text:
    A15A1733.
    JORDAN et al. v. STATE OF GEORGIA.
    (785 SE2d 27)
   BARNES, Presiding Judge.

Eight individuals brought suit on behalf of the State of Georgia against three related pharmaceutical companies under the Georgia False Medicaid Claims Act (GFMCA), OCGA § 49-4-168 et seq. The plaintiffs alleged that the companies fraudulently obtained millions of dollars in Medicaid payments for an anti-psychotic medication that the companies improperly marketed to healthcare providers for “off-label” uses, such as to calm elderly patients with dementia and help them sleep.

The State moved to dismiss the complaint based on an earlier-filed federal False Claims Act, 31USC § 3729 et seq., suit against the same pharmaceutical companies for similar claims. The State became a plaintiff in the federal suit before this case was filed, and entered into a settlement agreement with the pharmaceutical companies after this case was filed. The trial court granted the State’s motion to dismiss, and the plaintiffs have appealed. For the reasons that follow, we affirm.

In 2007, the legislature enacted the GFMCA and created a procedure by which Georgia’s Attorney General or its private citizens could sue people and entities for making false or fraudulent Medicaid claims that depleted the state treasury. OCGA § 49-4-168.2 (a), (b). The Act provides for penalties and damages to be assessed against the defendants, and was designed to reward individuals “when their initiative results in civil recoveries for this state.” Ga. L. 2007, p. 355, § 2/HB 551. See Michael A. Sullivan, A “False Claims Act” Is Finally Enacted in Georgia, Ga. Bar J., October 2007 at 12. Private citizens must file the action under seal in the name of the State, and must first serve a copy of the complaint and any material supporting evidence on the Attorney General. OCGA § 49-4-168.2 (c) (1), (2). The case remains under seal for at least 60 days “to allow the Attorney General to investigate the allegations of the complaint” and either elect to intervene or move the court to extend the time under which the complaint remains sealed. OCGA § 49-4-168.2 (c) (2), (3). Before the expiration of the time during which the case is sealed, the statute directs that the Attorney General shall either proceed with the action and prosecute the case or decline to take over the action; if the latter, the private citizens have the right to proceed with the action on their own. OCGA § 49-4-168.2 (c) (4). The trial court may then unseal the complaint and the defendant may be served. OCGA § 49-4-168.2 (c) (2), (5).

If the Attorney General elects to intervene, he may seek to limit the participation of the individuals who initiated the action, may move to dismiss the complaint, or may settle the complaint over the individual objections if the court determines the settlement would be fair, adequate, and reasonable under all the circumstances. OCGA § 49-4-168.2 (d) (l)-(3). Even if the Attorney General initially elects not to intervene, he retains the right to intervene “at a later date for any purpose, including, but not limited to, dismissal of the civil action notwithstanding the objections of the person initiating the civil action,” as long as the person has been notified by the Attorney General that a motion to dismiss has been filed and is given an opportunity for a hearing on the motion. OCGA § 49-4-168.2 (f).

Additionally, the GFMCA has a “first to file” provision, specifying that “[w]hen a person brings a civil action under this subsection, no person other than the Attorney General may intervene or bring a related civil action based on the facts underlying the pending civil action.” OCGA § 49-4-168.2 (c) (6). The Act also provides that “[i]n no event may a person bring a civil action under this article which is based upon allegations or transactions which are the subject of a civil or administrative proceeding to which the State of Georgia is already party.” OCGA § 49-4-168.2 (j).

The complaint and exhibits in this case were filed on March 20, 2013. The exhibits included affidavits from the individual plaintiffs, six of whom are healthcare workers who were or had been employed at Pleasant View Nursing Home and two of whom were sales representatives for the defendants. On March 26, 2013, the plaintiffs filed with the trial court a copy of the disclosure statement given to the Attorney General, which included the complaint, exhibits, and a detailed summary of the evidence supporting their claim. The plaintiffs contended that the defendant pharmaceutical companies had caused false claims to be submitted to the State Medicaid program “as a direct result of their false and misleading marketing of the prescription drug Risperdal regarding its efficacy and safety profile, as well as their promotion of Risperdal for ‘off-label’ uses not approved by the U. S. Food and Drug Administration.”

On May 21, 2013, the State requested a four-month extension of the time during which it could elect to intervene, and asked the trial court to partially lift the seal to disclose the complaint to other state attorneys general who were members of the National Medicaid Fraud Control Units and to the United States Department of Justice (DOJ). The plaintiffs consented to the extension and partial lifting of the seal.

The State submitted an in camera memo supporting its request for an extension and to partially lift the seal, explaining that both the Fraud Control Units and the DOJ had teams assigned to multiple federal cases involving the same allegations of fraud against the same defendants, and that the State of Georgia was a named plaintiff in those federal cases. The State sought to share the complaint so it would be able to “evaluate the allegations with the government entities that have already invested substantial resources into investigation of the same claims,” and thus make an informed decision about whether to intervene in this action. The trial court granted the extension and partially lifted the stay as requested.

The next pleading in the record is the State’s motion to dismiss the complaint with prejudice, filed on March 19, 2014. The State argued that this action is jurisdictionally barred by the GFMCA because a federal lawsuit with identical claims was filed almost ten years earlier, and because the State had already settled those claims, precluding the trial court from obtaining jurisdiction to consider these claims. Included with the motion was a copy of the fourth amended federal complaint filed by Victoria Starr against these defendants on March 3, 2010, alleging complaints that mirror those alleged in the case at bar. The State of Georgia was a named plaintiff in the amended federal complaint, which contained detailed factual allegations about the defendants’ illegal kickbacks and fraudulent promotion of Risperdal for use in “elderly patients, children and prisoners .. . [who] suffer from a wide spectrum of psychiatric mood disorders not normally considered by the FDA to be appropriate for treatment with the highly sedating drug Risperdal.” Count 5 of the federal complaint alleged that the defendants violated the GFMCA. The federal complaint was dismissed on December 31, 2013, with an order that also unsealed itself, the amended complaint, and the parties’ joint stipulation of dismissal.

The State also submitted as an exhibit to its motion to dismiss this case a copy of the settlement agreement between the State and the pharmaceutical companies, which acknowledged the State’s claims against the companies for their conduct in marketing Risperdal for off-label use and paying illegal remuneration to healthcare and pharmacy providers to induce them to promote and prescribe the drug. The agreement provided that Janssen Pharmaceuticals, Inc., would plead guilty to a federal criminal charge of introducing misbranded drugs into interstate commerce and that the defendants, while admitting no further wrongdoing, would pay to the United States and participating States a total of $ 1,273,024,000 plus interest accrued until the money was disbursed. Participating States, that is, those that signed the agreement and agreed to dismiss with prejudice any similar pending state law claims they had the authority to dismiss, were each allocated $33,435,877 plus interest, with $13,285,638 payable directly to the States and the difference payable to the federal government. The settlement agreement was signed by a representative of Georgia’s Attorney General on September 3, 2013.

The plaintiffs objected to the State’s motion to dismiss, arguing that the State failed to file notice of its intention to intervene or not in this case before the expiration of the extension of time granted by the trial court. They also argued that their case was the first filed because the unsealed federal documents do not show that the federal plaintiffs had served the State with a copy of the complaint and all material supporting information as required by OCGA § 49-4-168.2 (c) (1), or that the State investigated the Starr complaint and elected to intervene within the time frame set out in the Act at OCGA § 49-4-168.2 (c) (2)-(4). Finally, they argued that the Starr complaint failed to state the Georgia claim with the specificity required by the Act.

Following a hearing in May 2014, the trial court granted the State’s motion to dismiss in July 2014, finding that the State had settled the Starr case in November 2013. As a condition for recovery, the State agreed to release with prejudice claims that the defendants

knowingly... (a) promoted the sale and use of Risperdal for conditions and patients which [were] not approved as safe and effective by the Food and Drug Administration . . . (b) made false and misleading statements about the safety and efficacy of Risperdal; and (c) offered and paid illegal remuneration to healthcare professionals and long term care pharmacy providers to induce them to promote and/or prescribe Risperdal in violation of [federal] and state anti-kickback statutes.

The trial court further found that the federal court had granted the State’s request for a dismissal with prejudice of the claims identified in the settlement agreement, and that the federal dismissal order was a final judgment on the merits for res judicata purposes. Finally, the court found that the claims in this case were based on the same cause of action as the Starr case.

On an appeal of a trial court’s order that dismisses a cause of action for failure to state a claim upon which relief can be granted, the reviewing court must determine whether either party has presented matters outside the pleading to the trial court, and if so whether the trial court excluded or considered such matters. Therefore, if matters outside the pleadings were presented to the trial court, which then considered these matters as it resolved the case, then a reviewing court is required to treat the resulting trial court’s order as a ruling on a motion for summary judgment.

(Citations and punctuation omitted.) Johnson v. RLI Ins. Co., 288 Ga. 309, 310 (704 SE2d 173) (2010). The trial court in this case clearly considered matters outside the pleadings, including the federal Starr complaint and settlement, and thus we must treat the resulting order as a ruling on a motion for summary judgment. Id. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law, and we review a summary judgment grant de novo, construing the facts in favor of the respondent. Muhammad v. Allstate Ins. Co., 313 Ga. App. 531, 533 (2) (722 SE2d 136) (2012).

1. The plaintiffs assert that the federal complaint was procedurally and substantively defective and therefore did not bar their claims under the GFMCA. They also argue that the issue is not res judicata because defects in the federal complaint prevented the State from settling the claims. We need not determine whether the federal Starr complaint complied with what the plaintiffs describe as the “mandatory procedures” of the GFMCA or whether the Starr complaint lacked the specificity required by the GFMCA, because the record shows that the plaintiffs’ claims are barred by the doctrine of res judicata.

We have found no Georgia appellate cases addressing claims made under the GFMCA, although the body of federal law interpreting the almost-identical federal False Claims Act is extensive. We need not dive very deeply into the pool of federal False Claims Act case law to resolve the case before us, however, because the familiar doctrine of res judicata applies to bar this complaint.

The doctrine of claim preclusion (or res judicata) bars the parties to an action from relitigating matters that were or could have been litigated in an earlier suit. The doctrine facilitates the conclusive resolution of disputes by reducing the expense and vexation attending multiple lawsuits, conserving judicial resources, and fostering reliance on judicial action by minimizing the possibility of inconsistent decisions.

(Citation and punctuation omitted.) Shurick v. The Boeing Co., 623 F3d 1114, 1116 (II) (11th Cir. 2010) (final judgment in federal False Claims Act case precludes further litigation in state whistleblower case involving, among other things, “the same common nucleus of operative fact”). The common law doctrine of res judicata is codified in this state at OCGA § 9-12-40, and for the bar to apply, “three prerequisites must be satisfied: (1) identity of the parties or their privies; (2) identity of the cause of action; and (3) previous adjudication on the merits by a court of competent jurisdiction.” (Citations omitted.) Brown & Williamson Tobacco Corp. v. Gault, 280 Ga. 420, 421 (627 SE2d 549) (2006).

The three prerequisites necessary to bar further litigation in this case are met. First, the parties are in privity. The State became a plaintiff in the Starr suit, this suit was brought by the plaintiffs on behalf of the State, and both cases were filed against the same pharmaceutical companies. “A privy is generally defined as one who is represented at trial and who is in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right.” (Citation and punctuation omitted.) Brown & Williamson Tobacco Corp., 280 Ga. at 421 (1). In Brown, the executor and widower of a woman who died of lung cancer brought a product liability suit against Brown & Williamson, seeking compensatory and punitive damages. Our Supreme Court determined that the punitive damages claim was barred by the doctrine of res judicata, because the State had previously brought and settled a similar suit against the company. Id. at 421-423 (1). The court reasoned that, while the compensatory damages claim was personal, the State had brought its punitive damages claim on behalf of all of its citizens and therefore was in privity with the individual plaintiffs with regard to that claim. Id. Similarly, in this case, the State and the plaintiffs acting on behalf of the State were in privity.

Second, the cause of action in the prior suit is the same as the cause of action in the present case. While the plaintiffs correctly assert that the information in their complaint and exhibits is more specific to Georgia than the information contained in the Starr complaint, the actions alleged in the federal suit clearly encompass those alleged in the state suit. In the federal action, the State sought compensatory damages to reimburse the treasury for funds spent by the State for healthcare costs attributable to the pharmaceutical companies’ improper promotion and marketing of Risperdal. In the current proceeding, the plaintiffs also seek compensatory damages on behalf of the State to reimburse the treasury for funds spent by the State for healthcare costs attributable to the pharmaceutical companies’ improper promotion and marketing of Risperdal. Thus, we “find identity of the causes of action.” Brown & Williamson Tobacco Corp., 280 Ga. at 423 (2).

The third prerequisite for the application of the doctrine of res judicata requires that the prior claim be adjudicated on the merits by a court of competent jurisdiction. OCGA § 9-12-40. The plaintiffs argue that this prerequisite is not met because the Starr settlement was conditioned on the termination of this case, and this case has not terminated. The State points out that the settlement was not conditioned on the actual termination of this case, but rather on the State’s agreement “to dismiss with prejudice any state law claims which the State has authority to dismiss” and not to “engage [ ] in litigation” with the defendants regarding the covered conduct. The federal court granted the State’s request to dismiss with prejudice thé claims against these defendants as described in the settlement agreement. “A voluntary dismissal with prejudice constitutes a judgment on the merits for purposes of res judicata with regard to the same parties and the same cause of action.” (Citation and punctuation omitted.) Dept. of Transp. v. Revco Discount Drug Centers, 322 Ga. App. 873, 875 (1) (746 SE2d 631) (2013).

Decided March 23, 2016

Harris Penn Lowry, Jeffrey R. Harris, Darren W. Penn, Stephen G. Lowry, Yvonne S. Godfrey, JedD. Mantón; Franklin Law, James B. Franklin; Clark, Oxendine & Sauls, Michael C. Clark, for appellants.

Samuel S. Olens, Attorney General, Nancy B. Allstrom, Senior Assistant Attorney General, SaraE. Vann, Kevin D. Bradberry, Assistant Attorneys General, for appellee.

As all three prerequisites to finding this action barred by res judicata have been met, the trial court did not err in granting the State’s motion to dismiss.

2. The plaintiffs’ remaining enumerations of error questioning the procedural and substantive validity of the Starr complaint under the GFMCA are rendered moot by our holding in Division 1.

Judgment affirmed.

McMillian, J., concurs. Ray, J., concurs in judgment only.

       The individual plaintiffs are Steven Jordan, J. Dorsey Smith, M. J. Collins, Melvin Boykin, Barbara Dekle, Sheryl Thompson, Millie Reddish, and Mary Morton. The defendant pharmaceutical companies are Janssen Pharmaceuticals, Inc., Janssen Products, L.P., and Johnson & Johnson.

       The appellate record in this case was originally transmitted under seal, and after briefing the plaintiffs moved this court to unseal it. The State objected, and we remanded the case for the trial court to determine whether to unseal all or part of the record. Jordan v. State of Georgia, Case No. A15A0137. Upon remand, the trial court entered an order unsealing the record, and the case was returned to this court for resolution on the merits.

       Starr’s initial complaint was filed in April 2004.


source: Caselaw Access Project

author: Rickman, Judge.

license: Public Domain

text:
    A15A1803.
    In the Interest of T. S., a child.
    (785 SE2d 32)
   Rickman, Judge.

T. S. appeals the juvenile court’s order transferring his delinquency case to superior court for prosecution. He contends that the juvenile court erred in transferring the case to superior court because: (1) the legal standard the court used was either wrong, or correct but misapplied; (2) the court failed to consider the requisite statutory factors in deciding whether to transfer the case to superior court; (3) the court’s decision to transfer the case was based solely on the nature of the alleged offenses; and (4) there was no evidence to support a transfer. We affirm.

On appeal from an order transferring a case from juvenile court to superior court, the function of this Court is limited to ascertaining whether there was some evidence to support the juvenile court’s determination that the requirements of [former] OCGA § 15-11-30.2[] have been met, and absent an abuse of discretion, we will affirm the order transferring jurisdiction.

(Citation omitted.) In the Interest of D. C., 303 Ga. App. 395 (1) (693 SE2d 596) (2010).

In November 2014, a delinquency petition was filed in the Glynn County Juvenile Court alleging that 15-year-old T. S. committed acts which, if committed by an adult, would have constituted burglary, two counts of criminal trespass, three counts of theft by taking, and six counts of participation in criminal gang activity. The juvenile court conducted a bifurcated hearing to determine whether to transfer the case to superior court for prosecution. First, the court received evidence primarily as to whether there was probable cause that T. S. committed the acts. Second, the court received evidence and argument regarding factors it should consider when determining to transfer a juvenile’s case to superior court.

In the first (probable cause) phase of the transfer hearing, evidence was adduced that on October 6, 2014, T. S. and two individuals — one man was an adult and the other individual was unidentified — broke into a home and stole two flat screen televisions and a gaming system. The homeowner testified that she had left home that day around 7:45 a.m., and returned just past noon to find that her home had been burglarized.

Surveillance cameras that police had set up in a wooded path in the area of the burglarized home captured T. S. and the two individuals carrying televisions through the path between the time the homeowner left home and the time she later returned home. One still photograph taken from the surveillance camera recording depicted T. S. holding what may have been a gun. The adult perpetrator confessed to law enforcement his involvement in the incident, and he identified himself and T. S. in surveillance photographs. The adult perpetrator told law enforcement that the idea to commit the burglary originated with T. S.; that T. S. had opened the kitchen window of the home to gain entry; and that once T. S. was inside, he opened a door for his co-perpetrators to enter. The adult perpetrator also told police that he was a member of a particular gang, and a photograph depicted the adult making a gang hand signal and wearing a gang “flag.” A law enforcement officer testified that he was familiar with T. S. and that prior to the burglary, he had frequently observed T. S. in the company of other gang members. The juvenile court found probable cause that T. S. had committed the offenses enumerated in the juvenile petition.

In the second phase of the transfer hearing, the following evidence was adduced. A court officer with the Glynn County Juvenile Court testified that in December 2010, T. S. was placed on an informal adjustment for ungovernable behavior; in August 2013, he was placed on probation for committing an act which, if committed by an adult, would have constituted misdemeanor theft by taking; in October 2013, he violated the terms of his probation by failing to report and was placed on probation for two years; and in August 2014, he tested positive for marijuana and again violated the terms of his probation and was placed on probation. After T. S. violated his probation in October 2013, a pick-up order was issued for T. S.’s apprehension in November 2013; T. S. turned himself in on that pick-up order in August 2014. Thus, for approximately nine months, T. S. had not reported to or otherwise accounted for his whereabouts with the juvenile probation office. After T. S. had turned himself in, the juvenile court reluctantly released T. S. into the custody of his grandmother, who testified that T. S. stayed with her for about a week before he left her home and did not return. Thereafter, the acts underlying the subject of this appeal occurred.

A juvenile court officer testified that while on probation, T. S. failed to complete a moral recognition group therapy program because after attending two sessions he tested positive for marijuana and fled. The court officer further testified that T. S. was “kicked out [of school] due to poor attendance and tardiness,” at the beginning of the school year, in August 2014. Thereafter, he was supposed to attend an alternative school, but he never did. At the time of the transfer hearing (which took place in December 2014), T. S. was not enrolled in school. There was no indication that T. S. had an Individualized Education Program (IEP) or had been enrolled in any special education program. T. S. scored 11 on a predisposition risk assessment, indicating that he was at a high risk of re-offending. DFCS had previously been involved with T. S. at least twice.

The court officer opined that T. S. knew right from wrong, and that T. S.’s prospects for rehabilitation were good if he had stable housing and would “stay put, stay in place, don’t run, [and] had a family member who could adequately care for him and supervise him” and give him a “push.” The court officer testified that given T. S.’s current charges and his living situation at the time the underlying incident occurred, the court officer did not know of any other program or service that the juvenile court could use to rehabilitate T. S. or keep him from re-offending.

T. S.’s grandmother testified that T. S. needed “discipline in his life,” and daily supervision to ensure that he abided by the conditions of his probation and was “doing the right thing.” She testified that she did not have full control of T. S.; that she worked the swing shift at a hospital; and that she could not adequately supervise T. S. on her own. She stated: “I can’t do it by myself.”

T. S.’s mother, who lived in Jacksonville, Florida, testified that for the last five to six years, she had been in a custody battle for her children with T. S.’s father. But when the court asked her whether she wanted to take T. S. home with her that day, she replied, “No. Not at this time, I don’t,” explaining that she would take him back if he got “some help.” T. S.’s mother testified that T. S.’s stepmother did not want him in the home and that, thus, T. S.’s father put him out. T. S.’s father was not at the hearing and did not otherwise testify.

The court continued the hearing for a later date, explaining that it wanted to “hear from the Department of Juvenile Justice” about “other services that we don’t offer ... to make an adequate decision on whether or not to transfer [T. S.] to Superior Court.” At the continuation of the hearing, the juvenile court program manager for the Department of Juvenile Justice (“DJJ”) for the counties of Glynn and McIntosh testified. The program manager testified that once a child was committed to the custody of DJJ, a screening hearing was conducted to determine the “best possible placement for treatment and rehabilitation.” The program manager provided the court with a list of privately owned providers that provide therapeutic group home services as well as behavioral health treatment services, for children committed to DJJ. The providers were independently owned; they were not subsidiaries of DJJ. And each provider had its own criteria for deciding whether a child was amenable to treatment at its facility and whether it would accept a child. The program manager testified that notwithstanding the fact that there were no programs specifically targeted for treating “gang involvement . . . [i]f the gang involvement is part of a larger need, then it’s possible that it can be addressed.” The program manager further testified, however, that although some providers have accepted children with street gang charges, most tended not to do so. Typically, children at a high risk to re-offend “end[ ]up going to YDC,” if no contracted-treatment provider accepted them. The YDC offered mental health treatment, supervision, and substance abuse treatment.

According to T. S.’s psychological evaluation, T. S. was dysfunctional, but “functioning intellectually in the average range.” He was in the “Borderline range” regarding his general cognitive ability, and general verbal comprehension. He was in the “Low Average range” for general perceptual reasoning abilities, and general processing speed abilities. The psychological evaluation confirmed a prior diagnosis of Attention-Deficit/Hyperactivity Disorder and depression. Other diagnoses included Conduct Disorder and Cannabis Use Disorder.

1. T. S. contends that the juvenile court erred in transferring the case to superior court because the legal standard the court used was either wrong or correct but misapplied. We disagree.

In considering a motion to transfer a child to superior court, pursuant to former OCGA § 15-11-30.2 (a) (3), the juvenile court inits discretion determined, among other things, whether there were reasonable grounds to believe that “[t]he interests of the child and the community require that the child be placed under legal restraint and the transfer be made.” Under the new Juvenile Code, a similar provision is found in OCGA § 15-11-561 (c) (2014), which provides that after consideration of certain relevant evidence, “the court may determine that . . . the welfare of the community requires that criminal proceedings against such child be instituted.”

This Court has recognized that,

[i]n cases ... in which the State does not rely on non-amenability to treatment as the basis for transfer, the transfer order does not have to reflect why the juvenile is not amenable to treatment. Instead, the order must balance the child’s interest in treatment in the juvenile system, including but not limited to amenability to treatment, against the community’s interest in treating the child as an adult.

(Citation and punctuation omitted.) In the Interest of D. C., 303 Ga. App. at 398-399 (1) (c).

(a) Wrong standard. T. S. challenges the following excerpt in the “Conclusions of Law” section of the transfer order: “the interests of the child to be treated in the juvenile justice system are outweighed by the rights of the community to have this case tried in Superior court.” T. S. argues that the challenged excerpt reflects that the court erroneously “weighed [against T. S.’s interests] the rights of the community, rather than the community’s interests or welfare.” But on the same page of the transfer order, just above the conclusions of

law section, the court wrote:

[A] side from the said delinquency history, the court, in its discretion, determines that the egregious nature of these most recent offenses which [T. S.] is alleged to have committed, are sufficient, whether or not [T. S.] is amenable to treatment in the juvenile system, for the court, in its discretion, to find that his interest is [sic] being prosecuted for these juvenile offenses in the juvenile justice system are outweighed by the interest of the community to have him prosecuted on these charges in the Superior Court.

(Emphasis supplied.) Therefore, we find no merit in T. S.’s contention that the court’s later reference to “rights” instead of “interest” or welfare reflected that the court failed to apply the requisite balancing test.

(b) Correct standard but misapplied. T. S. argues that even assuming the court used the correct standard, it was misapplied.

T. S. appears to take issue with the court’s determination that “The public is entitled to know that some juveniles are involved in very serious criminal offenses.” He argues that this “right to know” determination infringed upon his fundamental right to privacy. But by statute, the juvenile court is expressly authorized to determine, in its discretion and after considering specific factors, whether to transfer a child to superior court. See OCGA § 15-11-561. As T. S. made no challenge below to the court’s statutory authority to make his case public, his claim on appeal that doing so violated his right to privacy is waived. See generally State v. Burks, 240 Ga. App. 425, 428 (2) (523 SE2d 648) (1999).

2. T. S. contends that the juvenile court erred in transferring the case to superior court because the court failed to consider and failed to make factual findings regarding the requisite statutory factors listed in OCGA § 15-11-562 in deciding whether to transfer the case to superior court. This argument is belied by the record.

Pursuant to OCGA § 15-11-562 (a) (2014), the criteria the juvenile court shall consider in determining whether to transfer an alleged delinquent child to superior court includes, but shall not be limited to:

(1) The age of such child; (2) The seriousness of the alleged offense, especially if personal injury resulted; (3) Whether the protection of the community requires transfer of jurisdiction; (4) Whether the alleged offense involved violence or was committed in an aggressive or premeditated manner; (5) The culpability of such child including such child’s level of planning and participation in the alleged offense; (6) Whether the alleged offense is a part of a repetitive pattern of offenses which indicates that such child may be beyond rehabilitation in the juvenile justice system; (7) The record and history of such child, including experience with the juvenile justice system, other courts, supervision, commitments to juvenile institutions, and other placements; (8) The sophistication and maturity of such child as determined by consideration of his or her home and environmental situation, emotional condition, and pattern of living; (9) The program and facilities available to the juvenile court in considering disposition; and (10) Whether or not a child can benefit from the treatment or rehabilitative programs available to the juvenile court.

At the transfer hearings, evidence was adduced as to each statutory factor, and the court heard argument as to each factor. In addition to the pertinent evidence set forth above, the law enforcement officer to whom the adult perpetrator had confessed his involvement was an expert in the area of gang investigation, and he testified that he had extensive “street hours” of dealing with gang members in Glynn County. He testified that there had been a rash of burglaries in the area near the burglary in the underlying case, and that when gangs started coming into Glynn County, the occurrence of minors carrying weapons began “getting worse and worse.” This scenario, the officer testified, increased the danger to the community.

The record, as a whole, reflects that the court “engaged in the appropriate balancing test in finding that a transfer was warranted in this case.” In the Interest of J. M. S., 334 Ga. App. 142, 147-148 (2) (778 SE2d 391) (2015). Therefore, T. S.’s argument is without merit.

3. T. S. contends that the juvenile court erred in transferring the case to superior court because the court’s decision to transfer the case was based solely on the nature of the alleged offenses. Specifically, T. S. argues that when the juvenile court determined in its order that the egregious nature of the offenses was sufficient for the court to find that his interest in being prosecuted in the juvenile justice system was outweighed by the interest of the community to have him prosecuted in superior court, “whether or not [T. S.J is amenable to treatment in the juvenile justice system” (emphasis in original), the court disregarded his amenability to rehabilitation in juvenile court and based its transfer decision solely on the nature of the alleged offenses. This contention lacks merit.

As addressed in Division 2, supra, the record reflects that the court engaged in the appropriate balancing test in finding that a transfer was warranted in this case. Regarding the particular error enumerated here, the record shows that the court considered whether other programs or services in the juvenile justice system might be available to help T. S. Moreover, in the sentence preceding the one challenged here, the trial court found that

[a] review of [T. S.’s] prior delinquency history with the Glynn County Juvenile Court and his behavior and compliance with his probated sentences, indicates that it is doubtful that he is amenable to treatment in the juvenile system, as he has not complied with most, if not all, of the terms of his probated sentences.

Consequently, the order demonstrates the court’s express consideration of T. S.’s delinquency history with the juvenile court and his behavior and noncompliance with the terms of prior probated sentences, aside from the nature of the offenses T. S. is alleged to have committed. Therefore, there is no merit to this contention.

4. T. S. contends that the juvenile court erred in transferring his case to superior court because there was no evidence to support a transfer. Specifically, T. S. argues that “any finding that he is not amenable to rehabilitation is contrary to the evidence and without evidence to support it.”

In this case, the juvenile court did not find that T. S. was not amenable to rehabilitation; instead, the court “doubted” that he was — a finding the court was authorized to make, given the evidence. See In the Interest of J. M. S., 334 Ga. App. at 144-146 (1). T. S. had been noncompliant by failing to abide by conditions of his probations, and despite his history in the juvenile court system and various measures having been taken to help him, he continued to engage in criminal activity that escalated in severity. The juvenile petition alleged that T. S. committed acts which, if committed by an adult, would have constituted burglary and multiple counts of criminal trespass, theft by taking, and participation in gang activity. There was evidence that T. S. kept the company of gang members; one of the perpetrators in the underlying case was an adult gang member; and T. S. possibly carried a firearm during the commission of the underlying alleged acts, which he instigated. “And here, even assuming [T. S.] was amenable to treatment, the juvenile court’s determination that the community’s interest in transferring his case to superior court outweighed [T. S.’s] interest in remaining in the juvenile system was supported by the evidence.” Id. at 146 (1); see In the Interest of D. C., 303 Ga. App. at 397-398 (1) (b).

Decided March 23, 2016.

Meredyth L. Yoon, Nicole L. Roberts, for appellant.

Jacquelyn L. Johnson, District Attorney, Whitney J. Hunter, Assistant District Attorney, for appellee.

T. S. has presented no basis to disturb the juvenile court’s ruling. Therefore, for all of the foregoing reasons, we affirm the juvenile court’s order transferring T. S.’s case to superior court.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

       Ga. L. 2013, p. 294, § 1/HB 242, significantly revised Chapter 11 of Title 15, effective J anuary 1,2014, for juvenile proceedings commenced on or after that date. The provisions of the new Code addressing the transfer of a juvenile to superior court for criminal trial are found in OCGA §§ 15-11-561; 15-11-562. The proceedings at issue occurred in 2014 and are thus addressed under the new Juvenile Code. See Walker v. State, 330 Ga. App. 872, 874, n. 3 (769 SE2d 602) (2015); In the Interest of M. J., 326 Ga. App. 574, n. 1 (757 SE2d 184) (2014).

       T. S. was born January 9, 1999.

       Youth Development Campus.


author: BARNES, Presiding Judge.

text:
    A15A1851.
    MMA CAPITAL CORPORATION v. ALR OGLETHORPE, LLC et al.
    (785 SE2d 38)
   BARNES, Presiding Judge.

This case arose after the 2009-2010 reorganization of loans related to a major property development in Savannah. In 2013, lender MMA Capital Corporation and MMA/PSP Savannah River, LLC, sued ALR Oglethorpe, LLC, and several related limited liability companies (collectively, ALR) and six individuals, contending that the defendants had breached several contracts and failed to pay sums due under a promissory note. The trial court granted MMA Capital’s motion for summary judgment on the promissory note and the individual defendants’ guaranties of that note, and both sides appealed.

The defendant borrowers argued in their direct appeal that the trial court erred in granting summary judgment to MMA Capital because the promissory note lacked consideration, and erred in denying their motion to sever and dismiss or transfer the claims for lack of venue. This court affirmed without opinion that portion of the trial court’s order finding that the defendants were liable under the notes and guaranties and denying their motion to sever and dismiss or transfer. ALR Oglethorpe v. MMA Capital Corp., 334 Ga. App. XXIII (November 20, 2015) (unpublished). In this cross-appeal, MMA Capital argues that the trial court made errors in calculating the interest award, failed to award a definite amount of late fees, and failed to rule on its claim for attorney fees. For the reasons that follow, we vacate the trial court’s judgment and remand the case for further proceedings consistent with this opinion.

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

(Citation omitted.) Salahat v. Fed. Deposit Ins. Corp., 298 Ga. App. 624, 625 (680 SE2d 638) (2009).

So viewed, the record shows that an affiliate or predecessor of ALR assembled 55 acres along the south bank of the Savannah River for a development project known as the Savannah River Landing. ALR eventually consolidated its financing with a $61 million loan from MMA Capital, secured by the property. Title issues arose, delaying the development, and in 2008, ALR defaulted on the loan. MMA Capital restructured the loan and increased the available credit to $81 million, but ALR’s attempts to begin high-rise construction projects with other parties were hampered by a national credit crisis. In February 2009, ALR informed MMA Capital that it would not be able to make its next interest payment.

ALR and MMA Capital then negotiated a series of contracts, ending with a settlement agreement between lenders MMA Capital and PSPIB Realty US Inc. and borrowers ALR, Oglethorpe Landings Holdings, LLC, and Ambling Oglethorpe Landings, LLC, under which a new entity, MMA/PSP Savannah River, LLC, would take title to the property. ALR and MMA Capital entered into an indemnity agreement, under which ALR’s completion bonds continued. In addition, ALR and Ambling Oglethorpe Landings gave MMA Capital a $2 million promissory note, and the individual defendants gave personal guaranties on both the indemnity agreement and the note. All of these contracts, which were signed on February 16, 2010, are cross-referenced and lengthy.

After the sale closed on February 16, 2010, ALR stabilized the site, but apparently no further development work occurred during the next several years, although the parties disagreed about which entity was responsible for the failure to proceed. In August 2011, the City threatened to call ALR’s bonds to complete the project. On January 3, 2012, MMA’s attorney made a demand for payment from ALR under the indemnity agreement, based on the City’s threat to call the bonds. In February 2013, MMA Capital filed this suit, claiming among other things that ALR had defaulted on the promissory note and the individual defendants were liable on their guaranties of the note.

The defendants answered, denying liability. Following discovery, MMA Capital moved for summary judgment against ALR on the note and against the individual defendants on their personal guaranties, seeking the unpaid principal, interest, late fees, and attorney fees. In support of its motion, MMA Capital attached the affidavit of its vice president identifying the note as a business record and calculating the outstanding principal balance, the unpaid interest at both the pre- and post-default rates, the per diem accrual rates, and the late fees. The defendants argued in response that MMA Capital had breached the party’s settlement agreement and that the note was therefore not supported by consideration. In an order issued on February 19, 2015, the trial court found that the note was due and in default, and that the higher default interest rate and late fees were not unenforceable penalties. It awarded MMA Capital the principal amount sought “plus unpaid contract interest through 8/16/13,” which is the date that the vice president signed the affidavit, but did not address MMA’s claim for attorney fees.

1. MMA Capital argues that the trial court erred in failing to award pre-default and post-default interest up to the date of the judgment instead of the date the vice president signed the affidavit submitted in support of MMA’s motion for summary judgment. The defendants respond that an award of post-default interest of an additional three percent, in addition to the pre-default interest rate of five percent, is an unenforceable penalty. They also argue that any injury is not difficult or impossible to estimate accurately under the note.

The promissory note provided that interest on the principal of $2 million accrued at the fixed rate of five percent per year. Payments of a certain amount would be due quarterly, beginning February 1, 2010, with a balloon payment of the remaining principal and accrued interest due on January 1, 2020. If a default occurred and was not cured within the time allotted, “default interest” would accrue at a rate of either an additional three percent per year or the highest rate of interest permitted by law, whichever was the lesser amount.

The trial court found that MMA Capital had established a prima facie right to recover the amount owed on the loan. Collins v. Regions Bank, 282 Ga. App. 725, 726 (639 SE2d 626) (2006) (plaintiff who produces promissory note and shows its execution is entitled to judgment as matter of law unless defendant can establish defense). The trial court also found that the default interest rate of three percent in addition to the contract interest rate of five percent was not an unenforceable penalty, but did not identify the specific sum of interest to which MMA Capital was entitled.

“If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby.” OCGA § 13-6-7.

In deciding whether a contract provision is enforceable as liquidated damages, three factors must exist. The injury must be difficult to estimate accurately, the parties must intend to provide damages instead of a penalty, and the sum must be a reasonable estimate of the probable loss. “A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.” Restatement (Second) of Contracts, § 356 (1).

(Citation omitted.) AFLAC, Inc. v. Williams, 264 Ga. 351, 354 (2) (444 SE2d 314) (1994).

“[T]he enforceability of a liquidated-damages provision in a contract is a question of law for the court.” (Citation omitted.) Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989). And the burden is on ALR as the defaulting party to show that the provision is a penalty. Id.

The defendants’ argument that the post-default interest rate constitutes an unenforceable penalty is unpersuasive. In holding that the post-default interest provision in the note was not a penalty, the trial court cited OCGA §§ 7-4-2 and 7-4-18. OCGA § 7-4-18 (a) provides that an entity charging more than five percent interest per month (sixty percent interest per year) is guilty of a misdemeanor, but otherwise, under OCGA § 7-4-2 (a) (1) (B), parties to a loan of $250,000 or more may “establish by written contract any rate of interest, expressed in simple interest terms or otherwise, and charges to be paid by the borrower or debtor.” (Emphasis supplied.) The note in this case set the post-default interest rate at only three percent higher than the pre-default rate of five percent, and the total rate of eight percent per year is well within the legal limit of sixty percent. We have previously affirmed summary judgments to lenders even when the post-default interest rate was substantially higher than the predefault rate, although we have found no cases specifically addressing whether a contract providing for payment of a higher interest rate after default is a penalty or not. See, e.g., Dawson Pointe, LLC v. SunTrust Bank, 312 Ga. App. 338 (718 SE2d 570) (2011) (pre-default interest rate was 0.25 percent over prime rate; post-default rate was additional 18 percent over prime).

MMA Capital also presented sufficient evidence for the trial court to have calculated the total amount of interest due up to the date of the judgment. In her affidavit, MMA’s vice president presented evidence showing the amount of contract interest at five percent that was due on August 16, 2013 ($288,274.32), the amount that would accrue each day thereafter at the rate of five percent ($266.92), the amount of default interest at three percent that was due on August 16, 2013 ($172,964.59), and the amount that would accrue each day thereafter at the rate of three percent ($160.15). See Dawson Pointe, 312 Ga. App. at 339 (“[W]e have held that a bank employee’s uncontested affidavit setting forth the amount of interest that had accrued authorized an award of interest as a matter of law, where, as here, the defendant never came forward with contrary evidence.”).

Accordingly, while we affirm the trial court’s finding that MMA Capital was entitled to an award of pre- and post-default interest, we must vacate the judgment and remand this case for the trial court to perform those calculations and issue a judgment setting forth the amount of interest due as of the date of its judgment, rather than the amount due as of the date that the affidavit of MMA’s vice president was signed. See Ware v. Renfroe, 231 Ga. App. 529, 533 (3) (499 SE2d 907) (1998) (remanding for calculation of prejudgment interest).

2. MMA Capital also argues that the trial court erred in failing to award it a specific amount of late fees, despite finding the applicable contract provision enforceable. The defendants respond that the late fee provision is an unenforceable penalty, because damages from the breach of a promissory note are easy to calculate, because the provision appears to be designed to deter nonpayment rather than estimate damages, and because the sum is not a reasonable estimate of probable loss.

The note provided:

Alate charge shall be due and payable in the amount of five percent (5%) of the amount of any installment or payment of interest and/or principal not paid within five (5) days of the date on which said installment or payment was due____ Maker acknowledges and agrees that the late charge herein provided is not a charge in the nature of interest imposed for the use of money advanced under this Note; rather, the late charge is imposed to compensate Holder for the expense, inconvenience and economic frustration experienced by Holder as a result of Maker’s failure to make timely payments due hereunder, and is a reasonable forecast and estimate of Holder’s actual damages and loss on account of such delinquent payment.

Regarding this contract provision, the trial court held:

Upon review of the record and the “Late Charge” provision in the New Note, the Court finds the provision reasonable and intended by the Parties to the New Note. In such a complex transaction and large loan amount of the New Note for the Savannah River Landing Project the injury caused by the breach of non-payment would be difficult to estimate. In executing the New Note and doing so with the advice of Counsel, the Defendants intended for this Late Charge to apply and thought it was... reasonable. The Court finds that the enforceability of this provision is allowed.

While the defendants state that the injury caused by any breach of the note could easily be calculated, they do not then describe any such easy calculations. Although the defendants also argue that the late fees provision is “in no way a pre-estimate of the probable loss stemming from a default” on the note, they do not address the fact that the note itself recites that five percent of the past-due amount was a reasonable estimate of damages and loss resulting from a late payment. Nor do the defendants acknowledge the contract’s recitation that the late fee was to compensate MMA Capital for the expense, inconvenience, and economic frustration that would be caused by ALR’s failure to make timely payments. “[The defendants] did not introduce any alternative figures as to what would be a reasonable pre-estimate of the loss and, on appeal, point[ ] us to no authority from which we could determine that the amount of liquidated damages constitutes a penalty.” Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641, 644 (4) (507 SE2d 823) (1998).

“Of course, whether a provision represents liquidated damages or a penalty does not depend upon the label the parties place on the payment but rather depends on the effect it was intended to have and whether it was reasonable.” Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 228 (227 SE2d 340) (1976). “[W]hat the courts look at is the real intention of the parties as it is to be gathered from the language they have used.” Martin v. Lott, 144 Ga. 660, 663 (87 SE 902) (1916). One consideration is whether the contract allows both liquidated and consequential damages:

A non-breaching party who has agreed to accept liquidated damages cannot elect after a breach to take actual damages should they prove greater than the sum specified. The breaching party cannot complain that the actual damages are less than those specified as liquidated damages. The liquidated damages become the maximum as well as the minimum sum that can be collected.

(Citation and punctuation omitted.) Southeastern Land Fund, 237 Ga. at 230. Another consideration is whether the amount of the late fee is “so unreasonable, when applied to the other paragraphs of the contract (if it can be applied to them), as to render it void as being excessive and unreasonable.” Floding v. Floding, 137 Ga. 531, 534 (73 SE 729) (1912). Here, the note does not give MMA Capital the right to sue ALR for additional consequential damages in addition to the late fee, and the specified amount (five percent of each late payment, which totaled $38,305.70) is not excessive and unreasonable as a matter of law.

While the trial court did not err in finding the note’s late fee provision to be enforceable, it did err in failing to award to MMA Capital the amount of late fees due as of the date of the judgment. The information necessary to make that determination is contained within the affidavit of MMA’s vice president. Accordingly, the trial court is also directed upon remand to determine the amount of the late fees due as of the date of the judgment, based on the evidence MMA Capital presented.

3. Finally, MMA Capital argues that the trial court erred in failing to award it reasonable attorney fees under either the note or OCGA § 13-1-11. The note provides: “In the event this Note, or any part thereof, is collected by or through an attorney-at-law, Maker agrees to pay all costs of collection including, but not limited to, reasonable attorney[ ] fees.” MMA Capital sought attorney fees under the terms of the note and under OCGA § 13-1-11 in its complaint and in its motion for summary judgment. MMA Capital argues on appeal that it complied with the notice requirements of the statute and that, under the version of OCGA § 13-1-11 in effect when the note was signed, it is entitled to attorney fees of fifteen percent of the first $500 owed and ten percent of the amount due in excess of $500. Because the trial court did not rule on MMA’s attorney fee claim, however, the defendants are correct that this court has nothing to review as far as the merits of the attorney fee claim, which remains pending below.

Decided March 23, 2016.

Bouhan Falligant, Todd M. Baiad, Andrew H. Dekle; Savage & Turner, Kathryn H. Pinckney, for appellant.

Ellis, Painter, Ratterree & Adams, Paul W. Painter, Jr., Tracy A. O’Connell, for appellees.

Judgment vacated and case remanded with direction.

Ray and McMillian, JJ., concur.

       The related LLCs are Oglethorpe Landing Holdings, LLC, Ambling Oglethorpe Landings, LLC, Ambling Development Partners Holdings, LLC, Ambling Development Holdings, LLC, Ambling Land & Resort Holdings, LLC, Oglethorpe Funding, LLC, and The Villages at Oglethorpe Landings, LLC. The latter two entities were later dismissed by consent with prejudice.

       Stephen M. Brooks, Eddy Benoit, Jr., Michael H. Godwin, Rhett J. Holmes, R. Ryan Holmes, and F. Kevin King.

       In a separate action, ALR and individual investors sued several property sellers for failing to disclose the existence of an easement that burdened a parcel of real estate, and this court affirmed without opinion the trial court’s grant of summary judgment to the sellers. ALR Oglethorpe v. Peeples, 334 Ga. App. XXIII (November 20, 2015) (unpublished). ALR also sued several other entities involved in the defective title search, and this court affirmed the trial court’s grant of summary judgment to the defendants in that case. ALR Oglethorpe v. Henderson, 336 Ga. App. 739 (783 SE2d 187) (2016).


author: MILLER, Presiding Judge.

text:
    A15A2049.
    In the Interest of J. A. B. et al., children.
    (785 SE2d 43)
   MILLER, Presiding Judge.

The mother of J. A. B., K. J. D., and A. D. D. appeals from the juvenile court’s order terminating her parental rights. We granted the mother’s application for discretionary review, and now conclude that the juvenile court’s order is insufficient to enable appellate review. Therefore, we vacate the termination order and remand this case.

As a threshold matter, we note that the new Juvenile Code applies to these proceedings even though the State filed the initial deprivation petition in 2013, because the State’s termination petition was filed in September 2014, after the new Code went into effect. In the Interest of C. J. V., 333 Ga. App. 844, 847-848 (2) (777 SE2d 692) (2015) (applying the new Code to a case in which the deprivation petition was filed in 2013 but the termination petition was filed in 2014). Therefore, we proceed under the current Georgia law.

We view the evidence in the light most favorable to the juvenile court’s disposition and determine whether any rational trier of fact could have found by clear and convincing evidence that the mother’s right to custody should have been terminated. In the Interest of A. B., 311 Ga. App. 629 (716 SE2d 755) (2011). Nevertheless, in conducting our review, we must proceed

with the knowledge that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.

(Citations and punctuation omitted.) In the Interest of C. J. V., 323 Ga. App. 283 (746 SE2d 783) (2013).

So viewed, the evidence shows that J. A. B. was born in July 2007, K. J. D. was born in September 2009, and A. D. D. was born in May 2011. In January 2013, the mother, the children, and the mother’s fiancé were driving through Georgia when a police officer stopped their vehicle in Canton. After finding marijuana in the car, the police officer arrested the mother’s fiancé on drug charges and three counts of cruelty to children. The mother was also arrested for possession of less than one ounce of marijuana and three counts of cruelty to children. Aside from this brief interaction, the family has no connection to Georgia.

Based on the arrests, the Georgia Division of Family and Children Services (“DFCS”) took the children into custody on January 13, 2013. The juvenile court issued an order for shelter care the next day and appointed a guardian ad litem. DFCS placed the children in foster care because the mother was incarcerated and the children had no relatives in Georgia.

On February 8, 2013, the children were adjudicated deprived. The initial case plan called for reunification with the mother and temporary placement with a relative. In December 2013, DFCS placed the children with their grandmother in Indiana. In February 2014, the mother’s case plan was changed to nonreunification.

In September 2014, DFCS filed a petition to terminate the mother’s parental rights, which the juvenile court granted on February 2, 2015. The grandmother continues to have custody of and is willing to adopt the children, who are thriving in her care and are meeting all of their developmental milestones.

In its termination order, the juvenile court considered the testimony of the DFCS caseworker, the court-appointed special advocate, the mother, and her fiancé. The juvenile court made the following factual findings and conclusions of law: (1) the children are dependent under OCGA § 15-11-2 (22) (A), the cause of the dependency is likely to continue and not be remedied, and the continued dependency will or is likely to cause serious physical, emotional, mental, and moral harm to the children; (2) the mother failed to complete all of the case plan requirements, including showing proof of housing and employment, and completing a psychological evaluation; and (3) the mother visited the children only sporadically, seeing her children five out of the fifteen scheduled visits and not at all for the prior sixteen months. The juvenile court then stated, “[T]he Court, therefore, finds that the mother has abandoned her children.” The juvenile court cited the subsection of the termination statute addressing abandonment and explained, “[B]ased on their abandonment and the mother’s unresolved issues, the children continue to be dependent. . . . The Court finds that it is in the children’s best interest [s] that the mother’s parental rights be terminated. . . .”

On appeal, the mother argues that the juvenile court erred in finding that the children are dependent and that the dependency is likely to continue or will not be remedied. She further argues that the juvenile court erred in finding that the dependency will or is likely to cause serious physical, mental, emotional, or moral harm to the children.

Under OCGA § 15-11-310 (2014),

(a) In considering the termination of parental rights, the court shall first determine whether one of the following statutory grounds for termination of parental rights has been met:
(4) A child is abandoned by his or her parent; or
(5) A child is a dependent child due to lack of proper parental care or control by his or her parent, reasonable efforts to remedy the circumstances have been unsuccessful or were not required, such cause of dependency is likely to continue or will not likely be remedied, and the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to such child.

A “dependent child” is defined as an abused or neglected child in need of the court’s protection, or a child without a parent, guardian, or legal custodian. OCGA § 15-11-2 (22) (A), (C) (2014). “Abandonment” is defined as “conduct on the part of a parent. . . showing an intent to forgo parental duties or relinquish parental claims.” OCGA § 15-11-2 (1) (2014). To evaluate intent, the juvenile court may consider conduct such as failure to communicate meaningfully or regularly visit with the child for at least six months, OCGA § 15-11-2 (1) (A), (B), and failure to participate in a court-ordered case plan, OCGA § 15-11-2 (1) (D). Importantly, to constitute abandonment, the conduct must actually show an intent to abandon in light of the rest of the record.

Once the juvenile court determines the statutory basis for termination, the juvenile court must consider whether termination is in a child’s best interests. OCGA § 15-11-310 (2014). “When the court finds that any ground set out in Code Section 15-11-310 is proved by clear and convincing evidence and that termination of parental rights is in a child’s best interests, it shall order the termination of the parent’s rights.” OCGA § 15-11-320 (a) (2014).

The statutory basis for termination is the prerequisite finding. In the Interest of D. T. A., 312 Ga. App. 26, 34 (2) (717 SE2d 536) (2011). Indeed, the statute itself mandates that the juvenile court must make a specific finding as to why the parents’ rights are being terminated. Under OCGA § 15-11-310, dependency and abandonment are separate grounds for termination. In this case, however, it is unclear whether the juvenile court intended to rely on dependency or abandonment to support its decision because the juvenile court appears to address dependency and abandonment interchangeably. For example, its order encompasses findings of dependency with the conclusion that the children have been abandoned. We cannot determine from the juvenile court’s order whether it intended to find abandonment, dependency, or both as the statutory ground for termination. See In the Interest of D. T. A., supra, 312 Ga. App. at 33 (1) (d) (explaining that the juvenile court is required to make factual findings and “state not only the end result of that inquiry but the process by which it was reached”) (citation and punctuation omitted). Even the parties seem unsure of the juvenile court’s order, focusing their arguments exclusively on dependency without mentioning abandonment, even though the juvenile court’s order discusses abandonment several times.

Moreover, we have serious concerns with the factual record before us and whether it supports a finding of termination. For example, termination based on dependency requires a showing that continued dependency “will cause or is likely to cause serious physical, mental, emotional, or moral harm.” OCGA § 15-11-310 (a) (5). DFCS argues that the mother did a poor job of caring for her children. Even if this were a sufficient basis to remove the children from her care, it does not rise to the level of proof necessary to terminate the mother’s parental rights. See In the Interest of J. S. B., 277 Ga. App. 660, 663 (2) (d) (627 SE2d 402) (2006) (noting the “vague testimony” of the DFCS caseworker and explaining that a mother’s inability to provide care does not mean her relationship with the children is detrimental).

For the juvenile court to base its decision on abandonment is also problematic on this record. Simply announcing that the mother has failed to visit the children, without taking into account the geographic difficulties and other obstacles that arose after DFCS removed the children, is hardly enough to support such a drastic result. Cf. In the Interest of K. E. A., 292 Ga. App. 239, 240 (663 SE2d 822) (2008) (finding abandonment where noncustodial parent was unable to see children while incarcerated and then failed to take required steps upon his release). Nor can we condone basing a termination decision on the parent’s alleged failure to submit paperwork to DFCS where there was other evidence to show compliance with the reunification plan. This literal form over substance is inconsistent with the burden placed on DFCS to support a termination proceeding.

DFCS relies on the testimony of the caseworker — the third or fourth one involved in this case — and the brief questions posed to the Court-appointed special advocate to support its argument. Such a paucity of evidence can hardly be enough to bring about the termination of rights. The burden on DFCS in termination cases is a heavy one, with good reason.

Terminating a parent’s rights, and thus forever foreclosing the possibility of restoring the natural parent-child relationship, is governmental extinguishment of the parent and child’s constitutional right to familial relations. There is, then, no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. Accordingly, compelling facts are required to terminate parental rights.

(Punctuation and footnotes omitted.) In the Interest of S. O. C., 332 Ga. App. 738, 743 (774 SE2d 785) (2015).

These concerns underscore our inability to discern from the juvenile court’s order whether the juvenile court found dependency or abandonment as the basis for termination, and until the juvenile court has clarified its determination in this regard, we are unable to properly review the conclusion that termination is in the children’s best interests. In other words, the conflicting legal conclusions “preclud[e] an intelligent review of the merits of the appeal.” Grantham v. Grantham, 269 Ga. 413, 414 (1) (499 SE2d 67) (1998) (remanding a custody case for further factual findings and conclusions of law to enable appellate review). Accordingly, we vacate the termination order and remand this case to the juvenile court with direction to more fully develop the statutory ground or grounds for termination and the factual findings supporting its decision.

Decided March 23, 2016.

Carver & DeBord, Jenny L. Carver, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, Lisa Haddock-Malas, Assistant Attorney General, for appellee.

Judgment vacated and case remanded with direction.

Branch and Peterson, JJ., concur.

       The juvenile court also terminated the parental rights of J. A. B.’s putative father, and that ruling has not been appealed. The father of K. J. D. and A. D. D. is deceased.

       The new Juvenile Code usesthe term “dependent” instead of “deprived.” See OCGA § 15-11-2 (22); In the Interest of C. J. V., supra, 333 Ga. App. at 847-848 (2). The distinction does not alter our analysis here.


author: Boggs, Judge.

text:
    A15A2056.
    BALLWEG v. GEORGIA DEPARTMENT OF HUMAN SERVICES.
    (785 SE2d 47)
   Boggs, Judge.

Albert Ballweg appeals from the order of the Paulding County Superior Court denying his petition for permanent custody or visitation with respect to his two grandchildren. Because the trial court’s decision on custody was supported by some reasonable evidence and was not an abuse of its discretion, we affirm that portion of the order. But the trial court applied an incorrect standard in determining the merits of Ballweg’s petition for visitation, and we therefore vacate and remand that portion of the court’s order for further proceedings.

Ballweg is the paternal grandfather of two girls, nine and six years old at the time of the custody hearing. On March 12, 2014, after hearing evidence in January and February 2014, the Paulding County Juvenile Court terminated the parental rights of the mother and father of the children and placed the children in the custody of appellee Department of Human Services (“DHS”). After the hearings but before issuance of the termination order, Ballweg filed his “Petition for Immediate, Permanent Custody and/or Visitation Rights.” On December 19, 2014, a hearing on this petition was held, at which witnesses testified on behalf of both parties. The trial court ruled from the bench and then entered a written order, denying the petition in its entirety. Ballweg’s motion for new trial was denied, and he appeals, asserting three enumerations of error.

1. We first consider Ballweg’s complaint regarding an alleged ex parte communication between his grandchildren and the trial judge, based on a statement made by the judge when ruling on his motion for new trial. While indicating that the motion for new trial would be denied, the judge observed:

I knew the status of these two children and how terribly sad their lives were. Because at the time that we conducted the trial in December of 2014, a year prior to that in November of 20131 attended a Thanksgiving dinner for foster kids and foster parents. And these two babies said to me when they were introduced to me as this is the judge that’s handling your case, while you consider this ex parte if you want to. These two babies said to me please, Judge, get us adopted.

Ballweg knew from the inception of the custody matter that the trial judge presided over the underlying termination action, and thus had extensive knowledge of the children’s circumstances. In its order terminating the parental rights of the mother and father, a copy of which was admitted without objection at the custody hearing, the juvenile court found that “permanency is deemed to be the paramount wish and goal of these children, whether specifically articulated by them or not.” Knowing this, Ballweg agreed to have the same judge hear the custody matter while sitting by designation in superior court.

But even assuming without deciding that the reported statement by the children, made before the underlying termination trial and before this action was filed, constituted an ex parte communication, see Uniform Superior Court Rule 4.1 (“pending or impending proceeding”), Ballweg has waived this claim by failing to pursue it promptly.

Uniform Superior Court Rule 25.1 provides:

All motions to recuse or disqualify a judge presiding in a particular case or proceeding shall be timely filed in writing and all evidence thereon shall be presented by accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded. Filing and presentation to the judge shall be not later than five (5) days after the affiant first learned of the alleged grounds for disqualification, and not later than ten (10) days prior to the hearing or trial which is the subject of recusal or disqualification, unless good cause be shown for failure to meet such time requirements. In no event shall the motion be allowed to delay the trial or proceeding.

Here, Ballweg and his counsel were present in court on March 19, 2015, when the communication complained of was revealed. The trial court did not enter its written order until April 6,2015, and Ballweg’s notice of appeal was not filed until May 6, 2015. Despite Ballweg’s contention that a motion to recuse would have been pointless because “there was no where left to turn,” if he wished to pursue his claim, it was his obligation to interpose a timely motion in the trial court. See State v. Hargis, 294 Ga. 818, 821-822 (1) (756 SE2d 529) (2014). And he also was required to show “good cause” for failure to meet the time requirements for filing the motion. Christensen v. State, 245 Ga. App. 165, 171 (10) (a) (537 SE2d 446) (2000). Having done neither, Ballweg has not preserved this claim for review.

2. Next, we consider the trial court’s decision to deny custody to Ballweg and continue custody of the children with DHS. In custody disputes between two parties, neither of which is a parent of the child, the applicable standard is the best interest of the child. Stills v. Johnson, 272 Ga. 645, 650 (2) (533 SE2d 695) (2000); compare Strickland v. Strickland, 298 Ga. 630, 631 (1) (783 SE2d 606) (2016) (custody as between natural parent and close third party relatives decided under statutory presumption in OCGA § 19-7-1 (b.l) that custody with parent is in best interest of child).

In reviewing the custody ruling of the trial court, we are required to “ View the evidence in the light most favorable to the trial court’s decision.’ [Cit.]” Strickland, supra, 298 Ga. at 633 (1). So viewed, the record shows that the trial court determined that the children suffered from “severe emotional and behavioral issues and were acting out sexually,” for which they were receiving therapy, and that they had “serious and special needs.” In light of the children’s significant problems, the trial court further found that “it would not be in the best interest of these children to be placed in the custody and care of a man in the circumstances of” Ballweg, given his unstable living situation and his failure to act to intervene in the children’s “dysfunctional environment” for a period of almost a year.

The trial court’s findings were supported by some evidence, even though aspects of that evidence were disputed. The final order in the termination action, which was admitted without objection by Ballweg, details the foster parents’ and a psychologist’s descriptions of the children’s aberrant behavior. The children are under constant adult supervision, in the case of the younger child on a 24-hour basis, and will require long-term therapy. The children’s social services supervisor testified at the custody hearing and confirmed that the children have “extreme emotional and behavioral problems” for which they are receiving therapy.

Ballweg testified that he resided in Tennessee, although he had lived for the six months before the hearing in a daughter’s apartment in Georgia. In Tennessee, he lived in a travel trailer given to him by an elderly widow to whom he was recommended by a leader in their church to provide assistance with her farm property after her husband died and her house burned down. The landowner allowed Ballweg to live on her property rent-free in exchange for mechanical and maintenance work, including building a new house for her. He was not paid any wages or other money, and they lived “off the grid.” The trailer lacked working plumbing; when the children stayed with Ballweg they lived in the landowner’s home nearby, where they had a large bedroom.

Evidence was presented at the hearing that Ballweg had the children in his care for a four-month period in 2011. In December of that year, the mother came and took the children, saying she would bring them back shortly, but she failed to return them. Thereafter, Ballweg made no inquiries and took no action on behalf of the children until after they were removed from the parents’ custody in late 2012, explaining that he “was waiting on them [the parents] to do what they say they were going to do.” Ballweg and the landowner denied observing any unusual behavior by the children. Ballweg stated that he would rely on the landowner “to help [him] in matters like that,” although he was “not quite sure how [he] would address that.” He did not take the children to a doctor, despite knowing that one of them had a medical condition. Ballweg acknowledged that, if anything were to happen to the landowner, he would not “have any other place to go, no, if I have two children.” His income consists of Social Security and a small military pension, although he occasionally drives a taxi. In summary,

[t]his was a... protracted custody battle in which the parties presented sharply divergent accounts of the events. We are mindful that the Solomonic task of making custody decisions lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility. We will not disturb the superior court’s exercise of discretion if there is any evidence to support its decision. Our review of the record, summarized above, shows that the court’s ruling in this case was supported by evidence in the record. Thus, the court did not err by denying [appellant’s motion].

(Citations and punctuation omitted.) Smith v. Pearce, 334 Ga. App. 84, 92 (3) (778 SE2d 248) (2015). We therefore affirm the trial court’s decision with regard to custody.

3. Finally, Ballweg complains that the trial court applied an erroneous legal standard to his petition for visitation. “When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the plain legal error standard of review.” (Citations, punctuation and footnote omitted.) Mandt v. Lovell, 317 Ga. App. 168, 169 (728 SE2d 772) (2012), aff’d, 293 Ga. 807 (750 SE2d 134) (2013). In reaching its decision on visitation as between Ballweg and DHS, the trial court applied the provisions of OCGA § 19-7-3 (c) (1):

Upon the filing of an original action or upon intervention in an existing proceeding under subsection (b) of this Code section, the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation. In considering whether the health or welfare of the child would be harmed without such visitation, the court shall consider and may find that harm to the child is reasonably likely to result where, prior to the original action or intervention:
(A) The minor child resided with the grandparent for six months or more;
(B) The grandparent provided financial support for the basic needs of the child for at least one year;
(C) There was an established pattern of regular visitation or child care by the grandparent with the child; or
(D) Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.
The court shall make specific written findings of fact in support of its rulings.

The trial court explicitly followed this standard in its ruling from the bench, and in its written order, holding that “the Court finds that [Ballweg] has not met the tests of [OCGA §] 19-7-3.” This was error.

This court’s opinion in Perrin v. Stansell, 243 Ga. App. 475 (533 SE2d 458) (2000), is directly on point. There, we specifically held that this standard is not applicable as between third parties who are not parents, because “a third party never acquires the constitutional status of a parent, even if [it has] legal custody....” Id. at 477 (1) (a). We observed:

OCGA § 19-7-3 was adopted by the Georgia Legislature to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild over the objections of the child’s parent(s). The statute codified a standard for the trial courts to utilize in balancing the wishes of an alienated grandparent, the rights of the parents, and the interests of the child. Such standard requires the petitioning grandparent to meet an extremely high evidentiary burden, i.e., to demonstrate by clear and convincing evidence that the potential for harm to the child absent visitation is so great that it outweighs the parents’ constitutionally protected interests in raising that child.

(Citations, punctuation and footnote omitted; emphasis in original.) Id. at 476-477 (1) (a). While DHS argues that Ballweg cannot meet even the less stringent “best interest” test, we do not reach that issue, because it is apparent from the record that the trial court applied an incorrect legal standard in evaluating the evidence. The portion of its order relating to visitation therefore must be vacated.

For the reasons stated above, we affirm in part and vacate in part the judgment of the trial court and remand this case for further proceedings consistent with this opinion. In so doing, we make no determination as to the merits of the parties’ respective claims.

Judgment affirmed in part and vacated in part, and case remanded with direction.

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

Decided March 23, 2016.

The Manely Firm, Michael E. Manely, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, Joseph T Justice, Assistant Attorney General, for appellee.

       By agreement of the parties, this petition was heard and ruled upon by the juvenile court judge who heard the underlying termination action, sitting by designation as a superior court judge.

       We note that the trial court also had the authority under Uniform Superior Court Rule 24.5 (B) to consult with the children in chambers, with the consultation recorded and with attorneys having the option to attend but not to question the children.


author: RAY, Judge.

text:
    A15A2389.
    DAVIS et al. v. CRESCENT HOLDINGS & INVESTMENTS, LLC.
    (785 SE2d 51)
   RAY, Judge.

In this discretionary appeal, attorney Douglas J. Davis and his law firm, Belli Weil Grozbean & Davis, LLC, seek review of the trial court’s order denying, inter alia, their motion to set aside an amended award of attorney fees that was assessed against them. Specifically, they allege that the trial court erred (1) in finding that their motion to set aside was untimely; and (2) in finding that the original order awarding attorney fees was properly amended to' name them as sanctionable parties. For the reasons that follow, we reverse.

Generally, we review a trial court’s ruling on a motion to set aside for abuse of discretion. However, where the facts are undisputed and the issues presented on appeal involve questions of law, we review the trial court’s ruling de novo. See Barner v. Binkley, 304 Ga. App. 73, 74-75 (1) (695 SE2d 398) (2010).

The record shows that Davis filed a lawsuit on behalf of his client, Jay Phillip Grund, seeking to set aside a sheriff’s sale of Grund’s properties to Crescent Holdings & Investments, LLC (“Crescent”). At the time the lawsuit was filed, and for most of the proceedings thereafter, Davis’s law firm operated as a limited liability partnership, to wit: Belli Weil Grozbean & Davis, LLP (“BWGD, LLP”).

After several judges within the Cobb Judicial Circuit recused themselves from the case, the trial court eventually entered summary judgment in favor of Crescent. Thereafter, on August 12, 2011, Crescent filed a motion for attorney fees pursuant to OCGA §§ 13-6-11 and 9-15-14 (a) and (b). In its motion, Crescent alleged that “[the] Plaintiff’s allegations and claims lacked substantial justification, and the Plaintiff’s litigiousness unnecessarily expanded the proceedings and caused . . . Crescent unnecessary trouble and expense.” Referencing several examples of dilatory tactics, Crescent also alleged that “[c]ounsel for Plaintiff displayed a regular and systematic habit of delay and needless litigousness (sic)[,]” and that “[Crescent] was forced to expend significant resources on attorneys to defend this matter, which could not survive summary judgment, once a hearing was allowed to occur.”

While Crescent’s motion for attorney fees was pending, in 2012 Davis reorganized his law firm into a limited liability company, to wit: Belli Weil Grozbean & Davis, LLC (BWGD, LLC). The trial court held a hearing on Crescent’s motion for attorney fees on January 28, 2013, and Davis failed to appear. The trial court entered an order granting Crescent’s motion on March 5, 2013, assessing attorney fees against Grund and BWGD, LLP, jointly and severally. Thereafter, Davis filed a motion on behalf of his client seeking to set aside the award of attorney fees. Davis later filed a motion on behalf of himself and BWGD, LLC, seeking to withdraw as counsel of record for Grund. On October 7, 2013, the trial court entered a final order denying the motion to set aside the award of attorney fees, specifically directing the Clerk of Superior Court to close the case. The above-referenced orders regarding the trial court’s original award of attorney fees to Crescent were not appealed.

Almost a year later, on August 22, 2014, the trial court entered an amended order on the issue of attorney fees “to correct an error found in the original [o]rder[.]” In the amended order, the trial court substituted BWGD, LLC for BWGD, LLP and added Davis as a sanctionable party, assessing the award of attorney fees against Grund, BWGD, LLC, and Davis, jointly and severally. Davis and BWGD, LLC then filed a motion to set aside the amended order contending, inter alia, that the trial court lacked the authority to substantively amend the original award of attorney fees outside the term of court in which it was entered. The trial court denied the motion, and this discretionary appeal ensued.

1. In their first enumeration of error, Davis and BWGD, LLC contend that the trial court erred in finding that their motion to set aside the amended order was untimely filed. Although the trial court did make such a finding in its order denying the motion to set aside, it went on to address and rule on the merits of the motion. Accordingly, the issue presented in this enumeration is moot.

2. In related enumerations of error, Davis and BWGD, LLC contend that the trial court erred in denying the motion to set aside the amended order based on its finding that the court was authorized to amend the original order awarding attorney fees outside the term of court in which it was entered. We agree.

A trial judge’s inherent power to revise, correct, or modify a judgment “does not extend beyond the same term of court, unless a motion to modify or vacate, et cetera, was filed within the same term of court.” (Citation and punctuation omitted.) Tremble v. Tremble, 288 Ga. 666, 668 (1) (706 SE2d 453) (2011). Here, Crescent did not file a motion to modify or reconsider the original order awarding attorney fees within the term of court. Although “clerical errors and irregularities in the judgment, if they appear on the face of the record, may be corrected by the trial court even after the expiration of the term[,]” Tremble, supra (citation and punctuation omitted), the trial court cannot amend a judgment in any matter of substance after the expiration of the term of court in which it was rendered. See Taylor v. Peachbelt Properties, 293 Ga. App. 335, 337 (1) (667 SE2d 117) (2008).

Here, the record shows that Crescent sought an award of attorney fees against Grund and BWGD, LLP only. This is evident by the fact that BWGD, LLC did not exist at the time the motion for attorney fees was filed and, thus, could not have been involved in any of the sanctionable conduct. Moreover, Crescent prepared the original order awarding attorney fees that the trial court entered, and the order specifically states that the attorney fees were to be assessed against Grund and BWGD, LLP. Had Crescent intended to seek attorney fees from BWGD, LLC or from Davis personally, it could have amended its motion for attorney fees or named them as sanctionable parties in its proposed order. Crescent did neither. Instead, the original order was amended approximately one year later, well outside the term of court, to assess attorney fees against Davis and BWGD, LLC in place of BWGD, LLP.

In its ruling on the motion to set aside the amended order, the trial court concluded that the amendment was merely the correction of a misnomer and that it made no substantive changes to the original order. We disagree.

As a partnership, BWGD, LLP is an entity capable of being sued by a third party for any wrongful act of a partner who is acting in the ordinary course of the business of the partnership. OCGA § 14-8-13; see also OCGA § 14-8-15 (c) (a limited liability partnership may be held liable for a partner’s errors, wrongful acts, or misconduct). Thus, Crescent was entitled to recover attorney fees in this case directly from BWGD, LLP, as originally ordered. The substitution of BWGD, LLC for BWGD, LLP and the addition of Davis in the amended order was not merely the correction of a misnomer; it was the addition of new parties. Changing the parties to be sanctioned in an award of attorney fees is a substantive modification. See generally Kent v. Mitchell, 319 Ga. App. 115, 115-116 (735 SE2d 110) (2012) (where plaintiff obtained an arbitration award against a law firm, the trial court in the subsequent confirmation action was not authorized to enter judgment against the individual attorney, as the change in parties in the judgment was a substantive modification of the arbitration award).

Decided March 23, 2016.

Davis Lawyers, Douglas J. Davis, for appellants.

Ayoub & Mansour, John G. Mansour, Carolina D. Bryant; Johnson Legal Group, Robert E. Johnson, Jr., for appellee.

Here, when the trial court entered the amended order substituting BWGD, LLC for BWGD, LLP and adding Davis as sanctionable parties, it substantively modified the attorney fees award, and the trial court lacked the authority to do so outside the term of court of the original order. See Taylor, supra at 337 (l).

For the above reasons, the trial court erred in denying BWGD, LLC and Davis’s motion to set aside the amended order.

Judgment reversed.

Barnes, P. J., and Peterson, J., concur.

       Crescent did not object to the form of this order or seek any modification within the judicial term in which it was entered.

       In one of these motions, Davis referred to his law firm as BWGD, LLP, and in the other, he referred to his law firm as BWGD, LLC. In both motions, the physical address for the law firm was the same.

       Under OCGA § 15-6-3 (11), the court terms for the Cobb Judicial Circuit begin on the second Monday in January, March, May, July, September, and November.

       In ruling herein, we in no way mean to imply that Davis or BWGD, LLC would not have liability for the debts of BWGD, LLP under any alternative theory, such issue which is not presented in this appeal.