text:
    A12A0272, A12A0273.
    IN THE INTEREST OF K. L. M. et al., children (two cases).
    (729 SE2d 452)
   Miller, Judge.

Following a hearing, the juvenile court terminated the mother’s parental rights with respect to her children K. L. M. and K. M. S. We granted the mother’s application for discretionary review, and she appeals the juvenile court’s order. On appeal, the mother contends that the juvenile court failed to include sufficient findings of fact and conclusions of law to support its decisions, and that the evidence was insufficient to support termination of her parental rights. For the reasons that follow, we vacate the judgments below and remand these cases for entry of properly supported orders based upon the evidence in the case.

In considering the mother’s appeal, we view the evidence in the light most favorable to the juvenile court’s disposition and determine whether any rational trier of fact could have found by clear and convincing evidence that the mother’s right to custody should have been terminated. We neither weigh the evidence nor determine the credibility of any witnesses, but instead defer to the juvenile court’s findings of fact.

(Citation omitted.) In the Interest of A. B., 311 Ga. App. 629, 629 (716 SE2d 755) (2011).

So viewed, the evidence shows that in approximately 2002, the mother and K. L. M. and K. M. S.’s father, who was a registered sex offender, began living together in Texas. The mother gave birth to K. L. M. in January 2006 and to K. M. S. in February 2007. At some point, the father developed a romantic relationship with another woman, who moved in with the family. During the time that the mother, father, and the father’s girlfriend resided together, the mother had a third child, H. H., with the father. Upon giving birth to EL El., the mother falsely listed the father’s girlfriend as the “mother” on El. H.’s birth certificate due to the girlfriend’s threats of physical violence.

Based upon reports of domestic violence in the residence, the state of Texas initiated proceedings in 2009 to remove the mother’s children from her custody. To avoid the Texas authorities, the mother fled Texas and moved to Georgia in March 2009. Upon arriving in Georgia, the mother, K. L. M., and K. M. S. began residing with the mother’s sister. The mother’s third child, H. H., was left in the custody of the girlfriend.

Shortly thereafter, the Berrien County Department of Family and Children Services (the “Department”) launched an investigation upon receiving a report that the mother fled Texas. Due to sanitation issues, medical neglect, and inadequate housing and clothing, the children were taken into the Department’s care. The juvenile court subsequently found the children to be deprived and placed legal custody of the children in the Department.

The juvenile court issued reunification plans that required the mother to, among other things, secure suitable housing with the assistance of the Department, maintain employment, and end her relationship with the father due to his status as a registered sex offender. The Department found the mother a suitable home and requested that she pay the deposit for utilities since she had steady employment. The mother refused to pay the deposit, claiming that she could not afford it. The Department discovered, however, that the mother had been sending money to the father during this time. The mother continued to reside with her sister and her family, sleeping in the living room.

Although the mother denied having contact with the father, the Department presented evidence that the mother maintained a relationship with him in contravention of the reunification plan. A licensed professional counselor attempted to explain to the mother that the father had manipulated her, but the mother defended him and insisted that their relationship was not abusive. Given these circumstances, the Department initiated a non-reunification plan and filed a petition to terminate the mother’s parental rights.

At the hearing on the petition to terminate parental rights, the mother admitted that she had not attempted to obtain custody of H. H. from the father’s girlfriend. The Department reported that the mother’s living situation with her sister — where the children had lived prior to their removal to foster care — was not suitable for the children because the house was too small for the number of people living in it, and because it had a “really bad odor” emanating from outside the house. It was also revealed that the mother had not paid child support since the children were removed. The Department opined that the children would be deprived if returned to the mother. When the juvenile court asked the mother to explain why it should believe that she had in fact ended her relationship with the father, the mother merely responded, ‘You know what, I don’t know.”

The Department also presented evidence that, although both children had very significant needs, the children’s health and well-being had improved dramatically since the children were placed in foster care. Both the guardian ad litem and the court-appointed special advocate (“CASA”) recommended that the juvenile court terminate the parental rights of the mother. The guardian ad litem cited the mother’s refusal to end her relationship with the father and her failure to obtain adequate housing. The CASA stated that the children needed permanency and routine.

In its orders terminating the mother’s parental rights, the juvenile court took judicial notice of its earlier orders and proceedings. The juvenile court found that clear and convincing evidence demonstrated that the children were deprived; that the cause of the deprivation was lack of proper parental care or control; that the deprivation was likely to continue and was likely to cause serious physical, mental, emotional, and moral harm to the children; and that the termination of the mother’s parental rights was in the children’s best interest. In support of its determination, the juvenile court specifically found that the mother continued to maintain contact with the father, whom she knew to be a registered sex offender; that the mother sent money to the father; that she had not attempted to obtain custody of H. H.; that the mother was unable to manage a home with children and had not reached a point to be a parent; and that the guardian ad litem and the CASA had recommended termination of the mother’s parental rights.

The mother contends that the juvenile court’s termination order failed to set forth sufficient findings of fact to support its ultimate conclusion, and that the evidence was insufficient to support termination of her parental rights.

A juvenile court’s termination of parental rights is a two-step process. The first step requires a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are satisfied, the court must then determine whether termination of parental rights is in the child’s best interest, considering physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home.

(Citations and punctuation omitted.) In the Interest of S. W. J. P. D., 275 Ga. App. 272, 272-273 (620 SE2d 497) (2005); see also OCGA § 15-11-94 (a), (b) (4) (A) (i)-(iv).

(a) Deprivation. The mother contends that, while she is bound by prior unappealed orders finding the children deprived, the juvenile court erred by failing to make a determination of whether the children were deprived at the time of the termination order.

[TJhis Court has repeatedly held that unappealed deprivation orders bind the parents insofar as they establish that the existence of certain conditions (at the times those orders were entered) constituted a clear and convincing showing that the child was deprived as defined under the law; but only upon a further showing by the [Department that the conditions upon which this finding was based still exist at the time of the hearing on the termination petition will this criterion be met.

(Citations, punctuation and emphasis omitted.) In the Interest of P. D. W., 296 Ga. App. 189, 192-193 (1) (a) (674 SE2d 338) (2009).

Here, the juvenile court based its earlier findings of deprivation upon evidence that the father, a registered sex offender, was living near the mother, the mother was a flight risk, and the children were living in an unsanitary and unhealthy environment. The evidence shows that these conditions had not changed at the time of the termination hearing. Significantly, the mother continued to reside in the same unsanitary house that the Department found unsuitable for the children. Additionally, despite her denials to the contrary, there was evidence that the mother continued to have a relationship with the father. Since the evidence showed that the conditions upon which the juvenile court’s deprivation findings were based still existed at the time of the termination hearing, and because the mother did not appeal the initial deprivation orders, the mother was bound by these findings and may not challenge the juvenile court’s finding of deprivation. See, e.g., In the Interest of K. C. W., 297 Ga. App. 714, 718 (2) (a) (678 SE2d 343) (2009); In the Interest of R. N. H., 286 Ga. App. 737, 740 (1) (a) (650 SE2d 397) (2007). Moreover, the mother’s failure to obtain suitable housing or cease her relationship with the father, as required by the case plan, and her failure to pay child support authorized a finding the children were deprived. Cf. In the Interest of J. D., 280 Ga. App. 861, 863 (1) (a) (635 SE2d 226) (2006) (mother’s failure to make significant progress towards compliance with reunification plan supported finding that children were deprived).

(b) Lack of parental care or control as the cause of the deprivation. The mother did not appeal the juvenile court’s prior orders finding that the children were deprived due to a lack of proper parental care and control. Thus, she is bound by those findings. See In the Interest of B. M., 298 Ga. App. 100, 102 (1) (b) (679 SE2d 113) (2009) (“The failure to appeal the deprivation order renders the juvenile court’s determination on this second factor binding[.]”) (citations and punctuation omitted); In the Interest of M. C., 287 Ga. App. 766, 768 (1) (b) (653 SE2d 120) (2007) (same).

In any event, the evidence presented supports the juvenile court’s finding that the deprivation was caused by a lack of proper parental care. S ee In the Interest of P. D. W., supra, 296 Ga. App. at 193 (1) (b) (where the children are in the Department’s custody, the relevant inquiry is whether the children would return to a state of deprivation if returned to the parent due to the parent’s lack of proper parental care or control). The evidence showing that the mother failed to sever contact with the father, that she defended the father and insisted her relationship with him was not abusive despite evidence to the contrary, and that she diverted resources to the father instead of paying child support or securing housing supported a finding that the children would return to a state of deprivation because of the mother’s lack of proper parental care or control. See In the Interest of P. D. W., supra, 296 Ga. App. at 194 (1) (b) (mother’s failure to obtain suitable housing, complete counseling, or pay child support supported finding that the mother lacked parental care that was the cause of children’s deprivation); In the Interest of C. H., 305 Ga. App. 549, 560 (2) (b) (700 SE2d 203) (2010) (evidence of mother’s refusal to cease contact with abusive partner and failure to pay child support showed her inability to provide a suitable, safe house for her children and supported juvenile court’s finding that lack of parental care or control caused the deprivation).

(c) Cause of deprivation was likely to continue. The above evidence also shows that the deprivation was likely to continue. “Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue.” (Citation and punctuation omitted.) In the Interest of M. M., 276 Ga. App. 211, 215 (622 SE2d 892) (2005). Although the mother received counseling for the domestic violence, she failed to comply with the reunification plan by continuing to maintain contact with the father, a registered sex offender. Although the mother stated that she had ended her relationship with the father, she could not explain why the juvenile court should believe her. This evidence, coupled with the evidence of past deprivation, authorized the juvenile court’s finding that the deprivation of K. L. M. and K. M. S. would likely continue should the children be returned to the mother’s custody. Cf. In the Interest ofN. L., 260 Ga. App. 830, 834-835 (581 SE2d 643) (2003) (evidence that the mother continued to have a relationship with the abusive individual, failed to secure a home, and had taken no serious steps to secure one provided sufficient evidence that the mother would not change her course of behavior).

(d) Likelihood of harm. The juvenile court’s next consideration is “whether the child would be harmed if returned to the parent’s care and control, associated environment, and state of deprivation.” (Punctuation omitted.) In the Interest of P. D. W., supra, 296 Ga. App. at 195 (1) (d).

When a court assesses whether a child now in foster care is likely to suffer serious harm as a result of continued deprivation, ... the court must consider not only the likelihood of harm if the child remains indefinitely in foster care, but also the likelihood of harm if the child returns to the custody of his parent, notwithstanding that the deprivation persists.

(Citations, punctuation and footnote omitted.) In the Interest of C. L., 315 Ga. App. 607, 611-612 (1) (b) (727 SE2d 163) (2012). However,

an order terminating parental rights must contain explicit findings supporting the conclusions that by reason of the deprivation the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm. A dry recitation that certain legal requirements have been met is insufficient to satisfy the requirements of the law. The trial judge is to ascertain the facts and to state not only the end result of that inquiry but the process by which it was reached.

(Citations and punctuation omitted.) In the Interest of K. J., 226 Ga. App. 303, 307 (2) (b) (486 SE2d 899) (1997); see also In the Interest of D. T. A., 312 Ga. App. 26, 33 (1) (d) (717 SE2d 536) (2011).

Here, in summary statements, the juvenile court found that the “continued deprivation of the child[ren] is likely to cause serious physical, mental, emotional, or moral harm to the child[ren].” The orders did not state any specific facts that led the juvenile court to conclude that there was a likelihood of serious harm from continued deprivation. Cf. In the Interest of D. T. A., supra, 312 Ga. App. at 33 (1) (d). Significantly, although the juvenile court made findings as to the mother’s unfitness and conduct, it made no findings as to the children’s relationship with the mother, their status in foster care, their need for permanency, or the likelihood that the children would be harmed if returned to their mother. “Without more specific factual findings on the issue of the likelihood of serious harm from continued deprivation, we have no basis to evaluate whether the juvenile court properly determined that clear and convincing evidence supported the court’s conclusion on that issue.” (Citations and punctuation omitted.) Id. at 33 (1) (d) (general findings of mother’s unfitness and conduct did not automatically support a finding that continued deprivation will harm the children); see also In the Interest of K. J., supra, 226 Ga. App. at 307-308 (2) (b), n. 1 (although father’s failure to meet reunification case plan, his failure to provide a stable residence, and his incarceration supported finding of deprivation, the juvenile court did not specify any facts to support its summary statement concerning the likelihood of serious harm to the child). Accordingly, we vacate the judgment of the juvenile court and remand the case for the juvenile court to make appropriate findings of fact and conclusions of law addressing this issue. See In the Interest of D. T. A., supra, 312 Ga. App. at 33-34 (1) (d) (remanding for the juvenile court to make specific factual findings to support its conclusion that continued deprivation of the children was likely to cause serious harm).

Decided June 15, 2012.

Bennett & Connell, Matthew B. Bennett, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Mixon & Mixon, Warren L. Mixon, for appellee.

Judgment vacated and case remanded with direction.

Mikell, P. J., and Blackwell, J., concur.

       The parental rights of the father also were terminated, but that is not an issue in this appeal.

       H. H. was not included in the deprivation petition.

       These deprivation orders were not appealed.

       While the mother was never ordered to pay child support, she had a statutory duty to support her children in foster care even absent a court order. See In the Interest of R. W., 248 Ga. App. 522, 525 (2) (546 SE2d 882) (2001); In the Interest of P. D. W., 296 Ga. App. 189, 194 (1) (b) (674 SE2d 338) (2009) (“Georgia law requires a parent to financially support his or her child while the child is in foster care, even in the absence of a court order and even if unable to earn income.”) (citation and punctuation omitted).

       To the extent the mother argues that the juvenile court relied upon hearsay evidence to conclude that the deprivation would continue, her claim is without merit. Here, the foster mother testified that K. L. M. had described being sexually abused by her father and others. While the foster mother’s testimony was inadmissible because there is no evidence showing that K. L. M. was available to testify at the evidentiary hearing, see In the Interest of A. T., 309 Ga. App. 822, 825-826 (1) (711 SE2d 382) (2011) (concluding that under Child Hearsay Statute, OCGA § 24-3-16, reports of sexual abuse by a child under the age of 14 years is admissible in evidence by the testimony of the person to whom the report was made if the child was “available to physically appear” at the hearing), the juvenile court’s order did not discuss the foster mother’s testimony about K. L. M.’s reports of sexual abuse, and there is no evidence showing that juvenile court otherwise relied upon these hearsay statements.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A12A0343.
    ANGEL BUSINESS CATALYSTS, LLC et al. v. BANK OF THE OZARKS.
    (728 SE2d 854)
   Miller, Judge.

Bank of the Ozarks (the “Bank”), as successor to the original lender, pursued an action to recover the outstanding balance on a promissory note guaranteed by Charles Merrill III, Lee D. Gaskins III, and Eric Fitchner (the “Guarantors”). The Bank moved for summary judgment, which the trial court granted. On appeal, the Guarantors contend that the trial court erred in granting the Bank’s motion for summary judgment because the Bank failed to show that a supporting affidavit and the attached documents were admissible as business records, and that the attached documents did not establish the amounts they owed. For the reasons set forth below, we affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citation and punctuation omitted) Kensington Partners v. Beal Bank Nevada, 311 Ga. App. 196 (715 SE2d 491) (2011).

So viewed, the evidence shows that on October 4, 2006, Angel Business Catalysts executed a promissory note in favor of Unity National Bank (“Unity”), in the principal sum of $440,943. The Guarantors executed individual guarantees of the note. In March 2010, after Angel Business Catalysts failed to meet its repayment obligations under the note, Unity filed suit against Angel Business Catalysts and the Guarantors to recover the outstanding balance on the note. Unity was subsequently closed, and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver for Unity.

Through a purchase agreement, FDIC assigned its interest in the note, the individual guarantees, and other related loan agreements to the Bank. The Bank was subsequently substituted as the party plaintiff. Thereafter, the Bank moved for summary judgment. In support of its summary judgment motion, the Bank submitted the affidavit of its special assets manager, which set forth the parties’ contracts, debt obligations, and amounts due. Following a hearing, the trial court granted the Bank’s motion.

1. The Guarantors contend that the trial court erred in granting the Bank’s motion for summary judgment because the Bank failed to show that the affidavit and the attached documents were admissible as business records. We disagree.

Creating an exception to the hearsay rule, the Business Records Act provides:

Any writing or record . . . made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.

(Punctuation omitted.) OCGA § 24-3-14 (b).

However, before such a writing or record is admissible, a foundation must be laid through the testimony of a witness who is familiar with the method of keeping records and who can testify thereto and to facts which show that the entry was made in the regular course of a business at the time of the event or within a reasonable time thereafter.

(Footnote omitted.) Ishak v. First Flag Bank, 283 Ga. App. 517, 519 (642 SE2d 143) (2007). “Atrial court’s decision to admit evidence as an exception to the hearsay rule will not be disturbed absent an abuse of discretion.” (Footnote omitted.) Id.

Here, the Bank’s special assets manager, who previously held the same position for Unity, averred that he was the custodian of records for the Bank; that the business records relating to the note were transferred and delivered to the Bank from the FDIC as the receiver for Unity; that these documents included the original note and individual guarantees; that the records were obtained in the regular course of business; and that the Bank relied upon information provided by the FDIC regarding the payment history of the note. Although the Guarantors claimed that any documents transferred to the Bank were inadmissible since the special assets manager failed to state that he had personal knowledge as to how the documents were prepared and maintained by Unity, “where routine, factual documents made by one business are transmitted and delivered to a second business and there entered in the regular course of business of the receiving business, such documents are admissible under OCGA § 24-3-14 (b).” (Punctuation and footnote omitted.) Boyd v. Calvary Portfolio Svcs., 285 Ga. App. 390, 391 (1) (646 SE2d 496) (2007). Interpreting and applying OCGA § 24-3-14 (b) liberally, we hold that the Bank established that the affidavit and attached exhibits were admissible as business records. See id. at 391-392 (1) (business documents attached to affidavit, which stated that the business acquired documents through purchase in regular course of its business, were admissible); Walter R. Thomas Assoc. v. Media Dynamite, 284 Ga. App. 413, 416 (1) (a) (643 SE2d 883) (2007) (invoices sent to company can be considered the company’s business record if kept in the ordinary course of business, notwithstanding absence of testimony from a representative who prepared the invoice, since the company president’s testimony was sufficient to lay foundation). Consequently, the trial court did not abuse its discretion in admitting these documents pursuant to the Business Records Act.

2. The Guarantors next contend that the documents attached to the affidavit did not establish the debts owed by each individual. Their contention is without merit.

By using an affidavit to establish the balance due on an agreement, the Bank was “required to attach to the affidavit copies of the records relied upon and referred to therein that were pertinent to [the Guarantors’] debt.” (Punctuation, footnote and emphasis omitted.) Melman v. FIA Card Svcs., 312 Ga. App. 270, 272-273 (2) (718 SE2d 107) (2011).

Here, the special assets manager’s affidavit referred to payoff statements listing the total amount owed by each of the Guarantors. These payoff statements, which were attached as exhibits to the affidavit, qualified as business records since the special assets manager testified that he had personal knowledge that the statements were made in the regular course of the Bank’s business. Cf. Ishak, supra, 283 Ga. App. at 519 (loan history report admissible as a business record where bank president averred that, based upon his personal knowledge, the report was maintained in the ordinary course of business); Wickes Lumber v. Energy Efficient Homes, 157 Ga. App. 303, 303 (1) (277 SE2d 298) (1981) (summary account statement was admissible where company’s accounts receivable clerk identified it as a business record).

Decided June 15, 2012.

Thomerson, Spears & Robl, Michael D. Robl, Erin A. Lerner, for appellants.

[Since] the [payoff statements] conform [ed] to the provisions of the [Business Records Act], they themselves stand as a witness of the correctness of the account and ma[d] e a prima facie case which shift [ed] the burden of proof to the defendant debtor to show the items contained in the records, or some of them, [were] not correct.

(Punctuation and footnote omitted.) Melman, supra, 312 Ga. App. at 273-274 (2); cf. Kensington, supra, 311 Ga. App. at 198-199 (3) (affidavits which provided that bank received loan and related documents, including guaranties, from FDIC in normal course of business, and which attached as an exhibit the loan payment history, were sufficient to set forth debt and interest due).

Once the Bank made its prima facie case of its entitlement to recover against the Guarantors, the burden then shifted to the Guarantors to “come forward with rebuttal evidence. To do so, the [Guarantors] must set forth specific facts showing the existence of a genuine issue of disputed fact.” (Citations and punctuation omitted.) Dawson Pointe, LLC v. SunTrust Bank, 312 Ga. App. 338 (718 SE2d 570) (2011). The Guarantors, who admitted guaranteeing a certain amount, presented no evidence that the items contained in the payoff statement were incorrect, or that there was a genuine issue to be tried. Since the Guarantors failed to come forward with evidence to create a genuine issue of material fact as to the amount of debts owed, the trial court properly granted summary judgment to the Bank. Cf. Melman, supra, 312 Ga. App. at 273-274 (2) (summary judgment properly awarded to creditor when debtor failed to introduce evidence rebutting creditor’s affidavit and an attached business record establishing debt owed); Kensington, supra, 311 Ga. App. at 199 (3) (summary judgment properly awarded to creditor where debtor presented no evidence contradicting affidavits and business records that established debt owed); Gerben v. Beneficial Ga., 283 Ga. App. 740, 742-743 (642 SE2d 405) (2007) (affidavit and documents named in affidavit and included in record were sufficient evidence to support creditor’s motion for summary judgment).

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

Taylor, English & Duma, John J. Richard, Amy Woo Weber, for appellee.

       The complaint also named as a defendant Angel Business Catalysts, LLC, which had executed the underlying note. The Bank received a default judgment against Angel Business Catalysts. The Guarantors do not challenge the entry of the default judgment against Angel Business Catalysts.

       Contrary to the Guarantors’ claim, this Court’s decision in Arrow Financial Svcs. v. Wright, 311 Ga. App. 319 (715 SE2d 725) (2011), does not squarely support their argument that the Bank’s affidavit was inadmissible since the affiant did not state that he had personal knowledge of the manner in which Unity’s documents were created. In Arrow, the trial court found that the witness did not have the requisite personal knowledge to authorize admission of documents sent from the original lender to the assignee regarding the debt’s origins. Arrow,
        supra, 311 Ga. App. at 319-320. Although the assignee appealed the trial court’s ruling, this Court did not reach the issue of whether the trial court erred by excluding the documents as business records. Id. at 322 (1).

       “[T]he General Assembly has instructed that the Business Records Act ‘shall be liberally interpreted and applied.’ ” (Punctuation and footnote omitted.) Ishak, supra, 283 Ga. App. at 519; see also OCGA§ 24-3-Í4 (d).


author: Adams, Judge. MCFADDEN, Judge,

text:
    A12A0354.
    WILLIS v. THE STATE.
    (728 SE2d 857)
   Adams, Judge.

Early Willis, Sr., appeals the trial court’s denial of his motion for new trial following his conviction by a jury of three counts of aggravated assault, three counts of possession of a firearm during the commission of a crime, and two counts of possession of a firearm by a convicted felon. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence at trial showed that on September 27, 2008, Early Willis began firing a shotgun at his grandnephew, Jacoby Jackson, in front of a house on Pearl Drive in East Macon. Jackson began running, and Willis followed in his truck, with his brother, Jerry, riding in the passenger seat. Willis stopped in front of a store and shot at Jackson again across Jeffersonville Road, a four-lane road in Bibb County. Apassing motorist saw Willis shooting and another man running away on foot, holding his side. Willis got back in his truck and drove to another nearby store. The motorist followed while calling 911 on his cell phone to report the incident.

At the store, Willis parked by another car, got out and began drinking what appeared to be moonshine, while his brother ran into the woods. As the sound of police sirens grew closer, Willis also ran into the woods. At some point, the motorist removed Willis’s keys from his truck. Willis returned, demanding his keys (which the motorist kept hidden), and retrieved the shotgun from the truck. At that point, the police arrived, and Willis again ran into the woods. Officers discovered him a short time later lying in the woods near a shotgun and placed him into custody. Police later discovered Willis’s fingerprint on the shotgun. One of the arresting officers testified that Willis smelled like he had been drinking. At trial, both the motorist and another witness identified Willis as the man who shot at Jackson at the store.

After Willis was released on bond after this incident, he went to the Jones County Sheriff’s Department on October 2, 2008 at the request of Investigator Calvin Pitts, who had told Willis’s bondsman that he needed to talk to Willis about the shotgun seized at the time of Willis’s arrest. The gun previously had been reported as stolen in a Jones County burglary. When Willis arrived, Pitts and another officer, Kenny Gleaton, took him to an interview room, hut Pitts testified that Willis was not under arrest and in fact, Willis left immediately after he finished talking with Pitts. During their conversation, Willis told the officers that he had fired his shotgun at the house on Pearl Drive and again toward a tree at the store on September 27, 2008 because he was mad that Jackson had stolen his cell phone.

Subsequently, on April 30,2009, Jackson’s mother, Regina Smith, went to her cousin’s house to check on a car the cousin was repairing. Willis was also there, and words were exchanged between the two after Willis accused Regina of “snitching” in connection with Jackson’s shooting. Regina walked away and began to call 911. Willis then charged at Regina, and her husband, Antonio Smith, intervened saying that Willis had already shot his son and he would not let him hurt his wife. Antonio and Willis began to fight, while Regina got into her car and began to drive away because she was frightened. After others had broken up the fight, Willis went to his car and got a handgun. When Antonio saw the handgun, he began to back off, but Willis began shooting at Antonio as he ran away, striking him in the head. Regina continued to drive away as her husband ran after her. When she later stopped to let her husband in the car, she stepped outside the car, and Willis began to shoot again. Regina jumped back in her car and drove to get help for Antonio. Willis and his wife followed them in his truck until the police intercepted them. The officers placed Willis under arrest and seized a gun from under the truck seat, where Willis told them they would find it.

The defense presented a number of witnesses who testified that Antonio Smith had started the fight on April 30, 2009, but each of them, including Willis’s wife, testified that Willis shot at Antonio after the fight had stopped and when Antonio was running away.

Willis also testified and stated that it was his brother who shot Jackson on September 27, 2008, and his brother threw the shotgun down near where the police found Willis. Although Willis admitted telling Pitts that he had shot the gun that day, he testified that he was just telling the officer what he wanted to hear and that his statement was a lie. With regard to the shooting on April 30, 2009, Willis said that he got the gun after others had broken up the fight and when Antonio followed him to the truck and indicated that he was not through with him. When Willis got the gun, Antonio ran around the truck and Willis followed and “ran him in between the car[s].” He said that Antonio was injured when he fell and hit a tire stem. Willis said on direct examination that he emptied the gun into the ground at that point, but on cross-examination, he first said that he shot the gun into the air and then said that he shot into the ground. When presented with this contradiction, he stated that he shot the first shot in the air and the remaining three into the ground. But Willis said that he never shot Antonio and never shot at the Smiths’ car.

1. Willis asserts that this evidence was insufficient to support any of his convictions. In an appeal from a criminal conviction, this Court must

view the evidence in the light most favorable to the verdict [,] and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

Willis asserts that the State failed to prove beyond a reasonable doubt that he shot at Jackson because he contends that the witnesses mistakenly identified him as the shooter, instead of his brother. Although Willis testified that his brother was the shooter, two witnesses, one who had never seen Willis before and one who had known him all his life, each identified Willis as the one who shot at Jackson at the store that day. Additionally, Jackson told police the day of the incident that Willis had fired the shotgun at him at the house and later at the store, and Willis admitted to the Jones County officers that he had fired the shotgun in both locations. We find, therefore, that the evidence was sufficient to support Willis’s conviction of the charges alleged in connection with the incident on September 27, 2008. See Armour v. State, 290 Ga. 553, 554 (1) (722 SE2d 751) (2012). See also Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009) (“ It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ”) (citation omitted).

Willis also asserts that the State failed to prove that he was guilty beyond a reasonable doubt of the charges filed in connection with the April 30, 2009 incident because he contends that he was acting in self-defense in firing his gun at Antonio Smith. He notes that his witnesses testified that Antonio began the fight and had to be pulled off him at least twice.

“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force ” OCGA § 16-3-21 (a). But “[¡justification cannot be based on an assault which has ended____” (Citation omitted.) Cloud v. State, 290 Ga. 193, 196 (2) (719 SE2d 477) (2011) (“mere fact that assailants are departing and could, theoretically, return and continue an assault does not mean that the person asserting justification is in imminent danger. [Cit.]”). Here, all the witnesses, even Willis himself, testified that the fight had ended at the time he got his gun. And it is undisputed that when Antonio saw the gun, he ran away and Willis chased after him shooting. Even if Antonio continued to mouth off after the fight ended, as Willis testified, no evidence exists that Willis was in any imminent danger at the time he got the gun and shot at Antonio. Thus, the evidence failed to support his claim of justification or self-defense. See id.; Muckle v. State, 307 Ga. App. 634, 637 (1) (a) (705 SE2d 721) (2011) (the continued use of force after the “imminent danger justifying self-defense has passed” does not qualify as self-defense) (citation and punctuation omitted). Rather, the evidence established beyond a reasonable doubt that Willis was guilty of aggravated assault against Antonio Smith and of the related possession charges.

2. Willis further argues that the trial court erred in excluding evidence that Antonio Smith had, in the past, attacked his wife, Regina Smith. He asserts that this evidence was relevant to his defense of justification.

Evidence of a victim’s specific acts of violence against third parties is admissible when a defendant claims justification and makes a prima facie showing thereof, follows procedural requirements, and establishes the existence of the prior violent acts by competent evidence. To make a prima facie showing of justification so as to allow evidence of violent acts by the victim against third parties, the defendant must show that the victim was the aggressor, the victim assaulted the defendant, and the defendant was honestly trying to defend himself.

(Citations and punctuation omitted.) Cloud v. State, 290 Ga. at 195 (2). As we held in Division 1, however, the evidence did not support Willis’s claim of self-defense. Thus, even though he presented evidence that Antonio was the aggressor and threw the first punch in their fight, he failed to establish that he was honestly trying to defend himself when he shot Antonio after the fight ended and when Antonio was running away. Because he failed to make the requisite prima facie showing, the trial court did not abuse its discretion in denying his request to admit evidence of Antonio’s prior actions involving his wife. Id. See also Collier v. State, 288 Ga. 756, 757 (2) (707 SE2d 102) (2011).

3. Willis also contends that the trial court erred in denying his motion to sever the charges arising from the incident involving Jackson from the charges relating to the incident involving the Smiths.

When two or more crimes of the same general nature are committed against different persons, at different times and places, and are charged in separate counts of an indictment, severance is mandatory upon the defendant’s motion if the crimes are joined solely because they are of the same or similar character. If the offenses are not joined solely because they are of the same or similar character, and evidence of one charged offense would be admissible as a similar transaction during trial on another charged offense, the trial court is vested with discretion in deciding whether to grant a motion to sever. In making this decision, the court must consider the number of offenses charged, the complexity of the charges, and the complexity of the evidence and determine whether the jury will be able to fairly and intelligently parse the evidence and apply the law with regard to each charge.

(Citations omitted; emphasis in original.) Stepho v. State, 312 Ga. App. 495, 500 (3) (718 SE2d 852) (2011). Therefore, “[w]hen in the sound discretion of the trial court, the number of offenses charged and the complexity of the evidence do not reasonably impinge upon a fair determination of the defendant’s guilt or innocence as to each offense charged, a severance need not be granted.” (Citation and punctuation omitted.) Machiavello v. State, 308 Ga. App. 772, 774 (2) (709 SE2d 28) (2011).

Although the crimes in this case occurred at different times and different places and involved different victims, they were connected by more than just their similar character. Both crimes involved Willis’s family members, and the fistfight leading to the second crime occurred due to hard feelings arising from the first crime. Each crime would have been admissible as a similar transaction at a trial on the other crime, given that in both crimes, Willis shot family members with firearms taken from his vehicle after becoming angry at them. “Where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying appellant’s motion for severance.” (Citation and punctuation omitted.) Boatright v. State, 308 Ga. App. 266, 274 (2) (707 SE2d 158) (2011). See also Collins v. State, 267 Ga. App. 784, 786 (2) (600 SE2d 802) (2004) (no abuse of discretion in denial of motion to sever aggravated assault charges against different victims because crimes conducted in a similar manner). “Moreover, this case was not so complex as to impair the jury’s ability to distinguish the evidence and apply the law intelligently as to each offense.” (Citation omitted.) Boatright v. State, 308 Ga. App. at 274 (2). In fact, the jury acquitted Willis of the two charges arising from an alleged aggravated assault against Regina Smith. Under these circumstances, we find no abuse of discretion.

4. Willis next contends that the trial court erred in admitting the statement he gave to Investigator Pitts because the police failed to give him a Miranda warning; because he was coerced, tricked and induced by false promises into making the statement; and because he was not given the opportunity to obtain counsel in connection with the statement. Willis also contends that the video of the statement should have been redacted to exclude statements by the officers that they did not believe his assertion that he found the allegedly stolen shotgun in the truck after he bought it.

A suspect is not entitled to warnings under Miranda v. Arizona, 384 U. S. 436 [(86 SC 1602, 16 LE2d 694) (1966),] unless that suspect has been taken into police custody or has been deprived of freedom of action in another significant way. A trial court’s findings as to whether a suspect was unlawfully questioned while in police custody, without being advised of his Miranda rights, will be upheld on appeal unless clearly erroneous.

(Citations and punctuation omitted.) Sams v. State, 239 Ga. App. 715, 717 (2) (521 SE2d 848) (1999). See also Anguiano v. State, 313 Ga. App. 449, 449-450 (721 SE2d 652) (2011) (“Whether one is in custody for Miranda purposes is a mixed question of law and fact; and on appellate review, we will not disturb the findings of fact that underpin the trial court’s legal conclusions made at a suppression hearing, unless they are clearly erroneous.”) (punctuation and footnotes omitted).

(a) The trial court held a Jackson v. Denno hearing in connection with the statements Willis gave the police after his arrest in connection with the September 27,2008 incident. The evidence showed that following his arrest, Willis was given a Miranda warning by an investigator with the Bibb County Sheriff’s Department and gave a short statement in which he denied shooting at Jackson and said that his brother Jerry fired the shotgun. He did not invoke his right to counsel at that time. After Willis was released on bond in Bibb County, he voluntarily came to the Jones County Sheriff’s Department in response to Pitts’s conversation with the bondsman. Pitts testified that Willis was not under arrest, that he was free to leave at any time, and that he was not threatened or promised anything. Pitts and Kenny Gleaton spoke with Willis in an interview room. The taped interview indicates that Willis showed no reluctance in talking to the officers about the September 27, 2008 incident and that he was allowed to leave after he was questioned about the shotgun. The trial court concluded that Willis came to the Jones County Sheriff’s Department voluntarily and that he engaged in a conversation with the officers in a noncustodial setting. The trial court found that a reasonable person in Willis’s position “would not perceive that he or she was in custody.”

We find that the “evidence supports the trial court’s findings that [the statement was] freely and voluntarily made, under noncustodial circumstances. [Cits.]” Sams v. State, 239 Ga.App. at 717 (2). See also Beaudoin v. State, 311 Ga.App. 91, 94 (3) (714 SE2d 624) (2011); Jones v. State, 278 Ga. App. 616, 617 (3) (629 SE2d 546) (2006). Thus, the trial court properly admitted the statement.

(b) Willis also asserts that the trial court erred in failing to redact the CD of his interview with the Jones County officers to exclude the officers’ statements that they did not believe Willis. Although Willis raises several grounds on appeal for excluding the officers’ statements, he failed to raise any of them below. Instead, his counsel simply said that the statements “should not be in there” and “[w]e need to keep them out.” Accordingly, he has waived appellate review of this issue. Powell v. State, 308 Ga.App. 489, 490 (1) (707 SE2d 877) (2011) (failure to object to evidence on particular ground waives it for appeal).

In fact, Willis’s counsel’s request that the statement be redacted was based on a misrepresentation of the contents of the recorded statement. His counsel stated that “the officers started claiming that they think he stole it and they kept telling him he was guilty and all that.” Our review of the CD reflects no such statement by the officers; to the contrary, the interview was handled in a very cordial manner. Willis told Pitts and Gleaton that he had bought the truck on September 2,2008, and that he discovered the shotgun under the seat of the truck on September 27,2008, the day of his arrest in connection with the Jackson incident, when he moved the truck seat forward to put something in the back. Willis told the officers that he did not know how the shotgun had gotten there. Gleaton said that he found it hard to believe that the man who had sold the truck would have left a shotgun inside and made no effort to retrieve it, so he wondered whether anyone else had access to the truck between the time that Willis bought it and the time he found the shotgun. Willis had already told Gleaton that he could not lock the truck, and he reiterated that he did not know how the gun got in the truck. Thus, Gleaton never said that he did not believe Willis; in fact, Willis never told the officers that the prior owner had left the shotgun in the truck. Rather, Gleaton simply questioned whether the prior owner would have forgotten such a nice shotgun, and then explored with Willis other possibilities to explain how Willis could have found the shotgun 25 days after he bought the truck.

Accordingly, even if Willis had properly preserved this issue for appeal, we find no error.

5. Willis asserts that the trial court erred in denying his request to admit a certified copy of an indictment for a robbery charge that was pending against victim Jacoby Jackson. He argues that “the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.” Willis sought to introduce this evidence during his cross-examination of Jackson, but Jackson denied that he was the individual named in the indictment or that he robbed anyone. He said that he did not recall whether he had been indicted for robbing the named victim.

As a general rule, only evidence of a witness’s prior convictions may be admitted for impeachment purposes. OCGA § 24-9-84.1 (a) (1). Thus, Jackson would not generally be subject to impeachment based on pending charges. McClure v. State, 278 Ga. 411, 413 (3) (603 SE2d 224) (2004) (“A witness cannot be impeached by instances of specific misconduct unless that misconduct has resulted in the conviction of a crime....”) (footnote omitted). Cf. Carter v. State, 289 Ga. 51, 55 (7) (709 SE2d 223) (2011) (no error in excluding indictment from evidence, even where party ultimately convicted, because “[a]n indictment represents only accusations against a defendant, and is not in itself a conviction”). And though “[a] criminal defendant does have the right to cross-examine a witness concerning pending criminal charges against the witness for purposes of exposing a witness’ motivation in testifying, e.g., bias, partiality, or agreement between the government and. the witness,” the indictment here was properly excluded because Willis’s attorney never attempted to cross-examine Jackson in this manner. (Citation and punctuation omitted.) Colzie v. State, 289 Ga. 120, 123 (3) (710 SE2d 115) (2011). Thus, we find no error. See also Pope v. State, 178 Ga. App. 148,149 (3) (342 SE2d 330) (1986) (certified copies of guilty pleas, indictments or sentences related to prior crimes are admissible only if they pertain to crimes concerning which testimony has been admitted and a foundation laid).

6. Willis next asserts that the trial court erred in failing to give a number of his requested jury charges.

(a) Willis asserts that the trial court erred in failing to give two of his requested charges on the issue of justification and his requested charge on mutual combat. Even assuming that the requested charges contain principles of law that were 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.” (Citations and punctuation omitted.) Bennett v. Moore, 312 Ga. App. 445, 460 (4) (b) (718 SE2d 311) (2011). See also Walker v. State, 282 Ga. 406, 408 (2) (651 SE2d 12) (2007); Mohamed v. State, 276 Ga. 706, 710-711 (4) (583 SE2d 9) (2003).

Here, the trial court substantially covered the legal principles in these requested charges in its instructions on justification and self-defense, and the jury charge as a whole fairly presented the issues regarding Willis’s defense. “It is well settled that the trial court is not obligated to instruct the jury in the exact language requested and that, where the same principle of law is covered in another instruction, failure to give the requested charge is not error.” (Punctuation and footnote omitted.) Buruca v. State, 278 Ga. App. 650, 653 (2) (629 SE2d 438) (2006). See also Milinavicius v. State, 290 Ga. 374, 378 (4) (721 SE2d 843) (2012) (where charge as a whole fairly represented the issue of justification failure to use certain words in charge presents no ground for reversal).

(b) Willis also asserts that the trial court erred in failing to give his requested charge on the lesser offense of reckless conduct. Willis notes that he told the Jones County officers that he shot at a house and a tree instead of shooting at Jackson. He argues that this evidence does not support a finding of aggravated assault with regard to Jackson. But at trial Willis specifically repudiated his statement to the Jones County officers. He said that he lied and just told Pitts what he wanted to hear. Willis’s defense at trial, as he testified, was that his brother shot Jackson and that all the witnesses who identified him as the shooter were lying. “A request to charge must be apt, a correct statement of law, and precisely adjusted to some theory in the case.” (Citation and footnote omitted.) Anderson v. State, 264 Ga. App. 362, 365 (3) (590 SE2d 729) (2003). Here, the State asserted that Willis shot at Jackson intentionally and Willis asserted that he did not shoot at all. Thus, a reckless conduct charge was not supported by any theory of the case. Accordingly, the trial court was not required to charge the jury on reckless conduct as to charges from September 27, 2008. Glover v. State, 292 Ga. App. 22, 29-30 (5) (a) (663 SE2d 772) (2008).

We note that Willis does not argue on appeal that the reckless conduct charge was required with regard to the charges arising out of the April 30, 2009 incident. And as the trial court noted in explaining the rejection of Willis’s proposed reckless conduct charge, Willis claimed justification as to those charges. By asserting this defense, Willis “conceded that his act was intentional, but asserted that he committed the act for an excusable reason, such as self-defense.” (Punctuation and footnote omitted.) Emmanuel v. State, 300 Ga. App. 378, 380 (2) (685 SE2d 361) (2009). But “[t]he crime of reckless conduct is, in essence, an instance of criminal negligence, rather than an intentional act, which causes bodily harm to or endangers the bodily safety of another.” (Punctuation and footnote omitted.) Id. Under these circumstances, the trial court correctly refused to give a reckless conduct charge.

7. Willis further argues that his sentence constitutes cruel, inhumane and unusual punishment. Willis was sentenced as a recidivist, as follows: twenty years on each of the three counts of aggravated assault to run concurrently with each other; five years on each of the three counts of possession of a firearm during the commission of a crime, to run concurrently with each other, but consecutively to the sentence for aggravated assault; and fifteen years on each of the two counts of possession of a firearm by a convicted felon, to run concurrently with each other, but consecutive to the sentence for aggravated assault.

Each of these sentences was within the statutory limits for the crimes charged, OCGA §§ 16-5-21 (b), 16-11-106 (b), 16-11-133 (b), and “a presumption arises when a defendant is sentenced within the statutory limits set by the legislature that such sentence does not violate the Eighth Amendment’s guarantee against cruel and unusual punishment.” (Citation and punctuation omitted.) Middleton v. State, 313 Ga. App. 193, 194 (721 SE2d 111) (2011).

For a court to find a punishment so disproportionate as to be cruel and unusual under the Eighth Amendment, the punishment must fall within one of two classifications. See Graham [v. Florida], __ U. S. _ (II) [(130 SC 2011, 2021-2022, 176 LE2d 825) (2010)]. First, a punishment may be unconstitutionally cruel and unusual in the rare circumstance where the defendant’s sentence is “grossly disproportionate” to the underlying crime. Id., 130 SC at 2022. Second, a punishment is unconstitutionally cruel and unusual if it violates certain narrow “categorical restrictions” enunciated by the United States Supreme Court. Graham,_U. S. at _(II), 130 SC at 2021-2022.

Id. Because Willis’s sentence does not fall into either of these two classifications, this enumeration is without merit.

Decided June 15, 2012.

Robert M. Bearden, Jr., for appellant.

Gregory W. Winters, District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., concurs. McFadden, J., concurs fully and specially.

MCFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority opinion. I write separately to note, as to Division 7, that our discussion of cruel and unusual punishment addresses only federal constitutional law, because — although Willis invokes Ga. Const, of 1983, Art. I, Sec. I, Par. XVII — he suggests that the federal and state constitutional standards are identical. But they are not. See Fleming v. Zant, 259 Ga. 687, 689-690 (3) (386 SE2d 339) (1989); Haygood v. State, 225 Ga. App. 81 (483 SE2d 302) (1997). Willis does cite Haygood, supra, but he does not argue — and I do not see — any basis for reaching a different result under the state constitutional standard.

       The jury acquitted Willis of one count of aggravated assault and one count of possession of a firearm during the commission of a crime.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       On another occasion, Willis told his niece, Regina Smith, that he shot Jackson, who was her son, because Jackson had taken his cell phone.

       Willis also asserts that the trial court erred in failing to sever Counts 1,2,3, 5 and 8 from the remaining counts of the indictment, but no basis exists for severing the counts in this fashion. Count 1 charged Willis with aggravated assault for shooting at Jackson at the house, and Count 2 alleged aggravated assault for shooting at Jackson at the store. Count 3 charged Willis with possessing a gun during the commission of the aggravated assault alleged in Count 1. Count 5 alleged aggravated assault for shooting Antonio Smith, and Count 8 alleged possession of a firearm by a convicted felon in connection with Count 6, which alleged aggravated assault for shooting at Regina Smith. (The jury acquitted Willis of both Counts 6 and 8.) Thus, these counts involve both the September 27 and the April 30 incidents, as do the remaining counts, which were as follows: Count 4, possession of a firearm during the commission of the crime alleged in Count 2; Count 6, aggravated assault on Regina Smith; Count 7, possession of a firearm in connection with the assault on Antonio Smith; Count 9, possession of a firearm by a convicted felon on September 27, 2008; and Count 10, possession of a firearm by a convicted felon on April 30, 2009.

       The Jackson v. Denno hearing was conducted, by a different judge from the judge who presided at trial.

       Pitts read Willis his Miranda rights prior to questioning him about the stolen shotgun, albeit after he was asked what had happened on September 27, 2008, and Willis then signed a statement indicating that he had not been promised anything or threatened in connection with talking to the Jones County officers.

       Willis did not raise his redaction argument either in his motion to suppress the statement or at the Jackson v. Denno hearing.

       Willis had previously been convicted of possession of a firearm by a convicted felon.


author: Adams, Judge.

text:
    A12A0366.
    BARR et al. v. GREGOR et al.
    (728 SE2d 868)
   Adams, Judge.

Appellees Glenda Sue Gregor and Richard James Gregor, the paternal grandmother and paternal stepgrandfather of H. M. S., filed a petition to adopt her after both her parents died. The trial court granted the petition and the appellants, who are relatives of the child, filed the present appeal.

H. M. S.’s father died in 2008 and her mother died in 2009. Less than a week after her mother died, a juvenile court in Tennessee, where the mother and H. M. S. had lived, entered an interim order awarding physical custody to the Gregors. In December 2009, another juvenile court in Tennessee entered a “Permanent Caregiver Plan Order” which awarded custody of the child to the Gregors and liberal visitation to appellant Laura Barr, who is the child’s maternal aunt.

In August 2010, the Gregors filed the present petition for adoption in the Superior Court of Hall County, the county of their residence. Barr and David Nichols (the child’s maternal grandfather and Barr’s father) filed a motion to intervene and a joint objection to the petition for adoption pursuant to OCGA § 19-8-15. The trial court granted the motion to intervene, but subsequently granted the petition for adoption over the intervener’s objections, who then filed the present appeal. After careful consideration, we now affirm.

1. Appellants first contend that the trial court did not have subject matter jurisdiction to modify the Tennessee Custody Order under the Georgia Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), OCGA § 19-9-40 et seq. Although appellants note that adoptions are generally excluded from the UCCJEA, they urge that we nevertheless should apply the provisions here because of the effect of the adoption petition on the custody order rendered by the Tennessee Court. However, our legislature has specifically provided that the “[UCCJEA] does not govern an adoption proceeding[,]” OCGA § 19-9-42, and based on this provision our appellate courts have refused to extend the UCCJEA to adoption proceedings. In re Adoption of D. J. F. M., 284 Ga. App. 420, 423, n. 4 (643 SE2d 879) (2007); Rokowski v. Gilbert, 275 Ga. App. 305, 314 (7) (620 SE2d 509) (2005). Further, appellants do not cite us to any contrary authority in which our appellate courts have carved out an exception and applied the current version of the UCCJEA to divest the Georgia Court of subject matter jurisdiction over an adoption proceeding. “The applicable Code section, OCGA § 19-8-2, grants exclusive jurisdiction to superior courts in all adoption proceedings, and makes venue proper in the county in which the adopting parents reside.” Rokowski, 275 Ga. App. at 314 (7). Thus, the trial court did not err by exercising jurisdiction in this case.

2. Appellants further argue that the adoption was improper under the doctrine of collateral estoppel, and if the Gregors were dissatisfied with the Tennessee custody order, they should have sought modification of that order instead of petitioning to adopt H. M. S.

However, it does not appear that appellants argued this below; indeed, at the hearing appellants’ attorney recognized that “the adoption case is separate than the custody case in Tennessee,” and he agreed that the custody case and the adoption petition involved “two distinctively different issues.” Although appellants did vehemently contend that Barr’s rights under the custody order would be eviscerated by allowing the adoption to go forward and that the two cases could not be “separated,” we do not think that this is the same as contending that collateral estoppel barred these proceedings. Based on the foregoing, we conclude the issue of collateral estoppel was not fully and fairly raised below and that, therefore, appellants cannot now assert that defense as a reason the trial court’s order granting the petition should be reversed. See In the Interest of B. A. S., 254 Ga. App. 430, 441 (8) (563 SE2d 141) (2002) (failure to raise estoppel issue below precludes appellate consideration); Haygood v. Head, 305 Ga. App. 375, 377-378 (1) (699 SE2d 588) (2010) (trial court erred by sua sponte dismissing claims based on collateral estoppel when that affirmative defense was not pled and proved below).

3. Appellants next contend that the trial court “abused its discretion in its application of law relative to the Child’s best interest.” Additionally, in their fourth enumeration, they contend the trial court erred by finding that the adoption was in the child’s best interest.

We begin with our standard of review. In an adoption case, the trial judge sits as both judge and jury and is vested with a broad range of legal discretion. Motherly v. Kinney, 227 Ga. App. 302 (1) (489 SE2d 89) (1997). And because there are no surviving natural parents in this case, the trial court,

[a]rmed with this discretion... must determine whether the “petitioner is capable of assuming responsibility for the care, supervision, training, and education of the child, that the child is suitable for adoption in a private family home, and that the adoption requested is for the best interest of the child.” [OCGA § 19-8-18 (b).] On appeal, we construe the evidence in a light most favorable to the court’s judgment, and we will affirm a trial court’s finding that the adoption is in the child’s best interest if there is any evidence to support it.

In the Interest of B. A. S., 254 Ga. App. at 444 (12). Rokowski, 275 Ga. App. 306 (2) (“in matters of adoption the superior court has a very broad discretion which will not be controlled by the appellate courts except in cases of plain abuse. . . .”) (punctuation and footnote omitted).

At the hearing on the adoption petition, the appellants acknowledged that the Gregors are “fully capable of being good parents” to H. M. S. The trial court found overwhelming evidence that the Gregors were worthy and capable of caring for the child, a finding that is not challenged in this appeal. The trial court next considered whether it was in the best interest of the child for the adoption petition to be granted, and in doing so specifically utilized the factors listed in OCGA § 19-9-3, although the court recognized that these factors are listed in the statute governing custody between parents. Appellants now contend that the trial court erred by considering these factors, arguing that because the legislature intended that these factors apply in child custody proceedings between parents, it was reversible error for the trial court to utilize these factors in this case.

We do not believe, however, that the trial court abused its discretion by considering these factors under the facts of this case. First, the appellants made numerous references to the situation here being akin to a divorce where one parent lives out of state. Further, at the hearing on the adoption petition the appellants’ attorney responded affirmatively when the trial judge asked if the court should consider the “statutory” best interest guidelines, and the Gregors’ attorney made specific reference to OCGA § 19-9-3 and framed part of her argument around those factors, without any objection from the appellants’ attorney concerning the court’s consideration of those factors. Further, appellants posed no objection when the trial court announced its decision in open court and noted specifically that it utilized OCGA § 19-9-3 in its analysis. Thus, under these circumstances, appellants will not now be heard to complain that the trial court considered these factors in deciding whether the adoption was in the child’s best interest.

Further, we cannot say that the trial court erred by finding that the adoption was in the best interest of the child. Although the guardian ad litem recommended against the adoption, finding that in terms of the important factor of permanency, the child’s situation here was not unlike that of a child of divorced parents where an out-of-state parent has visitation with the child, requiring the child to travel back and forth. But that is not the only aspect of “permanency” to be considered, as the trial court recognized by also noting the importance of continuity, stability and security that would come from allowing the Gregors to adopt H. M. S., weighing those factors against the loss of Barr’s legal rights under the Tennessee custody order to visit with H. M. S. Indeed this was one of the guardian ad litem’s main concerns and the appellants’ primary objection to the adoption • — • that the Gregors would not continue to allow H. M. S. to visit with her maternal relatives or that they would sharply curtail such visitation if they were not legally obligated to allow the visitation. But the trial court found no evidence to support this contention, and found instead that the Gregors had worked diligently to promote such visitation. The trial court also found that the “Gregors have applied themselves so as to promote or foster a positive relationship with all [H. M. S.’s] blood relatives, including, but not limited to, [the appellants].” Specifically, as to these issues, the Gregors testified that they believed it would be detrimental to H. M. S. to sever her relations with any member of her family, and that they had every intention of ensuring that the child remained in contact with all members of her extended family, unless such contact posed a danger to her safety or welfare. Indeed Barr confirmed during her testimony that the Gregors offered to allow her to visit with H. M. S. in their home during a time when her visitation rights had been temporarily suspended by the Tennessee court. Although the Gregors also testified that they would modify some aspects of the visitation as it existed under the Tennessee order — for example they would require Barr to come to their home for visits during the school year, excepting holidays and breaks when the child would be allowed to visit at Barr’s home in Tennessee — they gave sound reasons for this curtailment, citing the great distance the child had to travel in a short period, the disruption in her routine and that the child suffered behavior issues at home and at her pre-school after she would return to them, a fact also borne out by testimony from her teachers. The trial court agreed such curtailment would be in the child’s best interest, noting that facts showed that the long distance visitation did have adverse consequences for the child.

Decided June 15, 2012.

Hester & Hester, Justin Y. Hester, for appellants.

Whelchel, Dunlap, Jarrard & Walker, Bethany S. Magnus, Michelle T. Rohan, for appellees.

In sum, having reviewed the trial court’s lengthy and thorough order, as well as the evidence here, we cannot say, applying the applicable standard, that the trial court abused its discretion by granting the petition for adoption. In the Interest of B. A. S., 254 Ga. App. at 444; Motherly, 227 Ga. App. at 303 (1).

4. Lastly, appellants contend that the trial court ruling creates bad public policy because out-of-state courts will not grant primary custody of an orphaned child to a relative that is a Georgia resident for fear that the custodian will seek to adopt the child and sever ties with the out-of-state relatives. However, we will not reverse the trial court’s order based on mere speculation.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       H. M. S. was born September 27, 2005.

       At that time, Barr went hy her maiden name Laura Nichols.

       The appellants have represented in this brief on appeal that Barr is the primary objecting party and that they do not challenge the trial court’s decision denying Nichols visitation.

       Although appellees argue that the appellants waived this argument by failing to assert it below, appellants correctly point out in their reply brief that subject matter jurisdiction cannot be waived. Snyder v. Carter, 276 Ga. App. 426, 427 (623 SE2d 241) (2005).


text:
    A12A0369.
    STOCKBRIDGE DENTAL GROUP, P.C. v. FREEMAN.
    (728 SE2d 871)
   Miller, Judge.

Myrtle Freeman brought a dental malpractice action against Stockbridge Dental Group, P.C. (“SDG”), in response to which SDG asserted a counterclaim and affirmative defenses based upon an exculpatory clause and covenant not to sue contained in a form signed by Freeman prior to her treatment. The trial court granted Freeman’s motions to strike SDG’s counterclaim and affirmative defenses, finding that the exculpatory clause was against public policy and unenforceable under Emory University v. Porubiansky, 248 Ga. 391 (282 SE2d 903) (1981). This Court granted SDG’s request for interlocutory review of the trial court’s order. On appeal, SDG argues that Emory, supra, 248 Ga. 391, is not controlling, and that SDG’s exculpatory clause did not violate public policy. We disagree and conclude that this case does in fact fall within the purview of Emory, and therefore, the exculpatory clause and covenant not to sue were void as against public policy.

“We review a trial court’s decision on a motion to strike for an abuse of discretion.” (Citation omitted.) Cogland v. Hosp. Auth. of City of Bainbridge, 290 Ga. App. 73, 74 (1) (658 SE2d 769) (2008). OCGA§ 9-11-12 (f) provides that “[u]pon motion . . . , the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Moreover, “a motion to strike a defense should not be granted unless it appears to a certainty that the plaintiff would succeed despite any state of facts which could be proved in support of the defense.” (Citations omitted.) Wellbaum v. Murphy, 122 Ga. App. 654 (1) (178 SE2d 690) (1970).

In her malpractice complaint against SDG and Dr. Anup Dad-hania, the treating dentist who was employed by SDG, Freeman acknowledged that she had signed a form in which she had promised not to sue SDG regarding her dental care. In relevant part, this form provided as follows:

You will be seeing Dr. Anup Dadhania today and he ... will be solely responsible for your dental care. No other party or person shall be liable. ... I understand that each dentist is an individual practitioner and is individually and solely responsible for the dental care rendered to me and any associated financial matters. I agree to this covenant not to sue the corporation that employs the dentist or its shareholders regarding my dental care and associated financial matters.

In the last count of her complaint, Freeman sought declaratory judgment stating that this exculpatory clause violated public policy.

In SDG’s answer, it asserted a counterclaim against Freeman, claiming that she had breached her covenant not to sue, and it also raised several affirmative defenses based upon the exculpatory clause. Freeman filed motions to strike SDG’s counterclaim and affirmative defenses. The trial court found that the exculpatory clause was contrary to public policy under Porubiansky v. Emory Univ., 156 Ga. App. 602 (275 SE2d 163) (1980), aff’d, Emory, supra, 248 Ga. 391, and granted Freeman’s motions to strike SDG’s counterclaim, as well as its affirmative defenses that relied upon the exculpatory clause. The trial court certified its order for immediate review, and this Court granted SDG’s application for interlocutory appeal. In four enumerations of error, SDG essentially argues that Emory does not control the instant case, and that the exculpatory clause did not violate public policy. SDG’s arguments are without merit.

In Emory, supra, 248 Ga. at 392, a dental patient sued Emory University’s School of Dentistry Clinic and one of its employee-dentists for malpractice. Emory asserted that the signing of an information-consent form was a complete bar to the action, and the trial court granted summary judgment to Emory and the dentist based upon the exculpatory clause in the form. Id. That clause provided, in pertinent part, as follows:

In consideration of Emory University School of Dentistry performing dental treatment, I do hereby expressly waive and relinquish any and all claims of every nature I... may have against Emory University, its officers, agents, employees, or students, their successors, assignees, administrators, or executors; and further agree to hold them harmless as the result of any claims ... arising out of any dental treatment rendered, regardless of its nature or extent.

(Punctuation omitted.) Id. The Supreme Court of Georgia affirmed this Court’s holding that such clause was void as against public policy and invalid as a defense to the patient’s dental malpractice action. Id. at 391-392, 394-395.

Despite the fact that Emory is almost squarely on point with this case, SDG nevertheless argues that Emory does not control because its exculpatory clause limited only SDG’s liability, whereas the clause in Emory purported to completely bar all claims against not only the clinic, but also that of the dentists and dental students. According to SDG, Emory “plainly applies only to an exculpatory clause with global release language, not an exculpatory clause with a limited release ... as in this case.” SDG misconstrues the holding of Emory. Notably, the Supreme Court in Emory, supra, 248 Ga. at 395, held that the exculpatory clause was void as to both the clinic and the dentist. The Supreme Court concluded that the dental clinic itself was engaged in the practice of dentistry and was under a duty to exercise reasonable care. Id. at 393, 395. Here, “in offering services to the public[, SDG] is [likewise] engaged in the practice of dentistry.” (Punctuation omitted.) Id. at 395. Thus, like the dental clinic in Emory, SDG was under a duty to exercise reasonable care and skill in the performance of dental services. And SDG cannot relieve itself from that duty via the exculpatory clause used in this case.

The cases cited by SDG do not persuade us otherwise. Notably, in further support of its argument that Emory does not apply to exculpatory clauses with limited release language, SDG cites TSG Water Resources v. D’Alba & Donovan Certified Public Accountants, 260 Fed. Appx. 191 (11th Cir. 2007), and Mosteller Mansion, LLC v. Mactec Engineering & Consulting of Ga., No. COA07-664, 2008 WL 2096769, at *3 (II) (N.C. Ct. App. May 20, 2008) (applying Georgia law). Significantly, however, neither case involved the negligence of dental professionals. TSG involved an exculpatory clause purporting to eliminate the duty of care for accountants; the Eleventh Circuit expressly held that it was “not persuaded that the duties of an accountant are analogous to the duties of a medical or dental professional.” TSG Water Resources, supra, 260 Fed. Appx. at 204 (V). And Mosteller, supra, 2008 WL 2096769, at *1, involved exculpatory language used by an engineering firm. Moreover, the exculpatory clauses in those cases were limited insofar as they limited the types of damages that could be sought. TSG Water Resources, supra, 260 Fed. Appx. at 204 (V); Mosteller, supra, 2008 WL 2096769, at *6 (III) (B). While the exculpatory clause here was limited in its application to SDG, it nevertheless purported to preclude legal action against SDG entirely, thereby eliminating its duty of care. A dental office is not permitted to do this under Emory.

Decided June 15, 2012.

Mason Bohr, William P. Mason, for appellant.

Curtis A. Thurston, Jr., John D. Rogers, Jr., for appellee.

Finally, SDG contends that Emory is factually distinguishable from the instant case because SDG is a dental office rather than a school of dentistry. This factual distinction, however, was implicitly rejected by the Supreme Court in Emory. In Emory, supra, 248 Ga. at 395, the Supreme Court held that the clinic’s status as primarily a training institution did not allow for an exemption from the duty to exercise reasonable care. And since a training institution is “not exempted from the standard of care necessary for the protection of the public,” id., then neither is a private dental office such as SDG.

In sum, the exculpatory clause and covenant not to sue used in this case clearly fall within the purview of Emory. Therefore, contrary to SDG’s contention otherwise, the clause and covenant were void as against public policy. As such, the trial court did not abuse its discretion in granting Freeman’s motions to strike SDG’s counterclaim and affirmative defenses that relied upon the exculpatory clause and covenant not to sue.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

       We note that Dr. Dadhania is not a party to this appeal.

       Embedded as a footnote in its first enumeration of error, SDG also argues that this Court should reverse the trial court’s order because the trial court did not have jurisdiction to rule on Freeman’s equitable claim for declaratory relief. “But a party cannot expand its enumerations of error through argument or citation in its brief. Hence, [SDG] has waived and abandoned this assertion of error for purposes of appeal.” (Citations and punctuation omitted.) Westmoreland v. JW, LLC, 313 Ga. App. 486, 491 (4), n. 1 (722 SE2d 102) (2012).


text:
    A12A0613. A12A0614.
    BRANTLEY LAND & TIMBER, LLC v. W & D INVESTMENTS, INC. HAWK’S LANDING DEVELOPMENT COMPANY v. W & D INVESTMENTS, INC.
    (729 SE2d 458)
   Adams, Judge.

On May 3, 2007, W & D Investments, Inc. (“W & D”) entered into separate agreements with Brantley Land & Timber, LLC (“Brant-ley”) and Hawk’s Landing Development Company (“Hawk’s”) (collectively referred to herein as the “Developers”), under which W & D was to install water systems to provide water service to Hawk’s development, Hawk’s Landing, and Brantley’s developments, Eagle’s Crest/ Satilla Plantation (the “Agreements”). On January 12, 2010, W & D brought a breach of contract action against Hawk’s and on April 25, 2011 filed a similar action against Brantley. These suits alleged that the Developers each failed to pay amounts due and owing under the Agreements. Hawk’s and Brantley each filed answers denying liability and asserting counterclaims against W & D. Subsequently, the Developers each filed an “Amended Answer and Counterclaim,” in which they asserted an additional counterclaim contending that W&D was required under OCGA § 43-14-8.2 to have a utility contractor license; that W&D did not possess such a license; that by failing to secure this license, W&D lacked the capacity to lawfully install water systems; and thus that the Agreements were unenforceable (the “Amended Counterclaim”). The Developers accordingly sought reimbursement for all sums paid to W & D under the Agreements. In addition, the Developers each filed motions for summary judgment on the Amended Counterclaim, and W&D filed cross-motions for partial summary judgment as to that counterclaim. The trial court granted W & D’s motion for partial summary judgment and denied the Developers’ motions for summary judgment. Brantley and Hawk’s each filed separate appeals from that order.

The Developers are correct that a party’s failure to obtain a license to engage in certain businesses can void the party’s business contracts, if the licensing requirement is part of regulatory scheme in the public interest:

“‘[W]here a statute provides that persons proposing to engage in a certain business shall procure a license before being authorized to do so, and where it appears from the terms of the statute that it was enacted not merely as a revenue measure but was intended as a regulation of such business in the interest of the public, contracts made in violation of such statute are void and unenforceable.’ [Cits.]” Bernstein v. Peters, 68 Ga. App. 218, 221 (1) (22 SE2d 614) (1942); accord Robinson v. Colonial Discount Co., 106 Ga. App. 274, 277 (3) (126 SE2d 824) (1962).

Bowers v. Howell, 203 Ga. App. 636, 637 (1) (417 SE2d 392) (1992). Beginning June 30, 1994, entities engaged in the business of utility contracting in Georgia have been required to have a utility contractor license under OCGA § 43-14-8.2 (b). And this Court has previously held that the licensing requirements under Chapter 14 of Title 43 are not merely revenue measures, but rather were intended to regulate the covered industries, including utility contracting, in the public interest:

In the Georgia Code relating to the regulation of certain businesses, including [utility contracting], the State of Georgia declared the practice of [utility] contracting to be a business or profession “affecting the public interest.” OCGA § 43-14-1. The State, therefore, regulates the profession for the purpose of “safeguarding homeowners, other property owners, tenants, and the general public against faulty, inadequate, inefficient, or unsafe [utility contracting].” Id.

JR Constr./Electric v. Ordner Constr. Co., 294 Ga. App. 453, 453-454 (669 SE2d 224) (2008). Therefore, the sole issue before us is whether the trial court properly found that W & D was not engaged in utility contracting as that term is defined under Chapter 14.

“The interpretation of a statute is a question of law, which is reviewed de novo on appeal.” (Citation, punctuation and footnote omitted.) Joe Ray Bonding Co. v. State of Ga., 284 Ga. App. 687, 688 (644 SE2d 501) (2007). And our Supreme Court has summarized the guidelines for statutory interpretation, as follows:

In construing a statute, our goal is to determine its legislative purpose. In this regard, a court must first focus on the statute’s text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remembering at all times that the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes. If the words of a statute, however, are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words. If, on the other hand, the words of the statute are ambiguous, then this Court must construe the statute, keeping in mind the purpose of the statute and “the old law, the evil, and the remedy.” OCGA § 1-3-1 (a).

(Punctuation and footnotes omitted.) Busch v. State, 271 Ga. 591, 592 (523 SE2d 21) (1999).

The Georgia Code defines “utility contracting” to mean “undertaking to construct, erect, alter, or repair or have constructed, erected, altered, or repaired any utility system.” OCGA § 43-14-2 (13). And “[ujtility system” means:

[a]ny system at least five feet underground, when installed or accessed by trenching, open cut, cut and cover, or other similar construction methods which install or access the system from the ground surface, including, but not limited to, gas distribution systems, electrical distribution systems, communication systems, water supply systems, and sanitary sewerage and drainage systems ....

(Emphasis supplied.) OCGA§ 43-14-2 (17) (A).

We interpret this statute under its plain terms as defining utility systems to include only water supply systems at least five feet underground that are installed or accessed from the ground surface. Thus, any water supply systems less than five feet underground would not be considered utility systems under the statute and would not require a utility contractor license “to construct, erect, alter, or repair or have constructed, erected, altered, or repaired.” Here, it is undisputed that “none of the trenching, cutting and installation related to the construction and access of the system[s on the Developers’ properties] was done at a depth of five feet or deeper below the surface.” Thus, we conclude that W & D was not engaged in utility contracting in connection with the Developers’ properties. It follows, therefore, that W & D was not required to have a utility contractor license to perform work under the Agreements, and that those Agreements are not unenforceable because W & D did not possess such a license.

We are unpersuaded by the Developers’ argument that the legislative history of the statute somehow indicates that the General Assembly intended the statute to apply to systems installed at less than five feet deep. The statutory language clearly indicates otherwise. And “[a]s our Supreme Court has explained, the search for legislative intent must begin with the words of the statute, and if those words are clear and unambiguous, it also must end there.” (Citation omitted.) Speedway Motorsports v. Pinnacle Bank, 315 Ga. App. 320, 325 (2) (727 SE2d 151) (2012). Thus, it is well settled that “[o]ne of the first rules to guide a Court in applying a Statute, is never to undertake construction, where the law is perfectly plain.” (Emphasis in original.) Kerese v. State of Ga., 10 Ga. 95, 96-97 (1) (1851). See also Six Flags Over Georgian v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003) (“Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.”). We find that the language of this statute “is perfectly plain, and its meaning is neither absurd, impossible of enforcement, or unreasonable.” Kerese v. State, 10 Ga. at 97 (1). See, e.g., 29 CFR §§ 1926.650-1926.652 (OSHA regulations requiring protective plans such as trenching, sloping and shielding for excavations at a depth greater than five feet).

Decided June 15, 2012.

W. Vincent Settle III, for appellants.

In fact, at least one regulation passed under Chapter 14 supports our interpretation that the legislature intended to distinguish between utility systems installed at least five feet underground and those installed less than five feet below the surface. Chapter 14 requires all utility managers to obtain a utility manager certificate issued by the Division of Utility Contractors. OCGA § 43-14-8.3. And the regulation promulgated for obtaining a statewide utility manager certificate requires that all applicants must have a minimum of two years of experience

as a licensed utility foreman in the State of Georgia or equivalent experience from another state as a manager or foreman in the field for the construction, erection, alteration, or repair of utility systems at least five feet underground, including but not limited to 12 hours of actual instruction from a board-approved safety training course.

(Emphasis supplied.) Ga. Comp. R. & Regs. r. 121-2-.08 (2). Cf. North-easi Ga. Med. Center v. Winder HMA, 303 Ga. App. 50, 56 (2) (b) (693 SE2d 110) (2010) (reviewing court must give deference to the agency’s interpretation of statutes it is charged with enforcing or administering and to agency’s own rules and regulations because “agencies provide a high level of expertise and an opportunity for specialization unavailable in the judicial or legislative branches”) (Citations and punctuation omitted.).

Accordingly, we find that the trial court properly denied the Developers’ motions for summary judgment and granted W & D’s motions for partial summary judgment on the Amended Counterclaim.

Judgments affirmed.

Barnes, P. J., and McFadden, J., concur.

Gilbert, Harrell, Sumerford & Martin, Mark D. Johnson, for appellee.

       That statute provides:
      After June 30,1994, no sole proprietorship, partnership, or corporation shall have the right to engage in the business of utility contracting unless such business holds a utility contractor license and there is regularly connected with such business a person or persons who holds a valid utility manager certificate issued under this chapter. . . .
      OCGA§ 43-14-8.2 (b)(1).

       Additionally, subsection (B) of OCGA § 43-14-2 (17) defines utility systems to include:
      Reservoirs and filtration plants, water and waste-water treatment plants, leachate collection and treatment systems associated with landfills, and pump stations, when the system distributes or collects a service, product, or commodity for which a fee or price is paid for said service, product, or commodity or for the disposal of said service, product, or commodity.