author: Dillard, Judge.

text:
    A16A0614.
    CREAMER v. THE STATE.
    (788 SE2d 69)
   Dillard, Judge.

We granted Tyrone Creamer’s application for interlocutory review of the trial court’s denial of his motion to suppress evidence that was discovered during a search of his home. In two separate enumerations of error, Creamer argues that there was insufficient probable cause to support the issuance of the warrant to search his home. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the trial court’s ruling, the evidence shows that on March 11, 2015, an investigator with the Atlanta Police Department’s narcotics unit received an anonymous tip that a man was selling marijuana from a residence located at 3248 Ward Drive (the “Ward Drive residence”). Later that same day, a confidential informant (“Cl”), who was “very reliable” and who had “helped the City of Atlanta’s narcotics unit on numerous occasions resulting in numerous successful narcotics related search warrants and arrests,” went to the Ward Drive residence to attempt to purchase marijuana. Upon her arrival, the Cl walked up to the door of the residence and asked the man who answered the door (later identified as “Dred”) for $40 worth of marijuana. Dred advised the Cl that he had left the marijuana in his car, and he then walked across the street to a silver vehicle that was parked directly in front of the residence to retrieve it. When he returned from the car, the man sold the Cl approximately .272 grams of marijuana for $40.

On March 19, 2015, the Cl went to the Ward Drive residence a second time to purchase marijuana. Upon arriving at the residence, the Cl was again greeted by Dred, who agreed to sell her the drugs. As with the first transaction, Dred “stepped off the porch” of the residence, walked across the street, and retrieved the marijuana from the same silver car. Dred then returned to the front porch of the Ward Drive residence and sold the Cl 1.9 grams of marijuana for $20.

Based on the foregoing, the investigator applied for and obtained a search warrant for the Ward Drive residence. And when the investigator and his team arrived to execute the search warrant, they encountered Creamer, who indicated that he lived in the basement of the home. During the ensuing search of the basement, the investigator discovered approximately 40.2 grams of marijuana; a digital scale; multiple packs of small bags, which are commonly used to package and sell narcotics; and mail addressed to Creamer.

Thereafter, Creamer was charged, via accusation, with possession of marijuana with intent to distribute. Prior to trial, Creamer filed a motion to suppress the evidence discovered at the Ward Drive residence, arguing that there was insufficient probable cause to support the issuance of the search warrant. And after a hearing on the matter, the trial court denied the motion in a summary order. Creamer then filed a petition for a certificate of immediate review, which the trial court granted. We then granted his application for an interlocutory appeal. This appeal follows.

At the outset, we note that in considering a trial court’s denial of a motion to suppress, we construe the evidence “in favor of the court’s ruling, and we review de novo the trial court’s application of the law to undisputed facts.” Further, in accordance with the Fourth Amendment to the United States Constitution, a search warrant in Georgia may issue only upon “facts sufficient to show probable cause that a crime is being committed or has been committed.” And in determining whether probable cause exists, the judge issuing the warrant is required simply to make a

practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Further, in reviewing the validity of a search warrant, this Court is charged with “ensuring—considering the totality of the circumstances and giving substantial deference to the issuing judge’s decision —that the judge had a ‘substantial basis’ for concluding that probable cause existed.” Indeed, even doubtful cases should be “resolved in favor of upholding a magistrate’s determination that a warrant is proper.” Bearing these guiding principles in mind, we turn now to Creamer’s specific claims of error.

1. Creamer first contends that there was an insufficient nexus between his residence and the illegal activity to establish probable cause because the drugs were sold out of a vehicle, not the residence. We disagree.

Creamer is indeed correct that when the State “fails to show any connection between the items sought and the place to be searched there are no reasonable grounds for the search.” Nevertheless, an officer’s inference that “items sought will be at the place to be searched requires no more than ‘a fair presumption’ to be reasonable.” And here, a reliable Cl purchased marijuana twice from an individual who greeted her at the front door of the Ward Drive residence. Thus, while the seller did retrieve the drugs (which were prepackaged for sale) from his car, both sales took place at the entryway of the residence. Moreover, while the prepackaged drugs were retrieved from a vehicle, the original anonymous tip—which was later corroborated by the Cl—was that drugs were being sold from the residence. Under these particular circumstances, the investigator could have made a “fair presumption” that evidence of drug dealing, such as larger quantities of marijuana along with packaging materials or scales, could be found inside the residence where the drug-dealer appeared to live.

Nevertheless, Creamer contends that our decisions in Wiggins v. State and Tuten v. State support his argument that there was insufficient probable cause to issue the search warrant when the marijuana was being sold out of a car instead of the location identified in the warrant. But his reliance on those cases is entirely misplaced.

In Wiggins, we held that an anonymous informant’s wholly uncorroborated allegation that the defendant was selling drugs from his residence at some undisclosed time—even combined with evidence that the defendant legally possessed a firearm and a personal-use amount of marijuana during a traffic stop after leaving his home—was insufficient probable cause to support the search warrant for his residence. Unlike in this case, after the investigating officer in Wiggins received the anonymous tip, there was “essentially no investigation to determine the anonymous informant’s reliability or to corroborate his claims.” Indeed, the investigating officer sur-veilled the residence—where the defendant was allegedly distributing 50poun ds of marijuan a every week—for only ten minutes, during which she did not observe any evidence of drug dealing. And although the defendant was later found with a personal-use amount of marijuana during a traffic stop, we explained that “it strain[ed] credulity to suggest that his possession of less than one ounce of marijuana in a single bag ... is sufficient to demonstrate his possible involvement in a high volume drug-distribution operation.”

And in Tuten, after a police detective received information from a reliable informant that the defendant had a large quantity of drugs for sale, members of the “drug squad” placed the defendant’s trailer under observation. At some point, the informant entered the trailer; and shortly thereafter, the defendant exited the trailer, drove away, and returned in five minutes. Afew minutes later, the informant left the trailer and informed detectives that “he only took half of what [the defendant] brought back ...and that the defendant “took the other half back to his stash (location unknown).” At the suppression hearing, the officer who obtained the search warrant for the trailer was asked why he applied for a search warrant when the facts affirmatively showed that he had no knowledge of drugs actually being on the premises. In response, the officer testified that “most people who deal in marijuana will at some time have some around... but he admitted that he “was told [the drugs] were removed, [and he] wasn’t sure that there wasn’t anything (left) in [the] trailer.” Based on the foregoing, this Court held that there was insufficient probable cause to support the search warrant for the defendant’s trailer because “the raid carried out was on a mere suspicion that drugs which he knew nothing about might in fact be found within the premises.”

Contrary to Creamer’s argument, the facts underlying our decisions in Wiggins and Tuten are easily distinguishable from those in this case in significant respects. Specifically, unlike in Wiggins, in which there was no investigation to corroborate the anonymous tip, the law-enforcement officers in this case investigated the tip and corroborated the tipster’s allegations by using a known and reliable Cl to purchase drugs at the Ward Drive residence on two different occasions. And also unlike this case, in Tuten, a reliable Cl expressly told the investigating officer that all of the drugs had been removed from the residence to be searched, and the investigator sought the search warrant based on mere suspicion that, despite this representation by the Cl, drugs would nevertheless be found there. But here, evidence showed that the investigator received an anonymous tip that drugs were being sold from the residence to be searched, and a reliable Cl corroborated that tip by purchasing drugs twice from the man who answered the door of the residence. Under these particular circumstances, even though the prepackaged drugs were retrieved from a car directly in front of the residence, the investigator could have made a “fair presumption” that evidence of drug dealing, such as packaging materials and scales, would be found inside the home.

2. Creamer also argues that there was no additional evidence to “correct the nexus issue” because, absent the controlled buys, the affidavit supporting the search warrant relied solely on an anonymous tipster, rather than a “concerned citizen,” and there was no meaningful corroboration for the tip. But given our holding in Division 1 supra (i.e., that the two controlled buys conducted just outside the door to Creamer’s residence were sufficient probable cause for the search), we need not address Creamer’s argument that the anonymous tip, standing alone, was insufficient probable cause.

Decided May 18, 2016

Reconsideration denied June 10, 2016

T. Natasha Crawford, for appellant.

Paul L. Howard, Jr., District Attorney, Kevin C. Armstrong, Assistant District Attorney, for appellee.

For all of the foregoing reasons, we affirm the trial court’s denial of Creamer’s motion to suppress evidence.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

        See, e.g., Christian v. State, 329 Ga. App. 244, 245 (1) (764 SE2d 573) (2014).

       At the suppression hearing, the investigator testified that, although the Cl was later terminated from the City of Atlanta for stealing, she was considered reliable at the time of the controlled purchases at issue in this case.

        See OCGA § 16-13-30.

        Minor v. State, 298 Ga. App. 391, 392 (680 SE2d 459) (2009) (punctuation omitted).

        See U. S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”); see also Ga. Const, art. 1, § 1, ¶ XIII (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the person or things to be seized.”).

        State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009); see also OCGA § 17-5-21 (a).

        Palmer, 285 Ga. at 77 (punctuation omitted); see also DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157) (1997).

        Manzione v. State, 312 Ga. App. 638, 640 (719 SE2d 533) (2011); see also Whitten v. State, 174 Ga. App. 867, 868 (1) (331 SE2d 912) (1985); Illinois v. Gates, 462 U. S. 213, 238 (III) (103 SCt 2317, 76 LE2d 527) (1983).

        Palmer, 285 Ga. at 79 (punctuation omitted); see also Sullivan v. State, 284 Ga. 358, 361 (667 SE2d 32) (2008) (same).

        Macias v. State, 292 Ga. App. 225, 229 (2) (a) (664 SE2d 265) (2008) (punctuation omitted); accord State v. Brantley, 264 Ga. App. 152, 154 (589 SE2d 716) (2003).

        Marlow v. State, 288 Ga. 769, 770 (2) (707 SE2d 95) (2011) (punctuationomitted); accord State v. Staley, 249 Ga. App. 207, 209 (548 SE2d 26) (2001).

        See Macias, 292 Ga. App. at 229-30 (2) (a) (holding that there was sufficient probable cause to search a defendant’s residence after evidence of drug dealing was found in his car during a traffic stop that was conducted when the defendant was coming from his residence, and noting that, under such circumstances, a practical, common-sense conclusion could be made that the drugs and money had been at the defendant’s residence a short time before the stop); Ibekilo v. State, 277 Ga. App. 384, 384-85 (1) (626 SE2d 592) (2006) (holding that the judge issuing the search warrant “plainly had a substantial basis” for determining that there was probable cause to issue the warrant for the search of a residence when, inter alia, a reliable Cl went to the residence, knocked on the door, entered, and then made a controlled purchase of what appeared to be heroin); Perkins v. State, 220 Ga. App. 524, 525 (1) (469 SE2d 796) (1996) (holding that a controlled buy at a particular home provided probable cause for the search of that residence).

       331 Ga. App. 447 (771 SE2d 135) (2015) (physical precedent only).

       156 Ga. App. 758 (275 SE2d 796) (1980).

         See Wiggins, 331 Ga. App. at 450, 454.

        Id. at 451.

        See id. at 451-52.

        Id. at 452.

       156 Ga. App. at 758-59.

        See id. at 759.

        Id. (punctuation omitted).

        See id.

        Id. (punctuation omitted).

        Id.

        See supra footnote 12; see also Brown v. State, 244 Ga. App. 440, 442 (1) (535 SE2d 785) (2000) (“Under the ‘common sense’ approach to search warrants, this controlled buy strongly corroborated the reliability of the informant and showed a fair probability that contraband would be found in the [residence].”).

        See Clemons v. State, 257 Ga. App. 96, 100 (1) (574 SE2d 535) (2002) (“Under a totality of the circumstances approach, corroboration supplies an alternative basis for finding probable cause, where there are deficiencies in the showing of the informant’s veracity, reliability, or basis of knowledge.” (punctuation omitted)).


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A15A1650.
    A15A1685.
    LADDER NOW, LLC et al. v. HANCOCK ROOFING & CONSTRUCTION, LLC. TRINITY INSPECTIONS, LLC et al. v. HANCOCK ROOFING & CONSTRUCTION, LLC.
    (787 SE2d 775)
   ANDREWS, Presiding Judge.

Hancock Roofing & Construction, LLC (Hancock) commenced this action in November 2014 against 54 former employees and independent contractors, alleging they breached restrictive covenants not to compete when they went to work for two of Hancock’s competitors, Ladder Now, LLC, and Trinity Inspections, LLC. Hancock also sued those two competitors and three of their individual owners or managers. Hancock sought injunctive relief and damages for the breach of the restrictive covenants.

Most of the defendants lived and worked outside Georgia and moved to dismiss the action against them based on lack of personal jurisdiction. On January 9,2015, the trial court held a hearing on that issue and Hancock’s request for an interlocutory injunction, and on January 23, 2015, the trial court denied the defendants’ motions to dismiss and entered an interlocutory injunction for Hancock. Almost all the provisions of the injunction were limited to one year after each enjoined party’s last day working for Hancock. Ladder Now, LLC, and Trinity Inspections, LLC, and their individual owners or managers, were enjoined from inducing any of the other defendants to breach the restrictive covenants. The defendant/appellants filed companion direct appeals with this Court, seeking to overturn the interlocutory injunction and the trial court’s denial of their motions to dismiss.

On December 3, 2015, this Court transferred the appeals to the Supreme Court on the basis the cases involved the legality and propriety of the equitable relief granted. But by order dated April 4, 2016, the Supreme Court found that the interlocutory injunction had expired and the challenge to the injunction was now moot. Further, as the only remaining issues did not implicate its subject matter jurisdiction, the Supreme Court returned the appeals to this Court.

As the grant of the interlocutory injunction was the sole directly appealable issue, Hancock moves to dismiss the appeals. OCGA § 5-6-34 (b); Davis v. Davis, 242 Ga. 322 (249 SE2d 90) (1978); Clark v. Atlanta Independent School System, 311 Ga. App. 255, 259 (715 SE2d 668) (2011). The appellants, relying upon Cox v. Altus Healthcare and Hospice, 308 Ga. App. 28 (706 SE2d 660) (2011), assert that although the challenge to the enforcement of the interlocutory injunction is moot, we should still address the enforceability of the noncompete and nonsolicitation covenants, both in the interests of judicial economy and the determination of their pending counterclaims for wrongful restraint. In response, Hancock makes two points: (1) that same argument was raised before but apparently rejected by the Supreme Court; and (2) the appellants’ counterclaims are invalid and provide no basis for avoiding the mootness rule, because under Sneakers of Cobb County v. Cobb County, 265 Ga. 410 (455 SE2d 834) (1995), a claim for wrongful restraint falls under the exclusive remedy provisions of the abusive litigation statute, OCGA § 51-7-80 et seq., and the appellants’ counterclaims did not comply with that statute.

However, the appellants’ counterclaims for wrongful restraint are not before this Court now, and we will not render an advisory opinion discussing them. The bottom line is that, as determined by the Supreme Court, the challenge to the trial court’s grant of interlocutory injunction for Hancock is moot and dismissed. An “appellate court is not required to retain a moot case and decide it because a party might possibly derive some future benefit from a favorable adjudication on an abstract question.” (Citation and punctuation omitted.) Scarbrough Group v. Worley, 290 Ga. 234, 236 (719 SE2d 430) (2011).

The order on the interlocutory injunction was the only directly appealable issue in these appeals. No longer piggybacked on that directly appealable issue, the denial of the appellants’ motions to dismiss for lack of personal jurisdiction has no independent basis for direct appeal. For that reason, the appeal from the trial court’s order denying the motions to dismiss must be dismissed as well. Davis v. Davis, supra; Clark v. Atlanta Independent School System, supra.

Decided June 10, 2016.

Jackson Lewis RC., Robert W. Capobianco, AdrianaM. Scott, for appellants (case no. A15A1650).

Del Campo Weber & Grayson, RandallD. Grayson, for appellants (case no. A15A1685).

Schaeffer Law Firm, David N. Schaeffer, for appellee.

Appeals dismissed.

Doyle, C. J., and Ray, J., concur.


text:
    A16A0231.
    A16A0383.
    In the Interest of O. B. et al., children. In the Interest of T. W., a child.
    (787 SE2d 344)
   ANDREWS, Presiding Judge.

In Case No. A16A0231, the mother of O. B. and T. W. (minor children) appeals from the order of the Juvenile Court of Douglas County terminating her parental rights to the children, and in Case No. A16A0383, the father of T. W. appeals from the same order terminating his parental rights in the child. We consolidate these related cases for consideration in this opinion. Because the termination petition in both cases was filed in 2013, the former version of the Juvenile Code remains applicable in both cases. Ga. L. 2013, p. 294, §5-1 (the new Juvenile Code applies to juvenile proceedings commenced on or after January 1, 2014).

Termination of parental rights pursuant to [former] OCGA § 15-11-94 requires a two-step process. First, the court must determine under [former] OCGA § 15-11-94 (a) “whether there is present clear and convincing evidence of parental misconduct or inability.” Parental misconduct or inability is established where the court finds clear and convincing evidence of the four factors set forth in [former] OCGA § 15-11-94 (b) (4) (A):
(i) The child is a deprived child, as such term is defined in [former] Code Section 15-11-2;
(ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived;
(iii) Such cause of deprivation is likely to continue or will not likely be remedied; and
(iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.
Second, the court must determine under [former] OCGA § 15-11-94 (a) “whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” On appeal from the court’s decision to terminate parental rights under [former] OCGA § 15-11-94, we review the evidence in the light most favorable to the court’s decision and determine whether any rational trier of fact could have found by clear and convincing evidence that the parental rights should be terminated. In the Interest of A. D. I., 291 Ga. App. 190, 191 (661 SE2d 606) (2008). We do not weigh the evidence or determine the credibility of witnesses; rather, we defer to the court’s fact-finding and affirm unless the appellate standard is not met. In the Interest of C. R. G., 272 Ga. App. 161, 162 (611 SE2d 784) (2005).

In the Interest of T. C., 302 Ga. App. 693, 693-694 (691 SE2d 603) (2010). Applying these principles we find: (1) in Case No. A16A0231, the evidence was sufficient to support the court’s termination of the mother’s parental rights in O. B. and T. W., and we affirm; and (2) in Case No. A16A0383, the evidence was insufficient to support the court’s termination of the father’s parental rights in T. W., and we reverse.

Case No. A16A0231

1. The mother of O. B. and T. W. contends that the evidence was insufficient to support the juvenile court’s December 2014 order terminating her parental rights in the children. She claims there was a lack of clear and convincing evidence to support the court’s findings: (1) that the deprivation suffered by the children was likely to continue; and (2) that the continued deprivation will cause or is likely to cause the children to suffer serious physical, mental, or emotional harm.

The mother does not contest the juvenile court’s findings by clear and convincing evidence that O. B. and T. W. are deprived children as set forth in former OCGA § 15-11-2, and that the cause of the children’s status as deprived is the mother’s lack of proper parental care or control. Former OCGA § 15-11-94 (b) (4) (A) (i), (ii). In support of those uncontested findings, the court’s order terminating the mother’s parental rights cites to evidence produced at the hearing on the termination petition (filed by the Georgia Department of Human Services acting through the Douglas County Department of Family and Children Services (the Department)) which showed the following:

O. B. and T. W. were removed from the mother’s custody and placed in foster care in November 2011, and both children were subsequently adjudicated deprived suffering from severe medical neglect and repeated exposure to numerous acts of domestic violence. The children’s deprivation was due primarily to the mother’s mental illness and failure to take prescribed medication to address that illness. The mother suffers from mental illness diagnosed by a licensed psychologist as bipolar illness with psychotic features and possible schizophrenia and post-traumatic stress disorder caused by exposure to domestic violence as a child. The psychologist who evaluated and diagnosed the mother described her appearance as disheveled and her attitude as hostile and confrontational. When not taking her medications, the mother reports that she is homicidal and hears voices in her head. The mother has a history of domestic violence and was convicted of aggravated assault committed against the father of T. W. After the children were placed in the custody of the Department, the mother married a man who the juvenile court had prohibited from having contact with the children because of violent interactions with the children. The mother did not disclose the marriage until after the termination hearing had commenced, and then informed the court that she had no feelings for the man and did not know why she married him. The psychologist concluded that the mother needed psychiatric care for her mental illness, medication management, and therapy to enable her to understand the needs of the children and how to care for them. The psychologist found that the children were at risk of physical and emotional abuse if put in the mother’s care, and that any visitation with the mother should be supervised to protect the children from this risk. During more than 30 months that she was given to work on a reunification case plan, the mother failed to comply with the requirements of the plan — she failed to comply with orders for psychiatric treatment, medication management, and parenting education. The court found that the mother had demonstrated no progress through the requirements for reunification with the children, and that the children remained deprived and at risk because of the mother’s out-of-control behavior caused by the untreated mental illness.

As set forth above, the mother does not contest that there was clear and convincing evidence to support the court’s first two findings under former OCGA § 15-11-94 (b) (4) (A) (i) and (ii) — that O. B. and T. W. are deprived, and that lack of proper parental care and control because of her mental illness is the cause of the deprivation. Having conceded evidentiary support for those findings, we find no merit to the mother’s contention that the court erred by also finding clear and convincing evidence to support its third and fourth findings under former OCGA § 15-11-94 (b) (4) (A) (iii) and (iv) — that the deprivation is likely to continue and that the continued deprivation will cause the children serious physical, emotional, and moral harm. The finding that the deprivation was likely to continue was supported by evidence that, for a period of more than 30 months, the mother failed or refused to cooperate with the Department to implement the reunification plan. In the Interest of A. K., 272 Ga. App. 429, 436 (612 SE2d 581) (2005). As to the finding that the continued deprivation will cause serious physical, emotional and moral harm to the children, the court considers whether the children will suffer serious harm if returned to the mother’s custody given the likelihood that the deprivation would continue. In the Interest of J. E., 309 Ga. App. 51, 58 (711 SE2d 5) (2011). The evidence considered by the court in support of the first three findings also supported the court’s finding that continued deprivation in the mother’s custody would seriously harm the children. In the Interest of B. J. F., 276 Ga. App. 437, 442 (623 SE2d 547) (2005). Finally, the mother does not contest the court’s finding under former OCGA § 15-11-94 (a) that, considering the physical, emotional, and moral needs of the children (including the need for a secure and stable home), termination of the mother’s parental rights is in the best interests of the children. The evidence was sufficient to support the juvenile court’s order terminating the mother’s parental rights in O. B. and T. W.

2. The mother claims that the juvenile court verbally “suspended” evidence in the termination case at a motion hearing, and then erred by subsequently allowing evidence to be introduced and considered in the case. It is unclear what the court intended by referring to “suspended” evidence, but the record shows that the termination case subsequently proceeded with the introduction of evidence and the participation by all the parties including the mother who presented her case and introduced evidence. The mother has failed to demonstrate error or any harm resulting from the alleged error.

3. The mother contends that the juvenile court erred by giving legal effect to various “nunc pro tunc” orders. The mother apparently refers to the same “nunc pro tunc” orders which she contended the juvenile court erroneously found had legal effect in the court’s prior December 2013 judgment finding the children were deprived. The mother filed a prior appeal to this Court from the deprivation order, andin an unpublished opinion — In the Interest of O. B., 331 Ga. App. XXVI (Case No. A14A1841) (March 25, 2015) — we affirmed finding that the evidence presented at the deprivation hearing was sufficient to support the deprivation order, and that the alleged error regarding “nunc pro tunc” orders presented no basis for reversal. In the present appeal, the mother does not contest the sufficiency of the evidence supporting the court’s findings that the children are deprived and the deprivation was caused by lack of parental care and control. We find that, regardless of the legal effect of the “nunc pro tunc” orders, there was clear and convincing evidence supporting the juvenile court’s termination of the mother’s parental rights, and that this alleged error provides no basis for reversal.

4. The Department’s termination petition, filed in November 2013, sought not only to terminate the mother’s parental rights in O. B. and T. W., but also three additional minor children, T. K., K. M., and K. M. The mother contends the juvenile court erred by dismissing the termination petition as to T. K., K. M., and K. M.

The record shows that, during the hearing on the termination petition, the juvenile court signed an order on October 14, 2014 which dismissed the Department’s termination petition as to T. K., K. M., and K. M. and gave custody of those children to their fathers. Although the Department opposed the dismissal, the mother (through counsel) consented. The mother now contends that the dismissal order “in essence” terminated her parental rights in the three children without a hearing and without giving her an opportunity to appeal the decision. The juvenile court’s dismissal order did not terminate the mother’s parental rights in the three children, and the record shows she filed no appeal from the dismissal because she consented to it. We find no error.

Case No. A16A0383

5. The father of T. W. contends that there was a lack of clear and convincing evidence sufficient to support the juvenile court’s order terminating his parental rights on the basis of parental misconduct or inability under former OCGA § 15-11-94 (a).

The juvenile court terminated the father’s parental rights, not on the basis of parental misconduct, but solely “based upon parental inability.” In support of the parental inability ruling, the court’s termination order found the following facts: The father had regular contact with T. W. in Arkansas (where the father resides) until his relationship with the mother ended, and the mother moved with T. W. from Arkansas to Georgia. At that point, the father’s contact with the child was limited because he feared contact with the mother, who had been convicted of aggravated assault against him, and he did not have the financial resources to hire legal counsel to assert rights to the child. The father legitimated T. W. in February 2013 (after T. W. was placed in the Department’s custody), and the father exercised visitation with T. W. when he traveled from Arkansas to attend juvenile court hearings in Georgia. The father is currently married, and he and his wife have two minor children. The father receives disability income “based upon his intellectual functioning classified as mental retardation,” and the father’s wife receives disability income for impaired vision, giving them a total disability income of $1,369 per month. The father “functions well despite his disability,” is able to supplement his disability income, and “provides for his family of four.” The father’s “children and wife come to Court with him and are well nourished, well groomed and behave appropriately.” The court expressed concern over the father’s lack of response to requests to have his Arkansas home approved for placement of T. W. through the Interstate Compact on the Placement of Children (ICPC). As to the ICPC request, the court found that the father’s phone was disconnected, and that he did not respond to letters. This concerned the court because T. W. has behavioral issues that require attention to detail regarding appointments, medications and behavior management. Nevertheless, the father provided testimony at the hearing that he and his wife had housing suitable for T. W. and that, like his other two children, he would obtain medical coverage for T. W. through Medicaid and attend medical appointments with the child. The court concluded that the father “loves his child, wants custody of his child and has demonstrated skills in raising his current family and has demonstrated commitment to the child in attending many of the court hearings and visiting with the child.” Despite the above findings, the court terminated the father’s parental rights by finding that the father “does not have parental ability to meet the needs of this child in conjunction with his present responsibilities, his level of skills and needs of the child.”

The court made no finding that the father presented any danger to T. W. or that the child’s deprivation was caused by any intentional or unintentional misconduct by the father resulting in abuse or neglect of the child. Other than the failure to respond to the ICPC request, the court made no finding that the father failed or refused to cooperate with a case plan for reunification. Although there was evidence that the father did not provide support for T. W. while the child was in the Department’s custody, this was not a basis for the court’s termination order. Rather, the court’s findings with respect to the father show that the basis for the termination order was a finding of parental unfitness by what was tantamount to the father’s mental incapacity to care for T. W. “A mental disability that renders a parent incapable of caring for the child is a valid legal basis for termination.” (Citations and punctuation omitted.) In the Interest of L. H., 236 Ga. App. 132, 135 (511 SE2d 253) (1999), disapproved on other grounds, State v. Herendeen, 279 Ga. 323, 326 (613 SE2d 647) (2005); see former OCGA § 15-11-94 (b) (4) (B) (i). Yet the court made other findings that, despite his mental disability, the father was capable of providing for his wife and two children in Arkansas and had demonstrated skills in raising his family The father testified as to his ability to read and write.

We conclude that, even construing the evidence in favor of the juvenile court’s findings of fact, there was a lack of clear and convincing evidence to support the court’s termination of the father’s parental rights based on parental inability. The court’s finding of parental inability under former OCGA § 15-11-94 (a) required evidence that: (1) the child is deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. Former OCGA § 15-11-94 (b) (4) (A). As to requirement (1), in the absence of an appeal from juvenile court orders finding T. W. was deprived, the father was bound by that determination. In the Interest of N. T., 334 Ga. App. 732, 740 (780 SE2d 416) (2015). As to requirement (2), in determining whether the cause of the child’s deprivation was the lack of proper parental care and control, former OCGA § 15-11-94 (b) (4) (B) provides that the juvenile court shall consider the factors set forth therein, which include evidence of: “(i) A medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” (Emphasis supplied.) The juvenile court’s finding that the father’s intellectual functioning is “classified as mental retardation” was based on a letter the father obtained from the Social Security Administration and provided to the Department which confirmed the basis for the father’s disability income and stated simply: “The disability code is mental retardation.” As set forth above, the court further found that the father functions well (despite his mental disability) and has the skills necessary to provide for and raise his family (including two children) in Arkansas.

Decided June 10, 2016.

Nicole Jones, for appellant (case no. A16A0231).

Bishop Law Group, ThinelBishop, for appellant (case no. A16A0383).

Samuel S. Olens, Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, Andrea R. Moldovan, Assistant Attorney General, for appellee.

With respect to requirement (2) in former OCGA § 15-11-94 (b) (4) (A), on the present record, we find a lack of clear and convincing evidence that T. W. is deprived because the father has a mental deficiency of a nature that renders him unable to exercise proper parental care and control to provide for the needs of T. W. Similarly, with respect to requirements (3) and (4) in former OCGA § 15-11-94 (b) (4) (A), we find a lack of clear and convincing evidence that the cause of the deprivation is likely to continue, and that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

“Termination of parental rights is a remedy of last resort and can be sustained only when there is clear and convincing evidence [satisfying the requirements set forth in former OCGA § 15-11-94].” In the Interest of N. T., 334 Ga. App. at 743 (citation and punctuation omitted). We express no opinion about whether termination of parental rights may be warranted based on future conduct or evidence. Id. at 745.

Judgment affirmed in Case No. A16A0231. Judgment reversed in Case No. A16A0383.

Doyle, C. J., and Ray, J., concur.


author: MERCIER, Judge.

text:
    A16A0647.
    CARLISLE v. BROE.
    (787 SE2d 340)
   MERCIER, Judge.

John Carlisle appeals the trial court’s grant of summary judgment in favor of Mark Broe and its denial of Carlisle’s motion for summary judgment, based on its finding that Carlisle is liable for wrongful eviction and trespass. We agree, and vacate.

“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459, 459 (1) (486 SE2d 684) (1997) (citation omitted). Further, “summary judgment is appropriate when the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” Albertson v. City of Jesup, 312 Ga. App. 246, 248 (718 SE2d 4) (2011) (punctuation and footnote omitted).

Viewed in this light, the evidence shows that this case arises out of a dispute over a commercial lease agreement (the “Lease”) entered into in September 2011. Under the Lease, premises located in Griffin, Georgia (the “Premises”) were leased to The Crafty Yank, Inc. (the “Tenant”) by Carlisle. Broe, The Crafty Yank’s CEO, personally guaranteed the Tenant’s performance of the Lease. Carlisle claims the Tenant began violating the Lease in numerous ways shortly after the business began operation under the Lease. Carlisle alleges the Tenant violated state and local laws, as well as permitted customers to vandalize the Premises, interfered with other tenants’ use and enjoyment of the Premises, and failed to pay for work performed on the Premises that resulted in a lien being filed on the title of the Premises.

On January 5, 2013, Carlisle took possession and control of the Premises and secured all the personal property within. In an e-mail to the Tenant, Carlisle claimed he was seizing the Premises due to Tenant’s violations of paragraphs 18 and 19 of the Lease. Carlisle contended that paragraph 27 of the Lease authorized him to reenter and take possession of the Premises, and Paragraph 24 authorized him to secure all personal property on the Premises. He gave the Tenant five days to become compliant with the Lease or the Lease would be terminated. Broe, who acted as the agent for the Tenant, sent Carlisle correspondence on January 10, 2013, through his attorney, indicating the Tenant’s desire to terminate the Lease.

On February 8, 2013, Carlisle brought the underlying action against Broe, as guarantor, seeking payment of outstanding rent, late fees, and the cost of repairs to the Premises. Broe filed an answer and counterclaim that included claims for declaratory judgment, wrongful eviction, trespass, conversion, breach of contract, punitive damages, and attorney fees. On September 22, 2014, Broe filed a motion for partial summary judgment on his claims for declaratory judgment, wrongful eviction, trespass, and conversion, arguing that the Lease was invalid and thus the Tenant was not subject to the terms of the Lease. Carlisle filed his own motion for summary judgment on February 13, 2015, contending that Broe’s claims for wrongful eviction and trespass should be dismissed as a matter of law.

The trial court entered an order on the cross-claims for summary judgment on July 17, 2015. This order consolidated the trial court’s rulings on pending motions in this and several other related cases. With respect to the motions for summary judgment relevant to this case, the trial court denied Carlisle’s motion for summary judgment as to Broe’s claims for wrongful eviction and trespass, and awarded summary judgment to Broe, finding Carlisle liable for wrongful eviction and trespass, Broe’s conversion claim was withdrawn. This appeal followed.

In his sole enumeration of error, Carlisle argues that the trial court erred in denying his motion for summary judgment and in granting Broe’s motion for summary judgment, based on its finding Carlisle liable for wrongful eviction and trespass. Because there remains a genuine issue of material fact as to whether Carlisle had authority to reenter the Premises, we must vacate the judgment of the trial court.

The first issue that must be decided is whether the Lease authorized Carlisle to reenter the Premises. We hold that paragraph 24 of the Lease did authorize reentry if the Tenant violated its terms.

When a contract is at issue, the court first determines whether the language of the agreement is ambiguous. The language is ambiguous if it is susceptible to more than one meaning. If the language is clear and unambiguous, contract construction is not necessary, and the agreement will be enforced according to its clear and unambiguous terms.

Azzouz v. Prime Pediatrics, 296 Ga. App. 602, 604 (1) (a) (675 SE2d 314) (2009) (citations omitted). Here, paragraph 24 of the lease states, unambiguously:

If and whenever the Tenant is in default in payment of any money, whether hereby expressly reserved or deemed as rent, or any part of the rent, the Landlord may, without notice or any form of legal process, enter upon the Premises and seize, remove and sell the Tenant’s goods, chattels and equipment from the Premises.

While Carlisle’s original communication to Broe cited paragraph 27 of the Lease as justification for reentry, he later asserted that he was entitled to reenter the Premises under paragraph 24 of the Lease.

As a right of reentry did exist under paragraph 24 of the Lease, we must next determine whether the Tenant was in violation of paragraph 24. Carlisle contends that the Tenant was in default on payment of late fees for the month of October 2012, and therefore he had a right to reenter the Premises. Broe argues that the Tenant was not in default, and so Carlisle had no right of reentry. We find that a genuine issue of material fact exists as to whether the Tenant was in default, and so summary judgment was premature.

The Lease requires the Tenant to pay the rent on or before the first day of each month, and to pay a late fee of $25 per day for each day the rent is received after its due date. The parties agree that Broe tendered a check for the October 2012 rent to Carlisle on October 4, 2012. On October 8, 2012, Carlisle sent Broe an e-mail informing him that the Tenant had been three days late on its October rent, and thus owed him $75 in late fees. The Tenant paid Carlisle the $75 late fee on October 10, 2012. On October 11, 2012, Broe discovered that the bank did not honor the rent check that Broe had given Carlisle for the October rent payment. When Broe discovered that his original rent check failed to clear the bank, he sent Carlisle a second rent check, along with an additional $150 for late fees. However, on October 12, 2012, the bank honored the first rent check Broe had delivered to Carlisle. The trial court found that as a matter of law the Tenant was not in default, and therefore Carlisle had no right of reentry However, we find that there is an issue of material fact as to whether the Tenant was in default.

The trial court found that when Carlisle accepted the rent check on October 4, 2012, he “impliedly extended the time of the payment of the rent until the bank . . . either paid [the check] or returned it.” To support this finding, the trial court cited to this Court’s opinion in Matlock v. Brown, 98 Ga. App. 579, 580 (106 SE2d 180) (1958) (physical precedent only) for the principle that “[b]y acceptance of the check the plaintiff impliedly extended the time of the payment of the rent until the bank on which the check was drawn either paid it or returned it to the bank in which it was deposited within a reasonable time from the time of issue.” This is an accurate statement of this Court’s holding in that specific case, yet it is an incomplete statement of the law.

The trial court pointed out in its order, quite correctly, that the rule is a logical one. Otherwise a landlord might accept a rent check and then charge late fees for the days between the date the check was tendered and the date the check cleared the bank. However, it is also true that under a blanket application of this rule a tenant could deliver a bad check to a landlord, and then avoid the payment of late fees for the days between the date the check was tendered and the date the check was dishonored. Such an outcome is as undesirable as the prospect of a landlord holding a rent check for the express purpose of assessing late fees against her tenant.

A more reasonable interpretation of the law would be that by accepting a rent check, a landlord impliedly extends the time of the payment of the rent until the bank on which the check was drawn honors the check. However, if the check is not honored by the issuing bank, then the time of the payment of the rent is not impliedly extended from the date the check was tendered, and the rent will not be deemed to have been paid until a form of payment has been honored by the issuing bank, or some other form of payment has been tendered. See generally Sims v. Bolton, 138 Ga. 73 (74 SE 770) (1912) (check tendered in payment for a mule was not considered payment until it was actually paid by the drawee bank). This does not amount to an overturning of our decision in Matlock v. Brown. In that case, Judge Quillian concurred specially, stating: “I concur in the result, but do not agree that the landlord by accepting the check extended the time for payment of rent beyond the date on which the check was received by him.” Matlock, 98 Ga. App. at 581. Accordingly, the holding in Matlock v. Brown is not binding precedent but acts as physical precedent only. We simply clarify that holding.

Additionally, it is well settled that the payee of a check is potentially subject to various forms of detriment should a check be dishonored.

[T]he payee might allow the giver of the check to continue in possession of rented property as a result of the representation that the check was good. The payee might very well deposit the bad check in payee’s account and proceed to write checks on the account without knowledge that the check received would not be honored. There are many other acts which the payee might have performed to his own detriment as a result of a bad check being given to him.

Cobb v. State, 246 Ga. 567, 569 (2) (272 SE2d 299) (1980). Accordingly, when a tenant tenders rent in the form of a check, the time of payment is impliedly extended under the assumption that the instrument will be honored. Should it not be honored, the tenant loses the presumption of timely payment.

Decided June 10, 2016.

Smith, Welch, Webb & White, R. Brian Strickland, for appellant.

Stan ton Law, Stephanie A. Everett; Knight Johnson, James M. Johnson, Sherri G. Buda, for appellee.

In this case, the first rent check was tendered on October 4, 2012, and thus the time for payment was impliedly extended with the presumption that the check would be honored. However, the check was not honored initially, and there is no argument that the bank incorrectly dishonored it. Upon discovery that the first check was dishonored, Broe sent a second check along with additional late fees to Carlisle. The addition of the late fees to the second rent check indicates that Broe was aware that the Tenant was subject to further late fees as a result of the first check being dishonored. However, the record is unclear as to whether Broe ever actually tendered the second rent check to Carlisle, or if Carlisle accepted such a check. Further, the fact that the first rent check was resubmitted by the bank and eventually honored does not mean payment was made on October 4. The Tenant was in default when the original check was first dishonored. Thus, the rent is deemed to have been paid on October 12, 2012, the date the check was finally honored.

Carlisle’s argument that the late fees accrued until the funds from the rent check were made available in his bank account is unpersuasive. The check was honored by the issuing bank on October 12, and any delay between the time it was honored and the time it was made available in his account is an issue between Carlisle and his bank. Thus, Carlisle cannot charge the Tenant late fees for the days between the time the check was honored and the time the funds were deposited in his account.

In light of our preceding discussion, genuine issues of material fact still exist as to the amount in late fees the Tenant owed, whether or not those late fees were in fact paid, inasmuch as they relate to Carlisle’s right to reenter the Premises. Accordingly, the grant of summary judgment in favor of Broe on his claims of wrongful eviction and trespass, and the denial of summary judgment as to Carlisle on the same is hereby vacated, and the trial court is ordered to make determinations consistent with this opinion.

Judgment vacated and case remanded.

Ellington, P. J., and Branch, J., concur.

       The trial court was correct in finding that paragraph 27 did not grant Carlisle a right of reentry. The title of paragraph 27 is “Additional Rights on Reentry” and the plain meaning of the language contained in the paragraph is that the rights listed are conditional on a right of reentry established independently of paragraph 27.


text:
    A16A0694.
    SOMERVILLE v. WHITE.
    (787 SE2d 350)
   Dillard, Judge.

Marcus Somerville, who successfully sued Wanda White for breach of contract, appeals the trial court’s judgment in White’s favor as to one of her counterclaims, which sought damages for a “violation of Georgia penal laws.” Specifically, the trial court awarded $500 in compensatory damages and $15,000 in punitive damages to White because it found that Somerville violated OCGA § 16-11-90, a statute that criminalizes the transmission of photography or video depicting nudity or sexually explicit conduct of an adult without his or her consent. On appeal, Somerville argues that the trial court erred by entering a judgment and awarding compensatory damages for the alleged violation of a criminal statute that does not provide for a private right of action, and that, under such circumstances, the trial court’s award of punitive damages as to that counterclaim was likewise unauthorized. For the reasons set forth infra, we affirm in part and reverse in part.

Although the factual circumstances underlying this case are immaterial to the purely legal issue we must resolve, a summary of the relationship between the parties is useful to provide context for the judgment being appealed. Somerville and White were involved in a romantic relationship during 2012 and 2013, and after the couple ended that relationship, they remained friends. In April2014, Somer-ville agreed to loan White $3,000 to help her purchase a car, and without a written agreement, he wrote a check to her for that amount. But according to White, on June 15, 2014, Somerville ‘Legan a pattern of harassing and threatening behavior” toward her when demanding repayment of the loan.

On August 1, 2014, Somerville filed this breach-of-contract action against White in magistrate court for her failure to repay the loan. White answered, asserting several affirmative defenses and counterclaims for breach of contract, intentional infliction of emotional distress, invasion of privacy, defamation, and a violation of OCGA § 16-11-90. White alleged, inter alia, that on two occasions after filing his complaint, Somerville went to her workplace, threatened her, and demanded money. In addition, she claimed that on August 15, 2014, Somerville accessed her e-mail account with a password she had given him during their relationship and forwarded nude and sexually explicit photographs of her to over 300 of her e-mail contacts. She also contended that he uploaded similar photographs to one of her social-media accounts. As to the specific counterclaim at issue, White asserted that Somerville violated OCGA § 16-11-90 when he sent the nude and sexually explicit photographs of her to her e-mail contacts for the purpose of harassing, embarrassing, and coercing her.

On November 19, 2014, the magistrate court transferred this case to the State Court of Douglas County, Georgia, because the damages that White sought for her counterclaims exceeded its jurisdictional limits. The case ultimately proceeded to a bench trial, and on August 26, 2015, the trial court issued a judgment resolving all of the claims asserted between the parties. Specifically, the court ruled in favor of Somerville as to his breach-of-contract claim and awarded him $2,000 in principal, as well as post-judgment interest. The court also ruled in Somerville’s favor as to White’s counterclaims for breach of contract, intentional infliction of emotional distress, invasion of privacy, and defamation. However, the court ruled against Somerville as to White’s only remaining counterclaim, which the trial court characterized as one for “Intentional Tort (O.C.G.A. § 16-11-90).” In doing so, the trial court found that Somerville violated OCGA § 16-11-90 by electronically transmitting photographs of White that depict nudity and sexually explicit conduct as defined in the statute. And noting that there was “very little evidence presented” as to actual damages, the trial court awarded White $500 in compensatory damages for her “intentional tort” counterclaim. Finally, to penalize Somerville and deter him from similar conduct in the future, the trial court also awarded White $15,000 in punitive damages for his violation of OCGA § 16-11-90. This appeal by Somerville follows.

1. Somerville first contends that the trial court erred in awarding civil damages to White under OCGA § 16-11-90 because it is a criminal statute that does not provide for a private right of action. We agree.

The trial court awarded civil damages under a penal statute, OCGA § 16-11-90, which criminalizes the transmission of photography or video depicting nudity or sexually explicit conduct of an adult. As conceded by White, OCGA § 16-11-90 does not expressly provide for a private right of action. Suffice it to say, this is fatal to her claim. As the Supreme Court of Georgia has explained, civil liability may only be authorized under a penal statute when the General Assembly has expressly provided for a private right of action in the textual provisions of that statute, “not extrapolated from the public policy the statute generally appears to advance.” The judicial task is, of course, to interpret the statute the General Assembly has passed “to determine whether it displays an intent to create not just a private right of action but also a private remedy.” And statutory intent, as reflected by the plain meaning of the relevant text, on this latter point is “determinative.” In the absence of such textual support, “a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” Thus, to the extent White seeks to have this Court judicially amend OCGA § 16-11-90 to provide for such a private right of action, we decline to do so. It is wholly inappropriate, as well as constituting a clear violation of the separation of powers, for this Court to “fashion causes of action out of whole cloth, regardless of any perceived public policy benefit.” Indeed, Georgia law makes clear that “the public policy advanced by a penal statute, no matter how strong, cannot support the implication of a private civil cause of action that is not based on the actual provisions o/the relevant statute.”

Furthermore, in 2010, the General Assembly enacted OCGA § 9-2-8 (a), which explicitly provides that “[n]o private right of action shall arise from any Act enacted after July 1, 2010, unless such right is expressly provided therein.” And here, the criminal statute at issue was not enacted until April 15, 2014. Thus, because OCGA § 16-11-90 is a criminal statute enacted after July 1, 2010, which does not expressly provide for a private right of action, and given our longstanding precedential authority rejecting the creation of implied private rights of action, the trial court was clearly not authorized to award civil damages to White for Somerville’s alleged violation of that statute. And although White urges this Court to hold that OCGA § 16-11-90 gives rise to an implied civil cause of action when, as here, Somerville’s actions “show willful misconduct, malice, wantonness, and the entire want of care which would raise the presumption of conscious indifference to [the] consequences,” we are constitutionally and statutorily prohibited from doing so. In sum, because White has no private right of action for her “intentional tort” counterclaim under OCGA § 16-11-90, we reverse the trial court’s judgment as to that counterclaim, as well as its award of $500 in compensatory damages.

2. Somerville next argues that the trial court erred in awarding punitive damages to White because such damages are derivative of the trial court’s erroneous award of civil damages under OCGA § 16-11-90. Again, we agree.

As recently explained by our Supreme Court, punitive damages must “arise from and be based upon a compensable injury, as a claim for punitive damages has efficacy only if there is a valid claim for actual damages to which it could attach.” Indeed, punitive damages may not be recovered when “there is no entitlement to compensatory damages.” Thus, given our holding in Division 1 supra (i.e., that White has no private cause of action under OCGA § 16-11-90 for which the trial court could award compensatory damages), we must likewise reverse the trial court’s award of $15,000 in punitive damages.

Decided June 10, 2016.

Lee & Ziegler, Konrad G. W. Ziegler, for appellant.

Torris J. Butterfield, for appellee.

For all the foregoing reasons, we affirm the trial court’s judgment, in part, as to Somerville’s breach-of-contract claim and White’s counterclaims for breach of contract, intentional infliction of emotional distress, invasion of privacy, and defamation, but we reverse, in part, its judgment in favor of White as to her “intentional tort” counterclaim and the attendant awards of compensatory and punitive damages.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Peterson, J., concur.

       We note that Somerville’s complaint is not included in the appellate record, and apparently, the bench trial that occurred in this case was not transcribed. Further, the trial court’s final order provides very limited findings of fact and does not set forth a chronological factual background on which we can rely. However, because this appeal involves a purely legal question of statutory interpretation, we rely on the parties’ underlying pleadings and appellate briefs solely to provide context for the instant dispute between the parties. See Lue v. Eady, 297 Ga. 321, 326 (2) (a) (773 SE2d 679) (2015) (“The interpretation of statutes ... presents a question of law for the court.”). We emphasize that our recitation of the alleged facts gleaned from pleadings and briefs does not constitute a holding that those facts are supported by the evidence presented at trial. And to the extent that the omitted trial transcript could be considered necessary to the resolution of this appeal, we will presume that the findings of the trial court are correct. See Cox v. Bank of Am., N.A., 321 Ga. App. 806, 807 (2) (742 SE2d 147) (2013) (”[W]e will not presume the trial court committed error [when] that fact does not affirmatively appear in the record.” (citation and punctuation omitted)); see also Curry v. Miller, 328 Ga. App. 564, 565 (763 SE2d 489) (2014) (“Georgia’s appellate courts have made clear that [when] the record is incomplete as the result of an appellant’s failure to comply with the requirements of OCGA § 5-6-37, the order of the trial court will be affirmed.”).

       In her appellate brief, White argues that the trial court erred in rejecting her counterclaim for intentional infliction of emotional distress, but she did not file a cross-appeal raising this enumeration of error. Moreover, even if White had properly raised this issue in a cross-appeal, the bench trial was not transcribed, and as a result, White cannot cite to any evidence to support her claim of error. See supra note 1; Sharp v. Greer, Klosik & Daugherty, 256 Ga. App. 370, 372 (2) (568 SE2d 503) (2002) (“It is not the function of this [C]ourt to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (punctuation omitted)). And absent such evidence, the trial court’s judgment on her counterclaim for intentional infliction of emotional distress must be affirmed. See supra note 1.

       Former OCGA § 16-11-90 (b) (2014) provides:
      A person violates this Code section if he or she, knowing the content of a transmission or post, knowingly and without the consent of the depicted person:
      (1) Electronically transmits or posts, in one or more transmissions or posts, a photograph or video which depicts nudity or sexually explicit conduct of an adult when the transmission or post is harassment or causes financial loss to the depicted person and serves no legitimate purpose to the depicted person; or
      (2) Causes the electronic transmission or posting, in one or more transmissions or posts, of a photograph or video which depicts nudity or sexually explicit conduct of an adult when the transmission or post is harassment or causes financial loss to the depicted person and serves no legitimate purpose to the depicted person.
      And under OCGA § 16-ll-90(c), any person who violates the foregoing Code section is guilty of “a misdemeanor of a high and aggravated nature,” and any subsequent conviction for violating this Code section constitutes a felony.

        See generally OCGA § 16-11-90. Cf. OCGA § 46-4-160.5 (creating a private cause of action for retail consumers damaged by certain violations of the Natural Gas Competition and Deregulation Act).

        Anthony v. Am. Gen. Fin. Servs., Inc., 287 Ga. 448, 455 (2) (a) (697 SE2d 166) (2010); accord Murphy v. Bajjani, 282 Ga. 197, 201 (2) (647 SE2d 54) (2007); see also Troncalli v. Jones, 237 Ga. App. 10, 12-13 (1) (514 SE2d 478) (1999); Vance v. T. R. C., 229 Ga. App. 608, 610-11 (1) (a) (494 SE2d 714) (1997); Cechman v. Travis, 202 Ga. App. 255, 256 (1) (414 SE2d 282) (1991).

        Anthony, 287 Ga. at 455 (2) (a); accord Branch Banking & Trust Co. v. Morrisroe, 323 Ga. App. 248, 250 (746 SE2d 859) (2013).

        Alexander v. Sandoval, 532 U. S. 275, 286 (II) (121 SCt 1511, 149 LE2d 517) (2001); see also Gonzaga Univ. v. Doe, 536 U. S. 273, 283-84 (122 SCt 2268, 153 LE2d 309) (2001).

        Sandoval, 532 U. S. at 286 (II).

        Id. at 286-87 (II).

        Schroeder v. Hamilton School Dist., 282 F3d 946, 951 (II) (7th Cir. 2002) (Manion, J.); see also Steel Co. v. Citizens for a Better Env’t, 523 U. S. 83, 102 (IV) (118 SCt 1003, 140 LE2d 210) (1998) (holding that “the Constitution’s central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts” (citation and punctuation omitted)).

        Anthony, 287 Ga. at 456 (2) (a); accord Morrisroe, 323 Ga. App. at 250.

       It appears that the only Georgia case specifically citing OCGA § 9-2-8 (a) is a Supreme Court case in which the penal statute at issue predated OCGA § 9-2-8. See Anthony, 287 Ga. at 459 (2) (c). However, even in that case, the Supreme Court noted that, although OCGA § 9-2-8 was inapplicable, the newly enacted statute evinced the General Assembly’s concern over “judicial creation of implied civil causes of action” and the statute’s enactment “certainly counsels against deviating from [Georgia’s] established precedent to find new implied civil causes of action.” See id. Indeed, the plain language of OCGA § 9-2-8 merely reflects the General Assembly’s agreement with longstanding Georgia precedent that the imposition of “civil as well as criminal penalty must be found in the provisions of the [crim inal] statute at issue, not extrapolated from the public policy the statute generally appears to advance.” See Anthony, 287 Ga. at 455 (2) (a).

        See Ga. L. 2014, p. 220, § 1, codified at OCGA § 16-11-90 (2014). We notethatthe current version of OCGA § 16-11-90, which became effective in March 2015, is identical in all material respects to the 2014 version on which the trial court relied. See OCGA § 16-11-90 (2015). Indeed, in updating the statute, the General Assembly made only minor changes to certain language in OCGA § 16-11-90 (e). See Ga. L. 2015, p. 5, § 16.

       See former OCGA § 16-11-90 (2014); OCGA § 9-2-8 (a); see also Anthony, 287 Ga. at 455 (2) (a), 459 (2) (d) (holding that a statute criminalizing certain fraudulent conduct by notaries public did not provide for a civil cause of action when nothing in the provisions of the crim inal statute itself created such a private cause of action in favor of the victim, who was purportedly harmed by the.criminal conduct); Murphy, 282 Ga. at 200-02 (2) (holding that a criminal statute that required certain school officials to report any commission by a student on school property of statutorily-prohibited acts did not provide a private right of action to victims of such conduct when there was nothing in the provisions of the statute creating such a private cause of action); Smith v. Chemtura Corp., 297 Ga. App. 287, 294-95 (6) (676 SE2d 756) (2009) (holding that penal statutes related to criminal negligence, reckless endangerment, assault, battery, false imprisonment, and kidnapping do not provide a basis for a civil action by the alleged victim when nothing in the provisions of those statutes provides a basis for such an action); Verdi v. Wilkinson Cty., 288 Ga. App. 856, 857-89 (655 SE2d 642) (2007) (holding that a penal statute, which makes it a felony to, inter alia, maliciously remove a dead body from a grave, does not provide a private cause of action for a plaintiff, who was apparently attempting to protect a family cemetery, when nothing in the provisions of the statute creates a private cause of action in favor of the victim purportedly harmed by the violation of that statute).

        See Ga. Const. art. I, § 2, ¶ III (“The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions ofeitherofthe others except as herein provided.”); OCGA § 9-2-8 (a).

        Carter v. Progressive Mountain Ins., 295 Ga. 487, 490 (761 SE2d 261) (2014) (punctuation omitted).

        Id. at 490 (punctuation omitted).

        See id.


author: PHIPPS, Presiding Judge.

text:
    A14A1934.
    KLIESRATH et al. v. ESTATE OF DAVIS et al.
    (788 SE2d 499)
    Decided June 15, 2016.

      Laura K. Johnson, Terri N. Gordon, for appellants.

      Moss & Rothenberg, Robert A. Moss, for appellees.
   PHIPPS, Presiding Judge.

In Kliesrath v. Estate of Davis, the Supreme Court of Georgia vacated our decision in Kliesrath v. Estate of Davis, determining that we did not have jurisdiction of the appeal. Accordingly, we adopt the opinion of the Supreme Court as our own and dismiss the appeal.

Appeal dismissed.

Ellington, P. J., and McMillian, J., concur.

        Kliesrath v. Estate of Davis, 298 Ga. 872 (786 SE2d 238) (2016).

        See Kliesrath v. Estate of Davis, 331 Ga. App. XXIV (March 30, 2015) (unpublished).


author: DOYLE, Chief Judge.

text:
    A15A2232, A16A0654.
    BASKIN v. HALE (two cases).
    (787 SE2d 785)
   DOYLE, Chief Judge.

Shannon Baskin and Gary Hale, who never married, have two biological sons. Baskin also has a daughter from a preceding relationship. In Case No. A15A2232, Baskin appeals the superior court’s final judgment awarding Hale primary physical custody of all three children. In Case No. A16A0654, Baskin appeals the superior court’s order granting a permanent injunction prohibiting the parties, their attorneys, and court personnel from discussing the custody case with the media and/or from placing or causing the placement of any information about the case on social media. For the reasons that follow, in Case No. A15A2232, we affirm in part and reverse in part. In Case No. A16A0654, we vacate the injunction.

In 2003, the parties began a romantic relationship; Baskin’s daughter, A. W., was ten months old, and the parties shared parenting duties. In July 2005, the parties’ first son, G. H., was born, and they moved in together. The parties ended their relationship in 2006, and in 2007, Hale sought to legitimate their son. On March 30, 2007, the parties entered into a consent order, which legitimated their son, provided the parties with joint legal custody of both children, gave Baskin primary physical custody of her daughter and Hale primary physical custody of their son, and gave Hale visitation with both children four nights a week and Baskin visitation the other three nights. The consent order specifically acknowledged that Hale was not A. W.’s biological father, but stated that Hale “raised [her] as his own” while he lived with Baskin and that A. W. had lived with one or the other of the parties since their separation. The order was signed by both parties and the superior court.

On March 14, 2014, Baskin filed a petition for modification of custody, seeking to terminate Hale’s joint custodial rights and visitation rights as to her daughter and modify his visitation rights as to their oldest son. Hale filed an answer and a counterclaim for contempt, legitimation of their second son, W. H., and a custodial determination as to W. H. On May 12, 2014, the superior court appointed a guardian ad litem (“GAL”). On July 30, 2014, following a status hearing, at which the GAL testified, the court entered a temporary order: granting the parties joint legal custody of their second son, with Hale having primary physical custody; maintaining the parties’ joint legal custody of A. W. and G. H., granting Baskin primary physical custody of her daughter and Hale primary physical custody of their oldest son; and giving the parties equal visitation with the children (every other week, from Wednesday to Wednesday).

On April 27, 2015, following a final hearing, the superior court entered a final custody judgment, awarding the parties joint legal custody of all three children, with Hale having primary physical custody, and granting Baskin visitation with them every other weekend, one afternoon each week, on alternating holidays, and every other week during the summer. The court concluded in the order, that, among other things, Baskin “interfered with Hale’s rights to [G. H.] and [A. W.]”; Baskin “engaged in a pattern of parental alienation” and “defied orders of [the] court”; “Baskin’s household is chaotic and unstable[, and s]he cannot control [A. W.]”; law enforcement had been called to the Baskin residence at least six times during the pendency of the litigation; “[t]he children are unsafe in Baskin’s primary care”; “Baskin is controlling, manipulative, recalcitrant[,] vindictive[,] and not . . . truthful”; and “Hale appears to maintain a stable household [and to be] capable of providing . . . [the] structure and stability” that “A. W. desperately needs.” Applying the factors set forth in OCGA § 19-9-3 (a) (3), the court concluded that “the preponderance of the evidence demonstrates that it is in the children’s best interest for Hale to have primary physical custody.” Further, while acknowledging that Hale was not the biological or legal father of A. W, the superior court found that Hale “acquired parental status through the 2007 [c]onsent [o]rder,” “Baskin is unfit for physical custody of [A. W.],” and “by clear and convincing evidence, ... if [A. W] remains in the primary physical custody of Baskin, [A. W] will suffer physical harm and significant long-term emotional harm.”

On April 28, 2015, the superior court entered an order granting an injunction until their youngest son reaches 18 years of age. The court noted therein that it had previously entered a “gag order” in the case after Baskin made “derogatory and disparaging comments” on social media about Hale, the court, and the proceedings, which comments the court concluded were “detrimental to the parties’ minor children . . . and intimidating to the parties.” The court also concluded that, in an effort to intimidate the court and “invite the attention of the media to this case,” Baskin had filed a motion to recuse, as well as a complaint in federal court to enjoin enforcement of the gag order. Thus, the court ordered, in relevant part:

[Baskin, Hale], their attorneys, and the [GAL] are hereby restrained and enjoined from putting, placing[,] or causing to be placed any information concerning this custody case upon or in any social media, website, or other public medium. The parties are restrained and enjoined from, directly or indirectly, putting, placing, or causing to be placed any disparaging or derogatory comments about the opposite party upon or in any social media, website, or other public medium. The restrictions of this paragraph include restricting the persons named or referred to from speaking or corresponding with any print, radio[,] or television media about this case. This restriction shall extend until [W. H.] attains the age of 18 years. [The parties] and their attorneys are hereby restrained and enjoined from putting, placing[,] or causing to be placed any allegation that any transcript in this case has been altered upon or in any social media, website, or other public medium, or speaking or corresponding with any print, radio[,] or television media about any such allegation. This issue was adequately addressed in this court’s Final Order Denying Production of Audio Recordings, entered April 23, 2015. Any allegation that this court’s reporter’s transcript of the July 11, 2014 [hearing] is flawed is frivolous, and without any foundation in law or in fact. This matter is res judicata with respect to the parties.

These appeals followed.

Case No. A15A2232

Baskin appeals the final judgment awarding primary physical custody of all three children to Hale.

1. Custody of A. W. Baskin contends that the trial court erred by granting custody of her daughter, A. W., to Hale. We agree.

“Only the mother of a child born out of wedlock is entitled to custody of the child, unless the father legitimates the child as providedin Code Section 19-7-21.1 or 19-7-22. Otherwise, the mother may exercise all parental power over the child.” Here, A. W.’s biological father has made no efforts to legitimate A. W., and Hale has made no efforts to terminate the biological father’s parental rights or to adopt A. W. Nonetheless, Hale argues that Baskin relinquished to him her parental power over A. W. by giving him joint custody with reasonable visitation rights to her daughter in the 2007 consent order. This argument is without merit.

Parental power over a child may be lost pursuant to OCGA § 19-7-1 (b) (1) by “[vjoluntary contract releasing the right to a third person. . . .” As the trial court acknowledged, all of the cases citing that Code section contemplate a parent’s complete relinquishment of their entire parental rights. But the trial court interpreted the statute to authorize a permanent surrender of a partial portion of parental power. Pretermitting, however, whether OCGA § 19-7-1 (b) (1) allows a permanent partial surrender of parental power, Baskin did not permanently surrender her parental power or custody rights to A. W. in the 2007 consent order.

To support a finding that a party relinquished her parental rights pursuant to a voluntary contract under OCGA § 19-7-1 (b) (1), “the evidence must establish clear, definite, and unambiguous terms of such a contract.” Here, there is no indication that when entering the 2007 consent order, the superior court decided that Hale would have a permanent ongoing custodial right in A. W. or that such a custodial arrangement was in the child’s best interest. By entering into the consent order, Baskin simply agreed that Hale was entitled to joint custody of A. W., with liberal visitation, at that time. She did not bestow upon Hale permanent custodial or parental rights in A. W. Thus, the record does not support the trial court’s conclusion that Baskin voluntarily relinquished her parental power pursuant to OCGA § 19-7-1 (b) (1).

In a similar argument, Hale contends that the 2007 consent order is res judicata as to the issue of custody, contending that because she consented to that custody arrangement, Baskin is now barred from arguing that Hale has no legal right to custody of A. W. But this argument ignores the fact that, unlike adoption or termination of parental rights, custody and visitation rights are subject to review and modification. Given the absence of consent by Baskin or a prior finding by the court that Hale had a permanent custodial right in A. W., the doctrine of res judicata does not control this case.

Accordingly, because Hale had no right to permanent custody of A. W., “we reverse the juvenile court order and direct [the court] on remand to award custody [of A. W.] to [Baskin] .” In so doing, we “simply find that [Hale] had no standing to seek custody [of A. W.] in this case.”

2. Custody of G. H. and W. H. Baskin also argues that the superior court abused its discretion by awarding primary physical custody of the parties’ two sons to Hale. Baskin, however,

stated in her amended notice of appeal that no transcript would be filed for inclusion in the appellate record, and no statutorily authorized substitute for the transcript has been submitted. Because the transcript of the evidentiary hearing is not part of the record, we must presume that the trial court’s ruling was correct and affirm.

Accordingly, this enumeration presents no basis for reversal, and we affirm the final judgment on custody with regard to G. H. and W. H.

Case No. A16A0654

3. Injunction. Baskin argues that the superior court erred by entering the injunction. We agree.

In the order granting the injunction, the court noted that it was proceeding under OCGA § 9-11-65 (e), which empowers courts in “actions for divorce, alimony, separate maintenance, or custody of children . . . [to] make prohibitive or mandatory orders, with or without notice or bond, and upon such terms and conditions as the court may deem just.” The court cited Lacy v. Lacy, in which this Court affirmed a trial court’s temporary restraining order enjoining the parties in an ongoing divorce and child custody proceeding from “posting matters about each other or their current litigation on Facebook or other social networking sites.” This Court noted that “a trial court can require the parties in a divorce proceeding to refrain from making derogatory remarks about the other before the children.”

Our analysis, however, does not end there. Prior restraints of speech, such as the order here, are not unconstitutional per se, but they bear a “heavy presumption against [their] constitutional validity. The Government thus carries a heavy burden of showing justification for the imposition of such a restraint.” An attempt to effect a prior restraint is subject to “exacting scrutiny.” The United States Supreme Court has instructed that

[p]roperly applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. The possibility that other measures will serve the State’s interests should also be weighed.

Reviewing the injunction in this case, we conclude that the superior court failed to properly balance the danger flowing from the prohibited speech with the parties’ and attorneys’ First Amendment rights. The superior court did reference its finding in the temporary restraining order that it balanced Baskin’s First Amendment rights with “the rights of the children not to have derogatory and disparaging comments posted in a public forum concerning their parents and the rights of the children [not to] have details concerning their family’s legal issues placed in a public forum,” finding that “placing derogatory and disparaging remarks in the public forum ... concerning the opposite party and/or placing details concerning this litigation in the public forum is detrimental to the parties’ minor children . . . and intimidating to the parties.” The court, however, failed to share the basis of such a conclusion, pointing to no evidence regarding the negative effect that such speech had on the children, and it made no attempt to find that the injunction was narrowly tailored to protect any compelling interest.

We further note that although Hale filed a motion for the temporary restraining order subsequently issued by the court, he did not move for a permanent restraining order. Instead, the trial court issued the permanent injunction sua sponte, referencing a motion to recuse filed by Baskin, as well as an action she filed in federal court seeking to overturn the temporary order, noting that her actions “[were] an obvious attempt to intimidate the [judge].”

Our review of the order, the record, and the transcript of a status conference indicates that the trial court was primarily concerned with Baskin’s public criticism regarding the litigation, including the court’s rulings, as well as the involvement of third parties who, among other actions, questioned the accuracy of court transcripts. As the United States Supreme Court has stated:

Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. Although it is assumed that judges will ignore the public clamor or media reports and editorials in reaching their decisions and by tradition will not respond to public commentary, the law gives judges as persons, or courts as institutions no greater immunity from criticism than other persons or institutions. The operations of the courts and the judicial conduct of judges are matters of utmost public concern.

Decided June 15, 2016

Shannon D. Briley, for appellant.

Brandon K. Dial, for appellee.

Certainly, we recognize the authority granted to trial courts to restrict a parent’s communications and postings on social media during the pendency of a divorce or custody proceeding, as the trial court did in Lacy. But we cannot condone the superior court’s attempt in this case to restrict the parties’ and lawyers’ right to publicly criticize the court and the litigation for the next ten years. Given the absence of any evidence of “imminent danger to a compelling interest of such magnitude that the restraint on the parties’ [and lawyers’] speech would lie warranted,” as well as the superior court’s failure to properly conduct the balancing test and narrowly tailor the restrictions, we vacate the permanent injunction issued in this case.

Judgment affirmed in part and reversed in part in Case No. A15A2232. Judgment vacated in Case No. A16A0654.

Phipps, P. J., and Boggs, J., concur.

       In the final judgment, the superior court noted that A. W.’s biological father had not legitimated her, supported her, or had any parental contact with her.

       The modification petition did not mention the parties’ second son, W. H., who was born in 2008.

       Hale alleged in the petition that Baskin refused to comply with their consent agreement and that he had not had visitation with A. W. since November 2012.

       (Emphasis omitted.)

       The superior court noted in its order that the parties included A. W. in the 2007 consent order at Baskin’s suggestion.

       (Emphasis omitted.)

       (Punctuation omitted.)

       The order also included a child support award, including arrearage. Baskin does not challenge that portion of the order on appeal.

       The court denied the motion to recuse.

       This appeal was originally docketed on July 24, 2015. On September 9, 2015, it was dismissed based upon Baskin’s failure to file a brief. On October 1, 2015, this Court granted Baskin’s motion for reconsideration and reinstated her appeal.

       OCGA § 19-7-25. See also Veal v. Veal, 281 Ga. 128, 128-129 (636 SE2d 527) (2006).

       Hale also argues that OCGA § 19-7-1 (b.l) contemplates the loss of custody by a parent to a third party upon a determination by a trial court that “an award of custody to such third party is for the best interest of the child ... and will best promote [her] welfare and happiness.” But “third party” is specifically “limited to [a] grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent[.]” OCGA § 19-7-1 (b.l). Because Hale is neither the adoptive parent of A. W. nor one of the relatives listed in the Code section, OCGA § 19-7-1 (b.l) provides him no basis for obtaining custody of A. W. See Phillips v. Phillips, 316 Ga. App. 829, 831-832 (2) (730 SE2d 548) (2012).

       See, e.g., Stills v. Johnson, 272 Ga. 645, 646 (533 SE2d 695) (2000); In the Interest of M. A. F., 254 Ga. 748, 750 (1) (334 SE2d 668) (1985).

        Blackburn v. Blackburn, 168 Ga. App. 66, 70-71 (1) (308 SE2d 193) (1983), citing Shaddrix v. Womack, 231 Ga. 628, 631 (3) (203 SE2d 225) (1974); Waldrup v. Crane, 203 Ga. 388, 390 (46 SE2d 919) (1948); Beavers v. Williams, 199 Ga. 113, 124 (2) (33 SE2d 343) (1945).

         See In the Interest of M. F., 298 Ga. 138, 143, n. 11 (780 SE2d 291) (2015) (“[E]ven if the father had consented to the entry of [an order granting permanent guardianship to a third party], it would mean only that he could not be heard to complain that the juvenile court erred by setting up a permanent guardianship in the first place. The father does not complain now, however, that a permanent guardianship was not warranted [at the time the guardianship was established]. To the contrary, he says that things have changed since then, and the permanent guardianship ought to now be set aside.”).

       The doctrine of res judicata seeks to bring finality to litigation. By law, a judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the mies of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

        Austin v. Cohen, 268 Ga.App. 650, 654 (1) (602 SE2d 146) (2004) (punctuationomitted), quoting OCGA § 9-12-40. The Supreme Court of Georgia
      has held, however, that the doctrine of res judicata - and in particular, the rule that bars re-litigation of matters that could have been, but were not actually, raised and decided in a previous action - should not be applied mechanically in divorce and alimony cases. The true rule of res judicata in divorce and alimony cases ... is that a final decree has the effect of binding the parties and their successors as to all matters which were actually put in issue and decided, or which by necessary implication were decided between the parties. Or as the Court of Appeals later put the point, the doctrine of res judicata is less strictly applied in divorce and alimony cases . . . and does not bar litigation of matters that merely could have been put at issue in the earlier proceeding.

        Hardman v. Hardman, 295 Ga. 732, 735 (2) (763 SE2d 861) (2014) (citations and punctuation omitted), quoting Brookins v. Brookins, 257 Ga. 205, 205-206 (357 SE2d 77) (1987) and Dial v. Adkins, 265 Ga. App. 650, 651 (595 SE2d 332) (2004). Although this case does not involve divorce, we find the application limitation on res judicata equally applicable to custody cases.

       See OCGA § 19-9-3 (b).

       Compare Bates v. Bates, 317 Ga.App. 339, 342-344 (730 SE2d 482) (2012) (res judicata barred biological mother’s challenge to the validity of a consent adoption decree because she had a full and fair opportunity to litigate this issue in a prior motion to set aside the adoption). We acknowledge the holding in Rimmer v. Tinch, 324 Ga. App. 65 (749 SE2d 236) (2013), in which this Court held that the doctrine of res judicata barred the mother and adoptive father’s challenge to the legality of a prior consent order terminating the biological father’s rights, granting adoption by the stepfather, granting visitation to the paternal grandmother, granting supervised visitation by the biological father, and agreeing that the biological father could petition the court for unsupervised visitation after one year. However, because one judge joined in the judgment only, Rimmer is physical precedent only. See Avila v. State, 333 Ga.App. 66, 70, n. 9 (775 SE2d 552) (2015); Court of Appeals Rule 33 (a). Moreover, Rimmer is easily distinguishable. In that case, the mother and stepfather specifically agreed to allow the biological father to seek unsupervised visitation after a year in exchange for his agreement to terminate his parental rights and consent to the adoption by the stepfather. And the mother and adoptive father sought to invalidate only that portion of the agreement granting the biological father’s visitation rights, leaving the adoption and termination of his parental rights intact. Here, by contrast, Hale did not relinquish any rights in exchange for joint custody of A. W., and Baskin did not agree to any future custodial arrangement for Hale. Therefore, this case does not present the same quid pro quo final adjudication of custody.

        In the Interest of C. L., 284 Ga. App. 674 (644 SE2d 530) (2007).

       Id. at 676 (1).

        Trotter v. Ayres, 315 Ga.App. 7, 10 (3) (726 SE2d 424) (2012). See also Hadden v. Hadden, 283 Ga. 424 (1) (659 SE2d 353) (2008).

       Baskin filed a notice of appeal in this case in the Supreme Court of Georgia. On October 2,2015, the Supreme Court dismissed the appeal on the basis that a discretionary application was required because the case was a “domestic relations” case under OCGA § 5-6-35 (a) (2). On November 2, 2015, on reconsideration, the Supreme Court vacated the dismissal order and transferred the appeal to this Court.

       320 Ga. App. 739 (740 SE2d 695) (2013).

       Id. at 752 (12).

       (Punctuation omitted.) Id., quoting Maloof v. Maloof, 231 Ga. 811, 812 (6) (204 SE2d 162) (1974).

       “[G]ag orders . .. exhibit the characteristics of prior restraints.” United States v. Brown, 218 F3d 415, 424 (II) (5th Cir. 2000).

       (Citations and punctuation omitted.) New York Times Co. v. United States, 403 U. S. 713, 714 (91 SCt 2140, 29 LE2d 822) (1971) (per curiam). See also Paramount Pictures Corp. v. Busbee, 250 Ga. 252, 255, n. 5 (297 SE2d 250) (1982).

        Smith v. Daily Mail Publishing Co., 443 U. S. 97, 102 (3) (99 SCt 2667, 61 LE2d 399) (1979).

        Landmark Communications v. Va., 435 U. S. 829, 842-843 (IV) (98 SCt 1535, 56 LE2d 1) (1978).

       Hale has not filed a brief in this case.

       For example, at a status conference, the superior court told Baskin:
      I am also concerned - this does not - it really doesn’t affect you very much, but I am also concerned - I’m more than concerned. I’m hacked off, if you want to know the truth, about people meddling in my cases. And that’s what I’ve got going on here. . . . These [third parties] people who have injected themselves and are undermining the judicial process. And when you take them and then you add it to the comments [you made on a website seeking funding for your attorney fees in which you state you have been railroaded], it looks like one could believe that there is something that is corrupt about the system. I take offense to that.. . . And we’re going to have a judge’s meeting tomorrow. We’re going to get to the bottom of this issue, of people undermining the judicial system.

       (Citations and punctuation omitted). Id. at 838-839 (III) (A), quoting Mills v. Alabama, 384 U. S. 214, 218 (86 SCt 1434, 16 LE2d 484) (1966), and Bridges v. California, 314 U. S. 252, 289 (62 SCt 190, 86 LE 192) (1941) (Frankfurter, J., dissenting).

        Lacy, 320 Ga. App. at 752 (12).

        In the Interest of R. J. M. B., 133 So3d 335, 346 (II) (Miss. 2013). See also In re Interest of T. T., 18 Neb. App. 176, 198 (779 NW2d 602) (Neb. 2009) (“In the end, we must conclude that the evidence is simply insufficient, absent conjecture and speculation which we cannot engage in, to satisfy the State’s heavy burden to justify this prior restraint on free speech and to overcome the heavy presumption of unconstitutionality of a prior restraint on speech. There is no evidence proving imminent harm to [the child in the custody case] of a magnitude that justifies a prior restraint on free speech. Therefore, we vacate that portion of the juvenile court’s order . . . preventing the parents from disclosing information about [the child].”).