text:
    A11A1972.
    ROBERSON et al. v. LEONE.
    (726 SE2d 565)
   Dillard, Judge.

Following an automobile collision, Era Roberson and her husband, Justin Roberson (collectively “plaintiffs”), sued Robert Leone for personal-injury damages and sought uninsured motorist (“UM”) benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), which provided a policy for the vehicle Era Roberson was driving at the time of the accident. State Farm moved for summary judgment, arguing that the subject policy was a renewal policy, and thus, its UM coverage did not apply because the applicable UM limits of $25,000 were less than Leone’s liability policy limits of $100,000. Plaintiffs countered that the policy was a new policy, and therefore, because plaintiffs did not select the UM limits in writing as required by OCGA § 33-7-11 (a), State Farm was obligated to provide UM coverage equal to its liability limits of $1,000,000. The trial court granted summary judgment in State Farm’s favor, and plaintiffs appeal, arguing that genuine issues of fact exist as to whether the subject policy is new or a renewal. For the reasons set forth infra, we affirm.

At the outset, we note that “[s]ummary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” In addition, “[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.”

So viewed, the record shows that at least as early as July 1, 2001, State Farm issued a policy to Wendell Roberson Farms, a company owned and operated by Justin and Era Roberson, insuring numerous vehicles and farm equipment owned by the company. The policy, which was designated by the number F040295-E24-11, was renewed on November 24,2001, at which time the amount of UM coverage was increased from $15,000 for bodily injury per person to $25,000 per person. Thereafter, the policy was renewed on November 24 of each subsequent year through 2004.

In each of those years, the vehicle schedule forms, which provided the details of the policy’s coverage, indicated that the policy was issued to Wendell Roberson Farms, identified the same persons insured, and indicated the same amounts of coverage, including UM coverage. Additionally, in every version of the policy from 2001 through 2003, a representative of Wendell Roberson Farms executed a form acknowledging that it had selected the minimum limits of UM coverage. And although the premiums varied from year to year as vehicles were added or deleted from the policy, the only other notable change to the policy occurred in November 2004 when the policy number changed to F040295-11C and, noting this change, the declarations page stated that the current policy “Replaced policy number F040295-11B.”

On December 9, 2004, Era Roberson was driving in downtown Albany when her SUV, which was insured under the subject policy, was violently struck from behind by Leone’s large pickup truck. As a result of the accident, Roberson sustained serious injuries, and therefore, she and her husband filed a personal-injury action against Leone to recover damages. In their complaint, the plaintiffs also named State Farm as a defendant, claiming that State Farm was liable for Leone’s negligence to the extent that Leone was “underinsured or uninsured” for the accident.

Ultimately, Leone’s insurer paid the plaintiffs its policy limits of $100,000 as a settlement on Leone’s behalf. Thereafter, State Farm and Leone moved for summary judgment, arguing that the applicable UM limits of $25,000 per person, based on plaintiffs’ selection of same, were less than Leone’s liability limits of $100,000, and thus, UM coverage was not applicable. Plaintiffs countered, arguing that the subject policy was a new policy rather than a renewal and that because plaintiffs never selected the minimum UM limits for this new policy, State Farm’s UM limits were equal to its liability limits of $1,000,000 and were applicable. The trial court agreed with State Farm and granted summary judgment in its favor. This appeal follows.

Plaintiffs contend that the trial court erred in granting summary judgment in favor of State Farm, arguing that genuine issues of fact exist as to whether the subject policy is new or a renewal and, consequently, whether the policy’s UM limits were equal to its liability limits of $1,000,000, pursuant to OCGA § 33-7-11 (a). We disagree.

OCGA § 33-7-11 (a) (1) of the UM statute provides, in relevant part, “that a policy default amount for uninsured motorist benefits is the same as the policy’s liability limits [in this case $1,000,000] unless the insured affirmatively elects a lesser amount.” Importantly, the statute also provides that

[t]he [uninsured motorist] coverage required under paragraph (1) of this subsection shall not be applicable where any insured named in the policy shall reject the coverage in writing.... The coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to said insured by the same insurer. The amount of coverage need not be increased in a renewal policy from the amount shown on the declarations page for coverage existing prior to July 1, 2001. The amount of coverage need not be increased from the amounts shown on the declarations page on renewal once coverage is issued.

Thus, as both plaintiffs and State Farm acknowledge, this case turns on whether the policy issued by State Farm in November 2004 was a renewal of the original policy issued to Wendell Roberson Farms or a new policy, in which the minimum UM limits of $25,000 per person applied only if they were specifically selected by the plaintiffs in writing.

In Georgia, insurance contracts are “governed by the rules of construction applicable to other contracts, and words in the policy must be given their usual and common signification and customary meaning.” Moreover, it is well established that “[t]he hallmark of contract construction is to ascertain the intention of the parties.” And when the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, “the courts must expound the contract as made by the parties.” Furthermore, “[t]he proper construction of a contract, and whether the contract is ambiguous, are questions of law for the court to decide.”

Turning now to an examination of the subject policy, we first note that OCGA § 33-24-45 (b) (2) defines renewal as “the issuance and delivery by an insurer of a policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer and providing no less than the coverage contained in the superseded policy ... ,” And here, the subject policy met these requirements in that “[i]t was issued by the same insurer to supersede an existing policy and to extend the term of the existing policy beyond its policy period conditioned upon payment of a continuation premium according to the terms of the renewal document.”

Nevertheless, plaintiffs contend that the November 2004 policy was a new policy instead of a renewal, arguing that the change in the policy number from F040295-11B to F040295-11C, the change in the premium amount and vehicles insured, and the notation on the policy’s declarations page that the latter number “replaced” the former creates a genuine issue of fact, preclude summary judgment on this issue. However, the mere fact that the policy has a slightly different number does not render the subject policy a new rather than a renewal policy. Similarly, changes in the premium amounts and vehicles insured also do not create a new policy. And furthermore, given that the term “supersede” — a term used to define a renewal policy in OCGA § 33-24-45 (b) (2) — can mean “to take the place of (something set aside or abandoned),” we do not find that the policy’s use of the term “replaced” indicates that the policy is new.

Given the foregoing circumstances, we conclude that the trial court did not err in finding that the November 2004 policy was a renewal contract, and thus, we similarly find that the amount of coverage for UM benefits in the case sub judice is not the $1,000,000 liability limit, but the $25,000 per person limit that plaintiffs specifically previously selected in writing. Accordingly, the trial court did not err in granting summary judgment in favor of State Farm.

Judgment affirmed.

Mikell, P. J., and Boggs, J., concur.

Decided March 22, 2012

Reconsideration denied April 11, 2012

Lumley & Howell, Wendell K. Howell, for appellants.

Carlock, Copeland & Stair, Frederick M. Valz III, Megan E. Boyd, for appellee.

        Ellis v. Ingle, 306 Ga. App. 674, 675 (703 SE2d 104) (2010); see OCGA § 9-11-56 (c).

        Ellis, 306 Ga. App. at 675.

       Despite the fact that Leone’s insurer paid its liability limits to plaintiffs and received a Limited Liability UM release in return, Leone’s insurer also moved for summary judgment on the same grounds as State Farm in order to protect Leone from a potential subrogation claim by State Farm. For the same reasons, Leone also filed an appellee’s brief in this appeal.

        See State Farm Mut. Auto. Ins. Co. v. Adams, 288 Ga. 315, 316 (702 SE2d 898) (2010) (“[T]o determine whether a motor vehicle is underinsured, and thereby an uninsured motor vehicle, one must determine whether the injured party’s uninsured motorist coverage exceeds the sum of the tortfeasor’s full liability coverage minus payments of other claims (e.g., to other parties injured by the tortfeasor) or otherwise.” (emphasis supplied)); see also OCGA § 33-7-11 (b) (1) (D) (ii) (2000).

        Zurich Am. Ins. Co. v. Beasley, 293 Ga. App. 8, 10 (666 SE2d 83) (2008); see also OCGA § 33-7-11 (a) (1).

       OCGA§ 33-7-11 (a) (3) (emphasis supplied).

        Turner v. Gateway Ins. Co., 290 Ga. App. 737, 739 (660 SE2d 484) (2008) (punctuation omitted).

        Infinity Gen. Ins. Co. v. Litton, 308 Ga. App. 497, 500 (2) (707 SE2d 885) (2011) (punctuation omitted).

        Varsalona v. Auto-Owners Ins. Co., 281 Ga. App. 644, 646 (637 SE2d 64) (2006) (punctuation omitted).

        Clayton v. S. Gen. Ins. Co., 306 Ga. App. 394, 396 (702 SE2d 446) (2010) (punctuation omitted).

        See OCGA§ 33-24-45 (b) (2).

        Borders v. Global Ins. Co., 208 Ga. App. 480, 482 (2) (430 SE2d 854) (1993); see Beasley, 293 Ga. App. at 11 (holding that “the subsequent policies serve the purpose of a renewal contract, under the commonly understood meaning, by continuing the obligation to insure”).

        See Beasley, 293 Ga. App. at 11 (holding that a change in the policy number did not preclude a grant of summary judgment in favor of insurer that the subject policy was a renewal policy); Borders, 208 Ga. App. at 483 (2) (same).

        See Soufi v. Haygood, 282 Ga. App. 593, 596 (639 SE2d 395) (2006) (holding that addition of a new vehicle to insured’s policy did not create a new policy); Borders, 208 Ga. App. at 483 (2) (holding that the fact that policy insures different vehicles, that it contains fewer endorsements, or that it provides for a greater or lesser premium does not render it a new policy rather than a renewal).

       The Compact Oxford English Dictionary 1966 (2d ed. 1991).

        See Litton, 308 Ga. App. at 502 (2) (holding that because the subject policy was a renewal, the UM coverage limits were those previously selected by the insured rather than the policy’s liability limit); Beasley, 293 Ga. App. at 11 (same); Borders, 208 Ga. App. at 483-84 (2) (same).

        See Beasley, 293 Ga. App. at 11; Borders, 208 Ga. App. at 483-84 (2).


source: Caselaw Access Project

author: MlKELL, Presiding Judge.

license: Public Domain

text:
    A11A2154.
    DEMERE LANDING CONDOMINIUM OWNERS ASSOCIATION v. MATTHEWS et al.
    (726 SE2d 416)
   MlKELL, Presiding Judge.

This declaratory judgment action was filed by Joyce Matthews and James Porterfield, condominium owners and, thereby, members of the Demere Landing Condominium Owners Association (the Association), asking for a declaration that, in order to be counted toward the quorum, a member must be present for a meeting and those whose votes are to be cast by proxies do not count toward the quorum. The trial court agreed with plaintiffs/appellees, and the Association appealed.

The following facts are not disputed. On January 9, 2010, members of the Association gathered for a special meeting called for the purpose of adopting a special assessment to pay for new roofs on the nine buildings in Demere Landing. At the beginning of the meeting, appellee Porterfield objected to the lack of a quorum, but the chairperson overruled that objection. The members then adopted the special assessment; all the roofs in Demere Landing were subsequently replaced; and assessments were issued to each condominium owner. Matthews received a lien and foreclosure letter from counsel for the Association threatening to foreclose on her unit for nonpayment of the assessment. Both she and Porterfield have been notified that, until they pay the assessments, they may not have access to the amenities of the complex and may not vote at any meeting of the Association.

On May 21,2010, Matthews and Porterfield filed suit against the Association, challenging the special assessment on the basis of the lack of a quorum. Following the filing of its answer, the Association filed its motion to dismiss or for judgment on the pleadings. The appellees then filed their cross-motion for judgment on the pleadings and, on November 19, 2010, the trial court denied the motions, stating that, while it could resolve the legal issues in favor of the Association, an issue of fact remained regarding the establishment of a quorum, preventing a final decision. Thereafter, the parties stipulated to the remaining facts on the quorum issue and resubmitted the matter to the trial court to be treated as cross-motions for summary judgment. On May 23, 2011, the trial court granted partial summary judgment to Matthews and Porterfield on the quorum issue and certified its order as a final judgment pursuant to OCGA § 9-11-54 (b).

“When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.”

1. The Association’s first enumeration is that “proxies held by members of the Association must be counted toward quorum pursuant to Section 9 (F) of the [Association’s] bylaws.”

Section 4 of the bylaws, entitled “Membership,” provides that the membership of the Association “shall consist of all of the record owners of the condominiums.” Section 9 is entitled “Association Meetings,” and subsection F, entitled “Quorum,” provides that “[a]t all meetings, regular or special, the presence of members entitled to cast 51% or more of the total authorized votes shall constitute a quorum.”

Also pertinent to our consideration of this issue is Section 10, entitled “Voting by Members of the Association.” Subsection B provides that if a condominium is owned by more than one natural person, “the person entitled to cast the vote for the condominium shall be designated by a certificate signed by all of the record owners of the condominium and filed with the Secretary.” Also, if a condominium is owned by a corporation, “the person entitled to cast the vote for the condominium shall be designated by a certificate of appointment signed by the president or vice president of the corporation.” Subsection C, entitled “Proxy,” provides that “[v]otes may be cast in person or by proxy. Proxies must be filed with the Secretary at or before the appointed time of each meeting.”

OCGA § 44-3-103 states that “[u]nless the condominium instruments or bylaws provide otherwise, a quorum shall be deemed present throughout any meeting of the members of the association if persons entitled to cast more than one-third of the votes are present at the beginning of the meeting.” (Emphasis supplied.)

We agree with the trial court’s conclusion that this issue is controlled in favor of Matthews and Porterfield by Morton v. Talmadge. The issue in that case was whether, pursuant to a bylaw of Southern Mutual Insurance Company, the election of directors was void because a quorum was not present at the meeting. That bylaw provided that the company hold its annual meeting at the time and place designated and that “[fifteen members shall constitute a quorum for business.” The officers of the company urged that proxies should be counted toward a quorum, while the policyholders urged that 15 members had to be present in person to constitute a quorum. The Supreme Court concluded that

when the word “member” is used in the by-law, it must necessarily refer to the personal presence of a policyholder. The word “member” as used in the by-law means a policyholder who is personally present. . . . The word “member” refers to an individual, not to the written authority, the piece of paper, that authorizes one person to act for another.

We also note, as pointed out in Morton v. Talmadge, that, at common law, there was no voting by proxy and there could be no quorum by proxy. Because the General Assembly is deemed to be aware of the state of the law when passing legislation, we conclude that the passage óf OCGA § 44-3-103 was an affirmation of the common law rule requiring the presence of a person entitled to cast the vote in order to establish a quorum, unless the condominium instruments or bylaws provide otherwise.

Further supporting this conclusion is the fact that

[t]he condominium instruments, including the bylaws and the sales agreement, are a contract that governs the legal rights between the Association and unit owners. The condominium bylaws represent a form of private law making, in which individual owners come together and agree to subordinate some of their traditional individual ownership rights and privileges when they choose this type of ownership experience. As such, these documents should be strictly construed as they are written, giving the language its clear, simple, and unambiguous meaning.

Decided February 22, 2012

Reconsideration denied April 11, 2012.

Weissman, Nowack, Curry & Wilco, Jason A. LoMonaco, for appellant.

Therefore, we find this enumeration without merit.

2. The Association also argues, in its second enumeration, that Matthews and Porterfield lacked standing to bring this action because it was a derivative action.

A reading of the stipulation upon which this case was decided and the trial court’s order entered on it reveals that the issue of standing was not addressed by that order.

“As appellate courts, we are courts for the correction of errors of law made by the trial courts. . . . An error of law has as its basis a specific ruling made by the trial court.” No ruling having been made on this issue by the trial court, there is nothing in this regard for us to review.

3. This also applies to the third enumeration, in which the Association enumerates that the trial court erred in failing to dismiss Matthews and Porterfield’s request for declaratory relief because they lacked standing to bring it. The defense of lack of standing was not raised below, and no ruling on this specific issue was made by the trial court.

Judgment affirmed.

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

Donald C. Gibson, for appellee.

       The stipulation, in pertinent part, was that “the parties do agree that ¿/proxies were to be counted, then the number of individual members present at the January 9, 2010 meeting, when added to the number of proxies submitted at that meeting, would constitute a quorum.” (Emphasis in original.)

       When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

       (Citation omitted.) Woody’s Steaks v. Pastoria, 261 Ga. App. 815, 816 (584 SE2d 41) (2003).

       166 Ga. 620 (144 SE 111) (1928).

       Id. at 622.

       Id.

       Id. at 626-627.

        McPherson v. City of Dawson, 221 Ga. 861, 862 (148 SE2d 298) (1966). Accord In the Interest of H. E. B., 303 Ga. App. 895, 896 (695 SE2d 332) (2010).

       (Footnote omitted.) Bradford Square Condo. Assn. v. Miller, 258 Ga. App. 240, 245 (1) (a) (573 SE2d 405) (2002).

       (Citation omitted.) Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).

       Also, as pointed out by appellees, in its answer, the Association agreed that “the controversy involves an interpretation of Section 9 (F) of the Bylaws.”


author: PHIPPS, Presiding Judge.

text:
    A11A2308.
    BOATRIGHT v. GLYNN COUNTY SCHOOL DISTRICT et al.
    (726 SE2d 591)
   PHIPPS, Presiding Judge.

Harriet Whitener Boatright filed suit against the Glynn County School District and Michael Bull, in his individual capacity and as Superintendent of the Glynn County Board of Education (collectively, hereinafter, “Glynn County”), seeking to hold them liable for alleged violations of her due process and liberty rights in connection with their decision to terminate her employment as a paraprofessional. Glynn County filed a motion to dismiss or in the alternative for summary judgment, which the trial court granted. Boatright appeals. For the reasons set forth below, we affirm.

Because the trial court considered evidence outside Boatright’s complaint, we find that it decided the motion as one seeking summary judgment and therefore we apply the following standard of review: “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. . . .[] We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.”

So viewed, the record reflects that Boatright was employed by the Glynn County School District as a paraprofessional for nearly three years before she received notice of her termination. Though she was not given written notice of the reason for her termination, Boatright was fired shortly after a student encounter, in which she contends she was attacked by the student and physically injured. She requested a hearing before the county board of education concerning her termination, but was not afforded one prior to filing suit. Boatright was a classified employee and thus could be terminated only “for just cause,” pursuant to an employee handbook she had been given.

Boatright initially filed suit in federal court, which found that adequate state remedies were available and granted Glynn County’s motion to dismiss. Her allegation in federal court was that her termination violated her right to due process under the Fourteenth Amendment to the Constitution of the United States. Boatright then, in superior court, filed the instant suit against the same defendants. In her initial complaint, filed on January 31, 2007, she alleged that, in connection with the decision to terminate her, she was denied the right to procedural due process guaranteed by the Fourteenth Amendment to the Constitution of the United States. In her prayers for relief, she requested a jury trial, damages, punitive damages, a writ of mandamus to compel Glynn County to reinstate her and give her a hearing, and injunctive relief “as may [be] necessary to protect the plaintiffs rights.” During the pendency of that litigation, Boatright was given a hearing before the school board on June 19, 2007, and thereafter was reinstated as a paraprofessional in the local school system.

On June 27, 2007, Boatright filed an amendment of her complaint, which provided that she “hereby amends her complaint... by substituting in lieu thereof the Plaintiff’s Amended Complaint attached herewith.” In this amended complaint, Boatright sought relief for alleged violations of her rights under the Fourteenth (procedural due process) and Fifth (right to liberty) Amendments to the Constitution of the United States. In her prayers for relief, she specifically requested: a jury trial; general, special, and punitive damages; reinstatement and back pay; an order requiring Glynn County to expunge adverse documents from her personnel file; and attorney fees and expenses of litigation. Boatright did not restate any claim for mandamus or injunctive relief, and she dropped a state claim she asserts she had previously filed based on OCGA § 20-2-940.

Glynn County responded, in part, that suit was barred based on the doctrine of sovereign immunity, and filed a motion to dismiss or in the alternative a motion for summary judgment, which subsequent to Boatright’s hearing (before the board) and reinstatement, was renewed and amended. In its motion, Glynn County claimed that Boatright’s suit was barred by the doctrine of res judicata, was moot, and failed to state a claim for damages because adequate state remedies were available.

Finding that Boatright’s suit was barred by res judicata and/or the failure to state a claim for a violation of the Fourteenth Amendment because there were numerous adequate state remedies to enforce her procedural due process rights, the trial court granted Glynn County’s motion for summary judgment.

1. Boatright contends that the trial court erred in granting summary judgment to Glynn County on the ground that she failed to state a claim for a Fourteenth Amendment violation. We disagree.

The Supreme Court of Georgia has stated:

We interpret the due process clause under our State Constitution as providing the same procedural rights in public employment cases as the federal due process clause. Under both clauses, the state must give notice and an opportunity to be heard to a person deprived of a property interest. This Court has found that a public employee has a property interest in continued employment for due process purposes when a personnel manual provides that an employee can only be terminated for cause. Due process entitles the employee to a pre-termination hearing, but the employer’s failure to provide one is not a constitutional violation under the due process clause if the state provides a later procedural remedy. The focus of the procedural due process analysis is whether the state makes adequate procedures available — not whether the plaintiff takes advantage of those procedures and achieves a successful outcome.

“It is the state’s failure to provide adequate procedures to remedy the otherwise procedurally flawed deprivation of a protected interest that gives rise to a federal procedural due process claim.” The adequate state remedy analysis applies equally to a liberty interest due process claim as it does to a property interest due process claim.

In Joiner v. Glenn, a former chief of police was terminated from his position and filed suit against certain government officials after he was denied a “name-clearing hearing.” The plaintiff alleged that the defendants violated his liberty rights by denying him a name-clearing hearing, and he sought damages under the due process clause of the Georgia Constitution as well as under a state statute which provides that municipal officers can be held liable for official acts if done oppressively, maliciously, corruptly, or without authority of law. The Supreme Court of Georgia determined that the defendants were entitled to judgment on the pleadings because an adequate state remedy — a writ of mandamus — was a procedural remedy available which cured the government officials’ failure to provide a terminated employee with a name-clearing hearing.

Mandamus is an extraordinary remedy that can be granted only when the petitioner has a clear legal right to the relief sought and no other adequate remedy at law. . . . Mandamus will not issue to compel performance of a discretionary act unless the public official has grossly abused his or her discretion.

Concerning Boatright’s prayers for relief for reinstatement and back pay and for an order requiring Glynn County to expunge adverse documents from her personnel file, after the termination hearing, Boatright dropped her request for mandamus relief and the state claim she asserted she had previously filed based on OCGA § 20-2-940. Thus, the trial court properly ruled that Boatright failed to state a claim because adequate state remedies (which she had dropped) were available.

2. Boatright contends the trial court erred in holding that she was not entitled to monetary damages. Boatright asserts that “[t]his case is an action ex dilecto [sic], a tort action for a breach of duty arising from a contractual relationship,” and may be described as a “constitutional tort action.” Thus, she argues, her request for attorney fees under OCGA § 13-6-11 also applies to her case.

It is not evident, however, from Boatright’s complaint that her cause of action is “an action ex dilecto [sic], a tort action for a breach of duty arising from a contractual relationship,” because she did not so state either in her complaint or in her amended complaint, which was filed after Glynn County asserted a defense of sovereign immunity. Boatright’s attempt to “characterize this case as something other than a procedural due process claim rings hollow.” The amended complaint, which Boatright filed after the hearing, made it abundantly clear that she sought relief for Glynn County’s decision to deny her a termination hearing, in violation of her due process and liberty rights. Boatright dropped her alleged state claim and prayers for mandamus (and injunctive) relief, which left pending her constitutional claims for relief. Thus Boatright’s claims for relief spring only from Glynn County’s refusal to afford Boatright her rights to due process and liberty under the federal constitution — and nothing more.

“It is 42 USC § 1983 that constitutes the controlling federal authority on the right of a citizen to recover damages for an alleged deprivation of his federal constitutional rights under color of state law.” However, Boatright did not allege a § 1983 claim in her complaint. In fact, in her appellate brief she denied that her cause of action was based on 42 USC § 1983. Notwithstanding, we have held that a government employee had no § 1983 cause of action for damages for violation of her procedural due process rights when available state remedies were adequate, resulting in reinstatement and back pay. Because Boatright failed to state a claim for damages, the trial court properly granted summary judgment on her claims for damages. Having been awarded no damages or affirmative relief, Boatright is not entitled to attorney fees.

3. Boatright contends that the trial court erred in finding that, upon reinstatement to employment with the school district, she “was paid back wages, including health and retirement benefits.”

Concerning the trial court’s finding that Boatright was paid back wages, Boatright does not claim that she was not paid back wages. Boatright relies on an affidavit she executed wherein she stated (among other things) that the amount she was paid was insufficient; but she failed to state what amount she should have been paid. Concerning the trial court’s finding that Boatright received back retirement benefits, Boatright does not claim that she did not receive back retirement benefits. Boatright relies on the same affidavit she executed wherein she also stated that the back retirement benefits she received were not proper; but she failed to state what credit she should have received.

Concerning the trial court’s finding that Boatright was paid for back health benefits, the undisputed evidence showed that on January 24, 2008, Boatright had executed the aforementioned affidavit, pertinently stating that she had not been reimbursed for health plan coverage; but she did not state how much she should have been reimbursed. Two months later, on March 25, 2008, an employee with the law offices of Glynn County’s attorneys executed an affidavit stating (among other things) that she had delivered a check to Boatright as reimbursement for health insurance premiums paid by Boatright during the time she was out of work. Boatright does not refute this averment of the opposing side’s affidavit, but only claims that the existence of her previously executed affidavit and the employee’s shows an issue of fact exists.

In her prayers for relief in the amended complaint, Boatright did not state a claim for insufficient back pay or for insufficient credit toward retirement, and the trial court rendered no ruling on the sufficiency of the amounts paid. “Issues which have not been ruled on by the trial court may not be raised on appeal.” As to the court’s finding that back health benefits were paid, “[a] plaintiff cannot avoid summary judgment by pointing to contradictory evidence in the record on an issue that makes no difference to the legal analysis.”

Even if these claims for damages were requested in Boatright’s prayers for relief, this court will not address them for the reasons discussed in Divisions 1 and 2. The court’s judgment was not based upon stated facts for which there was no evidence. Boatright has failed to show that the trial court’s findings on these matters concerned genuine issues of material fact in the resolution of this case. Accordingly, the trial court properly granted summary judgment to Glynn County. I

Decided March 22, 2012

Reconsideration denied April 11, 2012

Walter D. Adams, Eugene Highsmith, for appellant.

Harben, Hartley & Hawkins, Phillip L. Hartley, Andrew H. Lakin, for appellees.

4. Based on our holding in Division l, because the trial court, in ruling that there were adequate state remedies, correctly granted summary judgment to Glynn County on Boatright’s Fourteenth and Fifth Amendment claims, we need not address Boatright’s remaining enumerated error that the trial court erred in its determination that her suit was barred by res judicata.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       OCGA§ 9-11-56 (c).

        Muhammad v. Allstate Ins. Co., 313 Ga. App. 531, 533 (2) (722 SE2d 136) (2012) (punctuation and footnote omitted).

        Joiner v. Glenn, 288 Ga. 208, 209 (702 SE2d 194) (2010) (citation and punctuation omitted), citing Camden County v. Haddock, 271 Ga. 664, 665 (1) (523 SE2d 291) (1999).

        Cotton v. Jackson, 216 F3d 1328, 1331 (11th Cir. 2000) (citations omitted), citing McKinney v. Pate, 20 F3d 1550,1557 (11th Cir. 1994) (enbanc); Jones v. Chatham County, 223 Ga. App. 455, 457 (3) (477 SE2d 889) (1996).

        Joiner, supra at 209-210.

       Id. at 208.

       Id. at 209, n. 2.

       Id. at 209-210.

        Pryor Organization v. Stewart, 274 Ga. 487, 487-488 (1) (554 SE2d 132) (2001) (citation omitted); OCGA § 9-6-20.

        Joiner, supra.

       See Southern LNG, Inc. v. MacGinnitie, 290 Ga. 204, 205 (719 SE2d 473) (2011) (in suit for declaratory judgment and for writ of mandamus, Court held: “We need not address whether sovereign immunity would act as a bar to appellant’s declaratory action, as it is clear that, if the declaratory action were barred by sovereign immunity (thus leaving appellant without an adequate legal remedy), appellant’s mandamus action would still remain viable.”).

        Joiner, supra at 210 (footnote omitted) (despite terminated employee’s suit seeking damages under a specified state statute in addition to the due process clause of the Georgia Constitution, the Court held that the dissent’s attempt to characterize the case as something other than a procedural due process claim “rings hollow”; the Court held that the complaint made it “abundantly clear” that the employee sought damages for the defendants’ decision to deny him a name-clearing hearing in violation of his due process rights; thus employee’s state claim “springs only from” defendants’ refusal to afford the employee his due process right —• “and nothing more”).

       Id.

        State Bd. of Ed. v. Drury, 263 Ga. 429, 433 (2) (437 SE2d 290) (1993); Russell v. Barrett, 296 Ga. App. 114, 121 (4) (673 SE2d 623) (2009).

       See Drury, supra.

        Atlanta City School District v. Dowling, 266 Ga. 217, 219 (466 SE2d 588) (1996); Turner v. Giles, 264 Ga. 812, 815 (4) (450 SE2d 421) (1994), cert. denied, 514 U. S. 1108 (115 SC 1959, 131 LE2d 851) (1995).

       See Dowling, supra.

        Benchmark Builders, Inc. v. Schultz, 289 Ga. 329, 330 (1) (711 SE2d 639) (2011) (“An award of attorney fees but no other damages or affirmative relief under a statute that authorizes an award of attorney fees to the ‘prevailing party’ is illegal and void, not merely erroneous and voidable.”) (citation and punctuation omitted).

        Brookfield Country Club v. St. James-Brookfield, LLC, 287 Ga. 408, 413 (3) (696 SE2d 663) (2010) (citation and punctuation omitted).

        Deen v. Stevens, 287 Ga. 597, 612 (3) (b) (698 SE2d 321) (2010) (citations omitted).

       Supra.

        Hardin v. Wright, 172 Ga. App. 644, 645 (323 SE2d 918) (1984) (“If the court’s judgment is based upon a stated fact for which there is no evidence, it should be reversed.”).

       See OCGA § 9-11-56 (c); Karp v. Western Life Ins. Co., 182 Ga. App. 693, 694 (356 SE2d 893) (1987) (fact issues not material to the resolution of case did not preclude grant of summary judgment).

        Muhammad, supra.

       Supra.

       See Conner v. Norman Sosebee Funeral Home, 303 Ga. App. 352, 357 (1) (b) (693 SE2d 534) (2010).


author: Miller, Judge.

text:
    A11A2367, A11A2368.
    LAUREL BAYE HEALTHCARE OF MACON, LLC v. NEUBAUER et al.; and vice versa.
    (726 SE2d 670)
   Miller, Judge.

Plaintiff/appellee/cross-appellant Brandy W. Neubauer, individually and next of kin, and as executor of the estate of Patricia Lowe (collectively, “Neubauer”), filed a medical malpractice lawsuit against Laurel Baye Healthcare of Macon, LLC (“Laurel Baye”) for the alleged wrongful death of Lowe. Laurel Baye filed an untimely answer. Over a year and a half later, and after engaging in various discovery efforts, Neubauer moved for default judgment against Laurel Baye. Laurel Baye responded, contending that Neubauer had waived her right to a default judgment. Laurel Baye also filed a motion to open default and paid costs. The trial court rejected Laurel Baye’s waiver argument, denied Laurel Baye’s motion to open defaulted entered default judgment against Laurel Baye.

In Case No. A11A2367, Laurel Baye appeals the trial court’s order, contending the trial court erred in finding that Neubauer did not waive her right to a default judgment, or in the alternative, in denying Laurel Baye’s motion to open default. In Case No. A11A2368, Neubauer maintains that the trial court properly granted her motion for default judgment, but nevertheless cross-appeals from the trial court’s ruling insofar as it found that Laurel Baye timely paid its costs as was required to open default. With respect to Case No. A11A2367, we conclude that Neubauer waived her right to default and therefore reverse the trial court’s entry of default judgment against Laurel Baye and remand the case for further proceedings. With respect to Case No. A11A2368, we dismiss Neubauer’s cross-appeal in light of our disposition in Case No. A11A2367.

We review the trial court’s entry of default judgment for an abuse of discretion. See Strickland v. Leake, 311 Ga. App. 298, 300 (715 SE2d 676) (2011) (physical precedent only). “Where it is apparent that a trial court’s judgment rests on an erroneous legal theory, an appellate court cannot affirm. When the issue is a question of law, we owe no deference to the trial court’s ruling and apply the plain legal error standard of review.” (Citation, punctuation and footnote omitted.) Smith v. Carter, 305 Ga. App. 479, 481 (2) (699 SE2d 796) (2010).

The record reflects that on April 2, 2009, Neubauer filed her medical malpractice lawsuit against Laurel Baye and two other defendants. Laurel Baye was served through its registered agents on both April 15, 2009, and April 17, 2009. On May 15, 2009, Laurel Baye and Neubauer jointly filed a consent stipulation extending the time for Laurel Baye to file its answer through and including June 1,2009. Laurel Baye did not file its answer until June 29, 2009. Neubauer filed a motion for default judgment on January 7, 2011. Laurel Baye responded on February 14, 2011, contending that Neubauer was not entitled to default judgment because she had waived her right to seek one. On February 17,2011, Laurel Baye filed a motion to open default, and approximately one week later, Laurel Baye paid costs required to open default. Following oral argument from the parties on their respective motions, the trial court granted Neubauer’s motion for default judgment and denied Laurel Baye’s motion to open default. The trial court specifically found that Laurel Baye was in default, that Neubauer did not waive her right to seek a default judgment, and that, with the exception of paying costs, Laurel Baye failed to meet all of the conditions precedent required to open default. The trial court issued a certificate of immediate review, and this Court granted Laurel Baye’s application for interlocutory appeal.

Case No. A11A2367

1. Laurel Baye argues on appeal that Neubauer implicitly waived her right to default judgment, and that the trial court erred by finding otherwise. We agree.

The statutory right to judgment following default is not an indefeasible right, but may or may not be asserted, and may be waived by a plaintiff by proceeding with the action without taking advantage of his right to judgment in a timely and proper manner. Such waiver need not be expressed, but may be implied in law by conduct or circumstances inconsistent with the right to judgment.

(Citations and punctuation omitted.) Ewing v. Johnston, 175 Ga. App. 760, 764 (1) (334SE2d703) (1985). We have held that a plaintiff waived his right to seek a default judgment where the following indicia of waiver were present: allowing the defaulting party to plead, extending the time to plead, joining issue upon the pleadings, going to trial on the merits, announcing ready for trial and introducing evidence on the merits, and failing to move for a default judgment or otherwise raise any issue of default before the appeal. Id. at 763-765 (1); see also Ward v. Swartz, 285 Ga. App. 788, 790 (2) (648 SE2d 114) (2007) (concluding that the plaintiff waived any right she had to default judgment where she actively joined issue with the defendant’s motions to compel discovery and to dismiss, affirmatively moved to have the case put on the jury trial calendar after the defendant moved to dismiss, and otherwise failed to ever raise the issue of default in the trial court); Laviano v. Travelers Ins. Co., 276 Ga. App. 611, 613 (624 SE2d 189) (2005) (holding that the plaintiff waived his right to default judgment by joining issue upon the pleadings, going to trial on the merits, announcing ready for trial, and introducing evidence on the merits). More recently, in Davis v. Wallace, 310 Ga. App. 340, 344 (1) (713 SE2d 446) (2011), this Court held that the plaintiff waived his right to a default judgment by conducting discovery, responding to motions with evidence in support of the merits of his case, announcing ready and requesting that the case be put on the trial calendar, and failing to move for default judgment before summary judgment was granted to the defendants. The plaintiff’s actions in Davis “were sufficient to constitute an implied waiver of default; [the plaintiff] waited until the case had effectively been litigated before seeking a default judgment.” (Punctuation omitted.) Id.

Here, we likewise conclude that Neubauer’s actions in this case were sufficient to constitute an implied waiver of her right to default judgment. The record shows that Laurel Baye was served with the lawsuit on April 15, 2009, and thus, Laurel Baye’s answer was originally due May 15, 2009. See OCGA§ 9-11-12 (a) (“A defendant shall serve his answer within 30 days after the service of the summons and complaint upon him[.]”) (punctuation omitted). Instead of filing an answer on May 15, 2009, however, Laurel Baye and Neubauer jointly filed a consent stipulation extending the time for filing Laurel Baye’s answer through and including June 1,2009. See OCGA § 9-11-6 (b) (procedures for extensions of time). Laurel Baye nevertheless failed to file an answer or other responsive pleading by June 1, 2009; thus, the case automatically became in default by operation of law. See OCGA § 9-11-55 (a); see also Metropolitan Deluxe, Inc. v. Bradsher, 258 Ga. App. 265, 267 (2) (573 SE2d 504) (2002); Roberson v. Gnann, 235 Ga. App. 112, 114 (2) (508 SE2d 480) (1998). Although Laurel Baye could have opened default as a matter of right by filing an answer and paying costs within 15 days, this was not done. See Bradsher, supra, 258 Ga. App. at 267 (2). Rather, Laurel Baye did not file its answer until June 29, 2009, and did not pay costs until February 2011.

Notwithstanding Laurel Baye’s untimely answer and failure to open default as a matter of right, however, it was not until over a year and a half later, on January 7, 2011, that Neubauer finally filed a motion for default judgment. Contra Roberson, supra, 235 Ga. App. at 113, 115 (3) (concluding plaintiff did not waive his right to assert motion for default judgment where even though the plaintiff consistently gave the defendant an opportunity to file his answer before seeking default judgment, the plaintiff still ultimately moved for default judgment before the defendant filed his untimely answer). Moreover, with the exception of Neubauer’s initial discovery requests to Laurel Baye, all of her subsequent discovery actions were taken after she already knew that Laurel Baye could no longer successfully open default as a matter of right and had not filed a motion to open default. Contra Bradsher, supra, 258 Ga. App. at 267-268 (3) (upholding trial court’s finding that plaintiff did not waive her right to default judgment where her efforts to obtain discovery supplementation were taken before she knew whether the defendant would successfully open the default). Notably, on February 18, 2010, Neubauer initiated her good faith efforts to obtain Laurel Baye’s discovery responses, and on April 15, 2010, she moved to compel its responses. Later in April 2010, and again in July 2010, Neubauer joined Laurel Baye and the other named defendants in filing motions to extend the time in which to complete discovery. In this regard, Neubauer’s actions in pursuing the lawsuit were entirely inconsistent with an intent to raise or rely upon a default judgment.

Thus, by allowing Laurel Baye to file its untimely answer and then waiting over a year and a half before moving for, or otherwise raising, the issue of default, while in the meantime engaging in efforts to compel discovery responses and joining with Laurel Baye in filing motions to extend the completion of discovery, Neubauer waived her right to seek a default judgment. We therefore reverse the trial court’s entry of a default judgment against Laurel Baye and remand this case for further proceedings.

Case No. A11A2368

2. Neubauer’s cross-appeal challenges the trial court’s finding that Laurel Baye timely paid costs as one of the conditions precedent to opening default under OCGA § 9-11-55 (b). In light of our disposition in Case No. A11A2367, however, Neubauer’s cross-appeal is rendered moot. Accordingly, Case No. A11A2368 is hereby dismissed.

Judgment reversed and case remanded in Case No. A11A2367. Appeal dismissed in Case No. A11A2368.

Mikell, P. J., and Boggs, J., concur.

Decided March 26, 2012

Reconsideration denied April 11, 2012

Pierce & Dunkelberger, J. Wayne Pierce, for appellant.

Reynolds, Horne & Survant, W. Carl Reynolds, Bradley J. Survant, Hall, Booth, Smith & Slover, W. Brent Hyde, Charles A. Dorminy, for appellees.

       We also note that “[w]henever possible cases should be decided on their merits for default judgment is not favored in law.” (Citations and punctuation omitted.) Ewing, supra, 175 Ga. App. at 764 (1).

       See OCGA § 9-11-55 (a) (“The default may be opened as a matter of right by the filing of [the answer] within 15 days of the day of default, upon the payment of costs. If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default].]”) (punctuation omitted).

       Neubauer asserts that she had earlier raised the issue of default in a February 18, 2010, letter to Laurel Baye. This letter pertinently stated, “As Laurel Baye was served on April 23, 2009, the answer to the Complaint was due on May 22, 2009. We are in receipt of Laurel Baye Health Care’s Answer to our Complaint dated June 26, 2009.” We fail to see how this letter raised the issue of default. Notably, the record reflects that Neuhauer’s letter was inaccurate not only with respect to the date of service of the complaint, but also with respect to the parties’ stipulated due date of Laurel Baye’s answer. Moreover, beyond the above-cited language, the letter otherwise served as Neuhauer’s good faith effort to obtain Laurel Baye’s discovery responses, as she was required to do under Uniform Superior Court Rule 6.4 (B) before filing a motion to compel.

       In light of our resolution of the waiver issue, we need not address Laurel Baye’s alternative enumeration of error challenging the denial of its motion to open default.


author: Andrews, Judge.

text:
    A12A0133.
    SHEHADEH et al. v. ALEXANDER.
    (727 SE2d 227)
   Andrews, Judge.

After obtaining a judgment from the courts of Dubai, United Arab Emirates against Abdel Karim Shehadeh in the amount of $500,000, MarkAlexander filed a notice of that judgment in Whitfield County Superior Court. After an evidentiary hearing, the trial court recognized the Dubai judgment under the Georgia Foreign Money Judgments Recognition Act, OCGA § 9-12-110 et seq. On appeal, Shehadeh argues inter alia that the trial court erred when it recognized the Dubai judgment because Alexander failed to show that the Dubai courts recognize judgments of courts of the United States and the several states. See OCGA § 9-12-114 (10). We agree and reverse.

The relevant facts are not in dispute. In 2005, Shehadeh, Alexander, Ahmad Qassab, and one other person executed an operating agreement concerning Hydrajet Technology, LLC, a Georgia company. The operating agreement specified that any disputes “arising out of or in connection with or relating to this Agreement or any breach or alleged breach hereof” would be submitted to arbitration in Dalton, Georgia.

On September 11, 2008, Shehadeh and Alexander entered into an agreement of their own concerning Shehadeh’s purchase of Alexander’s Hydrajet shares. Litigation concerning this agreement eventually resulted in a judgment by the Dubai Court of Appeals in favor of Alexander in the amount of $500,000 plus fees.

In October 2010, Alexander filed a notice of the Dubai judgment in Whitfield County Superior Court. Attached to the notice was counsel’s affidavit concerning the judgment of the Dubai Court of Appeals. In his objections to the notice, Shehadeh asserted that the foreign judgment was unenforceable as contrary to the operating agreement’s arbitration clause and because Alexander had made no showing of reciprocity of judgments between the Dubai and United States court systems. In April 2011, Alexander filed an amended notice of the Dubai judgment concerning the affirmance of the Dubai Court of Appeals by the Dubai Court of Cassation. No revised affidavit was filed, however. After an evidentiary hearing, the trial court domesticated the Dubai judgment. Shehadeh’s motion for reconsideration was denied.

1. The Georgia Foreign Money Judgments Recognition Act, OCGA § 9-12-110 et seq., applies to foreign powers rather than so-called “sister states” of the United States. Kronitz v. Fifth Ave. Dance Studio, 242 Ga. 398, 399 (249 SE2d 80) (1978) (a “foreign state” is one other than the United States or any of its states or territories). The Act’s general provision is that a foreign money judgment is “enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit.” OCGA § 9-12-113. OCGA § 9-12-114 provides, however, that a money judgment from a foreign state “shall not be recognized if” any one of ten circumstances exist:

(1) The judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
(2) The foreign court did not have personal jurisdiction over the defendant;
(3) The foreign court did not have jurisdiction over the subject matter;
(4) The defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend;
(5) The judgment was obtained by fraud;
(6) The cause of action on which the judgment is based is repugnant to the public policy of this state;
(7) The judgment conflicts with another final and conclusive judgment;
(8) The proceedings in the foreign court were contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court;
(9) In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action; or
(10) The party seeking to enforce the judgment fails to demonstrate that judgments of courts of the United States and, of states thereof oí the same type and based on substantially similar jurisdictional grounds are recognized and enforced in the courts of the foreign state.

(Emphasis supplied.)

As Shehadeh repeatedly pointed out below, Alexander is the “party seeking to enforce the judgment” of the Dubai courts but has not provided any evidence that “judgments of courts of the United States and of states thereof of the same type and based on substantially similar jurisdictional grounds are recognized and enforced” in Dubai. OCGA § 9-12-114 (10). Alexander has cited no part of the record in support of his assertion that such evidence was before the trial court, and we cannot agree that the trial court could look to Dubai law to resolve this matter of fact.

Counsel admitted at the hearing that he was not “proficient” or “knowledgeable” concerning Dubai law, although he went on to offer testimony concerning the Dubai courts’ impartiality. Even assuming that this latter testimony evidence would have been sufficient under OCGA § 9-12-114 (1), however, a party seeking to domesticate a judgment of a foreign state may not assume the validity of that judgment, but must “demonstrate,” which means making an affirmative evidentiary showing, that the judgment is a product of a legal system that both recognizes and enforces the judgments of the federal and state courts of the United States. OCGA § 9-12-114 (10); see Eurodis Electron PLC v. Unicomp, Inc., 2006 U. S. Dist. LEXIS 26585 at **10-13 (N.D. Ga. 2006) (British solicitor’s affidavit that United States judgments “would be recognized and enforced in the courts of England and Wales” was sufficient for purposes of OCGA § 9-12-114 (10)); see also Environmental Waste Reductions v. Legal Environmental Assistance Foundation, 216 Ga. App. 699, 702-703 (3) (455 SE2d 393) (1995) (physical precedent only) (reversing a superior court when it failed to defer to an administrative decision based on a party’s provision of documentary evidence to satisfy OCGA § 12-8-24 (g)’s requirement that it “demonstrate” participation in an approved waste plan).

Alexander has thus failed to carry his burden of proof on a subj ect that OCGA§ 9-12-114 makes prerequisite to the domestication of the Dubai judgment. It follows that the trial court erred when it domesticated that judgment.

2. In light of the above, we need not reach Shehadeh’s additional contentions.

Judgment reversed.

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

Decided April 11, 2012

Coppedge & Evans, Warren N. Coppedge, Jr., Joseph B. Evans, Stephen Michmerhuizen, for appellants.

Robert G. McCurry, Charles W. Smitherman III, for appellee.

       We granted Qassab’s motion to intervene in this appeal.


text:
    A12A0177.
    A12A0708, A12A0709.
    STUBBS v. THE STATE. HASKELL v. THE STATE (two cases).
    (727 SE2d 229)
   Andrews, Judge.

On appeal in Case Number A12A0177 from his conviction for armed robbery, aggravated assault, and possession of a firearm during the commission of a crime, Derrick Stubbs argues that the trial court erred when it denied his motion for mistrial concerning threats made to a witness. On appeal in Case Numbers A12A0708 and A12A0709 from his conviction arising from the same events, Torrence Haskell argues that trial counsel was ineffective when she failed to object to the State’s argument that no person in the circuit had ever been convicted and later proven innocent. We affirm in all three cases.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that on the early morning of July 21, 2008, Stubbs and three other people drove to a Sprint convenience store in Thomson. While Patterson and Dickerson waited outside, Stubbs and Haskell ran into the store, where two clerks were working. One of the men had a gun. The armed man jumped over the counter, demanded that the registers be opened, and took cash from both registers. One of the clerks was told to get on the ground and was struck on the head; the other was ordered from the outside of the store, where she had been cleaning, back inside at gunpoint. The robbers also took cartons of Newport cigarettes. Both clerks identified Stubbs and Haskell as their assailants. A store customer witnessed the robbery. Stubbs paid Dickerson $100 from the proceeds of this robbery.

Two days later, the same group of men robbed a Circle K convenience store in Thomson. A clerk identified Stubbs and Haskell as the men who entered the store with a gun, announced a robbery, and took money and travelers checks from three customers, as well as Newport cigarettes from the stock. A fourth customer was held up as well, but he had no money in his possession. Stubbs paid Dickerson $75 from the proceeds of this robbery.

Stubbs and Haskell were both charged with two counts of armed robbery, one count of aggravated assault, and three counts of possession of a firearm concerning the Sprint robbery. Haskell was also charged with four counts of armed robbery, one count of attempted armed robbery, and five counts of possession of a firearm concerning the Circle K robbery. A jury found both men guilty on all counts.

Case No. A12A0177

1. The evidence outlined above sufficed to sustain Stubbs’s conviction. See OCGA §§ 16-8-41 (defining armed robbery), 16-5-21 (defining aggravated assault), 16-11-106 (defining possession of a firearm during the commission of a felony); Jackson.

2. The record shows that when the State asked one of its own witnesses whether she had “been threatened in any way,” the witness responded: “No, I don’t feel like I have been threatened in any way. But anytime a threat has been made and it’s towards me and my family member [s], yes, I feel threatened.” After Stubbs’s counsel objected, the jury was excused. Stubbs and Haskell both moved for a mistrial.

After an extended discussion, Stubbs requested a curative instruction. The trial court offered to instruct the jury that any testimony concerning threats made by the defendants would be admitted solely for impeachment purposes. Stubbs’s counsel responded: “That’s good.” The trial court then instructed the jury as follows concerning the State’s line of questioning:

[T]he District Attorney... sought to get into that [subject] by asking this witness if she felt threatened in any way. Now, he did not mean to infer and you are not to consider that the defendants in this case made any threats, authorized any threats, directed any threats, or anything like that. Any evidence of that nature would be solely and limited [sic] to explaining why this witness may have given a statement earlier different than what she’s testifying to today. So you are to consider that evidence only for that purpose and no other purpose. Does everyone understand? Is there anyone who feels they cannot do that? If so, would you please raise your hands?

No juror responded, neither Stubbs nor Haskell objected, and the examination of the witness went forward.

It is a longstanding rule in Georgia that in order to preserve the issue for appellate review after curative instructions are given the motion for mistrial must be renewed. If the trial court’s curative instructions are not sufficient, defendant should seek additional relief. Failure to do so waives appellate review of the matter, including complaints about improper comments in closing argument.

(Punctuation omitted.) Garcia v. State, 271 Ga. App. 794, 796 (2) (611 SE2d 92) (2005). Stubbs approved the curative instruction in substance before it was given and did not object afterward. It follows that no error concerning the subject of the instruction — that is, the import of any testimony concerning threats — has been presented for our review. Id. at 797 (2).

Case Nos. A12A0708 and A12A0709

3. The evidence outlined above also sufficed to sustain Haskell’s conviction. See OCGA §§ 16-8-41 (defining armed robbery), 16-5-21 (defining aggravated assault), 16-11-106 (defining possession of a firearm during the commission of a felony), 16-4-6 (b) (defining attempt to commit a felony); McKinney v. State, 274 Ga. App. 32, 38 (3) (619 SE2d 299) (2005) (possession of firearm charge did not merge with attempted armed robbery charge because possession of a firearm is defined as a distinct crime under OCGA § 16-11-106); Jackson.

4. Haskell’s sole argument on appeal is that counsel was ineffective when she failed to object to a portion of the prosecutor’s closing argument. We disagree.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Suggs v. State, 272 Ga. 85, 87-88 (4) (526 SE2d 347) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The question of ineffectiveness is a mixed one of both law and fact: “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs, 272 Ga. at 88 (4).

The record shows that in the course of closing argument, counsel mentioned that some convictions based on positive identifications have later been found to have been invalid on the basis of physical evidence such that “we find out ten or twenty years later, wrong person, we identified the wrong person.” In his own closing, the prosecutor said the following:

[Defense counsel] mentioned about folks that had been wrongly convicted and later released. Folks, I’m proud to tell you that that’s never happened — as far as anybody wrongfully convicted and released because of newfound evidence, that has never happened in the history of this circuit. But it sure makes a good story, doesn’t it?

At the hearing on the motion for new trial, counsel testified that she chose not to object to or move for a mistrial concerning the prosecutor’s remarks because the prosecutor was responding on a subject she herself had introduced, because she believed the prosecutor’s remark to be true, because it concerned argument rather than evidence, and because she did not think that an objection or a motion for mistrial would have helped her client under the circumstances.

As the trial court held when it denied the motion for new trial,

[w]hen no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial.

Todd v. State, 261 Ga. 766, 767 (2) (410 SE2d 725) (1991). In the context of a claim for ineffective assistance, then, a defendant would be required to show a reasonable probability that a trial court would have granted a motion for mistrial concerning the argument at issue.

Even assuming that the prosecutor “should not have compared [this] defendant to others in his experience,” the subject of wrongful convictions in other cases “was brought up by the defendant.” Todd, 261 Ga. at 769 (3). Like the Supreme Court of Georgia in Todd, then, “ [w] e do not think the jury was impressed either way by this colloquy, and find any error harmless.” Id. It follows that the trial court would not have abused its discretion in denying a motion for mistrial had one been made and did not err when it credited counsel’s defense of her decision not to object as strategic. See Raymond v. State, 298 Ga. App. 549, 550-551 (1) (a) (680 SE2d 598) (2009) (failure to object to portion of State’s opening argument was strategically justified and could not amount to ineffective assistance); Fennell v. State, 271 Ga. App. 797, 802-803 (6) (g) (611 SE2d 96) (2005).

Decided April 11, 2012.

Edgar A. Callaway, Jr., for Stubbs.

Charles A. Jones, Jr., for Haskell.

Dennis C. Sanders, District Attorney, Durwood R. Davis, Kevin R. Majeska, Assistant District Attorneys, for appellee.

Judgments affirmed.

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


text:
    A12A0334.
    COLVIN v. CHRISLEY et al.
    (727 SE2d 232)
   MlKELL, Presiding Judge.

Two lawsuits were filed in Fulton County Superior Court after a dispute arose over allegations that Michael Chrisley misappropriated funds related to a development project, and that the company of which he was part owner failed to pay a construction company for work performed. The cases were consolidated and, later, voluntarily dismissed by all parties. Remaining on appeal is the trial court’s imposition of sanctions and award of attorney fees against William L. Colvin, the lawyer for the plaintiffs in the underlying actions. Colvin appeals, raising two enumerations of error.

1. The first enumeration challenges the award under OCGA § 9-11-37 (d) (1), which provides for an award of attorney fees if a party fails to attend a properly noticed deposition or fails to respond to discovery requests. This enumeration argues, inter alia, that the trial court abused its discretion by awarding attorney fees to a party and against the lawyer for the opposing party. At a hearing on February 17,2011, in Fulton County Superior Court, however, Colvin waived any objection to the imposition of sanctions. Colvin stated, under oath, ‘You’re going to hold me or reward sanctions, then so be it.” Colvin also stated under oath, “I’ll accept whatever this Court rules as far as whether it has — it can issue sanctions.”

Decided April 11, 2012.

William L. Colvin, pro se.

Hayden R. Pace, for appellees.

2. The second enumeration of error objects to the imposition of sanctions under OCGA§ 9-15-14 (e) on the ground that the sanctions are premature given that they were requested prior to the parties’ mutual dismissal of the underlying action. The appellant is incorrect on this point, as the statute provides that attorney fees and expenses “may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action.” The trial court’s order, however, did not specify under which Code section it awarded sanctions.

The appellant also argues that the amount of the sanctions, $7,500, was not properly proven. The appellant is correct that only attorney fees relating to the discovery violations are compensable. However, Chrisley proved total attorney fees of approximately $23,000. The trial court at the hearing recognized that only attorney fees related to the discovery could be awarded. The award made by the trial court is within the range of the evidence, and therefore, the order appealed from is affirmed.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

       See Moses v. Pennebaker, 312 Ga. App. 623, 630 (3) (b), n. 25 (719 SE2d 521) (2011) (litigant who conceded liability at trial may not later claim error); Ahmed v. Clark, 301 Ga. App. 426, 428 (688 SE2d 361) (2009) (party may not acquiesce in trial court’s ruling and later complain about ruling on appeal).

       (Emphasis supplied.) OCGA § 9-15-14 (e). Accord Forest Lake Home Owners Assn. v. Green Indus., 218 Ga. App. 890, 894 (2) (463 SE2d 723) (1995) (“Remedies under OCGA § 9-15-14 are now available not only after final disposition of an action but during the course of litigation”); First Union Nat. Bank of Ga. v. Cook, 223 Ga. App. 374, 380 (9) (477 SE2d 649) (1996) (motion seeking fees under OCGA § 9-15-14 (e) not premature as such motions may he filed at any time), overruled in part on other grounds, Golden Peanut Co. v. Bass, 249 Ga. App. 224, 233-234 (2) (547 SE2d 637) (2001) (whole court).

       See Spencer v. Dupree, 150 Ga. App. 474, 480 (8) (258 SE2d 229) (1979) (trial court may make fee award within the range of the evidence, even if that amount differs from amount claimed).


author: Adams, Judge.

text:
    A11A1601.
    COCHRAN v. THE STATE.
    (727 SE2d 125)
   Adams, Judge.

Anthony Brian Cochran appeals, pro se, from the denial of his “Motion to Correct Clerical Error on Final Disposition,” which asserted a clerical error in connection with his sentence.

Cochran was arrested and incarcerated on July 29, 2008 on charges of burglary, theft by receiving stolen property, and possession of methamphetamine. Cochran pled guilty to the charges on July 27, 2009 and was sentenced to ten years. The discussion in court regarding Cochran’s sentence was as follows:

Court: Mr. Cochran, your sentence is ten to serve, credit pursuant to the jailer’s affidavit, and that’ll take care of you. Deputy, how many days has Mr. Cochran been in jail?
Deputy: Twenty-three days, ma’am.
Court: Twenty-three days?
Deputy: Yes, ma’am.
Clerk: He came from the state system.
Court: You came out of the state system?
Cochran: I’ve been locked up since July the 29th of last year.
Court: I’m not going to write anything on here because you’ve only been with us on [sic] 23 days and that might mess you up real bad and I wouldn’t want to do that. One day you’ll get out.

(Emphasis supplied.) Despite the trial judge’s statement about not writing “anything” in connection to Cochran’s time served, the written sentence form contained a handwritten notation stating he should receive “credit pursuant to jailers affidavit]” in connection with his ten-year sentence. The referenced jailer’s affidavit was signed by the “Commander — Detention, Records and ID” in Cobb County (the “Affidavit”) and reflected that Cochran entered Cobb County custody on July 29, 2008 and was held until December 30, 2008, when he was “rel’d to Coastal.” The Affidavit further noted that Cochran came back into the county’s custody from Jackson State Prison on July 2, 2009 and remained there until his sentencing.

After sentencing, Cochran received a notice from the Department of Corrections (the “DOC”) reflecting his ten-year sentence, with adjustments only for the two periods of county confinement reflected on the Affidavit. The DOC gave him no credit for the time he served in state custody in between his two county detentions, a period of approximately seven months. Cochran subsequently filed a motion for modification of his sentence asking for a correction of the clerical error that “omitted credit for the time served.” The trial court denied the motion, noting that the DOC, and not the trial court, had the duty of determining and granting credit for days spent in confinement prior to sentencing. Cochran then filed his “Motion to Correct Clerical Error on Final Disposition,” which the trial court summarily denied.

On appeal, Cochran argues that the notation, whether error by the clerk or the judge, does not accurately reflect the trial court’s stated intent not to interfere with his receipt of credit for the full amount of time served and further argues that the notation apparently caused the DOC to limit his credit for time served to only his county confinement. Cochran thus asks that his sentence be modified to remove the notation, which will enable the DOC to grant him the full credit to which he is entitled.

The State does not dispute that Cochran is entitled to credit for the full time he served prior to sentencing in connection with the charges in this case. Indeed, “[t]he clear policy behind OCGA §§ 17-10-9 through 17-10-12 is that time spent in incarceration under the authority of this state or a political subdivision thereof should count toward the time which a prisoner must serve.” (Punctuation andfootnote omitted.) Johnson v. State, 248 Ga. App. 454, 455 (3) (546 SE2d 562) (2001). Thus, under OCGA§ 17-10-11 (a),

[ejach person convicted of a crime in this state shall be given full credit for each day spent in confinement awaiting trial and for each day spent in confinement, in connection with and resulting from a court order entered in the criminal proceedings for which sentence was imposed, in any institution or facility for treatment or examination of a physical or mental disability.

And the State does not contend that Cochran was not in custody on the charges in this case during the intervening seven months between the county detentions. Instead, the State argues, and the trial court found, that Cochran must seek relief from the DOC.

The State is correct that under OCGA § 17-10-12, the amount of credit for time spent in confinement while awaiting trial is to be computed by the convict’s pre-sentence custodian, and the DOC has the duty to award the credit for time served based upon that calculation. Anderson v. State, 290 Ga. App. 890, 891 (660 SE2d 876) (2008). Because trial courts are not involved in such calculations, a defendant “aggrieved by the calculations in awarding credit” generally must seek relief from the DOC. Id. And “[t]he remedy for dissatisfaction with that relief would be in a mandamus or injunction action against the Commissioner of the Department of Corrections.” (Citations and punctuation omitted.) Id. An exception exists, however, “where the trial court in its written sentencing order gives gratuitous misdirection to the correctional custodians” because a trial judge has no authority to interfere with the administrative duties of the correctional custodians and the DOC to determine and award credit for time served. (Citation omitted.) Cutter v. State, 275 Ga. App. 888, 890-891 (2) (622 SE2d 96) (2005). See also Sanford v. State, 251 Ga. App. 190, 191 (553 SE2d 854) (2001). The remedy in such a case is to “remand the case to the trial court to strike the offending language from the sentencing order.” (Citation omitted.) Cutter v. State, 275 Ga. App. at 891. See also Johnson v. State, 248 Ga. App. at 455 (3).

Decided January 31, 2012

Reconsideration denied April 12, 2012

Anthony B. Cochran, pro se.

Patrick H. Head, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

Because the DOC appears to have relied upon the trial court’s handwritten notation in calculating Cochran’s sentencing credit, we find that the notation was a gratuitous misdirection that had the effect of improperly taking credit away from him. Johnson v. State, 248 Ga. App. at 455 (3) (trial court has no authority to take sentencing credit away). As Cochran notes, the notation has effectively resulted in the DOC’s administration of not a ten-year sentence, but rather a sentence in excess of ten and one-half years. Accordingly, we reverse the trial court’s denial of Cochran’s motion and remand the case with direction to strike the words “credit pursuant to jailers aff.” from Cochran’s sentence.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Blackwell, J., concur.


author:
BARNES, Presiding Judge.
      BLACKWELL, Judge,

text:
    A11A1651, A11A1652.
    CRUMP INSURANCE SERVICES et al. v. ALL RISKS, LTD. (two cases).
    (727 SE2d 131)
   BARNES, Presiding Judge.

Alejandro Duran, Carl Feldhaus, and Jordan Yoss were employed in Georgia by All Risks, Ltd., a Maryland insurance brokerage firm, pursuant to agreements that include restrictive covenants, a forum-selection clause requiring the resolution of any dispute in a Maryland court and a choice-of-law clause requiring the application of Maryland law. In April 2010, Duran, Feldhaus, and Yoss resigned their employment with All Risks and became employed by Crump Insurance Services, Inc., a Texas insurance brokerage firm. Crump, Duran, Feldhaus, and Yoss sued All Risks in Georgia, seeking declaratory judgments that the agreements are unenforceable. Citing the forum-selection clause, both trial courts dismissed the suits, and Crump, Duran, Feldhaus and Yoss appeal, contending that the restrictive covenants were unenforceable in Georgia under the law that existed when the parties entered into the contracts. They further argue that, because Maryland courts were likely to enforce the covenants, Georgia courts should not honor the forum-selection clause. We disagree and affirm the judgments below.

We review de novo a trial court’s ruling on a motion to dismiss. The Houseboat Store v. Chris-Craft Corp., 302 Ga. App. 795, 795 (692 SE2d 61) (2010). The agreements in this case provide that Maryland law applies and that any dispute concerning the agreements must be resolved in a Maryland court. The appellants argue that Georgia law applies, the contractual provision notwithstanding, because they resided in Georgia and worked for All Risks in Georgia, and under Georgia law, the restrictive covenants in the agreements are unenforceable. The forum-selection clause is likewise unenforceable, they contend, because a Maryland court would likely honor the choice-of-law clause, apply Maryland law, and conclude that the restrictive covenants are enforceable, contrary to Georgia public policy.

Georgia law provides that “the law of the jurisdiction chosen by parties to a contract to govern their contractual rights will be enforced unless application of the chosen law would be contrary to the public policy or prejudicial to the interests of this state.” CS-Lakeview at Gwinnett, Inc. v. Simon Property Group, 283 Ga. 426, 428 (659 SE2d 359) (2008). If the appellants can show that the restrictive covenants in this case violate Georgia public policy and that a Maryland court would likely enforce the covenants against them, then requiring them to litigate in Maryland would deprive them of a meaningful opportunity to argue that the covenants were void, damaging them and the applicable Georgia public policy against restraint of trade. Bunker Hill Intl., 309 Ga. App. at 507.

Restrictive covenants in employment contracts are in partial restraint of trade and are enforceable only if strictly limited in time and territorial effect and are otherwise reasonable considering the business interest of the employer sought to be protected and the effect on the employee.

(Citation and punctuation omitted.) Fuller v. Kolb, 238 Ga. 602, 603 (234 SE2d 517) (1977). Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court. Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 139 (287 SE2d 546) (1982). When addressing the question of reasonableness, a court should consider the duration, territorial coverage, and scope of activity subject to the restrictions. W.R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992). A restrictive covenant without territorial limitations that limits a former employee from accepting business from any customer of the former employer is unenforceable under Georgia law. See Coleman v. Retina Consultants, 286 Ga. 317, 320 (1) (687 SE2d 457) (2009).

The restrictions in the contracts in this case were not limited geographically, and prohibited the former employees from even accepting business from certain customers for two years, regardless of whether the employees had worked directly with the customers. The contracts also provided that the passage of the two-year time period was tolled during any breach of the restrictive covenants. While All Risks disputes the contention in the appellants’ statement of facts that these covenants are unenforceable under applicable Georgia law, they clearly are unenforceable and are contrary to the Georgia public policy against restraint of trade.

After determining that the restrictive covenants violate Georgia public policy, the courts must consider whether a Maryland court would be likely to enforce the covenants against the former employees. In finding for the appellee that the forum-selection provision was valid, the trial court in Case No. A11A1652 held that Maryland’s law on restrictive covenants was similar to Georgia’s law. It cited a 2008 decision from the Court of Special Appeals of Maryland, which held that

an employee’s agreement not to compete with his employer upon leaving the employment will be upheld if the restraint is confined within limits which are no wider as to area and duration than are reasonably necessary for the protection of the business of the employer and do not impose undue hardship on the employee or disregard the interests of the public.

(Citation and punctuation omitted.) Ecology Svcs. v. Clym Environmental Svcs., 181 Md. App. 1, 14-15 (952 A2d 999) (2008). For example, applying Maryland law, a federal court in 2010 struck down a restrictive covenant in an employment contract because the scope of proscribed activity was too broad. MCS Svcs. v. Jones, No. WMN-10-1042, 2010 U. S. Dist. LEXIS 105013, at *11-15 (D. Md. Oct. 1, 2010).

Maryland’s highest court has explained that the state “follows the general rule that restrictive covenants may be applied and enforced only against those employees who provide unique services, or to prevent the future misuse of trade secrets, routes or lists of clients, or solicitation of customers.” Becker v. Bailey, 268 Md. 93, 97 (299 A2d 835) (1973). Courts in Maryland interpret these restrictive covenant provisions on a case-by-case basis, because “[t]here is no arbitrary yardstick as to what protection of the business of the employer is reasonably necessary, no categorical measurement of what constitutes undue hardship on the employee, no precise scales to weigh the interest of the public.” Ruhl v. Bartlett Tree Expert Co., 245 Md. 118, 124 (225 A2d 288) (1967).

The appellants here have not shown that a Maryland court would enforce these covenants, and therefore have not shown that proceedings in a Maryland court would likely produce a result that offends the public policy of Georgia. Absent such a showing, no compelling reason appears to avoid the forum-selection clause, and therefore we affirm the judgments of the trial courts.

Judgments affirmed.

Adams, J., concurs. Blackwell, J., concurs specially.

BLACKWELL, Judge,

concurring specially.

I concur specially. As the majority says, to avoid the forum-selection clause in this case, Crump, Duran, Feldhaus, and Yoss were required to show not only that the restrictive covenants violate Georgia law, but also that a Maryland court likely would enforce those covenants. Bunker Hill Intl. v. NationsBuilder Ins. Svcs., 309 Ga. App. 503, 507 (710 SE2d 662) (2011). For the purposes of this appeal, I am willing to assume that the restrictive covenants violate Georgia law, and I also am willing to assume that they would be enforceable under Maryland law. Even assuming these things, Crump, Duran, Feldhaus, and Yoss have failed to show a likelihood that a Maryland court would apply Maryland law to these covenants, and for that reason, they have failed to show that a Maryland court likely would enforce the covenants. See Iero v. Mohawk Finishing Products, 243 Ga. App. 670, 672 (534 SE2d 136) (2000) (party failed to show that proceedings in the selected forum, New York, would offend public policy of Georgia where party failed to “even address whether the New York court would apply New York law”).

There is some reason to believe that a Maryland court would apply Georgia law to the restrictive covenants in this case, notwithstanding the contractual choice of Maryland law. Maryland follows Section 187 of the Restatement (Second) of Conflict of Laws, see Jackson v. Pasadena Receivables, 398 Md. 611, 619-620 (921 A2d 799) (2007), which provides that a contractual choice of law may be avoided where

application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which... would be the state of the applicable law in the absence of an effective choice of law by the parties.

Restatement (Second) of Conflict of Laws § 187 (2) (b). In a similar case involving restrictive covenants and Georgia employees, a Maryland court refused to honor the contractual choice of Maryland law and instead applied Georgia law, inasmuch as “Georgia had a far greater relationship to the employment contracts and . . . the non-compete agreements violated Georgia’s fundamental public policies.” Hunter Group, Inc. v. Smith, 9 Fed. Appx. 215, 219 (I) (4th Cir. 2001). Moreover, All Risks has sued Duran, Feldhaus, and Yoss in a Maryland federal court for breach of their restrictive covenants, and in that case, the court explicitly has acknowledged the possibility that Georgia law might govern whether the covenants are enforceable, the contractual choice of Maryland law notwithstanding. See All Risks, Ltd. v. Crump Ins. Svcs., Civil Action No. CCB-10-1554, 2011 WL 1304898, *5 (D. Md. Mar. 31, 2011). Crump, Duran, Feldhaus, and Yoss have failed to show that a Maryland court would apply Maryland law to the restrictive covenants at issue, and for this reason, they cannot avoid the forum-selection clause.

Decided March 28, 2012

Reconsideration denied April 12, 2012

Jackson Lewis, Jeffrey A. Schwartz, Robert W. Capobianco, Brandon M. Cordell, for appellants.

Elarbee, Thompson, Sapp & Wilson, Douglas H. Duerr, Anthony Ventry III, for appellee.

       Crump, Feldhaus, and Yoss filed an action on the Feldhaus and Yoss agreements, and Crump and Duran filed a separate action on the Duran agreement. The actions were assigned to different judges.

       We apply the law of restrictive covenants as it existed when the contract was made, before the effective date of OCGA §§ 13-8-50 through 13-8-59, which defined the parameters of permissible covenants and granted courts the ability to amend these contracts rather than invalidate them entirely. See Bunker Hill Intl. v. NationsBuilder Ins. Svcs., 309 Ga. App. 503, 505, n. 1 (710 SE2d 662) (2011); Ga. Const. of 1983, Art. III, Sec. VI, Par. V (c) (2), (3).

       The trial court in Case No. A11A1651 did not state the reason for its grant of summary judgment to the appellees.

       Crump, Duran, Feldhaus, and Yoss note that our opinion in Bunker Hill says nothing about the likelihood that a court in the selected forum would apply the law of some jurisdiction other than Georgia. That is true enough, but perhaps we said nothing about it in Bunker Hill because no one argued that there was any chance that a court in the selected forum would apply Georgia law. We were explicit inBunkerHill that, to avoid a forum-selection clause in a case like this one, a party must show a likelihood that a court in the selected forum would uphold a covenant that is unenforceable under Georgia law. Such a showing necessarily requires a showing that such a court would not, in fact, apply Georgia law.