text:
    A14A1194.
    In the Interest of T. J. J, a child.
    (765 SE2d 704)
   DOYLE, Presiding Judge.

T. J. J. was adjudicated delinquent for committing two acts of felony theft by receiving stolen property and two acts of misdemeanor theft by receiving stolen property. He appeals, arguing that the evidence was insufficient to support his delinquency adjudication. We disagree and affirm the judgment.

To prove that a juvenile is delinquent for committing acts of a criminal nature, the State must prove the commission of these acts beyond a reasonable doubt, just as it would in a criminal prosecution of an adult for the same acts. So, when a juvenile challenges the sufficiency of the evidence, we apply the standard set forth in Jackson v. Virginia, [] and we consider whether the evidence adduced at the hearing would permit a rational trier of fact to conclude beyond a reasonable doubt that the juvenile committed the acts with which he is charged. In considering the sufficiency of the evidence, we view the evidence in the light most favorable to the adjudication below, keeping in mind that it is for the trier of fact, not this Court, to weigh this evidence, resolve any conflicts in the evidence, and assess the credibility of witnesses.

So viewed, the evidence shows that on June 17, 2013, Burgin David Lester’s home was burglarized, and 17 firearms and a special edition bottle of Jack Daniel’s whiskey, among other items, were taken. On August 6,2013, George Moore’s home was burglarized, and his truck, jewelry, and seven watches were taken.

On September 17, 2013, Lisa Rogers’s Toyota Tacoma was stolen from the parking lot in her apartment complex; her keys, which included one with a “Supergirl” emblem, were in the ignition. The following morning, police surveilled the area for the burglary suspects, and Detective Smith saw two male juveniles enter a wooded area near Rogers’s apartment. After waiting for backup, Detective Smith went into the woods along the footpath the two juveniles traversed and found multiple items that were in Rogers’s truck when it was stolen, as well as a license plate from another stolen vehicle.

Later that day, a police officer spotted Rogers’s stolen truck parked in a Target parking lot. Police obtained and watched the surveillance videos from Target, which depicted T. J. J. and another male exiting the truck and entering the store. The two left the store approximately ten minutes later and began walking toward the vehicle, abruptly turning and walking out of the parking lot when they saw a police car parked near the Tacoma. Detective Smith viewed a still photograph of the Target surveillance video and ascertained that it depicted the same suspects he saw enter the woods near Rogers’s apartment earlier that day. Police returned to the wooded area, where they apprehended T. J. J. and the other suspect, both of whom were wearing the same clothing as they were in the surveillance video footage.

Police took T. J. J. home and, pursuant to a search warrant, searched his bedroom, where they found multiple items: keys, one of which had “Supergirl” emblazoned on it; several watches; jewelry; an iPhone; a special edition bottle of Jack Daniel’s whiskey; a box of ammunition; SIM cards; and many latex gloves.

The following day, upon retrieving her truck, Rogers found a small black and brown Beretta in the center console and a pink-handled Ruger in the glove compartment, neither of which belonged to her. Police later identified the handguns as weapons stolen from Lester during the June 2013 burglary of his home.

The police downloaded pictures taken from T. J. J.’s iPhone and the phone recovered from his bedroom and found many photographs, including July 26, 2013 photographs of a pink-handled revolver and a handgun; an August 7, 2013 photograph of T. J. J. wearing a gold Seiko watch; and a photograph of T. J. J. holding a bottle of Jack Daniel’s whiskey. T. J. J. was arrested and taken to the police station, where he was recorded telling his co-defendant in the interrogation room that “[a] 11 they got on us is the wheels.”

Following a hearing, the juvenile court adjudicated him delinquent based on his commission of two counts of felony theft by receiving (the guns stolen from Lester’s home) and two counts of misdemeanor theft by receiving (Moore’s watches). T. J. J. appeals, challenging the sufficiency of the evidence.

1. T. J. J. argues that the State failed to prove beyond a reasonable doubt that he knew or should have known that the watches and guns were stolen. We disagree.

Pursuant to OCGA § 16-8-7 (a), “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control... of the property.”

Evidence of recent, unexplained possession of stolen goods is sufficient to support a conviction for theft by taking. However, proof of possession, alone, of recently stolen property is not sufficient to establish the essential element of the offense of theft by receiving stolen property that the possessor knew or should have known that the property was stolen. Nevertheless, knowledge sufficient to establish guilt may be inferred from possession in conjunction with other evidence of knowledge, and such guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent man.

Here, there is ample evidence to support the juvenile court’s determination that T. J. J. knew or should have known that guns and watches were stolen. T. J. J. was a passenger in Rogers’s stolen truck, and he fled when he observed police as he returned to the truck in the Target parking lot; the guns were in the truck at that time. Police recovered items from the truck in a wooded area near Rogers’s home where T. J. J. was seen and apprehended the day after the truck was stolen. Police also found multiple stolen items in T. J. J.’s bedroom the day after the truck was stolen, including a distinctive key belonging to Rogers, multiple watches, ammunition, jewelry, and a special edition bottle of whiskey, as well as latex gloves. And police recovered from T. J. J.’s phone photographs of the guns and of T. J. J. wearing one of the watches within days after the items were stolen from Lester and Moore. Under these circumstances and given T. J. J.’s comment to his co-defendant at the police station and his possession of the stolen property, the evidence is sufficient to support a finding of guilt.

Decided November 12, 2014.

Daveniya E. Fisher, for appellant.

Meg E. Heap, District Attorney, Austin D. Roberson, Diane M. McLeod, Assistant District Attorneys, for appellee.

2. T. J. J. also contends that there was insufficient evidence that he exercised control over the guns stolen from Lester’s home and found in Rogers’s truck. Again, we disagree.

T. J. J. was filmed exiting the passenger side of Rogers’s truck the day after it was stolen, and the guns were in the console and glove compartment of the truck at the time. The serial numbers of the guns found in the truck matched those provided by Lester, and police found photographs of the guns on T. J. J.’s phone, which photographs were taken the day after the guns were stolen from Lester’s home. Despite the fact that the serial numbers of the guns were not visible in the photographs, given the evidence in this case, the juvenile court was authorized to conclude that T. J. J. exercised control over the guns stolen from Lester’s home.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       OCGA §§ 16-8-7 (a); 16-8-12 (a) (1) (C).

       OCGA §§ 16-8-7 (a); 16-8-12 (a) (1).

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

       (Citations and punctuation omitted.) In the Interest of H. A., 311 Ga. App. 660, 661 (716 SE2d 768) (2011).

       Police matched the serial numbers of the guns discovered in Rogers’s truck with those Lester reported stolen from his home.

       The Target surveillance video, video of T. J. J.’s colloquy with his co-defendant at the police station, and the photographs downloaded from T. J. J.’s phone were admitted into evidence during the hearing.

       T. J. J. also was charged with theft by receiving Rogers’s truck and Lester’s bottle of whiskey, but the trial court dismissed those charges.

       (Citations, punctuation andfootnotes omitted.) Smith v. State, 290 Ga. App. 689, 690 (659 SE2d 917) (2008).

       See Green v. State, 277 Ga. App. 867, 869 (1) (627 SE2d 914) (2006) (defendant’s attempt to avoid police detection as well as flight following a crime is circumstantial evidence of guilty knowledge); Dawson v. State, 271 Ga. App. 217, 218-219 (1) (609 SE2d 158) (2005) (possession of stolen property, in conjunction with other evidence, may support a finding of guilty knowledge).

       See Hogues v. State, 313 Ga. App. 717, 718-719 (1) (722 SE2d 430) (2012); In the Interest of J. D. T., 262 Ga. App. 860, 862-863 (1) (586 SE2d 748) (2003); Gray v. State, 257 Ga. App. 393, 395-396 (1) (b) (571 SE2d 435) (2002).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A14A1173.
    GWINNETT COUNTY v. OLD PEACHTREE PARTNERS, LLC.
    (764 SE2d 193)
   BARNES, Presiding Judge.

This is the second appearance of this case arising out of a settlement in which Gwinnett County agreed to, among other things, purchase 16.203 acres of property from Old Peachtree Partners, LLC for the price of $5.2 million. The settlement was reached to resolve all of the pending litigation between the parties, including a condemnation action that had been filed by the County. The trial court initially concluded that the settlement agreement was unenforceable, but this Court reversed and held that the County was bound by the settlement. See Old Peachtree Partners v. Gwinnett County, 315 Ga. App. 342, 345-348 (1) (726 SE2d 437) (2012) (‘Old Peachtree Partners I”). Following remand, the trial court entered an order enforcing the settlement, and the parties closed on the transaction, with the County paying Old Peachtree for the purchase of the 16.203 acres. The trial court ultimately awarded prejudgment interest to Old Peachtree on the purchase price for the 16.203 acres of property and ruled that Old Peachtree was entitled to a trial on its claim for incidental damages. The County now appeals the trial court’s award of prejudgment interest and its grant of a trial on Old Peachtree’s claim for incidental damages. For the reasons discussed below, we affirm.

This case began with Gwinnett County filing two lawsuits seeking to acquire property owned by Old Peachtree for a public road extension project. Old Peachtree owned two adjacent parcels of property in Gwinnett County located in the area of the road extension, the first parcel consisting of 1.867 acres and the second parcel consisting of 16.203 acres. In the first lawsuit filed against Old Peachtree in April 2008, the County asserted claims for specific performance and breach of contract, seeking to enforce the terms of an option agreement to purchase Old Peachtree’s first parcel of property for $1,100,000. Old Peachtree answered, alleging that the County had failed to satisfy a condition precedent to exercising the option. Old Peachtree also asserted counterclaims for fraud and for inverse condemnation of its second parcel of property, contending that the County’s installation of a sewer line across its property after acquiring the first parcel would destroy Old Peachtree’s ability to develop the second parcel.

While the first lawsuit was pending, the County filed a second lawsuit against Old Peachtree. The second suit was a condemnation action instituted for the purpose of acquiring Old Peachtree’s first parcel of property for the road extension.

In the summer of 2009, the parties began to discuss a settlement to resolve the pending litigation, including the condemnation action. Old Peachtree presented the County with a written offer of settlement on May 1, 2009, and on May 5, 2009, the Gwinnett County Board of Commissioners (the “Board”) met in executive session and rejected the offer. However, the Board authorized the county attorney to present Old Peachtree with a counteroffer of settlement to resolve both pending lawsuits, and the attorney conveyed the counteroffer to Old Peachtree by letter dated May 8, 2009. The counteroffer included payment by the County of $1,100,000 for the first parcel that was the subject of the condemnation action, and $5,265,975 for the second parcel that Old Peachtree argued had been inversely condemned. Under the terms of the counteroffer, the County offered to settle all pending disputes between the parties in exchange for Old Peachtree agreeing to the aforementioned prices as payment for the two parcels. On May 12, 2009, Old Peachtree, through its attorney, verbally accepted the County’s settlement counteroffer.

The parties began preparing the documents that were the subject of the settlement agreement, including a purchase and sale agreement, a final consent order, and a mutual general release. Old Peachtree signed and delivered the settlement documents to the County on June 13, 2009. However, on August 4, 2009, the Board voted against the purchase of Old Peachtree’s property.

After the County refused to carry out the settlement agreement, Old Peachtree filed a counterclaim in the first lawsuit for breach of that agreement. In its prayer for relief, Old Peachtree prayed for damages, prejudgment interest, and “such other and further relief as the [trial court] deem[ed] just, equitable and proper under the facts, circumstances, and evidence presented in this case.” The parties then filed cross-motions for summary judgment relating to the enforceability of the option agreement and the settlement agreement. The County argued, among other things, that the settlement agreement was unenforceable because approval of the purchase by the full Board at a public meeting was a condition precedent to the settlement that had not been satisfied. The trial court agreed with the County and ruled that the parties were not bound by the settlement.

Old Peachtree appealed the trial court’s ruling on the enforceability of the settlement to this Court. We reversed the trial court, concluding that approval of the full Board was not a condition of the settlement agreement and that the county attorney had authority to extend the settlement counteroffer to Old Peachtree that was accepted on May 12, 2009. See Old Peachtree Partners I, 315 Ga. App. at 345-348 (1). We therefore concluded that the settlement agreement was binding and enforceable against the County. See id.

After the Supreme Court of Georgia denied certiorari, Old Peach-tree made written demands to the County on January 14, 2013 and February 1, 2013 seeking payment for the two parcels of Old Peach-tree’s property referenced in the settlement agreement, plus prejudgment interest and other damages. The Board rejected the demands on February 5, 2013.

Old Peachtree then filed a motion to enforce the settlement agreement on February 22, 2013. Old Peachtree sought specific performance of the settlement agreement and prejudgment interest under OCGA § 7-4-15 on the purchase price owed by the County for the two parcels of Old Peachtree’s property. Old Peachtree also requested a trial on the incidental damages it allegedly had incurred as a result of the County’s refusal to carry through with the settlement agreement. Specifically, Old Peachtree argued that it was entitled to recover the costs (i.e., property taxes, interest on the property’s mortgage, and property insurance) it had incurred in continuing to maintain the property since 2009 when the County should have taken possession of the property pursuant to the settlement agreement.

The County initially opposed the motion, but ultimately consented to the trial court awarding specific performance. On April 10, 2013, the trial court granted Old Peachtree’s motion to enforce the settlement agreement. The trial court ordered the County to tender into the court registry in the condemnation action the full amount it had agreed to pay for the first parcel of Old Peachtree’s property. The court further ordered the County to complete its purchase of the second parcel of Old Peachtree’s property for the agreed upon price of $5,265,975. The trial court reserved ruling on the issues of prejudgment interest and incidental damages.

Pursuant to the trial court’s enforcement order, on April 24, 2013, the County tendered the funds into the court registry in the condemnation action for the acquisition of Old Peachtree’s first parcel of property. On May 7, 2013, the County complied with the enforcement order and acquired Old Peachtree’s second parcel in exchange for the agreed-upon purchase price.

The trial court addressed the issue of prejudgment interest in a subsequent order entered on May 15, 2013. The trial court awarded prejudgment interest on the amount that the County had deposited into the court registry in the condemnation action for the first parcel of Old Peachtree’s property on April 24,2013,butnoton the $5,265,975 purchase price that had been paid by the County for the second parcel on May 7, 2013. The trial court accepted the County’s argument that the County was not obligated to pay prejudgment interest on the $5,265,975 because interest did not start to accrue on the purchase price until the County took actual possession of the second parcel, which did not occur until May 7, 2013, the same day that it made full payment to Old Peachtree. Consequently, the trial court found that no prejudgment interest was owed on the purchase price ultimately paid by the County for the second parcel.

Old Peachtree moved for reconsideration, contending that actual possession by the County of the second parcel was irrelevant in determining when prejudgment interest should start to accrue on the purchase price paid by the County. On October 16,2013, the trial court granted Old Peachtree’s motion for reconsideration, reversed its prior order, and ruled that Old Peachtree was entitled to $1,458,089.97 in prejudgment interest on the purchase price that the County had paid for the second parcel pursuant to OCGA § 7-4-15. The trial court also ruled that Old Peachtree was entitled to a trial to determine the extent of its incidental damages.

Following the entry of its order granting Old Peachtree’s motion for reconsideration, the trial court issued a certificate of immediate review. We granted the County’s application for interlocutory appeal, and this appeal followed in which the County challenges the award of prejudgment interest and the grant of a trial on incidental damages.

1. The County contends that the trial court erred in granting Old Peachtree’s motion for reconsideration and awarding prejudgment interest on the purchase price of Old Peachtree’s second parcel of property under OCGA § 7-4-15. According to the County, OldPeachtree is prohibited from recovering prejudgment interest for three separate reasons: (a) interest did not begin to accrue until the County took actual possession of the second parcel; (b) Old Peachtree delayed requesting specific performance of the settlement agreement until after its successful appeal of the trial court’s initial ruling that the agreement was unenforceable; and (c) interest did not begin to accrue until the County became bound to pay the purchase price of the second parcel, which did not occur until this Court reversed the trial court regarding the enforceability of the settlement and the closing on the property occurred on remand. We will address the County’s arguments each in turn.

(a) The County first argues that the trial court erred in awarding prejudgment interest on the purchase price of the second parcel under OCGA § 7-4-15 because interest should not have started to accrue until the County took actual possession of the parcel. We are unpersuaded.

OCGA § 7-4-15 provides in relevant part: Pursuant to this statutory language, if the amount owed under a contract is “fixed, certain, and ascertainable under its terms,” the claim is liquidated. Rivergate Corp. v. Atlanta Indoor Advertising Concepts, 210 Ga. App. 501, 503 (3) (436 SE2d 697) (1993). See also In re Estate of Miraglia, 290 Ga. App. 28, 31 (2) (658 SE2d 777) (2008) (“A liquidated claim is an amount certain and fixed, either by the act and agreement of the parties or by operation of law; a sum which cannot bechangedby the proof. The word‘liquidated’as usedinOCGA § 7-4-15 means ‘settled, acknowledged, or agreed.’ ”) (citation and punctuation omitted). If a claim is liquidated under OCGA § 7-4-15, the award of prejudgment interest is mandatory, should be awarded by the trial court as a matter of law, and accrues at the rate of seven percent per annum simple interest if the rate is not established in the parties’ written contract. See OCGA § 7-4-2 (a) (1) (A); Crisler v. Haugabook, 290 Ga. 863, 864 (725 SE2d 318) (2012); Hendricks v. Blake & Pendleton, 221 Ga. App. 651, 653 (2) (472 SE2d 482) (1996). The only prerequisite is that “a demand for prejudgment interest [be made] prior to the entry of final judgment.” Crisler, 290 Ga. at 864.

All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them; if payable on demand, they shall bear interest from the time of the demand. . . .

There is no dispute regarding the purchase price that the County was required to pay to Old Peachtree for its second parcel of property under the settlement agreement — $5,265,975. Hence, the purchase price for the second parcel was fixed, certain, and ascertainable under the terms of the parties’ contract, such that the debt owed by the County was liquidated and subject to prejudgment interest under OCGA § 7-4-15. See In re Estate of Miraglia, 290 Ga. App. at 31 (2); Rivergate Corp., 210 Ga. App. at 503 (3). The question then becomes at what point prejudgment interest began to accrue on the purchase price.

Generally speaking, prejudgment interest on an amount owed under a contract starts to run on the date the amount becomes due and payable. See Turner Constr. Co. v. Elec. Distrib., 202 Ga. App. 726, 727 (3) (415 SE2d 325) (1992); B. G. Sanders & Assoc. v. Castellow, 154 Ga. App. 433, 434-435 (1) (268 SE2d 695) (1980); Continental Carriers v. Seaboard Coast Line R. Co., 129 Ga. App. 889, 890 (2) (201 SE2d 826) (1973) (physical precedent only). Hence, interest on the purchase price owed for real estate starts to run when the purchase money becomes due under the parties’ contract. See Shepard v. Gettys, 206 Ga. 392, 394 (57 SE2d 272) (1950) (“In the absence of an express agreement, [the] purchase-money would not draw interest until it became due[.]”); Hawkins v. Studdard, 132 Ga. 265, 272 (4) (63 SE 852) (1909) (noting that interest on purchase money owed for real estate “would begin when payment should be made under the contract”).

The parties’ settlement agreement is silent as to when the County was required to pay the purchase price of $5,265,975 to Old Peachtree for the second parcel of property. When no time for payment of the purchase price is specified in a contract involving the sale of real estate, it is presumed that payment will be by cash upon delivery of the deed at closing. See 2 Daniel F. Hinkel, Pindar’s Ga. Real Estate Law and Procedure, § 18:32 (7th ed. 2013). See also Harrell v. Stovall, 232 Ga. 359, 360 (2) (206 SE2d 493) (1974) (holding that where contract did not specify time for payment, payment for acreage adjustment had to be made in cash at closing rather than in form of installment payments). And if no time is specified in the contract for when the closing will occur, the law presumes that a reasonable time was contemplated by the parties. See Moog v. Palmour, 115 Ga. App. 602, 602-603 (155 SE2d 692) (1967); Teague v. Adair Realty & Loan Co., 92 Ga. App. 463, 466-467 (1) (88 SE2d 795) (1955). Thus, prejudgment interest on the purchase price for Old Peachtree’s second parcel began to run on the date by which the closing should have occurred in this case.

However, relying upon Adams v. Foster, 141 Ga. 438 (81 SE 201) (1914), and Lively v. Munday, 201 Ga. 409 (40 SE2d 62) (1946), the County argues that prejudgment interest did not begin to accrue until it took actual possession of the second parcel, which occurred pursuant to the trial court’s order granting specific performance of the settlement agreement, long after the closing should have taken place if no breach had occurred. Notably, under the County’s reasoning predicated on Adams and Lively, the County would owe no prejudgment interest at all because it paid Old Peachtree the full purchase price of the second parcel on the same day that it took actual possession of that parcel. We are unpersuaded by the County’s argument because it is based upon a misreading of Adams and Lively.

In Adams, 141 Ga. at 439 (1), our Supreme Court stated in dicta that the “general rule[ ] in cases for specific performance” is “that a purchaser in possession of the realty which is the subject-matter of a contract must pay interest on the unpaid purchase-money from the time when his possession commenced,” but then went on to find the rule inapplicable in that case. Subsequently, in Lively, 201 Ga. at 421 (3), our Supreme Court addressed the situation where the purchasers “immediately went into possession” of the property when they entered into the sales contract with the buyer, and held that, given that circumstance, the purchasers were liable for interest on the purchase price “from the date of such entry.” Citing to Adams, the Supreme Court ruled that the purchasers were required to “pay interest at the legal rate from and after the date they acquired possession” of the property. Lively, 201 Ga. at 422 (3).

Subsequently, in Shepard, 206 Ga. 392, our Supreme Court clarified when the rule referenced in dicta in Adams and then applied in Lively should control the awarding of prejudgment interest. Specifically, the Supreme Court clarified that Lively “does not hold that the mere act of taking possession created a liability for interest on the purchase-money.” Id. Rather, the Supreme Court explained, Lively stands for the proposition that when a purchaser enters “immediately into possession” of the property upon entering into the sales contract and the contract is intended to be a “cash transaction,” the purchase money debt matures and becomes due and payable at that point, triggering the accrual of prejudgment interest. Id. Outside the unique context where the contract is intended to be a cash transaction and there is no temporal delay between the purchaser entering into the sales contract and taking possession of the property, the rule is simply that the “purchase-money would not draw interest until it became due” under the sales contract. Id.

Accordingly, because the County did not enter “immediately into possession” of Old Peachtree’s second parcel of property, the rule enunciated in Adams and Lively for the awarding of prejudgment interest has no application. Rather, the rule that applies is that prejudgment interest began to run when the purchase money became due and payable under the settlement agreement. See Shepard, 206 Ga. at 394. And, as previously explained, the purchase money for the second parcel would have become due and payable at the intended closing of the purchase transaction, which should have occurred within a reasonable time after the parties entered into the settlement agreement. Thus, prejudgment interest on the purchase price for Old Peachtree’s second parcel began to run on the date by which the closing should have occurred, not on the much later date when the County took actual possession of the parcel. Consequently, we reject the County’s argument that the trial court erred in awarding prejudgment interest because the accrual period should not have started until it took actual possession of the second parcel owned by Old Peachtree.

(b) The County next contends that the trial court erred in awarding prejudgment interest on the purchase price of the second parcel because Old Peachtree delayed requesting specific performance of the settlement agreement until after its successful appeal to this Court in Old Peachtree Partners I, 315 Ga. App. 342. But the County notes in its brief that it ultimately consented to the trial court’s decision to award specific performance of the settlement agreement despite the delay, and the County does not challenge the trial court’s order granting that relief on appeal. Any challenge that the County may have had to the timeliness of Old Peachtree’s request for specific performance therefore has been waived, given the County’s acquiescence to and failure to challenge the trial court’s grant of that request. See generally Robinson v. Moonraker Assoc., 205 Ga. App. 597, 598 (423 SE2d 44) (1992) (noting that “a litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of [the] same” on appeal).

In any event, the sole prerequisite for an award of prejudgment interest on a liquidated claim is that a demand be made before the entry of final judgment, so that the opposing party has an opportunity to contest an award of interest. Crisler, 290 Ga. at 864. Old Peachtree made written demands to the County on January 14, 2013 and February 1, 2013, and the County had a full and fair opportunity to contest an award of prejudgment interest in this case. Because the sole prerequisite for the award of prejudgment interest on a liquidated claim was satisfied, the County has failed to articulate a valid basis for reversal on this ground.

(c) The County also contends that the trial court erred in awarding prejudgment interest on the purchase price of the second parcel because interest did not begin to accrue until the County became bound to pay the purchase price of the second parcel, which the County asserts did not occur until this Court reversed the trial court regarding the enforceability of the settlement and the closing on the property took place on remand. Again, under the County’s reasoning, it would owe no prejudgment interest at all, given that the County made full payment of the purchase price for the second parcel at the closing that occurred on remand. However, as explained supra in Division 1 (a), the purchase price for the second parcel became due, and prejudgment interest started to run, on the date by which the closing on the second parcel should have occurred if there had been no breach by the County, which would have been long before the closing actually occurred in this case on remand. The County’s contention, therefore, is misplaced.

(d) For these combined reasons, we reject the County’s three specific arguments that it raised in the court below and on appeal for why the trial court should have awarded no prejudgment interest. We will not consider any additional arguments regarding the propriety of the trial court’s award of prejudgment interest that were neither raised nor ruled upon in the court below, given that we do not apply a “wrong for any reason” rule in evaluating an order on appeal. See, e.g., Lowery v. Atlanta Heart Assoc., 266 Ga. App. 402, 404-405 (2) (597 SE2d 494) (2004).

2. The County also contends that the trial court erred in concluding that Old Peachtree was entitled to a trial on incidental damages. According to the County, Old Peachtree could not recover as incidental damages any of the costs it incurred in maintaining the second parcel from the time that the closing on the property should have occurred under the settlement agreement until the time that the actual closing took place. We disagree.

It is true that if a plaintiff obtains specific performance, he cannot also obtain “an award of damages which would have resulted from the defendant’s failure to perform the parties’ contract.” Clayton v. Deverell, 257 Ga. 653, 654-655 (3) (362 SE2d 364) (1987). But “this does not mean that an award of specific performance automatically precludes an award of any monetary damages.” Id. at 655 (4). Rather, our Supreme Court, quoting 5A Corbin on Contracts 473, § 1222 (1964), has explained that

specific performance at the end of a protracted litigation under compulsion is practically never full performance of the contract; instead, there has been an extensive and injurious partial breach. In such a case, the court should decree the payment of damages for the partial breach that has already occurred, even though obedience of the decree will prevent the commission of further breaches.

Decided October 23, 2014

Reconsideration denied November 13, 2014

M. Van Stephens II, Michael P. Ludwiczak, for appellant.

Balch & Bingham, Michael J. Bowers, M.AnneKaufold-Wiggins, Webb, Tanner, Powell, Mertz & Wilson, Anthony O. L. Powell, for appellee.

Golden v. Frazier, 244 Ga. 685, 688 (3) (261 SE2d 703) (1979). Hence, a trial court may award “incidental damages” to plaintiffs in addition to specific performance when necessary “to make them whole.” Id. See Clayton, 257 Ga. at 655 (4). An example of incidental damages in this context would be the costs of maintaining insurance coverage on the property that were incurred by a plaintiff-seller from the time of the intended closing under the contract until the time of the actual closing. See Golden, 244 Ga. at 687-688 (3).

In light of this precedent, the trial court did not err in ruling that Old Peachtree was entitled to pursue a claim for incidental damages at trial. At the very least, Old Peachtree would be entitled to present evidence aimed at proving the costs of maintaining insurance coverage on the second parcel that it had incurred from the time of the intended closing until the time of the actual closing. See Golden, 244 Ga. at 687-688 (3). Accordingly, we discern no basis for reversal.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       The underlying facts are set out in greater detail in the prior appeal of this case, Old Peachtree Partners I, 315 Ga. App. at 342-345.

       The settlement documents signed by Old Peachtree and delivered to the County on June 13, 2009 in an effort to carry through with the settlement indicated that the parties contemplated that closing would occur no later than 75 days after the execution of a purchase and sale agreement for the property.

       The County also relies heavily on Hampton Island, LLC v. HAOP, LLC, 317 Ga. App. 80 (731 SE2d 71) (2012), Hampton Island, LLC v. HAOP, LLC, 306 Ga. App. 542 (702 SE2d 770) (2010), and Hughes v. Great Southern Midway, 265 Ga. 94 (454 SE2d 130) (1995) to support its argument that Old Peachtree was not entitled to prejudgment interest. However, neither of the Hampton Island cases includes any discussion of a liquidated demand or the accrual of prejudgment interest, and thus neither case has any bearing on the outcome here. Hughes, in turn, addressed only whether a trial court’s order awarding prejudgment interest constituted “an impermissible modification” of a previously entered final judgment. See Hughes, 265 Ga. at 96 (2). Hughes did not address the accrual period for prejudgment interest when specific performance of a settlement agreement involving real estate has been ordered by the trial court.

       Relying upon Grange Mut. Cas. Co. v. Kay, 264 Ga. App. 139, 143-144 (4) (589 SE2d 711) (2003), the County argues that it was not bound to pay the purchase price under the settlement agreement until after the agreement was held to be enforceable by the courts. But Grange Mut. Cas. Co. involved the settlement of a claim asserted on behalf of a minor child, and in that context, the probate court was required to exercise judicial oversight and approve any settlement. See former OCGA § 29-2-16 (1997); Anderson v. Jones, 323 Ga. App. 311, 319-320 (3) (745 SE2d 787) (2013). In the instant case, no party was a minor, and no court approval was required for the settlement.

       The County argues that Old Peachtree should not be entitled to recover as incidental damages “increased tax payments resulting from a change in federal law effective January 1, 2013.” However, the trial court did not rule on this specific issue, and thus it would be premature for this Court to address it at this time. “[T]his Court is empaneled to review rulings by lower courts and will not address issues not ruled upon below.” (Citation and punctuation omitted.) Messaadi v. Messaadi, 282 Ga. 126, 129 (3) (646 SE2d 230) (2007).


author: DOYLE, Presiding Judge.

text:
    A12A0981.
    ALIZOTA v. STANFIELD et al.
    (765 SE2d 707)
   DOYLE, Presiding Judge.

This appeal arises from the trial court’s entry of judgment terminating Emmanuel Alizota’s parental rights and grant of a petition of adoption of S. K. filed by Ryan and Melissa Stanfield. When this Court originally addressed this appeal, we vacated the superior court order terminating Alizota’s parental rights and granting the Stanfields’ petition for adoption because the superior court lacked jurisdiction to enter an adoption order. The Stanfields petitioned the Supreme Court for certiorari, which granted the petition and reversed our opinion, holding that because the termination of Alizota’s parental rights had not been raised previously in the juvenile court during deprivation proceedings, the juvenile court did not have priority jurisdiction over the termination. The Supreme Court remanded the case for further proceedings, and we now reverse the trial court’s order, for the reasons that follow.

On appeal from an order terminating parental rights based on an adoption petition, we construe the evidence favorably to the trial court’s ruling and determine whether any rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights to custody have been lost. We do not weigh the evidence or assess witness credibility, but defer to the trial court’s factual findings and affirm unless this standard is not met.

So viewed, the record reflects that on December 9, 2009, S. K.’s mother was arrested for driving under the influence while S. K. was in her vehicle. Based on the incident, the Department of Family and Children Services (“the Department”) took S. K., who was approximately six months old at the time, into shelter care and placed her in the care of the Stanfields pending a deprivation hearing. On January 22, 2010, the Juvenile Court of Fayette County entered an order adjudicating S. K. deprived as to the mother on the grounds of neglect, lack of proper parental care and supervision, and drug use.

Upon becoming involved in S. K.’s case, the Department contacted Alizota as the putative father (he was not listed on the birth certificate), who moved to legitimate the child, and the juvenile court granted his motion in March 2010. The Stanfields, however, opposed the legitimation. According to Melissa, the mother lived with the Stanfields during S. K.’s infancy, Alizota was not involved with S. K. between the time she was approximately one month old and shortly after the mother’s arrest in December 2009, at which point Alizota visited with S. K. through the Department. The Department developed a reunification case plan for Alizota that, among other things, required him to obtain a steady source of income and stable housing, screen negative for drug use, and pay child support.

Alizota and the mother eventually consented to a nonreunification plan, and long-term temporary custody of S. K. was given to the Stanfields, pursuant to former OCGA § 15-11-58 (i). The parties met in mid-April and consented to the entry of nonreunification with relinquishment of custody by the mother and Alizota to the Stan-fields, and the juvenile court entered a consent order dated June 14, 2010, nunc pro tunc April 15, 2010, and an amended consent order dated August 18, 2010, nunc pro tunc June 14, 2010, finding that Alizota had agreed to relinquish custody of S. K. and granting custody to the Stanfields until S. K. reached 18 years old.

The order also found that Alizota wished to remain active in S. K.’s life, and the court ordered supervised visits for Alizota, finding that he could later move for unsupervised visits with the child. As part of the order, Melissa stipulated that she would supervise visits with the parents and she would not oppose unsupervised visits. Finally, in line with the statutory provisions of former OCGA § 15-11-58 (i) (2) (A), the juvenile court ordered the Department to review S. K.’s placement every 36 months.

Immediately after custody was transferred to the Stanfields, Melissa halted S. K.’s visitation with Alizota until he provided her with a clean drug test despite the fact that Alizota had been visiting with S. K. until that time under the Department’s supervision without such a requirement. In early July 2010, the parties went to court to resolve the visitation issue, and the juvenile court ordered Alizota to provide drug tests to the Department; by August 2010, the clean drug screens had been completed and by September 2010, the juvenile court had ordered Melissa to allow visitation in two single-hour visits.

From August 2010 to January 2011, Alizota, who previously had completed parenting classes, visited with S. K., first on a supervised basis and later on an unsupervised basis, and he also remitted child support to the Stanfields, had begun to bond well with S. K., and had no positive drug screens.

By November 2010, Department case managers were in favor of having Alizota visit more frequently with S. K. so that they could have adequate time to bond; however, Melissa allowed for visits only as directly ordered by the juvenile court. Just before Thanksgiving 2010, Melissa became upset when she was not allowed to accompany Alizota during visitation. In December 2010, the Stanfields hired Dana Spears, a child psychologist, to observe S. K. and Alizota.

Despite entering into the consent order, on December 3,2010, the Stanfields filed a petition for adoption of S. K. in the Superior Court of Fayette County, at which time S. K. was two days shy of being eighteen months old. The petition alleged that Alizota (1) failed to develop and maintain a paternal bond with the child in a meaningful, supportive manner; (2) without justifiable cause failed to become a United States citizen and thus “face[d] criminal charges and deportation every minute of every day”; (3) without justifiable cause failed to provide for the care and support of the child as required by law for a period in excess of 12 months prior to date of filing; (4) never lived with the child; and (5) failed to exercise proper parental care or control of the minor child due to misconduct or inability as defined in former OCGA § 15-11-94 (b) (4).

Alizota answered the petition, challenging the Stanfields’ contentions that S. K. was in danger of ongoing deprivation and that it was in S. K.’s best interest to terminate his parental rights, and he asked the superior court to deny the adoption petition and counterclaimed for permanent custody of S. K.

The superior court held hearings on January 27, 2011, and March 9, 2011. The Stanfields appeared on their own behalf along with Dana Spears, a child psychologist hired by them in December 2010. Alizota called several witnesses from the Department, including DeShay Rice-Clansy, who was S. K.’s case manager in January 2010.

Rice-Clansy testified that the Department became involved in S. K.’s family through a family preservation plan that began in Forsyth County and transferred to Fayette County, when the mother moved in with the Stanfields; the mother had tested positive for cocaine and methamphetamine. At that time, Alizota was not a part of the case plan because he had no custodial rights to S. K. She testified that the Department’s first significant interaction with Alizota began when he was at the team meeting on January 12,2010, to develop a reunification plan after S. K.’s removal from the mother.

With regard to Alizota’s participation in parenting classes, RiceClansy testified that “I thought [his] progress . . . was outstanding because he was willing to listen to any advice [the instructor] was giving on how to deal with [S. K.]. He was open to any instructions that she was willing to give for his involvement with [S. K.] ,” She also stated that “[the Department] couldn’t have asked for ... a parent to be more willing to go ahead and complete their case plan.”

According to Rice-Clansy, Alizota had completed the parenting class requirement in his reunification plan at the time the case was closed. Rice-Clansy testified that Alizota was also compliant with his housing and income requirements, his individual therapy sessions, his drug addiction classes, and his child support requirements. Rice-Clansy testified that the only instance of a positive drug screen she received from Alizota was when he used cocaine with the mother in April 2010. She also testified that he reported as instructed to child support enforcement, but Melissa was obstructing his ability to set up a case for S. K. because she would not release the child’s social security number to Alizota. Rice-Clansy spoke to Melissa about the issue, and she found Melissa was impeding Alizota’s attempts to set up the child support plan and recommended that Alizota pay Melissa with money orders so that there would be evidence of payment; she said that the stone-walling continued until the summer of 2010 when the child support case was finally opened.

Rice-Clansy stated that Melissa was against including Alizota in the reunification plan from the family meeting on January 12, and the Department contemplated removing S. K. from the Stanfields as a result of her vehement opposition. In addition to her resistance to accepting child support, from January 2010 to April 2010, Melissa also failed to notify Alizota of medical appointments and canceled visitation with him on numerous occasions. With regard to the April drug screen, Rice-Clansy testified that it was never a requirement of the Department that Alizota have negative drug screens in order to visit with S. K. Rice-Clansy stated that at the time the parents decided to sign the long-term custody agreement with the Stanfields, Alizota was completing all his case plan goals, and it was her opinion that custody should remain with the Department because Alizota “was actively working [his] case plan” and “[had] a bond with the child” or believed if S. K. were still in Department custody at the time of the trial court’s hearing, that caseworker would have recommended that Alizota have custody of S. K. Rice-Clansy testified that despite the Stanfields’ assurances that they would facilitate visitation with S. K., they began to prohibit him from visiting after custody was transferred.

Karen Langston, a Department caseworker who observed between four and five visits between Alizota and S. K. after visitation resumed in August, stated that she observed bonding between the two. She testified that Alizota acted appropriately, and she had no concerns that he was missing the fundamentals of parenting.

Lisa Nebel, a supervisor at the Department, testified that she observed some of the fall 2010 visits and determined that they should be unsupervised visits without Melissa present because Nebel “felt like the child was comfortable with [Alizota,] and there appeared to be a bond. [Alizota] was very appropriate with the child[,] and they were his visits.” She testified that Alizota was very serious about his plan, and she felt it would have been better had the parents not transferred custody to the Stanfields. Additionally, Kimberly Bunch, a CASA volunteer, observed some of Alizota’s earlier visits with S. K. and found him to be engaging and that the two were comfortable with each other.

On May 20, 2011, the trial court found that Alizota (1) failed to develop and maintain a parental bond with the child in a meaningful, supportive manner; (2) failed to live with the child; (3) failed to exercise proper parental care or control of the minor due to misconduct or inability as defined by former OCGA § 15-11-94 (b) (4); (4) had no “verifiable, stable income, [and could not] provide for the necessities such as food, clothing and shelter”; (5) failed to acquire a green card or work visa, or to gain citizenship; (6) failed to secure a driver’s license and drove without a license; (7) failed to leave the country in order to apply for United States citizenship, and S. K. would be without proper parental care if he leaves the country; (8) had a history of abusing cocaine; (9) provided the mother with cocaine during her pregnancy with S. K; (10) refused drug screens from April 2010 to August 2010; (11) had “not maintained appropriate, stable housing having moved twice, last into the home of someone he [had] known for six months and upon whom he [was] dependent for housing”; (12) had missed visitation without offering an excuse or reason for doing so; (13) had not established or maintained a bond with S. K.; (14) was not involved in S. K.’s life until summoned to court by the Department; and (15) had not paid child support until threatened with incarceration for not doing so. The trial court concluded that Alizota

failed to support his child for a period of 12 months, failed to establish and maintain a bond with his child, failed to establish and maintain stable housing suitable for him and [S. K.], failed to establish and maintain stable income sufficient to support himself and his children, . . . failed to become and remain drug free,... failed to secure a Georgia [d] river’s license, and . . . not demonstrated that any of the alleged recent improvements rendered] him capable of parenting.

The trial court then ordered his rights terminated and granted the petition for adoption of S. K. by the Stanfields.

Alizota appeals, arguing that the trial court erred by terminating his rights and granting the petition for adoption because there was insufficient evidence to support the trial court’s determination. We agree.

Generally,

a child who has any living parent or guardian may be adopted by a relative who is related by blood or marriage to the child as a grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, or sibling only if each such living parent and each such guardian has voluntarily and in writing surrendered to that relative and any spouse of such relative all of his or her rights to the child for the purpose of enabling that relative and any such spouse to adopt the child.

Pursuant to former OCGA § 19-8-10 (a), however, such surrender of rights is not required as a prerequisite to filing a petition for adoption if

the court determines by clear and convincing evidence: (1) [that the c]hild has been abandoned by that parent;. .. [or] (4) [that the p]arent has failed to exercise proper parental care or control due to misconduct or inability, as set out in paragraph (3), (4), or (5) of subsection (a) of Code Section 15-11-94____

Alternatively, OCGA § 19-8-10 (b) provides

that the court may still grant [a] petition to adopt the child if it finds, inter alia, that there is clear and convincing evidence... that the parent, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed: (1) To communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or (2) To provide for the care and support of that ' child as required by law or judicial decree.

The inquiry to determine whether there is “parental misconduct or inability” is the same made by a juvenile court in termination cases — “a finding that the child is deprived, the lack of proper parental care or control by the parent is the cause of the child being deprived, the cause of deprivation is likely to continue or will not likely be remedied, and the continued deprivation will cause or is likely to cause serious harm to the child ” Under former OCGA § 15-11-94 (b) (4), the court may terminate if

(4) (A) [t]he court determines parental misconduct or inability by finding that: (i) [t]he child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) [t]he lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) [s]uch cause of deprivation is likely to continue or will not likely be remedied; and (iv) [t]he continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. (B) In determining whether the child is without proper parental care and control, the court shall consider, without being limited to, the following: (i) [a] medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child; (ii) [e]xcessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child; (iii) [c]onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship; (iv) [e]gregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature; (v) [physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent; and (vi) [i]njury or death of a sibling under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse. (C) In addition to the considerations in subparagraph (B) of this paragraph, where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) [t]o develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t] o comply with a court ordered plan designed to reunite the child with the parent or parents . . . .

“[T]he court should remain mindful that the time limitation in former OCGA § 15-11-94 (b) (4) (C) is designed to give the parent whose rights are subject to termination sufficient time and opportunity to demonstrate his or her ability to comply with the terms of the court’s order.”

If the petitioner meets that burden of proof and the court finds that one of the above situations exists, then the court must also determine whether the proposed adoption is in the best interest of the child. With regard to the best interest test in adoption cases, the trial court has very broad discretion with which this Court will not interfere except in cases of plain abuse. However, a court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational[J or even moral advantages elsewhere. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship. The requirements of Georgia’s adoption statutes are mandatory and must be strictly construed in favor of the natural parents, because the application thereof results in the complete and permanent severance of the parental relationship.

In this instance, the trial court’s decision to terminate Alizota’s parental rights is not supported by clear and convincing evidence. While we are cognizant of the deferential standard of review, there is no clear and convincing evidence of a deprivation or any factors in OCGA § 19-8-10 (a) or (b). Courts must remember that “[t]here is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously.” With this precept in mind, we conclude that the trial court was not authorized to grant the adoption pursuant to OCGA §§ 19-8-10 (a) (4) and 15-11-94 (b).

First, the trial court made numerous findings in support of its determination to terminate Alizota’s parental rights that establish that the decision rests upon inappropriate factors, namely, Alizota’s noncitizen status, his lack of a driver’s license, and the “verifiability” of his income. In the year prior to the adoption petition, Alizota paid child support to the Stanfields for at least six months and produced documentation from numerous sources that he attempted to pay them even earlier, but was hampered by Melissa’s refusal to cooperate. Additionally, he provided evidence that he wired money to the mother while S. K. was in her custody and during the time period that the Department had custody of the child. Although he could not prove that the mother used the money for supplies, it is clear that the attempt was made. And while S. K.’s opportunities may be enlarged while living with the Stanfields or in the United States, it does not automatically follow that a deprivation occurs simply because a custodial parent may be forced to return to his country of origin.

We also must recall that lack of a driver’s license or access to an automobile is not equivalent to a deprivation. There is no evidence that Alizota has physically endangered S. K. or that he has ever been arrested or convicted of a crime. The better practice is for him to abstain from driving without a Georgia license, but again, it does not follow that deprivation occurs because a parent must utilize other modes of travel.

Moreover, of the remaining findings in support of its determination, a number are contrary to the evidence presented. In the time period between when S. K. was removed from the mother and when the Stanfields’ petition was filed, Alizota completed parenting classes, completed drug and alcohol treatment, completed individual therapy, attended regular visitation with S. K. (despite the fact that Melissa, who did not work, outside the home, had only two days per week available for Alizota’s visitation), and consistently paid and was up to date with child support. Alizota is no longer in a relationship with the mother, whose parental rights were terminated by the trial court, and who was undeniably the primary source of the deprivation. He is now married to a United States citizen, and although their relationship has not been a long one, the two co-parent her child, maintain a home together, and have been the subject of no allegations of mistreatment or neglect.

With regard to the trial court’s finding that Alizota “failed to become and remain drug free,” it is undisputed that after a single instance of a positive toxicology screen during the pendency of his case plan, he has, for the eight months immediately preceding the adoption petition, provided evidence that he was drug free and completed drug and alcohol awareness classes. There is no evidence that his wife suffers from substance abuse issues as was the case with the mother, and therefore, it is even less likely that this “cause of deprivation is likely to continue or will not likely be remedied.”

Finally, the only remaining ground upon which the trial court’s determination that termination is appropriate is its finding that Alizota had not bonded with S. K. The only evidence in support of this finding was Spears’s testimony, who was hired by the Stanfields on December 1, 2010, in preparation of filing the petition and who observed two single-hour visits during the time period immediately preceding the petition. In contrast, every Department worker testified that Alizota was bonding to the child, whom we emphasize was between the ages of six months old and eighteen months old during the immediate preceding year. And given how little time had elapsed prior to the petition, it was error for the trial court to grant the termination of Alizota’s rights on this ground.

We do not address Alizota’s petition for change of custody, as it is for the trial court to address in the first instance.

Judgment reversed.

Andrews, P. J., and Boggs, J., concur.

Decided November 13, 2014.

Justin B. Grubbs, for appellant.

Stephen D. Ott, James B. Outman, for appellees.

       The trial court also terminated the rights of M. K., S. K.’s biological mother, who is also the sister of Melissa Stanfield, hut M. K. is not a party to this appeal.

       See Alizota v. Stanfield, 319 Ga. App. 256 (734 SE2d 497) (2012).

       See Stanfield v. Alizota, 294 Ga. 813, 817 (756 SE2d 526) (2014).

        Dell v. Dell, 324 Ga. App. 297 (748 SE2d 703) (2013), quoting Weber v. Livingston, 309 Ga. App. 665 (710 SE2d 864) (2011); In re Petition of Marks, 300 Ga. App. 239, 240 (684 SE2d 364) (2009).

       Melissa testified that on the night of the DUI, she woke the mother (who was living with the Stanfields at the time) to confront her about alcohol use, and the two argued, at which time the mother took her older child, J. S., and S. K. to her car and left the Stanfields’ home. The Stanfields then called 911 to report that she was drinking and driving with the children in the car.

       Melissa is the mother’s twin sister. She and Ryan have been married since 2004, and they do not have biological children.

       The mother’s case is not before this Court, but the record shows that she has had long-term addiction related issues, and this was the second time she had been arrested for DUI while her children were in the vehicle. The first incident occurred in 2004, and her older child, J. S., who is not Alizota’s child, was taken temporarily from her care. J. S. was put into his father’s care after the mother was arrested in the 2009 incident. Melissa testified that she received a call from Alizota at about 2:00 a.m. on December 9, 2009, after the mother was arrested, asking where the mother was, if she was coming to his home, and how the children were doing. Melissa testified that she did not prohibit him from coming to get S. K. (she did state that “he might have asked if [S. K.] is okay. I said I have her. He wasn’t the father. He wasn’t the legal father”), however, Alizota testified that she would not allow him to get the child.

       Melissa testified that from the time S. K. was bom, the mother was her primary caregiver until she was taken into shelter care by the Department in December 2009.

       The parenting class instructor had moved to Kentucky, and although she was subpoenaed, she was not available at the hearing.

       (Emphasis supplied.) OCGA § 19-8-7 (a) (2011).

       (Punctuation omitted; emphasis in original.) In re Petition of Marks, 300 Ga. App. at 239, 242 (1).

        In the Interest of A. W., 240 Ga. App. 259 (523 SE2d 88) (1999).

       (Emphasis supplied.) OCGA § 15-11-94 (b) (2011).

       (Punctuation and footnote omitted.) In the Interest of B. N. A., 248 Ga. App. 406, 410 (1) (546 SE2d 819) (2001).

       (Punctuation omitted; emphasis supplied.) In re Petition of Marks, 300 Ga. App. at 242-243.

       See In re Petition of Marks, 300 Ga. App. at 246 (3).

       See id. at 240.

        Jones v. Dept. of Human Resources, 168 Ga. App. 915, 916 (1) (310 SE2d 753) (1983), quoting McCormick v. Dept. of Human Resources, 161 Ga. App. 163, 164 (288 SE2d 120) (1982).

       See In re Petition of Marks, 300 Ga. App. at 246-247 (3), citing McCollum v. Jones, 274 Ga. App. 815, 823 (3) (a) (3) (619 SE2d 313) (2005) (physical precedent only); In the Interest of M. M., 263 Ga. App. 353, 359 (1), 362-363 (3) (587 SE2d 825) (2003).

       See, e.g., In the Interest of M. T. F., 318 Ga. App. 135, 147-148 (1) (c) (733 SE2d 432) (2012) (the trial court’s findings related to a parent’s ability to provide for a child could not be upheld because the court failed to explain what it considered to he “verifiable proof of income” and parent had provided evidence of supporting child’s material needs); In the Interest of M. M., 263 Ga. App. at 359 (1), 362-363 (3) (“the fact that a [parent] is unemployed, without prospects for future employment, and without any stable living arrangements is not sufficient to terminate parental rights”; termination based on the speculation that a child might be deported to a foreign country if noncitizen parent is also deported is not sufficient to support termination) (punctuation omitted); In the Interest of E. N. C., 384 SW3d 796, 807, n. 13 (Tex. 2012) (persuasive authority) (collecting cases establishing the majority of state courts have determined that “illegal status and deportation are not in themselves grounds for the termination of parental rights”).

       We note again that Alizota did not legitimate S. K. until March 2010, and although he bailed the mother out of jail after her December 2009 DUI arrest and asked if he needed to get S. K. from the Stanfields, he was told by Melissa that he could not come get her because "he wasn’t the legal father.”

       See Ira the Interest of V. S., 249 Ga. App. 502, 506 (1) (b) (548 SE2d 490) (2001) (trial court erred by terminating father’s rights under former OCGA § 15-11-94 (b) (4) (C) because only ■ seven months had elapsed between the filing of the termination petition and the hearing, which was an insufficient amount of time for completion of the father’s case plan goals based on the progress he had made at the time of the hearing), citing In the Interest of R. H., 240 Ga. App. 551, 553 (2) (524 SE2d 257) (1999). See also In the Interest of K. M., 240 Ga. App. 677, 680 (523 SE2d 640) (1999) (“evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required”) (punctuation omitted), quoting Ira the Interest of R. A., 226 Ga. App. 18, 20 (486 SE2d 363) (1997).

       See In the Interest of M. A., 280 Ga. App. 854, 857 (1) (635 SE2d 223) (2006).

       We reiterate that the adoption petition was filed within nine months of the filing of the permanent custody agreement.

       See OCGA § 15-11-94 (b) (4) (A) (iii) (2011).

       Regarding Spears’s testimony, we note that she detailed at length how little S. K. liked the room in which visitation had to occur, and she presented an extended narrative about an 80-year-old client who she hypothesized had anxiety based on an early separation from care-givers. She also testified that children should not be separated from their primary care-givers during the first two years of their life in order to be able to form healthy attachments. Although this premise may be based on reliable, valid scientific research, it is not in keeping with the principles of this State’s law surrounding termination of parental rights and reunification with biological parents as the first goal after a removal. In any event, at the time of the petition, Alizota had agreed to allow the Stanfields to have permanent custody of S. K, and he did not appear poised to move immediately for a change of custody until the Stanfields began barring him bom visiting with the child and moving for adoption.

       See In the Interest of V. S., 249 Ga. App. at 506 (1) (b).


author: MCFADDEN, Judge.

text:
    A14A0812.
    ROBINSON v. THE STATE.
    (765 SE2d 715)
   MCFADDEN, Judge.

Appellant Shaheed Robinson was indicted and tried before a jury for aggravated assault and aggravated battery of two alleged victims. He was acquitted of aggravated battery as to both but convicted of aggravated assault of one of them. The trial court granted a mistrial on the count alleging aggravated assault of the second alleged victim. Robinson appeals his conviction, arguing that trial counsel was ineffective. Specifically, he argues that trial counsel should have objected to a detective’s testimony about a nontestifying co-defendant’s statement. Because Robinson has not shown that there is a reasonable probability that the outcome of the proceeding would have been different had trial counsel handled the detective’s testimony in another manner, he has not shown ineffective assistance of counsel. We therefore affirm.

Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013), the evidence shows that Robinson, co-defendant Timothy Amey, and the second alleged victim were at a club together. After leaving the club, the second alleged victim brought Robinson and Amey to his residence, where the victim also lived. The four men used cocaine and drank alcohol.

Eventually, the second alleged victim drove Robinson and Amey to Amey’s apartment, and the victim rode along. When the four men arrived at the complex, the victim asked Amey if he could use the bathroom. Amey answered yes, and he and Robinson led the victim up the back stairs toward Amey’s apartment. The second alleged victim waited in the car. As they reached the apartment, Amey turned around and began stabbing the victim with a 12-inch carving knife. The victim turned, and Robinson began stabbing him, too. The victim required immediate surgery, he was in intensive care for three weeks, and he was in the hospital for two months.

Amey and Robinson returned to the car and began stabbing the second alleged victim who had been waiting there. The second alleged victim sustained a laceration to his liver, two puncture wounds to his stomach, and eight lacerations on his arms. The second alleged victim testified that Robinson sent him letters from jail, asking for forgiveness, explaining that he was a follower, not a leader, and asking him not to show up for court.

Both the victim and the second alleged victim identified Amey and Robinson in photographic lineups, and both identified Robinson in court as one of the men who stabbed them.

The state presented the testimony of Detective Chris Helton who interviewed Amey. Detective Helton testified that Amey told him that Amey was in the car when the incident occurred, that “Mr. Robinson had stabbed both of them[,] and that he was just there as basically a witness and they ran off.” On cross-examination, defense counsel confirmed with Detective Helton that Amey had told him that Robinson “actually did the stabbing; that he didn’t do anything.”

Robinson’s recorded interview was played for the jury. During the interview, Detective Jeffery Gant told Robinson that Amey admitted stabbing the passenger, but said that Robinson had stabbed the driver. Robinson eventually admitted that he had a knife during the incident and described in some detail where he and Amey had thrown the knives. He explained that he and Amey had planned to rob the men. And Robinson himself explained why Amey believed Robinson stabbed the men: he told Amey he had done so. Robinson testified at trial that he and Amey fought the men, but that he did not remember having a knife.

Robinson and Amey were indicted for the aggravated battery and aggravated assault of the victim and the second alleged victim. Amey’s trial was severed from Robinson’s, and Amey later pleaded guilty. Robinson now appeals from his aggravated assault conviction.

To prevail on his claim of ineffective assistance of counsel, Robinson must show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). The burden on Robinson to make this showing is a heavy one, Wingate v. State, 296 Ga. 21, 28 (3) (764 SE2d 833) (2014), and if he “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted). To show prejudice, Robinson must show that but for counsel’s deficiency, “there is a reasonable probability that the outcome of the proceeding would have been different.” Wingate, 296 Ga. at 28 (3) (citation omitted). Pretermitting whether counsel’s performance was deficient, Robinson cannot show prejudice.

Robinson argues that trial counsel was ineffective for failing to object when Detective Helton testified that Amey told him that Robinson had stabbed both men. He argues that trial counsel was also ineffective for failing to confront Detective Helton with his own investigative summary, which reflected that Amey admitted stabbing one of the men. We conclude that even had trial counsel objected to the detective’s testimony and confronted him with his investigative summary, there is not a reasonable probability that the outcome of the proceeding would have been different, given the overwhelming evidence that Robinson was a party to the crime.

Decided November 13, 2014.

S. Cindy Wang, for appellant.

A person may be found guilty of being a party to a crime if he intentionally aids and abets another in the commission of the crime. OCGA § 16-2-20 (b) (3).

Although an individual’s presence when a crime is committed, alone, will not be sufficient to convict that person as a party to a crime, if the individual is present and assists in the commission of the crime or shares in the criminal intent of the actual perpetrator of the crime, the individual may be convicted as a party to the crime.

Cornette v. State, 295 Ga. App. 877, 882 (3) (673 SE2d 531) (2009) (citations omitted). The trial court charged the jury on this legal principle.

Both the victim and the second alleged victim identified Robinson as stabbing them. Robinson admitted intending to rob the men, he admitted fighting the men, he admitted that he had a knife, and he admitted disposing of the knives with Amey. Even if Amey, not Robinson, actually stabbed the men, the evidence is overwhelming that Robinson nonetheless is guilty as a party to the crime. Taylor v. State, 226 Ga. App. 339, 341 (2) (486 SE2d 601) (1997); Moore v. State, 216 Ga. App. 450, 450-451 (1) (454 SE2d 638) (1995).

Robinson has not shown that “there is a reasonable probability that the outcome of the proceeding would have been different,” Browder v. State, 294 Ga. 188, 193 (4) (751 SE2d 354) (2013), had trial counsel responded differently to the detective’s testimony. He therefore has not shown that he was prejudiced by counsel’s performance, and his claim of ineffective assistance of counsel fails.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

Tracy Graham-Law son, District Attorney, Frances C. Kuo, Assistant District Attorney, for appellee.


text:
    A14A0915.
    N4D, LLC v. PASSMORE et al.
    (765 SE2d 717)
   MCFADDEN, Judge.

This appeal is from a trial court order in a business dispute on opposing motions for summary judgment. The trial court denied the plaintiff’s motion in its entirety, and granted the defendants’ motions in part and denied them in part. The plaintiff appeals, but as undisputed evidence establishes that its claims are barred by a contractual period of limitations or waived, it has failed to show that there exist genuine issues of material fact, and 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. We review a trial court’s grant of summary judgment de novo, construing the evidence, and all reasonable conclusions and inferences drawn from it, in favor of the nonmovant.

Clay v. Oxendine, 285 Ga. App. 50 (645 SE2d 553) (2007) (citations and punctuation omitted).

So viewed, the evidence shows that beginning in May 2003, 3DH Corporation and its successor-in-interest, N4D, LLC, entered into a series of software development agreements and other contracts with Passmore Labs. Passmore Labs agreed to help develop technology for the conversion of two-dimensional images into three-dimensional images for use in film and other industries. The initial software development agreement of May 2003 contained a section entitled “Statute of Limitations,” which provided: “No action, regardless of form, arising out of the services under this Agreement, may be brought by either party more than one year after the cause of action has accrued, except that an action for nonpayment may be brought within one year of the date of the last payment.” The parties amended the agreement on three occasions, but did not alter the contractual period of limitation. In July 2009, the parties entered into another software development agreement which contained the same one-year “Statute of Limitations” section.

On December 15, 2010, N4D filed a complaint against Passmore Labs, Gregory Passmore and others (collectively, “Passmore”), including claims for breach of contract, fraud and conversion. N4D claimed, among other things, that Passmore violated the terms of the agreements by entering into contracts with another entity, Legend Films, Inc., and thereby disclosing the two-dimensional to three-dimensional conversion technology. The parties filed opposing motions for summary judgment. After a hearing, the trial court granted Passmore’s motions in part and denied them in part, and denied N4D’s motion in its entirety. The trial court found, in pertinent part, that a number of N4D’s claims were barred by the contractual one-year period of limitation. N4D appeals.

1. Contractual period of limitation.

N4D first enumerates that the trial court erred in holding that N4D cannot demonstrate fraud sufficient to toll the contractual one-year period of limitation on bringing suit. We disagree.

“[Contractual periods of limitation are generally enforceable under Georgia law[.]” Hewitt Assoc. v. Rollins, Inc., 308 Ga. App. 848, 850 (1) (708 SE2d 697) (2011) (citation omitted). But if a defendant is “guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” OCGA § 9-3-96. To establish the fraud

sufficient to toll a limitation period, the plaintiff must prove that (1) the defendant committed actual fraud involving moral turpitude, (2) the fraud concealed the cause of action from the plaintiff, and (3) the plaintiff exercised reasonable diligence to discover its cause of action within the applicable limitation period. If a confidential relationship exists between plaintiff and defendant, there is a greater duty on a defendant to reveal what should be revealed, and a lessened duty on the part of a plaintiff to discover what should be discoverable through the exercise of ordinary care.

Hewitt Assoc., supra at 851 (1) (b) (citations and punctuation omitted).

In the instant case, pretermitting the issues of whether N4D has proved actual fraud involving moral turpitude, whether any such alleged fraud concealed the cause of action, and whether there was a confidential relationship between the parties, is the fact that, as early as 2008, N4D actually knew, through its predecessor in interest, of Passmore’s relationship with Legend Films. In his affidavit, the former president of 3DH stated that in July 2008 he “[i]n fact . . . believed that Passmore Lab was performing 2D to 3D conversion work for Legend [Films] at [that] time,” he understood “that Pass-more Lab claimed that [it] and Legend Films had an ownership interest in the 2D to 3D conversion technology,” and he “believed this ownership dispute was a significant and material issue that should be immediately addressed at [that] time.”

The company president further averred that in a telephone conversation and e-mail, attached as an exhibit to his affidavit, he addressed the issue with the principal owner of both 3DH and N4D, as well as board of directors members and other major figures in the company. They discussed “whether [they] should send Passmore Lab a breach notice(s), based on multiple grounds.” One of the breach grounds discussed was Passmore’s contracts with other entities, and “[o]ne such agreement that was discussed[ ] was Passmore Lab’s agreement with Legend.”

The record also contains an affidavit of the chief executive officer of N4D. In his affidavit, the CEO indicates that as early as September 2009 and no later than November 3,2009, he was told that “Passmore Lab was working with Legend Films and that Passmore Lab and Legend were directly competing against 3DH and N4D, using technology owned by 3DH and, later, N4D.”

The evidence plainly shows that N4D was aware of the alleged breach based on Passmore’s relationship with Legend as early as 2008 and no later than November 2009, and thus it had a duty to exercise reasonable diligence to discover its cause of action within the contractual one-year period of limitation.

A party may fail to exercise due diligence as a matter of law. [N4D] plainly had knowledge [of Passmore’s conduct], and this knowledge commenced the running of the [contractual period] of limitation: it was sufficient to put appellant on notice so that by the exercise of due diligence [it] should have discovered the alleged fraud.

Bauer v. Weeks, 267 Ga. App. 617, 620 (600 SE2d 700) (2004) (citations and punctuation omitted).

As the trial court correctly ruled, the undisputed evidence of record established that N4D “was on notice of its requirements to investigate/pursue its claims by November 3, 2009, at the latest, and by July 31, 2008 at the earliest. As the instant Complaint was not filed until December 15, 2010, any and all claims [N4D] brought based on and arising out of the services under the agreements are time-barred.” See Koncul Enterprises v. Fleet Finance, 279 Ga. App. 39, 41 (1) (b) (630 SE2d 567) (2006) (trial court correctly ruled that breach of contract claims were time-barred where plaintiff not only had reason to believe that breach had occurred by particular date, “but actually believed at that time that such breach had occurred”).

2. Rescission.

In July 2009, N4D and Passmore entered into a Technology Cross-License Agreement (TCLA) that was not subject to the one-year period of limitation. N4D sought rescission of that agreement, but the trial court ruled that it had waived any purported right to seek rescission. N4D enumerates this ruling as error. However its argument in support of this alleged error essentially consists of the conclusory statement that because there remain issues of fact as to fraud the trial court erred. N4D’s cursory argument in support of its enumeration of error is without merit.

It is a well settled rule that if a party who is entitled to rescind a contract because of fraud or false representation, when he has full knowledge of all the material circumstances of the case freely and advisedly does anything which amounts to the recognition of the transaction, or acts in a manner inconsistent with its repudiation, it amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable even in equity. It is incumbent upon a party who attempts to rescind a contract for fraud to repudiate it promptly on discovery of the fraud. If he does not, he will be held to have waived any objection, and to be conclusively bound by the contract as if no fraud or mistake had occurred.

Jernigan Auto Parts v. Commercial State Bank, 186 Ga. App. 267, 271 (3) (367 SE2d 250) (1988) (citation and punctuation omitted).

Here, as recounted above, the evidence plainly shows that N4D and its predecessor have known of Passmore’s working relationship with Legend Films since at least 2008 and no later than November 2009, both before and after formation of the TCLA. Accordingly, the trial court correctly ruled that N4D had waived any right to rescind the agreement and “correctly granted appellee [s’] motion for summary judgment. [Cits.]” Flair Fashions v. SW CR Eisenhower Drive, 207 Ga. App. 78, 80 (427 SE2d 56) (1993) (citations omitted).

3. Remaining enumerations.

Because of our holdings above, we need not address the appellant’s remaining enumerations of error, concerning an alternative basis for the court’s summary judgment ruling on the conversion claim and the denial of the opposing summary judgment motion.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

Decided November 13, 2014.

Wagner, Johnston & Rosenthal, Kenneth I. Sokolov, for appellant.

Andre Blaustein Kill & McCarthy, Brendan J. McCarthy, for appellees.