text:
    A16A1513.
    CALLAWAY et al. v. GARNER et al.
    (796 SE2d 906)
   DILLARD, Presiding Judge.

The Estate of Cason J. Callaway, Jr. (the “Estate”), through its executor, Ken Callaway, appeals the trial court’s dismissal of its notice of appeal from the court’s entry of final judgment in favor of Larry Garner, Sr., and Larry Garner, Jr. (the “Garners”), in their civil action against the Estate, which sought specific performance of Cason Callaway’s agreement to purchase stock from the Garners. On appeal, the Estate argues that the trial court erred in (1) dismissing its appeal without making a finding that it caused an unreasonable and inexcusable delay in the docketing of the appeal, and (2) finding the Estate forfeited the supersedeas collateral that it posted during the litigation (i.e., the stock) because it was worthless. For the reasons set forth infra, we affirm.

In 2014, this Court affirmed the trial court’s order requiring the Estate to perform an agreement made by Cason Callaway prior to his death to purchase shares of Callaway Blue Springs Water Company from the Garners for $1,200,000 and awarding the Garners prejudgment interest and attorney fees (“Callaway I”). While that appeal was pending, the Estate posted certain supersedeas collateral, including the stock that was the subject of the lawsuit. Subsequently, the Supreme Court of Georgia reversed Callaway I, in part, only as to this Court’s approval of the prejudgment-interest award and remanded the case for the trial court to resolve certain questions involving that award (“Callaway II”). Upon remand, on October 1, 2015, the trial court issued a final judgment that, as authorized by Callaway I and Callaway II, the Garners were entitled to recover $1,200,000 from the Estate for the sale of the stock. In addition, the trial court found that, based on the evidence presented at a September 30,2015 hearing, the Estate forfeited the stock that it posted as collateral because it had become worthless.

On October 9,2015, the Estate filed a timely notice of appeal from the trial court’s final judgment, which noted, inter alia, that “[t]he clerk shall omit nothing from the record on appeal” and “[a] transcript of evidence [should] be filed for inclusion in the record on appeal.” Then, on November 4, 2015, the Estate filed a motion to reconstruct the record. And in that motion, the Estate acknowledged that no court reporter was present during the September 30, 2015 hearing but also alleged that its counsel had recorded the hearing with the permission of the court. Further, the Estate asserted that this recording had since been transcribed by a certified court reporter and that counsel for the Estate still possessed the original recording. Finally, the Estate contended that, upon the grant of its motion to reconstruct the record, it would “forward the original transcript and recording to the Clerk for inclusion in the record.”

On November 20, 2015, the Garners filed a motion to dismiss the Estate’s notice of appeal, arguing that, despite the Estate’s representation in its notice of appeal that it would file a transcript for inclusion in the record, it had failed to do so. Furthermore, as to the Estate’s request to reconstruct the record, the Garners noted that its counsel had yet to provide the court or anyone else with a copy of the recording of the hearing or any transcript of that recording. Additionally, the Garners claimed that the Estate’s counsel only recorded the second half of the hearing. Thus, the Garners maintained that because the Estate indicated in its notice of appeal that it would file a nonexistent transcript, the trial court was required to dismiss the appeal. Then, just over two-and-a-half months later (on February 10, 2016), the trial court denied the Estate’s motion to reconstruct the record and granted the Garners’ motion to dismiss the Estate’s appeal. This appeal by the Estate follows.

1. The Estate first argues the trial court erred in dismissing its appeal without making the necessary findings that it caused an unreasonable and inexcusable delay in the appellate process. We disagree.

OCGA § 5-6-48 (c) provides:

No appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court; but the trial court may, after notice and opportunity for hearing, [] order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party . . .

In applying this statutory framework, the determination of whether the delay in the filing of the transcript was unreasonable, inexcusable, and caused by the appellant is “a fact issue for the trial court and will not be disturbed on appeal absent an abuse of discretion.” With this deferential standard of review in mind, we turn now to the Estate’s first enumeration of error.

As to a trial court’s dismissal of an appeal, our Supreme Court has held that a delay in excess of 30 days in filing a transcript after a notice of appeal is filed is prima facie unreasonable and inexcusable, but this presumption is “subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.” And in evaluating the threshold question of whether the delay was unreasonable, we consider “both the length and effect of the delay.” This Court will also consider any delay in transmitting the appellate record unreasonable when it may affect an appeal by:

(a) directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or (b) causing the appeal to be stale, such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.

Indeed, we have repeatedly recognized that “justice delayed for even one day is justice denied to the litigant who was successful in the lower court and who is entitled to his judgment unless the case is properly reversed.”

On appeal, rather than arguing that its conduct did not constitute an unreasonable and inexcusable delay in filing a transcript of the September 30, 2015 hearing, the Estate argues that the trial court erred by dismissing the appeal without making certain “necessary findings” regarding the delay In relevant part, the Supreme Court of Georgia has emphasized that OCGA § 5-6-48 (c) “requires the trial court to determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable” before exercising its discretion in “deciding whether to dismiss the appeal.” And when there is no indication in the record that a trial court made such determinations, we must vacate the dismissal order and remand the case with direction that the requisite findings of fact be entered.

Here, to support its claim that the trial court erred by dismissing its appeal without making the requisite findings of fact, the Estate relies solely on cases in which the trial court essentially ruled on a motion to dismiss in a summary order without any findings of fact or further elaboration. But in this case, although the trial court’s order does not use the words “unreasonable” or “inexcusable,” the court made sufficient findings of fact to demonstrate that it considered the relevant factors delineated in OCGA § 5-6-48 (c). And Georgia courts have affirmed dismissal orders under such circumstances, even when the trial court did not use the specific terminology outlined in the statute. To do otherwise would be to elevate form over substance, and that is not something OCGA § 5-6-48 (c) requires.

Specifically, the trial court’s dismissal order first noted that the September 30, 2015 hearing was not taken down by a certified court reporter, but the Estate’s attorney recorded a portion of it with a smart phone. The court further found that, in its notice of appeal filed on October 9, 2015, the Estate indicated that “[a] transcript of evidence will be filed for inclusion in the record on appeal,” but as of February 10, 2016 (the date of the dismissal order), the parties had not agreed to reconstruct a transcript nor had the Estate provided the court or the Garners with a recording of the hearing or a complete certified transcript of the hearing. In light of the foregoing, the court found that it was authorized to dismiss the Estate’s appeal under Teston v. Mills, a case in which this Court set forth the factors to be considered under OCGA § 5-6-48 (c) and affirmed the trial court’s dismissal of an appeal when, as here, the delay was directly attributable to the appellant’s designation in his notice of appeal that a nonexistent transcript would be filed for inclusion in the record on appeal. We agree with the trial court that Teston is controlling in the case sub judice.

Decided February 8, 2017.

Ken Hodges Law, Kenneth B. Hodges III, Andre T. Tennille III, for appellants.

Waldrep Mullin & Callahan, C. Morris Mullin; Mateer & Har-bert, Chad K. Alvaro; Johnson Marlowe, Spence Johnson, Dustin R. Marlowe; Buchanan & Land, Benjamin A. Land; Pope McGlamry, Wade H. Tomlinson III, for appellees.

In sum, given the trial court’s factual findings regarding the Estate’s failure to file a nonexistent transcript, and the court’s express reliance on Teston, which detailed the required factual findings under OCGA § 5-6-48 (c) and was decided based on circumstances nearly identical to this case, the court provided sufficient findings of fact to show that it considered the factors set forth in that statute (i.e., the length of the delay, the reasons for the delay, whether the Estate caused the delay, and whether the delay was inexcusable), even though the court’s order did not expressly use the language delineated in OCGA § 5-6-48.

2. The Estate also argues that the trial court’s valuation of the supersedeas collateral in the underlying final judgment was erroneous. But regardless of our holding in Division 1 supra, any challenge to the trial court’s underlying judgment regarding the Garners’ specific-performance claim is not properly before this Court because that judgment is not the subject of this appeal.

For all of the foregoing reasons, we affirm the trial court’s dismissal of the Estate’s appeal from the court’s final judgment on the Garners’ claim for specific performance.

Judgment affirmed.

Reese and Bethel, JJ., concur.

        See Callaway v. Garner, 327 Ga. App. 67 (755 SE2d 526) (2014) (physical precedent only), affirmed in part and reversed in part by Estate of Callaway v. Garner, 297 Ga. 52 (772 SE2d 668) (2015).

        See Estate of Callaway, 297 Ga. at 54-55 (2). We note that although the Supreme Court found that the trial court erred in awarding prejudgment interest under OCGA § 13-6-13, it nevertheless remanded the case for the trial court to determine whether an award of prejudgment interest was authorized by OCGA § 7-4-15. See Estate of Callaway, 297 Ga. at 52-55 (1), (2). The Supreme Court affirmed this Court’s holdings as to the merits of the Garners’ underlying specific-performance claim and the award of attorney fees. See id.

       As an exhibit to its notice of appeal, the Estate attached a document entitled “Transcript of Tape-Recorded Hearing,” which appears to be an incomplete transcript of a hearing held in this case. There is, however, no indication of when the hearing occurred. The court reporter who created the transcript included this disclaimer: “The following transcript has been prepared by the court reporter from a tape) ]recording. The court reporter was not present during the above-referenced proceedings. The speakers are identified based upon representations made by others.” But regardless of the authenticity of this transcript, the Estate submits it for the first time on appeal, and we will not consider evidence that was not presented to the trial court. See Givens v. Ichauway, Inc., 268 Ga. 710, 712 (1) (493 SE2d 148) (1997) (“[A]ppellate courts will review only evidence presented to the trial court before its ruling on the motion. Additional evidence will not be admitted on appeal.” (punctuation omitted)); Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977) (same); RC Cola Bottling Co. v. Vann, 220 Ga. App. 479, 480(1) (469 SE2d 523) (1996) (same); see also Jones v. O’Day, 303 Ga. App. 159, 162-63 n.4 (692 SE2d 774) (2010) (holding that a deposition that was not presented to the trial court could not be considered on appeal); Ga. Farm Bureau Mut. Ins. Co. v. Shook, 215 Ga. App. 66, 67-68 (449 SE2d 658) (1994) (“It is true this [CJourt cannot consider evidence not presented to the trial court.”).

       In its order dismissing the Estate’s appeal, the trial court noted that neither party requested a hearing on the Garners’ motion to dismiss, and the Estate does not challenge the court’s failure to hold such a hearing. Moreover, although the Estate does not maintain that it was not given an opportunity to respond to the motion to dismiss, we reiterate that the motion was pending for over two-and-a-half months before the trial court issued its ruling, and so long as the party opposing the motion to dismiss has an opportunity to respond on the record, no hearing is required. See Mitchell v. 3280 Peachtree 1, LLC, 285 Ga. 576, 576 (1) (678 SE2d 880) (2009) (affirming the trial court’s grant of a motion to dismiss when it did not hold an oral hearing on the motion because the appellant was given “ample notice and opportunity to respond” to the motion such that his due process rights were not violated); Grant v. Kooby, 310 Ga. App. 483, 486 (713 SE2d 685) (2011) (holding that a hearing on a motion to dismiss an appeal is not required if the parties are given an opportunity to respond on the record); Lemmons v. Newton, 269 Ga. App. 880, 882 (605 SE2d 626) (2004) (holding that the trial court did not err by failing to hold an oral hearing on a motion to dismiss an appeal because the appellant was afforded a full opportunity to respond to the motion). Regardless, the Estate has abandoned any claims of error regarding the trial court’s decision not to hold a hearing because the issue is not addressed in the Estate’s appellate brief, much less supported by meaningful argument. See Payton v. Johnson, 228 Ga. 810, 812 (1) (188 SE2d 504) (1972) (deeming three enumerations of error abandoned when they were not supported in the appellant’s brief by citation to authority or by argument); Caring Hands, Inc. v. Dep’t of Human Res., 222 Ga. App. 608, 610 (2) (475 SE2d 660) (1996) (“The failure to support the enumerated errors by citation of authority or argument constitutes an abandonment of such enumerated errors.” (punctuation omitted)); Hartford Acc. & Indem. Co. v. Taylor, 144 Ga. App. 64, 66 (240 SE2d 575) (1977) (“The failure to support the enumerated error by citation of authority or argument in the brief leaves nothing for this [C]ourt to consider and constitutes an abandonment of the error enumerated in this appeal.”).

        HTTP Hypothermia Therapy v. Kimberly-Clark Corp., 330 Ga. App. 857, 858-59 (1) (768 SE2d 542) (2015) (punctuation omitted); accord Bush v. Reed, 311 Ga. App. 328, 331 (715 SE2d 747) (2011); see Propst v. Morgan, 288 Ga. 862, 863 (708 SE2d 291) (2011) (noting that a trial court’s ruling on whether a delay in filing transcript is inexcusable and caused by the appellant will be reviewed on appeal only for abuse of discretion); S & S Food Servs., Inc. v. Dep’t of Transp., 222 Ga. App. 579, 582 (3) (475 SE2d 197) (1996) (“In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, this [CJourt will not disturb the lower court’s finding absent an abuse of discretion.” (punctuation omitted)).

        HTTP Hypothermia Therapy, 330 Ga. App. at 859-60 (1) (punctuation omitted); accord Kelly v. Dawson Cty., 282 Ga. 189, 189 (646 SE2d 53) (2007); In the Interest of T. H., 311 Ga. App. 641, 643 (716 SE2d 724) (2011); Adams v. Hebert, 279 Ga. App. 158, 159 (630 SE2d 652) (2006).

        HTTP Hypothermia Therapy, 330 Ga. App. at 860 (1); accord Pistacchio v. Frasso, 314 Ga. App. 119, 121 (723 SE2d 322) (2012); Am. Nat. Prop. & Cas. Co. v. Potts, 243 Ga. App. 645, 646 (534 SE2d 123) (2000); see Propst, 288 Ga. at 863 (“OCGA § 5-6-48 (c) requires the trial court to determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable, and then to exercise discretion in deciding whether to dismiss the appeal.”); Sellers v. Nodvin, 262 Ga. 205, 206 (1) (b) (415 SE2d 908) (1992) (“The threshold question whether the delay was unreasonable refers principally to the length and effect of the delay.” (punctuation omitted)).

        HTTP Hypothermia Therapy, 330 Ga. App. at 860 (1) (punctuation omitted); accord Mercer v. Munn, 321 Ga. App. 723, 726 (1) (742 SE2d 747) (2013); Pistacchio, 314 Ga. App. at 121-22; Vaughn v. Faulkner, 288 Ga. App. 798, 798-99 (655 SE2d 686) (2007); Adams, 279 Ga. App. at 159.

        HTTP Hypothermia Therapy, 330 Ga. App. at 860 (1) (punctuation omitted); accord Ashley v. JP Morgan Chase Bank, N.A., 327 Ga. App. 232, 237 (1) (758 SE2d 135) (2014); Mercer, 321 Ga. App. at 727 (1); Bush, 311 Ga. App. at 332 (a); Morrell v. W. Servs., LLC, 291 Ga. App. 369, 374 (2) (662 SE2d 215) (2008); Adams, 279 Ga. App. at 159.

        Propst, 288 Ga. at 863; accord Grant, 310 Ga. App. at 485; see Baker v. S. Ry. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990) (“[T]he trial court has discretion to dismiss an appeal for failure to timely file a transcript only ifl) the delay in filing was unreasonable; 2) the failure to timely file was inexcusable in that it was caused by some act of the party responsible for filing the transcript.” (emphasis supplied)); Gruner v. Thacker, 320 Ga. App. 146, 148 (1) (739 SE2d 440) (2013) (“OCGA § 5-6-48 (c) requires the trial court to determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable, and then to exercise discretion in deciding whether to dismiss the appeal.” (punctuation omitted) (emphasis supplied)).

        See Grant, 310 Ga. App. at 485-86 (vacating the trial court’s order dismissing an appeal when there was nothing in the record to show that the trial court engaged in the analysis required by OCGA § 5-6-48 (c) and remanding the case with direction that findings of fact be issued); Rogers v. Norris, 262 Ga. App. 857, 857-58 (1) (586 SE2d 747) (2003) (“Failure to make [findings of fact] mandates that we vacate the order dismissing the appeal and remand the case with the direction that findings of fact be entered on these issues.”); Crenshaw v. Ga. Underwriting Ass’n, 202 Ga. App. 610, 611 (1) (414 SE2d 915) (1992) (reversing and remanding the denial of a motion to dismiss an appeal when the trial court failed to make findings of fact, and instead, ruled on the motion “without elaboration”).

        See Postell v. Alfa Ins. Corp., 327 Ga. App. 194, 196 (757 SE2d 661) (2014) (vacating a trial court’s order that “summarily dismissed the notice of appeal” and remanding for the trial court to make factual findings as to its basis for the dismissal); Rogers, 262 Ga. App. at 857 (1) (vacating a trial court’s dismissal of an appeal and remanding the case when “[t]he trial court simply granted the motion without elaboration and failed to make the necessary findings as to whether the delay was unreasonable, inexcusable, and caused by [the appellant]”); Wood v. Notte, 238 Ga. App. 748, 749 (1) (519 SE2d 923) (1999) (reversing the trial court’s dismissal order and remanding the case for the trial court to make factual findings when the order “merely granted the motion to dismiss” without making findings as to the reasonableness and excusability of the delay as well as on the issue of causation).

        See Mitchell, 285 Ga. at 577 (2) (holding that the trial court made sufficient findings of fact to support its dismissal of an appeal when the order set forth the circumstances surrounding the appealing party’s 16-month delay in paying court costs, and the appellee had moved to dismiss the appeal based on an inexcusable delay caused by the appellant’s failure to pay costs); Cooper v. State, 235 Ga. App. 66, 67 (2) (508 SE2d 447) (1998) (holding that “[ajlthough OCGA § 5-6-48 (c) sets forth the conditions upon which the trial court may dismiss an appeal for delay, it does not by its terms require the court to make a formal recitation of those conditions in its order,” and affirming a trial court’s dismissal order, which found that the delay was unreasonable but had no express finding that the delay was inexcusable (punctuation omitted)); A. Roberts Corp. v. Roberts, 207 Ga. App. 663, 664 (428 SE2d 671) (1993) (“Although the trial court did not use the specific terminology delineated in [OCGA § 5-6-48 (c)], the trial court’s order indicate[d] that the court considered those factors in concluding that the dismissal of the appellants’ appeal was proper.”).

       203 Ga. App. 20 (416 SE2d 133) (1992).

        See id. at 20. We note that Georgia courts have repeatedly affirmed dismissal orders that were issued due to the appellant’s designation in the notice of appeal that a nonexistent transcript would be included in the appellate record. See, e.g., HTTP Hypothermia Therapy, 330 Ga. App. at 861 (1) (affirming the trial court’s dismissal of an appeal when the appellant’s inadvertent reference to a nonexistent transcript in its notice of appeal resulted in a 15-month delay between when the notice of appeal was filed and when the case was dismissed and holding that the delay was unreasonable, inexcusable, and caused by the appellant); Pirkle v. Bell, 270 Ga. 438, 438 (510 SE2d 814) (1999) (affirming the trial court’s dismissal of an appeal when three-month delay was caused by appellant’s designation in the notice of appeal that a nonexistent transcript would be included in the record and on appellant’s failure to check on the status of the appeal); Lindstrom v. Forsyth Cty., 221 Ga. App. 581, 582 (472 SE2d 106) (1996) (affirming dismissal of an appeal when two-month delay was caused by a mistaken designation in the notice of appeal that a nonexistent transcript would be included in the record and appellant made no efforts to expedite the appeal); Devins v. Leafmore Forest Condo. Ass’n of Owners, 213 Ga. App. 823, 823 (446 SE2d 531) (1994) (affirming the trial court’s dismissal of an appeal when appellant caused a delay in the docketing of the appeal by mistakenly designating a nonexistent transcript as part of the record and by failing to take any steps to expedite the appeal); Johnston v. Ga. Pub. Serv. Comm’n, 209 Ga. App. 224, 225 (433 SE2d 65) (1993) (affirming dismissal of an appeal when the sole reason for the delay in transmitting the record to this Court was appellant’s inadvertent designation that a nonexistent transcript would be included in the record on appeal and the earliest inquiry about the status of the appeal was not made until “several months” after the notice of appeal was filed).

        See supra note 10 and accompanying text.

        See supra notes 13 and 15.


source: Caselaw Access Project

author: Rickman, Judge.

license: Public Domain

text:
    A16A1515.
    COWART v. GEORGIA DEPARTMENT OF HUMAN SERVICES.
    (796 SE2d 903)
   Rickman, Judge.

Barbara Cowart, as administratrix of the Estate of J. C., appeals the trial court’s order dismissing her claims against the Georgia Department of Human Services (DHS) in connection with the tragic death of one-year-old J. C. She contends that the trial court erred by ruling that her claims were barred by sovereign immunity For reasons that follow, we affirm in part and reverse in part.

“We review de novo a trial court’s grant of a motion to dismiss on sovereign immunity grounds, bearing in mind that the party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.” (Citation and punctuation omitted.) Pelham v. Bd. of Regents of Univ. System of Ga., 321 Ga. App. 791 (743 SE2d 469) (2013). “Because a motion to dismiss on sovereign immunity grounds is based upon the trial court’s lack of subject matter jurisdiction, the trial court is entitled to make factual findings necessary to resolve the jurisdictional issue.” (Citations omitted.) Id. at 791, n. 1. Here, the trial court did not make any factual findings, and we therefore view the factual allegations in the complaint as true to determine whether the complaint shows with certainty that Cowart would not be entitled to relief under any state of facts that could be proven in support of her claim. See James v. Ga. Dept. of Pub. Safety, 337 Ga. App. 864, 865 (1) (789 SE2d 236) (2016); McCoy v. Ga. Dept. of Admin. Svcs., 326 Ga. App. 853, n. 1 (755 SE2d 362) (2014).

In her initial complaint, Cowart alleged that in August 2013, J. C.’s uncle contacted a case manager with the Bartow County Department of Family and Children Services (DFCS) and informed her that J. C.’s mother was using methamphetamine and that J. C. was in imminent danger of harm. J. C.’s uncle also informed the case manager where J. C.’s mother couldbe found. Cowart alleged that the case manager took no action to address the report that J. C. was in danger, in violation of DFCS’s established policies and protocols, and asserted claims against DHS for negligence, wrongful death, and violation of the Georgia Open Records Act. In her initial complaint, Cowart also alleged that J. C.’s mother and her boyfriend, “while under the influence of. . . methamphetamine and other illegal drugs committed unspeakable and horrible acts of torture, barbarism, cruelty, violence, molestation, and savagery upon infant [J. C.],” and that “[a]fter four months of enduring the constant torture and as a direct result thereof, [J. C.] died.”

DHS moved to dismiss the complaint for lack of subject matter jurisdiction based on an exception to the State’s waiver of sovereign immunity for losses resulting from assault or battery (the “assault and battery” exception). In response, Cowart amended her complaint, deleting the allegations that J. C.’s mother and her boyfriend committed “acts of torture, barbarism, cruelty, violence, molestation, and savagery” upon J. C., resulting in her death, and replacing them with allegations that J. C.’s mother and her boyfriend were negligent in failing to provide care and support and timely medical treatment and that “[a]iter four months of enduring constant harm and neglect caused by the . . . negligent acts and omissions of [J. C.’s mother and her boyfriend], [J. C.] died.”

The trial court dismissed Cowart’s claims for damages resulting from a battery on J. C. under the assault and battery exception to the State’s waiver of sovereign immunity and dismissed Cowart’s claims for damages caused by negligence and neglect under the discretionary function exception. Cowart only appeals the trial court’s ruling on her claims for damages caused by negligence.

Under the Georgia Constitution, sovereign immunity extends to the State and all of its departments and agencies. Ga. Const. of 1983, Art. I, Sec. II, Par. IX. The General Assembly may waive the State’s sovereign immunity from suit by enacting a State Tort Claims Act. Id. The Georgia Tort Claims Act provides that, subject to certain exceptions and limitations, “[t]he state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances[.]” OCGA § 50-21-23 (a). One of the exceptions to the State’s waiver of sovereign immunity provides that the State shall have no liability for losses resulting from assault or battery OCGA § 50-21-24 (7). Under that exception, “if a plaintiff’s injury was caused by an assault and battery committed by a third party, the state is immune from suit even if the assault and battery was facilitated by or resulted from the prior negligent performance of a state officer or employee.” (Citation omitted.) Pelham, 321 Ga. App. at 796 (2). Cowart does not appeal the trial court’s ruling on the basis of immunity for losses resulting from assault and battery We therefore affirm the trial court’s ruling that OCGA § 50-21-24 (7) bars Cowart from recovering for losses resulting from assault and battery.

Cowart contends that the trial court erred by concluding that her claims are barred by the discretionary function exception to the State’s waiver of sovereign immunity, which provides that the State shall have no liability for losses resulting from “[t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” OCGA § 50-21-24 (2). A discretionary function or duty is defined as “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” OCGA § 50-21-22 (2).

[F]or the “discretionary function” exception to apply, it must be shown that a state officer or employee was afforded discretion with respect to the conduct that is alleged to amount to a tort, [and] that an exercise of the discretion afforded amounts to a policy judgment based upon a consideration of social, political, or economic factors.

(Citations and punctuation omitted.) Ga. Dept. of Human Svcs. v. Spruill, 294 Ga. 100, 106 (2) (751 SE2d 315) (2013).

We must first consider the extent to which DFCS policy afforded discretion to the case manager. Here, although the complaint alleges that DFCS policies and protocols required the case manager to conduct an investigation into the report that J. C. was in danger, the existing record lacks evidence that would allow us to determine if the case manager had the discretion to perform absolutely no investigation, as alleged in the complaint. Without such evidence, we cannot determine whether the discretionary function exception applies here. Accordingly, we conclude that the trial court erred in granting DHS’s motion to dismiss under OCGA § 50-21-24 (2) on the existing record. See Grant v. Ga. Forestry Comm., 338 Ga. App. 146, 156 (4) (789 SE2d 343) (2016).

Decided February 8, 2017.

Perrotta & Cahn, Anthony N. Perrotta, Robert W. Lamb, for appellant.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Robert L. Bunner, Senior Assistant Attorneys General, for appellee.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Self, J., concur.

       Cowart does not appeal the trial court’s dismissal of her claims against the Georgia Division of Family and Children Services and the Bartow County Department of Family and Children Services.

       The trial court also ruled that any procedural due process claim must fail, but Cowart never asserted such a claim.

       The parties dispute the effect of the allegations of the original complaint. We note that an amendment to the pleadings prevents the original admissions from serving as solemn admissions in judicio, but those admissions may still be used as evidence that the admitting party can explain and try to refute. Georgia-Pacific v. Fields, 293 Ga. 499, 502 (1) (748 SE2d 407) (2013). In addition, “an admission in judicio applies only to the admission of fact and does not apply where the admission is merely the opinion or conclusion of the pleader as to law or fact.” (Punctuation and footnote omitted.) Citrus Tower Boulevard Imaging Center v. Owens, 325 Ga. App. 1, 4 (1) (752 SE2d 74) (2013).


author: McFADDEN, Presiding Judge.

text:
    A16A1560.
    TRUONG v. THE STATE.
    (796 SE2d 912)
   McFADDEN, Presiding Judge.

After a jury trial, Anthony Truong was convicted of robbery, false imprisonment, battery, and theft by taking. Truong appeals, challenging the sufficiency of the evidence supporting the robbery and false imprisonment charges, the trial court’s refusal to excuse a prospective juror for cause, and the trial court’s jury charge on parties to a crime. But, there was sufficient evidence from which a rational trier of fact was authorized to find Truong guilty beyond a reasonable doubt of robbery and false imprisonment, the trial court did not abuse its discretion in refusing to excuse the juror for cause, and any presumed error in giving a jury instruction on parties to a crime was harmless. Therefore, we affirm.

1. Sufficiency of the evidence.

Truong claims that there was insufficient evidence to support his convictions for robbery and false imprisonment. The claim is without merit.

When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

Kilby v. State, 289 Ga. App. 457 (1) (657 SE2d 567) (2008) (citations omitted).

So viewed, the evidence shows that on March 2, 2014, Truong’s mother, Susan Stokes, invited the victim to her house. The victim drove his car to Stokes’ house, where he began drinking beer with Stokes. As they drank, the victim discovered that Stokes had slipped pills into his drinks. A short time later, Truong attacked the victim, punching him in the face and knocking him to the ground. As Truong pinned the victim to the ground, he took the victim’s keys, wallet, and phone from his pockets. Truong then forced the victim into a sleeping bag on the ground and ordered him not to leave or call the police, threatening further violence if the victim disobeyed. Truong left the house, while Stokes and another man stayed in the same room where the victim was in the sleeping bag on the floor. When Stokes and the man went to a different part of the house, the victim escaped. He discovered that his car was missing and later found that various items were missing from his house. The victim reported the incident to the police, who executed a search warrant at Stokes’ house, where they found the victim’s wallet, keys, and GPS device hidden in a hamper in Truong’s bedroom.

When viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find [Truong] guilty beyond a reasonable doubt of the crimes [of robbery and false imprisonment] for which he was found guilty. [Cits.]

Kennebrew v. State, 299 Ga. 864, 867 (1) (792 SE2d 695) (2016).

2. Refusal to excuse prospective juror.

Truong enumerates that the trial court erred in failing to excuse for cause a prospective juror who had made campaign contributions to the county sheriff. He argues that this case is similar to and controlled by Post v. State, 298 Ga. 241 (779 SE2d 624) (2015). However, Truong’s reliance on Post is misplaced, as that case did not involve the issue of excusing a juror for cause, but instead involved recusal of a judge. See id. at 242. The law governing the issue of excusing a juror for cause is well settled.

Whether to strike a juror for cause lies within the sound discretion of the trial court. For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. A prospective juror’s doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. Nor is excusal required when a potential juror expresses reservations about his or her ability to put aside personal experiences. A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.

Decided February 8, 2017.

Crawford & Boyle, Eric C. Crawford, for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

Brittian v. State, 299 Ga. 706, 708 (3) (791 SE2d 810) (2016) (citation and punctuation omitted).

In this case, there is no showing that the prospective juror held any opinion of Truong’s guilt or innocence, let alone an opinion that was so fixed or definite that he was unable to set it aside and decide the case based on the evidence and the court’s charge. On the contrary, when questioned by defense counsel during voir dire about the effect his relationship with the sheriff might have on his impartiality, the juror responded, “I don’t think it would have any effect whatsoever.” Because the juror’s “response to the [defense counsel’s] questions demonstrated that [he] could set aside [any] opinion and could decide the case on the evidence, the trial court did not abuse [her] discretion in denying the motion to excuse for cause.” Rucker v. State, 270 Ga. 431, 433 (2) (510 SE2d 816) (1999) (citation omitted).

3. Jury charge on parties to a crime.

Truong complains that the trial court erred in giving a jury charge on parties to a crime because there was no evidence that anyone else had anything to do with the crimes alleged. But “[e]ven if [we presume that] the charge here was error, it would be harmless in light of the strong evidence against [Truong].” Rocha v. State, 234 Ga. App. 48, 53 (4) (506 SE2d 192) (1998) (citation and punctuation omitted). See also Lewis v. State, 195 Ga. App. 59, 60 (2) (392 SE2d 563) (1990) (error in giving parties to a crime charge was harmless due to strong evidence of defendant’s guilt).

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.


text:
    A16A1616.
    TEMPLE v. HILLEGASS et al.
    (796 SE2d 899)
   McFADDEN, Presiding Judge.

The trial court’s order dismissing the appeal in this case failed to include the findings of fact required for this court to conduct a review under the abuse of discretion standard. So, the order dismissing the appeal is vacated and the case is remanded with direction that the trial court make the requisite findings.

On February 12, 2015, Tandra Temple filed the underlying pro se complaint on behalf of her minor son against various defendants for breach of fiduciary duty, breach of contract, fraud, and other claims. On that same date, she filed an affidavit of poverty with the complaint, and the trial court granted her request to proceed in forma pauperis. On April 23, 2015, George Hillegass and other defendants moved to dismiss the complaint on grounds that Temple lacked standing to bring the action, that she had failed to file a required expert’s affidavit with the complaint, and that the statute of limitation had expired. On June 16, 2015, the trial court granted the motion to dismiss the complaint.

Temple filed a timely notice of appeal on July 16, 2015. On August 4, 2015, the clerk of the superior court sent Temple a bill of costs for the appeal in the amount of $284.50, and Temple received the bill on August 6. On September 14, 2015, Temple filed an affidavit and motion to proceed in forma pauperis, requesting that the court relieve her from paying all costs associated with the appeal because of her indigence. Approximately two weeks later, on September 29, 2015, Hillegass and other defendants moved to dismiss the appeal, arguing that there had been an unreasonable delay in the transmission of the record to the appellate court based on Temple’s failure to pay costs or file an affidavit of indigence as required by OCGA § 5-6-48 (c). On November 16, 2015, the trial court granted Temple’s motion to proceed in forma pauperis and ordered that she “be permitted to waive fees and costs of appeal.” Almost three months later, on February 11, 2016, the trial court entered an order granting the defendants’ motion to dismiss the appeal, providing only: “After full review of the entire record before the Court, Defendants[’] . . . Motion to Dismiss Plaintiff’s Appeal is GRANTED. IT IS HEREBY ORDERED that Defendants [’] Motion to Dismiss Plaintiff ⅛ Appeal is GRANTED.” Temple appeals from that dismissal order.

The dismissal order lacks the required findings.

[I]n order for a trial court to dismiss an appeal for unreasonable delay in the filing of the transcript or in the transmission of the record, OCGA § 5-6-48 (c) requires the trial court to determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable, and then to exercise discretion in deciding whether to dismiss the appeal. Although we review the trial court’s decision for an abuse of discretion, the trial court must make findings on these issues before we may determine whether its discretion was abused. Failure to make these findings mandates that we vacate the order dismissing the appeal and remand the case with the direction that findings of fact be entered on these issues.

Decided February 8, 2017.

Andy Clark Law, M. Andrew Clark, for appellant.

Cruser & Mitchell, Ñola D. Jackson, Robert N. Friedman, for appellees.

Postell v. Alfa Ins. Corp., 327 Ga. App. 194, 195 (757 SE2d 661) (2014) (citations and punctuation omitted). See also Gruner v. Thacker, 320 Ga. App. 146, 148-149 (1) (739 SE2d 440) (2013) (trial court erred by not making the requisite findings of fact, and without such findings we were unable to engage in meaningful appellate review of the decision to dismiss).

Because the trial court summarily dismissed Temple’s appeal without making any of the necessary findings of fact which would enable this court to determine whether there was an abuse of discretion, see Rogers v. Norris, 262 Ga. App. 857 (1) (586 SE2d 747) (2003), we vacate the dismissal order and remand the case with direction that the trial court make those findings. Postell, 327 Ga. App. at 196.

Judgment vacated and case remanded with direction.

Miller, P J., and McMillian, J., concur.


author: Per curiam.

text:
    A17A0126.
    HOLLINS v. THE STATE.
    (796 SE2d 901)
   Per curiam.

Following a jury trial, Cameron Hollins was convicted of aggravated assault and possession of a firearm during the commission of a felony. After the denial of his motion for new trial, Hollins filed this appeal, in which he asserts that the trial court erred when it instructed the jury that it could convict him of aggravated assault in a manner not alleged in the indictment. Finding no error, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation and punctuation omitted.) Crankshaw v. State, 336 Ga. App. 700 (1) (786 SE2d 245) (2016). So viewed, the record shows that Hollins and his co-defendant, Adam Pfeifer, called a taxicab to drive them from the Sugarloaf Mills shopping center to an apartment complex near Hollins’s residence, where Pfeifer also stayed. Hollins sat behind the taxicab driver, and Pfeifer sat behind the passenger seat. The driver was subsequently found dead in the parking lot of the apartment complex, having been killed by a single gunshot behind his right ear. The driver had cash in both his wallet and his pocket, none of which was taken, and his phone and other personal belongings remained in the taxicab.

Police discovered a latent fingerprint on the taxicab that matched that of Pfeifer, who had an outstanding warrant and was quickly arrested. At the time of his arrest, Pfeifer was carrying a backpack containing the gun that was later determined to have fired the bullet that killed the driver. The backpack also contained papers with Hollins’s name on them, and further investigation revealed Hollins’s fingerprints on the rear driver door handle of the taxicab.

Hollins was subsequently arrested and was jointly charged with Pfeifer for the offenses of murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony. Pfeifer, however, ultimately agreed to accept a plea offer and to testify against Hollins. During the ensuing trial, Pfeifer testified that he and Hollins communicated during the cab ride through a cell phone application called Kik, and that Hollins stated his intent to rob and kill the taxicab driver. Pfeifer maintained that he exited the taxicab upon arriving at the apartment complex, and that he then heard Hollins fire the fatal shot.

The jury convicted Hollins of aggravated assault and possession of a firearm during the commission of a felony but acquitted him of murder. The jury deadlocked on the charge of felony murder, and the State agreed to accept the partial verdict. This appeal follows the trial court’s denial of Hollins’s motion for new trial.

In his sole enumeration of error, Hollins contends the trial court erred by charging the jury that it could convict him of aggravated assault in a manner not alleged in the indictment. The indictment alleged that Hollins and Pfeifer assaulted the driver “with a firearm, a deadly weapon, by shooting him. . . See OCGA § 16-5-21 (b) (2) (“A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon . . . In addition to reading the indictment to the jury, the trial court instructed it as follows:

A person commits the offense of aggravated assault when that person assaults another person with a deadly weapon. To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant attempted to cause a violent injury to the alleged victim or intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury The State must also prove, as a material element of aggravated assault as alleged in this case, that the assault was made with a deadly weapon.

See OCGA § 16-5-20 (a) (“A person commits the offense of simple assault when he or she either: (1) [ajttempts to commit a violent injury to the person of another; or (2) [cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury”).

Relying on the well-established law that “it is error to charge the jury that a crime may be committed by either of two methods, when the indictment charges it was committed by one specific method,” (Citation and punctuation omitted.) Childs v. State, 257 Ga. 243, 253 (17) (357 SE2d 48) (1987), Hollins asserts that the definition of simple assault should have been limited to that of an “attempt[ ] to cause a violent injury” to the victim. He contends that after being given the complete definition of simple assault, the jury may have convicted him of aggravated assault solely for placing the victim in reasonable apprehension of receiving a violent injury, when the indictment demanded a finding that he assaulted the victim by shooting him.

Because Hollins did not object to the charge at trial, we analyze this case under a plain error standard of review, in accordance with State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011).

Under that analysis, we must determine whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings. If all three of these questions are answered in the affirmative, this Court has the discretion to reverse if the error seriously affects the fairness, integrity or public reputation of the proceedings below. As noted by our Supreme Court, satisfying all four prongs of this standard is difficult, as it should be.

(Citations and punctuation omitted.) Bledson v. State, 337 Ga. App. 444, 447-448 (2) (787 SE2d 809) (2016).

As has been previously explained by our Supreme Court, the trial court did not err in charging the jury on the complete definition of simple assault in this aggravated assault case:

The indictment did not and need not . . . specify the manner in which the defendant committed the simple assault, when that is a lesser included offense within the greater offense of aggravated assault. Instead, an indictment for aggravated assault should, as it did in this case, allege the aggravating aspect of the simple assault. This indictment was sufficient to put [the defendant] on notice that he could be convicted for aggravated assault if he committed a simple assault in either manner contained in the simple assault statute, so long as the State proved that he did so by use of a gun. The two charged methods of committing simple assault, as an element of aggravated assault, did not provide an improper basis for the jury to convict [the defendant] of aggravated assault. The trial court did not charge a separate, unalleged method of committing aggravated assault, but simply definedboth methods of committing simple assault, a lesser included offense.

(Punctuation and footnotes omitted.) Simpson v. State, 277 Ga. 356, 358 (3) (589 SE2d 90) (2003) (holding, in a case involving a defendant charged with aggravated assault “by shooting [the victim] with a gun,” that the trial court did not err in charging the jury that it could convict the defendant of aggravated assault “if, by his actions, he either shot [the victim] or placed [the victim] in reasonable apprehension of being shot”); see Bates v. State, 275 Ga. 862, 864-865 (3) (572 SE2d 550) (2002) (“[A] court’s instruction on aggravated assault necessarily includes the law on simple assault, and the statement in the indictment that [the defendant] committed the aggravated assault ‘by shooting’ [the victim], together with the evidence presented, raised the possibility of assault in the manner in which the court instructed the jury.”) (citation omitted); see also Marsh v. State, 254 Ga. App. 342, 343-344 (2) (a) (562 SE2d 269) (2002). Moreover, the jurors were read the indictment and instructed that they were authorized to convict Hollins only if they determined that he committed the offense of aggravated assault as alleged in the indictment.

Decided February 8, 2017.

Lynn M. Kleinrock, for appellant.

Daniel J. Porter, District Attorney, Courtney R. Spicer, Assistant District Attorney, for appellee.

It follows that the trial court did not err in giving the complete definition of simple assault, and Hollins has failed to show he is entitled to a new trial on this basis.

Judgment affirmed. Division Per Curiam.

All Judges concur.

       Pfeifer was also charged with possession of a firearm by a convicted felon during the commission of a felony.


author: McMlLLIAN, Judge.

text:
    A16A1595, A17A0168.
    A16A1596.
    BROCK et al. v. RES-GA SCL, LLC; and vice versa. BARBEE v. RES-GA SCL, LLC.
    (796 SE2d 914)
   McMlLLIAN, Judge.

The dispositive issue in these related appeals is whether the trial court exceeded its authority by setting aside and reentering orders dismissing plaintiff RES-GA SCL, LLC’s (“RES-GA”) fraudulent transfer claims against defendants Shelley A. Brock (“S. Brock”), The 2007 Brock Family Trust, AOBAtlanta, LLC, and Zeb Barbee (hereinafter collectively “defendants”), which started the clock running anew and provided RES-GA with another opportunity to timely appeal the dismissal orders. As more fully set forth below, we now reverse in Case Nos. A16A1595 and A16A1596 and dismiss in Case No. A17A0168.

The following facts are pertinent to our analysis. In July 2014, RES-GA obtained a judgment in excess of $18,000,000 against, inter alios, Thomas Brock (“T. Brock”) under the terms of a personal guaranty of a commercial loan that had been assigned to RES-GA. In February 2015, RES-GA filed a complaint against T. Brock and others, including the defendants named herein, seeking to set aside certain transactions as fraudulent transfers under the Georgia Uniform Fraudulent Transfers Act (“UFTA”), OCGA § 18-2-70. The fraudulent transfer defendants filed motions to dismiss, asserting among other things that RES-GA lacked standing to challenge those allegedly fraudulent transfers that were made before it was assigned an interest in the loan or debt, and on the basis that RES-GA had failed to obtain the necessary certificate of authority to transact business in Georgia. See OCGA §§ 14-11-702 and 14-11-711.

On July 16, 2015, the trial court entered an order dismissing the fraudulent claims for transfers that occurred before RES-GA was assigned an interest in the debt on October 18, 2010. The trial court also found that RES-GA was barred from seeking to set aside a post-assignment transfer that occurred on April 6, 2011, because it had not yet obtained a certificate of authority to transact business in Georgia, but deferred dismissing any such claim for 30 days to give RES-GA an opportunity to provide the court with documentation that it was certified to transact business in Georgia. RES-GA sought a certificate of immediate review from the July 16 order, but the trial court denied RES-GA’s request on July 27, 2015. However, RES-GA also filed a notice of direct appeal from the trial court’s July 16 order on July 24, 2015.

RES-GA did not provide the necessary proof of its authority to transact business in Georgia, and on August 31, 2015 and September 1, 2015, the trial court entered a series of orders dismissing with prejudice the remaining fraudulent transfer claims, which constituted a final disposition in the case. Significantly, RES-GA did not file a notice of appeal from any of the final dismissal orders, and on October 5, 2015, defendants, inter alios, filed a motion to dismiss the July 24 notice of appeal on the basis that the order being appealed was not final and the trial court had denied RES-GA’s request for a certificate of immediate review. On December 23,2015, the trial court dismissed the July 24, 2015 notice of appeal as premature. However, at the same time, the trial court also sua sponte entered a separate order setting aside the final dismissal orders and reentering those orders as of that date.

On January 20, 2016, defendants S. Brock, The 2007 Brock Family Trust, and AOBAtlanta, LLC filed a notice and corrected notice of appeal from the portion of the December 23, 2015 order setting aside and reentering the final dismissal orders, and that appeal was docketed in this Court as Case No. A16A1595; appellee Zeb Barbee filed a separate notice of appeal from the December 23, 2015 order, and that appeal has been docketed in this Court as Case No. A16A1596. On December 28, 2015, RES-GA filed a notice of appeal challenging the substantive rulings of the trial court on the issues of the assignability of the fraudulent transfer claims and the need for a certificate of authority as a prerequisite to pursuing its fraudulent transfer claim, and that appeal has been docketed in this Court as Case No. A17A0168.

Case Nos. A16A1595 and A16A1596

1. Defendants argue that the trial court lacked the authority sua sponte to set aside and reenter the final dismissal orders after the expiration of the term of court in which they were entered. On the other hand, RES-GA asserts that the filing of the July 24, 2015 notice of appeal acted as a supersedeas, and the dismissal orders entered while that notice was pending were without legal effect, a nullity and void, and thus could be set aside by the trial court at any time.

Generally speaking, in civil actions a trial court, upon the filing of a notice of appeal, loses jurisdiction to modify or enforce a judgment which is the subject of the appeal during the period of supersedeas, and only those matters which are independent of and distinct from the judgment on appeal remain within the jurisdiction of the trial court. OCGA § 5-6-46; Davis v. Harpagon Co., 281 Ga. 250, 253 (8) (637 SE2d 1) (2006). Thus, an order about the same subject matter after the trial court has lost jurisdiction to the appellate court is void and without effect and can be set aside at any time. See OCGA § 9-12-16 (“The judgment of a court having no jurisdiction of the person or the subject matter or which is void for any other cause is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.”); see also James v. Intown Ventures, LLC, 290 Ga. 813, 816 (2) n. 5 (725 SE2d 213) (2012) (“[U]nder Georgia law, a judgment alleged to be void for lack of personal or subject matter jurisdiction may be attacked in any court, by any person, at any time. OCGA § 9-11-60 (a) and (f).”).

However, as defendants contend, the final dismissal orders in this case are not void. As our Supreme Court recently explained, a notice of appeal does not act as a supersedeas when a party attempts to appeal an interlocutory order but fails to follow the requirements for obtaining interlocutory review set out in OCGA § 5-6-34 (b), which includes obtaining a certificate of immediate review from the trial court and an order from the appellate court granting the appeal. Islamkhan v. Khan, 299 Ga. 548, 550-51 (2) (787 SE2d 731) (2016). And, as the Court in Islamkhan went on to explain, because a notice of appeal filed from an interlocutory order without first complying with the requirements for obtaining interlocutory review is without legal effect, no action need be taken to prevent supersedeas from attaching, suchas dismissing the notice of appeal, and the filing of the notice does not divest the trial court of jurisdiction, even to modify or enforce the order that is the subject of the ineffective appeal. Id. at 551-52 (2) & n. 7. Here, there is no question that the July 16, 2015 order was interlocutory and the attempted faulty appeal from that order was thus ineffective to convey jurisdiction to this Court. Accordingly, the trial court’s orders entered on August 31, 2015 and September 1, 2015, were not void and did exactly what they purported to do, which was act as final orders dismissing all of RES-GA’s remaining claims. E.g., Levingston v. Crable, 203 Ga. App. 16, 18 (416 SE2d 131) (1992). (“A judgment is final when it disposes of the entire controversy, leaving nothing for the trial court to do in the case.”).

The question then is whether the trial court had the authority to set aside and reissue these valid orders more than two terms after they were entered. “[T]he general rule [is] that a ‘court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless [a] proceeding for that purpose was begun during the term.’ [Young Constr. v. Old Hickory House #3, 210 Ga. App. 559, 561-62 (2) (b) (436 SE2d 581) (1993).]” Rudd v. Poden, 279 Ga. App. 141, 144-45 (3) (630 SE2d 648) (2006). Here, the final dismissal orders were entered in the July term of court, and were not set aside until two terms later, in the November term of court. See OCGA § 15-6-3 (3) (Fulton County Superior Court has six terms, beginning the first Monday in January, March, May, July, September, and November). Accordingly, the trial court had the authority to vacate the final dismissal orders only if a proceeding seeking to set aside the orders was instituted during the term in which they were entered. RES-GA argues that its response to the appellants’ motion to dismiss the appeal should be considered such a proceeding because in that response RES-GA contended that if the appeal was not valid, the orders should be reentered. But RES-GA at all times maintained that the orders were void, that the trial court was divested of jurisdiction to enter the orders even if RES-GA’s attempt to appeal was ineffective, and has never contended that the orders were valid but should be set aside for some other reason. Nor has RES-GA ever filed a motion to set aside, vacate, or reenter the orders, and RES-GA’s response to the motion to dismiss appeal did not constitute a proceeding to set aside the valid dismissal orders. Indeed, the trial court’s December 23, 2015 order setting aside those orders recites that RES-GA had not made a formal motion to set aside, and that the court was acting sua sponte.

Decided February 9, 2017.

Schreeder, Wheeler & Flint, John A. Christy, Andrew J. Lavoie; Weener & Nathan, Philip H. Weener; Andersen, Tate & Carr, R. Matthew Reeves, Graham K. Brantley; Steven C. Rosen, for Brock et al.

John K. Saunders, for Barbee.

Because the trial court had no authority to set aside and reenter the August 31, 2015 and September 1, 2015 dismissal orders outside the term in which they were entered, the subsequent December 23, 2015 reentered orders are null and void, and the August 31, 2015 and September 1, 2015 final dismissal orders must be reinstated. Tanaka v. Pecqueur, 268 Ga. App. 380, 381-82 (1) (601 SE2d 830) (2004); see also The Levin Co. v. Walker, 289 Ga. App. 299 (656 SE2d 588) (2008).

Case No. A17A0168

2. RES-GA did not attempt to appeal the August 31, 2015 and September 1, 2015 final dismissal orders, and any appeal from those orders is now time barred. See OCGA § 5-6-38 (a) (“A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of....”). And although RES-GA did file a notice of appeal from the December 23, 2015 reentered dismissal orders, those orders were void, and any appeal from that order was ineffective. See Bryan v. Brown Childs Realty Co., Inc., 236 Ga. App. 739, 742 (2) (513 SE2d 271) (1999). Thus, we are without jurisdiction to entertain the appeal in Case No. A17A0168, and it is accordingly dismissed.

Judgments reversed in Case Nos. A16A1595 and A16A1596. Appeal dismissed in Case No. Al 7A0168.

Miller, P. J., and McFadden, P. J., concur.

Schulten, Ward, Turner & Weiss, Kevin L. Ward, Andrea L. Pawlak, for RES-GA SCL, LLC.

       Other defendants were also named in the original fraudulent transfer complaint, but the parties listed above are those named in the notices of appeal filed in Case Nos. A16A1595 and A16A1596.

       A more complete version of the circumstances surrounding the loan is set out in RES-GA SCL, LLC v. Stonecrest Land, LLC, 333 Ga. App. 289 (776 SE2d 489) (2015), in which we affirmed the judgment against T. Brock and the borrower.

       The defendants in the fraudulent transfer case, includingthosenotpartiesonappeal, will be collectively referred to as “fraudulent transfer defendants.”

       We will refer to the operative provisions of the UFTA as they existed at the time the complaint was filed, while noting that the UFTA was amended effective July 1, 2015 andisnow called the Uniform Voidable Transactions Act (“UVTA”). See Ga. L. 2015, p. 996, § 4A-1.

       In Georgia, fraud claims generally are not assignable, and this Court has held that an assignee of a debt is precluded from pursuing a fraudulent transfer claim under the pre-2015 version of the UFTA. See RES-GA Hightower, LLC v. Golshani, 334 Ga. App. 176, 180 (1) (a) (778 SE2d 805) (2015). However, as further noted in Golshani, under the 2015 amendments, assignees and successors to debt may pursue fraudulent transfer claims under the amended UFTA, now referred to as the UVTA. Id. at 180-81 (1) (b).

       These orders will be collectively referred to as the “final dismissal orders.”

       RES-GA filed its notice of appeal to the Supreme Court of Georgia, but that Court transferred the appeal to us; that appeal has been docketed to the December 2017 term of court.

       “Defendants” as used here refers only to those fraudulent transfer defendants who have filed notices of appeal from the trial court’s order.


text:
    A14A1587.
    SCAPA DRYER FABRICS, INC. v. KNIGHT et al.
    (796 SE2d 918)
    Decided February 10, 2017.

      Hawkins Parnell Thackston & Young, H. Lane Young, M. Elizabeth O’Neill, S. Christopher Collier; Duane Morris, William D. Bar-wick, for appellant.

      Buck Law Firm, Robert C. Buck, for appellees.
   McFADDEN, Presiding Judge.

In Scapa Dryer Fabrics v. Knight, 332 Ga. App. 82 (770 SE2d 334) (2015), this court affirmed a final judgment entered after a jury trial, finding, among other things, that the trial court had not erred in admitting certain expert testimony. In Scapa Dryer Fabrics v. Knight, 299 Ga. 286 (788 SE2d 421) (2016), the Supreme Court of Georgia reversed Division 2 of our decision, holding that, regardless of its scientific validity, the expert testimony did not “fit” the legal standard for causation and so had been erroneously admitted.

The judgment of the Supreme Court is adopted in place of Division 2 of the opinion of this court. The remaining portions of our opinion “were neither addressed nor considered by the Supreme Court” and “are consistent with [that] Court’s ruling,” so “they become binding upon the return of the remittitur.” Shadix v. Carroll County, 274 Ga. 560, 563-564 (1) (554 SE2d 465) (2001).

The parties have filed supplemental briefs. But the issues raised in those briefs should be considered in the first instance by the trial court.

The judgment of the trial court is reversed.

Judgment reversed.

Doyle, C. J., Barnes, P. J., Andrews, Ray, Branch, and Self, JJ., concur.


author: Branch, Judge.

text:
    A16A2156.
    EPSTINER v. SPEARS.
    (796 SE2d 919)
   Branch, Judge.

In this child custody case, Rebecca Boehmer Epstiner appeals from an order of the Cherokee County Superior Court granting Tyler Dean Spears’s motion to modify the order previously entered by the court as to the custody of the parties’ minor child. Epstiner argues that although the original custody order did not accurately reflect the ruling of the trial court, counsel for Spears approved that order. She contends that because Spears bears some responsibility for the errors contained in the original order, OCGA § 9-11-60 did not authorize the trial court to set aside or amend that order. Epstiner further asserts that the trial court erred because its current order fails to meet the requirements for a custody modification order set forth in OCGA § 19-9-1 (b). We find no merit in Epstiner’s claim that the trial court erred in modifying the custody provisions of its previous order of judgment, and we therefore affirm the trial court’s grant of Spears’s motion. We agree with Epstiner, however, that the current order fails to comply with the applicable statutory requirements. We therefore vacate that order and remand for entry of a new order that complies with OCGA § 19-9-1 (b).

The relevant facts are undisputed and show that Epstiner and Spears are the parents of a minor child, L. B. S., born on December 10, 2010. In August 2013, Spears filed a Petition for Legitimation, Custody and Child Support as to L. B. S. A bench trial on that petition was held on April 22,2015, and at the conclusion of that trial the court issued an oral ruling as to Spears’s custody and visitation rights. In its oral ruling, the trial court granted Spears supervised visitation for a period of time and stated that beginning October 30, 2015, Spears was granted unsupervised visitation every other weekend, with the visitation to begin on Fridays at 6:00 p.m. and end on Sundays at 6:00 p.m. The court directed counsel for Epstiner to draft an order reflecting the court’s ruling. Both parties thereafter submitted a proposed order, and the trial court copied language from each of those orders to create the final order of judgment, which was entered on April 29, 2015. It is undisputed, however, that the judgment did not accurately reflect the court’s oral ruling. Specifically, the order entered used language taken from the proposed order drafted by Epstiner’s counsel which provided that Spears’s weekend visitations would not begin until Saturday mornings, and which also imposed certain conditions on Spears’s visitation that were not set forth in the trial court’s oral ruling. Under the terms of the written order, if Spears was more than 15 minutes late in picking up his son for visitation, he forfeited the entire visitation period. Additionally, the order barred Spears from designating anyone other than himself from picking up the child if Spears was unable to pick up L. B. S. at the designated time.

Spears’s prior counsel consented to the original order as to form, but there is no evidence showing that Spears saw or approved that order before it was entered. When Spears pointed out the errors in the order to his previous counsel, that attorney declined to attempt a remedy. Spears thereafter retained new counsel, and on February 2, 2016, he filed a Motion to Partially Set Aside Judgment or in the Alternative to Amend the Final Order on Petition for Legitimation, Custody, and Child Support. By way of that motion, Spears sought to have the original order vacated and a new order entered that accurately reflected the trial court’s oral ruling. Alternatively, Spears sought an amendment of the trial court’s order to reflect the terms of visitation as set forth by the court in its oral ruling and to omit the conditions relating to the forfeiture of visitation and the restrictions on Spears’s right to designate individuals who could pick up and drop off the child.

At the hearing on Spears’s motion, the trial court read into the record its oral ruling as to visitation, as it appeared in the transcript of April 22, 2015. The court then held that the judgment entered did not reflect the court’s ruling and that this mistake had occurred “through no fault of” Spears. Specifically, the court noted that the original order of judgment

tracked the [c] ourt’s language exactly as [the court] dictated, and then it went off track and did not follow the [c] ourt’s [oral] order as to overnight visitation . . . and deleted about 20 lines of the [c]ourt’s [oral] order, which addressed the weekend visitation from Friday night to Sunday evening. Once that was done . . . the order [again] tracked and the parenting plan tracked exactly what the [c]ourt dictated from the bench ... on the 22nd day of April 2015. This [c]ourt cannot find that [the erroneous order] was a mistake or any fault of [Spears]. And short of saying that it was a deliberate move [by the mother’s trial counsel] to delete what this [c] ourt said, the [c] ourt’s going to rely on the law and statutes to correct this oversight and mistake of the order.

The court thereafter entered a written order in which it relied on OCGA § 9-11-60 (d) (2) to grant Spears’s motion. The current order purported to set aside the original judgment “as it relates to the visitation schedule between the Parties regarding the minor child beginning October 31, 2015.” That order granted Spears “the visitation schedule rights that were originally granted [at the] April 22, 2015 [hearing,] according to the transcribed proceedings” and also gave Spears “overnight weekend visitation period from Friday night to Sunday evening.” Additionally, the current order provided that Spears “shall not be deemed to forfeit the entire visitation period where he cannot personally pick up [the] child within [a] [f]ifteen (15) minute grace period,” and that Spears “may designate parties that are able to pick up the minor child in his absence.” Epstiner now appeals from the current order.

1. Epstiner argues that the trial court was without authority to set aside its original judgment pursuant to OCGA § 9-11-60 (d) (2) because, given that his attorney approved the erroneous order, Spears was not without fault with respect to that order. Regardless of whether Spears was entitled to have the judgment set aside, however, we find that given the order entered by the trial court, OCGA § 9-11-60 does not apply to this case.

Where a movant meets the requirements of OCGA § 9-11-60 (d), a trial court may set aside an entire judgment, thereby returning the case to the posture it occupied prior to the entry of judgment. See Porter-Martin v. Martin, 280 Ga. 150, 151 (625 SE2d 743) (2006); Osborne Bonding & Surety Co. v. State of Ga., 228 Ga. App. 383, 384 (2) (b) (491 SE2d 837) (1997). OCGA § 9-11-60 (d), however, does not authorize a court to revise or amend part of a judgment while leaving the judgment intact. Porter-Martin, 280 Ga. at 151. Here, although the trial court’s current order purports to set aside its original order of judgment, the current order did not have that effect. Instead, the current order operated only to amend that portion of the original judgment that addressed Spears’s visitation rights, leaving much of the judgment intact. And under Georgia law, we construe orders “according to their substance and function and not merely by nomenclature.” State v. Chapman, 322 Ga. App. 82, 83 (744 SE2d 77) (2013) (citation and punctuation omitted). See also Forest City Gun Club u. Chatham County, 280 Ga. App. 219, 220 (633 SE2d 623) (2006). Accordingly, we treat the current order as amending the visitation provisions of the original order of judgment, rather than setting aside that judgment in its entirety. See Chapman, 322 Ga. App. at 83 (trial court’s declaration of a mistrial following the entry of the verdict “[notwithstanding nomenclature ... was in substance the sua sponte grant of a new trial, and we will therefore treat it as such”). The initial questions presented by this appeal, therefore, are whether the trial court was authorized to modify its original judgment and, if so, whether it properly exercised that authority We answer both of these questions in the affirmative.

The relevant Code section applicable to child custody actions provides, in part:

In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. . . .

OCGA § 19-9-3 (b).

“A trial court’s decision regarding a modification of custody will be upheld on appeal in the absence of a clear abuse of discretion, and where there is any evidence to support the trial court’s decision,” we can find no abuse of discretion. McFarlane v. McFarlane, 298 Ga. 361 (1) (782 SE2d 29) (2016) (citation omitted). Here, the evidence showing that the original order of judgment did not accurately reflect the trial court’s ruling was sufficient to support the trial court’s decision to modify that judgment. Accordingly, we affirm the trial court’s grant of Spears’s motion to modify the original order of judgment entered on his Petition for Legitimation, Custody, and Child Support. Id. (finding that some evidence, including the wife’s testimony detailing the care she provided for the children, “was sufficient to support the trial court’s [denial of husband’s petition] to modify custody”). See also Moore v. Moore-McKinney, 297 Ga. App. 703, 708 (2) (b) (678 SE2d 152) (2009) (trial court did not abuse its discretion in modifying visitation provisions of a custody order, as the court’s decision was supported by some evidence).

2. Epstiner also asserts that the trial court erred when it entered a modification order that merely referenced the trial court’s oral ruling and failed to set forth or incorporate a parenting plan, as required by OCGA § 19-9-1 (a). We agree, and we therefore vacate the trial court’s order and remand the case for entry of an order that meets the applicable statutory requirements.

OCGA § 19-9-1 (a) provides, in relevant part:

. . . The final order in any legal action involving the custody of a child, including modification actions, shall incorporate a permanent parenting plan . . . provided, however, that unless otherwise ordered by the court, a separate court order exclusively devoted to a parenting plan shall not be required.

Given that the trial court’s order neither sets forth all of the elements of a parenting plan required by OCGA § 19-9-1 (b) nor incorporates a parenting plan set forth in a separate document, “we are constrained to remand the case with instructions that the trial court incorporate a parenting plan into its final order consistent with the [statutory] requirements.” Moore, 297 Ga. App. at 711 (3). See also McFarlane, 298 Ga. at 362 (2) (“[b]ecause the trial court failed to enter a permanent parenting plan when it entered the modification order, we remand this case for compliance with the [relevant statutory] requirements”).

Decided February 10, 2017.

Ball Family Law, Patricia B. Ball, for appellant.

Odis W. Williams II, for appellee.

For the reasons set forth above, we affirm the trial court’s grant of Spears’s motion to modify the court’s original order entered on his Petition for Legitimation, Custody, and Child Support. We vacate the current order, however, and remand the case for entry of an order that complies with the requirements of OCGA § 19-9-1 (b).

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

Ellington, P. J., and Mercier, J., concur.

       A transcript of the April 2015 bench trial is not included in the current record. Portions of that transcript, however, were read into the record at the April 2016 hearing in this case.

       The specific details of the visitation schedule were set forth in a parenting plan, which was attached to and incorporated by reference into the order of judgment. The appellate record, however, contains no copy of that parenting plan.

       Under that statutory provision, a motion to set aside a judgment may be based upon “[f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant.” OCGA § 9-11-60 (d) (2).

       Citing Black v. Ferlingere, 333 Ga. App. 789 (777 SE2d 268) (2015), Epstiner argues that the trial court abused its discretion in relying on the transcript of the April 2015 hearing to grant Spears’s motion. Like this case, Black involved a motion to modify child custody. The father appealed the final judgment, arguing that the trial court erred when it entered a written order which differed in some respects from the oral statements the court made at the hearing on the modification petition. We affirmed the judgment, finding that it was supported by the evidence and that a “trial court’s oral statements on the record [are] not binding.” Id. at 791 (1) (punctuation omitted). We further explained that a “trial court’s oral pronouncement is not a judgment until it is put in writing and entered as the judgment. Although [such] pronouncements on the record may provide insight on the intent of [the court’s] subsequent written judgment, discrepancies between the two... must be resolved in favor of the written judgment.” Id. at 790-791 (1) (punctuation omitted). The fact that a trial court is not bound by its oral pronouncements, however, does not preclude that court from modifying an order where, as here, it finds that the judgment entered does not accurately reflect the court’s ruling.

       OCGA § 19-9-1 (b) outlines the items that a parenting plan must contain and requires that such a plan include, inter alia, “[w]here and when a child will be in each parent’s physical care, designating where the child will spend each day of the year”; “[h]ow holidays, birthdays, vacations, school breaks and other special occasions will be spent with each parent including the time of day that each event will begin and end”; and “[transportation arrangements including how the child will be exchanged between the parents, the location of the exchange, how the transportation costs will be paid, and any other matter relating to the child spending time with each parent[.]” OCGA § 19-9-1 (b) (2) (A), (B), (C).

       As noted above, although the trial court adopted a parenting plan at the time it entered the original order of judgment, a copy of that plan does not appear in the current record. If the trial court did incorporate a parenting plan into its original order of judgment, then on remand it may satisfy the requirements of OCGA § 19-9-1 (b) by entering an order that: (i) sets forth the specific modifications the court is making to the parenting plan previously adopted and incorporated into the court’s original order; and (ii) explicitly states that all of the terms and conditions of the original parenting plan not modified by the court’s new order are to remain in full force and effect. See Williams v. Williams, 295 Ga. 113, 115 (2) (757 SE2d 859) (2014).