author: Ray, Judge.

text:
    A15A1282.
    LYMAN et al. v. CELLCHEM INTERNATIONAL, LLC.
    (779 SE2d 474)
   Ray, Judge.

In 2010, Cellchem International, LLC, sued husband and wife Dale and Helen Lyman, both of whom had worked for Cellchem in various capacities, and also sued Tritec International, Inc., and Shekoy Chemicals US, Inc. (collectively “Appellants”) alleging, inter alia, claims for computer trespass and computer theft, breach of fiduciary duty, and tortious interference with business relations. In 2014, a jury awarded nearly $7.4 million to Cellchem, divided variously among the individual Appellants, which included punitive damages and attorney fees.

In the instant appeal, the Appellants argue that the trial court erred in: (1) denying their motion for a directed verdict and new trial on Cellchem’s claim for tortious interference with business relations; (2) denying Mr. Lyman and Shekoy’s motion for a new trial on Cellchem’s claims of computer theft and computer trespass; (3) denying the Appellants’ motion for a new trial on Cellchem’s claim for punitive damages; (4) admitting certain Cellchem exhibits into evidence; and (5) precluding the Appellants from using Cellchem’s federal tax returns at trial. For the reasons that follow, we reverse as to the tortious interference claim; affirm as to the claims of computer theft and computer trespass; remand for a new trial as to punitive damages; reverse as to Exhibits 72 and 73 and affirm as to Exhibits 76 and 77; and reverse as to the issue of the federal tax returns.

In brief, this case turns on Cellchem’s allegations that the Lymans and a Chinese company called Jiangsu Yoke Technology Company Limited (hereinafter “Yoke”), which is not a party to this litigation, worked in conjunction with other entities to create a competing business designed to destroy Cellchem.

Cellchem sells flame retardants for use in the rigid foam industry. One of those flame retardants is known as TCPR Mr. Lyman sold TCPP on behalf of Cellchem from 2003 until December 2009. His relationship with Cellchem was not exclusive, as he also sold materials for another company.

About six months prior to Mr. Lyman’s resignation from Cellchem, Shekoy Chemicals US, Inc. (“Shekoy”) was incorporated in the State of Georgia. Yoke created Shekoy to sell TCPP in the United States. Like Cellchem, Shekoy also is in the flame retardant business. Shekoy began selling TCPP in the United States in January 2010.

Mr. Lyman was an officer of Shekoy from its incorporation in May 2009, during the same time period when he also worked as Cellchem’s sales agent. He introduced Yoke to Cellchem, and Yoke became one of Cellchem’s TCPP suppliers. However, on December 8, 2009, Shekoy, along with a company wholly-owned by Mr. Lyman called Tritec International, Inc. (“Tritec”), entered into a deal with Yoke to distribute TCPP in the United States. When Cellchem learned about the deal, it ended its business relationship with Yoke.

Helen Lyman was Cellchem’s operations manager. She resigned from Cellchem in an e-mail dated November 28, 2009. Just prior to resigning, Mrs. Lyman ordered 33 isotanks of TCPP, totaling more than 1 million pounds of the product. One of the Cellchem owners had directed her to order nine of those isotanks. Mrs. Lyman testified that she informed Cellchem about the rest of the orders, but when presented with a spreadsheet of TCPP orders, she acknowledged that those orders were not on it. Cellchem testified that it was unable to store and pay for the rest of the TCPP orders, which hampered its ability to place future orders.

After Mrs. Lyman resigned, Mr. Lyman returned her work laptop to Cellchem. Cellchem claimed that Mrs. Lyman’s business e-mails, which it needed, had been deleted. Cellchem presented evidence that its confidential QuickBooks files had been copied using a thumb drive and computers that the Lymans owned.

After a trial, a jury returned a nearly $7.4 million verdict against the Appellants, divided as follows: (1) $100,000 against Mr. Lyman, Mrs. Lyman, and Shekoy on the computer trespass claim; (2) $100,000 against Mr. Lyman, Mrs. Lyman, and Shekoy on the computer theft claim; (3) $900,000 against Mr. Lyman, Mrs. Lyman, and Tritec for breach of fiduciary duty; (4) $900,000 against all Appellants for tortious interference with business relations; (5) $298,433.73 in attorney fees against all Appellants; and (6) $5.1 million against all Appellants for punitive damages. Only this latter punitive damages award was specifically apportioned between the Appellants: 98 percent to Shekoy, 1 percent to Mr. Lyman, 0.5 percent to Mrs. Lyman, and 0.5 percent to Tritec.

1. The Appellants first argue that the trial court erred in denying their motions for a directed verdict and new trial on Cellchem’s claim of tortious interference with business relations. We agree.

“In reviewing the denial of a motion for a directed verdict... or motion for new trial, this Court must affirm if there is any evidence to support the jury’s verdict, and in making this determination, we must construe the evidence in the light most favorable to the prevailing party.” (Citations and punctuation omitted.) Ferman v. Bailey, 292 Ga. App. 288, 290 (2) (664 SE2d 285) (2008). Any evidentiary ambiguity must be resolved in favor of the verdict. Dossie v. Sherwood, 308 Ga. App. 185, 186 (707 SE2d 131) (2011). Moreover, after a jury verdict is approved by the trial court, a judgment, supported by the evidence, will not be disturbed on appeal unless there is a material error of law. Archer Motor Co. v. Intl. Business Investments, 193 Ga. App. 86, 88 (2) (386 SE2d 918) (1989).

To prevail on a claim of tortious interference with business relations, a plaintiff must prove the following elements: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of a contractual obligation or caused a party or a third party to discontinue or fail to enter into an anticipated relationship with the plaintiff; and (4) the defendant’s tor-tious conduct proximately caused damage to the plaintiff. Additionally, to be liable for interference with contractual or business relations, one must be a stranger to both the contract and the business relationship giving rise to and underpinning the contract. In other words, all parties to a comprehensive interwoven set of contracts are not liable for tortious interference with any of the contracts or business relationships.

(Punctuation and footnotes omitted.) OnBrand Media v. Codex Consulting, 301 Ga. App. 141, 150 (2) (f) (687 SE2d 168) (2009). A third party who would benefit from the business relationship, even if not an intended beneficiary, is not a stranger to that relationship. Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 609 (2) (503 SE2d 278) (1998).

In its complaint and amended complaint, Cellchem argued that Mr. Lyman, Mrs. Lyman, Tritec, and Shekoy “interfered] with Cell-chem’s business relations with its suppliers, customers and prospective customers pursuant to OCGA § 51-12-30[.]” The Appellants contend that Cellchem failed to identify any business relationship with which they interfered and failed to show that they were strangers to the business relationships, as required to establish an actionable tortious interference claim.

(a) Mr. Lyman and Tritec’s interference between Yoke (Shekoy’s parent company) and Cellchem. The Appellants argue that because Cellchem unilaterally ended its business relationship with Yoke, there is no evidence that Mr. Lyman and Tritec induced Yoke to discontinue its business relationship with Cellchem. Dennis Spicher, who is part of the joint venture that owns Cellchem, testified that Cellchem “cut . . . off’ its business relationship with Yoke after the Lymans left Cellchem’s employ. He testified that the Lymans “came to us after the fact and they said we would like to continue to do business with you[,]” but that the Lymans told him to “shut down all of your terminals and buy from us, and we’ll ship the product directly to your customer.” Given that Cellchem did not have contracts with its suppliers, i.e., Yoke, Cellchem was free to cut off the relationship, and it did. Even though the Lymans’ behavior may have motivated Cellchem to end the relationship, the law requires proof that Mr. Lyman and Tritec “induced a third party or parties not to enter into or continue a business relationship with the plaintiff that thereby caused financial injury.” (Citation omitted; emphasis supplied.) Taylor v. Calvary Baptist Temple, 279 Ga. App. 71, 72 (2) (630 SE2d 604) (2006). Given that Cellchem ended the relationship with Yoke, we cannot find any evidence that Yoke — the only “third party” at issue in this claim — was induced to end a relationship that it did not, in fact, end.

(b) Mrs. Lyman’s interference with Cellchem’s customers and suppliers. The Appellants contend, inter alia, that a tortious interference claim will not stand against Mrs. Lyman because she was not a stranger to the business relationships at issue. We agree.

Spicher, one of the joint venturers who owned Cellchem, testified that Mrs. Lyman came to work at Cellchem as operations manager. Her duties included independently placing product orders with suppliers that Cellchem was contractually obligated to pay for; having contact with and receiving orders from Cellchem customers who purchased TCPP from the company; and fulfilling those orders. Mrs. Lyman also testified that, “customers would call, I would get their orders... get them on a truck and get them to wherever the customer needed them.” She also testified that she handled purchase orders for Cellchem. Further, testimony showed that Mrs. Lyman was paid by the joint venturers, and that Cellchem reimbursed them for her salary.

Mrs. Lyman’s own testimony confirms that she had a direct relationship with Cellchem’s customers and received benefit in the form of payment for her work. In Tom’s Amusement Co. v. Total Vending Svcs., 243 Ga. App. 294, 294 (533 SE2d413) (2000) (physical precedent only), a Tom’s route manager secretly disclosed confidential information to a competitor and misrepresented the company’s financial status such that a customer terminated its relationship with Tom’s. This Court held that,

[rjegardless of whether an employee is acting as an agent of his employer when engaging in the interference, he is not a stranger to the business relationship between his employer and the customers he personally services and thus cannot be held liable under a claim of tortious interference.

Id. at 296 (2) (a), citing Parks v. Multimedia Technologies, 239 Ga. App. 282, 291-292 (3) (f) (520 SE2d 517) (1999). Because of the interwoven relationship between Mrs. Lyman’s duties and Cellchem’s customers and suppliers, Atlanta Market Center, supra at 609-610 (2), there is no evidence to support the finding that Mrs. Lyman was a stranger in the business relationships alleged.

(c) Shekoy’s interference with the relationship between Cellchem and its customers. Again, we begin by examining whether there is any evidence to support that Shekoy was a stranger to the relationship between Cellchem and its customers. Cellchem’s appellate briefs present us with no argument on this point as it relates to Shekoy.

As already established, Mr. Lyman is Shekoy’s general manager and is not a stranger to the relationship between Cellchem, which also employed him, and Cellchem’s customers. Yoke, the producer from which Cellchem bought TCPP during the time period relevant to this case, owns the company that owns Shekoy. Yoke obviously had a financial interest in Cellchem’s customers buying the TCPP it sold to Cellchem, so Yoke cannot have been a stranger to the relationship between Cellchem and its customers. Further, Mr. Lyman executed an agreement between Shekoy, Yoke, and his own company, Tritec, to form a TCPP sales/distribution company in the United States, clearly establishing that Yoke and Shekoy had a mutual financial interest in TCPP sales. “Where a defendant has a financial interest in one of the parties to the contract or in the contract [or business relationship], the defendant is not a stranger to the contract or business relationship, even though it is not a signatory to the contract.” (Citation omitted.) Dalton Diversified v. AmSouth Bank, 270 Ga. App. 203, 209 (4) (a) (605 SE2d 892) (2004). The wrongful conduct in which Shekoy is alleged to have participated — such as using information belonging to Cellchem, as provided by Mr. Lyman, to lure Cellchem’s customers, as discussed more fully in Division 2, infra — is directly related to the “interwoven contractual relationship” between Yoke (which is, ultimately, Shekoy’s parent company) and Cellchem for TCPP purchase and sales. See Perry Golf Course Dev. v. Housing Auth. of the City of Atlanta, 294 Ga. App. 387, 389-390 (3) (670 SE2d 171) (2008) (public housing authority was not a stranger to contractual relationship between members of an LLC formed to redevelop public housing). Accord Jefferson-Pilot Communications Co. v. Phoenix City Broadcasting, Ltd. of Atlanta, 205 Ga. App. 57, 60 (1) (421 SE2d295) (1992) (purchaser of radio station was not a stranger to contract between radio station’s sellers and seller’s lenders).

Defined more specifically, the issue before us encompasses the question of whether Shekoy, as a subsidiary of parent-company Yoke (which, as noted above, is not a stranger to the relationship between Cellchem and Cellchem’s customers), can itself be a stranger to the relationship between those entities. This Court in the past contemplated that, under some circumstances, a parent corporation might be a stranger to its subsidiary’s business relations such that a claim against the parent for tortious interference could lie. See SunAmerica Financial v. 260 Peachtree St., Inc., 202 Ga. App. 790, 797-798 (3) (b) (415 SE2d 677) (1992). However, since that time, our Supreme Court in Atlanta Market Center, supra at 609-610 (2), specifically disapproved of SunAmerica on this point, finding that “all parties to an interwoven contractual arrangement [or business relationship] are not liable for tortious interference with any of the contracts or business relationships.” (Citation omitted; emphasis supplied.) Id. at 610 (2). Or, as stated plainly in In re Hercules Automotive Products, 245 BR 903, 910 (I) (Bankr. M.D. Ga. 1999), “[i]t follows from the holding in Atlanta Market Center that as a matter of law, a parent corporation cannot be a stranger to its subsidiaries’ business or contractual relations, and that no claim can be sustained against a parent for tortious interference with such relations.” Here, while Shekoy occupies the role of subsidiary and not parent, we are persuaded that the interwoven web of business arrangements likewise applies in this context and that Shekoy, as a subsidiary, cannot be a stranger to its parent Yoke’s business relations, which included the relationship between Cellchem and its customers. Therefore, Shekoy, through its parent, had a business relationship with Cellchem and its customers and is not a stranger to that relationship. Perry v. Unum Life Ins. Co. of America, 353 FSupp.2d 1237, 1240-1241 (III) (B) (N.D. Ga. 2005) (recognizing the Supreme Court of Georgia’s endorsement, in Atlanta Market Center, of a line of cases reducing the number of entities against which a claim of tortious interference with business relations may lie and, in that context, In re Hercules and its finding that Atlanta Market Center found that a parent corporation cannot be a stranger to its subsidiaries’ business or contractual relations).

While it is clear that the Appellants were not blameless in their machinations involving Cellchem, as evidenced, inter alia, by the unappealed breach of fiduciary duty verdict, Cellchem has failed to point us to any evidence that supports all of the required elements of tortious interference, as required, and we must reverse as to all Appellants.

2. The Appellants next argue that the trial court erred in denying their motion for new trial as to the verdicts finding computer theft (OCGA § 16-9-93 (a)) and computer trespass (OCGA § 16-9-93 (b)) against Mr. Lyman and Shekoy. We disagree.

Cellchem argued, inter alia, that Mr. Lyman deleted backup files and copied computer files, including a QuickBooks file containing confidential financial data from a laptop provided to Mrs. Lyman during her employment. At trial, James Persinger, a cybercrime computer forensic specialist and former police officer, testified as an expert witness that he examined four computers belonging, variously, to Mr. and Mrs. Lyman, as well as two thumb drives that Mr. Lyman produced for the litigation and that he owned. Persinger testified that his forensic examination of the computers showed that a different thumb drive, which the Lymans had failed to produce despite a court order, had been inserted into one of the computers (identified as the Cellchem Sony) and Cellchem’s QuickBooks files had been copied onto it. He determined the QuickBooks files had been accessed and backed up, among other things, on the Cellchem Sony on November 27, 2009, and that the Cellchem Sony was last used on November 28 and 29, 2009. Persinger also found that Mr. Lyman’s thumb drives had been inserted into both the Cellchem Sony and another computer, called the Shekoy PC, on November 29, 2009, and that three computers, identified as the Shekoy PC; the Cellchem Sony, which Mrs. Lyman used for her work at Cellchem; and the Lyman Gateway “were all sharing the same thumb drive at the same time period” on the weekend of November 28 and 29, 2009, the same time that Mrs. Lyman resigned from Cellchem. Persinger determined that Cellchem’s QuickBooks file was also stored on the Lyman Gateway. Cellchem then presented evidence that Mr. Lyman, while working for Shekoy, used Cellchem’s computer data that was stored on one of the thumb drives to create a PowerPoint for Yoke, which is Shekoy’s parent company, about direct sales of TCPP. Mr. Lyman denied this.

Mr. Lyman alleges on appeal that “he was in Pennsylvania when the purported computer crimes took place [,]” but the record shows that although he testified that he was in Pennsylvania on November 27, 2009, he also stated that he returned to Georgia on November 28, and was there on November 29, 2009. On December 1, 2009, Mr. Lyman had a dinner meeting with a Shekoy representative and with representatives from another company. That other company is among the clients that Cellchem’s president testified he lost to Shekoy. On December 8, 2009, Mr. Lyman executed an agreement between Shekoy, Yoke, and his own company, Tritec, regarding the establishment of a TCPP sales/distribution business in the United States which Tritec would manage.

OCGA § 16-9-93 (a) defines computer theft as occurring when a person

. . . uses a computer or computer network with knowledge that such use is without authority and with the intention of: (1) Taking or appropriating any property of another, whether or not with the intention of depriving the owner of possession; (2) Obtaining property by any deceitful means or artful practice; or (3) Converting property to such person’s use in violation of an agreement or other known legal obligation to make a specified application or disposition of such property [.]

OCGA § 16-9-93 (b) defines computer trespass as occurring when a person

. . . uses a computer or computer network with knowledge that such use is without authority and with the intention of: (1) Deleting or in any way removing, either temporarily or permanently, any computer program or data from a computer or computer network; (2) Obstructing, interrupting, or in any way interfering with the use of a computer program or data; or (3) Altering, damaging, or in any way causing the malfunction of a computer, computer network, or computer program [.]

In this context, under OCGA § 16-9-92 (16) (A) and (B), the term “[u]se” includes, but is not limited to, causing or attempting to cause a computer to perform computer operations, or interrupting the function of a computer or computer program or data. OCGA § 16-9-92 (18) defines “[w]ithout authority” to include “the use of a computer or computer network in a manner that exceeds any right or permission granted by the owner of the computer or computer network.”

Although Mr. Lyman testified that he only used the Cellchem laptop for e-mail, the evidence from the computer expert, as outlined above, as to the insertion of thumb drives and copying/backup of QuickBooks files, while circumstantial, is more than enough to satisfy the required “any evidence” standard of review, Ferman, supra, and to affirm the verdict as to Mr. Lyman. Further, given the proximity of the file copying, Mr. Lyman’s business trip with the Shekoy representative and subsequent agreement between them, we cannot say the trial court lacked any evidence to support the verdict against Shekoy. See Clarence L. Martin, P. C. v. Chatham County Tax Commissioner, 258 Ga. App. 349, 350 (574 SE2d 407) (2002) (a corporate entity has imputed knowledge of matters within the knowledge of its officer when that knowledge is within the scope of the officer’s duties).

3. The Appellants next argue that the trial court erred in admitting over their objections certain financial spreadsheets that Cellchem tendered to prove its damages. These spreadsheets were marked as Exhibits 72, 73, 76, and 77.

We review for abuse of discretion a trial court’s decision as to whether a proper foundation was laid for a document’s admission as a business record. Roberts v. Community & Southern Bank, 331 Ga. App. 364, 369 (2) (771 SE2d 68) (2015).

At trial, the Appellants objected to Exhibits 72 and 73, which are expense reports, as summaries prepared for trial rather than in the regular course of business. They objected to Exhibits 76 and 77, which are sales reports, as being summaries of underlying documents that never were made available to the court or the Appellants. In both instances, Cellchem countered with testimony from Steven Gabel-man, the vice president of Cellchem, that the exhibits were business records, created at or near the time the events occurred with information from someone with personal knowledge and a business duty to report, and kept in the regular course and practice of Cellchem’s business.

OCGA § 24-8-803 (6) provides in pertinent part that records of regularly conducted activity may be admissible as a hearsay exception:

Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness , a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness [.]

(a) Exhibits 72 and, 73. However, Gabelman also testified that in order to show cost divisions between TCPP and other products, Exhibits 72 and 73 were specially prepared for trial. He testified:

We had a special document made. We don’t, in our regular business records, divide a lot of those costs. And we try to make it, not simpler, but more pertinent to the trial by pulling out the TCPP from the other things that we sell, and, therefore, trying to make it more user-friendly for the [c] ourt.

It is well settled that documents prepared for litigation are not “compiled as a matter of regular practice” for purposes of OCGA § 24-8-803 (6). See Noble v. Alabama, 872 F2d 361, 366 (III) (11th Cir. 1989). Accord E. H. Crump Co. of Ga. v. Millar, 200 Ga. App. 598, 601 (3) (409 SE2d 235) (1991) (applying Georgia’s former Evidence Code). We are further persuaded by Carrie Contractors v. Blount Constr. Group of Blount, Inc., 968 FSupp. 662, 666-667 (M.D. Ala. 1997), which found, in an almost identical scenario, that where an affidavit from the president of one of the companies involved in the litigation stated both that the records at issue were prepared in the ordinary course of business and that they were prepared to aid attempts to settle the lawsuit, the records were not admissible because they were “prepared largely for the purposes of litigation” rather than “in the normal course of business.” (Citation omitted.) Id. at 667. Because these summaries were used to establish damages, which the jury awarded, we cannot say their admission was harmless error, and the Appellants are entitled to a new trial as to damages. See Noble, supra at 367 (III).

(b) Exhibits 76 and 77. As noted above, the Appellants objected to the admission of the sales report exhibits, contending that they were summaries and that the source documents underlying them had not been made available for evaluation.

First, no evidence was presented that the underlying documents were so voluminous that summaries were required. See OCGA § 24-10-1006. Compare Lawhorn v. State, 200 Ga.App. 451, 456 (4) (408 SE2d 425) (1991). Second, there is no evidence as to whether the underlying documents ever were made available. Finally, the exhibits list transactions dated between 2006 and 2013 and contain no date indicating when they were created. However, as Gabelman established a foundation to authenticate these exhibits as data compilations, including testifying, inter alia, that they were created in the ordinary course of business and near the time of the events depicted, and no contrary evidence was presented as to these specific exhibits, we cannot say that the trial court abused its discretion in admitting them. See generally Roberts, supra at 372 (2).

4. The Appellants argue the trial court erred in denying their motion for new trial on the issue of punitive damages. We agree.

While the jury apportioned the $5.1 million in punitive damages among the Appellants (98 percent to Shekoy, 1 percent to Mr. Lyman, and 0.5 percent each to Mrs. Lyman and Tritec), the verdict form did not delineate to which claims the damages were assigned, or in what proportion. Given our decision reversing the trial court in Division 1, those claims cannot provide the basis for any punitive damages award. See Wolff v. Middlebrooks, 256 Ga.App. 268, 271 (3) (568 SE2d 88) (2002) (finding that when appellate court cannot determine upon what basis the jury rendered its verdict on a general verdict form, it also cannot determine the underlying tort theory upon which the jury based its award for punitive damages, and because jury may have based its award on an underlying claim for which there could be no liability, there can likewise be no recovery for punitive damages). However, the breach of fiduciary duty verdict in Cellchem’s favor, which was not appealed, may support an award of punitive damages. Bunch v. Byington, 292 Ga. App. 497, 504 (4) (664 SE2d 842) (2008). The findings of computer theft and computer trespass against Mr. Lyman and Shekoy, which we affirmed in Division 2, also may support a claim for punitive damages. See Automated Drawing Systems v. Integrated Network Svcs., 214 Ga. App. 122, 123 (1) (447 SE2d 109) (1994) (in case involving misappropriation of software and withholding of royalties, damages in tort consistent with OCGA § 16-9-93 (g) and punitive damages under OCGA § 51-12-5.1 (b) were authorized).

“Unfortunately, the verdict form in this case merely states that punitive damages should be awarded to [Cellchem] . . . but does not allow us to determine the underlying theory upon which the jury based its award. Accordingly, the award for punitive damages must be reversed^]” (Footnote omitted.) Southland Propane v. McWhorter, 312 Ga. App. 812, 821 (4) (720 SE2d 270) (2011). We remand this case for a new trial on punitive damages.

5. The Appellants also argue that the trial court erred in preventing them from obtaining Cellchem’s federal tax returns. We agree.

The Appellants contended at trial that they requested the tax documents via a notice to produce and that Cellchem had not provided them. The trial court initially stated that the tax records were “relevant” and “should be produced.” Later, however, Cellchem argued that the service date on the notice indicated that it was issued outside the discovery period, and the Appellants countered that a notice to produce is “under the evidence subpoena code, not under the discovery statute.” The trial court then stated that it would “reverse” itself, even though it still found the tax records “relevant,” because “it’s too late to get them; discovery is over.”

Pursuant to OCGA § 24-13-27, “a party may request the production of documents at trial by serving a notice to produce on an opposing party. Thus, the fact that the . . . discovery period had expired prior to [the Appellants] serving [their] notice to produce is irrelevant.” Gaffron v. Metropolitan Atlanta Rapid Transit Auth., 229 Ga. App. 426, 433 (4) (494 SE2d 54) (1997) (finding that the trial court erred in granting a motion to quash a notice to produce on the ground that discovery period had expired). Finding error, we reverse.

Decided November 19, 2015

Reconsideration denied December 14, 2015

Richard A. Gordon; Troutman Sanders, Stephen W. Riddell, Gary D. Knopf, Patrick J. Schwedler, for appellants.

Maner, Crumly & Chambliss, Jonathan D. Crumly, Sr., J. William Fawcett, for appellee.

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

Barnes, P. J., concurs. McMillian, J., concurs fully in Divisions 1, 2, 3 and 5 and concurs in judgment only in Division 4.

       The Lymans and Tritee do not appeal from the breach of fiduciary duty verdict; none of the Appellants has appealed the verdict on attorney fees.

       Cellchem concedes at the outset that Mr. Lyman and Tritec are not strangers to its relationship with its customers. Cellchem also specifically disclaimed any contention that Shekoy tortiously interfered with its relationship with Yoke.

       We recognize that Cellchem, of course, asserts no tortious interference claim against itself. See generally H & R Block Eastern Enterprises v. Morris, 606 F3d 1285, 1295 (III) (B) (3) (11th Cir. 2010) (“it is well-established under Georgia law [that] a party cannot tortiously interfere with its own business relationships”), citing Taylor, supra.

       See McDuffie v. Coweta County, 299 Ga. App. 500, 505 (2) (682 SE2d 609) (2009).

       OCGA § 16-9-93 (g) provides for civilreliefin the form of damages for infringement of the statute.

       Mrs. Lyman does not appeal the jury’s verdict against her on Cellchem’s computer trespass and computer theft claims.

       This thumb drive was eventually found, and the trial court sanctioned the Lymans and Tritec for violating an order to produce the thumb drive.

       “Because OCGA § 24-8-803 mirrors Rule 803 of the Federal Rules of Evidence, we will look to case law from federal courts within the Eleventh Circuit for guidance in interpreting that statute.” (Citation omitted.) Ware v. Multibank 2009-1 RES-ADC Venture, 327 Ga. App. 245, 249 (2), n. 11 (758 SE2d 145) (2014).

       Cellchem’s argument that the exhibits were based on an underlying document, referred to as D-201 and to which Appellants may have had access, is unavailing, as D-201 apparently dealt with expense records rather than the sales data at issue in Exhibits 76 and 77. Further, D-201 does not alter our decision in Division 3 (a), as there was no indication that D-201 met admissibility standards. See Peat, Inc. v. Vanguard Research, 378 F3d 1154, 1160 (II) (A) (11th Cir. 2004) (while underlying records need not be introduced, they still must be shown to be admissible).

       This case was decided under former OCGA § 24-10-26, which is now cited as OCGA § 24-13-27.

       We are unpersuaded by Cellchem’s argument that there is a question as to whether the notice actually was served. Cellchem’s lawyer merely stated that he could not locate the notice on one day of the trial; however, on another day at trial, Cellchem’s attorney called the court’s attention to the “file stamp and service date” on the notice. (Emphasis supplied.)


source: Caselaw Access Project

author: DOYLE, Chief Judge. McMlLLIAN, Judge, BARNES, Presiding Judge,

license: Public Domain

text:
    A15A0884.
    COON v. THE MEDICAL CENTER, INC.
    (780 SE2d 118)
   DOYLE, Chief Judge.

This case arises out of the mislabeling of the remains of a stillborn baby, resulting in the funeral and burial of the wrong child. The trial court initially denied summary judgment to the defendant hospital after concluding that under the choice-of-law rule of lex loci delicti, Alabama law would govern the emotional distress claims brought by the plaintiff mother, who first learned of the mishandled remains when contacted at her home in Alabama. The trial court later revisited the issue, however, and concluded that application of Alabama law would violate Georgia public policy because Alabama does not impose an “impact rule” on plaintiffs seeking damages for emotional distress arising from the negligent mishandling of human remains. After concluding that Georgia law should apply, the trial court granted summary judgment in favor of the hospital, holding that the mother’s emotional distress claims failed as a matter of law because she could not show physical injury, pecuniary loss, or sufficiently outrageous misconduct by the hospital. For the reasons discussed below, we affirm.

Summary judgment is proper only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” On appeal from a trial court’s grant of summary judgment, we “conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party.”

So viewed, the record shows that Amanda Rae Coon lives in Opelika, Alabama. On February 8, 2011, Coon, who was 37 weeks pregnant, went for a routine prenatal examination at her obstetrician-gynecologist’s office in Columbus, Georgia. During the examination, Coon learned that her unborn baby did not have a heartbeat.

The following day, Coon was admitted to a Columbus hospital owned by The Medical Center, Inc. (the “hospital”), where her labor was induced and she delivered a stillborn baby girl. After the delivery, the hospital’s bereavement coordinator spoke with Coon and her father, who informed the coordinator that the remains of the baby were to be released to a funeral home in Opelika. The bereavement coordinator completed a mortuary permit and supporting documents that included the pertinent funeral home information and placed these documents with Coon’s patient chart.

The stillborn baby initially remained with Coon in her hospital room, but Coon’s mother later informed the bereavement coordinator that Coon was tired and asked that the baby be removed. The coordinator placed Coon’s baby in a separate holding room on the same floor until someone could take the baby to the hospital morgue. In addition to Coon’s baby, there was a smaller stillborn baby boy, who was less than 20 weeks in gestation, already in the holding room.

When the bereavement coordinator placed Coon’s baby in the holding room with the smaller baby, the hospital floor was in the middle of the evening shift change. A nurse whose shift had just begun volunteered to transport both babies from the holding room to the morgue. Under a hospital policy put into effect two days earlier, identification tags were to be placed on the arm and leg of a stillborn baby and on the outside of the cadaver bag before being delivered to the morgue. The nurse filled out the three tags for both of the babies.

The nurse had not yet had an opportunity to affix the identification tags when a hospital security guard came to the floor and asked the nurse if she was ready for him to escort her to the morgue with the babies. Because the babies were not yet prepared for transport to the morgue, the security guard decided to assist the nurse with the placement of the identification tags. The security guard had never tagged a deceased baby, and his job duties did not include tagging the remains of deceased patients or preparing them for transport to the morgue.

When the security guard began assisting the nurse, they mixed up the identification tags. The nurse tagged the smaller baby with the identification tags for Coon’s baby, and the security guard tagged Coon’s baby with the identification tags for the smaller baby. The security guard placed a tag on the outside of the cadaver bag for Coon’s baby, but chose not to “fool” with the tags on the baby’s body because he did not want to remove any of the baby’s clothing. The nurse repeatedly told the security guard that he needed to place identification tags on the body of Coon’s baby, but he chose not to do so.

The nurse and the security guard transported the stillborn babies to the morgue with the wrong identification tags and logged in the remains. Because of the incorrect identification tags, the hospital mistakenly released the wrong baby to the Opelika funeral home.

On February 12, 2011, Coon, her family members, and other mourners attended a funeral at an Opelika cemetery for a deceased stillborn baby whom they believed was Coon’s. Coon and her family members did not view the baby’s remains before or during the funeral service after the funeral director advised against it, given the condition of the remains. The costs of transporting the baby from the hospital to the funeral home were paid by Coon’s husband through the military, and Coon’s aunts paid for the funeral service and donated the burial plot.

On February 23,2011, the hospital discovered that it had released the wrong baby to the Opelika funeral home. The hospital contacted the director of the Opelika funeral home, informed him of the mistake, and requested contact information for Coon’s family. The funeral director advised the hospital to contact Coon’s father rather than Coon herself because “mentally, she [would] just not [be] able to take it” if she learned of the mistaken identification.

Later that day, the hospital’s chief executive officer contacted Coon by telephone and informed her that the hospital had released the wrong baby for burial. The following day, the baby who had been mistakenly released to the funeral home was exhumed from the Opelika cemetery. The funeral home director then traveled to Columbus to deliver the exhumed baby to a different funeral home and to retrieve Coon’s baby from the hospital.

After the exhumed baby’s remains were handed over to the representative of another funeral home, the Opelika funeral director retrieved a cadaver bag from the hospital morgue that had an identification tag for Coon’s baby on the outside of it. Yet, when the director returned to his funeral home in Opelika, he discovered that the cadaver bag contained nothing but a blanket, and he had to return again to the hospital morgue to obtain Coon’s baby, whom hospital employees had left in a holding room in the morgue. In violation of hospital policy, no documentation was made in the morgue log book showing when Coon’s baby or the exhumed baby were returned to the morgue or to show when the switch occurred and who was involved.

Once the funeral director obtained the proper remains from the hospital, Coon’s baby was buried at the Opelika cemetery. The hospital paid the costs associated with the exhumation of the misidentified baby and the subsequent burial of the correct remains. Coon did not attend the second burial because she “could not handle having to go through that all over again.”

In March 2011, Coon filed the present lawsuit against the hospital, seeking damages for the emotional distress she suffered as result of the mishandling of her stillborn child’s remains. Following discovery, the hospital moved for summary judgment, contending that Coon’s emotional distress claims failed under Georgia law because Coon suffered no physical injury or pecuniary loss and the conduct of the hospital was not intentional, reckless, extreme, or outrageous. In response, Coon argued that Alabama law applied under the choice-of-law rule of lex loci delicti because she suffered the relevant emotional distress in Opelika, where she learned of the hospital’s mistake and the funeral service, burial, exhumation, and reburial had occurred. Coon further argued that under Alabama law, she was not required to prove physical injury, pecuniary loss, or intentional or reckless misconduct to support an emotional distress claim for the mishandling of human remains.

The trial court concluded that Alabama law applied and denied the hospital’s motion for summary judgment. When the hospital moved for reconsideration, the trial court denied the motion but certified its order for immediate review. The hospital then filed an application for interlocutory appeal. This Court initially granted the application but later dismissed it as improvidently granted.

Following the dismissal of the appeal, the hospital filed a renewed motion for summary judgment, contending that Alabama law should not apply under the public policy exception to the lex loci delicti rule and that all of Coon’s claims failed under Georgia law. The trial court agreed with the hospital, concluding that the application of Alabama law would contravene Georgia public policy because Alabama, unlike Georgia, does not have an “impact rule” in emotional distress cases involving the negligent mishandling of human remains. Applying Georgia law rather than Alabama law, the trial court further concluded that Coon’s claims failed as a matter of law under the more stringent standard for emotional distress claims in Georgia. Consequently, the trial court granted the hospital’s renewed motion for summary judgment, resulting in this appeal by Coon.

1. Coon argues that the trial court erred by concluding that Georgia rather than Alabama law should apply in this case based on the public policy exception to the rule of lex loci delicti. We disagree.

Under Georgia law, choice-of-law issues in tort cases are controlled by the rule of lex loci delicti, which requires courts to apply the “substantive law of the place where the tort or wrong occurred.”

The general rule is that the place of wrong, the locus delicti, is the place where the injury sustained was suffered rather than the place where the act was committed, or, as it is sometimes more generally put, it is the place where the last event necessary to make an actor liable for an alleged tort takes place.

Here, pretermitting whether the last event necessary to make the hospital liable for the alleged tort took place in Alabama, Georgia law applies to Coon’s claims against the hospital based on the public policy exception to the rule of lex loci delicti. As aptly stated by the trial court, “there is a significant difference between Alabama and Georgia law on the issue of the impact rule. Georgia follows its impact rule for sound reasons. It is not proper to ignore the rule of law regardless of the compelling emotional considerations.” The policies behind Georgia’s impact rule have been fully developed, and our Supreme Court has rejected invitations to abandon the impact rule in difficult cases. Accordingly, the trial court properly applied Georgia law to this case in granting summary judgment to the hospital.

2. Coon also argues that, under Georgia law, the trial court erred by ruling that she did not suffer pecuniary loss as alleged in her First Amended Complaint. Under Georgia’s impact rule, “recovery for [negligent infliction of] emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” It is undisputed that there was no physical impact to Coon. And although Georgia law permits an exception for certain pecuniary losses, the exception applies only to “a pecuniary loss resulting from an injury to the person which is not physical.” Here, as the trial court concluded, the funeral and burial expenses incurred by Coon were not a direct result of the emotional injury experienced by Coon, but were a result of having a stillborn child. Thus, the funeral and burial expenses are not sufficient to overcome the impact rule requirement.

With respect to the costs associated with disinterment and reburial of the correct stillborn baby — which were not inevitable costs of having a stillborn baby — Coon contends that the collateral source rule bars the hospital from benefitting from its payment (or payments by others) of those costs on her behalf. But, as the trial court observed, these costs were not a direct result of Coon’s mental suffering. To trigger the exception to the impact rule, the pecuniary loss must result from the plaintiff’s injury, i.e., mental suffering, and here the disinterment and reburial costs did not arise from her injury, even though they arose from the hospital’s allegedly negligent conduct. Thus, the trial court properly granted summary judgment to the hospital with regard to Coon’s claims for negligent infliction of emotional distress.

3. As for the intentional infliction of emotional distress claims, Coon

was required to show that (1) the conduct at issue was intentional or reckless; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the wrongful conduct and the emotional distress; and (4) the resulting emotional distress was severe. Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. Moreover, it has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Here, the trial court properly concluded the hospital was also entitled to summary judgment because the hospital’s conduct, while a “tragic mistake,” did not rise to the level of egregiousness or outrageousness necessary to sustain this claim.

4. Finally, the trial court properly granted summary judgment as to Coon’s claim for punitive damages because it is derivative of her other claims which fail as a matter of law.

Accordingly, the trial court correctly granted summary judgment to the hospital.

Judgment affirmed.

Phipps, P. J., and Ray, J., concur. Boggs, J., concurs in judgment only. Andrews, P. J., and McMillian, J., concur fully in Divisions 2, 3 and 4 and specially in Division 1. Barnes, P. J., dissents.

McMlLLIAN, Judge,

concurring specially.

Under Georgia’s long-standing conflict of laws jurisprudence, Georgia common law controls the issues in this case, but not because of the public policy exception to the lex loci delicti rule. Although I agree that the trial court’s order granting summary judgment to the Medical Center should be affirmed, I do not agree with all that is said in Division 1 of the majority opinion, and thus concur specially.

I agree with the majority that we begin our analysis by applying the choice-of-law rule of lex loci delicti, under which the law of the state where the tort is committed governs, and further believe that the trial court correctly concluded that the law of the state of Alabama controls. See Dowis v. Mud Slingers, Inc., 279 Ga. 808, 816 (621 SE2d 413) (2005) (“The rule of lex loci delicti remains the law of Georgia.”). But that determination does not end the inquiry as to what that law is.

Under Georgia’s conflict of laws jurisprudence, once it is determined under the relevant choice-of-law rule that another state’s laws control the action, the court must then look to see whether statutory law from that state forms the basis for the right to recover, in which case, our courts will apply the statutory law as well as the “construction placed upon it by the highest court of such State.” Slaton v. Hall, 168 Ga. 710, 715 (148 SE 741) (1929). See also Motz v. Alropa Corp., 192 Ga. 176, 176 (1) (15 SE2d 237) (1941) (“The rights of the parties to a contract made and to be performed in another State are controlled not only by its pertinent statutes but by the decisions of its appellate courts construing and applying those statutes.”); Lay v. Nashville, Chattanooga & St. Louis R. Co., 131 Ga. 345, 345 (62 SE 189) (1908) (“courts of this State will follow the decisions of a sister State in construing the statutes thereof”); Krogg v. Atlanta & West Point R., 77 Ga. 202, 214 (1886) (“As to the construction which the courts of that State place upon its own statutes or other local laws bearing on the case, we will follow such construction.”).

Our appellate courts have taken a markedly different approach when common law rather than statutory law governs. As explained in Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807 (7 SE2d 737) (1940), if the foreign state was one of the original thirteen American colonies or was derived from the territory encompassed in one of the colonies, “the construction of the common law given by the courts of this State will control, in preference to the construction given by the courts of the State of the contract.” Id. at 811; Motz, 192 Ga. at 176. In other words, our courts will presume that the common law of the other state is the same as the common law in Georgia and thus will apply Georgia law. See Slaton, 168 Ga. at 718 (on rehearing, clarifying that Georgia rule applies); Record Truck Line, Inc. v. Harrison, 109 Ga. App. 653, 658 (3) (137 SE2d 65) (1964) (“The common law as applied by the courts of this State is the common law.”). That is because the “common law is presumed to be the same in all the American States where it prevails. Though courts in the different States may place a different construction upon a principle of common law, that does not change the law. There is still only one right construction.” Slaton, 168 Ga. at 716. And not only are our courts “competent to decide” what the common law is, “but it is its duty to decide, the common law being the same in both jurisdictions.” Krogg, 77 Ga. at 214. See also Risdon Enterprises, Inc. v. Colemill Enterprises, Inc., 172 Ga. App. 902, 904 (2) (324 SE2d 738) (1984) (“Where the rights of parties depend upon South Carolina law, and no statute of that state is pleaded or proved, this court will presume that the common law is to be applied there.”); Green v. Johnson, 71 Ga. App. 777, 778 (32 SE2d 443) (1944) (“Where suit is brought in this State to recover damages for personal injuries sustained in a sister State, which was one of the thirteen original States, the rights of the parties as to the merits of the case as distinguished from procedure are to be determined by the law of such sister State, and where no statute of that [sister] State is pleaded or shown, it will be presumed that the common law is of force there.”). See generally John B. Rees, Jr., Choice of Law in Georgia: Time to Consider a Change?, 34 Mercer L. Rev. 787, 789-90 (1983).

On the other hand, if the other state was never part of the original thirteen colonies or their territories, “[t]here is no presumption that the common law of England exists in such a State” because the state clearly did not “inherit its laws from England.” Nisbet, 189 Ga. at 811. “Under such circumstances, the law of the foreign State must be pleaded, in the absence of which it will be presumed that the law of this State obtains therein.” Id.

Applying these rules here, Coon does not contend that an Alabama statute governs her claims. And, “[w]hile Alabama was not one of the thirteen original colonies [,] it was formed from a part of the territory of Georgia.” Record Truck Line, 109 Ga. App. at 658 (4). Thus, this Court is not bound by the common law as set out by the courts of Alabama, and we must apply Georgia law on recovery of emotional distress damages. See Slaton, 168 Ga. at 714 (in negligence case on behalf of the estate of passenger killed in a car wreck in Alabama, Georgia common law on the degree of care applies); Lay, 131 Ga. at 346 (granting new trial in suit for personal injuries sustained in Alabama because trial court charged on Alabama law even though “substantially the same language may have been used by the Supreme Court of Alabama, in delivering an opinion”); Krogg, 77 Ga. at 214 (refusing to apply Alabama common law on liability of master for injury committed by a fellow servant and applying Georgia law).

For the foregoing reasons, I would affirm the grant of summary judgment by the trial court, albeit for a different reason, and find it unnecessary to reach the question of whether the public policy exception applies.

I am authorized to state that Presiding Judge Andrews joins in this special concurrence.

BARNES, Presiding Judge,

dissenting.

I respectfully dissent because Alabama law applies to plaintiff Coon’s emotional distress claims under the choice-of-law rule of lex loci delicti, and the trial court’s order granting summary judgment to the defendant hospital therefore should be vacated and the case remanded for application of the proper law. Contrary to the majority opinion, the public policy exception to the lex loci delicti rule does not apply here, given that application of Alabama law in a case involving the mishandling of human remains does not seriously contravene the public policy underlying Georgia’s impact rule. And contrary to the special concurrence, the fact that Coon does not point to an Alabama statute to support her claims has no bearing under the circumstances of this case, where the hospital did not raise that issue in the court below, Coon had no notice or opportunity to be heard on the issue, and the trial court never considered the issue as part of its summary judgment ruling.

Given the facts of this case, Alabama rather than Georgia law should apply under the choice-of-law rule of lex loci delicti. Under that rule, courts apply the “substantive law of the place where the tort or wrong occurred.” Intl. Business Machines Corp. v. Kemp, 244 Ga. App. 638, 640 (1) (a) (636 SE2d 303) (2000). The place where the tort or wrong occurred “is the place where the injury sustained was suffered rather than the place where the act was committed,” or put a different way, “the place where the last event necessary to make an actor liable for an alleged tort takes place.” (Citation and punctuation omitted.) Risdon Enterprises v. Colemill Enterprises, 172 Ga. App. 902, 903 (1) (324 SE2d 738) (1984).

The hospital’s mishandling of the remains of Coon’s stillborn baby occurred in Georgia, but Coon was at her home in Alabama when she received the telephone call from the hospital in which she first learned of the mistake. Before that telephone call, Coon could not have logically suffered emotional injury as a result of the hospital’s alleged tortious conduct because she had been unaware of what had occurred. It was at that point, upon finding out that the hospital never released her stillborn baby to the Alabama funeral home, that she had buried the wrong baby, and that she was going to have to endure another burial, that Coon began suffering emotional distress related to the hospital’s mishandling of the remains. In addition, the initial funeral service and the burial, exhumation, and second burial all occurred in Alabama. Based on this record, Coon’s injury clearly was sustained in Alabama; therefore, the “last event” related to her emotional distress claim occurred in that state, and Alabama rather than Georgia law should apply under the rule of lex loci delicti. See Intl. Business Machines Corp., 244 Ga. App. at 641 (1) (a).

As the majority opinion points out, application of the rule of lex loci delicti is subject to a public policy exception. See Alexander v. Gen. Motors Corp., 267 Ga. 339, 340-341 (478 SE2d 123) (1996); Carroll Fulmer Logistics Corp. v. Hines, 309 Ga. App. 695, 696-698 (710 SE2d 888) (2011); Karimi v. Crowley, 172 Ga. App. 761, 762-763 (324 SE2d 583) (1984). “Under this exception, even if the tort occurred in another state, a Georgia court will not as a matter of courtesy or comity apply the other state’s substantive law if the law of the other state contravenes the public policy of Georgia.” (Citations and punctuation omitted.) Carroll Fulmer Logistics Corp., 309 Ga. App. at 696. See Alexander, 267 Ga. at 340. But the public policy exception applies only if the law of the other state is so “radically dissimilar to anything existing in our own system of jurisprudence” that it would “seriously contravene” the policy embodied in Georgia law. Southern R. Co. v. Decker, 5 Ga. App. 21, 25 (1), 29 (2) (62 SE 678) (1908).

As the “radically dissimilar” requirement suggests, the fact that the law of another state differs in some respect from our own law does not mean that the law of the other state necessarily violates the public policy of Georgia; otherwise, a choice of law analysis would never be necessary, and the rule of lex loci delicti would be rendered moot. See Southern R. Co., 5 Ga. App. at 22 (2) (holding that the application of Alabama law would not contravene Georgia public policy even though the measure of damages under Alabama law was “dissimilar to the measure prescribed in like cases by the statutes of this state”) (syllabus by the court). Moreover, there is a presumption in favor of applying the lex loci delicti rule, “and the burden rests upon the party objecting to show that the enforcement of the proper law would be inconsistent with the domestic policy” of this state. (Citation and punctuation omitted.) Id. at 29 (2).

The majority opinion concludes that application of Alabama law in this case would conflict with Georgia public policy because Alabama, in contrast to Georgia, does not apply an impact rule in emotional distress cases involving the negligent mishandling of human remains. But the fact that the emotional distress laws of Alabama and Georgia differ in some respect does not demonstrate, without more, that Georgia public policy would be undermined by applying Alabama law. Indeed, the majority does not specifically identify or discuss any of the public policy reasons for Georgia’s impact rule or explain how application of Alabama law in this case would seriously contravene them. When the public policy reasons for the impact rule are identified and considered, however, it is clear that application of Alabama law in a case like the present one would not seriously contravene Georgia public policy.

Under Georgia’s impact rule, “[i]n a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” (Citation and punctuation omitted.) Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 584 (I) (533 SE2d 82) (2000). In Lee, our Supreme Court identified the three public policy reasons underlying Georgia’s impact rule:

First, there is the fear, that absent impact, there will be a flood of litigation of claims for emotional distress. Second, is the concern for fraudulent claims. Third, there is the perception that, absent impact, there would be difficulty in proving the causal connection between the defendant’s negligent conduct and claimed damages of emotional distress.

272 Ga. at 587 (II). Where these three public policy concerns are not present, our Supreme Court and this Court have recognized certain limited exceptions to the application of the impact rule. See Lee, id. at 588 (III) (declining to apply the impact rule where a parent physically injured in an automobile collision sought to recover for emotional distress caused by witnessing the death of her child in the collision); Bruscato v. O’Brien, 307 Ga. App. 452, 457-458 (1) (705 SE2d 275) (2010) (declining to apply the impact rule to a medical malpractice claim).

These three public policy concerns are likewise not present in this case, where the narrow issue is the application of Alabama law in a Georgia court to a claim for the mishandling of human remains. As Lee makes clear, the impact rule is designed to safeguard Georgia courts from a flood of amorphous, potentially fraudulent emotional distress claims by injecting an objective benchmark (physical injury or pecuniary loss) into the analysis. But there is no risk of a flood of litigation in Georgia by simply allowing a plaintiff to pursue an emotional distress claim under Alabama law in the limited context where the lex loci delicti rule makes that law applicable in a Georgia court. Thus, the important gate-keeping function that the impact rule serves will not be undermined by allowing the present case to proceed under Alabama law. Furthermore, concerns about avoiding fraudulent claims, and about proving the causal connection between the alleged negligent conduct and the claimed emotional distress, are far less pronounced in the unusual and tragic circumstance where a child’s remains have been mishandled — a circumstance that virtually everyone would agree would cause emotional suffering to the parent. Consequently, application of Alabama law in this context would not seriously contravene the public policy concerns that underlie Georgia’s impact rule, and the public policy exception to the lex loci delicti rule therefore is inapplicable. Cf. Dawkins v. State, 412 SE2d 407, 408 (S.C. 1991) (application of Georgia’s impact rule in a South Carolina court would not violate the public policy exception to the rule of lex loci delicti).

Because Georgia’s public policy exception to the lex loci delicti rule does not apply in this case, the trial court erred by relying upon Georgia law rather than Alabama law in evaluating Coon’s emotional distress claims on summary judgment. Accordingly, this Court should vacate the trial court’s grant of summary judgment in favor of the hospital and remand for the trial court to consider in the first instance whether the hospital is entitled to summary judgment on Coon’s emotional distress claims under Alabama law. See City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002); United HealthCare of Ga. v. Ga. Dept. of Community Health, 293 Ga. App. 84, 92-93 (2) (d) (666 SE2d 472) (2008).

The allegedly material distinction drawn by the special concurrence between statutory and common law claims for purposes of Georgia’s choice-of-law rules should not change the outcome here. The special concurrence would affirm the trial court’s grant of summary judgment to the hospital under the “right for any reason” rule because “Coon does not contend that an Alabama statute governs her claims” and Georgia courts allegedly are not bound by Alabama courts’ construction of the common law of emotional distress. But this argument was not presented in the hospital’s motion for summary judgment before the trial court, the issue was not raised by either party on appeal, and Coon has had no opportunity to respond to the argument or explain whether there are any Alabama statutes that bear on her claims.

This is a court for the review and correction of errors committed in the trial court, and an argument that was not made below will not be considered on appeal. Although, as a matter of judicial economy, we will affirm a grant of summary judgment under the “right for any reason” rule, we will generally only do so when the judgment may be sustained upon a legal basis apparent from the record and which was fairly presented in the court below.

Decided November 20, 2015

Reconsideration denied December 15, 2015

E Houser Pugh; Beasley, Allen, Crow, Methvin, Portis & Miles, Archie I. Grubb II, for appellant.

Hall Booth Smith, John E. Hall, Jr., W. Scott Henwood, Mark W. Wortham, Paul D. Ivey, Jr., Lauren K. Dimitri, for appellee.

(Citations and punctuation omitted; emphasis supplied.) Bullington v. Blakely Crop Hail, 294 Ga. App. 147, 152 (3) (668 SE2d 732) (2008).

Because nothing in the record before us shows that the argument raised sua sponte by the special concurrence was fairly presented in the court below, we should not consider whether to affirm the trial court on that alternative basis. See Bullington, 294 Ga. App. at 152 (3); Grizzle v. Norsworthy, 292 Ga. App. 303, 305 (1) (b) (664 SE2d 296) (2008). Compare Cox v. Edelson, 243 Ga. App. 5, 7-8 (1) (530 SE2d 250) (2000) (summary judgment will not be affirmed as “right for any reason” based on legal argument never raised below), with Abellera v. Williamson, 274 Ga. 324, 327 (2) (553 SE2d 806) (2001) (appellate court may determine whether the trial court’s grant of summary judgment was right for an alternative reason that was raised in the court below but not addressed by the trial court in its order). Any other result deprives Coon of a “full and fair notice and opportunity to respond prior to entry of summary judgment.” (Citations and punctuation omitted.) Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995).

For these combined reasons, the emotional distress law of Alabama applies in this case, necessitating that we vacate the trial court’s summary judgment order and remand for application of that law. Because the majority opinion and the special concurrence conclude otherwise, I must respectfully dissent.

       OCGA § 9-11-56 (c).

        Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012).

       The funeral home director later testified that when he received the stillborn baby from the hospital, he had chosen not to take the baby out of the cadaver bag or undress her because of the state of decomposition.

       Columbus Regional Healthcare System, Inc. was named as a defendant in the original complaint but later was dismissed from the case.

         Intl. Business Machines Corp. v. Kemp, 244 Ga. App. 638, 640 (1) (a) (536 SE2d 303) (2000). See Dowis v. Mud Slingers, Inc., 279 Ga. 808, 809, 816 (621 SE2d 413) (2005).

       (Punctuation omitted.) Risdon Enterprises v. Colemill Enterprises, 172 Ga. App. 902, 903 (1) (324 SE2d 738) (1984). See Kemp, 244 Ga. App. at 640-641 (1) (a) (noting that under the lex loci delicti rule, “the place of the wrong is where [the] injury is sustained”).

       See Kemp, 244 Ga. App. at 641 (1) (a).

       Under the public policy exception, we will not apply the law of the place where the injury was sustained if it would conflict with Georgia’s public policy. Cf. Alexander v. Gen. Motors Corp., 267 Ga. 339, 340-341 (478 SE2d 123) (1996) (applying Georgia law rather than Virginia law even though injury occurred in Virginia because Virginia products liability law violated Georgia public policy).

       See, e.g., Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 587-588 (II) (533 SE2d 82) (2000) (discussing policy implications of the impact rule and declining to abandon it).

       See Alexander, 267 Ga. at 341 (applying public policy exception because the lex loci was “radically dissimilar” from Georgia).

       That pleading alleged that Coon suffered “pecuniary loss, mental injury, anguish, and severe emotional distress.”

       (Punctuation omitted.) Lee, 272 Ga. at 584 (I), quoting Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992).

       (Emphasis in original; punctuation omitted.) Ob-Gyn Assoc. of Albany v. Littleton, 259 Ga. 663, 666 (2) (B) (386 SE2d 146) (1989), overruled in part on other grounds by Lee, 272 Ga. at 588 (III), n. 8.

       See generally Candler Hosp. v. Dent, 228 Ga. App. 421 (491 SE2d 868) (1997) (“The common law rule in Georgia bars the defendant from presenting any evidence as to payments of medical, hospital, disability income, or other expenses of a tortious injury paid for by a plaintiff, governmental entity, or third party and taking credit towards the defendant’s liability in damages for such payments, because a tortfeasor is not allowed to benefit by its wrongful conduct or mitigate its liability by collateral sources provided by others.”).

       See Littleton, 259 Ga. at 666 (2) (B). Compare Nationwide Mut. Fire Ins. Co. v. Lam, 248 Ga. App. 134, 138 (2) (546 SE2d283) (2001) (plaintiff’s mental injury resulted in hospitalization for ten days and medical expenses totaling more than $12,000), questioned by Oliver v. McDade, 328 Ga. App. 368, 370 (2), n. 5 (762 SE2d 96) (2014), which was vacated in part by Oliver v. McDade, 297 Ga. 66 (772 SE2d 701) (2015).

       (Citation and punctuation omitted.) Canziani v. Visiting Nurse Health Systems, 271 Ga. App. 677, 679 (1) (610 SE2d 660) (2005).

       See id.

       See Veatch v. Aurora Loan Svcs., 331 Ga. App. 597, 602 (2) (771 SE2d 241) (2015).

       I concur fully to Divisions 2, 3 and 4 of the majority opinion.

       Some of our case law alternatively spells this term as “lex loci delecti.” See, e.g., Bailey v. Cottrell, Inc., 313 Ga. App. 371 (721 SE2d 571) (2011).

       In addition to lex loci delicti for tort cases, Georgia applies the traditional rule of lex loci contractus in contract cases. See Gen. Telephone Co. of Southeast v. Trimm, 252 Ga. 95, 95 (311 SE2d 460) (1984) (“Under this approach, contracts are to be governed as to their nature, validity, and interpretation hy the law of the place where they were made, except where it appears from the contract itself that it is to he performed in a State other than that in which it was made, in which case . . . the laws of that sister State will be applied.”) (citation and punctuation omitted).

       I recognize that these presumptions may seem anachronistic and peculiar, but that is the law as set out by our Supreme Court, which has not been overruled. Notably, as recently as 1984, the Supreme Court cited Nisbet favorably and quoted a Court of Appeals case describing Nisbet as “the leading Georgia case explanatory of the law of lex loci contractus.” (Citation and punctuation omitted.) Trimm, 252 Ga. at 96. And federal courts in the Eleventh Circuit, in applying Georgia’s conflict-of-law rules, have likewise found that these presumptions remain good law. See, e.g., Frank Briscoe Co., Inc. v. Ga. Sprinkler Co., 713 F2d 1500, 1503 (11th Cir. 1983) (“When no statute is involved, Georgia courts apply the common law as developed in Georgia rather than foreign case law.”); In re Tri-State Crematory Litigation, 215 FRD 660, 677 (N.D. Ga. 2003) (“The Court, bound by case law from the Supreme Court of Georgia and the United States Court of Appeals for the Eleventh Circuit, finds that if no foreign statutes are ‘involved,’ then the Court must apply Georgia law.”); Briggs & Stratton Corp. v. Royal Globe Ins. Co., 64 FSupp.2d 1340, 1343 (M.D. Ga. 1999) (collecting cases decided since Frank Briscoe and concluding that Nisbet remains good law).

       The dissent asserts that the right for any reason rule does not apply in this instance because the specific argument was not made below. However, it is well established that “[w]e will affirm a grant of summary judgment if it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.” (Citation and punctuation omitted; emphasis supplied.) Godwin v. Mizpah Farms, LLLP, 330 Ga. App. 31, 38, n.7 (766 SE2d 497) (2014). The hospital raised the issue that under the applicable conflict of law principle of lex loci delicti, Georgia law applied, and Coon had a fair opportunity to respond. This Court should not be bound by the parties’ inaccurate and incomplete application of the law.


author: McFADDEN, Judge.

text:
    A15A0931.
    WE CARE TRANSPORTATION, INC. et al. v. BRANCH BANKING AND TRUST COMPANY et al.
    (780 SE2d 782)
   McFADDEN, Judge.

On the eve of a foreclosure sale, borrower We Care Transportation, Inc. (“We Care”) and guarantor Gregory Hadley (“Hadley”) brought an action for various claims against lender Branch Banking and Trust Company (“BB&T”) and its lawyers, Quirk & Quirk, LLC (“Quirk”). On appeal from the trial court’s grant of summary judgment to BB&T and Quirk, We Care and Hadley filed an initial, untimely appellate brief containing only two arguments: that summary judgment was improper because discovery “would have shown” genuine issues of material fact (despite the fact that the discovery period had ended) and that “[accepting the allegations of the complaint as true ... the trial court could not say definitely that no set of facts establishing a claim... could not be provenf.]” These arguments are frivolous. They provide no basis for reversing a grant of summary judgment.

Indeed those arguments reflect a recurring pattern of misconduct on the part of appellants’ counsel, Grady Roberts: misuse of notice pleading. From this case and from other appeals filed with this court, it appears that Roberts has adopted a practice of deploying boilerplate claims and arguments with little or no effort to adjust them to the evidence or to the procedural posture of the case and little or no effort to investigate or support them. Efforts by opposing counsel to test or challenge them are met either with a bald assertion that the claim should be allowed to go forward on the basis of the possibility that — at some future time — supporting evidence or analysis might be forthcoming or with substitution of new and different unsubstantiated boilerplate claims and arguments. These tactics put an undue burden on the courts and on opposing counsel. And they offer no possible benefit to his clients, other than the illicit benefit of delay and harassment.

Accordingly, we affirm the trial court’s judgment and, pursuant to Court of Appeals Rule 15 (b), impose as sanctions the maximum penalty available in this case, a $2,500 penalty, upon Roberts (but not upon his clients, We Care and Hadley).

1. Facts and procedural history.

Viewed in the light most favorable to We Care and Hadley, as nonmovants on summary judgment, see Wilson v. Mountain Valley Community Bank, 328 Ga. App. 650 (1) (759 SE2d 921) (2014), the evidence of record shows that We Care borrowed $350,000 from BB&T in October 2004 to purchase property. On behalf of We Care, Hadley (its owner and president) executed a promissory note and a security deed in favor of BB&T. The security deed gave BB&T power of sale of the property upon default. Hadley also executed a personal guaranty of the loan. We Care and BB&T later modified the terms of the loan, and Hadley executed a new promissory note and personal guaranty reflecting that modification.

By late 2012, We Care had defaulted on the loan, missing several loan payments and becoming delinquent on property taxes. On December 14, 2012, BB&T sent We Care a notice of default. In early 2013, Hadley discussed modifying the loan with BB&T, but they were not able to reach an agreement to modify it. On June 27, 2013, Quirk, on behalf of BB&T, sent We Care and Hadley a notice that BB&T was accelerating the loan as allowed under the terms of the promissory note, and on September 25, 2013, Quirk, on behalf of BB&T, sent We Care and Hadley another acceleration notice and a notice of foreclosure sale, along with a copy of the notice of sale under power to be advertised in the legal organ of the county where the property was located. The notice stated that the foreclosure sale would occur on November 5, 2013.

On November 4, 2013, We Care and Hadley filed this lawsuit. When the trial court ordered them to describe certain of their claims with greater particularity, they amended their complaint to drop several causes of action and to add others. Under their amended complaint, they alleged three causes of action: wrongful foreclosure against BB&T and Quirk, breach of contract against BB&T, and interference with contractual relations against Quirk. They premised the claims on their allegation that BB&T and Quirk had acted to foreclose on the property without first providing proper notice of acceleration of the loan, asserting that business loan statements that BB&T sent to We Care in September and October 2013 had the effect of rescinding the prior acceleration notices.

The trial court ordered that the parties complete discovery and file any discovery motions by July 31, 2014. The record reflects that the only discovery served by We Care and Hadley upon BB&T and Quirk was a document request. The record is silent as to BB&T’s and Quirk’s response to the request; We Care and Hadley took no steps to compel a response. On August 22, 2014, after the close of discovery, BB&T and Quirk moved for summary judgment. We Care and Hadley, in their response brief, addressed among other things, several causes of action that either were no longer part of the case or had never been part of the case. The trial court granted summary judgment to BB&T and Quirk.

On appeal, We Care and Hadley obtained an extension of time to file their appellate brief but did not meet this deadline, filing their appellate brief only after BB&T and Quirk moved to dismiss the appeal. Their brief did not comply with several of this court’s rules; it did not contain any citations to the record and, in the “standard of review” section, it set forth the standard of review for the grant of a supersedeas bond. In asking us to dismiss the appeal, BB&T and Quirk argued that We Care and Hadley “appear to be using the legal system to remain in the premises for as long as possible rather than to pursue legitimate claims.” We declined to dismiss the appeal but ordered BB&T and Quirk to file a supplemental brief that addressed whether sanctions should be imposed on either We Care and Hadley or their counsel, Roberts, and that pointed out record evidence supporting their contention that We Care and Hadley were misusing the legal system. After BB&T and Quirk filed their supplemental brief, We Care and Hadley filed a responsive supplemental brief that contained arguments in support of their appeal not raised in their initial appellate brief and that provided some record citations but still made many factual assertions without citing the record.

2. Summary judgment.

To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law.” Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted). As defendants who do not bear the burden of proof, BB&T and Quirk “may do this by either presenting evidence negating an essential element of the plaintiffs’] claims or establishing from the record an absence of evidence to support such claims.” Id. (citation and punctuation omitted).

In support of their motion, BB&T and Quirk presented evidence that We Care had executed a security deed giving BB&T a secured interest in the property and power of sale should We Care default on its loan obligations; that We Care had in fact defaulted on the loan; and that, pursuant to the terms of the security deed and applicable statutes, BB&T had given We Care notice of default, then notice of acceleration of the loan, and finally notice of the foreclosure sale. See generally OCGA § 44-14-162.2 (setting forth statutory requirements for sales made on foreclosure under power of sale). This evidence discharged their initial burden to show that they were entitled to summary judgment and shifted the burden to We Care and Hadley to “point to specific evidence giving rise to a triable issue.” Cowart, 287 Ga. at 623 (1) (a) (citation and punctuation omitted).

In their initial appellate brief, however, We Care and Hadley did not argue that they had pointed to evidence giving rise to a triable issue, nor did they cite to any such evidence in the record. Instead, they made two arguments that were irrelevant to an appeal from a grant of summary judgment.

First, they argued that the trial court erred in granting summary judgment because “[t]here were several issues which required discovery to settle [,]” ignoring the fact that discovery had already closed in this case. If We Care and Hadley believed that discovery could reveal genuine issues of material fact, they had the obligation to conduct discovery and to move to compel discovery or otherwise resolve any discovery disputes during the period established by the trial court for that purpose. Their failure to do so is not a ground for reversing the trial court’s grant of summary judgment. See Corry v. Robinson, 207 Ga. App. 167, 170 (3) (427 SE2d 507) (1993) (party “cannot fail to exercise his legal remedies to compel discovery and/or to file a proper motion to request additional time to complete discovery,” then claim that trial court erred in granting summary judgment despite incomplete discovery).

Second, We Care and Hadley argued that BB&T and Quirk had not disproved the allegations of their complaint which, if accepted as true, supported their claims. This argument would have been appropriate in opposition to a motion to dismiss for failure to state a claim. See generally Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014) (describing standard of appellate review for motion to dismiss action for failure to state a claim). It has no bearing whatsoever at the summary judgment stage.

In reviewing the trial court’s grant of summary judgment, we do not consider the arguments that We Care and Hadley raised for the first time in their supplemental brief on the issue of the propriety of sanctions, because they failed to raise these arguments in their initial appellate brief. See Advanced Technology Svcs. v. KM Docs, 330 Ga. App. 188, 189, n. 2 (767 SE2d 821) (2014) (declining to consider argument that appellant did not make in initial appellate brief and raised for first time in reply brief); Vann v. Finley, 313 Ga. App. 153, 154, n. 2 (721 SE2d 156) (2011) (same). (Nevertheless, we note that our review of the record — constrained as it is by counsel’s failure to conduct discovery — does not reveal to us any meritorious claims.) Because We Care and Hadley failed in their initial appellate brief to make any argument requiring the reversal of the trial court’s grant of summary judgment to BB&T and Quirk, we affirm.

3. Frivolous appeal sanctions.

Further, we find, sua sponte, that this appeal is frivolous and, therefore, that sanctions against counsel for We Care and Hadley — Grady Roberts — are appropriate. See Court of Appeals Rule 15 (b) (permitting court, “with or without motion, [to] impose a penalty not to exceed $2,500.00 against any party and/or party’s counsel in any civil case in which there is a direct appeal... which is determined to be frivolous”). We reach this conclusion for several reasons. Roberts failed to assert any argument in the initial appellate brief that conceivably could have supported the claim that the trial court erred in granting summary judgment. The arguments in the initial brief had no relevance to the procedural posture of the case and ignored basic, well-established Georgia law on the burdens of the parties on summary judgment. It is utterly frivolous to argue that a defendant is not entitled to summary judgment because the allegations of the plaintiff’s complaint might have been supported by discovery that was not taken, that the plaintiff made no effort to take, and that the plaintiff no longer has any legal right to take. The initial appellate brief was deficient in other ways, as well. It was untimely. It did not contain record citations. It set forth a standard of review for a type of ruling not at issue in the case. Only after the specter of sanctions was raised did Roberts make the effort in a supplemental brief to articulate some substantive, relevant arguments — but even in that brief he frequently failed to provide citations to the record.

Earlier filings and actions by We Care and Hadley in this case also suggest that Roberts’s litigation efforts have been brought not to resolve justiciable issues, but for delay and harassment. The complaint initially accused BB&T and Quirk of fraudulent conduct; these claims appear to have been frivolous because, when required by the trial court to provide a more definite statement about them, Roberts instead dropped the claims from the amended complaint. Roberts conducted minimal discovery: he served only one request for production of documents and then failed to make any discernable use of the material produced. He has made no showing that the response to that request was in any way deficient: he did not move to compel or otherwise act to obtain responses. Roberts made several arguments before the trial court in opposition to summary judgment that simply had nothing to do with the causes of action currently in the case.

This misconduct is part of a pattern. From a review of appeals filed by Roberts in this court we observe that he has repeatedly engaged in similar misconduct in his representation of other clients. In those cases Roberts repeatedly asserts the same meritless arguments and commits the same procedural defaults. So far this year Roberts has filed with this court more than sixty-five cases, nearly one-third of which were ultimately dismissed. Most of the applications for discretionary appeal that Roberts filed this year we either dismissed as untimely or transferred to state or superior court. See Handler v. Hulsey, 199 Ga. App. 751, 751 (406 SE2d 225) (1991) (“The only avenue of appeal available from the magistrate court judgment is provided by OCGA § 15-10-41 (b) (1), which allows for a de novo appeal to the state or superior court.”). In the dismissal or transfer orders, this court repeatedly explained to Roberts the problems with the applications, yet he has continued to file similarly flawed applications.

And Roberts has repeatedly filed briefs and motions that, as here, make arguments unrelated to the issues on appeal. For example, in a recent appeal we affirmed in an unpublished opinion the trial court’s dismissal of a wrongful foreclosure action for failure to appear and prosecute, noting that the appellants — represented by Roberts ■— had not even argued that the trial court erred in dismissing on those grounds but instead had argued that the trial court erred in dismissing the complaint for failure to state a claim (something the trial court did not do). See Reaves v. Residential Credit Solutions, 331 Ga. App. XXVI (March 6, 2015) (unpublished).

We are particularly disturbed that many of the actions brought by Roberts appear to include frivolous claims of misconduct against attorneys representing clients in legitimate foreclosures. This case initially included claims of fraud against Quirk, but Roberts dropped that claim when called upon to substantiate it. We have recognized that allegations of misconduct against opposing counsel are sometimes appropriate, but we have warned that they should not be made lightly or carelessly. As to such allegations we have written, in the appellate context:

Notwithstanding [Court of Appeals] Rule 10, [which forbids remarks that are “discourteous or disparaging to any judge, opposing counsel, or any court,”] we recognize that cases arise where counsel must show that the issue is not merely error but misconduct. In such cases counsel should take particular care to summarize and cite the record accurately and to use a tone that is respectful and appropriate to the seriousness of the issues.

Murphy v. Murphy, 328 Ga. App. 767, 774 (4) (759 SE2d 909) (2014). As in Murphy, “[s]uch care and respect are wholly absent from [Roberts’s] brieffs]” in this case. Id.

For these reasons, we share the concern expressed by BB&T and Quirk that Roberts is misusing the legal system in this case to prolong foreclosure proceedings, just as he appears to be misusing the legal system in pursuing other appeals. It may be that We Care and Hadley’s case has some merit, just as it may be that other appeals filed by Roberts on behalf of other clients have some merit. But in this case Roberts has failed to convey any such merit within the framework established by Georgia’s laws and this court’s rules.

Because we find this appeal to be frivolous, under Court of Appeals Rule 15 Roberts (but not We Care and Hadley themselves) shall pay a penalty of $2,500. This penalty shall constitute a money judgment of $1,250 in favor of BB&T and $1,250 in favor of Quirk against Roberts, and the trial court is directed to enter judgments in such amounts upon the return of the remittitur in this case. Court of Appeals Rule 15 (c); Wieland v. Wieland, 216 Ga. App. 417, 418 (3) (454 SE2d 613) (1995).

We note that Roberts currently has 17 cases pending in this court. He would be well advised to diligently and expeditiously examine them to determine whether they are similarly frivolous.

Decided November 5, 2015

Reconsideration denied December 15, 2015.

Roberts Law, Grady A. Roberts III, for appellants.

Quirk & Quirk, Kevin E. Quirk, for appellees.

Judgment affirmed with direction.

Doyle, C. J., Andrews, P. J., Barnes, P. J., Ellington, P J., Phipps, P. J., and Miller, Dillard, Boggs, Ray, Branch and McMillian, JJ., concur.


author: McFadden, Judge.

text:
    A15A1092.
    In the Interest of D. V. H., a child.
    (779 SE2d 122)
   McFadden, Judge.

This appeal presents an issue of first impression under Georgia’s new Juvenile Code: If the state fails to file a delinquency petition within 30 days after the filing of a complaint against a child, as required by OCGA § 15-11-521 (b) (a provision of the new Juvenile Code), does the filing of a new complaint reset the time period for filing the delinquency petition? We conclude that a new complaint that merely reasserts the same factual circumstances as the first complaint does not reset the time period. Accordingly, we affirm the juvenile court’s dismissal of the untimely delinquency petitions against D. V. H. in this case.

Under the new Juvenile Code, a complaint is “the initial document setting out the circumstances that resulted in a child being brought before the court.” OCGA § 15-11-2 (14). This definition encompasses the complaints in this case, which took the form of police reports signed by investigating officers that were filed with the juvenile court. In contrast, a petition alleging delinquency “shall be filed by an attorney as set forth in Code Section 15-18-6.1.” OCGA § 15-11-520. A petition also shall be verified and shall set forth plainly and with particularity specific information set forth in OCGA § 15-11-522.

In a prior proceeding, the juvenile court dismissed two delinquency petitions against D. V. H. because the state had filed the petitions more than 30 days after the filing of complaints alleging that D. V. H. had violated various criminal laws. The state had moved the juvenile court to extend this 30-day period pursuant to OCGA § 15-11-521 (b), which permits the juvenile court to grant such an extension upon a showing of good cause and notice to all of the parties, but the juvenile court denied the state’s motion.

New complaints then were filed regarding the same factual circumstances as in the initial complaints. Within 30 days of the filing of the new complaints, the state filed the delinquency petitions at issue in this appeal. The juvenile court granted D. V. H.’s motion to dismiss the new delinquency petitions, holding that “the time limits in the [j]uvenile [c]ourts of this [s]tate must be strictly construed and . . . refiling a case under a new number to reset the time limits circumvents the purpose of the time limits [.]”

The state argues that the juvenile court erred in his ruling “by disregarding the well-established body of law on multiple criminal charging instruments, double jeopardy, and the effect, if any, of a dismissal.” In support of the argument that the juvenile court should have considered criminal law in ruling on this issue of juvenile court procedure, the state cites OCGA § 15-11-4 (1), which provides that “[w]here procedures are not provided in this chapter [Chapter 11 of the new Juvenile Code], the court shall proceed in accordance with... Title 17 [the criminal procedure title] in a delinquency proceeding[.]”

Chapter 11 of the new Juvenile Code, however, provides the necessary procedures for determining the effect of the second set of complaints filed in this case. OCGA § 15-11-521 (b) both sets the time limitations for filing delinquency petitions and provides a mechanism by which the state can seek an extension of those limitations. It pertinently provides that where, as here, “a child is not in detention prior to adjudication, a petition alleging delinquency shall be filed within 30 days of the filing of the complaint alleging violation of a criminal law” and that, “[u]pon a showing of good cause and notice to all parties, the court may grant an extension of time for filing a petition alleging delinquency.” OCGA § 15-11-521 (b). And as explained above, OCGA § 15-11-2 (14) defines the “complaint” as “the initial document setting out the circumstances that resulted in a child being brought before the court.” (Emphasis supplied.) Read together, these Code sections required the state to file the delinquency petition against D. V. H. within 30 days after the filing of such an initial document (here, the initial complaints against him). The subsequent complaints against D. V. H. did not reset this 30-day period, because they merely reasserted the same circumstances set forth in the initial complaints and thus were not “complaints” as defined by the Juvenile Code.

In considering other time limitations within the Juvenile Code, we have recognized that “the legislature intended to set time limitations for the [s]tate to act” and we have refused to construe the Code in a manner that would “eviscerate[ ]” those time limitations. In the Interest of C. B., 313 Ga. App. 778, 781 (723 SE2d 21) (2012). The same consideration applies here. Allowing the state to file new complaints to restart the clock after missing the deadline for filing the delinquency petitions and failing to convince the juvenile court to grant it an extension of that deadline would eviscerate the statutory time limitation for such petitions. Because the state did not obtain an extension and the delinquency petitions at issue in this appeal were filed more than 30 days after the filing of the complaints, as that term is defined by OCGA § 15-11-2 (14), the petitions were untimely under OCGA § 15-11-521 (b). Accordingly, the juvenile court did not err in dismissing the petitions.

Decided November 13, 2015

Reconsideration denied December 15, 2015

FredricD. Bright, District Attorney, Joseph M. McKinnon, Assistant District Attorney, for appellant.

Bethany A. Begnaud, for appellee.

Judgment affirmed.

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

On Motion for Reconsideration.

The state has moved for reconsideration, arguing that our recent opinion in In the Interest of M. D. H., 334 Ga. App. 394 (779 SE2d 433) (2015), compels a different result. We disagree. The holding in In the Interest of M. D. H. arises from a significantly different procedural posture, where the juvenile court, in essence, allowed the state to file a late petition. Unlike here, In the Interest ofM. D. H. did not involve a juvenile court that had rejected the state’s attempt to obtain an extension, as the plain language of OCGA § 15-11-521 (b) permits a juvenile court to do. See OCGA § 15-11-521 (b) (“Upon a showing of good cause and notice to all parties, the court may grant an extension of time for filing a petition alleging delinquency. The court shall issue a written order reciting the facts justifying any extension.”) (emphasis supplied). Nor did In the Interest ofM. D. H. concern an attempt by the state, after having its request for an extension rejected, to get around the expiration of the statute’s 30-day period by attempting to file a new complaint. While there is some tension between the analysis in this case and in In the Interest of M. D. H., given the distinctions between the holdings of those two decisions, we do not view In the Interest ofM. D. H. to compel a juvenile court to accept a late petition when the court has determined that an extension for filing the petition was unjustified.

Motion for reconsideration denied.