text:
    A11A2227.
    WRIGHT et al. v. APARTMENT INVESTMENT AND MANAGEMENT COMPANY et al.
    (726 SE2d 779)
   Miller, Judge.

Apartment Investment and Management Company (“AIMCO”) and OP Property Management, LLC (“OP Property Management”), (collectively, the “AIMCO Group”), sued Garland Calvin Wright, Stephanie Wright, and S&D Associates, LLC (collectively, “Appellants”), claiming that Mr. Wright committed fraud in breach of his fiduciary duty to the AIMCO Group, and that Mrs. Wright and S&D Associates conspired in the fraud. After a trial, the jury returned a verdict in favor of the AIMCO Group. Appellants moved for judgment notwithstanding the verdict (“j .n.o.v.”) or, in the alternative, for a new trial. The trial court denied those motions, and this appeal followed. For the reasons discussed below, we affirm the judgment in favor of AIMCO and reverse the judgment in favor of OP Property Management.

“In reviewing the denial of a... motion for a j.n.o.v., or motion for new trial, this Court must affirm if there is any evidence to support the jury’s verdict, and in making this determination, we must construe the evidence in the light most favorable to the prevailing party.” (Citations and punctuation omitted.) Ferman v. Bailey, 292 Ga. App. 288,290 (2) (664 SE2d285) (2008); Signsation, Inc. v. Harper, 218 Ga. App. 141, 142 (2) (460 SE2d 854) (1995) (“[T]he determinative question is not whether the verdict and the judgment of the trial were merely authorized, but is whether a contrary judgment was demanded.”) (citations and punctuation omitted).

Viewing the record in the light most favorable to Appellants, the evidence shows that from September 2005 until January 2007, Mr. Wright was employed as AIMCO’s Senior Director of Construction Services, serving as the on-site manager for three multimillion dollar apartment complexes — the Falls of Bells Ferry, Rivercrest, and Knollwood — in Georgia and Tennessee. AIMCO owned and constructed apartment complexes throughout the United States. Because of the volume of properties owned by AIMCO, AIMCO created single-purpose entities —Ambassador IV, LLP; Rivercrest, LLP; and Knoll-wood, LLP — to serve as the beneficial owners of the three respective apartment complexes. OP Property Management, a wholly-owned subsidiary of AIMCO, managed these properties on AIMCO’s behalf. As Senior Director of Construction Services, Mr. Wright was designated as the “owner’s representative,” which included the beneficial owner and OP Property Management.

Since AIMCO had a large number of projects across the country, Mr. Wright, as the Senior Director of Construction Services, was given a great deal of autonomy and authority in managing millions of dollars on AIMCO’s behalf. In his duties, Mr. Wright interfaced with general contractors, prepared contracts, solicited and reviewed bids for AIMCO’s projects, and recommended to AIMCO which general contractor should be awarded a particular contract. AIMCO also relied on Mr. Wright’s review and approval of general contractor’s applications for payment, which required him to inspect and verify the work performed at the three construction projects. Additionally, as the AIMCO Group representative, Mr. Wright was authorized in non-emergency situations to approve changes in scope of work contract documents, scheduling, and costs.

During his solicitation for bids on the Falls of Bells Ferry project, Mr. Wright introduced SHEP Services — a construction company owned by Shepard — to AIMCO. Mr. Wright recommended that AIMCO award SHEP Services a contract on the Falls of Bells Ferry project, and later on the Rivercrest and Knollwood projects as well. Based on Mr. Wright’s recommendations, AIMCO awarded over $15.5 million in contracts to SHEP Services to serve as the general contractor on the Falls of Bells Ferry, Rivercrest, and Knollwood projects.

In 2007, Shepard notified AIMCO officials that it had made weekly or bi-weekly cash payments to Mr. Wright as part of a kickback scheme. Shepard met with AIMCO’s investigative director, who testified at trial. The investigator prepared a declaration that Shepard signed (“Shepard’s Declaration”), which described the kickback scheme and Appellants’ involvement in it.

AIMCO subsequently initiated an investigation, reviewed Mr. Wright’s bank accounts, and discovered a high frequency of large cash deposits into bank accounts shared by Mr. and Mrs. Wright. Many of the cash deposits occurred on the same day, all in amounts of less than $10,000. Although Mr. Wright earned a $95,000 salary from AIMCO and earned approximately $40,000 per year from S&D Associates, he deposited the following amounts in his account: $41,470 between February and March 2006; $122,200 between May and June 2006; $62,097 between September and October 2006; and $688,116 between April and May 2007. On one occasion, Mrs. Wright withdrew $55,000 from the shared bank account. Additionally, shortly after Shepard issued a $100,000 check to S&D Associates — a company owned by Mr. and Mrs. Wright — Mr. Wright purchased a Porsche sports car, issuing an S&D Associates check in the amount of $70,597.

Mr. Wright admitted that prior to his AIMCO employment, he had lived in a house purchased for $190,000. During his subsequent AIMCO employment, he and his wife bought beach property in July 2006, paying a monthly mortgage of approximately $3,000. They also purchased a $940,000 house in January 2007, paying a monthly mortgage of approximately $5,000. S&D Associates had an interest in the beach property. Additionally, Mr. Wright bought a significant amount of fine jewelry for himself and his wife.

In the course of its investigation, AIMCO discovered that after it paid SHEP Services as the general contractor, SHEP Services had not paid its subcontractors and suppliers. The unpaid subcontractors filed mechanic’s liens and lawsuits against the three apartment projects. AIMCO paid approximately $2.13 million to resolve the subcontractors’ claims.

The AIMCO Group subsequently filed suit against Appellants, Shepard, and SHEP Services, and the case against those defendants proceeded to a joint trial. Following the presentation of evidence, the jury returned a verdict in favor of the AIMCO Group on its breach of fiduciary duty and fraud claims and awarded it general damages ($2.13 million), attorney fees and costs ($500,000), and punitive damages ($75,000). The trial court entered a judgment upon the jury’s verdict. Thereafter, Appellants filed a motion for j.n.o.v., or in the alternative, for new trial or for remittitur. The trial court denied the motions, and this appeal followed.

1. Appellants contend that the trial court erred in denying their motion for j.n.o.v., arguing that the AIMCO Group lacked standing to recover damages and failed to substantiate its damages with credible evidence.

(a) Appellants contend that OP Property Management was not entitled to recover any damages because it was merely a “pass-through” entity that suffered no loss of its own. We agree.

There is no evidence that OP Property Management incurred any losses as a result of the kickback scheme. Significantly, the evidence shows that OP Property Management did not pay any money of its own to fund the three construction sites. Rather, OP Property Management would receive a fee for managing the AIMCO’s construction projects, which OP Property Management received in this case. There was no evidence that it suffered any losses or was otherwise damaged by any breach of duty or fraud. Since OP Property Management did not present evidence to establish its own damages as a result of any breach of a fiduciary duty or fraud, it did not have a cause of action against Appellants. Cf. Nash v. Studdard, 294 Ga. App. 845, 848 (1), 850 (2) (a) (670 SE2d 508) (2008) (holding that plaintiff had no causes of action for fraud and breach of fiduciary duty since plaintiff failed to establish actual damages resulting from fraud or breach). Therefore, the trial court erred in denying Appellants’ motion for j.n.o.v. as to OP Property Management. Accordingly, we reverse the portion of the judgment awarding OP Property Management recovery against Appellants.

(b) Appellants also contend that since AIMCO was not a contracting party on the three construction projects, it was not entitled to recover for any damages as result of the kickback scheme. Their arguments are misplaced.

Whether AIMCO was a party to the three contracts was not relevant to the claims asserted by AIMCO, because its claims — breach of fiduciary duty and fraud — lie in tort, not contract. See OCGA § 51-1-1 (“A tort is the unlawful violation of a private legal right other than a mere breach of contract, express or implied”). As shown below, AIMCO established that Mr. Wright owed it a fiduciary duty, that he breached such duty, and that AIMCO suffered damages thereby.

(c) Appellants also contend that the losses claimed by AIMCO were too speculative to be awarded as damages. We disagree.

[T]he rule against recovery of speculative damages relates primarily to speculation regarding proximate cause rather than extent. Once a plaintiff establishes that damages proximately flow from the defendant’s alleged conduct, mere difficulty in fixing their exact amount should not be a legal obstacle to recovery.

(Citations and punctuation omitted.) Freeman v. Pittman, 220 Ga. App. 672, 674 (2) (469 SE2d 543) (1996). “[I]f a plaintiff can show with reasonable certainty the total amount of damages and the degree to which those damages are attributable to defendant, that is sufficient to support an award.” CRS Sirrine, Inc. v. Dravo Corp., 219 Ga. App. 301, 303 (1) (464 SE2d 897) (1995).

Here, the jury returned a total verdict of $2,705 million, including $465,000 in damages awarded to AIMCO apportioned among the Appellants. At trial, AIMCO’s in-house counsel testified at length that AIMCO had to pay a total of approximately $2.13 million to settle the claims of subcontractors who were not paid by Shepard when he diverted money to Appellants in the kickback scheme. AIMCO’s in-house counsel testified that he had personal knowledge of the amounts paid, because he was the person primarily responsible for resolving the subcontractors’ demand letters, mechanic’s liens, and lawsuits.

While Appellants contend that the damages were not apportioned to them according to their respective culpability and did not directly correspond to any specific evidence in the record, their argument is unsupported by law and is otherwise without merit. “Indeed, we have often upheld jury verdicts that awarded less than the amount proven at trial, holding only that the amount must be within the range of damages shown,” not that the amount may only be a lesser amount if calculated according to some proven formula. (Footnote omitted.) Gold Kist v. BaseMfg., Inc., 289 Ga. App. 690, 693 (1) (658 SE2d 228) (2008). Based on the foregoing evidence, the jury-had a sufficient basis to allow a reasonable calculation of damages against Appellants. See id. at 693-694 (the amount of the jury verdict will be upheld if it is within the range of damages shown); City of Atlanta v. WH Smith Airport Svcs., 290 Ga. App. 206, 210 (4) (659 SE2d 426) (2008) (“Where the amount of a verdict is within the range of testimony it will not be disturbed on appeal.”) (citation omitted); see also Royalston v. Middlebrooks, 303 Ga. App. 887, 893 (5) (696 SE2d 66) (2010) (In arriving at how to express the different degrees of culpability of joint tortfeasors “in mathematical terms, the jury was not bound by any specific formula; instead, the matter was to be determined according to the enlightened conscience of the fair and impartial jury”) (punctuation and footnote omitted).

2. Appellants contend that the trial court erred in denying their motion for j.n.o.v., arguing that AIMCO failed to prove that Appellants owed them a duty. Appellants’ contention is without merit.

(a) Mr. Wright’s Duty

A fiduciary or confidential relationship arises
where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.

OCGA § 23-2-58. Such relationship may be created by law, contract, or the facts of a particular case. See Bienert, supra, 276 Ga. App. at 624 (2) (a).

Moreover, since “a confidential relationship may be found whenever one party is justified in reposing confidence in another, the existence of a confidential or fiduciary relationship is generally a factual matter for the jury to resolve.” (Citations and footnote omitted.) Id. Where an agency relationship exists, the agent has a fiduciary duty to his principal. See Nilan’s Alley v. Ginsburg, 208 Ga. App. 145 (1) (430 SE2d 368) (1993).

Here, the trial evidence supports the conclusion that a fiduciary relationship arose between Mr. Wright and AIMCO. The record shows Mr. Wright solicited and reviewed bids on AIMCO’s behalf and was tasked with making recommendations on such bids. See, e.g., Nilan’s Alley, supra, 208 Ga. App. at 145 (1) (employee had fiduciary obligation to employer where he was employer’s agent for soliciting offers to purchase employer’s products). Additionally, Mr. Wright reviewed applications for payment to verify the work accomplished, and AIMCO relied on his approval to pay SHEP Services. Cf. Benson v. McMillan, 261 Ga. App. 78, 82 (1) (581 SE2d 707) (2003) (evidence established a confidential relationship when employer entrusted employee with significant financial responsibility and authority).

Moreover, as the designated representative for companies owned by AIMCO — the three single-purpose entities and OP Property Management — Mr. Wright was given the authority to approve changes in scope of work, contract documents, scheduling, and costs. See OCGA § 10-6-1 (“The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him[.]”); see also Hanson Staple Co. v. Eckelberry, 297 Ga. App. 356, 358 (1) (677 SE2d 321) (2009) (to the extent the employer authorizes an employee to act on its behalf, the employee is the employer’s agent). Contrary to Mr. Wright’s contention, even if AIMCO did not actually execute any contract change orders that he signed, he was still given the authority to approve contract changes, which would have bound AIMCO to pay for work done pursuant to approved change orders. Under these facts, the jury was authorized to find that Mr. Wright was an agent of AIMCO and owed fiduciary obligations to it. See Sitton v. Print Direction, Inc., 312 Ga. App. 365, 372 (5) (718 SE2d 532) (2011) (evidence that employee had the authority to solicit business on employer’s behalf and to bind employer for certain obligations authorized finding that employee owed fiduciary duty to employer); Hilb, Rogal & Hamilton Co. &c. v. Holley, 295 Ga. App. 54, 58 (2) (670 SE2d 874) (2008) (same).

Since there was evidence establishing the existence of Mr. Wright’s fiduciary duty to AIMCO, he had a duty to AIMCO to refrain from participating in the fraud and to disclose the existence of the kickback scheme. See Goldston v. Bank of America Corp., 259 Ga. App. 690, 696 (577 SE2d 864) (2003) (“[A] fiduciary relationship encompasses a duty to disclose so that suppression of a material fact which a party is under an obligation to communicate constitutes fraud.”) (punctuation, footnote and emphasis omitted); OCGA § 23-2-53 (“Suppression of a material fact which a party is under obligation to communicate constitutes fraud.”).

(b) Duty Owed by Mrs. Wright and S&D Associates

Mrs. Wright and S&D Associates contend that, since they had no fiduciary obligation to AIMCO, they could not be liable for breach of a fiduciary duty or for failing to disclose the kickback scheme. Their argument is misplaced. AIMCO’s claims against Mrs. Wright and S&D Associates were not based on an independent duty owed to AIMCO, but were based on allegations that they aided, abetted, and conspired in Mr. Wright’s fraud and breach of his fiduciary duty. As discussed in Division 3 below, the evidence was sufficient to show that they were liable for aiding and abetting and conspiring with Mr. Wright.

3. Appellants also contend that the trial court should have granted their motion for new trial for the same reasons it urges that the trial court should have granted their motion for j.n.o.v. We disagree.

(a) Claims Against Mr. Wright

(i) Breach of Fiduciary Duty

To support a claim of breach of fiduciary duty, a plaintiff must prove the existence of such duty, breach of that duty, and damages proximately caused by the breach. Bienert, supra, 276 Ga. App. at 623. When a fiduciary relationship exists, the agent may not make a profit for himself out of the relationship to the injury of the principal. See White v. Shamrock Bldg. Systems, 294 Ga. App. 340, 346 (4) (669 SE2d 168) (2008).

As previously discussed, there was evidence to establish Mr. Wright’s fiduciary duty, and AIMCO presented further evidence to establish Mr. Wright’s breach of this duty. Notably, the trial evidence shows that Mr. Wright used his position as Senior Director of Construction Services to profit from a fraudulent kickback scheme to his own advantage and to the detriment of AIMCO. Cf. Bienert, supra, 276 Ga. App. at 625 (2) (b) (defendant breached her fiduciary duty as the plaintiff’s representative when she profited from her misconduct to the detriment of the plaintiff); Benson, supra, 261 Ga. App. at 81-82 (1) (defendant’s misconduct as plaintiff’s representative that caused plaintiff significant expenses was sufficient to establish breach of a fiduciary duty).

(ii) Fraud

In order to establish a claim of fraud under Georgia law, a plaintiff must prove “(1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff.” (Citations and punctuation omitted.) Pyle v. City of Cedar-town, 240 Ga. App. 445, 447 (1) (524 SE2d 7) (1999). When a fiduciary relationship has been established, “silence when one should speak, or failure to disclose what ought to be disclosed, is as much a fraud in law as is an actual false representation.” (Punctuation and footnote omitted.) Goldston, supra, 259 Ga. App. at 694.

The trial evidence authorized the jury’s verdict that Mr. Wright defrauded AIMCO. Given that Mr. Wright owed a fiduciary duty to AIMCO, Mr. Wright had a duty to disclose and refrain from participating in the kickback scheme. See, e.g., Spratlin, Harrington & Thomas, Inc. v. Hawn, 116 Ga. App. 175, 181-182 (2) (156 SE2d 402) (1967) (an agent defrauded principal by failing to disclose material facts that resulted in profit to agent); Larkins v. Boyd, 205 Ga. 69, 73 (1) (52 SE2d 307) (1949) (agent committed fraud by profiting from agency relationship to detriment of principal and also by failing to disclose all pertinent facts that jeopardized the principal’s interests). Significantly, AIMCO relied on Mr. Wright’s review and approval of the general contractor’s applications for payment, which included a certification that Shepard had paid his subcontractors. During the time Mr. Wright approved Shepard’s applications for payment, he was receiving frequent and routine cash payments from Shepard. In light of this evidence, the jury was authorized to conclude that Mr. Wright approved Shepard’s applications for his own benefit as part of the kickback scheme, resulting in over $2.13 million in damages to AIMCO.

(b) Claims against Mrs. Wright and S&D Associates

AIMCO’s claims against Mrs. Wright and S&D Associates were that they aided and abetted Mr. Wright’s breach of his fiduciary duty and conspired with Mr. Wright to defraud AIMCO.

“To recover damages for a civil conspiracy claim, a plaintiff must show that two or more persons, acting in concert, engaged in conduct that constitutes a tort.” (Citation and punctuation omitted.) Mustaqeem-Graydon v. Sun Trust Bank, 258 Ga. App. 200, 207 (6) (573 SE2d 455) (2002).

Civil conspiracy is an act which is by its very nature covert and clandestine, and usually not susceptible of proof by direct evidence. Concert of action, amounting to conspiracy, may be shown by circumstantial as well as direct evidence. It is not necessary to prove an express agreement or compact among the wrongdoers; their common design maybe inferred from the nature of the acts done, the relation between them, their mutual interests in the matter, and other circumstances.

(Citations and punctuation omitted.) First Federal Savings Bank v. Hart, 185 Ga. App. 304, 305 (2) (363 SE2d 832) (1987). Once a conspiracy is proven, any actionable deed by one of the conspirators is chargeable to all. See Turnage v. Kasper, 307 Ga. App. 172, 179 (1) (a) (704 SE2d 842) (2010).

A plaintiff may recover for aiding and abetting breach of fiduciary duty upon proof of the following elements:

(1) through improper action or wrongful conduct and without privilege, the defendant acted to procure [] a breach of the primary wrongdoer’s fiduciary duty to the plaintiff; (2) with knowledge that the primary wrongdoer owed the plaintiff a fiduciary duty, the defendant acted purposely and with malice and the intent to injure; [] (3) the defendant’s wrongful conduct procured a breach of the primary wrongdoer’s fiduciary duty; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff.

(Citations and footnotes omitted.) Insight Tech., supra, 280 Ga. App. at 25-26 (1) (a).

The evidence in this case was sufficient to support a finding that Mrs. Wright and S&D Associates acted in concert with and aided and abetted Mr. Wright’s fraud and breach of his fiduciary duty. Significantly, Mrs. Wright was present on at least two occasions when Shepard delivered money to Mr. Wright. She was a joint owner of the bank account used by Mr. Wright to deposit and transfer large sums of cash, and she personally withdrew large amounts of money from that account. When confronted with AIMCO’s notice to produce all documents showing the source of the many cash deposits, Mrs. Wright confirmed that she had produced nothing. As to S&D Associates, which Mrs. Wright owned with Mr. Wright, Mr. Wright deposited Shepard’s $ 100,000 check into S&D Associates’ bank account and then purchased a Porsche car using S&D Associates’ bank account. Based on Mrs. Wright’s relationship with Mr. Wright, the fact that they owned S&D Associates together, and the Wrights’ substantial purchases — a $940,000 house, a beach property, a Porsche sports car, and fine jewelry — during the time of the kickback scheme, the jury was authorized to conclude that Mrs. Wright and S&D Associates acted in concert with and aided and abetted Mr. Wright’s fraud. Cf. McIntee v. Deramus, 313 Ga. App. 653 (722 SE2d 377) (2012) folding that the evidence supported the jury’s finding of a civil conspiracy for conversion of plaintiff’s investment because two LLC shareholders both had access to the investment account, they transferred the investment money to their LLC corporate account, and they disbursed corporate funds to one LLC member without the knowledge or permission of plaintiff); Prescott v. Carithers, 158 Ga. App. 366, 368 (1) (280 SE2d 361) (1981) (“Where transactions between relatives are under review, slight circumstances are often sufficient to induce belief on the part of a jury that there was fraud or collusion between the parties.”) (citations and punctuation omitted). As there was slight evidence to support the verdict, the trial court did not err in denying Appellants’ motion for new trial with respect to AIMCO’s claims.

4. Appellants contend that the trial court erred by admitting into evidence Shepard’s Declaration and allowing AIMCO’s investigator and in-house counsel to testify. We disagree.

(a) Appellants assert that Shepard’s Declaration and the investigator’s testimony regarding Shepard’s statements were inadmissible hearsay.

In addition to suing Appellants, AIMCO also sued Shepard and SHEP Services, and all defendants went to trial together. At trial, Appellants objected to the investigator’s testimony regarding his interview of Shepard and to the admissibility of Shepard’s written statement on hearsay grounds. The trial court admitted the testimony and the declaration over Appellants’ objection. Appellants did not request a limiting instruction.

[Ujnder OCGA § 24-3-31, the admission by a party is generally admissible when offered by the other side. One exception to this rule is that the admission of one of several parties with no joint interest is inadmissible “unless the issue is of such a character that the effect of the admission can be confined to the one party alone.” OCGA § 24-3-31 (2). .. .
It is true that the admissions of one defendant cannot be considered as evidence against another co-defendant. [However,] [t]his merely means that when one defendant admits wrongful conduct, the conduct is not imputed to the co-defendant by virtue of the admission. But the admission may still be used to establish the admitting defendant’s conduct even if the admission ultimately works to the detriment of the non-admitting defendant.

Decided March 29, 2012

Reconsideration denied April 12, 2012

Taylor, English & Duma, Joseph C. Sullivan, Louis R. Cohan, for appellants.

McConnell, Sneed & Cohen, Robert M. Sneed, Jr., for appellees.

(Citations and punctuation omitted.) Walker v. Aderhold Properties, 303 Ga. App. 710, 715 (2) (694 SE2d 119) (2010); see also KHD Deutz of America Corp. v. Utica Mut. Ins. Co., 220 Ga. App. 194, 197 (3) (469 SE2d 336) (1996).

In other words, the investigator’s testimony and Shepard’s Declaration were admissible solely to demonstrate Shepard’s participation in the kickback scheme, and the fact that this evidence may have contributed to an ultimate finding of liability on the part of the Appellants does not alter this result. Walker, supra, 303 Ga. App. at 715 (2). Since the investigator’s testimony and Shepard’s declaration were admissible as to Shepard in the joint trial, the court did not err in admitting them. Id. Moreover, contrary to Appellants’ claim otherwise, the trial court did not err in failing to instruct the jury to limit its consideration of the evidence only as to Shepard’s liability, because Appellants did not request such instruction. See Johnson v. Sullivan, 247 Ga. 663, 665 (2) (278 SE2d 640) (1981).

(b) Appellants also contend that the trial court erred by allowing AIMCO’s in-house counsel to testify regarding AIMCO’s damages, claiming that such testimony violated the “best evidence” rule and was subject to speculation or conjecture. However, Appellants waived these issues by failing to interpose a timely contemporaneous objection when the challenged testimony was presented in court. See Humphrey v. Homecomings Financial, LLC, 304 Ga. App. 83 (1) (695 SE2d 322) (2010) (“In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground.”) (footnote omitted).

Judgment affirmed in part and reversed in part.

Ellington, C. J., and Doyle, P. J., concur.

       The AIMCO Group also named other defendants who are not parties on appeal.

       The AIMCO Group also asserted a claim of interference with contractual relations against Appellants, but this claim was dismissed on partial summary judgment.

       The trial court took judicial notice that financial institutions are required to report deposits of cash in excess of $10,000.

       Shepard and SHEP Services are not parties to this appeal.

       The jury assessed general damages of $630,000, attorney fees and costs in the amount of $250,000, and $50,000 in punitive damages against Appellants.

       Inasmuch as OP Property Management had no tort claim for breach of fiduciary duty or fraud that survived, its derivative claims for punitive damages and attorney fees also failed. Cf. ULQ, LLC v. Meder, 293 Ga. App. 176, 182 (4) (666 SE2d 713) (2008).

       The word “procure” . . . does not require the lending of assistance in the actual perpetration of the wrong done by another; but if one, acting only through advice, counsel, persuasion, or command, succeeds in procuring any person to commit an actionable wrong, the procurer becomes liable for the injury, either singly or jointly, with the actual perpetrator.
      (Citation and punctuation omitted.) Insight Tech., Inc. v. FreightCheck, LLC, 280 Ga. App. 19, 25 (1) (a), n. 12 (633 SE2d 373) (2006).

       An act is malicious when done with the knowledge of plaintiff’s rights and with intent to interfere therewith. Persuading a person to break a contract for the indirect purpose of injuring the plaintiff or henefitting the defendant at the expense of the plaintiff is a malicious and actionable act if injury arises from it. See Insight Tech., supra, 280 Ga. App. at 25 (1) (a), n. 13.

       “The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall he satisfactorily accounted for.” OCGA § 24-5-4 (a).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A11A2228.
    A11A2229.
    HUGGINS v. POWELL et al. CALLOWAY TITLE & ESCROW, LLC v. HUGGINS.
    (726 SE2d 730)
   PHIPPS, Presiding Judge.

Dorothy Huggins, individually and as administrator of an estate, filed suit against several individuals and corporations to recover certain real property which she contended belonged to the estate and had been fraudulently conveyed. Huggins also claimed she held a lien against the property and asserted that recovery of the property was necessary to pay debts of the insolvent estate, including her lien — which also, she alleged, may be satisfied by levy.

Three groups of defendants moved for summary judgment, and the trial court issued three separate orders — one in connection with the Hilltop defendants, one in connection with the J & Adefendants, and one in connection with Calloway Title & Escrow, LLC. Finding that, among other things, the statute of limitation had expired, the trial court granted summary judgment to the Hilltop defendants; it denied summary judgment to Calloway, due to its failure to timely respond to requests for admissions which consequently were deemed admitted by operation of law and negatively impacted Calloway’s standing on substantive fraud claims. As to the J & A defendants, the trial court granted summary judgment on various grounds, including the insufficiency of the evidence.

Huggins appeals the grant of summary judgment to the Hilltop defendants and the J & A defendants in Case No. A11A2228. And Calloway appeals the denial of his motion for summary judgment in Case No. A11A2229.

Because we agree that the evidence was insufficient to show a fraudulent conveyance by the J & A defendants, we affirm the grant of summary judgment to the J & A defendants (for the fraudulent conveyance claims) in Case No. A11A2228. Because the statute of limitation had expired, suit on the fraudulent conveyance claims was barred as to the Hilltop defendants and Calloway. Therefore, we affirm the trial court’s grant of summary judgment to the Hilltop defendants (for the fraudulent conveyance claims) in Case No. A11A2228 and reverse the trial court’s denial of summary judgment to Calloway in Case No. A11A2229. Because Huggins’s individual claim for levy is a matter for a jury to determine, we reverse the trial court’s grant of summary judgment to the defendants on that claim in Case No. A11A2228.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.”

This is the second appearance of this case before this court. On the first appearance, we reviewed the decision of a probate court which, on February 26,2007, denied Huggins’s petition which was “in form and substance a leave to sell” real property of the estate. We affirmed the probate court’s denial of a motion for new trial because of Huggins’s failure, pursuant to the applicable statute, to satisfy the requisite notice provisions.

The matter presently before this court for review is a superior court action wherein Huggins contended that the chain of title and conveyances of the property at issue were as follows. Vernon H. Powell died intestate on April 28, 1996. Upon his death, Powell owned an undivided 20 percent interest in certain real property. On June 1, 2000, Powell’s heirs at law conveyed their interest in the property by warranty deeds to Hilltop Land Company, LLC. On November 1, 2001 and December 31, 2001, Hilltop Land Company conveyed the property to Harris Hilltop, LLC and Brannan Hilltop, LLC. On January 3, 2006, Harris Hilltop and Brannan Hilltop conveyed the property to Double Feature, LLC, High Cotton Properties, LLC, and Turning the Tide, LLC, which on November 14, 2006, conveyed the property to J & A Group, Inc. Huggins contended that despite knowing about her lien on the property, Calloway Title & Escrow, LLC “issued title insurance policies [to Hilltop Land Company] omitting any reference to the known judgment lien[ ] against the estate of” the decedent. On January 31, 2007, the probate court appointed Huggins as administrator of Vernon Powell’s estate.

On May 30, 2007, Huggins filed a complaint to recover the property and alleged, among other things:

None of the Decedent’s Heirs at law, or any party dealing with the hereinafter described Property subsequent to the death of the Decedent, has ever notified the known judgment creditors of Decedent’s Estate, as to any of the following: (1) the death of Decedent, (2) the attempt by Decedent’s heirs at Law, to dispense with Administration of the unrepresented Estate without paying the debts ofthe Estate, (3) the attempted conveyance ofthe property ofthe Estate by Decedent’s Heirs at Law, without first paying the debts ofthe Estate, or (4) the attempt to convey the property of the Estate without paying the liens appearing of record in the chain of title [sic] to the property.

1. Contending that she had a vested right to application of a seven-year statute of limitation in effect prior to the enactment of OCGA § 18-2-79, effective July 1, 2002, which provides a four-year statute of limitation (for actions involving the fraudulent conveyance of real property), Huggins argues that application of the four-year statute of limitation to her case violates the constitutional prohibition against retroactive laws. Although we agree that the substantive law at the time of the occurrence giving rise to the suit applies, we do not agree that the procedural law at the time of the occurrence is applicable.

In support of her contention, Huggins points to Bank of Norman Park v. Colquitt County for the proposition that “[l]aws prescribe only for the future. Retrospective statutes are forbidden by the first principles of justice. The settled rule for the construction of statutes is not to give them retrospective operation, unless the language so imperatively requires.” But that proposition does not apply to this case, as the law that changed in that case was substantive; it comprised “an essential element of the obligation of the contract,” concerning the priority of payment of claims against an insolvent bank. The law applicable to this case is that

(w)here a statute governs only procedure of the courts,... it is to be given retroactive effect absent an expressed contrary intention. . . . The presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the courts, even where the alteration which the statutes make has been disadvantageous to one of the parties.

“Statutes of limitation look only to the remedy and so are procedural.” “Where the new statute of limitation is in effect at the time the action was filed, there is no question of retroactivity... ,” “There is no vested right in a statute of limitation. . . ,” “Georgia statutes addressing procedural and remedial rights may be retroactively applied.”

In Atlanta Country Club v. Smith, an expelled country club member filed suit for an injunction and damages, under claims for tort and breach of contract, for his alleged wrongful expulsion from the club. He commenced his initial suit, which carried four- and six-year statutes of limitation, the same year he was expelled, but soon thereafter he dismissed the case. Three years and eleven months later, he refiled suit. But between the time he had dismissed his prior suit and the time he recommenced the action, a new statute of limitation was enacted, which provided: “Any proceeding challenging an expulsion, suspension, or termination, including a proceeding in which defective notice is alleged, must be commenced within one year after the effective date of the expulsion, suspension or termination.” We held that “[bjecause a plaintiff has no vested right in a statute of limitation which existed at the time of his alleged injury, as against a newly enacted limitation... he does not acquire one merely by virtue of having once filed a suit within the statute of limitation and dismissed it.” The newly enacted one-year statute of limitation applied, and because the plaintiff refiled suit three years and eleven months after he was expelled from the country club, long after the new statute was enacted making the statute of limitation one year, the suit was barred.

Prior to the 2002 enactment of the Uniform Fraudulent Transfers Act (UFTA), when fraud in the procurement of title to land was claimed, it was so claimed under OCGA § 18-2-22 and the applicable statute of limitation within which to commence an action was seven years after discovery of fraud. Under the UFTA, it is four years after the transfer was made or the obligation was incurred (or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant). Here, Huggins contended that the first alleged fraudulent transfer of the property occurred in June 2000, when Calloway issued title insurance to Hilltop Land Company for the purchase of the property. At that time, the statute of limitation was seven years. When Huggins filed suit nearly seven years later, in May 2007, however, the newly enacted statute of limitation (under UFTA) had already been in effect for approximately three years. Consequently, the trial court ruled properly that the claims for fraudulent conveyance in Huggins’s suit were time-barred.

The evidence showed that Huggins also failed to avail herself of the one-year statute of limitation effective upon discovery of the alleged fraud. Huggins admitted that as early as November 14, 2005, she was aware of alleged fraudulent conveyance of the property and at that time, her attorney wrote a letter to Brannan, in his capacity as registered agent for Hilltop Land Company, Harris Hilltop LLC, and Brannan Hilltop LLC, to notify those parties of her lien against the property. Still, Huggins failed to file suit by November 14, 2006.

Accordingly, there being no genuine issue as to any material fact and the moving party being entitled to a judgment as a matter of law, the trial court properly granted summary judgment to the Hilltop defendants on Huggins’s claims for fraudulent conveyance, in Case No. A11A2228. Because the fraudulent conveyance claims were barred by the statute of limitation, Calloway’s failure to respond to Huggins’s requests for admissions was of no consequence, and the trial court’s denial of summary judgment to Calloway, in Case No. A11A2229, is reversed.

Because the Hilltop defendants and Calloway were entitled to summary judgment on statute of limitation grounds, we need not address the trial court’s ruling on the merits of Huggins’s fraudulent conveyance claims.

2. Concerning any claim for fraudulent conveyance of the property by the J &Adefendants, Huggins asserted none. Rather, as to the J&Adefendants, Huggins alleged that J&Aheld title to the property at the time suit was filed and claimed merely that she was entitled to recover the property from J & A and to set aside the lien held by BB & T. As to Double Feature, LLC, High Cotton Properties, LLC, and Turning the Tide, LLC, in her amended complaint, Huggins acknowledged that these parties denied any knowledge of her lien on the property at the time they purchased it in January 2006 and that, therefore:

Absent any testimony to the contrary, it must be concluded that prior to the conveyance, no one disclosed the existence of the Writ, as constituting a lien on the Property, to: (1) the closing attorney... or (2) purchasers Double Feature, LLC, High Cotton Properties, LLC and/or Turning the Tide, LLC, despite the following parties’ knowledge and affirmative duty to disclose the existence of the Writ, as constituting a lien on the Property: 1. Attorney T. Daniel Brannan 2. Dr. Thomas A. Harris, MD.

Consequently, based on the allegations of Huggins’s complaint, no cause of action was asserted for fraudulent conveyance of the property by the J & A defendants. And Huggins points to no evidence giving rise to a fraudulent conveyance cause of action against the J & A defendants. Notwithstanding the trial court ruled for reasons different than herein stated that the evidence was insufficient to show a fraudulent conveyance, there being no genuine issue as to any material fact and the moving party being entitled to a judgment as a matter of law, the trial court properly granted summary judgment to the J & A defendants concerning the alleged fraudulent conveyance of the property, in Case No. A11A2228.

3. Huggins contends the trial court erred in granting summary judgment to the Hilltop defendants and the J & A defendants on the claims she brought in her individual capacity as a judgment creditor of the deceased, seeking to levy on the property. We agree.

OCGA § 9-12-93 provides:

When any person has bona fide and for a valuable consideration purchased real or personal property and has been in the possession of the real property for four years or of the personal property for two years, such property shall be discharged from the lien of any judgment against the person from whom it was purchased or against any predecessor in title of real or personal property. Nothing contained herein shall be construed to otherwise affect the validity or enforceability of such judgment, except to discharge such property from any such lien of judgment.

“[A] purchaser seeking the benefit and protection of the statute must prove three things: (1) that he acted in good faith; (2) that he paid a valuable consideration; and (3), in cases involving realty, that he has been in possession for four years.”

The fact that a purchaser had knowledge of [a] judgment against his vendor does not constitute the purchaser a wrong-doer; he is, notwithstanding this knowledge alone, a bona fide purchaser. Yet we think that this may be looked to, in connection with other facts, in determining whether the purchase be bona fide or not.... [K]nowledge on the part of the purchaser is only a circumstance for the consideration of the jury, in connection with all the other evidence in the case, in determining whether or not the purchaser acted in good faith when he bought the property.

The burden of proof is placed upon the purchaser to prove good faith, “but it does not encumber him with the further burden of making this proof while bearing a badge of fraud solely because he purchased with knowledge of the existence of the lien.”

Huggins alleged that she obtained a lien on the property “by virtue of being the true and lawful holder of the Writ of Fieri Facias... against [decedent] issued June 2, 1981. . . .” The writ, Huggins contended, had been assigned to her by the original holder. A prior attempt to transfer the property, subject to the writ, had been set aside. The Hilltop defendants argue that although “Hilltop Land was on notice of the existence of the Set Aside Judgment at the time it purchased the [property], Hilltop Land was unable to get any information from [decedent’s] heirs regarding any debt owed by [decedent],” and thus the trial court ruled properly that they were bona fide purchasers of the property. Calloway contends that it “missed any record of the 1981 Judgment.” At the time suit was filed, J & A held title to the property.

The evidence showed that Harris Hilltop, LLC and Bran nan Hilltop, LLC possessed the property for more than four years (from 2001 to 2006). And the parties do not dispute that some consideration was paid for the property — rather, they dispute whether it was valuable consideration, which, too, is a jury determination. Accordingly, because the elements of good faith and valuable consideration are issues for the jury in connection with all the other evidence in the case, the trial court erred in granting summary judgment to the Hilltop defendants and to the J & A defendants on the claims brought in Huggins’s individual capacity as a judgment creditor of the estate, seeking to levy on the property, in Case No. A11A2228. That ruling is reversed.

Decided March 28, 2012

Reconsideration denied April 12, 2012.

Jeff F. Hollis, for appellant.

Ballard, Stephenson & Waters, William M. Waters, James, Bates, Pope & Spivey, William J. Sheppard, Moore, Ingram, Johnson & Steele, Joyce W. Harper, Heyman & Sizemore, William B. Brown, Jacqueline Marcucci, Hawkins, Parnell, Thackston & Young, Christine L. Mast, Matthew G. McLaughlin, for appellees.

Judgment affirmed in part and reversed in part in Case No. A11A2228.

Judgment reversed in Case No. A11A2229. Andrews and McFadden, JJ., concur.

       The Hilltop defendants are Hilltop Land Company, LLC; Harris Hilltop, LLC; Brannan Hilltop, LLC; and T. Daniel Brannan.

       The J & A defendants are J & A Group, Inc.; Branch Banking & Trust Company (BB & T); Double Feature, LLC; High Cotton Properties, LLC; and Turning the Tide, LLC.

       OCGA§ 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted); Norton v. Budget Rent A Car System, 307 Ga. App. 501 (705 SE2d 305) (2010) (we review the denial of summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party).

        Huggins v. Powell, 293 Ga. App. 436 (667 SE2d 219) (2008).

       Id. at 437 (2).

       Id. at 437-438 (2).

       In her complaint, Huggins listed the decedent’s heirs at law, against whom suit was filed, as: Virginia R. Powell, Elaine Powell Hardman, Marcus Henry Powell, Lynne Powell Ingram n/k/a Virginia L. Burnette, and Carol Powell n/k/a Carole Sorrells.

       See Ga. Const. 1983, Art. I, Sec. I, Par. X.

        Chepstow Ltd. v. Hunt, 381 F3d 1077, 1084 (III) (A) (11th Cir. 2004) (under Georgia law, if a right is substantive and it is vested, it cannot be extinguished).

       169 Ga. 534 (150 SE 841) (1929).

       Id. at 536 (citations omitted).

       See Mason v. Home Depot U. S. A., 283 Ga. 271, 278 (4) (658 SE2d 603) (2008) (substantive law creates rights, duties, and obligations while a procedural law prescribes the methods of enforcing those rights, duties, and obligations).

        Bank of Norman Park, supra at 536-537.

        Mason, supra (citations’and punctuation omitted).

        Hunter v. Johnson, 259 Ga. 21, 22 (1) (376 SE2d 371) (1989) (citations omitted).

        Beneke v. Parker, 293 Ga. App. 186, 191 (2) (667 SE2d 97) (2008) (affirmed in part and reversed in part on other grounds, Beneke v. Parker, 300 Ga. App. 576 (685 SE2d 479) (2009)), citing Hunter, supra at 22 (3).

        Vaughn v. Vulcan Materials Co., 266 Ga. 163, 164 (1) (465 SE2d 661) (1996); Hunter, supra at 22 (2), n. 2.

        Chepstow, supra at 1086 (III) (B) (citations omitted).

       217 Ga. App. 515 (458 SE2d 136) (1995).

       Id. at 515-516 (1).

       Id.

       Id. at 516 (1).

       Id. at 515.

       Id. at 516 (1).

       Id. at 516-517 (1).

       The UFTA was enacted by Ga. L. 2002, p. 141, effective July 1,2002; § 2 of the act states that OCGA § 18-2-22, “is amended ... by striking Code Section] ] 18-2-22, relating to conveyances by debtors deemed fraudulent, . . . and inserting in lieu thereof the following: ‘18-2-22. [striking through all of the language in former OCGA § 18-2-22] Reserved....’ ” New language used in the UFTA, which is now, in part, codified in OCGA § Í8-2-74, replaces that previously found in OCGA § 18-2-22. Also, the preamble included among the purposes of the act: “To amend . . . the Official Code of Georgia Annotated, relating to specific periods of limitations ...” and to “repeal conflicting laws.” Section 4 of the act also states that “[a]ll laws and parts of laws in conflict with this Act are repealed.”

        Lanier v. Anthony, 261 Ga. App. 848, 852 (1), n. 8 (583 SE2d 893) (2003); Kipperman v. Onex Corp., 411 BR 805, 827 (N.D. Ga. 2009) (“Georgia prohibits fraudulent transfers which occurred prior to July 1, 2002, under OCGA § 18-2-22, and transfers which occurred after July 1, 2002, under the Uniform Fraudulent Transfer[s] Act codified in OCGA §§ 18-2-70, et seq.” (citation and footnote omitted)).

       OCGA§§ 18-2-74 (a) (1); 18-2-79 (1).

        Atlanta Country Club, supra.

        See Black Island Homeowners Assn. v. Marra, 263 Ga. App. 559, 563 (2), n. 12 (588 SE2d 250) (2003), citing Gober v. Nisbet, 186 Ga. App. 264, 266 (2) (367 SE2d 68) (1988).

        See Albertson v. City of Jesup, 312 Ga. App. 246, 248 (1) (718 SE2d 4) (2011) (where grant of summary judgment was affirmed for a reason different than the reason found by the trial court; relying on the rule that summary judgment may be affirmed if it is right for any reason).

        Hardin v. Reynolds, 189 Ga. 589, 592 (1) (6 SE2d 913) (1940).

       Id. (citation omitted; emphasis supplied).

       Id.

       See Calhoun v. Williamson, 201 Ga. 759 (41 SE2d 146) (1947); Farmers & Nat. Bank v. Cook, 166 Ga. 322 (143 SE 385) (1928).

        Calhoun, supra; Farmers & Nat. Bank, supra; Hardin, supra.


author: Blackwell, Judge. ADAMS, Judge,

text:
    A11A2423.
    IN THE INTEREST OF C. L. et al., children.
    (727 SE2d 163)
   Blackwell, Judge.

The mother of two young boys, C. L. and C. L., appeals from the termination of her parental rights. She contends, among other things, that the evidence is insufficient to sustain two of the factual findings on which the termination was premised. We find no merit in this contention, and we affirm.

Viewed in the light most favorable to the judgment below, the evidence shows that the older boy came to the attention of the Department of Family and Children Services in April 2008, when the Department learned that his parents had a problem with substance abuse. Nearly a year later, the mother was arrested on drug charges, and at that time, the older boy was taken into the custody of the Department. Although the older boy was returned in March 2009 to the custody of his mother under a protective order, he was taken again into the custody of the Department only a month later, when both of his parents were arrested after they failed drug tests. At that time, both parents consented to a finding of deprivation based upon their incarcerations, unstable housing, unemployment, and unresolved substance abuse issues, and the juvenile court entered an order consistent with that stipulation.

The younger boy was born in October 2009. Two months later, and only about a week before the older boy was scheduled to be returned to his mother, she was arrested again, having violated the terms of her probation by breaking her curfew and failing a drug test. At that point, the younger boy also was put in the custody of the Department, and both parents again consented to findings of deprivation, this time with respect to the younger boy.

In January 2010, the mother was released from jail, and she entered an inpatient rehabilitation program to get help with her drug problem. She left that program without permission, however, only three months later. In March and April 2010, the mother refused to take a drug test on three occasions, and when a judge ordered her to take a drug test soon thereafter, she tested positive for methamphetamine use. The mother later admitted that, if she had taken the other drug tests in March and April 2010, she probably would have failed them too.

In May 2010, the juvenile court approved a permanency plan of reunification and a concurrent permanency plan of nonreunification, termination of parental rights, and adoption. These plans required the mother to obtain and maintain stable housing and employment, obtain substance abuse evaluations and any recommended treatment, submit to random drug tests, attend parenting classes, resolve any criminal cases that might affect her ability to parent, maintain meaningful contact with the children, pay child support, and cooperate with the Department. Around that time, authorities could not locate the mother for about two months, although she later testified that, during this time, she was awaiting bed space in a better rehabilitation facility. She had no contact at all with her children between April and August 2010.

In July 2010, the mother was admitted into another rehabilitation program, but she twice tested positive for methamphetamine use in the weeks following her admission to the program. Although the mother testified that she only used drugs “two or three times” after the boys were born, she conceded that, between April and July 2010, she spent her time “getting high,” and she used drugs at least once after entering the second rehabilitation program. The mother stayed in the second rehabilitation program for about 30 days, and in August 2010, she surrendered to law enforcement authorities on yet another probation violation. The mother still was incarcerated when the court below heard evidence on the petition to terminate her parental rights in December 2010.

The two boys were placed in the same foster home when they were taken into the custody of the Department, and they have remained there since. At the hearing, their caseworker testified that the boys now are doing “very well,” and their foster parents want to adopt them. The caseworker said that the foster home is the only home that the younger boy could remember, and she was unsure whether he would even know his mother. The caseworker testified that the older boy also is doing well in the foster home, although she conceded that he has a bond with his mother. The caseworker explained, however, that, because the mother had been unable to be a parent to the boys, they have nothing to gain by continuing a relationship with her. Both the guardian ad litem and the court-appointed special advocate (CASA) recommended that the juvenile court terminate the parental rights of the mother. The guardian cited the criminal history of the mother, her lack of history of stable employment, her unresolved drug issues, and her failure to take responsibility for her actions, as well as the need of the boys for permanency. The CASA agreed, explaining that, since leaving the custody of their mother, the boys “are receiving education, they’re loved, everything.”

In its termination order, the juvenile court found that the mother failed to make significant progress toward reunification in the two years in which she had been offered services. The court concluded that, given her history and continuing incarceration, the mother was unlikely to remedy the causes of deprivation within a reasonable time. With respect to the physical, emotional, and mental health needs of the boys, the court found that “the children do have the need for a sense of permanency and a safe and stable home.” The court noted that the older boy had been in the custody of the Department for the last two of his four years of life, and the younger boy had been in the Department’s care for all but the first two months of his life. The court further found that the boys had been placed together in a stable and loving foster home and that their foster parents had expressed a “willing[ness] to provide [them] with a permanent home through adoption.”

The mother filed a timely motion for new trial. At the hearing on this motion, she apparently submitted evidence that she was scheduled to be released from her current term of incarceration in May 2011. The court denied the motion, and she filed a timely discretionary appeal, which this Court granted.

1. When we consider the sufficiency of the evidence adduced in support of a petition to terminate parental rights, we ask whether any rational trier of fact could have found clearly and convincingly that the rights of the natural parent to custody have been lost. In the Interest of R. S., 287 Ga. App. 228, 228 (651 SE2d 156) (2007). To prove that parental rights ought to be terminated, the Department first must prove “parental misconduct or inability” by clear and convincing evidence. OCGA § 15-11-94 (a). Such proof requires the Department to establish: (1) that the child is deprived; (2) that the deprivation is a result of a lack of proper parental care or control; (3) that the cause of the deprivation is likely to continue; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. See OCGA § 15-11-94 (b) (4) (A) (i)-(iv). If the Department carries this burden, it then must prove that “termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child[,] including the need for a secure and stable home.” OCGA § 15-11-94 (a). In this case, the mother does not challenge the findings that the boys are deprived or that a lack of proper parental care or control is the cause of the deprivation. Nor does she claim that the court erred when it found that termination was in the best interest of the boys. Instead, the mother argues only that the Department failed to prove that the deprivation is likely to continue and that any such continued deprivation is likely to cause serious harm to the boys. We address each of these contentions below.

(a) With respect to a finding that deprivation is likely to continue, we have explained before:

If over the intervening months or years since she originally lost custody of the children, the mother has not modified the behavior that led to the original and continued removal of the children, then a court could find that the mother will continue to so act in the future and therefore that the cause of the deprivation will likely continue.

In the Interest of T. A. H., 310 Ga. App. 93,96 (2) (712 SE2d 115) (2011) (footnote omitted). “[T]he court can consider a parent’s past conduct in determining whether . . . conditions of deprivation are likely to continue.” In the Interest of B. T., 291 Ga. App. 604, 608 (c) (662 SE2d 656) (2008) (citation and punctuation omitted). And although a “parent’s incarceration does not always compel the termination of parental rights, it can support a termination when there are sufficient aggravating circumstances present.” In the Interest of A. E. S., 310 Ga. App. 667, 669-670 (714 SE2d 148) (2011) (punctuation and footnote omitted). A juvenile court also is entitled to consider proof that a parent failed to complete a case plan as evidence that a deprivation is likely to continue. In the Interest of J. A., 298 Ga. App. 11, 15 (1) (679 SE2d 52) (2009).

Here, the evidence shows that the mother was arrested and jailed following the birth of the older boy. She then violated her probation on at least two occasions, leading to two additional periods of incarceration, which left her unable to provide a stable environment for the boys or to support them. Even if she left the first rehabilitation program for legitimate reasons, she left it without permission, relapsed into drug abuse, and failed to notify the Department of her whereabouts. This evidence is sufficient to support the finding that the deprivation is likely to continue. See In the Interest of K. A. S., 279 Ga. App. 643, 650-651 (1) (b), (c) (632 SE2d 433) (2006) (evidence including that mother “failed to complete two of the most important goals of her case plan, to obtain and maintain a stable, legal income and housing,” was sufficient to show that the deprivation was due to lack of parental care and control and that the causes of the deprivation were likely to continue); In the Interest of M. N. R., 282 Ga. App. 46, 47-48 (637 SE2d 777) (2006) (even assuming that a mother had stopped using drugs by the time of the termination hearing, evidence including her admission that she had not completed a drug treatment program she enrolled in six months before the hearing and had relapsed after completing an earlier program was sufficient to affirm the juvenile court’s judgment that the deprivation was likely to continue).

(b) We next consider whether evidence supports the finding that the continued deprivation of the boys is likely to cause them serious harm. When a court assesses whether a child now in foster care is likely to suffer serious harm as a result of continued deprivation, see OCGA § 15-11-94 (b) (4) (A) (iv), the court must consider not only the likelihood of harm if the child remains indefinitely in foster care, but also the likelihood of harm if the child returns to the custody of his parent, notwithstanding that the deprivation persists. In the Interest of J. E., 309 Ga. App. 51, 58 (1) (d) (711 SE2d 5) (2011) (whole court) (“[0]ur law requires a juvenile court to consider not only the relationship between the parent and child at the time of the termination hearing, but also what might happen if the child were returned to the parent given the likelihood that the deprivation under which the child has been suffering would continue after a reunion with that parent.”). Here, the evidence shows a likelihood of harm in both circumstances.

First, the record supports a finding that the boys likely would suffer serious harm if they were returned to their mother. After all, the deprivation in this case involves, among other things, the mother repeatedly relapsing into abuse of illegal drugs, as well as her repeated incarceration for crimes and violations of probation, circumstances that, the court below found, are likely to persist. When the record includes evidence sufficient to support a finding that such circumstances are likely to persist and thereby leave a parent unable to provide for the needs of her child, we have said, time and again, that the same evidence also may authorize a finding that continued deprivation is likely to cause serious harm, even if it does not compel a finding of likely harm. See, e.g., In the Interest of A. E., 314 Ga. App. 206, 209 (2) (c) (723 SE2d 499) (2012); In the Interest of T.B. R., 304 Ga. App. 773, 782 (1) (d) (697 SE2d 878) (2010); In the Interest of K. A. S., 279 Ga. App. at 651-652 (1) (d). In J. E., we sustained a finding of a likelihood of harm based on evidence similar to the evidence that appears in this case. 309 Ga. App. at 58 (1) (d) (considering “the harmful consequences of the mother’s possible or likely relapse into drug use and/or her continued failure to provide for her child”).

As to the likelihood of harm as a result of foster care continuing indefinitely, the court below found that “the children do have the need for a sense of permanency and a safe and stable home.” This finding is no error. In the first place, our Court has recognized, in case after case, that children should not be required to linger unnecessarily and indefinitely in foster care, inasmuch as “children need permanence of home and emotional stability, or they are likely to suffer serious emotional problems.” J. E., 309 Ga. App. at 58 (1) (d) (citation and punctuation omitted); see also In the Interest of T. H., 311 Ga. App. 641, 645 (716 SE2d 724) (2011); In the Interest of R. J. D. B., 305 Ga. App. 888, 895 (1) (b) (700 SE2d 898) (2010); In the Interest of A. R., 302 Ga. App. 702, 711 (1) (d) (691 SE2d 402) (2010); In the Interest of A. J. D. S., 300 Ga. App. 235, 239 (4) (684 SE2d 360) (2009); In the Interest of S. N. H., 300 Ga. App. 321, 327 (1) (d) (685 SE2d 290) (2009); In the Interest of K. R., 298 Ga. App. 436, 442 (1) (d) (680 SE2d 532) (2009); In the Interest of P. D. W., 296 Ga. App. 189, 196 (1) (d) (674 SE2d 338) (2009); In the Interest of D. W., 294 Ga. App. 89, 93 (1) (d) (668 SE2d 533) (2008); In the Interest of C. J. L. C., 293 Ga. App. 848, 852 (1) (c) (668 SE2d 821) (2008); In the Interest of J. L. C., 292 Ga. App. 763, 768 (666 SE2d 98) (2008); In the Interest of D. B. C., 292 Ga. App. 487, 496 (1) (d) (664 SE2d 848) (2008); In the Interest of J. S., 292 Ga. App. 86, 89 (663 SE2d 793) (2008). Given our consistent recognition of this principle, we are not convinced that affirmative and individualized evidence always is required to authorize a finding that a child has a need for permanence and stability. But even if it is required, such evidence appears in this case. The case manager testified that both boys need permanency. About the younger boy, the case manager noted that he had been in the custody of the Department since he was seven weeks old, that his foster parents loved and cared for him and satisfied his needs, and that “[h]e needs to know that that’s going to continue.” As to the older boy, the case manager testified that he has been “through so much already” and “needs the stability that he has” with his foster parents. And the guardian ad litem described the need of the older boy for permanence as “dire.” Finally, the case manager testified that, although the mother loved the boys, she provided no stability, and the boys had nothing to gain from a continued relationship with her; the CASA reported that the mother had no stable housing or employment, that inconsistent visits with the mother negatively affected the older boy, and that the needs of both boys were met by their foster parents; and the guardian ad litem urged that the juvenile court terminate the parental rights of the mother to “permit these children to attain permanency.” This evidence is sufficient to sustain a finding that a continuation of foster care is likely to cause serious harm to the boys. See, e.g., In the Interest of M. S. S., 308 Ga. App. 614, 618, 623 (2) (b) (708 SE2d 570) (2011) (physical precedent only) (CASA testified about child’s need “for permanency and stability’); In the Interest of J. S. T. S., 273 Ga. App. 221, 226 (614 SE2d 863) (2005) (guardian ad litem testified about the “stability the children needed”).

2. The mother also asserts two other claims of error, but both are without merit, and neither warrants much discussion. First, the mother complains about the failure of the court below to continue the hearing on the petition to terminate her parental rights to permit her to obtain the testimony of an employee of one of the rehabilitation programs in which she was enrolled. But it appears that this testimony would have been cumulative of other evidence presented at the hearing, and for this reason, the denial of the continuance was no error. See In re N. S. M., 183 Ga. App. 398, 399 (2) (359 SE2d 185) (1987) (no error in excluding cumulative evidence). Second, the mother contends that the juvenile court should have placed the boys with the paternal grandmother of their half-sister. “This Court will not disturb a juvenile court’s determination that placement with a relative is not in the best interest of the child absent an abuse of discretion,” In the Interest of T. B. R., 304 Ga. App. at 784 (2) (citations and punctuation omitted), and although the court below considered this placement, it concluded that the grandmother, who has limited means and is caring for four other children, was without sufficient resources to care sufficiently for the boys. That conclusion was no abuse of discretion.

Judgment affirmed.

Ellington, C. J., Barnes, P. J., Doyle, P. J., and Miller, J., concur. Mikell, P. J., and Adams, J., dissent.

ADAMS, Judge,

dissenting.

Although I concur fully in Division 1 (a) and Division 2, I respectfully dissent from Division 1 (b) of the majority’s opinion affirming the termination of the mother’s parental rights because I believe that DFCS failed to present clear and convincing evidence that the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children.

While, as the majority notes, we are required to view the evidence below in the light most favorable to the judgment, that standard does not require that we ignore a parent’s efforts to comply with DFCS requirements. The majority’s factual recitation omits almost all of the evidence showing the mother’s efforts to address her drug problem and comply with the case plans and her probation. I believe that such facts are pertinent and, indeed, must be considered for a determination of whether a continued relationship with the mother is likely to cause harm to the children.

The evidence showed that the mother complied with her case plan for a period of almost five months until she relapsed shortly before she was scheduled to regain custody of the older son in December 2009. And upon the mother’s release from jail in January 2010, she asked to enter an inpatient rehabilitation program to help with her drug issues, rather than be released to deal with this problem on her own. The evidence showed, however, that the choice of program actually undercut her efforts at self-improvement. Although the mother eventually left that program without permission, she testified that she left because one of the counselors sexually assaulted her and drug use was prevalent, which led to her using drugs there. No evidence was introduced to contradict the mother’s version of these events. The mother said that she did not report these incidents because she did not think that anyone would believe her and that she would be kicked out of the program; the counselor who assaulted her told her that she needed to get on his “good side” because he was the one who talked to her probation officer and he could make sure she went back to jail.

The mother, in fact, had clean drug screens starting in January 2010 although she refused three drug screens in March and April and tested positive for methamphetamine on April 21, 2010 after the judge ordered her to have a hair screen. She dropped out of contact with the court and DFCS at this point because she did not want to go back to that rehabilitation center and she was “scared.” The evidence showed, however, that prior to her positive drug screen, the mother continued to visit her children every week between January and April 2010. She brought the children clothes, shoes or some kind of gifts at these visits. During this same time, from January to April 2010, she worked cleaning houses.

From the end of April to June 2010, the mother’s whereabouts were unknown to authorities, but she testified that during this time, she was awaiting bed space in a better rehabilitation facility. After leaving the first rehabilitation center, she applied to Mothers Making a Change, had her intake interview in June and entered the facility on July 14, 2010. The mother admitted that she went into the facility “dirty,” but said that she only used drugs once more, one week after starting the program. Afterward, she was placed on a 45-day plan and was doing well. While at that rehabilitation center, the mother attended classes like Early Recovery, Relapse, Prevention and Parenting. She also attended Alcoholics Anonymous several times per week during this time. She stayed there about 30 days before she left to turn herself in to the Cherokee County Adult Detention Center on or about August 22, 2010. She left Mothers Making a Change voluntarily to turn herself in; she was not ousted from the program and thus she understood that she could return. Although she was out of that rehabilitation center for several days before turning herself in, she said she was not using drugs during this period. And the mother testified that when she was released from probation, she intended to re-enter Mothers Making a Change, which had facilities giving her the potential to have the children while she was working on her rehabilitation plan.

Even if the trial court could have found that the deprivation was likely to continue, the record lacks clear and convincing evidence to support the court’s finding that the continued deprivation is likely to cause the requisite harm. “Unlike other cases where we have found evidence of such harm, no caseworker here testified as to any adverse effect on the children by their remaining in foster care as opposed to their being permanently adopted.” (Citations omitted.) In the Interest of A. T., 271 Ga. App. 470, 473 (610 SE2d 121) (2005). Here the only testimony from the caseworker even tangentially addressing this point was her testimony that the children had “nothing to gain” by continuing a relationship with their parents. The same caseworker also testified that the older son had a bond with his mother and that the mother clearly loved her sons. Nor was there any expert testimony addressing the issue of the need for permanency and the detrimental effects of foster care. Id. The caseworker and the guardian testified that, apparently in their opinions, the children needed permanency, but neither was qualified as an expert in the needs of foster children. Although a lay witness may give an opinion, the witness must give sufficient facts to establish the basis of her opinion. Smith v. Smith, 281 Ga. 380, 382 (1) (637 SE2d 662) (2006). Moreover, “[t]he opinion of a lay witness is not admissible when all of the facts and circumstances upon which it is based are capable of being clearly defined, so that the [factfinder] may readily reach its own opinion therefrom.” (Footnote omitted.) Johnson v. Knebel, 267 Ga. 853, 855 (1) (485 SE2d 451) (1997). Here the caseworker and the guardian gave no facts to support their opinions and DFCS made no attempt to lay out any facts upon which the trial judge could formulate its own opinion on the issue of permanency.

Instead, the caseworker’s evidence was simply that the foster parents were taking good care of the children and the children were doing well in their care, thus implying, perhaps, that they would be better off if the foster parents adopted them. But that is not the test. “A court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere.” (Citation omitted.) Carvalho v. Lewis, 247 Ga. 94 (274 SE2d 471) (1981). To the contrary, DFCS was required to show that the children would be seriously harmed if the mother’s parental rights were not terminated. I do not believe that simply stating that the children need permanence, without citing any evidence to show that a continued relationship with the parent will cause “serious physical, mental, emotional, or moral harm” is enough to sever all parental ties between the mother and her children. (Emphasis supplied.) In the Interest of A. T., 271 Ga. App. at 470. Even if the majority were correct in stating that individualized evidence of the need for permanency is not required in every case, DFCS at least should be required to present individualized evidence that continuing a relationship with the parent will cause serious harm to the children in addition to some generalized understanding of a need for permanence and stability. There was absolutely no evidence that the children “are currently suffering due to their placement in foster care or that without a permanent placement that they would suffer serious harm.” Id. at 474. In fact, the caseworker testified that the children were doing very well. “Rather, all we have is evidence of the mother’s inability to parent her children. The mother’s inability to care for her children does not necessarily mean that her current relationship with them is detrimental.” (Citations and punctuation omitted.) Id. at 473. And here, the evidence demonstrated that the mother had made some headway in her attempts to resolve her drug issues and that she was motivated to continue her rehabilitation in a facility where she had previously shown progress.

Thus, I find that DFCS simply failed to present clear and convincing evidence to satisfy this statutory requirement. “The lack of testimony as to harm has repeatedly caused us to reverse the lower court’s order of termination. [Cits.]” In the Interest of A. T., 271 Ga. App. at 474. As this Court has previously noted,

termination of parental rights is a remedy of last resort and can be sustained only when there is clear and convincing evidence [of the statutory factors]----While [I am] reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship.

(Punctuation and footnotes omitted.) In the Interest of D. L. T. C., 299 Ga. App. 765, 771 (1) (684 SE2d 29) (2009). See also In the Interest of J. E., 309 Ga. App. 51, 57 (1) (d) (711 SE2d 5) (2011) (a finding that deprivation is likely to continue does not automatically support a finding that continued deprivation will harm the child; whether the facts authorizing the former finding also authorize the latter finding depends on the circumstances of the case).

Accordingly, I would reverse the trial court’s order terminating the mother’s parental rights.

I am authorized to state that Presiding Judge Mikell joins in this dissent.

Decided March 30, 2012

Reconsideration denied April 12, 2012.

James K. Luttrell, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Hope M. Pereira, Jamie L. Smith, for appellee.

       For the sake of clarity, we refer to the boys in this opinion as the “older boy” and the “younger boy.” The older boy was born in January 2007, and the younger boy was born in October 2009.

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

       See In the Interest of M. S. S., 308 Ga. App. 614 (708 SE2d 570) (2011).

       At the hearing, the mother estimated that she would remain incarcerated until the middle of 2011, and after that, she would serve another seven years on probation, during which time she presumably would be subject to random drug tests.

       In any event, we note that the mother’s incarceration at the time of the termination hearing and her resulting inability to support the boys authorized the court to make those findings. See In the Interest of D. T. A., 312 Ga. App. 26, 31 (1) (a), (b) (717 SE2d 536) (2011).

       The dissent addresses only the former of these considerations. Because the dissent does not consider the likelihood of harm if the hoys return to the custody of the mother, notwithstanding that the deprivation persists, its analysis is incomplete.

       The record contains evidence that the boys’ foster parents, who have cared for them for most of their lives, are interested in adopting the boys.

       Although the mother appeared briefly at one court hearing in June 2010, she left because she was told she had an outstanding warrant and would probably go to jail.


author: BARNES, Presiding Judge.

text:
    A12A0054.
    WATER’S EDGE PLANTATION HOMEOWNER’S ASSOCIATION, INC. v. RELIFORD et al.
    (727 SE2d 234)
   BARNES, Presiding Judge.

In this case involving entry of a default judgment, Water’s Edge Plantation Homeowner’s Association, Inc. appeals from the trial court’s order denying its request for attorney fees pursuant to OCGA § 13-6-11. For the reasons discussed below, we affirm.

The record shows that on January 14, 2011, Water’s Edge sued Louis and JoAnn Reliford, alleging that they had violated a restrictive covenant of the homeowner’s association by failing to finish building a structure on their property that they had started six years earlier, and requesting that they be enjoined from continuing the violation. Although a sheriff’s entry of service reflected that the Relifords were both served with the summons and complaint on January 20, 2011, neither of them filed an answer. As a result, the case automatically went into default on February 22, 2011. See OCGA §9-11-55 (a).

On April 4,2011, Water’s Edge amended its complaint to request attorney fees and the expenses of litigation under OCGA § 13-6-11. Water’s Edge thereafter moved for entry of a default judgment on April 21, 2011. Granting the motion, the trial court entered a default judgment against the Relifords on May 3, 2011, enjoining them from continuing their violation of the restrictive covenant, and ordering that the existing structure on their property be torn down and the property be returned to its original state.

The trial court subsequently conducted an evidentiary hearing addressing the issue of attorney fees and expenses under OCGA § 13-6-11. The hearing was not transcribed. Following the hearing, the trial court entered an order denying Water’s Edge’s request for attorney fees. Based on the request for attorney fees and expenses sought by Water’s Edge, “the evidence and argument presented at the hearing,” and the record in the case, the trial court found that the Relifords had not acted in bad faith, had not been stubbornly litigious, and had not caused Water’s Edge unnecessary trouble and expense. This appeal followed.

Water’s Edge contends that the trial court erred in declining to grant its request for attorney fees and the expenses of litigation under OCGA § 13-6-11. Specifically, Water’s Edge contends that the trial court’s finding that the Relifords had not caused the homeowner’s association unnecessary trouble and expense was erroneous as a matter of law. We disagree.

OCGA§ 13-6-11 provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

It is solely for the trier of fact to resolve whether attorney fees and expenses should be awarded under OCGA § 13-6-11, and, if so, in what amount. See Royal v. Blackwell, 289 Ga. 473, 477-478 (2) (b) (712 SE2d 815) (2011); Covington Square Assocs. v. Ingles Markets, 287 Ga. 445, 446 (696 SE2d 649) (2010). Attorney fees and expenses under OCGA § 13-6-11 can be recovered in proceedings in equity, see King v. Baker, 214 Ga. App. 229, 234-235 (4) (447 SE2d 129) (1994), and in such cases the trial court sits as the trier of fact on the issue. See Rice v. Lost Mountain Homeowners Assn., 269 Ga. App. 351, 355-356 (5) (604 SE2d 215) (2004). We review the decision about whether and to what extent to award attorney fees and expenses under the deferential “any evidence” standard. See City of Hoschton v. Horizon Communities, 287 Ga. 567, 569 (3) (697 SE2d 824) (2010).

Sitting as the trier of fact, the trial court in the present case found, after conducting an evidentiary hearing, that the Relifords had not caused unreasonable trouble and expense to Water’s Edge. But no transcript was made of that evidentiary hearing, and, therefore, review of the trial court’s finding under the “any evidence” standard is precluded by the state of the record before us.

It is well established that the burden is on the party alleging error to show it affirmatively by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, the appellate court must assume that the judgment below was correct and affirm. Assertions of evidence in briefs or enumerations of error cannot satisfy this duty, and factual assertions contained in the parties’ briefs to the lower court are not evidence.

(Citations and punctuation omitted.) Tahamtan v. Sawnee Elec. Membership Corp., 228 Ga. App. 485, 485-486 (491 SE2d 918) (1997). Without access to the transcript of the evidentiary hearing or a statutorily authorized substitute, we must presume that the trial court was correct in its finding on the issues of attorney fees and affirm the order entered in favor of the Relifords. See Sanders v. Daniel, 302 Ga. App. 350, 351 (1) (691 SE2d 244) (2010).

Water’s Edge, however, contends that a transcript of the evidentiary hearing is not needed on appeal because the trial court’s order is erroneous on its face. According to Water’s Edge, because a default judgment was entered against the Relifords for failing to answer the complaint, they admitted all of the well-pleaded allegations of the complaint, and thus caused unnecessary trouble and expense as a matter of law to the homeowner’s association by forcing it to litigate the matter when there was no bona fide controversy. We are unpersuaded under the circumstances of this case.

It is true that if a plaintiff in its original complaint puts the defendant on notice that it is seeking attorney fees and expenses under OCGA § 13-6-11 as part of the relief prayed for in the case, and if a default judgment is subsequently entered against the defendant for failing to answer the complaint, then the plaintiff is entitled to an award of attorney fees and expenses as a matter of law from the defendant having caused unnecessary trouble and expense. See Fresh Floors v. Forrest Cambridge Apts., 257 Ga. App. 270, 272 (570 SE2d 590) (2002); Floyd v. First Union Nat. Bank of Ga., 203 Ga. App. 788, 792 (3) (417 SE2d 725) (1992); Hartford Ins. Co. v. Mobley, 164 Ga. App. 363 (297 SE2d 312) (1982) (physical precedent only); Bran-non Enterprises v. Deaton, 159 Ga. App. 685, 686-687 (285 SE2d 58) (1981). But the original complaint filed by Water’s Edge, styled its “Verified Complaint for Equitable Relief,” requested injunctive relief and did not request an award of attorney fees and expenses or otherwise seek monetary damages. The request for attorney fees and expenses was contained only in the amended complaint, filed after the Relifords had gone into default.

OCGA § 9-11-54 (c) (1) provides that “[a] judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.” Based upon this statutory provision, we have held that “[a] plaintiff’s relief in a judgment by default is strictly limited in nature and degree to that specifically demanded in the complaint, . . . [and] in such circumstances a complaint may not be amended to conform to the evidence.” (Citations and punctuation omitted.) Stamps v. Nelson, 290 Ga. App. 277, 280 (2) (659 SE2d 697) (2008). This is because “[t]he defendant should not be subjected to some greater judgment than that sought in the complaint, where he had no notice it would be sought nor any opportunity to defend against the greater amount.” (Citation and punctuation omitted.) Id. As we have explained,

[i]t would be fundamentally unfair to have the complaint lead defendant to believe that only a certain type and dimension of relief was being sought and then, should he attempt to limit the scope and size of the potential judgment against him by not appearing or otherwise defaulting, allow the court to give a different type of relief or a larger damage award.

(Citation and punctuation omitted.) Orkin Exterminating Co. v. Townsend, 136 Ga. App. 50, 53 (2) (220 SE2d 14) (1975).

Furthermore, “[e]ven in default, no responsive pleadings are required to an amendment. Averments in a pleading to which no responsive pleading is required are considered as denied.” (Citation and punctuation omitted.) Enduracare Therapy Mgmt. v. Drake, 298 Ga. App. 809, 816 (3), n. 23 (681 SE2d 168) (2009). See OCGA§ 9-11-8 (d); Shields v. Gish, 280 Ga. 556, 557 (1) (629 SE2d 244) (2006); Evans v. Marshall, 253 Ga. App. 439 (559 SE2d 165) (2002). Thus, allegations contained for the first time in an amended complaint are not deemed admitted even when a defendant is in default. See Enduracare Therapy Mgmt., 298 Ga. App. at 816, n. 23.

Because the original complaint for equitable relief did not put the Relifords on notice that Water’s Edge was seeking attorney fees and expenses under OCGA § 13-6-11, and because its claim for attorney fees and expenses was contained only in its amended complaint, Water’s Edge was not entitled to a default judgment on that claim. See Enduracare Therapy Mgmt., 298 Ga. App. at 816, n. 23; Jayson v. Gardocki, 221 Ga. App. 455, 456-457 (471 SE2d 545) (1996) (physical precedent only); Ga. Farm Bureau Mut. Ins. Co. v. Williamson, 124 Ga. App. 549, 551 (5) (184 SE2d 665) (1971). It follows that the trial court committed no error in declining to award attorney fees and expenses to Water’s Edge as a matter of law and instead conducting an evidentiary hearing to resolve whether such an award was appropriate.

Judgment affirmed.

Adams and McFadden, JJ., concur.

Decided April 12, 2012.

Sell & Melton, Blake E. Lisenby, for appellant.

Lawton Miller, Jr., for appellees.


author: McFadden, Judge.

text:
    A12A0067.
    THE STATE v. TAPLIN.
    (731 SE2d 60)
   McFadden, Judge.

Steve Taplin was indicted for aggravated assault, possession of a firearm during the commission of a crime, cruelty to a child in the third degree and driving with a suspended license. The trial court granted Taplin’s motion to suppress evidence of a gun found in his truck during a warrantless search incident to his arrest, and the state appeals. Because the uncontroverted evidence demonstrated, as a matter of law, that Taplin was arrested for the crime of aggravated assault, and because it was reasonable for an officer to believe that the truck contained evidence related to that crime, the warrantless search was permitted pursuant to Arizona v. Gant, 556 U. S. 332 (129 SC 1710, 173 LE2d 485) (2009). Accordingly, we reverse.

On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on conflicting evidence will not be disturbed if there is any evidence to support them. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). But “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

The only evidence presented at the suppression hearing was the testimony of police officer Larry Sanford. He testified that around noon on November 29, 2009, he was dispatched to a domestic dispute with information that a person named Steve Taplin had pointed a firearm at his child’s mother and then driven away from an apartment complex in a black pickup truck. One to two minutes later, as Officer Sanford was en route to the scene, he saw a black pickup truck leaving the vicinity of the apartment complex. He determined by checking the license tag that the pickup truck was registered to Steve Taplin. A dispatcher also informed him that Taplin’s driver’s license was suspended.

Officer Sanford testified that, “based on the possibility of a firearm being in the vehicle,” he did not immediately initiate a traffic stop but, along with an officer in another vehicle, continued following the truck for another five to ten minutes. He then initiated what he described as a “felony traffic stop.” The two officers got out of their vehicles with their firearms drawn and asked Taplin to place his hands outside the truck’s window. Taplin did not comply but instead “look[ed] around in the vehicle toward the center of the vehicle compartment.” A third officer arrived on the scene, and Officer Sanford ordered Taplin to step out of the truck and face away from him. Taplin did so, but repeatedly tried to look and reach inside the truck, telling the officers that he was looking for his identification. Ultimately, he complied with commands to walk backwards toward the officers, get on his knees on the ground, and cross his legs behind him. One of the officers approached him and placed him in handcuffs. Taplin then was taken to the rear of one of the police vehicles. The officers asked his name and determined that he was Steve Taplin. They also sought consent to search the truck, but Taplin refused.

At that point, one of the officers “cleared the rest of the vehicle, mak[ing] sure there [were] no other occupants inside the vehicle.” Officer Sanford then checked the area of the truck where he had noticed Taplin looking and found a firearm under the driver’s seat cushion cover.

In Arizona v. Gant, the Supreme Court of the United States held that “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” (Citation and punctuation omitted.) Gant, 556 U. S. at 343 (III). In granting Taplin’s motion to suppress, the trial court noted that Officer Sanford had not specifically identified the crime for which he had arrested Taplin. Thus, the court stated:

Both sides make conclusions about what the arrest was for, with the State claiming it was for the Aggravated Assault and the Defendant contending it was for the suspended license. Without a clear record and with the law that it is the State’s burden to show the legality of the search, the Court finds that the burden has not been met by the State. Consequently, the Court is unable to ascertain whether it was reasonable for the Officer to believe that evidence relevant to the specific crime of the arrest might be found in the vehicle.

See generally State v. Massa, 273 Ga. App. 596, 597 (615 SE2d 652) (2005) (state bears the burden of showing circumstances constituting an exception to the general prohibition against warrantless searches and seizures).

In light of the Supreme Court of Georgia’s opinion in State v. Underwood, 283 Ga. 498 (661 SE2d 529) (2008), the trial court erred in granting the motion to suppress. The Supreme Court held in Underwood that, under the uncontroverted facts of that case, “[t]he coincidence of probable cause to arrest [a defendant] for a violation [of a particular statute] and [the defendant’s] actual arrest meant that [the defendant] was, as a matter of law, arrested for [a violation of that] statute.” (Citations and punctuation omitted; emphasis supplied.) Id. at 501. Consequently, applying a de novo standard of review, the Supreme Court reversed this Court’s ruling that the determination of the offense for which the defendant had been arrested was an issue of fact for the trial court to decide and that, construing the evidence to support the trial court’s findings, that determination was not clearly erroneous. Id. at 500-501; see State v. Underwood, 285 Ga. App. 640, 642 (647 SE2d 338) (2007).

As in Underwood, the undisputed facts in this case showed a coincidence of probable cause to arrest Taplin for aggravated assault and Officer Sanford’s actual arrest of him, and this coincidence demonstrated, as a matter of law, that Taplin was arrested for the crime of aggravated assault, contrary to the trial court’s finding. Underwood, 283 Ga. at 501. The totality of the circumstances supported a finding that at the time of Taplin’s arrest, Officer Sanford had probable cause to arrest him for aggravated assault, specifically the dispatches naming “Steve Taplin” as the perpetrator and indicating that the truck stopped by the officer was registered to “Steve Taplin,” the match of the truck to the description provided in the dispatches, the location of the truck near the scene of the aggravated assault, the officers’ identification of the truck’s driver as Steve Taplin, and Taplin’s behavior upon being stopped. See Brown v. State, 278 Ga. 724, 727 (2) (609 SE2d 312) (2004) (probable cause to arrest was supported by detailed information received from a police advisory describing the appearance of persons suspected of murder, attempted armed robberies and assaults and describing the car in which they were riding, and by officers’ observation of a gun on the floorboard of the car during an investigative stop); Boykins-White v. State, 305 Ga. App. 827, 832 (4) (701 SE2d 221) (2010) (probable cause to arrest before officer searched defendant was supported by evidence that an officer received a radioed alert of the appearance and location of two armed robbery suspects and observed near the location a person matching the description who was crawling in a ditch and removing his pants); Burgess v. State, 290 Ga. App. 24, 27 (658 SE2d 809) (2008) (probable cause to arrest was supported by the report of property owner that she had been told persons were growing marijuana on her property, the report of another witness that two persons had recently entered the property in a black truck, the discovery of a black truck on the property with yard tools in its bed, and the defendant’s behavior in failing to comply with the officers’ commands when they encountered him near the truck).

Decided April 12, 2012.

Lee Darragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellant.

Adam S. Levin, for appellee.

Given the evidence that Taplin allegedly had pointed a gun at the aggravated assault victim before leaving the scene in his truck, along with the evidence of Taplin’s movements inside the truck and his persistent efforts to reach and look into the truck during the stop, it was reasonable to believe that evidence relating to the aggravated assault (the gun) might be found in the truck, and thus the warrant-less search of the truck incident to Taplin’s arrest was justified. Gant, 556 U. S. at 343 (III). Consequently, the trial court erred in granting the motion to suppress. See Underwood, 283 Ga. at 501.

Judgment reversed.

Barnes, P. J., and Adams, J., concur.