author: Dillard, Judge. McFADDEN, Judge,

text:
    A15A1856.
    THE STATE v. HARLACHER.
    (783 SE2d 411)
   Dillard, Judge.

Following a physical altercation at a local sports bar, the State charged Shawn Harlacher, via indictment, with one count of criminal attempt to commit aggravated assault with a deadly weapon. Harlacher filed a motion for a general demurrer, arguing that it is impossible to attempt to commit an aggravated assault, and thus, the indictment failed to allege any criminal offense under the laws of the State of Georgia. The trial court granted Harlacher’s demurrer, and the State now appeals. For the reasons set forth infra, we affirm.

The record, as alleged by the State, shows that on August 24, 2014, Harlacher and the victim were patronizing a local sports pub when they became involved in a verbal altercation, which then escalated into a physical fight. By all accounts, during the fight, the victim broke Harlacher’s nose, and when the fight was over, the victim turned to go back into the pub. As the victim walked away, Harlacher drew a handgun and pointed it at the victim’s head but did not fire. The victim never saw Harlacher’s gun, continued walking away, and the incident ended without any further violence.

Subsequently, the State charged Harlacher, via indictment, with one count of criminal attempt to commit aggravated assault with a deadly weapon. Specifically, the indictment alleged that Harlacher

did knowingly and intentionally attempt to commit the crime of Aggravated Assault with a Deadly Weapon, in violation of Code Section 16-5-21... in that the said accused did attempt to place [the victim] in reasonable apprehension of immediately receiving a violent injury with a pistol, a deadly weapon and an object which when used offensively against a person is likely to result in serious bodily injury, by pointing said pistol at said [victim], an act which constitutes a substantial step toward the commission of said crime ....

On March 11, 2015, Harlacher filed a motion for a demurrer, arguing that assault is an attempt to commit battery and because “a person cannot be convicted of attempting to commit a crime that is itself an attempt to commit a crime,” the indictment failed to charge an offense under Georgia law. A few weeks later, the trial court held a hearing on Harlacher’s motion, and at the conclusion of the hearing, it granted the demurrer and dismissed the indictment, ruling that Harlacher could not be convicted of attempting to commit aggravated assault because (1) assault is itself an attempt to commit a crime, and (2) the victim was unaware of the attempt. This appeal by the State follows.

At the outset, we note that an accused may challenge the sufficiency of an indictment by filing a general or special demurrer. A general demurrer, as the trial court granted here, “challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment.” But an indictment shall be deemed sufficiently technical and correct to withstand a general demurrer if it “states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury.” More fully explained,

if an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true, then the indictment is sufficient to withstand a general demurrer; however, if an accused can admit to all of the facts charged in the indictment and still be innocent of a crime, the indictment is insufficient and is subject to a general demurrer.

Furthermore, this Court reviews a trial court’s ruling on a general or special demurrer de novo in order to determine “whether the allegations in the indictment are legally sufficient.” It is with these guiding principles in mind that we now address the State’s claim of error.

The State contends that the trial court erred in granting Harlacher’s motion for a general demurrer. Specifically, the State argues that although, under OCGA § 16-5-20 (a) (1), simple assault — which is an essential element ofan aggravated assault under OCGA § 16-5-21 (b) — is an attempted battery, simple assault under OCGA § 16-5-20 (a) (2) is not an inchoate offense and, therefore, a defendant can be convicted of attempting to commit such an offense. We are constrained to disagree.

Our analysis, of course, begins with an examination of the relevant statutes, and thus, we note that the fundamental rules of statutory construction require us to “construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” Put another way, when we consider the meaning of a statute, we must “(1) presume that the General Assembly meant what it said and said what it meant, and (2) read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.” As our Supreme Court has explained,

[i]n our search for the meaning of a particular statutory provision, we look not only to the words of that provision, but we consider its legal context as well. After all, context is the primary determinant of meaning. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.

This is what we mean when we speak of discerning “the intent of the legislature,” as that “intent” is reflected in the relevant statutory text and its contextual backdrop.

Turning to the statutory provisions at issue, the State charged Harlacher with criminal attempt to commit aggravated assault by alleging that he attempted to place the victim in apprehension of receiving a violent injury with a pistol. Under former OCGA § 16-5-21 (b) (2), “[a] person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury . . . .” And under OCGA § 16-4-1, “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”

With regard to assault, OCGA § 16-5-20 (a) (1) provides: “A person commits the offense of simple assault when he or she . . . [a]ttempts to commit a violent injury to the person of another ...” Thus, under the plain language of this statutory provision, simple assault is, in essence, an attempted battery with the focus on the intention of the perpetrator to injure the victim. And as Harlacher argues and the State concedes, “[w]e know of no law authorizing the conviction for an attempt to commit a crime which itself is a particular type of attempt to commit a crime.”

In stark contrast, OCGA § 16-5-20 (a) (2) provides: “A person commits the offense of simple assault when he or she... [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury ....” Accordingly, the focus of a reasonable apprehension of harm type of simple assault, under OCGA § 16-5-20 (a) (2), is “on the apprehension of the victim.”

Given these differences in the elements of the respective offenses, and more specifically the fact that, unlike OCGA § 16-5-20 (a) (1), the plain meaning of OCGA § 16-5-20 (a) (2) does not include “attempt” as an element of the offense, it would indeed seem feasible to convict an accused of attempting a reasonable-apprehension-of-harm type of assault. However, as the State concedes, the fact that the victim was unaware that Harlacher aimed a handgun at him precludes a conviction of ^completed aggravated assault under OCGA §§ 16-5-21 (b) (2) and 16-5-20 (a) (2). And although we find persuasive the State’s logic (as dictated by the plain meaning of the relevant text) that a victim’s lack of awareness of a reasonable-apprehension-of-harm type of assault should not preclude a conviction of an attempt to do so when, as here, Harlacher took substantial steps toward committing such a crime, we are nonetheless constrained by precedent that seemingly dictates otherwise. Indeed, the Supreme Court of Georgia has previously explained that if a “victim is not placed in reasonable apprehension of immediate violent injury by the pointing of [a] firearm, only the misdemeanor of pointing a firearm . . . has been committed.” Thus, regardless of the merits of the State’s position, our Supreme Court — by implication at the very least — appears to have foreclosed the argument that the victim’s lack of a reasonable apprehension of immediately receiving a violent injury can nevertheless result in a conviction for attempted aggravated assault. Accordingly, until such time as the Supreme Court of Georgia clarifies the extent of its holding in Rhodes, we are obliged to rule that the trial court did not err in granting Harlacher’s general demurrer.

Judgment affirmed.

Ellington, P. J., concurs. McFadden, J., concurs specially.

Decided March 2, 2016.

Peter J. Skandalakis, District Attorney, John H. Cranford, Jr., Assistant District Attorney, for appellant.

Kam, Ebersbach & Lewis, Emily C. Gross, for appellee.

McFADDEN, Judge,

concurring specially.

I concur in the judgment and in all of its analysis — except the text supported by footnotes 10 and 11. That text, which I take to be incidental to the majority’s analysis, undertakes to explain “what we mean when we speak of discerning ‘the intent of the legislature.’ ”

“In all interpretations of statutes,” we are charged to “look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). The majority does not cite OCGA § 1-3-1 (a), but as I understand the text supported by those footnotes, it purports to authoritatively construe and confine the principle set out in that statute.

But that principle was in our first official Code, was part of our law long before that, and can be traced back to Blackstone’s Commentaries on the Laws of England. See Everett v. Planters’ Bank, 61 Ga. 38, 41 (1878); Forman v. Troup, 30 Ga. 496, 498 (1860); Booth v. Williams, 2 Ga. 252, 254 (1847); see also Persons v. Hight, 4 Ga. 474, 501 (1848) (Warner, J., dissenting).

No doubt much of what has been written over the centuries in the hundreds of Georgia appellate decisions citing that principle can fairly be reconciled with what the majority writes today. But I am not prepared to declare that all of it can. Nor am I prepared to broadly disapprove of any and all of those opinions that cannot be so reconciled — especially as many of them are opinions of our Supreme Court.

       See OCGA § 5-7-1 (a) (1) (“An appeal may be taken by and on behalf of the State of Georgia from the superior courts, state courts . .. and such other courts from which a direct appeal is authorized to the Court of Appeals and the Supreme Court in criminal cases... [f]rom an order, decision, or judgment setting aside or dismissing any indictment, accusation ... or any count thereof. . ..”).

        See State v. Corhen, 306 Ga. App. 495, 496 (700 SE2d 912) (2010).

         Id. at 496-97 (punctuation omitted); see also Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993).

       OCGA § 17-7-54 (a); see also Corhen, 306 Ga. App. at 497.

        Corhen, 306 Ga. App. at 497; see also Lowe v. State, 276 Ga. 538, 539 (2) (579 SE2d 728) (2003); Dunbar, 209 Ga. App. at 98 (2).

        Sallee v. State, 329 Ga. App. 612, 616 (2) (765 SE2d 758) (2014); see also Corhen, 306 Ga. App. at 497.

        Algren v. State, 330 Ga. App. 1, 6 (3) (764 SE2d 611) (2014) (punctuation omitted); see also Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013) (“[A]s with any question of statutory interpretation, we necessarily begin our analysis with familiar and binding canons of construction. Indeed, in considering the meaning of a statute, our charge as an appellate court is to ‘presume that the General Assembly meant what it said and said what it meant.’ And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, and read the text ‘in its most natural and reasonable way, as an ordinary speaker of the English language would.’ In sum, where the language of a statute is plain and susceptible of only one natural and reasonable construction, ‘courts must construe the statute accordingly.’ ”) (citations and punctuation omitted).

        Algren, 330 Ga. App. at 6-7 (3) (punctuation and footnote omitted); see also Fed. Dep. Ins. Corp. v. Loudermilk, 295 Ga. 579, 588 (2) (761 SE2d 332) (2014); Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013).

        Loudermilk, 295 Ga. at 588 (2) (punctuation omitted); see also May v. State, 295 Ga. 388, 391-92 (761 SE2d 38) (2014); Martinez, 325 Ga. App. at 273 (2).

        State v. Mussman, 289 Ga. 586, 588 (1) (713 SE2d 822) (2011) (punctuation omitted).

        See Loudermilk, 295 Ga. at 588 (2); May, 295 Ga. at 391-92; Algren, 330 Ga. App. at 7 (3); Martinez, 325 Ga. App. at 273 (2).

        See former OCGA § 16-5-21 (b) (2) (2014). In 2015, subsection (m) was slightly modified, but that modification bears no relevance to this appeal. See Ga. L. 2015, p. 422, § 5-19.

        See Maynor v. State, 257 Ga. App. 151, 154 (570 SE2d 428) (2002) (noting that simple assault is an attempted battery under OCGA § 16-5-20 (a) (1) that focuses on the intention of the perpetrator to injure the victim).

        Porter v. State, 124 Ga. App. 285, 286 (183 SE2d 631) (1971).

        Maynor, 257 Ga. App. at 154.

        See State v. Godsey, 127 P3d 11, 15 (B) (Wash. App. 2006) (holding that “[bjecause the ‘apprehension’ type of assault lacks an attempt element, it is feasible to convict someone of attempting an assault by such means”); Lamb v. State, 613 A2d 402, 419-20 (Md. App. 1992) (noting that there may not be an attempted assault of the attempted-battery variety because that type of assault is already inchoate and there may not he an attempted attempt, but when the assault “is of the intent-to-frighten variety, there is no reason whatsoever why there cannot be an attempt to commit it”).

        See Perez v. State, 281 Ga. 175, 177 (2) (637 SE2d 30) (2006) (holding that the evidence was insufficient to find defendant guilty of aggravated assault because there was no evidence that the unconscious victim was in apprehension of being injured); Montford v. State, 254 Ga. App. 524, 527 (1) (b) (564 SE2d 216) (2002) (holding that because there was no evidence that police officer saw defendant’s car approaching, the evidence was insufficient to establish that officer was in reasonable apprehension of immediately receiving a violent injury when defendant collided with officer’s vehicle so as to prove requisite apprehension element of aggravated assault).

        See OCGA § 16-4-1; see generally Anthony v. State, 276 Ga. App. 107, 108 (1) (622 SE2d 450) (2005) (noting that “the presence of a gun would normally place a victim in reasonable apprehension of being injured violently” (punctuation omitted)).

        See Ga. Const. art. VI, § VI, ¶ VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”); State v. Smith, 308 Ga. App. 345, 352 (707 SE2d 560) (2011) (“[T]he doctrine of stare decisis prohibits this Court from ignoring the valid precedent of a higher court.”).

        Rhodes v. State, 257 Ga. 368, 370 (5) (359 SE2d 670) (1987) (emphasis added); see also Manzano v. State, 282 Ga. 557, 558-59 (2) (651 SE2d 661) (2007) (same); OCGA § 16-11-102 (“A person is guilty of a misdemeanor when he intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded.”).

        See supra note 20.


source: Caselaw Access Project

author: Doyle, Chief Judge.

license: Public Domain

text:
    A15A2017.
    A15A2018.
    In the Interest of M. M. R., a child. In the Interest of D. J. T., a child.
    (783 SE2d 415)
   Doyle, Chief Judge.

These related appeals from the juvenile court’s termination orders involve an extended family in which the biological grandmother, who is also the adoptive mother of D. J. T., was caring for D. J. T., M. M. R., and three other grandchildren when they were removed from her care by the Department of Family and Children Services (“the Department”). M. M. R.’s mother (“the mother,” who is neither the biological nor legal mother of the other four children and who is the grandmother’s biological daughter) was incarcerated at the time six-year-old M. M. R., eight-year-old D. J. T., and the three other children were taken into care. Because many of the pertinent facts overlap, we have consolidated the cases for purposes of the appeals.

In Case No. A15A2018, the grandmother appeals the trial court’s order terminating her parental rights toD. J. T., arguing that the trial court erred by granting the petition to terminate because it lacked clear and convincing evidence to support a finding (1) of present deprivation; (2) that the cause of the deprivation was likely to continue; (3) that a present deprivation would cause serious mental, physical, emotional, or moral harm to the child; (4) that termination was in the best interests of the child; and (5) that she failed to support the child pursuant to former OCGA § 15-11-94 (b) (2).

In Case No. A15A2017, the mother appeals the trial court’s order terminating her rights to M. M. R., arguing that the trial court erred by granting the petition to terminate because it lacked clear and convincing evidence to support a finding (1) of present deprivation; (2) that the cause of the deprivation was likely to continue; (3) that a present deprivation would cause serious mental, physical, emotional, or moral harm to the child; (4) that termination was in the best interests of the child; and (5) that she failed to support the child pursuant to former OCGA § 15-11-94 (b) (2).

For the reasons that follow, we reverse the termination orders in both cases.

On appeal from a juvenile court’s decision to terminate parental rights, we review the evidence in the light most favorable to the court’s decision and determine whether any rational trier of fact could have found by clear and convincing evidence that the parental rights should be terminated. We do not weigh the evidence or resolve credibility issues, but merely determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. However, we proceed in a termination case with the knowledge that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.

The record shows that in 2011 the grandmother and mother made plans to move from Fairview, Tennessee, to Georgia to care for an elderly family friend. By March 2012, however, the mother had been incarcerated, and the grandmother made plans to move to a rental home in Taimo, Georgia, with her adult son, his wife, and the grandmother’s five grandchildren, including D. J. T., M. M. R., and three others for whom she was caring but had no formal parental rights except for D. J. T., her adoptive son. After arriving at the area with their belongings and checking into a hotel to await some final repairs to the home, the adults were told by the landlords that the landlords had decided not to rent the house, and the landlords failed to return all of the grandmother’s pre-paid rent and security deposit. At that point, the grandmother and her adult son and daughter-in-law moved with the children into a tent in an Effingham County campground. The grandmother testified that she went to the Department to get assistance, but before she received a response from them, she called police to report that her adult son was stealing her belongings. The officer responding to her police report stated that he would contact the Department on her behalf to meet with her the next day about assisting the family. In contrast, the deprivation order states that the Department discovered the children and grandmother after receiving reports of unsupervised children playing near a lake at the campground.

When a caseworker arrived at the scene, the conditions of the children showed evidence of neglect, including soiled undergarments and dried feces on the younger children, and the grandmother was “not responsive” to the caseworker’s attempts to rouse her. The children were taken into shelter care at that time, and on April 27, 2012, nunc pro tunc to April 16, 2012, the juvenile court entered an order finding the children deprived based on lack of supervision/neglect and educational neglect because D. J. T. and an older child were not enrolled in school.

The Department prepared a case plan as to the grandmother with regard to D. J. T., requiring that she (1) complete parenting education; (2) maintain a source of income; (3) maintain stable, appropriate housing; (4) complete a psychological evaluation; (5) submit to a drug and alcohol assessment and follow any recommendations therefrom; and (6) document any medically necessary prescriptions.

The record does not contain a case plan for the mother to reunify with M. M. R. prior to one dated April 5, 2013, but that plan states that she must (1) remain out of jail; (2) complete a home evaluation and assessment; (3) submit to a drug and alcohol assessment and follow any recommendations therefrom; (4) have clean drug screens; (5) maintain a bond with M. M. R.; and (6) complete a psychological evaluation. The case plan notes that while the mother had been incarcerated she had corresponded with M. M. R., and it noted that she expressed interest in working on her case plan since her release.

On April 3, 2013, the Department filed a petition to terminate the grandmother’s parental rights as to D. J. T. The petition reiterated the circumstances of D. J. T. at the time he and his cousins were taken into custody at the campground, and it alleged that the grandmother had “made little progress with her case plan.” The Department contended that the grandmother had not (1) completed parenting classes, (2) supported D. J. T., (3) provided proof of stable income or housing, (4) provided proof of alcohol or prescription drug evaluation, (5) followed up with her psychiatrist, or (6) visited consistently with D. J. T. in the year he was in Department custody. The case plan stated that the reasons D. J. T. came into custody were inadequate housing and neglect based on living in the campground. The Department contended that in November 2012, the grandmother was evicted from a home in Georgia, and in December 2012, she moved back to Tennessee. Department caseworkers testified that between the March 2012 removal of the children and the grandmother’s December 2012 move to Tennessee, she had made minimal progress toward her plan goals.

On April 3, 2013, the Department also filed a petition to terminate the mother’s parental rights as to M. M. R. The petition reiterated the circumstances at the time M. M. R. and her cousins were taken into custody in March 2012, and it alleged that the mother had “made little progress with her case plan.” Immediately after that sentence, the petition stated that the mother had “made no progress on her case plan.” The petition acknowledged that the mother was incarcerated nearly the entire time between M. M. R.’s initial deprivation and the April 2013 petition to terminate, and it also acknowledged that she took parenting classes while in prison and consistently corresponded with M. M. R. The petition contended that the mother had not completed a psychological exam or drug and alcohol assessments, and it contended that she failed to support M. M. R.

At the December 2013 termination hearing, the grandmother testified that in January 2012, prior to the mother’s release from prison, she moved to a home in Smithfield, Tennessee. The grandmother, after having had no income for eight months, began receiving permanent disability payments of $3,500 a month and maintained health insurance on all five of the grandchildren throughout the pendency of the Department’s custody. After the mother was released from prison on February 27, 2013, she moved to Tennessee and lived with the grandmother; she obtained a full-time job, which she still held at the time of the termination hearing in December 2013. Both the grandmother and the mother visited weekly by phone with D. J. T. and M. M. R. respectively, only missing calls occasionally because of foster parent scheduling or poor phone connections, making up the missed sessions later. The grandmother admitted that she had few in-person visits with the children because the visits were costly and time intensive (approximately ten hours of travel one way) for the one- to two-hour visits they were allowed. The grandmother stated that although in the past she had arguments with the mother, the mother had stopped using narcotics, was attending Narcotics Anonymous, and was “doing wonderfully].”

The grandmother contended that she had completed every portion of her case plan, doing some in Georgia and some in Tennessee. She admitted she had not paid child support, but contended the Department told her she would receive notification of an amount, which was never provided.

The mother testified that she was incarcerated in February 2012 for forging checks, at which point M. M. R. went to live with the grandmother. The mother was released from prison on February 27, 2013. The mother admitted that she had gotten into arguments with her mother, but since she stopped using drugs, their relationship had improved substantially. The mother stated that she had completed her case plan, including parenting classes, psychological evaluation, alcohol and drug evaluation, and housing approval. She testified that after starting employment in April 2013, she was currently a crew trainer at a fast-food restaurant and was going to take management classes soon for a better position as well as start college classes later in the year. The mother had given birth to another child shortly before going to prison, and she had custody of this child without any reported instances of abuse or neglect. She stated that she had asked the Department at least twice about child support payments, and she was told that “they would get back to [her] about it.” The mother stated that she already had a bond with M. M. R., and she maintained it via weekly phone calls, which she only missed because of bad reception and which she always made up at later times; she testified that she loved M. M. R. and felt she could parent her properly. The mother admitted that she had abused prescription medication, which led to her check forgery conviction and to arguments with the grandmother, but she testified to having made many changes in her life and taken control of her issues.

The Department caseworker testified that the grandmother and the mother had completed the steps in their case plans but because the two were out of state, the caseworker could not observe that the grandmother would be able to parent D. J. T. or that the mother would be able to parent M. M. R. The Department caseworker only observed one in-person visit between M. M. R. and the mother, and testified that

[M. M. R.] was excited to see her mother. She knew who she was. They talked about books and things. It seemed to be — I think because they had been — not—M. M. R. had not seen her for a very long time, it was more of — she had a good visit, but it was more like friends than a mother daughter visit.

The caseworker admitted that the Department had not put a child support order in place, and she did not state whether the Department ever asked the mother or the grandmother to provide an amount certain to a place certain in order to fulfill the requirement that they pay child support. When asked whether D. J. T. would still be deprived if returned to the grandmother, the caseworker responded that “I believe he would based on the fact that I — I can’t testify to the fact, I don’t know if [the grandmother] has ultimately changed by checking certain things off on her case plan. I’m not sure if the reasons why he came into care are no longer present.” When asked whether M. M. R. would continue to be deprived, the caseworker testified that “I could not [say she would not be deprived] for the same reasons, I haven’t been able to see any [parenting interaction, bonds, everything] throughout, since I guess March or when [she] moved to Tennessee.” The caseworker testified it was in the best interests of D. J. T. or M. M. R. to have the grandmother’s and mother’s parental rights terminated, but she did not explain why. The caseworker contended that she was not sure if the mother understood M. M. R.’s needs having not parented her for two years.

The Court-Appointed Special Advocate (“CASA”) testified that she recommended terminating the parental rights of the grandmother and the mother. When asked why she recommended this as to D. J. T., she stated that he needed “stability.” The CASA acknowledged that much of the reason for the grandmother’s problems working on her case plan during 2012 was because she had surgery and she had been traveling between Tennessee and Georgia to care for her dying father, resulting in “the kids . . . not [being] a top priority.” The CASA was not aware that D. J. T. had any problems, until recently when his foster home gained another foster child and he began exhibiting behavioral issues. The CASA stated that if the court decided to give custody of M. M. R. and D. J. T. to the mother and the grandmother respectively, the children “will be okay.”

Regarding M. M. R., the CASA testified that she had made a lot of improvements, and if she is moved to the mother’s home “the entire family will need a lot of support for th[e] adjustment.” She also testified that since the mother

has been out of prisonf,] she has taken all of my suggestions. There were some things early on with conversations between her and [M. M. R.] that might not have always been positive in the right direction and [M. M. R.] had some issues after those were over[,] and I gave her some suggestions and she has always followed those, and I really think she — that she wants to and would do what’s best for [M. M. R.], but I don’t think that she really understands how severe her needs are at this time.

M. M. R.’s foster mother, who has three other children in her home, testified that the child had very violent temper tantrums, and she described her emotional development as “pre-infant level.” She also testified that M. M. R. would defecate in her underwear since moving into their home, and then she would hide the soiled undergarment somewhere in her room or other places in the home. The foster mother testified that she believed that because she lived in a tent for a month, M. M. R. began holding her feces, which led to a distended bowel — an issue that they were working on with a gastrointestinal specialist. The foster mother testified that M. M. R. stole things at school and would lie about it, was very clingy, and had nightmares, but these issues had gotten better since being in the home.

The grandmother testified that M. M. R. did not have issues with wetting or soiling her clothing and then hiding it or with temper tantrums when M. M. R. was in her care, and the mother stated that M. M. R. did not have issues aside from normal nighttime bed-wetting prior to going into State custody.

Case No. A15A2018

On January 2, 2014, the trial court granted the Department’s petition to terminate the grandmother’s parental rights as to D. J. T. In its order, the court found that both the guardian ad litem and the CASA submitted reports recommending termination of parental rights, but provided no indication of what information those reports might contain. The juvenile court found that “evidence at the termination hearing was nearly identical to the evidence at the deprivation hearing and at every review hearing conducted by this [c] ourt.” It also found that the grandmother had visited “sporadically” with D. J. T. such that Department caseworkers could not conclude whether the grandmother was parenting appropriately, and the grandmother had not completed her case plan. The court found that after moving to Tennessee in December 2013, the grandmother had not exercised all the available in-person visitation available with D. J. T., and thus, had failed to maintain a bond with him. The court also found that the grandmother had not supported the child as contemplated by OCGA § 15-11-94 (b) (2).

Under the previous Juvenile Code, a two-step process was utilized

in termination of parental rights cases. First, the [juvenile] court determine [d] whether there [was] present clear and convincing evidence of parental misconduct or inability. Four factors [were required] to establish parental misconduct or inability: (1) the child must [have been] deprived; (2) the lack of proper parental care or control by the parent in question must [have] cause[d] the deprivation; (3) the cause of the deprivation must [have been] likely to continue; and (4) continued deprivation must [have been] likely to cause the child serious physical, mental, emotional, or moral harm. If the [juvenile court found] that th[o]se four factors exist, then the court determine[d] whether termination of parental rights [was] in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child, including the need for a secure and stable home.

1. (a) Deprivation. The grandmother did not appeal the juvenile court orders finding D. J. T. to be deprived. While that failure to appeal often means that a parent is bound by the previous findings as to the existence of a deprivation, in this case, the record does not support a finding that those prior conditions continue to exist.

As an initial matter, the record does not support the juvenile court’s finding that “[t]he evidence at the termination hearing was nearly identical to the evidence at the deprivation hearing____” There was no evidence that the grandmother was still living in a tent in a state park. Additionally, to the extent that during the eight months she remained in Georgia the grandmother could not show evidence of stable income or housing, the record at the termination hearing undisputably established that after moving to Tennessee in late 2012, the grandmother has secured stable monthly income sufficient to support herself and D. J. T. Moreover, she secured stable, suitable housing and community support in Tennessee, and the home had been evaluated by Tennessee authorities. Thus, to the extent that the juvenile court based its finding of deprivation upon a finding that the grandmother continued to live in the same circumstances as those at the time of the deprivation order and that D. J. T. would experience the same circumstances if returned to her, the court’s order is not supported by clear and convincing evidence.

(b) Lack of proper parental care and control is the cause of the deprivation. To the extent that D. J. T. was deprived at the time he was taken into custody in 2012, the grandmother does not dispute that she was the cause of that deprivation.

(c) The cause of the deprivation is likely to continue. The juvenile court found that the grandmother had not progressed in her case plan; however, the record actually established (and the Department largely acknowledged) that the grandmother had completed the majority of her case plan requirements. Further, there is no evidence of a specific portion of the case plan that she has failed to fulfill, and the main concern on the part of the Department caseworker was the caseworker’s lack of observation of the grandmother’s in-person parenting. The caseworker, however, did not provide any evidence that the grandmother’s parenting ability would cause serious harm to D. J. T.; rather, she simply had not had an opportunity to observe the grandmother to her satisfaction. Indeed, the caseworker testified that D. J. T. “visits with [the grandmother were] generally good.” The juvenile court’s finding that the grandmother failed to maintain a bond with D. J. T. is contrary to all the evidence in the record, including the caseworker’s testimony, and the fact that the grandmother maintained weekly phone visitation with D. J. T. after moving to Tennessee, although it is true that she did not visit in person with him frequently based on the extreme distance between the locations.

(d) Continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. The grandmother contends, and we agree, that the record is devoid of evidence that serious harm would result if D. J. T. was returned to the grandmother or if the status quo was maintained while the grandmother continued to work on her case plan. The juvenile court’s order cites to general propositions regarding stability through adoption, but there is no specific evidence that D. J. T. was suffering harm in the current arrangement or that he would suffer harm in the event he was returned to the grandmother’s custody under the improved circumstances. Indeed, the record shows that while in the Department’s custody, D. J. T. has moved through four different foster homes, and he was exhibiting emotional issues in his current foster home because of the addition of another nonsibling foster child.

2. Termination of the grandmother’s parental rights was in D. J. T.’s best interest. Again, the record is devoid of substantial testimony or evidence that it is in D. J. T.’s best interest that the grandmother’s parental rights to him are terminated at this time. As stated previously, there is evidence that he is having issues with being one of two foster children in his current home, whereas he would be the only child under the care of the grandmother if he was returned to her. Despite the trial court’s findings otherwise, the record shows that the grandmother has substantially completed her case plan. While her move back to Tennessee may have made more difficult the Department’s job in reuniting D. J. T. and the grandmother, it is clear from the record that she has stabilized her income and housing, has community support, and has made positive improvements in her relationship with her daughter. The Department presented no evidence that the grandmother was a poor parent to D. J. T. outside of her issues with income and housing stability prior to returning to Tennessee. Thus, the juvenile court erred by making this finding.

3. Failure to support under OCGA § 15-11-94 (b) (2). Finally, we agree with the grandmother’s contention that the juvenile court’s finding that she failed to support D. J. T, thus supporting its order of termination, was without clear and convincing evidence. First, there is no order of support. To the extent that there is any mention in any document of a need to pay an unknown amount of support, it is only a general statement in the initial case plan. And finally, it is undisputed that the grandmother paid to have all five of the grandchildren including D. J. T. medically insured, which is evidence of support, in addition to gifts she would bring during visitation.

Because the juvenile court’s findings were not supported by clear and convincing evidence, the court abused its discretion by terminating the grandmother’s parental rights to D. J. T. Accordingly, we reverse the order in Case No. A15A2018.

Case No. Al 5A2017

On January 2,2014, the juvenile court granted the Department’s petition as to M. M. R. In its order, the court again found that “evidence at the termination hearing was nearly identical to the evidence at the deprivation hearing and at every review hearing conducted by this [c]ourt.” It also found that the mother had not parented M. M. R. in almost two years and had not exercised her in-person visitation. The court found that although the mother had provided gifts and other items when visiting M. M. R., this did not constitute supporting the child as contemplated by OCGA § 15-11-94 (b) (2).

4. (a) Deprivation. The mother did not appeal the juvenile court orders finding M. M. R. to be deprived. Normally, a parent is bound by the court’s findings with regard to those previous orders of deprivation. The most recent deprivation order found M. M. R. deprived as to the mother because of her incarceration, her unstable housing, and her failure to provide adequate support for the child due to unstable or irregular employment. The evidence at the termination hearing, however, showed that the mother had secured steady employment and housing after leaving prison, and she was advancing at her workplace. Moreover, she had plans to enter school and to train for a management position at her current employer. Thus, to the extent that the juvenile court based its finding of deprivation upon a finding that the mother was incarcerated and that the child would continue to live in the same circumstances as those at the time of the deprivation order, the court’s order is not supported by clear and convincing evidence.

(b) Lack of proper parental care and control is the cause of the deprivation. It is undisputed that to the extent M. M. R. previously was deprived, it was at least in part due to the mother’s lack of care because she was incarcerated.

(c) The cause of the deprivation is likely to continue. Again, the juvenile court’s order was not supported by clear and convincing evidence. The testimony showed that the mother maintained contact with M. M. R. while she was incarcerated as well as after her release on a weekly basis. Since leaving prison, the mother had secured stable housing as well as a stable job in which she had received a higher position with opportunity to continue advancing. The mother took responsibility for her past prescription drug abuse, and she was attending Narcotics Anonymous meetings. All the evidence showed that the mother had taken all the steps necessary to complete her case plan with the exception that the Department’s caseworker had not had an opportunity to observe her in-person parenting skills to the caseworker’s satisfaction. But this issue seems, at least in part, based upon the Department’s failure or refusal to remediate the distance and monetary factors preventing the mother from visiting in person. Based on these facts, the juvenile court erred by finding that the deprivation was likely to continue.

(d) Continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. There was a great deal of testimony presented by M. M. R.’s foster mother about her issues with tantrums and with gastrointestinal issues that the foster mother speculated arose from M. M. R. living in the campground. The Department, however, presented no evidence from a medical or psychological professional showing whether these issues resulted from the mother’s actions, the grandmother’s actions, or from the upheaval of the past two years, including M. M. R.’s time in foster care. To the extent that any of these issues were based on past deprivation, there was no evidence showing that M. M. R. would be harmed further by continuing the status quo or by being returned to her mother’s care. In fact, the CASA testified that she believed that the mother was working diligently on her plan and wanted to regain custody by taking suggestions on parenting from the CASA and that M. M. R. would “be okay” if returned. At most, there was testimony to support a finding that the mother and M. M. R. would need continued support for M. M. R.’s issues if custody was transferred. Accordingly, the juvenile court erred by finding that continued deprivation would cause serious harm to M. M. R.

5. Termination of the mother’s parental rights was in M. M. R.’s best interest. As stated above, the juvenile court’s order is without clear and convincing evidence. While permanency is desirable for all children, there was testimony that M. M. R.’s issues in her foster home were on-going, and no testimony or other evidence showed that the issues would be exacerbated or would be untreatable if her care were transferred back to her mother or if the status quo were maintained. The mother worked to maintain her bond with M. M. R. throughout her incarceration and afterward, and although her choice to move to Tennessee made it more difficult for the Department to observe her parenting skills, it does not mean that termination is supported as a result thereof.

Decided March 2, 2016.

The Rafter Law Firm, Richard R. Rafter, for appellants.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Jennifer C. Mock, Assistant Attorneys General, for appellee.

6. Failure to pay child support pursuant to OCGA § 15-11-94 (b) (2). As stated in Division 3, the Department never provided specific instructions or amounts for payment of support; instead, the Department apparently rebuffed the mother’s attempts to obtain information regarding support payments. Accordingly, the trial court erred by finding that the mother had failed to provide support or that termination of her rights could be based on such a finding.

‘While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship. Termination of parental rights is a remedy of last resort.” Because the juvenile court’s findings were not supported by clear and convincing evidence, the court abused its discretion by terminating the mother’s parental rights to M. M. R. Accordingly, we reverse the order in Case No. A15A2017.

Judgments reversed.

Phipps, P. J., concurs. Boggs, J., concurs in judgment only.

       This Court granted the mother’s application for discretionary appeal on February 3, 2014, and we granted the grandmother’s motion for reconsideration of the denial of her application for discretionary appeal on April 1, 2014, allowing her appeal to proceed as well. After docketing, the cases were remanded on March 27, 2015, to the juvenile court for completion of the appellate record, and they were redocketed in this Court on June 24,2015. To the extent that either of the termination orders rule on the parental rights of parties other than the mother and the grandmother, those rulings were not appealed to this Court, nor were the termination of rights as to the three other children taken into the Department’s custody. Based on our review of the record, neither the mother nor the grandmother had legal custody rights to those three children.

       Georgia’s former Juvenile Code applies to this case because it commenced in 2013. See generally In the Interest of G. R. B., 330 Ga. App. 693, n. 1 (769 SE2d 119) (2015) (explaining that the new Juvenile Code applies to juvenile proceedings commenced on or after January 1,2014, and describing changes made by new Juvenile Code pertaining to deprivation proceedings).

       Because the majority of the facts surrounding the deprivation occurred while the children were in the grandmother’s care, we address her appeal first.

       (Citations and punctuation omitted.) In the Interest of S. B., 335 Ga. App. 1, 6 (1) (780 SE2d 520) (2015).

       According to the grandmother, and it is undisputed, she raised D. J. T. since he was ten months old and legally adopted him at age eight.

       It is unclear whether any of the children were the offspring of the adult son and daughter-in-law, who are not parties to this appeal.

       There is no discussion of the whereabouts of the adult son or the daughter-in-law at that time.

       This plan is dated two days after the Department filed its termination petition and only thirty-six days after the mother’s release from jail. It refers to earlier plans, but these do not appear in the record.

       The grandmother previously was a nurse for the Department of Veterans Affairs. She stopped working in 2011 when she had a devastating neck and back injury, after which she retired on disability. Her disability payments did not begin until February 2013.

       No expert testimony was provided to support the foster mother’s theory that this was a result of the stay at the campground.

       Neither of these reports appears in the record, and the bulk of the testimony by the CASA in support of termination centered on two of the younger children who were in the grandmother’s care but for whom the grandmother had no parental rights.

        In the Interest of R. C. M., 284 Ga. App. 791, 792 (645 SE2d 363) (2007).

       See id. at 798, n. 6 (explaining that former “OCGA § 15-11-94 (b) (4) (A) requires the juvenile court to determine whether the child is a deprived child — that is, at the time of the hearing on the petition for termination of parental rights — not whether the child has ever been a deprived child”) (punctuation omitted; emphasis in original) and compare with In the Interest of I. S., 278 Ga. 859, 861, n. 6 (607 SE2d 546) (2005).

       Compare with In the Interest of A. B., 251 Ga. App. 827, 830-831 (2) (555 SE2d 159) (2001).

       We note that this is in stark comparison to the evidence provided as to the younger grandchildren, who, unlike D. J. T., suffered from severe emotional and developmental issues to the point that the Department had to separate them from D. J. T. by moving them to different foster homes.

       See In the Interest of S. B., 335 Ga. App. at 8 (1); In the Interest of R. C. M., 284 Ga. App. at 799-800 (III) (3).

       See In the Interest of S. B., 335 Ga. App. at 9-10 (1).

       See In the Interest of D. R, 326 Ga. App. 101, 110-111 (1) (e) (756 SE2d 207) (2014) (holding that “there was insufficient clear and convincing evidence in the record to support a finding that the mother’s failure to pay child support was without justifiable cause” when no specific child support was ordered and only evidence of notice to mother was general order notice stating “[the Department] expects you to pay child support while your child is in state custody. Failure to pay child support is a ground for termination of your parental rights”). Compare with In the Interest of R. W., 248 Ga. App. 522, 526 (2) (546 SE2d 882) (2001) (noting that “[a] parent... has a statutory duty to support her children, with or without a court order”).

       See In the Interest of I. S., 278 Ga. at 861, n. 6.

       See In the Interest of R. C. M., 284 Ga. App. at 798 (III) (1), n. 6.

       See id. at 799-800 (III) (3), citing In the Interest of B. N. A., 248 Ga. App. 406, 410-411 (1) (546 SE2d 819) (2001); In the Interest of K. J., 226 Ga. App. 303, 305-306 (1), 307-308 (2) (486 SE2d 899) (1997).

       See In the Interest of K. J., 226 Ga. App. at 308 (2) (b).

       See In the Interest of S. B., 335 Ga. App. at 9-10 (1).

       See In the Interest of D. P., 326 Ga. App. at 110 (1) (c).

       (Punctuation omitted;) In the Interest of S. B., 335 Ga. App. at 9-10 (1), quoting In the Interest of C. S., 319 Ga. App. 138,148 (1) (735 SE2d 140) (2012); In the Interest of A.A., 252 Ga. App. 167, 173 (2) (c) (555 SE2d 827) (2001).


text:
    A15A2041.
    MOSAIC BUSINESS ADVISORY SERVICES, INC. v. STONE.
    (784 SE2d 426)
   Doyle, Chief Judge.

Following a jury trial, Mosaic Business Advisory Services, Inc., (“Mosaic”) appeals from a monetary award in favor of co-founder Lee Ann Stone in her suit against Mosaic alleging, in relevant part, breach of an agreement to pay her a percentage of profit from consulting work she originated and performed on behalf of Mosaic. Mosaic contends that the trial court erred by denying its motions for a directed verdict and judgment notwithstanding the verdict (“JNOV”), as well as denying its request for a jury charge on the enforceability of promises to pay future compensation. Mosaic predicates all of these arguments on the grounds that (1) there was inadequate consideration, (2) the alleged agreement was too indefinite to enforce, and (3) Stone terminated the compensation negotiations prior to reaching an enforceable agreement. For the reasons that follow, we affirm.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for directed verdict, new trial and [JNOV] will not be disturbed.

So viewed, the evidence shows that in 2010, Stone and Merrick Olives left their positions at an established consulting firm to form their own consulting firm, Mosaic Business Advisory Services, Inc. Initially, Stone and Olives discussed having a 49/51 percent ownership in favor of Olives, who is Hispanic, so that Mosaic would have a racial minority ownership status. But when Stone endured financial difficulty causing her to file for bankruptcy, the two decided that Olives would fund the start-up process and be the sole shareholder. Nevertheless, Stone and Olives were both officers and directors with equal voting power on the board, and they orally agreed that they would both make decisions jointly, including having equal authority as to compensation. As Olives described it,

we . . . agreed to run — on a day-to-day management perspective to run [the company] as . . . equal day-to-day managers. I felt like — we both felt like that would be the best way to run the company. So we both could make decisions about, you know, hiring, firing, budgets, all that kind of stuff as equal peers, but from an ownership standpoint, I was the sole owner.

Consistent with this, Mosaic’s bylaws provided that the board of directors (composed equally of Olives and Stone) was responsible for fixing the salaries of officers, and Olives agreed that compensation decisions would be made jointly.

In its first year, the young company was not profitable, but by late 2011, the company’s revenue was sufficient for Stone and Olives to take annual salaries of $195,000. Stone and Olives also discussed how to distribute 2011 bonuses, and they ultimately agreed that Stone, who had originated the majority of Mosaic’s business, would receive a payout of $234,442.09, and Olives would receive $32,549.90 in addition to $80,636.39 as debt repayment. The agreement over these numbers was reflected in a series of e-mails in late December 2011 and early January 2012 between Olives and Stone, including Olives’s statement that “[o]ur agreement was to close 2011 by distributing the estimated 2011 taxable income [according to client originator] and retiring the debt,” resulting in the payment amounts stated above. Olives also e-mailed this information to their accountant, with a copy to Stone, stating, “[y]ou probably got this from [Stone] already, but... [h]ere [are] the final numbers we decided [on] to close out 2011.”

A few days later, in January 2012, Stone and Olives began having disagreements about 2012 compensation. As part of that process, Olives decided not to pay Stone the full amount of her 2011 bonus, instead paying her $125,000 because of limited cash on hand and because he thought she might be in the process of leaving Mosaic and taking the clients. On January 17, 2012, Olives terminated Stone, based on his understanding of his authority as sole shareholder.

The next day, Olives and Stone exchanged e-mails and apologies, agreeing to continue discussions about compensation so that Stone would continue her work on behalf of Mosaic and its clients. In the following weeks, the two continued oral and e-mail communications to determine how to divide net profits, with Stone initially proposing an 80 percent payment to the originating founder, leaving 20 percent remaining in Mosaic to fund operations. Olives voiced a concern that Mosaic needed a higher margin to operate and suggested a 50 percent payment, with the remaining half funding operations. Discussions continued through the end of January 2012.

In the ensuing weeks, Stone and Olives reached a compromise: 65 percent of the net profit would be paid to the founder in charge of the proj ect, with 3 5 percent remaining in the company for operational expenses. As they tried to finalize other details such as the timing of payments, minimum cash reserves Mosaic should retain, and any safeguards addressing the departure of a founder, discussions about those terms deteriorated, despite Olives’s statement that “I think it is 95% of the way there.”

By May 2012, Stone had continued to work at Mosaic, and their discussions culminated in the following exchange regarding liquidity reserves, timing, and founder departure:

STONE: Here are my general thoughts added to your comments below. I thought you might want to see my thoughts so you too can think about it before we talk on Wednesday. We both acknowledge that we have different views on this, and I am assuming that you want as I do to come to a mutually beneficial compromise. If you have an immediate response to any of this, please feel free to send it along; otherwise, we can talk through it more on Wed.
OLIVES: I’m tired of talking about this. I have no intent to fire you, have agreed to 65% of margins, and the Company will pay it out when it has the cash. You have to decide if that’s good enough for you and that you are in this for the long haul. If not, we can have a different conversation on Wednesday.
STONE: Wow, that’s not the response I was expecting. ... I see that you cancelled Wednesday’s meeting. Thanks a lot. I know this agreement doesn’t matter to you, but it did to me. I can see that you are still completely angry about the events of last year ■ — ■ events which you clearly hold me responsible for — so just forget about the compensation agreement. You won’t have to talk about it again.

At trial, Stone testified that this reflected her view that they had already agreed to the percentages as to bonus compensation, and a written document detailing the other terms (timing, operating reserves, and founder departure) was not necessary to enforce the bonus component. Consistent with this testimony, the e-mail chain included a mutual agreement on the percentages as well as Olives’s statement that, based on client origination and work, Stone would be the only founder eligible to receive bonus compensation scheduled for July 2012, and that Stone should “rest easy that the Company should have plenty of cash to pay your July bonus if current receivables come in a timely manner.” As of June 30, 2012, Mosaic’s revenue account had a balance of $328,143.79.

Throughout this process, Stone continued to work at Mosaic based on her belief that they had agreed to 65 percent bonus payments. By the end of May 2012, Stone was able to renew a large client’s annual contract for approximately $1.4 million worth of consulting services.

In mid-June 2012, Olives called Stone expressing his desire to unwind the business. Shortly before that telephone call, Olives had asked Stone to identify what client work she was expecting, and she responded, listing her current and expected work. Listing those contacts, Olives drafted a 12-month noncompete agreement, offered Stone $125,000, and suggested she hire counsel for the unwinding. On July 3, 2012, Olives’s counsel sent Stone a letter demanding that she cease and desist any breaches of her fiduciary duty owed to Mosaic, and on July 6, 2012, Stone tendered her resignation letter.

After her departure, Stone sought payment of the remaining portion of her 2011 bonus as well as the unpaid mid-year bonus scheduled for July 2012. When Mosaic did not pay, Stone sued Olives and Mosaic, asserting claims for declaratory judgment as to Stone’s interest as a shareholder, breach of contract, unjust enrichment, breach of fiduciary duty, fraudulent inducement, an accounting, and a constructive trust. Following discovery, the case was tried by a jury which found in favor of Stone on her breach of contract claim for the 2012 mid-year bonus, awarding her $245,723.09. The jury found in favor of the defendants on all other claims. Mosaic now appeals, citing as error the trial court’s denial of its motions for a directed verdict and JNOV, as well as the trial court’s refusal to instruct the jury on the enforceability of promises to pay future compensation.

1. Mosaic contends that the alleged promise of a 2012 mid-year bonus was not enforceable because it did not occur at the beginning of Stone’s employment with Mosaic and was therefore a mere gratuity lacking consideration. We disagree, based on the facts before us. As a general matter, it is true that when

one undertakes to perform for another service or labor for a given sum, any amount paid in excess of that sum, not based upon a new consideration, is a mere gratuity. Such a promise, made at the beginning of the employment, is enforceable, though it would not be if made pending the term or after the performance was completed.

But Mosaic’s application of this rule oversimplifies the present factual context, which involved a negotiation between company founders and directors over their compensation package, which negotiation arose at the time one was terminated and subsequently resumed her position for the purpose of coming to terms about compensation. When viewed in the light most favorable to Stone, these facts authorized the jury to find a quid pro quo — that Stone would remain at Mosaic in return for an agreed-upon compensation package — sufficient to establish consideration and an enforceable bonus agreement. Stone specifically testified that she never would have remained at Mosaic had she not understood there to be an agreement at least as to the 65 percent bonus payments, and Olives’s e-mails reflect his agreement with that element of their negotiations, as well as his assurance that Stone would be paid a bonus in July 2012 as discussed. As correctly pointed out by the trial court, this Court has held under analogous facts that an employee’s continued employment in the face of a departure can constitute consideration sufficient to make a mid-term promise of future compensation enforceable. Accordingly, based on the record before us, Mosaic’s argument that the verdict was unauthorized based on a lack of consideration is without merit.

2. Mosaic also contends that any agreement as to bonus payments was too indefinite to be enforceable. Mosaic points to the ongoing disagreement as to the minimum amount of liquidity reserves that Mosaic would maintain, and argues that this resulted in no agreement as to the pool from which the 65 percent bonus would be drawn. But there was evidence showing that the liquidity cushion was a set dollar amount of cash reserves that Mosaic would maintain, not the pool against which bonuses would be drawn. As such, the liquidity cushion might bear on the timing of payments, but not the amount.

This conclusion is supported by e-mails from Olives stating his concern for maintaining a sufficient operating cash buffer and, as to timing, reassuring Stone that she should “rest easy that the Company should have plenty of cash to pay your July bonus if current receivables come in a timely manner.” As recounted by Olives in an e-mail to Stone, “I... have agreed to 65% of margins, and [Mosaic] will pay it out when it has the cash____We’ve talked through all that and ended up at 65%. Yes, agreed, and please remember that I too compromised.” There also was testimony from Olives that these margins would be calculated according to “total revenue less the cost” associated with the project, which could be determined according to the financial records kept for each client account. Therefore, based on the evidence at trial, any disagreement as to the amount of liquidity reserves did not render the bonus agreement too indefinite to be enforced.

Mosaic also argues that there was no agreement as to a method for determining bonus amounts for hypothetical projects that were shared or jointly originated. But there was evidence that Stone was the sole originator of the accounts giving rise to the disputed bonus payment, and that Olives had not materially contributed to those accounts. For example, in an e-mail, Olives conceded that Stone was the only person eligible for a July 2012 bonus. Therefore, any uncertainty as to joint projects did not render unenforceable their agreement as to the July 2012 bonus payment.

3. Mosaic also argues that Stone cannot enforce the bonus agreement because she terminated the negotiations before any agreement was finalized. In light of our preceding analysis as to the agreement on material terms of the bonus structure, and the evidence supporting Stone’s trial testimony that she believed she had an agreement as to the terms of bonus payments and that she would not have continued her employment at Mosaic absent such an agreement, this argument fails. “Because the factfinder in this case found the existence of a contract, the appellate courts are relegated to the position of determining whether or not there was any evidence in the case to support that conclusion.” Although Mosaic disputes that conclusion based on other evidence,

because the evidence conflicted, the trial court properly denied [the defendant’s] motion for a directed verdict on this issue. The jury was not required to accept [the defendant’s] evidence. There was some evidence to support the jury’s verdict, and on this ground we must affirm the judgment entered on that verdict.

4. Last, Mosaic argues that the trial court erred by failing to instruct the jury as follows: “In order to enforce a promise of future compensation, Plaintiff must prove (1) that the promise was made at the beginning of the Plaintiff’s employment and (2) that the promise was for an exact amount or based upon a formula or method for determining the exact amount of the bonus.”

[E]ven if we assume that the requested charge was correct and pertinent, it is not necessarily error to fail to charge it. We must look to the charge as a whole to determine whether the court substantially covered the principles embodied therein or whether it was sufficiently or substantially covered by the general charge. Further, a party cannot successfully complain about the refusal to give a requested charge unless they satisfy their burden of showing that the refusal was both erroneous and harmful.

Here, the trial court’s jury charge included the following instructions:

To constitute a lawful contract, there must be parties able to contract, a consideration for the contract, the agreement of the parties to the terms of the contract, and a lawful subject matter.
A consideration is valid if any person who promised is entitled to a benefit. To constitute consideration, a performance or return promise must be bargained for by the parties to a contract. A performance or returned promise is bargained for if it is sought by one party in exchange for his or her promise and is given by the other party in exchange for that promise. Past consideration alone cannot support the existence of a contract.
... Until both parties have agreed to all of its [sic], there is no contract until the contract is agreed to, a party may withdraw an offer or proposal. . . .
For an oral contract to be sufficiently . . . definite to be enforced, the oral contract must have been expressed in language sufficiently plain and explicit to convey what the parties agreed upon. ... A contract does not exist until the parties agree on all material terms. A contract cannot be enforced if its terms are incomplete, vague, indefinite or uncertain.

Mosaic’s requested charge essentially emphasizes that the terms of a contract must not be vague or uncertain and that a promise of compensation must be based on some valid consideration. As demonstrated by the emphasized language above, these concepts were substantially covered by the instructions given by the trial court, so the court’s failure to give Mosaic’s requested charge does not amount to reversible error.

Decided March 2, 2016.

Ichter, Kresky & Associates, Cary Ichter, W. Daniel Davis, ReidD. Shannon, for appellant.

Robbins Ross Alloy Belinfante Littlefield, Richard L. Robbins, Heather H. Sharp, for appellee.

Judgment affirmed.

Phipps, P. J., and Boggs, J., concur.

       (Punctuation omitted.) Ins. Indus. Consultants v. Alford, 294 Ga. App. 747 (669 SE2d 724) (2008), quoting Gantt v. Bennett, 231 Ga. App. 238, 240 (1) (499 SE2d 75) (1998).

       Stone sought payment of the balance of her 2011 bonus, but the jury declined to award her that portion of the damages. There is evidence that Stone agreed to this revised amount.

       At trial, Stone calculated her 2012 mid-year bonus to be $285,223.

       See Arby’s, Inc. v. Cooper, 265 Ga. 240, 241 (454 SE2d 488) (1995) (“To be enforceable, a promise of future compensation must be made at the beginning of the employment.”).

       (Punctuation omitted; emphasis in original.) BDI Laguna Holdings v. Marsh, 301 Ga. App. 656, 658 (1) (689 SE2d 39) (2009), quoting Mgmt. Search v. Morgan, 136 Ga. App. 651, 653 (1) (222 SE2d 154) (1975).

       See generally Scapa Dryer Fabrics v. Knight, 332 Ga. App. 82, 83-84 (1) (770 SE2d 334) (2015) (“Neither a directed verdict nor a [JNOV] can be granted where there is some evidence to support the verdict. Where evidence is in conflict, the grant of such motions is error. Only when there is no evidence to support the verdict can either a directed verdict or [JNOV] be granted, because the evidence demands a verdict contrary to that returned by the jury.”).

       See, e.g., Hiers v. ChoicePoint Svcs., 270 Ga. App. 128, 129 (1) (606 SE2d 29) (2004) (“continued employment constitutes valid consideration for the commissions that [employer] promised to pay”); Edwards v. Grapefields, Inc., 267 Ga. App. 399, 406 (2) (599 SE2d 489) (2004) (finding “evidence that [employee’s] shares were issued in return for a promise of his continued employment, which would constitute valid consideration”); Mon Ami Intl. v. Gale, 264 Ga. App. 739, 743 (2) (592 SE2d 83) (2003) (“[T]he adequacy of consideration must be tested by the facts and conditions existing at the time the contract was made], and] continued employment constitutes valid consideration])]”) (punctuation omitted). We note that Mosaic also enumerates a closely-related argument that “a promise to pay a bonus in the future is not enforceable under a terminable-at-will employment contract.” Stover v. Candle Corp. of America, 238 Ga. App. 657, 659 (2) (520 SE2d 7) (1999). But the evidence shows that the bonus payments Stone sought were for work she had already performed for Mosaic as of July 2012, after an agreement had been reached as to bonus payouts. “Even in an at-will agreement, the employer is not at liberty to change the agreed rate of pay after the associated work has been performed.” Cox v. Erwin, 246 Ga. App. 439, 440 (2) (541 SE2d 69) (2000).

       See Sims v. Bayside Capital, 327 Ga. App. 47, 50 (1) (755 SE2d 520) (2014) (‘Where there is a conflict in the evidence as to the existence of an oral contract or as to its terms, the matter must be submitted to a jury for resolution.”).

       See Arby’s, Inc., 265 Ga. at 241 (“]T]he promise of future compensation must... be for an exact amount or based upon a [definite] ‘formula or method for determining the exact amount of the bonus.’ ”), citing Christensen v. Roberds of Atlanta, 189 Ga. App. 289, 291-292 (2) (375 SE2d 267) (1988).

       The latest round of e-mails reflects an agreement that this amount would be $50,000.

       (Punctuation omitted.) Masters v. Redwine, 279 Ga. 432 (1) (615 SE2d 118) (2005).

        Underground Festival v. McAfee Eng. Co., 214 Ga. App. 243, 246 (3) (447 SE2d 683) (1994).

       See Arby’s, Inc., 265 Ga. at 241.

        Giles v. Heyward, 315 Ga. App. 409, 412 (4) (726 SE2d 434) (2012).

       (Emphasis supplied.)

       Cf. Hiers, 270 Ga. App. at 129 (1) (“continued employment constitutes valid consideration”); Mon Ami Intl., 264 Ga. App. at 742-743 (2) (addressing the adequacy of consideration for an employment contract).


author: Peterson, Judge.

text:
    A15A2066.
    DAGNE v. SCHROEDER.
    (783 SE2d 426)
   Peterson, Judge.

Emebet Dagne appeals from a jury verdict and judgment arising out of an automobile accident she caused that injured Sue Schroeder and Schroeder’s minor daughter. Dagne contends that the trial court erred by (1) denying her motion for partial summary judgment on the issue of punitive damages, (2) allowing witnesses to offer lay opinions about whether she was intoxicated at the time of the collision, (3) denying her motion for directed verdict and motion for judgment notwithstanding the verdict on the issue of punitive damages, (4) precluding her from introducing evidence of her financial condition, and (5) failing to grant a mistrial after Schroeder mentioned a conviction that the trial court had previously ruled was inadmissible. We affirm because Dagne’s argument regarding the denial of her summary judgment motion is moot; the lay opinion testimony was admissible because the opinions were based on personal observation; she does not challenge the trial court’s conclusions that the jury could award punitive damages based on her erratic driving; the trial court did not abuse its discretion in disallowing Dagne from presenting evidence of her financial condition because it also limited Schroeder’s ability to introduce evidence on the issue; and Dagne failed to preserve the objection upon which she moved for a mistrial.

Construed in the light most favorable to the jury verdict, the evidence shows that on the afternoon of November 11,2011, Schroeder was driving her van home after picking up her daughter from school. Dagne was driving in the opposite direction along the same road. Witnesses observed that Dagne was driving erratically. Bill Maxwell, who was riding in a vehicle with Deirdre Walsh, twice attempted to pass Dagne because she was stopped in the middle of the road. Both times, Dagne quickly accelerated and then came to an abrupt stop in order to prevent Maxwell from passing her. After Maxwell got behind Dagne after his second unsuccessful attempt to pass, Dagne quickly sped away, ran a stop sign, and came to an abrupt stop in the middle of the intersection. Dagne remained in the intersection for a second or two before speeding off.

As Dagne drove down the road, she swerved within her lane and continuously sped up and slowed down. Dagne then shifted to the left, angling her car to oncoming traffic. Schroeder testified that Dagne hesitated, so she believed Dagne was going to wait for her to pass before making the turn. When Schroeder realized that Dagne was not going to stop, Schroeder attempted to avoid a collision by turning her vehicle to the right, but she was still struck by Dagne’s vehicle. The impact of the collision sent Schroeder’s van airborne, and her van tumbled several times after hitting the ground before finally coming to a rest upside down.

Walsh called 911 and reported that a drunk driver had caused an accident, and she and Maxwell then attempted to render aid. Maxwell first checked to see if Dagne was okay. Although Dagne was dazed and did not respond to Maxwell’s questions, Maxwell did not see any visible injuries and so he turned his attention to Schroeder’s van. Schroeder was hanging upside down by her seatbelt, her left leg was twisted at an unusual angle, and she was screaming in pain. Schroeder’s daughter managed to crawl out of the van. Emergency responders were able to free Schroeder and took her and her daughter to the hospital. At some point, Dagne exited her car and was sitting on the grass, but she never attempted to help Schroeder or her daughter.

Schroeder sued Dagne to recover medical expenses that Schroeder and her daughter incurred as a result of the accident and to recover for Schroeder’s pain and suffering. Schroeder also sought punitive damages based on a claim that Dagne was impaired at the time of the accident and that her driving history showed a pattern of reckless and wanton conduct.

At the first phase of the bifurcated trial, Walsh and Maxwell testified that they believed that Dagne was driving while under the influence, although they conceded that they did not know whether she had consumed any drugs or alcohol. Dagne moved for a directed verdict on punitive damages because Walsh’s and Maxwell’s testimony did not establish evidence of Dagne’s impairment. The trial court denied Dagne’s motion, concluding that Walsh’s and Maxwell’s testimony would support an inference that Dagne was impaired. Dagne then called the police officer who responded to the accident, and the police officer testified that he did not observe any signs that Dagne was under the influence of drugs or alcohol. After Dagne rested, she renewed her motion for a directed verdict, again arguing that there was no evidence of impairment to support a punitive damages award. The trial court denied the motion, concluding that evidence of Dagne’s actions raised a jury question as to whether Dagne showed an entire want of care, wilful misconduct, malice, or wantonness. The trial court subsequently charged the jury that it had to determine whether Dagne’s actions met this standard and, thus, whether punitive damages were warranted.

Following the first phase of the bifurcated trial, the jury returned a verdict of $150,000 in compensatory damages and concluded that Dagne was liable for punitive damages. At the second phase of the trial, Schroeder introduced evidence of Dagne’s prior convictions for DUI, speeding, and reckless driving. The jury subsequently awarded Schroeder $100,000 in punitive damages, and it specifically found that Dagne was not under the influence of drugs or alcohol at the time of the collision.

1. Dagne argues that the trial court erred in denying her motion for partial summary judgment on Schroeder’s punitive damages claim because there was no evidence to support the allegation that Dagne was driving under the influence of drugs or alcohol. However, “after verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” Moore v. Moore, 281 Ga. 81, 85 (6) (635 SE2d 107) (2006) (citation and punctuation omitted).

2. Dagne next argues that the trial court erred during the first phase of the trial by allowing Walsh and Maxwell to offer lay opinions that they believed Dagne was driving while impaired, because they admitted that they did not know whether she had consumed any alcohol or drugs. We disagree.

“The admission or exclusion of lay opinion evidence is committed to the sound discretion of the trial court,” and appellate courts will not interfere with such a ruling absent an abuse of discretion. Faulkner v. State, 295 Ga. 321, 324(2) (758 SE2d 817) (2014). OCGA § 24-7-701(a) provides that a lay witness’s testimony in the form of opinion shall be limited to those opinions that are (1) rationally based on the perception of the witness; (2) helpful to a clear understanding of the witness’s testimony or a determination of a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge. Georgia appellate courts have held that a witness may testify, on the basis of personal observation, about whether another person did or did not appear to be intoxicated on a given occasion. See, e.g., Knight v. State, 271 Ga. 557, 562 (6) (521 SE2d 819) (1999); see also Paul S. Milich, Georgia Rules of Evidence § 15:2 at 491, n.17 (2015-2016 ed.) (under section 701(a), a lay witness may express an opinion about another person’s intoxication, so long as opinion is based on personal knowledge and the witness states factual basis for opinion).

Here, Maxwell testified that he told the responding police officer that Dagne had been driving erratically prior to the accident and suggested that the officer perform a toxicology screen of Dagne. Maxwell explained that he made this recommendation to the police officer because he believed Dagne was intoxicated based on her erratic driving, which was consistent with someone who was intoxicated. Prior to Maxwell’s testimony, Dagne stated that she would have no objection to Maxwell testifying as to what he reported to the officer, but would object to him giving any opinion about her impairment because Maxwell did not know whether she had consumed any drugs or alcohol. Because Maxwell’s opinion that Dagne was impaired was helpful to understand his testimony that he recommended to the responding officer that he perform a toxicology screen on Dagne, and because his opinion was based on his personal observations, the trial court did not abuse its discretion in allowing Maxwell’s opinion testimony. See Knight, 271 Ga. at 562 (6).

With respect to Walsh’s testimony, Dagne did not object to the playing of Walsh’s 911 call, in which she reported that a drunk driver caused the collision. Nor did Dagne object when Walsh explained that she believed Dagne was drunk because the way Dagne was driving was “very oblivious and confused.” Dagne’s failure to object to this testimony resulted in a waiver of her challenge to it on appeal. See Ivy Rd. Properties, LLC v. First Citizens Bank & Trust Co., 311 Ga. App. 409, 410 (1) (715 SE2d 809) (2011).

3. Dagne also argues that the trial court erred in denying her motion for a directed verdict on the issue of punitive damages, because there was no admissible evidence that she was impaired. Similarly, Dagne argues that the trial court erred in denying her motion for judgment notwithstanding the verdict, because Schroeder’s punitive damages claim was based solely on the allegation that Dagne was driving under the influence, and the jury rejected this claim when it found that Dagne was not impaired. We discern no error.

We review a trial court’s denial of a motion for a directed verdict or motion for judgment notwithstanding the verdict under the “any evidence” test. Galardi v. Steele-Inman, 266 Ga. App. 515, 516(1) (597 SE2d 571) (2004). When conducting such a review,

[t]he question before this Court... is not whether the verdict and judgment of the trial court were merely authorized, but whether a contrary judgment was demanded. . . . [W]e are required to construe the evidence with every inference and presumption in favor of upholding the verdict, even where the evidence is in conflict. Indeed, so long as there is some evidence to support the jury’s verdict, it must be upheld on appeal.

Turnage v. Kasper, 307 Ga. App. 172, 178-179 (1) (704 SE2d 842) (2010) (footnotes omitted).

On appeal, Dagne argues only that the trial court erred in denying her motion for directed verdict and judgment notwithstanding the verdict on punitive damages because the jury concluded that she was not driving under the influence at the time of the collision. But there were other grounds on which the jury could have awarded punitive damages. Specifically, in denying Dagne’s motions, the trial court ruled that Dagne’s erratic driving raised a jury question as to whether her actions showed wilful misconduct, malice, wantonness, or an entire want of care so as to raise a presumption of conscious indifference to the consequences. See OCGA § 51-12-5.1(b); see also Tookes v. Murray, 297 Ga. App. 765, 768 (2) (678 SE2d 209) (2009) (“[A] jury may award punitive damages even where the clear and convincing evidence only creates an inference of the defendant’s conscious indifference to the consequences of his acts.”) (citation and punctuation omitted).

However, Dagne does not enumerate as error the trial court’s ruling that the evidence could have supported a punitive damages award on these other grounds. “Matters not enumerated as error will not be considered on appeal and are therefore presumed to be binding •and correct.” Jones v. First National Bank of Atlanta, 147 Ga. App. 441, 441 (249 SE2d 154) (1978) (citations and punctuation omitted); see also Adamson v. Sanders, 279 Ga. 187, 188 (611 SE2d 44) (2005) (a trial court’s judgment must stand where an appellant fails to enumerate as error all of the trial court’s conclusions supporting that judgment). Because Dagne fails to address the trial court’s ruling that the jury was authorized to award punitive damages based on her erratic driving, we must affirm the trial court’s denial of her motion for directed verdict and motion for judgment notwithstanding the verdict.

4. Dagne argues that the trial court erred in the second phase of the trial by not allowing her to introduce evidence of her financial condition. We disagree.

If a plaintiff seeks punitive damages, evidence of the defendant’s financial circumstances maybe admissible. See Holland v. Caviness, 292 Ga. 332, 335 (737 SE2d 669) (2013). However,

a trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Miller v. Cole, 289 Ga. App. 471, 473 (657 SE2d 585) (2008) (citation and punctuation omitted); see also OCGA § 24-4-403. “Absent an abuse of discretion, a trial court’s decision regarding whether to admit or exclude evidence will not be disturbed.” Id.

Before conducting the second phase of the trial to determine the amount of punitive damages, the trial court held a charge conference, during which time it discussed whether the court should omit any of the guideline factors outlined in the pattern jury instruction on calculating the amount of punitive damages. See Suggested Pattern Jury Instructions, Vol. I: Civil Cases (2015), § 66.750. Schroeder requested that the trial court omit the factor regarding Dagne’s financial condition because, among other things, if Dagne was allowed to present evidence of her financial condition, then Schroeder should be allowed to present evidence that one of Dagne’s assets would be a claim against her insurer for failing to settle the case for the limits of Dagne’s policy within the time demanded by Schroeder. Dagne argued that only she should be allowed to present evidence regarding her financial condition, and that the jury should not consider her insurance policy because there was no evidence that the insurer would pay or owe more than the policy limits.

The trial court decided to exclude evidence of Dagne’s insurance policy because it was substantially prejudicial, and, out of fairness to Schroeder, also prevented Dagne from introducing evidence of her financial condition.

Dagne has not shown that the trial court’s ruling was an abuse of discretion. While evidence of a defendant’s financial condition may be admissible in a punitive damages case, see Holland, 292 Ga. at 335, Dagne cites no authority, and we have found none, mandating such admission in every punitive damages case. The trial court’s decision to exclude Dagne’s evidence was consistent with its decision to preclude Schroeder from introducing evidence on Dagne’s financial condition. As found by the trial court, it would be unfair to allow Dagne to present evidence on an issue while denying Schroeder the same opportunity. Cf. United States v. Frazier, 387 F. 3d 1244, 1270 (11th Cir. 2004) (“It is an abuse of discretion to exclude the otherwise admissible opinion of a party’s expert on a critical issue, while allowing the opinion of his adversary’s expert on the same issue.”) (citation and punctuation omitted). Thus, we find no abuse of discretion in excluding Dagne’s evidence.

5. In her final enumeration of error, Dagne argues that the trial court erred at the second phase of the trial by denying her motion for mistrial after Schroeder asked Dagne about her conviction for driving on a suspended license, which the trial court previously held was inadmissible. The transcript reveals that Dagne objected to Schroeder’s question, Schroeder withdrew it, and the trial court instructed the jury to disregard the question. Dagne did not move for a mistrial at this time; rather, she waited until the end of closing arguments to do so.

It is well settled that a motion for mistrial must be made contemporaneously with the objectionable testimony. Merely objecting to testimony at the time it is offered does not preserve the right to later move for a mistrial based on such testimony.

Decided March 2, 2016.

Cruser & Mitchell, J. Robb Cruser, R. Russell Grant II, for appellant.

Ralph E. Hughes, Mitchell E. McGough, for appellee.

Tuten v. State, 242 Ga. App. 223, 225 (5) (529 SE2d 221) (2000) (footnotes omitted); see also McConnell v. Akins, 262 Ga. App. 892, 892 (1) (586 SE2d 688) (2003) (“A motion for mistrial must be made at the time the alleged harmful error is committed”) (citation omitted). Because Dagne did not timely move for a mistrial, she waived the issue.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       Schroeder submitted evidence that Dagne had two separate DUI charges, but adjudication was withheld in one case pending completion of twelve months probation, and Dagne’s probation was terminated before expiration of the twelve months. Dagne testified that her probation was terminated early when she successfully completed the terms of probation.

       OCGA § 24-7-701(a) replaced former OCGA § 24-9-65. Jordan v. State, 293 Ga. 619, 621 (2) (a), n.2 (748 SE2d 876) (2013).

       Schroeder’s amended complaint alleged that punitive damages were also appropriate in light of Dagne’s history of reckless driving. See Brooks v. Gray, 262 Ga. App. 232, 233 (1) (585 SE2d 188) (2003) (in automobile collision cases, punitive damages are allowed when the collision resulted from a pattern or policy of dangerous driving, such as excessive speeding or driving while intoxicated). While the trial court’s pretrial order specified that Schroeder’s request for punitive damages was limited to her claim that Dagne was impaired, in denying Dagne’s renewed motion for directed verdict, the trial court concluded that, even absent evidence of impairment, the jury could consider Dagne’s conduct in determining whether punitive damages were appropriate. Dagne does not challenge the trial court’s failure to enforce (or implicit modification of) the pretrial order, and has therefore waived the issue. See Gamlins, Solicitors & Notaries v. A.E. Roberts & Assoc., Inc., 254 Ga. App. 763, 764 (1) (564 SE2d 29) (2002) (“Matters not enumerated as error will not be considered on appeal.”); see also Fields Bros. Gen. Contractors v. Ruecksties, 288 Ga. App. 674, 678 (2) (655 SE2d 282) (2007) (while a pretrial order generally controls the subsequent course of litigation, a trial court’s action in creating, enforcing, and modifying a pretrial order will not be disturbed on appeal absent an abuse of discretion).