author: Ray, Judge.

text:
    A14A1100.
    LEGACY ACADEMY, INC. v. JLK, INC.
    (765 SE2d 472)
   Ray, Judge.

Legacy Academy, a franchisor of childcare centers, sued one of its franchisees, JLK, Inc., alleging breach of contract. The trial court granted summary judgment to Legacy, reserving for trial its decision on the amount of damages due, if any. After a bench trial, the lower court entered a final judgment in favor of Legacy for $9,729 in royalty fees for the months of November and December 2010, in addition to pre- and post-judgment interest and attorney fees. Legacy appeals from the final judgment, arguing that the amount awarded is insufficient and that the trial court erred in finding that Legacy could not recover damages after December 2010, or any advertising fees either before or after that date. Legacy also claims the trial court erred in determining that it failed to provide sufficient proof quantifying its damages and in finding that OCGA § 51-12-13 does not apply as a basis to discount future royalty fees. We reverse the trial court’s findings as to advertising fees. Further, while we find that lost future royalties may properly be an item of damages, we affirm the court’s determination as to the insufficiency of proof of future royalty fee damages. We remand the case for further proceedings not inconsistent with this opinion.

[W]hile we apply a de novo standard of review to any questions of law decided by the trial court, factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. Indeed, because the clearly-erroneous test in effect employs the same standard as the any evidence rule, appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them.

(Punctuation and footnotes omitted.) God’s Hope Builders v. Mount Zion Baptist Church of Oxford, Ga., 321 Ga. App. 435, 439 (741 SE2d 185) (2013). Accord Alday v. Decatur Consolidated Water Svcs., 289 Ga. App. 902, 903 (1) (658 SE2d 476) (2008) (“Regardless of whether evidence supports an opposite finding, we construe the evidence in favor of the trial court’s finding and affirm if there is any evidence to support it”) (footnote omitted).

On July 22, 2002, JLK and Legacy entered into a franchise agreement that Legacy drafted. In pertinent part, the contract provided that JLK pay Legacy five percent of its gross monthly revenue as royalty fees and, under certain circumstances, one percent of its gross monthly revenue as advertising fees. The franchise agreement was to last for 20 years. Approximately 8V2 years into the term, on December 13, 2010, JLK sent a letter to Legacy stating that JLK intended to “terminate all of their relationship with Legacy effective January 1, 2011[,]” and would remove all indicia of Legacy affiliation by that date. After the date of the letter, Legacy never communicated with, sent correspondence to, or otherwise provided assistance to JLK. JLK continued to use Legacy’s name and trademarks until December 31, 2010, and after that date, continued its daycare operations at the same location under the name Old Peachtree Academy. JLK last paid its royalty and advertising fees due under the contract in October 2010, approximately two months prior to sending the letter. Legacy sued in December 2010, seeking accrued royalty and advertising fees through that time as well as future, unaccrued royalty and advertising fees through the contract’s full term, July 2022. The trial court awarded only royalty fees for November and December 2010, the time period when JLK still used Legacy’s name and marks; it awarded no royalties pertaining to what would have been the remainder of the contract term. It also awarded no advertising fees.

1. Legacy first argues that the trial court erred in concluding that it could not recover future royalty fees. The trial court determined that the contract “did not vest the right of unilateral termination in JLK[,]” but that Legacy could not recover future royalty fees between January 2011 and July 2022 because it “admitted the termination of the contract upon filing of the complaint on December 29, 2010.” The trial court reasoned that because the royalty fee was defined by the contract as consideration for JLK’s use of Legacy’s name and trademarks, and that there was no requirement in the contract that JLK actually exercise its right to use the Legacy Academy System and its licensed marks, then the consideration was eliminated when Legacy terminated the contract. We disagree.

On appeal, JLK argues that although its breach for failure to pay past due royalty fees caused Legacy’s loss of those fees, its breach did not cause Legacy’s loss of future fees. Rather, JLK argues that Legacy’s decision to terminate the contract “proximately caused” its own loss of future fees because when Legacy terminated the contract, it “deprived” itself of entitlement to fees because the termination meant JLK could no longer use Legacy’s trademarks. This argument ignores the language of JLK’s letter, which states that JLK will voluntarily stop using those marks, and the fact that JLK voluntarily ceased using the marks.

Although not directly addressed by the trial court, JLK somewhat obliquely raises the specter of a split among courts of various jurisdictions as to whether and under what analysis a franchisor may recover future royalties. Georgia has yet to address this issue head-on. While there appears to be general agreement that a franchisor may recover lost future royalties when a franchisee terminates the relationship, the divide occurs where, as here, the franchisor terminates the relationship. See Douglas R. Hafer and Logan W. Simmons, “Lost Future Royalties: Lessons from Recent Decisions,” 31 Franchise Law Journal 150, Winter 2012. See generally Kiddie Academy Domestic Franchising v. Faith Enterprises DC, 2010 WL 673112 at *5 (II) (B) (3) (b) (D. Md. 2010). Courts considering the issue have used two different analyses: the proximate cause rationale that JLK urges and which has been applied, for example, in Postal Instant Press v. Sealy, 43 Cal.App.4th 1704, 1709-1713 (II) (1996); or a traditional contract analysis, as applied in American Speedy Printing Centers v. AM Marketing, 69 Fed. Appx. 692, 698 (B) (6th Cir. 2003), and as also applied by a Texas appellate court using Georgia law in Progressive Child Care Systems v. Kids ‘R’ Kids Intl., 2008 WL 4831339, *3-*4 (IV) (Tex. Ct. App. Nov. 6, 2008).

The Sealy court held that a franchisee’s “mere failure” to pay royalties was not a “proximate” or “natural and direct” cause of the franchisor’s loss of future royalties, reasoning that the franchisor’s own decision to terminate was the cause of its loss. Sealy, supra at 1711, 1713 (II). Although not part of an express ruling, the Sealy court also remarked on the difficulties in accurately projecting future profits. Id. at 1714 (III), n. 5.

As recognized in Progressive Child Care Systems, supra at *4 (IV), however, Georgia law provides a mechanism for quantifying future profits under general contract principles, and this is how we will proceed. As a threshold matter, our courts recognize that the policy behind a damages award is to place the injured party in the position it would have been in had the contract been fully performed. Turner Broadcasting System v. McDavid, 303 Ga. App. 593, 612 (4) (693 SE2d 873) (2010). Even though anticipated profits may be too speculative to be recovered, in the context of an established business that has definite, certain and reasonable data for ascertaining profits, our courts have determined that such profits may be recovered, even if they cannot be shown with mathematical certainty, where the claimant can show with specificity the probable gain as well as the expenses. KAR Printing v. Pierce, 276 Ga. App. 511, 511-512 (623 SE2d 704) (2005). “Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2.

In the instant action, the following contract terms are relevant to our analysis: Paragraph 2.2:

Franchisee shall operate its Legacy Academy Center under the assumed name of LEGACY ACADEMY CENTER [.] (Emphasis supplied.)

Paragraph 4.2:

Beginning upon commencement of operations of Franchisee’s Legacy Academy Center, Franchisee shall pay to Franchisor a non-refundable monthly royalty fee equal to [five][] percent (5%) of the Franchisee’s Gross Monthly Revenue (as hereinafter defined) (“Royalty Fee”). This Royalty Fee shall be consideration for Franchisor entering into this Agreement and for Franchisee’s right to use the Legacy Academy System and the Licensed Marks.

Paragraph 5.4:

Franchisee further agrees and covenants to operate the Legacy Academy Center and advertise, market and promote its Legacy Academy Center only under the Licensed Marks', to adopt and use the Licensed Marks solely in the manner prescribed by Franchisorf.] (Emphasis supplied.)

Paragraph 8.3:

Franchisee agrees to use the Premises solely for the operation of a Legacy Academy Center in the manner and pursuant to the standards prescribed herein. (Emphasis supplied.)

Paragraph 14.1:

Franchisor may terminate this Agreement prior to the expiration of its term upon the occurrence of any one or more events of default described below (“Event of Default”). Upon the occurrence of any Event of Default which remains uncured ... Franchisor may, at its option, and without waiving its rights hereunder or any other rights available at law or in equity, including its rights to damages, terminate this Agreement and all of Franchisee’s rights hereunder, effective immediately upon the date Franchisor gives Franchisee written notice of termination. Each of the following events shall constitute an Event of Default:... (b) (ii) If Franchisee fails to pay any financial obligation (including applicable interest) to Franchisor within ten (10) business days after the date on which Franchisor gives written notice that such payment is delinquent. (Emphasis supplied.)

Paragraph 15.1:

Upon the expiration or termination (for any reason) of this Agreement, Franchisee shall immediately: ...(b) Pay all sums owing to Franchisor (including interest thereon). Upon termination in connection with any default by Franchisee, such sums shall include actual and consequential damages suffered and costs and expenses (including reasonable attorneys’ fees) incurred, by Franchisor as a result of the Event of Default and the termination. (Emphasis supplied.)

Contrary to the trial court’s ruling, the contract at Paragraphs 2.2 and 5.4 requires JLK to operate as a Legacy Academy with concomitant use of Legacy’s trademarks. Paragraph 8.3 requires that JLK operate its premises only as a Legacy Academy Center, rather than under the other name it chose after sending its purported termination letter. Paragraphs 14.1 and 15.1 clearly provide that if JLK defaults, as it did, through, inter alia, nonpayment, Legacy may terminate the agreement, and a termination “with any default by Franchisee” gives Legacy the right to “actual and consequential damages suffered.”

On appeal, it is undisputed that JLK, as this Court affirmed in Legacy Academy, supra, breached the contract. That breach prompted Legacy’s termination of the contract. The contract contemplated both Legacy’s receipt of the five percent of gross revenue royalty fee and damages upon JLK’s default by, inter alia, its failure to pay that fee. We find that Legacy was entitled to seek recovery of lost future royalties that it would have received if JLK’s breach had not prompted its termination of the franchise agreement prior to the completion of its original 20-year term. The trial court erred in determining that Legacy could not recover because it was the party that terminated the contract, and we reverse.

2. Actual recovery of those royalties, however, turns on whether Legacy made the required showing as to its lost profits. The trial court determined that Legacy presented insufficient evidence of future damages from lost royalty fees. We are constrained to agree.

The trial court determined that “the measure of Legacy’s damages is lost net profits, not gross revenue.” The trial court went on to find that Legacy presented evidence only as to lost gross revenue between January 2011 and July 2022, and that it did not present sufficient evidence of expenses and avoided costs such that lost profits from royalties could be calculated with sufficient specificity.

Ordinarily, anticipated profits are too speculative to be recovered, but where the business has been established, has made profits and there are definite, certain and reasonable data for their ascertainment, and such profits were in the contemplation of the parties at the time of the contract, they may be recovered even though they can not be computed with exact mathematical certainty. Nonetheless, to recover lost profits one must show the probable gain with great specificity as well as expenses incurred in realizing such profits. In short, the gross amount minus expenses equals the amount of recovery.

(Citation and punctuation omitted.) KAR Printing, supra at 511-512.

In the instant case, Melissa Turner, Legacy’s chief financial officer and vice president, testified that her company would reap cost savings as a consequence of no longer providing services and support to JLK. She testified that Legacy’s franchise expenses for JLK were “pretty minimal[.]” Legacy provided at least two quality-assurance visits per year, which Turner estimated cost about $150 per day in employee time, although she stated the employee would be paid a flat salary regardless of whether a JLK visit took place; she also testified that Legacy provided website services that cost $39 per month per franchisee. Other than this, she provided no specifics or data as to the savings associated with other JLK-related expenses, which she testified included training, meetings, curriculum updates, other corporate services, and conferences. She stated that those services would be offered to other franchisees whether JLK was “a part of what we do or not. It’s just very minimal, the things that I would be able to save.” Turner also testified that some portion of the royalties Legacy collected were used to pay overhead and general administrative expenses, but said that she did not break down those expenses for individual franchisees. While testifying that although JLK “signed a contract to be part of the franchise and I still have those costs associated with the franchise,” Turner agreed that she had “done nothing to specifically quantify those numbers[.]”

JLK presented evidence in the form of Legacy’s audited financial reports from 2010-2011 showing that Legacy’s general and administrative expenses, which included accounting, insurance, office expenses, and professional services, declined by approximately $166,704, from $576,837 to $410,133. Turner testified that this reduction in expenses occurred when Legacy saw a reduction in the number of its franchisees. There was no testimony as to how many franchisees were no longer associated with Legacy during this time period.

Here, although Turner provided some specific testimonial evidence as to web costs, she provided no evidence as to the other, albeit reportedly “minimal” expenses. To sufficiently quantify lost profits, a finder of fact “must be provided with figures establishing the business’s projected revenue as well as its projected expenses.” (Citations omitted.) Pounds v. Hosp. Auth. of Gwinnett County, 197 Ga. App. 598, 599 (1) (399 SE2d 92) (1990). Cf. Crosby v. Spencer, 207 Ga. App. 487, 488 (1) (428 SE2d 607) (1993) (plaintiff “gave extensive testimony regarding his computation of lost profits . . . based on his calculation of net profits realized”).

Legacy cites Bennett v. Smith, 245 Ga. 725, 726 (267 SE2d 19) (1980), contending that where a business has expenses that “remain[ed] essentially the same” even when the business is not producing, a factfinder may award lost revenue as opposed to lost profit. Legacy misses a crucial distinguishing element of Bennett, however. Bennett stands for the proposition that unestablished businesses with no revenue and expense history may be able to recover lost revenue instead of lost profits if the amount of their expenses, or lack thereof, is established by reference to subsequent, documented business operations. Id. In the instant case, Legacy is neither a new business with no history of revenue and expenses, nor has it pointed us to data of actual subsequent, documented business operations and expenses.

Here, we have only Turner’s testimony that, other than web fees and costs of inspection, there are other “minimal” yet unquantified expenses. This is insufficient. See Tri-State Systems v. Village Outlet Stores, 135 Ga. App. 81, 84 (2) (217 SE2d 399) (1975) (a “bold assertion” by a business owner as to the amount of lost profits has no evidentiary value “in the absence of any records or statements reflecting the store’s previous and present profits or losses”). While it is true that “the rule that lost profits cannot be speculative or uncertain relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages^]” this pertains only when “the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted.” (Citation and punctuation omitted; emphasis supplied.) McMillian v. McMillian, 310 Ga. App. 735, 739-740 (713 SE2d 920) (2011). Here, such reasonable certainty arguably is lacking; pertinently, our standard of review requires that we affirm the trial court’s factual findings if there is any evidence to support them, and here, there is such evidence. God’s Hope Builders, supra at 439; Alday, supra at 903 (1).

3. Legacy also argues that the trial court erred in disallowing its claim for advertising fees in toto, that is, from November 2010 to July 2022. The franchise agreement provides that franchisees pay one percent of their gross monthly revenue to Legacy as an advertising fee. At trial, Turner testified that 100 percent of the advertising dollars that Legacy collects are used for advertising and marketing expenses, and that not having JLK’s 1 percent reduced Legacy’s ability to advertise. The trial court found that Legacy could not recover advertising fees because it derives no profit from them. This is error.

The advertising fees require a different analysis than the royalty fees. The advertising fee had as its consideration only the provision of advertising itself, and the contract requires Legacy “to expend all, or any portion, of the Fund, in any year, for advertising, marketing or promotional programs or activities[.]” The contract at Paragraph 9.1 specifically states:

Franchisee understands and acknowledges that the Fund is intended to maximize general public recognition and acceptance of the Licensed Marks for the benefit of the Legacy Academy System, as a whole, and that Franchisor or its designee undertake no obligation in administering the Fund to insure that any particular franchise owner benefits directly or pro rata from amounts contributed by such franchisee to the Fund.

Thus, the purpose and expectation of the advertising fee was not an immediate profit to Legacy, but rather an overall enhancement of the Legacy brand per se. When, as here, a contract is breached,

the best measure of the value of the broken promise is the value assigned to it by the parties themselves. . . . [B]asing damages on an amount equal to what the promisor and, especially, the promisee, believed the promise to be worth, reflects better than any other measure the loss caused by the breach[.]... [D]amages based on protection of the promisee’s expectation interest are not only the most accurate means of measuring loss following a breach of contract but also the most typical measure of recovery granted.

Decided November 20, 2014

Reconsideration denied December 15, 2014.

Gregory, Doyle, Calhoun & Rogers, Charles L. Bachman, Jr., Stuart L. Sims, for appellant.

24 Williston on Contracts, § 64:2 (4th ed. 2014).

“We recognize that damages for breach of contract claims are compensatory awards designed to give the injured party the benefit of his bargain.” (Citation omitted.) Turner Broadcasting System, supra at 611 (4). The calculation of damages should be flexible so as to reasonably compensate the injured party and place that party in the position he or she would have been in if the contract had been performed. Id. at 612 (4). Legacy was entitled to receive the benefit of the bargain it made as to the advertising fees. We therefore reverse the trial court’s denial of Legacy’s claim for advertising fees both before and after the contract’s termination, and remand the case for proceedings not inconsistent with this opinion.

4. Finally, Legacy posits that the trial court erroneously determined that OCGA § 51-12-13 is inapplicable here. Because the trial court ruled on this matter only in the context of future royalty fees, given our determination in Division 2, we need not reach this enumeration of error. However, we note that Legacy’s argument that the trial court erred when it found that OCGA § 51-12-13 applies only in the context of torts, not contracts, may have merit.

Judgment affirmed in part and reversed in part, and case remanded with direction.

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

Ichter Thomas, Cary Ichter, W. Daniel Davis, for appellee.

       JLK appealed, but this Court affirmed the trial court’s decision in an unpublished opinion, JLK, Inc. v. Legacy Academy, Case No. A13A0810, 323 Ga. App. XXIII (2013).

       Georgia law recognizes that an anticipatory repudiation occurs when one party to a contract repudiates its obligation to perform before the contract’s time of performance. In such an instance the innocent party has a choice of remedies, which include treating the repudiation as a breach. See Kirkland v. Morris, 233 Ga. 597, 598 (212 SE2d 781) (1975); Piedmont Life Ins. Co. v. Bell, 103 Ga. App. 225, 234-235 (3) (119 SE2d 63) (1961).

       The Sealy decision has been roundly criticized for its abandonment of traditional contract principles, for potentially offering franchisees a way to enjoy the benefits of a franchise agreement without fully paying for those benefits, and for positing that a franchisor may eventually collect its lost “future” royalties — once they become past-due, that is — by repeatedly suing the franchisee. See 31 Franchise Law Journal, supra at 151. It is worth noting that even Sealy does not foreclose future royalties even in the event of the franchisor’s termination so long as the franchisee’s conduct proximately caused the damages. Sealy, supra at 1711, 1713 (II).

       Although the contract actually says “four percent,” the parties stipulated that the correct amount was five percent, which is what JLK paid.

       It is worth noting that in a quantification of damages by lost profits, the lower a franchisor’s expenses, the higher its profits and, thus, the higher the amount of damages it stands to recover assuming the proper proof is present.

       In Bennett, the issue ultimately would have been left for a jury’s determination; the case came to the Court of Appeals on appeal from the trial court’s grant of a directed verdict to the defendant. The Supreme Court found that plaintiffs’ actual evidence that their expenditures were the same both before and after the breach was sufficient to authorize a jury award of lost revenues as damages. Bennett, supra at 726.

       The trial court cited Chouinard v. City of East Point, 237 Ga. App. 266, 270 (5) (b) (514 SE2d 220) (1999), for the proposition that OCGA § 51-12-13 applies only in the torts context. However, Chouinard is distinguishable in that it involves a jury instruction in a condemnation action. Also, the Chouinard court could have reached the same conclusion by recognizing that the statute merely permits, but does not require, application of a 5 percent discount rate; thus, the statute does not foreclose proof of another applicable discount rate. See OCGA § 1-1-7; MARTA v. McCain, 135 Ga. App. 460, 461 (218 SE2d 122) (1975) (statute’s title or heading neither determines meaning of language nor controls legislature’s intent as expressed in statute’s text).


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A14A1177.
    RAZAVI v. MERCHANT et al.
    (765 SE2d 479)
   Phipps, Chief Judge.

This court granted Ehsan Razavi’s application for discretionary appeal to challenge the trial court’s award of attorney fees to Arif Merchant and his corporation, Great Investors Group, LLC (collectively “Great Investors”), pursuant to OCGA § 9-15-14 (b). Razavi contends that the trial court erred in failing to make proper findings of fact and conclusions of law, in failing to determine the reasonableness of the fees sought, and in making a lump sum award. Razavi further contends that the trial court erred in awarding attorney fees in any amount because his quantum meruit claim, upon which the award was based, did not lack substantial justification; the claim for attorney fees was barred by the doctrines of res judicata or collateral estoppel; and fundamental principles of jurisprudence militate against allowing Great Investors multiple attempts at obtaining attorney fees. For the reasons that follow, we vacate the award and remand the case for further action by the trial court.

In August 2011, Razavi filed a complaint against Great Investors, alleging, inter alia, a claim for breach of contract and a claim for quantum meruit. At (a bench) trial, after Razavi had rested his case, the trial court dismissed, inter alia, Razavi’s claim for quantum meruit. At the conclusion of the trial, the court found in favor of Merchant on Razavi’s breach of contract claim (the court denied Razavi’s breach of contract claim); and found in favor of Great Investors on counterclaims it had asserted for payment under certain promissory notes, conversion, and assault.

This is the second appearance of this case before this court; in the first appearance, this court affirmed the judgment of the trial court pursuant to Court of Appeals Rule 36. After the remittitur was issued, a hearing was held in the trial court on a motion for attorney fees pursuant to OCGA § 9-15-14 (b), which motion Great Investors had timely filed, and had later amended.

In seeking attorney fees pursuant to OCGA § 9-15-14 (b), Great Investors argued:

The claims asserted by [Razavi] lacked substantial justification. [Razavi] was not the correct party in interest to bring a quantum meruit complaint against [Great Investors] . Yet, the greatest majority of the time devoted to this case was associated with these quantum meruit claims. Furthermore, even if [Razavi] had been the appropriate party to assert the quantum meruit claim, [Razavi’s] claims were without merit. [Razavi] had no documentation or evidence to support the quantum meruit claim [.]

An affidavit executed by counsel for Great Investors was attached as an exhibit to the amended motion. At the hearing on the motion for attorney fees, counsel for Great Investors stated that his hourly rate was $250, that he had expended 84.3 hours representing Great Investors in the case, and that the total amount of attorney fees Great Investors had incurred in the case was $21,075. Counsel further stated that the total amount of paralegal time expended on the case was 9.9 hours, at a rate of $75 per hour, resulting in paralegal fees of $742.50; the total amount of expenses incurred in the case was $995.87. Thus, according to counsel, the total amount of attorney fees, paralegal fees, and expenses Great Investors had incurred in the case was $22,813.37. At the hearing, counsel for Great Investors told the court that he wanted to “add ... an additional exhibit” as it “just gives a better breakdown of all of the time and expense that I put into this case. . . .”

Counsel for Great Investors further stated that said exhibit broke down the costs of attorney fees and expenses even further than the affidavit which he had attached to the motion “as to the time and expense that was necessary in pursuing not only the claims we brought by way of our counter-claim, but primarily defending the claim that had been brought by [Razavi].” Counsel stated that “[t]he quantum meruit claim took about 50 percent of the time,” explaining that although it was meritless, the parties had “spent so much time” on the claim at and before trial.

The trial court “recall [ed] that this quantum meruit claim basically had no merit whatsoever,” that a company “did the work, it wasn’t even . . . Mr. Razavi,” that “there was scant evidence” on his claim “for the work done on the properties,” that the court had previously found that the lawsuit was brought in the wrong name, and that “that part of the case . . . definitely — lacked substantial justification for [OCGA §] 9-15-14 (b).” The trial court then stated, “I’m going to grant $10,000 in attorney’s fees in this case.” The trial court later entered a written judgment granting Great Investors’ motion, finding that the quantum meruit claim lacked substantial justification, and awarding $10,000 for attorney fees and expenses of litigation.

1. We agree that the trial court erred in failing to make proper findings of fact and conclusions of law, in failing to determine the reasonableness of the fees sought, and in rendering a lump sum award.

(a) The trial court erred in failing to make proper findings of fact and conclusions of law.

“OCGA § 9-15-14 (b) authorizes an award of reasonable and necessary attorney fees upon a finding that an action or any part thereof lacked substantial justification.” An award pursuant to “OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion.” “When a trial court decides in its discretion to award attorney fees, . . . the order must contain express findings of fact and conclusions of law as to the statutory basis for any such award and the conduct which would authorize it.”

As a basis for awarding fees, the trial court’s order in this case states only that “[t]he count set forth in [Razavi’s] complaint alleging quantum meruit lacked substantial justification.” The trial court did not include in its order any factual finding(s) that underlay that conclusion. “This [conclusion] is insufficient to support the award of fees under OCGA § 9-15-14 [(b)].” Accordingly, the award must be vacated and the case remanded for the trial court to enter a judgment “containing findings of fact and conclusions of law as to the statutory basis for the award, if any, and the conduct for which it is authorized.”

(b) The trial court erred in failing to determine the reasonableness of the fees sought.

“[I]n assessing attorney fees against a party, or the party’s attorney, pursuant to OCGA § 9-15-14, the trial judge must make an independent determination concerning the reasonableness and necessity of the fees.” Here, the trial court did not make such determination, either in its order or at the hearing. The court is directed to make such determination on remand.

(c) We also find merit in Razavi’s contention that the trial court erred in rendering a lump sum award. “[T]he court failed to sufficiently specify the basis for the particular amount awarded.”

“[I]n cases involving OCGA § 9-15-14 (a) or (b), the trial court must limit the fees award to those fees incurred because of the sanctionable conduct. ‘Lump sum’ or unapportioned attorney fees awards are not permitted in Georgia.”

The additional exhibit which counsel for Great Investors told the trial court he wanted to introduce as evidence, although apparently presented and discussed at the hearing, was not included in the appellate record, and according to unrefuted comments made by Razavi’s attorney at the hearing, the exhibit included appeal costs, costs for a summary judgment motion which the court had denied, and costs for claims upon which Great Investors did not succeed. The trial court did not specify that it was excluding these prohibited expenses in its award; the court did not specify how it calculated the $10,000 amount, “i.e., it did not identify which billing entries and specific amounts pertained to the unsuccessful efforts and were being subtracted from the overall attorney fees total of [$22,813.37] so as to reach the [$10,000] amount. We need such detail for proper review.”

Therefore, on remand,

[t]he court is directed to indicate the basis for its award. If the court needs supplemental evidence to determine the amount of attorney fees reasonably attributable to [the] prevailing claim [s], it may hold a hearing. Alternatively, if the court concludes it can make the required determination without such evidence, by further considering the evidence already submitted ... , it may do so.

2. We next address Razavi’s contention that the trial court erred in awarding attorney fees in any amount. Razavi argues that although “the standard remedy for errors of the type presented in this appeal is to simply remand the case, and instruct the trial court to enter appropriate findings of fact, or even allow additional evidence, ... a remand would be inappropriate in this particular case,” because the quantum meruit claim upon which the award was based did not lack substantial justification; the claim for attorney fees was barred by the doctrines of res judicata or collateral estoppel; and fundamental principles of jurisprudence militate against allowing Great Investors multiple attempts to obtain attorney fees.

(a) In view of our holding in Division 1, we do not reach Razavi’s contention that his quantum meruit claim did not lack substantial justification.

(b) Razavi contends that because Great Investors “or even the [trial] Court itself” failed to “put in issue” the question of whether Great Investors was entitled to attorney fees pursuant to OCGA § 9-15-14 at the conclusion of the trial, “the principles of res judicata (or collateral estoppel) clearly applied,” and “the trial court’s denial of [Great Investors’] claim for attorney fees, under OCGA § 13-6-11... barred his subsequent claim under OCGA § 9-15-14.” We disagree.

Res judicata acts as a procedural bar to claims that were raised or could have been raised in a prior action. As a procedural bar, res judicata operates to eliminate substantive claims, but it does not do so by reaching the merits of those claims. Indeed, the merits have already been or should have been resolved in the prior lawsuit.

“[T]he related doctrine of collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies.”

“Both [doctrines] require previous litigation and adjudication on the merits.” In this case, the doctrines of collateral estoppel and res judicata are inapplicable “because both require a previous action between the same parties, and the trial court’s orders [concerning Great Investors’ entitlement to attorney fees pursuant to OCGA §§ 13-6-11 and 9-15-14 (b)] came in the same action now on appeal.”

Decided November 20, 2014

Reconsideration denied December 15, 2014.

Johnson & Ward, Stanley E. Kreimer, Jr., for appellant.

C. David Joyner, for appellees.

(c) Razavi contends that a remand would be inappropriate in this case because such would allow Great Investors to have “multiple attempts at attorney fees.” Razavi argues that “it is time for this Court to end its practice of allowing attorneys a special dispensation to ‘re-try’ their claims for attorney fees, where, as here, they have failed to support their claims in the trial court,” and that “[i]t is a fundamental principle of jurisprudence that a litigant is expected to put on his complete case at trial.”

But the record in this case does not reflect that Great Investors failed to support its claims for attorney fees in the trial court. And contrary to Razavi’s argument, the “practice” of remanding cases in these circumstances is not unique to this court, and in this case, the purpose is to afford the trial court (as opposed to a litigant) an opportunity to clarify its intent and the basis for its ruling, so that we can properly review the ruling. Thus, this contention is without merit.

Judgment vacated and case remanded with direction.

Ellington, P. J., and McMillian, J., concur.

       See OCGA § 9-15-14 (e) (“Attorney’s fees and expenses under this Code section may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action.”).

        Moon v. Moon, 277 Ga. 375, 379 (6) (589 SE2d 76) (2003) (punctuation omitted).

        Riddell v. Riddell, 293 Ga. 249, 250 (744 SE2d 793) (2013) (citations and punctuation omitted); Haggard v. Bd. of Regents of the Univ. System of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987); Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236, 240 (2) (620 SE2d 463) (2005).

        In re Serpentfoot, 285 Ga. App. 325, 329 (4) (a) (646 SE2d 267) (2007) (punctuation and footnote omitted).

        Note Purchase Co. of Ga. v. Brenda Lee Strickland Realty, 288 Ga. App. 594, 595 (1) (654 SE2d 393) (2007) (footnote omitted).

       Id. at 596 (1) (footnote omitted); see In re Serpentfoot, supra.

        Duncan v. Cropsey, 210 Ga. App. 814, 816 (2) (437 SE2d 787) (1993) (citation omitted).

       Compare, e.g., Franklin Credit Mgmt. Corp., supra at 241 (2) (b).

       Id. at 240 (2).

        Brewer v. Paulk, 296 Ga. App. 26, 31 (2) (673 SE2d 545) (2009) (citations and punctuation omitted).

        Franklin Credit Mgmt. Corp., supra at 242 (2) (d); see Trotman v. Velociteach Project Mgmt., 311 Ga. App. 208, 214 (6) (715 SE2d 449) (2011).

        Huggins v. Chapin, 233 Ga. App. 109, 110-111 (503 SE2d 356) (1998); see Williams v. Becker, 294 Ga. 411, 414(2) (b) (754 SE2d 11) (2014); Franklin Credit Mgmt. Corp., supra at 243 (2) (d); Bankston v. Warbington, 319 Ga. App. 821, 823 (2) (738 SE2d 656) (2013); Trotman, supra; Brewer, supra.

        Bryan County v. Yates Paving & Grading Co., 281 Ga. 361, 363 (638 SE2d 302) (2006) (citations omitted); see OCGA § 9-12-40.

        Body of Christ Overcoming Church of God v. Brinson, 287 Ga. 485, 486 (696 SE2d 667) (2010) (citation omitted).

        Slakman v. State, 280 Ga. 837, 841 (2) (c) (632 SE2d 378) (2006) (citation omitted).

        State v. Mizell, 288 Ga. 474, 478 (3) (705 SE2d 154) (2010) (citation omitted).

        See Reese v. Grant, 277 Ga. 799 (596 SE2d 139) (2004); United Companies Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) (475 SE2d 601) (1996); Keeler v. Keeler, 263 Ga. 151, 152 (2) (430 SE2d 5) (1993).


text:
    A14A1320.
    LEWIS v. THE STATE.
    (767 SE2d 771)
   Ray, Judge.

Crawford Lewis, Patricia Reid, and Anthony Pope were indicted and charged with violating Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act (OCGA § 16-14-4) and felony theft by taking (OCGA § 16-8-2). As part of a negotiated plea agreement, the State agreed to dismiss the RICO and related theft charges against Lewis in exchange for his guilty plea to one misdemeanor count of hindering and obstructing a law enforcement officer (OCGA § 16-10-24 (a)), conditioned upon Lewis testifying truthfully at the trial against his co-defendants. Lewis entered his negotiated plea with the understanding that the State would be recommending a sentence of 12 months probation, a $500 fine, and 240 hours of community service if he satisfied his obligation to testify truthfully against his co-defendants. The trial court accepted his plea and deferred sentencing until the end of trial. Lewis subsequently testified at trial, and his co-defendants were ultimately convicted. The sole issue presented in this appeal is whether the trial court erred when it imposed a sentence upon Lewis which differed from the understood terms of the negotiated plea. For the reasons that follow, we vacate the sentence and remand the case with direction.

Instead of sentencing Lewis to 12 months probation pursuant to the State’s recommendation, the trial court sentenced Lewis to 12 months in confinement. In so doing, the trial court took the position that Lewis’ plea was not a negotiated plea. However, the record shows that the parties had a plea discussion with the trial judge in chambers prior to Lewis’ plea and that the trial judge “went along” with the State’s recommendation at the time of the plea. Although this discussion was not transcribed, it appears from the colloquy at the time of the plea that the State had made a sentence recommendation and that the trial court had agreed to sentence Lewis in conformity therewith, provided that Lewis later testified truthfully at the trial of his co-defendants. Accordingly, we find that Lewis’ plea was negotiated and that the trial court had accepted the plea under the terms understood by the parties.

1. In what appears to be a matter of first impression for Georgia’s appellate courts, we are called upon to determine whether Lewis, after relying on the plea agreement to his detriment, has a right to force the trial court to adhere to the terms of the negotiated plea that it had earlier accepted.

In Santobello v. New York, 404 U. S. 257 (92 SCt 495, 30 LE2d 427) (1971), the United States Supreme Court acknowledged that plea bargaining is not only desirable, but also that it is essential to the orderly disposition of criminal proceedings. Id. at 260-261. However, plea bargaining is only acceptable when the method of securing the agreement is fair. Id. at 261. In Santobello, the prosecutor promised the defendant that in return for a guilty plea that the prosecutor would not make a recommendation as to the sentence to be imposed. Id. at 258. Asubsequent prosecutor assigned to the case failed to keep this promise, id. at 259, and the Court held that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. at 262.

Here, it was the trial judge, not the prosecutor, who allegedly did not adhere to the understood terms of the negotiated plea. However, we find that the rationale set forth in Santobello should still apply in this case. When a trial judge accepts a negotiated plea and the defendant later relies on the terms of the plea agreement to his detriment by waiving certain constitutional rights that cannot be recovered, the failure of the trial judge to adhere to the terms of the negotiated plea would likely offend the integrity and reputation of the criminal justice system even more than any unkept promise made by a prosecutor. This is so because judges are neutral, whereas prosecutors are adversarial by nature.

In this case, the record shows that the State had made a negotiated plea recommendation and that the trial judge went along with this recommendation at the time she accepted the plea. Although Lewis’ sentencing was deferred, the trial judge had, at the very least, implicitly agreed to sentence him according to the State’s recommendation, provided that he testified truthfully at the trial of his co-defendants. Lewis relied on the trial court’s acceptance of his negotiated plea when he later waived his Fifth Amendment rights and testified on behalf of the State at trial, wherein he provided testimony that incriminated himself. Thus, the trial judge’s alleged failure to adhere to the terms of the negotiated plea in this case would be more detrimental than the prosecutor’s breach in Santobello.

Under the unique circumstances presented here, we find that the interests of justice require that Lewis be sentenced according to the State’s recommendation pursuant to the negotiated plea, provided that he testified truthfully on behalf of the State at the trial of his co-defendants.

2. At the sentencing hearing, both the State and Lewis informed the trial court that Lewis had satisfied his obligation to testify truthfully on behalf of the State at the trial, and both asked the trial court to sentence Lewis in accordance with the State’s recommended sentence. The trial court did not disagree with the parties’ contentions regarding the truthfulness of Lewis’ testimony, but it nevertheless imposed a harsher sentence based on its reasoning that “[Lewis] is a public official, this was on his watch, he stood by. And then he hindered and interfered with and tried to stop the completion of a rightful, lawful investigation.” However, at a subsequent hearing on Lewis’ motion for reconsideration of the sentence, the trial court stated that its decision regarding Lewis’ sentence was based on “the credibility, the believability, the probability or the improbability of the testimony[,]” thereby implying that Lewis may have testified untruthfully at the trial of his co-defendants.

On appeal, both the State and Lewis maintain that Lewis had testified truthfully on behalf of the State. Apparently, the trial court believes otherwise. In light of the parties’ nonadversarial posture with regard to this issue, and to ensure the fairness and integrity of the plea bargain in this case, we find that the parties are entitled, upon remand, to notice of the specific portions of Lewis’ testimony that were material to the State’s case against the co-defendants that the trial court may have considered questionable and an opportunity to present additional evidence and argument with regard to such testimony. Obviously, our holding here would only be applicable upon remand if the trial court continues to have issue with regard to the truthfulness of Lewis’ trial testimony.

For the above reasons, Lewis’ sentence is vacated, and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.

Judgment vacated and case remanded with direction.

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

Decided October 23, 2014

Reconsiderations denied December 15, 2014

Alston & Bird, Bernard Taylor, Michael L. Brown, Kacy M. Brake, Angela Adams, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Kellie S. Hill, Assistant District Attorneys, for appellee.

       Although the trial court has indicated that it would allow Lewis to withdraw his guilty plea, such relief would be wholly inadequate in this case. The trial court indicated that, if he withdrew his guilty plea, it would allow his incriminating testimony to be used against him in the prosecution of all of the charges against him under the indictment.

       While we understand that in hindsight the plea deal might not seem fair given Lewis’ culpability as revealed by the evidence and empathize with the trial court’s concern, that would not be a valid reason to refuse to impose a previously agreed-to sentence.

       In so holding that Lewis is entitled to notice and an opportunity to be heard, we are mindful that persons held in criminal contempt are afforded varying degrees of due process. A holding of indirect contempt requires that the offending person must be advised of the charges, have a reasonable opportunity to respond to them, and have the right to call witnesses. Ramirez v. State, 279 Ga. 13, 15 (2) (608 SE2d 645) (2005). See also Dowdy v. Palmour, 251 Ga. 135, 142 (2) (c) (304 SE2d 52) (1983) (holding that the party sought to be held in contempt must be given “reasonable notice of the specific charges and [an] opportunity to be heard”). Even a party subject to a finding of direct contempt is entitled an opportunity to speak in his or her own behalf. Ramirez, supra at 14 (2). For such opportunity to be meaningful, he or she must know the basis for the charge. In any event, we have held that even in some arguably direct contempt situations, absent a strong interest in summary adjudication, the offending party may be entitled to more normal adversary procedures, including notice and a reasonable opportunity to prepare a defense. Newton v. Golden Grove Pecan Farm, 309 Ga. App. 764, 770 (1) (711 SE2d 351) (2011).

       Should the trial court ultimately find that Lewis testified untruthfully as to the material aspects of the State’s case, we note that such a finding may call into question the validity of the co-defendants’ convictions. See Fugitt v. State, 251 Ga. 451, 452-453 (1) (307 SE2d 471) (1983) (where defendant’s conviction was based on the testimony of a prosecution witness and it was later established without a doubt that the witness had testified untruthfully as to the material aspects of the State’s case, the defendant was entitled to a new trial).

       A reasonable question arises as to whether the trial court should recuse and allow another judge to make the decision as to the truthfulness of Lewis’ testimony and whether he remains entitled to the plea deal. See Newton, supra at 772-773 (3). We, however, do not reach that issue in this appeal. The parties may renew upon remand any recusal motion in that regard in light of our holding herein.


author: Boggs, Judge.

text:
    A14A0895.
    LANE v. WILLIAMS PLANT SERVICES et al.
    (766 SE2d 482)
   Boggs, Judge.

In this discretionary appeal, Kenneth Lane, Sr., appeals from the superior court order affirming the decision of the Appellate Division of the State Board of Workers’ Compensation (“Appellate Division”), which had affirmed the decision of an administrative law judge (“ALJ”). Lane contends that the superior court erred (1) by concluding that no legal error resulted from the Appellate Division’s determination that his request to reinstate income benefits was barred by the two-year statute of limitation and (2) in concluding that the Appellate Division did not err by finding that his employer was not liable for additional medical expenses. For the reasons explained below, we affirm in part, vacate in part, and remand this case for additional findings.

In the absence of legal error, the factual findings of the Board must be affirmed by the superior court and by the Court of Appeals when supported by any evidence in the administrative record. Erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, however, are subject to the de novo standard of review.

(Citation and punctuation omitted.) MARTA v. Thompson, 326 Ga. App. 631 (757 SE2d 228) (2014). “Where statutory provisions are ambiguous, courts should give great weight to the interpretation adopted by the administrative agency charged with enforcing the statute. [Cit.]” Cook v. Glover, 295 Ga. 495, 500 (761 SE2d 267) (2014). Courts should defer to an “agency’s interpretation so long as it comports with legislative intent and is reasonable.” Id. This deference is provided to the Workers’ Compensation Board’s construction of workers’ compensation statutes. See MARTA v. Reid, 295 Ga. 863, 867, n. 6 (763 SE2d 695) (2014).

So viewed, the record shows that Lane received a workers’ compensation award in 2008 for a low back injury. In March 2010, Lane’s employer suspended his income benefits and mailed its last payment of benefits (through March 10, 2010) to him before March 9, 2010. On March 9, 2010, Lane moved for an “interlocutory recommencement of income benefits” in which he contended that “benefits were improperly suspended.” The ALJ denied this motion based upon its determination

that there is not enough evidence on which to order a recommencement of income benefits. The only evidence presented was an old medical record that had been attached to a WC-104 filed the year before.... As a second reason for denying the request, I determine that this issue would be best handled by evidentiary hearing.

Despite this suggestion, Lane took no further action for almost two years. Then, on March 13, 2012, he filed a WC-14 notice of claim requesting a hearing on his request for reinstatement of income benefits from “July 1, 2010 and continuing.” Following a hearing, the ALJ issued an order concluding that Lane’s request for reinstatement of income benefits was barred by the statute of limitation, finding as follows:

OCGA § 34-9-104 (b) states:

[A]ny party may apply under this Code section for another decision because of a change in condition ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision, provided... that at the time of application not more than two years have elapsed since the date the last payment of income benefits pursuant to Code Section 34-9-261 or 34-9-262 was actually made under this chapter.
I find that the Employee must have received the March 1, 2010 WC-2 not long after that date, given that his motion to reinstate income benefits was filed on March 9,2010, the day before his income benefits were to end. As found before, though benefits were suspended effective March 10, the last payment was mailed sometime before March 9. Under OCGA § 34-9-221 (b), the date of mailing is considered the date of payment, if mailed from outside of Georgia. Based on this, I find that the date of the last payment of income benefits under this chapter was “actually made” was therefore sometime before March 9. At any rate, OCGA § 34-9-104 (b) could not have meant for the limitations statute to begin running from the date the last payment of income benefits was actually received, or the Legislature would have said so, rather than saying “actually made.”
Be that as it may, the Employee’s request for a hearing reinstating income benefits was not made until March 13, 2012. Even considering the official suspension date of March 10,2010 as being the date payment was “actually made,” the WC-14 was filed more than two years after that date. But considering that the date payment was actually made was before that date, that puts the Employee’s hearing request even further, however slightly further, outside the limitations period.

With regard to Lane’s request for payment of certain medical expenses, the ALJ concluded that because Lane was discharged from treatment by his authorized physicians on April 13,2010, he was entitled to seek treatment from a doctor of his own choosing and obtain reimbursement from his employer.

Lane appealed from the ALJ’s adverse ruling on income benefits, and his employer filed a cross-appeal from the ALJ’s determination that it was liable for Lane’s medical expenses. The Appellate Division “agree [d] with the [ALJ] that the date of mailing is the date payment was actually made. See OCGA § 34-9-221 (b).” It disagreed with the ALJ’s ruling on the employer’s liability for medical expenses, finding:

The preponderance of competent and credible evidence indicates that the Employer/Insurer did not terminate the Employee’s medical treatment in this case, nor did the authorized physicians terminate care to the Employee. Under these circumstances, the Employee is not entitled to change physicians unilaterally and require the Employer/Insurer to be responsible for the medical expenses.

Lane filed an appeal in superior court, and that court affirmed the Appellate Division’s conclusion regarding the statute of limitation, stating:

The agency charged with administering the Workers Compensation Act has determined that a payment of income benefits is deemed to have been made when an employer or insurer issues a check and mails it, rather than when an employee receives it. The Court finds no basis for rejecting that interpretation of the Act. Construing “payment” to occur when the party obligated to make it takes the last step it is required to do to make it is not inconsistent with the language of the statute. There are many statutes that required mailing to be done in a manner which generates proof of the date of receipt. If the General Assembly had intended the above-cited statute to require proof of receipt to trigger the running of the statute, it could have so provided.

The superior court also affirmed the Appellate Division’s finding that the employer was not liable for Lane’s medical expenses.

1. Lane contends that the determination that his claim for additional income benefits was time-barred is contrary to law. We disagree.

(a) As noted above, this court must give deference to an agency’s interpretation of a statute “so long as it comports with legislative intent and is reasonable.” Cook, supra. We need not decide whether the so-called mailbox rule embodied in OCGA § 34-9-221 (b) should be applied to the limitation period in OCGA § 34-9-104 (b), because the Appellate Division’s determination that a payment is “actually made” when it is mailed to the recipient is reasonable and entitled to deference.

(b) Lane asserts that our decision in Trent Tube v. Hurston, 261 Ga. App. 525 (583 SE2d 198) (2003), mandates the conclusion that a payment is “actually made” under OCGA § 34-9-104 (b) when it is received by the employee. We disagree. In Trent Tube, neither the ALJ, the Appellate Division, nor this court addressed when a mailed payment is “actually made.” While this court stated that the statute of limitation under OCGA § 34-9-104 (b) “does not begin to run until an employee receives his last payment,” 261 Ga. App. at 527 (1), we do not know the form or method by which the employee received his payment in Trent Tube. We note that OCGA § 34-9-221 (a) provides that “[p]ayments shall be made in cash, by negotiable instrument, or, upon agreement of the parties, by electronic funds transfer.”

Additionally, the issue before us in Trent Tube was whether the statute could be interpreted to run from “the date on which [the employee] was no longer entitled to income benefits.” Id. at 526. In rejecting that argument, we stated:

The statute of limitation does not begin to run until an employee receives his last payment. . . whether he is later determined to be entitled to [it] or not. . . . Here, the last payment was indisputably “actually made” to [the employee] on [a date certain] less than two years before he filed his change in condition claim.

Id. at 527-528 (1).

While OCGA § 34-9-104 (b) could be reasonably interpreted to mean that a mailed payment is “actually made” when it is received by the employee, an equally reasonable interpretation is that such a payment is “actually made” when it is placed in the mail. Now that the Board has interpreted the phrase “actually made” in OCGA § 34-9-104 (b) in the context of a mailed payment, we must defer to its reasonable interpretation. We therefore disapprove of any language in Trent Tube that can be construed as holding that a mailed payment is “actually made” when it is received by the employee.

(c) We cannot consider Lane’s alternative argument that the motion he filed on March 9, 2010 should be construed as a timely application under OCGA § 34-9-104 (b), because Lane does not provide a record citation for it in his brief, the Board’s index to its record does not list this motion, and our review of the record did not reveal it. See Waters v. PCC Airfoils, 328 Ga. App. 557, 563 (762 SE2d 617) (2014) (on motion for reconsideration). “An appellant has the burden of providing us with a sufficient record to enable us to review the enumerations of error raised.” (Citation omitted.) Austell Healthcare v. Scott, 308 Ga. App. 393, 395 (1) (707 SE2d 599) (2011).

2. In his remaining enumeration of error, Lane asserts that the finding that his employer is not liable for additional medical expenses is contrary to law.

OCGA § 34-9-200 (a) requires an employer to furnish the injured employee with medical treatment which “shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment,” and OCGA § 34-9-201 (b) (1) allows the employer to satisfy that requirement by posting a panel of six physicians from which an employee may accept services. An employee may make one change from a panel physician to another panel physician, and a panel physician may refer the employee to a nonpanel physician, although that nonpanel physician may not make further nonpanel referrals. OCGA § 34-9-201 (b) (1). An employee may also ask the Board to order a change of physician or treatment, and if granted the employer is liable for those expenses. OCGA §§ 34-9-200 (b); 34-9-201 (e).
“If the employer fails to provide any of the procedures for selection of physicians as set forth in subsection (c) of [OCGA § 34-9-201], an employee may select any physician to render service at the expense of the employer.” OCGA § 34-9-201 (f). Further, if an employer terminates the employee’s medical benefits, the employee is entitled to see any doctor she chooses and make the employer pay for it if she can prove she was still injured at that time as a result of the accident.

(Citation omitted.) Zheng v. New Grand Buffet, 321 Ga. App. 308, 311 (1) (740 SE2d 302) (2013). “If an employer-approved physician releases an employee back into the work force as cured, the employer has not adequately met its duty of providing treatment to the employee if the employee is able to prove that his subsequent medical problems were related to his work-related injury.” Bel Arbor Nursing Home v. Johnson, 192 Ga. App. 454 (385 SE2d 315) (1989).

Here, the record shows that Lane’s authorized treating physicians were Dr. Heiges and Dr. Kenerly. On November 25, 2009, Dr. Heiges prescribed physical therapy for Lane, and his notes state that he would “see him back for recheck at the completion of his physical therapy course.” On January 27, 2010, Dr. Heiges completed a questionnaire for the employer’s attorney that stated, “I would anticipate [maximum medical improvement] at next follow-up visit after conclusion of [physical therapy].” The ALJ noted in its order “that Dr. Heiges discharged the Employee on February 24, 2010.” While a list of exhibits references a “2/24/10 Report of Dr. Heiges,” a copy of this medical record does not appear in the record before us, and it was not mentioned in the Appellate Division’s written decision.

On March 10, 2010, Dr. Kenerly stated that he agreed with the opinions stated by Dr. Heiges in the January 27, 2010 questionnaire. On April 13, 2010, Dr. Kenerly examined Lane and noted that Lane’s last physical therapy visit was March 11, 2010. Dr. Kenerly informed Lane that in relation to his work injury, “he has had proper treatment and time to heal. In reference to his injury, I feel he can return to work without restrictions. He is at [maximum medical improvement]. . . . Weight loss and proper exercise program could help with his chronic low back pain.” Dr. Kenerly also noted that he had “reviewed and agree [s] with Dr. Heiges’ notes and his work status which stated 2/24/10 the patient is released to full work duty.”

Lane testified in the hearing that Dr. Kenerly told him that “he had done all he could do for me.... He told me I could either learn to live with the pain or find another line of work.” Lane also testified that before his last appointment with Dr. Kenerly, Dr. Heiges released him to return to work with no restrictions.

Lane admitted that after his April 2010 appointment with Dr. Kenerly, he never attempted to see Dr. Kenerly or Dr. Heiges again. He also testified that he made no attempt to return to work “on account of [his] back.” In July 2010, he sought treatment with another doctor recommended to him by his attorney. While the record contains testimony that Lane’s workers’ compensation benefits ended in March 2010, a copy of the WC-2 form dated March 1, 2010 that purportedly terminated Lane’s benefits was never filed below.

The Appellate Division disagreed with the ALJ’s conclusion that the authorized physicians had terminated care to Lane, but it relied upon only the following evidence in support of this conclusion:

The evidence reflects that upon the Employee’s last visit to authorized physician Dr. Bradley Heiges, November 25, 2009, Dr. Heiges recommended the Employee return to him for follow-up care following the completion of his physical therapy. Dr. Heiges again offered the employee follow-up care following completion of physical therapy on January 27, 2011.

Because the evidence relied upon by the Appellate Division is incomplete, misstates that physical therapy was completed on January 27, 2011 as opposed to January 27, 2010, and the evidence shows that Lane sought treatment from a third physician after his authorized physicians released him to work without restrictions in April 2010, we must vacate the portion of the superior court’s decision affirming the Appellate Division’s denial of Lane’s request for payment of unauthorized medical expenses. See Boaz v. K-Mart Corp., 254 Ga. 707, 709-710 (1) (334 SE2d 167) (1985) (affirming decisions of ALJ and Board concluding employer was liable for medical treatment after authorized physician discharged employee as a patient and authorized a return to work); Vulcan Materials Co. v. Pritchett, 227 Ga. App. 530, 532 (2) (489 SE2d 558) (1997) (employer liable for medical treatment after employer unilaterally suspended payments when authorized physician released employee to return to work with no restrictions even though physician noted in medical record that “he would see [employee] again ‘if he has any change in symptoms’ ”); Ga. Power Co. v. Brasill, 171 Ga. App. 569, 569-570 (320 SE2d 573) (1984) (affirming superior court’s conclusion that ALJ erred in disallowing past medical benefits where the authorized physician “stated that in his opinion the most recent symptoms were the result not of the [work] injury but of an underlying chronic condition”). Compare Zheng, supra, 321 Ga. App. at 309-312 (1) (affirming conclusion of ALJ and Board that employer was not liable for medical benefits when authorized physician issued prospective work release dependent upon test results and future evaluation and employee failed to return to authorized physician for scheduled appointment).

The record also shows, however, that neither the ALJ nor the Appellate Division addressed whether Lane’s unauthorized medical treatment was related to his work injury. See Bel Arbor Nursing Home, supra, 192 Ga. App. at 454. We must therefore remand this case for a determination of that issue and further proceedings consistent with this opinion.

Decided November 18, 2014

Reconsideration denied December 16, 2014

Morgan & Morgan, Phillip M. Eddings, for appellant.

McClain & Merritt, Jeffrey E. Hickcox, for appellees.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Andrews, P. J., Barnes, P. J., Doyle, P. J., Miller, Dillard, McFadden, Ray, Branch and McMillian, JJ., concur. Phipps, C. J., and Ellington, P. J., concur in judgment only.

       These facts were established by a stipulation of the parties.

       The record before us does not include the March 9, 2010 motion.

       This Code section provides in relevant part:
      . . . p]ncome benefits shall be due and payable in weekly installments. . . . Such weekly payments shall be considered to be paid when due when mailed from within the State of Georgia to the address specified by the employee or to the address of record according to the board. Such weekly payments shall be considered to be paid when due when mailed from outside the State of Georgia no later than three days prior to the due date to the address specified by the employee or the address of record according to the board. Such weekly payments shall be considered to be paid when due at the time they are made by electronic funds transfer to an account specified by the employee.
      Other portions of OCGA § 34-9-221 provide for penalties when income benefits are not paid when due. See, e.g., OCGA § 34-9-221 (e).

       This testimony was admissible to explain Lane’s conduct in seeking care from another physician. See Liberty Mut. Ins. Co. v. Carnley, 135 Ga. App. 599, 600 (1) (218 SE2d 307) (1975), disapproved on other grounds by Dugger v. North Brothers Co., 172 Ga. App. 622, 625 (3) (323 SE2d 907) (1984); Clayton County Bd. of Ed. v. Hooper, 128 Ga. App. 817, 819 (3) (198 SE2d 373) (1973). This conclusion is based upon the law of evidence as it existed before enactment of the new Georgia Evidence Code. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).


author: Ray, Judge. BARNES, Presiding Judge,

text:
    A14A0979.
    SHIRLEY v. THE STATE.
    (765 SE2d 491)
   Ray, Judge.

After a Gwinnett County grand jury indicted Michael Scott Shirley on 17 counts of sexual exploitation of children (OCGA § 16-12-100), he filed a motion to suppress. The trial court denied Shirley’s motion, and we granted his interlocutory appeal. Shirley contends that the trial court erred in denying his motion because the warrant affidavit and application were not supported by probable cause and because the information supporting the warrant was stale. For the reasons that follow, we affirm.

Viewing the evidence to uphold the trial court’s findings and judgment, Henson v. State, 314 Ga. App. 152, 153 (723 SE2d 456) (2012), the record shows that on January 20, 2011, the Federal Bureau of Investigation’s Safe Child Task Force (“FBI”) received information from an investigation by German authorities regarding a website used to distribute child pornography. The German authorities identified several internet protocol (“IP”) addresses, including one from which 150 full- and thumbnail-sized image files had been accessed on July 22, 2009. In response to a federal administrative subpoena, AT&T Internet Services identified the IP address from which the images had been accessed as belonging to Shirley and located at a particular residential address. On February 18, 2011, two police officers, including the one who signed the warrant affidavit, attempted to make contact with Shirley at that address, but received no answer. They left a business card, and later that evening, Shirley left two voicemail messages for one of the officers. On February 21, 2011, Shirley came to the Lawrenceville police department for an interview. He asked that his wife not be interviewed because of her stress level. During the interview, Shirley stated that he did not look at pornography on the internet, and that he had one desktop computer and one laptop that he had purchased for his son. When asked about his knowledge of someone accessing a German website to view child pornography, he invoked his right to remain silent until he could speak with an attorney.

In the search warrant affidavit, the officer listed “Possession Of Child Pornography” pursuant to OCGA § 16-12-100 (b) (8) as the offense at issue, described the role of the computer as an instrumentality for obtaining and storing child pornography, and sought a warrant for Shirley’s residence, including any computers and electronic devices that could possibly contain child pornography. The magistrate indicated on the face of the warrant that she did not consider the officer’s oral testimony in granting the warrant. The warrant was sworn, issued, and executed on February 21, 2011. Shirley filed a motion to suppress, which the trial court denied. This appeal followed.

In State v. Palmer, 285 Ga. 75 (673 SE2d 237) (2009), our Supreme Court described the standards applicable to the various levels of judicial scrutiny involved in the warrant process. A magistrate determines if probable cause exists to issue a warrant by making

a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [her], including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate’s decision to issue a search warrant based on a finding of probable cause. . . . Our appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis ... [and] to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. ... In reviewing the trial court’s grant or denial of a motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review, keeping in mind that a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

(Citations and punctuation omitted.) Id. at 77-78. Applying this standard, we move to Shirley’s arguments in support of his enumerations of error.

1. Shirley asserts that the trial court erred in denying his motion to suppress because the police officer’s affidavit and application were legally insufficient to establish probable cause to show that the images in question were illegal child pornography. Specifically, Shirley argues that the magistrate relied on the officer’s conclusion that the images showed child pornography without using independent facts to evaluate that conclusion. He contends that the affidavit did not describe the images and that there is no indication whether the officer viewed the images.

Georgia has so far not directly addressed the issue of what type of information provides a substantial basis for granting a warrant in the context of child pornography. Thus, we turn to persuasive authority in our circuit and in other jurisdictions for guidance. First, we find no requirement in our state law or in our circuit that a judge who reviews a search warrant application must actually view the images that allegedly show child pornography. See United States v. Smith, 459 F3d 1276, 1291 (III) (B), n. 15 (11th Cir. 2006) (“While it may have been prudent for the magistrate judge to view the photos [of alleged child pornography] independently, we cannot say that, as a matter of law, the court must view the evidence to determine whether probable cause existed”).

Second, although ideally an affidavit would, inter alia, describe the images, other circuits have held that an affidavit using the generalized description “child pornography” may offer “sufficient indicia of probable cause to issue a warrant... in that the meaning of the term ‘child pornography’ and its illegality were sufficiently conveyed so that the judge understood what type of evidence was required.” United States v. Simpson, 152 F3d 1241, 1246-1247 (II) (A) (10th Cir. 1998) (emphasis in original) (finding probable cause where affiant gave judge no copies of unlawful materials and did not describe materials in detail). This is so because the words “child pornography” “need no expert training or experience to clarify their meaning.” (Citation, punctuation and emphasis omitted.) United States v. Layne, 43 F3d 127, 133 (5th Cir. 1995) (warrants seeking “assorted pornographic videotapes; assorted pornographic magazines; assorted devices” and “[cjhild pornography; records of victims; drawings; pictures; computer disks; sexual devices; videotapes; child abuse books; magazines; audiotapes; and any other obscene or child pornographic material” found sufficient to limit officers’ discretion). Id. at 132-133. Accord United States v. Hurt, 808 F2d 707, 708 (9th Cir. 1987), cert. denied, Hurt v. United States, 484 U. S. 816 (108 SCt 69, 98 LE2d 33) (1987) (warrant commanding officers to search for material showing minors “engaged in sexually explicit activity” found sufficient). Further, “[t]he term[ ] ‘child pornography’. . . [is] not so uncertain as to make the warrant defective [.] . . . The Constitution requires no greater precision.” (Citations omitted.) United States v. Koelling, 992 F2d 817, 822 (II) (A) (8th Cir. 1993). See also United States v. Grant, 434 FSupp.2d 735, 746-747 (III) (D. Neb. 2006), aff’d, United States v. Grant, 490 F3d 627, 631-633 (8th Cir. 2007) (computer repairman’s statement that he saw child pornography on computer he was fixing was sufficient to establish probable cause).

As Shirley points out, other circuits have taken a different approach. Compare United States v. Pavulak, 700 F3d 651, 657 (I) (A), 660-665 (II) (3d Cir. 2012) (finding the words “child pornography” inadequate to support probable cause, but declining to suppress the information because officers relied on the warrant in good faith); United States v. Brunette, 256 F3d 14, 17-18 (A) (1st Cir. 2001) (requiring either that a magistrate view the images or receive a detailed factual description).

We, however, are persuaded by the reasoning of the Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits as outlined above. “Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” (Citation omitted.) Palmer, supra at 77-78. The affidavit was supported by probable cause.

Finally, it is well settled that an officer may rely on hearsay information in his affidavit.

Hearsay and even hearsay upon hearsay may be sufficient to furnish the basis for the issuance of a valid warrant if the magistrate is informed of some of the underlying circumstances supporting the affiant’s underlying conclusions and his belief that the informant was credible or his information reliable. There must be a substantial basis for crediting such hearsay.

(Citation and punctuation omitted.) Cochran v. State, 281 Ga. 4, 5-6 (635 SE2d 701) (2006). Here, the magistrate was informed of the circumstances supporting the officer’s conclusions. The affidavit states that the officer relied on information from the FBI, which had received a tip from German authorities about images accessed from a website used to distribute child pornography between certain delineated hours on July 22, 2009. The officer also relied on responses to a federal administrative subpoena issued to AT&T seeking information about the IP address “during this time frame” —• that is, the time frame during which the images were accessed. The information provided in response to the subpoena showed that the IP address was registered to Shirley’s home address. See Buckley v. State, 254 Ga. App. 61, 62 (561 SE2d 188) (2002) (hearsay statements from the German National Police and a U. S. Customs agent could serve as a foundation for probable cause based on the presumption that a government agent is reliable). See also Manzione v. State, 312 Ga. App. 638, 638-642 (719 SE2d 533) (2011) and James v. State, 312 Ga. App. 130, 133-135 (a) (717 SE2d 713) (2011) (both finding probable cause to support warrants even where affiants who relied on multiple levels of hearsay failed to independently confirm reports or informants’ identities, because the informants worked for internet service providers with statutory duty to report child pornography and thus were equivalent to law-abiding concerned citizens with preferred credibility status). While the officer in the instant case “could have done a more thorough job investigating the information” he received, James, supra at 134-135 (a), he was entitled to credit the FBI’s report. Buckley, supra. “[Considering the totality of the circumstances, the agent’s affidavit provided the issuing judge a substantial basis for concluding that probable cause existed sufficient to issue the search warrant for [Shirley’s] residence.” (Footnote omitted.) Manzione, supra at 642.

2. Shirley next argues that the trial court erred in denying his motion to suppress because the warrant affidavit and application were not supported by probable cause showing that Shirley knowingly “possessed” or accessed images that were child pornography.

In making such an argument, Shirley apparently wishes to equate the standard required for probable cause for a search warrant with the standard required for conviction of the crime itself. This is incorrect. A magistrate does not analyze the information in a warrant affidavit using the “beyond a reasonable doubt” standard, but rather makes a common-sense decision whether, given all the circumstances set forth in the affidavit, a “fair probability” exists that evidence will be found in a particular place. Palmer, supra at 77. Further, “[a]n officer’s inference that items sought will be at the place to be searched requires no more than a ‘fair presumption’ to be reasonable.” (Footnote omitted.) Buckley, supra at 62. Here, the officer who applied for the warrant received information from the FBI that images of child pornography had been accessed from a German website by a computer associated with an IP address registered to Shirley’s home address. This presented a “fair probability” that the information would be found at Shirley’s address. The trial court did not err.

3. Finally, Shirley contends that the 19-month delay between when the images were accessed and the application for the search warrant meant the information was stale, thus negating probable cause. He argues that the images may only have been viewed and temporarily saved to a cache, rather than downloaded and permanently saved. In assessing whether the items and information sought by a search warrant are stale, the magistrate views the “totality of the circumstances for indications of the existence of reasonable probability that the conditions referred to in the sworn testimony would continue to exist at the time of the issuance of the search warrant.” (Punctuation and footnote omitted.) Buckley, supra at 62. “[T]he mere passage of time does not equate with staleness.” (Footnote omitted.) Id.

Here, the affidavit stated that the warrant would seek computer and electronic equipment, including stored data and backup tapes, and various diskettes and hard drives, as well as programs used for storage. The affidavit also particularly mentioned child pornographers’ preference to store and “generally maintain” images of child pornography in electronic format, and their propensity to hide, encrypt, or password protect their images. We have specifically held as to a warrant that sought a “computer, computer parts and hard drives containing media and images of sexually explicit material... or stored files which may be found on a computer[,]” that “the items sought here were not perishable, consumable, or disposable, and therefore were unlikely to be affected by the passage of time.” (Punctuation and footnotes omitted.) Birkbeck v. State, 292 Ga. App. 424, 433-434 (6) (665 SE2d 354) (2008), disapproved on other grounds by State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010). See also United States v. McBurnette, 382 Fed. Appx. 813, 815 (11th Cir. 2010) (warrant seeking videos of child pornography related to crime that occurred two years previously was not stale).

Even supposing that the images were viewed and cached, rather than downloaded, they still would have been retrievable for a time. “Files on a computer are less likely than other types of contraband to disappear over time[.]” United States v. Lovvorn, 524 Fed. Appx. 485, 487 (11th Cir. 2013). Based on the character of the evidence sought, and the officer’s affidavit indicating the propensity of those using child pornography to store, save, and hide their information, the warrant was not based on stale information. The trial court did not err.

Judgment affirmed.

Andrews, P. J., Doyle, P. J., Boggs and Branch, JJ., concur. Barnes, P. J., and McFadden, J., dissent.

BARNES, Presiding Judge,

dissenting.

The warrant affidavit in this case alleged only two things to establish probable cause: (1) that the FBI received a lead from unnamed German authorities who had identified several Internet Protocol addresses from which image files were accessed on a website used “to distribute Child Pornography,” and (2) that one of these addresses belonged to an account owned by Shirley. The affiant did not indicate that he had viewed the images, did not include any images or descriptions, and did not include any other facts that would indicate that the images accessed on the website constituted child pornography. Because the affidavit was legally insufficient to establish probable cause that the images were child pornography, the trial court erred in denying Shirley’s motion to suppress. Therefore, I must respectfully dissent.

It is true that

[t]he magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

(Citations and punctuation omitted.) State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009). Nevertheless, while “affidavits for search warrants must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion, this is not to say that probable cause can be made out by affidavits which are purely conclusory[.]” (Citation and punctuation omitted.) Willoughby v. State, 315 Ga. App. 401, 403 (727 SE2d 194) (2012). In other words, a warrant affidavit “should contain more than a conclusory statement which gives the magistrate virtually no basis at all for making an independent judgment regarding the existence of probable cause.” Dobbins v. State, 262 Ga. 161, 163 (3) (415 SE2d 168) (1992).

When these basic principles are applied in the context of an application for a warrant to search for child pornography, I agree with those federal courts that have held that “a magistrate must be able to independently evaluate whether the contents of the alleged images meet the legal definition of child pornography.” United States v. Pavulak, 700 F3d 651, 661 (3d Cir. 2012). See United States v. Brunette, 256 F3d 14, 17-18 (1st Cir. 2001). The affiant’s use of the conclusory label “child pornography” in a warrant affidavit when referring to the alleged images is simply not enough. See id. As the United States Court of Appeals for the Third Circuit has explained, a magistrate’s independent evaluation regarding whether the images are child pornography

can be accomplished in one of three ways: (1) the magistrate can personally view the images; (2) the search-warrant affidavit can provide a “sufficiently detailed description” of the images; or (3) the search-warrant application can provide some other facts that tie the images’ contents to child pornography.

(Citations omitted.) Pavulak, 700 F3d at 661. The third category would include, for example, tying the images at issue to computer files, web pages, or Internet chat rooms with names indicative of child pornography. See, e.g., United States v. Borowy, 595 F3d 1045, 1049 (9th Cir. 2010) (noting that “the file names for at least five of the files were explicitly suggestive of child pornography”); United States v. Simpson, 152 F3d 1241, 1246 (II) (10th Cir. 1998) (affidavit indicated that undercover agent encountered defendant “in an Internet chat room designated as ‘# sexpicshare # % % kidssexpics’ ”).

Decided November 21, 2014

Reconsideration denied December 16, 2014

Crawford & Boyle, Eric C. Crawford, for appellant.

Daniel J. Porter, District Attorney, Richard C. Armond, Assistant District Attorney, for appellee.

In the present case, the magistrate did not personally review any images of alleged child pornography, the warrant affidavit did not provide any description whatsoever of the images, and the warrant affidavit provided no other facts tying the images to child pornography. Instead, the warrant affidavit simply stated that a computer with an Internet Protocol address assigned to Shirley was used to download “full and thumbnail size image files” from a website “which was used to distribute Child Pornography.” This conclusory allegation employing the label “child pornography” “without any details about what the images depict or any other connection to child pornography [,] is beyond the outer limits of probable-cause territory.” Pavulak, 700 F3d at 663. Consequently, the warrant affidavit was legally insufficient to establish probable cause to show that the images in question were child pornography, and the trial court erred in concluding otherwise. Hence, I would reverse the trial court’s denial of Shirley’s motion to suppress.

I am authorized to state that Judge McFadden joins in this dissent.

       The affidavit indicates that the laptop was purchased after the date on which the images allegedly were accessed. When executing the warrant, the police seized, among other things, two laptop computers, a desktop computer, and a number of diskettes, ZIP drives, CDs and DVDs.

       Shirley also argues that there is no indication as to which jurisdiction’s law the images violated. However, the affidavit clearly states that there is probable cause to believe that crimes have been committed in violation of OCGA § 16-12-100 (b) (8). Shirley’s motion to suppress, while decrying the conclusory nature of the affidavit, nonetheless concedes that the affidavit identifies the images as child pornography under OCGA § 16-12-100. This contention is without merit.

       In an unreported decision, one district court stated as much: “There is no requirement in this Circuit that a judge reviewing a search warrant application must examine the images reflecting alleged child pornography.” (Citation omitted.) United States v. Wilson, 2012 WL 7992597 *8 (HI) (A) (N.D. Ga. 2012).

       Shirley’s citation to Barton v. State, 286 Ga. App. 49 (648 SE2d 660) (2007), is inapt, as that case deals with the sufficiency of the evidence needed to convict a defendant of sexual exploitation of children, rather than the standard used to evaluate a motion to suppress. See also New v. State, 327 Ga. App. 87 (755 SE2d 568) (2014), which limits the effect of the holding in Barton, supra.