text:
    A12A0756.
    PERKINS et al. v. KRANZ.
    (728 SE2d 804)
   MlKELL, Presiding Judge.

While walking in a Gwinnett County subdivision, Thomas Kranz’s eardrum was punctured by a branch from a tree overhanging the sidewalk. Kranz sued Jerry Perkins and Nyda Perkins, on whose property the tree was located, claiming negligence. The trial court denied the Perkinses’ motion for summary judgment without explanation. They sought and were granted interlocutory review, and on appeal, they assign error to the trial court’s denial of their motion for summary judgment. For the reasons that follow, we agree and reverse.

This court conducts a de novo review of the grant or denial of a motion for summary judgment. To prevail, the moving party must show that no genuine issue of material fact exists and that the undisputed facts and all inferences and conclusions drawn from them, when viewed in the light most favorable to Kranz as the nonmoving party, warrant judgment as a matter of law.

So viewed, the record reflects that on April 3, 2009, Kranz was pushing his toddler grandson in a stroller as he walked through the subdivision where his daughter lives. Kranz noticed the Perkinses’ tree, with its limbs extending over the sidewalk. The day was sunny and clear, and there was nothing to obstruct Kranz’s view of the tree. He saw the branches obstructing his path, and in order to avoid them, moved off of the sidewalk and began walking on a strip of grass running between the sidewalk and the subdivision roadway. As he passed the tree, he felt a sharp pain, and eventually realized that a twig had entered his ear and pierced his eardrum. He later had surgery to repair the eardrum.

1. The Perkinses assign error to the trial court’s denial of their motion for summary judgment, arguing that at best, Kranz was a licensee, and their only duty was to avoid wilfully or wantonly harming him.

The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff. This issue is a question of law.

While the Perkinses argue that Kranz was, at best, a licensee, Kranz first argues that he was an anticipated licensee, and compares the duty of care under such a status to the duty owed an invitee in that “it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one’s premises.”

Pretermitting any decision on Kranz’s potential status as a licensee, anticipated licensee, or invitee, he may not recover as a matter of law because the evidence establishes that he had equal knowledge with the Perkinses of the potential danger posed by the tree.

2. If considered to be a licensee, Kranz could not recover because the owner of the premises is liable to a licensee only for wilful or wanton injury. There is no allegation, nor does the record support, any evidence of wilfulness. We have found that wanton conduct, in this context, is conduct that is “so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent to do harm or inflict injury.” An owner, however, “has no duty to a licensee to keep the premises up to any standard of safety, except that [the property] must not contain pitfalls, mantraps, and things of that type.” In the case sub judice, it is clear that the tree and its overhanging branches were visible to Kranz and were in no way a pitfall, mantrap, or hidden peril.

In an analogous situation, we affirmed the trial court’s grant of summary judgment in favor of a homeowner where the plaintiff fell from a high deck with no railing around it. We found that the plaintiff’s knowledge of the hazard was equal to the property owner’s, as the plaintiff had time to observe the lack of railing and acknowledged that she could have turned around and looked to see where she was stepping. Similarly, Kranz deposed that he saw the tree branches overhanging the sidewalk in time to avoid them, altered his route in order to avoid them, and was not prevented from either turning around or crossing to the other side of the street to avoid the branches, although he did not do so. Kranz further told an accident investigator that the tree was “easy to go around.” “Where a licensee has equal knowledge of the dangerous condition or the risks involved, there is no wilful or wanton action on the part of the owner and there is no liability to the licensee.”

3. Kranz argues that he is an anticipated licensee, and, accordingly, the Perkinses owed him a duty of ordinary care, not just a duty to refrain from wilful or wanton conduct. However,

[although a landowner owes a duty to use ordinary care to protect anticipated licensees from dangerous activities being conducted on the premises or from hidden perils, where the alleged negligence arises from a dangerous static condition on the premises, the duty remains not to injure the licensee wilfully or wantonly.

Kranz argues that the tree is not a static defect because it “grows over time and eventually dies and rots away, constantly changing form.” Kranz asserts that the Perkinses had superior knowledge of the tree, because Jerry Perkins testified that he regularly used that area of sidewalk, while Kranz, by contrast, was an infrequent visitor. Even if Kranz had encountered the tree before, in a prior season, a static defect exception still may exist so long as the injured person had sufficient opportunity to observe the defect at the time of the injury in question, even absent encountering the alleged defect on prior dates. In a transcribed interview with an accident investigator that is part of the record before us, Kranz testified that he was five to ten feet from the tree when he noticed overhanging branches and decided to alter his course. It defies logic and belief that this or any tree either grew or decayed in any perceptible form during the time it took Kranz to walk the five to ten feet to where his injury occurred.

Decided June 12, 2012.

Fain, Major & Brennan, Elliot D. Tiller, for appellants.

4. Even if Kranz were an invitee, he still may not recover. The duty owed to any invitee is to “discover and either keep the premises safe from or warn of hidden dangers or defects not observable to such invitees in the exercise of ordinary care. However, there is no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care,” and for this reason, the trial court erred in denying the Perkinses’ motion for summary judgment. It is undisputed that Kranz saw the tree overhanging the sidewalk and altered his route in an attempt to avoid contact with its branches. The danger presented by the tree was open and obvious. Kranz plainly was aware that overhanging branches may result in injury.

Finding no genuine issues of material fact, and that the Per-kinses are entitled to judgment as a matter of law, we reverse.

Judgment reversed.

Miller and Blackwell, JJ., concur.

Leitner, Williams, Dooley & Napolitan, Thomas D. Sippel, for appellee.

        Petrosky v. Embry Crossing Condo. Assn., 284 Ga. App. 354 (1) (643 SE2d 855) (2007); OCGA§ 9-11-56 (c).

       (Punctuation and footnotes omitted.) Boiler v. Robert W. Woodruff Arts Center, 311 Ga. App. 693, 695-696 (1) (716 SE2d 713) (2011).

       (Citations and punctuation omitted.) Williams v. Truett, 251 Ga. App. 46, 47 (553 SE2d 350) (2001).

       OCGA§ 51-3-2 (b).

       (Citation and punctuation omitted.) Trulove v. Jones, 271 Ga. App. 681-682 (1) (610 SE2d 649) (2005).

       (Citation and punctuation omitted.) Id. at 682 (1).

       Id.

       Id. at 681.

       (Citation and punctuation omitted; emphasis in original.) Id. at 682 (1). Kranz, in his appellee’s brief, argues that a genuine issue of material fact exists as to whether the Perkinses are liable under a theory of negligence per se. We have held that “negligence per se is not liability per se”; therefore, even if the Perkinses could be shown to be negligent per se, Kranz would be precluded from recovering because, as discussed in Division 1, he had equal knowledge of the potential danger presented by the tree. (Punctuation and footnote omitted.) Yasinsac v. Colonial Oil Properties, 246 Ga. App. 484, 486 (3) (541 SE2d 109) (2000).

       (Citations omitted.) Rice v. Elliott, 256 Ga. App. 87 (567 SE2d 721) (2002).

       See Trulove, supra (plaintiff who had been on pool deck for an hour had equal knowledge with property owner of static defect that deck lacked railing).

       See Pye v. Reagin, 262 Ga. App. 490, 491 (1) (586 SE2d 5) (2003) (tree roots on which invitee tripped are considered a static defect). Kranz also argues that a tree “may blow in the wind, extending or contracting its reach as it moves.” However, as he presents no evidence or testimony indicating that wind was moving the tree branches at the time of his injury, we need not address this point further.

       The Perkinses contest Kranz’s argument that he was an invitee not just of his own daughter, but also of “the neighborhood,” as he was visiting the subdivision where she lives.

       (Citations omitted; emphasis supplied.) Barnes v. Morganton Baptist Assn., 306 Ga. App. 755, 757 (1) (703 SE2d 359) (2010).

       See Weston v. Dun Transp. &c., 304 Ga. App. 84, 88 (1) (695 SE2d 279) (2010) (while issue of whether plaintiff exercised due diligence for his own safety is ordinarily reserved for the jury, it may be summarily adjudicated if plaintiff’s knowledge of the risk is clear and palpable).


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A12A1565.
    SMITH v. THE STATE.
    (728 SE2d 808)
   Ellington, Chief Judge.

A Spalding County jury found Ebony Smith guilty of trafficking in cocaine, OCGA§ 16-13-31 (a) (1) (C). She appeals from the denial of her motion for new trial, contending that the evidence was insufficient to support her conviction and that she received ineffective assistance of counsel. Finding no error, we affirm.

1. In four related enumerated errors, Smith argues that the trial court erred in denying her motion for a directed verdict and that the evidence was insufficient to support her conviction. According to Smith, the evidence showed that she was merely present in the car where the cocaine was discovered, that she did not know that the cocaine was hidden in the car’s trunk, and that others had had access to the car before she and her co-defendant, Dante Hampton, took possession of it.

Amotion for a directed verdict should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction: the evidence must be sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. The evidence must be viewed in the light most favorable to support the verdict and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine the credibility of witnesses.

(Footnotes omitted.) Hughes v. State, 297 Ga. App. 217 (676 SE2d 852) (2009). See also Bray v. State, 294 Ga. App. 562, 563 (1) (669 SE2d 509) (2008) (“Ajury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.”) (citation and punctuation omitted).

Viewed in this light, the evidence shows that, at about 9:30 p.m. on May 30, 2007, an officer with the Spalding County Sheriff’s Department was patrolling the southbound lanes on Interstate 75 when he observed a car that was being driven with about one third of its width in the inside (left) lane and the rest in the middle lane. Shortly thereafter, the driver moved into the middle lane, but then merged partially into the inside lane again. After the officer conducted a traffic stop, the driver identified herself as Ebony Smith, and the passenger was Dante Hampton. The car was a rental car that a man named Vernon James had rented about two hours earlier in Atlanta; Hampton was listed as an additional driver on the rental agreement, but Smith was not. According to the agreement, the car was supposed to be turned in at the Orlando, Florida airport.

While talking with Smith and Hampton, the officer observed that Smith appeared to be scared and that Hampton’s hand was trembling, he avoided eye contact, and he seemed “unusually nervous.” The officer noticed that there were some “bootleg” DVDs and CDs near the front console. Because Hampton was listed as a driver on the rental agreement, the officer asked Hampton for permission to search the car, and Hampton consented.

On the floor behind the front passenger seat, the officer found a box for women’s shoes that contained $5,300 in cash, including 202 $20 bills; the cash was divided into $1,000 increments of small denominations with rubber bands and packaged in plastic bags. The officer also smelled a strong odor of marijuana throughout the car and, near the trunk area, the odor of cocaine. In addition, he observed some white powder on the back seat of the car; field testing revealed that it was cocaine. The officer then searched the trunk and discovered a package containing 1,417.61 grams (about three pounds) of cocaine that had been hidden in the fender well. According to the officer, the amount and value of the cocaine was so great that it would only be entrusted to a drug trafficker or someone “high up” in a trafficking organization, and he noted that there was so much cocaine that it would “supply a town like Griffin for some time.” Thus, it was his opinion that no one would have inadvertently left or forgotten the cocaine in the rental car and that it had been intentionally hidden so it could be smuggled to another city for distribution. Smith and Hampton were jointly indicted and tried for, inter alia, trafficking in cocaine.

At trial, Smith testified that she and Hampton lived in Florida and that, on Tuesday, May 29, 2007, the day before her arrest, they suddenly decided to go to Atlanta to visit some family members. According to Smith, they rode with two men she did not know, Vernon James and an unidentified man, in James’ car, and she was uncertain about who paid for the trip. Smith testified that they all stayed overnight at James’ apartment in Clayton County and that, the next evening, James rented a car, she and Hampton put their luggage in the car’s trunk, and she started driving back to Florida. Although Smith denied that she had been with James when he rented the car, Hampton testified that she was with him and James, but, because Smith was only 20 years old, she was too young to be authorized to drive the rental car.

On appeal, Smith argues that this evidence showed only that she was driving a rental car with cocaine hidden in the trunk and that others, including Hampton, had had access to the car. Therefore, she contends that the evidence was insufficient to show that she ever knowingly possessed or exercised any control over the cocaine.

The equal access defense ... is based on the rule that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.

(Citation and punctuation omitted.) Castillo v. State, 288 Ga. App. 828, 830 (655 SE2d 695) (2007). The fact that other people, including Smith’s co-defendant, had equal access to the car, however, does not automatically exculpate Smith. See id. Instead, it is for the jury to decide whether evidence that others may have had access to the car was sufficient to overcome evidence that Smith was in sole or joint, active or constructive possession of the drugs. Id.

“The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” (Citations and punctuation omitted.) Lockwood v. State, 257 Ga. 796, 797-798 (364 SE2d 574) (1988) (The defendant was in actual possession of four bags of cocaine that were discovered hidden behind the rear seat of his car during a traffic stop.).

A person is in constructive possession of an object when he knowingly has both the power and intention at a given time to exercise dominion over the object. A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.

(Citations and punctuation omitted.) Fluker v. State, 296 Ga. App. 347, 349 (674 SE2d 404) (2009). When determining whether the defendant “knowingly had both the power and intention at a given time to exercise control” over drugs, the jury may infer the defendant’s “power” from his or her access to the drugs, while they may look to the surrounding circumstances to determine whether the defendant had the requisite “intention.” (Citation and punctuation omitted.) Castillo v. State, 288 Ga. App. at 830. “As long as there is slight evidence of access, power, and intention to exercise control or dominion over the contraband, the question of fact regarding constructive possession remains within the domain of the trier of fact.” (Punctuation and footnote omitted.) Ferrell v. State, 312 Ga. App. 122, 124 (1) (717 SE2d 705) (2011).

In this case, during the jury charge, the trial court instructed the jury on, inter alia, mere presence, actual and constructive possession, sole and joint possession, equal access, and parties to a crime. It also instructed the jury that they must reach separate verdicts as to each defendant on each charge. Ultimately, the jury concluded that Smith was in joint, constructive possession of more than 400 grams of cocaine with a purity of ten percent or more.

We conclude that the evidence presented was sufficient for the jury to find, beyond a reasonable doubt, that Smith knew about the cocaine and was acting jointly and in concert with Hampton in the possession and transportation of the drugs. See Cochran v. State, 300 Ga. App. 92, 94-96 (1) (a) (684 SE2d 136) (2009). As a result, it was authorized to find her guilty of trafficking in cocaine.

2. Smith contends that her trial counsel provided ineffective representation when he failed to challenge the admission of bad character evidence against Hampton, specifically the fact that, at the time of the traffic stop, Hampton was on probation following a cocaine conviction in Florida.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). When the defendant does not call his trial counsel to testify at the hearing on the motion for new trial in order to explain why he or she acted, or failed to act, during trial, it is extremely difficult to overcome this presumption. Jones v. State, 279 Ga. 854, 855 (2) (622 SE2d 1) (2005); see also Morgan v. State, 275 Ga. 222, 227 (10) (564 SE2d 192) (2002).

“As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001). Counsel’s decisions about “what evidence to present or to forego in defending a client charged with a crime is a matter of strategy and tactics.” (Citation omitted.) Nichols v. State, 281 Ga. 483, 485 (2) (a) (640 SE2d 40) (2007). Further, “[w]hether an attorney’s trial tactics [were] reasonable is a question of law, not fact.” (Citation and punctuation omitted.) Moreland v. State, 263 Ga. App. 585, 588 (4) (588 SE2d 785) (2003). When this Court reviews a trial court’s ruling on an ineffective assistance claim on appeal, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. at 76.

The record in this case shows that, as the trial began, Hampton made an oral motion in limine to exclude evidence that, at the time of his arrest, he was on probation in Florida for selling crack cocaine. The trial court denied the motion, and the evidence was presented to the jury. Following his conviction, Hampton appealed, asserting that the trial court erred in denying the motion. See Hampton v. State, 300 Ga. App. 49 (684 SE2d 118) (2009). This Court agreed and reversed his conviction, ruling that Hampton’s statement was inadmissible character evidence and that the trial court committed harmful error when it denied the motion in limine, particularly due to the fact that Hampton “vigorously denied [his] guilt or any knowledge of the drugs or money found in the car[.]” Id. at 49-50 (l).

In her appeal, Smith argues that, because Hampton’s conviction was reversed due to the improper and prejudicial admission of his prior cocaine conviction, “it would logically follow that, ipso facto, [her] trial counsel was ineffective” for failing to join Hampton’s motion in limine or to object to that evidence at trial. Smith has failed, however, to support this argument with any authority.

Moreover, Smith failed to call her trial counsel as a witness during the motion for new trial hearing, and the record supports the trial court’s finding that Smith’s counsel had made a conscious, strategic decision not to oppose the admission of evidence of Hampton’s cocaine conviction. At trial, both co-defendants denied knowing anything about the shoebox full of cash or the cocaine, and they suggested that James or someone else must have hidden the cocaine in the trunk without their knowledge. More importantly, though, they both tried to attack the other’s credibility and to implicate the other in the crime. For example, Smith testified that Hampton had asked her to go to Atlanta with him, that Hampton was unemployed in May 2007, that Hampton had asked her to drive the rental car, and that James was Hampton’s cousin, and her counsel specifically elicited during cross-examination Hampton’s admission that he had been convicted of selling crack cocaine in Florida, even though such admission was cumulative of Hampton’s earlier testimony. In contrast, Hampton testified that Smith was his girlfriend, that she had asked him to go with her to Atlanta to visit her family, that he never drove the rental car, and that, contrary to Smith’s testimony that she did not know James before the trip, James was actually her cousin.

Finally, during the motion for new trial hearing, Smith’s appellate counsel admitted that “I don’t think [Smith’s trial counsel] was ineffective in his trial strategy because [his failure to object to the evidence of Hampton’s conviction] was obviously a trial strategy that was forced on him by the circumstances of the case.” Ultimately, the court concluded that Smith’s trial counsel’s “strategy of getting to the [criminal] record of [Hampton] was an appropriate trial strategy” and a “wise decision” on counsel’s part, especially because the co-defendants presented conflicting defenses.

Decided June 12, 2012.

Walker L. Chandler, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., David J. Younker, Assistant District Attorneys, for appellee.

Because the record supports this conclusion, we find that Smith has failed to demonstrate that her trial counsel rendered ineffective assistance. See Robinson v. State, 277 Ga. at 76.

Judgment affirmed.

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

       Smith does not challenge the legality of the traffic stop or the search of the car on appeal. A recording of the stop, detention and search was played for the jury at trial.

       On appeal, Smith also attempts to directly challenge the trial court’s denial of Hampton’s motion in limine to exclude this evidence. However, she lacks standing to challenge that ruling. See Rogers v. State, 211 Ga. App. 67 (1) (438 SE2d 140) (1993) (The defendant lacked standing to assert and rely on his co-defendant’s right to challenge the voluntariness and admissibility of an inculpatory statement made by the co-defendant.).

       See Morgan v. State, 275 Ga. at 227 (10) (“Because [the defendant’s] trial attorney did not testify on the motion for new trial, [he] made no affirmative showing that the purported evidentiary deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.”) (citation and punctuation omitted).


author: Boggs, Judge.

text:
    A12A0265.
    MATTOX v. FRANKLIN COUNTY et al.
    (728 SE2d 813)
   Boggs, Judge.

Jerry Mattox appeals from a superior court order requiring him to post an appeal bond in the amount of $2.1 million following the court’s dismissal of his declaratory judgment action challenging the validity and implementation of a special purpose local option sales tax (“SPLOST”) resolution passed by the Franklin County Board of Commissioners. For the reasons explained below, we affirm.

The record shows that on November 5, 2010, Mattox filed a pro se complaint for declaratory judgment and injunctive relief against Franklin County and Samuel Elrod, in his capacity as chair of the Franklin County Board of Commissioners (collectively “the County”). In his complaint, Mattox sought a judgment declaring that a November 2, 2010 SPLOST referendum is “void ab initio as an ultra vires act,” and that impermissible uses of SPLOST funds are also “void and illegal.” On February 2,2011, the superior court granted the County’s motion to dismiss the complaint based upon its conclusion that “the descriptions contained in the [SPLOST] Resolution are sufficiently specific as a matter of law” and that Mattox’s remaining contentions were not ripe for judicial review. On February 2, 2011, Mattox filed a notice of appeal from this order.

On April 28, 2011, the County moved for an appeal bond in the amount of$2,627,065 under OCGA §§ 5-6-46 and 50-15-2. The amount of the bond sought by the County represented potential increases on interest and construction costs during the pendency of the appeal, as well as additional legal fees and expenses that would be incurred by the County. On May 13,2011, the trial court issued an order requiring Mattox to post a bond in the amount of $2.1 million within 10 days “as a condition precedent to any further pursuit” of Mattox’s appeal. The order provided that his appeal would be deemed withdrawn if he failed to pay within the time required. On May 26, 2011, Mattox appealed the superior court’s order requiring him to post a $2.1 million bond to the Supreme Court of Georgia. The Supreme Court subsequently transferred the case to this court.

In his sole enumeration of error in this appeal, Mattox contends the superior court erred by granting an appeal bond under OCGA § 50-15-2. He first argues that his complaint is not a “public lawsuit” governed by that Code section. He asserts in the alternative that, even if OCGA § 50-15-2 applies to his complaint, a bond should not have been required because his complaint was meritorious.

OCGA § 50-15-2 provides in relevant part:

At any time prior to the final determination of a public lawsuit in the trial court or on appeal, any political subdivision which is a party to the action may petition for an order of the court that the opposing party or parties or intervenors be dismissed unless such opposing party or parties or inter-venors post a bond with surety to be approved by the court payable to the moving party for the payment of all damages and costs which may accrue by reason of such opposition or intervention in the event the moving party prevails. . . .

OCGA § 50-15-1 (2) defines a “public lawsuit” as There are few reported cases in Georgia addressing the scope of the Public Lawsuits Act. In Haney v. Dev. Auth. of Bremen, 271 Ga. 403 (519 SE2d 665) (1999), the Supreme Court of Georgia determined that “[t]he purpose of the act is to protect the public from increased financial costs caused by the filing of non-meritorious or frivolous litigation against [a public improvement] project.” (Citation and footnote omitted.) Id. at 404 (1). Based upon what it characterized as “the broad statutory definitions of the terms ‘political subdivision’ and ‘public lawsuit,’ ” the Supreme Court held “that the provisions of the Public Lawsuits Act apply to proceedings under the Revenue Bond Law. See OCGA § 36-82-60 to 36-82-85.” Id. at 405(1). Although the Supreme Court found that the Public Lawsuits Act applied to the case before it, it concluded that the trial court abused its discretion by requiring the appellants to post a bond because the appellants had “raised meritorious claims” below. Id. at 406 (2).

any action whereby the validity, reasonability, soundness, location, wisdom, feasibility, extent, or character of construction, improvement, financing, or leasing of any public improvement, project, or facility by any political subdivision, as owner or as lessee, is questioned directly or indirectly, including, but not limited to, actions for declaratory judgments or injunctions or interventions to declare invalid or to enjoin or to prevent such construction, improvement, financing, or leasing as lessor or as lessee and means any action to prevent or declare invalid or enjoin the creation, organization, or formation of any such political subdivision. . . .

1. Mattox contends that the Public Lawsuits Act does not apply to his complaint because it does not fall within the definition of a public lawsuit under OCGA § 50-15-1 (2). Mattox correctly asserts that the few cases addressing the scope of the appeal bond requirements in the Public Lawsuits Act have involved bond validation proceedings. See Haney, supra; Hay v. Newton County, 246 Ga. App. 44 (538 SE2d 181) (2000); Berry v. City of East Point, 277 Ga. App. 649 (627 SE2d 391) (2006). Because this is not a bond validation proceeding, we must determine whether Mattox’s particular complaint falls within the statutory definition of a public lawsuit, keeping in mind the Supreme Court’s conclusion in Haney, supra, that the scope of this definition is “broad.”

Mattox’s complaint alleges that it “challenges the validity of a... SPLOST resolution, intergovernmental agreement, referendum and potential implementation in Franklin County, Georgia.” It states:

Said SPLOST purports to collect a one percent sales and use tax and creation of general obligation debt to be paid with the tax. The County and five cities are to share in the proceeds under an intergovernmental agreement . . . for capital outlay projects for the county . . . and the five cities. Said tax to be collected for a period of six years after implementation. The division of funds and capital outlay projects are listed in the intergovernmental agreement....”

(Emphasis supplied.) We find these allegations sufficient to fall within the broad definition of “public lawsuit.” OCGA § 50-15-1 (2). At a minimum, Mattox’s complaint challenges the “validity’ of “financing ... of [a] public improvement [or] project” by a “political subdivision.” Id.

2. Having found that Mattox’s complaint is a “public lawsuit,” we must now determine whether it raises “frivolous or non-meritorious” challenges justifying an appeal bond under OCGA § 50-15-2. See Haney, supra, 271 Ga. at 406 (2); Hay, supra, 246 Ga. App. at 46-47 (2). Mattox’s claims fall into three general categories: that the resolution fails to set out with sufficient particularity the specific projects for the use of the SPLOST funds; that there are discrepancies between the project descriptions and amounts in the referendum when compared to the intergovernmental agreement; and that funds will be provided to projects that are not owned or operated by the county or cities.

After carefully reviewing Mattox’s complaint, we conclude that none of the grounds raised are meritorious. First, the resolution is sufficiently specific as a matter of law. OCGA § 48-8-111 (a) requires only that the resolution “specify eligible expenditures identified by the county and any qualified municipality for use of [the] proceeds” as well as “[t]he purpose or purposes for which the proceeds of the tax are to be used and may be expended.” OCGA § 48-8-111 (a) (1). “The proceeds received from the tax authorized by this part shall be used by the county and qualified municipalities . . . exclusively for the purpose or purposes specified in the resolution or ordinance calling for imposition of the tax.” OCGA § 48-8-121 (a) (1). The degree of specificity sought by Mattox simply is not mandated by the SPLOST statute. See 1990 Op. Atty. Gen. U90-18.

Second, any inconsistencies between the funding amounts in the intergovernmental agreement and the resolution do not render the resolution and referendum void. Irregularities in the exercise of granted powers do not render the action taken void. See City of Holly Springs v. Cherokee County, 299 Ga. App. 451, 457-458 (3) (682 SE2d 644) (2009); Faulk v. Twiggs County, 269 Ga. 809, 811 (504 SE2d 668) (1998). Additionally, any inconsistencies between the funding amounts can be corrected through amendment of the intergovernmental agreement. See Hicks v. Khoury, 283 Ga. 407, 408-409 (1) (658 SE2d 616) (2008) (affirming denial of mandamus in connection with amended intergovernmental agreement). And finally, the trial court properly concluded that Mattox’s allegations that funds will be used for projects not owned by the county or cities are hypothetical, abstract, and not yet ripe for adjudication based upon the pleadings and attached exhibits in the record before us. Bailey v. City of Atlanta, 296 Ga. App. 679, 682 (1) (675 SE2d 564) (2009) (declaratory judgment cannot be provided based upon “possible or probable future contingency”). Nothing in the resolution, intergovernmental agreement, referendum, or the proposed SPLOST projects list shows that specific capital outlay projects will be owned by entities other than the county or one of the cities.

Decided June 13, 2012.

Victor Y. Johnson, for appellant.

Dale R. Samuels, for appellees.

Grant & Green, Michael S. Green, Patrick O. Dollar, amici curiae.

Because Mattox’s complaint lacked merit, the trial court did not err by requiring him to post an appeal bond under OCGA § 50-15-2.

Judgment affirmed.

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

       On June 2, 2011, seven days after Mattox filed his notice of appeal from the bond order, the superior court issued an amended order correcting a scrivener’s error in the amount of the bond; it also clarified that thebond was ordered “pursuant to OCGA § 5-6-46 and§ 50-15-2.”On June 6,2011, the superior court granted the County’s motion to dismiss the appeal based upon Mattox’s failure to post a bond under OCGA § 50-15-2.

       OCGA § 50-15-1 (1) defines “political subdivision” to include municipalities and counties.

       The resolution at issue identifies the following categories of projects: “water and sewer”; “industrial development”; “public safety”; “roads, streets and bridges”; “airport”; “courthouse/public facilities”; “recreation”; “community center/public facilities”; “parking facilities”; “library”; and “administrative buildings/government buildings/facilities.”


text:
    A12A0431.
    In the Interest of C. A., a child.
    (728 SE2d 816)
   Boggs, Judge.

Challenging the sufficiency of the evidence, the mother of C. A., a 15-month-old girl, appeals from the trial court’s order terminating her parental rights. For the reasons explained below, we reverse.

The record before us includes a 66-page transcript from the termination hearing in which only the DFACS caseworker, the mother, and an assistant pastor in the mother’s church testified. Although the mother requested that the juvenile court clerk omit nothing from the record, the record before us does not include any case plans nor any of the pleadings or orders from the deprivation proceedings. The only pleadings in the record before us relate to the petition for termination of the mother and father’s parental rights.

The record shows that C. A. was born premature (29 weeks gestation) on February 24,2010. The caseworker testified that DFACS became involved while the child remained in the hospital after “receiving] a report that the mother was acting childlike and she also admitted to having another child taken from her custody.” The caseworker agreed that “a term that was previously used in a hearing was schizophrenia” and that “[t]hey said she was acting like that.” The caseworker testified that DFACS obtained custody of the child on April 5, 2010 “[d]ue to [the mother] not having any family at the time and also due to the reports of schizophrenia.” The caseworker testified that the child was placed in a foster home that has continuously cared for the child and would like to adopt her.

The caseworker testified that DFACS entered into a reunification plan with the mother on April 22, 2010 that required her “to follow all of the recommendations from her mental health provider, complete the parenting classes and maintain stable housing.” Her plan also required her to take proper medications and work with a parent aide. The caseworker testified that when the mother learned she was pregnant again “she had to stop taking her medication, but she did complete her parenting classes.”

The caseworker acknowledged that the mother visited her daughter on a regular basis and missed only two visits due to a doctor’s appointment and the birth of another child. Despite these regular visits, the caseworker testified that the child was not bonded to the mother and cried during visits. The mother did not pay any child support, but did buy the child a Christmas gift.

According to the caseworker, the mother did not maintain stable housing because she moved six times in one year and was currently living with a boyfriend who has “an extensive criminal history.” The caseworker acknowledged during cross-examination that some of the mother’s reasons for moving were not unreasonable and that the mother had informed her when she moved.

The caseworker admitted that the mother could “change diapers, cook, look after the child,” but explained that there “was a concern that she won’t be able to do it independently, that she would need supervision.” Based upon a CCFA and the psychological report, the caseworker testified that she did not believe the mother could take care of the child. While the mother completed all of the parenting classes, the caseworker did not believe that the mother completed them successfully based upon information she received from the parenting aide. The caseworker testified that the parenting aide told her that “she didn’t think [the mother] could really understand some of the parenting techniques that she taught her.”

The caseworker testified that DFACS sought to terminate the mother’s parental rights because

[w]e have a psychological that states that she is schizophrenic. We had her working with a parenting aide and they also suggested that she wouldn’t be able to effectively care for the child due to her mental health needs. Also an instructor that has been her CCFA has stated the same recommendation.

Other than the diagnosis of schizophrenia, the caseworker was not aware of any other physical or mental problems of the mother.

During cross-examination, the caseworker acknowledged that the mother had informed her that she believed she was no longer schizophrenic, that she had been living in a home owned by her church pastor for the past four months, and that she received social security disability payments in the amount of $657 a month.

The mother testified that after the birth of her last child in March 2011, she underwent a tubal ligation to prevent additional pregnancies. Following this birth, she sought treatment with a doctor because she knew she needed some help “cause of my stuff.” She began taking Risperdal, an anti-psychotic medication, and Trazodone, an antidepressant medication. The mother explained that she was functioning better with this medication.

The mother testified that medications previously prescribed to her by a different doctor were too strong and caused her to hear voices. According to the mother, this medication resulted in someone saying she had schizophrenia. She stopped hearing voices when she stopped taking the too-powerful medication over a year before the termination hearing. She denied ever experiencing visual hallucinations. She explained that she had been receiving social security disability benefits for about four years based upon a diagnosis of sickle cell anemia and depression, not schizophrenia. She testified that the sickle cell anemia caused her to “get tired and stuff in my legs.” She denied that anyone had talked with her about the need to pay child support for her daughter.

She explained that her church is like a second family to her and they are willing to help her with her daughter in ways other than residing with the mother. The assistant pastor for her church testified that she met the mother two months before the hearing. She explained that the mother and her boyfriend were renting a home owned by the pastor of the church and that the church had provided her assistance with clothing, food, and utilities.

At the conclusion of the hearing, the trial court noted that there was an unappealed order of deprivation and

a longstanding established inability of the mother because of her mental illness to take care of the child. And even though schizophrenia is part of it, there may also be some cognitive intellectual issues as well. . . . [Although she seems to be doing better under medication at the moment, the illness is likely to continue and will not likely be remedied.

The trial court subsequently signed an order prepared by DFACS’s attorney. Although the certified transcript does not reflect that DFACS introduced any exhibits into evidence, the order states that DFACS introduced into evidence

one exhibit, a Court report marked as “DFCS #1” with an attached confidential Parenting Assessment that was previously used in court and marked as an Exhibit B. There was also an Exhibit C which was a letter from Jamie J. Ford that was also testified to without objection by the Case Manager. The Court Report, Exhibit B and Exhibit C were submitted as one exhibit by DFCS.

The findings of fact portion of the order states that the “mother has had a previous diagnosis of schizophrenic. . . . There were concerns throughout the history of the case with the mother over her mental ability to care for a child. The psychological report indicated that she could not care for the same.” It also states that the mother completed a psychological evaluation which found that the mother was not “fit to care for a newborn child. The parent aide expressed concerns about the mother’s ability to parent.” The conclusions of law portion of the order states, in part, that “the mother has a verifiable medical deficiency that prohibits her from being able to properly parent or look after this child. The court does not question the fact that the mother does love this child and is not abusive toward the child but because of her mental deficiency, she is not capable of parenting.”

On appeal, the mother contends, in part, that the trial court erred because DFACS failed to prove her mental condition and that it would cause continued deprivation and present unfitness as a parent. We agree.

We proceed in a termination case with the knowledge that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances. In determining whether to take this drastic step, the juvenile court must find by clear and convincing evidence both that there is parental mi scon - duct or inability and that termination is in the best interest of the child. The first requirement is satisfied when the juvenile court finds that “(1) the child is deprived, (2) the lack of parental care or control is the cause of the deprivation, (3) such lack of care or control is likely to continue, and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.”

(Citations, punctuation and footnotes omitted.) In the Interest of M. A., 280 Ga. App. 854, 856 (635 SE2d 223) (2006). When determining whether a child is without proper parental care and control, the juvenile court can consider “[a] medically verifiable deficiency of the parent’s ... mental [ ] or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” (Emphasis supplied.) OCGA § 15-11-94 (b) (4) (B) (i).

In this case, the transcript prepared by the certified court reporter does not show that the DFACS exhibit referenced in the juvenile court order prepared by DFACS’s attorney was admitted into evidence. And, even if it were properly admitted, we cannot consider any hearsay in these exhibits, nor can we consider the diagnostic opinion of a third party not available for cross-examination. See In the Interest of M. A. C., 244 Ga. 645, 655 (4) (261 SE2d 590) (1979), superseded by statute on other grounds as noted in In the Interest of C. S., 282 Ga. 7,8 (644 SE2d 812) (2001)] In the Interest of C.D. E., 248 Ga. App. 756, 764 (2) (546 SE2d 837) (2001).

Based upon the juvenile court’s express reliance upon hearsay in this exhibit to support its conclusion that the mother suffered from schizophrenia to such a degree that she was unable to provide for the needs of her child, we must reverse. In the Interest of C. D. E., supra, 248 Ga. App. at 764-765 (2). This is not a case in which we can affirm the juvenile court’s ruling based upon other admissible evidence of the mother’s mental condition and its adverse impact on her ability to parent. Compare In the Interest of D. P., 287 Ga. App. 168,171 (1) (b) (651 SE2d 110) (2007) (parent stipulated to admissibility of psychologist report and other admissible evidence supported trial court’s findings). The caseworker’s testimony about the mother’s mental condition and ability to parent was also based entirely upon the hearsay of third parties who were not available for cross-examination. And, while the mother admitted to some mental issues, her unrefuted testimony that her issues resulted from over-medication and were resolved with different medication precludes a finding, by clear and convincing evidence, that a lack of proper parental care and control is likely to continue. See In the Interest of K. S., 271 Ga. App. 891, 893 (611 SE2d 150) (2005); In the Interest of A. G. L, 246 Ga. App. 85, 87-88 (2) (a) (539 SE2d 584) (2000).

Decided June 13, 2012.

Josephine B. Jones, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, W. Ashley Hawkins, for appellee.

“While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship.” (Citation and punctuation omitted.) In the Interest of A. A., 252 Ga. App. 167, 173 (2) (c) (555 SE2d 827) (2001). When advocating such a drastic step, DFACS must take care to ensure that probative, admissible evidence on the issues presented is properly before the juvenile court.

Judgment reversed.

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

       This child was bom on March 7,2011, and was also taken into DFACS custody and placed in the same foster home as his sister, C. A.

       The caseworker testified that CCFA means Comprehensive Child and Family Assessment.

       The record shows that DFACS’s attorney submitted exhibits to the juvenile court clerk almost two weeks after the termination hearing and represented that they had been “introduced in court at the termination hearing.” These exhibits include a three-page “court report” prepared by the DFACS caseworker; an eight-page parenting assessment prepared by a counselor with a master’s degree; and a three-page letter from a licensed marriage and family therapist and master addiction counselor. None of the exhibits have a handwritten date or initials on them, and as previously noted, the transcript contains no indication that they were ever tendered or admitted into evidence at the hearing.


text:
    A12A0496.
    McFALLS v. ONSAGER et al.
    (728 SE2d 820)
   Boggs, Judge.

Ralph McFalls, the paternal great uncle of now one-year-old A. C., appeals from a superior court order granting custody of the child to her maternal great aunt and uncle Karen and Curtis Onsager. Because we find no abuse of the superior court’s discretion in the custody determination, we affirm.

In adjudicating the custody of a minor child “where neither party seeking custody is a parent as defined by Georgia law, a determination of custody is to be made according to the best interest of the child.” (Citation omitted.) Stills v. Johnson, 272 Ga. 645, 649 (2) (533 SE2d 695) (2000). When the superior court has exercised its discretion in making this determination, “this court will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court’s finding, this court will not find there was an abuse of discretion.” (Citations and punctuation omitted.) Reed v. Reed, 289 Ga. 193 (710 SE2d 138) (2011).

The record reveals that the parents of A. C. asked McFalls, A. C.’s paternal great uncle, to care for A. C. until they could get “a place to live,... a better job, and could provide for her.” McFalls received the child on February 17, 2011, when she was two months old. When the Department of Family and Children Services began investigating the parents, they consented to McFalls obtaining temporary guardianship of A. C. On March 8, 2011, a probate judge signed temporary letters of guardianship naming McFalls as A. C.’s guardian.

Before A. C.’s birth, her maternal great aunt and uncle, the Onsagers, helped support A. C.’s older brother, born April 28, 2005. The parents “couldn’t deal with him, couldn’t handle him; couldn’t afford him; couldn’t take care of him,” and often left the brother at the Onsagers’ home sometimes for months at a time. The Onsagers adopted the older brother prior to A. C.’s birth. When they became aware that the mother was incarcerated and inquired about the whereabouts of A. C. shortly after her birth, they discovered that the child was in the care of McFalls. They decided to seek custody of her to “give her stability and to keep her with her sibling,” and to allow her to bond with a mother figure.

On May 16, 2011, the Onsagers filed a petition for custody of five-month-old A. C. McFalls filed an answer and cross-claim for custody. The superior court appointed a guardian ad litem to represent the best interest of A. C. A report filed by the guardian ad litem found that both McFalls and the Onsagers are “fit, willing and appropriate individuals to care for [A. C.].” The guardian noted that McFalls’ love for A. C. is evident and while he lacked “experience in caring for an infant child, he has made sure that the child seeks regular medical care, and received input from the child’s pediatrician as to how to best care for her.” She recommended, however, that custody of A. C. be transferred to the Onsagers because the “ability to be raised with a sibling can provide A. C. with a lifetime of benefits,” the Onsagers have the ability to provide a two-parent household and the ability to provide A. C. with a mother figure “which will prove to be invaluable as she progresses through childhood and adolescence.”

Decided June 13, 2012.

Ann M. Vaughan, for appellant.

Kris-Ann Poe, Francis E. Wiggers, Jr., Janna D. Akins, for appellees.

The superior court held a hearing which included the testimony of the parents, the guardian ad litem, a DFACS investigator, Karen Onsager, McFalls, and McFalls’ partner. The parents expressed a desire to have A. C. returned to their custody, but both had been incarcerated for possession of marijuana, bond jumping and violating probation, and did not have the means of taking care of A. C. The parents desired that A. C. remain with McFalls in the meantime. The mother stated that if she could not regain custody of A. C., “I’d like her to stay [with McFalls] so I can at least see her.” Testimony was presented that both McFalls and the Onsagers were fit caregivers and financially able to care for A. C. Following the hearing, the superior court gave “substantial weight to the desire of the parents” for A. C. to remain in the custody of McFalls, and found that both the Onsagers and McFalls can provide a stable and caring environment for A. C. The court concluded that it is in the best interest of A. C. that the Onsagers be granted custody of the child, “especially in light of the experience of Karen Onsager as the primary caregiver for other children.”

There was ample evidence in the record to support the superior court’s award of custody of A. C. to the Onsagers, including evidence that the Onsagers had custody of A. C.’s older brother. While McFalls argues that the superior court failed to give substantial weight to the parents’ choice, the court explained that even with giving substantial weight to the wishes of the parents for A. C. to remain in McFalls’ custody, it nevertheless found that it is in A. C.’s best interest for custody to be granted to the Onsagers. Under these circumstances, we see no abuse of the superior court’s discretion in granting custody of A. C. to the Onsagers and therefore affirm. See Reed, supra, 289 Ga. at 193-194.

Judgment affirmed.

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

       McFalls also argues that his temporary guardianship of A. C. had not been terminated by a court order. See OCGA § 29-2-8 (a). But the superior court’s final custody order granting custody of A. C. to the Onsagers had the effect of terminating the temporary guardianship.


text:
    A12A0571.
    ABUNDANT ANIMAL CARE, LLC et al. v. GRAY.
    (728 SE2d 822)
   Boggs, Judge.

In this personal injury case arising out of a dog bite, we granted the application for interlocutory appeal of Abundant Animal Care, LLC and Dr. Walton Waller, DVM (collectively “the clinic”) to review the trial court’s order denying their motion for summary judgment. In several related enumerations of error, the clinic contends the trial court should have granted its motion for summary judgment. For the reasons explained below, we agree and reverse.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant or denial of summary judgment, we apply a de novo standard of review, and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the non-movant. Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

So viewed, the record shows that April Gray was injured when she was bitten by a dog at the clinic while spending a day there with her aunt, Bennie Buchanan, who worked at the clinic. Buchanan testified that at the time of Gray’s injury, Gray was shadowing her in order for Gray and the clinic to make an informed decision about whether Gray should become an employee of the clinic. Gray, on the other hand, testified that she was already an employee at the time of her injury. Her injury occurred on her first day at the clinic.

Gray testified in her deposition that after she arrived with Buchanan around 7:00 a.m., Buchanan instructed her about how to clean the animal cages and take animals outside into a fenced yard “for pottying.” Gray also fed animals, placed medication in their food, swept and mopped floors, and helped make a footprint of a deceased animal. Gray testified that at Buchanan’s instruction, she took a dog named “Drago” into the outside fenced yard to eat and exercise. She left Drago outside while she ate lunch with Buchanan. Gray testified that she was scared when she went to take the dogs outside one at a time “because of the way that the dogs jumped ... at the cage” when they heard her and Buchanan enter the room. Drago was the second dog she took outside. Gray testified that Drago growled at her while in his cage and “he seemed agitated,” but Buchanan assured her “that it was okay.”

Gray testified that when she went outside after lunch to smoke a cigarette with Buchanan, Drago was lying down and Buchanan held the door open for her. Gray testified that as soon as she walked outside, Drago

grabbed [her] the first time ... on her shoulder and [Buchanan] knocked him off. And he jumped back up, and that’s when he grabbed me the second time, and it’s like he locked his jaw. I couldn’t get him off. And she kept beating him with the pan, the bowl that was out there, and then no more then she got him down, he jumped back up and got me a third time.

In this continuous incident, the dog bit Gray three separate times. In an affidavit provided after her deposition, Gray averred that Buchanan told her several days after the incident that she would not have told her it was okay to go outside if she had known that Drago was outside.

The record contains no evidence that Drago had bitten anyone before biting Gray. At the time of Gray’s injury, Drago had been boarded with the clinic for “at least four months.” Dr. Waller, the veterinarian and owner of the clinic, testified that he had known Drago “from when he was a puppy” and “probably better than most other animals that we have at the clinic.” He never saw Drago growl, bark aggressively, bare his teeth, or snap at anyone.

Buchanan testified that Drago had jumped on her in the past while playing. In her opinion, Drago might have mistaken Gray’s hair for a tug-of-war toy when he jumped on her. She testified:

He thought he was playing. That... her hair was something to play with, because it was hanging down and it was kind of moving around. He runs in, he grabs at it. Because he would play with those ropes. Playing, you know, pulling, tugging at it. And that’s when he’s pulling, yanking back and him, he’s pulling her more.

Following her injury, Gray filed suit against the clinic, asserting it was liable based upon the following theories of recovery: violation of Cherokee County ordinances; negligence per se; negligence; premises liability; violation of the vicious dog statute, OCGA § 51-2-7; and nuisance. The clinic moved for summary judgment in its favor, which the trial court denied based upon its general conclusion that material issues of fact precluded summary judgment in the clinic’s favor. This court subsequently granted the clinic’s application for interlocutory review. In related enumerations of error, the clinic asserts the trial court erred by failing to grant its summary judgment motion.

1. “In a typical dog bite case, regardless of whether the cause of action is based on the premises liability statute (OCGA § 51-3-1) or the dangerous animal liability statute (OCGA § 51-2-7), a plaintiff must produce evidence of the vicious propensity of the dog in order to show that the owner of the premises had superior knowledge of the danger.” (Citation and punctuation omitted.) Custer v. Coward, 293 Ga. App. 316, 319 (2) (667 SE2d 135) (2008). In this case, Gray failed to produce any evidence of Drago’s vicious or dangerous propensity; it is undisputed that Drago had never bitten or harmed anyone before the incident with Gray. See Huff v. Dyer, 297 Ga. App. 761, 763 (1) (678 SE2d 206) (2009).

In light of this undisputed evidence, Buchanan’s alleged statement that she would not have told Gray to go into the outside exercise area had she known that Drago was there does not support a finding of superior knowledge of a vicious or dangerous propensity posed by Drago. See Huff, supra, 297 Ga. App. at 763 (1) (owner’s statement that children “would not ‘have to worry about getting bit’ if they would stay away from her truck” inside which her dog was chained did not create issue of fact as to dog’s vicious propensity). Nor does Dr. Waller’s alleged promise to take care of Gray’s medical bills create an inference of knowledge that Drago was vicious or dangerous. See Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 253 (699 SE2d 439) (2010) (offer to pay plaintiff’s medical bills after injury not an admission of liability). And, Buchanan’s knowledge that Drago could jump on people does not support an inference of superior knowledge that Drago would bite a person. See, e.g., Huff, supra.

We also find that Gray cannot establish vicious propensity through a violation of Cherokee County animal ordinances. OCGA § 51-2-7 provides: “In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.” This Code provision “relieves a plaintiff from producing evidence of a dog’s vicious propensity based on evidence of a violation of an ordinance that restricts dogs from running at large.” (Citation and footnote omitted.) Huff, supra, 297 Ga. App. at 762-763 (1). In this case, it is undisputed that Drago was not running at large in violation of Cherokee County Ordinance Sec. 10-29 (a) at the time of Gray’s injury.

For these reasons, the trial court should have granted summary judgment in the clinic’s favor with regard to Gray’s claims premised upon premises liability, the dangerous animal statute, nuisance, and negligence per se. Gray’s remaining theory of recovery — negligence — requires additional analysis.

2. Gray asserts that the clinic should be held liable based upon negligent performance of a voluntary undertaking. In Osowski v. Smith, 262 Ga. App. 538 (586 SE2d 71) (2003), this court held that a dog owner could be held liable for injuries caused by a dog based upon negligent performance of a voluntary undertaking even though there was no evidence that dog had any vicious or dangerous propensities. Id. at 540-541 (1). In that case, a cable television installer was injured by a dog after the homeowner had offered to restrain the dog, but failed to do so. The installer did not get out of his truck to begin work until he received an assurance that all of the dogs on the property would be restrained.

Gray asserts that the clinic “voluntarily imposed regulations and procedures that would protect invitees such as the Plaintiff, but negligently failed to warn of such danger or enforce said regulations and procedures, even to inform the Plaintiff of the existence of such regulations and procedures.” The alleged failure of the clinic to inform Gray about the restricted areas of the clinic is fatal to her recovery under a voluntary undertaking theory. One of the essential elements of this claim is reasonable reliance by the injured person upon the voluntary undertaking. Osowski, supra, 262 Ga. App. at 540. Unlike the plaintiff in Osowski, supra, who refused to get out of his truck until the homeowner promised to restrain the dogs, Gray claims in this case that she was not aware of any of the voluntary procedures. She therefore could not have relied upon them, and the clinic cannot be held liable through a theory of voluntary undertaking.

Decided June 13, 2012.

Hollis C. Cobb, for appellants.

Philip D. Price, for appellee.

3. Finally, to the extent Gray asserts that the clinic should be held liable for failing to supervise her as required by their internal procedures, the record shows that her injuries were not proximately caused by any such negligent supervision. At the time of her injury, Gray was under the supervision of Buchanan as required by the clinic’s policy, and Gray has failed to show that the clinic had knowledge of any vicious or dangerous propensities of Drago that would have warranted different procedures. Simply put, the clinic could not have foreseen that Drago would bite Gray. See, e.g., Wright v. Ashe, 220 Ga. App. 91, 94-95 (469 SE2d 268) (1996) (affirming grant of summary judgment in negligent supervision case because defendant could not reasonably anticipate intervening criminal act).

For these reasons, the trial court erred in failing to grant summary judgment to the clinic on Gray’s negligence claims.

Judgment reversed.

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

       Based on the record before us, it appears that the Workers’ Compensation Board determined that Gray was not an employee at the time of her injury.

       Buchanan testified that she told Gray that she was not allowed in the back area where Drago was boarded unless Buchanan was with her. She explained that she had taken two different dogs of the same breed outside before Gray took Drago out without her knowledge. According to Buchanan, Gray should not have taken Drago outside without her, but not because of any particular danger posed by Drago. According to Buchanan, she was surprised to see Drago run toward them when they went outside to smoke a cigarette after lunch because she did not know that he had been taken outside.

       This ordinance provides: “It shall be unlawful for any owner, possessor, guardian, or custodian of any dog to fail to keep a dog under restraint or control as provided for in this section.” Cherokee County Ordinance Sec. 10-29 (b) (1) provides:
      A dog is considered not under restraint or control when it is running at large, whether wearing a collar and tag or not. Reasonable care and precautions shall be taken to prevent the dog from leaving the real property limits of its owner, guardian, possessor, or custodian, and to ensure that . . . [i]t is securely and humanely enclosed within a house, building, fence, pen or other proper enclosure out of which it cannot climb, dig, jump, or otherwise escape on its own volition.


author: MlKELL, Presiding Judge.

text:
    A12A0781.
    JEFFERSON v. STRIPLING et al.
    (728 SE2d 826)
   MlKELL, Presiding Judge.

Sherri Jefferson, an attorney representing herself, appeals from the trial court’s dismissal of her complaint for failure to state a claim upon which relief could be granted against three siblings, Frances Stripling, Fanny Salley, and Leroy Engram, whom she accuses of, among other claims, tortious interference with her business or profession, libel and slander. Jefferson represented another sibling, Willie Saby Walkes, in disputes arising over the distribution of property from the estates of the siblings’ relatives, and her difficulties with Stripling, Salley, and Engram arose from this.

A complaint must contain “[a] short and plain statement of the claims showing that the pleader is entitled to relief,” and “this short arid plain statement must include enough detail to afford the defendant fair notice of the nature of the claim and a fair opportunity to frame a responsive pleading.” If the complaint gives fair notice, “it should be dismissed for failure to state a claim only if . . . its allegations disclose with certainty that no set of facts consistent with the allegations could be proved that would entitle the plaintiff to the relief [s]he seeks.”

On appeal from the dismissal of a complaint, we view the matter de novo, construing the complaint in the light most favorable to the plaintiff, resolving all doubts in plaintiffs favor.

So viewed, Jefferson’s complaint alleged that, from April 2008 through the date of filing, appellees had attacked her trade, business and profession by filing several frivolous complaints with the State Bar of Georgia and that these acts were performed with malice and wrongful purpose. Further, Jefferson alleged that appellees engaged in a slanderous and libelous campaign by making false statements to the State Bar, members of the public, the church, and legal community about her personal life. Jefferson also alleged that appellees sent written communications, which they knew to be false, to the legal community, civic leaders, churches, and the trial court alleging that she had engaged in unethical and illegal business conduct. Finally, Jefferson alleges that appellees held private meetings in order to share false and misleading information with three unnamed state agencies in order to injure her reputation, trade, business and profession.

Jefferson’s complaint alleges that these acts constitute the torts of tortious interference with her trade, business and profession; malicious use and abuse of process; invasion of privacy; slander and libel; and infliction of emotional distress.

Appellees, pro se, filed their response to the complaint, primarily denying knowledge of any of Jefferson’s allegations, but also specifically relying on OCGA § 51-5-7 (3), (4). Thereafter, appellees filed two motions to dismiss, one premised on the statute of limitation for injury to reputation, and the other based on their position that “contacting the State Bar regarding the Plaintiff’s actions is our constitutional right.”

1. We first consider Jefferson’s third enumeration, that the trial court erred “when it misapplied the proper standard of law and dismissed the complaint under the Anti-SLAPP statute by asserting that the State Bar of Georgia is a judicial, executive or legislative body. The Dismissal violates public policy and the Georgia Constitution.”

The Anti-SLAPP statute, OCGA § 9-11-11.1 (a), reflects the General Assembly’s declaration

that it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances. The General Assembly of Georgia further finds and declares that the valid exercise of the constitutional rights of freedom of speech and the right to petition government for redress of grievances should not be chilled through abuse of the judicial process.

The trial court found that complaints to the State Bar by the appellees were statements made in connection with an issue under consideration by any official proceeding, including any proceeding before an executive or judicial body.

Pursuant to OCGA § 15-19-30, the Supreme Court, in 1963, was “authorized to establish as an administrative arm of the court a unified self-governing bar association which shall be known as the ‘State Bar of Georgia,’ composed of all persons licensed to practice law in this state.” As provided in OCGA § 15-19-31, the Supreme Court issued orders adopting rules and regulations for the organization and government of the state bar and to regulate the practice of law in this state, pursuant to which the State Disciplinary Board, composed of the Investigative Panel and the Review Panel, was set up to deal with complaints regarding members of the bar. Those rules provide for grievances to be filed with the Office of the General Counsel of the State Bar of Georgia.

Although Jefferson focuses her argument on the issue of whether the State Bar is a judicial, executive, or legislative body, we need not decide this issue, because it is clear that issues before the State Bar involving conduct of attorneys are “official proceeding^] authorized by law” and, therefore, covered by the Anti-SLAPP statute.

This court will affirm a decision of the trial court if right for any reason, even if it is based on erroneous reasoning. Therefore, the Anti-SLAPP statute is applicable to this matter, as held by the trial court, but subject to the procedural requirements addressed in Division 3, below.

2. Jefferson’s first enumeration is that the trial court abused its discretion in granting the motion regarding immunity under OCGA § 43-1-19 (a) because the trial court did not conduct a finding of fact on the issue of good faith.

The immunity provided under OCGA § 43-1-19 (i), however, is applicable to only those professions and occupations licensed under that title. As discussed in Division 1, supra, attorneys are governed by other statutes and regulations not included in Title 43.

Therefore, OCGA§ 43-1-19 is inapplicable to this matter.

3. Jefferson’s second and fourth enumerations are that the trial court abused its discretion in granting the motion under OCGA §§ 9-11-12 (b) (6) and 9-11-8 (a) (2) and in denying an evidentiary hearing on the motion under OCGA § 9-11-11.1. They are considered together.

OCGA § 9-11-11.1 (d) provides that “[a]ll discovery and any pending hearings or motions in the action shall be stayed upon the filing of a motion to dismiss ... made pursuant to subsection (b).... The motion shall be heard not more than 30 days after service ... .” (Emphasis supplied.)

Decided June 13, 2012.

Sherri J. Jefferson, pro se.

Frances Stripling, pro se.

Leroy Engram, pro se.

Fanny Salley, pro se.

The record reflects that no hearing was held on the Anti-SLAPP defense, as requiredby the statute. Therefore, this case is remanded to the trial court for a hearing as required by the Anti-SLAPP statute.

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

Miller and Blackwell, JJ., concur.

       OCGA §9-11-8 (a) (2) (A).

       (Citations omitted.) Benedict v. State Farm Bank, FSB, 309 Ga. App. 133, 134 (1) (709 SE2d 314) (2011).

       (Citation and punctuation omitted.) Id.

        Cardinale v. City of Atlanta, 290 Ga. 521, 522 (722 SE2d 732) (2012).

       The following communications are deemed privileged: ... (3) Statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned; (4) Statements made in good faith as part of an act in furtherance of the right of free speech or the right to petition government for a redress of grievances... in connection with an issue of public interest or concern, as defined in subsection (c) of Code Section 9-11-11.1[.]

       OCGA§ 9-3-33.

       “Strategic Lawsuit Against Public Participation.”

       OCGA § 9-11-11.1 (c) defines act in furtherance of the right of free speech or to petition the government as “any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or ... in connection with . . . any other official proceeding authorized by law." (Emphasis supplied.)

       State Bar Rules 4-101, 4-102, 4-201 (2012).

       State Bar Rule 4-202 (a) (2012).

        Hindu Temple &c. v. Raghunathan, 311 Ga. App. 109, 114-115 (1) (714 SE2d 628) (2011); Harkins v. Atlanta Humane Society, 273 Ga. App. 489, 490 (618 SE2d 16) (2005).

        Brown v. Pounds, 289 Ga. 338 (711 SE2d 646) (2011); Schwartz v. Schwartz, 275 Ga. 107, 109, n. 5 (561 SE2d 96) (2002).

        See Farrar v. Macie, 297 Ga. App. 192, 194-195 (3) (676 SE2d 840) (2009) (dealing with immunity for psychologists licensed under Chapter 39 of Title 43).

       See Hindu Temple, supra at 112 (“The trial court held a hearing on the motion pursuant to OCGA§ 9-11-11.1 (d) [.]”); Metzler v. Rowell, 248 Ga. App. 596, 597 (1) (547 SE2d 311) (2001) (“[T]he statute provides that a claim that could reasonably be construed as infringing upon these rights must be accompanied by a detailed verification and provides for a motion to dismiss and hearing on this issue.”).


author: DOYLE, Presiding Judge.

text:
    A12A0029.
    SUMMERFORD v. THE STATE.
    (728 SE2d 829)
   DOYLE, Presiding Judge.

In this discretionary appeal, Kristopher Summerford challenges the revocation of his first offender probation status based on a new offense of possession of a firearm by a felony first offender. Summer-ford contends that the only evidence of his subsequent offense was inadmissible hearsay, and the evidence was therefore insufficient to support the revocation. We disagree and affirm.

The record shows that Summerford entered a negotiated guilty plea to theft by receiving stolen property, possession of a firearm during the commission of a felony, and carrying a concealed weapon. He was sentenced to serve ten years on probation as a first offender. The State thereafter petitioned the superior court to revoke the probation based on new offenses of possession of a firearm by a first offender probationer and theft by receiving stolen property. The trial court held a hearing on the petition during which Summerford’s probation officer and a detective testified. Based on the testimony at the hearing, the superior court revoked Summerford’s probation for a violation of criminal law and for failure to pay as directed. We granted Summerford’s application for discretionary appeal to examine the sufficiency of the evidence to support the trial court’s findings.

A court may revoke probation based on new violations if the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged. And this Court will not interfere with a revocation absent manifest abuse of discretion on the part of the trial court. Accordingly, if admissible evidence is presented in support of the allegations regarding revocation of probation, this Court will affirm.

Here, the evidence began with testimony from the probation officer that Summerford had failed to pay his probation fees as directed. Thereafter, a police detective testified that Summerford had been implicated during a murder investigation. The detective began testifying as to facts he learned “based on investigation,” and Sum-merford’s counsel objected on hearsay grounds. The trial court sustained the objection, and the detective continued his testimony, explaining that Summerford himself had spoken to the officer and told him that he had committed a burglary with an accomplice in which a .45 caliber weapon was recovered. The following colloquy ensued on direct examination by the State:

Q: Where was the gun recovered?
A: It was during a search warrant, drug search warrant two days after.
Q: And it was in [Summerford’s] home or the home of —
A: No, it wasn’t. Based on my investigation, he sold the gun to the individual that committed the murder.
Q: And so Mr. Summerford stated to you that that’s how this individual came to be in possession of the —
A: No, he stated to me that he took some individuals to Warner Robins to do a burglary, that gun in the commence of that burglary, the gun that he helped retrieve, helped burglarize, was the gun that committed the murder.
Q: And did he admit to having possession at some point of that firearm?
A: He didn’t — he didn’t — he didn’t, per se, that particular firearm, but other people that I investigated did.
Q: Okay. And how did he come to be charged with possession of a firearm by a first offender probationer?
A: Based on statements I received —
Summerford’s Counsel: Objection, hearsay.
Court: Sustained. All right. You finished, [State]?
State: Yes.
[On cross examination by Summerford’s counsel:]
Q: You don’t have any personal knowledge of him having — possessing a firearm, do you?
A: No, he didn’t make a statement saying he did.
Q: Okay. So —
A: That he tried to purchase at least one or two firearms and he also told me that he helped somebody burglarize a house with the firearm.
Q: So he did not make any kind of admission to you that he had —
A: No, he didn’t.
Q: And you don’t have any other witnesses with us here today that he possessed a firearm, do you, sir?
A: Other than statements, no.
Q: Well the statements are not admissible.
A: Apparently not.

Based on this testimony, it is clear that the source of the detective’s testimony that Summerford possessed a firearm was statements made to him by others in the course of the detective’s investigation. Such testimony is hearsay, “has no probative value [,] and is inadmissible in a probation revocation proceeding.” Nevertheless, the detective did testify that Summerford himself told the detective that he had participated in an armed burglary and that the gun used was one that Summerford helped retrieve. Those statements were admissible, and based on this evidence, the trial court was authorized to conclude that Summerford had violated the terms of his probation by possessing a firearm, especially in light of the State’s lower burden of proof at the hearing. Accordingly, based on the record before us, we discern no manifest abuse of discretion by the trial court in revoking Summerford’s probation.

Decided June 14, 2012.

Reza Sedghi, for appellant.

Richard G. Milam, District Attorney, for appellee.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       OCGA § 16-11-131 (b).

       On the day of the revocation hearing, the State, apparently without informing Summer-ford, amended the petition to include burglary as a basis for the revocation. Even if Summerford was notified at the hearing, however, this short notice was inadequate to allow Summerford to prepare his defense and otherwise afford him due process. See Wolcott v. State, 278 Ga. 664, 667 (2) (604 SE2d 478) (2004) (“Due process requires that a defendant be given written notice of the claimed violation of his probation prior to the revocation hearing.”) (citation and punctuation omitted). Therefore, the burglary allegation could not properly serve as a basis for the revocation.

       See OCGA§ 5-6-35 (a) (5); Dean v. State, 177 Ga. App. 123, 124 (1) (338 SE2d 711) (1985).

       (Punctuation and footnotes omitted.) Brown v. State, 294 Ga. App. 1,3 (2) (668 SE2d 490) (2008).

       Id. at 4 (2). See Newsome v. State, 288 Ga. 647, 649-650 (2) (706 SE2d 436) (2011) (“Testimony is considered hearsay if the witness is testifying to another party’s statement in order to prove or demonstrate the truth of the matter asserted in that statement.”).

       Summerford does not challenge the voluntariness of the statements he made to the detective. “A voluntary incriminating statement or confession hy a criminal defendant is admissible as an exception to the hearsay rule.” (Punctuation omitted.) Cwiek v. State, 220 Ga. App. 36, 37 (2) (467 SE2d 608) (1996).


author: Andrews, Judge.

text:
    A12A0074.
    EVANS et al. v. DUNKLEY et al.
    (728 SE2d 832)
   Andrews, Judge.

This appeal involves a dispute between family members over family-owned farm land located in Brooks County. Clara Evans, Loretta Phelps, and Rosa Diann Ojikutu (three of the six surviving children of Charles and Fannie Phelps, both deceased) filed an action in the Brooks County Superior Court in April 2008 asserting an interest in the subject land acquired under the will of Charles Phelps and from the estate of Fannie Phelps. Named as defendants in the action were other family members with interests in the land: Cora Dunkley, Marilyn Williams, and Fanniella Lewis (the three remaining children of Charles and Fannie Phelps); Josiah Phelps (the brother of Charles Phelps and former executor of his will); Robert Simmons, Jr.; Nathaniel H. Abrams, Jr.; and Albert J. Abrams. In addition to seeking partition of the land along with an accounting and division of funds generated from management of the land, the action sought cancellation of allegedly fraudulent deeds — three executor’s deeds and a deed from Charles Phelps to Robert Simmons, Jr.

This appeal by the Plaintiffs in the action is from the grant of the Defendants’ motion for partial summary judgment, and from the denial of the Plaintiffs’ motion for summary judgment. In granting the Defendants’ motion and denying the Plaintiffs’ motion, the trial court ruled that, with the exception of the Plaintiffs’ claim for partition on which genuine issues of fact remain, the Plaintiffs’ claims were barred by res judicata or by the statute of limitation for fraud. For the following reasons, we affirm in part and reverse in part.

The record contains deeds and other allegations purporting to establish that the farm land at issue, comprised of 131 acres more or less, had been owned since the 1950s by Charles W. Phelps, who died in January 1997, and his wife, Fannie W. Phelps, who died in November 1994. At the time of their deaths, Charles and Fannie Phelps were survived by six daughters: Clara Evans, Cora Dunkley, Loretta Phelps, Rosa Ojikutu, Marilyn Williams, and Fanniella Lewis. In January 1993, Charles Phelps deeded a 26-acre tract and a 17-acre tract to his six daughters. In March 1994, Charles Phelps deeded Fannie Phelps a 50% undivided interest in a tract of land containing about 131 acres. Fannie Phelps subsequently died intestate survived by her husband and six daughters, and her estate was never administered. Under the law of descent in effect at the time of Fannie Phelps’s death, she left various undivided interests in the 131 acres to her surviving husband and six daughters. Charles Phelps subsequently died testate owning an interest in the subject land that he acquired by deed or otherwise plus the interest left to him by his wife’s estate. Charles Phelps’s will was probated in solemn form in the Brooks County Probate Court, and letters testamentary were issued to his brother, Josiah Phelps, as executor. The will contained three provisions relating to real property: (1) a provision stating that Charles Phelps’s sisters, Cora Wooten and Lena Abrams, and his brother, Josiah Phelps, each be given a ten-acre tract from the larger tract of land deeded to Charles Phelps in 1950 (recorded in Deed Book 68, page 483 of the Clerk of the Brooks County Superior Court) with the location of all three tracts to be determined by the executor; (2) a provision stating that the estate’s real property interests be given in equal parts to Charles Phelps’s six daughters and his grandson, Robert Simmons, Jr.; and (3) a provision stating that Robert Simmons, Jr., shall remain in a house located on the estate’s property “as long as he so desires, rent free.” In October 1997, acting as executor pursuant to the will, Josiah Phelps identified and deeded three separate ten-acre tracts — ten acres to Cora Wooten, ten acres to Lena Abrams, and ten acres to Josiah Phelps. As a result of these three deeds of ten acres each, other land at issue was allegedly left “landlocked” without means of ingress or egress. In August 1998, acting as executor pursuant to the will, Josiah Phelps deeded a five-eighths (62.5%) undivided interest in real property to Charles Phelps’s six daughters and to Robert Simmons. The real property described in this deed was the same 131 acres previously described in the March 1994 deed from Charles Phelps to Fannie Phelps, “[l]ess and except the devise to Josiah Phelps, Cora Wooten and Lena P. Abram [sic] often acres each” as provided in the will. In August 1998, again acting as executor of the will, Josiah Phelps deeded Robert Simmons, Jr., an interest in the house located on the subject land pursuant to the terms of the will. Three of the daughters (Dunkley, Williams and Lewis) deeded or otherwise relinquished their interest in the three ten-acre tracts and claim no interest in those tracts. As to the ten-acre tract conveyed to Cora Wooten, she conveyed her interest in this tract to her sister, Lena Abrams, who subsequently died testate holding an interest in two of the ten-acre tracts. Acting as executor of Lena Abrams’s estate, Nathaniel Abrams conveyed these two ten-acre tracts to Albert J. Abrams as trustee of a trust created in Lena Abrams’s will for the benefit of several beneficiaries. In March 1999, the Brooks County Probate Court granted Josiah Phelps’s petition for dismissal and discharge as executor of the estate of Charles Phelps.

The same Plaintiffs (Cora Evans, Loretta Phelps, and Rosa Diann Ojikutu) who filed the present Brooks County Superior Court action in April 2008, filed an action in November 2004 in the Peach County Superior Court against Josiah Phelps, individually and as executor of the estate of Charles Phelps. In the Peach County action, the Plaintiffs alleged that Josiah Phelps had been discharged in 1999 as executor of the estate of Charles Phelps, and sought an accounting: (1) for money he received and expended as executor of the estate of Charles Phelps with respect to the estate’s real and personal property, and (2) for money he subsequently received and expended as an individual (after being discharged as executor) with respect to real and personal property he managed in which the Plaintiffs held an interest. In November 2006, the Peach County Superior Court granted partial summary judgment in favor of the defense ruling that the Plaintiffs’ claims for an accounting for Josiah Phelps’s actions as executor of the estate were barred by his discharge as executor on March 2,1999. As to the claim for an accounting for his actions taken as an individual who managed the property after his discharge, the trial court conducted a bench trial and entered a judgment in September 2007 concluding that, after being discharged as executor, Josiah Phelps contacted the Plaintiffs and all interested heirs about management of the property; that he continued to manage the property at issue on behalf of the Plaintiffs and other interested heirs; that he leased the real property; that he made required mortgage payments on the property sometimes using his own money when funds generated by the property were insufficient; and that he ultimately paid off the mortgage in 2006 using settlement proceeds obtained in a class-action discrimination claim filed on behalf of black farmers. The judgment entered in Josiah Phelps’s favor found that he had adequately accounted to the Plaintiffs and other interested heirs for income and expenditures during his management of the jointly held property, and that he had demonstrated “an admirable stewardship of this property.”

1. The Plaintiffs claim that the trial court erred by granting the Defendants’ motion for summary judgment and by denying their motion for summary judgment on the basis that the statute of limitation for fraud had expired.

The trial court erred by applying the four-year statute of limitation for fraud in this case. See OCGA §§ 9-3-30; 9-3-31; Serchion v. Capstone Partners, 298 Ga. App. 73, 74-76 (679 SE2d 40) (2009). The Plaintiffs’ complaint requested that the court exercise its equitable power to cancel allegedly fraudulent deeds. The period of limitation for this equitable claim was seven years from the date the deeds sought to be cancelled were executed. Id.; Payton v. Daughtry, 223 Ga. 438, 439 (156 SE2d 29) (1967). The present suit was filed in April 2008 seeking cancellation of deeds executed more than seven years earlier — three deeds executed by Josiah Phelps as executor in 1997 and one deed executed by Charles Phelps prior to his death in 1997. At least as to the three deeds conveyed by the executor, the Plaintiffs claim that fraud by the executor, who owed them a fiduciary obligation, deterred or prevented them from timely filing suit. The rule in considering these claims is that the seven-year period does not commence until the fraud is or should have been discovered in the exercise of due diligence, absent a confidential or fiduciary relationship which justified reliance. Stephens v. Walker, 193 Ga. 330, 331-332 (18 SE2d 537) (1942); Jones v. Spindel, 239 Ga. 68, 69 (235 SE2d 486) (1977). Although the trial court ruled that there was no evidence that fraud prevented the Plaintiffs from timely filing their claim within the four-year statute of limitation for fraud, the court did not consider whether fraud prevented the Plaintiffs from timely filing within the applicable seven-year period. Accordingly, we reverse the trial court’s grant of summary judgment to the Defendants and denial of summary judgment to the Plaintiffs on the issue of the limitation period applicable to the claims for cancellation of fraudulent deeds.

2. The Plaintiffs claim that the trial court erred by granting the Defendants’ motion and denying their motion on the issue of the application of the doctrine of res judicata.

The doctrine of res judicata provides that the judgment of a court of competent jurisdiction is conclusive between the same parties and their privies “as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered. . . .” OCGA § 9-12-40. “The purpose of the doctrine is to prevent the re-litigation of claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.” Crowe v. Elder, 290 Ga. 686, 688 (723 SE2d 428) (2012). Thus, res judicata bars re-litigation of matters in a subsequent action that were or could have been litigated in a prior action where, between the two actions, there is identity of the parties or their privies; identity of the cause of action; and an adjudication on the merits by a court of competent jurisdiction in the prior action. Labovitz v. Hopkinson, 271 Ga. 330, 332 (519 SE2d 672) (1999). As to identity of the parties, res judicata “does not require that all parties on the respective sides of litigation in both cases be identical, but only those by and against whom the defense of res judicata is invoked.” (Citation and punctuation omitted.) Waggaman v. Franklin Life Ins. Co., 265 Ga. 565, 566 (458 SE2d 826) (1995). The causes of action, however, must be identical, and “[t]he fact that the subject matter of different lawsuits may be linked factually does not mean that they are the same ‘cause’ within the meaning of OCGA § 9-12-40.” (Citation and punctuation omitted.) Morrison v. Morrison, 284 Ga. 112, 115 (663 SE2d 714) (2008).

The Plaintiffs’ present complaint asserted claims for cancellation of three deeds fraudulently conveyed by Josiah Phelps while acting as executor of the estate of Charles Phelps, and one deed conveyed by Charles Phelps. Although the Plaintiffs’ prior Peach County Superior Court action against Josiah Phelps for an accounting of funds received and expended while managing the property at issue is factually linked to the present action for cancellation of deeds, these are different causes of action within the meaning of the res judicata doctrine set forth in OCGA § 9-12-40. As to the claims for cancellation of deeds, the trial court erred by granting the Defendants’ motion for summary judgment and denying the Plaintiffs’ motion for summary judgment on the issue of res judicata.

The Plaintiffs’ present complaint also asserted a claim for an accounting against the Defendants for actions taken while managing property in which the Plaintiffs hold an interest. In their motion for summary judgment, the Plaintiffs concede that, “the question of an accounting was previously litigated in the Superior Court of Peach County,” which rendered its judgment in that case in September 2007. Accordingly, we find that, as to any claim for an accounting prior to the date of the Peach County Superior Court judgment, the trial court correctly granted the Defendants’ motion for summary judgment and denied the Plaintiffs’ motion for summary judgment on the issue of res judicata. But to the extent the Plaintiffs’ present action seeks an accounting with respect to management of the property after the judgment in the Peach County Superior Court, we conclude that this claim presents a new and different cause of action for a subsequent accounting and res judicata does not apply. See Trend Dev. Corp. v. Douglas County, 259 Ga. 425, 427 (383 SE2d 123) (1989). As to the claim for an accounting after the judgment in the Peach County Superior Court, the trial court erred by granting the Defendants’ motion for summary judgment and denying the Plaintiffs’ motion for summary judgment on the issue of res judicata.

Decided June 14, 2012.

Edwards & Youmas, Lonzy F. Edwards, for appellants.

Vann K. Parrott, for appellees.

3. The Plaintiffs contend that the trial court erred by denying their motion for summary judgment to the extent it sought a ruling that the Defendants had no legal basis to assert the defense of adverse possession as to the three separate ten-acre tracts which Plaintiffs claim were fraudulently deeded by the executor of the estate of Charles Phelps. The trial court’s summary judgment orders show that the court found it unnecessary to reach this issue because of its rulings barring Plaintiffs’ claims on the basis of the statute of limitation for fraud and the doctrine of res judicata. An issue not ruled on by the trial court presents no issue on appeal. Kirkland v. Earth Fare, Inc., 289 Ga. App. 819, 820-821 (658 SE2d 433) (2008).

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Boggs, J., concur.

       The record contains allegations that Charles Phelps died with an interest in real property at issue that he inherited from the estate of Levi Hall.

       On appeal, the Plaintiffs argue only that res judicata did not bar their claims based on fraud.