author: MCMILLIAN, Judge. DILLARD, Judge,

text:
    A13A0326.
    MAULDIN v. MAULDIN et al.
    (745 SE2d 754)
   MCMILLIAN, Judge.

Elizabeth Mauldin, pro se, appeals the final order entered by the superior court awarding joint legal custody of her daughter, O. M., to the child’s father, Russell Edward Mauldin, and paternal grandparents, Ronald and Pat Mauldin, with primary physical custody to the grandparents. We affirm for the reasons set forth below.

Generally, “[a]ny change in custody is subject to the trial court’s discretion based on the best interests of the child. We view the evidence in favor of upholding the trial court’s order and will affirm if there is any reasonable evidence to support the decision.” (Citations omitted.) Fifadara v. Goyal, 318 Ga. App. 196, 197 (733 SE2d 478) (2012). In this case, however, because the superior court placed joint legal and primary physical custody in the grandparents, and not the mother, the evidence supporting the decision must be clear and convincing. Clark v. Wade, 273 Ga. 587, 599 (IV) (544 SE2d 99) (2001).

The mother and father were married in 2001; their daughter, O. M., was born in February 2002; and they were divorced in 2003. The divorce and custody agreement, as subsequently modified, apparently awarded the mother primary custody of O. M. and granted the father visitation rights. On July 29, 2008, the father filed a “Petition to Modify Parenting Time and Child Support,” seeking to increase his visitation with O. M. and to decrease his payment of child support. The mother, who was represented by counsel in the proceedings below, opposed the petition and filed a counterclaim for contempt based upon the father’s failure to comply with the terms of the divorce decree, including the failure to pay child support. In February 2010, the father filed a motion for contempt based upon the mother’s failure to appear or produce O. M. at the time of his scheduled visitation. The superior court ordered the parties to mediation, which was unsuccessful, but the mother and father subsequently reached a preliminary agreement on visitation, and on April 26, 2010, the superior court issued an order memorializing that agreement “pending the outcome of [the mother’s] petition filed in the Juvenile Court of Murray County” to terminate the father’s parental rights.

The paternal grandparents subsequently filed a motion to intervene in the action, seeking custody of O. M. The mother apparently filed a motion opposing the intervention, although it does not appear in the record, but she failed to appear at the hearing on the issue. Following that hearing, on June 29, 2010, the trial court entered a temporary order, granting the paternal grandparents’ motion to intervene and placing O. M. in their sole legal and physical custody. Approximately ten days later, Bobby Lee and Peggy Louise Humble, O. M.’s maternal grandparents, filed their own petition to intervene, seeking custody of the child. The superior court later granted the request to intervene, but maintained custody in the paternal grandparents. On August 3, 2010, the superior court appointed a guardian ad litem to represent O. M.’s interest in the proceedings.

During a second court-ordered mediation, the parties reached an agreement regarding certain issues, but the custody issue remained unresolved. At a subsequent hearing on August 18, 2011, the parties announced their agreement to submit the issue of custody to the superior court on stipulated evidence, along with an ex parte interview of the child by the trial judge, in lieu of an evidentiary hearing. The superior court issued its final order granting custody to the paternal grandparents and the father, with visitation to the mother, based on this evidence.

In the mother’s initial appeal of this order, this Court was unable to determine whether the appellate record contained all of the stipulated evidence and accordingly remanded the case to the superior court for completion of the record. Following remand, the superior court held a hearing to show the parties the court’s proposed supplement to the appellate record and to ensure it was complete. In this appeal, the mother once again challenges the superior court’s final custody order.

1. The mother asserts that the superior court erred in exercising jurisdiction in this case in light of the pending termination proceeding before the Juvenile Court of Murray County.

Under the Georgia Constitution, superior courts have “jurisdiction in all cases, except as otherwise provided in this Constitution.” 1983 Ga. Const., Art. VI, Sec. IV, Par. I; Brine v. Shipp, 291 Ga. 376, 377 (1) (729 SE2d 393) (2012). Included in this expansive grant of authority is “original jurisdiction over contests for permanent child custody in the nature of a habeas corpus between parents, parents and third parties, or between parties who are not parents.” (Citations and punctuation omitted.) Stone-Crosby v. Mickens-Cook, 318 Ga. App. 313, 314 (1) (733 SE2d 842) (2012). See also OCGA § 19-6-14 (superior court has jurisdiction to determine custody “until the final judgment in [a divorce] case”).

In contrast, the Georgia Constitution grants courts of limited jurisdiction, including juvenile courts, only such jurisdiction as “provided by law.” 1983 Ga. Const., Art. VI, Sec. III, Par. I. And under OCGA § 15-11-28 (a) (1) (C), juvenile courts are granted “exclusive original jurisdiction” over an action in which a child “is alleged to be deprived,” which jurisdiction encompasses an award of temporary custody of a child who is adjudicated deprived. Ertter v. Dunbar, 292 Ga. 103, 104-105 (734 SE2d 403) (2012). Under certain circumstances, therefore, a juvenile court and a superior court may share concurrent jurisdiction over the temporary custody of children. See Long v. Long, 303 Ga. App. 215, 218 (2) (692 SE2d 811) (2010). But juvenile courts “[do] not have authority to award permanent custody without a transfer order from a superior court. OCGA § 15-11-28 (c) (1).” Ertter v. Dunbar, 292 Ga. at 105. The record in this case contains no order transferring the issue of custody to any juvenile court; therefore, the superior court retained and properly exercised its jurisdiction to award permanent custody of O. M. See also Stone-Crosby, 318 Ga. App. at 314 (1) (“even when a termination petition is brought in the juvenile court, if it is merely a ‘disguised custody matter’ it is not within the [juvenile] court’s jurisdiction”) (citation omitted).

2. The mother also raises a number of issues regarding the stipulated evidence considered by the superior court in issuing its final order.

(a) The mother first asserts that the superior court erred by rendering a ruling based on documents “not recorded in the superior court” before it issued its final decision. She asserts that no “substantiating evidence” exists to demonstrate that the superior court had possession of these documents before it ruled.

But the record is clear that the parties, including the mother, agreed at the August 18, 2011 hearing to stipulate to the admission of certain evidence, including doctors’ reports and notes, a video deposition of one of the doctors, school records and the guardian ad litem’s report. Some of this evidence was not available at the hearing, and the superior court asked the parties to provide the additional evidence in an expedited manner. The superior court also indicated that all of the parties should get copies of this evidence, so that “everybody know[s] what the Court is looking at.” Although these documents were not formally marked for admission into evidence at that time, the parties were in agreement that the documents were to be submitted as evidence for the superior court to consider in issuing its ruling.

Following this Court’s remand of the original appeal, the superior court invited the parties to review and confirm the stipulated documents the court intended to submit as part of the appellate record. The documents were marked as separate exhibits at that time and paginated for inclusion in the appellate record. The superior court stated on the record that the supplemented documents were those submitted by the parties and considered by the court. Moreover, the superior court clarified that it considered only the actual records and not any attorney-prepared summaries in issuing its final order. The mother, who was representing herself pro se, had the opportunity to review the documents prior to their submission to this Court. The record does not indicate that she, or any other party, raised any formal objection to the superior court’s proposed submission. Moreover, the mother does not identify any particular omissions or inclusions in the appellate record that do not accurately reflect the documents considered by the superior court. Accordingly, we find no error.

(b) The mother also argues that the superior court erred in relying upon this stipulated evidence because it was hearsay. But by stipulating to the admissibility of the documentary evidence, the mother induced any error and cannot complain that the evidence was hearsay. Haralson v. Moore, 236 Ga. 131, 132 (2) (223 SE2d 107) (1976). See also OCGA § 15-11-56 (a) (“in all proceedings involving custody of a child, all information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent” in a hearing).

(c) The mother further asserts that the superior court erred in allowing any reference in the stipulated evidence to Parent Alienation Syndrome because she asserts that it is an unfounded and scientifically invalid theory not recognized by the American Psychiatric Association. But the mother not only failed to raise this argument below, she stipulated to the admissibility of the reports and video deposition that reference this syndrome. And as previously noted, she “cannot now complain of a result [she] aided in causing.” (Citation and punctuation omitted.) Camp Cherokee, Inc. v. Marina Lane, LLC, 316 Ga. App. 366, 371 (2) (729 SE2d 510) (2012).

3. The mother contends that the superior court abused its discretion in awarding custody of O. M. to the father and paternal grandparents without finding that she was unfit and in so doing, the court violated her constitutional rights as a parent.

(a) The mother is correct that “a parent has a right of custody to her child in preference to a third party unless there is clear and convincing evidence that the parent is unfit.” (Citation omitted.) Harris v. Snelgrove, 290 Ga. 181, 182 (2) (718 SE2d 300) (2011). And

[t]he focus of such a determination of unfitness must be the parent’s ability to provide for the child in a manner sufficient to preclude the need for an entity of the government to intervene and separate the child from the parent, and a court is not permitted to terminate a parent’s natural right to custody merely because it believes that the child might have better financial, educational or moral advantages elsewhere, that is, the parent’s ability to raise her child is not to be compared to the fitness of a third person. [Cit.] OCGA § 19-7-1 (b.l).

Id. at 182 (2). A finding of parental fitness is restricted to a consideration of “the parent’s present fitness,” and a court may not rely “on evidence of the parent’s past unfitness or compare the parent’s ability to raise the child with the superior fitness of a third person.” (Citations omitted.) Clark, 273 Ga. at 591 (II).

In Georgia, custodial disputes between a parent and a third-party relative are governed by OCGA § 19-7-1 (b.l), which establishes “a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child.” Our Supreme Court has determined, however, that three presumptions are actually implicit in the statute: “(1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child’s best interest is to be in the custody of a parent.” Clark, 273 Ga. at 593 (II). The Supreme Court has held, however, that a third-party relative can overcome these presumptions by showing by clear and convincing evidence that parental custody would result in harm to the child, i.e., “either physical harm or significant, long-term emotional harm,” not “merely social or economic disadvantages.” Id. at 598 (IV). Once a third-party relative has overcome the presumption, he or she must further prove “that an award of custody to him or her will best promote the child’s health, welfare, and happiness.” Id.

Clark, which was a plurality decision, originally applied this standard in two cases involving parental reunification, i.e., where a noncustodial parent sought to regain custody from custodial third parties. 273 Ga. 587. Here, the mother cites Justice Sears’ concurring opinion in Clark, in which she distinguished reunification cases from those “in which a third party seeks to break apart an intact parent-child relationship by seeking custody of [a parent’s] child.” Justice Sears urged the application of an “even more stringent standard” in the latter cases, stating that “[i]n such ‘removal’ cases, only the traditional parental fitness test can be constitutionally applied, resulting in the removal of the children only when the parents ‘are incapable of taking adequate care of their children.’ ” (Citations omitted.) Id. at 600-601. The mother urges us to adopt this purportedly higher standard of unfitness in this case.

In Harris, however, all seven justices of the Supreme Court equated the Clark “harm” standard with the parental unfitness standard in a removal case, in which the paternal grandparents intervened in the parents’ divorce action to obtain custody of their grandson. 290 Ga. at 182-183 (2). Thus, in Georgia, the Clark “harm” standard applies in both reunification and removal cases. Accordingly, “the appropriate standard of proof [in this case] is the ‘best interest of the child’ standard set forth in OCGA § 19-7-1 (b.l) as narrowly construed in Clark... to recognize parents’ constitutionally protected interest in the care, custody, and management of their children.” Lopez v. Olson, 314 Ga. App. 533, 540 (3) (724 SE2d 837) (2012).

The superior court applied this standard in considering the custody of O. M. and also followed the Supreme Court’s instruction that when “considering the issues of harm and custody, trial courts should consider a variety of factors that go beyond the parent’s biological connection or present fitness to encompass the child’s own needs.” Clark, 273 Ga. at 598 (IV).

These factors should include: (1) who are the past and present caretakers of the child; (2) with whom has the child formed psychological bonds and how strong are those bonds; (3) have the competing parties evidenced interest in, and contact with, the child over time; and (4) does the child have unique medical or psychological needs that one party is better able to meet.

(Citations omitted.) Id. at 598-599 (IV).

In applying these factors to the evidence of record, the superior court concluded, by clear and convincing evidence that, although both parents may be “teachable” and they mean well, “an award of custody to either parent is not in the child’s best interest and that the statutory presumption in favor of the parents has been rebutted.” In making that finding, the superior court necessarily found that the evidence rebutted the implicit presumption under OCGA § 19-7-1 (b. 1) that the mother was a fit person entitled to custody. Accordingly, we interpret the superior court’s order as making the necessary finding of parental unfitness as defined in Clark and Harris.

(b) In support of this finding, the superior court found, in a very thorough and well-reasoned order, that O. M. had “significant mental health issues,” and that it was “the consensus of the mental health professionals who had seen [the child] that many of her problems are the result of the extremely high conflict between Mother and Father.” The court also found that the mother promoted this conflict “by her efforts to alienate [O. M.] from the father and his family”; “failed to set limits or discipline” the child; or “to recognize and deal with the child’s disruptive behavior.” The mother denied the diagnosis of her daughter’s condition, and neither parent followed early professional advice on behavior modification techniques for the child. The superior court further found that O. M.’s behavior continued to deteriorate while in the mother’s custody. The court also found that mental health experts had “grave concern” for the child’s future behavior and mental health if the child did not receive consistent and intensive therapy.

The superior court’s analysis focused on two of the four Clark factors: the child’s psychological bonds and the child’s unique medical or psychological needs that one party is better able to meet. Although the court found that O. M. and her mother had a very strong bond, it noted one doctor’s conclusion that it was not altogether a healthy bond. The court noted that

[a] strong bond would be a plus in most cases, but given Mother’s manipulation of this child, her attempts to poison this child against Father and his family, and her failure to follow through on recommended behavior modification for this child, this bond has certain negative aspects.

The superior court also addressed the fourth factor, noting the parents’ failure to address the child’s “unique and serious psychological needs” on a consistent basis and found, “in fact, their actions contributed to making the situation worse.”

We conclude that the superior court’s findings are supported by clear and convincing evidence.

A review of the appellate record demonstrates that each of the therapists who evaluated O. M. diagnosed significant behavioral and emotional issues, and they all recommended continued, intensive therapy, including family therapy. Dr. David Stevens, whom O. M. began seeing in 2003 when she was one year old, diagnosed her with Oppositional Defiant Disorder (“ODD”) in November 2006, when she was just four years old. When she was seven, he added a diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”). During the custody dispute, O. M. also began seeing Dr. Louisa Branscomb whose therapy focused on diagnoses of ODD, Intermittent Explosive Disorder (“IED”), Adjustment Disorder, with mood instability and problems with aggression, manipulative behavior, and impulsivity. Dr. Branscomb emphasized that “[O. M.] has a very severe and complex presentation of mental health problems, which are in large measure related to ongoing severe conflict in her family environment particularly as relates to custodial issues.” She found that O. M.’s “level of problems in aggression and mood are severe.” The doctor expressed concern that the child’s behavior could evolve into “frank Bipolar Disorder as well as possible personality disorder traits as she gets older.” O. M. was also seen as part of a custody evaluation by Dr. William Hillner, who diagnosed her with ODD and Adjustment Disorder.

But, as the superior court found, the mother failed to take the child’s behavioral issues seriously, denying Dr. Stevens’ ODD diagnosis. Although the mother took O. M. for occasional psychotherapy visits with Dr. Stevens beginning in 2003, neither the mother nor the father followed through on his early advice to address the child’s behavioral issues. Dr. Hillner found that the mother and O. M. have an “enmeshed relationship,” which is exacerbated by the fact that the mother allowed the child to sleep with her until the age of eight. He stated that O. M. seemed more regressive and immature with her mother. Additionally, the mother had difficulty identifying any weaknesses in O. M., and had an unwillingness to recognize her own faults. She consistently blamed others for 0. M.’s behavioral issues, taking no responsibility herself. For example, despite the consistent diagnosis of ODD, Dr. Hillner noted that the mother believes that O. M. is not oppositional all the time; rather, the mother thinks that she just has difficulty adjusting to boundaries, which the mother attributed to the custodial situation. Dr. Stevens also acknowledged that the mother’s management and discipline skills could be improved, noting that the mother “let [O. M.] call the shots too much.”

While in her mother’s custody, O. M. exhibited numerous behavioral problems at school. On one occasion, when O. M. was seven, she threatened to stick a pencil in another child’s neck and to kill her. O. M. received in-school suspension as a result of this incident, and a few months later, she received one day of out-of-school suspension for “being defiant.” The mother complained to Dr. Stevens at the time of this incident that the teacher was too lenient and that the counseling advice she had received was not effective. Dr. Hillner noted that the mother did not take 0. M.’s threats to harm the other child seriously and blamed the other student. Dr. Hillner observed that the mother smiled when she spoke of the incident. On another occasion when O. M. exhibited behavioral problems in school, the mother attributed the problems to “inherited traits” from the father, stating the father “does not want to [accept] responsibilities for [his] actions, just like [O. M.].”

Dr. William Walker, who was the mother’s therapist for the three-month period immediately preceding the superior court’s custody decision, agreed from reading the other doctors’ reports that the conflict between the parents was harmful to O. M., and that she received poor parenting from her mother and father “in ways that have hindered her development and security.” He also agreed that the mother was overnurturing, permissive and enmeshed with the child, so that she is overprotective and somewhat spoiled.

Dr. Hillner noted significant indications that the mother and her parents had alienated O. M. from the father and his family, including a lack of cooperation and inability to co-parent. He noted that O. M.’s comments regarding her father did not justify the level of hatred she appeared to have for him. Like the mother, she “could not identify a single positive quality associated with her father.” These observations were confirmed by Dr. Branscomb. At one point during the custody dispute, the father and the paternal grandparents began supervised visitation after a nine-month period in which they claim the mother did not allow them to see O. M. According to the guardian ad litem’s report, the director of the facility where these visits occurred testified at an earlier hearing that the visits went very poorly. He indicated that 0. M.’s inability to visit with the father and his parents was the worst case he had ever seen. The mother’s reaction to these problems was to recommend discontinuing visitation with the father or his family.

After the superior court transferred custody to the paternal grandparents, the maternal grandparents, with the mother’s knowledge, circulated a “wanted”-style poster encouraging the public to look for 0. M., which Dr. Hillner noted could cause “a serious incident” for the paternal grandparents. Dr. Stevens also acknowledged that the mother had “made mistakes” in alienating 0. M. against her father and noted that the child’s relationship with her father has “major damage.” He noted that the mother and O. M. “tend to feed off of each other in [a] negative way regarding [the father], resulting in [the] alienation of [the father], [which has not been] helped by [the father’s] own behavior and inconsistent presence.” Dr. Branscomb noted that O. M. felt torn between the two sides of her family and that she feels especially guilty when she says positive things about the Mauldins. She stated that, even putting the issue of parental alienation syndrome aside, any child will have difficulties reaching behavioral and emotional milestones if disparaging behavior or animosity existed between the parents. And with a child like O. M., who already had ODD and IED and was already polarized, such behaviors would only increase the likelihood that she would remain angry and unable to resolve her issues.

Accordingly, the evidence demonstrates that O. M. is a child with severe problems that the mother refused to acknowledge and failed to address. Although the record also shows that during supervised visitation, the mother followed professional parenting advice and attempted to behave in a more neutral fashion with regard to the father and his parents, the record contains no evidence demonstrating that the mother ever acknowledged the child’s problems or her role in causing and perpetuating them, and thus as the superior court found, no evidence existed in the record that O. M.’s needs would be met if she were returned to her mother. Under these circumstances, we find that clear and convincing evidence supported the superior court’s finding that the presumption in favor of parental custody had been rebutted.

4. The mother also contends that the superior court did not properly determine the best interests of the child, but instead ruled based on the court’s prejudice against her, as evidenced by the court’s finding in its June 29, 2010 order that “it is clear that the Mother hates the Father more than she loves her child.” We disagree.

The superior court based its conclusion that custody in the paternal grandparents would be in the best interests of O. M. on the parents’ failure to meet 0. M.’s needs. As the superior court noted, after the parental grandparents received custody, they immediately sought therapy for the child, consulted various therapists, and implemented their advice. Their actions, along with the father’s increased involvement and consistent discipline of O. M., resulted in some improvement in the child’s behavior by the time of the court’s decision. Acknowledging that the therapists believe that substantial work remained for O. M., the superior court found that only the paternal grandparents “have shown both the will and the ability to meet [O. M.’s] needs.” The superior court also found no evidence that if the child were returned to the mother that these needs would be met because the mother denied the diagnosis of her child’s condition and failed to take responsibility for the role her own actions played in O. M.’s problems.

The record shows that after the paternal grandparents received custody, Dr. Branscomb noted that O. M.’s behavior improved with more visitation from her mother, with her father more involved in the discipline and the setting of limits, with his spending time with her, and with medication. She observed in March 2010 that although the child enjoyed spending time with her father, she still showed a lack of attachment to him, indicating that their relationship still needed a lot of work. Additionally, she indicated that O. M. had a very long way to go with her therapy, noting that she was “still quite a disturbed child.” Dr. Hillner agreed that O. M.’s problems required continued treatment. Dr. Branscomb said O. M. had enormous potential, describing her as funny, bright, creative, and insightful, but she noted that O. M. has severe problems that cannot easily resolve if the animosity in her family continued. Thus, a stable, neutral environment was extremely important for O. M. Dr. Branscomb explained that O. M. was struggling to get out of the middle of the family conflict and that the parties should do anything they can to reduce this conflict and to promote a more cooperative, positive environment for the child. The other therapists agreed and made recommendations that O. M., and her family, continue therapy.

Decided June 28, 2013

Elizabeth Mauldin, pro se.

Accordingly, in determining the best interests of the child, the superior court had to consider who among the parties would be more likely to provide O. M. with the environment and consistent treatment she needed. Although the therapists recommended against removing O. M. from her mother’s custody, the trial court was not required to adopt their recommendations. And, in fact, the guardian ad litem recommended against awarding custody to the mother given her unwillingness to cooperate with the father and his family and her lack of understanding with regard to O. M.’s diagnoses and need for therapy.

Based upon our review of the record and the arguments of the parties, we conclude that the record contains clear and convincing evidence to support the superior court’s finding that the child’s best interests would be served by the custody arrangement it adopted. Thus, we conclude that the superior court’s decision was based on the evidence and was not the result of any prejudice against the mother.

Judgment affirmed.

Andrews, P. J., concurs. Dillard, J., concurs fully in Divisions 1, 2, and 4 and in judgment only as to Division 3.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only as to Division 3 of the majority opinion because I do not agree with all that is said by the Court in that division of the opinion. As such, Division 3 of the majority’s opinion may not be cited as binding precedent in future cases. See Court of Appeals Rule 33 (a).

McDonald, Thames & Ray, Joel P. Thames, Vaughn & Clements, Jesse L. Vaughn, Katherine L. O’Gwin, for appellees.

       The record reflects that the mother filed her termination petition on April 5, 2010.

       The mother’s appellate brief raises a number of enumerations of error, hut it does not comply with Court of Appeals Rule 25 (c) (1), which states: “The sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.” Rather, her brief consists of one long argument addressing many issues, some of which were raised in the enumerations and some of which were not. Nevertheless, the Court will attempt to address each of the errors enumerated to the extent they are supported by argument or citation of authority. See Birchby v. Carboy, 311 Ga. App. 538, 540 (1) (716 SE2d 592) (2011).

       Moreover, we note that the mother consented to the submission of the custody issue to the superior court at the August 18, 2011 hearing. At that hearing, her counsel stated that the parties were “ready for a resolution,” and “everybody here wants to move forward. I mean, we’re willing to proceed...”

       We note, however, that no finding of parental unfitness was required for placing the child with the father in lieu of the mother. Rowden v. Rowden, 290 Ga. 65, 66 (1) (717 SE2d 469) (2011). But because the paternal grandparents were awarded both joint legal custody and sole physical custody of O. M., we analyze this case as a third-party custody dispute.

       “Parents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children. This right to the custody and control of one’s child is ‘a fiercely guarded right that should be infringed upon only under the most compelling circumstances.’ ” (Citation and punctuation omitted.) Clark, 273 Ga. at 596-597 (III). “Aligned against the parents’ constitutional right is the child’s constitutional right to protection of his or her person and the state’s compelling interest in protecting the welfare of children.” (Citations omitted.) Id. at 597 (III).

       In contrast, the mother could not identify any of the father’s strengths, which Dr. Hillner described as a “serious liability” on the part of the mother.

       They also appeared at the courthouse with a large sign on a pickup truck reading, “Justice for [O. M.]” and created a website with a similar tag line.

       Due to the strong enmeshed nature of the relationship between the mother and O. M., Dr. Hillner expressed concern that separating the two might cause the child significant trauma; nevertheless, he said he had serious concerns about the mother. Dr, Hillner recommended split custody between the mother and the paternal grandparents. Dr. Walker recommended working toward joint custody between the mother and the grandparents. Dr. Stevens advised against and disapproved of the superior court’s decision removing the child from her mother’s custody.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A13A0606.
    GEORGIA DEPARTMENT OF TRANSPORTATION v. GRIGGS.
    (745 SE2d 749)
   ANDREWS, Presiding Judge.

The Georgia Department of Transportation (GDOT) appeals from the trial court’s order denying its motion to dismiss Kymberly Griggs’s complaint. Griggs sued GDOT after she fell through a piece of plywood covering a manhole or storm drain on the shoulder of 1-285. GDOT moved to dismiss, contending that Griggs’s ante litem notice failed to adequately identify the location of the accident. The trial court denied the motion, and we affirm.

The record shows that Griggs stopped her car in the emergency lane of 1-285 between Riverside Drive and Roswell Road to help a friend who had been in an automobile accident. As Griggs walked from her friend’s car back to her car, she went to the passenger’s side door because it was away from the traffic lanes. As she opened the door, she stepped back onto a plywood hoard that was covering a manhole. The plywood gave way and Griggs fell into the manhole, fracturing her elbow and knee, receiving cuts and bruises, and hurting her lower back. Apparently, the grate that was supposed to cover the manhole had been removed by thieves who had then placed a thin plywood board over the hole. There were no warning cones around the hole, and trash from the roadway partially obscured the plywood cover.

Griggs called GDOT on the day of her fall and described the area in which she fell. She stated that it was on 1-285 eastbound approximately three-quarters of a mile past Riverside Drive. Charlie Welmaker, GDOT’s safety officer for the district, took the phone call and then instructed the GDOT foreman for the area to inspect all manholes and storm drains in the area described. Welmaker stated that several weeks earlier, a number of storm drain grates had been stolen from that general area. The thieves’ modus operandi was often to place a piece of plywood over the drain in order to delay detection. Welmaker stated that all of the vandalized storm drains were fitted with temporary covers and marked with orange cones, and his inspection showed that all of these temporary covers and cones were in place. An expanded inspection revealed that storm drains on the other side of Roswell Road, approximately two miles east of the location described by Griggs were without grates.

Griggs’s fall occurred on March 13,2009, and she served her ante litem notice on the State on March 9, 2010. The ante litem notice described the location of the accident as follows: “This manhole was located on the emergency lane of Interstate 285 northbound between Riverside Drive and Roswell Road in Atlanta, Fulton County, Georgia.” After receiving the ante litem notice, GDOT made an offer of final settlement of the claim to Griggs. The offer was not accepted.

On April 11, 2011, GDOT filed a motion to dismiss, claiming that the action was one for professional negligence and there was no affidavit attached. In response, Griggs pointed out that she had made no claims of professional negligence and that this was an action for ordinary negligence. The trial court agreed.

On May 8, 2012, GDOT filed another motion to dismiss, claiming that it could not find the open manhole (or storm drain) in the area identified by Griggs. Therefore, it argued, the complaint should be dismissed for lack of subj ect matter jurisdiction because Griggs failed to comply with the ante litem notice requirements of OCGA § 50-21-26. Under that Code section, anyone wishing to file a tort claim against the State under the Georgia Tort Claims Act must first give notice to the State as follows:

A notice of claim under this Code section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following: (A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (B) The time of the transaction or occurrence out of which the loss arose; (C) The place of the transaction or occurrence; (D) The nature of the loss suffered; (E) The amount of the loss claimed; and (F) The acts or omissions which caused the loss.

OCGA § 50-21-26 (a) (5).

In determining whether plaintiffs have complied with this requirement, the Supreme Court has stated:

It is well established that strict compliance with the notice provisions is a prerequisite to filing suit under the GTCA, and substantial compliance therewith is insufficient. Williams[ v. Ga. Dept. of Human Resources, 272 Ga. 624 (532 SE2d 401) (2000)]. This is because the GTCA represents a limited waiver of the State’s sovereign immunity, crafted, as is constitutionally authorized, by our Legislature, and not subject to modification or abrogation by our courts. Sylvester v. Dept. of Transp., 252 Ga. App. 31 (555 SE2d 740) (2001). Thus, it has been held that a notice that failed to include any specific dollar amount or range of losses claimed but rather asserted only “economic and non-economic losses” was deficient, Perdue v. Athens Technical College, 283 Ga. App. 404, 406, 408 (641 SE2d 631) (2007); that dismissal was required where the notice was delivered to the DOAS Commissioner rather than to the Risk Management Department, Welch v. Georgia Dept. of Transp., 276 Ga. App. 664 (624 SE2d 177) (2005); and that an untimely notice was deficient even though it was undisputed that the State had actual notice of the claim through a timely notice submitted by a second claimant. Williams v. Georgia Dept. of Transp., 275 Ga. App. 88 (1) (619 SE2d 763) (2005). Likewise, this Court has held that the omission in a notice of a possible claim for wrongful death required the dismissal of that portion of the claimant’s complaint seeking damages for wrongful death. Williams, supra, 272 Ga. at 626.

Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 824 (653 SE2d 729) (2007).

But in requiring that notice be

to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the Act’s ante litem notice provisions clearly contemplate the possibility that a claimant may have imperfect information regarding various facets of [her] claim at the time [the] notice is submitted.

Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 509 (672 SE2d 471) (2009). In Canas, the Board of Regents claimed that the ante litem notice failed to state with any specificity the time or place of the occurrence or the acts or omissions that occasioned the loss. Id. at 509. Canas’s notice referenced the continuous period of his treatment at the Board’s hospitals and clinics and referenced the failure of Board employees to take steps that would have led to an earlier detection of his HIV infection/AIDS. In upholding the trial court’s denial of the motion to dismiss, we noted that the language in the ante litem notice clearly contemplates a situation where the claimant may have “imperfect information” at the time the notice is submitted. Id.

Decided June 28, 2013.

Samuel S. Olens, Attorney General, Sharon P. Horne, Bryon A. Themes, Assistant Attorneys General, for appellant.

Thomas F. Cuffie, George L. French, Harold W. Spence, for appellee.

In this case, the evidence is that Griggs identified the portion of 1-285 on which the accident occurred to the extent that she knew it. GDOT has not shown otherwise. In its response to discovery, GDOT acknowledges that the area in question is a 1.6-mile stretch of 1-285 between its intersections with Riverside Drive and Roswell Road. GDOT acknowledges that it can identify the locations of the storm drains and manholes along that part of the interstate. Further, “[t]he purpose of [the ante litem notice] requirements is to ensure that the state receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit.” Williams, supra, 272 Ga. at 625. Here, the ante litem notice was filed, the State investigated the claim, and then made Griggs an offer of settlement. In Cummings, supra, the Court noted that “it was reasonable for Cummings to believe that her notice was sufficient in all respects where the State initiated and proceeded with settlement negotiations over a period of months without once indicating that Cummings had failed to identify the correct agency.” Id. at 826, n. 4.

GDOT cites as authority for its argument Simmons v. Mayor and Alderman of the City of Savannah, 303 Ga. App. 452 (693 SE2d 517) (2010); but that case does not interpret the Georgia Tort Claims Act or OCGA § 50-21-26 (a) (5). Simmons interprets OCGA § 36-33-5 (b) which sets out the notice requirements for claims against municipalities, a differently worded Code section. In light of this, and for all of the reasons discussed above, we conclude that the trial court did not err in denying GDOT’s motion to dismiss.

Judgment affirmed.

Dillard and McMillian, JJ., concur.


author: McFadden, Judge.

text:
    A13A0689.
    In the Interest of R. G. et al., children.
    (745 SE2d 752)
   McFadden, Judge.

The mother of minor children R. G., K. B. and H. S. appeals from a juvenile court order granting the Department of Family and Children Services’ petition to cease efforts to reunify her with the children. The mother challenges the sufficiency of the evidence supporting the order. Because there is clear and convincing evidence supporting the juvenile court’s nonreunification order, we affirm.

On . . . appeal from an order approving plans for nonreunification, we construe the evidence in favor of the judgment and determine whether a rational trier of fact could have found clear and convincing evidence that reunification services should not be provided. We neither weigh the evidence nor determine the credibility of witnesses; we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met.

In the Interest of J. T., 322 Ga. App. 4 (743 SE2d 571) (2013) (citations and punctuation omitted).

So construed, the evidence shows that on August 3, 2011, the juvenile court entered a shelter care order for then four-year-old R. G., ten-year-old K. B. and thirteen-year-old H. S., because the mother had tested positive for cocaine and marijuana, the family home had no running water and the mother’s live-in boyfriend had allegedly touched one of the children inappropriately. On September 28, 2011, after an adjudicatory hearing, the juvenile court entered an order finding that the fathers of the children were not present at the hearing, that the mother was present and had stipulated that the children were deprived because she had no stable housing or steady income, that the mother was not employed, and that she relied on her boyfriend to support her drug habit and provide her a home. The juvenile court concluded that the children were deprived and that the causes of deprivation as to the mother were substance abuse, inadequate housing, failure to provide support due to unstable employment, and failure to protect the children from sexual abuse. Temporary custody of the children was awarded to the department, and they were eventually placed with the paternal aunt of one of the children.

On October 17, 2011, the mother agreed to and signed the department’s case plan to reunify her with the children, which was later approved by the juvenile court. The reunification plan provided, among other things, that the mother obtain a source of income, that she secure stable housing, that she complete a drug and alcohol assessment, that she test negative for drugs for at least six consecutive months, and that she ensure that her children have no contact with her boyfriend. Thereafter, the mother continued to live with her drug-supplier boyfriend, continued to use illegal drugs and failed to obtain a source of income. During one of the mother’s visits with the children at the department office, the boyfriend showed up, and once the caseworker realized who he was “the kids were removed from him at that time.” The mother also had the children sign a Father’s Day card for the boyfriend and asked them to send him a text message telling him that she needed money for cigarettes.

Although the case plan required her to attend a substance abuse group and actively seek in-patient treatment, the mother stopped going to the group, made excuses about entering treatment and did not do so until April 2012. Upon entering the in-patient program, the mother tested positive for cocaine and marijuana. However, her subsequent tests during the in-patient treatment were negative for drugs. A counselor for the program testified that the mother was on track for successful completion of the program within 12 to 14 months. Although the mother could be employed while in the program, she had not yet gotten a job.

The children’s maternal grandmother testified that the mother has a long history with drugs, and that she did not believe the mother would ever “get her life together, quit using drugs and get a job.” According to the grandmother, while living with the paternal aunt, the children are happy, safe, well taken care of and loved.

Reunification services are not required when reasonable efforts to reunify a child with his family would be detrimental to the child. There is a presumption that reunification services should not be provided if the juvenile court finds by clear and convincing evidence that the parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family. . . .

In the Interest of J. J., 287 Ga. App. 746, 748 (1) (652 SE2d 639) (2007) (citation omitted).

In this case, the juvenile court found that the mother had failed to comply with the previously ordered plan to reunite the family. This finding was supported by ample evidence, as recounted above, showing that she had continued to live with her drug-supplier boyfriend and use illegal drugs, had not obtained a source of income, and had not ensured that her children have no contact with the boyfriend. Given the mother’s failure to comply with the previously ordered reunification plan, there is a presumption that reunification services are inappropriate. “Although this presumption is rebuttable, it has not been rebutted in the instant case.” In the Interest of J. P. V., 261 Ga. App. 194, 196 (2) (582 SE2d 170) (2003) (citation omitted). It is true that the drug rehabilitation counselor testified that the mother is on track to successfully complete the in-patient program. However, as the trial court noted, the “admission to drug rehab is the only goal of the [reunification plan] that the mother has worked on.” That does not change the fact that the mother has not substantially complied with other requirements of the reunification plan, and is not tantamount to rebuttal of the presumption that reunification is inappropriate. Compare In the Interest of M. H., 251 Ga. App. 528, 530 (554 SE2d 616) (2001) (presumption rebutted by department’s own psychologist who testified that mother had substantially complied with plan and opined that reunification was still possible). Accordingly, “[b]ased on all of the evidence presented, the juvenile court properly found that reasonable efforts to reunite the mother and [children] would be detrimental to the [children] and, therefore, reunification services were not appropriate.” In the Interest of J. P., 280 Ga. App. 100, 104 (1) (633 SE2d 442) (2006) (mother failed to comply with court-ordered reunification plan).

Decided June 28, 2013.

Patrick B. Calcutt, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, James W. Hurt, for appellee.

Judgment affirmed.

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


text:
    A13A0744.
    GRAHAM et al. v. FALLICK et al.
    (745 SE2d 747)
   McFadden, Judge.

Derrick and Marsha Graham brought an action against Ira Fallick and Adair Construction, Inc. (for which Fallick was working as a subcontractor) for damages arising from a collision at an intersection controlled by a four-way stop sign. Some of the trial evidence showed that the two vehicles had approached the intersection at approximately the same time. The trial court charged the jury that the rule of the road requiring the driver on the left to yield to the driver on the right when two vehicles reach an intersection at the same time does not apply to intersections controlled by four-way stop signs. We agree with the Grahams that this charge was an incorrect statement of the law and that the trial court erred in giving the charge and in denying certain of the Grahams’ requested charges. We further find that these errors require reversal.

The trial evidence conflicted on how the accident occurred. Derrick Graham testified that he brought his vehicle to a full stop at an intersection with a four-way stop sign. He saw a truck, driven by Fallick, approaching the stop sign on the cross road. Believing it was safe to proceed, Graham began to make a left turn, but the truck did not stop and collided with his vehicle.

Fallick testified that he approached the intersection and stopped at the stop sign. A “second to two” later, the vehicle driven by Graham arrived at the intersection, “coming to a slower stop” but not stopping completely. Both vehicles then entered the intersection at the same time and collided.

A law enforcement officer who responded to the accident testified that Derrick Graham told him he had arrived at the intersection first and stopped, then entered the intersection when he saw Fallick’s truck slowing down as it approached the intersection. The officer testified that Fallick told him that both vehicles stopped at the intersection at the same time, that both drivers thought they could go first, and that they both pulled into the intersection at the same time and collided. The officer testified that he found Fallick at fault and issued him a citation for failure to yield the right of way at an intersection, explaining that, “by state law when you both stop at the same time, you have to yield to the vehicle to your right.”

At the charge conference, the trial court informed the parties that he “totally disagree [d] with the officer that the yield of right-of-way applies at stop signs” but instead thought it “applies where there is no stop sign.” The trial court stated that he would not charge the jury that the vehicle on the right had the right of way, and at the trial court’s direction Fallick’s counsel submitted an alternative charge. Over the Grahams’ objection, the trial court charged the jury:

Now, you’ve heard testimony concerning which driver has the right-of-way at an intersection. There is a rule of the road which provides that when two vehicles reach an intersection at the same time, the driver on the left must yield to the vehicle on the right.
I charge you that this rule of the road that I just referenced only applies to intersections which are not controlled by a traffic-control device such as a stop sign. This rule does not apply to an intersections — to intersections which have a four-way stop.

The jury returned a verdict in favor of the defendants.

We agree with the Grahams that the charge given by the trial court was an incorrect statement of the law. OCGA § 40-6-70 (a) pertinently provides: “When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right [.]” This language does not limit the applicability of this right-of-way rule to uncontrolled intersections. Rather, the rule applies to intersections generally, with certain exceptions specifiedinOCGA § 40-6-70. Some of those exceptions, set forth in OCGA § 40-6-70 (a), concern the right-of-way at certain types of intersections not at issue here (i.e., an uncontrolled intersection where one highway terminates into another, an intersection with an inoperative traffic light, and an intersection with a flashing signal or a “pedestrian hybrid beacon”). The remaining exception, set forth in OCGA § 40-6-70 (b), provides that the “right of way rule declared in subsection (a) of this Code section is modified at through highways and otherwise as stated in this chapter.”

Fallick and Adair Construction argue that OCGA § 40-6-70 (a) is modified by OCGA § 40-6-72 to preclude its application to intersections controlled by four-way stop signs. We disagree. OCGA § 40-6-72 (b) provides that, after stopping at a stop sign, a driver “shall yield the right of way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.” It does not address the circumstance of two vehicles arriving and stopping at an intersection at approximately the same time. In that circumstance, neither vehicle is “in the intersection” nor “approaching” the intersection, the situations addressed in OCGA § 40-6-72 (b). Instead, both vehicles are stopped and waiting to enter the intersection. The right-of-way rule declared in OCGA § 40-6-72 (b) offers no guidance to the drivers as to how or whether a driver could gain the right-of-way in this circumstance. So OCGA § 40-6-72 (b) does not modify the general right-of-way rule declared in OCGA § 40-6-70 (a), which does provide guidance to drivers in this circumstance. The two Code sections can be harmonized. See Humphreys v. Kipfmiller, 237 Ga. App. 572, 575 (2) (515 SE2d 878) (1999) (rejecting interpretation of OCGA § 40-6-72 that would “lead to the absurd result that a driver legitimately stopped at a stop sign could never, under any circumstance, momentarily gain the right of way to cross the intersection”) (citation omitted); see also Ramos-Silva v. State Farm Mut. Ins. Co., 300 Ga. App. 699, 701 (686 SE2d 345) (2009) (all statutes relating to the same subject matter should be construed together and harmonized wherever possible).

Accordingly, under the plain language of OCGA § 40-6-70, the general right-of-way rule declared in that Code section applies to drivers who arrive simultaneously at an intersection controlled by four-way stop signs. See generally City of Atlanta v. City of College Park, 292 Ga. 741, 744 (741 SE2d 147) (2013) (fundamental rules of statutory construction require us to construe statutes according to their terms and give words their plain and ordinary meaning). This construction also is consistent with the interpretation given OCGA § 40-6-70 by the Department of Driver Services in its “Driver’s Manual” (a certified copy of which was entered into evidence in this case), which instructs Georgia drivers: “At a four-way intersection where all drivers are faced with stop signs, . . . [i]f two vehicles reach the intersection at approximately the same time, yield to any vehicles on your right.” See generally David E. Shipley, The Chevron Two-Step in Georgia’s Administrative Law, 46 Ga. L. Rev. 871, 923-935 (2012) (discussing Georgia courts’ deference to agency interpretations of statutes).

Because the general right-of-way rule set forth in OCGA § 40-6-70 applies when two drivers arrive simultaneously at an intersection controlled by four-way stop signs, the trial court erred in charging the jury that this rule did not apply in such circumstance. See Action Sound v. Dept. of Transp., 265 Ga. App. 616, 621-622 (2) (594 SE2d 773) (2004) (holding that instruction that misstated the law was reversible error). Furthermore, because there was some trial evidence that the two vehicles in this case arrived at the intersection at approximately the same time, and the jury instructions did not otherwise cover the Grahams’ requested charges on OCGA § 40-6-70 and negligence per se based upon a violation of OCGA § 40-6-70, the trial court erred in refusing to give those requested charges. See Taylor v. State, 272 Ga. 744, 745 (1) (534 SE2d 67) (2000) (“It is error to refuse to give a charge ... where the request is a correct statement of law that is pertinent and material to an issue in the case and not substantially covered by the charge actually given.”) (citation and punctuation omitted); Edmond v. Roberson, 207 Ga. App. 101, 102-103 (2) (427 SE2d 74) (1993) (trial court erred in refusing to charge jury on negligence per se where evidence presented at trial showed defendant violated OCGA § 40-6-70).

We find no merit in Fallick’s argument that any error was harmless. “[W]hen an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless.” Schriever v. Maddox, 259 Ga. App. 558, 560 (1) (578 SE2d 210) (2003) (citation and punctuation omitted). Although the parties presented conflicting evidence about the circumstances leading to the collision, it is arguable that, under OCGA § 40-6-70, Graham had the right-of-way even under Fallick’s depiction of those circumstances. Given that the question of which driver had the right-of-way was central to the determination of negligence in this case, we cannot say that the trial court’s erroneous instruction to the jury regarding right-of-way was harmless.

Decided June 28, 2013.

McGahren, Gaskill & York, Matthew F. McGahren, Eric J. Marlett, for appellants.

Downey & Cleveland, George L. Welborn, for appellees.

Judgment reversed.

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


author: Miller, Judge.

text:
    A13A0019.
    CEASAR et al. v. WELLS FARGO BANK, N.A.
    (744 SE2d 369)
   Miller, Judge.

Arvil and Christine Ceasar sued, following the foreclosure of their residence by Wells Fargo Bank, N.A., raising claims of wrongful foreclosure, negligence, breach of the covenant of good faith and fair dealing and unjust enrichment. Wells Fargo moved to dismiss the complaint for failure to state a claim, and the trial court granted Wells Fargo’s motion. The Ceasars appeal, contending that the trial court erred in (1) finding that a scrivener’s affidavit was sufficient to correct the typographical error in the legal description contained in the original security deed; and (2) dismissing their complaint for failure to state a claim. We discern no error and affirm.

Under OCGA § 9-11-12 (b) (6), a motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation and punctuation omitted.) Anderson v. Daniel, 314 Ga. App. 394, 395 (724 SE2d 401) (2012).

So viewed, the complaint alleged that on March 20, 2003, the Ceasars obtained a loan from CTX Mortgage Company, LLC in the amount of $176,001 on their residence located at 1155 Chris Lake Drive in Lawrenceville, Georgia. The loan was evidenced by a promissory note and security deed (“Security Deed”) naming CTX as the lender and Mortgage Electronic Registration Systems, Inc. (“MERS”) as CTX’s nominee. The Security Deed expressly provided that the property (“Property”) described therein was conveyed with the power of sale, however, the legal description of the Property, which was attached as Exhibit Ato the Security Deed, inadvertently referenced Lot 50, as opposed to the correct Lot number 58. The Ceasars’ loan was subsequently transferred to Wells Fargo, and a scrivener’s affidavit was recorded to correct the legal description contained in the Security Deed.

The Ceasars fell behind on their mortgage payments and filed a petition for Chapter 13 bankruptcy. Wells Fargo submitted a claim in the bankruptcy proceedings based on the $176,001 loan, and was granted relief from the automatic bankruptcy stay so that it could initiate foreclosure proceedings.

In September 2009, Wells Fargo agreed to suspend foreclosure proceedings based on the Ceasars’ promise to make payments under a Special Forbearance Agreement; however, the letter which Wells Fargo sent to the Ceasars regarding the agreement did not include a payment schedule or signature page. Wells Fargo subsequently notified the Ceasars that their mortgage was about to be foreclosed, and denied their application for a loan modification.

The Ceasars then contacted a non-profit assistance corporation, who filed a second loan modification application on the Ceasars’ behalf. In January 2010, Wells Fargo again offered the Ceasars a Special Forbearance Agreement that required them to make eight monthly payments in the amount of $1,283.22, as well as a ninth payment in the amount of $25,450.35. Neither of the proposed forbearance agreements were executed, and the Ceasars did not allege that they made any payments in accordance with the proposed agreements.

In April 2010, Wells Fargo notified the Ceasars that their request for a loan modification had been declined. A few days later, Wells Fargo sent the Ceasars a letter requesting additional financial information in order to determine how best to help the Ceasars keep their home. Over the next three months, the Ceasars continued to pursue mortgage assistance via telephone and sent all requested information.

In August 2010, the HOPE NOW Alliance, which is a partnership between mortgage companies and non-profit housing counselors, notified the Ceasars of the relief options with Wells Fargo that might be available. HOPE NOW unsuccessfully worked with Wells Fargo on the Ceasars’ behalf from August 2010 through November 2010.

In early 2011, the Ceasars submitted a third application for a loan modification, which Wells Fargo denied. Thereafter, Wells Fargo notified the Ceasars in writing that their request for workout options had also been denied and no other actions would proceed because their loan was “still active in a bankruptcy.” Wells Fargo subsequently conducted a foreclosure sale on the Ceasars’ property and obtained a writ of possession against the Ceasars.

1. The Ceasars contend that the trial court erred in finding that the scrivener’s affidavit was sufficient to correct the typographical error in the legal description of the Property, which was attached as an exhibit to the Security Deed. We disagree.

Perfection in legal descriptions of tracts of land is not required. If the premises are so referred to as to indicate the grantor’s intention to convey a particular tract of land, extrinsic evidence is admissible to show the precise location and boundaries of such tract. The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of land therein referred to, so that its identification is practicable.

(Citations and punctuation omitted.) Lawyers Title Ins. Corp. v. Nash, 196 Ga. App. 543, 544 (1) (396 SE2d 284) (1990). Moreover, a typographical error in a security deed does not necessarily invalidate the legal description. See Grant v. Fourth Nat. Bank of Columbus, 229 Ga. 855, 862 (2) (194 SE2d 913) (1972) (upholding property description in security deed where typographical error inaccurately recited “northwesterly’ direction, rather than “northeasterly’ direction).

Here, the legal description attached to the Security Deed inadvertently referenced lot 50, as opposed to the correct lot number 58. This single typographical error did not invalidate the property description, however, because the Security Deed also specifically referred to the property by its physical address — 1155 Chris Lake Drive, Lawrenceville, Georgia, the correct land lot and district and the recorded plat of the subdivision in which the property is located. See Grant, supra, 229 Ga. at 860-861 (1); Nash, supra, 196 Ga. App. at 544 (1). Accordingly, the Security Deed sufficiently described the Property, and reformation of the deed was not required.

2. The Ceasars contend that the trial court erred in dismissing their complaint for failure to state a claim. We do not agree.

(a) Wrongful foreclosure

“When a power of sale [in a security deed] is exercised all that is required of the foreclosing party is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith.” (Citation and punctuation omitted.) Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 330 (1) (270 SE2d 867) (1980); see also Griffin Builders v. Synovus Bank, 320 Ga. App. 307, 309 (1) (739 SE2d 760) (2013). Aforeclosure sale may only be set aside in equity when “the price realized is grossly inadequate and the sale is accompanied by either fraud, mistake, misapprehension, surprise or other circumstances which might authorize a finding that such circumstances contributed to bringing about the inadequacy of price.” (Citation and punctuation omitted.) Kennedy, supra, 155 Ga. App. at 330 (1).

Here, the Ceasars failed to state a claim for wrongful foreclosure. Notably, the Ceasars did not allege that the power of sale provision in the Security Deed was ambiguous, that the Property was not advertised and sold according to the terms of the Security Deed, or that the price realized at the foreclosure sale was grossly inadequate. The Ceasars also failed to state a claim for wrongful foreclosure based on the proposed special forbearance agreements, because those agreements specifically provided that the provisions of the Security Deed remained in full force and effect, and that the agreements did not constitute a waiver of Wells Fargo’s right to strict performance. Compare Atlanta Dwellings v. Wright, 272 Ga. 231, 234 (527 SE2d 854) (2000) (holding that questions remained regarding whether forbearance agreement and lender’s course of conduct constituted waiver of strict performance of security deed). Moreover, contrary to the Ceasars’ contention, payment or tender of the principal and interest due on their loan was a prerequisite to their claim to set aside the foreclosure sale. See Hill v. Filsoof, 274 Ga. App. 474, 475 (1) (618 SE2d 12) (2005). Since the Ceasars admittedly fell behind on their mortgage payments, and they did not tender the balance due on their loan, the trial court did not err in dismissing their wrongful foreclosure claim.

(b) Negligence

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 .... A legal duty sufficient to support liability in negligence is either a duty imposed by a valid statutory enactment of the legislature or a duty imposed by a recognized common law principle declared in the reported decisions of our appellate courts.

(Citations and punctuation omitted.) Boller v. Robert W. Woodruff Arts Center, Inc., 311 Ga. App. 693, 695-696 (1) (716 SE2d 713) (2011). Here, the Ceasars failed to allege any cognizable statutory or common law legal duty that Wells Fargo allegedly breached. Notably, Wells Fargo had no duty to modify the Ceasars’ loan or Security Deed. Moreover, Wells Fargo owed no duty of care to the Ceasars under the federal Home Affordable Modification Program (“HAMP”). See U.S. Bank, N.A. v. Phillips, 318 Ga. App. 819, 826 (3) (734 SE2d 799) (2012) (holding that homeowners have no private cause of action for negligence under HAMP). Accordingly, the trial court did not err in dismissing the Ceasars’ negligence claims.

(c) Breach of the implied covenant of good faith and fair dealing

“Every contract implies a covenant of good faith and fair dealing in the contract’s performance and enforcement.” Secured Realty Investment v. Bank of North Georgia, 314 Ga. App. 628, 630 (1) (b) (725 SE2d 336) (2012). “The implied covenant modifies and becomes part of the provisions of the contract, but the covenant cannot be breached apart from the contract provisions it modifies and therefore cannot provide an independent basis for liability.” Myung Sung Presbyterian Church v. North American Assn. of Slavic Churches & Ministries, 291 Ga. App. 808, 810 (2) (662 SE2d 745) (2008). Because the Ceasars did not assert a breach of contract claim, their claim for breach of the implied covenant of good faith and fair dealing failed as a matter of law. See Phillips, supra, 318 Ga. App. at 825 (2) (debtor could not maintain claim for breach of implied covenant of good faith and fair dealing absent valid breach of contract claim).

Decided June 12, 2013

Reconsideration denied July l, 2013

Natalie R. Rowland, for appellants.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Joseph R. Butter III, Dylan W. Howard, Joshua N. Tropper, for appellee.

(d) Unjust enrichment

Unjust enrichment is an equitable principle that may apply when there is no legal contract between the parties. See Georgia Dept. of Community Health v. Data Inquiry, LLC, 313 Ga. App. 683, 687 (2) (722 SE2d 403) (2012); Georgia Tile Distrib. v. Zumpano Enterprises, 205 Ga. App. 487, 488 (1) (422 SE2d 906) (1992). Here, the Ceasars’ claims arise from a written contract — the Security Deed — which they attached to their complaint and incorporated therein. The existence of this written contract precludes the Ceasars’ unjust enrichment claim. See Bogard v. Inter-State Assurance Co., 263 Ga. App. 767, 770 (589 SE2d 317) (2003).

In sum, reformation of the Security Deed was not necessary to correct the typographical error in the Property’s legal description, and the Ceasars failed to state a claim against Wells Fargo upon which relied could be granted. Accordingly, the trial court properly dismissed the Ceasars’ complaint.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       We note that in cases where reformation is required, a deed may be reformed even after foreclosure to correct typographical errors. See Aames Funding Corp. v. Henderson, 275 Ga. App. 323, 326 (620 SE2d 503) (2005).


author: Ray, Judge.

text:
    A13A0056.
    HODGE et al. v. URFA-SEXTON, LP et al.
    (746 SE2d 142)
   Ray, Judge.

Appellants challenge the trial court’s denial of their motion to disqualify appellees’ counsel, Insley & Race, LLC. On appeal, appellants argue that the screening measures implemented by Insley & Race were not allowed under Georgia law, or in the alternative, that the screening measures implemented were inadequate to protect against a conflict of interest that arose when it was discovered that a paralegal working for its counsel’s firm had been formerly employed with appellants’ counsel’s firm. Finding no error, we affirm.

This action stems from the shooting death of Monica Renee Williams on January 3, 2010, at an apartment complex owned and operated by appellees. Appellants are Belinda Hodge, who is the administratrix of Williams’ estate, and Williams’ son, Tavarius NyQuan Williams. Shortly after Williams’ death, appellants retained the law firm of Hanks Brookes, LLC, to pursue claims associated with Williams’ death.

Kristi Bussey was employed as a paralegal by Hanks Brookes at the time of Williams’ death and at the time the law firm was retained by Hodge. While working at Hanks Brookes, Bussey assisted in the investigation of Williams’ death, communicated with appellants regarding the case, and participated in meetings regarding the case, including those discussing the investigation, counsel’s thoughts regarding the case, and proposed strategy. Bussey even assisted Hodge in becoming appointed administratrix of Williams’ estate and guardian of Williams’ son. Additionally, Bussey has personally known Hodge for approximately ten years and was friends with Williams and her son.

In March 2010, the law firm of Insley & Race, LLC, was retained by the Scottsdale Insurance Company to represent appellee URFASexton, LP, in connection with the instant suit. Insley & Race then proceeded to conduct a pre-suit investigation and evaluation of the incident. On March 15, 2011, approximately one year after Insley & Race was retained and six months after the conclusion of the pre-suit investigation, Bussey interviewed for a paralegal position at Insley & Race. Prior to hiring Bussey, the hiring partner at Insley & Race called and obtained an employment reference for Bussey from a partner at Hanks Brookes, who did not disclose any possible conflict of interest. At the time Bussey was hired and came to work at Insley & Race, she was not aware that the firm had been involved in a pre-suit investigation of the Williams matter. Accordingly, no screening measures were implemented to shield her from disclosing any knowledge she possessed regarding the case at that time.

On October 5, 2011, Bussey became aware of the conflict of interest and brought it to the attention of the partners at Insley & Race. Insley & Race then implemented screening measures, including restricting her access to the law firm’s electronic file and the physical file and instructing her not to have any discussions regarding the case with anyone at the Arm. Bussey provided affidavit testimony that she had never disclosed nor discussed any confidential information obtained about the Williams case during her employment with Hanks Brookes to any person at Insley & Race.

Appellants filed their complaint in this case on November 7, 2011. On December 6, 2011, two months after becoming aware of the conflict in interest, defense counsel disclosed Bussey’s employment at their firm to Hanks Brookes. On January 20, 2012, appellants filed a motion to disqualify defense counsel, arguing that Bussey’s employment with defense counsel was a conflict of interest that required disqualification of the entire firm. On June 21, 2012, the trial court denied appellants’ motion to disqualify defense counsel, finding that defense counsel had “implemented appropriate and effective screening measures to protect against any disclosure of confidential information.” Appellants obtained a certificate of immediate review of that order and filed an application for interlocutory review in this Court, which was granted.

1. In their first enumeration of error, appellants assert that the Georgia Rules of Professional Conduct do not allow screening to overcome a clear conflict of interest, and thus, the trial court erred in denying their motion to disqualify defense counsel. We disagree.

On appeal, we review a trial court’s ruling on a motion to disqualify counsel under an abuse of discretion standard. Cardinal Robotics, Inc. v. Moody, 287 Ga. 18, 22 (694 SE2d 346) (2010).

This Court has not previously addressed the standards governing a disqualification motion based on the hiring of a nonlawyer employee. With respect to lawyers, our Supreme Court has adopted a standard stating that a conflict of interest arises whenever counsel undertakes representation of an interest that is adverse to that of a former client, as long as the matters embraced in the pending suit are “substantially related” to the factual matters involved in the previous suit. See Crawford W. Long Mem. Hosp. of Emory Univ. v. Yerby, 258 Ga. 720, 721 (1) (373 SE2d 749) (1988). See also Rules 1.9 and 1.10 of the Georgia Rules of Professional Conduct. This strict rule is based on conclusive presumption that confidences and secrets were imparted to the attorney during the prior representation and that such representation would “create [ ] an impermissible appearance of impropriety.” See Yerby at 722 (3).

Appellants argue that the standards applied to disqualify lawyers should also apply to paralegals. Thus, appellants urge that the entire firm of Insley & Race shouldbe automatically disqualified from the present case because of the confidences Bussey obtained while working at Hanks Brookes.

We agree that a paralegal who has actually worked on a case must be subject to the conclusive presumption that confidences and secrets were imparted during the course of the paralegal’s work on the case. See Phoenix Founders, Inc. v. Marshall, 887 SW2d 831, 834 (Tex. 1994). “This presumption serves to prevent the moving party from being forced to reveal the very confidences sought to be protected.” (Citation omitted.) Id. We disagree, however, with appellants’ argument that paralegals should be subject to the same standards applicable to lawyers under the Georgia Rules of Professional Conduct, and therefore, they should conclusively be presumed to share confidential Information with members of their firms. See Georgia Rule of Professional Conduct 1.10. Rule 5.3 (a) of the Georgia Rules of Professional Conduct, governing responsibilities regarding non-lawyer assistants, requires a lawyer having direct supervisory authority over a nonlawyer to make reasonable efforts to ensure that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer. “Thus, to the extent that the [Georgia Rules of Professional Conduct] prohibit a lawyer from revealing confidential information . . . they also prohibit a supervising lawyer from ordering, encouraging, or permitting a nonlawyer to reveal such information.” Phoenix Founders, Inc., supra.

Citing to the Alabama Rules of Professional Conduct and an advisory opinion, Alabama State Bar, Formal Opinion 2002-01, the appellants urge us to adopt the approach endorsed by some jurisdictions, which prohibits using screening measures to prevent a non-lawyer’s conflict of interest from disqualifying an entire firm. Appellants argue that Georgia has implicitly disapproved the use of screening measures because the Georgia Rules of Professional Conduct did not specifically adopt the screening measures set forth in American Bar Association Model Rules 1.10. However, we find this unpersuasive.

The American Bar Association’s Committee on Professional Ethics has considered whether a law firm that hires a paralegal may continue representing clients whose interests conflict with interests of the former employer’s clients on whose matters the paralegal has worked. ABA Comm, on Ethics and Professional Responsibility, Informal Op. 88-1526 (1988). After surveying case law and ethics opinions from a number of jurisdictions, the Committee concluded that the new firm need not be disqualified, as long as the firm and the paralegal strictly adhere to the screening process set forth in its opinion, and as long as the paralegal does not reveal any information relating to the former employer’s clients to any person in the employing firm. Id. Anumber of courts have since relied on the ABA’s opinion to allow continued representation under similar conditions. See Smart Indus. Corp. v. Superior Court, 179Ariz. 141, 148 (C) (876 P2d 1176) (1994); In re Complex Asbestos Litigations v. Owens-Corning Fiberglass Corp., 232 Cal. App.3d 572, 595-596 (283 Cal. Rptr. 732) (1991).

These decisions highlight a concern “regarding the mobility of paralegals and other nonlawyers. A potential employer might well be reluctant to hire a particular nonlawyer if doing so would automatically disqualify the entire firm from ongoing litigation.” Phoenix Founders, Inc., supra at 835. Weighing these concerns, the ABA concluded that screening a conflicted nonlawyer from the case was adequate, and that “any restrictions on the nonlawyer’s employment should be held to the minimum necessary to protect confidentiality of client information.” ABA Informal Op. 88-1526 at 2. Further, we note that Georgia has long held that

[t]he right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution. Disqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and inevitably causes delay. A client whose attorney is disqualified may suffer the loss of time and money in finding new counsel and may lose the benefit of its longtime counsel’s specialized knowledge of its [case]. Because of the right involved and the hardships brought about, disqualification of chosen counsel should be seen as an extraordinary remedy and should be granted sparingly.

(Citations and punctuation omitted.) Bernocchi v. Forcucci, 279 Ga. 460, 462 (2) (614 SE2d 775) (2005). Accord Harris v. The Southern Christian Leadership Conference, Inc., 313 Ga. App. 363, 369 (7) (721 SE2d 906) (2011). These concerns, however, must be balanced against the concerns articulated by appellant, i.e., “the need to maintain ethical standards of professional responsibility” and the concern for “the preservation of public trust in the administration of justice and the integrity of the bar.” (Citation omitted.) Smart Indus. Corp., supra at 149 (C).

Using this balanced approach, this Court shares the concerns regarding the mobility of nonlawyer employees and the protection of a client’s right to his choice of counsel expressed by the ABA and by the appellees. We agree that client confidences may be appropriately safeguarded if a firm hiring a paralegal from another firm takes appropriate steps to screen that paralegal in compliance with the screening measures adopted by the Georgia Rules of Professional Conduct in other contexts, namely in Rule 1.11, governing successive government and private employment, and Rule 1.12, governing former judges or arbitrators. Those screening guidelines, set forth in Rule 1.0 (p), and Comments 8-10 to Rule 1.0, state that the disqualified person should not

communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified [employee] with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened [employee] to avoid any communication with other firm personnel and any contact with any firm files or other material relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened [employee] relating to the matter, denial of access by the screened [employee] to firm files or other materials relating to the matter and periodic reminders of the screen to the screened [employee] and all other firm personnel. In order to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening.

These precautions would tend to reduce any danger that the nonlawyer might share confidential information with members of the law firm. Therefore, the challenged firm may rebut any presumption that a nonlawyer shared confidential information by showing that sufficient precautions have been taken to guard against any disclosure of confidences. See Smart Indus. Corp., supra at 149-150.

However, we adopt the American Bar Association’s precaution that these screening practices cannot be used to avoid disqualification in the following circumstances: (1) when information relating to the representation of an adverse client has in fact been disclosed, or (2) when screening would be ineffective or the nonlawyer necessarily would be required to work on the other side of a matter that is the same or substantially related to the matter on which the nonlawyer has worked. See ABA Op. 88-1526. Ordinarily, however, disqualification is not required so long as “the practical effect of formal screening has been achieved.” In re Complex Asbestos Litigation, supra at 596.

2. Appellants argue that if Georgia allows screening measures to be implemented to avoid imputed disqualification arising from the change in employment by a nonlawyer employee, that the trial court erred in denying their motion to disqualify because Insley & Race did not institute screening measures in a timely manner. We disagree.

Bussey provided affidavit testimony that she began working at Insley & Race in March 2011, but that at the time of her hiring she was not aware that the firm was involved in a pre-suit investigation of the Williams matter. Thus, no screening measures were implemented to shield her from knowledge of the case at the time of her hiring. On October 5, 2011, Bussey discovered the conflict of interest and brought it to the attention of the partners at Insley & Race, who implemented screening measures at that time. Those screening measures included restricting her access to the law firm’s electronic file and the physical file, and instructing her not to have any discussions regarding the case with anyone at the firm. Bussey provided affidavit testimony that she had never disclosed nor discussed any confidential information obtained about the Williams case during her employment with Hanks Brookes to any person at Insley & Race.

Based on this evidence, the trial court concluded that the screening measures implemented by Insley & Race were adequate and that Bussey had not divulged any confidential information to the firm prior to the implementation of the screening measures. As stated above, we review a trial court’s ruling on a motion to disqualify under an abuse of discretion standard. Cardinal Robotics, Inc., supra. “The question on review is whether there is any evidence to support the trial court’s finding of facts.” Southern Shipping Co. v. Oceans Intl. Corp., 174 Ga. App. 91, 94 (2) (329 SE2d 263) (1985). Having reviewed the record, we find that the trial court’s findings are not clearly erroneous. See Daines v. Alcatel, S.A. Inc., 194 F.R.D. 678, 682-683 (II) (B) (E.D. Wash. 2000) (disqualification not required if firm provides “convincing evidence” that no confidential information passed before the institution of the screen and the subsequently erected screen is adequate).

Decided July 1, 2013

Dixon Mills, Michael A. Mills, for appellants.

Insley & Race, Brynda R. Insley, James P. Myers, for appellees.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       Georgia Rule of Professional Conduct 1.9 (a) provides that a lawyer who has “formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client. . . .” Rule 1.10 (a) imputes that lawyer’s disqualification to the entire firm, stating that “[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule[ ] . . . 1.9.”

       In its advisory opinion, the Alabama State Bar relied heavily on the fact that the Supreme Court of Alabama had taken the position that the “Chinese wall” or screening concept should not apply to practicing lawyers. See Roberts v. Hutchins, 572 S2d 1231 (Ala. 1990).

       See also Restatement (Third) of Law Governing Lawyers, § 123, Comment (f) (“[e] ven if the [nonlawyer employee] learned the [confidential] information in circumstances that would disqualify a lawyer . . . the person should not be regarded as a lawyer for purposes of the imputation rules of this Section”). For more information regarding jurisdictions adopting this approach, see Peter H. Geraghty and Susan J. Michmerhuizen, Screen Nonlawyer Employees For Conflicts of Interest, American Bar Association, Your ABA, June 2012 e-newsletter; Cecile C. Edwards, Law Firm Disqualification and NonLawyer Employees: A Proposal For A Consistent Analysis, 26 Miss. C. L. Rev. 163, 167-176 (III)-(IV) (2007); M. Peter Moser, Chinese Walls: A Means of Avoiding Law Firm Disqualification When a Personally Disqualified Lawyer Joins the Firm, 3 Geo. J. Legal Ethics 399, 406-407 (1990).

       A rigid rule requiring that the hiring firm is automatically disqualified
      raises important questions, not the least of which is the anomalous proposition that the more skilled a legal assistant or other employee becomes to the employer and the more information he or she acquires on cases in the firm, such assistant becomes less valuable to other firms with significant caseloads with the current employer. ... A literal reading of this rigid rule would stymie a legal assistant’s career, or at the very least make them “Typhoid Marys,” unemployable by firms practicing in specialized areas of the law where the employees are most skilled and experienced.
      (Citation and punctuation omitted.) Smart Indus. Corp., supra at 148-149 (C).