author: Peterson, Judge.

text:
    A16A1062.
    STROUD et al. v. HALL COUNTY.
    (793 SE2d 104)
   Peterson, Judge.

Roy Don Stroud (“Don Stroud”), as trustee of the Roy Don Stroud Revocable Living Trust, and his son, Mark Don Stroud (“Mark Stroud”), as trustee of the Myrtle Jean Stroud Revocable Living Trust (collectively, “the Strouds”), claim that Hall County’s maintenance of a road that abuts their property has caused flooding and other damage to it. The Strouds appeal from the trial court’s order granting summary judgment to the County on their claims. The trial court granted summary judgment on three alternative bases, finding that the Strouds could not prove causation, had failed to present evidence of damages, and were barred from bringing their claims by the statute of limitations. The Strouds challenge each of these conclusions on appeal, and also argue that the trial court erred by failing to address their inverse condemnation claim to the extent that it was based on trespass, including a claim arising from the County’s removal of ground vegetation from their property. Because we agree with the Strouds that the trial court erred in each of its three alternative bases for granting summary judgment — to the extent that the Strouds are claiming inverse condemnation as a result of how the County maintained the road in question — we reverse in part. However, we affirm to the extent that the Strouds are claiming that the road itself causes flooding on their property. In addition to reinstating claims based on allegations that the County’s maintenance of the road caused flooding on the Strouds’ property, we reverse the trial court’s implicit grant of summary judgment to the County on the Strouds’ claims that the County’s maintenance activities otherwise removed vegetation from the property, as we reject the County’s position that there is no evidence this happened more than once.

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. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Ass’n of Savannah v. Chatham Cty., 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So viewed, Don Stroud purchased and began living on the property in question (“the Property”) in 1969. The County owns and maintains Walter Stover Road (“the Road”), which runs along one side of the Property. The County officially accepted the Road as a county road in 1984, but Don Stroud testified that he has seen County trucks performing maintenance on the road ever since he purchased the Property.

Don Stroud testified that, at the time he purchased the Property, it was six to seven inches higher than the Road, and storm water naturally flowed off the Property and over the Road. In the early 1980s, Don Stroud began noticing ponding of rainwater in a section of yard on the Property The Strouds say that the area of ponding has increased over time.

The Strouds attribute this ponding to an increased elevation of the Road as a result of the County’s maintenance of the Road. As part of its maintenance of the Road, the County periodically scrapes the road and installs additional gravel on it. The Strouds claim the Road has become higher due to inadequate scraping when new gravel is added. Don Stroud testified that the County has been “using my yard for [a] detention pond” for 30 years. He testified that he did not know the elevation difference today, although at one point he opined that the Road may be about six inches higher than the Property In 2013, in an effort to stop the flow of water into the yard, Don Stroud had a wall erected about ten feet from the Road’s right-of-way He says the wall was significantly higher than the Road when installed, but the Road’s elevation has since risen to a height almost equal to that of the wall.

In addition to the flooding, the Strouds have complained about the County’s removal of vegetation from their property while maintaining the Road. In his deposition, Don Stroud testified that the County once used a “bush hog” that destroyed an area of ground cover on the Property. In a subsequent affidavit, Don Stroud testified that the “bush hogging incident” occurred in July 2012.

The Strouds say that the flow of water onto the Property causes erosion and deposits of mud, kills vegetation, results in downed trees, and prohibits the use of that part of the Property They contend that the County’s action diminished the value of the Property In their depositions, the Strouds both said that they did not know the current fair market value of the Property In his subsequent affidavit, Don Stroud offered two alternative measures of damages. First, he attached a $26,050 estimate from a landscape architect for raising the level of the Property such that water no longer would flow from the Road onto the Property Second, Don Stroud gave his opinion, “based on [his] review of other asking prices for building lots in Hall County,” that the value of the portion of the Property that the County has “totally taken” is worth not less than $10,000 as a building lot. Additionally, he opined that he has lost the value of at least $2,500 worth of vegetation and three trees worth about $10,500.

Don Stroud testified that he gave verbal notice to the County about the flooding problem shortly after he first observed it in the early 1980s. He complained periodically thereafter. In 2013, County engineering personnel gave County commissioners four options for addressing Don Stroud’s complaints. Three of the options involved installation of piping to assist with drainage; the other involved lowering and paving a short section of the Road. The commission did not implement any of those options.

On June 24, 2014, the Strouds brought a verified complaint against the County, asserting claims of trespass, nuisance, and inverse condemnation. The trial court granted the Strouds’ motion for a temporary injunction, prohibiting the parties from disturbing the status quo as to the flow of water between the Property and the Road, absent mutual agreement. Shortly thereafter, the County filed a motion for summary judgment, which the trial court granted. The trial court found that there was no evidence in the record that the County caused any elevation of the Road relative to the Property. The trial court found there was no competent evidence of damages because the landscaper’s estimate was hearsay and Don Stroud’s testimony about the value of his property as a building lot did not state a proper basis for his opinion. The trial court also found that the action was barred by the four-year statute of limitations because the claimed nuisance was a permanent one and any increased ponding was a change in degree, not a new harm that would restart the limitations period. The Strouds challenge each of these three alternative bases for summary judgment on appeal.

1. First, the Strouds argue that the trial court erred in concluding that there was no evidence that the County caused any elevation of the Road relative to the Property. We agree that the trial court erred.

“Causation is an essential element of nuisance, trespass, and negligence claims. To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant’s conduct and the alleged injury” Toyo Tire N. Am. Mfg., Inc. v. Davis, 299 Ga. 155, 158 (2) (787 SE2d 171) (2016) (citation and punctuation omitted). “The existence of proximate cause is a question of fact for the jury except in palpable, clear, and indisputable cases.” Bord v. Hillman, 335 Ga. App. 18, 21 (1) (780 SE2d 725) (2015) (citation and punctuation omitted).

Here, the trial court found that the record lacked evidence of causation because Don Stroud’s testimony that the Property used to be six to seven inches above the Road and now is below the Road (1) was “a conclusion ‘unsupported’by anything” and (2) did not amount to evidence that the County did anything to cause any change to the relative elevations of the property and the Road. However, “[a] witness knowledgeable of the facts, even though not an expert, may give his opinion as to whether or not there has been an increase in the flow of water onto property” Tyler v. Lincoln, 236 Ga. App. 850, 852 (1), n.4 (513 SE2d 6) (1999) (citation omitted) (reversed on other grounds by 272 Ga. 118 (527 SE2d 180) (2000)). And Don Stroud testified not only that the elevation changed, but also that the elevation of the Road was caused by the County’s repeated grading of the Road by adding gravel. His son gave similar testimony to that effect.

We repeatedly have held that a lay witness’ personal observations about water flow are probative of causation issues in a nuisance case. See Newton’s Crest Homeowners’ Ass’n v. Camp, 306 Ga. App. 207, 211-12 (1) (702 SE2d 41) (2010) (homeowners’ testimony that defendant’s work on nearby subdivision and road increased amount and velocity of stormwater, silt, and mud running onto their property and that excessive runoff caused damage “was not mere speculation or conjecture, but was competent and admissible evidence”); Green v. Eastland Homes, Inc., 284 Ga. App. 643, 645-47 (1) (644 SE2d 479) (2007) (lay testimony as to excessive runoff after development of adjoining property, along with expert testimony that the runoff was caused by the defendants’ development and construction activities, was sufficient causation evidence for plaintiff to avoid summary judgment); Tyler, 236 Ga. App. at 852 (1) (testimony of plaintiff and his expert, photographs, and letter from railroad company that controlled adjacent track would authorize jury to find that development of subdivision had increased flow of surface water and sediment onto plaintiffs’ property); DeKalb Cty. v. McFarland, 231 Ga. 649, 653 (2) (g) (203 SE2d 495) (1974) (no error to allow plaintiff to give his opinion as to whether the flow of water to his property has increased during the time he had owned the property); but see Bord, 335 Ga. App. at 23 (1) n.6 (citing Newton’s Crest but declining to consider, given sufficiency of expert testimony, whether plaintiffs’ personal observations standing alone are sufficient to raise issue of causation). The trial court erred in finding that the Strouds had pointed to insufficient evidence of causation to withstand the County’s motion for summary judgment.

2. The Strouds also argue that the trial court erred in ruling that their failure to prove damages meant the County was entitled to summary judgment. We agree with the Strouds on this point, as well.

The trial court faulted the Strouds’ evidence of damages as reliant on hearsay and Don Stroud’s unsupported opinion. However, a plaintiff’s failure to produce probative evidence of a specific amount of damages is not a viable basis for summary judgment. See Tyler, 236 Ga. App. at 852-53 (1). Rather, “[t]he law infers some damage from the invasion of a property right; and if no evidence is given of any particular amount of loss, it declares the right by awarding what it terms ‘nominal damages.’ ” Id. at 853 (1) (punctuation and footnote omitted). In another case alleging excessive water discharge, we found that the trial court had erred in granting summary judgment to developers on the plaintiffs’ nuisance, trespass, and negligence counts, notwithstanding the plaintiffs’ apparent failure to have presented a calculation of damages. Id. at 852-53 (l).

Here, any deficiencies in the evidence offered by the Strouds as to the measure of their damages is not a basis for summary judgment. Although of course some sort of injury is an element of a nuisance claim, the law will infer such an injury to the extent that the Strouds prove their property rights have been invaded. Moreover, the Strouds testified to specific injuries: erosion and deposits of mud, compromised trees and vegetation, and inability to use a portion of the Property The trial court therefore erred by granting summary judgment on this alternative ground.

3. The Strouds also argue that the trial court erred in granting summary judgment on the ground that their claim is barred by the statute of limitations. To the extent that the Strouds’ claim is based on the County’s maintenance of the Road causing flooding on the Property, we agree.

Under OCGA § 9-3-30(a), “[a]ll actions for trespass upon or damage to realty shall be brought within four years after the right of action accrues.” The accrual of a nuisance action depends on whether the alleged nuisance is classified as permanent or continuing. See City of Atlanta v. Kleber, 285 Ga. 413, 416-17 (1) (677 SE2d 134) (2009). A permanent nuisance is one in which “the destruction or damage [is] at once complete upon the completion of the act by which the nuisance is created[.]” Id. at 416 (1) (citation omitted). A permanent nuisance creates only one right of action, “which accrues immediately upon the creation of the nuisance, and against which the statute of limitations begins, from that time, to run.” Id. (citation omitted). A continuing nuisance, on the other hand, “is one which can and should be abated by the person erecting or maintaining it,” and “every continuance of [such a] nuisance is a fresh nuisance for which a fresh action will lie.” Id. (citation omitted). “[T]he statute of limitation will begin to run at the time of each continuance of the harm.” Oglethorpe Power Corp. v. Forrister, 289 Ga. 331, 333 (2) (711 SE2d 641) (2011). If a nuisance is not abatable, it is considered permanent; if it can and should be abated, it is not permanent. See id. If a nuisance is created “by some substantial and relatively enduring feature of the plan of construction or from an essential method of operation” of some infrastructure employed in necessary public service, “then it will usually not be abatable by injunction[.]” Id. at 334 (2) (quoting Restatement (Second) of Torts § 930, cmt. c) (emphasis omitted).

In cases involving flooding, Georgia courts have characterized claims based on the mere presence or installation of some fixed object, such as a pipe or culvert, as claims of a permanent nuisance. See Kleber, 285 Ga. at 416-17 (1); City of Columbus v. Cielinski, 319 Ga. App. 289, 292 (1) (734 SE2d 922) (2012). However, they have characterized allegations that improper maintenance of such a drainage system causes flooding as claims of a continuing nuisance. See Kleber, 285 Ga. at 417 (1); City of Columbus, 319 Ga. App. at 292 (1). Similarly, when a plaintiff alleged that a developer’s grading of an adjacent property caused water and dirt to flow onto the plaintiff’s property during rainstorms, our Supreme Court held that the allegation was one of a continuing nuisance. See Shaheen v. G & G Corp., 230 Ga. 646, 648 (2) (198 SE2d 853) (1973).

Applying these principles, to the extent that the Strouds are alleging that the existence of the Road itself is responsible for the flooding on the Property, their claims are of a permanent nuisance and are barred by the statute of limitations. On the other hand, to the extent that the Strouds’ nuisance claim is based on harm caused by the County’s maintenance of the Road, it is a claim of a continuing nuisance that is not barred by the statute of limitations. Like the claim over the maintenance of the drainage system in Kleber, a claim that periodic installation of new gravel with inadequate scraping has caused a nuisance would fall under the category of a continuing nuisance, at least to the extent that it could be abated by changes to the County’s maintenance practices or schedule. The trial court erred by granting complete summary judgment on that claim. The Strouds may press that claim to the extent it is based on the County’s “maintenance of [the Road] within the four years preceding their lawsuit[.]” Kleber, 285 Ga. at 417 (1). To the extent that the Strouds’ claim is based on harm experienced prior to that period, or harm caused by the existence of the Road itself, we affirm the grant of summary judgment to the County

4. The Strouds also argue that the trial court erred by neglecting to address its inverse condemnation claim to the extent that it was based on a trespass theory, as opposed to nuisance. The Strouds say that their trespass claim is premised on both flooding caused by the County’s maintenance of the Road, as well as the County’s removal of shrubbery and ground cover as part of that maintenance. Indeed, the trial court did not address the Strouds’ trespass theory separately in its order.

With respect to the Strouds’ trespass claims based on flooding, the County clearly argued in its motion for summary judgment that the statute of limitations had run on any claim based on the theory that the County had created ponding on the Strouds’ property. As noted above, a four-year statute of limitations governs trespass claims. See OCGA § 9-3-30(a). Our Supreme Court has treatedclaims of nuisance and trespass based on water incursion as synonymous. See Brand v. Montega Corp., 233 Ga. 32, 33 (1) (209 SE2d 581) (1974) (“In a surface-water invasion case, the continuing invasions amount to a continuing trespass which is the equivalent of a continuing nuisance.”). And in the ground water contamination context, we have applied the same analysis in determining whether a claim for continuing trespass or continuing nuisance was time-barred. See TriCounty Inv. Grp. v. S. States, Inc., 231 Ga. App. 632, 635-36 (1) (500 SE2d 22) (1998). Therefore, although the trial court erred in granting summary judgment to the County on the Strouds’ inverse condemnation claims to the extent they were based on evidence that County maintenance of the Road caused flooding, the trial court cannot be said to have committed a separate error in failing to address that claim separately under a trespass theory

The Strouds also press a trespass claim based on the County’s removal of ground cover from the Property during its maintenance of the Road. In his deposition, Don Stroud testified that on one occasion the County used a “bush hog” that destroyed an area of ground cover on the Property After the County moved for summary judgment, Don Stroud submitted his affidavit, based on which the Strouds claim that the County destroyed ground cover on the Property on multiple occasions. The County argues that there is no evidence of any destruction of ground cover other than one alleged bush hogging incident.

Decided October 20, 2016.

Hulsey, Oliver & Mahar, Julius M. Hulsey, T. Wesley Robinson, for appellants.

Freeman Mathis & Gary, Dana K. Maine, Coleen D. Hosack; Stewart, Melvin & Frost, William H. Blalock, Jr., for appellee.

The County argued before the trial court, and argues now on appeal, that a claim based on this single incident fails because (1) it does not rise to the level of the kind of repetitive or continuous act that is necessary to press a claim against the County and (2) it is barred by the applicable ante litem notice statute. But reading Don Stroud’s affidavit in the light most favorable to the Strouds, as we must, there is evidence of multiple incidents of ground cover removal by the County. Don Stroud testified in his affidavit that “[a]s part of its maintenance, the County has scraped and bush hogged portions of [the] Property, which has resulted in the damaging, taking and killing of certain vegetation[.]” Although Don Stroud in his affidavit goes on to say that a certain bush hogging incident occurred in July 2012, he does not say that this was the only time the County’s maintenance activities destroyed his vegetation. Given that the Strouds have presented evidence that the County’s maintenance activities destroyed vegetation on the Property on multiple occasions, the County’s arguments premised on the notion that there is evidence of only one such occasion are unavailing. By granting summary judgment based on the Strouds’ claims over these alleged incidents, the trial court erred.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Dillard, J., concur.

       The County cites City of Atlanta v. Demita, 329 Ga. App. 33, 37-38 (1) (762 SE2d 436) (2014) (physical precedent only) for the premise that a nuisance action based solely on a municipality’s maintenance of a street off which water flows will not lie. However, in that decision we distinguished situations in which a defendant’s conduct in maintaining a street “diverted or changed the flow of water so that it flooded adjacent property),]” Demita, 329 Ga. App. at 38 (1), which is the sort of conduct alleged by the Strouds here.

       The trial court relied on Martha K. Wayt Trust v. City of Cumming, 306 Ga. App. 790 (702 SE2d 915) (2010), for the proposition that a witness’ opinion as to value must show that the opinion is not merely the recitation of another’s opinion. But that decision, which involved an appeal of a judgment entered on a jury verdict, does not mandate summary judgment. Id. at 790. As explained above, a plaintiff’s failure to produce evidence of a specific amount of damages is not a viable basis for summary judgment.

       In the Strouds’ appellate briefing, they insist that the ponding is caused by the County’s “continuing improper maintenance of the Road.” Indeed, the Road was installed by a private entity, not the County. But in arguing that the nuisance is abatable and therefore continuing, the Strouds have pointed to four measures proposed by the County’s engineering personnel. None of these proposed remedies involved a change to how the Road is maintained.

       The trial court concluded that the nuisance alleged by the Strouds was a permanent one, then went on to find that the claim was barred by the statute of limitations because any increased ponding on the Property was not a new harm, but a change in degree of harm. “Aclaim for a permanent nuisance is not barred if ‘some new harm that was not previously observable occurred within the four years preceding the filing of their cause of action.’ ” Liberty Cty. v. Eller, 327 Ga. App. 770, 773-74 (2) (761 SE2d 164) (2014) (quot ing Forrister, 289 Ga. at 336 (3)). To the extent that the Strouds’ claim is that of a continuing nuisance, the consideration of whether the Strouds have experienced a “new harm” was misplaced. See Forrister, 289 Ga. at 335-36 (2)-(3) (considering argument of new harm only after determining that the nuisance complained of was a permanent one); Eller, 327 Ga. App. at 773-74 (2) (same). However, to the extent that the Strouds’ claim is that the Road itself creates a nuisance, it is a claim of a permanent nuisance, and the trial court was surely correct that increased flooding was not a new harm, but a change in degree of harm. An adverse change in the nature of harm experienced by a plaintiff — such as new types of noises or vibrations coming from a power plant — can constitute a new harm. See Forrister, 289 Ga. at 336 (3). But the nature of the alleged harm experienced by the Strouds — flooding on the Property — has remained the same over time.

       It may be difficult to distinguish damages caused by the existence of the Road itself from damages caused by maintenance of the Road. However, we need not address that question at this stage. See, e.g., DeKalb Cty. v. Orwig, 261 Ga. 137, 139 (3) (402 SE2d 513) (1991) (because lack of notice prevented county defendant from incurring liability for first instance of sewage backing up into plaintiff’s home, trial court must instruct jury on retrial that the damages for which the county is liable, if any, are only those damages arising from a second overflow).

       The County argues that, to the extent that the affidavit can be read in this way, the trial court was free to disregard it because it conflicted with Don Stroud’s deposition testimony that the County’s bush hogging destroyed an area of ground cover on the Property only once. Under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), a party’s self-contradictory testimony will be construed against him unless the party offers a reasonable explanation for the contradiction. Id. at 28-30 (1). However, affidavit testimony that the County’s scraping activities destroyed vegetation on the Property on multiple occasions would not contradict Don Stroud’s deposition testimony that a bush hog destroyed vegetation only once.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A16A1295.
    In the Interest of D. M. et al., children.
    (793 SE2d 422)
   Dillard, Judge.

The mother of D. M. and B. A. M., two minor boys, appeals from the juvenile court’s order terminating her parental rights. She argues that the juvenile court erred by terminating her rights when the evidence was insufficient to support the court’s decision. Because the evidence was sufficient as to some factors but the juvenile court failed to make the requisite findings of fact as to others, we vacate and remand for additional proceedings consistent with this opinion.

On appeal, we view the evidence in the light most favorable to the juvenile court’s disposition to determine whether any rational trier of fact could have found by clear and, convincing evidence that the mother’s parental rights should have been terminated. But as we have repeatedly emphasized, this deferential standard of review is tempered by the fact that

there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.

So viewed, the record reflects that D. M. (born August 3, 2009) and B. A. M. (born January 4, 2011) were first removed from their mother’s home in February 2011, after reports of domestic violence, unsanitary living conditions, the threat of imminent eviction, and the mother’s refusal to stay in a shelter to protect the children from their father. In April 2011, after a hearing, the juvenile court found by clear and convincing evidence that the children were deprived and placed them in the temporary custody of the Department of Family and Children Services (“the Department”).

In July 2011, the juvenile court approved of a case plan for the boys’ parents, which required the parents to, inter alia, complete parenting classes, obtain and maintain a source of income and housing, obtain childcare and assure that the children were properly supervised, complete a domestic-violence assessment, and complete and follow recommendations after a psychological evaluation. Then, in March 2012, the Department moved for an extension of the previous deprivation order so that it could monitor the mother’s progress with the case plan until she moved into a new home, though she had completed some aspects of the plan.

On April 24, 2012, nunc pro tunc March 28, 2012, the juvenile court entered an order returning custody of the children to the mother subject to an aftercare plan. However, on April 24, 2012, the court entered a second shelter-care order that once again placed the children in the Department’s custody following a report by law enforcement that then one-year-old B. A. M. had nearly been run over while playing in the middle of the street and while then two-year-old D. M. was playing by the edge of the road (both of the toddlers had been playing outside without any supervision by their mother). In addition to this troubling report, the Department discovered that upon the children’s return to the mother, she had failed to use either the approved child-care services arranged by the Department or the Department-approved backup child-care services offered by a friend. Instead, the mother left the children in the care of a person who had a criminal drug history and an “extensive” history with the Department. Furthermore, two Department representatives observed that the children were very dirty while in the mother’s care, that the upkeep of her home had suffered a drastic decline, and that she was once again facing eviction.

The same day that the children returned to the Department’s custody, the juvenile court approved of a second case plan for the mother, which required the mother to submit to another psychological evaluation and develop a stronger support system, in addition to goals that were identified in the previous case plan. Then, on June 7, 2012, nunc pro tunc May 16, 2012, the court found by clear and convincing evidence that the children were deprived.

The children were again returned to the mother in March 2013, and their return was subject to her completion of an aftercare case plan. While working on the goals of the aftercare plan, in August 2013, the Department received an unsubstantiated report that then two-year-old B. A. M. had a visible hand-print-shaped bruise on his face. D. M., who was then four years old, was interviewed and reported that the mother’s boyfriend had hit the child and called him a “lying baby” and his mother a “stupid bitch.” The Department eventually closed the case against the mother, however, due to her progress with the aftercare case plan.

But then, in December 2013, the Department received substantiated reports that D. M. had significant bruising on his bottom and back and a cut on his arm. D. M. reported that his mother had cut his arm with a knife and hit him, which he said she did when she was angry. When the Department spoke to the mother about these allegations, she responded that the cut to D. M.’s arm was caused by a chain link fence but admitted that the bruises were probably from a spanking she administered with a belt. Around this same time, the mother was also referred to a therapist for assistance in dealing with what was deemed problematic behavior by D. M., but the mother did not believe that D. M. needed services and instead minimized his behavior.

Finally, in April 2014, the Department received a report that D. M. had a burn mark on his foot, and that he had again been found in the middle of the road. And then, in May 2014, the Department received a report that a neighbor saw still four-year-old D. M. outside after dark, knocking repeatedly in an attempt to enter the residence, and that the mother appeared unconcerned when she eventually opened the door. The same neighbor also reported seeing D. M. nearly get hit by a car while in the road. Thereafter, when the Department presented her with a safety plan that required her agreement to properly supervise the children and keep them out of the road, the mother refused to sign it.

Ultimately, in July 2014, following a hearing on a dependency petition, the juvenile court found by clear and convincing evidence that the children were dependent and placed them in the Department’s custody for a third time. And in February 2015, the Department filed its petition seeking to terminate the mother’s parental rights, upon which a hearing was conducted in July 2015.

At the hearing on the petition to terminate, Department representatives and other witnesses recounted many of the facts set forth supra and, additionally, there was testimony that the mother cooperated with the Department when actively working on case plans but would immediately become uncooperative after the children were returned to her custody. One Department representative opined that the mother behaved appropriately toward her children in a controlled environment but quickly regressed without supervision, and that the allegations against the mother grew more serious with each removal from her care. As a result, the Department determined that it would no longer seek reunification between the mother and the children.

The boys’ foster parents also testified at the hearing and expressed their desire to adopt the children. They recounted the struggles they encountered when the boys first came to live in their home a little over one year prior to the hearing—particularly angry, defiant behavior by D. M., who was prone to hoarding, lying, nightmares, bed wetting, and daytime accidents. But both children’s behavior had significantly improved since beginning therapy. The foster parents also testified that they had stopped informing the children about impending visits with their mother until they were en route because there was a noticeable increase in defiant and regressive behavior before and after these visits, with D. M. the one to primarily exhibit this behavior, which B. A. M. would then mimic. Additionally, the foster father testified that the boys no longer referred to their mother as “mom,” but instead by her first name.

In addition to the foregoing, the juvenile court also considered deposition testimony from a licensed psychologist who conducted three separate evaluations of the mother in April 2011, June 2012, and September 2014. In April 2011, she diagnosed the mother with postpartum depression and deferred a diagnosis of personality disorder. The psychologist also noted that the mother seemed to be attracted to abusive, possessive men who abused substances, and she believed the mother’s low self-esteem was manifested by continuously making poor decisions. Finally, the psychologist noted that while the mother was motivated to regain custody of the children, she was also at a high risk for abusive parenting due to inappropriate expectations of children (i.e., the mother believed the children could care for themselves without supervision) and lacked the ability to be empathetic.

During the second evaluation in June 2012, the psychologist no longer believed the mother suffered from postpartum depression, but again observed that she displayed traits of dependent and avoidant-personality disorder. She also noted that the mother trusted others too quickly, was prone to procrastination, had not made progress on recommendations from the April 2011 report, was defensive about the possibility of suffering from psychological problems, and was extremely sensitive to criticism.

Finally, during the September 2014 evaluation, the mother denied having any problems, which suggested to the psychologist that she had not benefitted from the many services provided by the Department and was not making progress. And this time, the psychologist also confirmed that the mother was suffering from a personality disorder. According to the doctor, the mother’s personality disorder impaired her functioning and resulted in rigidity to change, which explained the mother’s inability to make lasting change and her immediate relapses to past behaviors. Thus, the psychologist concluded that providing the mother with additional services would not improve her prognosis because she had already been provided with these services without any improvement. The psychologist ultimately recommended against returning the children to the mother’s custody unless another individual could be present in the home and assume primary responsibility for parenting the children, and thus, she recommended the termination of the mother’s parental rights.

After considering all of the foregoing, the juvenile court terminated the mother’s parental rights on October 22, 2015. This Court thereafter granted the mother’s application for discretionary appeal.

At the outset, we note that the new Juvenile Code applies in this case because the State’s petition to terminate parental rights was filed in February 2015. And like the former Juvenile Code, Georgia’s new Juvenile Code provides for a two-step process to determine whether terminating parental rights is warranted in a particular case.

First, as outlined in OCGA § 15-11-310 (a), the juvenile court must find that one of five statutory grounds for termination has been satisfied. And here, the statutory ground at issue is OCGA § 15-11-310 (a) (5), which provides:

A child is a dependent child due to lack of proper parental care or control by his or her parent, reasonable efforts to remedy the circumstances have been unsuccessful or were not required, such cause of dependency is likely to continue or will not likely be remedied, and the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to such child.

Then, if the foregoing statutory grounds for termination have been met, the juvenile court must determine whether termination is in the child’s best interests after considering several specified factors. Of course, in all termination proceedings, “the standard of proof to be adduced to terminate parental rights shall be by clear and convincing evidence.”

Importantly, our analysis is guided by an overarching constitutionally based principle that the termination of parental rights is a “remedy of last resort which can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue.” Indeed, as our Supreme Court has emphasized, “[o]ne who is subject to the termination of parental rights cannot be equated to an individual who faces an interruption of custody” because termination “is a much more severe measure” that acts “to address the most exceptional situation of a deprived child and that child’s continuing deprivation.” Put another way, “it is one thing to remove a child from a parent’s custody for reasons of neglect, but quite another to permanently and irrevocably sever the natural parent-child relationship.” And there is a reason for this crucial distinction: “Terminating a parent’s rights, and thus forever foreclosing the possibility of restoring the natural parent-child relationship, is governmental extinguishment of the parent and child’s constitutional right to familial relations.” There is, then, no judicial determination which has “more drastic significance than that of permanently severing a natural parent-child relationship.” Accordingly, “compelling facts” are required to terminate parental rights. And while the juvenile court may consider past parental conduct in deciding whether the cause of deprivation is likely to continue, evidence of past unfitness, standing alone, is “insufficient to terminate the rights of a parent in her natural child.” Rather, clear and convincing evidence of “present unfitness is required.” Finally, this Court has repeatedly recognized that the constitutional right to “raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.” With these guiding principles in mind, we turn now to the mother’s enumerations of error.

1. First, the mother argues that there was insufficient evidence to show that D. M. andB. A. M. were dependent due to alack of proper parental care and control and that, if the children were dependent, there was insufficient evidence to show that any dependency was likely to continue. We disagree as to both contentions.

(a) The children were dependent due to a lack of proper parental care and control. First, the current version of OCGA § 15-11-311 provides that, inter alia, in determining whether a child lacks proper parental care or control, the trial court shall consider, but is not limited to, “[a] medically verified deficiency of such child’s parent’s physical, mental, or emotional health that is of such duration or nature so as to render such parent unable to provide adequately for his or her child” and “[pjhysical, mental, or emotional neglect of his or her child or evidence of past physical, mental, or emotional neglect by the parent of such child or another child of such parent.” Further, this Code section provides that in determining whether a child who is not in the parent’s custody and care is without proper parental care and control, the trial court shall also consider, though is not limited to considering, whether the parent, without justifiable cause, has “failed significantly for a period of six months prior to the date of the termination hearing” to (1) develop and maintain a parental bond with the child in a meaningful, supportive manner; (2) provide for the care and support of the child as required by law or judicial decree; and (3) comply with a court-ordered plan that was designed to reunite the parent and the child.

In the case sub judice, the mother did not appeal from the juvenile court’s prior determinations that the children were deprived and/or dependent. Thus, we assume that the evidence was sufficient to show deprivation/dependency at those times. And after reciting the facts that formed the basis of the prior findings of deprivation and/or dependency, the court concluded that they were “compelling evidence of past and,present parental unfitness.” Specifically, the trial court highlighted the repeated instances of inadequate food, clothing and shelter; inadequate supervision, including the very young children being found unattended in the street on multiple occasions throughout the mother’s history with the Department; the mother’s resistance toward acquiring recommended therapy for D. M. due to her denial that he needed same; injuries that were sustained by the children; and the psychologist’s ultimate recommendation that the mother not be reunited with the children. As previously noted, the psychologist based that recommendation upon her finding that the mother’s personality disorder prevented her from making lasting changes and resulted in immediate regression each time the children were returned to her custody, and she also opined that the diagnosis explained the mother’s lack of progress despite the Department providing numerous services to her over the years.

Accordingly, there was sufficient evidence that D. M. and B. A. M. were dependent at the time of the termination hearing due to a lack of proper parental care and control.

(b) The children’s dependency is likely to continue or will not likely be remedied. After detailing the foregoing facts (which provided a basis for finding dependency due to a lack of proper parental care and control), the trial court noted that even after receiving extensive services, the mother “has been unable to demonstrate an ability to care for her children once they are returned to her care.” The evidence supported this finding because, again, the mother’s inability was explained by the psychologist as being due to a personality disorder, which the doctor said impaired functioning, resulted in rigidity and/or inability to change, and resulted in the mother’s immediate relapses to past inappropriate behaviors when no longer under Department supervision. The court also noted that the mother had been uncooperative with regard to the recommendation that D. M. receive the counseling he needed for his emotional well being. There was, then, evidence to support the court’s finding that “the conditions of dependency of the child[ren] remain and are not likely to be remedied . . . .”

2. In her final enumerations of error, the mother argues that there was insufficient evidence that any continued dependency was likely to cause serious physical, mental, emotional, or moral harm to D. M. and B. A. M., and that there was insufficient evidence that termination of her rights was in the boys’ best interests. Because the trial court failed to provide the requisite findings of fact, we must vacate and remand to the trial court to make appropriate findings.

(a) The dependency was likely to cause serious physical, mental, emotional, or moral harm. It is well established that an order terminating parental rights must “contain explicit findings supporting the conclusion that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” Indeed, the propriety of a termination order is “inextricably intertwined with one of this republic’s oldest and most sacred fundamental liberties—the right to maintain familial relations and integrity.” To this end, a mere recitation that this legal requirement was met will not suffice. Instead, the juvenile-court judge must ascertain the facts and state “not only the end result of that inquiry but the process by which it was reached.” More precisely, the juvenile court must make explicit findings of fact with regard to the child or children at issue, rather than a hypothetical child placed in the subject child or children’s situation. And here, the juvenile court did the latter. Indeed, without providing any specific findings of fact based upon the evidence before it, the juvenile court merely cited to generalized concerns of doubt, uncertainty, hesitancy in life, and the need for stability and permanence. This will not do. In a termination proceeding,

each child in these circumstances deserves and requires a full, separate, and thoughtful review by the juvenile court of the issues relating to [the child], and this cannot and will not happen if the child is treated as if she were merely part of some detached hypothetical inquiry—rather than as what she actually is, a human being with inherent dignity and worth.

Without specific factual findings as to D. M. and B. A. M. on the question 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.” Accordingly, even though we are extremely troubled by the mother’s history with the Department, we are nevertheless required to vacate the judgment of the juvenile court and remand the case with the direction that the court make appropriate and explicit findings of fact and conclusions of law, and enter a new judgment based on these findings and conclusions.

(b) Termination was in the children’s best interests. Having determined that it is necessary to remand for further proceedings on an issue that is a prerequisite for considering whether the juvenile court erred in finding that termination of the mother’s parental rights was in the children’s best interests, we cannot reach that question. However, we note that the juvenile court’s order is deficient in this area as well, again providing only a mere recitation that the court considered the relevant factors as to the children’s best interests without any specific findings as to D. M. and B. A. M. For the same reasons as those set forth in Division 2 (a) supra, the juvenile court, should it reach this question again on remand, must provide appropriate and specific findings of fact on this issue as well.

Decided October 20, 2016.

Andrew W. Pope, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Robert D. Jewell, Assistant Attorneys General, for appellee.

For all of the foregoing reasons, we vacate the juvenile court’s judgment and remand for further proceedings consistent with this opinion.

Judgment vacated and case remanded with direction.

Phipps, P. J., and Peterson, J., concur.

       The juvenile court also terminated the rights of the boys’ father, but he is not a party to this appeal.

        In the Interest of J. A. B., 336 Ga. App. 367, 368 (785 SE2d 43) (2016).

        Id. (punctuation omitted); see also In the Interest of S. O. C., 332 Ga. App. 738, 743 (774 SE2d 785) (2015); In the Interest of C. J. V., 323 Ga.App. 283, 283 (746 SE2d 783) (2013); In the Interest of M. A., 280 Ga.App. 854, 856 (635 SE2d 223) (2006); In the Interest of T. E. T., 282 Ga. App. 269, 269-70 (638 SE2d 412) (2006); In the Interest of T. J. J., 258 Ga. App. 312, 314 (574 SE2d 387) (2002). With this in mind, we note that the mother’s brief fails to comply with the rules of this Court, which require an appellant’s brief to contain “argument and citation of authorities.” Court of Appeals Rule 25 (a) (3); see also Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”). Our review of this appeal was hindered by the appellant’s failure to cite to a single legal authority beyond the new provision in the Juvenile Code.

       D. M. and B. A. M.’s father consented to nonreunification with the children.

       The Department representative met with the mother while the mother was at D. M.’s school, and the representative noticed that while the mother was inside, she left B. A. M. and another unidentified small child unattended in her car with the engine running.

        See Ga. L. 2013, p. 294, § 5-1 (“This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date.”).

        Compare OCGA § 15-11-310 with OCGA § 15-11-94 (2013).

        See OCGA § 15-11-310 (b) (l)-(4).

       OCGA § 15-11-303.

        In the Interest of T. Z. L., 325 Ga. App. 84, 94 (1) (a) (751 SE2d 854) (2013) (punctuation omitted); accord In the Interest of J. V J., 329 Ga. App. 421, 424 (765 SE2d 389) (2014); In the Interest of C. J. V., 323 Ga. App. at 287.

        In the Interest of A. C., 285 Ga. 829, 833 (2) (686 SE2d 635) (2009); see also In the Interest of S. O. C., 332 Ga. App. at 742.

        In the Interest of S. O. C., 332 Ga. App. at 742.

        Id. at 742-43. Indeed, unlike a custody proceeding, the termination of a natural parent’s right to familial relations with his or her child “leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important decision affecting the child’s religious, educational, emotional, or physical development.” Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C., 452 U. S. 18, 39 (I) (A) (101 SCt 2153, 68 LE2d 640) (1981) (Blackmun, J., dissenting).

        In the Interest of L. J. L., 247 Ga. App. 477, 479 (543 SE2d 818) (2001) (punctuation omitted); In the Interest of S. O. C., 332 Ga. App. at 743; In the Interest of J. V J., 329 Ga. App. at 429; In the Interest of K. J., 226 Ga. App. 303, 306 (1) (486 SE2d 899) (1997).

         In the Interest of J. V. J., 329 Ga. App. at 424 (punctuation omitted); accord Carvalho v. Lewis, 247 Ga. 94, 94 (274 SE2d 471) (1981); see also In the Interest of S. O. C., 332 Ga.App. at 743; In the Interest of K. J., 226 Ga. App. at 306 (1).

        In the Interest of D. W., 294 Ga. App. 89, 92 (1) (c) (668 SE2d 533) (2008); accord In the Interest of J. V J., 329 Ga.App. at 424; In the Interest of A. H., 289 Ga.App. 121, 123 (1) (a) (656 SE2d 254) (2008).

        In the Interest of C. J. V, 323 Ga.App. at 285 (punctuation omitted); accord In the Interest of J. V. J., 329 Ga.App. at 424; In the Interest of D. L. T. C., 299 Ga.App. 765, 769 (1) (684 SE2d 29) (2009).

        In the Interest of C. J. V., 323 Ga.App. at 285 (punctuation omitted); accord In the Interest of J. V. J., 329 Ga. App. at 424-25; In the Interest of D. L. T. C., 299 Ga. App. at 769 (1).

        In the Interest of J. V. J., 329 Ga.App. at 425 (punctuation omitted); accord In the Interest of C. J. V., 323 Ga.App. at 283; In the Interest of J. C., 242 Ga. 737, 738 (1) (251 SE2d 299) (1978); In the Interest of M. A., 280 Ga. App. at 856; In the Interest of T. J. J., 258 Ga. App. at 314.

       The mother does not argue that there was insufficient evidence that “reasonable efforts to remedy the circumstances have been unsuccessful or were not required” and, accordingly, we do not address that factor of OCGA § 15-11-310 (a) (5). See In the Interest of J. V. J., 329 Ga.App. at 425 n.15 (noting that because mother only challenged the sufficiency of the evidence as to one factor in termination of her rights, this Court did not consider the other factors because those arguments were abandoned).

       OCGA § 15-11-311 (a) (1).

       OCGA § 15-11-311 (a) (5).

       OCGA § 15-11-311 (b) (l)-(3).

       Because the Department initiated proceedings and the court made findings of deprivation and/or dependency in April 2011, May 2012, and July 2014, both the new and old Juvenile Code applied at different times. See supra note 6.

        See In the Interest of T M., 329 Ga. App. 719, 723 (1) (a) (766 SE2d 101) (2014) (“For purposes of our revie w, we assume that the evidence was sufficient to show that [the child] was deprived since the mother did not appeal that determination.”); In the Interest of R. A. R., 259 Ga. App. 680, 684-85 (1) (577 SE2d 872) (2003) (“The children’s deprivation was established by orders of the juvenile court, which were not appealed. The mother is therefore bound by the findings in those orders.”).

       (Emphasis supplied).

       The trial court also noted that the mother had been ordered to pay child support while the children were in foster care but that she had failed to regularly pay and was currently in arrears. But see In the Interest of J. V. J., 329 Ga. App. at 424-25 (“A parent’s poverty alone is an insufficient basis to terminate parental rights.”); In the Interest of C. J. V., 323 Ga. App. at 286-87 (“[I]t is well established that poverty alone is not a basis for termination.” (punctuation omitted)).

        See In the Interest of P. D. W., 296 Ga.App. 189, 194 (1) (b) (674 SE2d 338) (2009) (holding that mother’s lack of parental care and control were the cause of deprivation when the mother, inter alia, failed to undergo court-mandated drug treatment and provide adequate housing); In the Interest of R. A. R., 259 Ga. App. at 684-85 (1) (holding that mother’s lack of parental care and control were the cause of deprivation when, inter alia, there was evidence that mother suffered from psychological disorder that affected her ability to adequately care for her children, and she failed to provide adequate housing and medical care for her children).

        See In the Interest of R. N. H., 286 Ga. App. 737, 741-42 (1) (c) (650 SE2d 397) (2007) (holding that trial court’s finding that deprivation was likely to continue was supported by the fact that, inter alia, father’s drug abuse remained untreated, father had been incarcerated repeatedly, and the family still did not have adequate housing for children); In the Interest of J. S. B., 277 Ga.App. 660, 662-63 (2) (c) (627 SE2d 402) (2006) (holding that trial court’s finding that deprivation was likely to continue was supported by the fact that mother was shown to have difficulty developing parenting skills, counselor testified that she did not believe mother would be able to develop appropriate skills in light of mental and emotional deficiencies, and mother failed to consistently participate in treatment for her mental-health condition).

        In the Interest of D. T. A., 312 Ga.App. 26, 33 (1) (d) (717 SE2d 536) (2011); accord In the Interest of K. J., 226 Ga. App. at 307 (2) (b); see Beasley v. Jones, 149 Ga. App. 317, 319 (1) (254 SE2d 472) (1979) (reversing trial court when termination order did not specify facts supporting court’s conclusion that child would likely suffer serious emotional harm).

        In the Interest of J. E., 309 Ga. App. 51, 63 (711 SE2d 5) (2011) (Dillard, J., dissenting); see also Moore v. City of East Cleveland, Ohio, 431 U. S. 494, 503-04 (III) (97 SCt 1932, 52 LE2d 531) (1977) (plurality opinion) (“[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”).

        In the Interest of D. T. A., 312 Ga. App. at 33 (1) (d); accord In the Interest of K. J., 226 Ga. App. at 307 (2) (b); see also In the Interest of G. K. J., 187 Ga. App. 443, 445 (3) (370 SE2d 490) (1988) (“The juvenile court cannot make a bare recital as to a finding of the existence of parental misconduct or inability.”).

        In the Interest of D. T. A., 312 Ga. App. at 33 (1) (d) (punctuation omitted); accord In the Interest of J. M., 251 Ga.App. 380, 383 (4) (554 SE2d 533) (2001); Beasley, 149 Ga.App. at 319 (1).

        See In the Interest of J. E., 309 Ga. App. at 66 (Dillard, J., dissenting) (”[W]e have repeatedly held that a juvenile court is required to make explicit findings of fact that the child at issue—rather than some hypothetical child placed in the subject child’s situation—will suffer or is likely to suffer serious harm as a result of the continued deprivation.”); accord In the Interestof C. J. V., 323 Ga.App. at 292 (Dillard, J., concurring fully and specially); In the Interest of E. G., 315 Ga.App. 35, 48 (726 SE2d 510) (2012) (Dillard, J., concurring fully as to Div. 3 and in judgment only as to Divs. 1 and 2); In the Interest of A. E. S., 310 Ga.App. 667, 671 (714 SE2d 148) (2011) (Dillard, J., concurring specially).

         In the Interest of J. E., 309 Ga. App. at 66-67 (Dillard, J., dissenting) (punctuation omitted); see also Crook v. Ga. Dep’t of Human Res., 137 Ga.App. 817, 819 (224 SE2d 806) (1976) (“If [the juvenile court] is required to make the explicit statutory findings, the tendency to rely upon individualistic and subjective notions of morality or sociological advantage will be lessened.”).

        See In the Interest of D. T. A., 312 Ga. App. at 33 (1) (d).

        See id. at 34 (1) (d) (vacating and remanding for appropriate findings of fact); In the Interest of T. S., 310 Ga. App. 100, 104 (2) (712 SE2d 121) (2011) (same); In the Interest of S. W. J. P. D., 275 Ga. App. 272, 273 (620 SE2d 497) (2005) (same).

        See In the Interest of D. T. A., 312 Ga.App. at 34(2) (“Having found it necessary to remand this case for further proceedings as to issues that are prerequisites for consideration of the question whether the court erred in finding that the termination of parental rights was in the children’s best interest, we cannot reach that question.”); see OCGA § 15-11-310 (a), (b) (providing that consideration of the child or children’s best interests occurs only after the court determines that the statutory grounds for termination have been met).

        See OCGA § 15-11-310 (b) (l)-(4).


author: PHIPPS, Presiding Judge.

text:
    A16A1120.
    GATEWAY COMMUNITY SERVICE BOARD v. BONATI.
    (793 SE2d 111)
   PHIPPS, Presiding Judge.

In January 2015, the trial court entered a final judgment in favor of Frank Bonati on a petition for declaratory judgment filed by Gateway Community Service Board (“Gateway”) and in favor of Bonati on his counterclaims for damages and attorney fees. Gateway filed a motion for new trial, which the trial court denied. On appeal, Gateway claims, inter alia, that the trial court erred in failing to hold a hearing before denying its motion for new trial. We agree.

1. “Uniform Superior Court Rule 6.3 requires, unless otherwise ordered by the court, that a motion for new trial in a civil action shall be decided by the trial court only after an oral hearing, even if the moving party does not request such a hearing.” Where “the trial court denies a motion for new trial in a civil case without issuing an order excepting the motion from this procedural requirement, and without holding the mandatory hearing,” we must reverse the case and remand for the trial court to comply with Rule 6.3 before disposing of the motion.

The record contains no evidence of a hearing in this case, and Bonati does not contend on appeal that a hearing was, in fact, held. Moreover, the order denying the motion for new trial does not reference Rule 6.3 or Gateway’s right to an oral hearing, and the court did not enter any other order excepting the motion from oral argument. We must therefore reverse and remand for further proceedings.

Decided October 25, 2016.

Owen Gleaton Egan Jones & Sweeney, Charles J. Cole, for appellant.

The Sanders Law Firm, Richard D. Sanders, Adam M. Walters; Robert W. Guy, Jr., for appellee.

2. Given our ruling in Division 1, supra, we do not address Gateway’s other enumerated errors.

Judgment reversed and case remanded.

        Triola v. Triola, 292 Ga. 808 (741 SE2d 650) (2013) (citations and punctuation omitted).

       Id. (citation and punctuation omitted).

       See id.

       See id.

        See Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 592 (2) (690 SE2d 397) (2010).


author: Rickman, Judge.

text:
    A16A1420.
    ESQUIBEL v. THE STATE.
    (791 SE2d 582)
   Rickman, Judge.

Juan Bernando Esquibel was tried by a jury and convicted of possession of a firearm by a convicted felon, reckless conduct, and making a false statement. On appeal, Esquibel contends that the evidence was insufficient to support his conviction of making a false statement beyond a reasonable doubt. For the following reasons, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Hall v. State, 335 Ga. App. 895 (783 SE2d 400) (2016).

So viewed, the evidence showed that on the night of November 16, 2013, a woman was standing in the parking lot of a local shopping mall when she heard something that “sounded like fireworks.” She turned around and saw a young male running from a restaurant with a black handgun in his hand. She observed the male get into a white Volkswagen Jetta with a broken taillight. The male then drove past the restaurant and around to the front of a department store and fired off two more shots before driving away. A police officer with the Dalton Police Department responded to the scene and located four .380 caliber shell casings in front of the restaurant and another one in front of the department store.

A waitress who was working at the restaurant recalled serving Esquibel beer for several hours on the night of the shooting. Due to Esquibel’s drinking, the waitress had concerns about him driving and offered to call him a taxi. Esquibel declined the waitress’s offer and told her that he lived right across the street from the shopping mall.

At some point, the waitress heard gunshots coming from the parking lot of the restaurant. She heard two gunshots and then, a “couple of seconds later,” another two gunshots. The waitress looked out the door and saw the back of a white Volkswagen driving away.

After being shown photographs by a law enforcement officer, the waitress identified Esquibel as the person she served in the restaurant the evening of the shooting. The waitress also identified Esqui-bel on a surveillance video taken from the restaurant. The woman who was in the parking lot at the time of the shooting was shown a still photograph of Esquibel taken from the surveillance video, and she testified that the person in the photograph was wearing clothing consistent with the clothing worn by the shooter.

The investigating detective who was assigned to work on the case received a phone call from an anonymous source who told him where Esquibel likely lived and that Esquibel drove a white Volkswagen Jetta. The residence was located near the shopping mall, and a records search of the address came back to Esquibel and his mother. At some point, the detective drove by the residence and saw a white Volkswagen Jetta. The vehicle was registered to Esquibel’s sister.

After calling places where he believed Esquibel may have been employed, the detective received a telephone call from Esquibel who identified himself on the call. A few hours later, Esquibel came to the police department to meet with the detective. During that interview, Esquibel told the detective that he did not have a car.

The investigator searched Esquibel’s home pursuant to a search warrant, and a holster was found in Esquibel’s bedroom that was consistent with the use of a .380 pistol. A bullet was located in a drawer in Esquibel’s mother’s room. The bullet was of the same caliber as the casings recovered from the shopping mall parking lot. The vehicle registration for the white Volkswagen Jetta was located in Esquibel’s bedroom. While executing the search warrant, a lieutenant was told by Esquibel’s brother that earlier in the day Esquibel drove the Jetta to his apartment, and then he drove Esquibel to the police department. Keys to the Jetta were located in Esquibel’s brother’s vehicle.

Esquibel’s mother testified that “sometimes” Esquibel drove the Jetta and that he would lend the vehicle to his friends. Esquibel’s sister testified that she agreed to sell the Jetta to Esquibel and that he began to drive the vehicle. Esquibel made a couple payments to her for the Jetta.

After the Jetta, with a brake light that was “not functioning properly,” was found at Esquibel’s brother’s apartment, it was searched pursuant to a search warrant. Inside the vehicle, the following items were recovered bearing Esquibel’s name: mail, a prescription bottle, a credit card, an insurance card, pay stubs, a medical form, and a receipt from a pawn shop. These items bore dates ranging from before and after the shooting.

Esquibel was tried by a jury and found guilty of possession of a firearm by a convicted felon, reckless conduct, and making a false statement. Esquibel timely filed a motion for new trial, which was denied. It is from this order that Esquibel now appeals.

Esquibel contends that the evidence was insufficient to support his conviction for making a false statement beyond a reasonable doubt. Specifically, Esquibel argues that the State failed to prove that his statement to the investigator that he did not “have” a car was literally false when it was made.

A person who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation . . . knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.

OCGA § 16-10-20. The indictment in this case charged Esquibel with “knowingly and willfully mak[ing] a false statement, to wit: that he does not have a car” to the Dalton Police Department.

Citing Thornton v. State, 301 Ga. App. 784, 791 (3) (a) (689 SE2d 361) (2009), Esquibel argues that when he told the investigator he did not “have” a car, the term “have” could be interpreted to mean to hold, possess, or own and, thus, the State failed to prove that his statement was literally false at the time he uttered it. However, in Thorn ton, the indictment alleged that the defendant made a false statement at trial when he referred to a vehicle as “his vehicle,” while the evidence established only that the defendant referred to the vehicle as “my” or “mine.” Id. This Court held that because “my” and “mine” are pronouns that can “be used to demonstrate either possession or ownership,” the State failed to prove that the defendant “ever affirmatively stated that he owned the [vehicle].” (Emphasis in orginal.) Id. As noted by the trial court in its order denying Esquibel’s motion for new trial, in this case, there is no dispute between the language in the indictment and the evidence presented at trial. The indictment accused Esquibel of telling the investigator that he did not have a car, and the evidence at trial was that Esquibel told the investigator that he did not have a car.

Moreover, there was ample evidence for the jury to find that Esquibel possessed and held the Jetta before and after the shooting. His mother testified that he drove the Jetta and let friends borrow it. His sister testified that he drove the Jetta. His brother told a lieutenant that Esquibel drove the Jetta to his apartment prior to speaking with the investigator and that the Jetta was located at that apartment. As discussed supra, the Jetta contained multiple items that identified Esquibel, including documents with dates ranging from before and after the shooting. Furthermore, there was also evidence from which a jury could find that Esquibel owned the Jetta. Esquibel’s sister testified that she had agreed to sell the Jetta to Esquibel, he had already made a couple payments for it, and the Jetta’s vehicle registration was found in Esquibel’s bedroom.

We conclude that the evidence was sufficient for a rational trier of fact to find Esquibel guilty beyond a reasonable doubt of making a false statement. See generally Sneiderman v. State, 336 Ga. App. 153, 157-158 (2) (784 SE2d 18) (2016), disapproved on other grounds, Quiller v. State, 338 Ga. App. 206, 209, n. 3 (789 SE2d 391) (2016); see also Simpson v. State, 327 Ga. App. 516, 518-519 (1) (759 SE2d 590) (2014); Watkins v. State, 191 Ga. App. 87, 89 (2) (381 SE2d 45) (1989).

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

Decided September 15, 2016

Reconsideration denied October 26, 2016

Michael R. McCarthy, Margaret E. Heinen, Brandon A. Bullard, for appellant.

Herbert M. Poston, Jr., District Attorney, John S. Helton, Assistant District Attorney, for appellee.


text:
    A16A0734.
    GARDNER et al. v. CLARK.
    (793 SE2d 439)
   Rickman, Judge.

F ollowing the death of their mother in a fire at a mobile home she was leasing, Quanterrious Gardner, individually and as administrator of his mother’s estate, and his siblings filed suit against Randall T. Clark, the owner of the mobile home, alleging claims of wrongful death, pain and suffering, funeral expenses, and punitive damages. The trial court granted Clark’s motion for a directed verdict as to all of the appellants’ claims. Gardner and his siblings contend that the trial court erred by granting Clark’s motion for directed verdict. For the following reasons, we agree and reverse.

A directed verdict is authorized only when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. A grant of directed verdict is a ruling that the evidence and all reasonable deductions therefrom demand a particular verdict. It is illogical to say such a finding will be upheld if there is any evidence to support it. A grant of directed verdict can be upheld only where we determine that all the evidence demands that verdict. This requires a de novo review. It is correct to say that a directed verdict cannot be granted if there is any evidence to support a contrary verdict, but there cannot be “some evidence” that all the evidence demands a particular verdict.

(Punctuation and footnote omitted.) Moore v. Singh, 326 Ga. App. 805 (755 SE2d 319) (2014).

So viewed, the evidence presented at trial showed that Gardner’s mother, Gloria Westbrook, leased a mobile home from Clark. West-brook moved into the mobile home before the utilities had been turned on. On a cold night in November 2009, Gardner and his uncle started a fire in Westbrook’s fireplace. At some point, Gardner went back to his residence and observed that Westbrook’s mobile home was onfire. Gardner’s fiancée called 911. Gardner ran back to Westbrook’s mobile home and observed that her mobile home was “fully engulfed” in flames.

Gardner testified that Westbrook died in the fire. Gardner also testified that prior to the fire, Westbrook had asthma, sleep apnea, and could only walk short distances without the assistance of the cane, but was otherwise in good health.

Clark testified that he agreed that Westbrook died as a result of the fire at the mobile home he owned. Clark also testified that it was his responsibility to check the mobile homes he leased to ensure that they are compliant with the current codes and that tenants rely on him to rent safe homes. Clark agreed that it was important for mobile homes to be equipped with working smoke detectors because “smoke detectors save lives.” Clark testified that in the mobile home West-brook leased, there were electric smoke detectors installed. Clark acknowledged that without electricity, electric smoke detectors would not work in Westbrook’s mobile home. Clark testified that he was not certain what the Georgia law was with regard to battery operated smoke detectors. Clark admitted that it would be “irresponsible” for a landlord to be unaware of laws regarding the installation of smoke detectors.

An arson investigator, who was qualified as an expert in fire investigations, testified that he responded to the fire at the mobile home Westbrook was leasing. The investigator testified that he did not find any evidence of a hearth, which is a safety barrier, and that it was his opinion that smoke detectors were not present in the home because he did a thorough search and was not able to locate any remnants of a smoke detector. The investigator agreed that a person is more likely to survive a fire if smoke detectors are present.

The investigator also testified that Westbrook was found in the corner of her bedroom. The investigator testified that when victims are found in the corner of a room it indicates to him that “the person was alive at the time of the fire and the person was trying to actually get out of whatever structure they were in.” Westbrook sustained “charring and more burning to the lower extremities of [her] body.” The investigator testified that he read Westbrook’s autopsy report and learned that she died as a result of the fire.

At the close of Gardner and his siblings’ case, Clark moved for a directed verdict, which the trial court granted. In its order granting the motion for directed verdict, the trial court found:

At the close of the evidence offered by [Gardner and his siblings], [Clark] moved the court for an order directing a verdict in favor of [Clark] and entry of judgment for [Clark] and it appearing to the court that there is no conflict in any evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands, as a matter of law, a verdict for [Clark].

Gardner and his siblings contend that the trial court erred by granting a directed verdict in favor of Clark. Specifically, they allege that the trial court erred when it pronounced the following prior to entering a directed verdict, “[t]here is no evidence, no expert evidence as to the cause of death of Ms. Westbrook. And there has been no medical doctor that testified, no medical examiner, no anything that testified to the cause of death. It doesn’t show that she didn’t die from a heart attack or any other type thing.”

[E]xpert evidence typically is not required to prove causation in a simple negligence case. However, expert evidence is required where a “medical question” involving truly specialized medical knowledge (rather than the sort of medical knowledge that is within common understanding and experience) is needed to establish a causal link between the defendant’s conduct and the plaintiff’s injury.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622 (697 SE2d 779) (2010).

In Cowart, the Supreme Court of Georgia gave the following guidance regarding how to determine whether or not a simple negligence claim involves a “medical question” thus requiring expert testimony:

The simple term “medical question” may not be the best description of this concept, because its everyday meaning does not convey the distinction between cases where plaintiffs must come forward with expert evidence on causation and cases where they do not. In common parlance, a “medical” question is any question of or connected with the practice or study of medicine. In this sense, almost all deaths could be said to involve “medical questions” relating to causation. How many people could describe with precision how a gunshot wound to the head actually causes the death of a human being? But it does not require expert testimony for a lay jury to determine that a gunshot wound to the head of an otherwise healthy person who died shortly thereafter was the proximate cause of her death.

(Citation and punctuation omitted.) Cowart, 287 Ga. at 627 (2) (b).

It follows that expert testimony is not required for a lay jury to determine that a fire was the cause of death of an otherwise healthy woman who was found dead with “charring” and ‘Turning” on her lower extremities, after a fire engulfed her mobile home. See Donson Nursing Facilities v. Dixon, 176 Ga. App. 700-701 (1) (337 SE2d 351) (1985) (trial court properly denied defendant’s motion for directed verdict because expert testimony was not necessary to prove causation after plaintiff died in a fire); see also Jordan v. Smoot, 191 Ga. App. 74, 75 (1) (380 SE2d 714) (1989) (reversing a trial court’s grant of directed verdict in a personal injury case because medical testimony was not required for a jury to determine whether an automobile accident caused the appellant’s injury).

However, in this case, there was expert testimony about the cause of the victim’s death. The arson investigator, who was certified as an expert, without objection from Clark, testified that based upon the location where the victim was found, it indicated to him that she was alive at the time of the fire and trying to escape the mobile home. Furthermore, the investigator testified, without objection, that he read Westbrook’s autopsy report and that she died as a result of the fire. Additionally, Clark admitted that Westbrook died as a result of the fire.

Decided October 26, 2016.

Hudson King, J. Shane Hudson, J. L. King II, for appellants.

Mickey E. Waller, for appellee.

Thus, the trial court erred by granting the motion for directed verdict. See Moore, 326 Ga. App. at 810 (l).

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

       Artie, Quateshia, and Charles Westbrook.

       Two separate lawsuits were filed and then, subsequently, were consolidated.

       Gardner also contends that the trial court erred when it announced from the bench that it was entering a directed verdict as to the estate’s claim because “there is no evidence that [Gardner] is administrator of the estate.” We agree. Gardner testified, without objection, that he filed a lawsuit on behalf of his mother’s estate. Furthermore, a pre-trial order was filed in this case. Gardner’s status as the administrator of his mother’s estate was not listed as an issue in the case.
      OCGA § 9-11-16 (b) provides, in pertinent part, a pretrial order “controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” It generally is recognized that, unless the pretrial order is modified at or before trial, a party may not advance theories or offer evidence that violate the terms of the pretrial order.
      (Citation and punctuation omitted.) Ridley v. Turner, 335 Ga. App. 108, 110 (1) (778 SE2d 844) (2015); see also Eagle Jets, LLC v. Atlanta Jet, Inc., 321 Ga. App. 386, 400 (8) (740 SE2d 439) (2013). Thus, the trial court erred to the extent that it directed a verdict in favor of Clark as to this issue.

       Gardner and his siblings also contend that the trial court erred by failing to grant their motion in limine . However, as acknowledged by Gardner and his siblings in their brief, the trial court reserved ruling. “It is within the trial court’s discretion to refuse to rule on a motion in limine and to reserve ruling on the admissibility of evidence until it is offered during trial.” (Citation omitted.) Morris v. Southern Bell Tel. & Tel. Co., 180 Ga. App. 145 (1) (348 SE2d 573) (1986). Thus, there was no error.


author: MILLER, Presiding Judge.

text:
    A16A0767.
    A16A0859.
    RENTZ et al. v. RENTZ et al. RENTZ FAMILY FARMS v. RENTZ et al.
    (793 SE2d 112)
   MILLER, Presiding Judge.

These appeals involve the complicated interaction between the Decatur County Probate and Superior Courts in connection with the distribution of several parcels of real property in Marvin Rentz’s estate under the terms of his will. The probate court entered an order compelling liquidation of the estate’s assets, including the real property, and requiring distribution of the proceeds. The executor filed two separate declaratory judgment petitions in the superior court to ascertain if the probate court had jurisdiction to resolve conflicting claims of title to the real property and to order a sale of that property The executor also sought a temporary restraining order to stop the sale.

The superior court determined that (1) the probate court had jurisdiction to order the sale, and (2) the superior court lacked subject matter jurisdiction to issue an injunction or to address the issues raised in the declaratory judgment petitions. These appeals followed. After a thorough review of the record, we vacate the superior court’s order and remand these cases to the superior court for further proceedings.

When Marvin Rentz (“Marvin”) died on March 12, 2012, he left a will that devised his extensive property to his four sons, and he named one of his sons, Dennis Rentz (“Dennis”), as executor of his will. The terms of Marvin’s will directed that

all of my just debts be paid by my Executor, hereinafter named, as soon after my demise as is practicable. I do not, however, require my Executor to immediately liquidate the assets of my estate in order to pay my just debts. It is my anticipation that my Executor may choose, for a limited time, to continue the operation of my businesses as part of my Executor’s effort to properly administer my estate.

In addition to being the executor of the estate, and a beneficiary under the will, Dennis was the head of a partnership he owned along with his son. This partnership, known as the Rentz Family Farms (“the partnership”), operated a farm on several parcels of Marvin’s land through a lease entered into with Marvin prior to Marvin’s death. Under the terms of the lease, the partnership was required to pay the outstanding debts and taxes on the property in lieu of rental payments. Notably, a month before his death, Marvin executed an extension on the lease to run through at least 2020.

In December 2014, Marvin’s other sons (“the beneficiaries”) filed a petition in the probate court for an accounting and settlement of Marvin’s estate, seeking to force Dennis to sell the property, pay off the debts, and distribute the proceeds, which they expected would total about $5,000,000. On August 18 and 19, 2015, while the petition for sale was pending in the probate court, Dennis filed two petitions for declaratory judgment in the superior court. He filed one petition on behalf of the estate and the other on behalf of the partnership, seeking to determine if the probate court had jurisdiction to order the sale. Dennis noted the conflicting responsibilities and duties he faced as both executor of the estate and head of the partnership.

On September 8, despite the declaratory judgment actions pending in the superior court, the probate court issued an “interim order” granting the beneficiaries’ petition for an accounting and settlement, and ordering the sale of the estate property. The probate court found that the estate could sell the property “free and clear” of the partnership’s lease, in part because it found there would be no consideration for the lease once the debts and taxes were paid from the proceeds of the sale.

In ordering the sale of the property, the probate court further found that Dennis’s obligation to the estate beneficiaries took precedence over any personal rights, and to the extent he favored any other position, he would be in breach of his fiduciary duties. The probate court found that Dennis was estopped from promoting the partnership’s interests, and it noted that because Dennis had already sold some of the leased property to himself despite the lease, he could not argue against the sale of other parcels.

On behalf of the partnership, and while the two declaratory judgment petitions remained pending, Dennis filed for a temporary restraining order (“TRO”) in the superior court to stop the sale of the estate property. Dennis also requested a TRO from the superior court in his capacity as the executor of the estate. In two separate orders issued on October 22, the superior court denied Dennis’s TRO requests, finding that the partnership had elected not to participate in the proceedings in the probate court and thus was not entitled to a restraining order. The superior court further found that the probate court had jurisdiction to order the disposition of the estate’s property

Additionally, the superior court found that it lacked jurisdiction to grant the requested TROs. Although the superior court noted that it had concurrent jurisdiction with the probate court, it declined to intervene once the probate court exercised its jurisdiction. The superior court also explained that the requests for TROs were an impermissible collateral attack on the probate court’s valid order. Absent from the superior court’s order, however, was any final ruling on the pending declaratory judgment actions.

Thereafter, Dennis moved the superior court for a final judgment or for a certificate of immediate review in the declaratory judgment actions, noting that the superior court had not entered a final ruling in those cases. On November 3, the superior court issued its final judgment in both cases, stating that it lacked jurisdiction over the issues presented in the declaratory judgment petitions.

After the superior court denied the petitions for declaratory judgment, Dennis and the partnership requested, and the superior court granted, an injunction halting the sale of the property, pending the resolution of these cases on appeal.

1. Before we consider the merits of these two appeals, we must address the threshold issue of our jurisdiction. This Court, rather than the Supreme Court of Georgia, has jurisdiction over these appeals because the parties raise questions of subject matter jurisdiction, and the claims relating to equity, title to land, and interpretation of Marvin’s will are merely ancillary to the jurisdictional issues at this juncture. See Johns v. Morgan, 281 Ga. 51, 52, n. 2 (635 SE2d 753) (2006) (in an estate case, equitable relief was merely ancillary to legal issues).

(a) The beneficiaries have filed a motion to dismiss the appeal in Case No. A16A0767 on numerous grounds, including lack of jurisdiction. There can be no dispute that this Court has jurisdiction to hear this appeal because the superior court’s orders denying the petitions for declaratory judgment are final orders subject to direct appeal. OCGA §§ 5-6-34 (a) (1); 9-4-2 (a). Moreover, the grounds the beneficiaries raise in the motion to dismiss lack merit.

First, the beneficiaries argue that there was no final order from the probate court to appeal. We disagree. The probate court’s caption as an “interim” order does not require us to conclude that the order was not final. See In re Estate of Sims, 246 Ga. App. 451, 452 (540 SE2d 650) (2000). Rather, we look to the substance of the order to determine whether it was final. Id.; see also Sotter v. Stephens, 291 Ga. 79, 82-83 (727 SE2d 484) (2012) (“the mere designation of a judgment as final is not controlling”) (citation and punctuation omitted). In this case, the probate court’s order resolved the issue pending before it — the sale of the estate property Accordingly, the probate court’s order was final for purposes of the superior court’s jurisdiction.

(b) Additionally, the beneficiaries argue that the partnership has no standing in this appeal because, as the superior court found, the partnership failed to intervene or participate in the probate court proceedings. We disagree.

It is well settled that

[o]ne who had full knowledge of the pendency of a case in which he had a direct pecuniary interest, and neither sought to become a party thereto nor made any effort to intervene therein, so as to protect his rights, can not, after the rendition of a judgment in favor of the plaintiff in such suit, maintain an equitable petition to set such judgment aside or restrain its enforcement.

Fitzgerald v. Bowen, 114 Ga. 691, 691 (1) (40 SE 735) (1902). Nevertheless, in this case, the partnership was able to — and in fact did — protect its interests in the probate court through Dennis’s actions. The probate court noted this when it concluded that Dennis placed the partnership’s interests above his duties to the estate beneficiaries. Moreover, the partnership retained its own counsel after the probate court’s ruling that Dennis was advancing the partnership’s interests over the interests of the estate. In light of these facts, we conclude that the partnership was sufficiently involved in the proceedings before the probate court and is properly a party to this appeal. Cf. Walden v. Mahnks, 178 Ga. 825, 831 (1) (174 SE 538) (1934) (finding the principle set forth in Fitzgerald, supra, 114 Ga. at 691 (1), inapplicable to case involving the probate of a will).

Case No. A16A0767

2. In his first enumeration of error, Dennis argues that the superior court erred by concluding that it lacked jurisdiction over the petitions for a declaratory judgment. We agree.

Whether the superior court, or probate court, has jurisdiction over an issue is a question of law that we review de novo. Babb v. Babb, 293 Ga. App. 140, 140 (1) (666 SE2d 396) (2008).

OCGA § 15-9-30 gives Georgia’s probate courts original, exclusive, and general jurisdiction over the probate of wills, controversies over executorship, the sale and distribution of estate property, and all other matters and things as appertain or relate to estates of deceased persons. A superior court has concurrent jurisdiction over the administration of estates only when complete and adequate remedies at law are unavailable.

(Citations, punctuation and footnotes omitted.) Id. at 141 (1).

In this case, we must determine whether the superior court had jurisdiction to address the declaratory judgment petitions, which questioned the probate court’s jurisdiction to order the sale of the estate free and clear of the lease. For the reasons that follow, we conclude that the superior court erred by finding that it lacked jurisdiction over Dennis’s petitions.

(a) Importantly, Dennis had fiduciary duties to both the estate and the partnership, leaving him with conflicting duties as to each. Fiduciaries have the general right to a declaratory judgment in three specific situations:

(1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; (2) To direct the executor, administrator, or trustee to do or abstain from doing any particular act in his fiduciary capacity; or (3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

Cochran v. White, 269 Ga. App. 182, 183-184 (1) (603 SE2d 509) (2004); see also OCGA § 9-4-4 (a). Moreover,

[i]f uncertainty exists, executors are entitled under OCGA § 9-4-4 (a) to judicial guidance. But the purpose of a declaratory judgment in such a case is to guide and protect executors from uncertainty and insecurity with respect to some future act or conduct. When the rights of the parties have already accrued and no uncertainty exists that requires the court’s guidance, a declaratory judgment is not authorized.

Cochran, supra, 269 Ga. App. at 184 (1). See also OCGA § 23-2-92 (“In cases of difficulty in construing wills, in distributing estates, in ascertaining the persons entitled, or in determining under what law property should be divided, the representative may ask the direction of the court, but not on imaginary difficulties or from excessive caution.”).

Here, Dennis, as the executor of the estate and head of the partnership, faced uncertainty with respect to his conflicting duties to the partnership and to the estate and beneficiaries. As such, a declaratory judgment was an appropriate vehicle to clarify his obligations. Moreover, the superior court had concurrent jurisdiction with the probate court to address these issues. See OCGA § 15-9-127 (1), (9) (conferring concurrent jurisdiction on the superior court and probate court in actions for declaratory judgments or to adjudicate a petition under OCGA § 23-2-92 seeking direction from the court or construction of a will). Accordingly, the superior court had jurisdiction to address Dennis’s concerns.

(b) In light of our conclusion that the superior court erred in ruling that it lacked jurisdiction to consider Dennis’s declaratory judgment petitions, we need not address his claim that the probate court lacked jurisdiction to order the sale of the leased property, or to interpret the will as allowing the immediate sale of the property free and clear of the lease. We leave these questions for the superior court to address in the first instance on remand.

3. Dennis next argues that the superior court erred by denying his requests for TROs on behalf of the estate and the partnership. We agree.

Generally, the probate court has original and exclusive jurisdiction over the probate of wills. OCGA § 15-9-30. See also Willis v. Willis, 213 Ga. 45 (96 SE2d 591) (1957). Moreover,

[t]he superior courts are not ordinarily empowered on equitable petition to set aside a previous probate of a will by [a probate court], or to pass upon the validity of a will, or to interfere with due administration already in progress in a [probate court], or to do more than determine the legality or proper construction of particular legacies.

Abercrombie v. Hair, 185 Ga. 728, 731 (3) (196 SE 447) (1938).

Nevertheless, OCGA § 23-2-91 provides:

Equity will not interfere with the regular administration of estates, except upon: (1) Application of the representative: (A) For construction and direction; or (B) For marshaling the assets; or (2) Application of any person interested in the estate where there is danger of loss or other injury to his interests.

And under OCGA § 9-5-1, “[e]quity, by a writ of injunction, may restrain proceedings in another or the same court, a threatened or existing tort, or any other act of a private individual or corporation which is illegal or contrary to equity and good conscience and for which no adequate remedy is provided at law.” (Emphasis supplied.)

In Benefield v. Martin, 276 Ga.App. 130, 131-132 (622 SE2d 469) (2005), this Court addressed the superior court’s concurrent jurisdiction with the probate court and found that the superior court could only exercise its concurrent jurisdiction where there was no complete and adequate remedy at law. We find Benefield instructive here because there are questions involving interpretation of the will and the probate court’s authority to order the sale free and clear of the lease, and the resulting sale could bring about inequitable and irreparable results. Accordingly, just as we concluded in Division 2, that the superior court has jurisdiction to consider the merits of the declaratory judgment petitions, we likewise conclude that the superior court was authorized to exercise its concurrent and equitable jurisdiction to decide the requests for the temporary restraining orders. See Lowell v. Bouchillon, 246 Ga. 357, 358 (2) (271 SE2d 498) (1980) (parties made a prima facie showing of possible injury to their interests justifying equitable intervention where the executor sought a public sale of the estate property under an erroneous construction of a will). Accordingly, in Case No. A16A0767, we remand with instructions for the superior court to reconsider whether the facts of the case warrant a TRO while it considers the declaratory judgment petitions, in light of our decision.

Decided October 26, 2016.

Perry & Walters, George P. Donaldson III, Misty G. Haskins; The Smith Group, Gregory D. Smith; Allen H. Olson, for appellants.

Kirbo Law Firm, Ben Kirbo, for appellees.

Case No. A16A0859

4. In the companion appeal, the partnership argues that the probate court lacked jurisdiction to order the sale because the lease created a conflicting claim of title to the land that fell outside the probate court’s jurisdiction.

Although we conclude, as set forth above, that the partnership is a party to the appeal, we find it premature for us to consider the probate court’s jurisdiction to order the sale when this is the issue the superior court must address on remand. Consequently, we vacate the judgment in Case No. A16A0859 and remand this case for further proceedings.

Judgments vacated and cases remanded with direction.

McFadden, J., concurs. McMillian, J., concurs in judgment only.

       At some point after this order, Dennis obtained different counsel for the partnership and the estate.

       We note that the procedural history of this case has led to confusion between the probate court and the superior court. The superior court addressed, but did not explicitly rule on, the declaratory judgment action in its order denying a TRO. Moreover, the superior court concluded that it lacked jurisdiction to grant the TRO, but it made this determination based on its conclusion that the facts did not warrant a TRO, which is not a jurisdictional issue.

       Before the superior court issued its injunction, the estate received bids for the property. The highest bid was in the amount of $12,086,550. Kevin Rentz, Dennis’s son, submitted a lower bid on behalf of the partnership in the amount of $8,000,000.

       Although we discuss only two of the beneficiaries’ arguments here, we conclude that none provides any basis to dismiss the appeal.

       We note that Dennis filed the petitions for declaratory judgment before the probate court issued its interim order. Thus, the petitions could not have been an appeal from the probate court’s order and were properly deemed declaratory judgment petitions.

       The beneficiaries’ motion to dismiss the companion appeal, Case No. A16A0859, is denied as moot.