author: ANDREWS, Presiding Judge. MCFADDEN, Judge,

text:
    A14A0006.
    BAKER v. THE STATE.
    (761 SE2d 477)
   ANDREWS, Presiding Judge.

Based on stipulated evidence presented at a bench trial on September 22,2011, Lauren Taylor Baker was found guilty of driving under the influence of alcohol. After her motion for a new trial was denied, she filed a timely notice of appeal on May 24, 2012. After a hearing, the trial court dismissed the appeal on June 28, 2013, finding an unreasonable delay in the filing of the transcript. Baker appeals from the trial court’s order dismissing the prior appeal.

Baker’s brief on appeal violates numerous rules of this Court. The brief was filed late in violation of Court of Appeals Rule 23 (a). The brief violates Court of Appeals Rules 22 and 25 because it contains no citations to the record on appeal, does not comply with structure and content requirements, and does not contain any enumeration of errors.

We dismiss the appeal because the brief fails to set forth any enumeration of errors. “This Court and the Supreme Court of Georgia have made clear that failure to file an enumeration of errors requires dismissal of an appeal, and that arguments raised in the appellate brief are not made issues on appeal unless they are properly enumerated as error.” Miles v. Emmons, 234 Ga. App. 487 (507 SE2d 762) (1998); Strom v. London, 257 Ga. App. 889 (572 SE2d 409) (2002); Riley v. Ga. Dept. of Revenue, 295 Ga. App. 656, 657 (673 SE2d 49) (2009); Lowery v. State, 225 Ga. 814 (171 SE2d 500) (1969). Appellate court review is for the correction of errors of law made by the trial court. Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).

An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. OCGA § 5-6-40. The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors.

Id.; Adamson v. Sanders, 279 Ga. 187, 188 (611 SE2d 44) (2005) (“Matters not enumerated as error will not be considered on appeal.”). Nothing in Baker’s brief can be construed as an enumeration of error as to a specific ruling made by the trial court. Compare State v. Crapp, 317 Ga. App. 744-745 (732 SE2d 806) (2012).

It is not this Court’s function to review the record and brief to attempt to discern the error appellant intended to assert.

[AJttempts to provide sua sponte appellate review of criminal appeals notwithstanding incomplete appellate filings, while laudable, do a disservice to the courts, the criminal defendant, and appellate counsel. The practice requires the appellate court to ignore jurisdictional and procedural statutes and rules, and to change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error.

Rowland v. State, 264 Ga. 872, 874 (452 SE2d 756) (1995) (footnote omitted). Rather, where a represented criminal defendant’s deficient appeal is subject to dismissal, the appropriate means to uniformly treat such appeals and protect the defendant’s due process right to an appeal is to dismiss the appeal while recognizing the defendant’s right to apply in the trial court for an out-of-time appeal. Id. at 874-876.

Accordingly, the appeal is dismissed for failure to set forth any enumeration of errors. If Baker wishes to pursue appellate relief, she may seek an out-of-time appeal in the trial court. Pursuant to the procedure established in Rowland, supra, a copy of this opinion shall be sent to Baker and a copy shall be sent to her appellate counsel with direction to send a copy to Baker. If Baker subsequently seeks and obtains permission from the trial court to pursue an out-of-time appeal, she then will have 30 days within which to file her notice of appeal to this Court to commence the appeal of her conviction. If the trial court denies an out-of-time appeal, Baker will have 30 days to file a notice of appeal to this Court to commence an appeal of the denial of her motion for out-of-time appeal. Fulton v. State, 277 Ga. 126 (587 SE2d 20) (2003).

Appeal dismissed.

Boggs and Branch, JJ., concur. Barnes, P. J., and Doyle, P. J., concur in judgment only. McFadden, J., dissents. Ray, J., concurs in judgment of the dissent.

MCFADDEN, Judge,

dissenting.

Because the Appellate Practice Act limits our authority to dismiss appeals, I respectfully dissent. The Act prohibits us from dismissing except in three specified circumstances:

No appeal shall be dismissed or its validity affected for any cause nor shall consideration of any enumerated error be refused, except: (1) For failure to file notice of appeal within the time required as provided in this article or within any extension of time granted hereunder; (2) Where the decision or judgment is not then appealable; or (3) Where the questions presented have become moot.

OCGA § 5-6-48 (b). These three specific circumstances allowing for dismissal do not include an appellant’s failure to include an enumeration of error within her brief.

The Appellate Practice Act requires us to consider any appeal “[wjhere it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought tobe asserted upon appeal[.]” OCGA § 5-6-48 (f) (emphasis supplied). We must construe this provision, as any other provision of the Appellate Practice Act, liberally “to bring about a decision on the merits of [this] case . . . and to avoid dismissal of [it] or refusal to consider any points raised therein, except as may be specifically referred to in [the Act].” OCGA § 5-6-30.

Construing the Appellate Practice Act liberally, we should not dismiss Baker’s appeal but should consider its merits, because it is apparent from her notice of appeal and the record “exactly what judgment is appealed from and what errors are asserted.” Leslie v. Williams, 235 Ga. App. 657, 659 (1) (510 SE2d 130) (1998), overruled on other grounds by Herr v. Withers, 237 Ga. App. 420, 421-422 (515 SE2d 174) (1999). In her notice of appeal, Baker states that she “appeals to the Georgia Court of Appeals from the dismissal of the original appeal of the Defendant on June 24,2013,” and explains that the order from which she appeals dismissed her original appeal “for failure to file the transcript of the evidence in a timely manner, although the transcript was filed prior to the June 24,2013, hearing.” And the arguments raised in Baker’s three-and-a-half page brief pertain to this claim of error.

Decided July 9, 2014.

Daniel J. Ortiz II, for appellant.

Donna S. Gopaul, Solicitor-General, Inez Grant, Assistant Solicitor-General, for appellee.

Nevertheless, it is equally apparent from Baker’s short and deficient brief that she has failed to show error. I would therefore affirm without opinion under Court of Appeals Rule 36.

I am authorized to state that Judge Ray concurs in the judgment of the dissent.

       The State’s motion to dismiss the appeal because the appellant’s brief was not timely filed is denied.

       Baker’s motion (set forth in the brief) for an appeal bond is moot and is also dismissed.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A14A0108.
    GMAC MORTGAGE, LLC v. PHARIS.
    (761 SE2d 480)
   McFadden, Judge.

At issue in this appeal is whether a security deed has been extinguished through foreclosure. We conclude that it has not.

GMAC Mortgage, LLC appeals the grant of summary judgment to Monroe Pharis in GMAC’s action for equitable subrogation and unjust enrichment. Construed in favor of GMAC, as the party opposing summary judgment, the evidence shows that GMAC made a loan to Rhonda Hall secured by her home. Hall is Pharis’s daughter and his co-defendant below. A portion of the proceeds of the GMAC loan were used to discharge a security deed in favor of JP Morgan Chase. While the GMAC loan process was ongoing, Hall’s then husband, exercising a power of attorney from Hall, opened a line of credit with the First National Bank of Decatur County, which was also secured by the subject property. First National foreclosed, Pharis purchased the property at the foreclosure sale, and GMAC brought this action. GMAC seeks a declaration, under a theory of equitable subrogation, that its security deed is intact and superior to Pharis’s interest in the property and alternatively repayment under a theory of unjust enrichment.

We agree with GMAC that the trial court erred by granting summary judgment to Pharis on the equitable subrogation claim, because, contrary to Pharis’s argument, equitable subrogation is an available remedy even when a lender has constructive knowledge of an intervening lien. We likewise agree with GMAC that the trial court erred by granting summary judgment to Pharis on the unjust enrichment claim, because there is at least some evidence that Pharis knew that GMAC and its borrower intended the GMAC security deed to be in first priority position when Pharis obtained his interest in the property. Accordingly, we reverse the grant of summary judgment to Pharis.

A trial court may grant summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). “We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.” Citifinancial Svcs. v. Varner, 320 Ga. App. 170 (739 SE2d 477) (2013) (citation omitted).

Viewed in the light most favorable to GMAC as the nonmovant, the record shows that Hall, Pharis’s daughter, owned a house in Bainbridge, Georgia encumbered by a security deed in favor of JP Morgan Chase Bank. The security deed was recorded April 30, 2007. In May 2008, Hall began the process to apply for a $ 100,000 loan from GMAC. The loan was closed on June 9, 2008, when Hall signed a promissory note and security deed in favor of GMAC. A portion of the loan proceeds was used to pay the $61,766.14 balance of the JP Morgan Chase first mortgage, as GMAC and Hall had intended. GMAC’s security deed was recorded June 20,2008, and a cancellation of JP Morgan Chase’s security deed was recorded on July 7, 2008.

Meanwhile, Hall granted her husband (whom she later divorced) a limited power of attorney for the purpose of obtaining a business line of credit. The limited power of attorney expressly stated that the line of credit was secured “by second lien security deed” on the property. The husband obtained a $50,000 line of credit from First National Bank of Decatur County, which was secured by the property. Both the limited power of attorney and First National Bank’s deed to secure debt were recorded May 27, 2008, three weeks before the GMAC loan closed. Eventually, First National Bank foreclosed its security deed, and Pharis purchased the property at foreclosure sale in December 2010.

GMAC filed this action, seeking a declaration that its interest in the property was unaffected by the foreclosure sale; that its interest has first priority position under the doctrine of equitable subrogation; and that its interest is superior to Pharis’s interest. Alternatively, GMAC sought repayment of the funds it advanced under a theory of unjust enrichment. The trial court granted Pharis’s motion for summary judgment, and GMAC filed this appeal.

1. Equitable subrogation.

Under the doctrine of equitable subrogation, “where it was the intent of the parties to substitute a new creditor’s rights for the rights of the creditor that is being paid off, the new creditor steps into the shoes of the old creditor in terms of priority.” Kim v. First Intercontinental Bank, 326 Ga. App. 424, 426 (1) (756 SE2d 655) (2014) (citation and punctuation omitted). In Davis v. Johnson, 241 Ga. 436 (246 SE2d 297) (1978), our Supreme Court set out the complete rule:

Where one advances money to pay off an encumbrance on realty either at the instance of the owner of the property or the holder of the encumbrance, either upon the express understanding or under circumstances under which an understanding will be implied that the advance made is to be secured by the senior lien on the property, in the event the new security is for any reason not a first lien on the property, the holder of the security, if not chargeable with culpable or inexcusable neglect, will be subrogated to the rights of the prior encumbrancer under the security held by him, unless the superior or equal equity of others would be prejudiced thereby.

Id. at 438. “The principle of subrogation is applied for the purpose of doing of complete, essential, and perfect justice between all the parties, without regard to form, and its object is the prevention of injustice. The courts incline rather to extend than restrict the principle.” Greer v. Provident Bank, 282 Ga. App. 566, 568 (639 SE2d 377) (2006) (citation and punctuation omitted). The fact that a party took title by foreclosure sale does not preclude the availability of subrogation, even though generally the purchaser at a foreclosure sale takes title divested of all incumbrances made since the creation of the power of sale in the deed to secure debt. Id. at 568-569. See also Massey Assocs. v. Whitehorse Inns of Ga., 265 Ga. 320, 321 (454 SE2d 513) (1995) (“[T]he purchaser at a sale under a power of sale in a deed to secure debt takes the grantee’s title divested of all incumbrances made since the creation of the power.”) (citation and punctuation omitted).

GMAC argues that the trial court erred in granting Pharis summary judgment because the undisputed evidence shows that it advanced funds to Hall to pay off a prior senior lien holder with the intent that GMAC would occupy a first priority security position, that it did not engage in culpable or inexcusable neglect, and that Pharis would not be prejudiced. Pharis counters that, as a matter of law, GMAC is not entitled to equitable subrogation because it had constructive notice of First National Bank’s security deed, which was recorded before GMAC’s security deed, and because GMAC was a mere volunteer when it paid off the JP Morgan Chase security deed. He adds that, in any event, the undisputed evidence shows that GMAC was negligent and that GMAC’s argument regarding prejudice lacks merit.

(a) Pharis is not entitled to summary judgment as a matter of law.

In arguing that, as a matter of law, equitable subrogation is not available to GMAC because it had constructive notice of First National Bank’s intervening lien, Pharis relies on a 1931 case which has since been disapproved, Fed. Land Bank of Columbia v. Barron, 173 Ga. 242 (160 SE 228) (1931). In that case our Supreme Court did reject a claim of equitable subrogation on the ground that the party seeking subrogation had constructive notice of an intervening lien and had no agreement with the holder of the intervening lien to be subrogated to first position. Id. at 245-248. But those holdings of Barron were disapproved seven years later. In McCollum v. Lark, 187 Ga. 292 (200 SE 276) (1938), our Supreme Court held:

[Wjhere a lender, pursuant to a contract with the debtor, in which the debtor agrees and does attempt to convey to the lender a first lien upon realty, and agrees that the lender shall be subrogated to the rights and remedies of any creditor whose lien he discharges, does discharge and has marked canceled of record a lien superior to his conveyance from the debtor, without actual but only constructive notice of another lien of record, the lender is subrogated to the creditor whose lien he discharges, and may revive the lien and enforce the same against the property when to do so would not prejudice the rights of the intervening lienor who has done nothing to change his position in reliance upon the cancellation of the lien paid.

Id. at 303-304. The court held that “an agreement for subrogation, made with either the debtor or the creditor, is sufficient to overcome constructive notice of the intervening lien,” and disapproved “any-ruling or intimation to the contrary” in Barron. Id. at 303 (emphasis supplied).

The other cases on which Pharis relies, Bankers Trust Co. v. Hardy, 281 Ga. 561, 564 & n. 9 (640 SE2d 18) (2007), Federated Mut. Ins. Co. v. Northland Ins. Co., 254 Ga. 402 (329 SE2d 493) (1985), Callan Court Co. v. Citizens & Southern Nat. Bank, 184 Ga. 87, 134 (5) (190 SE 831) (1937), and Transport Ins. Co. v. Maryland Cas. Co., 187 Ga. App. 361, 364 (3) (370 SE2d 188) (1988), all cite Barron for the principle that a mere volunteer is not entitled to subrogation. This principle does not apply here, though, because there is evidence that when Hall borrowed the money from GMAC, she agreed that GMAC would be subrogated to JP Morgan Chase’s first priority position. See Bankers Trust Co., supra, 281 Ga. at 564 (“The doctrine of subrogation is not applied for the mere stranger or volunteer who has paid the debt of another, without any assignment or agreement for subrogation, being under no legal obligation to make the payment, and not being compelled to do so for the preservation of any rights or property of his own.”) (citations omitted; emphasis supplied). In short all of the cases cited by Pharis have been disapproved or are inapplicable, and he has not shown that he was entitled to summary judgment as a matter of law.

(b) Certain material facts are in dispute.

GMAC argues the trial court erred by granting summary judgment because at best, the material issues of whether it is chargeable with culpable or inexcusable neglect and whether Pharis’s equity would be prejudiced by granting GMAC equitable subrogation are in dispute. We agree.

The sole fact on which Pharis relies in claiming that it is undisputed that GMAC engaged in inexcusable neglect is that GMAC did not conduct a title search in the period between the recording of the First National Bank security deed and the closing of the GMAC loan. This fact alone does not demonstrate inexcusable neglect, however. “Even if [GMAC] erred in overlooking the [security] deed in a title examination, such error would not be egregious enough to defeat a claim for equitable subrogation.” Citifinancial Svcs., supra, 320 Ga. App. at 174 (holding bank’s failure to conduct title examination did not amount to inexcusable neglect that would defeat claims for equitable subrogation). See also McCollum, supra, 187 Ga. at 303-304 (holding a lender may be entitled to subrogation even if it had constructive notice of intervening lien). Perforce Pharis has not shown that the issue of inexcusable neglect is undisputed.

Nor is the material issue of whether Pharis would be prejudiced by allowing equitable subrogation undisputed. Indeed, Pharis points to no evidence of prejudice. In Citifinancial Svcs., supra, 320 Ga. App. at 174, we concluded that the evidence did not show that the defendant would be prejudiced by the grant of equitable subrogation in favor of the lender because the defendant’s acquisition of the property was a part of an intra-familial transaction; she admitted that she was attempting to maintain the property for the benefit of her son and his wife; the son and his wife obtained the benefits of the loan proceeds and encumbered the property with the liens in favor of the lender; and the original senior security deed was still of record at the time the defendant acquired the property. Whether the evidence in the instant case likewise shows lack of prejudice is not undisputed.

Construing the evidence in the light most favorable to GMAC, we conclude that it has raised disputed questions of material fact concerning whether it engaged in inexcusable neglect and whether Pharis would be prejudiced if equitable subrogation were granted.

2. Unjust enrichment.

The doctrine of unjust enrichment applies “when as a matter of fact there is no legal contract, but when the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefitted party equitably ought to return or compensate for.” Tuvim v. United Jewish Communities, 285 Ga. 632, 635 (2) (680 SE2d 827) (2009) (citation and punctuation omitted). Relying on Reidling v. Holcomb, 225 Ga. App. 229 (483 SE2d 624) (1997), Pharis argues that, as a matter of law, GMAC cannot pursue its claim for unjust enrichment because its failure to conduct a title search was negligent. But see OCGA § 23-2-32 (b) (“Relief may be granted even in cases of negligence by the complainant if it appears that the other party has not been prejudiced thereby.”). Reidling is distinguishable on its facts. In Reidling, we rejected the unjust enrichment claim of a purchaser of a lot who started construction of a house on the wrong parcel of land. We explained that

[tjhe concept of unjust enrichment in law is premised upon the principle that a party cannot induce, accept, or encourage another to furnish or render something of value to such party and avoid payment for the value received; otherwise the party has been unjustly enriched at the expense of another and, in fairness and good conscience, must reimburse the other to the extent of the value conferred. Inherent in unjust enrichment is the requirement that the receiving party knew of the value being bestowed upon them by another and failed to stop the act or to reject the benefit.

Decided July 9, 2014.

Taylor English Duma, Gregory G. Schultz, Deborah J. Livesay, for appellant.

Ben Kirbo, for appellee.

Reidling, supra, 225 Ga. App. at 232 (2). Because there was no evidence that the defendant in Reidling knew of the purchaser’s mistake or was standing by while the house was being built, thereby intentionally failing to act so that a greater benefit would flow to him from the purchaser’s negligence in building on the wrong lot, we held that the defendant was entitled to summary judgment on the claim. Id. Here, however, Pharis had at least constructive knowledge that GMAC had a security deed that was intended to be first in position: the security deed itself was of record at the time of the foreclosure sale and the limited power of attorney under which Hall’s former husband obtained the First National Bank line of credit was of record at the time of the sale, and expressly stated that the line of credit was secured “by second lien security deed” on the property. Pharis’s purchase of the property arose from the foreclosure of this lien. Because Reidling is distinguishable, the trial court erred in granting summary judgment on this basis.

Judgment reversed.

Andrews, P. J., and Ray, J., concur.

         GMAC also named Hall as a defendant, but she filed a petition for bankruptcy. GMAC dismissed all claims against Hall without prejudice after the trial court granted Pharis summary judgment.

       GMAC filed its notice of appeal to the Supreme Court on the basis of its jurisdiction over “[cjases involving title to land,” Ga. Const. 1983, Art. VI, Sec. VI, Par. Ill (1), and “[a]ll equity cases.” Id., Par. Ill (2). That court transferred the case to us, finding that “equitable subrogation claims do not invoke [that] court’s equity jurisdiction since the grant of equitable relief is wholly dependent on the resolution of the underlying legal issues,” and “unjust enrichment claims do not involve substantive issues of equity since resolution of the claim involves only the determination of the underlying legal issues.” (citations omitted.)


text:
    A14A0197.
    WEBB et al. v. BANK OF AMERICA, N.A.
    (761 SE2d 485)
   McFadden, Judge.

This appeal is from a trial court order granting a motion to dismiss a complaint for failure to state a claim. Because it does not appear with certainty that the plaintiffs would be entitled to no relief under any set of facts that could be proven in support of their claims, we reverse.

Nancy Webb and Henry Webb filed a complaint against Bank of America, N.A., asserting counts for wrongful foreclosure, intentional infliction of emotional distress, breach of contract, breach of the duty of good faith and fair dealing, declaratory judgment and attorney fees. In support of these counts, they alleged as operative facts that the bank held a mortgage on their house; that they faithfully made timely mortgage payments; that after a financial hardship the parties entered into a loan modification agreement; that the Webbs made loan payments to the bank pursuant to this agreement for 14 months; that the bank then abruptly stopped accepting loan payments and threatened the Webbs with foreclosure; that the Webbs received a purported foreclosure notice; that the bank in extreme bad faith intentionally breached the written loan modification agreement by refusing to accept payments thereunder; and that the Webbs have suffered extreme mental pain, emotional distress and physical illness requiring medical treatment as a result of the bank’s wanton, wilful and malicious conduct.

The bank filed a motion to dismiss the complaint, pursuant to OCGA § 9-11-12 (b) (6), for failure to state a claim upon which relief could be granted. The trial court granted the motion and dismissed the complaint for failure to state a claim. The Webbs appeal.

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor. In other words, a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014) (citations and punctuation omitted).

In this case, the allegations of the complaint do not disclose with certainty that the Webbs would not be entitled to relief under any set of provable facts. On the contrary, within the framework of the complaint, they may be able to introduce evidence supporting their allegations, including the bank’s purported intentional breach of the loan modification agreement and threats of foreclosure despite the Webbs’ alleged compliance with that agreement. Such a state of provable facts could warrant a grant of the relief sought for wrongful foreclosure, breach of contract and their other counts. See Racette v. Bank of America, 318 Ga. App. 171 (733 SE2d 457) (2012) (reversing dismissal of claims for wrongful foreclosure, breach of contract, breach of duty of good faith and fair dealing, and attorney fees); Blue View Corp. v. Bell, 298 Ga. App. 277, 279 (1) (679 SE2d 739) (2009) (an intentional wrongful foreclosure can be the basis for an action for intentional infliction of emotional distress).

Decided July 9, 2014.

Thomas C. Blaska, Smith Collins, W. Anthony Collins, Jr., for appellants.

McGuireWoods, Andrew G. Phillips, Jarrod S. Mendel, for appellee.

Contrary to the bank’s arguments, the purported failure to allege certain elements of the various causes of action set forth in the complaint does not mandate dismissal. “[I]t is no longer necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” Scott v. Scott, 311 Ga. App. 726, 729 (1) (716 SE2d 809) (2011) (citations and punctuation omitted). Likewise, the bank’s own factual allegations, such as its claim that there was no binding modification agreement, do not require dismissal of the complaint for failure to state a claim. “This is factual evidence which may or may not be developed during discovery and can be considered on a subsequent motion for summary judgment.” Austin, supra at 775. Because it cannot be said with certainty that within the framework of the complaint no evidence could be introduced that would support the claims for relief, “the motion to dismiss should have been denied.” Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997).

Judgment reversed.

Boggs and Branch, JJ., concur.


author: McFADDEN, Judge.

text:
    A14A0240.
    BELOATE v. PEDEN.
    (761 SE2d 487)
   McFADDEN, Judge.

The maternal grandmother of minor child A. B. filed a petition seeking visitation rights with the child. After an evidentiary hearing, the trial court granted the petition and awarded grandparent visitation. The father of A. B. appeals, challenging the sufficiency of the evidence supporting the grandparent visitation order and claiming that the trial court erred in requiring him to bear a portion of the cost of the court-appointed guardian ad litem. Because there is sufficient evidence from which a rational trier of fact could have found that the grandparent visitation was authorized, we affirm the trial court’s visitation ruling. With regard to the guardian ad litem fees, there were two rulings, one of which the father acquiesced in; however, he properly challenged the second request for such fees, and because the petitioning grandparent alone was required to bear the expense of the court-appointed guardian ad litem, we reverse that portion of the trial court’s ruling.

1. Sufficiency of the evidence.
On appeal from an order granting grandparent visitation, we view the evidence in the light most favorable to the trial court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the mandated visitation was authorized. We do not weigh the evidence or determine witness credibility, but defer to the trial court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.

Luke v. Luke, 280 Ga. App. 607, 609-610 (1) (634 SE2d 439) (2006) (citations omitted).

So viewed, the evidence shows that A. B. was born on December 11, 2001. By the time A. B. was approximately three years old, the unwed parents had ended their relationship, the mother was in a drug rehabilitation program, and the father and A. B. had moved into the paternal grandparents’ house. The mother later began a relationship with another man, and on May 5, 2008, gave birth to D. C., the half-brother of A. B. In the meantime, the father of A. B. had initiated a custody action, which resulted in a January 2009 consent order, pursuant to which the mother and father had joint legal custody of A. B., the father had sole physical custody, and the mother had visitation rights. According to the maternal grandmother, the father and his mother stopped allowing visitations, did not respond to telephone calls or letters, and thwarted various attempts to contact the child. On December 15, 2010, A. B.’s mother died of an accidental prescription drug overdose.

After the mother’s death, the maternal grandmother filed the underlying petition for visitation, claiming that she had not been allowed to visit with A. B. since the father had gained physical custody. It was stipulated at the hearing on the petition that A. B. had recently begun seeing a counselor to address emotional issues regarding the loss of her mother, that the father wanted the maternal grandmother to be involved with the counseling, and that the maternal grandmother had agreed to do so. At the conclusion of the hearing, the guardian ad litem, who had been appointed to represent the child’s interests and to investigate the matter, confirmed that the father and his family had blocked telephone calls and had limited the maternal grandmother’s contact with the child. The guardian ad litem recommended that the court award visitation rights to the maternal grandmother, opining that the paternal grandmother does not like the maternal grandmother’s family, so “there won’t be one minute of visitation for them that you don’t order.”

In granting visitation rights to the maternal grandmother, the trial court found, among other things, that the father’s

delay in obtaining counseling for the minor child has caused continued problems in her grieving, and [her] having nightmares that have caused harm and ha[ve] been damaging to the minor child. The Court finds by clear and convincing evidence that the father is surrounded by family members who are not in any way encouraging him to facilitate and allow the minor child to have a relationship with the maternal grandmother and the child’s maternal extended family. The Court finds that the minor child would be harmed emotionally as she has been by not having a relationship with them and not being able to discuss that her mother has died, who her mother was, and looking at pictures of her maternal family. The Court finds that it would be in the best interest of the minor child to have visitation and a relationship with her maternal extended family.

OCGA § 19-7-3, which is commonly referred to as the Grandparent Visitation Statute,

was enacted to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild, where, as here, a child’s parent objects. In this regard, the statute codified a standard for the trial courts to utilize in balancing the wishes of an alienated grandparent, the rights of the parents, and the interests of the child.

Sheppard v. McCraney, 317 Ga. App. 91, 92 (730 SE2d 721) (2012) (citations and punctuation omitted).

In challenging the sufficiency of the evidence in this case, the father relies on language set forth in subsection (c) of the statute, pertaining to physical or emotional harm being reasonably likely to result if visitation is not granted. See OCGA § 19-7-3 (c) (1) (D). However, regardless of whether or not the standard under that subsection was met, the father’s reliance on that language is misplaced because the more pertinent standard governing this case is set forth in subsection (d) of the statute, which provides:

Notwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased, incapacitated, or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds that such visitation would be in the best interests of the child. The custodial parent’s judgment as to the best interests of the child regarding visitation shall be given deference by the court but shall not be conclusive.

OCGA § 19-7-3 (d).

Here, the mother of A. B. is deceased, and therefore the trial court was authorized to exercise its discretion and award visitation to the maternal grandparent based on a finding that such visitation would be in the best interests of the child. The trial court’s express finding that visitation is in A. B.’s best interests is supported, not only by the maternal grandmother’s testimony and the guardian ad litem’s recommendation, but by the father’s own testimony. He testified that A. B. loved her mother, that she has said she never really got a chance to know her mother, and that it is extremely important for her to learn about her mother and have nice memories of her. The father explained that he had asked the maternal grandmother to participate in A. B.’s counseling because it was suggested by the counselor as a healthy way to approach the mother’s death, because the maternal grandmother can expose A. B. to information about her mother “in a way that no one else could or can,” and because “I think it would be in the best interest of [A. B.].” Likewise, when asked about visitation, the father testified affirmatively that he was willing to let the maternal grandmother have a regular visitation schedule, and that he wanted “[wjhat’s in [A. B.’s] best interest” so that she “is happy and healthy.”

Having reviewed all of the evidence in the light most favorable to the trial court’s judgment, we conclude that there is sufficient clear and convincing evidence to support the finding that grandparent visitation is in the child’s best interests. “Thus, [the father] has failed to show that the visitation order is deficient as claimed.” Luke, supra at 611 (2) (citation omitted).

2. Guardian ad litem.

On January 10, 2012, the trial court entered an order appointing a guardian ad litem to represent the child’s interests. In that order, the trial court ordered the maternal grandmother to pay $1,500 and the father to pay $500 for the guardian’s fees. No objection was raised to that order, and both parties complied with it, paying the ordered amounts.

Over a year later, at the conclusion of the visitation hearing held on April 26, 2013, the guardian ad litem stated that she had incurred additional fees and requested that they be paid by both parties. The father’s attorney objected to the request, arguing that under OCGA § 19-7-3 (e) the petitioning grandparent is solely responsible for the guardian fees and asking that the entirety of any remaining fees be assigned to the maternal grandmother for payment. The trial court ruled against the father, ordering that he pay 25 percent of the remaining guardian ad litem fees.

On appeal, the father argues that the trial court erred in ordering him to pay any portion of the remaining guardian ad litem fees and further requests that all fees already paid by him pursuant to the first order be refunded to him. With regard to the request for a refund of previously paid fees, no such request was made in the trial court. Rather, as noted above, the father never objected to the initial 2012 order requiring him to pay a portion of the fees, submitted to that order by paying the fees, and at the 2013 hearing argued only that he should not be held responsible for any newly incurred fees. Accordingly, he acquiesced in the first order requiring him to pay a portion of the guardian ad litem fees and waived any argument concerning a refund by failing to raise it in the trial court. See McBride v. Murray, 287 Ga. 99, 102 (694 SE2d 99) (2010) (a litigant cannot submit to a ruling, acquiesce in it, and still complain of the same); Champion Windows of Chattanooga v. Edwards, 326 Ga. App. 232, 242 (2), n. 9 (756 SE2d 314) (2014) (issues and objections not raised in and ruled on by the trial court are deemed waived and cannot be raised for the first time on appeal).

As for the trial court’s subsequent ruling that the father must pay a portion of the remaining guardian ad litem fees, we agree that such ruling was erroneous. OCGA § 19-7-3 (e) (1) states that “[i]f the court finds that the grandparent or grandparents can bear the cost without unreasonable financial hardship, the court, at the sole expense of the petitioning grandparent or grandparents, may . . . [a]ppoint a guardian ad litem for the minor child[.]” (Emphasis supplied.) This statute plainly provides that if a guardian ad litem is appointed in a grandparent visitation case such as this one, then it shall be at the sole expense of the petitioning grandparent. Nothing in the statute contemplates holding the defendant parent liable for the expense of a court-appointed guardian ad litem. Because the trial court’s ruling at the 2013 hearing that the father must pay a portion of the remaining guardian ad litem fees contravenes the plain language of the statute, it must be reversed.

Decided July 9, 2014.

Moss & Rothenberg, Robert A. Moss, for appellant.

Nicholas G. Dumich, Rogen J. Rozen, for appellee.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Ray, J., concur.


author: ANDREWS, Presiding Judge.

text:
    A14A0324.
    In the Interest of G. Q. et al., children.
    (761 SE2d 490)
   ANDREWS, Presiding Judge.

The putative biological father of G. Q. and Y. Q., minor children, appeals the order of the Juvenile Court of Coweta County terminating his parental rights. The appellant contends the juvenile court erred by terminating his parental rights because the court incorrectly found that the appellant had been personally served with the termination petition, terminated his rights “before the first witness was sworn” and made subsequent findings of fact and conclusions of law about the appellant during the termination hearing, and denied his motion to continue the termination hearing. Because the juvenile court correctly found that the appellant lacked standing to challenge the termination of his parental rights, we affirm.

Due to the nature of the appellant’s claims, a chronological review of the history of this case is warranted. The Coweta County Department of Family and Children Services (DFCS) originally opened its case on G. Q., G. Q.’s mother and the appellant in 2010 because G. Q. tested positive for marijuana at birth. From June 2011 forward, DFCS was unable to contact the appellant or G. Q.’s mother despite multiple attempts. On January 11, 2012, the appellant, a participant in the Coweta County drug court, appeared for a regularly scheduled court session. Prior to the court appearance, the appellant tested positive for cocaine use and, as a result, faced incarceration. The appellant brought G. Q. with him to court, stating that the child’s mother left the child with him and that, as a result, the appellant would be unable to report to jail until a few days later when a relative could care for G. Q. The appellant was taken into custody at the January 11, 2012 court appearance, and DFCS obtained an order on the same date to take G. Q. into immediate custody.

Two days later, on January 13, 2012, DFCS filed a deprivation petition as to G. Q. The summons for the deprivation petition was served upon the appellant on January 26, 2012. The summons and process provided, in part:

If you want a lawyer, but are unable to hire a lawyer without undue financial hardship, you must immediately contact the Public Defender’s Office at (770) 254-2704 so that they may inquire into your financial circumstances and if you do qualify for an indigent lawyer, then one will be appointed to represent you. DO NOT WAIT UNTIL THE DAY OF COURT TO REQUEST AN ATTORNEY.

(Emphasis in original.) In addition, the proof of service form for the summons and process stated:

If you want a lawyer but are not able to hire a lawyer without undue financial hardship, you may ask a lawyer to be appointed to represent you. The Court would inquire into your financial circumstances and if the Court finds you to be financially unable to hire a lawyer, then a lawyer will be appointed to represent you. If you want a lawyer appointed to represent you, you must let the Court or the officer of this Court handling this case know that you want a lawyer immediately.

The petition alleged that G. Q. was deprived because the appellant tested positive for cocaine use, the mother was unemployed, and DFCS knew nothing about “her current drug use, living arrangements, income or ability to properly care for [G. Q.].” The juvenile court conducted a hearing on DFCS’ deprivation petition on February 8,2012 and entered an order adjudicating G. Q. deprived on February 20, 2012.

Five months later, the mother gave birth to the couple’s second child, Y. Q., on July 13,2012. Because both the mother and Y. Q. tested positive for marijuana at the child’s birth, DFCS obtained an order to take immediate custody of Y. Q. on July 14, 2012. DFCS then filed a deprivation petition related to Y. Q. on July 17, 2012, alleging that Y. Q. tested positive for marijuana at birth; that the mother had no prenatal care, tested positive for cocaine use during pregnancy, moved frequently, and had no transportation, financial support, or provisions for Y Q.; and that the appellant was incarcerated for drug violations. The summons for the July 17, 2012 deprivation petition was served upon the appellant on July 30, 2012. The summons and process contained notices of the appellant’s right to counsel identical to those provided him in connection with G. Q.’s deprivation petition. Following an August 8, 2012 hearing, the juvenile court adjudicated Y. Q. deprived in an order entered August 23, 2012.

As part of the July 11, 2012 and August 16, 2012 case plans for G. Q., DFCS notified the appellant that one of his reunification goals was to “legitimate his child [G. Q.].” The appellant executed the plans on or about October 18,2012. Likewise, in its December 13, 2012 case plan for Y. Q., DFCS notified the appellant as early as September 12, 2012 that a goal for his reunification with Y. Q. was that he, as “the putative father, must prove paternity and legitimate [Y. Q.] as his legal child.” The appellant executed that portion of the plan on or about September 21, 2012. Additional case plan reports for G. Q. and Y. Q., both dated January 28, 2013, included identical requirements that the appellant must legitimate his minor children. The appellant executed each of these plans.

Thereafter, following continued inaction by the children’s parents, DFCS filed a petition for termination of the appellant’s parental rights on March 8, 2013, noting therein that the appellant could be “personally served with summons and process at the Coweta County Jail.” Included in the petition is the following statement:

Pursuant to O.C.G.A. § 15-11-96 (h), any biological father of the above-named children is hereby notified that he will lose all rights to the children and will not be entitled to object to termination of his parental rights to the children unless, within thirty (30) days of his receipt of notice as provided for in O.C.G.A. § 15-11-96 (e), he files:
(1) a petition to legitimate your child named herein, pursuant to O.C.G.A. § 19-7-22; and
(2) notice of filing of the petition to legitimate with the Juvenile Court of Coweta County, in which action is pending.
Said biological father is also notified that he will lose all rights to his children and the Court shall enter an order terminating all of his parental rights to his children and he may not thereafter object to the termination of his rights to the children if within thirty (30) days from his receipt of the notice provided for in O.C.G.A. § 15-11-96 (e) he:
(1) does not file a legitimation petition and give notice as required in O.C.G.A. § 15-11-96 (h);
(2) file a legitimation petition which is subsequently dismissed for failure to prosecute; or
(3) file a legitimation petition and the action is subsequently concluded without a Court order declaring a finding that he is the legal father of the child.

The summons and process was served upon the appellant on March 12,2013. The summons and process each contained language apprising the appellant of his right to counsel. Thereafter, the juvenile court conducted a pre-trial hearing on the termination of the appellant’s parental rights on April 17, 2013. Although no transcript for that hearing is included in the record before this Court, the record confirms that the appellant appeared for the hearing and requested counsel, which the trial court provided in an order filed April 29, 2013.

The appellant, through his newly appointed counsel, filed a petition to legitimate G. Q. andY. Q. on May 3,2013. Following a May 20, 2013 hearing, during which the juvenile court determined that the appellant lacked standing to challenge the termination of his parental rights, the court entered an order terminating both the appellant’s and the mother’s parental rights on May 30, 2013. Of note, the juvenile court found that neither the appellant nor the children’s mother had any contact with G. Q. or Y. Q. since Y. Q.’s birth.

This Court reviews “an order terminating parental rights in a light favorable to the juvenile court’s ruling to determine whether the finder of fact could have found by clear and convincing evidence that the parent’s rights to custody should be terminated.” In the Interest of K. E. A., 292 Ga. App. 239, 239-240 (663 SE2d 822) (2008). See also In the Interest of D. W., 264 Ga. App. 833, 834 (592 SE2d 679) (2003). “In so doing, we do not weigh the evidence or determine the credibility of witnesses; rather, we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met.” In the Interest of K. E. A., supra, 292 Ga. App. at 240.

1. In his first enumeration of error, the appellant contends that the juvenile court erred when it terminated his parental rights because it: (1) failed to establish when the appellant was personally served with the termination petition; (2) admitted evidence containing hearsay; and (3) strictly enforced the time requirements of OCGA § 15-11-96 (h) and (i) (2013) in violation of his right to counsel. These arguments are not persuasive.

(a) Service of the Petition for Termination of Parental Rights.

The appellant first asserts that the juvenile court failed to establish that he was personally served with the termination petition on March 12,2013, which implicated the 30-daytime requirements of OCGA § 15-11-96 (h) and (i) in which to file a petition to legitimate G. Q. and Y. Q. This argument is without merit.

As we have noted, DFCS filed a petition to terminate the appellant’s parental rights on March 8, 2013. The summons and process, also datedMarch8,2013, was served upon the appellant on March 12, 2013. Thereafter, the juvenile court conducted a pre-trial hearing on the termination of the appellant’s parental rights on April 17, 2013. The record confirms that the appellant appeared for the hearing and requested counsel, which the trial court provided in an order filed April 29, 2013. The appellant, through his newly appointed counsel, filed a petition to legitimate G. Q. and Y. Q. on May 3, 2013.

Upon the filing of a petition to terminate parental rights, if there is a biological father who is not the legal father of the child and his identity is known to the petitioner, he is entitled to notice of the proceedings. OCGA § 15-11-96 (e) (1) (2013). In such circumstances, notice may be given by registered or certified mail or statutory overnight delivery; “[by pjersonal service, which notice shall be deemed received when personal service is perfected”; or by publication. OCGA § 15-11-96 (f) (1), (f) (2) (2013). When notice is given as required by OCGA § 15-11-96 (e) (1),

it shall advise such biological father who is not the legal father that he loses all rights to the child and will not be entitled to object to the termination of his rights to the child unless, within 30 days of receipt of such notice, he files:
(1) A petition to legitimate the child . . . ; and
(2) Notice of the filing of the petition to legitimate or acknowledgment of legitimation. . . .

OCGA § 15-11-96 (h) (2013). If no legitimation petition and notice pursuant to OCGA § 15-11-96 (h) are filed within 30 days of the summons, the juvenile court “shall enter an order terminating all such father’s rights to the child and such father may not thereafter object to the termination of his rights to the child.” OCGA § 15-11-96 (i) (2013) (emphasis supplied). See also In the Interest of D. W., supra, 264 Ga. App. at 835 (1) (“The word ‘shall’ as used in such Code section cannot be construed [other than mandatory]. In its ordinary signification, ‘shall’ is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission.”) (punctuation omitted).

“When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service.” Earley v. Dyson, 220 Ga. App. 586 (469 SE2d 841) (1996). See also Cornelius v. Wood, 223 Ga. App. 339, 341 (1) (477 SE2d 595) (1996). Areturn may be challenged by proof that it is untrue, but a return “is of itself. . . evidence of a high order, and can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.” Lester v. Crooms, Inc., 157 Ga. App. 377, 379 (277 SE2d 751) (1981). See also Cornelius, supra, 233 Ga. App. at 341 (1); Earley, supra, 220 Ga. App. at 586; Hickey v. Merrit, 128 Ga. App. 764, 766 (197 SE2d 833) (1973). Accordingly, “[i]n the absence of contradictory evidence, [a] trial court [is] warranted in accepting the certificate of service as proof of personal service.” Lester, 157 Ga. App. at 380.

As a threshold matter, the record does not reveal any challenge to service of the March 8, 2013 summons and process at the April 17, 2013 pre-trial hearing or in the May 16, 2013 motion to continue the May 20, 2013 termination hearing. Indeed, even now, the appellant does not appear to contend that service of the summons and process was improper or, most tellingly, that the appellant did not receive notice as evidenced by the proof of service; rather, the appellant simply claims that the return included “the indecipherable signature of an unknown individual.”

Pretermitting the question of whether the appellant properly raised this argument, the record confirms the findings by the juvenile court on the issue of service. The evidence of record demonstrates that the appellant received service of the termination petition on March 12, 2013. The record further confirms that the appellant received notice of the proceedings and that his parental rights would be terminated in the absence of a legitimation petition. Compare In the Interest of K. E. A., supra, 292 Ga. App. at 241 (1). Finally, the juvenile court determined that the appellant “was personally served on March 12, 2013 with the Petition and Summons” and that the petition and summons “recite the statutory legitimation notice contained in O.C.G.A. [§] 15-11-96 (h).” The appellant provided the juvenile court with no proffer of “the strongest [evidence] of which the nature of the case will admit” that might demonstrate service of the termination petition was improper. See generally Franchell v. Clark, 241 Ga. App. 128, 130 (1) (524 SE2d 512) (1999) (“Although [the appellant] claimfs] that [he was] prevented from presenting live testimony at the [termination] hearing, [he has] failed to make a proffer of evidence and to explain how such evidence would have assisted in resolving the controversy about the perfection of service.”). The appellant has the burden to show error affirmatively in the record. See, e.g., In the Interest of B. B. S., 253 Ga. App. 119, 120 (3) (558 SE2d 447) (2001). Having shown none, the appellant is not entitled to reversal on the question of service. To the contrary, for the reasons stated above, we find that the juvenile court did not err in finding that the appellant was personally served with the termination petition on March 12, 2013.

(b) “Strict Application” of OCGA § 15-11-96 (h)-(i) Time Requirements.

Because the issue of service controls the remainder of our analysis, we turn next to the appellant’s contention that the juvenile court’s “strict application” of the 30-day time requirements of OCGA § 15-11-96 (h) and (i) violated his right of counsel. The appellant’s argument is unavailing.

In view of the service of the termination petition upon him on March 12, 2013, the appellant was required to file a petition to legitimate the minor children not later than April 11, 2013 to preserve his interest in the children. See OCGA § 15-11-96 (i) (1). This, the appellant failed to do.* ***** Because the appellant failed to legitimate G. Q. and Y. Q., “he lacked standing to challenge the termination of his parental rights.” In the Interest of J. S., 302 Ga. App. 342, 345 (2) (691 SE2d 250) (2010). See also In the Interest of T. B. R., 304 Ga. App. 773, 786 (4) (697 SE2d 878) (2010); In the Interest of C. G., 289 Ga. App. 844, 855 (3) (658 SE2d 448) (2008); In the Interest of L. S. T., 286 Ga. App. 638, 639 (2) (649 SE2d 841) (2007); In the Interest of J. L. E., 281 Ga. App. 805, 807 (637 SE2d 446) (2006); In the Interest of D. W., supra, 264 Ga. App. at 834. “In the absence of standing to object to the termination of parental rights for an untimely filed legitimation petition, entry of an order terminating parental rights [is] mandatory.” In the Interest of D. W., supra, 264 Ga. App. at 835 (1). See also OCGA § 15-11-96 (i); In the Interest of S. M. R., 286 Ga. App. 139, 141 (648 SE2d 697) (2007). Given his lack of standing, the appellant’s contention that he was denied the right to counsel during the termination hearing is moot. In the Interest ofj. S., supra, 302 Ga. App. at 345 (2). See also In the Interest of D. W., supra, 264 Ga. App. at 835 (2); In the Interest of A. M. R., supra, 230 Ga. App. at 137 (“A request is required before an appointment is made.”).

(c) Admission of Exhibit A (2).

Next, the appellant claims, without citation to authority, that the juvenile court erred in admitting Exhibit A (2) into evidence because it contained hearsay and violated the appellant’s right to confrontation. In fact, the proof of service form had already been filed of record with the juvenile court on March 13, 2013. Having failed to support this claim with any meaningful argument or with “statutory or legal authority for this contention,” the claim is deemed abandoned pursuant to Court of Appeals Rule 25 (c) (2). See generally Williams v. State, 296 Ga. App. 707, 708 (2) (675 SE2d 596) (2009).

Decided July 9, 2014.

Azadeh Golshan, for appellants.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Linda B. Taylor, for appellee.

2. The appellant asserts the juvenile court erred because it terminated his parental rights “before the first witness was sworn” and thereafter made findings of fact and conclusions of law about the appellant during the termination hearing. In fact, the juvenile court determined that the appellant failed "to satisfy the requirements of OCGA § 15-11-96 (h) because he did not file a timely petition for legitimation of the minor children. Accordingly, the juvenile court found that the appellant had no standing to challenge the termination proceeding. See OCGA § 15-11-96 (i); In the Interest of T. B. R., supra, 304 Ga. App. at 786 (4); In the Interest of J. S., supra, 302 Ga. App. at 345 (2); In the Interest of D. W., supra, 264 Ga. App. at 834. In view of these findings and our discussion in Division 1, we again conclude that the juvenile court’s decision was not error.

3. Finally, the appellant argues that the juvenile court erred when it denied his motion to continue the May 20, 2013 termination hearing. We find that the appellant’s argument on this point is moot by virtue of our discussion in Divisions 1 and 2. See In the Interest of T. B. R., supra, 304 Ga. App. at 786 (4).

Judgment affirmed.

McFadden and Ray, JJ., concur.

       Although the statute was not specifically cited in the summons and process, we find this language satisfies the notification requirements of OCGA § 15-11-39 (d) (2012).

       Of note, a copy of the petition was also served upon the appellant’s current counsel.

       The record does not include a ruling on the appellant’s legitimation petition. However, the outcome of the appellant’s petition is irrelevant to our review.

       The appellant has not enumerated as error that the evidence was insufficient to support the juvenile court’s termination of the appellant’s parental rights.

       Although the Civil Practice Act has not been adopted by, and is not binding on, the juvenile courts, see In the Interest of A. J. M., 277 Ga. App. 646, 647 (1) (627 SE2d 399) (2006), OCGA § 15-11-96 (c) (2013) requires service “in the manner provided in Code Section 9-11-4.” Cases analyzing service of process under OCGA § 9-11-4 are therefore instructive.

       We take particular issue with the appellant’s claim that the juvenile court did not inform him of his right to an attorney. On at least four occasions, in six separate documents, the appellant was notified of his right to counsel. That the appellant did not request counsel until April 17,2013, after receiving initial notice of his right to counsel on or about January 26,2012, is attributable solely to the appellant’s inaction and provides no basis for relief. See In the Interest of A. M.R., 230 Ga. App. 133, 137 (2) (495 SE2d 615) (1998) (“Arequest is required before an appointment is made.”). Moreover, “[b]ecause termination of parental rights is a civil matter that does not involve a constitutional right to counsel, the putative father must establish harm as well as error to warrant reversal.” In the Interest of K. E. A., supra, 292 Ga. App. at 243 (3). See also In the Interest of A. M. R., supra, 230 Ga. App. at 136 (2). In this case, the appellant has not demonstrated that he was harmed by the absence of counsel. “Indeed, given the putative father’s lack of effort prior to the termination hearing, we fail to see how counsel would have aided the father’s case.” In the Interest of K. E. A., supra, 292 Ga. App. at 243 (3).

       The requirement to legitimate his children should have come as no surprise to the appellant. We note that the appellant knew or should have known as early as July 11,2012 that a petition for legitimation was a requirement to regain custody of his children. The appellant was again notified of this requirement on or about August 16, 2012, September 21, 2012, October 18,2012 and January 28,2013. Finally, the termination petition warned the appellant that he would lose all rights to the children if he did not timely file a petition for legitimation. Nonetheless, the appellant did not exercise this right until May 3, 2013, at least three weeks after the time for filing a petition for legitimation expired.

       The appellant has not included within his argument any reference to an allegedly erroneous finding of fact or conclusion of law by the juvenile court. It therefore appears that the appellant’s argument, which is itself unsupported by a single citation to authority, is that the juvenile court erred by entering findings of fact and conclusions of law at all. This assertion is also deemed abandoned pursuant to Court of Appeals Rule 25 (c) (2). See generally Williams, supra, 296 Ga. App. at 708 (2).


author: Dillard, Judge.

text:
    A14A0337.
    STEWART v. THE STATE.
    (761 SE2d 497)
   Dillard, Judge.

Following a trial by jury, Kayla Stewart was convicted of possession of cocaine. On appeal, Stewart contends that the evidence was insufficient to sustain her conviction. We agree and, accordingly, reverse.

Viewed in the light most favorable to the jury’s verdict, the record shows that Stewart and her then-boyfriend, Robert Beasley, and Beasley’s friend, Natdaniel Whetstone, were indicted for trafficking in cocaine. This indictment resulted from law enforcement’s discovery of drugs in a Newnan hotel room that Stewart and Beasley shared on December 24, 2011, after responding to a call from the hotel. Stewart, who still lived in her parents’ home, informed law enforcement that she rented the room so that she and Beasley could spend some time together. At 10:00 p.m., however, Stewart decided to leave the hotel because she was frustrated by constant interruptions from Beasley’s friends, including Whetstone. Beasley remained in the room with Whetstone until approximately 11:00 p.m., when the two left the premises to go shoot pool.

At trial, Whetstone—who testified for the State in exchange for dismissal of the charges against him—noted that prior to leaving the hotel room, Beasley smoked marijuana, which he pulled from a white bag that was inside the hotel-room microwave. Beasley informed Whetstone that the bag contained “yams,” which Whetstone understood to mean cocaine. Whetstone also observed Beasley remove cash from a drawer.

According to Whetstone, after getting into his car to leave, Beasley noticed law enforcement arriving at the hotel, and, as a result, he asked Whetstone to circle the building to see if officers were going inside of his room. Then, not long after driving away from the hotel, the two men were stopped by law enforcement after officers entered the room and discovered marijuana, cocaine, and a large stack of cash, all in plain view. Stewart was apprehended later, and she and Beasley were subsequently tried and convicted, although the jury convicted Stewart of the lesser offense of simple possession. This appeal follows.

In her brief, Stewart contends that the evidence is insufficient to sustain her conviction when the sole evidence linking her to the discovered contraband was her rental of the hotel room and her presence in the room at times throughout the evening. We agree.

It is undisputed that Stewart did not actually possess the drugs and, therefore, the issue is whether she was in joint constructive possession of the drugs. And as we have previously explained, that question turns on whether Stewart and the other defendants “knowingly shared the power and intention to exercise dominion or control over [the drugs].” But mere “spatial proximity” to contraband is not sufficient to prove constructive possession. Instead, the State must show that the defendant had “the power and intent to exercise control over the drugs, which requires evidence of some meaningful connection between the defendant and the drugs.” And it is well established that “[m]ere presence where contraband is found when others have equal access to the substance is insufficient to support a conviction.”* Indeed, when it is affirmatively shown that others had “equal access or opportunity to commit the crime, a defendant’s mere presence at premises where contraband is discovered, without more, is insufficient to support a conviction.”

Here, the evidence—which included a surveillance video, video still-shots of the hotel hallway, and a registration record—shows that Stewart rented the hotel room for the use of two occupants; that she arrived at the hotel with Beasley on the evening in question; that the two carried their belongings into the room at approximately 7:00 p.m.; and that she left the property at various points, the final time being at 10:00 p.m. Moreover, according to Whetstone, the first time he visited Beasley at the hotel on the evening of December 24, Stewart was picking up takeout food. And Stewart left the room for good at approximately 10:00 p.m., when Whetstone visited for a second time and Beasley informed Stewart that he was going to shoot pool with Whetstone.

Stewart later informed law enforcement that she rented the room in order to spend time alone with Beasley and that she left because she was upset by constant interruptions from Beasley’s friends. And Whetstone testified that it was only after Stewart left the room that Beasley retrieved marijuana from the microwave in the room, indicated that the microwave contained cocaine, smoked the marijuana, and retrieved cash from a drawer. Put another way, Whetstone affirmatively testified that no contraband was in plain view when Stewart was in the room. Additionally, it was only after Stewart left that law enforcement was called to the hotel with regard to concerns that the occupants of the room were smoking marijuana and, upon entering the hotel, noticed a smell of burning marijuana emanating from the vicinity of the room. Accordingly, there was no evidence linking Stewart to the contraband that was discovered by law enforcement, save her rental of and earlier presence in the room. And there was affirmative evidence that others had equal access to the room, rebutting as a matter of law any presumption of possession arising from the fact that Stewart rented the room in her name. For all of these reasons, we reverse Stewart’s conviction.

Decided July 9, 2014.

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Timothy M. Marlow, Assistant District Attorney, for appellee.

Judgment reversed.

Doyle, P. J., and Miller, J., concur.

       Stewart was tried with Robert Beasley, whose appeal we address separately in Beasley v. State, 328 Ga. App. 96 (761 SE2d 509) (2014).

       Because we reverse Stewart’s conviction for insufficient evidence, we do not address her second enumeration of error, which is that the trial court erred in denying her motion to suppress evidence.

        See, e.g., Castillo v. State, 288 Ga. App. 828, 828 (655 SE2d 695) (2007).

         See OCGA § 16-13-31 (a) (1) (“Any person who sells, manufactures, delivers, or brings into this state or who is in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine ... commits the felony offense of trafficking in cocaine . . . .”).

        See Urban Dictionary, http://www.urbandictionary.com/define.php7terreF:YAM (retrieved June 25, 2014) (defining “yams” as, inter alia, a “street name for a type of drug,.. . ounces of coke [i.e., cocaine]” (citing Young Jeezy, And Then What? (feat. Mannie Fresh), on Let’s Get It: Thug Motivation 101 (Corporate Thugs/Def Jam Records 2005) (“First I’m going stack my flo’/(And then what?)/Then I’m going stack some mo’/(And then what?)/Close shop then I do my count/Hide the rest of the yams at my auntie house.” (emphasis supplied))).

       Specifically, an officer saw suspected marijuana residue on a table, the remainder of a smoked marijuana cigarette, and items commonly used to package and smoke marijuana. The table drawer was also open, revealing a large stack of cash. And next to the table was a microwave sitting ajar, which contained multiple baggies of suspected rock and powder cocaine. The bags were later confirmed to contain 37.46 grams of cocaine, with two bags tested and confirmed to contain cocaine that was 37.6 percent pure and 43.4 percent pure, respectively.

        See OCGA § 16-13-30 (a) (“Except as authorized by this article, it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance.”); Smith v. State, 323 Ga. App. 668, 669 (1) (747 SE2d 859) (2013) (“Since the indictment in this case alleged that [the defendant] possessed more than 28 grams of cocaine, simple possession of cocaine was a lesser offense included as a matter of fact in the charged offense of cocaine trafficking.”).

        Scott v. State, 326 Ga. App. 115, 117 (1) (756 SE2d 220) (2014) (punctuation omitted).

        Id.

        Id. (punctuation omitted).

        Stringer v. State, 275 Ga. App. 519, 521 (621 SE2d 761) (2005); see also Person v. State, 155 Ga. App. 106, 107 (270 SE2d 319) (1980) (“[M]erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” (punctuation omitted)); Blankenship v. State, 135 Ga. App. 482, 483 (218 SE2d 157) (1975).

        Stringer, 275 Ga. App. at 521 (punctuation omitted); see also Person, 155 Ga. App. at 107.

        See Stringer, 275 Ga. App. at 521 (noting, in reversing conviction, that “there was no evidence that the nightstand drawer, which contained the cocaine, or the dresser drawers were ever open at any time that [the defendant] may have been in the room”).

        See id.

        See Stringer, 275 Ga. App. at 521-22 (“[T]here is no evidence connecting [the defendant] with the cocaine other than his presence at the hotel and the fact that he registered the room in his name. Neither of these two facts is sufficient to connect [the defendant] with the crime.”); Person, 155 Ga. App. at 108 (“As there is nothing other than [the defendant’s] presence in the room to connect him to the contraband, the evidence is not sufficient to support his conviction.”); Granger v. State, 142 Ga. App. 612, 614 (1) (236 SE2d 762) (1977) (reversing conviction when “[a]ll that the [S]tate proved was that another defendant. . . had the sole possession of the controlled substances” found in a hotel room). Cf. Conyers v. State, 302 Ga. App. 95, 97 (1) (690 SE2d 233) (2010) (affirming conviction when room was rented in defendant’s name; defendant made statements to undercover officer that indicated his knowledge that hotel room contained drugs; and defendant invited undercover officer into room to purchase drugs, and drugs and paraphernalia were in plain view upon entering); Glass v. State, 304 Ga. App. 414, 419 (3) (696 SE2d 140) (2010) (“[I]n addition to evidence that [the defendant] rented Room 248, had a key to the suite, and was going to the suite at a time when a great quantity and variety of drugs were in open view, there was other evidence linking him to the contraband found there, including his suspicious behavior upon seeing officers near the suite and the presence of his personal property inside the suite.”); Nelson v. State, 305 Ga. App. 425, 427 (1) (699 SE2d 783) (2010) (holding that the evidence supported a finding that the defendant “was present in the small hotel room filled with drugs and drug paraphernalia in plain view during at least three drug transactions that occurred within a two-hour period, that he possessed the two marked bills taken from the informant and the $50 bills taken from the undercover officer, and that he alone possessed the cash proceeds from the drug sales, that he permitted [a co-defendant] to give out his cell phone number so that the undercover officer could make future drug deals with them, that he lied about his identity to the police, and that he previously had been convicted of a similar crime”); Hall v. State, 283 Ga. App. 266, 268 (641 SE2d 264) (2007) (rejecting contention that defendant was unaware of drugs in hotel room when, inter alia, “the marijuana that prompted [his] arrest was lying on the bed practically on top of [his] money clip and a handgun that [he] admitted was his,” a “pipe and second handgun were also on the bed in plain view,” and “a third weapon that [he] claimed was not his was found in the drawer of a nightstand with [his] billfold”).

        See Stringer, 275 Ga. App. at 522 (“Without admissible evidence linking [the defendant] to the cocaine and given the affirmative evidence of equal access by [a co-defendant], any presumption of possession arising from the fact that [the defendant] rented the hotel room in his name has been rebutted as a matter of law.”).


text:
    A14A0368.
    MAPEI CORPORATION v. PROSSER.
    (761 SE2d 500)
   McFadden, Judge.

MAPEI Corporation sued former employee Stephen Prosser for violation of a contractual noncompete covenant. Finding that the agreement containing that noncompete covenant had been superseded by a subsequent agreement which covered substantially the same subject matter, contained a superseding-agreement clause, but omitted the noncompete covenant, the trial court granted summary judgment to Prosser. MAPEI appeals, arguing that the trial court erred in finding that the agreement omitting the noncompete covenant superseded the agreement containing that covenant. Specifically MAPEI argues that the agreement containing the noncompete covenant was revived by Prosser’s subsequent conduct: by his delivery to MAPEI’s representative of the previously-executed agreement containing the noncompete covenant or by his acceptance of compensation. Alternatively MAPEI invokes the doctrine of mutual mistake. And it argues that, even if most of the agreement containing the noncompete covenant is superseded, the noncompete covenant itself survives. We are not persuaded. We find this case to be controlled by the fundamental principle that a contract is formed upon the parties’ assent to its terms. OCGA §§ 13-3-1, 13-3-2. We agree with the trial court that Prosser’s execution of the agreement omitting the noncompete covenant created a contract entirely superseding the one containing that covenant, and we therefore affirm.

“We review a ruling on a motion for summary judgment de novo, viewing the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant.” American Control Systems v. Boyce, 303 Ga. App. 664, 665 (694 SE2d 141) (2010) (citation omitted).

So viewed, the record shows that Prosser, a chemist, became an employee of MAPEI when MAPEI acquired his employer in 2009. On June 7, 2011, as a condition of employment, Prosser signed the agreement containing the noncompete covenant. On June 14, 2011, Prosser signed a similar agreement omitting that noncompete covenant. Prosser ended his employment with MAPEI on October 26, 2011, and began working as a chemist for another company, which led to MAPEI’s filing this action for breach of the agreement containing the noncompete covenant. The parties moved for summary judgment. The trial court granted Prosser’s motion and denied MAPEI’s, finding that the agreement omitting the noncompete covenant replaced the agreement containing the noncompete covenant in whole. MAPEI filed this appeal.

1. The terms of the agreements.

(a) The June 7, 2011 agreement, containing the noncompete covenant.

The second introductory paragraph of the agreement containing the noncompete covenant referred to the agreement as “this Employee Confidentiality Agreement.” The agreement provided that for five years after his employment ended, Prosser would not disclose MAPEI’s confidential information, which it defined and which Prosser acknowledged was a “valuable and unique asset[ ] of [MAPEI,] ... essential to [its] success, and that. . . derive[s] economic value from not being known to those outside [MAPEI].” It included a nonsolicitation covenant, which provided that for a year after his employment ended, Prosser would not solicit MAPEI customers and employees. It included a noncompete covenant, which provided that Prosser would not

own, manage, operate, join, control, be employed by or with, consult with or work with a Competing Business anywhere in the United States where doing so [would] require [him] to provide a Competing Business with the same or similar services [he] provided to [MAPEI] while [he] was employed by [MAPEI].

It defined “competing business” as any entity that was “directly engaged in whole or in relevant part in any business or enterprise that is the same as, or similar as, the [b]usiness of [MAPEI], which is defined as a manufacturer of adhesives, sealants, and other chemical products for the building industry.”

The agreement required Prosser to acknowledge that all intellectual property he created while employed by MAPEI belonged to MAPEI and assigned his rights in such property to MAPEI.

It contained a superseding-agreement clause:

This Agreement, including the assignment [of rights to intellectual property] described in paragraph 7 above, shall continue after I am no longer employed by [MAPEI]. This Agreement totally replaces all prior contractual agreements or understandings between us, whether oral or written, about confidential information or any other subject matter contained herein.

(b) The June 14, 2011 agreement, omitting the noncompete covenant.

The agreement omitting the noncompete covenant shares many attributes of the agreement containing the noncompete covenant. In fact, large parts of it are identical. Like the preceding agreement, its second introductory paragraph referred to the agreement as “this Employee Confidentiality Agreement.” It provided that Prosser would not disclose MAPEI’s information, which it defined and which Prosser acknowledged in language almost identical to that of the preceding agreement, which contains the noncompete covenant, was a “valuable and unique asset of [MAPEI,] • • . essential to [its] success and that derives economic value from not being known to those outside [MAPEI].” In language identical to that of the preceding agreement, it required Prosser to acknowledge that all intellectual property he created while employed by MAPEI belonged to MAPEI and to assign his rights in such property to MAPEI, although the agreement omitting the noncompete covenant did not contain a provision appointing MAPEI as an attorney in fact for pursuing letters of patent as did the agreement containing the noncompete covenant. And it contained a subsequent-agreement clause identical to that of the agreement containing the noncompete covenant. But unlike the preceding agreement, it did not include nonsolicitation and noncompete covenants. And while the preceding agreement specified it was governed by Georgia law, the agreement omitting the noncompete covenant specified that it was governed by Florida law.

2. The agreement containing the noncompete covenant was not revived.

MAPEI argues that the trial court erred in ruling that the later-signed agreement nullified the agreement containing the non-compete covenant, and that, therefore, there was no binding noncompete clause at the time Prosser left MAPEI’s employment. It argues that Prosser revived the agreement containing the noncompete covenant by ratifying it after he had signed the agreement omitting the noncompete covenant.

As detailed above, both agreements contained identical superseding-agreement clauses providing that the agreement “totally replaces all prior contractual agreements or understandings between us, whether oral or written, about confidential information or any other subject matter contained herein.” And since both agreements concerned confidential information, whichever agreement became effective later replaced the prior agreement.

(a) Delivery.

MAPEI argues that the agreement containing the noncompete covenant became effective later, even though Prosser signed it first, because Prosser revived it when he physically handed it over to his boss in July 2011, without mentioning that he had signed the agreement omitting that covenant. The law of contracts is to the contrary. A contract that is intended to be signed by both parties, and so appears on its face, is complete when thus signed. Clarke Bros. v. McNatt, 132 Ga. 610, 614 (64 SE 795) (1909). Once both parties have assented to its terms, a contract is binding. OCGA § 13-3-2. Prosser’s acceptance of each contract, as evidenced by his dated signature, not the date he delivered the contract to MAPEI, is the effective date of each contract. See OCGA § 13-3-3. Indeed, in its statement of undisputed material facts, MAPEI asserts that Prosser signed and entered the agreement containing the noncompete covenant on June 7, 2011, and signed the agreement omitting that covenant on June 14, 2011. MAPEI has cited no authority for the proposition that Prosser’s handing the agreement containing the noncompete covenant to his boss in July, without mentioning the agreement omitting the non-compete covenant, amounts to a ratification and revival of the agreement containing the noncompete covenant. Cf. OCGA § 44-5-30 (“[A] deed to lands ... shall be delivered to the purchaser or his or her representative. . . .”).

(b) Acceptance of compensation.

MAPEI argues that an employee who accepts compensation under a later contract, which provides that it “supersedes any previous agreement,” ratifies terms of the later contract. But this proposition just as easily applies to the fact that Prosser accepted compensation under the contract omitting the noncompete covenant, as to the fact that he accepted compensation under the contract containing that covenant.

3. The evidence does not show a mutual mistake entitling MAPEI to reformation.

MAPEI argues that the trial court should have reformed the contract on the basis of a mutual mistake of fact: that the parties intended an agreement containing a noncompete covenant. To justify reformation of a contract on the ground of mutual mistake, the evidence of the mistake must be “clear, unequivocal, and decisive.” Prince v. Friedman, 202 Ga. 136, 138 (1) (42 SE2d 434) (1947). In support of its argument that the mistake was mutual, not simply its unilateral mistake in sending Prosser the agreement omitting the noncompete covenant, MAPEI points to the fact that Prosser received the agreement omitting the noncompete covenant but waited eight days to sign it, after he had already received and signed the agreement containing the noncompete covenant. Additionally, argues MAPEI, the heading on the agreement containing the noncompete covenant lists the state of Georgia, it states that Prosser’s job is exclusively or principally located in Georgia, and it provides that it is governed by Georgia law, while the heading on the agreement omitting the noncompete covenant lists the state of Florida, it does not specify the location of Prosser’s job, and it provides that it is governed by Florida law. These facts, MAPEI contends, prove that Prosser, who lives and works in Georgia, knew the agreement omitting the non-compete covenant was not intended for him. We do not agree that these facts are “clear, unequivocal, and decisive” evidence that Prosser mistakenly entered the agreement omitting the noncompete covenant. The evidence regarding Prosser’s delay in signing the agreement omitting the noncompete covenant is simply speculative; it even can be construed to show Prosser’s intent rather than a mistake: he had the two contracts in hand, yet signed the one most favorable to him. Any mistake, therefore, would be unilateral. And the evidence regarding the designation of Florida law as controlling is not clear evidence of a mistake, given that MAPEI is a Florida-based company that sent Prosser the agreement omitting the noncompete covenant from Florida.

4. The agreement omitting the noncompete covenant replaced the preceding agreement in its entirety.

MAPEI argues that even if Prosser did not ratify the agreement containing the noncompete covenant, the agreement omitting the noncompete covenant only replaced the confidentiality provisions of the agreement containing the noncompete covenant, leaving intact the noncompete and nonsolicitation covenants. This argument is defeated by the language of the superseding-agreement clause itself, which is identical in both agreements. That clause provides: “This Agreement totally replaces all prior contractual agreements or understandings between us, whether oral or written, about confidential information or any other subject matter contained herein.” As we have recently reiterated,

contract construction proceeds in a series of steps, moving from one to the next only if necessary. The construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. Because the first two of these steps involve questions of law, the trial court’s application of them is reviewed de novo on appeal.

Estate of Pitts v. City of Atlanta, 323 Ga. App. 70, 74 (4) (746 SE2d 698) (2013) (citation and punctuation omitted). We conclude that the language of the superseding-agreement clause is clear and unambiguous: the later-entered agreement replaces in their entirety all earlier-entered agreements that concerned a similar subject matter. Here, as discussed above, the two agreements concerned similar subject matters. Therefore, the later-entered agreement omitting the noncompete covenant replaced the earlier-entered agreement containing the noncompete covenant in its entirety. Given this holding, it is not necessary for us to reach MAPEI’s enumerations that the trial court erred in failing to find that Prosser breached the agreement containing the noncompete covenant and that the trial court erred in denying MAPEI’s motion for summary judgment.

Decided July 9, 2014.

Ogletree, Deakins, Nash, Smoak & Stewart, David P. Thatcher, Christopher M. Caiaccio, Gregory J. Hare, for appellant.

R. Leslie Way caster, Jr., for appellee.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


author: Andrews, Presiding Judge.

text:
    A14A0384.
    GREGG et al. v. FIRST CITIZENS BANK & TRUST COMPANY, INC.
    (761 SE2d 514)
   Andrews, Presiding Judge.

On February 25, 2010, First Citizens Bank & Trust Company, Inc. issued a promissory note to Sarah and William J. Gregg for the purchase of a lot located at The Currahee Club in Stephens County. The note required 23 monthly payments followed by a balloon payment due on or before March 11, 2012. When the Greggs failed to make certain payments as required, First Citizens filed suit on September 8, 2011 to recover the amount owed. The Greggs admitted that they failed to pay amounts due after April 11, 2011 but claimed a good faith dispute existed concerning the total amount owed. Following discovery, First Citizens moved for summary judgment, which the trial court granted. The Greggs appeal, arguing that First Citizens failed to satisfy its burden to prove the amount due under the note. Because the outcome of this case is controlled by our recent decision in the substantially similar case of Myers v. First Citizens Bank & Trust Co., 324 Ga. App. 293 (750 SE2d 378) (2013), we affirm the grant of summary judgment as to liability, but vacate the judgment amount and remand this case for a calculation of damages.

As in Myers, First Citizens supported its motion for summary judgment in this case with an affidavit from a bank employee, who averred that she “ha[s] knowledge of the facts set forth in [the ajffidavit.” Although the author of the affidavit proffered by First Citizens in this case is different, the remainder of the affidavit appears to be the same. The affidavit stated the amounts due on the note, including single figures for both principal and interest, plus attorney fees, but did not explain how these amounts were calculated. Nor did First Citizens provide evidence concerning the amounts, if any, paid by the Greggs or a basis for the attorney fee or interest calculations. Indeed, the only exhibit attached to the affidavit was a copy of the Greggs’ note.

Decided July 9, 2014.

John E. Taylor, for appellants.

Sanders, Ranch & Skilling, Brian C. Ranck, Matthew D. Skilling, for appellee.

As we noted in Myers, “where a party sues for damages, it has the burden of proof of showing the amount of loss in a manner in which the trial judge can calculate the amount of the loss with a reasonable degree of certainty.” 324 Ga. App. at 296. Here, First Citizens

offered no testimony or any documentation explaining its method of calculating the specific amounts sought, such as evidence of [the Greggs’] payment history or evidence showing how it calculated the interest or attorney fees sought. Where, as here, we cannot be certain of the amounts due under the terms of the agreement without reference to evidence outside the pleadings, the amounts are unliquidated and must be established. Because the pleadings do not contain evidence from which the trial court could confirm [First Citizens’] calculations of its purported damages, we must vacate and remand.

(Punctuation omitted.) Id. Accordingly, based upon the discussion and legal analysis in Myers, we find that First Citizens failed to carry its burden to prove the amount due under the Greggs’ note. It necessarily follows that the trial court erred when it entered a judgment amount in favor of First Citizens.

Judgment affirmed in part and vacated in part, and case remanded.

McFadden and Ray, JJ., concur.


author: DOYLE, Presiding Judge.

text:
    A14A0429.
    In the Interest of F. A. G. R., a child.
    (761 SE2d 512)
   DOYLE, Presiding Judge.

The custodians of F. A. G. R. (“Petitioners”) appeal from a juvenile court order declining to endorse their petition alleging F. A. G. R.’s deprivation and seeking to invoke the juvenile court’s jurisdiction. For the reasons that follow, we affirm.

The record shows that the Petitioners filed a petition in the juvenile court seeking a determination that F. A. G. R. was a deprived child. The petition alleged that F. A. G. R.’s date of birth was June 22, 1995, making him approximately two months shy of his eighteenth birthday on the date the petition was filed. The petition outlined F. A. G. R.’s history as a juvenile born in Honduras, who was allegedly forced by his parents to leave home as a 17-year-old and come to the United States to seek work. Along the journey, F. A. G. R. endured a kidnapping and other abuse before he was eventually apprehended by United States customs and border agents at the United States border in January 2013. Federal authorities placed F. A. G. R. in the custody of the United States Office of Refugee Resettlement, which ultimately contacted the Petitioners, one of whom is F. A. G. R.’s older cousin, and placed F. A. G. R. into their care in Hall County in March 2013.

The Petitioners further alleged that F. A. G. R. had enrolled in school, they were providing for his needs, and at least one of the Petitioners had authorization to work in the United States. Due to the circumstances of F. A. G. R.’s removal from his home and journey to the United States, the Petitioners alleged that F. A. G. R. was a deprived child, and they requested the juvenile court to exercise its jurisdiction over the petition. The juvenile court issued an order concluding that the petition lacked allegations sufficient for the court to exercise its jurisdiction, thereby declining to endorse the petition pursuant to OCGA § 15-11-37 (2013). The Petitioners now appeal, requesting this Court to reverse the juvenile court’s failure to endorse the petition and direct the juvenile court to hear the merits and issue a decision nunc pro tunc to the date of the original 2013 order.

We note that F. A. G. R. is no longer a minor. Seeking a deprivation order valid at the time F. A. G. R. was a juvenile, the Petitioners argue that they could use the deprivation findings in a back-dated order to obtain relief pursuant to the Special Immigrant Juvenile program under federal immigration law. “[T]he general rule is that appellate courts do not consider moot questions. Mootness is a question of court policy based on the theory that courts do not give opinions on abstract propositions of law that do not involve an actual controversy between parties.” Pretermitting whether the Petitioners are correct and their appeal is therefore not mooted by F. A. G. R.’s age, we conclude that the appeal is without merit.

OCGA § 15-11-37 (2013) provided as follows: “Apetition alleging delinquency, deprivation, or unruliness of a child shall not be filed unless the court or a person authorized by the court has determined and endorsed upon the petition that the filing of the petition is in the best interest of the public and the child.” The endorsement requirement provides the juvenile court with “discretion as to the filing of petitions in that court,” and is consistent with the “basic philosophy that [juvenile] matters shall be handled informally, if at all possible.” “Treatment as a juvenile is not an inherent right, but one granted by the General Assembly; therefore, the General Assembly may restrict or qualify that right as it” did in enacting the endorsement requirement.

Here, the juvenile court noted that the petition for a finding of deprivation alleged that the Petitioners were meeting F. A. G. R.’s needs, he was enrolled in and attending school, and he was suffering no neglect or abuse in any way while in their care. Thus, the court found no current or likely future deprivation in F. A. G. R.’s case.

Further, the juvenile court found that F. A. G. R. was two months from being eighteen years old, and a hearing on the petition could not be set for several weeks. Thus, the court correctly noted that any temporary custody order would have an effective duration of only two or three weeks “at best.” Citing all of these circumstances, the juvenile court found that F. A. G. R. had no present need for its intervention to support F. A. G. R.’s physical, mental, or emotional health, nor would the best interest of the public require endorsement of the petition.

Based on the record before us, we find no abuse of discretion on the part of the juvenile court. It is clear that F. A. G. R. was not currently suffering from a lack of care or control necessary for his physical, mental, or emotional health or morals, nor was he without a custodian. Further, in light of the timing of the petition so close to F. A. G. R.’s eighteenth birthday, at which time any custody or deprivation order would expire, the juvenile court’s decision not to exercise its jurisdiction as a matter of public interest was not an abuse of its discretion. Accordingly, we affirm.

Decided July 9, 2014.

Jessica M. Daman, for appellant.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       Former OCGA § 15-11-37 was repealed and reenacted by an Act effective on January 1, 2014, and applicable to proceedings commenced on or after that date. See Ga. L. 2013, pp. 294, 514, § 5-1. Accordingly, we apply the Code section in effect in 2013.

        In the Interest of T.H., 319 Ga. App. 216, 218 (735 SE2d 287) (2012).

       See generally Burns v. State, 281 Ga. 338, 342, n. 7 (638 SE2d 299) (2006) (pretermitting mootness question); Hinely v. State, 275 Ga. 777, 783 (3) (573 SE2d 66) (2002) (same).

       (Emphasis supplied.)

       (Citation, punctuation and emphasis omitted.) Lane v. Jones, 244 Ga. 17, 19 (3) (257 SE2d 525) (1979).

       Id.

       See OCGA § 15-11-2 (2) (C) (2013) (defining “child” in the deprivation context to be any individual under the age of 18 years). By definition, a “deprived child” must be a “child.” See OCGA § 15-11-2 (8).