author: DOYLE, Presiding Judge.

text:
    A14A1045.
    SCHAFF et al. v. SNAPPING SHOALS ELECTRIC MEMBERSHIP CORPORATION.
    (767 SE2d 807)
   DOYLE, Presiding Judge.

Casey Schaff was injured when a guy wire came loose and struck him while he was working on a utility pole installed, owned, and maintained by Snapping Shoals Electric Membership Corporation (“SSEMC”). Casey and his wife, Sherri Schaff, sued SSEMC, asserting claims for negligence, negligence per se, and loss of consortium. SSEMC moved for summary judgment, and the trial court granted it. The Schaffs appeal that ruling, and we affirm for the following reasons.

We review a grant of summary judgment de novo, viewing the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. A defendant demonstrates entitlement to summary judgment by showing that the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. The defendant does not need to affirmatively disprove the plaintiff’s case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.

Viewed in favor of the Schaffs, the record shows Casey was employed as a field auditor for Charter Communications, a cable company. As such, Casey checked cable connections at various locales, and he sometimes had to climb utility poles using a ladder to check cable connections thereon. Charter provided mandatory training regarding how to properly climb the poles. On December 6, 2007, approximately seven months after beginning work with Charter, Casey was dispatched to a utility pole in Henry County to disconnect service. After visually inspecting the pole and the ladder and verifying that “everything looked good,” Casey attached his safety harness and began climbing. After he reached the top of the pole, a guy wire from the pole snapped and hit him, causing him to fall from the ladder. Casey suffered a fractured back and a concussion, and he also injured his jaw and hip.

SSEMC installed the utility pole involved in this case in April or May of 2007. It is undisputed that the guy wire that allegedly snapped and struck Casey was installed, owned, and maintained by Charter, Casey’s employer.

The Schaffs filed their initial lawsuit against SSEMC on December 7, 2009. They dismissed their initial action without prejudice on June 22,2011, and refiled this action on December 15,2011, asserting claims for negligence, negligence per se, and loss of consortium. SSEMC filed a motion for summary judgment, and the trial court granted it, finding that (a) the Schaffs’ negligence claim failed because they failed to establish a duty, breach, or causation; (b) the Schaffs failed to support their negligence claim by specifying which statutes SSEMC allegedly violated; and (c) Sherri’s loss of consortium claim failed as a derivative claim. This appeal followed.

1. The Schaffs argue that the trial court erred by granting summary judgment to SSEMC on Casey’s negligence claim. We disagree.

To prevail on a negligence claim, a plaintiff must demonstrate

(1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

Therefore,

[b]efore negligence can be predicated upon a given act, some duty to the [plaintiff] must be sought and found, the observance of which duty would have averted or avoided the injury or damage. No matter how innocent the plaintiff may be, he is not entitled to recover unless the defendant did something that it should not have done, or failed to do something that it should have done pursuant to the duty owed the plaintiff.

“A power company is charged with the duty of exercising ordinary care in the construction and maintenance of its wires, poles, transformers and equipment.” Here, however, it is undisputed that although SSEMC owned, installed, and maintained the utility pole, the guy wire that snapped and struck Casey was owned, installed, and inspected by Charter. Therefore, SSEMC did not owe Casey a duty to inspect or maintain the guy wire, and the trial court did not err by granting summary judgment to SSEMC on the Schaffs’ negligence claim.

2. The Schaffs also contend that the trial court erred by granting summary judgment to SSEMC on their negligence per se claim. Again, we disagree.

Generally, negligence per se arises when a statute or ordinance is violated. The violation of certain mandatory regulations may also amount to negligence per se if the regulations impose a legal duty. OCGA § 51-1-6 provides: “When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” Assuming that a violation of a statute or mandatory regulation has occurred, before negligence per se can be determined, a trial court must consider (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm the statute was intended to guard against. Finally, if the court finds negligence per se, the plaintiffs must then demonstrate a causal connection between the negligence per se and the injury.

Thus, in order to establish negligence per se, plaintiffs must specify the statute, ordinance, or regulation that they allege SSEMC violated.

Here, the Schaffs allege in their complaint that SSEMC “vio-lat[ed] its own agreement, industry, and reasonable inspection, supervision, and maintenance standards.” This statement, without more specificity, is insufficient to establish negligence per se. The trial court properly granted summary judgment to SSEMC on this claim.

Decided November 18, 2014

Reconsideration denied December 4, 2014

Terry D. Jackson, for appellants.

McNatt, Greene & Peterson, Hugh B. McNatt, Scrudder, Bass, Quillian, Horlock, Taylor & Lazarus, William W. Horlock, Jr., David C. Rhodes, for appellee.

3. Finally, the Schaffs argue that the trial court erred by granting summary judgment on Sherri’s loss of consortium claim. For the reasons stated above, Casey’s personal injury claims fail, and therefore, Sherri’s derivative loss of consortium claim fails as well.

Judgment affirmed.

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

       (Punctuation and footnote omitted.) Meadows v. Diverse Power, Inc., 296 Ga. App. 671 (675 SE2d 571) (2009). See also OCGA § 9-11-56 (c).

       Pursuant to a joint use agreement, SSEMC permitted Charter to install certain lines, including guy wires, to SSEMC poles.

       (Punctuation omitted.) Lawson v. Entech Enterprises, Inc., 294 Ga. App. 306, 307 (1) (669 SE2d 211) (2008), quoting Bradley Center, Inc. v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982).

       (Citation and punctuation omitted.) City of Douglasville v. Queen, 270 Ga. 770, 771 (1) (514 SE2d 195) (1999).

        McGarity v. Hart Elec. Membership Corp., 307 Ga. App. 739, 745 (2) (706 SE2d 676) (2011), citing Schuessler v. Bennett, 287 Ga. App. 880, 886 (3) (652 SE2d 884) (2007) and Collins v. Altamaha Elec. Membership Corp., 151 Ga. App. 491-492 (1) (A) (260 SE2d 540) (1979).

        See Bruscato v. Gwinnett-Rockdale-Newton Community Svc. Bd., 290 Ga. App. 638, 643 (1) (660 SE2d 440) (2008). Compare McGarity, 307 Ga. App. at 745-747 (2) (summary judgment improper because there was evidence that the utility company failed to properly inspect or maintain its own live and uncovered electrical wire, which caused severe burns to the plaintiff when he hit it with his foot).

       (Punctuation omitted.) Norman v. Jones Lang Lasalle Americas, 277 Ga. App. 621, 627-628 (2) (b) (627 SE2d 382) (2006).

       See Champion Windows of Chattanooga v. Edwards, 326 Ga. App. 232, 241 (2) (756 SE2d 314) (2014); Norman, 277 Ga. App. at 628-629 (2) (b).

       See Behforouz v. Vakil, 281 Ga. App. 603, 604 (636 SE2d 674) (2006), citing White v. Hubbard, 203 Ga. App. 255, 256 (416 SE2d 568) (1992).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A14A1118.
    HARRIS v. THE STATE.
    (767 SE2d 747)
   Ray, Judge.

Following a jury trial, Michael Orlando Harris was convicted of child molestation (OCGA § 16-6-4 (a)). On appeal, Harris contends that his trial counsel was ineffective in failing to render informed advice as to whether he should accept the State’s offer of a negotiated guilty plea. For the reasons set forth below, we disagree and affirm.

Viewed in the light most favorable to the jury’s verdict, see Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that in April 2011, Harris lived with his wife, Quianna Harris, their two young children, and twelve-year-old P.D., Quianna Harris’s daughter from a previous relationship. R D. testified that while she and Harris were alone in the house, they played the game of “truth or dare.” During the course of the game, Harris dared R D. to take off her clothes, which she did. After P. D. put her clothes back on, she noticed that Harris, who was clothed, had an erection. P. D. further testified that Quianna Harris became angry after she found out what P. D. and Harris had done, and that she came into P. D.’s room, scratched her, and pulled her out of the bed.

A police officer interviewed P. D. at her school, and P. D. told the officer that Harris dared her to undress and that she got naked. When the officer spoke with Quianna Harris, she informed him that Harris told her that he played “truth or dare” with P. D. and that he had asked P. D. to get nude. The officer also testified that Harris told the officer that he had played “truth or dare” with P. D. and that he had dared P. D. to get naked.

A grand jury issued a bill of indictment accusing Harris of one count of child molestation and one count of enticing a child for indecent purposes. Before trial, the State extended a plea offer to Harris consisting of ten years probation, along with conditions including that he register as a sex offender. Harris rejected the offer. At trial, before joining issue, the State gave Harris an opportunity to reconsider whether he wanted to pursue a negotiated plea. After consultation with Harris, defense counsel informed the trial court that Harris had chosen to go forward. The case proceeded to trial, and after the trial court granted Harris’s motion for a directed verdict on the charge of enticing a child for indecent purposes, the jury found Harris guilty of child molestation. The trial court then sentenced Harris to twelve years, with the first five years to be served in confinement and the remainder to be served on probation. Following a hearing, the trial court denied Harris’s motion for new trial. Harris appeals.

Harris contends that his conviction should be reversed because he did not receive informed advice during pre-trial discussions with his trial counsel and that, but for trial counsel’s deficiencies, there is a reasonable probability that he would have accepted the State’s plea offer. We disagree.

To show ineffective assistance of trial counsel, Harris is required to establish that his “attorney’s performance was deficient, and that the deficiency caused such prejudice that there is a reasonable likelihood that, but for the attorney’s error, the outcome at trial would have been different.” Dulcio v. State, 292 Ga. 645, 650 (3) (740 SE2d 574) (2013). He must also “overcome the strong presumption that counsel’s conduct fell within the range of reasonable professional conduct, which is broad.” Id. In our appellate review, we defer “to the trial court’s factual findings, which are to be upheld unless clearly erroneous, and examine [ ] the lower court’s legal conclusions de novo.” Id.

In the context of plea negotiations, the decision whether to accept a proposed plea agreement must be made by the accused, who “should have the full and careful advice of counsel.” (Citation and punctuation omitted.) Cammer v. Walker, 290 Ga. 251, 255 (2) (719 SE2d 437) (2011).

[P]rior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered. An attorney ordinarily may satisfy the duty to provide informed legal advice regarding a plea offer by discussing with the accused the risks of going to trial, the evidence against him or her, and differences in possible sentences that would be imposed following a guilty plea and following a conviction at trial.

(Citations and punctuation omitted.) Id.; see Lloyd v. State, 258 Ga. 645, 648 (2) (a) (373 SE2d 1) (1988) (defendant “is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him”).

Harris’s trial counsel testified at the hearing on motion for new trial that he informed Harris that the State had extended a plea offer of ten years probation pursuant to which Harris would have to register as a sex offender. Counsel told Harris that if he went to trial and lost, he could be sentenced to up to 20 years in prison. Harris, according to trial counsel, did not want to register as a sex offender, but counsel told Harris that if he was convicted he would almost certainly go to prison and that he would still have to register as a sex offender. Counsel also informed Harris that the statement of a child is enough to convict for child molestation, and he told him that “if the jury believes [P. D.], he’s going to prison. If the jury doesn’t believe the child, he’s not. And he has the option to walk back out the door with a probated sentence.” Counsel maintained that he made a copy of the discovery he received from the State and shared it with Harris. He could not recall if he also made copies for Harris of the recorded statements of the witnesses, but counsel listened to the recordings and informed Harris of the contents of the statements. In view of the foregoing, the evidence is sufficient to establish that Harris’s trial counsel informed him of the State’s plea offer, and that they discussed the risks of going to trial, the evidence against Harris, and the differences in possible sentences following a guilty plea and following a conviction at trial, which “ordinarily may satisfy the [attorney’s] duty to provide informed legal advice regarding a plea offer [.]” Cammer, supra at 255 (2).

Harris argues that his counsel nevertheless failed to perform adequate legal research, and did not properly advise Harris of the applicable law — in particular that touching a child is not required to show child molestation and that the act required by the criminal statute maybe verbal. See, e.g., Hicks v. State, 254 Ga. App. 814, 816 (2) (563 SE2d 897) (2002) (verbal act of asking the victim to spread her legs was sufficient to support conviction for child molestation); Thompson v. State, 187 Ga. App. 563, 563-564 (2) (370 SE2d 819) (1988) (although defendant did not touch the child, evidence that he required the child to dance naked in front of him was sufficient to constitute child molestation). Harris points out that during the hearing on motion for new trial, his trial counsel maintained that the case against Harris did not “fit [ ] the parameters of child molestation [.]” Harris also testified that his trial counsel told him that there was no child molestation because he did not touch P. D.

Notwithstanding Harris’s arguments, trial counsel testified that he conducted legal research and that he was familiar with Hicks, supra. Counsel also maintained that he informed Harris that he could be convicted of child molestation if the jury concluded that anything Harris did was an immoral act to someone under the age of 16. See OCGA § 16-6-4 (a) (1) (“A person commits the offense of child molestation when such person ... [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”); Thompson, supra at 563 (2) (“[w]hether defendant committed an indecent or immoral act in the presence of the victim... with the intent to arouse the sexual desires of either the victim or himself... is a jury question, and what the jury determines from a consideration and evaluation of the whole ought to be accepted”). After hearing the witnesses’ testimony, the trial court, acting as the finder of fact, concluded that Harris’s trial counsel did inform Harris that he could be convicted of child molestation and that much of Harris’s testimony was “not... at all credible.” See, e.g., Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003) (the appellate court will accept the trial court’s factual findings and credibility determinations unless clearly erroneous); In the Interest of K. F., 316 Ga. App. 437, 437-438 (1) (729 SE2d 575) (2012) (notwithstanding the accused’s testimony that his counsel had visited him only twice and did not communicate any Information as to the evidence that would be presented at trial, or that the State had presented any plea offers, trial court was authorized to believe trial counsel’s testimony even though it conflicted with that of the accused). In view of the foregoing, the evidence authorized the trial court to find that Harris’s trial counsel fulfilled his duty of providing Harris with informed legal advice regarding the plea offer, and that counsel’s performance was not deficient.

Decided October 2, 2014

Reconsideration denied December 4, 2014.

Clark & Towne, Jessica R. Towne, for appellant.

Daniel J. Porter, District Attorney, Samantha Routh, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Harris also asserts in his claim of error that trial counsel “failed to interview witnesses or review discovery adequately with appellant,” but he fails to support these claims with citation of authority or argument. See Court of Appeals Rule 25 (c) (an enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned). However, as we mentioned supra, counsel testified that he made copies of the State’s discovery for Harris and informed him of the contents of the witnesses’ recorded statements. To the extent it can be inferred that Harris claims that his counsel was deficient in failing to interview P. D., trial counsel testified that he chose not to ask the child about the case or her recorded statement because he did not “want to show our hand.” Given that trial counsel reviewed P. D.’s statements to police and made a considered, tactical decision not to attempt to interview the child, we cannot say that counsel’s actions fell outside the broad range of reasonable professional conduct, nor that counsel’s decision prejudiced Harris. See generally Robbins v. State, 290 Ga. App. 323, 332 (4) (e) (659 SE2d 628) (2008) (áppellant failed to show that he was prejudiced by counsel’s failure to interview the child victim).


author: McFadden, Judge.

text:
    A14A1137.
    MURPHY et al. v. MURPHY.
    (767 SE2d 789)
   McFadden, Judge.

Although this is our third opinion in this custody modification action, we are still not presented with a final order on the petition to modify. Instead we are presented with a series of rulings holding appellant Nancy Michelle Murphy and her attorneys, Millard Farmer and Larry King, in contempt of court.

Farmer has been held in contempt of an earlier order that prohibited the parties from discussing the case with their children. As Farmer signed a brief to which he exhibited affidavits of the children echoing their mother’s anger at John Murphy, there is sufficient evidence to support that ruling; and we find that Farmer received sufficient notice and opportunity to be heard before he was held in contempt. Nancy Michelle Murphy has been held in contempt of another provision of that order which required her to cooperate with a custody evaluator. Any insufficiency of the evidence presented on that charge at the contempt hearing was supplied by her own brief in opposition to the motion for contempt. In that brief she announced that she deemed herself to be entitled to defy the provision directing her to cooperate with the evaluator. And again we find sufficient notice and opportunity to be heard. Finally, Farmer and King have been held, in contempt for failure to have Nancy Michelle Murphy present at the contempt hearing. But as she was not under subpoena and had not been ordered to appear in person, she was entitled to appear through counsel; so that ruling must be reversed.

We therefore affirm the trial court’s contempt order in part and reverse it in part.

1. Prior appeals.

Nancy Michelle Murphy and John Murphy were divorced in 2006. They have two children, born in November 1998 and January 2001. In April 2012, John Murphy filed this action, seeking to modify the child custody provisions of the divorce decree.

Nancy Michelle Murphy has repeatedly moved to recuse the trial court judge. Murphy v. Murphy, 322 Ga. App. 829 (747 SE2d 21) (2013), her first appeal in this case, was a direct appeal from an interlocutory order denying one of her motions to recuse. We dismissed on the basis the order was not appealable as a collateral order and was not appealable under the version of OCGA § 5-6-34 (a) (11) adopted in 2013, which authorizes direct appeals from “judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders.”

Our Supreme Court granted Nancy Michelle Murphy’s petition for certiorari to address whether we erred when we concluded that the 2013 amendment of OCGA § 5-6-34 (a) (11) applied retroactively. In Murphy v. Murphy, 295 Ga. 376 (761 SE2d 53) (2014), the Supreme Court ruled that the amendment did not apply retroactively but nonetheless affirmed the dismissal of Nancy Michelle Murphy’s appeal on the ground that, “even under the prior version of OCGA § 5-6-34 (a) (11), there was no right of direct appeal from the recusal order at issue.” Id. at 379.

In the meantime, on August 23, 2013, the trial court entered an order that, among other things, denied John Murphy’s motion to temporarily change physical custody of the children, directed the parties not to discuss the case with the children, ordered a custody evaluation, and directed the parties to cooperate with the custody evaluator. In Nancy Michelle Murphy’s second appeal to our court, Murphy v. Murphy, 328 Ga. App. 767 (759 SE2d 909) (2014), we affirmed that order. We imposed a frivolous appeal penalty against Nancy Michelle Murphy’s counsel, finding that the appeal was frivolous and dilatory and rife with violations of Court of Appeals Rule 10, which forbids oral or written personal remarks that are discourteous or disparaging to any judge, opposing counsel, or any court.

2. Facts underlying the present appeal.

Six days after the August 23, 2013 order was entered, John Murphy filed a motion seeking to hold Nancy Michelle Murphy in contempt for violating its visitation provisions. In response Nancy Michelle Murphy filed affidavits from the children, testifying that the motion for contempt had been read to them in the presence of their mother, that their mother had not interfered with their father’s visitation as alleged in the motion for contempt, and that they were extremely angry at their father for not telling the truth to the court.

John Murphy then amended his motion for contempt. He alleged that Nancy Michelle Murphy and “her lawyer” were in contempt of the order’s provision prohibiting the parties from discussing the case with the children. He also alleged that Nancy Michelle Murphy was violating the requirement of the August 23 order that she cooperate with the custody evaluator in that she had refused to complete the paperwork the custody evaluator required before beginning the evaluation.

The trial court conducted a hearing on the contempt motion on October 3,2013. Nancy Michelle Murphy and Farmer did not appear, but King did appear on behalf of Nancy Michelle Murphy. After hearing testimony from John Murphy and the driver hired to transport the children from Nancy Michelle Murphy’s residence to John Murphy’s residence, the trial court found Nancy Michelle Murphy, Farmer, and King to be in contempt. The trial court found Farmer to be in contempt for discussing the case with the children in violation of the August 23 order. It found Nancy Michelle Murphy to be in contempt for wilfully refusing to cooperate with the custody evaluator in violation of the August 23 order. And it found King and Farmer to be in contempt because of Nancy Michelle Murphy’s failure to appear at the contempt hearing.

Nancy Michelle Murphy, Farmer, and King filed an application for discretionary appeal of the contempt order. We granted the application, and this latest appeal followed. We first address John Murphy’s motion to dismiss the appeal, then turn to the deficiencies in the appellants’ brief, and finally, address the merits of the challenges to the contempt order.

3. Motion to dismiss the appeal.

Because this is an appeal from a contempt order, the appellants were not required to follow the interlocutory appeal procedure. OCGA § 5-6-34 (a) (2); Massey v. Massey, 294 Ga. 163, 164-165 (2) (751 SE2d 330) (2013); see also OCGA § 5-6-34 (a) (11) (making “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders” immediately appealable); OCGA § 5-6-37 (“Unless otherwise provided by law, an appeal may be taken to the Supreme Court or the Court of Appeals by filing with the clerk of the court wherein the case was determined a notice of appeal.”).

Because they filed an application for discretionary appeal, we have jurisdiction regardless of whether or not they were entitled to follow the direct appeal procedure. OCGA § 5-6-35 (j). So we do not decide if they were so entitled, and we deny John Murphy’s motion to dismiss the appeal.

4. Deficiencies in the appellants’ brief.

As a threshold matter, we address the deficiencies in the appellants’ brief.

The Appellate Practice Act, at OCGA § 5-6-40, provides that enumerations of error are to be concise and “shall set out separately each error relied upon.” “It is desirable that each enumeration be explicit, precise, intelligible, unambiguous, unmistakable, and unequivocal.” MacDonald v. MacDonald, 156 Ga. App. 565, 569 (1) (d) (275 SE2d 142) (1980) (physical precedent). Our rules direct that “[t]he sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.” Court of Appeals Rule 25 (c) (1). As to each enumeration of error, an appellant is to specify how the error was preserved and to state concisely the applicable standard of review. Court of Appeals Rule 25 (a). Briefs and enumerations of error that do not conform to those requirements hinder our ability to determine the basis and substance of an appellant’s appeal. Williams v. State, 318 Ga. App. 744, 744-745 (734 SE2d 745) (2012).

The appellants’ brief does not conform to those requirements. Their brief and enumerations of error are rambling and difficult to follow; several enumerations contain multiple allegations of error. These deficiencies are illustrated by enumeration of error four, which is set out below.

As to some of the issues that the appellants attempt to raise, these deficiencies constitute abandonment. The appellants do not address each enumeration of error in the argument section of their brief, and their arguments in that section do not follow the order of the enumeration of errors. And many of the alleged errors referenced in the enumeration of errors are not supported with arguments, citations to the record, or citations of authority. Court of Appeals Rule 25 (c) (2) provides, “Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.” See also Court of Appeals Rule 25 (c) (2) (i) (“Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.”).

In spite of these deficiencies, we will review the claims of error that we are authorized to reach to the extent that we can ascertain the appellants’ arguments, Williams, 318 Ga. App. at 744-745, and to the extent they have not abandoned them.

5. Claim that trial judge is disqualified.

The appellants argue that the Honorable A. Quillian Baldwin, Jr., was disqualified from adjudicating the contempt motion for two reasons: because another judge’s transfer of the case to Judge Baldwin was illegal and because unadjudicated disqualification motions were pending against Judge Baldwin at the time that he decided the contempt motion. However, the appellants have cited no authority for the proposition that the transfer of the case to Judge Baldwin was illegal. On the contrary, Uniform Superior Court Rule 3.3 authorizes “an assigned judge [to] transfer an assigned action to another judge with the latter’s consent in which event the latter becomes the assigned judge.” And there are no unadjudicated disqualification motions. Judge Baldwin orally denied all such motions before hearing the contempt motion. See Uniform Superior Court Rule 25.1 (“In no event shall the motion [for disqualification] be allowed to delay the trial or proceeding.”).

The appellants argue that Judge Baldwin was deprived of jurisdiction to consider the contempt motion because the August 23 order was currently on appeal and subject to supersedeas. Under OCGA § 5-6-34 (e), however, when a party appeals an order granting non-monetary relief in a child custody case, the order stands until reversed or modified by the reviewing court unless the trial court states otherwise in its judgment or order. The trial court did not state otherwise in the August 23 order, so that order stood and remained enforceable through contempt proceedings notwithstanding the pending appeal. See Walker v. Walker, 239 Ga. 175, 176 (236 SE2d 263) (1977) (custody award that is not subject to supersedeas is enforceable through contempt; decided before July 1, 2011 effective date of OCGA § 5-6-34 (e)).

6. Contempt citations.

Having addressed these preliminary matters, we now turn to the trial court’s order finding Farmer to be in contempt for discussing the case with the children in violation of the August 23 order, finding Nancy Michelle Murphy to be in contempt for wilfully refusing to cooperate with the custody evaluator in violation of the August 23 order, and finding both attorneys to be in contempt because of Nancy Michelle Murphy’s failure to appear at the contempt hearing.

(a) Violation of the prohibition of discussing this case with the children.

The trial court held attorney Farmer in contempt after finding that he was “discussing the issues, allegations, and claims in this case with the children and that such discussions are not necessary to implement the terms of the August Order.” The appellants argue that this judgment of contempt must be reversed because Farmer did not receive adequate notice and because the evidence does not support it.

(i) Notice.

The appellants argue that the trial court erred in finding that they had sufficient notice of the contempt allegations against them and the hearing on the contempt. We conclude that the notice was reasonable.

Whether or not a party is entitled to notice of the charges of contempt and a hearing on those charges depends on the type of contempt he is charged with. “Acts of contempt are either direct, meaning they are committed within the sensory perception of the judge, or they are indirect, meaning they occur outside the sensory perception of the judge.” In re Shook, 254 Ga. App. 706, 707 (563 SE2d 435) (2002) (citation and punctuation omitted). When a party is charged with committing direct contempt, no advance notice is required and due process is satisfied “by simply giving [the party charged] an opportunity to speak on her own behalf.” Johnson v. State, 258 Ga. App. 33, 36 (2) (b) (572 SE2d 669) (2002) (citation omitted). When a party is charged with committing indirect contempt, the party is “entitled, among other things, to reasonable notice of the charges, to counsel of his own choosing, and to the opportunity to call witnesses.” Ramirez v. State, 279 Ga. 13, 16 (3) (608 SE2d 645) (2005).

Farmer was charged with indirect contempt and therefore was entitled to reasonable notice of the allegations against him. “[T]he notice must be reasonably calculated to inform persons of the charges against them and their opportunity for a hearing at a specific time and place to present their objections.” Hedquist v. Hedquist, 275 Ga. 188, 189 (563 SE2d 854) (2002) (citation omitted). The notice here met those requirements.

The appellants were adequately informed of the charges. The amended motion for contempt sufficiently specified the allegedly contumacious conduct. It sought to hold counsel in contempt for discussing the issues in the case with the parties’ children.

The appellants argue that referring to “Defendant’s lawyer” instead of “Millard Farmer” rendered the motion insufficient. They cite no supporting authority for that argument, and we reject it.

The appellants were adequately notified of their opportunity to be heard at a specific time and place. On September 12, 2014, counsel for John Murphy served upon counsel for Nancy Michelle Murphy a “Notice of Hearing” that specified the date, time, and location of a hearing before the trial court “in order for [the trial court] to consider the relief requested in Plaintiff’s Motion for Contempt filed in the above captioned matter on August 29, 2013.” Counsel served that “Notice of Hearing” by United States mail and by e-mail. Additionally the trial court issued a calendar to counsel for the parties, confirming that a hearing was scheduled for October 3, 2013. The appellants do not deny receiving the notice of hearing or the calendar. Counsel for John Murphy served the amended motion for contempt upon counsel for Nancy Michelle Murphy on September 27, 2013, six days before the scheduled hearing. Under these facts, we find that the trial court did not err in concluding that the appellants received reasonable, sufficient notice. See Gibson v. Gibson, 234 Ga. 528, 529-530 (3) (216 SE2d 824) (1975) (notice less than five days before hearing, which appellant did not dispute receiving, was reasonable). Compare Hedquist, 275 Ga. at 190 (notice of hearing that did not specify that trial court would hear the contempt motions at pretrial conference was inadequate).

(ii) Sufficiency of the evidence.

Farmer argues that the contempt must be reversed because the evidence does not support the finding of contempt. Our standard of review is dictated by the nature of the contempt, whether criminal or civil. In re Waitz, 255 Ga. App. 841, 842 (567 SE2d 87) (2002). The trial court sentenced Farmer to “be incarcerated in the Coweta County, Georgia jail for a period of 20 days or until he pa[id] One Thousand Dollars ($1,000.00) to the Court.” Because he was sentenced to imprisonment for a specified, unconditional period, Farmer’s contempt was criminal. See In the Interest of J. D., 316 Ga. App. 19, 21 (1) (728 SE2d 698) (2012) (“If the contemnor is imprisoned for a specified unconditional period . . . the purpose is punishment and thus the contempt is criminal.”) (citation and punctuation omitted).

On appeal of a criminal contempt conviction the appropriate standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

In re Waitz, 255 Ga. App. at 842 (citation and punctuation omitted).

After viewing the evidence in the light most favorable to the prosecution, we conclude that the trial court could have found the essential elements of the crime beyond a reasonable doubt. Farmer signed the brief to which the affidavits reflecting the children’s knowledge of the case were attached. Also attached to that brief is an affidavit of Farmer himself, notarized on the same day by the notary who notarized the children’s affidavits.

To the extent Farmer argues that he cannot be held in contempt for violating a provision directed at the parties rather than himself, his argument is unavailing. The violation of a court’s order by one who was not a party to the proceedings can be punished as a contempt if the contemnor had actual notice of the order and is in privity with, aided and abetted, or acted in concert with the named party in acts constituting a violation of the order. The Bootery v. Cumberland Creek Properties, 271 Ga. 271, 272 (2) (517 SE2d 68) (1999). It is undisputed that Farmer had actual notice of the order and acted as Nancy Michelle Murphy’s representative when obtaining the affidavits from the children.

(b) Failure to cooperate with the custody evaluator.

The trial court held Nancy Michelle Murphy in contempt after finding that she had not cooperated with the custody evaluator. The appellants argue that this judgment of contempt must be reversed because Nancy Michelle Murphy did not receive adequate notice and because the evidence does not support it.

(i) Notice.

Nancy Michelle Murphy was entitled to reasonable notice related to the allegations of indirect contempt for violating the August 23, 2013 court order. For the reasons discussed in Division 6 (a) (i), supra, we conclude that she received such notice.

(ii) Sufficiency of the evidence.

The trial court sentenced Nancy Michelle Murphy to incarceration “until she complied] with the August Order by signing the documents previously submitted to her by [the custody evaluator’s] office.” This was a civil contempt. See In the Interest of J. D., 316 Ga. App. at 21-22 (1) (“If the contemnor is imprisoned only until he performs a specified act, the purpose is remedial and hence the contempt is civil.”) (citations omitted). “In civil contempt appeals, if there is any evidence from which the trial court could have concluded that its order had been violated, we are without power to disturb the judgment absent an abuse of discretion.” In re Waitz, 255 Ga. App. at 842 (citation omitted).

We hold that some evidence supported the conclusion that Nancy Michelle Murphy violated the August 23 order by refusing to cooperate with the custody evaluator. The August 23 order set an October 15, 2013 deadline for completion of the custody evaluation. John Murphy testified that he had done everything the custody evaluator required in order to begin the evaluation, yet the evaluation had not proceeded. It is not disputed that as of November 19, 2013, the date of the trial court’s contempt order, that evaluation had not occurred. And, in a response to the amended motion for contempt which she filed on October 22, 2013, Nancy Michelle Murphy expressly defied the August 23 order and declared herself justified in refusing to sign the documents that were a prerequisite to the custody evaluation. The trial court was therefore authorized to conclude that she had not signed those documents. See OCGA § 24-8-821 (“Without offering the same in evidence, either party may avail himself or herself of allegations or admissions made in the pleadings of the other.”).

This is sufficient evidence to authorize the trial court to conclude that Nancy Michelle Murphy violated the August 23 order by refusing to cooperate with the custody evaluator. See Edwards v. Edwards, 254 Ga. App. 849, 854 (563 SE2d 888) (2002) (a person who simply ignores a court order that she believes is erroneous “does so at [her] own peril and must assume the risk of being held in contempt”) (citation and punctuation omitted).

Decided November 17, 2014

Reconsideration denied December 4, 2014

Millard C. Farmer, Jr., Larry King, for appellants.

Glover & Davis, Taylor B. Drake, Michael W. Warner, Kilpatrick Townsend & Stockton, Stephen E. Hudson, William R. Poplin, Jr., for appellee.

(c) Nancy Michelle Murphy’s failure to appear at the hearing.

We agree with the appellants that the trial court erred in holding Farmer and King in contempt because of Nancy Michelle Murphy’s failure to appear at the contempt hearing.

Absent a properly served subpoena or court order requiring a party to appear in person, a party may choose not to be present at the trial of the case and to be represented solely by counsel. This rule accords with the long-established principle that there is full power on the part of the counsel to represent the client, and it is just the same as if the client were there in person.

In re Estate of Coutermarsh, 325 Ga. App. 288, 290 (1) (752 SE2d 448) (2013) (citations and punctuation omitted). See also Masonry Standards v. UPS Truck Leasing, 257 Ga. 743, 743-744 (363 SE2d 553) (1988) (trial court erred in sanctioning defendant for failing to appear in person at trial). John Murphy has pointed to nothing that required Nancy Michelle Murphy to appear in person at the contempt hearing. And because Nancy Michelle Murphy was not required to appear in person, Farmer and Kang could not be held in contempt for her failure to appear.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Boggs, J., concur.

       Whether the court erred in holding Michelle Murphy in contempt for not cooperating, within the time provided by the Court, with the custody evaluator, who presented an illegal condition for Michelle Murphy to perform in order to “cooperate” by requiring that Michelle Murphy execute the psychologist’s contract. (V17 p.3627) The contempt adjudication was not supported with proof beyond a reasonable doubt of Michelle Murphy’s violation of the Order. If proven beyond a reasonable doubt that Michelle Murphy violated any directive of the custody evaluator, the directive placed an illegal condition upon Michelle Murphy that is being appealed. In order to accomplish what Judge Baldwin ordered, Michelle Murphy would have had to be subjected to the following, illegal conditions: Michelle Murphy would have been required to execute a contract that is void against the public policy of the State of Georgia, in that: (a) the contract that requires Michelle Murphy to grant the psychologist full immunity from liability, not just the immunity from liability provided by statute that exempts immunity to the psychologist resulting from her bad faith; (b) the contract requires that Michelle Murphy become financially liable for fees that she cannot afford, as it requires that she pay expensive fees to obtain discovery and production, testimony at trial, or be deprived of this evidence that could be necessary to her defense of the psychologist’s findings or for use by her as evidence against the plaintiff; (c) the contract provides that the psychologist be paid 18% interest for late payments of fees; (d) unless Michelle Murphy executed the contract, the psychologist would not inform her counsel of the method to be used for the “custody evaluation,” and would not provide other information about the scope of the investigation of John Harold Murphy and Renee L. Haugerud that would be conducted before rendering an opinion to the Court; (e) unless Michelle Murphy executed the contract, the psychologist stated that she would not talk to counsel for Michelle Murphy or Michelle Murphy; and, (f) Michelle Murphy would have been subjected to a psychologist who was selected by the guardian ad litem, who was exposed by counsel for Michelle Murphy for converting to her personal use trust funds provided to her in the case, in violation of USCR 24.9 (8) (g).

       Finally as noted above, our previous opinion rebuked appellants for repeated violations of Court of Appeals Rule 10 which provides, “Personal remarks, whether oral or written, which are discourteous or disparaging to any judge, opposing counsel, or any court, are strictly forbidden.” Murphy, 328 Ga. App. at 774 (4). Their present brief is only somewhat better. It includes, for example, repeated unsupported and irrelevant assertions that a particular witness has substance abuse problems. We again rebuke appellants. This lack of professionalism does less than nothing to advance their cause.


author: MCFADDEN, Judge.

text:
    A14A1218.
    JURDEN v. HSBC MORTGAGE CORPORATION.
    (765 SE2d 440)
   MCFADDEN, Judge.

Jerry Jurden appeals from the trial court’s dismissal of his complaint against HSBC Mortgage Corporation for failure to state a claim. Because Jurden can prove no set of facts in support of the complaint that would entitle him to relief, we affirm.

1. Failure to state a claim.

Jurden contends that the trial court erred in granting HSBC’s motion to dismiss the complaint for failure to state a claim under OCGA § 9-11-12 (b) (6). We disagree.

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor. In other words, a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014) (citations and punctuation omitted).

In this case, Jurden filed a pro se complaint against HSBC Mortgage Corporation, setting forth claims of wrongful foreclosure, fraud and unjust enrichment. The claims arise out of HSBC’s nonjudicial foreclosure sale of certain real property that secured Janie Bernice Crowe’s residential mortgage loan. As alleged in Jurden’s complaint, Crowe purchased the tract of real property in December 2006. In January 2007, Jurden purchased a house and moved it onto the property, where he and Crowe lived together. In March 2008, Crowe obtained a $363,750 loan and secured it with the property by signing a security deed in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”). After Crowe defaulted on the loan, HSBC initiated foreclosure proceedings pursuant to MERS’ transfer of its interests in the security deed to HSBC.

Jurden’s claims are premised on challenges to the propriety of the loan agreement between Crowe and the bank, including the use of the house on the property as part of the security, as well as challenges to the propriety of the transfer of the security deed interest from MERS to HSBC. However, with regard to the house located on the land, under Georgia law, real estate means “[a] 11 lands and the buildings thereon[.]” OCGA § 44-1-2 (a) (1). See also Barrett v. Britt, 319 Ga. App. 118, 121 (736 SE2d 148) (2012) (item attached to the land becomes a part thereof and would ordinarily pass in a conveyance of the land).

Moreover, Jurden has no standing to challenge either the loan agreement or the assignment of the security interest to HSBC because, as plainly averred in his complaint, he was not a party to either contract. See Montgomery v. Bank of America, 321 Ga. App. 343, 346 (2) (740 SE2d 434) (2013) (plaintiff lacked standing to contest validity of assignment of note and security deed because assignment was a “contract between MERS and [loan servicing company]”); Breus v. McGriff, 202 Ga. App. 216 (1) (413 SE2d 538) (1991) (“Appellants are strangers to the assignment contract between appellee and [the bank] and thus have no standing to challenge its validity.”). Nor has Jurden alleged that he was a third-party beneficiary under either the loan agreement or the assignment contract. See Marvel Enterprises v. World Wrestling Federation Entertainment, 271 Ga. App. 607, 614-615 (5) (610 SE2d 583) (2005) (in order for a third party to have standing to enforce such a contract it must clearly appear from the contract that it was intended for his benefit). On the contrary, it is clear from the averments in the pleadings that neither contract was intended to benefit Jurden. Accordingly, the trial court did not err in dismissing the complaint because even when taken as true, the allegations in the complaint establish that Jurden “lacks standing to pursue [his] claims.” Wylie v. Denton, 323 Ga. App. 161, 168 (1) (746 SE2d 689) (2013) (citation and punctuation omitted).

2. Discovery stay.

Jurden’s further claim that the trial court erred in staying discovery pending the outcome of the motion to dismiss is without merit. As a general matter, a court’s authority to order a stay in any proceedings before it

is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.

Decided November 14, 2014

Reconsideration denied December 4, 2014

Christopher C. McClurg, for appellant.

Burr & Forman, Amanda E. Wilson, for appellee.

Francis v. Reynolds, 215 Ga. App. 418 (450 SE2d 876) (1994) (citations and punctuation omitted). Indeed, OCGA § 9-11-12 (j) mandates a stay of discovery when a motion to dismiss is filed before or at the time of filing an answer. While the motion in this case was filed after the answer was filed, and thus no stay was mandated, OCGA § 9-11-12 (j) demonstrates that the law contemplates the propriety of a stay of discovery when a motion to dismiss is filed. Further, Jurden has shown no harm from the stay since discovery had no bearing on a dismissal ruling. Under the circumstances, we find no abuse of discretion by the trial court. See Settles Bridge Farm v. Masino, 318 Ga. App. 576, 581 (4) (734 SE2d 456) (2012) (trial court has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed absent a clear abuse of that discretion).

Judgment affirmed.

Andrews, P. J., concurs. Phipps, C. J., concurs in judgment only.


author: Miller, Judge.

text:
    A14A1369.
    RIGBY et al. v. BOATRIGHT et al.
    (767 SE2d 783)
   Miller, Judge.

The Satilla Rural Electric Membership Corporation (“Satilla”) disqualified Jerry E. Boatright from running for the Board of Directors (“the Board”) seat representing Bacon County. Thereafter, both in his individual capacity and derivatively on behalf of Satilla’s members, Boatright sued Satilla and the individual Board members, as well as members of the Board’s Credentials and Elections Committee (“the Elections Committee”) for injunctive and declaratory relief and for a writ of mandamus to place his name on the ballot for the Board election. The parties stipulated to certain facts and, after a hearing, the trial court granted Boatright a writ of mandamus, finding that the decision to disqualify him was arbitrary and capricious. Five members of the Board, Julian Rigby, Thomas J. Morris, Herman Sellers, Scott Day, and Fred C. Harrison, Sr. (collectively “Appellants”) appealed, and the Supreme Court of Georgia reversed, holding that mandamus relief was not available to enforce the purely private right that Boatright asserted. Rigby v. Boatright, 294 Ga. 253, 254-256 (751 SE2d 851) (2013). Accordingly, the Supreme Court of Georgia remanded the case to the trial court for consideration of Boatright’s requests for injunctive relief. Id. at 256.

On remand, the trial court reiterated that the decision to disqualify Boatright was arbitrary and capricious, granted Boatright’s requests for declaratory and injunctive relief, enjoined the Board from declaring Boatright disqualified and again ordered the Board to place Boatright on the ballot. Appellants appeal again to this Court, contending that (1) the trial court erred in finding that the decision to disqualify Boatright was arbitrary and capricious and (2) the trial court erred in granting Boatright injunctive relief. For the reasons that follow, we affirm.

[A] trial court has broad discretion to fashion equitable remedies based upon the exigencies of each case, and we have held that a trial court should craft an injunction in a manner that is the least oppressive to the defendant while still protecting the valuable rights of the plaintiff. Moreover, where there are conflicts in the evidence and a trial court, in reviewing those conflicts, grants an injunction, an appellate court will not disturb the injunction the trial court has fashioned unless there was a manifest abuse of discretion.

(Footnotes omitted.) Goode v. Mountain Lake Investments, 271 Ga. 722, 724 (2) (524 SE2d 229) (1999). Moreover, in an action for declaratory and injunctive relief, the trial court’s findings of fact shall not be set aside unless clearly erroneous. See State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 503 (4) (556 SE2d 114) (2001).

Satilla is a nonprofit public service electric cooperative serving members in South Georgia, including Bacon County, where Boatright and Rigby reside. The Board is made up of Satilla’s members, and each Board member represents a separate district served by Satilla. Satilla’s Bylaws, Art. Ill, § 5.03; Art. IV, §§ 1-2. Candidates for Board membership are nominated by a committee made up of Satilla members who are appointed by the Board. Satilla’s Bylaws, Art. IV, § 3. Additional candidates may also be nominated by collecting the signatures of 150 Satilla members who live in the district that the candidate seeks to represent. Id. Petitions for nomination must be submitted at least 90 days prior to the election. Satilla’s Bylaws, Art. IV, § 3. The Board also appoints the Elections Committee, made up of Satilla members who are not currently Board members or members of the nominating committee. Satilla’s Bylaws, Art. IV, § 8.

Under Satilla’s bylaws, “[n]o person shall be eligible to become or remain a Board Member of [Satilla] unless . . . he/she is in no way employed by or financially interested in a competing enterprise, a business selling electric energy, or a business from which [Satilla] is presently contracting with for services or supplies.” Satilla’s Bylaws, Art. IV, § 2. See Rigby, supra, 294 Ga. at 253. Board members must also be members of Satilla; have their principal residence in the district they seek to represent; and be age 18 or older. Satilla’s Bylaws, Art. IV, § 2. There are no other requirements for Board membership.

On May 29, 2012, Boatright, who is a member of Satilla, timely submitted a petition to the Elections Committee nominating him as an additional candidate for the October 2, 2012 election to the Board for the seat representing Bacon County. Rigby, supra, 294 Ga. at 253. Rigby held the Bacon County seat and was running for re-election.

On June 13, 2012, Rigby objected to Boatright’s qualifications to be a member of the Board, based upon Boatright’s financial interest in Pike Electric, LLC (“Pike”). See Rigby, supra, 294 Ga. at 253. “Pike is, and has been for some years, a contractor of Satilla[ ]. In 2010, Boatright retired from long-term employment with Pike and, as of May 29, 2012, held Pike stock and a 401(k) account through Pike.” Rigby, supra, 294 Ga. at 253.

According to Satilla’s bylaws, Art. IV, § 8, it is the responsibility of the Elections Committee to

establish or approve... any ballot or other voting,... to rule upon all other questions that may arise relating to . . . the election of directors (including but not limited to the validity of petitions of nomination or the qualifications of candidates and the regularity of the nomination and election of directors), and to pass upon any protest or objection filed with respect to any election .... The [Elections] Committee’s decision (as reflected by a majority of those actually present and voting) on all matters covered by this Section shall be final.

Before the Elections Committee met with regard to Boatright’s petition, Satilla’s attorney gave the Elections Committee a written opinion concluding that Boatright’s independently-held retirement plan and ownership of Pike stock did not create a financial conflict of interest disqualifying Boatright from serving on the Board. Additionally, Boatright sold his Pike stock and converted his Pike retirement account before the meeting. See Rigby, supra, 294 Ga. at 253. Nevertheless, citing the financial interest provision of the bylaws, the Elections Committee formally ruled on June 21, 2012, that Boatright was not qualified to serve on the Board. Rigby, supra, 294 Ga. at 253.

Thereafter, on June 28, 2012, Boatright filed what the parties stipulate was a second petition for nomination as a candidate. See Rigby, supra, 294 Ga. at 253. By a vote of 4-3, the Elections Committee declined to meet to address Boatright’s second petition and considered its earlier decision regarding Boatright’s prior petition to be final. See id. Boatright then brought this action.

1. Appellants contend that the trial court erred in granting relief to Boatright because the Elections Committee’s decision to disqualify Boatright was made in good faith and with honest judgment. We disagree.

“Satilla’s bylaws are construed according to principles of contract law.” Rigby, supra, 294 Ga. at 256. Where, as here, it is undisputed that the Elections Committee had discretion to determine whether Boatright was qualified for candidacy, the “sole question” for the trial court in reviewing the Elections Committee’s decision is whether the decision was made in good faith and involved the exercise of honest judgment. See Planning Technologies v. Korman, 290 Ga. App. 715, 718 (660 SE2d 39) (2008).

“The requirement that a party exercise good faith and honest judgment, even where the contractual language grants the party discretion, arises from the implied duty of good faith and fair dealing imposed upon virtually every contract under Georgia law.” (Citation omitted.) Capital Health Mgmt. Group v. Hartley, 301 Ga. App. 812, 817 (1) (689 SE2d 107) (2009). “The concept of good faith encompasses basic notions of fairness and commercial reasonableness.” (Citation and punctuation omitted.) Id. Even where a Board’s decision is final, the Board’s discretion is not absolute and the Board’s decisions are still subject to the standards of good faith and honest judgment. See Planning Technologies, supra, 290 Ga. App. at 719.

A decision that is made for arbitrary or capricious reasons, is based on an improper pecuniary motive, or is predicated on dishonesty or illegality is not made in good faith. See Planning Technologies, supra, 290 Ga.App. at 720. Furthermore, “a decision can be so grossly erroneous, as where there is a total absence of any factual evidence to support it, that it creates an inference of bad faith and dishonest judgment.” Id. Whether a party exercises good faith and honest judgment in the performance of a contract is a question of fact for the trial court. See Capital Health Mgmt., supra, 301 Ga.App. at 817-818 (1); see also Hunting Aircraft v. Peachtree City Airport Auth., 281 Ga. App. 450, 452 (1) (636 SE2d 139) (2006).

Under these standards, by finding that the Elections Committee’s decision was arbitrary and capricious, the trial court necessarily found that the Elections Committee’s decision was not made in good faith. Planning Technologies, supra, 290 Ga.App. at 720. As set forth above, we review the trial court’s factual findings under the clearly erroneous test, and we will not disturb the trial court’s findings of fact if there is any evidence to sustain them. See Patel v. Patel, 285 Ga. 391, 392 (1) (a) (677 SE2d 114) (2009).

Appellants argue that the Elections Committee acted reasonably by using the date of Boatright’s initial application to determine whether he was disqualified due to a financial conflict of interest and by refusing to consider Boatright’s second petition, since the bylaws provide that the decisions of the Elections Committee are final. Satilla’s Bylaws, Art. IV, § 8. Regardless of the Elections Committee’s discretion to decide which date to use, their decision to disqualify Boatright could not be arbitrary and capricious. See Planning Technologies, supra, 290 Ga.App. at 719-720.

Contrary to Appellant’s argument, some evidence supports the trial court’s finding that the Elections Committee’s decision was arbitrary and capricious. First, at the time of the Elections Committee’s vote, it is undisputed that Boatright no longer held any stock in Pike or any financial interest in Pike’s retirement plan and thus was a qualified candidate. Second, even before Boatright sold his Pike stock and converted his retirement account, the Board’s own attorney recommended that Boatright be deemed qualified on the ground that stock ownership and a retirement account do not pose a significant financial conflict of interest. Rigby, supra, 294 Ga. at 253. Third, Boatright was subjected to disparate treatment in that Rigby’s qualifications to serve on the Board were never challenged despite the fact that he owned an interest in a business that sold propane to Satilla during some part of his 15 years as a Board member. Finally, the Elections Committee refused to consider Boatright’s second petition, even though that petition was timely filed more than 90 days before the election, and, as of the date of the second application, Boatright had undisputably divested himself of any financial interest in Pike and was a qualified candidate. On this record, the trial court’s factual finding that the decision to disqualify Boatright was arbitrary and capricious is supported by some evidence and must be upheld. See Patel, supra, 285 Ga. at 392 (1) (a).

2. Appellants contend that the trial court’s order that the Board place Boatright on the ballot is improper mandamus relief by another name. We discern no error.

After holding that Boatright was not entitled to a writ of mandamus, the Supreme Court noted that “this does not mean that Boatright is left without a remedy. Rather, the right he seeks to enforce may be addressed by a court of equity.” Rigby, supra, 294 Ga. at 256. On remand, the trial court prohibited the Board from declaring Boatright disqualified and ordered the Board to place Boatright on the ballot. Rather than challenging the validity of the prohibitive injunction, Appellants argue that the trial court’s order requiring the Board to place Boatright on the ballot is improper mandamus relief. In transferring the instant case to this Court, the Supreme Court of Georgia concluded that the “trial court’s grant of permanent injunc-tive relief was ancillary to its legal determination” that Boatright was qualified to serve as a candidate and that no request for mandamus relief remained following its opinion in Rigby, supra.

As set forth above, trial courts have broad discretion to fashion equitable remedies, and an appellate court will not disturb a trial court’s injunction absent a manifest abuse of discretion. See Goode, supra, 271 Ga. at 724 (2).

Appellants contend that the only affirmative relief requested by Boatright was a writ of mandamus and make much of the fact that the trial court’s orders before and after remand contained identical language ordering the Board to place Boatright on the ballot. In his complaint, Boatright requested a writ of mandamus requiring the Elections Committee to place his name on the ballot. Boatright also requested injunctive relief prohibiting the Elections Committee from holding an election until it issued a ballot with Boatright’s name on it. In its initial order, issued on November 5, 2012, the trial court granted “Plaintiff’s prayers for declaratory judgment and a Writ of Mandamus” and ordered the Board to issue a ballot including Boatright as a candidate for the Board seat representing Bacon County. In the December 3, 2013 order issued on remand, the trial court granted “Plaintiff’s prayers for Declaratory Judgment and Permanent Injunction,” enjoined the Board from declaring Boatright disqualified and again ordered the Board to place Boatright on the ballot.

The mere fact that a court order is mandatory, rather than prohibitive, does not transform injunctive relief into a writ of mandamus, and an injunction is not void merely because it is mandatory in nature. See Taylor v. Evans, 232 Ga. 685, 686 (1) (208 SE2d 492) (1974) (upholding injunction requiring party to remove a grave marker); Atlanta Country Club v. Sanders, 230 Ga. 146, 148 (195 SE2d 893) (1973) (upholding injunction requiring property owner to mark road and keep it locked). Moreover, a trial court may issue a mandatory injunction when mandamus relief is not available. See Bregman v. Orkin Exterminating Co., 213 Ga. 561, 562 (100 SE2d 267) (1957) (where plaintiff seeks to compel corporation to allow her to inspect the corporate books, plaintiff’s remedy lies in equitable relief, not writ of mandamus).

“A mandatory injunction is an extraordinary remedy, one of the most powerful a court can issue.” Mabry, supra, 274 Ga. at 510 (5). No exercise of power is more delicate or requires “greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, than the issuing of an injunction.” Id. Injunctions must be “crafted in a manner that is the least oppressive to the defendant while still protecting the valuable rights of the plaintiff.” Id.

Nevertheless, where, as here, the trial court has declared that a party is obligated to perform certain contractual duties, the trial court does not abuse its discretion in issuing a mandatory injunction. See Mabry, supra, 274 Ga. at 509-510 (5) (where insurance company had duty to evaluate damage claims for diminution in value, trial court could issue permanent injunction requiring insurance company to do so). Here, the trial court’s mandatory injunction merely requires the Board to follow its own bylaws and place Boatright, a qualified candidate for election, on the ballot. Requiring the directors of a corporation to abide by the corporation’s bylaws cannot be considered oppressive. See Gwin v. Thunderbird Motor Hotels, 216 Ga. 652, 658 (2) (119 SE2d 14) (1961) (directors of a corporation are presumed to have knowledge of the corporate bylaws and are bound by the bylaws). Accordingly, the trial court did not abuse its broad discretion in fashioning the injunction.

Decided November 12, 2014

Reconsideration denied December 4, 2014.

Futch Law Firm, Kenneth E. Futch, J. Patrick Brooks, for appellants.

Roberts Tate, James L. Roberts TV, for appellees.

In sum, the trial court’s finding that the Elections Committee’s decision was arbitrary and capricious is supported by the evidence in the record and the trial court did not abuse its discretion in ordering injunctive relief.

Judgment affirmed.

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

       The remaining members of the Board, as well as the members of the Credentials and Elections Committee and Satilla itself, did not appeal the trial court’s decision.

       Appellants initially filed this appeal in the Supreme Court of Georgia, which transferred the case to this Court.

       Rigby, whose nephew was a longtime Satilla employee, also objected to Boatright’s qualification on the ground that Boatright’s son was a manager at Satilla and had worked there for more than 20 years. Satilla’s nepotism policy prohibits the hiring of relatives (including children, nieces and nephews) of current employees and Board members. On appeal, however, Appellants have abandoned the claim that Boatright was disqualified under the nepotism policy.

       Satilla Bylaws, Art. IV, § 8.

       “Mandamus is an extraordinary remedy to compel a public officer to perform a required duty when there is no other adequate legal remedy.” (Citation omitted.) James v. Montgomery County Bd. of Ed., 283 Ga. 517 (661 SE2d 535) (2008); see also Rigby, supra, 294 Ga. at 254; OCGA § 9-6-20. Additionally,
      [a] private person may by mandamus enforce the performance by a corporation of a public duty as to matters in which he has a special interest. However, by its explicit terms, the duty sought to be enforced must be a public one. Generally, in the context of mandamus, a public duty is one that affects the general public rather than a private individual.
      (Citation omitted.) Rigby, supra, 294 Ga. at 255; see also OCGA § 9-6-23.


author: Branch, Judge.

text:
    A14A1424.
    ADVANCED TECHNOLOGY SERVICES, INC. v. KM DOCS, LLC et al.
    (767 SE2d 821)
   Branch, Judge.

Advanced Technology Services, Inc. (“ATS”), filed suit against two former employees and the company the two men formed, asserting several claims arising out of allegations that the defendants used ATS trade secrets and confidential information improperly in their new business venture. The defendants removed the case to federal district court, which granted summary judgment in their favor on ATS’s claim of copyright infringement and remanded the remaining claims to the Superior Court of Fulton County. The superior court granted summary judgment to the defendants on the remaining claims, and ATS appeals. For the reasons that follow, we affirm.

On appeal from the grant of summary judgment, appellate courts “conduct [ ] a de novo review of the evidence to determine whether there is 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.” Shekhawat v. Jones, 293 Ga. 468, 469 (746 SE2d 89) (2013); State of Ga. Dept. of Corrections v. Developers Sur. and Indem. Co., 324 Ga.App. 371, 372 (750 SE2d 697) (2013).

Construed in favor of ATS, the record shows that ATS, which now has five employees, develops and sells one product, a document management program called OptiDoc, for which it has approximately forty-four customers. Miles Waldron began employment with ATS in February 2001 as the lead software developer, and in July 2003, he entered into a “Trade Secrets and Confidential Information Agreement” (the “Trade Secrets Agreement”). In the Trade Secrets Agreement, Waldron agreed that all software developed by ATS employees, with certain limitations not relevant here, is an ATS trade secret, constitutes confidential information, and is owned by ATS. He agreed not to remove any such information from ATS without permission, not to utilize it to create software for his own or a third party’s use without permission and a license, and not to reveal it to a third party without permission. Waldron also agreed to return all ATS software and related information upon termination and to submit his computers and other devices to ATS for inspection in this regard.

While at ATS, Waldron personally rewrote most of the modules of ATS’s OptiDoc system to create a new version. To do so, he kept the source code for OptiDoc on his work computer, but he sometimes worked on the source code at home using his personal computers and a computer he built for the purpose of performing ATS work at home. An ATS employee averred that Waldron built the computer after November 2009, and that he would bring it to work, “hook it up and use it during the day, and take it home each day at the end of the day.”

In March 2009, ATS hired Harvey Heath to work in sales. Later in 2009, Waldron, at Heath’s request, enhanced the OptiDoc software to allow a person to continue working without having to log in repeatedly; the parties referred to this enhancement as a “secret” or “pop-up viewer” module. ATS alleges that Waldron did not tender this software to ATS when he resigned. The allegation is based on one sentence in an e-mail from Waldron to ATS’s president in which Waldron said, “There is already a top secret built in way to make our viewer pop up without forcing a loginQ] I did this for [Heath] some time ago.”

In June 2009, while both men were employed by ATS, Heath reserved a web domain in the name of “www.kmdocs.com.” In September, the two men established an entity named KM Docs, LLC, in order to take advantage of a business opportunity that Heath had learned about and conveyed to Waldron. During that month, without informing ATS or seeking permission, Waldron wrote a custom software “bridge” application on behalf of KM Docs for a document management system company; Waldron admitted that the customer might have been a competitor of ATS. Heath and Waldron split the $5,000 paid by the customer for the work. Waldron used his personal computers to do the work, but not the custom computer that he used for ATS work. Waldron denied using any ATS software to develop the bridge application.

There is also evidence that beginning in September 2009, Wal-dron repeatedly told an ATS co-worker, “I have something in the works that I am working on. I can’t say anything else, but you will be taken care of.” And after that time, Waldron was uncharacteristically unproductive in his work for ATS, and he increasingly asked to work from home.

Waldron resigned his employment at ATS on June 1, 2010. He testified that he deleted the ATS source code from his personal computer shortly thereafter, although the exact date is uncertain. After resigning, Waldron continued to perform some additional work for ATS over the course of the following few weeks. In that regard, Waldron requested that he again be allowed access to the ATS source code, which was granted for that purpose. Heath, who never signed any written agreements related to his employment at ATS, resigned on July 7, 2010.

Within a day or two after Heath’s resignation, Waldron and Heath launched a website for KM Docs, and Waldron began programming “docUnity,” a document management system, and docDNA, a related module, for KM Docs. Waldron admits that the docUnity software provides some similar functions as ATS’s OptiDoc software. Waldron avers that he did not start programming docUnity until after July 7, 2010, when Heath left ATS. But a docUnity website states that docUnity was formed in 2009 and that since its inception, Waldron “has been focusing on the development of [the] docUnity [document management system] from a strategic and technical design perspective.” KM Docs/docUnity made its first sale of the docUnity system in June 2012.

Meanwhile, in August 2010, Maureen Mitchell, the president and owner of ATS, who had become aware of Waldron and Heath’s early efforts to create a new system, wrote to the defendants and alleged that they had breached their duties to ATS, their contracts with ATS, and Georgia trade secret law. Mitchell asserted, “It is not possible that you or Miles Waldron could have written competing software that does not infringe on our rights in less than thirty days. It is more likely that your software product(s) are derived from our code, raising infringement issues and criminal theft issues.”

About 13 months later, ATS filed a verified complaint asserting claims of misappropriation of trade secrets and confidential information, conversion of the OptiDoc source code, tortious interference by Heath with Waldron’s contract, tortious interference with ATS’s customer contracts, breach of Waldron’s employment contracts, fraud, RICO, breach of fiduciary duty, theft of corporate opportunity, conspiracy, and copyright infringement. ATS also sought an injunction, punitive damages, and attorney fees.

Shortly thereafter, the defendants removed the case to federal court based on that court’s original jurisdiction of the copyright claim. The federal district court granted the defendants’ motion for summary judgment on ATS’s claim that the defendants infringed on ATS’s copyright for OptiDoc. In so doing, the federal court found that ATS (1) failed to present direct evidence that the defendants copied the OptiDoc source code and (2) failed to demonstrate indirect evidence of copying because it did not show that OptiDoc and docUnity were substantially similar. As a part of these findings, the federal court held that Mitchell’s testimony that the products were practically identical in function and appearance was insufficient because no one from ATS had examined the docUnity source code nor used a working version of the product and ATS had not retained an expert to testify as to the similarity of the two products.

Following remand to superior court, the defendants moved for summary judgment on ATS’s remaining claims. Waldron and Heath attached affidavits in which they averred that they did not consider the September 2009 bridge program to be related to or competitive with ATS; they did not perform any work or planning in connection with KM Docs between September 2009 and July 2010; all work performed on docUnity and docDNA occurred after July 12, 2010; OptiDoc and docUnity/docDNA are functionally and technologically dissimilar; version 1 of docUnity/docDNA was not completed until late spring 2012; Waldron did not use ATS source code in the creation of docUnity/docDNA; and neither man stole, converted, or misappropriated ATS source code or any other ATS asset. ATS did not file any affidavits or other evidence in response to the defendants’ motion. Following a hearing, the trial court granted the motion for summary judgment without explanation.

In its initial appellate brief, ATS alleges error with regard to six of its claims: (1) Waldron breached the Trade Secrets Agreement in various ways concerning the “viewer” module, the “bridge” software, and OptiDoc, as well as by failing to return the “viewer” module and OptiDoc source codes upon termination; (2) Waldron misappropriated portions of OptiDoc source code and design for use at KM Docs; (3) Waldron misappropriated ATS confidential information, including the “viewer” module source code, the “bridge” software, and the OptiDoc source code; (4) Waldron misappropriated and used ATS trade secrets, including the OptiDoc source code; (5) Heath tortiously interfered with Waldron’s Trade Secret Agreement by inducing Wal-dron to program the “bridge” software and to begin writing docUnity while still employed at ATS; and (6) Heath and Waldron conspired to breach Waldron’s Trade Secret Agreement and misappropriate ATS software in all of the above ways. Accordingly, ATS’s appeals of all other counts upon which summary judgment was granted are either waived or abandoned. See Toberman v. Larose Ltd. Partnership, 281 Ga. App. 775, 779 (1), n. 1 (637 SE2d 158) (2006).

1. We first address the defendants’ argument that ATS is precluded by the doctrine of collateral estoppel from raising some or all of these arguments as a result of the federal court’s decision on ATS’s claim of copyright infringement. See generally Meagher v. Quick, 264 Ga. App. 639, 645 (2) (594 SE2d 182) (2003) (“where issues common to both federal and state actions are ruled upon in the earlier federal proceeding,... collateral estoppel operates to prevent re-litigation of such issues in the subsequent state action”) (citation omitted).

The federal court addressing ATS’s copyright claim based its decision on one element of a claim of copyright infringement: “whether the defendant, as a factual matter, copied portions of the plaintiff’s program.” On that point, ATS was required to present direct evidence of copying or inferences from indirect evidence “demonstrating that the defendant had access to the copyrighted work and that there are probative similarities between the allegedly infringing work and the copyrighted work.” MiTek Holdings v. Arce Engineering Co., 89 F3d 1548, 1554 (III) (A) (11th Cir. 1996). The federal court held that ATS wholly failed to present any direct evidence of copying because ATS had failed to examine the defendants’ source code. The court further held that ATS failed to present indirect evidence of probative similarities between OptiDoc and docUnity because none of ATS’s witnesses had ever seen an actual working version of docUnity, ATS had not retained an expert to testify as to the similarity of the two products, ATS’s reliance upon one “screen shot” of docUnity was not sufficiently probative, and one of ATS’s witnesses averred that docUnity did not have much of the functionality that OptiDoc has.

The doctrine of collateral estoppel “precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies.” Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545, 546 (629 SE2d 260) (2006) (citation and punctuation omitted). The issue also must have been necessary to the prior decision. Boozer v. Higdon, 252 Ga. 276, 278 (1) (313 SE2d 100) (1984). If these conditions are met, the issue “may not be re-litigated, even as part of a different claim.” Karan, 280 Ga. at 546 (citation and punctuation omitted). We therefore must address whether ATS’s remaining claims are dependent on the issues actually litigated and adjudicated by the federal court that were necessary to the determination of the copyright claim.

The federal court did not address any issues with regard to the “viewer” module, the “bridge” software, failure to return ATS software to ATS upon termination, or the allegation that Waldron wrote some portion of the docUnity/docDNA software while employed by ATS. ATS’s claims on these issues, therefore, are not defeated by the doctrine of collateral estoppel. Consequently, ATS’s claims for tor-tious interference and conspiracy, which include some allegations related to “viewer” module or the “bridge” software, also are not defeated by collateral estoppel.

What the federal court did decide was that ATS failed to present direct evidence that Waldron copied OptiDoc source code when programming docUnity or evidence to show probative functional or design similarities between OptiDoc and docUnity. The pleadings and the appellate briefs show that ATS’s claims of breach of the Trade Secrets Agreement with regard to OptiDoc, misappropriation of the OptiDoc source code, misappropriation of confidential information with regard to OptiDoc, and misappropriation of ATS trade secrets with regard to OptiDoc all turn on whether Waldron copied OptiDoc source code directly or whether there are probative functional or design similarities between OptiDoc and docUnity. Accordingly, ATS is collaterally estopped from pursuing these claims with regard to OptiDoc in the superior court. See Hinely v. Alliance Metals, Inc. of Atlanta, 285 Ga. App. 230, 237 (3) (b) (645 SE2d 584) (2007) (state court allegations of constructive discharge were barred by collateral estoppel “[b]ecause the federal district court... expressly ruled that [plaintiff] failed to present sufficient evidence to support a claim of constructive discharge”) (footnote omitted); Stark v. Gout. Accounting Solutions, (Case No. 2:07-cv-755, decided Dec. 9, 2009) (S.D. Ohio 2009) (state court’s finding that defendants did not misappropriate source code or related software collaterally estopped plaintiff from asserting copyright infringement claim).

In the remainder of this opinion, therefore, we address claims related to the “viewer” module, the “bridge” software, failure to return ATS software to ATS upon termination, and the allegation that Waldron wrote some portion of the docUnity/docDNA software while employed by ATS. The following divisions are limited to these topics.

2. ATS contends the trial court erred with regard to its claim of breach of the Trade Secrets Agreement because there is an issue of fact as to whether Waldron (1) wrote and sold the “bridge” software while he was an ATS employee; (2) wrote the “viewer” software while an ATS employee yet failed to deliver the software to ATS; (3) wrote part of doc Unity/docDNA while employed by ATS; and (4) failed to return the OptiDoc software/source code when he resigned.

“The cardinal rule of [contract] construction is to ascertain the intention of the parties.” OCGA § 13-2-3. “[W]hen the terms of a written contract are clear and unambiguous, the court is to look to the contract alone to find the parties’ intent.” Park ’N Go of Ga. v. United States Fidelity & Guar. Co., 266 Ga. 787, 791 (471 SE2d 500) (1996) (citation omitted). Ambiguities in a contract will be construed against the drafter — here, ATS. See generally L & B Constr. Co. v. Ragan Enterprises, 267 Ga. 809, 811 (482 SE2d 279) (1997).

ATS’s claims depend on the provisions of the Trade Secrets Agreement signed by Waldron (not Heath) that provide that all software developed by ATS employees, with certain limitations not relevant here, is an ATS trade secret, constitutes confidential information, is owned by ATS, may not be removed without permission, and may not be utilized to create software for a third party’s use without permission and a license. The specific provisions, however, raise an ambiguity as to whether these terms apply to all software that an employee develops on his personal time whether as a hobby or as a separate business activity.

The relevant portions of the Trade Secrets Agreement provide as follows:

The undersigned hereby agrees and acknowledges that [ATS] owns all software owned by ATS, its employees, officers, directors and contractors including OptiDoc. . . .
The undersigned agrees and acknowledges all software developed by ATS or under development by ATS or its employees, including but not limited to Opti[D]oc, including source code,... (hereinafter the “Software”) and which is not generally known to the public or within industries or trades is a trade secret under Georgia law. . . .
The undersigned further acknowledges that ATS employees are not permitted to remove any portion of the Software including source code, . . . from the Offices of ATS without written permission of an officer of ATS. Nor may any employee utilize any Software to develop, write, design or otherwise create any other software package for their own personal use or for the use of a third party without the specific written permission and license from ATS.

(Emphasis supplied.) These sections of the agreement suggest that the only software regulated by the agreement is software made by the employee in the scope of his employment for use of ATS. For example, the third quoted paragraph prohibits removing ATS software from the ATS offices. This provision suggests that the agreement regulates only software developed at those offices. The same paragraph prohibits an employee from utilizing ATS software to create “other software package[s] for their own personal use.” This clause suggests that an employee is allowed to create other software, as long as the employee does not utilize ATS software in doing so. In addition, the agreement does not expressly state that its conditions apply to all software that an employee develops on his personal time whether as a hobby or as a separate business activity. And the agreement does not prohibit moonlighting.

At most, we find the agreement to be ambiguous about whether software developed by an employee outside of ATS offices and outside of the scope of his employment should be considered to be owned by ATS. Indeed, Waldron testified that he developed other software at home for which ATS has made no claim against him. Construing the Trade Secrets Agreement against ATS, we therefore conclude that it did not prohibit Waldron from writing and selling the “bridge” software or from beginning to write docUnity (which, as has already been established, was not copied from OptiDoc) while still employed by ATS as was alleged. See, e.g., Dept. of Community Health v. Pruitt Corp., 295 Ga. App. 629, 633 (673 SE2d 36) (2009) (construingchange of ownership provision in Medicaid-reimbursement agreement and policy manual included therein against the drafter to determine meaning of a certain provision); Lewis v. Uselton, 202 Ga. App. 875, 879-880 (3) (416 SE2d 94) (1992) (construing provision in contract most strongly against attorney who drafted it). Accordingly, the trial court did not err by granting summary judgment on these claims.

The agreement also provides that Waldron had to return all ATS software and related information upon termination and to submit his computers and other devices to ATS for inspection in this regard. ATS claims that Waldron wrote the “viewer” module that provides functionality in connection with OptiDoc but that he failed to give it to ATS when he resigned. But Waldron gave direct testimony that several months before resigning from ATS, he created the module to add a function to OptiDoc, that it is a part of the OptiDoc source code, that he documented the change, and that the module is, in fact, a part of every ATS customer’s copy of OptiDoc and was when he resigned from ATS. ATS has not presented any evidence to refute Waldron’s testimony. The trial court therefore correctly granted summary judgment on this claim.

ATS also contends the trial court erred because there is an issue of fact as to whether Waldron returned the OptiDoc source code when he resigned as required by the Trade Secrets Agreement. ATS points to an alleged discrepancy in Waldron’s deposition testimony as to when he deleted the source code from his personal computer and to the fact that Waldron asked to use the source code while he was performing contract work for ATS in the first several weeks after formally resigning. But in the two items of testimony cited by ATS, Waldron testified that he erased the source code from all personal computers (1) “upon resigning”; and (2) on or about July 8, 2010, just over five weeks after his formal resignation. ATS’s argument that this discrepancy means that this Court should ignore all of Waldron’s testimony that he deleted the source code is without merit. If the exact date that Waldron deleted the source code had some relevance, there might be an issue of fact. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986) (if a party relies on his or her own contradictory testimony in opposition to summary judgment, a court must “construe the contradictory testimony against him”). But ATS has not made any argument nor otherwise shown that the precise date that Waldron deleted the source code has any relevance. And ATS has not contravened Wal-dron’s direct testimony that he deleted all OptiDoc source code from his personal computers. The trial court therefore correctly granted summary judgment on this issue.

3. ATS’s remaining enumerations of error also fail. ATS’s second enumeration of error regarding the claim that Waldron misappropriated portions of OptiDoc for use in his new company is controlled adversely to ATS by Division 1 above. ATS’s third enumeration of error regarding the claim that Waldron misappropriated confidential information is controlled adversely to ATS by Division 1 with regard to allegations related to OptiDoc. As for allegations related to the “viewer” module and the “bridge” software, ATS has failed to present any evidence to show that Waldron used confidential information in developing or creating this software. This claim, therefore, must fail. In its fourth enumeration of error, ATS claims that Heath tortiously interfered with the ATS-Waldron Trade Secrets Agreement and that the trial court erred by granting summary judgment on this claim. But as shown above, ATS has failed to show any violation by Waldron of the Trade Secrets Agreement, and therefore this claim must fail. ATS’s fifth enumeration of error regarding the claim that Waldron misappropriated and used ATS trade secrets at KM Docs is controlled adversely to ATS by Division 1. Finally, for all the above reasons, ATS’s claim that Heath and Waldron conspired to breach Waldron’s Trade Secrets Agreement and misappropriate ATS software is also subject to summary judgment.

Judgment affirmed.

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

Decided November 21, 2014

Reconsiderations denied December 4, 2014.

William W. White, for appellant.

Rachelson & White, Ira L. Rachelson, for appellees.

       During the course of this appeal we denied ATS’s motion to supplement the record with documents that were not before the trial court at the time of its decision. See generally Demetrios v. State, 246 Ga. App. 506, 510 (3), n. 14 (541 SE2d 83) (2000) (“we do not accept assertions of fact or evidence which were not before the trial court”) (citation and punctuation omitted). The affidavits of August Donald Mischke dated February 6, 2013 and February 25, 2013, therefore, are not properly before us. We have excluded allegations of fact supported only by these affidavits.

       Waldron also entered into a “Non-Solicitation, Non-Disclosure, and Non-Competition Agreement” with ATS. But ATS did not raise any arguments concerning this agreement in its initial appellate brief, and this Court will not consider arguments raised for the first time in a reply brief. Vann v. Finley, 313 Ga. App. 153, 154, n. 2 (721 SE2d 156) (2011); Hooks v. Humphries, 303 Ga. App. 264, 269 (4), n. 8 (692 SE2d 845) (2010).

       KM Docs initially was owned by Heath and Waldron. A company named docUnity, LLC later purchased the assets of KM Docs. Waldron and Heath each own 35 percent of docUnity and an investor owns 30 percent.

       ATS did not, however, seek a hearing on injunctive relief, and later admitted that it now seeks only damages.

       To maintain a claim for copyright infringement, a plaintiff must prove “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist

        Publications v. Rural Tel. Svc. Co., 499 U. S. 340, 361 (III) (111 SCt 1282, 113 LE2d 358) (1991) (citation omitted). The second prong involves two separate questions:
      1) whether the defendant, as a factual matter, copied portions of the plaintiff’s program; and 2) whether, as a mixed issue of fact and law, those elements of the program that have been copied are protected expression and of such importance to the copied work that the appropriation is actionable.

        MiTek Holdings v. Arce Engineering Co., 89 F3d 1548, 1554 (III) (A) (11th Cir. 1996) (citation and punctuation omitted).

       This Court has held that
      [t]he elements of tortious interference with contractual relations, business relations, or potential business relations are: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant’s tor-tious conduct proximately caused damage to the plaintiff.

        Blakey v. Victory Equip. Sales, 259 Ga. App. 34, 38 (2) (d) (576 SE2d 288) (2002) (citations omitted).