author: Dillard, Judge.

text:
    A13A1445.
    MARTINEZ v. THE STATE.
    (750 SE2d 504)
   Dillard, Judge.

Following a jury trial, Rodolfo Lara Martinez was convicted of five counts of forgery in the first degree and two counts of identity fraud. Martinez’s conviction on one of the two counts of identity fraud was later reversed by the trial court in its order on a motion for new trial. On appeal, Martinez contends that, as to the forgery counts, the indictment fatally varied from the proof at trial. He also claims that the evidence was insufficient to support his remaining conviction for identity fraud, and that the trial court expressed an improper opinion as to what had been proven at the trial. We agree with Martinez that in August 2007, the fraudulent possession and use of the identifying information of corporations did not fall within the ambit of Georgia’s identity-fraud statute, and so we reverse his conviction on that count. Martinez’s other claims, however, are without merit, and so we affirm his convictions for forgery in the first degree.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that on August 14, 2007, Martinez attempted to cash a check at Tower Package Store. The check, dated August 10, 2007, purported to be a payroll check issued by Labor Staffing, Inc., and payable to Martinez in the amount of $139.36. The cashier followed the store’s usual practice by attempting to access Martinez’s information on her computer, but instead she received instructions to immediately contact store security. The security officer determined that, according to the computer-generated information, the check was fraudulent, and so he detained Martinez and notified the DeKalb County Police.

When the responding detective arrived, the security officer gave him copies of four checks that had been previously cashed at the store by Martinez, but that had been returned by the bank as counterfeit. And after the detective arrested Martinez and read him his Miranda rights, Martinez claimed that he was “paid that money for doing construction work.” But when the detective offered to drive Martinez to any location where he performed work in order to confirm his story, Martinez was unable to remember any work location or name, address, or telephone number associated with his alleged employers.

At trial, the evidence showed that Martinez previously cashed four checks at the Tower Package Store dated May 25, May 26, May 29, and June 2, 2007, in the amounts of $98.76, $97.86, $148.61, and $146.64, respectively. All four checks purported to be payroll checks issued by Staff Zone, Inc. But according to Staff Zone’s manager, the company did not issue any payroll checks to Martinez. The manager also examined photocopies of the checks purported to have been issued by Staff Zone and testified that they were not, in fact, company checks. And as to the check purported to have been issued by Labor Staffing, Inc., and which Martinez attempted to cash at Tower Package Store on August 14, 2007, Labor Staffing’s employee in charge of accounting and payroll testified that it was not an authentic corporate check and that the real check bearing the same check number had already been issued by the company to another person in a different amount.

Ultimately, the jury found Martinez guilty of two counts of identity fraud and five counts of first-degree forgery. Martinez moved for a new trial, and the trial court found that the evidence was insufficient to sustain Martinez’s conviction on one of the two counts of identity fraud. Martinez’s motion for new trial was otherwise denied, and this appeal follows.

1. Martinez contends that the evidence was insufficient to support his forgery convictions. His arguments, however, are based on an alleged variance between the indictment and the proof presented by the State at trial. But setting aside the question of whether Martinez waived his fatal-variance claims by failing to raise them in a timely fashion below, they are nonetheless without merit.

(a) As to the four counts of forgery in the first degree corresponding to the four checks purportedly issued by Staff Zone, Martinez contends that the State failed to prove these crimes because the indictment alleged, but the evidence failed to show, that these checks were actually drawn on Staff Zone’s account. We disagree with Martinez that there was a variance between the indictment and the proof presented by the State at trial.

At the outset, we note that a person commits the crime of first-degree forgery if

with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.

And in four separate counts, the indictment alleged that Martinez possessed with intent to defraud, and that he uttered and delivered, four checks payable to himself, specifically identified by number, date, amount, and as also “drawn on Wachovia Bank, N. A. on the account of Staff Zone Inc.” But according to Staff Zone’s manager, the account number on the checks presented by Martinez was not Staff Zone’s actual account number with Wachovia. As such, Martinez argues that the evidence showed that the checks were not drawn on Staff Zone’s account, whereas the indictment charged him with uttering checks that were actually drawn on Staff Zone’s account.

In considering Martinez’s argument, our analysis necessarily begins with the general rule that “[i]f the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance.” But in applying the fatal-variance rule, we must be ever mindful that Georgia no longer employs “an overly technical application of the ... rule, focusing instead on materiality.” And the rule that allegations and proof must correspond is based upon the obvious requirements “(1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense.” Thus, a variance is not fatal if the accused is “definitely informed as to the charges against him and is protected against another prosecution for the same offense.”

And here, the four checks at issue appear on their face to be drawn on Staff Zone’s account at Wachovia. That the checking account number printed on the checks was not the correct account number was one of several ways in which Staff Zone’s manager identified the checks as not being authentic company checks. Moreover, the logo and signatures on actual Staff Zone checks differed from those on the forged checks. But the indictment did not allege that the four checks contained Staff Zone’s correct banking account number. Accordingly, we discern no actual, much less fatal, variance between the indictment and the evidence. Furthermore, the indictment—which also identifies each check by number, date, and amount—sufficiently apprised Martinez of what writings he was accused of forging, and he is protected from further prosecution for these offenses because, inter alia, copies of all the checks referenced in the indictment were introduced into evidence. For the foregoing reasons, as to these four counts, we “reject any fatal variance claim and hold the evidence was sufficient” for a rational trier of fact to find Martinez guilty beyond a reasonable doubt of forgery in the first degree.

(b) Martinez also contends that the evidence was insufficient to establish that he was guilty of forgery in the first degree with respect to the check purportedly drawn on the account of Labor Staffing. The indictment alleged, in pertinent part, that Martinez knowingly possessed with intent to defraud, and did utter and deliver, “a check, being No. 94369 dated 8/13/2007, in the amount of $139.36 payable to [Martinez] drawn on SunTrust Bank on the account of Labor Staffing Inc.” The check adduced at trial was dated August 10, 2007, not August 13, 2007, as alleged. But notwithstanding the indictment’s error, the other information identifying the forged check, including the check number, dollar amount, and the designated payee, drawee bank, and account holder, was sufficient to apprise Martinez of the charge against him. Nor does Martinez face further prosecution for the same offense. Accordingly, we find no fatal variance here either. Additionally, as to this count, we conclude that a rational trier of fact could find that Martinez was guilty beyond a reasonable doubt of forgery in the first degree.

2. In three claims of error, Martinez asserts that the crime of identity fraud, as applicable to the August 2007 incident at issue, protected only the identifying information of natural persons and not corporations. And here, Martinez was convicted of identity fraud for obtaining the bank account number of the corporate victim, Labor Staffing, Inc. Thus, Martinez contends that the evidence was necessarily insufficient to show that he violated OCGA § 16-9-121 (2007), as then applicable. He further asserts that his trial counsel, not realizing that OCGA § 16-9-121 (2007) did not apply to corporate victims, was ineffective in failing (i) to object to the trial court’s instruction to the jury as to the elements of identity fraud, and (ii) by not filing a dispositive demurrer or motion in arrest of judgment. In contrast, the State argues that a corporation could be a victim of identity fraud under the 2007 version of the statute and that the evidence of the crime was, therefore, sufficient, and Martinez’s trial counsel effective.

It is undisputed that before May 24, 2007, a victim of the crime of identity fraud was not limited to natural persons. Under OCGA § 16-9-121 (1), as amended in 2002, a person committed identity fraud if, inter alia, he or she “with the intent unlawfully to appropriate resources of or cause physical harm to that person . . . [o]btains or records identifying information of a person which would assist in accessing the resources of that person or any other person” Under OCGA § 16-1-3, which contains the definitions of certain words used in Title 16, and which has not been amended since 1982, a “person” is “an individual, a public or private corporation, an incorporated association, government, government agency, partnership, or unincorporated association.” Thus, a “person,” which was not separately defined for purposes of the article governing identity fraud, necessarily included corporate victims before May 24, 2007.

And under the current version of the statute, a person commits the crime of identity fraud when, inter alia, “he or she willfully and fraudulently... [w]ithout authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person.” Again, in light of the definition of the term for purposes of Title 16, there is no doubt that a “person” encompasses corporate victims.

But in August 2007, when Martinez used the identifying information of Labor Staffing, the law provided that a person commits the offense of identity fraud when, as applicable here, “he or she willfully and fraudulently . . . [w]ithout authorization or consent, uses or possesses with intent to fraudulently use, identifying information concerning an individual.” And unlike “person,” there is no definition for “individual” in Title 16. The question squarely presented, then, is whether the fraudulent use or possession of the identifying information of a corporation was punishable as the crime of identity fraud under OCGA § 16-9-121 (2007).

And as with any question of statutory interpretation, we necessarily begin our analysis with familiar and binding canons of construction. Indeed, in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant ” And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, and read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would.” In sum, where the language of a statute is plain and susceptible of only one natural and reasonable construction, “courts must construe the statute accordingly.”

In the case sub judice, we first consider the ordinary meaning of “individual,” as it is not a term of art or a technical term. In its common meaning, an “individual” is an actual human being. And this appears to be the way “individual” is used in the definition of “person” in OCGA § 16-1-3(12), so as to differentiate a natural person from other entities, such as corporations. OCGA § 16-9-121 (2007) also used the term “person,” but in the context of the perpetrator or in the context of fraud committed “on another person,” but not in the context of the victim whose identifying information was being used or possessed. This, of course, is entirely consistent with the General Assembly having intended that “individual” refer to a natural person, not a corporation.

Furthermore, and of some significance, when the General Assembly again changed the law in 2010, it was “[t]o amend Article 8 of Chapter 9 of Title 16 of the Official Code of Georgia Annotated, relating to identity fraud, so as to revise[ \ a term so as to include] ] businesses as potential identity theft victims.” And tellingly, the law was then amended so as to substitute “person” for “individual” in the text of OCGA § 16-9-121 (a) (1), (4), and (5). It follows, then, that no rational trier of fact could have found beyond a reasonable doubt that Martinez committed the crime of identity fraud against “an individual” by using the identifying information of Labor Staffing, a corporation, in a manner otherwise prohibited by OCGA § 16-9-121 (2007). Accordingly, Martinez’s identity-fraud conviction must be reversed, and Martinez’s claims that his trial counsel rendered ineffective assistance are moot.

3. Lastly, Martinez contends that the trial court violated OCGA § 17-8-57 by assuming certain facts in its instruction to the jury. We disagree.

OCGA § 17-8-57 provides that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” And here, Martinez maintains that this statute was violated when the trial court instructed the jury as follows:

The intent of the accused to defraud is an essential element of the crime of forgery. As one of the essential elements of the crime, it is the duty of the State to prove that in writing the name of Labor Staffing, Inc. or Staff Zone, Inc. and in presenting the writing as a genuine document it was the intent of the accused to defraud Tower Package Store.

Martinez argues that this instruction assumes that he wrote the checks and presented them, and that it was not for the trial court to comment on such facts. However, the trial court’s instruction must be considered as a whole, and Martinez cannot necessarily show error by highlightinganarrowportionofthe jury charge. Rather, OCGA § 17-8-57 is violated only when the trial court’s instruction, “considered as a whole, assumes certain things as facts and intimates to the jury what the judge believes the evidence to be,” and the portion of the instruction complained of only addresses intent. And here, the trial court previously instructed the jury as to the elements of forgery in the first degree, explaining that it was for the State to prove those elements beyond a reasonable doubt. The trial court also defined a writing for purposes of forgery, knowledge as an element of the crime, and reiterated that the State must prove beyond a reasonable doubt that the defendant delivered a forged document. Thus, viewing the charge as a whole, a reasonable juror would not have understood the charge to mean that the trial court was expressing an opinion that Martinez had, in fact, written and presented the checks at issue. Accordingly, we find no error.

Decided November 21, 2013

Reconsideration denied December 5, 2013

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

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

        See Drammeh v. State, 285 Ga. App. 545, 546 (1) (646 SE2d 742) (2007).

        Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

        See Walker a State, 323 Ga. App. 685, 688 (2) (747 SE2d 691) (2013) (holding that the fatal-variance claim was waived for failure to raise it below); Palmer v. State, 286 Ga. App. 751, 753-754 (2) (650 SE2d 255) (2007) (same).

        See OCGA § 16-9-1 (a) (2007). This Code section was amended in 2012, but the prior version applies here. See Ga. L. 2012, p. 899.

       For example, Count 3 of the indictment alleges, in part, that Martinez “with intent to defraud, did knowingly possess a certain writing, to wit: a check, being No. 134632 dated 6/2/2007, in the amountof $146.64 payable to [Martinez] drawn on Wachovia Bank, N. A. on the account of Staff Zone Inc. . . .”

        Ross v. State, 195 Ga. App. 624, 625 (1) (394 SE2d 418) (1990) (punctuation omitted).

        Haley v. State, 289 Ga. 515, 529 (3) (a) (712 SE2d 838) (2011) (punctuation omitted); see also White v. State, 323 Ga. App. 660, 662 (2) (744 SE2d 857) (2013) (“We no longer adhere to an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused.”).

        McCrary v. State, 252 Ga. 521, 523 (314 SE2d 662) (1984) (punctuation omitted).

        Nelson v. State, 269 Ga. App. 103, 106 (2) (603 SE2d 691) (2004) (punctuation omitted).

        See, e.g., Veasey v. State, 322 Ga. App. 591, 594 (1) (b) (745 SE2d 802) (2013) (finding indictment detailed enough for defendant to understand what he was accused of taking, and from whom).

        See Holder v. State, 242 Ga. App. 479, 480 (2) (529 SE2d 907) (2000) (finding that, because alleged bad check was introduced into evidence, defendant did not face another prosecution thereon even though there was a slight discrepancy in the amount of the check alleged in the indictment and the proof at trial).

        Evans v. State, 318 Ga. App. 706, 715 (6) (734 SE2d 527) (2012).

        See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        See Smith v. State, 317 Ga. App. 801, 803-804 (1) (732 SE2d 840) (2012) (concluding that although the indictment for forgery improperly identified the check number as the bank routing number, defendant was nevertheless sufficiently informed of the writing upon which the forgery count was based); Serna v. State, 308 Ga. App. 518, 520-521 (1) (707 SE2d 904) (2011) (finding that where the indictment notified defendant of the date of the offense, the type of offense, and the basis for the offense, and defendant was convicted of the same offense listed in the indictment, indictment charging defendant with possession of nonexistent compound with a name similar to actual controlled substance was not a fatal variance); Grier v. State, 198 Ga. App. 840 (403 SE2d 857) (1991) (finding typographical error in describing date of prior conviction did not create fatal error in indictment charging possession of firearm by convicted felon); Bowman v. State, 144 Ga. App. 681, 682 (5) (242 SE2d 480) (1978) (variation in allegation and proof as to amount of soybeans stolen could not have harmed the defendant).

        See Holder, 242 Ga. App. at 480 (2).

        See Jackson, 443 U. S. at 319 (III) (B).

       Although the j ury found that Martinez was guilty of a second count of identity fraud with respect to corporate victim, Staff Zone, the trial court reversed that conviction for insufficient evidence.

        See OCGA § 16-9-121 (1) (2002) (emphasis supplied).

       OCGA § 16-1-3 (12).

        See Lee v. State, 283 Ga. App. 826, 826-27 (1) (642 SE2d 876) (2007) (finding that “Snelling Personnel Services, a company was a “person” for purposes of the crime of identity theft).

       OCGA § 16-9-121 (a) (1) (emphasis supplied).

       OCGA § 16-9-121 (a) (1) (2007) (emphasis supplied), effective May 24, 2007. See Ga. L. 2007, p. 450, § 7.

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted); see also Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012) (same).

        See Deal, 294 Ga. at 172 (1) (a) (“To that end, we must afford the statutory text its plain and ordinary meaning.”) (citation and punctuation omitted); State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies) . . . .”).

        See Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”); Hendry v. Hendry, 292 Ga. 1, 3 (1) (734 SE2d 46) (2012) (same).

        Deal, 294 Ga. at 172-173 (1) (a); see also Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013) (same).

        Luangkhot, 292 Ga. at 424 (1) (punctuation omitted); see also Deal, 294 Ga. at 173 (1) (a) (“g]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.”) (punctuation omitted).

        See OCGA § 1-3-1 (b) (providing that “[i]n all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter”); Harris v. State, 286 Ga. 245, 246 (3) (686 SE2d 777) (2009) (applying same).

        See Mohamad v. Palestinian Auth.,_U. S._,_(II) (A) (132 SCt 1702, 182 LE2d 720) (2012) (looking first to a word’s ordinary meaning when a statute does not define a term and noting that “an individual” normally means “a human being, a person”); The Compact Oxford English Dictionary 880 (2d ed. 1991) (defining “individual” as, inter alia, “[a] single human being”).

        See OCGA § 16-9-121 (a) (2) (2007) (a person commits identity theft when he or she wilfully and fraudulently “[ujses identifying information of an individual under 18 years old over whom he or she exercises custodial authority’); OCGA § 16-9-121 (a) (3) (2007) (a person commits identity theft when he or she wilfully and fraudulently “[u] ses or possesses with intent tofraudulentlyuse.identifyinginformationconcerningadeceasedindividual”); OCGA § 16-9-121 (a) (4) (2007) (a person commits identity theft when he or she wilfully and fraudulently “[c]reates, uses, or possesses with intent to fraudulently use, any counterfeit or fictitious identifying information concerning a fictitious individual with intent to use such counterfeit or fictitious identification information for the purpose of committing or facilitating the commission of a crime or fraud on another person”); OCGA § 16-9-121 (a) (5) (2007) (a person commits identity theft when he or she wilfully and fraudulently “[w]ithout authorization or consent, creates, uses, or possesses with intent to fraudulently use, any counterfeit or fictitious identifying information concerning a real individual with intent to use such counterfeit or fictitious identification information for the purpose of committing or facilitating the commission of a crime or fraud on another person”).

        See The Compact Oxford English Dictionary 1581 (2d ed. 1991) (defining “revise” as, inter alia, “Tb look or read carefully over, with a view toward improving or correcting... [t]o go over again, to re-examine, in order to improve or amend . . . .”).

        See The Compact Oxford English Dictionary 831 (2d ed. 1991) (defining “include” as, inter alia, “[t]o . . . embrace, comprise, contain ... to place in a class or category’).

       Ga. L. 2010, p. 568 (emphasis supplied).

         The State’s arguments to the contrary are unavailing. It is of no consequence that the scope of OCGA § 16-9-120 etseq. (2007) was arguably broadened in some respects, or that other, more universal provisions of this statutory scheme can be construed as applying to business victims of identity theft (e.g., the venue provision). The fact remains that the “elements of offense” outlined in OCGA § 16-9-121 (2007) make it abundantly clear that the only possible victim of this offense is “an individual,” not a business. Furthermore, even if we assume arguendo that the State’s reading of these other “conflicting” provisions is accurate, this changes nothing. At best, these provisions arguably create an ambiguity as to the meaning of “individual,” and we have repeatedly held that “criminal statutes must be strictly construed against the State.” Hedden v. State, 288 Ga. 871, 875 (708 SE2d 287) (2011) (punctuation omitted). Accord Davis v. State, 273 Ga. 14, 15 (537 SE2d 663) (2000). See also State v. Marlowe, 277 Ga. 383, 386 (1) (b), n.24 (589 SE2d 69) (2003) (noting that although another construction of the criminal statute at issue was possible, “the legislature’s choice is not clear and an ambiguous criminal statute must be strictly construed against the State”); Busch v. State, 271 Ga. 591, 595 (523 SE2d 21) (1999) (construing criminal statute narrowly in light of rule requiring its strict construction).

       We note that although Martinez did not demur to the indictment, he does not need to demonstrate that the indictment was void in order to show that the evidence was insufficient to support his conviction for violating OCGA § 16-9-121 (2007). See, e.g., McKay v. State, 234 Ga. App. 556, 556-560 (1), (2) (507 SE2d 484) (1998) (reviewing claim that evidence was insufficient to support appellant’s conviction for selling marijuana within 1,000 feet of housing project in violation of OCGA § 16-13-32.5, but refusing to consider claim that indictment failed to allege any violation of OCGA § 16-13-32.5); Williams v. State, 162 Ga. App. 350, 352-53 (291 SE2d 425) (1982) (reviewing sufficiency of evidence under standard of Jackson v. Virginia, but refusing to accept claim of an allegedly void indictment as a proper basis to challenge conviction on the general grounds).

        Simmons v. State, 291 Ga. 705, 708 (5) (733 SE2d 280) (2012); see Parker v. State, 276 Ga. 598, 600 (5) (581 SE2d 7) (2003) (viewing contested charge in context of instruction as a whole).

        See, e.g., Pullen v. State, 315 Ga. App. 125, 129-130 (3) (726 SE2d 621) (2012) (holding, upon consideration of the jury charge as a whole, that no reasonable juror could have construed it to be an expression of the trial court’s own opinion).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A13A1484, A13A1485, A13A1486, A13A2131.
    In re ESTATE OF HUBERT (four cases).
    (750 SE2d 511)
   McFadden, Judge.

These cases, which we have consolidated for appeal, involve a dispute between four siblings who are co-executors of their mother’s estate. The parties dispute how to achieve the intent of their mother, Ruth Swann Hubert (“Mrs. Hubert”), to equalize estate assets among them. Judith Hubert Manning brought a petition in probate court against Richard Hubert, Marilyn Hubert Kemper, and Deborah Hubert to enforce a mediated settlement agreement regarding the distribution of the estate. Richard Hubert, Marilyn Kemper, and Deborah Hubert counterclaimed for, inter alia, breach of fiduciary duty against Judith Manning. After a bench trial, the probate court entered an order of judgment in which she set forth how the estate was to be distributed, found that Judith Manning had not breached her fiduciary duty, ordered all of the siblings removed as co-executors, and ordered Richard Hubert and Deborah Hubert to pay attorney fees to Judith Manning. Richard Hubert, Marilyn Kemper, and Deborah Hubert appealed in Case Nos. A13A1484, A13A1485 and A13A1486, respectively, and the probate court ordered them each to post a bond pursuant to OCGA § 53-7-55, which allows a probate court, upon good cause, to require additional security from the personal representative of an estate.

Richard Hubert, Marilyn Kemper, and Deborah Hubert argue that, in ruling on how the estate assets should be distributed among the parties, the probate court improperly modified the terms of the settlement agreement in her order. We agree, because the unambiguous terms of the settlement agreement require an accountant to complete certain determinations before the equalization of the estate assets can be calculated, and it is undisputed that the accountant has not yet completed those determinations. Accordingly, we reverse that part of the probate court’s order regarding the distribution of estate assets and remand the case for proceedings not inconsistent with this opinion. In light of this ruling, we also reverse the award of attorney fees against Richard Hubert and Deborah Hubert.

In addition, Richard Hubert challenges the probate court’s ruling that Judith Manning did not breach her fiduciary duty. He challenges the probate court’s admission of the testimony of Judith Manning’s husband on the value of certain real property that the husband owned. He challenges the probate court’s denial, as untimely, of his motion to recuse. And Marilyn Kemper and Deborah Hubert challenge their removal as co-executors. We find no error in any of these rulings, and we affirm them.

Because we affirm the dismissal of the parties as co-executors of the estate, Richard Hubert’s appeal from the bond order in Case No. A13A2131 is moot.

Accordingly, as detailed below, we affirm in part and reverse in part the probate court’s order in Case Nos. A13A1484, A13A1485 and A13A1486, and remand those cases with direction, and we dismiss as moot the appeal in Case No. A13A2131.

1. Facts and procedural posture.

The parties’ father, O. C. Hubert, died in 1986, leaving a substantial estate. Litigation over the estate ensued, resulting in a settlement agreement that, among other things, placed four pieces of real property into four qualified terminable interest property trusts (the QTIPs). See IRC § 2056 (b) (7). Each QTIP held the real property in trust for one of the four Hubert children, who served as trustee for that QTIP, and each QTIP designated Mrs. Hubert as the income beneficiary for her life. Under the settlement, Mrs. Hubert had general power of appointment over a trust containing other assets. See IRC § 2056 (b) (5). She placed some of those assets into three trusts (the GPA trusts) that she then contributed into the QTIPs associated with Richard Hubert, Marilyn Kemper, and Deborah Hubert, to equalize their asset value with that of Judith Manning’s QTIP, which contained more valuable real property.

As part of Mrs. Hubert’s estate planning, the QTIP assets were contributed to limited partnerships affiliated with the Hubert family, giving the QTIPs ownership interests in the limited partnerships. This reduced the marketability of the QTIP assets, discounting their value for estate tax purposes. Initially, Richard Hubert, Marilyn Kemper, and Deborah Hubert each contributed the real estate in their QTIPs to Hubert Properties, LLLP. Subsequently, they contributed their ownership interests in Hubert Properties to Hubert Consolidated, LLLP. Judith Manning contributed the real estate in her QTIP to Manning Family Investments, LLLP.

Mrs. Hubert died in 2006, and the four Hubert children were named co-executors of her will. Her will pertinently expressed her intent “to equalize among [her] four children (and their respective lineal descendants) the bequests made by [her] deceased Husband pursuant to (1) his Last Will and Testament. . . , (2) the Settlement Agreement [pertaining to her husband’s estate], and (3) any gifts or other bequests [she] may have made during [her] lifetimef.]” The parties disputed how to accomplish this goal. A mediation facilitated by Judge Marion Pope on that issue led to the 2010 settlement agreement that is the subject of this case.

The 2010 settlement agreement designated an accountant to review the books and records of specified Hubert-related entities (including Hubert Properties, Hubert Consolidated, and Manning Family Investments) and to make certain determinations about the fair market value of assets and liabilities contributed to those entities. The accountant produced a draft report, aspects of which the parties disputed. The accountant also identified open issues about which he needed more information or had unanswered questions.

Judith Manning then filed a petition in the probate court seeking to enforce the 2010 settlement agreement. Richard Hubert, Marilyn Kemper, and Deborah Hubert counterclaimed for, inter alia, breach of fiduciary duty, essentially alleging that Judith Manning personally benefitted from the assets in her QTIP at Mrs. Hubert’s expense. The probate judge voluntarily recused, and the Honorable Adele Grubbs of the Superior Court of Cobb County, who was presiding over a related superior court matter, was designated to sit as the probate court in this case.

After a bench trial, the probate court entered an order holding that “[e]ach of the four children should receive $4,132,302 to equalize the estate.” This meant that Marilyn Kemper and Deborah Hubert would pay certain amounts to the estate, and the estate would pay certain amounts to Judith Manning and Richard Hubert. The probate court found no evidence to support the counterclaim for breach of fiduciary duty. The probate court ordered all four children removed as executors and appointed a new executor. And the court ordered Richard Hubert and Deborah Hubert to pay $60,000 in attorney fees to Judith Manning under OCGA § 13-6-11 for stubborn litigiousness. The probate court denied motions filed by Richard Hubert and Deborah Hubert for, alternatively, a new trial or an amendment of its findings of fact and conclusions of law. Richard Hubert, Marilyn Kemper, and Deborah Hubert appealed, and the probate court ordered that each of them post a $5,000,000 bond pursuant to OCGA § 53-7-55.

2. Enforcement of the settlement agreement.

“A trial court’s order on a motion to enforce a settlement agreement based on undisputed facts is subject to de novo review.” Anaya v. Coello, 279 Ga. App. 578, 579 (632 SE2d 425) (2006) (citations omitted). But if the trial court made factual findings in deciding a motion to enforce a settlement agreement, we will uphold those findings if there is any evidence to support them. In re Estate of Huff, 287 Ga. App. 614, 615 (652 SE2d 203) (2007).

The unambiguous terms of a settlement agreement must be strictly enforced and cannot be modified by the trial court. Scherer v. Testino, 291 Ga. 75, 77 (1) (727 SE2d 490) (2012); see King Cotton v. Powers, 200 Ga. App. 549, 550 (2) (409 SE2d 67) (1991) (“It is the duty of the courts to construe and enforce contracts as made, and not to make them for the parties.”) (citation, punctuation and emphasis omitted). Richard Hubert, Marilyn Kemper, and Deborah Hubert argue that the probate court improperly modified the settlement agreement in several respects.

First, they argue that the probate court improperly decided the final issue of how the estate was to be equalized, rather than merely resolving the disputed or open items arising from the accountant’s draft report and then allowing the accountant to complete his work. As detailed below, we agree that the procedures established by unambiguous language of the settlement agreement do not permit equalization until after the accountant’s identified issues are resolved and the accountant issues his final report. Consequently, the case must be remanded for these steps to occur.

Second, they argue that the probate court improperly construed a provision of the settlement agreement requiring the removal of all discounts when valuing those assets to determine equalization. They argue that this requirement does not apply to what they refer to as “intermediate discounts” that arose when they contributed their interests in Hubert Properties into Hubert Consolidated. As detailed below, we find that whether the “intermediate discounts” are the type of discounts that must be removed under the settlement agreement is a factual question appropriate for the probate court’s resolution on remand.

Third, they argue that the probate court improperly construed the settlement agreement to impose interest upon certain payments that the estate had made to Richard Hubert, Marilyn Kemper, and Deborah Hubert, when those payments were taken into account in the equalization calculation. As detailed below, we agree that the settlement agreement does not provide for such imposition of interest.

(a) Procedures for determining equalization.

Paragraph 1 of the settlement agreement provides, among other things, that “[t]he Executors of the Estate shall engage the firm of Frazier & Deeter, LLC, a qualified independent certified public account firm (the Accountant’) for the limited purpose of examining the books and records of [the specified Hubert-related entities] (the ‘Entities’).” The settlement agreement sets forth the scope of the accountant’s examination, which is to include certain determinations, made in accordance with Generally Accepted Accounting Principles and the entities’ limited partnership agreements, regarding: the formation of the entities; the fair market value of assets contributed to the entities; each trust’s percentage interest in the entities; other transactions affecting equity interests in the entities; and, pertinently,

the determination of the assets and liability of each of the Entities for purposes of the valuation thereof as of the date of death of Mrs. Ruth S. Hubert (but not any review or critique of the valuation methodology employed by the appraisers engaged for the Estate for federal estate tax purposes unless specifically otherwise authorized by the parties).

The settlement agreement requires the entities to make available to the accountant certain books and records, along with “such other materials as the Accountant may request in order to enable him to provide the opinion sought.” The settlement agreement then provides:

If any disagreement arises among the parties regarding the Accountant’s treatment of any items within an Entity, or any other issues which the Accountant identifies as being relevant to the inquiry, and if that disagreement cannot be resolved among the Parties, the Parties will submit the matter for final determination to Judge Marion Pope for determination so long as he is required to make such determination in conformity with the law governing the partnerships and generally accepted accounting principles and in accordance with the Limited Partnership Agreement of each entity.

The settlement agreement further provides that, “[o]nce all such issues are identified and resolved, the Parties will make any such adjustments, if any, necessary to properly account for the equity interests of each participant in each Entity and the valuation thereof.”

Paragraph 2 of the settlement agreement provides that

[ajfter the examination in Number 1 above is complete the Parties shall recompute the allocation of all assets among Deborah, Richard, Judith, and Marilyn (the “Children”) upon the death of Mrs. Hubert, including the net asset value passing to each of them from and through the respective QTIP trusts, GPA trusts, and the Estate.

(Emphasis supplied.) It provides details about how the parties will perform this computation (including the removal of discounts, discussed infra), and it states that this computation “shall implement the provisions of Mrs. Hubert’s Last Will and Testament in the manner reflected in [an exhibit attached to the settlement agreement].” The settlement agreement then imposes the costs of administration expenses and taxes equally upon each of the four Hubert sibling’s shares, at which point, according to the settlement agreement, “the Estate has been equalized.” The referenced exhibit provides a model for the equalization computation.

Thus, the unambiguous language of the settlement agreement sets forth a two-step process for equalizing the estate among the four Hubert siblings. In the first step, the accountant is to make certain determinations, and any disputes among the parties regarding those determinations, or any open questions raised by the accountant, shall be resolved. Then, in the second step, the parties are to use the accountant’s determinations to reallocate the estate assets among them according to specific parameters.

At trial, the accountant testified that he had not completed the work called for in Paragraph 1 of the settlement agreement because of outstanding questions and other disputed issues. The parties apparently agreed that the probate court, in lieu of Judge Pope, could resolve the open issues identified by the accountant. Richard Hubert, Marilyn Kemper, and Deborah Hubert put into evidence an exhibit compiled by the accountant that reflected those issues, and in his appellate brief, Richard Hubert summarizes the open issues as:

(1) [R]emoval of the allocation of a portion of the estimated estate tax liability of O. C. Hubert;
(2) Adjustments based on an over-distribution to Mrs. Hubert by Hubert Properties during the first [eight] years after its formation . . . ;
(3) Direction as to whether [the accountant’s] assumption is correct in his adjusted percentages of assets from [another of the Hubert-related entities] . . . ;
(4) Direction as to how to handle the fact that [Manning Family Investment’s] values placed on properties other than [Judith Manning’s] QTIP... at the date of contribution were determined by Aymar Manning without documentation; and
(5) The need for additional support for distributions made to Mrs. Hubert.

(Citations omitted.)

Instead of addressing the open issues identified by the accountant and then returning the matter to the accountant, however, the probate court performed the final equalization calculation called for in Paragraph 2. This approach did not comply with the procedure established by the unambiguous terms of the settlement agreement.

Judith Manning argues that the parties stipulated to this approach during a proceeding in their related case before Judge Grubbs in the superior court. Those proceedings are properly before us because, at the trial in this case, Judith Manning’s counsel read into the record the relevant excerpts of the transcript of the superior court proceeding. But those excerpts do not support her argument. They show merely a representation by her counsel that the parties had agreed for the probate court to try “every . . . dispute that exists between these parties,” aside from a dispute concerning Judith Manning’s ownership in a Hubert-related entity that had been raised in the proceedings in this case but also was the subject of the related superior court case. This reference appears to concern the parties’ agreement to remove that additional dispute from the matters before the probate court. In any event, the language to which Judith Manning points does not authorize the probate court to substitute a different mechanism for distributing the estate from that set forth in the parties’ settlement agreement. And, contrary to Judith Manning’s assertion of a stipulation, Richard Hubert, Marilyn Kemper, and Deborah Hubert continued to argue throughout the probate court proceedings that, to enforce the settlement agreement, the probate court must return the matter to the accountant after resolving the open issues in accordance with Paragraph 1.

The probate court’s desire to bring an end to this protracted litigation between family members is understandable. In enforcing the parties’ settlement agreement, however, the probate court was bound to follow the procedures to which the parties agreed, inefficient though they might be. The probate court diverged from those procedures when she declined to decide the accountant’s open issues and then send the matter back to him to complete the work called for in Paragraph 1, but instead proceeded to make the Paragraph 2 equalization calculation. Accordingly, we must reverse that portion of the probate court’s order and remand the case for the probate court to enforce the procedures set forth in the settlement agreement, as written, and for other proceedings not inconsistent with this opinion.

(b) Treatment of discounts.

One of the accountant’s unresolved questions concerned the treatment of discounts in valuing the estate assets. The parties’ dispute on this issue turns on whether the settlement agreement requires the valuation of the estate assets to be adjusted to remove what Richard Hubert, Marilyn Kemper, and Deborah Hubert refer to in their appellate briefs as “intermediate discounts” ■—■ discounts that were applied when they contributed the interests in Hubert Properties to Hubert Consolidated. We address this issue because it is likely to recur on remand.

Paragraph 2 of the settlement agreement pertinently provides that

the Parties shall recompute the allocation of all assets among Deborah, Richard, Judith, and Marilyn (the “Children”) upon the death of Mrs. Hubert, including the net asset value passing to each of them from and through the respective QTIP trusts, GPA trusts, and the Estate. Such computation shall be implemented using fair market values of all such assets upon the date of Mrs. Hubert’s death, as finally determined for purposes of the Federal Estate Tax liability of her estate, adjusted to remove the impact of any valuation discounts or adjustments applied by the appraisers to account for lack of marketability, lack of control, or restricted transferability of any such asset for federal estate tax purposes, and adjusted to reflect any changes required to correct any errors identified by the Accountant resulting from the Accountant’s review pursuant to paragraph 1 above.

Although convoluted, the language in this paragraph is unambiguous. It provides that the parties are to recompute the net value of the assets they have received from or through the QTIPs, GPA trusts and estate. They will use in this computation the fair market value of the assets at the time of Mrs. Hubert’s death. That fair market value will be adjusted to remove any discounts applied by appraisers to account (for estate tax purposes) for the assets’ lack of marketability control or transferability.

The probate court held simply that “the Settlement Agreement says there should be no discounts.” (Emphasis supplied.) But as the above recitation of the settlement agreement’s language demonstrates, the settlement agreement requires the removal of discounts under specific circumstances, namely when those discounts were applied by appraisers to account (for estate tax purposes) for the assets’ lack of marketability, control or transferability. The relevant question in this case is whether those circumstances existed as to the “intermediate discounts.” The “intermediate discounts” arose when, prior to Mrs. Hubert’s death, Richard Hubert, Marilyn Kemper, and Deborah Hubert contributed their QTIP interests in one limited partnership to another limited partnership. So the question is whether those “intermediate discounts” were applied by appraisers to account (for estate tax purposes) for the lack of marketability, control or transferability of the assets that ultimately passed to the Hubert children at the time of Mrs. Hubert’s death. If the answer is yes, then the settlement agreement requires their removal. If the answer is no, then it does not require their removal. This is a question of fact that the probate court appears not to have considered, in light of her conclusion that the settlement agreement allows “no discounts.” Accordingly, this question is appropriate for the probate court, as factfinder, to address on remand when resolving the open issues presented by the accountant.

(c) Imposition of interest.

The settlement agreement provides that certain payments that the estate had made to Richard Hubert, Marilyn Kemper, and Deborah Hubert must be taken into account in the equalization calculation. The probate court held that the equalization calculation also must take into account interest on these payments. Richard Hubert, Marilyn Kemper, and Deborah Hubert argue that the settlement agreement does not authorize such imposition of interest. As this is a question of contract interpretation that may affect the proceedings on remand, we address it here.

The settlement agreement pertinently provides:

The equalization of the Estate shall be computed based on the assets of the Estate at the date of Mrs. Hubert’s death, and shall take into account the payments made to three of the Children in the aggregate amount of $750,000.00, each, and shall take account of any overpayment by Judith Manning, on behalf of [Manning Family Investments], to the Estate of $27,129.00 (plus accrued interest at the judgment rate from day of payment).

(Punctuation omitted.) Any ambiguity in this sentence concerning the imposition of interest can be resolved by looking at the sentence’s structure, which reflects that the interest is to be imposed upon Judith Manning’s overpayment to the estate (the clause of the sentence to which the interest requirement is appended), and not upon the estate’s payments to Richard Hubert, Marilyn Kemper, and Deborah Hubert (which are addressed in a separate clause). See OCGA § 13-2-2 (6) (rules of grammatical construction usually govern in construing contracts).

3. Motions to amend and motions for new trial.

Marilyn Kemper and Deborah Hubert challenge the probate court’s denial of their motions to amend the findings of fact and conclusions of law and for new trial. In light of our decision reversing that portion of the probate court’s order pertaining to the enforcement of the settlement agreement, and remanding the cases for further proceedings, these claims of error are moot.

4. Attorney fees.

The probate court ordered Richard Hubert and Deborah Hubert to pay attorney fees to Judith Manning on the ground that they had been stubbornly litigious for “refusing to accept that to which they had agreed in the Settlement Agreement.” The probate court criticized the position taken by Richard Hubert and Deborah Hubert that the settlement agreement did not require the removal of the “intermediate discounts” in the equalization calculation. Nevertheless, there is a bona fide controversy on the point. Indeed, in Division 2 (b), supra, we reverse the probate court on that point. “[I]f there is a bona fide controversy, there can be no stubborn litigiousness as a matter of law.” Trust Co. Bank of Augusta, N. A. v. Henderson, 185 Ga. App. 367, 372 (4) (364 SE2d 289) (1987) (citation omitted); see also Milam v. Attaway, 195 Ga. App. 496, 498 (2) (393 SE2d 753) (1990). In light of our conclusions in Division 2, supra, regarding the enforcement of the settlement agreement, the award cannot stand, and we reverse it.

5. Counterclaim for breach of fiduciary duty.

The probate court found that Richard Hubert, Marilyn Kemper, and Deborah Hubert failed to prove their counterclaim that Judith Manning breached fiduciary duties imposed upon her as a trustee of one of the QTIPs and as a co-executor of the mother’s estate. Alternatively, the probate court found that the terms of the settlement agreement precluded the counterclaim against Judith Manning. Richard Hubert challenges this ruling on appeal.

“It is well settled that a claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.” Jonas v. Jonas, 280 Ga. App. 155, 160 (3) (b) (633 SE2d 544) (2006) (citation and punctuation omitted). Richard Hubert argues that Judith Manning breached her fiduciary duties by personally profiting from the trust estate through an ownership interest in Manning Family Investments while failing to pay Mrs. Hubert the income to which she was entitled from Judith Manning’s QTIR See Hasty v. Castleberry, 293 Ga. 727, 735 (4) (749 SE2d 676) (2013) (“Generally, it is not permitted for a fiduciary to be in a position where his interests might conflict with that of a beneficiary, and a trustee shall administer the trust solely in the interests of the beneficiaries.”) (citations and punctuation omitted). But as Judith Manning points out, evidence was presented at trial that Manning Family Investments paid Mrs. Hubert more than what was required by the terms of the trust. This evidence authorized the probate court’s ruling. See generally Ludwig v. Ludwig, 281 Ga. 724, 726 (4) (642 SE2d 638) (2007) (where record established that plaintiffs were not damaged by trustees’ alleged breaches of fiduciary duty, trustees were entitled to summary judgment despite evidence “that [they had] not perfectly performed all of their administrative obligations under the trust and that they improperly expended trust assets”).

6. Admission of opinion testimony.

Richard Hubert argues that the probate court erred in allowing Judith Manning’s husband, Aymar Manning, to testify to his opinion about the value of real property that had been contributed to Manning Family Investments. We consider this issue because it is likely to recur on remand.

Pretermitting whether Aymar Manning (a credentialed real estate appraiser) could testify as an expert in this case, the probate court held that he could give lay opinion testimony on the properties’ values based on his ownership interest in the property. Under former OCGA § 24-9-66, which was in effect at the time of the trial, “[d]irect testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify to its value if he has had an opportunity for forming a correct opinion.” (A similar rule is found in Georgia’s new Evidence Code at OCGA § 24-7-701 (b).) Aymar Manning testified that he was familiar with the properties at issue, in which he had an ownership interest, and that he also was familiar with comparable properties, which he had considered in reaching his opinion. His testimony provided a sufficient foundation for the probate court to consider his opinion as to the properties’ market values under former OCGA § 24-9-66. See Beale v. O’Shea, 319 Ga. App. 1, 6-7 (1) (735 SE2d 29) (2012). Accordingly, it is not error to admit that testimony to the extent it is relevant to the issues to be decided by the probate court on remand (the open issues that must be resolved before the accountant can complete his work under the settlement agreement).

7. Motion to recuse.

Richard Hubert challenges the probate court’s denial of his motion to recuse the superior court judge who was designated to sit as the probate court in this case. The record shows that on September 17, 2012, Richard Hubert sent the probate court a letter in which he requested the judge to recuse herself, primarily due to the manner in which she had conducted this and related proceedings. But he did not move to recuse until the morning of trial, September 24, 2012. The probate court denied the motion as untimely under Uniform Superior Court Rule 25.1, which requires that a motion to recuse be filed “not later than ten (10) days prior to the hearing or trial which is the subject of recusal or disqualification, unless good cause be shown for failure to meet such time requirement ]” and further provides that “[i]n no event shall the motion be allowed to delay the trial or proceeding.” Uniform Probate Court Rule 6.10 (A) contains identical language.

From the record, there is no question that Richard Hubert failed to meet this timeliness requirement, and he has cited to no authority to support his argument that the probate court was required to recuse herself despite the untimeliness of the motion. We find no error.

8. Removal of executors.

The probate court removed all four siblings as co-executors, finding that “[t]here is eminent distrust on both sides and the situation is untenable.” There was evidence to support this finding, and the decision to remove the parties as co-executors fell within the probate court’s discretion under OCGA § 53-7-55 to remove an executor for “good cause.” See generally Benefield v. Martin, 276 Ga. App. 130, 132 (622 SE2d 469) (2005) (the “probate court can order an accounting, remove executors or require they post additional security, or issue such other order as in the probate court’s judgment is appropriate under the circumstances of the case” to address issues pertaining to the performance of executors) (citations and punctuation omitted); In re Estate of Zeigler, 273 Ga. App. 269, 270 (1) (614 SE2d 799) (2005) (“The relevant question in reviewing a removal order is whether the trial court had grounds to conclude that there was ‘good cause’ for the removal.”) (citation omitted).

9. Bond order.

Richard Hubert appeals from the probate court’s order requiring him to post a bond under OCGA § 53-7-55. That Code section permits a probate court, in its discretion and upon a finding of good cause, to “[r]equire additional security” from an executor. OCGA § 53-7-55 (2). As we have affirmed on appeal the probate court’s decision to remove Richard Hubert as executor, the matter of the bond is now moot. See Ruskin v. AAF-McQuay, 284 Ga. App. 49, 53 (643 SE2d 333) (2007).

Decided November 22, 2013

Reconsideration denied December 5, 2013

Lefkoff, Duncan, Grimes, McSwain & Hass, Douglas W. Duncan, JohnR. Grimes, Caldwell & Watson, Harry W. MacDougald, Floyd E. Propst III, for appellant (case no. A13A1486).

Chamberlain, Hrdlicka, White, Williams &Aughtry, Richard N. Hubert, pro se (case nos. A13A1484 and A13A2131).

Kilpatrick, Townsend & Stockton, Matthew H. Patton, for appellant (case no. A13A1485).

Roy E. Barnes, for appellee.

Judgments affirmed in part and reversed in part, and cases remanded with direction in Case Nos. A13A1484, A13A1485 and A13A1486. Appeal dismissed as moot in Case No. A13A2131.

Doyle, R J., and Boggs, J., concur.


author: BARNES, Presiding Judge.

text:
    A13A2110.
    IN RE ESTATE OF COUTERMARSH.
    (752 SE2d 448)
   BARNES, Presiding Judge.

Virginia Buinicky filed a petition to remove Bonnie Auger as executrix of the estate of Maria Louise Coutermarsh (the “decedent”) and to appoint Buinicky as successor executrix. After an evidentiary hearing, the probate court granted the petition, finding that Auger had a conflict of interest with the estate that justified her removal as executrix. On appeal, Auger contends that the probate court erred (1) by failing to strike Buinicky’s petition or grant a continuance when Buinicky did not appear at the hearing on the petition; (2) by relying upon documents that were never introduced into evidence at the hearing in finding that Auger had a conflict of interest; and (3) by exercising jurisdiction to address whether Auger’s involvement in a real estate transaction that occurred before the decedent’s death was improper. For the reasons discussed below, we affirm.

The record reflects that the decedent executed her last will and testament in March 2006, naming her niece, Auger, as executrix of her estate and her sister, Buinicky, as successor executrix. The decedent died in January 2011, and Auger was duly appointed as executrix of the estate. In October 2012, Buinicky filed a petition to remove Auger as executrix and to have herself appointed as successor executrix. Buinicky alleged that there was evidence that Auger had mismanaged and misappropriated the decedent’s property as part of a real estate transaction that occurred before the decedent’s death when Auger held a durable power of attorney to act on behalf of the decedent. Buinicky contended that as executrix, Auger had a duty to investigate her own prior involvement in the real estate transaction to determine if legal action should be pursued on behalf of the estate, thereby creating a conflict of interest that necessitated her removal as executrix.

The probate court held an evidentiary hearing on Buinicky’s petition. Auger and her counsel appeared at the hearing. Buinicky was not present, but was represented by counsel. Auger objected to the hearing going forward without Buinicky, but the probate court reserved ruling on the objection and proceeded to hear evidence on the petition, including testimony from Auger. Notably, however, a transcript of the hearing was not filed for inclusion in the record on appeal.

Based on the evidence presented at the hearing, the probate court entered an order granting Buinicky’s removal petition. In its order, the court ruled that Buinicky’s counsel was authorized to appear on his client’s behalf and overruled Auger’s objection to Buinicky not being present at the hearing. The court went on to find that there was evidence that before the decedent’s death when Auger held a durable power of attorney to act on her behalf, Auger used the decedent’s money to purchase a house for $90,000 and had the closing attorney prepare a deed conveying the property to the decedent and Auger as joint tenants with rights of survivorship. The court further found that there was evidence that the decedent “was suffering from some mental deficits at the time of the closing on the house” and that the decedent never met with or spoke to the closing attorney who handled the real estate transaction. Additionally, the court found that there was evidence that Auger later prepared a real estate purchase agreement, both on behalf of herself individually and acting on the decedent’s behalf, that would have transferred the decedent’s interest in the house to Auger before her death for the sum of $35,000. In light of this combined evidence, the court determined that Auger’s “apparent self-dealing in the real estate transactions” might have amounted to a breach of her fiduciary duties owed to the decedent under her power of attorney and necessitated further investigation by the executrix. Because Auger could not be expected to investigate her own actions, the probate court concluded that Auger had a conflict of interest with the estate that justified her removal as executrix and the appointment of Buinicky as successor executrix.

1. Auger first contends that the probate court erred in failing to strike the removal petition or grant a continuance when Buinicky chose to be represented solely by counsel at the hearing rather than attend in person. We disagree.

Absent a properly served subpoena or court order requiring a party to appear in person, a party “may choose not to be present at the trial of the case and to be represented solely by counsel.” Chapman v. Avco Financial Svcs. Leasing Co., 193 Ga. App. 147, 148 (1) (387 SE2d 391) (1989). See Woods v. State of Ga., 243 Ga. App. 195, 196 (2) (532 SE2d 747) (2000) (physical precedent only) (“[A]bsent a properly served subpoena or a court order, a party is not required to appear before the court to explain his pleadings.”). See also Masonry Standards v. UPS Truck Leasing, 257 Ga. 743, 743-744 (363 SE2d 553) (1988) (trial court erred in sanctioning defendant for failing to appear in person at trial); Burkhalter v. Durrence, 93 Ga. App. 374, 374-375 (91 SE2d 774) (1956) (physical precedent only) (trial court did not err in allowing trial to proceed where counsel was present but not his client). This rule accords with the long-established principle that “[t]here is full power on the part of the counsel to represent the client, and it is just the same as if the client were there in person.” (Citation and punctuation omitted.) Adkins v. Bryant, 133 Ga. 465, 466 (66 SE 21) (1909). See McCoy v. McSorley, 119 Ga. App. 603, 604 (2) (168 SE2d 202) (1969) (“The strong presumption arises from an attorney’s appearance in court on behalf of a litigant that he is authorized to appear and to act for that party.”).

While it is undisputed that Auger did not subpoena Buinicky to appear as a witness at the hearing on the petition, Auger argues that the rule nisi issued by the probate court for the hearing required Buinicky to be present. We are unpersuaded. The rule nisi did not specify that Buinicky had to attend in person rather than through counsel, and given that “in the trial of civil cases, parties litigant are frequently permitted by the court to be represented by counsel instead of appearing in person,” we decline to construe the rule nisi as requiring Buinicky to personally attend the hearing in the absence of particularized language to that effect. Adams v. Moore, 199 Ga. 534, 536-537 (34 SE2d 600) (1945) (declining to construe rule nisi as requiring defendant to personally appear in court rather than through counsel). Furthermore, there is nothing in the record indicating that Buinicky or her counsel misled Auger into believing that Buinicky would be present at the hearing or suggesting that Buinicky or her counsel were otherwise on notice that she was expected to personally attend. Compare Bayless v. Bayless, 280 Ga. 153, 156 (1) (625 SE2d 741) (2006) (award of sanctions proper for appellant’s failure to appear at final hearing even though order did not specify that appellant had to appear in person, where there was a “clear indication” from other evidence in the record that appellant’s counsel and the trial court “believed that [appellant] had the obligation to be in court for the final hearing,” and where the sanctions were awarded for the appellant’s course of conduct throughout the proceedings, not simply for his failure to appear); Masonry Standards, 257 Ga. at 744, n. 1 (noting that a continuance may be warranted where a party “reasonably relies on his opponent’s guarantee that a crucial witness will be present at trial”).

Accordingly, given the absence of a subpoena or court order specifying that Buinicky was required to attend in person, Buinicky was authorized to be represented solely by counsel at the hearing on the petition. The probate court thus committed no error in overruling Auger’s objection to proceeding with the hearing and in declining to strike Buinicky’s petition or grant a continuance.

2. Auger next contends that the probate court lacked sufficient evidence to remove her as executrix because the court, in finding that she had a conflict of interest, relied upon documents that were never introduced into evidence at the hearing. Buinicky responds that Auger’s testimony at the hearing and other admissions by her during the course of the proceedings provided sufficient competent evidence upon which the probate court could rely in removing Auger as executrix.

As previously noted, no transcript of the hearing on the petition was filed for inclusion on appeal, and, therefore, we are unable to review Auger’s contention that there was insufficient competent evidence to support her removal as executrix. “An appellant who alleges error in the trial proceedings has the burden of producing a transcript of the allegedly erroneous matter.” (Citation and punctuation omitted.) Sterling, Winchester & Long, LLC v. Loyd, 280 Ga. App. 416, 419 (3) (634 SE2d 188) (2006). Without access to the transcript of the hearing or a statutorily authorized substitute, we must presume that the probate court’s ruling was correct and reject Auger’s claim of error. See Sanders v. Daniel, 302 Ga. App. 350, 351 (1) (691 SE2d 244) (2010).

Decided December 5, 2013.

Beverly R. Adams, for appellant.

Chad R. Henderson, Andrew C. Mullen, for appellee.

3. Lastly, Auger contends that the probate court lacked jurisdiction to determine whether her involvement in the real estate transaction that occurred before the decedent’s death was improper and constituted a breach of her fiduciary duties owed to the decedent under her power of attorney. According to Auger, the probate court lacked jurisdiction to make such a determination because probate courts do not have jurisdiction to decide matters of title to real property. Auger’s contention is without merit.

“In Georgia, it is well-settled that probate courts do not have jurisdiction to adjudicate conflicting claims of title to real or personal property.” In re Estate of Adamson, 215 Ga. App. 613 (1) (451 SE2d 501) (1994). See Ga. Const. 1983, Art. VI, Sec. Ill, Par. I; OCGA § 15-9-30 et seq.; Ray v. Nat. Health Investors, 280 Ga. App. 44, 47 (1) (633 SE2d 388) (2006). But the probate court in this case simply determined that it was appropriate to remove Auger as executrix of the decedent’s estate as a result of a conflict of interest and to appoint Buinicky as successor executrix; nothing in the probate court’s order attempted to determine title to property.

The removal of an executrix of an estate as the result of a conflict of interest is well within the jurisdictional bounds of the probate court. See OCGA § 15-9-30 (a) (2) (“Probate courts have authority, unless otherwise provided by law, to exercise original, exclusive, and general jurisdiction [over] . . . [t]he granting of letters testamentary and of administration and the repeal or revocation of the same.”) (emphasis supplied); Wardlaw v. Huff, 259 Ga. 1, 2 (2) (376 SE2d 366) (1989) (“Where the personal interests of the representative of an estate conflict with the interests of the estate it is within the discretion of the probate judge ... to remove the representative.”); Benefield v. Martin, 276 Ga. App. 130, 132 (622 SE2d 469) (2005) (noting that probate courts have the authority to, among other things, “remove executors”). Hence, contrary to Auger’s contention, the probate court’s order was jurisdictionally proper. See Ray, 280 Ga. App. at 47 (1) (probate court’s order removing appellant as administrator of estate due to conflict of interest and breach of fiduciary duty was not void for lack of jurisdiction, given that “the probate court did not attempt to determine title to property”).

Judgment affirmed.

Miller and Ray, JJ., concur.

       The legal representative of an estate has the exclusive right to bring an action on behalf of the estate. See OCGA § 53-7-45; Memar v. Styblo, 293 Ga. App. 528, 528-529 (667 SE2d 388) (2008). See also 1 Mary F. Radford, Redfearn Wills and Administration in Georgia, § 12:9 (7th ed. 2008 & Supp. 2012). Among other types of claims, the representative may bring an action on behalf of the estate to recover property conveyed from the decedent to a third party as the result of fraud or undue influence. See generally McSherry v. Israel, 221 Ga. 717 (146 SE2d 734) (1966); Prainito v. Smith, 315 Ga. App. 791 (728 SE2d 309) (2012).


author: Branch, Judge.

text:
    A13A1137.
    A13A1138.
    OMNI BUILDERS RISK, INC. v. BENNETT. DILLARD v. BENNETT.
    (750 SE2d 499)
   Branch, Judge.

These companion appeals mark the second appearance of this dispute before us. Plaintiff Lori Bennett brought a discrimination charge before the Equal Employment Opportunity Commission (“EEOC”) against her ex-employer, Omni Builders Risk, Inc. (“Omni”), on the ground that Bennett had been terminated because she had become pregnant. After an effort at mediation, Bennett sued Omni to enforce a settlement agreement allegedly reached there and also sued James Dillard, Omni’s president and majority shareholder, for fraudulent inducement because he allegedly induced her to participate in the mediation. Omni counterclaimed for breach of the mediation agreement, which had provided that the parties’ negotiations could not become the subject of litigation. In Omni Builders Risk v. Bennett (“Omni Builders /”), 313 Ga. App. 358 (721 SE2d 563) (2011) (physical precedent only), this Court reversed a grant of partial summary judgment to Bennett because mediation had not produced a settlement agreement in that Dillard had refused to sign a proposed agreement. Id. at 362 (l). On remand, Omni moved to add Bennett’s counsel and counsel’s law firm as party defendants to Omni’s counterclaim for breach of the mediation agreement. The trial court granted Bennett’s motion for summary judgment as to Omni’s counterclaim on the ground that the mediation agreement was a contract between the parties and the mediation company, and “not a contract creating obligations between [Bennett] and [Omni] or the other signatories thereto.” The trial court also denied Dillard’s motions to add Bennett’s counsel and her law firm as party defendants to Omni’s counterclaim and for attorney fees under OCGA § 9-15-14.

In Case No. A13A1137, Omni argues that the trial court erred when it dismissed Omni’s counterclaim for breach of the mediation agreement and when it denied Omni’s motion to add Bennett’s counsel and her law firm as party defendants to that counterclaim. In Case No. A13A1138, Dillard’s daughter argues that the trial court erred when it refused to conduct an evidentiary hearing on her motion for attorney fees under OCGA § 9-15-14 and when it denied her motion to add Bennett’s counsel and her law firm as parties. We affirm in Case No. A13A1137 and reverse and remand for further proceedings in Case No. A13A1138.

The underlying facts are set out in our previous opinion as follows:

During the pendency of the EEOC claim, per Bennett’s employment contract with Omni, on November 2, 2008, the parties attended a mediation at which [Dillard,] Bennett and their respective attorneys were present. The four attendees signed a mediation agreement which provided guidelines for the mediation process.

Omni Builders I, supra at 359. The mediation agreement was reached by what the preamble to the document called “the undersigned parties,” including Dillard, Dillard’s counsel, Bennett, and Bennett’s counsel. The mediation agreement specified that the mediation service’s “contract for services is with the attorney(s),” from whom the mediation service “expect[ed] payment.” The agreement also provided that “[a]ll that occurs during the mediation process shall be confidential and may not be recorded, and shall not be revealed in any subsequent legal proceedings or otherwise,” and that “[a]ll parties agree not to institute any action based on the mediation.”

During the mediation,

the parties preliminarily agreed to settle the claim for $65,000, after which the mediator prepared a “settlement memorandum” which had signature lines for both parties and their attorneys. The memorandum provided that Bennett would release all claims and withdraw the discrimination charge filed with the EEOC, and accept $65,000 in damages, and Omni would pay the mediation costs. The memorandum included a provision for $2,000 in liquidated damages for breach of the settlement agreement. Bennett and Dillard were in separate caucus rooms during this time, and Dillard’s attorney averred that the mediator prepared the memorandum after several hours of negotiation and took the proposal to Bennett and her attorney first for their signatures. After Bennett and her attorney signed the memorandum, the mediator took the memorandum to Dillard and his attorney. The attorney signed the document, but Dillard refused and left the mediation. The mediator returned to Bennett and her attorney and told them about the incident.

Omni Builders I, supra at 359. Bennett then brought this action against Omni for breach of the settlement agreement and expenses of litigation under OCGA § 13-6-11, and against Dillard personally for fraudulent inducement.

Bennett’s claim for fraudulent inducement alleged that Dillard had “represented to [Bennett] that he had a good faith interest in settling their dispute when he agreed to mediate it”; that Bennett had “relied on [Dillard’s] representation” as she prepared for and attended the mediation; and that “when [Dillard] suddenly and inexplicably refused to abide by the terms of the settlement agreement created by and assented to by the parties,” Bennett suffered damages “equaling wages lost while attending the mediation and attorney [ ] fees incurred as a result of the mediation.” At deposition, however, Bennett testified that she knew that her employment contract required her to mediate any dispute with Omni, that Dillard had made no representation on which she relied in preparing for or attending the mediation, that she was not aware that her counsel had added a claim of fraudulent inducement against Dillard, and that counsel had instructed her not to answer whether she had authorized them to sue Dillard personally.

In his answer, Dillard alleged that Bennett had failed to state a claim for fraud. Dillard also moved for a more definite statement of that claim. On December 8, 2009, Bennett’s counsel sent Dillard’s counsel an e-mail to the effect that Dillard’s motion was “convincing” such that Bennett would dismiss her fraudulent inducement claim. On December 15, 2009, Bennett dismissed the fraudulent inducement claim without prejudice. In his deposition, Dillard testified that although “a lot of people... assumed” that Omni or its insurer “would have to pay some sort of money” in order to settle Bennett’s claim, Dillard himself “knew” that the case would not require settlement.

At an April 2012 hearing on pending motions in the case, the trial court barred Dillard from examining Bennett’s counsel concerning the framing and prosecution of Bennett’s fraudulent inducement claim. In its final orders, the court granted Bennett’s oral motion for summary judgment on Omni’s counterclaim, denied Omni’s motion to add Bennett’s counsel and her law firm as party defendants to that counterclaim, and denied Dillard’s motion for fees, concluding that there was “a great deal of circumstantial evidence from which [Bennett] and her attorneys could have reasonably believed that a fraudulent inducement claim against Dillard was well-founded.” These appeals followed.

Case No. A13A1137

1. Omni first argues that the trial court erred when it dismissed Omni’s counterclaim for breach of the mediation agreement. We disagree.

The construction of a contract “involves a question of law for the court to resolve based on the intent of the parties as reflected in the agreement. We review this issue de novo.” (Citations omitted.) Savannah Yacht Corp. v. Thunderbolt Marine, 297 Ga. App. 104, 109 (1) (676 SE2d 728) (2009).

First, we must determine if the contract language is ambiguous, and, if so, then we apply the appropriate rules of construction set forth in OCGA § 13-2-2. Where the language of a contract is plain and unambiguous, however, no construction is required or permissible and the terms of the contract must be given an interpretation of ordinary significance.

(Citation and punctuation omitted.) Id.

As we have noted, the mediation agreement provided that “[a]ll that occurs during the mediation process shall be confidential..., and shall not be revealed in any subsequent legal proceedings or otherwise,” and that “[a] 11 parties agree not to institute any action based on the mediation.” (Emphasis supplied.) The agreement also defined the “mediation process,” however, as “a non-adversarial settlement negotiation that can only result in a resolution if all [p]arties voluntarily agree.” Bennett brought suit not as to anything that occurred during the parties’ settlement negotiations (the “mediation process”), but rather as to an allegedly complete settlement agreement. Accordingly, because Bennett’s lawsuit was based on the result of the mediation process, and not the process itself, Bennett did not violate the confidentiality provision of the mediation agreement. Finally, if we were to bar a party from attempting to enforce a settlement agreement, we would undermine the rule that “when parties have entered into a definite, certain, and unambiguous agreement to settle, it should be enforced.” (Citation and punctuation omitted.) Savannah Yacht, supra at 109 (1). Because Bennett did not breach the plain terms of the mediation agreement when she filed suit to enforce a settlement allegedly reached as a result of mediation, the trial court did not err when it dismissed Omni’s counterclaim for breach of the mediation agreement.

2. Our affirmance of the trial court’s dismissal of Omni’s counterclaim moots the question of necessary parties to that counterclaim.

Case No. A13A1138

3. In this companion appeal, Dillard’s principal argument is that the trial court erred when it denied his motion for attorney fees under OCGA § 9-15-14 on the basis that Bennett’s claim of fraudulent inducement presented no justiciable issue of law or fact and lacked any substantial justification. We agree.

OCGA § 9-15-14 (a) provides:

... [Rjeasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. . . .

(Emphasis supplied.) “The standard for reviewing an OCGA § 9-15-14 (a) ruling is the any evidence standard.” (Citations omitted.) Brown v. Kinser, 218 Ga. App. 385, 387 (2) (461 SE2d 564) (1995); see also Bircoll v. Rosenthal, 267 Ga. App. 431, 439-440 (2) (c) (600 SE2d 388) (2004). “When considering an appeal from an award of attorney fees made under OCGA § 9-15-14 (a), we must determine whether the claim asserted below either had some factual merit or presented a justiciable issue of law.” (Citations and punctuation omitted.) Brown, supra at 387 (2). “This same principle should be applied when determining whether a trial court erred in denying a motion for litigation costs and attorney fees.” Id.

Where no evidence shows any factual merit in a party’s claim of fraud, a trial court errs by not awarding attorney fees to the opposing party seeking them under OCGA § 9-15-14 (a). Brown, supra at 389 (2). Bennett cites only Dillard’s deposition testimony as support for the proposition, accepted by the trial court, that her fraudulent inducement claim was “colorable.” On the contrary, Dillard’s testimony shows only that he believed that he and/or his insurer would be victorious in the matter, including the mediation, and provides no evidence that he ever made any representation about mediation to Bennett, let alone a fraudulent one. As Dillard pointed out below, moreover, Bennett herself testified that her employment contract required mediation and that she did not rely on any representation by Dillard in preparing for and attending the mediation. Finally, the fact that Bennett voluntarily dismissed her claim does not prevent an award under OCGA § 9-15-14 because litigants and counsel are bound to exercise “a minimum amount of diligence” before filing suit. Bircoll, 267 Ga. App. at 437 (1) (plaintiffs’ voluntary dismissal of claim after discovery does not prevent OCGA § 9-15-14 award of fees concerning that claim) (punctuation and footnote omitted).

Because Bennett has produced no evidence showing that her claim for fraudulent inducement had any merit, and because her own testimony flatly contradicts the position taken in that claim, the trial court erred when it denied Dillard’s motion for attorney fees incurred in defending against that claim. See Brown, supra at 389 (where “there exist [ed] no evidence giving rise to factual merit in appellees’ claim that the statute of limitation was tolled due to fraud,” a trial court abused its discretion in denying appellant’s motion for fees under OCGA § 9-15-14); Cavin v. Brown, 246 Ga. App. 40, 43-44 (3) (538 SE2d 802) (2000) (affirming trial court’s award of attorney fees under OCGA § 9-15-14 (a) when party’s own evidence showed that his asserted defense “could not possibly be believed”). We therefore reverse the trial court’s order as to fees under OCGA § 9-15-14 and remand for further proceedings, including an evidentiary hearing, limited to the amount of reasonable fees incurred by Dillard and properly awarded against Bennett’s counsel and/or her law firm concerning the fraudulent inducement claim. See Johnston v. Correale, 285 Ga. App. 870, 871 (1) (648 SE2d 180) (2007) (“In order to recover attorney fees [under OCGA § 9-15-14], a prevailing party must prove both their actual cost and their reasonableness”) (foonote omitted); Bankston v. Warbington, 319 Ga. App. 821, 823 (2) (738 SE2d 656) (2013) (vacating an award of fees under OCGA § 9-15-14 and remanding for a hearing, “if requested on remand,” as to the “appropriate amount of attorney fees”) (citation omitted); Walker v. Walker, 293 Ga. App. 872, 878-879 (4) (668 SE2d 330) (2008) (vacating an award of fees where the trial court failed to make “necessary findings, including that the fees were reasonable,” when it made the award) (citations omitted).

4. Dillard also argues that the trial court erred when it barred him from offering evidence on fees at the April 2012 hearing, when it authorized Bennett’s counsel to state matters in her place concerning the prosecution of the fraudulent inducement claim, and when it granted Bennett’s motion to quash subpoenas of Bennett and her attorneys and denied Dillard’s motion to strike Bennett’s motion.

Because our holding in Division 3 finds Bennett’s counsel and/or her law firm liable as a matter of law for reasonable fees incurred by Dillard in defending against Bennett’s fraudulent inducement claim, it moots these assertions of error concerning the trial court’s handling of evidence and discovery on the merits of that claim.

Decided November 21, 2013

Reconsiderations denied December 6, 2013.

M. Katherine Durant, Gary Gerrard, for appellants.

Barrett & Far ahany, Amanda A. Farahany, Eleanor M. Attwood, for appellee.

Judgment affirmed in Case No. A13A1137. Judgment reversed and case remanded with direction in Case No. A13A1138.

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

       The EEOC eventually dismissed Bennett’s charge of discrimination, finding that Omni did not have the required number of employees and thus was not an “employer” for purposes of Title VII. See id. at 360, n. 2.

       James Dillard died in August 2011, before the issuance of our decision in Omni Builders I.


text:
    A13A1464.
    WILLIAMS v. CONTEMPORARY SERVICES CORPORATION et al.
    (750 SE2d 460)
   Branch, Judge.

Nora Williams appeals the trial court’s decisions to set aside a default judgment and to open default in favor of Contemporary Services Corporation (“Contemporary”). For the reasons statedbelow, we reverse.

The record shows that Williams filed her complaint for damages on March 3, 2010; that Williams caused Contemporary’s registered agent in Georgia tobe served on March 11,2010; that on June 3,2010, Williams filed proof of service of process; and that as of June 30,2010, Contemporary had failed to answer. On June 30, 2010, the trial court issued a rule nisi for a hearing to be held on August 13, 2010, and on that day the trial court held a hearing and a bench trial on damages, following which it entered a judgment by default in the amount of $85,000 plus interest.

On October 20, 2010, Contemporary filed a motion to set aside the judgment and to open default, as well as a certificate of counsel, supporting affidavits, and a proposed answer. Eight months later, on June 21, 2011, the trial court granted Contemporary’s motion, set aside the default judgment, and opened default. On June 27, 2011, Contemporary filed its answer and paid the costs to open default. Williams thereafter moved for reconsideration, but the court denied the motion.

The case proceeded to a bench trial. Following opening arguments, Williams rested her case without introducing evidence. Contemporary moved for a judgment on the grounds that Williams failed to introduce any evidence and failed to prosecute the case. The trial court directed a verdict in favor of Contemporary and subsequently entered a final judgment in favor of Contemporary on August 22, 2012. Williams filed a notice of appeal from this judgment on August 30, 2012.

Williams contends the trial court erred by setting aside the default judgment. “A trial court’s decision regarding a motion to set aside a judgment will not be reversed absent a showing of manifest abuse of discretion.” (Citation omitted.) Kent v. State Farm Mut. Auto. Ins. Co., 233 Ga. App. 564, 566 (2) (504 SE2d 710) (1998).

Outside of the term of court in which a judgment has been entered, it may be set aside only for one of three reasons:

(1) Lack of jurisdiction over the person or the subject matter;
(2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or
(3) A nonamendable defect which appears upon the face of the record or pleadings.

OCGA § 9-11-60 (d); The Pantry v. Harris, 271 Ga. App. 346, 347 (2) (609 SE2d 692) (2005) (“the first and essential step against any final judgment, including a default judgment, is a motion to set aside the judgment under OCGA § 9-11-60 (d)”). In this case, the trial court set aside the default judgment on the ground that a nonamendable defect appeared on the face of the record in that “[h]aving reviewed the record, it appears that no Certificate of Default was ever filed by Plaintiff” in compliance with Uniform Superior Court Rule (“USCR”) 15. Williams contends this ruling was error. We agree.

In attempting to secure a default judgment, Williams was required by USCR 15 to “certify to the court” in writing two items of information: the date and type of service effected on Contemporary and that the court records show no defensive pleading had been filed. The rule provides that the certificate “must be attached to the proposed default judgment when presented to the judge for signature.” The plain terms of the rule show that the certificate is intended to assure the judge who has received a proposed default judgment that the defendant was in fact served and in fact failed to answer, information already available in the record. In fact, in the Rule Nisi issued by the trial court, the judge “noted” that service had been perfected but that no answer had been filed. Based on the apparent purpose of Rule 15 and the fact that the same information required in the Rule 15 certificate can be found in the record, we conclude that the failure to file a Rule 15 certificate is not a nonamendable defect in the record sufficient to authorize the trial court to set aside a default judgment under OCGA § 9-11-60 (d). Cf. Hardeman v. Roberts, 214 Ga. App. 484, 485 (448 SE2d 254) (1994) (failure to notify trial court pursuant to USCR 4.8 that action was a renewed action was not a nonamendable defect appearing on the face of the record under OCGA § 9-11-60 (d) (3)) (physical precedent only). Compare SRM Realty Svcs. Group v. Capital Flooring Enterprises, 274 Ga. App. 595, 604-605 (3) (617 SE2d 581) (2005) (holding that Rule 15 certificate at issue satisfied the requirements of that rule but not addressing whether a complete failure to file a Rule 15 certificate constitutes a nonamendable defect in the record).

Moreover, the Civil Practice Act provides that when the defendant has not filed a timely answer, “the case shall automatically become in default” and if the case is still in default after the expiration of the statutory period of 15 days for opening default as a matter of right, “the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers ... unless the action is one ex delicto or involves unliquidated damages.” OCGA § 9-11-55 (a) (emphasis supplied). See, e.g., H. N. Real Estate Group v. Dixon, 298 Ga. App. 124, 126 (679 SE2d 130) (2009) (where defendant did not answer and did not move to open the default within the statutory time period, plaintiff “was entitled to verdict and judgment in its favor”) (citation omitted); Lewis v. Waller, 282 Ga. App. 8, 11 (1) (a) (637 SE2d 505) (2006) (trial court erred in failing to grant default judgment where defendant failed to answer or open default within 15 days thereafter). As stated by this Court,

Decided November 13, 2013

Reconsideration denied December 6, 2013

Donald Ellis, for appellant.

[t]he plain language of [OCGA § 9-11-55] “entitles” a plaintiff to default judgment where, as here, a defendant has failed to serve an answer timely, 15 days have elapsed from the time an answer was due without an answer served and costs paid, the defaulting defendant has made no attempt to open the default, and the action does not fall within any of the exceptions set forth in that Code section.

SRM Realty, 274 Ga. App. at 604 (2).

And when court rules conflict with statutory law or case law, the court rules must yield to substantive law. See USCR, Preamble (“It is not the intention, nor shall it be the effect, of these rules to conflict with the Constitution or substantive law, either per se or in individual actions and these rules shall be so construed and in case of conflict shall yield to substantive law.”). See also Russell v. Russell, 257 Ga. 177 (356 SE2d 884) (1987) (case law precedent controlled over provisions of USCR 24.6 (D)); Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64, 65 (1) (374 SE2d 785) (1988) (provisions of USCR 6.2 must yield to provisions of OCGA § 9-11-56 (c)).

Because Contemporary failed to establish the presence of a nonamendable defect on the face of the record, the trial court abused its discretion by granting Contemporary’s motion to set aside the default judgment, and we therefore reverse. See, e.g., H. N. Real Estate, 298 Ga. App. at 126. Because the trial court erred by setting aside the default judgment, we need not reach Williams’s remaining enumerations of error, including that the trial court erred by opening default for Contemporary under OCGA § 9-11-55.

Judgment reversed.

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

King & Yaklin, Stephen A. Yaklin, for appellees.

       The judgment explains that at the hearing, the court heard evidence regarding Williams’s unliquidated damages.

       See Bridgestone/Firestone North American Tire v. Jenkins, 261 Ga. App. 20, 21 (2) (582 SE2d 9) (2003) (“[A] court may exercise its discretion for meritorious reasons to set aside a judgment within the same term of court. Once that term of court has ended, however, a judgment may only be set aside under the procedures in OCGA § 9-11-60 (d).”) (citations omitted). Here, Contemporary filed its motion to set aside the judgment outside of the term in which the default judgment was entered.

       The party seeking entry of a default judgment in any action shall certify to the court the date and type of service effected and that no defensive pleading has been filed by the defendant as shown by court records. This certificate shall be in writing and must be attached to the proposed default judgment when presented to the judge for signature.
      Uniform Superior Court Rule 15.

       In the trial court, Contemporary moved to set aside the judgment on the second and third bases of OCGA § 9-11-60 (d): fraud/accident/mistake; and nonamendable defect in the record. Contemporary never argued that the trial court lacked jurisdiction over Contemporary. On appeal, Contemporary has abandoned its argument based on OCGA § 9-11-60 (d) (2) (fraud/accident/mistake). Thus the only issue on appeal regarding the trial court’s decision to set aside the default judgment is whether there was a nonamendable defect in the record. And “[t]he alleged nonamendable defect must be apparent from the face of the record in the absence of the additional evidence.” (Citation omitted.) Hardeman v. Roberts, 214 Ga. App. 484,485 (448 SE2d 254) (1994).

       See OCGA § 9-11-4 (h) (“The person serving the process shall make proof of such service with the court in the county in which the action is pending within five business days of the service date.”).

       By our holding, we do not mean to suggest that Rule 15 should be ignored; rather, parties and their counsel should abide by its terms. We hold only that where the information required by Rule 15 is found in the record, the failure to provide a Rule 15 certificate in connection with a proposed default judgment does not constitute a nonamendable defect in the record.