author: ANDREWS, Presiding Judge.

text:
    A16A1008.
    HARPER v. THE STATE.
    (790 SE2d 552)
   ANDREWS, Presiding Judge.

David Lamar Harper appeals pro se from the judgment of conviction entered on jury verdicts finding him guilty of two counts of criminal trespass in violation of OCGA § 16-7-21 (a) and (b) (2). For the following reasons, we affirm the conviction for violation of OCGA § 16-7-21 (a) and reverse the conviction for violation of OCGA § 16-7-21 (b) (2).

The State produced the following evidence: Harper was acting alone as a bail recovery agent for a professional bondsman when he entered the residence of Tina McDaniel through a locked door, without McDaniel’s knowledge or permission, and arrested Stephen Collier inside the residence on behalf of the bondsman for the purpose of surrendering Collier to state custody because his criminal bond had been forfeited. At the time of Harper’s intrusion, McDaniel was changing clothes in her bedroom when she heard her daughter scream, and she ran to find Harper inside her residence holding Collier to the floor while handcuffing him. McDaniel asked Harper who he was, and Harper responded that “he was Houston County.” Based on this response, McDaniel mistakenly thought that Harper was a Houston County police officer. Harper never identified himself as a bail recovery agent. Collier did not reside at the McDaniel residence — he was an acquaintance of McDaniel who was at the residence that day to perform work on a vehicle located at the residence. Before taking Collier from the residence, Harper told McDaniel that he had come in through the back door and that she “might need to get [her] door fixed.” Photographs of the door showed the property damage caused by Harper when he entered the residence through the locked door. After McDaniel reported the intrusion to police, Harper was arrested and charged with two counts of criminal trespass.

1. Even assuming (without deciding) that there was compliance with the licensing, registration, and other requirements for bail recovery agents (see OCGA §§ 17-6-56-17-6-58), there is no merit to Harper’s contention that his conduct as a bail recovery agent justified his entry into the residence without McDaniel’s consent for the purpose of seizing and arresting Collier on the forfeited criminal bond. Accordingly, there is no merit to Harper’s contention that justification (see OCGA § 16-3-20) was a complete defense to his prosecution for criminal trespass.

In the event of a forfeiture on a criminal bond by a defendant, a professional bondsman acting as a surety on the bond has the right to arrest and surrender the defendant into the state’s custody and may hire a bail recovery agent for that purpose. See OCGA §§ 17-6-54-17-6-58; 17-6-70, 17-6-71. The bondsman’s right to arrest the defendant arises from the bond agreement between the bondsman and his principal, the defendant. McCoy v. Johnson, 176 FRD 676, 679 (N.D. Ga. 1997); Raburn Bonding Co. v. State, 244 Ga. App. 386, 388 (535 SE2d 763) (2000).

When a person is arrested and released on bond, he is transferred from the custody of the sheriff to the custody of the bondsman. The control of a bondsman over his principal is “a continuance of the original imprisonment.” Taylor v. Taintor, 83 U. S. 366, 370, 21 L.Ed. 287 (1872); Coleman v. State, 121 Ga. 594, 597, 49 S.E. 716 (1905). Therefore, “[w]hen a prisoner is out on bond he is still under court control, though the bounds of his confinement are enlarged. His bondsmen are his jailers.” Carlson v. Landon, 342 U. S. 524, 547, 96 L.Ed. 547, 72 S.Ct. 525 (1952). The bondsmen have an interest in ensuring that the principals appear in court, because if they do not appear then the bond will be forfeited. As a result of their custody, bondsmen “have their principal on a string, and may pull the string whenever they please, and render him in their discharge.” Taylor, 83 U. S. at 371. If the principal refuses to surrender, the bondsman under common law can lawfully arrest him and return him to the sheriff’s custody. Id. at 371; Clark v. Gordon, 82 Ga. 613, 616, 9 S.E. 333 (1889); Bennett v. State, 169 Ga. App. 85, 311 S.E.2d 513 (1983). See Gray v. Strickland, 163 Ala. 344, 50 So. 152, 153 (Ala. 1909). Further, the common law conferred on bondsmen broad powers with which to effectuate their seizures of principals. As the Supreme Court stated in Taylor, bondsmen: “may exercise their rights in person or by agent. They may pursue [the principal] into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to rearrest by the sheriff of an escaping prisoner.” Taylor, 83 U. S. at 370 [(emphasis supplied)].

McCoy, 176 FRD at 679-680 (II) (A). Under the above authorities, the bond agreement between Collier and the bondsman carried with it Collier’s implied consent that the bondsman or Harper (as the bail recovery agent) may use reasonable force necessary to arrest Collier on a forfeited bond, including the use of reasonable force to enter Collier’s residence for that purpose. Bennett, 169 Ga. App. at 85-86; see State v. Burhans, 89 P3d 629, 634 (Kan. 2004); State v. Mathis, 509 SE2d 155, 160 (N.C. 1998); People v. Oram, 217 P3d 883, 889-890 (Colo. App. 2009); Fitzpatrick v. Williams, 46 F2d 40, 40 (5th Cir. 1931). But nothing in the bond agreement between the bondsman and Collier can be construed to provide authority for the bondsman, or the bondsman’s agent, to enter McDaniel’s residence (where Collier did not reside) without obtaining McDaniel’s consent. Mathis, 509 SE2d at 161; Burhans, 89 P3d at 634. Our decision in Mease v. State, 165 Ga. App. 746 (302 SE2d 429) (1983), did not hold otherwise. In that case, we concluded that the evidence did not support a finding that licensed bondsmen acted with an “unlawful purpose” in violation of OCGA § 16-7-21 (b) (1) when they entered the residence of a third party to arrest the defendant on a forfeited bond, but we specifically declined to address the question of whether or not the bondsmen entered the residence without authority Id. at 747-748. We find in the present case that, acting as the bondsman’s bail recovery agent, Harper had no authority to enter McDaniel’s residence for the purpose of arresting Collier without first obtaining McDaniel’s consent.

2. Nevertheless, we find that Harper’s criminal trespass conviction for violation of OCGA § 16-7-21 (b) (2) must be reversed because the State failed to produce evidence sufficient to establish the essential element of notice set forth in the charged offense.

Under the relevant provisions of OCGA § 16-7-21 (b) (2):

A person commits the offense of criminal trespass when he or she knowingly and without authority .. . [e] liters upon the . . . premises of another person . . . after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden....

To be found guilty of this offense requires proof that the accused entered knowingly and without authority after having received express notice that the entry was forbidden. Wood v. State, 227 Ga. App. 677, 678 (490 SE2d 179) (1997); Scott v. State, 130 Ga. App. 75, 78 (3) (202 SE2d 201) (1973) (essential element was “showing that [defendant’s] entry into the [premises] had previously been expressly forbidden”); Osborne v. State, 290 Ga. App. 188, 189 (665 SE2d 1) (2008) (essential element was showing that entry had previously been “expressly forbidden”). Express notice is required because “[i]nherent in the statute’s notice provision is a requirement that notice be reasonable under the circumstances, as well as sufficiently explicit to apprise the trespasser what property he is forbidden to enter.” Rayburn v. State, 250 Ga. 657, 657 (2) (300 SE2d 499) (1983) (emphasis supplied). As the Supreme Court stated in Murphey v. State, 115 Ga. 201, 202 (41 SE 685) (1902),

it ought in every case of this kind to be made to clearly appear, not only that the notice [not to enter] given to the accused was intended to apply to the particular [premises] alleged to have been unlawfully entered upon, but also that such notice was conveyed to him by language sufficiently explicit to enable him to so understand.

(Emphasis supplied.) The State failed to produce any evidence showing that Harper was given the required prior express notice not to enter McDaniel’s premises. The State’s allegation and proof that Harper was given prior “constructive notice” not to enter the premises when he entered without permission through a locked door was not sufficient to establish the prior express notice required for violation of OCGA § 16-7-21 (b) (2).

3. Harper was also convicted of criminal trespass by violation of OCGA § 16-7-21 (a) which provides in relevant part: “A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less. . . Evidence that Harper damaged a door to McDaniel’s residence when he entered without permission, including testimony and photographic evidence proving the damage, was sufficient to support the jury’s guilty verdict on this offense. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

4. To the extent Harper contends the trial court erred by failing to give a requested instruction to the jury that, as a bail recovery agent, he was justified based on lawful authority — the same authority as a law enforcement officer with a warrant — to forcibly enter McDaniel’s residence to arrest Collier on the forfeited criminal bond, we find no error. Because Harper failed to object, his contention is limited to a plain error analysis — whether there was error, whether the error was obvious, and whether it likely affected the outcome of the proceedings. Guajardo v. State, 290 Ga. 172, 176 (718 SE2d 292) (2011). As set forth in Division 1, supra, in the absence of any evidence that Collier resided at the residence, Harper had no authority to enter McDaniel’s residence without McDaniel’s permission. We find no plain error in the trial court’s failure to give the instruction.

Decided August 18, 2016

David L. Harper, pro se.

Rebecca L. Grist, Solicitor-General, Sharell F. Lewis, Assistant Solicitor-General, for appellee.

Having affirmed Harper’s conviction under OCGA § 16-7-21 (a) and reversed his conviction under OCGA § 16-7-21 (b) (2), we vacate the sentence and remand the case for resentencing.

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded for resentencing.

Doyle, C. J., and Ray, J., concur.

       “When bondsmen unilaterally apprehend their principals without any assistance from law enforcement officials, courts have consistently found them not to be state actors.” McCoy, 176 FRD at 682 (II) (b). Because there is no evidence in this case that Harper acted with assistance from law enforcement officials, Fourth Amendment requirements applicable to state actors are not implicated. See United States v. Steiger, 318 F3d 1039, 1045 (11th Cir. 2003); Landry v. A-Able Bonding, 75 F3d 200, 204-205 (5th Cir. 1996); Jaffe v. Smith, 825 F2d 304, 307-308 (11th Cir. 1987); Loden v. State, 199 Ga. App. 683, 687 (406 SE2d 103) (1991).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A16A1070.
    MORRIS v. BYRD.
    (790 SE2d 556)
   Boggs, Judge.

Sheila Morris appeals from the trial court’s grant of summary judgment in favor of Lois Byrd on Byrd’s claim for an express easement over Morris’s property Morris asserts that the trial court erred because the express easement at issue is too indefinite to be enforced. We agree and therefore reverse.

Summary judgment is proper when there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). So viewed, the record shows that Byrd relied solely upon the following language in a deed given by her to Morris’s father and predecessor in title, Kenneth Trowell, to prove the express easement: “Grantor herein reserves a right of ingress and egress over, in and to the above-described property.” Following a hearing in which it received evidence on the issue, the trial court issued an order granting Byrd’s motion for summary judgment “as to the theory of express easement only.” It found that the easement applied to “a certain road over land owned by [Morris] when [Byrd] conveyed said land” to Morris’s father, that this road was identifiable and had been in use since the 1930s, that the location of the road was known to both parties, and that it began where a gate was located. Based upon these conclusions, the trial court ordered Byrd to pay for a surveyor to prepare a plat for the location of the road, which the court deemed to be 20 feet in width.

Decided August 18, 2016.

Franklin D. Hayes, for appellant.

Clinton L. Lott TV, for appellee.

On appeal, Morris asks this court to conclude that the express easement Byrd sought to convey is unenforceable and void due to vagueness.

A description of land in a deed need not be perfect to be valid. A deed is sufficient to pass title, and will not be declared void for uncertainty of description, if the descriptive averments are certain, or if they afford a key by which the land can be definitely located by the aid of extrinsic evidence. Without a sufficient key in the deed, extrinsic evidence can not be added to complete the description . Whether a description in a deed is sufficient to convey property is a question of law for the court.

(Citations and punctuation omitted; emphasis supplied.) Houston v. Flory, 329 Ga. App. 882, 887 (1) (766 SE2d 227) (2014). This rule applies to the description of an express easement in a deed. Id.; Champion v. Neason, 220 Ga. 15, 16 (136 SE2d 718) (1964).

Here, the trial court erred when it used extrinsic evidence to identify a location and width for the easement because the general and unspecific language in the deed provides no key from which the location of the easement can be determined. See Pirkle v. Turner, 277 Ga. 308 (1) (588 SE2d 733) (2003); Smith v. Tolar, 281 Ga. App. 406, 408 (636 SE2d 112) (2006). We must therefore reverse the trial court’s order granting an express easement to Byrd.

Judgment reversed.

Barnes, P. J., and Rickman, J., concur.


author: Peterson, Judge.

text:
    A16A1210.
    HARDIN v. HARDIN.
    (790 SE2d 546)
   Peterson, Judge.

Douglas Andrew Hardin (the “father”) appeals the trial court’s order permitting Rita Hardin a/k/a Rita Barbagallo (the “mother”) to resume visitation with her youngest son in the form of weekly therapeutic sessions. He argues the trial court erred by entering a self-executing change of visitation, by failing to include a parenting plan with the order, and by failing to consider the best interests of the child. Because we find the court’s order to be a self-executing change of visitation of the sort prohibited under Georgia law, we vacate the order.

A trial court’s decision regarding a change in custody/ visitation will be upheld on appeal unless it is shown that the court clearly abused its discretion. And where there is any evidence to support the trial court’s ruling, a reviewing court cannot say there was an abuse of discretion.

Ezunu v. Moultrie, 334 Ga. App. 270, 272 (779 SE2d 44) (2015) (citation and punctuation omitted).

So viewed, the record shows the father filed a motion to modify custody and visitation, seeking sole physical custody and limitation of the mother’s visitation in accordance with the recommendation of a guardian ad litem. The mother’s regular visitation privileges with her children were later temporarily suspended by consent of the parties. Before deciding the father’s motion, the trial court elected to gather more information, including a professional evaluation. In late 2014, the professional evaluator submitted his report, in which he noted significant concerns about the mother’s mental health and concluded that he did not believe it to be in the best interests of the children to permit visitation without the mother first receiving substantial treatment. The children also submitted statements to the court that they did not wish to have visitation or counseling with their mother.

In May 2015, the court held a hearing acknowledging the report and issued a final ruling. Although no change in the mother’s condition is apparent from the record, the trial court entered an order on December 17, 2015, permitting the mother to resume visitation with her youngest son in the form of weekly therapeutic sessions after she completed eight weeks of counseling on her own “for the following two months.” The trial court order provided:

The mental health professional shall be provided the report of [the professional evaluator], and at the conclusion of the two months shall make certain recommendations as to any further treatment and other terms and conditions regarding mental health which shall be followed by [the mother]. Upon a good faith completion of eight weeks, and a report to this Court which evidences completion of this therapy and [the mother]’s progress, [the mother] shall be entitled to initiate visitation with the younger child ... by engaging a child psychologist to supervise and assist in weekly therapeutic sessions with [the younger child]. This shall continue until the child reaches the age of majority.

The court stated that it believed it to be in the “long-term best interest of the child” to attempt to repair the child’s relationship with the mother. The father contends, and the mother does not dispute, that on December 24, 2015 — just seven days after entry of the trial court’s final order — the mother’s therapist submitted a certificate of completion, though this document does not appear in the record before us. This appeal followed.

1. The father argues that the trial court erred by entering an impermissibly self-executing order that provides for an automatic change of visitation. We agree.

“Visitation privileges are, of course, part of custody.” Wrightson v. Wrightson, 266 Ga. 493, 496 (3) (467 SE2d 578) (1996) (citation and punctuation omitted).

Self-executing change of custody provisions allow for an “automatic” change in custody based on a future event without any additional judicial scrutiny. Our Supreme Court has held that “any self-executing change of custody provision that fails to give paramount import to the child’s best interests in a change of custody as between parents must be stricken as violative of Georgia public policy.”

Lester v. Boles, 335 Ga. App. 891, 892 (1) (782 SE2d 53) (2016) (punctuation omitted) (citing Dellinger v. Dellinger, 278 Ga. 732, 733 (1) (609 SE2d 331) (2004)). But not all self-executing provisions are invalid. Rather, we must closely examine the nature of any such provision in determining whether it fails “to give paramount import to the child’s best interests [.] ” Id.

In Weaver v. Jones, 260 Ga. 493 (396 SE2d 890) (1990), and Pearce v. Pearce, 244 Ga. 69 (257 SE2d 904) (1979), our Supreme Court upheld automatic custody change provisions that contemplated that an older child, upon reaching age 14, may choose the parent with whom the child wishes to reside. See Scott v. Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003) (discussing Weaver and Pearce). And in Lester, we upheld a self-executing provision that altered custody when the child began first grade, noting that the provision was not invalid because the change in custody was not conditional upon an event that may never occur and was “not an arbitrary change that may or may not affect the child’s best interests at some unknown date[.]” See Lester, 335 Ga. App. at 893 (1).

But other self-executing provisions that create an automatic change of custody based solely on a custodial parent’s relocation within the country or remarriage, or a counselor’s determination of readiness — without regard to the child’s best interests at the time of the change — have been rejected. See Johnson v. Johnson, 290 Ga. 359, 359-60 (721 SE2d 92) (2012) (reversing trial court judgment with direction that the trial court strike the self-executing provision of the decree that allowed termination of supervised overnight visits to occur based on a counselor’s determination of readiness); Dellinger, 278 Ga. at 734-36 (1) (reversing trial court judgment with direction that the trial court strike the self-executing provision of the decree that altered custody if the mother moved); Scott, 216 Ga. at 376 (“Remarriage and relocation directly affect a child but they do not automatically warrant a change in custody”).

It is the trial court’s responsibility to determine whether the evidence is such that a modification or suspension of custody/visitation privileges is warranted, and the responsibility for making that decision cannot be delegated to another, no matter the degree of the delegatee’s expertise or familiarity with the case.

Wrightson, 266 Ga. at 496 (3).

The question for this Court to resolve, then, is whether the self-executing provision challenged here is the sort prohibited under Georgia law. A review of the case law regarding prohibited self-executing provisions shows that they can generally lie summarized as having one of two critical flaws. First, self-executing provisions that rely on a third-party’s future exercise of discretion essentially delegate the trial court’s judgment to that third party See, e.g., Johnson, 290 Ga. at 359-60. And, second, self-executing provisions that execute at some uncertain date well into the future are not permitted because the trial court creating those provisions cannot know at the time of their creation what disposition at that future date would serve the best interests of the child; the passage of time (and thus, likelihood of changed circumstances) is just too great. See Dellinger, 278 Ga. at 735 (automatic change in visitation without any regard to the circumstances existing in the children’s lives at the time of the change is “utterly devoid of the flexibility necessary to adapt to the unique variables that arise in every case, variables that must be assessed in order to determine what serves the best interests and welfare of a child” (citation and punctuation omitted)).

The mother argues that the challenged provision here is akin to that examined in Lester because there appears to be a date determinative for the change in visitation — her completion of eight weeks of therapy. And she argues that the trial court considered the best interests of the child when it entered the order, as expressly acknowledged therein, noting that an attempt to repair the child’s relationship with the mother would be in the “long-term best interest of the child[.]” But as the mother points out in her appellate brief, “[t]he true potential vice in this sort of self-executing change, as Father and the decided cases envisions that evil, is delegation of judgment to another.” Indeed, we have instructed trial courts to strike such provisions in those cases in which the trial court has delegated its authority to determine the timing of custody transitions or modifications to a counselor. See Wrightson, 266 Ga. at 495-96 (3); Johnson, 290 Ga. at 359-60. That is essentially what has happened here.

Under the terms of the order at issue, the counselor is to “make certain recommendations as to any further treatment and other terms and conditions regarding mental health which shall be followed by [the mother]Upon a “good faith completion of eight weeks” of therapy, a report is to be made to the trial court (it is unclear by whom) evidencing completion of this therapy and the mother’s progress. Once these events have occurred, the mother is entitled to initiate visitation with the child in the form of weekly therapy sessions. Under the trial court’s order, this transition in custody is automatic, and although it is unclear precisely who has the ultimate responsibility for reviewing the report to determine whether it sufficiently evidences the mother’s “progress” and completion of the required therapy, it is clear that it is not the court. This is troubling for precisely the reason the father argues in his appeal — the mother may not actually have made “progress” in her therapy in the sense that the trial court intended, or she may not be complying with the counselor’s additional treatment recommendations or the rest of the court’s order. Indeed, the mother attempted to resume visitation almost immediately following entry of the order, despite not having complied with its instruction that she complete eight weeks of therapy “for the following two months.” This makes the event triggering the automatic change in visitation arbitrary, with “only a tangential connection” to the child’s best interests. Lester, 335 Ga. App. at 893 (1). Thus, the order lacks “the flexibility needed to adapt to the unique variables that must be assessed in order to determine what serves the best interests and welfare of a child.” Lester, 335 Ga. App. at 892-93 (1) (citation and punctuation omitted). For this reason, we find that this provision in the trial court’s order constitutes an abuse of discretion, and accordingly, we vacate the order and remand the case to the trial court to revisit the issue and provide a new order on the father’s motion consistent with this opinion.

Decided August 18, 2016.

Patricia A. Hoin, for appellant.

David A. Webster, Robert G. Wellon, for appellee.

2. Because of our holding in Division 1, we need not address the father’s other enumerations of error.

Judgment vacated and case remanded.

Phipps, P. J., and Dillard, J., concur.

       The consent order between the parties was entered in 2012, and the mother had not had visitation with the children since.

       The trial court acknowledged the older child turned 18 in May 2015.

       The father complains that the mother’s therapist who submitted the certificate of completion also served as her expert witness.

       The provision could also be interpreted as the trial court retaining jurisdiction to review the mother’s progress as reported to it and determine whether it is sufficient to trigger visitation. However, that interpretation is not available to us given the court’s designation of the order as “final,” because the trial court, in so designating its order, demonstrated its intent to divest itself of jurisdiction to do any further analysis of the mother’s compliance with its order.

       The mother argues that she was able to anticipate the amount of court-ordered therapy and completed it in advance, but points to nothing in the record supporting her argument.


text:
    A16A1327.
    FORBES v. SMITH.
    (790 SE2d 550)
   ANDREWS, Presiding Judge.

After Barbara Forbes sued Cynthia Smith for personal injury damages arising from an automobile accident, the trial court dismissed the suit with prejudice on the basis that it was filed after the expiration of the applicable statute of limitation. Forbes appeals, and, for the following reasons, we affirm.

Under OCGA § 9-3-33, actions for injuries to the person must be filed within a two-year period after the cause of action accrues. It is undisputed that Forbes filed her suit on September 15, 2015, more than two years after her personal injury cause of action accrued on the date of the July 5, 2013 automobile accident. Forbes contends her suit was timely because the two-year limitation period in OCGA § 9-3-33 was tolled by the provisions of OCGA § 9-3-99. Under OCGA § 9-3-99:

The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years.

Smith carried her burden of showing that the suit was filed more than two years after the cause of action accrued, so the burden shifted to Forbes to produce evidence showing that an issue existed regarding whether the limitation period was tolled. Miller v. Kitchens, 251 Ga. App. 225, 227 (a) (553 SE2d 300) (2001). Forbes points to evidence showing application of the tolling provisions of OCGA § 9-3-99: (1) that at the scene of the July 5, 2013 automobile accident, a police officer issued Smith a uniform traffic citation (“UTC”) for the alleged offense of failure to yield while turning left within an intersection in violation of OCGA § 40-6-71; (2) that she (Forbes) was the victim of an alleged crime — the misdemeanor traffic offense; and (3) that her suit against Smith arose out of the facts and circumstances relating to the commission of the alleged misdemeanor traffic offense.

The facts also show that the UTC issued by the officer to Smith on July 5, 2013, commenced prosecution on the alleged misdemeanor traffic offense. Under OCGA § 40-13-1, the UTC “shall serve as the citation, summons, accusation, or other instrument of prosecution of the offense or offenses for which the accused is charged.” Similarly, OCGA § 17-7-71 (b) provides: “In all misdemeanor cases arising out of violations of the laws of this state, relating to ... the operation and licensing of motor vehicles and operators . . . the defendant may be tried upon the uniform traffic citation and complaint provided for in Article 1 of Chapter 13 of Title 40.” Where the UTC serves as the instrument of prosecution, “[t]he citation and complaint summons the person accused of the traffic offense to appear in court on a specific date to answer the charges.” State v. Gerbert, 267 Ga. 169, 170 (475 SE2d 621) (1996). The UTC issued to Smith commenced the prosecution and summoned her to the Recorders Court of DeKalb County on August 6, 2013. Chism v. State, 295 Ga. App. 776, 777 (1) (674 SE2d 328) (2009). On August 6, 2013, the Recorders Court provided Smith with the following notice:

While you were issued a citation to appear today, the citation [charging you with violation of OCGA § 40-6-71 on July 5, 2013] was not filed with the court by the issuing officer in advance of your court appearance. You are free to go and are not in any danger of an arrest warrant issuing for your arrest on this citation. Please be advised, however[,] that under O.C.G.A. § 17-3-1 (d), the officer may re-issue a citation for these charges within two years of the date of the offense.... If a new citation is issued on these charges within that timeframe, it is your responsibility to respond in accordance with the citation issued.

The reference to OCGA § 17-3-1 (d) in the notice refers to former subsection (d) of the statute now codified as OCGA § 17-3-1 (e), which provides that: “Prosecution for misdemeanors shall be commenced within two years after the commission of the crime.”

On these facts, we find that the Recorders Court notice shows: (1) that the prosecution that was commenced on July 5, 2013, under the UTC issued by the officer was terminated without prejudice by the court on August 6, 2013, and (2) that pursuant to OCGA § 17-3-1 (e) the prosecution could have been recommenced if a new UTC was issued within two years after July 5, 2013. Accordingly, under OCGA § 9-3-99, the limitation period in OCGA § 9-3-33 was tolled from the date of the commission of the alleged offense on July 5, 2013, until the prosecution under the UTC was “otherwise terminated” by the court on August 6, 2013. See Valades v. Uslu, 301 Ga. App. 885, 888-889 (1) (689 SE2d 338) (2009) (OCGA § 9-3-99 tolls statute of limitation “while the prosecution of the defendant is pending.”), overruled on other grounds, Harrison v. McAfee, 338 Ga. App. 393 (788 SE2d 872) (2016). There is no evidence that any prosecution was ever recommenced under anew UTC. See OCGA § 16-1-3 (14). It follows that the two-year limitation period under OCGA § 9-3-33 commenced running on August 7, 2013, and expired before Forbes filed suit on September 15, 2015. We find no merit to Forbes’s claim that OCGA § 9-3-99 tolled the limitation period for the suit until July 5, 2015, the expiration date for prosecution of the alleged offense under OCGA § 17-3-1 (e).

Judgment affirmed.

Doyle, C. J., and Ray, J., concur.

Decided August 18, 2016.

Leon & Kim, Brian G. Kim, Beverly A. Lucas, for appellant.

Cruser & Mitchell, J. Robb Cruser, R. Russell Grant II, Timothy L. Mitchell, for appellee.

       Under OCGA § 9-3-99, an “alleged crime” includes an alleged misdemeanor violation of one of the Uniform Rules of the Road, including OCGA § 40-6-71. OCGA §§ 16-1-3 (9); 40-6-1 (a); Beneke v. Parker, 285 Ga. 733, 734 (684 SE2d 243) (2009).


author: PHIPPS, Presiding Judge.

text:
    A16A1243.
    SADLER v. RIGSBY.
    (790 SE2d 639)
   PHIPPS, Presiding Judge.

Benjamin Ryan Sadler petitioned the trial court to modify the custody and support order regarding his son. Following a hearing, the trial court dismissed Sadler’s petition. Sadler appeals from the denial of his motion for new trial. He contends, inter alia, that the trial court erred in denying his request that it issue findings of fact and conclusions of law. We agree. Accordingly, we vacate the judgment and remand the case for further proceedings consistent with this opinion.

Viewing the evidence in the light most favorable to the trial court’s decision, it shows that Sadler and Savannah Shawn Rigsby had a son born in 2009. Sadler and Rigsby were never married, and Sadler legitimated the child in 2010. In 2012, the Haralson County Superior Court issued a final consent order and parenting plan, awarding Rigsby primary physical custody and ordering Sadler to pay child support. Sadler filed the instant petition in October 2013 in the Superior Court of Carroll County seeking primary physical custody.

At the close of the hearing on Sadler’s petition for modification, Rigsby made an oral motion to dismiss the petition on the basis that Sadler had not shown a substantial change in circumstances warranting modification of custody or child support. The trial court stated that it would grant the motion. Sadler then requested that the trial court issue findings of fact. The trial court denied the request as untimely, stating, “You’re supposed to request findings of fact and conclusions of law at the start of the hearing.” In its final order, the trial court made no findings of fact or conclusions of law.

1. Sadler contends that the trial court erred in refusing his request, pursuant to OCGA § 9-11-52, for findings of fact and conclusions of law.

The interpretation of a statute is a question of law, which we review de novo. OCGA § 9-11-52, which is part of the Civil Practice Act, provides:

(a) In ruling on interlocutory injunctions and in all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, [] find the facts specially and shall state separately its conclusions of law. . . .
(b) This Code section shall not apply to actions involving uncontested divorce, alimony, and custody of minors, nor to motions except as provided in subsection (b) of Code Section 9-11-41 [governing involuntary dismissals].

“The Supreme Court of Georgia has held that, for the purposes of statutory construction, the word ‘shall’is to be generally construed as a mandatory directive.”

Sadler undoubtedly made his request for findings of fact and conclusions of law prior to the trial court’s ruling. Thus his request was timely pursuant to OCGA § 9-11-52.

Rigsby, however, argues that, under the plain language of the statute, OCGA § 9-11-52 does not apply to any custody cases. But Rigsby’s argument is not persuasive. In Grantham v. Grantham, the Supreme Court of Georgia held that the trial court erred in failing to issue findings of fact and conclusions of law pursuant to OCGA § 9-11-52 in a contested custody case.

Rigsby argues that findings of fact are available in custody cases pursuant only to OCGA § 19-9-3 (a) (8) and that Sadler was not entitled to such findings because he failed to request findings on or before the close of evidence. After Grantham was decided, OCGA § 19-9-3 was amended to add paragraph (a) (8). OCGA § 19-9-3 (a) (8) provides:

If requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge’s decision in making an award of custody . .. Such order shall set forth in detail why the court awarded custody in the manner set forth in the order and, if joint legal custody is awarded, a manner in which final decision making on matters affecting the child’s education, health, extracurricular activities, religion, and any other important matter shall be decided. . . .

However, following the enactment of OCGA § 19-9-3 (a) (8), Georgia courts have continued to apply OCGA § 9-11-52 to contested family law matters, including child custody cases.

“[Wjhere, as in this proceeding, a party makes a timely request pursuant to OCGA § 9-11-52 (a), the court shall upon the request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” The trial court’s failure to do so here was erroneous. “Findings of fact and conclusions of law enable the parties to specify the errors the trial court purportedly made, and enable the appellate court to review the judgment adequately and promptly.”

Because the trial court erred in denying Sadler’s timely request pursuant to OCGA § 9-11-52 to issue findings of fact and conclusions of law, we vacate the trial court’s judgment dismissing Sadler’s motion for modification of custody and support and remand the case with direction that the trial court make findings of fact and conclusions of law.

Decided August 19, 2016.

Diane M. Sternlieb, for appellant.

The Duke Law Firm, Desiree D. Duke, Timothy A. Heath, for appellee.

2. Sadler also argues that the trial court erred in failing to consider the report or testimony of the guardian ad litem prior to dismissing his petition for modification and in refusing to modify his child support obligation. Given our disposition of this case, we do not reach these arguments.

Judgment vacated and case remanded with direction.

Dillard and Peterson, JJ., concur.

        See Driver v. Sene, 327 Ga. App. 275, 276 (758 SE2d 613) (2014) (“When considering the appeal of a child custody decision, we view the evidence in the light most favorable to the trial court’s decision.”) (citation omitted).

       See Expedia, Inc. v. City of Columbus, 285 Ga. 684, 689 (4) (681 SE2d 122) (2009).

       See Payson v. Payson, 274 Ga. 231, 234 (2) (552 SE2d 839) (2001) (for purposes of OCGA § 9-11-52, a trial court’s “ruling” is synonymous with its judgment, not its oral pronouncement).

       Under the former law, “it was mandatory in a contested child custody case for the trial judge to include findings of fact in its final order.” Bonds v. Bonds, 241 Ga. App. 378 (1) (527 SE2d 215) (1999). See also Githens v. Githens, 234 Ga. 715 (2) (217 SE2d 291) (1975) (interpreting former Code Ann. § 81A-152 (a)). “In 1987, however, the legislature amended OCGA § 9-11-52 (a). Under the amended statute, entry of findings of fact became mandatory only upon request by a party.” Bonds, supra (citations omitted).

         Warren v. Smith, 336 Ga. App. 342, 344 (785 SE2d 25) (2016) (citations omitted).

       See Payson, supra at 235 (2).

       269 Ga. 413, 414 (1) (499 SE2d 67) (1998).

       See Ga. L. 2007, p. 565, § 5. Grantham, supra, was decided in 1998.

        See Arthur v. Arthur, 293 Ga. 63, 64 (1) n. 1 (743 SE2d 420) (2013) (noting that husband in divorce and custody case had requested findings of fact under OCGA § 9-11-52, but not OCGA § 19-9-3 (a) (8)); Warren, supra at 344 (noting that findings offact and conclusions oflaw are mandatory upon a timely request of a party in a custody case under both OCGA §§ 9-11-52 and 19-9-3 (a) (8)). See generally OCGA § 19-5-8 (“The same rules of pleading and practice applicable to ordinary civil actions shall apply to actions for divorce, alimony, and custody of minor children, except as otherwise specifically provided in this chapter [regarding divorce proceedings].”).

        Arthur, supra at 65 (2) (a) (punctuation omitted).

       See id. at 65-66 (2) (a) (trial court erred in failing to issue findings of fact and conclusions of law regarding the equitable division of marital property). See also Grantham, supra; Warren, supra.

        Grantham, supra (citation omitted).

       See id. (vacating judgment and remanding custody case for trial court to make findings offact and conclusions oflaw). See also Arthur, supra; Payson, supra; Warren, supra.


author: Rickman, Judge.

text:
    A16A1221.
    INGRAM v. THE STATE.
    (790 SE2d 641)
   Rickman, Judge.

Andreco Rodreiques Ingram appeals the trial court’s denial of his motion to withdraw his guilty plea. He contends that his plea counsel was ineffective for erroneously informing him that he was subject to treatment as a recidivist. For reasons that follow, we reverse.

Ingram was indicted for three counts of violating the Georgia Street Gang Terrorism and Prevention Act, trafficking in cocaine, and possession of a firearm by a convicted felon. The State filed a notice of intent to offer evidence in aggravation of punishment and a recidivist notice, which provided that Ingram faced “a sentence of 75 years to serve with no parole.” In exchange for Ingram agreeing to enter a nonnegotiated plea to three counts of the indictment, Ingram’s counsel got the State to agree to remove the recidivism component and to cap its recommended sentence at 40 years, to serve 20. Ingram’s counsel asked for a sentence of twenty years, to serve ten. The trial court sentenced Ingram to 35 years, 20 in confinement, and the remainder on probation.

Ingram filed a motion to withdraw his guilty plea, contending that the plea was not knowingly and voluntarily made, the plea was not supported by a factual basis, and his plea counsel rendered ineffective assistance. At the hearing on his motion to withdraw, Ingram’s new counsel pointed out that one of the convictions the State had used in its recidivist notice was not actually a conviction because Ingram was given first offender treatment. Counsel argued that Ingram’s decision to enter the plea was based primarily on his desire to avoid recidivist punishment and that Ingram relied heavily on his counsel’s inaccurate advice that he would be subject to recidivist treatment when deciding whether to enter the plea. In addition, Ingram testified that the most important factor for him in deciding to enter the plea was avoiding the possibility of a 75-year recidivist sentence. The trial court denied Ingram’s motion, concluding that the plea was entered “intelligently and voluntarily,” and that Ingram had failed to show that his “counsel’s representation fell below an objective standard of reasonableness” or that absent “any alleged errors by counsel, [Ingram] would not have pleaded guilty and would have insisted on going to trial.”

On appeal, Ingram contends that his plea counsel performed deficiently when counsel erroneously informed him that he was subject to treatment as a recidivist and that this deficient performance prejudiced him by inducing him to waive his right to trial and enter a guilty plea. The State concedes that Ingram’s counsel was ineffective and likely prejudiced him and does not contest Ingram’s appeal.

“[W]hen a criminal defendant seeks to withdraw a guilty plea on the ground of ineffective assistance of counsel, the ineffective assistance claim must be evaluated under the two-prong test set forth in Strickland v. Washington,” 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). Alexander v. State, 297 Ga. 59, 64 (772 SE2d 655) (2015). To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance “fell below an objective standard of reasonableness and that there is a reasonable probability that, in the absence of his attorney’s errors, he would not have pled guilty and would have insisted on going to trial.” (Footnote omitted.) Crabbe v. State, 248 Ga. App. 314, 315 (546 SE2d 65) (2001).

Ingram’s plea counsel advised Ingram of the potential range of punishment he might face and the worst case scenario, including the fact that he was facing a sentence of up to 75 years without parole. Plea counsel testified that, while attempting to negotiate a plea for Ingram, “[t]he most important factor for me in the equation was to get rid of the recidivism for good, to make sure it didn’t come into play.” After obtaining some concessions from the State, plea counsel advised Ingram that it was in his best interest to take the plea because he would be subject to a higher potential punishment without the sentence cap and “was most likely going to get recidivism.” Ingram testified that avoiding the possibility of a 75-year recidivist sentence was the most important factor in his decision-making process. Plea counsel testified that he would not have recommended that Ingram agree to a nonnegotiated plea if the State had not taken recidivist punishment off the table.

Pursuant to OCGA § 17-10-7 (c),

any person who, after having been convicted under the laws of this state for three felonies . . . , commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

The State listed three prior felony “convictions” in its recidivist notice, but Ingram pled guilty and obtained first offender treatment for one of the listed offenses. And “[a] first offender’s guilty plea does not constitute a ‘conviction’ as that term is defined in the Criminal Code of Georgia.” (Citations and punctuation omitted.) Davis v. State, 273 Ga. 14, 15 (537 SE2d 663) (2000). Thus, Ingram would not have been subject to recidivist treatment, and his plea counsel’s advice in this regard was erroneous.

“Affirmatively misinforming a client about parole eligibility falls outside the permitted range of professional competence.” (Citations omitted.) Tillman v. Gee, 284 Ga. 416, 418 (667 SE2d 600) (2008); see also Alexander, 297 Ga. at 65 (“When it comes to parole eligibility,.. . an attorney’s failure to inform his or her client that he or she would be ineligible for parole as a recidivist for the entirety of a lengthy prison sentence is constitutionally deficient performance.”); Crabbe, 248 Ga. App. at 315-316 (misinforming defendant that he would be eligible for parole when defense strategy in negotiating plea was to ensure such eligibility satisfies first prong of Strickland v. Washing ton test). Thus, plea counsel’s affirmative misinformation about parole eligibility satisfied the first prong of the Strickland v. Washington test.

Decided August 23, 2016.

Daniels & Cauble, Charles H. Cauble, for appellant.

Peter J. Skandalakis, District Attorney, Antoinette N. Wood, Assistant District Attorney, for appellee.

Under the prejudice prong, Ingram must demonstrate that there is a reasonable probability that, absent his counsel’s erroneous advice, he would not have entered a guilty plea and would have insisted on going to trial. See Alexander, 297 Ga. at 66. The undisputed evidence shows that the defense strategy was based on the removal of the recidivist component — it was the goal of Ingram’s counsel’s discussions with the State and the basis for Ingram’s willingness to enter a nonnegotiated plea. Under these circumstances, as the State concedes, there is a reasonable probability that, absent counsel’s erroneous advice that the plea would be in Ingram’s best interest because he would otherwise be subject to recidivist treatment, Ingram would not have entered the guilty plea. See Tillman, 284 Ga. at 419-420 (evidence showed that defendant would not have pled guilty had he known that his attorney’s representations regarding parole were wholly inaccurate); Clue v. State, 273 Ga. App. 672, 674 (615 SE2d 800) (2005) (where State conceded that, but for trial counsel’s error, defendant would not have pled guilty, second prong of the ineffective assistance test was met). Thus, we conclude that Ingram received ineffective assistance of counsel and that the trial court therefore erred in denying his motion to withdraw his guilty plea.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

       Two of the gang-related charges were nol prossed.

       In Georgia, “the district attorney represents the people of the state in prosecuting individuals who have been charged with violating our state’s criminal laws.” (Citation and punctuation omitted.) Mowoe v. State, 328 Ga. App. 536, 540 (2) (a) (759 SE2d 663) (2014). A public prosecutor’s responsibility “differs from that of the usual advocate; his duty is to seek justice, not merely to convict.” (Citations and punctuation omitted.) Carr v. State, 267 Ga. 701, 712 (10) (482 SE2d 314) (1997). Moreover, “it is the duty of a prosecuting attorney to see that justice is done and nothing more.” (Citations and punctuation omitted.) Id. Accordingly, we commend the State for forthrightly conceding error in this case.

       Ingram testified that he completed his first offender sentence, and nothing in the record indicates that the trial court ever entered an adjudication of guilt as to this offense.


text:
    A14A2119.
    A14A2120.
    STATE OF GEORGIA v. SUN STATES INSURANCE GROUP, INC. REGULATORY TECHNOLOGIES, INC. v. STATE OF GEORGIA.
    (790 SE2d 644)
   PHIPPS, Presiding Judge.

In these two direct appeals, the State of Georgia and its agent, Regulatory Technologies, Inc. (“Reg Tech”), challenged the denial of their motions to dismiss on sovereign immunity grounds. We affirmed in part and reversed in part, concluding that the trial court erred in finding that sovereign immunity was waived by the Insurers Rehabilitation and Liquidation Act. On further appeal, the Supreme Court of Georgia vacated our judgment. Noting that the collateral order doctrine does not permit a direct appeal from the denial of a motion to dismiss based upon governmental immunity, the Supreme Court found that we lack jurisdiction to consider these direct appeals. Accordingly, because the State of Georgia and Reg Tech failed to follow the required appellate procedure, their appeals are hereby dismissed for lack of jurisdiction.

Decided August 30, 2016.

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, Daniel S. Walsh, Jeffrey W. Stump, Senior Assistant Attorneys General, for State of Georgia.

Barnes & Thornburg, Thomas J. Gallo, for Sun States Insurance Group.

Robbins Ross Alloy Belinfante Littlefield, Richard L. Robbins, Alexa R. Ross, Alexander F. Den ton, for Regulatory Technologies.

Appeals dismissed.

Ellington, P. J., and McMillian, J., concur.

       OCGA § 33-37-1 et seq.; State of Ga. v. Sun States Ins. Group, 332 Ga. App. 197, 202 (1) (770 SE2d 43) (2015).

        State of Ga. v. Sun States Ins. Group, 299 Ga. 489 (788 SE2d 346) (2016) (citing Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016)).


author: Ellington, Presiding Judge. DILLARD, Judge,

text:
    A16A0705.
    COLUMBIA CASUALTY COMPANY v. PLANTATION PIPE LINE COMPANY.
    (790 SE2d 645)
   Ellington, Presiding Judge.

Plantation Pipe Line Company filed this action in the Superior Court of Fulton County against five of its excess liability insurers, including Columbia Casualty Company, seeking relief including a declaratory judgment as to each insurer’s respective share of Plantation’s losses arising from a pipeline leak. See Plantation Pipe Line Co. v. Stonewall Ins. Co., 335 Ga. App. 302 (780 SE2d 501) (2015), cert. denied April 26, 2016 (appeal by Plantation from order granting summary judgment in favor of another of Plantation’s excess liability insurers, Stonewall Insurance Company). Plantation and Columbia filed cross-motions for summary judgment. The trial court granted Plantation’s motion and denied Columbia’s cross-motion. Columbia appeals both rulings, contending that the trial court erred in allocating all of Plantation’s losses to the policies that were in place at the time of the fuel leak, rather than allocating Plantation’s losses pro rata among the multiple, successive policies that were issued to Plantation over the thirty-year period during which the environmental contamination continued to accrue. When Plantation’s losses are properly allocated, Columbia contends, the losses attributable to the policy period of the Columbia policy as a matter of law did not reach the attachment point of the policy, which is a prerequisite to coverage under the policy For the reasons explained below, we affirm.

The record shows the following relevant undisputed facts. On April 2, 1976, Plantation employees discovered that turbine fuel had leaked from an underground Plantation pipeline located in Cabarrus County, North Carolina. Plantation Pipe Line Co. v. Stonewall Ins. Co., 335 Ga. App. at 303. Within 24 hours, Plantation repaired the pipeline and cleaned up the leak. Id. Without resorting to insurance, it compensated the only affected landowner $50. Id. More than 30 years later, on April 3, 2007, one of Plantation’s workers found contaminated soil during maintenance of Plantation’s pipeline, and the contamination was traced to the 1976 leak.

Plantation filed this action in 2012, seeking recovery for amounts it has spent to settle third-party claims, amounts it has expended for remediation, and projected costs to complete remediation. A Plantation executive estimates that Plantation’s costs through 2030 will total between $5.6 million and $8.6 million.

The record shows that, at the time the initial fuel leak occurred in Cabarrus County in April 1976, Plantation had $1,000,000 in primary coverage under a comprehensive general liability (“CGL”) policy issued by American Reinsurance Company (subject to a self-insured retention of $100,000) and had excess coverage, including $1 million under an umbrella policy issued by Lexington Insurance Company. Plantation Pipe Line Co. v. Stonewall Ins. Co., 335 Ga. App. at 302. In late 1975, Columbia issued an “Excess Third Party Liability Policy” to Plantation for the period of January 24, 1976 through November 30, 1976. Unless otherwise provided, the Columbia excess policy incorporated the terms of the Lexington umbrella policy. In the Insuring Agreements in the Lexington umbrella policy, Lexington agreed

[t]o pay on behalf of [Plantation] the ultimate net loss in excess of the underlying insurance [(the self-insured retention and the primary CGL policy issued by American)], which [Plantation] shall become legally obligated to pay as damages by reason of the liability imposed upon [Plantation] by law . . . because of. . . [p]roperty [d]amage . . . caused by or arising out of an occurrence.

In the Insuring Agreements in the Columbia excess policy, Columbia agreed to indemnify Plantation for loss in excess of the limits of liability of the Lexington policy, which was the “underlying insurance.” The Insuring Agreements in the Columbia policy further provide as follows:

This policy applies to injury or destruction taking place during this policy period, provided that when the immediate underlying policy insures occurrences taking place during its policy period, instead of injury or destruction taking place during its policy period, then this policy likewise applies to occurrences taking place during this policy period[,] and “occurrences” is substituted for “injury or destruction” in Part III of this policy [regarding reduction of the aggregate].

Because the Lexington policy “insures occurrences taking place during its policy period,” therefore, the Columbia policy “likewise applies to occurrences taking place during [the] policy period[.]” The Lexington policy, and therefore the Columbia policy, covers “[p]roperty [d]am-age ... caused by or arising out of an occurrence.” As the definitions for “property damage” and “occurrence” set forth in the Lexington policy are specifically incorporated in the Columbia policy,

[w]ith respect to ... [p]roperty [d]amage[,] the term “[occurrence” means an event, including continuous or repeated exposure to conditions, which result in . .. [p]roperty [d]am-age neither expected nor intended from the standpoint of the insured. All such exposure to substantially the same general conditions shall be deemed one occurrence.

The declarations page shows that the Columbia policy of excess umbrella liability was in the amount of “$500,000 CSL [Combined Single Limit] per occurrence/aggregate being 8% [sic] of $4,000,000 CSL per occurrence/aggregate excess of $1,000,000 CSL per occurrence/ aggregate.” It is undisputed that the attachment point of the Columbia excess policy was $2 million.

1. Columbia contends that it is entitled to judgment as a matter of law that the policy it issued to Plantation is not triggered by the claims at issue in this case.

Columbia points to evidence that the environmental contamination caused by the occurrence at issue, the April 1976 fuel leak, continued to unfold (and even to this day continues to unfold), as the quantity of pollutant that Plantation failed to clean up in 1976 migrated downward through the soil, reached flowing groundwater, and formed a plume in the water table, where it contaminated clean water that made contact with the contaminated water, and that such contamination of previously clean water will continue to occur until the remediation process is complete. Columbia argues that this is typical of environmental contamination cases because environmental contamination by its nature occurs over time, gradually or progressively causing personal injury or property damage, which may be unknown to the injured parties for years.

Columbia points to evidence that, from 1976 through 2005, several different insurers issued liability policies to Plantation. Over time, the overall coverage profile varied as the limits of the different, policies, the scheme of the different layers of coverage (self-insured retention, primary coverage, umbrella coverage, excess coverage, etc.), and areas of overlapping coverage all varied from year to year. Columbia argues that it is typical of environmental contamination cases that, because of the progressive nature of environmental contamination, the resulting personal injury or property damage overlaps multiple successive insurance policy periods of the insured’s liability coverage. And Columbia contends that, in this case, multiple successive insurance policies were potentially triggered during later policy periods by the unfolding environmental damage that originated with the 1976 pipeline leak and that Plantation’s losses from remediation costs and third-party claims should be allocated among those policies by the Court.

Columbia argues that the legal issue of the appropriate method of allocation is one of first impression in Georgia. Columbia contends:

[T]he legal issue this Court must resolve is the appropriate trigger theory to apply to a claim involving progressive, latent “property damage” that took place over a three decade long period so that it can determine which policies are applicable to the damages at issue, as well as the extent of coverage owed, and the sequence in which the policies should apply.

Columbia urges the Court to adopt the so-called “continuous trigger theory.” Columbia argues that Plantation’s total financial loss from the latent, continuous, and progressive property damage that took place over three decades should be allocated pro rata among each successive policy period from 1976 to 2007, when the contamination was discovered and became “manifest.” When this is done, Columbia argues, the amount of loss properly allocated to the policy period of the policy it issued to Plantation is far less than the $2 million attachment point for the excess coverage it provides. As a result, Columbia contends, its policy is not triggered as a matter of law under the continuous trigger theory. Moreover, Columbia argues, the result would be the same if the Court were to adopt in the alternative the so-called “injury in fact” trigger theory.

Even if this Court were inclined to adopt the continuous trigger theory, application of this theory is premised on the assumption that the Columbia policy contains language that limits coverage to property damage that takes place during the policy period. But, unlike more contemporary standard CGL policies, the Columbia policy and the provisions of the Lexington policy that it expressly incorporates do not provide that the policy applies only to property damage that occurs during the policy period. As quoted extensively above, the insuring agreement in the Columbia policy provides that the policy applies to injury taking place during the policy period unless, instead of insuring injury taking place during the policy period, the Lexington policy insures occurrences taking place during the policy period, which it does. In this case, then, the Columbia policy expressly “applies to occurrences taking place during [the] policy period.” Columbia could have drafted the substitution clause to provide that, if the underlying policy insures occurrences taking place during the policy period, then the Columbia policy applies to occurrences taking place during the policy period to the extent of injury taking place during the policy period. It did not do so. Therefore, contrary to Columbia’s assertion, this case does not present us with the issue of how to allocate this type of loss among multiple, successive policies that each cover property damage that occurs during the policy’s policy period. Instead, we are presented with a policy that by its plain terms covers property damage caused by an occurrence, provided the occurrence takes place during the policy period and provided the insured’s loss exceeds the attachment point of the policy And it is undisputed that an occurrence took place during Columbia’s policy period (the fuel leak in April 1976), that property damage occurred as a result of the occurrence, and that Plantation’s losses have exceeded the $2 million attachment point of the policy’s excess coverage. Columbia’s argument that its policy was not triggered fails. The trial court did not err in denying Columbia’s motion for summary judgment.

2. Columbia contends that the trial court erred in granting Plantation’s motion for summary judgment. Specifically, Columbia argues that “when the continuous trigger and/or injury-in-fact theories of allocation are applied to this case” its policy is not triggered as a matter of law. As explained in Division 1, supra, this argument fails because the Columbia policy does not contain language that limits coverage to property damage that takes place during the policy period, which underpins Columbia’s allocation argument. In a related vein, Columbia argues that Plantation failed to identify any evidence that more than $2 million worth of property damage occurred during the coverage period for the Columbia policy, again restating its argument that its policy was not triggered. This argument likewise fails for the reasons already explained above.

In addition, Columbia contends that Plantation’s reliance on the so-called “known loss” doctrine is misplaced because the doctrine is not the law of Georgia and because the doctrine is inapplicable, given the fact that “Plantation judicially admitted it did not know petroleum product and contaminants remained subsurface at the Site after it repaired the leak in April, 1976.” It may be reasonable to argue that a liability policy issued by an insurer after an insured becomes aware of an occurrence should not provide coverage for losses arising from the occurrence. But the issue whether some hypothetical insurer other than Columbia could successfully assert a known loss defense is not before us. Accordingly, this argument presents no basis for reversing the trial court’s order granting Plantation’s motion for summary judgment.

Judgment affirmed.

McFadden, J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As a result, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

Decided August 31, 2016.

Wesley Holladay, Nanette L. Wesley, for appellant.

Fellows LaBriola, Shattuck Ely, for appellee.

       Summary judgment is proper “. . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c).
      Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.
      (Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).
      When, as in this case, the parties file cross-motions for summary judgment, “each party must show that there is no genuine issue of material fact regarding the resolution of the essential points of inquiry and that each, respectively, is entitled to summary judgment; either party, to prevail by summary judgment, must bear its burden of proof.”
      (Citation and punctuation omitted.) Plantation Pipe Line Co. v. Stonewall Ins. Co., 335 Ga. App. at 302.

       The Columbia policy provides:
      The provisions of the immediate underlying policy are incorporated as a part of this policy except for any obligation to investigate and defend and pay for costs and expenses incident to the same, the amount of the limits of liability, any “other insurance” provision and any other provisions therein which are inconsistent with the provisions of this policy.
      The Columbia policy defines the “Immediate Underlying Policy” as “the policy of the underlying insurance which provides the layer of coverage, whether primary or excess, immediately preceding the layer of coverage provided by this policy.” It is undisputed that the Lexington policy alone met this definition.

       The Columbia policy defines the “Underlying Insurance” as “the insurance policies listed in item 3 in the declarations!.]” The Lexington policy was listed in item 3.

       It is undisputed that $500,000 represents 12.5 percent, not 8 percent, of $4,000,000, the total in excess coverage provided by Columbia and four other carriers.

       See J. Stephen Berry et al., Ga. Property & Liability Insurance Law, § 8:2 (updated August 2016) (explaining that excess liability policies are typically triggered only by the exhaustion of all underlying limits and, therefore, liability of an excess insurer generally will “attach” only when any underlying policies are exhausted).

       Columbia does not dispute that the cost to Plantation to perform remediation of the contamination is “property damage” under the policy, that is, money that Plantation is legally obligated to pay as damages by reason of liability imposed by law because of property damage causedby or arising out of the 1976 pipeline leak. See Rebecca M. Bratspies, “Splitting the Baby: Apportioning Environmental Liability Among Triggered Insurance Policies,” 1999 BYU L. Rev. 1215, 1223-1224 (I) (A) (1) (1999) (“[C]ourts have typically found contamination of the environment to fall within the ambit of [CGL policies’] property damage clause . Similarly, most courts conclude that any monies a [potentially responsible party] pays to comply with government orders under [the federal Comprehensive Environmental Responsibility, Compensation and Liability Act] constitute property damages covered under CGL policies. This holds true even when the government orders cleanup of the [potentially responsible party’s] own property.”) (footnotes omitted).

       According to one commentator, strategies for apportioning liability among multiple insurance policies for losses from environmental contamination can all be divided into two theoretical frameworks: horizontal allocation or vertical allocation. See Rebecca M. Bratspies, “Splitting the Baby: Apportioning Environmental Liability Among Triggered Insurance Policies,” 1999 BYU L. Rev. at 1231 (I) (B). In horizontal allocation, including “continuous trigger” allocation, liability is assigned along a horizontal time axis to all policy periods on the risk over the time period of continuing environmental contamination; in vertical allocation, liability is assigned along a vertical coverage axis to all insurers within a selected policy period, which is not necessarily the policy period in which an event like a fuel spill occurred. Id. at 1231, 1233-1234, 1241, 1246-1247. See, e.g., Towns v. Northern Security Ins. Co., 964 A2d 1150, 1163-1165 (III) (Pars. 25-31) (Vt. 2008) (The trial court properly applied a continuous-trigger test to determine whether an injury-producing occurrence gave rise to coverage under a policy in a case involving long-term environmental damage that occurred continuously from the date of exposure or initial injury through successive policy periods even though the damage was not manifested until after the policy had expired.).
      With a continuous trigger, a long-tail injury is deemed to have “occurred” at each and every point of time at which there was contributing contamination. Essentially, the courts create a rebuttable presumption that one injury or occurrence happened every year from the date the gradual injury began to the date of the claim. As a result, every insurance policy in effect during the course of the environmental injury is potentially liable on the claim. Acontinuous trigger has the effect of maximizing coverage because property damage that is continuous throughout successive policy periods will implicate all policies in effect during those periods.
      Rebecca M. Bratspies, “Splitting the Baby: Apportioning Environmental Liability Among Triggered Insurance Policies,” 1999 BYU L. Rev. at 1230-1231 (I) (B). We note that the Court of Appeals for the Eleventh Circuit certified to the Supreme Court of Georgia a question regarding the trigger of coverage in cases involving pollution. Boardman Petroleum v. Federated Mut. Ins. Co., 269 Ga. 326 (498 SE2d 492) (1998). The Supreme Court decided the case on other grounds, leaving the trigger-of-coverage question unresolved.

       Specifically, Columbia avers that successive policies were issued to Plantation “from January 1, 1976 through April 30, 2005, a period of twenty-nine (29) years” and argues that
      [t]o reasonably allocate the amount of property damage attributable to these successive policies this Court should employ a pro rata time on the risk formula; i.e., divide $8.6 million . . . cost to remediate the site by the twenty-nine (29) years of successive policy periods. This formula results in property damage of $296,551.72 being allocated to each successive policy, starting with Columbia’s policy period — clearly, a loss that will not trigger this excess Policy.
      As evidence that there are 29 years of successive policy periods among which the loss can be allocated, Columbia points to the affidavit of a long-time employee of Risk International Services, Inc. (“RIS”), a company that was hired to reconstruct Plantation’s insurance coverage for the period 1950 to 2005, and to a chart prepared by RIS showing the insurers and layers of coverage for each year. See Plantation Pipe Line Co. v. Stonewall Ins. Co., 335 Ga. App. at 304.

        Although it is not determinative of our decision for the reasons explained below, we note that Columbia contends that it is not required to introduce the other allegedly triggered policies to prevail on its “continuous trigger” argument. Even if we were to hold that it is appropriate to employ any of the various strategies to allocate a loss among triggered policies, as Columbia asks us to do, however, the specific provisions of the various policies would be relevant. For example, by its terms, any policy containing an absolute pollution exclusion would not be triggered by the sort of environmental contamination injury at issue here. See Rebecca M. Bratspies, “Splitting the Baby: Apportioning Environmental Liability Among Triggered Insurance Policies,” 1999 BYUL. Rev. at 1225-1226 (I) (A) (1), 1259, 1262 (IV) (B) (In 1986, standard CGL policies began including an absolute pollution exclusion, with the result that after that point an insured who could not or did not purchase pollution coverage in addition to its CGL policy would be considered uninsured or self-insured for such claims.). Columbia’s allocation of Plantation’s projected loss of up to $8.6 million across 29 years of successive policies unaccountably assumes that none of the other policies contained an absolute pollution exclusion.

       See Rebecca M. Bratspies, “Splitting the Baby: Apportioning Environmental Liability Among Triggered Insurance Policies,” 1999 BYU L. Rev. at 1238-1239 (II) (A) (3) (According to this commentator, one weakness of horizontal allocation strategies, like the continuous trigger theory, is that they implicitly read a pro rata allocation clause into the CGL policies, contrary to the general rule that pro rata clauses, which serve to limit an insurer’s indemnity obligation to an insured, are typically considered exclusionary provisions and, as such, should not be imputed into an insurance contract.).

       In a recent Supreme Court of Georgia decision, the Court noted that, in a standard CGL policy, the insurer now expressly
      promise[s] to pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies. The [standard] policy clarifies that this insurance applies to bodily injury andproperty damage only if: (1) [t]he bodily injury or property damage is caused by an occurrence that takes place in the coverage territory; and (2) [t] he bodily injury or property damage occurs during the policy period.

      (Citations and punctuation omitted; emphasis supplied.) Taylor Morrison Svcs. v. HDI-Gerling America Ins. Co., 293 Ga. 456, 457 (746 SE2d 587) (2013).

       See Rebecca M. Bratspies, “Splitting the Baby: Apportioning Environmental Liability Among Triggered Insurance Policies,” 1999 BYUL.Rev. at 1222 (I) (A) (Between 1966 and 1986, most CGL policies defined occurrence as “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expectednor intended from the standpoint of the insured.”) (punctuation andfootnote omitted).

       See Boardman Petroleum v. Federated Mut. Ins. Co., 926 FSupp. 1566, 1577-1578 (2) (S.D. Ga. 1995) (Where a CGL policy defined an occurrence as continuous or repeated exposure to a condition that results in property damage which occurs during the policy period and that is not expected nor intended from the standpoint of the insured, there was an occurrence at the moment gasoline was released into the ground from an underground storage tank. Because the policy did not expressly provide that it applied only where an occurrence was discovered during the policy period, the insurer could not disclaim coverage on the basis that the occurrence was not manifest during the policy period.), reversed on other grounds, 150 F3d 1327 (11th Cir. 1998); South Carolina Ins. Co. v. Coody, 813 FSupp. 1570, 1575-1577 (I) (B) (1) (a) (M.D. Ga. 1993) (Where a CGL policy defined an occurrence as an accident, including continuous or repeated exposure to substantially the same general harmful conditions, where the policy unambiguously provided that there was coverage only if an injury occurred within the policy period, and where improper releases of toxic industrial waste into the soil occurred after the policy period went into effect, which were discovered before the policy period ended, an occurrence took place that triggered coverage, under any trigger-of-coverage rule — the exposure, manifestation, double trigger, continuous trigger, or actual injury rule.).

       As one court has explained the known loss doctrine:
      If the insured knows or has reason to know, when it purchases a CGL policy, that there is a substantial probability that it will suffer or has already suffered a loss, the risk ceases to be contingent and becomes a probable or known loss. Where the insured has evidence of a probable loss when it purchases a CGL policy, the loss is uninsurable under that policy (unless the parties otherwise contract) because the risk of liability is no longer unknown.
      (Citations and punctuation omitted.) Outboard Marine Corp. v. Liberty Mut. Ins. Co., 607 NE2d 1204, 1210 (I) (Ill. 1992). See South Carolina Ins. Co. v. Coody, 813 FSupp. at 1577-1578 (I) (B) (1) (b) (Where environmental damage was discovered during an official investigation the year before the insured obtained coverage for its property, coverage was not triggered under any of the five approaches used for determining whether an occurrence took place during the policy period because, under every approach, an insured is not entitled to coverage under a policy obtained after the insured is aware of an occurrence prior to the policy period.); see also J. Stephen Berry et al., Ga. Property & Liability Insurance Law, § 3:14 (updated August 2016) (explaining that “Georgia courts have neither adopted nor rejected the ‘known loss’ doctrine” and noting that many modern policies incorporate the doctrine through specific policy language) (footnote omitted).


author: BARNES, Presiding Judge.

text:
    A16A1089.
    DURDEN v. ANDERSON.
    (790 SE2d 818)
   BARNES, Presiding Judge.

Ashley Durden, the mother of the 14-month-old child V. S. A., appeals from the trial court’s grant of a legitimation petition, visitation schedule, and custody order regarding the child’s biological father, Jeremy Anderson. Durden contends that the trial court erred by failing to expressly rule upon whether Anderson abandoned his opportunity interest in establishing a parent-child relationship with V. S. A. and whether legitimation was in the best interest of the child. Durden also contends that the trial court erred in entering a parenting plan that contained a self-executing automatic future modification and granting joint physical custody. For the following reasons, we affirm.

1. We review a trial court’s ruling on a legitimation petition for an abuse of discretion and will sustain the trial court’s factual findings if there is any evidence to support them. Neill v. Brannon, 320 Ga. App. 820, 822 (1) (738 SE2d 724) (2013).

As our Supreme Court has found, a biological father is afforded an opportunity to develop a relationship with his offspring. If the father grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. Unwed fathers gain from their biological connection with a child an opportunity interest to develop a relationship with their children which is constitutionally protected.

Id. at 821 (1).

In ruling on a petition to legitimate a child, the trial court must first determine whether the biological father has abandoned his opportunity interest to develop a relationship with the child. Then, depending on the nature of the biological father’s relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimation is appropriate is either a test of his fitness as a parent or the best interest of the child.

(Punctuation omitted.) Binns v. Fairnot, 292 Ga. App. 336, 336-337 (665 SE2d 36) (2008).

Anderson filed the Petition for Legitimation, and Durden initially admitted in her answer that she believed it was in the best interest of the child for the petition to be granted. On appeal, Durden argues the trial court committed reversible error by failing to make the express finding that Anderson did not abandon his opportunity interest or that legitimation was in the best interest of the child. We disagree.

In all three of her enumerations of error, Durden contends that the trial court erred for not setting out specific findings of fact in its order pursuant to OCGA § 19-9-3 (a) (8). Although she filed a request for such findings, it was not timely, as the statute requires it to be made on or before the close of evidence at the hearing. Here, the close of evidence occurred on November 18, 2015, but Durden did not file her request until December 9, 2015. Accordingly, this argument is without merit.

At the hearing, Durden testified that the child was diagnosed with sickle cell anemia at birth and requires proper monitoring and care. Although she admitted that no problems have arisen while V. S. A. was with Anderson, she was concerned that his other family members may not be aware of how to manage the disease. A nurse practitioner from the family’s hospital testified that both parents came in with the child, although she had seen Durden more. Another nurse practitioner told the trial court that she felt both parents were fully engaged.

Anderson testified that the mother and child lived with him for the first six months after V. S. A.’s birth, that he was aware of the child’s medical diagnosis, and that he attended a class where he learned how to take proper care of her and monitor her health. He also stated that he often checked the child’s medical records online and visited her every time she was hospitalized. Additionally, he would buy items that Durden and the child needed, and he testified that he wanted to spend more time with his daughter. Text message correspondence that demonstrated a positive relationship between the two parents as well as Anderson’s interest and concern for the well-being of the child were also admitted into evidence.

The trial court told the parties that it “must rule based on the evidence and what [it] think[s] is in the best interest of the child” and found that Anderson was “a fine young man. Gainfully employed. Fighting to be in his daughter’s life.” Based on the above facts, there was sufficient evidence for the trial court to find that Anderson did not abandon his opportunity interest in the child and that a continued relationship was in the child’s best interest. “As there is evidence to sustain its finding, the trial court did not abuse its discretion in granting [Anderson’s] request for legitimation.” Carden v. Warren, 269 Ga. App. 275, 277 (1) (a) (603 SE2d 769) (2004).

2. Second, Durden contends that the trial court erred in entering a self-executing automatic future modification of custody provision. We disagree.

The parenting plan order states:

Father shall have visitation with the child on alternating weeks for one consecutive week beginning Sunday evening at 6:00 p.m. and ending the following Sunday evening at 6:00 p.m. until the minor child is school age, which shall be defined as Pre-Kindergarten. When the child is of school age or enrolled in Pre-Kindergarten, Father shall have the child every other weekend from 6:00 p.m. on Friday through Monday.

This is a self-executing change of custody provision which allows “for an automatic change in custody based on a future event without any additional judicial scrutiny.” (Punctuation omitted.) Scott v. Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003).

A self-executing change of custody provision may be permissible if the provision gives paramount importance to the child’s best interest. Scott, 276 Ga. at 375 (holding that a “triggering event” such as remarriage or relocation violates the child custody statute). We find that the self-executing provision in V. S. A.’s case was made with consideration for the child’s best interest.

We addressed this same type of self-executing custody provision in Lester v. Boles, 335 Ga. App. 891 (782 SE2d 53) (2016), where the trial court ordered that the parents would alternate custody weekly until their child began the first grade. Id. We found that “[i]t is not an open-ended provision conditioned upon the occurrence of some future event that may never take place; rather, it is a custody change coinciding with a planned event that will occur at a readily identifiable time.” Id. at 893 (1).

The trial court found that the self-executing provision in the present case did not negatively affect the child’s best interest, and we find no abuse of discretion.

Decided September 1, 2016.

Jacquelyn F. Luther, Valencia C. Thurman, for appellant.

Granville Shy, Tonya Shy, for appellee.

3. Lastly, Durden contends that the trial court erred by granting joint physical custody without a finding that it is in the best interest of the child. We disagree.

We review a custody determination for an abuse of discretion. Urquhart v. Urquhart, 272 Ga. 548, 549 (1) (533 SE2d 80) (2000); OCGA § 19-9-3 (a) (3). As discussed supra in Division 1, based on the testimony presented at the hearing, the trial court heard sufficient evidence to determine that joint custody would be in the best interest of the child. “[Wjhere there is any evidence to support his finding it cannot be said by this court that there was an abuse of discretion on the part of the trial judge in awarding custody of the minor child to the father.” Urquhart, 272 Ga. at 549 (1). Thus, Durden’s argument is without merit, and we affirm the trial court’s order.

Judgment affirmed.

Boggs and Rickman, JJ., concur.