author: MCFADDEN, Judge.

text:
    A12A2261, A12A2262, A12A2341.
    LACY v. LACY (three cases).
    (740 SE2d 695)
   MCFADDEN, Judge.

These three appeals, which we have consolidated for review, arise out of a custody dispute in which there has not yet been a final hearing. The rulings on appeal were by three different judges of the Superior Court of Morgan County. The dispute is between James Lacy (the father) and Emily Lacy (the mother), who are in the midst of divorce proceedings. Judge Hulane E. George of the Superior Court of Morgan County conducted a two-day hearing in late April 2012 and then issued a temporary order giving the parties joint legal custody and the mother primary physical custody of their three minor children. On May 4, 2012, the father filed an emergency motion for change in custody.

In Case No. Á12A2261, the father appeals from an order in which Judge John Lee Parrott denied his emergency motion for a change in custody, enjoined the father from contact with the children until further review by Judge George, enjoined the parents from directly contacting each other, and ordered the father to pay the mother’s attorney fees. In Case No. A12A2262, the father appeals from an order in which Chief Judge William A. Prior, Jr., denied the father’s motion to vacate or for new trial on the emergency change-in-custody motion, denied the father’s motion to recuse all the superior court judges in the Ocmulgee Circuit, voluntarily recused himself, and directed that all further motions be filed with Judge George. And in Case No. A12A2341, the father appeals from an order in which Judge James L. Cline, Jr., continued the injunction barring the father from contáct with the children, extended that bar to include social networking websites, and enjoined both parents from engaging in certain behavior on social networking websites.

As detailed below, we find as follows. In Case No. A12A2261, we affirm in part and vacate in part. We find that the father has not shown that Judge Parrott was required to recuse himself sua sponte or that he abused his discretion in denying the father’s motion for emergency change-in-custody and temporarily restricting the father’s contact with the children; accordingly we affirm those parts of Judge Parrott’s order. We find, however, that the order fails to specify the statutory basis for the attorney fee award and we vacate that portion of the order and remand Case No. A12A2261 to the trial court for further proceedings.

In Case No. A12A2262, we affirm Chief Judge Prior’s order in its entirety, finding that he was not disqualified from entering the order, that he was correct in denying the father’s motion to recuse as untimely and lacking the necessary supporting affidavit, and that the father has not shown he was entitled to a hearing before the judge entered that order.

In Case No. A12A2341, we affirm Judge Cline’s order in its entirety, finding that he was not required to recuse himself sua sponte and that he was authorized to impose the restrictions on internet behavior contained in that order.

1. Facts and procedural posture.

The father filed a complaint for divorce in March 2012. Judge Hulane E. George of the Superior Court of Morgan County conducted a hearing on April 24 and 30,2012, and then issued a temporary order (signed on May 3, 2012, nunc pro tunc to April 30, 2012, and filed on May 9, 2012) giving the parties joint legal custody and the mother primary physical custody of the children.

On May 4, 2012, the father filed a motion for emergency hearing in which he sought a change in custody on the ground that, two days earlier, the mother had driven under the influence of alcohol with one of the children in the car. Judge John Lee Parrott of the Superior Court of Morgan County conducted the emergency hearing. At that hearing, evidence was presented that the father and a law enforcement officer smelled alcohol on the mother’s breath shortly after she had driven her car with one of the children inside. No other evidence was presented, however, regarding whether the mother was intoxicated. The law enforcement officer testified that he did not perform any field sobriety tests or other tests on the mother, and he testified that her demeanor was calm and that she showed no signs of intoxication other than the smell of alcohol on her breath. Judge Parrott held the evidence was insufficient to support the father’s emergency motion for change in custody, and he denied the motion in a May 9, 2012 order.

Judge Parrott also held in the May 9 order that the father had admitted having “negative conversations and actions with the children,” and he enjoined the father from any contact with the children until further ruling by Judge George (to whom the divorce action was assigned). He also enjoined each party from contacting the other, except through their attorneys, and he ordered the father to pay the mother’s attorney fees.

Ten days after ruling on the emergency motion, Judge Parrott resigned his position as a judge. On May 24, 2012, the father filed a motion to recuse all superior court judges in the Ocmulgee Circuit, on the ground that Chief Judge William A. Prior, Jr., was related to the mother and children and that Chief Judge Prior’s son, Robert Prior, was a witness in the case. (Robert Prior is married to the mother’s aunt and had submitted an affidavit attesting to the mother’s character and parenting abilities.) Also on May 24, the father moved to vacate or for a new trial on his emergency motion. The next day, the mother petitioned for contempt, alleging that the father had failed to pay child support required under the April 30 temporary order or the attorney fees required under the May 9 order. It appears from the record that Judge George was not available to consider these motions.

On May 31, 2012, Chief Judge Prior issued an order in which he ruled as follows. First, he denied the father’s motion to recuse the judges of the Ocmulgee Circuit on the grounds that the motion was untimely and that it failed to contain a supporting affidavit as required by the Uniform Superior Court Rules (USCR). He then voluntarily recused himself from the case because his son was a witness. Finally, he denied the father’s motion for new trial and directed that “any further motions of any type should be filed with Judge Hulane E. George, who initially heard this case and who will make further decisions in regard to this case.”

The father sought a certificate of immediate review of the trial court’s May 31 order, which the trial court denied. On June 7, the father filed a notice of appeal from the May 9 order. On June 18, he filed a notice of appeal from the May 31 order.

Subsequently, Judge James L. Cline, Jr., of the Superior Court of Morgan County entered an order on the mother’s contempt petition. The order was filed on July 5, 2012, and was dated June 28, 2012, nunc pro tunc to June 13, 2012. Among other things, Judge Cline enjoined the father from violating the May 9 order’s prohibition against contact with the children, extended that prohibition to contact with the children through social networking websites, and enjoined the parties from posting statements about each other or the case on social networking websites. The father filed a notice of appeal from this order on July 11, 2012.

2. Contents of the father’s briefs.

As an initial matter, we note that the father’s briefs are rife with discourteous and disparaging comments regarding the Ocmulgee Circuit judiciary in general and Judge Parrott and Chief Judge Prior in particular. The sources of the father’s criticism appear in large part to be Judge Parrott’s subsequent resignation (which the father has not shown to have any relevance to or connection with the divorce proceedings underlying these appeals) and Chief Judge Prior’s alleged relationship with the mother and children (a relationship which, as discussed below, Georgia law does not recognize). This Court’s rules forbid the disparaging personal remarks about the judges that the father has made in his briefs. See Court of Appeals Rule 10.

While we have not sanctioned the father for this behavior, but see Court of Appeals Rule 7, we take the opportunity to comment that the father’s failure to present his arguments in compliance with this Court’s rules has done nothing to advance his cause and has hindered our resolution of these appeals.

3. Appellate jurisdiction.

The mother has moved to dismiss all three appeals and has sought sanctions for frivolous appeal on the ground that this Court lacks appellate jurisdiction. This Court, rather than our Supreme Court, has jurisdiction because the orders on appeal were entered in a pending divorce action in which no final judgment of divorce has issued, see Egeland v. Egeland, 279 Ga. 565 (619 SE2d 596) (2005) (where no final judgment of divorce has issued, appeal seeking review of order awarding child custody in pending divorce action does not invoke subject matter jurisdiction of Supreme Court of Georgia). Although the orders on appeal are interlocutory, they are now subject to direct appeal under OCGA § 5-6-34 (a) (11). See generally Collins v. Davis, 318 Ga. App. 265, 268-269 (1) & n. 17 (733 SE2d 798) (2012) (holding that clear and unambiguous language of OCGA § 5-6-34 (a) (11) authorizes direct appeal of any .order in proceeding in which child’s legal custody, physical custody or visitation is an issue, and noting that it is for the legislature to narrow scope of this right of direct appeal). Accordingly, we deny the mother’s motions to dismiss and motions for sanctions in all three appeals.

Case No. A12A2261

In Case No. A12A2261, the father appeals from the May 9, 2012 order in which Judge Parrott denied the father’s emergency change-in-custody motion, enjoined the father from contact with the children, and required the father to pay the mother’s attorney fees. The father argues that Judge Parrott should have recused himself, that he abused his discretion by failing to consider the children’s best interests, that he improperly based the ruling on evidence not presented in court, and that he had no basis to suspend visitation or award attorney fees.

4. Recusal.

The father never moved for Judge Parrott’s recusal. Nevertheless, he argues that the judge was obligated to recuse himself sua sponte because he had a personal bias or prejudice toward the mother and because he had personal knowledge of the facts pertinent to the emergency change-in-custody motion. We disagree.

“There is no duty for a trial judge to sua sponte recuse himself absent a violation of a specific standard of OCGA § 15-1-8 or Canon 3 (E) (1) (a) through (c) of the Code of Judicial Conduct, which is not waived by a party after disclosure.” (Citation and punctuation omitted.) Hargrove v. State, 299 Ga. App. 27, 31 (2) (681 SE2d 707) (2009). Here, the father bases his claim that Judge Parrott should have recused himself on Canon 3 (E) (1) (a), which pertinently provides that judges shall disqualify themselves in any proceeding where their impartiality might reasonably be questioned, including when the judge has personal knowledge of disputed evidentiary facts concerning the proceeding. In construing Canon 3, we have

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

(Citations and punctuation omitted.) Lemming v. State, 292 Ga. App. 138, 141 (1) (663 SE2d 375) (2008).

In support of his argument that Judge Parrott was required to recuse under Canon 3, the father points to a photocopy of a comment on his Facebook page, purportedly made by the mother several weeks after the hearing occurred, in which she boasted: “[J]udge [P]arrott and my dad ha[d] a meeting the week before our case and guess what you lost your kids.” Even if this is competent evidence that Judge Parrott met with the mother’s father at some time before the hearing, the mother’s father is not a party to this case, and the Facebook comment does not show, as the father asserts, that Judge Parrott gleaned any personal knowledge of the facts involved in this case from a meeting between the two. The comment provides no information at all about the circumstances of the meeting or what, if anything, was discussed. Although, in the comment, the mother suggested that there was a connection between the meeting and the outcome of the hearing, neither her perception nor the perception of the father is dispositive on this issue. See Lemming, 292 Ga. App. at 141 (1). We cannot say that an indefinite reference to a meeting between the judge and someone not a party to the case necessarily “support[s] the inescapable conclusion that a reasonable person would consider [Judge Parrott] to [have] harbor[ed] a bias that affect[ed] his ability to be impartial.” (Citations omitted.) Id.

The father also argues that Judge Parrott’s conduct during the emergency hearing revealed his personal knowledge of relevant facts and his bias toward the mother and against the father.

[The father] does not, however, demonstrate that [he] ever made a motion for recusal or a motion for mistrial on these grounds. [His] failure to do so is fatal to this argument. If [the father] was aware of a possible basis for recusal [at the emergency hearing], [he] had no right to sit back, hope for a favorable ruling . . . , and then raise the issue for the first time in [a subsequent] motion. . . .

(Citations and punctuation omitted.) Harbin v. Roberts, 305 Ga. App. 107, 110 (3) (699 SE2d 36) (2010). See Works v. State, 301 Ga. App. 108, 112 (3) (686 SE2d 863) (2009) (issues regarding the trial court’s alleged bias during trial “were not preserved for appellate review because the record does not show that a motion for recusal or a motion for mistrial [on those grounds] was ever made”) (citation omitted). See also English v. State, 290 Ga. App. 378, 381-382 (2) (659 SE2d 783) (2008).

We disagree with the father that the transcript of the hearing reveals the ominous intent that the father ascribes to the judge or gives reason to suspect that the judge was influenced by any extrajudicial knowledge. See Cranford v. State, 275 Ga. App. 474, 477 (3) (621 SE2d 470) (2005). As detailed below, the evidence presented at the hearing authorized Judge Parrott to rule as he did.

5. Abuse of discretion.

At the hearing on the emergency change-in-custody motion, Judge Parrott stated that he was limiting the evidence to that pertaining to the father’s contention that the mother drove under the influence of alcohol with a child in the car (the ground for the motion), rather than reopening the evidence on other matters addressed by Judge George at the temporary hearing less than two weeks earlier. The father argues that, by doing so, the judge failed to consider the best interests of the children.

It is true that “[t]he duty of the judge in all [child custody] cases shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his or her award accordingly.” OCGA § 19-9-3 (a) (2). But we disagree with the father’s contention that Judge Parrott failed to do this. As the judge noted, the custody issue had just been litigated before Judge George. The record on appeal does not contain a transcript of that hearing, and we must assume that Judge George fully considered all of the circumstances pertinent to a best interest determination in granting the mother temporary physical custody of the children pending the divorce proceedings. See Thompson v. Thompson, 288 Ga. 4, 6 (2) (700 SE2d 569) (2010) (“in accordance with the presumption of the regularity of court proceedings, we must assume in the absence of a transcript that there was sufficient competent evidence to support the trial court’s findings”) (citation and punctuation omitted). Judge Parrott was involved in the case solely to address the emergency motion for change of custody, which the father filed on the heels of Judge George’s initial temporary custody ruling. Under these circumstances, we decline to find that he abused his discretion in focusing on the new circumstances that formed the basis of that emergency motion rather than rehearing evidence that had just been considered by Judge George.

Likewise, we find no abuse of discretion in Judge Parrott’s conclusion that the evidence presented at the emergency hearing did not require a change in custody. Although the father alleged that the mother had driven under the influence of alcohol with a child in the car, the hearing evidence did not demonstrate that the mother was impaired. The evidence showed only that witnesses smelled alcohol on the mother’s breath. Georgia law is clear that the odor of alcohol on a driver’s breath “shows only the presence of alcohol and does not support an inference that the driver is intoxicated and it is less safe for her to drive.” (Citation omitted.) State v. Damato, 302 Ga. App. 181, 182 (1) (690 SE2d 478) (2010).

6. Evidence not presented in court.

The father argues that Judge Parrott improperly based his ruling upon unspecified information received through his alleged meeting with the mother’s father and upon “other evidence not properly in the record.” As discussed above, however, the mother’s reference on Facebook to a meeting is not evidence that the judge obtained information relevant to the case from an extra-judicial source, much less that he based his ruling on any such external information. This is especially so given that, in ruling on the emergency motion, the judge explained (and the record shows) that the father failed to present evidence to support the ground asserted for the emergency relief.

7. Bar on contact with the children.

In the May 9 order, Judge Parrott ruled:

Based on the provisions of [Judge George’s] temporary order and the admissions by the [father] of his negative conversations and actions with the children, the visitation rights of the [father] with the minor children are hereby suspended and terminated unless reinstated or provided by Judge George after review of the transcript herein. The [father] shall not communicate directly or indirectly [with] the parties’ children until further order of the Court, with the exception of doing so through counsel and in compliance with [the] temporary order’s provisions.

The father characterizes this ruling as a finding of contempt of provisions of the temporary order, and he argues that, as such, the ruling was improper because Judge George’s temporary order was not filed in court until May 9, 2012, the same day that Judge Parrott entered his order restricting the father’s visitation rights.

The father cites Ire the Interest of K. D., 272 Ga. App. 803, 806 (613 SE2d 239) (2005), for the proposition that a person “cannot have committed contempt by failing to follow an order that was not yet filed with the clerk.” But Ire the Interest ofK. D. concerned a juvenile court’s ability to punish a person for contempt of court for wilfully disobeying an order of the court. Id. at 805-806 (citing OCGA § 15-11-5 (a)). In contrast, Judge Parrott did not punish the father for contempt of court in the May 9 order; he modified the father’s visitation rights and restricted his contact with the children, pending Judge George’s review of the case, based on his finding that the father had engaged in “negative conversations and actions with the children.” The record shows that, at the hearing, the father admitted to telling the children that if he had to pay child support he would have to sell all of his belongings and move out of state to get a job, and that as a result he would not be able to see the children. The father also admitted that, during the nine days between the conclusion of the hearing on the temporary order — at which Judge George orally ruled that the children would be in the mother’s physical custody — and the hearing on the father’s emergency motion, he had multiple disputes with the mother concerning the children’s physical custody that escalated to a level requiring police involvement. Given this evidence, the trial court did not abuse its discretion in suspending the father’s visitation and prohibiting the parents from directly contacting each other, pending review by the judge to whom the divorce proceedings had been assigned. See generally Long v. Long, 303 Ga.App. 215, 217-218 (2) (692 SE2d 811) (2010) (discussing broad discretion of superior court to determine matters of custody, including modifying custodial orders, during pendency of divorce action).

8. Award of attorney fees.

Finally, the father argues that Judge Parrott erred in awarding $1,500 in attorney fees to the mother. The judge did not state the statutory basis for the award. Accordingly, the award of attorney fees is vacated, and “the case is remanded to the trial court for a statement of the statutory basis for the award of attorney fees and any finding that must be made to support it.” Moon v. Moon, 277 Ga. 375, 378 (6) (589 SE2d 76) (2003).

Case No. A12A2262

In Case No. A12A2262, the father appeals from Chief Judge Prior’s May 31, 2012 order. Therein, the judge made several rulings: he denied the father’s motion to recuse all of the judges of the Ocmulgee Circuit on the ground that the motion was untimely and not supported by an appropriate affidavit, see USCR 25.1, 25.2 and 25.3; he denied the father’s motion to vacate Judge Parrott’s May 9 order and grant a new trial on the father’s emergency motion to change custody; he voluntarily recused himself from “any hearing” in the case on the ground that his son “is apparently a witness in the case”; and he directed that all further motions should be filed with Judge George, who initially had heard the case. The father argues that Chief Judge Prior could not rule on the matters addressed in the order because he was disqualified from acting in this case on account of an alleged relationship with the mother and children and on account of his voluntary recusal. He also argues that Chief Judge Prior should have held a hearing on his motion for new trial. And he reiterates his argument that all of the Ocmulgee Circuit judges should be recused. We find no merit in any of these claims.

9. Chief Judge Prior’s ability to act in the case.

(a) Disqualification due to alleged relationship between Chief Judge Prior and the mother and children.

The father asserts that Chief Judge Prior was related to the mother and children, and he argues that, for this reason, the judge was precluded from acting in the case under OCGA § 15-1-8 (a) (2), which pertinently provides: “No judge or Justice of any court . . . shall... [p]reside, act, or serve in any case or matter when such judge is related by consanguinity or affinity within the sixth degree as computed according to the civil law to any party interested in the result of the case or matter.” But the record belies the father’s assertion that the mother and children had a relationship with Chief Judge Prior that is recognized under Georgia law.

The record shows that Chief Judge Prior’s son, Robert Prior, is married to the mother’s aunt. It is true that a “husband is related to his wife’s kindred by affinity in the same degree that she is related by consanguinity.” (Citation omitted.) Eaton v. Grindle, 236 Ga. 324, 325 (223 SE2d 670) (1976). Accordingly, Robert Prior is related to the mother and the children in the case to the same degree that his wife is related to them. But this rule does not affect the relationship between Robert Prior’s father (Chief Judge Prior) and the kindred of Robert Prior’s wife. “Marriage relates the husband to the wife’s kindred, but does not relate any of his kindred to hers.” (Citations and punctuation omitted.) Everett v. Culberson, 215 Ga. 577, 585 (8) (111 SE2d 367) (1959). Accord Edge v. Calhoun Nat. Bank, 155 Ga. 821, 828 (118 SE 359) (1923). Simply put, Chief Judge Prior was not related under Georgia law to the kindred of his son’s wife (Emily Lacy or the Lacy children) and thus was not disqualified from acting in this case under OCGA § 15-1-8 (a) (2).

(b) Voluntary recusal.

Likewise, Chief Judge Prior’s voluntary recusal does not require us to reverse the May 31 order. Chief Judge Prior made clear in the order that he was voluntarily recusing himself from “any hearing in this case” because his son “is apparently a witness in the case.” “A voluntary recusal shall not be construed as either an admission or denial to any allegations which have been set out in [a recusal] motion.” USCR 25.7. See Moody v. State, 256 Ga. App. 65, 67 (567 SE2d 709) (2002). And the Chief Judge’s son did not appear as a witness in connection with the rulings made in the May 31 order — the denial of the father’s motion to recuse all of the judges in the Ocmulgee Circuit, the denial of the father’s motion for a new trial on his emergency motion (given that, as discussed above, the hearing conducted by Judge Parrott on the emergency motion was limited to the issue of whether the mother had driven under the influence with a child in the car), and the instruction that all further motions be directed to Judge George, to whom the case had been assigned. See id. (affirming ruling of judge vacating transfer order, although judge also voluntarily recused himself from further proceedings; noting that facts and circumstances presented by case were insufficient to call reasonably into question judge’s impartiality on issue on which he ruled).

10. Hearing on motion for new trial.

The father argues that Chief Judge Prior erred in not holding a hearing before denying the father’s motion for new trial, in which the father challenged Judge Parrott’s ruling on the emergency motion for change in temporary custody. See PHF II Buckhead v. Dinku, 315 Ga. App. 76, 80-81 (2) (726 SE2d 569) (2012) (holding trial court erred in denying motion for new trial without first holding hearing on motion in accordance with USCR 6.3). The mother responds that, despite its nomenclature, the father’s motion was not in fact a “motion for new trial” and consequently the judge was not required to hold a hearing before deciding the motion. See generally Martin v. Williams, 263 Ga. 707, 708 (1) (438 SE2d 353) (1994) (“substance, rather than nomenclature, governs pleadings”) (citations omitted).

We need not resolve the issue of the nature of the father’s purported motion for new trial. Even if the father should have received a hearing on that motion, the procedural posture of this case renders the motion moot, because the challenges the father raised in the motion have already made their way through the appeals process in the father’s direct appeal of Judge Parrott’s order in Case No. A12A2261. See Housing Auth. of the City of Atlanta v. Geter, 252 Ga. 196, 197 (312 SE2d 309) (1984). The propriety of Judge Parrott’s order on the change-in-custody motion has been finally decided, and there is nothing remaining for the trial court to deal with in connection with the father’s attempt to receive a “new trial” on the change-in-custody motion. See id.

11. Request for recusal of all Ocmulgee Circuit judges.

In the May 31, 2012 order, Chief Judge Prior denied the father’s motion to recuse all of the superior court judges in the Ocmulgee Circuit on the grounds that the motion was untimely and lacked a supporting affidavit pursuant to the Uniform Superior Court Rules. In Case No. A12A2262 the father does not set forth a claim of error regarding this ruling that is separate from his claim that Chief Judge Prior lacked authority to issue the ruling. (He does, however, enumerate this ruling as error and challenge the merits of the ruling in Case No. A12A2341, which does not involve an appeal from this ruling.) But in his appellate brief, the father does assert that all of the Ocmulgee Circuit judges should be recused. “In keeping with our statutory mandates to construe the . . . Appellate Practice Act liberally so that all points raised in an appeal are considered,” Lee v. Ga. Power Co., 296 Ga. App. 719, 723 (5) (675 SE2d 465) (2009) (citation and punctuation omitted), we have reviewed Chief Judge Prior’s determination that the father’s motion to recuse was deficient, and we find no error.

First, the motion was not “timely filed” as required by USCR 25.1. The father was required to file his motion to recuse “not later than five (5) days after [he] first learned of the alleged grounds for disqualification.” USCR 25.1. The father based his motion to recuse upon information contained in the Robert Prior affidavit, which the mother had filed with the court and served on the father’s counsel on May 8, and on Judge Parrott’s order entered May 9 in the case. But he did not file the motion to recuse until May 24, 2012. Consequently, the record shows that the motion was untimely.

Second, the motion was not supported by “affidavit(s) which . .. fully assert the facts upon which the motion is founded,” as also required by USCR 25.1. Such an affidavit cannot consist of bare conclusions and opinions but must

clearly state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extra-judicial conduct or statements, which demonstrate either bias in favor of any adverse party, or prejudice toward the moving party in particular, or a systematic pattern of prejudicial conduct toward persons similarly situated to the moving party, which would influence the judge and impede or prevent impartiality in that action.

USCR 25.2. The father, however, did not submit his own affidavit in support of the motion to recuse, and the Robert Prior affidavit merely stated that the affiant had known the mother — whom he described as his “niece” — her entire life and that he thought highly of her character and parenting abilities. The Robert Prior affidavit offered no reason to believe that all of the Ocmulgee Circuit judges harbored bias or prejudice in this case. Neither that affidavit nor the May 9 order of Judge Parrott met the requirements of an affidavit in support of the father’s motion to recuse.

When a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to he true, whether recusal would be warranted.

USCR 25.3. If all three of these conditions precedent are not met,

the trial judge shall deny the motion on its face as insufficient, and there is no need for the trial judge to assign the motion to another judge to hear. It is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious.

(Citations and punctuation omitted.) Gould v. State, 273 Ga. App. 155, 159 (4) (614 SE2d 252) (2005).

Chief Judge Prior’s decision that the motion to recuse all of the Ocmulgee Circuit judges did not meet all of the conditions precedent for a recusal motion did not require an exercise of discretion, and we review that decision de novo. See Mayor & Aldermen of the City of Savannah v. Batson-Cook Co., 291 Ga. 114, 119 (1) (728 SE2d 189) (2012). We find no error in the decision, because the motion to recuse was untimely and was not accompanied by an affidavit satisfying the requirements of the Uniform Superior Court Rules. See Gould, 273 Ga. App. at 160 (4).

Case No. A12A2341

In Case No. A12A2341, the father appeals from the order of Judge Cline, filed on July 5, 2012, following a hearing on a contempt motion brought by the mother. He argues that Judge Cline erred in imposing what the father characterizes as a “gag order” on comments made by the parties on social networking websites concerning each other or the divorce proceedings. He also argues that Judge Cline should have recused himself and argues that “[t]he trial court erred by finding that [the father’s] motion for recusal was untimely and without the required affidavit,” even though Judge Cline’s order made no such finding. None of the father’s arguments have merit.

12. Provision restricting behavior on social networking websites.

Pertinent to this appeal, the July 5 order contained a provision that “restrained and enjoined [the parties] from posting matters about each other or their current litigation on Facebook or other social networking sites.” The father argues that this was error because the court did not apply the “substantial likelihood of material prejudice” standard or make specific findings of facts in that regard, as the father asserts is required under Atlanta Journal-Constitution v. State, 266 Ga. App. 168 (596 SE2d 694) (2004). The decision in Atlanta Journal-Constitution, however, concerned balancing attorneys’ First Amendment rights with the state’s interest in fair trials when addressing potentially prejudicial pretrial publicity. See id. at 169-171 (2). In contrast, as the mother points out, this case involves a court’s authority in a divorce and child custody proceeding to “make prohibitive or mandatory orders, with or without notice or bond, and upon such terms and conditions as the court may deem just.” OCGA § 9-11-65 (e).

We have not found any authority specifically addressing the issue of restricting parents’ behavior on social networking websites during a divorce and child custody proceeding. But our Supreme Court has held that a trial court can require the parties in a divorce proceeding “to refrain from making derogatory remarks about the other before the children.” Maloof v. Maloof, 231 Ga. 811, 812 (6) (204 SE2d 162) (1974). Likewise, it has upheld findings that parties in divorce proceedings were in contempt for violating orders that restrained them from behavior including telephoning the other’s workplace or communicating with each other. See Roberts v. Roberts, 226 Ga. 203, 205-207 (2), (5) (173 SE2d 675) (1970); Baxter v. Baxter, 226 Ga. 129 (172 SE2d 695) (1970). The record in this case contains evidence that both the father and the mother, in discussing their divorce proceedings, made derogatory and disparaging comments about each other on Facebook. We find no error in the restriction Judge Cline placed upon the parties’ behavior on social networking websites.

13. Judge Cline’s failure to recuse.

The father argues that Judge Cline erred in failing to recuse himself after Chief Judge Prior denied the father’s request to recuse all of the Ocmulgee Circuit judges. The record does not show, however, that the father moved for Judge Cline to recuse after Chief Judge Prior denied the motion pertaining to all of the Ocmulgee Circuit judges. And we find no ground requiring Judge Cline to recuse himself sua sponte. See Lemming, 292 Ga. App. at 141 (1).

Decided March 25, 2013.

James R. Oxford, Jr., for appellant.

Brenda H. Trammell, for appellee.

14. Ruling on the motion to recuse all of the Ocmulgee Circuit judges.

The father argues that the “trial court” erred in finding that his motion to recuse the Ocmulgee Circuit judges was untimely and without the required affidavit. But Judge Cline’s July 5 order made no such findings. Moreover, as discussed above, Chief Judge Prior did not err when he denied the motion to recuse on these grounds in the May 31 order. See Division 11, supra.

15. Summary.

As detailed above, the three orders that are the subject of these appeals are affirmed, except that the attorney fee award in the May 9 order (at issue in Case No. A12A2261) is vacated and that case is remanded to the trial court for a statement of the statutory basis for the award of attorney fees and any finding that must be made to support it.

Judgment affirmed in part and vacated in part, and case remanded with direction in Case No. A12A2261. Judgment affirmed in Case No. A12A2262. Judgment affirmed in Case No. A12A2341.

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


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A12A2349.
    DAVIS v. THE STATE.
    (740 SE2d 707)
   MILLER, Presiding Judge.

Convicted ofthree counts of aggravated assault (OCGA § 16-5-21 (a) (2)), Donald Maurice Davis appeals from the denial of his motion for new trial, contending that the trial court erred in not admitting evidence of a juvenile charge pending against one of the victims, in allowing into evidence his custodial statements, and in denying his motion for directed verdict. Finding no error, we affirm.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict, and Davis no longer enjoys a presumption of innocence. Bryant v. State, 304 Ga. App. 755, 755 (1) (697 SE2d 860) (2010). “We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find [Davis] guilty beyond a reasonable doubt.” (Citation and punctuation omitted.) Id.

So viewed, the evidence was that William Marsh and Demonte Jackson were friends who had grown up within blocks of each other in the same DeKalb County neighborhood. Both Marsh and Jackson knew Eddie Trammell, who also grew up there. Christopher Howard was Marsh’s uncle and also lived in the area. Howard, a private investigator, was trained in the use of firearms and was licensed to carry one. Howard knew Jackson because he spent time with Marsh at Howard’s house.

On June 8, 2008, Marsh and Jackson had been hanging out together all day and had been playing video games at the home of Marsh’s cousin, Jamal Banks, that evening. Around 9:30 p.m., Marsh, in his mother’s blue Toyota Corolla, drove Jackson home, and Banks rode along. As they got out of the car at Jackson’s house and began walking up his driveway, they noticed Trammell and a couple of men standing on the corner near the house. Trammell approached Jackson, and a fight ensued between Jackson and Trammell based on a prior disagreement. According to Marsh, Trammell and his associates were “packing guns.” Marsh stepped between Jackson and Trammell. Marsh, Jackson, and Banks then got back in the Corolla and went to a party about a mile from their neighborhood.

Marsh left the party around midnight to drive Jackson home. On the way, Marsh’s cell phone rang, and Jackson answered it to hear Trammell yelling about the fight. Jackson gave Marsh the phone, and the yelling continued. As they were approaching Jackson’s house, a silver Jeep Cherokee pulled adjacent to the driver’s side of the Corolla, and shots were fired from the Jeep into the Corolla, striking Marsh and Jackson. Marsh pulled off, followed by the Jeep, and called Howard to tell him about the situation. Howard told Marsh to drive to his subdivision, pull into the first cul-de-sac, and he would meet them there. Marsh drove into the cul-de-sac, and he and Jackson got out and ran toward Howard’s house, using different routes.

When Howard arrived in his Charger at the cul-de-sac, he saw the Corolla parked with no one in it, and blood on the dashboard and seats. Howard then heard gunfire and saw the Jeep Cherokee coming toward him with gunfire coming out the windows. Howard was struck by at least two shots. As the Jeep approached him, Howard began firing back. Howard saw two people in the front seat and at least one person in the back seat who was firing at him. Howard saw the face of the shooter by the light of a muzzle flash and described him as heavyset, with dreadlocks. During his return fire, Howard was certain that he had hit the shooter firing at him. At trial, Howard identified Davis as the shooter and stated that he was “110 percent” certain of his identification. Marsh and Jackson both identified Trammell as the one who shot them.

After the Jeep fled, Howard returned to his home where he found Marsh and Jackson, both wounded. Howard’s wife had called police, and all three victims were transported to a hospital.

Trammell drove the Jeep to a nearby Shell station and abandoned it. Officers later found the Jeep with several bullet holes in it and glass missing from the back window. Two cartridge casings were found on the rear passenger floorboard. Davis was picked up by a friend at the Shell station and taken to Southern Regional Hospital.

Quinton Wright, another childhood friend of Davis, testified regarding a similar transaction introduced to show Davis’s course of conduct. Wright testified that, in 2007, he was visiting with his girlfriend, Davis’s sister. Wright was disciplining his girlfriend’s son when Davis objected, and the two men got into a fight. After the girlfriend separated the two, Davis pulled a gun from the back of his pants and pointed it at Wright. Davis left the house when police were called. Later that day, Davis was in a car that pulled alongside Wright’s car, and Davis, sitting in the rear seat, fired at Wright and struck his car twice.

1. Davis’s first enumeration is that the trial court erred “by failing to admit evidence of a juvenile case which was pending against a primary state witness at the time the witness gave his statement to police.” We disagree.

During her cross-examination of victim Jackson, defense counsel advised the trial court that she wished to question Jackson about a “burglary charge that was pending at the time of the fight between [him] and Eddie Trammell.” Defense counsel pointed out that Jackson and Trammell were charged as co-defendants in juvenile court for a burglary that occurred in October 2007. Defense counsel wanted to cross-examine Jackson to show that his relationship with Trammell was strained by the pending charge, and this evidence would go to Jackson’s motive when giving a statement to the police.

When asked by the trial court to respond to the State’s objection that this had no relevance regarding Davis, defense counsel stated:

The case is going to come down to the credibility of the three core witnesses, Marsh, Jackson, and Howard, and although Marsh and Jackson have not identified Davis as the shooter, Howard is going to come in here and say that, so their credibility to me is linked. They are all three together. They come to court together. They hang out together all the time, so a dent in one’s credibility, I believe, can apply to the other, and there were omissions left out to the officers. There have been omissions from the stand, and it’s a matter of attacking their credibility.

First, we note that, although the Sixth Amendment right to confrontation secures the right of cross-examination, Davis v. Alaska, 415 U. S. 308, 315 (2) (94 SC 1105, 39 LE2d 347) (1974), the right of cross-examination “is not an absolute right that mandates unlimited questioning by the defense[.]” (Citation and punctuation omitted.) Howard v. State, 286 Ga. 222, 225 (2) (686 SE2d 764) (2009). 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.” (Citation and punctuation omitted.) Young v. State, 290 Ga. 441, 444 (5) (721 SE2d 839) (2012); see also Sanders v. State, 290 Ga. 445, 446 (2) (721 SE2d 834) (2012). 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. Hampton v. State, 289 Ga. 621, 626-627 (5) (713 SE2d 851) (2011).

Further, unlike the argument presented here based on the Sixth Amendment right to confrontation and Davis v. Alaska, supra, the argument below was premised on attacking the group credibility of the three victims. Having made no objection below based on his right to confrontation, Davis has waived his right to raise such an objection on appeal. See Walker v. State, 282 Ga. 703, 706 (4) (653 SE2d 468) (2007); Weeks v. State, 316 Ga. App. 448, 450 (1) (729 SE2d 570) (2012).

2. In his second enumeration, Davis contends that the trial court erred “by allowing admission of appellant’s custodial statements” because he was not given Miranda warnings. We disagree.

Miranda protections adhere when an individual is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. A court should evaluate the second prong of the test objectively: an individual is in custody if a reasonable person in the place of the defendant would feel so restrained as to equate to a formal arrest.

(Citations and punctuation omitted.) Tolliver v. State, 273 Ga. 785, 786 (546 SE2d 525) (2001).

“When an appellate court reviews a trial court’s grant or denial of a motion to suppress, the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review.” State v. Nash, 279 Ga. 646, 648 (2) (619 SE2d 684) (2005).

The trial court found that Davis was not in custody at the time he made his first statement to Detective Houlroyd at Southern Regional Hospital.

During the Jackson/Denno hearing, Davis testified that, while in the emergency room at Southern Regional Hospital being treated for a gunshot wound to the head, he was conscious, but not alert. According to Davis, his first interaction with a police officer was 45 minutes after he arrived at the hospital when a uniformed officer asked him if he knew who shot him. Davis responded that he did not know who shot him, and the officer said “okay” and left the room. Then, Davis’s mother arrived, and he talked to her for about 30 minutes.

DeKalb Detective Houlroyd was sent to Southern Regional “to locate the victim of the crime, look at his injuries, and if the person is able to speak, then we are tasked with getting a written statement from them.” (Emphasis supplied.) Houlroyd located Davis in a trauma room being treated by medical staff at approximately 4:45 a.m. According to Houlroyd, Davis was not restrained in any way and, had he wanted to get up and leave, he was free to leave. At no point during his testimony did Davis state that he expressed the desire to leave or that he was told he could not leave. His only assertion was that he was told by one of the Clayton County officers that he needed to wait and talk to the DeKalb detective. Davis acknowledged that he had not been released from treatment or discharged at the time he spoke with Houlroyd.

When Houlroyd asked Davis what happened, Davis stated:

I was coming from Whitehall Forest, when I was about to turn onto Bouldercrest, I got shot as I past [sic] the wishing well. I just saw a flash, pow, and my ears were ringing. I wrecked my jeep, it’s a gray one. I pulled into the Shell station. A guy named “D” took me to the hospital. He just happened to pull into the Shell station, after I got out the car and was about to run into the Shell station.

Davis signed the statement transcribed by the detective, and Houlroyd left the hospital and returned to his DeKalb County office.

Davis argues that Miranda warnings were required because interviewing Detective Houlroyd “told [him] he was only free to leave after he gave his statement” and because “visitation with [him] was restricted.”

In support of this argument, Davis cites only to argument by the prosecutor and Davis’s defense counsel, which are not evidence. See Baker v. State, 316 Ga. App. 122, 125 (5) (728 SE2d 767) (2012) (argument of counsel is not evidence); Holsey v. State, 316 Ga. App. 801, 805 (2) (729 SE2d 465) (2012) (trial court instructs jury that arguments of counsel are not evidence).

As indicated by Davis’s statement above regarding his visit with his mother, there is no evidence that he was isolated.

When [Davis] spoke to the law enforcement officers at the hospital, he had not been released from medical treatment or told by medical personnel that he could leave the hospital. [] More significantly, he was not isolated by police for questioning. Thus, he was in a medical, rather than an investigative setting.

(Citations and punctuation omitted.) Jennings v. State, 282 Ga. 679, 681 (3) (653 SE2d 17) (2007). Moreover, Davis was initially questioned by Houlroyd as a victim and not as a potential suspect. Therefore, the evidence supports the trial court’s finding that Davis was not in custody for the purpose of Miranda at the time he made his initial statement to Houlroyd. He was fully advised of his Miranda rights before the later statement given to Detective Kitchen after he was summoned by Davis to talk to him at the hospital.

3. Davis argues that the trial court erred in denying his motion for a directed verdict on the counts involving victims Marsh and Jackson, as there was insufficient evidence that Davis fired shots at them and “there was no evidence to exclude every reasonable hypothesis of innocence.”

We review the denial of this motion under the same standard as that used to review the sufficiency of the evidence. We view the evidence with all inferences in favor of the verdict, determining only the legal sufficiency of the evidence, and not weighing the evidence or determining the credibility of the witnesses. Slaughter v. State, 289 Ga. 790, 792-793 (2) (716 SE2d 180) (2011).

Decided March 25, 2013.

Derek M. Wright, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

Davis argues that only his “mere presence” and “mere association” with Trammell were shown and that was insufficient to support his conviction.

Here, a review of the record reveals more than mere presence and association. In his custodial statement given to Kitchen, Davis said that he received a telephone call from “Weezy” who asked to borrow a bullet clip because someone shot at his cousin. Davis took his .45 caliber clip, gave it to Weezy, and went for a ride with Weezy and his cousins in a Jeep for about an hour to look for the shooter. Davis said they were looking “for a guy in like a blue Corolla.” According to Davis, they located the blue car, and Weezy shot at it. Then, they drove into a cul-de-sac and saw a Charger with a guy with a gun standing outside of it and that is when Davis got shot.

Although Davis denied having anything to do with the shootings of Marsh and Jackson, even if he was not involved in all of the crimes charged, those offenses could be imputed to him as an accomplice or co-conspirator because of his actions as a party to the shooting of Howard. See Teasley v. State, 288 Ga. 468, 470 (704 SE2d 800) (2010); Beadles v. State, 259 Ga. 519, 522 (1) (385 SE2d 76) (1989). Therefore, we find no error in the trial court’s denial of Davis’s motion for directed verdict.

Judgment affirmed.

Ray and Branch, JJ., concur.

       Count 1, victim William Marsh; Count 2, victim Demonte Jackson; Count 3, victim Christopher Howard.

       Trammell was tried by a jury before Davis’s trial and convicted on all three counts of the indictment.

       See Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       This was apparently a Clayton County officer since Southern Regional Hospital is located there.

       In fact, Davis spent the night at the hospital after being moved to a room.


author: Barnes, Presiding Judge.

text:
    A12A2407.
    DRAWDY CPA SERVICES, P.C. et al. v. NORTH GA CPA SERVICES, P.C. et al.
    (740 SE2d 712)
   Barnes, Presiding Judge.

Drawdy CPA Services, PC., and John T. Drawdy, Jr. (“Drawdy”) appeal the trial court’s order denying their motion for an injunction against North GA CPA Services, PC., and Jamie Howell Pritchett (“Pritchett”). For the reasons that follow, we affirm.

Drawdy sued Pritchett, claiming she breached her employment agreement with him by creating her own CPA firm and then soliciting his clients. He sought injunctive relief against Pritchett to prevent what he contended was continuing misappropriation of client information and trade secrets. Pritchett answered and counterclaimed for attorney fees under OCGA § 9-15-14, and several months later Drawdy filed an “emergency motion” for injunctive relief to prevent Pritchett from accessing Drawdy’s “client portals” and “siphoning off” Drawdy’s clients.

The trial court held a hearing on the emergency motion. Both parties testified, and Pritchett called four witnesses, all of whom had been clients of Drawdy CPA but testified that they sought out Pritchett on their own after she started her own firm. One of those clients also testified that his company printed and distributed a direct market mailer for Pritchett to a list of 2,500 people who fit a particular demographic profile compiled by a third-party company. Additionally, Pritchett submitted 113 affidavits from clients of Pritchett’s who were formerly clients of Drawdy’s, and who all verified that Pritchett did not solicit them to leave Drawdy. Drawdy submitted the affidavit of one of his clients who had received the direct mail flyer from Pritchett at his home address.

The trial court denied Drawdy’s motion for injunctive relief. The court found that although Pritchett had inadvertently solicited one of Drawdy’s clients via a mass market mailer, Drawdy had submitted insufficient evidence to establish that Pritchett violated her employment agreement or had deliberately solicited Drawdy’s former clients. The court also concluded that Pritchett did not obtain client information that belonged to Drawdy, but accessed her clients’ tax returns through a “client portal” on Drawdy’s website. Finally, the court noted, the tax returns and information contained in them belonged to the client, as Drawdy had admitted.

The trial court granted Drawdy a certificate of immediate review, and Drawdy filed an application for interlocutory appeal in the Supreme Court of Georgia. The Supreme Court transferred the application to this court, noting in an order that the denial of injunctive relief was ancillary to the underlying legal issues and thus that court’s equity jurisdiction was not invoked. This court granted the application because the denial of a motion for interlocutory injunction is directly appealable under OCGA § 5-6-34 (a) (4). See OCGA § 5-6-35 (j).

Drawdy contends that the trial court erred in denying his motion for an injunction. “An interlocutory injunction is a device used to maintain the status quo of the parties pending final adjudication of the case,” and should not be granted “except in clear and urgent cases where there is a vital necessity to prevent a party from being damaged and left without a remedy.” (Citations omitted.) Atlanta Area Broadcasting v. James Brown Enterprises, 263 Ga. App. 388, 392-393 (587 SE2d 853) (2003). Whether to grant or deny an injunction rests in the sound discretion of the trial court judge, “according to the peculiar circumstances of the particular case.” (Citations and punctuation omitted.) Slautterback v. Intech Mgmt. Svcs., 247 Ga. 762, 765-766 (279 SE2d 701) (1981). The appellate courts will not reverse a trial court’s decision on a temporary injunction “unless there was no evidence upon which to base the ruling or it was based on an erroneous interpretation of the law.” Atlanta Area Broadcasting, 263 Ga. App. at 393.

1. Drawdy contends first that the trial court erred in denying a temporary injunction because the nondisclosure covenant in Pritchett’s employment agreement was reasonably designed to protect Drawdy’s confidential business information accessible only to former employees of Drawdy. Drawdy testified that he had a “client portal” on his website to give clients access to their tax returns or other accounting information. Each client had a unique username and password that allowed him to access only that client’s documents. After Pritchett left, Drawdy determined through a log-in history report that the client portals of multiple clients had been entered from the same computer, which turned out to be Pritchett’s.

Pritchett admitted that she entered Drawdy’s client portals with the express permission of her clients, who were formerly Drawdy’s clients, to obtain copies of their tax returns. Drawdy’s predecessor began using the portal system to save the expense and time of providing hard copies of tax returns to clients, to give them access to the returns at any time, and to allow them to share their access information to a third party, such as a banker processing a refinancing application. Drawdy testified that the tax returns and accounting records accessible through the client portals belonged to both him and the client, and while he did not own the tax returns, he did own the portal. Drawdy testified that he would not provide former clients with copies of their tax returns unless they paid him $200 to access their client portal and retrieve their own tax documents, because he had no obligation to provide copies to his former clients, who could obtain their own copy from the Internal Revenue Service for $57.

An injunction is proper to prevent a party “from being damaged and left without a remedy.” Atlanta Area Broadcasting, 263 Ga. App. at 393. Drawdy testified that he had already shut down the portal system for former clients. Therefore, the trial court did not err in denying Drawdy’s motion to enjoin Pritchett from using his client portals.

2. Drawdy contends the trial court erred in denying him a temporary injunction because “the processes by which [he] delivered clients services was [Drawdy’s] confidential and proprietary information” protected by the Georgia Trade Secrets Act, OCGA § 16-8-13 (a) (4) (A). A computer program or data may be “trade secrets.” Stargate Software Intl. v. Rumph, 224 Ga. App. 873, 876 (2) (482 SE2d 498) (1997). But Drawdy has not alleged that Pritchett misappropriated the client portal software itself. Further, while Drawdy testified that a client’s financial statements and accounting documents were available through the client portal, Pritchett testified that she only used the portal to gain access to the tax returns of Drawdy’s former clients. And as Drawdy admitted, the tax returns belong to the clients, not to him. The trial court did not abuse its discretion in denying a temporary injunction on this basis.

3. Drawdy alleges that Pritchett “committed the crime of computer theft when she entered Appellant Drawdy CPA’s computer systems, through its client portal, without authority of Appellant Drawdy CPA and converted its property to her use[.]” At the hearing on Drawdy’s motion for a temporary injunction, the trial court responded to that argument by advising Drawdy’s counsel that he was doing his client a disservice by arguing criminal computer trespass, because the court did not see that as even a possibility.

Under OCGA § 16-9-93 (a) (3), a person commits the crime of computer theft when she knowingly uses a computer network without authority and with the intention of converting property to her use in violation of an agreement. Drawdy argues that Pritchett entered Drawdy CPA’s computer systems through its client portal and converted its property to her own use. Pritchett testified that she never accessed the clients’ files on Drawdy’s network, and that she obtained the passwords to the client portals from the clients, not through knowledge gained from her employment with Drawdy. Further, as Drawdy testified that he had shut down his former clients’ portals, the trial court did not abuse its discretion in denying Drawdy a temporary injunction based on a crime of computer theft. See Atlanta Area Broadcasting, 263 Ga. App. at 393.

4. Finally, Drawdy asserts that the trial court erred in denying his motion for a temporary injunction because Pritchett directly solicited his clients in violation of her employment agreement. The record contains no evidence to support this allegation. Drawdy submitted the affidavit of one client who received a direct mail advertisement from Pritchett. Pritchett and one of her clients testified that the advertisement was sent to a mailing list of 2,500 potential new clients who met certain demographic criteria. While Pritchett scanned the list and removed five or six people she recognized to be Drawdy’s clients, she missed one that was sent to a client of Drawdy’s. This evidence does not establish that the trial court abused its discretion in determining that an injunction was not a vital necessity to prevent irreparable damage to Drawdy while the case is pending.

Decided March 25, 2013.

Rebecca W. McLaws, for appellants.

Michael J. Kramer, for appellees.

Judgment affirmed.

Miller and Ray, JJ., concur.


author: Branch, Judge.

text:
    A12A1700.
    SOUTHWELL v. THE STATE.
    (740 SE2d 725)
   Branch, Judge.

On this pro se appeal from the denial of his motion to modify the sentence imposed after he pled guilty to robbery by intimidation and felony theft by taking, Joseph Southwell argues that his prosecution for the two crimes violated the Double Jeopardy Clauses of the United States and Georgia Constitutions and that the two crimes should have been merged for sentencing purposes. Southwell also argues that trial counsel was ineffective in failing to raise this objection below. We find no error and affirm.

1. Southwell has raised what is known as a “substantive double jeopardy” attack on his conviction.

“Georgia’s statutory bar to successive prosecutions and multiple convictions for the same conduct, OCGA § 16-1-7, is more expansive than the constitutional proscription of double jeopardy.” (Citation omitted.) Curtis v. State, 275 Ga. 576, 577 (1) (571 SE2d 376) (2002). We therefore limit our inquiry to whether Southwell’s sentence is invalid under this more expansive test.

OCGA § 16-1-7 (a) sets forth the substantive bar of double jeopardy by providing that an accused may be prosecuted for each crime that arises from the accused’s conduct, but an accused may not be convicted of more than one crime, if one crime is included in the other. Thus, Georgia law bars conviction and punishment of all crimes which arise from the same criminal conduct and are as a matter of law or a matter of fact included in the major crime for which the defendant has been convicted.

(Citations omitted; emphasis in original.) Id.

In determining whether one crime is included in the other, Georgia’s courts apply the “required evidence” test adopted in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006): “ ‘[W]here the same act or transaction constitutes a violation of two distinct statutory provisions,’ ” the proper inquiry under the required evidence test is “ ‘whether each provision requires proof of a fact which the other does not.’ ” Id. at 215, quoting Blockburger v. United States, 284 U. S. 299, 304 (52 SC 180, 76 LE 306) (1932). Thus “a single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” (Punctuation and footnote omitted.) Drinkard, supra at 215.

The warrant for Southwell’s arrest recounted that he had threatened the victim, a store employee, with a knife and that he had taken money from the store’s cash register as well as the victim’s car keys. The indictment charged that Southwell (1) obtained money from the “immediate presence” of the victim by threatening to stab her in the neck, thus committing robbery by intimidation; and (2) stole her car, thus committing felony theft by taking. Southwell pled guilty to both crimes, and “[a] plea of guilty admits the facts set forth in an accusation or indictment.” (Punctuation and footnote omitted.) Neslein v. State, 288 Ga. App. 234, 236 (1) (653 SE2d 825) (2007).

Under OCGA § 16-8-41 (a), “[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” Because it is accomplished by creating an apprehension of danger on the part of the victim, the crime of robbery by intimidation is a lesser included offense of armed robbery. Id.; Johnson v. State, 195 Ga. App. 56, 58 (1) (392 SE2d 280) (1990); Lancaster v. State, 281 Ga. App. 752, 753 (1) (637 SE2d 131) (2006) (evidence that defendant robbed victim by use of a firearm, which would authorize a conviction for armed robbery, also authorized a conviction for robbery by intimidation). By contrast, under OCGA § 16-8-2, “[a] person commits the offense of theft by taking when he unlawfully takes or ... unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” (Emphasis supplied.)

Under the facts established only by Southwell’s guilty plea to the indictments against him, he obtained the money by intimidation, whereas he obtained a different object, the car, without the use of intimidation. Because he committed two separate crimes, each of which required proof of a fact which the other did not, the trial court did not err when it denied Southwell’s motion to modify his sentence. See Elamin v. State, 293 Ga. App. 591, 593 (1) (667 SE2d 439) (2008) (where offenses of aggravated assault and robbery by intimidation required different evidence, the former did not merge into the latter).

Decided March 26, 2013.

Joseph Southwell, pro se.

L. Craig Fraser, District Attorney, Bradford N. Childers, Assistant District Attorney, for appellee.

2. It follows from our holding in Division 1 that Southwell’s counsel could not have been ineffective for failing to raise his merit-less substantive double jeopardy claim. Sims v. State, 281 Ga. 541, 542-543 (2) (640 SE2d 260) (2007).

Judgment affirmed.

Miller, P. J., and Ray, J., concur.


author: Andrews, Presiding Judge.

text:
    A12A1771.
    FREUND et al. v. WARREN.
    (740 SE2d 727)
   Andrews, Presiding Judge.

Chris Freund and Freund, Ltd. (collectively “Freund”) appeal the grant of summary judgment to All Cobb Bail Bonds, Inc. (“ACBB”). This action arises from an Interpleader filed by the Sheriff of Cobb County to determine who should receive two certificates of deposit (“CDs”) held by the Sheriff as collateral. Freund contends the trial court erred by denying its motion for summary judgment asserting his entitlement to the CDs, erred by granting ACBB’s motion and awarding ACBB the CDs, and erred by granting attorney fees to ACBB. As we find that the trial court misinterpreted the relationships of the parties as defined in the controlling documents, we must reverse the trial court.

1. The record shows that Freund, Ltd. operated a bail bonding business under the trade name of All Cobb Bail Bonds. All Cobb Bail Bonds was not a corporation; it was merely a trade name under which Freund, Ltd. operated its bail bond business.

In April 2007, Freund, David Eugene Smith, and Robert Scott Hall entered into a Purchase and Sales Agreement (“the Agreement”). According to the Agreement, Hall and Smith in their individual capacities would purchase and Chris Freund would sell certain assets of All Cobb Bail Bonds as defined in the Agreement. The assets included “[a] 11 interest in remaining Certificates of Deposit being held in Trust by the Cobb County Sheriff.” The agreement identified Hall and Smith “collectively and individually” as the Purchaser, and Hall and Smith both signed the Agreement in their individual capacities without any corporate designation on May 1, 2007. Chris Freund, however, signed as the president of “Freund Limited DBA All Cobb Bail Bonds,” identified as the Seller. In the Agreement Hall and Smith, as the Purchaser, represented and warranted that

[t] his Agreement has been duly executed by the Purchaser and constitutes a legal and binding obligation of the Purchaser, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy and insolvency, by other laws affecting the rights of creditors generally, and by equitable remedies granted by a court of competent jurisdiction.

The record contains a note between Sheriff’s office personnel stating:

Attached are documents to be signed that are related to the sale of All Cobb Bail Bonds. The CD’s do not need to be amended. Changes do not need to be made to the escrow account. Enclosed are the new agreements and the power of attorney for R. Scott Hall to allow David Smith to be held as contact person. Sheriff Warren’s signature is needed.

Although the note is not dated, the note is initialed by the recipient on July 23, 2007.

All Cobb Bail Bonds is defined in the agreement (“the Deposit Agreement”) between All Cobb Bail Bonds and the Sheriff of Cobb County as a “professional bonding business.” The Deposit Agreement with the Sheriff allowed All Cobb Bail Bonds to operate a professional bonding business. The Deposit Agreement required All Cobb Bail Bonds to establish a “cash reserve or deposit account to be utilized to underwrite said appearance bonds” by depositing $150,000 with the Sheriff. The Deposit Agreement provided the working arrangement between the Sheriff and All Cobb Bail Bonds. One of the provisions in the Deposit Agreement covered the actions to be taken upon termination of the Deposit Agreement. In such event, “the principal amount of said savings account shall be withdrawn from said account by check or other withdrawal instrument required by said Bank, signed by the Sheriff. . . and the proceeds shall be paid over to the professional bonding business. . . .”

The Deposit Agreement required the professional bonding business to “provide [ ] to the Sheriff the names and percentage of interest of all partners, officers, stockholders, and any other person or corporation having an interest in the ownership and/or direction of the business of the professional bonding business.” The Deposit Agreement also required the professional bonding business to notify the Sheriff of any changes in the ownership or direction of the business.

The Deposit Agreement is signed by the Sheriff of Cobb County and by Robert Scott Hall and David E. Smith. Following Hall and Smith’s signatures are their typed names and the notation “Individually” and on the next lines “All Cobb Bail Bonds.” The Deposit Agreement is dated July 17, 2007.

The record also contains a fax cover sheet from R. Scott Hall to the Sheriff’s Bond Administrations Office forwarding the Articles of Incorporation for “All Cobb Bail Bonds, Inc.” The cover sheet informed the Sheriff’s office that the “stockholders of All Cobb Bail Bonds [,] Inc[.,] are R. Scott Hall and David E[.] Smith with each owning 500 shares of stock.”

In his deposition, Hall asserted that the CDs were the property of ACBB. He testified:

From the day we started the transaction, we operated under All Cobb Bail Bonds, Incorporated, from day one and with that intention. We never done business as individuals; we always done business as a corporation. When the transaction was completed, it was done as All Cobb Bail Bonds, Incorporated. And the County was actually informed of that fact, and we were advised by the County to do business as All Cobb Bail Bonds, Incorporated. The CDs were also supposed to be listed in the name of All Cobb Bail Bonds, Incorporated. If they didn’t, that’s the County [’s] mistake, not our mistake. But from day one, everything we did from the beginning was supposed to be done in All Cobb Bail Bonds, Incorporated, assets and all.

Hall admitted, however, that he and Smith had not signed anything that transferred ownership from them personally to the corporation, that they were not paid by the corporation for the assets, and that no documentation showed any “kind of change of ownership.”

In Georgia,

[t]he standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When a trial court rules on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. On appeal of the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

(Citation and punctuation omitted.) Overton Apparel v. Russell Corp., 264 Ga. App. 306,307 (1) (590 SE2d 260) (2003). Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. See Chester v. Smith, 285 Ga. 401, 401 (677 SE2d 128) (2009); Merlino v. City of Atlanta, 283 Ga. 186, 186 (657 SE2d 859) (2008). Further, contract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court. Burns v. Reves, 217 Ga. App. 316, 318 (1) (457 SE2d 178) (1995).

Although several facts are disputed in this appeal, these disputes do not concern facts material to the disposition of the case. Our primary consideration is the contents of the writings which are not in dispute.

The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction. Further, the construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part. Moreover, no construction is required or even permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation. It is well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless. Further, Georgia law imposes on both parties an implied duty of good faith in carrying out the mutual promises of the contract.

(Citation and punctuation omitted.) Homelife Communities Group v. Rosebud Park, LLC, 280 Ga. App. 120, 122 (633 SE2d 423) (2006). “It is the function of the court to construe the contract as written and not to make a new contract for the parties.” (Punctuation omitted.) Ga. Magnetic Imaging v. Greene County Hosp. Auth., 219 Ga. App. 502, 504 (1) (466 SE2d 41) (1995).

Considering the Agreement, the plain language of the first page of the Agreement shows that the “Purchaser” was Hall and Smith “collectively and individually” and Hall and Smith’s signatures, which contain no words of limitation, are in their individual capacities. Therefore, the assets, including the CDs, were sold to Hall and Smith individually, and the CDs became their personal property.

Further, contrary to Hall’s deposition testimony, the signatures on the Deposit Agreement show the word “individually” and the next line shows “All Cobb Bail Bonds,” without any corporate designation. Therefore, the Deposit Agreement establishes that Hall and Smith were granted authority to operate the bonding company, All Cobb Bail Bonds, in their individual capacities and, more importantly, the CDs being held in trust by the Sheriff were the property of Hall and Smith. In his deposition Hall conceded that no action was taken to transfer ownership of the CDs to ACBB. Additionally, the Deposit Agreement consistently refers to All Cobb Bail Bonds and not to All Cobb Bail Bonds, Inc.

Hall has submitted an affidavit which contradicts his deposition testimony in numerous respects without explanation. On motion for summary judgment a party’s self-conflicting testimony is to be construed against him unless a reasonable explanation for the contradiction is offered. Gentile v. Miller, Stevenson & Steinichen, Inc., 257 Ga. 583 (361 SE2d 383) (1987); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). Additionally, Hall’s affidavit contains significant hearsay about what the Sheriff’s Bonding Office told him. In summary judgment proceedings, however, the rules on admissibility of evidence apply, and hearsay has no probative value unless it is part of the res gestae. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (397 SE2d 576) (1990). Therefore, we cannot consider what the Sheriff’s office personnel may have told him about processing his application.

Under the terms of the Deposit Agreement, once the bonding business was terminated, the Sheriff was to transfer the CDs to “the professional bonding business.” According to the terms of the Deposit Agreement, the professional bonding business in this case would be All Cobb Bail Bonds which was owned by Hall and Smith in their individual capacities. Even though it appears that the Sheriff’s office transferred some funds to ACBB, these transfers were mere administrative actions without the full knowledge of the ownership of the funds held in trust by the Sheriff. Moreover, no Deposit Agreement authorizing ACBB to operate a professional bonding business is of record in this case. Consequently, these actions by the Sheriff’s administrative staff did not transfer legal title to the funds represented by the CDs and held in trust for Hall and Smith doing business as All Cobb Bail Bonds, in accordance with the Deposit Agreement.

Even though ACBB existed as a corporation with Hall and Smith as stockholders when Hall and Smith were purchasing the assets of All Cobb Bail Bonds and signing the Deposit Agreement, that is of no significance because the documents plainly show that Hall and Smith signed the Agreement and the Deposit Agreement in their individual capacities. The law of corporations is founded on the legal principle that each corporation is a separate entity, distinct and apart from its stockholders. Exchange Bank of Macon v. Macon Constr. Co., 97 Ga. 1, 7 (25 SE 326) (1895). Thus, Hall and Smith individually are separate and distinct legal entities from ACBB.

The record further shows that when Hall and Smith failed to make the payments required by the Agreement, Freund sued them and obtained a judgment for $234,915.90, and that Freund properly recorded a writ of fieri facias in that amount. Thus, as Freund is a judgment creditor of Hall and Smith, he is entitled to recover the proceeds that were paid in the registry of the court to which Hall and Smith would otherwise be entitled as the owners of the CDs.

Therefore, the trial court erred by denying Freund’s motion for summary judgment, and the judgment of the trial court must be reversed and the case remanded to the trial court with direction to vacate its earlier denial of Freund’s motion and to grant summary judgment to Freund. Of course, Freund’s entitlement to the funds is subject to any outstanding liens.

Decided March 26, 2013.

Bailey, Davis, Brown & Sutton, C. Lee Davis, EmmaL. A. Burke, for appellants.

Alexander F. Hudgins III, for appellee.

2. In view of our disposition of this case in Division 1, the trial court’s grant of summary judgment and award of attorney fees to ACBB are also reversed.

Judgment reversed and case remanded with direction.

Doyle, P. J., and Boggs, J., concur.

       OCGA § 23-3-90 (a): “Whenever a person is possessed of property or funds or owes a debt or duty, to which more than one person lays claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead.”

       Other documents in the record signed by Hall and Smith show that they know how to sign in their corporate capacities if that is their intent.

       Throughout the agreement, All Cobb Bail Bonds is so named without any corporate designation.

       Our law only permits such parol evidence to determine the intent of the parties when the agreement is ambiguous. Lifestyle Home Rentals v. Rahman, 290 Ga. App. 585, 587 (1) (660 SE2d 409) (2008). See UniFund Financial Corp. v. Donaghue, 288 Ga. App. 81,82-83 (653 SE2d 513) (2007) (“Parol evidence is not admissible to contradict or construe an unambiguous contract.”) (citation and punctuation omitted). Neither the Agreement nor the Deposit Agreement is ambiguous. A word or phrase is ambiguous when its meaning is uncertain and it may he fairly understood in more ways than one. Kusuma v. Metametrix, Inc., 191 Ga. App. 255,256 (381 SE2d 322) (1989).