author: ELLINGTON, Presiding Judge.

text:
    A13A1578.
    KING v. WORTH COUNTY BOARD OF EDUCATION.
    (749 SE2d 791)
   ELLINGTON, Presiding Judge.

Pursuant to a granted application for discretionary review, Calvin King appeals from the order of the Superior Court of Worth County affirming the Worth County Board of Education’s decision not to renew King’s teaching contract. King contends that the superior court erred, and that the local school board’s decision must be reversed. He contends that the school board’s decision was based upon inadmissible evidence and that he was not given sufficient notice of the grounds for the nonrenewal of his teaching contract. Finding no error, we affirm.

“Not unlike the State Board and the superior court, this Court as an appellate body applies the ‘any evidence’ standard of review to the record supporting the initial decision of the Local Board.” (Citations omitted.) Chattooga County Bd. of Ed. v. Searels, 302 Ga. App. 731, 732 (691 SE2d 629) (2010); OCGA § 20-2-1160 (e); Terry v. Houston County Bd. of Ed., 178 Ga. App. 296, 297 (342 SE2d 774) (1986) (accord). “Courts are reluctant to substitute their judgment for that of a school board where its exercise of judgment does not violate the law. We presume that the actions of the board are not arbitrary and capricious, but are reasonable unless there is clear evidence to the contrary.” (Citation omitted.) Brawner v. Marietta City Bd. of Ed., 285 Ga. App. 10, 15 (646 SE2d 89) (2007); see also Moulder v. Bartow County Bd. of Ed., 267 Ga. App. 339, 340 (599 SE2d 495) (2004) (accord). Our review is deferential because

[s]tates and local authorities have a compelling, legitimate interest and broad discretion in the management of school affairs. Moreover, teachers and principals are considered professionals whose services are affected with the public interest. It follows that state and local authorities have a legitimate interest in securing the employ only of those fit to serve the public interest.

(Citation and punctuation omitted.) Terry v. Houston County Bd. of Ed., 178 Ga. App. at 297.

The record contains the following relevant facts. King was a school teacher employed by the Worth County school system during the 2010-2011 school year. Because he had failed to renew a certificate required for his continued teaching at the high school level, the school system transferred King to the Worth County Middle School to monitor the “in-school suspension” (“ISS”) classroom for the 2010-2011 school year. An ISS teacher does not instruct students; rather, the ISS teacher monitors students sent into the detention program to make sure that they are completing the course work assigned by their classroom teachers.

In April 2011, the superintendent of the Worth County schools advised King that the school system would not be renewing his contract. After King requested a hearing, the superintendent sent him a letter detailing the reasons for the nonrenewal and listing 39 potential witnesses against him. The letter alleged that he was subject to dismissal under Georgia’s Fair Dismissal Act, OCGA § 20-2-940 et seq., based upon allegations of insubordination, incompetence, wilful neglect of duties, and a physical altercation with a student, all of which the superintendent alleged occurred during the 2010-2011 school year. The letter further asserted that, “[ajlthough now exacerbated, [King has] had these type problems for the past eight years,” and that he has received numerous letters of correction, two reprimand letters, and several professional development plans.

After a hearing, the local school board found that King had been, during his 2010-2011 contract year, insubordinate and incompetent, and that he had wilfully neglected his duties to an extent that constituted good and sufficient cause to justify the nonrenewal of his contract. The record evidence shows that, during the 2010-2011 school year, King had disregarded school policies and ISS class protocols and had engaged students in ‘busy work” instead of ensuring that they had completed their prepared lessons. The record supports the board’s finding that King had disregarded school policy by failing to properly monitor his students, and the record shows that he had been tardy to the classroom on several occasions, that he had left his classroom unattended repeatedly, and that he had allowed his students to roam the school grounds unsupervised. The record shows that King disregarded school policy by failing timely to conduct and to report roll calls that were necessary to determine if students were in the classroom. The record also shows that King did little to assist the students in completing their lessons, often allowing them to sleep or to play in what was described as a “disorderly” classroom. King also admitted that, on September 17, 2010, he grabbed a female student’s shirt collar in an angry reaction to her bringing a cookie to class and that he was formally reprimanded for that act.

During the school year, the principal, administrators, and teachers wrote to or met with King on a number of occasions to discuss these problems, to make suggestions, or to prepare professional development or remediation plans for him. The principal asked another ISS teacher and a school psychologist to help King develop strategies for managing his class and for satisfying the school’s policies and protocols. Despite these efforts, King’s problems persisted. Moreover, King was occasionally rude, disrespectful, or belligerent to his co-workers and the principal. The record shows that King failed his February and March 2011 teacher evaluations, rarely meeting expectations and usually falling far short of them.

Finally, the board considered evidence showing that King’s problems managing the ISS students were unique to him, rather than a problem with the design of the ISS class, and that King had a history of poor performance as a teacher. For example, the principal of the school where King was previously employed testified that he had had “constant problems” with King over a six-year period, including his tardiness, his failure to follow school protocol, and his inability to handle even minor disciplinary problems involving students. King’s conduct had, over the years, resulted in a number of reprimand letters.

Based on the above evidence, the local school board affirmed the school system’s decision not to renew King’s teaching contract. King appealed the decision to the State Board of Education, which reversed. The State Board concluded that the local board had erred by considering evidence of incidents — performance evaluations, letters of reprimand, and professional development plans — from previous contract years. The State Board concluded that the local board’s consideration of these incidents was improper because it had not received a “limiting instruction” explaining that it could only consider the prior incidents for the sole purpose of establishing a “course of conduct” and because the local board gave “equal weight” to the prior incidents in reaching its decision. The local board appealed the State Board’s decision to the superior court, which reversed, finding that there was sufficient evidence to support the local board’s decision. In its order, the superior court stated that, because evidence of incidents from prior contract years was admissible, the weight to be given such evidence was a matter that fell within the discretion of the local board. The court also disagreed with the State Board’s finding as to the purposes for which the local board considered such evidence, stating that “the language used by the local board indicates that it considered the evidence as evidence of course of conduct or pattern of behavior[.]” King appealed from this order.

1. King contends that the local school board erred in not renewing his teaching contract because it considered evidence concerning conduct which occurred prior to the issuance of his 2010-2011 teaching contract. Although the record shows that the local school board did, indeed, consider evidence of such conduct, the evidence was properly admitted under the circumstances.

In Moulder v. Bartow County Bd. of Ed., 267 Ga. App. at 345-346, we noted that the State Board, in interpreting the Fair Dismissal Act, had concluded that “[e] vidence of incidents that occurred before a contract renewal can be presented for the purpose of establishing a course of conduct, but such incidents cannot be used to recommend against renewal in a subsequent year.” (Citations and punctuation omitted.) The record demonstrates that the local board abided by this rule.

In this case, at the beginning of the hearing, the attorney for the superintendent stated that he was not offering evidence from past contract years as the basis for not renewing King’s teaching contract, but, rather, to show that King had a “continuing problem” that needed to be placed in its larger context. Indeed, the letter notifying King of the grounds for nonrenewal set forth specific incidents from the 2010-2011 contract year only. The notice, however, went on to inform King that he had “had these type problems for the past eight years.” Of the nine witnesses who testified against King, only two (a princip al and an assistant principal) offered evidence that King had been reprimanded in the past for similar behavior. Further, the local board’s decision not to renew King’s contract was based upon and supported by evidence of incidents that occurred during the 2010-2011 contract year. Only one paragraph at the end of the board’s seven-page order is devoted to conduct that occurred prior to the contract renewal, and the local board prefaced that discussion with the statement that “[t]hese problems are not new to Mr. King.”

Although there is no “limiting instruction” in the record concerning the course-of-conduct evidence, it is not necessary for the local board or the parties to invoke such talismanic language. For purposes of appellate review, what matters is this: The local board’s decision must be supported by some evidence that the teacher, principal, or other employee having a contract for a definite term acted in a manner that would authorize dismissal under the provisions of the Fair Dismissal Act, as alleged in the required notice, during the current contract term. See Moulder v. Bartow County Bd. of Ed., 267 Ga. App. at 345-346. Any evidence from a previous contract term is admissible if it is relevant to show that the violation which was alleged to have occurred during the current term was part of a course or a pattern of actionable conduct. See id. As we explained above, the weight that the local board assigns to that course-of-conduct evidence is within the exercise of its discretion. It is not the function of this Court, nor of lower appellate tribunals, to substitute their judgment for that of the local school board where the exercise of that discretion does not violate the law. Brawner v. Marietta City Bd. of Ed., 285 Ga. App. at 15; see also Moulder v. Bartow County Bd. of Ed., 267 Ga. App. at 340 (accord). Accordingly, given that the record evidence satisfies these criteria, we affirm the decision of the local board.

2. King also contends the school board’s notice to him of the grounds for the nonrenewal of his contract was insufficient. We disagree.

OCGA § 20-2-940 (b) provides, in relevant part, that, before a “teacher, administrator, or other employee having a contract of employment for a definite term” may be discharged,

written notice of the charges shall be given at least ten days before the date set for hearing and shall state: (1) The cause or causes for his or her discharge, suspension, or demotion in sufficient detail to enable him or her fairly to show any error that may exist therein; [and] (2) The names of the known witnesses and a concise summary of the evidence to be used against him or her.

The notice, which King was given a month in advance of the scheduled hearing, advised him of the specific grounds for the non-renewal of his contract (insubordination, wilful neglect of duties, incompetency, and good and sufficient cause), a detailed summary of the numerous complaints against him, as well as the names of the witnesses who might be called to testify against him regarding those complaints. The notice advised King that, in addition to witness testimony, certain documents, such as letters of reprimand and professional development plans, might be offered as evidence. Moreover, the notice highlighted several specific incidents from the 2010-2011 contract year that might be offered as evidence in support of the grounds for nonrenewal. The notice also informed King that he had “these type problems for the past eight years” as evidenced by “numerous letters of correction and two reprimand letters as well as several professional development plans prepared for you.” We note that King never asked for a more definite statement of the grounds for the nonrenewal of his contract or for a continuance, that he thoroughly cross-examined each of the witnesses against him, and that he testified in his own defense and submitted 40 exhibits in support of his case.

The notice given complied with OCGA § 20-2-942 (b). It was timely and sufficient to allow King to show any error that may have existed in the grounds set forth for the nonrenewal of his contract. This claim of error is without merit.

Decided October 9, 2013.

Herbert W. Benson, for appellant.

Norman J. Crowe, Jr., for appellee.

Judgment affirmed.

Phipps, C. J., and Branch, J., concur.

       Under the Act,
      certain professional employees of a school district are afforded special procedural rights, commonly referred to as “tenure rights,” when the school district decides not to renew their annual employment contract for a subsequent school year. These procedural rights include the right, upon timely written request by the school employee, to receive written notice of the reasons for the nonrenewal, and the right to a hearing before the local board of education to contest those reasons. OCGA §§ 20-2-940 (b), (e); 20-2-942 (b) (2). The written notice receivedby the school employee also must contain specific information informing the employee of his or her procedural rights. OCGA § 20-2-942 (b) (2).
      (Footnote omitted.) Patrick v. Huff, 296 Ga. App. 343, 345 (1) (674 SE2d 398) (2009).

       OCGA § 20-2-940 (a) sets forth eight grounds upon which the contract of employment of a teacher, administrator, or other employee having a contract for a definite term may be terminated by a local board of education. These eight grounds, in summary, are:
      (1) Incompetency; (2) Insubordination; (3) Willful neglect of duties; (4) Immorality; (5) Inciting, encouraging, or counseling students to violate any valid state law, municipal ordinance, or policy or rule of the local board of education; (6) To reduce staff due to loss of students or cancellation of programs . . . ; (7) Failure to secure and maintain necessary educational training; or (8) Any other good and sufficient cause.

       The record shows that King had been provided a copy of the school handbook, had been advised of school policy and ISS class protocols, and had attended teacher work days to prepare for monitoring the class.

       Pursuant to OCGA § 20-2-1160 (c), any party aggrieved by the decision of the State Board may appeal to the superior court of the county wherein the local board is situated. Further, subsection (e) states that “[n] either the state board nor the superior court shall consider any question in matters before the local board nor consider the matter de novo, and the review by the state board or the superior court shall be confined to the record.” Thus, when reviewing decisions of a local board, both the State Board and superior court sit as appellate bodies applying an “any evidence” rule to the facts of the case. Ransum v. Chattooga County Bd. of Ed., 144 Ga. App. 783, 785 (5) (242 SE2d 374) (1978).

       This evidentiary rule derives from a case styled Peterson v. Brooks County Bd. of Ed., (State Board of Education; Case No. 1990-29; decided December 13, 1990), rev’d on other grounds, Brooks County Bd. of Ed. v. Peterson (Superior Court of Brooks County; Civil Action No. 91-CV-43; decided August 2, 1991). As we explained in Moulder, the State Board had concluded “that incidents that occur before a contract renewal can be presented for the purpose of establishing a course of conduct, so that the previous incidents could be presented against [the teacher] if termination proceedings are initiated based on any subsequent incidents of misconduct by [him or] her.” Moulder v. Bartow County Bd. of Ed., 267 Ga. App. at 343.

       For example, Kang was informed:
      You have on numerous occasions left your class unattended and continued to do so on occasions after having been instructed by your principal and other administrators not to do so. You have used inappropriate discipline on your students on numerous occasions. . . . You have been instructed not to ask other teachers to monitor your classroom nor ask the school police officer to do so, but you have nevertheless done so. . . . You have failed to follow protocol with respect to the collection and return of teacher assignments notwithstanding numerous directions from your principal and school administrators.

       For example, King was informed:
      On September 13, 2010, a student walked out of your classroom on three separate occasions. On or about September 17, 2010, you had a physical altercation with your student . . . wherein you ended up grabbing the front of her shirt in an argument about a cookie. On or about November 18,2010, there was a substantial problem about your students throwing markers and other objects around the classroom during class.


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    A13A1300.
    CARLSON v. CARLSON.
    (748 SE2d 304)
   McMILLIAN, Judge.

Deniz Carlson appeals the trial court’s order finding her in criminal contempt of a modification order concerning child custody and visitation, which arose out of her 2008 divorce from Robert Louis Carlson.

“The appropriate standard of appellate review for a criminal contempt conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation and punctuation omitted.) In re Longino, 254 Ga. App. 366, 368 (562 SE2d 761) (2002).

On May 3, 2012, the trial court entered an order modifying custody of and child support for the couple’s three children (the “May Order”). Pursuant to the order, Robert and Deniz shared joint legal custody of the children, but Robert was granted primary physical custody, with visitation granted to the mother. On August 29, 2012, Robert filed a motion for contempt, asserting that Deniz had violated the May Order by failing to return the couple’s 15-year-old daughter after her scheduled visitation. Robert also requested an emergency hearing on the motion. Following the emergency hearing, on September 14, 2012, the judge ordered the child returned to her father and suspended the mother’s visitation rights with that child until the next hearing on the issue (the “September Order”).

On September 21, 2012, the trial court held a hearing on the motion for contempt. Deniz testified that her daughter told her that she wanted to live with Deniz instead of her father. Deniz contacted her lawyer who prepared an affidavit of election, which the daughter signed. The affidavit indicated that the daughter was more comfortable at her mother’s house “where there were fewer distractions,” and her father’s house was “too chaotic.” The affidavit also contained the daughter’s “wish” that the trial court authorize her to live with her mother while the proceedings regarding her custody were ongoing. At the time the daughter signed the affidavit, however, no custody proceedings were pending. Deniz determined, based upon that signed affidavit and after discussing the matter with her attorney, that she did not have to return her daughter to her husband despite the May Order.

Robert testified, however, that the May Order was entered after he filed a motion to modify custody based upon earlier affidavits he obtained from the couple’s three children indicating that two of them wanted to stay with each parent 50 percent of the time and one wanted to stay with Robert 100 percent of the time. Robert testified that in response to that motion and the children’s affidavits, Deniz and her attorney insisted that Robert abide by the then existing custody order until the judge had a chance to issue a ruling on the modification request.

After hearing the testimony, the trial court found that Deniz’s statement that she thought she could ignore the May Order based upon her daughter’s affidavit lacked credibility. The court noted that “these parties have been in front of me many times and are both well aware that you can’t modify a Court order on your own.” The trial court also found that the mother’s testimony that her attorney told her to disobey the court’s order to be “totally incredible.” Based upon these findings, the trial court found Deniz to be in criminal contempt of the court’s order by wilfully refusing to comply with the order. The court noted that once she was served with the September Order, she returned the couple’s daughter, indicating that her failure to return the child earlier reflected a decision to disobey the Court’s May Order. The court then ordered Deniz to be incarcerated for five hours, until 5:00 p.m. that day. He also ordered the parties not to discuss Deniz’s incarceration with any of the children. The trial court entered a written order incorporating these findings on September 25, 2012 (the “Contempt Order”).

On appeal, Deniz asserts that (1) she was not properly apprised of her Fifth Amendment rights against self-incrimination before testifying at the hearing; (2) the Contempt Order fails to find her guilty beyond a reasonable doubt; (3) she was entitled to a jury trial on her motion for contempt because her violation of the order was a specific crime under OCGA § 16-5-45; (4) the evidence was insufficient to support the trial court’s finding that she was in contempt; and (5) public policy and the children’s best interest warrant against incarceration.

1. Deniz argues that because Robert’s motion alleged that she was in wilful contempt of the May Order and asked that she be “sanctioned appropriately to include incarceration and the payment of attorney fees,” the contempt hearing was akin to a criminal proceeding, entitling her to her Fifth Amendment rights against self-incrimination. She asserts that the trial court erred in failing to determine on the record whether she was waiving such rights.

Georgia law recognizes a distinction between “civil” or “criminal” contempt, although

[a]cts of contempt are neither civil nor criminal.... Once an act has been determined to constitute contempt of court, the action the court takes to deal with the contempt determines whether the contempt is deemed “criminal” contempt or “civil” contempt, a distinction historically made by both appellate courts in this state. The distinction between the two is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.

(Citations and punctuation omitted; emphasis in original.) Murtagh v. Emory Univ., 321 Ga. App. 411, 415 (2) (741 SE2d 212) (2013).

Here, the trial court found Deniz to be in criminal contempt and accordingly punished her unconditionally for what it found to be her prior act of contumacy. “Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both.” (Citation and punctuation omitted.) Garland v. State, 253 Ga. 789, 790 (1) (325 SE2d 131) (1985). Thus, Deniz is correct that in proceedings for criminal contempt, the defendant is entitled to certain due process rights. “Without deciding what may be the rule in civil contempt, it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself.” Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 444 (31 SCt 492, 55 LE 797) (1911) (relying on Drakeford v. Adams, 98 Ga. 722 (25 SE 833) (1896)). See also In re Alverson, 981 P2d 1123 (Colo. App. 1999); In re Witherspoon, 162 Cal.App.3d 1000 (209 Cal.Rptr. 67) (1984); In re Marriage of Betts, 200 Ill.App.3d 26 (558 NE2d 404) (1990).

Nevertheless, “[i]n Georgia, whether or not to testify in one’s own defense is considered a tactical decision to be made by the defendant himself after consultation with his trial counsel and there is no general requirement that a trial court interject itself into that decision-making process.” (Citations omitted.) Burton v. State, 263 Ga. 725, 728 (6) (438 SE2d 83) (1994).

While it may be the better practice to apprise witnesses of their [Fifth Amendment right against self-incrimination], and under some circumstances it must be done, under ordinary circumstances, where no statute requires it, and where the witness possesses ordinary intelligence and is under no duress, the judge need not inform the witness of his constitutional privilege.

(Citations and punctuation omitted.) Coonce v. State, 171 Ga. App. 20, 20 (2) (318 SE2d 763) (1984).

Here, Deniz was represented by counsel at the contempt hearing, and it was up to Deniz and her attorney to make the tactical decision whether to waive her Fifth Amendment rights. The trial court had no duty to advise her of her rights or to determine on the record whether she had decided to waive them. See Schiselman v. Trust Co. Bank, 246 Ga. 274, 277 (2) (271 SE2d 183) (1980). In any event, even if a violation of Deniz’s Fifth Amendment rights had occurred, such a violation “cannot be raised for the first time on appeal.” Id. at 278 (2).

2. And although the Contempt Order does not recite that the trial court found Deniz to be in criminal contempt of the May Order “beyond a reasonable doubt,” we know of no provision, and Deniz points us to none, requiring such a recitation. In the absence of an express statement of the standard applied, “we are obligated to presume that the trial court knows and applies the correct law.” (Citation omitted.) R&R Insulation Svcs., Inc. v. Royal Indem. Co., 307 Ga. App. 419, 436 (7) (a) (705 SE2d 223) (2010). See also Munoz v. American Lawyer Media, 236 Ga. App. 462, 466 (2) (512 SE2d 347) (1999); Green v. Sun Trust Banks, 197 Ga. App. 804, 807 (3) (b) (399 SE2d 712) (1990).

In any event, we find sufficient evidence in the record to support a determination that Deniz wilfully violated the May Order beyond a reasonable doubt. Deniz was aware of the custody and visitation provisions of the May Order, but she made the conscious decision to ignore the order based primarily upon her daughter’s execution of an affidavit expressing her desire to live with her mother. She made this decision despite her insistence the year before that her husband abide by the parties’ earlier custody order, even after all three children had executed affidavits expressing a desire for a different custody arrangement. In light of this evidence, the trial court could have properly found beyond a reasonable doubt that Deniz’s violation of the May Order was wilful, subjecting her to a finding of criminal contempt.

3. Further, contrary to Deniz’s argument, she had no constitutional or statutory right to a jury trial under the facts of this case. Although her conduct in violating the May Order may also have subjected her to punishment for interference with custody under OCGA § 16-5-45 (b) (1) (C), she was not being prosecuted under that statute. Rather, the trial court was considering whether Deniz’s actions constituted criminal contempt of the May Order. Under OCGA § 15-6-8, a superior court’s authority to punish for such contempt is limited to the imposition of fines not exceeding $1,000 and imprisonment not exceeding 20 days, or both, and the United States Supreme Court has determined that no constitutional right to a jury trial exists in cases of contempt imposing punishment of under six months. Codispoti v. Pennsylvania, 418 U. S. 506 (94 SCt 2687, 41 LE2d 912) (1974). See also Dowdy v. Palmour, 251 Ga. 135, 141 (2) (a) (304 SE2d 52) (1983). Moreover, Georgia law provides a statutory right to a jury trial in contempt proceedings only for persons who are subject to imprisonment “for failing or refusing to pay over money under any [court] order, decree, or judgment” where the person denies that he has “power, custody, or control” of such money. OCGA § 15-1-4 (b).

But even if the right to a jury trial existed, Deniz would have waived any such right by failing to demand a jury trial in response to Robert’s motion for contempt and by participating in the hearing on the motion before the judge without a jury. “[A] litigant may impliedly waive the statutory right to a jury trial by his conduct[.]” Affatato v. Considine, 305 Ga. App. 755, 759 (1) (700 SE2d 717) (2010) (jury trial on motion for criminal contempt waived by failure to demand jury trial in response to motions and by participating in request to place hearing on nonjury calendar). See also In re Woodall, 241 Ga. App. 196, 202 (2) (d) (526 SE2d 69) (1999) (right to jury trial in criminal contempt proceeding waived where no evidence existed that party ever asserted such a right).

4. Further, we find no merit to Deniz’s argument that her approximately five-hour incarceration was against public policy and her children’s best interest. OCGA § 16-5-45 (b), which Deniz cited in this appeal, demonstrates that the public policy of this state contemplates that incarceration can be an appropriate punishment for wilful violation of a custody order, as it mandates a minimum one-month incarceration for the first such violation, and longer periods of incarceration for subsequent violations. Moreover, in this case, the trial court ordered Deniz incarcerated only until 5:00 p.m. on the day of the hearing, and directed that no one mention this incarceration to the children. Deniz has failed to demonstrate how such a punishment impacted her children in any way, much less that it had a negative impact on them.

Decided September 23, 2013

Reconsideration denied October 10, 2013.

Christopher C. McClurg, for appellant.

Stephen W. Adkins, Jr., for appellee.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

       The statute provides in relevant part that “[a] person commits the offense of interference with custody when without lawful authority to do so, the person:... [ijntentionally and willfully retains possession within this state of the child . . . upon the expiration of a lawful period of visitation with the child —” OCGA § 16-5-45 (b) (1) (C). The first conviction for such an offense subjects the offender to a fine of between $200 and $500 and imprisonment for not less one month nor more than five months, or both, OCGA § 16-5-45 (b) (2) (A), with increasing punishment for subsequent violations. OCGA § 16-5-45 (b) (2) (B) & (C).


author: Miller, Judge.

text:
    A13A0901, A13A0902.
    DEWRELL SACKS, LLP et al. v. CHICAGO TITLE INSURANCE COMPANY; and vice versa.
    (749 SE2d 802)
   Miller, Judge.

Chicago Title Insurance Company (“CTIC”) sued Dewrell Sacks, LLP (“DS”) and Mara Sacks Dewrell (collectively “defendants”) seeking to recover losses that CTIC suffered as a result of DS’s errors with regard to several real estate closings in Georgia. CTIC raised claims for indemnity and breach of the parties’ title insurance agency contracts and Mara Dewrell’s guaranty agreement, and sought to recover monies owed by DS for the remittance of title insurance policy premiums that DS collected. The defendants denied liability for CTIC’s claims, and raised the defense of res judicata based upon prior litigation in federal court. The defendants also raised several counterclaims including breach of contract, refusal to settle accounts, breach of fiduciary duty, negligence, setoff and recoupment, punitive damages and attorney fees. Following discovery, both parties filed cross-motions for summary judgment. The trial court denied the defendants’ motion for summary judgment on res judicata grounds, finding that this case and the prior federal lawsuit did not arise out of the same transaction or series of transactions. The trial court granted CTIC’s motion for partial summary judgment on the defendants’ counterclaims. The trial court also granted Mara Dewrell’s motion for summary judgment on her claim that the parties rescinded her personal guaranty.

The instant cross-appeals ensued. In Case No. A13A0901, the defendants contend that (1) the trial court erred in denying their motion for summary judgment on the grounds of illegality of the parties’ contract and res judicata, and (2) the trial court erred in dismissing their counterclaims. In Case No. A13A0902, CTIC contends that the trial court erred in granting summary judgment to the defendants on the issue of whether Mara Dewrell’s guaranty had been rescinded. For the reasons that follow, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a [grant or] denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations and footnote omitted.) GEICO Gen. Ins. Co. v. Wright, 299 Ga. App. 280, 281 (682 SE2d 369) (2009).

So viewed, the evidence shows that CTIC and DS had a multistate agency relationship under which DS was allowed to issue title insurance policies in association with real estate closings in Georgia, Tennessee and Florida. In November 2002, CTIC and DS entered into an Issuing Agency Contract (“Agency Contract”) authorizing DS to issue title insurance policies on CTIC’s behalf in Georgia. The Agency Contract included a schedule of rates and remittances, providing that DS was required to remit to CTIC 30 percent of the premiums charged for title policies DS issued. The Agency Contract also included a contemporaneous personal guaranty signed by Mara Dewrell in which she agreed to fully indemnify CTIC for any and all loss it sustained as a result of DS’s failure to perform its duties and obligations under the Agency Contract.

In June 2003, CTIC and DS amended the schedule of rates and remittances to provide that DS was required to remit 25 percent of the gross title premiums it collected, and to provide for a minimum net remittance of $60,000 per calendar year to CTIC. The amendment further provided that the lower 25-percent remittance rate was conditioned upon a policy claims to remittance ratio of 20 percent or less. The parties amended the rate schedule again in February 2004, to provide for a minimum remittance of $75,000 in net premiums per year, and a five percent rebate of gross premiums if DS remitted $100,000 in net premiums per calendar year. The rebate was conditioned upon a yearly claims to remittance ratio of 20 percent or less.

The parties terminated the Agency Contract on August 22, 2005. The termination agreement specifically provided that the obligations required under the terms of the Agency Contract, including payments, liability for claims and provisions for notification of claims would continue and be governed by the Agency Contract.

Case No. A13A0901

1. DS contends that the trial court erred in denying its motion for summary judgment on the grounds of illegality of the Agency Contract and res judicata. We disagree.

(a) Illegality of Contract

DS argues that the Agency Contract is illegal and unenforceable, because the rebate provision which the parties added to the Agency Contract by amendment in February 2004 violated the Real Estate Settlement Procedures Act (“RESPA”), 12 USC § 2607. In support of its argument, DS relies on a series of consent orders and stipulations entered into between CTIC and various regulatory agencies wherein CTIC agreed to comply with RESPA and pay a $5 million civil money penalty.

RESPA prohibits kickbacks and unearned fees in connection with transactions involving federally-related mortgage loans. See 12 USC § 2607. RESPA does not, however, prohibit payments by a title company to its duly appointed agent for services actually performed in the issuance of a policy of title insurance. See 12 USC § 2607 (c); 24 CFR § 3500.14 (g) (1) (ii). Moreover, we need not decide whether the rebate provision in some way violated RESPA, because that provision was clearly severable and, therefore, did not render the entire Agency Contract void and unenforceable. See OCGA §§ 13-8-1 (providing that where the part of a contract which is legal will not be invalidated by the part of the contract which is illegal, if the contract is severable); 13-3-45 (regarding partially void consideration and severability of contracts).

(b) Res Judicata

DS argues that the doctrine of res judicata bars CTIC’s claims in this action because CTIC could have asserted these claims in its prior suit against DS in the United States District Court for the Middle District of Tennessee. Specifically, DS argues that the prior suit involved the same cause of action at issue in this case.

“In determining the claim-preclusive effect of the previous judgment, we apply the law that would be applied by state courts in the State in which the first federal diversity court sits. Accordingly, we apply [Tennessee] law in deciding this issue.” (Citations and punctuation omitted.) BKJB Partnership v. Moseman, 284 Ga. App. 862, 864-865 (1) (644 SE2d 874) (2007).

In Tennessee, “[t]he doctrine of res judicata, also referred to as claim preclusion, bars a second suit between the same parties or their privies on the same cause of action with respect to all issues which were or could have been litigated in the former suit.” (Citation and punctuation omitted.) Creech v. Addington, 281 SW3d 363, 376 (II) (Tenn. 2009). Tennessee courts apply the transactional test set forth in Restatement (Second) of Judgments for determining whether two proceedings constitute the same cause of action. See Hooker v. Haslam, 393 SW3d 156, 165 (IV) (Tenn. 2012). Under the transactional test, two suits “shall be deemed the same cause of action for purposes of res judicata where they arise out of the same transaction or a series of connected transactions.” (Punctuation omitted.) Creech, supra, 281 SW3d at 381 (II) (C).

Contrary to DS’s contention, CTIC’s prior Tennessee suit against DS did not involve the same cause of action. The prior suit involved alleged errors and omissions under the parties’ Tennessee title insurance agency contract, arising from real estate closing transactions that occurred in Tennessee. See Chicago Title Ins. Co. v. Dewrell Sacks, LLP, 2009 U. S. Dist. LEXIS 109757, *2-3 (M.D. Tenn. 2009). CTIC’s suit in this case involves alleged errors and omissions under the parties’ Georgia Agency Contract, arising from real estate closing transactions that occurred in Georgia. Thus, CTIC’s claims in this case do not arise out of the same transaction or series of transactions at issue in the Tennessee action. Accordingly, the trial court properly denied DS’s motion for summary judgment on res judicata grounds.

2. DS contends that the trial court erred in granting partial summary judgment to CTIC on DS’s counterclaims. We discern no error.

(a) Breach of Contract

DS counterclaimed for breach of contract based on CTIC’s failure to pay annual rebates on gross premiums collected by DS. On appeal, DS argues that the trial court erred in finding that CTIC was entitled to judgment as a matter of law on DS’s breach, of contract counterclaim because DS failed to meet the conditions precedent to its entitlement to a rebate under the Agency Contract. Specifically, DS argues that a material issue of fact remains regarding the percentage of gross premiums that DS was required to remit to CTIC.

“The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” (Citation, punctuation and emphasis omitted.) Canton Plaza v. Regions Bank, 315 Ga. App. 303, 306 (1) (732 SE2d 449) (2012). The Agency Agreement as amended in 2004 pertinently provides:

REMITTANCES

For each commitment, policy and endorsement of [CTIC], the order for which was initiated by [DS] and which is issued by [DS] pursuant to this contract, [DS] shall report and remit twenty-five (25%) percent of collected gross title premiums with a minimum net remittance to [CTIC] of $75,000.00 Dollars each calendar year. If [DS] remits $100,000.00 in net premiums in a calendar year, and [DS’s] claims to remittance ratio does not exceed twenty (20%) percent in any calendar year, then [DS] shall receive a rebate of five (5%) percent olí reported gross premiums payable by January 31st the following year.

“Where [, as here,] the language of a contract is plain and unambiguous, ... no construction is required or permissible and the terms of the contract must be given an interpretation of ordinary significance.” (Citations and punctuation omitted.) Richard Bowers & Co. v. Creel, 280 Ga. App. 199, 200-201 (1) (633 SE2d 555) (2006); see also Canton Plaza, supra, 315 Ga. App. at 308-309 (3) (the contract alone is looked to where the language is clear and unambiguous). Although conditions precedent are not favored in interpreting contracts, “we are required under our rules of contract interpretation to attempt to give meaning to all provisions of the contract and look to the whole contract in arriving at the construction of any part.” (Citations and punctuation omitted.) Allen v. Sea Gardens Seafood, 290 Ga. 715, 717-718 (2) (723 SE2d 669) (2012); see also OCGA § 13-2-2. Consequently, where the language of the contract clearly creates such a condition, that condition must be enforced.

Here, the Agency Contract as amended in 2004 clearly and unambiguously required DS to remit 25 percent of the gross title premiums it collected as a condition precedent to the rebate provision. This construction both upholds the plain language of the agreement, and comports with common sense. See Allen, supra, 290 Ga. at 718 (2).

Although the undisputed evidence shows that DS remitted only 22.95 percent of the gross title premiums it collected in 2004 and 2005, DS contends that, as of mid-2005, it was required to remit only 20 percent of the gross premiums it collected. DS relies on a June 2005 purported amendment to the Agency Contract. DS’s reliance is misplaced because the purported amendment was not signed by CTIC, and the amendment contained no language providing that DS was entitled to a rebate in exchange for remittance of only 20 percent of the gross premiums. Accordingly, the evidence shows that DS’s entitlement to any rebates could only have been based on the 2004 amendment. Since the 2004 amendment required DS to remit 25 percent of the gross premiums as a condition precedent to any rebates, and the undisputed evidence showed that DS remitted only 22.9 percent of the gross premiums it collected, CTIC was entitled to judgment as a matter of law on DS’s counterclaim for breach of contract.

(b) Complaint on Account and Money Had and Received

DS contends that the trial court erred in dismissing its counterclaims for money CTIC owed DS on account, and for money had and received. Contrary to DS’s contention, the four-year statute of limitation set forth in OCGA § 9-3-25 applied to its counterclaims for complaint on Account and Money Had and Received. See Gamlins v. A. E. Roberts & Assoc., 254 Ga. App. 763, 765 (2) (b) (564 SE2d 29) (2002) (statute of limitation for suit on account is four years); Macomber v. First Union Nat. Bank, 212 Ga. App. 57, 58 (1) (441 SE2d 276) (1994) (statute of limitation is action for money had and received is four years).

The record shows that the parties terminated the Agency Contract on August 22,2005, and no evidence in the record shows that DS made any payments to CTIC for title insurance policy premiums after September 2005. Accordingly, the record shows that DS’s right of action on its counterclaims accrued and the four-year statute of limitation began to run no later than the last payment that DS made to CTIC in September 2005. See Gamlins, supra, 254 Ga. App. at 765 (2) (b) (statute of limitation began running on date that plaintiff’s right of action accrued); Macomber, supra, 212 Ga. App. at 59 (2) (statute of limitation begins to run on cause of action on date that suit on claim can first be successfully maintained). Since DS did not bring its counterclaims for complaint on account and money had and received until February 8, 2010, more than four years after they accrued, these claims were brought outside the statute of limitation, and the trial court properly granted summary judgment to CTIC on these claims.

(c) Recoupment

We reach a different conclusion with regard to DS’s counterclaim for recoupment. Under Georgia law, “[a] recoupment is a right of the defendant to have a deduction from the amount of the plaintiff’s damages because the plaintiff has not complied with the cross-obligations or independent covenants arising under the contract being sued upon.” (Footnotes omitted.) Automated Print v. Edgar, 288 Ga. App. 326, 330 (2) (654 SE2d 413) (2007). Since DS’s counterclaim for recoupment arose from CTIC’s alleged breach of its obligations under the Agency Contract, it is subject to the six-year statute of limitation set forth in OCGA § 9-3-24. Accordingly, the trial court erred in applying OCGA § 9-3-25’s four-year statute of limitation, and we reverse the grant of summary judgment as to this counterclaim.

(d) In Count V of its counterclaim, DS also asserted claims for Breach of Fiduciary Duty, Breach of Duty to Avoid Self-Dealing, Breach of the Duty of Good Faith and Fair Dealing, Negligence, Negligent Misrepresentation, Unfair and Deceptive Practices, Violation of the Georgia Fair Business Practices Act (“GFBPA”) and Breach of Contract. DS contends that the trial court erred in granting summary judgment to CTIC on all of the claims it brought under Count V, even though CTIC only sought dismissal on DS’s purported claims under GFBPA and RESPA. We agree.

A motion for summary judgment is a vehicle for disposing of a controversy without the necessity of a trial. It is, as the description shows, a summary disposition of the issues in order to efficiently resolve litigation. Nevertheless, due process requires that the respondent not be surprised; rather, that he be given reasonable opportunity to refute the movant’s showing that there are no genuine issues of material fact. Therefore, the procedure is designed to give the opposing party fair opportunity to contradict the supporting material relied upon by the movant.

Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631 (278 SE2d 377) (1981); see also Ferdinand v. City of East Point, 288 Ga.App. 152, 160 (2) (653 SE2d 529) (2007). Here, CTIC moved for summary judgment as to DS’s counterclaims for RESPAand GFBPA violations. The trial court found that DS could not maintain a claim under GFBPA because it failed to show that the Agency Contract is a consumer transaction. The trial court also found that the remaining claims asserted under Count V of DS’s counterclaim were asserted outside the two-year statute of limitation.

Although CTIC did not move for summary judgment on the remaining claims asserted under CountV of DS’s counterclaim, CTIC argues that this Court should sustain the trial court’s ruling regarding the remaining claims under the right for any reason rule. That rule does not apply, however, where as here the movant failed to raise the issue in the trial court and the nonmovant did not have a fair opportunity to respond. See Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013). Based on the record and the hearing transcript, DS did not have a full and fair opportunity to refute the trial court’s findings that its remaining counterclaims under Count V were barred by the applicable statutes of limitation. Consequently, we reverse that portion of the trial court’s order that dismissed Count V of DS’s counterclaim in its entirety, and remand the case for further proceedings consistent with this opinion.

Case No. A13A0902

3. In its cross-appeal, CTIC contends that the trial court erred in granting summary judgment to Mara Dewrell on the issue of whether her guaranty was rescinded. We agree.

Here, in support of her motion for summary judgment, Mara Dewrell filed a contemporaneous affidavit stating that the parties rescinded her guaranty. Mara Dewrell’s affidavit included a copy of the amendment rescinding the guaranty, which was signed by both DS and CTIC’s executive vice president, Erika Meinhardt. CTIC submitted a responsive affidavit stating that it ultimately declined DS’s request to rescind the guaranty. The affidavit also stated that CTIC did not provide DS with the signed copy of the amendment until DS requested, during discovery in this case, that CTIC provide copies of all relevant documents in its files. When viewed in the light most favorable to CTIC as the nonmoving party, the evidence raised a question of fact for the jury regarding whether CTIC intended to rescind the guaranty. Accordingly, we reverse the grant of summary judgment to Mara Dewrell on the issue of whether the parties rescinded her guaranty.

Decided October 10, 2013.

Dewrell Sacks, Tracey K. Dewrell, Hawkins, Parnell, Thackston & Young, Christine L. Mast, Joseph H. Wieseman, for appellant.

Hall, Bloch, Garland & Meyer, Eileen M. Crowley, Weissman, Nowack, Curry & Wilco, Allison C. Jett, Jeffrey H. Schneider, for appellee.

In sum, we affirm the trial court’s denial of DS’s motion for summary judgment on the grounds of illegality of the Agency Contract and res judicata. We affirm the grant of partial summary judgment to CTIC on DS’s counterclaims for breach of contract, complaint on account, and money had and received. We reverse the grant of summary judgment to CTIC on DS’s recoupment counterclaim, and its claims under Count V of its counterclaim other than its claim for GFBPA violations. We also reverse the grant of summary judgment to Mara Dewrell of her claim that the parties rescinded her guaranty.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Ray, J., concur.

       CTIC also sued Tracey Dewrell; however, he was dismissed from the case without prejudice by consent order.

       The district court subsequently granted DS’s motion for reconsideration in part, holding that DS was not properly served in that case. See Chicago Title Ins. Co. v. Dewrell Sacks, LLP, 2009 U. S. Dist. LEXIS 121786, *18 (M.D. Tenn. 2009). The case was ultimately dismissed with prejudice.

       The purported 2005 amendment provided only:
      For each commitment, policy and endorsement of [CTIC], the order for which was initiated by [DS] and which is issued by [DS] pursuant to this contract, [DS] shall report and remit twenty (20%) percent of collected gross title premiums.
      The purported amendment also omitted the language from the prior amendments to the Schedule of Rates and Remittances, requiring a minimum net remittance of gross premiums to CTIC, and the amendment contained no reference to a rebate provision.

       Contrary to DS’s contention, the December 2009 monthly statements from CTIC do not show that DS made any payments to CTIC after September 2005. Even assuming that either of these statements applies to DS’s account under the Agency Contract, the statements, at best, show an old account balance that CTIC was carrying forward.

       DS titled this claim as a counterclaim for “Set-off and Recoupment.” DS does not, however, seek to setoff an independent debt owed to it by CTIC. Accordingly, this claim sets forth only a cognizable action for recoupment. See Automated Print v. Edgar, 288 Ga. App. 326, 330 (2) (654 SE2d 413) (2007).

       DS affirmed in its response to CTIC’s motion for partial summary judgment that it was not asserting a RESPA claim, and DS does not challenge the grant of summary judgment to CTIC on its GFBPA counterclaim.


text:
    A13A1099.
    PATEL et al. v. AMERIS BANK.
    (749 SE2d 809)
   Miller, Judge.

Rajesh C. Patel (R. C. Patel) and Mukesh C. Patel (M. C. Patel) appeal from the trial court’s grant of summary judgment to Ameris Bank on their guaranties of a promissory note signed by Vipulkumar M. Patel (V. M. Patel).

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. OCGA § 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) O’Neal v. State Farm Mut. Auto. Ins. Co., 243 Ga. App. 756 (533 SE2d 781) (2000).

So viewed, the record shows that, on March 22, 2007, V. M. Patel executed a Promissory Note for Loan No. 22-462 in the amount of $2,625,000 to Southern Horizon Bank with a maturity date of March 22, 2008. That same day, R. C. Patel and M. C. Patel signed Commercial Guarantees of that Promissory Note. Each guaranty contained, in “Miscellaneous Provisions,” a paragraph designated “Successors and Assigns” which stated that “[s]ubject to any limitations stated in this Guaranty on transfer of Guarantor’s Interest, this Guaranty shall be binding upon and inure to the benefit of the parties, their successors and assigns.”

On March 22, 2008, V. M. Patel renewed the Promissory Note for Loan No. 22-462, in the amount of $2,625,000, with a maturity date of March 22, 2009. The renewed Note listed the lender as “High Trust Bank, Successor to Southern Horizon Bank by name change dated April 2, 2007.” On April 20, 2009, V. M. Patel signed a Change in Terms Agreement for Loan No. 22-462, for the same amount, changing the maturity date to July 20, 2009. This agreement also listed the lender as “High Trust Bank.”

A certified copy of the Certificate of Amendment Name Change filed with the Secretary of State’s Office was filed below, reflecting the change of name from Southern Horizon Bank to High Trust Bank.

A motion to substitute Ameris Bank as plaintiff was supported by certified copies of the assignment by the FDIC of the Note, renewal Note, and change in terms to Ameris Bank. The trial court granted this motion, substituting Ameris Bank on September 18,2012, and no appeal has been taken from this order.

In support of the motion for summary judgment, Ameris Bank provided two affidavits of James Hendry, Jr. The first identified him as executive vice president of High Trust Bank and provided the Loan History Report of Loan No. 22-462 showing the principal and interest due. In the second affidavit, Hendry averred that “[o]n April 2, 2007, Southern Horizon Bank became High Trust Bank by name change [,]” that High Trust was seizedby the FDIC on July 15, 2011, andthatthe FDIC transferred its interest to Ameris Bank. Hendry further averred that the Note and Guaranties were assigned to Ameris.

Requests for Admissions were served on R. C. and M. C. Patel requesting admissions that V. M. Patel defaulted on the Note by failing to pay each payment when due and by failing to pay the Note upon maturity; that V. M. Patel was indebted to the plaintiff in the principal amount of $2,625,000, plus interest and costs; and that R. C. and M. C. Patel were indebted to the plaintiff in the same amount plus interest and costs. Because neither R. C. Patel nor M. C. Patel responded or objected to these Requests for Admissions, “the pertinent facts and legal conclusions set forth in the requests were deemed admitted as a matter of law under OCGA § 9-11-36 (a) (2).” (Citations omitted.) Powerhouse Custom Homes v. 84 Lumber Co., 307 Ga. App. 605, 608 (705 SE2d 704) (2011).

After Ameris moved for summary judgment, R. C. Patel filed a motion to withdraw his admissions and a supporting affidavit in which he stated that V. M. Patel executed and delivered “to Plaintiff a promissory note in the amount of $2,625,000.” The pleadings identified the Plaintiff as “High Trust Bank f/k/a Southern Horizon Bank.” The trial court denied the motion to withdraw admissions and awarded summary judgment to Ameris.

On appeal, the Patels argue that the trial court’s conclusion that “Ameris Bank f/k/a High Trust” was assigned the Notes and Guaranties from Southern Horizon Bank was not supported by any evidence, and that the trial court’s conclusion that “Ameris Bank f/k/a High Trust Bank” was the holder of the Notes and Guaranties was not supported by any evidence.

A review of the trial court’s- order, however, shows that the trial court’s ruling was not based on any assignment of the Notes and Guaranties by Southern Horizon Bank, but on a finding that Southern Horizon Bank changed its name to High Trust Bank, which was taken over by the FDIC, which assigned the Notes and Guaranties to Ameris Bank. The trial court thus concluded that High Trust Bank established that it was the holder of the Note prior to its takeover by the FDIC.

We find that conclusion amply supported by the evidence set out above. Also, as noted by Ameris Bank in its brief here, “[a]n amendment to articles of incorporation does not affect a cause of action existing against or in favor of the corporation .... An amendment changing a corporation’s name does not abate a proceeding brought by . . . the corporation in its former name.” OCGA § 14-2-1009. Although this authority was not relied upon by the trial court, a judgment right for any reason will be affirmed. See Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 45 (4) (586 SE2d 235) (2003) (a judgment of a lower court may be affirmed so long as it is right for any reason); City of Gainesville v. Dodd, 275 Ga. 834, 835, 838-839 (573 SE2d 369) (2002) (appellate courts may exercise discretion as to when to follow the “right for any reason” rule and consider grounds not addressed by the trial court). Since the factual record is set, we are able to apply the facts to the law in the same manner as the trial court in the furtherance of judicial economy. See City of Gainesville, supra, 275 Ga. at 838 (“The de novo review standard advances judicial economy by recognizing that, in summary judgment cases, the factual record is set and the appellate courts can, as well as the trial courts, apply those facts to the law.”).

Decided October 10, 2013.

Knight Johnson, Bryan M. Knight, for appellants.

Smith, Welch, Webb & White, JohnP. Webb, Larry S. Mayfield, for appellee.

Therefore, the trial court properly entered judgment in favor of Ameris Bank on the Guaranties.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       Vipulkumar Patel failed to answer the complaint and the trial court entered default judgment against him.


text:
    A13A1183.
    WARD v. THE STATE.
    (749 SE2d 812)
   Miller, Judge.

Following a jury trial, Michael Keith Ward was convicted of kidnapping with bodily injury (OCGA § 16-5-40). Ward appeals from the denial of his motion for new trial, contending that the evidence was insufficient to establish the asportation element of his kidnapping conviction, and that the trial court’s charge on kidnapping with bodily injury was erroneous because it defined the offense as an act which was committed in a manner other than as alleged in the indictment. After a thorough review of the record, we conclude that Ward’s movement of the victim was legally sufficient to establish the element of asportation, and the trial court appropriately cured what otherwise may have been error in its jury charge by providing the jury with the indictment as a resource to the kidnapping charge and properly instructing them on the State’s burden of proof. Accordingly, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that Ward, who married the victim in 1999, had a history of physically abusing her, including two incidents which resulted in Ward’s incarceration for aggravated stalking, battery and obstructing a 911 call. Ward and the victim divorced in 2007. Nevertheless, from 2008 to 2010, Ward continued to come around the victim and tried to either convince her or force her to have sex with him. On two occasions, Ward convinced the victim to have consensual sex with him. In early 2010, however, Ward forced the victim to have sex with him in her car after she agreed to give Ward a ride to see his probation officer. During that incident, Ward threatened to kill the victim.

On June 8, 2010, Ward contacted the victim at her job and asked her to come help him jump start his car. The victim initially refused to meet Ward because he had been forcing himself on her. She reluctantly agreed to meet Ward at a house in Athens-Clarke County where he was staying after he assured her that other people would be present. When the victim arrived at the house, Ward told her to pull her car into the garage. The victim pulled her car into the garage next to Ward’s car, popped her hood, and retrieved a rod from her trunk to hold the hood up. When the victim walked to the front of her car, she saw the garage door going down. Ward then grabbed the victim’s wrist, and tried to pull her skirt up and pull her panties down. Although the victim tried to fight Ward, he forcibly pulled her by her arm inside the house and into the living room using both of his hands. Ward then forcibly had sex with the victim on the floor and on a love seat.

Afterward, Ward tried to convince the victim to give him a ride. The victim refused and started to walk out of the house and back into the garage so that she could find the garage door opener and get out. Ward again grabbed the victim’s arm and started pulling her back into the house. The victim saw an alarm pad on the wall and pressed a button on the pad hoping the police would come. Ward then forced the victim into a nearby bedroom, threw her on the bed and again forced her to have sex with him. When Ward went to the kitchen, the victim went back into the garage, retrieved her phone and called 911. Before the victim had an opportunity to speak with anyone, Ward came back into the garage and took her phone. When the victim finally convinced Ward to open the garage, she backed her car out with the hood still up. The police showed up a few minutes later. The victim was later examined by a nurse who observed abrasions all over the victim’s body.

1. Ward contends that the evidence was insufficient to establish the asportation element of kidnapping. We disagree.

“A person commits the offense of kidnapping when [he] abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” OCGA § 16-5-40 (a). “For the State to prove the essential element that the defendant has ‘stolen away’ or ‘abducted’ his alleged victim, it must show that an unlawful movement, or asportation, of the person has taken place against [the victim’s] will.” (Citation and footnote omitted.) Brashier v. State, 299 Ga. App. 107, 109 (2) (681 SE2d 750) (2009). Under the kidnapping statute, “slight movement shall be sufficient; provided, however, that any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.” (Emphasis supplied.) OCGA § 16-5-40 (b) (l). “Movement shall not be considered merely incidental to another offense if it: (A) Conceals or isolates the victim; (B) Makes the commission of the other offense substantially easier; (C) Lessens the risk of detection; or (D) Is for the purpose of avoiding apprehension.” (Emphasis supplied.) OCGA § 16-5-40 (b) (2).

Here, the evidence showed that after Ward forced the victim to have sexual intercourse in the living room, the victim tried to exit the house and also tried to summon the police by pressing a key on the alarm pad. Ward stopped the victim from leaving by grabbing her arm. He then forced her into a nearby bedroom, threw her on the bed and forced her to have sex with him. In doing so, Ward made it substantially easier to commit the charged offense of rape in the bedroom (Count 2), and lessened the risk that he would be detected. See OCGA § 16-5-40 (b) (1); see also Brown v. State, 291 Ga. 750 (733 SE2d 300) (2012) (movement of victim from front of house to back bathroom was not insignificant, was not an inherent part of other charged crimes and placed victim in more dangerous situation). As a result, the movement of the victim was not merely incidental to any other charged offense, and the evidence was sufficient to establish the asportation element of the kidnapping charge.

To the extent Ward contends that his conviction for kidnapping with bodily injury is inconsistent with his acquittal on the rape and aggravated assault charges, his contention is without merit, as it is nothing more than an attempt to invoke the inconsistent verdict rule, which has been abolished. See Taylor v. State, 282 Ga. 502, 504 (4) (651 SE2d 715) (2007); see also Baker v. State, 254 Ga. App. 19, 20 (1) (561 SE2d 185) (2002) (defendant’s conviction for kidnapping based on the use of a gun as the means of force was not inconsistent with his convictions for robbery as a lesser included offense of armed robbery and assault and battery as a lesser included offense of aggravated assault).

2. Ward contends that the trial court erred in charging the jury on kidnapping with bodily injury. Specifically, Ward argues that the indictment alleged the offense of rape with regard to the bodily injury element, whereas the trial court charged the jury that they could convict Ward if they found any injury. For the reasons set forth below, the trial court did not reversibly err.

Kidnapping with bodily injury is a separate and distinct offense that can be committed in multiple ways, depending on the type of bodily injury alleged in the indictment. See Smith v. State, 302 Ga. App. 222, 225 (2) (690 SE2d 867) (2010); Hunter v. State, 228 Ga. App. 846 (493 SE2d 44) (1997). The indictment in this case charged Ward with the offense of kidnapping with bodily injury by unlawfully abducting and stealing away the victim without lawful authority and holding her against her will. The indictment further charged that the victim “received bodily injury, to wit: rape, in violation of OCGA § 16-5-40.” In charging the jury, the trial court stated: “when during a kidnapping, the person abducted receives any bodily injury, however slight, then that constitutes the offense of Kidnapping with Bodily Injury.” Since Ward failed to object to the jury charge as given, we review this contention for plain error. See Durham v. State, 292 Ga. 239, 240 (3) (734 SE2d 377) (2012). “Under this standard, we must determine whether there is an error that has not been affirmatively waived, is clear and obvious, affects the defendant’s substantial rights, and seriously affects the fairness, integrity or public reputation of the judicial proceedings.” (Citation and punctuation omitted.) Id. at 241 (3).

Decided October 10, 2013.

Edward H. Brumby, Jr., for appellant.

The Supreme Court of Georgia has made clear that

[w]here the indictment charges a defendant committed an offense by one method, it is reversible error for the court to instruct the jury that the offense could be committed by [another method] with no limiting instruction. The defect is cured, however, where the court provides the jury with the indictment and instructs jurors that the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.

(Citations and punctuation omitted; emphasis in original.) Williams v. Kelley, 291 Ga. 285, 286-287 (728 SE2d 666) (2012). Here, the trial court read the indictment to the jury verbatim at the beginning of trial, and the trial court sent the indictment out with the jury after instructing them that the State had the burden of proving “every material allegation of the indictment and every essential element of the crimes charged beyond a reasonable doubt.” The trial court also charged the jury that it would be authorized to find Ward guilty of kidnapping with bodily injury only if it found that Ward committed that offense “as it is alleged in the indictment[.]” The evidence as set forth above, including evidence that the victim was covered with abrasions, supported a finding that she was forcibly raped. The State proved the asportation element of the kidnapping charge, and the trial court cured the defect in the jury charge with respect to bodily harm. The evidence was clearly consistent with the jury’s verdict. Accordingly, this Court will affirm.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       The jury acquitted Ward of two additional charges of rape and a charge of aggravated assault with intent to rape.

         Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       In 2008, the Supreme Court of Georgia held that the asportation required to support a conviction for kidnapping must be more than “slight,” and set forth a four-part test to aid in the determination of whether the asportation element was met: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense. Garza v. State, 284 Ga. 696, 702 (1) (670 SE2d 73) (2008); see also Bryant v. State, 304 Ga. App. 755, 756-757 (1), n. 1 (697 SE2d 860) (2010). After the Garza decision, the legislature amended the kidnapping statute, effective July 1, 2009, to provide that slight movement is sufficient to establish kidnapping as long as the movement was not incidental to another offense. See Hammond v. State, 289 Ga. 142, 143 (710 SE2d 124) (2011). The 2009 amendment is applicable here since the incident occurred in June 2010.


text:
    A13A1530.
    RAMCHANDANI et al. v. STATE BANK AND TRUST COMPANY.
    (749 SE2d 797)
   ELLINGTON, Presiding Judge.

State Bank and Trust Company (“SB&T”) sought a deficiency judgment in the Superior Court of Fulton County against Deepak Ramchandani, Chandan Seernani, and others, after SB&T conducted a nonjudicial foreclosure sale of certain Forsyth County property and successfully petitioned the Superior Court of Forsyth County for confirmation of the sale. Ramchandani and Seernani (“the appellants”) appeal from the Fulton County court’s grant of summary judgment to SB&T in the deficiency judgment action. They contend that the court erred in concluding that it did not have jurisdiction to consider their collateral attacks on the Forsyth County foreclosure confirmation order and, as a result of that conclusion, in failing to consider their claims that they were not properly served with notice of the confirmation hearing. Finding no error, we affirm.

“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.” (Citations and punctuation omitted.) White v. Ga. Power Co., 265 Ga. App. 664, 664-665 (595 SE2d 353) (2004). So viewed, the record shows the following undisputed facts.

In October 2009, Forsyth Community Bank, the predecessor in interest to SB&T, made a commercial loan of approximately $1.6 million to Nexgen Cumming, LLC; the loan was secured by, inter alia, real property located in Forsyth County and personal and unconditional guaranties executed by the appellants and others. After the loan went into default, SB&T conducted a foreclosure sale of the property securing the loan and submitted the winning bid of $1.17 million. Because the foreclosure sale did not bring the full amount of the secured debt, SB&T filed a confirmation action in Forsyth County, pursuant to OCGA § 44-14-161. Following a hearing, the Superior Court of Forsyth County found that SB&T had satisfied its evidentiary burden under OCGA § 44-14-161, and issued an order confirming the sale. In its confirmation order, the court stated that “it appear [s] from the record that all Respondents were properly served” with notice of the confirmation proceeding. SB&T then filed the instant suit in the Superior Court of Fulton County against Nexgen, the appellants, and others, seeking a deficiency judgment, plus accrued interest, late charges, attorney fees, and other expenses.

In their answer, the appellants asserted that SB&T was barred from asserting a deficiency action against them because they had not been properly served with notice of the Forsyth County confirmation hearing, pursuant to OCGA § 44-14-161 (c). During a hearing on the parties’ cross-motions for summary judgment, the appellants argued that the Superior Court of Forsyth County lacked personal jurisdiction over them in the confirmation action because they had been served with notice of the hearing by publication in Forsyth County, instead of being personally served in Fulton County, where they resided. They contended that, as a result, the confirmation order was invalid as to them and could not be used against them in the deficiency action.

Following the hearing, the Fulton County court ruled that it lacked subject matter jurisdiction to consider the appellants’ collateral attack against the Forsyth County confirmation order; that, in order to challenge the Forsyth County court’s personal jurisdiction over them, the appellants were required to either file an appeal to this Court from the confirmation order or file a motion to set aside the confirmation order in Forsyth County, pursuant to OCGA § 9-11-60 (d); and that, because they had failed to do so, they were bound by the confirmation order. The court then granted summary judgment to SB&T and awarded it a deficiency judgment in the principal amount of $460,081, plus interest and attorney fees.

1. The appellants contend that the trial court erred in concluding that it lacked jurisdiction to consider their collateral attacks on the confirmation order. Specifically, they argue that the Civil Practice Act does not apply to confirmation proceedings and, therefore, they were not required to file a motion to set aside the confirmation order under OCGA § 9-11-60 (d).

This Court has previously ruled, however, that, “[e]ven though an application to confirm a foreclosure sale is a special statutory proceeding and not a ‘civil suit’ in the ordinary meaning of that term, we reject the debtors’ argument that the Civil Practice Act does not apply to applications for confirmation.” (Citations omitted.) Small Business Admin, v. Desai, 193 Ga. App. 852, 853 (1) (389 SE2d 372) (1989). In fact, OCGA § 9-11-81 specifically provides that the Civil Practice Act

shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of this chapter governing the sufficiency of pleadings, defenses, amendments, counterclaims, cross-claims, third-party practice, joinder of parties and causes, making parties, discovery and depositions, interpleader, intervention, evidence, motions, summary judgment, relief from judgments, and the effect of judgments shall apply to all such proceedings.

(Emphasis supplied.) Thus, under the unambiguous language of OCGA § 9-11-81, the provisions of OCGA § 9-11-60 (which is entitled “Relief from judgments”) apply to foreclosure confirmation proceedings. See Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 514, 515 (2) (467 SE2d 531) (1996) (holding that, under OCGA § 9-11-81, the discovery provisions of the Civil Practice Act apply to a confirmation proceeding following a nonjudicial foreclosure sale because it is a special statutory proceeding and no statute establishes a contrary rule of discovery); Small Business Admin, v. Desai, 193 Ga. App. at 853 (1) (holding that, under OCGA § 9-11-81, the Civil Practice Act’s provisions on relation back, OCGA § 9-11-15 (c), and real party in interest, OCGA § 9-11-17 (a), apply to foreclosure confirmation proceedings).

Moreover, under OCGA § 9-11-54 (a), the term “judgment,” as used in the Civil Practice Act, “includes a decree and any order from which an appeal lies.” A foreclosure confirmation order “is final and conclusive to the same extent as any other adjudication by a court of competent jurisdiction.” (Citation omitted.) Whitaker v. Trust Co. of Columbus, 167 Ga. App. 360, 362 (2) (306 SE2d 329) (1983). In addition, an order confirming a nonjudicial foreclosure is a final order that is directly appealable, pursuant to OCGA § 5-6-34 (a) (1).

Finally, a party may attack a judgment by a motion to set aside under OCGA § 9-11-60 (d) “only in the court of rendition.” (Emphasis supplied.) OCGA § 9-11-60 (b). Consequently, the Superior Court of Fulton County was not authorized to set aside the confirmation order which the Superior Court of Forsyth County had issued. State Auto Mut. Ins. Co. v. Relocation & Corporate Housing Svcs., 287 Ga. App. 575, 577-578 (3) (651 SE2d 829) (2007) (“[A] trial court lacks jurisdiction over an action which attempts to collaterally attack a prior judgment (which was not void on its face) in a court other than the one in which it was rendered.”) (citation omitted).

The appellants rely upon two cases, Hill v. Moye, 221 Ga. App. 411 (471 SE2d 910) (1996), and First Nat. Bank & Trust Co. v. Kunes, 128 Ga. App. 565 (197 SE2d 446) (1973), for their argument that they were authorized to challenge the validity of the confirmation order during the deficiency action and were not required to file a motion to set aside the order in the Forsyth County court. The relevant facts of those cases, however, are distinguishable from the instant case. The creditors seeking confirmation orders in Hill and Kunes did not name the debtors as defendants in their confirmation petitions. Hill v. Moye, 221 Ga. App. at 411; First Nat. Bank & Trust Co. v. Kunes, 128 Ga. App. at 566 (3). As a result, the debtors were authorized to defend themselves from any liability arising from a deficiency judgment by asserting that they were not bound by the underlying confirmation orders. Hill v. Moye, 221 Ga. App. at 412; First Nat. Bank & Trust Co. v. Kunes, 128 Ga. App. at 566 (3), 569 (6). The reason the debtors were allowed to assert such a defense in those deficiency actions is simple: because the debtors had not been named as parties in the confirmation action, they lacked standing to move to set aside the confirmation orders under OCGA § 9-11-60 (d), or to appeal the orders. Because those avenues were unavailable to them, they were authorized to collaterally challenge the validity of the underlying confirmation orders as to them during the deficiency actions. Such unusual circumstances are not presented in the instant case.

Accordingly, we conclude that, in order to challenge the validity of the confirmation order in this case, the appellants were required to file a motion to set aside the judgment in the Superior Court of Forsyth County, pursuant to OCGA § 9-11-60 (b) and (d). See Pine Grove Builders v. Sun Trust Bank, 307 Ga. App. 764, 765-766 (1) (706 SE2d 129) (2011); see also Rogers v. Fidelity Fed. Sav. & Loan Assn., 180 Ga. App. 330, 331 (349 SE2d 7) (1986) (The debtors successfully moved to set aside a confirmation order based on the creditor’s failure to serve them with notice of the confirmation hearing as required by OCGA § 44-14-161 (c).). It follows that the trial court did not err in concluding that it lacked jurisdiction to consider the appellants’ collateral attack on the confirmation order during the proceedings on the deficiency action.

2. In the alternative, the appellants contend that, even if OCGA § 9-11-60 does apply to confirmation proceedings, the confirmation order in this case is “void on its face” because they were not properly served with notice of the confirmation hearing. They argue, therefore, that they can challenge the validity of the order at any time in any court, pursuant to OCGA § 9-11-60 (a). There is no merit to this argument.

First, it is undisputed that SB&T served the appellants with notice of the confirmation hearing by publication after it obtained an order allowing such service from the Forsyth County court. Even so, the appellants argue that this did not constitute proper service because SB&T failed to exercise the due diligence required before service by publication is authorized under OCGA § 9-11-4 (f) (1). As we have previously noted, however, the Supreme Court of Georgia has specifically ruled that the requirements for service under OCGA § 9-11-4 do not apply to foreclosure confirmation proceedings. See Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 297-298 (1) (430 SE2d 732) (1993). Ironically, the appellants specifically rely on the Vlass ruling in the portion of their brief in which they argue that none of the provisions of the Civil Practice Act apply to confirmation proceedings (an argument we have rejected in Division 1, supra).

Second, SB&T’s alleged failure to properly serve the appellants with notice of the confirmation hearing is not evident on the face of the confirmation order. On the contrary, in the confirmation order, the Forsyth County court stated that it appeared “from the record” that the appellants had been “properly served.” Thus, although the appellants argue on appeal that an alleged lack of proper service of the confirmation hearing notice makes the confirmation order “void on its face,” they are, in reality, arguing that the Forsyth County court erred in finding that they had been properly served, and they are unable to show that this finding is erroneous without presenting some evidence to disprove it. In fact, they admit this in their brief, arguing that the Forsyth County court erred in finding that they had been properly served because “the [rjecord evidence” shows that “the address at which [SB&T originally] tried to serve [them] is a Shell gasoline station” in Cumming, Georgia; that neither of them resided at that address but, instead, resided in homes in Fulton County; that SB&T failed to do “a scintilla of research” on the Internet or of any county tax records to determine whether they resided at the address occupied by the gas station and, if not, where they did reside; and that SB&T had Ramchandani’s phone number and could have called him regarding service of the confirmation hearing notice. (Emphasis supplied.) They argue that, as a result, “the [r]ecord evidence does not demonstrate [that SB&T] made any ‘diligent and honest efforts’ to locate and personally serve [them] prior to moving to serve them by publication.”

Decided October 10, 2013.

Deepak C. Ramchandani, pro se.

Chandan Seernani, pro se.

Accordingly, we reject the appellants’ argument that the confirmation order was “void on its face” and that, as a result, they could collaterally challenge it in the deficiency action pursuant to OCGA § 9-11-60 (a).

3. Given our decisions in Divisions 1 and 2, supra, the appellants’ remaining enumerated errors are moot.

Judgment affirmed.

Phipps, C. J., and Branch, J., concur.

Quirk & Quirk, Joseph P. Quirk, Kevin E. Quirk, for appellee.

       In June 2010, SB&T acquired the assets of Forsyth Community Bank, including the note, security deed, guaranties, and other loan documents at issue in this case.

       Under OCGA § 44-14-161,
      (a) When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.
      (b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.
      (c) The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may order a resale of the property for good cause shown.

       The appellants herein did not appear at the confirmation hearing and did not join their co-defendants in the latter’s appeal from the confirmation order. See Nexgen Cumming, LLC v. State Bank and Trust Co., 313 Ga. App. 715 (722 SE2d 428) (2012) (affirming the confirmation order).

       A deficiency judgment is defined as “a judgment for that part of a debt secured by a mortgage not realized from a sale of the mortgaged property.” (Citation omitted.) Hill v. Moye, 221 Ga. App. 411, 412 (1) (471 SE2d 910) (1996).

       See OCGA § 9-11-60 (a) (“Ajudgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.”); (d) (1) (“A motion to set aside may be brought to set aside a judgment based upon... [ljack of jurisdiction over the person or the subject matter[.]”).

       See Camera Shop v. GAF Corp., 130 Ga. App. 88, 90 (202 SE2d 241) (1973) (Ajudgment that is not void on its face is valid until it is set aside.); see also State Auto Mut. Ins. Co. v. Relocation & Corporate Housing Svcs., 287 Ga. App. 575, 577 (1) (651 SE2d 829) (2007) (“Every presumption will be indulged in favor of the validity of a judgment rendered by a court having jurisdiction of the subject matter and the parties; and until set aside in a manner prescribed by law, such judgment will be given effect.”) (footnote omitted).

       The trial court did not rule upon cross-claims filed by the appellants against their co-defendants in the deficiency judgment action.

       Chapter 11 of Title 9 of the Georgia Code is entitled the “Civil Practice Act.”

       See also 129 Acres, Inc. v. Atlanta Business Bank, 311 Ga. App. 462, 463, n. 1 (716 SE2d 536) (2011) (holding that the Civil Practice Act’s statute on misjoinder and nonjoinder of parties, OCGA § 9-11-21, applies to foreclosure confirmation proceedings); cf. Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 297-298 (1) (430 SE2d 732) (1993) (holding that the Civil Practice Act’s requirements for service of a “complaint” under OCGA § 9-11-4 do not apply to confirmation proceedings because no complaint is filed in such proceedings).

       See generally Bay Meadow Corp. v. Hart, 276 Ga. App. 133, 134 (1) (622 SE2d 478) (2005) (“A judgment is final when it disposes of the entire controversy, leaving nothing for the trial court to do in the case. The effect of a judicial act and not the trial court’s characterization of it determines whether it is a final judgment.”) (punctuation and footnote omitted).

       See, e.g., Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. at 514; Vlass v. Security Pacific Nat. Bank, 263 Ga. at 296; WCI Properties v. Community & Southern Bank, 320 Ga. App. 671 (740 SE2d 686) (2013); HWA Properties v. Community & Southern Bank, 320 Ga. App. 334 (739 SE2d 770) (2013); 129 Acres, Inc. v. Atlanta Business Bank, 311 Ga. App. at 462.

       See Loveless v. Conner, 254 Ga. 663, 664 (333 SE2d 586) (1985) (The superior court did not have the authority to set aside a judgment of the state court of the same county, on the ground that notice of the trial date was legally insufficient, because the superior court was not the court of rendition.); Utica Mut. Ins. Co. v. Mitchell, 227 Ga. App. 830, 832 (490 SE2d 489) (1997) (A superior court did not have jurisdiction to set aside an order of the probate court dismissing a guardian where the probate court judgment was not void on its face.); Moseley v. Interfinancial Mgmt. Co., 224 Ga. App. 80, 83 (1) (479 SE2d 427) (1996) (A superior court lacked jurisdiction to vacate or set aside an order of the state court that was not void on its face.).

       See Peek v. Southern Guar. Ins. Co., 240 Ga. 498, 499 (1) (241 SE2d 210) (1978) (“[A] judgment is not binding on persons who are neither parties nor privies to it[.]”) (citations omitted).

       See Rice v. Champion Bldgs., 288 Ga. App. 597, 601 (3) (654 SE2d 390) (2007) (As nonparties to the underlying case, the owners of a corporation lacked standing to appeal a default judgment against the corporation.); Coffield v. Kuperman, 269 Ga. App. 432 (604 SE2d 288) (2004) (“[Ojnly a party to the case can appeal from a judgment, or one who has sought to become a party as by way of intervention and has been denied the right to do so.”) (citation and punctuation omitted);Peek v. Southern Guar. Ins. Co., 142 Ga. App. 671, 672 (1) (236 SE2d 767) (1977) (Only the person against whom a judgment is rendered has standing to bring a motion to set aside a judgment under subsection (d) of OCGA § 9-11-60.), rev’d on other grounds, 240 Ga. 498 (241 SE2d 210) (1978).

       In Pine Grove Builders, a debtor filed an appeal to this Court from a foreclosure confirmation order, contending that the issuing court lacked personal jurisdiction over him because he was not served with notice of the hearing, pursuant to OCGA § 44-14-161 (c). Pine Grove Builders v. Sun Trust Bank, 307 Ga. App. at 765-766 (1). This Court concluded that the debtor did not waive his objection to the lack of notice by filing the appeal, holding that, even if he
      had actual notice or knowledge of the confirmation hearing, in the absence of notice complying with OCGA § 44-14-161 (c), he could elect to make no appearance without waiving the lack of statutory notice. . .. Without waiving the notice issue or consenting to the court’s jurisdiction, [the debtor] could have moved to set aside the confirmation order for lack of notice and then appealed from a denial of the motion. [He] was also entitled without waiving notice or consenting to jurisdiction to appeal directly to this Court on the notice issue without filing a motion to set aside the order.
      (Citations omitted; emphasis supplied.) Id.

       See footnote 5, supra.

       See footnote 9, supra.

       See Rose v. Household Finance Corp., 316 Ga. App. 282, 285-286 (2) (728 SE2d 879) (2012) (Although the appellant characterized an order granting summary judgment as “void,” he was actually asserting that the order was invalid based upon an erroneous ruling by the trial court, specifically, that it ruled on the merits of the motion for summary judgment without first conducting an evidentiary hearing. Consequently, he could not collaterally attack the summary judgment order in a separate lawsuit, but could only attack the order through a direct proceeding brought in the trial court that entered the judgment, pursuant to OCGA § 9-11-60 (b) and (d).).