author: Dillard, Judge.

text:
    A15A1423.
    BURDETTE v. CHANDLER TELECOM, LLC.
    (779 SE2d 75)
   Dillard, Judge.

Adrian Burdette, who was seriously injured after falling from a cell-phone tower while working for Chandler Telecom, LLC (“Chandler”), appeals the State Board of Workers’ Compensation’s (the “Board”) decision to deny him benefits, which the superior court affirmed by operation of law. On appeal, Burdette argues that the Board erred in finding that his act of descending the tower by “controlled-descent,” contrary to company policy, was “willful misconduct,” which barred his recovery. He further contends that the administrative law judge (“ALJ”), who presided over the hearing on his claim for benefits, erred in making several evidentiary rulings. For the reasons set forth infra, we reverse.

Viewing the evidence in a light most favorable to Chandler (i.e., the prevailing party), the record shows that Burdette was initially employed by Chandler as a cell-tower technician on September 1, 2012, and he worked there for three weeks before taking a five-week leave of absence. Burdette was terminated during his leave of absence due to a miscommunication with his supervisor, but he was then rehired on November 2, 2012. During Burdette’s leave of absence, Chandler required all of its cell-tower technicians to become ComTrain certified. Upon his return, Burdette was asked if he was ComTrain certified, and he lied and said that he had this certification.

On November 5, 2012, Burdette’s first day back at work, he was assigned to work on the top of a cell tower with Brian Prejean, who was the “lead tower hand” of the crew. And prior to their shift that day, the supervisor over Burdette’s six-person crew instructed them to climb down the towers and not to use controlled descent. Prejean and Burdette then worked together on the same cell tower from around 8:00 a.m. until 3:30 or 4:00 p.m. When their work was almost complete, Prejean instructed Burdette to climb down the tower, but Burdette responded that he wanted to use controlled descent instead.

Prejean’s account of his conversation with Burdette just before Burdette’s descent (and fall) is as follows:

I told him no, man, just climb down. Might as well just climb down.... [W]e don’t have a safety rope up here for you to grab. He told me he had done this so many times. I was like, dude, they’re going to be mad if you do it. [Our supervisor] will be mad if you do it and,.. . you might not have a job or you might, you know, have to deal with the consequences if you don’t listen ....

Nevertheless, even after Prejean instructed Burdette to climb down the tower two or three more times, Burdette prepared his equipment and began controlled descent. Shortly thereafter, Burdette fell a great distance from the tower and landed on an “ice bridge,” which caused serious injuries to his ankle, leg, and hip. Burdette has no memory of his fall or anything that happened immediately before or after it, including his conversation with Prejean. Prejean testified that Bur-dette’s fall was the result of “user error,” rather than any equipment malfunction. He further noted that, while Burdette had the required equipment for climbing down, he did not have all of the necessary equipment for controlled descent.

After the accident, Burdette filed a claim for workers’ compensation related to the injuries that he sustained. A hearing was then held before an ALJ, and after reviewing post-hearing briefs from the parties, the ALJ denied Burdette’s claim for benefits. Specifically, the ALJ found that Burdette was barred from recovery because he engaged in “willful misconduct” within the meaning of OCGA § 34-9-17 (a), when he defied his supervisor’s instruction to climb down the tower instead of using controlled descent. Burdette appealed the ALJ’s award to the Board, and the Board affirmed and adopted the ALJ’s findings. On October 4, 2014, Burdette filed a notice of appeal in the superior court, but that court never scheduled a hearing or issued a ruling on the matter. As a result, the Board’s decision to deny Burdette benefits was affirmed by operation of law 60 days after it was docketed in the superior court. Thereafter, we granted Bur-dette’s application for discretionary appeal. This appeal follows.

1. As a preliminary matter, although Chandler does not develop any legal arguments to support this contention, it suggests in passing (and argued more fully below) that the superior court lacked jurisdiction over this case because Burdette filed his appeal from the Board’s decision in the wrong county. In relevant part, OCGA § 34-9-105 provides that “if the injury occurred outside the state,” either party to a workers’ compensation dispute may appeal to “the superior court of the county in which the original hearing was held” within 20 days of the Board’s final order or judgment.

Here, it is undisputed that Burdette was injured in Texas, and that he did not appeal the Board’s decision to the superior court in the same county where the original hearing before the ALJ was held. Nevertheless, in Fowler v. Aetna Casualty & Surety Company, this Court overruled a line of cases holding that a superior court lacks subject-matter jurisdiction over appeals from workers’ compensation awards that are filed in the wrong venue, noting that the restrictive rule expressed in those cases would thwart the compensatory purpose of the Workers’ Compensation Act. Thus, we held in Fowler that a superior court has subject-matter jurisdiction over an appeal from a workers’ compensation award even if it was filed in the wrong county. Based on the foregoing, to the extent that Chandler argues the superior court lacked subject-matter jurisdiction over Burdette’s appeal because it was not filed in the proper county, we reject that contention.

2. Turning to the merits of this appeal, Burdette first argues that the ALJ and the Board erred in finding that his workers’ compensation claim was barred because his injury resulted from his own “willful misconduct.” We agree.

At the outset, we note that whether or not an employee is guilty of willful misconduct, or is guilty of willful refusal to perform a duty imposed on that employee by statute, are “questions of fact for the Board of Workers’ Compensation, and the findings of the Board upon these questions are final, and will not be disturbed where there is evidence to support them.” With this guiding principle in mind, we turn now to Burdette’s specific claim.

OCGA § 34-9-17 (a) provides:

No compensation shall be allowed for an injury or death due to the employee’s willful misconduct, including intentionally self-inflicted injury, or growing out of his or her attempt to injure another, or for the willful failure or refusal to use a safety appliance or perform a duty required by statute.

“Willful misconduct” is an affirmative defense that the employer must prove by a preponderance of the evidence. And although OCGA § 34-9-17 does not define “willful misconduct,” the Supreme Court of Georgia has explained:

Mere violation of rules, when not [willful] or intentional, is not [willful] misconduct within the meaning of the laws upon the subject of workmen’s compensation. There must be something more than thoughtlessness, heedlessness, or inadvertence in violating a rule or order of the employer, to constitute [willful] misconduct. There must be a [willful] breach of the rule or order. The mere violation of rules, when not [willful] or intentional, is not “[willful] misconduct.” If the workman is acting within the scope of his employment, mere disregard of a rule or order does not become such misconduct, unless the disobedience be in fact [willful] or deliberate, and not a mere thoughtless act, done on the spur of the moment.

Our Supreme Court has further explained that willful misconduct “involves conduct of a quasi-criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” Indeed, the general rule is that “mere violations of instructions, orders, rules, ordinances, and statutes, and the doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute [willful] misconduct.”

On appeal, Burdette relies on Wilbro v. Mossman to support his contention that his disobedience of a work rule — i.e., using controlled descent instead of climbing down the cell tower — does not constitute willful misconduct as a matter of law. In Wilbro, a store clerk fell from a shelf on which she was standing to restock merchandise on the “highest shelf,” and she injured her head and back. Although the clerk had been using a stepladder, the top shelf could not be reached with the ladder. And there was evidence that the clerk’s supervisor had instructed her and her co-worker not to restock shelves that they could not reach with the stepladder and not to stand on the shelves. Additionally, the co-worker reminded the clerk of the supervisor’s instruction when she was climbing on the shelves, but the clerk said “it was okay and did not come down.” When the store clerk subsequently sought workers’ compensation benefits, the store asserted the affirmative defense that recovery was barred by the clerk’s willful misconduct. But relying on the Supreme Court precedent set forth above, we held that the employee’s conduct “cannot constitute willful misconduct as a matter of law since the conduct was at most a violation of instructions and/or the doing of a hazardous act in which the danger was obvious, but was not conduct that was criminal or quasi-criminal in nature.”

We see no meaningful distinction between Wilbro and the case sub judice. Here, like the clerk in Wilbro, Burdette intentionally violated a work rule and his supervisor and top hand’s explicit instructions to climb down the cell tower, rather than using controlled descent. To be sure, Burdette engaged in “a hazardous act in which the danger was obvious,” as he lacked some of the necessary equipment for controlled descent and failed to use the “tag line” or “rope” that was thick enough to support him. But importantly, as in Wilbro, his conduct was not of a “quasi criminal nature,” involving “the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” Indeed, Burdette and other cell-tower technicians had successfully used controlled descents in the past to descend cell towers, and Chandler even required its technicians to learn controlled descent because it is necessary in certain circumstances for rescue purposes. Most certainly, Chandler would not require its technicians to train in and use controlled descent to rescue someone if serious injury was the likely or probable result of such conduct. In light of the foregoing, Chandler has not met its burden of showing that Burdette’s use of controlled descent was willful misconduct within the meaning of OCGA § 34-9-105 (a).

The Board, in adopting the ALJ’s award, found that Burdette’s workers’ compensation claim was barred by OCGA § 34-9-17 (a) because he “willfully disobeyed instructions given him by the lead tower hand when [Burdette] told him he was going to [rappel] down, and ignored the lead tower hand’s repeated instructions to climb down.” But again, the mere violation of a work rule or instructions and engaging in a hazardous act in which the danger is obvious is insufficient to constitute willful misconduct such as to bar recovery of benefits. Under these particular circumstances, the Board’s finding that Burdette’s claim for workers’ compensation benefits was barred by his own willful misconduct was unsupported by the evidence.

Decided October 30, 2015

Reconsideration denied December 8, 2015

Witcher Law Firm, Daniel B. Greenfield, for appellant.

Hamilton, Westby, Antonowich & Anderson, Andrew G. Daugherty, for appellee.

Perkins Law Firm, C. Jason Perkins, amicus curiae.

3. Burdette also contends that the ALJ erred in making several evidentiary rulings. However, given our holding in Division 2 supra, we need not address these arguments.

For all of the foregoing reasons, we reverse the Board’s denial of workers’ compensation benefits to Burdette.

Judgment reversed.

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

       As explained more fully infra, controlled descent is similar to rappelling, and those terms are used interchangeably throughout the record.

        See, e.g., Atlas Auto., Inc. v. Wilson, 225 Ga. App. 631, 633 (1) (484 SE2d 669) (1997).

       Throughout the record, Burdette is sometimes referred to as “Seith,” his middle name.

       ComTrain is a third-party company that instructs cell-tower technicians to climb and descend cell-phone towers. Specifically, it trains technicians to use “controlled descent” when descending the towers. Controlled descent is similar to rappelling, except there is no “kick off” and the technicians must descend at a slow, safe, and controlled speed. According to a Chandler representative, controlled descent is used only when rescuing someone, and Chandler technicians are “always supposed to climb down.”

       Burdette denies ever being asked whether he was ComTrain certified.

       The lead tower hand “leads the crew,” “runs the top of the tower,” and “tell[s] the people what to do up there.”

       According to Prejean, Burdette descended the tower using the “wrong tag line” instead of using the ‘load line,” which is a thicker type of rope and is specifically made for controlled descent.

        See OCGA § 34-9-17 (a) (“No compensation shall be allowed for an injury or death due to the employee’s willful misconduct, including intentionally self-inflicted injury, or growing out of his or her attempt to injure another, or for the willful failure or refusal to use a safety appliance or perform a duty required by statute.”).

        See OCGA § 34-9-105 (b) (providing that “if the court does not hear the case within 60 days of the date of docketing in the superior court, the decision of the board shall be considered affirmed by operation of law . ..”).

       OCGA § 34-9-105 (b).

       159 Ga. App. 190 (283 SE2d 69) (1981).

        See id. at 193-94 (3).

        See id. at 193 (3).

        See id. at 193-94 (3); see also Keramidas v. Dep’t of Human Res., 147 Ga. App. 820, 822 (2) (250 SE2d 560) (1978) (“Jurisdiction of the subject-matter does not mean simply jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which that particular case belongs.” (emphasis supplied) (punctuation omitted)).

        Roy v. Norman, 261 Ga. 303, 304 (404 SE2d 117) (1991) (emphasis omitted) (punctuation omitted); see also Steed v. Liberty Mut. Ins. Co., 157 Ga. App. 273, 273 (1) (277 SE2d278) (1981).

        See Cornell-Young (Macon Pre-Stressed Concrete Co.) v. Minter, 168 Ga. App. 325, 327 (1) (309 SE2d 159) (1983).

        Commc’ns, Inc. v. Cannon, 174 Ga. App. 820, 820 (331 SE2d 112) (1985); Borden Co. v. Dollar, 96 Ga. App. 489, 490-91 (100 SE2d 607) (1957).

        Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 342 (1) (150 SE 208) (1929).

        Id. at 342 (1) (emphasis supplied); accord Roy, 261 Ga. at 304.

        Roy, 261 Ga. at 304; accord Cannon, 174 Ga. App. at 820.

       207 Ga. App. 387 (427 SE2d 857) (1993).

        See id.

        See id.

        See id. at 388.

        See id.

        See id. at 390 (1).

         Id.

         Although Prejean informed Burdette that they did not have a “safety rope” for him to hold, it is unclear whether Burdette was aware that he lacked necessary equipment or that he used the wrong tag line.

        Carroll, 169 Ga. at 342 (1) (emphasis supplied); accord Wilbro, 207 Ga. App. at 390 (1); Roy, 261 Ga. at 304; Cannon, 174 Ga. App. at 821.

       A former Chandler employee, who had worked with Burdette as the “crew chief,” testified that they had climbed together, and Burdette had done controlled descents with him. He further testified that anyone who climbed towers with him, including Burdette, had been taught how to do a controlled descent.

        See supra footnote 29.

       Some judges of this Court may question whether our Supreme Court’s interpretation of OCGA § 34-9-17 (a)’s predecessor statute in Aetna Life Ins. Co. v. Carroll — -which was substantively indistinguishable from the current one — is consistent with the plain meaning of that statutory provision’s text. Nevertheless, until such time as our Supreme Court reconsiders its holding in that case, we are bound by it. See Ga. Const., art. VI, § VI, ¶ VI (1983) (“The decisions of the Supreme Court shall bind all other courts as precedents.”); State v. Smith, 308 Ga. App. 345, 352 (1) (707 SE2d 560) (2011) (“[T]he doctrine of stare decisis prohibits this Court from ignoring the valid precedent of a higher court.”); State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010) (“Stare decisis is an important principle that promotes the rule of law....”); see also Kurt T. Lash, Originalism, Popular Sovereignty, and Reverse Stare Decisis, 93 Va. L. Rev. 1437, 1454 (2007) (noting that “[v] ertical stare decisis refers to the binding effect of precedent on lower courts,” and that “[sjerious rule of law costs would follow if lower courts were free to ignore precedent established by a higher court of appeal”).

        See supra footnote 20.

        See Wilbro, 207 Ga. App. at 387-88, 390 (1) (holding that an employee, who was injured after falling from shelves that she was expressly instructed not to step on, did not commit willful misconduct such that she was barred from recovering workers’ compensation benefits, as her conduct was not criminal or quasi criminal in nature); see also Lumbermens Mut. Cas. Co. v. Amerine, 139 Ga. App. 702, 703-04 (229 SE2d 516) (1976) (affirming the ALJ’s determination that a salesman, who was injured while doing “wheelies” on a bicycle in a warehouse during the course of his work duties, engaged in hazardous conduct where the possibility of danger was obvious, but such conduct did not constitute willful misconduct such as to bar recovery); City of Atlanta v. Madaris, 130 Ga. App. 783, 783, 785 (2) (204 SE2d 439) (1974) (holding that graveyard watchman’s “unwise” use of a loaded firearm to hammer an engine part on the vehicle he used to patrol the graveyard, which resulted in his death, did not constitute willful misconduct such as to bar his widow’s recovery of workers’ compensation benefits). Cf. Cannon, 174 Ga. App. at 822 (holding that a widow of an employee who was killed in an accident when he had a blood alcohol level of 0.23 percent and was driving the wrong way down the interstate was barred from receiving workers’ compensation benefits because his death was due to his own willful misconduct); Liberty Mut. Ins. Co. v. Bray, 136 Ga. App. 587, 587-88, 590 (222 SE2d 70) (1975) (holding that an employee who was injured while illegally “jaywalking” across a highway was barred from receiving workers’ compensation benefits due to his own willful misconduct).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A15A1490.
    SUMMER et al. v. SECURITY CREDIT SERVICES, LLC.
    (779 SE2d 124)
   Miller, Judge.

Security Credit Services, LLC (“Security Credit”), filed suit against Debbie and Robin Summer to collect on a credit card debt owed by the Summers. The Summers answered and also filed counterclaims under the Fair Debt Collection Practices Act (“FDCPA”), 15 USC § 1692 et seq., and the Georgia Fair Business Practices Act (“GFBPA”), OCGA § 10-1-390 et seq. The parties filed cross-motions for partial summary judgment on the Summers’ counterclaims, and the trial court granted Security Credit’s motion and denied the Summers’ motion. On appeal, the Summers contend that the trial court erred in granting summary judgment to Security Credit and denying their motion for summary judgment. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant or denial of summary-judgment de novo, construing the evidence in favor of the nonmovant.

(Citations and punctuation omitted.) Wirth v. Cach, LLC, 300 Ga. App. 488, 488-489 (685 SE2d 433) (2009).

So viewed, the evidence shows that in August 2006, Wells Fargo Bank, N.A. (“Wells Fargo”) issued a credit card to the Summers, who thereafter used the credit card to purchase goods and services. The Summers subsequently defaulted on the credit card account.

In April 2011, Security Credit and Wells Fargo executed a “Flow Agreement for Purchase and Sale of Charged-Off Accounts” (“Purchase Agreement”). The Purchase Agreement provided that beginning in April 2011, and continuing monthly for six months, Security Credit would purchase a list of accounts generated by Wells Fargo. Pursuant to the Purchase Agreement, Security Credit bought the Summers’ credit card account on or about June 24, 2011. The Summers had an outstanding balance of $15,581.21 at the time. In July 2011, Security Credit sent its first correspondence to the Summers informing them that Security Credit was attempting to collect on the Wells Fargo credit card account.

In December 2012, Security Credit filed the instant lawsuit, seeking to recover the outstanding balance of $15,581.21, plus court costs. In February 2013, after filing suit, but before serving the Summers with the complaint, Security Credit’s counsel sent a letter to the Summers informing them that they owed Security Credit $15,787.21, or $206 more than was listed in the complaint, and that Security Credit was willing to settle their debt for a reduced amount. There is no dispute that the additional $206 included the court cost for filing the complaint.

1. On appeal, the Summers contend that the trial court erred in granting summary judgment to Security Credit and denying their motion for summary judgment because, as a matter of law, Security Credit’s actions violated the FDCPA. We disagree.

The [FDCPA] was enacted by Congress to eliminate abusive debt collection practices by debt collectors and to protect consumers against debt collection abuses. . . . The [FDCPA] provides a civil cause of action against any debt collector who fails to comply with the requirements of the Act[.]

(Citations and punctuation omitted.) Arrow Financial Svcs. v. Wright, 311 Ga. App. 319, 322 (2) (715 SE2d 725) (2011).

The FDCPA forbids a debt collector from collecting “any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15USC § 1692f(l). The FDCPA also prohibits a debt collector from using any false, deceptive, or misleading representation or means in connection with the collection of any debt, including “false representation of . . . the character, amount, or legal status of any debt[.]” 15 USC § 1692e (2) (A). A debt collector is also prohibited from using any false representation or deceptive means to collect or attempt to collect any debt, 15 USC § 1692e (10), and may not use unfair or unconscionable means to collect or attempt to collect any debt, 15 USC § 1692f. The test for whether a debt collector’s conduct is “deceptive,” “misleading,” “unconscionable,” or “unfair” under the FDCPA is not whether the particular plaintiff-consumer was deceived or misled; but rather, “whether the ‘least sophisticated consumer ’ would have been deceived by the debt collector’s conduct.” (Citations and punctuation omitted.) Crawford v. LVNV Funding, 758 F3d 1254, 1258 (II) (11th Cir. 2014).

(a) The Summers contend that Security Credit misrepresented that it was validly assigned their Wells Fargo credit card account. The Summers do not claim on appeal that any representation made directly by Security Credit regarding the assignment is actionable under the FDCPA. Rather, the Summers argue that Security Credit filed affidavits containing false statements regarding the date of the assignments and that the filing of these allegedly false affidavits was actionable under 15 USC § 1692e. Their claim has no merit.

A debt collector’s false or misleading representation must be “material” in order for it to be actionable under § 1692e of the FDCPA. See, e.g., Donohue v. Quick Collect, 592 F3d 1027, 1033 (II) (B) (9th Cir. 2010); Hahn v. Triumph Partnerships, 557 F3d 755, 758 (7th Cir. 2009); Miller v. Javitch, Block & Rathbone, 561 F3d 588, 596 (II) (B) (6th Cir. 2009). The purpose of the FDCPAis to “provide information that helps consumers to choose intelligently, and by definition immaterial information neither contributes to that objective (if the statement is correct) nor undermines it (if the statement is incorrect).” Hahn, supra, 557 F3d at 757-758. “If a statement would not mislead the unsophisticated consumer, it does not violate the FDCPA— even if it is false in some technical sense.” Wahl v. Midland Credit Mgmt., 556 F3d 643, 645-646 (7th Cir. 2009). With these principles in mind, we address the Summers’ claims regarding the assignment.

(i) The Summers first challenge the assignment based on purported inconsistent statements regarding the date Wells Fargo “charged-off’ the Summers’ account. The Summers argue that the June 24, 2011 “Bill of Sale” shows a “charge-off” date of April 15,2011, whereas an affidavit from Robert Larson, a Wells Fargo sales liaison, averred that the date was April 30, 2011. Contrary to the Summers’ argument, the cited “Bill of Sale” language refers to the date of the Purchase Agreement, not the date of the “charge-off.” Thus, the Summers have not demonstrated that there is anything false about the “Bill of Sale” language.

(ii) The Summers next challenge the validity of the assignment based on inconsistent statements regarding its date. In particular, the Summers challenge the veracity of the “Affidavit of Sale” prepared by Carla Hawkins, a Wells Fargo employee, because she swore to events that had not yet occurred, and she lacked personal knowledge about the events since she did not review any individual records or statements. Similarly, the Summers challenge the averment of Wells Fargo employee Larson that the assignment occurred on June 27, 2011, because he did not confirm that the assignment actually transpired that day.

Even assuming that one of the Wells Fargo employees provided a false statement by reporting that the assignment transpired on June 24, 2011, when it actually occurred on June 27, 2011, or vice versa, the Summers have not alleged, much less shown, that they — or anyone else — were “misled, deceived, or otherwise duped” by the different dates given for the assignment. See Miljkovic v. Shafritz & Dinkin, P.A., 791 F3d 1291, 1307 (III) (B) (2) (11th Cir. 2015) (false statements were not actionable under FDCPA where there was no proof that the statements “misled, deceived, or otherwise duped” any consumer).

In support of their argument that the filing of the Wells Fargo affidavits was actionable under 15 USC § 1692e, the Summers rely on Midland Funding v. Brent, 644 FSupp.2d 961, 970 (III) (A) (3) (N.D. Ohio 2009), which held that a debt collector, who claimed to have been assigned the consumer’s credit card account, made material false statements that he had personal knowledge of the consumer’s debt. Unlike the consumer in Midland, who claimed that she was unaware of any obligation owed to the credit card issuer, the Summers readily admitted that they had a credit card account with Wells Fargo, and that they owed a monetary obligation on that account. See id.

Moreover, Security Credit not only presented the statements from the Wells Fargo employees, but it also presented an affidavit and deposition testimony from a company vice president who confirmed that the Summers’ credit card account was assigned to Security Credit. The Summers presented no evidence contradicting the fact that the assignment transpired in June 2011, and they presented no evidence that the different reported dates for the assignment frustrated their ability to intelligently choose their response. See Donohue, supra, 592 F3d at 1034 (II) (B) (“In assessing FDCPA liability, [courts] are not concerned with mere technical falsehoods that mislead no one, but instead with genuinely misleading statements that may frustrate a customer’s ability to intelligently choose his or her response.”) (citation omitted). Therefore, the Summers’ FDCPA claim based on the filing of the subject affidavits fails.

(b) The Summers also contend that the February 2013 letter sent by Security Credit notifying them that it was willing to settle their debt for a reduced amount violated 15 USC §§ 1692e and 1692f. Specifically, the Summers argue that Security Credit misrepresented that they owed Security Credit $15,787.21, because the amount owed on the credit card account was $15,581.21, a difference of $206. The Summers rely on the fact that when the February 2013 letter was sent, they had not been served Security Credit’s complaint, the filing of which occurred in December 2012 and cost $206. Their argument has no merit.

The FDCPA requires that debt collectors state “the amount of the debt” that they are seeking to collect from the consumer. 15 USC § 1692g (a) (1). The debt collector’s letter must state the amount of the debt “clearly enough that the recipient is likely to understand it.” Chuway v. Nat. Action Financial Svcs., 362 F3d 944, 948 (7th Cir. 2004). The FDCPA prohibits a debt collector from using any “unfair or unconscionable means to collect or attempt to collect any debt” including “[t]he collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 USC § 1692f (1). When a debtor has contractually agreed to pay attorney fees and collection costs, however, a debt collector does not violate the FDCPA by stating those fees and costs and including those amounts in the collection letter. See Fields v. Wilber Law Firm, 383 F3d 562, 565 (I) (A) (7th Cir. 2004).

Here, Security Credit’s demand that the Summers pay its court costs was based on language in the Wells Fargo credit card agreement providing, “To the extent not prohibited by law, if you are in default, you agree to pay our collections costs, attorney’s fees and court costs incurred in enforcing our rights under this Agreement.” Based on this plain, unambiguous language, the Summers agreed to pay court costs incurred for collection efforts on a defaulted account. Accordingly, Security Credit did not violate the FDCPA by including those amounts in the February 2013 letter. Fields, supra, 383 F3d at 565 (I) (A).

The Summers nevertheless argue that the additional $206 amount sought by Security Credit for court costs violated the FDCPAbecause it was not separately itemized. In support of their argument, the Summers rely on Fields, which held that the plaintiffs sufficiently stated an FDCPA claim to survive a motion to dismiss because the debtor’s failure to itemize or segregate attorney fees authorized by contract “could be construed as falsely stating the amount of debt,” and “could conceivably mislead an unsophisticated consumer.” (Emphasis supplied.) Fields, supra, 383 F3d at 565-566 (I) (A), (B). Compare Singer v. Pierce & Assoc., P.C., 383 F3d 596, 598 (I) (7th Cir. 2004) (where a debt collector itemizes or segregates the court costs or attorney fees in the collection letter, there is no FDCPA violation); Shapiro v. Riddle & Assocs. P.C., 351 F3d 63, 64 (2d Cir. 2003) (same).

While the plaintiffs in Fields could rely only on the allegations in their complaint to defeat a motion to dismiss, the Summers could not. In moving for summary judgment on the Summers’ counterclaims, Security Credit argued that there was an absence of evidence establishing an FDCPA violation because the Summers made only a cursory allegation.

A defendant who will not bear the burden of proof at trial need only show an absence of evidence to support an essential element of the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations and punctuation omitted.) Adamson v. Gen. Electric Co., 303 Ga. App. 741, 744 (3) (694 SE2d 363) (2010). Thus, even assuming that Security Credit’s failure to itemize the court costs in the February 2013 letter was a false statement, the Summers had to point to specific evidence that the omission was material in order to have an actionable FDCPA claim. See, e.g., Donohue, supra, 592 F3d at 1033 (II) (B). They have failed to do so.

Decided November 16, 2015

Reconsideration denied December 8, 2015

Robert W. Hughes, Jr., Shawn A. Owen, for appellants.

McCullough, Payne & Haan, Jeremy T. McCullough, Gregson T. Haan, David A. Kleber, for appellee.

For purposes of this appeal, the Summers neither dispute the amount owed on the credit card account ($15,581.21), nor the amount of the court costs ($206). Since the total amount claimed to be owed has not been refuted, Security Credit’s omission in the February 2013 letter was not material. See Hahn, supra, 557 F3d at 757 (challenged statement about character of debt was not material where the total amount due was not disputed because “[a] dollar due is a dollar due.”); Donohue, supra, 592 F3d at 1034 (II) (B) (although complaint mis-characterized the debt, the total amount due was correct, and the consumer did not “articulate [ ] any different action she might have chosen” if the complaint properly and accurately segregated the nature of the debt). Compare Lox v. CDA, Ltd., 689 F3d 818, 820-821 (I), 827 (II) (7th Cir. 2012) (collection letter stating debtor could owe attorney fees if legal action were taken to collect debt — i.e., before lawsuit commenced — was material statement because the risk of having to pay attorney fees would have influenced debtor’s decision to contest the debt). Consequently, the trial court did not err in granting summary judgment to Security Credit and denying the Summers’ motion for summary judgment on their counterclaims.

2. The Summers concede that their GFBPA state-law claims are based on alleged FDCPA violations. Having concluded that the Summers’ FDCPA claims fail as a matter of law, they cannot prevail on their state-law claims either.

Judgment affirmed.

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

       The Summers had also counterclaimed that Security Credit violated the Telephone Consumer Protection Act (“TCPA”), but they dismissed this counterclaim without prejudice.

       Hawkins signed the Affidavit of Sale on June 21,2011, attesting that the sale transpired on June 24, 2011. Hawkins deposed that she often needed to sign sales affidavits before the anticipated sale date because such affidavits were part of the sales file that needed to be reviewed and approved by other parties, often in different states, before finalizing the sale. She also deposed that, in her experience at Wells Fargo, none of the scheduled sales ever had to be postponed or rescheduled. While Hawkins testified that she did not personally review the Summers’ credit card statements, she did not make any statements about the particulars of their account in the Affidavit of Sale, other than the fact that it was sold to Security Credit.

       Larson admitted that Security Credit represented to him that the sale occurred on June 27 when it requested an affidavit of debt to show that the Summers’ account was in default. He testified, however, that the date represented was within the general time-frame of the sale because he examined documentation showing a “cutoff date” of June 17,2011 for the Summers’ account, meaning that a sale was pending, and that the actual sale would generally be completed within five or six business days. Further, the Purchase Agreement provided that on or prior to each cutoff date, which was defined as five business days prior to the monthly closing date, Wells Fargo was to provide Security Credit with a schedule of the accounts that were to be sold.


author: McFadden, Judge.

text:
    A15A0943.
    FITZPATRICK v. HYATT CORPORATION.
    (779 SE2d 110)
   McFadden, Judge.

Kimberly Fitzpatrick filed this premises liability action to recover for injuries she sustained when she fell off a stage at a conference she was attending at the Hyatt Regency in Savannah. The trial court granted Hyatt summary judgment. On appeal, Fitzpatrick argues that whether Hyatt knew of the stage’s unsafe configuration and whether Fitzpatrick exercised ordinary care for her own safety are questions of fact that preclude summary judgment. She also argues that the trial court erred in applying a “heightened sense of awareness” standard of care. Finally she argues that the trial court erred by failing to consider whether Hyatt had a duty to install railings or other safety measures when assembling the stage. We agree with Fitzpatrick that whether Hyatt knew of the stage’s unsafe configuration and whether Fitzpatrick exercised ordinary care for her own safety are fact questions. Accordingly, we reverse Hyatt’s grant of summary judgment. We reject Fitzpatrick’s other arguments.

1. Facts.

In order to survive a defendant’s summary judgment motion,

a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff’s injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one’s personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted from the defendant’s own actions or conditions under the defendant’s control.

American Multi-Cinema v. Brown, 285 Ga. 442, 444-445 (2) (679 SE2d 25) (2009) (citation omitted).

Viewed in a light most favorable to Fitzpatrick, the evidence shows that she injured herself while attending a conference of the Southern Early Childhood Association at the Hyatt Regency in Savannah. One of the sessions at the conference featured an entertainer, Don Monopoli, who invited audience members up on the stage. Fitzpatrick volunteered and climbed the stage. She was listening to the entertainer, facing outward toward the audience, when another woman began to leave the stage. Fitzpatrick stepped back to allow the other woman to pass and fell off the stage, injuring her neck and upper back.

The stage was two feet high. At the time of Fitzpatrick’s fall, the stage was configured as a rectangle with a rectangular-shaped area cut out of the back corner. Fitzpatrick was standing directly in front of the cutout section and fell when she stepped backward into the area where there was no stage. Marquis Dillard, the Hyatt’s banquet manager, and other Hyatt employees assembled the stage in the hotel ballroom using components called risers. They set up the stage as a rectangle using the modular risers. At some point, Don Monopoli, the entertainer, asked to have the stage split into two smaller stages, and Dillard did so. But Dillard testified that he did not configure the stage to have the cutout section in the back. He also testified that as banquet manager, he would have been notified had another Hyatt employee changed the configuration, but he was never alerted that any changes had been made. When shown a drawing of the stage as described by Fitzpatrick — the rectangle with the rectangular cutout — he testified that it was possible to configure the stage into that shape, but they would never configure a stage to leave a gap in the back because it was unsafe; they always squared off the risers to be even on all sides. Monopoli, the entertainer, did not remember how the stage was configured, but he did not personally change the configuration nor did he recall whether he asked anyone to change it. 2. Questions of fact.

To recover for injuries sustained in a fall,

[t]he plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control.

American Multi-Cinema, 285 Ga. at 444 (2).

(a) Hyatt’s knowledge.

Hyatt argues that the evidence establishes that it did not have superior knowledge of the hazardous configuration because it did not set up the stage in the configuration alleged by Fitzpatrick. It relies on the testimony of Dillard, the banquet manager, that he did not construct the stage in its unsafe configuration and that he would have been notified had another Hyatt employee done so. That evidence goes to Hyatt’s actual knowledge of the hazard, and Fitzpatrick has not come forward with direct evidence to create a fact question on the issue of Hyatt’s actual knowledge. However, Fitzpatrick has presented some evidence from which a factfinder could conclude that Hyatt had constructive knowledge of the hazard.

To show Hyatt’s constructive knowledge, Fitzpatrick could

show[ either] that an employee was positioned in the immediate vicinity and had the opportunity and means to discover and remove the hazard ... [or] that the alleged hazard was present for such a length of time that it would have been discovered had the proprietor exercised reasonable care in inspecting the premises.

Osman v. Olde Plantation Apartments, 270 Ga. App. 627, 631 (1) (607 SE2d 236) (2004) (citation and punctuation omitted).

Here, Dillard’s uncontradicted testimony established that he did not configure the stage to have the cutout section in the back. But it is likewise undisputed that at the time of Fitzpatrick’s fall, the stage was configured as a rectangle with a rectangular-shaped area cut out of the back corner. Hyatt, through Dillard’s testimony, acknowledged that this configuration was unsafe. There is no evidence explaining who reconfigured the stage or when it was reconfigured. Fitzpatrick presented evidence that Hyatt employees set up the sound system on the stage and that she fell after the session had begun, after Monopoli had sung several songs, after the volunteers had sung, and after Monopoli had begun telling a story, all while the stage was set up in the hazardous configuration. From this evidence a factfinder could conclude that Hyatt had the means and opportunity to discover and remedy the hazardous configuration, or would have discovered the hazardous configuration had it exercised reasonable care in inspecting the premises and stage. See Smith v. Tenet HealthSystem Spalding, 327 Ga. App. 878, 881 (2) (761 SE2d 409) (2014). Hyatt, as the movant on summary judgment, failed to negate this theory of liability. See Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 4 (1) (432 SE2d 230) (1993).

(b) Fitzpatrick’s exercise of reasonable care for her own safety. Fitzpatrick argues that whether she exercised reasonable care for her own safety is a question for jury resolution. We agree. “[H]ow vigilant patrons must be for their own safety in various settings, and where customers should be held responsible for looking or not looking are all questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law.” American Multi-Cinema, 285 Ga. at 445 (2).

Fitzpatrick testified that it was possible that had she looked “way back to [her] left,” she might have seen the cutout section through which she fell, but on the stage was a table with musical equipment that blocked her peripheral view to her left. Had she looked to her right, she would not have seen the cutout section because there was no cutout section on that side; instead the stage extended back on her right. Fitzpatrick testified that had she turned around 180 degrees and faced the back of the stage, “it [was] possible that more than likely [she] would [have seen] that the stage was not there.” Whether the exercise of reasonable care required Fitzpatrick to turn around 180 degrees before she moved out of the way of another person leaving the stage is a question for resolution by the factfinder.

Decided November 4, 2015

Reconsideration denied December 9, 2015

Brooks Law Office, Eugene C. Brooks IV, for appellant.

Oliver Maner, Patrick T. O’Connor, Benjamin M. Perkins, for appellee.

The cases cited by Hyatt are distinguishable. In Keister v. Creative Arts Guild, 139 Ga. App. 67 (227 SE2d 880) (1976), we affirmed the grant of summary judgment to a defendant when the plaintiff stepped backward and fell off an elevated stage or platform at an art exhibit. In Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47 (183 SE2d 7) (1971), we reversed the denial of the defendant’s motion for summary judgment. There, the plaintiff was injured when she entered an altar area of a funeral home chapel from a side door, stepped backward to see some flowers better, and fell to the chapel floor six inches below. Neither Keister nor Herschel McDaniel involved an admittedly hazardous condition as does the instant case.

But we reject Fitzpatrick’s argument that the trial court erroneously imposed a heightened duty of care upon her. In its summary judgment order, the trial court wrote, “Common sense dictates a heightened sense of awareness of a potential hazard when a person is standing on a raised platform.” That observation is unexceptionable. As noted above, whether Fitzpatrick exercised reasonable care for her own safety is an issue for the factfinder.

3. Hyatt’s failure to install safety railings.

We agree with Hyatt that Fitzpatrick has not shown that Hyatt had a duty to install safety railings. See Keister, 139 Ga. App. at 67.

Judgment reversed.

Ellington, P. J., and Dillard, J., concur.


author: Boggs, Judge.

text:
    A15A1032.
    HALL v. HALL.
    (780 SE2d 787)
   Boggs, Judge.

Keith Hall, the father of 18-year-old L. H. and 16-year-old Z. H., appeals from both a temporary order and a final order modifying child support, finding him in contempt, and awarding Felice Hall attorney fees. Keith contends that the trial court erred by (1) finding him in contempt for failing to pay child support, (2) awarding attorney fees without specifying a statutory or factual basis for such an award, (3) granting a temporary modification of child support without setting forth the specific information requiredby OCGA § 19-6-15 (c) (2), and (4) awarding temporary attorney fees pursuant to OCGA § 19-6-15 (k) (5). We granted Keith’s application for discretionary review, and, for the reasons explained below, we affirm the contempt finding and the temporary modification rulings, but we vacate the award of attorney fees in the final order and remand the case with direction.

There does not appear to be any dispute regarding the underlying facts in this case. The record shows that L. H. and Z. H. were born out of wedlock, but Keith legitimated both children. The children’s mother, Joanne Dean, consented to the placement of the children with Felice, Keith’s former sister-in-law, and is not a party to this appeal. The minor children have been the subject of numerous court orders, and, except for a period between 2002 and 2004, they have lived with Felice since 2000. On July 6, 2001, Keith was ordered to pay child support in the amount of $112 per child per month through Child Support Enforcement. Keith was found to be in contempt of the child support order on April 11, 2002, and once again the court ordered him to pay $112 per child per month through Child Support Enforcement. Felice was granted final legal custody and control of the children on March 28, 2005. At some point in 2010 or 2011, Felice opened a case with Child Support Services to collect child support. As a result, Child Support Services initiated collection activities, including interception of a tax refund due to Keith and enforcement of an income deduction order against his wages.

In 2012, Keith filed a motion to modify the previous court orders to obtain custody of or reasonable visitation with the children, and the court entered an order allowing some limited visitation. Keith also filed a petition for legal and equitable relief from the child support order, arguing, in part, that Felice used fraudulent and deceitful means to obtain child support from him. Felice denied the allegations and filed a counterclaim for modification of child support and necessaries, including a request for attorney fees incurred in connection with the action. She subsequently amended her counterclaim to add a count for contempt and requested attorney fees pursuant to OCGA §§ 9-15-14 and 19-6-2 based on the costs incurred to enforce the prior court orders for child support.

On March 21,2013, the trial court considered Felice’s request for a temporary modification of child support and entered an order modifying the award of child support to $509 per month. The trial court also awarded Felice attorney fees in the amount of $1,080. On September 23, 2013, the trial court dismissed Keith’s petition based on his failure to comply with discovery requests or appear at a hearing to explain his noncompliance. It does not appear that this order was ever appealed. Thereafter, on June 16,2014, the trial court entered a final order awarding Felice child support in the amount of $498 per month. The court further found Keith in contempt of previous court orders requiring him to pay child support, and it awarded Felice arrearage amounts and attorney fees.

1. Keith contends the trial court erred in finding him in contempt of court for failing to pay $19,077.03 in past due child support based on the original child support obligation obtained by Child Support Services and the subsequent temporary order in this action. According to Keith, Felice lacks standing to enforce the original child support order because she was never a party to the order or actions. He also suggests that Felice did not have the authority to request a “modification” of the original court order. We disagree.

First, Keith fails to cite any statute or case law suggesting that Child Support Services is the only entity entitled to enforce child support orders originally obtained by Child Support Services. In fact, the law suggests the opposite. Although Felice was not a party to the action when Child Support Services obtained the original child support order on behalf of the minor children in 2001, case law supports the argument that she has standing to enforce and modify the original child support order as the legal and physical custodian of the minor children. See generally Monroe v. Taylor, 259 Ga. App. 600 (577 SE2d 810) (2003) (affirming trial court’s order awarding increase in child support to custodial parent when original award made to Department of Human Resources in child support recovery action).

Statutory authority also supports the conclusion that Felicé has standing to pursue a modification of child support or a finding of contempt based on Keith’s failure to pay child support pursuant to a previous court order. Under OCGA § 29-2-22 (a) (3), as the children’s guardian, Felice is authorized to “[b]ring, defend, or participate in legal, equitable, or administrative proceedings,... as are appropriate for the support, care, education, health, or welfare of the minor in the name of or on behalf of the minor.” In addition, OCGA § 19-6-15 (e) permits a nonparent custodian to enforce the child support provisions in that subsection. And OCGA § 19-6-35 (a) defines child support obligors and obligees as follows:

(1) “Child support obligee” means an individual to whom the payment of a child support obligation is owed and includes a custodial parent or caretaker of a child to whom such support obligation is to be paid or a governmental agency entitled by law to enforce a child support obligation on behalf of such parent, caretaker, or child.
(2) “Child support obligor” means an individual owing a duty of support to a child or children, whether or not such duty is evinced by a judgment, order, or decree.

Here, Keith is the child support obligor, and Felice is the child support obligee. As an obligee under a judgment requiring the payment of child support, Felice may pursue available remedies for enforcing the judgment, singly or concurrently with Child Support Services, until the judgment is satisfied. See Baars v. Freeman, 288 Ga. 835, 839 (2) (a) (708 SE2d 273) (2011); Dept. of Human Resources v. Chambers, 211 Ga. App. 763, 766 (2) (441 SE2d 77) (1994) (mother permitted to file contempt against father ordered to pay child support through DHR).

“A trial court’s ruling on a contempt motion will be affirmed if there is any evidence to support it.” (Citation omitted.) Baars, supra, 288 Ga. at 838 (2). In this case, Keith legitimated the children and acknowledges that a child support order was entered. He has failed to demonstrate that Felice, as the children’s guardian, lacks standing to pursue a contempt action based on his failure to pay child support pursuant to the previously entered court orders. The trial court’s order finding him in contempt is therefore affirmed.

2. Keith argues that the trial court erred in awarding attorney fees without specifying a statutory or factual basis for the award. We are constrained to agree.

“As a general rule, Georgia law does not provide for the award of attorney fees even to a prevailing party unless authorized by statute or by contract.” (Citation and punctuation omitted.) Cothran v. Mehosky, 286 Ga. App. 640, 641 (649 SE2d 838) (2007). Here, Felice sought attorney fees under both OCGA §§ 19-6-2 and 9-15-14. However, in its order granting Felice’s temporary modification of child support, the trial court awarded attorney fees “in accordance with [OCGA] § 19-6-15,” and in its final order, the trial court failed to specify any statutory basis for the award: “Additionally, the Court awards the previous attorney’s fees in the amount of $380.00 [which] were awarded in the prior Order. Additionally, the Court awards $5,000.00 in attorney’s fees to the Respondent as part of the attorney’s fees incurred in bringing this action.”

Georgia appellate courts have repeatedly held:

When there is more than one statutory basis for the attorney-fee award and neither the statutory basis for the award nor the findings necessary to support an award is stated in the order and a review of the record does not reveal the basis of the award, the case is remanded for an explanation of the statutory basis for the award and the entry of any findings necessary to support it.

(Citations omitted.) Viskup v. Viskup, 291 Ga. 103, 106 (3) (727 SE2d 97) (2012) (court may review record to determine statutory basis of attorney fees order); see also Blumenshine v. Hall, 329 Ga. App. 449, 454 (5) (765 SE2d 647) (2014). The final order in the present case does not cite a statutory basis for the award or track any statutory language, so we must look to the record to see if it reveals the basis of the award.

We first turn to the two attorney fees statutes specified by Felice in her counterclaim: OCGA §§ 19-6-2 and 9-15-14.

OCGA § 19-6-2 (a) (1) authorizes the grant of attorney fees in a divorce action within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney[ ] fees, if any, to be allowed against either party. OCGA § 9-15-14 (b) authorizes an award of reasonable and necessary attorney fees upon a finding that an action or any part thereof lacked substantial justification, was interposed for delay or harassment, or an attorney or party unnecessarily expanded the proceeding by other improper conduct. The purpose of an award of attorney fees pursuant to § 19-6-2 is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved. The damages authorized by § 9-15-14 are intended not merely to punish or deter litigation abuses but also to recompense litigants who are forced to expend their resources in contending with abusive litigation.

(Citations and punctuation omitted.) Moon v. Moon, 277 Ga. 375, 378 (6) (589 SE2d 76) (2003). Felice is not entitled to attorney fees based on OCGA § 19-6-2 because this case does not involve an action for “alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case.” OCGA § 19-6-2 (a); see Viskup, supra, 291 Ga. at 107 (3) (OCGA § 19-6-2 not applicable in an action seeking modification of child custody); Cothran, supra, 286 Ga. App. at 641 (OCGA § 19-6-2 limited to alimony and divorce cases and subsequent actions for contempt based on noncompliance with divorce or alimony decree).

It does appear, however, that OCGA § 9-15-14 would be applicable and that the trial court could have used that statute as a basis for its award of attorney fees if the proceedings were deemed frivolous, as argued by Felice’s counsel during the final hearing, and fees are potentially warranted due to Keith’s failure to comply with discovery requests. Under OCGA § 9-15-14 (a), the court shall award fees against a party that “asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” Under OCGA § 9-15-14 (b), the court may award fees against a party that “brought or defended an action, or any part thereof, that lacked substantial justification” or “unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures. . . .”

The trial court, however, cited OCGA § 19-6-15 to support its award of attorney fees in the order temporarily modifying child support. OCGA § 19-6-15 (k) (5) states as follows:

In proceedings for the modification of a child support award pursuant to the provisions of this Code section, the court may award attorney’s fees, costs, and expenses of litigation to the prevailing party as the interests of justice may require. . . .

An award of attorney fees also appears to be appropriate under this statute despite the fact that Felice did not explicitly request attorney fees on this basis.

Because the record before us indicates two plausible statutory bases for the attorney fees award — OCGA § 9-15-14 or OCGA § 19-6-15 — and nothing in the record eliminates either statute as a basis of the award, it was incumbent upon the trial court to indicate which statute was relied upon in making its award. We therefore must vacate the award of attorney fees and remand the case for the trial court to articulate the statutory basis for its award. See O’Keefe v. O’Keefe, 285 Ga. 805, 806 (684 SE2d 266) (2009); Kuehn v. Key, 325 Ga. App. 512, 518 (2) (754 SE2d 103) (2014).

In addition to requiring a statutory basis for an award of attorney fees, appellate courts have repeatedly informed trial courts that they must set forth factual support for such an award. “[I]f a trial court fails to make findings of fact sufficient to support an award of attorney fees under either OCGA § 19-6-2or § 9-15-14, the case must be remanded to the trial court for an explanation of the statutory basis for the award and any findings necessary to support it.” (Citation and punctuation omitted.) Holloway v. Holloway, 288 Ga. 147, 150 (2) (702 SE2d 132) (2010); see also Cotting v. Cotting, 261 Ga. App. 370, 371 (1) (582 SE2d 527) (2003). It is well settled that

[i]f the court awards attorney fees under OCGA § 9-15-14, it must make express findings specifying the abusive conduct for which the award is made and whether the award is made under subsection (a) or (b) or both. If the court fails to make these findings, the fees award must be vacated and the case remanded for reconsideration.

Williams v. Becker, 294 Ga. 411, 413-414 (2) (a) (754 SE2d 11) (2014) (modification of child support case). And, even if the trial court’s award was made under OCGA § 19-6-15, “nothing in the language of [that] statute [ ] suggests that, in the context of a [modification] proceeding, a trial court may award an arbitrary amount of attorney fees based solely on speculation or guesswork.” (Citation and footnote omitted.) Jackson v. Sanders, 333 Ga. App. 544, 561-562 (6) (773 SE2d 835) (2015) (full concurrence in Division 6).

Here, the trial court failed to set forth the factual basis for its award of attorney fees. The record shows that Felice submitted an invoice from her attorney totaling $7,810. Her attorney confirmed that the balance of the attorney fees was in excess of $7,800, not including the final hearing, and he testified in his place that “[i]t’s been a long, hard case . . . [and the attorney fees] are fair and reasonable.” However, the appellate record does not contain any statement regarding the amount of fees attributable to the pursuit or defense of claims for which attorney fees are recoverable and what portion of the attorney’s time was spent on matters that are not recoverable, see Jackson, supra, 333 Ga. App. at 561 (6), or an explanation of how the trial court’s $5,000 award was calculated in relation to the $7,800 that Felice requested. See Williams, supra, 294 Ga. at 414 (2) (b). In addition, although there is evidence in the record that might support an award of some amount of fees to Felice under OCGA § 9-15-14, the court made no express findings specifying any abusive litigation conduct upon which such an award would be based or specifying whether the award was made under OCGA § 9-15-14 (a) or (b). See Williams, supra, 294 Ga. at 414 (2) (b).

Accordingly, we vacate the award of attorney fees in the final order and remand the case for the trial court “to reconsider this issue in accordance with this opinion, to state the statutory basis for any award and any necessary findings to support it, and to conduct an evidentiary hearing on the attorney fee issue” if warranted. (Citation omitted.) Blumenshine, supra, 329 Ga. App. at 454 (5).

3. Keith also argues that the trial court erred in granting a temporary modification of child support pursuant to OCGA § 19-6-15 (k) (4) without specifying the basis for the modification or setting forth the information required by OCGA § 19-6-15 (c) (2). However, this issue already has been decided adversely to Keith. In Baca v. Baca, 256 Ga. App. 514, 519 (4) (568 SE2d 746) (2002), this Court specifically found that “[OCGA] § 19-6-15 applies only to final verdicts or decrees, and this case involves a temporary... order.” Id. We held that since the order in that case awarded only temporary child support, the trial court was not required to engage in the detailed calculation set forth in OCGA § 19-6-15priortomakingits award. Id. Likewise, the Supreme Court held in Wilbanks v. Wilbanks, 238 Ga. 660, 661 (1) (234 SE2d 915) (1977), that findings of fact and conclusions of law are not required in temporary child support orders because the merits of the pending action are not at issue. Keith’s argument regarding the content of the temporary modification of child support order therefore is without merit, and the temporary order modifying child support is affirmed.

4. Keith also argues that the trial court erred in awarding attorney fees in conjunction with the temporary modification of his child support obligation. Unlike the attorney fee award in the final order in this case, the trial court specified in the temporary order modifying child support that it was awarding attorney fees in the amount of $1,080 “in accordance with [OCGA] § 19-6-15 after consideration of the facts and circumstances in this matter.” As stated in Division 2, that statute permits an award of attorney fees to the prevailing party in proceedings for the modification of a child support award “as the interests of justice may require.” OCGA § 19-6-15 (k) (5). Keith, however, contends that Felice cannot be considered a “prevailing part/’ because the child support modification was a temporary order. We disagree, and we find no error.

Decided November 19, 2015

Reconsideration denied December 9, 2015

James S. Lewis, for appellant.

Durden & Mills, Jonathan E. Mills, for appellee.

First, Keith fails to cite any case law which suggests that an award under OCGA § 19-6-15 (k) (5) is limited to final hearings or that a temporary order cannot establish a “prevailing party” for this purpose. Here, Felice clearly prevailed at the temporary hearing because she received an increase in child support from $224 per month ($112 per child) to $509 per month. Moreover, even if the trial court should have waited until the final hearing to determine the “prevailing party,” the temporary order does not require reversal at this time since Felice has now prevailed in the case pursuant to the final order which we affirm, and the issue is now moot. See generally Delgado v. Combs, 314 Ga. App. 419, 425 (1) (724 SE2d 436) (2012); Flowers v. Robinson, 157 Ga. App. 471, 472 (1) (a) (278 SE2d 38) (1981). This enumeration of error therefore is without merit.

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

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

       Felice had been married to Keith’s brother, but the two divorced before she obtained custody of the children.

       The trial court specifically noted in its order that it was not awarding child support arrearage to Felice for the time period when the children were not residing with her. Due in part to his incarcerations, Keith has never had a court order granting him custody of the children, though they briefly lived with him during some of the time they were not in Felice’s custody.


text:
    A15A1180, A15A1181.
    CITY OF ALBANY et al. v. PAIT; and vice versa.
    (780 SE2d 103)
   McFadden, Judge.

The City of Albany Fire Department terminated the employment of firefighter Joseph Pait after he pled guilty to two counts of theft. Pait appealed the termination to the city manager, who held an evidentiary hearing and affirmed the decision. Pait filed a petition for writ of certiorari in the superior court against the city, fire chief James Arrowood and deputy fire chief James Carswell. In the petition, Pait sought review of the city manager’s termination decision and also set forth several additional civil counts for damages and other relief. The superior court granted the writ, reversed the city manager’s decision, and reinstated Pait as a firefighter with back pay and benefits. The superior court granted summary judgment to the city, Arrowood and Carswell on all of Pait’s civil claims except for a procedural due process claim. The court awarded attorney fees to Pait pursuant to OCGA § 9-15-14, finding that the city, Arrowood and Carswell had, in numerous instances, acted without substantial justification in defending the termination decision.

In Case No. A15A1180, the city, Arrowood and Carswell appeal, arguing that the superior court erred in finding that there was no evidence supporting the city manager’s decision to terminate Pait’s employment and in finding a procedural due process violation. Because the termination decision was supported by some evidence and there was no procedural due process violation as Pait was given notice and a hearing pursuant to the city personnel ordinance, the superior court’s decision was erroneous and must be reversed. The city, Arrowood and Carswell further challenge the trial court’s lump sum award of attorney fees to Pait under OCGA § 9-15-14. Because such a lump sum award is not allowed without specific findings allocating fees to sanctionable conduct, the attorney fees award is vacated and the case is remanded with direction.

In Case No. A15A1181, Pait cross-appeals from the trial court’s grant of summary judgment to the city, fire chief and deputy fire chief on his various claims for civil damages and other relief. But because Pait has failed to show any error by the record, we affirm that ruling.

Case No. A15A1180

1. Sufficiency of the evidence.

The city, Arrowood and Carswell (“appellants”) assert that the superior court erred in holding that the city manager’s termination decision was not supported by sufficient evidence. We agree.

The appropriate standard of review to be applied to issues of fact on writ of certiorari to the superior court is whether the decision below was supported by any evidence. On appeal to this [c]ourt, our duty is not to review whether the record supports the superior court’s decision [,] but whether the record supports the initial decision of the local governing body or administrative agency. Neither the superior court nor this [c]ourt re weighs credibility determinations of the factfinder. In other words, because the factfinder in the initial proceedings is charged with weighing the evidence and judging the credibility of the witnesses, the superior court and this [c]ourt must view the evidence in the light most favorable to the factfinder’s decision and must affirm the decision if there is any evidence to support it, even when the party challenging the factfinder’s conclusions presented evidence during the initial proceedings that conflicted with those conclusions.

DeKalb County v. Bull, 295 Ga. App. 551, 552 (1) (672 SE2d 500) (2009) (citations, punctuation and emphasis omitted).

Viewed in the light most favorable to the city manager’s decision, the evidence presented at the termination hearing shows that in June 2002, the fire department received notice from the police department that Pait was suspected of theft. On December 19, 2003, Pait pled guilty to two misdemeanor counts of theft by taking and one misdemeanor count of criminal trespass. He was sentenced to a total of 24 months of probation and was given first offender treatment. On December 24, 2003, deputy chief Carswell, at the direction of Arrowood, sent a letter to Pait notifying him that his employment was being terminated for theft. The letter referenced Section V, Articles 2 and 7, of the fire department standards of conduct, which provide that causes for dismissal include, but are not limited to, conviction of a felony or crime of moral turpitude, and the theft or destruction of department or public property. The letter notified Pait that he could appeal the decision to the city manager, and Pait requested a hearing.

On February 6,2004, the city manager held the hearing, at which Pait appeared with counsel. At the hearing, Arrowood explained that because firefighters have access to other people’s property, the department holds its members to a high standard with regard to theft, and the department practice was to terminate any employee involved in theft regardless of whether there had been a conviction. With regard to the theft and criminal trespass charges to which he had pled guilty, Pait admitted that he had gone onto the property in question, taken a canoe and other items, sold the canoe for $200, and would have sold the other items but never had the chance. Despite his guilty pleas, Pait claimed that he had no criminal intent when he entered onto another’s property and took the items because he thought they were abandoned, and he presented his mother and two other witnesses to support this claim.

Ten days after the hearing, on February 16, 2004, the city manager issued her decision upholding the termination of Pait’s employment “based upon [Pait’s] admission that [he] did, knowingly and willingly remove property belonging to a private citizen without their consent.” Additionally, the city manager found that Pait’s conduct violated the fire department’s standards of conduct, and she particularly identified the same two standards that had been referenced in the department’s termination letter as Section V, Articles 2 and 7.

In reversing the city manager’s decision, the superior court found that it was not supported by any evidence because Pait’s guilty pleas to theft by taking were given first offender treatment and thus did not constitute convictions, and because the property taken by him was from a private citizen. Accordingly, the superior court concluded, there were no violations of either of the fire department standards cited by the city manager, one which required a conviction (Section V, Article 2) and the other which required theft or destruction of department or public property (Section V, Article 7). The superior court further found that those two standards provided the only basis in the record for the termination of Pait’s employment.

The superior court, for the reasons explained above, was correct in concluding that the two cited department standards of conduct did not support the termination. However, the court erred in finding that those were the only two grounds in the record that supported the city manager’s decision to terminate Pait’s employment. Section V, Article 1 of the department standards of conduct, which were introduced into evidence at the termination hearing, provides that a member may be dismissed “[f]or misconduct on the part of a member, on or off duty, which tends to degrade the member of the department.” Similarly, the city’s personnel ordinance, which also was introduced at the hearing, provides that the reasons for “dismissal [of an employee] include but are not limited to . . . [m]isconduct.”

Because the term “misconduct” is not defined in the department standards or city ordinance, “we therefore look to its plain and ordinary meaning as defined by dictionaries.” Mornay v. Nat. Union Fire Ins. Co. of Pittsburgh, 331 Ga. App. 112, 115 (3) (769 SE2d 807) (2015) (citation omitted). The term “misconduct” is defined as meaning “[b]ehavior not conforming to the prevailing standards or laws” and “[djeliberate wrongdoing.” American Heritage Dictionary of the English Language, Third Edition. Likewise, Black’s Law Dictionary, Revised Fourth Edition, defines “misconduct” as meaning “unlawful behavior” and “improper or wrong behavior,” and notes that “its synonyms are misdemeanor, misdeed, misbehavior[.]” Given the plain and ordinary meaning of “misconduct” as used in the department standards and the city ordinance, it is apparent that theft is the type of unlawful and improper behavior that supports dismissal of an employee.

And contrary to the superior court’s ruling, there was sufficient evidence to support the city manager’s finding that Pait had admitted to having committed theft. As recounted above, evidence of Pait’s guilty pleas to two counts of theft by taking was admitted at the hearing; and at that time, Pait was on probation for the offenses, having served less than two months of his 24-month probated sentence. While the superior court correctly found that the first offender pleas did not constitute convictions at the time of the termination hearing, see Humphreys v. State, 287 Ga. 63, 70 (4) (694 SE2d 316) (2010), they still constituted guilty pleas to the offenses of theft by taking that required successful completion of Pait’s probated sentences. “Unlike other probated sentences the [first offender] defendant is not merely serving his sentence outside the confines of prison, but is serving a period on probation to determine whether or not the prisoner maybe rehabilitated.” State v. Wiley, 233 Ga. 316, 318 (210 SE2d 790) (1974). First offender treatment

allows a defendant’s slate to be wiped clean for the purposes of recordation of a criminal conviction and its effect on civil rights or liberties after a defendant successfully fulfills the first offender terms. It does not prohibit restrictions on a defendant’s civil rights or liberties imposed during service of the first offender term.

Salomon v. Earp, 190 Ga. App. 405, 407 (379 SE2d 217) (1989) (emphasis in original), overruled in part on other grounds in Pender v. Witcher, 196 Ga. App. 856 (397 SE2d 193) (1990). Thus, the city manager was authorized to find that, at the time of the hearing, Pait’s guilty pleas, for which he was serving probated sentences, constituted admissions that he had committed the thefts.

In addition to the evidence of Pait’s guilty pleas to theft, Pait himself admitted at the termination hearing that he had taken the items in question from the property of another. While he claimed that he had done so because he thought the property was abandoned, the city manager, as the factfinder and judge of witness credibility, was authorized to reject Pait’s claim and conclude that he had in fact stolen the items. See Glass v. City of Atlanta, 293 Ga. App. 11, 14 (1) (666 SE2d 406) (2008) (civil service board authorized to discount petitioner’s evidence, to find the evidence against him more credible, and to affirm his termination). We note that the superior court, in its order reversing the city manager’s decision, improperly took on the roles of factfinder and judge of witness credibility by reweighing the evidence and concluding as a matter of fact that Pait, based on his claim that he thought the property was abandoned, did not have specific intent to commit theft.

Because there was evidence supporting the city manager’s finding that Pait had committed theft and that such misconduct warranted dismissal, “the superior court erred in [finding otherwise and] reversing the [city manager’s] decision affirming the termination of [Pait’s] employment.” DeKalb County, supra at 555 (1) (a).

2. Procedural due process.

The superior court also erred in finding that the city manager’s decision must be reversed because the fire department’s termination notice deprived Pait of procedural due process. “Procedural due process generally requires some type of hearing and some type of notice before termination of employment. [Cit.]” Bd. of Commrs. of Effingham County v. Farmer, 228 Ga.App. 819, 821 (1) (493 SE2d 21) (1997). Here, the department’s written notice expressly informed Pait that he was being terminated for theft and that he had the right to appeal the termination decision to the city manager in writing within ten days. A hearing before the city manager was then held pursuant to the city’s personnel ordinance. See Goddard v. City of Albany, 285 Ga. 882, 883 (1) (684 SE2d 635) (2009) (city’s personnel ordinance provides that certain employees below the rank of department head have the right to a “pre-termination” hearing and sets forth a procedure to request such a hearing). Pait appeared at the hearing with counsel, who questioned the fire chief regarding Pait’s termination for theft, presented evidence, and made arguments on Pait’s behalf. Because Pait received notice that he was being terminated for theft and had an evidentiary hearing before the city manager whose finding of theft as the basis for termination was supported by sufficient evidence, we find no procedural due process violation. Compare Sheppard v. DeKalb County Merit Council, 144 Ga.App. 115, 115-116 (2) (240 SE2d 316) (1977) (due process violation where notice specified hair length violation as sole reason for dismissal, but completely different grounds of absences and tardiness were only reasons cited for dismissal after evidentiary hearing).

3. Back pay and benefits.

Given our holdings above that the city manager’s termination decision was proper and should not have been reversed by the superior court, it follows that the superior court’s order awarding Pait back pay and benefits must also be reversed.

4. Attorney fees.

The superior court awarded Pait a lump sum of $111,590 as attorney fees under OCGA § 9-15-14 (a), (b). While the trial court’s order lists numerous purportedly sanctionable actions by appellants throughout the course of this case, the order does not indicate how the court apportioned the award of fees based on the supposedly improper conduct. “When awarding attorney fees under OCGA § 9-15-14, the trial court must limit the fees award to those fees incurred because of the sanctionable conduct. Thus, lump sum or unapportioned attorney fees awards are not permitted in Georgia.” Gibson Law Firm v. Miller Built Homes, 327 Ga.App. 688, 691 (3) (761 SE2d 95) (2014) (citations and punctuation omitted). Here, “[t]he trial court’s order fails to show the complex decision making process necessarily involved in reaching a particular dollar figure and fails to articulate why the amount awarded was [$111,590] as opposed to any other amount.” Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236, 243 (2) (d) (620 SE2d 463) (2005) (citation omitted). We therefore

vacate the [attorney fees] order in its entirety and direct the trial court, on remand, to reconsider all issues relating to that award, including whether [appellants] engaged in sanc-tionable conduct . . . and for appropriate factfinding with regard to the amount of attorney fees, if any, to be assessed.

Gibson Law Firm, supra at 691 (3) (citation omitted).

Case No. A15A1181

5. Summary judgment.

Pait claims that the trial court erred in granting summary judgment to the city, Arrowood and Carswell on all his state law claims such as slander, defamation, intentional infliction of emotional distress and negligent retention. But the only factual basis he asserts in his brief for any of the claims is that Arrowood and Cars-well made defamatory statements about him. While the statement of facts section of his brief recites various statements allegedly made by the parties and others, Pait has failed to specify which, if any, of these statements were supposedly defamatory. Moreover, he has completely failed to demonstrate by the record which evidence creates any genuine issue of material fact as to the necessary elements for each of his claims.

Our Rule 25 (c) (2) (i) requires that each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the [c]ourt will not search for or consider such enumeration. It is not the function of this [c]ourt to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.

Fleming v. Advanced Stores Co., 301 Ga.App. 734, 735 (688 SE2d 414) (2009) (citations, punctuation and emphasis omitted). Because Pait has failed to carry his burden of showing error in the record, we find no basis for reversal.

Judgment affirmed in Case No. Al 5A1181. Judgment reversed in part and vacated in part, and case remanded with direction in Case No. A15A1180.

Ellington, P. J., and Dillard, J., concur.

Decided November 18, 2015

Reconsideration denied December 9, 2015

Elarbee, Thompson, Sapp & Wilson, R. Read Gignilliat, for appellants.

Maurice L. King, Jr., for appellee.


author: BARNES, Presiding Judge.

text:
    A15A1224.
    MOLETTE v. CITY OF FOREST PARK et al.
    (780 SE2d 780)
   BARNES, Presiding Judge.

Cleve Lawrence Molette filed a pro se civil action alleging, among other things, civil rights violations under 42 USC § 1983 against the City of Forest Park, and Police Chief L. Dwayne Hobbs, and Sergeant Erik Kurtz, in their official and individual capacities (hereinafter “the City”)- Based on the City’s failure to file an answer, Molette subsequently filed a motion for default judgment against the City, which the trial court denied because Molette had served the City Attorney, who was not “an agent authorized to receive service of process” for the City. Molette then re-served all three parties individually with process, and the City filed an answer. Molette subsequently filed a motion to set aside the order denying his motion for default judgment in which he argued that his earlier service was perfected because the City Attorney was an authorized agent for purposes of service of process on the City. On October 13, 2014, the trial court denied the motion to set aside and in the same order, based the court’s conclusion that Molette still had not perfected service on the City, dismissed the complaint without prejudice.

Molette filed an application for discretionary review, which, on December 3, 2014, this Court granted upon finding that the trial court’s October 13 order was directly appealable under OCGA § 5-6-34 (a) (1), because it also dismissed Molette’s complaint. However, on December 4, the trial court entered a subsequent order in which it acknowledged that Molette had, in fact, perfected service upon the City when he re-served the City after filing his motion for default judgment, and rescinded the dismissal of the complaint. Molette appeals pro se from the original October 13 order, and contends that (1) the trial court erred in finding that the city attorney was not an authorized agent, (2) the trial court erred in finding that service was not perfected on an authorized agent, (3) the trial court erred in denying his motion for default judgment, and (4) the trial court erred in dismissing his case for lack of timely service.

Based on our review, and for the reasons that follow, we affirm the trial court’s denial of Molette’s motion to set aside the denial of his motion for default judgment and its finding that service of process upon the City Attorney was insufficient, but reverse the trial court’s order dismissing the action for insufficient service.

1. As noted, subsequent to its order dismissing Molette’s action for insufficient service of process, the trial court in its December 4 order determined that the City had been properly served after Molette filed his motion for default judgment, and rescinded the dismissal, but “not. . . the portion . .. denying [Molette’s] Motion to Set Aside Judgment pertaining to the denial of Default Judgment.” However, the order was entered after Molette filed his application for discretionary review. OCGA § 5-6-35 (h) provides that “[t]he filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.” The supersedeas of a filed application or notice of appeal “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).

Although the December 4 order was without effect, the City concedes that the evidence demonstrates that Molette had perfected service before the trial court dismissed his complaint. Accordingly, that portion of the trial court’s October 13 order dismissing Molette’s action is reversed.

2. Molette also contends that the trial court erred in finding that the City Attorney was not an agent authorized to receive service of process for the City, and therefore erred in denying his motion for default judgment. He appears to maintain that because the City Attorney is an “appointed” agent of city officials and designated by the city Charter to represent the officials in litigation, and service of process “is the initial step in litigation defense,” then the City Attorney is authorized to receive service of process. We are not persuaded.

“A defendant who challenges the sufficiency of service bears the burden of showing improper service, and a trial court’s findings of fact regarding service of process will be upheld on appeal absent a showing of an abuse of discretion.” (Footnotes omitted.) City of East Point v. Jordan, 300 Ga. App. 891, 891-892 (1) (686 SE2d 471) (2009). OCGA § 9-11-4 (e) (5) provides, in relevant part, that service upon a city shall be made by delivering the summons and complaint “to the chairman of the board of commissioners, president of the council of trustees, mayor or city manager of the city, or to an agent authorized by appointment to receive service of process.” The Charter of the City of Forest Park provides:

The city attorney or such assistant city attorneys may be responsible for representing and defending the city in all litigation in which the city is a party; may at the discretion of the city council be the prosecuting officer in municipal court; shall attend the meetings of the city council as directed; shall advise the council, mayor and other officers and employees of the city, concerning legal aspects of the city’s affairs, and shall perform such other duties as provided by the city council.

(Emphasis supplied.) Ga. L. 1988, p. 4427, § 3.13. The Charter does not authorize the City Attorney to act as agent for the city or its officials for purposes of perfecting service upon the city. Compare City of East Point, 300 Ga. App. at 892 (1) (City Charter specifically provided that “[t]he city attorney is hereby authorized and directed to acknowledge service of any suit, order, process, proceeding, or notice against the city”). Accordingly, the trial court did not err in its conclusion that service was not perfected by service upon the City Attorney, and in denying Molette’s motion for default judgment.

3. Molette argues that the trial court erred in finding that service had not been perfected before he filed his motion for default judgment. However as explained in Division 2, the City Attorney was not an authorized agent for that purpose and thus Molette’s initial attempt at service was insufficient. We need not address Molette’s argument that the trial court erred in finding in its October 13 order that service still had not been perfected on the City, given that the City, and indeed the trial court, concede that the ruling was erroneous, and that service had been perfected upon the City by that date.

4. Molette also contends that the trial court erred in denying his motion to set aside the judgment denying his motion for default judgment. His argument that the trial court should have granted his motion for default judgment and subsequent motion to set aside the judgment because the City Attorney was properly served as an agent for the City is unavailing as explained in Division 2.

Decided September 28, 2015

Reconsideration denied December 9, 2015.

Cleve L. Molette, pro se.

Freeman Mathis & Gary, Theodore Freeman, Brian R. Dempsey, for appellees.

Judgment affirmed in part and reversed in part.

Ray and McMil-lian, JJ., concur.

       Molette’s action arose from a December 22,2012 encounter with Sergeant Kurtz, who had ordered Molette to remove his mask because it was in violation of OCGA § 16-11-38, Georgia’s anti-mask statute. Molette responded that he was wearing the mask to protect his face from the cold while running outside. His civil rights complaint was filed based on his claim that the officer’s command was unlawful, because the statute at question does not apply to sporting activities. See OCGA § 16-11-38 (b) (2).

       Molette did not seek a default judgment against Hobbs and Kurtz in their individual capacities.


author: Branch, Judge.

text:
    A14A0190.
    ALEXANDER v. THE STATE.
    (780 SE2d 821)
   Branch, Judge.

Calvin Alexander filed a motion to withdraw his guilty plea, asserting that the plea resulted from ineffective assistance of counsel. The trial court denied that motion, finding that trial counsel’s failure to inform Alexander that he would be ineligible for parole did not constitute ineffective assistance of counsel. Alexander appealed and in an earlier decision we concluded that under the Supreme Court of Georgia’s decision in Williams v. Duffy, 270 Ga. 580 (513 SE2d 212) (1999), a lawyer’s failure to inform his client of the consequences the client’s guilty plea might have on his eligibility for parole could not constitute deficient performance as a matter of law. Alexander v. State, 328 Ga. App. 300, 306-307 (761 SE2d 844) (2014). We therefore affirmed the trial court’s order. Id. The Supreme Court of Georgia subsequently reversed our decision and in doing so overruled Williams. See Alexander v. State, 297 Ga. 59, 64 (772 SE2d 655) (2015). Accordingly, we now vacate our earlier decision and adopt the opinion of the Supreme Court as our own.

We reverse the order of the trial court and remand the case for further proceedings consistent with this opinion and the opinion of our Supreme Court. Specifically, the trial court should apply the two-prong test set forth in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), to determine whether Alexander received ineffective assistance of counsel. See Alexander, 297 Ga. at 65-66.

Judgment reversed and case remanded with direction.

Barnes, R J., and Boggs, J., concur.

Decided December 9, 2015.

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.


text:
    A14A0358.
    EASTER v. THE STATE.
    (780 SE2d 822)
    Decided December 9, 2015.

      Christopher R. Geel, for appellant.

      Ashley Wright, District Attorney, Amanda N. Heath, MadonnaM. Little, Assistant District Attorneys, for appellee.
   Branch, Judge.

In an earlier decision in this case, we reversed Andra Easter’s conviction for aggravated assault, finding that the trial court had charged the jury on that crime in a manner not alleged in the indictment. Easter v. State, 327 Ga. App. 754 (761 SE2d 149) (2014). This holding was reversed by the Supreme Court of Georgia, which applied its decision in Green v. State, 291 Ga. 287 (728 SE2d 668) (2012), and found that the jury charge did not constitute reversible error. State v. Easter, 297 Ga. 171, 173-174 (773 SE2d 181) (2015). Accordingly, we now vacate our earlier decision, adopt the opinion of the Supreme Court as our own, and affirm the judgment of conviction.

Judgment affirmed.

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

       In reaching this conclusion, the Supreme Court noted that
      the State failed to cite Green in its brief to the Court of Appeals, and even after the Court of Appeals issued a decision that was inconsistent with Green, the State filed no motion for reconsideration and otherwise did nothing to bring Green to the attention of the Court of Appeals. We take this occasion to remind lawyers of their obligation to bring pertinent legal authority to the attention of the courts and to do so in a timely manner.

        State v. Easter, 297 Ga. 171, 174, n. 2 (773 SE2d 181) (2015).


text:
    A14A0730.
    FROST v. THE STATE.
    (780 SE2d 821)
    Decided December 9, 2015.

      George C. Creed, Jr., for appellant.

      Barry E. Morgan, Solicitor-General, Emily B. Keener, Cara M. Convery, D. Melissa Tatum, Assistant Solicitors-General, for appel-lee.
   BARNES, Presiding Judge.

In State v. Frost, 297 Ga. 296 (773 SE2d 700) (2015), the Supreme Court of Georgia reversed the judgment of this Court in Frost v. State, 328 Ga. App. 337 (761 SE2d 875) (2014). Accordingly, we vacate our earlier opinion and adopt the judgment of the Supreme Court as our own.

Judgment affirmed.

Boggs and Branch, JJ., concur.


author: McFADDEN, Judge.

text:
    A14A0742.
    WATSON v. THE STATE.
    (780 SE2d 822)
   McFADDEN, Judge.

Patrick Watson was convicted on two counts of sexual battery against his minor daughter and one count of child molestation against another victim. In our opinion in Watson v. State, 329 Ga. App. 334 (765 SE2d 24) (2014), we affirmed his convictions. In so doing, in Division 3 (b) of our opinion we rejected Watson’s argument that the trial court erred in instructing the jury that “under Georgia law a person under the age of sixteen lacks legal capacity to consent to sexual conduct.” Id. at 338-340 (3) (b). In Watson v. State, 297 Ga. 718 (777 SE2d 677) (2015), the Supreme Court of Georgia reversed the judgment below on the sexual battery convictions, “holding] that this particular instruction is improper when given in relation to the offense of sexual battery.” Id. at 718. The Supreme Court noted that Watson’s conviction on child molestation was not at issue on certior-ari and did not address any of the other grounds upon which Watson had challenged his convictions.

We therefore vacate Division 3 (b) of our opinion in Watson v. State, supra, 329 Ga. App. 334, which addressed the propriety of the jury instruction described above, and in place of Division 3 (b) we adopt as our own the Supreme Court’s opinion in Watson v. State, supra, 297 Ga. 718. Because the Supreme Court neither addressed nor considered the other portions of our earlier opinion, and those other portions are not inconsistent with the Supreme Court’s own opinion, those other portions “become binding upon the return of the remittitur.” Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001).

Decided December 9, 2015.

Ross & Pines, Noah H. Pines, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Katie M. Gropper, Assistant District Attorneys, for appellee.

Accordingly, the conviction for child molestation is affirmed and the convictions for sexual battery are reversed.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Ray, J., concur.