text:
    A13A0458.
    PATTERSON v. HRAGYIL.
    (744 SE2d 851)
   Boggs, Judge.

Nicole Patterson appeals from the trial court’s award of attorney fees to Craig Hragyil under OCGA § 9-15-14 (b). She contends that the trial court erred because it relied upon information outside the record to award attorney fees, failed to specify in its order the conduct supporting the award of fees, and did not limit the amount of the attorney fee award to fees incurred due to the sanctionable conduct. She also asserts that the trial court erred by failing to grant her cross-motion for attorney fees under OCGA § 9-15-14 (b). For the reasons explained below, we reverse the trial court’s award of attorney fees against Patterson, and affirm the trial court’s denial of Patterson’s cross-motion for attorney fees.

The record shows that on August 31, 2011, Patterson’s counsel wrote to Craig Hragyil seeking to resolve Patterson’s claim for back child support for her 11-year-old daughter. The letter stated:

Some years ago, you agreed to pay Ms. Patterson $125 per week and to also regularly contribute to [the child]’s medical needs and to the costs associated with her extra-curricular activities. Ms. Patterson certainly recognizes and appreciates that you have provided some support for [the child], but your support has not been regular or timely and you currently owe Ms. Patterson $3,688 pursuant to your verbal agreement. Based upon [the child]’s changing needs as she enters the teen years, as well as your inability to honor your agreement to support [the child], Ms. Patterson has sought my assistance to establish regular monthly child support for [the child] pursuant to the Georgia Child Support Guidelines.

On September 22, 2011, Patterson filed a complaint against Hragyil for paternity and back child support. Hragyil did not file an answer to this complaint, even though counsel entered an appearance on his behalf on October 27, 2011. The record shows that since the child’s birth, both parties believed Hragyil to be the father of Patterson’s child, and that he visited and maintained a parental bond with the child.

On October 14, 2011, Hragyil showed Patterson on a tablet computer screen “the results of an at-home paternity test that indicated that he was not the father” of Patterson’s child. He did not provide Patterson with a copy of the test results. During a 30-day status conference held on October 26, 2011, the issue of paternity arose, and the trial court ordered the parties to attend a mediation.

In a November 1, 2011 letter, Hragyil’s counsel proposed that for the best interest of the child, the parties reach an agreement with regard to visitation and child support. The letter also stated, “[w]e believe that Ms. Patterson’s request for a DNA test is not in [the child]’s best interests” because “[r]egardless of the outcome of that DNA test, we believe that Mr. Hragyil’s relationship with [the child] will remain that of a father and his daughter.”

In a November 9, 2011 letter, Patterson’s counsel replied that her client agreed “that reaching an out-of-court Agreement is certainly in [the child]’s best interest” and made a counter-proposal with regard to visitation and child support. The letter concluded with the following statement: “For the time being, Ms. Patterson has decided to forego her request for a chain of custody DNA test. Please let us know whether Mr. Hragyil intends to acknowledge paternity.”

On November 28, 2011, after the parties failed to reach a settlement agreement, Patterson offered to make the child available for a formal DNA test with chain-of-custody safeguards to resolve the paternity issue. On Friday, December 9, 2011, around 5:00 p.m., Patterson received results from a chain-of-custody DNAtest showing that Hragyil was not the father of her child. She voluntarily dismissed her complaint without prejudice the following Monday, December 12, 2011.

On January 12, 2012, Hragyil moved for an award of attorney fees under OCGA § 9-15-14 because Patterson continued the lawsuit after learning that the at-home paternity test showed he was not the father. He argued:

when [Patterson] learned that [Hragyil]’s test results showed that he was not the biological father, [Patterson] delayed the proceedings by continuing to insist that the results were wrong. [Patterson] argues that [Hragyil]’s test was unauthenticated and she was not obligated to rely upon it. That may be true. However, [Patterson] could have still acknowledged that a possibility existed that [Hragyil] was not the Child’s biological father. She could have apologized for that mistake. She could have recognized the Child’s strong bond with [Hragyil] and agreed to amicably work towards a parenting time schedule and child support amount without the need for further litigation. Had she done any of those things, this Court would not be entertaining this Motion for Attorney’s Fees.

Patterson opposed the motion and filed a cross-motion for attorney fees expended in defending Hragyil’s motion for attorney fees. She asserted that she was not obligated to dismiss her complaint based upon Hragyil’s failure to answer the complaint. She also filed an affidavit outlining her reasons for believing in good faith that Hragyil was the father of her child. She also attached a document showing that in 2008, Hragyil acknowledged that he was the child’s father and consented to changing the child’s last name to his own.

Following a hearing in which the trial court heard argument from counsel, it orally granted Hragyil’s motion for fees and denied Patterson’s cross-motion for fees. It subsequently adopted an order prepared by Hragyil’s counsel that concluded:

Based on the evidence presented to the Court, the Court finds that despite learning from Respondent that he was not the minor child’s biological father, Petitioner continued the litigation and her actions were substantially frivolous and caused the proceedings to be unnecessarily expanded.

OCGA § 9-15-14 (b) provides:

The court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

“An award of attorney fees under subsection (b) is discretionary and the standard of review is abuse of discretion.” (Citation and punctuation omitted.) Abt v. Abt, 289 Ga. 166, 167 (709 SE2d 806) (2011).

1. In this case, the trial court abused its discretion by requiring Patterson to pay attorney fees to Hragyil. The record shows without dispute that Hragyil voluntarily engaged in settlement negotiations with the mother based upon his desire to continue his father-daughter relationship with Patterson’s child after he showed her the results of the at-home paternity test. In these same negotiations, he expressed the belief that the formal DNA test requested by the mother in her complaint would be against the child’s best interests. When the parties failed to reach a settlement agreement, the mother promptly obtained a chain of custody DNA test and immediately dismissed her complaint after she received the results. And in a brief below, Hragyil admitted that he “does not fault [Patterson] for filing her Complaint and requesting that the Court establish paternity and child support” and that “it was plausible for [her] to believe that [he] was the father of her child.”

Decided June 18, 2013.

Bivek, Brubaker & Prescott, Suzanne T. Prescott, for appellant.

Craig S. Hragyil, pro se.

Patterson’s failure to accept the validity of an informal, undocumented paternity test, however, does not render her continued efforts to reach an agreement with the alleged father substantially frivolous. Likewise, her conduct in negotiating with the father at his request did not unnecessarily expand the proceedings. See Dodson v. Walraven, 318 Ga. App. 586, 590 (3) (734 SE2d 428) (2012) (reversing award of attorney fees under OCGA § 9-15-14 (b) when “little if any extra time spent” on issues of child support beyond “normal course of resolving issues raised in legitimation petition”). We therefore reverse the trial court’s award of attorney fees against Patterson.

2. We find no abuse of discretion by the trial court in denying Patterson’s cross-motion for attorney fees expended to respond to Hragyil’s motion for attorney fees. See MARTA v. Doe, 292 Ga. App. 532, 539-540 (5) (664 SE2d 893) (2008) (finding no abuse of discretion by trial court in denying fees under OCGA § 9-15-14 (b)); Kilgore v. Sheetz, 268 Ga. App. 761, 770 (2) (603 SE2d 24) (2004) (same).

Judgment affirmed in part and reversed in part.

Doyle, P. J., and McFadden, J., concur.

       Hragyil proposed joint legal custody, parenting time for him every other weekend and twice a week, child support payments of $500 per month ($125 weekly), and shared medical expenses. Patterson responded that she wanted sole legal custody, one payment for child support and medical expenses each month to he determined after being provided an opportunity to review Hragyil’s financial records, and a payment of $233 a month to satisfy past due payments of $5,600 under the parties’ previous verbal agreement.

       While this order states that the motion was brought under OCGA § 9-15-14 (a), it is clear from a review of the substance of the motion that fees were sought under subsection (b). “There is no magic in nomenclature, and we judge pleadings, motions and orders not by their name hut by their function and substance, being always mindful to construe such documents in a manner compatible with the best interests of justice.” (Citation and footnote omitted.) Nelson & Hill, P.A. v. Wood, 245 Ga. App. 60, 64 (1) (537 SE2d 670) (2000).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A13A0655.
    GEORGIA DEPARTMENT OF HUMAN SERVICES v. PATTON.
    (744 SE2d 854)
   BARNES, Presiding Judge.

The Georgia Department of Human Services (“GDHS”) brought a contempt action against Crystal Patton for failing to meet child support obligations ordered by the court in a legitimation and custody action. The trial court dismissed the contempt action, finding that the underlying child support order was void because it had been entered more than five years after the legitimation and custody action had been automatically dismissed under the five-year rule set forth in OCGA § 9-2-60 (b). We granted GDHS’s application for discretionary review, and this appeal ensued. Because the trial court erred in finding that the five-year rule mandated the dismissal of the legitimation and custody action, we reverse.

The facts are not in dispute. Jamie Gregory sued Crystal Patton to legitimate and obtain custody of his minor child. In August 1997, the court entered a temporary consent order which legitimated the child and placed her in Gregory’s physical custody. On July 19, 2000, the parties and the trial court signed a final consent order that granted custody of the child to Gregory and required Patton to make monthly child support payments, but that order was not entered until April 30, 2003. On February 12, 2012, the GDHS brought an action for contempt against Patton for unpaid child support. Patton moved to dismiss the action, arguing that the underlying consent order upon which the contempt action was based was void. She asserted that the underlying case was closed by operation of law in 2002 because no order had been entered in the five years since the entry of the 1997 temporary order, that the final consent order entered in 2003 was a nullity, and thus, a violation of the consent order could not constitute contempt.

Following a hearing, the trial court granted the motion finding that “the underlying order was not filed with the Clerk until 2003, more than 8 months after the case was automatically dismissed by operation of law.” The trial court further acknowledged that “the cases cited by the parties appear to be in conflict” but that Patton’s cases and arguments were “more reasonable and persuasive.”

Under OCGA § 9-2-60 (b), “[a]ny action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.” Likewise, OCGA § 9-11-41 (e) provides: “Any action in which no written order is taken for a period of five years shall automatically stand dismissed, with costs to be taxed against the party plaintiff.” Under this rule, “to toll the running of the five-year period that results in automatic dismissal for non-action, ‘an order must be written, signed by the trial judge, and properly entered in the records of the trial court by filing it with the clerk.’ ” (Citation omitted.) Zepp v. Brannen, 283 Ga. 395, 396 (658 SE2d 567) (2008). Subsequently, “[a]ny ... order after the automatic dismissal of the case is null and void, because the trial court has lost jurisdiction over the case, which no longer is pending before it.” Goodwyn v. Carter, 252 Ga. App. 114, 115 (555 SE2d 474) (2001). See Willis v. Columbus Medical Center, 306 Ga. App. 331, 332 (702 SE2d 673) (2010); see also Prosser v. Grant, 224 Ga. App. 6 (2) (479 SE2d 775) (1996).

On appeal, GDHS argues that a line of cases originating from Jefferson v. Ross, 250 Ga. 817 (301 SE2d 268) (1983), setting forth an exception to the five-year rule, should apply here because the parties had reached a final settlement of the case and all that remained was the formal entry of the consent order memorializing the settlement. We agree.

In Jefferson, the trial court did not enter judgment on a jury verdict until more than five years after the verdict had been rendered. Declining to apply the five-year automatic dismissal rule, our Supreme Court held that the judgment was valid because there is no time limit for a court to enter judgment on a jury verdict. Id. at 819. The court reasoned:

The litigation here has been resolved by jury trial and verdict, and all that remains is the entry of judgment reflecting what has already been accomplished. Judicial economy and fairness to the prevailing party dictate that that which should have been done be done. We hold that the inherent power of a court of record to enter a judgment on a verdict is not extinguished by the passage of five years without entry of an order. We do so because the reasons behind the Code sections requiring dismissal for want of prosecution no longer exist once the case has been prosecuted to verdict.

(Emphasis supplied.) Id.

Similarly, in Faircloth v. Cox Broadcasting Corp., 169 Ga. App. 914 (315 SE2d 434) (1984), this Court applied Jefferson to conclude that no automatic dismissal occurred despite the passage of more than five years between a defendant’s default in an action for liquidated damages and the subsequent entry of default judgment. We held that the case “stood in the same posture as if a jury verdict for the plaintiff had been returned; for all that remained for the plaintiff to do was to have judgment entered in its favor.” Id. at 916. We further noted that “[t]he five year rule was intended to prevent long delays before trial” — a concern not present there. (Citation omitted; emphasis supplied.) Id.; Lott v. Arrington & Hollowell, P.C., 258 Ga. App. 51, 55 (b) (572 SE2d 664) (2002) (five-year rule not controlling where garnishment action commenced more than five years after judgment); see, cf., Ogundele v. Camelot Club Condominium Assoc., 268 Ga. App. 400, 402 (1) (602 SE2d 138) (2004) (“because the damages were unliquidated, the task of establishing damages remained pending . . . Jefferson and Faircloth do not preclude automatic dismissal pursuant to the five year rule”).

Decided June 18, 2013.

Samuel S. Olens, Attorney General, Mark J. Cicero, Assistant Attorney General, Brunt & Hood, Thomas N. Brunt, for appellant.

Jones & Erwin, Anthony B. Erwin, for appellee.

The legislative intent in enacting the precursor statute [to OCGA §§ 9-2-60 (b) and 9-11-41 (e)] in 1953 was to remove from trial courts those cases whose continued pendency only clutter the dockets, generally, the great number of cases which, to all intents and purposes had been abandoned by both parties, and in many instances had been settled without clearing the docket. The statute also serves to protect litigants from dilatory counsel.

(Citations and punctuation omitted.) Zepp v. Brannen, 283 Ga. at 395; Windsor v. City of Atlanta, 287 Ga. 334, 336 (2) (695 SE2d 576) (2010) (“[T]he [five-year] rule furthers the dual statutory goals of preventing trial court dockets from becoming cluttered with unresolved and inactive litigation and protecting parties from dilatory adversaries.”); Lewis v. Price, 104 Ga. App. 473, 476 (2) (122 SE2d 129) (1961) (“primary purpose of [five-year rule] was to eliminate inactive cases pending on the dockets of the courts without any disposition of the issues thereon”).

Here, the issues regarding the legitimation, custody, and child support were resolved and the order was signed by the presiding judge. In this case, as our Supreme Court recognized in Jefferson, “[j]udicial economy and fairness to the prevailing party dictate that that which should have been done be done.” Jefferson v. Ross, 250 Ga. at 819.

■ Thus, as the five-year rule did not as a matter of law require the dismissal of the final consent order of legitimation and custody, the trial court erred in dismissing the contempt action.

Judgment reversed.

Miller and Ray, JJ., concur.

       The trial court noted in its order dismissing the contempt action that the trial judge who signed the July 2000 order had died on October 20, 2001.

       The contempt action alleged that Patton owed $18,066 in child support.

       The hearing transcript is not included with the record.


text:
    A13A0357.
    SIEGEL v. PARK AVENUE CONDOMINIUM ASSOCIATION, INC.
    (744 SE2d 876)
   BARNES, Presiding Judge.

Lorraine Siegel sued Park Avenue Condominium Association, Inc., contending that the Association was liable for injuries she sustained when she fell while standing within the automatic revolving door in the lobby of the Park Avenue Condominium. The trial court granted the Association’s motion for summary judgment, and Siegel appeals, asserting that issues of fact remain for a jury to determine. For the reasons that follow, we affirm.

Viewed in the light most favorable to Siegel, the evidence showed that she left her car with the valet at the Park Avenue Condominiums and entered the lobby through the recently installed automatic revolving door. She and two other friends played mah jong for several hours at a resident’s apartment, then returned to the lobby and asked the valet to retrieve their cars. One of the women asked Siegel to hold her portable oxygen bottle while she got into her car. Siegel stepped out of the wind and stood within the “barrel” of the revolving door, and when she signaled to the valet to come get the oxygen bottle, her movement triggered the door’s sensor. The door began to rotate and hit Siegel’s foot, causing her to fall and break her hip and elbow.

In her appeal, Siegel contends that the trial court erred in granting summary judgment to the Association. Specifically, she claims that the trial court erred (1) in concluding that Siegel’s knowledge of the hazardous condition was equal to or superior to the Association’s knowledge; (2) in finding that the hazard which caused Siegel to fall was “open and obvious”; (3) in ruling against Siegel on her negligence per se claim; and (4) in concluding that Siegel was not entitled to punitive damages and attorney fees.

“To recover on a theory of premises liability, a plaintiff must show injury caused by a hazard on an owner or occupier of land’s premises or approaches that the owner or occupier should have removed in the exercise of ordinary care for the safety of the invited public.” American Multi-Cinema v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009).

Generally, in premises liability cases, after Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), to survive a motion for summary judgment, 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. . . . See also OCGA § 51-3-1.

(Citation and punctuation omitted.) The Landings Assn. v. Williams, 291 Ga. 397, 398-399 (728 SE2d 577) (2012). Further, “[i]n premises liability cases, a plaintiff must show that a hazardous condition existed and that the premises owner had superior knowledge of the hazard. It is not sufficient to simply show that an unfortunate event occurred and the plaintiff was injured.” (Citations and footnote omitted.) Henson v. Ga. Pacific Corp., 289 Ga. App. 777, 779 (1) (658 SE2d 391) (2008).

1. Siegel contends that the automatic door constituted a hazard, that the Association’s knowledge of the hazardous condition was superior to hers, and that the hazard was not open and obvious. She asserts that she has established that the door was a hazard by showing that it struck her foot and made her fall. She further asserts that the testimony of the Association’s manager about how the door worked establishes that the Association had superior knowledge of the hazard.

Other than her testimony that the door began to move while she was within it, hit her foot, and caused her to fall, however, Siegel has presented no evidence that the automatic door malfunctioned. Further, she testified that she noticed the new revolving door when she arrived, and that the previous sliding entry doors had also been motion-activated. She thought the new doors had been installed to address a problem with the sliding doors, which was that they had opened repeatedly when people were waiting inside for their cars and made the lobby cold and windy. She did not have to push the new door because it had a motion sensor, and she had no problems going into the building. When she and her friends came back down to the lobby to leave, she testified, her friend’s car came first and the friend went to her car with one of her oxygen canisters. Siegel continued:

I came out the revolving door so [the valet] could take the other [oxygen] canister from me, and I stood in the doorway because it was so windy, and I gestured to the valet to come get the other canister. I didn’t choose to walk out and hand it to him because it was very cold and windy, so I waved. And when I did — the revolving door was motion-sensored — it started to move, and it knocked me down.

The Association’s general manager testified that they changed the building’s entryway from automatic sliding doors to a revolving door because the lobby was cold, and engineering studies concluded there was no other reasonable way to keep it warm. The leaves of the new revolving door were wide enough to accommodate a motorized wheelchair or a walker and operated by an automatic motor triggered by an infrared sensor. The door had sensors within the barrel of the door at the top and bottom that monitored movement and caused the door to slow or stop when needed. If someone inside the door was moving more slowly than the door or stops before exiting, a soft rubber “heel plate” at the bottom of the door will hit her heel, which makes the door slow or stop. After Siegel fell, the company that installed the door inspected it and found it was functioning properly.

The Association thus submitted evidence that the automatic door was operating as it was supposed to, and Siegel presented no evidence to the contrary, such as expert testimony that the speed or force of the automatic doors was excessive or the sensor that triggered the movement was too sensitive or sited improperly. Absent evidence of a defect in addition to a fall, “[t]he record would not support a finding that the [Association] had superior knowledge that the revolving doors were a hazard to [Siegel].” Owens v. DeKalb Med. Center, 253 Ga. App. 19, 21 (1) (557 SE2d 404) (2001) (affirming summary judgment to proprietor after invitee fell while exiting through revolving door while using a walker). Therefore the trial court did not err in granting summary judgment to the Association on Siegel’s premises liability claim.

2. Siegel also argues that the trial court erred in granting summary judgment to the Association on her negligence per se claim, which is based on the absence of a separate door within ten feet of the revolving door as required by Section 1008.1.3.1 of the International Building Code, which Georgia has adopted as the state minimum standard building code per OCGA § 8-2-20 (9) (B) (i) (I).

The Association manager testified that the door installation contractor informed the Association at the beginning of the project that to meet code requirements, it needed to install an additional, side-swinging door within ten feet of the new revolving door. The Association contracted with the same company to install the second door, but Siegel fell before that door was installed, two to four weeks after the revolving door was put in.

In determining whether the violation of a statute or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against.

(Citation, punctuation and emphasis omitted.) Potts v. Fidelity Fruit & Produce Co., 165 Ga. App. 546, 547 (301 SE2d 903) (1983); see also Generali U.S. Branch v. Southeastern Security Ins. Co., 229 Ga. App. 277, 280 (2) (b) (493 SE2d 731) (1997). To determine the purpose of the statute, ordinance, or regulation, the court must “look to the particular statute in respect to its purposes, that is, the evils it was intended to guard against and the persons it was intended to protect.” Huckabee v. Grace, 48 Ga. App. 621, 632 (173 SE 744) (1934).

Clearly, the general purpose of legislation adopting standard building codes is to ensure that buildings are built or remodeled safely. But

[f]or a violation of the statute to be negligence per se, the violation must be capable of having a causal connection between it and the damage or injury inflicted upon the other person. This refers not to the proximate cause element of the negligence action, which the [plaintiff] still must prove by a preponderance of the evidence, but rather to the character of the legal duty involved. Is this statutory duty one which, if breached, is capable of producing [the injury complained of]?

(Citation and punctuation omitted.) Central Anesthesia Assoc. v. Worthy, 173 Ga. App. 150, 153 (325 SE2d 819) (1984).

The consequences to be guarded against by the installation of a side-swinging door within ten feet of a revolving door are not obvious. Siegel argues that absent an alternate entry, she had no choice but to use the revolving door. But as discussed in Division 1, the Association presented evidence that the revolving door itself was operating as it was supposed to, and Siegel presented no evidence to the contrary, nor does she assert that she would have used a side-swinging door if one had been available. In fact, she testified that the previous sliding doors made the lobby very cold for residents and guests waiting for their cars, and that she stood in the barrel of the revolving door to stay out of the cold wind while her friend walked to her car with the first of the two oxygen canisters. A swinging door also would have made the lobby cold and would not have provided shelter from the wind.

Decided June 19, 2013

Larry D. Wolfe, for appellant.

Mabry & McClelland, James T. Budd, Brett A. Miller, for appellee.

Absent evidence that Siegel would have behaved differently had there been a swinging door present, “the court can not declare that there is a case of negligence per se as to [this] cause of action or [this] plaintiff.” Platt v. Southern Photo Material Co., 4 Ga. App. 159, 164 (60 SE 1068) (1908). Siegel argues that this cause of action was not addressed or challenged in the Association’s motion for summary judgment and was therefore not presented for the trial court’s review. However, Siegel raised the issue of negligence per se in her statement of material facts as to which there existed genuine issues to be tried and hi her response to the Association’s motion for summary judgment. Both parties then argued the merits of the negligence per se claim during the motions hearing. Accordingly, the issue was before the trial court, which did not err in granting summary judgment to the Association on this ground.

3. Because Siegel cannot recover on her underlying tort claims as a matter of law, the trial court did not err in granting summary judgment to the Association on Siegel’s claims for punitive damages and attorney fees. Barnes v. Morganton Baptist Assn., 306 Ga. App. 755, 760 (3) (703 SE2d 359) (2010); Dowdell v. Krystal Co., 291 Ga. App. 469, 473 (4) (662 SE2d 150) (2008).

Judgment affirmed.

Miller and Ray, JJ., concur.


text:
    A13A0521.
    THE STATE v. WILLIAMS.
    (744 SE2d 883)
   BARNES, Presiding Judge.

After Tosha Williams was found guilty of voluntary manslaughter as a lesser included offense of malice murder, the trial court granted her a new trial. Williams’s subsequent plea in bar was denied, and she pled guilty to aggravated assault. Her conviction for aggravated assault and the denial of her plea in bar were overturned on appeal. See Williams v. State, 288 Ga. 7 (700 SE2d 564) (2010). Following remittitur, she contended that the State was barred from retrying her for voluntary manslaughter. The trial court subsequently dismissed the indictment against Williams. The State appeals. Although prosecution of Williams for malice murder, felony murder, and aggravated assault is barred by double jeopardy, and these are the only offenses specified in the indictment, the State contends that Williams’s previous acquittal of malice murder did not bar her rettial for the lesser included offense of voluntary manslaughter using the original indictment. For the reasons set forth below, we agree and reverse.

This case has a convoluted procedural history. The record shows that the Jenkins County grand jury indicted Williams for committing the crimes of malice murder, felony murder, and aggravated assault by running over her fiance with a motor vehicle on August 29, 2004. Following a jury trial, Williams was found guilty of voluntary manslaughter, felony murder, and aggravated assault. The jury also found Williams not guilty of malice murder and involuntary manslaughter. The trial court sentenced Williams to serve 20 years for voluntary manslaughter. The trial court vacated the jury’s verdict on felony murder in light of the modified merger rule adopted in Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992), and it merged the aggravated assault conviction into the voluntary manslaughter conviction. See OCGA § 16-1-7.

The trial court subsequently granted Williams’s motion for a new trial because it concluded that the jury had been selected in violation of Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986). Before the retrial, Williams filed a plea in bar arguing, among other things, that a second trial on the offenses of felony murder and aggravated assault was barred by double jeopardy. The trial court denied the plea in bar, after which Williams pled guilty to aggravated assault and then appealed the judgment and sentence, as well as the denial of her plea of double jeopardy. We affirmed in Williams v. State, 300 Ga. App. 305 (684 SE2d 430) (2009).

Our Supreme Court granted certiorari to determine whether this Court erred in affirming the trial court’s denial of Williams’s plea in bar, and it reversed the decision of this Court. See Williams, 288 Ga. at 12 (2). The Supreme Court concluded that “[cjlearly double jeopardy would have allowed Williams to be retried on the charge of voluntary manslaughter after her conviction for that offense in the first trial because her jeopardy for that charge did not come to an end when the first jury was discharged.” Id. at 9 (2). Nevertheless, our Supreme Court ruled:

[T]he State’s re-prosecution of Williams for felony murder was barred by double jeopardy after the jury found her guilty of the voluntary manslaughter of the same victim. A second prosecution on the aggravated assault charge was barred by double jeopardy because it served as the underlying offense to the felony murder charge and is a lesser included offense of felony murder.

Id. at 11 (2).

In light of our Supreme Court’s decision, this Court vacated its previous opinion and adopted the judgment of the Supreme Court as the opinion of this Court. Following remittitur to the trial court, Williams moved to dismiss the indictment. The trial court granted the motion, and the State appeals.

Consistent with her argument below, Williams demurs to the form of the indictment, arguing that there is no offense remaining in the indictment upon which to proceed to trial because she cannot be prosecuted for the charged offenses of malice murder, felony murder, and aggravated assault, and because the indictment did not set forth the elements of voluntary manslaughter. She acknowledges that in reversing the decision of this Court, our Supreme Court expressly noted that “[t]he State, of course, remains free to retry Williams on the voluntary manslaughter charge inasmuch as her jeopardy for that charge did not end.” Williams, 288 Ga. at 11, n. 4. Nevertheless, she argues, the Supreme Court’s finding goes only to the question of continuing jeopardy and not whether the State may actually proceed with a prosecution given the form of the indictment and given that the four-year statute of limitation for voluntary manslaughter expired in 2008. The State’s position is that the original indictment is sufficient to proceed to a trial on a charge of voluntary manslaughter as the lesser included offense of murder and that a conviction under the original indictment is not barred by the expiration of any statute of limitation. We agree with the State.

As we have said, “an acquittal on a greater offense does not preclude a retrial on a lesser offense to which continuing jeopardy has attached[.]” (Citation and punctuation omitted.) State v. Archie, 230 Ga. App. 253, 253-254 (495 SE2d 581) (1998). Here, Williams remains in jeopardy for voluntary manslaughter. Williams, 288 Ga. at 9 (2). And the established rule is that her “acquittal on the indicted offense of murder would not bar retrial on the lesser included unindicted offense of voluntary manslaughter using the same indictment, as long as the next jury does not know about the murder charge.” (Punctuation and footnote omitted; emphasis supplied.) Roesser v. State, 316 Ga. App. 850, 856 (1) (730 SE2d 641) (2012). Accord Archie, 230 Ga. App. at 255; Harrison v. State, 143 Ga. App. 883, 885 (1) (240 SE2d 263) (1977) (discussing “procedural solution[s]” for new trials on lesser included offenses after a defendant has been found not guilty of murder, yet convicted of a lesser offense). Further, “[t]he provisions of the statute of limitations applicable to an indictment for voluntary manslaughter will not bar a conviction of that offense under an indictment for murder; there being no statutory limitation as to indictments for murder.” (Citation, punctuation and emphasis omitted.) State v. Jones, 274 Ga. 287, 289 (2) (553 SE2d 612) (2001). Accord Manning v. State, 123 Ga. App. 844 (1) (b) (182 SE2d 690) (1971). It follows that so long as the next jury does not know about the murder charge, Williams may be retried for the lesser included offense of voluntary manslaughter using the original indictment and, as that indictment was for murder, the statutory limitation applicable to an indictment for voluntary manslaughter is not a bar to a conviction. Further, notwithstanding Williams’s efforts to distinguish it, this appeal must be considered in the context of our Supreme Court’s statement that the State “remains free to retry Williams on the voluntary manslaughter charge.” Williams, 288 Ga. at 11, n. 4. We find, therefore, that the trial court erred in dismissing the indictment.

Decided June 19, 2013

Richard A. Mallard, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellant.

Tony L. Axam, Danielle R Roberts, for appellee.

Judgment reversed.

Miller and Ray, JJ., concur.


author: DOYLE, Presiding Judge.

text:
    A13A0562.
    FULTON COUNTY v. DILLARD LAND INVESTMENTS, LLC et al.
    (744 SE2d 880)
   DOYLE, Presiding Judge.

In this condemnation case, Fulton County appeals the superior court’s order setting aside its voluntary dismissal of its condemnation petition, as well as the court’s order abrogating the judgment to allow for the filing of nonvalue exceptions to the special master’s award (the “award”). The pivotal issue in this case is whether Fulton County was authorized to voluntarily dismiss its condemnation action after the superior court adopted the award but before the amount of the award was paid into the court’s registry or to the condemnee. We conclude that Fulton County was entitled to do so and reverse, for the following reasons.

On February 24, 2012, Fulton County filed a petition for condemnation before a special master under OCGA § 22-2-100 et seq. to acquire 12 acres of land owned by Dillard Land Investments, LLC (“Dillard”), to expand its library facilities. A special master was appointed on March 27, 2012. On May 10, 2012, after a hearing, the special master filed his award with the trial court, concluding that the actual market value of the property was $5,187,500. On May 16, 2012, the trial court entered its judgment adopting the award. On May 18, 2012, Fulton County filed a voluntary dismissal of the petition. On June 12, 2012, Dillard filed an emergency motion to vacate and set aside the voluntary dismissal. On June 15, 2012, Fulton County moved to set aside or vacate the trial court’s judgment. On August 14, 2012, the trial court entered an order granting Dillard’s motion to set aside the voluntary dismissal and a second order abrogating the judgment to allow the parties to file nonvalue exceptions to the award. Fulton County filed an application for interlocutory appeal, which this Court granted, and this appeal followed.

Fulton County argues that it was authorized to voluntarily dismiss its condemnation petition. We agree.

OCGA § 22-1-12, which was amended in 2006 and made applicable to all condemnation proceedings filed on or after February 9, 2006, provides:

In all actions where a condemning authority exercises the power of eminent domain, the court having jurisdiction of a proceeding instituted by a condemnor to acquire real property by condemnation shall award the owner of any right or title to or interest in such real property such sum as will in the opinion of the court reimburse such owner for his or her reasonable costs and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings, if: (1) The final judgment is' that the condemning authority cannot acquire the real property by condemnation; or (2) The proceeding is abandoned by the condemning authority,

OCGA § 22-1-12 was enacted to bestow certain rights to property owners in condemnation actions. Therefore, under the statute, in the case of abandonment by the condemnor, property owners are entitled to recover their expenses incurred in the process.

The only case to date in which this statute is cited is Gramm v. City of Stockbridge, wherein a similar issue arose. In Gramm, the City of Stockbridge filed a petition for condemnation before a special master, the special master granted the petition and awarded just compensation to the condemnee, and the city paid the award to the condemnee. The condemnee appealed the value, and before the hearing on the value could be held, the city voluntarily dismissed the condemnation action, relying on OCGA § 22-1-12. This Court held as follows:

In a condemnation proceeding under OCGA § 22-2-100 et seq., title to the property vests in the condemnor upon entry of the condemnation judgment and payment of the special master’s award into the court. . . . OCGA § 22-2-107 (g) provides that “upon the payment of the amount awarded by the special master into the registry of the court, the award of the special master and the judgment of the court condemning the property or interest to the use of the condemning body shall be conclusive.” Accordingly, after a condemnation judgment has been entered, the condemnor cannot assent to the judgment adopting the master’s findings, pay in its money and seek to take possession of the property, and then disown the very property it has paid for[ ] and sought possession of in the action.

This Court reasoned:

A property owner should be allowed to rely upon the condemnation as being final when . . . the condemnor has obtained a condemnation judgment; the award has been paid and disbursed; the condemnee has filed no exceptions to the taking; and the condemnor has retained possession of the property for a significant period of time.

Addressing the city’s argument that OCGA § 22-1-12 permitted the filing of the dismissal, this Court noted that the statute was inapplicable because the city’s condemnation petition was filed before the effective date of the statute, but stated that the statute was “silent as to when and under what circumstances an abandonment may be authorized.”

Unlike the condemnor in Gramm, Fulton County did not pay the amount of the award to the condemnee or into the court registry, nor did it take title of the land for any period of time. Instead, it obtained the condemnation judgment but dismissed the petition two days after the entry of the trial court’s judgment, which was entered prematurely. Under these circumstances, the trial court erred by concluding that Fulton County could not dismiss its condemnation action.

The cases relied upon by Dillard do not require a different result. The cases cited were decided under the assessor’s method of condemnation, and they all preceded OCGA § 22-1-12. As explained in Woodside v. City of Atlanta, assessors’ rulings on condemnation cases were self-executing. “Their award[s] [were] to be filed in the office of the clerk of the superior court, and ... recorded, after which [they would have] the force and effect of a judgment or decree of the superior court.” In proceedings before special masters, however, which are governed by OCGA § 22-2-100 et seq., the legislature required that special masters’ awards be adopted by the trial judge. Thus, the assessor condemnation cases are inapposite and inapplicable to the instant case. Accordingly, we reverse the trial court’s order setting aside Fulton County’s voluntary dismissal of the condemnation petition.

Judgment reversed.

McFadden and Boggs, JJ., concur.

Decided June 19, 2013

Diana L. Freeman, Larry W. Ramsey, Jr., for appellant.

Pursley, Friese & Torgrimson, Charles N. Pursley, Jr., Christian F. Torgrimson, Angela D. Robinson, L. Elizabeth Story, Maddox, Nix, Bowman & Zoeckler, Thomas A. Bowman, Troutman Sanders, Douglas A. Henderson, J. Houston Lennard, William F. Gilmore, Dewayne C. Vaughn, Douglas J. MacGinnitie, for appellees.

       (Emphasis supplied.)

       See Gramm v. City of Stockbridge, 297 Ga. App. 165, 167 (676 SE2d 818) (2009).

       Id.

       Even though the condemnation action in Gramm was filed before the effective date of the statute, the opinion is instructive on the issue presented here. See id. at 167.

       See id. at 165.

       Id. at 166-167.

       (Citation and punctuation omitted.) Id. at 166.

       Id. at 168.

       Id. at 167.

       OCGA § 22-2-112 (a) provides that any party dissatisfied with a special master’s award could file an appeal in superior court “within ten calendar days from the service of the award, plus three additional calendar days for mailing of the award.” “The statute . . . sets forth no exceptions to the ten-day period.” Stafford v. Bryan County Bd. of Ed., 267 Ga. 274, 275 (476 SE2d 727) (1996). “Because all conditions and limitations provided by the Special Master’s Act must be strictly followed, a superior court’s entry of judgment on an award prior to the expiration of the ten-day period is reversible error absent an acquiescence or waiver.” Fowler v. City of Warm Springs, 238 Ga. App. 601, 602 (3) (519 SE2d 703) (1999). Here, there is no evidence of acquiescence or waiver.

       See Woodside v. City of Atlanta, 214 Ga. 75, 82 (3) (103 SE2d 108) (1958); Ga. Power Co. v. Fountain, 207 Ga. 361, 367 (b) (61 SE2d 454) (1950); Thomas v. Central of Ga. R. Co., 169 Ga. 269, 272 (149 SE 884) (1929); Housing Auth. of Atlanta v. Mercer, 123 Ga. App. 38, 42 (179 SE2d 275) (1970); Hodges v. South Ga. Natural Gas Co., 111 Ga. App. 180, 180-181 (141 SE2d 182) (1965).

        Woodside, 214 Ga. at 82 (3).

       (Punctuation omitted.) Id.

       See OCGA § 22-2-111.


author: McFadden, Judge.

text:
    A12A2335.
    FORD MOTOR COMPANY et al. v. YOUNG et al.
    (745 SE2d 299)
   McFadden, Judge.

Attorneys Alan Thomas and Paul F. Malek appeal an order revoking their admission to practice as trial counsel pro hac vice in this product liability wrongful death case. They argue that their appeal is not moot, even though the underlying case has settled, and that they have standing to appeal, even though they were not parties below. They also argue that the trial court erred by considering the Georgia Rules of Professional Conduct and by revoking their admissions. Finally, they argue that they were entitled to notice and a hearing before the court revoked their admissions. We agree with Thomas and Malek that the issue of the revocation of their admissions pro hac vice is not moot and that they have standing to appeal. We hold that the trial court properly considered the Georgia Rules of Professional Conduct. But we agree with Thomas and Malek that they were entitled to notice and an opportunity to be heard before the trial court revoked their admissions. We therefore vacate the trial court’s order and remand the case for the court to allow the attorneys such due process. Consequently, we do not address the attorneys’ argument that the evidence was insufficient to support the revocations.

The parents of Donald R. Young III filed this product liability action against Ford Motor Company after their son was killed when the Ford Explorer in which he was a passenger ran off the road and rolled over. Thomas and Malek are Alabama attorneys, and the Cobb County State Court granted their applications for admission pro hac vice to represent Ford in the litigation.

In the course of discovery, plaintiffs’ counsel served Ford with a request for production of documents, asking for the production of any insurance policies that would be applicable in the case. According to the trial court, Ford “failed to disclose the applicable insurance policies, did not object, and never supplemented its response to disclose any insurance policies.” Rather, it responded that Ford had sufficient resources to satisfy any judgment that reasonably could be expected to be awarded as damages.

The parties prepared a consolidated pretrial order. Section four of the pretrial order listed the individuals and entities with whom the parties would qualify the jury. The plaintiffs included in that listing “[a]ny insurer of Defendant Ford Motor Company,” but counsel for Ford struck through that phrase. Ford explained that it “objected] to any reference to an alleged insurer of Ford. Ford has sufficient resources to satisfy any judgment that reasonably could be expected to be awarded as damages in this action, if any.”

During pretrial hearings, as the parties and the trial court reviewed the pretrial order, Ford’s local counsel and Thomas obj ected to the plaintiffs’ request that the jury be qualified as to any insurer of Ford. Thomas specifically repeated the position that “Ford Motor Company essentially is self-insured to a point that it would satisfy any judgment in this case.” The court explained that the issue was not whether Ford had sufficient resources to pay a judgment, but the identity of Ford’s insurers so that the jury could be qualified as to anyone who had a financial interest at stake. When pressed further, Thomas said that he could not state that Ford would not make an insurance claim. He agreed to research the issue so that he could make a definitive statement on the record before the jury was qualified.

Voir dire was scheduled for the next week. According to the trial court, before voir dire began, Thomas again stated there was no insurance, but the statement was not made on the record. After an entire day of voir dire, the following colloquy occurred:

PLAINTIFFS’ COUNSEL: There’s one other issue if we’re moving on. This morning, when we talked about the insurance, you were going to make Mr. Thomas make a statement on the record about Ford’s insurance coverage.
THE COURT: Yes. You can go ahead. I don’t think that we got that on the record, did we, Madam Court Reporter?
PLAINTIFFS’ COUNSEL: No.
COURT REPORTER: No, ma’am.
THOMAS: No. The question had to do with insurance, Your Honor. I made inquiries over the weekend. My understanding is, just consistent with our discovery responses in here, that there is no insurance that would be applicable to satisfy a judgment in this case. And, as we said — I’ve got the exact language in the discovery responses, but that it would be inappropriate to qualify as to whatever this insurance policy was — that I still haven’t seen yet.
THE COURT: And I’ll follow up with that. But the [c]ourt then, based on the representation of Mr. Thomas, as an officer of the court, and he is able to bind his client, then, if any issue as to insurance comes up in the future, it would be a fatal error, because it was a legal challenge for cause that they were not qualified as to that. Thank you.

The next day, before the parties began to strike the jury, plaintiffs’ counsel informed the court that Thomas had notified plaintiffs’ counsel that Ford did have applicable insurance. The court stated, ‘Mr. Thomas stood here and you represented, on the record on behalf of Ford, and I made it clear that if you then tried to use insurance or you wanted to invoke insurance that it would be a mistrial. I’ve dismissed jurors, I’ve let people go.” Local counsel for Ford explained, “We kind of dug into this a little bit further.” The court responded:

Well, we had pretrial hearings on June, I believe, 6th and 7th, and then again, maybe on the 8th. And, at that time, the court instructed Ford to provide that information on the day we were to begin striking the jury, and to be certain. And I told Mr. Thomas, at that time, along with the other attorneys, what the consequences would be and Mr. Thomas assured the court that he would find out that answer. And he represented yesterday morning that he had inquired and he had found out that information.

Thomas explained:

As I said yesterday, in our discovery responses, we’re clear that Ford has sufficient resources to satisfy any judgment that would reasonably be expected to be awarded as damages in this action. We had the discussion yesterday. I checked. That was still correct.... Through our discussions yesterday, Your Honor, I put my understanding of it on there, but during the discussions we made sure, Your Honor, and [local counsel] checked into it, and this is absolutely correct.
The only issue is whether there may be excess coverages that are very complicated and might kick in at some point and time, which we would not anticipate in this case. But, to be perfectly honest about it, because we wanted to make sure that before this jury was empanelled we let the court know exactly, as best we could, what the issues were.

Local counsel clarified that Ford was self-insured up to $25 million but six policies of excess coverage could be at play. (It was later determined that significantly more policies could potentially cover the judgment.)

Thomas said that he had not intentionally misled the court. He explained that he learned by e-mail that morning of the insurance, and thát he then promptly advised plaintiffs’ counsel and the court. Malek, the other Alabama attorney, explained that after the pretrial hearing, he and Thomas made a “good faith inquiry” with Ford, which responded that “there was no insurance that [it] believed would be responsive to the concerns of this case and applicable to this case.” Malek stated that he and Thomas did not know the information, had made efforts to obtain it, and had not made any knowing misrepresentation to the court.

The court declined to hold Thomas in contempt at that time. Counsel for plaintiff raised the issue of Thomas’s pro hac vice admission. The court orally revoked both attorneys’ admissions, and later reduced its order to writing. It found that the continued pro hac vice admissions “may be detrimental to the prompt, fair and efficient administration of justice,” and that Thomas and Malek had violated Georgia Rules of Professional Conduct 3.3, Candor Toward the Tribunal, and 3.4, Fairness to Opposing Party and Counsel. Because the trial court had not qualified the jury pool as to Ford’s insurers, the court declared a mistrial and ordered as a sanction that Ford could not contest the plaintiffs’ assertion that it had failed to adequately warn consumers of the danger of a seat belt during a rollover accident in a Ford Explorer. The plaintiffs and Ford settled and dismissed the case, and Thomas and Malek filed this appeal from the order revoking their pro hac vice admissions.

1. Jurisdiction.

“This [c]ourt has a duty to inquire into its jurisdiction to entertain each appeal.” Hammonds v. Parks, 319 Ga. App. 792, 793 (2) (735 SE2d 801) (2012) (citation omitted). This case presents two jurisdictional issues: whether Thomas and Malek have standing to appeal and whether the appeal is moot because of the settlement and dismissal of the underlying case. OCGA § 5-6-48 (b) (3); see In the Interest of M. B. B., 241 Ga. App. 249, 250 (1) (a) (526 SE2d 76) (1999).

(a) The attorneys have standing to appeal the revocation of their pro hac vice admissions.

Whether an attorney may appeal individually the revocation of his pro hac vice admission based on a finding that he violated the Georgia Rules of Professional Conduct is an issue of first impression in Georgia.

Generally, only a party to a civil case, or one who has sought to become a party as by way of intervention and has been denied the right to do so, can appeal from a judgment. However, where judgment is entered against a nonparty, that nonparty becomes a party with standing to appeal.

Barham v. City of Atlanta, 292 Ga. 375, 376 (1) (738 SE2d 52) (2013) (citations omitted). Cf. Cooper Motor Lines v. B. C. Truck Lines, 215 Ga. 195 (1) (109 SE2d 689) (1959) (“A party not aggrieved by the judgment of the trial court is without legal right to except thereto, since he has no just cause of complaint.”) (citations and punctuation omitted).

The trial court’s order made specific findings that the attorneys had violated the Georgia Rules of Professional Conduct. These findings may have continuing, adverse collateral consequences for the attorneys’ careers. See Division 1 (b), infra. We thus conclude that because this order bears directly upon the attorneys’ interests, they are directly aggrieved by the decision. Weeks v. Independent School Dist. No. I-89, 230 F3d 1201, 1207-1208 (II) (1) (10th Cir. 2000) (attorney was directly aggrieved by disqualification order finding violation of professional conduct and had standing to appeal the order); Hammond v. City of Junction City, 168 FSupp.2d 1241, 1243-1244 (II) (D. Kan. 2001) (counsel have standing to appeal orders that directly aggrieve them, including orders disqualifying them as counsel for violation of rules of professional conduct). Cf. Analytica v. NPD Research, 708 F2d 1263, 1266 (7th Cir. 1983) (declining to decide whether damage to law firm’s reputation was enough to confer standing because firm clearly had standing to appeal from order directing it to pay fees for resisting order of disqualification). Consequently, Thomas and Malek have standing to appeal the order revoking their admissions. Compare Southwire Co. v. Hull, 212 Ga. App. 131, 132 (441 SE2d 293) (1994) (employee was not aggrieved by workers’ compensation award and therefore had no standing to appeal).

(b) The issues in this appeal are not moot.

If the questions presented in an appeal have become moot, then the appeal must be dismissed. See OCGA § 5-6-48 (b) (3). We conclude that the issue of the revocation of the attorneys’ pro hac vice admissions is not moot even though the underlying lawsuit has settled and been dismissed.

Although no Georgia court has addressed this precise issue, we have considered the issue of mootness in an attorney’s appeal of a contempt conviction against him. In In re Hatfield, 290 Ga. App. 134, 136-137 (1) (658 SE2d 871) (2008), we held that an attorney’s appeal of his contempt conviction was not moot, even though he had paid the fine imposed, “because of possible continuing adverse collateral consequences” the attorney might suffer because of the conviction. Citing United States v. Schrimsher, 493 F2d 842 (5th Cir. 1974), we observed that an attorney’s contempt citation could have “serious adverse career consequences” such as disciplinary action by a bar association, diminished opportunities for appointment to the bench or to other high office, damage to his reputation in the legal community, and his ability to attract clients and to represent them effectively. In re Hatfield, 290 Ga. App. at 136-137.

The Eleventh Circuit Court of Appeals has addressed the issue of whether the revocation of an attorney’s pro hac vice admission is moot when the underlying case has been dismissed. And although the decisions of the Eleventh Circuit are not binding on this court, they are persuasive authority. Perez v. State, 283 Ga. 196, 198 (657 SE2d 846) (2008). In Kirkland v. Nat. Mtg. Network, 884 F2d 1367 (11th Cir. 1989), the Eleventh Circuit held that the validity of the revocation of an attorney’s pro hac vice admission, the only issue raised on appeal, was not moot even though the underlying case had been dismissed. Id. at 1370 (II) (A). The court observed that “[although the immediate impact of the revocation of [the attorney’s] pro hac vice status ended with the case’s dismissal, the brand of disqualification on grounds of dishonesty and bad faith could well hang over his name and career for years to come.” Id. (citation, punctuation and footnote omitted). See also Lasar v. Ford Motor Co., 399 F3d 1101, 1109 (II) (9th Cir. 2005) (noting that “the prevailing view [is] that settlement of an underlying case does not preclude appellate review of an order disqualifying an attorney from further representation insofar as that order rests on grounds that could harm his or her professional reputation”) (citation and punctuation omitted).

We find the reasoning of Kirkland, 884 F2d at 1370 (II) (A), persuasive and consistent with the reasoning of In re Hatfield, 290 Ga. App. at 136-137 (1). Here, the trial court found that the attorneys acted unfairly and with a lack of candor in violation of the Georgia Rules of Professional Conduct. These findings could affect the attorneys’ careers beyond the context of this case. We therefore conclude that the issue of the revocation of their pro hac vice admissions is not moot.

2. The attorneys were entitled to notice and an opportunity to be heard before the trial court revoked their pro hac vice admissions.

The attorneys argue that they were entitled to due process before the court revoked their admissions. We agree that the attorneys were entitled to notice and an opportunity to be heard.

Whether an attorney is entitled to due process before his pro hac vice admission may be revoked is another issue of first impression in Georgia. But the Eleventh Circuit considered the issue in Kirkland, 884 F2d at 1367. The court reasoned that admission of an attorney pro hac vice constitutes a “mutually explicit understanding” sufficient to implicate a Fourteenth Amendment property interest in the admission. Id. at 1371 (II) (B). See also Perry v. Sindermann, 408 U. S. 593, 601 (II) (92 SCt 2694, 33 LE2d 570) (1972) (“A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.”) (citation omitted). Accordingly, the Eleventh Circuit reasoned that an attorney, once admitted pro hac vice, is entitled to the basic procedural rights of notice and a hearing before the admission can be revoked. Kirkland, 884 F2d at 1371 (II) (B). Compare Leis v. Flynt, 439 U. S. 438 (99 SCt 698, 58 LE2d 717) (1979) (holding that an attorney is not entitled to due process in applying for pro hac vice admission because the “right of an out-of-state lawyer to appear pro hac vice in [a state] court does not fall among those interests protected by the Due Process Clause of the Fourteenth Amendment”).

' We agree with the Eleventh Circuit that the revocation of an attorney’s pro hac vice admission implicates a “mutually explicit understanding” sufficient to create a limited Fourteenth Amendment property interest. Uniform Superior Court Rules 4.4 (D) (3) and 4.4 (D) (4), which concern the admission of attorneys pro hac vice and the revocation of their admission (and which is applicable to state courts, see Uniform State Court Rules, Note), establish criteria for the revocation of an attorney’s pro hac vice admission. And these criteria set the standards that a trial court must follow when deciding to revoke pro hac vice admission and that an attorney may invoke in opposing the revocation, thereby creating a limited property interest for due process purposes. Perry v. Sindermann, 408 U. S. at 601 (II).

The question, then, is what process is due.
The fundamental idea of due process is notice and an opportunity to be heard. Due process does not guarantee a particular form or method of state procedure. Rather, . . . due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Due process is flexible and calls for such procedural protections as the particular situation demands.

Hood v. Carsten, 267 Ga. 579, 580 (481 SE2d 525) (1997) (citations and punctuation omitted). Consistent with the Eleventh Circuit’s holding in Kirkland, we hold that the trial court must afford the attorneys notice and an opportunity to respond to the charges against them before revoking their pro hac vice admission. See Kirkland, 884 F2d at 1372 (II) (B).

As the attorneys observe in their appellate brief, this holding is in accord with the holdings of numerous courts throughout the United States. See, e.g., Belue v. Leventhal, 640 F3d 567, 577 (III) (A) (4th Cir. 2011) (“[W]hile it may be true that no attorney has a due process right to pro hac vice status, once such status is granted, attorneys must receive some modicum of due process before it is revoked.”) (citations omitted); Cole v. United States Dist. Court for the Dist. of Idaho, 366 F3d 813, 821-822 (II) (C) (9th Cir. 2004) (mandamus proceeding); Martens v. Thomann, 273 F3d 159, 175-176 (II) (A) (2d Cir. 2001); Pacific Harbor Capital v. Carnival Air Lines, 210 F3d 1112, 1118 (III) (9th Cir. 2000) (“[A]n opportunity to be heard does not require an oral or evidentiary hearing on the issue. The opportunity to brief the issue fully satisfies due process requirements.”) (citations omitted); United States v. Collins, 920 F2d 619, 626 (II) (B) (10th Cir. 1990); Johnson v. Trueblood, 629 F2d 302, 303-304 (II) (3rd Cir. 1980); ACE American Ins. Co. v. Underwriters at Lloyds & Cos., 939 A2d 935, 947-949 (Pa. Super. Ct. 2007); Clare v. Coleman (Parent) Holdings, 928 S2d 1246, 1248-1249 (Fla. Ct. App. 2006); Jensen v. Wisconsin Patients Comp. Fund, 621 NW2d 902, 905-907 (II) (Wis. 2001) (requiring notice and an opportunity to be heard for policy reasons and declining to resolve due process question); Bank of Hawaii v. Kunimoto, 984 P2d 1198, 1213-1214 (III) (A) (Haw. 1999); Hallmann v. Sturm Ruger & Co., 639 P2d 805, 807-809 (Wash. Ct. App. 1982) (holding that although attorney did not have constitutional or statutory right to notice and hearing, those steps should have been taken for policy reasons).

Here, the attorneys were not given notice of the charges against them or a meaningful opportunity to be heard. The issue of revocation arose at the beginning of the trial, just before the parties were to strike a jury, and the trial court orally revoked their admissions at that time; the attorneys were not given notice that their admissions could be revoked until the trial court revoked them. And not until the trial court issued its written order were the attorneys informed of the specific Rules of Professional Conduct the trial court determined they had violated. Although the trial court allowed the attorneys to speak on the issue, they were not given a meaningful opportunity to respond to the charge that they had violated those specific rules, as they had not been given notice. Accordingly, we vacate the trial court’s order revoking the attorneys’ pro hac vice admissions and remand for the trial court to afford the attorneys notice and a meaningful opportunity to be heard before deciding the issue.

3. The trial court properly considered the Georgia Rules of Professional Conduct.

Thomas and Malek argue that the trial court erred in revoking their pro hac vice admissions on the basis of violations of the Georgia Rules of Professional Conduct. They argue that the trial court lacked authority to sanction them based upon a violation of the disciplinary rules because the Supreme Court of Georgia has the exclusive authority to govern the practice of law in Georgia. Because the issue will arise upon remand, we address it in spite of our vacating the order of revocation. We hold that the trial court properly considered the Georgia Rules of Professional Conduct when deciding the issue of the revocation of the attorneys’ pro hac vice admissions.

We observe that the Supreme Court transferred the appeal to this court on the ground that “the trial court’s finding that the attorneys’ conduct constituted a violation of State Bar Rules [did] not invoke [the Supreme] Court’s authority over lawyer disciplinary matters.”

More importantly, the rule governing the admission of attorneys pro hac vice and the revocation of that admission explicitly includes within the trial court’s authority the Georgia Rules of Professional Conduct. Uniform Superior Court Rule 4.4 (F) (1) (b), which concerns the admission of attorneys pro hac vice and the revocation of their admission, provides that “[t]he [trial] court’s . . . authority includes, without limitation, the court’s and State Bar of Georgia’s Rules of Professional Conduct, contempt and sanctions orders, local court rules, and court policies and procedures.” (Emphasis supplied.)

And we have previously held that trial courts may disqualify attorneys for violations of the disciplinary rules. For example, in Piedmont Hosp. v. Reddick, 267 Ga. App. 68 (599 SE2d 20) (2004), we held that the trial court erred in ruling that, because “sanctions for violations of disciplinary rules appear to be the exclusive province of the Supreme Court of Georgia, not of [the] trial court,” it lacked authority to determine whether plaintiff’s counsel violated Rule 4.2 of the Georgia Rules of Professional Conduct and therefore should be disqualified. Id. at 75-76 (7) (a) (punctuation omitted). We noted that the “determination of whether an attorney should be disqualified from representing a client in a judicial proceeding rests in the sound discretion of the trial judge.” Id. at 75 (7) (a) (citations omitted; emphasis in original). See also In re Estate of Peterson, 255 Ga. App. 303 (565 SE2d 524) (2002) (affirming superior court’s disqualification of an attorney serving as executor of a will on the basis of violation of State Bar Rules); Clos v. Pugia, 204 Ga. App. 843, 844-846 (1) (420 SE2d 774) (1992). Compare Stevens v. Thomas, 257 Ga. 645, 647-648 (1) (361 SE2d 800) (1987) (declining to address order disqualifying defendants’ attorney for violation of State Bar Rules because appeal was not timely as to that issue, hut reversing award of attorney fees against defendants because a client is not subject to sanctions for the infractions of disciplinary rules by the client’s attorney).

Decided June 20, 2013.

Huff, Powell & Bailey, Randolph P. Powell, Jr., Michael R. Boorman, Audrey K. Berland, Fain, Major & Brennan, Gene A. Major, Richard W. Brown, Balch & Bingham, Michael J. Bowers, J. Matthew Maguire, Jr., Christopher S. Anulewicz, for appellants.

Harris, Penn, Lowry & DelCampo, Stephen G. Lowry, J. Antonio DelCampo, Jed D. Mantón, for appellees.

4. Sufficiency of the evidence.

Because we have vacated and remanded the order revoking the attorneys’ pro hac vice admissions, we do not address their argument that the evidence does not support the trial court’s finding that the attorneys violated the Georgia Rules of Professional Conduct.

Judgment vacated and case remanded.

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


author: MCFADDEN, Judge.

text:
    A13A0279.
    MORGAN v. U. S. BANK NATIONAL ASSOCIATION.
    (745 SE2d 290)
   MCFADDEN, Judge.

Francis J. Morgan appeals pro se from the trial court’s order dissolving a temporary restraining order and allowing U. S. Bank National Association (in its capacity as Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates Series 2006-CB5) to foreclose on Morgan’s house. Because the trial court did not abuse its discretion in declining to consider at the hearing on injunctive relief other claims raised by Morgan in an amended complaint, and did not abuse its discretion in requiring, as a condition for extending injunctive relief, that Morgan place into escrow an amount of money reflecting past-due payments on his mortgage, we affirm.

1. Facts and procedural posture.

The evidence is undisputed that Morgan obtained a mortgage on his house and subsequently stopped making payments on that mortgage. He did so because he concluded that the note had become “void or voidable” due to a “failure of conveyance,” apparently referring to an assignment that he alleged was improper. After being notified that U. S. Bank intended to foreclose on the house, Morgan filed a pro se action against U. S. Bank styled “Complaint for Fraud and Request for Temporary Restraining Order.” Therein, he asserted that U. S. Bank had no standing to foreclose because it was not the holder of either the note or deed securing the debt on the property, sought further discovery into “U. S. Bank’s actions,” and sought to enjoin the foreclosure. The same day that Morgan filed the complaint, the trial court granted him a temporary restraining order and directed the parties to appear for a hearing on the complaint the following month. Shortly before the scheduled hearing, Morgan filed an amended complaint in which he alleged additional causes of action and sought damages, declaratory relief, and further injunctive relief.

The trial court conducted a hearing on July 2, 2012, to determine “whether the TRO is going to be made permanent or not.” The trial court expressly did not consider other issues raised in the amended complaint, noting that U. S. Bank had not yet received a copy of that pleading. At the hearing, Morgan presented testimony and argued that, although he stopped making payments on his mortgage, questions existed about whether U. S. Bank was the entity to which he owed those payments and whether he was presently indebted to any entity at all. The trial court indicated his willingness to grant Morgan injunctive relief from the foreclosure if he placed into the court registry an amount of money covering the past-due payments on the mortgage. Morgan declined to do so. The trial court then ruled from the bench that he was “going to dissolve the temporary restraining order and let U. S. Bank proceed,” noting that the law “[did] not favor” Morgan’s contention that U. S. Bank lacked standing to pursue payments under the note.

On July 13, the trial court entered a written order dissolving the temporary restraining order and allowing U. S. Bank to proceed with the foreclosure. (U. S. Bank’s counsel prepared this order and in its appellate brief characterizes the order as “granting] U. S. Bank’s motion to dismiss” Morgan’s complaint. The record reflects, however, that U. S. Bank did not move to dismiss the complaint until July 27, 2012, after the trial court issued its order. And although the order is styled “Order of Dismissal with Prejudice,” by its terms it neither rules on a motion to dismiss nor dismisses Morgan’s action sua sponte.) Morgan appeals.

2. Appellate jurisdiction.

As an initial matter, we must address our duty to inquire into our jurisdiction to entertain each appeal. See Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 220 (633 SE2d 623) (2006). As detailed below, OCGA § 5-6-34 (a) (4) permits Morgan’s direct appeal from the July 13 order.

The order on appeal dissolved a previously-granted temporary restraining order. It followed a hearing at which the trial court heard evidence on whether to extend the injunctive relief sought by Morgan. See generally OCGA § 9-11-65 (b) (setting forth procedure by which court conducts hearing to determine whether either to dissolve previously-entered ex parte temporary restraining order or to grant interlocutory injunction). As such, the order’s function and substance was to deny Morgan interlocutory injunctive relief pending the litigation of the various claims raised in his complaint and amended complaint. See Hughey v. Gwinnett County, 278 Ga. 740, 741 (1) (609 SE2d 324) (2004) (when determining whether order is directly appeal-able, we consider its function and substance rather than its nomenclature). Accordingly, the order fell under OCGA § 5-6-34 (a) (4), which permits a party to directly appeal from “[a]ll judgments or orders granting or refusing applications ... for interlocutory or final injunctions.” See Ga. Power Co. v. Hunt, 266 Ga. 331 (1) (466 SE2d 846) (1996) (where trial court’s decision effectively denied party’s request for interlocutory injunctive relief, it was the equivalent to a refusal to grant an interlocutory injunction application and was therefore directly appealable under OCGA § 5-6-34 (a) (4)); Spell v. Blalock, 243 Ga. 459, 460-461 (1) (254 SE2d 842) (1979) (trial court’s ruling on whether to continue a restraining order was directly appealable under predecessor to OCGA § 5-6-34 as an exception to the doctrine of finality of judgment); Nat. Hills Exchange v. Thompson, 319 Ga. App. 777-778 (736 SE2d 480) (2013) (trial court’s order extending temporary restraining order in effect granted directly appealable preliminary injunction); see also Dolinger v. Driver, 269 Ga. 141, 142 (1) (498 SE2d 252) (1998) (order granting temporary restraining order is directly appealable where it is entered after a lengthy adversary hearing and effectively grants the plaintiff all of the relief sought). But see West 80 Investors v. Chequers Investment Assoc., 214 Ga. App. 673, 674, n. 1 (448 SE2d 735) (1994) (noting in dicta that order dissolving temporary injunction generally did not fall within provisions of OCGA § 5-6-34 (a) (4), but nevertheless finding appellate jurisdiction over such order because “the trial court reached the core issue in [the] case,” rendering the order a final, appealable judgment).

3. Dissolution of the temporary restraining order.

As discussed above, the trial court’s dissolution of the temporary restraining order effectively denied Morgan’s application for further injunctive relief. “The granting and continuing of injunctions shall always rest in the sound discretion of the judge[.]” OCGA § 9-5-8; see Byelick v. Michel Herbelin USA, 275 Ga. 505, 506 (1) (570 SE2d 307) (2002). Morgan’s only enumerations of error are that the trial court failed to consider the allegations of his amended complaint in deciding whether to extend injunctive relief, and that the court required him to pay into the court registry the amount of his past-due mortgage payments as a condition of a continued injunction. We find no merit in either claim.

(a) Amended complaint. Although Morgan argues that the trial court should have considered the allegations of his amended complaint at the hearing, as the trial court noted, the issue before it at that point was limited to whether to continue the injunctive relief provided in the temporary restraining order. And it is clear from the record both that Morgan had the opportunity at the hearing to present evidence and argument pertaining to his request for continuing injunctive relief, and that the trial court has not yet addressed the other issues that Morgan raised in the amended complaint. Indeed, the record contains pleadings, filed after the trial court’s ruling denying further injunctive relief, that address the other issues raised in the amended complaint. We find no abuse of discretion in the trial court’s decision not to consider the amended complaint in ruling on whether to continue injunctive relief.

(b) Payment to court registry. At the hearing, Morgan admitted that he had borrowed money against his house and then stopped making payments on the mortgage. Although Morgan disputed his obligation to make the past-due payments, the trial court did not abuse its discretion in requiring him to place money to satisfy those payments into the court registry as a condition for granting injunctive relief pending resolution of the claims raised in his complaint and amended complaint. See generally Green v. Fuller, 223 Ga. 204, 205 (1) (154 SE2d 220) (1967) (finding no abuse of discretion in trial court’s dissolution of temporary restraining order, which had enjoined the execution of a power of sale in a deed to secure debt, where the party seeking continued injunctive relief failed to post a bond for the disputed amount into the court registry and conflicting evidence was presented on the material issues in the case).

Decided June 20, 2013.

Francis J. Morgan, pro se.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Steven G. Hall, Jonathan E. Green, Tracy L. Starr, Joshua N. Tropper, for appellee.

Judgment affirmed.

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


author: McFADDEN, Judge.

text:
    A13A0364.
    SIMS v. FIRST ACCEPTANCE INSURANCE COMPANY OF GEORGIA, INC.
    (745 SE2d 306)
   McFADDEN, Judge.

After Pamela Battle struck pedestrian Dexter Sims with her vehicle on December 5, 2008, Sims (through his next friend, Vicki Sims) brought a personal injury suit against Battle. In a separate action, First Acceptance Insurance Company of Georgia, Inc. sought a declaratory judgment that an automobile liability insurance policy it had issued to Battle was not in effect at the time of the accident. The trial court in the declaratory judgment action denied Sims’s motion to conduct discovery and granted judgment on the pleadings to First Acceptance. On appeal, Sims challenges the timeliness of the declaratory judgment action and argues that the trial court erred in granting the judgment on the pleadings and denying him discovery. As detailed below, we find that the declaratory judgment action was timely. We also find that First Acceptance’s motion for judgment on the pleadings was converted to a motion for summary judgment, that Sims has not shown that the trial court erred in granting, summary judgment, and that the trial court properly denied Sims’s motion to allow discovery. Accordingly, we affirm the judgment in favor of First Acceptance.

1. Facts and procedural background.

First Acceptance filed its complaint for declaratory judgment on November 16, 2011, in which it pertinently alleged the following facts. It issued an automobile liability insurance policy to Battle on July 31, 2008. On November 17, 2008, it sent Battle a notice of cancellation of the policy for nonpayment of premium, informing her that the cancellation would be effective November 30, 2008. The accident involving Sims occurred on December 5, 2008. The next day, Battle met with an insurance agent about reinstating her policy and, as a condition precedent of reinstatement, signed a “Statement of No Loss” in which she represented that she had not been in an accident during the period in which the policy had been cancelled. On the basis of this representation, and not knowing about the December 5 accident, First Acceptance accepted Battle’s payment of the overdue premium and reinstated the policy. First Acceptance subsequently undertook to defend Battle in the underlying tort action pursuant to a reservation of rights.

Battle admitted all of the above-cited facts in her answer to First Acceptance’s complaint in the declaratory judgment action. In his answer, Sims stated that he was without sufficient knowledge to admit or deny these facts (except as to the reservation of rights, which he denied on the ground that it “was not disclosed to [him] during discovery in the underlying tort action”). He also alleged that First Acceptance was barred from seeking a declaratory judgment because it did not bring its action in a timely manner.

On January 26, 2012, First Acceptance moved for judgment on the pleadings, alleging that there was no coverage for the incident involving Sims because First Acceptance had cancelled the policy and only reinstated it after the loss (known to Battle but undisclosed to the insurance company) had already occurred. In its motion, First Acceptance asserted that “[t]his case can be adjudicated on the pleadings or on summary judgment, if not on the basis of the current pleadings, within a matter of 60 to 90 days from the date of these motions. First Acceptance needs to conduct no discovery based on the responsive pleading of Battle herein.” (Emphasis supplied.) On February 29, 2012, Sims filed a response to the motion, and he attached exhibits, including letters exchanged between counsel for First Acceptance and Sims’s sister, medical records, and a police report, in support of his opposition to the motion.

On March 7, 2012, the trial court held a hearing on First Acceptance’s motion for judgment on the pleadings. The trial court heard testimony at the hearing, which was not taken down. On March 12, 2012, Sims filed a “motion to allow discovery” in the declaratory judgment action.

On March 26, 2012, the trial court entered an order, stating therein that “[b]ased upon the pleadings of the parties and testimony presented in court, the [c]ourt hereby denies Defendant Sims’[s] motion to allow discovery and grants the plaintiff’s motion for judgment on the pleadings.” (Emphasis supplied.) On the basis of that order, the trial court subsequently entered judgment in favor of First Acceptance

because the automobile liability insurance policy referenced [in the pleadings] was not in force or effect at the time of the Sims accident on December 5, 2008. Therefore, no coverage is afforded by First Acceptance for the claims asserted by Sims against Battle [in the underlying personal injury action].

2. Timeliness of the declaratory judgment action.

Citing Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215 (231 SE2d 245) (1976), Sims argues that First Acceptance cannot challenge policy coverage because it failed to file its declaratory judgment action in a timely manner. He points out that First Acceptance instead defended the underlying tort suit for more than two years and did not file the declaratory judgment action until the underlying suit was placed on a trial calendar.

Richmond, however, is inapposite. It “set forth a procedure by which an insurer could challenge policy coverage through a declaratory judgment where the insured refused to consent to a defense under a reservation of rights; this procedure included the requirement that the insurer seek immediate declaratory relief.” Boatright v. Old Dominion Ins. Co., 304 Ga. App. 119, 124 (2) (b) (695 SE2d 408) (2010) (citation and punctuation omitted). In contrast, nothing in the record in this case shows that Battle objected to a defense under the reservation of rights asserted by First Acceptance. Consequently, the amount of time that had passed and the stage of litigation reached in the underlying suit were not relevant to First Acceptance’s ability to challenge policy coverage, because First Acceptance “was not required to file a declaratory judgment action within any particular time period, or at all, to avoid estoppel.” Id. (citation omitted; emphasis supplied). Accord Kay-Lex Co. v. Essex Ins. Co., 286 Ga. App. 484, 491 (1) (b) (649 SE2d 602) (2007); Jacore Systems v. Central Mut. Ins. Co., 194 Ga. App. 512, 514 (1) (b) (390 SE2d 876) (1990).

3. Summary judgment motion.

(a) Conversion to summary judgment.

As an initial question, we must decide how to treat First Acceptance’s motion for judgment on the pleadings in light of Sims’s response thereto. Sims attached exhibits to his response to First Acceptance’s motion for judgment on the pleadings, and the trial court stated in its March 26, 2012 order that it considered “testimony” given at the March 7, 2012 hearing. Consequently, “[b]ecause the trial court considered matters outside the pleadings, the motion [for judgment on the pleadings] was converted to one for summary judgment.” Robertson v. Ridge Environmental, LLC, 319 Ga. App. 570, 571 (737 SE2d 578) (2013) (punctuation omitted).

Nonetheless, Sims contends that the trial court erred in converting the motion for judgment on the pleadings to a motion for summary judgment because it did so without notice. We disagree. When a motion is converted to a motion for summary judgment,

the trial court has the burden of informing the party opposing the motion that the court will consider matters outside the pleadings and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment. The 30-day notice period can be waived [, however,] through acquiescence of the party opposing the motion. Moreover, [any] error [in converting the motion] is not reversible absent a showing of harm.

Brooks v. RES-GA ALBC, LLC, 317 Ga. App. 264, 268 (2) (730 SE2d 509) (2012) (citations and punctuation omitted).

Here, the record does not contain an objection by Sims to the trial court’s consideration of evidence when deciding First Acceptance’s motion for judgment on the pleadings, and, in fact, Sims submitted evidence on his own behalf in response thereto.

Thus, [Sims] acquiesced in [the trial court’s consideration] of evidence in support of the motion [for judgment on the pleadings], and, in effect, requested that the motion be converted into one for summary judgment by submitting [his] own evidence and by urging the trial court ... to consider this evidence. Hence, all parties and the court treated the motion to dismiss as one for summary judgment. Where, as here, both parties submit evidence in connection with a motion [for judgment on the pleadings], there is no indication of prejudice due to the trial court’s failure to give notice of the actual nature of the pending action. Under the circumstances, [Sims] waived the right to any formal 30-day notice from the trial court.

Davis v. Phoebe Putney Health System, 280 Ga. App. 505, 507 (2) (634 SE2d 452) (2006) (citations and punctuation omitted). See also Lamb v. Fulton-DeKalb Hosp. Auth., 297 Ga. App. 529, 532 (1) (677 SE2d 328) (2009) (by failing to object and by submitting her own evidence, the party opposing the motion “acquiesced in [the movant’s] submission of evidence in support of its motion for judgment on the pleadings and also, in effect, requested that the motion be converted into a motion for summary judgment”) (citations omitted).

(b) Merits of summary judgment.

Sims has not shown by the record that the trial court erred in granting summary judgment to First Acceptance.

[O]n appeal from a grant of a motion for summary judgment, we review the evidence de novo in the light most favorable to the nonmovant to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. As the moving party, [First Acceptance] may do so by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the . . . case.

Burnside v. GEICO Gen. Ins. Co., 309 Ga. App. 897, 898 (714 SE2d 606) (2011) (punctuation and footnote omitted).

The trial court’s order specifically stated that it was granting judgment to First Acceptance “[b]ased upon the pleadings of the parties and testimony presented in court.” Without a transcript,

we cannot determine whether evidentiary submissions, stipulations, or statements in place by counsel were tendered at the hearing. Therefore, we must presume that the trial court’s findings are supported by competent evidence and that the court applied the appropriate standard in granting summary judgment.

Hatcher v. Family Dollar Stores of Ga., 280 Ga. App. 191, 191-192 (633 SE2d 568) (2006) (citation and punctuation omitted).

We further note that “under OCGA § 33-24-44[,] an insurance company is entitled to terminate an automobile insurance policy because of the nonpayment of premiums after delivering or mailing written notice of the cancellation to the insured in accordance with the statutory requirements.” Reynolds v. Infinity Gen. Ins. Co., 287 Ga. 86, 91 (694 SE2d 337) (2010). The evidence of record reveals no dispute that First Acceptance provided Battle with written notice of the cancellation, that the notice complied with the applicable statutory requirements, or that the cancellation was effective as of November 17, 2008. On December 8, 2008, after cancellation of the policy, and despite having been involved in an accident with Sims the preceding day, Battle signed the Statement of No Loss, which states in relevant part:

As a condition precedent to the reinstatement of my insurance, I, the undersigned, state that. . . I. . . [have] not had a claim or loss . . . or . . . been involved in an accident . . . related to the ownership, maintenance, or use of any motor vehicle covered by this policy, nor as a pedestrian, during the period beginning at 12:01 [a.m.] on the cancellation or expiration date and today’s date and time. . . .
I agree and understand that [First Acceptance] is relying solely upon this “Statement of No Loss” as an inducement to reinstate my policy with no lapse in coverage. I further understand that if a claim, loss, or accident has occurred for which coverage might be claimed under my policy during “the no loss,” the reinstatement granted by [First Acceptance] is null and void and no coverage shall exist under this policy.

(Emphasis supplied.) Given the lack of any evidence in the record giving rise to a genuine issue of material fact on whether Battle falsely represented that she had not been in an accident during the time her insurance had lapsed, we find no error in the trial court’s grant of summary judgment in favor of First Acceptance. See Burnside, 309 Ga. App. at 903 (4) (affirming the grant of summary judgment to the insurance company in declaratory judgment action because the insurance properly cancelled the policy).

4. Discovery motion.

Sims argues that the trial court erred by denying his motion to allow discovery and that the trial court should not have granted summary judgment in favor of First Acceptance before he had an opportunity to take additional discovery. We disagree.

Pursuant to OCGA § 9-11-56 (a), a party seeking to recover upon a claim may, at any time after the expiration of 30 days from the commencement of the action, move with or without supporting affidavits for summary judgment. Thus, the civil practice rules contemplate that a summary judgment motion may be filed and ruled upon prior to the completion of discovery. Under Uniform Superior Court Rule 6.2, the party opposing a summary judgment motion has 30 days to file a response unless otherwise ordered by the judge. The conditional language of the superior court rule clearly gives the trial judge discretion regarding the period of time by which a party must respond to a summary judgment motion.

Smyrna Dev. Co. v. Whitener Ltd. Partnership, 280 Ga. App. 788, 791 (3) (635 SE2d 173) (2006) (citations and punctuation omitted).

Decided June 20, 2013.

Link & Smith, Houston D. Smith III, Michael L. Werner, for appellant.

Smith, Moore & Leatherwood, J. Robert Persons, for appellee.

Pursuant to OCGA § 9-11-56 (f), however,

in order to extend the time to respond to a summary judgment motion so that additional discovery may be had, the party opposing the motion must file an affidavit explaining why he cannot present by affidavits facts essential to justify his opposition and therefore needs time to conduct or obtain additional discovery.

Smyrna Dev. Co., 280 Ga. App. at 791 (3) (citation and punctuation omitted). “Thus, if [Sims] needed additional discovery for [his] response to [First Acceptance’s] motion, [he] should have invoked OCGA § 9-11-56 (f).” Carr v. Kindred Healthcare Operating, 293 Ga. App. 80, 82 (1) (666 SE2d 401) (2008). Because Sims failed to do so, “[t]he trial court was not required to allow the completion of discovery before ruling on the motion for summary judgment.” Id. See also Fortson v. Brown, 302 Ga. App. 89, 90-91 (2) (690 SE2d 239) (2010).

Moreover, even if we construe Sims’s motion to allow discovery as a motion under OCGA § 9-11-56 (f), he has demonstrated no basis for reversal. “The granting or denial of a motion under OCGA § 9-11-56 (f) lies in the sound discretion of the trial judge and will not be reversed absent a showing of clear abuse of discretion.” Jar Allah v. Schoen, 243 Ga. App. 402, 406 (4) (531 SE2d 778) (2000) (punctuation omitted). Here, the trial court indicated in its order that it heard testimony at the hearing, and without a transcript, Sims “[has] not overcome the presumption of regularity of the court’s proceedings nor shown that the trial court failed to exercise its discretion in denying [his motion to allow discovery or to reserve judgment pending discovery].” Scott v. Govt. Employees Ins. Co., 305 Ga. App. 153, 157 (3) (700 SE2d 198) (2010) (punctuation omitted). See also Gilco Investments v. Stafford Cordele, LLC, 267 Ga. App. 167, 169-170 (1) (598 SE2d 889) (2004). Accordingly, we find no error in the trial court’s denial of Sims’s motion to allow discovery.

Judgment affirmed.

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