author: Ray, Judge.

text:
    A13A1811.
    BRIGHT et al. v. SANDSTONE HOSPITALITY, LLC et al.
    (755 SE2d 899)
   Ray, Judge.

This appeal arises from a premises liability claim filed by Joe Wayne Bright against Sandstone Hospitality, LLC, and Wingate International Inns, Inc. Bright sued after he sustained injuries from a fall that occurred while he was a guest at a hotel owned by Sandstone and franchised by Wingate. The trial court, in two orders, granted Sandstone and Wingate’s respective motions for summary judgment. Bright appeals, raising 11 enumerations of error. For the reasons that follow, we affirm as to Wingate, and reverse as to Sandstone.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Punctuation, footnotes and emphasis omitted.) Dew v. Motel Properties, 282 Ga. App. 368, 368 (638 SE2d 753) (2006). Such specific evidence, however, even if “meager and indefinite [maybe] sufficient to establish the necessary standard as against a motion for [summary judgment] since this slight evidence must be considered in the light most favorable to plaintiffs.” Covil v. Robert & Co. Assocs., 112 Ga. App. 163, 167 (1) (144 SE2d 450) (1965). We conduct a de novo review of a trial court’s grant of summary judgment. Dew, supra.

Viewed in favor of Bright, the evidence shows that on August 11, 2008, Bright checked into a Wingate Inn. The next morning, he took a bath. When he attempted to rise from the tub using the grab bar to pull himself up, the bar pulled loose from the wall and he fell, striking his head and injuring his lower back, necessitating surgery. Bright sued Sandstone and Wingate, and now appeals from the trial court’s grants of summary judgment in the defendants’ favor.

1. We first address the grant of summary judgment to Wingate.

(a) Apparent agency. Bright contends that the trial court erred in finding that no genuine issue of material fact existed as to whether Wingate could be found responsible for any actions or inactions by Sandstone under an apparent agency theory.

In order to recover under a theory of apparent or ostensible agency, a plaintiff must establish three elements: (1) that the alleged principal held out another as its agent; (2) that the plaintiff justifiably relied on the care or skill of the alleged agent based upon the alleged principal’s representation; and (3) that this justifiable reliance led to the injury.

(Citation omitted.) Butkus v. Putting Greens Intl. Corp., 222 Ga. App. 661, 663 (475 SE2d 693) (1996).

Bright argues that Wingate, as the principal, held out Sandstone as its agent. In support of his argument, Bright points to Wingate’s Standard of Operations Manual at Section 901.1, which provides that ‘Wingate by Wyndham standard exterior signage shall be incorporated into all projects[,]” and at Section 901.0, which provides that “[s]ignage must be approved by Wingate Inns International, Inc.. .. prior to installation of all exterior signs.” In an affidavit, Bright argues that he justifiably relied on Wingate’s care and skill, and that he chose the hotel because “Wingate had a national reputation for safety, security and cleanliness.”

We have held that merely displaying signs or a trademark may be insufficient to establish an apparent agency relationship, Texaco, Inc. v. Youngbey, 211 Ga. App. 789, 790 (440 SE2d 533) (1994), and that a failure to post a sign stating that someone other than the franchisor owns and operates a business is insufficient, standing alone, to show apparent agency. See Anderson v. Turton Dev., 225 Ga. App. 270, 275 (2) (b) (483 SE2d 597) (1997). Further, “[t]o establish the required elements [of apparent agency],... it is not enough that the plaintiff believe that an agency relationship exists.” (Citation omitted; emphasis in original.) Butkus, supra.

Bright relies upon Watson v. Howard Johnson Franchise Systems, 216 Ga. App. 237, 237 (453 SE2d 758) (1995). In Watson, a hotel displayed “HoJo Inn by Howard Johnson” signs, and the franchise agreement provided that all signage required prior approval from Howard Johnson. Further, the franchisee was required to post a sign saying it was independently operated, but it had not done so, and Howard Johnson was aware of this. Id. The Watson court found that a jury issue existed as to whether an apparent agency relationship existed. Id.

In the instant case, by contrast, there was clear testimony from Amisha Patel, who was employed as a general manager and director of sales with Sandstone, that when Bright’s fall occurred, a sign at the front desk of the hotel stated that the hotel was “owned and operated by Sandstone Hospitality, LLC.” See McGuire v. Radisson Hotels, Intl., 209 Ga. App. 740, 743 (2) (435 SE2d 51) (1993) (physical precedent only) (where partnership operated hotel through franchise from Radisson, was authorized by franchise agreement to display Radisson signs, and posted no sign indicating that anyone other than Radisson owned and operated the hotel, no apparent agency found because partnership — rather than Radisson as the principal — was solely responsible for holding itself out as Radisson). Given the foregoing, Bright cannot meet the three-prong Butkus test, supra. As there is no genuine issue of material fact, the trial court did not err in concluding as a matter of law that there was no apparent agency relationship between Wingate and Sandstone.

(b) Third-party beneficiary. Bright argues that because Wingate undertook to perform quality assurance inspections of its franchisees’ properties, it assumed a duty to exercise ordinary care toward him as a hotel guest.

Wingate’s franchise agreement at Section 3.9 requires franchisees to “acknowledge [their] participation in [Wingate’s] quality assurance inspection program (including unannounced inspections) [.]” Further, Wingate’s manual requires that there be a shower grab bar capable of supporting a 300-pound sustained weight. Dan Olsen, Wyndham Hotel Group’s director of quality assurance and conversions, testified that his department was tasked with inspecting only the cosmetic aspects of a hotel—such as whether the shower grab bar was rusty or unclean—and not its safety or function. He testified that he did not know what, if any, department inspected the grab bars for safety or to enforce the 300-pound sustained weight requirement.

Bright essentially is arguing that he is a third-party beneficiary of the agreement between Sandstone and Wingate that provides for inspections. OCGA § 9-2-20 (b) provides: “The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” However

in personal injury cases, an injured party may not recover as a third-party beneficiary for failure to perform a duty imposed by a contract unless it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect him from physical injury.

(Citations and punctuation omitted.) Anderson v. Atlanta Committee for the Olympic Games, 273 Ga. 113, 117 (4) (537 SE2d 345) (2000). An examination of the franchise contract between Sandstone and Win-gate shows no intent to benefit third persons such as hotel guests. The franchise agreement, under the heading, “Your Improvement and Operating Obligations” states: “We will not be liable to your . . . guests, others or you on account of. . . our inspection of the Facility before, during, or after your initial or any subsequent renovation.” While the “Operations” section of the agreement makes no mention of liability, a blanket statement applicable to the entire agreement provides: “This Agreement is exclusively for the benefit of the parties. There are no third party beneficiaries.” Based on the foregoing, we conclude that Bright was not a third-party beneficiary to the agreements between Sandstone and Wingate, and the trial court correctly granted summary judgment to Wingate.

2. We next address the grant of summary judgment to Sandstone.

Owners or occupiers of land are liable to their business customers for injuries caused by the owners’ failure to exercise ordinary care in keeping the premises and approaches safe. However, they are not insurers of their safety. In order to recover, the invitee must prove that (1) the defendant had actual or constructive knowledge of the hazard, and (2) the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the defendant’s control. The basis for the owner’s liability is the owner’s superior knowledge of the existence of a condition that could subject the invitee to an unreasonable risk of injury.

(Punctuation and footnotes omitted.) Bonner v. Southern Restaurant Group, 271 Ga. App. 497, 499 (610 SE2d 129) (2005). See also OCGA § 51-3-1. “The mere fact that an incident occurred does not create a presumption of negligence.” (Footnote omitted.) Dew, supra at 371 (1). “The liability of a proprietor under OCGA § 51-3-1 which results from failure to keep the premises safe always depends on notice of the danger except where notice is presumed, as in cases of defective construction.” (Citation and punctuation omitted.) Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812, 814 (1) (318 SE2d 235) (1984).

Bright contends that Sandstone had notice of problems with the hotel grab bars. He also asserts that in instances of defective construction, such as this is alleged to be, an owner is liable regardless of whether it knew of the defect or not.

(a) Actual or constructive knowledge. As noted above, the first prong of a premises liability analysis is whether a defendant had actual or constructive knowledge of the hazard. Bonner, supra. Bright’s expert, Andrew Smith, stated that “[t]here is no visual or tactile warning that the [grab] bar is not solidly attached[.]”

Relying on Smith’s testimony, Sandstone contends that it had no notice of any defect and that absent such knowledge, it cannot be required to discover the defect nor can knowledge of the defect be imputed to it. In a deposition, Patel, Sandstone’s general manager, testified that she had no knowledge of any instances of the grab bars coming loose, needing adjustment, or having to be replaced, but when asked by counsel if, other than the incident involving Bright, there had been any repairs to any grab bar, she testified that since Sandstone took over the hotel in 2001, “[t]o my knowledge, I think there had been maybe one other one that we did repair” although she was not sure when, and that Sandstone also replaced a cracked wall — not the wall on which the grab bar was installed — but she was unsure whether the grab bar had been reinstalled. Given that there is some evidence from Patel’s testimony from which a jury could find that a grab bar had to be repaired previously, see Covil, supra, a jury question exists as to Sandstone’s exercise of ordinary care. See Valentin v. Six Flags Over Georgia, 286 Ga. App. 508, 509-512 (649 SE2d 809) (2007) (where plaintiff slipped on rubber mat because it had mildew underneath, even though defect “is in some way hidden, camouflaged or intrinsically unsafe, the question of ordinary care in inspecting the premises should be one for the jury”) (citation and punctuation omitted.)

(b) Defective construction. Bright’s expert, Smith, stated in his report that the grab bar in the instant case was a “completely concealed flaw in the construction” and in his affidavit stated that the bar did not fail because of wear and tear. He also opined that the grab bar was defectively installed, and that the use of plastic, threaded inserts to attach the bar to the wall showed that the installation was improper. Smith additionally stated that installation of the grab bar was not compliant with applicable safety codes and listed the particular code sections at issue.

Under OCGA § 51-3-1, a premises owner has a duty to exercise ordinary care to keep the premises safe for invitees. In cases of defective construction, the owner is presumed to have knowledge of the danger. Freyer v. Silver, 234 Ga. App. 243, 245 (2) (507 SE2d 7) (1998).

Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.

Avery v. Cleveland Avenue Motel, 239 Ga. App. 644, 645-646 (2) (521 SE2d 668) (1999) (where handrail on hotel stairway pulled loose when plaintiff grabbed it to stop herself from falling, summary judgment inappropriate on issue of hotel’s constructive knowledge because there was evidence that hotel owner lacked reasonable inspection procedure). See Wilkerson v. Charles W. Bell & Assocs., P.C., 205 Ga. App. 779, 780 (423 SE2d 711) (1992) (where plaintiff asserts improper construction amounting to negligence, landowner may be liable whether or not it knew of defects in original construction). See also Kauffman v. Eastern Food & Gas, 246 Ga. App. 103, 105 (2) (539 SE2d 599) (2000) (owner has duty of ordinary care to protect invitee from unreasonable risk of harm where owner has superior knowledge and has duty to inspect premises for possible dangerous conditions of which owner does not have actual knowledge). But see Ferguson v. Premier Homes, 303 Ga. App. 614, 615 (695 SE2d 56) (2010) (where worker was injured when pull-down attic staircase detached from ceiling and fell, because there was no evidence of negligent construction or installation and because staircase complied with building codes, owner and builder of premises had no duty to inspect).

Here, Patel testified that hotel owners should inspect guest rooms for hazards or defects that could cause injury. She stated that the hotel had a regular maintenance schedule, but that during her time as general manager, the grab bars were never tested to see if they could sustain a 300-pound load as provided by franchisor Wingate’s operations manual. Sandesh Patel, one of the owners of Sandstone, testified that neither he nor Sandstone had the building inspected for safety issues prior to operating it as a hotel.

Given this, there is evidence from which a jury could find that Sandstone lacked reasonable inspection procedures and thus had at least constructive knowledge of the defect. Kauffman, supra at 105 (2). Thus, because questions of fact remain for jury determination, the trial court erred in granting summary judgment to Sandstone.

(c) Given our determinations in Division 3 (a) and (b), we need not address Bright’s other contentions of error as to Sandstone.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Miller, J., concur.

Decided March 26, 2014

Reconsideration denied April 14, 2014.

Hubert E. Hamilton HI, Patrick A. Cruise, for appellants.

Crim & Bassler, Harry W. Bassler, Jason D. Darneille, Baker, Donelson, Bearman, Caldwell & Berkowitz, Steven R. Press, Joshua N. Tropper, for appellees.

       Bright’s wife, Mary T. Bright, asserted a claim for loss of consortium.

       Bright’s appellate brief fails to comply with Court of Appeals Rule 25 (c) (1), which requires that the “sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.” We will address those enumerations, to the degree we can discern them, if they are supported by citation of authority or argument. Norman v. Doby, 321 Ga. App. 126, 128 (1) (741 SE2d 293) (2013). We will not cull the record in search of instances of error. Brown v. Mowr Enterprises, 322 Ga. App. 93, 93 (742 SE2d 173) (2013).

       Bright specifically disclaims that Sandstone was an actual agent for Wingate. We note that the franchise agreement between Sandstone and Wingate provides that in the event of any finding of apparent agency, Sandstone must indemnify Wingate.

       Wyndham is the parent company of Wingate.

       Wingate’s manuals governing standards of operation contain similar language.

       Sandstone counters that where, as here, “a structure has been built by a predecessor in title of the landlord, the landlord can he held responsible to his tenant for a defect in original construction only if he knew or by the exercise of reasonable care should have known of the defect [b]efore the tenancy was created.” (Citations omitted.) Uniroyal, Inc. v. Hood, 588 F2d 454, 464 (5th Cir. 1979). We note that courts have typically applied this exception only in cases involving “egregious structural defects.” (Footnote omitted.) Rainey v. 1600 Peachtree, LLC, 255 Ga. App. 299, 301, n. 11 (565 SE2d 517) (2002), citing Flagler Co. v. Savage, 258 Ga. 335 (368 SE2d 504) (1988) (plaintiff fell down 70-foot precipice adjacent to parking lot that was concealed by foliage and had no protective structure or warning signs); Spence v. C & S Nat. Bank, 195 Ga. App. 294 (393 SE2d 1) (1990) (employee fell through floor built of unreinforced pressboard). Bright points us to no authority, nor do we find any, indicating that in the instant circumstances, a hotel qualifies as a “landlord” and a hotel guest qualifies as a “tenant” such that this legal theory would apply. Further, as we determined in Division 2 (a), there is a fact question as to whether Sandstone exercised reasonable care.


source: Caselaw Access Project

license: Public Domain

text:
    A13A1972.
    COST MANAGEMENT GROUP, INC. et al. v. BOMMER.
    (755 SE2d 537)
   Ray, Judge.

This case has its genesis in competing lawsuits between former business associates. One suit was in federal court, and the other was in the Superior Court of Fulton County. In the federal suit, Daniel Bommer sued his erstwhile business partners, Steven Gareleck and George Remington Reynolds, in their individual capacities. In the superior court suit, companies controlled by Gareleck and Reynolds — Cost Management Group, Inc., Partnertel, Inc., and Telcentrex, LLC (collectively “CMG”) — sued Bommer. This case is before us on appeal from the superior court’s grant of partial summary judgment to Bommer.

CMG first contends that the superior court erred in finding that its claims related to allegations that Bommer was wrongly competing with them through his company, Enhanced Billing Services (“EBS”), were collaterally estopped by the federal action. CMG also argues that the trial court erred in determining that the EBS-related claims were compulsory counterclaims in the federal action, thus barring further litigation in superior court. For the reasons that follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant 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.

(Footnote omitted.) Coffee Iron Works v. QORE, Inc., 322 Ga. App. 137, 137 (744 SE2d 114) (2013).

The evidence shows that in January 2006, Bommer’s company, Telesis Management Corporation, merged with Partnertel and Telcentrex, companies controlled by Gareleck and Reynolds, to form CMG. These were all telecommunications companies. Bommer also owned another company, EBS, which handled hospital billing and which was not part of the merger that created CMG. The merger that created CMG also involved a Stockholders’ Agreement and a Securities Exchange Agreement (“SEA”). Pursuant to Section 6.5 of the SEA, Bommer agreed that beginning January 16, 2006, he would not solicit any current or prospective customers of CMG in a way that directly competed with CMG.

However, after some disputes over whether Bommer was impermissibly using EBS resources and wrongly competing with CMG, Gareleck and Reynolds invoked a buy-sell provision in the Stockholders’ Agreement called a Special Purchase Notice (“SPN”) and, inter alia, offered to purchase Bommer’s shares in CMG. The SPN provided that Bommer would be paid $1,728,000 when the transaction closed, and an additional $192,000 pursuant to a promissory note if he entered into and did not violate a two-year noncompetition agreement and a two-year nonsolicitation agreement. Specifically, the SPN at Section 3 (a), under the heading entitled “Additional Terms,” required Bommer’s resignation and at Section 3 (b) provided that Bommer “will not directly or indirectly compete with the business of the Corporation by engaging in any business or enterprise that engages in telecommunication agency and resale services for telecommunications carriers anywhere within the United States.”

In September 2008, Bommer submitted his resignation as a CMG officer and director, tendered his shares, and requested his $1,728,000.

The District Court Litigation

When Bommer did not receive payment, on March 23, 2009, he sued Gareleck and Reynolds in their individual capacities in the United States District Court for the Northern District of Georgia, seeking to enforce the SPN. The complaint alleges, inter alia, breach of contract, and contends that there was a binding contract as to the SPN and the additional terms, including the noncompetition agreement. Gareleck and Reynolds responded by contending that there was no contract, alleging fraud, unclean hands, and failure of conditions precedent. At the hearing before the district court, counsel for Gareleck and Reynolds argued that the SPN was neither final nor enforceable because Bommer had met their offer with a counteroffer. In discussing Bommer’s alleged counteroffers, counsel for Gareleck and Reynolds told the court, “[T]hose deal documents... contained all kinds of different terms from the SPN, but most importantly, there was no non-competition agreement... [Bommer] could not agree to a non-competition agreement, and so that issue just died.”

The district court entered an order on April 26, 2011. In that order, the court stated that the issues before it were as follows: “the principal issue to be decided, under the facts of the case, is whether a binding contract was established between the parties. Also, the supplemental issue to be decided is whether the parties ever reached an agreement on the ‘additional terms’ of the SPN.” (Emphasis supplied.) The court then defined the SPN’s “additional terms” — that is, the noncompetition portion of the agreement — in part, as follows: “(1) Bommer would resign as CMG’s officer and director; [and] (2) Bommer would execute a specified two-year non-competition and non-solicitation agreement (‘restrictive covenants’), subject to review by counsel.” (Emphasis supplied.)

The court determined that a binding contract was established as to the SPN itself, but that “subsequent negotiations between the parties concerned the ‘additional terms.’ In this regard, the court found that the parties never reached a binding contract, mainly because [Bommer] never agreed to the two-year non-competition provision of the SPN” (Emphasis supplied.) The district court then determined that Bommer was entitled to recover $1,728,000 for the stock he tendered, but could not recover the $192,000 that was contingent on the “additional terms” because Bommer “never complied with the ‘additional terms’ of the SPN.”

It is this potentially unclear wording — that is, the court’s initial finding that Bommer never agreed to the “additional terms” versus its later statement that he “never complied with the additional terms” that underlies the instant dispute.

The Appeal to the United States Court of Appeals for the Eleventh Circuit

Reynolds and Gareleck appealed this ruling to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit’s opinion notes that the district court found that Bommer “never complied with the SPN’s ‘Additional Terms.’ ” However, the Eleventh Circuit also writes that Gareleck and Reynolds

especially draw our attention to the matter of no competition. They focus on one sentence in particular: “The final terms of the non-competition agreement will be subject to review by each party’s counsel and shall conform to the requirements of applicable law.” But we observe that [Bommer], by his acceptance, agreed that he would execute a non-competition agreement for a period of two years to bar his competition anywhere in the United States. We strongly doubt that [Bommer] was free to compete once he accepted the SPN.

(Footnote omitted; emphasis supplied.) Bommer v. Reynolds, 465 Fed. Appx. at 879. In a footnote, the Eleventh Circuit notes that “[w]e are not asked in this suit to enjoin [Bommer] from competing.” Id. at 879, n. 3. The Eleventh Circuit goes on to say that

although the SPN states that the “final terms of the non-competition agreement will be subject to review by each party’s counsel and shall conform to the requirements of applicable law,” we believe that the essential terms — time, area, and so on — had already been agreed to in the SPN; formalities and details remained to be worked out. In addition, as we understand the law, the parties to a contract can agree to bind themselves by that contract to negotiate in good faith and to work out within an agreed framework some terms that remain open____The parties made an enforceable contract although it remained executory in part.

(Emphasis supplied.) Id. at 879-880. The Eleventh Circuit then affirmed the district court’s grant of summary judgment to Bommer.

The Fulton County Superior Court Litigation

One month after Bommer sued Gareleck and Reynolds in district court, on April 24, 2009, CMG — rather than Gareleck and Reynolds — sued Bommer in Fulton County Superior Court. The suit alleged, inter alia, breach of fiduciary duty, usurpation of corporate opportunities, unfaithful agent, conversion/theft of corporate property, fraud, and breach of the SEA, which is the agreement the parties signed in 2006 when their companies merged. Neither the initial nor the amended complaint mentions the SPN, which was the subject of the federal litigation.

On January 13, 2010, CMG filed a consent motion seeking a stay in the superior court proceeding until the district court ruled on pending cross-motions for summary judgment, stating that “all Parties agree that the rulings . . . may impact the Parties’ ability to resolve the Fulton Litigation.” The superior court granted that motion. After the conclusion of the federal action, the stay was lifted, and Bommer moved for partial summary judgment on all of CMG’s claims related to his company, EBS, arguing that the federal action decided those issues and asserting collateral estoppel. The trial court granted that motion, finding that CMG was collaterally estopped and also that its claims were barred because they were compulsory counterclaims in the federal action. This appeal ensued.

1. CMG first argues that the trial court erred in determining that its claims in the superior court litigation were barred by collateral estoppel. We agree.

[C]ollateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim —• so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim. Furthermore, collateral estoppel only precludes those issues that actually were litigated and decided in the previous action, or that necessarily had to be decided in order for the previous judgment to have been rendered. Therefore, collateral estoppel does not necessarily bar an action merely because the judgment in the prior action was on the merits. Before collateral estoppel will bar consideration of an issue, that issue must actually have been decided.

(Citation omitted; emphasis supplied.) Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545, 546 (629 SE2d 260) (2006).

In Bommer’s motion for summary judgment before the superior court, the grant of which underlies the instant case, he contends that CMG is collaterally estopped by the federal action from pursuing its claims regarding his alleged use of EBS to violate the noncompetition portion of the SPN. Bommer contends that the federal action decided, on the merits, that he “was not entitled to recover the note payment of $192,000.00 as he never complied with the non-compete provision contained in the SPN.” (Emphasis supplied.) Thus, Bommer argues, “collateral estoppel bars [CMG’s] attempts to collect any additional monies for the breach of the noncompete from Bommer” and he was thus entitled to summary judgment as a matter of law. The superior court agreed, but we do not.

As is abundantly clear from the facts laid out above, the issues before the federal court were whether a binding agreement had been reached as to the SPN and further whether a binding agreement had been reached as to the SPN’s “additional terms” regarding noncom-petition. Counsel for Gareleck and Reynolds in the federal action mentioned Bommer’s alleged impermissible competition with CMG through his operation of EBS, but only in the context of explaining the events leading up to the contract dispute over the SPN. Neither the transcript nor the pleadings from the federal action in the record before us show that the issue of whether Bommer violated the noncompetition portion of the SPN — which Gareleck and Reynolds contended was not a binding contract — or whether Bommer violated the SEA or general common law duties was ever squarely before the district court. The federal courts did not rule on the issues raised in CMG’s superior court action as to whether Bommer impermissibly competed or conducted other wrongful actions through EBS.

“[F]or collateral estoppel to apply, a party must have had a full opportunity to litigate the issue in question during the prior action. Collateral estoppel will not bar consideration of an issue that has not actually been decided.” (Citation and punctuation omitted; emphasis supplied.) Ga. Neurology & Rehabilitation v. Hiller, 310 Ga. App. 202, 205 (1) (712 SE2d 611) (2011).

Here, the superior court, in support of its finding of collateral estoppel, cites QoS Networks Ltd. v. Warburg, Pincus & Co., 294 Ga. App. 528 (669 SE2d 536) (2008) for the proposition that even if the noncompetition issue and other EBS-related claims were not dispositive of the federal action,

[a] ruling is not dictum merely because the disposition of the case is or might have been made on some other ground. Where a case presents two or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case is an authoritative precedent as to every point decided, and none of such points can be regarded as having merely the status of a dictum.

(Citations omitted.) Id. at 532-533 (1) (c).

Relying upon QoS Networks, the superior court then found that because the federal action “discussed” the restrictive covenant of the SPN, it “is still considered adjudicated by the Federal Litigation under Georgia law.” This finding is incorrect because, as discussed above, the federal litigation decided only that Bommer failed to comply with his agreement in the SPN to later agree to a noncompetition agreement. The federal litigation in no way decided that Bommer had failed to comply with any noncompetition agreement in the SPN, the SEA or imposed upon him by any other means.

In a case analogous to the instant action, this Court determined that even where the Eleventh Circuit implicitly ruled that any subsequent breach of an employment contract would not affect ownership of a trade name, because the court “did not address whether [appellee] had, in fact, committed such a breach . . . the federal courts did not actually decide the issue of whether [appellee] breached the employment contract, [so appellant] is not collaterally estopped from litigating it in state court.” Hinely v. Alliance Metals, Inc. of Atlanta, 285 Ga. App. 230, 235 (1) (645 SE2d 584) (2007).

Here, the federal action found only that Bommer had not yet agreed to refrain from competition as a part of the SPN. The Eleventh Circuit found that this portion of the SPN “remained executory[.]” Bommer, supra at 880. Even though the Eleventh Circuit also said, “[w]e strongly doubt that [Bommer] was free to compete once he accepted the SPN[,]” (footnote omitted) id. at 879 — that is, once he agreed to accept an as-yet-unagreed-to noncompetition agreement — such a musing, couched merely as strong doubt, cannot be taken as a decision on the merits. If, for example, this Court rendered the instant opinion by stating, “We strongly doubt that CMG is collaterally estopped from pursuing its claims,” we suspect we might receive a bid for clarity from the parties.

In summary, we find that CMG is not collaterally estopped from bringing its EBS-related claims in superior court.

2. CMG next contends that the trial court erred in finding that its EBS-related claims were compulsory counterclaims in the federal action, and that because they were not raised there, they are now barred in the superior court action. Finding error, we agree.

As in the instant case, a federal court sitting in diversity must apply state substantive law and federal procedural law. Esfeld v. Costa Crociere, S.P.A., 289 F3d 1300, 1306 (II) (A) (11th Cir. 2002). A state court’s determination of whether an issue is substantive or procedural, for choice-of-law purposes, is binding on a federal court. Shaps v. Provident Life & Accident Ins. Co., 244 F3d 876, 883 (II) (11th Cir. 2001). This Court has determined that “OCGA § 9-11-13 (a), which governs compulsory counterclaims in Georgia, sets forth the method for bringing such claim and thus is procedural in nature.” Harper v. Harper, 267 Ga.App. 553, 555 (1) (600 SE2d 659) (2004). As a result, in determining whether the EBS-related claims were compulsory counterclaims, we must examine federal procedural law.

Fed. R. Civ. P. 13 (a) (1) provides as to compulsory counterclaims:

A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction.

(Emphasis supplied.)

Here, CMG argues that it was neither a “pleader” nor an “opposing party’ in the federal court action, which Bommer filed against Gareleck and Reynolds in their individual capacities. CMG never was named as an opposing party in the federal suit, nor was it a “pleader” in Gareleck and Reynolds’ answer in the federal case. Black’s Law Dictionary at p. 1270 (Ninth Ed. 2009) defines the term “pleader” as “[a] party who asserts a particular pleading.” While Black’s does not define “opposing party,” it defines “adverse party’ as “[a] party whose interests are opposed to the interests of another party to the action.” (Emphasis supplied.) Id. at 1232. Bommer, however, essentially argues that, because CMG was a potential party in the federal litigation, it was required by Rule 13 to join or be joined in order to assert its EBS-related breach and noncompetition agreement claims against him.

We cannot say that CMG was under an obligation to intervene in the federal action in order to preserve its claims. The United States Supreme Court has determined that “a party seeking a judgment binding on another cannot obligate that person to intervene; he must be joined.” Martin v. Wilks, 490 U. S. 755, 763 (109 SCt 2180, 104 LE2d 835) (1989), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 120-166, 105 Stat. 1074, as stated in Landgraf v. USI Film Products, 511 U. S. 244, 250-251 (II) (114 SCt 1483, 128 LE2d 229) (1994). Our Eleventh Circuit, citing Martin, supra, found that the United States Supreme Court “expressly eschews a regime of mandatory intervention.” Mann v. City of Albany, Ga., 883 F2d 999, 1005 (III), n. 2 (11th Cir. 1989). Our state Supreme Court also has recognized this principle. See Barham v. City of Atlanta, 292 Ga. 375, 377 (1) (b) (738 SE2d 52) (2013).

Decided March 26, 2014

Reconsideration denied April 14, 2014

Raley & Sandifer, G. Brian Raley, Michael A. Sierra, for appellants.

Thompson Hine, Gary S. Freed, Fisher Broyles, Milo S. Cogan, for appellee.

Further, in Montgomery Ward Dev. Corp. v. Juster, 932 F2d 1378 (11th Cir. 1991), our federal appeals court determined that a successor-in-interest pendente lite was

a potential defendant who was not joined in the prior action, and thus does not qualify as a pleader for purposes of the compulsory counterclaim bar. We do not find that appellant ... who ... was not joined as a defendant in the [initial] suit, can be barred for the very reason that [plaintiffappellee] did not join him. Since [appellant] did not join in any pleading and had no obligation to join the [initial] suit, he cannot be barred now by a failure to have done so.

Id. at 1383 (B). Because CMG—unlike Gareleck and Reynolds—was neither a pleader nor an opposing party in the federal action, CMG’s claims related to EBS and noncompetition were not compulsory counterclaims in the federal action and are not barred in the superior court.

Judgment reversed.

Barnes, P. J., and Miller, J., concur.

        Bommer v. Reynolds, 465 Fed. Appx. 876 (11th Cir. 2012).

       Bommer’s motion to consolidate this appeal with the appeal of a separate order on summary judgment before this Court in Case No. A14A0186, Cost Management Group, Inc. v. Bommer, is denied.

       It should be noted, however, that CMG’s complaint does not refer to the SPN as providing the basis of any obligation it seeks to impose upon Bommer. Rather, the complaint premises its causes of action on duties imposed on Bommer by the SEA or generally under common law.

       Given our determination that the federal litigation did not decide the issue of whether Bommer breached the SPN’s restrictive covenants, we need not reach the issues of whether Gareleck and Reynolds were in privity with CMG, nor do we need to reach the issue of whether the SPN superseded the SEA. The SEAis the subject of the superior court action. If the SPN did not supersede the SEA, then of course CMG’s claims are not barred by collateral estoppel, as the federal action cannot have decided issues in the SEA that were not raised; if the SPN did supersede the SEA, the federal action’s absence of any ruling on whether Bommer breached the restrictive covenants also means CMG’s claims are not barred by collateral estoppel.

       We note that OCGA § 9-11-13 (a) is virtually identical in substance to Fed. R. Civ. R 13 (a) (1).


author: BARNES, Presiding Judge.

text:
    A13A2138.
    DURDEN v. THE STATE.
    (755 SE2d 909)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Charlie Woodrow Durden appeals his convictions for two counts of aggravated assault and aggravated battery. Durden contends multiple errors on appeal, including that the trial court erred in denying his general demurrer to the indictment, erred in limiting his cross-examination of certain witnesses, and erred in admitting similar transaction evidence. Durden also contends that the trial court erred in denying his motion for mistrial, and in failing to charge the jury on the affirmative defense of accident. Following our review, we affirm.

At the outset, counsel is reminded that Court of Appeals Rule 24 (e) requires that “[t]he pages of each brief shall be sequentially numbered with Arabic numerals.” Counsel’s 49-page brief is numbered with Roman numerals in violation of the rules of this Court. We further remind counsel that “compliance with our rules is not discretionary, but mandatory.” Warren v. State, 232 Ga. App. 488 (1) (502 SE2d 336) (1998).

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citations omitted.) Martinez v. State, 278 Ga. App. 500 (629 SE2d 485) (2006).

So viewed, the evidence demonstrates that on May 10,2011, after consuming a large quantity of alcohol, Durden got into an altercation with the victim, who was his wife. Durden first told the victim that he was going to kill her; then, after beating her, Durden drew a sword on the victim that he retrieved from a closet. The victim was unable to hide from Durden under a nearby bed, and as he swung the sword at her, she lifted her arm to protect herself and suffered a severe laceration to her arm. Durden initially refused to take the victim to the hospital because “he didn’t want to go to jail,” but finally agreed to take her. On the drive to the hospital, Durden was stopped for speeding. The victim initially told police that she had cut her arm on broken glass, but when the officers separated the couple, she told them about the attack. Durden was arrested, and the victim was transported to the hospital. During surgery on the approximately twelve centimeters long, three centimeters deep laceration on her arm, doctors repaired muscle and nerve damage caused by the sword. The treating physician testified that the victim’s residual muscle weakness and pain were probably permanent.

Following his indictment and subsequent jury trial for two counts of aggravated assault and one count of aggravated battery, Durden was found guilty on all counts. At sentencing, the aggravated assault and aggravated battery counts merged. Durden filed a motion for new trial, which, following a hearing, the trial court denied. He now appeals from that order.

1. Durden first contends that the trial court erred in denying his general demurrer to the indictment. He maintains that the two aggravated assault counts do not sufficiently allege any crime and thus he could admit to the acts and not be guilty of a crime. We do not agree.

A general demurrer challenges the sufficiency of the substance of an indictment. The true test of the sufficiency of an indictment to withstand a general demurrer is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective.

(Citations and punctuation omitted.) Brown v. State, 322 Ga. App. 446, 453 (3) (745 SE2d 699) (2013).

Furthermore, each count set forth in an indictment must be wholly complete within itself, and plainly, fully, and distinctly set out the crime charged in that count. Unless every essential element of a crime is stated in an indictment, it is impossible to ensure that the grand jury found probable cause to indict.

(Citations and punctuation omitted.) Smith v. Hardrick, 266 Ga. 54, 55 (1) (464 SE2d 198) (1995).

Under OCGA § 16-5-21 (a) (2), “[a] person commits the offense of aggravated assault when he or she assaults . . . with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” Simple assault pursuant to OCGA § 16-5-20 (a) is committed when a person “either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”

Here, Count 1 of the indictment charged that Durden “did unlawfully make an assault upon the . . . [victim], with a sword, a deadly weapon in the manner used, by intentionally cutting the . . . [victim] with said sword, in an attempt to commit a violent injury upon said person.” Count 2 charged that Durden “did unlawfully make an assault upon the... [victim], with a sword, a deadly weapon in the manner used, by placing the . . . [victim], in reasonable apprehension of immediately receiving a violent injury, by cutting the . . . [victim] with said sword.”

Durden maintains that the two counts combine the language of the offenses of simple assault and aggravated assault, and thus the indictment is insufficient as it fails to put him on notice for the offenses for which he is charged. At the hearing on the general demurrer, Durden argued that both counts alleged a battery rather than an aggravated assault. The trial court denied the general demurrer, and held that Durden was on sufficient notice of the offenses charged, the counts were properly labeled, and that the counts, as charged, did not allege a battery.

“[Aggravated assault has two essential elements: (1) that an assault (as defined in [OCGA § 16-5-20]) was committed on the victim; and (2) that it was aggravated by (a) an intention to murder, to rape, or to rob, or (b) use of a deadly weapon.” Merrell v. State, 162 Ga. App. 886, 887 (2) (293 SE2d 474) (1982). Here both aggravated assault counts included the assault element under OCGA § 16-5-20 and the aggravation element under OCGA § 16-5-21. In any event, the judge merged these two counts into the aggravated battery count and sentenced Durden only on the count of aggravated battery. By doing so, the trial judge rendered the convictions for aggravated assault void. See Merritt v. State, 288 Ga. App. 89, 91 (1) (653 SE2d 368) (2007) (“A conviction which is merged into another as a matter of fact or law is void.”). Thus, this enumeration fails.

2. Durden next contends that the trial court erred in limiting his cross-examination of certain State’s witnesses. He contends that the trial court violated his right to confront witnesses when it prohibited him from questioning a police deputy and the victim about her son’s mental disability. The victim apparently made a statement to an officer responding to a previous domestic violence call at the couple’s home that her son, who had made the call, was mentally challenged. During cross-examination of the officer, Durden asked the officer about the statement, and the State objected. The trial court sustained the objection. Later, before the victim testified, Durden elicited a ruling from the trial court about whether he could question the victim on cross-examination about the same statement regarding her son’s mental disability. After a lengthy discussion outside the presence of the jury at which Durden maintained that the son’s mental disability was relevant to explain why the call was made, the trial court ruled that the statement regarding the mental condition of the victim’s son was irrelevant and inadmissible. The trial court explained that the statement was merely cumulative of the evidence already admitted about the incident and said “the officer came to the scene, investigated it, and decided there was no need to make any arrests.... [The victim] basically disavowed any knowledge[,]... did not request any charges be brought, and walked off from it.”

Although the Sixth Amendment right to confrontation secures the right of cross-examination, the right of cross-examination is not an absolute right that mandates unlimited questioning by the defense. To the contrary, trial courts retain wide latitude to impose reasonable limits on cross-examination based on concerns about, among other things [,] interrogation that is only marginally relevant. The permissible scope of cross-examination is committed to the sound discretion of the trial court, and we review a limitation of the scope of cross-examination only for abuse of discretion.

(Citations and punctuation omitted.) Nicely v. State, 291 Ga. 788, 796 (4) (733 SE2d 715) (2012).

Here, Durden apparently wanted to show that the call was unfounded. The officer testified that the son made the call, that he had not found any reason to lock anyone up and that, on that occasion, the victim had not complained that Durden had done anything to her. The trial court’s ruling that the son’s mental disability was irrelevant was not an abuse of its discretion in this circumstance.

3. Durden contends that the trial court erred in instructing defense counsel that she could not argue during closing that Durden had committed the act, but that it was an accident. We discern no error.

The record reflects that the trial court denied Durden’s request to charge the jury on the affirmative defense of accident. It further instructed Durden that he could not argue in closing that he did not intend to cut the victim because he had not put forth an affirmative defense of accident. Durden did not testify at trial, and the trial court found that there was no other evidence supporting the affirmative defense. It instructed Durden that it was permissible to argue that the State had failed to prove intent, specifically “whether or not the State has met its burden of proving that [Durden] intentionally committed the act.”

OCGA § 17-8-75 provides that trial courts have the duty to interpose and prevent attorneys from introducing facts or make statements about matters that were not placed in evidence. See Brown v. State, 256 Ga. App. 603, 610-611 (4) (568 SE2d 727) (2002). Accordingly, because there was no evidence to support an accident defense, we find that the trial court did not abuse its discretion in limiting Durden’s closing argument on this ground.

4. Durden contends the trial court erred in admitting similar transaction evidence of a November 2010 incident in which he reportedly stabbed the victim’s son-in-law with a pitchfork. The State’s proffer at the pre-trial motion on the incident was that while Durden was assaulting the victim, the son-in-law had intervened, and the men got into a “tussle.” Durden then stabbed the son-in-law with a pitchfork as he walked away. There were no charges filed in the incident. The State maintained that they were offering the evidence for a proper purpose to show Durden’s state of mind. The trial court accepted the proffer and ruled that it would allow the evidence to be admitted. Defense counsel responded, “yes sir.”

Again, acquiescence to the trial court’s ruling waives the error on appeal. Compton v. State, 281 Ga. 45, 46 (2) (635 SE2d 766) (2006); see Ward v. State, 288 Ga. 641, 646 (706 SE2d 430) (2011) (explaining that acquiescence “means a tacit consent to acts or conditions, and implies a knowledge of those things which are acquiesced in”) (citations and punctuation omitted). In any event, the trial court’s ruling was not error.

Evidence of a similar transaction may be admitted if the State shows that: (1) it seeks to introduce the evidence not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of admissibility; (2) there is sufficient evidence to establish that the accused committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Citation and punctuation omitted.) Matthews v. State, 294 Ga. 50, 52 (3) (a) (751 SE2d 78) (2013). See Wiliams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991).

The trial court accepted the proffer and found that the State was seeking to introduce the evidence to show bent of mind, that there was sufficient evidence to show that Durden committed the act since the son-in-law would testify at trial, and that the attack on the son-in-law was sufficiently similar to the crimes charged because “this attack on this third person . . . was a result of a prior altercation between the victim in this case and [Durden], It just happened to spill over onto this person.”

When reviewing the trial court’s factual findings regarding whether the state satisfied the Williams three-prong test we apply the clearly erroneous standard of review. The decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.

(Citations and punctuation omitted.) Matthews v. State, 294 Ga. at 52 (3) (a). The trial court did not abuse its discretion in concluding that the similar transaction evidence satisfied the Williams test in this case.

5. We further find that the trial court did not err in denying Durden’s motion for mistrial. During her testimony about the events surrounding the night of the attack, the victim testified that Durden was “driving at 100 miles an hour and we got pulled over by the police and they gave him a DUI.” Durden moved for a mistrial, and the trial court denied the motion and gave the jury a curative instruction in which it advised them to disregard any testimony regarding any other crimes and to limit their consideration to the offenses of aggravated assault and aggravated battery.

“A trial court’s discretion in granting or refusing to grant a mistrial should not be disturbed unless a mistrial is essential to the preservation of the right to a fair trial.” Gardner v. State, 273 Ga. 809, 812-813 (5) (546 SE2d 490) (2001).

In determining whether a trial court abused its discretion, an appellate court may consider the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety. We have held that curative instructions are a proper remedy when a witness improperly places a defendant’s character into evidence. Here, the trial court gave the jury curative instructions immediately after defense counsel objected to mention of [the DUI] .... Thus, under these circumstances, we conclude a new trial was not essential to preserving [Durden’s] right to a fair trial and the trial court did not abuse its discretion in refusing to grant a mistrial.

Decided March 26, 2014

Reconsideration dismissed April 14, 2014

K. Alana Devaney, for appellant.

(Citations and punctuation omitted.) Id. at 813 (5).

6. Durden contends that the trial court committed reversible error by failing to instruct the jury regarding the defense of accident. OCGA § 16-2-2 provides that “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” “To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” (Citation and punctuation omitted.) Jones v. State, 287 Ga. 770, 771-772 (2) (700 SE2d 350) (2010).

To establish an evidentiary foundation for an instruction on the affirmative defense of accident, the defendant “admits the doing of the act charged but seeks to justify, excuse, or mitigate it.” (Citation and punctuation omitted.) Kelley v. State, 235 Ga. App. 177, 179 (1) (509 SE2d 110) (1998). Accordingly, if a defendant does not admit to committing any act which constitutes the offense charged, he is not entitled to a charge on the defense of accident. See Maxey v. State, 272 Ga. App. 800, 802 (1) (613 SE2d 236) (2005) (“In order to assert a statutory affirmative defense,... the defendant must admit all of the elements of the crime except intent.”).

Durden provides no citations to the record establishing that he admitted to cutting the victim’s arm. Although the victim initially told police that she had accidentally cut her arm on broken glass, this in no way provided evidentiary support for Durden’s contention that the trial court should have charged the jury on the defense of accident. See Mangrum v. State, 285 Ga. 676, 680 (6) (681 SE2d 130) (2009) (explaining that, if a defendant does not admit to committing any act which constitutes the offense charged, he is not entitled to a charge on the defense of accident). Thus, as Durden did not establish an evidentiary foundation to authorize a charge on the defense of accident, the trial court did not err in denying his request.

Judgment affirmed.

Miller and Ray, JJ., concur.

L. Craig Fraser, District Attorney, LaShonda C. Harris, Assistant District Attorney, for appellee.

       This case was tried under the old Evidence Code. Under the new Evidence Code, the provisions governing the admission of similar transaction evidence have changed. See OCGA § 24-4-404 (b). However, these changes are applicable to cases tried after January 1,2013. See Ga. L. 2011, p. 99, § 101.


author: Ray, Judge. BARNES, Presiding Judge,

text:
    A13A2167.
    MAGNOLIA STATE BANK v. VNS CORPORATION.
    (755 SE2d 553)
   Ray, Judge.

We granted Magnolia State Bank’s application for a discretionary appeal from the trial court’s denial of its motion to set aside a judgment under the Five-Year Rule. For the reasons that follow, we vacate the trial court’s order of April 16, 2013, which denied Magnolia’s motion to set aside the judgment, and we remand the case for proceedings not inconsistent with this opinion.

Georgia’s Five-Year Rule provides that “[a]ny action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.” OCGA § 9-2-60 (b). See also OCGA § 9-11-41 (e), which provides a dismissal for want of prosecution under the same terms.

The dispute in this case arises from a court record that was lost. Not surprisingly, the facts and procedural history apparent from the record are somewhat incomplete. Both parties agree that VNS Corporation d/b/a Choo Choo Build-It Mart (‘VNS”) sued Magnolia to enforce a materialman’s lien in July 2003, although no dated or clerk-stamped copy of the complaint appears in the record, nor does any answer from Magnolia appear in the record. Both sides agree that a nonjury trial on liability and damages was held on May 18, 2006. More than five years after that trial, on February 20, 2012, the trial court entered judgment in favor of VNS. Neither Magnolia nor its counsel received notice or a copy of the judgment until, respectively, October 5 and 10, 2012, when they learned of the judgment lien via a notice Magnolia received from Credit Bureau Associates of Georgia.

It is undisputed that on October 18, 2012, Michael Kohler, counsel for Magnolia, contacted the Dodge County Superior Court’s deputy clerk and asked her to e-mail him copies of all documents in the case file. The documents she sent included pleadings, a motion, a brief, and various trial-related documents. Her e-mail response did not include any orders of the trial court, but did include the judgment dated February 20, 2012, and a letter dated April 4, 2011, and copied to one of Magnolia’s lawyers, from counsel for VNS stating that “[i]n accordance with the Order of this Court entered on March 30, 2011, please find enclosed copies of the pleadings filed on behalf of the Plaintiff in the above-referenced case.” The deputy clerk did not include a copy of any order of March 30, 2011, with her e-mail.

On November 8,2012, Magnolia moved to set aside the judgment under the Five-Year Rule, arguing that no signed, written orders were properly filed in the case between its commencement on July 1, 2003, and the judgment nearly nine years later on February 15,2012, such that the case stood automatically dismissed as a matter of law under the Five-Year Rule as of July 1, 2008. VNS, in its response to the motion to set aside, included as an exhibit copies of various orders allegedly in the case file, including an order dated April 19,2006. This particular copy is not file-stamped.

The trial court held a hearing on the motion to set aside, and on April 16, 2013, it denied Magnolia’s motion in an order taking “judicial notice” of other orders, including the order of April 19, 2006, mentioned above. It is undisputed that these orders were not in the court file prior to the filing of the motion to set aside. The trial court also found, without taking judicial notice, that the “Clerk’s file reflects an additional Order that was entered on March 30, 2011, requiring the parties to submit their previously filed pleadings to the Clerk due to the file being misplaced.” The trial court found that because the time between the order of April 19, 2006, and the order of March 30, 2011, was “4 years, 11 months and 11 days,” that there was no violation of the Five-Year Rule.

The trial court’s order also states that, “[d]uring the pendency of this case, the Clerk’s file was misplaced and never found.” However, included in the record before us is a notice from the clerk of the Dodge County Superior Court, signed June 24, 2013, certifying that the attached documents, which include a file-stamped version of the April 19, 2006, order ■—• which VNS submitted in a nonfile-stamped form prior to the trial court’s ruling — are true and correct. The clerk’s certification was made seven days after Magnolia filed its notice of appeal on June 17, 2013, which was approximately two months after the trial court’s denial of the motion to set aside on April 16, 2013.

We cannot consider the certified, file-stamped version of the order of April 19, 2006, as it was not properly before the trial court when that court rendered its decision. “Appellate courts will review only evidence presented to the trial court before its ruling on the motion. Additional evidence will not be admitted on appeal.” (Citation and punctuation omitted; emphasis supplied.) Altman v. Pilcher, 321 Ga. App. 8, 9-10 (1) (740 SE2d 866) (2013). “Matters of record, which were not before the trial court when it ruled, cannot be considered on appeal.” (Citation omitted.) The Rental Equip. Group v. MACI, LLC, 263 Ga. App. 155, 163 (3) (b) (587 SE2d 364) (2003).

Thus, the question before us is whether the nonfile-stamped, order of April 19, 2006, and the late-appearing order of March 30, 2011, toll the running of the Five-Year Rule. “In order to toll the running of the five-year period that results in automatic dismissal for non-action, an order must be written, signed by the trial judge, and properly entered in the records of the trial court by filing it with the clerk.” (Citations and punctuation omitted; emphasis supplied.) Zepp v. Brannen, 283 Ga. 395, 396 (658 SE2d 567) (2008).

OCGA § 24-11-2 (a), (b) provides:

Where any original public records have been lost, mutilated, stolen, or destroyed, the custodian may establish duplicates in accordance with the provisions of this article. When such public records are established by duplicates, they shall have all of the effect in evidence as the original records would have had. The custodian of the lost, mutilated, stolen, or destroyed public records shall bring a petition to establish such records in the superior court of the county in which the public records were located.

(Emphasis supplied.) This Code section, which became effective on January 1,2013, has rarely been construed. Case law on the re-establishment of lost court records is sparse, both before and after the enactment of OCGA § 24-11-2. However, court records are, logically, among the “original public records” contemplated by the plain language of OCGA § 24-11-2. See generally Sharpton v. Hall, 296 Ga. App. 251, 252 (674 SE2d 105) (2009) (ordinarily, court records are deemed public records). See also Spectera, Inc. v. Wilson, 294 Ga. 23, 26 (1) (a) (749 SE2d 704) (2013) (where a statute’s plain language is clear and susceptible to only one reasonable construction, courts must construe the statute according to its terms). Further, former OCGA § 24-8-1 contains virtually the same language as OCGA § 24-11-2 (a), and our Supreme Court clearly indicated its application to lost court records. See East Ga. Land and Dev. Co. v. Baker, 286 Ga. 551, 552-553 (2) (690 SE2d 145) (2010).

OCGA § 24-11-2 (b) requires the custodian of the lost records to bring a petition to establish them. According to OCGA § 24-11-1, “[c]ustodian means the person charged with the duty of maintaining public records.” (Punctuation omitted.) In this instance, the custodian of the records at issue would be the clerk of court. See OCGA § 15-6-96 (“The clerk of the superior court is the custodian of the records of his or her office.”). In the instant case, it is undisputed that the clerk brought no petition to establish the missing records, and although he or she spoke briefly at the hearing on the motion to set aside, it was only to confirm that the trial judge was holding the clerk’s “substitute file,” which apparently contained a stamp-filed copy of the order of March 30, 2011, that was not in the file when the deputy clerk e-mailed the filed documents to Magnolia’s counsel prior to the filing of the bank’s motion to set aside. Nothing in the record indicates how or when the order of March 30, 2011, appeared — after the fact — in the court file.

Because the record shows that none of the orders at issue in this case, including those dated April 19, 2006, and March 30, 2011, were properly entered in the court record, Zepp, supra, and because it is undisputed that these orders were not properly established pursuant to the requirements of OCGA §§ 24-11-1 and 24-11-2, we must vacate the trial court’s order denying Magnolia’s motion to set aside the judgment and remand the case for further proceedings not inconsistent with this opinion. Given that the court clerk, as custodian of the records, still could bring a petition to establish such records, it would be premature for us at this time to declare the underlying judgment of February 20, 2012, a nullity. See Kachwalla v. Byrne, 198 Ga. App. 454, 454 (402 SE2d 74) (1991). Nor do we take a position on whether Magnolia, given that it did not receive timely notice of that judgment, may pursue other challenges pursuant to OCGA § 15-6-21 (c). See C & R Financial Lenders v. State Bank & Trust Co., 320 Ga. App. 660, 661 (2) (740 SE2d 371) (2013).

Judgment vacated and case remanded.

Barnes, P. J., concurs specially. Miller, J., concurs in judgment only.

BARNES, Presiding Judge,

concurring specially.

I agree with the majority that the trial court erred in taking judicial notice that certain orders had previously been entered in the case, and that the trial court’s denial of the motion to set aside the judgment therefore must be vacated and remanded for further proceedings. However, I disagree with the majority’s conclusion that OCGA § 24-11-2 is the only statutory procedure available for resolving the dispute between the parties regarding whether the prior orders at issue had been properly entered in the records of the trial court. As such, I concur only in the judgment.

Decided March 26, 2014

Reconsideration denied April 14, 2014.

Miller & Martin, Michael P. Kohler, for appellant.

Kaufold & Everett, Howard C. Kaufold, for appellee.

OCGA § 5-6-41 (f) provides an alternative procedure that can be applied on remand, given that the parties on appeal dispute what transpired in the trial court over the course of this case. That statute provides:

Where any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth. . . .

OCGA § 5-6-41 (f). Pursuant to this statute, the trial court on remand can conduct an evidentiary hearing and resolve whether the prior orders at issue were ever properly entered in the record, and its ultimate resolution of the dispute over the record would be reviewed on appeal only for a manifest abuse of discretion. See Michel v. Michel, 286 Ga. 892, 895 (2) (692 SE2d 381) (2010).

Following OCGA § 5-6-41 (f) would provide a far more efficient and less cumbersome procedure than OCGA § 24-11-2, which would require the court clerk to file a separate petition to establish the lost records and thus create unnecessary satellite litigation. Accordingly, on remand, the better practice would be for the trial court to use the procedure set forth in OCGA § 5-6-41 (f).

       The whole of Title 24, which includes OCGA § 24-8-1 et seq., was repealed by the same Act that enacted the new Evidence Code, OCGA § 24-11-1 et seq., Ga. L. 2011, p. 99, § 2, effective January 1, 2013.


text:
    A13A2176.
    STOCKARD v. THE STATE.
    (755 SE2d 548)
   Ray, Judge.

After a jury trial, Carlos Alan Stockard was convicted of making a false statement (OCGA § 16-10-20). Stockard appeals from the denial of his motion for new trial, arguing that the evidence is insufficient to sustain his conviction because the State failed to prove venue. For the reasons that follow, we agree and reverse.

Generally, “all criminal cases shall be tried in the county where the crime was committed[.]” Ga. Const, of 1983, Art. VI, Sec. II, Par. VI.

The standard for review of the sufficiency of the evidence to support a criminal conviction is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The review of the sufficiency of the evidence to support venue is no different because venue is an essential element that must be proven beyond a reasonable doubt in every criminal trial. In considering this standard, [the Supreme Court] and the Court of Appeals have consistently stated that the evidentiary review is limited to the evidence actually presented to the jury.

(Citation omitted.) McKinney v. State, 294 Ga. App. 366, 366-367 (670 SE2d 147) (2008). “[V]enue is a question for the jury, and its decision will not be set aside if there is any evidence to support it.” (Punctuation and footnote omitted.) Leftwich v. State, 299 Ga. App. 392, 399 (4) (682 SE2d 614) (2009). The State may use both direct and circumstantial evidence to prove venue. Payne v. State, 290 Ga. App. 589, 590 (2) (660 SE2d 405) (2008).

The evidence shows that the State called William Presnell, an investigator with the DeKalb County District Attorney’s Office, to testify at trial. Presnell testified that he and another investigator went to the “DeKalb jail” to interview Stockard and picked him up in a police vehicle from the sally port at the back of the jail. Specifically, he testified in response to questions about why two investigators handled the interview that it was a safety issue because, “[w]e’re interviewing at the jail. We actually leave the sally port area. So we leave the j ail at some point, and, you know, [it is] just policy, you’re not supposed to be driving a suspect around in your car by yourself.” (Emphasis supplied.)

In addition to part of the interview occurring at the jail, some portion of the interview, which involved questions related to the death of LaTroy McIntosh, was conducted in the police vehicle as it was driven around. During the interview, an audio recording of which was played for the jury, Stockard initially stated that he was spending the night with a woman and was not at the apartment complex when the murder for which he was subsequently indicted took place. However, later on in the interview, he admitted that he was in the vehicle with two co-defendants when they drove to the apartment complex where the murder occurred and that he was present at the time of the shooting. He admitted that he heard gunshots while he was outside the vehicle, urinating. These contradictory statements were the basis for the false statement count in the indictment.

1. Stockard has not challenged the sufficiency of the evidence apart from his allegation regarding venue. As a result, no issue concerning the sufficiency of the evidence to prove the crime of false statement is before us. Nonetheless, we find the evidence sufficient to sustain his conviction. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); see Payne, supra at 589 (1).

2. Stockard asserts that the State failed to prove venue. He argues that the State offered no proof that the DeKalb County jail or the sally port are located in DeKalb County. He also argues that part of the interview took place while investigators were driving Stockard around and that there is no evidence as to whether they remained in DeKalb County as they drove, and thus, that the false statement may have been made in another venue. We agree that the State failed to prove venue.

The State may indeed be able to show circumstantially that the DeKalb County jail is in DeKalb County. In State v. Prescott, 290 Ga. 528, 529 (722 SE2d 738) (2012), our Supreme Court found the evidence sufficient to prove venue even where the State failed to offer direct evidence that the crime occurred in a certain county. In Prescott, the Court found that the jury could infer in which county the crime occurred because the crime took place at a county high school, was investigated by a school resource officer employed by the county sheriff’s office, and county sheriff’s office forms were used for Miranda waiver purposes. Id.

Similar elements of circumstantial evidence are present in the instant case. We cannot say that a factfinder’s inference that the DeKalb County jail is in DeKalb County is unreasonable. Prescott, supra. Further, we have considered the county where a defendant is incarcerated as an element of proof of venue, and here, Stockard had been arrested and was being held at the DeKalb County jail. See Scott v. State, 302 Ga. App. 111, 112 (1) (a) (690 SE2d 242) (2010) (evidence of venue sufficient where, inter alia, defendants were incarcerated in the Jackson County jail, a Jackson county paramedic responded to the crime scene, and a Jackson County officer responded to a “be on the lookout” for a certain vehicle).

However, even if the interview began in DeKalb County, we do not know what county Stockard was in when he made the false statements. The audio recording of the interview indicates that Stockard made his initial false statement between eight and ten minutes after the recording began, and told the investigators the truth as to his whereabouts between sixteen and thirty-seven minutes after the recording began. There is no way to tell from the audio recording where the vehicle was when Stockard made the false statements.

As the State points out in its appellate brief, OCGA § 17-2-2 (e) provides that if a crime is committed in a car traveling within the state, and “it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the ... vehicle ... has traveled.” (Emphasis supplied.) OCGA § 17-2-2 (h) provides that where “it cannot be determined in what county a crime was committed” there is proper venue “in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” (Emphasis supplied.) Our Supreme Court found in Bundren v. State, 247 Ga. 180, 181 (1) (274 SE2d 455) (1981) that this Code section offers “a mechanism” by which the constitutional mandate that criminal trials be held in the county where the crime was committed “can be carried out when the place in which the crime is committed cannot be determined with certainty.” (Emphasis supplied.)

Here, because the State made no attempt to elicit evidence as to where the crime occurred, we are unable to say that the county in which the crime was committed “cannot be determined” or “cannot readily be determined.” In this case, the investigators may well have known which county or counties Stockard was in when he made the false statements, but they were never asked to identify any locale. The evidence did not establish that it would have been difficult to determine where the crime was committed, or, necessarily, that the crime could have been committed in more than one county. The State simply failed to present any evidence about counties except that the interview began at the sally port of the DeKalb County jail.

Absent any attempt by the State to question the investigators on this issue, there is no way to know what could have been determined as to venue. The law is abundantly clear that “[vjenue is a jurisdictional element of every crime, and the State has the burden of proving venue beyond a reasonable doubt.” (Citation omitted; emphasis supplied.) Bulloch v. State, 293 Ga. 179, 187 (4) (744 SE2d 763) (2013). If we were to affirm the trial court in this instance, given the lack of effort on the part of the State to elicit any information as to venue, then we would be removing from the State its mandated burden. Any time a crime occurred in a vehicle traveling through Georgia, the State would be absolved of the burden of proving venue; further, it would not even need to attempt to prove venue.

This situation would require a different analysis had the State propounded questions on the issue that the investigators were actually unable to answer or if, despite questioning by the State, some factor prevented the witness from knowing the location where a crime occurred. Compare Prudhomme v. State, 285 Ga. App. 662, 665 (2) (647 SE2d 343) (2007) (evidence of venue sufficient where five- or six-year-old victim was molested in vehicle “approximately one mile away from [her] Gordon County residence”); Harris v. State, 279 Ga. App. 570, 573 (2) (631 SE2d 772) (2006) (evidence of venue sufficient where seven-year-old was the subject of aggravated sexual battery while traveling in truck between her Cobb County home and a bus stop in an unidentified area); Leftwich, supra at 393, 399 (4) (rape victim abducted from Lenox Square Mall, “blinded with a pair of gold sunglasses with painted-over lenses” and driven to an unknown location where crime occurred).

Here, the indictment specifically charged Stockard with committing the crime of making false statements in DeKalb County. Because the State failed to meet its burden, evidence of venue is insufficient. See Rogers v. State, 298 Ga. App. 895, 898-899 (3) (c) (681 SE2d 693) (2009) (proof of venue in Rockdale County insufficient under OCGA § 17-2-2 (e) where defendant made phone calls to informant in unknown location while traveling from Cobb or Rockdale County to deliver drugs to Newton County because “the State could have readily determined where the crime was committed [as] [t]he record shows that members of the drug task force knew the location of the informant during her phone calls with [defendant]”).

We note that because our reversal is based solely on a determination of insufficient evidence of venue, the State is not barred by the double jeopardy clause from retrying Stockard, so long as venue is properly established on retrial. Rogers, supra at 899 (3) (c), n. 9.

Judgment reversed.

Barnes, P. J., and Miller, J., concur.

On Motion for Reconsideration.

The State essentially raises an admission in judicio argument on motion for reconsideration. Citing two sentences in Stockard’s appellate brief — absent any context — the State contends that because “allparties agreed that the false statements were made while [Stockard] was in the sally port at [the] DeKalb County jail” (emphasis supplied), this Court erred in determining that venue had not been proven because it “fail[ed] to properly defer to factual findings at the trial level.” While it is possible to make an admission in judicio in an appellate brief, see generally State v. Griffin, 204 Ga. App. 459, 459 (419 SE2d 528) (1992), the State’s contentions here are, respectively, disingenuous and incorrect.

To support its contention that Stockard “agreed” that he made the false statements at the sally port of the DeKalb County jail, and thus that there is no dispute that venue is proper in DeKalb County, the State first cites this sentence from Stockard’s appellate brief: “Arguably, the only definite testimony regarding the location of where the false statements occurred was the sally port[.]” However, the immediately preceding sentence in Stockard’s appellate brief reads, “The problem here is the State failed to establish where the false statements were made, i.e., inside the jail, inside the vehicle while parked at the jail, or while the vehicle was traveling.” (Emphasis supplied.) Stockard’s appellate brief goes on to argue, “The State only established that . . . [the] investigators with the DeKalb County District Attorney’s Office [ ] picked up Stockard from the sally port and interviewed him inside their vehicle. This evidence does not establish whether they left the sally port before or after the false statement was made[.]” (Emphasis supplied.)

The State also cites another sentence from Stockard’s appellate brief: “It appears Stockard had already given the false statements while still at the sally port, prior to the investigators driving around.” Again, taken in context, this statement appeared immediately prior to the following sentences in Stockard’s appellate brief:

Once they left the sally port, the investigators drove Stockard around without stopping for over 30 minutes. . . . The burden is on the State to prove beyond a reasonable doubt that Stockard made false statements in DeKalb County. The State introduced no evidence showing the location of the jail, sally port, or vehicle when the crime took place. To satisfy its burden of proof on venue, the State was obligated to prove that the jail, the sally port, and/or vehicle were located in DeKalb County when the false statements were made.

(Emphasis supplied.)

Here, Stockard’s arguments on appeal and in other pleadings below clearly contradict the contention that he “agreed” that the false statements were made at the sally port of the DeKalb Countyjail. See Morgan v. Morgan, 148 Ga. 625 (97 SE 675) (1918) (alleged admissions in judicio are construed in light of other pleadings filed by party).

Further, at trial, a recording of the investigators’ interview with Stockard was played for the jury, which of course was perfectly capable of determining, based on what it heard, at what point in time after the start of the recording Stockard made the statements at issue. It is undisputed that Stockard made the statements some minutes after the investigators began recording the conversation — approximately between eight and ten minutes later, according to the audio recording in the record before us. No evidence was presented as to whether the vehicle was in motion or where the vehicle was when the investigators began recording the conversation. No evidence was presented as to where the vehicle was when Stockard made the false statements. Here, the recording and resulting transcript only show that one of the investigators initially noted that they were at the sally port; some minutes later, Stockard made the statements at issue.

Given this, the statements in Stockard’s appellate brief cited by the State — which begin, we note, with the conditional language of “[a]rguably” and “[i]t appears” — would be merely expressions of opinion as to the facts. See Flynn v. Mack, 259 Ga. App. 882, 884 (1), n. 1 (578 SE2d 488) (2003) (admissions in judicio apply only to actual admissions of fact, not where the admission is merely the opinion or conclusion of the appellant). See also Space Leasing Assocs. v. Atlantic Bldg. Systems, 144 Ga. App. 320, 326 (4) (241 SE2d 438) (1977).

We cannot agree with the State’s argument that, essentially, Stockard has on appeal admitted in judicio to a fact not proven at trial. The motion for reconsideration is denied.

Motion for reconsideration denied.

Decided March 26, 2014

Reconsideration denied April 14, 2014.

Robert Kenner, Jr., for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

       The jury found Stockard not guilty of malice murder, felony murder, armed robbery, aggravated assault, and criminal conspiracy.

       Because the audio recording of this interview is in the record before us, Stockard’s motion to supplement the record with this exhibit is moot.

         Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

         “[O]ur appellate courts have . . . repeatedly expressed frustration with the [S]tate’s failure to prove venue since it seems to us in many instances ... that proving venue is a simple exercise that generally requires the asking of one question.” (Citations and punctuation omitted.) Powers v. State, 309 Ga. App. 262, 264 (1), n. 2 (709 SE2d 821) (2011).

       On appeal, we look at all evidence properly before the jury in the light most favorable to the verdict. In the instant case, that evidence includes the tape recording of the investigators’ interview with Stockard during which he made the statements at issue.


author: Phipps, Chief Judge.

text:
    A13A2336.
    MILES v. PAYNE.
    (755 SE2d 551)
   Phipps, Chief Judge.

Jauanna Miles appeals from two orders entered in favor of her ex-husband, Lonnie Payne: (1) a final order denying her petition for custody of their minor child; and (2) a judgment awarding Payne attorney fees. On October 2, 2012, a hearing was held on Miles’s custody petition. The order on the petition and the judgment for attorney fees were each marked with stamps reading “Filed with the Court,” followed by a line, under which was printed “J. David Roper, Judge”; a handwritten signature appeared on the line and beside the signature, the handwritten date “11-26-12.” The order and judgment also each contained stamps showing that they were “Filed For Record” with the clerk of the superior court on November 27, 2012. The notice of appeal contained a stamp showing that it was filed with the superior court clerk on December 27, 2012.

Miles contends that her appeal is timely and this court has jurisdiction over her appeal because the clerk’s stamp filed date is the date from which the 30 days to file a notice of appeal began to run, and not the judge’s stamp filed date.

“The filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of [Georgia’s appellate practice] article.” But OCGA § 9-11-5 (e) creates an exception to this rule. Pursuant to OCGA § 9-11-5 (e), “[t]he filing of pleadings and other papers with the court... shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.” This court has held: “Although OCGA § 9-11-5 applies to the Civil Practice Act, the rationale of this statute is equally applicable to the Appellate Practice Act.”

Miles asserts that in Storch, this court interpreted OCGA § 9-11-5 (e) as requiring pleadings or other papers to be filed “in open court” when filed by the trial judge, and that in this case, because there was no indication that the judge filed the order and judgment in open court (as opposed to in chambers), the judge’s stamp filed date is void. But Miles is wrong. This court did not, in Storch, interpret the clear and unambiguous language of OCGA § 9-11-5 (e), other than as written.

In Storch, the judgment was marked with a stamp from the trial judge which read “Filed in Open Court.” Based upon the facts of that case, this court held that “the filing of the judgment in open court with the trial judge was the entry of judgment within the meaning of OCGA § 5-6-31.” Contrary to Miles’s argument, the court did not hold that pleadings and documents filed with the trial judge pursuant to OCGA § 9-11-5 (e) must be filed in open court to be considered entered within the meaning of OCGA § 5-6-31.In this case,the record showed that the trial judge followed the procedure set forth in OCGA § 9-11-5 (e) and allowed the orders to be filed with him; the orders from which Miles appeals were marked with the judge’s filing date and “forthwith” transmitted to the office of the clerk, as evidenced by the clerk’s stamp filed date, which was the day after the trial judge’s stamp filed date. Accordingly, the trial judge’s stamp filed date was not void, and Miles’s notice of appeal was untimely filed.

Notably, Miles does not argue that she did not receive notice of the final order and judgment, such that she was unable to timely appeal therefrom. In fact, the record shows that on December 14, 2012, Miles filed with the clerk a “Motion for Reconsideration, Stay of Judgment, and Rule Nisi,” wherein she wrote that “[t]he court entered an order on or about November 26,2012, ordering [her] to pay [a sum of money] to the [sic] Lonnie Payne.” Thereafter, an order denying the motion was filed with the judge on December 19, 2012, and filed with the clerk on December 20, 2012; that order referenced the final order and judgment “entered on November 26, 2012,” and it contained a notation that it had been served upon Miles and her attorney. Also, a certificate of service was attached, whereby the judge’s assistant certified that she served by United States mail and by e-mail a copy of the order denying the motion upon Miles’s attorney. Therefore, Miles was notified that the trial judge had stamped the order filed on November 26, 2012, and was on notice of when the time to file a notice of appeal had begun to run.

That Miles did not realize that the 30-day period started on the date of the judge’s stamp is no excuse. “It is black letter law that ignorance of the law is no excuse.” “Although in general we prefer that cases be determined on their merits, we . . . conclude that this appeal must be dismissed.”

Appeal dismissed.

Ellington, P. J., and Branch, J., concur.

On Motion for Reconsideration.

Miles moves for reconsideration of our decision. She asserts that this court “misunderstood the issue related to the timeliness of the appeal.” She states that “The issue is whether the trial judge, on his oum motion, had authority to file-stamp his own orders.” (Emphasis in original.) Specifically, Miles posits:

OCGA § 9-11-5 (e)... provides that if a party brings to court any pleading, motion, a response to a pleading or motion, or any other document the party wants filed with the court such as a domestic relations financial affidavit, the judge has authority to permit the document to be filed with the judge. In order for the trial judge to allow documents to be filed with him or her, one of the parties must necessarily make such a request. In the absence of a request by a party, the trial judge has no authority for [sic] permit the filing of documents.

(Emphasis in original.)

However, the language of OCGA § 9-11-5(e) is not as Miles states (as set forth above). And the only authority Miles cites to support her position that OCGA § 9-11-5 (e) should be interpreted as she posits is Storch. But in her initial appellate brief to this court, Miles recognized that nowhere in the Storch decision did this court state that the appellant had “requested the order [appealed from] to be filed with the court.” Accordingly, we find no merit in Miles’s argument that Storch is instructive on this issue. Miles cites, and we have found, no authority interpreting OCGA § 9-11-5 (e) to mean that a trial judge has no authority, pursuant to that statute, to allow papers to be filed with him (or her) in the absence of a request by a party. Thus, Miles’s motion for reconsideration is denied.

Decided March 26, 2014

Reconsideration denied April 14, 2014.

Beverly L. Cohen, for appellant.

Portland Campanaro, M. Kay Jackson, for appellee.

Motion for reconsideration denied.

       See OCGA § 5-6-38 pertinently providing that “[a] notice of appeal shall he filed within 30 days after entry of the appealable decision or judgment complained of.”

       OCGA § 5-6-31.

        Storch v. Hayes Microcomputer Products, 181 Ga. App. 627 (353 SE2d 350) (1987).

       Id.

       See generally Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010) (“When a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly.”) (citations omitted).

       The trial judge’s stamp in Storch also contained a date, the judge’s signature, and the name of the court.

        Storch, supra (citation omitted).

       Both the final order and the judgment awarding attorney fees specified the amount of attorney fees Miles was required to pay.

        Govt. Employees Ins. Co. v. Dickey, 255 Ga. 661, 662 (340 SE2d 595) (1986); OCGA § 1-3-6 (“After they take effect, the laws of this state are obligatory upon all the inhabitants thereof. Ignorance of the law excuses no one.”).

        Storch, supra at 628.

       Supra.

       See Storch, supra at 627-628 (no indication that either party had requested the order appealed from he filed with the trial judge).