text:
    A15A0396.
    CASTLE POINT HOMEOWNERS ASSOCIATION, INC. v. SIMMONS.
    (773 S.E.2d 806)
   Branch, Judge.

A real estate developer borrowed almost $2 million from a bank to develop a fourteen-lot subdivision and signed a related security deed with the bank encumbering seven of the lots in the subdivision. The developer subsequently created a homeowners association and recorded certain covenants pertaining to the development. After most of the lots were developed, the developer defaulted on the loan, and the bank foreclosed on five of the undeveloped lots. One of the foreclosed lots was eventually sold to Phyllis Simmons, and the homeowners association demanded that Simmons comply with the requirements of the recorded covenants. Simmons refused, the association filed suit, and the trial court granted summary judgment in favor of Simmons on the ground that the covenants were not enforceable against her because they were recorded after the security deed to the bank was recorded and thus not a part of Simmons’s chain of title. For the reasons shown below, we reverse.

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). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

Construed in favor of the appellant, the record shows that on May 8, 2007, in order to secure a loan in the amount of $1,945,858, Ross Mundy Custom Homes, Inc. (RMCH), executed a deed to secure debt, which was recorded on June 14, 2007, to McIntosh Commercial Bank for property described as Lots 5, 9,10,11,12,13, and 14, Phase I, in Castle Point Subdivision as per a plat recorded on April 4, 2007. The security deed does not refer to any restrictive covenants, but it does refer to a recorded plat. The referenced plat does not refer to any covenants associated with the property, but it states that “COMMON AREAS & DETENTION PONDS TO BE OWNED AND MAINTAINED BY HOME OWNERS ASSOC.”

On August 8,2007, RMCH recorded a “Declaration of Covenants, Conditions and Restrictions for Castlepoint Homeowner’s Association, Inc.” (the “Covenants” and the “HOA,” respectively), which, by their terms, apply to “all parties having any right, title, or interest in any portion of the Community, their heirs, successors-in-title, and assigns, and shall inure to the benefit of each owner of any portion of the Community.” The Covenants provide for “mutually beneficial restrictions under a general plan of improvement for the benefit of the owners of each portion of the Community,” and they seek to enforce a “community-wide standard” with regard to “conduct, maintenance, or other activity generally prevailing throughout the Community.” According to the developer, that community-wide standard included the installation of sidewalks along both the lots of completed homes and on the common areas of the community, and it required a consistent architectural scheme throughout the subdivision. There is no evidence in the record that McIntosh ever expressly consented to the application of the Covenants to the lots subject to the security deed.

RMCH built homes on nine of the lots and installed sidewalks on each lot parallel to the street. RMCH, however, was unable to complete the development of the subdivision, and on June 3, 2008, McIntosh foreclosed on Lots 9, 10, 11, 13, and 14 as evidenced by a deed under power. The deed under power does not refer to the recorded Covenants, but states that McIntosh acquired the lots “subject to . .. any .. . restrictions, covenants, and matters of record superior to the Security Deed.” (Emphasis supplied.) McIntosh also fell on hard times and was placed into receivership by the Federal Deposit Insurance Corporation, which then conveyed Lot 10 to Charter-bank per a receiver’s deed dated September 9, 2010. The receiver’s deed also does not refer specifically to the Covenants. Charterbankin turn conveyed Lot 10 to Simmons on August 27,2012. The CharterbankSimmons deed states that it conveys title subject to “permitted exceptions,” one of which is “ [a]ll matters appearing of record,” but it does not otherwise reference the Covenants. On the same day that Charterbank deeded Lot 10 to Simmons, Simmons paid to the Castle-point HOA a $250 HOA initiation fee and $250 for HOA dues for the year 2012. And in a construction contract for her new residence, Simmons “acknowledge [d] that there [was] a required association fee” of $250 per year.

During and after construction of Simmons’s new home on Lot 10, a dispute arose between the HOA and Simmons about (1) whether Simmons was required to install a sidewalk along the street-side edge of her property, (2) the color of her roof and driveway, and (3) the fact that she installed a buried propane tank. Meanwhile, on July 22, 2013, Simmons obtained a loan from Primary Residential Mortgage, Inc. (PRM), secured by a deed to secure debt to Mortgage Electronic Registrations Systems, Inc. (MERS), as the nominee for Primary. The Simmons-MERS security deed includes a “Planned Unit Development Rider” (the “PUD”), signed by Simmons on the same day, through which Simmons agreed that the secured property, included

a parcel of land improved with a dwelling, together with other such parcels and certain common areas and facilities, as described in THE COVENANTS, CONDITIONS AND RESTRICTIONS FILED OF RECORD THAT AFFECT THE PROPERTY (the “Declaration”). The Property is a part of a planned unit development known as Castle Point. The Property also includes Borrower’s interest in the homeowners association or equivalent entity owning or managing the common areas and facilities of the PUD . . . and the uses, benefits and proceeds of Borrower’s Interest.

(Emphasis supplied.) Further, the PUD, which was incorporated by reference into the security deed, required Simmons to

perform all of Borrower’s obligations under the PUD’s Constituent Documents. The “Constituent Documents” are the: (i) Declaration; (ii) Articles of Incorporation, Trust Instrument or any equivalent document which creates the Owners’ Association; and (iii) any by-laws or other rules or regulations of the Owners’ Association. Borrower shall promptly pay, when due, all dues and assessments imposed pursuant to the Constituent Documents.

(Emphasis supplied.) On July 30, 2013, Simmons paid the HOAdues of $250 for the year 2013.

On October 24, 2013, the HOA filed and later amended the present action, alleging that Simmons was required to comply with the Covenants and demanding that Simmons be enjoined from violating the Covenants and required to remove all non-conforming features of her property. Simmons moved for summary judgment based on all of the evidence except the Simmons-MERS security deed and PUD rider, which neither party had placed before the court in connection with the motion for summary judgment. The trial court granted the motion, concluding that the Covenants did not apply to Simmons because none of the deeds in her chain of title submitted Lot 10 to the Covenants; none of the prior owners in her chain of title ever consented to the Covenants; Simmons’s chain of title was superior to that of the Covenants because the deed to McIntosh was recorded prior to the Covenants; and the fact that Simmons had knowledge of the existence of a homeowners association in 2012 and 2013 and voluntarily paid fees and dues thereto was insufficient to show that she consented to the Covenants attaching to her property. The court also held that sidewalks were not required by the Rockdale County ordinances, that Rockdale County issued Simmons a certificate of occupancy, and that the HOA did not have standing to enforce county ordinances.

Two weeks after the trial court’s decision, the HOA moved for reconsideration, attached the Simmons-MERS security deed and PUD rider, and argued that these documents showed that Simmons had consented to the Covenants. The trial court denied the motion, finding that there was nothing in the PUD wherein Simmons

agreed that the Subject Property would be subject to the restrictive covenants. While [Simmons] agreed in such Rider to “perform all of Borrower’s obligations under the PUD’s Constituent Documents,” she (the Borrower) had no obligations under such documents since they were outside her chain of title.

The HOA timely filed its notice of appeal from both orders, and, contrary to Simmons’s objection, the appeal is properly before us.

We hold that summary judgment was improper because the HOA, at a minimum, raised an issue of fact as to whether Simmons is bound by the general scheme of the subdivision on the theory of implied covenants. Although the trial court correctly held that the relevant covenants were not in Simmons’s chain of title, it is nonetheless true that

[wjhere an owner of land subdivides it into lots for the purpose of sale, under a general plan or scheme restricting the lots to certain uses, restrictions that are embodied in such general plan or scheme may in a proper case be imposed upon the lots beyond the express restrictions contained in the deeds to the purchasers, on the theory of implied covenants.

Kilby v. Sawtell, 203 Ga. 256 (1) (46 SE2d 117) (1948) (citation omitted); see also McLean v. Turtle Cove Property Assn., 222 Ga. App. 709, 710 (1) (475 SE2d 718) (1996) (“[Restrictive covenants may apply to lots in a planned development under an implied covenant theory, even if the developer failed to comply with all formalities, as long as the landowner had knowledge of the restrictive covenants at the time he purchased the property.” (citations omitted)); Roth v. Connor, 235 Ga. App. 866, 868-869 (1) (b) (510 SE2d 550) (1998); Westhampton, Inc. v. Kehoe, 227 Ga. 642, 645-646 (182 SE2d 430) (1971); Wardlaw v. Southern R. Co., 199 Ga. 97, 104 (33 SE2d 304) (1945). “[T]he need for such a rule is particularly compelling where third parties have relied on the applicability of the covenants.” McLean, 222 Ga. App. at 710 (1) (citation omitted).

The party wishing to enforce a non-express agreement must, of course, establish the area covered by the agreement and the specific content of the restrictions alleged. This is usually accomplished by showing a common grantor’s general scheme or plan for developing the property in question.

Roth, 235 Ga. App. at 869 (1) (b).

Several facts of this case show the existence of an implied covenant and distinguish this case from Springmont. First, the plat referenced in the McIntosh security deed, which is in Simmons’s chain of title, is a “Final Subdivision Plat for Castle Point Phase 1” and it shows a planned 14-lot subdivision with common areas and a single street planned to provide access to each of the 14 lots; the plat states that common areas and detention ponds will be owned and maintained by a homeowners’ association. Thus, the HOA has shown that Simmons had constructive notice of the common grantor’s general scheme or plan for the property in question and that a homeowners’ association would play a role in that scheme. Second, on the day she closed on the purchase of Lot 10, Simmons joined the HOA and paid the dues for the year 2012. And as of that day, at least nine of the fourteen properties — the properties on which a home had already been constructed — had sidewalks already installed. Third, when she obtained a loan on her property in July 2013, she acknowledged that Lot 10 was a part of a PUD known as Castle Point and that the PUD was governed by a homeowners’ association and a declaration and covenants, and she agreed to be bound by her obligations thereunder and to pay her dues, which she did during that same month.

“He who takes with notice of an equity takes subject to that equity.” OCGA § 23-1-16. And “[njotice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led. Ignorance of a fact due to negligence shall be equivalent to knowledge in fixing the rights of parties.” OCGA § 23-1-17. Here, construed in favor of the HOA, the above facts were sufficient to put Simmons on inquiry of the existence of a homeowners association, the general scheme of the development, and its declaration and covenants. See also OCGA § 44-3-223 (“Every lot owner and all those entitled to occupy a lot shall comply with all lawful provisions of the property owners’ association instrument....”). Accordingly, there is an issue of fact as to whether she is bound by the HOA covenants under the theory of implied covenants. See Westhampton, 227 Ga. at 645-646 (oral statements to owners of first three phases of development that the restrictions imposed on those phases would apply to owners of the fourth phase of development of the subdivision were enforceable in equity as implied covenants against the owners of the fourth phase).

Decided July 14, 2015 —

Reconsideration denied July 29, 2015

Atwood Choate, Sally C. Fox, for appellant.

Talley & Associates, Michelle L. Chaudhuri, for appellee.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

       This appeal is authorized by OCGA § 9-11-56 (h) (“An order granting summary judgment on any issue or as to any party shall be subject to review by appeal. . . .”).

       The development did not take on the form of a property owners’ development until “the recordation of the declaration.” OCGA § 44-3-222. Accordingly, McIntosh took title to the property identified in the security deed prior to the creation of the property owners’ development and free and clear of any associated restrictive covenants. Springmont Homeowners Assn. v. Barber, 221 Ga. App. 713 (472 SE2d 695) (1996). In Springmont, a hank took title pursuant to a security deed before restrictive covenants stated in a declaration were imposed on the property. Id. at 713-714. Accordingly, the hank’s security deed “had priority over the subsequently recorded Declaration.” Id. at 714 (citation omitted). “Although the Declaration bound those taking under the developer, it never became part of the chain of title between the developer and the Bank.” Id. Therefore the covenants were not enforceable against Barber, a person who purchased a lot that the bank had foreclosed upon. Id. The Springmont court thus concluded that “[b]ecause the deed the Bank conveyed to Barber was unencumbered by the Declaration and the Association failed to present any evidence showing that the Declaration applied despite its clear absence from the chain of title, summary judgment was appropriate.” Id.

       “Where a deed to land refers to a map or plat for a more complete description of the land conveyed, such map or plat will ordinarily be considered as incorporated in the deed itself.” Kilby, 203 Ga. at 257 (3) (b).


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A15A0430.
    JONES v. HOLLAND.
    (773 S.E.2d 797)
   MCFADDEN, Judge.

Raymond Jones filed a complaint against Harry Holland, Jr., for damages arising from a motor vehicle collision. The trial court granted summary judgment to Holland, finding no evidence of negligence by Holland. Jones appeals, challenging the grant of summary judgment. Because a review of the record reveals that there exist genuine issues of material fact as to Holland’s negligence, we reverse.

On appeal from the grant of summary judgment, we construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences. The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact. Our review of the grant or denial of a motion for summary judgment is de novo.

Johnson v. Omondi, 294 Ga. 74, 75-76 (751 SE2d 288) (2013) (citations and punctuation omitted).

So construed, the evidence shows that on December 30, 2008, Jones was using a tractor to move debris from his yard to a hole located across the road from his house. At approximately 5:00 p.m., Jones began backing the tractor out of his driveway. He looked both directions, saw no oncoming traffic, backed the tractor into the roadway and began to put the tractor in gear to go forward.

Meanwhile, Holland had pulled his pickup truck out of his driveway, which was located approximately 300 yards from Jones’ driveway. Holland saw Jones on the tractor in his yard, and believed that he was working on his driveway. Holland did not look at his speedometer, but opined that he was driving under the 35 mile-per-hour speed limit, going approximately 22 to 25 miles per hour because, he claimed, that was his usual speed on that road. Holland became blinded by the sun as he drove toward Jones’ driveway. The glare of the sun was so strong that Holland could not see anything in front of him on the road. Holland does not know how long he continued driving while blinded by the sun. Holland did not see the tractor on the road and slammed into it with the front of his truck. The collision threw Jones from the tractor onto the ground. Holland said that Jones’ daughter-in-law ran from the house to the scene of the crash and screamed at him for speeding on the road.

Questions of negligence, diligence, contributory negligence and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases. As we have stated previously, the routine issues of negligence cases are generally not susceptible of summary adjudication, and... summary judgment should not be granted in these cases unless the nonexistence of liability is plain, palpable, and indisputable. If reasonable minds can differ on the cause of the injury, the case is not plain, palpable, and indisputable and it should go to the jury.

Ga. Dept. of Human Resources v. Bulbalia, 303 Ga. App. 659, 663 (2) (694 SE2d 115) (2010) (citations and punctuation omitted).

Contrary to the trial court’s findings, this is not a case in which the nonexistence of liability is plain, palpable and indisputable. Based on the evidence of record, a jury could find that Jones properly entered the roadway because he looked in both directions and saw no vehicles approaching as he backed his tractor into the roadway. While OCGA § 40-6-73 requires a driver entering a roadway to yield to approaching vehicles, the statute “place [s] no duty on the driver entering the roadway to yield to even properly approaching vehicles if [they] are not visible to the driver of the entering vehicle. [Cit.]” Harrison v. Ellis, 199 Ga. App. 199, 201 (404 SE2d 348) (1991).

Further, a jury could find that Holland, even if he was driving under the posted speed limit, still drove his pickup at an unreasonable speed while being blinded by the sun and unable to see the roadway ahead of him.

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. Consistently with the foregoing, every person shall drive at a reasonable and prudent speed . . . when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

OCGA § 40-6-180. Indeed, when a driver’s “eyes are blinded by the sun or by lights, he is required to exercise care and caution in keeping a lookout commensurate with the increased danger.” Sprayberry v. Snow, 59 Ga. App. 744, 748 (1 SE2d 756) (1939) (citation and punctuation omitted), reversed on other grounds, Sprayberry v. Snow, 190 Ga. 723 (10 SE2d 179) (1940). Nevertheless, “[w]e recognize that a driver, however prudent he may be, must have time enough after being suddenly blinded [by the sun] to realize the situation with which he is confronted before he can be expected to stop his vehicle.” Brown v. Atlanta Gas Light Co., 96 Ga. App. 771, 776 (1) (101 SE2d 603) (1957).

In this case, there is evidence that the roadway was clear when Jones pulled into it and that Holland continued to drive toward Jones’ driveway even after he became blinded by the sun. In fact, Holland’s own deposition testimony could be construed to provide that he drove while blinded for at least as long a time period as it took Jones to back his tractor from the yard near his house down his driveway and into the road. Under these circumstances, there exist genuine issues of material fact as to whether Holland negligently failed to slow down or stop his vehicle even though he could not see the roadway ahead of him. See Stanfield v. Smith, 152 Ga. App. 22 (1) (262 SE2d 216) (1979) (questions of fact created by evidence, from which jury could have concluded that sun was shining directly into driver’s eyes and caused temporary blindness which led to collision without fault on his part, although such a conclusion certainly was not demanded by the evidence); Brown, supra at 775-776 (finding driver failed to exercise ordinary care where he continued to drive 300 feet at speed of 25 miles per hour after being blinded by sun shining in his eyes).

Under Georgia law, all drivers have a duty

to exercise ordinary care with regard to other drivers on or users of the [road] way. Specifically, every driver is under a duty to keep a proper lookout for potential hazards. A driver has no right to assume that the road ahead of him is clear of traffic, and it is his duty to maintain a diligent outlook ahead.

Decided July 8, 2015 —

Reconsideration denied July 29, 2015.

McArthur Law Firm, Katherine L. McArthur, Caleb F. Walker, Laura K. Hinson, for appellant.

Bullard & Wangerin, Daniel Bullard IV; Young, Thagard, Hoffman, Smith, Lawrence & Shenton, John H. Smith, Jr., for appellee.

Eatmon v. Weeks, 323 Ga. App. 578, 579 (746 SE2d 886) (2013) (citations and punctuation omitted). Because a jury could find that Holland breached his duty to maintain a diligent lookout ahead, “the trial court erred in granting summary judgment on behalf of [him].” Young v. Kitchens, 228 Ga. App. 870, 874 (3) (492 SE2d 898) (1997) (citation omitted).

Judgment reversed.

Ellington, P. J., and Dillard, J., concur.


author: Branch, Judge.

text:
    A15A0598.
    QENKOR CONSTRUCTION, INC. v. EVERETT.
    (773 S.E.2d 821)
   Branch, Judge.

Qenkor Construction, Inc. (“QCI”) sued John Everett, the former sheriff of Chattooga County, alleging that Everett’s conduct in executing a search warrant resulted in trespass against and the conversion of certain property belonging to QCI. Everett moved for summary judgment, asserting that QCI’s claims against him were barred by official immunity. Everett further argued that QCI could not prevail on its claims for trespass and conversion because, regardless of whether he was entitled to immunity, his conduct was otherwise authorized by law. The trial court granted Everett’s motion in a one-sentence order that contained no findings of fact or conclusions of law. QCI now appeals from that order. For reasons explained below, we find that Everett is entitled to official immunity for the conduct that serves as the basis for QCI’s trespass claim, and we therefore affirm the grant of summary judgment on that claim. We reverse the grant of summary judgment on QCI’s claim for conversion, however, because we find that questions of fact exist as to whether Everett converted QCI’s property and, if so, whether he acted with actual malice in doing so.

Summary judgment is proper if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). We review a trial court’s ruling on summary judgment de novo, “viewing the evidence in the record, as well as any inferences that might reasonably be drawn from that evidence, in the light most favorable to the nonmoving party,” Beale v. O’Shea, 319 Ga. App. 1, 2 (735 SE2d 29) (2012) (citation and punctuation omitted), and bearing in mind that the “trial court is not authorized to resolve disputed issues of material fact.” Ly v. Jimmy Carter Commons, LLC, 286 Ga. 831, 833 (1) (691 SE2d 852) (2010) (citation omitted).

Viewed in the light most favorable to QCI, as the nonmovant, the record shows that QCI is a construction company and William Benefield served as its sole officer and shareholder. Benefield’s mother, Sandra Weaver, served as QCI’s accountant, and in that capacity she had access to QCI’s bank accounts. Weaver was also QCI’s landlord. Specifically, the record shows that Weaver owned a company called North Georgia Computerized Services (“NGCS”) which offered computer repair, as well as word processing, desktop publishing, and tax preparation and other business-related services. NGCS’s offices were housed in a building owned by Weaver and listed on the Chattooga County tax records as being located at 11195 Highway 27, Summerville. When QCI began operation in August 2009, Benefield divided this building into two interior halves by placing a wall with a locked door in the middle of the structure. Each side of the building had its own entrance, and QCI and NGCS maintained signage advertising their respective businesses on their respective sides of the building. Additionally, QCI placed a mailbox on its side of the building with the street number 11193, and QCI listed its address as 11193 Highway 27, Summerville. There is no evidence in the record showing how QCI came up with the address 11193, nor does the record show that any governmental entity viewed the building as being on two separate lots. Instead, it appears that 11193 was not considered an address for property tax purposes.

Although QCI provided a variety of home improvement services, its primary business was roof repair and replacement. QCI advertised its roofing services by offering customers a “free roof” if their current roof had been damaged by hail. When providing prospective customers with a damage assessment and repair estimate, QCI sales representatives would ask the customer to sign a contract known as a “subject to” agreement. Under the terms of this form contract, QCI would inspect the roof and report any damage to the homeowner’s insurer. The contract would become binding only if the insurer deemed the roof repair or replacement to be a covered loss under the homeowner’s policy. In that case, the customer would then be liable under the contract for any insurance deductible. Additionally, each of these contracts contained a liquidated damages clause, which provided that if, after the insurance company agreed to pay for the roof repair or replacement, the customer elected to use another company for those services, QCI would be entitled to 25 percent of the contract price as liquidated damages.

In the event a particular customer failed to pay any amount owed as a result of either his deductible or the liquidated damages clause, QCI would file a construction lien against the customer’s property. All liens filed by QCI were signed by Benefield and bore the notary seal and signature stamp of Sue Brown. In approximately late 2009 or early 2010, both the Chattooga County sheriff’s office and the state insurance commissioner’s office received several complaints about QCI’s filing of construction liens. Specifically, customers were complaining that they had signed a form believing they were authorizing QCI to go on their roof and provide them with an estimate and then discovered that a construction lien had been filed by QCI, even though the company had done no work on the property. Everett, who at the time was serving as the Chattooga County sheriff, contacted the insurance commissioner’s office about these complaints. As a result, investigator Doug Gaddis of the insurance commissioner’s office opened an investigation into QCI.

During the course of Gaddis’s investigation, he learned that Sue Brown had not, in fact, ever witnessed or notarized any of the QCI construction liens on which her notary seal and signature stamp appeared, a fact that both Benefield and Weaver eventually confirmed. Brown told investigators that she had worked for Weaver at NGCS from 2001 through 2008 and for several weeks during 2009. When Brown left Weaver’s employment, she left her signature stamp and notary seal with Weaver.

As a result of his investigation, Gaddis applied to the Chattooga County Magistrate Court for a search warrant for the building owned by Weaver and which housed the offices of both NGCS and QCI. The affidavit Gaddis submitted in support of the search warrant set forth facts learned during the investigation into QCI’s filing of construction liens. The affidavit further stated that as a result of QCI’s conduct with respect to the filing of construction liens, state investigators had reason to believe that Benefield and Weaver were engaged in the crimes of forgery and making false statements; that investigators were seeking additional evidence of such crimes, in the form of certain business, employment, and financial records, computers, computer systems, computer hardware, software, and data, and other computer-related equipment, notary stamps, notary seals, and signature stamps; and that investigators had reason to believe such evidence could be found inside a building located at 11195 Highway 27, Summerville.

The search warrant was issued and it described the premises to be searched as:

11195 Highway 27, Summerville, GA 30747 Listed with the Board of Assessors for Chattooga County as North Georgia Computerized Services, owned by Sandra Weaver. Commercial building located across Highway from McDonald’s restaurant and described as: a single level building with rock appearance half way up front and gray vinyl siding top front with gray shingle roof, bearing signs in window reading “Tax Service.”

Additionally, the warrant allowed police to search for and seize the items specified in the affidavit to the extent that such items could include evidence of forgery and the making of false statements.

At approximately 10:00 a.m. on April 21, 2010, officers with the Chattooga County sheriff’s office conducted a traffic stop of a car in which Weaver and Benefield were riding and arrested Benefield pursuant to a warrant. Officers then followed Weaver as she drove to the building that housed both the NGCS and QCI offices. At the direction of Everett and/or other officers with the Chattooga County sheriff’s office, Weaver unlocked the outside entrance to the QCI office, and Everett, Gaddis, additional officers with the Chattooga County sheriff’s office, and investigators with the insurance commissioner’s office executed the search warrant. The entire building was searched, including the offices of both QCI and NGCS. After Gaddis told one or more officers that Weaver was not under arrest, she was allowed to leave the scene. Weaver went to the bank where she withdrew $13,000 cash from QCI’s account, intending to use that money to post bond and retain an attorney for Benefield.

As Weaver drove back by the NGCS/QCI building following her trip to the bank, officers flagged her down to ask about keys to the filing cabinets in the NGCS office. Weaver pulled into the parking lot of a car wash situated behind her building, and spoke with officers while sitting on a stone wall that divided the two properties. Officers went on to the car wash property and searched Weaver’s car, in which they found her pocketbook and the $13,000 cash it contained. During a discussion with Kandy Dodd, an investigator with the sheriff’s office, Weaver stated that she was the person who had notarized the construction liens filed by QCI, using the notary seal and signature stamp of Sue Brown. Dodd reported this information to Gaddis, and Gaddis and Everett then interviewed Weaver in the NGCS office. During that interview, Everett announced that he was seizing the $13,000 cash found in Weaver’s pocketbook as evidence. According to Weaver, Everett stated that he was seizing the cash because the QCI bank account should have been frozen. Weaver also testified that her understanding from one of the insurance commissioner’s investigators was that they were refusing to seize the cash because it was not covered by the warrant.

At some point either during or after her interview with Everett and Gaddis, Weaver was arrested. There is conflicting testimony as to whether the cash was seized before or after Weaver was placed under arrest. The undisputed evidence shows, however, that QCI’s bank accounts were never frozen.

Weaver began calling Everett, who is also her first cousin, in September or October 2010 seeking the return of the property taken during the execution of the search warrant, especially NGCS’s computer equipment and QCI’s cash. Everett told Weaver that he did not have any of the seized property, including QCI’s cash, because it had all been taken by the insurance commissioner’s office and was in Atlanta. When Weaver contacted Gaddis, however, Gaddis told her that the sheriff had all of the seized property. Weaver again contacted Everett, who again insisted that he did not have any of the seized property, including the cash. In early November 2010, Weaver called Gaddis a second time about the return of the property at issue, including QCI’s cash. Gaddis advised Weaver to contact the office of the Chattooga County district attorney. Weaver did so and on approximately December 21 or 22, Gaddis called her and told her the seized property could be picked up at the sheriff’s office. Benefield went and retrieved the items, but the cash was not among the property returned. Weaver again contacted the district attorney’s office, which then sent a letter to Everett instructing him to return QCI’s cash. Everett returned the money in either late December 2010 or early January 2011.

In November 2011, Benefield and Weaver were each indicted on forty-six counts of forgery in the first degree and nine counts of making a false statement. The charges against Benefield were nolle prossed on August 16, 2012, and the charges against Weaver were nolle prossed one year later, on August 19, 2013.

1. QCI seeks to hold Everett liable for conduct he engaged in while performing his duties as Chattooga County sheriff. Given this fact, we begin with the question of whether Everett is entitled to immunity from QCI’s claims.

“As a general rule, a county law enforcement officer enjoys official immunity from a lawsuit alleging that she is personally liable in tort for her performance of official functions.” Eshleman v. Key, 297 Ga. 364, 365 (1) (774 SE2d 96) (2015) (citations and footnote omitted). Such immunity is abrogated, however, in two specific circumstances. First, no immunity exists where the officer acted “with malice or an intent to injure.” Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001) (footnote omitted). Second, an officer is without immunity for the negligent performance of a purely ministerial duty. Id. The Supreme Court of Georgia has explained the difference between the ministerial functions of a law enforcement officer and official functions that involve the officer’s exercise of discretion as follows:

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Whether the act of a public official is ministerial or discretionary is determined by the facts of each individual case, particularly the facts specifically relevant to the official’s act or omission from which the alleged liability arises.

Grammens v. Dollar, 287 Ga. 618, 619-620 (697 SE2d 775) (2010) (citations and punctuation omitted).

A ministerial duty may be established by evidence such as a written policy, an unwritten policy, a supervisor’s specific directive, or a statute. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.

Roper v. Greenway, 294 Ga. 112, 115 (751 SE2d 351) (2013) (citations and punctuation omitted).

Bearing these principles in mind, we turn to the question of whether the trial court properly granted summary judgment to Everett on QCI’s claims for trespass and conversion.

2. Under Georgia law, all citizens are afforded “an absolute right of enjoyment of their property, and ‘every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie.’ OCGA § 51-9-1.” Nichols v. Ga. Television Co., 250 Ga.App. 789,790 (1) (552 SE2d 550) (2001). The conduct which serves as the basis for QCI’s trespass claim is the execution of the search warrant. At the time the warrant was executed, the Chattooga County sheriff’s office had in place a written policy concerning the execution of search warrants. That written policy provided, in relevant part:

Prior to the execution of a search warrant, an officer of supervisory rank shall have reviewed the affidavit and warrant and the circumstances of its issuance to ensure the requirements of the law are being met, and that all necessary elements are present, even though the warrant may have already been signed by the appropriate authority.

In this case, Everett admitted that he did not review the warrant prior to its execution. QCI contends that this failure to review the warrant constitutes a breach of a ministerial duty that resulted in the trespass to QCI’s property. Specifically, QCI asserts that had Everett fulfilled his ministerial duty to review the search warrant, he would have seen that the warrant was only for 11195 Highway 27 and therefore did not cover QCI’s offices, which were ostensibly located at 11193 Highway 27. And because Everett negligently failed to perform this ministerial duty, QCI argues, he is not entitled to immunity for his conduct. This argument fails for two reasons.

First, the undisputed evidence shows that the written policy in question applied only to those search warrants that were procured by officers with the Chattooga County sheriff’s office. Both Everett and Mark Schrader, the current Chattooga County sheriff, testified that the policy did not apply to warrants that were procured by other state agencies, including the insurance commissioner’s office. Each of these men also testified that the policy did not require the Chattooga County sheriff’s office to review such warrants even where its officers were being used to assist in the execution of the same. This testimony, which is unrefuted, shows that the decision whether to review a search warrant procured by another state agency remained entirely within the discretion of the Chattooga County sheriff and/or any other supervising officer. Thus, Everett’s decision not to review the search warrant at issue is protected by official immunity.

QCI’s argument also fails because it is premised on an erroneous assumption — i.e., it assumes that the warrant in question did not allow the search of its offices. “The requirement that a search warrant particularly describe the place to be searched is fulfilled if the warrant contains a description that sufficiently permits a prudent officer executing the warrant to locate the premises, person or property to be searched definitely and with reasonable certainty, and without depending upon his discretion.” State v. Hicks, 269 Ga. App. 741, 742-743 (605 SE2d 34) (2004) (citation and punctuation omitted). The degree of specificity required in a warrant “is flexible and will vary with the circumstances involved.” Fair v. State, 284 Ga. 165, 170 (3) (a) (664 SE2d 227) (2008) (citation and punctuation omitted). In evaluating whether a particular warrant sufficiently described the location to be searched, we read the warrant as a whole and consider it in conjunction with other evidence. Hicks, 269 Ga. App. at 743. Such evidence includes the supporting affidavit and whether one or more of the executing officers were familiar with the location to be searched and was therefore not dependent solely upon the warrant’s description to find the property. See Anderson v. State, 249 Ga. 132, 135-136 (5) (287 SE2d 195) (1982).

The search warrant at issue was for a building “fljisted with the Board of Assessors for Chattooga County” as being located at 11195 Highway 27, Summerville; as being “[NGCS], owned by Sandra Weaver”; as being a “[cjommercial building located across Highway [27] from McDonald’s restaurant and described as: a single level building with rock appearance half way up front and gray vinyl siding top front with gray shingle roof, bearing signs in window reading ‘Tax Service.’ ” (Emphasis supplied.) The record shows that QCI’s offices were, in fact, located in the building described in the warrant. Accordingly, even though the building had been partitioned and QCI had begun using an address that was not listed in the county tax records, the search warrant allowed police to search QCI’s offices.

A search warrant for a multi-unit structure will be valid, even if it fails to specify the particular sub-unit to be searched, “where (1) there is probable cause to search each unit; (2) the targets of the investigation have access to the entire structure; or (3) the officers reasonably believed that the premises had only a single unit.” Fletcher v. State, 284 Ga. 653, 655 (3) (670 SE2d 411) (2008) (punctuation and footnote omitted). Although the warrant will be considered valid under any one of these scenarios, in this case all three circumstances were present. First, the warrant allowed police to search and seize the customer files and financial records, including the bank and payroll records, of QCI. Weaver had access to QCI’s bank accounts and served as the company’s accountant and may have been providing those services through NGCS. Thus, as the affidavit in support of the warrant reflects, there was probable cause to believe that the evidence sought could be found in either the QCI offices or the NGCS offices. Additionally, Weaver, who was one of the targets of the investigation, had access to the entire structure, as evidenced by the fact that she had keys to both the interior and exterior doors used to access QCI’s space. Finally, despite QCI’s use of the 11193 address, law enforcement had a reasonable belief that the building at issue was in fact a single unit. In this regard, the record shows that Weaver had owned the building since 1995; that until approximately August 2009 (less than one year before the search), the building had been a single unit; that in 2009 interior modifications were made that divided the building into two units; that Weaver never informed the tax assessor’s office of the change in her building; that although QCI had installed a mailbox on its side of the building, had placed the address 11193 on the mailbox, and began using 11193 as its business address, 11193 was never recognized as an address for tax assessment purposes; that no evidence shows that the 11193 street address existed prior to August 2009; and that both the building and the lot on which it was situated were listed in the relevant public records as having the address 11195.

In light of the foregoing, we find that the warrant authorized the police to search the entire building in which QCI’s offices were located, including the space occupied by QCI. See United States v. Bradley, 644 F3d 1213, 1266 (III) (A) (1) (d) (11th Cir. 2011) (although the warrant referred to the building as bearing the name of a specific company (Seratech) “the warrant’s invocation of Seratech merely described the building to be searched. It did not restrict the agents’ search to the premises known as or controlled by Seratech. Instead, the warrant permitted the search of the entire building so long as the agents reasonably believed they would find ‘[i]tems to be seized’ [under the warrant] in the location of their search.”) (emphasis in original). Thus, Everett’s conduct in executing the warrant cannot support a claim for trespass, and the trial court did not err in granting summary judgment to Everett on this claim.

3. We next address whether the trial court erred in granting summary judgment against QCI on its claim for conversion. Under Georgia law, both cash and checks may be the subject of a conversion claim, and conversion is defined as

an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation. Any distinct act of dominion wrongfully asserted over another’s property in denial of his right, or inconsistent with it, is a conversion.

Decatur Auto Center v. Wachovia Bank, 21 & Ga. 817, 819 (583 SE2d 6) (2003) (punctuation and footnote omitted), quoting Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (1) (356 SE2d 877) (1987). In this case, QCI argues that Everett converted the $13,000 cash belonging to QCI and which he seized from Weaver and subsequently refused to return for approximately nine months.

On appeal, Everett offers four arguments to support the grant of summary judgment in his favor on QCI’s conversion claim. Specifically, Everett argues that his seizure of the cash was authorized by the search warrant; that his seizure of the cash was authorized by law; that he did not unlawfully retain QCI’s funds; and that in seizing and retaining the cash, he was exercising his discretionary authority and therefore his conduct is protected by official immunity.

(a) Despite Everett’s arguments to the contrary, the search warrant did not authorize his seizure of the cash — a fact that Everett admitted at his deposition. As an initial matter, the cash was not discovered as the result of the search warrant’s execution. Rather, police discovered the money during a warrantless search of Weaver’s car and pocketbook. And at the time of the discovery, neither the car nor the purse was on the premises covered by the warrant.

Moreover, even if we assume the warrant somehow authorized the search of Weaver’s car and purse, the warrant did not authorize police to seize any cash they located during the execution of the warrant. The law requires that warrants describe with particularity the items to be seized and as a general rule, an officer may not seize anything not specified in the warrant. See State v. Rogers, 319 Ga. App. 834, 836 (2) (738 SE2d 667) (2013) (a “warrant shall particularly describe the things to be seized and the search must be limited to that matter described”) (footnote omitted). Courts have recognized only two exceptions to this rule. First, where the warrant contains a residual clause allowing officers to seize “other evidence” of specifically enumerated crimes, officers may seize any such evidence discovered during the warrant’s execution. See Reaves v. State, 284 Ga. 181, 185-186 (2) (d) (664 SE2d 211) (2008). Similarly, even in the absence of a residual clause,

an officer in the process of executing a lawful search warrant is authorized under OCGA § 17-5-21 (b) to seize any item, other than private papers, which he has probable cause to consider tangible evidence of the commission of a crime, even though the property is not listed in the warrant [,]

provided “that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be seen and that the incriminating character of the evidence was immediately apparent.” Bryant v. State, 304 Ga. App. 456, 460-461 (2) (696 SE2d 439) (2010) (citations, punctuation and footnotes omitted).

In this case, the warrant did not authorize the seizure of cash or checks. Furthermore, the warrant contained no residual clause and it authorized the police to search only for evidence of the crimes of forgery and making false statements in conjunction with the filing of construction liens. Such liens, in turn, were filed against only those customers who had failed to pay QCI amounts QCI claimed it was owed. As a matter of logic, cash in QCI’s possession could not serve as evidence in cases involving customers who had refused to pay QCI. Accordingly, the cash was not subject to seizure under the search warrant.

(b) Everett further argues that even if not authorized by the search warrant, the seizure of the cash was proper as part of a police inventory incident to Weaver’s arrest and/or that it was authorized by OCGA § 17-5-28. These arguments are without merit.

(i) Under OCGA § 17-5-1, “[w]hen a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within the person’s immediate presence.” In this case, however, there is conflicting evidence as to whether the cash was seized before or after Weaver’s arrest. Accordingly, Everett is not entitled to summary judgment on the grounds that his seizure of the money was authorized under OCGA § 17-5-1, as part of an inventory search pursuant to Weaver’s arrest.

(ii) Nor was the seizure of QCI’s money authorized by OCGA § 17-5-28, which allows police, under certain circumstances, to “detain or search any person” who is present on the premises during the execution of a search warrant. Even assuming that the discovery of the cash resulted from a search of Weaver conducted pursuant to this Code section, the fact remains that the cash was not subject to seizure, as it was not among the items “particularly described in the search warrant.” OCGA § 17-5-28 (2).

(c) Everett further argues that QCI’s conversion claim must fail because he did not wrongfully retain QCI’s money. Specifically, Everett argues that OCGA §§ 17-5-54 (d) (l) and 17-5-55 (a) allowed him to retain the cash until the disposition of any charges brought against either Benefield or Weaver. This argument, however, ignores the fact that the cash was not lawfully seized pursuant to the search warrant. The argument further assumes that the cash could or would be used as evidence against Benefield and/or Weaver on the charges of forgery and the making of false statements in connection with the filing of construction liens. As explained supra in Division 3 (a), however, the cash would not be relevant to Benefield’s or Weaver’s guilt as to those crimes. Finally, Everett’s argument on this issue ignores the fact that he refused to return the cash for approximately two months after the investigating entity (the insurance commissioner’s office) and the district attorney’s office had directed him to do so.

(d) We agree with Everett’s assertion that he seized and retained the cash while acting within the scope of his official duties as sheriff and that these acts were discretionary in nature. Thus, qualified immunity will shield Everett from liability on QCI’s conversion claim unless QCI can show that Everett acted “with actual malice or with actual intent to cause injury.” Ga. Const. 1983, Art. I, Sec. II, Par. IX (d). See also Phillips v. Hanse, 281 Ga. 133, 134-136 (2) (637 SE2d 11) (2006). In this context, actual malice means

“express malice,” i.e., “a deliberate intention to do wrong,” and does not include “implied malice,” i.e., the reckless disregard for the rights or safety of others. Merrow v. Hawkins, 266 Ga. 390, 391-392 [(2)] (467 SE2d 336) (1996). A “deliberate intention to do wrong” such as to constitute the actual malice necessary to overcome official immunity must be the intent to cause the harm suffered by the plaintiffs.

Murphy v. Bajjani, 282 Ga. 197, 203 (4) (647 SE2d 54) (2007).

Here, we find a jury question exists as to whether Everett acted with actual malice in allegedly converting QCI’s money. Evidence from which the jury could infer such malice includes the fact that seizure of the funds was not authorized by the search warrant and that Everett acknowledged this fact at his deposition; that an investigator with the insurance commissioner’s office warned Everett against seizing the money for that reason; that despite the fact he took possession of the money, Everett insisted to Weaver that the money was located at the insurance commissioner’s office in Atlanta; that even after being directed by the district attorney’s office to return the property seized pursuant to the search warrant, Everett refused to return the cash; and that Everett returned the money only after being directed to do so a second time by the district attorney, with the district attorney having to put this instruction in writing. Additionally, there is some evidence showing that Everett may have had some personal animosity toward Weaver and/or Benefield as a result of strained family relations caused by Everett’s execution of the search warrant against his cousins.

Decided July 15, 2015 —

Reconsideration denied July 29, 2015 —

Betts & Associates, David E. Betts, for appellant.

Womack, Gottlieb & Rodham, Ronald R. Womack, Steven M. Rodham, for appellee.

As the foregoing discussion demonstrates, the evidence shows genuine issues of material fact as to whether Everett’s conduct constituted conversion and, if so, whether Everett acted with actual malice. The trial court therefore erred in granting summary judgment to Everett on QCI’s claim for the conversion of its cash.

For the reasons set forth above, we affirm the trial court’s grant of summary judgment in favor of Everett on QCI’s claim for trespass, as well as any conversion claim based upon Everett’s seizure of items named in the search warrant at issue. We reverse the grant of summary judgment to Everett on QCI’s claim for conversion of its cash. The case is remanded for proceedings consistent with this opinion.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Miller, J., concur.

       Because the trial court offered no insight into the bases for its grant of Everett’s summary judgment motion, QCI argues on appeal that neither of the grounds asserted in that motion supports the trial court’s order.

       At the same time, other officers also executed search warrants that had been issued for the homes of both Benefield and Weaver.

       According to Weaver, her car was searched four times on the day in question: twice while it was parked at her building; once at her home; and once while it was parked at the car wash located adjacent to her building.

       QCI has sued Everett only in his personal capacity and therefore sovereign immunity is not at issue in this case. See Seay v. Cleveland, 270 Ga. 64, 65 (1), n. 1 (508 SE2d 159) (1998) (a sheriff sued in his personal capacity will be protected “only to the extent official or qualified immunity applies”; sovereign immunity is applicable only where a sheriff is sued in his official capacity). And because he has not been sued in his official capacity, Everett may be held liable only for conduct that he personally engaged in. Id. See also Gilbert v. Richardson, 264 Ga. 744, 754 (452 SE2d 476) (1994) (a sheriff may be held liable under the doctrine of respondeat superior for the conduct of his officers only where the sheriff has been sued in his official capacity).

       There is no allegation that Everett acted with actual malice in failing to review the search warrant.

       We note that Everett cannot be held liable for the conversion of QCI’s computers, business records, and other business property. For the reasons explained in Division 2, the seizure of those items was justified under the search warrant. Thus, to the extent that QCI asserted a conversion claim as to those items, we affirm the grant of summary judgment to Everett. Our discussion in Division 3 relates only to QCI’s claim for the alleged conversion of its cash.

       OCGA § 17-5-28 provides: “In the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time: (1) To protect himself from attack; or (2) To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.”

       Everett also argues that because QCI had no possessory or privacy interest in Weaver’s purse, the company is without standing to challenge the seizure of the cash from Weaver. This argument would be relevant if Benefield (as QCI’s sole officer and shareholder) was challenging the State’s use of the cash and its discovery as evidence of Benefield’s guilt in a criminal action against him. See, e.g., Jones v. State, 320 Ga. App. 681, 685-686 (2) (740 SE2d 655) (2013). Benefield’s standing to challenge the admissibility of such evidence in a criminal prosecution, however, is wholly irrelevant to QCI’s claim for conversion of its cash.

       This Code section provides in relevant part:
      After a period of 90 days following the final verdict and judgment, when personal property that is in the custody of a law enforcement agency was used as evidence in a criminal trial ... it shall be subject to disposition as provided in subsection (e) of this Code section ... if it is ... [n]o longer needed in a criminal investigation or for evidentiary purposes in accordance with Code Section 17-5-55 or 17-5-56[.]
      OCGA § 17-5-54 (d) (1).

       This Code section provides, in relevant part:
      . . . After verdict and judgment has been entered in any criminal case, the person who has custody of the physical evidence introduced in the case shall inventory the evidence and create an evidence log within 30 days of the entry of the judgment. Within 30 days following the creation of the evidence log, physical evidence shall be returned to the rightful owner of the property unless the physical evidence itself is necessary for the appeal of the case, for a new trial, or for purposes of complying with this Code section or Code Section 17-5-56. . . .
      OCGA § 17-5-55 (a).


author: BARNES, Presiding Judge.

text:
    A15A0642.
    PALATINI v. THE STATE.
    (774 S.E.2d 818)
   BARNES, Presiding Judge.

After allegedly pornographic images were found on his computer, Gerald David Palatini was arrested and later charged with one count of sexual exploitation of children. Following the trial court’s denial of his special demurrer, we granted Palatini’s application for interlocutory appeal. He now appeals and contends that the trial court erred in denying the special demurrer because the indictment alleged that the offense occurred on April 24,2009, but the uncontroverted date of the offense was December 7, 2007. He also contends that the indictment was unconstitutionally vague. For the reasons that follow, we affirm.

[Different standards apply to special demurrers filed before trial and those filed after trial. Because we are reviewing [Palatini’s] indictment before any trial, we do not conduct a harmless error analysis to determine if he has actually been prejudiced by the alleged deficiencies in the indictment.

Blackmon v. State, 272 Ga. App. 854 (614 SE2d 118) (2005). Instead, pre-trial,

an accusation or indictment is subject to special demurrer if it is not perfect in form as well as substance. By special demurrer an accused claims, not that the charge in an indictment or accusation is fatally defective and incapable of supporting a conviction (as would be asserted by general demurrer), but rather that the charge is imperfect as to form or that the accused is entitled to more information.

(Punctuation and footnote omitted.) State v. Jones, 251 Ga. App. 192, 193 (553 SE2d 631) (2001).

When presented with a special demurrer, the court should examine the indictment [or accusation] from the perspective that the accused is innocent, for this is what the law presumes. Nevertheless, the language of an indictment [or accusation] is to be interpreted liberally in favor of the State, while the accused’s objections to the indictment [or accusation], as presented in a special demurrer, are strictly construed against the accused.

(Citations and punctuation omitted.) State v. Corhen, 306 Ga. App. 495, 497-498 (700 SE2d 912) (2010). “We review rulings on special demurrers de novo.” State v. Leatherwood, 326 Ga. App. 730, 731 (757 SE2d 434) (2014).

The evidence shows that law enforcement seized Palatini’s computer in December 2007, Palatini was arrested on April 24,2009, and he was indicted on March 15, 2010. In the First Indictment, Palatini was charged with six counts of sexual exploitation of children, five for possessing specific digital images on his computer “depicting a minor engaged in a lewd exhibition of her genitals or pubic area, sexually explicit conduct, in violation of OCGA § 16-12-100 (b),” and the sixth count for possessing “numerous digital images, depicting minor female children, engaged in lewd exhibition of their genital area, in violation of OCGA § 16-12-100 (b) (8).” The dates alleged in the indictment were “between the 1st day of August, 2006, and the 31st day of December, 2007, the exact date of the offense being unknown to the Grand Jury.” Palatini moved to quash Count 6, arguing that the language “numerous computer images of material depicting individual minor females engaged in lewd exhibitions” was vague and failed to put him on notice of which images the State alleged were illegal. On March 9, 2011, upon a motion by the State, the trial court entered a consent order of nolle prosequi of the First Indictment.

The State then issued a Second Indictment, which contained a single count mirroring the language of Count 6 in the First Indictment, but stating that the offense had occurred “on or about the 24th day of April, 2009.” Palatini filed a special demurrer to the Second Indictment, arguing, among other things, that the indictment was too vague and that the date alleged in the indictment was impossible because the State had seized his computer by then.

On October 29, 2012, the State returned a Third Indictment against Palatini. The six-count Third Indictment was identical to the First Indictment. Palatini filed a special demurrer to the Third Indictment, and the trial court granted the motion on the basis that it was returned outside the statute of limitation and could not be deemed a superseding indictment from the Second Indictment because it broadened the charges from one count to six counts.

Subsequently, the trial court held a hearing on Palatini’s special demurrer to the Second Indictment, which was the only pending indictment. At the hearing, Palatini asserted that the charge in the indictment should be quashed because the GBI had seized his computer in 2007, so he could not have possessed the images on the April 24,2009 date alleged in the indictment, and thus it was impossible for him to have committed the crime as charged. The trial court rejected Palatini’s argument and denied his special demurrer.

Generally, to be perfect in form, an indictment must allege a specific date on which the crime was committed. Blackmon, 272 Ga. App. at 854. See also OCGA § 17-7-54. It follows that an indictment that fails to specify the date upon which the crime occurred is subject to special demurrer. Blackmon, 272 Ga. App. at 854. Additionally, an indictment is subject to special demurrer for being imperfect in form if it charges that an offense occurred on a day subsequent to the date when the indictment was returned. See Gunn v. State, 227 Ga. 786, 787 (2) (183 SE2d 389) (1971); Spencer v. State, 123 Ga. 133 (51 SE 294) (1905).

Here, however, the indictment alleges a specific date on which the crime of sexual exploitation of children was committed. Moreover, the day of the crime as alleged in the indictment was not after the date upon which the indictment was returned. Accordingly, the indictment was not subject to special demurrer for being imperfect in form. Compare Blackmon, 272 Ga. App. at 855 (the indictment that failed to allege specific date on which crime committed was not perfect in form); Langlands v. State, 280 Ga. 799, 800 (3) (633 SE2d 537) (2006) (noting that defendant may challenge indictment date as impossible by way of special demurrer when offense was alleged to have been committed after he was indicted).

While Palatini argues that the date of the crime charged in the indictment was after the date his computer was seized by the police, his argument concerns the underlying evidence in the case rather than the form of the indictment. Consequently, his argument does not support the grant of a special demurrer in this case.

Palatini also contends that the indictment was unconstitutionally vague and should have specified which illegal images he possessed rather than simply that he possessed “numerous digital images, depicting minor female children, engaged in lewd exhibition of their genital area.” However, the indictment charged the offense in the language of OCGA § 16-12-100 (b) (8), and provided Palatini with the description of the particular act constituting the violation of the statute. OCGA § 17-7-54 provides: “Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct.”

The true test of the sufficiency of an indictment to withstand a special demurrer is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. It is useful to remember that the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy.

Decided July 14, 2015 —

Reconsideration denied July 29, 2015

Gammon, Anderson & McFall, W. Wright Gammon, Jr., for appellant.

Coalson v. State, 251 Ga. App. 761, 764 (2) (555 SE2d 128) (2001).

Where the offense is purely statutory, having no relation to the common law, it is, as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.

Kyler v. State, 94 Ga. App. 321, 324 (3) (94 SE2d 429) (1956). See Burgeson v. State, 267 Ga. 102, 103 (1) (475 SE2d 580) (1996) (indictment that tracks the language of the Code and can be “clearly and easily understood” sufficient).

Here, the statute forbids the knowing possession “or control [of] any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.” OCGA § 16-12-100 (b) (8). The indictment charged Palatini with possessing digital images displaying minor females engaged in statutorily proscribed conduct, “the lewd exhibition of their genital area.” This language was sufficient to place him on notice of the issues to be decided and to allow him an opportunity to prepare his defense, and further specificity in the indictment was not required.

Accordingly, we cannot say that the trial court erred as a matter of law in overruling Palatini’s special demurrer.

Judgment affirmed.

Ray, J., concurs. McMillian, J., concurs in the judgment only.

Jack Browning, Jr., District Attorney, Matthew S. Nestrud, Assistant District Attorney, for appellee.

       The State argues that our dismissal of a prior application for interlocutory appeal from essentially the same order should bar our consideration of this application. We have held, however, that the dismissal of an interlocutory application does not have res judicata effect. See Interfinancial Midtown v. Choate Constr. Co., 284 Ga. App. 747, 749 (1), n. 2 (644 SE2d 281) (2007).

       Although not at issue in this case, we have also recognized an exception to the rule that the State must identify a single date on which the offense occurred, when the State, in response to a special demurrer, “presents evidence to the trial court showing that it cannot more specifically identify the dates of the offenses.” Howard v. State, 281 Ga. App. 797, 798 (1) (637 SE2d 448) (2006). “[I]f an indictment [or accusation] alleges that a crime occurred between two particular dates, and if evidence presented to the trial court shows that the State can reasonably narrow the range of dates during which the crime is alleged to have occurred, the indictment [or accusation] is subject to a special demurrer.” State v. Layman, 279 Ga. 340, 341 (613 SE2d 639) (2005).


author: ANDREWS, Presiding Judge. BRANCH, Judge,

text:
    A15A0664.
    ATLANTA FLOORING DESIGN CENTERS, INC. v. R. G. WILLIAMS CONSTRUCTION, INC.
    (773 S.E.2d 868)
   ANDREWS, Presiding Judge.

R. G. Williams Construction, Inc. (Williams), the general contractor on a construction project, hired Atlanta Flooring Design Centers, Inc. (AFDC) as the flooring subcontractor for the project. Williams and AFDC entered into a written contract governing the work on the project which included a provision requiring that disputes under the contract be resolved by arbitration, and further stating:

The award rendered by the arbitrator[s] shall be final and binding on the parties and judgment upon the award may be entered in any court of competent jurisdiction. Contractor and Subcontractor hereby expressly agree not to challenge the validity of the arbitration or the award.

After a dispute was submitted to arbitration, and the arbitrator rendered an award, AFDC filed a motion pursuant to OCGA § 9-9-13 (a) of the Georgia Arbitration Code (GAC) seeking a court order vacating the award on the basis that its rights were prejudiced in the arbitration proceedings on the statutory grounds set forth in OCGA § 9-9-13 (b). Williams responded and moved to dismiss AFDC’s motion on the basis that the parties’ contractual agreement “not to challenge the validity of the arbitration or the award” precluded AFDC from seeking to vacate the award under the GAC. The reviewing court ruled that the contract language unambiguously precluded any challenge to the arbitration or the award pursuant to OCGA § 9-9-13; found that the agreement not to challenge the arbitration award was not unconscionable; and granted the motion to dismiss AFDC’s motion to vacate the award. AFDC appeals from the dismissal order. For the following reason, we find the reviewing court erred and reverse.

“The [GAC] requires a trial court to confirm an award upon the timely application of a party to the award, unless one of the statutory grounds for vacating or modifying the award is established.” Greene v. Hundley, 266 Ga. 592, 595 (468 SE2d 350) (1996); OCGA §§ 9-9-12; 9-9-13; 9-9-14. As quoted above, the contractual language at issue retains a party’s right to have the arbitration award confirmed and made a judgment of the court pursuant to the GAC, while waiving any right for a party to challenge the arbitration process or the award by seeking judicial review pursuant to the GAC to vacate or modify the award. In Brookfield Country Club v. St. James-Brookfield, LLC, 287 Ga. 408, 413 (696 SE2d 663) (2010), the Supreme Court considered the validity of contractual language which altered the statutory scheme of the GAC by expanding the scope of judicial review of an arbitration award. The Court

acknowledge [d] the fundamental principle that parties have the right to freely contract, [but recognized that] courts may not enforce a contractual provision which contravenes the statutory law of this state [,] . . . [and concluded that] the [GAC] does not permit contracting parties who provide for arbitration of disputes to contractually expand the scope of judicial review that is authorized by statute.

Id. (citation and punctuation omitted). Similarly, we conclude that the GAC does not permit contracting parties who provide for arbitration of disputes to contractually waive or eliminate a party’s right to apply to a court to vacate or modify an award on the statutory grounds set forth in OCGA §§ 9-9-13 and 9-9-14.

“Because [the GAC] closely tracks federal arbitration law, we look to federal cases for guidance in construing our own statutes.” Brookfield Country Club, 287 Ga. at 412 (citation and punctuation omitted). In In re Wal-Mart Wage & Hour Employment Practices Litigation, 737 F3d 1262, 1267 (9th Cir. 2013), the Court considered whether the statutory grounds for vacating an arbitration award under 9 USC § 10 (a) of the Federal Arbitration Act (FAA) (which sets forth grounds similar to those in OCGA § 9-9-13 (b) of the GAC) may be waived or eliminated by contract. The Court found that the text of the FAA compels the conclusion that the statutory grounds for vacatur under § 10 (a) “may not be waived or eliminated by contract.” In re Wal-Mart, 737 F3d at 1268. The Court reasoned that FAA statutory grounds for a court to review and vacate an award demonstrate Congressional intent to provide a minimum level of due process for parties to an arbitration, and that permitting parties to contractually eliminate this judicial review of awards would contradict the text of the FAA, frustrate that intent, and leave parties “without any safeguards against arbitral abuse.” Id. at 1268; Hoeft v. MVL Group, 343 F3d 57, 64-66 (2d Cir. 2003) (parties seeking to enforce an arbitration award through court confirmation cannot contract to divest courts of statutory authority under § 10 of the FAA to review and vacate the award).

Accordingly, we find that the contract provision stating that the parties “expressly agree not to challenge the validity of the arbitration or the award” conflicts with and frustrates Georgia public policy as expressed in the GAC, and is void and unenforceable, to the extent it prevents AFDC from challenging the validity of the arbitration or the award by filing a motion under OCGA § 9-9-13 for the court to vacate the award. See Brookfield Country Club, 287 Ga. at 413; Emory Univ. v. Porubiansky, 248 Ga. 391, 393-394 (282 SE2d 903) (1981) (contractual provision eliminating statutory duty of care void as against public policy). The reviewing court erred by dismissing AFDC’s motion to vacate.

Judgment reversed.

Miller, J., concurs. Branch, J., concurs specially and in the judgment.

BRANCH, Judge,

concurring specially.

Although I agree with the result reached in this appeal, I write separately to emphasize both the way this court views arbitration agreements generally and the uniqueness of the question presented in this case — that is, whether two commercial parties may agree to waive the right to contest an arbitration award on the limited grounds listed in Section 9-9-13 (b) of the Georgia Arbitration Code (GAC).

In this case, claimant Atlanta Flooring and Design Centers, Inc. (“AFDC”) filed an arbitration petition against R. G. Williams Construction, Inc. (“Williams”), a general contractor which had refused to pay AFDC as the flooring subcontractor on the ground that AFDC had delayed completion of its subcontract. AFDC filed a motion to vacate on the grounds that the arbitrator had overstepped his authority and manifestly disregarded the law when he awarded Williams liquidated damages. Williams moved to dismiss AFDC’s motion to vacate on the ground that in their agreement to arbitrate, the parties had “expressly agree [d] not to challenge the validity of the arbitration of [any] award” made. AFDC appeals from the trial court’s grant of Williams’s motion to dismiss AFDC’s motion to vacate the award.

As a preliminary matter, it bears repeating that “[i]n enacting the GAC, the General Assembly established a clear public policy in favor of arbitration.” Order Homes v. Iverson, 300 Ga. App. 332, 334-335 (685 SE2d 304) (2009) (punctuation omitted). As a result, “Georgia courts are required to uphold valid arbitration provisions in contracts.” Saturna v. Bickley Constr. Co., 252 Ga. App. 140, 142 (555 SE2d 825) (2001) (affirming arbitration provision in contract between homeowners and contractor). This is especially true of arbitration provisions agreed upon by two commercial parties such as those before us in this case. See Bishop Contracting Co. v. Center Bros., Inc., 213 Ga. App. 804, 805 (1) (445 SE2d 780) (1994) (upholding arbitration provision in contract between contractor and subcontractor). But this case also presents us with what I, like AFDC, believe to be a question of first impression: that is, whether two contracting parties may agree to waive their respective rights to seek vacatur of an arbitration award on the specific and limited grounds listed in OCGA § 9-9-13 (b).

In Brookfield Country Club v. St. James-Brookfield, LLC, 287 Ga. 408 (696 SE2d 663) (2010), the Supreme Court of Georgia held that the GAC “does not permit contracting parties who provide for arbitration of disputes to contractually expand the scope of judicial review that is authorized by statute.” Id. at 413 (citation omitted; emphasis supplied). But the case before us is one in which, by contrast, the parties sought to eliminate their right to obtain review of an arbitration award. The majority reads Brookfield as authority for the proposition that parties may neither expand nor limit the scope of judicial review authorized by the Code. As I explain below, while I agree with this proposition generally, I do not find it a necessary consequence of Brookfield. I also want to emphasize three explanatory points: that access to Georgia courts granted by statute may not be waived, even in this commercial context; that a party may seek to vacate an arbitration award under the strictly limited set of circumstances outlined in OCGA § 9-9-13 (b); and that we express no opinion on the merits of AFDC’s arguments for vacatur, which remain for the trial court to determine.

First, the Second Circuit’s decision in Hoeft v. MVL Group, 343 F3d 57 (2d Cir. 2003), disapproved on other grounds, Hall Street Associates v. Mattel, Inc., 552 U. S. 576, 585 (128 SCt 1396, 170 LE2d 254) (2008), provides a convincing rationale for the result reached by us in this case. Hoeft first notes what it takes to be a “fundamental difference between an agreement to increase the scrutiny that courts apply when considering whether to confirm or vacate an arbitration award” — that is, the fact pattern ruled on by our Supreme Court in Brookfield — “and an agreement to prevent courts from reviewing the substance of an arbitration award at all.” 343 F3d at 64. Like the Hoeft Court, we face the latter scenario, and we should reach the same result. As Hoeft explains:

An agreement that contemplates confirmation but bars all judicial review presents serious concerns. Arbitration agreements are private contracts, but at the end of the process the successful party may obtain a judgment affording resort to the potent public legal remedies available to judgment creditors. In enacting § 10 (a), Congress impressed limited, but critical, safeguards onto this process, ones that respected the importance and flexibility of private dispute resolution mechanisms, but at the same time barred federal courts from confirming awards tainted by partiality, a lack of elementary procedural fairness, corruption, or similar misconduct. This balance would be eviscerated, and the integrity of the arbitration process could be compromised, if parties could require that awards, flawed for any of these reasons, must nevertheless be blessed by federal courts. Since federal courts are not rubber stamps, parties may not, by private agreement, relieve them of their obligation to review arbitration awards for compliance with § 10 (a).

Id. at 64-65. Similarly, I believe that the parties to this arbitration agreement, who must turn to a Georgia court in order to confirm an arbitration award, were not empowered to relieve the Georgia courts of their obligation to review the same kind of award for the fundamental flaws identified in OCGA § 9-9-13 (b).

Second, I wish to emphasize, as the Supreme Court of Georgia has repeatedly done, that the grounds for vacatur set out in OCGA § 9-9-13 (b) are strictly limited, and do not provide for relief even when there is no evidence to support the arbitrator’s award or the arbitrator has made an inadvertent error of law. See Greene v. Hundley, 266 Ga. 592, 596-597 (3) (468 SE2d 350) (1996) (given that “[t]he prohibition against considering the sufficiency of the evidence as grounds for vacating an arbitration award is unconditional,” a court reviewing an arbitration award “is prohibited from weighing the evidence submitted before the arbitrator, regardless of whether the court believes there to be sufficient evidence, or even any evidence, to support the award.”); ABCO Builders v. Progressive Plumbing, 282 Ga. 308, 309 (647 SE2d 574) (2007) (a party seeking to prove that an arbitrator has shown “manifest disregard of the law” must show “not only [that] the correct law [was] communicated to an arbitrator, but that the arbitrator intentionally and knowingly chose to ignore that law despite the fact that it was correct”).

Decided July 16, 2015 —

Reconsideration denied July 29, 2015.

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

The Corso Law Center, Arturo Corso, for appellee.

Third, our result merely reverses the trial court’s grant of Williams’s motion to dismiss AFDC’s motion to vacate the arbitration award, such that AFDC’s motion to vacate remains pending below. It would be a misreading of our result, moreover, to infer any conclusion from it as to the merits of that pending motion. See, e.g., Berger v. Welsh, 326 Ga. App. 290, 297 (3) (756 SE2d 545) (2014) (reversing superior court’s vacatur of an arbitrator’s award when that award had stated no legal or factual rationale for the award such that the party moving to vacate had failed to make the “extremely difficult” showing of manifest disregard of the law).

Because I believe these matters require further explanation and require a slightly different analysis, I concur in the judgment only.

       Although Hoeft construes the Federal Arbitration Act (FAA), both the FAAand the GAC contain a provision detailing the limited grounds for challenging an arbitration award. See 9 USC § 10 (a); OCGA § 9-9-13 (b).

       OCGA § 9-9-13 (b) provides in relevant part that an arbitration award shall be vacated on the application of a party who either participated in the arbitration or was served with a demand for arbitration if the court finds that the rights of that party were prejudiced by: (1) Corruption, fraud, or misconduct in procuring the award; (2) Partiality of an arbitrator appointed as a neutral; (3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made; (4) A failure to follow the procedure of this part, unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection; or (5) The arbitrator’s manifest disregard of the law.

       See Court of Appeals Rule 33 (a) (“an opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said”).


author: McMlLLIAN, Judge.

text:
    A15A0676.
    ANDERSON v. ALL AMERICAN QUALITY FOODS.
    (773 S.E.2d 389)
   McMlLLIAN, Judge.

Appellant Wanda Anderson appeals, contending that the trial court erred by denying her motions to be designated indigent and dismissing her notice of appeal from the trial court’s order granting summary judgment to appellee All American Quality Foods (“Quality Foods”) and dismissing her second notice of appeal from the dismissal order. Having considered Anderson’s contentions on appeal, we now affirm.

Pertinent to these issues, the record shows that on November 22, 2010, Anderson filed a renewed complaint seeking damages for injuries she allegedly received when she slipped and fell in a Food Depot store owned and operated by Quality Foods in Stockbridge, Georgia. The trial court entered an order granting summary judgment to Quality Foods on March 28,2012, and Anderson filed a notice of appeal and motion for reconsideration from that order on April 27, 2012 (“first notice of appeal”); Anderson’s notice of appeal directed the trial court clerk to include the entire record on appeal, including the transcript from the summary judgment hearing.

A hearing was held on Anderson’s motion for reconsideration of the summary judgment order on June 27, 2012, and the trial court denied Anderson’s motion in July 2012. On August 21, 2012, Anderson filed an amended notice of appeal to this Court and again directed the trial court clerk to include the entire record on appeal, including the hearing transcripts. The original and amended notices of appeal were signed by Anderson’s attorney, who listed his address as “116 S. Main Street, Suite 9, Jonesboro, Georgia 30236.” Also on August 21, 2012, the clerk of the State Court of Henry County sent Anderson’s attorney a statement for costs totaling $299, specifically stating that costs had to be paid within 20 days from the date of the statement. This notice of costs was sent by certified mail to the same address listed for Anderson’s attorney on her original and amended notices of appeal.

On September 11, 2012, the trial court issued a rule nisi for a hearing on the status of Anderson’s notice of appeal and to show cause why her notice of appeal should not be dismissed. On October 15, 2012, Anderson filed a motion for designation of indigency pursuant to OCGA § 9-15-2 and requested to be provided with a free copy of the motion hearing transcripts. Anderson attached an affidavit of indigence to her motion, which stated that she was unable to pay the costs of the appeal and the hearing transcripts.

Quality Foods filed a brief opposing Anderson’s motion on October 24, 2012, noting Anderson’s failure to serve Quality Foods’ counsel with the amended notice of appeal and that Anderson had waited, three months from the denial of her motion for reconsideration, and almost two months from the time the trial court clerk sent the statement of appeal costs, to file her motion to be designated indigent and relieved of the costs of pursuing her appeal and obtaining the transcripts. On October 29, 2012, the trial court issued an amended rule nisi, to provide for a hearing on Anderson’s indigency status and her entitlement to a free copy of the transcript.

On April 3, 2014, the trial court entered an order dismissing Anderson’s notice of appeal. The trial court found that it had attempted to determine Anderson’s indigent status at the November 6, 2012 hearing, but that Anderson failed to appear at the hearing and that, therefore, it could not issue a finding of indigency; further, the trial court found that Anderson’s October 15, 2012 affidavit of indigence was untimely because it was not filed until approximately 139 days after the transcripts were due to be filed. The trial court also noted that at the hearing it again asked Anderson’s counsel whether the transcripts had been ordered, and that Anderson’s attorney argued that Anderson’s indigent status relieved her of the obligation to file the transcript. Additionally, the trial court noted that Anderson’s attorney had asserted that he had not received the bill of costs sent by the trial court clerk on August 21, 2012, and that those costs had not been paid.

Following the hearing, the trial court dismissed Anderson’s notice of appeal based on her unreasonable and inexcusable delay in filing the hearing transcripts. See OCGA §§ 5-6-41; 5-6-42; 5-6-48 (c). Further, as an additional basis for dismissing the appeal, the trial court found that Anderson’s failure to pay costs resulted in an unreasonable and inexcusable delay in transmitting the record to this Court. Id.

On May 5,2014, Anderson filed a notice of appeal from, inter alia, the trial court’s order dismissing her notice of appeal (“second notice of appeal”). Anderson again directed the trial court clerk to include the entire record on appeal, including the hearing transcripts. On July 2, 2014, the trial court issued a show cause hearing order to determine why Anderson’s second notice of appeal also should not be dismissed for failure to pay costs.

On July 7, 2014, Quality Foods moved to dismiss Anderson’s second notice of appeal and for attorney fees based on Anderson’s failure to pay costs and failure to serve Quality Foods with her second notice of appeal, which Quality Foods asserted was part of an on-going pattern by Anderson’s counsel to fail to serve it with Anderson’s court filings.

On July 14, 2014, Anderson filed her second motion for designation of indigency and for a free copy of the hearing transcripts; Anderson’s purported second affidavit of indigence was attached to her motion, but it was unsigned and unsworn. On July 16, 2014, the trial court issued an amended rule nisi, setting a show cause hearing on the dismissal of Anderson’s second notice of appeal and her second motion for designation of indigency.

On July 21, 2014, Anderson refiled her motion for indigency; although the affidavit of indigence attached to that motion was signed by Anderson and a Notary Public, the jurat was undated. Also on that date, Anderson filed a “response” to the trial court’s July 2 and July 14, 2014, show cause orders and Quality Foods’ motion to dismiss her second notice of appeal arguing, among other things, that neither she nor her attorney had ever received or rejected the statement of appeals costs sent by the clerk of the trial court, and thus any delay in transmitting the record to this Court was caused by the failure of the trial court clerk to ensure that Anderson or her attorney received the statement of costs.

On August 8, 2014, the trial court entered an order dismissing Anderson’s second notice of appeal on the basis that she failed to timely transmit the record to this Court as required by OCGA § 5-6-48 (c) and failed to timely file an affidavit of indigence. Anderson now appeals from that order.

1. Citing OCGA § 9-15-2 (a) (1), Anderson argues she did all the statute requires her to do in order to be designated indigent and relieved of paying the costs of her appeals, and that in the absence of a traverse by the defendant, the trial court was required to grant her motion for designation of indigency without any additional showing on her part. But Anderson’s argument ignores the full text of the statute.

We start with the relevant statutory provisions. Pursuant to OCGA § 9-15-2 (a) (1),

[w]hen any party, plaintiff or defendant, in any action or proceeding held in any court of this state is unable to pay any deposit, fee, or other cost which is normally required in the court, if the party shall subscribe an affidavit to the effect that because of his indigence he is unable to pay the costs, the party shall be relieved from paying the costs and his rights shall be the same as if he had paid the costs.

However, OCGA § 9-15-2 further provides in subsection (a) (2):

Any other party at interest or his agent or attorney may contest the truth of an affidavit of indigence by verifying affirmatively under oath that the same is untrue. The issue thereby formed shall be heard and determined by the court, under the rules of the court. The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final.

Further, contrary to Anderson’s argument on appeal, the statute specifically provides that even

[i]n the absence of a traverse affidavit contesting the truth of an affidavit of indigence, the court may inquire into the truth of the affidavit of indigence. After a hearing, the court may order the costs to be paid if it finds that the deposit, fee, or other costs can be paid and, if the costs are not paid within the time permitted in such order, may deny the relief sought.

OCGA § 9-15-2 (b).

As an initial matter we note that although Quality Foods did not file an affidavit under oath contesting the truth of Anderson’s affidavit of indigence, Quality Foods did oppose Anderson’s affidavit of indigence on other grounds. And in any event, under OCGA § 9-15-2 (b), the trial court had the authority to inquire into the truth of the affidavit even in the absence of a challenge from the opposing party. Boyd v. JohnGalt Holdings, LLC, 318 Ga. App. 866, 871 (736 SE2d 459) (2012). As required by that Code section, the trial court in this case, after giving proper notice, held a hearing to determine the truth of Anderson’s affidavit of indigence. Anderson did not attend the hearing and has not challenged the trial court’s finding that her absence was without legal reason or excuse. Thus, the trial court was not required to accept Anderson’s affidavit of indigence as true when she failed, without legal excuse or cause, to attend the hearing or to present evidence or testimony to allow the court to make a determination of her ability to pay. Accordingly, the trial court did not err by denying Anderson indigent status and refusing to relieve her of paying the costs of her first appeal. Cf. Gruner v. Thacker, 320 Ga. App. 146 (739 SE2d 440) (2013) (case remanded for further proceedings because trial court improperly denied pauper status without holding a hearing); JohnGalt Holdings, LLC, 318 Ga. App. at 870 (same).

Decided May 1, 2015 —

Reconsideration denied July 29,2015.

Michael B. King, for appellant.

Waldon Adelman Castilla Hiestand & Prout, Russell D. Waldon, John E. Alday, Stephen P. Morris, for appellee.

Likewise, Anderson’s second attempt to be declared indigent also failed because the jurat of the affidavit of indigence was undated and thus the affidavit was legally insufficient. Hurt v. Norwest Mtg., Inc., 260 Ga. App. 651, 654 (1) (a) (580 SE2d 580) (2003) (affidavit of indigence invalid when signature of the notary “is not dated so as to indicate the notary was present at the same time the affiant signed the document”); see also Haygood v. Head, 305 Ga. App. 375, 381 (4) (699 SE2d 588) (2010) (affidavit without valid jurat is insufficient); Mitchell v. Cancer Carepoint, Inc., 299 Ga. App. 881, 882 (1) (683 SE2d 923) (2009) (affidavit of indigence that is not notarized is invalid). Accordingly, this enumeration is without merit.

2. Anderson also argues that because her request to designate her indigent was wrongfully denied by the trial court, we must also reverse the dismissal of her first and second notices of appeal because the delay in transmitting the record to this Court was solely caused by her inability to pay. However, because we have affirmed the trial court’s denial of her motions for indigency, this enumeration also fails, and the trial court orders dismissing her appeals are affirmed.

Judgment affirmed.

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

       The order denying Anderson’s motion for reconsideration is not contained in the record on appeal, but Anderson indicated in her subsequent motion for designation of indigency that it was denied “on or about July 15, 2012.” Further, many of our facts are taken from the trial court’s orders, since the record on appeal is somewhat incomplete and there appears to be no dispute concerning the basic procedural history of this case.

       The trial court indicated it made this same inquiry at the hearing on Anderson’s motion for reconsideration.

       However, as found by the trial court, the statement of appeals costs was sent to Anderson’s counsel at his address of record via certified mail, return receipt requested, but the mailing was returned as “unclaimed” and “unahle to forward.”

       Anderson also filed a motion to recuse the trial court judge, and on July 24,2014, the trial court issued an order denying Anderson’s motion to recuse on the basis that the allegations set forth in her motion were untimely, legally insufficient, and did not warrant recusal. Anderson does not challenge that order on appeal.

       We note that Quality Foods moved to dismiss Anderson’s appeal in this Court on the grounds that she had failed to pay costs, provide a certificate of service with her brief, and repeatedly failed to serve pleadings on her opposing counsel. Although noting that we had previously reminded Anderson and her counsel of their obligation to serve filings pursuant to our Rule 6 and that we would be well within our discretion to dismiss Anderson’s appeal, we declined to do so. However, we did impose a $250 sanction against Anderson’s attorney for the failure to comply with our Rules.