author: Dillard, Judge.

text:
    A13A1287.
    ATLANTA BUSINESS VIDEO, LLC v. FANTRACE, LLC et al.
    (751 SE2d 169)
   Dillard, Judge.

In Georgia, a plaintiff who fails to appear for a scheduled calendar call risks having its civil action involuntarily dismissed without prejudice by the trial court for want of prosecution. And that is exactly what happened to Atlanta Business Video’s (“ABV”) lawsuit against FanTrace and its agent, Fereidoun Khalilian, when ABV’s counsel failed to appear at the trial court’s April 2012 “No Service/Default Calendar.” ABV appeals, arguing that the trial court’s dismissal of its case against FanTrace was improper because it diligently pursued its claims against that entity. For the reasons noted infra, we affirm.

The record shows that in January 2011, Khalilian approached ABV about performing certain audio and video editing services for a new website called “FanTrace.” In doing so, Khalilian represented to ABV that he was the CEO of FanTrace, which was owned by hip-hop recording artist Aliaune Thiam, who is more widely known as “Akon.” Khalilian advised ABV that FanTrace was in the process of launching a web-based service in which customers could purchase “customized audio and video recordings of various celebrities to be used via a special Facebook application, which in turn could be synched and utilized with the customer’s cell phone, laptop, iPad, and other hardware.” He also explained that FanTrace was behind schedule because all of the employees of the production company it had previously contracted with to complete the project had been involved in a tragic car accident. As such, Khalilian emphasized the need for work to resume on this project immediately. And shortly thereafter, FanTrace and ABV agreed that ABV would perform the necessary work at the rate of $125 per hour. But after several weeks of working together, the relationship between FanTrace and ABV deteriorated, ultimately resulting in this lawsuit.

On appeal, we are not asked to reach the merits of ABV’s claims against FanTrace, but are instead tasked with determining whether the trial court erred in dismissing those claims pursuant to OCGA § 9-11-41 (b), which provides for an involuntary dismissal without prejudice when there has been a “failure of the plaintiff to prosecute or to comply with this chapter or any order of court . . . .” An involuntary dismissal without prejudice for failure of the plaintiff to prosecute “does not operate as an adjudication upon the merits,” and such a dismissal by the trial court for failure to appear “is discretionary . . . and is not subject to review by this [C]ourt in the absence of an abuse of that discretion.” Indeed, as we have previously explained, we will not “substitute our judgment for that of the trial court when there is no obvious or apparent abuse of discretion by the court in what clearly is a matter of discretion.” With these guiding principles in mind, we turn now to ABV’s enumeration of error.

Specifically, ABV argues that the dismissal of its claim against FanTrace constitutes an abuse of the trial court’s discretion because (1) counsel for ABV “does not subscribe to the Fulton County Daily Report and ... he did not receive any other written notice of the hearing [i.e., the court’s ‘No Service/Default Calendar’],” and (2) it “diligently pursued its claims against Fan[T]race.” We disagree.

First, the trial court’s order explicitly rebuts ABV’s unsubstantiated assertion that it failed to receive written notice of the April 2012 proceeding, noting that such notice was “mailed on March 14, 2012[,] informing all parties of the 10:30 a.m. Hearing,” and that “[p]laintiff failed to appear and communicate with the Court[.]” We take the trial court at its word.

And even if ABV failed to receive written notification of the April 2012 “No Service/Default Calendar,” it is ultimately of no consequence. ABV does not dispute FanTrace’s assertions that (1) at the December 2011 calendar, the trial court granted ABV’s request for an additional 90 days to accomplish service of process on Khalilian; (2) the trial court then placed this case on its March 19, 2012 “No Service/Default Calendar”; (3) ABV’s counsel attended the March 2012 calendar; and (4) at the March 2012 calendar, the trial court granted ABV an additional 30 days to perfect service on Khalilian, warning that no additional extensions would be granted.

It is in the foregoing context that we would otherwise consider ABV’s claim that it had no notice of the April 2012 calendar. And even if ABV’s counsel had filed an affidavit with the trial court averring that he did not receive written notification of the April 2012 calendar, it nevertheless strains credulity to suggest that he was not already on notice of this proceeding after the March 2012 calendar—during which the trial court granted him an additional 30 days to perfect service on Khalilian and advised him that no further extensions would be granted. The trial court placed this case on the “No Service/Default Calendar” immediately following its 90-day extension of time to perfect service on Khalilian (i.e., on the March calendar), and there is nothing in the record indicating that ABV had any reason to believe that this matter would not be handled identically as to the second and final extension (and thus placed on the April calendar). Finally, as FanTrace aptly notes, the trial court’s docket, including dates and times of any calendar calls or hearings, is published on the clerk of court’s website. Suffice it to say, it is a fundamental principle of Georgia law that counsel has a duty to keep himself informed as to the progress of the cases he handles in a particular court, “so that [he] may take whatever actions may be necessary to protect the interests of [his] clients.”

As for ABV’s second argument, we fail to see the relevance of ABV’s diligence as to its claims against FanTrace leading up to the April calendar. We have already concluded that ABV knew or should have known that this matter would be placed on the trial court’s “No Service/Default Calendar” for April to make a final determination as to its efforts to perfect service on Khalilian, and ABV cites no authority suggesting that the trial court was in any way precluded from dismissing the entire action without prejudice as a result of its failure to appear at that proceeding. To the contrary, our prior case law in this area has shown extraordinary deference to trial courts that have chosen to dismiss a civil action as a result of a party’s failure to appear at a proceeding, calendar call, or the like. In this respect, ABV’s reliance on the procedurally unique decision of Wallace v. Laughlin is inapt. In Wallace, we reversed the trial court’s involuntary dismissal of a petition for modification of child custody because of “miscommunication and a well-found misunderstanding, compounded by the incapacitating illness of the trial judge familiar with the case,” and “[p] articularly in so important a case as this, where the rights and well-being of the parties’ children are at stake ... .” But this unusual confluence of events bears no relation to the facts of the case sub judice, and as such Wallace is clearly inapplicable.

Likewise unconvincing is ABV’s reliance on this Court’s decision in Cohutta Mills, Inc. v. Bunch, where we noted that a dismissal “should not be based solely on the absence of a party, but should be taken only after a full consideration of all circumstances.” But in making this pronouncement of law, we relied upon our Supreme Court’s decision in Spyropoulos v. Linard Estate; and as we later explained in Ector v. Unison Insurance Co., this Court’s line of cases relying on Spyropoulos all “involved orders dismissing cases with prejudice (entered prior to November 1982, the effective date of an amendment to OCGA § 9-11-41 providing that all dismissals for failure to prosecute would be without prejudice), and therefore do not control here.” As such, Cohutta is likewise inapplicable.

Decided November 7, 2013.

Robert L. Schenk II, for appellant.

Hayden R. Pace, for appellee.

For all of the foregoing reasons, the trial court’s dismissal of ABV’s entire lawsuit without prejudice did not constitute an abuse of discretion and, thus, is affirmed.

Judgment affirmed.

Andrews, P. J., and McMillian, J., concur.

       ABV does not dispute the trial court’s decision to dismiss its case against Khalilian for want of prosecution due to the failure of its counsel to appear at the trial court’s April 2012 No Service/Default Calendar.

        See also Peachtree Winfrey Assoc. v. Gwinnett Cty. Bd. of Tax Assessors, 197 Ga. App. 226, 226 (398 SE2d 253) (1990) (citing statute and supporting case law); Uniform Superior Court Rule 14 (providing that “[o]n its own motion or upon motion of the opposite party, the court may dismiss without prejudice any civil action... upon the failure to properly respond to the call of the action for trial or other proceeding....”); see also OCGA § 15-1-3 (3) (providing that every court has the power to “compel obedience to its judgments, orders, and process and to the orders of a judge out of court in an action or proceeding therein”); OCGA § 15-1-3 (4) (providing that every court has the power to “control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto”). Cf. Pennington v. Pennington, 291 Ga. 165, 166 (728 SE2d 230) (2012) (“Atrial court may strike a party’s pleadings as a proper sanction for wilful refusal to participate in the proceedings pursuant to a court’s inherent power to efficiently administer the cases upon its docket, as well as its power to compel obedience to its orders and control the conduct of everyone connected with a judicial proceeding before that court.”).

       OCGA § 9-11-41 (b).

        Peachtree Winfrey Assoc., 197 Ga. App. at 226; see also Jimenez v. Chicago Title Ins. Co., 310 Ga. App. 9, 14 (3) (a) (712 SE2d 531) (2011); Floyd v. Logisticare, Inc., 255 Ga. App. 702, 702-03 (1) (566 SE2d 423) (2002).

        Peachtree Winfrey Assoc., 197 Ga. App. at 226 (citation and punctuation omitted; emphasis supplied).

       As we have previously and repeatedly explained, unsworn, self-serving statements made in an appellate brief are not evidence and will not be considered by this Court. See Williams v. State, 293 Ga. App. 193, 200-01 (4) (666 SE2d 703) (2008); Palmer & Cay of Ga., Inc. v. Lockton Cos., Inc., 284 Ga. App. 196, 198, n. 1 (643 SE2d 746) (2007).

        See Porter v. Tissenbaum, 247 Ga. App. 816, 818 (3) (545 SE2d 372) (2001) (holding that “trial court was authorized to draw adverse inferences from the uncontradicted testimony of the clerk that she timely sent a copy of the trial calendar with adequate postage to the return address defendants gave with their answer”); see also Hammonds v. Sherman, 277 Ga. App. 498, 498-99 (627 SE2d 110) (2006) (noting that “[t]here is a presumption that the clerk gave proper notice of the calendar call, and the burden is on [the plaintiff] to show that she was not notified,” and that “[i]n general, publication of a court calendar in the county’s legal organ of record is sufficient notice to the parties in a pending action that they must appear”).

        Hipple v. Simpson Paper Co., 234 Ga. App. 516, 517 (1) (507 SE2d 156) (1998) (citation and punctuation omitted); see also Venable v. Block, 138 Ga. App. 215, 218 (4) (225 SE2d 755) (1976).

       ABV’s reliance on Broadwater v. City of Danville, 184 Ga. App. 886 (363 SE2d 316) (1987) is misplaced, as the reasoning of that opinion concerns the interpretive interplay between OCGA § 9-11-41 (b) and Uniform Superior Court Rules 8.4 and 14, and this case does not involve a “published trial calendar.” See Broadwater, 184 Ga. App. at 888 (2). Moreover, both the December 2011 and March 2012 “Notice of Hearing No Service®efault Calendar” explicitly provided that “[fjailure to either appear at the calendar call or file proof that any issues noted above have been resolved may result in dismissal of the action or entry of default judgment.”

        See Ector v. Unison Ins. Co., 228 Ga. App. 520, 521 (3) (492 SE2d 287) (1997) (affirming dismissal of plaintiff’s suit without prejudice “for failure to appear at the calendar call,” even though “the circumstances of this case understandably gave rise to some confusion” because ultimately “it was plaintiff’s responsibility to appear at the call or contact the court to clarify the status of the case in the absence of a continuation order”); see also Kraft, Inc. v. Abad, 262 Ga. 336, 336 (417 SE2d 317) (1992) (“OCGA § 9-11-41 (b) and Superior Court Rule 14 both contain permissive language. Under either provision the court may dismiss an action without prejudice if the plaintiff fails to appear at the call of the case.”).

       217 Ga. App. 444 (459 SE2d 556) (1995).

        Id. at 445 (2).

       166 Ga. App. 395 (304 SE2d 431) (1983).

        Id. at 396 (2).

       243 Ga. 518 (255 SE2d 40) (1979).

       228 Ga. App. 520 (492 SE2d 287) (1997).

        Id. at 521 (3).


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A13A1344.
    CITY OF ATLANTA v. DURHAM et al.
    (751 SE2d 172)
   ANDREWS, Presiding Judge.

The City of Atlanta appeals from the trial court’s order denying its motion to dismiss the complaint filed after Janice Durham was killed during the demolition of a house owned by the City. Yekeisha Durham, the administrator of the estate of Janice Durham, and Eric Durham, Janice Durham’s son, filed the complaint alleging that the City of Atlanta and the company that was hired to perform the demolition were negligent in not checking to make sure that the house was empty before beginning the demolition, and were also negligent in not shutting off the gas to the house before starting the demolition. The complaint and amended complaint also raised claims of nuisance, breach of contract, negligent hiring and negligent supervision.

The City filed a motion to dismiss, arguing that it was entitled to sovereign immunity on all claims. The trial court denied the motion, holding that the City was in lawful control and possession of the property at Daniel Street and had a “non-delegable ministerial duty to make sure that the property was safely demolished and that the demolition complied with the legal regulations that require certain preconditions before a demolition can occur.” The trial court also held that whether the house created a nuisance was an issue for the jury and noted that a municipality, like any other corporation, may be liable for the operation and maintenance of a nuisance, irrespective of whether it is exercising a governmental or ministerial function.

The City appeals the denial of the motion to dismiss as to the negligence claims. Because we conclude that the City was entitled to sovereign immunity on these claims, we reverse in part.

Amotion to dismiss brought under OCGA § 9-11-12 (b) (6) for failure to state a claim upon which relief can be granted should be granted only when: the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and . .. the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

Common Cause/Georgia v. City of Atlanta, 279 Ga. 480, 481 (614 SE2d 761) (2005).

In this case, the City has moved to dismiss on the grounds that the claims are barred by sovereign immunity.

Sovereign immunity is not an affirmative defense (see OCGA § 9-11-8 (c)) that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver.

Steinberg v. City of Atlanta, 213 Ga. App. 491, 493 (444 SE2d 873) (1994).

The applicable Code section is OCGA § 36-33-1, which provides:

(a) Pursuant to Article IX, Section II, Paragraph IX of the Constitution of the State of Georgia, the General Assembly, except as provided in this Code section and in Chapter 92 of this title, declares it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages. A municipal corporation shall not waive its immunity by the purchase of liability insurance, except as provided in Code Section 33-24-51 or 36-92-2, or unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy. This subsection shall not be construed to affect any litigation pending on July 1, 1986.
(b) Municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable.

Thus, municipalities have been subject to suit for negligent performance or nonperformance of their ministerial functions while enjoying immunity from suit for the negligent performance or nonperformance of their governmental functions. See OCGA §§ 36-33-1; 36-33-2. Activities that are undertaken primarily for public benefit rather than for revenue production are governmental functions, and the City is shielded from negligence claims by sovereign or governmental immunity. See Gooden v. City of Atlanta, 242 Ga. App. 786, 788 (531 SE2d 364) (2000) (operation of public recreational swimming facilities, primarily for public benefit rather than for revenue producing, is a governmental function, so that the City is shielded from negligence claims by the doctrine of governmental immunity); City of Atlanta v. Chambers, 205 Ga. App. 834, 839 (424 SE2d 19) (1992) (trial court correctly granted summary judgment on negligent retention and negligent entrustment claims because “garbage collection by the City is a governmental function, for the negligent performance of which the City would be immune from liability”); Sinkfield v. Pike, 201 Ga. App. 652, 653 (411 SE2d 889) (1991) (Because the operation of a fire department is a governmental function, the City is immune from any liability for Pike’s actions regardless of whether his actions were discretionary or ministerial and even if he was negligent.). Compare City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 3 (421 SE2d 113) (1992) (“A municipality’s function of maintaining its streets and sidewalks in a safe condition has been held to be ministerial in nature.”); City Council of Augusta v. Hudson, 94 Ga. 135 (21 SE 289) (1894) (city liable in negligence where it operated a toll bridge for profit).

Further,

[ejmployment decisions, including the retention, hiring and supervision of employees, “necessarily require consideration of numerous factors and the exercise of deliberation and judgment. They are therefore precisely the types of administrative action the discretionary function exception seeks to shield from judicial second-guessing.”

Decided November 7, 2013.

Jeffrey S. Haymore, Jin T. Kim, Cathy Hampton, Laura S. Burton, for appellant.

Stewart, Seay & Felton, Eugene Felton, Jr., Fain, Major & Brennan, Sean L. Gill, for appellees.

Doss v. City of Savannah, 290 Ga. App. 670, 675 (660 SE2d 457) (2008).

The trial court, in denying the City’s motion, relied on City of Thomasville v. Shank, 263 Ga. 624 (437 SE2d 306) (1993). That case involved a claim for nuisance, however and, as previously stated, the City is not appealing the denial of summary judgment on that claim. The case does support the conclusion that the City is entitled to sovereign immunity on the negligence claims. In that case, a homeowner sued because her house had been flooded with raw sewage. The court held:

[T]he doctrine of sovereign immunity and the nuisance exception which makes municipalities liable for maintaining a nuisance have co-existed for many years in this state. Thus, although it enjoys the protection of sovereign immunity in negligence actions, a municipality like any other individual or private corporation may be liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or ministerial function.

(Punctuation omitted; emphasis supplied.) Id.

Likewise, in the case before us, we conclude that the City was exercising a governmental function when it demolished the abandoned house that Durham claimed was a nuisance. Therefore, the City is entitled to sovereign immunity on Durham’s negligence claims, and the trial court erred in not granting the City’s motion to dismiss those claims.

Judgment affirmed in part and reversed in part.

Dillard and McMillian, JJ., concur.

       The City is not appealing the denial of the motion to dismiss on the claims for nuisance and breach of contract.


author: Branch, Judge.

text:
    A13A1536.
    GOYAL v. FIFADARA.
    (751 SE2d 190)
   Branch, Judge.

Ashok Goyal brings this appeal from the trial court’s denial of his motion to transfer these child custody modification proceedings from Gwinnett County to DeKalb County. Goyal argues that the trial court erred when it concluded that he had not established domicile in DeKalb County at the time the child’s mother, appellee Nimita Fifadara, filed the modification petition. We find no error and affirm.

Although domicile may be determined as a matter of law “when the evidence establishes a plain and palpable case,” it is “a mixed question of fact and law ... where the evidence is in conflict.” Dozier v. Baker, 283 Ga. 543, 544 (2) (661 SE2d 543) (2008). “When the trial court conducts a hearing and makes findings of fact on a motion to dismiss or transfer for improper venue, the findings of fact are tested by the any evidence rule.” Viskup v. Viskup, 291 Ga. 103, 104 (1) (727 SE2d 97) (2012), citing Oglesby v. Deal, 311 Ga. App. 622 (716 SE2d 749) (2011).

So viewed, the record shows that in 2010, the DeKalb County trial court awarded Goyal legal and physical custody of the couple’s seven-year-old son. The mother appealed this custody award to this Court, which affirmed. Fifadara v. Goyal, 318 Ga. App. 196 (733 SE2d 478) (2012). On October 23, 2012, two days before the issuance of our opinion in that appeal, Fifadara filed the instant petition to modify custody in Gwinnett County. At 5:10 a.m. on October 25, 2012, Goyal was served at 465 Rams Way, Tucker, Gwinnett County. Goyal then specially appeared by answer, raised the defense of improper venue, and moved to transfer the matter to DeKalb County.

At the January 2013 hearing on the motion to transfer, Goyal testified that for eight years before May 2012, he had lived at 465 Rams Way, Tucker, Gwinnett County; that in March 2012, he closed on the purchase of a condominium at 1388 Orchard Park Drive, Stone Mountain, DeKalb County; that on May 29, 2012, he sent an e-mail, which he introduced into evidence, to Fifadara stating that “effective May 29, 2012,1 plan to move to the Orchard Park residences, a gated community not open to trespassers”; that he actually moved to 1388 Orchard Park Drive on May 29, 2012; and that he had slept at that address during every night spent in Georgia since that time. An electric bill from this address showed that usage began in April 2012 and rose substantially from May to June and afterward of the same year. Goyal testified that he was now renting the Gwinnett County house to three tenants.

Much of Goyal’s testimony was disputed, however. Evidence at the hearing showed that Goyal’s driver’s license listed the Gwinnett County address eight months after his alleged move to DeKalb County, and Goyal had notified neither his homeowner’s insurance carrier nor the Internal Revenue Service of his move to DeKalb County. Fifadara’s private investigator testified that although he saw another man and a woman carrying cleaning supplies outside 1388 Orchard Park Drive on December 13, 2012, and although he saw Goyal’s son’s bicycle at a nearby unit in a different building that Goyal also owned, he never saw Goyal there. Goyal re-enrolled his son in the school district of the Gwinnett County residence in August 2012, more than two months after his alleged move. Although Goyal claimed at the hearing to have used the DeKalb County address in a letter related to his son’s bus schedule, he acknowledged under cross-examination that he had actually signed such a letter using the Gwinnett County address, and his son’s bus ID card and drug prescriptions also bore the Gwinnett County address. Goyal ran for a position on the Gwinnett County School Board in September 2012, and did not submit a change of address form for his DeKalb County address to the post office until “some time” in October. Goyal’s explanation for his presence at the Gwinnett County address at 5:10 a.m. on October 25, when he was served with Fifadara’s petition, was that he was fixing a leak at the property.

During the evidentiary portion of the hearing, the trial court expressed its preliminary view that Goyal had maintained his residence and domicile in Gwinnett County after May 2012. At the conclusion of the hearing, the trial court specifically discounted Goyal’s testimony that he had moved to the DeKalb County address in May 2012 and opined that he had manufactured evidence suggesting such a move at that time only after being served with Fifadara’s petition in October 2012. In its final order, the trial court expressly stated that it did not credit Goyal’s testimony, that his enrollment of his son in Gwinnett County schools and the son’s continued use of the bus to the Gwinnett County address was “incongruous with intent to reside in DeKalb County,” and that “other evidence supportive of [the mother’s] position was proffered to the Court.” This appeal followed.

Goyal argues that the trial court erred when it concluded that he had not proved domicile in DeKalb County at the time Fifadara’s petition was filed. We disagree.

Venue is appropriate in the county where the defendant resides. Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. “In general, one’s legal residence for the purpose of being sued in Georgia is the same county as his or her domicile.” (Citation and footnote omitted.) DavisRedding v. Redding, 246 Ga. App. 792, 793 (1) (542 SE2d 197) (2000). “The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining at the new residence.” OCGA § 19-2-1 (b); see also Oglesby, 311 Ga. App. at 627-628 (2) (“To acquire domicile, it is necessary only to have a concurrence of actual residence and intent to remain”) (citation and punctuation omitted).

Decided November 7, 2013.

Ashok Goyal, pro se.

Shannon V. Alexander, for appellee.

It is true that uncontradicted and direct evidence of a person’s actual residence in a new county and an intent to remain there will prove domicile in that county even in the face of evidence that the person continues to send a child to schools in the former residence’s county. See Oglesby, 311 Ga. App. at 628 (2). Goyal was also free to spend time and pay expenses at the Gwinnett County address even after moving his domicile to DeKalb County. See Dozier, 283 Ga. at 545 (2) (commissioner’s “continued use” of previous address “[did] not prove that he failed to abandon” that address as his domicile). Here, however, the e-mail Goyal sent on May 29 expressed only a future intention to move to DeKalb County; the trial court specifically rejected Goyal’s testimony that he actually began to reside there on or around that date; and abundant circumstantial evidence, which we have outlined above, contradicted that testimony. Rather, this same evidence supported the trial court’s factual finding that Goyal maintained his domicile in Gwinnett County until at least the October 2012 date on which he was served with Fifadara’s petition. We therefore affirm the trial court’s denial of Goyal’s motion to transfer venue to DeKalb County. Viskup, 291 Ga. at 104 (1) (affirming trial court’s summary denial of father’s motion to transfer custody matter when some evidence at the hearing supported the trial court’s determination that he had not changed his county of residence as of the date a mother’s modification petition was filed).

Judgment affirmed.

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


text:
    A13A1559.
    AQUANAUT DIVING AND ENGINEERING, INC. v. GUITAR CENTER STORES, INC.
    (751 SE2d 175)
   ANDREWS, Presiding Judge.

Aquanaut Diving and Engineering, Inc., d/b/a Diving World appeals the grant of summary judgment to Guitar Center Stores, Inc., on Diving World’s claims for damages for the destruction of a sign left on Guitar Center Stores’ property and the loss of an easement. Diving World contends the trial court erred by granting summary judgment to Guitar Center Stores and by failing to grant Diving World’s motion for summary judgment because a license for the sign was created either in writing or under OCGA § 44-9-4. Diving World also argues that the trial court erred by considering certain of Guitar Center Stores’ documents, and by conducting oral argument without a request by the parties and without advance notice. Because we find that the evidence shows that Diving World had an easement for its sign, we must reverse the trial court’s grant of summary judgment to Guitar Center Stores and remand this case with direction to grant summary judgment to Diving World on the issue of liability for the damages to the sign and easement.

1. In Georgia,

[t]he standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When a trial court rules on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. On appeal of the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

(Citation and punctuation omitted.) Overton Apparel v. Russell Corp., 264 Ga. App. 306, 307 (1) (590 SE2d 260) (2003). Further,

[t]o prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).

Lau’s Corp., supra, 261 Ga. at 491.

Construing the evidence and all inferences and conclusions therefrom most favorably toward Diving World as the party opposing the motion, the record shows that Diving World filed suit for the value of an easement and sign which was destroyed by Guitar Center Stores. Diving World initially sublet the space for its store from a tenant who leased the property from the landlord. At that time Diving World paid $34,000 for the previous tenant’s pylon sign which was about 40 feet tall. The sign itself was approximately 15.5 feet by 10.5 feet on each side. The landlord approved the sublease and the purchase of the sign. The special stipulations of the approval provided that “[t]he present outdoor pylon sign may remain as presently situated with Tenant’s logo and company name.”

Sometime after this transaction, Guitar Center Stores purchased the building and land occupied by Diving World where the sign was located, and later Diving World became a month-to-month tenant of Guitar Center Stores. Ultimately, Guitar Center Stores terminated the month-to-month lease.

Diving World then moved to a nearby building that faced another street, but was close enough that the sign would still advertise Diving World’s location. About three years later, Guitar Center Stores without notice to Diving World destroyed the sign.

After Diving World moved for summary judgment, Guitar Center Stores filed a cross-motion for summary judgment. Diving World’s motion relied primarily on Lowe’s Home Centers v. Garrison Ridge Shopping Center Marietta, Ga., L.P., 283 Ga. App. 854(643 SE2d 288) (2007), for the proposition that Diving World had an easement for its sign on Guitar Center Stores’ property and that because the sign was open and obvious, Guitar Center Stores took possession of the property with notice of the easement.

Guitar Center Stores’ cross-motion contended that Diving World had failed to present admissible evidence showing it had a property interest in the sign or a right to continue to use the sign after its lease was terminated. After a hearing at which Diving World did not participate, the trial court granted summary judgment to Guitar Center Stores.

2. Diving World contends the trial court erred by granting summary judgment to Guitar Center Stores and denying its motion because it had an express easement created under OCGA § 44-9-4 to continued enjoyment of the pylon sign, if not an expressed easement already. Diving World contends a parol license is irrevocable if the licensee has incurred expense in reliance on the license because in such cases the license becomes an easement running with the land. OCGA § 44-9-4.

Although Guitar Center Stores contends this argument is not properly before us because it was not raised below, the record shows otherwise. In addition to the numerous references to Lowe’s Home Centers v. Garrison Ridge Shopping Center Marietta, Ga., L.P., in Diving World’s brief in support of its motion for summary judgment, in its brief in opposition to Guitar Center Stores’ motion for summary judgment and reply brief in support of its own motion for summary judgment, Diving World argued:

Said documentation is far more thorough than the documentation submitted in the sentinel case controlling this action (Lowe’s Home Center, Inc. v. Garrison Ridge Shopping Center Marietta, Ga. L.P., [supra, 283 Ga. App. at 854]) [;] however, [Diving World] has also demonstrated, without contradiction, all of the “open and obvious existence of the sign rights” and substantial investment that existed and established the easement in the Lowe’s case.
The facts of the instant case, like in Lowe’s, establish that an easement was created. In Lowe’s . . . the evidence shows that JDN, Garrison Ridge’s predecessor-in-interest, granted Lowe’s a license to construct a sign on its property; that Lowe’s spen[t] over $22,000.00 in doing so; and that the sign has been in continuous use ever since. [Lowe’s, supra, 283 Ga. App. at 855.] Here [Diving World] incurred even higher expenses of approximately $34,000.00 in the purchase of the pylon sign, plus substantial independent insurance thereon as a realty feature . . . and separate $3,500.00. . . . [Diving World] expended substantial sums in reliance upon continued use.
Lowe’s goes on to conclude, “Lowe’s gained an easement running with the land when it expended funds in reliance on the license granted by JDN. The fact that Lowe’s is a tenant on rather than the owner of the property it occupies is irrelevant....” (emphasis added). See also OCGA § 44-9-4.

Given this argument, it cannot be said reasonably that the argument based on OCGA § 44-9-4 was not raised in the trial court.

Thus, addressing the substance of Diving World’s argument, the evidence shows that Diving World submitted in support of its motion an affidavit from its president that stated that, when it moved into the store on the premises now owned by Guitar Center Stores, it executed a sublease taking over the lease of a previous tenant with the approval of the property owners. At the time of the sublease, Diving World purchased the previous tenant’s large pylon sign for $34,000, and executed a promissory note for that amount personally guaranteed by its president. As part of the transaction, the previous tenant and the property owners executed a document stating that “[t]he present outdoor pylon sign may remain as presently situated with Tenant’s logo and company name” without stating an expiration date. When Guitar Center Stores terminated Diving World’s lease in December 2006, Diving World moved to a nearby building and continued to use the sign to advertise its business until June 2010 when Guitar Center Stores tore down the sign. Diving World’s new location was contiguous to its old location.

Guitar Center Stores contends the documents submitted by Diving World contain improper legal conclusions and inadmissible hearsay evidence. OCGA § 9-11-56 (e) governs the use of affidavits at summary judgment:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. All affidavits shall be filed with the court and copies thereof shall be served on the opposing parties. When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

(Emphasis supplied.) Thus,

[t]he rule is that where an affidavit contains conclusions which would not be admissible in evidence, the conclusions are to be disregarded in considering the affidavit in connection with the motion for summary judgment.

Love v. Love, 259 Ga. 423, 424 (1) (383 SE2d 329) (1989).

We have examined the documents submitted by Diving World, primarily the affidavit of Diving World’s president and its attachments, and do not find them to contain mere conclusions. The affidavit states as a matter of fact that Diving World purchased the sign for $34,000, and this statement is supported by a promissory note in the amount of $34,000. The affidavit is also supported by an agreement between the landlord and the lessee that the sign could remain on the property. The attachments to the affidavit are admissible because the affidavit states that the affiant was the custodian of the records containing these documents which were kept as business records in the normal course of Diving World’s business.

[O]n motion for summary judgment an affidavit satisfying the requirements of [former] OCGA § 24-3-14 meets the OCGA §9-11-56 (e) requirement that such an affidavit “ ‘shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.’ [Cit.]” Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 558 (254 SE2d 881) (1979).

Span v. Phar-Mor, Inc., 251 Ga. App. 320, 322 (554 SE2d 309) (2001). Accordingly, the documents submitted by Diving World were legally sufficient to support its motion for summary judgment.

Pursuant to OCGA § 44-9-4, a parol license to use another’s land “is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such case, it becomes an easement running with the land.” According to the Supreme Court of Georgia,

[t]he principle embodied in this section is that[,] if the enjoyment of the license must necessarily be preceded by the expenditure of money and the licensee has incurred expense in executing it, the license becomes an agreement for a valuable consideration and the licensee a purchaser for value.

Miller v. Slater, 182 Ga. 552, 558 (186 SE 413) (1936).

The evidence shows that Guitar Center Stores’ predecessor-in-interest granted Diving World a license to maintain the sign on its property, that Diving World spent over $34,000 in purchasing the sign, and the sign was in continuous use until Guitar Center Stores tore it down. Thus, Diving World gained an easement running with the land when it expended its funds in reliance on the license it was granted.

Because Guitar Center Stores may be burdened with this easement only if the record shows it took possession of the property with notice of the easement, we must consider whether it did so. See Lowe’s, supra, 283 Ga. App. at 856.

Whether a feature of a property amounts to a condition sufficient to charge a purchaser with “reasonable and prudent investigation” is generally a question of fact for the jury. [Hopkins v. Virginia Highland Assoc., 247 Ga. App. 243, 246 (1) (541 SE2d 386) (2000).] However, “when the easement being enjoyed is open and observable to any reasonably prudent person, the question of notice is not one of fact but one of law.” [Joel v. Publix-Lucas Theatres, 193 Ga. 531, 542 (19 SE2d 730) (1942).] [Diving World] must show, then, that the sign at issue here was “of such a size or was so unusual as to place a purchaser on notice, as a matter of law,” of the presence of an easement. [Hopkins, supra, 247 Ga. App. at 246 (1).]

Lowe’s, supra, 283 Ga. App. at 856 (footnotes omitted). Because Guitar Center Stores admitted that the 40-foot tall, 15.5-foot by 10.5-foot sign was open and obvious and Guitar Center Stores was in possession of the property for almost four years before the sign was destroyed, we conclude, as a matter of law, that Guitar Center Stores had actual notice of the sign “sufficient to charge it as a matter of law with a duty to conduct a reasonable and prudent investigation, and that [Guitar Center Stores] therefore took the property subject to [Diving World’s] easement.” Lowe’s, supra, 283 Ga. App. at 857.

Treating Guitar Center Stores’ evidence and all inferences and conclusions therefrom most favorably toward it as the party opposing Diving World’s motion for summary judgment, we do not find that Guitar Center Stores’ submitted evidence establishing either its entitlement to summary judgment or creating a genuine issue for trial. Therefore, the trial court erred by granting summary judgment to Guitar Center Stores and by denying Diving World’s motion for summary judgment.

Decided November 7, 2013.

Eric K. Krasle, for appellant.

Alston & Bird, Kimyatta E. McClary, for appellee.

3. Because of our holding in Division 2, supra, it is unnecessary to address Diving World’s remaining enumerations of error as the issues raised therein are unlikely to recur in the further proceedings of this case.

Accordingly, we reverse the grant of summary judgment to Guitar Center Stores and remand the case to the trial court with direction to grant Diving World’s motion for summary judgment on liability and that the further proceedings on damages be conducted in light of this opinion.

Judgment reversed and case remanded with direction.

Dillard and McMillian, JJ., concur.

       Although entitled a motion for summary judgment, the motion sought only the grant of summary judgment on liability.

       A parol license to use another’s land is revocable at any time if its revocation does no harm to the person to whom it has been granted. A parol license is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such case, it becomes an easement running with the land.


author: ELLINGTON, Presiding Judge.

text:
    A13A1257.
    THE STATE v. NICKERSON.
    (749 SE2d 768)
   ELLINGTON, Presiding Judge.

A Muscogee County jury found Hendrick Nickerson guilty beyond a reasonable doubt of voluntary manslaughter, OCGA § 16-5-2 (a); and possession of a firearm during the commission of a crime against the person of another, OCGA § 16-11-106 (b) (1). The Superior Court of Muscogee County granted Nickerson’s motion for new trial based upon its finding that the judge who presided over the trial had impermissibly commented on the evidence, in violation of OCGA § 17-8-57, when he posed two questions to Nickerson during his testimony in the jury’s presence. The State appeals, arguing that the presiding judge’s questions did not violate OCGA § 17-8-57, and, as a result, Nickerson was not entitled to a new trial. After conducting a de novo review of the record and the superior court’s ruling, we conclude that the superior court erred and, thus, reverse the order granting Nickerson a new trial.

Viewed in favor of the jury’s verdict, the evidence showed that, on March 22, 2007, Nickerson was at his girlfriend’s house when she and the victim’s girlfriend began arguing. When the argument was over, Nickerson left the house and started walking toward his aunt’s house about two blocks away. Before he got there, however, the victim drove up and parked near him, exited the car, and walked toward Nickerson while holding a handgun. Nickerson, who had a handgun in his back pocket, backed away from the victim, who continued to walk toward him, while the two men argued loudly and cursed at one another. Shortly thereafter, as the victim turned away from Nicker-son and appeared to be walking back to his car, Nickerson fired two shots toward the victim. One of the bullets hit the victim in the middle of his back, grazed his spinal column, esophagus, and aorta, and lodged in his heart; he later died as a result of the wound. When Nickerson realized that he had shot the victim, he approached him and repeatedly apologized to him before leaving the scene. According to a bystander, before police officers arrived, an unidentified man approached the victim, picked up the handgun that was on the ground near the victim’s hand, and ran away with it.

Nickerson turned himself in to the police the next day, and the State charged him with murder, felony murder, voluntary manslaughter, and possession of a firearm during the commission of a crime. At trial, the State called an eyewitness to the entire encounter who testified that the victim’s back was turned toward Nickerson and that Nickerson was facing the victim when he (Nickerson) raised his arm and shot the victim. She testified that the victim never pointed his handgun at Nickerson or fired it. The State also showed that police officers found a “live” .380 bullet (i.e., one that had not been fired) next to the victim’s car, where the victim had collapsed after being wounded; two empty .380 shell casings that had been ejected from a semiautomatic handgun thirty-five to forty feet from the car; and another “live” .380 bullet about five or six feet from the empty casings.

Nickerson testified at trial and admitted that he shot and killed the victim, but he claimed that he did so in self-defense. According to Nickerson, the victim walked toward him with a handgun while threatening to kill him. While Nickerson backed away, the victim raised his arm and pointed his gun at him. The gun must have malfunctioned, however, because Nickerson heard a “clicking” sound and saw the victim turn to his side and try to fix his gun. Nickerson then turned around to leave the scene, but, as he did so, he saw the victim turning back toward him and was afraid that the victim was going to shoot him. As a result, while he was still facing away from the victim, Nickerson pointed his gun over his shoulder and fired behind him, toward the victim.

1. On appeal from the superior court’s grant of Nickerson’s motion for new trial, the State argues that the presiding judge did not violate OCGA § 17-8-57 when he asked Nickerson to repeat a physical demonstration showing how he had fired the gun and when he asked Nickerson how many times he shot the gun.

Under OCGA § 17-8-57, “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” The statute also states that,

[s]hould any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

Thus,

a violation of OCGA § 17-8-57 will always constitute “plain error,” meaning that the failure to object at trial will not waive the issue on appeal. On appeal, the issue is simply whether there was such a violation. If so, it is well established that the statutory language is mandatory and that a violation of OCGA § 17-8-57 requires a new trial.

(Citation and punctuation omitted.) Linson v. State, 287 Ga. 881, 883 (2) (700 SE2d 394) (2010) (“Such reversal is required, though, only when such comments are made in the presence of the jury.”) (citations and punctuation omitted). See also Lockaby v. State, 265 Ga. App. 527, 528 (1) (594 SE2d 729) (2004) (noting that the purpose of OCGA § 17-8-57 is to prevent the jury from being improperly influenced by the trial judge).

However,

it is well settled that a trial court may propound a clarifying question in order to develop the truth of a case without violating [OCGA § 17-8-57], The extent of such questioning is a matter of the trial court’s discretion, as long as the questioning does not intimate an opinion as to what has or has not been proved or as to the guilt of the accused.

(Citation and punctuation omitted.) Littlejohn v. State, 320 Ga. App. 197, 203 (2) (739 SE2d 682) (2013). See Mullins v. State, 269 Ga. 157, 158-159 (3) (496 SE2d 252) (1998) (accord). “In propounding questions to a witness to develop the truth or clarify an issue, the trial judge is permitted to ask leading questions[, and] the mere fact that the responses of the witness may be detrimental to the defendant is not cause in itself for granting a new trial.” (Citations omitted.) Sims v. State, 306 Ga. App. 68, 72 (2) (701 SE2d 534) (2010). See also Curry v. State, 283 Ga. 99, 102 (4) (657 SE2d 218) (2008) (holding that, “because the court’s questions were entirely objective, did not suggest any particular answer to the witness, and related to the events surrounding the homicide,... [they] fell within the court’s discretion to ask questions to develop the truth of the case”) (footnote omitted).

The trial transcript in this case shows that the following exchange transpired during defense counsel’s direct examination of Nickerson:

Q: Was [the victim] cursing, using foul language?
A: He [used] one [curse word] when he said I’m going to kill you. Then he told me he didn’t want to hear that shit.
Q: What did you do after you saw [the victim] with the gun cursing you and using that language?
A: I started backing up.
Q: And what happened then? Did he raise the gun at you at any other time?
A: Yeah, he raised the gun at me when he tried to shoot it.
Q: Now, when he tried to shoot the gun[,] where was the gun pointed at?
A: He had it pointed at me. I don’t actually know where he was trying to aim it or whatever.
Q: And what did you see him do? Explain that, how you say he tried to shoot you[.]
A: He tried to shoot [his gun,] and it just clicked. And then he like went down to the side. He went to the side and then tried to fix it or whatever.
Q: Could you come out and stand [in front of the jury].... So supposing [that] . . . you’re [the victim]. . . .
A: Yes, sir.
Q: Just show the jury how he tried to shoot you[.]
A: He tried to shoot it. It clicked. He turned, he turned about right here and tried to fix it.... And then he [was] about to turn back.... I started turning and .. . walking toward the side like this. And then he look[ed] like he [was] going to turn and raise [the gun] and I just turned around and I just shot backwards. I don’t know what he did after that though.
Q: You shot backwards?
A: Yes, sir.
Q: You [weren’t] looking at him?
A: No, because he look[ed] like he [was] about to raise the gun again and try to shoot me.
Q: Okay. You can have a seat.
COURT: Show me one more time how you shot backwards[.]
A: I was like this. When I had turned all the way around like this.
Q: Is that when you fired the weapon?
A: Yes, sir.
Q: And that’s how you fired the weapon?
A: Yes, sir.
COURT: How many shots?
A: At least once or twice.
Q: You can be seated.

(Emphasis supplied.)

The superior court granted Nickerson’s motion for new trial based on its conclusion that the presiding judge’s two questions during this interchange violated OCGA § 17-8-57. Viewingthe judge’s questions in context, however, we conclude that they were interposed to clarify Nickerson’s testimony and to develop the truth in this case and that, as a result, the superior court erred in finding that the questions constituted a violation of OCGA § 17-8-57. See Littlejohn v. State, 320 Ga. App. at 203-204 (2) (concluding that the trial court’s questions to a police investigator about whether an informant’s information was reliable, and to the informant about his transactions with the defendant, were interposed to develop the truth and to clarify the witnesses’ testimony and, thus, did not violate OCGA § 17-8-57); Sims v. State, 306 Ga. App. at 71-72 (2) (concluding that the trial judge did not violate OCGA § 17-8-57 when he questioned the defendant’s alibi witness about when he first learned of the burglary at issue and when he remembered that he had visited the defendant on the day of the burglary). Accordingly, Nickerson was not entitled to a new trial on that basis.

2. In his responsive brief, Nickerson argues that, even if the two questions addressed above did not violate OCGA § 17-8-57, other questions and comments by the presiding judge during trial constituted such violations and, as a result, he was entitled to a new trial on that alternative basis. These alleged errors, however, are not subject to review in this appeal.

The record shows that, in its order granting a new trial, the superior court specifically ruled that, apart from the questions at issue in Division 1, supra, “the other instances referred to by defense counsel in the [new trial] hearing do not merit reversal of the conviction under OCGA § 17-8-57[,]” and that all other grounds raised by Nickerson in his motion for new trial were denied or deemed abandoned.

Consequently, in order to secure appellate review of the superior court’s adverse rulings on the other alleged violations of OCGA § 17-8-57, Nickerson was required to file either a cross-appeal to the instant appeal or a separate notice of appeal. See OCGA §§ 5-7-1 (b); 5-6-38 (a); State v. Wofford, 321 Ga. App. 249, 259 (2) (739 SE2d 110) (2013) (Because the defendant failed to file any post-conviction notice of appeal or a cross-appeal, he failed to bring his allegations of pretrial and trial error within the purview of the State’s appeal.). Because Nickerson failed to file a cross-appeal or an independent appeal, we lack jurisdiction to consider his allegations of error arising from the superior court’s adverse rulings.

Judgment reversed.

Phipps, C. J., and Branch, J., concur.

Decided October 9, 2013

Reconsideration denied November 8, 2013.

Julia Fessenden Slater, District Attorney, Robert B. Bickerstaffll, Assistant District Attorney, for appellant.

John M. Shelnutt, for appellee.

       The superior court judge who granted the motion for new trial was not the judge who had presided over the trial.

       See OCGA § 5-7-1 (a) (8) (authorizing the State to appeal from an order granting a motion for new trial in a criminal case).

       “[T]he first grant of a new trial on special grounds involving a question of law is reviewable in a proper appeal. We review such a question of law de novo and reverse if the trial court committed legal error.” (Citations and punctuation omitted.) O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       Investigators never retrieved the victim’s handgun.

       In addition, during the new trial hearing, the superior court verbally ruled that Nickerson had abandoned his other allegations of a violation of OCGA § 17-8-57, and Nicker-son’s counsel responded, ‘Yes, Your Honor. I understand.”

       OCGA § 5-7-1 (b) provides that, “[i]n any instance in which any appeal is taken by and on behalf of the State of Georgia in a criminal case, the defendant shall have the right to cross appeal. Such cross appeal shall be subject to the same rules of practice and procedure as provided for in civil cases under Code Section 5-6-38.”

       OCGA § 5-6-38 (a) provides, in relevant part, that “the appellee may institute cross appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant; and the appellee may present for adjudication on the cross appeal all errors or rulings adversely affecting him[.]”

       See also State v. Pye, 282 Ga. 796, 803, n. 11 (653 SE2d 450) (2007) (Although the defendant’s brief included a purported enumeration of error and was denominated “Response Brief and Cross-Appeal of Appellee,” because the defendant had not filed a notice of cross-appeal, the Court ruled that it could not consider the purported enumeration of error.); cf. State v. James, 292 Ga. 440, 442 (2) (738 SE2d 601) (2013) (The Court reversed the grant of a new trial on the only ground that the trial court had ruled upon, reinstated the defendants’ convictions, and remanded the case to the trial court for a ruling on the remaining grounds set forth in the defendants’ motions for new trial.); State v. Folsom, 286 Ga. 105, 107-108 (1) (686 SE2d 239) (2009) (After the State appealed the grant of a motion to suppress the defendant’s pre-Miranda statements, the defendant properly filed a cross-appeal to argue that the trial court erred in finding that his post-Miranda statements were admissible.).


text:
    A13A1316.
    STILLWATER ENTERPRISES, INC. et al. v. HANSON PIPE & PRECAST, LLC.
    (751 SE2d 193)
   Branch, Judge.

The guarantor on an open account appeals the entry of summary judgment in favor of the seller/creditor. The guarantor argues that the trial court erred because he was entitled to receive notice that the seller had approved the buyer’s application for credit before the guaranty became binding.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

The facts are not in dispute. Stillwater Enterprises, Inc. sought to establish an account with Hanson Pipe & Precast, LLC, for Stillwater to purchase construction materials from Hanson. On March 13, 2006, Stillwater executed a four-page “Credit Application & Purchase Agreement.” Page 1 of the agreement is a form wherein Stillwater was required to provide information about the company, its officers, trade references, tax status, and other data. Page 2 of the agreement is entitled “Purchase Agreement,” and it provides in pertinent part that “[w]e the undersigned, agree to pay our account in full according to the general Hanson terms and conditions attached... for the purchase of goods and/or services.” The purchase agreement is signed by an officer of Stillwater. Immediately below that signature is a one-paragraph section entitled “Guaranty” which provides as follows:

The undersigned hereby represents that he has a financial interest in said business and on behalf of himself and his marital community hereby agrees to the above terms and conditions and personally and unconditionally guaranties, jointly and severally, payment of said business account. I grant permission for Hanson to use consumer credit reports to determine my credit worthiness as guarantor of the above account. It is understood that credit would not be extended without this assumption of liability and that this obligation and/or liability will continue until terminated in writing sent certified mail return receipt requested.

(Emphasis supplied.) The guaranty is signed by appellant Frank Steinhauer, the president of Stillwater.

Pages 3 and 4 of the agreement are entitled “General Terms and Conditions For Sale.” Most of these terms and conditions pertain to the sales transactions contemplated by the parties as taking place pursuant to the Purchase Agreement. Paragraph 6, which is entitled “Credit Extension,” is an exception. Paragraph 6 states in part:

This contract will not be deemed effective unless and until buyer’s credit is approved by seller, in its sole discretion. If at any time the financial responsibility of the Buyer becomes unsatisfactory to Seller in its sole discretion, Seller reserves the right to require payment in advance or satisfactory security or guarantee that invoices will be paid when due, or to terminate this contract.

The Credit Application & Purchase Agreement did not require the signature of an authorized representative of Hanson.

On March 31, 2006, Hanson sent a letter to Stillwater stating that Hanson had approved Stillwater’s application for credit. But Steinhauer asserts that he never personally received notice from Hanson that the credit application had been accepted or specifying the amount of credit that was being extended to Stillwater. Stillwater thereafter ordered goods from Hanson, which Hanson delivered and Stillwater accepted. Steinhauer does not contend that he was unaware that Stillwater ordered goods from Hanson during this period or that the goods were ordered on credit. Stillwater ultimately failed to pay amounts due Hanson for materials it purchased; the unpaid orders commenced in January 2009 and ended in August 2009. Hanson demanded payment of the liquidated amount but Stillwater and Steinhauer have refused to pay. Hanson filed suit, and following cross-motions for summary judgment, the trial court entered summary judgment in favor of Hanson for the liquidated claim plus interest and attorney fees.

Steinhauer’s sole argument is that the guaranty cannot be enforced because the purchase agreement “was contingent upon a decision by [Hanson] to extend credit to the corporate debtor, and [Hanson] never gave proper notice to ... Steinhauer of the extension of credit or of any amount of the credit account that was established by [Hanson] for the corporate entity.” Steinhauer therefore contends that the trial court erred by granting summary judgment in favor of Hanson and by denying his own motion for summary judgment.

There are, in effect, two contracts at play: the Purchase Agreement and the Guaranty. The Purchase Agreement was by its very terms only a proposal to contract; it was not signed by Hanson and it provided that it would only be effective if Stillwater’s credit was approved. The Purchase Agreement became effective on March 31, 2006, when Hanson notified Stillwater that it had approved Still-water’s application for credit. The question before us is whether Hanson was required to notify Steinhauer directly that Stillwater’s credit had been approved in order to make the Guaranty binding or whether the Guaranty became binding in another manner.

In general, the relevant case law provides that “[a] distinction must be made between an offer to guaranty at a future time, and an absolute present guaranty.” Sanders v. Etcherson, 36 Ga. 404, 409 (5) (1867). With regard to the former, “notice of acceptance [of the offer of guaranty] must be given to the guarantor in order to bind him”; with regard to the latter, “no notice of acceptance is necessary.” Id. See also Upshaw v. Southern Wholesale Flooring Co., 197 Ga. App. 511, 512 (2) (398 SE2d 749) (1990). In construing such a contract of guaranty to determine whether notice of acceptance is required, “the terms and the language [of the guaranty] are to have a reasonable and ordinary interpretation, according to the intent of the parties as disclosed by the instrument read in the light of the circumstances and the purpose for which it was made.” Peck v. Precision Machine Co., 20 Ga. App. 429, 430 (93 SE 106) (1917). In addition, in the event the guaranty is ambiguous regarding whether notice of acceptance is required, “a construction as would create a condition the breach of which would entirely relieve the guarantor, in the absence of such intention appearing in the contract, will not be favored.” Id.

A review of the applicable case law shows that courts have considered varying contractual language and differing surrounding circumstances when determining whether notice of acceptance is required, and that no single rule can be applied automatically. See, e.g., Upshaw, 197 Ga. App. at 512 (2) (notice of acceptance not required where guarantor received consideration in the form of the creditor extending credit to and selling goods to the buyer, even though guaranty covered “any sum(s) of money as may now be due or may hereafter become due”); Wehle v. Baker, 97 Ga. App. 111, 112-113 (102 SE2d 661) (1958) (no notice of acceptance required even though delivery of the goods was in the future where guaranty stated “I guaranty the payment of any goods which A. B. delivers to C. D.”); Ferguson v. Atlanta Newspapers, 93 Ga. App. 622, 623 (7) (92 SE2d 321) (1956) (“where ... it appears that the offer of guaranty contemplated acceptance of the offer by the extension of credit, which also constituted the consideration, the creditor was under no duty to notify the offerees of its acceptance or to prove acceptance otherwise than by the extension of credit”); Sanders, 36 Ga. at 409 (5) (“where the undertaking of the guarantor is positive, and the amount he agrees to guarantee is fixed, and the guaranty is to take effect on the doing or forbearing some definite thing as its consideration, then no notice of acceptance is necessary”; thus, notice of acceptance not required where guaranty promised payment of all debts “heretofore made and now outstanding,” debt was a fixed and outstanding amount, and “guaranty was to take effect on the forbearance to sue”); Peck, 20 Ga. App. at 429 (notice of acceptance not required where guaranty was made at the request of the party extending the credit and it promised to guaranty a stated sum); Sheffield v. Whitfield, 6 Ga. App. 762, 764 (65 SE 807) (1909) (notice of acceptance not required where language of the guaranty showed “that it should be accepted by the actual shipment of the goods, and not by a notice that the guarantors had been accepted and that the goods would be shipped”).

Here, the language of the guaranty shows that Steinhauer made an absolute present guaranty. First, rather than Steinhauer offering to enter into a guaranty, Hanson required Steinhauer to execute the guaranty on Hanson’s own form as a part of Stillwater’s credit application, showing that Hanson was not willing to proceed further with the transaction without Steinhauer’s immediate guaranty. Second, the guaranty states that Steinhauer had a financial interest in Stillwater, showing that Steinhauer received consideration for signing the guaranty, i.e., the guaranty served to protect his financial interest. Third, the terms of the guaranty provide that Hanson would not extend credit to Stillwater without Steinhauer’s guaranty, showing that Steinhauer’s guaranty was a prerequisite to Hanson considering extending credit to Stillwater. Finally, Steinhauer agreed that his guaranty would “continue until terminated in writing sent certified mail return receipt requested,” which suggests that the guaranty became operative at the time it was signed.

Decided November 8, 2013.

Thompson & Slagle, Dewitte Thompson, Jr., Jefferson B. Slagle, John D. Alexander, for appellants.

Austin & Sparks, John T. Sparks, Sr., for appellee.

In sum, the agreement and circumstances show that Steinhauer’s guaranty was requested by Hanson, that it benefitted Steinhauer, and that it contemplated acceptance by Hanson’s consideration of Stillwater’s application for credit; thus the guaranty was an absolute present guaranty designed to commence immediately upon Steinhauer’s signature to enable Hanson to proceed with the credit application process. Under these circumstances, no notice to the guarantor was required. See Upshaw, 197 Ga. App. at 512 (2) (where the stated consideration for guaranty was the extension of credit, guaranty could be accepted by the actual extension of credit and notice of acceptance was not required); Ferguson, 93 Ga. App. at 623 (7); Wehle, 97 Ga. App. at 113; Sheffield, 6 Ga. App. at 765. Compare Brown Grocery Co. v. Planters Bank of Americus, 18 Ga. App. 429, 430-431 (89 SE 523) (1916) (proposed guarantors of a baseball association for the upcoming 1914 season had to be notified because guaranty was a mere proposal to guarantee and only a general letter of credit).

Moreover, Hanson promptly notified Stillwater that it had accepted Stillwater’s application for credit, and Stillwater thereafter commenced to order product from Hanson. Given that Steinhauer was the president of the company, this notice and Stillwater’s subsequent orders gave Steinhauer an adequate means for ascertaining that credit had been extended. See Restatement (Third) of Suretyship & Guaranty § 8, Illustration 1 (1996) (“To induce C to sell goods to D Corporation on credit, S, the president of D Corporation, offers to guarantee payment for the goods. C sells and delivers the goods. C has accepted S’s offer; no notification to S of acceptance is necessary because S has adequate means of learning of C’s performance.”).

Because Steinhauer’s enumeration of error is without merit, we affirm the trial court’s grant of summary judgment in favor of Hanson.

Judgment affirmed.

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

       Although both Steinhauer and Stillwater noticed an appeal, only Steinhauer has filed briefs; Stillwater apparently has abandoned its appeal.


text:
    A13A1436.
    A13A1494.
    A13A1545.
    A13A1599, A13A1600.
    A13A1622, A13A1623.
    THE STATE v. WAKEFIELD. THE STATE v. NUTT. THE STATE v. ARNOLD. THE STATE v. BOYNTON; and vice versa. THE STATE v. WILLIS; and vice versa.
    (751 SE2d 199)
   Branch, Judge.

These five appeals and two cross-appeals arise from revelations that in October 2008, Judge Paschal English had a sexual encounter with Kimberly Cornwell, a Griffin Judicial Circuit public defender who represented five defendants or their co-defendants at trial before Judge English in Fayette County Superior Court between November 2008 and March 2010. Judge English resigned from the bench on April 23, 2010.

All five defendants amended their timely motions for new trial to assert that the English-Cornwell relationship, and/or defendants’ lack of knowledge concerning it, violated the Code of Judicial Conduct and deprived defendants of their rights to due process, including conflict-free representation. In October 2012, the trial court granted new trials in all five cases after finding that the English-Cornwell affair had “continued throughout the trials” at issue, “requiring] voluntary recusal by Judge English,” and that Judge English’s failure to do so had violated the Code of Judicial Conduct and amounted to structural error. We affirm in the five direct appeals and dismiss the cross-appeals as moot.

When a trial court grants a new trial “ ‘on special grounds involving a question of law,’ ” O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009), quoting Govt. Employees Ins. Co. v. Progressive Cas. Ins. Co., 275 Ga. App. 872, 873-874 (1) (622 SE2d 92) (2005), we review the grant “de novo” and “reverse if the trial court committed legal error.” O’Neal, 285 Ga. at 363. Even in such circumstances, of course, we continue to “accept the trial court’s factual findings and credibility determinations unless clearly erroneous.” Suggs v. State, 272 Ga. 85, 88 (526 SE2d 347) (2000) (whether a defendant was deprived of his right to effective counsel is a “mixed question of law and fact”).

So viewed, the record shows that at a first hearing held on April 20, 2011, the State stipulated to the facts that on October 13, 2008, a Fayette County deputy observed and recorded Judge English and Cornwell in a parked car engaged in a sexual act. The deputy told the couple to “move on” and reported the matter to two other Fayette County officers but took no further action. The State also stipulated that Judge English was married at the time and remained so through his resignation and that Judge English had sought to transfer cases on which Cornwell was working to his courtroom, some of which were so transferred on September 22, 2009. A co-worker of Cornwell testified that in August 2009, she and Cornwell were attending a seminar on drug courts in Reno, Nevada, when Cornwell told her that Judge English was also present. The co-worker also testified that Judge English had consistently played an active role in the Griffin Judicial Circuit’s drug courts and maintained an interest in the subject.

At the same hearing, Cornwell’s counsel stated in his place that Cornwell would invoke her right against self-incrimination to any questions concerning the existence, concealment, or duration of her relationship with Judge English. Cornwell’s counsel stipulated, however, that none of Cornwell’s clients were made aware of either the relationship or any conflict that might have arisen from it. Likewise, Judge English’s counsel stated that the judge would invoke his right against self-incrimination as to the duration of his relationship with Cornwell. After an additional stipulation that the State Bar of Georgia had taken no disciplinary action against either Judge English or Cornwell, the State offered evidence showing that the sentences imposed in the five cases at issue were commensurate with others handed down between 1989 and 2010.

At a second hearing held on May 8, 2012, the parties stipulated to the content of an investigator’s report to the district attorney stating that the relationship between Judge English and Cornwell came to light as a result of a tip to the public defender’s office in 2009, and not as a result of any disclosure by the deputy who witnessed the October 2008 sexual encounter. The parties also stipulated that an independent investigation by the Georgia Public Defender Standards Council had found no evidence that any defendant had suffered any actual prejudice as a result of the relationship between Judge English and Cornwell. Judge English’s former administrative assistant also filed an affidavit stating that she had no personal knowledge of any affair between the two; that Judge English usually made his own travel plans without her assistance; and that although he normally apprised her of his travel plans, he did not do so concerning the August 2009 drug court seminar in Reno.

On July 23, 2012, the first judge presiding over the motions for new trial recused himself because, having “heard unsolicited information” on the issue whether the English-Cornwell relationship existed at the time of each defendant’s representation, and having “shared that information with the [parties] and given both sides an opportunity for further investigation,” the judge now considered himself a “potential witness.” A second judge then invited additional briefing on the question whether the nondisclosure of the EnglishCornwell relationship amounted to “structural error” denying the defendants due process of law. After hearing argument, the second judge issued an order finding that as a matter of fact, the record included “subtle intimations” that the couple’s relationship had continued for some time after October 2008, including the following exchange at the March 2010 trial of defendant Nutt:

Court: Anything else, Ms. Cornwell?
Cornwell: Those are all the issues I have, judge.
Court: All right. On this trial, anyway, right?
Cornwell: Yes.
Court: All right.
Cornwell: Let’s limit it to that.
Court: I’m just kidding.

Based on the evidence before it, the second judge concluded that the couple’s “secret relationship continued throughout the trials of the other defendants now before this Court,” “requir[ing] voluntary recusal by Judge English,” and that his failure to recuse himself had violated the Code of Judicial Conduct and deprived each defendant of a fair trial.

1. The State attacks the trial court’s conclusion that the EnglishCornwell relationship continued throughout the period from October 2008 (when the couple was discovered by the Fayette County deputy) to March 2010 (when defendant Nutt’s trial was held) as “not supported by the objective facts before it.” Specifically, the State claims that in light of Judge English’s and Cornwell’s invocations of their privilege against self-incrimination, the record contains no evidence of anything other than a single sexual encounter between the two occurring some weeks before the first of the trials at issue. We disagree.

As our Supreme Court has held, “[n]either [the State nor a criminal defendant] has the right to benefit” from any inferences a factfinder may draw “simply from [a] witness’s assertion of the privilege [against self-incrimination] either alone or in conjunction with questions that have been put to him.” Davis v. State, 255 Ga. 598, 604 (7) (340 SE2d 869) (1986); see also OCGA § 24-5-505 (a) (effective January 1, 2013) (“No party or witness shall be required to testify as to any matter which may incriminate or tend to incriminate such party or witness or which shall tend to bring infamy, disgrace, or public contempt upon such party or witness.”); OCGA § 24-9-27 (2012). Thus neither the State nor the defendants can be permitted to benefit from these witnesses’ invocation of their privileges against self-incrimination. Further, undisputed evidence supported the trial court’s factual finding that the English-Cornwell relationship did in fact continue throughout the period at issue. Specifically, and as we have noted above, undisputed evidence showed that (1) the relationship between Judge English and Cornwell came to light as a result of a tip to the public defender’s office in 2009, months after the October 2008 sexual encounter seen by the Fayette County deputy; (2) Judge English sought to transfer cases on which Cornwell was working to his courtroom, some of which were so transferred on September 22, 2009; (3) although Judge English normally apprised his administrative assistant of his travel plans, he did not do so concerning the August 2009 drug court seminar in Reno also attended by Cornwell; (4) at the seminar, Cornwell told a co-worker that Judge English was also present; and (5) the judge and Cornwell engaged in banter about unspecified “issues” at defendant Nutt’s March 2010 trial. In light of these facts, the trial court was authorized to reach the factual conclusion, supported by some evidence and therefore not clearly erroneous, that the English-Cornwell relationship continued from October 2008 through at least March 2010, when the last of the five trials at issue here was held. See Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012) (“it is well-settled that the ‘clearly erroneous’ standard for reviewing findings of fact is equivalent to the highly deferential ‘any evidence’ test”) (citations omitted).

2. The State argues that the trial court erred when it granted new trials on the basis of the existence and nondisclosure of the sexual relationship between Cornwell and Judge English. We disagree.

(a) As our Supreme Court has recently repeated, “ ‘[a]ll parties before [a] court have the right to an impartial judicial officer.’ ” Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114 (728 SE2d 189) (2012), quoting Stephens v. Stephens, 249 Ga. 700, 702 (2) (292 SE2d 689) (1981).

Judicial integrity is a state interest of the highest order because the power and prerogative of a court to resolve disputes rests upon the respect accorded by citizens to a court’s judgments which, in turn, depends upon the issuing court’s absolute probity.... It is vital to the functioning of the courts that the public believe in the absolute integrity and impartiality of its judges, and judicial recusal serves as a linchpin for the underlying proposition that a court should be fair and impartial.

(Citations and punctuation omitted.) Batson-Cook, 291 Ga. at 114. An issue of judicial disqualification may have constitutional implications because “ ‘a fair trial in a fair tribunal is a basic requirement of due process.’ ” (Punctuation omitted.) Id., quoting In re Murchison, 349 U. S. 133, 136 (75 SCt 623, 99 LE 942) (1955), and citing Caperton v. A. T. Massey Coal Co., 556 U. S. 868 (129 SCt 2252, 173 LE2d 1208) (2009). Individual states “may adopt recusal standards more rigorous than required by due process,” however. Batson-Cook, 291 Ga. at 115. “[B]ecause state statutes and state codes of judicial conduct provide more protection than due process requires, most disputes over disqualification and recusal of judges rarely implicate the constitutional standard.” Id., citing Caperton, 556 U. S. at 889.

Although the trial court analyzed the disqualification issue under the rubric of constitutional due process, including “structural error” analysis, we are authorized to affirm the grant of new trials to these defendants if it is right for any reason raised below. See Gude v. State, 289 Ga. 46, 47 (709 SE2d 206) (2011) (affirming a trial court’s ruling on a motion to recuse under the “right for any reason principle”). We therefore consider whether the evidence supports a conclusion that Judge English violated Georgia’s disqualification rules when he engaged in an undisclosed sexual relationship with Corn-well while presiding over the trials at issue.

(b) OCGA § 15-1-8 (a) provides:

No judge or Justice of any court, magistrate, nor presiding officer of any inferior judicature or commission shall: (1) [s]it in any case or proceeding in which he is pecuniarily interested; (2) [pjreside, act, or serve in any case or matter when such judge is related by consanguinity or affinity within the sixth degree as computed according to the civil law to any party interested in the result of the case or matter; or (3) [s]it in any case or proceeding in which he has been of counsel, nor in which he has presided in any inferior judicature, when his ruling or decision is the subject of review, without the consent of all parties in interest. . . .

There is no allegation that Judge English had any pecuniary interest or previous experience in the matters at issue here, and the relationship between the judge and Cornwell was not one of either consanguinity or affinity as defined by OCGA § 15-1-8 (a) (2). See, e.g., Blalock v. Waldrup, 84 Ga. 145 (10 SE 622) (1889) (party who was married to cousin of judge’s wife was not related to the judge by either consanguinity or affinity).

We thus consider whether Judge English violated the Code of Judicial Conduct when he failed to disclose his relationship with Cornwell or to recuse himself from these trials. Our Supreme Court has held that the Code of Judicial Conduct “provides a broader rule of disqualification” than does OCGA § 15-1-8. Stephens, 249 Ga. at 701 (2). The provision of the code at issue in this case is Canon 3 (E) (1), which provides in relevant part:

Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where... (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding^]

(Emphasis supplied.) Canon 3 (E) (1) is “an inclusive catch-all provision for analysis of alleged disqualifying judicial conduct and sets a general standard that the appearance of partiality requires recusal, followed by specific examples of disqualifying conditions.” (Citation and punctuation omitted.) Batson-Cook, 291 Ga. at 121 (2) (b) (ii); see also id. at 115 (judges “ ‘must avoid all impropriety and appearance of impropriety’ ”) (quoting Commentary on Canon 2 (A)) (citations omitted).

Canon 3 imposes an objective standard on questions as to a judge’s ability to be impartial: a situation in which a judge’s “impartiality might reasonably be questioned” is one raising “ ‘a reasonable perception of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference; it is not based upon the perception of either interested parties or their lawyer-advocates.’ ” (Citation and punctuation omitted.) Jones County v. A Mining Group, 285 Ga. 465, 466 (678 SE2d 474) (2009), quoting Baptiste v. State, 229 Ga. App. 691, 694 (1) (494 SE2d 530) (1997). To disqualify a judge, a bias “must be of such a nature and intensity to prevent the complaining party from obtaining a trial uninfluenced by the court’s prejudgment.” Id. at 467; see also Hargrove v. State, 299 Ga. App. 27, 31-32 (2) (681 SE2d 707) (2009) (atrial court’s failure to recuse sua sponte “ ‘will warrant reversal only where the conduct or remark of the judge constitutes an egregious violation of a specific ethical standard, and it must support the inescapable conclusion that a reasonable person would consider the judge to harbor a bias that affects his ability to be impartial’ ”) (emphasis in original), quoting Lemming v. State, 292 Ga. App. 138, 141 (1) (663 SE2d 375) (2008)).

Although the trial court analyzed the disqualification issue under the rubric of constitutional due process, its findings of fact as to the duration of the relationship between Judge English and Cornwell also support our legal conclusion that Judge English’s failure to recuse himself from the trials at issue was a violation of Canon 3. This is not a case of merely social contact between a judge and a lawyer during a trial involving them both. See, e.g., Demoulas v. Demoulas Super Markets, 428 Mass. 543, 551 (1) (b) (703 NE2d 1141) (1998) (no appearance of impropriety when judge had social contact with lead counsel for party in a restaurant owned by judge’s spouse during the pendency of a trial). Rather, the record before us supports a reasonable inference that Judge English’s ongoing and intimate relationship with Cornwell during each of the five trials at issue caused him to harbor a bias “of such a nature and intensity to prevent the complaining party from obtaining a trial uninfluenced by the court’s prejudgment” and could lead to “a reasonable perception of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference.” Jones County, 285 Ga. at 466-467; see also New York Advisory Committee on Judicial Ethics, Opinion 11-45 (April 28, 2011) (if a relationship between an attorney and a judge is “ongoing and appears to be sufficiently close as to give rise to a perception that the judge’s impartiality might reasonably be questioned,” or “is such that a reasonable person could reasonably conclude that the relationship might influence the judge — and thus call into question the judge’s impartiality,” then “disqualification is required”). As other courts have held in similar circumstances, we therefore conclude that when Judge English failed to disclose his relationship with Cornwell or to recuse himself from the trials at issue here, he violated Canon 3 (E) (1). See Inquiry Concerning Trammell, 48 Cal. 4th CJP Supp. 56, 63-65 (1999) (judge who engaged in a sexual relationship with a criminal defendant while presiding over cases against two co-defendants was guilty of “willful misconduct,” including “bad faith” in his “corrupt purpose” of furthering that relationship, and violated Canon 3 (E) when he failed to disclose the relationship).

(c) Finally, Judge English’s violation of Canon 3 (E) is not harmless error. As our Supreme Court has recently emphasized, “ [ j] udicial integrity is a state interest of the highest order because the power and prerogative of a court to resolve disputes rests upon the respect accorded by citizens to a court’s judgments which, in turn, depends upon the issuing court’s absolute probity.” (Citation and punctuation omitted.) Batson-Cook, 291 Ga. at 114. “It is vital to the functioning of the courts that the public believe in the absolute integrity and impartiality of its judges, and judicial recusal serves as a linchpin for the underlying proposition that a court should be fair and impartial.” (Citation omitted.) Id. Specifically, Canon 3 (E) (1), “an inclusive catch-all provision for analysis of alleged disqualifying judicial conduct,” sets “a general standard that the appearance of partiality requires recusal[.]” (Emphasis supplied.) Id. at 121 (2).

The record before us supports the trial court’s factual conclusion that Judge English was involved in a close personal relationship with Cornwell during each of the trials at issue, and it is undisputed that Judge English failed to disclose this relationship to the parties before us during the criminal trials at issue. Compare Batson-Cook, 291 Ga. at 121-122 (remanding motion to recuse for disposition by a different judge when affidavits in support of the motion set out “objective facts” which “would cause a fair-minded and impartial person to have a reasonable perception of the trial judge’s lack of impartiality”). Although we are mindful of the suffering which new trials may cause the victims in some or all of these cases, we are nonetheless compelled to draw the legal conclusion that Judge English’s violations of Canon 3 require new trials for each of these five defendants.

Decided November 8, 2013

Scott L. Ballard, District Attorney, Jeremy M. Hayes, Assistant District Attorney, for appellant.

Jennifer A. Trieshmann, Steven E. Phillips, for appellees.

3. Our affirmance of the trial court’s grant of new trials moots the cross-appeals concerning the sentences imposed on defendants Boynton and Willis.

Judgments affirmed in Case Nos. Al 3A1436, Al 3A1494, Al 3A1545, A13A1599, and A13A1622. Appeals dismissed as moot in Case Nos. A13A1600 and A13A1623.

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

       Christopher Wakefield and Travion Willis (Case Nos. A13A1436 and A13A1622) were convicted of armed robbery, kidnapping, aggravated assault, possession of a firearm during the commission of a crime, and theft of a motor vehicle on November 12, 2008. William Nutt (Case No. A13A1494) was convicted of aggravated child molestation and aggravated sexual battery on March 24, 2010. Rashad Arnold (Case No. A13A1545) was convicted of burglary on September 29, 2009. Calvin Boynton (Case No. A13A1599) was convicted of armed robbery, aggravated assault, possession of a sawed-off shotgun, and possession of marijuana on September 15,2009. Case No. A13A1600 is Boynton’s cross-appeal to Case No. A13A1599; Case No. A13A1623 is Willis’s cross-appeal to Case No. A13A1622. See State v. Wofford, 321 Ga. App. 249, 259 (2) (739 SE2d 110) (2013) (a defendant seeking to assert errors other than those relied upon to obtain a new trial under OCGA § 5-7-1 (a) (7) must file a notice of cross-appeal in the trial court as provided by OCGA § 5-7-1 (b)).

       According to an investigator’s report, the video recording of the incident was destroyed automatically after one year.

       There are times when “[t]he materiality of the evidence outweighs the testimonial privilege.” Brown v. State, 242 Ga. 536, 539 (3) (250 SE2d 438) (1978). Specifically, a witness may be compelled “to answer questions tending to bring infamy, disgrace or public contempt upon himself or his family, if the proposed evidence is material to the issues in the case.” Id. at 538-539 (3), citing Brooks v. State, 233 Ga. 524(2) (212 SE2d 355) (1975). “[I]tis only where the proposed answer has no effect on the case except to impair the witness’ credibility that the witness may fall back on the privilege.” Brown, 242 Ga. at 539 (3). Evidence tending to show that Judge English and Cornwell were engaged in an adulterous relationship during some or all of the five trials at issue would arguably be material as to whether Judge English violated Canon 3 (E) (1) by failing to disclose that relationship. When the trial court asked whether any party sought to compel either Judge English or Cornwell to testify on this subject, however, none wished to do so, with the result that neither of these witnesses can be said to have produced any evidence or presumption on the subject of the relationship’s duration.

       Applying Stephens, this Court concluded in 1998 that “[w]hen considering the issue of disqualification, both OCGA § 15-1-8 and Canon 3 [of the Code of Judicial Conduct] should he considered and applied.” Kurtz v. State, 233 Ga. App. 186, 188 (3), n. 1 (504 SE2d 51) (1998). Our Supreme Court confirmed Kurtz on this point in 2009. Jones County v. A Mining Group, 285 Ga. 465 (678 SE2d 474) (2009).