text:
    A12A1595.
    CIRCLE K STORES, INC. v. T. O. H. ASSOCIATES, LTD.
    (734 SE2d 752)
   PHIPPS, Presiding Judge.

The trial court granted summary judgment to T. O. H. Associates, Ltd. (TOH) in TOH’s suit against Circle K Stores, Inc., alleging that Circle K breached the terms of a lease and an assignment and assumption of lease by failing to pay rent under the terms therein.

Circle K appeals, contending that the trial court erred in granting summary judgment to TOH because: (1) TOH’s acceptance of partial rent payments created a question of fact as to whether TOH departed from the material terms of the lease; (2) the lease had been terminated and thus Circle K had no obligation to pay the rent and costs accrued thereafter; (3) a question of fact remains as to the monthly rent due; and (4) a question of fact exists as to whether TOH properly mitigated its damages. For the reasons that follow, we affirm the grant of summary judgment as to liability, vacate the judgment as to damages, and remand the case to the trial court on the issue of damages.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.”

On or about November 9, 1987, TOH entered into a lease with National Convenience Stores, Inc. for the lease of certain real property. TOH was the lessor, and National Convenience was the lessee. According to the lease, National Convenience intended to construct a building and other improvements to the property for the purpose of operating a convenience store with self-serve gasoline. The lease was for a term of 25 years that would expire on or about November 9,2012.

On or about April 29, 1994, National Convenience assigned its interest in the lease to Circle K. The lease was subsequently assigned and re-assigned to various entities, but with Circle K remaining as a guarantor, under the terms of an assignment and assumption of lease document. In October 2009 and January 2010, TOH notified Circle K in writing of a delinquency in rental payments for the property by one of the assignees. To its notices, TOH attached documents showing rental and payment histories which showed full and partial rent payments past due from January 2009 to October 2009 and January 2010, respectively.

In March 2010, TOH filed a complaint alleging that Circle K breached the lease and assignment and assumption of lease by failing and refusing to pay, among other things, the monthly rent from February 1, 2009 to March 1, 2010, according to the terms of the documents. TOH later moved for summary judgment and submitted another invoice showing full and partial rent payments past due from January 2009 to April 1, 2011.

1. Circle K contends that the trial court erred in granting summary judgment to TOH because Circle K was not liable to TOH for rent under the lease terms. Circle K asserts that TOH had accepted partial rent payments from February 2009 to March 2011, and that “without proper notice of its intent to maintain the exact terms of the lease ... a question of fact [exists] as to whether the parties departed from the strict terms of the lease,” and thus, as to “what lease terms were in effect.”

A mutual departure from the terms of an agreement results in a quasi-new agreement suspending the original terms of the agreement until one party has given the other reasonable notice of its intent to rely on the original terms.... The question whether the parties’ mutual conduct caused a waiver and effected a quasi-new agreement ordinarily is a question for the jury. . . .

TOH’s manager deposed that although dating back to January 2009, TOH accepted partial rent payments from the current tenant (an assignee), TOH did not accept the partial rent payments “without identifying to the tenant that he’s underpaying his rent.” The manager deposed that he met with the tenant “probably once a month and attempted] to collect rent from him.” The manager deposed that TOH accepted the partial payments to offset and mitigate loss. When asked whether he had ever “said to [the tenant], You need to pay in full or we’re going to remove you from the property,” the manager deposed ‘We have said that to him.” And regarding the history of the lease prior to the current tenant, the manager deposed that “there were multitudes of defaults in this lease, almost monthly, from all of the tenants from the beginning,” and affirmed that “Circle K has in the past corrected any deficiency.”

To support its position, Circle K relies upon B-Lee’s Sales Co. v. Shelton, but that case is distinguishable. There, the landlord twice agreed to a reduced rate of rent and told the tenants to just “do the best you can” in making rent payments. In the present case, there was no evidence that any departure from the lease regarding rental payments was mutual, or that TOH agreed to waive the tenant’s liability for the shortfall between the amount of rent required by the lease documents and the partial payment amounts which TOH accepted to mitigate its loss.

“[0]ral modifications as to those matters in a contract required by the Statute of Frauds to be in writing are ineffective unless the contract as so modified has been acted on or performed by one of the parties.” One reason the performance of an oral modification to a written contract is an exception to the general rule is that

[a] plaintiff having accepted the benefits arising under the contract after being notified of an anticipated breach, and not having given notice of his intention to rely on its exact terms, but having continued to accept the benefits thereunder, may not recover for such alleged breach or failure to perform fully the complete terms of the original agreement.

There was no evidence that the current tenant notified TOH that it (the tenant) anticipated breaching the contract, thus barring TOH from recovering for such breach or failure to perform fully the complete terms of the original agreement. “[W]here... a modification of the written contract has been agreed to by all parties, performed by one and accepted by the other, there is a waiver of the provisions of the original contract as to rental amount.” As Circle K has failed to point to any agreement by TOH to modify the terms of the lease or assignment and assumption of lease, TOH has reserved its right to enforce that provision of the written contract relating to the rental amount. Accordingly, the trial court properly granted summary judgment to TOH in this regard.

2. Circle K contends that the trial court erred in granting summary judgment to TOH because the lease had been terminated as to two prior tenants, and thus, Circle K had no obligation to pay rent and costs accrued after the current tenant took occupancy. We disagree.

Circle K relies on Savannah Yacht Corp. v. Thunderbolt Marine, Inc., for the following proposition:

A surrender of a lease by operation of law may arise from any condition of facts voluntarily assumed by the parties and incompatible with the continued existence of the relation of landlord and tenant between them. Where a landlord exercises a control over the premises inconsistent with the tenant’s right of occupation, he thereby discharges the tenant from liability for future rent, and a cancellation or rescission of the contract is thus effected by agreement of the parties, express or implied.

The court further explained, however:

More specifically, where a landlord himself has retaken a property vacated by a tenant, thus “getting the use of the premises for himself,” any charging of rent after repossession is “not only illegal but wholly inequitable.” [] In Gay, for example, the plaintiff landlord allowed members of his family to occupy the property after the defendant tenants had abandoned it. [] We held that where “the plaintiff’s own testimony showed that he was not entitled to recover for the full year’s rent, on account of his admitted resumption of the possession,” the tenants were entitled to a nonsuit, or judgment as a matter of law. [] Likewise, in Brock Enterprises v. Dunham’s Bay Boat Co.,[] the court held that where a landlord took repossession of a boat repair facility, allowed another tenant to take possession, and began accepting rent from that tenant, the landlord’s conduct “demonstrated an ‘intent to terminate the lease and use the premises for (its) own benefit’ ” as a matter of law.

To show a surrender, a mutual agreement between lessor and lessee that the lease is terminated must be clearly proved.

Circle K’s reliance on Savannah Yacht Corp. is misplaced. Although in this case there was evidence that dispossessory actions were filed against two prior tenants, Circle Kpoints to no evidence showing that after those dispossessory actions were filed, TOH resumed possession of the property (or retook the property vacated by a tenant and thus, got the use of the premises) for itself; nor does Circle K make any argument to that effect.

According to Circle K, the two prior tenants against whom dispossessory actions were filed had abandoned the property.

In Georgia, if a tenant abandons leased premises without authorization prior to the expiration of the term, the landlord is not required to mitigate damages by reletting the premises. Rather, he may allow the premises to remain vacant and hold the tenant responsible for accruing rent.

Although the prior tenants’ occupancy of the premises had terminated, Circle K points to no proof that the leases, likewise, were terminated. The evidence showed that after any abandonment of the property, the lease was reassigned by the tenants.

When a motion for summary judgment is made and supported as provided in [OCGA § 9-11-56], an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [OCGA § 9-11-56], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Having failed to come forward with evidence to show a surrender of the lease by operation of law or by mutual agreement, Circle K failed to set forth specific facts showing that there is a genuine issue of whether the lease had been terminated. Accordingly, the trial court properly granted summary judgment to TOH regarding Circle K’s obligation to pay rent and costs after the current tenant took occupancy of the premises.

3. Circle K contends that the trial court erred in granting summary judgment to TOH as to the amount of damages due and as to the award of attorney fees because a question of fact remains as to the monthly rent due under the lease. We agree.

“It is axiomatic that [TOH], as plaintiff, had the burden to prove the amount of any alleged damages with reasonable certainty.” In its complaint, TOH requested that it be awarded, among other things, “damages representing the amount due under the terms of the Lease.” In moving for summary judgment, TOH presented the affidavit of its property manager who swore that Circle K had “failed and refused to pay TOH the outstanding amounts due and owing for rental payments and costs for the property” as provided in a document showing rental and payment histories attached as an exhibit to the affidavit. That invoice showed that from January 2009 to April 2011 rent was billed in the amount of $ 12,144.75 per month. Yet, in its motion for summary judgment, TOH attached a copy of the 1987 lease and of a “First Amendment of Lease” executed on July 20,1988, and showing rental payments, pertinently, due in the amount of $11,587 per month. The trial court apparently awarded damages based on the $12,144.75 figure shown on the invoice. But no explanation for the discrepancy between the figures shown in the invoice and those shown in the amended lease appears in the appellate record.

As a genuine issue of material fact exists as to the amount of rent due, we vacate the trial court’s grant of summary judgment as it pertains to the amount of rent due from January 2009 to April 2011, and as to the award of attorney fees; and we remand the case to the trial court for a determination of the amount of damages due and attorney fees, if any.

4. Circle K contends that the trial court erred in granting summary judgment to TOH because a question of fact exists as to whether TOH attempted to mitigate its damages. We do not agree.

“[T]he general rule, that it is the duty of a party suffering from the breach of a contract to diminish, if possible, the damages, has no application to a contract of lease.” Circle K argues that even if landlord-tenant law does not require TOH to mitigate its damages suffered as a result of a breach of a lease contract, Circle K is being sued based upon the guaranty provisions of the lease and the assignment and assumption of lease, and thus, TOH had a duty under those guaranty provisions to mitigate its damages.

Circle K points to no provision of the lease or assignment and assumption of lease that imposes upon TOH a duty to mitigate damages.

Further, assuming mitigation of damages was required, it is [Circle K] who bears the burden of alleging and proving as a defensive matter [TOHj’s failure to mitigate, and such a contention must be supported by evidence from which a jury could reasonably estimate the amount by which damages could have been mitigated.

To attempt to meet its burden and show that TOH could have mitigated its damages, Circle K asserts:

TOH has admitted it has not even attempted to find a new tenant for the Property, despite the lengthy history of [the current tenant] making reduced payments. At a minimum, the trial court should have addressed the issue of mitigation of damages under the guaranty, as well as whether TOH used commercially reasonable efforts to market the property.

Decided November 26, 2012.

Hunter, Maclean, Exley & Dunn, Bradley M. Harmon, for appellant.

McKee & Mitchell, Sammie M. Mitchell, for appellee.

Yet Circle K also asserted that prior to the reassignment of the lease to the current tenant, there had been discussions between TOH, Circle K, and a third party who was interested in taking over the lease obligations as a tenant, and that for reason(s) unknown, the third party was not assigned the lease. Circle K has not “show[n] as a matter of law, so as to preclude recovery altogether or of a particular amount, that [TOH] failed to mitigate [its] damages or to what extent [it] failed.” Accordingly, we find Circle K’s contention to be without merit.

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

Ellington, C. J., and Dillard, J., concur.

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted).

        Westmoreland, v. JW, LLC, 313 Ga.App. 486, 489 (2) (722 SE2d 102) (2012) (citations and punctuation omitted); see OCGA § 13-4-4.

       141 Ga.App. 870 (234 SE2d 702) (1977).

       Id. at 870.

       Id. at 872 (1) (citation and punctuation omitted).

       Id.

       Id. at 872-873 (1) (citations omitted).

       297 Ga.App. 104 (676 SE2d 728) (2009).

       Id. at 111 (2) (citation and punctuation omitted).

        Baldwin v. Lampkin, 14 Ga.App. 828 (82 SE 369) (1914), citing Gay v. Peake, 5 Ga.App. 583 (63 SE 650) (1909).

        Gay, supra at 584-585.

       Id.

       292 A.D.2d 681 (738 NYS2d 760) (2002).

        Savannah Yacht Corp., supra at 111-112 (2).

        Sirdah v. North Springs Assoc., 304 Ga. App. 348, 351 (1) (696 SE2d 391) (2010).

       Id. at 350 (1) (citations omitted).

       OCGA § 9-11-56 (e); see Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Post Realty Assoc. v. DSL Assoc., 228 Ga. App. 678, 679 (1) (492 SE2d 600) (1997) (citations omitted).

        Peterson v. Midas Realty Corp., 160 Ga.App. 333, 334 (287 SE2d 61) (1981) (citation and punctuation omitted).

        Lamb v. Decatur Fed. Sav. & Loan Assn., 201 Ga.App. 583, 587 (2) (411 SE2d 527) (1991) (citations and punctuation omitted).

       See id.


source: Caselaw Access Project

author: Ellington, Chief Judge. ANDREWS, Judge, MCFADDEN, Judge,

license: Public Domain

text:
    A10A1955.
    THE LANDINGS ASSOCIATION, INC. v. WILLIAMS et al. THE LANDINGS CLUB, INC. v. WILLIAMS et al.
    A10A1956.
    (736 SE2d 140)
   Ellington, Chief Judge.

In this action, the estate and heirs of Gwyneth Williams (collectively, “the appellees”) seek to recover damages from the owners of a lagoon where Williams was allegedly killed by a large alligator. The State Court of Chatham County denied in part the motion for summary judgment filed by the joint owners of the lagoon, The Landings Association, Inc. (“the association”) and The Landings Club, Inc. (“the club”) (collectively, “the owners”). In an earlier appeal, we concluded, inter alia, that a question of fact remains as to whether the owners failed, pursuant to the law of premises liability, to take reasonable steps to protect Williams from being attacked and killed by an alligator on their premises. See The Landings Assn. v. Williams, 309 Ga. App. 321, 324-326 (1) (711 SE2d 294) (2011). The Supreme Court of Georgia granted certiorari to determine whether we erred in reaching this conclusion. The Landings Assn. v. Williams, 291 Ga. 397 (728 SE2d 577) (2012). The Supreme Court found that the record shows that Williams had equal knowledge of the threat of alligators within the community and, therefore, that the owners are entitled to judgment as a matter of law on the appellees’ premises liability claims and reversed. Id. at 399. Accordingly, our decision in The Landings Assn. v. Williams, 309 Ga.App. at 324-326 (1), is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

The grant of certiorari did not reach Divisions 2, 3, or 4 of our opinion.

In Division 2, we considered the owners’ argument that, under the common law doctrine of animals ferae naturae, a landowner is not responsible as a matter of law for any harm caused by a free wild animal on the owner’s land. The Landings Assn. v. Williams, 309 Ga. App. at 327-329 (2). We held that, under Georgia law, the doctrine of animals ferae naturae does not operate as an exception to Georgia’s general principles regarding a landowner’s duty to exercise ordinary care in keeping its premises safe such as would confer a blanket immunity from liability for any harm caused by a free wild animal on the owner’s land. Id. We held that,

[ajlthough a defendant [owner or occupier] may he entitled to summary judgment where, as in Williams v. Gibbs, [123 Ga. App. 677 (182 SE2d 164) (1971) (physical precedent only),] there is no evidence that the [defendant] should have anticipated the presence of the wild animal that injured the plaintiff,

where there is evidence from which a jury could find that the defendant should have anticipated the presence of the wild animal and that it was reasonably foreseeable that its presence would render the premises unsafe for visitors, the defendant will not be entitled to judgment as a matter of law purely on the basis of the doctrine of animals ferae naturae. The Landings Assn. v. Williams, 309 Ga.App. at 328-329 (2). We have reviéwed Division 2 and conclude that it is consistent with the Supreme Court’s ruling, which likewise applied Georgia’s general principles of premises liability to the owners’ appellate arguments.

In Division 3, we considered the association’s argument that it was entitled to judgment as a matter of law on the appellees’ nuisance claim and held that the appellees’ complaint failed to state a claim for nuisance. The Landings Assn. v. Williams, 309 Ga.App. at 329-330 (3). Accordingly, we reversed the trial court’s summary judgment order in part. We have reviewed Division 3 and conclude that it is also consistent with the Supreme Court’s ruling.

As a result, our holdings in Divisions 2 and 3 of The Landings Assn. v. Williams, 309 Ga. App. at 327-330 (2), (3), became binding upon return of the remittitur and remain the judgment of this Court. Shadix v. Carroll County, 274 Ga. 560, 563-564 (1) (554 SE2d 465) (2001); Kaminer v. Canas, 294 Ga. App. 669, 670 (671 SE2d 175) (2008).

In Division 4 of our opinion, we considered the club’s argument that the trial court erred in considering certain experts’ depositions. The Landings Assn. v. Williams, 309 Ga.App. at 330 (4). Because we concluded that the owners were not entitled to judgment as a matter of law on the appellees’ premises liability claims, even when the challenged testimony was not considered, we concluded that the issue of whether the trial court abused its discretion in considering the testimony was moot. Id. Although it is not clear from the opinion of the Supreme Court whether it considered the challenged testimony, in the absence of an express ruling on the club’s argument, we find no basis for vacating that division of our opinion.

Judgment reversed.

Barnes, P. J., Phipps, P. J., and Miller, J., concur. Doyle, P. J., Andrews and McFadden, JJ., concur specially.

ANDREWS, Judge,

concurring specially.

In The Landings Assn. v. Williams, 291 Ga. 397 (728 SE2d 577) (2012), the Supreme Court stated that it granted certiorari to address this Court’s holding in The Landings Assn. v. Williams, 309 Ga.App. 321 (711 SE2d 294) (2011), that

a question of fact remained as to whether The Landings entities failed, pursuant to the law of premises liability, to take reasonable steps to protect Gwyneth Williams from being attacked and killed by an alligator in the planned residential community and golf club owned and/or managed by the Landings entities.

The Landings Assn., 291 Ga. at 397. The Supreme Court reversed the above holding and held that the Landings entities were entitled to summary judgment on the premises liability claims brought against them “[bjecause the record shows that Williams had equal knowledge of the threat of alligators within the community.” Id. Accordingly, I concur with the statement in the present majority opinion that “our decision in The Landings Assn. v. Williams, 309 Ga.App. at 324-326 (1), is vacated, and the judgment of the Supreme Court is made the judgment of this Court.”

Decided November 27, 2012.

Barrow & Ballew, Walter W. Ballew III, for appellant (case no. A10A1955).

Forbes, Foster & Pool, Morton G. Forbes, Johnny A. Foster, for appellant (case no. A10A1956).

Savage, Turner, Pinson & Karsman, Robert B. Turner, Brennan & Wasden, Travis D. Windsor, David M. Conner, Christopher D. Britt, for appellees.

Because the Supreme Court decided the premises liability claims solely on the basis of the equal knowledge rule, this rendered unnecessary and dicta any discussion in Division 2 of our prior decision in The Landings Assn., 309 Ga. App. 321, regarding application of the doctrine of animals ferae naturae. Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008). Accordingly, I disagree with the present majority opinion to the extent it states that Division 2 of our prior decision now establishes the binding law of the case or law of the State of Georgia regarding application of the doctrine of animals ferae naturae. Not only is the majority discussion of the doctrine of animals ferae naturae in our prior decision in The Landings Assn., 309 Ga. App. 321, non-binding dicta, it is erroneous dicta for the reasons stated in my prior dissenting opinion. Id. at 330-336.

I am authorized to state that Presiding Judge Doyle and Judge McFadden join in this opinion.

MCFADDEN, Judge,

concurring specially.

I agree with Judge Andrews that Division 2 of our original majority opinion is now dicta. But, as I concurred fully in our prior majority opinion and as the Supreme Court did not address the analysis in Division 2 of our prior majority opinion, I continue to agree with that analysis.


author: Branch, Judge.

text:
    A12A0806.
    RANSOM v. THE STATE.
    (734 SE2d 761)
   Branch, Judge.

Following a jury trial, Timothy Lamar Ransom was convicted of two counts of aggravated assault and three counts of aggravated battery. Ransom now appeals from the denial of his motion for a new trial, asserting that the trial court erred in failing to grant a mistrial following the inadvertent admission of evidence of Ransom’s bad character and in refusing to instruct the jury on the law of self-defense. We find no error and affirm.

Viewed in the light most favorable to the verdict, Goolsby v. State, 299 Ga. App. 330-331 (682 SE2d 671) (2009), the record shows that Mario Freeman arranged for appellant to purchase approximately two pounds of marijuana from a third party. Ransom, together with his brother Michael, Freeman, and another acquaintance, Robert Hull, went together to the apartment complex where the drug transaction was scheduled to occur. After arriving in the parking lot of the complex, Ransom gave $2,400 in cash to Freeman. He then remained in the parking lot while Freeman and Hull went into the designated apartment, where they were robbed at gunpoint. Freeman returned to Ransom without the drugs or the money and explained what had happened, whereupon Ransom became very angry about the loss of his money.

Ransom and his companions then drove to Ransom’s home, where they found another group of men waiting in the yard. A disagreement arose over who was to blame for the loss of the money. Ransom then went into his house, returned holding a gun, and asked Hull “where’s my . . . money?” When Hull responded that he did not know, several of the men, including Ransom, proceeded to beat Hull until he was unconscious. They then dragged Hull down the street, and dumped his body on the side of the road. When Hull was discovered by emergency personnel, his eyes were swollen shut, his jawbone and orbital bone were broken, he had lost a number of teeth, and his head injuries were so severe that they significantly impacted his cognitive functioning. At trial, Ransom testified in his own defense and stated that he was not present at the time of the beating.

1. The record shows that as part of its case-in-chief, the State sought to admit a recorded version of Ransom’s statement to an investigator at the Jackson County sheriff’s office. Prior to trial, the parties agreed to redact those portions of the statement referencing Ransom’s prior criminal history and the State prepared a proposed redacted version. The State then provided a transcript of the proposed redacted statement to defense counsel, and defense counsel approved its use. The agreed-upon transcript, however, was thereafter misplaced, and a new one was prepared by the prosecutor’s office. The replacement transcript mistakenly included a single reference to Ransom’s time in prison.

At trial, the jurors listened to the audio recording of the statement and were provided with copies of the replacement transcript. At the time the transcript was published to the jury, defense counsel had not been informed that the transcript represented a replacement of the one he had reviewed and approved and he was therefore unaware of any changes to the document. Although the State provided defense counsel with a copy of the transcript at the time it was presented to the jury, defense counsel did not review it, because he believed that he had already seen and approved the document. Defense counsel did not notice the error until the jury deliberations had begun, at which time he moved for a mistrial. Finding that the failure to properly redact the transcript was an accident, the trial court denied the motion for a mistrial, but did provide a curative instruction to the jury, directing them to disregard any evidence that might indicate that “this [djefendant may have been in trouble with the law before.” The trial court then polled each juror individually to determine if he or she would be able to disregard any such inappropriate information.

On appeal, Ransom asserts that the trial court erred in failing to grant a mistrial. We disagree. “We review a trial court’s denial of a motion for a mistrial based on the injection of improper character evidence for manifest abuse of the court’s discretion.” (Citation and punctuation omitted.) Adams v. State, 276 Ga.App. 319, 321 (2) (623 SE2d 525) (2005). “[T]he... court’s discretion... will not be disturbed so long as proper remedial measures are taken to ensure the right to a fair trial.” (Footnote omitted.) Culler v. State, 277 Ga. 717, 719 (3) (594 SE2d 631) (2004). In light of the inadvertent nature of the introduction of the improper evidence, as well as the remedial steps taken by the trial court, we find no abuse of discretion in this case. See Hunter v. State, 281 Ga. 526, 530 (3) (640 SE2d 271) (2007).

In Hunter, our Supreme Court found that curative instructions were an adequate remedy where the defendant’s character was improperly placed into evidence because of the State’s failure to properly redact references to the defendant’s prior jail sentence from a recording of the defendant’s interview with police. Id. Accord Culler, supra (trial court did not abuse discretion in denying defendant’s motion for mistrial based upon State’s witness improperly referencing defendant’s prior jail sentence when trial court found that the witnesses’ improper statement was inadvertent and gave a curative instruction to jurors). Here, although the trial court did not provide a curative instruction immediately after the introduction of the improper evidence, it did so as soon as defense counsel raised its objection to the improperly redacted transcript, and it also polled the jurors as to their ability to disregard that evidence. Under the relevant law, therefore, we must conclude that the trial court did not abuse its discretion in denying the motion for a mistrial. See Kerdpoka v. State, 314 Ga.App. 400, 402-403 (2) (724 SE2d 419) (2012) (no abuse of discretion by trial court in denying motion for a mistrial, finding that improper reference to defendant’s DUI was inadvertent and that trial court provided a prompt curative instruction).

2. Ransom contends that the trial court erred in refusing trial counsel’s request for jury instructions on self-defense. “To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” (Citations and punctuation omitted.) McNeal v. State, 289 Ga. 711, 714 (4) (715 SE2d 95) (2011).

Because self-defense represents an affirmative defense, we agree with the trial court that there was no evidence to support the giving of the requested charge.

With a legal affirmative defense, the accused admits the elements of the crime, but seeks to justify, excuse, or mitigate by showing no criminal intent; all elements of the parts of the crime are admitted with the exception of the intent. All defenses which have been held to be statutory affirmative defenses meet this criteria; i.e., justification, self-defense or defense of others. Each of these affirmative defenses requires that the defendant admit the crime before he can raise such defense.

(Citations and punctuation omitted; emphasis supplied.) Hicks v. State, 287 Ga. 260, 261-262 (2) (695 SE2d 195) (2010). See also Lightning v. State, 297 Ga.App. 54, 59-60 (5) (676 SE2d 780) (2009) (a defendant must admit the act or he is not entitled to a charge on justification). In the present case, Ransom did not admit to any elements of the crime charged. Rather, his sole defense at trial was that he was not present when the assault took place. Specifically, Ransom testified that “I pulled out and we left... what happened[,] I didn’t see any of that.” In light of Ransom’s own testimony, therefore, he has no basis for claiming self-defense, and the trial court properly refused to charge the jury on that affirmative defense.

Decided November 27, 2012.

Donna A. Seagraves, for appellant.

J. Bradley Smith, District Attorney, Samuel E. Skelton, Assistant District Attorney, for appellee.

Furthermore, we find no merit in Ransom’s assertion that the necessary evidence to support a charge on self-defense was provided by testimony from the victim, Hull. At trial, Hull stated that he struck a person who was not Ransom before Ransom struck him multiple times. This argument concerning Hull’s testimony, however, ignores the fact that Ransom never admitted hitting Hull at all, much less that Ransom hit Hull in self-defense or defense of another. Accordingly, the trial court did not err in refusing to instruct the jury on self-defense based on the testimony ofthe victim. Williams v. State, 301 Ga. App. 731, 734 (4) (b) (688 SE2d 650) (2009) (trial court’s failure to charge on self-defense was not in error when defendant provided no evidence that he acted in self-defense). See also Hicks, supra at 262 (2) (trial court correctly refused to give jury instruction on justification when evidence showed that the victim and a third party had been involved in an altercation, but that although defendant shot the victim, there is no evidence that he “entered the fracas in defense of [the third person]”) (emphasis supplied).

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       OCGA § 16-5-21 (a).

       OCGA § 16-5-24 (a).

       Under OCGA § 16-3-21 (a) “[a] person is justified in threatening or using force against another when and to the extent that he . . . reasonably believes that such threat or force is necessary to defend himself... or a third person against such other’s imminent use of unlawful force.. ..”


text:
    A12A1120.
    GORDON v. THE STATE.
    (734 SE2d 777)
   Branch, Judge.

On this out-of-time appeal from his conviction for aggravated battery and other crimes, Bertram Gordon argues that trial counsel was ineffective. We affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation and punctuation omitted.) Reese v. State, 270 Ga.App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that in early 2007, the victim, a cabdriver, frequently drove Gordon’s girlfriend to and from her workplace and her children’s daycare center, and did so at times without pay. Although Gordon and the victim were acquainted, Gordon did not approve of the friendship between the victim and the girlfriend. On April 16,2007, Gordon called the victim and asked him where he was. The victim told Gordon that he was at a Piccadilly restaurant. Gordon borrowed his girlfriend’s new Chevrolet, drove up to the victim’s cab, where he was sitting with the door open, and fired at him three times, hitting him once in the left leg and once in the abdomen. Three spent rounds were found on the ground near the victim’s cab.

An eyewitness saw the shooting, followed the Chevrolet, and called 911. While the eyewitness remained on the line with the 911 operator, police relayed the eyewitness’s description of the car Gordon was driving to officers in the field. After a high-speed car chase ending in a crash at an apartment complex, Gordon fled on foot and was apprehended by police. The victim recognized Gordon at the scene and identified him from a photographic lineup and at trial. Gordon was charged with and found guilty of one count of aggravated assault, two counts of aggravated battery, and one count of possession of a firearm during the commission of a felony. The trial court merged the aggravated assault count into the aggravated battery counts and sentenced Gordon to 25 years to serve. His motion for new trial was denied.

1. The evidence outlined above was sufficient to sustain Gordon’s conviction. See OCGA §§ 16-5-24 (a) (defining aggravated battery as “seriously disfiguring” a person’s “body or a member thereof”), 16-11-106 (b) (defining possession of a firearm during the commission of a crime); Jackson, supra.

2. Gordon argues that trial counsel was ineffective when he (a) failed to move for a mistrial concerning evidence that police sometimes responded to the couple’s apartment when they were arguing, (b) failed to object to a police officer’s testimony concerning a dispatch description of Gordon as hearsay, and (c) described his job as “hard” because he had to “convince” the jury that reasonable doubt existed as to Gordon’s guilt. We disagree with these contentions.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Suggs v. State, 272 Ga. 85, 87-88 (4) (526 SE2d 347) (2000), citing Strickland v. Washington, 466 U.S. 668 (104 SC 2052, 80 LE2d 674) (1984).

A court considering a claim of ineffective assistance must apply a strong presumption that counsel’s representation was within the wide range of reasonable professional assistance. With respect to prejudice, a challenger must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

(Citation and punctuation omitted.) Brown v. State, 288 Ga. 902, 907 (5) (708 SE2d 294) (2011). The question of ineffectiveness is a mixed one of both law and fact: “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Footnote omitted.) Suggs, 272 Ga. at 88 (4).

(a) The record shows that during its cross-examination of Gordon, the State asked whether he and his girlfriend had experienced “conflict over the years.” When Gordon confirmed that they had, the State asked whether police were sometimes called to their arguments. When Gordon responded affirmatively, the State asked whether he would sometimes “flee from the apartment when those arguments happen.” At this point, trial counsel asked for and obtained a bench conference, at which he objected to the line of questioning as introducing bad character evidence. The trial court instructed the parties to “move on.” Cross-examination resumed without any further reference to police responses to the couple’s arguments.

The State’s line of questioning produced an unconfirmed, brief suggestion that Gordon sometimes fled police — the same action to which he admitted on the stand when he confirmed that he sped away from police in the immediate aftermath of the shooting at issue. Counsel objected to the line of questioning about disputes with his girlfriend, with the result that the State abandoned it. “The comment was fleeting and incomplete, and the witness was immediately redirected before his testimony continued.” (Citation omitted.) Hensley v. State, 300 Ga.App. 136, 138 (684 SE2d 673) (2009). “Amistrial is not required where, as here, the trial court takes prompt action that effectively remedies the inadvertent introduction of ‘bad character’ evidence at trial.” Boatright v. State, 308 Ga.App. 266, 268 (1) (a) (707 SE2d 158) (2011), citing Tarver v. State, 280 Ga. App. 89, 91-92 (2) (633 SE2d 415) (2006). Because Gordon cannot show any reasonable probability that, but for counsel’s failure to move for mistrial, the result of the proceeding would have been different, the trial court’s conclusion that Gordon did not receive ineffective assistance on this point was not clearly erroneous. Id. at 268-269 (1) (a) (counsel was not ineffective in failing to move for a mistrial when he had already objected to witness’s “fleeting” response introducing bad character evidence and when the trial court sustained the objection).

(b) The record shows that the police officer who apprehended Gordon received a description of Gordon and the car he was driving from either the 911 operator, who kept the eyewitness on the line as police responded to the scene, or dispatch in touch with that operator. The officer testified that dispatch had informed him that Gordon was wearing “dreadlocks and a hat,” a description similar but not identical to that given by the victim at trial.

Although the trial court held that trial counsel made a reasonable strategic decision not to object to the police officer’s testimony about the physical description of the perpetrator, counsel could not recall at the hearing on Gordon’s motion for new trial why he did not object. Statements are “nontestimonial” when made for the “primary purpose” of assisting police to meet an “ongoing emergency.” Thomas v. State, 284 Ga. 540, 543 (2) (668 SE2d 711) (2008), citing Davis v. Washington, 547 U. S. 813, 828 (III) (A) (126 SC 2266, 165 LE2d 224) (2006). The description provided to the officer by the eyewitness while police were in pursuit meets the “ongoing emergency” test and was therefore “nontestimonial.” Id.

“Once a determination is made that a statement is nontestimonial in nature, normal rules regarding the admission of hearsay apply.” (Citation and punctuation omitted.) Thomas, supra at 543-544 (2). The res gestae exception to the hearsay rule provides that “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” OCGA § 24-3-3. “Whether the res gestae exception should apply depends on factors including (i) the timing of the statement. . . (ii) whether the declarant was able to deliberate about the statement . . . and (iii) whether the declarant was influenced by others prior to making the statement.” Thomas, supra at 544 (2).

This record shows that the police officer received the dispatch description of Gordon only moments after and as an immediate consequence of the eyewitness’s call to 911. Under these circumstances, the officer’s account of the description of Gordon was admissible under the res gestae exception to the hearsay rule. Thomas, supra at 544 (2); see also Gilbert v. State, 241 Ga.App. 57, 60 (3) (526 SE2d 88) (1999) (trial court did not clearly err in admitting eyewitness’s description of robbers’ car made 30 minutes after robbery when the description was “relevant” and made “without premeditation”). Because a hearsay objection to the officer’s description would have been meritless, counsel could not have been ineffective for failing to object on that basis. Sims v. State, 281 Ga. 541, 543-544(2) (640 SE2d 260) (2007) (failure to raise a meritless objection cannot constitute ineffective assistance of counsel).

Decided November 27, 2012.

Lynn M. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

(c) As to whether defense counsel’s closing argument concerning the difficulty that he had as to persuading the jury that reasonable doubt existed as to Gordon’s guilt improperly shifted the burden of proof on that issue, the record shows that both counsel and the trial court emphasized that it was the trial court’s responsibility to explain the law. The record also shows that the trial court correctly charged the jury that the State was required to prove “each element of the crimes that are charged . .. beyond a reasonable doubt”; that “there is no burden upon [Gordon] whatsoever”; and that “reasonable doubt” could arise from conditions including “a lack of evidence,” “a conflict in the evidence,” or “any combination of those factors.”

Taking the evidence and the trial court’s charge concerning it together, Gordon cannot demonstrate a “reasonable probability” that, but for counsel’s closing argument, “the result of the proceeding would have been different.” (Punctuation omitted.) Brown, supra at 907 (5). It follows that the trial court did not clearly err when it concluded that counsel’s closing argument did not amount to ineffective assistance. See Ferrill v. State, 278 Ga.App. 132, 134 (2) (628 SE2d 217) (2006) (even when trial court used disapproved language in its charge on reasonable doubt, and in light of the entire charge, there was “no reasonable likelihood” that the jury applied an improper standard of proof); Brown, supra at 911 (5) (defendant did not show that counsel’s performance in closing argument amounted to ineffective assistance).

Judgment affirmed.

Miller, P. J., and Ray, J., concur.


author: Boggs, Judge.

text:
    A12A1341.
    In the Interest of J. C. W. et al., children.
    (734 SE2d 781)
   Boggs, Judge.

In the third appearance of these parties before this court, three-year-old twins, J. C. W. and J. C. W., appeal from a juvenile court order awarding long-term custody until their 18th birthday to their maternal aunt and uncle. The children assert that this court should reverse the juvenile court because (1) it lacked jurisdiction; (2) it wrongly concluded that the Juvenile Code establishes a preference for relative placement; (3) it failed to find that termination of parental rights and adoption by the foster parents was in the twins’ best interest; (4) it failed to conduct a de novo rehearing; (5) it erred by finding the existence of a conditional stipulation to nonreunification and placement; (6) it abused its discretion by ruling the foster mother’s testimony inadmissible; and (7) it erroneously entered its order nunc pro tunc. For the reasons explained below, we vacate the juvenile court’s order with direction.

Juvenile Court Proceedings

The record shows the twins were born on February 10, 2009, and their older brother Ja. C. W. was born on October 12, 2007. On March 21,2009, the juvenile court entered an order authorizing shelter care for the three children based upon the risk of “inappropriate or no supervision.” The following day, all three children were placed in the care of one foster family working with a private agency, Giving Children a Chance of Georgia (“GCAC”). At the time of the placement, the foster parents did not intend to adopt any children.

Less than a month later, the foster parents determined that caring for three young children was “too much” for them to handle. The twins required constant care and the older 17-month-old sibling “had some disciplinary issues.” The foster mother testified that after a meeting with the Department of Family and Children Services (“DFACS”), she believed all three children would be moved to another foster family. A few days later, however, she learned that DFACS had decided to leave the twins in her care and place the older sibling with another foster family. On April 13, 2009, the older sibling was placed in a different foster home based upon a determination by DFACS that “he needed individual attention to address his behaviors and perceived developmental delays.”

On July 9, 2009, the juvenile court entered an order finding all three children deprived based upon the following: the mother’s lack of adequate housing and income; the mother’s mental health issues for which therapy and treatment had been recommended in April 2009; the female twin’s failure to thrive in the mother’s care; a report that the female twin fell from the mother’s lap resulting in visible physical injuries; and the mother’s history with DFACS in another county with regard to the oldest child. The juvenile court also scheduled a permanency hearing to take place six months later on February 1, 2010. Throughout the remainder of 2009 and early 2010, the mother worked on her case plan and the permanency plan contemplated reunification with the mother. During this time, the mother did not provide DFACS with complete information about relatives who might be available for placement of the children.

The record shows that in February 2010, the mother provided DFACS with the names of eight brothers for the first time. DFACS also changed the case plan to concurrent goals of reunification or placement with fit and willing relatives. Based upon an objection by the children’s attorney, the juvenile court denied DFACS’ request to change the permanency plan to include placement with a fit and willing relative in favor of “a concurrent plan of reunification and adoption.”

Although the foster parents expressed an interest in adopting the twins by March 2010, they also suggested to DFACS three months later that friends who lived close to them might also want to adopt the twins. The friends, like the foster parents, did not wish to adopt the twins’ older sibling.

On August 10, 2010, DFACS filed a petition in juvenile court to terminate parental rights as to all three children. On August 13, 2010, a meeting was held between the two sets of foster parents for all three children, a DFACS representative, and the mother’s brother and his wife to discuss transitional visits with the aunt and uncle. Based upon information included in a court report prepared for a permanency review hearing held on September 23, 2010, friction developed between both sets of foster parents and the aunt and uncle with regard to visitation. In mid-October, all three children began visiting with their aunt and uncle, beginning with two-hour visits, progressing into an all-day visit, an overnight visit, and two or three weekend visits in a row.

On November 5, 2010, DFACS changed the placement of the twins’ older brother from foster care to the aunt and uncle because their home had been approved for placement and transitional visits were going well.

On November 15, 2010, the twins’ foster parents moved to intervene in the pending juvenile court action and also requested that they be awarded custody following any termination of parental rights.

The next day, on November 16, 2010, DFACS filed a motion for non-reunification asserting that “further efforts to reunite the children with their parents would be detrimental in that there exists parental misconduct and inability relative to the [three] children within the meaning of OCGA § 15-11-94 (b) (4).” With regard to the mother, the motion alleged that she had failed to achieve the goals in her case plan because she was without suitable housing, had not completed parenting classes, and did not have adequate financial resources to care for the children. The motion also stated that “[termination of parental rights is not in the best interest of the children inasmuch as the permanency plan is placement with a fit and willing relative, to wit: [the] maternal uncle and aunt.” DFACS also filed contemporaneously a motion to modify custody of the three children to the aunt and uncle.

The petition for termination of parental rights, the motion for non-reunification, and the motion to modify custody were all scheduled for a hearing on the same day, November 18, 2010. At the beginning of the hearing, the mother’s attorney waived notice and service of the motions for non-reunification and to modify custody. She also stated that the mother had “no objection to the motion for non-reunification” and would stipulate to the modification of custody to her brother and his wife. The trial court granted the motion for non-reunification and initially granted the motion to modify custody. When the children’s counsel objected, the juvenile judge agreed to hear evidence before ruling on the motion to modify custody.

The children’s attorney called two witnesses: the foster mother and the mother’s brother. The foster mother testified that she was interested in adopting the twins, but was not interested in having their older brother back in her home. She explained that her desire to adopt the twins developed over time as she and her husband became “more attached to them and felt that it was the right thing to do.” She believed that the children had been abandoned by their family because the mother’s visitations were sparse and “[t]here was no other family visitation at all. We thought there was going to be some family come through around April-May, and then we didn’t hear anything else again until August.” Based on their perception that no family was coming forward, they determined that “if we were going to keep going, we might as well adopt.”

The foster mother admitted that she had been recently supportive of her friends adopting the twins. She also acknowledged that she told a DFACS caseworker in October 2010 that she “did not like the relatives, that she did not want the [female twin] to be molested, put out on the street and get pregnant.”

The foster mother testified that the twins call her and her husband “momma” and “dadda.” She explained that when the twins “get home from a visit or anything, they just •— they’re so happy to see and call us momma and pat us on the face, and a lot of times they’ll just say, Are we home, and just — you know, it’s just — you can feel the attachment and love they have for us.” She also testified that the twins

are as nutty about [her three children, ages 21, 18, and 16] as they are us . . . [the male twin] talks about his Bobby all the time, which is my son, . .. and my daughter Bagney, as they call her, they Skype on the computer every night, and sing songs and play games, and play peekaboo, and whatever you can do on Skype every evening.

She acknowledged that “some bond” existed between the twins and their older brother, but she did not believe “it’s any more of a bond than they have with any kid at the day care center.”

The mother’s brother who sought custody testified that he and his wife have been married for 26 years and raised four children. Three of them were in college, including one at the United States Air Force Academy, while his oldest one is married. The uncle works as a high school custodian, and his wife works as head secretary at an elementary school.

The uncle testified that he was notified that the children were in DFACS custody in April 2010. Although he testified that he was “very close” with the mother and knew “what was going on,” he also explained that “no one really disclosed her personal business.” He explained that he and his wife “were always there for [the mother] when she needed [them],” but explained that he was “not going to really go around trying to play hero to her family unless she asked me to.” When he and his wife were asked to “step in,” they “took it to God, and... chose to do it.” This occurred during a family meeting in April 2010 in which it was determined that he and his wife were best suited to take in the children. The home evaluation conducted by DFACS was completed in October 2010; the uncle did not know why it took six months to complete.

While he knew the twins’ age, he did not know their middle names or birthday, but explained that his love “can overshadow a lot.” He stated that his wife knew the twins’ birth dates and that he would study this information and ensure that no “hurt, harm or danger” came to them. He was “ready, willing, and able to provide a home” for the twins, was willing to raise all three children, and had already obtained custody of the older brother. In his opinion, the twins were bonded with their older brother. Finally, he testified that he understood that if he and his wife were given custody of the twins, they would be responsible for raising them and “could not give the children to [the mother] simply because [he] thought [she] got her act together.”

At the conclusion of the hearing, DFACS asked the court to grant its motion to modify custody to the aunt and uncle because they stepped forward after the mother identified them, and could provide a good home and raise all three children together. The children’s attorney asserted that the older sibling should remain with the aunt and uncle, but the twins should remain with the foster parents. He reasoned that the children had already “been split up for twenty months” and that it was too late to “forge a connection that isn’t there anymore.”

After hearing testimony from the foster mother and the maternal uncle on issues of custody only, the juvenile judge ruled from the bench and denied DFACS’ motion to modify custody of the twins to the aunt and uncle and granted custody of the twins to the foster parents over the objection of the mother and DFACS. [] It entered a written order to this effect on January 19, 2011 at 3:01 p.m., which also relieved DFACS of custody over the twins. The associate judge hearing the motions on custody and nonreunification at no time issued a ruling on DFACS’ pending petition to terminate the parental rights, and evidence was not submitted on this issue.
In a written order entered the same day at 3:02 p.m., the judge found that “[t]he mother, through counsel, consented to the Motion [for nonreunification]. Based on the consent of mother through counsel, the [c]ourt finds that [the mother] of the ... children, has failed to achieve the goals in the case plan designed to enable her to be reunited with her children.” After a recitation of facts concerning the mother’s fitness and conduct stated in the motion, for which no evidence was introduced in the hearing, the juvenile judge concluded that parental misconduct existed within the meaning of OCGA § 15-11-94 (b) (4) (A) (i)-(iv). It then concluded, that “non-reunification of these children with their parents is in their best interest. Therefore, reunification efforts by the Department shall cease, in accordance with OCGA § 15-11-58 (h). Custody of the children remains with [DFACS].” (Emphasis supplied.) []
On January 13, 2011, the mother moved for rehearing under OCGA § 15-11-21 (e). The chief juvenile court judge granted the motion for rehearing on February 1, 2011. [] On February 28,2011, the chief juvenile judge issued an 11-page order in which she conducted a de novo review under Uniform Juvenile Court Rule 19.2. . . . Based on [its] findings, the chief juvenile judge vacated the associate juvenile judge’s January 19,2011 order and awarded custody to the aunt and uncle under OCGA § 15-11-58 (i) until the twins’ eighteenth birthdays.

In the Interest of J. C. W. II, supra, 315 Ga.App. at 569-570.

In In the Interest of J. C. W. I, supra, 311 Ga. App. at 895, we vacated the chief juvenile judge’s February 28,2011 order based upon her failure to make a finding that “referral for termination of parental rights and adoption was not in the twins’ best interest.” Id. See OCGA § 15-11-58 (i). After the case was remanded, the chief juvenile judge issued an order on October 21, 2011 that is the subject of the current appeal. In its order, the rehearing court: vacated the order granting custody to the foster parents; granted the motion for non-reunification; found that the permanency plan was “placement with a fit and willing relative”; found that termination of parental rights and adoption was not in the best interest of the children pursuant to OCGA § 15-11-58 (i) (1); granted the motion to modify custody to the aunt and uncle; and denied the foster parents’ motion to intervene and to be recognized as parties.

Superior Court Proceedings

On December 15, 2010, following the oral grant of their request for custody [on November 18, 2010], the foster parents filed a petition for adoption in Fulton County Superior Court that also sought termination of the mother’s parental rights. [] This petition was not served on DFACS or the aunt and uncle, and the foster parents did not obtain consent for the adoption from DFACS before filing it. See OCGA §§ 19-8-3 (b) and 19-8-13 (a) (2); Owen v. Watts, 303 Ga.App. 867, 869 (2) (695 SE2d 62) (2010).
On March 9, 2011, the foster parents sought termination of parental rights through a summary judgment motion relying upon certified copies of petitions and orders filed in the juvenile court. [] The superior court held a hearing on March 11,2011, and issued orders the same day terminating parental rights and granting the foster parents’ petition for adoption of the twins. The order terminating parental rights was based upon the facts contained in the certified juvenile court records, not evidence submitted during the hearing. The juvenile court records reviewed by the superior court did not include any DFACS internal records, such as case plans or reports of any psychiatric assessments of the mother.

J. C. W. II, supra, 315 Ga.App. at 571.

The mother appealed to this court, and this court concluded that “the superior court erred by exercising jurisdiction over the issue of termination” because a termination petition was first filed in juvenile court. J. C. W. II, supra, 315 Ga.App. at 572 (1). We therefore vacated the superior court’s judgment.

1. We first address the mother’s contention that the twins lack standing to appeal in the absence of an appointed guardian ad litem. In In the Interest of W.L.H., 314 Ga.App. 185 (723 SE2d 478) (2012), cert, granted (Case No. S12G1049, May 29,2012), we held that a child could not file an appeal from a deprivation order through a court-appointed attorney acting as the child’s counsel. Id. at 186-187. We reasoned that a child cannot “appeal without the aid of a guardian or next friend.” Id. at 187. The facts presented in W. L. H., however, differ from those presented here. In W. L. H., the child had both a guardian ad litem and an attorney, and the guardian ad litem filed a brief opposing the child’s appeal brought by his attorney. Id. at 186.

In this case, it is undisputed that the children do not have a court-appointed guardian and that they were represented below by the Fulton County Office of Child Attorney, which filed this appeal on their behalf. Our holding in W. L. H. is therefore factually distinguishable because there is no conflict between a guardian ad litem and an attorney regarding whether an appeal should be pursued on the children’s behalf. Additionally, while we noted in W.L.H., supra, that we could “find no authority for an unemancipated minor in a deprivation action, even if represented by counsel, to appeal without the aid of a guardian or next friend,” we did not so hold. Id. at 187.

Now that the issue is squarely before us, we are reluctant to conclude that the children in this case lack standing to appeal through their attorney. It cannot be questioned that the children are real parties in interest whose lives will be directly affected by the juvenile court’s decision regarding custody until their 18th birthday under OCGA § 15-11-58 (i) (1). Cf. Kesterson v. Jarrett, 291 Ga. 380, 392 (2) (f) (728 SE2d 557) (2012) (noting that while children may not be sui juris as a matter of law, they are still real parties in interest with a right to be present in a civil action). While the children do not have a guardian available to contest the juvenile court’s ruling on their behalf, they do have an attorney who has advocated on their behalf in juvenile court and now seeks to do the same on appeal. Dismissing the children’s appeal under these particular facts and circumstances would be a miscarriage of justice. We therefore deny the mother’s request to dismiss this case based upon the children’s lack of standing, and we find that the children’s attorney may bring this appeal on their behalf as there is no other representative available to do so. We emphasize that this holding is limited to the particular facts and circumstances of this case.

2. In related enumerations of error, the children contend that the rehearing court lacked jurisdiction to issue its October 21, 2011 rehearing order because DFACS filed a motion to dismiss its termination petition as moot on February 22, 2011, a different juvenile judge granted DFACS’ motion to dismiss its petition to terminate as moot on March 4, 2011, and the superior court terminated parental rights and granted an adoption on March 11, 2011. According to the children, DFACS’ motion to dismiss the termination petition as moot should be equated with a voluntary dismissal without prejudice of a complaint filed under the Civil Practice Act, OCGA § 9-11-41 (a); this dismissal therefore divested the juvenile court of jurisdiction of the termination of parental rights; and the December 15, 2010 termination petition filed in superior court in connection with the foster parents’ adoption petition was the only termination action pending at the time the superior court ruled on March 11, 2011.

We disagree. First, DFACS’ motion to dismiss as moot should not be equated with a voluntary dismissal by a plaintiff under OCGA § 9-11-41 (a). As pointed out by the children in a supplemental brief, the Civil Practice Act does not apply in juvenile court. See Coleman v. Coleman, 238 Ga. 183 (232 SE2d 57) (1977); In the Interest of T. M. M. L., 313 Ga.App. 638, 639 (722 SE2d 386) (2012). Second, we have already determined in J. C. W. II, supra, that the superior court lacked jurisdiction to terminate parental rights because a petition to terminate parental rights was first filed in juvenile court. 315 Ga. App. at 571-572 (2). And, the March 4, 2011 order dismissing the termination petition as moot did not deprive the juvenile court of jurisdiction to enter an order under OCGA § 15-11-58 (i) (1) on either February 28, 2011 or October 21, 2011. Because the termination petition was first filed in juvenile court and the juvenile court determined that a referral for termination of parental rights and adoption was not in the best interest of the children, the superior court could not exercise its concurrent jurisdiction to terminate parental rights. The option of termination of parental rights was properly before the juvenile court first; its decision against pursuing this option in favor of nonreunification and an award of custody to the aunt and uncle under OCGA § 15-11-58 (i) (1) cannot later be second-guessed by a different judge in superior court in a later-filed action seeking termination of parental rights and adoption.

3. The children assert the juvenile court’s order must be vacated because the rehearing court erroneously held that the Juvenile Code establishes a preference for relative placement. We agree.

In its order granting custody to the aunt and uncle, the rehearing court wrote:

This Court especially cannot overlook these available and qualified relatives pursuant to OCGA § 15-11-58 (i) (1) after finding that termination of parental rights and adoption is not in the best interests of the children because these relatives are interested in obtaining custody and explicitly must be looked to first pursuant to statutory construction.
It is this Court’s belief that the order in which [OCGA § 15-11-58 (i) (1)] is written dictates a clear preference to first look to relatives for placement before a non-relative individual, which is why the Department is required to perform and submit a diligent search for relatives at the disposition of a deprivation hearing pursuant to OCGA § 15-11-55 (a) (2) (B).

Based upon our review of the relevant portions of the Juvenile Code, we do not find a statutory preference in favor of relatives in OCGA § 15-11-58 (i) (1). This Code section provides:

If the court has entered an order finding that reasonable efforts to reunify a child with his or her family would be detrimental to the child... and if the court finds that referral for termination of parental rights and adoption is not in the best interest of the child, the court may, upon proper petition, enter a custody order which shall remain in effect until the child’s eighteenth birthday:
(A) Placing the child in the custody of a relative of the child if such a person is willing and, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child;
(B) Placing the child in the custody of any nonrelative individual who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child;
(C) Placing the child in the custody of a suitable individual custodian in another state pursuant to the provisions of Code Section 15-11-89; or
(D) In the case where the court has found a compelling reason that a placement pursuant to subparagraph (A), (B), or (C) of this paragraph is not in the child’s best interest, placing the child in the custody of an agency or organization licensed or otherwise authorized by law to receive and provide care for the child which is operated in a manner that provides such care, guidance, and control as would be provided in a family home as defined in the court’s order.
Such order may be modified following a petition for modification by a party or upon motion of the court pursuant to Code Section 15-11-40.

(Emphasis supplied.) While this statute lists the custody options available to a juvenile judge under OCGA § 15-11-58 (i) (1) in a certain order, this list should not be construed as one expressing a legislative intent for priority of placement. “The natural meaning of ‘or,’where used as a connective, is ‘to mark an alternative and present choice, implying an election to do one of two things.’ ” (Citation and punctuation omitted.) Gearinger v. Lee, 266 Ga. 167, 169 (2) (465 SE2d 440) (1996). And, where the Legislature has intended a preference for relative placement, it has previously made its intention clear. Before July 1, 2010, former OCGA § 15-11-103 (a) required the juvenile court to “first attempt to place the child with a person related to the child by blood or marriage” following a termination of parental rights. (Emphasis supplied.) Indeed, in OCGA § 15-11-58 (i) (1) itself, the Legislature expressly mandated a form of placement priority in subsection (i) (1) (D) by permitting a juvenile court to use the placement outlined in this subsection only as a last resort if the other three alternative placements would not be in the child’s best interest.

Because OCGA § 15-11-58 (i) (1) contains no preference in favor of relative placement, the juvenile court erred by finding otherwise. Because we cannot determine whether this erroneous legal conclusion affected the rehearing court’s exercise of its discretion with regard to whether a referral for termination and adoption was in the best interest of the children, as well as its decision to award custody to the aunt and uncle, we must vacate its order granting custody.

4. The children contend that the rehearing court also erred by failing to conduct a de novo review of the evidence presented to the associate juvenile judge. We disagree. While the rehearing court made some rulings that were “appellate” in nature, it is clear from a review of the entire order that the rehearing court conducted a de novo review of the issues before the associate juvenile judge and made its own findings. See OCGA § 15-11-21 (e); Uniform Juvenile Court Rule 19.2. Our opinion in In the Interest of M. E. T., 197 Ga.App. 255, 256-257 (1) (398 SE2d 30) (1990), does not require a different result because in that case, the rehearing court did not conduct a de novo review resulting in its own findings, but instead issued an order denying the “appeal” and confirming the findings of the associate judge.

Although we do not find any merit in this enumeration of error, based upon our decision to vacate the order on other grounds, we take this opportunity to instruct the rehearing court, out of an abundance of caution, to remove any findings in the nature of appellate rulings from its order.

5. The children argue that the rehearing court “erroneously found the existence of a conditional stipulation agreement as to nonreunification and placement.” In support of their argument, the children point to the following portions of the October 21,2011 order:

The mother stipulated to both the Motion for Non-Reunification and the Petition to Modify Custody as there was an agreement between the mother and the Department of Family and Children Services that the stipulation would allow her children to be placed with her brother and sister-in-law. . . .
By failing to adopt the permanency plan of the motion for nonreunification, the court failed to give the proper consideration to the agreement reached between the mother and the Department wherein the permanency plan was changed to placement with a fit and willing relative. The court further ignored the principle of detrimental reliance in that the mother agreed to the motion for non-reunification and waived service so the hearing would proceed with the express understanding that all of her children would be placed with her relatives under the petition to modify custody. ... Under this arrangement, the mother would not have been precluded from returning to court to seek custody of her children at some point in the future. When the court placed the twins with the foster parents, the mother did not get the benefit of her bargain and now risks losing the children forever as the foster parents wish to adopt.

The children argue that this language shows that the rehearing court erred by finding that a conditional “agreement existed and that the... [m]other deserved the benefit of this unexpressed and nonexistent bargain.”

A review of the remainder of the order, however, fails to demonstrate that the rehearing court relied upon this alleged bargain when deciding to award custody of the twins to the aunt and uncle. Nor does it show that the rehearing court acted under an assumption that it was obligated to accept the custody arrangement proposed by DFACS and the mother. Instead, the rehearing court reviewed the facts before it de novo and made its own independent analysis of the best interest of the children with regard to custody. While we find no error, we note that the language relied upon by the children appears to be “appellate” in nature and should be removed following remand in accord with Division 4 of this opinion.

6. The children assert that the rehearing court lacked jurisdiction to conclude in its October 24, 2011 order that termination of parental rights and adoption was not in the best interest of the children. Instead, according to the children, the juvenile court should have limited its findings to whether “referral for termination and adoption was in the twins’ best interests” under OCGA § 15-11-58 (i) (1). To the extent the children contend the juvenile court lacked subject matter jurisdiction to consider the issue of termination, we disagree. See OCGA § 15-11-28 (a) (2) (C) (juvenile court jurisdiction over termination of parental rights). With regard to the children’s argument that the rehearing court erred by considering the issue of whether termination of parental rights was in the best interest of the children, we conclude from an examination of the rehearing court’s order as a whole that it was analyzing the “referral for” issue following this court’s remand in J. C. W. I, supra, and simply failed to include the words “referral for” in each instance that it discussed this issue. Because we have already determined that a remand is warranted, however, we again instruct the rehearing court, out of an abundance of caution, to clarify that in each instance it discusses whether termination and adoption is in the best interest of the children, it is doing so in the context of whether a “referral” under OCGA § 15-11-58 (i) (1) would be in the best interest of the children.

7. The children assert that the rehearing court erred by ruling the foster mother’s testimony inadmissible. We disagree. After carefully reviewing the October 21, 2011 order, we do not find such a ruling. Instead, the rehearing court concluded:

The [associate judge] was further in error when it proceeded to hear evidence regarding the foster parents on the Petition to Modify Custody. The only Petition to Modify Custody at the time of the hearing that was properly before the court was the one filed by the Department on November 16, 2010 placing the children with the uncle and aunt. The Child Attorney failed to file a Petition to Modify Custody with the court asking for custody to be modified to the foster parents as required pursuant to a finding that termination of parental rights and adoption was not in the best interests of the children under .'. . OCGA § 15-11-58 (i) (1). . . . Since the Child Attorney failed to file a Petition to Modify with the court, the court was in error to allow the Child Attorney to proceed with an argument.... As such, neither the Department nor the mother had notice of any Petition to Modify Custody to the foster parents which should have been provided pursuant to OCGA § 15-11-55.1. . . . Further, at the time the court granted the Motion for Non-Reunification, it adopted the permanency plan which was placement of all of the children with the maternal uncle and aunt. Therefore, the Petition to Modify Custody that followed should have been in respect to modify custody only to the maternal uncle and aunt in adhering to the permanency plan and statutory requirement that a petition to modify custody be filed before the court.

Based on the above, it is clear that the rehearing court merely concluded that a proper petition to modify custody to the foster parents was not before it; in essence, it concluded that the issue before it was whether it was in the best interest of the children for custody to be awarded to the aunt and uncle, and that the available options did not include the grant of an untimely motion to modify custody to the foster parents. The children have not asserted that this ruling was error. The only error that they do assert — that the rehearing court ruled that the foster mother’s testimony was inadmissible — is not supported by the record.

8. In their remaining enumeration of error, the children contend that the rehearing court erred by entering its October 21, 2011 order nunc pro tunc to February 28, 2011, the date of its first rehearing order.

The purpose of entering an order nunc pro tunc is to record some previously unrecorded action actually taken or judgment actually rendered. It may not be used to supply an order not yet made by the court. A nunc pro tunc entry is an entry made now of something actually previously done to have effect of former date; not to supply omitted action, but to supply omission in the record of action really had but omitted through inadvertence or mistake.

(Citations and punctuation omitted; emphasis in original.) In the Interest of D. C. H., 300 Ga.App. 827, 828 (1) (686 SE2d 434) (2009). “The general rule is that nunc pro tunc entries are proper to correct clerical errors but not judicial errors.” (Citation and footnote omitted.) In the Interest of H. L. W., 244 Ga.App. 498, 499 (535 SE2d 834) (2000).

In this case, the October 21, 2011 order did more than correct a clerical error; instead, it supplied legal reasoning and analysis absent from the first order. Id. The rehearing court therefore erred by including a nunc pro tunc entry; the effective date of the order is therefore October 21, 2011, not February 28, 2011.

9. In conclusion, we vacate the rehearing court’s October 21,2011 order based upon an erroneous legal conclusion that OCGA § 15-11-58 (i) (1) includes a preference for relative placement and remand for proceedings not inconsistent with this opinion. We encourage the chief juvenile judge to act expeditiously following receipt of the remittitur and order the clerk of the juvenile court to transmit the record to this court no more than 30 days following entry of any notice of appeal.

Decided November 27, 2012.

Brian M. Condon, Jodie A. Wasson, Willie J. Lovett, Jr., for appellants.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Penny Hannah, Assistant Attorneys General, Robert E. Hall, JanineM. Carson, Alioce E. Steinmetz, for appellee.

Aimee E. Stowe, Stephen M. Reba, James B. Outman, amici curiae.

Judgment vacated and case remanded with direction.

Doyle, P. J., and Andrews, J., concur.

       See In the Interest of J. C. W., 311 Ga.App. 894 (717 SE2d 512) (2011) (J. C. W. I); In the Interest of J. C. W., 315 Ga.App. 566 (727 SE2d 127) (2012) (J. C. W. II), cert. denied, May 11, 2012.

       Although this case has already appeared before this court on two previous occasions, the issues now before us require us to include additional facts. Where possible, we will quote from our previous opinions.

       The report notes that the uncle “felt the foster parents were disrespectful to him,” “[therefore ... [he] and his wife did not want to travel [to] the foster parents’ home, nor have the foster parents in their home.” The foster parents, on the other hand, were frustrated that the aunt and uncle did not make the first scheduled visit, and therefore did not make the children available for the second scheduled visit based upon their belief that the second visit “was contingent upon a successful [first] visit.”

       DFACS’ counsel did not dismiss its pending petition to terminate parental rights during the hearing, stating, “We’ll make that determination once the [c]ourt has ruled on the motion for non-reunification and the petition to modify.”

       In her psychiatric evaluation, the mother reported that she had been molested beginning at age seven by a brother who was three years older. (The uncle who is willing to raise the twins is 23 years older than the mother and is not the brother who allegedly molested the twins’ mother.) The mother also reported that as a teen she skipped a lot of school and “hung around with a negative crowd.” She went through periods of running away and also being asked to leave her home. She gave birth to her first child, Ja. C. W., at the age of 18 and claimed she was “kicked out of her mother’s home” when her pregnancy with Ja. C. W. was discovered. The foster mother admitted that she saw “some of the records in this case,” although she also acknowledged that DFACS generally provided her with only limited information.

       “The juvenile judge ordered that the twins’ older brother be placed with the aunt and uncle.” J. C. W. II, 315 Ga. App. at 569, n. 4.

       “This finding regarding DFACS’ custody contradicts the order entered one minute before that granted custody to the foster parents. The previous order stated that DFACS ‘is relieved of any further custodial responsibilities towards the children.’ ” J. C. W. II, at 570, n. 5.

       On February 22, 2011, DFACS moved to dismiss as moot its pending petition for termination of parental rights based upon the juvenile court’s November 18, 2010 order transferring custody of the twins from DFACS to the foster parents. On March 4, 2011, the juvenile judge to whom the case had been assigned, not the chief judge before whom the rehearing motion was pending, granted DFACS’ motion to dismiss the petition for termination of parental rights and ordered that it ‘be dismissed as moot.” We note that at the time of our decision in J. C. W II, supra, the record before us did not include a copy of this order.

       “It appears this case was not assigned to a Family Division judge as required by Fulton County Superior Court Family Division Case Management Rules 100-2, 100-3, and 400-1.” J. C. W. II, supra, 315 Ga. App. at 571, n. 7.

       “The certified copies of the juvenile court records were provided to the foster parents’ counsel by the child advocate attorney who represented the children in juvenile court.” J. C. W. II, supra, 315 Ga. App. at 571, n. 8.

       While we recognize that the Civil Practice Act does not apply in Juvenile Court, see Division 2, infra, we note that OCGA § 9-11-17 (c) allows a court to “appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.”

       We note that this motion was granted only after the rehearing court entered its order on February 28, 2011 awarding custody of the twins to the aunt and uncle.

       The Supreme Court of Georgia’s recent opinion in Ertter v. Dunbar, 292 Ga. 103 (734 SE2d 403) (2012) does not alter this result. In that case, the superior court was the only court with jurisdiction to award permanent custody. The Supreme Court therefore concluded that the principle of priority jurisdiction between two courts with concurrent jurisdiction did not apply. Id. at 105.

       In support of this enumeration, the children rely upon the three cases already distinguished by this court in J. C. W. II, supra, 315 Ga.App. at 572, n. 9. And the fourth decision cited by the children, Long v. Long, 303 Ga.App. 215 (692 SE2d 811) (2010), supports our decision in J. C. W. II and this case. In Long, we concluded that a superior court could not exercise its concurrent jurisdiction to interfere with a juvenile court’s decision to award temporary custody to a mother in a deprivation case. Id. at 217-220 (2).

       This holding addresses the error claimed by the children in enumerations 7 and 8.

       We note that at no time have the foster parents attempted to appeal from the rehearing court’s conclusion that they were not entitled to intervene in the juvenile court action or that a motion to modify custody to them was untimely.