text:
    A15A0205.
    PINKNEY v. THE STATE.
    (774 SE2d 770)
   Miller, Judge.

A jury convicted Jamaal Pinkney of two counts of attempted armed robbery (OCGA § 16-4-1), two counts of false imprisonment (OCGA § 16-5-41 (a)), and one count each of burglary (OCGA § 16-7-1 (b)), interfering with an emergency telephone call (OCGA § 16-10-24.3), and attempted burglary (OCGA § 16-4-1). Pinkney appeals from the denial of his motion for new trial, contending that the trial court erred in (1) denying his motion for a mistrial after defense counsel misstated certain evidence during his opening statement, and (2) admitting into evidence Pinkney’s cell phone number and the records of his cell phone calls and text messages. For the reasons that follow, we affirm.

Viewed in the light most favorable to Pinkney’s conviction, the record shows that on the evening of December 31, 2011, an elderly woman and her live-in caregiver were watching television at the woman’s home in Lithia Springs. Pinkney had occasionally performed odd jobs for the elderly woman and, earlier that month, Pinkney had stopped by the woman’s house.

Just after 11:00 p.m. on December 31, the woman and her caregiver heard what sounded like an explosion, and Pinkney, armed with a square, silver gun, burst through the kitchen door, breaking the door and the doorframe. Pinkney was dressed all in black, with a hooded shirt pulled down over his face and a turtleneck pulled up to his mouth, so that only his eyes were uncovered. Although the women could not see Pinkney’s face, the elderly woman asked Pinkney if she knew him from somewhere and recognized Pinkney by his voice and the way he moved. Once the elderly woman discovered that Pinkney was the intruder, she recognized his facial features as well.

After coming into the living room, Pinkney told the elderly woman and her caregiver to sit down, cursed at them, and pointed his gun at them. Pinkney forced the caregiver to sit down on the sofa by pointing his gun directly in her face. Pinkney asked the women where they kept their money and credit cards and dumped out the contents of the women’s purses and bags onto the floor. The caregiver tried to dial 911 on her cell phone, but Pinkney took her phone and threw it across the room. At one point, Pinkney told the caregiver to pull up her nightgown and threatened to rape her.

The elderly woman then started holding her chest and saying that she could not breathe. She became pale and sweaty and started shaking, and the caregiver could not feel the woman’s pulse. Pinkney then made a phone call, said that the victims did not have anything, and asked to be picked up. Pinkney kicked at the contents of the bags that he had dumped on the floor, unlocked the front door, and walked out of the house. Ultimately, nothing was taken from the house.

After Pinkney left, the caregiver called 911. A police officer responded just before midnight. Police officers observed that a window going into the basement of the woman’s home had been broken, a lawn chair had been placed under the window and the door from the basement into the house had been forced open. Based on the victims’ statements that the intruder made a phone call, the police officers obtained a court order for records from all the major cell phone carriers showing all calls that went through the cell tower nearest to the woman’s home at the time of the break-in.

Police officers also spoke to the victims’ neighbors to see if they had seen or heard anything suspicious and someone mentioned Pinkney. A police officer then searched for and found Pinkney’s cell phone number through a paid online database. Police officers confirmed that phone calls made from Pinkney’s cell phone had gone through the cell tower nearest to the victims’ home.

Records showed that on December 29, Pinkney sent a text message to his girlfriend that he was going to “hit that jug,” or go get some money, and he needed his girlfriend to find someone to watch their kids. On the early morning of December 30, Pinkney’s girlfriend sent a text message to him asking, “Did [you] go in?” Pinkney responded that he had not gone in because he made too much noise breaking a window, but that he would go back the next night.

On the night of December 31, Pinkney sent a text message to his girlfriend just after 10:00 p.m. Eastern Standard Time statingthathe was presently going through the window, and, shortly thereafter, at approximately 10:45 p.m., he sent a text message to her that he was in the house. Pinkney’s girlfriend replied immediately by asking Pinkney what was going on, and Pinkney responded, “[I’m] good, just let me handle this as fast as I can[, I’ll text you when I’m done].” Pinkney then sent a text message to his girlfriend at approximately 11:30 p.m. and said that the victims did not have anything and he was upset.

When police later advised the elderly woman that Pinkney had been arrested, she said that she knew it was him who had broken into her home. At trial, the woman identified Pinkney as the man who broke into her house.

1. Pinkney contends that the trial court erred in denying his motion for a mistrial on the ground that during his opening statement, his trial counsel misstated evidence to the jury. Specifically, he argues that the State misled his trial counsel with regard to the timing of Pinkney’s and his girlfriend’s text messages, causing trial counsel to make an argument to the jury that was based on a misstatement of the evidence. We discern no error.

“Whether to declare a mistrial is in the discretion of the trial court and will not be disturbed on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” (Citations and punctuation omitted.) Rafi v. State, 289 Ga. 716, 720 (4) (715 SE2d 113) (2011).

During his opening argument, trial counsel had argued that the phone records were inaccurate and inconsistent with the other evidence, such as the 911 call, which showed that the perpetrator was inside the house about an hour later. On the evening of the first day of trial, the prosecutor alerted Pinkney’s trial counsel that the records of Pinkney’s text messages, which had previously been disclosed by the State, were in Central Standard Time, not in Eastern Standard Time, as trial counsel had originally assumed. Pinkney moved to prohibit the State from relying on the correct time of the calls or, in the alternative, for a mistrial. The trial court denied both motions.

At trial, an investigator with Pinkney’s cell phone carrier testified regarding both Pinkney’s and his girlfriend’s cell phone records, including their text messages. The cell phone records confirmed that on December 31, 2011 between 10:00 p.m. and 11:30 p.m. Eastern Standard Time, calls made from Pinkney’s cell phone had gone through the cell tower nearest the victims’ home. The investigator also explained that Pinkney’s carrier stored its customers’ text messages in Texas and, accordingly, the text message records were kept in Central Standard Time. The records of the phone calls, however, were in Eastern Standard Time.

We cannot determine from the record what, exactly, defense counsel argued to the jury since the opening statements were not transcribed. Nonetheless, a mistrial was not essential to the preservation of Pinkney’s right to a fair trial since the investigator’s testimony corrected trial counsel’s misstatement during opening argument, and the trial court instructed the jury that counsels’ opening and closing arguments were not evidence. Cf. Williams v. State, 292 Ga. 844, 848-849 (3) (b) (742 SE2d 445) (2013) (trial counsel’s misstatement to the jury regarding time of 911 call was not ineffective assistance because the misstatement was corrected by a detective’s testimony and the trial court charged the jury that counsels’ arguments were not evidence). Accordingly, the trial court did not err in denying Pinkney’s request for a mistrial.

2. Pinkney contends that the trial court erred in admitting into evidence his cell phone number and the records obtained from his cell phone carrier because his phone number was obtained in violation of Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). We disagree.

“The Fifth Amendment requires the exclusion of any statement made by an accused during custodial interrogation, unless he has been advised of his rights and has voluntarily waived those rights.” (Citation omitted.) Franks v. State, 268 Ga. 238, 239 (486 SE2d 594) (1997). Georgia law, however, provides for a limited booking exception to the Miranda rule for questions attendant to arrest, such as the suspect’s name, age, address, educational background and marital status. See id.

After Pinkney was arrested, a detective sought to interview him. Before reading Pinkney his Miranda rights, the detective stated that he had a few housekeeping issues. The detective asked Pinkney his full name, date of birth, age, and level of education. The detective then noted the date and time, asked Pinkney if he was under the influence of anything that could affect his decision-making, whether he spoke and wrote English, and whether he spoke any other languages. The detective also asked Pinkney for a “contact number,” and Pinkney responded with his cell phone number.

Immediately thereafter, the detective read Pinkney his Miranda rights. Pinkney indicated that he understood his Miranda rights, and he invoked his right to counsel. The detective told Pinkney the charges against him, the interview ended, and Pinkney was taken back to jail. At trial, a video of Pinkney’s conversation with the detective was played for the jury.

Whether a police officer may ask a suspect for his contact number under the booking exception to Miranda is not an issue that has been decided by this Court or the Supreme Court of Georgia. We need not decide this issue here because the police officers obtained Pinkney’s phone number from their own investigation before placing Pinkney under arrest. Since the police were able to obtain Pinkney’s phone number and records independently of any alleged Miranda violation, this evidence was properly admitted. See Teal v. State, 282 Ga. 319, 323 (2) (647 SE2d 15) (2007) (“The independent source doctrine allows admission of evidence that was discovered by means wholly independent of any constitutional violation[.]”) (citation omitted); see also Merritt v. State, 288 Ga. App. 89, 98 (2) (653 SE2d 368) (2007) (any error in admitting defendant’s statement during booking that he drank alcohol on the day of the accident was harmless given other evidence that defendant had been drinking). Accordingly, we affirm.

Decided July 2, 2015.

Mary Erickson, for appellant.

Brian K. Fortner, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., concurs. Branch, J., concurs fully in Division 2 and in judgment only in Division 1.

       The jury also found Pinkney guilty of two counts of aggravated assault (OCGA § 16-5-21 (b)), and the trial court merged those offenses with the attempted armed robbery convictions.

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


source: Caselaw Access Project

author: Miller, Judge. Andrews, Presiding Judge,

license: Public Domain

text:
    A15A0442.
    CITY OF FITZGERALD v. CARUTHERS.
    (774 SE2d 777)
   Miller, Judge.

Larry Caruthers sued the City of Fitzgerald (the “City”) alleging that the City was liable for damages for failing to remove a decayed tree limb that crashed down on him while he was standing on a curb. The trial court denied the City’s motion for summary judgment, concluding that the City was not entitled to sovereign immunity because a question of fact existed as to whether the City had notice of the decayed tree limb. We granted the City’s application for interlocutory review, and on appeal, the City contends that the trial court erred in denying its motion for summary judgment because there was no evidence that the City had actual or constructive notice of the hazardous tree. For the following reasons, we affirm.

Summary judgment is proper when the moving party shows that no genuine issue of material fact exists, and that the movant is entitled to judgment as a matter of law. We apply a de novo standard of review to an appeal from a grant or denial of summary judgment and construe the evidence most favorably to the nonmovant.

(Footnotes omitted.) Welch v. Ga. Dept. of Transp., 283 Ga. App. 903 (642 SE2d 913) (2007).

So viewed, the evidence shows that Caruthers, who worked for the City’s Public Works Department, was walking home from work on the afternoon of March 23, 2010. Caruthers walked home down an alley between Magnolia and Jessamine Streets. When Caruthers reached the curb on Jessamine Street, a tree limb fell and struck him, rendering him unconscious for approximately 20 minutes and causing injuries to his neck and upper back, as well as lacerations to his eye. Caruthers was taken to the hospital.

Later that night, the Director visited the scene of the accident and observed a rotten limb lying in the road. The Director also observed the tree in a declining state with some rotten limbs at the top of it. Based on these observations, the Director ordered the tree to be removed, but he did not document the work request, nor did he take any pictures of the tree. The Director conceded that he had no specialized training in evaluating trees, and that his conclusion that the tree was slowly dying was based on his experience as a layperson.

Removal of the decayed tree began the following day with the limbs being cut down first. Before the stump was removed, Caruthers, who had been released from the hospital, saw that the stump had rotten parts.

At the time of Caruthers’s injury, the City’s Public Works Department employed 38 individuals to maintain the public thoroughfares in the City, including the maintenance of trees located on City property. In less than one month, these employees would cover all of the City’s streets. Additionally, Caruthers was aware that several trees in the area had been trimmed about a year before his injury because of complaints that the limbs were obstructing bus traffic.

The Director admitted that the Public Works Department did not have a procedure for the inspection of trees on City property. Instead, the Director held periodic safety meetings with the employees of the Public Works Department where the Director instructed the employees to be aware of their surroundings and to report any hazards they might encounter.

The Public Works Department also received reports from city residents about hazardous trees. Upon receiving a report, the department would usually generate a work order that would be given to a crew member. The Director conceded, however, that written work orders were not always prepared. The Public Works Department did not maintain duplicates of work orders, and the department did not have any written documentation showing whether work orders had been completed. While the Director was not aware of any complaints made about the condition of the tree in question before the limb fell on Caruthers, not every complaint was documented, so he conceded that there may have been complaints about the tree in question that were not on file with the City.

On appeal, the City contends that the trial court erred in denying its motion for summary judgment, because there is no evidence that the City had actual or constructive notice of the decaying tree. We disagree.

Although the City raises the issue of sovereign immunity, a municipality’s function of improving or maintaining its streets and sidewalks in a safe condition has long been held to be ministerial in nature. City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 3-4 (2) (421 SE2d 113) (1992). Sovereign immunity does not shield a municipality from liability for failing to perform or negligently performing a ministerial duty. OCGA § 36-33-1 (b); see also City of Atlanta v. Durham, 324 Ga. App. 563, 565 (751 SE2d 172) (2013) (“[Mjunicipalities have been subject to suit for negligent performance or nonperformance of their ministerial functions while enjoying immunity from suit for the negligent performance or nonperformance of their governmental functions.”) (citations omitted). Consequently, it is well settled that a municipal corporation has a duty to keep its streets and sidewalks in a reasonably safe condition for travel and may be liable for damages for injuries sustained as a result of its breach of that duty. Roquemore v. City of Forsyth, 274 Ga. App. 420, 422 (617 SE2d 644) (2005).

More specifically, under OCGA § 32-4-93 (a),

municipalities generally have a ministerial duty to keep their streets in repair, and they are liable for injuries resulting from defects after actual notice, or after the defect has existed for a sufficient length of time for notice to be inferred. This Court has held that the term “defects” covered by this Code section includes defects brought about by the forces of nature and by persons and which render the street unsafe and includes objects adjacent to and suspended over the street.

(Citations and punctuation omitted.) Roquemore, supra, 274 Ga. App. at 423. “The length of time a defect must exist in order for an inference of notice to arise is ordinarily a question for the jury.” (Punctuation and footnote omitted.) Schuessler v. Bennett, 287 Ga. App. 880, 886-887 (3) (652 SE2d 884) (2007).

With regard to liability for a decaying tree, while there is no duty to routinely inspect trees for nonvisible rot, a landowner has a duty to inspect trees with “visible, apparent, and patent” decay. Wesleyan College v. Weber, 238 Ga. App. 90, 94 (b) (517 SE2d 813) (1999). If the landowner knew or reasonably should have known that the tree was “diseased, decayed or otherwise constituted a dangerous condition,” the owner has a duty to remove the danger. See Ga. Dept. of Transp. v. Smith, 314 Ga. App. 412, 416 (2) (724 SE2d 430) (2012). A landowner is charged with knowledge of the dangerous condition of a tree if a layperson should have known the tree was diseased. Id. (“Defendant would not be charged with the knowledge or understanding of an expert trained in the inspection, care and maintenance of trees.”) (punctuation and footnote omitted).

As to actual notice, the City admitted that it did not document every complaint about hazardous trees. As the nonmovant, Caruthers was not required to submit evidence of actual notice because

[o]n a motion for summary judgment the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.

(Punctuation omitted.) Carter v. Mayor & Alderman of City of Savannah, 200 Ga. App. 263, 266 (1) (407 SE2d 421) (1991). Viewing the evidence in the light most favorable to Caruthers, there is a question of fact as to whether the City had actual notice of the hazard because of the City’s own lack of documentation on the issue.

Moreover, even if the City did not have actual notice, there is a question of fact as to whether the City had constructive notice. Notably, the Director testified that he observed dead limbs on the tree in question, and Caruthers noticed that the stump also showed signs of rot and decay. The Director’s opinion that the tree was in a declining state, or was slowly dying, was based upon a layperson’s experience and knowledge, as he testified that he had no specialized training in evaluating trees. Based on this evidence, there is a jury question as to whether the decay was visible and apparent such that the City knew or should have known that the tree was diseased and, as a result, whether the City was liable for breaching its duty to remove it. See Wesleyan College, supra, 238 Ga. App. at 90, 93-94 (a)-(c) (four-foot-long cavity in a ninety-four-foot-tall pine tree that was observable to a layperson and signs of nearby blighted trees raised a jury question as to whether the landowner knew or should have known about a diseased and dangerous tree and whether the landowner breached a duty to remove the hazard); cf. City Council of Augusta v. Hammock, 85 Ga. App. 554, 560-561 (4) (b) (69 SE2d 834) (1952) (it was a question for the jury to determine whether the city had exercised ordinary care in failing to discover and remove a large dead limb that fell from a tree and struck a pedestrian). Accordingly, the trial court did not err in denying the City’s motion for summary judgment.

Judgment affirmed.

Andrews, P. J., concurs specially. Branch, J., concurs in judgment only.

Andrews, Presiding Judge,

concurring specially.

I agree with the majority opinion that the trial court correctly denied the City of Fitzgerald’s motion for summary judgment on the basis of sovereign immunity because a jury issue exists as to whether the City had inferred or constructive notice of the rotten condition of the tree branch that fell and hit Caruthers. I concur specially to express disagreement with other conclusions reached by the majority.

“Sovereign immunity applies to municipalities, unless the General Assembly waives it by law. Ga. Const, of 1983, Art. IX, Sec. II, Par. IX.” Godfrey v. Ga. Interlocal Risk Mgmt. Agency, 290 Ga. 211, 214 (719 SE2d 412) (2011); OCGA § 36-33-1 (a). The General Assembly has provided for such waiver in OCGA § 36-33-1 (b), which states: “[mjunicipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable.” “This provision has for more than a century been interpreted to mean that municipal corporations are immune from liability for acts taken in performance of a governmental function but may be liable for the negligent performance of their ministerial duties.” City of Atlanta v. Mitcham, 296 Ga. 576, 577-578 (769 SE2d 320) (2015). As the majority opinion explains, the extent to which the City’s sovereign immunity may be waived for the negligent performance of the specific ministerial duty at issue in this case is set forth in OCGA § 32-4-93 (a), which provides as follows:

A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no
actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.

Mitcham, 296 Ga. at 577, n. 2 (OCGA § 32-4-93 (a) sets forth waiver of municipal sovereign immunity for defects in public roads); Roquemore v. City of Forsyth, 274 Ga. App. 420, 423 (617 SE2d 644) (2005) (municipalities generally have a ministerial duty under OCGA § 32-4-93 (a) to keep public roads reasonably safe for travel); see Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 836-837 (165 SE2d 141) (1968). The liability of municipalities for defects in public roads under OCGA § 32-4-93 (a) also extends to public sidewalks. Hagan v. Ga. Dept. of Transp., 321 Ga. App. 472, 478 (739 SE2d 123) (2013). The reference to defects in OCGA § 32-4-93 (a) refers to the physical condition of the city road or sidewalk and to defects brought about by forces of nature or persons which render the road or sidewalk unsafe for travel. McKinley v. City of Cartersville, 232 Ga. App. 659, 660 (503 SE2d 559) (1998). These defects include objects adjacent to and suspended over the city road or sidewalk — including tree branches — which render use of the road or sidewalk hazardous. Richards v. Mayor & City Council of Americus, 158 Ga. App. 693, 694 (282 SE2d 122) (1981); Carter v. Ga. Power Co., 204 Ga. App. 77 (418 SE2d 379) (1992). Liability is imposed “for injuries resulting from [these] defects after actual notice, or after the defect has existed for a sufficient length of time for notice to be inferred.” Bush v. City of Gainesville, 105 Ga. App. 381, 383 (124 SE2d 667) (1962); OCGA § 32-4-93 (a).

I agree that deposition testimony from the City’s Director of Public Works was sufficient to create a jury issue as to whether, prior to the accident, the City had inferred or constructive notice of the existence of the rotten tree branch which fell off the tree and injured Caruthers while he was standing at the curb of the public road. The Director testified that he went to the accident scene immediately after the accident occurred, saw the tree at issue, and saw “a rotten limb” from the tree lying in the road. The Director testified that, although the tree was not dead, “it was in a declining state [;] [t]here were some rotten limbs up in the top of it[;] and I felt like it was best just to go ahead and remove any further hazard.” Based on these observations, the Director ordered that the tree be cut down. Although the City “ha[d] no duty to check limbs overhanging a public road for non-visible rot,” (Carter, 204 Ga. App. at 78), there was evidence of visible rot in this case which created a jury issue as to whether the hazard had existed for a sufficient length of time for notice to be inferred.

Contrary to the majority opinion, there is no evidence in the record that, prior to the accident, the City had actual notice of the hazard created by the rotten branch. The City’s “lack of documentation,” as noted in the majority opinion, was not evidence of actual notice by the City and did not create a jury issue as to actual notice. The trial court erred by finding there was a jury issue as to whether the City had actual notice of the hazard, and by denying the City’s motion for summary judgment (asserting sovereign immunity) on this ground. The trial court correctly denied the City’s motion for summary judgment (asserting sovereign immunity) by concluding that a jury issue existed as to whether the City had inferred or constructive notice of the hazard. Accordingly, the trial court’s denial of the City’s motion for summary judgment should be affirmed under the right for any reason rule. City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002).

Decided July 2, 2015.

Young, Thagard, Hoffman, Smith, Lawrence & Shenton, James B. Thagard, Brian J. Miller, for appellant.

Hinton & Powell, A. Jack Hinton; Montlick & Associates, Kathleen Edwards-Opperman, for appellee.

Finally, the majority opinion wrongly concludes that the City had the burden of proof in moving for summary judgment on the basis of sovereign immunity.

Sovereign immunity is not an affirmative defense (see OCGA § 9-11-8 (c)) that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the [City], and the waiver must be established by the party seeking to benefit from the waiver.

Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (434 SE2d 488) (1993), overruled on other grounds in Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, 272 Ga. 209, 211 (528 SE2d 508) (2000). In response to the City’s motion for summary judgment on the basis of sovereign immunity, Caruthers had the burden to show a waiver of the City’s immunity. Bartow County v. Southern Dev. III, L.P., 325 Ga. App. 879, 882 (756 SE2d 11) (2014). The trial court correctly denied the City’s motion for summary judgment because, as set forth above, Caruthers carried his burden by producing evidence sufficient to establish a factual issue as to whether the City had inferred notice of the hazard.

       Caruthers also sued the Director of the Public Works Department for the City (the “Director”), and he does not challenge the trial court’s grant of summary judgment to the Director.


author: Dillard, Judge.

text:
    A15A0533.
    IN THE INTEREST OF S. O. C., a child.
    (774 SE2d 785)
   Dillard, Judge.

The mother of a minor child, S. O. C., appeals from an order of the Juvenile Court of Hall County terminating her parental rights and its subsequent denial of her motion for new trial. Specifically, the mother contends that the court lacked clear and convincing evidence to support its findings that (1) the child was deprived; (2) lack of proper parental care or control caused the deprivation; (3) such cause was likely to continue; and (4) the continued deprivation would cause or was likely to cause serious physical, mental, or emotional harm to the child. Because we find that there was insufficient evidence to support the juvenile court’s finding that continued deprivation would cause or was likely to cause harm to the child, we reverse.

Viewed in the light most favorable to the juvenile court’s findings, the evidence shows that S. O. C. was born on December 26, 2011, a few weeks premature. At the time of his birth, S. O. C. had marijuana metabolites in his system and he was underweight. Additionally, at that time it was determined that both the mother and S. O. C. were HIV-positive. As a result, on January 17, 2012, Hall County Department of Family & Children Services (“DFCS”) successfully sought an authorization for shelter care. On January 24, 2012, the mother moved to contest the authorization of shelter care, and on that same day, DFCS filed a deprivation petition. Following a February 10, 2012 hearing, the juvenile court entered an order finding that S. O. C. was deprived based on its conclusion that the mother’s marijuana use impaired her ability to care for S. O. C.’s medical needs. Nevertheless, the court returned custody of S. O. C. to his mother subject to several conditions, including that the mother refrain from illegal drug use, attend to S. O. C.’s medical needs, and continue living with her boyfriend, who had stable employment, a stable residence, and wished to raise S. O. C. as his own son.

On May 23, 2012, the juvenile court issued a judicial-review order, finding that the mother had remained drug free and otherwise compliant with her case plan. The court entered a similar order on September 12, 2012, finding that the mother had completed a parenting class, taken S. O. C. to all of his medical appointments, and had remained in the residence she shared with her boyfriend. However, she had missed a recent drug screening, which the court considered to be equivalent to a positive test. In addition, as a result of a substance-abuse assessment, the mother was advised to undergo 17 weeks of substance-abuse treatment. But she disagreed with this assessment and indicated her intention to seek a second opinion.

On January 17, 2013, DFCS filed another deprivation petition, alleging that the mother had tested positive for marijuana in an August 2012 drug screening and that she had missed other screenings and failed to attend the recommended substance-abuse-treatment classes. However, on February 4, 2013, the juvenile court issued an order, stemming from a November 19, 2012 hearing, in which it allowed the mother to keep custody of S. O. C. in light of the fact that she had not failed any additional drug tests since the August screening. But one day later, the court issued an order finding that the mother had tested positive for marijuana in August and September 2012, and warning her that further substance abuse would likely result in the loss of custody of S. O. C.

On April 10, 2013, after a February 18, 2013 hearing, the juvenile court again found S. O. C. to be deprived based on the fact that the mother had failed to complete the substance-abuse-treatment classes, had tested positive for marijuana as recently as December 2012, and had missed several other scheduled drug screenings. However, the court delayed final disposition of S. O. C. to allow the mother to enter the Hall County Family Treatment Court. This order was followed by an order of final disposition on April 24, 2013, which allowed the mother to retain custody of S. O. C. subject to her successful completion of the Family Treatment Court program. But onMay 1,2013, after determining that the mother had tested positive for marijuana in three recent drug screenings (and, therefore, was required to serve a fifteen-day jail term), the juvenile court entered an order placing custody of S. O. C. with DFCS. At that time, the mother requested that custody be placed with her boyfriend, but the court declined to do so because he had no one to provide child care while he worked. On June 10,2013, the court entered a final disposition order, again noting that it was placing custody of S. O. C. with DFCS based on the mother’s continued marijuana use.

Shortly thereafter, a reunification plan was established. Nevertheless, over the course of the next few months, the mother served short jail terms on at least five separate occasions after either testing positive for marijuana or missing screenings (required by the Family Treatment Court). Consequently, on October 8, 2013, DFCS filed a petition to terminate the mother’s parental rights. Initially, the juvenile court scheduled a hearing on the matter for January 3, 2014. But after learning that the mother had been hospitalized since late November 2013, due to pneumonia and resulting respiratory failure, the court continued the case for several weeks.

On January 24, 2014, the juvenile court held an evidentiary hearing on DFCS’s petition to terminate the mother’s parental rights. During that hearing, the coordinator for the Family Treatment Court testified that the mother initially enrolled in the program on March 6, 2013, and was eventually discharged on September 4, 2013, for repeated failures to comply with the program’s requirements. Specifically, the court found that the mother often missed drug screenings and failed to attend treatment counseling sessions. And as a result of these failures, she was incarcerated on several occasions. Additionally, the mother attempted to forge documents indicating that she had performed the required community service. And although she appeared to genuinely love S. O. C. and had not actually tested positive for marijuana since May 27, 2013, the Family Treatment Court’s supervisors ultimately discharged her from the program due to her inability to take responsibility for her actions and her overall dishonesty.

A licensed social worker with the Family Treatment Court also testified that the mother was dishonest and seemed to be in denial regarding her substance-abuse problem. The social worker added that the mother often missed counseling sessions. Finally, the social worker also noted that although it appeared toward the end of her time in the program that the mother had stopped her drug abuse, she still displayed the behavioral signs — primarily dishonesty — of a dependent person.

Additionally, the DFCS caseworker assigned to the mother’s case testified that she had stable housing and was employed prior to her hospitalization, but that she had failed to complete other requirements of her reunification plan, including attending drug screenings scheduled after her discharge from the Family Treatment Court and completing additional parenting classes. The caseworker did acknowledge, however, that the mother attended all of S. O. C.’s medical appointments despite no longer having custody of the child. As for S. O. C., the caseworker stated that he had been with his current foster family since November 2013, and was doing quite well.

The foster mother echoed the caseworker’s testimony that S. O. C. was doing well since being placed in her family’s care on November 2, 2013, and further stated that she and her husband wished to adopt the child. She also testified that she and her husband were very diligent about administering the three medications required to treat S. O. C.’s HIV and attending all of the child’s medical appointments. The foster mother added that during one of these appointments, S. O. C. did not want to go to his mother upon seeing her at the clinic and that the child seemed grumpy or withdrawn after the scheduled weekly visits with his mother.

During the hearing, the mother’s boyfriend discussed his employment as a restaurant manager and informed the court of his intention to marry the mother and adopt S. O. C., whom he loved and viewed as his own son. He also claimed that he did not tolerate drug abuse and that he had given the mother an ultimatum to cease her use of marijuana, but that despite her past drug use, the mother had always appropriately cared for S. O. C. Additionally, the boyfriend did not think the mother had used drugs since S. O. C.’s birth.

The mother also testified during the hearing, noting that her recent failures to comply with the reunification plan were due to her lengthy hospitalization. And despite her hospitalization, the mother explained that she remained employed and still lived with her boyfriend, whom she planned to marry. She also acknowledged that she had used marijuana for a significant portion of her life, but that she had never neglected S. O. C., and that his health never suffered while he was in her care. Indeed, the mother went on to explain that she had always properly administered his medications and had never missed his medical appointments even though she often did not have reliable transportation.

In support of her testimony, the mother introduced an affidavit of a social worker from the pediatric clinic in Atlanta where S. O. C. receives treatment. In that affidavit, the social worker noted that she had known S. O. C. and the mother since the child’s birth and that the mother had always attended his medical appointments and properly administered his medications. In fact, the social worker averred that she had no concerns with regard to the medical care S. O. C. received while in his mother’s custody.

At the conclusion of the hearing, the juvenile court granted DFCS’s petition to terminate the mother’s parental rights. And in an order issued on March 20, 2014, the court reiterated that ruling, finding, inter alia, that the mother’s history of drug use deprived S. O. C. and that, given the child’s medical condition, the mother’s drug use could potentially endanger his health. The court further found that S. O. C. was doing well with his foster family, who wished to adopt him, and that S. O. C. could no longer wait for the mother to comply with the reunification goals. Thus, the court found that termination of the mother’s parental rights was in the child’s best interests.

Subsequently, the mother filed a motion for new trial, which the juvenile court denied. She then filed an application for discretionary appeal with this Court, which we granted. This appeal follows.

At the outset, we note that on appeal from a termination order, we view the evidence in the “light most favorable to the juvenile court’s ruling and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated.” A juvenile court’s termination of parental rights involves a two-step process. The first step dictates a finding of parental misconduct or inability, which requires clear and convincing evidence that (1) the child is deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are satisfied, the court must then determine whether termination of parental rights is “in the child’s best interest, considering physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home.”

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

1. In her first two enumerations of error, the mother contends that the evidence was insufficient to support the juvenile court’s findings that S. O. C. was deprived and that lack of proper parental care or control caused the deprivation. We disagree.

Formerly, Georgia law defined a deprived child as, inter alia, “a child who... [i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” And in determining whether a child is without proper parental care or control, the juvenile court is entitled to consider, inter alia, whether “there is excessive use of or a history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances by the parent.” Furthermore, when there is clear and convincing evidence of such chronic unrehabilitated drug use, the juvenile court may infer an adverse impact on the child and find the child deprived.

Here, construed in the light most favorable to the juvenile court’s judgment, the evidence shows that over the course of nearly two years after S. O. C. was born, the mother failed multiple drug tests and missed numerous scheduled drug screenings. In fact, the evidence shows that the mother used marijuana for much of her life, including just before S. O. C. was born and when he was in her custody (albeit not in his direct presence). Indeed, the mother admitted as much during the evidentiary hearing. Thus, the evidence was sufficient to support the juvenile court’s findings that S. O. C. was deprived and the mother’s lack of proper parental care — her drug use — caused the deprivation.

2. The mother also contends that the evidence was insufficient to support the juvenile court’s finding that S. O. C.’s deprivation was likely to continue. Again, we disagree.

Itis, of course, well settled that a juvenile court may consider “the past conduct of the parent in determining whether the conditions of deprivation are likely to continue [.]” But as previously noted, it is equally true that “evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required.” Nevertheless, in considering past deprivations compared to present achievements, juvenile courts are “entitled to assign much less weight to such ‘assertions of sudden parental fitness’ when compared to the other evidence.”

Here, the evidence shows that the mother remained meaningfully engaged in the life of S. O. C., had stable housing, and seemed to have stable employment. But the evidence also revealed that even after S. O. C. was removed from her custody, the mother tested positive for marijuana at least once and missed several other drug screenings, which resulted in her incarceration (as required by the Family Treatment Court program). In addition, during this same period of time, the mother failed to complete the required substance-abuse-treatment classes and counseling sessions that were part of her reunification plan. And while some of these failures were undoubtedly attributable to her lengthy illness, the lion’s share occurred prior to her late-November hospitalization. Thus, the evidence was sufficient to support the juvenile court’s finding that S. O. C.’s deprivation was likely to continue.

3. Finally, the mother further contends that the juvenile court erred in finding that the continued deprivation will cause or is likely to cause serious physical, mental, or emotional harm to S. O. C. We agree.

Under former OCGA § 15-11-94 (b) (4) (A) (iv), the juvenile court must determine whether “continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child.” And as this Court explained some time ago, it is not “automatically true that a finding that deprivation is likely to continue will support a finding that continued deprivation will harm the child.” Indeed, here, there is little to no evidence that the continued deprivation has harmed or will harm S. O. C. Even when S. O. C. was still in the mother’s custody, there was no evidence that he was neglected in any way or that his serious medical condition was inadequately monitored or treated. Rather, the evidence shows that the mother properly administered S. O. C.’s required medications and diligently attended all of his medical appointments. In fact, the mother’s diligence in the latter regard continued even after S. O. C. was removed from her custody — i.e., prior to her hospitalization, she traveled from Gaines-ville to meet S. O. C. andhis foster parents at the Atlanta clinic where the child received treatment.

Furthermore, other than the foster mother’s testimony that S. O. C. would sometimes seem grumpy after visiting with his mother, there was no evidence that (1) instability and impermanency were currently causing specific harms to S. O. C. or (2) the failure to terminate the mother’s parental rights would be detrimental to the child. Additionally, no caseworker testified as to any adverse effect on S. O. C. “by [his] remaining in foster care as opposed to [his] being permanently adopted.” To the contrary, the evidence shows that S. O. C. is currently thriving in foster care. And while the DFCS caseworker testified that she believes S. O. C. would possibly suffer harm if he was returned to the mother at this point, “the mother’s [present] inability to care for her children does not necessarily mean that her current relationship with them is detrimental.”

In ruling that termination of the mother’s parental rights was warranted, the juvenile court noted the strong bond between S. O. C. and his current foster parents, the admirable job they have done in caring for his medical needs, and their desire to adopt him. And while we certainly acknowledge and appreciate that S. O. C. is thriving in his foster home, as well as the commendable care the foster parents are providing the child, “the juvenile court has no authority to sever the natural parent-child relationship simply because it believes the child would be better off with the foster family.” Indeed, the juvenile court’s preference that S. O. C. remain with his foster family is “wholly without consequence, when the court lacked clear and convincing evidence to terminate the natural mother’s parental rights.” As the Supreme Court of the United States so eloquently explained in the seminal decision of Santosky v. Kramer, the “fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.”

Decided July 2, 2015.

Irene Serlis, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, F. Barton Patterson, Assistant Attorney General, for appellee.

In summary, no judicial determination has a more “drastic significance than that of permanently severing a natural parent-child relationship, and it must be scrutinized deliberately and exercised most cautiously.” Thus, because the evidence did not clearly and convincingly establish that the continued deprivation will cause or is likely to cause serious harm to S. O. C., the juvenile court erred in terminating the mother’s parental rights. Accordingly, we reverse.

Judgment reversed.

Ellington, P. J., and McFadden, J., concur.

        See In the Interest of T.W., 297 Ga. App. 886, 886 (678 SE2d 546) (2009).

       S. O. C.’s biological father has never been identified and is not a party to this proceeding.

        In the Interest of A. T., 316 Ga. App. 782, 784-85 (730 SE2d 451) (2012) (punctuation omitted).

       We note that Title 15 has been significantly revised by the General Assembly, with the revisions effective as of January 1, 2014. Ga. L. 2013, p. 294, Part V, § 5-1 (“This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date.”). Here, although the hearing and the juvenile court’s decision occurred in January 2014, the termination proceedings commenced when the State filed its petition in October 2013. Thus, we review the juvenile court’s decision under the former version of the statute. See, e.g., In the Interest of G. R. B., 330 Ga. App. 693, 693 n.1 (769 SE2d 119) (2015). And although it appears that the juvenile court, at least in part, relied on the revisions to the code in its order, that reliance does not affect our analysis.

        See former OCGA § 15-11-94 (a), (b) (4) (A) (i)-(iv); In the Interest of A. T., 316 Ga. App. at 784; In the Interest of D. W., 294 Ga. App. 89, 91 (1) (668 SE2d 533) (2008).

        In the Interest of D. W., 294 Ga. App. at 91 (1) (punctuation omitted); accord In the Interest of J. V. J., 329 Ga. App. 421, 424 (765 SE2d 389) (2014); In the Interest of A. T., 316 Ga. App. at 784.

        In the Interest of T. Z. L., 325 Ga. App. 84, 94 (1) (a) (751 SE2d 854) (2013) (punctuation omitted); accord In the Interest of J. V. J., 329 Ga. App. at 424; In the Interest of C. J. V., 323 Ga. App. 283, 287 (746 SE2d 783) (2013).

        In the Interest of A. C., 285 Ga. 829, 833 (2) (686 SE2d 635) (2009).

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

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

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

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

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

        In the Interest of C.J. V., 323 Ga. App. at 285 (punctuation omitted); accord In the Interest of J. V. J., 329 Ga. App. at 424-425; In the Interest of D. L. T. C., 299 Ga. App. at 769 (1).

        In the Interest of J. V. J., 329 Ga. App. at 425 (punctuation omitted); accord In the Interest of C. J. V., 323 Ga. App. at 283; In the Interest of J. C., 242 Ga. 737, 738 (1) (251 SE2d 299) (1978); In the Interest of M. A., 280 Ga. App. 854, 856 (635 SE2d 223) (2006); In the Interest of T. J. J., 258 Ga. App. 312, 314 (574 SE2d 387) (2002).

       Former OCGA § 15-11-2 (8) (A).

        In the Interest of N. H., 297 Ga. App. 344, 345 (1) (677 SE2d 399) (2009) (punctuation omitted); see former OCGA § 15-11-94 (b) (4) (B) (ii).

        See In the Interest of N. H., 297 Ga. App. at 345 (1).

        See In the Interest of P. O. M., 255 Ga. App. 534, 535 (1) (566 SE2d 334) (2002) (holding that mother’s unrehabilitated drug use supported court’s finding that child was deprived and that the deprivation was caused by mother’s lack of proper parental care or control).

        In the Interest of M. C., 287 Ga. App. 766, 768 (1) (c) (653 SE2d 120) (2007) (punctuation omitted).

        Id. at 769 (1) (c) (punctuation omitted).

        Id. (punctuation omitted).

        See id. (holding that father’s failure to undergo regular drug screens and comply with other aspects of his reunification plan was sufficient evidence to support the juvenile court’s finding that the child’s deprivation was likely to continue).

        In the Interest of J. E., 309 Ga. App. 51, 57 (1) (d) (711 SE2d 5) (2011) (punctuation omitted); see former OCGA § 15-11-94 (b) (4) (A) (iv).

        In the Interest of J. E., 309 Ga. App. at 57 (1) (d) (punctuation omitted); accord In the Interest of J. T. W., 270 Ga. App. 26, 36-37 (2) (d) (606 SE2d 59) (2004).

        See In the Interest of A. T., 271 Ga. App. 470, 473 (610 SE2d 121) (2005) (holding that termination of mother’s parental rights was not warranted when there was no evidence that mother’s present relationship with the child was detrimental to the child’s well-being); accord In the Interest of D. F., 251 Ga. App. 859, 862 (555 SE2d 225) (2001).

        In the Interest of A. T., 271 Ga. App. at 473.

        In the Interest of J. S. B., 277 Ga. App. 660, 663 (2) (d) (627 SE2d 402) (2006) (punctuation omitted).

        In the Interest of J. V. J., 329 Ga. App. at 428; see also In the Interest of C. J. V., 323 Ga. App. at 291 (Dillard, J., concurring fully and specially) (“And while it is certainly heartening to know that the children are thriving in their foster home, the State has no business facilitating the adoption of children entrusted to its care until and unless a parent has, by her actions or inaction, forfeited her constitutional right to familial relations. The State’s primary goal must be to maintain and preserve the natural parent-child relationship . . . .”).

        In the Interest of J. V. J., 329 Ga. App. at 428.

       455 U. S. 745 (102 SCt 1388, 71 LE2d 599) (1982).

        Id. at 753 (II).

        In the Interest of J. V. J., 329 Ga. App. at 429 (citation and punctuation omitted); accord In the Interest of K. J., 226 Ga. App. at 306 (1); see also Nix v. Dep’t of Human Res., 236 Ga. 794, 795 (225 SE2d 306) (1976) (“There can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to [his or her] offspring.”).

        See In the Interest of J. S. B., 277 Ga. App. at 663-64 (2) (d) (holding that given the fact that there was no specific evidence that the children were currently suffering harm as a result of the continued deprivation, the juvenile court erred in terminating the mother’s parental rights); In the Interest of A. T., 271 Ga. App. at 473-74 (same).


author: Miller, Judge.

text:
    A15A0591.
    A15A0593.
    HOLIDAY v. STATE OF GEORGIA. NELSON v. STATE OF GEORGIA.
    (774 SE2d 793)
   Miller, Judge.

Following a bench trial, the trial court concluded that a trailer and a mobile home owned by Milton Holiday, as well as the property on which the trailer and the mobile home sat, and a vehicle owned by Rosa Nelson were subject to forfeiture because the trailer, the mobile home and the vehicle had been used by Andrew Holiday to sell methamphetamine. In Case No. A15A0591, Milton appeals, contending that the trial court erred in (1) failing to find that he was an innocent owner pursuant to OCGA § 16-13-49 (e) (1), and (2) holding that the forfeiture of his property was not an excessive fine. In Case No. A15A0593, Nelson appeals, contending that the trial court erred in finding that she was not an innocent owner. Since the evidence showed that both Milton and Nelson knew or could reasonably have known that their property was being used in a manner to facilitate drug trafficking and the forfeiture of Milton’s property was not an excessive fine, we affirm.

In rendering judgment on a complaint for forfeiture, the trial court is required to make mixed findings of fact and law, which this Court must accept unless they are clearly erroneous. We defer to the trial court’s judgment as to witness credibility and will affirm the trial court’s findings if there is any evidence supporting them.

(Citations and footnotes omitted.) Little v. State of Ga., 279 Ga. App. 329, 330 (630 SE2d 903) (2006).

In November 2011, police officers began investigating Andrew for narcotics trafficking. Andrew had previously been arrested in 2009 and spent five to six months in jail before entering guilty pleas to possession of methamphetamine with intent to distribute, possession of cocaine with intent to distribute and possession of marijuana with intent to distribute.

Andrew, Milton and Nelson lived near one another. Andrew lived with a roommate in a mobile home located on Milton’s property. Nelson lived next door to Andrew. Milton lived in a house approximately 300 yards away. Milton also owned a pink trailer that was located two to three miles away.

Andrew and his roommate sold drugs out of the pink trailer. Andrew also sold drugs out of his mobile home and Milton’s home. Police officers observed Andrew and his roommate drive from their mobile home to the pink trailer to meet with buyers. Police officers also stopped buyers after they had left the pink trailer and found them to be in possession of methamphetamine.

In January 2013, police officers executed a search warrant on Andrew’s and Milton’s residences. At Andrew’s mobile home, police officers recovered a package containing methamphetamine, two handguns, and a prescription bottle, in Nelson’s name, for hydrocodone. Police officers also recovered cash from the trunk of Andrew’s vehicle. A small amount of methamphetamine was also found in Milton’s house. A search of a truck parked outside Milton’s residence revealed approximately 130 grams of methamphetamine and another prescription bottle, also in Nelson’s name, filled with oxycodone tablets. Police officers also discovered marijuana being grown inside Milton’s grandson’s trailer, which, was located next to Milton’s house. The smell of marijuana was noticeable outside the trailer. The pink trailer contained only a folding chair, a marijuana pipe, and a small digital scale. Police officers had previously observed Milton enter the pink trailer.

Inside Nelson’s Honda Accord, police officers found a small bag containing methamphetamine residue, as well as $60,000 in cash in the trunk of the car, some of which Andrew admitted were proceeds from drug sales. Police officers observed Andrew and his girlfriend driving Nelson’s Honda Accord during drug transactions, and Andrew admitted using the vehicle to deliver methamphetamine.

Following the search, police officers arrested Andrew, and he subsequently pled guilty to methamphetamine trafficking and selling methamphetamine. The State then filed a complaint pursuant to OCGA§ 16-13-49 (d), seeking forfeiture of Andrew’s mobile home, the pink trailer and the real property upon which they were located, all of which were owned by Milton. The State also sought forfeiture of Nelson’s Honda Accord.

At the forfeiture hearing, the State presented evidence that Milton was aware of Andrew’s 2009 drug arrest and that Nelson was also aware of Andrew’s 2009 drug arrest and subsequent conviction. Nelson had warned Andrew about the presence of police officers on Milton’s property throughout the years. Andrew had unrestricted access to both the mobile home and the pink trailer. Andrew also had a key to Nelson’s Honda Accord and could use it whenever he wished.

Following the hearing, the trial court found that Andrew sold drugs out of the pink trailer, the mobile home he lived in, and Nelson’s Honda Accord and that Nelson and Milton knew or should reasonably have known of Andrew’s drug trafficking. The trial court ordered that the trailer, the mobile home and the vehicle be forfeited.

Case No. Al SA0591

1. Milton contends that the trial court erred in finding that he knew or should have known of Andrew’s drug sales. We disagree.

Under the drug forfeiture statute, OCGA § 16-13-49, property subject to forfeiture includes that which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of the drug laws. “[Ojnce the State has presented a prima facie case for forfeiture, a claimant asserting that he is an innocent owner of the subject property bears the burden of proving such status by a preponderance of the evidence.” (Citation omitted.) Little, supra, 279 Ga. App. at 330. The innocent owner must establish, among other things, that he “[i]s not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct or that it was likely to occwr[.]” (Emphasis supplied.) OCGA § 16-13-49 (e) (1) (A).

The evidence here showed that Milton had visited the pink trailer on a few occasions. The pink trailer contained almost nothing but drug paraphernalia. Police officers found drugs all over Milton’s property, including inside Milton’s residence and in Andrew’s mobile home. Police officers also found a substantial amount of methamphetamine in a truck parked outside of Milton’s residence. The evidence also showed that Milton was aware of Andrew’s prior drug-related arrest and yet allowed Andrew full access to the pink trailer and Andrew’s mobile home. See Little, supra, 279 Ga. App. at 330 (holding that parents failed to show that they were innocent owners when they were aware of their son’s prior drug arrest and knew their property could be subject to forfeiture if their son was again arrested and yet they did not restrict son’s use of a cellular phone and only loosely restricted his use of a truck). The trial court also specifically found that Milton was evasive in his testimony when he claimed to not know that Andrew sold drugs. The trial court was not obligated to believe Milton’s testimony, even if uncontradicted, that he had no reason to know that Andrew was engaged in selling drugs on his property. See id.

2. Milton contends that the trial court erred in finding that the forfeiture of his property was not an excessive fine because he was not a direct participant in Andrew’s crimes and thus was not culpable. We disagree.

The Eighth Amendment’s bar on excessive fines applies to in rem forfeitures. See Howell v. State of Ga., 283 Ga. 24, 25 (1) (656 SE2d 511) (2008). Claims of excessiveness are to be evaluated in terms of the following considerations:

(1) the harshness, or gross disproportionality, of the forfeiture in comparison to the gravity of the offense, giving due regard to (a) the offense committed and its relation to other criminal activity, (b) whether the claimant falls within the class of persons for whom the statute was designed, (c) the punishments available, and (d) the harm caused by the claimant’s conduct; (2) the nexus between the property and the criminal offenses, including the deliberate nature of the use and the temporal and spatial extent of the use; and (3) the culpability of each claimant.

(Citation omitted; emphasis supplied.) Id. at 26 (1).

Here, applying the Howell standard, the trial court held that the forfeiture of Andrew’s mobile home, the pink trailer, and the real property on which they were located did not constitute an excessive fine because (1) the offenses were very serious when compared to the forfeiture; (2) there was a clear nexus between the offenses and the property since Andrew was running an extensive drug operation out of his mobile home and the pink trailer; and (3) Milton was culpable because he knew of Andrew’s involvement with drugs, and he had numerous opportunities to observe Andrew engaging in drug sales all over his property. Milton’s culpability, while not direct, stemmed from his “willful blindness” to Andrew’s activities. Accordingly, the trial court did not err in determining that the forfeiture was not constitutionally excessive. See Howell, supra, 283 Ga. at 27 (1) (denying excessive fine claim because claimant’s wilful blindness to her father’s illegal activities on her property made claimant culpable).

Case No. A15A0593

3. Nelson contends that the trial court erred in finding that she was not an innocent owner of the forfeited Honda Accord. We discern no error.

Specifically, Nelson argues that there was no evidence to support the trial court’s finding that she knew her brother was selling drugs. As set forth above, to prove that she is an innocent owner, Nelson must show, inter alia, that she did not know and could not reasonably have known of Andrew’s illegal conduct or that it was likely to occur. See OCGA§ 16-13-49 (e) (1) (A).

Decided July 2, 2015.

Rodney E. Davis, for appellant (case no. A15A0591).

M. Stanley Martin, for appellant (case no. A15A0593).

George H. Hartwig III, District Attorney, Kirby H. Wincey, Jr., Marie R. Banks, Assistant District Attorneys, for appellee.

The evidence shows that police officers found $60,000 in cash in Nelson’s Honda Accord. Andrew also used the Honda Accord to sell and deliver methamphetamine. Moreover, Nelson testified at the bench trial that she knew Andrew had been arrested and convicted for drug offenses, and there was evidence that she had notified Andrew about the presence of police officers at his residence throughout the years. Despite her knowledge of Andrew’s prior arrest and conviction, Nelson allowed Andrew to use her vehicle any time he asked and would often allow Andrew to keep the vehicle for days at a time.

Andrew was also in possession of a prescription bottle, in Nelson’s name, for hydrocodone, and police discovered another prescription bottle, also in Nelson’s name, filled with oxycodone tablets with Andrew’s methamphetamine stash. Furthermore, the trial court specifically found that Nelson was evasive when she claimed to not know that Andrew sold drugs. Accordingly, there was ample evidence to support the trial court’s finding that Nelson knew or should have known of her brother’s drug dealing. See Little, supra, 279 Ga. App. at 330.

Nelson also argues that the trial court erred in finding that she held the Honda Accord “jointly, in common, and in community with” Andrew, as required for the forfeiture of a vehicle. See OCGA § 16-13-49 (e) (1) (C). The evidence showed that Nelson allowed Andrew to use the Honda Accord whenever he-wished, and she considered it a “family car” because she had inherited it from their grandparents. Thus, there was evidence to support the trial court’s finding that Nelson held the vehicle jointly with Andrew. See Webb v. State of Ga., 300 Ga. App. 29, 31 (1) (684 SE2d 115) (2009) (claimant failed to prove innocent owner status when evidence showed that claimant’s husband drove their “family” vehicles, including a truck titled in claimant’s name). Accordingly, the trial court did not err in holding that Nelson failed to establish that she was an innocent owner under OCGA§ 16-13-49 (e) (1).

Judgment affirmed.

Andrews, P. J., concurs. Branch, J., concurs in judgment only.

       Andrew Holiday is Milton’s son and Nelson’s brother.

       Pursuant to OCGA § 16-13-49 (e) (1), an innocent owner must also establish that he or she:
      (B) Had not acquired and did not stand to acquire substantial proceeds from the conduct giving rise to its forfeiture other than as an interest holder in an arm’s length commercial transaction;
      (C) With respect to conveyances for transportation only, did not hold the property jointly, in common, or in community with a person whose conduct gave rise to its forfeiture;
      (D) Does not hold the property for the benefit of or as nominee for any person whose conduct gave rise to its forfeiture, and, if the owner or interest holder acquired the interest through any such person, the owner or interest holder acquired it as a bona fide purchaser for value without knowingly taking part in an illegal transaction; and
      (E) Acquired the interest: (i) Before the completion of the conduct giving rise to its forfeiture, and the person whose conduct gave rise to its forfeiture did not have the authority to convey the interest to a bona fide purchaser for value at the time of the conduct[.]


author: ANDREWS, Presiding Judge.

text:
    A15A0716.
    MCDONALD v. WEST POINT FOOD MART, INC.
    (774 SE2d 774)
   ANDREWS, Presiding Judge.

Faye McDonald sued West Point Food Mart, Inc. alleging that injuries she suffered when she tripped and fell in a West Point-operated convenience store were proximately caused by West Point’s failure to exercise ordinary care pursuant to OCGA § 51-3-1 to keep the store premises safe for her as an invited customer. The trial court granted summary judgment in favor of West Point, and McDonald appeals. For the following reasons, we affirm.

McDonald went to the convenience store nearly every day to buy lottery tickets. This time the store was crowded, and she stood in the checkout line with other customers for about ten minutes to arrive at the sales counter to buy the tickets. She bought the tickets from the cashier at the sales counter and then turned from the counter to exit the store. According to McDonald, when she turned from the counter, “I stepped back, my foot got hung on something, and I fell.” McDonald did not look down and did not see what caught her foot. But another customer in the store at the time saw what happened and provided the following statement by affidavit:

While in the West Point Food Mart store, I witnessed another customer set a case of beer on the floor while that customer was in line to check out. The case of beer was behind Faye McDonald. The Plaintiff, Faye McDonald, turned around and tripped over the case of beer. Upon tripping over the case of beer, she fell down.

McDonald testified that, while she was lying on the floor, the cashier came around the counter, and told her that she fell over some beer. The store operator, Lexander Singh, who was not present when McDonald fell, testified that a store cashier told him that a customer standing in line behind McDonald put a case of beer down on the floor, and that McDonald did not see the beer behind her on the floor and tripped and fell. Singh also testified that he was aware that customers waiting in line to check out might sometimes sit a heavy shopping item on the floor.

The trial court granted summary judgment in favor of West Point on the basis that the store lacked superior knowledge of a hazard that caused the trip and fall. “To recover on a theory of premises liability [under OCGA § 51-3-1], a plaintiff must show injury caused by a hazard on... [the] premises or approaches that the owner or occupier should have removed in the exercise of ordinary care for the safety of the invited public.” American Multi-Cinema v. Brown, 285 Ga. 442, 444 (679 SE2d 25) (2009). In Robinson v. Kroger Co., 268 Ga. 735, 736-738 (493 SE2d 403) (1997), the Supreme Court reaffirmed that the fundamental basis for imposing liability for breach of the duty set forth in OCGA § 51-3-1 is proof that the premises owner or occupier had superior knowledge of such a hazard on the premises that caused harm to the invitee. Accordingly, to prove that West Point was liable on the basis that it had superior knowledge of a hazard, McDonald had the burden of proving: (1) that West Point had actual or constructive knowledge of a hazard which it should have removed or prevented in the exercise of ordinary care and which caused the trip and fall, and (2) that, despite exercising ordinary care for her own safety, McDonald lacked knowledge of the hazard due to West Point’s actions or conditions under its control. American Multi-Cinema, 285 Ga. at 444; Robinson, 268 Ga. at 735; Alterman Foods v. Ligon, 246 Ga. 620, 622-623 (272 SE2d 327) (1980).

There was evidence in the record sufficient to create a question of fact as to whether McDonald was exercising ordinary care for her own safety when she tripped and fell without seeing the case of beer placed on the floor behind her. There was also hearsay testimony from McDonald and Singh (introduced without objection) that a cashier told them another customer in line behind McDonald put a case of beer down on the floor while waiting to check out, and that McDonald tripped on the case and fell as she turned from the sales counter to leave. Accordingly, there was some evidence creating a factual issue as to whether the store cashier had actual knowledge of the case of beer on the floor before McDonald tripped on it and fell.

On these facts, McDonald claims that the case of beer temporarily placed on the floor by another customer in the checkout line was a hazardous condition on the premises; that West Point had superior knowledge of the hazard; and that West Point is liable for her injuries because it failed to exercise ordinary care pursuant to OCGA § 51-3-1 to remove the hazard, or prevent it from occurring, to keep the premises safe. According to McDonald, a jury could find: (1) that a West Point store cashier saw the customer put the beer down and should have immediately removed or warned about the hazard; or (2) that West Point should have prevented the hazard by providing customers with shopping carts or baskets to carry items; or (3) that West Point should have put up signs warning customers about the potential hazard and instructing customers not to place items on the floor.

The duty imposed under OCGA § 51-3-1 does not make a premises owner an insurer of an invitee’s safety — rather, it “requires the exercise of ordinary care to protect the invitee from unreasonable risks of harm of which the premises owner has superior knowledge.” Ferguson v. Premier Homes, 303 Ga. App. 614, 616 (695 SE2d 56) (2010); Robinson, 268 Ga. at 740.

The owner/occupier is not required [under OCGA § 51-3-1] to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. This includes ... taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.

Id. (citations and punctuation omitted).

As Singh acknowledged, it is undisputed that a customer standing in line to check out at the convenience store might sometimes temporarily place an item on the floor while waiting to move forward in the line to check out. But even assuming that this sometimes happened, and that West Point knew it sometimes happened, there was no evidence that this occasional and temporary condition on the premises had ever previously caused harm. There was no evidence as to how often store customers placed items on the floor while waiting in line to check out, or how long an item might be left on the floor before the customer picked it up to move forward in the line. There was no evidence that any customer at the store had ever previously tripped or fallen over an item temporarily placed on the floor by another customer waiting in the checkout line or anywhere else in the store. Even if the safety measures suggested by McDonald — warning about items temporarily placed on the floor by customers or providing convenience store customers with carts or baskets to carry items — could have reduced the risk of harm from this condition, the duty of ordinary care under OCGA § 51-3-1 did not require West Point to undertake these measures to guard against the possibility that a customer could be harmed by the condition.

Exactly what constitutes “ordinary care” varies with the circumstances and the magnitude of the danger to be guarded against. Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm. The particular standard of care to be applied and whether the owner breached that standard are usually issues to be decided by a jury. However, these issues may be decided by the court in plain and palpable cases where reasonable minds cannot differ as to the conclusion to be reached.

Decided July 2, 2015.

Hinton & Powell, A. Jack Hinton, for appellant.

Hall Booth Smith, Mark D. Maholick, Megan M. Scheller, W. Scott Henwood, for appellee.

Lau’s Corp. v. Haskins, 261 Ga. 491, 493 (405 SE2d 474) (1991) (citations and punctuation omitted). To conclude that West Point could be found negligent for failing to adopt these safety measures to attempt to eliminate or reduce the risk of injury from the condition at issue would be to impose a duty of extraordinary care, and to require that West Point ensure the safety of its customers from the remote possibility of an injury that had never previously occurred. The duty imposed under OCGA § 51-3-1 is not to exercise extraordinary care, but to exercise ordinary care to protect invitees from unreasonable risks of harm. Robinson, 268 Ga. at 740.

On the present record, we find as a matter of law that McDonald failed to produce evidence that the condition which caused her injury was a foreseeable danger or hazardous condition on the premises creating an unreasonable risk of harm. It follows that this is a plain and palpable case where reasonable minds cannot differ that West Point’s failure to protect McDonald from being harmed by the shopping item temporarily placed on the floor by a customer behind her in the checkout line did not breach the duty under OCGA § 51-3-1 to exercise ordinary care to protect an invitee from an unreasonable risk of harm. Robinson, 268 Ga. at 740; Ferguson, 303 Ga. App. at 616. Although the trial court granted summary judgment in favor of West Point for other reasons, we affirm under the right for any reason rule. OCGA § 9-11-56; City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002).

Judgment affirmed.

Branch, J., concurs. Miller, J., concurs in judgment only.

       Even if this testimony was hearsay, in the absence of any hearsay objection it will be considered as evidence. OCGA § 24-8-802.


author: Doyle, Chief Judge.

text:
    A15A0145.
    AUTO OWNERS INSURANCE COMPANY v. GAY CONSTRUCTION COMPANY.
    (774 SE2d 798)
   Doyle, Chief Judge.

Gay Construction Company (“GCC”), a general contractor, filed suit against Auto Owners Insurance Company to recover directly as an additional insured under the commercial general liability (“CGL”) policy issued by Auto Owners to Dai-Cole Waterproofing Company, Inc. (“Dai-Cole”), GCC’s subcontractor on a project. Specifically, GCC sought to recover from Auto Owners for costs associated with allegedly faulty workmanship by Dai-Cole. Auto Owners filed a motion for summary judgment, and the trial court denied the motion. Auto Owners filed an application for interlocutory review, which this Court granted. For the reasons that follow, we reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

So viewed, the record shows that GCC was the general contractor on a project involving the reconstruction of a swimming pool and associated buildings for the Piedmont Park Conservancy. As part of this project, GCC was tasked with constructing a terrace above a newly constructed restroom and other areas. GCC subcontracted the pouring of concrete for the terrace floor to Gunby Construction, and it subcontracted with Dai-Cole to install a waterproofing membrane and a drainage mat to prevent leakage into the restrooms under the terrace. In early 2009, Gunby poured the concrete bottom slab for the terrace, and Dai-Cole, or its own subcontractor, installed the waterproofing membrane and drainage mat. A certificate of occupancy was issued in May 2009.

In mid-2009, Piedmont Park officials complained that water was leaking into the space below the terrace during and after heavy rain. GCC investigated and determined that the leak was caused by an allegedly improper application of the waterproofing membrane. After unsuccessful attempts to have Dai-Cole repair the membrane, GCC performed the work. To accomplish the repair, GCC removed the terrace’s top concrete slab and drainage mat, repaired and replaced the waterproofing membrane, replaced the top concrete slab, and repaired the underside of the slab. GCC also repainted the underside of the slab to cover water stains and replaced a light fixture that was damaged as a result of the water infiltration. In all, GCC spent more than $126,000 to accomplish these repairs.

As required by GCC and the Piedmont Park Conservancy, DaiCole had obtained a CGL policy from Auto Owners. The policy provides that the term “ ‘insured’ means any person or organization qualifying as such under Section II, Who Is An Insured,” which provides:

A person or organization is an Additional Insured only with respect to liability arising out of “your work” for that Additional Insured by or for you: (1) [i]f required in a written contract or agreement; or (2) [i]f required by an oral contract or agreement only if a Certificate of Insurance was issued prior to the loss indicating that the person or organization was an Additional Insured.

The terms “ ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations.” The policy also contemplates, however, that “other persons and organizations” may “qualify[ ] as a Named Insured under this policy.”

As in the standard CGL policy, Auto Owners agreed to “pay those sums that the insured becomes legally obligated to pay as damages because of‘bodily injury’ or ‘property damage’ to which this insurance applies.” The policy provides that “[t]his insurance applies to ‘bodily injury’ and ‘property damage’ only if . . . [such] is caused by an ‘occurrence’ that takes place in the ‘coverage territory.’ ” The policy defines “property damage” as “[p]hysical injury to tangible property” or “[l]oss of use of tangible property that is not physically injured.” “Occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

The policy contains multiple business risk exclusions. One excludes “loss or damage caused by . . ..[fjaulty, inadequate[,] or defective ... [djesign, specifications, workmanship, repair, construction, [or] renovation____’’Another provision excludes “Damage to Your Work” — that is, “ ‘[property damage’ to ‘your work’ arising out of it or any part of it and included within the products-completed operations hazard.” Similarly, the policy excludes “ ‘[pjroperty damage’ to ‘impaired property’ or property that has not been physically injured arising out of . . . [a] defect, deficiency, inadequacy[,] or dangerous condition in ‘your product’ or ‘your work.’ ”

Believing itself to be an additional insured under Dai-Cole’s policy, GCC filed a first-party claim, seeking reimbursement for the costs of repairing and replacing the defective terrace. After Auto Owners ultimately denied GCC’s claim, GCC filed this lawsuit against Auto Owners, claiming breach of contract and seeking reimbursement of the monies spent repairing the faulty waterproofing, as well as attorney fees and bad faith damages pursuant to OCGA § 33-4-6. Auto Owners moved for summary judgment. The trial court denied its motion, concluding that GCC’s claim was for property damage and therefore covered by the policy. The court also determined that the claim did not fall under the policy’s business risk exclusions. In doing so, the court interpreted the business risk exclusions to encompass only the work that was tasked to Dai-Cole and expressly rejected Auto Owners’s argument that the exclusions apply to all the work that was charged to GCC. The trial court certified its order for immediate review, and this Court granted Auto Owners’s application for interlocutory appeal.

1. Auto Owners argues that the trial court erred by denying its motion for summary judgment on the grounds that (a) GCC’s claims failed to seek damages resulting from “property damage” as defined by the policy, and (b) the damages sought by GCC in its first-party claim are excluded by the business risk exclusions contained in the contract.

In Georgia,

[t]he construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.

Here, GCC filed a first-party claim seeking reimbursement of costs associated solely with the repair and correction of faulty workmanship by Dai-Cole; there was no claim for damage to nondefective property not covered by GCC’s or Dai-Cole’s scope of work. This claim is barred by the business risk exclusions in the Auto Owners policy.

Generally, “business risk exclusions of a CGL policy . .. exclude liabilities for the repair or correction of defective work from the scope of coverage.”

Georgia courts have clearly defined the risks that business-risk exclusions are intended to remove from coverage [,] . . . typically examining] the following facts of each case when reviewing business-risk exclusions: First, the type and extent of construction work that the contractor is performing at the time of the accident and, second, the extent that the damages resulting from the contractor’s accident may exceed the contractor’s contractual duties. In short, the court asks itself, “Will the payment of insurance proceeds effectively cause an insurance company to guarantee the contractor’s work?” If the answer is yes, the business-risk exclusions apply and the claim is denied. However, if the court finds that the payment of proceeds results from a negligent act causing damage above and beyond the original contractual obligations or to other property, the business-risk exclusions do not apply. . . .
Business risk exclusions are designed to exclude coverage for defective workmanship by the insured builder causing damage to the construction project itself. There are two kinds of risks that are incurred by a contractor. The first is the business risk borne by the contractor to replace or repair defective work to make the building project conform to the agreed contractual requirements. This type of risk is not covered by the [CGL] policy, and the business risk exclusions in the policy make this clear. The second is the risk that the defective or faulty workmanship will cause injury to people or damage to other property. Because of the potentially limitless liability associated with this risk, it is the type for which commercial general liability coverage is contemplated. The risk intended to be insured is the possibility that the work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the completed work itself, and for which the insured may be found liable.

Here, the claim asserted by GCC involved only corrections to and resulting repairs for faulty workmanship, which is precisely the type of claim generally barred by business risk exclusions. The only question, therefore, is whether the business risk exclusions contained in Dai-Cole’s Auto Owners policy applied to GCC’s claim in this case.

As in many CGL policies, the business risk exclusions here barred coverage for property damage to “your work.” In previous cases, this Court has looked to the general contractor’s scope of work when determining whether certain exclusions in a CGL policy apply to a general contractor’s claim against its own insurer. And when a subcontractor seeks first-party coverage under a CGL policy, courts consider the subcontractor’s scope of work. Georgia courts have not, however, considered which party’s scope of work should be considered when determining whether a business risk exclusion applies to a general contractor’s claim for first-party coverage as an additional insured under its subcontractor’s CGL policy.

Decided July 6, 2015

Kendall Law Group, Michael C. Kendall, M. Brandon Howard, for appellant.

Here, Auto Owners did not guarantee the work of Dai-Cole, and the business risk exclusions in the policy removed from coverage the defective workmanship by Dai-Cole that caused damage to the project. GCC, as the general contractor, was responsible for all work done within the scope of work which it contracted to perform for the Piedmont Park Conservancy. To limit the business risk exclusions to only that work performed by Dai-Cole would permit GCC more coverage as an additional insured than that granted to Dai-Cole as policyholder and would effectively require Auto Owners to financially guarantee Dai-Cole’s work. Further, the business risk exclusions expressly excluded property damage to the work of a named insured arising out of the work, and the policy contemplated the possibility of qualifying an additional insured as a named insured under the policy.

Under these circumstances, the business risk exclusions in the Auto Owners policy exclude coverage for GCC’s first-party claim for reimbursement for damages caused by Dai-Cole’s faulty workmanship. The trial court erred by denying summary judgment on this issue.

2. The trial court further erred by denying Auto Owners’s motion for summary judgment as to GCC’s claim for bad faith penalties and attorney fees. Under OCGA § 33-4-6, an award of attorney fees and a bad faith penalty is not authorized if the insurer had any “reasonable ground to contest the claim.” Based on our holding in Division 1, Auto Owners had a reasonable ground to contest GCC’s claim. Thus, penalties and fees under OCGA § 33-4-6 are not authorized.

Judgment reversed.

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

Seyfarth Shaw, C. Walker Ingraham, SaraM. LeClerc, for appellee.

       (Citation and punctuation omitted.) Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

       The trial court assumed and the parties assume for purposes of this appeal that GCC is an additional insured under the terms of the policy.

       “Accident” is not defined in the policy.

       GCC also named Dai-Cole as a defendant in the lawsuit, hut those claims are not at issue on appeal.

        Schwartz v. Harris Waste Mgmt. Group, 237 Ga. App. 656, 660 (2) (516 SE2d 371) (1999).

       GCC did have to repaint and repair lighting damaged by Dai-Cole’s faulty workmanship, but such repairs came within GCC’s scope of work for the entire project.

       (Punctuation omitted.) Taylor Morrison Svcs. v. HDI-Gerling America Ins. Co., 293 Ga. 456, 461-462 (1) (746 SE2d 587) (2013).

       (Punctuation omitted.) Transp. Ins. Co. v. Piedmont Constr. Group, 301 Ga. App. 17, 19 (1) (686 SE2d 824) (2009).

       (Punctuation omitted; emphasis supplied.) QBE Ins. Co. v. Couch Pipeline & Grading, 303 Ga. App. 196, 199-200 (2) (692 SE2d 795) (2010), quoting SawHorse, Inc. v. Southern Guar. Ins. Co. of Ga., 269 Ga. App. 493, 495-496 (1) (604 SE2d 541) (2004).

       See, e.g., Bituminous Cas. Corp. v. Northern Ins. Co. of New York, 249 Ga. App. 532, 533-534 (548 SE2d 495) (2001), citing Sapp v. State Farm Fire & Cas. Co., 226 Ga. App. 200, 203-204 (1) (b) (486 SE2d 71) (1997).

       See, e.g., SawHorse, 269 Ga. App. at 495 (1); Canal Indem. Co. v. Blackshear Farmers Tobacco Warehouse, 227 Ga. App. 637, 639-640 (2) (490 SE2d 129) (1997).

       In denying summary judgment to Auto Owners, the trial court relied upon Hathaway Dev. Co. v. American Empire Surplus Lines Ins. Co., 301 Ga. App. 65 (686 SE2d 855) (2009), in which this Court held that a general contractor may recover a judgment against a subcontractor from the insurance company that issued the subcontractor’s CGL policy. The trial court’s reliance is misplaced. Although the general contractor in Hathaway initially filed a direct claim against the insurance company as an additional insured, the general contractor abandoned that argument on appeal. See id. at 66, n. 1. Thus, the sole issue on appeal was whether the general contractor could recover a default judgment against the subcontractor from the subcontractor’s insurance company for defective plumbing work by the subcontractor that damaged other portions of the apartment building projects. See id. at 65-66. A general contractor’s first-party claims against an insurance company as an additional insured are not equivalent to a general contractor’s claims as a judgment creditor against its debtor’s insurer.

       See Taylor Morrison Svcs., 293 Ga. at 461-462 (1). See also SawHorse, 269 Ga. App. at 496-497 (1) (a); Sapp, 226 Ga. App. at 203-204 (1) (b).

       (Punctuation omitted.) Grange Mut. Cas. Co. v. Law, 223 Ga. App. 748, 750 (2) (479 SE2d 357) (1996).