text:
    A11A0284, A11A0285.
    HOOVER v. MAXUM INDEMNITY COMPANY; and vice versa.
    (712 SE2d 661)
   Miller, Presiding Judge.

James Matthew Hoover filed the instant action against Maxum Indemnity Company, seeking to recover under an insurance policy issued by Maxum to its insured, Emergency Water Extraction Services, LLC (“EWES”). Hoover’s complaint alleged that Maxum’s policy provided coverage for the bodily injuries he sustained during an accident, and that Maxum breached its duties to defend EWES and to indemnify his claim for compensation. Maxum denied Hoover’s allegations and filed a motion for summary judgment, contending that Hoover’s claim was not covered under its policy since timely notice of the occurrence had not been given, and since a policy exclusion applied. Hoover filed a motion for partial summary judgment, contending that Maxum was liable for breach of the duty to defend as a matter of law. The trial court granted the motions filed by both parties, finding that Maxum had breached a duty to defend EWES against the underlying claim, but did not breach a duty to indemnify since there was noncompliance with the policy’s notice requirements. These cross-appeals ensued.

We conclude that the evidence established an unreasonable failure to give timely notice as required by the policy, and therefore, Maxum was not obligated to provide either a defense or coverage. Accordingly, in Case No. A11A0284, we affirm the trial court’s decision granting summary judgment in favor of Maxum. In Case No. A11A0285, however, we reverse the trial court’s decision granting partial summary judgment to Hoover as to the duty to defend claim.

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.

(Citation omitted.) Kay-Lex Co. v. Essex Ins. Co., 286 Ga. App. 484, 485 (649 SE2d 602) (2007).

So viewed, the record evidence shows that Hoover was employed as a water technician with EWES. On October 20, 2004, Hoover’s supervisor asked him to deliver an extension ladder to the residence of a EWES customer. The residence was undergoing roof repairs by a contractor who was not affiliated with EWES. After Hoover delivered the ladder to the residence, the contractor asked Hoover to climb onto the roof and assist with the roof repairs. Hoover agreed and climbed up the ladder to the roof.

Hoover later descended from the roof, using a different ladder that had been placed against the residence. Upon his descent, the ladder collapsed and Hoover fell approximately 25 to 30 feet to the ground. Hoover struck the back of his head and neck, causing him to sustain a catastrophic brain stem injury. Hoover was transported to the hospital for treatment of his life-threatening injuries.

The co-owner of EWES, Jeff Owen, was made aware of the accident on the same day that it occurred. Owen went to the hospital and spoke to Hoover’s father. Owen testified that at that time, Hoover’s father requested EWES’s insurance information and stated that he intended to contact the insurer for verification of the policy and coverage. Approximately one week later, Owen had another conversation with Hoover’s father, who allegedly stated that he had “put in a call to somebody and was waiting to hear back[.]” Owen claimed that he believed that Hoover’s father had contacted Maxum since he had obtained the policy information from EWES and was familiar with the amount of coverage under the policy.

On October 18, 2005, Hoover filed a workers’ compensation action against EWES. The workers’ compensation action was subsequently dismissed since EWES was not subject to the Workers’ Compensation Act.

Thereafter, on September 22, 2006, Hoover filed a tort action against EWES, alleging that it was liable for the negligence of its supervisor under the doctrine of respondeat superior. By a letter dated October 18, 2006, EWES’s counsel forwarded the complaint from the underlying tort action to Maxum, indicating that the complaint had been served on or about September 25, 2006, that counsel was familiar with the claim, and that a determination was needed as to whether counsel’s law firm should continue defending the claim on behalf of EWES and Maxum.

On October 23, 2006, Maxum responded that the October 18 letter was the first notice that it had received of the occurrence. Maxum’s letter went on to state that coverage did not exist for the occurrence under its policy since Hoover’s supervisor was not defined as an insured and since the policy contained an “Employer’s Liability” exclusion, which expressly provided that the insurance did not apply to bodily injury of an employee of EWES arising out of and in the course of employment by EWES or performing duties related to the conduct of EWES’s business. In addition, Maxum’s letter stated that “[cjoverage for this matter may be barred or limited to the extent the insured has not complied with the notice provisions under the policy.” The letter further specified as follows:

Maxum’s specific enumeration of the above policy defenses is not intended as a waiver of any other policy defenses that Maxum may now have or that may arise from facts discovered in the future[,] nor should Maxum be estopped from raising additional coverage defenses. Maxum also continues to reserve the right to raise any other coverage defenses, including the right to disclaim coverage on any other basis that may become apparent as this matter progresses and as Maxum obtains additional information.

Maxum did not provide a defense for EWES in the underlying tort action. EWES instead retained and was represented by its own defense counsel. Hoover filed a third-party complaint against Maxum for indemnification in the underlying tort action, but the third-party complaint was subsequently dismissed. Following a bench trial, a judgment in the amount of $16,456,501.60 was entered in favor of Hoover against EWES. Thereafter, EWES assigned its right of action against Maxum to Hoover, pursuant to a post-judgment assignment of action.

Hoover then commenced the instant lawsuit against Maxum, asserting claims for breaches of the duties to provide a defense and indemnification under the policy. The trial court resolved the lawsuit by granting both parties’ cross-motions for summary judgment.

Case No. A11A0284

1. (a) Hoover contends that the trial court erred in granting Maxum’s motion for summary judgment since a jury question existed as to whether Maxum received timely notice of the occurrence in accordance with the policy’s terms. We disagree.

“Insurance is a matter of contract and the parties are bound by the terms of the policy. It is also the general rule that the insured is chargeable with knowledge of all the conditions imposed upon him by the terms of his policy.” (Citations and punctuation omitted.) Richmond v. Ga. Farm &c. Ins. Co., 140 Ga. App. 215, 221 (3) (231 SE2d 245) (1976). Notice provisions in an insurance policy are valid and must be complied with, absent a showing of justification. Id. at 222 (3). Significantly,

[t]he purpose of the notice provision in an insurance policy is to enable an insurer to investigate promptly the facts surrounding the occurrence while they are still fresh and the witnesses are still available, to prepare for a defense of the action, and, in a proper case, to determine the feasibility of settlement of the claim.

(Citations omitted.) Id. at 221-222 (3). When timely notice of an occurrence is not given, the insurer is deprived of the opportunity to perform a prompt investigation and to preserve essential evidence. Id.; see also Bituminous Cas. Corp. v. J. B. Forrest & Sons, 132 Ga. App. 714, 716-717 (1) (209 SE2d 6) (1974). Consequently,

[w]here an insured has not demonstrated justification for failure to give notice according to the terms of the policy, and where the insurer has not waived compliance with the terms or any objections to the insured’s failure, then the insurer is not obligated to provide either a defense or coverage.

(Citations omitted.) Richmond, supra, 140 Ga. App. at 222 (3).

Here, the pertinent notice provisions of Maxum’s policy stated as follows:

SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS
2. Duties in the Event of Occurrence, Offense, Claim or Suit
a. You must see to it that we are notified as soon as practicable of an “occurrence” or an offense which may result in a claim. To the extent possible, notice should include:
(1) How, when and where the “occurrence” or offense took place;
(2) The names and addresses of any injured persons and witnesses; and
(3) The nature and location of any injury or damage arising out of the “occurrence” or offense.

The undisputed evidence showed that on the date of the occurrence, EWES’s co-owner was aware of the occurrence and the life-threatening injuries that Hoover had sustained. He also was aware that a claim against EWES was expected to be filed on Hoover’s behalf. Moreover, he knew that EWES had an insurance policy with Maxum that may have provided coverage. It is further undisputed that EWES’s co-owner did not notify Maxum of the occurrence at that time. There also was no evidence indicating that Maxum was notified by any other EWES representative or co-owner.

Hoover nevertheless contends that Maxum received timely notice of the occurrence through his father. In this regard, Hoover relies upon EWES’s co-owner’s testimony that approximately one week after the occurrence, Hoover’s father told him that he had “put in a call to somebody and was waiting to hear back” from Maxum. Contrary to Hoover’s contention, however, the alleged statement did not reflect that his father had given the required notice to Maxum. There was no evidence establishing that the “somebody” who his father allegedly contacted was an authorized agent of Maxum. See Kay-Lex Co., supra, 286 Ga. App. at 489 (1) (a) (finding that notice to an independent insurance agent was insufficient to establish notice to the insurer). Moreover, the evidence failed to set forth the contents or substance of his father’s statements during the alleged call, and thus, did not show that his father had provided notice of the occurrence. And testimony that Hoover’s father was familiar with the amount of coverage under the policy did not otherwise indicate that Maxum had been notified.

Maxum contends that it did not receive notice of the occurrence until October 18, 2006, when EWES’s counsel forwarded to it the complaint that had been filed in the underlying tort action. Under the circumstances presented, the two-year delay in notifying Maxum of the occurrence was unjustified and unreasonable as a matter of law. See Kay-Lex Co., supra, 286 Ga. App. at 488-490 (1) (a) (concluding that unjustified 12-month delay in notifying the insurer of the accident was unreasonable as a matter of law); Richmond, supra, 140 Ga. App. at 221 (2) (concluding that unjustified eight-month delay in notifying the insurer of the accident was unreasonable as a matter of law).

Generally, whether an insured’s notice to an insurer is “as soon as practicable” is a question of fact for a jury. Under all of the facts and circumstances of a particular case it may be found that an insured’s delay in giving notice of an accident to his insurer was unjustified and unreasonable. In such event, on a motion for summary judgment, the court may rule on the question as a matter of law.

(Citations and punctuation omitted.) Caldwell v. State Farm &c. Ins. Co., 192 Ga. App. 419, 420-421 (2) (385 SE2d 97) (1989). Because all of the facts and circumstances established that the two-year delay in giving notice to Maxum was unjustified and unreasonable, the trial court’s decision granting summary judgment to Maxum was proper. See Richmond, supra, 140 Ga. App. at 221 (2).

(b) Hoover further contends that Maxum waived its policy defense regarding notice by failing to assert it as a ground for the denial of coverage in its October 23 letter. Hoover’s contention is without merit.

It is true that “an insurer may waive any provision in an insurance policy inserted for its benefit, and may waive any condition or limitation in the policy upon which it could otherwise rely.” (Citations and punctuation omitted.) Sargent v. Allstate Ins. Co., 165 Ga. App. 863, 865 (1) (303 SE2d 43) (1983). To establish a waiver, the evidence must show that after receiving notice of the occurrence, the insurer otherwise expressly or impliedly took a position indicative of its intent not to enforce satisfaction of the timely notice requirement. See Brazil v. Govt. Employees Ins. Co., 199 Ga. App. 343, 344 (1) (404 SE2d 807) (1991). No such evidence exists in this case.

The October 23 letter that Maxum issued upon being notified of the claim pertinently stated that “[cloverage for this matter may be barred or limited to the extent the insured has not complied with the notice provisions under the policy.” Maxum further added that its enumeration of the referenced policy defenses “[was] not intended as a waiver of any other policy defenses that Maxum may now have or that may arise from facts discovered in the future” and that it was “reserv[ing] the right to raise any other coverage defenses . . . that may become apparent as this matter progresses and as Maxum obtain[ed] additional information.” Moreover, Maxum raised the notice defense in its answer to Hoover’s third party complaint in the underlying tort action. The notice defense was also raised in Max-um’s answer in the instant action. This evidence establishes that Maxum did not expressly or impliedly waive the notice defense. See Kay-Lex Co., supra, 286 Ga. App. at 491 (1) (b); Brazil, supra, 199 Ga. App. at 344 (1).

Case No. A11A0285

2. In its cross-appeal, Maxum challenges the trial court’s decision granting Hoover’s motion for partial summary judgment. Maxum contends that the trial court erred in finding that it had breached its duty to provide a defense in the underlying tort action. We agree.

As explained in Division 1 (a) above, the evidence established an unjustifiable and unreasonable failure to comply with the notice provisions of Maxum’s policy. As a result, Maxum was not obligated to provide either a defense or coverage. See Kay-Lex Co., supra, 286 Ga. App. at 488 (1) (a); Richmond, supra, 140 Ga. App. at 221 (3). “If the insured elects to rest on his own conclusion of non-liability and do nothing about the giving of notice, he violates his contractual obligation and waives his right to have the insurer defend against a claim that may be made at some later time.” Bituminous Cas. Corp., supra, 132 Ga. App. at 717-718 (1). Since timely notice of the occurrence was not provided as required by the policy, Maxum’s failure to undertake a defense in the underlying tort action was legally justified and no breach of duty occurred. Id. (ruling that an insurer will not be bound to defend the insured if there has been unjustifiable noncompliance with the notice provisions of the insurance policy).

Decided June 24, 2011

Lance A. Cooper, for appellant.

Freeman, Mathis & Gary, Philip W. Savrin, Dari H. Champion, Jr., for appellee.

Judgment affirmed in Case No. A11A0284. Judgment reversed in Case No. A11A0285.

Ellington, C. J., and Doyle, J., concur.

       Owen testified that Hoover’s father was an insurance agent for a different insurer, State Farm Insurance Company. Hoover’s father later died and did not testify in any of the underlying proceedings.

       Subsection b of the policy’s notice provisions further provided that “[i]f a claim is made or suit is brought against any insured, . . . [the insured] must see to it that [Maxum] receive written notice of the claim or suit as soon as practicable” and “[¡Immediately send [Maxum] copies of any demands, notices, summonses or legal papers received in connection with the claim or suit[.J” (Emphasis supplied.) In its order granting Maxum’s motion for summary judgment, the trial court erroneously determined that the policy’s provisions required written notice of the “occurrence.” Contrary to the trial court’s determination, the policy’s notice provisions did not require written notice of an “occurrence”; rather, written notice was required only if a “claim” or “suit” was filed. Nevertheless, “a grant of summary judgment is to be affirmed if it is right for any reason[.]” (Footnote omitted.) Abellera v. Williamson, 274 Ga. 324, 326 (2) (553 SE2d 806) (2001).

       To the extent that the statement was considered for the limited purpose to prove that Maxum had notice of the occurrence, it did not constitute inadmissible hearsay. See Encompass Ins. Co. of America v. Friedman, 299 Ga. App. 429, n. 1 (682 SE2d 694) (2009); Quiktrip Corp. v. Childs, 220 Ga. App. 463, 466 (3) (469 SE2d 763) (1996). Moreover, an exception to the hearsay rule will be allowed from necessity “where necessity and particularized guarantees of trustworthiness are established.” (Punctuation and footnote omitted.) Lewis v. Emory Univ., 235 Ga. App. 811, 816 (2) (509 SE2d 635) (1998). See also OCGA § 24-3-1 (b). Here, the declarant, Hoover’s father, was deceased. “[T]he mere fact that a witness is dead does not render his declarations admissible, although, if in addition to the death of a witness there are circumstances which attribute verity to his declarations, the hearsay rule may be relaxed to permit the admission of such declaration.” (Punctuation and footnote omitted.) Lewis, supra, 235 Ga. App. at 817-818 (2).

       Compare Southern Guaranty Ins. Co. v. Miller, 183 Ga. App. 261, 263 (358 SE2d 611) (1987) (concluding that a 14-month delay in giving notice to the insurer was not unreasonable as a matter of law since the incident could be deemed as so trivial and inconsequential that the insured was not aware that it would give rise to a claim); State Farm &c. Ins. Co. v. Sloan, 150 Ga. App. 464, 467-468 (4) (258 SE2d 146) (1979) (concluding that the approximate six-month delay in giving notice to the insurer was not unreasonable as a matter of law since the insured was unaware that coverage for the accident existed under the policy). Here, however, EWES’s co-owner was aware that Hoover had sustained life-threatening injuries as a result of the occurrence, that there could be coverage under the Maxum policy, and that a claim was likely to be filed.

       Hoover incorrectly relies on the case Browder v. Aetna Life Ins. Co., 126 Ga. App. 140, 144 (2) (190 SE2d 110) (1972), which has been disapproved on other grounds by Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 29 (1) (343 SE2d 680) (1986). In Browder, the requirement for timely notice was waived since the insurer had expressly stated that the untimely notice “would not have much bearing on [the] case.” Id. at 143-144 (2). Browder, however, is clearly distinguishable from the instant case since Maxum raised the notice defense and further disclaimed any waiver of the defense.


source: Caselaw Access Project

author: Barnes, Presiding Judge.

license: Public Domain

text:
    A11A0429
    STURGENT v. THE STATE.
    (712 SE2d 667)
   Barnes, Presiding Judge.

A Douglas County jury found Kiman Sturgent guilty of armed robbery, aggravated assault, and two counts of possession of a firearm during the commission of a crime. He was sentenced to 20 years incarceration followed by 20 years probation. Following the denial of his motion for new trial, Sturgent appeals and contends the trial court erred in denying his motion for directed verdict based on the insufficiency of the evidence. Finding no error, we affirm.

The standard of review of a trial court’s denial of a motion for directed verdict is “whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 313 (I) (99 SC 2781, 61 LE2d 560) (1979). See also Harris v. State, 308 Ga. App. 456, 456-458 (1) (707 SE2d 878) (2011). This court no longer affords the defendant the presumption of innocence, and views the evidence in the light most favorable to the jury’s verdict. Id. at 456.

So viewed, the record reveals that on June 29, 2003, two men robbed a Burger King restaurant at gunpoint on Fairburn Road in Douglas County while a third individual waited outside in a sport utility vehicle (SUV). After the robbery, the two men left the premises in the SUy and a high-speed chase involving fifteen to twenty patrol cars ensued which ended when the vehicle stopped and two men exited through the sunroof and attempted to flee.

While one suspect was not apprehended after evading the police, the other was captured and later identified as Michael Burton. The driver resisted arrest, but was eventually taken into custody and identified as Linda Scott. As a part of their plea, both Burton and Scott testified that Sturgent was the third suspect in the robbery.

Sturgent contends that the trial court erred in denying his motion for directed verdict because the circumstantial evidence was insufficient to sustain his conviction. Upon our review, we affirm. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypotheses of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” (Emphasis supplied.) OCGA § 24-4-6. While

in certain cases, including prosecutions for . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient[,] . . . corroborating circumstances may dispense with the necessity for the testimony of a second witness[.]

OCGA § 24-4-8. “The corroborating evidence may consist entirely of circumstantial evidence . . . [and] requires only slight evidence from an extraneous source identifying the accused as a participant in the criminal act.” (Citations and punctuation omitted.) Ward v. State, 304 Ga. App. 517, 524 (4) (696 SE2d 471) (2010). “[T]he sufficiency of the corroborating evidence is a matter for the jury.” (Citations and punctuation omitted.) Id. at 525.

Here, the record contains not only testimony from the accomplice witnesses, but also corroborating circumstances that identify Sturgent as a party to the crime. Footage from the video-surveillance camera located in the Burger King portrayed two males wearing ball caps entering the Burger King restaurant. A police officer testified that the two suspects in the video were similar in height and weight to Sturgent and Burton. The subject in the video identified as Burton took the black cash drawer and carried a silver handgun, and the other subject carried a black handgun.

During trial, police officers described the evidence obtained from the search of the vehicle, including a black Astra 9-millimeter containing Sturgent’s fingerprint on the ammunition clip, a silver .38 caliber Taurus revolver and ammunition, and a black cash drawer similar to the one carried by Burton in the video footage. Both guns were similar to the ones used in the robbery.

Decided June 24, 2011.

Mary Erickson, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

The police also found two ball caps in the vehicle that were identified as those used in the robbery. The cap worn by the suspect who was seen with Burton in the surveillance video contained Sturgent’s DNA. Furthermore, one of two cell phones found in the vehicle was identified as belonging to Sturgent.

We hold that a rational trier of fact could have found Sturgent guilty beyond a reasonable doubt. Accordingly, we affirm.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: Adams, Judge.

text:
    A11A0714.
    RAMSEY v. MIDDLETON.
    (713 SE2d 428)
   Adams, Judge.

Emmett Reid Ramsey appeals following the imposition of a stalking protective order, arguing that the trial court abused its discretion by entering the order because the evidence was insufficient to establish the elements of the offense of stalking. We agree and reverse.

The record shows that Ramsey and the petitioner, Ginger Leeanne Middleton, had a personal relationship over 15 years ago. At the time of the incident giving rise to the filing of the petition, Ramsey had a contract with the local school system to paint the school and for that reason was frequently on school property. Middleton’s children attended one of the schools, and after she was a character witness against Ramsey in unrelated litigation, Middleton began making complaints against him when she would see him in the same areas of the school where she would be picking up her children. Middleton also requested that the school resource officer inform Ramsey to stay away from her and her children because she was afraid of him due to their past history and her testimony against him. Middleton also testified that she and her husband began documenting and photographing Ramsey’s appearances “every single time he came into the school zone.” Middleton also alluded to “incidents” involving Ramsey since she had been a witness against him, but did not give any explanation or present other evidence concerning what occurred during these “incidents.” Further, Middleton testified that Ramsey did not speak to her or her children, threaten her, text her, or otherwise communicate verbally or in writing during any of the times she had seen him on school property.

Middleton further testified that at the time of the incident giving rise to the filing of the petition, she and her husband were parked in the back parking lot of the middle school near the ball fields. The parking lot is a U-shaped, one-way parking lot, and it appears that the Middletons were parked at the apex of the parking lot. Ramsey drove into the parking lot, and according to Middleton, stopped, turned his wheels hard to the right and then came directly at them “knowing that my husband was taking pictures at that time.” Middleton also testified that there were children and parents in the parking lot and Ramsey was driving without regard for their safety.

Middleton testified that Ramsey then pulled into the far end of the parking lot, and the evidence shows that Ramsey called 911. Joseph Simms, the school resource officer, arrived at the scene and spoke to Ramsey, who told him he was in fear for his life because he knew Middleton’s husband had a gun. Simms testified he told Ramsey he was “full of shit” and explained that the reason he said that was because he did not think Ramsey would be standing in the middle of the parking lot if he was afraid. Simms further testified that he advised Mr. Middleton to take out a warrant for Ramsey, and a warrant for assault was subsequently issued against Ramsey but was, according to the briefs of the parties, later dismissed.

Simms also testified that he observed a videotape of the incident in the parking lot and that Ramsey drove straight toward the Middletons’ vehicle, turned away just before he got to it, and then briefly drove as if he was going to back into it. Simms also testified that the video showed, contrary to Middleton’s testimony, that there was no one in the parking lot except the Middletons at the time Ramsey was driving through. Further, he said that Ramsey had complained to him about the Middletons taking pictures of him, and the report he filed concerning the incident stated that Ramsey had also complained about being watched everywhere he went. Further, the report indicated that Ramsey told him that he was there to watch a ball game with a friend, and that friend testified that he had asked Ramsey to come down to the belli fields that day. Simms also testified that he had contacted someone concerning Ramsey’s contract with the school and that it was confirmed to him that Ramsey had a contract to paint the school and had permission to be there “at all hours during the day.” The maintenance director for the school also testified that Ramsey had a contract to paint the school and that he had known Ramsey for four and one half years and that there had never been any issues or problems with Ramsey during that time.

Stalking is defined in OCGA § 16-5-90 (a) (1):

A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. . . . [T]he term “contact” shall mean any communication[.] . . . [T]he term “place or places” shall include any public or private property occupied by the victim other than the residence of the defendant. . . . [T]he term “harassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.
In order to obtain a protective order based on stalking, the petitioner must establish the elements of the offense by a preponderance of the evidence. OCGA §§ 16-5-94 (e), 19-13-3 (c). The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court. . . , and will not be reversed absent an abuse of that discretion. Alexander Properties Group, Inc. v. Doe, 280 Ga. 306, 307 (1) (626 SE2d 497) (2006).

Pilcher v. Stribling, 282 Ga. 166, 167 (647 SE2d 8) (2007).

In this case, we agree with Ramsey that Middleton did not meet her evidentiary burden and that the trial court abused its discretion by issuing the protective order. Even construed to support the trial court’s imposition of the protective order, De Louis v. Sheppard, 277 Ga. App. 768, 769 (627 SE2d 846) (2006), the evidence admitted at the hearing was clearly insufficient to establish the necessary “pattern” of harassing and intimidating behavior. See State v. Burke, 287 Ga. 377, 378-379 (695 SE2d 649) (2010) (“harassing and intimidating conduct must be established by, among other things, ‘a pattern of harassing and intimidating behavior’ ” and a single violation of a protective order by itself is insufficient) (punctuation omitted; emphasis in original). Even assuming that the incident in the parking lot constituted the requisite contact of an intimidating or harassing nature, the only other evidence presented was that Ramsey and Middleton would sometimes be in the same place at the school, a place both had the right to be. Although, as stated in footnote 1, Middleton argues in her brief on appeal that Ramsey made it a point of being in the same place where she was picking up her children, and that he would look at her so as to make her fearful, she did not testify to these alleged occurrences at the hearing, referring vaguely only to “incidents” which started occurring after she testified against Ramsey in another matter. Likewise, although Middleton argues that there were “witnesses that could have been called” to testify about “behavior that would be considered intimidation for the purpose of causing fear,” those witnesses were not called despite it being Middleton’s burden to furnish the necessary proof of her allegations of stalking. Based on the record before us, we find that Middleton did not meet her burden of showing that Ramsey committed the offense of stalking and that, therefore, the protective order must be reversed.

Decided June 24, 2011.

Rudjard M. Hayes, for appellant.

Ginger L. Middleton, pro se.

Judgment reversed.

Barnes, P. J., and Blackwell, J., concur.

       In her brief on appeal, which she only filed after being ordered to do so by this Court, Middleton states that “Ramsey would . . . make it a point to drive through the areas [where she] would be waiting on [her] children . . . [and] would drive by [her] vehicle and look at [her] as if he wanted [her] to see him and to make [her] fearful of his presence.” However, neither she nor anyone else testified about these events. And although Middleton requests that we overlook any deficiencies in her brief on appeal due to her pro se status, she has provided no citations to the record or transcript and many of her factual assertions appear to be without evidentiary support.


text:
    A11A0478.
    CROSSMARK, INC. et al. v. STRICKLAND.
    (713 SE2d 430)
   Barnes, Presiding Judge.

The employer Crossmark, Inc., and its insurer American Casualty Company of Reading, Pennsylvania (“Crossmark”) appeal a superior court order affirming an award of benefits in this workers’ compensation case. For the reasons that follow, we affirm.

This is the second time we have considered this claim on appeal. In Strickland v. Crossmark, 298 Ga. App. 568, 570-571 (1) (680 SE2d 606) (2009), we held that the superior court lacked jurisdiction to review an order by the Appellate Division of the State Board of Workers’ Compensation remanding a claim to the administrative law judge (“ALJ”). The case was returned to the ALJ, who found invalid the employer’s notice of its intention to controvert the employee’s claim and awarded the employee continued benefits and attorney fees. The Appellate Division and the superior court affirmed, and this court granted the employer’s application for discretionary review.

As established in the record, Mary Ann Strickland began receiving benefits after reporting an injury, but her employer, Crossmark, then terminated the benefits and filed a notice of its intention to controvert the claim. At the initial hearing, the parties stipulated that Crossmark had timely notice of the claim, that it had paid Strickland temporary total disability benefits for a time, and that Crossmark had controverted the claim.

After the parties presented evidence at the first hearing about Strickland’s claim of a back injury, the ALJ found that Strickland failed to establish by a preponderance of the evidence that her injury arose out of and in the course of her employment. Strickland appealed to the Appellate Division, contending for the first time that Crossmark’s notice to controvert was invalid because it had failed to pay her all the benefits she was due before filing the notice and ending her compensation. She also argued that the ALJ erred in finding that her injury was not compensable. Crossmark responded that Strickland had waived the notice to controvert issue by failing to raise it before the ALJ. The Appellate Division vacated the ALJ’s decision and remanded the claim to allow Crossmark the opportunity to be heard and present evidence on whether its notice to controvert was valid.

Crossmark appealed the remand order to the superior court, which reversed the Appellate Division. The superior court found that Strickland could not dispute the notice to controvert for the first time before the Appellate Division, and Strickland filed an application for discretionary review in this court. We granted the application and reversed the superior court, holding that the Appellate Division’s remand order was not final and therefore the superior court had no jurisdiction to consider it. Strickland, 298 Ga. App. at 571 (1).

Upon remand, the ALJ held a second hearing and concluded that, procedurally, the Appellate Division had the authority to consider whether Crossmark’s notice to controvert was valid and to remand the claim to the ALJ for further proceedings on that issue. Substantively, the ALJ found that Crossmark’s notice to controvert was invalid because the company had not paid Strickland all the benefits she was due before filing the notice and unilaterally ending her compensation. Specifically, the company had underpaid Strickland’s wage benefits by approximately $100 per week and had not paid her for the first seven days of wage benefits, to which she became entitled after she was out of work for twenty-one consecutive days. Therefore, the ALJ concluded, pursuant to this court’s holding in Cartersville Ready Mix Co. v. Hamby, 224 Ga. App. 116, 117 (2) (479 SE2d 767) (1996), the company was precluded from contesting the initial compensability of Strickland’s claim without newly discovered evidence or a subsequent change in condition. The ALJ ordered Crossmark to pay continuing temporary total disability benefits and related medical expenses from the date of injury, and assessed attorney fees under OCGA § 34-9-108 (b) (2) for Cross-mark’s failure to comply with OCGA § 34-9-221.

The Appellate Division adopted the ALJ’s findings of fact and conclusions of law, and the superior court affirmed the decision of the Appellate Division. This court granted Crossmark’s application for discretionary review.

Crossmark enumerates eight errors, but essentially argues three points: (1) the superior court used the wrong standard of review; (2) the superior court erred in affirming the Division on procedural grounds; and (3) the superior court erred in affirming the Division on substantive grounds, as to both the benefits and the attorney fees, because this court should overrule its previous decisions holding that a notice to controvert is invalid if the employer has not paid the employee all the benefits due as of the date of the notice.

1. In its order, the superior court stated that it affirmed the Appellate Division’s award “based upon the ‘any evidence’ rule.” Crossmark is correct that the court applied the wrong standard of review in considering the legal questions involved in this case. While the superior court must affirm an Appellate Division’s findings of fact if “any evidence” supports them, “decisions based on erroneous theories of law . . . are subject to the de novo standard of review.” (Citations omitted.) Strickland, 298 Ga. App. at 569. Regardless of the stated standard of review, however, “[a] ruling right for any reason will be affirmed.” (Citation, punctuation and footnote omitted.) Trent Tube v. Hurston, 261 Ga. App. 525, 528 (1) (583 SE2d 198) (2003). And, as discussed infra, the superior court’s ruling was substantively correct, and so any misstatement regarding the standard of review was harmless. Therefore, we will consider Cross-mark’s other enumerations.

2. Crossmark contends that the superior court erred in affirming the Appellate Division’s holding that it was procedurally authorized to consider Strickland’s claim that the notice to controvert was invalid. It argues that the Appellate Division may not consider an argument raised before it for the first time, because Strickland waived it by failing to raise it before the ALJ. It also argues that res judicata prevented the Appellate Division from considering this argument, and that the Division “incorrectly reopened a case previously determined on the merits not to be compensable for a redeter-mination of compensability.” Additionally, Crossmark asserts that the Division’s authority to remand Strickland’s claim to the ALJ for further review was limited to the consideration of “newly discovered evidence,” which Strickland did not produce.

We disagree that the Appellate Division was not authorized to remand this claim to the ALJ to consider Strickland’s new contention. The Appellate Division’s jurisdiction exceeds that of an appellate court, and it has subject matter jurisdiction to reconsider all of the ALJ’s findings. Home Depot v. McCreary, 306 Ga. App. 805, 807 (1) (703 SE2d 392) (2010). Further, the legislature has given the Appellate Division statutory authority to remand a claim for further proceedings.

Upon review, the appellate division may remand to an administrative law judge in the trial division any case before it for the purpose of reconsideration and correction of apparent errors and omissions and issuance of a new award, with or without the taking of additional evidence, or for the purpose of taking additional evidence for consideration by the appellate division in rendering any decision or award in the case.

(Emphasis supplied.) OCGA § 34-9-103 (a). This statutory authority is broad, and authorized the Appellate Division in this case to remand the claim to the ALJ to consider whether Crossmark’s notice to controvert was valid. The decision was not res judicata and the Appellate Division did not “reopen” the case, which was not yet closed.

3. Crossmark contends that the Appellate Division erred in holding that a notice to controvert is invalid if an employer failed to pay all benefits owed when it filed the notice, and argues that we should overrule our precedent to the contrary.

An employer who wishes to terminate the payment of workers’ compensation benefits must do so in compliance with the law. An employer has the option to not begin paying benefits at all by filing a notice of its intention to controvert the claim within 21 days after learning of the alleged compensable injury. OCGA § 34-9-221 (d). If an employer begins paying benefits, however, it may still controvert the claim and has a longer period of time within which to do so, specifically within 60 days of the date the first payment of benefits was due. OCGA § 34-9-221 (h). “This provision affords an employer another opportunity to controvert a claim if the employer changes its mind about controverting a claim, provided that the employer also voluntarily pays compensation to the employee without an award.” Hamby, 224 Ga. App. at 117 (2); see also Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648-649 (1) (324 SE2d 194) (1984). If an employer has failed to pay all compensation due when it files a notice to controvert, the notice is invalid. Hamby, 224 Ga. App. at 119 (2).

In this case, Crossmark does not contest the fact that it failed to pay all the benefits due Strickland when it filed its notice to controvert. Instead, it argues that Hamby and Rayburn should be overruled, because OCGA § 34-9-221 does not specifically state that a notice to controvert is invalid unless the employer has paid “all compensation conceivably and theoretically due,” and because if the claim is later determined not to be compensable, then the payments were not actually due in the first place. But whether Strickland suffered a compensable injury is not the issue here. The issue is whether Crossmark followed the statutory requirements for its unilateral decision to stop paying benefits. Otherwise, an employer could base its compliance with the statute upon its assessment of the merits of its employee’s claim and ignore the payment requirements of the workers’ compensation statute without consequence if the claim is ultimately found not compensable. Further, while Cross-mark speculates that claimants could refuse to agree to an average weekly wage and gamble that they could show underpayment at a hearing later which would render a notice to controvert invalid, nothing in this record supports a finding that Strickland or any other claimant has tried to game the system in this way.

OCGA § 34-9-23 requires even-handed treatment of both employer and claimant. We act even-handedly when we apply the Act as it is written. Just as the claimant must meet the statute’s requirements in order to qualify for benefits, so must the employer adhere to the procedural requirements in order to controvert the claim. . . . [T]he appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or the heart-rending misfortune of the unlucky.

(Citation and punctuation omitted.) Hamby, 224 Ga. App. at 119 (2).

Crossmark had two options to withhold benefits, either by deciding quickly not to pay benefits at all and filing its notice to controvert within 21 days after it learned about the claim, or by paying benefits initially and filing its notice to controvert within 60 days after payments were first due. Either way, the statute provides a mechanism for a relatively speedy resolution of the employer’s unilateral decision to withhold benefits from its employee. If the employer does not comply with the statutory requirements for terminating benefits, then it must bear the consequences. This court’s decisions in Hamby and Rayburn are decades old, and if the legislature disagreed with them it had many opportunities to amend the Workers’ Compensation Act accordingly. We decline Crossmark’s invitation to overrule our holdings in Hamby and Rayburn, and thus find no merit in this enumeration of error.

4. Similarly, Crossmark contends the Appellate Division incorrectly upheld the ALJ’s assessment of attorney fees under OCGA § 34-9-108 (b) (2), arguing that its failure to comply with OCGA § 34-9-221 was fully reasonable because Strickland’s claim would not have been compensable under the merits.

The workers’ compensation statute sets out two grounds upon which a party may be entitled to attorney fees. OCGA § 34-9-108 (b) (1) provides that the ALJ may assess attorney fees against a party who brings, prosecutes, or defends proceedings without reasonable grounds, and (b) (2) provides that the ALJ may assess fees against the employer if it fails to comply with “any provision of Code Section 34-9-221, without reasonable grounds.”

In response to Strickland’s motion for the assessment of fees and expenses against Crossmark, the ALJ first found that Crossmark did not defend the claim without reasonable grounds, either initially or after remand, and thus Strickland was not entitled to attorney fees or expenses of litigation based on OCGA § 34-9-108 (b) (1), (4). The ALJ then found no reasonable grounds for Crossmark’s failure to comply with the provisions of OCGA § 34-9-221, which requires an employer to pay all benefits due before terminating them and filing a notice to controvert, found that Strickland had to hire an attorney to enforce her rights under the statute, and assessed attorney fees against Crossmark under OCGA § 34-9-108 (b) (2).

The Appellate Division affirmed the ALJ’s findings of fact and conclusions of law, finding unpersuasive Crossmark’s argument that the Court of Appeals misinterpreted OCGA § 34-9-221 (h) in Hamby and related cases and that its notice to controvert was valid. “In accordance with the law currently prevailing in the State of Georgia,” the Appellate Division held, the ALJ properly concluded that a notice to controvert is not valid unless the employer has paid all income benefits due up to that time. Because Crossmark had not paid all the income benefits due Strickland when it filed its notice to controvert, the notice was not valid and thus the company could not contest the initial compensability of Strickland’s claim absent newly-discovered evidence or a subsequent change in condition, which it did not present. The Appellate Division concluded that the ALJ did not err in assessing attorney fees against Crossmark because the company had no reasonable grounds for failing to comply with OCGA § 34-9-221.

“Whether noncompliance with OCGA § 34-9-221 is without reasonable grounds is an issue of fact to be determined by the [Appellate Division], and its decision will be affirmed by this court if there is any evidence to support it.” Carr v. A.P. & Harry Jones Logging, 198 Ga. App. 698, 699 (1) (402 SE2d 538) (1991). While Crossmark argues that its failure to pay all the income benefits due to Strickland when it filed its notice to controvert was reasonable, because Strickland’s injury was not compensable on the merits and therefore the benefits were not owed anyway, it does not dispute that it failed to pay Strickland any income benefits for the first week she was not working or that the income benefits it did pay were short $100 per week.

Decided June 27, 2011

Murphy & Sibley, Phillip A. Sibley, Adam J. Hand, for appellants.

Melissa M. Peavy, for appellee.

“Just as the claimant must meet the statute’s requirements to obtain benefits, the employer must do so to controvert the claim.” S&B Engineers &c. V. Bolden, 304 Ga. App. 534, 537 (1) (697 SE2d 260) (2010) (Appellate Division did not err in finding that noncompliance with OCGA § 34-9-221 was without reasonable grounds and awarding benefits). In the present case, the Appellate Division affirmed the ALJ’s finding that no reasonable grounds existed for Crossmark’s failure to comply with OCGA § 34-9-221 (i). Crossmark “did not offer any explanation for its noncompliance with [OCGA] § 34-9-221. . . . Consequently, the evidence supports the Appellate Division’s finding that such noncompliance was without reasonable grounds.” Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 139 (2) (473 SE2d 166) (1996). And because “there is evidence in the record to support this finding, the superior court was required to affirm it.” Carr, 198 Ga. App. at 699 (1). Accordingly, we find this enumeration to be without merit.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: Smith, Presiding Judge.

text:
    A11A0448.
    D.C. MICRO DEVELOPMENT, INC. et al. v. BRILEY.
    (714 SE2d 11)
   Smith, Presiding Judge.

This is the second appearance of this case before us. In D.C. Micro Dev. v. Lange, 259 Ga. App. 611 (578 SE2d 251) (2003) (“D.C. i”), we affirmed the trial court’s appointment of a receiver over the corporate defendants, D.C. Micro Development and TopDog Software, Inc. Id. at 613-614 (2). In this appeal, the corporate defendants and their principal, David Cecil, (collectively, “D.C.”) challenge the trial court’s order setting compensation for the appointed receiver, Brandyn Briley. We find that the trial court did not abuse its discretion and did not err in any of the particulars urged by D.C. We therefore affirm.

In D.C. I, we concluded that the trial court did not abuse its discretion in appointing a receiver because the evidence showed “possible financial improprieties” by D.C., including attempts to circumvent the trial court’s earlier order instructing D.C. to preserve and account for its assets and “the possibility that the corporations’ assets were being diverted and that assets might be dissipated before the case could be resolved.” (Punctuation omitted.) Id. at 613 (2). By order of March 15, 2002, the trial court designated the powers of the receiver as auditing and reconciling the accounts of the corporations, including assuming control of their day-to-day operations, processing sales and licensing, and establishing an operating account to manage any monies received by the corporations.

In 2008, the trial court entered an order seeking a status update and then an order setting a “Hearing on Notice of Intent to Liquidate Assets Held by Receiver.” At that hearing, the trial court received evidence showing the work performed by Briley and the amounts billed, and questioned Briley at length and in detail regarding her qualifications, the work she performed as receiver, the hourly rates billed by her and her employees, and the value of the assets she was appointed to oversee. Briley sought approximately $178,000 in fees, contending that the large amount was justified by D.C.’s continuing attempts to conceal assets and transfer them out of state. D.C. appeared at the hearing and argued that the receiver should be awarded no fees whatsoever on the basis of her failure to comply with a court order to produce documentation of her fees to the parties and mediator in an earlier mediation. Appellant Cecil appeared at the hearing and testified, and also was questioned at some length by the trial court.

After considering all this evidence, the trial court entered an order awarding $125,000 in fees and costs, $62,500 to be paid by the plaintiff, who is not a party to this appeal, and $62,500 to be paid by the defendants jointly and severally. It is from this order that D.C. appeals.

We first note that “[a] determination of the questions as to the nature of the services and the excessiveness and apportionment of fees involves a consideration of the evidence. These matters rest largely in the discretion of the trial court.” (Citations omitted.) First Fed. Sav. & Loan Assn. v. Stephens, 226 Ga. 867, 868 (178 SE2d 170) (1970). It is well settled that establishing the amount of fees awarded to a receiver “is left to the discretion of the trial judge, and that his action in such matters will not be disturbed unless a manifest abuse of such discretion is shown.” Edwards v. United Food Brokers, 196 Ga. 241, 251 (2) (26 SE2d 348) (1943). D.C.’s assertion that a “plain legal error” standard of review applies here is, therefore, without merit.

1. D.C. first contends that the receiver should have provided documentation and invoices to the parties “prior to March 26, 2009 and the April 24, 2009 hearing,” as ordered by the court. It contends the failure to do so prejudiced its ability to cross-examine the receiver as well as its right to due process and a proper hearing, and it made the same contention below. But, as the trial court noted,

I don’t know that. . . you’re entitled to cross-examine her, just like I don’t know that anybody was entitled to take her deposition, because she’s not a witness, she’s not a party. She really stands in a different stance. If she were a party in this case, I would approach it differently, but she is not. She is an officer of this Court, put in place by my predecessor.

The trial court is correct that the receiver is neither a party nor a witness. See OCGA § 9-8-8; Edwards, supra, 196 Ga. at 250 (2) (receiver is trial court’s “officer or agent, deriving his functions only from that source”); see Northeast Factor &c. Co. v. Mtg. Investments, 107 Ga. App. 705, 710 (1) (c) (131 SE2d 221) (1963) (“Like the judge, the receiver is an officer of the court. [Cits.]”). And, given the trial court’s broad discretion to set a receiver’s fees, supra, to control discovery and sanctions, Phillips v. Selecto Scientific, 308 Ga. App. 412, 414 (2) (707 SE2d 615) (2011), and to control its courtroom, Bulgin v. Ga. Dept. of Transp., 292 Ga. App. 1, 4 (5) (663 SE2d 730) (2008), whether a party is allowed to cross-examine a receiver would seem to fall entirely within the trial court’s discretion.

Indeed, OCGA § 9-8-13, governing the award of receivers’ fees, makes no provision for examination of the receiver by a party or even for a hearing. In its very cursory argument, D.C. provides no legal authority to support its contentions, simply rearguing the contentions it made below, as well as contentions already decided in D.C. I.

It is an appellant’s responsibility to demonstrate error from the record and support its contentions with citations to authority. Court of Appeals Rule 25 (c) (2); Mize v. Regions Bank, 265 Ga. App. 635, 636 (1) (595 SE2d 324) (2004). Under these circumstances, appellant has failed to show error in the trial court’s consideration of the receiver’s invoices.

Decided June 28, 2011.

James L. Kraemer, for appellants.

Shawn M. Winterich, for appellee.

In any event, at the hearing the trial court questioned the receiver sharply regarding her failure to provide itemized invoices at mediation, as the court had ordered. During this questioning, it became apparent that the receiver’s testimony and that of D.C.’s counsel as to what had transpired at mediation and the reasons for the receiver’s failure to present the invoices were diametrically opposed. It was within the trial court’s discretion to resolve that dispute in favor of the receiver.

2. In its two remaining enumerations of error, D.C. contends that the receiver’s billing documents were unsubstantiated and insufficiently detailed to support an award. But once again, in less than two pages of argument, D.C. simply repeats and restates the factual contentions it made below, without any citation to legal authority other than a general citation to OCGA § 9-8-13. And while D.C. contends — in one unsupported sentence — that the trial court failed to apply the provisions of the statute, OCGA § 9-8-13 (c) provides that “[i]n all cases, the presiding judge or other competent tribunal shall allow such compensation ... to the receiver or receivers ... as their services are reasonably worth.” Moreover, D.C. “has failed to rebut the presumption that the court and receiver have faithfully discharged their duties. [Cit.]” Womack v. State of Ga., 270 Ga. 56, 59 (4) (507 SE2d 425) (1998) (citing Northeast Factor, supra, 107 Ga. App. at 710 (1) (c)). The trial court did not abuse its discretion in awarding receiver’s fees in an amount less than that requested but more than the amount of zero advocated by D.C.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       The underlying action was dismissed.


author: Blackwell, Judge.

text:
    A11A0702.
    TEAL v. THURMOND et al.
    (713 SE2d 436)
   Blackwell, Judge.

Host International, Inc. terminated its employment of Sonja Teal, ostensibly because she violated its policies and rules. Teal applied for unemployment compensation benefits, but the Board of Review of the Department of Labor concluded that she was disqualified for benefits, based on its finding that she was, in fact, terminated for violating the policies and rules of her employer. Teal sought judicial review, but the superior court upheld the decision of the Board. We then granted her application for discretionary review. Based on our review of the record, we conclude that Host failed in the administrative proceedings to prove by competent evidence that Teal was, in fact, terminated for violating its policies and rules, and for this reason, the decision of the Board disqualifying her for benefits cannot be sustained. Accordingly, we reverse the judgment below.

An employee is disqualified for unemployment compensation benefits when her employment is terminated for “failure to obey orders, rules, or instructions,” OCGA § 34-8-194 (2) (A), but an employer claiming that a former employee is disqualified bears the burden of proving the grounds for disqualification by a preponderance of the evidence. See Ga.-Pacific Corp. v. Ivey, 250 Ga. App. 181, 182-183 (1) (549 SE2d 471) (2001); Millen v. Caldwell, 253 Ga. 112, 113 (317 SE2d 818) (1984). When a court reviews a decision of the Board that an employee is disqualified, the factual findings of the Board are conclusive to the extent that they are supported by competent evidence, see OCGA § 34-8-223 (b), and the court must affirm the decision of the Board if it is supported by any competent evidence. See Miller Brewing Co. v. Carlson, 162 Ga. App. 94, 95 (290 SE2d 200) (1982) (evidence must have probative value). It is settled, however, that hearsay is not competent evidence and “is without probative value to establish any fact.” Finch v. Caldwell, 155 Ga. App. 813, 815 (273 SE2d 216) (1980).

The record indicates that Teal was employed by Host as a server and bartender at a restaurant in the Atlanta airport. In August 2009, her employment with Host was terminated after Host accounting personnel determined that Teal failed to account for more than $50 that she collected during a bartending shift, which would amount to a violation of Host’s cash-handling policy. She had been warned before about the cash-handling policy and about earlier failures to properly account for cash collections, so we have little doubt that, if Host had proven that she, in fact, failed to account for more than $50 in August 2009, the Board properly might have concluded that she was disqualified for benefits. But the only evidence of this fact adduced at the administrative hearing was hearsay.

The only witness to appear at the hearing for Host was a human resources generalist, who apparently had no personal knowledge of any of the facts surrounding the incident that led to the termination of Teal. According to this witness, the cash-handling policy adopted by Host specifies that an employee may be terminated if she fails to properly account for more than $50. The witness understood that some accounting personnel had reported a discrepancy between the amount of cash that Teal received during a bartending shift and the amount she later turned over to Host, and the witness understood that the accounting personnel notified Teal’s manager, who fired Teal. But when asked about the details of the discrepancy and how it was discovered, the witness said that “I’m by far not the expert on cash handling. I’ve never run a register, so I don’t even know if I can answer your question.” The witness also said: “I don’t. . . even pretend to understand how that accounting part worked. Uh, I really don’t know.” Testimony that someone else reported a discrepancy may be competent to prove that the other person made the report, but when offered for the truth of the matter asserted — that the report was true and that a discrepancy, in fact, occurred — it is the very definition of hearsay. See Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 738 (1) (458 SE2d 711) (1995) (billing statements constitute nothing more than hearsay without testimony of a witness with personal knowledge of the services purportedly rendered and reported therein); Johnson v. Parnes, 163 Ga. App. 404, 405 (294 SE2d 624) (1982) (witness testimony that “somebody reported” a fact to her is hearsay and has no probative value to establish the fact); Harris v. Collins, 149 Ga. App. 638, 640 (4) (255 SE2d 107) (1979) (writings made by a person not available for cross-examination are clearly hearsay). That is precisely the kind of evidence offered by Host in the administrative proceedings below. And hearsay is not competent to prove a violation of an employer’s policies or rules sufficient to disqualify the employee for benefits. See Davane v. Thurmond, 300 Ga. App. 474, 476 (685 SE2d 446) (2009); Finch, 155 Ga. App. at 815.

Decided June 28, 2011.

Kimberly Charles, David A. Webster, for appellant.

Thurbert E. Baker, Attorney General, Kimberly B. Lewis, Assistant Attorney General, for appellee.

There is nothing else in the administrative record that will sustain a finding that Teal, in fact, failed to account for $50 in violation of Host’s policies and rules. Teal testified, and although she admitted that she was told of a $51 discrepancy, she never admitted that there was one. In fact, she explained that because bartenders make a blind drop of their cash, she had no way of knowing whether the reported discrepancy, in fact, occurred. And Host’s witness testified that, “as far as I know,” it should be a blind drop. Although there are some documents in the record — including something that looks like a cash reconciliation audit for a cashier — these documents were not identified, authenticated, or even discussed at the hearing, and in any event, the cash reconciliation audit document is not legible at the lines where it purports to state the amounts of cash expected and reported. Accordingly, the decision of the Board cannot be sustained. Because the superior court below should have overturned the decision of the Board, we reverse the judgment below.

Judgment reversed.

Barnes, P. J., and Adams, J., concur.

       In a split decision, the Board reversed the decision of an administrative hearing officer, who had found that Teal was entitled to benefits. The administrative hearing officer concluded, as we do today, that Host failed to come forward with competent evidence that Teal was fired for violating company policies and rules because it only adduced hearsay evidence of that fact.

       We note that Host made no appearance and filed no brief in the superior court or in this Court, despite our order directing it to do so.

       We have said before that, to carry this burden, an employer must show that the termination of the former employee “was caused by the deliberate, conscious fault of the [former employee].” Davane v. Thurmond, 300 Ga. App. 474, 476 (685 SE2d 446) (2009) (citation and punctuation omitted).

       When asked by the hearing officer why the assistant store manager, “who actually had knowledge of. . . how the . . . overage occurred,” was not available to testify, Host’s witness responded that she did not ask him to be at the hearing. The witness later said that she wanted the store manager, who had personal knowledge of the relevant events, to be present for the hearing, but he apparently was not available.

       Moreover, as explained in Neal v. Augusta-Richmond County Personnel Bd., 304 Ga. App. 115, 117-118 (1) (695 SE2d 318) (2010), even in an administrative proceeding, a party is entitled to confront and cross-examine someone involved in the events surrounding his termination.


author: McFadden, Judge.

text:
    A11A0719.
    AMERICAN HOME SERVICES, INC. v. A FAST SIGN COMPANY, INC.
    (713 SE2d 396)
   McFadden, Judge.

This case arises out of class action litigation involving the Telephone Consumer Protection Act of 1991, 47 USC § 227 (“TCPA”). In October 2003, A Fast Sign Company, Inc. d/b/a Fast-signs (“Fastsigns”) filed a class action complaint against American Home Services, Inc. (“AHS”), alleging that AHS had violated the TCPA by sending unsolicited facsimile advertisements. The trial court certified the requested class, then held a bench trial as to liability and damages on the class claims. The trial court ultimately determined that AHS had sent 306,000 unsolicited advertisements to fax machines. Based on that finding, it entered judgment against AHS for $459 million. AHS appeals, raising numerous claims of error. Because the trial court erroneously applied the TCPA and entered judgment based on the number of facsimile advertisements sent, rather than received, we vacate the judgment and remand for further proceedings.

1. AHS is a siding, window, and gutter installation company that operated for approximately two years from 2002 to 2004. During its operations, it explored various ways in which to advertise, including through facsimile transmissions. Between 2002 and 2003, AHS entered into five contracts with a Texas company known as Sunbelt Communications and Marketing. Through those contracts, Sunbelt agreed to send over 300,000 facsimile advertisements on behalf of AHS to fax machines in the Atlanta area.

At some point during this period, Fastsigns received an AHS fax advertisement. Because these types of “junk faxes” were tying up its fax machine, Fastsigns sued AHS for a TCPA violation and sought to bring its claims as a class action on behalf of itself and all other similarly situated persons. The trial court granted Fastsigns’s class certification request, certifying a class consisting of, with certain specified exclusions:

All persons, natural or otherwise, throughout the State of Georgia to whom [AHS] sent or caused to be sent, from January 1, 2002, to the present, one or more facsimile transmissions with content substantially similar to that contained in the attached Exhibit A.

(Footnote omitted.) We affirmed the class certification ruling, American Home Svcs. v. A Fast Sign Co., 287 Ga. App. 161 (651 SE2d 119) (2007), and the trial court addressed the merits of the TCPA allegations on remand.

The TCPA prohibits an individual or entity from using “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 USC § 227 (b) (1) (C). The statute exempts certain transmissions, such as faxes to a recipient with whom the sender has an established business relationship. 47 USC § 227 (b) (1) (C) (i). Generally, however, unsolicited fax advertisements are forbidden, and a party that sends such faxes may be subject to governmental enforcement and forfeiture proceedings. See 47 USC § 227 (h).

A TCPA violation may also give rise to a private cause of action. Pursuant to 47 USC § 227 (b) (3):

[a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State — (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions.

As found by our Supreme Court and numerous other courts, this private right of action rests in persons or entities that receive unsolicited fax advertisements. See Carnett’s, Inc. v. Hammond, 279 Ga. 125, 127 (3) (610 SE2d 529) (2005) (“The TCPA is violated only if a plaintiff receives an ‘unsolicited’ fax.”); see also Centerline Equip. Corp. v. Banner Personnel Svc., 2009 U. S. Dist. LEXIS 48092, at *5 (N.D. Ill. 2009); Levitt v. Fax.com, 2007 U. S. Dist. LEXIS 83143, at *7 (D. Md. 2007); Murphey v. Lanier, 997 FSupp. 1348, 1352 (S.D. Cal. 1998), aff'd, 204 F3d 911 (2000); All American Painting v. Financial Solutions &c., 315 SW3d 719, 722 (Mo. 2010). Under the statute, such recipients may recover their actual damages or $500 in statutory damages, whichever is greater. 47 USC § 227 (b) (3) (B). A trial court may also triple these damages if it “finds that the defendant willfully or knowingly violated” the statute. 47 USC § 227 (b) (3).

In this case, the trial court concluded that AHS had sent 306,000 unsolicited faxes to fax machines, was liable to the class for 306,000 violations, and had wilfully violated the statute. It thus awarded the class treble damages in the amount of $1,500 times the 306,000 violations, or $459 million. This appeal followed.

Even assuming — without deciding — that the evidence supports a finding that AHS sent 306,000 faxes, the trial court’s judgment is fundamentally flawed. In awarding $459 million to the class, the trial court apparently adopted class counsel’s argument that the class simply needed to “show that a fax was sent.” Again, however, our Supreme Court has concluded that only plaintiffs who “receive[ ] an ‘unsolicited’ fax” may recover in a private TCPA action. Carnett’s, Inc., supra. We recognize that certain foreign courts do not require receipt for recovery. See, e.g., Hinman v. M&M Rental Center, 596 FSupp.2d 1152, 1158-1159 (N.D. Ill. 2009). But other courts — including our Supreme Court — do, and we cannot ignore this requirement. Moreover, the requirement makes sense. The statute’s private cause of action authorizes a damages recovery to “compensate the plaintiff for the annoyance, the conversion of paper and ink and the effective preemption of his fax machine during the intervals when it is receiving advertisement transmissions.” Klein v. Vision Lab Telecommunications, 399 FSupp.2d 528, 540 (S.D. N.Y. 2005). A person or entity that does not receive an unsolicited fax has no need for such recovery.

Decided May 11, 2011

Reconsideration denied June 29, 2011

Taylor, Fell, Harper, Lumsden & Hess, Otto F. Fell III, Celeste McCollough, for appellant.

Weissman, Nowack, Curry & Wilco, Ned Blumenthal, Roy E. Barnes, Marc B. Hershovitz, Michael K. Jablonski, for appellee.

As class counsel conceded during closing argument, “[t] here's a difference between sent and received.” The trial court recognized this issue in its class certification order, noting that “[n]o person shall claim under this class unless and until he executes an affidavit under oath and under penalty of perjury that states he received one or more facsimile transmissions” from AHS. Nevertheless, it awarded the class enormous damages based on the number of faxes sent.

Following a bench trial, our standard of review as to “disputed material facts is the clearly erroneous test.” Homelife Communities Group v. Rosebud Park, LLC, 280 Ga. App. 120 (633 SE2d 423) (2006). But when a question of law is at issue, we owe no deference to the trial court and apply a “plain legal error” standard of review. Id. And “[w]here it is apparent that a trial court’s judgment rests on an erroneous legal theory, an appellate court cannot affirm.” (Citation and punctuation omitted.) Smith v. Carter, 305 Ga. App. 479, 481 (2) (699 SE2d 796) (2010).

The trial court incorrectly applied the TCPA and awarded damages based on the number of facsimile advertisements sent, rather than received. The judgment, therefore, cannot stand. Accordingly, we vacate the judgment and remand so that the trial court can properly consider the evidence presented at the bench trial in accordance with this opinion and the TCPA. See Smith, supra at 482; Homelife Communities, supra at 123. In so doing, we express no opinion as to the sufficiency of the evidence presented or the propriety of the trial court’s prior factual findings. The trial court must consider the evidence anew, and we will not make any rulings that, under the circumstances of this case, might be viewed as advisory. See Huff v. Harpagon Co., 286 Ga. 809, 811 (2) (692 SE2d 336) (2010) (Georgia appellate courts are not authorized to render advisory opinions).

2. Given our decision in Division 1, we decline to address AHS’s remaining arguments and claims of error.

Judgment vacated and case remanded.

Phipps, P J., and Andrews, J., concur.

       Both parties have filed motions for leave to file a supplemental brief regarding new authority. Those motions are hereby granted. The Court has read and considered the supplemental briefs and authority cited therein.


text:
    A11A0725, A11A0726.
    CROUCH v. BENT TREE COMMUNITY, INC.; and vice versa.
    (713 SE2d 402)
   McFadden, Judge.

These cross-appeals arise from the trial court’s summary judgment rulings based on restrictive covenants and rules governing the Bent Tree Community in Jasper, Georgia. Because the trial court correctly refused to consider an affidavit that set forth mere legal conclusions and simply enforced the clear and unambiguous terms of the covenants, we affirm the trial court’s summary judgment rulings. But because a trial court may not grant attorney fees pursuant to OCGA § 13-6-11 on summary judgment, we reverse that award.

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

(Citation omitted.) Wyndham Lakes Homeowners Assn. v. Gray, 303 Ga. App. 45 (692 SE2d 704) (2010).

So viewed, the evidence shows that Matthew Crouch purchased a lakefront home in the Bent Tree Community. Prior to the purchase, he received and reviewed the community’s covenants and rules. He subsequently began storing a pontoon boat at the lake, near the water’s edge. Bent Tree notified Crouch that he was violating the community’s covenants and rules against storing boats in green belt areas and that he would be fined if he failed to comply with the boat storage regulations. Approximately one week later, Crouch was notified by Bent Tree that he would be fined $25 per day for his continued violations and that he could request a hearing before the Board of Directors. Pursuant to his request, two hearings were held, after which the Board concluded that Crouch had continued to violate Bent Tree’s covenants regarding the storage of his boat in a green belt area.

Crouch filed a complaint in superior court, seeking a declaratory judgment that the Bent Tree covenants are vague and unenforceable, and he filed an amended complaint requesting that his violation be declared a casual encroachment, that he be granted a license for the encroachment, and that the fines imposed against him be declared void. Bent Tree filed a counterclaim, seeking a declaratory judgment that the covenants are not vague and are enforceable, judgment for the amount of fines accrued and an award of attorney fees. The parties filed opposing motions for summary judgment. After a hearing, the trial court denied summary judgment to Crouch and granted summary judgment to Bent Tree, awarding Bent Tree the accrued fines and attorney fees incurred in pursuing its counterclaim. Crouch appeals from the summary judgment rulings, and Bent Tree cross-appeals from the denial of attorney fees incurred in defending against Crouch’s complaint.

Case No. A11A0725

1. Crouch contends that the trial court erred in ruling that Bent Tree’s restrictive covenants prohibit the storage of boats in the community’s common green belt areas. The contention is without merit.

Restrictive covenants on real estate run with the title to the land and are specialized contracts that inure to the benefit of all property owners affected. The construction, interpretation and legal effect of such a contract is an issue of law to which the appellate court applies the plain legal error standard of review.

(Citations and punctuation omitted.) Godley Park Homeowners Assn. v. Bowen, 286 Ga. App. 21 (649 SE2d 308) (2007). In construing a restrictive covenant, the trial court “must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning.” Id. Accordingly, we determine de novo whether the trial court correctly ruled that Bent Tree’s restrictive covenants prohibit the storage of boats on the green belt areas. See Crawford v. Dammann, 277 Ga. App. 442, 444 (1) (626 SE2d 632) (2006).

Article IX, Section 3 of Bent Tree’s Declaration of Covenants, Conditions and Restrictions provides that every property owner “shall comply with the Declaration and rules and regulations of [Bent Tree] adopted pursuant thereto, and any lack of compliance shall entitle [Bent Tree] ... to take action to enforce the terms of the Declaration or [the] rules and regulations.” With regard to boat storage, Article V, Section 20 (n) of the Declaration states that no

boat . . . shall be permitted on any lot except in an enclosed garage or such other location approved by the [Architectural Committee] if screened so as not to be visible from any other lot. An exception shall be any lake lot owner may place a canoe, jon boat and other similar size boat on the lot near the water’s edge and not on the green belt area.

(Emphasis supplied.)

The Bent Tree rules and regulations further provide that lakefront property owners may store their boats in accordance with the restrictive covenant cited above, and that “[bloats must be located on the owner’s property and not on the Green Belt.” (Emphasis supplied.) The green belt areas are defined in pertinent part as Bent Tree “property, typically located behind houses, around the lake, between the shoreline and the property of individual owners. . . . The green belt area is for all members to use and enjoy and must be retained and maintained for this purpose.”

Contrary to Crouch’s claim, the clear and unambiguous terms of the covenants and rules prohibit the storage of boats on the community’s green belt areas. Accordingly, the trial court did not err in simply enforcing the covenants and rules according to their plain terms.

2. Crouch argues that the trial court erred in failing to rule that Bent Tree had not considered his request for a license to continue his encroachment as required by the terms of Article V of the Declaration. But Article V does not authorize Bent Tree to issue such a license to Crouch.

According to Article Y Section 1, the primary purpose of that article, is “to protect and preserve property values in Bent Tree by maintaining architectural and aesthetic harmony and compatibility among the lots and the structures and improvements on the lots in Bent Tree.” To that end, Article Y Section 2 provides that the Architectural Committee shall have exclusive jurisdiction over

(a) all original construction of all dwellings and other structures and improvements ... on any lot or portion of the Common Properties; (b) all other exterior or visible modifications, additions, or alterations on lots or portions of the Common Properties . . . ; and (c) all maintenance, repair or replacement of exterior portions of dwellings or other improvements on lots or the Common Properties.

Article Y Section 3 further states that the Architectural Committee may consider requests for approval of improvements to lots or common areas, but that no property owner “may commence, make or maintain any exterior alteration, improvement, or construction to a lot or the Common Properties, without first obtaining the written approval of the [Architectural Committee].”

It is apparent that Crouch’s placement of a pontoon boat on the green belt area does not constitute any sort of architectural construction, maintenance or repair that would fall under the exclusive jurisdiction of the Architectural Committee, as set forth in Article V Moreover, even if storage of a boat could somehow be deemed an alteration, improvement or construction on a lot or common property, Crouch never sought approval for such storage prior to encroaching on the green belt. Thus, under the unambiguous language of the Declaration, Bent Tree was not authorized to give him a license, and we therefore affirm the judgment of the trial court. See Black Island Homeowners Assn. v. Marra, 274 Ga. App. 265, 266 (1) (617 SE2d 148) (2005).

3. Crouch claims that the trial court erred in failing to consider the affidavit of an attorney, containing legal conclusions about the covenants, that Crouch filed in support of his motion for summary judgment. However, “affidavits containing mere legal conclusions and allegations present no issues of fact on a motion for summary judgment.” Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 879-880 (1) (b) (354 SE2d 204) (1987). Indeed, such legal conclusions “are to be disregarded in considering the affidavit in connection with the motion for summary judgment.” (Citation and punctuation omitted.) Consumer Solutions Financial Svcs. v. Heritage Bank, 300 Ga. App. 272, 275 (1) (684 SE2d 682) (2009). Accordingly, the trial court did not err in refusing to consider the affidavit setting forth mere legal conclusions.

4. Crouch contends that the trial court erred in granting summary judgment to Bent Tree on its counterclaim because there are genuine issues of material fact as to whether he received notice of the green belt violation, whether the rules and covenants put him on notice of the green belt policy and whether Bent Tree enforced the green belt policy in an arbitrary manner.

However, as recited above, the evidence shows that the unambiguous terms of the covenants and rules prohibit storage of boats on the green belt areas, that Crouch was given and reviewed those covenants and rules prior to purchasing his home, that he violated the prohibition by storing his pontoon boat on a green belt area, that he was twice notified in writing of the violations and that two Board hearings on the matter were held pursuant to his requests. Thus, contrary to his claims, there are no genuine issues of material fact as to whether the rules put him on notice of the policy and whether he was properly notified of his violations.

As for his claim that there is a genuine issue as to whether Bent Tree enforced the green belt policy in an arbitrary manner, Crouch has cited no evidence in support of this claim. Because there are no genuine issues of material fact, the trial court correctly granted summary judgment to Bent Tree. OCGA § 9-11-56.

Decided June 10, 2011

Reconsideration denied June 29, 2011.

5. Crouch enumerates that the trial court erred in enjoining him from storing his boat on Bent Tree’s common properties and in enforcing the fines assessed by Bent Tree. He does not set forth additional arguments in support of this enumeration, but relies on his arguments in support of his first two enumerations of error. As discussed above in Divisions 1 and 2, those enumerations are without merit.

6. Crouch asserts that the trial court erred in awarding attorney fees and expenses pursuant to OCGA § 13-6-11 on summary judgment. We agree. As the Supreme Court of Georgia has explained, “because both the liability for and amount of attorney fees pursuant to OCGA § 13-6-11 are [issues] solely for the jury’s determination, a trial court is not authorized to grant summary judgment in favor of a claimant therefor. [Cits.]” Covington Square Assoc. v. Ingles Markets, 287 Ga. 445, 446 (696 SE2d 649) (2010). Although a trial court may grant attorney fees pursuant to OCGA § 13-6-11 when it sits as the trier of fact, “it is not a trier of fact on a motion for summary judgment. [Cits.]” Id. at 448. Accordingly, we reverse the trial court’s summary judgment in favor of Bent Tree for attorney fees and costs under OCGA § 13-6-11. See Tyler v. Thompson, 308 Ga. App. 221, 222 (1) (707 SE2d 137) (2011).

Case No. A11A0726

7. Bent Tree contends that, pursuant to Article V, Section 13 of the Declaration, the trial court should have awarded it attorney fees incurred in defending against Crouch’s complaint. However, by its plain terms, Article V, Section 13 allows for the recovery of attorney fees only when Bent Tree has had to enforce the covenant against nonconforming “construction, alteration or other work done in violation of this articled]” Here, the only violation is the improper placement of a boat on the green belt; there has been no allegation of nonconforming construction, alteration or other work. Accordingly, the trial court did not err in failing to award attorney fees pursuant to Article V, Section 13.

Judgment affirmed in part and reversed in part in Case No. A11A0725. Judgment affirmed in Case No. A11A0726.

Phipps, P. J., and Andrews, J., concur.

Shapiro, Fussell, Wedge & Martin, George M. Kent, Jr., Tracy A. Marion, for appellant.

Carlock, Copeland & Stair, Eric J. Rogers, Dennis G. Lovell, Jr., for appellee.


text:
    A11A0775.
    THE STATE v. HORSLEY et al.
    (714 SE2d 1)
   McFadden, Judge.

Otis Horsley and Jonathan O’Toole were jointly indicted for one count of terroristic threats, and Horsley was also indicted for another count of terroristic threats and a count of criminal defamation. The state later nolle prossed the criminal defamation count, and the trial court sustained a general demurrer as to the two counts of terroristic threats. The state appeals. Because the indictment alleges the terroristic threats offenses in the applicable statutory language and the defendants would be guilty of those crimes if the alleged facts are taken as true, the trial court erred in sustaining the general demurrer.

1. Horsley and O’Toole contend that this case is within the exclusive jurisdiction of, and should be transferred to, the Supreme Court of Georgia because it involves a challenge to the constitutionality of the terroristic threats statute. While it is true that Horsley and O’Toole raised a challenge to the constitutionality of the statute, the trial court did not distinctly rule on that challenge. The Supreme Court does not have jurisdiction where an attack on the constitutionality of a statute was not ruled on by the trial court. Senase v. State, 258 Ga. 592 (372 SE2d 813) (1988); Colton v. State, 297 Ga. App. 795, 798 (678 SE2d 521) (2009). Accordingly, jurisdiction is proper in this court.

2. The state asserts that the indictment was sufficient to withstand a general demurrer. A general demurrer challenges the sufficiency of the substance of an indictment. Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993).

An indictment shall be deemed sufficiently technical and correct to withstand a general demurrer if it states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury. Moreover, if an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true, then the indictment is sufficient to withstand a general demurrer; however, if an accused can admit to all of the facts charged in the indictment and still be innocent of a crime, the indictment is insufficient and is subject to a general demurrer.

(Citations and punctuation omitted.) State v. Corhen, 306 Ga. App. 495, 497 (700 SE2d 912) (2010).

In this case, the first count of the indictment charges Horsley

with the offense of TERRORISTIC THREATS O.C.G.A. § 16-11-37, for the said accused, in the County of Fulton and State of Georgia, on the 25th day of February, 2010, DID THREATEN TO COMMIT A CRIME OF VIOLENCE, TO WIT: MURDER WITH THE PURPOSE OF TERRORIZING SIR ELTON HERCULES JOHN.

In virtually identical language, the second count of the indictment charges both Horsley and O’Toole

with the offense of TERRORISTIC THREATS O.C.G.A. § 16-11-37, for the said accused, in the County of Fulton and State of Georgia, on the 26th day of February, 2010, DID THREATEN TO COMMIT A CRIME OF VIOLENCE, TO WIT: MURDER, WITH THE PURPOSE OF TERRORIZING SIR ELTON HERCULES JOHN.

The indictment not only cites the applicable Code section, but clearly states the offenses in the terms and language of the terror-istic threats statute, which provides that a “person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence . . . with the purpose of terrorizing another!.]” OCGA § 16-11-37 (a). Moreover, Horsley and O’Toole would not be innocent if they admitted all the facts charged in the indictment, and instead “would be guilty of the crime[s] charged if the facts as alleged in the count[s] are taken as true.” (Citations omitted.) Corhen, supra at 501 (4).

In sustaining the general demurrer, the trial court mistakenly relied on matters not appearing on the face of the indictment, concluding that a placard stating that the alleged victim must die does not constitute a direct threat of violence. However, a

demurrer to an indictment does not reach matters not appearing on its face. [Cit.] A demurrer may properly attack only defects which appear on the face of the indictment and a demurrer which seeks to add facts not so apparent but supply extrinsic matters must fail as a speaking demurrer. [Cits.]

Decided June 3, 2011

Reconsideration denied June 29, 2011.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellant.

Kenya B. Herring, Alixe E. Steinmetz, for appellees.

State v. Holmes, 142 Ga. App. 847, 848 (237 SE2d 406) (1977). The trial court’s consideration of facts purportedly underlying the indictment

goes to the very heart of the issue to be considered by the jury. It is in effect an attempt to convert the hearing on the demurrer into what, in civil practice, would be termed a motion for summary judgment. See State v. Hooper, 132 Ga. App. 413 (208 SE2d 161) [(1974)], where we noted there was no authority for such practice.

Id. at 849. Accordingly, since the indictment tracks the language of the applicable statute and plainly states the allegations so that the nature of the charges may easily be understood by a jury, the trial court erred in sustaining the demurrer.

Judgment reversed.

Phipps, P. J., and Andrews, J., concur.


author: Dillard, Judge.

text:
    A11A0360.
    ROSS v. THE STATE.
    (713 SE2d 438)
   Dillard, Judge.

After a bench trial before the Douglas County Superior Court, Matthew Ross III was found guilty of possession of cocaine, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. We affirmed those convictions in Ross v. State, and Ross now appeals the trial court’s denial of his motion to enter a valid judgment of sentence. For the reasons set forth infra, we dismiss Ross’s appeal.

On April 25, 2006, Ross moved pro se for the trial court to vacate and correct his sentence on the basis that it was void. Specifically, Ross argued that because the State allegedly proved his prior felony convictions to support his conviction on the charge of being a convicted felon in possession of a firearm, it could not then use those same prior convictions to sentence him as a recidivist. The trial court denied this motion on May 1, 2006, and according to Ross, he filed a timely notice of appeal from this order. However, because there was no evidence in the record that Ross filed a timely notice of appeal, this Court found that it had no jurisdiction, and, in an October 20, 2009 order (Case No. A09A2044), we granted the State’s motion to dismiss the appeal.

On February 26, 2010, Ross filed a “Motion to Enter Valid Judgement [sic] of Conviction and Sentence” with the trial court, in which he, once again, argued that his sentence was void. Finding that this motion was “substantially the same motion” that Ross filed in April 2006 (from which he failed to timely appeal), the trial court denied it. Thereafter, Ross filed a timely notice of appeal, which the State has moved to dismiss.

In its motion to dismiss, the State argues that because Ross raised this same issue in his earlier appeal, which was dismissed by this Court because it was untimely filed, Ross’s claim is barred under the doctrine of res judicata. We agree that this Court is constrained to dismiss Ross’s appeal, but we do so under the law-of-the-case rule.

It is well established that “fa]ny issue that was raised and resolved in an earlier appeal is the law of the case and is binding on this Court,” and that “[t]he law of the case doctrine is not confined to civil cases, but applies also to rulings made by appellate courts in criminal cases.” And here, Ross’s current appeal involves the exact same subject matter as his previous appeal, which we dismissed for being untimely filed. In this respect, it matters not that the dismissal of Ross’s previous appeal did not reach the merits of Ross’s claim because the dismissal, nevertheless, constitutes binding law of the case.

Decided June 29, 2011.

Matthew Ross, pro se.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

And while our Supreme Court has carved out an exception to the law-of-the-case rule “when the evidentiary posture of the case changes such that the original evidence submitted is found to be insufficient, and the deficient evidence is later supplemented,” it is inapplicable here because the evidentiary posture of the case sub judice has not changed from that presented in the prior proceeding.

Finally, while Ross is correct in noting that a void sentence is a mere nullity and may be vacated at any time in any court where it becomes material to the interest of the parties to consider it, this important legal principle is, nevertheless, subject to the equally well established principles of res judicata and the law-of-the-case rule once the issue has been raised and ruled upon. Ross is not entitled to multiple bites at the apple. He was given an opportunity to challenge the legality of his sentence in April 2006, and then to appeal the trial court’s rejection of his argument. Ross failed to appeal that decision in a timely manner, and he is now bound by same.

For all of the foregoing reasons, we are precluded from revisiting the issue presented by this appeal, and Ross’s appeal is hereby dismissed.

Appeal dismissed.

Smith, P. J., and Mikell, J., concur.

       255 Ga. App. 462 (566 SE2d 47) (2002).

        See OCGA § 17-10-7 (c); see generally State v. Freeman, 198 Ga. App. 553, 555 (2) (402 SE2d 529) (1991). While we do not reach the merits of Ross’s argument on appeal, it is worth noting that our Supreme Court’s recent decision in State v. Slaughter, 289 Ga. 344 (711 SE2d 651) (2011) appears to foreclose such an argument. Id. at 345 (holding that “the state can use the prior felony conviction required to convict a convicted felon for being in possession of a firearm, and then use the same prior conviction to enhance the sentence to the maximum punishment for the offense under [OCGA 8 17-10-7 (c)]”).

        See OCGA § 5-6-38 (a); see also Simmons v. State, 228 Ga. App. 470, 470 (491 SE2d 908) (1997) (“Timely filing of a notice of appeal is necessary to confer jurisdiction upon an appellate court”).

        Perez v. State, 263 Ga. App. 411, 412 (588 SE2d 269) (2003) (citation and punctuation omitted); see OCGA § 9-11-60 (h) (providing, inter alia, that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be”).

        Perez, 263 Ga. App. at 412 (citation and punctuation omitted); see also Moon v. Stale, 287 Ga. 304, 309 (696 SE2d 55) (2010) (same); Roulain v. Martin, 266 Ga. 353, 354 (466 SE2d 837) (1996) (same).

        Cf. Howard v. State, 289 Ga. 207 (710 SE2d 761) (2011) (holding that because defendant’s current appeal raised the same issue as a previous appeal that was dismissed as untimely, party’s current appeal was barred under the doctrine of res judicata); Norris v. Norris, 281 Ga. 566, 567-68 (2) (642 SE2d 34) (2007) (same); Mitchell v. Oliver, 254 Ga. 112, 114 (1) (327 SE2d 216) (1985) (same). Although the Supreme Court dismissed those appeals under the doctrine of res judicata as opposed to the law of the case, see State v. Mizell, 288 Ga. 474, 478 (3) (705 SE2d 154) (2011), the reasoning employed by the Supreme Court in those two opinions supports our holding in the case sub judice.

        Moon, 287 Ga. at 309 (citation and punctuation omitted).

        Coleman v. State, 305 Ga. App. 680, 680 (700 SE2d 668) (2010).

        See n. 6; cf. Jordan v. State, 253 Ga. App. 510, 511 (559 SE2d 528) (2002) (holding that once a motion to vacate a void sentence has been raised and considered that decision is res judicata); Day v. State, 242 Ga. App. 899, 899 (531 SE2d 781) (2000) (same).

        See, e.g., Perez, 263 Ga. App. at 412; see also Houston County v. Harrell, 287 Ga. 162, 163 (695 SE2d 29) (2010) (“[A] party is not entitled to a second appeal from a single order.” (citation omitted)).