text:
    A11A0602.
    HOWARD v. THE STATE.
    (714 SE2d 255)
   Blackwell, Judge.

Kenneth Howard was tried by a Lowndes County jury and convicted of kidnapping and possession of a firearm during the commission of a felony. He now appeals, contending that the evidence adduced at his trial is insufficient to sustain his convictions, that the prosecuting attorney made impermissible comments about his character in the presence of the jury, and that he was deprived at trial of the effective assistance of counsel. We find no merit in these contentions and affirm his convictions.

1. We consider first whether the evidence is sufficient to sustain Howard’s convictions. To this end, we ask whether any rational jury could find proof of his guilt beyond a reasonable doubt in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010). And when we consider this question, we must keep in mind that it is for the jury, not this Court, to resolve conflicts in the evidence, weigh the evidence, and draw reasonable inferences from the evidence. Id. So, if the record contains some competent evidence to prove each element of the crimes of which the defendant was convicted, even if that evidence is controverted, we must uphold the conviction. Id.

Viewed in the light most favorable to the verdict, the evidence shows that, on May 7, 2007, the driver of a Pepsi-Cola delivery truck made a delivery to a Wal-Mart in Valdosta, where the driver stocked several vending machines and collected money from the machines, which he then put into a safe in his delivery truck. As the driver was leaving the Wal-Mart, a man jumped into the cab of the truck, pointed a handgun at the driver, and chambered a round. The gunman asked if the driver knew what he wanted, to which the driver responded that he did, and the gunman replied: “Don’t do nothing stupid, and there won’t be no trouble.” The gunman then told the driver to drive away, occasionally instructing the driver to turn onto a crossroad and eventually directing the driver to a secluded dirt road, more than six miles from the Wal-Mart. As they drove, the driver told the gunman that the driver did not know the combination to open the safe, and the gunman said that other people were following the truck and that they would be displeased if he could not get any money from the driver. The gunman finally asked the driver if he had anything else of value in the truck, and the driver offered to give the gunman credit cards and Pepsi products. The gunman declined this offer, but when the truck stopped on the dirt road, the gunman took a cell phone from the driver, exited the truck, and disappeared.

After the driver notified law enforcement of the robbery, officers spoke with a witness who said that he had seen a Pepsi-Cola delivery truck driving down the dirt road — an unusual sight, according to this witness — followed closely by a purple PT Cruiser. An investigator with the Lowndes County Sheriffs Office then reviewed video recordings from surveillance cameras at the Wal-Mart, and these video recordings show that someone drove a PT Cruiser into the Wal-Mart parking lot around three o’clock on the afternoon of the robbery and parked there for nearly two hours, moving several times to different parking spaces, all within sight of the Pepsi-Cola delivery truck, which then was parked in the front of the store. The recordings depict a passenger exiting the PT Cruiser, entering the Wal-Mart, and then returning later to the PT Cruiser. The recordings also show that, around five o’clock, the passenger again exited the PT Cruiser and began to walk toward the intersection at which, according to the delivery truck driver, a man jumped into the truck. And the recordings show that, only moments later, the driver of the PT Cruiser pulled directly in front of the delivery truck as it was leaving the Wal-Mart.

The investigator obtained a photograph of the passenger as he entered the Wal-Mart on the afternoon of the robbery, and the investigator took this photograph to the Pepsi-Cola facility at which the driver worked. Someone at the facility identified the passenger as Howard, a former Pepsi-Cola employee. The investigator then contacted Howard and arranged to interview him. Howard admitted that he had been at the Wal-Mart on May 7, but he said at first that he had gone there to meet his girlfriend. When the investigator began to probe the details of his story, Howard volunteered that he had hitched a ride with the Pepsi-Cola delivery driver, and Howard claimed that the driver had driven him home. Howard was arrested, and by monitoring telephone calls that Howard made from the jail, the investigator was able to identify the person who drove the PT Cruiser, who also was arrested. The driver of the PT Cruiser subsequently gave several statements to police, admitting in one, among other things, that he drove to a dirt road on the afternoon of May 7 and there picked up Howard.

Howard testified at his trial and told the jury that he and the driver had hatched a plan to steal soft drinks from Pepsi-Cola and sell them on the side to retailers. According to Howard, they never followed through on their plan, but when Howard saw the driver at the Wal-Mart on May 7, he flagged down the driver to ask if the driver still wanted to “hustle” soft drinks from his truck. The driver agreed, Howard said, and they drove to a convenience store to try to sell the soft drinks in the truck. At some point, however, Howard claims that he changed his mind and that the driver stopped and let him out of the truck on a dirt road.

Howard does not dispute that the evidence adduced at trial is sufficient to show that he entered the delivery truck on May 7, pointed a gun at the driver, and attempted to rob the driver, but it is insufficient, Howard says, to prove that he kidnapped the driver. Under Georgia law, “[a] person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such person against his or her will.” OCGA § 16-5-40 (a). Howard contends that the evidence adduced at his trial does not prove beyond a reasonable doubt that he abducted or stole away the driver. We disagree.

For guidance on this issue, we look to Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), in which our Supreme Court identified four factors to be considered in assessing whether a specific movement amounts to abduction or stealing away:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

284 Ga. at 702 (1). The Supreme Court also explained that the terms “abduction” and “stealing away” both “connote a literal taking from one place to another.” Id. at 700 (1) n. 3. According to Garza, the ultimate test of whether movement amounts to abduction or stealing away is whether the movement “is in the nature of the evil the kidnapping statute was originally intended to address . . . movement serving to substantially isolate the victim from protection or rescue.” Id. at 702 (1).

Considering these factors leads us inevitably to the conclusion that the evidence is sufficient to sustain the kidnapping conviction in this case. The driver was forced at gunpoint to drive more than six miles, a substantial distance. The movement from a Wal-Mart parking lot to a secluded dirt road isolated the driver and made it less likely that law enforcement officers or bystanders would discover his predicament and come to his aid. And the movement made it less likely that Howard would be seen by eyewitnesses, which gave him greater freedom to do as he wished with the driver. In short, the evidence is overwhelming that the movement in this case served “to substantially isolate the victim from protection or rescue,” and for this reason, the evidence of abduction or stealing away is more than sufficient to sustain the kidnapping conviction.

2. We consider next the contention that, while cross-examining Howard, the prosecuting attorney improperly commented on his character. Specifically, Howard complains about this line of cross-examination:

Q. And you left Pepsi-Cola Company; your last work day was October 9, 2006, wasn’t it?
A. I can’t recall. I know it was in October.
Q. October 9th?
A. I can’t recall.
Q. Termination date October 12, 2006; is that correct?
A. Excuse me?
Q. Your last day you went to work was October 9th, and your termination date was October 12, 2006, wasn’t it?
A. It was in October.

Howard says that the references to “termination date” imply that he was fired from his job at Pepsi-Cola for misconduct and, therefore, implicate his character. We disagree.

The word “termination,” used with reference to employment, means simply the “end” or “conclusion” of employment. See Webster’s New International Dictionary at 2605 (2nd ed. 1959). Whether an employee is fired for misconduct, is laid off as part of a reduction in force, or voluntarily resigns, his employment is “terminated,” so the use of the word in the context in which it was used in this case does not clearly implicate the character of the terminated employee. In that sense, this case is like Richardson v. State, 173 Ga. App. 695, 696 (2) (327 SE2d 813) (1985), in which we held that a reference to the defendant having “been in some trouble” did not put his character at issue because it was unclear what was meant by “trouble.” The prosecuting attorney did not improperly comment on Howard’s character.

3. Last, we consider whether Howard was deprived at trial of the effective assistance of counsel. To prevail on his claim of ineffective assistance, Howard must prove both that the performance of his lawyer at trial was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). To prove that the performance of his lawyer was deficient, Howard must show that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-688; see also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SC 2574, 91 LE2d 305) (1986). And to prove that he was prejudiced by the performance of his lawyer, Howard must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694 (III) (B); see also Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SC 1495, 146 LE2d 389) (2000). This burden, although not impossible to carry, is a heavy one. See Kimmelman, 477 U. S. at 382 (II) (C). Howard contends that the performance of his lawyer at trial was deficient in several respects. We will examine each of these contentions in turn.

(a) First, Howard contends that his lawyer was ineffective because he called no character witnesses at the trial. At the hearing on his motion for new trial, Howard called four witnesses, all of whom said that they would have been willing to vouch for his character at his trial. Howard himself, however, admitted that he did not even mention two of these witnesses to his lawyer before the trial, and his lawyer certainly was not ineffective for failing to call these two witnesses. See Adkins v. State, 280 Ga. 761, 762 (2) (a) (632 SE2d 650) (2006) (lawyer not ineffective for failing to identify witnesses whose existence never was brought to his attention). A third witness, who had employed Howard, had no knowledge of his reputation in the community and only knew that Howard was one of his best pool installers. The lawyer was not ineffective for failing to call this witness because his testimony was not properly admissible as evidence of good character in any event. See Thomas v. State, 282 Ga. 894, 895-896 (2) (a) (655 SE2d 599) (2008) (lawyer not ineffective for failing to call former employers, who only knew of defendant “based on his work and the limited interactions they had with him,” as character witnesses because good character evidence must be based on knowledge of general reputation in the community).

The fourth witness is Howard’s mother, and we accept that the lawyer knew of her existence before trial and that her testimony would have been admissible. Nevertheless, as a general principle, “decisions concerning whether to call character witnesses and whether to place the defendant’s character in issue are matters of strategy or tactics.” Gresham v. State, 295 Ga. App. 449, 451 (3) (671 SE2d 917) (2009) (punctuation and footnote omitted). Such matters of strategy do not amount to ineffective assistance unless the strategy is so unreasonable that “no competent attorney would have [chosen it] under similar circumstances.” Collins v. State, 300 Ga. App. 657, 659 (1) (686 SE2d 305) (2009) (citation omitted). The lawyer in this case explained that he did not call any character witnesses because he was concerned that it would open the door to harmful cross-examination and evidence of Howard’s bad character. Howard had a prior felony conviction, had several prior misdemeanor convictions for giving false information to police officers, and may have stolen money and credit cards while employed with Pepsi-Cola. As it turns out, none of these things came into evidence at trial. It was not unreasonable for Howard’s lawyer to worry that they might come in if he called good character witnesses, and the lawyer was not ineffective, therefore, for failing to call Howard’s mother at trial. See Kay v. State, 306 Ga. App. 666, 671 (5) (a) (703 SE2d 108) (2010) (lawyer not ineffective for deciding to call no character witnesses to avoid “opening the door to evidence of bad character”).

(b) Second, Howard contends that his lawyer effectively forced him to testify at trial and, to compound this error, failed to adequately prepare him to testify. But the evidence does not show that the lawyer forced Howard to testify. The lawyer explained that, during the trial, Howard concocted a new theory of defense, namely that he and the driver had planned to steal soft drinks from Pepsi-Cola and sell them on the side. The lawyer had planned to put up a different defense, and he tried to warn Howard about the risks involved in presenting his newly concocted defense, which necessarily would involve Howard admitting to a conspiracy to steal from Pepsi-Cola. Nevertheless, the lawyer advised Howard that, if he insisted upon this new theory of defense, he would have to testify because no other witness could testify about a conspiracy with the driver. This advice was neither erroneous nor improper. Moreover, Howard himself admitted that he “wasn’t given an ultimatum” and that he decided freely and voluntarily to testify.

As to the manner in which the lawyer prepared Howard to testify, the lawyer explained that his office met with Howard on five occasions, that he obtained discovery and gave copies of it to Howard, and that he explained to Howard the “basics” of “how to testify.” The lawyer said that he did not do more because he did not want it to appear that Howard had been “coached” in his testimony. A concern that a defendant — especially one with a history of dishonesty — might appear to have been coached in his testimony is not an unreasonable one. Howard has failed to carry his burden to prove that his lawyer was ineffective with respect to the advice he gave Howard about testifying and the manner in which he prepared Howard to testify.

(c) Howard also contends that his lawyer was ineffective because he did not ask for a jury charge on false imprisonment or hijacking a motor vehicle as lesser included offenses. Even if we were to assume that the lawyer ought to have asked for these charges, to show prejudice, Howard would be required to prove that, “had the charge been requested, authorized, and given, there is a reasonable probability it would have changed the outcome of the trial.” Springs v. Seese, 274 Ga. 659, 661 (3) (558 SE2d 710) (2002) (emphasis in original). The only difference between kidnapping and false imprisonment is the element of abducting or stealing away, see Williams v. State, 237 Ga. App. 555, 555 (515 SE2d 862) (1999), and as we found in Division 1, the evidence of abducting or stealing away in this case is overwhelming. And hijacking a motor vehicle carries precisely the same penalties as kidnapping a person who is 14 years of age or older, so we do not understand how it would be of any benefit to Howard to have been convicted of hijacking, rather than kidnapping. Compare OCGA § 16-5-44.1 (c) (hijacking a motor vehicle is punishable by “imprisonment for not less than ten nor more than 20 years”) with OCGA § 16-5-40 (d) (1) (kidnapping a person who is 14 years of age or older is punishable by “[¿Imprisonment for not less than ten nor more than 20 years”). Consequently, we see no reasonable probability that these jury charges, even if given, would have produced a materially different outcome for Howard.

(d) Last, Howard contends in general terms that his lawyer failed to adequately consult with him before trial about the potential consequences of a trial and the potential penalties that he faced. But the lawyer testified otherwise at the hearing, explaining that he talked with Howard about discovery, plea offers, theories of defense, whether Howard should testify, and the possible penalties that Howard would face if convicted. The trial court was authorized to credit the testimony of the lawyer about these things and reject the claim of ineffective assistance. See Thomas v. State, 285 Ga. App. 290, 293 (2) (645 SE2d 713) (2007).

Decided July 7, 2011.

John G. Edwards, for appellant.

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       See OCGA § 16-5-40 (a).

       See OCGA § 16-11-106 (b).

       These video recordings were admitted at trial and shown to the jury.

       Considering that the robber appeared to have known that a safe was inside the delivery truck, the investigator suspected that the robber might be someone known to Pepsi-Cola employees.

       Howard argues that, because the evidence is insufficient to prove kidnapping, it necessarily is insufficient to prove that he had possession of a firearm during the commission of the crime of kidnapping. His claim of insufficient evidence as to the firearm charge, therefore, is derivative of his claim of insufficient evidence as to the kidnapping charge. Howard offers no independent reason why the evidence cannot sustain the firearm conviction.

         After the Supreme Court decided Garza, the General Assembly amended OCGA § 16-5-40 and added, among other things, a provision that “[f]or the offense of kidnapping to occur, slight movement shall be sufficient; provided, however, that any such slight movement of another person which occurs while in the commission of another offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.” Ga. L. 2009, p. 331, § 1. This amendment applies, however, only to crimes committed on or after July 1, 2009.

       Howard also says that the evidence is insufficient to sustain his kidnapping conviction because he presented evidence — in the form of his own, self-serving testimony — that he entered the delivery truck with the consent of the driver. The jury, however, was authorized to reject this testimony, see Ferguson, 307 Ga. App. at 235 (1), and this testimony supplies no basis for a finding that the evidence is insufficient to sustain the convictions. And in any event, even if Howard entered the cab of the truck with the consent of the driver, the jury still was authorized to find that Howard pulled a gun after entering the cab and forced the driver at gunpoint to drive several miles.

       On appeal, Howard points out that, because he testified, the State could have impeached him with the prior convictions anyway, see OCGA § 24-9-84.1 (a) (2)-(3), so, Howard says, a concern about those convictions was no reason to turn away good character witnesses. But it is not certain that all the prior convictions would have been admitted for impeachment purposes, see OCGA § 24-9-84.1 (a) (2) (felony conviction admissible if “probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant”), and the prior convictions were not the only bad character evidence about which the lawyer might reasonably have been concerned. The lawyer might also reasonably have worried that, even if the prior convictions had been admitted as impeachment evidence during Howard’s testimony, having character witnesses cross-examined about the same prior convictions would only have called more attention to Howard’s bad character. Finally, we reiterate that, even if the prior convictions might have been admissible as impeachment, they were not admitted for that purpose.

       Even if it was unreasonable for the trial lawyer to fail to call Howard’s mother as a character witness, Howard had a history of dishonesty, as the trial court accurately observed, and we too are unconvinced that the testimony of Howard’s own mother would have made any difference at trial. See Gresham, 295 Ga. App. at 451-452 (3) (trial court “authorized to conclude that introduction of the character evidence [from a biased witness] would not have made a difference at trial”).

       As to the manner in which the lawyer prepared Howard to testify, we also note that Howard has not shown “how further preparation would have changed [his] testimony such that it would have affected the outcome of the case.” Thomas, 285 Ga. App. at 293-294 (2). Consequently, Howard cannot show prejudice.

       See OCGA § 16-5-41 (a).

       See OCGA § 16-5-44.1 (b).


source: Caselaw Access Project

author: Mikell, Judge. DILLARD, Judge,

license: Public Domain

text:
    A11A0692.
    In the Interest of A. E. S., a child.
    (714 SE2d 148)
   Mikell, Judge.

Following the grant of her application for appeal, Karla Sumlin, mother of A. E. S., appeals from the denial of her motion for new trial following the termination of her parental rights to A. E. S. by the Fulton County Juvenile Court. Finding no error, we affirm.

On appeal from a termination order, this Court views the evidence in the light most favorable to the appellee and determines 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 determine the credibility of witnesses, but defer to the trial court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.

So viewed, the evidence shows that, on October 22, 2008, two days following A. E. S.’s birth in prison, the Fulton County Department of Family and Children Services (the “Department”) filed a deprivation petition. Following a hearing, A. E. S. was adjudicated deprived by the trial court’s order of February 4, 2009. Among the findings of the juvenile court were that Sumlin gave birth while incarcerated; was without a home of her own and unable to provide housing for the child; was unemployed and unable to provide for the financial needs of the child; and that she suffered from mental health problems for which she allegedly failed to take her medication. The order further found that the identity of the putative father was unknown. Sumlin did not appeal this adjudication.

An order on permanency hearing, dated October 16, 2009 and filed November 9, 2009, found that Sumlin had had no contact with A. E. S. while the child was in the Department’s custody and had had no contact with the Department. By order dated November 9, 2009, and filed November 16, 2009, the juvenile court extended the Department’s custody of A. E. S., finding that the conditions of deprivation continued in that Sumlin had not attended and completed parenting classes, had not obtained stable and safe housing, had not obtained a source of income, and had not submitted to a psychological examination. This order further found that the whereabouts of Sumlin were then unknown. Neither of these orders was appealed.

On October 30, 2009, a Petition for Termination of Parental Rights was filed on behalf of the Department. At the beginning of the hearing on the petition to terminate, held on February 25, 2010, the juvenile court took judicial notice of the previous orders in the case. Caseworker Ruby Crump testified that she had been involved with A. E. S. since April 2009 and that Sumlin’s whereabouts were unknown for some period of time because she had been incarcerated under the name of Beyonce Knowles. Sumlin had no contact with either A. E. S. or the Department from the child’s birth in October 2008 until the hearing in February 2010. Following the birth of A. E. S., Sumlin was briefly released from prison until she was arrested for assaulting a police officer. At this point, Sumlin gave her name as Beyonce Knowles. She was found incompetent to stand trial and sent to Georgia Regional Hospital in order to stabilize her condition with medication. Sumlin was returned to Fulton County in January 2010 and, according to her, she had been treated for bipolar disorder and schizophrenia. During Crump’s meeting with Sumlin in jail on January 11, 2010, she advised Sumlin that a petition for termination of her rights had been filed, and Sumlin said she wanted the Department to keep her son until she could get out of jail. According to Crump, A. E. S. has bonded with his foster parents, in whose care he has been for 16 months. Further, according to the caseworker, a child who remains indefinitely in foster care risks suffering from “foster care drift,” making the child prone to have issues with behavior, attachment, and bonding. Although present at the hearing on the petition to terminate, Sumlin did not testify.

By order dated May 7, 2010, nunc pro tunc February 25, 2010, and filed on May 10, 2010, Sumlin’s parental rights were terminated. Among the 14 factual findings made by the juvenile court regarding Sumlin were that her whereabouts had been unknown from December 2, 2008 until October 2009; she had failed to make any efforts to contact the Department; there had been no contact between parent and child since the child had been placed in the Department’s custody; A. E. S. had no attachment or bond with Sumlin; Sumlin had a history of mental illness and a diagnosis of bipolar disorder and schizophrenia; and Sumlin was unable to provide care or a home for A. E. S.

OCGA § 15-11-94 sets out the relevant procedure for considering the termination of parental rights. First, the court must determine whether there is clear and convincing evidence of parental misconduct or inability. If there is, the court must then consider whether termination of parental rights is in the best interest of the child. In determining parental misconduct or inability, the court must find that (1) the child is deprived; (2) the lack of parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue or will not likely be remedied; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional or moral harm to the child.

Where, as here, Sumlin did not appeal the original order of the juvenile court finding that A. E. S. was deprived, she cannot now complain of that finding. The unappealed deprivation order establishes that A. E. S. is deprived within the meaning of OCGA § 15-11-94 (b) (4) (A).

Next, the juvenile court had sufficient evidence to determine that Sumlin’s inability to care for A. E. S. was the cause of the child’s deprivation. In determining whether a child lacks parental care or control, the court may consider various factors, including whether the parent failed for a period of one year or longer before the filing of the petition for termination to develop and maintain a parental bond with the child in a meaningful and supportive manner, to provide care and support, or to comply with a court ordered reunification plan.

Though “[a] parent’s incarceration does not always compel the termination of parental rights, it can support a termination when there are sufficient aggravating circumstances present.” One of the aggravating circumstances that may be considered is “whether the incarcerated parent has made an effort to communicate with the child and, despite imprisonment, maintain a parental bond in a meaningful, supportive[,] and parental manner.” Here, as repeatedly found by the juvenile court, Sumlin made no effort during the 16 months in which A. E. S. was in foster care to contact him or the Department.

In determining whether the conditions of deprivation are likely to continue, the juvenile court “may place more weight on negative past facts than promises of future conduct.”

The record also supports the juvenile court’s finding, by clear and convincing evidence, that the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to A. E. S. The same factors showing the existence of Sumlin’s misconduct or inability to care for A. E. S. also support the finding that the termination of her parental rights would be in the best interest of A. E. S. Further, the juvenile court may consider, as it did here, the child’s need for a stable home environment and the detrimental effects of prolonged foster care. Here, there was testimony regarding the bonding of A. E. S. with his foster parents, who wish to adopt him, and of the danger of foster care drift if permanency was not established for the child.

We find no error in the ruling of the juvenile court terminating the parental rights of Sumlin to A. E. S. and in denying her motion for new trial.

Judgment affirmed.

Smith, P. J., concurs. Dillard, J., concurs specially.

DILLARD, Judge,

concurring specially.

While I agree with the majority’s conclusion that the juvenile court could have found that present clear and convincing evidence warranted the termination of the natural mother’s parental rights, I do not entirely agree with its underlying reasoning and therefore specially concur in the judgment of the Court.

Specifically, I do not agree with the majority’s suggestion that a natural parent’s rights can be terminated merely because the mother failed to satisfy certain elements of the State’s reunification plan (e.g., securing stable employment and housing), or because she was not financially or emotionally capable of parenting her child at the time of the termination hearing. I likewise do not approve of the majority’s reliance “on generalized notions of permanency as a basis for terminating parental rights.” As I have previously explained,

[w]hile I do not quibble with the general proposition that children need permanency (or, for that matter, the corollary that long-term foster care can have ill effects), I find it troubling that many of our prior decisions upholding the termination of parental rights appear to rely, in part, on such generalizations without specifically tying them to particularized findings of fact, even though we have repeatedly held that a juvenile court is required to make explicit findings of fact that the child at issue — rather than some hypothetical child placed in the subject child’s situation —will suffer or is likely to suffer serious harm as a result of the continued deprivation.

Nevertheless, I do agree with the majority that the juvenile court was correct in terminating the mother’s parental rights because the record evidence shows, clearly and convincingly, that the ongoing parental relationship between the mother and A. E. S. is likely to cause the child serious, actual harm if permitted to continue. As the majority notes, the mother “made no effort during the 16 months in which A. E. S. was in foster care to contact him or the Department.”

As our Supreme Court has previously explained, it is one thing if a parent desires to care for his or her child but simply lacks the financial wherewithal or emotional capability to do so, and quite another for a parent to willfully disregard or abandon his or her parental duties. Because I believe that the case sub judice is far closer to falling into the latter category rather than the former, I agree that termination of the mother’s parental rights was constitutionally and statutorily permissible.

Decided July 7, 2011.

Cynthia A. Lain, for appellant.

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

       (Footnotes omitted.) In the Interest of F. C., 248 Ga. App. 675 (549 SE2d 125) (2001), overruled on other grounds, Miller v. State, 285 Ga. 285, 287 (676 SE2d 173) (2009).

        In the Interest of J. A., 298 Ga. App. 11, 14 (1) (679 SE2d 52) (2009) (Juvenile court properly took judicial notice of its prior findings in determining whether the children continued to be deprived.).

       OCGA § 15-11-94 (a).

       Id.

       OCGA § 15-11-94 (b) (4) (A).

        In the Interest of T. L. H., 301 Ga. App. 10, 14 (686 SE2d 478) (2009).

       Id.; accord In the Interest of J. A., supra.

       As set out in OCGA § 15-11-94 (b) (4) (B) and (C).

       (Footnote omitted.) In the Interest of M. C. L., 251 Ga. App. 132, 134 (1) (a) (533 SE2d 647) (2001).

       (Punctuation and footnote omitted.) Stills v. Johnson, 272 Ga. 645, 651 (3) (533 SE2d 695) (2000). Accord In the Interest of T. A. M., 280 Ga. App. 494, 497 (2) (634 SE2d 456) (2006).

       (Punctuation and footnote omitted.) In the Interest of A. C., 280 Ga. App. 212, 217 (1) (c) (633 SE2d 609) (2006).

       OCGA § 15-11-94 (b) (4) (A) (iv).

        In the Interest of D. S., 247 Ga. App. 569, 573 (545 SE2d 1) (2001).

        In the Interest of T. L. H., supra at 14.

        See In the Interest of M. M. S., 308 Ga. App. 614, 626 (708 SE2d 570) (2011) (Dillard, J., concurring specially).

        In the Interest of J. E., 309 Ga. App. 51, 66 (711 SE2d 5) (2011) (Dillard, J., dissenting).

        Id.

        See Thorne v. Padgett, 259 Ga. 650, 651 (386 SE2d 155) (1989).


author: Barnes, Presiding Judge.

text:
    A11A0262.
    CITY OF MOULTRIE v. PRICE et al.
    (713 SE2d 880)
   Barnes, Presiding Judge.

Bobby Price sued the City of Moultrie, alleging that he sustained losses in a fire on his property that occurred due to Moultrie’s negligent maintenance of a power line. Moultrie moved for summary judgment, arguing that Price failed to provide a proper ante litem notice as required by OCGA § 36-33-5 (b). After the trial court denied the motion, Moultrie filed an application for interlocutory appeal, which we granted. Moultrie argues the trial court erred in denying the motion for summary judgment. After reviewing the record, we find that the ante litem notice delivered to Moultrie was insufficient to satisfy the requirements of OCGA § 36-33-5. Thus, the trial court erred in denying Moultrie’s motion for summary judgment, and we reverse.

We recognize that OCGA § 36-33-5 “is in derogation of common law and must be strictly construed against the municipality,” and consider the following evidence. (Citation and punctuation omitted.) Canberg v. City of Toccoa, 245 Ga. App. 75, 77 (1) (535 SE2d 854) (2000). Price owns property in Moultrie, Georgia, where he ran a small business. On July 23, 2006, a fire occurred at Price’s property, and a corroded electric line was found to be the cause of the fire. The next day, Price and his insurance agent contacted the city, and an employee instructed them to contact another city employee who handled insurance issues. The second city employee gave Price “all the information that [he] needed about filing a claim,” including the telephone number of Moultrie’s insurance claims representative. The insurance representative instructed Price to “fax [his] losses and they’d look into it.” Price and his agent faxed to the insurer a fire report prepared by the Moultrie Fire Department and an inventory list of items destroyed in the fire. After Price received a letter from the insurer rejecting his claim, he sued Moultrie on June 25, 2008, for property damages resulting from the city’s negligence.

Satisfaction of the ante litem notice requirement is a condition precedent to bringing suit against a municipal corporation for damages resulting from injuries to person or property. OCGA § 36-33-5 (a). See also Harris-Jackson v. City of Cochran, 287 Ga. App. 722, 723 (652 SE2d 607) (2007). OCGA § 36-33-5 (b) requires a claimant “Iwjithin six months of the happening of the event upon which a claim ... is predicated” to present the claim in writing to the municipality “stating the time, place, . . . extent of the injury, . . . and the negligence [that] caused the injury.” (Emphasis supplied.) The purpose of the ante litem requirement is to give the municipality “the opportunity to investigate potential claims, ascertain evidence, and avoid unnecessary litigation.” (Punctuation and footnote omitted.) Davis v. City of Forsyth, 275 Ga. App. 747, 748 (1) (621 SE2d 495) (2005). Substantial compliance with the statute is all that is required. Id. To comply substantially, the notice must contain sufficient information so that the City can investigate the injuries alleged and determine if the claim should be settled without litigation. Id.; see Bush v. City of Albany, 125 Ga. App. 558, 559 (188 SE2d 245) (1972) (notice detailed that appellant fell on a city street into a hole that “was dangerous in character, unlighted, and without barrier to warn or protect foot passengers along said street; petitioner did not know of the existence of the said hole, and was without fault in the transaction.”).

Price claims that he satisfied the ante litem notice requirement by faxing to Moultrie the fire report and list of damaged items. He also contends that Moultrie’s “alleged negligence ... is contained within the allegations of the failing of the power line which [Moul-trie] owned and maintained.” However, the trial court erred in finding that the documents Price faxed to Moultrie were sufficient to show “the negligence which caused the injury” pursuant to OCGA § 36-33-5 (b).

While “substantial compliance” with the statute is sufficient to satisfy the requirements of OCGA § 36-33-5 (b), neither the fire department report nor the list of damaged inventory Price sent to the city’s insurer indicated that the fire was caused by the city’s negligence. In the report, the section designated for remarks by the fire officials contains a short summary of the event, in which the officials stated that an “electric power cable fell and ignited the woods” near Price’s facility. The fire “escalated due to high winds,” eventually damaging Price’s property. The inventory list does not mention the fire at all.

Although Price contends that his oral conversations with Moul-trie combined with his written notice are sufficient to comply with OCGA § 36-33-5 (b), we have held that “oral notice, even when combined with written notice, cannot satisfy the ante litem requirements.” (Citations and punctuation omitted.) Vaillant v. City of Atlanta, 267 Ga. App. 294, 296 (599 SE2d 261) (2004).

Decided July 8, 2011

Alexander & Vann, William C. Sanders, for appellant.

Joseph D. Weathers, for appellees.

Accordingly, as Price’s ante litem notice did not substantially comply with the requirements of OCGA § 36-33-5 (b), we reverse.

Judgment reversed.

Adams and Blackwell, JJ., concur.


text:
    A11A0283.
    THOMPSON v. FLOYD.
    (713 SE2d 883)
   Barnes, Presiding Judge.

Scott Thompson sued George Floyd for breach of contract, promissory estoppel, and fraud, contending that Floyd owed him money for services rendered in connection with the sale of Floyd’s business. Floyd denied owing Thompson any money, and after the parties conducted discovery, Floyd moved for summary judgment on all grounds. Following a hearing, the trial court granted the motion, and Thompson appeals. Because genuine issues of material fact exist for a jury to determine in this case, we reverse.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c); Kaplan v. City of Sandy Springs, 286 Ga. 559, 560 (1) (690 SE2d 395) (2010). A defendant may establish entitlement to summary judgment either by “presenting evidence negating an essential element of the plaintiffs claims or establishing from the record an absence of evidence to support [those] claims.” Oglethorpe Dev. Group v. Coleman, 271 Ga. 173, 173 (1) (516 SE2d 531) (1999). If a defendant establishes those requirements, the plaintiff must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review, viewing “the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

Viewed in the light most favorable to Thompson, and drawing all reasonable inferences from the evidence in his favor, the record shows that Floyd started Healthlogic Systems Corporation in 1990, and it grew to a peak of 250 employees. The company offered numerous services to health care providers, including the ability to allocate payments to particular accounts receivable. Floyd owned all of the company’s stock and had the final say in all company matters. In 2004, a Bank of America consultant discovered that the bank had lost a bid to another entity that was using one of Healthlogic’s services, and approached Floyd about establishing a relationship between the bank and Healthlogic. Healthlogic became a vendor for the bank, providing it with some components of the services the bank offered to its health care provider customers. The bank obtained financial information about Healthlogic during its vendor due diligence process, and in 2005 the bank consultant began discussing with Floyd the possibility of the bank buying Healthlogic.

In January 2006, James Basinger, the senior vice president for the bank’s global product solutions division, told Floyd that Basinger had received management approval to begin discussing a tentative sales price for Healthlogic, before commencing the full due diligence process. Basinger was the lead contact person for the bank during the ensuing sales process. He asked Floyd to sign a non-disclosure agreement (“NDA”), and after Floyd negotiated changes to the document, he signed and returned it in mid-February 2006. At some point during this time period the bank agreed to buy Healthlogic for $40 million, subject to adjustment based on due diligence findings.

Meanwhile, Floyd and Thompson were discussing the possibility that Thompson would come to work for Floyd and Healthlogic. The two men met in 2005 when Thompson was working for Per-Se Technologies, which had also been interested in buying Healthlogic. Thompson had been working at Per-Se since 1998, and as vice-president of corporate development, by 2005 he had facilitated about a dozen mergers and acquisitions. In January 2006, Per-Se closed on a deal to acquire a large company, M.C. Health. After that acquisition, Per-Se was focused on being acquired by another company, not acquiring more companies itself, and Thompson’s position was eliminated at the end of January 2006. In February and March 2006, Thompson began working for the president of Per-Se’s hospital division as that division’s vice-president of business development.

On February 26, 2006, Thompson sent Floyd an e-mail message offering to help Floyd sell Healthlogic within 12 months “on the best terms possible,” pointing out that it was a “long way from an ‘Indication of Interest’ to closing with a good deal.” In exchange for helping Floyd close the deal, Thompson sought payment of $300,000 to $500,000. Floyd responded with the following e-mail message: “1% of sail [sic] price, may add more % for over $30 (tbd) [to be determined], $1 mm at $50 mm. $10k/mo draw against fee. Deal must close before 3/31/07.” Floyd testified that this e-mail message was an initial offer to pay Thompson one percent of Healthlogic’s sales price, and possibly pay him a higher percentage if the price exceeded $30 million, with a draw of $10,000 per month against the final fee, but insisted that the offer did not include the Bank of America acquisition, which was already in process. Instead, it was an offer to pay Thompson a percentage if the Bank of America deal fell through and Thompson found another buyer. Floyd explained he made a “high risk-return” proposal, because Thompson would have been giving up his job at Per-Se, but as Thompson “sat on the sidelines” and did not accept the offer, “the opportunity changed.”

Thompson responded to Floyd’s February 2006 message in detail, agreeing to accept Floyd’s “[s luccess fee” offer of one percent up to $30 million, with any higher rate at Floyd’s discretion, but Thompson wanted $10,000 per month as compensation, not as a draw against the fee. Floyd responded that he would think about it, then on March 1, 2006, Floyd sent Thompson another message with the NDA from Bank of America attached, saying he thought it would be a good idea to “get this done” and was looking forward to “working our deal.”

On April 3, 2006, Floyd forwarded to Thompson a message from Basinger, who was the bank’s main contact for this acquisition project. Basinger had forwarded to Floyd the bank’s contact list for the project, seeking a list of Healthlogic’s contacts in return. When Thompson responded by asking if Floyd had gotten his message from the day before, Floyd said he had but was busy and would respond within a few days. Thompson replied later that same day that he was “o.k. with the timeline [Bank of America] put together[.] [W]e should probably decide as soon as possible if you think you want me to participate. I would like to, so just let me know when.”

At some point before April 4, 2006, Floyd told Basinger that Thompson was Healthlogic’s primary contact person for the day-today due diligence work on the acquisition, a role Thompson continued until the deal closed in September 2006. On April 4, 2006, Basinger sent an e-mail message to a large group of people from Healthlogic and the bank, asking them to attend an on-site meeting at the bank’s Atlanta office on April 20, 2006, for “the official face-to-face kickoff” of the due diligence process, which would be preceded by “a lot of prep work.” In response to the bank’s request for information before the meeting, Thompson gathered and compiled data and documents, some of which were incorporated into binders at a “data room” on-site for the bank’s representatives to review.

Thompson was the “point person” that Basinger worked with day to day to gather information, and Basinger tunneled requests or questions through Thompson. For example, on April 18, 2006, Thompson and Basinger exchanged messages about the bank’s inventory list, Healthlogic’s building lease, and Healthlogic’s tax returns. On Saturday, April 20, 2006, representatives of Bank of America and Healthlogic held their first in-person due diligence meeting, which Thompson coordinated with all of Healthlogic’s department representatives.

Thompson worked on the Healthlogic deal but remained on Per-Se’s payroll until Friday, May 19, 2006. On May 22, 2006, Thompson began working for Healthlogic as the CFO. On May 23, 2006, Thompson went to Floyd’s home office to discuss specifics about his duties and compensation, and obtain direction as the company’s CFO. The following afternoon, Wednesday, May 24, 2006, Thompson e-mailed Floyd a detailed “employment and engagement proposal” based on their discussions the day before. Under the proposal, Thompson’s primary job would be “to create and manage the processes whereby multiple prospective buyers will be educated on that company and its opportunities, with the intent of extracting the best overall offer for their purchase of the company.” He would also contribute additional services, including coordinating the ongoing financial audit, recruiting a company controller, preparing a company forecast tailored to individual prospective buyers, and developing new growth areas for the company. In exchange, he sought a salary of $135,000 annually and incentives based on Healthlogic’s final sale price. The incentives included a $50,000 transaction fee when the company sold, a contingent success fee of five percent of any purchase price over $35 million, and half of any working capital payments the bank made to Floyd within ninety days after the closing.

Floyd responded by e-mail later that day, saying, “We are in the ball park.” He promised to review the offer with Healthlogic’s lawyer, return a response to Thompson “that incorporates our updated contract language,” and finish their deal over the weekend. That weekend, on May 28, 2006, Thompson returned to Floyd’s home office, intending

to conclude a variety of conversations we had had over X number of months to document me coming to work for him and helping him achieve a goal. I went there for that purpose. I wanted to eliminate ambiguity for my compensation, my incentive. This was the week after I had left a job for a company I had been with for eight years, I had passed up other job opportunities, walked away from other stock option vesting. And it was done now, I was there, I was committed. I had been working for him since April. This was the document when I came up there specifically to get George to agree to our points[.]

After two or three hours of discussion, Floyd wrote out terms on the back of an envelope, signed it “George Floyd, CEO,” and gave the document to Thompson. The terms, written in an abbreviated style, provide that Thompson would receive a base pay of $11,000 a month, would be reviewed as was standard in the company, and his title would be CFO and Executive Vice President. Under the heading “Deal Participation” was written “$50k < $35MM,” “5% for each 1 MM > 35MM,” and “Paid out on liquidation event,” which meant Floyd agreed to pay Thompson $50,000 if the company sold for less than $35 million, plus five percent of any sales price greater than $35 million, to be paid when the exact amount of the sale was determined, after the bank settled on its figure for Healthlogic’s working capital. Floyd “looked me in the eye, he shook my hand, he signed [the envelope]. I felt good about it,” Thompson said. Thompson took the envelope and left the house, thinking that he had a commitment from Floyd to the terms written on the envelope.

Thompson continued to work as Healthlogic’s main contact person for the Bank of America acquisition. On May 30, 2006, a Healthlogic staff accountant e-mailed Floyd, saying he had been told Thompson would be the CFO and asking Floyd to sign and return a “new hire form.” Floyd replied that he would send in the form, and Thompson was placed on Healthlogic’s payroll, retroactive to May 22, 2006.

The acquisition closed on September 8, 2006, and Bank of America paid Floyd $40 million in exchange for all of his stock in Healthlogic. Under the purchase agreement, the bank had 90 days to review Healthlogic’s finances and then settle on the amount of the company’s “working capital,” which could have resulted in an adjustment to the sales price. During the 90-day review period after the closing date, the bank did not contest that Healthlogic’s working capital was within the range represented at the closing, and thus sought no adjustment to the purchase price. Shortly after the 90-day period passed in December 2006, Thompson sought payment of $300,000 from Floyd, based on their agreement that Floyd would pay Thompson $50,000 plus five percent of the amount by which the sales price exceeded $35 million, which was $250,000. In January 2007, Floyd said he was not going to pay Thompson that much money because the deal did not take very long to close.

Thompson initially sued both Healthlogic and Floyd for breach of contract, promissory estoppel, and fraud, but eventually dismissed the company with prejudice. Floyd moved for summary judgment, arguing that the parties never reached a final agreement and that even if they had, Thompson’s agreement was with Healthlogic, not with Floyd individually. Floyd also argued that Thompson’s promissory estoppel claim failed because he was an employee-at-will, and that his fraud claim failed because Floyd had made no false representations.

The trial court held that if an agreement existed, it was between Thompson and Healthlogic, not Floyd personally. Its order granting summary judgment to Floyd on all counts provides:

[T]his Court finds the purported compensation agreement, if any, was between Plaintiff and Healthlogic Systems Corporation, not George K. Floyd, personally. There is no evidence that Mr. Floyd personally agreed to compensate or employ Plaintiff. Plaintiff went to work for Healthlogic on May 22, 2006 and was compensated by Healthlogic for his work as its Chief Financial Officer and Executive Vice President. Plaintiffs own statements indicate that he expressly understood that his contract was with Healthlogic and not with Mr. Floyd individually.

1. Thompson argues on appeal that the trial court erred in granting summary judgment to Floyd on his breach of contract claim, arguing that questions of material fact exist over whether the parties reached an oral agreement and, if so, whether it was with Floyd personally or with the corporation. Floyd argues that the parties never reached an agreement, but even if they did, the evidence establishes as a matter of law that it was with Floyd in his capacity as CEO and agent for Healthlogic, not with Floyd as an individual.

An agent is personally liable on a contract he enters into with the express or implied understanding of the other party that the agent is binding himself individually. Wojcik v. Lewis, 204 Ga. App. 301, 304 (2) (419 SE2d 135) (1992). The other party has no duty to discover that the agent speaks for his principal and not himself; the duty lies with the agent to disclose that he speaks for the principal and he does not intend to be personally liable for the agreement. Whitlock v. PKW Supply Co., 154 Ga. App. 573, 574 (1) (269 SE2d 36) (1980). The fact that the other party is aware of a principal’s existence is not by itself enough to relieve the agent of personal liability as an agent of a disclosed principal. Id. “The contract may, depending upon the facts and circumstances, be impliedly one with the agent in his individual capacity. What was the understanding of both parties is a question of fact to be decided by the jury under the circumstances of each case.” (Citations and punctuation omitted.) Chambliss v. Hall, 113 Ga. App. 96, 99 (2) (147 SE2d 334) (1966).

Under the circumstances present in this case, Floyd’s appendage of “CEO” to his signature on the envelope is insufficient to establish as a matter of law that he made an oral agreement as an agent for Healthlogic rather than as an individual, in light of Thompson’s conflicting testimony on this point. When asked if he had made his agreement with the company or the individual, Thompson testified that he had made an agreement with Floyd and expected his fee to come from the $40 million that Floyd received, not from Healthlogic, the corporation that became a subsidiary of Bank of America. Along those lines, when asked why his contract was not listed during the due diligence review as an obligation Bank of America would assume, Thompson explained that Bank of America’s contract disclosure requirements applied only to contracts that would become Bank of America’s obligation to cover services provided after the closing. Thompson had an agreement with Floyd, and payment of his fee after the sale was Floyd’s obligation, not Bank of America’s.

In contrast, Floyd contends that the envelope document was signed on May 23, 2006, before his e-mail exchanges with Thompson on May 24, 2006. He asserts that those exchanges contained more explicit offers and counter-offers, about which the parties never reached final agreement. When asked if he intended to honor the terms on the envelope he signed, Floyd responded that he did not intend to honor them “in that form,” because he considered them simply “a high-level recap of the discussion” that would lead to “a more formal document with appropriate contract terms.” He explained that the envelope was “too ambiguous and it was not construed or constructed to be a legally binding contract between us. I threw a signature on there as a gesture of good faith just to get [Thompson] to head on out,” and expected him to respond with a proposal incorporating those terms. He further asserted that the terms addressed in the envelope document did not apply to the pending Bank of America deal, only to other potential buyers if the bank deal did not close. He further stated in his deposition that it is impossible to make a verbal commitment to issues of substance, because verbal discussions contain so much ambiguity, and that he did not make commitments of substance that were not in writing.

The parties have very different versions of the facts and of whether Thompson had an agreement, if at all, with Healthlogic or with Floyd the individual. Floyd also argues that Thompson’s reading of the contract as binding Floyd personally would render part of the contract nugatory, such as the salary terms that Thompson admits were paid by Healthlogic, not by Floyd. But assuming, as we must, that Thompson’s version of events is correct, he has established the existence of genuine issues of material fact as to whether Floyd acted individually or in his capacity as an agent of Healthlogic. Wojcik, 204 Ga. App. at 304; Whitlock, 154 Ga. App. at 574; Chambliss, 113 Ga. App. at 99. Accordingly, the trial court erred in granting summary judgment to Floyd on this ground.

2. We will consider Floyd’s alternative arguments for why summary judgment was proper. Regarding the breach of contract claim, Floyd contends the trial court’s grant of summary judgment was proper because any contract between Thompson and Floyd lacked sufficient terms to be enforceable.

Under OCGA § 13-3-1, a valid contract includes three elements: subject matter of the contract, consideration, and mutual assent by all parties to all contract terms. Lifestyle Family v. Lawyers Title Ins. Corp., 256 Ga. App. 305, 309 (1), n. 3 (568 SE2d 171) (2002). A contract need not be in writing to be valid, but “may be enforceable even though it rests only in words as remembered by the witnesses.” (Citations and punctuation omitted.) Cline v. Lee, 260 Ga. App. 164, 168 (1) (581 SE2d 558) (2003). To determine whether the parties mutually assented to all essential terms of the contract,

the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement. Where such extrinsic evidence exists and is disputed, the question of whether a party has assented to the contract is generally a matter for the jury.

(Citations omitted.) Turner Broadcasting System v. McDavid, 303 Ga. App. 593, 598 (1) (693 SE2d 873) (2010). Given the evidence as outlined previously, if we accept Thompson’s version of events, he and Floyd agreed to sufficiently specific terms about the subject matter, consideration, and assent to all relevant terms. While a promise to pay an employee “eight to fifteen percent of the stock depending on the sales price of the company,” which had not been determined, is too indefinite to be enforceable, BDI Laguna Holdings v. Marsh, 301 Ga. App. 656, 664 (3) (689 SE2d 39) (2009), here, Thompson presented sufficient evidence that his agreement with Floyd was for a definite amount of consideration. Further, contrary to Floyd’s argument, Thompson does not contend he had an employment agreement, but that he had an agreement with Floyd to be paid a percentage of the company’s sales price.

Thompson presented evidence that could allow a jury to find the contract’s subject matter was established, the parties’ consideration was definite, and the parties’ mutual assent to all terms was complete. While the parties dispute the value of Thompson’s contribution to the successful closing — Floyd described it as “Mickey Mouse work” that involved “shuffling documents” in a manner that hundreds of people could have done, and Thompson described it as high-level negotiations and analysis crucial to handling issues that could have ended the deal altogether — these differences simply highlight that factual issues exist for a jury to determine. Therefore, Floyd was not entitled to summary judgment on Thompson’s breach of contract claim based on this alternative ground.

3. Additionally, the trial court erred in granting summary judgment on Thompson’s promissory estoppel claim. “[T]he objection of indefiniteness may be obviated by performance and acceptance of performance.” (Citation and punctuation omitted.) Pine Valley Apts. L.P. v. First State Bank, 143 Ga. App. 242, 245 (237 SE2d 716) (1977).

Further,

even if the contract in this case could be considered too indefinite to enforce, a party may enter into a contract invalid and unenforceable, and by reason of the covenants therein contained and promises made in connection with the same, wrongfully cause the opposite party to forego a valuable legal right to his detriment, and in this manner by his conduct waive the right to repudiate the contract and become estopped to deny the opposite party any benefits that may accrue to him under the terms of the agreement.

(Citations and punctuation omitted.) Reebaa Constr. Co. v. Chong, 283 Ga. 222, 224 (2) (657 SE2d 826) (2008).

The elements of the equitable doctrine of promissory estoppel are that the defendant made a promise upon which he reasonably should have expected the plaintiff to rely, the plaintiff relied on the promise to his detriment, and injustice can be avoided only by enforcing the promise because the plaintiff forwent a valuable right. Pabien Outdoor-Aiken, Inc. v. Dockery, 253 Ga. App. 729, 730-731 (560 SE2d 280) (2002). Thompson testified that in exchange for Floyd’s promise to pay a fee upon the completion of Healthlogic’s sale, Thompson left his former employer of eight years and gave up his right to future stock options that would have vested when his former employer was sold to another company six months after Thompson left. He also testified that he passed up other employment opportunities to his detriment. If a jury were to find Thompson’s version of events more credible than Floyd’s, then the jury would be authorized to find that an injustice could only be avoided by enforcing Floyd’s promise. See 20/20 Vision Center v. Hudgens, 256 Ga. 129, 135 (7) (345 SE2d 330) (1986); Sun-Pacific Enterprises v. Girardot, 251 Ga. App. 101, 106 (553 SE2d 638) (2001) (“Promissory estoppel is an equitable doctrine designed to prevent the intricacies and details of the law from frustrating the ends of justice.” (Punctuation and footnote omitted.).

Decided July 8, 2011.

Bondurant, Mixson & Elmore, Jason J. Carter, for appellant.

Contrary to Floyd’s arguments, Thompson’s promissory estop-pel claim is not precluded by the principles elucidated by Balmer v. Elan Corp., 278 Ga. 227 (599 SE2d 158) (2004). Balmer reasserts the principle that a promise of employment for an indefinite term is insufficient to support a cause of action based on either breach of contract or promissory estoppel. Id. at 230 (4); see also Barker v. CTC Sales Corp., 199 Ga. App. 742, 743 (1) (406 SE2d 88) (1991). Thompson is not bringing a claim based on a breached promise of employment for an indefinite term. His claim is based on Floyd’s alleged promise to pay Thompson for successfully closing the sale of Healthlogic to Bank of America. Thompson presented evidence that he relied on the promise and performed the work, and that Floyd closed the sale, and now Thompson seeks payment based on the promise. We therefore reverse the trial court’s grant of summary judgment to Floyd on Thompson’s promissory estoppel claim.

4. Finally, the trial court erred in granting summary judgment to Floyd on Thompson’s fraud claim.

The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.

(Citations omitted.) Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). “Given that fraud is inherently subtle, slight circumstances of fraud may be sufficient to establish a proper case. ... Moreover, it is peculiarly the province of the jury to pass on these circumstances showing fraud.” (Citations omitted.) Almond v. McCranie, 283 Ga. App. 887, 889 (2) (643 SE2d 535) (2007).

In light of the evidence as outlined previously, we conclude that Thompson presented sufficient evidence on each element of fraud to survive a motion for summary judgment. Accordingly, we reverse the trial court’s grant of summary judgment on this claim to Floyd.

Judgment reversed.

Adams and Blackwell, JJ., concur.

Mahaffey, Pickens & Tucker, Steven A. Pickens, Andrew D. Standi, Franzen & Salzano, Therese G. Franzen, for appellee.


author: Phipps, Presiding Judge.

text:
    A11A0304.
    In the Interest of T. P. et al., children.
    (713 SE2d 874)
   Phipps, Presiding Judge.

The father of twins T. P and J. R appeals the juvenile court’s order terminating his parental rights to them. Finding no merit in the father’s claims of error, we affirm.

OCGA § 15-11-94 sets forth the relevant procedure for termination of parental rights and involves two steps.

First, there must be a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

This court views the evidence in the light most favorable to the juvenile court’s ruling to determine whether any rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated.

The record shows that the children, who were born in August 2003, were placed in the custody of the Department of Family and Children Services (DFCS) within days of their birth because their mother had tested positive for cocaine. The juvenile court adjudicated the children deprived as to the mother. There initially was some dispute regarding the children’s paternity; however, by September 2004 the appellant had been established as their biological father, and the court had entered an unappealed order adjudicating the children deprived as to the father because they were without proper care and control, specifically finding that the father had not legitimated the children, he had failed to be a part of their lives, he had not provided any financial support for them during the previous 12 months, he had a history of abusing illegal drugs and had failed to complete a substance abuse treatment program, and he was without stable housing.

The father subsequently legitimated the children. He also entered into a reunification case plan with DFCS, which set goals for him to obtain substance abuse treatment, employment, stable housing, and childcare. Over the next two years, the juvenile court entered several unappealed rulings that the children continued to be deprived but found that the father was visiting the children and progressing on his case plan goals, which had expanded to include the father’s participation in parenting classes and counseling. In 2006, the court granted the father unsupervised visitation with the children.

On February 11, 2007, J. E, then three years old, returned from an unsupervised weekend visit with his father with bruises on his buttocks, legs and thighs, and that night he was admitted to the hospital. J. E reported to a DFCS caseworker that his father had struck him with a belt. The court suspended the father’s unsupervised visitation with the children.

In September 2007, the juvenile court entered an order again adjudicating the children deprived; this order was unappealed. Therein, the court noted that the father previously had achieved his case plan goals. It based the deprivation adjudication on the father’s act of striking J. E with a belt, resulting in visible injury to the child. Also that month, DFCS petitioned to end reunification services with the father and seek adoption with one of the father’s relatives. The following month, a court-appointed child advocate attorney petitioned to terminate the father’s parental rights.

The juvenile court held a series of evidentiary hearings in February, March, April and May 2008. The children’s foster mother testified to discovering J. E’s injuries when the children returned from the February 2007 visit with their father. When she asked J. E what had happened to his bottom, he replied, “[M]y daddy hurt it.” The foster mother also asked T. E what had happened, and he replied that J. E had been spanked at the father’s house. The foster mother contacted the authorities and took J. E to the hospital, where he stayed overnight. She testified that in the months following the February incident, the children began to exhibit behavioral problems, specifically aggression, at home and at school.

A physician who treated J. E at the hospital testified that he was admitted with extensive, widespread bruising. He also had some scarring on his back suggesting an older injury; the scarring was consistent with having been struck with a belt or extension cord. Based upon her examination of J. E, the physician opined that, to a reasonable degree of medical certainty, the child demonstrated signs of “both remote and recent inflicted trauma of physical abuse,” and that the trauma was “much more severe than typical accidental trauma.”

A DFCS caseworker testified that she met with the foster mother the night of February 11, 2007, and observed the child’s injuries. She asked J. E what had happened, and he responded that his father had whipped him. Another DFCS caseworker who investigated J. E’s injuries testified that the child told her his father had whipped him with a belt.

The father testified at the hearings, but when asked what had occurred during his visit with the children on February 11, he invoked his Fifth Amendment right against self-incrimination. The father testified that he was employed, had maintained a residence for three years, and had paid monthly child support for two to three years. He regularly attended individual counseling and a substance abuse support group, and had weekly supervised visitation with the children. He was no longer using any illegal drugs.

A clinical psychologist who evaluated the father in September 2005 testified that, at the time of the evaluation, he held the opinion that the father was not capable of caring for the children. The father’s cognitive functioning was well below what was typical for someone his age. As a result, in the psychologist’s opinion, the father would have significant problems managing his affairs and making daily parenting decisions, including decisions about discipline. At the time of the evaluation, the father had very poorly applied the principles and concepts he previously had been taught in parenting skills classes. The psychologist also opined that the father displayed emotional instability and anger management problems. He recounted an instance in which the father, who was angry about the contents of the psychologist’s evaluation of him, called him on the telephone and yelled at him until the psychologist ended the call.

The psychologist further testified that he would not be comfortable changing his opinion of the father’s parenting capabilities without evidence that the father had been able to implement the skills learned through classes and counseling. If the father had used physical discipline on a child, to the extent alleged in this case, this would indicate to the psychologist that the father had not been able to incorporate his past therapy into his conduct and still had problems with anger modulation and control.

A case manager with an agency that provided reunification services to the father testified that the father was cooperative and compliant, and that he demonstrated appropriate parenting skills. She recalled an incident, however, where the father reacted angrily when J. E wet his pants, and she testified that the father was frustrated with the child’s toilet training progress. She stated that the father’s initial expectations regarding toilet training were too high for the children’s ages. The case manager conceded that if the allegations of abuse against the father were true, that would change her opinion regarding his parental fitness, although she still held the opinion that he could learn to be an effective parent. A friend of the father testified that the father had told him he was in trouble because he spanked one of the children for a toilet training accident.

1. In the order on appeal, which was issued on February 27, 2009, nunc pro tunc to May 14, 2008, the juvenile court found that the children were deprived, and that the father was unable to provide proper care for the children. The court cited evidence that, despite having met his case plan goals including parenting classes and counseling, the father had used physical discipline upon J. E of such severity that it led to a hospital stay for the child and the father’s arrest on a charge of child cruelty; the court also noted that it had drawn a negative inference regarding how the father would have answered questions about the February 11 incident, had he not exercised his Fifth Amendment rights. The father argues that there was not clear and convincing evidence to support the court’s findings.

A child who is without proper parental care or control is a deprived child under OCGA § 15-11-94. And, pertinently, that Code section provides that “[i]n determining whether [a] child is without proper parental care and control, the court shall consider, without being limited to, . . . evidence of past egregious conduct of the parent toward the child or toward another child of a physically . . . abusive nature.” There was clear and convincing evidence to show that the father had engaged in past egregious conduct of a physically abusive nature toward J. E by imposing physically abusive discipline on the child; specifically, there was medical evidence regarding the nature and extent of J. E’s injuries and evidence that the injuries had been inflicted by the father.

Citing In the Interest of C. L. Z., however, the father contends that evidence about the February 2007 incident, standing alone, was insufficient to show present deprivation. We held in that case that evidence of a single incident, in which a child’s legal guardian was observed screaming at the child, blindfolding her, and pushing her into a vehicle, was not clear and convincing evidence of present deprivation. In so holding, we noted the lack of evidence that the guardian “had a history of mental or emotional problems or that she routinely had difficulty controlling her anger. The evidence presented did not show that this was anything other than an isolated, albeit highly inappropriate, outburst by the [guardian].”

Unlike in In the Interest of C. L. Z., evidence was presented that the father in this case had cognitive problems that affected his ability to parent and to implement skills learned in parenting classes and counseling; that he had a history of anger management problems; that he had engaged in an angry outburst in a telephone call with the evaluating psychologist; that he had displayed anger over the issue of J. E’s toilet training; and that he had admitted to physically disciplining J. E in connection with toilet training. Moreover, the psychologist who had evaluated the father testified that, under the circumstances, he would not change his earlier opinion that the father was not capable of parenting the children. Although the father argues that there was no evidence that he engaged in any other physical discipline of the children after the February incident, the evidence showed that the father had no unsupervised visitations with the children after that date.

The juvenile court did not err in concluding that the children were deprived and that the father was unable to provide proper parental care for them.

2. The juvenile court found that the father’s inability to provide proper care for the children was likely to continue. The father argues that there was no clear and convincing evidence to support that finding, and he points to evidence that he substantially completed his case plan by obtaining stable housing and income, participating in parenting and counseling sessions, regularly visiting the children, and cooperating with DFCS. The juvenile court found, however, that the father remained unable to provide proper care for the children despite his numerous efforts. It was for the juvenile court, rather than this court, to decide what weight to give any improvements from the father’s continued counseling. And there was evidence that, as it related to anger management and child discipline, the father had not previously been able to implement the lessons and skills that he had been taught in his parenting classes and counseling sessions and that his cognitive limitations cast doubt upon his ability ever to apply those lessons.

The juvenile court did not err in finding that the deprivation was likely to continue.

3. The juvenile court found that, because of the father’s continued inability to provide proper care for the children, they remained “at risk of continued and serious physical, mental, emotional and moral harm as evidenced by the severity of the injuries sustained by [J. E] while visiting with his father.” The father argues that there was no clear and convincing evidence to support this finding. Here, the evidence showed that the father’s inability to provide proper care for the children had led to physical injury to one of the children, and that the father had not demonstrated the ability to implement what he had been taught in counseling or parenting classes to modify his conduct. We find no error in the trial court’s finding.

4. The juvenile court found that the termination of the father’s parental rights was in the children’s best interest. The father argues that this finding was error.

Decided July 8, 2011.

Good & Lee, Darice M. Good, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Jerry W. Thacker, for appellee.

The same evidence showing parental misconduct or inability may, and does here, support the required finding that termination of parental rights is in the best interest of the children. The children had been in DFCS’s custody since their birth nearly five years earlier. Over that period of time, despite his efforts, the father had not been able to establish that he could properly care for the children, such that they could be placed in his custody instead. The children’s foster mother and their aunt both expressed the desire to adopt them, and evidence was presented regarding these persons’ ability and capacity to do so. In determining the children’s best interest, the juvenile court was “authorized to consider the children’s need for a stable home situation and the detrimental effects of prolonged foster care.” Given this record, the juvenile court was authorized to find that termination was in the children’s best interest.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        In the Interest of J. R. N., 291 Ga. App. 521, 525 (2) (662 SE2d 300) (2008) (footnote omitted).

       Id.

       The mother’s parental rights later were terminated, and that termination is not at issue in this appeal.

       This and other statements by the children regarding J. P’s injuries were admitted pursuant to the child hearsay statute. See OCGA § 24-3-16.

       See In the Interest of A. A., 293 Ga. App. 471, 474 (1) (667 SE2d 641) (2008) (“Lajlthough a parent may plead the Fifth Amendment in juvenile protection proceedings, if a parent does so, the trial court may infer that a truthful answer would be harmful’’) (citations and punctuation omitted). See also Simpson v. Simpson, 233 Ga. 17, 21 (209 SE2d 611) (1974).

       See OCGA § 15-11-94 (b) (4) (A) (i) (in considering the termination of parental rights, the court must determine whether the child is a deprived child, as that term is defined in OCGA § 15-11-2); see also OCGA § 15-11-2 (8) (A) (pertinently, defining a deprived child as a child who is without proper parental care or control).

       OCGA § 15-11-94 (b) (4) (B) (iv).

       See In the Interest of K. J. M., 282 Ga. App. 72, 75 (2) (b) (637 SE2d 810) (2006) (the extent of a child’s injuries provided evidence that he was subjected to serious physical abuse while in his parent’s care and supported a finding that he and his sibling were without proper parental care or control).

       283 Ga. App. 247 (641 SE2d 243) (2007).

       Id. at 249.

       Id. (footnote omitted).

       See In the Interest of A. A., supra at 474-475 (1).

       See In the Interest of T.B., 249 Ga. App. 283, 286-287 (1) (548 SE2d 45) (2001) (juvenile court’s finding that mother’s “history and pattern of instability” was likely to continue was not supported by clear and convincing evidence, where evidence showed that, well before termination petition was filed, mother began stabilizing her life and she continued those efforts throughout the ensuing months).

       See In the Interest of R. J. D. B., 305 Ga. App. 888, 894 (1) (a) (700 SE2d 898) (2010).

       See In the Interest of R. B., 309 Ga. App. 407, 410-411 (1) (710 SE2d 611) (2011) (evidence supporting juvenile court’s finding that child’s current deprivation was likely to continue included testimony from evaluating psychologist that, even with parenting and anger management classes, the mother’s lack of cognitive capacity, communication skills, and cognitive flexibility rendered her incapable of learning the skills necessary to properly care for the child).

       See id.

       See In the Interest of I. S., 238 Ga. App. 304, 309 (520 SE2d 470) (1999) (continued deprivation due in part to mother’s violent behavior could cause serious physical harm to children). Compare In the Interest of K. D. E., 288 Ga. App. 520, 526 (1) (654 SE2d 651) (2007) (noting that there was “no testimony that a continued relationship with [the] mother would result in any potential or actual harm to the child”); In the Interest of J. M., 251 Ga. App. 380, 383-384 (4) (554 SE2d 533) (2001) (noting that the juvenile court did not set forth any facts supporting its conclusion that continued deprivation was likely to harm the children, and that there was no evidence in the record that the children’s relationship with their mother was harmful to them).

       See In the Interest of T. J., 281 Ga. App. 673, 675-676 (1) (637 SE2d 75) (2006).

       Id. at 676 (1) (citation and punctuation omitted).

       See In the Interest of D. B., 306 Ga. App. 129, 139 (2) (701 SE2d 588) (2010); In the Interest of T. J., supra.


author: Adams, Judge.

text:
    A11A0574.
    WHOOPING CREEK CONSTRUCTION, LLC v. BARTOW COUNTY BANK.
    (713 SE2d 871)
   Adams, Judge.

Appellant Whooping Creek Construction, LLC (“WCC”) brought suit against appellee Bartow County Bank (the “Bank”) and others after a check it received for payment of grading services was dishonored. The trial court granted summary judgment to the Bank, and WCC filed the present appeal. As more fully set forth below, we agree with WCC that the trial court erred by granting summary judgment to the Bank, and reverse.

WCC, a grading subcontractor, was hired by DDH Construction, Inc. to perform grading work for the construction of a daycare facility in Acworth, Georgia. DDH had been hired by Gavin Garrett, LLC, who had been hired by the general contractor on the project. Gavin Garrett and DDH both held checking accounts at the Bank. David Geros, Jr., a managing member of Gavin Garrett, was also the principal in another company named Missions Estate, LLC, and was a guarantor on a loan that Missions Estate had obtained from the Bank. On June 17, 2009 the guarantors of that loan notified the Bank they could not pay the approximately $199,363 in interest that had accrued on the debt.

Also in June 2009, WCC requested payment for grading work done at the construction site, submitting that request in the usual manner on the form required by the general contractor and including a waiver of liens. In turn, the general contractor issued a payment to Gavin Garrett which included the money owed to WCC, and Gavin Garrett transferred the money to DDH; WCC received a check for $60,452 (the “Check”) drawn on DDH’s account at the Bank on June 17, 2009.

WCC deposited the Check into its account at McIntosh Bank in Carrollton that same day, and on June 18 the Check was received by the Bank for payment, downloaded from the Federal Reserve Bank and posted as a payment on the DDH account. The next day, Friday, June 19, WCC’s McIntosh Bank account was credited for the amount of the Check, and WCC withdrew funds from that account. However, on that same day, an officer from the Bank instructed one of the Bank’s check processors to return the Check and place a hold on DDH’s account for the specific amount of the Check to prevent it from being paid. A bank employee then returned the item to the Federal Reserve Bank by keying it into a software program that the Bank used for that purpose, which included sending an electronic file to the Federal Reserve with an image of the Check showing that it had been stamped “return reason B uncollected funds hold.” The Check, however, was not marked received by the Federal Reserve until Monday June 22. WCC’s account was debited for the amount of the check, the Bank lifted the hold on DDH’s account, and transferred the funds back to Gavin Garrett’s account so that it could exercise, its right of set-off against the funds, based on the amounts owed to the Bank by Gavin Garrett pursuant to the terms of the Mission Estates loan.

The Bank then filed a separate action against Geros, Gavin Garrett and DDH, seeking a declaration that the transfer from Gavin Garrett to DDH was fraudulent, and thus the Bank properly exercised its right of set-off to those funds; a default judgment was entered for the Bank on this suit. WCC then filed the present action against the Bank for wrongful conversion, seeking the $60,452 it was owed for grading services, as well as punitive damages and attorney fees.

1. WCC first contends that the trial court erred by finding that the Bank returned the Check to the Federal Reserve prior to midnight on Friday, June 19, and thus its dishonor of the Check was timely.

Pursuant to OCGA §§ 11-4-104 (a) (10), 11-4-301 and 11-4-302, the Bank had until midnight of June 19 to return the item to the Federal Reserve Bank. WCC argues that an issue of fact exists as to whether the Check was returned by the midnight deadline because an entry on the Check shows it was not received by the Federal Reserve until June 22.

OCGA § 11-4-301 (d) (1) provides that “An item is returned . . . when it is delivered to the presenting or last collecting bank or to the clearing-house or is sent or delivered in accordance with clearinghouse rules . . . .”

As to this issue, the Bank presented the affidavit and deposition testimony of Wanda Satterfield, who had been an employee of the Bank for twenty-four years and had been a Deposit Operations Officer for three years. Satterfield testified that pursuant to the instructions of a loan officer at the Bank, a hold was placed on the Check on June 19, and that the check was returned to the Federal Reserve that day at approximately 2:10 p.m. Satterfield further testified that the Bank uses a computer software program to return items to the Federal Reserve, and that the items are keyed in and sent by electronic file back to the Federal Reserve with the images of the returned checks. Further, an exhibit was introduced which showed the items that were returned that day, including the Check issued to WCC.

WCC argues, however, that because the evidence shows that the Check was not marked received by the Federal Reserve until Monday, June 22, the trial court erred in concluding that the check was returned in a timely manner. However, we agree with the trial court that the evidence, as recited above, shows that the Check was returned by the Bank on Friday, June 19. The Bank presented uncontradicted evidence that the Check was returned to the Federal Reserve using established procedures that the Bank used every day to return dishonored checks, and that the Check was returned to the Federal Reserve approximately ten hours prior to its midnight deadline. Moreover, there is nothing in the record to suggest that these procedures somehow failed in this case; rather, the uncontra-dicted evidence shows the Check, as well as the other items returned by the Bank at the same time as the Check were in fact received by the Federal Reserve Bank. The Bank has no control over when the Federal Reserve, or any other receiving institution, marks an item received, and the fact that the Check was not marked received by the Federal Reserve until the following Monday does not, under the circumstances of this case, create an issue of fact concerning when the Bank returned the Check. Thus, the trial court did not err by granting summary judgment on this issue.

2. WCC next argues that the trial court’s reliance on the case of Green Property Corp. v. O’Callaghan, &c., PC., 177 Ga. App. 686 (340 SE2d 652) (1986) is misplaced because that case is “limited” to cases involving claims based on a bank’s alleged negligence in dishonoring a check based on a mistake, whereas the case at bar involves an intentional act of conversion. However, our holding in Green was controlled by Stewart v. C & S Nat. Bank, 138 Ga. App. 209 (225 SE2d 761) (1976), in which we held that a holder of a check which a bank refused to honor has no cause of action against the bank, but only against the drawer. As we stated in Green, “[t]he decision in Stewart is based upon a provision of the Uniform Commercial Code (UCC), OCGA § 11-3-409 (1) [now OCGA § 11-3-408] which reads in pertinent part: ‘A check . . . does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.’” Green, 177 Ga. App. at 686-687 (1). Notably, Stewart involved a claim for unlawful refusal to cash a check drawn against a solvent account, and does not appear to involve a claim for negligent dishonor. Stewart, 138 Ga. App. at 210. Thus, we do not agree that the holding in Green is limited to those situations involving negligent dishonor of a check.

WCC also argues that in this case, unlike in Green, the Bank had in fact accepted the Check, pointing to the fact that the Check was posted to the DDH account as payable on June 18, and “the money cleared to WCC’s account, and WCC withdrew the funds on June 19.” The Bank argues, however, that the Check was timely returned and it never accepted the Check. We agree. As we held in Division 1, the Bank timely returned the Check in accordance with OCGA §§ 11-4-301 and 11-4-302, and thus preserved its right to dishonor the Check. See also OCGA §§ 11-4-215 (allowing for provisional settlement of an item, which can, among other ways, be revoked by following the procedures set forth in OCGA § 11-4-301) and 11-3-409 (a) (defining “acceptance”).

3. Although that would seem to end our analysis here, and compel the affirmance of the trial court’s order granting summary judgment in favor of the Bank, WCC also makes an additional argument, relying on Barnett Bank of Atlanta v. Thurman, 213 Ga. App. 820 (446 SE2d 529) (1994), that the trial court erred by granting summary judgment on its conversion claim because the Bank had actual knowledge that the funds that passed through the accounts of Gavin Garrett and DDH were intended to discharge a debt owed to WCC.

In Thurman, the plaintiff/account holder had received one check from the sale of four tractors at an auction. Of the four tractors sold, only one tractor belonged to plaintiff and the other three tractors were owned by Edward Thurman. The plaintiff testified that he took the check to deposit it at his bank, and at the time he deposited the check, he informed the bank officer that the funds he was depositing included the amounts received in the sale for Thurman’s three tractors, and that he asked the bank officer when Thurman could get his money from the bank. Subsequently, the bank set-off funds from the plaintiffs account, including those belonging to Thurman for the sale of his tractors, and Thurman sued the account holder, who in turn brought a third-party action against the bank for conversion. In upholding the jury’s verdict in favor of Thurman, this Court, quoting Cotton States Mut. Ins. Co. v. C & S Nat. Bank, 168 Ga. App. 83, 87 (2) (308 SE2d 199) (1983) stated:

[UJnless funds deposited with a lending bank are in an account governed by an agreement which designates the funds as trust funds, or unless the lending hank by other means has actual knowledge that the funds deposited in a general account are intended to discharge a specfic obligation or otherwise partake of the character of trust funds, then the funds are treated as any other general deposit funds . . . and are subject to set-off. . . .

(Emphasis supplied.) Thurman, 213 Ga. App. at 821 (1).

Thus, stated slightly differently, even where the right of set-off against a depositor exists, that

right has application only to general deposit funds, which are commingled with other funds on deposit with the bank, and not to receipts which are designated as trust funds or are received by the bank with knowledge that they are intended to discharge a particular obligation, such that they partake of the character of trust funds.

(Emphasis supplied.) National City Bank of Rome v. Busbin, 175 Ga. App. 103, 105 (3) (332 SE2d 678) (1985).

In this case, WCC introduced an affidavit from one of its members who averred that he had spoken with the president of the Bank about the returned Check, and that the president acknowledged that he knew that the Check was paid to WCC for work WCC performed as a subcontractor under DDH and that he knew where the funds came from. Thus it appears to us that a material question of fact exists concerning whether the Bank had actual knowledge that the funds which first were deposited in the Gavin Garrett account and then the DDH account were being held for the purpose of discharging a debt owed to WCC, and WCC was therefore entitled to a jury trial on whether the Bank’s appropriation of those funds constituted a wrongful conversion. Compare Smeltzer v. Bank of Fitzgerald, 192 Ga. App. 747 (386 SE2d 406) (1989) (bank had no knowledge that funds were intended to go into a different account).

Decided July 8, 2011.

Price, Pyles, Dangle, Parmer & Rooks, Thomas E. Parmer, for appellant.

Akin & Tate, William M. Akin, for appellee.

Judgment reversed.

Barnes, P. J., and Blackwell, J., concur.