author: Adams, Judge.

text:
    A10A0927.
    FORSTER v. STATE FARM FIRE & CASUALTY COMPANY.
    (704 SE2d 204)
   Adams, Judge.

Robert A. Forster, M.D., appeals the trial court’s grant of summary judgment to State Farm Fire & Casualty Company in a declaratory judgment action filed by the insurer to determine its rights and obligations in relation to a lawsuit filed against Forster by John and Andrea Goldberg. The Goldbergs’ suit seeks damages in connection with Forster’s renovation and sale of a house.

“[W]e review the trial court’s grant of summary judgment to determine whether the evidence demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Punctuation and footnote omitted.) Tookes v. Murray, 297 Ga. App. 765 (678 SE2d 209) (2009). Moreover “[ojn appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.” (Citations omitted.) McCaskill v. Carillo, 263 Ga. App. 890 (589 SE2d 582) (2003).

So viewed, the record shows that on or about December 15, 2005, Forster purchased the house at issue, which he planned to renovate and then to either rent, sell or occupy. At the time of purchase, he consulted his State Farm agent about the insurance he would need in connection with these plans. At the agent’s recommendation, he purchased a Rental Dwelling Policy (“RDP”), which would be linked to Forster’s pre-existing Personal Liability Umbrella Policy (“PLUP”) also held through State Farm. A short time after Forster purchased the house, the Goldbergs expressed an interest in buying it, and on February 19, 2006, the parties entered into a “New Construction Purchase and Sale Agreement” under which Forster agreed to renovate the house and the Goldbergs agreed to buy it.

The Agreement set a purchase price of $706,114, but the Goldbergs agreed to pay an additional $38,000 for numerous upgrades and repairs throughout the house. In turn, Forster agreed that the property would be completed in accordance with the Agreement; he also provided an express one-year warranty “against all defects in labor and materials (normal wear and tear excepted).” Forster did no work on the house himself but instead hired Mitchell Galloway to perform the renovations. The Goldbergs assert that as the closing neared, they prepared detailed punch lists of items that awaited repairs. They contend that when the closing took place April 21, 2006, a number of these items were still outstanding, and they understood that the repairs on the punch lists would be timely completed afterward. But Forster asserts that the Goldbergs voiced no complaints about the renovations at the time of the closing.

Subsequently, the Goldbergs filed suit against Forster, Galloway, and Residential Environments, LLC, which corporation the Gold-bergs contend, but Forster denies, was hired to work on the house. The Goldbergs alleged that many of the repairs and renovations were never completed or were completed improperly, and they were required to expend additional monies to complete the house. They asserted claims against Forster for breach of contract and breach of warranty. The complaint, as amended, also asserted claims of third-party beneficiary and negligent construction against Galloway and Residential. It sought attorney fees under OCGA § 13-6-11 against all the defendants. State Farm filed this declaratory judgment action to determine whether either of Forster’s two State Farm policies provided coverage for the Goldbergs’ claims.

An insured claiming an insurance benefit “has the burden of proving that a claim falls within the coverage of the policy.” (Citation omitted.) Ga. Farm &c. Ins. Co. v. Hall County, 262 Ga. App. 810, 812 (1) (586 SE2d 715) (2003). See also Allstate Ins. Co. v. Grayes, 216 Ga. App. 419, 420 (1) (454 SE2d 616) (1995). Accordingly,

[a]n insurer’s duty to defend turns on the language of the insurance contract and the allegations of the complaint asserted against the insured. ... If the facts as alleged in the complaint even arguably bring the occurrence within the policy’s coverage, the insurer has a duty to defend the action. However, . . . where the complaint. . . does not assert any claims upon which there would be insurance coverage, the insurer is justified in refusing to defend the insured’s lawsuit.

(Citations omitted.) City of Atlanta v. St. Paul Fire &c. Ins. Co., 231 Ga. App. 206, 207 (498 SE2d 782) (1998).

In this case, the RDfi the primary policy covering the house, states in pertinent part:

SECTION II — LIABILITY COVERAGES
COVERAGE L — BUSINESS LIABILITY
If a claim is made or a suit is brought against an insured for damages because of bodily injury, personal injury, or property damage to which this coverage applies, caused by an occurrence, and which arises from the ownership, maintenance or use of the insured premises, we will:
1. pay up to our limit of liability for the damages for which the insured is legally liable; and
2. provide a defense at our expense by counsel of our choice. . . .

(Emphasis supplied.) The RDP defines “occurrence,” when used in this section of the policy, to mean “an accident, including exposure to conditions, which results in” bodily injury, property damage or personal injury. (Emphasis supplied.)

Forster’s other policy, the PLUfi provides that if Forster is “legally obligated to pay damages for a loss, [State Farm] will pay [his] net loss. . . . (Emphasis supplied.) “Loss” is defined under the PLUP to mean “an accident, that results in personal injury or property damage during the policy period. This includes injurious exposure to conditions.” (Emphasis supplied.) Thus, coverage under each of these policies is triggered by an “accident” which results in property damage or personal injury, but the term “accident” is not defined under either policy.

Georgia law, however, provides that the term “ ‘[a]ccident’ means an event which takes place without one’s foresight or expectation or design.” OCGA § 1-3-3 (2). See also City of Atlanta, 231 Ga. App. at 208 (1). However, when used in an insurance policy, “accident” has a further meaning limited by the occurrence or event as to causation of injury or damage; “an accident is an unexpected happening rather than one occurring through intention or design.” (Citations and punctuation omitted.) Custom Planning &c. v. American Nat. Fire Ins. Co., 270 Ga. App. 8, 9-10 (1) (606 SE2d 39) (2004). In other words, where an act is intentional, it does not constitute an “accident” under the terms of Forster’s insurance policies.

Applying this definition, this Court has held, for example, that an insurance policy with similar language to the policies in this case provide no coverage for breach of contract, fraud, or breach of warranty from the intentional failure to disclose information. Custom Planning, 270 Ga. App. at 10 (1). Moreover, this Court has found that construction defects that constitute a breach of contract are not covered by such a policy. See Hathaway Dev. Co. v. American Empire &c. Ins. Co., 301 Ga. App. 65, 69 (2) (686 SE2d 855) (2009). No coverage exists, therefore, for damage to the construction project itself, and State Farm has no duty to provide coverage for the Goldbergs’ claims for breach of contract or breach of warranty to the extent that they seek such damages. See Custom Planning, 270 Ga. App. at 10 (1) (where the faulty workmanship causes damage only to the work itself, no “occurrence” existed under the terms of policy with similar language).

But this Court has held that “negligently performed faulty workmanship that damages other property may constitute an ‘occurrence’ under [the] policy,” which would be covered. Hathaway Dev. Co., 301 Ga. App. at 69 (2) citing SawHorse, Inc. v. Southern Guaranty Ins. Co. of Ga., 269 Ga. App. 493, 498-499 (2) (b) (604 SE2d 541) (2004). See also Custom Planning, 270 Ga. App. at 10 (1). Accordingly, State Farm would have the obligation to provide coverage to the extent that any defects in the contractual work incidentally damaged other property not included in the construction project. See SawHorse, 269 Ga. App. at 488-499 (2) (b) (similar “occurrence” language in policy did not bar coverage for damage to first floor of house caused by faulty workmanship under construction agreement for second-floor addition).

Here, the Goldbergs’ complaint alleges claims against Forster for breach of contract, breach of warranty and attorney fees, and it seeks damages for a laundry list of “deficiencies and defects” in the construction of the house. It is unclear from the record, however, which of these claimed damages relate strictly to the work contemplated by the parties’ Agreement and which might relate to other property. Thus, we cannot determine as a matter of law that State Farm has no potential responsibility to provide coverage on at least some of the Goldbergs’ claims. Accordingly, we affirm the trial court’s grant of summary judgment to State Farm with regard to any construction defects that constitute breach of contract or breach of warranty, but we reverse the grant of summary judgment as it relates to any claim for damages to other property.

Decided November 24, 2010.

Gray, King, Chamberlin & Martineau, William E. Gray II, Sarah G. Adle, for appellant.

Swift, Currie, McGhee & Hiers, Moren R. Cave, for appellee.

Judgment affirmed in part and reversed in part.

Smith, E J., and Mikell, J., concur.

       At the hearing on the motion for summary judgment, the Goldbergs’ lawyer argued that their claims contained a “negligent construction component” and put Forster on notice that “the Goldbergs [would be] seeking damages to their house independent of. . . their contractual claim” in the parties’ planned arbitration proceeding. We expressly do not address any potential claims that may or may not be asserted in the parties’ arbitration proceeding, as those claims are not before us.


source: Caselaw Access Project

author: BARNES, Presiding Judge. BLACKWELL, Judge,

license: Public Domain

text:
    A10A1106.
    BORING et al. v. STATE BANK AND TRUST COMPANY.
    (704 SE2d 207)
   BARNES, Presiding Judge.

Richard M. Boring and Mechanical Equipment and Supply, Inc. (hereinafter collectively “Boring”), appeal from the trial court’s order confirming the foreclosure sale of certain properties that State Bank and Trust Company held as security for commercial loans Boring guaranteed. Upon our review, we affirm.

In confirming a nonjudicial foreclosure sale under OCGA § 44-14-161, the trial court “shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” OCGA § 44-14-161 (b). In such proceedings, the trial court sits as the trier of fact, and its findings and conclusions have the effect of a jury verdict. See Wilson v. Prudential Indus. Properties, 276 Ga. App. 180 (1) (622 SE2d 890) (2005), citing McCain v. Galloway, 267 Ga. App. 505 (600 SE2d 449) (2004). Thus, we will not disturb the trial court’s decision if there is any evidence to support it. Oates v. Sea Island Bank, 172 Ga. App. 178 (1) (322 SE2d 291) (1984). Additionally, “we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.” (Citation omitted.) McCain v. Galloway, supra.

So viewed, the evidence shows that in March 2005, SouthBank gave Sierra Vista of Habersham, LLC, a commercial loan in the amount of $1,420,000 to purchase certain real property in Habersham County, and the company gave SouthBank a deed to secure debt on the property. Contemporaneously with the execution of the promissory note, Richard Boring, Sierra Vista’s registered agent and managing member, executed a guaranty in favor of SouthBank, personally guaranteeing the debt. In June 2005, SouthBank changed its name to Security Bank of North Metro. The note and Boring’s guaranty were renewed several times during 2006 and 2007. In September 2007, Richard Boring and Mechanical Equipment and Supply, Inc., each executed a guaranty of the Sierra Vista loan renewal.

In July 2009, Security Bank was closed and the FDIC was appointed as Receiver for the bank, and became the successor-in-interest to the Note, security deed, guaranty, and renewals. In September 2009, the FDIC assigned its interest in the Sierra Vista note, Boring’s guaranty, the security deed, and the renewals to State Bank. Sierra Vista defaulted on the loan, and in August 2009, State Bank accelerated the loan, declaring the principal balance due immediately.

State Bank foreclosed on the property, and in October 2009, purchased the approximately ten acres of land secured by the note for $600,000 as the highest bidder for cash. State Bank, thereafter, filed a petition to have the sale confirmed and approved for the purposes of pursuing a deficiency judgment against Boring. Boring filed its answer and a motion to dismiss, challenging the standing of State Bank to seek confirmation.

The parties stipulated as to the legality of the notice and the foreclosure sale itself. At the confirmation hearing, State Bank presented evidence on the true market value of the property through the testimony of its witness George Galphin, a certified general appraiser. Galphin testified that he had arrived at his valuation of the property through the use of the “sales comparison approach,” comparing the property to five similar, recently sold properties. Galphin also testified that, of the five comparable properties, only one of them had been a “distressed sale,” which required him to make adjustments to the property’s sale value in order to use it as a comparison to the property at issue.

The trial court admitted Galphin’s testimony and appraisal into evidence and found that State Bank had made out its prima facie case that the foreclosure sale price represented the true market value of the property, entering an order confirming and approving the sale pursuant to OCGA § 44-14-161.

1. Boring first contends that the trial court erred in holding that State Bank had the requisite “legal standing” to bring its confirmation action against the guarantors, and in holding that the issue of standing was irrelevant to a confirmation proceeding under OCGA § 44-14-161. We do not agree.

OCGA § 44-14-161 (a) provides:

When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, ... no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.

(Emphasis supplied.) At the confirmation hearing, Boring challenged State Bank’s standing to bring the confirmation action because State Bank did not show that it had been properly assigned the guarantees. The trial court found that such standing issues were “outside the scope of a confirmation hearing,” citing this court’s opinion in Sparti v. Joslin, 230 Ga. App. 346 (496 SE2d 490) (1998). We agree.

Regarding the narrow applicability of the confirmation statute, our Supreme Court has explained:

The only purpose of the confirmation statute is to subject the creditor’s potential deficiency claim to the condition that the foreclosure sale under power be given judicial approval. The confirmation proceeding does not result in a personal judgment and it does not adjudicate the title of the property sold. Except as to the confirmed amount of the sale, it does not establish the liability of any party with regards to the indebtedness.

(Citation and punctuation omitted; emphasis supplied.) Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 297 (1) (430 SE2d 732) (1993).

In McCain v. Galloway, supra, 267 Ga. App. at 505, McCain argued that Galloway failed to prove that Bartow County Bank had assigned the note and security deed to him before he foreclosed on the property, and thus Galloway lacked standing to bring the confirmation action. Citing Sparti, this court reaffirmed that the confirmation proceeding is a limited statutory proceeding, in which an assignment issue was not relevant to the confirmation proceeding.

Similarly here, “[t]he issue [of] whether [State Bank] was a real party in interest is not relevant to this confirmation proceeding, which was commenced in accordance with OCGA § 44-14-161 (a) by the person instituting the foreclosure proceedings.” Sparti v. Joslin, supra, 230 Ga. App. at 346 (1).

Accordingly, the trial court did not err in finding that the issue of standing was not relevant to the confirmation proceeding.

2. Although Boring also challenges the valuation evidence, we find no error. Boring contends that Galphin, the appraiser, did not testify with specificity regarding the accuracy of his comparables, and did not verify the accuracy of information he utilized in valuing the property, but that he relied on inadmissible conclusions and opinions of unidentified third parties from his file.

While an “expert witness must not be permitted to serve merely as a conduit for hearsay,” Whatley v. Terry, 284 Ga. 555, 565 (V) (A) (668 SE2d 651) (2008), an expert witness’s assessment of market value is placed in a special category as it is “exclusively a matter of opinion even though expressed as a fact.” Unified Govt. of Athens-Clarke County v. Watson, 255 Ga. App. 1, 4 (2) (564 SE2d 453) (2002). Such an opinion “may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion.” Id.

Here, the record reflects that Galphin relied on the factual data collected by his staff for his valuation, not on their opinions as to the value of the properties in question. There being no evidence that his valuation was based on sheer speculation, we will not second-guess his methodology. Fayette Promenade v. Branch Banking &c. Co., 258 Ga. App. 323, 327 (574 SE2d 319) (2002).

“As a general rule the price brought at a public sale, after proper and lawful advertisement, is prima facie the market value of the property sold, absent anything to indicate that there was chilling of the bidding, fraud, or the like adversely affecting the sale.” Thompson v. Maslia, 127 Ga. App. 758, 764 (195 SE2d 238) [(1972)], and cit.

Wachovia Mtg. Co. v. Moore, 138 Ga. App. 101 (225 SE2d 460) (1976), overruled on other grounds, Fed. Deposit Ins. Corp. v. Ivey-Matherly Constr. Co., 144 Ga. App. 313, 315 (1) (241 SE2d 264) (1977). Based on the evidence more fully set forth above, sufficient evidence supported the trial court’s confirmation of the foreclosure sale. Marett Properties v. Centerbank Mtg. Co., 204 Ga. App. 265, 267 (419 SE2d 113) (1992).

Boring argues that due to “the current great real estate recession” this court should establish an evidentiary rule to the effect that an expert witness for the foreclosing party must introduce or rely on admissible evidence to show that comparable properties used in the assessment of the value of the foreclosure property were not “distressed sales.” He does not suggest, however, under what authority such a rule might be based, except for some generalized notion of the trial judge as gatekeeper of the admissibility of evidence, such as that related to expert witnesses in Condra v. Atlanta Orthopaedic Group, 285 Ga. 667, 671 (681 SE2d 152) (2009).

Moreover, OCGA § 44-14-161 (b) simply states that “[t]he court shall require evidence to show the true market value of the property sold [in foreclosure] and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” The statute does not preclude any specific method of property appraisal.

Judgment affirmed.

Smith, P. J., and Blackwell, J., concur fully and specially.

BLACKWELL, Judge,

concurring fully and specially.

I concur fully in the majority opinion, but I write separately to explain why we do not scrutinize more carefully the methodology that the appraisal expert in this case used. In the majority opinion, we say that, because there is no evidence that the expert testimony about valuation was speculative, “we will not second-guess [the expert’s] methodology.” And that is appropriate in this case, I think, because no one filed a motion to exclude the testimony of this expert, no one objected at the hearing to his testimony on valuation, and no one moved to strike his testimony on valuation. Instead, after the expert testified about the value of the property without objection, Boring simply argued that the expert testimony was insufficient to establish value because the methodology of the expert was, according to Boring, flawed. Accordingly, only the sufficiency of the evidence adduced at the confirmation hearing — not the admissibility of that evidence — was preserved for our review on appeal. In these circumstances, and because the confirmation statute specifies no particular means for appraising the true market value of the property at issue, I think that we correctly refrain from second-guessing the methodology used by the appraisal expert.

Decided November 24, 2010.

George E. Butler II, for appellants.

But when objection is timely and properly made to the admissibility of expert testimony in a civil action under OCGA § 24-9-67.1, second-guessing the methodology of the expert is precisely what the trial court is supposed to do. Enacted as part of the Tort Reform Act of 2005, OCGA § 24-9-67.1 permits a trial court to admit expert testimony in a civil case only when the testimony “will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue” and only to the extent that “[t]he testimony is the product of reliable principles and methods” and “[t]he witness has applied the principles and methods reliably to the facts of the case.” OCGA § 24-9-67.1 (b). When objection is timely and properly made to the testimony of an expert witness, the trial court must function as a gatekeeper, see Condra v. Atlanta Orthopaedic Group, 285 Ga. 667, 671 (681 SE2d 152) (2009), and the trial court must scrutinize the methodology used by the expert and determine whether it is scientifically valid and, therefore, reliable before admitting the expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579, 592-593 (113 SC 2786, 125 LE2d 469) (1993).

Nothing in our decision today should be understood as a retreat from our obligation to ensure that the trial courts fulfill their role as a gatekeeper. And nothing in our decision today should be construed as a holding that the ordinary standards for the admissibility of expert testimony in civil cases do not apply to appraisal experts or in confirmation proceedings. Because the admissibility of the expert testimony in this case was not preserved for our review, we are not required to, and we do not, address such things.

I am authorized to state that Presiding Judge Smith joins in this opinion.

Quirk & Quirk, Kathryn E. Baird, Brendan H. Parnell, Richard J. Dreger, Kenneth P. Robin, for appellee.

       Boring did object once on hearsay grounds when the expert was explaining his methodology and relating discussions that he had with certain public officials, and the trial court overruled the objection. This objection, however, did not pertain to the testimony about valuation — which the expert already had given without objection — and it is not, therefore, material to our assessment of whether the evidence of valuation was sufficient to sustain the confirmation of the sale.

       We look to Daubert and its progeny in construing OCGA § 24-9-67.1. See OCGA § 24-9-67.1 (f); Mason v. Home Depot U.S.A., 283 Ga. 271, 279 (5) (658 SE2d 603) (2008).


author: Doyle, Judge.

text:
    A10A1183.
    BROWN v. THE STATE.
    (704 SE2d 227)
   Doyle, Judge.

After a jury trial, Samuel Brown was convicted of trafficking in cocaine and possession of tools (electronic scales) for the commission of a crime. On appeal, Brown challenges the sufficiency of the evidence, contending that other individuals had equal access to the premises. Brown also argues that the trial court erred by (1) admitting impermissible character evidence; (2) not recusing from Brown’s trial or new trial motion; (3) not excusing for cause a juror employed by the sheriffs department; (4) admitting evidence of contraband seized from Brown’s home; and (5) denying Brown’s motion for new trial on the basis that Brown received ineffective assistance of counsel related to each of the above-listed errors. For the reasons that follow, we affirm; with regard to Brown’s allegation that the trial court failed to conduct a hearing pursuant to Uniform Superior Court Rule (“USCR”) 31.3, we remand to the trial court with direction as stated in Division 2 (b).

Viewing the evidence in the light most favorable to the verdict, Probation Officer Holli Braden and other officers conducted a field visit of Brown’s residence on January 11, 2008. Brown was the only individual at the home, and while he was talking to Braden, Brown told her he needed to use the restroom. Braden became suspicious, and she went to search the restroom while other officers searched the home. She discovered in the toilet tank an object she could not identify immediately, which another officer present identified as scales normally used to measure narcotics. That other officer, Investigator A1 Kelly, who was deceased by the time of trial, uncovered large quantities of crack cocaine covered in unused toilet tissue in the trash can of the restroom, while Braden and a third officer, who photographed the evidence, witnessed the discovery. Also discovered was a closed circuit surveillance system, which monitored all of the home’s approaches, and $3,542 in currency on Brown’s person.

Brown testified at trial in his own defense, and he admitted that he resided at the house at which the cocaine and scales were found, but claimed ignorance regarding the contraband. Although Brown testified that numerous individuals had access to the same location, he did not testify that any of those individuals may have placed or did place the drugs there. Brown also provided explanations for having so much cash at the time of the search and for the necessity of having a surveillance system of the exterior of his home. Although officers discovered a child’s clothing in storage in the house, they did not discover evidence of any other person residing at the home, which was owned by Brown’s grandmother (who did not reside there) and was where Brown testified that he had resided since 2003.

1. (a) Brown challenges the sufficiency of the evidence, arguing that because he did not own the home in which the narcotics and electronic scales were discovered, and because other family members had equal access to the location, the evidence presented at trial was insufficient to show that he possessed the items. We disagree.

“A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” “A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity.” “Possession can be proven by circumstantial as well as direct evidence. All of the competent evidence adduced at trial, which was admissible against [Brown], may be considered to show his constructive . . . possession.”

A conviction on circumstantial evidence is supported only if the proved facts exclude every reasonable hypothesis save that of the defendant’s guilt. Whether the circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of defendant’s guilt is a question for the jury unless the verdict is insupportable as a matter of law.

In this case, the jury was presented with sufficient evidence to determine beyond a reasonable doubt that Brown was guilty of possessing the narcotics with the intent to distribute them and that he possessed the scale in furtherance of that crime based on his residing at the house in question for the last five years, the fact that the items were well hidden within the premises, the lack of evidence at the home of any other persons residing therein, Brown’s possession of a substantial amount of cash on his person at the time of the search, and his use of the closed circuit surveillance system to monitor his home.

“The equal access defense is based on the rule that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” While Brown testified that other individuals visited his home occasionally and that an overnight visitor had been with him until the day of the search, the State presented more evidence “than mere presence and equal access linking [Brown] to the contraband,” and the verdict is, therefore, not insupportable as a matter of law.

(b) Brown contends that the trial court abused its discretion when it failed to grant him a new trial as to his claims of ineffective assistance of counsel for failure to present a defense of equal access.

To succeed in this claim, [Brown] must demonstrate that trial counsel’s performance was deficient and that the deficiency prejudiced his defense. The necessary showing requires [Brown] to overcome the strong presumption that counsel’s conduct fell within the broad range of reasonable professional performance. As we have found, tactical decisions, even if they misfire, do not generally equate with ineffectiveness.

Brown’s argument fails. The record clearly indicates that trial counsel presented testimony in an effort to support a defense of equal access and moved for a directed verdict of acquittal on that basis.

2. Next, Brown contends that the trial court erred by admitting (a) evidence that Brown was on probation, and (b) Brown’s prior criminal record, which Brown contends was impermissible character evidence.

(a) (i) “[A]ll circumstances with an accused’s arrest are admissible if they are shown to be relevant. This is so even if the evidence incidentally puts the accused’s character in issue.” “A trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered will not be disturbed on appeal unless that determination is clearly erroneous.”

We discern no error in the admission of evidence of Brown’s status as a probationer because the probation itself was part of the res gestae of his arrest, which was effected after a search conducted under a Fourth Amendment waiver he gave as a term of his probation.

(ii) Brown also contends that his trial counsel was ineffective for failing to object to admission of the evidence that he was on probation at the time of the arrest. Because the evidence was admissible as part of the res gestae of Brown’s arrest, any motion to exclude the evidence or object to its admission would have been meritless, and “[t]rial counsel’s failure to pursue a futile objection does not constitute ineffective assistance. ” Moreover, trial counsel ’ s decision to elicit details of the crime for which Brown was on probation (aggravated assault) rather than allowing the jury to speculate about the nature of the prior crime, i.e., that Brown was on probation for another drug offense, was a tactical decision and a valid exercise of trial counsel’s professional judgment.

(b) Brown also argues that the trial court erred by admitting evidence of his 1994 conviction on four counts of selling cocaine because the crime was committed more than ten years prior to the alleged acts without first holding a hearing, which was required pursuant to USCR 31.3.

The purpose of the notice requirement contained in USCR 31.3 is to provide a criminal defendant adequate notice of the State’s intent to use similar transactions to enable the defendant to resolve questions regarding admissibility of such evidence before trial. . . . Under USCR 31.3 the prosecution must give a defendant notice of its intent to present evidence of similar transactions or occurrences and seek the prior approval of the trial judge before presenting such evidence.

As an initial matter, Brown’s trial counsel did not object to admission of the evidence of Brown’s 1994 convictions when the State moved to admit them at trial. Nevertheless,

[t]he burden of conducting the requisite hearing before similar transaction evidence can be admitted at trial is placed squarely with the State and the trial court; defendant bears no burden to initiate this procedure. Accordingly, [because Brown raised this ground] before the trial court at the hearing on the motion for new trial and pursued [it] on appeal via an enumeration of error supported by argument and citation of authority, [Brown’s] failure to object to the admission of similar transaction evidence on the basis that a Rule 31.3 (B) hearing was not conducted does not constitute a waiver of the procedure dictated by Rule 31.3 (B) and does not preclude our consideration of this issue on appeal.

Here, the record establishes that the State provided notice of intent to present evidence of similar acts pursuant to USCR 31.3 (A). There is no evidence in the record, however, that a Williams hearing was conducted by the trial court outside of the prosecutor’s comments at the hearing on the motion for new trial that a Williams hearing on the issue was conducted the week before trial at Brown’s probation revocation hearing. Accordingly, pursuant to this Court’s prior decisions, we remand this issue to the trial court “to conduct a post-trial USCR 31.3 (B) hearing” or determine whether such hearing was actually held in Brown’s probation revocation hearing. In the event that no hearing was held, then the trial court is directed to conduct a post-trial hearing and should follow the procedure set forth in White:

If the trial court determines that the State’s evidence of similar transactions does not demonstrate substantial relevancy for a proper purpose under the standards of Williams v. Statei ] or if such relevancy is substantially outweighed by the danger of unfair prejudice, then a new trial would be warranted. Conversely, if the trial court determines that the State’s evidence of similar transactions was admissible pursuant to USCR 31.3 (B) and Williams v. State[ ] then a new trial is unnecessary.

In the event that the Rule 31.3 (B) hearing was conducted during Brown’s probation revocation proceeding, then the trial court should make the transcript of the hearing part of the record of this case and address its effect on Brown’s allegations of ineffective assistance of counsel on this issue contained in the motion for new trial. Accordingly, we remand this limited portion of the appeal to the trial court.

(c) To the extent that Brown raises arguments concerning the trial court’s limiting instruction regarding the prior convictions, we decline to review these arguments because an appealing party may not use its brief to expand its enumeration of errors by arguing issues not stated in the enumeration of the errors.

3. Brown also contends that the trial judge erred by not sua sponte recusing from presiding over the trial and motion for new trial hearing and by failing to sua sponte disqualify from the jury a sheriffs department employee.

(a) (i) Brown did not file a motion to recuse the trial judge (who also presided over the motion for new trial) but argues on appeal that the judge should have sua sponte recused himself because he was the district attorney when Brown was convicted in 1994 of drug charges and because the judge had recently presided over Brown’s probation revocation hearing.

“There is no duty for a trial judge to sua sponte recuse himself absent a violation of a specific standard of OCGA § 15-1-8 or Canon 3 (E) (1) (a) through (c) of the Code of Judicial Conduct, which is not waived by a party after disclosure.” Brown argues that under the Code of Judicial Conduct, the trial judge’s impartiality fell into the category of that which “might reasonably be questioned” based on his prior experience with Brown.

As we explained in Hargrove v. State,

[t]he phrase “impartiality might reasonably be questioned” has been interpreted to mean the existence of a reasonable perception of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference; it is not based upon the perception of either interested parties or their lawyer-advocates. A trial judge’s failure to sua sponte recuse himself will warrant reversal only where the conduct or remark of the judge constitutes an egregious violation of a specific ethical standard, and it must support the inescapable conclusion that a reasonable person would consider the judge to harbor a bias that affects his ability to be impartial.

With regard to the issue of the trial judge’s involvement in Brown’s probation revocation hearing and prior convictions (in the judge’s former capacity as a prosecutor), this Court previously has determined that presiding over such a hearing does not constitute reason, standing alone, for sua sponte recusal by the trial judge. Brown contends that the trial judge should have recused himself based on the cumulative effect of his prior experience with Brown. We find this contention without merit because Brown has not presented any citations to the record showing specific conduct or remarks by the trial judge that would support his claim that the judge harbored a bias toward him to the extent that sua sponte recusal was necessary.

(ii) Brown contends that trial counsel was ineffective for failing to seek recusal of the trial judge. Brown, however, has failed to identify any evidence of record that the judge harbored any bias that affected his ability to impartially preside over the trial or the motion for new trial, and “a judge is not automatically disqualified from sitting or acting in criminal cases merely on the ground that the judge, in prior employment, has previously prosecuted the defendant in unrelated criminal proceedings.”

(b) Brown contends that the judge failed to rule on his motion to recuse, which was contained in his motion for new trial.

“Under our law, counsel must obtain rulings on his motions or objections, and the failure to do so ordinarily results in a waiver.” In any event, pretermitting whether Brown waived his right to challenge this alleged error, Brown failed to point to any evidence of record that the judge harbored any bias that affected his ability to impartially preside over the motion for new trial.

(c) Brown also contends that the trial court should have sua sponte dismissed a juror because of the juror’s alleged employment in the Ben Hill County Sheriffs Department. The majority of the voir dire does not appear in the appellate record, and Brown has failed to point to any record evidence to support his claim, other than identifying as a Department employee an individual named Cynthia Roberts, who was the jury foreperson. Accordingly, this claim is without merit, and for the same reason, Brown’s contention that trial counsel was ineffective for failing to strike from the jury Cynthia Roberts fails as a basis for ineffective assistance of counsel.

4. Brown also argues that the trial court erred when it admitted items seized from his home. We disagree.

Pretermitting whether Brown waived this claim by failing to file a motion to suppress or object to admission of the evidence during trial, we address the validity of the search because Brown has challenged his trial counsel’s effectiveness for failing to file a motion to suppress. The State submitted to the trial court Brown’s conditions of probation for his 2006 aggravated assault conviction, signed by Brown, which stated that Brown “[s]hall, at the request of Probation Supervisor, consent to a search, without necessity or benefit or [sic] a search warrant, of person, residence, or motor vehicle under his control by Probation Supervisor or any Law Enforcement Officer for detection of alcohol or controlled substances.”

When an individual has executed a Fourth Amendment waiver as part of a probationary sentence, law enforcement officers may

search pursuant to a special condition of probation at any time, day or night, and with or without a warrant, provided there exists a reasonable or good-faith suspicion for search, that is, the police must not merely be acting in bad faith or in an arbitrary and capricious manner (such as searching to harass the probationer).

Although evidence of the controlled buy leading up to the probation search of Brown’s residence was excluded from trial based on the death of the officer conducting the buy and disappearance of the criminal informant, the information was sufficient to show that the probation supervisor’s search of Brown’s residence was not arbitrary, capricious, or conducted in bad faith.

Decided November 24, 2010.

Kimberly L. Copeland, for appellant.

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.

Brown points to Jones v. State, to support his argument that the search was unconstitutional. Jones is inapposite. In that case, “the State failed to introduce any evidence showing that Jones’s Fourth Amendment right against warrantless searches of his residence was limited by court order or anything else in Georgia law at the time his apartment was searched.” Accordingly, Brown’s enumeration is without merit.

Because we have concluded that this was a valid search pursuant to a Fourth Amendment waiver, it follows that trial counsel was not ineffective for failing to move to suppress the items seized from Brown’s home. “The mere failure to file a suppression motion does not constitute per se ineffective assistance of counsel. Rather, the defendant must make a strong showing that, had his lawyer filed a motion to suppress, the trial court would have granted it.” Brown has therefore failed to establish ineffective assistance of counsel on this basis and the trial court’s denial of his motion for new trial was not clearly erroneous.

Judgment affirmed and case remanded with direction.

Andrews, P. J., and Ellington, J., concur.

       OCGA § 16-13-31 (a) (1).

       OCGA § 16-7-20.

       See Lott v. State, 303 Ga. App. 775 (1) (694 SE2d 698) (2010). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Punctuation omitted.) Turner v. State, 298 Ga. App. 107, 108 (679 SE2d 127) (2009).

       (Punctuation omitted.) Wilson v. State, 256 Ga. App. 741, 742 (1) (569 SE2d 640) (2002).

       (Punctuation omitted.) Id.

       (Punctuation and footnote omitted.) Turner, 298 Ga. App. at 108-109.

       See id.

       (Punctuation omitted.) Johnson v. State, 267 Ga. App. 549, 551 (2) (600 SE2d 667) (2004).

        See Mathis v. State, 204 Ga. App. 896, 897 (1) (420 SE2d 788) (1992) (“The equal access rule is not properly invoked in regard to persons who are merely visiting, even overnight; thus!,] equal access is not merely access.”) (punctuation omitted; emphasis in original).

        Wilson, 256 Ga. App. at 743 (1). See Johnson, 267 Ga. App. at 551 (2).

       (Citations and punctuation omitted.) Adams v. State, 290 Ga. App. 299, 300 (1) (659 SE2d 711) (2008).

       (Punctuation omitted.) Hampton v. State, 287 Ga. App. 896, 899 (2) (652 SE2d 915) (2007).

       (Punctuation omitted.) Id.

       See id.

       (Punctuation omitted.) King v. State, 259 Ga. App. 589, 591 (2) (578 SE2d 176) (2003).

       See, e.g., Wright v. State, 276 Ga. 419, 422 (5) (e) (577 SE2d 782) (2003) (“All strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client. Such decisions rarely qualify as grounds for a finding of ineffectiveness.”) (citation and punctuation omitted).

       Brown does not challenge the admission of the evidence based on the similarity of the acts.

       (Citation and punctuation omitted.) Bell v. State, 291 Ga. App. 294, 295 (1) (661 SE2d 649) (2008).

       (Punctuation omitted.) White v. State, 213 Ga. App. 429, 430 (1) (445 SE2d 309) (1994).

        Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

       The State contends that trial counsel’s testimony at the hearing also supports this finding, but counsel testified that he could not remember what pre-trial hearings were conducted in this case.

       (Punctuation omitted.) White, 213 Ga. App. at 431 (1).

       (Citations omitted.) Id.

       See, e.g., Tucker v. State, 299 Ga. App. 278, 280 (2) (683 SE2d 356) (2009).

       (Punctuation omitted.) Hargrove v. State, 299 Ga. App. 27, 31 (2) (681 SE2d 707) (2009).

       (Punctuation omitted; emphasis supplied.) Id. at 31-32 (2).

        See Lemming v. State, 292 Ga. App. 138, 141-142 (1) (663 SE2d 375) (2008) (trial judge was formerly prosecutor involved with defendant’s prior convictions); Phillips v. State, 267 Ga. App. 733, 736 (2) (601 SE2d 147) (2004) (trial judge presided over probation revocation hearing).

        Wise v. State, 257 Ga. App. 211, 214 (2) (570 SE2d 656) (2002).

        Overton v. State, 270 Ga. App. 285, 289 (2) (606 SE2d 306) (2004).

       See Wallace v. State, 272 Ga. 501, 505-506 (5) (530 SE2d 721) (2000).

       (Punctuation omitted.) Peardon v. State, 287 Ga. App. 158, 160 (651 SE2d 121) (2007).

       See, e.g., id. (upholding as lawful a search incident to a Fourth Amendment waiver conducted after officers received a tip from a confidential informant). See also Spencer v. State, 293 Ga. App. 450, 452 (667 SE2d 223) (2008).

       282 Ga. 784 (653 SE2d 456) (2007).

       Id. at 787 (1) (a). See also Anderson v. State, 292 Ga. App. 826,828 (666 SE2d 70) (2008) (distinguishing Jones on the same basis).

       (Citation omitted.) Boykins-White v. State, 305 Ga. App. 827, 832 (4) (701 SE2d 221) (2010).

       See Spencer, 293 Ga. App. at 452.


author: SMITH, Presiding Judge.

text:
    A10A1204.
    RNW FAMILY PARTNERSHIP LTD. v. DEPARTMENT OF TRANSPORTATION.
    (704 SE2d 211)
   SMITH, Presiding Judge.

Following a jury trial in this condemnation case, the superior court entered a judgment in favor of the condemnee RNW Family Partnership, Ltd. (“RNW”) in the amount of $109,130. Following the denial of its motion for new trial, RNW appeals, alleging several claims of error. Having reviewed those claims, we find no reversible error and affirm.

The record reveals that RNW owned an 198.13-acre tract of land in McDuffie County, Georgia at the corner of Highway 78 and Highway 278. The lot was also referred to as the corner of Harrison Road and Augusta Highway. As part of a project to construct a limited access highway, the Department of Transportation (“DOT”) filed a petition to condemn 13.022 acres of RNW’s 198.13-acre tract along with certain easement and access rights. The DOT deposited $72,200 into the registry of the court as just compensation for the property. The trial court then entered an order condemning the 13.022 acres.

RNW contested the amount of compensation offered and requested a jury trial. At trial, RNW presented two expert real estate appraisers on the issue of just and adequate compensation. One placed the total just and adequate compensation for the taking at $1,074,500 ($144,000 for the taking, $900,500 for damages, and $30,000 for water and sewer for the remainder), and the other valued it at $519,000 ($108,000 for the taking and $411,000 for damages). The DOT’s expert valued the taking at $109,124 and concluded that this amount was just and adequate compensation. The jury returned a verdict in favor of RNW in the amount of $109,130.

1. RNW first claims that the verdict is “contrary to law and the evidence” because the DOT’s expert failed to give any value to RNW’s loss of access to approximately 3,800 feet of frontage to Harrison Road. But the record reflects that the expert explained that any access to the DOT bypass along the approximately 3,811 feet of frontage taken along with the 13.022 acres would be limited by the bypass itself and that RNW never owned access rights to the bypass. He explained further that the frontage had been considered in the valuation of the property.

2. RNW contends that the court erred in failing to apply OCGA § 51-12-12. That Code section provides that “ [i]f the jury’s award of damages is clearly so inadequate or so excessive as to any party as to be inconsistent with the preponderance of the evidence, the trial court may order a new trial as to damages only.” OCGA § 51-12-12 (b). But here, “[t]he jury’s award was well within the range of the undisputed and competent evidence before it.” (Citation and punctuation omitted.) Dept. of Transp. v. Jordan, 300 Ga. App. 104, 107 (684 SE2d 141) (2009). This claim of error is therefore without merit.

3. RNW claims that the trial court erred in failing to give two of its requested jury charges: “The right of access to a public road is a property right which arises from the ownership of land adjacent to a public road, and the landowner cannot be deprived of this right without being paid just and adequate compensation,” and

Interfering with access to a property by impeding or making it difficult to access (either into or out of) is a taking that entitles the property owner to just and adequate compensation. Any substantial interference with existing rights of ingress and egress will entitle a landowner to damages, it is not necessary for a condemning authority to have totally cut off access to a property.
It is well settled that
[i]n order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge. Further, the mere fact that a requested charge was taken from an opinion of our appellate courts does not render its use appropriate in charging the jury.

(Citation, punctuation and footnote omitted.) Ga. Dept. of Transp. v. Miller, 300 Ga. App. 857, 864 (4) (a) (686 SE2d 455) (2009). Here, RNW’s first requested charge is nearly identical to jury instructions given by the trial court. The court’s instructions also sufficiently covered the concept of loss of access.

Even though a request to charge may be apt, correct and pertinent, it is not necessarily error to fail to charge it. We must look to the charge as a whole to determine whether the court substantially covered the principles embodied therein or whether it was sufficiently or substantially covered by the general charge.

Id. at 865 (4) (a). Viewing the charge as a whole, we find no error. The trial court therefore did not err in refusing to give the requested charges.

4. RNW argues that the verdict cannot stand because the DOT’s expert relied upon a “pro rata” method of determining the value of the property without considering its unique characteristics. Valuation of the portion condemned on a pro rata basis relative to the entire tract is not allowed “in the absence of an evidentiary foundation for such a conclusion.” (Citation and punctuation omitted.) Ga. Dept. of Transp. v. Crumbley, 271 Ga. App. 706, 708 (610 SE2d 663) (2005).

Here, each expert relied upon the “pro rata” method in determining the value of the property taken, and each explained the basis for his conclusion. One of RNW’s experts explained that after the taking “the commercial aspect is no longer there. You no longer have access along Harrison Road,” and that “you’ve eliminated all the pluses that that corner has . . . it’s going to lower the value of the houses and decrease the value of the lots.” He testified further to the reduction in the value of the remainder after the taking. RNW’s second expert testified that the remainder of the property would have no access points along the bypass and would have limited access along Augusta Highway. He testified further that the taking would remove “any commercial viability for that corner. So, basically the remainder of the property all becomes single-family residential property.” The testimony from RNW’s experts establishes that they determined that the value per acre of the portion taken from the whole is more than the value per acre of the whole tract. See Loggins v. Dept. of Transp., 264 Ga. App. 514, 515-516 (591 SE2d 365) (2003).

The DOT’s expert explained that he considered the value of the entire parcel, the value of the taking, and whether the value of the remainder was less as a result. He determined that the remainder of the property would be enhanced in value by the construction of the bypass which “makes it more readily marketable.” He explained further that a small portion of the remainder could be used for residential lots and that for the larger remainder, “the highest and best use stays the same. You can continue using it for agricultural use until these urban uses develop, the demand for them appears.” The expert therefore essentially concluded that the value per acre of the portion taken from the whole is less than the value per acre of the whole tract. See Loggins, supra at 515-516. Under these circumstances, RNW has failed to show any error in the experts’ use of the “pro rata” method of valuation. See id.

5. RNW contends that the trial court erred in failing to inform the jury that it could consider the right to cure as a part of consequential damages. Following RNW’s expert’s testimony that the cost to connect water and sewer to the remainder of the property after the taking would be $30,000, the DOT moved to strike the testimony, arguing that the expert cannot “add in the cost to cure something on the consequential damage.” After some discussion, the DOT agreed to reserve the motion to strike and to allow the expert to continue his testimony.

When the DOT renewed its motion to strike, the following colloquy took place:

THE COURT: All right. While he’s looking at that, [trial counsel], on the other point, are you familiar with the case of Steele vs. DOT decided on November 25th, 2008?
[Trial Counsel]: No, Your Honor, I’m not.
THE COURT: Okay. That case held, [a]s a result of the taking, cost to cure may be considered a factor in establishing reduced fair market value of remaining property after taking; however, it is not recoverable as a separate element of damage. The issue is not whether specific monetary value is assigned as cost to cure but whether the evidence is improperly used to claim cost to cure as a separate element of damage rather than to properly explain how cost to cure was used as a factor in determining consequential damages. Doesn’t that answer the question?
[Trial Counsel]: I believe it does. As to the $30,000?
THE COURT: Yes, sir.
THE COURT: All right. I’m going to hear all the evidence and then I’ll rule, and I’ll instruct the jury accordingly. But, now, I will tell them about the $30,000, or if you want to go on and do it yourself, that’s fine if you want to handle it.
[Trial Counsel]: I’ll try to handle it, Your Honor. If I don’t do a good enough job, I know you will correct me.
THE COURT: All right, sir. I don’t mind telling them myself, now, if you want me to.
[Trial Counsel]: I think we can — I’ll try to clear it up, Your Honor.

When trial counsel failed to have the expert clarify that the cost to cure is not recoverable as a separate element of damages, the court sua sponte instructed the jury: “before we start back, I want to make you aware of a ruling that I have made. And that is that the $30,000 that [the expert] testified to that it would cost, I believe, to connect some water or so forth is not a separate item of damages that can be recovered as a separate item by the Condemnee.”

Decided November 24, 2010.

Jimmy D. Plunkett, for appellant.

Thurbert E. Baker, Attorney General, Capers, Dunbar, Sanders, Bruckner & Bellotti, Paul H. Dunbar III, for appellee.

The court was correct in explaining to trial counsel that “evidence of damage to property as a result of a taking, as represented by a cost to cure, may be considered a factor in establishing the reduced fair market value of the remaining property after the taking although the cost to cure may not be recovered as a separate element of damage.” (Citation, punctuation and footnote omitted.) Dept. of Transp. v. Crowe, 299 Ga. App. 756, 757 (683 SE2d 695) (2009). Although the trial court instructed the jury that the cost to cure may not be recovered as a separate element of damage, it did not inform the jury that the cost to cure could be a factor in establishing the reduced fair market value of the remaining property after the taking. But RNW did not take advantage of the opportunity provided by the court to have its expert clarify cost to cure for the jury. And RNW has waived any claim of error because it made no objection following the court’s instruction. See OCGA § 5-5-24 (a); Singleton v. Terry, 262 Ga. App. 151, 155 (4) (584 SE2d 613) (2003). Moreover, we find no substantial error in the court’s instruction that was harmful as a matter of law in light of the court’s charge to the jury at the end of trial concerning consequential damages. See OCGA § 5-5-24 (c).

6. Finally, RNW complains that the trial court erred in allowing the DOT during opening statements “to inform the jury of the procedure used to bring this case before a jury.” But RNW “did not object to the specific language in the opening statement about which they now complain. Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.” (Citation omitted.) Southern Cellular Telecom v. Banks, 208 Ga. App. 286, 287 (2) (431 SE2d 115) (1993).

Judgment affirmed.

Mikell and Adams, JJ., concur.

       The record also reveals that the trial court and counsel for the DOT acknowledged, in the presence of RNW’s counsel, that all of the experts used the “pro rata” method.


author: Blackwell, Judge.

text:
    A10A1255.
    PAXTON et al. v. CITIZENS BANK AND TRUST OF WEST GEORGIA.
    (704 SE2d 215)
   Blackwell, Judge.

Citizens Bank and Trust of West Georgia (“CB&T”) brought this lawsuit to recover on promissory notes securing loans to Hot-Lanta Developers Group, LLC (“Hot-Lanta”) and on guaranties of those loans by the individual members of Hot-Lanta. The guarantors appeal from an order of the trial court denying their motion to dismiss for lack of personal jurisdiction. The guarantors assert that the trial court erred in finding that each of them had transacted business in the State within the meaning of Georgia’s Long Arm Statute (OCGA § 9-10-90 et seq.). We affirm.

When a defendant moves to dismiss for lack of personal jurisdiction, he has the burden of proving that he is not subject to the jurisdiction of the court. Catholic Stewardship Consultants v. Ruotolo Assoc., 270 Ga. App. 751, 752 (608 SE2d 1) (2004). Where the motion is decided without an evidentiary hearing and based solely upon the written submissions of the parties, as it was here, any disputes of fact must be resolved in the light most favorable to the party asserting the existence of personal jurisdiction, and we review the decision of the trial court de novo. Home Depot Supply v. Hunter Mgmt., 289 Ga. App. 286, 286 (656 SE2d 898) (2008). See also Southern Electronics Distrib. v. Anderson, 232 Ga. App. 648, 648 (1) (502 SE2d 257) (1998).

Viewed in the light most favorable to CB&T, the record shows that all the guarantor-appellants are residents of, or companies based in, Alabama or Florida. Around 2004, each of the appellants was approached by Scott Miller, an insurance agent and financial planner in Dothan, Alabama, about a potential real estate investment in Georgia. All but two of the appellants attended a meeting at Miller’s Dothan office, where they saw a presentation by representatives of The Profile Group, an entity the appellants generally understood to be a Georgia-based real estate developer. At this meeting, The Profile Group representatives said that they were looking for passive investors in the development of residential property located in Georgia. They explained that the investors would just need to provide money and that The Profile Group would manage the development project, doing “all of the work” and “taking care of” the details.

To invest in the Georgia real estate development project, the appellants formed Hot-Lanta, an Alabama limited liability company. Each of the appellants invested money in Hot-Lanta to be reinvested in the Georgia development project, and each appellant received a membership interest in Hot-Lanta. Under the terms of Hot-Lanta’s articles of organization, each of the appellants was an initial manager of the company. The appellants do not dispute that Hot-Lanta, although organized in Alabama, registered to do business in Georgia.

Hot-Lanta secured additional funding for the project by borrowing money from CB&T, a Georgia bank. CB&T made two loans to Hot-Lanta, one in the principal amount of $1,650,000, and the other in the principal amount of $600,000. In connection with these loans, Hot-Lanta gave CB&T two promissory notes, as well as a security interest in the property being developed. Appellants Bradburn and Paxton executed the security deed on behalf of Hot-Lanta. The original loan appears to have been structured so that the debtor would pay only the interest until the property was developed and individual lots began to sell. As the lots sold, the loan principal would then be paid down, until the debt was satisfied.

Between 2004 and 2007, the appellants received updates on the development of the property, but they did not receive any return on their investment. In 2007, however, the appellants had another group meeting in Miller’s Dothan office, at which a representative of The Profile Group explained that, because of the economic downturn, the lots were not selling well. The Profile Group further explained that if the appellants wished the venture to continue, they would need to contribute additional funds to make the required loan payments.

After this meeting, appellants Paxton and Bailey traveled to Georgia to inspect the development. They also visited CB&T’s Carrollton office, where they spoke with two bank employees regarding the status of the loan. In January 2008, Hot-Lanta renewed the original loans and executed two promissory notes in favor of CB&T, one in the principal amount of $800,745.76, and another in the principal amount of $595,073.79. The notes have identical terms, each stating that the accrued interest would be paid monthly and that the principal would be due on July 5, 2008. The notes also contain a choice of law provision that states, in relevant part: “The laws of the United States and, to the extent not inconsistent therewith, of the State of Georgia will govern this note.”

In connection with these loan renewals, CB&T required that each member of Hot-Lanta provide it with a personal guaranty. Those guaranties expressly recite that they were given for the purpose of inducing CB&T “to make loans or extend other accommodations to or for the account of Hot-Lanta Developers Group, LLC.” The guaranties acknowledge that CB&T is located in Georgia and contain a choice of law provision, which provides that the guaranties are “governed by the laws of the State where the Lender is located.” All communications between CB&T and the appellants with respect to the loan renewals and the related guaranties were accomplished by electronic mail, telephone, or United States Mail. The appellants executed all of the relevant documents in Alabama and transmitted them to CB&T in Georgia.

Between January and July 2008, each member of Hot-Lanta contributed additional funds to make the interest payments required under each of the promissory notes. In July 2008, however, the property still had not sold, and CB&T refused to renew the loans unless Hot-Lanta made a $300,000 payment on the principal amount. When the appellants declined to make such a payment on behalf of Hot-Lanta, the loan went into default. CB&T then filed the current action against Hot-Lanta and the appellants, seeking to recover on the promissory notes and the guaranties.

In its complaint, CB&T alleged that the trial court properly may exercise personal jurisdiction over the appellants because each has transacted business in Georgia. The appellants answered that the trial court lacks personal jurisdiction over them, and they subsequently filed motions to dismiss on the same grounds. Following a nonevidentiary hearing, the trial court summarily denied the motions to dismiss for lack of personal jurisdiction, but it granted a certificate of immediate review. This Court granted the appellants’ application for an interlocutory appeal, and this appeal followed.

Georgia’s Long Arm Statute permits the exercise of personal jurisdiction over a nonresident defendant if he, personally or through an agent, “[transacts any business within this [S]tate.” OCGA § 9-10-91 (1). In Innovative Clinical &c. Svcs. v. First Nat. Bank &c., 279 Ga. 672, 675 (620 SE2d 352) (2005), our Supreme Court explained that “OCGA § 9-10-91 (1) grants Georgia courts the unlimited authority to exercise personal jurisdiction over any nonresident who transacts any business in this State ... ‘to the maximum extent permitted by procedural due process,’ ” and it overruled all prior decisions that interpreted “[transacts any business within this [S]tate” more narrowly.

In determining the limits of procedural due process, this Court applies a three-part test:

Jurisdiction exists on the basis of transacting business in this [SJtate if (1) the nonresident defendant has purposefully done some act or consummated some transaction in this [S]tate, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this [Sítate does not offend traditional [notions of] fairness and substantial justice.

(Punctuation and footnote omitted.) Aero Toy Store v. Grieves, 279 Ga. App. 515, 517-518 (1) (631 SE2d 734) (2006). We examine the first two factors “to determine whether [a] defendant has established the minimum contacts [with the forum state] necessary for the exercise of jurisdiction.” (Citation and punctuation omitted.) ATCO Sign &c. Co. v. Stamm Mfg., 298 Ga. App. 528, 534 (1) (680 SE2d 571) (2009). If such minimum contacts are found, we move to the third prong of the test to consider whether the exercise of jurisdiction is “reasonable” — that is, to ensure that it does not result solely from “ ‘random,’ ‘fortuitous’ or ‘attenuated’ contacts. [Cit.]” Id.

1. The appellants claim that the first prong of the test cannot be satisfied here because they did not physically consummate any transaction in Georgia. Rather, they note, they executed the guaranties in Alabama and then mailed them to Georgia. In addition, they say, all of their communications with CB&T were by electronic mail, telephone, or United States Mail, except for the single occasion when Paxton and Bailey traveled to Georgia to inspect the property and meet with bank officials. We are not persuaded.

The appellants’ argument ignores Innovative Clinical &c. Svcs., supra, in which our Supreme Court said that “nothing in subsection (1) [of OCGA § 9-10-91] requires the physical presence of the nonresident in Georgia or minimizes the import of a nonresident’s intangible contacts with the State.” 279 Ga. at 675. In light of Innovative Clinical &c. Svcs., it seems clear that Georgia “allows the assertion of long-arm jurisdiction over [nonresident defendants based on] business conducted through postal, telephonic, and Internet contacts.” ATCO Sign &c. Co., supra, 298 Ga. App. at 534 (1). See also Home Depot Supply, supra, 289 Ga. App. at 289 (“even where a nonresident defendant has no physical presence in Georgia, intangible contacts, such as telephone communications, can be sufficient to establish ‘minimum contacts’ which meet the constitutional standard for the exercise of personal jurisdiction”); Aero Toy Store, supra, 279 Ga. App. at 520 (1) (“a single event may be a sufficient basis for the exercise of long arm jurisdiction if its effects within the forum are substantial enough[,] even though the nonresident has never been physically present in the state”) (footnote omitted). For this reason, for purposes of considering personal jurisdiction, we look not just to the place where the guaranties were executed, but we instead examine all of the relevant circumstances, including the purpose of the transaction and the terms of the contracts themselves. See Drennen v. First Home Savings Bank, 204 Ga. App. 714, 716 (1) (420 SE2d 376) (1992).

Our analysis is informed by several prior decisions that involved substantially similar factual circumstances. Drennen, like this case, involved personal guaranties given by the owners of an entity in connection with a loan to that entity. The owners were residents of Alabama, and the loan at issue was arranged by an Alabama loan broker and was made by a New Jersey bank. The purpose of the loan was to finance construction of a motel in Georgia. When the loan went into default, the bank sued the owners in Georgia to recover under the guaranties, and the owners moved to dismiss for lack of personal jurisdiction. The trial court denied that motion, and this Court affirmed, reasoning:

Appellants executed the personal guarantees in order to induce appellee to make the notes to [the entity,] RHY and the proceeds of those notes were used to construct and equip a motel in Georgia owned and operated by RHY a corporation registered to do business in Georgia. The loans were secured by real property and fixtures located in Georgia. Given that RHV was incorporated for the express purpose of constructing and operating the motel, the parties undoubtedly intended for the loan payments to be made from the proceeds of the motel’s Georgia operations. By constructing the motel in Georgia from the loan proceeds and by travelling to Georgia periodically to oversee its continued operation and to discuss the loan defaults with [the bank’s] Georgia representatives, appellants established a continuing relationship with Georgia in connection with the guarantees.

Id. at 716-717 (1).

Similarly, Georgia R. Bank &c. Co. v. Barton, 169 Ga. App. 821 (315 SE2d 17) (1984), was a lawsuit against a nonresident on promissory notes given to a Georgia bank in connection with a loan. Barton was a real estate developer and resident of South Carolina and Florida. When the bank sued Barton to collect on the notes, Barton asserted lack of personal jurisdiction, arguing that because the loan documents had been sent to, received by, and executed by him in South Carolina, they did not represent a business transaction in Georgia. In reversing the grant of his motion to dismiss, this Court observed that “[t]here can be little doubt that appellee knowingly and purposefully availed himself of the financial resources of a Georgia banking institution; nor can one seriously dispute that the economic effect of a default of $125,000 would be ‘substantial.’ ” 169 Ga. App. at 823. We concluded that the first prong of the jurisdictional test was satisfied because Barton “purposefully did an act or acts and consummated a transaction or transactions within the [S]tate, so as to establish legally sufficient contacts.” Id.

Twenty years after Barton, we relied on both its reasoning and that of Drennen to find that Georgia could exercise personal jurisdiction over an out-of-state resident in a suit on a personal guaranty. Robertson v. CRI, Inc., 267 Ga. App. 757 (601 SE2d 163) (2004). In that case, Robertson, a resident of California and Arizona, was sued on a personal guaranty he gave to secure a loan to his employer made by a Georgia branch of a national bank. The employer was a Delaware corporation with its principal office in Atlanta and another office in California. Robertson worked out of the California office, but he did travel to Atlanta in connection with the employer’s business. Robertson never traveled to Georgia for the purpose of negotiating or discussing the loan, however, and he executed the guaranty in California. Although Robertson asserted that the court lacked jurisdiction over him, we disagreed, and concluded that “as in Barton, Robertson could be characterized as having availed himself of the resources of a Georgia financial institution, and the [$400,000] loan could be characterized as substantial, thus showing the purposeful activity in Georgia required to satisfy the first prong of the test.” Id. at 760.

In an attempt to avoid the impact of Drennen, Barton, and Robertson, the appellants here argue that our decision in Southern Electronics Distrib. v. Anderson, supra, 232 Ga. App. at 648, demands that we find they each lacked the requisite minimum contacts with Georgia. We disagree.

Southern Electronics was a lawsuit on a guaranty against Anderson, a resident of Alabama and a principal in an Alabama corporation. In his capacity as a corporate principal, Anderson had executed, on behalf of the corporation, two separate credit agreements with Southern Electronics, a Georgia entity. In connection with the first credit agreement, Anderson also executed a personal guaranty. After the Alabama corporation went bankrupt, Southern Electronics sued Anderson in Georgia. The trial court granted Anderson’s motion to dismiss for lack of personal jurisdiction, and this Court affirmed. In so doing, we relied on the then-current rule that “[tjelephone and mail contact by an out-of-state defendant [with a Georgia resident] do not, alone,” constitute the requisite minimum contacts for the exercise of long-arm jurisdiction. 232 Ga. App. at 650 (1). Because the vast majority of Anderson’s contacts with Southern Electronics had been by telephone and the United States Mail, we concluded that he did not have sufficient minimum contacts with Georgia to satisfy the first prong of the jurisdictional test. Id. We further noted that although Anderson had made two visits to Southern Electronics’ Georgia offices, he did so in his capacity as a principal of the corporation and that there was “nothing to indicate any other act by Anderson to avail himself personally of the law of Georgia.” Id.

The legal principle upon which Southern Electronics seems to have been based — that electronic, telephonic, and postal contacts, as a matter of law, cannot amount to transacting business in Georgia — was flatly rejected by our Supreme Court in Innovative Clinical &c. Svcs., 279 Ga. at 675. Moreover, the personal guaranty at issue in Southern Electronics appears to have been gratuitous — that is, given for the benefit of the corporation only and not for the guarantor’s personal benefit. The same cannot be said of the personal guaranties at issue here. Instead, the appellants here guarantied the loan renewals because each had a significant financial interest in the real estate development, and they were seeking to avoid foreclosure on the property so that they would have the opportunity to at least recoup their initial investments. Unlike the guarantor in Southern Electronics, the appellants in this case availed themselves of the law of Georgia by signing personal guaranties to induce a Georgia bank to renew loans to a company they owned and for the purpose of financing a real property development in Georgia in which their company had invested with the hope of profiting personally from the transaction. In short, we think that the continuing viability of the holding of Southern Electronics is questionable in light of Innovative Clinical &c. Svcs., and we think that Southern Electronics is distinguishable in any event.

We think that Drennen, Barton, and Robertson are more like this case, and applying the rationale of these decisions, we must conclude that the first prong of the jurisdictional test is satisfied. Although Hot-Lanta was an Alabama company, it was registered to do business in Georgia, and the appellants understood that it was formed for the sole purpose of developing property in this State. While all of the appellants may not have known that the lender was located in Georgia at the time of their original investment in Hot-Lanta, they certainly knew that they were dealing with a Georgia lender by the time they induced the renewal of the loans by executing personal guaranties. Given these circumstances, the appellants transacted business in this State, within the meaning of OCGA § 9-10-91 (l).

2. We also find that the second prong of the jurisdictional test is satisfied because CB&T’s claims arise out of appellants’ Georgia activities, including the loan transaction and related guaranties. See Robertson, supra, 267 Ga. App. at 762 (bank’s claim arose out of “Robertson’s Georgia-related activities in that he signed the [loan documents] and [g]uaranty to induce a Georgia-based bank to fund the operations of a Georgia-based corporation of which he was a shareholder, director, and officer”); Barton, supra, 169 Ga. App. at 824 (“The direct connection between the execution of the notes and [the bank’s] suit for collection is so obvious as to require no elaboration. Suffice it to say that the second prong of the test is also satisfied.”).

3. Having applied the first two prongs of the jurisdictional test and concluded that the appellants have the requisite minimum contacts with Georgia, we now must determine whether the exercise of jurisdiction by a Georgia court over the appellants in this case comports with “traditional [notions of] fairness and substantial justice.” Aero Toy Store, supra, 279 Ga. App. at 518 (1). In making this determination, we

evaluate [those] factors that impact on the reasonableness of asserting jurisdiction, such as the burden on defendant, the forum state’s interest in adjudicating the dispute, plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the states in furthering substantive social policies.

(Citation and punctuation omitted.) ATCO Sign &c. Co., supra, 298 Ga. App. at 534 (1).

In this case, the appellants have pointed to no evidence showing that litigating this action in Georgia would unduly burden them. All of the appellants are residents of either Alabama or Florida, and the appellants identify no logistical or financial difficulties in defending a case in Georgia that might amount to an undue burden. Moreover, Georgia clearly has an interest in adjudicating this dispute, given that it involves both a significant loss suffered by a Georgia financial institution and real property located in this State. Furthermore, as the discussion in Division 1, supra, demonstrates, appellants have not been sued in Georgia because of random or fortuitous circumstances. See Home Depot Supply, supra, 289 Ga. App. at 289; Genesis Research Institute v. Roxbury Press, 247 Ga. App. 744, 745 (542 SE2d 637) (2001). Given the appellants’

purposeful personal dealings with the Georgia [bank], dealings which bestowed substantial benefits to [appellants] and induced substantial action by [the bank] to its detriment, “neither reasonableness nor fair play nor substantial justice would be offended” by haling [appellants] into a Georgia court and exercising jurisdiction over [them].

Decided November 24, 2010.

Brock, Clay, Calhoun & Rogers, Carl G. Kleeman IV, for appellants.

Smith, Diment & Conerly, Joseph N. Smith, Charles S. Conerly, Randall C. Parian, for appellee.

White House, Inc. v. Winkler, 202 Ga. App. 603, 605 (415 SE2d 185) (1992). See also Barton, supra, 169 Ga. App. at 823.

In light of “appellants’ deliberate affiliation with Georgia and the reasonable foreseeability of litigation here,” Drennen, supra, 204 Ga. App. at 717 (1), we find that they are subject to the personal jurisdiction of Georgia’s courts in this case. Accordingly, we affirm the order of the trial court.

Judgment affirmed.

Miller, C. J., and Johnson, J., concur.

       James R. Paxton, James A. Bradburn, Murray L. Baker, Kenneth L. Todd, and Daniel A. Bailey, are residents of Alabama or Florida; Paxton & Paxton, LLC, is an Alabama limited liability company owned solely by James Paxton and his wife. Dunn Properties, LLC, is an Alabama limited liability company owned solely by John Dunn, a resident of Alabama. Hopes, Dreams & Early Retirement, LLC, is an Alabama limited liability company owned solely by Michael Labanowski, a resident of Alabama.

       The two appellants who did not attend the meeting learned about the investment opportunity directly from Miller.

       The articles of organization provided that these persons and entities would serve as the initial managers only until the first annual meeting of the members, at which time one or more members would be elected as managers, to serve a one-year term. There is no evidence in the record, however, that shows such an election ever occurred.

       We emphasize that this case involves a commercial loan, not a consumer loan, and that the guarantors had a stake in the borrower. We decide nothing today about personal jurisdiction in a case involving a consumer loan or a gratuitous guaranty.


author: Barnes, Presiding Judge.

text:
    A10A1336.
    In the Interest of D. Q. et al., children.
    (704 SE2d 444)
   Barnes, Presiding Judge.

The mother of D. Q. and J. Q. appeals from the order of the juvenile court finding the children to be deprived. She challenges the sufficiency of the evidence, contending that there was no clear and convincing evidence of emotional or physical abuse and that the evidence showed that she had provided the children with the required counseling.

On appeal from a juvenile court’s order finding deprivation, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. In doing so, we neither weigh the evidence nor determine the credibility of witnesses; instead, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

(Citations, punctuation and footnotes omitted.) In the Interest of H. S., 285 Ga. App. 839 (648 SE2d 143) (2007).

So viewed, the evidence shows that in January 2009, the Douglas County Department of Family and Children Services (“DFACS”) received a referral regarding 14-year-old D. Q. The mother had taken D. Q. to Douglas Wellstar Hospital and requested that he be admitted for his behavior, and when the hospital would not admit the child because he did not fit the admission criteria, the mother refused to take him home. The mother admitted to staff that she bit D. Q. during the altercation.

Upon the mother’s request for assistance with D. Q., the case manager referred the family for in-home services. The mother, however, refused to sign a release for D. Q.’s medical and mental health history. She told the caseworker that she would provide DFACS with the information. The mother signed a safety plan which referenced her request for “assistance with interventions for [D. Q.] in the event that he attack[ed] her.” Neither child was removed from the home.

On March 6, 2009, the mother attended a family planning meeting, and a family plan was created which required her to “provide protection and safety for [the] children with the steps focusing on [her] meeting the children’s medical/mental health and educational needs.” She was also required to use appropriate forms of discipline, participate in counseling with D. Q., follow the recommendations of the counselor, and maintain safe housing.

On July 21, 2009, DFACS filed a deprivation petition alleging that the mother had only minimally complied with the family plan, had failed to take the children to their psychiatrist in a timely manner, and was inconsistent with regard to the children’s mental health, behavioral, and educational needs. The petition also alleged that 13-year-old J. Q. was cutting herself and was often late to school because the medications she took caused her to oversleep. It further alleged that the mother was not forthcoming with required medical and educational information about the children and was “unable to provide all of the needful and necessary parental care, guidance and supervision required to assure the health, safety, welfare, and well-being” of D. Q. and J. Q.

On September 22, 2009 nunc pro tunc to August 7, 2009, the juvenile court issued an order finding probable cause of deprivation because of the mother’s failure to cooperate with the family plan, address the children’s mental health issues, or fully cooperate with DFACS. Four adjudicatory hearings at which the mother was present were held on August 7, 2009, September 9, 2009, October 16, 2009, and November 18, 2009.

The DFACS caseworker testified that the mother had yet to fully comply with the family plan she signed related to the needs of D. Q. and J. Q. DFACS had not received signed medical releases it needed to substantiate the mental health treatment the mother claimed the children were receiving. Although DFACS offered the mother mental health services for the children through OASIS counseling center, the mother was not receptive to the assistance and would not schedule the appointments.

The caseworker also testified that when she visited the home in May 2009, she discovered that J. Q. was cutting herself, and although she emphasized to the mother that a family team meeting needed to be held to amend the family plan to include services for J. Q.’s mental health issues, the mother was never available to meet until after the deprivation petition was filed. The caseworker testified that the mother also called the police on D. Q. for unruly behavior, but later dismissed the complaint.

The children’s primary care doctor testified that he began seeing D. Q. and J. Q. in 2004. The doctor testified that at D. Q.’s first office visit, he was informed by the mother that D. Q. had a seizure disorder and Attention Deficit Hyperactivity Disorder (“ADHD”). He testified that although he had prescribed Adderall for both children, he had not tested the children for ADHD, but that they were “already diagnosed with ADHD” before they became his patients. The doctor also testified that he prescribed Depakote for D. Q. because the child had epilepsy, based on an earlier diagnosis. The doctor admitted that he had no records from a neurologist making the diagnosis, but that the mother told him that D. Q. had epilepsy.

The primary care doctor also testified that the mother did not tell him about the children’s other mental health issues, including that she had attempted to have D. Q. admitted into a hospital for emergency mental health assistance, or that J. Q. was cutting herself. The doctor testified that he had never seen any medical records from the children’s other doctors, that he obtained his information about the children’s medical background from the mother, and that she was a good reporter of her children’s medical problems.

The children’s psychiatrist testified that he had been treating the children since 2004, and that he had made a diagnosis of ADHD and bipolar disorder. However, he did not provide individual counseling for the children. The psychiatrist testified that he had originally treated D. Q. and J. Q. with Adderall, Risperdal, Depakote, and Zoloft, but at the time of the November hearing, the children were only taking Adderall because the children’s “anger and mood swings” had substantially subsided. The psychiatrist was not aware that the children were also prescribed Adderall by their primary care doctor and testified that he did not know that D. Q. was taking Depakote. The psychiatrist also testified that he was aware that D. Q. was exhibiting aggressive behavior at school and toward his mother, and also that J. Q. had bitten a teacher and stabbed another student with a pencil. He further testified that he had briefly prescribed Risperdal for J. Q.’s cutting, but that he discontinued the medication after about one month when her condition stabilized.

The mother testified at the deprivation hearing that D. Q. had been hospitalized several times starting at “about five or six years old” for his mental health issues. She also testified that J. Q. suffered a mental breakdown when she was approximately seven or eight years old and was hospitalized. The mother recalled that J. Q. had been hospitalized a second time although she could not recall the exact time. The mother testified that in addition to the other diagnoses, J. Q. had multiple personality disorder when she was younger, and had been sexually abused by a babysitter, a great uncle, and a mentally handicapped boy. The mother testified that J. Q. had counseled with a pastor about her “cutting behaviors” rather than a licensed counselor. She further testified that the children did not want to continue traditional counseling and that she was attempting “recreational therapy” for D. Q.

Under OCGA § 15-11-2 (8) (A), “deprived child” is a child “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” “That definition focuses upon the needs of the child regardless of parental fault. The deprivation petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.” (Citation, punctuation and footnote omitted.) In the Interest of S. J., 270 Ga. App. 598, 599 (607 SE2d 225) (2004).

In the deprivation order, the court found that although the children had received Social Security disability since a very young age, the mother could not provide documentation as to the basis for the disability. The court further found that the behavior issues, including J. Q. cutting herself, were cause for concern, and while the mother requested help from DFACS, she was resistant to assistance either by “lack of communication [or] lack of cooperation.” The trial court found that the mother failed to attend a requested family team meeting although she had indicated she needed help with the children’s behavior. The court further found that despite the children’s various diagnoses, there was no coordination of treatment or medication between their physicians, or coordination of services with their schools. The juvenile court noted that despite allegations that D. Q. and J. Q. have a myriad of mental health issues, including ADHD, post-traumatic stress disorder, explosive disorder, depressive disorder, oppositional defiant disorder, and dissociative personality disorder, “[t]here is no individual therapy and no family therapy.” The trial court noted that the children’s psychiatrist “indicated a need for individual therapy but stated the distance between the residence and his location in Clayton County was one of the reasons therapy was not in place.”

The juvenile court also found substantiated physical abuse from the incident in which the mother had bitten D. Q. The court found that the children’s behavior in school had resulted in delinquent charges, and that one of the charges was related to J. Q. biting another student at school. The court attributed the behavior to J. Q. modeling her mother’s behavior. The juvenile court also found that the mother’s explanation of their present living arrangements was not credible, and put the children at risk for abuse. The mother purportedly had removed the children from Douglas County and lived in Fulton County in a home with 15 other people.

OCGA § 15-11-1 (1) mandates that the juvenile court’s primary responsibility is to consider and protect the welfare of children whose well-being is threatened. In the Interest of B. H., 190 Ga. App. 131, 133 (1) (378 SE2d 175) (1989). As noted earlier, the primary factor in a determination of deprivation is the children’s needs, not the parents’ circumstances. In the Interest of R. M., 276 Ga. App. 707, 715 (624 SE2d 182) (2005). The special medical needs of children and the parents’ inability to provide for those needs are relevant considerations. In the Interest of J. C. J., 207 Ga. App. 599, 602 (428 SE2d 643) (1993).

Under the circumstances in this case, the juvenile court correctly found that the evidence of the children’s deprivation was clear and convincing in that the evidence demonstrated that D. Q. and J. Q. were not receiving adequate support for their mental health issues. Their uncontrolled behavior related to these issues was negatively affecting their academic and social well-being. There was also clear and convincing evidence that the mother was not utilizing available resources to address the children’s problems, and that she had attempted to have D. Q. hospitalized because she could not control him. J. Q. also exhibited severe mental heath issues, including cutting herself and attacking other children, that were not adequately addressed. See In the Interest of D. T., 284 Ga. App. 336, 338-339 (1) (643 SE2d 842) (2007) (finding of deprivation upheld where evidence showed child had severe mental health issues and mother was unable to control the child).

Thus, the juvenile court did not err in finding D. Q. and J. Q. deprived.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Decided November 24, 2010

James K. Luttrell, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Andrea R. Moldovan, Assistant Attorneys General, for appellee.

       At the October 16, 2009 hearing, J. Q. was also arraigned on a charge of disruption of the public school system.