source: Caselaw Access Project

author: Ellington, Presiding Judge. MCFADDEN, Judge, DILLARD, Judge,

license: Public Domain

text:
    A15A0527.
    FLETCHER v. WATER APPLICATIONS DISTRIBUTION GROUP, INC. et al.
    (773 S.E.2d 859)
   Ellington, Presiding Judge.

Marcella Fletcher appeals from the order of the State Court of Thomas County granting summary judgment to Water Applications Distribution Group, Inc. (“Water Applications”) and CertainTeed Corporation (“CertainTeed”) in this suit for personal injury arising out of the alleged negligence of the appellees, a vendor and manufacturer, respectively, of asbestos-containing cement water pipe. Fletcher averred that she was exposed to her father’s asbestos dust-contaminated work clothing between 1960 and 1977 when she was responsible for washing her family’s laundry at home and that, as a result of that exposure, she developed malignant pleural mesothelioma. The trial court granted summary judgment to the appellees, concluding that they owed no duty of care to Fletcher under these circumstances. For the reasons that follow, we affirm in part and reverse in part.

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. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.

(Citations, punctuation and footnote omitted.) MCG Health v. Barton, 285 Ga. App. 577, 578 (647 SE2d 81) (2007). So viewed, the record shows the following relevant facts.

Fletcher was diagnosed with malignant pleural mesothelioma on August 5, 2012. She produced evidence that the disease is caused by asbestos exposure and has a latency period of approximately 40 years from the time of exposure to the onset of disease. Fletcher deposed that she was exposed to two sources of asbestos during her lifetime: (1) during a 1971 construction project in her family home and (2) during the seventeen years between 1960 and 1977 when she laundered her father’s asbestos dust-contaminated work clothing at home. Fletcher recalled seeing a gray dust on her father’s work clothes that became an airborne “mist” when she shook out his clothing prior to laundering it. Fletcher presented evidence that asbestos dust released from work clothing could remain in the home as a continuing contaminant, exposing a worker’s family members to a risk of mesothelioma.

Fletcher’s father was employed by the City of Thomasville Water & Light Department from 1948 until his retirement in 1983. From 1971 through 1977, her father’s primary job duty was handling, cutting, installing, and repairing water pipe. A city employee testified that Fletcher’s father worked primarily with CertainTeed asbestos-containing cement pipe. When Fletcher’s father cut and beveled the pipes, dust containing asbestos was deposited on his work clothing. At the end of each work day, he wore those contaminated work clothes home.

CertainTeed has been manufacturing asbestos-containing products since 1930. It began manufacturing asbestos-containing water and sewer pipe in 1962. Sales invoices establish that approximately 30,158 linear feet of CertainTeed “Fluid-Tite” asbestos-containing cement pipe was shipped to the City of Thomasville Water & Light Department between 1969 and 1973. The invoices also show that the pipe was sold to the City through a local vendor, Davis Meter & Supply Company, the predecessor to Water Applications. The pipes contained approximately 10 to 20 percent asbestos by weight, and they had to be cut and beveled in order to be connected to other pipes.

Fletcher presented evidence in response to the appellees’ motion for summary judgment showing that the dangers, not only to a worker but also to a worker’s family, from work clothing that had been contaminated with toxic substances were known and documented in published occupational health and safety literature as early as 1913. In 1943, the Pennsylvania Department of Labor distributed to industrial employers in the state, including CertainTeed, a “Safe Practice Bulletin” advising employers to have their employees keep their asbestos-contaminated work clothing at work in special lockers. In 1949, CertainTeed joined the National Safety Council, an industry public service organization, and, in 1954, the National Safety Council published articles warning against the dangers of workers carrying toxic substances home to their families on their work clothes. Certain-Teed admitted in a verified interrogatory in another lawsuit “that it became aware at least by 1962, ... if not earlier” that exposure to asbestos fibers was associated with an increased risk of developing certain asbestos-related diseases, including mesothelioma. In 1963, the National Safety Council again warned its members that “contaminated work clothes should not be taken home where a toxic dust could contaminate the home or expose other members of the family.” In 1964, during a conference attended by CertainTeed, researchers presented evidence that mesothelioma was associated not only with occupational exposure to asbestos dust but also to exposure to dust brought home by relatives working with asbestos. In 1972, Occupational Safety and Health Administration (“OSHA”) rules and regulations required employers to provide special clothing for those working with asbestos fibers and to properly isolate those work clothes to prevent the employee’s street clothes from becoming contaminated. Fletcher adduced evidence that neither appellee had placed an asbestos health hazard warning on the asbestos-containing water pipe products during the time of Fletcher’s alleged exposure.

Fletcher sued CertainTeed and Water Applications under theories of negligence. She asserted against both appellees various “general negligence” claims as well a claim for negligent failure to warn of the health risks associated with the product’s use. Fletcher also sued both appellees under a theory of negligence for selling a defective product, asserting that the water pipe was defective because it contained asbestos fibers that were released into the air when the pipe was cut. CertainTeed and Water Applications both moved for summary judgment, and, following a hearing, the trial court granted the motions, concluding that the appellees did not owe Fletcher a duty of care because she was neither a user nor a consumer of the pipe at issue and because the appellees “could not have reasonably foreseen that [she] would be affected by their product.” It is from this ruling that Fletcher appeals.

To state a cause of action for negligence in Georgia, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

(Citation and punctuation omitted.) Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). “Before negligence can be predicated upon a given act, some duty to the individual complaining must be sought and found, the observance of which duty would have averted or avoided the injury or damage.” (Citations and punctuation omitted.) CSX Transp. v. Williams, 278 Ga. 888, 889 (608 SE2d 208) (2005). “The duty can arise either from a valid legislative enactment, that is, by statute, or be imposed by a common law principle recognized in the caselaw.” Rasnick v. Krishna Hospitality, 289 Ga. 565, 566-567 (713 SE2d 835) (2011). “The existence of a legal duty is a question of law for the court.” Id. at 567.

1. CertainTeed’s duty to Fletcher. Generally, under Georgia negligence law, a product manufacturer “has a duty to exercise reasonable care in manufacturing its products so as to make products that are reasonably safe for intended or foreseeable uses[.]” (Citations omitted.) Chrysler Corp. v. Batten, 264 Ga. 723, 724 (1) (450 SE2d 208) (1994). With respect to product manufacturers, Georgia law recognizes causes of action based on three general categories of product defect: manufacturing defects, design defects, and warning defects. See Banks v. ICI Americas, 264 Ga. 732, 733 (1) (450 SE2d 671) (1994); Chrysler Corp. v. Batten, 264 Ga. at 724 (l). The duties owed pursuant to each claim are not coextensive and must be analyzed separately. Chrysler Corp. v. Batten, 264 Ga. at 724 (1).

(a) Manufacturing defect. Generally, a manufacturing defect results from an error specifically in the fabrication process, as distinct from an error in the design process. See J. Kennard Neal, Ga. Products Liability Law § 6:1, n. 8 (4th ed.). Thus, for a manufacturing defect claim, “it is assumed that the design of the product is safe and had the product been manufactured in accordance with the design it would have been safe for consumer use[.]” Banks v. ICI Americas, 264 Ga. at 733 (1). Because a manufacturing defect represents a departure from a product’s design specifications, a manufacturing defect may be found when the product at issue is compared “to a properly manufactured item from the same product line.” (Citation omitted.) Id.

The facts alleged in Fletcher’s claim for a manufacturing defect are not consistent with the proposition that, when CertainTeed fabricated the cement water pipe handled by Fletcher’s father, it negligently departed from the design specifications for the pipe and that Fletcher’s injuries arose from such negligent manufacture. Rather, Fletcher contends that an entire product line — the Certain-Teed “Fluid-Tite” water pipe — is defective because it contains asbestos fibers that are released when the pipe is cut. When a plaintiff calls into question the safety of an entire product line, as in this case, the claim is one for a design defect and not for a manufacturing defect. See Division 1 (b), infra. Because Fletcher’s complaint does not set forth facts supporting the existence of a cause of action for a manufacturing defect, the trial court did not err in granting summary judgment to CertainTeed on this claim.

(b) Design defect. As the Supreme Court of Georgia has explained, in a products liability action for defective design,

the focus [under Georgia statutory and case law] is not on use of the product.... [Rather], the proper analysis in a design defect case is to balance the risks inherent in a product design against the utility of the product so designed----The “heart” of a design defect case is the reasonableness of selecting from among alternative product designs and adopting the safest feasible one. Consequently, the appropriate analysis . . . includes the consideration of whether the defendant failed to adopt a reasonable alternative design which would have reduced the foreseeable risks of harm presented by the product.

(Citations, punctuation and footnotes omitted.) Jones v. Nordictrack, Inc., 274 Ga. 115, 115-118 (550 SE2d 101) (2001). See also Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. 644, 645 (522 SE2d 467) (1999) (“In a negligent design case, the risk-utility analysis applies to determine whether the manufacturer is liable.”). The risk-utility analysis is

a test balancing the risks inherent in a product design against the utility of the product so designed____[U]nder the risk-utility analysis for the determination whether a manufacturer should be liable for an entire product line, no finite set of factors can be considered comprehensive or applicable under every factual circumstance, since such matters must necessarily vary according to the unique facts of each case.

Banks v. ICI Americas, 264 Ga. at 735-736 (1). Generally,

it is for the trier of fact to consider the numerous factors which are pertinent in balancing the risk of the product against its utility or benefit. . . . [Determination of a product’s risks and benefits as a matter of law... will rarely be granted in design defect cases when any of these elements is disputed.

(Citations and punctuation omitted.) Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. at 646. A defendant bears the burden, in seeking a judgment as a matter of law, “to show plainly and indisputably an absence of any evidence that a product as designed is defective.” (Citation omitted; emphasis in original.) Id.

Rather than addressing the issue of whether its product as designed was defective, CertainTeed contends it is entitled to judgment because Fletcher is not within a class of people whose interests are entitled to protection from its conduct, citing CSX Transp. v. Williams, 278 Ga. 888. In that case, the Supreme Court of Georgia “decline [d] to extend on the basis of foreseeability” the duty that an employer owes to provide a safe workplace to its employees to encompass potential liability for injuries sustained by any third party, nonemployee who might come into contact with its employees’ asbestos-tainted work clothing at locations away from the workplace. Id. at 890-891. We conclude, however, that CSX Transp. v. Williams is not controlling when determining whether a manufacturer violated its duty of care in a design defect case. The risk-utility analysis applicable to such claims is not concerned with protecting only specified classes of people. See Jones v. Nordictrack, Inc., 274 Ga. at 115-118; Banks v. ICI Americas, 264 Ga. at 736 (1). Because Certain-Teed failed to carry its burden of showing plainly and indisputably an absence of any evidence that its product as designed was defective under the risk-utility analysis, the trial court erred in granting summary judgment to CertainTeed on Fletcher’s design defect claim. Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. at 647.

(c) Warning defect. “Under Georgia law, a manufacturer has a duty to warn of nonobvious foreseeable dangers from the normal use of its product.” (Citations omitted.) Thornton v. E.I. Du Pont De Nemours & Co., 22 F3d 284, 289 (III) (b) (11th Cir. 1994) (applying Georgia law). See also Chrysler Corp. v. Batten, 264 Ga. at 724 (1) (“[T]he manufacturer of a product which, to its actual or constructive knowledge, involves danger to users, has a duty to give warning of such danger.”) (citations omitted); Fouch v. Bicknell Supply Co., 326 Ga. App. 863, 872 (2) (756 SE2d 682) (2014) (accord). The manufacturer’s duty to warn continues even after the product has been sold. See DeLoach v. Rovema Corp., 241 Ga. App. 802, 804 (527 SE2d 882) (2000) (recognizing a manufacturer’s duty to warn consumers of a danger arising from the use of a product based on knowledge acquired after the product is sold). The manufacturer’s duty to warn extends to users, consumers, and purchasers of the product. Georgia law also requires a manufacturer to exercise reasonable care to inform third persons of foreseeable dangers arising from the reasonable use for which a product is intended. R & R Insulation Svcs. v. Royal Indem. Co., 307 Ga. App. 419, 427 (3) (705 SE2d 223) (2010). Although, as a practical matter, Fletcher would not have seen warning labels placed on CertainTeed’s pipe, she argues that, if CertainTeed had warned the City or Fletcher’s father (the purchaser and user of the pipe, respectively) of the risks both to the user and to third parties from inhaling asbestos dust released by cutting the pipe, her father would have taken precautions to protect himself, his family, and others from exposure to the asbestos dust. See Daniels v. Bucyrus-Erie Corp., 237 Ga. App. 828, 830 (516 SE2d 848) (1999) (A manufacturer’s warning that is given “to a person in a position such that he may reasonably be expected to act so as to prevent the danger from manifesting itself” may be sufficient to reasonably protect third-party bystanders.) (citation and punctuation omitted).

Applying this law to the facts of this case, we conclude that whether CertainTeed had a duty to warn of the risks of its asbestos-containing water pipe remains a question for the jury to resolve. Fletcher presented some evidence that, prior to and during the period that Fletcher’s father was actively working with its pipe, CertainTeed had actual or constructive knowledge of the following: (1) asbestos is a hazardous substance that causes mesothelioma; (2) asbestos dust may be released from its asbestos-containing cement water pipe during the ordinary use of that product; (3) the asbestos dust may be deposited on the work clothing of those using the pipe; (4) workers who are unaware of the risks of asbestos dust may unwittingly expose others, in this case family members, to that dust. Because the facts adduced with respect to CertainTeed’s knowledge are disputed and because questions concerning foreseeability are typically for the jury, the trial court erred in granting summary judgment to CertainTeed on Fletcher’s negligent failure to warn claim. See R & R Insulation Svcs. v. Royal Indem. Co., 307 Ga. App. at 427-430 (3) (a); Wabash Metal Products v. AT Plastics Corp., 258 Ga. App. 884, 886-887 (1) (575 SE2d 683) (2002).

(d) Miscellaneous “general negligence”claims. Fletcher has asserted other general negligence claims against CertainTeed, e.g., negligent failure to test and negligent failure to recall. However, Fletcher has not challenged the trial court’s grant of summary judgment in favor of CertainTeed with respect to any of these other “general negligence” claims. Thus, with respect to those claims, the trial court’s judgment is affirmed.

2. Water Application’s duty to Fletcher. The record shows that Water Applications (as the successor to Davis Meter & Supply Company) was not involved in the manufacture of the water pipe at issue in this case; rather, it was a vendor. Fletcher obtained records from CertainTeed which show that Water Applications placed the order for the CertainTeed pipe for the City and that the pipe was shipped directly to the City. There is no evidence in the record establishing that Water Applications ever had possession of the pipe. Nor has Fletcher presented evidence from which a jury might infer that Water Applications had actual or constructive knowledge, at the time that it sold the pipe, of the health risks to third persons from asbestos dust released from CertainTeed’s asbestos-containing water pipe.

(a) Manufacturing and design defect claims and other “general negligence” claims. As we held in Division 1 (a), Fletcher has not supported her claim for a manufacturing defect. Further, Fletcher has not challenged the trial court’s grant of summary judgment in favor of Water Applications as to any of the other product liability or “general negligence” claims alleged in the complaint, other than the claim alleging negligent failure to warn. Thus, with respect to those claims, the trial court’s judgment is affirmed.

(b) Negligent failure to warn. “[T]he distributor of a product which, to its actual or constructive knowledge, involves danger to users has a duty to give warning of such danger at the time of sale and delivery.” (Citations and punctuation omitted; emphasis supplied.) Farmer v. Brannan Auto Parts, 231 Ga. App. 353, 354 (1) (498 SE2d 583) (1998). Unlike a manufacturer, a seller or a distributor does not have a continuing duty to warn. DeLoach v. Rovema Corp., 241 Ga. App. at 804-805. In this case, Fletcher has presented no evidence from which the factfinder could reasonably infer that Water Applications was aware that the pipe contained no warning labels affixed by the manufacturer. There is no evidence that the pipe was ever in its possession. Further, all of the evidence that Fletcher adduced with respect to the dangers associated with asbestos dust released from the water pipe pertained to knowledge that CertainTeed, as the manufacturer of the product, would have had. Fletcher has not presented evidence from which a jury could infer that, at the time of sale, Water Applications had constructive knowledge of the hazards associated with asbestos dust residue released from CertainTeed’s water pipe. Consequently, the trial court did not err in granting summary judgment to Water Applications on Fletcher’s negligent failure-to-warn claim.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Phipps, P. J., concur. McFadden, J., concurs fully in Divisions 1 and 2 (a) and concurs specially in Division 2 (b). Dillard, Ray and McMillian, JJ., concur fully in Divisions 1 (a), (d) and 2, and dissent in Division 1 (b) and (c).

MCFADDEN, Judge,

concurring fully and specially.

I write separately to withhold my full concurrence from Division 2 (b), in which the majority holds that Water Applications is entitled to summary judgment on Fletcher’s negligent failure-to-warn claim due to lack of knowledge. But I reach the same result on the basis of failure to show a duty to warn. I concur fully in the remainder of the opinion.

The majority holds that Water Applications is entitled to summary judgment on the failure-to-warn claim because “Fletcher has not presented evidence from which a jury could infer that. .. Water Applications had constructive knowledge of the hazards associated with asbestos dust residue released from CertainTeed’s water pipe.” We should not reach the issue of knowledge because Fletcher had discovery pending on that issue when Water Applications’s motion for summary judgment was argued and she properly brought that outstanding discovery to the attention of the trial court by filing a motion under OCGA § 9-11-56 (f).The trial court responded to thatmotion at the summary judgment hearing by announcing that he would limit his consideration to the issue of duty. As for knowledge, he proposed to “just kick that can down the road.”

Nonetheless, I agree that Water Applications is entitled to summary judgment on the failure-to-warn claim. I am persuaded — for reasons corresponding to those set out in Judge Dillard’s opinion concurring in part and dissenting in part — that that duty does not extend to Water Applications’s conduct.

DILLARD, Judge,

concurring in part and dissenting in part.

The trial court correctly granted summary judgment as to all of Fletcher’s claims. Thus, I concur fully with Divisions 1 (a), (d) and 2 of the majority’s opinion. However, I respectfully dissent as to Division 1 (b) and (c) of the majority’s opinion, in which it contends that genuine issues of material fact remain as to whether CertainTeed owed Fletcher any duty.

Both Fletcher’s negligent-design and duty-to-warn claims are grounded in negligence, and it is well established that “[i]n order to have a viable negligence action, a plaintiff must satisfy the elements of the tort, namely, the existence of a duty on the part of the defendant, a breach of that duty, causation of the alleged injury, and damages resulting from the alleged breach of the duty.” A legal duty, of course, is the obligation to “conform to a standard of conduct under the law for the protection of others against unreasonable risks of harm.” And importantly, “[t]he existence of a legal duty is a question of law for the court.”

In this matter, Fletcher argues that CertainTeed owed her a duty because it was foreseeable that the asbestos contained in its products would contaminate her father’s work clothes and then expose family members tasked with washing those clothes. However, in CSXTransp. v. Williams, the Supreme Court of Georgia rejected a nearly identical theory of duty. Specifically, in Williams, the plaintiffs sued their fathers’ employer, CSXT, claiming that they were exposed to asbestos from the clothing their fathers wore while working for CSXT and that such exposure contributed to their asbestos-related disease. Determining whether CSXT owed plaintiffs a legal duty, the Supreme Court noted:

[I]n fixing the bounds of duty, not only logic and science, but policy play an important role. However, it must also be recognized that there is a responsibility to consider the larger social consequences of the notion of duty and to correspondingly tailor that notion so that the illegal consequences of wrongs are limited to a controllable degree. The recognition of a common-law cause of action under the circumstances of this case would, in our opinion, expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs.

Accordingly, the Court declined “to extend on the basis of foreseeability the employer’s duty beyond the workplace to encompass all who might come into contact with an employee or an employee’s clothing outside the workplace.”*

Although it acknowledges Williams, the majority concludes that it “is not controlling when determining whether a manufacturer violated its duty of care in a design defect case.” (Emphasis supplied.) But such a conclusion amounts to question begging given that Williams does not address whether a duty was violated, but rather is concerned with whether a duty is even owed as an initial matter. And as the majority also acknowledges, establishing a legal duty in the first place is essential for stating a cause of action for negligence in Georgia.

In contrast to the majority, it is my view that the Supreme Court of Georgia’s limitation on the parameters of who is owed a legal duty, as analyzed in Williams, also applies to limit the scope of the duty owed by manufacturers such as CertainTeed in this matter. Indeed, such manufacturers of asbestos-containing products are even further removed from household-exposure plaintiffs than an employer who utilizes such products at its worksite. And given such circumstances, finding as a matter of law that one so far removed, nevertheless, owes a duty to such a plaintiff “expand[s] traditional tort concepts beyond manageable bounds” and, in fact, creates the “almost infinite universe of potential plaintiffs” against which Williams warns. Accordingly, I would affirm the trial court’s grant of summary judgment in its entirety.

Decided July 16, 2015 —

Reconsideration denied July 31, 2015

Buck Law Firm, Robert C. Buck, Juliana Y. Sleeper, for appellant.

Schiff Hardin, Leah Ward Sears; Demahy, Labrador, Drake, Victor & Cabeza, Michael J. Crist; Hawkins, Parnell, Thackston & Young, E. Elaine Shofner, Elisabeth M. Cheatham, for appellees.

For all of the foregoing reasons, I concur fully with Divisions 1 (a), (d) and 2 of the majority’s opinion, but I respectfully dissent as to Division 1 (b) and (c).

I am authorized to state that Judge Ray and Judge McMillian join in this opinion.

       We note that, because Fletcher claims that she suffers from a disease allegedly caused by the appellees’ negligence, her claims are not barred by the statute of repose applicable to statutory “strict liability claims. See OCGA § 51-1-11 (b) (2). (“No action shall be commenced pursuant to this subsection with respect to an injury after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.”) Fletcher’s negligence-based claims, however, are subject to OCGA § 51-1-11 (c), which provides:
      The limitation of paragraph (2) of subsection (b) of this Code section regarding bringing an action within ten years from the date of the first sale for use or consumption of personal property shall also apply to the commencement of an action claiming negligence of a manufacturer as the basis of liability, except an action seeking to recover from a manufacturer for injuries or damages arising out of the negligence of such manufacturer in manufacturing products which cause a disease or birth defect, or arising out of conduct which manifests a willful, reckless, or wanton disregard for life or property. Nothing contained in this subsection shall relieve a manufacturer from the duty to warn of a danger arising from use of a product once that danger becomes known to the manufacturer.
      (Emphasis supplied.) See Chrysler Corp. v. Batten, 264 Ga. 723, 725-726 (2) (450 SE2d 208) (1994) (Holding that OCGA § 51-1-11 (c) “extends the ten-year statute of repose to negligence actions, but differs from subsection (b) (2) by providing for two exceptions to the statute of repose, i.e., where the manufacturer’s negligence resulted in a product causing disease or birth defect, or where the injuries or damages arose out of conduct manifesting a ‘willful, reckless, or wanton disregard for life or property.’ ”) (citation omitted).

       According to one treatise, “the practical importance of general negligence principles has decreased in recent years as the Georgia Supreme Court has moved Georgia products liability law closer to the unified functional definitions of defect in the Restatement (Third).” J. Kennard Neal, Ga. Products Liability Law § 3:1 (4th ed.). The Restatement provides:
      A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:
      (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;
      (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
      (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
      Restatement (Third) of Torts: Products Liability, § 2 (1998).

       See DeLoach v. Rovema Corp., 241 Ga. App. at 804 (manufacturer’s duty extends to consumer of a product); Zeigler v. CloWhite Co., 234 Ga. App. 627, 629 (2) (507 SE2d 182) (1998) (manufacturer’s duty extends to user of a product); Vickery v. Waste Mgmt. of Ga., 249 Ga. App. 659, 660 (2) (549 SE2d 482) (2001) (manufacturer’s duty extends to purchaser of a product).

       This position is more consistent with the Restatement (Third) approach, which focuses on the foreseeable risk of harm to persons from a product that is rendered defective as a result of inadequate warnings or instructions. The Restatement (Third) of Torts: Products Liability, § 1 (1998) provides: “One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.” Additionally, the Restatement (Third) of Torts: Products Liability § 2 (c) (1998) provides that a product
      is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

        Rasnick v. Krishna Hospitality, Inc., 289 Ga. 565, 566 (713 SE2d 835) (2011).

        Id.

        Id. at 567.

       278 Ga. 888 (608 SE2d 208) (2005).

        Id.

        Id. at 890 (punctuation omitted) (citing Widera v. Ettco Wire and Cable Corp., 204 AD2d 306, 307-08 (611 NYS2d 569) (1994)).

        Williams, 278 Ga. at 890-91.

        See id. at 889 (explaining that the question certified is “[w]hether Georgia negligence law imposes any duty on an employer to a third-party, non-employee, who comes into contact with its employee’s asbestos-tainted work clothing at locations away from the workplace, such as the employee’s home?”).

        Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982); accord Rasnick, 289 Ga. at 566; Williams, 278 Ga. at 889; Diamond v. Dep’t of Transp., 326 Ga. App. 189, 193 (2) (756 SE2d 277) (2014).

        Williams, 278 Ga. at 890.


author: PHIPPS, Presiding Judge.

text:
    A13A0912.
    CITY OF ATLANTA et al. v. MITCHAM.
    (776 S.E.2d 303)
    Decided August 5, 2015.

      Laura S. Burton, Jin Tae Kim, for appellant.

      McAleer Law Firm, Shaun R. Cade, for appellee.
   PHIPPS, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court in City of Atlanta v. Mitcham, 296 Ga. 576 (769 SE2d 320) (2015), our decision in City of Atlanta v. Mitcham, 325 Ga. App. 481 (751 SE2d 598) (2013) is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Ellington, P. J., and Branch, J., concur.


author: ELLINGTON, Presiding Judge.

text:
    A13A0455.
    GEORGIA-PACIFIC CONSUMER PRODUCTS, LP v. RATNER et al.
    (776 S.E.2d 312)
   ELLINGTON, Presiding Judge.

In Georgia-Pacific Consumer Products, LP v. Ratner, 295 Ga. 524 (762 SE2d 419) (2014), the Supreme Court of Georgia reversed this Court’s decision in Georgia-Pacific Consumer Products, LP v. Ratner, 323 Ga. App. 203 (746 SE2d 829) (2013), in which we affirmed the trial court’s order certifying the class in this suit alleging damages from the release of hydrogen sulfide gas from the defendant’s sludge fields, finding no abuse of discretion. Accordingly, our prior decision is vacated, the opinion of the Supreme Court is made the opinion of this Court, and the order of the trial court is hereby reversed.

Decided August 6, 2015.

Ellis, Painter, Ratterree & Adams, Tracy Ann O’Connell; Hull Barrett, David E. Hudson, for appellant.

Bell & Brigham, John C. Bell, Jr.; Oliver Maner, Benjamin M. Perkins, Timothy D. Roberts, for appellees.

Troutman Sanders, William M. Droze, amicus curiae.

Judgment reversed.

Andrews, P. J., Barnes, P. J., Phipps, P. J., Miller, Ray, and Branch, JJ., concur.


author: Barnes, Presiding Judge.

text:
    A15A1258.
    WEYER v. THE STATE.
    (776 S.E.2d 304)
   Barnes, Presiding Judge.

A jury found Jamie Lee Weyer guilty of two counts of sexual exploitation of children, and the trial court denied his amended motion for new trial. On appeal, Weyer contends that the evidence was insufficient to support his convictions and that the trial court committed plain error by failing to define the word “entice” when requested to do so by the jury. For the reasons discussed below, we affirm.

1. We first address the sufficiency of the evidence.

When we consider whether the evidence is sufficient to sustain a conviction, we ask whether any rational jury could have found proof beyond a reasonable doubt of the guilt of the defendant in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. And as we consider this question, we must keep in mind that it is for the jury, not appellate judges, to weigh the evidence, pass upon the credibility of witnesses, and resolve conflicts in the evidence. So, if the record contains some competent evidence sufficient to prove beyond a reasonable doubt each element of the crime of which the defendant was convicted, we must uphold the conviction, even if the evidence is contradicted.

(Citations omitted.) Copeny v. State, 316 Ga. App. 347 (1) (729 SE2d 487) (2012).

Viewed in the light most favorable to the verdict, the evidence showed that on August 9, 2012, the teenage child A. M., who lived with her grandmother, was at home in her bedroom with her cousin, H. M., who was spending the night. A. M. and H. M. were both 16 years old. The grandmother’s boyfriend, Weyer, also was at the house, but in a different room. Weyer, who was 49 years old, had known A. M. since she was five and H. M. since she was “little.”

Around 10:20 p.m., Weyer began sending text messages to A. M. in which he requested nude photographs of her and H. M. Weyer continued sending text messages until shortly after midnight and then started again the next morning. A. M. and H. M. later testified that Weyer’s text messages scared them. H. M. was afraid Weyer “was going to come in the room to us” after he made the request for photographs.

With respect to the text messages at issue, Weyer initially texted A. M., “I’ve been really good to yall latley right?” When A. M. did not answer, Weyer wrote, “I want something but im afraid to ask-nuthin physical!” A. M. replied, “Tell me,” and Weyer responded, “no-its not right-but i love thinkin about it” and emphasized that A. M. could not tell her grandmother. After A. M. promised that she would not tell, Weyer texted, “i want sum pics of you and [H. M.]!” A. M. asked Weyer what kind of photographs he wanted, and Weyer replied, “Idk-i think you do, but i don’t wqnt no problems!” When A. M. again asked what kind of photographs he wanted, Weyer wrote, “NAKED- i want to see your fine asses and tits naked” and promised that he would hide the photographs.

A. M. indicated to Weyer that she was afraid that her grandmother would see the photographs if she took them on her phone. Weyer wrote in response that he could provide A. M. with his phone. A. M. replied, “Not now. Have to get a shower....” Weyer wrote back, “Okay,” and then “Tell me what to do!” followed by “I can wait!! I’ve been watching this long, ok.”

A. M. then sent Weyer a photograph of herself in a bikini. Weyer responded, “PLEASE! more baby!:-)” and “i want more please!” A. M. wrote back that she was busy, to which Weyer replied, “Ok-sorry not tryin to push, we will have ops for more-ihope thats what you want to.” A. M. wrote, “K,” and Weyer responded, “Thank you!:-).”

A few minutes later, Weyer texted A. M. to ask if she was “freaking out” and if she could “send sum from [H. M.’s] phone.” When A. M. did not respond, Weyer wrote, “Please tell me sumthin” and then, “Please!” A. M. replied, “I’m not freakin out. I’m sleepin.” Weyer texted back, “ok-your not afraid of me are ya?,” and A. M. replied, “No.” Weyer then wrote that he loved the photograph A. M. had sent him and asked her if she could “send more from [H. M.’s] phone.” After receiving no response, appellant texted A. M., “Your [grandmother] is asleep-im in the bathroom-you could come get my phone,” and then wrote, “C’mon look what i do for youWith no response from A. M., Weyer concluded by texting, “Okay but promise you will in the future!” A. M. did not respond to Weyer’s final text that night.

The next morning, Weyer was sitting on the front porch when A. M. and H. M. were leaving the house to drive to school. When Weyer saw A. M. and H. M., he said, “Have a good day, girls,” and winked at them. After A. M. and H. M. got in the car, they noticed that a pack of cigarettes and Weyer’s lighter had been placed in the middle console area.

As A. M. and H. M. drove to school, Weyer sent several text messages to them referring to his prior request for photographs and asking if they were upset with him. When Weyer texted H. M. to ask whether she would send him any photographs, H. M. replied, “Hell no.” Weyer then wrote, “aww to bad for me but are we cool?,” and H. M. responded, “Ya.” Weyer texted back, “good! Hate to think we wasnthope you change your mind-i can hide em H. M. replied, “Jamie im 16?,” and thereafter noted that A. M. was the same age. Weyer ended the exchange by texting, “Cant blame a guy for tryin! hope we still cool bot everything else.and “good wouldnt want iit any other way!:)”

After A. M. and H. M. arrived at school, they spoke to the high school resource officer about the text messages sent by Weyer. The resource officer contacted a police investigator, who interviewed A. M. and H. M. and took possession of their phones. A forensic analysis subsequently was conducted of the phones, resulting in the successful retrieval of the relevant text messages and the photograph that A. M. had sent to Weyer.

The police investigator procured an arrest warrant and arrested Weyer later that same day. Weyer spoke with an investigator after he was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). Weyer told the investigator that he had been drinking alcohol that night, admitted that he exchanged text messages with A. M. and H. M., and provided a cell phone number for himself that matched the number from which the relevant text messages had originated. However, Weyer claimed that he could not remember the content of the messages that he had sent and denied that he ever provided A. M. or H. M. with cigarettes.

The police investigator obtained Weyer’s phone, and a forensic analysis was performed of its contents. While none of the relevant text messages between Weyer and A. M. or H. M. could be found on Weyer’s phone, Weyer admitted that he had deleted some of his messages. But Weyer had not deleted from his phone the photograph of A. M. in a bikini that she had sent him.

Weyer was indicted on two counts of sexual exploitation of children for enticing A. M. and H. M. to take nude photographs of themselves. A jury trial ensued at which A. M. and H. M. testified to events as summarized above. In addition to their testimony regarding the incident in question, A. M. and H. M. testified about previous interactions they had with Weyer. A. M. testified that earlier that summer, Weyer had slapped her on the buttocks with his hand, commenting that her shorts were too short. H. M. testified that on a prior occasion, she was sitting alone with Weyer on the back porch, and he began speaking to her with his face close to her face. When H. M. tried to move away, Weyer had replied, “No, baby, come here.” Both A. M. and H. M. further testified that on previous occasions that summer, Weyer had provided them with cigarettes and allowed them to smoke in his presence.

The State also called the police investigator involved in the case and introduced expert testimony regarding the forensic analysis of the phones, as well as printouts of the relevant text messages and the photograph of A. M. in a bikini that she had sent to Weyer. Additionally, the State introduced and played for the jury a video recording of Weyer’s interview with the police investigator. Weyer elected not to testify and did not call any defense witnesses.

After the close of the evidence and the charge of the court, the jury found Weyer guilty of both charged offenses. Weyer filed a motion for new trial, as amended, and the trial court denied the motion. This appeal followed.

Under Georgia’s sexual-exploitation-of-children statute, “[i]t is unlawful for any person knowingly to . . . entice . . . any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.” OCGA § 16-12-100 (b) (1). “Sexually explicit conduct” is defined to include the “[l]ewd exhibition of the genitals or pubic area of any person[.]” OCGA § 16-12-100 (a) (4) (D). “Visual medium” is defined as “any film, photograph, negative, slide, magazine, or other visual medium[,]” OCGA § 16-12-100 (a) (5), and “minor” is defined as any person under 18 years old. OCGA § 16-12-100 (a) (1).

Count 1 of the indictment alleged in relevant part that Weyer committed sexual exploitation of children by enticing A. M. “to engage in sexually explicit conduct, to wit: take off her clothing and take a photography of herself naked, for the purpose of producing a digital photograph, a visual medium depicting such conduct.” Count 2 of the indictment alleged that Weyer committed sexual exploitation of children by enticing H. M. in the same manner.

(a) Weyer contends that there was insufficient evidence to support his convictions because the State failed to prove that any photographs showing the lewd exhibition of the genitals or pubic area of A. M. or H. M. were ever taken and transmitted to him. Weyer emphasizes that the only photograph introduced into evidence showed A. M. in a bikini and argues that, as a result, his convictions must be overturned in light of our decision in Craft v. State, 252 Ga. App. 834, 839-843 (1) (558 SE2d 18) (2001), where we held that certain photographs at issue were not lewd as a matter of law because the children in them were shown engaging in nonsexual, innocent activities. See Scarborough v. State, 317 Ga. App. 523, 525 (1) (731 SE2d 396) (2012) (discussing holding in Craft).

Weyer’s contention is misplaced. The statutory language of OCGA § 16-12-100 (b) (1) proscribes, among other things, the enticement of a minor “for the purpose of producing” a visual medium depicting sexually explicit conduct engaged in by the minor. By its plain language, a conviction under OCGA § 16-12-100 (b) (1) does not require a showing by the State that the photograph or other visual medium was ever produced; rather, it is sufficient for the State to prove that the production of the photograph or other visual medium depicting sexually explicit conduct engaged in by the minor was the intended motivation for the enticement. Cf. Bolton v. State, 310 Ga. App. 801, 804-805 (1) (714 SE2d 377) (2011) (conviction for on-line solicitation of a minor under OCGA § 16-12-100.2 (d) (1) did not require proof that the underlying purpose of the solicitation — child molestation — was ever accomplished because “the principal act proscribed by the crime is solicitation”) (emphasis omitted); Lasseter v. State, 197 Ga. App. 498, 499-500 (1) (399 SE2d 85) (1990) (conviction for enticement of a child for indecent purposes under OCGA § 16-6-5 (a) “need not be based upon evidence that an act of indecency or child molestation was accomplished or even attempted,” but instead is “based upon some evidence that an act of indecency or child molestation was the intended motivation for the enticement”) (emphasis omitted). Thus, the State was not required to prove that a photograph of A. M. and H. M. engaging in sexually explicit conduct was ever taken or transmitted to Weyer to obtain his conviction for enticement under OCGA § 16-12-100 (b) (1).

Furthermore, Craft, 252 Ga. App. 834, is clearly distinguishable. The defendant in Craft was charged with the sexual exploitation of children under other subsections of OCGA § 16-12-100 (b) that forbid the creation, possession, or transport into the State of photographs or other visual mediums depicting minors engaged in sexually explicit conduct. See OCGA § 16-12-100 (b) (5), (7), (8). See Craft, 252 Ga. App. at 834, n. 1. Thus, Craft does not control in cases like the present one where a defendant is charged with the sexual exploitation of children based on enticement under OCGA § 16-12-100 (b) (1).

(b) Weyer further contends that even if the State was not required to prove the production of photographs of A. M. and H. M. engaged in sexually explicit conduct, his convictions still must be reversed because there was insufficient evidence that his intent was to obtain photographs from A. M. and H. M. engaged in such conduct. Weyer notes that “sexually explicit conduct” is defined by statute to include only the lewd exhibition of the “genitals or pubic area” of the minor, OCGA § 16-12-100 (a) (4) (D), and he argues that the text messages introduced at trial reflect that he sought photographs of A. M. and H. M.’s breasts and buttocks, not their genitals or pubic areas.

As an initial matter, we agree with Weyer that “genitals” and “pubic area” do not include buttocks or breasts. “Genitals” and “pubic area” are not defined in OCGA § 16-12-100, but the word “genitals” is commonly understood to mean “[t]he reproductive organs, especially the external reproductive organs and associated structures.” American Heritage Dictionary of the English Language (5th ed. 2011). “Pubic” is commonly understood to mean “[o]f, relating to, or located in the region of the pubis or the pubes,” and “pubes” means “[t]he lower part of the abdomen, especially the region surrounding the external genitals.” Id. Furthermore, OCGA § 16-12-100 differentiates between “genitals,” “pubic area,” “buttocks,” and a “female’s nude breasts.” See OCGA § 16-12-100 (a) (4) (G). “All the words of a statute are to be given due weight and meaning,” and “[c]ourts should not so interpret a statute as to make parts of it surplusage unless no other construction is reasonably possible.” Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739, 742-743 (152 SE2d 768) (1966). Where the legislature uses different terms in the same statute, we generally assume that different meanings were intended for those terms. Lawrence v. State, 305 Ga. App. 199, 202 (3) (699 SE2d 406) (2010). Consequently, the terms “genitals” and “pubic area” in OCGA § 16-12-100 (a) (4) (D) do not include buttocks or breasts, as the State itself acknowledges on appeal.

Nevertheless, Weyer’s argument regarding the sufficiency of the evidence is without merit. Weyer clearly sought nude photographs of A. M. and H. M. when he wrote to A. M., “NAKED-i want to see your fine asses and tits naked!!” Based upon a narrow interpretation of part of this specific text message, Weyer argues that he wanted photographs of the victims’ breasts and buttocks and nothing more, but the jury was not required to leave its common sense at the door in resolving this case. Rather, the jurors were entitled to draw reasonable inferences from the evidence based on their own common-sense understanding of the world. See Lanier v. State, 237 Ga. App. 875, 877 (4) (517 SE2d 106) (1999) (“Jurors are entitled to use their own common sense as intelligent human beings on many questions.”) (citation and punctuation omitted). And in reviewing the sufficiency of the evidence on appeal, we look to the evidence as a whole, not a single piece of evidence in a vacuum. See Johnson v. State, 269 Ga. 632, 635 (501 SE2d 815) (1998) (evaluating sufficiency of the evidence by “[considering the evidence as a whole”). Based upon all of the text messages and other evidence adduced at trial, a rational jury could find that Weyer was seeking nude photographs that would show all the intimate areas of the victims’ bodies, including their genitals and pubic areas. In other words, a rational jury could find that Weyer was seeking the most explicit photographs he could obtain from A. M. and H. M. rather than photographs limited to specific body parts. Accordingly, there was evidence to support a finding that Weyer’s intended motivation was to obtain photographs of A. M. and H. M. engaged in “sexually explicit conduct” as that phrase is defined by the statute.

(c) Lastly, Weyer contends that there is no evidence that he “enticed” A. M. and H. M. through the text messages that he sent to them. In this regard, Weyer argues that he “merely stated he would like the girls to send him some pictures” and “never offered them anything in return.”

“Entice” is not expressly defined in OCGA § 16-12-100, but its common and ordinary meaning is “to draw on, by exciting hope and desire; to allure; to attract.” Coker v. State, 164 Ga. App. 493, 495 (1) (297 SE2d 68) (1982) (quoting Arrington v. State, 3 Ga. App. 30, 34 (59 SE 207) (1907)). See also Skelhorn v. State, 332 Ga. App. 782, 787 (3) (b) (773 SE2d 45) (2015). “Entice” also is commonly understood to mean “to solicit” or “to tempt.” See State v. Wilson, 318 Ga. App. 88, 96 (1) (c) (ii) (732 SE2d 330) (2012); Spivey v. Sellers, 185 Ga. App. 241, 242 (363 SE2d 856) (1987).

Here, Weyer solicited nude photographs of A. M. and H. M. in his text messages to them, and he began the text messages by asking, “I’ve been really good to yall latley right?” Moreover, there was circumstantial evidence that the morning after his initial request for the nude photographs, Weyer provided cigarettes along with a lighter to A. M. and H. M. to tempt and attract them into granting his request. Consequently, there was sufficient evidence for the jury to find that Weyer enticed A. M. and H. M.

2. Weyer also contends that the trial court erred by failing to specifically define the term “entice” when requested to do so by the jury and instead instructing the jury that it should assign such words their “ordinary meaning.” As a result of this alleged error, Weyer contends that he is entitled to a new trial. We are unpersuaded.

The record reflects that in its initial charge to the jury, the trial court instructed the jury without objection:

A person commits sexual exploitation of children when he knowingly entices any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct. Sexually explicit conduct is defined as actual or simulated lewd exhibition of the genitals or pubic area of any person. Visual medium is defined as any photograph or other visual medium. Minor means any person under the age of 18 years of age.

Subsequently, during its deliberations, the jury sent out a note requesting that the trial court “[d]efine entice.” Before responding to the jury’s request, the trial court consulted with the State and Weyer’s trial counsel outside the presence of the jury. The trial court suggested that it instruct the jury that “[w]ords will have their ordinary meaning,” and Weyer’s counsel responded, “It sounds good to me.” The jury then entered the courtroom, and the trial court gave the following supplemental instruction:

Your question is: “Define entice.” In the jury instructions, I defined certain words and certain terms, and when I did you’re required to follow that definition of those words or terms that you find in the jury instructions; otherwise, words that aren’t specifically defined, you use their ordinary meaning. With that instruction, you can go back to the jury room, and continue deliberating.

As the jury was leaving the courtroom to resume deliberating, one juror asked, “Can we get a dictionary?” The trial court declined to provide a dictionary to the jury and reiterated, “The meaning of words come from the ordinary meaning that you use of words from your life experience and the learning that you’ve had in life.” Weyer’s trial counsel did not object to any part of the trial court’s supplemental instruction to the jury.

When a jury does not ask the trial court to recharge its instructions, “but rather to expound on them[,] ... it [is] within the trial court’s sound discretion to determine the need, breadth, and formation of any additional jury instructions.” Holloman v. State, 291 Ga. 338, 344 (7) (729 SE2d 344) (2012). Furthermore, because Weyer did not object to the trial court’s supplemental instructions, we review the instructions only for plain error. See OCGA § 17-8-58 (b); Booker v. State, 322 Ga. App. 257, 260 (2) (744 SE2d 429) (2013).

[There are] four prongs to consider when analyzing a jury charge for plain error: First, there must be an error or defect — some sort of a deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation, punctuation and emphasis omitted.) Wilson v. State, 291 Ga. 458, 459 (729 SE2d 364) (2012). See Woodard v. State, 296 Ga. 803, 806 (2) (771 SE2d 362) (2015); State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).

The trial court committed no error by declining to specifically define the word “entice” for the jury as part of its supplemental instructions.

The rule is that when the charge embraces a section of the Code which contains technical words or expressions, the meaning of which is probably not understood by a person unlearned in the law, the court should so define them as to convey to the jury a correct idea of their meaning, but it is unnecessary for the court, even upon request, to explain words and expressions which are of ordinary understanding and self-explanatory.

(Footnote omitted.) Millsaps v. State, 310 Ga. App. 769, 772 (2) (714 SE2d 661) (2011). “Entice” as used in the statute defining sexual exploitation of children is a word of ordinary understanding, and, therefore, the trial court was authorized to instruct the jury simply to apply the ordinary definition of that term. See Garvey v. State, 176 Ga. App. 268, 274 (5) (335 SE2d 640) (1985) (“Contrary to appellant counsel’s assertion, the trial court did charge the jury on the definition of possession. He asked that the jury apply the ordinary definition of that word. Terms of common usage and meaning need not be specifically defined in the charge to a jury.”). See also Holloman, 291 Ga. at 344 (7) (holding that the trial court did not err in declining to give dictionary definition of “felony” when requested to do so by the jury because “it was within the trial court’s sound discretion to determine the need, breadth, and formation of any additional jury instructions”).

Furthermore, the trial court acted within its discretion in declining the juror’s request for access to a dictionary during deliberations. See Long v. State, 189 Ga. App. 131, 132 (2) (375 SE2d 274) (1988) (where jury requested dictionary or definition of certain terms, trial court acted within its discretion in fashioning supplemental instruction to the jury). Indeed, if a dictionary had been provided, jurors could have then looked up all manner of terms involved in the case, potentially causing prejudice to Weyer. See, e.g., Chambers v. State, 321 Ga. App. 512, 515-522 (1) (739 SE2d 513) (2013) (physical precedent only) (holding that defendant was entitled to new trial, where juror looked up legal definitions on Google and shared the definitions with other jurors); Moore v. State, 172 Ga. App. 844, 846-847 (324 SE2d 760) (1984) (holding that defendant was entitled to new trial, where juror studied book on the law and told jurors what he had learned).

For these combined reasons, we conclude that Weyer has failed to prove that the trial court committed any error in its fashioning of a supplemental instruction to the jury regarding the definition of “entice,” and thus the first prong of the test for plain error has not been satisfied. See Wilson, 291 Ga. at 459. The trial court therefore properly denied Weyer’s motion for a new trial on the asserted ground.

Decided August 6, 2015.

Maryellen Simmons, Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Robert W. Mooradian, Assistant District Attorney, for appellee.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       We have preserved the original spelling, abbreviations, and punctuation of the text messages in our summary of the evidence adduced at trial.

       Weyer and A. M. refer to A. M.’s grandmother as “Mom” or ‘Momma” in the text messages.

       Given our conclusion that no error in the jury instruction has been shown, we need not reach the issue whether trial counsel’s response, “It sounds good to me,” constituted an affirmative waiver of Weyer’s right to assert a claim of plain error on appeal. See Kelly, 290 Ga. at 34 (2), n. 5 (declining to address whether defendant affirmatively waived plain error review).

       See, e.g., Mitchell v. State, 283 Ga. 341, 344 (3) (659 SE2d 356) (2008) (“homicide” was a word of ordinary understanding); Philpot v. State, 268 Ga. 168, 171 (3) (486 SE2d 158) (1997) (“knowingly” and “great risk” were words of ordinary understanding); Millsaps, 310 Ga. App. at 772 (2) (“incitement” was a word of ordinary understanding) , Baird v. State, 201 Ga. App .378 (411 SE2d 332) (1991) (“dangerous weapon” was a phrase of ordinary understanding).


text:
    A15A1330.
    PEREZ v. THE STATE.
    (776 S.E.2d 312)
   PHIPPS, Presiding Judge.

Pro se, Rafael Perez appeals the denial of his motion to withdraw his guilty plea. For reasons explained below, we affirm.

Perez was indicted in Cobb County Superior Court on charges of child molestation and aggravated child molestation. Represented by counsel, Perez entered a negotiated guilty plea to the child molestation charge. On April 12,2011, the trial court sentenced Perez for that crime, and entered an order of nolle prosequi on the other charge.

On December 6, 2013, representing himself, Perez filed in the sentencing court a motion to withdraw his guilty plea. He claimed that his plea counsel had rendered ineffective assistance and that, consequently, his guilty plea had been entered unknowingly and unintelligently.

In denying the motion, the court noted that the term of court during which Perez was sentenced had long expired prior to his filing the motion, and thereupon determined that it was without jurisdiction to entertain the motion. Indeed, “[i]t is well settled that when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea the trial court lacks jurisdiction to allow the withdrawal of the plea.”

Decided August 6, 2015

Rafael Perez, pro se.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

1. Although Perez maintains on appeal that his plea counsel rendered ineffective assistance, Perez has shown no basis to disturb the trial court’s denial of his motion to withdraw guilty plea.

2. We do not reach Perez’s remaining claim of error. Because the issue was not raised below, it is not properly before this court.

Judgment affirmed.

Doyle, C. J., and Boggs, J., concur.

       In 2011, the year Perez was sentenced, the court terms for the Superior Court of Cobb County began on the second Mondays in January, March, May, July, September, and November. OCGA § 15-6-3 (11) (2010, 2011).

        Davis v. State, 274 Ga. 865 (561 SE2d 119) (2002) (citation and punctuation omitted); see Henderson v. State, 295 Ga. 333, 336-337 (2) (759 SE2d 827) (2014).

       See Henderson, supra (upholding trial court’s denial of defendant’s motion to withdraw guilty plea, because - despite defendant’s claim of “manifest injustice in the form of ineffective assistance of counsel” - the trial court had no jurisdiction to entertain the motion filed after the term of court during which the defendant had been sentenced); Dupree v. State, 279 Ga. 613, 614 (619 SE2d 608) (2005) (rejecting the defendant’s claim that manifest injustice from ineffective assistance of counsel permitted him to pursue a motion to withdraw his guilty plea, where the motion was untimely filed); Davis, supra at 865-866 (affirming denial of motion to withdraw guilty plea because, irrespective of defendant’s claim that he was denied effective assistance of counsel during the plea proceedings, the trial court lacked jurisdiction to grant the relief requested, where defendant filed his motion after the expiration of the term of court during which he was sentenced).

       See Mann v. State, 259 Ga. App. 553, 554 (2) (578 SE2d 238) (2003) (“[Ijnasmuch as we are a court for the correction of errors, we do not consider issues which were not raised below and ruled on by the trial court.”) (citation omitted).


author: BARNES, Presiding Judge.

text:
    A13A2100.
    PARKER v. THE STATE.
    (776 S.E.2d 504)
   BARNES, Presiding Judge.

In Parker v. State, 296 Ga. 586 (769 SE2d 329) (2015), the Supreme Court of Georgia reversed Division 1 of the judgment of this Court in Parker v. State, 326 Ga.App. 217 (756 SE2d 300) (2014). We vacate our earlier opinion and adopt the opinion of the Supreme Court as our own. Accordingly, we vacate Parker’s convictions and the order denying his motion for material witness certificates, reverse the trial court’s exclusion of Parker’s proffered documents, and remand the case “to the trial court with direction to issue a new order on Parker’s motion after considering his proffers, along with any other unprivileged evidence submitted by Parker and the State on remand.” Parker, 296 Ga. at 596 (4).

Decided August 10, 2015.

Head, Thomas, Webb & Willis, Gregory A. Willis, for appellant.

Dennis C. Sanders, District Attorney, William P.Doupé, Assistant District Attorney, for appellee.

If the trial court on remand grants Parker’s motion for material witness certificates in whole or in part, and Parker then succeeds in obtaining summonses for the witnesses from the Kentucky court, then a new trial will be necessary. If, on the other hand, the trial court denies the motion again, then the court should reenter the judgments of conviction against Parker, who could then take another appeal challenging the second ruling on his motion and any related issues.

Id. at 597 (4).

Judgment vacated and case remanded with direction.

Miller and Ray, JJ., concur.

       This Court’s rulings on which the Supreme Court did not grant certiorari remain the law of the case. Parker, 296 Ga. at 597, n. 14.


author: Miller, Judge.

text:
    A15A1399.
    PREMIUM FUNDING SOLUTIONS, LLC v. METRO ATLANTA TASK FORCE FOR THE HOMELESS, INC.
    (776 S.E.2d 504)
   Miller, Judge.

The parties to this action, as well as parties in related suits, have been litigating questions of title, right to possession, and rent due on the real property located at the corner of Peachtree and Pine Streets in Atlanta (hereinafter the “Property”) for several years. At least four appeals and five cross-appeals involving the Property are currently pending in the Supreme Court of Georgia (hereinafter the “Related Actions”).

The present action arose when Premium Funding Solutions, LLC filed a dispossessory complaint against the Metro Atlanta Task Force for the Homeless, Inc. (“MATF”). MATF filed a motion to dismiss and plea in abatement, pursuant to OCGA § 9-2-44, contending that this case involves the same parties, the same real property and substantially the same questions as to possession and title to land that are present in the Related Actions which were then pending in the trial court and are now pending on appeal in the Supreme Court of Georgia. Following a hearing, the trial court granted MATF’s plea in abatement and stayed this case pending final resolution of the Related Actions. The trial court found that the Related Actions and this case concern the same parties and ownership of the same land, i.e., the Property.

Premium Funding appeals, contending that (1) OCGA § 9-2-44’s prior pending action rule is inapplicable because the same causes of action are not at issue in this case and the Related Actions and (2) that the trial court erred in not ordering MATF to pay rent into the court registry. For the reasons that follow, we affirm.

“When, as here, a question of law is at issue we owe no deference to the trial court’s ruling and apply a de novo standard of review.” (Citation omitted.) Artson, LLC v. Hudson, 322 Ga. App. 859, 860 (747 SE2d 68) (2013).

The record shows that MATF acquired the Property in 1997, and four years later borrowed $900,000 in order to make improvements. The loans were secured by security deeds on the Property. MATF subsequently entered into forbearance and subordination agreements with the lenders and their successors-in-interest who held security interests in the Property.

In January 2010, a Nevada entity known as Ichthus Community Trust purchased MATF’s loans and security deeds with money borrowed from Premium Funding. Ichthus initiated foreclosure proceedings and, on May 4, 2010, purchased the Property at the foreclosure sale as the sole bidder.

In May 2010, following the foreclosure sale, Ichthus

filed an action in superior court for temporary and permanent injunctive relief against the Task Force, pertinently alleging that Ichthus owned a security interest in and had foreclosed on the [P]roperty occupied by the shelter and that [MATF] was wrongfully occupying and denying it access to the [P]roperty.... Ichthus also filed a dispossessory action in magistrate court against [MATF], but in June 2010, that action was stayed, transferred and consolidated with the injunction action, with Ichthus reserving the right to move forward with the dispossessory claim and [MATF] having the right to respond to that claim. In November 2010, Ichthus dismissed the dispossessory action without prejudice, stating that it had been consolidated with the superior court action.

Metro Atlanta Task Force for the Homeless, Inc. v. Premium Funding Solutions, 321 Ga. App. 100 (741 SE2d 225) (2013). Ichthus subsequently defaulted on its own loan to Premium Funding, and, on February 1, 2011, executed a deed in lieu of foreclosure, thereby transferring the Property to Premium Funding. MATF subsequently filed an action against Premium Funding and multiple other defendants, asserting claims for, inter alia, quiet title, injunctive relief and damages. See id.

Premium Funding then filed a dispossessory action against MATF, which resulted in the superior court’s grant of a writ of possession to Premium Funding in February 2012. In Metro Atlanta Task Force, supra, 321 Ga. App. at 101-102 (1), this Court reversed the grant of the writ of possession to Premium Funding, holding that MATF did not receive the required notice and trial on the issues.

Premium Funding subsequently filed a renewed request for leave to file a dispossessory action, which the trial court granted. MATF then filed an emergency motion for supersedeas and stay in the Supreme Court of Georgia. In denying MATF’s motion, the Supreme Court noted that, in similar circumstances, a plea in abatement has been held to lie where dispossessory proceedings are commenced while other litigation is pending between the same parties in which substantially the same questions to title and possession of the same land are presented. Following the Supreme Court’s denial of its emergency motion, MATF filed a motion to dismiss and plea in abatement, which the trial court granted. This Court subsequently granted Premium Funding’s application for interlocutory review.

1. Premium Funding contends that the trial court erred in interpreting and applying the prior pending action rule because the same causes of action are not at issue in this case and the Related Cases. We disagree.

OCGA § 9-2-5 (a) provides in relevant part: No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter. Similarly, OCGA § 9-2-44 (a) provides: A former recovery or the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement.

(Punctuation omitted.) Sadi Holdings, LLC v. Lib Properties, Ltd., 293 Ga. App. 23, 24 (1) (666 SE2d 446) (2008).

The general rule under OCGA §§ 9-2-5 (a) and 9-2-44 (a) is that when there are two lawsuits involving the same cause of action and the same parties that were filed at different times but that both remain pending in Georgia courts, the later-filed suit must be dismissed.

(Citations and punctuation omitted.) Id. at 24 (1). Moreover,

[a] plea in abatement has been held good even where the causes of action are, technically speaking, legally disparate and rest in opposite parties, if they arise out of the same transaction and if the second suit would resolve the same issues as the first pending suit and would therefore be unnecessary, and consequently oppressive.

(Citations and punctuation omitted.) Schoen v. Home Federal S & L Assn., 154 Ga. App. 68, 69 (267 SE2d 466) (1980). “A judgment in a prior suit adjudicating the legal or equitable title to the same land will estop a later . . . dispossessory proceeding[.]” Id. at 70. Because the Related Actions are on appeal, they are still considered to be pending. See Sadi Holdings, supra, 293 Ga. App. at 24-25 (1).

Here, the pendency of the Related Actions is good cause for abatement of this case because the Related Actions and this case both involve MATF’s alleged rights to title and possession of the same land — the Property. See Shoen, supra, 154 Ga. App. at 71 (dispossessory proceedings should have been abated where cause of action was title and possession of same land in both prior pending suit and dispossessory action). Moreover, MATF has properly asserted its claims of wrongful foreclosure in the prior pending Related Actions and a decision in MATF’s favor on its wrongful foreclosure claims in the Related Actions could estop the present dispossessory proceeding. See Sadi Holdings, supra, 293 Ga. App. at 24-25 (1); see also Atlanta Airmotive v. Newnan-Coweta Airport Auth., 208 Ga. App. 906, 907 (1) (432 SE2d 571) (1993) (holding that trial court erred in denying tenant’s plea in abatement where favorable decision in tenant’s prior pending action on its lease would bar later filed dispossessory action). Accordingly, the trial court did not err in granting MATF’s plea in abatement and staying this action pending the outcome of the appeals in the Related Actions.

Decided August 10, 2015.

David J. Maher, for appellant.

Baker Donelson Bear man Caldwell & Berkowitz, Steven G. Hall, Robert G. Brazier, for appellee.

2. In light of our holding in Division 1, we need not reach Premium Funding’s remaining enumeration of error.

Judgment affirmed.

Andrews, P. J., concurs. Branch, J., concurs in judgment only.

       See Metro Atlanta Task Force for the Homeless, Inc. v. Ichthus Community Trust, S15A1021 (March 24, 2015); Premium Funding Solutions, LLC v. Metro Atlanta Task Force for the Homeless, Inc., S15A1028 (March 24, 2015); Central Atlanta Progress v. Metro Atlanta Task Force for the Homeless, Inc., S15A1027 (March 24, 2015); and Fialkow v. Metro Atlanta Task Force for the Homeless, Inc., S15A1029 (March 24, 2015). See also Central Atlanta Progress v. Metro Atlanta Task Force for the Homeless, Inc., S15X1022 (March 24, 2015); Premium Funding Solutions, LLC v. Metro Atlanta Task Force for the Homeless, Inc., S15X1023 (March 24, 2015);
        Fialkow v. Metro Atlanta Task Force for the Homeless, Inc., S15X1024 (March 24, 2015); Metro Atlanta Task Force for the Homeless, Inc. v. Ichthus Community Trust, S15X1030 (March 24, 2015); Ichthus Community Trust v. Metro Atlanta Task Force for the Homeless, Inc., S15X1031 (March 24, 2015).

       This Court transferred Premium Funding’s application to the Supreme Court of Georgia. The Supreme Court returned the application to this Court.


author: Boggs, Judge.

text:
    A15A0772.
    MURPHY v. THE STATE.
    (776 S.E.2d 657)
   Boggs, Judge.

A jury found DeAnthony Murphy guilty of armed robbery and possession of a firearm during the commission of a felony. The trial court sentenced Murphy to ten years for armed robbery and five years concurrently for possession of a firearm during the commission of a felony. Murphy then filed a motion for new trial asserting that the verdict was without evidence to support it. This motion was denied by the trial court. Murphy now appeals, asserting that the evidence is insufficient for a rational trier of fact to find him guilty beyond a reasonable doubt. Finding no error, we affirm.

When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that on August 21, 2010, Murphy approached the victim in Underground Atlanta and began asking the victim about his jewelry and where he worked. After walking a short distance with the victim, Murphy pulled out a gun and robbed him with the aid of an accomplice. The victim then gave Murphy and the accomplice his belongings, which included $200, two jewelry chains, and a cell phone. After sitting in a state of shock for a moment, the victim began to pursue Murphy on foot while shouting that he had been robbed. The victim chose to chase Murphy rather than the accomplice because the victim assumed his belongings were stashed in the book bag Murphy was carrying.

The victim tackled Murphy and retrieved the bag. The bag did not contain the victim’s belongings, but did contain the gun Murphy used in the commission of the robbery along with various other items. The victim grabbed the gun as a security guard approached calling for assistance. Murphy was apprehended, and the victim turned over to police the handgun he had retrieved from Murphy’s bag.

Murphy asserts that the evidence presented is insufficient for conviction of armed robbery or possession of a firearm during the commission of a felony. We disagree. A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. OCGA § 16-8-41 (a). To commit the offense of possession of a firearm during the commission of a felony, a person must have had a firearm within arm’s reach during the commission of the felony. OCGA § 16-11-106 (b).

To support the elements of these offenses, the evidence presented at trial included the victim’s testimony and the testimony of a security guard and a bystander, both of whom observed the victim chasing Murphy. The handgun retrieved from Murphy’s book bag was also admitted into evidence. Despite this evidence, Murphy asserts that the evidence is insufficient because there were no independent eyewitnesses or forensic evidence, video surveillance footage was available at Underground Atlanta but never viewed, and the lead detective was absent from the trial.

Decided August 17, 2015.

Richard W. Marks, for appellant.

While Murphy points to evidence that was not admitted, the State was nonetheless able to meet its burden of proof. None of the other witnesses besides the victim saw the robbery in progress, but “[t]he testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-14-8. If that single witness is an accomplice to a crime, further circumstantial evidence may be required. Here, however, the victim of the crime testified and identified Murphy as the man who robbed him. Furthermore, the testimony of the security guard and the bystander align with the victim’s account of the robbery. The victim was also able to identify the handgun at trial. This evidence is sufficient to lead a rational juror to conclude beyond a reasonable doubt that Murphy robbed the victim with a firearm.

Murphy also emphasizes minor conflicts in the details of the witnesses’ testimony and the victim’s police reports. The testimony of the victim and the bystander conflict on how the gun in question was dropped. And the victim’s police reports conflict on whether the accomplice placed the victim’s belongings in Murphy’s bag or if he held on to the items and ran off. However, these minor details do not invalidate Murphy’s conviction.

It is the duty of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citation omitted.) Lopez-Vasquez v. State, 331 Ga. App. 570, 570 (1) (771 SE2d 218) (2015).

With the combined testimony of the witnesses at trial, the State has met its burden of proof and provided sufficient evidence to support the charges of armed robbery and possession of a firearm during the commission of a felony.

Judgment affirmed.

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

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellee.


text:
    A15A1578.
    ROGERS v. BALILES.
    (776 S.E.2d 659)
   PHIPPS, Presiding Judge.

We granted the discretionary appeal application of Kimberly Rogers to review an award of attorney fees in the amount of $43,800 to her ex-husband David Baliles, pursuant to OCGA § 19-6-2. Because the trial court failed to include in its order factual findings to support the award of attorney fees, we reverse the award and remand the case.

“Georgia appellate courts generally apply an abuse of discretion standard in cases involving a claim of error in the decision to award or deny attorney fees. Generally, an award of attorney fees is not available in Georgia unless authorized by statute or contract.”

The relevant facts are as follows. Rogers and Baliles were divorced in 2010, and have one minor child together. In December 2013, Baliles filed a motion for contempt, alleging that Rogers had violated the parties’ divorce decree by withholding visitation with their child since August 19, 2013; Baliles also requested therein that he be awarded attorney fees. Baliles attached to his motion for contempt a copy of the parties’ divorce decree, permanent parenting plan, and marriage settlement agreement.

After a bench trial on the contempt motion, the court entered an order in September 2014, finding Rogers in contempt of court. The court found that Rogers, who resided in Alabama, had withheld visitation after alleging that Baliles’s brother had sexually abused the child, and that after state agencies and a police agency concluded that the allegation was unfounded, Rogers continued to withhold visitation in wilful disregard of the court’s orders. Later, in an order entered on October 8, 2014, the trial court clarified a provision of its September 2014 contempt order regarding visitation and stated that “[c]ounsel for the parties may submit their attorney fees briefs to this Court within ten (10) days of the issuance of this Order.”

Rogers acknowledges that Baliles subsequently “sent a letter to [the trial judge] requesting an award of attorney’s fees and attaching a copy of his billing statement.” It does not appear from the appellate record that Rogers filed or otherwise submitted to the trial court any response to Baliles’s letter. The trial court entered an order awarding attorney fees to Baliles pursuant to OCGA § 19-6-2. Rogers’s discretionary appeal application and appeal followed, wherein she contends that the trial court erred in ordering her to pay Baliles’s attorney fees because no evidence of the parties’ financial circumstances had been admitted in evidence at the trial on the contempt motion or thereafter, upon which the trial court could base its attorney fee award.

OCGA § 19-6-2 (a) (1) provides, in relevant part:

The grant of attorney’s fees as a part of the expenses of litigation, made at any time during the pendency of the litigation, whether the action is for alimony, divorce and alimony, or contempt of court arising out of... a divorce ... case, including but not limited to contempt of court orders involving ... child visitation rights, shall be ... [w]ithin the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any[.]

The trial court expressly stated in its order awarding Baliles attorney fees that it had considered the financial circumstances of the parties; but the court did not include any findings as to those circumstances. The order pertinently states:

Plaintiff has submitted an Application/Motion for Attorney’s Fees. The same having been presented to the Court, and the Court having reviewed the Application, any Response, Exhibits, Pleadings, and all other matters of record, and after review of the controlling and applicable law, and the Court having considered the financial circumstances of both parties, the willingness of the parties to reach settlement in the matter, and the reasonableness of the attorney’s fees sought for the legal services the Court has determined to be necessary in the case, the Court finds as follows: The Plaintiff sought an award of attorney fees in the interests of justice based upon the disparate incomes and financial resources of the parties. The Court finds that an award of attorney fees pursuant to OCGA § 19-6-2 for the Plaintiff is proper.

In support of the trial court’s order, Baliles argues that the trial court had sufficient evidence of the parties’ financial circumstances and that the absence of “detail about [Rogers’s] current financial position” was Rogers’s fault for failing to respond to discovery requests to provide documents about such information. Citing a page from the marriage settlement agreement (which was attached as an exhibit to the motion for contempt), Baliles asserts: “The Court’s record included Ms. Rogers’ income of $6,666.00 per month as of the date of divorce and an additional $1,302.00 in monthly child support.” Citing to trial testimony, Baliles asserts: “Ms. Rogers testified that as of August, 2014, she was a licensed psychologist practicing for five years. She works five days a week, six or seven hours a day, working 2V2 days at her home office and 2V2 days at a rehab hospital. She has remarried and her husband has fulltime [sic] employment.” This evidence, Baliles argues, was “sufficient evidence of [Rogers’s] financial circumstances to support the Court’s Order.”

“ [I] f a trial court fails to make findings of fact sufficient to support an award of attorney fees under... OCGA § 19-6-2 ..., the case must be remanded to the trial court for an explanation of the statutory basis for the award and any findings necessary to support it.” Instead of making factual findings to support the order, the trial court merely recited sources upon which it had relied in coming to its conclusion. Thus, pretermitting whether the evidence upon which Baliles relies was sufficient to support the court’s order, because the trial court failed to make factual findings to support the award of attorney fees in its order, we must reverse the award and remand the case.

Notably, the language the trial court used in its order — i.e., that it had considered “the willingness of the parties to reach settlement in the matter, and the reasonableness of the attorney’s fees sought for the legal services the Court has determined to be necessary” — suggests that the award was based upon OCGA § 9-15-14, and not OCGA § 19-6-2, upon which the trial court’s award was purportedly based. The Supreme Court of Georgia has stated that “[a]n award under OCGA § 19-6-2 depends on the financial circumstances of the parties, not their wrongdoing; it is to be made with the purpose of ensuring effective representation of both spouses in an action arising out of a divorce.” Here, the trial court failed to include any findings as to the financial circumstances of the parties, or how its award was necessary to ensure that Baliles, whose income at the time of the divorce was higher than Rogers’s, received effective representation in the underlying action. “Thus, the issue of attorney fees must be remanded for an explanation of the statutory basis for the award and any findings necessary to support it.”

Decided August 19, 2015.

Prebula & Associates, Mary A. Prebula, for appellant.

Gibson, Deal & Fletcher, William A. Fletcher, Jr., for appellee.

Judgment reversed and case remanded.

Doyle, C. J., and Boggs, J., concur.

        Ansell v. Ansell, 328 Ga. App. 586, 590 (2) (759 SE2d 916) (2014) (punctuation and footnotes omitted).

       Rogers points out, however, that that letter was not included in the appellate record. Indeed, we have not found such letter in our review of the appellate record, and Baliles has not in his appeal brief provided a record citation for the letter.

       (Emphasis supplied.)

        Holloway v. Holloway, 288 Ga. 147, 150 (2) (702 SE2d 132) (2010) (citation and punctuation omitted).

       Id.

       (Emphasis supplied.)

       OCGA § 9-15-14 (a) authorizes an award of “reasonable and necessary attorney’s fees and expenses of litigation”; OCGA § 9-15-14 (b) authorizes an award of “reasonable and necessary attorney’s fees and expenses of litigation ... if [the court] finds that an attorney or party unnecessarily expanded the proceeding by . .. improper conduct.”

        Cason v. Cason, 281 Ga. 296, 299-300 (3) (637 SE2d 716) (2006) (citations and punctuation omitted). See also O’Keefe v. O’Keefe, 285 Ga. 805, 806 (684 SE2d 266) (2009) (the purpose of an award under OCGA § 19-6-2 is not punitive but to make sure that both parties are effectively represented so that all issues can be fully and fairly resolved).

        Cason, supra at 300 (3) (citation omitted); see O’Keefe, supra; Leggette v. Leggette, 284 Ga. 432, 433 (2) (668 SE2d 251) (2008) (attorney fee award reversed for failure to include an explanation of the statutory basis of the award and findings necessary to support it); Wilson v. Wilson, 282 Ga. 728, 734 (8) (653 SE2d 702) (2007) (same).


author: ANDREWS, Presiding Judge.

text:
    A13A2175.
    BRANTLEY et al. v. DUBOIS et al.
    (776 S.E.2d 662)
   ANDREWS, Presiding Judge.

In Brantley v. Dubois, 327 Ga. App. 14 (755 SE2d 351) (2014), we reversed the judgment of the State Court of Glynn County denying the defendants’ renewed motion to dismiss or, in the alternative, motion for summary judgment based upon the plaintiffs’ alleged failure to comply with the affidavit requirement of OCGA §§ 9-11-9.1 and 24-7-702. In Dubois v. Brantley, 297 Ga. 575 (775 SE2d 512) (2015), the Supreme Court reversed. Accordingly, this Court’s prior judgment is vacated; the judgment of the Supreme Court is made the judgment of this Court; and the judgment of the State Court of Glynn County denying the defendants’ renewed motion to dismiss or, in the alternative, motion for summary judgment is affirmed.

Decided August 20, 2015.

Hall Booth Smith, N. Daniel Lovein, Charles A. Dorminy, William S. Mann, for appellants.

Savage & Turner, Brent J. Savage, Kathryn H. Pinckney, for appellees.

Judgment affirmed.

Dillard and McMillian, JJ., concur.


author: DOYLE, Chief Judge.

text:
    A15A2001.
    SHOENTHAL et al. v. SHOENTHAL et al.
    (776 S.E.2d 663)
   DOYLE, Chief Judge.

Rachel and Rebecca Shoenthal (collectively, “the plaintiffs”) filed a complaint against the DeKalb County Employees Retirement System Pension Board, members of the Board (collectively, “the Board”), and Fran Shoenthal, contending that the Board wrongfully disbursed their father’s entire pension benefits to Fran instead of disbursing a portion to them. The Board filed a crossclaim against Fran. The trial court subsequently granted the Board’s and Fran’s motions for judgment on the pleadings, and the plaintiffs filed this direct appeal. We dismiss this appeal as premature, for the reasons that follow.

The plaintiffs asserted claims for declaratory judgment, mandamus, breach of contract, fraud, conversion, money had and received, and attorney fees, alleging that the Board wrongfully disbursed all of their late father’s pension benefits to his wife, Fran, instead of disbursing a portion to them in accordance with a change of beneficiary form their father completed a week before his death. The Board filed a crossclaim against Fran, solely seeking to recover from her any monies the trial court might determine were wrongfully disbursed to her. The trial court subsequently granted the Board’s and Fran’s motions for judgment on the pleadings as to the plaintiffs’ claims against them; the order did not mention nor dispose of the Board’s crossclaim against Fran. The plaintiffs filed a direct appeal, and the Board and Fran have moved to dismiss the appeal on the ground that it is premature. We agree.

Decided August 20, 2015.

Balch & Bingham, Christopher S. Anulewicz, Brooke W. Gram, for appellants.

In a case involving multiple parties or multiple claims, a decision adjudicating fewer than all the claims or the rights and liabilities of less than all the parties is not a final judgment. In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) or there must be compliance with the interlocutory appeal requirements of OCGA § 5-6-34 (b). Where neither of these code sections are followed, the appeal is premature and must be dismissed.

Here, because the Board’s crossclaim against Fran, albeit a derivative claim, remains pending below, and the trial court did not direct the entry of final judgment in accordance with OCGA § 9-11-54 (b), the challenged order is not a final order. While we recognize that the parties in this case all agree that the trial court should dismiss the crossclaim in light of its ruling granting the Board’s motion for summary judgment, this Court does not obtain jurisdiction over an order that is not final, and under the circumstances presented here, the order before us is not a final, appealable order. Rather, the order was appealable only through the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b). The plaintiffs’ failure to follow the interlocutory appeal procedure deprives us of jurisdiction over this direct appeal. Accordingly, the Board’s and Fran Shoenthal’s motions to dismiss are hereby granted, and this appeal is dismissed for lack of jurisdiction.

Appeal dismissed.

Phipps, P J., and Boggs, J., concur.

Zimmerman & Associates, Barry L. Zimmerman, Brad J. Zimmerman; Elarbee, Thompson, Sapp & Wilson, R. Read Gignilliat, Richard M. Escoffery, for appellees.

       The trial court found that although the plaintiffs’ father signed and dated a change of beneficiary form before his death, he placed it in his desk drawer and never mailed or delivered the form to the Board.

       The style of the order is “ORDER,” and although there is a stamped box stating “FINAL ORDER (CASE DISPOSITION),” the initials in the box are not those of the trial judge.

       (Citation and punctuation omitted.) Johnson v. Hosp. Corp. of America, 192 Ga. App. 628, 629 (385 SE2d 731) (1989), quoting Spivey v. Rogers, 167 Ga. App. 729 (307 SE2d 677) (1983); see also Synovus Bank v. Peachtree Factory Center, Inc., 331 Ga. App. 628, 629-630 (770 SE2d 887) (2015). Compare Cherry v. Hersch, 193 Ga.App. 471, 472 (1) (388 SE2d 64) (1989) (because the trial court entered an order styled “final judgment” in response to the plaintiff’s request to certify a summary judgment as a final judgment and because the order directed the clerk to enter final judgment in favor of the defendants, the order is deemed final notwithstanding the fact that it did not contain OCGA § 9-11-54 (b) language specifically making “ ‘an express determination that there is no just reason for delay’ ”).

       See Johnson, 192 Ga. App. at 629.

       Oral argument, which was previously granted in this case, is hereby canceled.


text:
    A13A1671.
    ESHLEMAN v. KEY et al.
    (776 S.E.2d 670)
    Decided August 21, 2015.

      Hall Booth Smith, James H. Fisher II, Denise W. Spitalnick, Christopher J. Watkins, Duane D. Pritchett, Kendric E. Smith, for appellant.

      Andrew W. Jones, M. Chase Swanson, for appellees.
   PHIPPS, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court of Georgia in Eshleman v. Key, 297 Ga. 364 (774 SE2d 96) (2015), our decision in Eshleman v. Key, 326 Ga. App. 883 (755 SE2d 926) (2014), is hereby vacated and the judgment of the Supreme Court is made .the judgment of this court.

Judgment reversed.

Ellington, R J., and Branch, J., concur.