author: McFadden, Judge. DILLARD, Judge,

text:
    A15A1684.
    McCARNEY v. PA LEX GLEN, LLC.
    (784 SE2d 438)
   McFadden, Judge.

Kevin McCarney filed this action for personal injury, among other claims, alleging that his landlord, the defendant PA Lex Glen, LLC, failed to keep his apartment in good repair and that the mold in his apartment caused his sinus condition to worsen. The trial court granted summary judgment to PA Lex Glen.

On appeal, McCarney argues that the trial court erred in granting PA Lex Glen summary judgment on his negligence claim because the testimony of his medical expert was sufficient to create a question of fact as to causation. We agree and therefore reverse the grant of summary judgment on McCarney’s personal injury claim. But we conclude that McCarney has abandoned his other arguments and therefore affirm the grant of summary judgment on his other claims.

1. Facts.

When reviewing the grant of the defendant’s motion for summary judgment, “[w]e view the evidence in the light most favorable to the plaintiff and give [him] the benefit of all reasonable doubts and inferences.” Phillips v. King, 214 Ga. App. 712 (448 SE2d 780) (1994) (citation omitted). Viewed in this light, the record shows that McCarney lived at the Nevadan Apartments from August 2012 until September 2013. In late August or early September 2013, McCarney spoke with the tenants who lived in the unit above him who claimed that they believed they had mold in their apartment. Later that day, McCarney inspected the ventilation shaft in his apartment and saw what he described as a “black substance.” McCarney’s roommate also discovered that the air conditioning system was leaking in his closet, and the wall of the closet was covered in a black substance, about a foot high and a foot wide, about six inches off the ground. McCarney’s apartment also experienced leaks in the bathroom ceiling, leaks in the kitchen sink, issues with the dishwasher not draining, and problems with the air conditioning not cooling.

On September 3, McCarney e-mailed the Nevadan a notice concerning the condition of his apartment, demanding that management take immediate action to remove the mold. The Nevadan property manager observed the ventilation shaft and did not see any mold. But she hired a mold inspection company to inspect the ductwork, and approved a work order for the duct’s replacement. McCarney, on his own accord, hired a separate company to perform a mold analysis. On September 25, 2013, McCarney notified the Nevadan that he was cancelling the lease due to the mold contamination in the apartment.

Earlier, during his residency at the Nevadan, McCarney had started receiving treatment for sinus problems from Dr. Raymond Louis Schettino, an ENT specialist. On June 17, 2013, Schettino performed sinus surgery on McCarney.

McCarney filed suit against PA Lex Glen, the owner of the Nevadan, alleging nuisance, maintenance of a continued nuisance, damages to real and personal property, negligent and intentional infliction of emotional distress, defective construction, breach of contract, breach of covenant for quiet enjoyment, and personal injury. Both McCarney and PA Lex Glen moved for summary judgment, and the trial court granted summary judgment to PA Lex Glen on all of McCarney’s claims.

2. Personal injury.

The trial court granted summary judgment on McCarney’s personal injury claim because it found no genuine issue of material fact as to causation. McCarney argues this was error because expert testimony created a fact question on that issue.

The diagnosis and potential continuance of a disease or other medical condition are medical questions to be established by physicians as expert witnesses and not by lay persons. Thus, we have required expert medical testimony, based at least on reasonable probability, to establish a causal link between exposure to a substance and a medical condition.

Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 160 (3) (b) (658 SE2d 909) (2008) (citations and punctuation omitted). In toxic tort cases, proof of causation generally requires reliable expert testimony which is based, at the least, on the determination that there was reasonable probability that the negligence caused the injury. Fouch v. Bicknell Supply Co., 326 Ga. App. 863, 869 (756 SE2d 682) (2014). The testimony must show a probable cause, as distinguished from a mere possible cause. Id. As detailed below, Schettino’s testimony met this standard and was sufficient to withstand summary judgment on McCarney’s personal injury claim.

In his deposition, Schettino testified that he removed mold from McCarney’s nose through surgery. He also testified that when McCarney’s symptoms did not improve after surgery, he recommended that McCarney move out of his apartment. While he could not state with a reasonable degree of medical certainty that the source of the mold he removed from McCarney’s nose was the same mold at the Nevadan, he did testify that McCarney’s continued sinus problems after surgery showed a high likelihood that the mold in the Nevadan contributed to his condition. Schettino testified:

Q. And can you say within a reasonable degree of medical probability that you feel the environment contributed to these symptoms? And the environment, we’re referring to the apartment he lived in.
A. Whether or not that caused it, I cannot say that it caused the original problem, but what I can say is from my clinical experience having taken care of so many of these patients, it definitely contributed to his prolonged care and some of his problems.
Q. Could you say within a reasonable degree of medical probability that it aggravated his condition?
A. Contributed in my mind would be considered aggravated; otherwise I wouldn’t recommend people to be removed from the environment. I don’t make that recommendation lightly.

(Emphasis supplied.) That the conditions of the mold aggravated McCarney’s sinuses is not stated in terms of mere possibility; viewing the evidence in the light most favorable to McCarney, Schettino testified that to a reasonable degree of medical certainty the mold in McCarney’s apartment worsened his medical condition. Schettino testified that the conditions of McCarney’s apartment “definitely contributed” to McCarney’s condition. This testimony provides the probability testimony regarding causation needed to withstand a motion for summary judgment. See Rodrigues v. Georgia-Pacific Corp., 290 Ga. App. 442, 445 (661 SE2d 141) (2008) (compare Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 710 (2) (505 SE2d 232) (1998) (expert medical testimony that the alleged negligence “may have contributed” to the patient’s injury and death was legally insufficient to establish causation)).

Moreover, even if the medical testimony had been stated only in terms of a “possible” cause, it would be sufficient because it is supplemented by probative nonexpert testimony on causation. See Estate of Patterson, 233 Ga. App. at 708 (2).

There are a number of cases which, while apparently admitting that medical evidence showing only a possibility of causal relation between an accident or injury and subsequent death or physical or mental impairment is not, by itself, sufficient to establish such relation, uphold the view that such evidence, in conjunction with other evidence, non-expert in nature, indicating that such a relation exists, although likewise not sufficient by itself to establish the relation, or in conjunction with admitted or obvious facts and circumstances of the case showing that death or physical disability would naturally and probably result from the injury, is sufficient to establish the causal relation.

Id. at 708 (2).

There was evidence of significant mold in the apartment. The owner of the mold company hired by McCarney testified that in his view, “the spore counts should have been under 40,000 colony forming units in total” and that the colony-forming units per gram of carpet dust in McCarney’s carpet was nearly 4 million units. McCarney’s roommate also testified that he had fallen ill while living in the Nevadan. “Similarly, [McCarney’s] testimony of his apparent good health and the onset of [his sinus] symptoms closely following his exposure to [mold] could suffice to fill any gaps left by the physician’s testimony[.]” Rodrigues, 290 Ga. App. at 446.

Given the foregoing, we conclude that the trial court erred in granting summary judgment on McCarney’s personal injury claim.

3. Remaining claims.

McCarney has abandoned any challenge to the trial court’s grant of summary judgment on his claims other than personal injury by failing to include in his appellate brief argument and citations to the record in support of reversal. See Court of Appeals Rule 25 (c) (2). And while McCarney argues that he was entitled to summary judgment on his negligence claim, he did not enumerate as error the trial court’s denial of summary judgment to him. “An appealing party may not use [his] brief to expand [his] enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors.” Johnson v. Bank of America, 333 Ga. App. 539, 543 (3) (773 SE2d 810) (2015) (citation and punctuation omitted).

Decided March 17, 2016.

The Hart Law Firm, Scott A. I. Hart, for appellant.

Hawkins Parnell Thackston & Young, M. Elizabeth O’Neill, for appellee.

Judgment affirmed in part and reversed in part.

Rickman, J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As a result, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A15A1746.
    LEADERSHIP PREPARATORY ACADEMY v. BUTLER et al.
    (784 SE2d 109)
   McFADDEN, Judge.

In this appeal from a superior court order affirming an award of unemployment benefits to a former employee, the employer contends that the superior court erred in issuing its ruling without a complete record of the administrative proceedings, in failing to find evidentiary errors during the administrative proceedings, and in granting the employee’s motion for attorney fees without proper notice of the motion. However, the superior court did have the complete record of the administrative proceedings; the employer has made no showing that the issue of evidentiary errors was preserved for appellate review; and, in the absence of a transcript of the hearing before the superior court, we must presume from the court’s final order that any objection to notice of the motion for attorney fees was waived. Accordingly, we affirm.

The record shows that Amanda Stinson was employed by Leadership Preparatory Academy from 2010 to 2014, when her employment was terminated. Stinson applied for unemployment benefits, which were initially denied by a Georgia Department of Labor claims examiner’s determination on the basis that Stinson had been fired for failing to perform her job duties satisfactorily. Stinson appealed, and after an administrative hearing, the hearing officer reversed the claims examiner’s determination and awarded unemployment benefits to Stinson. Leadership appealed to the department’s board of review, which adopted the findings of the hearing officer and upheld the decision to award benefits on the ground that Stinson had not intentionally failed or consciously neglected to perform her job duties. See OCGA § 34-8-194 (2) (B) (i), (ii) (individual shall not be disqualified for benefits if she made a good faith effort to perform job duties but was simply unable to do so or if she did not intentionally fail or consciously neglect to perform job duties).

Leadership then filed a petition for judicial review by the superior court. The court notified the parties of a hearing scheduled for November 12, 2014. Leadership moved for a continuance, which the court granted, notifying the parties that the hearing was rescheduled for January 12, 2015. On December 15, 2014, Stinson filed a motion for attorney fees under OCGA § 9-15-14. The hearing was held as scheduled on January 12, with both Leadership and Stinson appearing and represented by counsel at the hearing. On January 20, 2015,' the superior court entered its final order affirming the decision of the board and awarding attorney fees to Stinson under OCGA § 9-15-14 (a), (b).

Leadership filed an application for discretionary appeal, which this court granted. Thereafter, Leadership filed a timely notice of appeal from the superior court’s final order.

1. The administrative record.

Leadership claims that the superior court erred in issuing its decision based on a record of the administrative proceedings that was incomplete because it was missing certain documents. However, as the transcript of the administrative hearing shows and as Leadership admits in its brief, none of the purportedly missing documents identified by Leadership was admitted into evidence or considered by the hearing officer or the board of review in reaching their decisions. On the contrary, the hearing officer expressly excluded those documents from evidence. Furthermore, the record before us plainly shows that the department properly filed a certified record of the administrative proceedings with the superior court, including a transcript of the evidence taken during the administrative hearing, which the court reviewed before entering its final order. See OCGA § 34-8-223 (b) (department “shall certify and file with the superior court all documents and papers and a transcript of all testimony taken in the matter, together with the board of review’s findings of fact and decision therein”). Accordingly, this claim of error is without merit and provides no basis for reversal.

2. Evidentiary rulings.

Leadership contends that the superior court erred in upholding certain evidentiary rulings by the hearing officer, including the exclusion of the documents mentioned above and the admission of two documents introduced by Stinson. However, there is nothing in the record to show that these evidentiary issues were raised by Leadership and ruled on by the superior court.

In its brief, Leadership, without any citation to the record, claims that it raised these issues at the January 12, 2015 hearing before the superior court. There is no transcript to support Leadership’s claim because, as Leadership acknowledges in its brief, the January 12 hearing before the superior court was not transcribed. Consequently, Leadership’s representation that it raised these issues is of no consequence because “[w]e cannot consider factual representations in [its] brief which do not appear on record.” Brown v. Fokes Properties 2002, 283 Ga. 231, 232 (1) (657 SE2d 820) (2008) (citation and punctuation omitted).

Moreover, contrary to Leadership’s claim, the superior court’s final order does not indicate that these specific evidentiary issues were raised at the hearing, nor does it include any such evidentiary rulings. Rather, the final order explained that Leadership’s petition for judicial review was “merely a generic four page document that asserts the general grounds for appeal: that the decision was not supported by the evidence, that it [was] contrary to the law, was an abuse of discretion and was simply unfair.” The final order further explained that Leadership never submitted any brief or memorandum of law in support of its petition, that Leadership never made an argument about any “specific credible legal error made by the Administrative Law Judge,” and that Leadership’s counsel “just argued generally that the decision was unfair and should be reversed.”

“In accordance with the presumption of the regularity of court proceedings, we must assume in the absence of a transcript that there was sufficient competent evidence to support the trial court’s findings.” Reed v. Reed, 295 Ga. 574, 578 (2) (761 SE2d 326) (2014) (citation and punctuation omitted). Accordingly, we must presume that the evidentiary issues now raised on appeal were not raised and ruled on in the superior court, and thus they present nothing for us to review. “The burden is upon [the appellant] to ensure that [its] enumerations are supported by the record. Because [Leadership has] not fulfilled [this] duty ... we treat [this] enumeration [of error] as abandoned.” Threatt v. Rogers, 269 Ga. App. 402, 404 (1) (604 SE2d 269) (2004) (citation and punctuation omitted).

3. Attorney fees.

Leadership argues that it did not receive proper notice of the motion for attorney fees because it was not served on the attorney who filed the motion for a continuance of the superior court hearing. See Williams v. Cooper, 280 Ga. 145, 146 (1) (625 SE2d 754) (2006) (“One against whom an award of attorney fees is sought is entitled to an evidentiary hearing upon due notice permitting him an opportunity to confront and challenge the value and the need for the legal services claimed.”) (citations and punctuation omitted). Although it does appear that the Leadership attorney who filed the motion for a continuance was not served, the certificate of service attached to Stinson’s motion for attorney fees shows that the motion was served on another of Leadership’s attorneys — the attorney who had represented Leadership during the administrative proceedings and who had filed the petition for judicial review for Leadership. Leadership has contested this certificate of service with an affidavit of that attorney stating that she did not receive the notice.

Decided March 17, 2016.

McGuireWoods, Robert L. Fortson, Katherine F. Kendricks, for appellant.

Amanda Stinson, pro se.

Nevertheless, we need not address this factual dispute. Once again, in the absence of a transcript of the hearing held before the superior court, we must presume the regularity of the court proceedings. Reed, supra. Here, the trial court’s final order states that at the hearing Stinson presented evidence supporting her motion for attorney fees and that counsel for Leadership raised no objection. Under these circumstances, we must presume that Leadership waived any defects in service by appearing at and participating in the hearing held on the motion for attorney fees. See Brown, supra (appearance in action amounts to waiver of defects in process served).

Judgment affirmed.

Dillard and Peterson, JJ., concur.


author: PHIPPS, Presiding Judge.

text:
    A15A2205.
    ONI v. ONI.
    (784 SE2d 112)
   PHIPPS, Presiding Judge.

Adedamola Olagoke Oni (“Dr. Oni”) is the adoptive father of twins born to Cassondra Oni (“Ms. Oni”). In the first appearance of this case before this court, Oni v. Oni (Oni I), Dr. Oni contended that the trial court erred by granting Ms. Oni’s motion to set aside the adoption. We agreed with Dr. Oni, reversed the judgment, and remanded the case for proceedings not inconsistent with Oni I. On remand, the trial court granted Ms. Oni’s amended motion to set aside the adoption. Dr. Oni now appeals for a second time. For reasons that follow, we again reverse the trial court’s judgment and remand with direction.

After meeting in 2009, Dr. Oni and Ms. Oni began a relationship. They discussed the possibility that Dr. Oni would adopt the twins, who were not his biological children. In April 2010, Ms. Oni and her then three-year-old twins moved into Dr. Oni’s home. One month prior to that, in March 2010, Ms. Oni and the twins’ natural father had surrendered their parental rights to facilitate the twins’ placement for adoption. Notably, the surrender documents executed by Ms. Oni stated, inter alia, that she agreed that Dr. Oni “may initiate legal proceedings for the legal adoption of the children without further notice to me. I do, furthermore, expressly waive any other notice or service in any of the legal proceedings for the adoption of the children.”

A final decree of adoption was granted to Dr. Oni on August 24, 2010. On July 1,2011, Ms. Oni moved the trial court to set it aside. She claimed that the adoption had been procured through fraud and duress, alleging that Dr. Oni had told her the adoption would be “open” and that she would continue to live with him and the twins until she and Dr. Oni married at some later date. In addition, she alleged that Dr. Oni had taken steps to prevent her from discovering that the adoption had been finalized and that she had not learned about it until May 2011 when she attended a child support hearing against the twins’ biological father.

Dr. Oni moved to dismiss Ms. Oni’s motion to set aside the adoption decree, asserting that her challenge thereto was statutorily time-barred. The trial court, however, denied Dr. Oni’s motion to dismiss; then granted Ms. Oni’s motion to set aside the adoption, and further awarded her temporary custody of the children. When Dr. Oni appealed in Oni I, we reversed the trial court’s rulings.

Oni I first determined that the adoption decree had been entered pursuant to OCGA § 19-8-18 (b). Next, Orailrecited, “OCGA § 19-8-18 (e) provides that ‘[a] decree of adoption issued pursuant to subsection (b) of this Code section shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree.’ ” Having calculated that Ms. Oni’s challenge had been filed approximately ten months after entry of the adoption decree, Oni I turned to Ms. Oni’s argument that the statutory six-month period in which to challenge an adoption had been tolled by Dr. Oni’s (alleged) fraud in concealing the adoption decree from her. Oni I determined that “the language of the statute is unequivocal” and that “the language of OCGA § 19-8-18 (e) brooks no exception.” Accordingly, Oni I concluded that Ms. Oni’s motion to set aside the adoption was time-barred.

Oni I went on to state that it was “makfing] no determination as to whether other procedural avenues remain[ed] open to Ms. Oni under which she could seek custody, given the trial court’s grant of temporary custody to her.” Oni I then reversed the judgment, and remanded the “case to the trial court for proceedings not inconsistent with [that] decision, necessarily leaving to the trial court’s determination whether there are appropriate proceedings available to facilitate a transition of the children from Ms. Oni’s care to Dr. Oni’s care.” Ms. Oni’s petition to the Supreme Court of Georgia for a writ of certiorari was denied.

After return of the remittitur to the trial court, Dr. Oni filed motions seeking custody of the children. But Ms. Oni objected, positing that Oni I suggested that other procedural avenues remained open to her under which she could seek custody. Furthermore, Ms. Oni asserted that her motion to set aside the adoption remained pending before the trial court. She filed an “amended motion to set aside judgment [the adoption decree],” wherein she claimed anew that “the many deficiencies in the adoption petition” rendered the decree of adoption “void ad [sic] initio and, hence, [it] did not have the force of law.”

Dr. Oni countered that, in light of Oni I, Ms. Oni’s amended motion to set aside was barred. After conducting a hearing, the court ruled against Dr. Oni, and agreed with Ms. Oni that Dr. Oni’s petition for adoption had been “so fatally flawed that granting the Final Judgment and Decree of Adoption based on that petition must be declared void ab initio.” The trial court explained in its order:

The overarching principle of all adoptions is the consideration of the best interests of the children. Although the initial trial court recited the conclusion that the requested adoption would be in the children’s best interests, the failure of [Dr.] Oni to present to the trial court any independent evidence or information about how the children came to be in his care or any investigation and report required by OCGA § 19-8-16 (a) or any criminal history records search as required by OCGA § 19-8-16 (d), left the trial court with no factual basis for reaching such a conclusion. Had the trial court been appropriately informed that [Dr.] Oni was a 60 year old man adopting 3 year old twins, that the children’s mother lived with him and was unaware of the adoption proceedings, that his medical license had been suspended in Tennessee, that he was discharged as a First Offender, that he had substantial physical limitations, and that he was divorced by Final Judgment and Decree setting out substantial issues of domestic violence and abuse, it is unlikely that the trial court would have determined that the adoption was in the children’s best interests.

Finally, the trial court ruled, “[Ms. Oni’s] and the biological father’s Surrender of Parental Rights is hereby declared to be void ab initio and they are each restored to their position as legal mother and father of the above-referenced children.”

1. Dr. Oni maintains that, in light of Oni I, the trial court erred by granting Ms. Oni’s amended motion to set aside the adoption decree. For reasons that follow, we agree that the trial court had no authority to do so.

In Oni I, we expressly determined that the adoption decree was entered pursuant to OCGA § 19-8-18 (b). “Right or wrong, that decision was a final determination of the validity of the adoption decree, and . . . conclusive of that question as between [Dr. Oni] and [Ms. Oni.]” Moreover, as Oni I expressly determined, Ms. Oni’s (initial) judicial challenge was time-barred by OCGA § 19-8-18 (e), which provides that “[a] decree of adoption issued pursuant to subsection (b) of this Code section shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree.” A fortiori, Ms. Oni’s amended motion to set aside the adoption — likewise, a judicial challenge thereto — was time-barred, and the trial court erred in rejecting Dr. Oni’s argument in that regard. Given the circumstances of this case, Shepherd v. Shepherd is instructive:

Where the trial court, after hearing a motion to set aside a prior order in a pending case vacates the judgment complained of, and on appeal the trial court’s decision is reversed without direction, judgment of the appellate court is final. Upon the remittitur from the appellate court being filed in the trial court, the issue is res judicata, and the lower court has no authority to allow the movant to amend his motion. Nor can it hear further evidence or consider any other matter that would otherwise affect the finality of the judgment of [the appellate] court. The only action which that court ha[s] authority or power to take [is] to make the judgment of [the appellate] court the judgment of the trial court and to enter an order overruling the motion to vacate.

Decided March 17, 2016.

David A. Webster; Faulhaber Family Law, Tamar O. Faulhaber, for appellant.

Hester Outman, James B. Outman; Jean M. Kutner; Claiborne Fox & Bradley, Lila N. Bradley, Lynn H. Goldman, for appellee.

Oni I was not precisely “reversed without direction.” But the directive Oni I gave the trial court — specifically, “leaving to the trial court’s determination whether there are appropriate proceedings available to facilitate a transition of the children from Ms. Oni’s care to Dr. Oni’s care” — did not render inapplicable Shepherd’s instructions. Accordingly, we reverse the grant of Ms. Oni’s amended motion to set aside the adoption decree, and remand with direction to the trial court that, upon receipt of the remittitur, judgment shall be entered in accord with Oni I’s conclusion that because Ms. Oni moved to set aside the adoption decree approximately ten months after entry of that decree, her judicial challenge was time-barred by OCGA § 19-8-18 (e).

2. In light of Division 1, we need not reach Dr. Oni’s other claims of error.

Judgment reversed and case remanded with direction.

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

       “The parties are not married. Ms. Oni, previously Cassondra Tucker, took her name by petitioning for a name change.” Oni v. Oni, 323 Ga. App. 467, n. 1 (746 SE2d 641) (2013) (physical precedent only).

       Supra.

       Id. at 469 (1).

       See id. at 470 (1).

       Id. at 467.

       Id.

       Id.

       Id.

       Id. (punctuation omitted).

       Id. at 468. The adoption decree was later amended to provide for a name change for the children. Id. at 468, n. 2.

       Id. at 469.

       Id. at 468.

       Id.

       Id. at 467.

       Id. at 469.

       Id. at 467.

       Id. at 469 (1).

       Id., quoting OCGA § 19-8-18 (e).

       Id. at 469 (1).

       Id. at 469-470 (1).

       Id. at 469 (1).

       Id. at 470 (1).

       Id. at 469 (1).

       Id. at 470 (1).

       Id.

        Oni v. Oni, Case No. S13C1837, 2014 Ga. LEXIS 46 (January 6, 2014).

       In so ruling, the trial court changed the children’s names back to the names given them at birth.

        Oni I, supra at 469 (1). Accord Bates v. Bates, 317 Ga. App. 339, 342 (730 SE2d 482) (2012) (“[T]he application of the time bar set out in OCGA § 19-8-18 (e) presupposes that the adoption was one authorized by, and entered in accordance with, OCGA § 19-8-18 (b).”); Williams v. Williams, 312 Ga. App. 47 (717 SE2d 553) (2011) (“The adoption in this case was issued pursuant to [OCGA § 19-8-18 (b)], because it involved the surrender or termination of a biological parent’s rights.”) (citation omitted).

        Bates, supra.

        Oni I, supra (punctuation omitted); see Williams, supra (finding that the trial court erred in granting biological mother’s motion to set aside adoption, where the biological mother challenged the adoption decree more than six months after its entry).

       243 Ga. 253 (253 SE2d 696) (1979).

       Id. at 254 (citations omitted).

        Oni I, supra at 470 (1).

       Id.; see Williams, supra at 48 (“Because OCGA § 19-8-18 (e) precluded [the biological mother] from challenging the adoption decree, the trial court should have dismissed her motion to reopen and set aside that decree.”); see generally First Born Church of the Living God v. Bank of America, 248 Ga. App. 500, 505 (546 SE2d 1) (2001) (finding inapplicable the principle that “the law of the case may not control where the evidentiary posture of the case changes after remand by the appellate court,” where the earlier related appellate court decision did not remand the case for further hearings, but completely resolved the case) (citation and punctuation omitted).

       Supra.


author: MCFADDEN, Judge.

text:
    A15A2264.
    HUGHES v. THE CORNERSTONE INSPECTION GROUP, INC.
    (784 SE2d 116)
   MCFADDEN, Judge.

Paul Hughes appeals from the trial court’s order dismissing his action against The Cornerstone Inspection Group, Inc. (“Cornerstone”) for failure to state a claim under OCGA § 9-11-12 (b) (6). He argues that the trial court erred in adopting as the trial court’s order a proposed order submitted by Cornerstone and that the trial court erred in dismissing his action. Although we find no error in the trial court’s adoption of the proposed order, we agree that the trial court erred in dismissing Hughes’s action for failure to state a claim. Accordingly, we reverse.

1. Adoption of proposed order.

Hughes argues that we should reverse the trial court’s order because the trial court adopted Cornerstone’s proposed order as his final order. Our Supreme Court has made clear that a trial court’s adoption of an order proposed by a party is not an independent ground for reversing the order. See Fuller v. Fuller, 279 Ga. 805, 806 (1) (621 SE2d 419) (2005). Nevertheless, “[w]e take this opportunity to reiterate that the practice of a trial court adopting orders prepared and presented by counsel is greatly disfavored by this [c]ourt.” CNL APF Partners v. Dept. of Transp., 307 Ga. App. 511, 514 (3), n. 17 (705 SE2d 862) (2010) (citation omitted).

2. Dismissal for failure to state a claim.

Hughes argues that the trial court erred in dismissing his action for failure to state a claim under OCGA § 9-11-12 (b) (6). “On appeal, a trial court’s ruling on a motion to dismiss for failure to state a claim for which relief may be granted is reviewed de novo and the pleading challenged, i. e., the [complaint], is construed in favor of the party who filed it.” Northway v. Allen, 291 Ga. 227, 229 (728 SE2d 624) (2012) (citation omitted). As our Supreme Court has explained,

a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

Austin v. Clark, 294 Ga. 773, 775 (755 SE2d 796) (2014) (citation and punctuation omitted).

Hughes filed his complaint on November 14, 2014. Therein, he alleged that he retained Cornerstone to perform an inspection of a residential property; that Cornerstone performed the inspection and provided him with an inspection report; that he purchased the residence in reliance on the inspection report; that he subsequently discovered several defects in the residence that Cornerstone had not identified in its inspection report; that Cornerstone’s inspection was negligent and failed to meet professional standards; and that Cornerstone’s negligence damaged him.

Cornerstone answered, alleging among other things that it performed the inspection pursuant to a contract with Hughes that contained a limitation provision barring the claim. Cornerstone attached a copy of the parties’ contract to its answer. See OCGA § 9-11-10 (c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”). That document, which did not bear the parties’ physical signatures but is purported to have been signed electronically, included the following provision: “Any claim or legal action by Client [Hughes] against Inspector [Cornerstone] must be filed within one year after completion of the inspection of the Property by Inspector.” Cornerstone alleged that it performed the inspection on May 22, 2013, more than one year before Hughes filed his action. (Cornerstone argues that a copy of the inspection report that Hughes attached to his complaint also contains this inspection date, but the date on that copy is illegible.)

Citing the contract’s one-year limitation provision, Cornerstone moved to dismiss Hughes’s action for failure to state a claim under OCGA § 9-11-12 (b) (6). Hughes filed a brief opposing the motion in which he challenged the enforceability of the contract and its limitation provision. He also filed a supporting affidavit in which he averred, among other things, that at the time of the alleged execution of the contract he had not been provided with a copy of it and had not been informed of its terms.

The trial court granted Cornerstone’s motion to dismiss in an order prepared by Cornerstone’s counsel. In that order, the trial court stated that in reaching his decision he had considered the contract attached to the answer but had not considered Hughes’s affidavit because it was not properly admitted evidence.

Under these circumstances, the trial court erred in dismissing the action for failure to state a claim. Hughes alleged in his complaint that Cornerstone’s negligence in conducting the home inspection proximately caused him harm. This stated a claim for negligent inspection of a home. See Redding v. Tanner, 231 Ga. App. 250 (498 SE2d 156) (1998). Hughes was not required in his complaint to anticipate and respond to the contractual limitation period defense asserted by Cornerstone. See Speedway Motorsports v. Pinnacle Bank, 315 Ga. App. 320, 323 (1) (727 SE2d 151) (2012). Cornerstone’s averments in the answer regarding the enforceability of the contractual limitation provision stand denied, because Hughes did not and was not required to respond to the answer. See OCGA § 9-11-8 (d).

Nevertheless, in opposition to the motion to dismiss Hughes did challenge the validity and enforceability of the contract containing the provision that would bar his claim, and he presented affidavit evidence in support of his challenge. Contrary to the trial court’s holding, Hughes properly presented the affidavit as evidence for the trial court’s consideration when he filed it in support of his opposition to Cornerstone’s motion to dismiss. Our Civil Practice Act and the Uniform Superior Court Rules make clear that affidavits are admissible forms of evidence that may be filed in opposition to motions. See, e.g., OCGA §§ 9-11-6 (d); 9-11-56 (c); Uniform Superior Court Rule 6.2. See also Bays v. River Oaks Constr., 244 Ga. App. 401, 402 (1) (535 SE2d 543) (2000) (affidavit attached to defendant’s supplemental brief in support of its motion to dismiss was evidence for court’s consideration).

Decided March 17, 2016.

Herbert P. Schlanger, for appellant.

. Hughes’s challenge to the enforceability of the contract containing the limitation provision precludes dismissal of the action on the basis of that provision at this stage of the proceedings. As we explained in Ga. Farm Bureau Mut. Ins. Co. v. Fowler, 177 Ga.App. 834, 834 (341 SE2d 491) (1986),

the typical case concerning contractual limitations or the waiver thereof appears before this court at a procedural stage where all possible factual issues have been put to rest. Under the [Civil Practice Act], a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. . . . [S]uch facts, if proved by evidence, would authorize a finding that. . . the limitation period [did not preclude the action].

Id. at 834-835 (citations, punctuation and emphasis omitted). Dismissal is improper where “there conceivably could be evidence” to support a plaintiff’s claims. Austin, 294 Ga. at 775. Relevant “factual evidence which may or may not be developed during discovery... can be considered on a subsequent motion for summary judgment.” Id.

Here, the facts set forth in Hughes’s complaint, if true, would support a claim for negligent inspection, and Hughes has challenged the validity and enforceability of the contract containing the limitations provision that Cornerstone argues bars the claim. Under these circumstances, the trial court erred in dismissing the action.

Judgment reversed.

Ellington, R J., concurs. Rickman, J., concurs in Division 2 and in judgment only in Division 1.

Freeman Mathis & Gary, Philip W. Savrin, Michael WolakHI, for appellee.


author: Ray, Judge.

text:
    A15A2353.
    NICHOLS v. THE STATE.
    (783 SE2d 918)
   Ray, Judge.

Timothy Olan Nichols was charged by indictment with one count of possession of methamphetamine. He filed a motion to suppress the evidence seized during the execution of a search warrant for a residence, arguing that the affidavit and application for the search warrant contained insufficient facts to support a finding of probable cause for the search. The trial court denied the motion to suppress, and Nichols filed this interlocutory appeal. For the reasons that follow, we reverse.

On appellate review of a trial court’s decision on a motion to suppress evidence, we accept the trial court’s ruling on disputed facts unless it is clearly erroneous, but the trial court’s application of the law to undisputed facts is sübject to de novo review. See Chatham v. State, 323 Ga. App. 51, 52 (746 SE2d 605) (2013).

In Georgia, our law is clear that “[a] search warrant will.only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed.” (Citation omitted.) State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009); OCGA § 17-5-21 (a).

In determining probable cause for the issuance of a search warrant, the issuing magistrate must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

(Footnote omitted.) Chatham, supra at 51. On appeal, we apply a totality of the circumstances analysis “to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant,” and we are mindful that “a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.” (Footnote omitted.) Id. at 52.

The record shows that an anonymous informant contacted an investigator with the Worth County Sheriff’s Office with allegations that two residences were being used to manufacture methamphetamine. The informant had not previously given information to law enforcement, and the informant’s background was unknown. Over the course of several weeks, the informant made between five and ten telephone calls to the investigator to provide information concerning the activity at the residences. The informant provided the investigator with the number of individuals and a description of the vehicles that could be found at the residences, and the informant stated that it had seen blister packs, camp fuel, batteries, empty lye containers, and possible methamphetamine waste containers in the trash can outside one of the residences. The informant also stated that it had observed an area of dead vegetation outside one of the residences, possibly caused by the dumping of methamphetamine waste. The informant did not report seeing any actual methamphetamine, methamphetamine production, or anyone using methamphetamine at the residences.

In response to the informant’s tips, the investigator went to the residences on several occasions and confirmed that the vehicles matching the description given by the informant were located there, and the investigator ran the vehicle tags and checked with the local utilities to confirm who lived at the residences. The investigator also confirmed that there was an area of dead vegetation outside one of the residences. However, the investigator did not confirm whether items associated with methamphetamine production were located in the trash can. The investigator ran a criminal history of the individuals associated with the residences, and he discovered that an individual who lived at one of the residences had a prior conviction for unlawful possession of anhydrous ammonia, which is a key component for manufacturing methamphetamine.

Relying on the above information, the investigator applied for two search warrants, one for each pf the residences. In regard to the particular search warrant at issue in this case, the investigator submitted a supporting affidavit averring that he had probable cause to believe that methamphetamine and items used to manufacture methamphetamine could be found at the residence. The affidavit states:

[A] reliable and confidential informant, who has requested to remain anonymous, and your affiant, have seen on the property . . . areas where chemicals have been dumped causing the death of vegetation on the property. Within the past 24 hours the reliable and confidential informant has seen blister packs, empty lye containers, destroyed batteries, and methamphetamine waste containers on the property, all of which are common with the manufacture of methamphetamine.

In addition to the affidavit, the investigator provided sworn testimony to the magistrate to show that the investigator had corroborated some, but not all, of the information provided by the informant. Specifically, the investigator corroborated the information concerning the individuals and vehicles that could be found at the residence and the fact that there was dead vegetation on the premises.

During the execution of the warrant at issue, Nichols was found on the premises and searched, and a small amount of methamphetamine was found in his pocket. Another small amount of methamphetamine was found inside the residence.

In his sole enumeration of error, Nichols contends that the trial court erred in denying his motion to suppress because the affidavit and application for the warrant were based upon information provided by a confidential informant whose reliability was not sufficiently demonstrated. We agree.

Where the State seeks to establish probable cause through information provided by an unidentified informant, the informant’s veracity and basis of knowledge are major considerations in the probable cause analysis. An affidavit [and/or the sworn testimony] submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.

(Punctuation, footnotes and emphasis omitted.) Lyons v. State, 258 Ga. App. 9, 11 (1) (572 SE2d 632) (2002).

It is undisputed that, prior to the search warrant at issue, the confidential informant had not assisted law enforcement in any other investigation. But even where a confidential informant is not shown to be inherently credible or reliable, the information that the informant provides may be proved trustworthy if portions of the information are sufficiently corroborated by law enforcement. Lyons, supra at 11 (1). For the corroboration to be meaningful, however,

the information corroborated must include a range of details relating to future actions of third parties not easily predicted. That is, the tip must include inside information not available to the general public; otherwise, the corroboration is not sufficiently meaningful to show reliability.

Decided March 17, 2016.

Matthew T. Dale, for appellant.

C. Paul Bowden, District Attorney, Jennifer D. Hart, Assistant District Attorney, for appellee.

(Punctuation and footnotes omitted.) Id. at 11-12 (1).

Here, the investigator only corroborated the information concerning the individuals, vehicles, and dead vegetation that could be found at the residence — information that was readily available to the general public. Such details were not sufficient, by themselves, to establish that the informant was a credible source of information about the alleged criminal activity occurring there. Notably, the investigator did nothing to independently confirm the informant’s tip that there were items commonly associated with methamphetamine production in the trash can outside the residence. In sum, the independent investigation was insufficient to establish the informant’s reliability to any meaningful degree. See Davis v. State, 214 Ga.App. 36, 37 (447 SE2d 68) (1994) (insufficient corroboration of the informant where the police simply verified that the house in question was located where the informant said it was).

As the application and affidavit for the search warrant in this case contained insufficient information to allow a finding of probable cause to search the residence, the trial court erred in denying Nichols’s motion to suppress.

Judgment reversed.

Barnes, P. J., and McMillian, J., concur.

       Four co-defendants were likewise charged in the indictment. One of the co-defendants was also charged with the additional offense of possession of tools for the commission of a crime.

       The record fails to establish that any evidence was presented as to what had killed the vegetation. There was no evidence that chemicals had been poured on the grass, only supposition of such.


author: Peterson, Judge.

text:
    A15A2135.
    HEANY et al. v. BENNETT STREET PROPERTIES, L.P.
    (785 SE2d 1)
   Peterson, Judge.

David Heany and Thirsty Dog, Inc., brought suit against Bennett Street Properties, L.P., the owner of premises Thirsty Dog formerly occupied, alleging that Bennett Street impermissibly retained certain fixtures and other personal property after Thirsty Dog vacated the premises. They raised claims for conversion, reasonable hire, and fraud. Heany and Thirsty Dog appeal from an order denying their motion for summary judgment and granting Bennett Street’s motion for summary judgment. Appellants argue that the trial court erredby concluding that they had lost any right they might have had to the items in question. Because we find genuine disputes of material fact on that point, we affirm the trial court’s denial of Thirsty Dog and Heany’s motion for summary judgment but reverse the trial court’s grant of summary judgment to Bennett Street.

Bennett Street is the owner of certain premises located at 2110 Peachtree Road in Atlanta (“the Premises”). In 2007, Bennett Street allowed a prior lease for the Premises to be assigned to Anthony LaRocco, who opened a restaurant named Vita. LaRocco then assigned the lease to Vita LLC. Chip Patterson guaranteed the lease. Vita gave Patterson’s company, LaSalle Associates LLLP, a security interest in its fixtures and other items located on the Premises, as evidenced by a UCC Financing Statement filed in February 2008. Vita was unsuccessful and closed around the end of 2009.

Heany was an investor in Vita, loaning money to LaRocco for the restaurant. In return, Heany testified, he and LaRocco ultimately agreed that Heany would own Vita’s equipment and fixtures. Heany said he understood at the time of that unwritten agreement that LaRocco owned those fixtures, but later learned that they had been assigned to Patterson. Heany testified that “within a day or so” after the April 2011 eviction by Bennett Street, LaSalle “assigned the UCC” for the restaurant’s fixtures to him. A UCC financing statement assigning the security interest in the fixtures from LaSalle to Heany was filed on August 29, 2014.

After Vita closed around the end of 2009, a sports bar named Thirsty Dog opened on the Premises. Heany, who said he had a “corporate filing” for Thirsty Dog, invested additional money in the new restaurant, such that he believed that he owned it. Heany claims that he signed a document assigning Vita’s lease for the Premises to Thirsty Dog and points to a document in the record to that effect. Bennett Street accepted rent checks listing Thirsty Dog as the payor, although Bennett Street’s managing partner Jack Brown testified that he considered the checks to have come from Vita. Brown acknowledged that he signed a form so that Thirsty Dog could get a liquor license. But Brown denies signing any new lease or assignment of the lease to Thirsty Dog. Bennett Street contends that the purported lease assignment in the record is a forgery.

Thirsty Dog, which struggled as well, closed around the end of 2010. In the fall of 2010, Bennett Street filed a dispossessory action against Vita. On January 13, 2011, a consent order was entered granting Bennett Street possession of the Premises anda $203,178.41 judgment against Vita for past rent and taxes. Thirsty Dog was not listed as a party to that action, but its lawyer signed separately as having consented to the order on behalf of both Vita and Thirsty Dog. The order provided, “Defendant having agreed to vacate the leased premises and deliver possession of same to Plaintiff on or before January 13, 2011, Plaintiff is entitled to a Writ of Possession which shall be issued instanter.” Underneath the signature of Thirsty Dog’s attorney, a note provided that Thirsty Dog “joins in the execution of this Consent Order to agree to same and to waive any and all claims it may have against Plaintiff.”

Meanwhile, Heany was trying to sell Thirsty Dog’s assets, with LaRocco acting as his liaison to a broker. They entered into negotiations to sell the assets to By the Glass LLC, of which Frank Ski was the managing member. LaRocco testified by affidavit that from January 2011 through the time of the eviction, Thirsty Dog paid Bennett Street, about $47,500 to remain in the property (keeping furniture, fixtures and equipment there) and to continue negotiations with Ski. Bennett Street acknowledges that it agreed to postpone the eviction to allow negotiations to continue, although it says its agreement was with Vita, not Heany or Thirsty Dog, as memorialized in a written agreement signed by Brown on behalf of Bennett Street and LaRocco on behalf of Vita. In his deposition, Heany acknowledged that at least $40,000 of the money paid to Bennett Street in early 2011 came from Ski and was meant to prevent Bennett Street from filing a dispossessory action and allow negotiations with Ski to continue. Characterizing the money as earnest money, Heany said that Ski “paid us, and we paid the rent.”

Efforts to sell the restaurant business to By the Glass fell through, and By the Glass’s counsel terminated the deal with Thirsty Dog in a March 31, 2011 letter. By the Glass’s lawyer demanded the return of $40,000 she characterized as “earnest money,” as well as attorneys’ fees and costs. Bennett Street entered into its own lease agreement for the Premises with By the Glass in April, selling at least some of the fixtures claimed in this action to By the Glass in an agreement dated April 26, 2011. Bennett Street proceeded with the eviction, which was carried out by the county marshal’s office on April 29, 2011. Around the time of the eviction, Brown told Heany and LaRocco they could come back the following week and take additional property that remained on the Premises, such as televisions, but when they returned, Brown refused to let them take everything they wanted, specifically items he says were “bolted down[,] that were attached to the property[,] that I considered ours.” Heany and Thirsty Dog claim that certain property left on the Premises belongs to them. Heany testified that he purchased some of the items before Thirsty Dog opened, while other items were originally purchased by Vita or another entity.

Heany and Thirsty Dog sued Bennett Street to recover damages for the loss of the property. They asserted claims of conversion, reasonable hire, fraud and misrepresentation, punitive damages and attorneys’ fees. The conversion and reasonable hire claims were based on the premise that Bennett Street retained or sold the plaintiffs’ property, while the fraud and misrepresentation claim was based on the allegation that Bennett Street falsely represented to the plaintiffs on the day of the eviction that they would be able to return to the Premises to remove their property. Both sides moved for summary judgment, and the trial court granted the motion filed by Bennett Street and denied the motion filed by Heany and Thirsty Dog. The trial court ruled that, regardless of whether Heany or Thirsty Dog had any security interest in the trade fixtures in question, they had no right to remove the trade fixtures subsequent to the dispossessory order entered in January 2011. The court ruled that any trade fixtures not removed prior to that time became the property of Bennett Street, which meant that the conversion and reasonable hire claims failed. The court also ruled that the fraud and misrepresentation claim failed because the plaintiffs did not have the right to recover the trade fixtures on the day of the eviction and thus any false misrepresentation by Bennett Street did not cause their loss of possession.

On appeal, Heany and Thirsty Dog contend that the trial court erred by (1) granting summary judgment for Bennett despite a valid lease assignment to Thirsty Dog that was never terminated; (2) holding that Bennett Street was entitled to proceed with the eviction on April 29, 2011, irrespective of any oral agreement to allow Thirsty Dog to remain in the Premises through April 2011 in exchange for $47,500; and (3) ruling that Heany and Thirsty Dog lost any right to retake their property after the eviction despite an alleged agreement that the property could be removed the following week. We consider these arguments in terms of the claims made by Appellants. Although the parties and the trial court frequently have conflated the claims of Thirsty Dog and Heany, the complaint makes clear that their conversion claims are separate and based on different theories, so we will address them separately.

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 Ass’n of Savannah, Inc. v. Chatham Cty., 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

1. Thirsty Dog’s Claims for Conversion and Reasonable Hire

The tort of conversion occurs through “an act of dominion over the personal property of another inconsistent with his rights[.]” Romano v. Ga. Dept. of Corrections, 303 Ga. App. 347, 349 (1) (a) (693 SE2d 521) (2010) (citation and punctuation omitted). A claim for reasonable hire is derivative of a claim for conversion. See Ewaldsen v. Atlantic Ins. Brokers, L.L.C., 267 Ga. App. 347, 350 (2) (599 SE2d 223) (2004). Thirsty Dog argues that it had a valid assignment from Vita that created a lease between Thirsty Dog and Bennett Street that was never terminated. Based on this alleged lease assignment, Thirsty Dog claims that Bennett Street converted certain trade fixtures that were Thirsty Dog’s to remove as a tenant.

“A tenant has no right to impose his subtenancy upon the landlord without his consent.” Block v. Brown, 199 Ga. App. 127, 128 (1) (404 SE2d 288) (1991). However, “when the landlord treats the lease as assigned, he is estopped from denying the validity of the assignment.” Id. A landlord’s election to accept the subtenant as his own tenant may be express or may be implied from conduct. Id. at 129 (1). Whether a landlord has accepted a subtenant as his tenant is generally a question for a jury, although express conduct by the landlord may show as a matter of law that the landlord did not accept the subtenant. Meadows v. Siegal, 217 Ga. App. 59, 60-61 (456 SE2d 268) (1995). In addition to evidence that could imply that Bennett Street accepted a lease assignment from Vita to Thirsty Dog, Thirsty Dog points to evidence of an express acceptance, in the form of the written lease assignment bearing the signature of Brown. Brown testified that he never signed such an assignment, and Bennett Street contends the document is a “forgery,” but that merely creates a dispute of fact over whether Bennett Street accepted a lease assignment.

Regardless of whether Bennett Street accepted the lease assignment from Vita to Thirsty Dog, however, any lease between Thirsty Dog and Bennett Street was terminated by January 13,2011, the date of the consent judgment. Thirsty Dog argues that no notice of intent to terminate the lease was sent to Thirsty Dog and it was not named as a defendant to any dispossessory action. See Virginia Highland Assocs. v. Allen, 174 Ga. App. 706, 707-708 (1) (330 SE2d 892) (1985) (entity in actual possession of premises is necessary party to dispossessory action against lessees); May v. Poole, 174 Ga. App. 224, 227 (3) (329 SE2d 561) (1985) (timely demand for possession is condition precedent to institution of dispossessory proceedings). However, through counsel, Thirsty Dog signed the consent judgment that gave Bennett Street immediate possession of the Premises, specifying that it “agreefd] to same.” Although the trial court may be correct that the waiver contained in that judgment could not reasonably encompass any claim of Appellants that might arise after the date of that judgment, we agree with the trial court’s oral ruling at the close of the summary judgment hearing that it was clear from the consent order “that Thirsty Dog did not have any right to possession of the premises.”

OCGA § 44-7-12 provides:

During the term of his tenancy or any continuation thereof or while he is in possession under the landlord, a tenant may remove trade fixtures erected by him. After the term and his possession are ended, any trade fixtures remaining will be regarded as abandoned for the use of the landlord and will become the landlord’s property.

Under that rule, Thirsty Dog lost any right to remove any trade fixtures as of the date of the consent judgment, which gave possession of the Premises to Bennett Street.

However, Thirsty Dog has raised a dispute of material fact as to whether subsequent payments to Bennett Street resurrected its rights. Thirsty Dog argues that its payment of $47,500 allowed it to remain in the Premises and that the trial court erred by finding that any such agreement was too vague to be enforced. Bennett Street claims that it never had any agreement with Thirsty Dog to allow it to remain on the Premises, pointing to Heany’s deposition testimony that $40,000 of the payments to Bennett Street came from Ski. It is true that Heany testified as much, but he said that Ski “paid us, and we paid the rent.” Heany testified that at least one reason for the payments was to allow for additional time to consummate the sale of the restaurant business. Moreover, Heany characterized the money from Ski as earnest money. In keeping with that characterization, when By the Glass’s counsel terminated the deal with Thirsty Dog, she demanded the refund of “$40,000 refundable earnest money paid.” Bennett Street points to its written agreement with Vita, signed by LaRocco, but an affidavit from LaRocco said that from January 2011 through the time of the eviction, Thirsty Dog paid Bennett Street about $47,500 to remain in the property, keeping furniture, fixtures and equipment there, and continue negotiations with Ski.

All of this creates a genuine dispute of material fact as to whether, in exchange for money from Thirsty Dog, Bennett Street agreed to extend Thirsty Dog’s time of possession (and thereby Thirsty Dog’s right to the trade fixtures), and for precisely how long. We, therefore, affirm the trial court’s denial of Thirsty Dog’s motion for summary judgment on its claims for conversion and reasonable hire, as well as any associated claims for punitive damages and attorneys’ fees, but reverse the trial court’s grant of summary judgment to Bennett Street on those claims.

2. Heany’s Claims for Conversion and Reasonable Hire

Although Thirsty Dog’s claim appears to rest on its putative status as a tenant of Bennett Street, Heany’s claim is based on his claimed status as a holder of a security interest in certain items. The trial court appears to have conflated the claims of Heany with those of Thirsty Dog, however, ruling that “[t]he issue of whether Plaintiffs had a security interest in the property is a moot point because it has no bearing on whether Plaintiffs had a right to remove the trade fixtures once their term of tenancy was terminated by the Magistrate Court.” The trial court assumed that, after entry of the consent judgment in the dispossessory action, LaSalle Associates could not assign any interest in the items to Heany, because LaSalle no longer had a security interest in those items. By that point, the trial court reasoned, the items became the property of Bennett Street.

However, a tenant’s abandonment of fixtures pursuant to OCGA § 44-7-12 does not necessarily extinguish someone else’s security interest in that property. Pursuant to OCGA § ll-9-334(f)(2), “[a] security interest in fixtures . . . has priority over a conflicting interest of an encumbrancer or owner of the real property if. . . [t]he debtor has a right to remove the goods as against the encumbrancer or owner.” That priority of interest “continues for a reasonable time if the debtor’s right to remove the goods as against the encumbrancer or owner terminates.” OCGA § ll-9-334(g).

Here, Vita, the debtor within the meaning of OCGA § 11-9-334 (f)(2), had a right under OCGA § 44-7-12 to remove any trade fixtures that it erected, at least until “the term of [its] tenancy or any continuation thereof” and its “possession under the landlord” ended. Thus, for some “reasonable” period of time, LaSalle’s security interest in the items took priority over whatever interest Bennett Street might have received under OCGA § 44-7:12 when it took possession of the Premises. What constitutes such a reasonable time is a question of fact not easily susceptible to resolution on summary judgment. See, e.g., Bishop v. Valley Holding, Inc., 261 Ga. 390, 392 (2) n.4 (404 SE2d 779) (1991) (what constitutes “reasonable time” for performance of contract is a question for the trier of fact). Therefore, we affirm the trial court’s denial of Heany’s motion for summary judgment on his claims for conversion and reasonable hire, as well as any associated claims for punitive damages and attorneys’ fees, but reverse the trial court’s grant of summary judgment to Bennett Street on those claims.

Decided March 4, 2016

Reconsideration denied March 18, 2016

Walter W. Furlong, for appellant.

3. Fraud Claims

Finally, Heany and Thirsty Dog contend that the trial court erred by ruling that they lost their right to retake their property despite what they characterize as an agreement by Bennett Street that they could have into May 2011 to remove their property. This argument appears to be based on testimony by Brown, Bennett Street’s representative, that around the time of the April 29, 2011, eviction he told Heany and LaRocco that they could come back the following week and retrieve the rest of their property. The complaint filed by Heany and Thirsty Dog frames this conversation as the basis for their fraud claims. The trial court concluded that evidence of such a conversation could not provide a basis for the fraud claims because Heany and Thirsty Dog “did not have the right to recover the trade fixtures . . . when the eviction took place” and thus “their loss of possession was not the proximate cause of Defendant’s act.” But, as outlined above, genuine disputes of material fact prevent the Court from concluding at this time that Heany and Thirsty Dog did not have the right to recover the trade fixtures at the time of the eviction. Accordingly, although we affirm the trial court’s denial of Heany and Thirsty Dog’s motion for summary judgment on their fraud claims and any associated claims for punitive damages and attorneys’ fees, we reverse the trial court’s grant of summary judgment to Bennett Street on those claims.

Judgment affirmed in part and reversed in part.

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

Alexandra B. Higgins, for appellee.

       Bennett Street ultimately sued Patterson on the guaranty; the case settled in 2012, and Patterson is not a party to this action.

       Although Brown’s testimony suggests a disagreement over what belonged to the landlord and what constituted trade fixtures that could be removed by a tenant, Bennett Street did not move for summary judgment on the basis that the property at issue did not constitute trade fixtures and therefore was not subject to removal by a tenant. Rather, in its summary judgment brief, Bennett Street said it was “undisputed that the property at issue is trade fixtures.”


author: Branch, Judge.

text:
    A15A1728.
    CHUA v. JOHNSON.
    (784 SE2d 449)
   Branch, Judge.

Noel Chua appeals from an order of the Camden County Superior Court dismissing with prejudice Chua’s complaint against Jackie Johnson, in her capacity as the District Attorney for the Brunswick Judicial Circuit (the “District Attorney” or the “District Attorney’s office”). That complaint, which alleged a violation of Georgia’s Open Records Act, OCGA § 50-18-70 et seq. (“ORA”), sought to require the District Attorney’s office to provide Chua with a copy of a specific document contained in the District Attorney’s files related to that office’s criminal prosecution of Chua. On appeal, Chua contends that the trial court erred in refusing to order the District Attorney to provide him with the document at issue. Specifically, Chua asserts that the District Attorney’s office failed to provide him with the timely and detailed written notice required by ORA, setting forth the reasons for the office’s refusal to produce the document at issue, and that this failure, without more, entitles him to that document. Chua also claims that the trial court erred by failing to hold an evidentiary hearing to determine whether the document in question falls within the attorney work-product exception to ORA. We agree with Chua that the District Attorney’s response to Chua’s document request failed to meet all of the requirements set forth in OCGA § 50-18-71 (d). We find, however, that such a failure does not automatically entitle Chua to the relief he seeks — i.e., the production of the document. We further find that we cannot determine from the current record whether the document in question falls within an exception to ORA. The trial court, therefore, erred when it refused to hold an evidentiary hearing on this issue. Accordingly, we vacate the order of the trial court and remand the case for further proceedings consistent with this opinion.

“Atrial court is vested with discretion in determining whether to allow or prohibit inspection of documents under [ORA]” (Fulton DeKalb Hosp. Auth. v. Miller & Billips, 293 Ga. App. 601, 602 (1) (667 SE2d 455) (2008)), and we therefore review a trial court’s ruling on that issue for an abuse of discretion, which “occurs where the trial court’s ruling is unsupported by any evidence of record or where that' ruling misstates or misapplies the relevant law.” Mathis v. BellSouth Telecommunications, 301 Ga. App. 881, 881 (690 SE2d 210) (2010) (citation and footnote omitted).

The relevant facts are undisputed. In 2006, Chua was indicted in Camden County Superior Court on a number of criminal charges, including felony murder. See Chua v. State, 289 Ga. 220, n. 1 (710 SE2d 540) (2011). That same year, the District Attorney also filed a civil RICO action against Chua in Camden County Superior Court, and that action remains pending. Following a jury trial in 2007, Chua was convicted of multiple counts, and the Supreme Court of Georgia subsequently affirmed his conviction for, among other things, felony murder. Chua, 289 Ga. at 220, n. 1. Chua thereafter filed a habeas corpus petition, which is currently pending in Bibb County Superior Court. Apparently in preparation for pursuing the habeas action, Chua’s attorney filed an ORA request with the District Attorney’s office seeking to review its case files in both the criminal and civil actions brought against Chua. Pursuant to this request, the District Attorney agreed to make the files available for personal inspection by Chua’s attorney on July 24, 2013. On December 23, 2013, following his July inspection of the files, Chua’s lawyer sent a letter to the “Records Custodian” at the District Attorney’s office requesting a copy of the document at issue in this case. That letter notes that counsel had conducted an “open records review” of the files from the civil and criminal cases against Chua in July 2013 and then stated:

As part of that review, one of the many documents provided for me was a six-page [sic] memorandum, without a named author, relating primarily to prospective jurors’[] relationships to [the] then [Camden County] Sheriff . . . . With this letter, I am formally requesting a copy of the aforementioned document, pursuant to OCGA § 50-18-70, et seq. I will be traveling in the Camden County area on Friday, December 27, 2013, and will... therefore be able to come to your office to pick up the document in person, if convenient. Alternatively, if the document [can be located using] the above descriptive information, [transmission by] fax or U.S. mail is perfectly fine.

The open records officer at the District Attorney’s office sent a written response to Chua’s attorney on December 26, 2013, explaining that because of the staff shortage during the holiday season, the records could not be retrieved by December 27. The officer also informed counsel that the estimated cost of retrieving the specific document requested was $56.64, and asked the lawyer “to let me know if this charge is acceptable and if you would like me to begin searching for said document.” Defense counsel faxed a written response to the District Attorney’s office on December 30,2013, in which he agreed to pay the estimated charge for the document.

On January 3, 2014, an assistant district attorney (“ADA”) telephoned defense counsel and left a voicemail message explaining that the ADA had reviewed the document at issue and determined that it was “a document prepared by an attorney in preparation for trial. So it is work product.” The ADA therefore indicated that the District Attorney’s office would not be producing the document. The ADA followed up this message with a letter, dated January 10, 2014 and faxed to defense counsel on January 13, in which he stated that “the document containing juror notes is not subject to the Open Records Act and will not be forwarded to you.”

After the District Attorney’s office refused to provide him with the requested document, Chua filed the current action on May 9, 2014. On January 13, 2015, he filed a motion for summary judgment seeking an order requiring the District Attorney’s office to provide him with the document at issue. Alternatively, Chua sought an evidentiary hearing to determine whether the requested document was subject to an ORA exception. The District Attorney opposed an evidentiary hearing, arguing that the privileged nature of the document was obvious from the contents of the memo itself. The trial court did not schedule a hearing and entered its order, dated February 9, 2015, on March 11. In that order, the trial court found that an evidentiary hearing was unnecessary and that “the Court is authorized to make a determination” as to whether the document was subject to ORA by conducting “an in camera inspection” of the same. The Court further found that the District Attorney’s voicemail message, left for defense counsel on January 3, 2014, was timely and complied with the requirements of ORA. Finally, the trial court held that the memo “deals with the [District Attorney]’s securing of information on jurors in anticipation of a jury trial and is covered by the confidential attorney work product exception” set forth in OCGA § 50-18-72 (a) (42). Chua now appeals from the trial court’s order.

1. We first address Chua’s claim that the trial court erred in finding that the January 3 response from the District Attorney’s office to his ORA request satisfied the requirements of OCGA § 50-18-71. That Code section provides, in relevant part:

In any instance in which an agency is required to or has decided to withhold all or part of a requested record, the agency shall notify the requester of the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph within a reasonable amount of time not to exceed three business days or in the event the search and retrieval of records is delayed pursuant to this subsection or pursuant to subparagraph (b) (1) (A) of this Code section, then no later than three business days after the records have been retrieved. . . .

OCGA § 50-18-71 (d) (emphasis supplied). Chua contends that the January 3 voicemail left by the ADAand the ADA’s January 10 letter confirming that message failed to comply with this provision because they were untimely and failed to inform him “of the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph.” Chua further contends that this violation of ORA means that the District Attorney must provide him with the requested document.

(a) With respect to the question of whether the District Attorney provided an adequate response to Chua’s ORA request, we agree with the trial court that the January 3 voicemail was timely. It is undisputed that the office’s initial response to Chua, in which it informed him that the records were offsite and told him the estimated cost of retrieving the document, was made within three days after Chua’s request. It is also undisputed that Chua’s attorney did not respond to the District Attorney’s office and agree to pay the estimated fee until December 30, 2013. Presumably, therefore, the records were not retrieved before that date. Even assuming that the records were retrieved on December 30, then, as the trial court correctly noted, January 3, 2014, was within three business days of December 30.

Moreover, we note that the voicemail left by the ADA did set forth the legal basis for the District Attorney’s decision to withhold the document, as the message informed Chua’s attorney that the document constituted attorney work product. Despite this fact, however, and despite the timeliness of its response, the District Attorney’s office did not comply with the letter of OCGA § 50-18-71 (d), because it failed to cite the “Code section, subsection, and paragraph” pursuant to which it was denying Chua’s request. Given our history of strictly construing the requirements imposed by ORA, we must conclude that the District Attorney’s failure to comply with the letter of the law violated that statute. See Jaraysi v. City of Marietta, 294 Ga. App. 6, 8-9 (1) (668 SE2d 446) (2008) (requiring strict compliance with that provision of ORA requiring an agency to cite the specific statutory subsection on which it was relying to deny the plaintiffs’ ORArequest). See also Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (when we apply a statute “we must presume that the General Assembly meant what it said and said what it meant”) (citation and punctuation omitted); OCGA § 50-18-70 (a) (stating that it is the intent of the General Assembly that ORA be construed in favor of granting access to public records). Accordingly, we agree with Chua that the trial court erred in dismissing his complaint under ORA. See Jaraysi, 294 Ga. App. at 9 (2) (because plaintiffs could show a violation of ORA, the trial court erred in granting summary judgment against them based on the fact that the city provided the requested documents after the plaintiffs filed their complaint).

(b) Despite Chua’s argument to the contrary, however, the District Attorney’s technical violation of ORA does not entitle Chua to an order requiring the District Attorney to provide him with the document at issue. Rather, Chua will be entitled to the document only if, following an evidentiary hearing on remand, the trial court determines that the requested document is not subject to the attorney work product privilege. Should the court decide that Chua is entitled to the document, it may then determine whether Chua is entitled to attorney fees under the statute. Chua would not, however, be entitled to compensatory or punitive damages. See Wallace v. Greene County, 274 Ga. App. 776, 781 (2) (618 SE2d 642) (2005).

2. In his second enumeration of error, Chua argues that based on the evidence of record, the trial court erred in finding that the document at issue is protected from disclosure by the attorney work product privilege. We find that further proceedings are necessary before this issue can be decided.

ORA provides that “[pjublic disclosure shall not be required for records that are . . . [confidential attorney work product.” OCGA § 50-18-72 (a) (42). As a practical matter, there are two distinct categories of attorney work product: general work product and opinion work product. “General work product” would include “documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative[.]” OCGA § 9-11-26 (b) (3). These items are subject only to a qualified privilege, which may be abrogated when a party seeking those items can prove both that he has a “substantial need” for the items to prepare his case sufficiently and “that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” OCGA § 9-11-26 (b) (3). See also McKesson HBOC v. Adler, 254 Ga. App. 500, 501-503 (1) (562 SE2d 809) (2002) (referring to items that have the qualified privilege as coming under the “work product doctrine”).

“Opinion work product” would include those trial preparation materials that contain “the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” OCGA § 9-11-26 (b)(3). See also McKinnon v. Smock, 264 Ga. 375, 377-378 (2) (445 SE2d 526) (1994) (referring to such items as “opinion work product”). Unlike the qualified privilege afforded other work product, opinion work product is entitled to an absolute privilege and is therefore absolutely protected from disclosure. Id. See also St. Simons Waterfront v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419, 429-430 (2) (746 SE2d 98) (2013). As our Supreme Court has explained, opinion work product is entitled to a higher degree of protection “because there is a ‘higher value’ to be served in protecting the thought processes of counsel.” McKinnon, 264 Ga. at 378 (2) (citation omitted). Thus,

[t]he protection afforded opinion work product creates an environment in which counsel is free to think dispassionately, reliably, and creatively both about the law and the evidence in the case and about which strategic approaches to the litigation are likely to be in his client’s best interests.

Id. at 377 (2) (citation and punctuation omitted).

We emphasize, however, that the mere fact that an attorney has drafted or participated in the drafting of a certain document does not mean that the document is privileged. See Fulton DeKalb Hosp. Auth., 293 Ga. App. at 604 (“[attorney participation, however, does not necessarily bring material within the work product protection”) (footnote omitted). See also St. Simons Waterfront, 293 Ga. at 429-430 (2), citing McKinnon, 264 Ga. at 376 (2). Rather, to bar disclosure, the party asserting the privilege bears the burden of proving both that the document was prepared by its attorney or other representative and that it was prepared in anticipation of a court action. OCGA § 9-11-26 (b) (3); Gen. Motors Corp. v. Conkle, 226 Ga. App. 34, 46 (2) (486 SE2d 180) (1997). And when documents to which a party might otherwise be entitled contain absolutely privileged material — i.e., the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation” — the trial court may conduct an in camera review to determine whether the privileged portions of the document may be successfully redacted prior to ordering their production. St. Simons Waterfront, 293 Ga. at 429-430 (2) (citation and punctuation omitted).

Bearing these principles in mind, we turn to the document at issue in this case. The record shows that the document is a two-page, undated communication, with no identified author or recipient. The author asks the recipient to “drop me a reply and let me know you received it.” The document begins, “[h]ere are the notes,” and states that “[t]hese notes are a composite of several people reviewing the list.” There is no indication of who those “several people” might be. Although there is no evidence in the record regarding the subject of the document, the parties appear to agree, and the trial court appears to have assumed, that the author and others had reviewed the allegedly sealed list of potential jurors on the venire panel for Chua’s criminal trial and were providing information as to whether certain jurors did or did not have ties to the then Camden County Sheriff. The memo contains five paragraphs of information and then lists twenty-one individuals by name and a three-digit number (presumably their juror number). It then provides some information regarding each of those individuals.

Given the lack of information regarding the document’s author or authors, its recipients, and the circumstances under which it was written, we find that an evidentiary hearing is required so that the information necessary to a determination of the document’s status can be obtained. Once the trial court has obtained the relevant information about who created the document, for whom it was created, and why it was created, the trial court should determine whether the evidence shows that the document constitutes attorney work product. If the document does constitute such work product, the trial court should then determine whether it contains “the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” OCGA § 9-11-26 (b) (3). If the document does contain such absolutely privileged material, then the court should also determine whether the entire document is privileged or whether the privileged information could be successfully redacted and the redacted document provided to Chua.

Decided March 21, 2016.

Stephen M. Reba, Mary H. Moses, for appellant.

Jacqueline L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

If the document contains general work product such that only a qualified privilege applies (or if any opinion work product containing absolutely privileged material has been redacted), the court should consider whether the procedure set forth under OCGA § 9-11-26 (b) (3) applies to requests made under ORA where the responding agency claims an exemption for attorney work product. If that procedure does apply, the court must then determine whether Chua can meet his burden of showing both that he has a “substantial need” for the items to prepare adequately for his habeas case and “that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” OCGA § 9-11-26 (b) (3).

For the reasons set forth above, the order of the trial court dismissing with prejudice Chua’s complaint under ORA is vacated. The case is remanded with direction.

Judgment vacated and case remanded with direction.

Miller, P. J., and Mercier, J., concur.

       We emphasize that ORA does not require the trial court to hold a hearing in every case where a dispute arises over whether the party making the ORArequest is entitled to one or more of the documents requested. We find, however, that a hearing is necessary in this case because the contents of the document at issue reveal so little as to the document’s provenance. Thus, an in camera inspection of the document itself did not provide the trial court with enough information to determine whether the document falls within an exception to ORA.

       There is nothing in the current record that indicates the basis for the RICO action.

       See OCGA § 50-18-71 (a) (“[a]ll public records shall be open for personal inspection and copying, except those which by order of a court of this state or by law are specifically exempted from disclosure”).

       Based on the trial court’s order and the briefs of the respective parties, it appears that “prospective jurors” referred to prospective jurors in Chua’s criminal trial. There is no evidence in the record, however, to explain why the District Attorney would be concerned with any relationship a prospective juror in Chua’s’ criminal trial might have with the then-current Sheriff of Camden County.

       We note that the current version of ORA does not require that the agency’s response to a request under the Act be in writing, a fact that Chua acknowledges in his appellate hrief. See OCGA § 50-18-71 (b), (d).

       OCGA § 50-18-71 (b) (1) (A) provides, in relevant part:
      ... In any instance where records are unavailable within three business days of receipt of the request, and responsive records exist, the agency shall, within such time period, provide the requester with a description of such records and a timeline for when the records will be available for inspection or copying and provide the responsive records or access thereto as soon as practicable.

       As the trial court explained, January 1, 2014, was a legal holiday, making Friday, January 3 the third business day after Monday, December 30. And in his brief, Chua concedes that if the District Attorney’s office “did not in fact retrieve the document until December 30, [the] voice mail [response] is arguably timely under . . . OCGA § 50-18-71 (d).”

       In support of this assertion, Chua appears to rely on that part of Jaraysi which held that the city’s failure to enumerate a specific statutory exemption in its initial response denying the plaintiffs’ ORA request meant that the city could not thereafter rely on that exemption to defend against the plaintiffs’ suit for an ORA violation. 294 Ga. App. at 9 (1). That holding, however, was based on statutory language found in the former version of ORA which expressly precluded an agency from adding to or amending the exemptions it initially relied upon in denying the ORA request, except under limited circumstances that were not present in Jaraysi. Id. See also OCGA § 50-18-72 (h) (2008). As part of the 2012 amendment of ORA, however, the language relied upon by the Jaraysi court was deleted from the statute. See Ga. L. 2012, p. 218, §2.
      Furthermore, ORA sets forth the penalties for and procedures upon noncompliance, and there is no provision that would automatically entitle Chua (or any requesting party) to receive a disputed document where the agency in question fails to comply with ORA’s requirements. Rather, OCGA § 50-18-74 (a) provides:
      Any person or entity knowingly and willfully violating the provisions of this article by failing or refusing to provide access to records not subject to exemption from this article, by knowingly and willingly failing or refusing to provide access to such records within the time limits set forth in this article, or by knowingly and willingly frustrating or attempting to frustrate the access to records by intentionally making records difficult to obtain or review shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000.00 for the first violation. Alternatively, a civil penalty may be imposed by the court in any civil action brought pursuant to this article against any person who negligently violates the terms of this article in an amount not to exceed $1,000.00 for the first violation. Aeivil penalty or criminal fine not to exceed $2,500.00 per violation maybe imposed for each additional violation that the violator commits within a 12 month period from the date the first penalty or fine was imposed. It shall be a defense to any criminal action under this Code section that a person has acted in good faith in his or her actions. .. .
      Additionally, OCGA § 50-18-73 gives a requesting party the right to file an action seeking any document that has been withheld. See OCGA § 50-18-73 (a). If the requesting party prevails in such an action then, in addition to an order requiring the agency in question to provide the disputed document, the requesting party may also be entitled to recover reasonable attorney fees and costs. See OCGA § 50-18-73 (b).

       Whether Chua would be entitled to such fees is controlled by OCGA § 50-18-73 (b), which provides:
      In any action brought to enforce the provisions of this chapter in which the court determines that either party acted without substantial justification either in not complying with this chapter or in instituting the litigation, the court shall, unless it finds that special circumstances exist, assess in favor of the complaining party reasonable attorney’s fees and other litigation costs reasonably incurred. Whether the position of the complaining party was substantially justified shall be determined on the basis of the record as a whole which is made in the proceeding for which fees and other expenses are sought.

       In its entirety, OCGA § 50-18-72 (a) provides that public disclosure shall not be required for:
      Confidential attorney work product; provided, however, that this paragraph shall not apply to the factual findings, but shall apply to the legal conclusions, of an attorney conducting an investigation on behalf of an agency so long as such investigation does not pertain to pending or potential litigation, settlement, claims, administrative proceedings, or other judiciál actions brought or to be brought by or against the agency or any officer or employee; and provided, further, that such investigations conducted by hospital authorities to ensure compliance with federal or state law, regulations, or reimbursement policies shall be exempt from disclosure if such investigations are otherwise subject to confidentiality as attorney work product. In addition, when an agency withholds information subject to this paragraph, any party authorized to bring a proceeding under [OCGA §] 50-18-73 may request that the judge of the court in which such proceeding is pending determine by an in camera examination whether such information was properly withheld].]
      Documents that are subject to the attorney-client privilege are addressed in OCGA § 50-18-72 (a) (41), which provides that “[pjublic disclosure shall not be required for records that... [contain] communications subject to the attorney-client privilege recognized by state law[.]”

       In his brief, Chua argues that OCGA § 50-18-72 (a) (42) narrows the definition of attorney work product so that the exception applies only to opinion work product and not to general work product. In support of this argument, ChuareliesonthatpartofOCGA § 50-18-72 (a) (42) that states: “provided, however, that this paragraph shall not apply to the factual findings, but shall apply to the legal conclusions, of an attorney conducting an investigation on behalf of an agency . . . .” Chua’s argument as to the statute’s “narrow definition” of attorney work product, however, ignores additional relevant language found in the statutory subsection. As set forth supra at note 10, OCGA § 50-18-72 (a) (42) provides that the attorney work product exception will not apply to “factual findings ... of an attorney conducting an investigation on behalf of an agency so long as such investigation does not pertain to pending or potential litigation, settlement, claims, administrative proceedings, or other judicial actions brought or to be brought by or against the agency or any officer or employee____” In other words, the exception does apply to any investigation and report thereof that was “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative!-]” OCGA § 9-11-26 (b) (3).

       The memo does contain the author’s office and cell phone numbers. In his complaint, Chua asserted that these numbers belonged to an individual who in 2007 was both an attorney in Camden County and was serving on the Camden County Commission. In her answer, however, the District Attorney denied this assertion. Given these facts, and given that the record contains no other information regarding the document’s origins, it is impossible for this Court to determine its author or authors at this point.

       We realize that this issue is a question of law. Neither of the parties briefed this question, however, and under the circumstances “it seems most appropriate to leave it to the trial court on remand” to require the parties to address this issue in the first instance. Deal, 294 Ga. at 187 (3).