author: MILLER, Presiding Judge.

text:
    A15A2301, A15A2302.
    STOCK BUILDING SUPPLY, INC. v. PLATTE RIVER INSURANCE COMPANY; and vice versa.
    (783 SE2d 708)
   MILLER, Presiding Judge.

These cases arise from a contract to build a shopping center (“the Project”). Madison Retail-Suwanee, LLC (“Madison”) the Project’s owner, hired Cannon/Estapa General Contractors, Inc. (“Cannon”) as the general contractor. Stock Building Supply (“Stock”) subcontracted with Cannon to supply labor, materials, and services for the Project. Cannon did not complete the Project, and at the time Cannon ceased working, Madison had paid Cannon less than the full contract price. Cannon also failed to pay Stock the full amount it owed Stock under the subcontract. Consequently, in 2007 Stock filed a timely lien against the Project and perfected it by obtaining a judgment against Cannon for the amount due under its subcontract with Stock. Platte River Insurance Company (“Platte”), the surety for the Project, issued a bond to discharge the lien. Stock then filed an action against Platte to collect the judgment in the amount of $93,865.27.

Platte answered the complaint, raising numerous affirmative defenses, including that Stock was estopped from enforcing the lien and that Platte was not liable under the lien based on a full payment defense. Platte also asserted a counterclaim for damages against Stock. Both parties moved for summary judgment. The trial court (a) denied Platte’s motion for summary judgment on judicial estoppel grounds, and (b) found there were genuine issues of material fact regarding the lien amount and Platte’s full payment defense. This Court granted interlocutory review, and this appeal and cross-appeal followed. In Case No. A15A2301, Stock argues that it was entitled to recover all of its costs under the lien, including overhead, profit, and insurance costs. Stock also argues that Platte failed to establish its full payment defense. In its cross-appeal, Case No. A15A2302, Platte argues that Stock is judicially estopped from enforcing the lien because it failed to include the lien as an asset during its bankruptcy proceeding. For the reasons set forth below, we affirm the trial court’s orders in both appeals.

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 or] denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Carter v. Scott, 320 Ga. App. 404, 405 (750 SE2d 679) (2013).

Case No. A15A2302

1. Platte argues that Stock is judicially estopped from bringing suit to enforce the lien because it failed to include its right to recover under the lien as an asset in its 2009 bankruptcy reorganization, and it subsequently chose not to reopen its bankruptcy petition to include the lien. We disagree.

The issue before us is whether a debtor seeking reorganization in a prepackaged bankruptcy petition is estopped from pursuing legal claims not listed as an asset in that petition.

Since 1994 we have followed the federal doctrine of judicial estoppel, which precludes a party from asserting in a judicial proceeding a position inconsistent with a position successfully asserted by it in a prior proceeding. . . . [T]he essential function and justification of judicial estoppel is to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary. The doctrine is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings and is designed to prevent parties from making a mockery of justice through inconsistent pleadings. Thus, this equitable doctrine is invoked by a court at its discretion, and intended to prevent abuse of the judicial process. The circumstances under which it is appropriate are not reduced to any general formula or rule.

(Citations and punctuation omitted.) CSX Transp., Inc. v. Howell, 296 Ga. App. 583, 585 (675 SE2d 306) (2009).

Moreover, courts have

commonly applied [the doctrine] to preclude a bankruptcy debtor from pursuing a damages claim that he failed to include in his assets in the bankruptcy petition because a failure to reveal assets, including unliquidated tort claims, operates as a denial that such assets exist, deprives the bankruptcy court of the full information it needs to evaluate and rule upon a bankruptcy petition, and deprives creditors of resources that may satisfy unpaid obligations.

(Citations and punctuation omitted.) CSX Transp., supra, 296 Ga. App. at 585.

In Period Homes v. Wallick, 275 Ga. 486, 487-88 (569 SE2d 502) (2002), the Supreme Court of Georgia found that judicial estoppel was not warranted where the bankruptcy petitioner was not required to provide a schedule of assets as part of the bankruptcy proceeding, and the petitioner had no statutory duty to amend the schedule of assets. In that case, the debtor received permission to sell land while in bankruptcy proceedings, and he informed the bankruptcy trustee of a potential breach-of-contract claim related to the sale. Id. The debtor did not, however, amend the schedule of assets. When the debtor later tried to bring his breach-of-contract claim, the defendant in that case argued that the debtor was estopped from bringing his claim because it was not included in the schedule of assets. Id. The Supreme Court of Georgia concluded that judicial estoppel was not warranted under the facts of the case because the debtor did not mislead the Bankruptcy Court and did not take inconsistent positions with respect to his claims. Id.

In this case, Stock filed a prepackaged Chapter 11 bankruptcy petition, which did not include or require a schedule of assets. Rather, the Bankruptcy Court specifically granted Stock additional time to file schedules within 7 5 days of the petition date, and further explained that if the court confirmed the plan before the expiration of that period, no schedules were required.

Moreover, Stock’s bankruptcy petition included a specific provision to preserve any causes of action. This provision allowed Stock or any of its successors to pursue any claims, and it stated that the failure to include any such claims in a schedule of assets did not constitute a waiver or have any other preclusive effect. More importantly, in its order accepting and confirming the prepackaged bankruptcy petition, the Bankruptcy Court explicitly provided that Stock retained the right to pursue any legal claims, and that the bankruptcy petition would not have any preclusive or estoppel effect.

Applying the reasoning from Period Homes, we conclude that under the specific facts of this case, judicial estoppel does not preclude Stock from enforcing its lien. See Period Homes, supra, 275 Ga. at 488 (2). Stock has not concealed anything or taken a position here that is inconsistent with the position taken in the bankruptcy proceedings. Rather, we note that in its bankruptcy proceedings, Stock indicated that there would be funds available for distribution to creditors, and therefore the failure to identify the lien as a potential asset did not affect the amount the creditors received. See id. (noting that the petitioner did not accrue any benefit from the omission of a claim). Thus, applying judicial estoppel to these facts would not further the purpose of the doctrine, namely, to protect the integrity of the judicial process. Id.

Platte’s reliance on In re USInternetworking, Inc. v. Gen. Growth Mgmt., Inc., 310 BR 274 (Bankr. D. Md. 2004), is unavailing. That case did not involve a prepackaged bankruptcy petition, and the Bankruptcy Court did not excuse the petitioner from filing a schedule of assets. 310 BR at 277, 281-85. Furthermore, our prior decision in Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455-56 (442 SE2d 265) (1994), does not dictate a different result. In that case, we focused on the debtor’s obligation to file a list of assets as the basis for applying judicial estoppel. Southmark Corp., supra, 212 Ga. App. at 455-56. As noted here, however, Stock was not required to file a schedule of assets. Accordingly, we find that the trial court properly rejected Platte’s judicial estoppel argument.

Case No. A1SA2301

2. Stock contends that the trial court erred by denying its motion for summary judgment because (a) it was permitted to seek money to cover profit and overhead as part of its lien, and (b) Platte failed to establish its full payment defense.

(a) Whether Stock could recover the full contract price.

Stock first argues that it was permissible to include profit and overhead as costs recoverable under its lien pursuant to OCGA § 44-14-361. Stock contends that the trial court erred in relying on 182 Tenth, LLC v. Manhattan Constr. Co., 316 Ga. App. 776 (730 SE2d 495) (2012), to conclude otherwise because the intent of the statute has always been to permit materialmen to recover on the full price of the contract and the statute does not make a distinction between lienable and non-lienable items. Stock contends that the amendment to OCGA § 44-14-361 following this Court’s decision in 182 Tenth merely clarified that materialmen may recover the full contract price.

The Georgia General Assembly has enacted a detailed statutory scheme for creating special liens on real property, including liens of materialmen who furnish materials for the building, repairing, or improving of the property. A materialman’s lien effectively permits the transfer of liability from the person who actually contracted with the materialman for materials to be used in improving real estate to the owner of the improved property, even though that property owner usually will have no relationship with the materialman, contractual or otherwise. . . . The right to a materialman’s lien is based upon the theory that the work and material... for which the lien is sought have increased the value of the realty by becoming a part thereof.

(Citations and punctuation omitted.) Hill v. VNS Corp., 329 Ga. App. 274, 275-76 (764 SE2d 876) (2014); see also OCGA § 44-14-361.1 (a) (4) (permitting a lienholder to enforce the lien directly against the property owner where the contractor has been adjudicated bankrupt). “[Bjecause materialman’s liens are in derogation of the common law, statutes involving such liens must be strictly construed in favor of the property owner and against the materialman.” (Citations and punctuation omitted.) Hill, supra, 329 Ga. App. at 276.

(i) Whether OCGA § 44-14-361 enables materialmen to recover all costs under the contract or only lienable items.

Under the language of OCGA § 44-14-361 (a) (2) in effect when Stock filed its lien, all subcontractors and materialmen may obtain a lien on the property for which they “furnish labor, services, or materials.” This Court interpreted this statute to limit a material-man’s ability to recover costs only for the materials and work which actually went into the structure. OCGA § 44-14-361 (2006); Hill, supra, 329 Ga. App. at 275-76. Thus, in 182 Tenth, this Court held that only lienable items may be claimed, and the lienholder has the burden of proving what items are lienable. See 182 Tenth, supra, 316 Ga. App. at 779 (2). Non-lienable items include costs of clean-up, insurance, and other “overhead costs to manage the job site.” Id. at 780-81 (3).

In 2013, the Georgia Legislature amended OCGA § 44-14-361, adding the following provision: “Each special lien... shall include the amount due and owing the lien claimant under the terms of its express or implied contract, subcontract, or purchase order subject to subsection (e) of Code Section 44-14-361.1.” OCGA § 44-14-361 (c) (2013).

Stock contends that the trial court erred by relying on 182 Tenth because the legislature’s 2013 amendments to OCGA § 44-14-361 nullified that decision, clarified that materialmen could recover the full contract price, and applied retroactively. The trial court found that the amendments to OCGA § 44-14-364 were substantive in nature and thus could not apply retroactively. We agree.

“[T]he retroactive application of statutes has long been disfavored in the law, even if it is not always forbidden.” Deal v. Coleman, 294 Ga. 170, 174 (1) (b) (751 SE2d 337) (2013). Unless the legislature has clearly indicated its intent that a statute apply retroactively, we generally construe a statute as applying prospectively only. Polito v. Holland, 258 Ga. 54, 55 (2) (365 SE2d 273) (1988). Legislation that involves “mere procedural or evidentiary changes” may apply retroactively, but legislation that “affects substantive rights” will only apply prospectively. Enger v. Erwin, 245 Ga. 753, 754 (267 SE2d 25) (1980). Substantive law creates rights, duties, and obligations, whereas procedural law simply dictates the enforcement of existing rights, duties, and obligations. Polito, supra, 258 Ga. at 55 (3).

Here, the amendment affects the parties’ substantive rights by enabling them to bring an action based on the contracted price of the work, which includes overhead costs and profit, rather than just on the value of the materials and labor that directly improved the property. See, e.g., Polito, supra, 258 Ga. at 57 (4) (discussing a substantive change as one that would reduce damages, such as the collateral source rule of recovery). Given that the change under OCGA § 44-14-364 enables the lienholder to recover additional costs from the property owner, and we strictly construe liens in favor of the property owners, we cannot view this as a procedural change. See Hill, supra, 329 Ga. App. at 276. We note that in a decision issued after the amendment, this Court upheld the limitation that only lienable items were recoverable. See id. (discussing a lien obtained before the amendment and explaining that the “lien statutes allow a materialman to secure a lien only for the materials and work which actually went into the structure”).

Moreover, nothing in the statute clearly indicates its intent to apply retroactively. Deal, supra, 294 Ga. at 175 (1) (b) (finding clear intent where the statutory language stated that the amendment “ ‘shall apply to any request. . . made prior to the date of this Act’ ”). Rather, the amendment simply states that it is intended “to provide that special liens include the amount due pursuant to an express or implied contract and interest on such amount; to provide for related matters; to repeal conflicting laws; and for other purposes.” Ga. L. 2013, p. 1102. We will presume that the legislature says what it means and means what it says, Deal, supra, 294 Ga. at 172 (1) (a), and the legislature did not say that the statute applies retroactively.

Stock relies on Daniel Hinkel’s treatise Georgia Construction Mechanics’ & Materialmen’s Liens § 7:3 (4th ed.), in support of its argument that the statute applies retroactively, but we are not persuaded. In his treatise, Hinkel opines that the amendments were designed to return the law to the correct interpretation prior to this Court’s erroneous decision in 182 Tenth. The legislature, however, failed to clearly set forth its intent that the amendment apply retroactively, and thus we will not apply it in that manner. Accordingly, we agree with the trial court’s conclusion that the amendments to OCGA § 44-14-361 do not apply retroactively, and we find that the trial court properly applied the version of OCGA § 44-14-361 in effect at the time Stock obtained the lien in 2007.

(ii) Whether Stock established its lienable items.

The trial court found that there was a genuine issue of material fact regarding whether Stock had sought to recover only lienable items.

Stock submitted numerous invoices to show the amount it expended on the Madison Project. Stock did not, however, divide those into lienable and non-lienable items. In fact, the only evidence Stock presented to show that only lienable items were listed was the testimony of its agent, Harmon White Caldwell III. Yet Caldwell also testified that Stock did not bill Cannon separately for overhead and insurance. Thus, we agree with the trial court’s conclusion that an issue of fact remains regarding whether Stock can show that the total amount it claimed under its lien covers only the lienable items.

(b) Platte’s full payment defense.

Stock next argues that it was entitled to summary judgment on Platte’s full payment defense because Platte failed to show that the money Madison paid under the contract was applied to pay Stock. Stock concedes, for purposes of this appeal, that Cannon abandoned the Project. Platte responds that, because Cannon abandoned the Proj ect, Platte was not subj ect to the lien if the cost for completing the Project exceeded the original contract price, as it did in this case.

Where a contractor abandons his contract, the cost of completing the work is to be deducted from the contract price in order to ascertain the amount up to which the subcontractors may claim liens; and if such deductions, together with payments previously made to the contractor, equal or exceed the entire contract price, then of course the subcontractors and materialmen have no lien, since there is nothing due under the contract... . [T]he owner is required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor’s statutory affidavit concerning such indebtedness had been obtained.

(Citations and punctuation omitted.) Jones Mercantile Co. v. Lyn-Har, Inc., 245 Ga. 812, 812 (267 SE2d 251) (1980). Moreover, under OCGA § 44-14-361.1 (e), “[i]n no event shall the aggregate amount of liens set up by Code Section 44-14-361 exceed the contract price of the improvements made or services performed.”

The trial court found that there was a genuine issue of material fact with respect to whether Cannon abandoned the project. For purposes of the appeal, however, Stock has conceded abandonment. Thus, to succeed on the full payment defense, Platte must show that the payments made were properly applied to Stock’s materialmen and laborers. Mayer Elec. Supply Co. v. Federal Ins. Co., 195 Ga. App. 191, 192 (393 SE2d 270) (1990).

In an affidavit, certified public accountant Gary Fortier stated that he reviewed the jobs cost evaluation and tracked the payments made by Madison. In his affidavit, Madison representative Stephen Wisenant detailed the payments Madison made under the contract, as well as Madison’s costs to complete the Project after Cannon abandoned it. Thus, Platte presented some evidence to show that the total costs of completing the project — including the amounts it paid to Cannon and the amounts it paid to complete the Project — exceeded the contract price. Platte has not shown, however, that the payments Madison made to Cannon were properly appropriated to Stock.

Decided March 9, 2016.

Busch, Reed & Jones, Chad K. Reed, Jeffrey S. Leeper, Cory C. Close, for appellant.

Stone & Bellus, F. R. Josh Stone, John E. Bellus, Jr., for appellee.

Platte points to copies of invoices and cancelled checks to show the payments were made. Although Platte can show payments made to Cannon, it has not shown, at least at this stage of the proceedings, that those payments were appropriated to Stock’s labor, materials, and services. Accordingly, the trial court properly found that a genuine issue of material fact remained with regard to Platte’s full payment defense.

In sum, in Case No. A15A2302, we affirm the trial court’s denial of Platte’s motion for summary judgment on judicial estoppel grounds. In Case No. A15A2301, we also affirm the trial court’s denial of summary judgment to Stock with respect to the interpretation of OCGA § 44-14-361 covering lienable items and Platte’s full payment defense.

Judgment affirmed.

Andrews, P. J., concurs. Branch, J., concurs fully as to Division 2 and in judgment only as to Division 1.

       The “full payment” defense enables a property owner to avoid judgment against him if he can show that he made payments under the contract and those payments were properly appropriated to the materialmen and laborers. Mayer Elec. Supply Co., Inc. v. Federal Ins. Co., 195 Ga. App. 191, 192 (393 SE2d 270) (1990).

       A prepackaged bankruptcy case involves a reorganization plan that is negotiated before the filing of the case. A disclosure statement and proposed plan is generally filed with the petition, thereby shortening the bankruptcy process and greatly reducing the expenses inherent in a “normal” Chapter 11 bankruptcy case. (Punctuation omitted.) In re Citation Corp., 371 HR. 518, 521 n.4 (Bankr. N.D. Ala. 2007).

       In CSX Transp., Inc. v. Howell, 296 Ga. App. 583, 588(2) (675 SE2d 306) (2009), this Court noted in dicta that it had declined to apply judicial estoppel to cases in which the petitioner moved to reopen the bankruptcy petition to disclose the asset.

       The Bankruptcy Court found that such retained action provisions are permissible under 11 USC § 1123 (b) (3).

       Platte argues that Stock wrote off millions of dollars in debt, but it cites to no evidence in the record to support its claim. Importantly, creditors could have been willing to accept less money to resolve their claims during bankruptcy, enabling Stock to write off debt, if creditors were not fully informed of Stock’s assets. Cf. In re Grelier, 400 BR. 826, 828-31 (Bankr. N.D. Ala. 2009) (finding that judicial estoppel applied despite a reservation of rights clause in a bankruptcy petition because the petition was insufficient to inform creditors of potential assets, and that without full information the creditors agreed to a lesser amount of funds).

       OCGA § 44-14-361.1 (e) limits the aggregate amount of liens recoverable under OCGA § 44-14-361 to the contract price.


source: Caselaw Access Project

author: Doyle, Chief Judge. BOGGS, Judge,

license: Public Domain

text:
    A15A1952.
    PAGE v. THE STATE.
    (783 SE2d 715)
   Doyle, Chief Judge.

Trev Baxter Page appeals from the trial court’s order revoking his probation. Page argues that because the conduct underlying the revocation occurred after the oral pronouncement of his sentence but prior to the written sentence being filed in the case and because he was not yet on probation when the revocation occurred, (1) his right to due process was violated when his probation was revoked, and (2) he received ineffective assistance of counsel when counsel failed to argue these positions at the revocation hearing. For the reasons that follow, we affirm.

The evidence shows that on August 26, 2014, Page entered a guilty plea to burglary under the First Offender Act, OCGA § 42-8-60. Prior to entry of his plea, Page had been released on bond. On August 26, 2014, the trial court orally pronounced his sentence of 10 years with the first 12 months to serve in confinement and the remainder on probation. The trial court explained to Page that pursuant to the First Offender Act, if he reoffended, he could be adjudicated guilty and resentenced to up to 20 years confinement. The trial court allowed Page to return home immediately after the oral pronouncement in order to seek medical treatment for an injury, but the court ordered him to report to Whitfield County Jail three days later on August 29, 2014, at 8:00 a.m. to begin his sentence of confinement, explaining that failure to appear at that time would constitute a violation of probation, and his first offender status could be revoked.

Although the trial court signed the written judgment of conviction on August 26, the order was not entered onto the docket until September 2, 2014; the order contained the sentence as pronounced on August 26, including the special condition of probation requiring that Page report to the jail at 8:00 a.m. on August 29.

On August 29, 2014, when Page failed to appear at the jail to begin his term of confinement, the trial court issued an order for his arrest, which police served later that day. When they arrived at his residence, officers encountered a person they would later learn was Page walking out from behind an apartment building holding what appeared to be a pipe normally used for smoking methamphetamine. Officers asked if the item they saw in Page’s hand was a methamphetamine pipe, and he stated that it was not, that he was not smoking methamphetamine, and that he was playing basketball with his kids. Officers asked Page his identity, and after he admitted it, they explained that they were there to arrest him, and Page responded that he would not leave and ran toward the officers, striking one. Page’s two children, ages nine and six, witnessed the scene, and the older child was struck in the leg with an officer’s microphone, which Page had thrown. The two children asked the police to leave Page alone and were very upset during the altercation. Eventually, one of the officers deployed his taser, which was not effective, but other officers arrived and were able to subdue Page. After Page was arrested, officers discovered on his person a substance that field tested positive for methamphetamine and a spring-loaded knife.

On November 24, 2014, based on the encounter with police on August 29, the State filed a Petition for Adjudication of Guilt and Imposition of Sentence in First Offender Case against Page for violation of his probation in the burglary case by committing two counts of felony obstruction of a law enforcement officer, possession of methamphetamine, possession of drug-related objects, interference with government property, two counts of cruelty to children in the third degree, and bail jumping. He was also charged with violation of a special condition of probation by failing to report to jail at the appointed time. After the probation revocation hearing on January 13, 2015, the trial court withdrew Page’s first offender status in his burglary case, found by a preponderance of the evidence that he had violated probation by committing acts that resulted in additional charges against him, and resentenced him to 20 years to serve 10 in confinement.

1. Page argues that because the trial court had not entered a written judgment of conviction the trial court violated his due process rights by erroneously revoking probation and resentencing him in his burglary case after he failed to appear at the jail on August 29, 2014, and was subsequently accused of additional felony charges. Because Page failed to raise this issue in the trial court, it is waived and addressed pursuant to his ineffective assistance of counsel claim in Division 2.

2. Page also argues that he received ineffective assistance of counsel because his attorney failed to argue at the revocation hearing that his probation could not be revoked when a written judgment of conviction had not yet been entered. We disagree.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

The trial court pronounced Page’s sentence and signed the judgment of conviction on August 26, and therefore, when Page failed to appear at the jail on August 29, the trial court was authorized to revoke his probation. To the extent that Page argues he is supported by cases stating that an order is not effective until it is entered on the docket, those cases are inapposite to the situation at hand — whether Page was required to comply with the trial court’s order that he appear at the jail on a date certain — and deal instead with procedural issues of appeal or with juvenile court proceedings. Finally, because Page was a first offender, the trial court was withholding final adjudication of guilt pending completion of the sentence, and therefore, no double jeopardy concerns existed when the court imposed a new sentence of confinement after Page committed acts leading to several additional charges while serving the August 26 sentence.

Accordingly, because any objection to the revocation or motion to dismiss the revocation proceeding made by counsel on this ground would have been denied, Page has failed to establish that his attorney performed deficiently during the proceeding by failing to raise such an argument.

Judgment affirmed.

Boggs and Mercier, JJ., concur fully and specially.

BOGGS, Judge,

concurring fully and specially.

While I concur fully with the majority, I write specially to point out that the issue in Division 2 is not the date Page began to serve his sentence, nor is it the date the judgment of conviction and sentence was filed with the clerk. Rather, the event that gives rise to the trial court’s authority to revoke probation for violation of a condition of the sentence is the imposition of the sentence itself, both logically and practically. And the court’s sentence becomes effective once it is reduced to writing and signed by the trial judge. Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981) (“An oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is[ ]”), citing Morgan v. Mount, 195 Ga. 281 (24 SE2d 17) (1943) (legal sentence is as put in writing and signed by the judge). Indeed, once sentence is pronounced, the accused is in legal custody and not free to leave. See Suter v. State, 259 Ga. App. 28, 29 (1) (576 SE2d 10) (2002).

While the finality of a criminal judgment (determined by the filing of the judgment with the clerk) is required, for example, to pursue an appeal under the Appellate Practice Act or to determine the term of court within which the trial court entered its judgment, it does not control the effective date of the sentence. The date a final judgment of conviction and sentence becomes effective, and the date the sentence becomes effective for purposes of enforcing the punishment imposed, are independent of each other for the simple reason that the trial court must have the authority to immediately enforce what it just imposed by a written and signed order.

Page’s sentence became effective on August 26 when the order was signed by the trial court. Therefore, when Page violated a special condition of that sentence three days later (and before he even began to serve time under the sentence), the trial court was within its authority to revoke his probation for such violation. It is for this reason that Page’s ineffective assistance claim is without merit, as he has not shown that his trial counsel performed deficiently in failing to attack the revocation on this ground.

Decided March 10, 2016.

Jerry W. Moncus, for appellant.

Herbert M. Poston, Jr., District Attorney, B. Scott Minter, Assistant District Attorney, for appellee.

I am authorized to state that Judge Mercier joins in this special concurrence.

       Page filed an application for discretionary review, which this Court granted in an order issued on May 8, 2015.

       Pursuant to OCGA § 42-8-60 (a) (1), the court withheld adjudication of guilt.

       A warrant for arrest for Page’s violation of the special condition was issued on September 2, 2014, although Page was actually booked in jail at that time.

       See Dickey v. State, 257 Ga. App. 190, 194-195 (3) (570 SE2d 634) (2002).

       (Citation and punctuation omitted.) Chalk v. State, 318 Ga. App. 45, 46 (1) (733 SE2d 351) (2012), citing Strickland v. Washington, 466 U. S. 668, 688 (III) (104 SCt 2052, 80 LE2d 674) (1984).

       See Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981). See also Vann v. State, 234 Ga. App. 130 (506 SE2d 173) (1998).

       See, e.g., In re Tidwell, 279 Ga. App. 734, 739 (1) (b) (632 SE2d 690) (2006) (“the filing with the clerk of a judgment, signed by the judge, constitutes the entry of the judgment, and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of the same....”) (punctuation omitted); State v. Moore, 207 Ga. App. 677, n. 1 (428 SE2d 815) (1993) (“[ujntil an order is signed by the judge (and is filed) it is ineffective for any purpose”); Uniform Juvenile Court Rule 17.1.

       Double j eopardy does prevent a court from imposing additional punishment where doing so would upset the defendant’s legitimate “expectation of finality in his sentence [but] a defendant may be resentenced after the original sentence has begun being served, so long as (a) such resentencing is allowed by law, and (b) the defendant has no reasonable expectation in the finality of the original sentence.”

        Stephens v. State, 289 Ga. 758, 764 (2) (b) (2) (716 SE2d 154) (2011) (citations omitted), quoting Wilford v. State, 278 Ga. 718, 719-720 (606 SE2d 252) (2004), and United States v. DiFrancesco, 449 U. S. 117, 136 (101 SCt 426, 66 LE2d 328) (1980). See also OCGA § 42-8-60.

       See Jones v. State, 329 Ga. App. 439, 448 (4) (765 SE2d 639) (2014) (explaining that “the failure to make a meritless objection cannot be evidence of ineffective assistance”) (citation and punctuation omitted). Cf. Chalk, 318 Ga. App. at 48-49 (1) (c) (holding that counsel was not ineffective for failing to file a motion to dismiss on speedy trial grounds); Phillips v. State, 278 Ga. App. 198, 201-203 (2) (a) (628 SE2d 631) (2006) (holding that counsel was not ineffective for failing to file a motion to dismiss based on the sufficiency of the indictment).

       See Jenkins v. State, 284 Ga. 642, 643 (1) (670 SE2d 425) (2008).

        Bowen v. State, 144 Ga. App. 329, 332-333 (241 SE2d 431) (1977) (holding that entry of judgment is when it is filed with the clerk; trial judge has power during the term of court in which judgment is entered to revise, correct, revoke, or modify that judgment).


author: BARNES, Presiding Judge.

text:
    A15A2029.
    LEWIS v. CITY OF SAVANNAH.
    (784 SE2d 1)
   BARNES, Presiding Judge.

The Recorder’s Court of Chatham County entered an order finding that Isaac Lewis had violated a 2010 cease and desist order (the “2010 Order”) and several municipal ordinances by operating illegal rooming houses in Savannah. The recorder’s court fined Lewis for the violations (including a $1,000 fine for violating the 2010 Order) and sentenced him to several months of incarceration in the county detention center. Lewis filed a petition for a writ of certiorari to the superior court, arguing that the recorder’s court erred by holding him in contempt of the 2010 Order, which had been entered in an unrelated case that had been dismissed. Lewis also argued that the recorder’s court erred in sanctioning him for violating the municipal ordinances because he was not provided a reasonable opportunity to correct the deficiencies in the properties before the enforcement action was commenced against him. The superior court affirmed the recorder’s court, and Lewis then filed an application for discretionary appeal, which this Court granted.

For the reasons discussed below, we conclude that the recorder’s court lacked jurisdiction to hold Lewis in contempt of the 2010 Order. We therefore reverse the superior court to the extent that it upheld the recorder’s court decision holding Lewis in contempt of the 2010 Order and fining him $1,000 for that violation. In addition, because it is unclear from the record to what extent the recorder’s court relied upon its finding that Lewis was in contempt of the 2010 Order in sentencing Lewis to several months of incarceration, we vacate the superior court’s affirmance of Lewis’s sentence and remand so that Lewis can be resentenced in the recorder’s court consistent with this opinion. We affirm the superior court in all other respects.

The 2010 Cease and Desist Order. The record reflects that Lewis has operated rooming houses for tenants in the City of Savannah (the “City”) since the 1990s and has received repeated notices from City inspectors concerning zoning ordinance violations and other problems with his operation of the houses. In October 2010, the City brought a code enforcement action against Lewis in the Recorder’s Court of Chatham County for his illegal operation of a rooming house located at 2514 Whitaker Street. That same month, the recorder’s court entered the 2010 Order, which required Lewis to correct certain deficiencies at 2514 Whitaker Street, obtain a certificate of occupancy and other required permits, pay restitution to the tenants, and pay a $1,000 fine for his violations of the Savannah Code. Paragraph 7 of the 2010 Order further provided that Lewis “shall cease and desist from any activities that violate the Code of the City of Savannah,” and “shall not manage, lease, rent or reside in any additional illegal rooming house within Chatham County.” The 2010 Order also stated that failure to comply with its provisions “may result in a fine of up to $1,000 and/or up to 30 days in jail.”

Lewis was ordered to report back to recorder’s court in November 2010. After conducting a hearing in which a City inspector provided a status update regarding the rooming house at issue, the recorder’s court judge dismissed the case, as reflected by a handwritten notation of “Dismissed” on a printout of the docket that was signed by the judge and then entered in the recorder’s court records. According to Lewis, he later went to the clerk’s office of the recorder’s court and sought to pay the fine imposed on him by the 2010 Order, but the clerk told him that “there [was] no fine” because the case had been dismissed.

The Consolidated 2013 Enforcement Actions. Following inspections in 2013, the City brought a series of new code enforcement actions against Lewis in recorder’s court for violating the Savannah Code in his operation of rooming houses at 20 other properties. None of these enforcement actions were for the house located at 2514 Whitaker Street, the subject of the 2010 Order.

Based on the alleged Savannah Code violations in the 20 properties, the City sought fines and penalties from Lewis and requested that he be incarcerated for 17 months. The City also argued that Lewis was in violation of the 2010 Order from the unrelated case because he never paid the $1,000 fine and because his operation of illegal rooming houses on the 20 properties contravened Paragraph 7 of the 2010 Order. The City requested that Lewis be fined an additional $1,000 for failing to comply with the 2010 Order.

The 2013 enforcement actions against Lewis were consolidated into a single case that was heard by the same recorder’s court judge who had dismissed the City’s 2010 case against Lewis. A three-day evidentiary hearing ensued in which the State presented the testimony of various City inspectors and other witnesses to the deficiencies in the 20 properties. Lewis also testified and called several defense witnesses on his behalf.

During the three-day hearing, Lewis moved to dismiss the consolidated enforcement actions, arguing, among other things, that the 2010 Order could not be enforced against him in the current proceedings because the unrelated 2010 case had been dismissed. The trial court verbally denied the motion, finding that while the 2010 case “was dismissed,” the 2010 Order nevertheless “remain[ed] intact” and could be enforced against Lewis. The recorder’s court later entered a written order denying Lewis’ motion to dismiss.

Following the hearing, the recorder’s court entered a detailed final order, finding that Lewis’ operation of the rooming houses on the 20 properties was in violation of multiple provisions of the Savannah Code, as the City had alleged. The recorder’s court also found that Lewis was in violation of the 2010 Order. Based on these findings, the recorder’s court ordered Lewis to pay $73,050 in fines and penalties (which included “a $1,000.00 fine as required by the [2010 Order]”) and sentenced him to serve eight-and-one-half months in the county detention center.

Lewis appealed the decision of the recorder’s court by filing a petition for a writ of certiorari to the Superior Court of Chatham County. See Smith v. Gwinnett County, 246 Ga. App. 865, 867 (1) (b) (542 SE2d 616) (2000) (proper procedure for appealing the decision of a recorder’s court is by filing a petition for a writ of certiorari to the superior court). See also OCGA §§ 5-4-1 (a); 15-6-8 (4) (B), (C). He argued that the recorder’s court erred by finding him in contempt of the 2010 Order because the 2010 case had been dismissed. Lewis further argued that the recorder’s court erred by sanctioning him for violating the Savannah Code in his operation of the 20 properties because the City had failed to provide him with a reasonable opportunity to correct the deficiencies in the properties before filing suit against him.

The superior court rejected Lewis’ arguments and affirmed the decision of the recorder’s court. Lewis filed an application for discretionary appeal, which this Court granted, resulting in the present appeal.

1. Lewis contends that the superior court erred in upholding the decision of the recorder’s court finding him in contempt of the 2010 Order. Lewis argues that the recorder’s court could not hold him in contempt of an order from a different case that had been dismissed. We agree.

Where an appeal from recorder’s court comes before the superior court on writ of certiorari pursuant to OCGA § 5-4-3, the superior court’s scope of review is limited to a consideration of “errors of law” and whether “the judgment or ruling below was sustained by substantial evidence.” OCGA § 5-4-12 (b). Whether a court has jurisdiction and the authority to enter a contempt finding is a legal question, and we owe no deference to the ruling of the superior court or recorder’s court on this question and instead “conduct a de novo review of the matter for plain legal error.” Montgomery v. Morris, 322 Ga. App. 558, 559 (1) (745 SE2d 778) (2013).

Under Georgia law, the unqualified dismissal of a case terminates the action, divests the trial court of jurisdiction to take further action in the case, and renders all orders entered after the dismissal a mere nullity. See Montgomery, 322 Ga. App. at 560 (1); Gallagher v. Fiderion Group, LLC, 300 Ga. App. 434, 436 (1) (685 SE2d 387) (2009); Cotton v. Surrency, 277 Ga. App. 158 (626 SE2d 148) (2006). Furthermore, upon dismissal of the case, all prior orders that were entered in the case are superseded and can no longer be enforced against the parties. See Montgomery, 322 Ga. App. at 560 (1); Gallagher, 300 Ga. App. at 436 (1). Thus, the dismissal of a case divests the court of jurisdiction to consider a subsequent contempt motion and precludes the court from finding a party in contempt of an order previously entered in that case. See Montgomery, 322 Ga. App. at 560-561 (1); Gallagher, 300 Ga. App. at 436-437 (1). See also Knapp v. Cross, 279 Ga. App. 632, 637 (3) (632 SE2d 157) (2006) (holding that party could not be held in contempt for violating an order that was no longer in effect).

Applying these principles to the present case, we note that at the evidentiary hearing before the recorder’s court in the 2013 enforcement action, Lewis testified that the unrelated 2010 case had been dismissed in November 2010, and he introduced into evidence the printout of the docket sheet from the case showing the notation “Dismissed” that had been signed by the recorder’s court judge and entered in the recorder’s court records. Lewis further testified that when he later went to the clerk’s office of the recorder’s court and sought to pay the fine imposed on him by the 2010 Order, the clerk told him that the case had been dismissed and that the fine no longer needed to be paid. The City did not introduce any testimony or documentary evidence contradicting Lewis’s claim that the 2010 case had been dismissed, and the recorder’s court judge (who was the same judge who had written the “Dismissal” notation on the 2010 docket sheet) found at the conclusion of the hearing that the 2010 case “was dismissed.”

Under these circumstances, where the uncontroverted evidence shows that the 2010 case against Lewis had been dismissed, the recorder’s court was divested of jurisdiction to consider the contempt motion as part of the 2013 enforcement action and lacked authority to enforce the 2010 Order, which was no longer in effect. See Montgomery, 322 Ga. App. at 560-561 (1); Gallagher, 300 Ga. App. at 436-437 (1); Knapp, 279 Ga. App. at 637 (3). Consequently, the superior court erred in upholding the decision of the recorder’s court finding Lewis in contempt of the 2010 Order.

In arguing for a different result, the City emphasizes that the dismissed 2010 case was a code enforcement action brought against Lewis in recorder’s court, which was a quasi-criminal proceeding. See DeKalb County v. Gerard, 207 Ga. App. 43 (1) (427 SE2d 36) (1993). While the cases cited supra in our opinion addressed the effect of an unqualified dismissal in a civil case on subsequent contempt proceedings, the City cites to no persuasive legal authority, and we have found none, that would justify treating the effect of a dismissal in a quasi-criminal case differently or less stringently than a dismissal in a civil case. Indeed, if an order entered in a quasi-criminal case were to be enforced against a person even though the case had been previously dismissed, it would raise significant due process concerns as to whether the person had “fair warning” of the order’s continued effect. See Pitts v. State, 293 Ga. 511, 514 (1) (748 SE2d 426) (2013) (“In the context of a law which criminalizes certain behavior, due process requires that the law give a person of ordinary intelligence fair warning of the specific conduct which is forbidden or mandated.”). Hence, in considering the effect of a dismissal on subsequent contempt proceedings, we discern no basis for treating the dismissal of a quasi-criminal case differently than the dismissal of a civil case.

The City also asserts in the alternative that the 2010 case was administratively closed to remove the matter from the pending hearing docket rather than dismissed. But the City presented no testimony or documentary evidence at the hearing before the recorder’s court to support this assertion, the handwritten notation of the recorder’s court judge on the docket sheet said “Dismissed” without any limitation or further qualification, and the judge involved in both the 2010 case and the 2013 cases found that the 2010 case had been “dismissed.” The City’s assertion therefore is without merit.

For these combined reasons, the recorder’s court erred by finding Lewis in contempt of the 2010 Order and fining him $1,000 for that violation, and we therefore reverse the superior court to the extent that it upheld those rulings by the recorder’s court. Furthermore, it is unclear to what extent the recorder’s court relied upon its finding of contempt when it sentenced Lewis to eight-and-one-half months of incarceration. For that reason, we also vacate the superior court’s affirmance of Lewis’s sentence and remand so that Lewis can be resentenced in the recorder’s court consistent with this opinion.

2. In two related enumerations of error, Lewis contends that the superior court erred in upholding the decision of the recorder’s court sanctioning him for violating the Savannah Code because the City never gave him a reasonable opportunity to correct the code violations at the 20 properties before filing suit against him. According to Lewis, the City’s failure to provide him with a reasonable opportunity to correct the deficiencies violated OCGA § 36-74-23 (b), and there was no evidentiary basis for the superior court or recorder’s court to find that he had committed “repeat violations,” an exception to the aforesaid statutory requirement. Lewis further argues that the City’s failure to provide him with notice and reasonable opportunity to correct the deficiencies violated his right to due process. We discern no basis for reversal.

(a)We first address Lewis’s contention that he was entitled to a reasonable opportunity to correct the deficiencies in the properties under OCGA § 36-74-23, which provides in relevant part:

(b) Except as provided in subsections (c) and (d) of this Code section, if a violation of any code or ordinance is found, the code enforcement officer shall notify the violator and give him or her a reasonable time to correct the violation. Should the violation continue beyond the time specified for correction, the code enforcement officer shall proceed with enforcement through the appropriate court or shall proceed with enforcement through the appropriate code enforcement board. ...
(c) If a repeat violation is found, the code enforcement officer shall notify the violator but is not required to give the violator a reasonable time to correct the violation. . . .
(d) If the code enforcement officer has substantial reason to believe a violation presents a serious threat to the public health, safety, and welfare or if the violation is irreparable or irreversible in nature, the code enforcement officer shall make a reasonable effort to notify the violator and may immediately notify the enforcement board and request a hearing.

Upholding the recorder’s court, the superior court concluded that the City was not required to give Lewis a reasonable opportunity to correct the Savannah Code violations before filing suit against him because he had committed “repeat violations” under OCGA § 36-74-23 (c), and because the City had a reasonable belief that the violations posed a serious threat to public health, safety, and welfare under OCGA § 36-74-23 (d). On appeal, Lewis argues that the superior court erred in concluding that he had committed “repeat violations,” but does not address the superior court’s alternative conclusion that the violations posed a serious threat to public health, safety, and welfare.

Because Lewis provides no citations to the record or legal argument as to why the superior court erred in concluding that the Savannah Code violations posed a serious threat to public health, safety, and welfare, any argument in that regard has been abandoned for purposes of appeal. See Court of Appeals Rule 25 (c) (2). Accordingly, regardless of whether the superior court erred in finding that Lewis committed “repeat violations,” the superior court’s finding that the City did not have to afford Lewis with a pre-suit opportunity to correct the deficiencies under OCGA § 36-74-23 (b) stands affirmed on the alternative ground that the violations posed a serious threat to public health, safety, and welfare. See Ray v. Hartwell R. Co., 289 Ga. 452, 452-453 (711 SE2d 722) (2011); LabMD v. Admiral Ins. Co., 323 Ga. App. 906, 908-909 (2) (749 SE2d 11) (2013).

Decided March 10, 2016.

Phillips, Roberts & Carson, Robert P. Phillips III, for appellant.

Lester B. Johnson III, for appellee.

(b) We next address Lewis’s contention that he was deprived of due process because the City failed to provide him with notice and a reasonable opportunity to correct the deficiencies in the properties.

The constitutionally-guaranteed right to due process of law is, at its core, the right of notice and the opportunity to be heard. Neither the federal nor the state constitution’s due process right guarantees a particular form or method of procedure, but is satisfied if a party has reasonable notice and opportunity to be heard, and to present its claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it.

(Citations and punctuation omitted.) Cobb County School Dist. v. Barker, 271 Ga. 35, 37 (2) (518 SE2d 126) (1999).

The record reflects that Lewis was provided notice of the Savannah Code violations alleged by the City and was given ample opportunity to respond to those allegations during the three-day hearing conducted in recorder’s court. Providing Lewis with notice and an opportunity to respond to the charges against him was sufficient to satisfy his due process rights, see Barker, 271 Ga. at 37 (2), and the superior court thus committed no error in upholding the decision of the recorder’s court sanctioning Lewis for violating the Savannah Code by operating rooming houses on the 20 properties.

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

Ray and McMillian, JJ., concur.

       Section 8-3002 of the City of Savannah’s Code of Ordinances (the “Savannah Code”) defines a rooming house as “[a] dwelling in which meals or lodging or both are furnished for compensation to more than two and less than ten nontransient persons.”

       The recorder’s court did not use the word “contempt” in finding that Lewis had violated the 2010 Order, but “orders are construed according to their substance and function and not merely by nomenclature.” Forest City Gun Club v. Chatham County, 280 Ga.App. 219, 220 (633 SE2d 623) (2006).

       The City cites to OCGA § 16-1-4, which provides:
      No conduct constitutes a crime unless it is described as a crime in this title or in another statute of this state. However, this Code section does not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order, civil judgment, or decree.
      This statutory provision clearly does not address the effect of the dismissal of a case on subsequent contempt proceedings.

       Lewis also vaguely claims that “City Ordinances” required that he be afforded a reasonable opportunity to correct the deficiencies in the properties before an enforcement action could he commenced. Because Lewis has failed to provide any citation to specific legal authority or to the record to support his claim regarding “City Ordinances,” his claim is deemed abandoned and we will not address it. See Court of Appeals Rule 25 (c) (2). See also In the Interest of G. Q., 328 Ga. App. 69, 77 (1) (c) (761 SE2d 490) (2014) (concluding that claim on appeal had been abandoned where appellant failed "to support [his] claim with any meaningful argument or with statutory or legal authority for [his] contention”) (citation and punctuation omitted).


author: Doyle, Chief Judge.

text:
    A15A2139.
    STURGESS v. OA LOGISTICS SERVICES, INC. et al.
    (784 SE2d 432)
   Doyle, Chief Judge.

Maria Sturgess appeals from the grant of summary judgment to OALogistics Services, Inc. (“OA”), and StaffChex, Inc., in her wrongful death claim against them based on the death of her son, Nickifor Zephyrine. Sturgess contends that the trial court erred by ruling that (1) her claim was barred by the exclusive remedies provision of the Georgia Workers’ Compensation Act (“WCA”), and (2) StaffChex is a temporary staffing firm covered by the WCA. Because the undisputed facts show that Zephyrine’s death arose out of his employment under the positional risk doctrine and that StaffChex is covered by the WCA, we affirm the grant of summary judgment.

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. Ade 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.

So viewed, the record shows that OA contracted with StaffChex to provide temporary workers to work at a warehouse owned and operated by OA. On February 16,2012, Christopher Lema applied for a position with StaffChex using Christopher Young-Evans as an alias. Certain portions of Lema’s application form were incomplete, and his purported photo identification appeared different from his actual appearance. OArequired StaffChex to perform criminal background checks on each applicant before they were employed, but before Lema’s check was returned, he began working at an OA warehouse. The check on the alias would eventually show no criminal history, despite the fact that Lema had a felony criminal record.

On February 24, 2012, still before the return of the criminal background check, Lema was employed at the OA warehouse along with Zephyrine, who drove a forklift. Zephyrine’s forklift ran out of fuel, so he went to an office area to inquire about refueling. He encountered a female employee who told him that he might find a supervisor if he waited outside the office. As Zephyrine waited outside the office with his back turned, Lema entered the office and forcibly attempted to kiss the female co-worker, who immediately pushed him off. In response, Lema smirked, “stood back[,] . . . and walked out.” Lema then produced a handgun and shot Zephyrine in the back of the head, re-entered the office, and sexually assaulted the female employee. During the ensuing struggle, Lema inexplicably passed out, and the female employee fled, warning the other employees in the warehouse. According to the female employee, Zephyrine, who was a family friend, had not been aware of the assault, had not attempted to intervene, and had not interacted with Lema before that occasion.

Based on Zephyrine’s death, Sturgess sued OA, StaffChex, Lema, a John Doe who allegedly supplied Lema the gun, and another corporate entity. Among the allegations were claims that OA and StaffChex negligently conducted the hiring process, resulting in the hiring of a convicted felon who attacked his co-workers, killing Zephyrine.

Following discovery, StaffChex and OA moved for summary judgment, and the trial court granted it in favor of both parties on the ground that the exclusive remedy provisions of the WCA bar Sturgess’s tort claims against them. Sturgess now appeals.

1. Sturgess contends that the trial court erred by concluding that Zephyrine’s death arose out of and in the course of his employment. We disagree.

Under OCGA § 34-9-11 (a), the WCAis the exclusive remedy for injuries “by accident arising out of and in the course of . . . employment.”

A felonious assault by a third party upon an employee is treated as an accident covered by the Act, so long as the wil[l]ful act is not directed against the employee for reasons personal to the employee. [] In order to determine if the assault occurred for reasons personal to the employee, we consider whether the injuries of which the employee complains (1) arose out of and (2) in the course of [his] employment. If these two conditions are met, the employee’s tort claims are barred by the exclusive remedy provisions of the [WCA]. Accordingly, whether the attack [in this case] occurred for reasons personal to [Zephyrine] depends upon whether [his] death arose out of and in the course of [his] employment —

It is beyond dispute that Zephyrine’s death arose in the course of his employment because it occurred while he was on duty performing his job functions at his employment location. Accordingly, our analysis focuses on whether Zephyrine’s death “arose out of” his employment.

The words “arising out of” mean that there must be some causal connection between the conditions under which the employee worked and the injury which he received. The causative danger must be incidental to the character of the employment, and not independent of the relation of master and servant. The accident must be one resulting from a risk reasonably incident to the employment. And a risk is incident to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service. It arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment.
Contrarily, the definition excludes an injury which can not fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment.

Although Sturgess points out the patent lack of connection between the shooting and Zephyrine’s employment, StaffChex argues that the killing nevertheless arose out of Zephyrine’s employment under the positional risk doctrine. That doctrine holds that

an accidental injury arises out of the employment when the employee proves that his work brought him within range of the danger by requiring his presence in the locale when the peril struck, even though any other person present would have also been injured irrespective of his employment.

Applying this doctrine to the present facts demonstrates that a causal connection to Zephyrine’s workplace does exist despite the seemingly random nature of the attack on Zephyrine. As this Court pointed out in Chaparral Boats v. Heath, a whole-court opinion analyzing the positional risk doctrine,

the positional risk doctrine . . . holds that the risk does not have to be peculiar to the employment where a causal connection between the employment and the injury is otherwise established by evidence that a condition of the employment required the employee’s presence at a location and a time where the employee confronted the risk. However, the doctrine also remains consistent with the rule that an injury arises out of the employment only when it is “peculiar” to the employment in the sense that there must be a causal connection between a condition of the employment and the injury. [Our cases] make this clear by stating explicitly that the positional risk doctrine does not apply where the risk which causes the employee’s injury is also common to the general public without regard to such conditions, and occurs independently of place, employment, or pursuit. Although an injury arises out of the employment under the positional risk doctrine if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured, this does not mean that every injury which occurs while an employee is located somewhere at work necessarily arises out of the employment. Where the injury would have occurred regardless of where the employee was required to be located, and results from a risk to which the employee would have been equally exposed apart from any condition of the employment, there is no basis for finding a causal connection between the employment and the injury, and no basis for compensation under the positional risk doctrine. The general rule still applies that the injury does not arise out of the employment where the causative danger is not “peculiar to the work” in a way that causally connects the employment to the injury.

For example, when an injury occurs in the workplace but is idiopathic, such as a sudden knee failure that could have happened at any time and place, then the injury is not a work-related injury within the scope of the WCA. But it remains true that

even where the risk which caused the injury to the employee is common to the public at large — and therefore not peculiar to the employment — the injury arises out of the employment if a duty related to the employmentp laced the employee in a locale which exposed the employee to the common risk.

Here, it is undisputed that Zephyrine’s employment placed him in a locale that unfortunately exposed him to being shot by Lema. “It was only because of his employment that [Zephyrine] was at the [OA warehouse] on the morning of his murder and only because of his employment that he had any contact or relationship with [Lema].” Thus, the risk of being shot by Lema, while not peculiar to Zephyrine’s workplace, was nevertheless connected to his workplace by virtue of where it occurred. As stated above, “an injury arises out of the employment under the positional risk doctrine if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured.” Accordingly, under the specific facts of this case, we conclude that the trial court correctly ruled that Zephyrine’s injury resulted from an accident arising out of and in the course of his employment for purposes of the WCA.

2. Sturgess also argues that even if the injury was an accident within the scope of the WCA, the WCA’s exclusive remedy provision does not apply here because StaffChex is not a traditional employer and does not meet the definition of a “temporary help contracting firm,” which is deemed to be a statutory employer for purposes of the WCA.

Under OCGA § 34-9-11 (c),

[t]he immunity provided by [the WCA] shall apply and extend to the businesses using the services of a temporary help contracting firm, as such term is defined in Code Section 34-8-46, . . . when the benefits required by this chapter are provided by either the temporary help contracting firm... or the business using the services of... such firm or company. A temporary help contracting firm . . . shall be deemed to be a statutory employer for the purposes of this chapter.

OCGA § 34-8-46 defines “temporary help contracting firm” as

any person who is in the business of employing individuals and, for compensation from a third party, providing those individuals to perform work for the third party under the general or direct supervision of the third party. Employment with a temporary help contracting firm is characterized by a series of limited-term assignments of an employee to a third party, based on a contract between the temporary help contracting firm and the third party.

Decided March 10, 2016

Savage & Turner, Brent J. Savage, Kathryn H. Pinckney, for appellant.

Ellis Funk, Kenneth G. Menendez; Forbes, Foster & Pool, John A. Foster, for appellees.

Here, Sturgess argues that because Zephyrine had been working as a forklift driver “for a couple of months” at OA and there was no evidence of a planned end to that term, StaffChex cannot be considered a temporary help contracting firm. Nevertheless, it is undisputed that Zephyrine worked at OA under OA’s general supervision as part of StaffChex’s regular business of contracting with third parties to provide employees on a temporary basis. This arrangement was memorialized in a contract between StaffChex and OA. It is undisputed that OA’s employment needs fluctuated, StaffChex provided OA staff as necessary, and Zephyrine was not considered a regular long-term employee at the time he was killed. Absent other facts to the contrary, we decline to hold that Zephyrine’s ongoing two-month work stint demonstrates any deviation from the typical temporary staffing arrangement contemplated by OCGA § 34-8-46. Accordingly, this enumeration is without merit.

Judgment affirmed.

Phipps, P. J., and Boggs, J., concur.

       OCGA § 34-9-11.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       OCGA § 34-9-1 (4).

       Although not dispositive, we note that there is nothing in the record to suggest that the attack on Zephyrine was motivated by reasons personal to Zephyrine or related to his employment. Instead, it appears that Lema fatally shot Zephyrine simply because Zephyrine was in the wrong place at the wrong time.

       (Citations and punctuation omitted.) Burns Intl. Security Sues. Corp. v. Johnson, 284 Ga. App. 289, 290-291 (1) (643 SE2d 800) (2007).

       See id. at 292 (1) (b) (“An injury arises in the course of employment when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of [his] duties, and while [ ]he is fulfilling those duties or engaged in doing something incidental thereto. This statutory requirement relates to the time, place and circumstances under which the injury takes place.”) (punctuation omitted).

       (Punctuation and footnote omitted.) Dawson v. Wal-Mart Stores, 324 Ga. App. 604, 607 (2) (751 SE2d 426) (2013).

       (Punctuation omitted; emphasis supplied.) Chaparral Boats v. Heath, 269 Ga. App. 339, 341 (1) (606 SE2d 567) (2004) (whole court), quoting Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. 566, 567 (1) (263 SE2d 455) (1979) (whole court).

       269 Ga. App. at 339.

       (Citations and punctuation omitted; emphasis supplied.) Id. at 342-343 (1).

       Idiopathic injuries are “peculiar to the individual” or arise “spontaneously or from an obscure or unknown cause.” Merriam-Webster’s Online Dictionary, http://www.merriamwebster.com/dictionary/idiopathic.

       See Chambers v. Monroe County Bd. of Commissioners, 328 Ga. App. 403, 403-405 (762 SE2d 133) (2014).

       See id., citing Chaparral Boats, 269 Ga. App. at 339-344, 348 (1) (holding that a nurse did not suffer an injury within the scope of the WCA when she was walking at a pace of her own and “felt popping and pain in her left knee”).

       (Emphasis supplied.) Chaparral Boats, 269 Ga. App. at 342 (1).

        Peterson v. RTM Mid-America, 209 Ga. App. 691, 693 (2) (434 SE2d 521) (1993) (noting Michigan adoption of positional risk doctrine and applying same for purposes of Michigan workers’ compensation statute).

       (Punctuation and emphasis omitted.) Chaparral Boats, 269 Ga. App. at 343 (1).

       See Peterson, 209 Ga. App. at 693 (2). We note that the present facts are distinct from those in Kennedy v. Pineland State Bank, 211 Ga. App. 375 (439 SE2d 106) (1993), which did not address the positional risk doctrine. In that case, the Court held that a sexual assault of a female bank employee by a male bank director while the employee was helping him conduct business in the bank vault did not arise out of her employment. This reflects a valid public policy that the exclusive remedy provision of the WCA should not “shield an employer from all tort liability based on incidents of sexual harassment. The clear public policy emanating from federal and [state] law holds that an employer is charged with maintaining a workplace free from sexual harassment. Applying the exclusivity rule of workers’ compensation to preclude any and all tort liability effectively would abrogate this policy.” Byrd v. Richardson-Greenshields Securities, 552 S2d 1099, 1104 (Fla. 1989). See also SCI Liquidating Corp. v. Hartford Fire Ins. Co., 272 Ga. 293, 294 (526 SE2d555) (2000) (“Sexual harassment claims have been held not to ‘arise out of’ employment, even though they occur ‘in the course of’ employment.”), citing Murphy v. ARA Svcs., 164 Ga.App. 859, 860 (298 SE2d 528) (1982) (holding that the WCA did not bar tort claims based on a pattern of sexual harassment).

       See OCGA § 34-9-11 (c).


author: PHIPPS, Presiding Judge.

text:
    A15A2244.
    JACKSON v. THE STATE.
    (784 SE2d 7)
   PHIPPS, Presiding Judge.

Johnifer Jackson was indicted for rape, aggravated sodomy, and making a false statement. Jackson subsequently filed a motion to suppress evidence. He also filed a plea in bar, asserting that his prior guilty plea to several misdemeanor offenses precluded this prosecution. The trial court denied both motions, and Jackson appeals. Finding no error, we affirm.

1. “In considering an appeal from a denial of a motion to suppress, this Court construes the evidence in favor of the trial court’s ruling, and we review de novo the trial court’s application of the law to undisputed facts.” So viewed, the record shows that around 11:30 a.m. on December 13,2012, Officer Eric Higginbotham of the Athens-Clarke County Police Department was dispatched to the Oak Hill Apartment Complex to respond to a 911 call. The 911 caller reported that a rape had possibly occurred in an apartment in Building Eight and that the suspect, who was last seen near the building, was wearing a puffy gray jacket, a gray skull cap, and blue jeans. The caller also described the suspect’s race.

When Higginbotham arrived at the complex, he saw an individual matching the caller’s description standing in front of Building Four. Higginbotham approached the individual, who identified himself as Jackson, and discovered that Jackson had been barred from the apartment complex. At that point, Higginbotham arrested Jackson for criminal trespass, searched him, and found a knife and an open bottle of alcohol on his person. Higginbotham then transported Jackson to the police department, where detectives were investigating the rape report.

Before speaking with Jackson, Detective Harrison Daniel interviewed the alleged rape victim and the victim’s daughter, both of whom stated that the victim had returned home from work that morning, consumed several alcoholic beverages, and fallen asleep on the couch. The victim’s daughter went to visit a friend while the victim was sleeping, leaving the apartment door closed but unlocked. When the daughter returned, the apartment was locked, and she began banging on the door. A man the daughter later identified as Jackson opened the door and fled from the apartment. The daughter entered and found her mother asleep on the couch, with her panties on the floor. The daughter woke her mother, who felt as though she had been vaginally penetrated.

At approximately 2:30 p.m., Detective Daniel interviewed Jackson, who admitted that he had been in contact with the victim that day, but denied any sexual activity. Twenty minutes later, Daniel obtained a penile swab from Jackson to preserve latent DNA or forensic evidence that might be on the surface of his penis. Daniel did not secure a warrant for the swab because he believed, based on his training as a sexual assault investigator, that any potential evidence was “fleeting or ... could be compromised in a short amount of time.” Specifically, such evidence could be wiped off by hands, clothing, or other means. As Daniel explained, he wanted to act quickly because he feared the evidence would be

compromised meaning that it could no longer be on the surface that it was originally on, meaning potential DNA evidence that would, that could be on Mr. Jackson’s penis at the time could have been transferred to another surface, could have been wiped off, could have been removed in many other ways. So it wouldn’t be recoverable from that surface anymore.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects.” Despite this protection, officers may gain access to a person or property by securing a warrant, obtaining consent, or through “the existence of exigent circumstances which require the officers to act immediately without warrant or consent.” Exigent circumstances arise when police have probable cause to believe that evidence will be removed or destroyed before a warrant can be secured. In analyzing exigency, we consider “whether police had an objectively reasonable basis for fearing the imminent destruction of the evidence at issue during the time it took police to obtain a search warrant.” The question is whether the facts, as they appeared at the time of the search, “would lead a reasonable, experienced officer to believe that evidence might be destroyed before a warrant could be secured.”

The trial court concluded that exigent circumstances permitted the penile swab here. We agree. Although no Georgia authority addresses this precise issue, several jurisdictions have approved similar warrantless searches and seizures. In Kaliku v. United States, for example, the District of Columbia Court of Appeals refused to suppress penile swab evidence obtained without a warrant because, given the delicate and easily compromised nature of DNA evidence, “there was an urgency to its collection which justified the officer’s reliance on exigent circumstances, rather than seeking a court order.” The Texas Court of Appeals also found a warrantless penile swab reasonable where there was “a need to act before the DNA evidence could be damaged or destroyed.” And multiple courts — including the United States Supreme Court — have determined that, under proper circumstances, officers may take fingernail scrapings from an accused or swab hands without a warrant to preserve forensic evidence.

The rape investigation in this case led authorities to Jackson, who was discovered near the victim’s apartment shortly after the alleged assault and fit the description of the man seen fleeing from the apartment. Although the victim was asleep during the incident, she discovered when she woke that her underwear had been removed, and she felt as though she had been vaginally penetrated. Given these circumstances, Daniel had probable cause to conclude that Jackson had assaulted the victim. Furthermore, Daniel believed, based on his training and experience in sexual assault investigation, that latent DNA contained on the surface of a penis is fleeting and easily compromised. He reasonably feared that waiting to obtain a warrant for a penile swab risked “the imminent destruction” of any evidence in the area. Accordingly, the trial court properly denied Jackson’s motion to suppress.

2. Jackson also argues that the trial court erred in denying his double jeopardy plea in bar. The record shows that on January 8, 2013, the Athens-Clarke County Solicitor-General charged Jackson with the misdemeanor offenses of criminal trespass, carrying a concealed weapon, and open container in connection with his arrest at the Oak Hill Apartment Complex. The following month, on February 22, 2013, the assistant district attorney handling the rape case e-mailed the solicitor’s office, asking that the misdemeanor prosecution be placed “on hold” until the rape investigation was completed. Nevertheless, the misdemeanor charges proceeded to a plea hearing, and Jackson pled guilty to the charges on March 1, 2013.

Almost one year later, Jackson was indicted for the rape and aggravated sodomy of the victim, as well as making a false statement during the sexual assault investigation. Jackson filed a plea in bar, asserting that his March 1, 2013 misdemeanor guilty pleas barred further prosecution. The trial court denied the motion, concluding that because the misdemeanor and felony-related charges did not arise from the same conduct, double jeopardy was not implicated.

Under OCGA § 16-1-7 (b), if several crimes [1] arising from the same conduct are [2] known to the proper prosecuting officer at the time of commencing the prosecution and are [3] within the jurisdiction of a single court, they must be prosecuted in a single prosecution. A second prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for crimes which should have been brought in the first prosecution under OCGA § 16-1-7 (b). In order for this procedural aspect of double jeopardy to prohibit a prosecution, all three prongs must be satisfied.

Crimes arise from the same conduct if they emerge “from the same transaction or continuing course of conduct, occur at the same scene, occur on the same date, and occur without a break in the action.” Moreover, “if it is necessary to present evidence of the one crime in order to prove the other, then the State must prosecute those charges at the same time.” On appeal, we will affirm the trial court’s denial of a double jeopardy plea in bar if the court’s findings support its conclusions.

Jackson argues that the misdemeanor and felony-related offenses arise from the same conduct because they are intertwined and each offense requires proof of the others. We disagree. Although the offenses occurred on the same date and close in time, they took place in different locations (inside a particular apartment and outside a separate building in the apartment complex). Furthermore, a significant “break in the action” occurred between the felony and misdemeanor offenses. Jackson allegedly assaulted the victim, then fled the scene. Some time later, an officer saw Jackson standing in another location and discovered facts leading to the criminal trespass, open container, and concealed weapon charges. There was no continuing course of conduct here.

Decided March 10, 2016

John W. Donnelly, for appellant.

Kenneth W. Mauldin, District Attorney, Jeffrey P. Kwiatkowski, Assistant District Attorney, for appellee.

Moreover, the State can establish each set of offenses without proving the other. Jackson notes that during the sexual assault prosecution, the State will likely offer evidence that he was located trespassing at the apartment complex, and a trial of the unrelated misdemeanor offenses might have included evidence that Officer Higginbotham spotted Jackson while responding to a possible rape report. But the State does not need to prove that the unrelated misdemeanors occurred to establish that Jackson committed sexual assault or made a false statement during the sexual assault investigation. And evidence that Jackson sexually assaulted the victim or made a false statement about the assault was not necessary to convict him of the other misdemeanors.

The misdemeanor and felony-related offenses in this case did not arise from the same conduct. Accordingly, the trial court properly denied Jackson’s plea in bar.

Judgment affirmed.

Doyle, C. J., and Boggs, J., concur.

        Richards v. State, 286 Ga. App. 580, 581 (649 SE2d 747) (2007) (citation and punctuation omitted).

       Daniel allowed Jackson to swab himself with sterile cotton swabs, which Daniel placed in an evidence container.

        Smith v. State, 324 Ga. App. 542, 544 (1) (751 SE2d 164) (2013) (citation, punctuation and emphasis omitted).

         Id. (citation and punctuation omitted).

        James v. State, 294 Ga. App. 656, 659 (670 SE2d 181) (2008).

       Id. (citation omitted).

       Id. (citation and punctuation omitted).

       994 A2d 765, 780 (D.C. App. 2010).

        Ontiveros v. State, 240 SW3d 369, 372 (Tex. App. 2007).

       See Cupp v. Murphy, 412 U. S. 291, 296 (93 SCt 2000, 36 LE2d 900) (1973) (given the existence of probable cause, the limited intrusion, and “the ready destructibility of the evidence,” police authorized to take fingernail scrapings from defendant without a warrant); Dardy v. State, 123 S3d 543, 549 (Ala. Crim. App. 2012) (exigent circumstances permitted warrantless swabbing of dried blood from defendant’s hands); State v. Parker, 282 P3d 643, 656 (Kan. App. 2012) (warrantless swabbing of defendant’s hands authorized by exigent circumstances).

       See Davis v. State, 304 Ga. App. 355, 358 (1) (a) (696 SE2d 381) (2010) (police had probable cause to arrest defendant, who matched description of shooter and was located near scene of shooting).

        James, supra.

       See id.; see also Kaliku, supra; Ontiveros, supra.

        Johns v. State, 319 Ga. App. 718, 718-719 (738 SE2d 304) (2013) (footnote omitted).

       Id. at 719.

       Id. (footnote omitted).

       Id.

       Id.

       See id. at 720 (double jeopardy did not prohibit multiple prosecutions where offenses at issue “were separate transactions, one of which had been completed prior to the other”); Boyette v. State, 172 Ga. App. 683, 684 (1) (324 SE2d 540) (1984) (traffic offenses and disorderly conduct involving defendant’s actions after traffic stop did not arise out of same transaction because “[t]he traffic offenses were completed at a different time and at different locations”).

       See State v. Stewart, 317 Ga. App. 82, 84-85 (729 SE2d 478) (2012) (double jeopardy not implicated by separate prosecutions of traffic offenses and obstruction charges; although evidence that defendant had been accused of various offenses might have been necessary in both trials, State was not required to prove that defendant committed traffic offenses to obtain conviction on obstruction charges, and vice versa).

       See Johns, supra at 720; Stewart, supra; Boyette, supra.