author: Ray, Judge.

text:
    A14A0436.
    WATERS v. PCC AIRFOILS, LLC et al.
    (760 SE2d 5)
   Ray, Judge.

Janet Waters filed this discretionary appeal after the superior court reversed an award of attorney fees by the State Board of Workers’ Compensation (the “Board”) against her former employer, PCC Airfoils, Inc. The Board had determined, pursuant to OCGA § 34-9-108 (b) (l), that PCC Airfoils had unreasonably defended against Waters’ claim for benefits. For the reasons that follow, we reverse the superior court’s order.

Waters alleged that she was injured in accidents arising out of and in the course of her employment on October 23, 2009, and on November 4, 2010. Both dates involved, among other allegations of injury, claims of repetitive work injuries to her left hand and wrist. The October 23, 2009, injury is the only one at issue in this appeal.

The record before us presents conflicting information about Waters’ injuries, medical evaluations, and workers’ compensation status, as we will detail below. The issue before us is whether, given the conflicting information, the superior court erred in reversing the Board and determining that PCC Airfoils raised a reasonable defense to Waters’ claim for attorney fees.

Waters did “touch up” work for PCC Airfoils for about 20 years, using an air gun to grind bits of excess metal off of parts. The job required her to use her right hand to “mash” the airgun, and to use her left hand to flip, turn, and move the part. She was diagnosed with “severe bilateral median nerve entrapment in the carpal tunnel, right much worse than left” on October 26,2009, three days after the initial reported injury date. Waters notified PCC Airfoils of the complaints involving both hands, and an employer’s representative coordinated her treatment with Dr. David M. Banks, whom Waters chose from the employer’s panel of physicians.

On November 17, 2009, Banks noted that “no significant repetitive duties are required from the left hand.” (Emphasis supplied.) However, on November 23, 2009, Banks recommended surgery on both wrists. His clinical notes state that Waters presented for evaluation of

bilateral upper extremity tingling and numbness. Workers’ compensation manager is present. Ms. Waters complains of severe bilateral hand tingling and numbness. Workers’ compensation issue [N] erve conduction studies were reviewed which showed neurocompressive lesion at bilateral wrists, right more severe than left. . . . Bilateral carpal tunnel syndrome; failure of conservative treatment____At this point have recommended bilateral endoscopic carpal tunnel releases. She would like to consider whether she would like to have this in a sequential or staged fashion.

(Emphasis supplied.) At a hearing before an administrative law judge (“ALJ”) regarding both the October 2009 and November 2010 injury dates, Waters testified that Dr. Banks recommended surgery on “both hands,” but she elected not to have surgery on both hands at once so that she could retain the use of one hand. None of Waters’ physicians testified at the hearing.

On December 16,2009, Waters had carpal tunnel release surgery only on her right wrist. PCC Airfoils, as self-insurer, paid for the surgery. Waters returned to work, but continued to experience pain in various parts of her body and worked in several lighter-duty jobs that did not involve the same repetitive actions as her “touch up” job. Banks’ clinical notes from January 26,2010, again identify “bilateral carpal tunnel syndrome” and state that “[h]er left hand has carpal tunnel and work is trying to have her perform duties with her left hand.” He writes that “she is having severe pain to bilateral hands and shoulders and do not feel that she would be able to perform any type of activity with her hands. My recommendation at this point is for formal aggressive occupational therapy for her hands.” He also recommended on that date, “limited use of right arm” and “limited use of left arm.” Waters last went to work on November 4, 2010. Waters had carpal tunnel release surgery on her left hand on December 22, 2010.

In June 2011, about one-and-a-half years after Waters’ October 2009 injury, Dr. Banks signed a statement about that injury date, saying that he did

not believe that [Waters’] conditions with respect to her left upper extremity, legs, or shoulder are related to her work activities. Only her right wrist injury is a work-related injury, and her other problems are not related to the right wrist injury. Ms. Waters’ continued inability to work is due to problems other than her right wrist.

After Waters made workers’ compensation claims for the October 23, 2009, and November 4, 2010, injuries, the ALJ awarded benefits for Waters’ left carpal tunnel condition, reimbursement of medical expenses, and attorney fees representing 25 percent of income benefits related to the October 23, 2009, injury only. The ALJ denied her request for benefits related to the November 4, 2010, injury.

PCC Airfoils appealed to the Board’s appellate division, which fully adopted the ALJ’s decision. PCC Airfoils then appealed to the Superior Court of Coffee County. The superior court affirmed the appellate division’s award of benefits and medical expenses for Waters’ left carpal tunnel condition, which PCC Airfoils has not appealed. The trial court also reversed the award of attorney fees. Waters filed this appeal.

OCGA § 34-9-108 (b) (1) provides that “[u]pon a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the administrative law judge or the board may assess the adverse attorney’s fee against the offending party.” (Emphasis supplied.)

Whether an employer/insurer has defended against a claim without reasonable grounds presents an issue of fact for determination by the Board, and if there is any evidence to support the award, the superior court and this Court must affirm. But the ALJ may not award attorney fees where the matter is closely contested on reasonable grounds.

(Footnotes omitted.) Printpack, Inc. v. Crocker, 260 Ga. App. 67, 72-73 (3) (b) (579 SE2d 225) (2003). In the case before us, the ALJ determined as a matter of fact that

[t]he fact that Dr. Banks discussed surgery of both wrists demonstrates that as early as the fall of 2009 the claimant was indeed experiencing painful symptoms of carpal tunnel syndrome in both wrists. The question in that time period was not whether each wrist was in need of surgery, but rather whether both would be done at once. Her job duties as a touch-up finisher were to hold an air gun with the right hand and squeeze the lever while holding the engine part being finished in the left hand. The job was not a production task, though the duties were repetitive. The claimant worked at this same job for many years. Although Dr. Banks did write a note stating that only her right hand problem was caused by her job, I find that this opinion is not consistent with his prior notes. This last opinion note was dated in June of 2011 and also addressed the other conditions of her legs and shoulder, and I conclude that the opinion was not artfully worded and therefore vague and ambiguous. I find that the claimant’s regular job duties were repetitive and caused her left carpal tunnel syndrome which became disabling.

(Emphasis supplied.)

Banks’ notes were indeed inconsistent. He found that repetitive duties were required of the left hand, albeit not significant ones; he diagnosed bilateral carpal tunnel syndrome; and he recommended surgery on both wrists, noting that this was a “Workers compensation issue” as early as November 23,2009. However, in clinical notes dated between six and thirteen months after the injury date — April 6, 2010, July 22,2010, and November 30, 2010 — Banks states (without any explanation or justification) that the left-hand injury “was not considered [a] worker’s compensation injury[,]” that it “has not been accepted by Worker’s Comp to date[,]” and that “So far it has not been a Worker’s Compensation injury [,]” though his first statement that he does not believe the injury is work-related was rendered some eighteen months after the injury, in June 2011. On November 10, 2010, more than a year after the injury date, another physician, Dr. Conrad Harper, completed disability paperwork related to Waters’ problems with her left hand. He found that the condition commenced on October 15, 2009, and reported that the injury did not arise from her employment.

Put more simply, approximately eighteen months elapsed from the time that Banks identified Waters’ bilateral carpal tunnel as a “Workers’ compensation issue” in November 2009 and his June 2011 letter stating that he did not believe the problems with Waters’ left upper extremity were work-related. The WC-1 for Waters’ October 2009 injury shows that she injured both hands, noting that “Employee claims pain is from using die grinder; pain in hands, rt shoulder and low back.” (Emphasis supplied.) However, we see nothing in the record indicating that the employer controverted the claim related to the October 2009 injury as it relates to the left hand.

In some other cases, we have found that an employer’s defense against a claim was reasonable where there was conflicting information. However, those cases are distinguishable because the ALJ in the instant action did not “completely ignore [ ] the evidence supporting [the employer’s] defense.”Pet, Inc. v. Ward, 219 Ga. App. 525, 526 (466 SE2d 46) (1995) (reversing superior court’s affirmance of Board’s finding of unreasonableness where employer had consistently contested work-related nature of claim, ALJ ignored evidence supporting employer’s defense, and treating physician opined that claimant could return to light-duty work). Nor did the ALJ in the instant case ignore or fail to consider the conflicting medical evidence, or fail to consider the evidence as a whole. Autry v. Mayor & Aldermen of the City of Savannah, 222 Ga. App. 691, 692 (475 SE2d 702) (1996) (affirming superior court’s reversal of Board’s assessment of attorney fees where the Board did not consider the “whole of the evidence” and overlooked two of the three bases upon which treatment was contested) and Brigmond v. Springhill Homes of Ga., 180 Ga. App. 875, 876 (350 SE2d 846) (1986) (affirming trial court’s reversal of Board’s attorney fee award where there was conflicting medical evidence and record contained “no evidence upon which to base a finding of unreasonableness with respect to [appellees’] defense”) (citation omitted).

The ALJ’s opinion makes clear that she weighed conflicting evidence related to the physician’s initial diagnosis and clinical notes that the injury was a “Workers’ compensation issue” against his later statement that the injury was not work-related. In doing so, the ALJ made a credibility determination about those conflicting notes and about the wording of Banks’ June 2011 letter.

It is well settled that the Board is authorized to assess witness credibility and weigh conflicting evidence. Master Craft Flooring v. Dunham, 308 Ga. App. 430, 433-434 (708 SE2d 36) (2011). “In contrast, neither the superior court nor this Court has any authority to substitute itself as a factfinding body in lieu of the Board.” (Punctuation and footnote omitted.) Id. at 434. “When reviewing a workers’ compensation award, we construe the evidence in a light most favorable to the party prevailing before the [Board’s] appellate division and will uphold the Division’s factual findings if there is any evidence to support them.” (Footnote omitted; emphasis supplied.) L & S Constr. v. Lopez, 290 Ga. App. 611, 611 (660 SE2d 1) (2007).

In a case analogous to the instant action, St. Joseph’s Hosp. v. Cope, 225 Ga. App. 781 (484 SE2d 727) (1997), the claimant had been treated for carpal tunnel syndrome for several years absent a notice to controvert, before her treating physician “changed his mind[,]” stating that “ ‘after my review of this patient’s history, I don’t feel like I made the correct assessment that a right carpal tunnel syndrome was related to this [work] injury.’ ” Id. at 781-782. In St. Joseph’s Hosp., the Board’s appellate division found that the employer/self-insurer at least in part unreasonably defended the claim because the physician “treated the employee for a period of approximately two and one half years without ever contending that the right upper extremity problems were not related to the original injury.” Id. at 783. The appellate division determined, as did the ALJ in the instant case, that the physician’s later opinion was “inconsistent with his treatment and opinions during his term of care of the employee. . . . [The doctor’s] previous reports and letters are more persuasive than his deposition testimony.” (Punctuation omitted.) Id. at 783. Noting that there was no timely filing of a notice to controvert, this Court determined the employer’s defense was not reasonable, and attorney fees were merited. Id. at 784 (3). See also Nu Skin Intl. v. Baxter, 211 Ga. App. 32, 33 (438 SE2d 130) (1993) (“When an employer controverts a claim, it informs the employee that in its view the injury is not compensable”) (citation omitted).

In the instant case, PCC Airfoils apparently did not controvert the claim; the physician initially determined that Waters needed carpal tunnel surgery on both hands and that this was a “Workers’ compensation issue”; about six months passed before the physician initially indicated, without attributing his statement to any source, that workers’ compensation might not cover the injury; and eighteen months passed before the physician opined that the injury was not work-related. Within the context of the narrow legal framework at issue here, see Master Craft Flooring, supra at 435, and given the uncontested nature of Waters’ injury in the initial months, there was some evidence to support the ALJ’s determination that the employer’s defense was unreasonable as per OCGA § 34-9-108 (b) (l)’s mandate that fees may be awarded if proceedings have been defended even “in part without reasonable grounds[.]” (Emphasis supplied.) See also Printpack, supra at 72-73 (3) (b) (award must be affirmed if supported by any evidence).

Judgment reversed.

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

On Motion for Reconsideration.

On motion for reconsideration, PCC Airfoils contends that we overlooked or ignored material evidence in the record. Specifically, PCC Airfoils claims that we ignored two WC-3 notices to controvert Waters’ claim. PCC Airfoils claims that these notices were dated January 22, and September 22, 2010, approximately three to eleven months after the relevant injury date of October 23, 2009. PCC Airfoils argues that because it controverted the claim, we erred in relying on St. Joseph’s Hosp. v. Cope, 225 Ga. App. 781, 784 (3) (484 SE2d 727) (1997) (finding that employer’s defense of attorney fee claim was unreasonable where there was no timely filing of a notice to controvert). Despite the fact that “[i]t is not the function of this Court to cull the record on behalf of a party in search of instances of error,” Cronin v. Homesales, Inc., 296 Ga. App. 293, 294 (675 SE2d 35) (2009) (punctuation and footnote omitted), a diligent search of the record performed before our opinion was issued and again after this motion for reconsideration was filed did not reveal the WC-3 notices. Further, the Board’s index to its own record does not list these notices, nor did PCC Airfoils provide record citations to these documents in its motion for reconsideration or its appellate brief. PCC Airfoils has failed to carry its burden of proving error by the record. Id.

PCC Airfoils also argues that we deviated from our prior decisions dealing with conflicting information from parties or physicians in upholding the Board’s finding that PCC Airfoils’ defense of the claim was unreasonable. PCC Airfoils claims that the record shows no work restrictions on Waters’ left hand. However, the record contains at least three physicians’ reports requiring “limited use,” “limited duty,” or “no repetitive work” and either identifying the problem as bilateral carpal tunnel syndrome or left-hand pain. As we noted in our opinion, OCGA § 34-9-108 (b) (1) provides that if proceedings have been defended even “in part without reasonable grounds, the administrative law judge or the board may assess the adverse attorney’s fee against the offending party.” (Emphasis supplied.) Further, “if there is any evidence to support the award, the superior court and this Court must affirm.” (Footnote omitted.) Printpack, Inc. v. Crocker, 260 Ga. App. 67, 72 (3) (b) (579 SE2d 225) (2003).

Decided June 26, 2014 —

Reconsideration denied July 28, 2014 —

Dewey N. Hayes, Jr., for appellant.

Gardner, Willis, Sweat & Handelman, Todd S. Handelman, for appellees.

Laurence L. Christensen, Closson, Bass & Tomberlin, Luke E. Closson, amici curiae.

Accordingly, we find no merit in PCC Airfoils’ arguments.

Motion for reconsideration denied.

       This Code section was amended after the date of the Board’s decision, but the language at issue in this case did not change. Ga. L. 2011, p. 99, § 49, effective January 1, 2013.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A0103.
    CURRY v. MILLER.
    (763 SE2d 489)
   Branch, Judge.

Wiley Curry sued Cheryl Lynn Miller in DeKalb County Superior Court, asserting claims for breach of contract and quantum meruit. The case proceeded to trial, and at the close of all evidence Miller moved for a directed verdict. The trial court granted that motion and entered judgment in favor of Miller. Curry then filed a pro se pleading captioned “Motion to Amend Findings of Fact and Judgment or, In the Alternative, for a New Trial.” The trial court denied that motion, and Curry then filed this pro se appeal.

In his appellate brief, Curry asserts that the trial court erred in granting Miller’s motion for a directed verdict because there was evidence that would have allowed a jury to find in favor of Curry and because in granting the directed verdict the trial court invaded the province of the jury by deciding questions of fact. Curry further asserts that the trial court erred in refusing to admit certain evidence Curry attempted to proffer at trial. Based on the record before us, we find no error and affirm.

The appellate record contains no trial transcript, and this omission is the apparent result of Curry’s failure to comply with OCGA § 5-6-37, which requires an appellant to specify in his notice of appeal “a designation of those portions of the record to be omitted from the record on appeal” as well as “whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal.” Here, Curry filed an original and an amended notice of appeal. In each of these notices, Curry designated for omission all parts of the record that predated the entry of the trial court’s consolidated pretrial order “unless the same is relevant to certain parts/documents appealed —” Curry also designated specific items for inclusion in the record, including “all transcripts of evidence and proceedings that [are] not omitted and that [are] relevant to [Curry’s] appeal.” Curry did not include in either notice of appeal an unequivocal statement that a trial transcript should or should not be included in the record. Rather, he requested that the clerk transmit those portions of any transcript (not just the trial transcript) that might be relevant to Curry’s appeal. As Curry failed to specify that a trial transcript was to be included in the appellate record, none was transmitted to this Court.

Georgia’s appellate courts have made clear that where the record is incomplete as the result of an appellant’s failure to comply with the requirements of OCGA § 5-6-37, the order of the trial court will be affirmed. See Yetman v. Walsh, 282 Ga. App. 499, 500 (1) (639 SE2d 491) (2006) (“ ‘[t]he specification that “nothing” is to be omitted from the record would not infer that the transcript is to be included, since the appellant is required to state whether the transcript will be filed, in addition to designating any portion of the record to be omitted’ ”), quoting Steadham v. State of Ga., 224 Ga. 78, 80 (1) (159 SE2d 397) (1968); McCormick v. State, 277 Ga. App. 473 (627 SE2d 106) (2006) (appellant’s failure “to specify any transcript of the evidence to be included in the record ... failed to meet the burden cast upon him by law” and required this Court to affirm the trial court); Tempo Carpet Co. v. Collectible Classic Cars of Ga., 166 Ga. App. 564 (305 SE2d 26) (1983). An affirmance is required under such circumstances because on appeal the burden is on the appellant, as the party alleging error, to show affirmatively from the record that such error occurred. Farmer v. Branch Banking and Trust Co., 312 Ga. App. 519, 520 (718 SE2d 867) (2011). See also Cox v. Bank of America, 321 Ga. App. 806, 807 (2) (742 SE2d 147) (2013) (“[w]e will not presume the trial court committed error where that fact does not affirmatively appear in the record”) (citation and punctuation omitted). When the appellant fails to meet that burden, we have no choice but to assume that the judgment complained of is correct and to therefore affirm the same. Farmer, 312 Ga. App. at 520. Given the absence of a trial transcript, we cannot review the evidence presented at trial to determine whether the trial court erred in granting a directed verdict in favor of Miller. Nor can we review the trial court’s evidentiary rulings for possible error. Rather, “we must presume that the trial court’s rulings [on these issues] were correct and affirm” the order of the trial court denying Curry’s motion for a new trial. Blazi v. Rich, 306 Ga. App. 529, 531 (2) (702 SE2d 768) (2010) (citation omitted). See also Austell Healthcare v. Scott, 308 Ga. App. 393, 395 (1) (707 SE2d 599) (2011) (when the alleged error “is shown only in the appellant’s brief and not by the record, we must assume that the trial court’s rulings were correct”) (citation and punctuation omitted).

Decided June 10, 2014 —

Reconsideration denied July 29, 2014 —

Wiley Curry, pro se.

David L. G. King, Jr., for appellee.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       Given that the clerk of the trial court did not have the benefit of Curry’s appellate brief, it obviously had no way of determining whether any portions of any transcript might be relevant to Curry’s appeal. More importantly, however, it is not the job of the trial court clerk to review transcripts and determine their relevancy to a particular appeal; that is the job of the appellant.


author: Miller, Judge.

text:
    A14A0131.
    BAC HOME LOANS SERVICING, L.P. v. WEDEREIT.
    (759 SE2d 867)
   Miller, Judge.

Brian Wedereit filed suit against BAC Home Loans Servicing, L.P. f/k/a Countrywide Home Loans Servicing, L.P. and Bank of America, N.A. (“BAC”) for breach of contract and wrongful foreclosure after BAC foreclosed on his home in Grovetown. BAC appeals from the trial court’s partial grant of summary judgment to Wedereit on his claim for breach of contract based on BAC’s failure to give notice prior to accelerating the loan and its denial of BAC’s motion for summary judgment on Wedereit’s claims for wrongful foreclosure, equitable relief, punitive damages and attorney fees, contending that (1) the trial court erred in sua sponte granting partial summary judgment to Wedereit; (2) the trial court erred in finding, as a matter of law, that there was no notice of the acceleration of the loan; and (3) the trial court erred in denying BAC summary judgment on Wedereit’s claims for wrongful foreclosure, equitable relief, punitive damages and attorney fees. For the reasons that follow, we affirm the trial court’s ruling.

On appeal from a grant or denial of summary judgment, we conduct a de novo review of the law and evidence. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998). In applying this standard of review, we view the evidence in the light most favorable to the nonmovant to determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Id.

So viewed, the evidence shows that on December 19, 2006, Wedereit purchased property located at 2011 Sylvan Lake Drive in Grovetown. Wedereit executed a note in the amount of $ 143,000 (“the Note”) in favor of SurePoint Lending, as well as a security deed (“the Deed”), pledging the property as collateral for the Note. Beginning May 2007, Wedereit was late in making his monthly mortgage payments, and starting in 2008, he began missing monthly payments. On January 5, 2009, the Note and Deed were transferred and assigned to Countrywide Home Loans Servicing, later renamed BAC. In May 2010, BAC referred the loan to a foreclosure firm, which sent Wedereit two letters giving notice that the loan was in default, the entire amount of the loan was due, and BAC intended to foreclose. On July 6, 2010, BAC purchased the property at a non-judicial foreclosure sale.

Wedereit filed suit against BAC for wrongful foreclosure, based on allegations that BAC did not own the note and had failed to give proper notice of the foreclosure sale under OCGA § 44-14-162.2, and breach of contract, based on BAC’s failure to modify the terms of the mortgage under the federal Home Affordable Modification Program and failure to give pre-acceleration notice as required by the Deed. Wedereit sought damages, punitive damages, injunctive relief and attorney fees. As noted, the trial court sua sponte partially granted summary judgment to Wedereit on his claim for breach of contract based on BAC’s failure to give notice prior to accelerating the loans, granted Wedereit leave to amend to state a claim for wrongful foreclosure based on the lack of pre-acceleration notice, and denied BAC’s motion for summary judgment on Wedereit’s claims for wrongful foreclosure, equitable relief, punitive damages and attorney fees. The trial court also partially granted summary judgment to BAC on Wedereit’s claim for wrongful foreclosure based on BAC’s ownership of the note and failure to give notice under the foreclosure statute, OCGA § 44-14-162.2, and on Wedereit’s claim for breach of contract for failing to modify the loan. Wedereit does not appeal these rulings.

A dispossessory action was filed against Wedereit, but that action has been stayed pending the resolution of Wedereit’s claims in this case. Wedereit is making payments on the property into the registry of the magistrate court as part of the dispossessory action.

1. BAC contends that the trial court erred in sua sponte granting partial summary judgment to Wedereit on the issue of preacceleration notice because Wedereit never raised the acceleration issue and therefore BAC had no opportunity to respond to this claim. We discern no error and therefore disagree.

The trial court has authority to sua sponte grant summary judgment and can grant summary judgment to the nonmoving party where the issues are the same as those involved in the movant’s motion. Forsyth County v. Waterscape Svcs., LLC, 303 Ga. App. 623, 629 (1) (694 SE2d 102) (2010). Such sua sponte grant of summary judgment, however,

must be proper in all other respects. This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.

(Footnote omitted.) Tidwell v. Tidwell, 251 Ga. App. 863, 864 (554 SE2d 822) (2001).

Paragraph 22 of the Deed required BAC to give notice to Wedereit of the default, as well as the action required to cure the default, and give Wedereit at least 30 days to cure the default prior to accelerating the loan. Count II of Wedereit’s Amended Complaint asserts breach of contract based on BAC’s failure to comply with the requirements of paragraph 22 of the Deed. In its motion for summary judgment, BAC stated:

In Count II of the Complaint, Plaintiff asserts a claim for breach of contract, this time defining the contract at issue as the Security Deed itself. Plaintiff alleges that Defendants, in initiating and completing the foreclosure, failed to comply with Paragraph 22 of the Security Deed — a provision that specifies the requirements for giving notice to the Borrower prior to the Lender’s acceleration of the debt as the result of the Borrower’s breach [.]

BAC alleged in its statement of material facts in support of its motion for summary judgment that it advised Wedereit in June 2009 that any partial monthly payments would not be accepted, but BAC’s accompanying affidavit made no mention of pre-acceleration notice. Moreover, in discovery, Wedereit requested “all notices” from BAC to Wedereit regarding the “right to cure default pursuant to paragraph 22 of the Security Deed.” BAC objected to this request as overly broad and unduly burdensome, but indicated that it would nonetheless provide to Wedereit’s counsel any responsive documents.

At the hearing on BAC’s motion for summary judgment, BAC argued ■— but presented no evidence — that in June 2009 Wedereit was given notice that the loan was in default and was being accelerated. At the same hearing, BAC argued that Wedereit alleged that BAC had breached the Deed by not giving proper notice.

As shown above, Wedereit clearly raised the issue of lack of notice of acceleration of the loan in his complaint. In moving for summary judgment, BAC responded to those allegations, although it failed to present any evidence on the issue, despite ample opportunity to do so. Thus, BAC was not deprived of the opportunity to be heard. See Builders Mart of America, Inc. v. Gilbert, 257 Ga. App. 763, 766 (2) (572 SE2d 88) (2002) (no error in sua sponte granting summary judgment where party had ample opportunity to respond to claim and did so).

2. BAC also contends that the record establishes that it met the pre-acceleration notice requirements in the Deed because the letters sent in May 2010 by the foreclosure firm allowed Wedereit a period of over 30 days before the sale on July 6 to cure the default, and Wedereit made no attempt to cure his default. We disagree.

“The construction of a deed presents a question of law which this Court reviews de novo.” (Footnote omitted.) Second Refuge Church of Our Lord Jesus Christ, Inc. v. Lollar, 282 Ga. 721, 724 (2) (653 SE2d 462) (2007).

Here, paragraph 22 of the Deed required BAC to give Wedereit notice specifying:

(a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any defense of Borrower to acceleration and sale.

On May 28, 2010, the foreclosure firm sent a letter to Wedereit notifying him that the loan was in default (“the first letter”). The first letter advised Wedereit that the foreclosure firm had been retained to collect the debt, Wedereit owed $166,629.10, foreclosure proceedings against the property were possible, and Wedereit could dispute the debt. On the same day, the foreclosure firm sent a second letter to Wedereit (“the second letter”), notifying him that a failure to comply with the terms of the loan had created a default, the entire amount of the outstanding balance of the loan was due immediately, partial payment would not result in reinstatement or deceleration of the loan, and the property was to be sold at a non-judicial foreclosure sale on July 6, 2010. The second letter also included a copy of the published Notice of Sale.

The first and second letters gave Wedereit notice that he was in default, but the letters advised Wedereit that he owed the full accelerated amount of the loan, $166,629.10. Neither letter gave Wedereit notice of the action required to cure the default, the date by which to cure, that failure to cure would result in acceleration, or that Wedereit had a right to reinstate after acceleration. Accordingly, the first and second letters did not meet the notice requirements of paragraph 22 of the Deed. Compare Austin v. Bank of America, N.A., 293 Ga. 42, 45-46 (1) (743 SE2d 399) (2013) (lender gave notice of default, lender’s right to accelerate, and last day to cure).

BAC relies on Salahat v. Fed. Deposit Ins. Corp., 298 Ga. App. 624 (680 SE2d 638) (2009) for the proposition that a premature demand for accelerated payment can constitute sufficient notice if the debtor is given adequate time to cure the default and fails to do so. In Salahat, the relevant provision of the note required the lender to give notice that the debtor was in default before accelerating the loan, but did not require any further notice prior to acceleration, and did not require the notice of default to include a demand for payment or spell out the debtor’s right to cure within ten days. Id. at 625-626, 628. Once the lender gave notice of the default, and the debtor did not attempt to cure the default, the lender was entitled to accelerate the loan at the end of the ten-day grace period. Id. at 628.

Here, the Deed required BAC to send a notice that spelled out: the actions required to cure the default and the debtor’s right to cure within 30 days. Only, if “the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by the Security Instrument without further demand[.]” Neither the first nor second letter gave Wedereit 30 days to cure the default. Rather, both letters required Wedereit to make full payment on the loan, which was not permitted under the Deed until after he was first given an opportunity to cure the default. Zions First Nat. Bank v. Macke, 316 Ga. App. 744, 753 (4) (a) (730 SE2d 462) (2012) (debt acceleration premature without a curing period).

Since the record shows that BAC failed to give Wedereit proper notice prior to accelerating the loan, we hold that the trial court was correct in granting summary judgment to Wedereit on his claim for breach of contract. In so holding, we note that to prevail on his claim for breach of contract, Wedereit still has to show damages resulting from BAC’s failure to give pre-acceleration notice. Canton Plaza, Inc. v. Regions Bank, Inc., 315 Ga. App. 303, 306 (1) (732 SE2d 449) (2012) (the elements for a breach of contract claim are breach and resulting damages to the party who has the right to complain about the contract being broken).

3. BAC contends that the trial court erred in denying its motion for summary judgment on Wedereit’s claims for wrongful foreclosure, equitable relief, punitive damages and attorney fees. We disagree.

(a) Wrongful foreclosure

First, BAC contends that the trial court erred in denying its motion for summary judgment on Wedereit’s claims for wrongful foreclosure because there was no violation of Georgia’s foreclosure statute.

Under OCGA § 23-2-114, “[pjowers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised.” A claim for wrongful sale pursuant to OCGA § 23-2-114 can arise when a creditor forecloses on property without the legal right to do so, in violation of the terms of the deed. See Brown v. Freedman, 222 Ga. App. 213, 214 (1) (474 SE2d 73) (1996).

Where the deed requires the lender to provide an opportunity to cure before accelerating the loan and the lender fails to do so, the debt acceleration is premature. Zions First Nat. Bank, supra, 316 Ga. App. at 752-753 (4) (a). The right to accelerate is premised on a default, but if the default is cured, there is no right to accelerate. See id. Therefore, premature acceleration of a loan can give rise to a claim for wrongful foreclosure. See, e.g., id.

Where, as here, the lender forecloses on property without first giving the debtor an opportunity to cure the default prior to accelerating the loan, and the Deed requires prior notice, the bank is not entitled to summary judgment on the debtor’s wrongful foreclosure claim.

(b) Damages and equitable relief

BAC contends that Wedereit failed to establish damages or entitlement to equitable relief in his wrongful foreclosure claim because he failed to tender payment prior to the foreclosure sale. In order to prevail on a wrongful foreclosure claim, a debtor must establish duty, breach, causation, and damages. Calhoun First Nat. Bank v. Dickens, 264 Ga. 285, 286 (2) (443 SE2d 837) (1994). Where a foreclosing party breaches his statutory duty to exercise the power of sale fairly and in good faith, the debtor may either sue for damages or seek to set aside the foreclosure. Id. at 285-286 (1).

Here, while Wedereit admitted that he did not tender any payment to forestall the foreclosure sale in July 2010, the first and second letter gave Wedereit no opportunity to cure the default, and the second letter indicated that he was obligated to pay the full balance of the loan and that partial payment would not reinstate the loan. Accordingly, there remains a genuine issue of material fact as to whether BAC’s failure to provide proper pre-acceleration notice entitles Wedereit to damages or equitable relief.

(c) Attorney fees and punitive damages

Lastly, BAC contends that the trial court erred in denying its motion for summary judgment on Wedereit’s claims for attorney fees and punitive damages.

(i) Attorney fees are available “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense[.]” OCGA § 13-6-11. “Questions concerning bad faith under this statute are generally for the jury to decide, and the trial court may grant judgment as a matter of law on such issues only in the rare case where there is absolutely no evidence to support the award of expenses of litigation.” (Citation and punctuation omitted.) Layer v. Clipper Petroleum, Inc., 319 Ga. App. 410, 420 (7) (735 SE2d 65) (2012). Summary judgment on Wedereit’s claims for attorney fees would be premature since his claims for breach of contract and wrongful foreclosure remain pending. Thus, the trial court properly denied summary judgment to BAC on Wedereit’s claims for attorney fees.

(ii) Punitive damages are awardable “solely to punish, penalize, or deter a defendant.” OCGA § 51-12-5.1 (c). To support an award of punitive damages, there must be clear and convincing evidence that the defendant’s actions showed “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). Punitive damages are available in wrongful foreclosure cases. See, e.g., Curl v. First Fed. Savings and Loan Assn. of Gainesville, 243 Ga. 842 (257 SE2d 264) (1979). Construing the evidence in the light most favorable to Wedereit, there is a genuine issue of fact as to whether BAC’s conduct demonstrated an entire want of care such that it raised the presumption of conscious indifference to the consequences. See Fowler v. Smith, 237 Ga. App 841, 848 (2) (516 SE2d 845) (1999). Summary judgment on the issue of punitive damages is likewise premature while Wedereit’s wrongful foreclosure claim is pending.

Decided July 8, 2014 —

Reconsideration denied July 29, 2014 —

Dickenson Gilroy, Monica K. Gilroy, Tania T. Trumble, Emily H. Cobb, for appellant.

Nicholson Revell, Sam G. Nicholson, for appellee.

In sum, we affirm the trial court’s partial grant of summary judgment to Wedereit because the record shows that BAC failed to give proper pre-acceleration notice as required by the Deed and we agree that the remaining issues related to Wedereit’s claims for wrongful foreclosure and breach of contract should go to the jury.

Judgment affirmed.

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

       BAC also contends that the trial court improperly granted summary judgment to Wedereit on Count II of Wedereit’s amended complaint (failure to give pre-acceleration notice as required in the Deed) after declining to consider the amended complaint as evidence. In its summary judgment order, the trial court indicated that it would not consider the unverified facts alleged in the amended complaint as evidence. Here, the trial court did not need to rely on any facts alleged in the amended complaint since the Deed was already part of the record.


text:
    A14A0245.
    THOMPSON v. LOVETT.
    (760 SE2d 246)
   Branch, Judge.

Russell Eric Thompson appeals entry of summary judgment against him in a suit on a note. We hold that the trial court erred in concluding that the Statute of Frauds and the statutory requirement of unanimous action by personal representatives of an estate bar Thompson’s defenses, and we therefore reverse.

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).

Construed in favor of Thompson, the record shows that, on February 15, 2003, Thompson purchased his father’s residential property in Loganville. The transaction is evidenced by a warranty deed, a $250,000 promissory note, and a related deed to secure debt/security agreement. The promissory note provides that, beginning on March 15, 2003, Thompson would pay his father 107 monthly installments of interest in the amount of $833.33, followed by a balloon payment of $250,833.33 on February 15, 2012. Since the purchase, Thompson has resided at the property, maintained it, and paid the insurance and taxes. Thompson’s sister, Carrie Laann Thompson Lovett, owns and resides on the adjoining property along with her children.

Thompson’s father died on March 12, 2004. Pursuant to his will, Thompson and Lovett were named as co-executors, and they were each devised the remainder (i.e., all property other than personal effects and certain itemized property not relevant to this case) of their father’s estate “equally, share-and-share alike, in fee simple, per stirpes.” Shortly after their father’s death, according to Thompson, the parties entered into an oral agreement that Thompson described as follows:

Ms. Lovett and I agreed that instead of making monthly mortgage payments under the Promissory Note to my father’s Estate, for which we were co-executors, we would wait until Ms. Lovett’s children had grown up and moved out of her home, and then sell the Property____Ms. Lovett and I agreed that we would equally split the proceeds of the sale.

Lovett denies that she entered into this oral agreement.

On March 20,2012, eight years after the parties made the alleged oral agreement, Lovett, as executor of the estate and acting through counsel, sent a letter to her brother demanding that he pay to the estate the remaining balance due on the note, which amounted to $334,999.60. She also initiated proceedings to remove Thompson as co-executor, and he later resigned pursuant to a consent order. One year after the demand letter, Lovett, as executrix of her father’s estate, filed suit on the note on behalf of the estate and claimed that the debt due had increased to $349,165.95 plus $49,374.89 in attorney fees. In his answer, Thompson denied Lovett’s claims and raised several defenses. Lovett then moved for summary judgment, which, following a hearing, the trial court granted.

Thompson admits that but for the alleged oral agreement between the parties, he would be obligated to pay the balance on the note. He raises several arguments as to why the alleged oral agreement raises an issue of fact as to his liability under the note. Lovett counters that Thompson’s defenses are invalidated by the terms of the note itself and by the Statute of Frauds.

The one-page promissory note contains an acceleration clause which provides that if Thompson fails to pay any installment when due or fails to comply with any term of the deed to secure debt and security deed, the entire unpaid principal sum with all accrued interest shall become due and payable at the option of the note holder. The note then provides:

It is further agreed that failure of the Holder to exercise this right of accelerating the maturity of the debt, or indulgence granted from time to time, shall in no event be considered a waiver of such right of acceleration or estop the Holder from exercising such right.

The note also provides for interest and attorney fees if the note has to be accelerated.

The trial court concluded, in part, that because Georgia law requires that modifications of “[a]ny contract required to be in writing by the statute of frauds” must also be in writing, and because the alleged agreement purported to be an oral modification of such a contract, the factual issue raised regarding the alleged agreement was immaterial because any such agreement would be ineffectual. Thompson contends that the alleged oral agreement creates a genuine issue of material fact with respect to both the enforceability of the note and his defense of estoppel. Thompson claims that the trial court erred because the alleged agreement was a rescission, not a modification, andbecause exceptions to the Statute of Frauds are applicable in this case. We find that the trial court erred in concluding that the Statute of Frauds and the requirement of unanimous action by personal representatives of an estate undermine the materiality of this factual issue to this dispute.

1. Georgia’s Statute of Frauds requires that “[a]ny contract for sale of lands, or any interest in, or concerning lands” and “[a]ny agreement that is not to be performed within one year from the making thereof” be reduced to writing and signed if it is to be binding. OCGA § 13-5-30 (4), (5). Thus the original promissory note held by the parties’ father’s estate was required to be in writing. See, e.g., Sierra Assoc., Ltd. v. Continental Illinois Nat. Bank & Trust Co. of Chicago, 169 Ga. App. 784, 789 (2) (a) (315 SE2d 250) (1984) (because “alleged verbal contract [concerning extension or renewal of promissory note] was not to be performed within one year, it came within the Statute of Frauds”) (citations omitted). And generally, parol agreements to modify a contract required to be in writing by the Statute of Frauds are ineffective. See Brooks v. Gwinnett Community Bank, 311 Ga. App. 806, 807 (717 SE2d 647) (2011).

Nevertheless, “parties to a contract may rescind it by mutual agreement and rescission of a written contract need not be in writing.” Cornell Indus. v. Colonial Bank, 162 Ga. App. 822, 823 (1) (293 SE2d 370) (1982) (citation omitted); see WorksiteRx v. DrTango, 286 Ga. App. 284, 285 (648 SE2d 775) (2007). In WorksiteRx, this Court found that an affidavit filed by the defendant to a contract suit claiming that the parties had previously made an oral agreement to rescind their contract was sufficient to raise an issue of material fact precluding an award of summary judgment to the other party. Id.; see also C. Brown Trucking Co. v. Henderson, 305 Ga. App. 873, 874 (1) (700 SE2d 882) (2010) (reversing a grant of summary judgment where a party’s verified answer raised a factual issue as to whether the parties had orally rescinded the contract).

Similarly here, Thompson has averred that an oral agreement between him and his sister effectively rescinded the entire transaction under which he was purchasing the home, which is sufficient to create an issue of fact as to rescission. Construed in his favor, the alleged oral agreement unwinds the entire transaction between Thompson’s father to Thompson. The brother and sister allegedly agreed that Thompson could cease payments on the note and that Thompson would later sell the property and split the proceeds with his sister. The same result would have occurred if Thompson had deeded the property back to the estate at the time of the alleged oral agreement to rescind; that is, the estate would have owned the property and the brother and sister could then, acting as co-executors and the sole beneficiaries of the property, sell the house and split the proceeds.

Also, a party “may consent to rescission by the other party either impliedly or by conduct.” Nationwide Mut. Ins. Co. v. McCollum, 179 Ga. App. 500, 502 (1) (347 SE2d 231) (1986) (citation and punctuation omitted). In McCollum, this Court found that an insurance customer’s conduct in demanding and accepting the return of a previously tendered premium for certain coverage manifested an intent to rescind the contract for that coverage, even though there was no explicit agreement to rescind. Id. Here, Lovett’s failure to request repayment on the note or object in any manner to over eight years of known inaction by Thompson is consistent with Thompson’s claim of an agreement to rescind the original transaction. Lovett claims that the alleged agreement should be considered a modification and not a rescission, and that precedents involving rescissions therefore do not apply to take the alleged agreement out of the Statute of Frauds. But as shown above, construed in Thompson’s favor, the agreement was a rescission, and summary judgment is therefore precluded.

Thompson also argues that even if the agreement were seen as a modification, an exception to the Statute of Frauds applies. See OCGA § 13-5-31 (3) (Statute of Frauds inapplicable “[w]here there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance”). Because we find that the alleged oral agreement, if construed in favor of Thompson, is a rescission, we need not reach this argument.

For the above reasons, the trial court erred in finding, as one basis for summary judgment, that the agreement was a modification that had to be in writing in order to be enforced. A material issue of fact remains, therefore, as to whether the parties entered into an oral agreement to rescind the transaction.

2. In granting summary judgment, the trial court also held that “there is no evidence that the parties acted unanimously as Co-Executors to extinguish the debt, as required by law.” Georgia law allows heirs to make their own agreements regarding property devised under a will:

[Agreements among the heirs at law to distribute or divide property devised under a will, in lieu of that manner provided by the will, are valid and enforceable. Such agreements have as their consideration the termination of family controversies, and are upheld albeit perhaps resting on grounds which would not have been satisfactory if the transaction had occurred between mere strangers. They partake of the nature of family arrangements and are, in essence, solely contractual and governed by rules applicable to all contracts.

West v. Downer, 218 Ga. 235, 241 (5) (127 SE2d 359) (1962) (citations and punctuation omitted); see also OCGA § 53-7-45 (“Personal representatives are authorized to compromise, adjust, arbitrate, assign, sue or defend, abandon, or otherwise deal with or settle debts or claims in favor of or against the estate.”). Georgia law also provides, however, that if an estate has “more than one personal representative,” “unless the will provides otherwise[,] [t]he personal representatives must act by their unanimous action[.]” OCGA § 53-7-5 (a) (1).

The trial court correctly stated the law, but it incorrectly found that the alleged agreement, if it happened, did not constitute “unanimous” action by Thompson and Lovett in compromising a debt in favor of their father’s estate. At the time of the alleged oral agreement, Thompson and Lovett were the sole co-executors of their father’s estate and the sole beneficiaries of the remainder of the estate, including the promissory note; they were also the only parties to the alleged oral agreement. Contrary to the trial court’s statement that “there is no evidence that the parties acted unanimously” in agreeing to cancel Thompson’s debt in favor of an alternate arrangement, the facts construed in Thompson’s favor show a unanimous decision by the parties to do just that. Thus, just as the Statute of Frauds does not preclude the possibility of judgment in Thompson’s favor, so the requirement of unanimous action cannot be invoked to justify summary judgment in favor of Lovett, as long as the factual issue concerning the alleged oral agreement remains unresolved.

3. Thompson also contends that the alleged oral agreement creates a genuine issue of material fact with respect to the existence of estoppel. Because we find that the trial court erred in failing to address Thompson’s affirmative defense of estoppel, and that there are genuine issues of material fact regarding whether estoppel exists in this case, we agree.

In order to make out a claim or defense of estoppel, the party claiming estoppel “must show that (1) the promisor made certain promises; (2) the promisor should have expected that the party would rely on the promises; and (3) the party relied on those promises to its detriment.” F & W Agriservices v. UAP/Ga. Ag. Chem., 250 Ga. App. 238, 241 (2) (549 SE2d 746) (2001) (footnote omitted) (citing OCGA § 13-3-44 (a)). See also 20/20 Vision Center v. Scott Hudgens Companies, 256 Ga. 129, 135 (7), n. 7 (345 SE2d 330) (1986) (estoppel can be applied even when facts supporting estoppel are insufficient to constitute partial performance of a contract thereby taking the case out of the Statute of Frauds). In F & W Agriservices, this Court determined that the trial court had erred in finding that the appellant’s estoppel defense was “without merit as a matter of law.” Id. at 242 (2) (punctuation omitted). The Court instead determined that factual issues remained with respect to whether the appellee had in fact made the alleged promise, whether the promisor should have expected reliance on that promise, and whether the appellant had in fact reasonably relied on that promise. Id. Similarly, on the record before us, factual issues remain as to whether Lovett represented to Thompson that he could continue to reside on the property without payment and without fear of enforcement of the note, and as to whether Thompson reasonably relied on that representation to his detriment (i.e., by exposing himself to additional liability, such as attorney fees associated with Lovett’s attempt to collect on the note).

Decided July 15, 2014 —

Reconsideration denied July 29, 2014.

Stuart J. Oberman, Michelle L. Wein, for appellant.

Jones & Duff, Don M. Jones, for appellee.

Lovett argues that the terms of the note preclude application of estoppel as a defense. But the only applicable term of the note is quoted above, and it only provides that any failure by Lovett to exercise her right to accelerate the note or any indulgence granted by her shall not constitute “a waiver of such right of acceleration or estop the Holder from exercising such right.” Here, Thompson is not claiming that Lovett failed to exercise her right to accelerate the note or that she granted him an indulgence; he claims that she agreed to rescind his obligation under the note. The quoted term does not prohibit rescission of the note, and it is therefore inapplicable to the facts as construed in Thompson’s favor.

4. Finally, because we have found that the trial court erred by granting summary judgment, we need not address Thompson’s remaining assertions that Lovett failed to pierce or address Thompson’s affirmative defenses.

For the reasons set forth above, we reverse the trial court’s grant of summary judgment to Lovett and remand for further proceedings.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

       Sometime before his death, Thompson’s father told Thompson that he did not have to continue making payments under the note, and Thompson ceased making payments in August 2003. Neither party places any relevance on this event.

       “ ‘Personal representative’ means any administrator, administrator with the will annexed, county administrator, or executor.” OCGA § 53-1-2 (12).


author: Boggs, Judge.

text:
    A14A0292.
    DAVIS et al. v. EFFINGHAM COUNTY BOARD OF COMMISSIONERS et al.
    (760 SE2d 9)
   Boggs, Judge.

Theron and Dana Davis brought this action against the Effing-ham County Board of Commissioners, Sheriff Jimmy McDuffie, Deputy Gary Provost (“the County defendants”), two private contractors, and one of their employees, for damages they allegedly suffered when Mr. Davis’ truck struck a pothole on a county-maintained road. The trial court granted summary judgment in favor of the County defendants, and the Davises appeal, asserting that the trial court erred in (1) granting summary judgment to the county, to the sheriff in his official capacity, and to the deputy in his individual capacity; (2) ruling that the deputy did not breach a ministerial duty; (3) ruling that the deputy’s actions were discretionary; and (4) ruling that a claim for continuing nuisance did not lie. For the reasons explained below, we affirm.

On appeal from the denial of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010); see OCGA § 9-11-56 (c).

A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The County defendants filed with their motion for summary judgment an affidavit from Deputy Provost. He asserted that on May 22, 2009, he responded to a call from an individual who reported that she had driven over a pothole on Chimney Road that caused damage to her car. The deputy inspected the road and found that “the only visible potholes were to the right of the white lines of the roadway and, thus, on the shoulder of the roadway and out of the flow of traffic.” Nevertheless, the deputy reported the potholes to dispatch and requested that a work order be placed with road maintenance “to fix any potholes along Chimney Road as soon as possible.”

In an affidavit filed the day before the hearing on the County defendants’ motion for summary judgment, Mr. Davis testified that on May 25, 2009, he was driving on Chimney Road when he struck a pothole that was covered by water on the roadway. He “was injured, immediately suffering pain.” He testified that the pothole “was located on the edge of the road but extended into the lane of Chimney Road.” He further testified that he drove regularly on Chimney Road, and that there were “no other potholes” on Chimney Road at that time or “for at least a week before and after that day.”

On May 29, 2009, another deputy responded to a call at the Davises’ home. She testified that Mr. Davis reported he had hit a pothole on Chimney Road on May 25 “during an instance of flooding on the roadway.” She agreed that “on the night of the alleged incident, there was widespread flooding on the roadway.” After taking the report, she drove slowly down Chimney Road looking for the pothole, but “was unable to find any potholes along the roadway.”

The Effingham County Sheriff’s Department maintains written departmental standard operating procedures. These procedures give guidance to deputies in the case of road hazards:

18. Road Hazards
Deputies shall report any road hazards to the communications center and stand by with the hazard until assistance can be obtained to correct the problem so that citizens are not injured. The following are considered road hazards:
a. Damaged or malfunctioning traffic control device
b. Visually obscured intersections
c. Roadway defects
d. Lack of, damaged or missing roadway signs or safety devices
Deputies should not limit road hazards as just that listed above [sic], he/she should evaluate each situation independently.

After a hearing and supplemental briefs from the parties, the trial court held that the Davises’ personal injury claim stated no claim for nuisance, that their suit against the county and against the sheriff and deputy in their official capacities was barred by sovereign immunity, and, finally, that their negligence claim against the sheriff and deputy in their individual capacities was barred by official or derivative immunity. This appeal followed.

1. (a) A negligence claim against the state or its subdivisions, including counties, is barred unless waived by statute. OCGA § 36-1-4; Rutherford v. DeKalb County, 287 Ga. App. 366 (1) (651 SE2d 771) (2007). And “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.” (Citations and punctuation omitted.) Bulloch County School Dist. v. Ga. Dept. of Ed., 324 Ga. App. 691, 693 (1) (751 SE2d 495) (2013). Moreover, with respect to claims against the sheriff and deputy in their official capacities, such claims “are, in essence, claims against [the county] and [the sheriff and deputy] may raise any defense available to the county, including sovereign immunity.” (Citations omitted.) Gilbert v. Richardson, 264 Ga. 744, 746 (2), n. 4 (452 SE2d 476) (1994).

Normally, a county is not liable to suit for any cause of action unless made so by statute. This includes actions brought under a theory of negligence as well as actions brought under a theory of nuisance, unless, of course, the alleged nuisance amounts to a taking of private property for public purposes.

(Citations and punctuation omitted.) Early County v. Fincher, 184 Ga. App. 47, 49 (2) (360 SE2d 602) (1987). Here, the Davises allege a nuisance claim against the Board of Commissioners and the Sheriff in his official capacity.

A county may be liable to an owner in damages to property, either real or personal, through inverse condemnation by a nuisance, created, maintained, or worsened by such county. The measure of damages in such cases is the same as in condemnation cases. The reason sovereign immunity is not applicable when a nuisance amounts to a taking of property of one of its citizens for public purposes is that inverse condemnation is a form of eminent domain.

(Citations and punctuation omitted; emphasis supplied.) Howard v. Gourmet Concepts Intl., 242 Ga. App. 521, 524 (3) (529 SE2d 406) (2000). As the Davises have conceded, this exception is limited to property damage and does not extend to personal injuries. “Sovereign immunity bars any action for personal injury or wrongful death against a county arising from nuisance or inverse condemnation.” (Citations and punctuation omitted.) Rutherford v. DeKalb County, 287 Ga. App. 366, 369 (2) (651 SE2d 771) (2007).

(b) In considering property damage alleged to have been caused by a nuisance,

mere negligence is insufficient to constitute a nuisance that rises to an inverse condemnation. ... To be liable for a nuisance, a county must perform “a continuous or regularly repetitious act, or create a continuous or regularly repetitious condition” that caused the harm. A single act of negligence is insufficient.

(Citations and footnotes omitted.) Morris v. Douglas County Bd. of Health, 274 Ga. 898, 899 (1) (561 SE2d 393) (2002). Moreover,

[t]he whole idea of nuisance is that of either a continuous or regularly repetitious act or condition which causes the hurt, inconvenience or injury. A single isolated occurrence or act, which if regularly repeated would constitute a nuisance, is not a nuisance until it is regularly repeated. The injury complained of here is more in the nature of a tort or a trespass inflicting in one act a direct injury and damage (even though in effect one of more or less lasting duration)... as distinguished from the maintenance of a nuisance where the injury complained of is the result of a continuous or recurrent act or condition and is of an indirect character. Thus, [the] property was damaged by a single malfunction in the operation of the public works project and was not damaged by a nuisance arising from a public project created and maintained for a public purpose.

(Citations and punctuation omitted; emphasis in original.) Desprint Svcs. v. DeKalb County, 188 Ga. App. 218, 220 (2) (372 SE2d 488) (1988). And “[a]s a matter of law, the post-construction non-nuisance damage done to private property by a single malfunction in the operation of a public works project is not damage which has been done for a ‘public purpose.’ [Cit.]” Id. at 220 (3).

The Davises have alleged only that a pothole appeared in an existing roadway, without the direct intervention of any defendant, and at most within a few days. As a result, on a single occasion, Mr. Davis’ truck struck the pothole and was damaged in an unspecified manner. This is a “single isolated occurrence,” Desprint Svcs., supra, 188 Ga. App. at 220 (2), which does not amount to a nuisance or to inverse condemnation of Mr. Davis’ truck for a public purpose. The trial court did not err in granting summary judgment on the Davises’ claims of inverse condemnation and nuisance.

2. The Davises also complain that the trial court erred in granting summary judgment to Deputy Provost in his individual capacity on the basis of official immunity.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

(Citations and punctuation omitted.) Grammens v. Dollar, 287 Ga. 618, 619 (697 SE2d 775) (2010). And

[a] ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

(Citations omitted.) Id. “The determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis.” (Citation and punctuation omitted.) Vann v. Finley, 313 Ga. App. 153, 159 (1) (721 SE2d 156) (2011).

Here, the sheriff’s department standard operating procedures require that deputies employ their discretion in order to determine whether a “road hazard” exists. While the procedures enumerate examples of such “road hazards,” they add that deputies “should evaluate each situation independently.” This standard requires

a discretionary act, i.e., to exercise personal deliberation and judgment by examining the facts and reach a reasoned conclusion with regard to the applicability of the dictates of the written policy. Where the written policy requires the public official to exercise discretion in the implementation of the written policy, the policy does not require the performance of a ministerial duty.

Grammens, supra, 287 Ga. at 621 (written policy requiring eye protection when students use “explosive materials” required discretion because that term was not defined, requiring teacher to determine if policy applied).

Citing decisions in which the absence of “any procedures or instructions with regard to road maintenance or repair” precluded the establishment of a ministerial duty, the Davises appear to argue the reverse: that the mere existence of a written policy creates a ministerial duty. This is incorrect. Lack of proof of any standard — whether written or unwritten — obviously precludes establishment of a ministerial duty or its breach. Roper v. Greenway, 294 Ga. 112, 114-115 (751 SE2d 351) (2013). But even if a written policy is shown, it must provide “procedures or instructions ... so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.” (Citation and punctuation omitted.) Id. at 115, citing Effingham County v. Rhodes, 307 Ga. App. 504, 507 (3) (705 SE2d 856) (2010).

As in Grammens, here the written policy required the deputy to exercise his discretion in implementing the policy. In determining whether the pothole reported by the first driver constituted a “roadway defect” within the meaning of the official policy, the deputy inspected Chimney Road and located potholes outside the fog line, not in the lane of travel. Using his “personal deliberation and judgment,” he determined that they were not a “roadway defect,” and therefore not a “road hazard.” The shoulder area outside the fog line is not considered part of the “roadway.” See Payne v. State, 275 Ga. 181, 183 (2) (563 SE2d 844) (2002) (“roadway” defined as “ ‘that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder.’ ”).

Decided July 1, 2014 —

Reconsideration denied July 29, 2014 —

Jones, Boykin & Associates, Noble L. Boykin, Jr., for appellants.

Oliver Maner, Patrick T. O’Connor, Benjamin M. Perkins, Jacob D. Massee, Zipperer, Lorberbaum & Beauvais, Eric R. Gotwalt, for appellees.

The Davises attempt to distinguish Grammens by contending that the department procedures require specific actions whenever a “road defect” is encountered. But in order to make this argument, the Davises misstate the language of the document, repeatedly quoting it as “road defect” rather than “roadway defect,” in order to claim that there is “no differentiation” between a “road defect” in the lane of travel and a “road defect” outside the roadway. See Payne, supra. In addition, the Davises’ reply brief incorrectly claims that appellees did not interpose a causation defense below. But we do not reach that issue because of our holdings on sovereign and official immunity.

The trial court did not err in granting summary judgment in favor of Deputy Provost on the grounds of official immunity.

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.

       This individual did not testify by affidavit or otherwise. The Davises’ assertion that the driver “pointed out” the pothole to Deputy Provost is unsupported by the record.

       While the Davises assert that the same pothole Mr. Davis struck was observed by the deputy, the record does not support that assertion. The first driver reported a pothole “on Chimney Road”; the deputy testified that he inspected Chimney Road, which is approximately two miles long, and located several potholes on the shoulder of the road. The first driver did not testify, and there is no testimony in the record regarding the location of the pothole she encountered. Mr. Davis insists that the pothole struck by his vehicle was in the lane of travel, but points to no evidence that the deputy observed the pothole that he struck, or that it was present three days earlier.

       The trial court was incorrect in its observation that the Davises did not make a claim for property damage; although their complaint primarily alleged substantial and continuing personal injuries and related special damages, it also recites that Mr. Davis’ vehicle was damaged in an unspecified manner. But, as explained below, the court correctly concluded that no action for nuisance lies under the facts presented here.

       As the County defendants point out, the Davises do not enumerate as error a number of rulings by the trial court in its order. They do not contest the grant of summary judgment to the sheriff in his individual capacity or to the deputy in his official capacity, and Dana Davis concedes that she failed to provide ante litem notice to the county. They also acknowledge that the county is immune from personal injury claims sounding in nuisance.


author: Phipps, Chief Judge.

text:
    A14A0308, A14A0309.
    ANSELL v. ANSELL; and vice versa.
    (759 SE2d 916)
   Phipps, Chief Judge.

These appeals are related to a child custody dispute. In Case No. A14A0308, the father challenges that portion of a child custody order requiring him, over his objection, to cooperate with the mother in obtaining a passport for their minor child. The father also contends that the trial court erred by failing to award him attorney fees in his successful contempt action against the mother. In Case No. A14A0309, the mother filed a cross-appeal, challenging the trial court’s finding that she was in contempt of court.

For the reasons that follow, in Case No. A14A0308, we affirm the judgment of the trial court as to the denial of the father’s request for attorney fees, and in Case No. A14A0309, we affirm the judgment of the trial court as to the finding that the mother was in contempt of court. However, in Case No. A14A0308, we vacate the judgment insofar as it requires the father to execute documents consenting to the issuance of a passport for the minor child; as to that issue, we remand the case for the trial court to reconsider its grant of relief to the mother in accordance with certain federal regulations which require no action by the father.

The relevant facts of this case are that Seth and Anna Ansell divorced in 2007, and have one child, born in June 2004. In the divorce, the trial court awarded the parents “joint legal custody” of the child; the mother was awarded primary physical custody. In 2011, the father filed a “Motion for Contempt and Complaint for Modification of Custody”; he also sought attorney fees for bringing the contempt action. The mother answered and filed a counterclaim for contempt and for modification, seeking, among other things, an order limiting the child’s travel outside the United States until the child obtained a valid U. S. passport, because her old passport had expired.

After a hearing, the trial court entered an order in which it: (1) found the mother to be in contempt, which could be purged by payment of a fine; (2) denied the father’s claim for attorney fees; (3) increased the father’s visitation; and (4) required the father to cooperate with the mother in executing the necessary documents to obtain a passport for the child.

Case No. A14A0308

1. The father contends that the trial court erred in requiring him to cooperate with the mother in obtaining a passport for their minor child.

In her counterclaim, the mother pointed out that in a prior modification action, the trial court had ordered that the child’s passport be “in the possession of the parent with whom the child is physically present.” At the hearing, the mother informed the court that the child’s passport had expired, and that she sought to renew it so that the child could travel internationally, as she had in the past. The mother asked the trial court to order the father to comply with the passport application process, which required him to consent to the issuance of the passport. The father testified that he knew that the mother was from Russia, that the child had previously traveled to Russia, and that the child’s passport had expired. However, the father testified that he objected to renewing the child’s passport, and that he would not cooperate in renewing the child’s passport, stating that he “believe [d] the U. S. government gives both parents that discretion.”

Neither party presented to the court any legal authority either permitting or prohibiting the court from granting the mother’s request regarding the passport; and the trial court cited none in its order granting the mother’s request, providing: “The Father shall cooperate with the Mother in executing the necessary documents to obtain a U. S. passport for [the child]. The Father shall execute and return to the Mother the necessary forms, properly executed, within 10 days of receipt of the same.”

On appeal, the father correctly argues that because he has joint legal custody of the child, federal regulations governing the issuance of passports to minors require his consent to the issuance of the child’s passport, and, he asserts, “forced consent is not consent at all.” In supporting the trial court’s order, the mother points out that the federal regulations upon which the father relies, specifically 22 CFR § 51.28 (a) (3) (ii) (E), in fact, authorized the trial court to issue an order permitting the mother to obtain a passport for the minor child without the father’s written consent, and that “[d]uring the trial, neither party reviewed or discussed the federal regulation with the court. Had the parties reviewed the regulation prior to the issuance of an order, the court’s intent could have been carried out by expressly authorizing [the mother] to obtain a passport for the child without the consent of the [father].” Without citing any legal authority permitting the trial court to rule as it did, the mother asserts that the trial court’s decision to order the father to cooperate in obtaining a passport for the child was supported by the evidence, and that, therefore, the trial court did not abuse its discretion.

As pointed out by the mother, the parties did not discuss in the trial court the federal regulations they discuss on appeal. We have found no Georgia law expressly granting a trial court authority to require a parent to execute passport documents for a minor child, when that parent objects to giving consent. And we decline to answer the question whether Georgia law impliedly grants a trial court authority to do so when, as the parties correctly recognize in their appellate briefs, the issuance of a passport to a minor child is a matter governed by federal law;* *** and the record in this case does not reflect that the trial court considered federal regulations expressly recognizing a court order as a means by which a parent may obtain a passport for a minor child if the parent is unable to obtain a notarized written statement or affidavit of consent by the other joint custodial parent.

Accordingly, we vacate the trial court’s judgment insofar as it orders the father to execute documents necessary for the mother to obtain a passport for the child, and we remand the case for the trial court to reconsider its grant of relief to the mother in accordance with federal regulations which would require no action by the father.

2. The father contends that the trial court abused its discretion by failing to award him attorney fees upon finding the mother in contempt of court. He points out that this was the second time that the trial court found the mother in contempt of court for failing to follow its orders; and he argues that instead of permitting the mother to purge the contempt by paying a fine, the trial court should have ordered the mother to pay the attorney fees he incurred for bringing the contempt claim. The father also asserts that the trial court failed to make requisite findings of fact. We disagree.

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

In this case, the trial court’s order does not specify any statutory basis for its decision to deny attorney fees, and the father did not specify in his motion or at the hearing any statute pursuant to which he sought attorney fees. But the father argues in his appellate brief that he was entitled to attorney fees pursuant to OCGA § 19-6-2. Even if this court presumes that the trial court denied the father’s request for attorney fees pursuant to OCGA § 19-6-2,* the father has shown no abuse of discretion. The purpose of an award of attorney fees pursuant to OCGA § 19-6-2 is to “ensure effective representation of both spouses so that all issues can be fully and fairly resolved.” “[A]n award of attorney fees pursuant to [OCGA] § 19-6-2 is not predicated upon a finding of misconduct of a party.”

The father has failed to demonstrate that he is entitled to have this court decide the merits of any objection he has regarding the trial court’s judgment insofar as it requires the mother to act to purge herself of contempt. To the extent the father claims that the trial court abused its discretion in failing to make “proper factual findings,” none of the cases upon which the father relies requires the trial court to make factual findings when it did not award attorney fees. The cases, however, do demonstrate that a trial court is required to consider the relative financial positions of the parties; and in this case, the father concedes that “the [trial] court noted that both parties submitted financial affidavits.” Accordingly, the father has failed to demonstrate that the trial court abused its discretion in its decision to deny attorney fees.

Case No. A14A0309

3. The mother contends that the trial court erred by finding her in contempt of court as it pertains to making the child available for webcam and telephone communications, and for arriving late to the airport for visitation exchanges.

In the father’s motion for contempt (and complaint for modification of custody), he asked the trial court to find the mother in contempt of court for failing to abide by the terms of a prior modification order which required her to, inter alia, permit him (the non-custodial parent) to communicate with the child via webcam on three specified days of the week at specified times. The prior modification order further provided that “[i]f the child is unavoidably away from the residence at that [scheduled webcam communication] time, the custodial parent shall arrange for the child to call the noncustodial parent by telephone at that time.” After the hearing in this case, the trial court found that the mother was in wilful contempt of its order “as to the webcam calls.” The mother contends that the evidence did not support the trial court’s finding.

“The essence of civil contempt... is willful disobedience of a prior court order.”

The trial court has the power to see that there be compliance with the intent and spirit of its decrees and no party should be permitted to take advantage of the letter of a decree to the detriment of the other party. The trial court in a contempt case has wide discretion to determine whether [its] orders have been violated. [Its] determination will not be disturbed on appeal in the absence of an abuse of discretion.

At the hearing, the father testified as to days that the child had not been made available to communicate with him via webcam between the date of the last modification order (in July 2009) and the time he filed his motion (in July 2011). As to some of the days, there was no evidence adduced that the child was “unavoidably away from the residence” and unable to communicate via webcam.

The mother denied that she had ever failed to make the child available for webcam communications with the father during the pertinent period. “To the extent that [the mother’s] testimony conflicted with that of [the father], it was for the trial court to determine credibility.” The mother testified that if the father had to travel on webcam days for a business trip, “we reschedule [Skype or cell phone connection]”; but the evidence showed that on one occasion when the father was traveling and had trouble obtaining Internet access or receiving a call, the mother later informed him that “if you choose not to contact [the child] on the designated days and times, I do not have to provide you with a make up call per court order. You refuse — you loose [sic].” Also, in an e-mail to the father, the mother admitted that she had not always made the child available for webcam communications. Therefore, the evidence supported the trial court’s finding that the mother wilfully violated its order. “Thus, because there is some evidence to support the trial court’s order on this point, we find no abuse of discretion.”

Decided July 10, 2014 —

Reconsideration denied July 29, 2014 —

Charles Crawford, Akin & Tate, W. Morgan Akin, S. Lester Tate III, for appellant.

Christian A. Coomer, for appellee.

At the hearing the trial court announced that the mother was in contempt of court “as to [the child] being made available for calls, [and] for repeatedly being late to the airport.” But the court did not include such a determination in its written contempt order, insofar as “calls” meant phone calls, or as it concerned being late to the airport. Accordingly, there is no legal ruling for us to review in that regard.

Judgment affirmed in part and vacated in part, and case remanded with direction in Case No. A14A0308. Judgment affirmed in Case No. A14A0309.

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

       Although an error enumerated by the father is that the trial court’s order requiring him to “consent to a passport application for the parties’ child is preempted by federal law and regulation,” the father failed to identify any state law preempted by federal law and regulations upon which he relies on appeal. Notwithstanding, the father stated that the gravamen of his complaint is “whether the trial court has authority to force his consent.”

       See 22 CFR § 51.28 (a).

       See 22 CFR § 51.28 (a) (3) (ii) (G) (“An order of a court of competent jurisdiction providing for joint legal custody... will be interpreted as requiring the permission of both parents ....”); but see 22 CFR§ 51.28(a) (3) (i), (ii) (E) (providing that “Á passport application may be executed on behalf of a minor under age 16 by only one parent or legal guardian if such person provides: (i) A notarized written statement or affidavit from the non-applying parent or legal guardian, if applicable, consenting to the issuance of the passport; or (ii) Documentary evidence that such person is the sole parent or has sole custody of the minor. Such evidence includes, but is not limited to, . . . [a]n order of a court of competent jurisdiction . . . specifically authorizing the applying parent or legal guardian to obtain a passport for the minor, regardless of custodial arrangements. . . .”).

       See OCGA § 19-9-5 (c) (“In his or her judgment, the judge may supplement the [custody] agreement on issues not covered by such agreement.”); Daniel v. Daniel, 250 Ga. App. 482, 484-485 (2) (552 SE2d 479) (2001) (a ‘best interest of the child” standard is applicable in a change of custody action after there has been a showing of a change in condition materially affecting the child; the trial court’s decision will not be overturned absent abuse of discretion); OCGA § 19-9-3 (b) (“In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment....”); Gildar v. Gildar, 309 Ga. App. 730, 731-732 (710 SE2d 913) (2011) (applying abuse of discretion standard to trial court’s decision made pursuant to OCGA § 19-9-3 (b)).

       See 22 CFR § 51.20 (a) (“An application for a passport, a replacement passport, extra visa pages, or other passport related service must be completed using the forms the Department prescribes.”); 22 CFR§ 51.1 (a) (“Department means the United States Department of State.”); 22 CFR§ 51.5 (“(a) Apassport authorizing officer may adjudicate applications and authorize the issuance of passports, (b) Apassport authorizing officer will examine the passport application and all documents, photographs and statements submitted in support of the application in accordance with guidance issued by the Department.”); 22 CFR § 51.1 (h) (“Passport authorizing officer means a U.S. citizen employee who is authorized by the Department to approve the issuance of passports.”); 22 CFR § 51.7 (a) (“Apassport at all times remains the property of the United States and must be returned to the U.S. Government upon demand.”); 22 CFR § 51.28, supra (governing the issuance of passports to minors).

       See 22 CFR § 51.28 (a) (3) (i), (ii) (E).

       See generally Cooper/T. Smith Stevedoring Co. v. Ga. Ports Authority, 301 Ga. App. 62, 64 (686 SE2d 844) (2009) (where trial court and the parties applied only state law to a maritime contract without consideration of federal maritime law, appellate court vacated trial court’s ruling on motions for partial summary judgment and remanded case to trial court with direction that the motions be reconsidered to determine the application of pertinent federal and state law); Adage, Inc. v. Bank of America, N.A., 267 Ga. App. 877, 878 (1) (600 SE2d 829) (2004) (where federal law rather than Georgia law controlled issue, and trial court’s order showed that it applied Georgia law and failed to apply the controlling legal standards set forth in the provisions of the pertinent federal law, appellate court reversed trial court’s orders and remanded the case with directions that issue be reconsidered in light of the provisions of the federal law).

        Nesbit v. Nesbit, 295 Ga. App. 763 (673 SE2d 272) (2009) (citation and punctuation omitted).

        Ward v. Ward, 289 Ga. 250, 251-252 (2) (710 SE2d 555) (2011) (citation and punctuation omitted); Woods v. Hall, 315 Ga. App. 93, 97 (2) (726 SE2d 596) (2012).

       See Hunter v. Hunter, 289 Ga. 9, 10 (2) (709 SE2d 263) (2011) (appellate court presumed that attorney fees award was made pursuant to OCGA § 19-6-2 where trial court’s order did not specify the statute pursuant to which it had considered an award of attorney fees, neither party sought attorney fees pursuant to OCGA § 9-15-14, and the record did not show that the trial court had considered OCGA § 9-15-14); Moore v. Moore, 307 Ga. App. 889 (2), n. 1 (706 SE2d 465) (2011) (where the trial court’s brief order did not specify the basis for the award of attorney fees, but appellee indicated that he had sought attorney fees pursuant to OCGA § 9-15-14, case was remanded with direction that the trial court make express findings of fact and conclusions of law as to the statutory basis for an award of attorney fees or vacate its order).

       See generally Hunter, supra; Dallas v. Flying J, Inc., 279 Ga. App. 786, 791 (3) (632 SE2d 389) (2006) (appellant did not specify the statutory provision through which he had requested attorney fees, and appellate court presumed statutory basis upon which appellant had sought award of attorney fees).

        Wood v. Wood, 283 Ga. 8, 11 (6) (655 SE2d 611) (2008) (citation and punctuation omitted); see Padilla v. Padilla, 282 Ga. 273, 274-275 (1) (646 SE2d 672) (2007).

        Moon v. Moon, 277 Ga. 375, 378 (6), n. 4 (589 SE2d 76) (2003) (citation omitted); Findley v. Findley, 280 Ga. 454, 463 (2) (629 SE2d 222) (2006).

       See Sherman v. City of Atlanta, 293 Ga. 169, 172 (2) (744 SE2d 689) (2013) (“standing is in essence the question of. . . whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues, and litigants must establish their standing to raise issues before they are entitled to have a court adjudicate those issues”) (citations and punctuation omitted); Dept. of Human Resources v. Allison, 276 Ga. 175, 178 (575 SE2d 876) (2003) (“[t]he burden of proving the interest necessary to demonstrate a particular party’s standing is ordinarily placed on that party”); Travelers Indem. Co. v. Cumbie, 128 Ga. App. 723, 726 (3) (197 SE2d 783) (1973) (“only one who has been harmed is in position to complain of an error”).

       See Hunter, supra at 11 (2) (where the transcript of the final hearing established that the trial court properly considered the relative financial positions of the parties, appellate court could not say that the trial court manifestly or flagrantly abused its discretion in denying attorney fees to ex-wife); Holloway v. Holloway, 288 Ga. 147, 150 (2) (702 SE2d 132) (2010) (where the trial court ordered wife to pay attorney fees to husband without findings of fact and without any cogent evidence of the work performed by husband’s counsel and the nature thereof, the award of attorney fees was reversed); Sponsler v. Sponsler, 287 Ga. 725, 727-728 (2) (699 SE2d 22) (2010) (no abuse of the trial court’s sound discretion in its denial of attorney fees to husband where the record and the transcript of the final hearing established that the trial court had properly considered the relative financial positions of the parties).

        Hunter, supra; Sponsler, supra; OCGA § 19-6-2 (a) (1).

       See generally Hammond v. Hammond, 282 Ga. 456, 458 (5) (651 SE2d 95) (2007).

        Kremer v. Tea Party Patriots, Inc., 314 Ga. App. 459, 464 (1) (724 SE2d 466) (2012) (citation and punctuation omitted).

        Davis v. Davis, 250 Ga. 206, 207 (296 SE2d 722) (1982) (citations and punctuation omitted).

        Saravia v. Mendoza, 303 Ga. App. 758, 763 (2) (695 SE2d 47) (2010) (citation and footnote omitted).

        Kremer, supra.

       To the extent that “calls” meant webcam calls or communications, we have addressed that matter herein.

       See generally Hipster, Inc. v. Augusta Mall Partnership, 291 Ga. App. 273, 277 (3) (661 SE2d 652) (2008) (“what the judge orally declares is no judgment until the same has been reduced to writing and entered as such,” and until then, there is no legal ruling for appellate court to review) (punctuation and footnote omitted); Shirley v. Abshire, 288 Ga. App. 819, 820 (655 SE2d 694) (2007).