author: BARNES, Presiding Judge.

text:
    A14A0008.
    THE STATE v. CROSSEN.
    (761 SE2d 596)
   BARNES, Presiding Judge.

The State appeals from the trial court’s order deviating from the mandatory minimum sentence requirements under OCGA § 17-10-6.2 (b), contending that the defendant has the burden of proving that he is eligible for the deviation. The statute provides that a defendant convicted of certain sexual offenses must be sentenced to at least the minimum term of imprisonment applicable to the offense, but allows the trial court to exercise its discretion to deviate from the mandatory minimum under certain circumstances. For the reasons that follow, we affirm.

Stephen Crossen was indicted on six counts of sexual exploitation of a child, OCGA § 16-12-100 (b), one count of sodomy, OCGA § 16-6-2 (a) (1), six counts of misdemeanor dissemination of pornography to a minor, OCGA § 16-12-103 (a), and one count of interference with custody, OCGA § 16-5-45 (b). The charges stemmed from Crossen’s involvement in a relationship with a 16-year-old girl, in which the two exchanged sexually explicit pictures and text messages and engaged in consensual oral sodomy in a public park on one occasion.

Crossen pled guilty to all charges and after accepting his plea, the trial court granted his request for a pre-sentence investigation. After the pre-sentence investigation report was complete, the trial court held a sentencing hearing, during which the State presented no aggravating factors or victim impact testimony. Crossen presented several character witnesses, and also testified. At the end of the hearing, the trial court found that OCGA § 17-10-6.2 required him to sentence Crossen to serve no less than the minimum statutory sentence on the sexual exploitation of children and sodomy counts, and sentenced him to seven years to serve five in custody on each of the six sexual exploitation of children counts and on the sodomy count, twelve months to serve on each of the six pornography dissemination counts, and one month to serve on the interference with custody count, all to be served concurrently.

Later that day, the trial court issued an order stating that it appeared to have misinterpreted the mandatory sentencing statute and set a hearing “for a reconsideration of the sentence.” At the second hearing, held approximately two weeks after the first one, the trial court informed the parties that it had determined that it had the discretion under OCGA § 17-10-6.1 (c) to sentence Crossen to less than the minimum statutory sentences on all of the charges against him except the sodomy count.

After hearing argument, the court resentenced Crossen, reducing his sentence on the six charges of sexual exploitation from seven years with five to serve in custody to five years with two to serve in custody. In its order approving the deviation, the trial court explained its reasoning and found as fact that there was no evidence of any of the factors listed in OCGA § 17-10-6.2 (c) (1) (A)-(F) that would prohibit it from exercising its discretion except as to the sodomy count. Regarding that count, the trial court found that the facts disclosed at the plea hearing established that Crossen had transported the victim to the park, and the fact of transportation foreclosed the court from exercising its discretion to sentence a defendant to less than the mandatory minimum under OCGA § 17-10-6.2 (c) (1) (E). In exercising its discretion to depart downward on the other counts, the court specified that it was relying on evidence introduced during the plea hearing, the first sentencing hearing, and the probation office’s pre-sentence investigation. It found that

[t]he defendant has no prior convictions of any kind, the defendant did not use a deadly weapon or similar object during the commission of the offense, there was no evidence of similar transactions presented, the victim was not touched during the commission of the offense, the offense did not involve the transportation of the victim and the victim was not physically restrained during the commission of the offense.

The court further found that “the fact of a divergence not being available in only one count does not disqualify the defendant from receiving it in other counts where it is available. The allegations of the indictment combine offenses that occurred over a period of time.” Finally, the trial court held that, contrary to the State’s contention, Crossen did not bear the burden of proving his entitlement to the deviation. Instead, the court held, “the statute itself contemplates a failure of proof on the part of the State,” and held that placing the burden of proof on the defendant “would be burden shifting and unconstitutional.”

The State appeals, contending that the trial court erred in deviating from the mandatory minimum sentence under OCGA § 17-10-6.2 because “no evidence was presented as to any of the factors permitting deviation.” The State further contends that the trial court erred in holding that the State, not the defendant, had the burden of establishing the existence of the statutory factors that prohibit the court from deviating from the mandatory minimum. Under the circumstances in this case, we discern no error.

OCGA § 17-10-6.2 (a) lists ten crimes to be considered “sexual offenses” under the statute, including the offenses of sodomy and sexual exploitation of children. OCGA § 17-10-6.2 (a) (3), (10). Subsection (b) of the statute requires a trial court to sentence a person convicted of a “sexual offense” to a split sentence that must include at least the minimum term of imprisonment specified in the Code section prohibiting the offense and an additional probated sentence of at least a year. The statute further provides, however, that the trial court, in its discretion,

may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, . . . provided that:
(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 [sexual offenses] or Part 2 of Article 3 of Chapter 12 of Title 16 [obscenity offenses related to minors], nor a prior conviction for any [similar] offense under federal law or the laws of another state . . . ;
(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;
(C) The court has not found evidence of a relevant similar transaction;
(D) The victim did not suffer any intentional physical harm during the commission of the offense;
(E) The offense did not involve the transportation of the victim; and
(F) The victim was not physically restrained during the commission of the offense.

OCGA § 17-10-6.2 (c) (1) (A)-(F).

We first note that “[p]enal statutes are always construed strictly against the State and liberally in favor of human liberty.” Gee v. State, 225 Ga. 669, 676 (7) (171 SE2d 291) (1969). Moreover, in so construing a statute, “the cardinal rule is to glean the intent of the legislature. Language in one part of the statute must be construed in the light of the legislative intent as found in the statute as a whole.” (Citation and punctuation omitted.) Goldberg v. State, 282 Ga. 542, 544 (651 SE2d 667) (2007).

In addition, [in] interpreting a statute, we must presume that the General Assembly had full knowledge of the existing state of the law and enacted the statute with reference to it. We construe statutes in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and decisions of the courts.

(Citations and punctuation omitted.) Chase v. State, 285 Ga. 693, 695-696 (2) (681 SE2d 116) (2009). And in so doing, criminal statutes should not be limited or extended by application of subtle and forced interpretations. State v. Johnson, 269 Ga. 370, 371 (1) (499 SE2d 56) (1998).

In applying these principles, under the statutory scheme set forth in OCGA § 17-10-6.2, a trial court is prohibited from probating, suspending, staying, deferring, or withholding any of the mandatory term of imprisonment stated for any of the specified offenses. Hedden v. State, 288 Ga. 871, 873-874 (708 SE2d 287) (2011). But, the statute permits, at the trial court’s discretion, a deviation from the mandatory minimum provided that six factors are found. OCGA § 17-10-6.2 (c) (1) (A)-(F). Thus, the possibility of a less stringent sentence is permitted if Crossen had no prior conviction of any of the specified offenses, did not use a deadly weapon during the offense, there was no evidence of a relevant similar transaction, the victim did not suffer physical harm during the crime; there was no transportation of the victim; and the victim was not physically restrained during the offense. Id. To that end, in a pre-sentence hearing, the trial court takes into consideration all aspects of the crime, including the past criminal record or lack thereof to determine a sentence. See generally Johnson v. State, 126 Ga. App. 757 (191 SE2d 614) (1972). Thus, in these circumstances, if the trial court determines that the requirements of OCGA § 17-10-6.2 (c) (1) (A)-(F) have been satisfied after the evidence was presented, then it could consider a downward deviation from the mandatory minimum. OCGA § 17-10-6.2 (c) (1) certainly “does not require a trial court to procure evidence that is not tendered, and the court certainly cannot force a party to put forth evidence.” Watts v. State, 261 Ga. App. 230, 235 (3) (582 SE2d 186) (2003). The statute permits the trial court in consideration of the evidence presented and in the exercise of its discretion to downward deviate if the statutory factors are absent. Carr v. State, 267 Ga. 547, 558 (8) (b) (480 SE2d 583) (1997).

The statute, however is silent in regard as to who carries the burden of establishing the absence of the factors that would permit a downward departure. This silence creates an ambiguity. See State v. Langlands, 276 Ga. 721, 724 (2) (583 SE2d 18) (2003). And, where the language in a criminal statute is ambiguous, it must be construed in favor of the defendant. State v. Mills, 268 Ga. 873, 875 (495 SE2d 1) (1998). Thus, the trial court did not err in doing so.

Moreover, the record demonstrates that the trial court held two pre-sentencing hearings and the option of downward deviation in OCGA § 17-10-6.2 (c) (1) was an issue at both hearings. Subsequently, although fully aware of the trial court’s intention to reconsider the OCGA § 17-10-6.2 provisions at the second sentencing hearing, the State presented absolutely no evidence about the existence of any statutory factors that would prohibit the court from deviating downward on Crossen’s sentence. Thereafter, upon consideration of evidence adduced from the plea hearing, the sentencing hearings, and the pre-sentencing report, the trial court specifically found that the factors were absent except for the transportation of the victim in the sodomy count. To that end, the State does not maintain on appeal that Crossen was ineligible for a downward deviation on his sentence because other evidence of the OCGA § 17-10-6.2 (c) (1) factors exists which the trial court failed to consider.

Decided July 11, 2014.

Herbert E. Franklin, Jr., District Attorney, for appellant.

McCracken Poston, for appellee.

Brandon A. Bullard, James C. Bonner, Jr., Joseph S. Key, Peters, Rubin & Sheffield, Robert G. Rubin, amici curiae.

Although the State filed a supplemental brief in which it argued that the trial court erred because each individual count constituted a “relevant similar transaction” to the other sexual offenses, and that under OCGA § 17-10-6.2 (c) (1) (C) the court was prohibited from sentencing Crossen to less than the mandatory minimum time for each count, we will not consider this new argument on appeal. As we have consistently held, a party cannot broaden his enumerated errors through argument or citations in a brief. Manley v. State, 287 Ga. App. 358, 360 (4) (651 SE2d 453) (2007). “Attempts in a supplemental brief to expand the issues beyond the scope of the enumeration of errors are improper.” (Punctuation omitted.) Campbell v. State, 253 Ga. App. 325, 326 (3) (558 SE2d 857) (2002).

Accordingly, in these circumstances, the trial court did not abuse its discretion in its downward departure in sentencing Crossen.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Three of the exploitation counts charged Crossen with enticing the victim to send him images of her engaging in sexually explicit conduct, and the other three counts were related to his possession of the images.

       The Georgia Association of Criminal Defense Lawyers (“GACDL”) argues, in its role as amicus curiae, that this Court should consider whether the trial court correctly found that the one instance of transportation in the sodomy count did not preclude it from exercising its discretion to deviate from the mandatory minimum sentences as to the other counts. However, the State did not enumerate this issue as error. Thus, as amicus briefs are “limited to issues properly raised by the parties,” we considered GACDL’s brief only to the extent it touched upon the error enumerated by the State. See Court of Appeals Rule 26 and Fulton County v. Bartenfeld, 257 Ga. 766, 771 (5) (363 SE2d 555) (1988) (appellate court cannot consider issue not raised by a party to the appeal).


source: Caselaw Access Project

license: Public Domain

text:
    A14A0047.
    ALI v. STATE OF GEORGIA. BECTOR v. STATE OF GEORGIA. PAUL v. STATE OF GEORGIA. SINGH v. STATE OF GEORGIA.
    A14A0048.
    A14A0070.
    A14A0410.
    (761 SE2d 601)
   BARNES, Presiding Judge.

These related appeals arise from a lengthy federal undercover operation involving the trafficking of untaxed cigarettes which culminated in a final transaction during which large sums of currency were seized. The State of Georgia, acting through the Hall County District Attorney, brought four civil in rem forfeiture actions under OCGA § 16-14-7 of the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO Act) against certain sums of currency and a named defendant or defendants. Each complaint alleged that the named defendant was involved in a pattern of trafficking untaxed cigarettes and committed multiple overt acts of exchanging currency for untaxed cigarettes, and that on October 19, 2011, the defendant brought the currency that was the subject of the forfeiture complaint to a warehouse for the purpose of buying untaxed cigarettes and cigars.

The appellants filed pleas in bar and motions to dismiss the forfeiture complaints, arguing that the complaints were not actually civil proceedings against the money but were criminal proceedings against the appellants personally that were barred by previous criminal prosecutions arising from the same transactions. The trial court denied the motions, and this court granted the appellants’ applications for interlocutory review. The appellants argue on appeal that the State failed to show that the subject currency itself was involved in at least two predicate acts of racketeering and thus could not demonstrate that the currency was involved in a pattern of racketeering activity, as required by OCGA § 16-14-7. For the reasons that follow, we affirm.

In its virtually identical forfeiture complaints, the State alleged that the currency was subject to forfeiture because it was possessed by the appellants and intended to be used to

purchase and possess untaxed and counterfeit-stamped cigarettes in violation of 18 U. S. C. A. § 2342 of the CONTRABAND CIGARETTE TRAFFICKING ACT, 18 U. S. C. §§ 2341-46, and 18 U. S. C. § 2315, SALE OR RECEIPT OF FRAUDULENT STATE TAX STAMPS, constituting racketeering activity.

Each complaint alleged a pattern of racketeering activity involving the illegal enterprise of trafficking in contraband cigarettes and possessing cigarettes with counterfeit tax stamps to avoid paying state excise taxes, and then described multiple overt acts at particular locations on particular dates, during which the appellants exchanged large sums of United States currency in exchange for cartons of untaxed cigarettes.

OCGA § 16-14-7 (c) provides: “A RICO forfeiture proceeding shall be an in rem proceeding against the property.” In their pleas in bar and motions to dismiss, the appellants argued that the State must show that the property was used or intended to be used in a pattern of racketeering activity, and the forfeiture complaints at issue in this case improperly focused on the conduct of the appellants rather than the property. They further maintained that the action was for all practical purposes a criminal in personam forfeiture, rather than an in rem forfeiture. Thus, the appellants argued, they were faced with a second prosecution for the same conduct for which they had already been prosecuted criminally, in violation of constitutional and statutory prohibitions against double j eop ardy as held in Cisco v. State of Ga., 285 Ga. 656, 661 (1) (680 SE2d 831) (2009).

In denying the appellants’ motions, the trial court found that the actions were civil in rem rather than criminal in personam forfeiture actions and that the focus of the actions was not on the appellants’ culpability but on the seized currency’s guilt. In seeking to show that the seized currency was being “used or intended for use in the course of, derived from, or realized through a pattern of racketeering activity,” the State had to prove predicate acts that happened to involve the appellants, but the focus was not on the appellants’ culpability, the court held.

In response to the appellants’ argument that the State could not show that the seized currency was intended for use in a pattern of racketeering activity under OCGA § 16-14-7, the court found thatthe bills actually seized were not the identical bills used in prior alleged predicate acts, but noted that currency is fungible.

As the Court does not believe that OCGA § 16-14-7 requires the State to show that the bills seized were the exact bills used in previous alleged acts, the Court finds that it is sufficient for the State to allege that the same type of fungible property was used in a pattern racketeering activity as was seized. . . . The Court finds that the State has alleged at least two predicate acts in a series of transactions involving the same or similar intents and methods over the course of a number of months, meeting the “pattern of racketeering activity” requirement of OCGA § 16-14-7.

“The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” (Punctuation and footnote omitted.) Johns v. State, 319 Ga. App. 718, 719 (738 SE2d 304) (2013). On appeal, the appellants maintain that the forfeiture complaint failed to allege that the currency subject to the in rem forfeiture was involved in at least two distinct predicate acts and thus the currency was not involved with a pattern of racketeering activity or subject to a civil RICO in rem forfeiture per OCGA § 16-14-7. We do not agree.

Under Georgia’s RICO Act, “[i]t is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.” OCGA § 16-14-4 (a). Moreover, “[a]ll property of every kind used or intended for use in the course of, derived from, or realized through a pattern of racketeering activity is subject to forfeiture to the [S]tate.” OCGA § 16-14-7 (a). A “pattern of racketeering activity” means engaging in at least two predicate acts of racketeering activity. See OCGA § 16-14-3 (8) (A); Aon Risk Svcs, of Ga. v. Commercial & Military Systems Co., 270 Ga. App. 510, 516 (5) (b) (607 SE2d 157) (2004). In the context of an in rem RICO forfeiture action, where the property itself is the named defendant, the focus is on whether the property “was used or intended for use in the course of, derived from, or realized through a pattern of racketeering activity,” and the State can pursue such an action “without regard to the guilt or innocence of the property owner.” Cisco, 285 Ga. at 661 (1).

The appellants argue that the currency itself must be “guilty” of the RICO offense, and that construing OCGA § 16-14-7 (a) and OCGA § 16-14-3 (8) (A) together, the State had to allege and prove that the currency subject to forfeiture was “used in the course of engaging in at least two (2) acts of racketeering activity.” Here, the State did not even allege that the subject currency was involved in more than one act of racketeering activity, which was the October 19, 2011, transaction during which it was confiscated.

As noted earlier, the Georgia RICO Act provides that the “pattern of racketeering activity” means engaging in at least two incidents of racketeering activity. OCGA § 16-14-3 (8) (A). And further, “racketeering activity” is defined to mean the commission of a crime in any of specified categories of offenses, including “[a]ny conduct defined as “racketeering activity” under [18 USCS §§ 2341-2346 (relating to trafficking in contraband cigarettes)].” OCGA § 16-14-3 (9) (A) (xxix). These categories of offenses are also known as the predicate offenses. See Caldwell v. State, 253 Ga. 400, 402 (1) (321 SE2d 704) (1984) (identifying the elements of a civil RICO forfeiture proceeding). Contrary to the appellants’ contention, the Georgia RICO Act contemplates the performance of two or more predicate offenses to establish a pattern of racketeering, rather than requiring that the object of the forfeiture committed two or more predicate offenses. See Aon Risk Svcs., 270 Ga. App. at 516 (5) (b) (theft claims did not show two predicate acts to support a pattern of racketeering activity).

In this case, the appellants were alleged to have committed federal RICO crimes relating to trafficking in contraband cigarettes, an allegation that is set forth under the list of predicate offenses in OCGA § 16-14-3 (9) (A) (xxix) and conduct that is defined as “racketeering activity” by OCGA § 16-14-4 (a). Additionally, these offenses are alleged to have occurred at least twice in that appellants committed the predicate offenses — trafficking in contraband cigarettes — multiple times.

While the forfeiture complaints alleged that the appellants committed numerous criminal transactions involving contraband cigarettes, a civil in rem forfeiture depends “not upon a property owner’s culpability but, instead, upon the property’s being connected to some criminal act.” (Punctuation omitted.) Cisco, 285 Ga. at 663 (1). And for RICO purposes, the “pattern of racketeering activity” means engaging in at least two incidents of racketeering activity. OCGA § 16-14-3 (8) (A). Moreover, in an in rem proceeding, unlike an in personam proceeding, the property itself can be seized merely because it has been used by someone, not necessarily just the owner, in connection with a criminal enterprise. OCGA § 16-14-7 (a), (c).

Despite the appellants’ contention otherwise,
[a]ny “punishment” in [this] forfeiture proceeding is against the property, not the owner as a criminal defendant. It in no way equates to a criminal prosecution or to punishment for a criminal offense by the defendant or owner of the property forfeited, and the fact that the [appellants] feel[ ] [they are] being punished by a civil forfeiture does not render the civil forfeiture a proceeding putting [them] in jeopardy.

Decided July 11, 2014 —

Brian Steel, for appellants (case nos. A14A0047, A14A0048).

Salu K. Kunnatha, for appellant (case no. A14A0070).

Janice Singer-Capek, for appellant (case no. A14A0410).

Lee Darragh, District Attorney, Juliet Aldridge, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Rojas v. State, 226 Ga. App. 688, 689-690 (487 SE2d 455) (1997).

In these cases, the trial court was authorized to conclude that the RICO forfeiture actions were not criminal in personam actions and therefore did not violate any constitutional or statutory provisions prohibiting double jeopardy.

Judgments affirmed.

Boggs and Branch, JJ., concur.

       The appellants are Karim Ali, Rishi Bector, Wilson Paul, and Balbir Singh, and the complaints sought $178,700, $226,238, $199,790, and $201,900, respectively.

       All of the appellants entered guilty pleas after being indicted under various racketeering charges.

       In Cisco, the Supreme Court of Georgia held that the in personam RICO forfeiture provision of OCGA § 16-14-7 (m) was unconstitutional “because it deprivefd] in personam forfeiture defendants of the safeguards of criminal procedure guaranteed by the United States and Georgia Constitutions.” Id. at 658. However, in the context of an in rem RICO forfeiture action, where the property itself is the named defendant, the focus is on whether the property was “used or intended for use in the course of, derived from, or realized through a pattern of racketeering activity,” OCGA § 16-14-7 (a), and the State can pursue such an action “without regard to the guilt or innocence of the property owner.” Id. at 661 (1).

       (8) “Pattern of racketeering activity’ means:
      (A) Engaging in at least two acts of racketeering activity in furtherance of one or more incidents, schemes, or transactions that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such acts occurred after July 1, 1980, and that the last of such acts occurred within four years, excluding any periods of imprisonment, after the commission of a prior act of racketeering activity.


author: Branch, Judge.

text:
    A14A0079.
    ALLEN et al. v. ZION BAPTIST CHURCH OF BRASELTON et al.
    (761 SE2d 605)
   Branch, Judge.

On the afternoon of October 24, 2010, after a homecoming festival at Zion Baptist Church of Braselton (“Zion”), Joshua Humphrey sexually assaulted a 14-year-old boy he had met while volunteering with the church’s youth group. After the boy’s parents, the Allens, sued Zion and Humphrey, Zion moved for summary judgment, which the trial court granted. On appeal from this ruling, the Allens argue that genuine issues of material fact remain as to their claims that Zion negligently hired, retained, and supervised Humphrey and that Zion’s spoliation of evidence also precludes a grant of summary judgment. Although we agree with the trial court’s conclusion that Zion did not engage in spoliation, we also find that questions of fact remain as to the Allens’ various other negligence claims. We therefore reverse the trial court’s grant of summary judgment to Zion.

“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.” Walker v. Gwinnett Hosp. System, 263 Ga. App. 554, 555 (588 SE2d 441) (2003) (citations and punctuation omitted). A trial court’s grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga. App. 11, 12 (530 SE2d 477) (2000).

Construed in favor of the Allens, the record shows that Zion’s child protection policy, stated in the application given to aspiring volunteers, was that “all volunteers working with preschool, children or youth” were required to have maintained church membership for at least three months and to complete a membership class and an application, which included two reference forms and written consent to a background check. By early September 2010, Humphrey, who was 21 years old, began attending services at Zion. On Sunday, September 5, Humphrey turned in a visitor communication card indicating that he wanted to volunteer for the youth ministry. As a result, Zion youth pastor Jason Ellis invited Humphrey to observe the youth meeting on Wednesday, September 8. Humphrey attended that meeting as well as the Sunday services on September 12.

On Wednesday, September 15, 2010, Humphrey gave his completed volunteer application, including two references, to Ellis. The church’s administrative assistant found Humphrey’s application suspicious, felt that there was “something not right” about him, and communicated these concerns to Ellis. Ellis did not take any further action on Humphrey’s application, however. After the September 15 youth meeting, the second attended by Humphrey, Ellis asked Humphrey to arrive early at the next meeting to assist with game night. At the game night, held on September 22, Humphrey handed out pizza, played catch football, ran laps around a makeshift trail, and took some boys to the weight room, with some of these activities taking place without any other adult present.

One of the two reference forms turned in by Humphrey bore a signature from Brandy Rowland, who later testified that she had declined to provide a reference for Humphrey, that she never filled out the reference form, and that her signature on the form was a forgery. Rowland averred that if the church had contacted her, which it did not, she would “never” have recommended Humphrey as a volunteer because she had “concerns that [Humphrey] may be a sexual predator.” At her deposition, Rowland specified that Humphrey became acquainted with Rowland’s boyfriend while working at a McDonald’s restaurant in Braselton, that Humphrey was a frequent visitor to her house, and that he paid special attention to her second son, who was four years old in 2010. Rowland testified that on one night that year when she, her boyfriend, two of her children, and Humphrey were all sleeping together in the same room, Humphrey, who was sleeping on the floor, repeatedly “grabb[ed]” or “hugg[ed]” the “feet” of her second son, who was also sleeping on the floor, in an effort to “pull” or “slide” the boy’s body “down” toward Humphrey. Rowland testified that this happened “four or five times,” that Humphrey pretended to be asleep throughout, and that she repeatedly pulled her son away from Humphrey before pulling her son off the floor entirely and into bed with her. Although Rowland told her boyfriend that she did not want Humphrey “always around” her children, she never spoke to Humphrey about this nighttime incident, and did not bar him from spending time with her children in its aftermath.

As of October 2010, the 14-year-old victim had attended Wednesday night services at Zion three or four times as a guest of his friend D. H. Neither the victim nor any member of his family was a member at Zion, however. On one of his visits to Zion, the victim met Humphrey, describing him to his mother as a “cool” youth leader who liked the same video games the victim did. On Sunday, October 24, Zion held a fall festival that included food, children’s games, and other activities. At around 2:00 p.m. that day, Humphrey called the victim and invited him to the festival. When the victim put his mother on the phone, Humphrey told her that he was a youth leader and asked if the victim could attend the festival. The victim’s mother agreed; drove the boy and his friend J. C. to Zion, where adults and children were engaged in cleanup after the conclusion of the festival; and dropped the two boys off in the parking lot without speaking to Humphrey or any other adult.

The victim and J. C. then found D. H., who was helping his mother clean up. As D. H. and his mother prepared to leave, the victim, J. C., and Humphrey went upstairs and played pool in the youth room. While there, Humphrey told the boys that he wanted to show them “some Army moves” he learned from his drill sergeant. Humphrey then put the victim in a headlock, choked him until he passed out, and slapped him in order to revive him. Soon afterward, D. H. came upstairs to the youth room and told Humphrey, the victim, and J. C. that his mother had told him that it was time to close the youth room. Humphrey led the victim and J. C. off church property to a wooded nature trail, where Humphrey and the victim began exchanging text messages on what Humphrey described to J. C. as “private stuff.” The victim then told J. C. to wait some distance away while the victim and Humphrey talked to each other. When the victim dropped his pants to urinate, Humphrey began masturbating in front of him; moments afterward, J. C. first saw what appeared to be the victim performing oral sex on Humphrey and then saw Humphrey penetrate the victim from behind. After the victim moved away from Humphrey and pulled up his pants, he and Humphrey rejoined J. C.

Later that afternoon, the Allens called their son, the victim, and arranged to pick him and J. C. up at a fast food restaurant in Braselton. When J. C. told the Allens about the attack, the Allens confirmed his account with their son. The Allens also called D. H.’s mother, who told them that Humphrey was not a Zion youth leader, informed them that Ellis was, and obtained the Allens’ permission to have Ellis call them. Ellis then called Mrs. Allen and told her that although the church had received Humphrey’s application to become a youth pastor, it had not completed the background check on him required under church policy. Ellis also admitted that Humphrey should not have been allowed to have unsupervised contact with youth at the church. Humphrey was arrested and charged with one count of attempted aggravated child molestation and three counts of child molestation. He pled guilty to two counts of child molestation and was sentenced to twenty years with fifteen to serve.

In May or June 2011, before the Allens filed suit against Zion and Humphrey, a Zion volunteer began an audit of employee and volunteer files for the purpose of updating “all criminal background information.” The volunteer’s method was to pull files with information older than five years and to destroy files of individuals who were no longer employed by or volunteering for the church “in order to make room for current files.” On July 20, 2011, the Allens filed suit against Zion and Humphrey, alleging that Zion was negligent when it hired, retained, and supervised Humphrey as a youth group volunteer and in its supervision of and failure to warn or intervene on behalf on the victim. In October 2011, the Allens served discovery requests seeking information on Zion’s procedures for selecting and screening employees and volunteers, including Zion’s personnel file on Humphrey, which was produced soon afterward. In March or April 2012, the same volunteer destroyed some personnel or volunteer files, including that of Ellis’s administrative assistant, who had left her job at the church. A Zion representative testified that the auditing volunteer knew that the Allens had filed suit against the church at the time she destroyed these files.

In May 2012, ten months after filing suit, the Allens expanded their discovery request to include files on all persons who had served in Zion’s youth ministry since 2007. Zion objected on the grounds that some files might not have been retained during a 2011 merger with another church, but produced the church’s files on six individuals, some of whom had left the church.

Zion moved for summary judgment on multiple grounds, including that it did not owe the victim any duty of care, that it did not know of any reasonably foreseeable risk of harm, and that any failure to prevent Humphrey from associating with the victim was not the proximate cause of the victim’s injuries. The trial court conceded for purposes of the motion that a jury question existed as to whether Humphrey’s volunteer status gave rise to a duty of care as to Zion’s “selection, supervision, and retention” of Humphrey, but granted Zion’s motion nonetheless because “no evidence” showed that Zion “knew or should have known” of Humphrey’s “propensity or proclivity to commit the criminal offense of sexual assault against a minor.” The trial court also denied the Allens’ motion for sanctions concerning Zion’s destruction of personnel files on the grounds that the Allens had not created any “meaningful link” between their claims and the alleged spoliation of Zion’s personnel files, including that of Ellis’s administrative assistant, and had not shown that Zion had acted in bad faith. The Allens appeal from both of these orders.

1. The Allens first argue that the trial court erred when it granted summary judgment because genuine issues of material fact remain as to their claims against Zion, including (a) Humphrey’s status as a volunteer, (b) Zion’s duty of care in hiring, retaining, and supervising him, and (c) whether any breach of such duty was the proximate cause of the victim’s injuries. We agree.

(a) “[A]n employer must exercise ordinary care in the selection of employees, [and] must not retain them after knowledge of incompetency[.]”Piney Grove Baptist Church v. Goss, 255 Ga. App. 380, 383 (2) (565 SE2d 569) (2002) (citations omitted). Cases authorizing an employer’s liability for negligent hiring and/or retention show that “in each instance,” either “the tortious act occurred during the tortfeasor’s working hours or the employee was acting under color of employment.” Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 233-234 (1) (378 SE2d 857) (1989) (citation and punctuation omitted; emphasis supplied). “Where a servant departs from the prosecution of his business and commits a tort while acting without the scope of his authority, the person employing him may still be liable if he failed to exercise due care in the selection of his servant.” TGM Ashley Lakes v. Jennings, 264 Ga. App. 456, 461 (1) (b) (590 SE2d 807) (2003) (citations and punctuation omitted; emphasis in original). “[L]iability does not attach[, however,] if the employee committed [a] tort in a setting or under circumstances wholly unrelated to his employment.” Id. at 459 (1) (a) (citations omitted).

These same principles apply to the acts or omissions of nonprofit organizations, including churches, when such an organization “solicits volunteers to perform projects on its behalf.” Piney Grove, 255 Ga. App. at 383 (2) (citation and footnote omitted). “As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury.” Bull Street Church of Christ v. Jensen, 233 Ga. App. 96, 99 (1) (504 SE2d 1) (1998) (citation and punctuation omitted). “Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.” Id. (citation and punctuation omitted).

Here, it is undisputed that the youth pastor asked Humphrey to assist him at the youth group’s game night, that Humphrey attended that event with the tacit approval of Zion authorities, and that he was left alone with some youth during that event. It is also undisputed that when, some weeks afterward, the victim’s mother dropped off the victim on church property at the conclusion of the fall festival, adults were still engaged in cleanup in the aftermath of that event; that Humphrey met the victim at that time; and that the attack took place immediately afterward next to church property. We therefore agree with the Allens and the trial court that a question of fact remains as to whether the attack took place under circumstances not “wholly unrelated” to Humphrey’s employment as a youth group volunteer. See TGM Ashley Lakes, 264 Ga. App. at 459 (1) (a) (apartment complex could be held liable for negligent hiring and retention of maintenance worker who was given access to residents’ keys and murdered a resident in her apartment); Underberg v. Southern Alarm, 284 Ga. App. 108, 115 (2) (643 SE2d 374) (2007) (alarm company salesman who gained entrance to a house through an unlocked door without using his status as an employee to do so did not render his subsequent abduction of a customer “wholly unrelated” to his employment).

(b) An employer may be liable for a failure to exercise due care in selecting, retaining or supervising an employee or volunteer when such a person “departs from the prosecution of his business and commits a tort while acting without the scope of his authority.” TGM Ashley Lakes, 264 Ga. App. at 461 (1) (b) (citation, punctuation and emphasis omitted). As our Supreme Court has held, however, an employer may be held liable for such a tort “only where there is sufficient evidence to establish that the employer reasonably knew or should have known of an employee’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff,” such that it is reasonably foreseeable “that the employee could cause the type of harm sustained by the plaintiff.” Munroe v. Universal Health Svcs., 277 Ga. 861, 863 (596 SE2d 604) (2004) (citation and punctuation omitted).

As we held in Drury v. Harris Ventures, 302 Ga. App. 545 (691 SE2d 356) (2010), an employer such as Zion cannot be held to be required “to independently verify each area of possible error” on a volunteer application because such a responsibility “would render employment decisions in even the most basic settings untenably fraught with potential liability.” Id. at 549 (2). But our Supreme Court has noted that the question “[wjhether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case.” Munroe, 277 Ga. at 864, n. 4 (citation omitted). Specifically,

a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search on job applicants have failed to exercise ordinary care in hiring suitable employees, even absent a statutory duty to conduct such background searches.

Id.

It is undisputed that Zion did not contact either of Humphrey’s references before allowing him to have unsupervised contact with members of Zion’s youth program. A jury could reasonably conclude on the record before us not only that such a program was a “more sensitive” matter requiring at least a check of references before Humphrey had unsupervised contact with youth, but also that had Zion contacted Rowland, Zion would have been on notice of Humphrey’s “propensity to inflict physical harm which ought to [have] arouse[d] suspicion and investigation.” Munroe, 277 Ga. at 865; see also Underberg, 284 Ga. App. at 111 (1) (reversing a grant of summary judgment to alarm company on a negligent hiring and retention claim because the company owed a “heightened duty to ascertain whether individuals it hired, even briefly, to enter homes of unsuspecting persons for the purpose of selling security systems were suited for this purpose”).

Zion seeks to escape this conclusion by citing Poole v. North Ga. Conference of the Methodist Church, 273 Ga. App. 536 (615 SE2d 604) (2005), in which we affirmed the grant of summary judgment to a church as to liability arising from its minister’s clandestine sexual relationship with plaintiff’s wife, a relationship that was carried on while the same minister was counseling plaintiff on his marriage. Id. at 537. In that case, while an investigation into the minister’s past misdeeds would have revealed only that he had touched younger parishioners inappropriately, we concluded that because plaintiff had not produced evidence showing that the minister’s “background information” would have placed the church on notice that it was “reasonably foreseeable from [the minister’s] tendencies or propensities that [he] could cause the type of harm sustained” — that is, the violation of trust involved in providing counseling to a husband while conducting a sexual relationship with his wife. We therefore concluded that plaintiff’s negligent hiring claim failed as a matter of law. Id. at 538-539.

Here, by contrast, Zion allowed Humphrey unsupervised contact with children before it checked his references, one of which would have yielded some evidence that Humphrey had attempted to molest a child—the same category of criminal and tortious conduct of which these plaintiffs complain. Because a jury could reasonably conclude on this record that Zion failed to exercise reasonable care as to accepting Humphrey’s services as a volunteer youth leader without contacting either of his references, the trial court erred when it granted Zion summary judgment on the Allens’ negligent hiring, retention, and supervision claims. Piney Grove, 255 Ga. App. at 384 (2) (church’s failure to investigate a volunteer’s qualifications for a construction job precluded summary judgment on plaintiff’s negligent hiring claim); Bull Street Church, 233 Ga. App. at 100-101 (1) (affirming jury verdict in favor of plaintiff on negligent supervision claim when defendant church had some actual notice that the ten-year-old boy who sexually assaulted the four-year-old victim had previously exposed himself to another four-year-old girl).

(c) As the above discussion suggests, we cannot conclude that Humphrey’s criminal act of molesting the victim was unforeseeable as a matter of law such that Zion’s breach of care could not be held the proximate cause of that molestation.

“The causation element [of a negligent hiring and retention action] requires showing that, given the employee’s dangerous propensities, the victim’s injuries should have been foreseen as the natural and probable consequence of hiring the employee.” Underberg, 284 Ga. App. at 113 (2). “Causation is usually a jury question, except in plain, palpable and undisputable cases.” Id. Specifically,

[w]hether the employment-related contact and the later event in which the injuries occur are so separated by time or other circumstances that the former cannot reasonably be said to be a substantial factor in producing the result complained of depends upon the facts in each case.

Id. at 114 (2). Further, although a 14-year-old’s capacity to take ordinary care “is presumptively that of an adult, the youth and inexperience of a child of this age are to be considered and the matter ordinarily left as a question of fact for the jury rather than as a matter of law for the court.” Harvey Freeman, 259 Ga. at 235 (3). Thus “the jury may decide” in this case whether Zion’s acts or omissions were the proximate cause of the victim’s injuries. Id.

2. Our disposition of Division 1 necessarily revives the Allens’ claims for ordinary negligence, negligent failure to supervise the victim, and negligent failure to warn the victim, all of which require proof of Zion’s duty to avoid only reasonably foreseeable harms, breach of such duty, proximate causation (including contributory negligence), and damages, just as the Allens’ claim for negligent hiring, retention, and supervision does. See Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982) (noting existence of a “general duty one owes to all the world not to subject them to an unreasonable risk of harm”) (emphasis supplied). Although Zion also moved for summary judgment on the Allens’ claims for negligent infliction of emotional distress, punitive damages, and attorney fees, the trial court mooted them on the ground that the Allens’ negligence claim failed. Our reversal in Division 1 of the trial court’s decision also revives these issues, which await disposition on remand.

3. The Allens also argue that the trial court erred when it granted summary judgment in the face of evidence that Zion destroyed personnel files including that of the administrative assistant employed at the time of the attack at issue. Specifically, the Allens object to the trial court’s characterization of the evidence contained in those files as “cumulative” and ask that unspecified testimony “related” to this issue should be “excluded” on remand.

“A spoliation claim cannot be pursued unless the spoliating party was under a duty to preserve evidence.” Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App. 801, 807 (6) (748 SE2d 281) (2013) (citations and punctuation omitted).

[T]o meet the standard for proving spoliation, the injured party must show that the alleged tortfeasor was put on notice that the party was contemplating litigation. The simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation. In other words, “notice of potential liability is not the same as notice of potential litigation.”

Decided July 11, 2014 —

Harris Penn Lowry, Jeffrey R. Harris, Stephen G. Lowry, Madeline E. McNeeley, Hicks, Massey & Gardner, Frederick V. Massey, for appellants.

Rutherford & Christie, Carrie L. Christie, Courtney M. Norton, for appellees.

Id. (citations, punctuation and emphasis omitted), quoting Clayton County v. Austin-Powell, 321 Ga. App. 12, 17 (2) (740 SE2d 831) (2013). “The trial court has wide discretion in resolving spoliation issues, and we will not disturb its ruling absent abuse.” Whitfield, 323 Ga. App. at 807 (6) (citations and punctuation omitted).

Even assuming that the volunteer who purged Zion’s personnel files in March or April 2012 did so with notice of the Allens’ suit, the Allens took the opportunity to examine the administrative assistant at her deposition, and her testimony was favorable to them, as when she testified that she found Humphrey suspicious and communicated her concerns to Ellis. Thus we cannot say that the trial court abused its discretion when it held that the Allens had established no significant connection between the allegedly spoliated evidence and the success or failure of their negligence claims. See Sharpnack v. Hoffinger Indus., 231 Ga. App. 829, 831 (499 SE2d 363) (1998) (affirming grant of summary judgment when a plaintiff could not “establish any causal link between the failure of his underlying claims and the alleged misconduct by defendant”).

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

       The Allens’ complaint also alleged several other negligence claims against Zion — ordinary negligence, negligent supervision of a minor, and negligent failure to warn and to intervene.

       Ellis testified that he did not receive Humphrey’s application until Wednesday, October 20, and that he did not examine the application at that time because he had to leave the church to attend to his father, who had become ill and was admitted to the hospital.


text:
    A14A0398.
    ATLANTA NATIONAL LEAGUE BASEBALL CLUB, INC. v. F. F. et al.
    (761 SE2d 613)
   Branch, Judge.

On August 30, 2010, plaintiff M. F, a six-year-old girl, was sitting with her father behind the visitors’ dugout at a home game of appellant Atlanta National League Baseball Club, Inc., known as the Atlanta Braves, when she was struck by a foul ball, suffering a skull fracture and brain injuries. M. F.’s parent and guardian brought this action for negligence against the Braves and three other defendants. After the trial court denied the Braves’ motion to dismiss for failure to state a claim or for summary judgment, the Braves moved for a certificate of immediate review, which the trial court also denied, with the result that the Braves were unable to pursue an appeal. The Braves then moved for a declaratory judgment as to the applicable standard of care. The trial court denied this motion but granted a certificate of immediate review as to it. Having granted the Braves’ application for interlocutory review of the trial court’s denial of their motion for declaratory judgment, we find that such relief is not appropriate at this stage of the proceedings. We therefore affirm.

The relevant facts are not in dispute. At some point before the 2010 season, the Braves added netting to portions of both dugouts to protect players from balls leaving the field of play. At the game held at Turner Field on August 30, 2010, safety netting behind home plate protected 2,791 of the stadium’s 49,856 seats, but did not extend to the seats directly behind the dugouts on either side of the field. 488 protected seats, including 53 groups of four or more seats, remained unsold. Attendance at the game was 18,842. Although a Braves representative testified that M. F. and her family would have been free to move to unsold protected seats behind home plate by notifying an usher, the same representative testified that a surcharge would apply to seats purchased in this way. In the fifth inning, M. F. and her parents, who had received their tickets as a gift, were sitting a few rows behind the visitor’s dugout when a player hit the foul ball that struck M. F.

Plaintiffs filed this negligence action against the Braves on July 16, 2012. The Braves’ answer raised defenses including that their provision of netting only behind home plate amounted to “ordinary care” for purposes of OCGA § 51-3-1. A few weeks later, on August 17, 2012, the Braves filed a motion to dismiss or for summary judgment on grounds including that they had “no duty as a matter of law to protect a spectator at a baseball game from being hit by a foul ball,” or, in the alternative, that if such a duty existed, it must be “limited to protecting the seats behind home plate and protecting a sufficient number of those seats to accommodate the reasonably anticipated number of requests for protected seats.” After a hearing, the trial court denied the motion. The Braves requested a certificate of immediate review, which the trial court denied, noting as it did so that it “[stood] behind [its] ruling” denying the Braves’ motion.

Shortly afterward, the Braves filed a “motion for declaratory judgment” seeking a declaration “as to the standard of care owed to Plaintiffs,” which the Braves argued was “essential to the proper development of the legal issues presented and the trial of this case.” The same motion also noted that it was “in no way seeking reconsideration of [the trial court’s] ruling” on the motion to dismiss or for summary judgment, but that it sought a declaration “so that the parties may move forward with a clear understanding regarding” plaintiffs’ claims. The trial court denied this motion as well, but granted a certificate of immediate review limited to “the matters presented” by the motion for declaratory judgment and “the resulting order” denying that motion. We granted the Braves’ application for an interlocutory appeal.

The Braves argue that the trial court erred when it denied their motion for declaratory judgment and refused to declare the extent of the duty the Braves owe to plaintiffs. More specifically, the Braves argue that the trial court should have declared the so-called “limited duty” or “baseball rule,” in effect in various states since at least 1932, as Georgia law in this context. At this stage of this litigation, we find no error in the trial court’s refusal to make such a declaration of law.

We proceed under the Declaratory Judgment Act, OCGA § 9-4-1 et seq., the purpose of which is “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations[.]” OCGA § 9-4-1. More specifically, OCGA § 9-4-2 provides:

(a) In cases of actual controversy, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.
(b) In addition to the cases specified in subsection (a) of this Code section, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for the declaration, whether or not further relief is or could be prayed, in any civil case in which it appears to the court that the ends of justice require that the declaration should be made; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.
(c) Relief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies.

(Emphasis supplied.) As our Supreme Court noted shortly after the adoption of the Declaratory Judgment Act in 1945: “While [it has often been said that] our declaratory judgment statute ... should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy, since the statute does not take the place of existing remedies.” Mayor of Athens v. Gerdine, 202 Ga. 197 (1) (42 SE2d 567) (1947). Thus “[a] declaratory judgment is not the proper action to decide all justiciable controversies.” Porter v. Houghton, 273 Ga. 407, 408 (542 SE2d 491) (2001); see also Fortson v. Kiser, 188 Ga. App. 660 (1) (373 SE2d 842) (1988) (although OCGA § 9-4-2 (c) authorizes declaratory relief even when a party has other legal remedies, “that statute obviously does not require the availability of such relief”).

“The object of [a] declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated.” State Highway Dept. v. Ga. Southern & Fla. R. Co., 216 Ga. 547, 548-549 (2) (117 SE2d 897) (1961) (citation and punctuation omitted). A party seeking such a judgment “must establish that it is necessary to relieve himself of the risk of taking some future action that, without direction, would jeopardize his interests.” Porter, 273 Ga. at 408 (footnote omitted). Thus “[a] declaratory judgment action will not lie where the rights between the parties have already accrued, because there is no uncertainty as to the rights of the parties [or] risk as to taking future action.” Thomas v. Atlanta Cas. Co., 253 Ga. App. 199, 201 (1) (558 SE2d 432) (2001) (citations omitted). It follows from these principles that, as both Georgia appellate courts have held, “ ‘declaratory judgment is not available to a party merely to test the viability of [that party’s] defenses.’ ” Morgan v. Guaranty Nat. Cos., 268 Ga. 343, 345 (489 SE2d 803) (1997), quoting Sentry Ins. v. Majeed, 194 Ga. App. 276 (390 SE2d 269) (1990), aff’d, 260 Ga. 203 (391 SE2d 649) (1990); see also State Farm Fire & Cas. Ins. Co. v. Fuller, 150 Ga. App. 387 (258 SE2d 13) (1979). Where a party seeking declaratory judgment does not show that it “is in a position of uncertainty as to an alleged right, dismissal of the declaratory judgment action is proper; otherwise, the trial court will be issuing an advisory opinion, and the Declaratory Judgment Act makes no provision for a judgment that would be advisory.” Baker v. City of Marietta, 271 Ga. 210, 214 (518 SE2d 879) (1999) (citation and punctuation omitted).

Here, the event giving rise to the Braves’ potential liability has already occurred, and a declaratory judgment is not the proper means by which to test their defense that their observation of the baseball rule, or some variant of it, satisfied their duty of care to plaintiffs. The Braves also have not shown “the existence of any [extraordinary] facts” that would render an adjudication of their rights necessary “in order to relieve [them] from the risk of taking any future undirected action incident to [their] rights, which action without direction would jeopardize [their] interest.” Gerdine, 202 Ga. at 197 (2). Any safety precaution the Braves may take in the future is not incident to their rights as to these plaintiffs, with the result that declaratory relief is not available to the Braves. Id. (reversing denial of demurrer to a property owner’s petition for declaratory judgment concerning a municipal assessment when plaintiff already had an “adequate remedy in law” to contest the assessment); State Hwy. Dept., 216 Ga. at 548-549 (dismissing petition for declaratory relief when railroad had not shown that an adjudication of its rights concerning a right-of-way was necessary to relieve railroad from the risk of taking any future action that might jeopardize its interests). Finally, it is not for this Court to issue an advisory opinion as to acts or omissions that have not yet occurred. Baker, 271 Ga. at 215 (1) (trial court erred in ruling on a petition for declaratory relief when appellant and defendant city had failed to show the existence of a justiciable controversy, or that “circumstances exist which require judicial guidance to protect the city from uncertainty regarding some future act [or conduct]”); OCGA § 9-4-7 (a) (“No declaration shall prejudice the rights of persons not parties to the proceeding.”).

For these reasons, the trial court did not err when it denied the Braves’ motion for a declaratory judgment.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

Decided July 11, 2014.

Schiff Hardin, Leah Ward Sears, Ronald B. Gaither, Swift, Currie, McGhee & Hiers, Bradley S. Wolff, Pamela N. Lee, for appellant.

J. Matthew Dwyer, Jr., Law & Moran, Peter A. Law, E. Michael Moran, Amanda L. Evans, for appellees.

Thomas J. Ostertag, amicus curiae.

       These three other defendants—Liberty-Media Corporation, Major League Baseball, and the Atlanta-Fulton County Recreation Authority — are not parties to this appeal.

       OCGA § 51-3-1 provides that an owner or occupier of property is liable to invitees “for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”

       See, e.g., Brisson v. Minneapolis Baseball & Athletic Assn., 185 Minn. 507, 509-510 (240 NW 903) (1932) (plaintiff spectator seated in unscreened temporary seats behind third base and injured by a foul ball could not recover from the stadium owner, who “exereise[d] the required care” by providing screening “for the most dangerous part of the grandstand and for those who may be reasonably anticipated to desire protected seats”). One court has recently construed the rule to the effect that a stadium owner’s provision of “a sufficient number of protected seats behind home plate to meet the ordinary demand for that kind of seating” discharges the owner’s ‘limited duty” to provide a reasonably safe environment for spectators at baseball games. Benejam v. Detroit Tigers, 246 Mich. App. 645, 651-652 (1) (635 NW2d 219) (2001). Having discharged this duty under this rule, the owner is released from taking “precautions that are clearly unreasonable” and avoids “burgeoning litigation that might signal the demise or substantial alteration of the game of baseball as a spectator sport.” Id. at 654 (3) (citation and punctuation omitted).


author: Boggs, Judge.

text:
    A14A0596.
    CHATMAN v. PALMER.
    (761 SE2d 616)
   Boggs, Judge.

Kimberly Chatman appeals from the trial court’s order transferring primary physical custody of her son to his father, David Palmer. She also appeals from the trial court’s order granting Palmer’s motion for attorney fees and litigation expenses under OCGA § 9-15-14. Because the trial court was without authority to modify permanent custody under a family violence protective order, we reverse. We also vacate the award of attorney fees and remand this case to the trial court to reconsider the award in light of our reversal.

The record reveals that the child was born on August 15, 2003, and that Palmer had legitimated him. In a 2007 “Final Order of Custody and Visitation,” the trial court awarded the parties joint legal custody of the child with Chatman being named the primary physical custodian. The order also set forth Palmer’s schedule of visitation.

The present action began with Chatman’s June 22, 2009 petition for a protective order that alleged Palmer pushed her, grabbed her by the throat, and choked her. She asserted that she was in fear of Palmer because he had threatened her and others, had “alcohol or drug problems,” dangerous weapons, a criminal record, and had been violent in the presence of children. The trial court entered a “Family Violence Ex Parte Protective Order” enjoining Palmer from approaching Chatman or the child and ordering that Palmer not have any contact with the child. Following a hearing, the trial court entered a “Family Violence Twelve Month Protective Order,” effective until July 2, 2010, which allowed Palmer only supervised visits with the child once a person to supervise was found and agreed upon.

On November 10,2010, following a hearing on Chatman’s request for a permanent protective order, the court entered a “Three Year/ Permanent Family Violence Protective Order” pursuant to OCGA § 19-13-4 (c), awarding Chatman full custody of the child and providing that Palmer could have no visitation with the child until a therapist “states in writing that [the] child can visit without fear of physical or mental injury.” The therapist arranged supervised visits with Palmer and the child beginning on April 22, 2011.

In November 2011, Chatman moved to temporarily suspend the supervised visitation alleging that the therapist had left the child unsupervised with Palmer, and during that time Palmer hit the child. Palmer denied the allegations in his response to the motion and characterized Chatman’s motion as “strategic and retaliatory.” In December 2011, the trial court appointed the child a guardian ad litem to assist the court in “reaching relevant decisions concerning custody, visitation, maintenance, education and general welfare of the child raised in this action.”

In February 2012, Chatman filed a motion for contempt of the three-year/permanent protective order. Palmer responded and filed his own motion for contempt. The trial court held a hearing on those motions over the course of two days (April 9 and 13, 2012), and on April 13, 2012, it entered a “Temporary Order of Custody and Visitation” to remain in effect until the expiration of the “Three Year/Permanent Family Violence Protective Order” or other order of the court. This temporary order granted the parties joint custody of the child and named Chatman primary physical custodian (as was originally awarded in the 2007 final order of custody). In finding that there was no credible evidence that Palmer was violent toward the child, the court granted Palmer “transitional supervised visitation” requiring supervised visitation for only the two scheduled visits following the date of the order, with the remaining visitation to be unsupervised at Palmer’s home.

In September 2012, Chatman filed an “Emergency Ex-parte Motion for Suspension or Modification of Visitation” as set forth in the April 2012 temporary order. She asserted that the child’s psychiatrist was of the opinion that “it is not in the child’s best interest to continue unsupervised visitation with his Father,” and that such continued unsupervised visitation would pose a safety risk to the child because of the child’s allegations of “verbal, emotional, and physical abuse” by Palmer. The trial court declined to hold an emergency hearing on the motion, but nevertheless conducted a hearing on “any and all non-jury issues” on October 30, 2012 (continued to November 27). The hearing included the testimony of Chatman, Palmer, the child’s psychiatrist, the guardian ad litem, a psychologist, a family consultant, and a witness for Palmer.

On November 27,2012, the trial court entered a temporary order granting Palmer full temporary custody of the child and prohibiting Chatman from having any visitation with the child pending the entry of the court’s final order. On December 11, the trial court entered a “Final Order of Custody and Visitation” awarding Chatman and Palmer joint physical custody of the child and naming Palmer the primary physical custodian. The court noted that “its earlier findings of family violence may have been improvident,” that Chatman “seeks every opportunity to purposely interfere with the relationship between [Palmer] and [his] son,” and that the only remedy is a change in custody. It is from this order that Chatman appeals.

1. Chatman asserts that the trial court erred in “changing custody in this action for modification of visitation in a permanent protective order.” Chatman is correct that in order to seek a change in primary physical custody, pursuant to OCGA § 19-9-23 (a), Palmer was required to file an action in DeKalb County, Chatman’s county of residence. See Jones v. Jones, 256 Ga. 742, 743 (352 SE2d 754) (1987). That Code section provides that (except in cases not applicable here) “after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.” Moreover, a complaint for custody cannot be made as a counterclaim or in “response to any other action or motion seeking to enforce a child custody order.” OCGA § 19-9-23 (c). “This statute was enacted by the Legislature to curtail the practice criticized in Matthews v. Matthews, 238 Ga. 201 (232 SE2d 76) (1977) allowing the noncustodial parent to relitigate custody in his own jurisdiction.” (Citation omitted.) Kapur v. Roach, 272 Ga. 767, 768 (534 SE2d 420) (2000).

Although Palmer did not file a separate action for custody, the trial court, citing Daust v. Daust, 204 Ga. App. 29 (418 SE2d 409) (1992), found that Chatman waived any defense of lack of jurisdiction or improper venue. Id. at 31. But even assuming that Palmer properly asserted a change in custody and that Chatman waived the defenses of lack of jurisdiction and improper venue, the trial court was without authority to make a change in permanent custody in this temporary protective order action.

This action was initiated not by a complaint or petition from a final order determining permanent custody,* * but by a petition for a temporary protective order. The trial court entered a temporary protective order, and later a permanent protective order, based on allegations of family violence. The court was authorized to do so pursuant to OCGA § 19-13-4. Subsection (a) provides that “to bring about a cessation of acts of family violence,” the trial court may, upon petition, grant a protective order. The court’s order may:

(1) Direct the respondent to refrain from such acts;
(2) Grant to a party possession of the residence or household of the parties and exclude the other party from the residence or household;
(3) Require a party to provide suitable alternate housing for a spouse, former spouse, or parent and the parties’ child or children;
(4) Award temporary custody of minor children and establish temporary visitation rights;
(5) Order the eviction of a party from the residence or household and order assistance to the victim in returning to it, or order assistance in retrieving personal property of the victim if the respondent’s eviction has not been ordered;
(6) Order either party to make payments for the support of a minor child as required by law;
(7) Order either party to make payments for the support of a spouse as required by law;
(8) Provide for possession of personal property of the parties;
(9) Order the respondent to refrain from harassing or interfering with the victim;
(10) Award costs and attorney’s fees to either party; and
(11) Order the respondent to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of family violence.

OCGA § 19-13-4 (a). Subsection (c) gives the court discretion to convert a temporary order to a permanent one upon motion of the petitioner and following a hearing.

As subsection (a) (4) provides, the trial court may award temporary custody or establish temporary visitation rights. See, e.g., Baca v. Baca, 256 Ga. App. 514, 516-517 (2) (568 SE2d 746) (2002). OCGA § 19-13-4 contains no provision for the award of permanent custody, however, and as the trial court acknowledged, “generally the Family Violence Act cannot be the vehicle used to modify custody.” We find no authority allowing for a change in permanent custody under these circumstances .Had the legislature intended to include a change in permanent custody in the list of options available to the trial court under OCGA § 19-13-4 (a), it could have done so specifically. We therefore hold that the court was without authority to modify permanent custody under the protective order notwithstanding any waiver of personal jurisdiction and venue. Cf. Perlman v. Perlman, 318 Ga. App. 731, 731-733 (1), 738 (4) (734 SE2d 560) (2012) (father filed petition for change in custody as well as petitions for family violence protective orders; discussing distinction between remedy in custody action and remedy of protective order).

The trial court did have the discretion, however, to modify the permanent protective order or to terminate the order returning the parties to the status quo of the 2007 final order of custody. See, e.g., Mandt v. Lovell, 293 Ga. 807, 809-810 (750 SE2d 134) (2013) (trial court has discretion to decrease duration of protective order when appropriate and to terminate such order when material change in circumstances occurs). While the court may have correctly concluded that there was evidence of a material change in condition affecting the welfare of the child, it simply cannot grant a change in permanent custody based on that factual finding, but must rather exercise its broad discretion pursuant to the permanent protective order. If Palmer still desires a change in permanent custody, he must file a separate action in DeKalb County.

We therefore vacate that portion of the trial court’s order awarding Palmer primary physical custody of the child, and remand this case for an order on the matter consistent with this opinion.

Decided July 11, 2014.

Jeanney M. Kutner, Alison K. Arce, for appellant.

Nailah Grant McFarlane, for appellee.

Chatman’s remaining argument is rendered moot by our reversal here.

2. Chatman also challenges the trial court’s award of attorney fees to Palmer. Palmer sought attorney fees and litigation expenses pursuant to OCGA §§ 19-9-3, 19-6-2, and 9-15-14. Following a hearing, the trial court awarded fees pursuant to only OCGA § 9-15-14, finding that Chatman’s “claims and positions asserted lacked any justiciable issue of law or fact that could be reasonably believed,” and that Chatman “brought these allegations before the Court for purposes of harassment of [Palmer].”

While the trial court is authorized to award fees under OCGA § 9-15-14 for frivolous claims and defenses in an action involving a family violence protective order, see generally Dalenberg v. Dalenberg, 325 Ga. App. 833, 834-836 (1) (755 SE2d 228) (2014), and may have properly done so here, it incorporated by reference its final order of custody, and we have held in Division 1 that the court was without authority to make a permanent custody ruling in this case. Under these circumstances, out of an abundance of caution, we vacate the award of attorney fees and remand to the trial court for further consideration in light of our holding in Division 1.

Judgment reversed in part and vacated in part, and case remanded with direction.

Barnes, P. J., and Branch, J., concur.

       Chatman and Palmer were never married.

       On April 13, 2012, in the hearing on visitation under the three-year/permanent protective order, Palmer testified that he wanted “joint physical custody today.” In the November 2013 hearing, Chatman’s counsel stated that Palmer’s counsel “has now raised the issue that they are moving forward on their motion trying to seek a change of primary physical custody.” But Palmer’s counsel made no such motion nor was there a petition for a change in permanent custody pending.

        It appears from the record that the trial court also believed a change in permanent custody was properly before it. At the conclusion of the April 13 hearing on visitation, the court noted that the guardian ad litem’s report stated that “the father says he wants full custody.” The court explained that it was tempted to give Palmer full custody “because that’s how strongly I believe that the mother has done her best to alienate the father and son.” In awarding Palmer primary physical custody of the child, the court relied heavily on the testimony of a psychologist who did not examine the child but concluded that a change in custody is a remedy in the case of a child suffering from Parental Alienation Syndrome.

       See, e.g., Andersen v. Farrington, 291 Ga. 775 (731 SE2d 351) (2012) (action for contempt of divorce decree that set forth permanent custody award and appended motion for change in custody); Kapur, supra, 272 Ga. at 767 (action for contempt of divorce decree that set forth permanent custody award and petition for sole custody); Daust, supra (action for contempt of order that set forth permanent custody award).

       OCGA § 19-13-2 provides that the superior court of the county where the respondent resides shall have jurisdiction over petitions seeking relief from family violence. As Palmer resided in Cobb County, the superior court of that county properly had jurisdiction over the matter.

       We note that Palmer did not seek fees pursuant to OCGA § 19-13-4 (a) (10) (award of costs and attorney fees pursuant to a protective order).


text:
    A14A0609.
    MORGAN v. FORDHAM.
    (761 SE2d 621)
   Boggs, Judge.

Following the January 2005 divorce of Venus Morgan and David Fordham, Morgan was awarded sole physical custody of the couple’s children and jointly shared legal custody of the children with Ford-ham. In 2013, the trial court determined that it was in the children’s best interest to give Fordham physical custody of the children, and Morgan appeals. Because it appears from the trial court’s order that it modified custody based upon an erroneous theory of law, we vacate the trial court’s order and remand this case to the trial court for consideration of all factors required to modify custody.

On February 22, 2012, Fordham filed a petition for modification of custody in which he alleged a substantial change in circumstances and specifically contended that Morgan used corporal punishment inappropriately, had put the eldest minor child out of the home on several occasions, and that Morgan’s new husband was incarcerated and would be residing in the same home with the children upon his release. On December 5, 2012, Fordham filed a motion for contempt and amended his custody modification petition. Fordham complained that Morgan was in contempt of the divorce decree in that she had wilfully denied him visitation with his children, and also alleged that Morgan had medically neglected the oldest child.

On April 22, 2013, the trial court held a hearing and afterward entered an order stating: “After considering the evidence, including the guardian ad litem’s report, and the law, this Court finds that it is in the best interest of the parties’ minor children for Mr. Fordham to have sole physical custody.” The trial court also ordered Morgan to pay child support, and further ordered that the children were not to visit Morgan’s current husband in prison, or upon his release “be around this man at any time, unless this Court modifies this provision in an order.” Nowhere in the trial court’s order, however, does it refer to the legal requirement for material changes in conditions and circumstances substantially affecting the interest and welfare of the child. See Todd v. Casciano, 256 Ga. App. 631, 632-633 (1) (569 SE2d 566) (2002); OCGA § 19-9-3 (b). Nor does it make any factual findings regarding such material changes.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child. If the record contains any reasonable evidence to support the trial judge’s decision on a petition to change custody, it will be affirmed on appeal. Although trial courts have wide discretion in change of custody proceedings, that discretion is not without limits.

(Citations and footnotes omitted.) Durham v. Gipson, 261 Ga. App. 602, 605 (1) (583 SE2d 254) (2003).

Although Morgan complains on appeal that the trial court did not make any factual findings supporting the change in custody, unless requested by either party, the judge is not required to include factual findings in its order, and it does not appear that either Morgan or Fordham asked for such findings. See Weickert v. Weickert, 268 Ga. App. 624, 629 (2) (602 SE2d 337) (2004); OCGA § 19-9-3 (a) (8) (“If requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge’s decision in making an award of custody including any relevant factor relied upon by the judge.”). Even in the absence of such a request, however, existing precedent requires that we vacate the trial court’s order.

In Johnson v. Hubert, 175 Ga. App. 169 (333 SE2d 21) (1985), we addressed a similar order and wrote:

In the case sub judice, as reflected in the trial court’s findings of fact and conclusions of law, the trial court awarded custody of the child to the plaintiff father solely upon the conclusion that it was in the “best interest and welfare of the child” without first finding “a change in material conditions or circumstances of the parties or the child, subsequent to the original decree of divorce and award of custody.” Although the evidence presented in the trial court may have been sufficient to support a change of custody (of which we cannot make a determination in the absence of a transcript), it appears that the trial court failed to apply the complete correct legal standard in this case. Accordingly, we must reverse the judgment in the case and remand to the trial court for proceedings consistent with this opinion.

Id. at 170 (1). Likewise, though in a different factual context, this court vacated a trial court’s order dismissing a plaintiff’s complaint based upon the doctrine of judicial estoppel, because the trial court’s order did not list one of the factors that can be used to apply the doctrine of judicial estoppel. Daniel v. Fulton County, 324 Ga. App. 865 (752 SE2d 1) (2013). We explained that

Decided July 11, 2014.

Knight & Mitchell, Jennifer L. Knight, for appellant.

Prince A. Brumfield, Jr., for appellee.

[wjhere, as here, it appears from the trial court’s stated explanation for its ruling that it engaged in an incomplete exercise of discretion based on an erroneous theory of law, the proper remedy from this court is to remand the case to the trial court for its full consideration of the appropriate factors. [Cits.]

Id. at 867.

The dissent in Daniel by the author of this opinion advocated against returning a case to the trial court when the record fails to establish that the trial court affirmatively ruled based upon an erroneous legal theory. Id. at 868-870 (1). While we believe that the presumption of regularity should be applied to affirm an order that merely fails to discuss a portion of an applicable legal standard, this view did not prevail in Daniel. We therefore are bound to apply the majority’s decision in Daniel to the case now before us.

We take this opportunity, however, to question once again the wisdom of this court’s position that a trial court’s order should be vacated based upon what is not contained within the trial court’s order. This position fails to recognize this court’s obligation to apply the presumption of regularity on appeal, discourages a trial court from providing any explanation of its reasoning to the parties, and encourages the issuance of boilerplate one-sentence orders.

Judgment vacated and case remanded with direction.

Branch, J., concurs. Barnes, P. J., concurs in judgment only.

       At time of the hearing, the children were 13 and 10.

       We note that Morgan attached several exhibits to her appellate brief, including a “Notarized Child Support Arrearage Statement.” But pursuant to Court of Appeals Rule 24 (g), “[d]ocuments attached to an appellate brief, which have not been certified by the clerk of the trial court as a part of the appellate record and forwarded to this Court, shall not be considered on appeal.” As this document was not certified by the clerk of the trial court as part of the appellate record, we can cannot consider it on appeal. See Gateway Atlanta Apts. v. Harris, 290 Ga. App. 772, n. 1 (660 SE2d 750) (2008).