author: Ellington, Presiding Judge.

text:
    A17A0534.
    McCOY v. THE STATE.
    (799 SE2d 354)
   Ellington, Presiding Judge.

Following a bench trial, the State Court of Henry County found Latisha McCoy guilty beyond a reasonable doubt of driving under the influence of marijuana to the extent that it was less safe to drive, OCGA § 40-6-391 (a) (2). McCoy appeals, contending that the trial court erred in denying her motion to suppress evidence seized during an allegedly unconstitutional roadblock. For the reasons explained below, we affirm.

When a criminal defendant moves to suppress evidence on the basis that it was obtained as a result of an illegal warrantless search, “the burden of proving that the search and seizure were lawful shall be on the state.” OCGA § 17-5-30 (b). “Hence, it is the State’s burden to establish the existence of circumstances constituting an exception to the general prohibition against warrantless searches and seizures.” (Citation and punctuation omitted.) State v. Castillo, 330 Ga. App. 828, 829 (769 SE2d 571) (2015). As an appellate court, we follow three fundamental principles when reviewing a trial court’s ruling on a motion to suppress.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation and punctuation omitted.) Miller v. State, 288 Ga. 286, 286 (1) (702 SE2d 888) (2010). See also State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005) (“With mixed questions of fact and law, the appellate court accepts the trial court’s findings on disputed facts and witness credibility, unless clearly erroneous, but independently applies [applicable] legal principles to the facts.”) (citation and punctuation omitted).

Where a defendant moves to suppress evidence seized at a police checkpoint or roadblock, the State, to carry its burden of proving that the seizure was constitutional,

must show that the law enforcement agency’s checkpoint program had an appropriate primary purpose other than ordinary crime control — a purpose examined at [the] programmatic level, rather than by trying to determine the motives of the supervisor who implemented and the officers who conducted the particular checkpoint at issue. The State must also prove that the particular checkpoint at which the defendant was stopped was properly implemented and operated — that the five requirements enumerated in LaFon-taine[ ] were met. LaFontaine requires the State to show that: [1] the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; [2] all vehicles were stopped as opposed to random vehicle stops; [3] the delay to motorists was minimal; [4] the roadblock operation was well identified as a police checkpoint; and [5] the “screening” officer’s training and experience was sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

(Citations and punctuation omitted.) Williams v. State, 293 Ga. 883, 886-887 (2) (750 SE2d 355) (2013). Importantly, “[t]he factors in LaFontaine are not general guidelines but are minimum constitutional prerequisites with which perfunctory compliance will not suffice.” (Citation and punctuation omitted.) Owens v. State, 308 Ga. App. 374, 376 (1) (707 SE2d 584) (2011). Further, as the Supreme Court of Georgia has explained, “compliance with the Edmond[ ] and LaFontaine requirements does not necessarily end the Fourth Amendment analysis of a checkpoint case. The ultimate question remains whether, under the totality of the circumstances, the challenged stop was reasonable [,] ” including considerations whether the checkpoint stop was pretextual, the checkpoint was used to harass, or the checkpoint was otherwise arbitrary or oppressive. Brown v. State, 293 Ga. 787, 797-798 (2) (d) (750 SE2d 148) (2013). In this case, McCoy challenges only the final LaFontaine factor, contending that there was no evidence that the screening officer’s training and experience was sufficient to qualify him to make the initial determination as to which motorists should be given field tests for intoxication.

The record shows the following undisputed facts. On July 19, 2015, McCoy stopped at a Henry County Police Department roadblock on the southbound exit ramp off of 1-75 at Exit 228. After speaking with McCoy, the screening officer suspected that she was impaired from smoking marijuana. Another officer, who was part of a “HEAT unit,” took over the investigation and ultimately arrested McCoy for DUI.

The screening officer did not testify at the hearing on McCoy’s motion to suppress. The only evidence regarding the screening officer’s training and experience was the testimony of the police sergeant who authorized the roadblock. When asked what training the screening officers who were involved in the roadblock had “to make sure that they could determine that drivers need to be given field sobriety evaluations,” the sergeant responded that the screening officers “go through a certification during their police academy, the Georgia POST.”

The trial court denied McCoy’s motion to suppress. On the issue of the screening officer’s training and experience, the trial court found that

all officers present were [POST] certified, and therefore had authority to be present at the roadblock and screen drivers. This certification and training allows the officers to judge which drivers may or may not be under the influence of alcohol and which need to be further investigated.

At a hearing on McCoy’s motion for reconsideration of the suppression order, the trial court elaborated:

[T]here’s some things that I know from being on the bench for a lot of years and I think it’s well known at least in the legal community by the lawyers and the judges and the prosecutors and defense lawyers and everybody that if an officer holds POST certification then he or she is authorized to make arrests. . . . POST certification gives you the ability to put a badge and gun on, drive a patrol car, pull people over and arrest them. So I can’t see how POST certification is not sufficient for a screening officer.... [T]he POST certification authorizes [an officer] I think to be a screening officer just by that[.]... I can’t imagine that a POST certified officer cannot act as a screening officer based on the testimony that I’ve heard, the experience that I’ve had with these kind of cases[.]

McCoy contends that,

[i]f POST Certification, without more, was sufficient to satisfy the fifth LaFontaine requirement that the screening officer’s training and experience be sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication, such a requirement would be superfluous and completely unnecessary since all police officers on the streets and highways of this State must be POST Certified.

We note that the Supreme Court of Georgia did not provide any express guidance in LaFontaine regarding how to determine whether a screening officer has the requisite training and experience. 269 Ga. at 253 (3). It is instructive, however, to consider the context in which the Supreme Court incorporated the final factor in the list of “specific factors to determine when a roadblock is satisfactory.” Id. For all of the factors, the Supreme Court cited this Court’s decision in State v. Golden, 171 Ga. App. 27 (318 SE2d 693) (1984). In Golden, we found that the screening officer’s training and experience was sufficient to enable him to make the initial determination as to which motorists should be given the field tests for intoxication. 171 Ga. App. at 30 (2). We set the bar very low for the requisite level of training and experience, however, noting the longstanding rule in Georgia “that any person may testify, on the basis of personal observation, as to whether another person did or did not appear to be intoxicated on a given occasion.” (Citations omitted.) Id. We have reaffirmed this principle as recently as one year ago. In this case, it is evident that the trial court took judicial notice of the fact that any POST-certified police officer in Georgia has training and experience sufficient to qualify him to make an initial determination as to which motorists stopped at a roadblock should be given field tests for intoxication. We conclude that it is commonly known and cannot reasonably be questioned that any police officer, to obtain certification in Georgia, has received training in law enforcement activities that concern impaired drivers. See Knight v. State, 271 Ga. 557, 562 (6) (521 SE2d 819) (1999) (“[B]ecause of experience and training, a police officer can testify about the state of an individual’s sobriety.”) (citation omitted); OCGA § 35-8-1 et seq. (Georgia Peace Officer Standards and Training Act). Given that any person may give an opinion, on the basis of personal observation of another person on a given occasion, that the other person did or did not appear to be intoxicated, and given that any POST-certified officer will have had some training in law enforcement activities that concern impaired drivers, we conclude based on the foregoing authorities that the trial court in this case did not err in denying McCoy’s motion to suppress based on its finding that the POST-certified screening officer had training and experience sufficient to enable him to make the initial determination as to which motorists should be given the field tests for intoxication.

Decided April 11, 2017

Mack & Harris, Robert L. Mack, Jr., for appellant.

John A. Pipkin III, Solicitor-General, Caitlin McGillicuddy, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Andrews and Rickman, JJ., concur.

        LaFontaine v. State, 269 Ga. 251 (497 SE2d 367) (1998).

       See also Brown v. State, 293 Ga. 787, 798-799 (2) (e) (750 SE2d 148) (2013) (The requirement that a law enforcement agency’s checkpoint program, when viewed at that programmatic level, have an appropriate primary purpose other than general crime control must not be conflated with the requirement that the decision to implement the specific checkpoint at issue be made by a supervisor in advance rather than by an officer in the field.).

       See Armentrout v. State, 332 Ga. App. 370, 373 (1) (772 SE2d 817) (2015) (accord); State v. Conner, 322 Ga. App. 636, 638 (745 SE2d 837) (2013) (accord); Jacobs v. State, 308 Ga. App. 117, 118 (706 SE2d 737) (2011) (accord); Thomas v. State, 277 Ga. App. 88, 90 (625 SE2d 455) (2005) (accord).

        City of Indianapolis v. Edmond, 531 U. S. 32 (121 SCt 447, 148 LE2d 333) (2000).

       See Williams v. State, 293 Ga. at 884 (1) (The “HEAT” acronym denotes a state-subsidized Highway Enforcement of Aggressive Traffic unit.).

       See Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (110 SCt 2481, 110 LE2d 412) (1990) (A sobriety checkpoint stop is not unreasonably intrusive in a way that outweighs the state’s legitimate interest in preventing drunk driving, where the stoppage time for cars at the checkpoint is brief, the initial visual observation and questioning of motorists is limited, the checkpoint is set up to avoid provoking fear and surprise for law-abiding motorists, and the officers conducting the checkpoint are not free to decide which motorists would be stopped and which would not.); “Validity of police roadblocks or checkpoints for purpose of discovery of alcoholic intoxication — post-Sitz cases,” 74 ALR5th 319, §§ 4, 6, 8, 12.5 (Originally published in 1999) (summarizing 21 published Georgia cases requiring that the screening officer have sufficient training and experience to make the initial determination as to which motorists should be given field tests for intoxication; referencing no cases from the federal courts or from any other state with this requirement).

        See Knight v. State, 271 Ga. 557, 562 (6) (521 SE2d 819) (1999) (“Any individual may testify, on the basis of personal observation, about whether another person did or did not appear to be intoxicated on a given occasion.”) (citation omitted); Jones v. State, 168 Ga. App. 106 (2) (308 SE2d 209) (1983) (“Any witness who has observed an individual may state, based on his observations whether or not an individual was under the influence of alcohol.”) (citation and punctuation omitted); Joiner v. State, 51 Ga. App. 463 (1) (180 SE 911) (1935) (“A witness who had, and was able to improve, suitable opportunities for observation, may state whether a person was intoxicated and the extent of his intoxication. Drunkenness is easy of detection and difficult of explanation.”) (citations and punctuation omitted).

        See Dagne v. Schroeder, 336 Ga. App. 36, 39 (2) (783 SE2d 426) (2016) (“Georgia appellate courts have held that a witness may testify, on the basis of personal observation, about whether another person did or did not appear to be intoxicated on a given occasion.”) (citations omitted); see also Sweetenburg v. State, 197 Ga. App. 36, 37 (3) (397 SE2d 451) (1990) (accord); Luke v. State, 177 Ga.App. 518, 519 (2) (340 SE2d 30) (1986) (“[A] witness who satisfactorily shows that he had opportunity to observe, and did observe, the condition of another, may testify whether that person was under the influence of intoxicants and the extent thereof, stating the facts upon which the opinion isbased[.]”); see also Paul S. Milich, Georgia Rules of Evidence § 15:2 at 491, n. 17 (2016-2017 ed.) (Under OCGA § 24-7-701 (a), a lay witness may express an opinion about another person’s intoxication, so long as the witness’s opinion is based on personal knowledge and the witness states the factual basis for the opinion.).

       See Graham v. State, 275 Ga. 290, 292 (2) (565 SE2d 467) (2002) (Judicial notice “is not evidence, but takes the place of evidence. By taking judicial notice of a fact (that is) commonly known, the court avoids the needless formality of introducing evidence to prove an incontestable issue.”) (citations and punctuation omitted); Paul S. Milich, Ga. Rules of Evidence, § 4:2 (database updated October 2016) (“The purpose of allowing judicial notice of adjudicative facts is economy. If the fact in question is such a matter of public knowledge that its truth cannot reasonably be questioned, it wastes valuable court time to require formal proof of such a fact.”) (footnotes omitted); OCGA § 24-2-201 (b) (“A judicially noticed [adjudicative] fact shall be a fact which is not subject to reasonable dispute in that it is either: (1) Generally known within the territorial jurisdiction of the court; or (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”).

       See Hurt v. State, 307 Ga. App. 316, 317 (704 SE2d 434) (2010) (evidence included the uncontradicted testimony of the supervisor who decided to conduct the roadblock at issue that “all of the officers implementing the roadblock were POST-certified and had training in DUI detection”); Golden v. State, 171 Ga. App. at 30 (2) (evidence showed that the screening officer had two-and-one-half years of police service and had attended a DUI enforcement school operated by the North Georgia Police Academy).


source: Caselaw Access Project

author: Self, Judge.

license: Public Domain

text:
    A17A0594.
    LEDFORD v. THE STATE.
    (799 SE2d 359)
   Self, Judge.

Natasha Ledford appeals from the trial court’s order denying her plea in bar on double jeopardy grounds. In her sole enumeration of error, Ledford asserts that the trial court should have granted her plea in bar because the prosecutor’s intentional conduct goaded her into requesting a mistrial. For the reasons explained below, we disagree and affirm.

The general rule is that where a mistrial is granted at the behest of the defendant, a retrial is not barred by principles of double jeopardy unless the governmental conduct in question is intended to goad the defendant into moving for a mistrial. Even where a prosecutor’s conduct is sufficient to justify a grant of mistrial, the conduct nevertheless does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the double jeopardy clause. To authorize the grant of a plea of double jeopardy, the facts must warrant the conclusion that there was such an instigative intention.

(Citations and punctuation omitted.) Spears v. State, 234 Ga. App. 498, 499 (506 SE2d 446) (1998).

Here, the record shows that the trial court granted Ledford’s motion to suppress the results of a horizontal gaze nystagmus test (“HGN”). At the beginning of the trial, the State provided to Ledford’s counsel a video of her arrest from which the portions relating to the HGN test had been redacted.

During direct examination at trial of the police officer who arrested Ledford, the State asked, “What have you been trained, as far as how many clues [on the walk-and-turn evaluation] indicate impairment?” When the officer attempted to link a number of clues to “BAC level,” defense counsel objected. After the State attempted to lay a foundation for testimony about the correlation between clues on a field sobriety test and blood alcohol content outside the presence of the jury, the trial court sustained the defendant’s objection to testimony “as to percentages” of blood alcohol. Before the jury returned to the courtroom, defense counsel stated:

Your Honor, before we bring the jury back in — it was actually — I was watching [the solicitor-general] trying to make sure that we are all aware, including [the officer], that the evidence of the horizontal gaze nystagmus test was suppressed so that we don’t end up making a mistake of that. We’re not going to talk about HGN, at all, and that way we don’t end up having a mistrial. My client can’t afford to try this case twice.

The trial court agreed, and the jury returned to the courtroom.

The State resumed direct examination of the police officer, and she testified about the clues from various field sobriety tests indicating Ledford’s impairment, Ledford’s arrest, the reading of the implied consent notice, and Ledford’s refusal to consent to a test. After establishing that the officer’s patrol car was equipped with a camera that took a video, the following transpired:

Q. Was the camera functioning on the day you had this interaction with the defendant?
A. Yes, ma’am.
Q. And have you had a chance to view the video prior to testifying today?
A. Yes, ma’am.
Q. Was it a fair and accurate recording of the events that took place that day?
A. Yes, ma’am.
Q. Were there any additions, deletions or alterations to that video?
A. Yes, ma’am, for the HGN.

Ledford’s counsel promptly moved for a mistrial based upon the reference to the HGN test, and the trial court granted it. During subsequent discussions about scheduling the case for a retrial, Led-ford’s counsel advised the trial court that he had filed a plea in bar, and the trial court responded, “I’m probably not going to grant it because it has to be intentional on the part of the State. And I don’t know that I’m going to be able to find intentionality on their part.” Ledford’s counsel then argued:

Your Honor, I don’t blame any intention on the part of the solicitor’s office. But I do find that it’s quite intentional on behalf of the officer. And, Your Honor, before we got started with trial, after the trial and around the lunch break, my client overheard the solicitor’s office mentioning that the officer really needed to leave and she was leaving by 1:30. And it’s amazing that her departure — what she blurted out was — came out at almost exactly 1:30 when we were about to start the video and go on with the case. And it came within 10 to 15 minutes of us telling her — at least me instructing her in open court, on the record, that we’re not going to make any mention of the horizontal gaze nystagmus. I find that that’s intentional on her part.

The State explained:

Your Honor,... when [the officer] was asked if the video in question had been altered, she said only the HGN but she truthfully answered an artfully [sic] worded question. And it wasn’t — but it wasn’t to intentionally draw attention to the fact that the HGN existed. Certainly, I could have phrased the question better but it was not intentional on my part and it wasn’t the intention of [the officer] either. I was asking a standard foundational question to admit a video.

The trial court denied the plea in bar based upon the following findings:

There has to be a finding by the Court that it was something that was done intentionally by the prosecutor. The prosecutor is the state of Georgia represented by the solicitor general not a police officer.
The police officer is just their witness. And when asked a question, the witness is required to answer truthfully And [the officer] was asked a question, that is a foundational question, . . . which is routine in the course of establishing the authenticity of a video. And by answering truthfully she brought that issue up that had been ruled on by the Court. But I don’t find that it is such that it rises to the level of misconduct or intentional acts on behalf of the State.

On appeal, we must uphold the trial court’s finding on the issue of the prosecutor’s intent unless it is clearly erroneous. Bryant v. State, 305 Ga. App. 238, 239 (699 SE2d 433) (2010). In this case, the trial judge, who had the opportunity to observe the prosecutor’s demeanor and the progress of the trial, accepted the prosecutor’s explanation, and the evidence does “not demand a finding that the prosecutor goaded the defense into moving for a mistrial or tried to terminate the trial.” Id. at 240.

Ledford asserts that we should nonetheless reverse the trial court based upon similarities between this case and our opinion in Anderson v. State, 285 Ga. App. 166 (645 SE2d 647) (2007). We disagree. In Anderson, a prosecutor with over 30 years experience elicited testimony during direct examination of a police officer that commented upon the defendant’s right to remain silent. Id. at 167. We found “it impossible to believe that an error which is so blatant and so contrary to the most basic rules of prosecutorial procedure and conduct could have been simply a negligent act.” (Citation and punctuation omitted.) Id. at 168. In this case, however, it can be concluded that the prosecutor negligently asked a routine foundation question for the admission of a video that resulted in the police officer’s response about the HGN test.

Decided April 12, 2017.

Eric A. Ballinger, for appellant.

Jessica K. Moss, Solicitor-General, April A. Weeks, C. Todd Hayes, Assistant Solicitors-General, for appellee.

We likewise find no merit in Ledford’s contention that the trial court’s earlier ruling that the police officer could not testify about blood alcohol percentages based upon clues from field sobriety tests proves that the prosecutor intentionally goaded him into seeking a mistrial “to change the course of the trial.” The transcript shows that while the State could not introduce this specific evidence, it introduced ample other evidence of Ledford’s impairment. Additionally, she was charged with driving under the influence to the extent it was less safe for her to drive under OCGA § 40-6-391 (a) (1), not a per se violation under OCGA § 40-6-391 (a) (5). Accordingly, the State’s failed attempt to submit evidence of blood alcohol percentages did not negatively impact the State’s ability to prove its case. Finally, as in Demory v. State, 313 Ga. App. 265 (721 SE2d 93) (2011), “[t]he prosecutor consistently opposed the mistrial. . . Id. at 268.

For all of the foregoing reasons, we affirm the trial court’s denial of Ledford’s plea in bar.

Judgment affirmed.

Dillard, P. J., and Ray, J., concur.


author: Reese, Judge.

text:
    A17A0163.
    EVANS et al. v. WILLIAMS et al.
    (799 SE2d 362)
   Reese, Judge.

In this case arising from a petition to modify a trust, W. Michael Evans appeals from an order denying his motion to recuse the trial court judge, as well as orders granting summary judgment to Wey-man Evans, James Herring, and Billy Williams (collectively, “Appel-lees”). For the reasons set forth infra, we vacate the order denying Appellant’s motion to recuse and remand this case with direction.

1. As an initial matter, we must consider Appellant’s first allegation of error, to wit: that the order denying his motion to recuse must be vacated because the judge who issued the order failed to include findings of fact and conclusions of law, as requiredby Uniform Superior Court Rule (USCR) 25.6. We agree.

The record in this case shows that Appellant filed a motion to recuse the judge presiding over the case, Judge Melanie B. Cross. Under such circumstances, USCR 25.3 provides as follows:

When a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit,!/] and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse. . . .

In this case, after Judge Cross reviewed the Appellant’s filings and referred the motion for disposition by another judge, Judge Harry Jay Altman II was appointed to consider and rule upon the motion. In his order denying the motion to recuse, Judge Altman stated only that, after reviewing the motion, the responses thereto, the “nature of the action,” and “all surrounding circumstances,” he found “that there [were] not adequate grounds to justify recusal of Judge Melanie B. Cross from hearing the action.”

According to Appellant, this order fails to comply with USCR 25.6, which requires that a judge who rules upon a motion to recuse include written findings of fact and conclusions of law in its order on the motion.

The judge assigned may consider the motion solely upon the affidavits, but may, in the exercise of discretion, convene an evidentiary hearing. [] After consideration of the evidence, the judge assigned shall rule on the merits of the motion and shall make written findings and conclusions. If the motion is sustained, the selection of another judge to hear the case shall follow the same procedure as established in [USCR] 25.4 above. Any determination of disqualification shall not be competent evidence in any other case or proceedings.

Thus, the final order on the merits of the motion to recuse by the judge who was assigned to decide the issue “must be accompanied by written findings of fact and conclusions of law.”

In this case, the record affirmatively shows that Judge Altman’s recusal order fails to comply with USCR 25.6 as a matter of law because it does not contain the written findings of fact and conclusions of law that are necessary to explain how and why he reached his decision.

On appeal, Appellee Herring proposes several reasons why he believes Judge Altman would have been authorized to deny the motion to recuse. It was Judge Altman’s duty under USCR 25.6, however, to provide a written explanation of his reasons for denying the motion. This Court cannot simply assume that Judge Altman reached the same findings of fact and conclusions of law that Herring proposes, particularly when none of the Appellees filed a response to the recusal motion, no hearing was conducted, and the written order provides nothing substantive for this Court to review.

Appellees also argue that Appellant waived the Rule’s requirement for written findings of fact and conclusions of law by failing to request them before or after Judge Altman issued his ruling and by failing to object to the recusal order when it was issued. They have failed, however, to cite to any authority that requires such a request, particularly given the plain language of USCR 25.6, or that provides for such a waiver, and this Court is not aware of any such authority

Consequently, we vacate the recusal order and remand the case to the trial court with direction to address the motion to recuse in an order that complies with USCR 25.6.

2. Given our decision in Division 1, supra, that there is not yet a valid order on the motion to recuse Judge Cross, it necessarily follows that we are unable to address the merits of Appellant’s challenges to the summary judgment orders Judge Cross issued in this case after the motion to recuse was filed. This is because, once the motion was filed and assigned to Judge Altman for a decision, Judge Cross’ authority to issue any rulings in this case was suspended unless and until a valid order on the motion to recuse was issued.

We note, however, that if, on remand, the motion to recuse is denied in a legally sufficient order, Judge Cross will be able to reissue the summary judgment orders on the merits of this case. Then Appellant will be able to refile his appeal, challenging the new recusal order (if he chooses to do so) and reasserting the rest of his enumerated errors.

In the alternative, if the motion to recuse is granted, “then the proceedings that occurred after the filing of that motion are invalid[.]” In that situation, Appellees may file an application for interlocutory review of the order granting the motion to recuse, or the parties may choose to relitigate the case under the direction of the newly-appointed judge from the point when the motion to recuse was filed.

Decided April 13, 2017.

Bouhan Falligant, B. H. Levy, Jr., Gregory G. Sewell, Andrew H. Dekle; Aitkens & Aitkens, Robert G. Aitkens, Teresa T. Aitkens, for appellants.

C. Richard Langley; Spurlin & Spurlin, John C. Spurlin; Mozley, Finlayson & Loggins, John R. Lowery, for appellees.

Judgment vacated and case remanded with direction.

Doyle, C. J., and Miller, P. J., concur.

       Evans is acting in his capacity as “Conservator of and for the benefit of Nora Leah Banks Evans, beneficiary of the Nora Leah Banks Evans Trust (Amended); and as Guardian for Nora Leah Banks Evans.”

       Weyman Evans is acting in his capacity as Trustee of the Nora Leah Banks Evans Trust (Amended), and Individually and as a Partner in the W. D. Evans Farm Partnership. James Herring and Billy Williams are acting as Trustees of the Nora Leah Banks Evans Trust (Amended).

       See USCR 25.1 (“All motions to recuse or disqualify a judge presiding in a particular case or proceeding shall be timely filed: in writing and all evidence thereon shall be presented by accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded ”).

       No responses from Appellees appear in the record.

       In this case, there was no hearing on the motion to recuse.

       USCR 25.6 (emphasis supplied).

        Price v. Reish, 335 Ga. App. 491, 495 (1) (780 SE2d 745) (2015) (physical precedent only); see Mayor & Aldermen of the City of Savannah v. Batson-Cook Co., 291 Ga. 114, 116 (728 SE2d 189) (2012) (“the ruling on the merits of the motion [to recuse] shall be accompanied by written findings of fact and conclusions”).

       See Mayor & Aldermen of the City of Savannah, 291 Ga. at 116; Price, 335 Ga. App. at 495 (1); see generally Sherman v. Dev. Auth. of Fulton County, 320 Ga. App. 689, 693 (1) (740 SE2d 663) (2013) (holding “summary conclusions that contain no hint about the evidence or analysis the court relied on to arrive at them” were not “findings of fact” that were required by OCGA § 9-11-52 (a), nor were the trial court’s “conclusions of law” adequate under that statute, because they cited to no legal authority and contained no analysis to explain the conclusions).

       Compare USCR 25.6 with OCGA § 9-11-52 (b), (c) (expressly providing that a party may waive the trial court’s findings of fact and conclusions of law that are required in certain circumstances under OCGA § 9-11-52 (a)).

       See Horn v. Shepherd, 294 Ga. 468, 472-473 (2) (b) (754 SE2d 367) (2014); see also USCR 25.3 (“When a judge is presented with a motion to recuse, . . . accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter [.] ”).

       See Gillis v. City of Waycross, 247 Ga. App. 119, 122 (543 SE2d 423) (2000).

        See Morgan v. Propst, 301 Ga. App. 402, 405 (1) (c) (688 SE2d 357) (2009); Gillis, 247 Ga. App. at 122.

       See Mayor & Aldermen of the City of Savannah v. Batson-Cook Co., 318 Ga.App. 152, 153 (734 SE2d 743) (2012) (citation and punctuation omitted).

       See id.


text:
    A17A0371.
    RUSSELL v. MUSCOGEE COUNTY SCHOOL DISTRICT et al.
    (800 SE2d 7)
   Self, Judge.

This case arose out of a collision between a car in which appellant, Roderick Russell, was a passenger and a school bus owned by the Muscogee County School District (“the MCSD”) and driven by its employee, Richard Shores. Russell sued Shores, alleging he was negligent in causing the collision, and also sued the MCSD on the theory of vicarious liability and for negligent entrustment of a vehicle and negligent hiring. Following the entry of a default judgment against them, the MCSD and Shores (collectively “appellees”) entered a special appearance and moved to dismiss the complaint, or in the alternative, open default based upon Russell’s failure to effect proper service. The trial court granted the motion to dismiss and Russell appeals. For the reasons explained below, we affirm the portion of the trial court’s order dismissing the complaint against Shores but reverse the portion dismissing the complaint against the MCSD.

On November 3, 2014, Russell filed this lawsuit against the MCSD and Shores, seeking damages for personal injuries arising out of an automobile accident that occurred on November 2, 2012. On March 10, 2015, a court-appointed process server filed an affidavit of service attesting that on November 5, 2014, he served the MCSD by leaving a copy of the summons and complaint with “the assistant for the HR Department, 2960 Macon Road, Columbus, Georgia.” On October 16, 2015, Russell filed a motion for entry of default on the ground that appellees failed to file an answer.

On January 28, 2016, appellees filed an answer by special appearance and moved to dismiss the complaint pursuant to OCGA § 9-11-12 (b) (4) and (5) or, in the alternative, open default based upon Russell’s failure to effect proper service. In support of the motion, Shores submitted his own affidavit stating that as of January 28, 2016, he had not been served with the summons or complaint. Russell did not respond to the motion. In their answer, appellees raised the defenses of insufficiency of process, service of process, and the running of the statute of limitation. On August 2, 2016, the trial court granted the motion to dismiss finding as follows:

Defendants having moved for dismissal of this action as to claims against them set forth by the Plaintiff, and it appearing that Plaintiff has neither responded nor objected to such dismissal, and said Motion having come before the Court with no response, and the Court having considered the Motion, and the Argument and Citation of Authority, hereby GRANTS [Defendants’] Motion. Therefore, the above-styled action is hereby DISMISSED.

On August 30, 2016, Russell filed a “motion and brief to reconsider and vacate order granting defendants’ motion to dismiss.” Russell attached an amended affidavit of service to the motion, in which the court-appointed process server attested as follows:

On [November 5, 2014,] I entered the [MCSD] building and was required to sign in at the front desk on the first level. I first asked the desk attendant where the proper place for the documents to be served would be and was told that I would need to go to the HR department. I was given a “physical pass” to enter the building and instructed where to go. I went to the 2nd floor and reported to the receptionist desk. I explained that I had legal documents to serve to the [MCSD] and was advised that . . . she would need to call someone to find the proper place for them to go, while I waited. I watched as the receptionist called someone and could hear over the phone the person state that I could just leave it with them at the front desk. I was then told that I could leave the documents with her. I was given a name of the Deputy Superintendent, Becky Braaten, that the document would end up going to. I further believed that was who the receptionist was speaking to. Because I entered into a secured building with multiple levels of security and I was not able to just walk in and meet with the Deputy Superintendent and I was forced to follow the instructions of the office protocol, I left the documentation with the receptionist. I fully believe that this was the process that the HR department followed and replicated. Everyone including the downstairs desk attendant knew where and whom the documentation went to. The receptionist and the person that she was speaking to was made aware of the documentation and what it was in reference to and [its] meaning.

The process server further stated that on August 15, 2016, he returned to the MCSD to serve a copy of the same package of documents in this case and was told by the receptionist in the “HR department” that, following a phone call, she had been instructed to accept the paperwork and would pass it on to “Mrs. Tracey Fox, Director of Risk Management for the [MCSD].”

On August 31, 2016, Russell filed a supplemental brief in support of motion to reconsider and vacate order granting defendants’ motion to dismiss. In that brief, Russell pointed out that the MCSD admitted proper service in a companion case, which was served by the same court-appointed process server with a near-identical return of service: “On [September 22, 2014] ... I personally served [MCSD] a copy of the summons and complaint... to defendant by leaving a copy with assistant for Hr. Dept. 2960 Macon Road, Columbus, Georgia.” On September 1, 2016, before the trial court could rule on the motion for reconsideration, Russell filed a notice of appeal from the trial court’s order granting appellees’ motion to dismiss.

1. In two related enumerations, Russell contends that the trial court erred in dismissing the complaint under OCGA § 9-11-12 (b) (4) and (5) because there was no deficiency in the process issued in this case and no insufficiency of service of that process. In their brief, appellees concede the first contention, noting that “[i]t is the service of the [c]omplaint and summons that was invalid.” Accordingly, we need only address the issue of the sufficiency of service in this case.

“When a defendant in a lawsuit challenges the sufficiency of service, that defendant bears the burden of showing improper service. The return can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.” (Citations and punctuation omitted.) Franchell v. Clark, 241 Ga. App. 128, 130 (3) (524 SE2d 512) (1999).

[T]he return of service constitute[s] prima facie . . . proof. . . as to the facts recited therein, but it is not conclusive [and it] may be traversed by proof that such facts are untrue. . . . Whether evidence is sufficient to overcome facts reflected in a return of service is a matter addressed to the discretion of the trial court.

(Citation and punctuation omitted.) Webb v. Tatum, 202 Ga. App. 89, 91 (413 SE2d 263) (1991). This Court will not disturb those findings when supported by any evidence. Franchell, 241 Ga. App. at 131 (3).

(a) At the outset, we note that there is absolutely no evidence in the record that Shores was served. On the contrary, Shores affirmed that as of January 28, 2016, — 14 months after the complaint was filed in this case — he still had not been served with the summons or complaint. Accordingly, the trial court did not err in dismissing the complaint against Shores for insufficient service of process.

(b) As for whether service of process on the MCSD was sufficient, OCGA § 9-11-4 (e) provides:

Except for cases in which the defendant has waived service, the summons and complaint shall be served together. The plaintiff shall furnish the clerk of the court with such copies as are necessary. Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows:... (5) If against a county, municipality, city, or town, to the chairman of the board of commissioners, president of the council of trustees, mayor or city manager of the city, or to an agent authorized by appointment to receive service of process. If against any other public body or organization subject to an action, to the chief executive officer or clerk thereof[.\

(Emphasis supplied.) OCGA § 9-11-4 (e) (5). Here, the MCSD argued in its motion to dismiss that service upon “the assistant for the HR department” was insufficient under the statute. Relying on Foskey v. Vidalia City School, 258 Ga. App. 298, 302 (b) (574 SE2d 367) (2002), and the court-appointed process server’s first affidavit of service, the MCSD argued that “the assistant for the HR Department” is not the chief executive officer or clerk of the MCSD and, therefore, was not authorized to accept service on its behalf. See id. (noting that plaintiff served the mayor of the city, who was neither the chief executive officer nor the clerk of Vidalia City School District, as provided by OCGA § 9-11-4 (e) (5)). Merely stating this fact, however, does not make it true. The MCSD bore the burden of coming forward with evidence that the assistant for the HR department was not a “clerk” within the meaning of the statute. See Murray v. Sloan Paper Co., 212 Ga. App. 648, 649 (2) (442 SE2d 795) (1994) (defendant failed to meet its burden of showing that administrative assistant’s duties “did not entail managerial or supervisory responsibilities” so as to render service of process on her insufficient under OCGA § 9-11-4 (d) (1)).

In Murray, plaintiffs sued the defendant company for injuries sustained in a collision. Plaintiff served the defendant company pursuant to OCGA § 9-11-4 (d) (1) by leaving a copy of the summons and complaint with the administrative assistant. The trial court granted the defendant company’s motion for summary judgment, or in the alternative, motion to dismiss on the ground of insufficient service of process. We reversed dismissal of the complaint, finding that the administrative assistant was an authorized agent for the corporation. We concluded that the burden was on the defendant to show that the administrative assistant’s responsibilities did not entail managerial or supervisory responsibilities and that the defendant did not present evidence to meet this burden. Id. at 648, 649 (2).

We reiterate in this case that the burden is on the MCSD to present evidence showing that the assistant was not a clerk just as the burden was on the defendant in Murray to show that the administrative assistant was not an authorized agent for the corporation. The MCSD failed to present the trial court with any evidence, whether by affidavit or otherwise, to dispute the assistant’s position as a clerk authorized to accept service under the statute. See, e.g., Nesmith v. Landmark Dodge, 302 Ga. App. 315, 316 (691 SE2d 240) (2010) (defendant failed to present trial court with competent evidence showing administrative assistant was not authorized to accept service on behalf of corporation). Compare Summerlin v. Ga. Pines Community Svc. Bd., 278 Ga. App. 831, 833-834 (1) (630 SE2d 115) (2006), aff’d, Ga. Pines Community Svc. Bd. v. Summerlin, 282 Ga. 339 (647 SE2d 566) (2007) (reversing grant of summary judgment to defendant because personnel manager was clerk within the meaning ofOCGA § 9-11-4 (e) (5), and explaining that, “[w]hile the word‘clerk’ is not defined in the statute, ‘all words, except words of art, shall be given their ordinary significance.’ Black’s Law Dictionary defines the word ‘clerk’ as a person employed in public office ‘whose duties include keeping records or accounts.’ The American Heritage Dictionary defines the word ‘clerk’ as a person who works in an office ‘performing such tasks as keeping records, attending to correspondence, or filing’ ”) (citations omitted).

Decided April 13, 2017.

Given that the MCSD failed to carry its burden of showing that the assistant was not a clerk within the meaning of the statute, we must conclude that the trial court erred in granting the motion to dismiss as to the MCSD. See Nesmith, supra (reversing dismissal of complaint); Murray, supra (same).

2. Russell also argues that we must vacate the trial court’s order and remand the case because it is unlikely the trial court considered the entire record in making its ruling; rather, the wording of the order suggests that the trial court granted appellees’ motion to dismiss because Russell failed to respond. Given our holding in Division 1, supra, we need not rule on this enumeration. However, we note that while the failure of a nonmoving party to respond does not automatically entitle the moving party to judgment in its favor, the order here clearly states that the trial court considered the “Motion . . . and the Argument and Citation of Authority” before ruling. Based on this language, we will assume that the trial court exercised its discretion and considered the entire record before ruling on the motion. See Pearson v. Small World Day Care Center, 234 Ga. App. 843, 844-845 (2) (a) (508 SE2d 200) (1998) (where trial court order stated that “the defendant’s [motion] is unopposed and that no genuine issues of material fact remain[,]” this Court would not assume that summary judgment was granted simply because the plaintiff did not respond to defendant’s motion) (punctuation omitted).

Judgment affirmed in part and reversed in part.

Dillard, P. J., and Ray, J., concur.

The Breault Law Firm, Christopher R. Breault; W. Donald Morgan, Jr., for appellant.

Hall Booth Smith, Gregory S. Ellington; Philips Branch & Hodges, Stephen J. Hodges, for appellees.

       As November 2, 2014, was a Sunday, Russell filed suit on Monday, November 3, 2014. See OCGA § 1-3-1 (d) (3).

       Russell admits as much in his appellate brief and explains that his original attorney and an “associated” attorney brought on to assist with the entry of default were confused as to who bore responsibility for responding to the motion to dismiss.

       Appellees noted in their brief in support of their motion to dismiss that the companion case, brought by the driver of the vehicle in which Russell was a passenger, was dismissed without prejudice in August 2015, due to the plaintiff’s failure to appear.

       In its appellate brief, the MCSD also relies on Aaron v. Gwinnett County School Dist., No. 1:14-cv-00408-WSD, 2015 U. S. Dist. LEXIS 80946 (N.D. Ga. June23, 2015), where the plaintiff conceded that serving an insurance specialist employed by the defendant school district was not sufficient to perfect service because she was not the CEO or clerk as provided by OCGA § 9-11-4 (e) (5). Id. at *8-9 (II) (B) (1).

       See Neely v. Jones, 264 Ga. App. 795, 796 (592 SE2d 447) (2003), citing Bishop v. Westminster Schools, 196 Ga. App. 891, 892 (1) (397 SE2d 143) (1990).


text:
    A17A0414.
    PREMIER ELEVATOR COMPANY, INC./SOI et al. v. EDWARDS.
    (799 SE2d 588)
   Self, Judge.

We granted Premier Elevator Company, Inc./SOI and CCMSI’s (“Employer/Insurer”) application for discretionary appeal from the superior court’s order affirming the State Board of Workers’ Compensation’s (“the Board”) order denying their motion to dismiss employee Michael Edwards’ claim for medical benefits based on the statute of limitation.

In this case, an Administrative Law Judge (“ALJ”) of the Board denied the Employer/Insurer’s motion to dismiss, finding that Edwards’ “claim for additional medical treatment for compensable injuries to his left middle finger is not barred by the statute of limitation[ under OCGA § 34-9-82 (a).” The appellate division of the Board adopted and affirmed the ALJ’s findings and conclusions, and the Employer/Insurer appealed to the superior court. The superior court affirmed the Board’s decision.

OCGA § 34-9-105 (b) provides:

Either party to [a workers’ compensation] dispute may, within 20 days from the date of any such final award or within 20 days from the date of any other final order or judgment of the members of the board, but not thereafter, appeal from the decision in such final award or from any other final decision of the board to the superior court of the county in which the injury occurred or, if the injury occurred outside the state, to the superior court of the county in which the original hearing was held, in the manner and upon the grounds provided in this Code section. . . .

Id.

This statute plainly, clearly, and unambiguously prescribes that only a final award, order, judgment, or decision of the board is subject to appeal to the superior court. Further, the Workers’ Compensation Act makes no provision for an appeal to the superior court from a decision by the full board other than one which grants or denies compensation. Conwood Corp. v. Guinn, 190 Ga. App. 595 (379 SE2d 621) [(1989)].

Decided April 13, 2017.

Eraclides Gelman Hall Indek Goodman & Waters, LeRyan P. Lambert, for appellants.

Gebhardt Law Firm, Matthew G. Gebhardt, for appellee.

(Citation and punctuation omitted; emphasis in original.) Fasher Painting & Decorating Co. v. Bordelon, 204 Ga. App. 196, 196 (2) (419 SE2d 82) (1992). Here, the Board denied the Employer /Insurer’s motion to dismiss based on statute of limitation grounds. Although the Board found that Edwards had a “compensable” injury, it did not issue a compensation award. Thus, Edwards’ claim for benefits remains pending below. Because the Board’s ruling did not constitute a “final order or judgment” as contemplated by OCGA § 34-9-105 (b), the superior court was without jurisdiction to consider the appeal and should have dismissed it. Accordingly, the judgment of the superior court is reversed with direction that the appeal be dismissed as premature. See GAC, MFG/Processing v. Busbin, 233 Ga. App. 406 (504 SE2d 270) (1998); Fasher Painting & Decorating Co., supra; Conwood Corp., supra.

Judgment vacated and case remanded with direction.

Dillard, P. J., and Ray, J., concur.


text:
    A17A0553.
    VASILE et al. v. ADDO.
    (800 SE2d 1)
   Self, Judge.

In this discretionary appeal, Timis Vasile, individually and d/b/a Timis Auto Sales (“Vasile”), and Roga Import Export, LLC (“Roga”), appeal the trial court’s denial of their second motion to set aside a default judgment. For reasons that follow, we agree with appellants as to Vasile, but disagree as to Roga.

So viewed, the record shows that on September 3, 2015, Enoch Addo sued appellants for breach of contract, money had and received, quantum meruit, and unjust enrichment arising from an agreement whereby appellants allegedly consented to receive on behalf of Addo the amount of $72,000, via a wire transfer. Addo sought judgment in the amount of $64,000, plus interest and attorney fees. Addo alleged that the money was wired into Roga’s bank account and then transferred by Vasile to an account in the name of Timis Auto Sales, but never turned over to Addo.

On September 10, 2015, Addo attempted to serve Vasile individually and as the registered agent for Roga, but the deputy sheriff’s return of service was returned non est with a notation that “Timis Vasile owns residence, but rents the home out, defendant is possibly in Romania.” On October 27, 2015, Addo moved for service upon Vasile by publication and by mail, averring that he rents the downstairs of Vasile’s residence and that Vasile is aware of the lawsuit. According to Addo, Vasile told him before the filing of the lawsuit that he was in a “Mexican jail” and has sent hundreds of threatening text messages to Addo about the lawsuit, including one on September 22, 2015, stating that he hopes Addo dies of cancer and that “God would punish [Addo] for suing [Vasile] while knowing he was in prison,” and another on September 29, 2015, asking “when is the court date?” Addo’s attorney also filed an affidavit stating that,

[d]espite the effort at service, affiant has been unsuccessful in serving [Vasile] due to [his] continuing willful and deliberate efforts to avoid service, to wit: Prior to the filing of the lawsuit, Vasile told the Plaintiff he was in a “Mexican jail” but refused to provide the name of that jail. Prior to the filing of this Complaint, Vasile has also communicated with the Plaintiff via the texting “app” “What’s App” so it is highly doubtful he would have access to a smartphone or computer while he was in a Mexican prison. Further, after the lawsuit was filed, Vasile somehow learned of the filing of the lawsuit and has sent and has continued to send many threatening text messages to [Addo]. Also, as noted above, Vasile’s tenant told the Deputy that Vasile was in Romania so that is more likely the truth than Vasile being in a Mexican prison. . . . It is clear that [Vasile] has personal knowledge of the [complaint] and has personally communicated with [Addo] but [Vasile] will not allow himself to be served.

The trial court granted the motion on November 2, 2015, finding that Vasile

appears to remain a resident of the State of Georgia and has actual knowledge that this action has been filed and is pending, and that the sole reason for [Addo’s] failure to accomplish personal service . . . has been the efforts of [Vasile] to secret himself and to conceal himself to avoid service.

On December 11, 2015, the notice of publication was filed with the court. In addition, Addo requested that the clerk of the Gwinnett County State Court mail a stamped-filed copy of the notice to Vasile’s alleged address. Beginning on December 17, 2015, the notice was published in the Gwinnett Daily Post for four consecutive weeks.

Addo effected substitute service upon Roga by serving the Georgia Secretary of State via certified mail. On December 11, 2015, the Secretary of State issued a certificate of acknowledgment, which indicated that the Secretary of State received the “complaint, summons, [and] attorney certification.”

On February 4, 2016, Addo filed a request for default judgment, alleging that “[t]he Defendant Roga . . . was served as follows: (a) by attempting Personal Service on its Registered Agent [(] which was not successful!)]; (b) by Certified Mail to its Registered Agent at its principal office; and (c) by service on the Secretary of State via Certified Mail.” On February 17, 2016, the trial court entered a default judgment against appellants for failure to file an answer or other responsive pleadings. The order provided as follows: “Judgment by default is hereby entered against [appellants], jointly and severally, in favor of... [Addo] in the principal sum of $64,000.00 plus interest (18% per annum).”

In March 2016, appellants answered the complaint and moved to set aside the default judgment, contending that Addo committed a fraud upon the court by alleging that he was unaware of Vasile’s whereabouts when he moved for service by publication and effected substitute service on the Secretary of State. In an affidavit filed contemporaneously with the motions, Vasile averred that he was in Romania from June 2,2015, until October 25,2015; that Addo resided in a basement apartment of his home and knew Vasile was out of the country; that at the time Addo moved for service by publication, he was aware that Vasile had returned from Romania and was living in the upstairs portion of the home; that he has never been personally served with the lawsuit or “served by mail with anything pertaining to [the] lawsuit” and did not know of its existence until March 17, 2016, when his attorney told him to get a copy from the court; and, that he never received any money on behalf of Addo.

In April 2016, appellants’ counsel withdrew from the case. On May 10, 2016, the trial court denied appellants’ motion to set aside. On May 21, 2016, appellants’new counsel then filed a second motion, moving to set aside the default judgment for lack of personal jurisdiction based upon improper service, pursuant to OCGA § 9-11-60 (d) (1). Roga argued that the court lacked personal jurisdiction because service was defective pursuant to OCGA § 14-11-209 (f), and Vasile argued that the court lacked personal jurisdiction because service was defective pursuant to OCGA § 9-11-4 (f). On August 8, 2016, the trial court summarily denied the motions, and we granted appellants’ application for discretionary appeal.

1. As a threshold matter, Addo challenges the trial court’s consideration of appellants’ second motion to set aside, contending that it was barred by the doctrine of res judicata. Addo claims that appellants should have raised the issue of improper service in their first motion to set aside when they alleged fraud. In Holloway v. McCarthy, 151 Ga. App. 828 (261 SE2d 732) (1979), this Court held that the denial of a defendant’s first motion to set aside a default judgment did not bar the defendant’s second motion to set aside because the motions attacked the judgment on different, grounds. Id. at 829 (1). In this case, Vasile’s first motion to set aside attacked the judgment on the ground that Addo perpetrated a fraud against the trial court, and the second motion to set aside attacked the judgment on the ground that the trial court lacked personal jurisdiction due to improper service. Accordingly, “the prior ruling of the trial judge against [appellants’] motion to set aside the judgment, from which ruling no appeal was made, was not res judicata.” (Citation and punctuation omitted.) Id. Compare Guthrie v. Wickes, 295 Ga. App. 892, 894 (2) (673 SE2d 523) (2009) (order denying application for discretionary review invokes the doctrine of res judicata when the judgment appealed from is final and on the merits).

2. In their first enumeration of error, appellants contend that the trial court should have set aside the default judgment against Vasile because service was improper under OCGA § 9-11-4 (f). Appellants argue that (a) one attempt at service does not meet the requirement of “due diligence,” and (b) the clerk of court failed to mail notice to Vasile of the service by publication as required by the statute.

We review a ruling on a motion to set aside for abuse of discretion and affirm if there is any evidence to support it. Hooks v. McCondichie Properties 1, 330 Ga. App. 583, 584 (767 SE2d 517) (2015). “Factual disputes regarding service are to be resolved by the trial court, and the court’s findings will be upheld if there is any evidence to support them.” (Citation and punctuation omitted; emphasis in original.) Vibratech, Inc. v. Frost, 291 Ga. App. 133, 140 (1) (b) (661 SE2d 185) (2008). However, we review a question of law on appeal under a de novo standard of review, meaning that we “owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” (Citation and punctuation omitted.) Hutcheson v. Elizabeth Brennan Antiques & Interiors, 317 Ga. App. 123, 125 (730 SE2d 514) (2012).

OCGA § 9-11-4 (f) (1) (A) provides:

When the person on whom service is to be made resides outside the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons. . . .

See Ragan v. Mallow, 319 Ga. App. 443, 446-447 (2) (744 SE2d 337) (2012). Because we do not find the service by publication in this case legal, we need not address appellants’ contention that one attempt at service does not meet the requirement of “due diligence.”

OCGA § 9-11-4 (f) (1) (C) provides that, once publication is made following a court order, if

. . . the residence or abiding place of the absent or nonresident party is known, the party obtaining the order shall advise the clerk thereof; and it shall be the duty of the clerk, within 15 days after filing of the order for service by publication, to enclose, direct, stamp, and mail a copy of the notice, together with a copy of the order for service by publication and complaint, if any, to the party named in the order at his or her last known address, if any, and make an entry of this action on the complaint or other pleadings filed in the case. . . .

Because service by publication raises due process concerns and is a “notoriously unreliable means of actually informing interested parties about pending suits,” (citation and punctuation omitted) Baxley v. Baldwin, 279 Ga. App. 480, 482 (2) (631 SE2d 506) (2006), it must be accomplished as provided by the statute and “substantial compliance” is insufficient. Hutcheson, supra, 317 Ga. App. at 125-128 (1) (service by publication did not comply with statute where clerk of court conceded failure to mail documents to defendant). See also Fudge v. Balkissoon, 199 Ga. App. 755 (406 SE2d 116) (1991) (service by publication did not comply with statute where only one of four publications was made within sixty-day period for publication; substantial compliance is not sufficient).

Here, Addo’s attorney directed the clerk of court to mail a stamped-filed copy of the notice to Vasile’s alleged address as required by OCGA § 9-11-4 (f) (1) (C). Vasile averred that he was never served with the lawsuit and did not know of its existence until six months after it was filed. The statute requires the clerk of court to mail a copy of the order for service by publication, notice of publication, and the complaint to Vasile’s last known address and to certify such action on the complaint filed in the case. The record contains no evidence of the clerk’s certification. Where service by publication is procured, it is the plaintiff’s burden to establish “that the defendant received actual notice or expressly or impliedly waived such notice.” McDade v. McDade, 263 Ga. 456, 457 (2) (435 SE2d 24) (1993). Addo offers no proof that the clerk mailed the documents and instead argues that clerks and deputy clerks of court are public officers who are presumed to discharge their duties properly. In the cases upon which Addo relies in support of this argument, however, the documents at issue were certified by and on file with the respective clerks of court, and neither address the requirements for service by publication. See Taylor v. Young, 253 Ga. App. 585, 586 (1) (b) (560 SE2d 40) (2002) (addressing validity of order appointing probate court clerk as hearing officer); Oller v. State, 187 Ga. App. 818, 820 (2) (371 SE2d 455) (1988) (holding sufficient proof of prior conviction based upon authenticated records “certified as a true and correct copy of the original ‘indictment, plea and sentence’ ”). Additionally, in both cases, it was noted that the authenticated records of the office of the clerk of court are presumed to speak the truth. Taylor, supra; Oller, supra. In this case, there is a complete absence in the record of any entry by the clerk of court showing that the documents were mailed.

Addo contends that an exhibit, purporting to be a text message from Vasile to Addo with a photo of an envelope allegedly containing a copy of the lawsuit, attached to Addo’s response to appellants’ first motion to set aside proves that appellants received a copy of the lawsuit via mail. In that same text, Vasile allegedly asked Addo, “Is there anything I can do so I don’t have to go to court?” Simply attaching an exhibit to a motion, however, does not prove its genuineness or authenticity See OCGA § 24-9-901. See also Hollie v. State, 298 Ga. App. 1, 3 (1) (679 SE2d 47) (2009) (e-mail transmission purporting to show victim lying about defendant’s molestation of her ruled inadmissible because “[a]s a general rule, a writing will not be admitted into evidence unless the offering party tenders proof of the authenticity or genuineness of the writing. There is no presumption of authenticity, and the burden of proof rests upon the proffering party to establish a prima facie case of genuineness”) (citation and punctuation omitted). Additionally, we point out that the exhibit is blurred and virtually illegible and, therefore, not entitled to eviden-tiary consideration. See Black v. Floyd, 280 Ga. 525, 526(1) (630 SE2d 382) (2006) (completely illegible documents are not entitled to evi-dentiary consideration). But, even if the exhibit purports to be what Addo claims, it does not prove that the clerk of court complied with the statute. Moreover, as appellants point out, there is no evidence of the contents of that envelope. Because strict compliance with the statute is required, the trial court erred in denying appellants’ motion to set aside the default judgment against Vasile on this ground.

3. In their second enumeration of error, appellants contend that the trial court should have set aside the default judgment against Roga because service was improper under OCGA § 14-11-209 (f). In particular, appellants argue that one attempt at service cannot be deemed reasonable diligence, and the certification submitted to the Secretary of State fails to set forth when Addo mailed notice to Roga in accordance with the statute. We disagree.

At the time Addo was attempting service, OCGA § 14-11-209 (f) provided as follows:

Whenever a limited liability company shall fail to appoint or maintain a registered agent in this state or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such limited liability company upon whom any process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with him or her or with any other person or persons designated by the Secretary of State to receive such service two copies of such process, notice, or demand. The plaintiff or his or her attorney shall certify in writing to the Secretary of State that the limited liability company failed either to maintain a registered office or appoint a registered agent in this state and that he or she has forwarded by registered or certified mail or statutory overnight delivery such process, notice, or demand to the most recent registered office listed on the records of the Secretary of State and that service cannot be effected at such office.

There are no cases interpreting the “reasonable diligence” required by OCGA § 14-11-209 (f). Black’s Law Dictionary defines “reasonable diligence” as: “1. A fair degree of diligence expected from someone of ordinary prudence under circumstances like those at issue. 2. See due diligence.” Black’s Law Dictionary (7th ed. 2014), p. 468. It defines “due diligence” as “diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. Also termed reasonable diligence; common diligence.” Id. Accordingly, we find “reasonable diligence” and “due diligence” synonymous for purposes of analyzing whether Addo complied with OCGA § 14-11-209 (f). Cf. B&B Quick Lube v. G&K Svcs. Co., 283 Ga. App. 299, 300 (641 SE2d 198) (2007), overruled on other grounds, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314 (765 SE2d 413) (2014) (stating that plaintiff must “use reasonable or due diligence in serving the registered agent of the corporation before resorting to service by registered mail, certified mail, or overnight delivery”).

In cases where the plaintiff files a complaint before the expiration of the statute of limitation but fails to perfect service before the limitation runs, the plaintiff has the burden of showing that due diligence was exercised. In those cases, “[t]he trial court has discretion to determine whether a plaintiff has exercised sufficient diligence to effect service after the running of the statute of limitation, and we will not disturb the court’s decision absent an abuse of that discretion.” Baxley, supra, 279 Ga. App. at 482-483 (3).

In this case, the evidence showed that Vasile, Roga’s registered agent, was either in a Mexican jail or in Romania with an unknown date of release or return. Accordingly, it was impossible for Addo to perfect service on Roga at the address of the registered agent. See OCGA § 14-11-209 (a) (2). Given Vasile’s absence, we find that the trial court did not abuse its discretion in finding that Addo exercised reasonable diligence under the particular facts and circumstances of this case. See Hooks, supra, 330 Ga. App. at 587 (1) (finding that under analogous statute, OCGA § 14-9-104 (a), plaintiff’s efforts to serve defendant “at an office that was not functioning as a registered office were reasonable and that further efforts were not required before substituting service upon the Secretary of State”).

Decided April 13, 2017.

Howe & Associates, Scott M. Stevens, for appellants.

Andrew, Merritt, Reilly & Smith, Paul E. Andrew, for appellee.

We also reject appellants’ contention that the certification submitted by Addo’s counsel to the Secretary of State was defective. Addo’s attorney certified that he had “forwarded by registered or certified mail or statutory overnight delivery [two copies of] such process, notice, or demand to the most recent registered office listed on the records of the Secretary of State.” This language tracks the statute. Additionally, we can infer from counsel’s use of the past tense “forwarded” that he mailed two copies of the summons and complaint to Roga’s address before mailing them to the Secretary of State. Compare Anthony Hill Grading v. SBS Investments, 297 Ga. App. 728, 731 (1) (678 SE2d 174) (2009) (affirming grant of motion to set aside because simultaneous mailing of summons and complaint to company and Secretary of State does not comply with the express requirements of OCGA § 14-11-209 (f)); Governor’s Towne Club v. J. W. Thomason, Inc., 308 Ga. App. 74, 75 (706 SE2d 602) (2011) (reversing award of default judgment because affidavit stating that summons was “properly sent” to the defendant was defective and did not fulfill the requirements of OCGA § 14-11-209 (f)). Finally, the statute does not require that the certification be filed with the trial court. It follows that the trial court correctly denied appellants’ motion to set aside the default judgment as to Roga.

In sum, we affirm the trial court’s order denying appellants’ motion to set aside the default judgment as to Roga, reverse the trial court’s order denying appellants’ motion to set aside the default judgment as to Vasile, and vacate that portion of the trial court’s order entering default judgment jointly and severally against Vasile and Roga.

Judgment affirmed in part, reversed in part, and vacated in part.

Dillard, P. J., and Ray, J., concur.

       Attached to Roga’s brief in support of its second motion to set aside is a letter filed with the Secretary of State from Addo’s attorney stating as follows:
      [PJlease find enclosed two (2) copies of such process, notice, or demand. This letter also constitutes our certification in writing to you ... that we have forwarded by registered or certified mail or statutory overnight delivery such process, notice, or demand to the most recent registered office listed on the records of the Secretary of State and that service cannot be effected at such office.

       Appellants do not take issue with the trial court’s finding that Vasile concealed himself to avoid service. Nor do they argue on appeal that Addo perpetrated a fraud upon the trial court by alleging that he was unaware of Vasile’s whereabouts when he moved for service by publication.

       OCGA § 14-11-209 (f) was amended effective July 1, 2016, substituting “a copy” for “two copies.” Ga. L. 2016, pp. 225, 236, § 4-2.


author: Per curiam.

text:
    A17A0691.
    LAMB v. THE STATE.
    (799 SE2d 589)
   Per curiam.

Raymond Lamb filed a pro se appeal from the trial court’s order denying his motion for an out-of-time appeal. For the reasons that follow, we affirm in part, vacate in part, and remand the case for resentencing.

Lamb pled guilty in December 2013 to child molestation and incest. He was sentenced to twenty-five years for child molestation and ten years for incest, for a total of thirty-five years, with the first eighteen years to be served in confinement. Lamb subsequently filed a pro se motion for an out-of-time appeal, asserting that he did not receive effective assistance of counsel because his plea counsel did not present the issue of his diminished mental capacity, and that his guilty plea was not made freely and voluntarily because he was under the influence of “psychotropic” medications at the time of the plea. The trial court denied the motion. Lamb appeals from that denial.

Georgia law is clear that

a defendant is not entitled to an out-of-time appeal unless he had the right to file a direct appeal. And a direct appeal from a judgment of conviction and sentence entered on a guilty plea is available only if the issue on appeal can be resolved by reference to facts on the record. For this reason, the ability to decide the appeal based on the existing record is the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty

Smith v. State, 335 Ga. App. 639, 640 (781 SE2d 400) (2016) (citation and punctuation omitted). As a result, “the merits of [Lamb’s] appeal can be addressed if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing.” Kennedy v. State, 319 Ga. App. 498, 498-499 (735 SE2d 819) (2012) (citation and punctuation omitted). We therefore look to the issues raised in Lamb’s brief and whether those issues may be resolved by the record on appeal.

We first consider Lamb’s argument that he did not knowingly or voluntarily enter the plea because he was impaired by medication at the time.

Where the validity of a guilty plea is challenged, the State bears the burden of showing that the plea was voluntarily, knowingly, and intelligently made. The State may do this by showing through the record of the guilty plea hearing that (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.

Johnson v. State, 260 Ga. App. 897, 899 (1) (581 SE2d 407) (2003) (citations and punctuation omitted).

The transcript of the guilty plea proceeding reveals that before accepting Lamb’s plea, the trial court inquired whether he was taking any medications. Lamb said that he was on medication. The trial court explored the issue and asked Lamb: “[b]ut you are thinking clearly today, and you understand everything I’m saying to you, and you’ve been able to converse or communicate with your lawyer okay; is that right?” Lamb responded, “[y]es, sir.” The trial court then explained that it was “going to find that this plea is given freely, voluntarily, and knowingly; there’s been no use of force, threats, pressure, intimidation, and no promises made. Is that correct?” Lamb responded, “[y]es, sir.”

Lamb responded appropriately and cogently to the trial court’s inquiries, and nothing in the proceeding reflects that the medication affected his understanding of the proceedings. “[He] offered no indication to the trial court that he suffered from a medication-induced impairment. To the contrary, he represented to the court that the medicine did not affect his ability to understand the proceedings. No further inquiry was required.” Brown v. State, 259 Ga. App. 576, 579 (578 SE2d 188) (2003). Because Lamb’s argument is of the sort that may be “resolved solely by reference to the existing record,” see Smith, 335 Ga. App. at 640, Lamb properly raised the argument in his motion for an out-of-time appeal. See Kennedy, 319 Ga. App. at 498-499. However, we conclude the trial court did not err in accepting Lamb’s guilty plea and that Lamb has failed to demonstrate error in the trial court’s denial of his motion for an out-of-time appeal.

Lamb also argues that he received ineffective assistance of counsel for his plea counsel’s failure to bring his diminished mental faculties to the trial court’s attention. However, issues of ineffective assistance of trial counsel following a guilty plea “can be developed only in the context ofa post-plea hearing.” Lamb v. State, 282 Ga.App. 756, 758 (639 SE2d 641) (2006) (punctuation omitted). See also Ken nedy, 319 Ga. App. at 499 (2). Likewise, “[ijssues of mental competency cannot be resolved with reference only to facts appearing in the record of the plea and sentence.” Gray v. State, 273 Ga. App. 441, 442 (1) (a) (615 SE2d 248) (2005). It follows that this claim is not an issue which may be pursued by direct appeal from a guilty plea. See Smith v. State, 266 Ga. 687, 687-688 (470 SE2d 436) (1996); Kennedy, 319 Ga. App. at 498. Instead, Lamb must pursue counsel’s alleged ineffectiveness in an action for habeas corpus. See Wetherington v. State, 296 Ga. 451, 455 (2) (769 SE2d 53) (2015). Consequently, the trial court did not err in denying Lamb’s motion for an out-of-time appeal on his ineffective assistance claim where the issue could not be determined from the facts in the record.

Decided April 13, 2017.

Raymond L. Lamb, pro se.

Denn is C. Sanders, District Attorney, William P. Doupé, Kevin R. Majeska, Assistant District Attorneys, for appellee.

Accordingly, the trial court did not abuse its discretion in denying Lamb’s motion for an out-of-time appeal. However, as the State concedes, Lamb’s 25-year sentence for child molestation exceeds the statutory maximum of 20 years. See OCGA § 16-6-4 (b) (1). We therefore vacate his sentence for child molestation and remand this case for resentencing in accordance with OCGA § 16-6-4 (b) (1).

Judgment affirmed in part and vacated in part, and case remanded for resentencing. Division Per Curiam.

All Judges concur.

       Lamb stated he was taking Paxil and a medication to “help [him] rest.”

       It appears that Lamb’s mental capacity was called into question below, and during pre-trial proceedings, the trial court ordered a mental evaluation of Lamb.