author: Miller, Judge.

text:
    A13A0362.
    COX v. BANK OF AMERICA, N.A.
    (742 SE2d 147)
   Miller, Judge.

Thomas Cox sued Bank of America (the “Bank”) to collect amounts he paid the Bank when it allegedly informed him that certain money transfers were fraudulent. The Bank moved to dismiss Cox’s complaint for failure to state a claim upon which relief could be granted. Following a hearing, the trial court granted the Bank’s motion. Cox appeals pro se, contending that the trial court erred in failing to provide adequate discovery, relying on hearsay evidence to make its judgment, and granting the Bank’s motion to dismiss. Finding no error, we affirm.

As an initial matter, we note that Cox’s brief fails to comport with the rules of this Court in several ways. First, Cox fails to make a single citation to the record to support any of his assertions. “Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not... consider such enumeration.” Court of Appeals Rule 25 (c) (2) (i). Second, Cox has listed three enumerations of error, but the argument in his brief fails to follow the order and number of the enumeration of errors, as required by Court of Appeals Rule 25 (c) (1). The argument itself does not even address each enumeration of error. “As this Court has noted in the past, such briefs hinder this Court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown to a pro se appellant.” (Punctuation and footnote omitted.) Slmbey v. State, 288 Ga. App. 717, 718 (655 SE2d 223) (2007). Nevertheless, because the record in this case is fairly small, and the Bank has provided sufficient citations to the record, we will address the merits of Cox’s appeal.

Decided April 23, 2013

Reconsideration denied May 21, 2013

Thomas B. Cox, pro se.

McGuireWoods, Jarrod S. Mendel, for appellee.

1. Cox contends that the trial court erred in not allowing adequate discovery because it should have granted his motion for production of documents. The trial court ordered the Bank to respond more completely to two of Cox’s interrogatories. After the Bank responded to these interrogatories, Cox moved for production of documents. The trial court found that the Bank had complied with its discovery obligations. “[W]e will not reverse a trial court’s ruling on discovery matters absent a clear abuse of discretion.” (Citations and punctuation omitted.) Norfolk Southern R. Co. v. Hartry, 316 Ga. App. 532, 533 (729 SE2d 656) (2012). Cox fails to show a clear abuse of discretion here.

2. Cox contends that the trial court erred in dismissing his complaint and improperly relied upon hearsay evidence to do so. Cox does not cite to anything in the record or order to show that the trial court relied upon hearsay evidence in dismissing his complaint. “We will not presume the trial court committed error where that fact does not affirmatively appear in the record.” (Citation omitted.) Johnson v. Equicredit Corp., 238 Ga. App. 380 (1) (517 SE2d 353) (1999).

As for Cox’s complaint, to the extent we can determine his cause of action, it appears to be one based on fraud. Notably, in a few sentences, Cox appears to allege that the Bank gave him false information that he relied upon to his detriment. Even if we construe the pleading in the light most favorable to Cox, fraud requires “five essential elements: a false representation, scienter, inducement, reliance, and injury resulting from reliance on the false representation. Further, fraud must be pled with particularity. OCGA § 9-11-9 (b).” (Citation and punctuation omitted.) Little v. Fleet Finance, 224 Ga. App. 498, 500 (1) (481 SE2d 552) (1997). In this case, even if Cox’s allegations are considered as true on a motion to dismiss, he has not alleged sufficient facts to make out a prima facie case of fraud. Id. Therefore, we affirm the trial court’s dismissal of Cox’s complaint.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A13A0051.
    LINDSEY v. THE STATE.
    (743 SE2d 481)
   Miller, Judge.

Following a jury trial, Marcus Antonio Lindsey was convicted of two counts of armed robbery (OCGA § 16-8-41 (a)). Lindsey appeals from the denial of his motion for new trial, contending that (1) the evidence did not support his convictions; (2) the trial court erred in admitting improper identification testimony; (3) the trial court incorrectly instructed the jury on identification testimony; (4) the trial court erred in admitting his taped statement; and (5) the trial court improperly played his co-defendant’s taped statement. For the reasons that follow, we affirm Lindsey’s convictions.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the trial evidence shows that on June 21, 2002, the first victim left work around 1:30 to 2:00 a.m., and she drove to a Burger King on Washington Road in Richmond County. The second victim, who was a friend, followed the first victim in his vehicle and parked next to her in the Burger King parking lot. The second victim got out of his vehicle and stood next to the driver’s side of the first victim’s car to discuss getting something to eat.

While the victims were talking, Carlos McCain, Lindsey and a third individual were driving around in a blue Honda Civic when they spotted the two victims in the Burger King parking lot. The group parked the Civic next to the second victim’s car. One of the men came up to the second victim with what appeared to be a gun, demanded the victim’s money and moved the second victim away from the first victim’s car. The second victim took $400 - $600 in cash, his checkbook and his work keys out of his pockets and dropped them on the ground. Meanwhile, an assailant, who was wearing a plaid shirt, pointed a gun at the first victim’s face through the passenger side window and said, “Give me your money.” The first victim handed the man her purse, which contained approximately $1,000 in cash. While the man went through the first victim’s purse, the third assailant approached the first victim through the driver’s side window, pressed a metal object into her face, and repeatedly told her to give him money. All three assailants — McCain, Lindsey and the third individual — got into the Civic and drove off.

Soon thereafter, an officer from the Richmond County Sheriff’s Office, was driving westbound on Washington Road near the Interstate 20 bridge when he noticed a blue Civic with no headlights coming toward him in the opposite direction. The car was the same Honda Civic that McCain had borrowed on June 20, 2002, and Lindsey was one of the passengers in the car. When the officer turned around to pull over the Civic, the driver of the Civic pulled into a convenience store and drove around to the back of the store. The driver then stopped the car, all three occupants jumped out, and they ran into the woods.

The officer called for back-up, and the responding officers searched for the three assailants. Meanwhile, the Civic was inventoried, and an officer found the first victim’s purse and the second victim’s checkbook inside the vehicle. Approximately 15 to 20 minutes later one of the responding officers found Lindsey about 30 yards from the car. Lindsey was lying down next to a tree with brush or leaves covering him. Lindsey was identified as one of the assailants who jumped out of the Civic and fled, and he was arrested for obstruction. When Lindsey was booked into the jail that morning, he was wearing a plaid shirt.

Later that morning, a Richmond County investigator interviewed Lindsey. The investigator read Lindsey his Miranda rights, and Lindsey waived his rights in writing. During the interview, Lindsey told the investigator that he was present during the robbery, he exited the car and he approached the two victims to distract them while the other participants got ready to rob the victims. Lindsey also said that he spoke to the first victim and told her to calm down because she was screaming and crying. Lindsey said that they were stopped by police a few minutes after they drove away from the robbery scene. Lindsey and the others exited the car and fled.

Based on information that Lindsey provided during the interview, the investigator obtained a photograph of McCain and showed it to Lindsey. Lindsey identified McCain as one of the men in the car with him during the robbery. The investigator then retrieved a tape recorder and took Lindsey’s recorded statement, during which Lindsey confirmed that he got out the car to distract the two victims. The investigator subsequently interviewed McCain. McCain confirmed that he, Lindsey and Lindsey’s brother were involved in the armed robbery.

1. Lindsey contends that the evidence was insufficient to support his conviction. We disagree.

“A person commits the offense of armed robbery when, with intent to commit theft, he ... takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). Furthermore, “[i]n accordance with OCGA § 16-2-20 (a), any person concerned in the commission of a crime is a party to it and may be convicted as a principal.” (Citation and punctuation omitted.) Bryson v. State, 316 Ga. App. 512, 514 (1) (729 SE2d 631) (2012).

Here, the evidence showed that both victims were robbed by men driving a Honda Civic who were armed with a gun or what appeared to be a gun. Lindsey admitted that he distracted the victims while the other participants robbed them. When he was arrested, Lindsey was wearing a plaid shirt, and the first victim testified that one assailant was wearing a plaid shirt. Additionally, Lindsey and the other participants ran from the Civic shortly after an officer attempted to stop the car for driving without headlights. Lindsey’s flight from the scene provided an additional circumstance from which the jury could infer his guilt. See Woodruff v. State, 233 Ga. 840, 842 (1) (213 SE2d 689) (1975) (holding that “evidence of flight may be admitted as one of a series of circumstances from which guilt may be inferred”) (punctuation omitted). Moreover, the first victim’s purse and the second victim’s checkbook were found in the Civic, from which Lindsey was seen exiting and fleeing. Thus, when viewed in the light most favorable to the jury’s verdict, the evidence was sufficient to authorize the jury to convict Lindsey as a principal to the armed robbery of both victims.

2. Lindsey contends that the trial court erred in admitting improper identification testimony. We do not agree.

Lindsey argues that neither of the victims identified him as a participant in the armed robbery, and that the State’s identification evidence was based on his and McCain’s statements which should have been excluded. As set forth in Divisions 4 and 5 below, both Lindsey’s and McCain’s taped statements were properly admitted. Accordingly, this enumeration of error presents nothing for us to review.

3. Lindsey contends that the trial court erred in charging on identification, when the trial court instructed the jury to evaluate the “level of certainty shown by the witness.” Again, we disagree.

In Brodes v. State, 279 Ga. 435, 442 (614 SE2d 766) (2005), the Supreme Court of Georgia disapproved of the pattern jury instruction on eyewitness identification authorizing jurors to consider a witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification. Although Lindsey’s trial occurred before the Brodes opinion was issued, the Supreme Court of Georgia has consistently applied Brodes to appeals in which the trial had concluded before Brodes was issued. See Lewis v. State, 291 Ga. 273, 278 (4) (731 SE2d 51) (2012).

Nevertheless, Brodes does not require reversal. Unlike Brodes, other evidence besides eyewitness identification testimony linked Lindsey to the robbery. See Lewis, supra, 291 Ga. at 278 (4); Rabie v. State, 294 Ga. App. 187, 195 (5) (b) (668 SE2d 883) (2008). Notably, Lindsey admitted that he participated in the robbery by distracting the victims while the other participants robbed them, and after the robbery, he ran from the car which was used in the robbery and in which officers found items taken from the two victims. Moreover, eyewitness identification did not play a significant role in the State’s case, because the victims only provided limited descriptions of the perpetrators and neither victim identified Lindsey in court. See Lewis, supra, 291 Ga. at 278-279 (4). Accordingly, it is highly probable that giving the erroneous jury instruction did not contribute to the verdict, and the error was thus harmless.

4. Lindsey contends that the trial court erred in admitting his statement to the investigator. Specifically, Lindsey argues that his taped statement was not free and voluntary because the investigator did not reread his Miranda rights, following a significant time gap between the signing of the waiver of rights form and the beginning of the taped interview. We discern no error.

In ruling on the admissibility of an in-custody statement, a trial court must determine whether, based upon the totality of the circumstances, a preponderance of the evidence demonstrates that the statement was made freely and voluntarily. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of the defendant’s statement at a Jackson v. Denno[, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964)] hearing will be upheld on appeal.

(Citation omitted.) Humphreys v. State, 287 Ga. 63, 73 (6) (694 SE2d 316) (2010).

Here, the evidence at the Jackson v. Denno hearing showed that Lindsey was taken into custody for obstruction shortly before 3:00 a.m. The investigator testified that approximately six hours later, he interviewed Lindsey about the armed robbery in this case. Prior to advising Lindsey of his rights, the investigator got basic information from Lindsey, including his birthday, address, physical description and the fact that Lindsey had a high school education. The investigator then gave Lindsey his Miranda warnings, Lindsey indicated that he understood all of his rights, he appeared to be coherent, and he did not appear to be under the influence of drugs or alcohol. Lindsey then signed a waiver of counsel form, which set forth his rights and specifically provided that no promises or threats were made to induce him to sign the waiver.

Prior to making his taped statement, Lindsey told the investigator that he was present during the robbery, he approached the first victim and told her to calm down because she was screaming. The investigator spoke with Lindsey for approximately an hour and a half before he recorded Lindsey’s statement. During the unrecorded portion of the interview, the investigator encouraged Lindsey to cooperate and tell the truth, and he let Lindsey know that he could be identified by witnesses. The investigator testified, however, that he did not threaten Lindsey or promise him anything for giving the statement. After listening to the taped interview, the trial court ruled that Lindsey’s statement was freely and voluntarily given.

Lindsey did not testify at the Jackson v. Denno hearing, and no evidence showed that he was coerced or threatened during the unrecorded portion of his interview with the investigator. Moreover, in light of the continuous nature of the interrogation, the investigator was not required to specifically re-apprise Lindsey of his Miranda rights before he made the taped statement. See Carswell v. State, 279 Ga. 342, 343 (2) (a) (613 SE2d 636) (2005); Davis v. State, 292 Ga. App. 782, 785 (2) (666 SE2d 56) (2008). Accordingly, the trial court did not abuse its discretion in finding that, under the totality of the circumstances, Lindsey’s taped statement was freely and voluntarily made following a waiver of his Miranda rights.

5. Lindsey contends that the trial court violated his confrontation right when it admitted McCain’s taped statement after McCain took the stand and refused to provide meaningful testimony regarding the armed robbery. We disagree.

The [C]onfrontation [C] lause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant. . . . [Statements made to police officers during an investigation qualify as testimonial.

(Citations and punctuation omitted.) Jackson v. State, 291 Ga. 22, 24 (2) (727 SE2d 106) (2012). Nevertheless,

when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. It is therefore irrelevant that the reliability of some out-of-court statements cannot be replicated, even if the declarant testifies to the same matters in court. The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

(Citations and punctuation omitted.) Crawford v. Washington, 541 U. S. 36, 59 (IV), n. 9 (124 SCt 1354, 158 LE2d 177) (2004).

Decided May 21, 2013.

William M. Fleming, for appellant.

R. Ashley Wright, District Attorney, Charles R. Sheppard, Madonna M. Little, Assistant District Attorneys, for appellee.

Here, Lindsey fails to show that the Confrontation Clause barred admission of McCain’s taped statements to police officers. Notably, McCain testified at Lindsey’s trial that he committed the armed robbery, and Lindsey was with him. McCain admitted giving a taped statement to the investigator about the robbery, although he refused to answer the State’s questions about his statement. While Lindsey argues that he was denied the right to confront McCain, he expressly declined the opportunity to cross-examine McCain. Moreover, while Lindsey now argues that McCain refused to testify, at trial he specifically argued that McCain did not refuse to testify, and that the prosecutors could have done more at trial to elicit testimony from McCain. Compare Soto v. State, 285 Ga. 367, 370 (2) (b) (677 SE2d 95) (2009) (admission of a witness’s prior statement violated the defendant’s confrontation right where the witness “shut down” in the midst of direct examination and refused to answer further questions posed by either the prosecution or the defense). Since McCain was present at trial to defend or explain his statement, and Lindsey declined the opportunity to cross-examine him, the Confrontation Clause did not bar admission of McCain’s taped statement.

Judgment affirmed.

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


text:
    A13A0096.
    MOORE v. THE STATE.
    (743 SE2d 486)
   Miller, Judge.

Following a bench trial, J ason Moore was convicted of trafficking in cocaine (OCGA § 16-13-31 (a) (1)), possession of marijuana (OCGA § 16-13-30 (a)), and failure to maintain lane (OCGA § 40-6-48). On appeal, Moore contends that the trial court erred in denying his motion to suppress because the officer impermissibly expanded the duration and scope of the traffic stop, and that the officer lacked a reasonable suspicion to justify the continued detention. We discern no error and affirm.

In reviewing a trial court’s order on a motion to suppress, we construe the evidence most favorably to uphold the court’s decision. The trial court sits as the trier of fact; its findings are akin to a jury verdict and will not be disturbed if there is any evidence to support them. Stated another way, in the absence of evidence of record demanding a finding contrary to the judge’s determination, the appellate court will not reverse the ruling sustaining a motion to suppress.

(Citations, punctuation and footnotes omitted.) State v. Stephens, 289 Ga. App. 167 (657 SE2d 18) (2008).

So construed, the evidence shows that on the night of September 16, 2009, a Douglasville Police Department officer was patrolling Interstate 20 near Highway 5. Around midnight, the officer observed Moore driving his vehicle too closely behind another vehicle and failing to maintain his lane. The officer then initiated a traffic stop.

When the officer approached the vehicle, Moore provided his driver’s license and insurance, as well as a copy of the rental agreement for the vehicle. After reviewing the documentation provided, the officer told Moore that he would be issuing only warning citations. The officer observed that Moore’s hands were shaking excessively, his right leg was bouncing up and down, and he appeared to be extremely nervous. Since Moore was excessively nervous, the officer asked Moore to step out of his vehicle. Upon exiting his vehicle, Moore quickly walked to the officer’s patrol vehicle and attempted to get in. The officer stopped Moore, and then began writing the first warning citation.

Despite being told that he would only receive a warning, Moore’s nervousness escalated. Moore repeatedly rubbed his shirt, was overly talkative, fidgeted, and paced back and forth. The officer stated that he then called for backup due to Moore’s continued nervousness, and another officer arrived in less than two minutes. While the officer was filling out the first warning citation, he engaged in a conversation with Moore. The officer stated that Moore hesitated when answering questions about his itinerary. Moore first stated that he left Alabama after work sometime around 5:00 earlier that evening to visit a girl who lived in Stonecrest. When questioned further, Moore stated that he left work earlier than 5:00 p.m., but he did not provide a clear answer. Moore stated that he was attempting to return to Alabama before his girlfriend found out that he went to visit another woman in Georgia.

Approximately six minutes into the stop, the officer called for a K-9 unit. While waiting for the K-9 unit to arrive, the officer completed the first warning citation and gave it to Moore. The officer returned Moore’s driver’s license, and told Moore that the license was not needed to complete the second citation. Soon thereafter, however, the officer asked Moore to furnish his driver’s license again because the officer forgot to run his driver’s license through dispatch. Before completing the second citation, the officer began asking Moore additional questions about the rental vehicle. Moore explained that he was in a rental car because his own vehicle was being repaired.

The K-9 unit arrived as the officer completed the second warning citation. The drug dog conducted an open-air search around the vehicle and alerted to the presence of narcotics while the officer was in the process of calling in Moore’s driver’s license. The officer subsequently searched Moore’s vehicle and found the marijuana and cocaine for which he was ultimately charged and convicted.

On appeal, Moore argues that the officer impermissibly expanded the scope and duration of the stop by questioning him about matters unrelated to the traffic violations. We disagree.

On the issue of whether a stop has been unreasonably prolonged, we defer to the trial court’s determination unless the facts are truly egregious. See Hayes v. State, 292 Ga. App. 724, 729 (2) (c) (665 SE2d 422) (2008).

During a valid traffic stop, an officer may ask the driver questions wholly unrelated to the traffic stop or otherwise engage in “small talk” with the driver, so long as the questioning does not prolong the stop beyond the time reasonably required to complete the purpose of the traffic stop. A reasonable time to conduct a traffic stop includes the time necessary to verify the driver’s license, insurance, registration, and to complete any paperwork connected with the citation or a written warning. A reasonable time also includes the time necessary to run a computer check to determine whether there are any outstanding arrest warrants for the driver or the passengers.

(Citations and punctuation omitted.) Wilson v. State, 306 Ga. App. 286, 288 (2) (a) (702 SE2d 2) (2010). Moreover, an officer may use a drug sniffing dog to conduct an open-air search of a vehicle’s exterior during a valid traffic stop without implicating the Fourth Amendment, if the same is performed without unreasonably extending the stop. Langston v. State, 302 Ga. App. 541, 544 (691 SE2d 349) (2010).

Here, there is no dispute that the initial stop was authorized. Contrary to Moore’s claims, the purpose of the detention was not fulfilled when the officer indicated that he would only be giving Moore a warning citation. See Woodard v. State, 289 Ga. App. 643, 647 (1) (a) (658 SE2d 129) (2008). The officer was permitted to continue the detention while he verified Moore’s license, insurance, and registration, completed any paperwork, and checked for any outstanding warrants. See Wilson, supra, 306 Ga. App. at 288 (2) (a). The officer was also authorized to engage in small talk and question Moore about his itinerary while he completed the warning citations. Id.; see also Pitts v. State, 221 Ga. App. 309, 311 (2) (471 SE2d 270) (1996).

Decided May 21, 2013.

Sanford A. Wallack, for appellant.

Although Moore argues that the length of the stop — approximately 13 minutes ■— was unreasonable, the record shows that Moore’s own actions prevented the officer from completing the warning citations sooner. Notably, Moore exhibited increasing nervousness during the stop, and when Moore was asked to exit the vehicle, Moore immediately attempted to enter the officer’s patrol car. The officer testified that he could not focus solely on writing the citations because he was concerned about Moore’s extreme nervousness, and while he was engaging Moore in conversation, he was actively working on completing the warning citations. The officer also testified that the time it took him to complete the warning citations in this case was consistent with the duration of other stops where he issued multiple warning citations and the driver was exhibiting criminal indicators. We accept the trial court’s decision with regard to questions of fact and the officer’s credibility, and under the circumstances set forth above, the trial court did not clearly err in concluding that the stop was not unreasonably prolonged. See Hayes, 292 Ga. App. at 731 (2) (e) (ten-minute period police officer took to question defendant to evaluate defendant’s nervousness and complete warning citation did not unreasonably prolong traffic stop); see also Langston, supra, 302 Ga. App. at 545 (officer did not prolong stop in order to conduct an open air search because he had not yet received results of license check).

Since the stop was not unreasonably prolonged, we need not consider Moore’s argument that the officer lacked a reasonable suspicion to justify his detention. See Wilson, supra, 306 Ga. App. at 288 (2) (a) (“[S] o long as the traffic stop is not unreasonably prolonged, the officer does not need articulable suspicion of criminal activity in order to engage in unrelated questioning.”) (citation and punctuation omitted). Therefore, we affirm the trial court’s denial of Moore’s motion to suppress.

Judgment affirmed.

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

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.


text:
    A13A0405.
    HILL v. THE STATE.
    (743 SE2d 489)
   Miller, Judge.

Following a stipulated bench trial, Michael Jermaine Hill was convicted of possession of less than one ounce of marijuana (OCGA § 16-13-30 (j) (1)), driving with a suspended license (OCGA § 40-5-121 (a)), and driving a motor vehicle with improper registration (OCGA § 40-6-15 (a)). Hill appeals, contending that the trial court erred in denying his motion to suppress on the ground that the officer lacked sufficient justification to conduct the traffic stop. We discern no error and affirm.

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 should not be disturbed if there is any evidence to support them, and its decisions regarding questions of facts and credibility must be accepted unless clearly erroneous.

(Citation and punctuation omitted.) Warren v. State, 314 Ga. App. 477, 481 (3) (724 SE2d 404) (2012).

So viewed, the evidence shows that on August 9, 2010, a police officer was patrolling a two-lane highway in Fayette County in a patrol car equipped with License Plate Recognition (“LPR”) cameras. The LPR cameras automatically read license plate tags and reference the National Crime Information Center (“NCIC”) database to determine if a vehicle is stolen or if a missing or wanted person is connected to the vehicle. As the officer drove down the highway, the LPR system alerted to a vehicle on the opposite side of the highway, and the system gave the officer a “screen shot” of the vehicle’s tag. The screen shot showed the vehicle’s license number, the make and model of the vehicle — a black Nissan Sentra, where the vehicle was registered and information that a wanted person could be driving the vehicle.

The officer turned his vehicle around, got behind the Nissan Sentra and visually confirmed the tag number. The officer then gave the tag information to his dispatcher and conducted a traffic stop. When the officer approached the vehicle, Hill rolled down the window. The officer noticed a strong odor of burnt marijuana coming from inside the vehicle, and a small infant in the back seat. When the officer asked for Hill’s driver’s license, Hill informed the officer that his license was suspended. The dispatcher confirmed that the vehicle’s registration had been suspended, and that Hill was known to drive the vehicle, although he was not the registered owner.

The officer called for backup and arrested Hill for driving on a suspended license. The officer then asked for and received Hill’s consent to search the vehicle. During the search, the officer found a partially-smoked marijuana cigarette under the ashtray in the vehicle’s center console.

Hill was subsequently charged with possession of less than one ounce of marijuana, driving with a suspended license, and driving on an improper registration. Hill moved to suppress all evidence seized during the traffic stop on the basis that he committed no crime that would justify the stop, and any probable cause to detain him should have dissipated upon the officer’s discovery that he was not the vehicle’s owner. Following a hearing, the trial court denied Hill’s motion to suppress. The trial court specifically found that the LPR system provided the officer with a reasonable and articulable suspicion to believe that there was a wanted person in the vehicle which justified the stop.

In his sole enumeration of error, Hill contends that the traffic stop was not justified. We disagree.

Stopping and detaining a driver to check his license and registration is appropriate when an officer has a reasonable and articulable suspicion that the driver or the vehicle is subject to seizure for violation of the law. See Humphreys v. State, 304 Ga. App. 365, 366 (696 SE2d 400) (2010). Moreover, visual surveillance of vehicles in plain view does not constitute an unreasonable search for Fourth Amendment purposes, even if the surveillance is aided by an officer’s use of a license plate tag reader, because a defendant does not have a reasonable expectation of privacy in a plainly visible license plate. See Hernandez-Lopez v. State, 319 Ga. App. 662, 664 (1) (738 SE2d 116) (2013).

Decided May 21, 2013.

Thomas M. Martin, Jason M. Martin, for appellant.

Here, the officer based the stop on the information he received from the LPR system, as well as his personal observation of the vehicle’s tag to confirm that the LPR alerted to the correct tag number. The information from the LPR system was similar to the information an officer retrieves when running vehicle tag information through the Georgia Crime Information Center (“GCIC”). See Humphreys, supra, 304 Ga. App. at 367 (upholding an initial traffic stop based on information from the GCIC that the driver of the vehicle in question was possibly operating the vehicle with a suspended driver’s license).

Although the officer could not recall whether dispatch informed him that the vehicle’s registration was suspended before or after he approached the vehicle, the officer had reasonable articulable suspicion to conduct a traffic stop based on the alert and information the officer received from the LPR system showing that a wanted person could be driving the vehicle. See Hastings v. State, 211 Ga. App. 873, 874 (2) (441 SE2d 83) (1994) (ruling that information that a vehicle had been reported stolen provided sufficient articulable suspicion for a traffic stop, even though that information was later determined to be inaccurate); Self v. State, 245 Ga. App. 270, 274 (3) (a) (537 SE2d 723) (2000) (ruling that information showing that vehicle’s license plate was registered to another vehicle supported initial stop).

Since the officer had authority to initiate the stop, he was entitled to approach the vehicle and request Hill’s license. See Salmeron v. State, 280 Ga. 735, 737 (1) (632 SE2d 645) (2006). When Hill informed the officer that his license was suspended, the officer had probable cause to arrest him. See Grimes v. State, 303 Ga. App. 808, 811 (1) (a) (695 SE2d 294) (2010). Moreover, Hill consented to the search of the vehicle. Accordingly, the trial court did not clearly err in denying Hill’s motion to suppress.

Judgment affirmed.

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

JamieK. Inagawa, Solicitor-General, JosephB. Myers, Jr., Assistant Solicitor-General, for appellee.

       We note that, at the hearing on Hill’s motion to suppress, the issue of whether the LPR system can he utilized to perform random checks of motorists otherwise lawfully driving on the roadway was neither raised nor addressed.

       See also New York v. Class, 475 U. S. 106, 114 (III) (B) (106 SCt 960, 89 LE2d 81) (1986) (there is no reasonable expectation of privacy in objects which are required by law to be placed in plain view from the exterior of an automobile); United States v. Wilcox, 415 Fed. Appx. 990, 992 (II) (11th Cir. 2011) (visual surveillance of vehicles in plain view does not constitute an unreasonable search).

       See also Rodriguez v. State, 321 Ga. App. 619, 621, n. 1 (746 SE2d 366) (2013) (per curiam decision noting that LPR system information connecting wanted person with vehicle authorized traffic stop). Compare State v. Dixson, 280 Ga. App. 260, 263 (633 SE2d 636) (2006) (holding that database information showing that vehicle’s insurance status was unknown did not create reasonable suspicion of criminal activity because law enforcement cannot stop a vehicle solely to check its insured status).


author: McMlLLIAN, Judge.

text:
    A13A0612.
    LAKEVIEW BEHAVIORAL HEALTH SYSTEM, LLC v. UHS PEACHFORD, LP et al.
    (743 SE2d 492)
   McMlLLIAN, Judge.

Lakeview Behavioral Health System, LLC appeals the superior court’s denial of its request for attorney fees pursuant to OCGA § 31-6-44.1 (c). Lakeview sought to recover its fees after it successfully defended a challenge by UHS Peachford, LP d/b/a Peachford Behavioral Health System of Atlanta and UHS of Summitridge, LLC d/b/a Summitridge Hospital (collectively “UHS”) to a certificate of need (“CON”) for a new acute care psychiatric and substance abuse hospital issued to it by the Georgia Department of Community Health (“DCH”). In this case of first impression, we reverse for the reasons set forth below.

UHS opposed Lakeview’s CON from the beginning, filing an opposition to Lakeview’s application for the CON in the initial administrative proceeding. After the DCH made its initial decision to grant the CON, UHS appealed to the Certificate of Need Appeal Panel (the “Appeal Panel”), which affirmed the initial DCH decision. The DCH subsequently issued its final order affirming the decision of the Appeal Panel, and UHS petitioned for judicial review in the Superior Court of Fulton County.

UHS contended in its petition that the DCH should have deferred to policy set by the Department of Behavioral Health and Developmental Disabilities (“DBHDD”) that focuses on outpatient treatment for public mental health patients. UHS argued that the DCH’s grant of a CON to Lakeview to establish a new psychiatric hospital was impermissible because it was based, in part, on consideration of hospital bed space for public mental health patients. Thus, UHS asserted that the DCH’s decision “fails to give deference or even to recognize the policy decision of the State agency charged with assuring the availability of mental health services to public sector patients,” and instead “contradicts [the DBHDD’s] explicit policy and may undermine its underlying objectives.” UHS asserted that “a sharp, irreconcilable conflict” existed between the DBHDD’s policy, and the DCH’s final decision, which made “a flawed assessment of need based on a patent misread of the [DBHDD’s] policies.” UHS contended that this conflict is contrary to the regulatory framework for public mental health services that the legislature has established. Aside from this “dispositive legal issue,” UHS asserted that the DCH decision was otherwise legally erroneous, not supported by substantial evidence and arbitrary and capricious.

The superior court’s April 13, 2012 order found in favor of Lakeview and the DCH on these issues, and Lakeview subsequently filed a motion for attorney fees under OCGA § 31-6-44.1 (c), which provides:

A party responding to an appeal to the superior court shall be entitled to reasonable attorney’s fees and costs if such party is the prevailing party of such appeal as decided by final order; provided, however, the department shall not be required to pay attorney’s fees or costs. This subsection shall not apply to the portion of attorney’s fees accrued on behalf of a party responding to or bringing a challenge to the department’s authority to enact a rule or regulation or the department’s jurisdiction or another challenge that could not have been raised in the administrative proceeding.

OCGA § 31-6-44.1 (c). Under the language of the statute, therefore, a party who successfully defeats a challenge to a CON in superior court is entitled to an award of attorney fees unless the challenge fits into one of the three listed exceptions. See Review of Selected 2008 Georgia Legislation, 25 Ga. St. Univ. L. Rev. 219, 245 (2008) (reviewing health-related legislation).

The superior court denied Lakeview’s motion for attorney fees, finding that UHS’s challenge fit into the jurisdictional exception under OCGA § 31-6-44.1 (c):

UHS’s entire challenge has been that DCH exceeded its jurisdiction by acting in conflict with the policies of DBHDD, the agency charged with administering and providing mental health services to public sector patients in Georgia and by disregarding its statutory and regulatory obligations to require [ ] Lakeview to show actual numerical need for the proposed project before granting the CON.

The superior court concluded that “[bjecause the heart of UHS’s challenge focused on the DCH’s disregard for its own authority, this Court finds that this case is specifically exempted from the award of attorney fees under OCGA § 31-6-44.1 (c).”

As its sole enumeration on appeal, Lakeview asserts that the superior court erred in holding that UHS’s petition for judicial review fit into the jurisdictional exception under OCGA § 31-6-44.1 (c) because UHS’s challenge to the CON was not a challenge to the DCH’s jurisdiction within the meaning of the statute.

1. We must first consider the superior court’s interpretation of OCGA § 31-6-44.1 (c), to which we apply a de novo review. Kennedy Dev. Co. v. Camp, 290 Ga. 257, 258 (719 SE2d 442) (2011). In construing OCGA § 31-6-44.1 (c), “we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” (Citation and punctuation omitted.) Currid v. DeKalb State Court Probate Dept., 285 Ga. 184, 187 (674 SE2d 894) (2009). Thus, “a statute should be read according to its natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation.” (Citation omitted.) Apollo Travel Svcs. v. Gwinnett County Bd. of Tax Assessors, 230 Ga. App. 790, 792 (3) (498 SE2d 297) (1998).

Here, OCGA § 31-6-44.1 (c) sets out three exceptions to the mandatory award of attorney fees, stating that no fees are recoverable for challenges to “[1] the [DCH’s] authority to enact a rule or regulation or [2] the [DCH’s] jurisdiction or [3] another challenge that could not have been raised in the administrative proceeding.” The trial court found that UHS’s challenge fell under the second exception involving challenges to the DCH’s jurisdiction, and UHS does not contend that the other two exceptions apply. Accordingly, we must first determine what the legislature meant by the “jurisdiction” of the DCH.

Lakeview argues that we should interpret the term “jurisdiction” in this context as comparable to a court’s subject matter jurisdiction, which the Supreme Court of Georgia has defined as “jurisdiction of the class of cases to which that particular case belongs” and not “jurisdiction of the particular case then occupying the attention of the court.” (Citation and punctuation omitted.) Hopkins v. Hopkins, 237 Ga. 845, 846 (1) (229 SE2d 751) (1976). Lakeview asserts that because UHS never argued that the DCH lacked jurisdiction to rule upon Lakeview’s application for the CON, it never raised a jurisdictional challenge. Lakeview also argues that the trial court’s expansive definition of the term “jurisdiction” as applying to any challenge to DCH’s authority would undermine the mandatory fee provision, allowing the exception to swallow the rule.

UHS counters that Lakeview’s suggested definition would render the jurisdiction exception meaningless because it posits that no one would ever challenge the DCH’s clear authority to issue CONs. UHS argues, instead, that it challenged the DCH’s jurisdiction when it asserted that the DCH did not have the authority to grant the CON in this case because that decision “necessarily intruded upon and conflicted with the jurisdictional purview of DBHDD.” UHS, therefore, equates the DCH’s authority with “jurisdiction” and asks us to interpret OCGA § 31-6-44.1 (c) as precluding any award of attorney fees because UHS objected to the issuance of the CON on the ground that the DCH exceeded its authority by acting in conflict with the policy of the DBHDD.

In resolving this issue, we turn to the language of the statute. The legislature provided an exception for challenges to the DCH’s “jurisdiction,” and we must presume that the legislature’s use of that term “was a matter of considered choice.” (Citation and punctuation omitted.) Deutsche Bank Nat. Trust Co. v. JP Morgan Chase Bank, N.A., 307 Ga. App. 307, 311 (1) (b) (704 SE2d 823) (2010). Thus, we presume the legislature intended to provide an exception to the mandatory award of fees for challenges to the DCH’s jurisdiction. See Citibank (South Dakota), N.A. v. Graham, 315 Ga. App. 120, 121-122 (1) (726 SE2d 617) (2012) (in interpreting statutes, courts must presume that legislature “meant what it said and said what it meant”) (citation and punctuation omitted).

In contrast, the legislature’s first exception to the mandatory fee award under OCGA § 31-6-44.1 (c) precludes an attorney fee award when a party challenges “the [DCH’s] authority to enact a rule or regulation.” (Emphasis supplied.) The legislature’s word usage in these provisions suggests that the legislature intended the DCH’s “jurisdiction” to mean something different than its authority. A review of OCGA § 31-6-44.1 as a whole supports this conclusion. Under OCGA § 31-6-44.1 (a) (2), for example, a trial court may reverse or modify the final administrative decision on a CON if the conclusions contained in the final decision are “[in] excess of the statutory authority of the [DCH].” (Emphasis supplied.) Therefore, if the legislature had intended to provide an exception to the mandatory attorney fee award for challenges asserting that the DCH acted “in excess of [its] statutory authority,” it clearly had the language to do so and, in fact, chose to create an exception for challenges to the DCH’s “authority” to enact a rule or regulation. The legislature then chose to enact an additional exception for challenges to the DCH’s “jurisdiction.”

And although “jurisdiction” is not defined in this context, the legislature also used the term in addressing the appeal procedure before the Appeal Panel. Under OCGA § 31-6-44 (k) (1), the commissioner of community health may either accept the Appeal Panel’s decision or “reject or modify the conclusions of law over which the department has substantive jurisdiction and the interpretation of administrative rules over which it has substantive jurisdiction.” (Emphasis supplied.) The use of “jurisdiction” in this provision suggests that the legislature intended the term to refer to matters over which the DCH has the power to act and thus to something broader than the DCH’s authority in a particular case.

Construing these statutory provisions together, we conclude that the legislature used the term “jurisdiction” in OCGA § 31-6-44.1 (c)to refer to the DCH’s general power to act and not to its authority to act with regard to a particular CON. See generally Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 579 (1) (707 SE2d 921) (2011) (statutes must be construed in relation to other statutes in the same statutory scheme, and “all statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized whenever possible, so as to ascertain the legislative intendment and give effect thereto”) (citations and punctuation omitted).

Such a distinction between “jurisdiction” and “authority” is supported by the Supreme Court’s decision in Ga. Dept. of Community Health v. Ga. Society of Ambulatory Surgery Centers, 290 Ga. 628 (724 SE2d 386) (2012), which addressed a somewhat analogous exception to the exhaustion of remedies doctrine. In that case, the Supreme Court of Georgia considered whether this Court had properly addressed the merits of the Georgia Society of Ambulatory Surgery Centers’ (GSASC) appeal even though it failed to exhaust its administrative remedies. GSASC asserted that the DCH exceeded its authority in asking certain questions on a statutorily required annual survey. This Court had addressed the merits of GSASC’s argument despite its failure to exhaust the administrative process, in part, because the Court determined that GSASC was challenging the DCH’s authority and power to act, which falls within a recognized exception to the exhaustion requirement. Ga. Society of Ambulatory Surgery Centers v. Ga. Dept. of Community Health, 309 Ga. App. 31, 39-40 (2) (b) (710 SE2d 183) (2011). But the Supreme Court reversed, finding that the exception does not apply unless a plaintiff is attacking the agency’s assertion of jurisdiction on its face or in its entirety, and thus the allegations must be that the agency acted “wholly outside its jurisdiction” in order to avoid the exhaustion requirement. Ga. Dept. of Community Health, 290 Ga. at 631 (2). The Supreme Court concluded that GSASC’s claim that the agency merely acted ultra vires was insufficient to avoid the exhaustion requirement. Id. See also We, the Taxpayers v. Bd. of Tax Assessors of Effingham County, 292 Ga. 31, 34 (1) (734 SE2d 373) (2012) (no challenge to the board’s jurisdiction where “there is no question that the properties for which the Board has issued tax assessments are subject to the Board’s authority to do so”); City of Atlanta v. Hotels.com, L.P., 285 Ga. 231, 233 (674 SE2d 898) (2009) (exhaustion of remedies does not apply where challenge goes to the applicability of tax ordinance); Cravey v. Southeastern Underwriters Assn., 214 Ga. 450, 457 (3) (105 SE2d 497) (1958) (exhaustion doctrine “does not apply where the defect urged by the complaining party goes to the jurisdiction or power of the [involved] agency to issue [a decision]”).

We find, therefore, that the legislature used the term “jurisdiction” under OCGA § 31-6-44.1 (c) because it intended to refer to something other than a challenge asserting that the DCH exceeded its statutory authority or acted ultra vires in issuing a particular decision; rather, we conclude that the legislature intended the second exception to encompass challenges to the DCH’s jurisdiction as a whole. In other words, a jurisdictional challenge questions whether the DCH can act, not how it acted.

Decided May 21, 2013

Batch & Bingham, Adrienne E. Marting, Michael J. Bowers, Joshua M. Moore, for appellant.

2. Next, we must determine whether UHS’s challenge to the Lakeview CON fell within the jurisdictional exception under OCGA § 31-6-44.1. This determination presents a legal question, and thus “[owing] no deference to the trial court’s ruling[, we] apply the ‘plain legal error’ standard of review.” (Citation omitted.) Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

Lakeview argues that because UHS did not assert that the DCH acted wholly outside its jurisdiction, but rather merely asserted that it acted ultra vires in issuing the CON to Lakeview, UHS did not raise a jurisdictional challenge. We agree. UHS did not assert that the DCH lacked the jurisdiction to issue Lakeview a CON for a new, private psychiatric and substance abuse hospital. Rather, UHS argued that the DCH’s decision on Lakeview’s CON conflicted with the DBHDD policy on treating public mental health patients. This argument, which in effect, asserts that the DCH exceeded its authority in approving the CON, does not present a challenge to the DCH’s jurisdiction within the meaning of OCGA § 31-6-44.1 (c). Accordingly, because the trial court erred in denying Lakeview’s motion for attorney fees on this basis, we reverse the trial court’s denial of Lakeview’s motion and remand for the trial court’s determination of the amount of reasonable attorney fees to be awarded to Lakeview.

Judgment reversed.

Andrews, P. J., and Barnes, P. J., concur.

Morris, Manning & Martin, Robert C. Threlkeld, Dana S. Durrett, Holly A. Pierson, for appellees.

       The DBHDD is the agency charged by the Georgia legislature with administering and supervising state programs for mental health, developmental diseases and addictive diseases. OCGA § 37-1-20. In comparison, the legislature granted the DCH the authority “to administer the certificate of need program established [by state law] and, within the appropriations made available... by the General Assembly of Georgia and consistently with the laws of the State of Georgia, a state health plan adopted by the [Board of Community Health].” OCGA § 31-6-21 (a).

       OCGA§ 31-6-44.1 (c) became effective on July 1, 2008, and applies to applications submitted on or after that date.

       The mandatory fee award appears to have been the subject of some debate within the House Special Committee on Certificate of Need and the resulting statutory provisions apparently resulted from legislative compromise on the issue. See Review of Selected 2008 Georgia Legislation, 25 Ga. St. Univ. L. Rev. at 244-245.

       Numerous other statutes relating the CON program also address the “authority of the DCH. See OCGA § 31-6-40.1 (c.1) (3) (granting the DCH “the authority to inspect any books, records, papers or other information” of a destination cancer hospital to confirm information contained in the hospital’s annual statement); OCGA § 31-6-40.2 (d) (providing that “[n]othing in [the] Code section shall limit the [DCH’s] authority to regulate perinatal services in ways or for time periods not addressed by the... Code section”); OCGA § 31-6-42 (c) (granting the DCH “the authority to vary or modify strict adherence to the provisions of this chapter and the rules enacted pursuant hereto in considering the special needs of such facility and its population served and to avoid an adverse impact on the facility and the population served thereby with regard to minority administered hospitals); OCGA § 31-6-45 (e) (granting the DCH “the authority to make public or private investigations or examinations inside or outside of this state to determine whether [any law, rule, regulation or order under OCGA §] 31-6-40 has been violated” and “the authority... to require the production of any books, records, papers, or other information” relating to any CON issue) (emphasis supplied in each statute).

       See also Higdon v. City of Senoia, 273 Ga. 83, 86 (3) (538 SE2d 39) (2000) (“All statutes are presumed to be enacted with full knowledge of existing law and their meaning and effect is to be determined with reference to the constitution as well as other statutes and decisions of the courts”) (citation omitted).

       Our interpretation of the jurisdictional exception under OCGA § 31-6-44.1 (c) does not render the provision mere surplusage. It is conceivable, for example, that if an exemption from the CON requirements under OCGA § 31-6-47 does not clearly apply, an applicant, out of an abundance of caution, could seek a CON but also assert that it should not be subject to the CON requirements under the statutory exemptions. The latter argument would present a challenge to DCH’s jurisdiction.

       Indeed, psychiatric and substance abuse hospitals are not among the facilities exempted from the CON requirements under Georgia law, OCGA § 31-6-47 (a), and the DCH has adopted specific rules addressing CONs for such facilities. See Ga. Comp. R. & Regs., r. 111-2-2-.1 (1) (a) (7) and 111-2-2-.26.


text:
    A13A0779.
    In the Interest of S. M. et al., children.
    (743 SE2d 497)
   McMlLLIAN, Judge.

The mother of S. M., T. S. and B. S. appeals the juvenile court’s order finding the children to be deprived and placing them in the temporary custody of the Department of Family and Children Services (“DFACS”). We reverse because we find that the record lacks clear and convincing evidence to support the trial court’s determination that the children were deprived within the meaning of OCGA § 15-11-2 (8) (A).

In considering an appeal from the juvenile court’s deprivation order, we review the evidence from the juvenile court hearings in the light most favorable to the court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the children were deprived.

(Citation and punctuation omitted.) In the Interest of D. W., 318 Ga. App. 725 (734 SE2d 543) (2012).

The juvenile court entered orders for shelter care for each of the children on August 29, 2012, in response to complaints filed by DFACS, which alleged that the mother’s live-in boyfriend had pulled a gun on the mother and hit her with an object. The orders indicate the children reported that other instances of domestic violence had occurred, that the boyfriend was often physically aggressive toward them, and that he was frequently intoxicated. DFACS filed a deprivation petition on September 4, 2012, and the next day, following a hearing, the juvenile court issued an order finding probable cause that the children were deprived. The order transferred custody of the children to DFACS, pending an adjudicatory hearing. The juvenile court conducted the adjudicatory hearing on DFACS’ deprivation petition on September 27, 2012.

At the hearing, Amber Jones, a counselor at the elementary school attended by S. M. and T. S., testified that on the morning of August 29, 2012, she was contacted by an assistant principal who indicated that S. M. had reported that her “father” had pulled a gun on her mother that morning. Jones spoke with S. M., who said that as they were getting ready for school, her parents were arguing. At some point, her “father” pulled out a gun from beside the gray couch, where he kept it, and pointed it at her mother. He then instructed S. M. and T. S. to get in the car so he could take them to the school bus stop. While the children waited in the car, S. M. heard a gunshot and she did not know whether her mother was alive or dead. Jones then went to T. S.’s classroom to ask how she was doing. T. S. responded that her “father” had pulled a gun on her mother that morning. Jones observed that both girls appeared to be upset. Jones notified the sheriff’s department about the girls’ statements in order to determine whether the mother was okay.

Jones had made a previous referral to DFACS the year before, concerning the girl’s continuous, “pretty severe” issues with hygiene. Jones spoke with the girls about how to bathe and on one occasion sent soap home with S. M., who told Jones they did not have soap at home because sometimes her “father” got mad and threw soap around. Jones also noted in her DFACS report that S. M. had told her about an incident, in which her younger brother, who was not in a car seat, had tried to open the car door, which led to a wreck involving the police.

Wendy Bearden, S. M.’s first grade teacher, testified that S. M. told her first thing on the morning of August 29, 2012 that her “daddy’s going to kill my mama when I go to school today.” She also said that her “father” had hit her mother with her breakable baby doll, but she did not mention a gun. Bearden said that the situation was worrying S. M., and she acted afraid until she was reassured that her mother was okay.

Bearden also said that S. M. frequently asked to go to the school nurse, because she appeared to like the individual attention the nurse would provide. Bearden stated that due to a “small odor,” the school had previously sent shampoo home with S. M. and T. S. “so that they could shampoo their hair and take better care of themselves.”

S. M., who was seven, testified that she was not allowed to call her mother’s boyfriend by his name, so she called him her “dad” instead. During S. M.’s testimony, the attorney for DFACS asked how her mother’s boyfriend treated her, and she replied that “sometimes” he is good. She said that her mother told her that the boyfriend had bought her brother a four-wheeler and that S. M. and her sister would be getting dolls and a puppy. When the attorney began to question S. M. about the four-wheeler and the dolls, she volunteered, “It’s the truth. My dad, he don’t have no gun.” S. M. said that her mother told her that she was in court that day to tell the truth that her “dad” did not have a gun. She said that her “dad” used to have a gun that he kept beside the gray couch, but when she saw her mother at the doctor’s office (after she went into DFACS’ custody) her mother told her that they had given the gun away. At one point, S. M. admitted telling Jones about the gun, but later denied doing so. She also said that she heard a gunshot but said she heard it when she was in bed the night before. S. M. said that her “dad” did not hurt her mother, but another man did. She also said that her mother and “dad” never fought.

T. S., who was six, testified that S. M. “told a fib” when she said the boyfriend pointed a gun at her mother, and S. M. told T. S. to tell “a fib” about it. T. S. told her teacher that the boyfriend had pointed the gun, but that was not true. T. S. said she was in court at the hearing because S. M. told “a fib.” She said her mother told her at the doctor’s office that she would get to see a puppy when she got to go home.

Lieutenant Stephens of the Whitfield County Sheriff’s Department testified that on August 29, 2012, another officer and he responded to the children’s report about a gunshot at the mother’s home. When he arrived, the mother was there with a small child. When Stephens asked the mother what had happened, she said “just a small argument, nothing to it.” The officers did not observe anything out of the ordinary when they checked the house. The officers did not even file a report because they believed the allegations were unfounded.

The mother testified and denied that her boyfriend had pulled a gun the morning of August 29, 2012. She asserted that the boyfriend and she were not even arguing that morning. The mother said that S. M. had a habit of making up stories, and she speculated that S. M. “put [T. S.] up to saying” that the boyfriend had pulled a gun, probably because S. M. did not want to go to school that day. The mother said that T. S. recanted her story that morning when the mother went to the school. She also said that the only gun the boyfriend had was an antique BB gun that had belonged to his father, which was not operable. The mother said he kept that gun up in a closet, away from the children.

The mother, who did not work, had lived with the boyfriend for four to five years at the time of the hearing. He supported the family as a diesel mechanic, and the mother had no other way to support her children at that time, although she believed she could get a job if needed. The family did not receive food stamps, and the only public assistance they received was Medicaid for the children. The mother stated that she was unaware of any hygiene issues with her girls; she said the girls took daily baths, always had clean clothes and brushed their hair.

In his testimony, the boyfriend acknowledged that he had a prior criminal record, including several charges of domestic violence involving his ex-wife. But he said that he no longer drank and that the mother and he had no problems. Because the boyfriend had a prior felony conviction for possession of a firearm, he did. not keep a firearm in his house, although he kept his father’s old BB gun in the closet. He said that no argument occurred between the children’s mother and him on the morning of August 29, 2012 and that he did not pull a gun on her. The boyfriend said that S. M. had previously pretended to be sick to get out of school.

At the close of the evidence, the guardian ad litem cited the gravity of the children’s allegations, the conversation between the mother and children at the doctor’s office since the incident, and the discrepancies in the evidence in expressing her concern for the children’s safety if they were returned to the home.

The juvenile court subsequently entered a “Provisional Temporary Placement Order” finding the children to be deprived and granting DFACS temporary legal custody. The juvenile court based its order of deprivation on its evidentiary finding that the mother repeatedly perjured herself, noting that both the mother and the boyfriend had denied “so much as an argument occurred that morning,” which “contradict [ed] what the mother told the law enforcement officer dispatched to the residence” on the morning of the incident. The juvenile court further found that the mother perjured herself “about the events of the day in question,” “about the events at the doctor’s office visit [ ] when she saw the children,” “about where in the home the gun was located,” and “about the hygiene issues with the children.” Thus discounting the mother’s testimony, the juvenile court found that “[the boyfriend] and the mother argued, he pulled a gun on her, and the children believed they heard a gunshot after they were made to leave the home[ ] and went to school not knowing whether or not their mother had been shot.” The court found that keeping the children in the home would be contrary to their welfare based upon these events and the fact the mother denies that they happened, placing the children in danger if they returned.

Under Georgia law, a deprived child is a child who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). “In determining whether a child is deprived, the court focuses on the needs of the child rather than parental fault.” In the Interest of J. H., 310 Ga. App. 401, 401-402 (713 SE2d 472) (2011). And where, as here, the children already were in DFACS’ custody, “the correct inquiry [for the juvenile court was] whether the children would be deprived if returned to the parent’s care and control as of the date of the hearing.” (Citation omitted; emphasis in original.) In the Interest of C. H., 305 Ga. App. 549, 559 (2) (a) (700 SE2d 203) (2010).

But even after finding a child to be deprived, a juvenile court can only remove a child from a parent’s custody if it finds that “the deprivation resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” In the Interest of J. H., 310 Ga. App. at 402. And “[p]roof of unfitness must be shown by clear and convincing evidence; this standard recognizes the importance of the familial bond and helps eliminate the risk that a factfinder might base his determination on a few isolated instances of unusual conduct or idiosyncratic behavior.” (Citation and punctuation omitted.) In the Interest of C. L. Z., 283 Ga. App. 247, 249 (641 SE2d 243) (2007).

We find the case of In the Interest of C. L. Z. to be instructive on the issue of parental unfitness. There, several witnesses in a public parking lot observed C. L. Z.’s grandmother, who was her guardian, yelling at her, tying a sweater over the child’s eyes as a blindfold, pushing the back of her head to make her turn around, and in the process, pushing her face into the side of a car. In the Interest of C. L. Z., 283 Ga. App. at 247-248. Following this incident, the juvenile court adjudicated C. L. Z. as a deprived child, but this Court reversed, noting that the parking lot incident was “[t]he only incident of physical and emotional abuse cited by the juvenile court.” Id. at 249. Moreover, “[o]ther than testimony that C. L. Z. was crying, the State offered no evidence that she suffered any emotional or physical harm from the incident,” nor did the State present any evidence to show that the grandmother had mental, emotional or anger issues. (Footnote omitted.) Id.

Thus, the Court found that “[t]he evidence presented did not show that this was anything other than an isolated, albeit highly inappropriate, outburst by the grandmother.” The Court concluded that “[w]hile [it could not] say that these facts would never merit a finding of deprivation, under these circumstances, where the State has failed to demonstrate harm to [the child], clear and convincing evidence of deprivation has not been established.” (Citation omitted.) In the Interest of C. L. Z., 283 Ga. App. at 249. See also In the Interest of H. S., 285 Ga. App. 839, 842-843 (648 SE2d 143) (2007) (reversing deprivation finding where child witnessed one incident of domestic violence between mother and father during which the father grabbed child’s arm and father had hit child on the head on “a couple” of other occasions when she ran through the house, but no evidence these incidents had a negative impact on child); In the Interest of T. L., 269 Ga. App. 842, 843-846 (2) (605 SE2d 432) (2004) (reversing finding of deprivation in absence of evidence showing how child was negatively impacted by “filthy” and cluttered conditions in home); In the Interest of M. L. C., 249 Ga. App. 435, 436-439 (2) (548 SE2d 137) (2001) (reversing finding of deprivation where parents admitted to substance abuse, depression, and incidents of domestic violence but no evidence presented showing adverse impact on child, and neighbors testified that they were “wonderful” parents).

In this case, discounting the mother’s testimony and adopting the trial court’s factual findings, the record demonstrates only a single, “albeit highly inappropriate” incident in which two of the children observed the boyfriend pull a gun on the mother and believed that they heard a gunshot. As a result, they went to school not knowing whether their mother was alive or dead. No evidence was presented that B. S., the third child, was even aware of the incident. Other than evidence that S. M. and T. S. were understandably upset that morning at school, the State provided no evidence that the children suffered any emotional or physical harm from the incident or that it had any other effect on them. Although some evidence existed of physical abuse between the boyfriend and his ex-wife, and Jones said that S. M. told her that the boyfriend had been angry and intoxicated on prior occasions, the State presented no evidence of any other instances of physical abuse between the boyfriend and the mother. Notably, the State presented absolutely no evidence of any physical, emotional or mental abuse of the children. And even though the trial court further found that the mother lied on the stand and failed to admit that the incident had occurred, the State failed to demonstrate how such behavior in the court proceedings would negatively impact the children if they were returned to the mother’s home.

Decided May 21, 2013.

Joshua J. Smith, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Bruce A. Kling, for appellee.

Thus, even viewing the record in the light most favorable to the trial court’s finding of deprivation and acknowledging the serious nature of the incident at issue, we find that the record in this case lacks clear and convincing evidence to support the trial court’s finding that the children were deprived within the meaning of the law.

Judgment reversed.

Andrews, P. J., and Dillard, J., concur.

       The boyfriend is not the biological father of any of the children.

       The mother testified that when the children referred to their “father,” they meant her live-in boyfriend.

       S. M. said the gunshot occurred when a neighbor shot a bear in the woods, and one of her neighbors died. On cross-examination, she said that when the gunshot occurred, her mother was lying on the ground, covered with grass and bleeding, and a tornado was coming. She then said that someone “metal” tried to eat her mother and she kicked them.

       Although the girls’ school made a referral to DFACS one year earlier due to their hygiene issues, the record contains no evidence that DFACS investigated or opened a case on the family at that time.

       We note that the evidence at the hearing did not support the juvenile court’s findings in the shelter care orders of other instances of domestic violence or physical aggressiveness.

       Although the evidence suggested that the mother may have tried to influence her children’s testimony with the promise of dolls and a puppy, the juvenile court made no findings in this regard and did not rely upon this evidence (other than noting that the mother had lied about it) in making its finding of deprivation.


author: DOYLE, Presiding Judge.

text:
    A13A0322.
    CHAE et al. v. SAEHAN BANK.
    (742 SE2d 169)
   DOYLE, Presiding Judge.

Darren Oaknam Chae and Jin Chae appeal from the grant of summary judgment to Saehan Bank in its suit on a promissory note and guaranties. They argue that the trial court erred because (1) it failed to hold a hearing, (2) the summary judgment motion improperly named the parties, (3) genuine issues of fact remain as to fraudulent inducement, (4) factual issues remain as to the adequacy of the proceeds of the sale of the collateral, and (5) the Bank lacks standing. Discerning no error, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the undisputed record shows that in April 2007, Captain Fish Market, Inc. (“Captain”), executed a promissory note in favor of Saehan Bank, evincing a debt of $385,000 in principal with an annual interest rate of 8.75 percent. As collateral for the note, Captain also executed a deed conveying a security interest to the Bank in certain property in Coweta County. Finally, Darren and Jin Chae each executed unconditional guaranties of the debt on the note.

The debts went into default, and in 2010 the Bank foreclosed on the property and sold it at a public auction, at which the Bank was the highest bidder, for $252,000. The Bank reported the sale to the Superior Court of Coweta County, which issued an order in January 2011 confirming the sale and adjudging a deficiency of $176,514.33. That order was not appealed.

In November 2011, the Bank filed the present action against Captain and the Chaes in the Superior Court of Fulton County, seeking payment for the deficiency balance. The defendants filed an answer and counterclaim, admitting that they executed the respective loan documents, but challenging the foreclosure proceedings.

The Bank moved to dismiss the counterclaim, which motion was granted. After their counsel withdrew, the Chaes filed pro se motions to set aside the foreclosure sale. Thereafter, the Bank moved for summary judgment, outlining the propriety of the foreclosure and confirmation proceedings. The trial court granted the motion, giving rise to this appeal.

1. The Chaes argue that they were deprived of due process because the trial court granted the summary judgment motion without a hearing and did not allow them to submit evidence. This argument lacks merit.

OCGA § 9-11-56 (c) provides that the motion for summary judgment shall be served at least 30 days “before the time fixed for the hearing.” Uniform Superior Court Rule 6.3 states that all motions in civil actions, including motions for summary judgment “shall be decided by the court without oral hearing” unless otherwise ordered by the court or “upon written request made in a separate pleading bearing the caption of the case and entitled ‘Request for Oral Hearing’... filed with the motion for summary judgment or ... not later than five (5) days after the time for response.” The rule and the statute work together consistently. The statute contemplates but does not mandate a hearing. The rule fixes the method parties use to obtain a hearing. All a party need do is make a written request for oral argument and it shall be held. Since the record appendix submitted to this Court by the parties does not contain [such] a request for oral hearing, the trial court was not required to hear oral argument on the motion prior to ruling on it.

2. The Chaes next contend that the trial court erred by granting summary judgment as to all defendants because the motion requested summary judgment as to Captain but failed to seek it as to the Chaes. The record shows that the motion contained the proper style referring to all three defendants, but it pleaded as follows: “COMES NOW Plaintiff Saehan Bank (“Saehan”) and moves the Court to grant summary judgment as to Defendant Captain Fish... on the grounds that there are no genuine issues of material fact and therefore Plaintiff is entitled to judgment as a matter of law.” The motion refers to “Defendant” in the singular, but it was served on all three defendants, and the Chaes responded individually.

A trial court may grant summary judgment sua sponte under certain circumstances, so long as it ensures that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. While in most cases it is better practice to await a motion for summary judgment before entering it for a party, it may not be erroneous under the circumstances of a given case, where the issues are the same as those involved in the movant’s motion.

Here, the record shows that the issues developed in determining Captain’s liability were essentially the same as those in adjudicating the Chaes’ liability. The Chaes were not surprised by the summary judgment motion, and they were allowed to and did submit lengthy individual defenses to the motion. Based on the record before us, we discern no reversible error in the trial court’s procedure used to grant summary judgment against the Chaes.

3. The Chaes also argue that factual issues remain as to fraudulent inducement and duress. Other than to quote case law concerning the formation of one agreement by simultaneous execution of two or more agreements, they offer no cogent argument supporting a defense of duress or fraud. The Chaes admitted in pleadings that they executed the documents, and they point to no other factual basis supporting fraud or duress.

One cannot claim to be defrauded about a matter equally open to the observation of all parties where[, as here,] no special relationship or trust or confidence exists. Further, in the absence of special circumstances [,] one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud. One not prevented from reading the contract, and having the capacity and opportunity to do so, cannot after signing it claim he was fraudulently induced to sign by promises which contradict the express terms of the contract.

Therefore, this enumeration presents no basis for reversal.

4. The Chaes contend that factual issues remain as to the amount received from the foreclosure auction and whether the Bank met its alleged obligation to hold as many sales as needed until the entire indebtedness is paid. The Chaes focus on the following language found in the security deed: “Power of Sale. Lender may sell the Property, or any part thereof or any interest therein, separately, at Lender’s discretion, with or without taking possession thereof, at public sale... Lender may hold one or more sales hereunder until the Indebtedness has been satisfied in full.” Based on this language, the Chaes argue that the Bank is required to keep re-selling the property until their debt is satisfied. But this interpretation misreads the language in the deed, which allows the Bank to dispose of the property at its discretion, and having already sold the entire property once, the Bank is not required to apply the proceeds of any subsequent sale to the indebtedness. This argument also fails because, in their unconditional guaranties, the Chaes waived any right to require the Bank to pursue any particular remedy within the Bank’s power.

The Chaes also appear to assert that the property’s original purchase price should be considered auction proceeds along with those of the public sale, rendering a surplus of $252,000, which they are due in addition to canceling their debt. This mathematical contrivance is contrary to the language of the plain language of the security deed, and it is therefore unavailing.

5. Finally, the Chaes argue that the Bank lacks standing to bring its complaint. This is belied by the loan documents that the Chaes concede they signed. The loan documents show that the Bank is the lender on the note, the lender on the guaranties, and the holder of the security deeds. Under these circumstances, the Bank has standing to pursue its suit on the unpaid debt.

Decided May 6, 2013

Reconsideration denied May 22, 2013.

Darren O. Chae, pro se.

Jin Chae, pro se.

Joseph A. Zdrilich, Claire D. Lim, for appellee.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Citation and punctuation omitted.) Royal v. Blackwell, 289 Ga. 473, 478 (2) (c) (712 SE2d 815) (2011).

       (Punctuation omitted.) Zions First Nat. Bank v. Macke, 316 Ga. App. 744, 754 (5) (730 SE2d 462) (2012).

       (Punctuation omitted.) Megel v. Donaldson, 288 Ga. App. 510, 514 (2) (654 SE2d 656) (2007).

       See OCGA § 9-2-20 (a) (“As a general rule, an action on a contract, whether the contract is expressed, implied, by parol, under seal, or of record, shall be brought in the name of the party in whom the legal interest in the contract is vested, and against the party who made it in person or by agent.”).


text:
    A13A0011.
    In the Interest of R. L., a child.
    (743 SE2d 502)
   DOYLE, Presiding Judge.

Following a juvenile court’s finding that one-year-old R. L. is a deprived child due to the lack of care provided by his mother, R. L. appeals through his attorney. Because the record does not support a finding of deprivation, we reverse.

In considering an appeal from the juvenile court’s deprivation order, we review the evidence from the juvenile court hearings in the light most favorable to the court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the [child was] deprived.

So viewed, the record shows that in September 2011, a caseworker from the Department of Family and Children Services (“DFCS”) visited the home where R. L. was living with his mother and maternal grandmother. The mother was 19 years old and unemployed as she pursued her high school diploma, and the grandmother had temporarily become unemployed. Due to an unpaid electricity bill, the electricity had been turned off at the grandmother’s house. The caseworker noticed that all other needs of the child were being met and did not seek a shelter care order at that time.

In early November 2011, the caseworker returned to the house, and due to the colder weather and the continued lack of electricity, the caseworker attempted to find other housing for the mother and the child. They moved to the paternal grandmother’s house, where the father also lived, and after about two weeks, the mother and the father got into a physical altercation. The mother and the child were no longer welcome at that residence, so the caseworker obtained a temporary shelter order, and the child was taken into temporary custody by DFCS.

OnNovember 22,2011, the juvenile court held a hearing at which the DFCS caseworker testified. The caseworker described her investigation of the case and the temporary placement of R. L. At the time of the hearing, the mother had moved into the house of a family friend who had volunteered to let her stay with him. A court appointed special advocate (“CASA”) had inspected the house and found it to be a suitable home environment for R. L. and the mother, but DFCS had not yet inspected it, despite being ordered to by the trial court 12 days prior to the hearing. The trial court ultimately found R. L. deprived based on findings of “no stable housing, no stable income, domestic violence, emotional abuse because the child was around domestic violence.” Nevertheless, the court placed the child in the custody of the mother subject to a protective order. The child now appeals.

1. As a preliminary matter, we address, sua sponte, the child’s standing to bring this appeal. In the juvenile court and on appeal, the child was represented by an attorney from the Fulton County Office of the Child Attorney (“O C A”). Also participating in the juvenile court were a CASA coordinator and the CASA volunteer assigned to the case, neither of whom was an attorney. In a similar case, In the Interest of W.L.H., the Supreme Court of Georgia recently held that a minor child, “acting through his attorney and against the wishes of his guardian ad litem, lacked standing to appeal the trial court’s finding of deprivation.” In that case, the court-appointed guardian ad litem had expressly concluded that, due to treatment available to the child while in the custody of DFCS, an appeal of the deprivation finding would not be in the best interest of the child. Therefore, the guardian had actually filed a brief in opposition to the appeal brought by the child’s attorney. Based on the conflict between the attorney and the guardian, the Supreme Court held that the child had no standing to bring an appeal through the attorney against the advice and wishes of the guardian.

In the present case, the record reveals no conflict between the CASA volunteer participating in the juvenile court and the OCA attorney representing the child in the juvenile court. Indeed, the record demonstrates acquiescence by the CASA volunteer, a non-attorney, in the appeal brought as a matter of course by the child’s appointed legal advocate. Thus, there is no conflict between the CASA volunteer and the OCA attorney representing the child, and W. L. H. does not control this case. Accordingly, we discern no lack of standing by the child to bring this appeal.

2. Turning to the merits of the appeal, we consider R. L.’s argument that the trial court erroneously made a finding of deprivation.

As defined in OCGA § 15-11-2 (8) (A), a deprived child is a child who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals. In considering a deprivation petition, the petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue. The deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.

As this Court has explained, the State has the burden at a deprivation hearing to adduce “evidence of present deprivation.” At the hearing, the DFCS caseworker testified that her only concern was the adequacy of the mother’s housing. She had observed that R. L. was healthy, appropriately fed and clothed, and up to date on his immunizations except for one missed and rescheduled appointment “in the midst of [R. L.] coming into care.” But with respect to housing, the mother had followed through with her plan to move in with the family friend, who offered adequate housing with a separate bedroom for the mother and R. L. Consistent with this, counsel for DFCS conceded that “[i]t does not appear that the housing situation that was alleged in my deprivation petition still exist[s] today.” DFCS noted that before R. L. was taken into DFCS custody, he was adequately cared for except for the lack of electricity: “I don’t think that anybody has ever expressed any concerns of the mother’s ability to care for this child.” Thus, while acknowledging that the circumstances had changed and that the mother had relocated, DFCS maintained that the only remaining concern was the fact that DFCS had not yet completed an evaluation of the mother’s new residence. This evaluation was still pending despite the court’s earlier order to complete it, and CASA had completed its own evaluation finding no concerns with the mother’s new housing. It is clear that had DFCS conducted a timely and favorable evaluation, it would have had no reason to argue that the mother was not meeting the needs of the child.

Decided May 22, 2013.

Shauna M. Hill, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, LaMia G. Saxby, for appellee.

This record simply does not contain clear and convincing evidence supporting a finding of present deprivation. Such a finding must be based on some misconduct of the mother “resulting in the abuse or neglect of the child or ... what is tantamount to physical or mental incapability to care for the child.” The mother’s parenting ability has never been called into question, and the only other issue identified in the record is a single altercation between the father and the mother, who no longer reside together. The incident did not involve abuse of R. L., who was two months old at the time, and the record contains no allegation nor proof of harm to R. L. Without more, the record before us fails to support a finding of deprivation.

Judgment reversed.

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

       (Punctuation omitted.) In the Interest of D. W., 318 Ga. App. 725 (734 SE2d 543) (2012).

        See In the Interest of W. L. H., 314 Ga. App. 185, 186 (723 SE2d 478) (2012), aff’d, 292 Ga. 521 (739 SE2d 322) (2013).

        In the Interest of W. L. H., 292 Ga. at 525.

       See id. at 524.

       See In the Interest of W. L. H., 314 Ga. App. at 187.

       Cf. In the Interest of J. C. W., 318 Ga. App. 772, 779-780 (1) (734 SE2d 781) (2012) (predating Supreme Court opinion in W. L. H. but distinguishing the facts of that case).

       (Citations and punctuation omitted.) In the Interest of R. M., 276 Ga. App. 707, 715 (624 SE2d 182) (2005).

       (Emphasis in original.) In the Interest of S. D., 316 Ga. App. 86, 89 (2) (728 SE2d 749) (2012). See In the Interest of J. J., 317 Ga. App. 462, 463 (1) (731 SE2d 766) (2012) (“The [S]tate must present evidence of present deprivation, not past or potential future deprivation.”).

       Cf. In the Interest of C. T., 286 Ga. App. 186, 190 (2) (648 SE2d 708) (2007) (“although the mother may struggle financially and indeed may need assistance in the care of her children, the mere fact that she earns little money and lives in a modest home does not constitute clear and convincing evidence that the mother is unfit”).

       (Citation and punctuation omitted.) In the Interest of R. M., 276 Ga. App. at 715.

       See In the Interest of H. S., 285 Ga. App. 839, 842 (648 SE2d 143) (2007) (reversing a finding of deprivation absent a showing of harm when the child witnessed one incident of domestic violence).


text:
    A13A0095.
    COLBERT v. COLBERT.
    (743 SE2d 505)
   DOYLE, Presiding Judge.

Following their divorce in Fulton County, Shenita Colbert (“mother”) and Tramaine Colbert (“father”) shared joint legal custody of their two minor children, with the mother having primary physical custody. The mother filed a petition for contempt and modification of child support in Clayton County, and the father filed an answer, a counterclaim for modification of custody, and a motion for contempt. The trial court granted the father’s motion to modify custody, giving him primary physical custody, required the mother to pay child support, and denied both parties’ motions for contempt. The mother appeals, arguing lack of jurisdiction and improper venue with regard to the trial court’s rulings on contempt and custody. We affirm, for the reasons that follow.

The record shows that the parties were divorced in Fulton County in June 2007. Pursuant to the decree, the parties shared joint legal custody of their minor children, but the mother had primary physical custody. In July 2010, the mother filed a petition in Clayton County, the father’s county of residence, seeking a modification of child support and contempt. The father answered and counterclaimed, requesting a change of custody of the minor children and child support, and a motion for contempt. Following a two-day hearing, the trial court entered an order based “upon evidence submitted [at the hearing],” finding that neither party was in contempt, modifying physical custody of the children from the mother to the father, and ordering the mother to pay child support. This appeal followed.

1. The mother argues that the trial court erred by considering the father’s counterclaim for custody. We disagree.

Whether the father could seek a custody modification in the form of a counterclaim in the mother’s Clayton County action against him to modify child support and for contempt, as well as whether the mother waived her right to challenge this procedure, are legal issues. When a question of law is at issue, as here, we review the trial court’s decision de novo.

In Georgia, “after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.” No custody modification complaint “shall be made: (1) [a]s a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or (2) [i]n response to any other action or motion seeking to enforce a child custody order.”

[T]he language of OCGA § 19-9-23 is clear[,] unequivocal[,] and . . . mandatory[,] and . . . therefore a counterclaim seeking a change of custody in an action brought by the custodial parent in the county of the noncustodial parent’s residence is improper because (1) it is not a separate action and (2) it is not brought in the county of the custodial parent’s residence.

“The defenses of lack of personal jurisdiction and improper venue[, however,] clearly may be waived, even in child custody cases.”

Here, the mother did not file any pretrial written objection to venue or jurisdiction with regard to the father’s counterclaim for custody, and because there is no transcript of the bench trial or an authorized substitute, any objection she may have made at trial is not contained in the record on appeal. The mother

bear[s] the burden of showing harmful error on appeal, and [she] must show this by the record, not merely by assertions appearing in [her] briefs or enumerations of error. Therefore, in the absence of a transcript, we must assume the trial court’s findings were supported by the evidence and the trial court’s actions during the trial were appropriate. Further, a presumption of regularity of all proceedings in a court of competent jurisdiction exists. . . ,

Because the record does not show that the mother objected to the trial court’s consideration of the father’s counterclaim for custody before or during the trial, we must affirm the trial court’s ruling on this issue.

2. The mother also argues that the Clayton County Superior Court was without jurisdiction to consider the parties’ motions for contempt because the divorce judgment was entered in Fulton County. This argument is without merit.

It has long been the rule in this state, as in other jurisdictions, that an application for contempt must be filed in the court which rendered the order or judgment in question. In divorce cases, this means that, generally speaking, a contempt application must be filed in the superior court which entered the divorce decree. The reason for this rule has been set forth succinctly as follows: The theory upon which the right of a court to punish for contempt is, that every court has power to compel obedience to its judgments, orders, and processes. It necessarily follows that only the court offended has power to punish for the contempt or to entertain proceedings to that end.

There is an exception, however, to this rule:

We find it necessary in the context of divorce and alimony cases to depart from the general rule that a contempt action must be brought in the offended court. We now hold that where a superior court other than the superior court rendering the original divorce decree acquires jurisdiction and venue to modify that decree, it likewise possesses the jurisdiction and venue to entertain a counterclaim alleging the plaintiff is in contempt of the original decree.

Decided May 22, 2013.

Alison K. Arce, for appellant.

Philip A. Ladin, for appellee.

Further, “[w]here a nonresident voluntarily institutes a suit in a county in this State[, she] submits [herself], for all purposes of that suit, to the jurisdiction of the courts of the county in which the suit is pending.”

Here, the mother filed a petition to modify child support in Clayton County, where the father resides. She also included a motion for contempt in the same action, and the father filed a counterclaim for contempt. Thus, “there is no dispute that the [Clayton] County court properly acquired jurisdiction to modify the divorce decree, independent of the contemporaneous motion for contempt. Accordingly, the [Clayton] County court also acquired jurisdiction to punish a contempt of the original decree,” and the trial court did not err by ruling on the parties’ motions for contempt.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       See Bailey v. Bailey, 283 Ga. App. 361, 362 (641 SE2d 580) (2007).

       See Curtis v. Klimowicz, 279 Ga. App. 425, 426 (1) (631 SE2d 464) (2006).

       (Emphasis supplied.) OCGA § 19-9-23 (a). The Supreme Court of Georgia has explained that “[t]his statute was enacted by the Legislature to curtail the practice [of] allowing the noncustodial parent to relitigate custody in his own jurisdiction.” Kapur v. Roach, 272 Ga. 767, 768 (534 SE2d 420) (2000).

       OCGA § 19-9-23 (c).

       (Citations, punctuation and footnotes omitted.) Bailey, 283 Ga. App. at 362-363, citing Jones v. Jones, 256 Ga. 742, 743 (352 SE2d 754) (1987).

        Daust v. Daust, 204 Ga. App. 29, 31 (418 SE2d 409) (1992).

       The Clerk of the Clayton County Superior Court indicates that there was not a transcript filed in the trial court.

       See OCGA § 5-6-41 (g).

       The mother argues for the first time in her reply brief on appeal that she was not aware that the trial court was considering modifying custody as to the parties’ younger son until after the conclusion of the trial. We note, however, that this assertion was not made in the mother’s two post-trial motions in which she objected to venue and jurisdiction with regard to the father’s counterclaim for custody modification. In any event, the lack of a transcript requires us to affirm.

       (Citation and punctuation omitted.) West v. Austin, 274 Ga. App. 729 (618 SE2d 662) (2005).

       See, e.g., Ganny v. Ganny, 238 Ga. App. 123, 125 (2) (518 SE2d 148) (1999) (mother waived her venue challenge to the father’s counterclaim for custody by failing to raise it until closing argument, after evidence was introduced on the issue); Houston v. Brown, 212 Ga. App. 834 (443 SE2d 3) (1994) (mother waived challenge to counterclaim for modification of custody by failing to move to dismiss until after the conclusion of the trial and a temporary order was issued).

       (Punctuation omitted.) Ford v. Hanna, 292 Ga. 500, 502 (739 SE2d 309) (2013), quoting Jacob v. Koslow, 282 Ga. 51, 52 (644 SE2d 857) (2007).

       (Punctuation omitted.) Ford, 292 Ga. at 503, citing Buckholts v. Buckholts, 251 Ga. 58, 61 (1) (302 SE2d 676) (1983).

        Biddinger v. Fletcher, 224 Ga. 501, 504 (162 SE2d 414) (1968).

        Ford, 292 Ga. at 505. See also Corbett v. Corbett, 236 Ga. App. 299, 301-302 (511 SE2d 633) (1999).