text:
    A17A0306.
    WOODARD EVENTS, LLC v. COFFEE HOUSE INDUSTRIES, LLC.
    (801 SE2d 322)
   Bethel, Judge.

Woodard Events, LLC f/k/a Scaling New Heights, LLC (“Woodard Events”) appeals from the dismissal of its action based on the application of the doctrine of forum non conveniens. Woodard Events argues that the trial court abused its discretion in granting the dismissal because it misapplied the test for forum non conveniens set forth in OCGA § 9-10-31.1 (a), accepted representations of counsel as evidence, and ignored precedents permitting parties to litigate claims in more than one state. We affirm because the trial court made written findings of fact, supported by the evidence, reflecting an analysis of the procedural framework of the statute, specifically considering andweighing each of the seven factors in OCGA § 9-10-31.1 (a).

The record shows that Woodard Events (a Georgia limited liability company) had Coffee House Industries, LLC (a California limited liability company) perform several projects for it on an ad hoc basis. Over the course of several months, the parties negotiated a contract under which Coffee House would provide several different, types of services. Coffee House’s primary project was to prepare for and conduct a business conference in New Orleans, as well as a similar conference scheduled to occur in the Bahamas some time later. Coffee House continued performing work for Woodard Events and/or Joseph Woodard personally during the contract negotiations. At some point, a dispute arose between the parties that resulted in Coffee House filing suit in California against Joseph Woodard individually Woodard Events then filed suit against Coffee House in Georgia, seeking damages for breach of contract, fraud, punitive damages, unjust enrichment, and attorney fees. Coffee House moved to dismiss the complaint on several grounds, including that the trial court should decline to adjudicate the case under OCGA § 9-10-31.1.

Following a hearing and after considering the factors set forth in OCGA § 9-10-31.1 (a), the trial court granted Coffee House’s motion. In particular, the trial court found the following factors favored dismissal: (1) availability and cost of compulsory process for attendance of unwilling witnesses; (2) unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his or her remedy; and (3) administrative difficulties for the forum courts. The trial court also found that the relative ease and access to sources of proof and possibility of viewing the premises did not favor either party. Finally, the trial court ruled that local interests and traditional deference given to a plaintiff’s choice of forum favored Woodard Events.

We turn first to the grant of Coffee House’s motion to dismiss under the doctrine of forum non conveniens. A Georgia court will dismiss an action if “in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state.” OCGA § 9-10-31.1 (a). When a trial court considers whether to grant such a motion, it must give consideration to the factors that appear in OCGA § 9-10-31.1 (a):

(1) Relative ease of access to sources of proof; (2) Availability and cost of compulsory process for attendance of unwilling witnesses; (3) Possibility of viewing of the premises . . . ; (4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his or her remedy; (5) Administrative difficulties for the forum courts; (6) Existence of local interests in deciding the case locally; and (7) The traditional deference given to a plaintiff’s choice of forum.

OCGA § 9-10-31.1 (a) (punctuation omitted). “The application of the statutory standard to the peculiar circumstances of a particular case is a matter committed to the sound discretion of the trial court[,]” and we review the trial court’s decision for abuse of discretion. Wang v. Liu, 292 Ga. 568, 569 (1) (740 SE2d 136) (2013). The trial court must “set out upon the record the essential reasoning that forms the basis for its exercise of discretion” in deciding whether to grant a motion to dismiss for forum non conveniens. Id. at 570 (1).

(a) Woodard Events argues that in considering ease of access to sources of proof, as well as the possibility of viewing the premises, the trial court overlooked the fact that some of the witnesses are located in Georgia, as are the computer systems, equipment, and software. Woodard Events further argues that the trial court failed to adequately consider that some of the work on the marketing materials was performed in Georgia as well. In its order, the trial court recognized Woodard Events’ contention that “many of the physical machines that were worked on are in Georgia” and that the witnesses to the work performed and to the misrepresentations live in Georgia. However, the trial court indicated that Woodard Events did not argue that the machines would be necessary evidence, did not address how many potential witnesses would be called, and did not show that viewing the premises would be necessary to the maintenance or defense of the action. The trial court concluded that these factors did not favor either party. On appeal, Woodard Events argues that “logic dictates” that the equipment, computer systems, and software would need to be examined during discovery And Woodard Events argued at the hearing on Coffee House’s motion that computers on which work was done pursuant to the contract were located in Georgia. But apart from its bald assertion, Woodard Events did not argue why examination of the computer systems, equipment, and software would be necessary in this breach of contract case, which appears to be a straightforward matter of contract interpretation. Nor did Woodard Events point to any evidence regarding the number of witnesses expected to be called for either side. Under these circumstances, we cannot say the trial court abused its discretion in finding this factor did not favor either party

(b) Woodard Events next argues that the trial court erred in its analysis regarding the availability and cost of compulsory process for unwilling witnesses and that the evidence established that there were more witnesses located in Georgia than in California. But, as the trial court held, Woodard Events has not shown that there are any unwilling witnesses. In contrast, depositions of Coffee House would potentially need to be subpoenaed or negotiated because the witnesses are located outside of Georgia. The trial court did not err in finding that this factor favored dismissal. See Hawkins v. Blair, 334 Ga. App. 898, 902-903 (3) (b) (780 SE2d 515) (2015).

(c) With regard to the fourth factor — unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his or her remedy — the trial court found that Coffee House had already filed suit against Joseph Woodard in California and intended to add the corporate entity, Woodard Events, as a party to the action. Woodard Events argues that the trial court should not have considered the representation of counsel because it did not qualify as evidence. However, Woodard Events failed to object to this effect at the hearing. “An argument not raised in the trial court is waived and cannot be raised for the first time on appeal.” Hawkins, 334 Ga. App. at 902 (3) (a) (citation and punctuation omitted). Accordingly, the trial court’s finding on the fourth factor is supported by the information available to the trial court at the time of its decision.

(d) As for administrative difficulties, the trial court found that the related matter pending in California would likely lead to scheduling conflicts if a separate action were permitted to proceed in Georgia. Woodard Events argues that this factor does not favor dismissal because the majority of evidence and witnesses are located in Georgia, the California suit only pertained to Joseph Woodard individually, and California’s docket was so clogged that trial would be delayed. We have already disposed of Woodard Events’ first argument above. As for its argument that the California suit only pertained to Joseph Woodard individually, Woodard Events’ counsel conceded that Coffee House was attempting to serve the corporate defendant, Woodard Events, in the California suit. Finally, Woodard points to no evidence supporting its last argument regarding the comparative strain on each state’s dockets. We find no error in the trial court’s analysis of this factor.

Decided June 2, 2017.

Witter man Law Group, Richard E. Witterman, Jr., for appellant.

Mitchell & Shapiro, Patrick J. O’Connor, for appellee.

(e) Woodard Events argues that the trial court should have given greater weight to the sixth and seventh factors — local interests and deference to the plaintiff’s choice of forum. OCGA § 9-10-31.1 (a) requires the trial court to “give consideration” to these factors, and the court’s order indicates that it did so. We discern no abuse of discretion here. See Collier v. Wehmeier, 313 Ga. App. 421, 424 (2) (721 SE2d 919) (2011).

(f) Lastly, Woodard Events argues that the trial court ignored precedent that “the pendency of a suit in one [s] tate between the same parties and for the same cause of action furnishes no cause to stay or abate a new suit brought in a court of another [s]tate.” Ambursen Hydraulic Constr. Co. v. Northern Contracting Co., 140 Ga. 1, 6 (78 SE 340) (1913). However, this general rule must be considered in conjunction with OCGA § 9-10-31.1. Thus, while Georgia law may provide for instances where a claim may be properly raised in a Georgia court despite the pendency of an action in another state, the trial court may still properly find that the claim would be more appropriately heard in another forum due to the interests of justice and convenience of the parties, as the trial court did here. We therefore affirm the trial court’s decision to dismiss the action on forum non conveniens grounds.

Judgment affirmed.

McFadden, P. J., and Branch, J., concur.


source: Caselaw Access Project

author: MERCIER, Judge.

license: Public Domain

text:
    A17A0066.
    GOODWIN v. THE STATE.
    (802 SE2d 3)
   MERCIER, Judge.

Valarie Goodwin was charged by accusation in the Superior Court of Hall County with obtaining a controlled substance by theft (hydrocodone) (Count 1) and misdemeanor theft by taking of trama-dol (Count 2). Following a bench trial, Goodwin was found guilty of both offenses, and she appealed the judgment of conviction and sentence entered on those verdicts. In Goodwin v. State, 336 Ga.App. XXIII (Case No. A15A2213) (March 11, 2016) (unpublished), this Court reversed Goodwin’s conviction on Count 1, because Goodwin had not waived formal indictment of that offense, a felony, and indictment was required pursuant to OCGA § 17-7-70 (a). Thus, we found that the Superior Court of Hall County did not have jurisdiction over that offense. We affirmed Goodwin’s conviction on Count 2.

The State subsequently indicted Goodwin for obtaining a controlled substance by theft (hydrocodone), with the charging language in the indictment being identical to that in Count 1 in the former accusation. Goodwin filed a Plea in Bar and Motion to Dismiss the Indictment, which the trial court denied. Goodwin appeals, contending that the subsequent “prosecution is barred by the procedural aspect of the double jeopardy provisions of the United States and Georgia Constitutions contained in OCGA §§ 16-1-7 and 16-1-8, and by the principle of res judicata.” For the reasons that follow, we agree that subsequent prosecution of this offense is barred, and reverse the trial court’s denial of Goodwin’s plea in bar.

“In reviewing a trial court’s ruling on a motion for plea in bar, where the evidence is uncontroverted and no question is presented regarding the credibility of witnesses, we review de novo the trial court’s application of the law to the undisputed facts.” Pierce v. State, 294 Ga. 842, 843 (1) (755 SE2d 732) (2014).

The United States and Georgia Constitutions proscribe a defendant’s being twice placed in jeopardy for the same offense. United States Constitution, Fifth Amendment; Georgia Constitution, Art. I, Sec. I, Par. XVIII. OCGA §§ 16-1-6, 16-1-7, and 16-1 -8 extend the proscription of double jeopardy beyond those constitutional limits by placing limitations upon multiple prosecutions, convictions and punishments for the same criminal conduct. Stone v. State, 166 Ga. App. 245 (1) (304 SE2d 94) (1983).

State v. Martin, 173 Ga. App. 370, 370-371 (326 SE2d 558) (1985).

These statutory provisions distinguish between two aspects of double jeopardy — first, limitations upon multiple prosecutions for crimes arising from the same conduct (referred to as the procedural bar of double jeopardy); and, second, limitations upon multiple convictions or punishments that may be imposed for such crimes (referred to as the substantive bar of double jeopardy).

(Emphasis in original.) Stephens v. Hopper, 241 Ga. 596, 598-599 (1) (247 SE2d 92) (1978) (discussing former Ga. Code Ann. §§ 26-505, 26-506, 26-507).

OCGA § 16-1-8 (b) provides in pertinent part:

A prosecution is barred if the accused was formerly prosecuted for a different, crime or for the same crime based upon different, facts, if such former prosecution: (1) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution, is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge), or is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution or unless the crime was not consummated when the former trial began[.]

OCGA § 16-1-8 (d) provides:

A prosecution is not barred within the meaning of [OCGA § 16-1-8] if: (1) The former prosecution was before a court which lacked jurisdiction over the accused or the crime; or (2) Subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict.

OCGA § 16-1-7 (b) pertinently provides: “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution[.]”

To constitute a “previous prosecution” within the meaning of OCGA §§ 16-1-7 (b) and 16-1-8 (b), the defendant previously must have been “placed in jeopardy” as to at least one of the offenses arising out of the same conduct as the offense for which the State is subsequently attempting to prosecute him. As a general rule, a person is in jeopardy when he is regularly charged with a crime before a court of competent jurisdiction and a trial has commenced[.]

State v. Smith, 185 Ga.App. 694, 696 (365 SE2d 846) (1988) (citations omitted).

A defendant is placed in constitutional jeopardy when, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled and a jury has been impaneled and sworn[, whereas] the doctrine of procedural double jeopardy, which is subsumed under the rubric of OCGA § 16-1-7 . . . protects a defendant from multiple prosecutions arising from the same conduct in situations where constitutional double jeopardy would not be a defense.

Martin, supra at 371 (citations and punctuation omitted).

Here, it is indisputable that the two offenses (the misdemeanor charge of which Goodwin stands convicted, and the felony charge that was improperly accused in her first trial and for which the State has subsequently indicted her) arose from the same conduct and were known to the prosecuting officer at the time the previous prosecution was commenced. The offenses were within the jurisdiction of a single court, in that they could both be tried in the Superior Court of Hall County See Etienne v. State, 298 Ga. App. 149, 150 (679 SE2d 375) (2009); Mann v. State, 160 Ga. App. 527, 528 (287 SE2d 325) (1981); Brock v. State, 146 Ga.App. 78, 79-80 (245 SE2d 442) (1978). Goodwin was placed in jeopardy as to Count 2 (theft by taking of tramadol, a misdemeanor), and her trial resulted in a conviction on that count. Although constitutional jeopardy did not attach to Count 1 (obtaining a controlled substance by theft (hydrocodone)) in the former prosecution because that offense was not within the jurisdiction of the trial court as a result of the State’s failure to indict it, constitutional jeopardy did attach to the misdemeanor in Count 2, and thus procedural double jeopardy prevents a subsequent prosecution of offenses arising from the same transaction. See Martin, supra; McCannon v. State, 252 Ga. 515, 517 (315 SE2d 413) (1984); State v. Stowe, 167 Ga. App. 65, 66-67 (2) (306 SE2d 663) (1983); compare Armstrong v. State, 281 Ga. App. 297 (635 SE2d 880) (2006) (indictment and retrial were not barred where the offenses, all felonies which required indictment, were charged on an accusation and a jury was impaneled and sworn to try the defendant on the accusation, which was then dismissed, because the trial court did not have jurisdiction over those offenses); McCrary v. State, 254 Ga. 382, 383-384 (2) (b) (329 SE2d 473) (1985) (defendant could be re-indicted for felony murder with aggravated assault as the underlying felony when he had previously been found guilty of felony murder as a lesser included offense of malice murder, where the reversal was the result of the trial court having instructed the jury on the underlying felony offense of robbery, which was not included in the indictment, but where aggravated assault was included in the former indictment).

The burden was on the State to properly indict the offense of obtaining a controlled substance by theft (hydrocodone), and to prosecute that charge simultaneously with the offense of theft by taking of tramadol. See Martin, supra. The State contends that it did, charge Goodwin with obtaining a controlled substance by theft in the former prosecution and “attempt[ed] to prosecute both offenses in one prosecution.” However, Goodwin was not properly charged in the Superior Court of Hall County It is not sufficient that Goodwin was “on notice” of the felony offense, as the State argues. Further, the State is correct that Goodwin’s conviction on the count in question was not overturned on the basis of insufficient evidence, and thus OCGA § 16-1-8 (d) provides that “[a] prosecution is not barred within the meaning of” OCGA § 16-1-8. However, OCGA § 16-1-7 (b) still applies.

The State argues that cases such as Mann, supra, are distinguishable from the instant case on the basis that Mann “involved a guilty plea as a result of criminal conduct... that the defendant could have expected to end criminal prosecution.” This argument is unavailing. “[A] plea of guilty to an indictment or complaint with its entry on the record and acceptance by the trial judge constitutes jeopardy for purposes of OCGA §§ 16-1-7 (b) and 16-1-8 (b).” Smith, supra at 696.

In denying Goodwin’s plea in bar, the trial court relied on Keener v. State, 238 Ga. 7 (230 SE2d 846) (1976), and the State relies on that case in its argument to this Court. In Keener, the defendant waived indictment and entered guilty pleas on several accusations, on charges including armed robbery, burglary, and possession of a sawed-off shotgun. Id. The guilty pleas and sentences on the armed robbery counts were set aside for lack of jurisdiction because indictment could not be waived on capital felony charges. Id. When he was indicted for the two armed robbery counts, Keener contended that, because he stood convicted and punished for possession of a sawed-off shotgun during the armed robberies and the crime was legally and factually the same offense as the armed robberies, he could not be subsequently prosecuted on the armed robbery indictments. Id.

Decided June 5, 2017.

Banks, Stubbs & McFarland, R. Parker McFarland, Jr., for appellant.

Lee Darragh, District Attorney, Kelley M. Robertson, Assistant District Attorney, for appellee.

The Supreme Court of Georgia held:

Where crimes are tried separately it is generally held that if multiple convictions arising out of a single prosecution are barred they will likewise be barred from successive prosecution. Therefore when crimes are to be prosecuted separately the more serious known crimes should be prosecuted first to avoid the conviction of a lesser crime barring a subsequent prosecution for a more serious crime. But, where there is a conviction of two crimes in a single prosecution one of which is included in the other and the defendant obtains a reversal of the major crime for lack of jurisdiction the remaining conviction of the lesser crime does not bar a retrial on the major crime.

Keener, supra at 8 (footnote omitted; emphasis supplied). The instant case, in contrast, does not involve included or lesser crimes, but two separate and distinct offenses.

The trial court also cited Pierce, supra. The reasoning in that case does not apply here, as Pierce did not involve a subsequent prosecution for the same crime. Instead, Pierce dealt with a trial court’s order authorizing a defendant to withdraw his original guilty pleas and convictions, the vacating of that order on the appellant’s own motion, and the subsequent reinstatement of those guilty pleas and convictions. Pierce, supra at 843-844 (1). The Pierce Court explained, “there was not in this case a second prosecution.” Id. at 844 (1).

Judgment reversed.

Barnes, P J., and McMillian, J., concur.


author: DILLARD, Presiding Judge.

text:
    A17A0130.
    CALLAWAY BLUE SPRINGS, LLLP v. WEST BASIN CAPITAL, LLC.
    (801 SE2d 325)
   DILLARD, Presiding Judge.

In an action brought under the Uniform Fraudulent Transfers Act (“UFTA”), Callaway Blue Springs, LLLP (“CBS”) appeals the trial court’s grant of West Basin Capital, LLC’s (“West Basin”) motion to be substituted as the party plaintiff, its grant of West Basin’s motion for an interlocutory injunction, and its denial of CBS’s motion for summary judgment. On appeal, CBS argues that the trial court erred in finding that West Basin has standing to pursue a UFTA claim against it and that, even if West Basin has standing, the trial court erred by relying on erroneous factual findings in granting West Basin’s request for injunctive relief. Because we agree that West Basin lacks standing to pursue a claim against CBS under the UFTA, we reverse.

The facts relevant to this appeal are undisputed. On June 27, 2014, following a bench trial in a separate, but related, case, a trial court ordered the Estate of Cason J. Callaway, Jr. (the “Callaway Estate”) to specifically perform an agreement to purchase CBS stock from two of its shareholders, Larry Garner, Sr., and Larry Garner, Jr., (the “Garners”) for $1,200,000. Then, on October 31, 2014, the Garners initiated this lawsuit against the Callaway Estate, CBS, and several Callaway family members, asserting a claim under the UFTA and seeking damages for alleged fraudulent conveyances of property. In their complaint, the Garners asserted that Cason Callaway, Jr., and his wife, Nancy, created CBS in 2010 for the purpose of transferring real estate worth $5,000,000 to the company in an effort to defraud their creditors, which now included the Garners. The Garners sought damages, including, inter alia, satisfaction of the $1,200,000 judgment that they had been awarded. According to the Garners, any transfers of the property were voidable under the UFTA because they were made with the intent to hinder, delay, or defraud the Garners as creditors of the Callaway Estate.

Approximately one year later, on October 13, 2015, West Basin filed a motion to be substituted as the party plaintiff in place of the Garners, an amended complaint, and a motion for an interlocutory injunction, requesting an order that, inter alia, enjoined CBS and the other defendants from further transfer or encumbrance of the property that was the subject of the alleged fraudulent transfers, as well as from diluting the Callaway Estate’s interest in CBS. In its motion to be substituted as the plaintiff, West Basin asserted that, after the Garners initiated their suit under the UFTA, they assigned to West Basin all of their rights to collect the $1,200,000 judgment from the Callaway Estate and “all right, title, and interest asserted in this Transfer Case . . . And in support of this motion, West Basin attached the assignments, which were executed by the Garners on October 7, 2015, as exhibits.

In response, CBS argued that West Basin, as an assignee of the fraudulent-transfer claim, lacked standing to pursue the claim under the UFTA. CBS acknowledged that, on July 1, 2015, the UFTA was renamed and the provisions were amended to permit the assignment of fraudulent-transfer claims, but it contended that the amendments do not apply to the 2010 transfers at issue. In addition, CBS filed a motion for summary judgment, arguing that the Garners were no longer one of its creditors, which is required to bring a claim under the UFTA, because they had assigned their interest in the $1,200,000 judgment as well as their fraudulent-transfer claim to West Basin. Ultimately, the trial court denied CBS’s motion for summary judgment and granted both West Basin’s motion to be substituted as party plaintiff and its request for injunctive relief. This appeal by CBS follows.

1. CBS first argues that West Basin lacks standing to pursue the Garners’ fraudulent-transfer claim because claims brought under the UFTA are not assignable. We agree.

At the outset, we note that a trial court’s decision with respect to standing “will not be reversed absent clear error, although we review de novo any questions of law inherent in that decision.” And, of course, the interpretation of a statute is a question of law, which is “reviewed de novo on appeal.” Moreover, when only a question of law is at issue, as here, we “owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” In reviewing the statutes at issue in this appeal, we are mindful that in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” Toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” Simply put, when the language of a statute is “plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.”

As acknowledged by both parties, in RES-GA Hightower, LLC v. Golshani, this Court recently considered whether, under OCGA § 44-12-24 and the Supreme Court of Georgia’s decision in Security Feed & Seed Co. of Thomasville, Inc. v. NeSmith, an assignee to a debt has standing to assert a claim that the debtor fraudulently conveyed property in violation of the UFTA. In doing so, we first noted that “under the plain terms of the UFTA, an assignee to debt ordinarily would qualify as a ‘creditor’who has a ‘claim,’but nothing in the UFTA specifically addresses assignments of such claims.” But in Georgia, a separate statute sets forth certain claims that are not assignable. Specifically, under OCGA § 44-12-24,

[e]xcept for those situations governed by Code Sections 11-2-210 and 11-9-406, a right of action is assignable if it involves, directly or indirectly, a right of property[, but] [a] right of action for personal torts, for legal malpractice, or for injuries arising from fraud to the assignor may not be assigned.

Thus, the question in Golshani was “whether a claim under the UFTA to set aside a property transfer as defrauding creditors is a ‘right of action . . . arising from fraud’ such that it is not assignable.” Ultimately, relying on NeSmith and the plain language of the UFTA, we held that an assignee of debt is precluded from pursuing a fraudulent-transfer claim even if the assignee meets the definition of a “creditor” under the Act.

To further bolster our holding in Golshani, we noted, inter alia, that the 2015 amendments to the UFTA supported our conclusion. Indeed, because the newly enacted UVTA specifically amended the UFTA to allow assignees and successors to debt to pursue fraudulent-transfer claims under the UVTA, this Court presumed, as it should, that such assignments were not allowed under the UFTA, which was silent on the issue of whether fraudulent-transfer claims were assignable. We further noted that the language of the amendments themselves gave no indication that they should be applied retroactively, and thus, they only apply to claims arising after July 1, 2015. As a result, this Court, in Golshani, affirmed the trial court’s grant of summary judgment to the debtor because the plaintiff creditor, which, in 2010, had been assigned all rights, title, and interest in the debt, lacked standing to bring a claim under the UFTA arising from alleged fraudulent transfers that occurred in 2 0 09. And our holding in Golshani—that claims brought pursuant to the UFTA are not assignable—was recently adopted in Merrill Ranch Properties, LLC v. Austell, a factually indistinguishable case.

In an attempt to distinguish Golshani and Austell, West Basin argues that the provisions of the UVTA, rather than the UFTA, apply to this case because, although the alleged fraudulent transfers occurred before July 1, 2015 (i.e., the UVTA’s effective date), the Garners did not assign their fraudulent-transfer claim to West Basin until October 7, 2015. Thus, West Basin contends that it has standing to pursue a claim under the UVTA because its “right of action” did not accrue until after the UVTA’s effective date. But Golshani expressly (and rightly) held that “the amendments [to the UFTA] only apply to transfers made or obligations incurred on or after July 1, 2015 [,] and only to a right of action accruing after July 1, 2015.” And here, it is undisputed that, regardless of when West Basin’s right of action accrued, the alleged fraudulent transfers, as well as the Callaway Estate’s obligation to pay the $1,200,000 judgment, which made the Garners (and later West Basin) its creditors, occurred in 2010 and 2014, respectively. It is further undisputed that the Garners initiated this litigation in 2014 under the UFTA before the UVTA was enacted. And it is well settled that “an assignee ‘stands in the shoes’ of the assignor and obtains no greater rights than the assignor possessed at the time of assignment.” Thus, because the Garners’ UFTA claim was unassignable for the reasons set forth in Golshani, West Basin’s argument that it should be permitted to benefit from the greater rights provided to creditors by the UVTA is unavailing.

In reaching the opposite conclusion, the trial court, in a somewhat cursory order, found that the language of Senate Bill 65 and the relevant legislative history of the UVTA evinces the General Assembly’s “intent” for West Basin to have standing to pursue a fraudulent-transfer claim because the claim was assigned after the UVTA’s effective date. Similarly, West Basin contends that the amendments to the UFTA show that the General Assembly “intended” to provide greater rights to creditors and to hold that those amendments do not apply under the circumstances of this case would contravene that “intention.” But neither the trial court nor West Basin identifies any ambiguous language in the UVTA suggesting that, although the UVTA’s provisions do not apply to transfers of land and obligations incurred prior to its enactment, there is some implicit exception to that rule when a pre-UVTA claim is assigned from the plaintiff to another creditor after its enactment. And so long as the meaning of the relevant statutory text is plain and does not lead to an unreasonable or absurd result, that is the end of our inquiry. Indeed, it is deeply troubling when

judges start discussing not the meaning of the statutes the legislature actually enacted, as determined from the text of those laws, but rather the unexpressed “spirit” or “reason” of the legislation, and the need to make sure the law does not cause “unreasonable consequences,” we venture into dangerously undemocratic, unfair, and impractical territory. The “spirit or reason” approach to statutory interpretation invites judges to read their own policy preferences into the law, as we all believe that our own policy views are wise and reasonable, which tempts us to assume, consciously or unconsciously, that the legislature could not have intended differently.

Suffice it to say, we are not in the least bit tempted or persuaded by unenacted or extratextual musings. As Georgians (and Americans), we are “governed by laws, not by the intentions of legislators.” And as judges, we should only be concerned with what laws actually say, “not by what the people who drafted the laws intended.”

As to the text of the UVTA itself, OCGA § 18-2-74 (c) provides that “[i]f a creditor is a successor or assignee, a right of action under... this Code section is automatically assigned to such successor or assignee.” Further, OCGA § 18-2-71 (4) defines a “creditor” who can assert a claim under the UVTA, as “a person who has a claim, regardless of when the person acquired the claim, together with any successors or assigns.” Given that this revised definition of “creditor” (to permit the assignment of claims) is included in the UVTA, but not the UFTA, the claim acquired by the creditor, together with any successors or assigns, must be a claim asserted under the UVTA. And again, it is undisputed that the Garners, the original creditors who brought this action under the UFTA, did not have a claim under the UVTA that could have been automatically assigned to West Basin as contemplated by OCGA § 18-2-74 (c).

In sum, accepting West Basin’s argument—based almost exclusively on a subsection of Senate Bill 65 that was never enacted into law—would require this Court to overrule our prior construction of the UVTA, which was that “the General Assembly has made it clear that the [2015] amendments only apply to transfers made or obligations incurred on or after July 1, 2015[,] and only to a right of action accruing after July 1, 2015.” Because we find no basis in the text of the UFTA or the UVTA to support revisiting our holding in Golshani and, like the Golshani Court, our decision is controlled by NeSmith as well as OCGA § 44-12-24, we decline to do so.

Given the foregoing, the trial court erred in finding that West Basin has standing to be substituted as the plaintiff in place of the Garners to pursue their UFTA claim.

2. CBS also argues that the trial court relied on erroneous factual findings in granting West Basin’s request for an interlocutory injunction. But given our holding in Division 1 supra, the trial court erred in granting any relief to West Basin, and we need not separately address whether the trial court erred in granting the injunction.

Decided June 5, 2017

Pope, McGlamry, Kilpatrick, Morrison & Norwood, Wade H. Tomlinson III; Johnson Marlowe, Spence Johnson, Dustin R. Marlowe, for appellant.

Waldrep, Mullin & Callahan, C. Morris Mullin; Fischer & Scott, Bobby Lee Scott, for appellee.

For all these reasons, we reverse the trial court’s grant of West Basin’s motion to be substituted as the plaintiff, its denial of summary judgment to CBS, and its grant of an interlocutory injunction to West Basin.

Judgment reversed.

McMillian and Reese, JJ., concur.

       To the extent that there had been any disputed material facts, we apply a “de novo standard of review to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Ashton Atlanta Residential, LLC v. Ajibola, 331 Ga.App. 231, 232 (770 SE2d 311) (2015) (punctuation omitted).

       This Court affirmed the 2014 judgment on appeal, and in doing so, set forth the underlying facts giving rise to that dispute. See Callaway v. Garner, 327 Ga. App. 67, 68 (755 SE2d 526) (2014) (physical precedent only), reversed in part and remanded on other grounds by Estate of Callaway v. Garner, 297 Ga. 52 (772 SE2d 668) (2015), and opinion vacated in part by Callaway v. Garner, 333 Ga. App. 747 (776 SE2d 829) (2015). In yet another appeal arising from this litigation, we affirmed the trial court’s dismissal of a notice of appeal filed by the Callaway Estate from the trial court’s entry of final judgment in favor of Larry Garner, Sr., and Larry Garner, Jr., in their civil action against the Estate, seeking specific performance of Cason Callaway’s agreement to purchase stock from the Garners. See Callaway v. Garner, 340 Ga. App. 176 (796 SE2d 906) (2017).

       Although the Garners’ complaint included several different counts alleging UFTA violations, the alleged fraudulent transfers all occurred in 2010 and pertained to a single parcel of land. For ease of reference (and because this appeal involves only the issue of West Basin’s standing to sue), we refer to the Garners’ complaint as asserting a single UFTA claim.

       We will refer to the operative provisions of the UFTA as they existed at the time the complaint was filed, while noting that the UFTA has since been amended in 2015 and is now called the Uniform Voidable Transactions Act (“UVTA”). See Ga. L. 2015, p. 996, § 4A-1 (effective July 1, 2015).

        See OCGA § 5-6-34 (a) (4) (providing that all judgments or orders on requests for interlocutory or final injunctions are directly appealable); Mitchell v. Kenya, 216 Ga.App. 80, 81 (1) (452 SE2d 799) (1995) (“Although the denial of summary judgment must be appealed in accordance with the interlocutory appeal provisions of OCGA § 5-6-34 (b), such an interlocutory ruling can be appealed without application when it is tied to the appeal of a directly appealable order or judgment.”).

        Harden v. Banks Cty., 294 Ga. App. 327, 328 (1) (670 SE2d 133) (2008).

        Kemp v. Kemp, 337 Ga. App. 627, 632 (788 SE2d 517) (2016) (punctuation omitted).

        Id. (punctuation omitted).

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (punctuation omitted); accord Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012); Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013).

        Deal, 294 Ga. at 172 (1) (a) (“To that end, we must afford the statutory text its plain and ordinary meaning!.]” (punctuation omitted)); see State v. Able, 321 Ga.App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies). . . .”).

        See Arizona v. Inter Tribal Council of Arizona, Inc., _ U. S. _, _ (II) (B) (133 SCt 2247, 186 LE2d 239) (2013) (“Words that can have more than one meaning are given content, however, by their surroundings.” (punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears!.]”); see also Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (1) (775 SE2d 527) (2015) (“The common and customary usages of the words are important, but so is their context.” (punctuation omitted)).

        Deal, 294 Ga. at 172-73 (1) (a); accord Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013).

        In the Interest of L. T., 325 Ga.App. 590, 592 (754 SE2d 380) (2014) (punctuation omitted); accord Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011).

        Holcomb v. Long, 329 Ga.App. 515, 518 (1) (765 SE2d 687) (2014) (punctuationomitted); see Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

       334 Ga. App. 176 (778 SE2d 805) (2015).

       213 Ga. 783 (102 SE2d 37) (1958).

        See Golshani, 334 Ga. App. at 176.

        Id. at 178 (1) (a).

        See id.

       (Emphasis supplied.)

        Golshani, 334 Ga. App. at 178 (1) (a).

        Id. at 180 (1) (a); see NeSmith, 213 Ga. at 784 (1) (“[When], as here, the purchaser or assignee of accounts receivable brings an action to recover on an open account owing by the defendant debtor to the assignor and assigned to the plaintiff, and in the same action seeks equitable relief to set aside an alleged fraudulent deed to hinder, delay, and defraud his creditors, made by the debtor to his wife prior to the date on which the accounts receivable were assigned to the plaintiff, and also a subsequent loan deed made by the wife to counsel of the defendant to secure an indebtedness due by her to them, the trial judge did not err in sustaining the general demurrer of the defendants to so much of the petition as sought such equitable relief. . . .”).

        See Golshani, 334 Ga. App. at 180 (1) (b).

        See id. at 181-82 (1) (b); see also Nuci Phillips Mem’l Found., Inc. v. Athens-Clarke Cty. Bd. of Tax Assessors, 288 Ga. 380, 383 (1) (703 SE2d 648) (2010) (“All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. Furthermore, when a statute is amended, from the addition of words it may be presumed that the legislature intended some change in the existing law.” (citation and punctuation omitted)).

         See Golshani, 334 Ga. App. at 181-82 (1) (b).

        See id. at 177-78, 182 (1) (b).

       336 Ga. App. 722, 731 (3) (784 SE2d 125) (2016).

        Id. at 731-32 (3); cf. RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713, 719 (V) (1) (a) (798 SE2d 315) (2017) (reaffirming and discussing the holdings in Golshani and Austell in a UFTA case, but finding that those cases were inapplicable when the plaintiff creditor sought a remedy for an injury that was committed directly against it, not for an injury stemming from fraud to a previous holder of the debt).

       We note that, in arguing that its “right of action” accrued under the UVTA at a later date than its “cause of action” accrued under the UFTA, West Basin relies on extra-jurisdictional legal authority that is not binding on this Court. In fact, the only Georgia case cited by West Basin to support its contention that, under the UFTA, multiple “rights of action” can accrue at different times based on the same “cause of action,” Burns v. Brickle, 106 Ga. App. 150 (126 SE2d 633) (1962), is entirely inapplicable to the circumstances of this case. Indeed, Burns involved personal-injury and wrongful-death claims arising from a car accident, and, as a result, neither the provisions of the UFTA and UVTA nor this Court’s decisions regarding standing to sue under those statutes was at issue. See generally id. In Burns, we addressed whether a plaintiff could initiate a separate lawsuit to pursue a wrongful-death claim on behalf of her son when she had already initiated a personal-injury action on her own behalf. See id, at 151. Ultimately, we held that the plaintiff could do so because “the injury sustained by the plaintiff on account of the death is sustained in a different capacity from the injury sustained by the plaintiff on account of his or her own personal injuries, and for this reason the rule against splitting causes of action [was] not applicable.” Id. Here, unlike inBurns, although West Basin seeks to be substituted as the plaintiff, there is only a single claim at issue—the fraudulent-transfer claim asserted by the Garners on October 31, 2014, which was based on fraudulent transfers of land by members of the Callaway family in 2010. Moreover, unlike the mother in Burns, who sought to pursue a wrongful-death claim on her son’s behalf, West Basin is not pursuing its claim on behalf of someone else.

        Golshani, 334 Ga. App. at 181 (1) (b) (emphasis supplied).

        Houghton v. Sacor Fin., Inc., 337 Ga. App. 254, 258 (1) (b) (i) (786 SE2d 903) (2016) (punctuation omitted); accord S. Telecom, Inc. v. TW Telecom of Ga. L.P., 321 Ga. App. 110, 114 (3) (741 SE2d 234) (2013); see also Golden Pantry Food Stores, Inc. v. Lay Bros., Inc., 266 Ga. App. 645, 648 (1) (597 SE2d 659) (2004) (“It is a well-established principle of Georgia law that an assignee of a contract acquires its rights from the assignor, has no more rights under the contract than the assignor, and is subject to all the defenses that could have been raised against the assignor.” (emphasis supplied)).

       S.B. 65, 153rd Gen. Assemb., Reg. Sess. (Ga. 2015) (“S.B. 65”).

        See Ray v. Barber, 273 Ga. 856, 856 (1) (548 SE2d 283) (2001); Shorter Coll. v. Baptist Convention of Ga., 279 Ga. 466, 470 (1) (614 SE2d 37) (2005); see also City of Atlanta v. Miller, 256 Ga. App. 819, 820 (1) (569 SE2d 907) (2002) (“In construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry." (punctuation omitted) (emphasis supplied)); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 397 (1st ed. 2012) (“Intentionalist theorists and courts promote the idea that enacted texts merely evoke or suggest—as opposed to state—what the true law is. . . . If this were true, then it would hardly be possible ever to reach a consensus about the law. The traditional view is that an enacted text is itself the law.”).

        Merritt v. State, 286 Ga. 650, 656 (690 SE2d 835) (2010) (Nahmias, J., concurring specially).

        Conroy v. Aniskoff, 507 U. S. 511, 519 (113 SCt 1562, 123 LE2d 229) (1993) (Scalia, J., concurring); accord Day v. Floyd Cty. Bd. of Educ., 333 Ga. App. 144, 151 (775 SE2d 622) (2015) (Dillard, J., concurring).

       Scalia & Garner, supra at 16; accord Day, 333 Ga. App. at 151 (Dillard, J., concurring).

       (Emphasis supplied.)

        See supra note 31 & accompanying text.

        Golshani, 334 Ga. App. at 181 (1) (b) (emphasis supplied). As noted supra, even if West Basin’s right of action did not accrue until it received the assignment from the Garners in October 2015, the holding in Golshani requires that the transfer, the obligation incurred, and the right of action all accrue after July 1, 2015, for the UVTA amendments to apply. See id.

        See Smith v. Baptiste, 287 Ga. 23, 25 (1) (694 SE2d 83) (2010) (“The application of the doctrine of stare decisis is essential to the performance of a well-ordered system of jurisprudence.” (punctuation omitted)); A & A Heating & Air Conditioning Co. v. Burgess, 148 Ga. App. 859, 860 (1) (253 SE2d 246) (1979) (“Even those who regard ‘stare decisis’ with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute. Once the court interprets the statute, the interpretation has become an integral part of the statute. This having been done, any subsequent ‘reinterpretation’ would be no different in effect from a judicial alteration of language that the General Assembly itself placed in the statute.” (citations and punctuation omitted)); Ga. Const. of 1983, Art. VI, Sec. V, Par. III (“The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.”).


text:
    A17A0324.
    HILLSMAN v. THE STATE.
    (802 SE2d 7)
   DILLARD, Presiding Judge.

Following trial, a jury convicted LeAnthony Hillsman on one count each of cruelty to children in the first degree, aggravated battery, and aggravated assault. Hillsman appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence supporting his convictions and arguing that the trial court erred in denying his claims of ineffective assistance of counsel and in failing to conduct a hearing to determine whether he could represent himself. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that in 2012, Hillsman lived with five-month-old J. M.’s mother (with whom Hillsman was romantically involved), J. M. (whose father was not Hillsman), and Hillsman and the mother’s three-year-old daughter. On February 5, 2012, the mother left for work just before 8:00 a.m., and Hillsman stayed home to babysit J. M. Later that afternoon, a neighbor heard J. M. crying excessively in a manner that she did not think was normal. As the crying continued, the neighbor considered calling the police. But a short time later, the neighbor heard a knock on her door and opened it to find Hillsman in a panic, claiming that J. M. was not breathing and that he had no vehicle nor a telephone to call an ambulance. After quickly determining that J. M. was, in fact, not breathing, the neighbor agreed to drive J. M. and Hillsman to the hospital.

While en route to the hospital, Hillsman attempted to administer CPR to J. M., but the neighbor informed him that he was not administering it properly for a child of J. M.’s size. Upon reaching the local hospital, emergency-room physicians determined that J. M.’s injuries were too severe to be treated there. Consequently, J. M. was immediately flown to the Medical Center of Central Georgia in Macon. There, physicians examined J. M. and determined that he had suffered subdural hemorrhaging, retinal hemorrhaging, bruising to his sternum, and a torn frenulum of the tongue, all of which were consistent with the child having been violently shaken. In addition, J. M. had also suffered several puncture wounds to his feet and fractures to several ribs, and had to be placed on a ventilator.

Given the nature and severity of J. M.’s injuries, hospital staff notified local law enforcement, and a sheriff’s department investigator interviewed Hillsman at the hospital. During that interview, Hillsman claimed that J. M. must have suffered his injuries by falling off the sofa after he placed the child there. Later that same day, the investigator interviewed Hillsman at his home and confronted him with the fact that the physician who treated J. M. asserted that a short fall from a sofa could not have possibly caused the child’s injuries. At that point, Hillsman admitted that J. M. did not fall from the sofa but, instead, he claimed that the injuries may have occurred when he put the child down on the sofa too hard. Then, based on this change in Hillsman’s account and the physician’s opinion regarding the child’s injuries, the investigator arrested Hillsman and seized a small kitchen knife that he suspected caused the puncture wounds to J. M.’s feet.

Following Hillsman’s arrest, investigators conducted a third interview. And during that interview, Hillsman claimed that five-month-old J. M. had acquired splinters in his feet while Hillsman helped him practice walking on the wooden front porch and that he had then used the kitchen knife to extract the splinters. Additionally, Hillsman stated that he may have accidentally injured J. M. while trying to perform CPR on the child after he had stopped breathing. Nevertheless, shortly thereafter, the State charged Hillsman, via indictment, with one count each of cruelty to children in the first degree, aggravated battery, and aggravated assault.

The case then proceeded to trial, during which the two sheriff’s department investigators and the neighbor who drove Hillsman and J. M. to the hospital testified. J. M.’s mother also testified and stated that her son, who was healthy when she left for work on the day in question, now suffered seizures and had to be fed with a tube. In addition, the physician who treated J. M. testified that the child’s injuries could not have possibly been caused by a short fall from a sofa but were instead consistent with him having been violently shaken. The physician further testified that the puncture wounds to J. M.’s feet appeared to be in a pattern and, thus, in contrast to the randomness in which one normally suffers splinters. Finally, the physician testified that J. M.’s brain injury required him to be fed with a tube and that he would need significant rehabilitation in order to function normally.

After the State rested, Hillsman testified in his own defense and claimed, again, that his attempt to remove splinters from J. M.’s feet caused the puncture wounds and that his CPR attempts possibly caused the bruising to the child’s sternum and his fractured ribs. Hillsman also claimed that J. M.’s shaking injuries may have occurred when he frantically ran to the neighbor’s house while carrying the child. But at the conclusion of the trial, the jury found Hillsman guilty on all three counts of the indictment.

Subsequently, Hillsman obtained new counsel and filed a motion for new trial, in which he argued, inter alia, that his trial counsel rendered ineffective assistance. But after conducting a hearing on Hills man’s motion, during which his trial counsel testified regarding his representation, the trial court denied it. This appeal follows.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And in evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility but only determine whether “a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case[.]” With these guiding principles in mind, we turn first to Hillsman’s specific challenges in this regard.

1. Hillsman first contends that the evidence was insufficient to support his convictions on the charges of cruelty to children in the first degree and aggravated battery. Specifically, he argues that the State failed to prove that he acted with malice with regard to either offense. We disagree.

Under OCGA § 16-5-70 (b), “[a] person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” And for purposes of this Code section, malice in the legal sense “imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result.” Additionally, OCGA § 16-5-24 (a) provides that “[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” And under Georgia law, a person acts maliciously within the meaning of the aggravated-battery statute when “he acts intentionally and without justification or serious provocation.” Importantly, intent is a question for the jury, which is “authorized to consider all other circumstances connected with the act at issue as well as the defendant’s words, conduct and demeanor.”

In this matter, Count 1 of the indictment charged Hillsman with cruelty to children in the first degree by alleging that he “did unlawfully and maliciously cause [J. M.], a child under the age of eighteen (18) years, cruel and excessive physical pain by shaking and striking said [J. M.]...Count 2 of the indictment charged Hillsman with aggravated battery by alleging that he “did unlawfully and maliciously cause bodily harm to [J. M.] by rendering said [J. M.’s] brain, a member of said person’s body useless.. . .’’And as previously discussed, the State presented evidence that J. M. suffered serious injuries from being shaken and that his brain function was impaired as a result of those injuries. Given these particular circumstances, despite Hillsman’s claim that J. M.’s injuries were the result of running while carrying the child and improper CPR, the evidence was sufficient to prove that Hillsman acted maliciously and to authorize the jury to find him guilty beyond a reasonable doubt of cruelty to children in the first degree and aggravated battery.

2. Hillsman also contends that the evidence was insufficient to support his conviction on the charge of aggravated assault, arguing that the State failed to show that the kitchen knife was a deadly weapon. Again, we disagree.

Under OCGA § 16-5-21 (b) (2), aggravated assault is committed when a person “assaults ... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury [.] ” And when a criminal defendant is charged with aggravated assault under OCGA § 16-5-21 (b) (2),

whether the instrument used constitutes “a deadly weapon” or an “object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury” is properly for the jury’s determination.

In this case, Count 3 of the indictment charged Hillsman with aggravated assault by alleging that he “did unlawfully make an assault upon the person of [J. M.], with a knife, a deadly weapon in the manner used, by intentionally cutting the foot of said [J. M.] . . . During the trial, the jury viewed the knife recovered from Hills man’s home and heard the physician’s testimony regarding the puncture wounds on J. M.’s feet and her medical opinion that they were not consistent with someone attempting to remove splinters. Thus, the jury was authorized to infer from the evidence that the knife was used as a deadly weapon.

3. Hillsman further contends that the trial court erred in denying his claim that his trial counsel rendered ineffective assistance by failing to request that the jury be charged on cruelty to children in the second degree as a lesser-included offense of cruelty to children in the first degree. Yet again, we disagree.

In order to prevail on his claim of ineffective assistance of counsel, we apply the two-pronged test established in Strickland u. Washington, which requires Hillsman to show that his trial counsel’s performance was “deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” In addition, there is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. Unless clearly erroneous, this Court will uphold a trial court’s “factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court’s legal conclusions in this regard are reviewed de novo.” With this analytical backdrop in mind, we now turn to Hillsman’s claim of error.

Here, during the charge conference, Hillsman’s trial counsel requested that the trial court instruct the jury as to misdemeanor reckless conduct as a lesser-included offense for both cruelty to children in the first degree and aggravated assault, but he did not request an instruction on cruelty to children in the second degree as a lesser-included offense. At the conclusion of the charge conference, the trial court agreed to instruct the jury on reckless conduct as a lesser-included offense for aggravated assault but refused to do so with regard to cruelty to children in the first degree. And indeed, despite Hillsman’s objection, the trial court instructed the jury accordingly

In his motion for new trial, Hillsman argued that his trial counsel rendered ineffective assistance by failing to request that the court instruct the jury as to cruelty to children in the second degree as a lesser-included offense for cruelty to children in the first degree. But when questioned on this issue during the hearing on Hillsman’s motion, his trial counsel testified that because his defense was focused on the theory that J. M.’s injuries were the result of accidents (i.e., improper CPR and running while carrying J. M., and not any intent to harm the child), he wanted the jury to have the option of convicting on a misdemeanor offense of reckless conduct. Additionally, trial counsel testified that he was skeptical as to whether cruelty to children in the second degree was applicable in this case.

As previously noted, Hillsman contends that his trial counsel’s failure to request an instruction on cruelty to children in the second degree as a lesser-included offense constituted ineffective assistance. But decisions about which jury charges to request are “classic matters of trial strategy.” And here, Hillsman’s defense at trial was that he did not purposefully shake or strike J. M. and that even if his actions did cause the child’s injuries, such actions (improper CPR and running while carrying J. M.), at most, constituted negligence, i.e., reckless conduct. Given that reckless conduct, in certain circumstances, may indeed be a lesser-included offense of cruelty to children, trial counsel’s attempt to have the court instruct the jury in such a manner was reasonable trial strategy. Accordingly, the trial court did not err in denying Hillsman’s claim of ineffective assistance of counsel.

4. Finally, Hillsman contends that the trial court erred in failing to conduct a hearing to determine whether he could represent himself after he informed the court that he was dissatisfied with his trial counsel. Once again, we disagree.

It is well established that both the federal and Georgia Constitutions guarantee a criminal defendant the right to self-representation. And an unequivocal assertion of the right to represent oneself, made prior to trial, “should be followed by a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation.”

Decided June 5, 2017.

Cooper, Shrable & Cooper, Ashley A. Cooper, M. Devlin Cooper, for appellant.

L. Craig Fraser, District Attorney, Cheryl A. Banks, Assistant District Attorney, for appellee.

But in this matter, prior to Hillsman’s own testimony during the hearing on his motion for new trial, there is no evidence in the record that Hillsman ever made an unequivocal request to represent himself. Furthermore, although during the hearing on his motion for new trial, Hillsman claimed that he expressed a desire to fire his counsel at a preliminary hearing, his trial counsel did not recall Hillsman ever asking the trial court to fire or replace him. And the trial court was authorized to believe the testimony of trial counsel and reject any conflicting testimony from Hillsman. Accordingly, the trial court found that Hillsman did not make an unequivocal request to represent himself, and absent such a request, the court did not err in failing to conduct a Faretta hearing or in requiring Hillsman to proceed to trial with his appointed counsel.

For all these reasons, we affirm Hillsman’s convictions and the denial of his motion for new trial.

Judgment affirmed.

Ray and Self, JJ., concur.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

        See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson, 443 U. S. at 319 (III) (B).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

        Adorno v. State, 314 Ga. App. 509, 511-12 (1) (724 SE2d 816) (2012) (punctuation omitted).

        Bizzard v. State, 312 Ga. App. 185, 186 (1) (718 SE2d 52) (2011) (punctuation omitted).

        Garrett v. State, 300 Ga. App. 391, 394 (685 SE2d 355) (2009).

        See Legan v. State, 289 Ga. App. 244, 246-47 (1) (656 SE2d 879) (2008) (holding that evidence was sufficient to support malice element of cruelty to children in the first degree based on physician’s testimony as to the nature of child’s injuries and despite defendant’s claim that the injuries were a result of an accident, including improper CPR); Cochran v. State, 285 Ga. App. 175, 176-77 (645 SE2d 662) (2007) (holding that despite defendant’s testimony that breaking child’s arm was an accident, evidence was sufficient to show defendant acted maliciously and, thus, support his conviction of cruelty to children in the first degree).

        See Miller v. State, 275 Ga. 730, 731-32 (1) (571 SE2d 788) (2002) (holding that when evidence shows that a defendant’s battered victim has suffered a severe injury to his brain, resulting in the loss of normal brain functioning, victim has suffered an aggravated battery); Jackson v. State, 314 Ga. App. 806, 807 (1) (726 SE2d 63) (2012) (same).

        Ellison v. State, 288 Ga. App. 404, 405 (654 SE2d 223) (2007).

        Preston v. State, 300 Ga. App. 433, 434 (685 SE2d 420) (2009) (upholding aggravated-assault conviction when defendant brandished a serrated steak knife and demanded that victim drive him somewhere); Ellison, 288 Ga. App. at 405 (upholding defendant’s aggravated-assault conviction because the jury was allowed to infer that the knife-like shank defendant used constituted a deadly weapon).

       466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see Strickland, 466 U. S. at 687 (III); Ashmid v. State, 316 Ga. App. 550, 556 (3) (730 SE2d 37) (2012).

        Chapman, 273 Ga. at 350 (2); see Cammer v. Walker, 290 Ga. 251, 255 (1) (719 SE2d 437) (2011) (“A claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight.” (punctuation omitted)).

        Sowell v. State, 327 Ga. App. 532, 539 (4) (759 SE2d 602) (2014).

        Jessie v. State, 294 Ga. 375, 377 (2) (a) (754 SE2d 46) (2014); accord Reid v. State, 286 Ga. 484, 487 (3) (b) (690 SE2d 177) (2010).

        See Banta v. State, 282 Ga. 392, 397 (5) (651 SE2d 21) (2007) (noting that reckless conduct may in certain circumstances be a lesser-included offense of cruelty to children).

        See Jessie, 294 Ga. at 377 (2) (a) (finding that trial counsel’s failure to request certain jury instructions and instead pursue an all or nothing strategy did not constitute ineffective assistance); Reid, 286 Ga. at 487 (3) (b) (“Decisions about which jury charges to request are strategic and provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.”).

        See Faretta v. California, 422 U. S. 806, 819 (III) (A) (95 SCt 2525, 45 LE2d 562) (1975) (holding that although not explicitly stated in the Sixth Amendment, the right to self-representation is necessarily implied by the structure of the Amendment); Ga. Const., Art. I, Sec. I, Par. XII (“No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”).

        Crutchfield v. State, 269 Ga.App. 69, 71 (2) (603 SE2d 462) (2004) (punctuation omitted); accord Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990).

        See Young v. State, 329 Ga.App. 70, 72 (1) (763 SE2d 735) (2014) (holding that in deny ing defendant’s ineffective-assistance claim, trial court was authorized to believe trial counsel’s testimony that he advised against a bench trial over defendant’s contrary testimony); Butler v. State, 319 Ga.App. 350, 353 (734 SE2d 567) (2012) (“In its role as factfinder, the trial court was authorized to believe the testimony of trial counsel and reject any conflicting testimony from [defendant].”).

        See 422 U. S. at 819 (III) (A).

        See Crutchfield, 269 Ga.App. at 71 (2) (holding that record demonstrated that defendant did not make an unequivocal request to represent himself, and thus defendant was not entitled to a hearing on the matter of self-representation, even though defendant indicated dissatisfaction with counsel).


text:
    A17A0452.
    CITY OF SANDY SPRINGS BOARD OF APPEALS et al. v. TRATON HOMES, LLC.
    (801 SE2d 599)
   DILLARD, Presiding Judge.

The City of Sandy Springs Board of Appeals and members of the Board (collectively, “the Board”) filed this interlocutory appeal to the superior court’s denial of a motion to dismiss Traton Homes, LLC’s petition for writ of certiorari. The Board maintains that the trial court erred in denying its motion to dismiss when Traton Homes failed to (1) meet the mandatory requirements of OCGA § 5-4-6 (b) for service of the certiorari petition and writ on the Board as the respondent and (2) name the City of Sandy Springs as the opposite party and, thus, separately failed to meet the mandatory requirements of OCGA § 5-4-6 (b) with regard to service upon an opposite party Because we agree that Traton Homes failed to satisfy these mandatory statutory requirements, we reverse.

The record reflects that on December 11, 2015, Traton Homes filed a petition for writ of certiorari in superior court, seeking to appeal the City of Sandy Springs Board of Appeals’s decision to affirm a zoning interpretation that had been made by the community development director for the City of Sandy Springs. The superior court subsequently entered an “Order Sanctioning Petition for Certiorari and Directing Service.” Also on that day, the court issued summonses to the named respondents in certiorari, to wit, the Board and its members.

On January 19, 2016, the Board filed a special appearance and responsive pleading to the petition, asserting that a writ had never been issued; the writ had therefore not been properly served; and Traton Homes had not named the City of Sandy Springs (“the City”), the opposite party, as a defendant, and thus had not served the petition or writ on the City. On the same day, the Board also moved to dismiss the petition for these reasons. Traton Homes responded, maintaining that the court’s order sanctioning the filing was the writ; that alternatively, the summonses issued by the clerk of court were tantamount to the required writ; and that, in any event, it was the clerk of court’s duty to issue the writ, not the petitioner’s. Traton Homes also argued that its failure to name the City as a defendant was not fatal to its petition, and it filed an amended petition to that effect, citing OCGA § 5-4-10 as authority for doing so. Finally, Tra-ton Homes contended that by serving counsel for the City within five days of filing its original petition, the City had been properly served. But the Board replied, countering that the summonses were not tantamount to the required writ, and that the City could not be added as a party through an amendment. The trial court summarily denied the motion and then issued a certificate of immediate review. The Board’s application for an interlocutory appeal followed, which we granted.

At the outset, we note that if a motion to dismiss for lack of jurisdiction is “decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard.” And as for motions to dismiss for insufficient service, a trial court’s ruling “will be upheld on appeal absent a showing of an abuse of discretion.” Of course, when an appeal from the denial of a motion to dismiss presents a question of law, we review the trial court’s decision de novo. With these guiding principles in mind, we turn now to the Board’s contentions on appeal.

1. First, the Board argues that the trial court erred in denying the motion to dismiss when Traton Homes failed to meet the mandatory requirements of OCGA § 5-4-6 (b) for service of the certiorari petition and writ upon the Board. We agree.

Following the 1966 Civil Practice Act, “certiorari proceedings are considered ‘special statutory proceedings[,]’ ” which are proceedings “to which the Civil Practice Act applies ‘except to the extent that specific rules of practice and procedure in conflict . . . are expressly prescribed by law.’ ” And turning to the certiorari-proceedings statute relevant to this appeal, we are mindful that in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” Toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” In summary, when the language of a statute is “plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.”

Turning to the statutes in question, under OCGA § 5-4-3, whenever any party in a case brought before “any inferior judicatory or before any person exercising judicial powers” is dissatisfied with the ultimate decision or judgment, that party “may apply for and obtain a writ of certiorari by petition to the superior court for the county in which the case was tried, in which petition he shall plainly and distinctly set forth the errors complained of.” The statute further provides:

On the filing of the petition in the office of the clerk of the superior court, with the sanction of the appropriate judge endorsed thereon, together with the bond or affidavit, as provided in Code Section 5-4-5, it shall be the duty of the clerk to issue a writ of certiorari, directed to the tribunal or person whose decision or judgment is the subject matter of complaint, requiring the tribunal or person to certify and send up all the proceedings in the case to the superior court, as directed in the writ of certiorari.

Giving further direction, OCGA § 5-4-6 (a) and (b) provide:

(a) All writs of certiorari shall be applied for within 30 days after the final determination of the case in which the error is alleged to have been committed. Applications made after 30 days are not timely and shall be dismissed by the court.
(b) The certiorari petition and writ shall be filed in the clerk’s office within a reasonable time after sanction by the superior court judge; and a copy shall be served on the respondent, within five days after such filing, by the sheriff or his deputy or by the petitioner or his attorney. A copy of the petition and writ shall also be served on the opposite party or his counsel or other legal representative, in person or by mail; and service shall be shown by acknowledgment or by certificate of the counsel or person perfecting the service.

Looking to the plain and unambiguous language of these two statutes, OCGA § 5-4-3 and OCGA § 5-4-6, it is evident that the petition for certiorari filed by the dissatisfied party, the writ of certiorari issued by the superior court clerk, and the sanction of the writ by the superior court judge are separate entities, as we and our Supreme Court have indicated in prior cases. Additionally, in further contradiction of Traton Homes’s contentions, neither the order sanctioning the petition nor the summonses issued in this case satisfied the requirements of a writ of certiorari which, according to statute, must be “directed to the tribunal or person whose decision or judgment is the subject matter of complaint, requiring the tribunal or person to certify and send up all the proceedings in the case to the superior court, as directed in the writ of certiorari.” Indeed, the order directed that (1) the petition for certiorari be filed in the clerk’s office within a reasonable time after sanction, (2) the petition be served on the respondent within five days of filing, (3) a copy of “the petition and writ... also be served on the opposite party,” and (4) the respondent answer the writ within thirty days of service of the “petition and writ upon the [respondent” in accordance with OCGA § 5-4-6. And the summonses directed the Board and its members to “serve upon plaintiff’s attorney” an “answer to the complaint which is herewith served upon you” and warned that the failure to do so could result in a default judgment. Thus, neither the order nor the summonses satisfied the dictates of the statute as applied to the contents of a writ.

Accordingly, although the Board was served with a copy of the petition for certiorari, a sanction of the writ by the superior court, and summonses, there was a failure to comply with the express terms of OCGA § 5-4-3 and OCGA § 5-4-6becauseno writ has been issued and served. And while it is true that it was the clerk’s duty to issue the writ, it is also separately the petitioner or his counsel’s duty to ensure that a writ is served. Thus, Traton Homes cannot completely divorce itself from the failure that occurred in this case. Accordingly, the superior court erred in denying the Board’s motion to dismiss when there was a complete failure to even issue a writ of certiorari, let alone serve same upon the respondent, the Board. And even if we assume, without deciding, that dismissal with prejudice was not required by this error, the failure to comply with the certiorari requirements as to the opposite party, as discussed in Division 2 infra, did require dismissal with prejudice. Consequently, we turn to this second enumerated error.

2. The Board next argues that the trial court erred in denying its motion to dismiss the petition for certiorari when Traton Homes failed to name the City of Sandy Springs as the opposite party, further failing to comply with the mandatory requirements of OCGA § 5-4-6 (b). Once again, we agree.

Looking to the statute at issue, OCGA § 5-4-6 (b) plainly provides not only that a copy of the certiorari petition and writ be served upon the respondent within five days of filing same in the clerk’s office, but additionally that “[a] copy of the petition and writ shall also be served on the opposite party or his counsel or other legal representative, in person or by mail; and service shall be shown by acknowledgment or by certificate of the counsel or person perfecting the service.”

As we have previously explained, “the judicatory body whose decision is appealed is the ‘respondent’ on whom service is required” or, in other words, the “respondent” is “the judicatory body in the dispute,” while the “opposite party” is the “party to a dispute.” The judicatory body/respondent and the opposite party/party to a dispute are, thus, “separate entities with possibly conflicting interests.” And because the Board (as respondent) and the City (as the proper opposite party) are two separate entities with possibly conflicting interests, we reject Traton Homes’s argument that service of the original petition upon the city attorney was sufficient service upon the City as an opposite party when the City was not named as the opposite party—only the Board and its members were named in the original petition.

To that end, our Supreme Court long ago established that “[f]ailure to serve the opposite party with notice of the sanction and of the time and place of hearing renders nugatory and void that which had been commenced as a good suit, but had never been completed and perfected by service.” And when there is no such service upon the opposite party, “there is no suit.” Indeed, as our Supreme Court recognized with regard to certiorari proceedings as far back as 1904, “[w]ithout proper service the court can have no jurisdiction of the case.” Additionally, although OCGA § 5-4-10 provides that “[c]er-tiorari proceedings [are] amendable at any stage, as to matters of form or substance, as to the petition, bond, answer, and traverse ... we have previously held that “a failure to serve the opposite party is not a defect which can be cured by amendment . . . .”

Accordingly, because Traton Homes failed to name the City as an opposite party and, likewise, failed to serve the City with a copy of the petition and with a copy of the writ (which, as explained in Division 1 supra, was never even issued) in the time required by statute, the trial court erred in denying the Board’s motion to dismiss. And that motion should have been granted with prejudice.

Decided June 5, 2017

Wendell K. Willard, for appellants.

Weissman, PC., Martin A. Shelton, Jeffrey H. Schneider, Ashley M. Van der Lande, for appellee.

For all these reasons, we reverse.

Judgment reversed.

Ray and Self, JJ., concur.

       The individually named members are Ted Sandler, Melissa Nodvin, Ron Carpinella, Colin Lichtenstein, Ken Moller, Alvin Johnson, and Eric Johnson.

       OCGA § 5-4-10 provides that “[cjertiorari proceedings shall be amendable at any stage, as to matters of form or substance, as to the petition, bond, answer, and traverse; and a valid bond may by amendment be substituted for a void bond or no bond at all.”

        Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222) (1990); accord Scovill Fasteners, Inc. v. Sure-Snap Corp., 207 Ga. App. 539, 540 (428 SE2d 435) (1993).

        Woodyard v. Jones, 285 Ga. App. 323, 323 (646 SE2d 306) (2007).

        See Atlanta Women’s Health Group, P.C. v. Clemons, 299 Ga.App. 102, 102 (681 SE2d 754) (2009) (“This appeal presents a question of law, which we review de novo.” (punctuation omitted)); In the Interest of P. N., 291 Ga. App. 512, 512 (662 SE2d 287) (2008) (same).

        Hudson v. Watkins, 225 Ga.App. 455, 456 (484 SE2d 24) (1997) (punctuationomitted); see OCGA § 9-11-81 (“This chapter shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of this chapter governing the sufficiency of pleadings, defenses, amendments, counterclaims, cross-claims, third-party practice, joinder of parties and causes, making parties, discovery and depositions, interpleader, intervention, evidence, motions, summary judgment, relief from judgments, and the effect of judgments shall apply to all such proceedings.”).

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (punctuation omitted); accord Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012); Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013).

        Deal, 294 Ga. at 172 (1) (a); State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013).

        See Arizona v. Inter Tribal Council of Arizona, Inc., _ U. S. _, _ (II) (B) (133 SCt 2247, 186 LE2d 239) (2013) (“Words that can have more than one meaning are given content, however, by their surroundings.” (citation and punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”); see also Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (1) (775 SE2d 527) (2015) (“The common and customary usages of the words are important, but so is their context.” (punctuation omitted)).

        Deal, 294 Ga. at 172-73 (1) (a); accord Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013).

        In the Interest of L. T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014) (punctuation omitted); accord Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011).

        Holcomb v. Long, 329 Ga.App. 515, 518 (1) (765 SE2d 687) (2014) (punctuationomitted); see Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

       OCGA § 5-4-3 (emphasis supplied).

       (Emphasis supplied.)

        See Asher v. Cape, 95 Ga. 31, 32 (22 SE 41) (1894) (“It appears from the record, that the petition was presented to the judge of the superior court, that it was sanctioned, and the writ of certiorari ordered to be issued . . . ; that the writ of certiorari issued regularly . . . , that the order sanctioning the issue of the writ was entered upon, and the writ itself attached to, the petition for certiorari[.]”); Goldstein v. Smith, 141 Ga. App. 493, 494 (2) (233 SE2d 864) (1977) (“[OCGA § 5-4-3].. .requires the petition to be filed in the office of the clerk of the superior court, with the sanction of the judge of the circuit endorsed thereon, in order for the clerk to issue the writ directed to the inferior judicatory thereby requiring that court to certify and send up all the proceedings in the cause to the superior court as directed in the writ of certiorari.”); Smith v. City of Washington, 4 Ga. App. 514, 514-15 (61 SE 923) (1908) (“The petition for certiorari was duly sanctioned by the judge of the superior court, and the petition, with sanction of the judge endorsed thereon, was delivered by [appellant’s] attorney to the clerk of the superior court.... It appears from the record that the clerk of the superior court promptly and properly issued the writ, directed to the mayor of the City of Washington, bearing teste in the name of the judge of the superior court of the circuit, entered the case upon the docket, copied the petition and the sanction of the judge, attached the writ of certiorari, and kept the same in his office until April 29, when they were handed by him to the petitioner’s counsel, upon counsel’s request to be furnished with papers in those cases which he represented.”).

       OCGA § 5-4-3.

       (Emphasis supplied.)

       (Emphasis supplied.)

        See OCGA § 5-4-3 (providing that a writ of certiorari be “directed to the tribunal or person whose decision or judgment is the subject matter of complaint, requiring the tribunal or person to certify and send up all the proceedings in the case to the superior court, as directed in the writ of certiorari”).

        See Neal v. Neal, 122 Ga. 804, 805 (1) (50 SE 929) (1905) (“[T]he writ of certiorari itself is issued by the clerk of the superior court under the sanction of the judge [.] ”); Gregory v. Daniel & Son, 93 Ga. 795, 796 (2) (20 SE 656) (1894) (“The writ of certiorari ought to have been issued and the case made returnable to the December term, 1892, of Burke superior court, but the clerk failed to issue the writ. At the term last mentioned, the court passed an order directing the writ of certiorari to issue, and that the same stand for trial at the next term of the court. The writ was accordingly issued .... ”); see also Cobb County v. Herren, 230 Ga. App. 482, 484 (496 SE2d 558) (1998) (“Absent the sanction, the clerk of the superior court has no authority to either file the application for certiorari or issue the writ. Sanctioning is an integral part of the application for certiorari and without it, the certiorari process cannot move forward.” (citation omitted)); Bellew v. State Highway Dep’t, 127 Ga. App. 301, 302 (1) (193 SE2d 202) (1972) (“[An applicant] may file [an application for certiorari] with the clerk of superior court, after sanction by the judge, and the clerk will thereupon be required to issue a writ of certiorari. But, absent sanction, the clerk has no authority to file the application or issue the writ of certiorari.” (citation omitted)); McElhannon v. State, 112 Ga. 221, 224 (37 SE 402) (1900) (“It makes no practical difference, we think, whether the judge of the superior court issues the writ of certiorari himself or sanctions the petition and orders the clerk to issue it. Certainly the issuing of the writ by the judge necessarily involves a sanction of the petition.”).

        See OCGA § 5-4-6 (b) (“The certiorari petition and writ shall be filed in the clerk’s office within a reasonable time after sanction by the superior court judge; and a copy shall be served on the respondent, within five days after such filing, by the sheriff or his deputy or by the petitioner or his attorney. A copy of the petition and writ shall also be served on the opposite party or his counsel or other legal representative, in person or by mail; and service shall be shown by acknowledgment or by certificate of the counsel or person perfecting the service.”); Smith, 4 Ga. App. at 516 (2) (“The clerk of the superior court performed his full duty in the premises as clerk when he issued the writ, attached it to the petition, made a copy of the petition and the writ, and docketed the case. Furthermore, it was the duty of the petitioner or of his counsel to see that the mayor was served with the copy of the petition and with the writ of certiorari.”).

        See Fisher v. City of Atlanta, 212 Ga. App. 635, 635-36 (442 SE2d 762) (1994) (“It cannot readily be determined why [OCGA] § 5-4-6 (b) requires ‘the respondent’ (the inferior judicatory) to be served, since OCGA § 5-4-3 fully and expressly provides for ‘service’ by the clerk of court of the writ of certiorari on the inferior judicatory .... Even though the [respondent] received service of the writ from the superior court clerk under OCGA § 5-4-3, we must hold that the petition was properly dismissed for lack of service under [OCGA] § 5-4-6 (b).”); cf. Johnston v. Ga. Public Serv. Comm’n, 209 Ga. App. 224, 225 (433 SE2d 65) (1993) (“Considering the fact that the mistaken designation [of a nonexistent transcript] in the notice of appeal could have been easily discovered if some attention had been paid to the matter, and that the earliest inquiry about the status of the appeal did not occur until several months after the notice of appeal had been filed, the trial court was also authorized to find that the delay was inexcusable and caused by the appellants.”).

        See Fisher, 212 Ga. App. at 636 (“Even though the [respondent] received service of the writ from the superior court clerk under OCGA § 5-4-3, we must hold that the petition was properly dismissed for lack of service under [OCGA] § 5-4-6 (b).”); cf. Bass v. City of Milledgeville, 121 Ga. 151, 153 (48 SE 919) (1904) (“[T]he failure to deliver the writ and a copy of the petition to the officer whose decision is sought to be reviewed... will not... result in a dismissal of the proceeding [when] it is shown that the failure was not due to the fault or negligence of the plaintiff in certiorari. [When] this appears, an order will be granted allowing further time within which to serve.”).

        Cf. City of Dunwoody v. Discovery Practice Mgmt., Inc., 338 Ga. App. 135, 136-37 (1) (789 SE2d 386) (2016) (discussing writ and petition as two separate items, and noting that ‘the failure to deliver, within the time required by the statute, the petition and writ to the officer whose decision is under review . . . will not render the proceeding void, [but that it] is a mere irregularity which can be cured either by a waiver by the officer himself, evidenced by the filing of his answer, or by an extension of time by the judge of the superior court” (citation and punctuation omitted) (emphasis supplied)).

      (Emphasis supplied.)

        Fisher, 212 Ga.App. at 635.

        Id. at 636 (emphasis supplied); see also Hudson, 225 Ga. App. at 456 (2) (noting that “the respondent” is “[t]he tribunal whose decision is being reviewed”).

        Fisher, 212 Ga.App. at 636 (emphasis supplied).

        Id.; see also Hudson, 225 Ga. App. at 456 (2) (“[T]he respondent, is not, however, the ‘opposite party’ referred to in OCGA § 5-4-6 and also required to be served.”).

        See Fisher, 212 Ga.App. at 636 (“Appellant.. .contends service of the petition on the City of Atlanta was service on the City of Atlanta Civil Service Board, but we decline to so hold as a matter of law. The superior court apparently found that the attorney for the City of Atlanta did not accept or waive service on the Civil Service Board as ‘respondent.’ Under the circumstances, these are separate entities with possibly conflicting interests, as one is a party to a dispute and the other is the judicatory body in the dispute.”); see also id. at 636 (on motion for reconsideration) (“[Because] appellant had not named the respondent (Civil Service Board) as a party on December 7 when he served the City of Atlanta (employer) and [because] we hold that service on the City of Atlanta (employer) is not service on the Civil Service Board (‘respondent’/ tribunal) as a matter of law, it logically follows that the . . . service on the City of Atlanta (employer) could not have been intended by appellant or accepted by the City of Atlanta (employer) as service on the Civil Service Board (respondent).”); cf. Pope v. Bd. of Comm’r of Fulton Cty., 248 Ga. App. 201, 202 (2) (546 SE2d 333) (2001) (“Fisher was correctly decided, as the Civil Service Board did not initiate or prosecute the proceedings before it, but sat solely as a judicial dec is ion-maker in a dispute between the City and a civil servant. In this case, however, the Board of Commissioners performs a more expansive role. ... In such circumstances, it is the Board of Commissioners, as the governing authority, which is the proper defendant in certiorari. Here, . . . unlike Fisher, the superior court was petitioned to review a quasi-judicial decision of the Board of Commissioners of Fulton County under OCGA § 48-5-295 (b).”).

        Bass, 121 Ga. at 152-53; accord Hudson, 225 Ga. App. at 456 (2).

        Bass, 121 Ga. at 153; accord Hudson, 225 Ga. App. at 456 (2); see O’Keefe v. Cotton, 102 Ga. 516, 516 (27 SE 663) (1897) (syllabus by the court) (“Notice to the opposite party of the sanction of a writ of certiorari and of the time and place of hearing, at least ten days before the sitting of the court to which the same shall be returnable, being indispensable in the prosecution of a petition for certiorari, a failure to give such notice renders the entire proceeding void [.] ”); Franke v. May, 86 Ga. 659, 661-62 (12 SE 1068) (1891) (“[T]he statute requires written notice, and doubtless it means what it says. . . . The court committed no error in dismissing the certiorari at the hearing because the statutory notice had not been given. For the lack of such notice, there was no proper case pending in the court.”); see also Hudson, 225 Ga. App. at 456 (1) (“It is appropriate for the court, without a motion from the party improperly served, to consider whether the petition and writ are properly before it.”).

        Jones v. Gill, 121 Ga. 93, 97 (48 SE 688) (1904).

        Hudson, 225 Ga. App. at 457 (2). But cf. Jones, 121 Ga. at 97 (“If there has been proper service, the plaintiff in certiorari should be allowed to amend his return so as to properly show that fact.” (emphasis supplied)); Pope, 248 Ga. App. at 201-02 (1) (holding that, although case was improperly dismissed for failure to name the County as the opposite party (when County was not the opposite party and, thus was neither required to be named nor entitled to service), petitioner was properly permitted amendment to name Board of Commissioners as the opposite party when, under specific facts of the case and separately applicable statutory provisions, Board was both the respondent and the opposite party, and Board had already previously been named as the respondent and had been timely served as same).

        See Hipp v. City of East Point, 105 Ga. App. 775, 776 (125 SE2d 672) (1962) (“[T] he service upon the opposite party should ‘also’ be made within five days after the filing of such writ in the clerk’s office. No service, or written waiver, appears in the record, and the judgments of the superior court dismissing the writ of certiorari and denying the motion to reinstate such writ of certiorari must be [ajffirmed.”).