author: BARNES, Presiding Judge.

text:
    A15A0666.
    BARBOUR-AMIR v. COMCAST OF GEORGIA/VIRGINIA, INC.
    (772 SE2d 231)
   BARNES, Presiding Judge.

Alesia Barbour-Amir filed this premises liability action against Comcast of Georgia/Virginia, Inc. (“Comcast”), alleging that she was injured when she tripped over a child who was sitting on the floor behind her in a Comcast store. After discovery, Comcast filed a motion for summary judgment, which the trial court granted. Because there is no evidence that Comcast had actual or constructive knowledge of the hazard posed by the child, we affirm the grant of summary judgment to Comcast.

Summary judgment is proper if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). A defendant can prevail on summary judgment

by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [the] plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of [the] plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We review the grant of summary judgment de novo and view the evidence in the light most favorable to the nonmovant. Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010).

So viewed, the evidence showed that on July 5, 2010, Barbour-Amir walked into a Comcast store and got in line to pay a bill. The store was narrow and crowded, and several customer service representatives were assisting customers from behind separate teller windows. The store also had a security guard on the premises to protect the property, staff members, and customers and to maintain order inside the store. While monitoring the surroundings, the guard would stand inside the store along the wall or at the front door.

When Barbour-Amir reached the front of the line, the security guard directed her to one of the teller windows. After Barbour-Amir paid her bill at the teller window, she began turning around to leave the store. Mid-turn, however, she tripped over a young child who was sitting on the floor behind her and fell to the floor, injuring her ankle, knees, and lower back. The child was in the store with his mother, and their identities remain unknown.

In her deposition, Barbour-Amir testified that the child had not been sitting behind her when she walked up to the teller window, that she was unsure how long she had stood at the window to pay the bill, and that she did not know how long the child had been there before her fall. Barbour-Amir further testified that the child was not “creating a scene or being disruptive” in any way while in the store. In fact, she had not noticed the child at all while she was standing in line prior to the accident.

In her deposition, the customer service representative who assisted Barbour-Amir at the teller window testified that she had not seen the child seated behind Barbour-Amir before her fall. According to the representative, “typically the customers are in front of you and they’re blocking your view as to . . . what’s going on behind them.”

The store security guard testified in his deposition that he did not remember if there were any children “anywhere around” when the accident occurred. The guard further testified that he had not seen any children acting unruly that day and had not received any complaints from customers about any children before the accident.

In an affidavit, a Comcast official who had conducted an internal investigation for the company averred that there had been no prior incidents of children causing customers to trip or fall in the store. Nor were there any prior complaints about children “sitting, running, engaging in horseplay, or otherwise posing a risk of harm to anyone” there.

On appeal, in several related enumerations of error, Barbour-Amir contends that the trial court erred in granting summary judgment to Comcast because a genuine issue of material fact exists as to whether the security guard and/or customer service representatives in the store had notice that the child was sitting behind her and should have intervened to prevent her injury. We disagree.

As we have often stated, in premises liability cases, proof of a fall, without more, does not give rise to liability on the part of a proprietor, because the true basis of a proprietor’s liability for personal injury to an invitee is the proprietor’s superior knowledge of a condition that may expose the invitee to an unreasonable risk of harm.

(Citation and punctuation omitted.) Ingles Markets v. Carroll, 329 Ga. App. 365, 367 (765 SE2d 45) (2014).

• In determining whether a proprietor had superior knowledge of the hazardous condition, we note that cases involving the conduct of customers or their children differ from slip-and-fall cases involving foreign substances or static conditions. “A foreign substance that falls onto the floor and stays in one place is clearly a different type of hazard than the sudden, intervening act of a third party,” Ingles Markets, 329 Ga. App. at 368, and a proprietor cannot be held liable for injuries caused to an invitee by a third party whose conduct occurred without warning and was unforeseeable. W. D. Enterprises v. Barton, 218 Ga. App. 857, 858 (463 SE2d 529) (1995). Rather, a proprietor has a duty to intervene to protect invitees from harm only if the danger posed by the third party is apparent to the proprietor or would have been apparent to a reasonably prudent person under like circumstances. See Elliott v. Burkhalter, 173 Ga. App. 749 (2) (327 SE2d 858) (1985) (“Knowledge by the owner or occupier or his employee of the dangerous condition created by a third person is a prerequisite to recovery.”) (citation and punctuation omitted). “Thus where the proprietor has no notice of dangerous conduct on the part of customers or third persons on the occasion in question, he cannot be held liable for injuries to an invitee resulting from that conduct.” Belk-Hudson Co. v. Davis, 132 Ga. App. 237, 238 (1) (a) (207 SE2d 528) (1974).

In light of this precedent, “the issue becomes whether [Comcast] had notice of the dangerous conduct on the part of the child on the occasion in question.” (Citation, punctuation and emphasis omitted.) Elliott, 173 Ga. App. at 749 (2). Aproprietor’s knowledge of the danger may be actual or constructive, see Ingles Markets, 329 Ga. App. at 367, and thus we turn to whether there was any evidence that Comcast had actual or constructive knowledge of the alleged hazard posed by the child.

1. Actual Knowledge. There is no evidence in the record before us that Comcast had actual knowledge of the child sitting on the floor behind Barbour-Amir before she fell. As previously noted, the customer service representative who assisted Barbour-Amir at the teller window testified that she did not see the seated child before the fall, and the store security guard did not recall whether there were any children where the accident occurred. Depositions were not taken of any of the other customer service representatives who had been on duty or of any other customers who had been in the store.

Barbour-Amir argues, however, that there was sufficient evidence for a jury to infer that one or more of the customer service representatives and/or the store security guard had actual knowledge of the child seated behind her. Specifically, in arguing that one of the customer service representatives must have had actual knowledge of the seated child, Barbour-Amir relies upon testimony from the store security guard that he had been behind the teller windows on past occasions and would “assume” that the representatives “probably can see the whole floor” when assisting customers. Barbour-Amir also argues that the customer service representative who assisted her at the teller window could see the floor area where the child was sitting based upon the representative’s testimony that she could see Barbour-Amir’s knee on the ground as she was getting up from the floor after the fall.

In arguing that the security guard must have had actual knowledge of the seated child, Barbour-Amir relies upon testimony from the guard that, if he had been standing in the store where Barbour-Amir said he was standing at the time of the accident, he “maybe” could have seen the floor area if he had been in that “exact position,” if his eyes had not been “wandering around the store, watching other people.” The guard also noted, “When it does get crowded,... my eyes can’t be everywhere at one time.”

The testimony of the security guard is simply too speculative to support an inference that either he or the customer service representatives had actual knowledge of the child sitting behind Barbour-Amir before her fall. Likewise, it would be too speculative to infer that the customer service representative could see the floor area where the child was sitting as she assisted Barbour-Amir at the teller window, based solely upon the representative’s testimony that she could see Barbour-Amir’s knee on the floor after the accident had occurred, when no one was at the teller window. “Speculation that raises a mere conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment.” Johns v. Housing Auth. for City of Douglas, 297 Ga. App. 869, 872 (678 SE2d 571) (2009). See Barich v. Cracker Barrel Old Country Store, 244 Ga. App. 550, 552-553 (1) (536 SE2d 221) (2000) (summary judgment properly granted to restaurant where store employee’s “statement showfed] speculation, not actual knowledge”); Lovins v. Kroger Co., 236 Ga. App. 585, 586 (1) (a) (512 SE2d 2) (1999) (summary judgment properly granted to grocery store because inference that store employee had actual knowledge of the hazard “cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility”). Accordingly, Barbour-Amir failed to present evidence from which a jury could find that Comcast had actual knowledge of the seated child.

2. Constructive Knowledge. Nor has Barbour-Amir come forward with evidence that Comcast had constructive knowledge of the hazard posed by the seated child. There are two principal ways to demonstrate constructive knowledge: (a) through evidence that the hazardous condition lasted so long that it would have been discovered and removed if the proprietor had exercised reasonable care in inspecting the premises, or (b) through evidence that an employee of the defendant was in the immediate vicinity of the hazardous condition and could have easily seen and corrected the hazard. See Ingles Markets, 329 Ga. App. at 367; Benefield v. Tominich, 308 Ga. App. 605, 608 (1) (708 SE2d 563) (2011). Neither circumstance exists in this case.

(a) Barbour-Amir cannot show that the child was seated behind her for so long that Comcast should have discovered the hazard posed by the child through a reasonable inspection procedure. There is no evidence in the record as to how long the child was seated behind Barbour-Amir, and there is no evidence that there were any complaints about the child earlier that day or any similar prior incidents at the store involving customers tripping over children. Furthermore, the evidence established that Comcast had a reasonable inspection procedure that it followed to protect the safety of its customers and maintain order in its store, namely, the presence of the security guard on the premises. Under these circumstances, Barbour-Amir failed to show that her tripping over the seated child was anything other than “a sudden and unexpected occurrence” for which there could be no recovery. Elliott, 173 Ga. App. at 750 (2) (customer injured by child bicycling on store sidewalk could not recover on premises liability claim because the episode “happened suddenly and without warning”) (citation and punctuation omitted). See Ingles Markets, 329 Ga. App. at 368 (customer injured by child running through store could not recover on premises liability claim because customer “fail[ed] to establish how long the child may have been running or that a more rigorous inspection procedure would have been able to prevent her fall”); Belk-Hudson Co., 132 Ga. App. at 239 (3) (b) (customer injured by children running, pushing, and shoving in store could not recover on premises liability claim because there was no “evidence to indicate how long they may have been running and playing”).

Decided April 29, 2015.

McAleer Law Firm, Charles H. McAleer, for appellant.

Moore Ingram Johnson & Steele, William R. Johnson, for appellee.

(b) Barbour-Amir argues, however, that the customer service representatives and/or the security guard were in the immediate vicinity of the seated child and thus had constructive knowledge of the hazard that the child posed to her. But showing that an employee was merely working in the immediate area of the alleged hazard is not enough; the employee must have been in a position to have easily seen the hazard and intervened to correct it before the accident occurred. Mucyo v. Publix Super Markets, 301 Ga. App. 599, 601 (1) (688 SE2d 372) (2009). For the'same reasons discussed supra in Division 1, Barbour-Amir has offered only speculation and conjecture regarding the ability of the customer service representatives and security guard to have easily seen the seated child from their vantage point before the fall.

For these combined reasons, we conclude that Barbour-Amir cannot show that Comcast had actual or constructive knowledge of the hazard posed by the seated child and thus cannot succeed on her premises liability claim. “We recognize, of course, that issues of premises liability are generally not susceptible of summary adjudication; however, we conclude that the evidence in this case is plain, palpable, and undisputed and summary judgment is therefore appropriate.” (Citation and punctuation omitted.) Ingles Markets, 329 Ga. App. at 369. Consequently, we affirm the trial court’s grant of summary judgment to Comcast.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       The security guard was employed by a third-party security firm that contracted with Comcast to provide security at its store. Because, as explained below, there is no evidence that the guard had actual or constructive knowledge of any hazard posed by the child, we do not address whether or to what extent Comcast could have been held liable based on the guard’s conduct.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A15A0747.
    GRIBBLE v. THE STATE.
    (772 SE2d 236)
   DOYLE, Presiding Judge.

Aaron Bradley Gribble was convicted of theft by taking. He appeals, arguing that the trial court erred by denying his general demurrer. We disagree and affirm.

Gribble was charged with theft by taking. During the trial, his attorney made an oral general demurrer, alleging that the indictment failed to allege a crime under the laws of the State of Georgia. The trial court denied the motion, and this appeal followed.

A general demurrer challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime. In other words, a general demurrer is essentially a claim that the indictment is fatally defective and, therefore, void, because it fails to allege facts that constitute the charged crime or any other crime, including a lesser included offense of the charged crime.

We apply the following test to determine whether an indictment can withstand a general demurrer:

If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premised, the guilt of the accused follows as a legal conclusion, the indictment is good. An indictment which charges the offense in the language of the defining statute and describes the acts constituting the offense sufficiently to put the defendant on notice of the offense with which he is charged survives a general demurrer.

Here, the indictment charged Gribble with theft by taking, alleging that he “did take a 42 [-inch] LG television, the property of Joseph Floyd, with the intention of depriving said owner of said property, contrary to the laws of said State, the good order, peace and dignity thereof.” OCGA § 16-8-2 provides: “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”

Decided April 29, 2015.

Selwin E. Patterson, for appellant.

Herbert E. Franklin, Jr., District Attorney, Melissa A. Pittman, Assistant District Attorney, for appellee.

Gribble argues that the indictment failed to allege a crime because it did not specifically allege that he unlawfully took Floyd’s television with the intention of depriving him thereof. Gribble overlooks, however, that the indictment did allege that he “did take [Floyd’s] television . . . with the intention of depriving said owner of said property, contrary to the laws of said State.” Thus, because the indictment tracked the language of the Code section, and Gribble could not admit the conduct alleged in the indictment and be innocent of the crime, the trial court did not err by denying Gribble’s general demurrer.

Judgment affirmed.

Phipps, C. J., and Boggs, J., concur.

       OCGA § 16-8-2.

       (Citations, punctuation and footnote omitted; emphasis in original.) State v. Wilson, 318 Ga. App. 88, 91-92 (1) (732 SE2d 330) (2012). “Because a person cannot be lawfully convicted on an invalid indictment, a general demurrer may be raised orally or in writing at any time before judgment is entered on his or her conviction.” Id. at 91, n. 10, quoting Stinson v. State, 279 Ga. 177, 180, n. 3 (611 SE2d 52) (2005). Thus, Gribble’s demurrer was timely.

       (Punctuation and footnote omitted.) Pulliam v. State, 309 Ga. App. 477, 479-480 (2) (711 SE2d 21) (2011).

       See Falagian v. State, 300 Ga. App. 187, 191 (2), 192 (3) (684 SE2d 340) (2009) (affirming the trial court’s denial of general demurrer because the indictment alleging theft by taking tracked the theft by taking Code section and “if [the defendant] admitted the conduct alleged in the indictment, he would not be innocent of the crime”), disapproved on other grounds by McNair v. State, 293 Ga. 282, 284 (745 SE2d 646) (2013).


author: McMillian, Judge.

text:
    A15A0066.
    THOMAS v. GREGORY.
    (772 SE2d 382)
   McMillian, Judge.

David Neil Thomas filed a complaint seeking recovery for injuries sustained when DeKalb County police officer Nathan C. Gregory placed him under arrest after erroneously entering the model number rather than the serial number of Thomas’s handgun while checking the gun’s registration, leading to an incorrect return that the gun had been stolen. Pursuant to OCGA § 9-11-12 (b) (6), Gregory filed a motion to dismiss, asserting that Thomas’s claims were barred by the doctrine of official immunity. The trial court granted his motion, finding that Thomas’s complaint alleged a discretionary act rather than a ministerial one. Thomas now appeals, and for the reasons discussed below, we reverse.

“On appeal, we review a trial court’s decision to grant or deny a motion to dismiss de novo.” Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423 (762 SE2d 138) (2014).And“[i]nreviewing the grant of a motion to dismiss, an appellate court must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant’s favor.” (Citation and punctuation omitted.) Ewing v. City of Atlanta, 281 Ga. 652, 653 (2) (642 SE2d 100) (2007). We may also consider any exhibits attached to and incorporated into the complaint and the answer, also construing them in the appellant’s favor. Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 89 (2) (764 SE2d 398) (2014).

As alleged in Thomas’s complaint, on November 6,2011, Gregory, along with two John Doe defendants, responded to a call regarding a fight at Major League Bar & Grill on Northlake Parkway in Tucker. Thomas, who denies any involvement in that fight, was exiting the parking lot when he was pulled over and questioned by Gregory. Thomas advised the officers that he had two weapons, which he had purchased new, and that he had a license for both weapons. One was a Smith & Wesson 9mm, model number SW9VE. Thomas was placed in the back of a patrol vehicle while Gregory ran the weapons through the National Crime Information Center (“NCIC”) database to determine whether they were stolen. According to Thomas, he witnessed Gregory input the model number as the serial number in the NCIC database search and informed him that he was entering the wrong number as the serial number. Gregory denied that he was inputting the wrong number and told Thomas that “he could do what he wanted.” As a result of the input error, the weapon was shown as stolen, and an arrest warrant was obtained against Thomas for theft by receiving stolen property.

In his complaint, Thomas alleges that Gregory’s incorrect entry of the model number into the NCIC database violated the DeKalb County policy of “Neglect of Duty.” He further alleges the duty to properly identify and enter the serial number of a weapon into the NCIC database was “simple, absolute and, definite, arose under conditions admitted or proved to exist, and required merely the execution of a specific duty,” and that Gregory negligently performed that duty. Thomas sought damages for alleged physical, emotional, and mental injuries arising from Gregory’s conduct, as well as expenses incurred in connection with the defense of the criminal proceedings against him, which were proximately caused by Gregory’s “failure to exercise ordinary care in the performance of [his] ministerial duty.”

In his answer, Gregory admitted mistakenly entering the model number as a serial number, but denied liability pursuant to the doctrine of official immunity and simultaneously filed a motion to dismiss for failure to state a claim on December 6, 2013. In its January 31, 2014 order, the trial court recited that Gregory had filed a “Motion for Summary Judgment,” and after finding that Thomas did not allege any policy that specifically requires a police officer to accurately transcribe a serial number, granted Gregory’s “Motion for Summary Judgment.” On March 3, 2014, Thomas filed a notice of appeal from the trial court’s order granting Gregory’s motion for summary judgment. Then, on March 10, 2014, the trial court entered an amended order, stating that its March 3, 2014 order should have referenced a motion to dismiss, not a motion for summary judgment.

1. We first address Thomas’s contention that the trial court lacked jurisdiction to amend its March 3, 2014 order after he filed a notice of appeal. In its order, the trial court relied on OCGA § 9-11-60 (g) to correct a “clerical mistake.” However, our Supreme Court has explained that

not even that option is available since the filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.

(Citations omitted.) Upton v. Jones, 280 Ga. 895, 896 (1) (635 SE2d 112) (2006) (lower court has no ability to correct clerical mistake pursuant to OCGA § 9-11-60 (g) once notice of appeal is filed). Thus, the trial court’s amended order “cannot be considered for purposes of this appeal, even if a remand becomes necessary as a consequence.” (Citation and punctuation omitted.) Id.

2. Turning to the trial court’s original order, Thomas asserts that because the trial court erroneously treated Gregory’s motion as one for summary judgment, it applied an incorrect legal standard and failed to provide the requisite notice to the parties that it intended to convert the motion to dismiss into a motion for summary judgment. OCGA § 9-11-12 (b) provides: “If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment____” Once the motion has been so converted, “all parties shall be given reasonable opportunity to present all material made pertinent to [a motion for summary judgment].” Id. See also Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 93 (2) (483 SE2d 602) (1997) (“Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court’s authority to do so is not unlimited.”) (citation and punctuation omitted).

Although it does not appear from the record that the trial court considered any matters outside the pleadings, we are faced with an order expressly stating that it granted a motion for summary judgment. Because this order was entered without providing Thomas an opportunity to present all material made pertinent to a motion for summary judgment, we are required to remand so that Thomas may be given fair notice and an opportunity to respond. See Simmons v. Brady, 251 Ga. App. 717, 718 (1) (555 SE2d 94) (2001) (“This opportunity consists of notice that the motion will be converted and an opportunity to submit evidence and be heard within 30 days.”) (citations omitted); Sumner, 225 Ga. App. at 93 (2) (“While the record as it stands may support the trial judge’s ruling, it also shows that the appellant was not notified that the trial court intended to rule upon the merits of her claim and that she was not provided a full and final opportunity to respond to the court’s sua sponte review.”) (citation and punctuation omitted; emphasis in original).

3. Because it is unclear from the record whether the trial court, on remand, will readdress Gregory’s motion as a motion to dismiss, we will consider Thomas’s alternative enumeration of error that, even if we treat the order as granting a motion to dismiss, the trial court erred when it disregarded the allegations of the complaint to find that Gregory’s duties were discretionary. Our Supreme Court has recently reiterated that a motion to dismiss should not be granted unless “the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof[.]” (Citation omitted.) Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014). Therefore, the movant must establish that the plaintiff cannot possibly introduce evidence within the allegations of the complaint entitling him to the relief sought. Id. at 774-775.

Here, as in Austin, “the pivotal determination in this case is whether [Gregory’s] actions or inactions constitute the violation of a ministerial or discretionary duty.” 294 Ga. at 774. Under Georgia law, the doctrine of official immunity “provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority.” (Citations omitted.) Id. An act is ministerial if it is “simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.” Id. However, a discretionary act “calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” Id. (noting that the distinction between the two types of acts is highly fact-specific). The “Neglect of Duty” policy identified by Thomas in his complaint clearly does not define an act that is “simple, absolute, and definite” or that requires merely “the execution of a specific duty.” See Grammens v. Dollar, 287 Ga. 618, 620 (697 SE2d 775) (2010) (comparing cases that have found written policies requiring ministerial acts).

However, although the trial court correctly found that Thomas has not pointed to any specific policy requiring Gregory to accurately input a serial number into the NCIC database, without the benefit of any discovery the highly fact-specific inquiry of whether the act complained of was ministerial or discretionary cannot be definitively answered at the motion to dismiss stage. See Austin, 294 Ga. at 774. And,

it does not matter that [Thomas] has pointed to no specific and clear procedures or methods for dealing with [the inputting of serial numbers]. This is factual evidence which may or may not be developed during discovery and can be considered on a subsequent motion for summary judgment.

Decided May 1, 2015.

Steven Salcedo, for appellant.

Terri N. Gordon, for appellee.

(Punctuation omitted.) Id. at 775. Thus, even if it was the trial court’s intent to grant the motion to dismiss, it was improper at this early stage of the case. See Marshall v. McIntosh County, 327 Ga. App. 416, 420 (3) (759 SE2d 269) (2014) (“At this early stage of the case, it was premature for the trial court to conclude that [defendant’s] duties were discretionary rather than ministerial . . . .”). Accordingly, the trial court’s order is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Ray, J., concur.

       Although the record shows that the trial court granted Gregory’s motion as one for summary judgment, for the reasons discussed in Division 1, we likewise review a trial court’s decision to grant a motion for summary judgment de novo, viewing the evidence in the light most favorable to the nonmovant. See Godwin v. Mizpah Farms, LLLP, 330 Ga. App. 31, 31 (766 SE2d 497) (2014).

       There is no indication in the record that the John Does were identified below, and only Gregory is a party to this appeal.

       As allegedby Thomas, that policy states: “Neglect of Duty is prohibited. To this end, there shall be no failure to give suitable attention to the performance of duty.”

       Attached to Thomas’s complaint was a directed verdict in his favor following a criminal trial on August 22, 2012.

       It appears from the record that Thomas did not file an opposition to the motion to dismiss.

       OCGA § 9-11-60 (g) provides: “Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.”

       See, e.g., Hand v. South Ga. Urology Center, P.C., 332 Ga. App. 148 (2) (769 SE2d 814) (2015); City of Atlanta v. Bennett, 322 Ga. App. 726, 732 (2) (746 SE2d 198) (2013).

       We echo, however, Justice Nahmias’s observation that the trial court may “exercise its broad discretion to enter protective orders governing discovery ... to focus discovery initially on the issue of whether any applicable ministerial duties existed.” (Citations omitted.) Austin, 294 Ga. at 776-777 (Nahmias, J., concurring). “If this initial and limited stage of discovery produces the likely result — that no such ministerial duty exists — then the defendants could move for summary judgment to end the case. If [the plaintiff] does find evidence of such a duty, more extensive and expensive discovery into the issues of breach of the duty, causation, and damages could proceed and would be warranted.” Id.


text:
    A15A0557.
    KEITH v. CALLAHAN.
    (772 SE2d 386)
   McMillian, Judge.

Susan J. Callahan filed a petition seeking visitation rights to her minor granddaughter, A. C., pursuant to OCGA § 19-7-3. Following a hearing, the trial court entered judgment in favor of Callahan. A. C.’s mother (the “mother”), who is Callahan’s daughter, appeals that order, asserting that the trial court erred as a matter of law in awarding visitation to Callahan. Having considered her arguments, we find no error and affirm.

In reviewing an order granting grandparent visitation, “we view the evidence in the light most favorable to the trial court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the mandated visitation was authorized.” (Citation omitted.) Esasky v. Ford, 321 Ga. App. 891, 892 (743 SE2d 550) (2013). And in doing so, “[w]e do not weigh the evidence or determine witness credibility, but defer to the trial court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.” (Citation omitted.) Id.

So viewed, the evidence shows that A. C. was born on December 25, 2007. The mother and father, having never married, separated in July 2011. In September 2011, the mother began a relationship with Michael Keith, whom she later married in November 2013. Beginning when A. C. was born and continuing through 2009, Callahan watched A. C. every day that the mother worked. From 2009 through January 2014, Callahan continued to watch A. C. two to three days per week, including overnight every Friday night. Callahan has a bedroom set up just for A. C. at her home. She frequently paid for A. C.’s meals and activities and took her shopping for trinkets and clothing. And while the mother was attending nursing school in 2011 and 2012, Callahan provided so much financial assistance that she claimed A. C. as a dependent on her tax returns with the mother’s permission.

However, on February 5, 2014, as she was returning A. C. to the mother and Michael’s home, Michael angrily confronted her and told her that she would not be allowed to take A. C. again unless she also included his two sons from his previous marriage. Shortly thereafter, Callahan filed a petition for visitation with A. C. pursuant to OCGA § 19-7-3. The parties’ attempt at court-ordered mediation was unsuccessful, and the case proceeded to a final hearing on August 4, 2014, at which Callahan, the mother, and Michael each testified. On August 8,2014, the trial court entered an order setting forth findings of fact and concluding, under a standard of clear and convincing evidence, that A. C.’s welfare would be harmed unless visitation with Callahan is granted and that it is in A. C.’s best interest that such visitation be granted.

1. The mother first argues that the trial court erred in granting visitation because her decision should be conclusive. However, Georgia law expressly provides that “[w]hile a parent’s decision . . . shall be given deference by the court, the parent’s decision shall not be conclusive when failure to provide grandparent contact would result in emotional harm to the child.” (Emphasis supplied.) OCGA § 19-7-3 (c) (3). And, a trial court “may grant any grandparent... reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation.” (Emphasis supplied.) OCGA § 19-7-3 (c) (l). Thus, the mother’s reading of the statute as conferring upon her conclusive authority to grant Callahan visitation with A. C. is incorrect. As this Court has explained, this statute

was enacted to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild, where, as here, a child’s parent objects. In this regard, the statute codified a standard for the trial courts to utilize in balancing the wishes of an alienated grandparent, the rights of the parents, and the interests of the child.

(Citations and punctuation omitted.) Sheppard v. McCraney, 317 Ga. App. 91, 92 (730 SE2d 721) (2012).

The mother argues, nonetheless, that because she testified that Callahan was “free and welcome to visit” with A. C., albeit only at her home, the trial court had no authority to implement a competing visitation schedule. But the mother has provided no authority that requires the trial court to balance the competing interests and rights ofthe grandparent, parent, and child in such a way that OCGA § 19-7-3 would only apply where absolutely all visitation has been cut off, and we find none. In essence, the mother is asserting that the trial court rejected her wishes for creating a visitation schedule, which would only include visitation at her home and would be conditioned on Callahan’s inclusion of Michael’s sons in the visitation.

We recently addressed similar circumstances, in which a set of grandparents regularly visited with their grandchild until they experienced “resistance” from the child’s mother following the death of their son. Evans v. Sangster, 330 Ga. App. 533, 534 (768 SE2d 278) (2015). With the assistance of counsel, the mother and grandparents entered into an agreement setting out a regular visitation schedule, but the grandparents later filed a petition seeking court-ordered visitation. Id. The mother then withheld all visitation and, in her answer, asserted that visitation between her child and the grandparents “was entirely at her discretion.” Id. The trial court disagreed and entered an order granting the grandparents regularly scheduled visitation. Id. at 535. On appeal, we rejected the mother’s contention that the court gave no deference to her wishes in crafting the visitation schedule and affirmed the trial court’s order. Id. at 536-537 (2) (noting the order expressly recognized the mother’s judgment as to the best interest of the child regarding visitation shall be given deference but is not conclusive). See also Luke v. Luke, 280 Ga. App. 607, 608-609 (634 SE2d 439) (2006) (affirming trial court’s grant of regularly scheduled grandparent visitation where record showed mother had previously agreed the grandparent could spend “some time” with her children).

Here, the trial court utilized the correct clear and convincing standard of proof in finding that A. C.’s welfare would be harmed unless reasonable visitation with Callahan was granted and that it is in the best interest of A. C. that such visitation be granted. And in reaching that determination, the trial court noted that it considered the “facts and circumstances of the case” and the parties’ respective “interest in the case.” Although the mother testified that Callahan was “welcome” to visit A. C. at her home, Callahan testified that she has not returned to their home since the evening of February 5, 2014 because she is afraid of having another confrontation with Michael. In its findings of fact, the trial court expressly noted that Callahan “is clearly frightened of [Michael]” and that her concerns “are certainly understandable in light of his testimony in court including his attitude and overall demeanor which was very combative and aggressive.” Thus, the mother’s argument is without merit, and the trial court did not err in declining to give the mother’s decision conclusive effect. See Evans, 330 Ga. App. at 536-537 (2).

2. The mother also contends that the trial court only considered A. C.’s best interest from Callahan’s point of view and, therefore, made erroneous findings of fact. She first takes issue with the trial court’s finding that Michael was argumentative and that Callahan feared a confrontation with him. The mother argues that this finding is unsupported because the trial court only relied on Callahan’s testimony and disregarded her and Michael’s testimony. However, in its order, the trial court made express findings as to the credibility and demeanor of the witnesses, including Michael. And this factfinding is a duty specifically reserved for the trial court. See, e.g., Esasky, 321 Ga. App. at 892 (appellate court does not weigh evidence or determine witness credibility, but defers to the trial court’s factfinding).

Decided May 1, 2015.

Ashley Keith, pro se.

James E. Toland, Jr., for appellee.

The mother also complains that the trial court failed to consider that she has two stepsons and that A. C. will see that her stepbrothers are not going with her to Callahan’s home. However, the trial court’s order clearly shows that it considered the fact that Michael has two sons from his prior marriage who live with Michael and the mother and that the boys have regular visitation with their mother. Viewed in the light most favorable to the judgment — wherein the trial court found through Callahan’s testimony, and at times the mother’s testimony as well, that Callahan has spent significant, meaningful time with A. C. since her birth, has kept a bedroom for her in her home, has cared for her two to three days every week (including a weekly overnight visit), has provided her with substantial financial assistance, has been a strong influence in her life, has maintained a very close relationship with her, and that it would be harmful to A. C. to sever this relationship — the evidence authorized the court’s express finding that it is in the best interest of A. C. that visitation with Callahan be granted. See Luke, 280 Ga. App. at 611-612 (3).

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       For clarity, we will refer to Michael Keith as “Michael” in this opinion.

       The record shows that the father was served with an amended petition in which he was named as a party. However, he did not file a response or appear at the hearing and is not a party to this appeal.

       The order also established a visitation schedule, which included every other Friday from 4:00 p.m. until 6:00 p.m. on Saturday, one week during summer break, and several days during winter break.

       This Code section also creates a rebuttable presumption “that a child who is denied any contact with his or her grandparent or who is not provided some minimal opportunity for contact with his or her grandparent may suffer emotional injury that is harmful to such child’s health.” OCGA § 19-7-3 (c) (3).

       In making these findings, the trial court is required to consider whether (1) the child resided with the grandparent for six months or more; (2) the grandparent provided financial support for the basic needs of the child for at least one year; (3) there was an established pattern of regular visitation or child care by the grandparent; or (4) any other circumstance exists indicating that emotional or physical harm would he reasonably likely if visitation is not granted. See OCGA § 19-7-3 (c) (1) (A)-(D).

       The mother’s dissatisfaction with the amount of time Callahan wishes or is able to spend with Michael’s sons is not an issue addressed by OCGA § 19-7-3, and it may remain a matter that cannot be readily resolved through our legal system.


author: Dillard, Judge.

text:
    A13A2160.
    HOUSE HASSON HARDWARE COMPANY, INC. v. LAWSON’S HOME CENTER, INC. et al.
    (772 SE2d 389)
   Dillard, Judge.

House Hasson Hardware Company, Inc. (“House Hasson”) sued Lawson’s Home Center, Inc. (“LHC”) and its principals, Richard Lawson and Scott Lawson, alleging that LHC defaulted on a promissory note and that the Lawsons were personally liable for that note based on a written guaranty. After the parties filed cross-motions for summary judgment, the trial court granted House Hasson’s motion on its claim that LHC was liable for the debt but denied it as to the Lawsons, and granted the Lawsons’ motion on the ground that the personal guaranty did not satisfy the Statute of Frauds. House Hasson appealed, arguing that the trial court erred in finding that the personal guaranty was unenforceable.

In an unpublished opinion issued on February 26, 2014, this Court affirmed the trial court’s judgment, holding that our prior precedents in this area of law — including Thompson v. LaFarge Building Materials, Inc. —“dictate[d] the result in this case” — i.e., our conclusion that the personal guaranty did not identify the principal debtor with sufficient specificity to satisfy the Statute of Frauds. But on October 20, 2014, the Supreme Court of Georgia granted House Hasson’s petition for certiorari, vacated our judgment, and remanded the case to this Court for reconsideration in light of its recent decision in LaFarge Building Materials, Inc. v. Thompson. In that decision, the Supreme Court held that a personal guaranty, which incorporated the subject credit application and described the party whose debt was guaranteed as the “applicant,” sufficiently identified the principal debtor to satisfy the Statute of Frauds. And given this decision, we conclude that the personal guaranty at issue here likewise sufficiently identified the principal debtor. Thus, we reverse the trial court’s grant of summary judgment in favor of the Lawsons as to the enforceability of the personal guaranty and its denial of summary judgment to House Hasson as to this same issue.

At the outset of our analysis, we note that summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” If summary judgment is granted by a trial court, it enjoys no presumption of correctness on appeal, “and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” Indeed, in our de novo review of a trial court’s grant of a motion for summary judgment, we are charged with “viewing the evidence, and all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant.”

So viewed, the record shows that on October 18, 1996, LHC completed a credit application with House Hasson. At the top of the form, a line designated for the “Individual, Partners, or Corporate Name” was left blank, but just below, a line designated for the “Trade Name or Business Name” indicated “Lawson’s Home Center, Inc.” The bottom of the form contains a paragraph that reads as follows:

The undersigned, jointly and individually, guarantee any and all debts, direct or indirect, contingent or otherwise, whether now existing or hereafter incurred, of the above Applicant to House Hasson Hardware (HHH). This guaranty will continue in full force and effect until revocation in writing by the undersigned. Such revocation shall not release the undersigned from any liability owed prior to receipt by HHH of such revocation notice. The undersigned expressly waives notice of acceptance of the guaranty, diligence, presentment, demand for payment, any right to require proceedings first against Applicant, protest or notices of any kind.

Below this paragraph, Scott Lawson and Richard Lawson signed on lines above their printed names, which were designated for guarantors.

On April 15,2010, LHC executed a promissory note for $64,814.40 in favor of House Hasson. But less than two years later, LHC defaulted on the note, and, subsequently, House Hasson filed a lawsuit against LHC and the Lawsons, seeking the amount due, interest, and attorney fees. Shortly after LHC and the Lawsons filed an answer, House Hasson moved for summary judgment, arguing that both LHC and the Lawsons were liable for the debt. Then, following LHC and the Lawsons’ separate responses, the trial court issued an order granting summary judgment in favor of House Hasson as to its claim against LHC but denying it as to its claim against the Lawsons on the ground that the guaranty did not satisfy the Statute of Frauds.

House Hasson, thereafter, filed a motion for reconsideration, which the trial court denied. And a few months later, the Lawsons filed their own motion for summary judgment, arguing that they could not be held personally liable for the debt because the guaranty was unenforceable as a matter of law. House Hasson responded, but the trial court granted summary judgment in favor of the Lawsons. This appeal follows.

House Hasson contends that the trial court erred in denying its motion for summary judgment and granting the Lawsons’ motion for same. Specifically, it argues that the court erred in concluding that the personal guaranty contained in the credit application was unenforceable as a matter of law because it did not comply with the Statute of Frauds. As noted supra, given the Supreme Court’s recent decision in LaFarge Building Materials, Inc. v. Thompson, we agree and, therefore, reverse the trial court’s judgment.

As we have previously explained “under the Statute of Frauds and cases applying the Statute, a promise to answer for another’s debt is only enforceable against the promisor if it identifies the debt, the principal debtor, the promisor, and the promisee.” Indeed, it is well settled that a guaranty must “identify the principal debtor by name.” And where a guaranty omits the name of the principal debtor, of the promisee, or of the promisor, “the guaranty is unenforceable as a matter of law.” In fact, even where the intent of the parties is manifestly obvious, “where any of these names [are] omitted from the document, the agreement is not enforceable because it fails to satisfy the Statute of Frauds.”

Furthermore, a court must “strictly construe an alleged guaranty contract in favor of the guarantor,” and “[t]he guarantor’s liability may not be extended by implication or interpretation.” In addition, parol evidence is not admissible to “supply any missing essential elements of a contract required to be in writing by our Statute of Frauds.” Consequently, this Court is not at liberty to determine “the identity of the principal debtor, of the promisee, or of the promisor by inference as this would entail consideration of impermissible parol evidence.”

Decided May 4, 2015.

Sponcler & Thorpe, Henry C. Thorpe, Jr., Rebecca B. Gober, for appellant.

Bray & Johnson, H. Michael Bray, Jennifer S. Gill, for appellees.

That being said, here, the guaranty included at the bottom of the same page as the credit application, which was clearly completed by Lawson’s Home Center, Inc., identifies the principal debtor by referring to “the above Applicant.” And it is appropriate to define the term used to “identify the principal debtor in the guaranty here — ‘Applicant’— using its usual and common signification.” Indeed, to understand a contract, we must “read and understand the words used in the contract^ and] unless the contract indicates otherwise, we generally accept that contractual terms carry their ordinary meanings.” Of course, “applicant” is ordinarily defined as “[o]ne who applies or makes request.” Thus, when read in conjunction with the incorporated application, and with the word “applicant” bearing its usual and common meaning, the guaranty here identifies Lawson’s Home Center, Inc. as “the party applying for credit, which plainly makes that company the ‘Applicant’ and therefore the principal debtor.” Given these circumstances, the trial court erred in denying House Hasson’s motion for summary judgment and in granting summary judgment in favor of the Lawsons as to the enforceability of the personal guaranty. Accordingly, we reverse those judgments.

Judgment reversed.

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

       323 Ga. App. 276, 280 (746 SE2d 908) (2013).

        House Hasson Hardware Co., Inc. v. Lawson’s Home Center, Inc., 325 Ga. App. XXV, Case No. A13A2160 (February 26, 2014) (unpublished) (“We reach the foregoing conclusion fully cognizant that our Supreme Court recently granted a petition for certiorari in LaFarge Building Materials, Inc. v. Thompson ... to address whether this Court erred in ‘holding that the guaranty agreement at issue here did not identify the principal debtor with sufficient specificity to satisfy the Statute of Fraudsf.]’ Nevertheless, for the time being, the applicable precedents in this area of law dictate the result in this case.”).

        See House Hasson Hardware Co., Inc. v. Lawson’s Home Center, Inc., Case No. S14C0976 (October 20, 2014).

       295 Ga. 637 (763 SE2d 444) (2014).

        See id. at 641 (2).

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

        Benefield v. Tominich, 308 Ga. App. 605, 607 (1) (708 SE2d 563) (2011) (punctuation omitted).

        Legacy Communities Group, Inc. v. Branch Banking & Trust Co., 316 Ga. App. 496, 497 (729 SE2d 612) (2012); see also Tampa Investment Group v. Branch Banking & Trust Co., 290 Ga. 724, 728 (2) (723 SE2d 674) (2012); John Deere Co. v. Haralson, 278 Ga. 192, 193 (599 SE2d 164) (2004); OCGA § 13-5-30 (2).

        Legacy, 316 Ga. App. at 497; see also Builder’s Supply Corp. v. Taylor, 164 Ga. App. 127, 128 (296 SE2d 417) (1982).

        Legacy, 316 Ga. App. at 498 (punctuation omitted); see also Dabbs v. Key Equip. Finance, 303 Ga. App. 570, 572 (694 SE2d 161) (2010).

        Legacy, 316 Ga. App. at 498 (punctuation omitted); see also Dabbs, 303 Ga. App. at 572.

        Legacy, 316 Ga. App. at 498 (punctuation omitted); see also Dabbs, 303 Ga. App. at 572; Caves v. Columbus Bank & Trust Co., 264 Ga. App. 107, 114 (589 SE2d 670) (2003).

        Legacy, 316 Ga. App. at 498 (punctuation omitted); see also Dabbs, 303 Ga. App. at 572-573; OCGA § 10-7-3.

       Legacy, 316 Ga. App. at 498 (punctuation omitted); see also Dabbs, 303 Ga. App. at 573.

        Legacy, 316 Ga. App. at 498 (punctuation omitted); see also Dabbs, 303 Ga. App. at 573.

        Thompson, 295 Ga. at 640 (2).

        Id. (punctuation omitted).

       The Compact Oxford English Dictionary 64 (2d ed. 1991); see also Thompson, 295 Ga. at 640 (2).

        Thompson, 295 Ga. at 641 (2).

        See id. at 640-41 (2); Capital Color Printing, Inc. v. Ahern, 291 Ga. App. 101, 105-06 (1) (661 SE2d 578) (2008) (holding that personal guaranty was enforceable because principal debtor was identified as “customer” on designated line in credit application, guaranty referenced customer as purchaser, and defendants admitted in discovery responses that principal debtor was the “customer” to whom plaintiff was extending credit).


text:
    A15A0507.
    MOTON v. THE STATE.
    (772 SE2d 393)
   Dillard, Judge.

Following a hearing, a trial court found Earl M. Moton, Sr., guilty of criminal contempt. On appeal, Moton contends that the evidence was insufficient to support his conviction. For the reasons set forth infra, we affirm.

At the outset, we note that, as with any criminal conviction, “the evidence in any criminal contempt case must show that the defendant is guilty beyond a reasonable doubt.” Indeed, criminal contempt is a crime in the ordinary sense; “it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both.” And on appeal of a criminal-contempt conviction, the appropriate standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the record shows that on April 3, 2014, Moton was at the DeKalb County courthouse to testify as a character witness for his son, Earl Moton II, who was being tried on charges that he committed an act of public indecency at a local library. Specifically, the evidence in that case showed that a library patron saw the younger Moton expose his penis and begin masturbating while he was watching the patron’s ten-year-old daughter, who was sitting at a nearby desk using one of the library’s computers. Immediately, the patron, her close family friend, and one of the librarians confronted the younger Moton, who admitted adjusting himself but denied any criminal intent.

Toward the end of the trial, but before the evidence was closed, the library patron, her family friend, and three of the librarians were sitting in the hallway outside of the courtroom when a visibly upset Moton began pacing back and forth while loudly exclaiming that he hoped God would make the children and grandchildren of those who lied about his son suffer in the same way his son was currently suffering. The same witnesses also heard Moton angrily refer to the patron’s daughter, stating that no one “wants that” and that nobody even “knew whether it was a boy or a girl” because she was “all covered up.” In addition, Moton further complained that he had donated money to that branch of the library but, yet, was not called by library staff on the day of his son’s alleged indiscretion.

Subsequently, the witnesses reported Moton’s behavior to the State’s solicitor-general, who then informed the trial court. And after hearing a brief account of Moton’s statements from three of the witnesses, the trial court explained to Moton that it would hold a hearing to determine if he was guilty of criminal contempt. Later that same day, the trial court issued a rule nisi, informing Moton that he was being charged with criminal contempt for “threatening and otherwise intimidating witnesses for the State outside of the presence of the Court.” In addition, the order directed Moton to appear for an evidentiary hearing to adjudicate the issue.

As noticed, on April 14, 2014, the trial court held a criminal-contempt hearing, in which the library patron, her family friend, and the three librarians testified regarding Moton’s comments in the hallway outside of the courtroom on the day of his son’s trial. Moton did not testify, but several witnesses — who had also testified as character witnesses for his son — claimed that he was only loudly praying outside of the courtroom. Nevertheless, at the conclusion of the hearing, the trial court found that Moton’s actions were a danger to the orderly administration of justice and, thus, that he was guilty of criminal contempt. This appeal follows.

In his sole enumeration of error, Moton contends that the evidence was insufficient to support his criminal-contempt conviction because he violated no statute or court order. This argument is entirely lacking in merit.

It is well established that the distinction between criminal and civil contempt is that “criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.” Indeed, under OCGA § 15-1-4 (a) (1), a trial court can issue attachments and inflict summary punishment for contempt of court in cases of “[m]isbehavior of any person or persons in the presence of such courts or so near thereto as to obstruct the administration of justice.” But the Supreme Court of Georgia has “stressed the importance of confining summary contempt orders to misconduct occurring in court.” And where the alleged contumacious acts are committed outside the court’s presence, “the considerations justifying expedited procedures do not pertain.” In such situations, summary adjudication of indirect contempt is prohibited, and “due process requires that a person who is tried for indirect criminal contempt is entitled to more normal adversary procedures.” Thus, a defendant charged with criminal contempt must, inter alia, be “advised of charges, have a reasonable opportunity to respond to them, and be permitted the assistance of counsel and the right to call witnesses.”

Here, the trial court did not impose summary punishment upon Moton, but rather, informed him in open court (during his son’s trial) that it would be scheduling a criminal-contempt hearing (during which he could be represented by counsel) based upon evidence that he was intimidating witnesses. Additionally, the trial court issued a rule nisi that also advised Moton of the charge against him. Consequently, Moton’s contention that he was not put on notice as to why he was being charged with criminal contempt, and thus not afforded due process, is belied by the record.

Moton further argues that he was nevertheless denied due process because he was not notified that he violated a specific court order or statute, implying that there can be no criminal contempt without such a violation. This argument is a nonstarter. As OCGA § 15-1-4 (a) (1) clearly contemplates, and as we have previously held, criminal contempt “involves some form of wilful disrespect toward the court; it may involve intentional disregard for or disobedience of an order or command of the court, or it may involve conduct which interferes with the court’s ability to administer justice.” And here, at the evidentiary hearing, the State showed that prior to the close of evidence in his son’s criminal trial, Moton directed loud, threatening comments toward several of the State’s witnesses and, thus, engaged in behavior that “created a clear and present danger to orderly administration of justice.” Accordingly, the evidence was sufficient to support the trial court’s finding that Moton was guilty of criminal contempt.

Decided May 5, 2015.

The McReynolds Law Firm, Jule McReynolds, Jr., for appellant.

Sherry Boston, Solicitor-General, Wystan Getz, Samantha J. Newman, Assistant Solicitors-General, for appellee.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.

        Garland v. State, 253 Ga. 789, 790 (1) (325 SE2d 131) (1985); see also In re Winship, 397 U. S. 358, 361-65 (I) (90 SCt 1068, 25 LE2d 368) (1970).

        Garland, 253 Ga. at 790 (1) (punctuation omitted); see also Bloom v. Illinois, 391 U. S. 194, 201 (II) (88 SCt 1477, 20 LE2d 522) (1968) (same); Gompers v. United States, 233 U. S. 604, 610 (34 SCt 693, 58 LE 1115) (1914) (“These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech”) (Holmes, J.).

        Cabiness v. Lambros, 303 Ga. App. 253, 255 (1) (692 SE2d 817) (2010) (punctuation omitted).

       Although the record is not entirely clear, apparently the library patron’s daughter was wearing some variation of a hijab.

        City of Cumming v. Realty Dev. Corp., 268 Ga. 461, 462 (2) (491 SE2d 60) (1997) (punctuation omitted); see also Alexander v. DeKalb County, 264 Ga. 362, 364 (1) (444 SE2d 743) (1994) (same); Carey Canada, Inc. v. Hinely, 257 Ga. 150, 151 (356 SE2d 202) (1987) (same).

        Ramirez v. State, 279 Ga. 13, 15 (2) (608 SE2d 645) (2005) (punctuation omitted); see also Pounders v. Watson, 521 U. S. 982, 988 (117 SCt 2359, 138 LE2d 976) (1997) (same).

        Ramirez, 279 Ga. at 15 (2) (punctuation omitted); accord International Union v. Bagwell, 512 U. S. 821, 833 (II) (B) (114 SCt 2552, 129 LE2d 642) (1994).

        Ramirez, 279 Ga. at 15 (2) (punctuation and footnote omitted); see also Young v. United States, 481 U. S. 787, 798 (107 SCt 2124, 95 LE2d 740) (1987).

        Ramirez, 279 Ga. at 15 (2) (punctuation omitted); see also Young, 481 U. S. at 798-99.

        See In re Harris, 289 Ga. App. 334, 337 (2) (b) (657 SE2d 259) (2008) (holding that in criminal contempt cases the law requires that a rule nisi issue and he served upon the accused to inform him of the charges, which satisfies due process).

        Cf. Ramirez, 279 Ga. at 15 (2).

        In re Schoolcraft, 274 Ga. App. 271, 274 (2) (617 SE2d 241) (2005) (punctuation omitted); see also In re Spruell, 227 Ga. App. 324, 325 (489 SE2d 48) (1997) (same).

        In re Jones, 198 Ga. App. 228, 231 (6) (401 SE2d 278) (1990) (punctuation omitted); see also Wood v. Georgia, 370 U. S. 375, 384-85 (82 SCt 1364, 8 LE2d 569) (1962); Garland, 253 Ga. at 790 (2).


text:
    A15A0508.
    MOTON v. THE STATE.
    (772 SE2d 396)
   Dillard, Judge.

Following trial, a jury convicted Earl Moton II, on two counts of misdemeanor public indecency. On appeal, Moton contends that the evidence was insufficient to support his convictions and that the trial court erred in (1) refusing to sentence him as a first offender, (2) denying his motion for a continuance of the hearing on his motion for new trial, and (3) denying his motion for new trial, in which he argued that the jury verdict was not unanimous. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on May 16, 2013, Aquila Abdel-Quedus and her ten-year-old daughter went to the Stonecrest branch of the DeKalb County Public Library to meet a close family friend, Amir Bin Yamin, who was there studying for a test. Shortly after her daughter sat down at a desk to use one of the library’s computers, Abdel-Quedus noticed that a young man, later identified as Moton, appeared to be observing her daughter through the gaps in a book shelf. A few seconds later, Abdel-Quedus watched as Moton pulled his erect penis out of his pants and began masturbating.

Immediately, Abdel-Quedus alerted Bin Yamin to Moton’s actions. But from his vantage point behind Moton, Bin Yamin did not see Moton’s exposed penis. However, Bin Yamin did see that Moton was moving one of his arms back and forth near his waist and, thus, appeared to be masturbating. And upon confronting Moton, Bin Yamin also noticed that Moton’s pants were open. Consequently, Bin Yamin informed one of the librarians, who then questioned Moton about his actions. In response, Moton claimed that his underwear had become bunched so he attempted to adjust himself, thinking no one would notice. Unpersuaded by this response, the librarian called a police officer, who further questioned Moton regarding the incident at the police station and received a similar explanation.

Thereafter, the State charged Moton, via accusation, with one count of public indecency by exposing his sexual organs in a lewd manner and one count of public indecency by making a lewd appearance in a state of partial nudity. And during the ensuing trial, Abdel-Quedus, Bin Yamin, the librarian, and the police officer testified about the incident. In addition, several witnesses, including Moton’s father, testified as to Moton’s good character, and Moton testified in his own defense. Nevertheless, at the conclusion of the trial, the jury found Moton guilty on both counts in the accusation.

Subsequently, Moton filed a motion for new trial, and the trial court scheduled a hearing. Then, approximately one week before the hearing, Moton filed a motion for continuance, arguing, inter alia, that he had not received a transcript of his trial. But finding that Moton had, in fact, already received an electronic copy of the transcript, the trial court denied Moton’s motion. After Moton filed an amended motion for new trial, the court held the hearing on the motion as scheduled and, ultimately, denied it. This appeal follows.

1. Moton first contends that the evidence was insufficient to support his convictions on the two charges of public indecency. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And, of course, in evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Thus, the jury’s verdict will be upheld so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” With these guiding principles in mind, we turn now to Moton’s specific claim of error.

Under OCGA § 16-6-8 (a), a person commits the offense of misdemeanor public indecency when he or she performs, in a public place, “[a] lewd exposure of the sexual organs” or “[a] lewd appearance in a state of partial or complete nudity.” And here, Abdel-Quedus testified that she saw Moton pull his erect penis from his pants and begin to masturbate. This evidence alone was sufficient to prove that Moton committed the offense of public indecency by a lewd exposure of his sexual organs and by a lewd appearance in a state of partial nudity.

2. Moton also contends that the trial court erred in refusing to sentence him as a first offender under OCGA § 42-8-60. Again, we disagree.

It is well established that the decision of whether or not to sentence a defendant under the first-offender statute “lies entirely within the discretion of the trial court.” And absent some erroneous belief on the part of the trial court that the law does not permit first offender treatment, we “presume the trial court acted properly in imposing the sentence.” Indeed, to rebut this presumption there “must be a clear statement in the record that constitutes either a general refusal to consider such treatment or an erroneous expression of belief that the law does not permit the exercise of such discretion.”

In the case sub judice, the trial court initially expressed some doubt as to whether it could sentence Moton as a first offender after the jury returned a guilty verdict. However, after a brief recess, the trial court stated that based on defense counsel’s position that first-offender treatment was within the court’s discretion, the court would allow defense counsel to argue as to why first-offender treatment was appropriate. Then, following argument by defense counsel and the State’s solicitor-general on the issue, the trial court prefaced sentencing by stating:

Well, the cases make it clear that I have to exercise my discretion when these things are requested, and that is what I’m doing. That is why I’m giving you an opportunity to explain to me why because I am wanting to and I legitimately am committed to following the law as it is stated in this state. The law doesn’t require me to give first offender status. It simply requires me to consider it, and I am considering it.

The court then continued by noting that in light of the overwhelming evidence and Moton’s arrogance, lack of remorse, and lack of credibility, it did not believe that first-offender treatment was appropriate. Consequently, the court sentenced Moton to ten days of incarceration with credit for one day served. Given these circumstances, the trial court’s remarks during sentencing did not “indicate either a lack of awareness that the court had the discretion to sentence [Moton] under the first offender statute, that the court was applying a mechanical policy that prevented proper consideration of the request, or that there was an outright refusal to consider the request.” Accordingly, the trial court did not abuse its discretion in declining Moton’s request for first-offender treatment.

3. Moton further contends that the trial court erred in denying his motion for a continuance of the hearing on his motion for new trial. Yet again, we disagree.

Generally, the appellate courts of this State will not “reverse a trial court’s decision to deny a motion for a continuance absent a showing of a clear abuse of discretion.” More specifically, a motion for a continuance of the hearing on motion for new trial is “addressed to the sound discretion of the trial judge, and in the absence of a clear showing to the contrary, it will be presumed that such discretion was not abused.” Importantly, to be entitled to a new trial based upon the denial of a motion for a continuance, a defendant has the burden of showing that “he was harmed by that denial.”

Here, as noted supra, approximately one week before the scheduled hearing on his motion for new trial, Moton filed a motion for continuance, arguing, inter alia, that he had not received a transcript of his trial. But in its order denying Moton’s request for a continuance, the trial court noted that Moton had actually received an electronic copy of the transcript four days before requesting the continuance. Moreover, Moton had the burden of demonstrating that he was harmed by the trial court’s denial, and having reviewed the record, we cannot conclude that he has made such a showing. Thus, the trial court did not abuse its discretion in denying Moton’s motion for a continuance.

4. Finally, Moton contends that the trial court erred in denying his motion for new trial, arguing that a poll of the jury showed that the guilty verdict was not unanimous. Once again, we disagree.

Under Georgia law, the privilege of polling a jury in criminal cases is “the legal right of the defendant, and does not depend upon the discretion of the court.” The purpose of polling is to ensure that “each member of the jury assents to the verdict, and for the court to discern possible coercion.” Thus, a negative response to a poll question is “enough to raise the inference that the finding of the jury was not concurred in by each of the jurors, and, this being true, there was no legal verdict.” Indeed, when a poll of the jury discloses that the jury was not a unanimous verdict, the proper procedure is for “the trial court to return the jury to the jury room for further deliberations in an effort to arrive at a unanimous verdict.” And it is not “incumbent upon counsel to move the court for further deliberations.”

Following the verdict in this matter, Moton requested that the trial court poll the jury, and the court agreed to do so. The first four jurors questioned all indicated that they freely and voluntarily agreed with the guilty verdict. The court then engaged in the following colloquy with Juror Five.

THE COURT: Juror [Five] was the verdict of guilty as to both counts your verdict when you were in the jury room?
JUROR [FIVE]: The first one was, yes, but not the second one.
THE COURT: And as to the second issue, did you vote to convict on the second count?
JUROR [FIVE]: Yes.
THE COURT: Is that your verdict now?
JUROR [FIVE]: Yes.
THE COURT: Is it freely and voluntarily made by you as you sit here now?
JUROR [FIVE]: Yes.
THE COURT: So you are good with the verdict as it stands? JUROR [FIVE]: Well, can you explain because —
THE COURT: You just need to answer the question.
JUROR [FIVE]: Yes.

On appeal, Moton argues that Juror Five’s initial response to the trial court indicates that the verdict was not unanimous and, therefore, that the trial court erred by failing to instruct the jury to continue its deliberations. But while not entirely clear, the most logical interpretation of Juror Five’s response to the court’s first question shows that she may not have initially voted to convict on the second count at the beginning of deliberations. Nevertheless, upon further questioning, she responded affirmatively when asked whether she did vote to convict (i.e., in the past tense and, thus, in the jury room), whether she ultimately agreed with the verdict in its entirety, and whether she did so freely and voluntarily. And given her subsequent affirmations of the verdict, the juror’s initial equivocation regarding the second count does not support an inference that the verdict was less than unanimous. Accordingly, the trial court was not required to instruct the jury to continue its deliberations.

For all of the foregoing reasons, Moton’s convictions are affirmed.

Decided May 5, 2015.

The McReynolds Law Firm, Jule McReynolds, Jr., for appellant.

Sherry Boston, Solicitor-General, Wystan Getz, Samantha J. Newman, Assistant Solicitors-General, for appellee.

Judgment affirmed.

McFadden, J., concurs. Ellington, P. J., concurs in judgment only.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

         See OCGA § 16-6-8 (a) (2).

        See OCGA § 16-6-8 (a) (3).

        See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Jones v. State, 318 Ga. App. 26, 29(1) (733 SE2d 72) (2012) (punctuation omitted); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

       OCGA § 16-6-8 (a) (2).

       OCGA § 16-6-8 (a) (3).

        See Douglas v. State, 330 Ga. App. 549, 551 (1) (768 SE2d 526) (2015) (holding that sufficient evidence existed to support conviction for public indecency by a lewd exposure of sexual organs, when a witness noticed defendant masturbating on a bench outside of a shopping mall and could clearly see his exposed penis); Whitfield v. State, 259 Ga. App. 61, 61-62 (575 SE2d 899) (2002) (holding evidence was sufficient to support conviction for public indecency when, after an altercation in a parking lot, defendant “stood in front of the car, exposed his penis, shook it, and told [a woman] to suck it”); see generally OCGA § 24-14-8 (“The testimony of a single witness is generally sufficient to establish a fact. . . .”).

        Freeman v. State, 328 Ga. App. 756, 762 (5) (760 SE2d 708) (2014) (punctuation omitted); accord Tew v. State, 320 Ga. App. 127, 127 (739 SE2d 423) (2013).

        Freeman, 328 Ga. App. at 762 (5) (punctuation omitted); see Graydon v. State, 313 Ga. App. 580, 582 (722 SE2d 173) (2012) (holding that trial court acted within its discretion in denying defendant’s request for first-offender treatment when there was no indication that trial court refused to consider request or erroneously believed that such was not permitted).

        McCullough v. State, 317 Ga. App. 853, 853 (733 SE2d 36) (2012) (punctuation omitted); accord Powell v. State, 271 Ga. App. 550, 551-52 (610 SE2d 178) (2005).

        McCullough, 317 Ga. App. at 855; see Steele v. State, 270 Ga. App. 488, 492 (606 SE2d 664) (2004) (holding that court’s announcement that it would deny first-offender status “[b] ased on the nature of the offense” did not indicate mechanical sentencing policy).

        See McCullough, 317 Ga. App. at 855-56 (holding that evidence showed that trial court’s refusal to afford defendant first offender treatment was based on deliberate consideration of the case and sentencing options and, therefore, was not an abuse of discretion); Graydon, 313 Ga. App. at 581 (same).

        Geiger v. State, 295 Ga. 648, 651 (3) (763 SE2d 453) (2014).

        Graham v. State, 107 Ga. App. 332, 333 (1) (130 SE2d 166) (1963); see generally Boatwright v. State, 91 Ga. 13, 13 (16 SE 101) (1892).

        Geiger, 295 Ga. at 651 (3) (punctuation omitted).

        See Columbus v. State, 270 Ga. 658, 664-65 (4) (513 SE2d 498) (1999) (holding that trial court did not abuse its discretion in denying defendant’s motion for a continuance when record showed that, contrary to defendant’s contention, State did not fail to comply with discovery duties and that defendant failed to show that denial resulted in harm to his case).

        Benefield v. State, 278 Ga. 464, 466 (602 SE2d 631) (2004) (punctuation omitted); accord Maddox v. State, 233 Ga. 874, 876 (2) (213 SE2d 654) (1975).

        Benefield, 278 Ga. at 466.

        Id. (punctuation omitted); accord Ponder v. State, 11 Ga. App. 60, 61 (74 SE 715) (1912).

        Benefield, 278 Ga. at 465.

        Id. at 466.

        See Wesby v. State, 300 Ga. App. 597, 600 (3) (685 SE2d 495) (2009) (holding that trial court was not required to instruct the jury to continue deliberations because despite juror’s initial indication that the verdict was not hers, she unequivocally affirmed the verdict in response to additional questions).