text:
    A13A2104, A14A0441.
    SINGH v. STERLING UNITED, INC. (two cases).
    (756 SE2d 728)
   McMillian, Judge.

Inderjit Singh owns a tract of commercial property in Forsyth County. Singh leased a portion of that property to Sterling United, Inc., which operated a gas station and convenience store thereon. After Singh filed a dispossessory action in magistrate court, Sterling United counterclaimed for breach of contract and for specific performance of a purchase option, which Singh had granted to Sterling United under the lease. The magistrate court transferred the case to superior court, where Singh dismissed the dispossessory claim and asserted a breach of contract claim and sought a declaratory judgment against Sterling United.

Following a trial, the jury rendered a verdict for Sterling United on Singh’s breach of contract claim and awarded Sterling United $1 in nominal damages and $266,218.09 in attorney fees and costs on its breach of contract claim. The jury also answered an interrogatory in connection with Sterling United’s specific performance claim. The trial court, which had reserved ruling thereon, then ordered that the Purchase Option be enforced. The trial court later found Singh in contempt of court for failing to comply with its order that Singh provide certain information to Sterling United.

In Case No. A13A2104, Singh contends, among other things, that the trial court erred in concluding that the lease was clear and certain enough to permit an award of specific performance and in entering a judgment for attorney fees which included Sterling United’s costs in defending Singh’s action. For the reasons set forth below, we agree. In Case No. A14A0441, Singh contends that the trial court erred in finding him in contempt of court, denying his cross-motion to find Sterling United in contempt of court, and in clarifying the terms of the lease. We find that the trial court did not err in finding Singh to be in contempt, but that Singh’s other claims are moot.

Case No. A13A2104

After a verdict is rendered, “all the evidence and every presumption and inference arising therefrom, must be construed most favorably towards upholding the verdict.” (Citation and punctuation omitted.) Esprit Log & Timber Frame Homes, Inc. v. Wilcox, 302 Ga. App. 550, 550 (691 SE2d 344) (2010). So viewed, the evidence shows that Singh owns commercial property in Forsyth County. In 2004, Singh leased a portion of the property, consisting of a convenience store and gas station, to Sterling United for a ten-year term (the “Lease”). The Lease required, among other things, that Sterling United pay $8,000 a month in rent, and, contemporaneously with the execution of the Lease, purchase “the goodwill located at the Premises” for $350,000.

The Lease also granted Sterling United an option to purchase certain real property associated with the Lease (the “Purchase Option”). The Purchase Option was prefaced with the condition “provided tenant is not in default,” and the option price was the fair market value of the “Property” as determined by an appraiser chosen by Singh. Upon closing of the Purchase Option, the parties agreed that the $350,000 Sterling United paid for the goodwill would be credited against the option price.

On March 14, 2011, Sterling United provided Singh with written notice that it was invoking its rights under the Purchase Option and that it intended to proceed with the closing. Consistent with the Purchase Option, Sterling United asked Singh to designate an appraiser to determine the fair market value of the property. After Sterling United sent a second letter to the same effect, Singh responded that Sterling United could not exercise the option because it was in default under the Lease.

On June 10, 2011, Singh filed a dispossessory action in magistrate court claiming that Sterling United was in breach of material terms of the Lease. In its answer, Sterling United denied Singh’s claims and counterclaimed for specific performance of the Purchase Option as well as two counts of breach of contract. The magistrate court determined that it lacked jurisdiction over the case and transferred the matter to the superior court. Singh then filed an amended complaint setting forth claims for breach of contract and declaratory judgment, and he voluntarily dismissed his dispossessory claim. The case proceeded to trial.

In response to an interrogatory, the jury found that, as of March 14, 2011, Sterling United was not in default in performing any of the terms and provisions of the Lease. In its verdict, the jury found in favor of Sterling United as to Singh’s breach of contract claim. The jury also found in favor of Sterling United on its counterclaim for breach of contract and awarded $1 as nominal damages and $266,218.09 in attorney fees and costs of litigation. The trial court incorporated the jury’s verdict into its judgment and then, based on the jury’s finding that Sterling United had not been in default, ordered Singh to sell the property to Sterling United pursuant to the Purchase Option.

On appeal, Singh claims that the trial court erred (i) in finding that the Lease was certain enough to be enforced by specific performance, (ii) in entering a judgment including both a decree of specific performance and nominal damages for breach of contract, (iii) in awarding attorney fees, (iv) in ruling that evidence of Sterling United’s breach of the Lease after it exercised the Purchase Option was irrelevant, and (v) in requiring Singh to fully credit Sterling United, at closing, with rent paid from July 2011, until the date of trial.

1. As a threshold issue, Sterling United argues that this Court lacks jurisdiction over Singh’s appeal because the notice of appeal was not filed within seven days of the entry of the trial court’s judgment. OCGA § 44-7-56 is part of Article 3, Chapter 7 of Title 44, which governs dispossessory proceedings, and requires that as to “any judgment,” an “appeal shall be filed within seven days of the date such judgment was entered.” Here, Singh’s notice of appeal was filed 21 days after entry of the judgment. See, e.g., Register v. Elliott, 285 Ga.App. 741, 743(647 SE2d 406) (2007) (noting that “(t)he proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon an appellate court.” (citation and punctuation omitted)).

In determining the proper procedure to follow on appeal, “the underlying subject matter generally controls over the relief sought.” (Citation and punctuation omitted.) Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 522 (521 SE2d 456) (1999). Thus, where “the action began and continued as a dispossessory action,” an appeal from any judgment in the action is required to be filed within seven days. Radio Sandy Springs, Inc. v. Allen Road Joint Venture, 311 Ga. App. 334, 335 (715 SE2d 752) (2011) (although the issue of possession had been resolved, the notice of appeal from the trial court’s order awarding past due rent was required to be filed within seven days because the case retained its character as a dispossessory action); Ray M. Wright, Inc., 239 Ga. App. at 523 (appeal from order confirming arbitration award in dispossessory proceeding was required to be filed within seven days).

Nevertheless, a case which is initially filed as a dispossessory action will not always continue as a dispossessory action. For example, in America Net, Inc. v. United States Cover, Inc., 243 Ga. App. 204 (532 SE2d 756) (2000), we recognized that although an action was filed in the magistrate court as a dispossessory action, it was “possible for the parties to stipulate to the transfer of the contractual dispute to the state court, leaving the summary provisions of the dispossessory statutes behind.” Id. at 207.

In this case, after the magistrate court transferred the case to the superior court, Singh filed an amended complaint for breach of contract and declaratory judgment and dismissed his dispossessory claim. Thereafter, the litigation proceeded without reliance on the provisions of the dispossessory statute, and Sterling United remained in possession of the property. Compare Ray M. Wright, Inc., 239 Ga. App. at 523 (finding that “not only did this action begin as a dispossessory proceeding instituted by Wright, but Wright continued to rely upon the provisions of the dispossessory statutes throughout the litigation”). Moreover, as in America Net, the underlying subject matter was no longer a dispute over immediate possession of the premises, once Singh dismissed the dispossessory claim. America Net, 243 Ga. App. at 207.

Accordingly, we conclude that this case did not retain its character as a dispossessory proceeding, and Singh was not required to file his notice of appeal within seven days of the judgment. See America Net at 205 (finding limitations of OCGA § 44-7-56 did not apply, “particularly in view of our strong public policy to avoid the dismissal of an appeal and to reach the merits of a case whenever it is reasonable to do so”).

2. Turning to the merits of the appeal, Singh contends that the trial court erred in ruling that the Lease’s Purchase Option was clear and certain enough to be enforced by specific performance. We agree.

In a pre-trial motion and later in his motion for directed verdict, Singh contended that Sterling United could not prevail on its counterclaim for specific performance of the Lease’s Purchase Option because that contract did not specify the land to be sold with sufficient definiteness. The trial court denied the motions. “The adequacy of a property description is a legal question for the court.” Makowski v. Waldrop, 262 Ga. App. 130, 132 (1) (584 SE2d 714) (2003).

“A contract upon which specific performance is sought must be certain, definite, and clear, and so precise in its terms that neither party can reasonably misunderstand it.” Smith v. Wilkinson, 208 Ga. 489, 493 (2) (67 SE2d 698) (1951). If the land is not clearly identified, specific performance of a contract for the sale of land should not be granted. Plantation Land Co. v. Bradshaw, 232 Ga. 435, 440 (IV) (207 SE2d 49) (1974). The land to be sold must be identifiedby the contract “with reasonable definiteness by describing the particular tract or furnishing a key by which it may be located with the aid of extrinsic evidence.” (Citation and punctuation omitted.) Scheinfeld v. Murray, 267 Ga. 622, 623 (1) (481 SE2d 194) (1997).

Further, “[bjecause a decree for specific performance operates as a deed, the description in the decree should be as definite as that required for a deed.” (Citation omitted.) T & G Enterprises v. White, 298 Ga. App. 355, 358 (1) (680 SE2d 196) (2009). The description of property contained in a deed is sufficient if “it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that its identification is practicable.” (Citation and punctuation omitted.) Hanners v. Woodruff, 257 Ga. 73, 74 (354 SE2d 826) (1987).

Here, the Lease provides that Sterling United “shall have the option to buy the Real Property within the first 10 years of the term in accordance with the provisions of Exhibit ‘B’ attached hereto and incorporated herein by reference.” Exhibit “B,” entitled “Purchase Option,” provides, in relevant part:

PROVIDED [STERLING UNITED] IS NOT IN DEFAULT AND THE LEASE REMAINS IN FULL FORCE AND EFFECT, [SINGH] GRANTS TO [STERLING UNITED] DURING THE FIRST TEN YEARS OF THE TERM, ONLY (PROVIDED [STERLING UNITED] HAS LEASED THE PROPERTY CONTINUOUSLY FROM THE DATE HEREOF UNTIL SUCH DATE), THE OPTIONTO PURCHASE FROM [SINGH] THE REAL ESTATE (WHICH SHALL INCLUDE THE ADDITIONAL TENANT SPACE THAT WAS NOT INCLUDED AS PART OF THE LEASED PREMISES).

The Purchase Option also provides that “[t]he option price shall be the Fair Market Value of the Property as determined by an MAI appraiser . . .

The terms “Property,” “Real Property” and “REAL ESTATE” are not defined in the Lease or its exhibits. The Purchase Option does refer to the leased premises and, in that respect, the “Premises,” for purposes of the Lease, is defined as “the convenience store portion of the property located at 1310 Canton Highway, Gumming, Georgia 30040, and more particularly described on Exhibit Aattached hereto and incorporated herein by reference.”

Exhibit “A” shows a site sketch of property identified as “1310 Canton Road, Cumming, Georgia 30130.” The sketch shows a number of buildings and structures, with the main building subdivided into sections designated as “Ravan’s Food Market/On Mark Service Station,” “Pump Canopy (Gasoline),” “Former Chiropractic Clinic,” “ARC Inc.,” and “Classic Cuts.” Other structures on the property are identified as “Unit A,” “Unit B,” “Unit C,” “Gasoline USTs,” “Pump Canopy (Diesel & Kerosene),” and “Diesel & Kerosene USTs.” The sketch indicates that the “Premises” includes that portion of the tract which is highlighted by cross marks. The highlighted portions of the sketch include the part of the main building associated with the service station, along with the pump canopies and fuel storage facilities.

We agree with Singh that this case is analogous to Marshall v. Floyd, 292 Ga. App. 407 (664 SE2d 793) (2008). In that case, the tenant leased a portion of a building but asserted the right under the lease to purchase the entire building and grounds. Id. at 410 (1). The lease afforded the tenant the right to purchase “the property,” but the term “property” was undefined in the purchase provision and the contract, and the purchase provision failed to identify the property by description, street address, or other means. Id. The lease contract referred to an attached legal description for the premises but did not refer to any legal description for the unidentified “property” in the purchase provision. Id. We concluded that “[b]ecause the purchase provision failed to contain any description identifying with sufficient certainty the quantity of the property to which it applied, the purchase provision was unenforceable as a matter of law.” Id.

Here, as in Marshall, the quantity of the property to which the Purchase Option applies is not described with sufficient certainty. In considering whether the Purchase Option was sufficiently definite, in a pre-trial ruling the trial court found that the Lease was unambiguous as “there’s no conceivable definition of the property that does not include the entire Exhibit A, which is attached to the contract.” But we cannot agree. For one thing, the Lease contains a separate right of first refusal which pertains to “THE FEE REAL PROPERTY MAKING UP THE PROPERTY, TOGETHER WITH ALL BUILDINGS, EQUIPMENT AND IMPROVEMENTS OWNED BY LANDLORD WHICH ARE HEREAFTER LOCATED ON THE PROPERTY, HEREINAFTER COLLECTIVELY THE ‘FIRST REFUSAL PROPERTY.’ ” The property subject to the right of first refusal and the real estate subject to the Purchase Option are described differently, which suggests that they are not the same. See generally Tyson v. McPhail Properties, 223 Ga. App. 683, 689 (6) (478 SE2d 467) (1996) (option agreement would not have used two different terms in two sequential paragraphs to describe the same thing).

Further, the description of the “REAL ESTATE” subject to the Purchase Option is that it “SHALL INCLUDE THE ADDITIONAL TENANT SPACE THAT WAS NOT INCLUDED AS PART OF THE LEASED PREMISES.” It is unclear from the Lease, including Exhibit “A,” what the parties intended by “additional tenant space.”

Another ambiguity is found in the condition to the Purchase Option: “PROVIDED [STERLING UNITED] HAS LEASED THE PROPERTY CONTINUOUSLY FROM THE DATE HEREOF UNTIL SUCH DATE.” In that context, the reference to “PROPERTY’ must refer to the Premises, as the parties would have known that Sterling United did not lease the entire tract depicted on Exhibit “A.” But when the Purchase Option later refers to the option price as the “Fair Market Value of the Property,” in that context “Property” must refer to the real estate subject to the Purchase Option. And as to the “property” in which the leased premises was to be found, that property is identified as the tract shown on Exhibit “A” to the Lease. But the various references to property within the Purchase Option and the Lease are not such that it can be ascertained whether the parties intended that the Purchase Option apply to the entire tract depicted on Exhibit “A” or some portion thereof.

After a review of the Lease, we can only conclude that, as to the Purchase Option, the Lease does not point to a particular parcel of land, either specifically or through a description providing a key to identification of that parcel. See Plantation Land Co., 232 Ga. at 440 (IV) (noting that “parol evidence may be used to explain terms appearing in the description, but the description itself must clearly identify a particular parcel of land”). Compare Swan Kang, Inc. v. Kang, 243 Ga. App. 684, 688-689 (3) (534 SE2d 145) (2000) (holding that “the property’s postal address was a legally sufficient description because it referred to a definite parcel whose boundaries presumably could be established through extrinsic sources”). Notwithstanding that the real estate subject to the Purchase Option is described to the extent that it includes the additional tenant space, that description only refers to a portion of the property subj ect to the Purchase Option. As to what the “REAL ESTATE” subject to the Purchase Option might be, the Lease does not say. And although Sterling United contends that both parties understood that Sterling United would have the right to purchase the entire property shown on Exhibit “A” to the Lease, parol evidence of the parties’ intent could not supply the missing term as to the quantity of the property subject to the Purchase Option. See Plantation Land Co., 232 Ga. at 440 (IV) (noting the “marked distinction between explaining an ambiguous description by parol evidence, and admitting parol evidence to supply a description”) (citation and punctuation omitted).

In light of the foregoing, we conclude that the Purchase Option in the Lease was legally insufficient to be enforced through specific performance, and the trial court erred in finding otherwise and then entering a judgment requiring that the Purchase Option be specifically enforced.

3. Singh further contends that the trial court erred in entering a judgment for both specific performance and nominal damages for breach of contract. See Investment Properties Co. v. Watson, 278 Ga. App. 81, 87 (4) (a) (628 SE2d 155) (2006) (finding that where plaintiff sought either specific performance or damages, an award of monetary damages in addition to an award of specific performance was an impermissible double recovery). But it appears that Sterling United sought damages for breach of contract apart from its specific performance claim. According to the Consolidated Pretrial Order and as represented by Sterling United at the charge conference, Sterling United was “asking for nominal damages for repairs that [Sterling United] did or damage caused by [Singh’s] failure to make repairs.” Accordingly, there was no impermissible double recovery for breach of the Purchase Option provision and specific performance.

4. Singh also contends that the trial court erred in entering a judgment incorporating the jury’s award of attorney fees because the award included costs associated with defending Singh’s claims. We agree.

The general rule is that “an award of attorney fees and expenses of litigation are not available to the prevailing party unless authorized by statute or contract.” Cary v. Guiragossian, 270 Ga. 192, 195 (4) (508 SE2d 403) (1998). OCGA § 13-6-11 provides that “where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow” expenses of litigation. In its counterclaim, Sterling United asked for a recovery of attorney fees and costs in prosecuting the action because Singh had acted in bad faith and had been stubbornly litigious with respect to the underlying transaction. The trial court later charged the jury, consistent with OCGA § 13-6-11, that it could allow attorney fees on Sterling United’s counterclaim if Singh had acted in bad faith or has been stubbornly litigious or had caused Sterling United unnecessary trouble and expense. “An award of attorney fees under OCGA § 13-6-11 will be affirmed if there is any evidence to support it.” City of Hoschton v. Horizon Communities, 287 Ga. 567, 569 (3) (697 SE2d 824) (2010).

Sterling United argues that the fee award was authorized by OCGA § 13-6-6, which allows for the recovery of nominal damages “sufficient to cover the costs of bringing the action.” An award of nominal damages may establish “prevailing part/’ status under a contractual fee-shifting provision, and “a recovery of only nominal damages is sufficient to support an award of attorney fees under OCGA § 13-6-11.” (Citation and punctuation omitted.) King v. Brock, 282 Ga. 56, 57 (646 SE2d 206) (2007). But Sterling United does not show that an award of nominal damages also carries with it an automatic entitlement to a separate award of attorney fees. Accordingly, we agree with Singh that the attorney fees in this case were sought and awarded under OCGA § 13-6-11.

In general, a defendant’s expenses for defending against a claim are not recoverable under OCGA § 13-6-11. See Canton Plaza, Inc. v. Regions Bank, Inc., 315 Ga. App. 303, 310 (3) (732 SE2d 449) (2012); Professional Consulting Svcs. of Ga., Inc. v. Ibrahim, 206 Ga. App. 663 (426 SE2d 376) (1992). And as to its counterclaim for breach of contract and specific performance, Sterling United “cannot recover attorney’s fees under OCGA § 13-6-11 unless [it] asserts a counterclaim which is an independent claim that arose separately from or after the plaintiff’s claim.” Byers v. McGuire Properties, 285 Ga. 530, 540 (6) (679 SE2d 1) (2009). Singh asserts that Sterling United could not recover any fees under OCGA § 13-6-11 because Sterling United asserted a compulsory counterclaim which was not independent from Singh’s claims. In Sanders v. Brown, 257 Ga. App. 566, 570 (c) (571 SE2d 532) (2002), we explained that “[t]he award of expenses of litigation under OCGA § 13-6-11 can only be recovered by the plaintiff in an action under the language of the statute; therefore, the defendant and plaintiff-in-counterclaim cannot recover such damages where there is a compulsory counterclaim.” In Byers, our Supreme Court later cited to Sanders for the standard to determine when a plaintiff-in-counterclaim may recover attorney fees under OCGA § 13-6-11. Byers, 285 Ga. at 540 (6). Compare Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 431 (1) (274 SE2d 786) (1980) (finding that where party asserts independent claims for recovery by way of counterclaim, “the simple denomination of one party as plaintiff and another as defendant should not dictate a possible award of attorney fees” and that “a ‘race to the courthouse’ theory of recovery” cannot be ascribed to the legislature); Tri-State Consumer Ins. Co. v. Lexis Nexis Risk Solutions, Inc., 858 FSupp.2d 1359, 1372-1375 (II) (F) (5) (N.D. Ga. 2012) (criticizing Sanders).

Under the Civil Practice Act, “[a] pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim—’’OCGA § 9-11-13 (a). Under this Code section, andapplying Byers and Sanders, we find that Sterling United’s counterclaim for breach of contract for failing to make repairs and upon which Sterling United bases its attorney fees claim was clearly in the nature of a compulsory counterclaim and thus fees were not permitted for that claim under OCGA § 13-6-11. In addition, OCGA § 13-6-11 expenses of litigation, including attorney fees, “is limited to the amount of attorney fees attributable solely to the [prevailing] claim [,]” (citation and punctuation omitted.) Forsyth County v. Martin, 279 Ga. 215, 219 (2) (c) (610 SE2d 512) (2005), and for this reason also OCGA § 13-6-11 attorney fees were not recoverable on Sterling United’s claims for specific performance. Accordingly, the fee award is reversed.

5. Singh contends that the trial court erred in excluding certain evidence on the grounds that it was irrelevant to Sterling United’s claim for specific performance. In light of our finding that the Purchase Option was not enforceable by specific performance, this claim of error is moot.

6. Lastly, Singh contends that the trial court erred in ordering that Sterling United receive a credit, at closing, for rent it paid to Singh from July 2011, forward, without accounting for the value of money Singh would had received had the closing taken place in 2011. This portion of the trial court’s judgment was necessarily predicated on its finding for Sterling United on its specific performance claim and cannot stand.

Case No. A14A0441

7. In its judgment awarding specific performance, the trial court ordered Singh to sell the “property” to Sterling United on June 6, 2013. After Singh appealed from the judgment, Sterling United filed a motion for supersedeas bond under OCGA § 5-6-46 (a). The trial court granted the motion and ordered that Singh post a bond in the amount of $410,218.09 by the close of business on or before June 4, 2013. Singh acknowledges that he did not obtain the supersedeas bond.

When the sale ordered by the trial court failed to occur, Singh and Sterling United filed cross-motions for contempt. The trial court denied Singh’s motion, found Singh to be in contempt, and, in addition, provided additional “clarification” of the Lease, including “[t]he ‘property’ for purposes of the option price does not include the business value.” Singh appeals from these rulings.

We first consider whether Singh’s claims are moot. Where “reversal of a trial court’s judgment is of no practical benefit to the parties, any issues raised on appeal are rendered moot.” (Citations and punctuation omitted.) McWhorter v. Greene, 221 Ga. App. 590, 591 (472 SE2d 135) (1996). However, “[i]f an appellant... will benefit by reversal of a case, his appeal is not moot.” (Citation and punctuation omitted.) Id. With respect to the trial court’s denial of Singh’s motion to hold Sterling United in contempt, Singh contends that the trial court erred because Sterling United was not ready, willing, and able to purchase the property on June 6,2013, in contravention of the trial court’s previous order. Singh further argues that the trial court’s “clarification” of the terms of the Lease amounted to an impermissible modification of the prior judgment. In light of our finding in Case No. A13A2104, a reversal of the trial court’s order as to these rulings would have no practical benefit to Singh, and the issues raised are moot.

With respect to the trial court’s finding that Singh was in contempt, in its underlying motion Sterling United argued that Singh had failed to provide it with certain information regarding a loan secured bythe property, notwithstanding that in its June 3,2013 order the trial court had directed that Singh “is required to immediately provide lender information” to Sterling United, as well as “authorization for lender to release loan status information” to Sterling United. Following a hearing, the trial court found that Singh had failed to immediately provide the loan information and so granted Sterling United’s motion that Singh be found in contempt. The trial court ordered that Singh could purge himself of “this finding of willful civil contempt by providing a full authorization to [Sterling United] so that a closing attorney has access to all of the loan account information.” The trial court further ordered that Singh provide the information by “five (5) calender days from August 22, 2013,” and that Singh’s failure to do so “may result in the imposition of sanctions.”

As the trial court’s order exposed Singh to a possible award of sanctions, we cannot say that a reversal of the portion of the trial court’s order finding Singh in contempt would have no practical benefit to Singh. Compare Cagle v. PMC Dev. Co. of Ga., 233 Ga. 583, 584 (212 SE2d 765) (1975) (“once a contempt judgment has been complied with, or has been vacated, or has been rendered moot in any other manner, there is no remaining case or controversy for adjudication in the appellate court”) with Bankers Life & Cas. Co. v. Cravey, 209 Ga. 274, 275 (71 SE2d 659) (1952) (noting that “[t]his court has repeatedly held that one may be punished as for contempt for refusal to obey the order of the court notwithstanding that upon a review the order there disobeyed is, by the reviewing court, reversed”). Nevertheless, we disagree with Singh that he did not violate the trial court’s order. A review of the transcript of the contempt hearing shows that on June 6, 2013, Singh only authorized his bank to release partial information about the loan at issue. Although Singh’s argument focuses primarily on when he was required to provide the lender information and loan status authorization, the trial court necessarily concluded, consistent with the evidence, that Singh was in violation of the court’s previous order because he did not provide, and had not yet provided, the loan account information and authorized release, and it was this ongoing failure that exposed Singh to sanctions. Accordingly, Singh does not show that the trial court erred in finding him in contempt.

Decided March 24, 2014

Miles Patterson Hansford Tallant, Dana B. Miles, Lauren C. Giles, for appellant.

Steven J. Strelzik, Mary Trachian-Bradley, for appellee.

In sum, in Case No. A13A2104 we reverse the trial court’s judgment with respect to the award of specific performance and attorney fees. The judgment is affirmed to the extent it incorporates the jury’s award of nominal damages to Sterling United. The judgment in Case No. A14A0441 is affirmed.

Judgment affirmed in part and reversed in part in Case No. A13A2104. Judgment affirmed in CaseNo. A14A0441.

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

       The Lease also included a separate right of first refusal.

       For example, OCGA § 44-7-54 (a) requires that
      [i]n any case where the issue of the right of possession cannot be finally determined within two weeks from the date of service of the copy of the summons and the copy of the affidavit, the tenant shall be required to pay into the registry of the trial court: (1) All rent and utility payments which are the responsibility of the tenant payable to the landlord ....
      Following dismissal of the dispossessory claim, the trial court denied Sterling United’s motion to pay its rent into the registry of the court.

       In America Net, we also indicated that “the procedure employed by the parties here is the only certain method by which parties may convert litigation on a dispossessory warrant to a conventional contract action under a lease, once possession of the premises is established,” and that it would otherwise retain its character as a dispossessory action. 243 Ga. App. at 207. That limitation does not apply here inasmuch as the right to possession of the premises for purposes of a dispossessory proceeding was never established, either through an order or by voluntary surrender of the premises. Thus, we are not faced with the situation of a concluded dispossessory action that could bar an attempt to litigate contract claims separately in a court of record. Cf. id.

       As we have said, “[t]he distinction between a right of first refusal and an option is significant since only the holder of an option has the power to compel an unwilling owner to sell the property even when the property is not being offered on the market.” Marshall, 292 Ga. App. at 409 (1). On the other hand, “the holder of a right of first refusal does not have that power and instead merely has the right to buy the property when the owner decides to sell.” Id.

       Sterling United abandoned it claims for breach of restrictive covenant. Although it argues it presented that claim to the jury, it represented to the trial court “we’re not going to claim damages for breach of the restricted covenant____[W]e retain the right to enter evidence about it, to show waiver . . . but we’re not looking for damages.”

       Specifically, the trial court ordered the closing “occur 90 days from March 8, 2013.”

       We do not know from the information supplied by the parties if Sterling United has successfully enforced the judgment, but that would not affect Singh’s appeal in Case No. A13A2104. See Crymes v. Chymes, 240 Ga. 721 (242 SE2d 30) (1978) (holding that “[fjailure of the appealing party to file a supersedeas bond simply means that the judgment of the trial court may be enforced and is no ground for dismissing the appeal”). And as “appellant[ ] ha[s] failed to comply with the order to post supersedeas bond, . . . the appellee was free to enforce the judgment at its peril pending a decision on appeal.” Florez v. State, 311 Ga. App. 378, 383(2) (715 SE2d 782) (2011).

       Singh maintains that he had until June 6, 2013 to provide the required loan information and authorization because he was served with the June 3,2013 order by mail. SeeOCGA § 9-11-6 (e).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A12A0066.
    McNAIR v. THE STATE.
    (757 SE2d 141)
   Dillard, Judge.

This case returns to us from the Supreme Court of Georgia in order to determine whether, under the particular facts of the case sub judice, there exists ambiguity in the statutes defining the crimes of identity fraud and financial-transaction-card theft such that the trial court was required to apply the rule of lenity when sentencing appellant Todd Christopher McNair. Because we answer this question in the affirmative, we reverse the judgment and remand the case to the trial court for resentencing in accordance with this opinion.

The relevant facts and procedural history are as follows. The victim was lost and stopped her vehicle in order to ask McNair and his two companions, an adult female and a juvenile female, for directions. And after providing her with the requested information, McNair asked the victim if she was willing to drive him and his friends to the mall. The victim agreed to do so, and the adult female companion initially sat in the front-passenger seat, while McNair entered the back of the vehicle. But almost immediately, McNair asked to change seats and ended up in the front-passenger seat—where the victim’s purse was sitting in the floorboard.

After they arrived at the mall and exited the victim’s car, McNair announced to his companions that he “got me some money today,” as he held the victim’s wallet containing cash and credit cards. The trio then entered the mall, where they collectively selected items to purchase. The adult female companion testified that it was McNair who initially took the wallet out of the victim’s purse, but the females who (alternatively) handed the victim’s credit cards to the various cashiers to make their group purchases.

Thereafter, McNair was arrested and charged by accusation on one count of identity fraud for wilfully possessing the victim’s financial-transaction-card number without her authorization and with the intent to fraudulently use that information in violation of OCGA § 16-9-121 (a) (l), which provides that

[a] person commits the offense of identity fraud when he or she willfully and fraudulently... [w]ithout authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person . . . ,

Following his conviction by a jury, McNair argued during the sentencing hearing that the rule of lenity required that he be sentenced for committing a financial-transaction-card theft pursuant to OCGA § 16-9-31 (a) (1), the penalty for which is less severe than that for identity fraud. OCGA § 16-9-31 (a) (1) provides that

[a] person commits the offense of financial transaction card theft when . . . [h]e takes, obtains, or withholds a financial transaction card from the person, possession, custody, or control of another without the cardholder’s consent; or who, with knowledge that it has been so taken, obtained, or withheld, receives the financial transaction card with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder . . . .

The trial court rejected McNair’s argument and sentenced him for identity fraud, after which he appealed to this Court. And in an unpublished opinion, we affirmed the trial court’s ruling based upon a series of cases in which this Court previously held that the rule of lenity is confined to those situations when the statutory violations at issue involve a misdemeanor and a felony, but otherwise has no application when both crimes are classified as felonies. The Supreme Court of Georgia granted certiorari in the case, disapproved of our prior precedents, and held that the rule of lenity is not so limited. It thereafter remanded the case to this Court for us to determine whether McNair was, in fact, entitled to be sentenced under the lesser statute of financial-transaction-card theft. We now conclude that the rule of lenity applies in the case sub judice.

As our Supreme Court has explained, the rule of lenity finds its roots in the vagueness doctrine, “which requires fair warning as to what conduct is proscribed.” More specifically, the rule of lenity ensures that if and when an ambiguity exists in one or more statutes, such that the law exacts varying degrees of punishment for the same offense, “the ambiguity [will be] resolved in favor of [a] defendant, who will then receive the lesser punishment.” Of course, if it is determined after applying the traditional canons of construction that the relevant statutory text is unambiguous, then the rule of lenity will not apply. The fundamental inquiry when making that assessment is whether the identical conduct would support a conviction under either of two crimes with differing penalties.

Here, 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.’ ” Put another way, where the language of a statute is plain and susceptible of only one natural and reasonable construction, “courts must construe the statute accordingly.” Finally, we are also mindful of our duty to “construe statutes to give sensible and intelligent effect to all of their provisions and to refrain from any interpretation which renders any part of the statutes meaningless.”

The Georgia Public Defender Standards Council (“GPDSC”) strenuously argues, in its role as amicus curiae, that when enacting the two statutes, the General Assembly intended for the financial-transaction-theft statute, and indeed the entirety of Title 16, Chapter 9, Article 3, to govern only those crimes involving the actual physical possession or use of a financial-transaction card. On the other hand, GPDSC maintains that the identity-fraud statute, and the entirety of Title 16, Chapter 9, Article 8, was designed to address those crimes that do not require an actual financial-transaction card, but rather involve the acquisition and possession of identifying information—-i.e., the financial-transaction-card numbers—which can be used to fraudulently obtain access to, mostly electronically, another person’s credit or assets. In GPDSC’s view, the financial-transaction-card-theft statute addresses a narrower range of conduct, and “for purposes of statutory interpretation, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent [as reflected by the plain meaning of the relevant text].” Thus, according to GPDSC, the critical distinction between the two crimes at issue is the fraudulent possession and/or use of the tangible financial-transaction card itself (financial-transaction-card theft), as opposed to the numbers on the card independently of the card (identity fraud), and it claims McNair committed only the former. And while we find GPDSC’s argument persuasive in some respects, we disagree that the demarcation line between these two offenses is as clear as it posits.

Both the financial-transaction-card-theft statute and the identity-fraud statute criminalize not only the unauthorized use of a financial-transaction card and/or its numbers, but also the fraudulent possession with intent to use same. Thus, while the distinction made by GPDSC may be easily drawn after a suspect has unlawfully obtained and physically presented a financial-transaction card to a merchant in order to effectuate a fraudulent purchase, that distinction is less obvious when a suspect is found to be in the unlawful possession of numerous financial-transaction cards from one or more victims with the fraudulent intent to use, but prior to the actual use, of those cards. In such a situation, we are not prepared to categorically say that the General Assembly intended to eliminate all prosecutorial discretion and mandate that the suspect be charged exclusively with financial-transaction-card theft, as opposed to identity fraud. Consequently, our inquiry is not at an end.

The question remains whether, under the particular facts of this case, an ambiguity exists between the financial-transaction-card-theft statute and the identity-fraud statute such that the rule of lenity applies. Significantly, McNair was not accused of taking or using the victim’s credit card, but of wilfully and fraudulently possessing the credit-card number without the victim’s authorization and with the fraudulent intent to use that information. These same operative facts satisfy the essential elements of both OCGA § 16-9-31 (a) (1) and OCGA § 16-9-121 (a) (1), neither of which requires proof of any fact that the other does not. Thus, although there are other ways in which either crime could have been committed, McNair’s conduct, as charged, subjected him to prosecution and sentencing under both OCGA § 16-9-31 (a) (1) and OCGA § 16-9-121 (a) (1). And because these statutes provide different grades of punishment for the same criminal acts, McNair is entitled to the rule of lenity. We therefore reverse McNair’s identity-fraud conviction and remand this case for resentencing under the financial-transaction-card-theft statute, which mandates a lesser punishment.

Decided March 25, 2014.

Michael R. McCarthy, Dustin S. Strobel, G. Brandon Sparks, Amanda C. McCoy, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan Franklin, George J. Souther, Assistant District Attorneys, for appellee.

Judgment reversed and case remanded for resentencing.

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

        See OCGA § 16-9-121 (a).

        See OCGA § 16-9-31 (a).

       The accusation alleged that McNair “did willfully and fraudulently, without authorization, possess with intent to fraudulently use, identifying information, to wit: a financial transaction card number, concerning an individual, [the victim], contrary to the laws of [the] State . . . .”

       OCGA§ 16-9-121 (a) (1). OCGA § 16-9-120 (5) (P) expressly includes financial-transaction-card numbers within the definition of “identifying information” for the purposes of the crime of identity fraud.

       The penalty for identity fraud is up to ten years in prison and/or up to $100,000 in fines, whereas the penalty for financial-transaction-card theft is up to three years in prison and/or up to $5,000 in fines. Compare OCGA § 16-9-126 (a) with OCGA § 16-9-38 (b).

       OCGA § 16-9-31 (a) (1) (emphasis supplied).

        McNair v. State, 315 Ga. App. XXVI (2012).

        See generally Rollf v. State, 314 Ga. App. 596, 598 (2) (a) (724 SE2d 881) (2012) (“The rule of lenity does not apply to convictions for two felony offenses.” (punctuation omitted)); Rouen v. State, 312 Ga. App. 8, 11 (3) (717 SE2d 519) (2011); Fyfe v. State, 305 Ga. App. 322, 328 (3) (699 SE2d 546) (2010); Poole v. State, 302 Ga. App. 464, 467 (2) (691 SE2d 317) (2010); Falagian v. State, 300 Ga. App. 187, 191 (2) (684 SE2d 340) (2009); Shabazz v. State, 273 Ga. App. 389, 391 (1) (615 SE2d 214) (2005).

        See generally McNair v. State, 293 Ga. 282, 284-85 (745 SE2d 646) (2013); id. at 284 (“This Court has never held, however, that the rule of lenity only applies when the punishments are as between a misdemeanor and a felony.”).

        Id. at 283; see United States v. Lanier, 520 U. S. 259, 266 (II) (117 SCt 1219, 137 LE2d 432) (1997) (“[A]s a sort of ‘junior version of the vagueness doctrine,’ the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.”) (citation omitted); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 299 (1st ed. 2012) (noting that the rule of lenity canon is justified by the well-established precept that “when the government means to punish, its commands must be reasonably clear”).

        McNair, 293 Ga. at 283-84 (punctuation omitted); see Dixon v. State, 278 Ga. 4, 7 (1) (d) (596 SE2d 147) (2004) (“The rule derives from the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.” (punctuation omitted)); Brown v. State, 276 Ga. 606, 608 (2) (581 SE2d 35) (2003) (“Where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of the two penalties administered.” (punctuation omitted)).

        See McNair, 293 Ga. at 284; Banta v. State, 281 Ga. 615, 617 (2) (642 SE2d 51) (2007); see also United States v. Shabani, 513 U. S. 10, 17 (II) (115 SCt 382, 130 LE2d 225) (1994) (“The rule of lenity, however, applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.” (citation and punctuation omitted)); U S. v. Johnson, 655 F3d 594, 606 (7th Cir. 2011) (Manion, J.) (holding that the rule of lenity does not require a court to read a criminal statute “more narrowly than its plain terms suggest”). But see Scalia & Garner, supra at 298 (“The main difficulty with the rule of lenity is the uncertainty of its application. Its operation would be relatively clear if the rule were automatically applied at the outset of the textual inquiry, before any other rules of interpretation were invoked to resolve ambiguity. Treating it as a clear-statement rule would comport with the original basis for the canon and would provide considerable certainty. But that is not the approach the cases have taken.”).

        See Banta, 281 Ga. at 618 (2) (“Simply put, the two statutes do not define the same offense[;] ... [t]hus, the two defined crimes do not address the same criminal conduct, there is no ambiguity created by different punishments being set forth for the same crime, and the rule of lenity does not apply.” (citations omitted)); Dixon, 278 Ga. at 6 (1) (a) (applying rule of lenity when “the State retained the discretion to prosecute the exact same conduct as either” a misdemeanor or a felony); see Dawkins v. State, 278 Ga. App. 343, 345 (629 SE2d 45) (2006) (“[T]he essential requirement... is that both crimes could be proved with the same evidence.” (punctuation omitted)).

        Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013); see OCGA § 1-3-1.

        Martinez, 325 Ga. App. at 273 (2) (citation omitted); see OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words . . . .”).

        Martinez, 325 Ga. App. at 273 (2) (citation omitted).

        Id. (citation and punctuation omitted).

        R. D. Brown Contractors, Inc. v. Bd. of Educ. of Columbia Cnty., 280 Ga. 210, 212 (626 SE2d 471) (2006).

        See OCGA § 16-9-30 to 16-9-39 (“Illegal Use of Financial Transaction Cards”).

        See OCGA §§ 16-9-120 to 16-9-132 (“Identity Fraud”).

        Dixon, 278 Ga. at 6 (1) (b) (punctuation omitted); see also Hammond v. State, 10 Ga. App. 143, 146 (72 SE 937) (1911) (noting that “in the construction of general and special acts,” the maxim generalia specialibus non derogant applies).

        See OCGA § 16-9-31 (a) (1); OCGA § 16-9-121 (a) (1).

       As acknowledged by GPDSC, our conclusion is buttressed by the fact that OCGA § 16-9-33, entitled “financial transaction card fraud” and contained within Article 3, criminalizes certain uses offinancial-transaction-card numbers separately from the card itself. SeeOCGA § 16-9-33 (a) (2) (C) (criminalizing the knowing use of a financial-transaction-card number that was not issued or was forged, altered, expired, revoked, or obtained by fraudulent application in order to obtain money, goods, services or anything else of value); OCGA § 16-9-33 (a) (2) (D) (criminalizing the giving (orally or in writing) of a financial-transaction-card number without the cardholder’s authorization to the provider of and for the purpose of obtaining money, goods, services, or anything else of value); see also OCGA § 16-9-33 (f) (criminalizing certain conduct involving a financial-transaction-card number).

       On appeal, the State argues that there was evidence presented at trial supporting a finding that McNair actually took the victim’s credit card, and that this fact ends any further inquiry because it satisfies the “taking” element of the financial-transaction-card-theft statute that is not required by the identity-fraud statute. But although that is certainly one manner in which the former crime can be committed, a violation of that statute can also be established with evidence that one receives a financial-transaction card with the knowledge it has been stolen and with the intent to use it. See OCGA § 16-9-31 (a) (1). And because McNair was not charged with taking the victim’s credit card, the jury made no such finding.

       We recognize that the crime of identity fraud requires proof that a suspect unlawfully “possesses” identifying information, i.e., financial-transaction-card numbers, whereas the crime of financial-transaction-card theft requires proof that a suspect unlawfully “receives” a financial-transaction card, but under the specific facts of this case as charged, we conclude that these distinctions are of no meaningful textual significance. Compare The Compact Oxford English Dictionary 1395 (2d ed. 1991) (defining “possess” as, inter alia, “[to] have possession of, as distinct from ownership”) with id. at 1524 (defining “receive” as, inter alia, “[t]o take into one’s hands, or into one’s possession . . .”).

        See Dixon, 278 Ga. at 7 (1) (d) (applying the rule of lenity because “the same conduct would result in the imposition of dramatically different penalties under the two statutes”); Washington v. State, 283 Ga. App. 570, 573 (4) (642 SE2d 199) (2007) (applying the rule of lenity because “[v]iewing the record as a whole, it is apparent that the same evidence could be used to prove” two separate offenses with different grades of punishment); Dawkins, 278 Ga. App. at 345-46 (applying the rule of lenity because the same evidence supported a conviction under two statutes, one a felony and one a misdemeanor). Compare Banta, 281 Ga. at 618 (2) (concluding that the rule of lenity did not apply because “the two statutes do not define the same offense”); White v. State, 319 Ga. App. 530, 532 (2) (737 SE2d 324) (2013) (rejecting rule of lenity argument because essential elements of two offenses differed); Metts v. State, 297 Ga. App. 330, 337 (6) (677 SE2d 377) (2009) (refusing to apply rule of lenity when “the two offenses at issue require different conduct”); Selfe v. State, 290 Ga. App. 857, 862 (3) (660 SE2d 727) (2008) (holding no rule of lenity because the felony offense required proof of an element that the misdemeanor offense did not).

        See Dixon, 278 Ga. at 7 (1) (d); Washington, 283 Ga. App. at 573 (4); Dawkins, 278 Ga. App. at 345-46.


author: ANDREWS, Presiding Judge.

text:
    A13A1778.
    GOINS et al. v. THE FAMILY Y et al.
    (757 SE2d 146)
   ANDREWS, Presiding Judge.

James and Jennifer Goins sued The Family YMCA (the Y) after their 16-year-old son Brant collapsed while walking on a treadmill at its facility. Brant died before EMTs arrived, and it was later determined that he suffered from a congenital heart disease. The trial court granted the Y’s motion for summary judgment on the Goins’ claims of negligence and fraud. For reasons that follow, we affirm.

The following facts are undisputed. The Goins brought their son Brant to the Y to get him into shape for baseball season and to lose some weight. Brant began training with Greg Mason, a certified personal trainer, and there was no indication at the time that Brant was not in good physical condition. The Goins do not contend that there was anything inappropriate in the level or intensity of the workouts suggested by Mason.

On the day in question, Brant had been walking on the treadmill for a short time when he collapsed. An employee who saw him fall immediately called 911. This employee was trained in CPR, but stated that she did not go over to Brant because there were two “paramedics” with him. One of the two men was a deputy sheriff who had been a first responder for eight years, was trained in advanced CPR, first aid, and also had life saving training in the Marine Corps. The deputy said that he checked for a pulse and saw that Brant was still breathing. The other man who went over to Brant after he collapsed was an EMT who testified that the deputy was with Goins when he went over to see if he could help. He stated that Brant’s airway was open and he saw him take a breath, but then Brant appeared to stop breathing. The deputy also testified that he saw Brant take a large breath and then stop breathing. At that point, the deputy and the EMT began CPR. Simultaneously, the ambulance and EMTs arrived on the scene.

The Goins filed this suit, claiming that the Y was negligent in the death of their son because he was under the “personal care” of a Y employee who had no CPR or first aid training, in spite of representations made by the fitness center. The Goins also claimed that the Y employees stood around and did nothing after Brant collapsed. The complaint alleged that the AED or defibrillator was locked away and not available in case of emergency. There was also a fraud count in which the Goins contended that the Y made misrepresentations to them that led them to believe that the Y was a “safe and positive” environment for their son.

The trial court granted the Y’s motion for summary judgment in a two-sentence order. This appeal followed.

To prevail at summary judgment under OCGA § 9-11-56,the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Boller v. Robert W. Woodruff Arts Center, 311 Ga. App. 693, 693-694 (716 SE2d 713) (2011).

1. The Goins first argue that the trial court erred in finding there was no duty to render first aid to a minor child in the Y’s care when false representations had been made to the child’s parents.

The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff. This issue is a question of law.

Boiler, supra at 695-696. In Boiler, plaintiff

claimed that the Arts Center breached its duty of care to her husband, an invitee, by its failure to have on site either an ambulance or an officer operating an automatic external defibrillator device (“AED”) and by its failure to maintain a safety and security plan to govern the actions of employees and security personnel during a medical emergency.

Id. at 695. This Court held that

the long-established general rule is that “[a] person is under no duty to rescue another from a situation of peril which the former has not caused,” even when the peril is foreseeable. We conclude that this case is controlled by our decision in Rasnick v. Krishna Hospitality, where we held that the defendant innkeeper had no legal duty to comply with a wife’s requests that it attempt a rescue of its guest, her husband, from his medical peril. In that case, the defendant did not create the decedent’s underlying medical condition. Similarly, in the case at bar, Boiler does not allege that the Arts Center or the concert it sponsored caused her husband’s sudden attack of cardiac arrest.

(Footnotes omitted.) Id. at 696.

Nevertheless, the Goins argue that a “special relationship” existed in this case, because the Y assumed a special duty to supervise minor children. The Goins cite to several cases not on point. See, e.g., Bull Street Church of Christ v. Jensen, 233 Ga. App. 96 (504 SE2d 1) (1998) (four-year-old victim molested at church); Wallace v. Boys Club of Albany, 211 Ga. App. 534 (439 SE2d 746) (1993) (five-year-old boy abducted from summer camp after employees assured parents that they would watch child and keep track of his whereabouts). Brant Goins was 16 years of age and the only duty undertaken by the Y was to provide him with a personal trainer to help him lose weight. It is undisputed that this is what occurred. There is no merit to this enumeration.

Decided March 25, 2014.

Richard H. Goolsby, Sr., for appellants.

Dodson & Associates, Charles R. Beans, for appellees.

2. Likewise, for the same reasons discussed in Division 1, the trial court did not err in granting summary judgment on appellants’ negligence claim. Further, and equally important, the Goins cannot show a causal connection between Mason’s or any other employee’s lack of CPR training and Brant Goins’ death. The Goins’ statement of facts does not refer to the deposition testimony of the deputy sheriff or the EMT. It is undisputed that there was an emergency medical technician and a deputy sheriff trained as a first responder present at the time of Brant’s collapse. There would have been no reason for a Y employee to interfere with the care being given by the two qualified first responders.

3. Next, the Goins claim that the trial court erred in finding no issues of fact on their fraud claim. The Goins alleged in their complaint that they were told that “THE FAMILY Y was a safe and positive environment.” They contend that it was represented to them that there would be adequate well-trained employees on hand at all times and that these employees would have access to life-saving equipment and would know how to use it.

To survive a motion for summary judgment on a fraud count, some evidence must support each of the five elements, which are: a false representation by a defendant; scienter; intention to induce the plaintiff to act or refrain from acting; justifiable reliance by plaintiff; and damage to the plaintiff.

Wertz v. Allen, 313 Ga. App. 202, 207-208 (721 SE2d 122) (2011).

Even assuming that the Goins could establish the other elements of their fraud claim, they can show no damage as the result of this claimed fraud. The EMT and the deputy were clearly the most highly trained people present in administering CPR. Neither called for a defibrillator, and both testified that a defibrillator would not be used on someone with a pulse who was still breathing. The Y was entitled to summary judgment on this claim, and there was no error.

Judgment affirmed.

Dillard and McMillian, JJ., concur.

       The Goins claim that when they signed their son up for a personal trainer at the YMCA, Greg Mason was misrepresented to them as a “certified” personal fitness trainer. This argument is puzzling. The undisputed evidence was that Mason was a certified personal trainer.


author: BARNES, Presiding Judge.

text:
    A13A2219.
    HARLEM v. WILLIAMS et al.
    (757 SE2d 149)
   BARNES, Presiding Judge.

Ciara Harlem appeals from the trial court’s order dismissing her complaint on the grounds of failure to exercise due diligence in perfecting service upon appellees, Charles B. Williams, Easter Williams, and “John Doe,” after the running of the statute of limitation. We review a trial court’s dismissal of a complaint on these grounds for an abuse of discretion. Jones v. Brown, 299 Ga.App. 418, 418-419 (683 SE2d 76) (2009). Because we determine that the trial court did not abuse its discretion in dismissing the complaint, we affirm.

As an initial matter, we note Harlem’s appellate brief is not numbered nor are the facts set forth in the brief supported with citations to the record. Pursuant to Court of Appeals Rule 25 (a) (1), “[r]ecord and transcript citations shall be to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript as sent from the trial court.” With this, we further note that it is not our job to cull the record on behalf of a party, and given the shortcomings of Harlem’s brief, we would be within our authority to dismiss the appeal. See Court of Appeals Rule 7 (“Breach of any rule of the Court of Appeals... may subject the appeal to dismissal.”). However, given the sparseness of the appellate record, we are able to address Harlem’s enumerations of error.

On or about November 10,2010, Harlem was injuredby a vehicle owned by Charles Williams, insured by Easter Williams, and driven by an unidentified man, who apparently fled the scene ofthe accident. On November 13, 2012, Harlem timely filed a complaint for damages. On November 16, 2012, service was attempted on Charles and Easter Williams at a Stone Mountain address by the DeKalb County Marshal’s office, but the officer noted that he could “hear someone walk to [the] door” but he or she was “refusing to open [the] door and accept service.” On January 14, 2013, the Williamses filed an answer in which they alleged, among other things, that service had not been perfected. On January 28, 2013, Easter Williams, acting pro se, filed another answer in which there was no alleged service defense.

On March 26, 2013, the Williamses filed a motion to dismiss, alleging lack of service and the expiration of the statute of limitation. Thereafter, on April 8, 2013, Harlem filed a response to the motion to dismiss, in which she alleged that the “DeKalb County Police Department” had unsuccessfully made several attempts to serve the Williamses but they were “evading service,” and that she had hired a private process server who had successfully served the Williamses on January 19, 2013. The affidavit of the process server was attached to the response, as was a January 20, 2013 e-mail in which he stated that he had served the Williamses by leaving a copy of the summons and complaint with their adult son at their home on January 19, 2013.

On May 23, 2013, the trial court entered an order granting the Williamses’ motion to dismiss. The trial court found that the action was timely filed, the defense of insufficiency of service was not waived, and that when service is made outside the limitation period, as here, the plaintiff has the burden of showing that due diligence was exercised. Citing Swain v. Thompson, 281 Ga. 30, 32 (2) (635 SE2d 779) (2006), the trial court also found that once Harlem became aware of a problem with service in November 2012, her “duty [was] elevated to an even higher duty of the greatest possible diligence to ensure proper and timely service.” The trial court further noted that it was still unclear whether service had been made on the Williamses because there was no indication that the son lived with his parents at the address they were served pursuant to OCGA § 9-11-4 (e) (7).

Harlem argues that the trial court abused its discretion in finding that she failed to exercise the required level of due diligence in perfecting service without a hearing. We disagree.

There is no merit to Harlem’s contention that the trial court should have held a hearing before dismissing her complaint. Harlem did not request a hearing, and Superior Court Rule 6.3 clearly provides that unless the trial court orders otherwise, with the exception of motions for new trial and judgment notwithstanding the verdict, all civil motions “shall be decided by the court without oral hearing.” Id.

Regarding its finding that she did not exercise the requisite due diligence in serving the Williamses,

[w]hen a complaint is filed within the statute of limitation, but service is not made within five days or within the period of limitation, the plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to ensure that proper service is made as quickly as possible. Once the plaintiff becomes aware of a problem with service, however, [her] duty is elevated to an even higher duty of the greatest possible diligence to ensure proper and timely service. The plaintiff must provide specific dates or details to show diligence. Whether the plaintiff met that burden was a question of fact for the trial court’s determination that will not be overturned absent an abuse of discretion.

Decided March 25, 2014.

Patrick A. Powell, for appellant.

Worsham, Corsi, Scott & Knighten, Bryan M. Hausner, for appellees.

(Footnotes omitted; emphasis supplied.) Scanlan v. Tate Supply Co., 303 Ga. App. 9, 11 (b) (692 SE2d 684) (2010).

While Harlem contends that she did not learn of the marshal’s failed attempt at service until “the latter part of December 2012,” the record shows that the marshal filed the return of service with the trial court clerk on November 20, 2012. Considering that the statute of limitation had run, Harlem had a duty thereafter to ensure that service was made as quickly as possible. Scanlan v. Tate Supply Co., 303 Ga. App. at 11 (b).

Harlem relies solely on the affidavit of her private process server showing notorious service to the Williamses’ son over two months after the failed service attempt in November 2012. There are no other indications of any efforts she engaged in to perfect service during those two months despite suspecting that the Williamses might be attempting to evade service. There are no specific details or dates to show continued diligence during the ensuing period until after the motion to dismiss was filed, when Harlem produced the affidavit showing that she had hired a private process server. “Aplaintiff must provide specific dates or details to show diligence and cannot rely on conclusory statements.” (Citation omitted.) Wells v. Drain Doctor, 274 Ga. App. 127, 128 (616 SE2d 880) (2005).

In this case, the trial court did not abuse its discretion in determining that Harlem failed to exercise the required level of due diligence in attempting to perfect service of her complaint.

Judgment affirmed.

Miller and Ray, JJ., concur.

       The trial court found that the complaint had been timely filed because November 12, 2012 was a holiday.

       “Service shall be made by delivering a copy of the summons attached to a copy of the complaint ... to the defendant personally, or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.” OCGA § 9-11-4 (e) (7).


author: Miller, Judge.

text:
    A13A1847.
    LEWIS v. THE STATE.
    (757 SE2d 170)
   Miller, Judge.

In the third appearance of his case before this Court, Jeremy Patrick Lewis appeals from the denial of his motion for an out-of-time appeal from the 1994 judgments denying his motions to withdraw his guilty plea. Lewis contends that the trial court erred in finding that the issues in this case were addressed by his prior appeal and in dismissing his motion. For the following reasons, we disagree and therefore affirm.

An appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record, and the trial court’s denial of a motion for out-of-time appeal is reviewed for abuse of discretion. The denial of a request for out-of-time appeal is proper if an examination of the record reveals no merit to the claimed errors.

(Citations and punctuation omitted.) Dennis v. State, 292 Ga. 303 (736 SE2d 428) (2013).

So viewed, the underlying facts of this case show that Lewis was charged with multiple counts of violating the Georgia Controlled Substances Act, OCGA § 16-13-33, a firearms offense, being a recidivist and being a habitual violator. Lewis entered a guilty plea to all counts, and subsequently filed a timely motion to withdraw his plea. See Lewis, supra, 229 Ga. App. at 828. Thereafter, Lewis appealed the denial of his motion, and in the first appearance of his case, this Court remanded to the trial court for completion of the record and appointment of new counsel. Id. at 827-828.

In March 1996, the trial court entered two orders denying Lewis’s motion to withdraw his plea. Lewis appealed those orders. Lewis, supra, 229 Ga. App. at 829. Thereafter, in the second appearance of Lewis’s case, this Court vacated the trial court’s judgment, finding that the trial court lacked jurisdiction to enter an order after May 1, 1995, which marked the end of the term of court in which the remittitur from Lewis’s first appeal was received. Id. at 830-831 (1), (4). This Court further held that Lewis failed to raise and pursue his claim of ineffectiveness of counsel at the earliest practicable opportunity. Id. at 830 (3).

In the instant case, Lewis contends that the trial court erred in dismissing his motion for an out-of-time appeal because his plea was not knowingly and voluntarily entered and because his counsel failed to advise him that he was subject to recidivist sentencing under OCGA § 17-10-7 (c) based on his prior felony convictions.

It is well established that a criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea, and an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty.

(Citations and punctuation omitted.) Brown v. State, 290 Ga. 321 (1) (720 SE2d 617) (2012). Where, as here, an examination of the record reveals no merit to the claimed errors, denial of a request for out-of-time appeal is proper. Adams v. State, 285 Ga. 744 (1) (683 SE2d 586) (2009).

Pretermitting whether the issues in this case were fully addressed in Lewis’s prior appeal, we find that Lewis is not entitled to an out-of-time appeal because the record establishes that his plea was knowingly and voluntarily entered, and he understood that he could be sentenced as a recidivist. Notably, all of the charges against Lewis were read into the record by the State. The trial court then determined on the record that Lewis was represented by hired counsel, he could read and write, he was not under the influence of any drugs or alcohol, and he had no mental or physical problems. During a thorough plea colloquy, the trial court inquired whether Lewis understood his right to remain silent, right to counsel, right to confront witnesses, right to present evidence and right to testify on his own behalf. Lewis answered affirmatively to each question posed by the trial court. The trial court further inquired whether Lewis understood that he was presumed innocent and the State had the burden of proof. Again, Lewis answered affirmatively. The trial court also had Lewis complete a guilty plea petition and confirmed that Lewis conferred with his counsel regarding the questions and statements in that petition.

Decided March 26, 2014.

Jeremy P. Lewis, pro se.

Shannon G. Wallace, District Attorney, Cliff Head, Assistant District Attorney, for appellee.

The trial court also confirmed on the record that Lewis understood the maximum fine and sentence for each count, that he was charged with being a recidivist, that the trial court could impose consecutive sentences and that the trial court could take his prior offenses into consideration in deciding whether to probate all or part of his sentence. Finally, the trial court confirmed on the record that Lewis was not threatened, intimidated or coerced into pleading guilty, and that he was satisfied that his counsel had considered all the facts and possible defenses in the case.

Based on our review of the record, we conclude that Lewis has failed to demonstrate that a manifest injustice will result unless his guilty plea is invalidated. See Adams, supra, 285 Ga. at 748 (4). Moreover, it appears from our examination of the record that Lewis’s arguments regarding the validity of his plea and his counsel’s assistance can all be resolved adversely to him. See id. Consequently, Lewis cannot show that the trial court abused its discretion in denying his motion for an out-of-time appeal.

Judgment affirmed.

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

       See Lewis v. State, 229 Ga. App. 827 (494 SE2d 678) (1997), overruled in part by Kaiser v. State, 285 Ga. App. 63, 68-69 (1) (646 SE2d 84) (2007) (overruling Lewis and other cases to the extent they held that a trial court may not grant a motion to withdraw a guilty plea outside the term of court in which sentence is imposed if sentence is void).

       In two separate indictments, Lewis was charged with possession of cocaine and marijuana with intent to distribute, two counts of attempted possession of lysergic acid, and two recidivist counts.

       “Ordinarily, our determination on direct appeal of a criminal judgment is res judicata, and a criminal defendant is not entitled to another bite at the apple by way of a second appeal.” (Citation, punctuation and footnote omitted.) Ward v. State, 299 Ga. App. 63, 64 (682 SE2d 128) (2009).


author: Ray, Judge.

text:
    A13A1881.
    In the Interest of B. T. H. et al., children.
    (757 SE2d 167)
   Ray, Judge.

This is an appeal from an order of the Chattooga County Juvenile Court adjudicating two minor children, B. T. H. and S. B. P, deprived. The appeal was filed by the mother of both children and by the father of S. B. P. They contend that the juvenile court erred by (1) entering an adjudicatory order following a 72-hour detention hearing and (2) refusing to transfer venue to Floyd County. For the reasons that follow, we affirm as to venue; however, because the parents were not afforded an adequate opportunity to be heard, we reverse and remand with direction.

This action began when the children’s grandmother filed a private deprivation petition on March 13, 2013. On March 18, 2013, the juvenile court held a hearing at which both sides presented evidence and witnesses. Some of the witnesses testified, inter alia, about drug use by the parents, their failure timely to seek medical care for the children, and a lack of food in the house.

The incident that prompted the grandmother to file a private deprivation petition, however, occurred when the children were in Tennessee visiting their great-grandmother. During that time, B. T. H. had a conversation with his mother in which he told her that he would not go back to live with her, and his mother said “that she would drag [both children] out and put them in the car an[d] take them home and torture them.” After learning of this conversation, the grandmother contacted a child protective services worker in Tennessee, who told her she could not seek a protective order there because the children were not Tennessee residents. The children then went to the grandmother’s home in Chattooga County, and the grandmother initiated this action.

At the hearing, B. T. H.’s father testified that, about three weeks prior to the hearing, he had seen prescription pain pills, Oxycontin, Xanax, and heroin in the bedroom shared by the mother and S. B. P.’s father, and that the mother took drugs by “snorting” them while S. B. P.’s father took them intravenously. He also testified that when B. T. H. came to Tennessee, the mother had put a hydrocodone pill in B. T. H.’s shoe and had told the child about it. The pill was meant as a “surprise” for B. T. H.’s father. B. T. H.’s father also stated that he was present when B. T. H. told the mother that he did not want to live with her any longer, and she responded that she would drag the children out and torture them. He testified that B. T. H. “was crying vehemently in a fetal position just scared to death.”

The mother denied having illegal drugs in her home and presented the results of a drug screen done that morning showing positive results only for her prescription medication, Ativan. She denied threatening to torture the children, but said that B. T. H. accused her of lying and told her “I don’t want to come home[,]” and she told him, “to[o] bad, you’re coming home.” S. B. P.’s father testified that he did not use illegal drugs and that there were none in his home. He also presented a drug screen from two days earlier showing positive results for Oxycodone, for which he stated that he had a prescription. He testified that he had been incarcerated for the sale and delivery of morphine.

The juvenile court spoke to the children in camera. B. T. H. testified that his mother and S. B. P.’s father were “always fighting” and stayed in their room “24, 7.” S. B. P. testified that her mother smoked marijuana, and B. T. H. stated, “You can smell drugs and pot throughout the whole house[,]” and that he sometimes got up in the night only to find S. B. P.’s father “passed out[.]” He said he was afraid to go home, and that his mother had slapped him and pinched S. B. P.’s leg. S. B. P. told the juvenile court that she did not want to go home because she was “totally scared,” and that if she and her brother were sent home, the parents would “probably torture us in some way or another.”

1. The mother and S. B. P.’s father contend that the juvenile court erred in treating the 72-hour detention hearing “post hoc” as an adjudicatory hearing. We agree.

As noted above, the grandmother initiated the action with a deprivation petition. That same day, the juvenile court ordered emergency shelter care for the children with the grandmother pursuant to OCGA § 15-11-46, timely scheduled what its order referred to as a “72 Hour Hearing,” and gave notice to the parents to appear. At the hearing, the juvenile court confirmed at the outset that this was a hearing following an “emergency order,” and at the end of the hearing, stated from the bench:

I find there is enough evidence and that there is deprivation that exists to the extent where Pm going to continue the emergency order in place and place the children at this time with their grandmother . . . this is a temporary situation, nothing that’s done in this Court on the children is permanent.

(Emphasis supplied.) The day after the hearing, however, the juvenile court entered an “Order of Adjudication and Disposition.” While we recognize that an order is defined not by its nomenclature but by its substance, see generally In re Estate of Sims, 246 Ga. App. 451, 452 (540 SE2d 650) (2000), in substance this was indeed an adjudicatory order. The juvenile court stated that it had held an “Adjudicatory Hearing” and the order contained conclusions of law and — albeit somewhat rudimentary — findings of fact.

OCGA § 15-11-49 (e) provides that if, as here, a child is alleged to be deprived and is not released after a 72-hour hearing, a deprivation petition “shall” be presented to the court within five days of the detention hearing. As the grandmother points out, her deprivation petition was indeed presented within five days of the hearing, but the petition was presented five days before, rather than after the hearing, as clearly contemplated by the statute. The parents correctly contend that OCGA § 15-11-39 (a) provides that an adjudicatory hearing must be scheduled within ten days after the filing of the petition.

“The fundamental idea of due process is notice and an opportunity to be heard. The Code recognizes that the parent is a party to proceedings involving his child. As parties to a deprivation hearing, parents are entitled to notice and an adequate opportunity to be heard.” (Citations and punctuation omitted.) In the Interest of A. J., 269 Ga. App. 580, 581 (1) (604 SE2d 635) (2004). Here, the parents received notice of a 72-hour hearing, not of a full deprivation hearing, and they did not have sufficient notice of the type of proceeding for which they needed to prepare. Also, when the parents’ attorney moved for a forensic psychological interview with the children, the juvenile court, apparently denying that motion, noted that

[a] nything I do today is going to be temporary and you know, for me to get a forensic scientist in here today for a temporary hearing, if what I do today is not satisfactory to one party or the other then they’ve got plenty of time to build up a case and get all of these things done and get it in the proper place for it to be a permanent order[.]

While the juvenile court’s order expires by its own terms in March 2015, see OCGA § 15-11-58.1 (a), it functions as an adjudicatory order and the parents were harmed because they were not given sufficient notice or opportunity to prepare. See In the Interest of A. R., 295 Ga. App. 22, 29 (7), n. 13 (670 SE2d 858) (2008) (harm must be shown in order to warrant reversal). “Because [the parents were] denied an opportunity to be heard, constitutionally or as provided by statute, the deprivation proceedings at issue can be but a nullity.” (Citations omitted.) In the Interest of A. J., supra at 581 (1). Accordingly, we reverse this portion of the order and remand the case for a further hearing not inconsistent with this opinion.

2. The mother and S. B. P.’s father also contend that the trial court erred in denying their motion to transfer venue in the case to Floyd County, where the children resided with their mother prior to the filing of the deprivation petition. We disagree.

OCGA § 15-11-29 (a) of the juvenile code provides as to venue:

A proceeding under this article may be commenced in the county in which the child resides. ... If deprivation is alleged, the proceeding may be brought in the county in which the child is present when it is commenced; provided, however, that for the convenience of the parties and witnesses, the court may transfer the proceeding to the county in which the child resides. . . .

(Emphasis supplied.)

“In considering the trial court’s ruling on the motion to transfer venue, we affirm the trial court’s findings on disputed factual questions relating to venue if there is any evidence to support them. But we review de novo the trial court’s application of the law to undisputed facts.” (Citation and punctuation omitted; emphasis supplied.) Hamner v. Turpen, 319 Ga. App. 619, 620 (737 SE2d 721) (2013).

The parents argue that venue in the county where the children are present, rather than where they reside, is appropriate only when it is

based on some immediate fortuitous exigency relating to the child’s alleged deprivation. To say otherwise would allow OCGA § [15-11-29 (a)’s] alternative venue provision to be too broadly employed as a tool for arbitrary manipulation of venue of any juvenile deprivation proceedings to any Georgia county outside a subject child’s legal domicile.

In the Interest of B. G., 238 Ga. App. 227, 229 (518 SE2d 451) (1999). The parents contend that there was no such exigency in the instant case. However, the testimony before the juvenile court was that when B. T. H. told his mother he did not want to come home, she threatened to come to Tennessee and that the children would be “drug out and tortured.” In response, the grandmother removed them to her home in Chattooga County and immediately filed a deprivation petition. Because there was some evidence of exigency supporting the juvenile court’s decision as to venue for the hearing, we find no error.

Decided March 26, 2014.

McRae, Stegall, Peek, Harman, Smith & Manning, John F. Niedrach, for appellants.

Todd M. Johnson, for appellee.

Judgment affirmed in part and reversed in part, and case remanded.

Barnes, P. J., and Miller, J., concur.

       The mother had custody of both children. B. T. H.’s father did not appeal, but testified as a witness below.

       This section, and the other sections of the juvenile code cited herein were repealed by Ga. L. 2013, p. 294, § 1-1, effective January 1, 2014.

       This Code section was repealed effective January 1, 2014. Ga. L. 2013, p. 294, § 1-1.

       In denying the motion to transfer, however, the juvenile court stated that the only requirement for its jurisdiction was for “the children to be in the [cjounty.” Because of the exigency requirement when children are present, rather than reside in the county where the case is heard, see In the Interest of B. G., supra, we affirm here because the juvenile court was right for any reason. City of Gainesville v. Dodd, 275 Ga. 824, 835 (573 SE2d 369) (2002).


author: RAY, Judge.

text:
    A13A1921.
    JACKSON et al. v. PAYNE.
    (757 SE2d 164)
   RAY, Judge.

Brooke Payne brought suit against Fulton County Sheriff Theodore Jackson, Deputy Anthony Robinson, Deputy Clinton McCrory, and others seeking damages arising out of the execution of a writ of fieri facias (“fi. fa.”). Payne alleges that, after the deputies confronted bim in a public place and took all of his personal possessions pursuant to the fi. fa., the deputies then detained him, forced him into the back of a sheriff’s car, and took him against his will to his hotel room several miles away to seize other personal property located therein. Payne seeks damages based on the deputies’ conduct, which includes imprisonment for a debt, illegal detention, malicious and wrongful use of process, and intentional infliction of emotional distress. Payne sued Sheriff Jackson in his individual and personal capacity, alleging that he failed properly to supervise and train his deputies with respect to the execution of fi. fas., and failed to promulgate rules and establish policies to prevent illegal detention and false arrest during the execution of a fi. fa.

The defendants filed a motion for summary judgment asserting, inter alia, that the suit was barred under the doctrine of official immunity. The trial court denied the defendants’ motion for summary judgment, and they appeal. For the reasons that follow, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation and footnote omitted.) Bateast v. DeKalb County, 258 Ga. App. 131, 131 (572 SE2d 756) (2002).

1. The defendants contend that the trial court erred when it denied their motion for summary judgment on the issue of official immunity with regard to the deputies’ actions during the execution of the fi. fa. We find that denial of summary judgment on this issue was proper.

Under the doctrine of official immunity, “a public officer or employee may be personally liable for his negligent ministerial acts, [but] he may not be held liable for his discretionary acts unless such acts are willful, wanton, or outside the scope of his authority.” (Citations omitted.) Gilbert v. Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476) (1994) (physical precedent only); McDay v. City of Atlanta, 204 Ga. App. 621, 621-622 (1) (420 SE2d 75) (1992). We are aware of no authority under which a law enforcement officer may detain or take a judgment debtor into custody during the execution of a fi. fa., absent exigent circumstances or probable cause to believe that the debtor had committed a crime.

Under the facts set forth in Payne’s verified complaint, the deputies approached Payne at Center Stage, which is a concert venue in Atlanta, for the purpose of executing the fi. fa. After seizing all of the personal property that Payne had in his possession, the deputies then allegedly forced him to get into their sheriff’s car and transported him against his will to his hotel room several miles away. There, they compelled Payne to give them access to his hotel room for the purpose of seizing more of his personal property.

Although Payne made several requests that he be allowed to leave the hotel room and to speak with his attorney, the deputies detained Payne and told him that he could not leave the room or speak to his attorney. Payne was held against his will in the hotel room for more than an hour, during which time Payne was ordered to remove his clothes. Ultimately, the deputies seized all of his personal possessions from the hotel room, including his clothes, and he was left there wearing only his underwear.

After the execution of the fi. fa., the deputies completed an incident report. The report indicates that Payne had been arrested at some point during the execution of the fi. fa.

Although Deputy Robinson testified at his deposition that Payne was never under arrest, that he went with the deputies voluntarily, and that he never asked to leave the hotel room, Deputy Robinson’s version of the facts is not controlling. On a motion for summary judgment, we must accept the nonmovant’s version of the facts as true. Bateast, supra. Under Payne’s version of the facts, a jury could make a reasonable inference that the deputies arrested Payne during the execution of the fi. fa. and detained him without authority, thereby deliberately intending to do a wrongful act. Accordingly, whether the deputies acted with actual malice or outside the scope of their authority in this case remains a question of fact. Id. at 132.

2. Sheriff Jackson contends that the trial court erred when it denied the motion for summary judgment on the issue of official immunity with respect to Payne’s claims against him based on negligent supervision and training. We agree.

In his complaint, Payne alleges that Sheriff Jackson is liable for damages because he failed adequately to train and supervise the deputies regarding the execution of fi. fas. Specifically, Payne alleges that Sheriff Jackson failed to promulgate, institute, or establish policies or procedures to prevent the illegal detention or arrest of debtors during the execution of fi. fas. and, thus, “failfed] to [exercise] ordinary care and diligence to prevent such wrongs from occurring[.]”

At his deposition, Deputy Robinson testified that the sheriff’s department provided him with training concerning the execution of fi. fas. “maybe once every four or five years.” Deputy Robinson further testified that the policies of the sheriff’s department basically state (i) where the deputies were permitted to execute the fi. fas., and (ii) what property may be seized. He testified further that he was unaware of any sheriff’s department policies or procedures that prohibit the detention or arrest of a debtor during the execution of a fi. fa., and that he had never received any instruction about whether it would be permissible to detain or restrict the freedom of movement of a debtor for the purpose of executing a fi. fa.

“[T]his Court has consistently held that the operation of a police department, including the degree of training and supervision to be provided its officers, is a discretionary governmental function as opposed to a ministerial, proprietary, or administratively routine function.” Harvey v. Nichols, 260 Ga. App. 187, 191 (1) (a) (581 SE2d 272) (2003). See Carter v. Glenn, 249 Ga. App. 414, 416 (2) (548 SE2d 110) (2001); Bontwell v. Dept. of Corrections, 226 Ga. App. 524, 527-528 (4) (a) (486 SE2d 917) (1997) (physical precedent only); McDay, supra. Thus, Sheriff Jackson mayincur liability as a result of the exercise of such a discretionary function only when the acts complained of are done with wilfulness, malice, or corruption. Carter, supra. Payne has failed to meet this requirement.

Decided March 26, 2014.

Larry W. Ramsey, Jr., Steven E. Rosenberg, Walter B. Yarbrough, David R. Lowman, for appellants.

Herald J. A. Alexander, for appellee.

Although our Supreme Court has acknowledged that a sheriff might be held liable for negligent supervision when sued in his personal capacity, Seay v. Cleveland, 270 Ga. 64, 65 (1) (508 SE2d 159) (1998), the Court further noted that a sheriff would still be protected from such a suit to the extent that official immunity applies. Id. at 65 (1), n. 1.

As Payne has offered no evidence that Sheriff Jackson acted with malice or deliberate indifference to a known risk of harm with regard to the supervision and training of his deputies, the trial court erred in denying summary judgment to Sheriff Jackson on the issue of official immunity with respect to these claims.

Judgment affirmed in part and reversed in part.

Barnes, P. J., concurs. Miller, J., concurs as to Division 1 and concurs in judgment only as to Division 2.

       The trial court dismissed Payne’s claims against Jackson in his official capacity as sheriff, but allowed the claims against him to proceed in his individual and personal capacity.

       Payne’s argument that liability can be imposed on Sheriff Jackson based upon OCGA § 15-16-24 (2) is without merit.