text:
    A16A1948.
    In re ESTATE OF JAMES LYNN HILL.
    (796 SE2d 748)
   Boggs, Judge.

James David Hill appeals from a superior court order granting summary judgment in favor of Erica Paul, the executrix of the estate of James Lynn Hill, on the issue of whether Hill’s untimely caveat to the will in probate court should be dismissed. On appeal, Hill contends that the superior court erred by rejecting his claim that the executrix waived her right to assert default as a ground to dismiss his caveat. For the reasons explained below, we agree and reverse.

The record shows that after Paul filed a petition to probate the will of James L. Hill, a notice was sent to his son James David Hill by certified mail informing him of the deadline to object to the petition. Hill subsequently filed an objection or caveat to the petition alleging that his father’s will had been executed “under duress and under the undue influence of. . . Paul who befriended James L. Hill with the specific intent to receive his estate.” He also asserted that his father was not of sound mind at the time he signed and executed the will. Hill admits that his objection was filed over one month late. Nowhere in the objection did Hill raise a defense based upon improper service.

Immediately after Hill objected, Paul retained different counsel. Five months later, in April 2015, Paul’s counsel filed a notice to take Hill’s deposition. After Hill’s counsel withdrew, a status conference was scheduled, at the request of Paul, for July 2015. On the day of the status conference, one of Hill’s current attorneys entered an appearance on his behalf. The probate court scheduled the case for a trial to be held on October 26, 2015.

On September 22, 2015, a second, local attorney entered an appearance on behalf of Hill. On September 30, 2015, Hill served requests for production of documents to six different nonparties and a notice of deposition for the attorney who witnessed the will. On the same day, Hill requested a 30-day continuance because the nonparty discovery would not be due before the scheduled trial date, and receipt of the discovery was necessary before scheduling Paul’s deposition.

On October 5, 2015, Paul took Hill’s deposition. The majority of the deposition was devoted to exploring Hill’s allegations of undue influence and mental incompetence. At one point in his deposition, he verified that he received a copy of the petition to probate his father’s will by certified mail on September 15, 2014, and that he had signed a return receipt for it.

On October 13, 2015, Paul’s counsel wrote a letter to the probate court judge objecting to the request for a continuance. While this letter acknowledged counsel’s awareness that Hill’s caveat was untimely, counsel did not move to dismiss Hill’s caveat. Instead, counsel opposed the motion for continuance stating, “there is no reason why a caveat to a will cannot be prepared and tried within 13 months after issuance of Letters Testamentary.”

On October 21, 2015, the probate court rescheduled the trial for November 11, 2015. Hill filed a second motion for continuance based upon his duties as a lieutenant commander in the Navy working as an aviation preflight indoctrination director at a naval training base in Pensacola, Florida. Hill explained that the Navy denied his prompt request for leave to attend the hearing and included a notarized statement to that effect from his commanding officer. The probate court impliedly granted the second request for a continuance by scheduling the trial for a later date — December 18, 2015.

On December 10, 2015, counsel attended an “emergency status conference” in the probate court judge’s chambers, during which Paul’s counsel made an oral motion to dismiss the caveat because it had been filed one month late. The following day, the probate court judge issued an order granting the motion. On January 8, 2016, Hill filed a notice of de novo appeal to superior court. See OCGA § 5-3-29.

Paul moved for summary judgment based upon Hill’s failure to file a timely caveat. In a written order granting Paul’s summary judgment motion, the superior court concluded, “After careful consideration of the Briefs of Authority as well as oral argument particularly concerning the issue of estoppel raised by [Hill], this Court finds that there is no triable issues of fact and as a matter of law Summary Judgment should be GRANTED.” Hill then filed a timely notice of appeal to this court. See OCGA § 5-6-34 (a) (9) (direct appeal for “orders sustaining motions to dismiss a caveat to the probate of a will”).

On appeal from the decision of a probate court, the superior court conducts a de novo investigation of the probate court’s proceedings, and in doing so, will consider the records from the probate court, as well as other competent evidence which may not have been presented to the probate court. It is not the province of the superior court on such an appeal to review and affirm, but to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.

(Citations and punctuation omitted.) In re Estate of Wade, 331 Ga. App. 535, 536 (771 SE2d 214) (2015). We therefore review this case on appeal as we would any other direct appeal from superior court.

Although titled a motion for summary judgment, Paul’s motion is more accurately described as a motion for entry of default judgment. See OCGA § 15-9-47 (entry of default judgment in probate court for failure to timely file an answer or caveat) ;OCGA § 53-11-10 (a) (time for filing an objection in probate court). We review rulings for entry of default judgment for abuse of discretion. Laurel Baye Healthcare of Macon v. Neubauer, 315 Ga. App. 474, 475 (726 SE2d 670) (2012); Edenfield & Cox, P.C. v. Mack, 282 Ga. App. 816 (640 SE2d 343) (2006).

In Laurel Baye, we reversed the trial court’s entry of default judgment because the plaintiff waived her right to seek a default judgment. 315 Ga. App. at 478 (1). In so holding we noted that “whenever possible cases should be decided on their merits for default judgment is not favored in law. [Cit.]” (Citation and punctuation omitted.) Id. at 476 (1), n. 1.

The statutory right to judgment following default is not an indefeasible right, but may or may not be asserted, and may be waived by a plaintiff by proceeding with the action without taking advantage of his right to judgment in a timely and proper manner. Such waiver need not be expressed, but may be implied in law by conduct or circumstances inconsistent with the right to judgment.

(Citation omitted.) Id. at 476 (1). Accordingly, a plaintiff can waive the right to seek a default judgment by

allowing the defaulting party to plead, extending the time to plead, joining issue upon the pleadings, going to trial on the merits, announcing ready for trial and introducing evidence on the merits, and failing to move for a default judgment or otherwise raise any issue of default before the appeal.

(Citation omitted.) Id. Other conduct showing waiver includes: “conducting discovery, responding to motions with evidence in support of the merits of his case, announcing ready and requesting that the case be put on the trial calendar, and failing to move for default judgment before summary judgment was granted to the defendants.” Id. In Laurel Baye, we found the plaintiff impliedly waived her right to a default judgment by waiting a year and a half to file a motion for default judgment, engaging in discovery after the defendant no longer had a right to open the default as a matter of right and had not filed a motion to open default, moving to compel discovery, and moving to extend the time in which to conduct discovery. Id. at 477-478 (1).

Here, Paul took Hill’s deposition almost a year after Hill failed to timely file his caveat, and the vast majority of questions were devoted to the merits of Hill’s objections to the validity of the will. After taking Hill’s deposition, Paul opposed Hill’s requests for a continuance and sought a trial. It was not until eight days before the third scheduled trial date and fifteen months after Hill’s caveat was untimely filed that Paul orally moved to dismiss Hill’s caveat. As this lengthy course of conduct was “entirely inconsistent with an intent to raise or rely upon a default judgment,” Laurel Baye, supra, 315 Ga. App. at 478 (1), it resulted in a waiver of Paul’s right to default under OCGA § 15-9-47. See also Davis v. Wallace, 310 Ga. App. 340, 344 (1) (713 SE2d 446) (2011) (holding “motion for default was too little too late” in case where plaintiff conducted discovery, responded to motions with evidence in support of merits of case, and requested that case be put on trial calendar); Ward v. Swartz, 285 Ga. App. 788, 790 (2) (648 SE2d 114) (2007) (one factor in support of plaintiff’s waiver of right to default judgment was plaintiff’s request that case be put on jury trial calendar). We therefore reverse the superior court’s grant of summary judgment in favor of Paul.

Decided December 30, 2016.

Hall Williamson & Hart, Alexander H. Hart; Bryson Law Firm, Lindsey G. Cambardella, for appellant.

Watson Spence, C. Richard Langley, for appellee.

Paul’s motion for a frivolous appeal penalty under Court of Appeals Rule 15 is denied.

Judgment reversed.

Barnes, P. J., and Rickman, J., concur.

       This petition was filed by an attorney who also witnessed the will.

       This Code section provides, in pertinent part:
      . . . [I]f in any case pending before the probate court an answer, caveat, or other responsive pleading has not been filed within the time required by law or by lawful order of the court, the case shall automatically become in default unless the time for filing the answer, caveat, or other responsive pleading has been extended as provided by law. The petitioner at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the petition or other pleadings filed in the matter were supported by proper evidence. . . .

       This Code section provides, in pertinent part:
      ... For persons within the continental United States who are served by registered or certified mail or statutory overnight delivery, return receipt requested, the date on or before any objection is required to be filed shall not be less than 13 days from the date of mailing; provided, however, that if a return receipt from any recipient is received by the court within 13 days from the date of mailing, the date on or before any objection is required to be filed by such recipient shall be ten days from the date of receipt shown on such return receipt. . . .

       We are not persuaded by Paul’s argument that she could not move to dismiss the caveat until after she had taken Hill’s deposition. Paul could have supported a motion to dismiss with the certified mail return receipt showing Hill’s receipt of the notice of the time period for filing an objection to her petition to probate the will. Additionally, Paul waited another two months, during which time she objected to a trial continuance, before orally moving the probate court to dismiss the caveat.

       Our opinion in In re Estate of Loyd, 328 Ga. App. 287 (761 SE2d 833) (2014) does not require a different result because in that case the issue of waiver by the petitioner was neither raised nor ruled upon. “Issues merely lurking in the record, neither brought to the court’s attention nor expressly ruled upon, have not been decided so as to constitute precedent.” (Citation omitted.) Studio X v. Weener, Mason & Nathan, LLP, 276 Ga. App. 652, 655 (624 SE2d 157) (2005).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A14A1780.
    BICKERSTAFF v. SUNTRUST BANK.
    (796 SE2d 9)
   Ray, Judge.

In Bickerstaff v. SunTrust Bank, 299 Ga. 459 (788 SE2d 787) (2016) (Bickerstaff II), the Supreme Court of Georgia reversed our previous decision in Bickerstaff v. SunTrust Bank, 332 Ga. App. 121 (770 SE2d 903) (2015) (Bickerstaff I), and remanded the case to this Court with the direction that we address an alleged error of the trial court which we had deemed moot in our earlier opinion. See Bickerstaff II, supra at 470 (3). Accordingly, we adopt the judgment of the Supreme Court as our own and reverse the trial court’s decision. We address the remaining alleged error, as discussed more fully below, by remanding the case to the trial court.

Bickerstaff I involved a dispute between bank customer Jeff Bickerstaff, Jr., and SunTrust over whether the parties were required to arbitrate their disagreement over allegedly usurious bank card overdraft fees. Bickerstaff I, supra at 121-122. We affirmed the trial court’s denial of class certification. Id. The Supreme Court reversed. It found, inter alia, that

Decided January 5, 2017.

C. Ronald Ellington; Bondurant, Mixson & Elmore, Michael B. Terry, Steven J. Rosenwasser, Jason J. Carter; The Finley Firm, J. Benjamin Finley, MaryK. Rogers, MaryBeth V. Gibson , for appellant.

the terms of the arbitration rejection provision of SunTrust’s deposit agreement do not prevent Bickerstaff ⅛ class action complaint from tolling the contractual limitation for rejecting that provision on behalf of all putative class members until such time as the class may be certified and each member makes the election to opt out or remain in the class. Accordingly, the numerosity requirement of OCGA § 9-11-23 (a) (1) for pursuing a class complaint is not defeated on this ground.

Bickerstaff II, supra at 470 (3). As noted above, the Supreme Court also directed us to address whether the trial court erred in failing to find that SunTrust was barred from enforcing its arbitration clause against putative class members other than Bickerstaff. See Bickerstaff I, supra at 132 (3).

On remand to this Court, Bickerstaff has filed a suggestion of mootness and request for immediate remand, arguing that the Supreme Court’s determination that absent class members may reject arbitration by remaining in the class moots any need to determine whether SunTrust waived its right to compel arbitration, and that an opinion on this issue would be advisory. SunTrust responds that the issue is not moot, but is unripe for consideration because no class has been certified.

The trial court has not ruled on the issue of whether SunTrust waived a right to compel arbitration against putative class members other than Bickerstaff. We decline to address this in the first instance here, see generally Superior Roofing Co. of Ga. v. American Professional Risk Svcs., 323 Ga. App. 416, 423 (744 SE2d 400) (2013), and instead remand the matter to the trial court for determination, if necessary, if and when a class is certified.

Judgment reversed and case remanded with direction.

McFadden, P. J., and Andrews, J., concur.

Troutman Sanders, William N. Withrow, Jr., Jaime L. Theriot, Lindsey B. Mann, for appellee.


author: DILLARD, Presiding Judge.

text:
    A16A1791.
    MOORE v. CITY OF STATESBORO et al.
    (796 SE2d 10)
   DILLARD, Presiding Judge.

Alvin Lavon Moore, proceeding pro se, appeals from the trial court’s denial of his request to proceed in forma pauperis, as well as from its denial of the filing of his complaint under OCGA § 9-15-2 (d). Moore originally filed this appeal in the Supreme Court of Georgia, which then transferred the case to this Court. The arguments in Moore’s pro se appellate brief are somewhat difficult to decipher, but generously construing the allegations, he contends that the trial court erred in (1) summarily denying his request to proceed as a pauper and (2) denying the filing of his pleading under OCGA § 9-15-2 (d). Moore also complains about defects in the appellate record, which does not include his complaint/petition for relief. Because the trial court’s order and the state of the record do not permit us to conduct meaningful appellate review, we vacate the trial court’s order and remand for further proceedings consistent with this opinion.

The record before us consists of three documents: (1) an order transferring the case to this Court from the Supreme Court of Georgia, (2) Moore’s notice of appeal, and (3) the order denying Moore’s pauper’s affidavit and the filing of his petition. The record transmitted from the trial court is otherwise bereft of material for this Court’s review. Moore attributes this defect to the trial court clerk, who he asserts returned the complaint/petition to him and advised that the court would only consider his request to proceed as a pauper. And indeed, the order from which Moore appeals contains this handwritten notation: “[r]eturned [p]etition to Pit. 12/03/2015.”

The appealed order otherwise states in its entirety as follows:

In accordance with O.C.G.A. § 9-15-2(d), the Court has examined the Plaintiff’s request to proceed in forma pau-peris together with the attached complaint for declaratory and injunctive relief and finds that the same “shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading.”
Wherefore, the Plaintiff’s application to proceed informa [sic] pauperis is hereby DENIED and the Court hereby DENIES filing of the petition.
The Defendant [sic] is further notified that the Defendant [sic] has thirty (30) days to appeal the dismissal of this motion to the appropriate appellate court.

Thus, the trial court denied the filing of Moore’s petition under OCGA § 9-15-2 (d) and also summarily denied his request to proceed as a pauper.

1. On appeal, Moore takes issue with the trial court’s denial of the filing of his petition under OCGA § 9-15-2 (d) and also complains about the above-mentioned issues with the appellate record. OCGA § 9-15-2 (d) provides:

When a civil action is presented for filing under this Code section by a party who is not represented by an attorney, the clerk of court shall not file the matter but shall present the complaint or other initial pleading to a judge of the court. The judge shall review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading. If the judge does not so find, then the judge shall enter an order allowing filing and shall return the pleading to the clerk for filing as in other cases. . . .

Importantly, OCGA § 9-15-2 (d) also provides that “[a]n order denying filing shall be appealable in the same manner as an order dismissing an action.”

On appeal from a denial under OCGA § 9-15-2 (d), we construe the complaint “in the light most favorable to the losing party,” keeping in mind that “pro se complaints are not held to the stringent standards of formal pleadings.” Nor should they be. Indeed, here in Georgia, we “hold sacred the right of access to the courts by the rich and the poor alike for the resolution of legal disputes.” This is why we have previously (and rightly) emphasized that “[t]rial courts should exercise their authority under OCGA § 9-15-2 (d) cautiously and sparingly.” But here, we are unable to review the trial court’s determination made under OCGA § 9-15-2 (d) because the record does not contain a copy of the pleading for our review. Suffice it to say, in order for this Court to conduct meaningful appellate review, as contemplated by OCGA § 9-15-2 (d), a copy of the “denied complaint” must be preserved as part of the record. And because this was not done, we have no choice but to vacate the trial court’s order as to its findings under OCGA § 9-15-2 (d), remand to the trial court, and direct it to supplement the record with the relevant pleading, so that this Court may review same as permitted by that statute.

2. Next, Moore contends that the trial court erred in denying his request to proceed as a pauper. While it is generally true that “[t]he ruling of the trial court on all issues of fact concerning the ability of a party to pay costs or give bond is final under the provisions of this law and is not subject to review,” the trial court here summarily denied Moore’s request to proceed as a pauper when concluding that his petition for relief failed to state a cause of action. And, once again, the record before us does not contain the request/affidavit or any traverse affidavit (although Moore claims that his request was untraversed). Upon remand, the record should be supplemented with the request to proceed in forma pauperis, which should likewise be considered on the merits.

Decided January 6, 2017.

Alvin L. Moore, pro se.

Chambless, Higdon, Richardson, Katz & Griggs, Mary M. Katz; Wright & Edwards, J. Alvin Leaphart IV, for appellees.

Accordingly, for all of the foregoing reasons, we vacate the trial court’s order and remand for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

Reese and Bethel, JJ., concur.

       The Supreme Court of Georgia determined that Moore’s request for a declaratory judgment did not support the exercise of its jurisdiction because a declaratory judgment is neither an extraordinary remedy nor an action implicating that Court’s equitable jurisdiction. See Supreme Court Order in Case No. S16A1004 (April 26, 2016). Our Supreme Court further determined that because there was no ruling below on Moore’s request for injunctive relief, there was no substantive issue on appeal involving the legality or propriety of equitable relief. Id. Finally, the Court determined that its jurisdiction was not implicated on the basis of mandamus because Moore did not request such relief from the trial court. Id. Thus, because Moore’s asserted bases for jurisdiction were unsupported by the record, the Supreme Court transferred the case to this Court. Id.

        Collier v. Kroger Co., 299 Ga. App. 660, 660 (1) (683 SE2d 625) (2009); accord Grant v. Byrd, 265 Ga. 684, 685 (1) (461 SE2d 871) (1995).

        Collier, 299 Ga. App. at 660 (1) (punctuation omitted); accord Moore v. First Family Financial Svcs., 246 Ga. App. 89, 89 (539 SE2d 598) (2000).

        Verdi v. Wilkinson Cty., 288 Ga. App. 856, 858-59 (655 SE2d 642) (2007); see Ga. Const. art. I, § I, ¶ IX (“The people have the right to assemble peaceably for their common good and to apply by petition or remonstrance to those vested with the powers of government for redress of grievances.”).

        Verdi, 288 Ga. App. at 859; see also Thompson v. Reichert, 318 Ga. App. 23, 25 (733 SE2d 342) (2012) (“[A] trial court must exercise great caution before refusing to file a pro se complaint) ] pursuant to OCGA § 9-15-2 (d) . . . .”).

        Cf., e.g., Collier, 299 Ga. App. at 660-62 (1), (2) (reviewing allegations of pro se appellant’s complaint before concluding that it failed “to raise a justiciable issue of law or fact” and that, therefore, trial court properly denied the pro se filing of the complaint under OCGA § 9-15-2 (d)); Moore, 246 Ga. App. at 89 (noting that allegations of complaint have been reviewed by the Court before reversing denial under OCGA § 9-15-2 (d) because appellant “alleged a justiciable issue of law or fact”); McBride v. Gaither, 203 Ga. App. 885, 885-86 (418 SE2d 67) (1992) (reviewing allegations of complaints before determining that “the trial court did not err in refusing to allow the filing of these complaints pursuant to OCGA § 9-15-2 (d) for a complete absence of any justiciable issue of law or fact upon which it could reasonably be believed that the court could grant any relief against any party named in the pleadings” (emphasis omitted)).

        See OCGA § 9-15-2 (d) (“An order denying filing shall be appealable in the same manner as an order dismissing an action.”).

        Grace v. Caldwell, 231 Ga. 407, 409 (4) (202 SE2d 49) (1973) (emphasis supplied); see also D’Zesati v. Poole, 174 Ga. App. 142, 143 (329 SE2d 280) (1985) (“The trial court’s ruling on all issues of fact concerning the ability of a party to pay costs is final and not subject to review.” (citation omitted)).

        See OCGA § 9-15-2 (a) (1) (“When any party, plaintiff or defendant, in any action or proceeding held in any court in this state is unable to pay any deposit, fee, or other cost which is normally required in the court, if the party shall subscribe an affidavit to the effect that because of his indigence he is unable to pay the costs, the party shall be relieved from paying the costs and his rights shall be the same as if he had paid the costs.”); OCGA § 9-15-2 (a) (2) (“Any other party at interest or his agent or attorney may contest the truth of an affidavit of indigence by verifying affirmatively under oath that the same is untrue. The issue thereby formed shall be heard and determined by the court, under the rules of the court. The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final.”); OCGA § 9-15-2 (b) (“In the absence of a traverse affidavit contesting the truth of an affidavit of indigence, the court may inquire into the truth of the affidavit of indigence . After a hearing, the court may order the costs to be paid if it finds that the deposit, fee, or other costs can be paid and, if the costs are not paid within the time permitted in such order, may deny the relief sought.”).

        See Yizar v. Ault, 265 Ga. 708, 709 (2) (462 SE2d 141) (1995) (“The untraversed affidavit of indigency in support of the request to proceed in forma pauperis showed on its face a complete absence of funds or income from any source, thus evidencing [appellant’s] inability to pay costs associated with the litigation. Because the court concluded that the mandamus petition failed to state a cause of action, it summarily denied the request to proceed in forma pauperis. Upon remand, the merits of the request should also be considered.”); see also Daker v. Humphrey, 294 Ga. 504, 506 (755 SE2d 201) (2014) (reversing trial court’s decision to deny the filing of a civil action and motion to proceed in forma pauperis, and ordering the court to “revisit appellant’s attached pauper’s affidavit”).

       We deny the appellees’ separately-filed motion for sanctions.


author: McFADDEN, Presiding Judge.

text:
    A15A1324.
    THE STATE v. ROSAS.
    (796 SE2d 13)
   McFADDEN, Presiding Judge.

Penny Ann Rosas was indicted for one count of child molestation. She moved to suppress statements that she had made to a police officer, and the trial court granted the motion on the ground that Rosas had not been informed of her rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). The state appealed from that order, asserting that Rosas was not in custody at the time she made the statements, and therefore a Miranda warning was not required.

This court dismissed the appeal as untimely on the basis that it was brought under OCGA § 5-7-1 (a) (5) and consequently subject to the two-day deadline set out there. The Supreme Court of Georgia has reinstated the case and remanded it to this court pursuant to State v. Andrade, 298 Ga. 464 (782 SE2d 665) (2016), which held that appeals from orders suppressing statements made to a police officer are brought under OCGA § 5-7-1 (a) (4) and consequently subject to the 30-day deadline set out in OCGA § 5-6-38.

We agree with the state’s assertion that Rosas was not in custody and therefore a Miran da warning was not required. So we reverse the trial court’s order.

The trial court determines the admissibility of a defendant’s statement under the preponderance of the evidence standard considering the totality of the circumstances. Although we defer to the trial court’s findings of disputed facts, we review de novo the trial court’s application of the law to the facts.

Clay v. State, 290 Ga. 822, 822-823 (1) (725 SE2d 260) (2012) (citations and punctuation omitted).

In the instant case, the arresting officer was the only witness at the suppression hearing, and he testified that at about 3:30 on the afternoon of May 30, 2009, he was dispatched to Rosas’ house to arrest her pursuant to an outstanding arrest warrant. Upon arriving at the location, the officer saw Rosas and the alleged victim’s mother standing at the front door of the house. The officer approached them and asked Rosas, “Do you know why we are here?” Rosas stated, “I guess I must have touched him,” and said that she had gotten into bed with the alleged victim to console him. The officer subsequently arrested Rosas and took her to jail.

After the evidentiary hearing, the trial court ordered that Rosas’ statements be suppressed. In so ruling, the court found that the officer’s question was designed to elicit an incriminating response, that “the statements were custodial in nature,” and that Rosas “should have been apprised of her Miranda rights.” This appeal followed.

A person is considered to be in custody and Miranda warnings are required when a person is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. Unless a reasonable person in the suspect’s situation would perceive that [she] was in custody, Miranda warnings are not necessary Thus, the relative inquiry is how a reasonable person in [the suspect’s] position would perceive [her] situation.

State v. Folsom, 286 Ga. 105, 107-108 (1) (686 SE2d 239) (2009) (citations and punctuation omitted). “In other words, the inquiry properly focuses upon the objective circumstances attending the particular interrogation at issue, and not upon the subjective views of either the person being interrogated or the interrogating officer.” Sosniak v. State, 287 Ga. 279, 280 (1) (A) (1) (695 SE2d 604) (2010) (citation and punctuation omitted).

Pretermitting the issue of whether the officer’s question rose to the level of an interrogation, it is clear that Rosas had not been formally arrested or restrained to a degree associated with formal arrest at the time she made the statements. Rather, the uncontra-dicted evidence shows that the officer approached Rosas as she stood at the door of her house, did not tell her she was under arrest, did not place her in handcuffs, and did not indicate that she was not free to leave. While the officer’s approach and question may have indicated that Rosas was a criminal suspect, “[e]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest.” Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16) (1995) (citation and punctuation omitted). Indeed, “[a] person is not entitled to Miranda warnings as a matter of right, even though that person is a suspect, unless that person ha[s] been taken into custody or has been deprived of freedom of action in another significant way.” Moses v. State, 264 Ga. 313, 314 (1) (444 SE2d 767) (1994) (citations omitted).

Because Rosas had not been formally arrested or deprived of her freedom of action in any other significant way when the officer posed a question as she stood near the door of her house, a reasonable person in her situation would not have perceived that she was in custody, and therefore a Miranda warning was not required. See Beckwith v. United States, 425 U. S. 341, 347 (96 SCt 1612, 48 LE2d 1) (1976) (suspect questioned by investigators in a private residence was not “in the custodial situation described by the Miranda [c]ourt”); Woods v. State, 242 Ga. 277, 281 (2) (248 SE2d 612) (1978) (defendant was not in custody or in a coercive environment at the time she was questioned by a detective in his automobile at a trailer court); Wilburn v. State, 230 Ga. 675, 679-680 (2) (198 SE2d 857) (1973) (no in-custody interrogation where defendant’s statements were made to police officers talking to him in the yard of his home); Carroll v. State, 208 Ga. App. 316, 317 (2) (430 SE2d 649) (1993) (defendant interviewed by detective in her home “not in a custodial situation” under Miranda). Accordingly, the trial court erred in suppressing Rosas’ statements on the basis of Miranda since the statements were “admissible as . . . statement[s] made prior to any in-custody interrogation.” Hardeman v. State, 252 Ga. 286, 288 (1) (313 SE2d 95) (1984) (citation omitted).

Decided January 9, 2017

Daniel J. Porter, District Attorney, Charissa R. Henrich, Assistant District Attorney, for appellant.

G. Richard Stepp, for appellee.

Judgment reversed.

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


author: Ellington, Presiding Judge.

text:
    A16A1937.
    EXAMINATION MANAGEMENT SERVICES, INC. v. STEED.
    (794 SE2d 678)
   Ellington, Presiding Judge.

Pursuant to a granted application for interlocutory appeal, Examination Management Services, Inc. d/b/a ICS Merrill (“EMSI”) appeals from the order of the State Court of Fulton County denying its motion for summary judgment. As explained below, because the undisputed evidence shows that EMSI is not liable to Steed on his claims for defamation (slander and slander per se) and false imprisonment, we reverse the state court’s order.

When reviewing a trial court’s order on a motion for summary judgment, this Court must

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

(Citation and punctuation omitted.) Nguyen v. Southwestern Emergency Physicians, 298 Ga. 75, 82 (3) (779 SE2d 334) (2015). So viewed, the record shows the following.

On April 22, 2014, Juliette Lowe, an investigator employed by ICS Merrill, was conducting surveillance of Steed. The investigation was related to Steed’s pending workers’ compensation claim. At around 11:00 a.m., Lowe called 911 to report that she had seen Steed, a convicted felon, standing on the porch of his apartment, cocking a sawed-off shotgun. The transcript of the 911 call shows that Lowe informed the police that Steed may have already left the apartment to go to an appointment but that she was making the call because she felt that it was her civic duty to report what appeared to be an “illegal weapon.” She described Steed, his clothing, and his car.

Police officers employed by the City of College Park responded to Steed’s apartment to investigate the call. Lowe was not present. According to the police, Steed was uncooperative; he was loud, sarcastic, and profane; he refused to provide identification or to allow an officer to pat him down for weapons; and he refused to move away from his open doorway Consequently, the officers handcuffed him and walked him to a patrol car while they investigated the complaint. Steed tried to kick one of the officers as he was being escorted into the patrol car. Steed agrees with the officers’ description of the general sequence of events; however, he denies being uncooperative, that he obstructed the officers in their investigation, or that he tried to kick an officer. Rather, he contends that a senior officer, a sergeant, became irate with him, started showing off to impress a rookie officer, and abused his position of authority by roughly handcuffing him and then manhandling him into the patrol car.

The officers spent about 15 minutes walking through Steed’s apartment and looking inside his car, but they did not see a shotgun. The officers averred that, though they released Steed, they believed that they had probable cause to arrest him for disorderly conduct and obstruction. They also averred that Steed was not detained based on the nature of the 911 call or because of any statement that Lowe had made; rather, the police made an independent decision to detain Steed based on his behavior during their investigation.

1. Defamation. Steed contends that Lowe’s 911 call was defamatory in that she accused him of having committed a crime. Pursuant to OCGA § 51-5-4 (a) (1), “[sjlander or oral defamation consists in . .. [ijmputing to another a crime punishable by law[.J” Lowe’s statement that Steed, a convicted felon, possessed a sawed-off shotgun alleges criminal conduct. However, as EMSI contends and as Steed acknowledges, Lowe’s 911 call is subject to a privilege. By statute, statements “made in good faith in the performance of a public duty” or “in good faith in the performance of a legal or moral private duty” are communications subject to a conditional privilege. OCGA § 51-5-7 (1), (2). Under Georgia law,

[r] eporting cri minal behavior i s expecte d and even de mande d of the ordinary citizen, who should not be discouraged from reporting what he knows to the authorities and from lending his aid to secure evidence of a crime. Indeed, in Georgia, it is the duty of one having such information to report it to those in authority.

(Footnotes omitted.) Camp v. Eichelkraut, 246 Ga. App. 275, 285 (7) (539 SE2d 588) (2000). See also Wall v. Seaboard Air-Line R., 18 Ga. App. 457 (3) (89 SE 533) (1916) (“Upon grounds of public policy, communications which would otherwise be slanderous are protected as privileged, if made in good faith in the prosecution of an inquiry regarding a crime which has been committed, and for the purpose of detecting and bringing to punishment the criminal.”).

To set forth its conditional privilege defense, EMSI was required to show that Lowe acted in good faith, had an interest to uphold (in this case a public duty), gave a statement properly limited in its scope and upon a proper occasion, and that the publication was made to proper persons; in this case, the police. See Smith v. Vencare, Inc., 238 Ga. App. 621, 625 (2) (c) (519 SE2d 735) (1999); Dominy v. Shumpert, 235 Ga. App. 500, 504-505 (2) (510 SE2d 81) (1998). The transcript of Lowe’s 911 call was sufficient to satisfy these requirements. It showed that Lowe called the police because she believed she had a civic duty to report witnessing what she thought was criminal conduct. See Meyer v. Ledford, 170 Ga. App. 245, 246-247 (1) (316 SE2d 804) (1984) (holding that the defendant established the applicability of a conditional privilege under OCGA § 51-5-7 where the defamatory statement was given at the request of speaker’s superior officer in the course of an official investigation concerning improper conduct by a fire department official).

Once EMSI established the existence of a conditional privilege, the burden shifted from it to Steed to show that Lowe’s statements were made with malice. As we have explained, “[t]he effect of a conditional privilege is to require the plaintiff to prove actual malice. Consequently, the determination of whether [Lowe’s] statements were privileged, and thus immune from liability, turns on the issue of malice.” (Citation, punctuation and footnote omitted.) Wertz v. Allen, 313 Ga. App. 202, 207 (1) (721 SE2d 122) (2011). See also Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128, 133 (1) (a) (670 SE2d 818) (2008) (“[T]he burden is ultimately on [the plaintiff] to furnish proof of malice, and conclusory allegations of conspiracy, malice, and defamation are insufficient — in the absence of substantiating fact or circumstances — to raise a material issue for trial.”) (citation and punctuation omitted).

Steed has not adduced any evidence, either direct or circumstantial, of actual malice. Rather, he argues that malice may be inferred from Lowe’s allegedly false report of a crime. However, such an inference is based on speculative possibility, not fact-based probability. As we have explained, when an inference

is founded on speculation, it is without evidentiary value. As we have held, no inference of fact may be drawn from a premise which is wholly uncertain. And, inferences must be based on probabilities rather than mere possibilities. Moreover, when a party relies on inferences to prove a point, not only must those inferences be factually based, they must tend in some proximate degree to establish the conclusion sought and render less probable all inconsistent conclusions.

(Citations and punctuation omitted.) Ogletree v. Navistar Intl. Transp. Corp., 245 Ga. App. 1, 6-7 (1) (535 SE2d 545) (2000).

In this case, it is true that the police did not find a shotgun in Steed’s car or apartment. While it is possible that Lowe lied to the police about Steed having a shotgun, it is also equally possible that Steed successfully hid or disposed of the shotgun before the police arrived. Moreover, while it is possible, as Steed argues in his appellate brief, that Lowe was motivated to call 911 in the hope that Steed would be “put behind bars” and therefore deprived of his workers’ compensation benefits, it is also possible that Steed was aware of Lowe’s presence and cocked the shotgun at her to intimidate her. These inferences are speculative because they do not render less probable other contrary or inconsistent inferences that may be drawn from the circumstances. See Ogletree v. Navistar Intl. Transp. Corp., 245 Ga. App. at 7 (1). See also Williams v. Booker, 310 Ga. App. 209, 211-213 (1) (712 SE2d 617) (2011) (“a reasonable inference cannot be based on mere conjecture or probability, or on evidence that is too uncertain or speculative”); Denson Heating & Air Conditioning Co. v. Oglesby, 266 Ga. App. 147, 148 (596 SE2d 685) (2004) (accord). Therefore, as the record in this case fails to rebut the existence of a conditional privilege with evidence of actual malice, the trial court erred in denying EMSI’s motion for summary judgment on Steed’s defamation claims. See Wertz v. Allen, 313 Ga. App. at 207 (1) (“As the record in this case fails to rebut the existence of a conditional privilege with evidence of actual or express malice, summary judgment against [the plaintiff] was proper as to his defamation claim.”); Cleveland v. Greengard, 162 Ga. App. 201, 202 (290 SE2d 545) (1982) (“Since the appellee neither encouraged nor commanded any law enforcement officer to arrest or prosecute the appellant, and the record is devoid of any suggestion of malice or bad faith, the reporting of the appellant’s actions under such circumstances is privileged[.]”) (citations omitted).

2. False Imprisonment. OCGA § 51-7-20 defines the intentional tort of false imprisonment as “the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” “The essential elements of the cause of action for false imprisonment are a detention of the person of another for any length of time, and the unlawfulness of that detention.” (Citation omitted.) Fields v. Kroger Co., 202 Ga. App. 475 (414 SE2d 703) (1992). In this case, the police, not EMSI, detained Steed. Therefore, even if the evidence supports an inference that the police unlawfully detained Steed, his claim against EMSI fails if the evidence does not support an inference that EMSI caused or directed the police to detain him. As this Court has explained,

one who actively instigates or procures an arrest, without lawful process, is generally regarded as the principal for whom the officer acts, and he may be liable to respond in damages. But one who merely states to an officer what he knows of a supposed offense, even though he expresses the opinion that there is ground for the arrest, but without making a charge or requesting an arrest does not thereby make himself liable for false imprisonment. [I]t is not necessary that he direct the arrest in express terms. [Rather, it] is sufficient that the person alleged to have caused the plaintiff’s arrest should by his conduct and acts have procured and directed the arrest.

(Citation and punctuation omitted.) Scott Housing Systems v. Hickox, 174 Ga. App. 23, 25 (1) (329 SE2d 154) (1985).

In this case, the evidence shows only that Lowe reported having seen Steed with what she believed was an illegal sawed-off shotgun. She did not swear out a warrant against Steed nor did she urge or direct the police to arrest him. Her 911 call prompted an investigation only. Moreover, according to the officers’ sworn statements, Steed’s detention had nothing to do with Lowe’s 911 call or the allegation that Steed possessed a sawed-off shotgun. Rather, the officers stated unequivocally that they independently decided to detain Steed based on his disorderly conduct and efforts to obstruct their investigation. Finally, Steed himself deposed that his detention was the result of the misconduct of a lone officer who abused his authority to impress a rookie. Because the undisputed evidence shows EMSI did not cause or direct the police to detain Steed, his claim of false imprisonment fails as a matter of law. See, e.g., Welton v. Ga. Power Co., 189 Ga. App. 17, 20-21 (2) (375 SE2d 108) (1988) (Because the undisputed evidence showed that the defendant’s employee did not instigate or procure the plaintiff’s detention, summary judgment for the defendant was proper.). See also Arrowsmith v. Williams, 174 Ga. App. 690, 692 (2) (331 SE2d 30) (1985) (“[I]f the decision to arrest or prosecute is left to the uncontrolled discretion of the officer, or if the officer makes an independent investigation or prosecutes for an offense other than the one charged by the private person, the latter will not be deemed as having instigated the proceedings.”) (citation omitted).

Decided December 15, 2016

Reconsideration denied January 10, 2017.

Hall Booth Smith, Denise W. Spitalnick, Tiffany R. Winks, for appellant.

The Orlando Firm, Craig T. Jones; Cruser & Mitchell, Karen E. Woodward, for appellee.

3. Punitive damages and attorney fees. Finally, Steed is not entitled to punitive damages or attorney fees under OCGA § 13-6-11 because, given the outcome of this appeal, he has not prevailed on any of the claims asserted in his complaint. See Burns v. Dees, 252 Ga. App. 598, 608 (1) (e) (557 SE2d 32) (2001) (“[The plaintiff’s] claims for attorney fees and punitive damages rest upon the weight of his other claims. As [he] has not prevailed on any of his enumerations, his claims for attorney fees and punitive damages must fail.”) (citations and footnotes omitted). See also R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 586 (5) (451 SE2d 812) (1994) (“Inasmuch as defendants . . . are not liable to plaintiff for compensatory damages under either theory submitted to the jury, they cannot be held liable for OCGA § 13-6-11 attorney fees and expenses of litigation.”) (citation omitted); Viau v. Fred Dean, Inc., 203 Ga. App. 801, 804 (4) (418 SE2d 604) (1992) (Because the defendant had no liability for the injuries resulting from the collision, there could be no recovery of punitive damages against the defendant.).

Judgment reversed.

Branch and Mercier, JJ., concur.

       ICS Merrill is a division of EMSI. ICS Merrill does investigatory work, primarily for insurance companies.

       The record shows that, pursuant to a pardon granted on April 5, 2013, Steed’s civil liberties, except his right to bear arms, were restored. The pardon reflects that Steed had been convicted of armed robbery, kidnapping/false imprisonment, terroristic threats and acts, and child molestation.

       In Georgia, a viable cause of action for defamation, whether slander or libel, “consists of (1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm.” (Citations and punctuation omitted.) Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128, 129-130 (1) (670 SE2d 818) (2008).

       OCGA § 16-11-131 (b) provides that “[a]ny person . . . who has been convicted of a felony by a court of this state or any other state .. . who receives, possesses, or transports any firearm commits a felony.” OCGA § 16-11-122 provides that “[n]o person shall have in his possession any sawed-off shotgun, sawed-off rifle, machine gun, dangerous weapon, or silencer except as provided in Code Section 16-11-124.”

       Georgia law recognizes two different kinds of privileged communications, absolute and conditional. Saye v. Deloitte & Touche, LLP, 295 Ga. App. at 130 (1) (a) (citing OCGA §§ 51-5-7, 51-5-8, 51-5-9). “[CJommunications which are afforded an absolute privilege cannot form the basis of a defamation action, regardless of the falsity of the statements or the speaker’s malicious intent; conditionally privileged statements, on the other hand, are actionable upon a showing of malice.” (Citations omitted.) Id. at 131 (1).

       As discussed in Division 1, supra, that the police did not find the shotgun in Steed’s possession does not give rise to a reasonable inference that Lowe was lying.


author: McMlLLIAN, Judge.

text:
    A16A0357.
    CLEMMONS v. THE STATE.
    (796 SE2d 297)
   McMlLLIAN, Judge.

In November 1991, Sean Clemmons entered a guilty plea to one count of possession of cocaine with intent to distribute and was sentenced to ten years, with two years to serve in confinement,. Almost 24 years later, in August 2015, Clemmons filed in the trial court a “Motion Under Writ of Error of Coram Nobis to Vacate, or Expunge a Sentence by a Person in Federal Custody” (“Coram Nobis Motion”). The trial court denied this motion on August 18, 2015. Clemmons thereafter filed a “Motion Pursuant to ‘Habeas Corpus’ Under Equitable Tolling” (“Habeas Motion”), which the trial court also denied. Clemmons, proceeding pro se, now appeals both orders. Finding no error, we affirm.

1. As a threshold matter, we note that Clemmons’ appellate brief is deficient because the statement of facts does not contain a “citation of the parts of the record or transcript essential to a consideration of the errors.” Court of Appeals Rule 25 (a) (1). This problem is compounded by the fact that Clemmons also fails to include any citations to the record in support of his enumerations of error. See Court of Appeals Rule 25 (c) (2) (i) (“[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript”). Clemmons’ pro se status does not excuse him from compliance with the substantive and procedural requirements of the law, including the rules of this Court. See Brown v. Mowr Enterprises, LLC, 322 Ga. App. 93, 93 (742 SE2d 173) (2013). While we will nonetheless review Clemmons’ claims of error to the extent we are able to ascertain them, he will not be granted relief should we err in construing his nonconforming appellate brief. See Orange v. State of Ga., 319 Ga. App. 516, 517 (1) (736 SE2d 477) (2013).

2. Clemmons first asserts that the trial court erred in denying his Coram Nobis Motion. A writ of error coram nobis is obsolete, and its use has been discouraged by our Supreme Court for some time:

[A] writ of error coram nobis is the ancestor of an extraordinary motion for new trial based on newly-discovered evidence. The prerequisites for issuing a writ of error coram nobis or for granting an extraordinary motion for new trial based on newly discovered evidence appear to be identical. Before a court authorizes either, it is generally required that the moving or petitioning party base the pleading on facts which are not part of the record and which could not by due diligence have been discovered at the time of the trial.

Waye v. State, 239 Ga. 871, 873 (1) (238 SE2d 923) (1977) (“we would like to recommend to the Bar to finally grant this lingering ghost a peaceful rest”). Clemmons argues that he is entitled to a writ of error coram nobis because he received ineffective assistance of counsel when his trial attorney (1) failed to use peremptory strikes on two jurors although he had instructed his counsel to do so; (2) failed to investigate or inquire why the State lowered its plea offer following the first day of trial; (3) advised him to take a plea bargain because he could not win the case, essentially “abandoning him”; and (4) somehow conspired with the State to get a felony conviction on his record. This argument is without merit.

We first note that Clemmons fails to point to any newly discovered evidence that would have authorized the trial court to grant the writ. Rather, his arguments about the validity of his plea all concern evidence that was known to Clemmons, as well as his counsel, at the time that he entered his plea of guilty. See Moss v. State, 255 Ga. App. 107, 108 (564 SE2d 516) (2002). Moreover, an extraordinary motion for new trial is not available to one who pled guilty. See Jones v. State, 322 Ga. App. 269, 271 (1) (745 SE2d 1) (2013).

Even if we were to consider Clemmons’ Coram Nobis Motion as a motion to withdraw his guilty plea, he would not be entitled to relief. The trial court’s jurisdiction to entertain a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction was rendered. See Seabrook v. State, 315 Ga. App. 801, 802 (728 SE2d 322) (2012). Here, the record indicates that Clemmons did not move for any form of relief until nearly 24 years following his conviction, long after the expiration of the term of court. Accordingly, the trial court did not err in denying this motion. See State v. Carrion, 327 Ga. App. 296, 298 (758 SE2d 632) (2014) (where defendant moved for writ of coram nobis more than 20 years after expiration of term of court in which judgment of conviction on plea was entered, trial court had no authority to grant motion).

3. Clemmons also asserts that the trial court erred in denying his Habeas Motion. It is true that “[t]he proper remedy for making a claim of ineffective assistance of counsel in connection with a guilty plea is to move to withdraw the plea or, if the term of court in which the plea was entered has expired, to petition for a writ of habeas corpus.” (Citation and punctuation omitted.) Valldeparas v. State, 319 Ga. App. 491, 492 (1) (735 SE2d 816) (2012). Because Clemmons appeared to seek review, inter alia, of the trial court’s order denying habeas relief, this Court initially transferred the case to our Supreme Court, which has exclusive appellate jurisdiction over all cases involving habeas corpus. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. III (4). However, the Supreme Court transferred the appeal back to this Court, determining that “Appellant filed in his criminal case pleadings seeking a writ of error coram nobis, and to withdraw his 1991 guilty plea to drug charges and vacate his conviction” and that “it is clear that appellant is not seeking habeas relief.” We are bound by the Supreme Court’s determination that Clemmons is not seeking habeas relief, but rather to withdraw his guilty plea, and therefore, as explained in Division 2, this enumeration of error provides no basis for reversal.

Decided January 13, 2017.

Sean C. Clemmons, pro se.

Leigh E. Patterson, District Attorney, Mary Beth Gregoire, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       It appears from the record that Clemmons is currently serving a sentence in federal prison for an unrelated conviction.

       We note, however, that because Clemmons is currently being detained in West Virginia, venue for his habeas filing was proper in the Superior Court of Floyd County. See OCGA § 9-14-43 (“If the petitioner is not in custody or is being detained under the authority of the United States, any of the several states other than Georgia, or any foreign state, the petition must be filed in the superior court of the county in which the conviction and sentence which is being challenged was imposed.”). See also Hughes v. State, 291 Ga. 65, 65-66 (727 SE2d 459) (2012) (because defendant was a federal prisoner attempting to challenge his prior Cobb County convictions, venue for habeas action was proper in Cobb County, not Fulton County where he was incarcerated in a federal prison).


text:
    A16A1537.
    CLAYTON COUNTY v. GEORGIA POWER COMPANY.
    (796 SE2d 16)
   McMlLLIAN, Judge.

The sole issue presented by this appeal is whether Georgia Power Company (“Georgia Power”) was entitled to compensation from appellant Clayton County (“County”) for the expenses Georgia Power incurred in relocating electrical lines and supporting structures, which was made necessary by a County road widening project. The trial court found that a 1929 franchise agreement did not apply and ordered compensation for the taking. As more fully set forth below, we now affirm.

The facts are essentially undisputed. In 1947 and 1950, Georgia Power acquired certain easements from private property owners along what are now known as Stagecoach Road and Panola Road in Clayton County (“easement area”), for the purpose of installing and operating electrical distribution lines and supporting structures. The electrical lines were in place and operational by April 1955, and Georgia Power has continuously maintained the lines since that time. Subsequently, in October 1955 and June 1958, the Georgia Rural Roads Authority acquired an 80-foot right-of-way along Stagecoach and Panola Roads, which it in turn deeded the rights to Clayton County The parties have stipulated that Georgia Power acquired its easements for its electrical poles and lines from private individuals before Clayton County acquired the right-of-way along Panola Road.

In June 2012, the County filed a Petition and Declaration of Taking to condemn certain property as part of the Panola Road Widening Project, including Georgia Power’s easement area. Georgia Power filed an answer, a petition to set aside the condemnation as unauthorized, and a notice of appeal challenging the amount stated in the declaration as just and adequate compensation for the condemned property The County ultimately opposed Georgia Power’s claim for compensation, contending that under the terms of a franchise agreement entered into by the parties in 1929, Georgia Power had to bear the cost of removing and relocating the power lines. Georgia Power argued that because the electrical poles, lines, and supporting structures had been placed under the authority of private easements granted by private property owners, the franchise agreement did not apply here, and the County was required to compensate it for loss of use of the pre-existing private easements under the authority of Bibb County v. Ga. Power Co., 241 Ga. App. 131 (525 SE2d 136) (1999). The trial court agreed and granted Georgia Power’s claim for compensation, which would include the costs necessary to relocate the poles and lines. Following the entry of the final judgment setting the amount of compensation, the County filed this appeal.

We start with an overview of the statutory scheme governing who bears the cost of relocating a utility’s structures in connection with a public road improvement project before turning to the terms of the franchise agreement. Generally, expenses incurred for relocating utility poles on or adjacent to public roads are paid for by the utility See OCGA §§ 32-4-42; 32-6-171; 32-6-173. However, OCGA § 32-6-173 explicitly provides that “nothing in this article shall be construed so as to deprive any utility, relocated from a location in which it owned a property interest, of compensation for such property interest,” and OCGA § 32-6-171 contains essentially the same language. Thus, as we explained in Bibb County, 241 Ga. App. at 138 (5), while under the above statutes the county may require a utility to relocate its equipment, even if equipment is located on pre-existing private easements, the county cannot substantially impair such an easement without paying compensation and, accordingly, the utility in turn may seek just and adequate compensation for the loss of its old easement, including the costs to relocate. Id. (“The county cannot substantially impair an easement without paying compensation.”).

Although the County acknowledges that, generally, it would bear the costs of relocating the utility poles when, like here, the County is forcing the utility to relocate power poles and lines constructed on pre-existing private property easements, the County argues that in this case the determination of who has to pay for the relocation expenses should be determined under the parties’ 1929 one-page Franchise Agreement (“Agreement”). The Agreement provides in pertinent part:

3. For the purposes herein set out [Georgia Power] desires for itself, its successors or assigns, the right and privilege to erect from time to time, operate, maintain, renew and extend its electric transmission and distribution lines, on, along, over and across the public roads, highways, streets and alleys of said County, together with transformers, appurtenances, fixtures and appliances necessary or desirable for efficient operation, subject to the following terms and conditions:
(a) Said electric transmission and distribution lines, on, along, over, and across said roads, highways, streets or alleys shall be erected subject to the approval and supervision of the authorities of said County having charge of the laying out, building and maintenance of said roads, highways, streets or alleys.
(b) In event of change in the grade or the width of any of the roads, highways, streets or alleys by the County authorities, on, along, over and across which any such transmission or distribution line or lines may have been or may hereafter be erected, [Georgia Power] agrees, at its own cost and expense and without any cost or expense to said County, to move its transmission or distribution lines to such other location on said roads, highways, streets or alleys as may be designated by said County authorities.
(c) [Georgia Power] further agrees to indemnify, protect and save harmless the said County from the payment of any sum or sums of money which may be demanded of said County by any person or persons whomsoever on account of injury to person or damage to property, of any and every nature or character caused or occasioned by, or in any way traceable to the erection, operation, renewal, extension and maintenance of said electric transmission and distribution lines so erected, operated, renewed, maintained or extended by [Georgia Power] on, over, along and across such roads, highways, streets or alleys.
WHEREFORE, [Georgia Power] respectfully requests that said County grant it, its successors or assigns, permission to so erect from time to time, operate, renew, maintain and extend its electric transmission and distribution lines for the transmission, distribution and utilization of electric current and energy with all necessary wires, cables, transformers, fixtures, appliances, appurtenances, poles, frames and other supports, together with its telephone and telegraph lines on, along, over and across the public roads, highways, streets and alleys of said County under the terms and conditions herein set out and stipulated.

The trial court found the Agreement inapplicable here because the electric lines and poles at issue were erected on private property easements prior to the time the County acquired right-of-way rights or built Panola Road and were not erected under the supervision and approval of any County road authority. But the County argues that subsection (b) contains no such limiting language, and on its face applies anytime removal and movement of Georgia Power poles is necessitated by a road-widening or other specified change along what is at the time of the removal a County-owned road or highway

Contract construction is generally a question of law for the court, see OCGA § 13-2-1, and we conduct a de novo review of the trial court’s determination. Unified Govt. of Athens-Clarke County v. Stiles Apts., Inc., 295 Ga. 829, 832 (1) (764 SE2d 403) (2014). The cardinal principle that guides our construction of a contract is to effectuate the intent of the parties as set out in the language of the contract. Id.; OCGA § 13-2-3. “[T]he construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” Shepherd v. Greer, Klosic & Daugherty, 325 Ga. App. 188, 190 (750 SE2d 463) (2013).

Decided January 17, 2017.

Here, the Agreement explicitly sets out its purpose — to permit Georgia Power “to erect from time to time, operate, maintain, renew and extend” power transmission lines “on, along, over and across the public roads, highways, streets and alleys of said County.” Such right or permission is granted subject to the terms and conditions stated in section 3, as set out in subsections (a), (b), and (c). Subsection (a) provides that such lines would be “erected” subject to the “approval and supervision” of the County authority charged with “laying out, building and maintenance of said roads,” clearly referring back to the public roads of the County mentioned in section 3. Under subsection (b), the specific provision at issue here, Georgia Power agrees to bear the expense of moving “any such transmission or distribution line or lines [which] may have been or may hereafter be erected.” (Emphasis supplied.) This obligation does not extend to any power lines that may have been or may be erected along county roads, but to “any such” power lines that may have been or may be erected, appearing to refer back to the power lines in subsection (a) that have been erected with county approval or under county supervision.

Accordingly, looking to the structure and language of the Agreement, i.e., by placing subsection (b) in the context of the Agreement as a whole, and properly reading it in relation to the other subsections under section 3, we agree with the trial court that under the plain language of the Agreement, subsection (b) does not apply to those situations where Georgia Power is forced by the County to relocate power transmission lines and poles that it originally erected on private property easements on or along a non-County owned road or highway As the trial court found,

[t]o interpret the agreement otherwise would be to find that it provides that any easement rights that Georgia Power has anywhere in the county maybe taken without compensation if necessary to widen a road or change its grade, regardless of the circumstances surrounding the acquisition of the easement and erection of the equipment.

Based on the authority set out above, the trial court properly found that Georgia Power was entitled to compensation for the taking of its private property easements, including the costs of relocating its electrical power and distribution poles.

Judgment affirmed.

Barnes, P. J., and McFadden, P. J., concur.

Freeman, Mathis & Gary, Jack R. Hancock, M. Michelle Youngblood, Arash A. Sabzeuari, for appellant.

Troutman Sanders, Douglas A. Henderson, Courtney E. Ferrell; Brown & Romeo, Robert T. Romeo, for appellee.

       As used in this context,
      [a] franchise is a method developed by governments to grant use of public land to private companies for purposes benefitting the general public. Franchises are common law creations dating back to fourteenth-century England, where the sovereign granted private parties use of public property under certain conditions.
      A franchise allowed a private party to provide a service that was both a public necessity and a natural monopoly. In the United States, local governments use franchises to give right-of-way access to companies providing services that require intensive infrastructure, such as electrical and telephone utilities.
      (Footnotes omitted.) Jennifer Amanda Krebs, Notes & Comments, Fair and Reasonable Compensation Means Just That: How § 253 of the Telecommunications Act Preserves Local Government Authority Over Public Rights-of-Way, 78 Wash. L. Rev. 901, 904-05 (I) (B) (2003). See generally City of Summerville v. Ga. Power Co., 205 Ga. 843, 844 (1) (55 SE2d 540) (1949) (in the context of a city, explaining generally the power to grant franchises to public service corporations).


author: Andrews, Judge.

text:
    A16A2074, A16A2075.
    GLOCK, INC. et al. v. HARPER; and vice versa.
    (796 SE2d 304)
   Andrews, Judge.

James Harper III filed this action on September 14, 2015, asserting malicious prosecution and Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act claims against Glock, Inc., Consultinvest, Inc., and several lawyers associated with those companies. On May 6, 2016, the trial court granted the defendants’ motion to dismiss the malicious prosecution claim based on the applicable statute of limitation, but denied their motion to dismiss the RICO claims. We granted this interlocutory appeal from that denial, and Harper cross-appealed from the dismissal of his malicious prosecution claim.

Harper alleged that from 2000 to 2003 he performed investigative services for Gaston Glock, Glock, Inc., and Consultinvest, regarding the management, control, and location of business assets. Harper claimed that during the investigation, he uncovered schemes to skim profits and conceal financial information from various taxing authorities, and evidence of some questionable gun sales, which formed the basis of his RICO claims.

Things went sour between Harper and the others in 2003, ending with Harper claiming Glock owed him for unpaid fees and expenses arising from the investigation and with Glock and the others claiming Harper converted a large sum of money In 2007 and 2008 Harper became the target of a police investigation over the Glock allegations about Harper, which culminated in Harper’s indictment on January 21, 2010.

1. In the indictment, Harper was charged with violating Georgia’s RICO statute and several counts of theft. That prosecution terminated on March 14, 2013, when the State filed a nolle prosequi. That terminated prosecution formed the predicate for Harper’s malicious prosecution claim filed on September 14, 2015.

Because Harper’s action was filed more than two years after the termination of the prosecution, the trial court dismissed the malicious prosecution claim as barred by the statute of limitation. In Case No. A16A2075, Harper contends the two-year limitation period did not begin to run until six months after the nolle prosequi because the State could have re-indicted him during that period of time, and thus his complaint was not time-barred. However, this Court specifically rejected that contention in Bailey v. Gen. Apt. Co., 139 Ga. App. 713, 715 (229 SE2d 493) (1976):

[T]he filing of a nolle prosequi by the prosecutor and dismissal of the action by the trial court constitutes prima facie a termination of the prosecution in favor of the person arrested. Such a termination is sufficient to commence the running of the statute subject to the right of the state to reinstate the action within the six-month period. Since no further action was taken in this case by the state to reinstate the indictment, the original nolle prosequi progressed from a prima facie termination of the action to an irrebuttable conclusion of finality

(Citation omitted.)

Accordingly, the trial court properly dismissed Harper’s claim for malicious prosecution as barred by the two-year statute of limitation.

2. In his complaint, Harper alleged that dock and the other defendants repeatedly carried out the illegal activities at least from August 2002 continuing up to March 15, 2013. In Case No. A16A2074, the dock defendants contend the trial court erred in denying their motion to dismiss Harper’s civil RICO claims based on the statute of limitation. We agree.

OCGA § 16-14-8 provides a five-year statute of limitation for a civil action brought for RICO violations. That statute was revised, effective July 1, 2015, to provide that a civil action “shall be commenced up until five years after the conduct in violation of a provision of this chapter terminates.” Before that revision, OCGA § 16-14-8 provided that such a civil action had to be brought within five years after the conduct terminated “or the cause of action accrues.”

Regarding the pre-July 1, 2015 version of OCGA § 16-14-8, this Court determined that “the statute of limitation begins to run when the civil RICO cause of action accrues, which we interpret to mean when the plaintiff discovers, or reasonably should have discovered, that he has been injured and that his injury is part of a pattern.” Blalock v. Anneewakee, Inc., 206 Ga. App. 676, 678 (1) (426 SE2d 165) (1992) (citation omitted). The pattern discovery element has since been questioned, but otherwise Blalock stated the proper application of the civil RICO statute of limitation prior to the July 1, 2015 revision. See Southern Intermodal Logistics v. D. J. Powers Co., 251 Ga. App. 865 (555 SE2d 478) (2001).

Decided January 18, 2017.

Bondurant, Mixson & Elmore, John E. Floyd, Ronan P. Doherty, Llana S. Mykkeltvedt, Amanda S. Bersinger; Miller & Martin, Michael P. Kohler, Christopher E. Parker; Hawkins, Parnell, Thackston & Young, Christine L. Mast, for appellants.

Boone & Stone, William S. Stone, James W. Stone, Ryals D. Stone; Law Office of Arthur W. Leach, Arthur W. Leach, for appellee.

It is undisputed that Harper’s civil RICO claims accrued more than five years before the July 1, 2015 revision of the statute of limitation and thus would be time-barred under the pre-July 1, 2015 statute. But the trial court found that the revised statute should be retroactively applied and thus revived Harper’s claims.

In McNeal Constr. Co. v. Wilson, 271 Ga. 540, 543 (522 SE2d 222) (1999), the Supreme Court held that a newly-amended statute of limitation may be retroactively applied to allow an action that was barred under the previous statute only “when the language imperatively requires it, or when an examination of the act as a whole leads to the conclusion that such was the legislative purpose.” (quoting Brown v. Brown, 269 Ga. 724, 726 (2) (506 SE2d 108) (1998)). In the instant case, the statute certainly contains no language imperatively requiring retroactive application of the revised limitation period, and nothing in the act as a whole demands a conclusion that the legislature intended such. Accordingly, the trial court should have dismissed Harper’s civil RICO claims as barred by the pre-July 1, 2015 limitation period.

Judgment affirmed in Case No. Al 6A2075.

Judgment reversed in Case No. A16A2074. Doyle, C. J., and Ray, J., concur.


text:
    A16A2098.
    OSKOUEI et al. v. ORTHOPAEDIC & SPINE SURGERY OF ATLANTA, LLC et al.
    (796 SE2d 299)
   Ray, Judge.

This appeal stems from litigation between two physicians and various entities they control. Armin Oskouei, M.D. and Ortho Sport & Spine Physicians, LLC, filed an application for interlocutory appeal from a trial court’s order dismissing their counterclaim against James L. Chappuis, M.D., Orthopaedic & Spine Surgery of Atlanta, LLC, and William T. Marlow. The motion to dismiss argued the existence of a prior pending action. The trial court dismissed the counterclaim pursuant to OCGA §§ 9-2-5 (a) and 9-11-12. For the reasons that follow, we reverse.

We review a trial court’s ruling on a motion to dismiss de novo. See Brock v. C & M Motors, 337 Ga. App. 288, 290 (1) (787 SE2d 259) (2016).

OCGA § 9-2-5 (a) provides:

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 simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different, times, the pendency of the former shall be a good defense to the latter.

The instant appeal turns on the pendency of two actions filed in the Superior Court of Fulton County at different, times and involving some of the same parties. The first, Ortho Sport & Spine Physicians Savannah, LLC v. James Chappuis, M.D., Chappuis Properties, LLC, Orthopaedic & Spine Surgery of Atlanta, LLC, and Jordan Strudhoff, No. 2015cv264010, was filed August 3, 2015 (hereinafter the “First Lawsuit”). The second, from which this appeal springs, was filed August 18, 2015, and is styled Orthopaedic & Spine Surgery of Atlanta, LLC, William T. Marlow, and James L. Chappuis, M.D. v. Armin Oskouei, M.D. and Ortho Sport & Spine Physicians, LLC, No. 2015cv264703 (hereinafter the “Second Lawsuit”). On October 5, 2015, Oskouei and Ortho Sport & Spine Physicians, LLC (hereinafter “Ortho Atlanta”) filed their verified answer and counterclaim to the Second Lawsuit. The parties agree that Ortho Sport & Spine Physicians Savannah, LLC (hereinafter “Ortho Savannah”), which is a plaintiff in the First Lawsuit, is a separate and distinct legal entity from Atlanta-based Ortho Atlanta, which is a counterclaimant in the Second Lawsuit, although both entities are owned by Oskouei.

Chappuis and the other parties with which he is associated successfully argued that this counterclaim should be dismissed, contending that the claims raised by Ortho Savannah in the First Lawsuit and the counterclaim filed by Oskouei and his other company, Ortho Atlanta, in the Second Lawsuit were virtually identical. While the claims are similar, to merit dismissal under OCGA § 9-2-5 (a), not only must the causes of action be the same, but the parties also must be the same. See Creel v. Welker & Assoc., 174 Ga. App. 877, 877 (332 SE2d 5) (1985). Appellants argue that the trial court erred in dismissing the case because the parties in the First and Second Lawsuits are “distinct and independent.”

As an initial matter, appellees Chappuis and his company, Ortho-paedic & Spine Surgery of Atlanta, LLC, function as defendants in the First Lawsuit and also must defend against Oskouei and Ortho Atlanta’s counterclaim in the Second Lawsuit. However, the parties that function as plaintiffs in the First Lawsuit and, for purposes of the counterclaim, in the Second Lawsuit, are not identical.

Despite a confusing similarity between the names of the various medical entities at issue, as noted above, both sides agree that the entity functioning as the plaintiff in the First Lawsuit (Ortho Savannah) and the entities functioning as plaintiffs in the counterclaim in the Second Lawsuit (Oskouei and Ortho Atlanta) are, in fact, separate and distinct. Specifically, while Oskouei is a party in the Second Lawsuit, he is not a party at all in the First Lawsuit. Oskouei is considered a separate entity from his companies, Ortho Savannah and Ortho Atlanta. See generally Old Nat. Villages v. Lenox Pines, 290 Ga. App. 517, 520 (659 SE2d 891) (2008) (“[A] member of a limited liability company ... is considered separate from the company and is not a proper party to a proceeding by or against a limited liability company, solely by reason of being a member of the limited liability company”) (citation and punctuation omitted); Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532, 532, 534 (1) (478 SE2d 601) (1996) (finding that president/sole stockholder and his company were separate entities for the purpose of application of OCGA § 9-2-5 (a) and that any judgment gained against president in suit to which company was not a party would not be enforceable against company).

Oskouei’s company, Ortho Atlanta, is a party in the Second Lawsuit, but it also is not a party to the First Lawsuit, which involves a different Oskouei company, Ortho Savannah.

“Georgia law clearly establishes that a plain tiff may not prosecute two actions in the courts at the same time for the same cause of action and against the same party[.]” Steve A. Martin Agency v. PlantersFIRST Corp., 297 Ga. App. 780, 781 (1) (678 SE2d 186) (2009) (emphasis supplied). However, we find no prohibition against different plaintiffs, as exist in the two lawsuits at issue here and as acknowledged by both sides, pursuing similar causes of action against defendants who are the same. Compare Creel, supra at 878 (affirming dismissal under OCGA § 9-2-5 (a) where the plaintiffs, albeit in different configurations, were pursuing similar causes of action against the same defendants). As such, we agree that the trial court erred in dismissing the counterclaim.

Decided January 18, 2017.

Heidari Power Law Group, Yasha Heidari, Yenniffer S. Delgado, for appellants.

Fried & Bonder, Scott L. Bonder, Joseph A. White, Matthew R. Kahn, for appellees.

Appellees do not on appeal argue that the claims against them were filed by the same plaintiffs. Rather, they contend that we should affirm the trial court’s dismissal under the right for any reason rule because Ortho Atlanta allegedly is not a real party in interest with respect to Appellants’ counterclaim and because Oskouei lacks standing to assert claims for alleged injuries to Ortho Savannah. However, Appellees raised neither of these points below, nor did the trial court rule upon them, and we will not do so in the first instance. Even in the context of de novo review, this Court does not apply the right for any reason rule to uphold a decision of the trial court based on a ground not raised below. See Hobbs v. Great Expressions Dental Centers of Ga., 337 Ga. App. 248, 249, n. 2 (786 SE2d 897) (2016).

Judgment reversed.

Andrews and McMillian, JJ., concur.

        See Kensington Partners v. Beal Bank Nevada, 311 Ga. App. 196, 196-197 (1) (715 SE2d 491) (2011) (a party may make binding factual admissions in judicio in its pleadings, motions, and brief).

       See McLain Bldg. Materials v. Hicks, 205 Ga. App. 767, 769 (1) (423 SE2d 681) (1992) (although parties may occupy opposite roles as plaintiffs and defendants between the two suits at issue, their status must be viewed in relation to the duplicative cause of action; therefore, a counterclaim may provide this identity of status).


author: MERCIER, Judge.

text:
    A16A2167.
    THOMAS v. TENET HEALTHSYSTEM GB, INC.
    (796 SE2d 301)
   MERCIER, Judge.

Lorrine Thomas appeals the trial court’s dismissal of one count of her amended complaint. She argues that the trial court erred in dismissing Count 10 of her second amended complaint because the allegations related back to the date of the original filing and were not time barred. We agree and reverse.

In May 2012, Thomas was involved in a car accident. At the scene of the accident, Thomas was placed on a backboard by paramedics and taken by ambulance to Atlanta Medical Center (“AMC”). Dr. Robin Lowman was Thomas’s physician when she arrived at AMC’s emergency room, and she ordered that a cervical CT scan and other tests be performed on Thomas. When completed, the CT scan was sent to Dr. Clifford Grossman, who read it at his home. After reviewing the CT scan, Dr. Grossman concluded that there were no fractures in Thomas’s cervical spine and communicated this to Dr. Lowman. Dr. Lowman instructed a nurse to remove a cervical spine collar that had been placed on Thomas and to discharge her from the hospital. The nurse then removed the collar from Thomas’s neck.

Thomas, who was heavily medicated at the time, was placed in a wheelchair and taken to the curb to await her ride, but when her brother arrived to pick her up, Thomas was slumped over and unresponsive in the wheelchair. Thomas was readmitted to the hospital, and upon re-examination, it was discovered that Thomas did in fact have a fracture in her cervical spine. When the cervical spine collar was removed, the fracture in Thomas’s spine was displaced, which caused a compression of Thomas’s spinal cord and neurological damage. As a result ofthe neurological damage, Thomas was rendered a quadriplegic.

In May 2014, Thomas filed a complaint alleging professional negligence against Dr. Lowman and Dr. Grossman, as well as against AMC for imputed liability. In August 2015, Thomas filed a second amended complaint alleging three additional counts of simple negligence against AMC. AMC filed a motion to dismiss the three new counts, arguing that they were time barred. Thomas filed her reply in opposition in October 2015. In April 2016, the trial court issued an order dismissing one of the three new counts against AMC, finding that the allegations did not relate back to the time the original complaint was filed. In May 2016, Thomas filed an application for interlocutory appeal, which we granted, and this appeal followed.

In her sole enumeration of error, Thomas contends that the trial court erred in granting AMC’s motion to dismiss Count 10 of her second amended complaint because the allegations contained therein relatedback to the date ofthe original filing pursuant to OCGA § 9-11-15 (c). See generally OCGA § 9-3-33. Walker County v. Tri-State Crematory, 292 Ga. App. 411 (664 SE2d 788) (2008) (citation and punctuation omitted).

A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his or her claim. We review the trial court’s ruling on a motion to dismiss under the de novo standard of review.

Viewed in such a light, the evidence shows that on May 6, 2014, Thomas filed her original complaint alleging professional negligence against Dr. Lowman and Dr. Grossman, as well as against AMC for imputed liability for the negligence of its physicians on staff. During the course of discovery, Thomas learned that AMC had a policy entitled “Termination of Cervical Spine Immobilization,” which required that a physician remove the cervical spine collar, that Dr. Lowman instructed a nurse to remove the collar, and that the nurses had been trained on the policy. Based on this information, Thomas amended her complaint on August 19, 2015, to add three claims against the hospital: negligent credentialing (Count 8), negligent failure to train (Count 9), and simple negligence (Count 10). Specifically, Thomas alleged that the nurse who violated hospital policy caused or contributed to Thomas’s injuries and that AMC was liable for the nurse’s simple negligence. AMC argued that the new causes of action were barred by the statute of limitation. The trial court agreed in part, dismissing Count 10 and finding that the original complaint was “devoid of allegations of liability on the part of the AMC nursing staff. Therefore, . . . the claim for imputed simple negligence . . . does not arise from ‘the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.’ OCGA § 9-11-15 (c).” However, the trial court denied the motion to dismiss as to the negligent credentialing (Count 8) and negligent training (Count 9) claims.

OCGA § 9-11-15(c) states: “Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. . . .’’Additionally, we are to construe OCGA § 9-11-15 liberally in favor of allowing amendments. See Deering v. Keener, 282 Ga. 161, 163 (646 SE2d 262) (2007). With respect to whether an amendment to a complaint relates back to the original filing we have held:

[T]he question of relation back of the amendment turns on fair notice of the same general fact situation from which the claim arises. It is apparent that the strict rule of no relation back of the amendment to the time of filing the original complaint because of the assertion of a new cause of action is no longer applicable unless the causes of the action are not only different but arise out of wholly different facts.

Jensen v. Engler, 317 Ga. App. 879, 883 (1) (b) (733 SE2d 52) (2012) (citation, punctuation and emphasis omitted).

In Jensen, in which the plaintiff initially asserted an ordinary negligence claim and then amended the claim after the statute of limitation expired to add a professional negligence claim, we concluded that the trial court properly denied the motion to dismiss the claim. Id. at 884 (1) (b). In that case, the plaintiff found evidence during discovery suggesting that the physician defendant had deviated from the standard of care during the patient’s emergency room visit, and we found that the claim was not time barred. Id. at 884 (1) (b), n. 6. Similarly, here, Thomas discovered the violation of the hospital policy during discovery In Thomas’s original complaint, she alleged that “the C-collar was removed by Defendant Atlanta Medical personnel.” Thus, AMC had fair notice of the same general fact situation from which the simple negligence claim arose. See Jensen, supra. Consequently, the argument that the removal of the collar arose out of the conduct, transaction, or occurrence set forth in the original complaint appears to be correct.

In its order granting the motion to dismiss, the trial court relied on Thomas v. Med. Center of Central Ga., 286 Ga. App. 147 (648 SE2d 409) (2007), to support its ruling. There, the plaintiff filed a professional malpractice claim against a physician and a hospital based on vicarious liability, then amended the complaint to add professional negligence claims based on the conduct of the nursing staff. Id. We did not analyze the case under OCGA § 9-11-15, ruling instead that allowing “a plaintiff to switch or add professionals upon which she bases her claims would certainly frustrate the intent of OCGA § 9-11-9.1.” Id. at 149. There, we concluded that the plaintiff was not allowed to commence a new professional malpractice action based on the conduct of different professionals outside the statute of limitation. Id. Thomas’s argument is that the instant case is more akin to Jensen than to Thomas, while AMC argues that Thomas is controlling.

However, because in Thomas we analyzed the amendment to the original complaint under OCGA § 9-11-9.1, its holding is inapplicable in the present case inasmuch as the new claims do not allege professional negligence. Thus, we must analyze the claims asserted in Count 10 under OCGA § 9-11-15 and determine whether it arises out of the same conduct, transaction, or occurrence set forth in the original complaint. See OCGA § 9-11-15 (c).

In her original complaint, Thomas set out allegations that were based upon the conduct of AMC and others that related to her visit to the emergency room, her treatment there, and her discharge. Moreover, Thomas made allegations in her original complaint that the cervical spine collar was removed by an employee of AMC. Here both the original and amended complaints set out allegations about the improper removal of the cervical spine collar by an employee of AMC. Specifically, Thomas’s amended complaint alleges that the nurse violated hospital policy by removing the collar, that this caused or contributed to Thomas’s injuries, and that AMC was liable for the nurse’s simple negligence in that regard. Thus, the claims in Count 10 of the amended complaint arise out of the same conduct, transaction, or occurrence set forth in the original complaint. See Jensen, supra at 884 (1) (b); OCGA § 9-11-15 (c). AMC’s argument that the removal of the collar constituted different conduct unrelated to the claims alleged in the original complaint not only fails, but also appears to ignore our directive to construe OCGA § 9-11-15 liberally Therefore, for the foregoing reasons, the trial court’s order dismissing Count 10 of Thomas’s second amended complaint is reversed.

Decided January 18, 2017

Garland, Samuel & Loeb, Robin N. Loeb, Anne H. Coolidge-Kaplan, for appellant.

Huff, Powell & Bailey, Brian K. Mathis, for appellee.

Judgment reversed.

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