author: Dillard, Judge.

text:
    A14A1539.
    LOCKWOOD v. FEDERAL DEPOSIT INSURANCE CORPORATION.
    (767 SE2d 829)
   Dillard, Judge.

Joseph K. Lockwood appeals the trial court’s grant of summary judgment to the Federal Deposit Insurance Corporation (“FDIC”), as receiver for Silverton Bank, N.A., on the FDIC’s action on a promissory note. On appeal, Lockwood contends that the trial court erred in granting the FDIC’s motion for summary judgment when (1) the FDIC failed to provide notice in the manner delineated by OCGA § 13-1-11 (a) (3); (2) there was a genuine issue of material fact as to the amount owed upon the note; and (3) discovery was still pending. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the nonmovant (Lockwood), the record reflects that on September 14, 2007, Lockwood executed a promissory note in the principal amount of $120,000 with the Bankers Bank, N.A., which later changed its name to Silverton Bank, N.A. Silverton Bank subsequently went into receivership with the FDIC acting as receiver.

On March 7, 2013, the FDIC sent Lockwood a notice of default and demand for immediate payment upon the promissory note, demanding payment of $83,053.08 it claimed remained due on the note, in addition to accruing interest. The demand also purported to give notice of the FDIC’s intent to enforce the provisions of the note requiring Lockwood to pay all costs, including attorney fees, if full payment was not made within 10 days.

When payment was not forthcoming, the FDIC filed its verified complaint for breach of promissory note on April 1, 2013. The FDIC then filed a motion for summary judgment in September 2013. This motion was supported by an affidavit from one of the FDIC’s asset managers, who averred that $80,036.09 remained unpaid on the principal balance and that unpaid interest had accrued up to $3,304.36 as of March 28, 2013, and would continue to accrue at a rate of $13.0624 per day. Additionally, the asset manager averred that late charges were owed in the amount of $200 and that the note provided for the recovery of 15 percent of the principal and interest as attorney fees. In support of these averments, a loan-statement and loan-history sheet were attached as exhibits.

The trial court granted the FDIC’s motion for summary judgment in November 2013, awarding judgment in the amount of $83,340.45 plus per diem interest, attorney fees and expenses of 15 percent of the principal and interest, court costs, and post-judgment interest. This appeal by Lockwood follows.

1. First, Lockwood contends that the trial court erred in awarding attorney fees when the FDIC failed to provide correct notice under OCGA § 13-1-11 (a) (3). We disagree.

OCGA § 13-1-11 provides, in relevant part, that

[t]he holder of the note or other evidence of indebtedness or his or her attorney at law shall, after maturity of the obligation, notify in writing the maker, endorser, or party sought to be held on said obligation that the provisions relative to payment of attorney’s fees in addition to the principal and interest shall be enforced and that such maker, endorser, or party sought to be held on said obligation has ten days from the receipt of such notice to pay the principal and interest without the attorney’s fees.

And as we recently emphasized, compliance with the notice requirement of OCGA § 13-1-11 (a) (3) is a “mandatory condition precedent” to the recovery of attorney fees under this statute.

Here, the FDIC’s March 7,2013 letter to Lockwood informed him of his default upon the promissory note and demanded payment of the remaining amount due, as well as instructed him that it was giving him notice under OCGA § 13-1-11 (a) (3) that if he “fail[ed] to pay the [indebtedness within ten (10) days of [the] letter,” it would initiate legal action and seek all available remedies, including attorney fees and expenses.

Lockwood contends on appeal that the trial court erred in awarding attorney fees when this notice was deficient by its failure to specify that payment was due within ten days of receipt of the letter. And while he is correct that the March 2013 letter failed to comply with the dictates of OCGA § 13-1-11 (a) (3), the trial court did not err in awarding attorney fees because the FDIC provided sufficient notice under the statute in its later-filed complaint. Indeed, in addition to referencing the notice-of-default letter, the FDIC’s complaint separately provided notice (1) of its intention to “enforce the provisions of the Note that require [Lockwood] to pay all costs, including attorney fees, in addition to all other amounts due,” and (2) that if he “fails to pay all principal and interest owing on the Note within ten (10) days of receipt of this Complaint, he will be obligated for the payment of attorney fees in accordance with Georgia law.”

Thus, notwithstanding the deficient notice in the FDIC’s notice-of-default letter, the separate notice in the complaint satisfies the dictates of OCGA § 13-1-11 (a) (3). It is well settled that notice under this statute “may be given any time between maturity of the obligation and ten days prior to judgment.” As such, when a pleading, setting up a claim on a note or other evidence of indebtedness which authorizes recovery of attorney fees, “alleges that notice of intent to seek attorney fees has been given and that notice is thereby given, and the notice otherwise conforms to the requirements of [OCGA § 13-1-11 (a) (3)], such notice is sufficient to authorize an award of attorney fees.” Accordingly, the trial court did not err in awarding attorney fees to the FDIC.

2. Next, Lockwood argues that the trial court erred in awarding $83,340.45 to the FDIC when there was a genuine issue of material fact as to the amount owed upon the note. Again, we disagree.

Although Lockwood does not dispute that a sum is owed upon the note, he takes issue with the amount awarded by the trial court and points to alleged inconsistencies in the documents attached to the asset manager’s affidavit when the attached exhibits showed “unap-plied credits” and “unapplied payments” with no given explanation. Additionally, Lockwood asserts that the asset manager had no personal knowledge as to the attached evidence.

(a) First, as to the issue of personal knowledge, in his affidavit, the asset manager set out his role and personal access to and knowledge of the records that were transmitted to the FDIC when Silverton Bank was placed into receivership, which included the payment records attached to his affidavit as an exhibit, and which records he averred were “kept and maintained in the course of regularly and necessarily conducted business activity.” And we have consistently rejected similar arguments as to an alleged lack of personal knowledge when records have been transferred between businesses. This line of precedent applies here, too, despite the fact that the motion for summary judgment was filed, considered, and ruled upon after the provisions of Georgia’s new Evidence Code went into effect. Accordingly, Lockwood’s argument as to a lack of personal knowledge by the asset manager is without merit.

(b) Second, as to Lockwood’s argument that the payment records contain inconsistencies giving rise to a genuine issue of material fact as to the amount owed, this contention likewise lacks merit. Indeed, the payment-history records reflect payments and late charges, as well as a total of $80,036.09 owed upon the remaining principal balance as of September 19, 2013. Nevertheless, Lockwood argued before the trial court and argues again before this Court that the payment-history records contain inconsistencies as to the amount owed upon the principal because the records include “unapplied payments” and other “unapplied credits” with no explanation as to why these payments and credits did not apply to the principal balance.

It is well established that, in an action on a promissory note, the plaintiff has the burden of proving that the “defendant is indebted to him and in a definite and correct amount.” Here, the FDIC presented the payment-history records showing a definite amount outstanding on the principal balance and also submitted an affidavit from the asset manager authenticating the records. And after the FDIC produced this evidence, Lockwood was not at liberty to rest upon his pleadings, but was instead required to point to specific evidence giving rise to a triable issue concerning his indebtedness. As we have previously explained, mere conclusions are “not sufficient to withstand specific facts,” and a party opposing a motion for summary judgment, when the moving party has presented evidence of the necessary certitude, “must, in his opposing affidavits, set forth specific facts showing a genuine issue to be decided.”

In the case sub judice, Lockwood’s speculations as to the potential impact of the otherwise nondescript “unapplied payments” and “unapplied credits” to his indebtedness were not sufficient to overcome the FDIC’s prima facie case that Lockwood owed a “definite and certain amount” as reflected in the outstanding principal balance. Indeed, Lockwood did not submit any documentary evidence — for example, copies of endorsed checks — of payments he made that had not already been credited to the principal balance. Accordingly, the trial court did not err in awarding the FDIC with the $80,036.09 that its evidence showed remained outstanding on the principal balance.

3. Lastly, Lockwood argues that the trial court erred in granting summary judgment when discovery was still pending between the parties. Once again, we disagree.

Under OCGA § 9-11-56,

[sjhould it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.

And here, Lockwood argues that the trial court erred by granting summary judgment to the FDIC when its discovery responses were not due until after the deadline for his response to the motion for summary judgment.

The record reflects that when the FDIC commenced this action in April 2013, it concurrently commenced discovery by serving Lockwood with requests for admissions. However, Lockwood did not serve the FDIC with written discovery requests until one week after it filed its motion for summary judgment in September 2013. The responses to Lockwood’s requests were due November 7, 2013, but the FDIC responded on November 1, 2013. Nevertheless, Lockwood filed his response to the motion for summary judgment that same day and did not thereafter supplement his response. In his response, Lockwood asserted that outstanding responses to his discovery requests rendered him “unable to put forward his complete defense” to the motion and, additionally, he averred that “because discovery is ongoing, the balance of principal remaining on the Note is unknown.” The trial court ruled upon the motion on November 13, 2013.

First, regardless of whether or not Lockwood received responses to his discovery requests prior to filing his response to the motion for summary judgment, he made no attempt to rely upon his own documentation as to payments made and allegedly uncredited toward the principal balance. Additionally, in requesting a continuance, Lockwood did not “show that if the continuance were granted, what relevant and material evidence would be produced in opposition to the motion for summary judgment.” Moreover, despite his assertion that discovery requests remained outstanding, the record reflects that the FDIC served Lockwood with its responses the same morning he filed his opposition to the motion for summary judgment. Despite this fact, Lockwood took no further action to supplement his response. Under these facts, the trial court did not abuse its discretion in granting summary judgment to the FDIC.

Decided December 30, 2014.

Miles Patterson Hansford Tallant, Kevin J. Tallant, Molly M. Anderson, for appellant.

Schulten, Ward & Turner, Kevin L. Ward, Andrea L. Pawlak, for appellee.

Accordingly, for all of the foregoing reasons, we affirm the trial court’s grant of summary judgment to the FDIC.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

        See Angel Bus. Catalysts, LLC v. Bankofthe Ozarks, 316 Ga. App. 253, 254 (728 SE2d 854) (2012); accord Kensington Partners v. Beal Bank Nevada, 311 Ga. App. 196, 196 (715 SE2d 491) (2011).

       Thus, the total amount of money owed upon the note at that time, with interest and late charges, was $83,540.45.

       Neither Lockwood nor the FDIC makes any contention regarding the fact that the trial court awarded $83,340.45 as opposed to the $83,540.45 that the FDIC’s asset manager averred was owed, and so we do not address this discrepancy.

       OCGA § 13-1-11 (a) (3) (emphasis supplied).

        Best v. CB Decatur Court, LLC, 324 Ga. App. 403, 409 (2) (b) (750 SE2d 716) (2013); accord Core LaVista v. Camming, 308 Ga. App. 791, 798 (2) (709 SE2d 336) (2011).

        See Adair Realty & Loan Co. v. Williams Bros. Lumber Co., 112 Ga. App. 16, 16 (143 SE2d 577) (1965) (“[T]he notice given by the holder of the note to the maker is deficient in that the alleged notice did not contain the statutory requirement informing the maker that she had ten days from the receipt of the notice to pay the principal and interest of the note without obligating herself for the payment of attorney’s fees .... The notice here while otherwise substantially complying with the requirements of the statute, merely advised the maker that, if she did not make arrangements to pay the note in full within ten days from the date of the notice, rather than from the date of its receipt by her, plaintiff would claim attorney’s fees provided for in the note.”); see also Gen. Elec. Credit Corp. v. Brooks, 242 Ga. 109, 114 (249 SE2d 596) (1978) (“[OCGA § 13-1-11] is clearly intended to require the creditor to give the debtor an opportunity to meet his obligation without incurring additional expenses in the nature of attorney fees. This opportunity is given by notification to a debtor that he will have 10 days from the receipt of notice in order to pay principal and interest, thus avoiding liability for attorney fees.” (emphasis supplied)).

        See Long v. Hogan, 289 Ga. App. 347, 347 (656 SE2d 868) (2008) (noting that the “complaint gave the ten-day notice required by OCGA § 13-1-11 (a) (3)”); Upshaw v. S. Wholesale Flooring Co., 197 Ga. App. 511, 513 (4) (398 SE2d 749) (1990) (holding that notice in complaint was sufficient to satisfy OCGA § 13-1-11); Shier v. Price, 152 Ga. App. 593, 595 (2) (263 SE2d 466) (1979) (“Notice in accordance with [OCGA § 13-1-11] that the provision for 10% attorney fees in the note would be enforced if the principal and interest owing thereon were not received within ten days was included in the complaint. This is a proper notice.”); see also New House Prods., Inc. v. Commercial Plastics & Supply Corp., 141 Ga. App. 199, 200 (3) (233 SE2d 45) (1977).

       Emphasis supplied.

        See New House Prods., 141 Ga. App. at 200 (3) (holding that, when appellant denied receiving notice, the later-filed complaint provided sufficient notice); see also Long, 289 Ga. App. at 347; Upshaw, 197 Ga. App. at 513 (4); Shier, 152 Ga. App. at 595 (2); cf. Best, 324 Ga. App. at 409-10 (2) (b) (holding that a complaint does not satisfy the dictates of OCGA § 13-1-11 (a) (3) when it merely recites that notice for attorney fees under the statute has been given to and received by the defendant more than 10 days before the filing of the complaint, and that, as a result of this notice, plaintiff is entitled to such fees, because this type of recital does not provide an “opportunity to avoid paying attorney fees by timely curing the default”); Core LaVista, 308 Ga. App. at 798-99 (2) (holding that neither the demand letters nor the complaint satisfied the notice requirement of OCGA § 13-1-11 (a) (3) because none of them advised defendant that he had an opportunity to avoid paying attorney fees by timely curing the default).

        New House Prods., 141 Ga. App. at 200 (3); see also Turner v. Bank of Zebulon, 128 Ga. App. 404, 406 (3) (196 SE2d 668) (1973) (“Failure to give notice before commencement of the action does not preclude the recovery of attorneys’ fees.” (punctuation omitted)); One In All Corp. v. Fulton Nat’l Bank, 108 Ga. App. 142, 144 (2) (132 SE2d 116) (1963) (“We are of the opinion that failure to give notice before commencement of the action does not preclude the recovery of attorneys’ fees . . . .”).

        New House Prods., 141 Ga. App. at 200 (3).

        See Termnet Merck. Servs., Inc. v. Phillips, 277 Ga. 342, 344-45 (1) (588 SE2d 745) (2003) (“[T]he trial court is without discretion to deny fees under [OCGA §] 13-1-11 when all the conditions of that statute are unquestionably satisfied.”).

        See Angel Bus. Catalysts, LLC v. Bank of the Ozarks, 316 Ga. App. 253, 255-56 (1) (728 SE2d 854) (2012) (holding that, when “routine, factual documents made by one business are transmitted and delivered to a second business and there entered in the regular course of business of the receiving business, such documents are admissible” as business records); Jenkins v. Sallie Mae, Inc., 286 Ga. App. 502, 503 (2) (649 SE2d 802) (2007) (holding that documents of predecessor were properly admitted as business records of successor business);
        Boyd v. Calvary Portfolio Servs., Inc., 285 Ga. App. 390, 391 (1) (646 SE2d 496) (2007) (holding that documents of predecessor were properly admitted as business records of successor business).

        See Ware v. Multibank 2009-1 RES-ADC Venture, LLC, 327 Ga. App. 245, 248-49 (2) (758 SE2d 145) (2014) (holding that, under new Evidence Code, affiant sufficiently authenticated records that had been transferred between businesses).

        Bogart v. Wisc. Inst. for Torah Study, 321 Ga. App. 492, 495 (3) (739 SE2d 465) (2013) (punctuation omitted); accord White Stores v. Washington, 135 Ga. App. 67, 67 (217 SE2d 391) (1975).

        Cf. Myers v. First Citizens Bank & Trust Co., 324 Ga. App. 293, 296 (2) (750 SE2d 378) (2013) (vacating and remanding on question of amount owed when hank “provided no evidence regarding the amounts, if any, that the [appellants] had paid toward the notes” and when affiant “did not explain how such damages were calculated, and the only documents attached to his affidavit as exhibits were copies of the promissory notes”).

       OCGA § 9-11-56 (e) (“When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, hut his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”); see also Bogart, 321 Ga. App. at 495 (3); Trebor Corp. v. Nutmeg Indus., 208 Ga. App. 697, 697-98 (1) (431 SE2d 402) (1993).

        Bogart, 321 Ga. App. at 495 (3) (punctuation omitted); accord Trebor Corp., 208 Ga. App. at 697 (1).

        Bogart, 321 Ga. App. at 495 (3) (punctuation omitted); accord Trebor Corp., 208 Ga. App. at 697-98 (1).

        See Int’l Furniture Distribs., Inc. v. Lifschultz Fast Freight, Inc., 176 Ga. App. 102, 102 (2) (335 SE2d 628) (1985) (“Appellant’s second enumeration, that the grant of summary judgment to appellee was error, is supported by two arguments. The first is that appellant showed by an affidavit that it had credits due it from appellee for damages to the material transported by appellee. However, the affidavit on which appellant relies sets forth no facts to support the conclusion in the affidavit that appellant was entitled to certain credits. Such conclusory showings will not prevent the grant of summary judgment.”); see also Bogart, 321 Ga. App. at 495 (3); Trebor Corp., 208 Ga. App. at 697-98 (1).

        Cf. Yalanzon v. Citibank (South Dakota), N.A., 169 Ga. App. 961, 962 (315 SE2d 677) (1984) (“[Appellant] asserted in his answer that his liability would not exceed the approximate amount of $300.00, and he submitted affidavits alleging that he had not been credited with various payments made on the account. Attached to one of these affidavits were seven checks totalling in excess of $600.00, all endorsed by Citibank and dated between November 1980 and April 1981. Citibank has not submitted any detailed statement of the account from which it might be determined whether these payments were properly credited to [appellant].”).

       OCGA § 9-11-56 (f).

       The FDIC responded to requests for admissions, continuing interrogatories, and continuing requests for production of documents.

        See supra Division 2 (b).

        Gilco Invest., Inc. v. Stafford Cordele, LLC, 267 Ga. App. 167, 169 (1) (598 SE2d 889) (2004); see also Nations Bank, N.A. v. SouthTrust Bank of Ga., N.A., 226 Ga. App. 888, 896 (2) (487 SE2d 701) (1997) (noting that OCGA § 9-11-56 (f) requires an appellant “to set forth the reasons for a continuance and . .. what relevant and material evidence would he produced in opposition to the motion for summary judgment”).

        See OCGA § 9-11-56 (c) (“The adverse party prior to the day of hearing may serve opposing affidavits.”).

        See Sims v. First Acceptance Ins. Co. of Ga., Inc., 322 Ga. App. 361, 367 (4) (745 SE2d 306) (2013) (“The granting or denial of a motion under OCGA § 9-11-56 (f) lies in the sound discretion of the trial judge.” (punctuation omitted)); JarAllah v. Schoen, 243 Ga.App. 402, 406 (531 SE2d 778) (2000) (holding that trial court did not abuse its discretion in ruling upon summary judgment motion instead of granting continuance when appellant “did not demonstrate that a continuance would lead to the discovery of relevant evidence”).


source: Caselaw Access Project

author: MlLLEK, Judge.

license: Public Domain

text:
    A14A1644.
    USMAN v. THE STATE.
    (768 SE2d 110)
   MlLLEK, Judge.

Jordan Usman entered into a nonnegotiated plea of guilty to two counts of child molestation (OCGA § 16-6-4 (a) (1)). Usman appeals from his conviction, contending that the trial court erred in failing to properly advise him of his right to withdraw his plea. For the reasons that follow, we affirm.

A defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea, and thus, the merits of [Usman’s] appeal can be addressed only if the issues he seeks to raise can be resolved by facts appearing in the record, including the transcript of the guilty plea hearing.

(Citation omitted.) Denova v. State, 268 Ga. App. 16 (601 SE2d 400) (2004).

Usman entered his guilty plea on November 5, 2012. The record shows, and Usman concedes, that he entered a nonnegotiated plea. The Superior Court of Glynn County held a sentencing hearing on January 16, 2013, and the trial court’s judgment was entered that same day. Two days later, the trial court called Usman to court to inform him of his right to appeal his conviction and sentence, which it had failed to do at the previous hearing. The trial court also informed Usman that he had the right to an appellate attorney if he was indigent. The trial court, however, did not inform Usman that he could move to withdraw his guilty plea. Usman was represented by counsel at his plea and sentencing hearings, including at the hearing when the trial court advised Usman of his right to appeal his conviction.

Usman filed a notice of appeal on February 12, 2013. Thereafter, on June 21, 2013, Usman filed a motion in superior court to withdraw his guilty plea, which the trial court denied because Usman filed his motion outside the term of court.

On appeal, Usman contends that the trial court misled him that the appropriate procedure for challenging his convictions was to file a direct appeal rather than a motion to withdraw his guilty plea within the term of court, and he relied on this advice to his detriment because his motion to withdraw was denied since it was filed out of term. We disagree.

OCGA § 17-7-93 (b) provides, in relevant part, that, at any time before judgment is pronounced, the accused person may withdraw the plea of guilty and plead not guilty. A defendant does not have an absolute statutory right, under said Code section, to withdraw a guilty plea, after the trial court’s oral announcement of the sentence.

(Citations and punctuation omitted.) Stevens v. State, 202 Ga. App. 473, 474 (3) (414 SE2d 702) (1992). Moreover, the trial court is only obligated to personally inform the defendant of the right to withdraw his guilty plea before judgment is pronounced if the trial court intends to reject a negotiated plea agreement. Storch v. State, 276 Ga. App. 789, 791-792 (2) (625 SE2d 70) (2005).

In this case, Usman’s plea was nonnegotiated, and as a result, the trial court was not obligated to inform him of his right to withdraw the plea before sentencing. James v. State, 326 Ga. App. 231, 232 (756 SE2d 312) (2014). Usman nevertheless argues that the trial court affirmatively misled him into believing that he could raise an ineffective assistance claim on appeal without first moving to withdraw his guilty plea or developing the record to address the issue. See Lamb v. State, 282 Ga. App. 756, 758 (639 SE2d 641) (2006) (where a defendant has not filed a motion to withdraw his guilty plea raising ineffective assistance as an issue, and the only evidence in the record is the transcript of his guilty plea hearing, the defendant cannot raise ineffective assistance of counsel on direct appeal of his conviction). There is no merit to this argument because the trial court unambiguously advised Usman of his right to appeal his conviction, and it was not obligated to inform him that this right was qualified in light of his guilty plea. See Barlow v. State, 282 Ga. 232, 233 (647 SE2d 46) (2007).

Decided January 7, 2015

James C. Bonner, Jr., Long D. Vo, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

Likewise, there is no merit to Usman’s claim that the trial court advised him that he had to affirmatively request post-conviction counsel. While the trial court advised Usman that the court would appoint appellate counsel “upon appropriate request to do so,” the trial court’s statement, in context, indicated that appellate counsel would be appointed if Usman wished to appeal and showed that he was indigent. See Hawkins v. State, 222 Ga. App. 461, 462 (1) (474 SE2d 666) (1996) (holding that the trial court must appoint counsel for indigent defendants who indicate a desire to appeal). Since the record does not show that the trial court committed error in advising Usman of his appellate rights, we affirm.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.


author: Barnes, Presiding Judge.

text:
    A13A0223.
    GEORGIA DEPARTMENT OF CORRECTIONS v. COUCH.
    (768 SE2d 275)
   Barnes, Presiding Judge.

In Ga. Dept. of Corrections v. Couch, 295 Ga. 469 (759 SE2d 804) (2014) (Couch II), the Supreme Court affirmed our ruling as to Division 1 “albeit under a different rationale,” and reversed our ruling in Division 2 of Ga. Dept. of Corrections v. Couch, 322 Ga. App. 234 (744 SE2d 432) (2013). Accordingly, we vacate Divisions 1 and 2 of our earlier opinion, and adopt the opinion of the Supreme Court with respect to those divisions. Division 3 was not addressed by the Supreme Court and in that circumstance we are required to

(1) read [the Supreme] Court’s opinion within the context of the opinion being reversed; (2) to determine whether any portions of the opinion being reversed were neither addressed nor considered by the Supreme Court; and (3) enter an appropriate disposition with regard to those portions that is consistent with the issues addressed and considered by [the Supreme] Court.

Decided January 12, 2015.

Samuel S. Olens, Attorney General, Robert L. Bunner, Assistant Attorney General, for appellant.

Farah & Farah, Kevin Elwell, Tidwell Law Firm, Thomas G. Tidwell, for appellee.

Shadix v. Carroll County, 274 Ga. 560, 563-564 (1) (554 SE2d 465) (2001). In so doing, we find that to the extent that Division 3 can be interpreted to sustain any award of attorney fees not consistent with the Supreme Court’s decision in Couch II, it too is vacated.

This case is remanded to the trial court for proceedings consistent with the opinion of the Supreme Court.

Judgment vacated and case remanded with direction.

Miller and Ray, JJ., concur.

       In Division 3, this Court concluded that per OCGA § 9-11-68, the trial court was not required to make findings of fact that litigation expenses were reasonable unless the court concluded that the offer was not made in good faith. Couch, 322 Ga. App. at 239 (3).


author: ANDREWS, Presiding Judge.

text:
    A14A2160.
    MJL PROPERTIES, LLC et al. v. COMMUNITY & SOUTHERN BANK.
    (768 SE2d 111)
   ANDREWS, Presiding Judge.

Community & Southern Bank (“CSB”) commenced an action in the trial court against MJL Properties, LLC (“MJL”), Jerry Haygood, Lisa Marie Haygood, C. Garry Haygood, and Michael Shaw (collectively, “Appellants”) for, among other things, breach of a promissory note and related guaranties. The trial court granted CSB’s motion for summary judgment, and Appellants now appeal, arguing that they did not receive proper notice of the hearing on CSB’s motion for summary judgment and that the guaranty executed by Garry Hay-good was not supported by consideration. For the reasons that follow, we affirm.

“On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law.” (Citation omitted.) Golden Atlanta Site Dev. v. Nahai, 299 Ga. App. 646, 646 (1) (683 SE2d 166) (2009). So viewed, the record shows that MJL entered into a commercial promissory note (the “Note”) with First Cherokee State Bank (“FCSB”) on October 13, 2009 in the principal amount of $858,126.50. On the same date, Jerry Haygood, Lisa Marie Haygood, Garry Haygood, and Michael Shaw entered into unlimited continuing guaranties (the “Guaranties”) with FCSB guaranteeing repayment of the Note. The Note was a renewal of a prior promissory note MJL entered into with FCSB in 2007 in order to obtain funds to purchase 15 acres of real property for industrial development purposes. The Note had a maturity date of September 13, 2012; required monthly payments of $5,844.90; and provided for a fixed interest rate of 6.5 percent. The Note and Guaranties were assigned and transferred to CSB in July 2012 pursuant to a Purchase and Assumption Agreement with the Federal Deposit Insurance Corporation, as receiver of FCSB. By letter from counsel dated January 7, 2013, CSB provided Appellants with written notice of default, declared the indebtedness immediately due and payable, and demanded payment of the same. CSB commenced its action against Appellants several days later. CSB filed its motion for summary judgment on December 16, 2013 and submitted, among other evidence, the affidavit of a CSB vice president attaching a payment record and stating that the amount owed under the Note was $817,643.42 in principal, $80,607.60 in accrued interest, $2,753.47 in late fees, and $134,737.65 in attorney fees and that interest continued to accrue at a rate of $147.63 per day.

Appellants filed a response on January 31, 2014. On the same date, Appellants filed a request for oral argument. On March 10, 2014, the trial court’s deputy clerk signed and entered a rule nisi order that had been prepared by CSB’s counsel setting a hearing on CSB’s motion for summary judgment on April 15, 2014. The deputy clerk had filled in the date, time, and place of the hearing. The certificate of service attached to the rule nisi order indicates that the order was served on March 7, 2014 before the deputy clerk filled in the foregoing information. Apparently unaware of the March 10, 2014 rule nisi order, the trial court issued an order on March 13, 2014 on Appellants’ request for oral argument. The trial court noted that the request for oral argument was not timely under Uniform Superior Court Rule 6.3, which provides that such request must be “filed with the motion for summary judgment or . .. not later than five (5) days after the time for response.” The trial court stated that it would nonetheless “allow oral hearing ... so long as it is scheduled within 30 days” from the date of the order. Thereafter, the trial court’s clerk entered a rule nisi order setting a hearing on the summary judgment motion for June 17, 2014. On April 11, 2014, Appellants filed a motion for continuance of the April 15, 2014 hearing, asserting that the rule nisi order setting a hearing for that date was not served upon Appellants and that they first learned about the hearing by e-mail on April 10, 2014. On the same day, Appellants also filed an affidavit by Garry Haygood, a supplemental brief, and an amended answer.

Counsel for both parties appeared at the hearing on April 15, 2014. Appellants’ counsel advised the court that he was not served with the rule nisi order setting the hearing. The trial court asked, “Well, do you want a hearing or do you not?” Appellants’ counsel replied: “I do want a hearing with proper notice” and then proceeded to present argument. Appellants’ counsel conceded that “none of the facts are in dispute” and that CSB was entitled to judgment against all Appellants except Garry Haygood. Appellants’ counsel argued that Garry Haygood’s guaranty was not supported by consideration.

1. Appellants first argue that we should reverse the trial court’s order granting CSB’s motion for summary judgment because they did not receive timely notice of the April 15, 2014 hearing on the motion for summary judgment. We disagree.

OCGA § 9-11-6 (d) provides: “A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by this chapter or by order of the court.” Service of a notice of hearing is governed by OCGA § 9-11-5 (b), which states that service upon a party or a party’s attorney “shall be made by delivering a copy to the person to be served or by mailing it to the person to be served at the person’s last known address or, if no address is known, by leaving it with the clerk of the court.” CSB does not dispute that the rule nisi order setting a hearing on April 15, 2014 was never properly served on Appellants. Compliance with the notice requirements in OCGA § 9-11-6 (d) is mandatory, Sprint Transport Group v. China Shipping NA Agency, 313 Ga. App. 454, 456 (721 SE2d 659) (2011), and Appellants were entitled to notice of the hearing as contemplated by that statute. We have held, however, that “[a] violation of OCGA § 9-11-6 (d) is not a cause for reversal unless harm is shown.” Scott v. Thompson, 202 Ga. App. 746, 748 (2) (415 SE2d 508) (1992). In the specific circumstances presented here, Appellants cannot establish the requisite harm.

While they were not properly served with the rule nisi order setting the April 15, 2014 hearing, Appellants learned of the hearing on April 10, 2014. A lack of notice thus did not prevent Appellants’ counsel from preparing for or appearing at the April 15 hearing, nor is there any evidence that Appellants were deprived of their right under OCGA § 9-11-6 (d) to serve affidavits opposing CSB’s motion as late as one day prior to the hearing. Compare Operation Rescue v. City of Atlanta, 259 Ga. 676, 678 (386 SE2d 126) (1989) (late notice of hearing on motion for injunctive relief deprived defendants of right to file opposing affidavits up to one day before hearing); Saturday Enterprises v. Citizens Bank & Trust of West Ga., 308 Ga. App. 491, 492 (707 SE2d 875) (2011) (notice of hearing on summary judgment motion was not timely served, and defendants asserted that they first learned of hearing when they received order granting motion); Goodwin v. Richmond, 182 Ga. App. 745, 746 (356 SE2d 888) (1987) (error resulting from lack of notice of summary judgment hearing was not harmless, as the plaintiff did not have notice of cut-off date for filing opposing affidavits). Appellants filed Garry Haygood’s affidavit four days prior to the hearing to support their argument that his guaranty was unenforceable. Appellants’ counsel did not assert at the hearing that lack of notice prevented Appellants from filing any additional affidavits. Rather, he conceded that as to Appellants other than Garry Haygood, the facts were undisputed and CSB was entitled to judgment. Under these facts, we cannot conclude that reversible error resulted from Appellants’ insufficient notice of the April 15, 2014 hearing.

2. Appellants contend that summary judgment should not have been granted on CSB’s claims against Garry Haygood because Garry Haygood’s guaranty was not supported by consideration. This enumeration of error is without merit.

Appellants argue that consideration is lacking because Garry Haygood executed his guaranty “several years after the debt originated and he received nothing in exchange for his promise.” “The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another in consideration of a benefit flowing to the surety or in consideration of credit or indulgence or other benefit given to his principal.” OCGA § 10-7-1. Under OCGA § 10-7-1, “the mere lack of any personal consideration flowing directly to [Garry Haygood] . . . constitute [s] no legal defense to his liability on [his] guaranty.” First Union Nat. Bank of Ga. v. Gurley, 208 Ga. App. 647, 650 (2) (431 SE2d 379) (1993). While Garry Haygood did not execute a guaranty in connection with FCSB’s initial loan to MJL in 2007, the record establishes that he executed a guaranty on the same date the loan was renewed in October 2009, and Appellants do not dispute that FCSB extended further credit to MJL at that time. The trial court properly granted summary judgment for CSB on its claims against Garry Haygood, as his guaranty was supported by consideration. See Rohm & Haas Co. v. Gainesville Paint & Supply Co., 225 Ga. App. 441, 445 (3) (483 SE2d 888) (1997) (extension of additional credit provided consideration for guaranty); compare Helton v. Jasper Banking Co., 311 Ga. App. 363, 366 (715 SE2d 765) (2011) (factual dispute existed as to whether guaranty was signed on the day loan was renewed or thereafter).

Decided January 12, 2015.

Mitchell & Shapiro, William R. Joiner, for appellants.

Busch White Norton, Bryan Busch, Laura H. Mirmelli, for appel-lee.

Judgment affirmed.

McFadden and Ray, JJ., concur.

       Under Uniform Superior Court Rule 6.2, Appellants’ response was due within 30 days of service of CSB’s motion. The trial court’s order states that CSB agreed to an extension of time until January 25, 2014, but no stipulation regarding the extension was filed pursuant to OCGA § 9-11-6 (b).


author: BARNES, Presiding Judge.

text:
    A14A1890.
    PEAK v. THE STATE.
    (768 SE2d 275)
   BARNES, Presiding Judge.

Clarence Peak was indicted for malice murder, felony murder, aggravated assault, and three firearms possession counts. The trial court granted the State an order of nolle prosequi on one of the firearm possession charges, and the jury acquitted Peak of malice murder and felony murder but convicted him of voluntary manslaughter as a lesser included offense and of the other charges. The trial court sentenced him to a total of 25 years to serve in prison. After the trial court denied Peak’s motion for new trial, he filed this appeal, contending that the court erred in allowing the State to admit evidence of Peak’s 1978 convictions for burglary and armed robbery for impeachment purposes. Because the trial court did not make express findings about the prejudicial versus probative value of the evidence, we vacate Peak’s convictions and remand this case to the trial court to reconsider Peak’s motion for new trial on this ground.

Before 2005, a witness or defendant could be impeached by evidence he had been convicted of a crime of “moral turpitude,” no matter how old the conviction was. Harwell v. State, 270 Ga. 765, 768 (2) (512 SE2d 892) (1999). All felonies were considered crimes involving moral turpitude, as were certain misdemeanors. Rehberger v. State, 269 Ga. 576 (1) (502 SE2d 222) (1998).

In 2005, new legislation tracked the language of Rule 609 of the Federal Rules of Evidence, and the new statute differentiated in some respects if the person testifying was a defendant or a witness and based on the age of the conviction. First, for convictions less than ten years old, the statute provided that evidence that a witness or defendant had been convicted of a crime involving dishonesty or making a false statement was admissible regardless of whether the crime was a felony or misdemeanor and required no finding as to whether its probative value outweighed its prejudicial effect. Former OCGA § 24-9-84.1 (a) (3). Second, to admit evidence of a witness’s felony convictions that did not involve dishonesty or false statements, the trial court was required to find that “the probative value of admitting the evidence outweighs its prejudicial effect.” Former OCGA § 24-9-84.1 (a) (1). Third, to admit evidence of a defendant’s felony convictions that did not involve dishonesty or false statements, the trial court was required to find that “the probative value of admitting the evidence substantially outweighs its prejudicial effect.” (Emphasis supplied.) Former OCGA § 24-9-84.1 (a) (2).

The 2005 statute also established a presumption against the admission of evidence of a conviction if more than ten years had elapsed since the date of the conviction or the release of the defendant or witness from the confinement imposed for that conviction, whichever was later. Former OCGA § 24-9-84.1 (b). Regardless of whether the person testifying was the defendant or a witness,

[ujnder subsection (b) of [former OCGA § 24-9-84.1], a conviction more than ten years old may not be used to impeach [the defendant or witness] unless the trial court “determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.”

(Citation and punctuation omitted; emphasis supplied.) Hinton v. State, 280 Ga. 811, 818 (7) (631 SE2d 365) (2006). Additionally, the proponent was required to give sufficient notice to the adverse party to give him a fair opportunity to contest the use of the evidence. Former OCGA § 24-9-84.1 (b). The statute made the requirements for admitting evidence of older convictions “far more rigorous” than the requirements for admitting more recent convictions. Newsome v. State, 289 Ga. App. 590, 593 (2) (657 SE2d 540) (2008). The presumption underlying former OCGA § 24-9-84.1 (b) was that if more than ten years had elapsed from the date of the conviction or the date of release from confinement for the conviction, whichever was later, evidence of the conviction was generally inadmissible. Hinton, 280 Ga. at 819 (7). This presumption was “founded on a legislative perception that the passage of time dissipates the probative value of a prior conviction,” because “(r)eason dictates that the older such a conviction becomes, the less probative value it likely will have.” (Citations and punctuation omitted.) Id.

Even as to convictions that were less than ten years old, a trial court was required to make an express finding on the record that the probative value of the conviction admitted under former OCGA § 24-9-84.1 (a) (2) substantially outweighed its prejudicial effect. Quiroz v. State, 291 Ga. App. 423, 427-428 (4) (662 SE2d 235) (2008). In Quiroz, the trial court simply denied the defendant’s motion in limine concerning his three-year-old felony conviction for cocaine possession, noting the absence of case law construing the statute and concluding, “(I)t would be my intention to allow it in. So the motion in limine is denied.” (Punctuation omitted.) Id. at 428 (4). In reversing the conviction, we held:

To give a sensible and intelligent effect to that part of [former] OCGA § 24-9-84.1 (a) (2) requiring the trial court to balance the probity of a prior felony conviction against its prejudicial effect, we now require that such findings be made expressly. Factors to be considered include the kind of felony involved, the date of the conviction, and the importance of the witness’s credibility. As we have suggested, we cannot determine whether the trial court in this case engaged in any meaningful analysis of the relevant factors or whether the court balanced the probative value against the prejudicial effect to the accused.

(Punctuation and footnotes omitted.) Id. at 428-429 (4). Thus, in considering the probity of convictions that were not more than ten years old, the trial court was required to make an on-the-record finding that the probative value of admitting a prior conviction substantially outweighs its prejudicial effect but was not required to list the factors it considered it making that determination. Clay, 290 Ga. at 836-837 (3) (B).

As noted, the requirements for the admission of evidence of older convictions for impeachment purposes are more stringent. In Clay, which was decided almost two years after the trial in this case, the Supreme Court conceded that it had “provided little guidance to the trial courts regarding what constitutes an abuse of discretion” in determining the admissibility of convictions older than ten years, 290 Ga. at 835 (3) (B), and described five factors relevant to the required balancing:

(1) the nature, i.e., impeachment value of the crime; (2) the time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime, so that admitting the prior conviction does not create an unacceptable risk that the jury will consider it as evidence that the defendant committed the crime for which he is on trial; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue.

Id. at 835 (3) (B).

The Supreme Court held that a trial court must specify the factors on which it relied to allow the admission of evidence of a conviction under former OCGA § 24-9-84.1 (b). Clay, 290 Ga. at 838 (3). It concluded that

a trial court must make an on-the-record finding of the specific facts and circumstances upon which it relies in determining that the probative value of a prior conviction that is more than ten years old substantially outweighs its prejudicial effect before admitting evidence of the conviction for impeachment purposes under [former] OCGA § 24-9-84.1 (b).

Id.

Here, the trial court did not make an on-the-record finding of the specific facts and circumstances on which it relied in determining that the probative value of the 32-year-old convictions substantially outweighed their prejudicial effect, but only found on the record that “despite the fact of their age, I do find that their probative value insofar as impeachment goes outweighs the prejudicial factor to the Defendant, and therefore, will allow those over objection.”

Decided January 14, 2015.

Darel C. Mitchell, for appellant.

Fredric D. Bright, District Attorney, Allison T. Mauldin, Assistant District Attorney, for appellee.

Only two people testified about the events that led to the shooting death of Peak’s son, Peak’s daughter and himself, and their testimony differed greatly. Because the credibility of their testimony was crucial to determining whether Peak was guilty of a crime or a victim of accident, we cannot say that any error in the admission of Peak’s two prior felony convictions was harmless. Accordingly, as recommended by the State, we remand this case to the trial court to reconsider Peak’s motion for a new trial after making an on-the-record finding of the facts and circumstances on which it relied in determining the probative value and prejudicial effect of evidence of Peak’s 1978 convictions, “based on the factors set forth above and any other facts and circumstances the trial court may deem relevant.” Clay, 290 Ga. at 838 (3) (B). See Waye v. State, 326 Ga. App. 202, 206 (3) (756 SE2d 287) (2014).

Judgment vacated and case remanded with direction.

Boggs and Branch, JJ., concur.

       Because this case was triedbefore January 1, 2013, Georgia’s new Evidence Code was not applicable to Peak’s trial. See Ga. L. 2011, pp. 99, 214, § 101. For impeachment by prior convictions under the new Evidence Code, see OCGA § 24-6-609.

       The beginning point of determining whether a conviction is more than ten years old is the date from which a defendant is convicted or released from confinement, whichever is later, and "confinement” does not include probation or parole. Allen v. State, 286 Ga. 392, 396 (2) (687 SE2d 799) (2010). The end point is “the date the witness testifies or the evidence of the prior conviction is introduced.” Clay v. State, 290 Ga. 822, 835 (3) (A) (725 SE2d 260) (2012).


author: MCMILLIAN, Judge.

text:
    A13A1055.
    PETRAKOPOULOS et al. v. VRANAS.
    (768 SE2d 284)
   MCMILLIAN, Judge.

In Petrakopoulos v. Vranas, 325 Ga. App. 332 (750 SE2d 779) (2013), we reversed the trial court’s order appointing a special master and granting preliminary and injunctive relief, and we affirmed in part and reversed in part the trial court’s order denying the motion for summary judgment filed by George A. Petrakopoulos, Sam Mellas, and Alpha Soda Company (“Alpha Soda”). In Petrakopoulos v. Vra-nas, 296 Ga. 48 (764 SE2d 858) (2014), the Supreme Court of Georgia vacated the portion of our opinion addressing Gus Vranas’s purported claim for unjust enrichment because Vranas contended, for the first time, in the appeal before the Supreme Court that “he never raised an unjust enrichment claim against Alpha Soda and that no such claim exists,” id., although he never informed this Court that he did not intend to raise such a claim. Id. at n.l. We therefore vacate Division 3 (c) of our earlier opinion and adopt the opinion of the Supreme Court as our own.

Decided January 15, 2015.

Eric T. Johnson, James C. Watkins, Shingler Lewis, George P. Shingler, for appellants.

Kennon Peebles, Jr., Leon Van Gelderen, for appellee.

Judgment affirmed in part and vacated in part.

Andrews, P. J., and Dillard, J., concur.


author: ELLINGTON, Presiding Judge.

text:
    A14A2110, A15A0079.
    EVANS v. SANGSTER et al. (two cases).
    (768 SE2d 278)
   ELLINGTON, Presiding Judge.

In Case No. A14A2110, Joanna Evans (“Joanna”) appeals from an order of the Superior Court of Crisp County, which entered a judgment affecting two cases that were consolidated below: (1) a petition brought by Connie and Bob Sangster (“the Sangsters”), in which they sought visitation with their biological grandson, Joanna’s minor child, C. S.; and (2) a petition for stepparent adoption brought by Joanna’s husband, Jason Evans (“Jason”), in which the Sangsters intervened. In related claims of error, Joanna contends that the trial court erred in granting the Sangsters visitation with C. S. She also contends that the trial court erred in consolidating the proceedings below, and in issuing an adoption decree that was “subject to” the court’s final decision with respect to grandparent visitation. Finally, she argues that, although the court granted her husband’s petition to adopt, the court erred in entering a decree allowing C. S. to retain his father’s surname.

In Case No. A15A0079, Jason appeals from the final decree of adoption. Jason raises the same claims of error that Joanna raises in her appeal. Because these matters were consolidated by the trial court below and decided based upon the same facts, we consolidate these appeals for the purposes of this opinion. See, e.g., Ray v. Hann, 323 Ga. App. 45 (746 SE2d 600) (2013).

The facts relevant to both appeals are as follows. The Sangsters are the paternal grandparents of the minor child, C. S. C. S. is the son of Joanna and of the Sangsters’ son, Robert Michael Sangster, Jr. (“Michael”). Joanna and Michael divorced on March 25, 2010, about two years after C. S. was bom. The final decree awarded the parties joint legal custody of C. S., with Joanna being the child’s primary physical custodian. The final divorce decree incorporated a separation agreement which provided as follows:

The parties agree that[,] in the event of the husband’s death during the minority of their child, the Husband’s parents shall be entitled to reasonable visitation rights with said child, and that in the event of the Wife’s death during the minority of the child, the Wife’s parents shall be entitled to reasonable visitation rights with the child.

After the divorce, the Sangsters regularly visited with C. S., primarily when he was staying with his father during his custodial visits. On August 27, 2011, Joanna married Jason. Michael died of cancer in July 2012.

Not long after Michael’s death, the Sangsters experienced resistance from Joanna in their efforts to continue regular visitation with C. S. Consequently, they sought the advice of counsel and, with counsel’s assistance, they entered into an agreement with Joanna setting forth a regular visitation schedule. On July 15, 2013, the Sangsters filed a petition seeking court-ordered grandparent visitation, which initiated the underlying suit, Civil Action No. 13V-159. When Joanna was served with the suit, she immediately withheld all visitation with C. S. from the Sangsters. Consequently, the Sangsters amended their complaint to include a contempt count. In her amended answer, Joanna “deniefd] that the [Sangsters] are ‘entitled to remain an integral part of [C. S.’s] life as though his father were still alive[,]’ ” and asserted that any visitation between C. S. and his grandparents was entirely at her discretion.

On July 26, 2013, eleven days after the Sangsters filed their petition for visitation, Jason filed his petition for stepparent adoption, Civil Action No. 13AV-005. The Sangsters moved to intervene in the adoption on August 9, 2013, seeking to preserve their visitation with C. S. The Sangsters also filed an objection to the adoption on September 5, 2013. The court granted the Sangsters’ motion to intervene in the adoption proceeding on February 20, 2014.

On August 26, 2013, the court held a temporary hearing in Case No. 13V-159 on the issue of grandparent visitation. A psychologist who had met with the Sangsters testified that C. S. would be harmed if he was unable to see his grandparents. He opined that grandparent visitation is especially important to a child who has lost a parent. He further testified that C. S. would benefit from regular and predictable visitation with his father’s side of the family. During her hearing testimony, Joanna admitted that the Sangsters do, indeed, have a close bond with C. S. She admitted that she had entered into an agreement with the Sangsters allowing them reasonable visitation. She also admitted withholding that visitation when the Sangsters sought a court-ordered visitation schedule. Joanna explained that what constitutes “reasonable visitation” should be in her sole discretion, that she should be permitted to allow visitation only when it is convenient for her and her new family, and that reasonable visitation could mean no visitation if the circumstances demanded it. The court also took into consideration 64 affidavits submitted by friends and family of the Sangsters, attesting to the Sangsters’ character and to their relationship with C. S. At the conclusion of the hearing, the court ruled from the bench that grandparent visitation would resume immediately and that a written order would follow.

On September 9, 2013, the trial court entered a temporary order in Case No. 13V-159, finding that “[C. S.] had a close relationship and a bond with [the Sangsters,]” and that the Sangsters had maintained that bond after C. S.’s father had died. The trial court also found that Joanna had entered into an agreement allowing the Sangsters visitation, but had withheld visitation when she was served with the instant petition. The court found her in contempt for her wholesale denial of visitation to the Sangsters, which the trial court found to be “inherently unreasonable”; however, the court withheld the imposition of any sanctions. The trial court ordered that the Sangsters were entitled to reasonable visitation with C. S., and set forth a temporary visitation schedule. Joanna did not comply with the court-ordered visitation schedule, and on October 4, 2013, the trial court granted the Sangsters’ motion for contempt, finding that Joanna wilfully and knowingly violated the temporary order and imposed sanctions.

On February 20, 2014, the court consolidated the Sangsters’ petition for grandparent visitation and Jason’s petition for adoption. Thereafter, the parties submitted letter briefs, but it does not appear from the record in either case that any additional evidence was presented to the court. On May 19, 2014, the trial court entered two orders. In one order, styled jointly under Civil Action Nos. 13AV-005 and 13V-159, the court addressed the issue of visitation only. In that order, the court made specific findings of fact, including that C. S. had a close bond with the Sangsters, that there had been a regular pattern of visitation between them, that C. S. would be harmed if visitation were to cease, and that it was in the best interest of C. S. to have scheduled visitation with the Sangsters, especially given the death of his father. In the second order, entered in Civil Action No. 13AV-005 only, the court granted Jason’s petition and issued the decree of adoption. The final decree of adoption provided that “nothing in the foregoing decree shall in any way interfere with visitation rights previously granted by this Court in a Final Order in Case No. 13V-159.” The decree also provided that C. S.’s surname would not be changed to “Evans,” as Jason requested.

Case No. A14A2110

1. Joanna contends that, given her husband’s petition to adopt C. S., the trial court lacked the legal authority to grant the Sangsters’ petition for grandparent visitation. Joanna does not argue that, at the time they filed their petition for visitation, the Sangsters lacked the right to do so pursuant to OCGA § 19-7-3 (b)(1). Nor does she take issue with the court’s factual findings or with the quantum of evidence supporting the award of visitation. Rather, she argues that the trial court should have granted Jason’s petition for adoption first, and, had the court done so, the adoption decree would have had the effect of extinguishing the Sangsters’ right to seek visitation with their grandchild. Because this claim of error pertains to the effect of the adoption decree and because the same argument is raised by Jason, we address it in Case No. A15A0079 below. For the reasons set forth in Division 4, infra, this claim of error is without merit.

2. Joanna also argues that the court gave no deference to her wishes in crafting the visitation schedule contained within the order awarding grandparent visitation. This assertion is not supported by the record. The court’s order indicates that it expressly recognized that Joanna’s “judgment as to the best interest of the child regarding visitation shall be given deference”; however, it “shall not be conclusive[,]” citing OCGA § 19-7-3 (d). The record shows that the court entertained proposed orders from the parties concerning visitation, and that the court’s final order was a compromise between the two. The final order also takes into account those unforseen circumstances that may conflict with court-ordered visitation, allowing Joanna discretion to give priority to C. S.’s educational and medical needs. Joanna also complains that the amount of visitation awarded exceeded the minimum allowed by law, citing OCGA § 19-7-3 (c) (4). That Code section, however, sets no maximum limit on visitation, and Joanna has set forth no argument demonstrating that the court-ordered visitation is unauthorized or excessive. Consequently, we find this claim of error to be without merit.

3. Joanna’s remaining claims of error pertain to the adoption proceeding. Those claims of error are addressed in Jason’s appeal below.

Case No. A15A0079

4. Jason contends that the court should have granted the adoption petition first, and, had the court done so, the Sangsters would have had no standing to object to the adoption or to seek visitation. He also argues that the trial court erred in consolidating the adoption and visitation proceedings below because the cases do not involve common questions. He also argues that no authority exists for permitting a “conditional adoption”; therefore, the court erred in issuing an adoption decree that incorporated the court’s final decision with respect to grandparent visitation. For the following reasons, we disagree.

(a) Jason argues that the trial court was required by OCGA § 19-8-14 (a) to hear the adoption proceeding within 120 days of its filing date, and, had the court complied with that time frame, the adoption decree would have been issued before the Sangsters’ visitation order and would have cut off the Sangsters’ right to seek visitation. The 120-day time frame for hearing adoption petitions applies, however, only to uncontested adoptions. The Sangsters both intervened in the adoption and filed an objection to it specifically to preserve their visitation rights pursuant to OCGA § 19-7-3. Consequently, this argument lacks merit.

(b) Jason argues that OCGA § 9-11-42 (a), the general statute concerning the consolidation of civil actions, required both his and Joanna’s consent to consolidate and a common question of law or fact, and that neither was present in this case. Moreover, he argues that OCGA § 19-8-18, pertaining to adoption hearings and decrees, does not contemplate permitting such consolidation. However, Jason ignores OCGA § 19-7-3 (b) (1), which specifically authorizes the determination of grandparent visitation rights within the context of a stepparent adoption proceeding if the grandparents have been allowed to intervene. The Supreme Court of Georgia has held that

[a] plain reading of OCGA § 19-7-3 (b) offers two avenues by which grandparents may seek court-sanctioned visitation rights to their grandchildren. They can (1) file an original action or they can (2) intervene in an existing court action. Grandparents may intervene in any action where custody of the grandchild is an issue; in the divorce of the parents or a parent; in the termination of rights case of either parent; in the termination of visitation rights of either parent; and in the adoption of the grandchild by a blood relative or by a stepparent.

(Emphasis supplied.) Kunz v. Bailey, 290 Ga. 361, 362 (720 SE2d 634) (2012). And the legislature provided that this right of intervention exists “notwithstanding the provisions of Code Section 19-8-19[,]” which pertains to the effect of an adoption decree. Thus, grandparents may intervene in an action for stepparent adoption even though the subsequent grant of such an adoption would ordinarily have the effect of severing the rights of the grandparents to the grandchild.

When the Sangsters filed their original action for visitation, the adoption petition had not yet been filed. At that time, Jason was not yet the legal parent of C. S.; thus, the exception to OCGA § 19-7-3 (b) (1) did not apply to bar the original action, subjecting it to dismissal. That exception, codified at OCGA § 19-7-3 (b) (2) provides: “This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both parents.” When Jason subsequently filed his petition to adopt, the Sangsters promptly filed a motion to intervene in the adoption to protect their visitation rights. The court granted the Sangsters’ motion to intervene on the ground that it was necessary to do so to preserve the Sangsters’ standing to seek visitation with their grandchild. Contemporaneously with the order granting intervention, the court ordered the cases consolidated.

Because OCGA § 19-7-3 (b) (1) permitted the Sangsters to intervene in the adoption proceeding to protect their visitation with C. S., it was not error to consolidate the cases, as Jason argues. Under the circumstances, the consolidation order was a housekeeping order that allowed the court to consider evidence from both cases without requiring the parties to re-file pleadings, affidavits, hearing transcripts, and other documents of record. Consequently, we find no error in the court’s order consolidating the cases.

(c) Jason argues that the court was not authorized to incorporate the order awarding grandparent visitation into the adoption decree. However, OCGA § 19-7-3 (c) (1) expressly provides that, “upon intervention in an existing proceeding under subsection (b) of this Code section, the court may grant any grandparent of the child reasonable visitation rights,” assuming that the requisite facts supporting the award of visitation exist. An “existing proceeding” under OCGA § 19-7-3 (b) (1) specifically includes an action for stepparent adoption. Kunz v. Bailey, 290 Ga. at 362. Consequently, OCGA § 19-7-3 (c) (1) specifically authorizes a court in a stepparent adoption proceeding to award grandparent visitation as part of the adoption decree.

Contrary to Jason’s argument, OCGA § 19-8-15 does not limit the court’s authority to award visitation granted pursuant to OCGA § 19-7-3. OCGA § 19-8-15 pertains to “objections” that certain relatives of the child sought to be adopted may make to the petition to adopt in those circumstances where both of the child’s parents are either deceased or no longer have parental rights. Further, that Code section gives the court the authority and discretion to continue grandparent visitation after an adoption by a blood relative, demonstrating that such a “conditional” adoption decree is not unique to OCGA § 19-7-3.

Decided January 15, 2015.

W. Edward Meeks, Jr., for appellants.

Andrea B. Seliski, Cotton Law Firm, John C. Cotton, for appel-lees.

5. Jason argues that, despite the court’s broad discretion in the adoption proceeding, it was required to change C. S.’s surname as requested in the petition, citing OCGA § 19-8-18 (b). We agree. Once the court is satisfied that the prerequisites for an adoption exist, “it shall enter a decree of adoption,... naming the child as prayed for in the petition[.]” Id. See OCGA § 19-8-13 (a) (1) (B) (The petition shall set forth “[t]he name by which the child is to be known should the adoption ultimately be completed.”). Consequently, we must vacate the adoption decree and remand the case to the superior court with the instruction that the decree be revised accordingly.

Judgment affirmed in Case No. Al 4A2110. Judgment affirmed in part and vacated in part, and case remanded with direction in Case No. A15A0079.

Phipps, C. J., and McMillian, J., concur.

       OCGA § 19-7-3 (c) (4) provides: “In no case shall the granting of visitation rights to a grandparent interfere with a child’s school or regularly scheduled extracurricular activities. Visitation time awarded to a grandparent shall not be less than 24 hours in any one-month period.”

       “Generally, the adoption of a minor child extinguishes any visitation rights of the child’s former grandparents — OCGA § 19-8-19 (a) (1) provides that a decree of adoption has the effect of severing all former relationships of the adopted child.” Hudgins v. Harding, 313 Ga. App. 613, 614 (722 SE2d 355) (2012). OCGA § 19-8-19 (a) (1) provides:
      Except with respect to a spouse of the petitioner and relatives of the spouse, a decree of adoption terminates all legal relationships between the adopted individual and his relatives, including his parent, so that the adopted individual thereafter is a stranger to his former relatives for all purposes, including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship!.]

       OCGA § 19-8-14 (a) provides, in relevant part that “[i]t is the policy of this state that, in the best interest of the child, uncontested adoption petitions should be heard as soon as possible hut not later than 120 days after the date of filing!.]”

       OCGA § 9-11-42 (a) provides:
      When actions involving a common question of law or fact are pending before the court, if the parties consent, the court may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

       See footnote 1, supra.

       Jason was not the legal parent of C. S. until the court entered an adoption decree declaring him as such. OCGA § 19-8-1 (6) (A). Pursuant to Georgia adoption law, a “ ‘[pjarent’ means either the legal father or the legal mother of the child.” OCGA § 19-8-1 (8).

       See Kunz v. Bailey, 290 Ga. at 362 (“[B]y virtue of the limiting language in the last sentence of OCGA § 19-7-3 (b), grandparents may only file an original action for visitation when the parents are separated and the child is not living with both parents.”).

       OCGA § 19-7-3 (c) (1) directs the court to make specific factual findings concerning whether “the health or welfare of the child would he harmed unless such visitation is granted and if the best interests of the child would he served by such visitation.” OCGA § 19-7-3 (d) provides:
      Notwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased, incapacitated, or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds that such visitation would be in the best interests of the child. The custodial parent’s judgment as to the best interests of the child regarding visitation shall be given deference by the court but shall not be conclusive.

       OCGA § 19-8-15 provides:
      If the child sought to be adopted has no legal father or legal mother living, it shall be the privilege of any person related by blood to the child to file objections to the petition for adoption. A grandparent with visitation rights to a child granted pursuant to Code Section 19-7-3 shall have the privilege to file objections to the petition of adoption if neither parent has any further rights to the child and if the petition for adoption has been filed by a blood relative of the child. The court, after hearing such objections, shall determine, in its discretion, whether or not the same constitute a good reason for denying the petition and the court shall have the authority to grant or continue such visitation rights of the grandparent to the child in the adoption order in the event the adoption by the blood relative is approved by the court.

       In an adoption case, the trial judge sits as trier of fact and is vested with a broad range of legal discretion which will not be controlled by the appellate courts except in cases of plain abuse. Sastre v. McDaniel, 293 Ga. App. 671 (667 SE2d 896) (2008).


author: McMillian, Judge.

text:
    A14A1707.
    KENNESTONE HOSPITAL, INC. v. THE TRAVELERS HOME AND MARINE INSURANCE COMPANY.
    (768 SE2d 519)
   McMillian, Judge.

Appellant Kennestone Hospital, Inc. d/b/a WellStar Kennestone Hospital (“Kennestone”) brought suit against The Travelers Home and Marine Insurance Company (“TH&M”) to enforce its hospital lien for medical treatment and services provided to Wanderson B. Silva following a motor vehicle collision with TH&M’s insured, Deborah M. Chasin. TH&M moved for summary judgment on the basis that Kennestone failed to comply with the procedure set out in OCGA § 44-14-471 for perfecting a medical services lien, and Kennestone filed a cross-motion for summary judgment, contending that it had in fact satisfied all requirements to perfect its lien, and that, in any event, any defects in perfecting its lien were irrelevant in light of the fact that TH&M had actual notice of the lien. Following a hearing, the trial court granted summary judgment to TH&M, and Kennestone filed a timely appeal from that order. As more fully set forth below, we now affirm.

1. We start with the pertinent statutory framework. Pursuant to OCGA § 44-14-470 (b), hospitals and other designated medical providers

. . . shall have a lien for the reasonable charges for hospital . . . care and treatment of an injured person, which lien shall be upon any and all causes of action accruing to the person to whom the care was furnished or to the legal representative of such person on account of injuries giving rise to the causes of action and which necessitated the hospital. . . care[.]

The method for perfecting a hospital or other medical lien is set out in OCGA § 44-14-471 (a), and requires the lienholder to

(1). . . provide written notice to the patient and, to the best of the claimant’s knowledge, the persons, firms, corporations, and their insurers claimed by the injured person or the legal representative of the injured person to be liable for damages arising from the injuries .... Such notice shall be sent to all such persons and entities by first-class and
certified mail or statutory overnight delivery, return receipt requested[.]

(Emphasis supplied.)

After the notice is sent and within the specified time period, the lienholder

(2) [s]hall file in the office of the clerk of the superior court of the county in which the hospital... is located and in the county wherein the patient resides, if a resident of this state, a verified statement setting forth the name and address of the patient as it appears on the records of the hospital...; the name and location of the hospital . . . ; the dates of admission and discharge of the patient therefrom . . . ; and the amount claimed to be due for the hospital . . . medical practice care.

OCGA § 44-14-471 (a).

Lastly, subsection (b) of OCGA § 44-14-471 provides, with certain exceptions discussed in Division 2, that a medical services lien that is not perfected in accordance with paragraphs (1) and (2) of subsection (a) is unenforceable.

Pertinent to our consideration of the issues raised in this appeal, the record shows that Silva was admitted to Kennestone on March 2, 2011, for treatment of serious injuries he sustained in the collision with Chasin, and that he was discharged on March 20, 2011, after having incurred substantial hospital bills. Pursuant to OCGA § 44-14-471, on April 28, 2011, Kennestone sent Silva a notice that it intended to file a hospital lien. Kennestone sent the notice via certified mail, return receipt requested as provided for in the statute, but the return receipt was returned with a notation that it had been “unclaimed.”

Also on that date, Kennestone sent a Notice of Intent via certified mail, return receipt requested, to “Travelers” at “Caller Service 1816, Alpharetta GA 30023.” This notice referenced Silva, the date of the accident and the claim number assigned to Silva’s claim against Chasin, but did not contain any notation identifying TH&M’s insured or the name of the claims adjuster handling the claim. However, the return receipt, which was signed by an unidentified person at the delivery address, contained an additional notation to “Marsha,” and the record shows that TH&M claims adjuster Marsha Corbitt had been assigned to handle Silva’s claim against Chasin. According to Corbitt’s affidavit, which was submitted in support of TH&M’s motion for summary judgment, Chasin was insured by TH&M, not “Travelers,” and Corbitt’s correct mailing address at TH&M was Caller Service #1817, not Caller Service #1816 as stated in Kenne-stone’s Notice of Intent.

Corbitt further averred that she received a Holt demand from Silva’s attorney on May 16, 2011, and that following several days of discussion, Silva’s Holt demand was accepted and his claim was settled for the policy limits. On May 19, 2011, Corbitt sent Silva’s attorney a proposed limited release, which specifically obligated Silva to satisfy any outstanding medical expenses, and Silva executed the release on May 24, 2011 and returned it to Corbitt on May 25, 2011. Corbitt averred that she was not informed that there were any outstanding hospital liens during her discussions with Silva’s attorney, Kennestone’s Notice of Intent had not been uploaded in TH&M’s computer system at the time the release was executed, and prior to receiving a letter from Kennestone’s attorney on January 20, 2012, she had no “documentation or other information” that Kennestone had filed a hospital lien or that Silva had failed to pay his hospital bills as required by the limited release.

Based on this and other evidence of record, the trial court found that Kennestone had failed to perfect its lien as required by OCGA § 44-14-471 (a) (1). In so ruling, the trial court made a specific finding that Kennestone had failed to serve Chasin, as the person alleged to be responsible for the damages arising from the patient’s injuries, as required by OCGA § 44-14-471 (a), and that it had failed to sufficiently designate the proper insurer by sending the notice to “Travelers.” Further, the trial court found that the exception contained in OCGA § 44-14-471 (b) permitting enforcement of an invalid hospital lien in the case of actual notice does not, on its face, apply to insurers, and thus Kennestone’s lien remained unenforceable against TH&M, warranting summary judgment in its favor. Kennestone now challenges these rulings.

Kennestone first challenges the trial court’s finding that it failed to designate the proper insurer in the notice it sent to “Travelers,” arguing that its notice to Travelers was sent to the “best of [its] knowledge,” OCGA § 44-14-471 (a) (1), which is all the statute requires. In support of this contention, Kennestone argues that “Travelers” is routinely used to refer to a variety of insurance entities, including TH&M, under the Travelers “umbrella,” Kennestone has a documented history of sending unchallenged notices to “Travelers” using the same address and call number that it used in the present case, and the address it used is the one listed on the company’s automobile claims center website. Accordingly, Kennestone argues that by invalidating the lien, the trial court has imposed requirements which are not imposed by the statute, namely that the lienholder acquire the full proper name of the insurer prior to sending a notice of intent and that the insurer actually receive the notice.

We agree with Kennestone that the phrase to the “best of the claimant’s knowledge” indicates that a notice of lien need not be perfect in all respects. However, we disagree with Kennestone to the extent that it appears to argue that the lienholder can merely rely on past (and apparently incorrect) practices to garner the information it needs to send the notice. Rather, we find that use of the phrase “best of” to describe the lienholder’s knowledge imposes a requirement on the lienholder to exercise at least some degree of diligence in acquiring the information necessary to send the notice. For instance, in this case it appears that Kennestone knew the claim number and at least the first name of the claims adjuster, yet there is nothing in the record to suggest that Kennestone took any additional steps to verify the name of the insurer or to determine the adjuster’s proper mailing address prior to sending the notice, or that it attempted to ascertain the full name of the claims adjuster and list it on both the return receipt, which listed only her first name, or the notice itself, which did not list her at all. Thus, contrary to Kennestone’s argument on appeal, we do not view the trial court’s order as imposing anything more than the notice be sent to the best of the claimant’s knowledge.

However, it is not necessary in this case for us to decide precisely what level of diligence the statute requires or whether this case presents a question of fact concerning whether Kennestone exercised its best knowledge in sending notice to Travelers. As the trial court also noted, it is undisputed that Kennestone failed to send any notice at all to Chasin, although OCGA § 44-14-471 (a) (1) clearly requires the claimant to send such notice to “the persons . . . claimed by the injured person ... to be liable for damages arising from the injuries.” Accordingly, this failure alone invalidates the lien.

But Kennestone argues that summary judgment should not be granted on this basis, because TH&M did not produce any evidence to show that Kennestone was aware of Chasin’s identity, again pointing to the language in OCGA § 44-14-471 (a) (1) that requires only that the lienholder send notice to the best of its knowledge. However, as TH&M points out, once it demonstrated that Kennestone failed to send notice to the insured, it was incumbent upon Kennestone to show that this failure should not invalidate its lien, and if the reason it did not send the insured notice was because it was unaware of her identity, it should have put forth some competent evidence to support that assertion. E.g., Cowart v. Widener, 287 Ga. 622, 623 (1) (697 SE2d 779) (2010); Lau’s Corp., Inc. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991).

However, Kennestone further posits that it would have been improper to send the insured notice even if it knew her identity because TH&M has never admitted, and indeed has specifically denied, liability on her behalf. To further support this contention, Kennestone points to OCGA § 44-14-476, which provides that a medical provider lienholder does not have an independent right of action to determine the liability for the injuries sustained to its patient. But this argument is clearly specious. OCGA § 44-14-471 (a) (1) requires the lienholder to send notice to the person or entity that the injured person or his or her legal representative claims to be liable for the patient’s damages, and the insurer’s stance on its insured’s liability or responsibility to pay those damages is irrelevant; indeed, it would be safe to assume that in most cases the insurer will take the stance taken by TH&M in this case and either deny, or at least refuse to admit, the liability of its insured. Likewise, the fact that a medical provider lienholder does not have an independent cause of action to determine liability for a patient’s injuries has nothing to do with, and does not eviscerate, the lienholder’s obligation to send notice to the person the injured party claims to be liable for his or her injuries. Accordingly, we affirm the trial court’s finding that Kennestone failed to perfect its lien because it did not serve its Notice of Intent as required by OCGA § 44-14-471 (a) (1).

2. However, relying on OCGA § 44-14-471 (b), Kennestone also argues that even assuming it did not meet the notice requirements contained in OCGA § 44-14-471 (a) (1), its lien was nevertheless enforceable against TH&M because TH&M had actual notice of the lien.

Decided January 16, 2015

Elizabeth S. Richards, Thomas L. Carnes III, for appellant.

Hicks, Casey & Foster, William T. Casey, Jr., Erica L. Morton, for appellee.

In pertinent part, OCGA § 44-14-471 (b) provides as follows:

The failure to perfect such lien by timely complying with the notice and filing provisions of paragraphs (1) and (2) of subsection (a) of this Code section shall invalidate such lien, except as to any person, firm, or corporation liable for the damages, which receives prior to the date of any release, covenant not to bring an action, or settlement, actual notice of a notice and filed statement made under subsection (a) of this Code section, via hand delivery, certified mail, return receipt requested, or statutory overnight delivery with confirmation of receipt.

(Emphasis supplied.) Thus, it is true that, as Kennestone argues, OCGA § 44-14-471 (b) provides an exception to the unenforceability of a lien that has not been properly perfected in accordance with subsection (a). However, as the trial court found, that exception applies only to the person, firm, or corporation liable for the damages, and does not, by its terms, apply to insurers. See Integon Indem. Corp. v. Henry Medical Center, Inc., 235 Ga. App. 97, 100 (1) (b) (508 SE2d 476) (1998) (omission of the insurer in the prior version of OCGA § 44-14-473 which contained the language “against the person, firm, or corporation liable for the damages” meant legislature did not intend to include the insurer); see also OCGA §§ 44-14-473 (amended at Ga. L. 2002, p. 1429, § 4 to add “insurers”); 44-14-471 (a) (1) (requiring notice to the person or entity liable for the damages “and their insurers”). Thus, OCGA § 44-14-471 (b) does not save Kennestone’s improperly perfected lien against TH&M, and the trial court did not err by refusing to enforce the lien against TH&M on this basis. Accordingly, the trial court’s order granting TH&M’s motion for summary judgment is affirmed.

Judgment affirmed.

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

       Silva was riding a motorcycle at the time of the collision and suffered significant injuries.

       We note also that a validly perfected lien may he enforced against a person or entity liable for the damages of the patient or that person or entity’s insurer, despite the existence of a release or covenant not to sue between the patient and tortfeasor as provided in OCGA § 44-14-473.

        Southern Gen. Ins. Co. v. Holt, 262 Ga. 267 (416 SE2d 274) (1992).

       The release listed numerous possible medical provider lienholders, including Kennestone.

       The letter was dated January 18, 2012.

       This showing would seem to be particularly apt to explain how Kennestone might have acquired the name, or at least part of the name, of the insurance carrier, the claim number, and the name, or at least part of the name, of the claims adjuster hut yet allegedly remained unaware of the identity of the insured.


author: DOYLE, Presiding Judge.

text:
    A14A2359.
    HAWKINS v. THE STATE.
    (768 SE2d 523)
   DOYLE, Presiding Judge.

Following the grant of his discretionary application, William Hawkins appeals from the trial court’s order denying his petition for removal from sex offender registration requirements. For the reasons set forth below, we vacate the trial court’s order and remand the case.

The record shows that in September 1991, when Hawkins was 16 years old, he entered a nolo contendere plea to attempted sexual battery in Florida and was sentenced to two years of “community control” followedby ten years of probation. In October 2013, Hawkins filed a petition for removal from sex offender registration requirements. The trial court dismissed the petition for failure to file a civil initiation form pursuant to OCGA § 9-11-3 (b), and on December 31, 2013, it denied Hawkins’s subsequent motion to set aside the dismissal order.

On January 7, 2014, Hawkins filed a second petition for removal from sex offender registration requirements, with accompanying supporting exhibits. Without addressing the merits of the case, the trial court dismissed the petition pursuant to OCGA § 42-1-19 (b) (3), which provides that “[i]f a petition for release is denied, another petition for release shall not be filed within a period of two years from the date of the final order on a previous petition.” Hawkins filed an application for discretionary appeal of this order, and we granted the application.

Decided January 23, 2015.

Pate Law Firm, Page A. Pate, Jess B. Johnson, for appellant.

Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Assistant District Attorney, for appellee.

On appeal, we apply a clearly erroneous standard to the trial court’s factual findings, and a de novo standard to its rulings on questions of law.

Hawkins argues that OCGA § 42-1-19 (b) (3) does not apply in this case, and we agree. OCGA § 42-1-19 (b) (3) bars a person on the sex offender registry from filing a second petition for release from registration requirements within two years from a final order on a previous petition, if the first petition for relief was denied. Hawkins’s first petition was not denied. Instead, the trial court apparently treated the disposition of that first petition as a voluntary dismissal or, alternatively, a dismissal for failure to prosecute, neither of which operated as an adjudication on the merits of the first petition. Denial and dismissal are distinct dispositions, and there is nothing in the text of OCGA § 42-1-19 (b) (3) remotely suggesting that the bar contained in the statute applies to cases in which the first petition was voluntarily dismissed or dismissed without prejudice for failure to prosecute, as opposed to cases in which the first petition was denied on the merits. Thus, the trial court erred by dismissing Hawkins’s second petition for release from sex offender registration requirements, and we vacate the trial court’s order and remand the case for adjudication on the merits.

Judgment vacated and case remanded.

Miller and Dillard, JJ., concur.

       OCGA § 9-11-3 (b) provides:
      At the time of Sling the complaint for a civil action in superior court or state court, the plaintiff shall file the appropriate civil case filing form with the clerk of the court. The form shall contain complete information and shall be substantially in the form prescribed in Code Section 9-11-133. The filing of the complaint shall not be delayed for the filing of the case filing form. If, after a civil action has been filed, the court presiding over the civil action decides that the civil case filing form has not been filed or has been filed incorrectly, the court shall require the plaintiff to file the civil case filing form or an amended form. In no case shall the failure to accurately complete the civil case filing form required by this Code section provide a basis to dismiss a civil action.

      (Emphasis supplied.)

       Neither the dismissal order nor Hawkins’s motion to set aside the dismissal is contained in the appellate record. In the order denying Hawkins’s motion to set aside the dismissal, however, the trial court noted that: (1) on October 28, 2013, the clerk of court entered a notice of noncompliance advising Hawkins that he failed to file a case initiation form; (2) on November 13, 2013, the trial court entered a notice of requirement to file the form or explain his noncompliance, advising Hawkins that failure to do so would be considered an election to have the petition dismissed without prejudice; (3) on December 13, 2013, the trial court entered a final order dismissing the case; and (4) on December 19, 2013, Hawkins filed a case initiation form and a motion to set aside the dismissal, stating that he complied with OCGA § 9-11-3 (b) and the court’s order and suggesting that the clerk of court lost the form. The trial court denied the motion to set aside the dismissal, concluding that Hawkins
      failed to meet his burden of persuasion with respect to the statutory bases [under OCGA § 9-11-60 (d)] for setting aside the default judgment. In this regard, nothing in the record, save [Hawkins’s] self-serving motion, suggests [he] complied ... or attempted to comply . . . with OCGA § 9-11-3 (b) prior to the entry of the [f]inal [dismissal o]rder. Rather, . . . the record clearly indicates that. . . only after the [f]inal [o]rder was entered, [Hawkins] complied with OCGA § 9-11-3 (b).

       See In re Baucom, 297 Ga. App. 661 (678 SE2d 118) (2009).

       See OCGA § 9-11-41 (a) (3), (b).

       The State implicitly concedes the trial court’s error, requesting that “[i]n light of the fact that [Hawkins’s] initial case was dismissed rather than denied, [this Court] . . . remand this case ... for an order based on the merits rather than any procedural noncompliance.”


author: Miller, Judge.

text:
    A15A0092.
    THE STATE v. ANDRADE.
    (768 SE2d 525)
    Decided January 23, 2015

      Richard L. Perryman III, District Attorney, Rebekah M. Ditto, Jennifer R. Smith, Assistant District Attorneys, for appellant.

      John W. Strickland, Jr., for appellee.
   Miller, Judge.

On June 6, 2014, the trial court entered an order granting Aram Andrade’s motion to suppress his incriminating statements on the basis that the statements were involuntary. The State filed a notice of appeal of this order on June 23, 2014. However, pursuant to a recent amendment to OCGA § 5-7-1 (a) (5) (A), which became effective on July 1, 2013, the State was required to file its notice of appeal within two days of the trial court’s ruling.* The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. See Couch v. United Paperworkers Intl. Union, 224 Ga. App. 721 (482 SE2d 704) (1997). Because the State’s notice of appeal was untimely filed 17 days after entry of the trial court’s order, we lack jurisdiction. Accordingly, this appeal is dismissed.

Appeal dismissed.

Andrews, P. J., and Branch, J., concur.

       The two-day requirement does not apply to pretrial orders excluding evidence on the basis that it was illegally seized, nor orders excluding the results of drug or alcohol tests. See OCGA § 5-7-1 (a) (4). Here, however, the appeal excludes “other evidence” and, therefore, comes within the ambit of OCGA § 5-7-1 (a) (5).