author: Ellington, Chief Judge.

text:
    A11A0390.
    COTTON v. SMITH et al.
    (714 SE2d 55)
   Ellington, Chief Judge.

On the morning of September 3, 2008, a LaGrange High School front office employee allowed a 14-year-old student, N. E, to leave school with a middle-aged man who claimed to be the girl’s uncle. Shortly thereafter, the man, a 52-year-old convicted felon who had given the employee a fake name and who was not related to N. E, took her to a house and molested her. N. F.’s mother, LaTasha Cotton, as parent and next friend of the girl, filed a negligence suit against the employee, Deann Smith, and her supervisor, school principal Steven Cole, in their individual capacities. Cotton now appeals from an order of the Superior Court of Troup County granting summary judgment in favor of both defendants. Cotton contends that the trial court erred in finding as a matter of law that Smith’s duties in determining whether to release a student from school were discretionary in nature, not ministerial, and that, as a result, Smith was entitled to official immunity from liability for her claims. Cotton also argues that the court erred in finding, alternatively, that, even if Smith violated a ministerial duty, such violation was not the proximate cause of N. F.’s injuries, because they were the result of an unforeseeable criminal act by a third party. As explained below, we reverse the trial court’s grant of summary judgment to Smith, while the court’s grant of summary judgment to Cole is affirmed by operation of law.

1. As an initial matter, Cotton has failed to assert on appeal any error in the trial court’s grant of summary judgment to Cole. Thus, any error in that portion of the court’s order is deemed abandoned, and the court’s grant of summary judgment to Cole is affirmed by operation of law. See Court of Appeals Rule 25 (c) (2); Lang v. Becham, 243 Ga. App. 132 (530 SE2d 746) (2000) (because the appellant presented no specific argument, cited no authority, and made no reference to the transcript or record to support a claim of error regarding the grant of summary judgment to one of the appellees, any error as to that appellee was deemed abandoned).

2. Cotton contends that the trial court erred in finding as a matter of law that Smith’s duties in determining whether to release a student from school were discretionary in nature, not ministerial, and that, as a result, Smith was entitled to official immunity from liability for her claims.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment[,] the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006). Viewed in this light, the record shows the following, undisputed facts.

On September 3, 2008, N. F. was a 14-year-old freshman student at LaGrange High School, which had an enrollment of approximately 1,400 students. The school maintained a computerized “master file” on each student which contained, among other things, a list of people who were authorized to check the student out of school during regular school hours. Further, all incoming students that year received a copy of LaGrange High School’s “Student Planner 2008-2009,” which contained the following relevant provision in the section entitled “Check Out Early”:

Students checking out of class early must check out on their “early out record” card in the front office. A parent note, doctor appointment note, court appearance summons, or other certified documentation must be presented to the attendance clerk at the time of check out each time a student checks out. The note must have a phone number whereby the parent can be reached by an administrator for verification. . . . Students without a note will not be granted permission to leave. Students will not be granted permission to leave based on telephone requests. Students without notes must be signed out by a parent or guardian.

(Emphasis in original.) Defendant Smith, the front office employee, admitted during her deposition that she was familiar with the student planner and the quoted provision and that the planner contained “rules” that tell school employees and students what they are supposed to do and what the school expects from them. In fact, Smith admitted that she considered the above provision to be a “requirement” that had to be met before a student would be allowed to leave school early, adding that she checked students in and out of school “at least 150 times a day.” During his deposition, the school principal, Cole, agreed that compliance with the provision was mandatory, and he testified that the purpose of the rules in the student planner was, at least in part, to protect the students.

Although the 2008-2009 school year started in early August 2008, N. F. did not start her freshman year until mid-August, about two weeks before the incident at issue in this case. N. F. had not checked out of school through the front desk prior to September 3, however, and Smith admitted that, on that date, she did not know N. F. or the girl’s parents. N. F.’s computerized master file showed that the only people who were authorized to check her out were her mother, Cotton, and her father, “Vincent Cameron.” Even so, at approximately 9:37 a.m. on September 3, a middle-aged man approached Smith at the school’s front desk and told her that he was there to check N. F. out of school for an appointment. Smith did not recognize the man, who was later identified as 52-year-old convicted felon Joseph Hardy, so she asked him for his name, and Hardy responded that he was the girl’s uncle, “Frank F_” Smith did not ask to see Hardy’s driver’s license or other identification, but had him sign a “check-out card” for N. F. while she called N. F.’s class and asked her to come to the front desk. Shortly thereafter, N. F. arrived at the front desk and then left school with Hardy. According to N. E, Hardy told her that her mother had asked him to pick her up from school and that her mother was going to meet them. Hardy then drove N. F. to his daughter’s house, where he molested her.

Cotton filed suit against Smith and Smith’s supervisor, school principal Cole, contending that Smith was negligent in releasing N. F. to Hardy and that Cole negligently supervised Smith. In response to the defendants’ assertion that they were protected by official immunity, Cotton contended that, when Smith failed to ask Hardy for identification to confirm his name and failed to check N. F.’s master file to see if “Frank F_” was authorized to check N. F. out from school, Smith breached her ministerial duty to take specific actions that were mandated by the school and the county school board.

In support of these contentions, Cotton showed, in addition to the above evidence, that the Troup County School System had an “Emergency Preparedness Plan” for LaGrange High School and that the plan included two relevant sections. The section entitled “F. School Visitors,” stated as follows:

The Troup County staff considers the parents of its student[ ]s one of its greatest assets. While all parents are encouraged to be active participants in the education of their children, several measures are taken to ensure that the open-door policy does not jeopardize the safety of the students or staff. . . . Signs are posted on all doors welcoming visitors by directing them to the office. Once in the office, visitors must state the nature of their business and will be asked for identification if the office staff does not know them.

(Emphasis supplied.) Further, the section entitled “G. Student Sign-In and Out,” included the following provision:

Students who arrive after the tardy bell must be signed-in. Parents or other authorized persons who wish to pick up students before regular dismissal time must report to the office to sign the student out. Office staff will routinely ask for picture ID and check[ ] to see [if] that person is on the list of those authorized to pick up that particular student. Students are then called to the office [,] where they are signed out. Any student who leaves early must be signed out through the office.

(Emphasis supplied.) Moreover, Cotton showed that the Troup County Board of Education’s “Administrative Regulations, Dismissal Precautions” contained the following relevant directions for “Early Dismissal” of students:

1. When a child leaves school early, a note, stating the time of departure and the reason for leaving, should be sent to the office. . . .
4. Occasionally, divorced parents or other relatives request permission to take a child from school. When the other parent has been given legal custody of the child, principals must be very tactful. In case there is [a] question about the right of the parent or relative to take the child from school, the principal is justified in requesting the person to show evidence that helshe has legal custody of the child or permission of the legal guardian.
5. A pupil should never be released to an unidentified person.

(Emphasis supplied.)

The testimony of two of the assistant principals at LaGrange High School, Kimberly Parks and Kenneth Redding, supports a finding that the policies and procedures of both the high school and the school board are mandatory rules to be followed by all school employees. According to Parks, the rules require school employees in charge of checking students out of school to check the identification of a person picking up a student and to verify that the person is listed in the student’s master file as being authorized to do so. Parks testified that the purpose of the rules is to protect the school’s students, stating that, even though 14-year-old students are in high school, they still sometimes do “foolish things,” so the rules are designed, in part, to protect them from the consequences of their foolishness. Redding agreed that the rules require school employees to always check the identification of an adult who is trying to check out a student and to check the student’s file to see if the adult is authorized to do so. He also admitted that the rules are designed to protect the students.

In contrast to the assistant principals’ testimony, the school principal, Cole, testified that, notwithstanding the plain language of the provisions at issue, he believed school employees still had the discretion, based upon their personal judgment of the circumstances, to decide whether to ask an adult to show a driver’s license or other identification before allowing the adult to check a student out of school. According to Cole, the same was true regarding the provision directing the school’s office staff to check the student’s master file before allowing the student to leave with an adult, although Cole also admitted that the provision is a security feature intended to protect the students that was promulgated under his leadership. And, even though Cole asserted that school employees may rely on their personal judgment when deciding whether to check a student’s master file before releasing the student to an adult, he admitted that, if an employee does check the student’s file and the list of authorized people does not include the adult’s name, the student will not be allowed to leave school with the adult. Moreover, Cole admitted that he, as the principal and a school administrator, had a duty to protect the school’s students from sexual predators, including 14-year-old students who are legally incapable of consenting to any sexual activity, even if they want to. Ultimately, in an apparent contradiction of his previous deposition testimony, Cole admitted that the provisions quoted above were, in fact, “rules” governing the release of students from his school.

Similarly, Smith initially testified that, although the above-cited rules and regulations were in place in September 2008 and she was familiar with them, in her opinion, the prescribed actions were not mandatory and she was authorized to use her personal judgment and discretion when deciding whether to release a student to an adult. Smith also admitted that, despite the county’s rule that “students should never be released to an unidentified person,” she did not routinely request identification from adults who were checking out students. Smith explained that, according to her personal interpretation of the rule, a man who tells her that he is a student’s father is not “unidentified,” so she could use her discretion when deciding whether to allow him to check the student out of school. Smith also admitted that she normally did not check the school’s computerized list of people authorized to check out each student, contending that the only purpose for the list is “if there is a reason to question that person[,] in my judgment.” Smith contradicted herself during her deposition, however, when she admitted that the county’s policy that “[ojffice staff will routinely ask for picture ID and check[ ] to see [if] that person is on the list of those authorized to pick up that particular student! 1” was, in fact, a rule that she was supposed to follow.

After considering the evidence and the parties’ arguments, the trial court found that Smith’s responsibilities in releasing students from school were discretionary and that, because there was no evidence that Smith acted with malice, she was entitled to summary judgment on the basis of official immunity. We disagree.

Under Georgia law, public officials are immune from damages that result from their performance of discretionary functions, unless those functions were undertaken with malice or intent to cause injury. Absent malice or intent to injure, which are not alleged here, public school officials and employees may be held personally liable only for the negligent performance of ministerial acts. ... [A] ministerial duty is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty, while a discretionary duty requires the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. . . . [Courts] must distinguish between “rule making or deliberation” in a supervisory capacity and “a specific task which became necessary after the discretionary decision” was made. The execution of a specific task is characterized as ministerial even though the manner in which it is accomplished is left to the employee’s discretion.

(Citations and punctuation omitted; emphasis in original.) Smith u. McDowell, 292 Ga. App. 731, 733 (666 SE2d 94) (2008). Further, “[t]he determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is made on a case-by-case basis.” (Citation and punctuation omitted.) McDowell v. Smith, 285 Ga. 592, 594-595 (678 SE2d 922) (2009), affirming Smith v. McDowell, supra.

In Smith v. McDowell, a case with facts similar to the instant case, a school employee allowed the noncustodial father of a six-year-old girl to check the child out of school, even though the girl’s school information card did not list him as being authorized to check her out of school and he was not authorized to have any contact with the child due to his previous abduction of her. 292 Ga. App. at 732. The school’s receptionist, McDowell, was supposed to check the child’s information card to verify that the person picking up the child was authorized to do so and, if the card did not list the person who was seeking to check out the child, she was supposed to consult a school administrator before releasing the child, even if she had received a note or a fax from a parent. Id. at 732-733. In November 2005, McDowell received a telephone call and a fax from a woman posing as the child’s mother, instructing McDowell to release the child to her father. Id. at 732. When the father arrived, McDowell asked for and received an identification card from him confirming his name. Id. McDowell could not find the child’s information card, however, and she failed to consult an administrator. Id. McDowell simply called the child’s teacher, who sent the child to the office. Id. The child recognized her father and seemed happy to see him, and McDowell allowed them to leave the school together. Id. The child’s mother then sued McDowell for negligence.

In concluding that McDowell’s duties “presented] a clear example of a ministerial function,” Smith v. McDowell, 292 Ga. App. at 734, this Court rejected the employee’s argument that “her decision not to follow the [school] policy [on releasing students during the school day] constituted gathering facts and exercising her judgment.” Id. at 733. This Court explained that the

application of that argument. . . requires the conclusion that a school employee is “gathering facts” even when following the simplest instructions!,] and that failure to follow such instructions constitutes “exercising judgment.” Under that view, any school employee who disobeys an explicit, unambiguous written policy would be exercising discretion in doing so. This stands the plain language of the law on its head. As the Supreme Court of New Hampshire observed, “it would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail.”[]

(Punctuation omitted; emphasis in original.) Id. at 733-734. After acknowledging that “a de facto absolute immunity for school employees has developed gradually across the last decade” in the state, id. at 734, and after distinguishing several cases on their facts, this Court criticized the “effective elimination of ministerial acts on the part of school employees” and opined that “[t]here should be no special category of absolute immunity for school employees.” Id. at 735-736.

On the one hand, the General Assembly requires that parents entrust their small children to the public schools, unless they have the resources to educate them privately or at home. OCGA § 20-2-690.1. On the other hand, our courts increasingly allow school employees to avoid responsibility for all harm to the children placed in their custody by law. At some point, this accelerating trend must come to a halt. Otherwise, the most flagrant failure to follow any school policy, no matter how plainly and unambiguously stated, is “discretionary” and therefore without legal consequences. Such a decision abrogates the constitutional right of citizens to seek redress for injuries inflicted by the ministerial acts of school employees, especially upon young children who are not capable of caring for themselves or exercising judgment. If Georgia school employees are to be clothed with absolute immunity under any and all circumstances, that is a decision to be made by the Georgia General Assembly; it is not the function of this, or any, court.

(Emphasis in original.) Id. at 736-737.

Ultimately, this Court concluded that “there was a hard and fast policy with no exceptions, a policy which explicitly allowed for no discretion”; that McDowell’s conduct “constitute[d] not one, but two violations of absolute and ministerial duties”; and that McDowell “failed to act in a way that was specifically directed.” Smith v. McDowell, 292 Ga. App. at 734. In affirming this Court’s decision, the Supreme Court of Georgia agreed with these conclusions, stating that

McDowell was not called on to exercise personal judgment, examine facts, reach reasoned conclusions or act in a way not specifically directed. On the contrary, she was merely required to execute specific duties as dictated by the school checkout policies. . . . [Thus, because] McDowell’s mandated actions were simple, absolute and definite, and required the execution of specific tasks without any exercise of discretion, we conclude that they were ministerial functions.

(Citations omitted.) McDowell v. Smith, 285 Ga. at 593-594.

In the instant case, the trial court attempted to distinguish Smith v. McDowell on its facts by noting that the child in that case was in first grade, while N. F. was in high school, and that McDowell had admitted that she had no discretion regarding whether to check the student’s information card to see if the adult was authorized to pick up the child from school.

(a) The age gap between the children, however, is a distinction without a difference, particularly given the testimony in this case that the school is responsible for protecting all of its students, that the applicable rules are intended, at least in part, to protect the students, and that 14-year-old students still need some protection because they are sometimes “foolish.” Thus, the analysis of Smith v. McDowell, as well as the Supreme Court’s opinion in McDowell v. Smith, applies in this case and mandates a conclusion that N. F. was entitled to the same protections as the younger child, specifically, protections in the form of a few simple, ministerial acts to be performed before releasing the child to an adult.

(b) Further, the trial court erred in relying upon the testimony of Cole and Smith when distinguishing this case from Smith v. McDowell, and in concluding, as a matter of law, that Smith was authorized to use her personal judgment in deciding whether to follow the applicable rules and that, as a result, her duties were discretionary, not ministerial. As shown above, both Cole and Smith contradicted themselves to some extent when questioned about whether the applicable rules mandated certain acts to be performed before releasing a student from school.

Under Prophecy,[] a trial court that is faced with a party’s self-contradictory sworn testimony on a material fact should disregard the portions of that testimony that favor the party when deciding a motion for summary judgment, unless the party offers a reasonable explanation for the contradiction.

CSX Transp. v. Belcher, 276 Ga. 522, 523 (1) (579 SE2d 737) (2003). Neither Cole nor Smith offered an explanation for the change in their characterization of the rules from discretionary to mandatory. Accordingly, the trial court should have disregarded the favorable portions of their testimony to the extent such testimony was contradicted by their other admissions.

(c) Moreover, given the evidence presented, including the text of the applicable rules and the admissions of witnesses that school employees were required to follow the rules, the trial court erred in finding that there were no express rules that mandated certain ministerial acts by Smith. In fact, the evidence, when viewed in favor of Cotton, as the nonmovant, demands an alternate conclusion: that there were applicable explicit, unambiguous, written rules that required school employees to perform a few simple, ministerial acts before releasing a student to an adult.

As shown above, the school’s student planner contained a provision that, in order to be released early from school, a student must present a “parent note, doctor appointment note, court appearance summons, or other certified documentation ... to the attendance clerk at the time of check out,” that the “note must have a phone number whereby the [student’s] parent can be reached by an administrator for verification,” and that “[sjtudents without a note will not be granted permission to leave . . . [unless they are] signed out by a parent or guardian.” (Emphasis omitted.) As written, this provision places clear, simple, affirmative duties on both the student and the front desk employee responsible for checking the student out of school: the student must present a note that meets the provision’s requirements, and the employee must either confirm that the student has the note or that a parent or guardian is present to sign the student out. Both Smith and Cole admitted that compliance with this provision was mandatory, not discretionary.

In addition, as shown above, the county school board’s regulations stated affirmatively that school employees should never release a student to an unidentified person, and the school system’s Emergency Preparedness Plan requires employees to ask all visitors for identification if they do not know them and to routinely ask any adult seeking to check a student out of school to show a picture ID and to check to see if that person is on the list of those authorized to pick up that particular student. Given the admissions by Cole and the assistant principals that compliance with these rules was mandatory, Smith’s assertions that, in her opinion, Hardy was not “unidentified” due to his verbal identification of himself as “Frank F_,” and that “routinely” does not mean that employees must check an unfamiliar adult’s identification every time, are insufficient to establish, as a matter of law, that her duties under the rules were discretionary, as opposed to ministerial.

Further, Smith deposed that she believed she was only required to check a student’s master file to see if an adult was authorized to check the student out if, based upon her subjective assessment of the situation, she thought it was necessary. However, Parks, one of the assistant principals, testified that, during a conversation after the September 3 incident, she heard Smith say that, with 1,400 students in the school, the front office is always “hectic” and that she (Smith) could not go to the computer and check every student’s file before letting the student leave school. This testimony supports an inference that Smith’s decision on whether to check a student’s computer file was, at least part of the time, based on how busy she was at the moment and not, as she claimed, on her personal assessment of all of the surrounding circumstances.

Given this evidence, as well as the other admissions regarding the mandatory nature of this rule, the trial court erred in finding that Smith v. McDowell was sufficiently distinguishable on its facts from the instant case so that it was not bound by the precedent expressed therein.

Accordingly, the evidence, viewed in favor of Cotton, as the nonmovant, demonstrates that Smith’s failure to take affirmative actions that were specifically directed in the applicable rules in order to ensure that Hardy was authorized to check N. F. out of school constituted at least two violations of absolute and ministerial duties, just as in Smith v. McDowell. Therefore, the trial court erred in concluding, as a matter of law, that Smith’s duties were discretionary, not ministerial, and that she was entitled to official immunity, and in granting summary judgment to her on that basis.

3. Cotton also argues that the trial court erred in ruling that, even if Smith was not protected from liability on the basis of official immunity, Cotton’s claims must fail due to the lack of proximate causation of N. F.’s injuries. In so ruling, the trial court concluded that “Hardy’s intervening criminal acts were the proximate cause of [the] alleged injury to [N. F.],” and that “Hardy’s criminal act was not a reasonably foreseeable consequence of [Smith’s] conduct since [N. E] testified that she voluntarily left [school] with Hardy.”

Generally, an independent, intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury superseding any negligence of the defendant, unless the intervening criminal act is a reasonably foreseeable consequence of the defendant’s negligent act. In other words, the intervening criminal act of a third party, without which the injury would not have occurred, breaks the causal connection between the defendants’ negligence and the injury unless the criminal act was a reasonably foreseeable consequence of the defendants’ conduct.

(Citations and punctuation omitted; emphasis supplied.) Brown v. All-Tech Investment Group, 265 Ga. App. 889, 893-894 (1) (595 SE2d 517) (2004). Stated differently,

if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrongdoer is responsible for all of the consequences resulting from the intervening act. The rule that an intervening and independent wrongful act of a third person producing the injury, and without which it would not have occurred, should be treated as the proximate cause, insulating and excluding the negligence of the defendant, would not apply if the defendant had reasonable grounds for apprehending that such wrongful act would be committed. . . . Moreover, it is axiomatic that questions regarding proximate cause are undeniably a jury question and may only be determined by the courts in plain and undisputed cases.

(Citations, punctuation and footnote omitted; emphasis supplied.) Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 686-687 (2) (572 SE2d 533) (2002). See also Zwiren v. Thompson, 276 Ga. 498, 500 (578 SE2d 862) (2003) (“What amounts to proximate cause is undeniably a jury question and is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent.”) (citations and punctuation omitted).

Decided July 1, 2011.

Mayer & Harper, Randolph A. Mayer, Mark Harper, for appellant.

Hall, Booth, Smith & Slover, Kenneth D. Jones, Kevin A. Leipow, for appellees.

In this case, the evidence presented, when viewed in favor of Cotton, presents a jury issue on whether Hardy’s molestation of N. F. was a reasonably foreseeable consequence of Smith’s failure to perform her ministerial duties under the circumstances presented. A jury would be authorized to find that Smith could have prevented N. F. from leaving with Hardy — and, in fact, would have been required to prevent N. F. from leaving until she could consult with an administrator — if she had fulfilled even one of her ministerial duties. A jury would also be authorized to find not only that Hardy’s molestation of N. F. was a reasonably foreseeable consequence of negligently releasing the 14-year-old girl to an unidentified, unrelated, and unauthorized 52-year-old man, but that the school’s rules at issue here were specifically intended, at least in part, to avoid that very consequence.

Accordingly, the trial court erred in finding that there was no evidence of proximate cause and in granting summary judgment to Smith on that basis.

Judgment affirmed in part and reversed in part.

Miller, P. J., and Doyle, J., concur.

       There is no transcript of the summary judgment hearing in the appellate record.

       Smith admitted during her deposition that she had no independent memory of dealing with the man or with N. F. that day or of anything that was said while the man was at the front desk, adding that “there was nothing remarkable that happened at that moment.’’

       During his deposition, Hardy explained that, when he checked N. F. out of school, he used the same last name as N. F. in the hope that the school would be more likely to release N. F. to a relative, and he admitted that he did not have an identification card in his possession to give to school officials if they had asked to see it in order to confirm his identity.

       There is some evidence that, at the time of the September 3 incident, Hardy was having an affair with N. F.’s mother, Cotton, and that N. F. had met Hardy about two weeks earlier, while she was running errands with her mother.

       As a result of the incident, Hardy was charged with, and pled guilty to, forgery in the first degree, OCGA § 16-9-1; enticing a child for indecent purposes, OCGA § 16-6-5; and child molestation, OCGA § 16-6-4 (a).

       (Citations and punctuation omitted.) Hacking v. Town of Belmont, 143 N.H. 546, 552 (736 A2d 1229) (1999).

       In addition, it is undisputed that both six-year-old children and fourteen-year-old teenagers are legally required to attend school and are legally incapable of consenting to any sexual contact. See OCGA § 20-2-690.1 (mandatory school attendance for children between the ages of six and sixteen); see also OCGA §§ 16-6-3 (statutory rape); 16-6-4 (a) (child molestation); 16-6-5 (a) (enticing a child for indecent purposes).

        Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).

       Although Smith stated during her deposition that Hardy told her that he was N. F.’s “father,” she also repeatedly admitted that she had no memory of her contact with Hardy or N. F. on September 3 or anything that Hardy said at that time. See footnote 2, supra. Thus, Smith’s contradictory testimony on this issue must be construed against her and cannot support a grant of summary judgment in her favor. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. at 30 (2).

       See also Merriara-Webster Dictionary, www.merriam-webster.com (2011), defining “identity” as “the condition of being the same [as] something described or asserted”; “identify” as “to establish the identity of”; and “routine” as “a regular course of procedure[;] . . . habitual or mechanical performance of an established procedure[.]”

       Notably, Parks also testified that, as long as the front office computer is working properly, “it [does not] take long at all” to check a student’s master file to see if an adult is on the authorized persons list.

       We note that, contrary to the trial court’s ruling, the fact that N. F. testified that she “voluntarily” left with Hardy does not demand a different conclusion, as N. F. was legally required to be in school and, thus, was unable to consent to leaving at all without the authorization of her mother and the school.

       Cf. Wright v. Ashe, 220 Ga. App. 91, 92-95 (469 SE2d 268) (1996) (A high school student enrolled in summer school left the school campus without the school’s permission or knowledge and rode as a passenger in a friend’s truck. The student was killed when the friend lost control of the truck and hit a tree. This Court affirmed the grant of summary judgment to the school officials, concluding that, even if the officials were negligent in their supervision of the students, the student’s injuries were directly caused by the unforeseeable criminal act of the driver and the officials’ negligence was, at most, a remote cause of the student’s injuries.).


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A11A0461.
    CAIN v. THE STATE.
    (714 SE2d 65)
   Doyle, Judge.

A Fulton County jury found Jimmy Eugene Cain guilty of two counts of child molestation. He was sentenced to two consecutive life sentences. Following the denial of his motion for new trial, Cain filed this appeal, contending that (1) he did not knowingly waive his right to trial counsel during voir dire, and (2) the indictment was fatally defective in that each count contained two crimes. For the reasons that follow, we affirm Cain’s convictions.

1. Cain contends that the court erred by denying his motion for a continuance to obtain counsel to replace his fourth appointed counsel on the first day of trial, thereby forcing him to represent himself during voir dire with inadequate warning about the dangers of self-representation. We discern no reversible error.

A criminal defendant facing imprisonment has a Sixth Amendment right to assistance of counsel at trial, but the defendant also has a fundamental right to represent himself “when he voluntarily and intelligently elects to do so.” “The determination of whether there has been an intelligent waiver of the right to counsel must depend . . . upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” The trial judge has the serious and weighty responsibility of determining whether the accused has intelligently waived his right to counsel. Although no magic words or particular questions are required to effect a valid waiver, the record must “reflect that the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver.” Furthermore, “it is not required that the trial court probe the defendant’s case and advise the defendant as to legal strategies to ensure that a waiver is intelligently made.”

Here, the record shows that at the beginning of trial, Cain, speaking for himself, asked the court for a continuance so that his family could obtain private counsel for him. The trial court reminded Cain of his access to a series of four attorneys who had been appointed to represent him, three of whom Cain had subsequently dismissed. The court then denied Cain’s motion for a continuance because there was “no guarantee that [Cain would] not fire that lawyer. ...” Cain stated that he could not represent himself and complained of his prior counsels’ representation. The court informed Cain that, “You take the lawyer that you are given or you represent yourself. You decided on four occasions that you don’t want the lawyer that you are given, so your only option that you’ve given yourself is to represent yourself. We are going forward with this trial.”

Thereafter, the trial court confirmed that Cain did not want his currently assigned lawyer, Andrews, to represent him as lead counsel in the trial, and Cain agreed. Nevertheless, the trial court kept Andrews as standby counsel to assist Cain as needed. The prosecutor notified Cain and the court that the State was seeking a life sentence because of Cain’s prior convictions. After rejecting a 20-year plea offer in court, Cain acknowledged that he was aware that he faced a life sentence for each count of the indictment. The court also warned Cain that his prior convictions could be used against him at sentencing and to impeach him if he took the witness stand.

When the judge described his procedure for voir dire, he referenced one aspect of the dangers of self-representation due to its potential negative perception by jurors. The judge specifically instructed the jury panel that it should not “make any adverse conclusions or inferences from [Cain] choosing to defend himself or his non-lawyer blunders, if there are any. ...” The judge told Cain to understand that he has “a certain amount of anxiety when it comes to pro se litigants because [Cain is] not a lawyer.” During voir dire, Cain conducted the individual questioning for the defense. Andrews acted as counsel in various instances, such as during bench conferences and striking jurors. On the next day of trial, at Cain’s request, Andrews resumed his role as lead trial counsel.

Based on this record, we discern no reversible error. The court had emphasized the importance of counsel when telling Cain that he was offered the “full benefit of counsel” from four attorneys. The court also indicated that jurors may make “adverse conclusions or inferences from [Cain] choosing to defend himself,” as well as the possibility that Cain would commit “non-lawyer blunders.” Furthermore, the court expressed “anxiety when it comes to pro se litigants because [Cain is] not a lawyer.” Additionally, the court informed Cain that he was facing up to life in prison for each child molestation and that his prior convictions could be used at sentencing and to impeach him in front of the jury.

Moreover,

|u]nder the circumstances, the trial court was authorized to conclude that [Cain] was attempting to use the discharge and employment of other counsel as a dilatory tactic, which was the functional equivalent of a knowing and voluntary waiver of appointed counsel. In such instances, the trial court may proceed to trial with the defendant representing himself.

Cain’s discharge of three prior attorneys and his attempt to discharge a fourth on the first day of trial support the trial court’s exercise of its discretion not to further continue the trial.

A request by an indigent criminal defendant to discharge one court-appointed counsel and have another substituted in his place addresses itself to the sound discretion of the trial court. If a defendant does not show good cause for discharging his appointed attorney, the trial court does not err in requiring him to choose between representation by that attorney and proceeding pro se.

Cain has not demonstrated how his request to discharge his fourth appointed attorney was supported by good cause.

Finally, any deficiency in the trial court’s warning as to the dangers of self-representation was harmless under the facts before us. Standby counsel “provided assistance regarding procedural matters [prior to] trial, so that the defendant did not [conduct the proceedings] alone with no assistance or protection of his rights.” Standby counsel participated in bench conferences and moved to strike various jurors on behalf of Cain. Thereafter, during the trial itself, Cain was fully represented by appointed counsel, whose representation Cain does not challenge on appeal. Thus, the enumeration presents no basis for reversal.

2. Cain argues that the indictment was fatally flawed because it alleged more than one crime in each count. Cain was charged with the crime of child molestation, which is defined as follows:

A person commits the offense of child molestation when such person . . . [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. . . .

Decided July 1, 2011.

Adam M. Hames, for appellant.

Count 5 of Cain’s indictment alleged that

Cain . . . did unlawfully commit an immoral and indecent act to, with and in the presence of [A. D.], a child under the age of sixteen years, by placing accused’s finger upon and into the female sex organ of [A. D.] and by rubbing the buttocks of [A. D.] with accused’s hand, with intent to arouse and satisfy accused’s sexual desire. . . .

Count 6 of the indictment alleged that

Cain . . . did unlawfully commit an immoral and indecent act to, with and in the presence of [B. H.], a child under the age of sixteen years, by rubbing the buttocks of [B. H.] with accused’s hand and asking her if she knew about oral sex, with intent to arouse and satisfy accused’s sexual desires. . . .

“If a crime may be committed in more than one way, it is sufficient for the State to show that it was committed in any one of the separate ways listed in the indictment, even if[, as here,] the indictment uses the conjunctive rather than disjunctive form.” Here, Cain’s behavior in the indictments occurred during the time alleged in the indictments, and the evidence, including testimony from the victims, was sufficient to show that Cain committed child molestation in at least one of the ways alleged in the indictments. Therefore, this enumeration of error is without merit.

Judgment affirmed.

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

Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Assistant District Attorney, for appellee.

       OCGA § 16-6-4 (a).

       (Punctuation omitted.) Clarke v. Zant, 247 Ga. 194, 195 (275 SE2d 49) (1981).

       (Punctuation omitted.) Joyner v. State, 278 Ga. App. 60, 63 (4) (a) (628 SE2d 186) (2006), quoting Clarke, 247 Ga. at 196.

        See Bradley v. State, 298 Ga. App. 384, 385 (1) (680 SE2d 489) (2009), quoting Bollinger v. State, 272 Ga. App. 688, 689 (1) (613 SE2d 209) (2005).

        State v. Evans, 285 Ga. 67, 68 (673 SE2d 243) (2009).

       (Punctuation omitted.) Bradley, 298 Ga. App. at 385 (1).

       See Bradley, 298 Ga. App. at 386 (1).

       (Punctuation omitted.) Hobson v. State, 266 Ga. 638 (2) (469 SE2d 188) (1996).

       (Citation and punctuation omitted.) Tucker u. State, 264 Ga. App. 872, 873-874 (1) (592 SE2d 521) (2003).

       (Punctuation omitted.) Granville v. State, 281 Ga. App. 465, 468 (2) (636 SE2d 173) (2006). See also Davis v. State, 257 Ga. App. 500, 502 (1) (571 SE2d 497) (2002).

       See Granville, 281 Ga. App. at 468 (2).

       OCGA § 16-6-4 (a).

        Wilson v. State, 234 Ga. App. 375 (1) (506 SE2d 882) (1998).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Wilson, 234 Ga. App. at 375 (1).


author: Adams, Judge.

text:
    A11A0507.
    DONEGAN et al. v. DAVIS.
    (714 SE2d 49)
   Adams, Judge.

Plaintiff/appellant James Donegan, as next friend of his son, Michael “Buddy” Donegan, brought suit against the child’s mother, appellee Dorothy DeAnn Davis, and others seeking to recover damages for injuries Buddy suffered when the vehicle in which he was riding, which was being driven by Davis, collided with another vehicle. Additionally, Donegan asserted individual claims for medical expenses and loss of Buddy’s services. The trial court granted Davis’s motion for summary judgment, finding that the claims on behalf of the minor child, an unemancipated minor, were barred by the public policy doctrine of parental or family immunity and also dismissed the remainder of the claims with prejudice. Donegan appeals.

1. It is well established in Georgia that an unemancipated minor may not sue a parent for injury arising from a negligent act. Clabough v. Rachwal, 176 Ga. App. 212, 213 (335 SE2d 648) (1985); Coleman v. Coleman, 157 Ga. App. 533 (278 SE2d 114) (1981). Public policy reasons which support the parental or family immunity include: (1) disturbance of domestic tranquility, (2) danger of fraud and collusion, (3) depletion of the family exchequer, (4) the possibility of inheritance, by the parent, of the amount recovered in damages by the child, and (5) interference with parental care, discipline and control. Clabough, supra.

Blake v. Blake, 235 Ga. App. 38, 39 (508 SE2d 443) (1998). However, it is also true that

“[w]hile, under the public policy of this State, an uneman-cipated minor child has no cause of action against a parent for simple negligence, such child may maintain an action for personal injury against a parent for a wilful or malicious act, provided it is such an act of cruelty as to authorize forfeiture of parental authority.” Wright v. Wright, 85 Ga. App. 721 (2) (70 SE2d 152) [(1952)].

Buttrum v. Buttrum, 98 Ga. App. 226 (105 SE2d 510) (1958).

As is pertinent to these issues, the record shows that Donegan is the biological father of Buddy and that he legitimated his son. At the time of the collision, Donegan, Davis and Buddy lived together. It appears undisputed that Donegan no longer lives with Buddy and Davis and that Davis is now Buddy’s primary caretaker and means of support.

The record further shows that the accident in which the child was injured occurred when Davis collided with the vehicle in front of her, when that vehicle slowed in response to a collision between two other vehicles. The collision caused extensive damage to the vehicles and Buddy was ejected from the vehicle. The child suffered serious injuries as a result of the accident, and was air lifted from the scene to the hospital.

After an officer at the scene smelled a strong odor of an alcoholic beverage coming from Davis’s breath and noticed that her eyes were glossy and her speech was slurred, a blood alcohol test was performed on Davis, which revealed a blood alcohol content of 0.1999 grams, and Davis subsequently pled guilty to DUI. Davis also paid a fine for “child seat belt violation].” Additionally, Donegan points to the fact that the medical records attached to his response to Davis’s motion for summary judgment indicate that Buddy was in his car seat at the time of the accident, but “the seat was not restrained to the car.”

Pointing to these facts — that the evidence indicates Davis was extremely intoxicated and she lacked the capacity to properly attach the car seat to the car, Donegan argues that Davis’s conduct constituted a wilful and malicious act amounting to an act of cruelty sufficient to sever the parental relationship, and thus the trial court erred by granting summary judgment on the basis that Buddy’s claims were barred by the doctrine of family immunity.

First, we note that the evidence Donegan points to in support of his contention that the car seat was improperly attached to the car is contained in Buddy’s medical records and is obviously hearsay without probative value since the medical officials completing the reports would have no knowledge of why the child was thrown from the vehicle except statements made to them by others, who were not identified in the reports. Such hearsay, “[e]ven when admitted without demur . . . has no probative value. . . .” Dennis v. Adcock, 138 Ga. App. 425, 428 (2) (226 SE2d 292) (1976). And although Davis was charged and pled guilty to a child seatbelt violation, the specifics of that charge do not appear in the record. Moreover, charges of DUI child endangerment were dismissed against Davis, and it does not appear that Davis was speeding. Lastly, although Donegan interjected irrelevant evidence concerning a prior drug offense, which occurred years before the accident here, one of the incident reports indicated that the accident was not drug related. Thus, although we clearly do not condone Davis’s conduct of driving under the influence, we do not believe that the facts, taken as a whole, show that Davis committed a malicious or wilful act of such cruelty so as to authorize forfeiture of parental authority. Given that it appears undisputed that Davis is Buddy’s primary custodian and caregiver, many of the policy reasons underlying the bar of parental immunity are extant here, and thus we agree that Buddy’s claims are barred by the doctrine of parental immunity based on these public policy considerations.

Decided July 1, 2011.

Bryan C. Brunson, Brian K. Panessa, for appellants.

Kristin L. Hall, for appellee.

2. For the reasons stated in Davis’s brief on appeal, we also find the trial court properly dismissed Donegan’s claims for loss of services of the child, who was under the age of three at the time of the accident, and medical bills. See Atlanta Consolidated Street R. Co. v. Arnold, 100 Ga. 566, 567 (28 SE 224) (1897); OCGA § 19-7-1.

Judgment affirmed.

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

       Donegan also points to the fact that Davis had previously entered a guilty plea to drug charges, and points to the fact that the medical records indicate Buddy suffered withdrawal symptoms during his hospital stay after the accident. But the drug offense occurred in 2002, Buddy was born in 2004, the accident here occurred in 2006 and there is nothing to suggest that Buddy suffered withdrawal symptoms at the time of his birth or that he had illegal drugs in his system at the time he was admitted to the hospital for treatment of his injuries. Rather, the records indicate that Buddy experienced withdrawal symptoms from the pain killers he was administered while he was being treated for his injuries, and was being evaluated for “posttraumatic” seizures. Likewise, although Donegan points to various notations in the medical records in an attempt to paint a picture of deprivation existing before the accident, those same records indicate that the past medical history was “negative” and that Buddy was a “previously healthy child.”

       The unreliability of the nonmedical information contained in the medical reports is demonstrated by the fact that the records indicate that the child “was in a high-velocity impact from behind” when in fact the vehicle in which he was riding was not struck from behind, but struck the vehicle in front of it. Equally revealing as to the unreliability of the nonmedical information contained in the reports is the notation that the father “apparently” had custody even before the accident when in fact the undisputed evidence shows the mother, father and child were living together at the time of the accident. Indeed, Donegan had not pointed us to anything in the record to show that he ever had sole custody of the child.


text:
    A11A0579, A11A0778.
    ANDREWS v. FORD MOTOR COMPANY et al.; and vice versa.
    (713 SE2d 474)
   Ellington, Chief Judge.

In this products liability action, Shirley Andrews sued Ford Motor Company and Langdale Ford Company (“the Ford companies”) in the Superior Court of Lowndes County for property damages she sustained when her 2002 Ford Expedition caught fire in her garage and for punitive damages. After a hearing on the Ford companies’ motion for summary judgment, the trial court determined that Andrews is not entitled to recover from the Ford companies for damages to her car, her home, and her home’s contents to the extent that she previously received compensation for those damages from her insurers, State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company (collectively, “State Farm”). Based on this determination, the trial court granted summary judgment in part to the Ford companies and noted that, “in the event the jury returns a verdict in favor of [Andrews that exceeds the amount she previously received from State Farm], the court[,] in preparing the judgment, will reduce the jury’s verdict by the amount of compensation for items previously paid by [State Farm].” The trial court effectively denied the Ford companies’ motion for summary judgment as to Andrews’ claim for punitive damages, noting “nothing contained in this order shall prohibit [Andrews] from asserting a punitive damages claim against both [of the Ford companies].” In addition, the trial court ruled that Andrews is entitled to present evidence at trial as to the property damage she sustained and that the Ford companies are not entitled to present evidence as to any compensation paid by State Farm (or any other collateral sources).

In Case No. A11A0579, Andrews appeals, arguing that the trial court erred in granting partial summary judgment to the Ford companies because the trial court should have applied the collateral source rule to prevent the introduction of any evidence of insurance payments she received from State Farm. She also contends the trial court erred in granting the insurers’ motion to intervene.

In Case No. A11A0778, the Ford companies, as cross-appellants, contend the trial court erred in ruling that, despite its partial grant of summary judgment denying Andrews the right to recover from the Ford companies those property damage amounts paid to her by State Farm, Andrews could still introduce at trial evidence related to the damage to her car and home and could still seek punitive damages. The Ford companies argue that implicit in the trial court’s ruling is a finding that, by accepting State Farm’s payments for the damages sustained, Andrews’ right to sue passed to State Farm by assignment and subrogation and that Andrews no longer had standing to sue for those losses.

For the reasons explained below, we affirm the trial court’s partial grant of summary judgment in Case Nos. A11A0579 and A11A0778; and we vacate the trial court’s order granting State Farm’s motion to intervene in Case No. A11A0579 and remand the matter to the trial court for clarification.

The relevant facts are undisputed. On October 6, 2005, Andrews’ 2002 Ford Expedition, which was parked in her garage, spontaneously caught fire during the night as the result of an allegedly defective, factory-installed cruise control switch. The fire destroyed the Expedition and damaged Andrews’ home and its contents, including her husband’s 2004 Ford Explorer that had been parked beside the Expedition.

Shortly after being notified of the fire, State Farm began issuing checks to Andrews or her contractors for work done to clean or to repair the premises, compensating her insured losses. State Farm, pursuant to the homeowners policy, paid approximately $50,000 for damages to Andrews’ home and its contents. State Farm also made a payment pursuant to the automobile policy’s comprehensive coverage provision to the lienholder of Andrews’ Ford Expedition, paying $21,109, which represented the car’s actual cash value, taxes, and license and title fees, and which extinguished Andrews’ debt but left no net amount payable to her, other than her refunded deductible. It appears that Andrews was completely compensated for her insured losses under the terms of the policies.

Andrews brought this action against Ford Motor Company, under theories of negligence, product liability, and failure to warn, and against Langdale Ford Company, the licensed dealer from whom she had purchased the Expedition new, under theories of breach of warranty and failure to warn. Andrews seeks compensatory damages of approximately $20,000 for the loss of her car, compensatory damages of approximately $100,000 for damage to her home and its contents and for “additional living expenses,’’ and she also seeks punitive damages.

1. In Case No. A11A0579, Andrews contends the trial court erred in granting partial summary judgment to the Ford companies, arguing that the application of the collateral source rule bars the Ford companies from presenting any evidence as to insurance payments made by State Farm.

We agree that the collateral source rule bars the Ford companies from presenting evidence at trial that Andrews received compensation from her insurers. Indeed, the trial court correctly ruled as such. Andrews’ reliance on the collateral source rule as a basis for reversing the trial court’s summary judgment ruling, however, is misplaced.

Generally, the collateral source rule prevents a defendant tort-feasor from presenting evidence to the jury that the plaintiff previously received compensatory payments from another source, such as the plaintiffs own insurer. Hoeflick v. Bradley, 282 Ga. App. 123, 124 (1) (637 SE2d 832) (2006). Underlying this rule is the premise that “[a] tortfeasor cannot diminish the amount of [its] liability by pleading payments made to the plaintiff under the terms of a contract between the plaintiff and a third party who was not a joint tortfeasor.” (Citation and punctuation omitted.) Adkins v. Knight, 256 Ga. App. 394, 396 (568 SE2d 517) (2002). The trial court’s ruling in this case, which provides that the Ford companies may not present evidence of State Farm’s payments to Andrews, already provides her with the protections afforded by the collateral source rule.

Nevertheless, even when the collateral source rule applies and the court excludes from the trial evidence that the plaintiff received compensation from someone other than the tortfeasor, the rule does not provide that a plaintiff is entitled to collect from both his or her insurer and from the defendant tortfeasor for the same item of damages. Such a double recovery is prohibited under fundamental equitable principles. Carter v. Banks, 254 Ga. 550, 552 (1) (330 SE2d 866) (1985) (“[A]n insured ought not to collect damages for his [or her] loss from both his [or her] insurer and the tortfeasor, [because that would result in] a double recovery.”) (citation omitted). See also Overstreet v. Ga. Farm &c. Ins. Co., 182 Ga. App. 415, 417 (1) (355 SE2d 744) (1987) (“[A] plaintiff may not recover twice for the same loss.”). Andrews has not demonstrated any error in the trial court’s ruling that, in the event of a favorable verdict, she will not be allowed to collect from the Ford companies for her property damages to the extent she has received compensation for those damages from State Farm.

2. In Case No. A11A0778, the Ford companies contend that, as a result of the trial court’s partial grant of summary judgment, Andrews’ claims for property damage were completely extinguished. The Ford companies contend that, by virtue of Andrews accepting State Farm’s payments for her property damages, her right to sue passed to State Farm by assignment and subrogation such that Andrews has no standing to sue the Ford companies and should not be allowed to proceed to trial and present evidence on those claims. Moreover, because Andrews does not have any claims for compensatory damages apart from her claims for property damage, and because, without a valid claim for compensatory damages, a plaintiff cannot pursue a claim for punitive damages, the Ford companies contend the trial court erred in denying their motion for summary judgment on Andrews’ claim for punitive damages.

These arguments lack merit, however, as the Ford companies have misconstrued the trial court’s order. As explained in Division 1, supra, the trial court ruled that, because Andrews may not secure a double recovery, the amount of any verdict in her favor and against the Ford companies on her claims for property damage (if the award exceeds the amount she previously received from State Farm) will be reduced by the amount of compensation for those same items of damages that she previously received from State Farm. The trial court did not rule, on the other hand, that, as a matter of law, the Ford companies did not breach a duty owed to Andrews or otherwise rule that they cannot be held liable in tort for her damages under the theories of recovery alleged. Because the trial court’s judgment does not constitute a determination as a matter of law that the Ford companies are not liable on Andrews’ claims for compensatory damages, they failed to show that the trial court erred in denying their motion for summary judgment on Andrews’ claims for punitive damages.

Moreover, the fact that State Farm acquired by subrogation the right to sue Ford Motor Company to recover the payments it made to its insured for covered losses did not result in an assignment which divested Andrews of her cause of action and, therefore, which prevented her from presenting evidence of her losses at trial. State Farm did not obtain an assignment from Andrews nor did her policies of insurance create such an assignment. Because Andrews’ claims remain viable, none of the arguments posed by the Ford companies based upon theories of assignment and subrogation have merit.

3. In Case No. A11A0579, Andrews contends the trial court erred in granting State Farm’s motion to intervene in the trial of the case on the basis that State Farm is a stranger to the lawsuit and has no interest to protect. Andrews contends that allowing State Farm to intervene would permit it to “join forces with [the Ford companies] to be adversaries to their own insured.” For the reasons that follow, we vacate the court’s order granting State Farm’s motion to intervene.

We have defined intervention as the procedure by which a third person, not originally a party to a suit, but claiming an interest in the subject matter, comes into the case, in order to protect his right or interpose his claim. A true intervenor takes the case as he finds it and cannot expand the litigation; he or she merely stakes a claim to a share in the result of the pending litigation.

(Citations and punctuation omitted.) AC Corp. v. Myree, 221 Ga. App. 513, 515 (1) (471 SE2d 922) (1996). State Farm moved to intervene as a matter of right pursuant to OCGA § 9-11-24 (a) (2), which provides that, upon timely application, anyone shall be permitted to intervene in an action

[w]hen the applicant claims an interest relating to the property or transaction which is the subject matter of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Intervention does not occur until the court enters an order permitting it. See Thomas v. Jackson, 238 Ga. 90, 94 (3) (231 SE2d 50) (1976). One who is allowed by a court order to intervene acquires the status of a party and may file any pleading in the case that the original parties could have filed. See Woodward v. Lawson, 225 Ga. 261, 262 (167 SE2d 660) (1969); see also Intl. Maintenance Corp. v. Inland Paper &c., 256 Ga. App. 752, 754 (1) (569 SE2d 865) (2002) (“an intervenor [may] file whatever briefs, evidence, or other papers it chooses,” and also “may choose discovery tactics different from those of a plaintiff’).

In the instant case, the trial court’s order “granted” State Farm’s motion to intervene “upon the following conditions”: State Farm would not be allowed to participate as a party during the main action between Andrews and the Ford companies, it would not be allowed to have its name added to the caption of the case, and none of its claims would be addressed by the court until after the court had resolved the claims presented in the main action. Although the court’s order purports to grant State Farm the right to intervene, it denies State Farm the status necessary to protect any interest it may have — that of a party — and the litigation tools necessary to participate in the case as an intervenor so that it may carry out the purpose of intervention, that is, to protect whatever rights it may have or whatever claims it may seek to interpose during the pending litigation.

Given that the court’s order is the functional equivalent of denying State Farm’s motion to intervene, Andrews has not shown that she was harmed by it. Clearly, State Farm has not been allowed to participate in the trial as a party defendant so as to “join forces” against Andrews. “On appeal, a party must show harm as well as error. Because [Andrews has] not shown harm as a result of this alleged error, [her] argument is without merit.” (Citation and punctuation omitted.) Morton v. Horace Mann Ins. Co., 282 Ga. App. 734, 740 (5) (639 SE2d 352) (2006).

Nevertheless, because the court’s order appears to be contradictory, we vacate the order and remand it to the trial court to clarify whether it intended to afford State Farm the status of an intervenor, and, if it so intended, whether it had determined that the requirements of OCGA § 9-11-24 (a) (2) had been satisfied. See Brown v. Truluck, 239 Ga. 105-106 (236 SE2d 60) (1977) (upon timely application, one shall be permitted to intervene if he establishes an interest relating to the property or transaction that is the subject matter of the action; an impairment or impediment of his interest that may result from an unfavorable disposition of the action; and inadequate representation of this interest by the parties already involved).

Decided July 1, 2011.

O. Wayne Ellerbee, for appellant.

Young, Thagard, Hoffman, Smith & Lawrence, John H. Smith, Jr., Huff, Powell & Bailey, Michael R. Boorman, David A. Terry, for appellees.

Judgment affirmed in part and vacated in part and case remanded.

Miller, P. J., concurs. Doyle, J., concurs and concurs in judgment only as to Division 3.

       In a prior order, the trial court addressed State Farm’s motion to intervene in this action, allowing the insurers very limited participation. Andrews also challenges this ruling. For the reasons discussed in Division 3, infra, we vacate that ruling and remand for clarification.

       See also Paul S. Milich, Georgia Rules of Evidence, § 9:3 (2d ed., 2010-2011) (The collateral source rule reflects the fact that “our tort system is primarily concerned with allocating fault, not apportioning losses according to the parties’ ability to pay.”) (footnote omitted).

       See, e.g., Southern Gen. Ins. v. Holt, 262 Ga. 267, 270 (2) (416 SE2d 274) (1992) (“A claim for punitive damages has efficacy only if there is a valid claim for actual damages to which it could attach. Punitive damages may not be recovered where there is no entitlement to compensatory damages.”) (citations and punctuation omitted).

       Andrews contends that some of her property damages were not covered by insurance. Although it is undisputed that State Farm paid Andrews approximately $50,000 for her insured property damage to her home and its contents, her complaint alleges that she sustained damages of approximately $100,000 in damage to her home and its contents and in additional living expenses. The trial court expressly denied the Ford companies’ motion for summary judgment as to Andrews’ claim for items of property damage to her home to the extent she has not received compensation from State Farm. Accordingly, the Ford companies’ argument that the trial court’s order resolved all of Andrews’ claims for compensatory damages fails for this reason as well.

       Generally, the insurer, or subrogee, is limited to indemnification and “the subrogee is to be reimbursed only to the extent of the amounts paid in discharge of the obligation assumed by the subrogee.” (Citations and punctuation omitted.) Southern R. Co. u. Malone Freight Lines, 174 Ga. App. 405, 408 (1) (330 SE2d 371) (1985).

       The record reveals that Andrews did not execute any document that could be construed as a loan receipt or an assignment of her chose in action.

       State Farm’s auto policy contains the following subrogation provision regarding payments made under its comprehensive coverage: “[T]he right of recovery of any party we pay passes to us. Such party shall: (1) not hurt our rights to recover; and (2) help us get our money back.” Andrews’ homeowners policy contains a subrogation clause which provides:
      8. Subrogation. An insured may waive in writing before a loss all rights of recovery against any person. If not waived, we may require an assignment of rights of recovery for a loss to the extent that payment is made by us.
      If an assignment is sought, an insured shall:
      a. sign and deliver all related papers;
      b. cooperate with us in a reasonable manner; and
      c. do nothing after a loss to prejudice such rights.
      These policy provisions do not evidence an intent to assign Andrews’ cause of action, but create in the insurer a right to recover from the tortfeasor those covered damages that it paid to its insured. See Allstate Ins. Co. v. Welch, 259 Ga. App. 71, 72 (1) (576 SE2d 57) (2003) (the subrogation “rights of recovery” language in the policy did not entitle the insurer to succeed to the insured’s right of action).


text:
    A11A0620.
    FIELDS v. THE STATE.
    (714 SE2d 45)
   Doyle, Judge.

Leslie E. Fields III was convicted of misdemeanor theft by receiving stolen property, misdemeanor theft by deception, and two counts of felony theft by receiving stolen property. Following the denial of his motion for new trial, he filed this pro se appeal, enumerating numerous errors he contends the trial court committed. For the reasons that follow, we affirm in part and reverse in part.

Construed in favor of the verdict, the evidence shows that on June 11, 2009, three laptop computers were stolen from the shelf of an Office Depot in Fulton County. On June 12, 2009, Khalfani Mukabi, who was staying a few doors down from Fields at an extended-stay motel in Gwinnett County, noticed Fields offering to sell a laptop to a friend, and Mukabi expressed interest in buying it. The men agreed on a price of $375, and Mukabi paid Fields a $100 down payment, completing the transaction approximately four days later. The serial number on that laptop was later determined to match one of the computers stolen from the Office Depot.

Office Depot reported the missing laptops to its loss prevention investigator, who obtained surveillance video showing the man stealing the laptops, and who activated tracking software that ultimately identified Mukabi as the user of one laptop. Police were contacted, and they interviewed Mukabi, determining that his purchase was innocent. Police also spoke to but did not arrest Fields, who denied any wrongdoing and checked out of the motel that night. Police then obtained a warrant to search a nearby storage unit rented by Fields which Mukabi had described to police. In the storage unit, police found a substantial amount of electronic and musical equipment, three golf shirts that were later confirmed to be stolen from a sporting goods store, and the two other laptops stolen from Office Depot.

Fields was later arrested and charged with theft by receiving (one count for each laptop), theft by deception (for receiving payment for the stolen laptop), and theft by receiving (for the golf shirts). After a trial, a Gwinnett County jury found him guilty of all counts except for the theft by receiving the golf shirts. Following the denial of several post-trial motions, Fields filed this appeal.

1. Fields contends that the evidence was insufficient to support the guilty verdict as to the theft by receiving counts because it showed that he was the principal thief of the laptops, not that he received them after they were stolen. We agree.

Under OCGA § 16-8-7 (a),

[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

The Supreme Court of Georgia has described this offense as follows: “The offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief. An essential element of the crime of theft by receiving is that the goods had been stolen by some person other than the accused.” The State correctly points out that it has no burden to prove that the accused did not steal the goods if the principal thief is unknown, but this does not change the fact that if “direct and uncontested evidence identifies the defendant as the original thief, the defendant cannot be convicted of theft by receiving.”

Here, there were video and still photographs, clearly revealing Fields’s unobstructed face and body from several angles, depicting him as the thief stealing the laptops. Fields’s features, which matched those of the man in the video, were described by the interviewing officer who identified Fields in the courtroom. Two witnesses testified that Fields appeared to be the man in the video, and the State itself urged in closing argument that Fields was the man stealing the laptops in the video. Thus, in light of the uncon-troverted direct evidence that Fields was the original thief, the State’s closing argument that Fields was the original thief, and the fact that “no evidence identified any original thief other than” Fields, we conclude that Fields’s conviction on the theft by receiving counts must be reversed.

As to the theft by deception count, the evidence was sufficient to support that guilty verdict because it showed that at the Gwinnett County motel, Fields obtained payment for the stolen laptop after representing it to be marketable and not stolen. We now address Fields’s remaining non-moot enumerations of error.

2. Fields contends that the trial court erred by admitting the State’s evidence despite various alleged discovery violations committed by the State. Even assuming that the State failed to comply with its discovery obligations, however, the record shows that the State disclosed all of its evidence to Fields and provided him with the indictment and witness list during a probation revocation hearing 24 days prior to trial, and he was informed at the revocation hearing that the evidence was the same as it would be at his impending criminal trial. Further, there is no evidence of bad faith on the part of the State. “The trial court... is vested with discretion in formulating remedies for discovery violations, and we will not reverse the trial court’s decision absent an abuse of discretion.” Based on the record before us, and in the absence of any showing of bad faith or prejudice, we discern no abuse of the trial court’s discretion.

3. Fields also contends that the trial court erred by conducting his trial despite the fact that he received inadequate notice of trial under Uniform Superior Court Rule (USCR) 32.1, which requires the trial court to provide a minimum of seven days’ notice before the trial date. The trial court’s “noncompliance with USCR 32.1 is to be assessed under the circumstances of each case,” and here, it is clear from the appellate record that while Fields objected to the lack of full notice, he ultimately explicitly declined the trial court’s offer of a continuance. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further” on appeal. Under these circumstances, we discern no reversible error.

4. Fields also contends that he received ineffective assistance of trial counsel. Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong.

Decided July 1, 2011.

Leslie E. Fields III, pro se.

Daniel J. Porter, District Attorney, Lindsay B. Gardner, Assistant District Attorney, for appellee.

Because Fields proceeded pro se at trial, he cannot raise an ineffective assistance of counsel claim with regard to issues that arose during trial. To the extent that he complains of ineffective assistance of counsel prior to trial, the record shows that he received his requested pro se status prior to trial, he was allowed to file pre-trial motions on his own behalf (which were addressed by the trial court), and he has failed to demonstrate how the prior pre-trial representation prejudiced him. Accordingly, he has failed to meet his burden under Strickland.

5. Finally, Fields contends that the trial court erred by admitting improper character evidence consisting of video and photographs of him stealing the laptops from the Office Depot. “As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” Pretermitting whether Fields adequately preserved this asserted error at trial, the evidence challenged on appeal showed the theft of the very laptops Fields was accused of receiving. “Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant’s character is incidentally placed in issue.” The videotape was relevant to show that the laptops at issue were stolen. Accordingly, we discern no abuse of discretion.

Judgment affirmed in part and reversed in part.

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

       OCGA § 16-8-7 (a).

       OCGA § 16-8-3 (a).

       OCGA § 16-8-7 (a).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       One theft by receiving count was reduced to a misdemeanor, based on the value of the laptop being less than $500.

       (Citation and punctuation omitted; emphasis supplied.) Thomas v. State, 261 Ga. 854, 855 (1) (413 SE2d 196) (1992).

       See Weidendorf v. State, 215 Ga. App. 129, 130 (1) (449 SE2d 675) (1994) (“It is not a requirement of the present law that the State prove the accused did not steal the goods.”); Duke v. State, 153 Ga. App. 204, 205 (264 SE2d 721) (1980).

       (Punctuation omitted.) Phillips v. State, 269 Ga. App. 619, 631 (10) (604 SE2d 520) (2004).

       The evidence was uncontroverted that the theft occurred in Fulton County; Fields was tried in Gwinnett County.

        Phillips, 269 Ga. App. at 631 (10).

       See id.; Ingram v. State, 268 Ga. App. 149, 152 (5) (601 SE2d 736) (2004) (specifically rejecting argument that the theft by taking and theft by receiving offenses are not mutually exclusive if a defendant was convicted of retaining stolen goods); Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367) (1980) (“it is not. . . advised to find that [recent unexplained possession of stolen property] constitutes theft by receiving”). Compare Duke, 153 Ga. App. at 205 (affirming conviction even though State produced only circumstantial evidence from which guilt of either theft by taking or receiving could be inferred).

       See OCGA § 16-8-3 (a) (“A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.”); Drake v. State, 274 Ga. App. 882, 883 (1) (619 SE2d 380) (2005) (selling stolen property constituted offense of theft by deception).

       See OCGA § 17-16-6 (exclusionary remedy available “upon a showing of prejudice and bad faith”); Mullins v. State, 267 Ga. App. 393, 398 (3) (699 SE2d 340) (2004) (same).

         Mullins, 267 Ga. App. at 398 (3).

       See id.

        Currington v. State, 270 Ga. App. 381, 385 (3) (606 SE2d 619) (2004).

       (Punctuation omitted.) Id. at 386 (3).

        White v. State, 255 Ga. App. 228, 229 (1) (564 SE2d 826) (2002).

       See id. (reviewing such decisions for an abuse of discretion); In re Beckstrom, 295 Ga. App. 179, 181 (1) (671 SE2d 215) (2008) (remedy for inadequate notice is to appear and seek a continuance). See generally Dally v. State, 237 Ga. App. 577, 579 (2) (516 SE2d 87) (1999) (if “a case is not convoluted and does not involve a large number of witnesses or intricate defenses, denial of a continuance merely because of shortness of time for preparation for trial does not constitute an abuse of discretion”).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       See id. at 687-688, 694 (III) (A)-(B).

       See id. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       See Lopez v. State, 259 Ga. App. 720, 725 (7) (578 SE2d 304) (2003).

        Sullivan v. State, 242 Ga. App. 839, 840-841 (3) (531 SE2d 367) (2000).

       (Citation and punctuation omitted.) Smith v. State, 302 Ga. App. 128, 131 (1) (a) (690 SE2d 449) (2010).


text:
    A11A0673.
    HARRIS v. THE STATE.
    (713 SE2d 665)
   Doyle, Judge.

A Hall County jury convicted Joseph Rodrius Harris of conspiracy to commit armed robbery and simple assault, but acquitted him of attempted armed robbery. Harris appeals from the denial of his amended motion for new trial, contending that the evidence was insufficient to support his conviction for conspiracy to commit armed robbery. For the following reasons, we affirm.

“On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” So viewed, the evidence shows that in October 2007, Cecilia Allen picked up Harris in her car, along with three other men, two of whom had guns. Soon thereafter, Allen stopped, and the four men exited the vehicle and approached Joshua Johnson on his porch. Johnson did not recognize any of the men. While two men pointed their guns at Johnson, Harris told him to “give it up.” After Johnson responded that he did not have anything, Harris tried to grab and swing at Johnson. Fearing that he would be shot, Johnson opened the door to his house, ran inside, and locked the door. The assailants then left.

After Johnson told his mother what happened, they flagged down a passing police car and reported the events, describing the assailants and what Johnson believed to be their vehicle, a dark Impala. Later that night, the officer drove Johnson to a bus station where the Impala had been pulled over in a traffic stop, and Johnson was able to identify Harris as one of the men who tried to rob him. Johnson also identified Harris from a booking photograph. The other perpetrators were arrested later.

Harris was indicted for attempt to commit armed robbery, conspiracy to commit armed robbery, and simple assault. Harris and two others were tried together, but the fourth assailant, Monquis Ware, pleaded guilty to charges based on the attempted robbery. At trial, Johnson identified Harris as the perpetrator who tried to grab and swing at him after telling him to “give it up.” Ware also testified on behalf of the State and told the jury that he heard Harris tell the victim to “give it up” while Ware and Harris’s co-defendant pointed guns at the victim.

During its deliberation, the jury presented several questions to the Court, asking whether one had “to be holding a weapon in order to be charged for armed robbery,” and seeking clarification — with respect to conspiracy — on the legal definition of “presence, companionship, and conduct before and after commission of the alleged offense,” including whether “the ‘and’ mean[s] and/or or does it have to be both before and after” the commission of the alleged offense. After conferring with counsel, the trial court recharged the jury, clarifying the definitions and explaining the questioned conspiracy law. At the trial’s conclusion, the jury found Harris not guilty of criminal attempt to commit armed robbery, but found him guilty of conspiracy to commit armed robbery and of simple assault. Subsequently, Harris filed a motion for new trial and an amended motion for new trial, both of which the trial court denied after a hearing. This appeal followed.

Harris contends that the evidence failed to support his conviction for conspiracy to commit armed robbery because the jury acquitted him of attempt to commit armed robbery, thereby, according to Harris, rejecting all direct evidence of his involvement in the conspiracy to commit armed robbery. We disagree.

The indictment alleged the following facts to support the offense of attempted armed robbery: that Harris told the victim to “give it up,” and that Harris attempted to strike him. Likewise, with respect to the conspiracy to commit armed robbery, the indictment alleged that Harris told the victim to “give it up.” Because the jury found him not guilty of attempted armed robbery, Harris contends that the jury must have rejected the underlying factual allegation, and having done so, it rendered an inconsistent verdict when it found him guilty of conspiracy to commit armed robbery, which was predicated on the same facts.

However,

[i]n Milam v. State, the Supreme Court of Georgia, adopting the rationale set out by the United States Supreme Court in United States v. Powell, abolished the rule that inconsistent verdicts in irreconcilable conflict in criminal cases warranted reversal. In Powell, the Court found that inconsistent verdicts could be the result of jury mistake, compromise, or lenity, but it is unknown whether the mistake, compromise, or lenity was exercised in favor of the defendant or the prosecution. . . . [AJppellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense,

Nevertheless, Harris relies on an exception to this doctrine applicable when the record presents an “anomalous situation in which we need not speculate whether the jury verdict is the product of lenity or of legal error.”

[W]hen instead of being left to speculate about the unknown motivations of the jury [,] the appellate record makes transparent the jury’s reasoning why it found the defendant not guilty of one of the charges, there is no speculation, and the policy explained in Powell and adopted in Milam . . . does not apply.

Harris argues that the jury’s questions and its verdict of not guilty of attempted armed robbery demonstrate that the jury rejected the evidence that he committed the overt act supporting his conviction on the conspiracy to commit armed robbery count. However, the record fails to support this conclusion other than by speculation. The verdict form shows no more than “guilty” or “not guilty” as to each count of the indictment, and this Court cannot determine if the jury’s verdict reflected inconsistent factual conclusions, lenity, compromise, or legal error. Because the appellate record does not make transparent the jury’s reasoning, the Powell doctrine applies in this case, and Harris’s enumeration is without merit. The record contains direct evidence, from both the victim and an accomplice, that Harris rode in a car with four other men (two of whom openly displayed handguns), approached the victim, told him to “give it up,” and attempted to impede the victim’s flight while the others aimed their weapons at the victim. It was for the jury to interpret this evidence, and construed in favor of the verdict, this evidence was sufficient to demonstrate a conspiracy to commit an armed robbery.

Judgment affirmed.

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

Decided July 1, 2011.

W. McCall Calhoun, Jr., for appellant.

Lee Darragh, District Attorney, Lindsay H. Burton, Assistant District Attorney, for appellee.

       (Punctuation omitted.) Kelley v. State, 279 Ga. App. 187 (630 SE2d 783) (2006).

       255 Ga. 560, 562 (2) (341 SE2d 216) (1986).

       469 U. S. 57, 64-65 (105 SC 471, 83 LE2d 461) (1984).

       (Citations and punctuation omitted; emphasis supplied.) Artis v. State, 299 Ga. App. 287, 292 (5) (682 SE2d 375) (2009). See also Coleman v. State, 286 Ga. 291, 296 (4) (687 SE2d 427) (2009) (“a defendant cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a different count”).

        Turner v. State, 283 Ga. 17, 21 (2) (655 SE2d 589) (2008).

       (Punctuation omitted.) Id. at 20-21 (2). Compare King v. Waters, 278 Ga. 122, 123 (1) (598 SE2d 476) (2004) (Powell policy inapplicable because the conviction on the predicate offense was vacated due to ineffective assistance of counsel).

       See Smith v. State, 304 Ga. App. 708, 711 (3) (699 SE2d 742) (2010).

       Compare Turner, 283 Ga. at 21 (2) (where the verdict form returned by the jury noted whether or not the jury was finding that the defendant was justified in his actions).

       See Rogers v. State, 291 Ga. App. 202, 203 (661 SE2d 615) (2008).

       See Artis, 299 Ga. App. at 293 (5).

       See Pinkins v. State, 243 Ga. App. 737, 738-740 (1) (534 SE2d 192) (2000).


author: Barnes, Presiding Judge.

text:
    A11A0684.
    CHARLOT v. GOLDWIRE.
    (713 SE2d 667)
   Barnes, Presiding Judge.

This case arose after Larousse Chariot, the biological father of B. C., pro se, filed a petition for legitimation and custody or visitation against Meesha Goldwire, the child’s mother. Goldwire answered and counterclaimed for custody, support, and attorney fees. Chariot filed a motion for genetic testing, which Goldwire did not contest, instead agreeing to the DNA testing “to determine [B. C.’s] paternity in lieu of holding a hearing [on paternity].” Both parties appeared at a hearing on the motion, after which, the trial court granted the motion and ordered them to provide DNA samples.

At various points during the proceedings, Chariot was represented by counsel; however, it is unclear from the record when counsel was representing Chariot, and when Chariot was proceeding pro se. A hearing on the petition and counterclaim was apparently held on July 27, 2010, the transcript of which is not included in the record. The trial court granted the petition and awarded Chariot joint physical and legal custody of the child. The mother was designated as B. C.’s primary custodian. The order also provided that Chariot pay the mother $551 per month in child support based on his monthly salary of $3,108 and the mother’s monthly salary of $2,366. Goldwire was awarded attorney fees of $2,500.

It is difficult to ascertain what Chariot contends as error, and virtually impossible to discern his arguments save vaguely asserted claims that he was denied “equal time” to the child, his child support was miscalculated, and that attorney fees were impermissibly awarded. We will address his contentions to the best of our abilities.

1. When issues of custody and visitation are raised as a part of a petition for legitimation, the court’s determinations are “based on the best interests of the child standard.” OCGA § 19-7-22 (f.l). Although Chariot appears to argue that the trial court denied him equal access to the child, at the time of the hearing, B. C. was approximately one year old. The order provided that Chariot would have limited visitation which would increase as the child got older, culminating when the child is four years old to Chariot having 130 parenting days a year and the mother 235 days. There are no transcripts of any hearings and, in the absence of transcripts that would detail what was presented in the hearings, this Court assumes that the evidence adduced therein was sufficient to support the trial court’s findings that the custody and visitation decision was in the best interest of the child. See Fine v. Fine, 281 Ga. 850, 852 (2) (642 SE2d 698) (2007).

2. By statute, Georgia law provides that

[i]t is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child until the child reaches the age of 18 or becomes emancipated, except to the extent that the duty of one parent is otherwise or further defined by court order.

OCGA § 19-7-24. In determining the child support due from the noncustodial parent to the custodial parent, “[t]he guidelines for computing the amount of child support are found in OCGA § 19-6-15 and must be considered by any court setting child support.” Roberts v. Tharp, 286 Ga. 579, 580 (1) (690 SE2d 404) (2010). These guidelines “shall apply as a rebuttable presumption in all legal proceedings involving the child support responsibility of a parent.” (Emphasis supplied.) OCGA § 19-6-15 (c) (1). Although this presumptive amount of child support is rebuttable, “deviations subtracted from or increased to the presumptive amount of child support [must be] . . . supported by the required findings of fact and application of the best interest of the child standard . . . [and] shall be entered on the Child Support Schedule E — Deviations.” OCGA § 19-6-15 (b) (8). Additionally, OCGA § 19-6-15 (d) provides:

In the event of a hearing or trial on the issue of child support, the guidelines enumerated in [OCGA § 19-6-15] are intended by the General Assembly to be guidelines only and any court so applying these guidelines shall not abrogate its responsibility in making the final determination of child support based on the evidence presented to it at the time of the hearing or trial.

(Emphasis supplied.) See Spurlock v. Dept. of Human Resources, 286 Ga. 512, 516 (3) (690 SE2d 378) (2010).

The record contains the parties’ financial affidavits, and the trial court’s child support worksheet, along with Schedule D attached to the worksheet, which show that the father’s basic child support obligation was calculated to be $537.71 based on his pro rata share of the parents’ combined income. That amount was adjusted to add a pro rata share of the mother’s health insurance expenses of $40 per month, which increased the child support amount by $22.71. There was no Schedule E in the record reflecting any deviations, and because the hearing transcript was not included in the record, to the extent Chariot argues that the trial court should have considered facts presented during the hearing in calculating his child support payment, this Court assumes that the evidence adduced therein was sufficient to support the trial court’s findings. Blue v. Blue, 279 Ga. 550 (1) (615 SE2d 540) (2005); see OCGA § 19-6-15 (d).

3. Chariot also appears to maintain that the trial court erred in awarding the mother attorney fees. In her counterclaim, the mother requested attorney fees but did not indicate under what statute she was seeking them. The evidence in the record shows that the mother’s trial counsel submitted an itemized bill showing approximately $5,800 in legal fees. The trial court awarded the mother less than half of that sum — $2,500.

A court may order attorney fees in cases involving paternity under OCGA § 19-7-50. The statute provides, “The court may order reasonable fees of counsel, experts, and the child’s guardian ad litem and other costs of the action and pretrial proceedings, including blood and other tests, to be paid by the parties in proportions and at times determined by the court.” “Generally an award of attorney fees is not available unless supported by statute or contract.” Padilla v. Padilla, 282 Ga. 273, 274 (1) (646 SE2d 672) (2007).

Here, there is no transcript of the proceedings below, and the trial court failed to identify in its order assessing attorney fees the basis on which the fees were granted. Where the record does not contain the basis for the award in either the order awarding attorney fees, or a transcript of the attorney fees hearing, we are unable to properly review the claim, and the attorney fees award cannot be sustained. Sinkwich v. Conner, 288 Ga. App. 320 (654 SE2d 182) (2007); see Cotting v. Cotting, 261 Ga. App. 370, 372 (2) (582 SE2d 527) (2003) (appellate court “in the dark” regarding trial court’s intent and basis for ruling on attorney fees, the attorney fees award could not be properly reviewed and the case was remanded for clarification of the court’s award).

Because the order in this case fails to specify any basis for the attorney fees award, the award is vacated, and the case is remanded for the trial court to specify such basis for attorney fees. See Webb v. Watkins, 283 Ga. App. 385, 386 (2) (641 SE2d 611) (2007).

Judgment affirmed in part and vacated in part, and case remanded.

Adams, J., concurs. Blackwell, J., concurs in Divisions 1 and 2, and concurs in judgment only in Division 3.

Decided July 1, 2011.

Larousse Chariot, pro se.

Meesha Goldwire, pro se.