author: Dillard, Judge.

text:
    A11A1948.
    DELGADO v. COMBS.
    (724 SE2d 436)
   Dillard, Judge.

Elizabeth Delgado appeals from the Superior Court of Columbia County’s order granting sole legal and physical custody of her minor daughter, A. C., to the child’s father, Craig Combs, and denying Delgado visitation except as approved by Combs, thereby modifying an initial custody determination made by a court in Kansas. In several enumerations of error, Delgado contends that the trial court erred in its exercise of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). For the reasons set forth infra, we reverse the trial court’s order modifying custody of the parties’ daughter because the Georgia court lacked subject-matter jurisdiction.

The record reflects that on December 4, 2008, the District Court of Reno County, Kansas, issued an order approving a custody agreement between Delgado and Combs, in which the parties would share “joint care, custody, and control” of A. C., and Delgado would serve as her residential custodian except during defined visitation periods with Combs. Thereafter, on May 26, 2009, the same court entered an order transferring physical custody to Combs for the 2009-2010 school year, at which point Combs had relocated from Kansas to Georgia. This order further set forth a visitation schedule between Delgado and A. C. for the remainder of 2009 and 2010, and provided that the parties could agree to the child remaining with Combs in Georgia for the 2010-2011 school year.

On November 4, 2010, Combs filed an Emergency Petition to Modify Custody and Visitation in the Superior Court of Columbia County, Georgia, seeking to invoke the court’s jurisdiction pursuant to OCGA § 19-9-64 “to make a temporary emergency order to protect [A. C.] from being subjected to or threatened with mistreatment or abuse.” The petition admitted that an initial custody determination had been made in Kansas. It further alleged that Delgado’s last known address was in Hutchinson, Kansas, and that she had neither maintained contact with Combs and A. C. concerning her whereabouts nor exercised visitation with A. C. to the extent allowed by the Kansas order. The petition further alleged that Delgado was “believed to be using illegal substances, specifically methamphetamine.” Thus, Combs sought an award of sole legal and physical custody of A. C. and a temporary stay of Delgado’s visitation privileges “until such time as she demonstrates that she can maintain a stable residence and remain drug-free for a period of sixty (60) days.”

On this same day, Combs filed a Motion for Service by Publication, which also alleged that Delgado had made her whereabouts unknown, that she was believed to be “living a transient lifestyle in which she does not have a permanent address but moves from location to location in search of illegal drugs,” and that service could only be perfected by publication. Attached to the motion was an affidavit by Combs, in which he averred Delgado’s last known address to be in Hutchinson, Kansas; that he did not know her current place of residence; that he had “exercised due diligence, including calling known relatives and friends and searching on the internet to locate [Delgado]” but had been unsuccessful; and that Delgado was not residing in Georgia.

The trial court granted Combs’s motion for service by publication, and the clerk of court then sent a copy of the notice, order, and complaint by certified mail to what Combs claimed was Delgado’s last known address in Hutchinson, Kansas. On December 15, 2010, an affidavit of publication was filed with the court, showing that notice regarding the emergency petition had been published in a newspaper of general circulation in Columbia County, Georgia, on November 21 and 28 and on December 5 and 12.

The trial court conducted an emergency ex parte hearing on November 12, 2010 (before notice had even been published), at which point Combs’s attorney informed the court as follows:

Last week, Mr. Combs was called by the defendant and she has now informed him of her address. That is in Kansas. Now, that creates an issue, as far as jurisdiction is concerned, but it also — for purposes of service of the complaint, what we have done is we have gone ahead and sent — sent it up for personal service to Kansas to her county to the sheriff up there. That was sent up Tuesday of this week, so we’re attempting to serve her both personally and by publication now.

The trial court then indicated its intent to invoke emergency jurisdiction pursuant to OCGA § 19-9-64, but acknowledged that unless the court in Kansas “relinquishes it’s [sic] continuing jurisdiction, then it is a superior jurisdiction over this one, as long as either one of you or the child resides in Kansas.”

Nevertheless, following this hearing, the trial court entered an Emergency Ex Parte Order on December 7 and found that despite the initial custody determination by Kansas, jurisdiction and venue were proper in Georgia pursuant to OCGA § 19-9-64’s emergency jurisdiction. The court further found that it was appropriate to grant the requested emergency relief and ordered that primary physical custody of A. C. remain with Combs and visitation with Delgado be stayed until the court could issue a further order.

Thereafter, on January 7, 2011, a sheriffs entry of service was filed with the trial court, which showed that on November 17, 2010, personal service was attempted at the Hutchinson, Kansas address that Combs admitted Delgado had provided. The return of service reflected that “diligent search” was made for Delgado at that address but that she was “not to be found in the jurisdiction . . . .”

Finally, after holding a 30-day conference hearing on January 6, the trial court entered an order 20 days later, finding that personal service upon Delgado had been attempted but had failed and that service was made by publication. The court further found that Delgado had purposefully evaded service and that “such conduct should not and will not frustrate the jurisdiction of this [c]ourt.” Thus, the court determined that it had temporary emergency jurisdiction pursuant to OCGA § 19-9-64 (a) and jurisdiction to permanently modify the prior custody determination by Kansas pursuant to OCGA § 19-9-63.

In this regard, the trial court found that A. C. had been a resident of Georgia for at least 18 months and that neither parent resided in Kansas. The court further held that Delgado was in default for failing to file an answer, and accordingly, the court deemed the allegations of Combs’s emergency petition as admitted — i.e., that Delgado was using illegal drugs and had failed to maintain contact with A. C. The court ultimately modified Kansas’s initial custody determination by placing sole legal and physical custody of A. C. with Combs and limiting visitation with Delgado to only that approved by Combs.

On February 16, 2011, Delgado filed a Motion to Set Aside Judgment, in which she contended that she did not receive notice of the trial court’s proceedings. She argued that the final order should be set aside due to insufficient service, lack of personal jurisdiction, and lack of subject-matter jurisdiction. Additionally, the motion alleged that Delgado had informed Combs of her address on October 10, 2010, and that Combs could have obtained her whereabouts if he had actually questioned her friends and family. Delgado further detailed numerous instances of contact between Combs, Delgado, and their families during the pendency of the proceedings and asserted that Combs never indicated that he was searching for Delgado. Thus, Delgado argued that the trial court had permitted notice by publication based on a false affidavit by Combs.

Additionally, Delgado argued and averred that she resided at the address where personal service was attempted but that she lived in a trailer located at the back of the property. And although a card left at a house on the property in November 2010 advised Delgado that there were documents to pick up at the local courthouse, according to Delgado, the card did not specify the type of documents or what they concerned.

In response to Delgado’s motion to set aside judgment, Combs filed a second affidavit, in which he averred to having only one Kansas address for Delgado and that her mother had informed him in October 2010 that she was unsure of Delgado’s whereabouts. He further averred that he spoke to Delgado on November 3, 2010; learned of her new Kansas address on November 5; and attempted to personally serve her thereafter. Finally, he averred to speaking with Delgado in December 2010 and said that she questioned him then as to the court’s emergency ex parte order, which she had apparently received.

A hearing was held to address Delgado’s motion on February 25, at which point the trial court rejected each of her arguments and opined that in addition to its initial jurisdictional findings, Georgia was also a more convenient forum. And on March 24, 2011, the court entered a second amended final order to add its finding that Georgia “was a more convenient forum than Kansas in which to litigate the issue of modification” of the prior Kansas order. That same day, the court issued an order denying Delgado’s motion to set aside judgment and her request for attorney fees.

Finally, the record reflects that on March 30, 2011, the court in Kansas contacted the court in Georgia “to determine which state has jurisdiction over [A. C.] under the [UCCJEA].” During that communication, the parties were represented by attorneys in Georgia and attorneys in Kansas. The court in Kansas thereafter found that it had continuing, exclusive jurisdiction over the child custody issue between the parties pursuant to that state’s enactment of the UCCJEA, and questioned the Georgia court’s exercise of emergency jurisdiction and service of process. Ultimately, the Kansas court concluded that it “does not believe the Georgia court has jurisdiction under the [UCCJEA],” but nevertheless recognized that the Georgia court had stated that it “was not deviating from [the] Second Amended Order filed on March 24, 2011.” Thus, because the court in Kansas disagreed with the Georgia court and “believe[d] it retain [ed] exclusive continuing jurisdiction,” the Kansas court directed that, “while not in anyway [sic] deferring to Georgia or conceding the jurisdiction issue,” further proceedings would be stayed in that court pending this Court’s review of the case. This appeal follows.

Delgado argues that the trial court erred by (1) finding that it had subject-matter jurisdiction under the UCCJEA, (2) failing to specify a time limit in which Combs could obtain an order from the court in Kansas when the Georgia court exerted temporary emergency jurisdiction, (3) failing to communicate with the court in Kansas, (4) finding that it had personal jurisdiction over Delgado, (5) allowing service by publication, (6) finding that Delgado purposefully evaded service, and (7) denying her motion for attorney fees. In response, Combs concedes that enumerations of error (2) and (3) are correct but argues that they are moot because the court’s final order is permanent, not temporary.

At the outset, it is important to note that the National Conference of Commissioners on Uniform State Laws

promulgated the UCCJEA in 1997 to deal with the problems of competing jurisdictions entering conflicting interstate child custody orders, forum shopping, and the drawn out and complex child custody legal proceedings often encountered by parties [when] multiple states are involved.

Indeed, the UCCJEA has been called “a pact among states limiting the circumstances under which one court may modify the orders of another.” And Georgia adopted its version of the UCCJEA in 2001, replacing our state’s prior child custody act,

because, in application, imprecision in the prior act’s language often allowed for the existence of concurrent jurisdiction over custody matters in multiple states, thereby fostering competition among jurisdictions and forum shopping by the parties. The UCCJEA. . . remedies these earlier unintended problems by establishing continuing jurisdiction in the state in which the original custody decree was entered.

Kansas, too, has adopted the UCCJEA, and the versions adopted by Kansas and Georgia contain similar — if not identical — provisions.

In applying and construing the provisions of the UCCJEA as codified in Georgia, we must consider “the need to promote uniformity of the law with respect to its subject matter among states that enact it.” In accord with this mandate — and given the relative dearth of Georgia law on this subject — we will look to the cases of other jurisdictions when appropriate to resolve the issues in the case sub judice.

With these guiding principles in mind, we turn now to Delgado’s enumerations of error.

1. Delgado first argues that the trial court erred in finding it had subject-matter jurisdiction under the UCCJEA. We agree.

To begin with, we agree with Combs that because the trial court’s final order permanently modifies the custody arrangement between the parties, any arguments regarding temporary emergency jurisdiction are moot because the court could not use temporary emergency jurisdiction to take the action that it did. Thus, the question before this Court is whether the trial court lacked subject-matter jurisdiction to permanently modify the Kansas court’s order. And whether a trial court lacked subject-matter jurisdiction is “an issue of law that we review de novo for plain legal error.”

In facing a similar question to that before us, i.e., whether a court of its state properly exercised jurisdiction to modify the custody determination made by another state, the Supreme Court of Colorado recently held that

[b]ecause, under the UCCJEA, a new state may not modify an out-of-state child custody order unless it properly finds that the issuing state has been divested of jurisdiction (or declined to exercise it), the parent petitioning the new state to assume jurisdiction bears the burden of proving, not only that the new state would have jurisdiction to enter an initial child custody order, but that the issuing state has lost or declined to exercise jurisdiction as well.

We find this to be a reasonable burden to place upon such a petitioner. In that regard, OCGA § 19-9-63 provides that, except as allowed by the temporary emergency jurisdiction provision of the UCCJEA, a Georgia court may not modify a child-custody determination made by a court in another state unless

a court of this state has jurisdiction to make an initial determination under paragraph (1) or (2) of subsection (a) of Code Section 19-9-61 and . . . [t]he court of the other state determines it no longer has exclusive, continuing jurisdiction under Code Section 19-9-62 or that a court of this state would be a more convenient forum under Code Section 19-9-67; or . . . [a] court of this state or a court of the other state determines that neither the child nor the child’s parents or any person acting as a parent presently resides in the other state.

As to this first requirement, a Georgia court has jurisdiction to make an initial custody determination under the relevant portion of OCGA § 19-9-61 if Georgia is the child’s home state on the date the proceeding is commenced or if Georgia was the child’s home state within six months before the proceeding commenced and a parent or person acting as a parent continues to live in Georgia. Additionally, a court in another state must not have jurisdiction by reason of being the child’s home state or the court in the child’s home must have declined to exercise jurisdiction on the ground that Georgia is the more appropriate forum. Finally, the child and his or her parents, or the child and at least one parent or person acting as a parent, must have a significant connection with Georgia other than mere physical presence; and there must be substantial evidence available in Georgia “concerning the child’s care, protection, training, and personal relationships. ’ ’

And here, it is undisputed that Georgia satisfied the relevant “home state” requirements of OCGA § 19-9-61 (a). Nevertheless, Georgia failed to satisfy the remaining requirements of OCGA § 19-9-63.

First, Combs readily admitted before the trial court that the District Court of Reno County, Kansas, made an initial custody determination, and Kansas never determined that it no longer had exclusive, continuing jurisdiction. Additionally, although the Georgia court determined that it provided a more convenient forum than Kansas, OCGA § 19-9-63 (1) specifies that the out-of-state court must make this determination, not Georgia, and Kansas has never made such a determination. Accordingly, in the absence of a determination by the District Court of Reno County, Kansas, that it no longer had continuing, exclusive jurisdiction or that Georgia would be a more convenient forum, Georgia could only have subject-matter jurisdiction to modify the Kansas order if either a Georgia court or the court in Kansas determined that “neither the child nor the child’s parents or any person acting as a parent presently resides in [Kansas].” And here, although the Georgia court determined that neither A. C. nor her parents were presently residing in Kansas, it erred in doing so.

On the record before us — and on the state of the record before the trial court when its determination was made — Combs presented no evidence to support a finding that Delgado was not residing in Kansas. When the court entered its final order, the only evidence before it consisted of affidavits from Combs and his attorney in support of a motion for service of process by publication. And although Combs alleged in that motion, his supporting affidavit, and his emergency petition that Delgado’s whereabouts were unknown, he never alleged that she no longer resided in Kansas. Instead, he averred that her last known address was in Kansas, and personal service and service by certified mail were thereafter attempted in Kansas. Additionally, Combs’s attorney informed the court at the ex parte hearing that Delgado had informed Combs of her most current address, which was in Kansas.

Thus, when the court entered its final order and found that Delgado no longer resided in Kansas, there was a complete lack of evidence — let alone any allegation — to support same. Accordingly, the trial court erred in determining that Delgado no longer resided in Kansas, and the court lacked subject-matter jurisdiction to permanently modify the initial custody order entered in Kansas and erred in denying Delgado’s motion to set aside judgment. And because Kansas retains exclusive, continuing jurisdiction in this matter, we reverse the trial court’s order modifying the custody determination by that state.

2. Given our holding in Division 1, and with the exception of Delgado’s enumeration of error regarding the trial court’s denial of her requested attorney fees, we need not address Delgado’s remaining enumerations. With regard to the contention that the trial court erred in denying her attorney fees, we hold that it did not.

Delgado requested attorney fees pursuant to OCGA § 19-9-68 and OCGA § 19-9-92 under the UCCJEA and filed an affidavit in support of same without objection. The trial court denied both requests. Delgado contends that this was in error and that she is entitled to fees under both sections. We disagree.

OCGA § 19-9-68 provides that if a Georgia court declines to exercise its jurisdiction because a person seeking to invoke jurisdiction has engaged in unjustifiable conduct, the court

shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate.

Delgado argues that she was entitled to fees under this statutory provision because Combs’s “conduct was unjustifiable and the court should have declined to exercise jurisdiction and dismiss his petition.” Although we agree that the trial court should have declined to exercise jurisdiction (because there was no evidence — or allegation — to support its finding that Delgado no longer resided in Kansas), we disagree with Delgado that the court should have done so pursuant to OCGA § 19-9-68, and thus, we do not order an award of attorney fees.

First, the plain meaning of OCGA § 19-9-68 evinces that its intended focus concerns the requirements for subject-matter jurisdiction, specifically as it concerns the whereabouts of the child. Indeed, subsection (a) of this statutory provision makes clear that if a person has engaged in unjustifiable conduct to invoke jurisdiction, the trial court must decline to exercise that jurisdiction unless (1) the child’s parents or persons acting as parents agree to the exercise of jurisdiction, (2) a court in a state that otherwise has jurisdiction under OCGA § 19-9-61 through OCGA § 19-9-63 determines that Georgia is a more appropriate forum, or (3) no court of any other state would have jurisdiction under OCGA § 19-9-61 through OCGA § 19-9-63. Additionally, subsection (b) provides that if a Georgia court declines to exercise jurisdiction, the court “may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct. . . .” And here, any allegedly unjustifiable conduct on behalf of Combs appears to have been with regard to perfecting service of process upon Delgado. As detailed supra, the trial court properly found that Georgia was the child’s home state, but Combs never alleged or presented evidence that Delgado no longer resided in Kansas, which is why the trial court erred in so holding. Thus, the court’s improper invocation of subject-matter jurisdiction was due to its own error and not based on any allegedly “unjustifiable conduct” by Combs.

Furthermore, the official comment to UCCJEA § 208, upon which OCGA § 19-9-68 is modeled, specifies that the purpose of the section “applies to those situations [in which] jurisdiction exists because of the unjustified conduct of the person seeking to invoke it,” specifically, situations in which a parent abducts a child. Prior to Georgia’s codification of the UCCJEA, our interstate child custody act contained a similar provision, which awarded attorney fees when a parent took a child wrongfully or engaged in “similar reprehensible conduct.” And in the case sub judice, there are no allegations or evidence of the sort of “unjustifiable conduct” that would warrant an award of attorney fees pursuant to OCGA § 19-9-68.

As for OCGA § 19-9-92, this statutory provision specifies that the court

shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.

Delgado argues that because she should have prevailed in the lower court, she should have been awarded fees and expenses pursuant to this statute. Again, although we agree that Delgado should have prevailed below for the reasons set forth in Division 1, we do not agree that she is entitled to an award of expenses and fees pursuant to OCGA § 19-9-92.

The comment to UCCJEA § 312, upon which OCGA § 19-9-92 is modeled, provides that the act gives no special definition to the term “prevailing party” and that each state “will apply its own standard.” And the definitions in Georgia’s codification of the UCCJEA do not address the meaning of “prevailing party.” But at least one other state, Virginia, has determined that its codification of this section does not encompass awarding fees and expenses to a party prevailing on the issue of jurisdiction. And North Carolina has determined that the section does not apply to a prevailing party on a motion for contempt.

In complying with the mandate that we consider “the need to promote uniformity of the [UCCJEA] with respect to its subject matter among states that enact it,” we, too, hold that OCGA § 19-9-92 applies only to the prevailing party in an enforcement proceeding. Indeed, in Georgia’s codification of the UCCJEA, Part 1 contains general provisions, Part 2 contains jurisdictional requirements, Part 3 contains enforcement provisions, and Part 4 contains instructions for construing the act. Thus, as with the similar provisions in Virginia and North Carolina, OCGA § 19-9-92 appears in the portion of the UCCJEA that pertains to the enforcement of child custody decrees, i.e., Part 3. And like North Carolina, we consider our holding further bolstered by the fact that Part 2 contains its own provision for fees and expenses, namely OCGA § 19-9-68, discussed supra.

Decided February 29, 2012

Capers, Dunbar, Sanders, Bruckner & Bellotti, Amanda M. Bellotti, for appellant.

John A. Tisdale, for appellee.

Accordingly, Delgado is not entitled to an award of fees and expenses pursuant to OCGA § 19-9-92.

For all the foregoing reasons, we reverse the trial court’s judgment.

Judgment reversed.

Mikell, P. J., and Boggs, J., concur.

       OCGA § 19-9-40 et seq.

       We note that although the items were returned as undeliverable, the return-to-sender sticker reflected that Delgado had a new address in Hutchinson, Kansas.

       OCGA § 19-9-64 (a) permits a Georgia court to exercise “temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or a parent of the child is subjected to or threatened with mistreatment or abuse.” When an initial child custody determination has been made by a different state, OCGA § 19-9-64 (c) and (d) set forth additional requirements for the exercise of temporary emergency jurisdiction by a Georgia court. See OCGA § 19-9-64 (c) (mandating that the order specify “a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction”); OCGA § 19-9-64 (d) (mandating that upon being informed of a prior custody determination by another state, the Georgia court “shall immediately communicate with the other court”).

       We note that the certificate of service on this order reflects that it was mauled to Delgado at yet another address in Hutchinson, Kansas.

       The record reflects this as being the only attempt to personally serve Delgado at this address.

       These allegations were supported by affidavits from Delgado, her mother, and her mother’s boyfriend.

       The order was first amended in February 2011 to correct a clerical error which had stated that Delgado was served by publication in a newspaper of general circulation in Kansas when, in fact, publication was made in a Georgia newspaper.

        See Kan. Stat. Ann. § 23-37,202 (codified at that time at Kan. Stat. Ann. § 38-1349).

       We granted Delgado’s application for discretionary appeal on May 12, 2011.

        Friedman v. Eighth Judicial District Court of the State, 264 P3d 1161, 1165 (II) (A) (Nev. 2011) (punctuation omitted). See generally UCCJEA § 101 cmt. (stating that the purposes of the act are to (1) avoid jurisdictional competition, (2) promote cooperation between courts of different states, (3) discourage use of the interstate system to continue custodial controversies, (4) deter child abductions, (5) avoid relitigation of custody decisions in other states, and (6) facilitate enforcement of decrees by other states).

        In re Custody of A. C., 200 P3d 689, 691 (Wash. 2009).

        Hall v. Wellborn, 295 Ga. App. 884, 885 (673 SE2d 341) (2009) (punctuation omitted).

        See Kan. Stat. Ann. § 23-37,101 et seq. (previously codified at Kan. Stat. Ann. § 38-1336 et seq.).

        Compare OCGA § 19-9-40 et seq., with Kan. Stat. Ann. § 23-37,101 et seq. (previously codified at Kan Stat. Ann. § 38-1336 et seq.).

       OCGA § 19-9-101.

        See OCGA § 19-9-64.

       Appellate courts in other states have recognized that
      the UCCJEA might have more accurately used the term “exclusive venue” instead of “subject matter jurisdiction,” [because] subject matter jurisdiction concerns the type of controversy, not the facts of an individual case, and normally does not arise by virtue of one court declining jurisdiction in favor of another otherwise not empowered to exercise it.

        Friedman, 264 P3d at 1166 (II) (B) n.5 (punctuation omitted); see also In re Custody of A. C., 200 P3d at 691 n.3. Nevertheless, we, like those courts, will use the statutory language of subject-matter jurisdiction. See Friedman, 264 P3d at 1166 (II) (B) n.5; In re Custody of A. C., 200 P3d at 691 n.3.

        MacBeth v. State, 304 Ga. App. 466, 466 (696 SE2d 435) (2010).

        Brandt v. Brandt, 268 P3d 406, 413 (II) (B) (4) (¶ 33) (Colo. 2012).

        Cf. Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 590 (1) (690 SE2d 397) (2010) (“As the party seeking a divorce, Wife had to show that the trial court has jurisdiction over the res of the marriage which results from his or her domicile in this state for the six-month period preceding the filing of the action.” (punctuation omitted)).

        See supra note 3.

       OCGA § 19-9-63 (emphasis supplied).

       OCGA § 19-9-61 (a) (1).

       OCGA § 19-9-61 (a) (2).

       OCGA § 19-9-61 (a) (2) (A)-(B).

        See OCGA § 19-9-63 (1).

        See id. (“[A] court of [Georgia] may not modify a child custody determination made by a court of another state unless . . . [t]he court of the other state determines it no longer has exclusive, continuing jurisdiction ... or that a court of [Georgia] would be a more convenient forum . . . .” (emphasis supplied)).

        See OCGA § 19-9-63 (2) (“[A] court of [Georgia] may not modify a child custody determination made by a court of another state unless ... [a] court of [Georgia] or a court of the other state determines that neither the child nor the child’s parents or any person acting as a parent presently resides in the other state.”).

        Compare Hall, 295 Ga. App. at 885 (holding that Georgia lost exclusive, continuing jurisdiction to Florida when record showed, inter alia, that “both parents admitted in the Florida action that they and the child resided in Florida”); Russell v. Cox, 678 SE2d 460, 462-63 (S.C. Ct. App. 2009) (holding that South Carolina court, notwithstanding evidence that father and mother both resided in South Carolina, properly found that there was evidence that father was also a resident of Georgia, the state that issued initial custody decree, and court properly declined to exercise jurisdiction); In the Interest of P. F. B., 191 P3d 49, 52-53 (I) (Utah Ct. App. 2008) (trial court did not make formal findings of fact on issue but there was no assertion that any parent continued to reside in state that initially entered order, no facts appeared on record that would destroy jurisdiction, and parent whose whereabouts were unknown was last known to be outside of state that initially entered order).

        See State of Ga. v. Mozley, 182 Ga. App. 871, 874 (357 SE2d 313) (1987) (trial court’s findings of fact must be reversed as clearly erroneous when there is no evidence to support the findings); see also Brandt, 268 P3d at 410 (II) (¶ 16) (“The party asserting that the issuing state has lost exclusive continuing jurisdiction bears the burden of proof.”).

        See Ferrara v. Neill, 165 SW3d 539, 544 (Mo. Ct. App. 2005) (holding that Missouri lacked authority to modify New Mexico custody decree when, inter alia, mother continued to reside in New Mexico).

        See In the Interest of A. D. B., 232 Ga. App. 697, 698 (503 SE2d 596) (1998) (“When a trial court enters a judgment where it does not have jurisdiction, such judgment is a mere nullity; but an appeal from such an illegal judgment will not be dismissed but instead, the void judgment will be reversed.” (punctuation omitted)). Accord Darden v. Ravan, 232 Ga. 756, 758 (1) (208 SE2d 846) (1974).

       Delgado also sought an award of attorney fees under OCGA § 13-6-11, but she only appeals the denial of her request under OCGA § 19-9-68 and OCGA § 19-9-92. Accordingly, we do not address the court’s denial of her request pursuant to OCGA § 13-6-11.

       OCGA § 19-9-68 (c).

        See OCGA § 19-9-68 (a)-(b).

       OCGA § 19-9-68 (a) (l)-(3); see also OCGA § 19-9-61 (describing the criteria for Georgia to have jurisdiction to make an initial child custody determination, including that Georgia be the child’s home state); OCGA § 19-9-62 (providing the criteria for exclusive, continuing jurisdiction); OCGA § 19-9-63 (describing the criteria for Georgia to have jurisdiction to modify another court’s custody determination).

       OCGA § 19-9-68 (b).

        See OCGA § 19-9-61 (a) (1).

        See OCGA § 19-9-63 (2).

        See UCCJEA § 208 cmt. (further explaining that “[t]his section ensures that abducting parents will not receive an advantage for their unjustifiable conduct”); see also In re Parental Responsibilities of L. S., 257 P3d 201, 208-09 (III) (C) (Colo. 2011) (discussing codification of this section in Nebraska and that state’s definition of “unjustifiable conduct” as a situation in which “one party without consent improperly removes the child from the party with the right to custody” (punctuation omitted)).

        See Graham v. Hajosy, 159 Ga. App. 466, 466-67 (283 SE2d 683) (1981) (awarding attorney fees when “defendant husband illegally retained the child in Georgia without the mother’s consent” and “the defendant’s wrongful withholding of custody of the child necessitated her traveling to Georgia to . . . regain child custody” (punctuation omitted)); see also Etzion v. Evans, 247 Ga. 390, 392 (1) (276 SE2d 577) (1981) (“A noncustodial parent who illegally seizes a child or illegally detains a child at the end of a visitation period is not to be given sanctuary by our courts. If it is in the child’s best interest that child custody be changed, the noncustodial parent must, instead of snatching that child, seek a change of custody where jurisdiction lies.” (citations omitted)); Reid v. Adams, 241 Ga. 521, 526 (1) (246 SE2d 655) (1978) (“A nonresident legal custodian should not be forced to relitigate questions of custody in the jurisdiction where the physical custodian is wrongfully holding a child when the legal custodian seeks to enforce his rights in habeas corpus.”).

       OCGA § 19-9-92 (a).

       UCCJEA § 312 cmt.

        See OCGA § 19-9-41; OCGA § 19-9-81.

        See Tyszcenko v. Donatelli, 670 SE2d 49, 55 (II) (Va. Ct. App. 2008) (holding that similar section in Virginia did not permit award of fees when mother prevailed in action to change jurisdiction).

        See Creighton v. Lazell-Frankel, 630 SE2d 738, 740-41 (N.C. Ct. App. 2006) (holding that similar section in North Carolina did not permit award of fees and expenses when father prevailed in action to hold him in contempt).

       OCGA § 19-9-101.

        See Creighton, 630 SE2d at 740-41 (holding that similar section’s placement in portion of UCCJEA that relates to enforcement limited the award of fees and expenses to a prevailing party in such a proceeding); Tyszcenko, 670 SE2d at 55 (II) (same).

        See OCGA §§ 19-9-40 to -51.

        See OCGA §§ 19-9-61 to -70.

        See OCGA §§ 19-9-81 to -97.

        See OCGA §§ 19-9-101 to -104.

        See Tyszcenko, 670 SE2d at 54 (II) (holding that if provision similar to OCGA § 19-9-92 applied to all proceedings under the UCCJEA, “a separate statute would not be needed to address the award of attorney’s fees under the circumstances described” in the provision similar to OCGA § 19-9-68).


source: Caselaw Access Project

license: Public Domain

text:
    A11A1956.
    STROZIER v. THE STATE.
    (724 SE2d 446)
   Dillard, Judge.

Following a trial by jury, Daryl Strozier was convicted of forcible rape. Strozier appeals this conviction, arguing that (1) the trial court improperly denied his request to learn the identity of an informant who witnessed events leading up to the rape, (2) the evidence against him was insufficient, and (3) the State failed to establish venue. For the reasons set forth infra, we affirm Strozier’s conviction.

Viewed in the light most favorable to the jury’s verdict, the record shows that late one night in May 1995, Daryl Strozier, who was 15 at the time, and three other young men — Patrick McFarland, Michael Carwell, and Willie McFarland — were walking the streets of their neighborhood when they happened upon the victim. What occurred next was disputed at trial.

According to the young men, all of whom testified, the encounter with the victim began amicably when she offered to have sex with Strozier in exchange for help obtaining crack cocaine. All four described a situation in which the victim and Strozier hugged and kissed before walking into a nearby wooded area. And while the victim admitted at trial that she had used a significant amount of cocaine the night before and had been drinking alcohol on the night in question, she vehemently denied offering sex for drugs. Instead, she testified that the young men approached her on the street and pulled her into a wooded area, where she was brutally beaten and raped by Strozier and Patrick McFarland.

Despite the men’s consistent claim that the encounter with the victim began on amicable terms, only Strozier testified that the intercourse between the two was or remained consensual, although he admitted that Patrick McFarland then raped the victim and that the two beat her afterward when she “wouldn’t leave him alone.” The other men, however, described a far different turn of events.

Patrick McFarland testified that he followed Strozier and the victim into the woods and that the victim began to fight Strozier and yelled for him to stop. He then described a horrific scene in which he and Strozier both raped the victim, striking her about the head and laughing while the other took his turn. McFarland also claimed that the victim was further beaten after she pulled Strozier’s ear.

As for Michael Carwell, he testified that after Strozier and the victim entered the woods, he could hear the victim yelling for Strozier to “stop” and “quit.” He further testified that the victim was hit after Patrick McFarland went into the woods, and that he witnessed the victim fighting Strozier and yelling for him to stop as he struck her while engaging in forcible intercourse. Additionally, Carwell witnessed Strozier dragging the victim naked across the ground and both Strozier and Patrick McFarland striking her in the head and kicking her.

Willie McFarland testified to much of the same — i.e., that the victim began to resist Strozier and to yell when the two reached the wooded area. And although he did not remain at the scene for the entire encounter, McFarland did see Strozier holding the victim down, both with their clothing removed.

Finally, the victim detailed her version of what transpired in the woods. She described being dragged into the bushes while the men struck her and called her names, all the while laughing. In the darkness, she could only see Strozier’s face. And although she fought and screamed, she was pulled by her legs and hair, struck on the ear so hard that her eardrum perforated, kicked in the face, and bit on the shoulder and chest by Strozier. The victim also described how she was hit in the head and held down as Strozier forced himself upon her.

When the horrific ordeal ended, the victim eventually made her way to a nearby house and obtained help. The officer who responded found her beaten, bloodied, and hysterical. She was transported to a hospital, and the treating physician testified to observing injuries consistent with a recent beating. The doctor described — and photographic evidence reflected — bruises and marks consistent with repeated blows to the back, scratches from being dragged and/or kicked, a perforated eardrum, a shoe imprint on the victim’s backside, and “extreme trauma” to the genital area. The doctor found no indication of consensual intercourse. And the victim was so emotionally traumatized that she required hospitalization for nearly two weeks.

Thereafter, law enforcement identified the crime scene after the victim’s grandmother returned to the area where she had left her granddaughter on the night in question. The victim’s belongings were recovered from the scene, including a bra that had been torn apart from the front, a pair of underwear, a wristband, and a broken bracelet. Officers canvassed the area and were able to identify Carwell and Willie McFarland through “street talk” regarding the attack. Strozier and Patrick McFarland were then identified and arrested based on the police interviews and physical evidence. The victim subsequently identified Strozier in a photographic lineup, and he was thereafter tried as an adult and convicted by a jury. This appeal follows.

At the outset, we note that after a defendant has been convicted, “we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence.” And on appeal, we do not weigh the evidence or determine witness credibility, “but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” With these guiding principles in mind, we will now address each of Strozier’s enumerations of error in turn.

1. Strozier first argues that he was denied due process when the trial court refused to require the identification of an informant who witnessed the events leading up to what transpired in the woods. Strozier argues that the informant served as an “informer witness,” that his or her identification should have been revealed as the “only witness not also involved” in the attack, and that the trial court committed an error of constitutional magnitude when it refused to require such identification. We disagree.

OCGA § 24-9-21 and OCGA § 24-9-27 create a “privilege against disclosure of the identity of a confidential informant who was not an eyewitness to the offense that forms the basis for the prosecution, although he or she may have seen the defendant... at an earlier time, but did not participate in the offense.” Indeed, the nondisclosure of a confidential informant’s identity “encourages assistance, protects the future usefulness of the informant, and protects the safety of the informant, and is a matter of sound public policy within the statutes.”

Moreover, whether or not a confidential informant’s identity is discoverable “rests within the sound discretion of the trial court, which discretion can be exercised only after the trial court has heard evidence as to the relevance, materiality, and necessity of disclosure from the defense.” And when the issue concerns disclosing the identity of an informer-witness (a person used to establish facts upon which to base a prosecution) and/or an informer-participant (a person used to obtain evidence), the trial court must apply the Roviaro v. United States balancing test if, pursuant to Brady v. Maryland, the informer’s identity is required to be disclosed. On the other hand, our Supreme Court has explicitly held that “if the trial court initially determines that the informer was merely a pure tipster, his identity would be privileged, and no further inquiry would be necessary.”

In the case sub judice, Strozier filed a motion to reveal the identity of an informant for the State, but law enforcement opposed identifying the informant and requested that the court conduct an in camera review of the informant’s proposed testimony. Strozier sought to interview the informant regarding the victim’s demeanor prior to the alleged assault. Specifically, he argued that the other witnesses to her behavior — Patrick McFarland, Willie McFarland, and Michael Carwell — lacked credibility due to their involvement in the attack, but the State countered that neither Carwell nor Willie McFarland were actual participants. The State further argued that the informant’s testimony would be consistent with other testimony — i.e., that the victim first encountered Strozier while seeking drugs — and that the informant did not witness the actual rape.

The trial court conducted an untranscribed, in camera interview with the informant and then stated on the record that nothing indicated that the informant was an eyewitness to the attack, and that the informant had only seen the victim when she was on the street with the men and was of the opinion that the victim was intoxicated and seeking drugs at that time. Thus, the trial court determined that it was not necessary to identify the informant and denied Strozier’s motion accordingly.

Under the foregoing circumstances, the trial court correctly denied the motion to reveal the informant’s identity when the informant was a mere tipster. And while the confidential informant saw the victim and Strozier interact prior to entering the wooded area, the informant did not witness the actual rape — the offense forming the basis of Strozier’s prosecution — and the informant was not a participant in the attack. Thus, the trial court did not err in denying the motion and was not required to conduct further inquiry.

2. Strozier next argues that the evidence against him was insufficient to sustain a conviction for forcible rape. We disagree.

On appeal, Strozier more or less attacks the credibility of the victim by highlighting differences between her account of what transpired on the night in question and the descriptions given by Strozier, the other men who were present, and statements the victim made to police that same night. He further argues that the victim’s testimony was insufficient to establish that any acts of violence resulted in the sexual encounter and that the victim’s beating did not occur until after the two had engaged in intercourse. These arguments are wholly without merit.

The offense of rape is committed when a person “has carnal knowledge of. . . [a] female forcibly and against her will. . . .” It is well established that “a victim’s testimony, without more, is sufficient to sustain a conviction for rape . . . .” And here, the evidence against Strozier, including the victim’s testimony, the testimony of eyewitnesses to the act, the examining physician’s testimony, and the photographic evidence, all detailed supra, overwhelmingly supported a conviction for forcible rape. It was for the jury “to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” Accordingly, this enumeration is likewise without merit.

Decided February 29, 2012.

Jimmonique R. S. Rodgers, for appellant.

3. Finally, Strozier contends that the State failed to establish venue. Once again, we disagree.

OCGA § 17-2-2 requires that criminal actions “be tried in the county where the crime was committed, except as otherwise provided by law.” Venue is a jurisdictional fact and “an essential element in proving that one is guilty of the crime charged.” The State must prove venue beyond a reasonable doubt, and the failure to do so “renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.” And here, the testimony of the victim’s grandmother first established the exact location of the crime scene. The victim later testified in detail as to where she encountered Strozier, where she was pulled into the woods and raped, and where she escaped, and she testified that the events on the night in question took place in Troup County. As Strozier has offered no evidence to the contrary, “we conclude that the State met its burden of proving beyond a reasonable doubt that venue of the crime charged is properly in [Troup] County.” Strozier’s enumeration is without merit.

Accordingly, for ah the foregoing reasons, we affirm Strozier’s conviction.

Judgment affirmed.

Mikell, P. J., and Boggs, J., concur.

Peter J. Skandalakis, District Attorney, Andrea A. Newton, Assistant District Attorney, for appellee.

        See Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       We note that Strozier’s appeal was apparently “orphaned” years ago and has reached us by way of the trial court’s having granted a motion for out-of-time appeal.

       It is undisputed that cocaine and alcohol were found in the victim’s system on the night of the rape.

       Patrick McFarland pleaded guilty to rape prior to testifying against Strozier.

       According to the men, the victim calmly left the woods with them before suddenly fleeing. But the victim said that she ran away from the men and eluded chase.

       The victim’s grandmother also testified to finding a shirt that belonged to the victim, but she threw it away out of embarrassment because it appeared to be covered in dried blood and a white substance.

         Powell, 310 Ga. App. at 144 (punctuation omitted).

        Id. (punctuation omitted).

        Leonard v. State, 228 Ga. App. 792, 794 (2) (492 SE2d 747) (1997); see also OCGA § 24-9-21 (4) (“There are certain admissions and communications excluded on grounds of public policy. Among these are[ ] . .. [slecrets of state . . . .”); OCGA § 24-9-27 (d) (“No official persons shall be called on to disclose any state matters of which the policy of the state and interest of the community require concealment.”).

        Leonard, 228 Ga. App. at 794 (2); see also Thornton v. State, 238 Ga. 160, 163 (2) (231 SE2d 729) (1977) (“The public policy underlying [the informer’s privilege] is to protect and encourage the flow of information to law enforcement officials.”).

        Leonard, 228 Ga. App. at 795 (2).

       353 U. S. 53, 62 (I) (77 SC 623, 1 LE2d 639) (1957) (“The problem [of disclosure] is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”).

       373 U. S. 83, 87 (83 SC 1194, 10 LE2d 215) (1963) (“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process [when] the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”).

        See Moore v. State, 187 Ga. App. 387, 389 (2) (370 SE2d 511) (1988). See generally Thornton, 238 Ga. at 163-65 (2) (discussing the interplay between Brady and Roviaro in the context of informer-witnesses and informer-participants).

        Thornton, 238 Ga. at 165 (2); see Branch v. State, 248 Ga. 300, 301 (2) (282 SE2d 894) (1981) (recognizing that Thornton “held that when the trial court initially determines that the informer was merely a tipster, his identity would be privileged”).

        See Nunnally v. State, 261 Ga. App. 198, 201 (4) (582 SE2d 173) (2003) (trial court properly denied motion when the informant “was not present during the execution of the search warrant and was not a witness to the trafficking and obstruction offenses that form[ed] the basis of the . . . prosecution” although informant had earlier purchased drugs from defendant); see also Dyer v. State, 162 Ga. App. 773, 774 (2) (293 SE2d 42) (1982) (“[Because] the informant was not a participant or a witness in the overt acts elemental to the conspiracy, the informant was not a decoy, but merely a tipster. Therefore, the trial court correctly refused to compel disclosure of the informant’s identity.” (citation omitted)).

        Compare Simmons v. State, 198 Ga. App. 121, 122 (400 SE2d 679) (1990) (physical precedent only) (trial court erred in denying motion when informant was present and witnessed the offense that formed basis of prosecution); Moore, 187 Ga. App. at 391 (2) (trial court erred in denying motion when informant was “the only witness in a position to amplify or contradict the testimony of the appellant and the police officer” when informant was a witness to the offense that formed the basis of prosecution (punctuation omitted)). See generally Roviaro, 353 U. S. at 64 (II) (holding that government committed prejudicial error when the informant was “the sole participant, other than the accused, in the transaction charged” and, thus, “the only witness in a position to amplify or contradict the testimony of government witnesses”).

        See Leonard, 228 Ga. App. at 796 (2) (trial court properly denied motion when informant “was not present, did not participate in the arrest, or take part in the offense”); Ramsay v. State, 175 Ga. App. 97, 98 (2) (332 SE2d 390) (1985) (trial court properly denied motion when “officer stated that the informant was a tipster and was not a decoy, witness, or participant” to or in the offense); see also Nunnally, 261 Ga. App. at 201 (4); Dyer, 162 Ga. App. at 774 (2).

       OCGA § 16-6-1 (a) (1).

        Siharath v. State, 246 Ga. App. 736, 739 (2) (541 SE2d 71) (2000).

        See, e.g., Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990) (despite lack of physical trauma and defendant’s claim that sex was consensual, sufficient evidence of forcible rape when victim testified that she was forced to submit to intercourse against her will); McKenzie v. State, 187 Ga. App. 840, 840-43 (371 SE2d 869) (1988) (sufficient evidence to support convictions for rape when victims testified and examining physicians testified to victims having injuries consistent with nonconsensual intercourse).

        Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009) (punctuation omitted); see also Littleton v. State, 225 Ga. App. 900, 901 (1) (485 SE2d 230) (1997) (holding that question of whether victim actually consented to intercourse was an issue of witness credibility for the jury); In the Interest of F. T., 165 Ga. App. 4, 4 (299 SE2d 112) (1983) (same).

       OCGA § 17-2-2 (a).

        Jones v. State, 272 Ga. 900, 901 (2) (537 SE2d 80) (2000).

        Id. at 901-02 (punctuation omitted).

        Sewell v. State, 302 Ga. App. 151, 155 (3) (690 SE2d 634) (2010) (punctuation omitted).

        See Branesky v. State, 262 Ga. App. 33, 35 (2) (584 SE2d 669) (2003) (venue established when “child testified that the crime took place at a certain location, and the deputy testified that the location identified by the child is in Meriwether County”).


author: DOYLE, Presiding Judge.

text:
    A11A2015.
    ALDEN v. THE STATE.
    (724 SE2d 451)
   DOYLE, Presiding Judge.

Mark Allen Alden appeals the denial of his plea in bar based upon double jeopardy, arguing that the imposition of certain bond conditions was punishment, and that any further prosecution is prohibited under the double jeopardy clause of the Georgia Constitution and the Fifth Amendment to the United States Constitution. We affirm, for the reasons that follow.

On November 1, 2008, Alden was arrested and issued citations for driving under the influence of alcohol with an illegal alcohol concentration (“DUI per se”), driving with a suspended license, and failure to maintain his lane. He was released from jail on a $2,200 bond and instructed that it was his responsibility to notify the court of any address changes and to keep informed of his court dates. On February 2, 2009, the State filed an accusation charging Alden with DUI per se, driving under the influence of alcohol to the extent that he was a less safe driver (“DUI less safe”), driving with a suspended license, and failure to maintain his lane.

On March 10, 2009, the trial court issued a bench warrant for Alden’s arrest based on his failure to appear at his March 3, 2009 arraignment. On July 7, 2009, Alden failed to appear for a bond forfeiture hearing, and the trial court issued a judgment of bond forfeiture. Alden was subsequently taken into custody pursuant to the arrest warrant, and counsel filed a speedy trial demand on March 31, 2010, various discovery motions, and a motion to set bond shortly thereafter. On April 14, 2010, the trial court granted Alden a bond in the amount of $15,000 with the following conditions: Alden was placed on home confinement, had an ignition interlock device placed on his vehicle, was required to wear a “Secure Continuous Remote Alcohol Monitor” (“SCRAM device”), and was required to submit to a drug and alcohol evaluation and to follow any treatment recommendations.

Alden’s case was placed on the trial calendar beginning May 5, 2010. On May 5, Alden’s counsel filed a motion to withdraw as counsel and withdrew his speedy trial demand. Subsequent counsel was appointed shortly thereafter. Alden posted bond and was released from custody on June 5, 2010. On June 22, 2010, Alden filed a plea of former jeopardy, arguing that the bond conditions set by the trial court constituted punishment and that subsequent criminal prosecution was barred under the double jeopardy clause. The trial court denied the motion on September 8, 2010, and this appeal followed.

“The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” Pursuant to the double jeopardy clause of the Fifth Amendment to the United States Constitution, no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The Georgia Constitution contains a similar double jeopardy clause, which provides that “[n]o person shall be put in jeopardy of life or liberty more than once for the same offense.” “Further, OCGA §§ 16-1-6, 16-1-7, and 16-1-8 also provide limitations on multiple prosecutions, convictions, and punishments for the same criminal conduct.” Double jeopardy prohibits three kinds of abuses: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.”

Here, Alden contends that the modified bond conditions imposed by the trial court constituted punishment that prohibited his subsequent prosecution for the underlying criminal charges. We disagree.

“The purpose of a pretrial bond is to prevent punishment before a conviction and to secure the appearance of the [accused] in court for trial.” Thus, Georgia law authorizes courts

to release a person on bail if the court finds that the person: (1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required; (2) Poses no significant threat or danger to any person, to the community, or to any property in the community; (3) Poses no significant risk of committing any felony pending trial; and (4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

Decided February 29, 2012

Norman H. Cuadra, Gregory E. Vanison, Sr., for appellant.

“Moreover, trial courts have the inherent authority to impose conditions upon bail[,] and the court may impose reasonable restrictions on a defendant’s behavior.”

Here, Alden was charged with DUI per se, DUI less safe, failure to maintain his lane, and driving with a suspended license. Tests of Alden’s breath shortly after his arrest indicated that his blood alcohol concentration was 0.162 and 0.169. Alden’s initial bond was set at $2,200, but was raised to $15,000 following his failure to appear for his arraignment or bond forfeiture hearing. Considering the nature of Alden’s arrest and charges, we conclude that the amount and conditions of his bond — home confinement, drug and alcohol evaluation and counseling, installation of an ignition interlock device on his vehicle, and a SCRAM device — were not punishment for purposes of double jeopardy, but instead “are rationally related to an alternative purpose as they are designed to prevent [Alden] from being a danger to the community by committing future acts of driving under the influence while [he] was awaiting trial” and to assure Alden’s presence at court proceedings. Thus, we find no abuse of the trial court’s discretion in denying Alden’s plea in bar.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

Rosanna M. Szabo, Solicitor-General, Erica K. Dove, Assistant Solicitor-General, for appellee.

       OCGA § 40-6-391 (a) (5).

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-5-121 (a).

       OCGA § 40-6-48 (1).

       Although the record does not indicate the date of Alden’s arrest, Alden and the State indicate in their respective briefs that the arrest warrant was served on March 26, 2010.

       (Punctuation omitted.) Strickland v. State, 300 Ga. App. 898 (686 SE2d 486) (2009).

       Ga. Const. 1983, Art. I, Sec. I, Par. XVIII.

        Nolen v. State, 218 Ga. App. 819, 820 (463 SE2d 504) (1995).

       Id.; citing North Carolina v. Pearce, 395 U. S. 711, 717 (89 SC 2072, 23 LE2d 656) (1969).

       “Generally, ‘a defendant is not placed in jeopardy until, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled, and a jury has been impaneled and sworn.’ ” Strickland, 300 Ga. App. at 898. Here, because a jury had not been impaneled and sworn in this case, “neither of the first two abuses identified in North Carolina v. Pearce concerning second prosecutions is present in this case.” Id. at 899.

        Ayala v. State, 262 Ga. 704, 705 (1) (425 SE2d 282) (1993).

       OCGA § 17-6-1 (e).

        Strickland, 300 Ga. App. at 900.

       The State alleges in its appellate brief that it proffered evidence at the bond hearing that Alden had two prior DUI convictions. Although the bond hearing transcript is not included in the appellate record, Alden concedes this assertion in his appellate brief.

       Id. (trial court’s imposition of bond restrictions for DUI offender accused of five DUI-related offenses, which restrictions included suspension of accused’s driver’s license, installation of an ignition interlock device, and requiring accused to submit to an alcohol evaluation, did not constitute punishment for purposes of double jeopardy analysis). See Bozzuto v. State, 276 Ga. App. 614, 616 (1) (624 SE2d 166) (2005) (bond conditions including restricting accused’s contact with the victim and prosecution witnesses, banishment from certain counties, and requiring accused to undergo a mental and physical evaluation, were intended to further public safety and did not constitute punishment for double jeopardy purposes); Clarke v. State, 228 Ga. App. 219, 220 (1) (491 SE2d 450) (1997) (trial court was authorized to forbid the accused, who was charged with battery, from contacting the victim as a condition of his pretrial release).


author: Doyle, Presiding Judge.

text:
    A11A2052.
    JONES v. THE STATE.
    (724 SE2d 454)
   Doyle, Presiding Judge.

This appeal arises from the trial court’s revocation of Marios Jones’s probation for violation of the terms thereof. Jones filed an application for discretionary appeal, which this Court granted in order to review whether the trial court was authorized to revoke the balance of Jones’s probation. For the reasons that follow, we reverse.

The record reveals that Jones pleaded guilty to one count of felony cruelty to children and was sentenced to ten years probation with sex offender conditions on February 16, 2006. Jones violated the provision of his probation requiring him to “Report to the Probation Officer and permit the Probation Officer to visit [him] at home or elsewhere.” In the revocation petition, the Georgia Department of Corrections, Probation Division (“the Department”) recommended a six-month revocation of Jones’s probation based on the violation.

At the March 15, 2011 revocation hearing, probation officer Jaimie Moody testified that Jones had been in jail for six months for a previous probation revocation, and upon release on January 21, 2011, Jones was ordered to report to the Carroll County probation office within 48 hours. Although Jones initially reported at that time, he was given an appointment to meet with Moody on January 24 at 9:00 a.m., which appointment he failed to keep. Moody was unaware of any report to the probation office by Jones after he failed to make the January 24 appointment. The office issued a warrant for Jones’s arrest on February 1, 2011, and Jones turned himself in after learning of the warrant.

At the conclusion of the hearing, the trial court determined that Jones had failed to comply with special conditions of his probation, namely that he register as a sex offender. Based on that finding, the trial court revoked the balance of Jones’s probation, which amounted to four years, eleven months, and one day, and directed that he serve that time in the state penal system.

DECIDED February 29, 2012.

John W. Howe, for appellant.

Peter J. Skandalakis, District Attorney, for appellee.

This Court granted Jones’s application for discretionary appeal to determine whether the trial court erred by revoking the balance of Jones’s probation. Jones timely appealed, and he argues that the trial court’s revocation order was erroneous because the State did not petition for modification based on any failure on Jones’s part to meet any requirements that he register as a sex offender, which was the reason his probation was revoked by the trial court.

Due process requires that a defendant be given written notice of the claimed violation of his probation prior to [a probation] revocation hearing. In addition, in order to revoke the probationary features of a sentence the defendant must have notice and opportunity to be heard, the notice being sufficient to inform him not only of the time and place of the hearing and the fact that revocation is sought, but the grounds upon which it is based. It may not be revoked where there is no evidence that the defendant violated its terms in the manner charged in the notice, even though there be evidence at the hearing that the defendant violated the terms of probation in some other manner as to which there was no notice given. Likewise, if a judgment is based upon an offense not charged in the petition for revocation, it must be reversed.

The Department’s petition for revocation of probation contained no allegation that Jones had failed to register as a sex offender, and the trial court therefore erred by revoking Jones’s probation on that basis.

Judgment reversed.

Ellington, C. J., and Miller, J., concur.

       The State failed to file a response to the application and also failed to file a response brief when Jones’s application was granted. Thereafter, this Court issued an order directing the State to file a response brief within ten days of the order, which District Attorney Peter J. Skandalakis and his assistant attorneys failed to file. Pursuant to Court of Appeals Rule 23 (b), “[a] brief shall be filed by the appellee in all criminal appeals when the State is the appellee; and upon failure to file such brief, the State’s representative may be subject to contempt.” We caution the District Attorney and his representatives that failure to comply with a Rule or Order of this Court can result in dismissal of an appeal, imposition of a fine up to $2,500, or revocation of the license to practice before this Court. See Court of Appeals Rule 7.

       OCGA § 16-5-70 (b).

       (Citations and punctuation omitted.) Kitchens v. State, 234 Ga. App. 785, 787-788 (2) (508 SE2d 176) (1998).


author: Adams, Judge.

text:
    A11A2103.
    THE STATE v. TAKYI.
    (724 SE2d 459)
   Adams, Judge.

Elizabeth Takyi was arrested for driving under the influence of alcohol. Eighteen months later, following an evidentiary hearing, the State Court of Fulton County dismissed the State’s case on the ground that the State had violated Takyi’s constitutional right to a speedy trial. The State appeals, and we vacate and remand for further consideration as explained below.

Setting aside the transcript of the hearing for the moment, the record shows the following undisputed procedural facts. On October 3, 2008, an officer for the City of Sandy Springs Police Department issued Takyi citations for failure to maintain her lane and driving under the influence of alcohol. The citations ordered Takyi to appear in municipal court on November 19, 2008. The matter was apparently continued, and on January 5, 2009, Takyi appeared at an arraignment in municipal court and demanded a trial by jury. As a consequence, the case was bound over to the State Court of Fulton County.

On January 22, 2010, just over a year later, Robert Chestney of the Chestney Law Firm sent a letter to the Fulton County Solicitor-General inquiring about the status of the case and stating that his client requested “that the charges against her be brought to trial at the earliest possible opportunity, asserting her right to a speedy trial under the constitution.” Chestney raised a concern about how the case was affecting his client’s immigration status, and he concluded with the following request: “please try to locate this case and accuse it as quickly as possible, so we can get it to trial before it results in her losing everything she has worked so hard for.” The solicitor-general responded three days later and explained that there was nothing in the county computer system to indicate that the county had received the paperwork; she asked for the traffic ticket to facilitate locating the file.

On February 4, 2010, 13 days later, the solicitor-general filed formal charges against Takyi in the state court. On February 22, Takyi, through attorney Rebecca Kozycki of the Chestney Law Firm, filed a demand for speedy trial pursuant to the United States and Georgia Constitutions and pursuant to OCGA § 17-7-170. On March 10, Albert A. Mitchell, an attorney from a different firm, filed an appearance on behalf of Takyi as her “counsel of record”; he also filed a discovery request and motions, but he did not file a demand for speedy trial.

On March 15, 2010, Takyi, through attorney Kozycki, filed a motion to dismiss on the ground that her constitutional right to a speedy trial had been violated. On that same day, the assigned judge recused herself. On April 6, Mitchell moved to withdraw as counsel in part because the defendant was “currently represented by another Attorney.”

On April 27, 2010, the second judge assigned to the case held a hearing on the motion. Robert Chestney and Michael Harty (another member of the Chestney Law Firm) testified, as did Albert Mitchell and the appellant. Two days later, the court entered an order granting the motion to dismiss based on Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). The court found that the 18-month delay was unreasonable and raised a presumption of prejudice, thereby triggering a balancing test of the remaining factors. The court found that there was nothing in the record to explain the delay other than the State’s negligence and nothing to indicate that Takyi bore any responsibility for the delay; that Takyi had asserted her right to a speedy trial as early as possible given that the case was missing for a year or more; and that Takyi was prejudiced because she had suffered unusual and extreme anxiety and concern associated with the pending charges because of her unresolved immigration status. The court weighed each of the last three factors in favor of Takyi, and, accordingly, found that her constitutional right to a speedy trial had been violated.

When considering a motion to dismiss on the grounds that an accused’s constitutional speedy trial right has been violated, the court applies the test set forth in Barker, 407 U. S. 514, and Doggett v. United States, 505 U. S. 647, 651 (112 SC 2686, 120 LE2d 520) (1992). See, e.g., State v. Porter, 288 Ga. 524, 525 (2) (a) (705 SE2d 636) (2011). That test has two stages: The court first determines “whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered ‘presumptively prejudicial.’ ” Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). “If not, the speedy trial claim fails at the threshold.” Id. Otherwise, the court proceeds to “application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.” Id. “The trial court’s weighing of each factor and its balancing of all four factors — its ultimate judgment — are reviewed on appeal only for abuse of discretion.” Porter, 288 Ga. at 526 (2) (a).

1. The State acknowledges that the 18-month delay in this case was presumptively prejudicial as the trial court found. See Doggett, 505 U. S. at 652, n. 1 (delay approaching one year is presumptively prejudicial). We therefore move to the balancing test.

2. The second-stage, four-factor balancing test raises these questions:

[i] whether delay before trial was uncommonly long, [ii] whether the government or the criminal defendant is more to blame for that delay, [iiij whether, in due course, the defendant asserted [the] right to a speedy trial, and [iv] whether he [or she] suffered prejudice as the delay’s result.

Doggett, 505 U. S. at 651.

(a) The trial court did not clearly separate the threshold inquiry regarding the length of the delay from the question of whether the delay was uncommonly long. But although there is no express finding regarding this factor, in its findings, the court did conclude that the length of the delay was unreasonable, “especially for misdemeanor traffic offenses with one witness and no follow-up investigation.”

The record includes testimony from Harty who, immediately before joining the Chestney Law firm and shortly before representing Takyi, had worked for the Fulton County Solicitor-General. He testified that it can take a long time to transfer a case from Sandy Springs to Fulton County, and that he told Takyi that fact. He testified that moving from one court to another may add six to eighteen months to the process. There was, however, other evidence to suggest that Takyi’s case was misplaced or could not be found for upwards of a year. Because the trial court’s conclusion was based on some evidence, the court did not abuse its discretion in weighing this factor in favor of Takyi.

(b) On the second factor, the trial court found that there was nothing in the record to explain the delay other than the State’s negligence and that there was “certainly nothing to suggest that it was due to the fault of the Defendant”; it therefore weighed this factor in favor of Takyi. But as shown above, there was evidence that Harty told Takyi that if she chose a jury trial and a transfer to State Court, there might be considerable delay. The definitive nature of the trial court’s conclusion shows that the court did not consider the evidence that Takyi knew there would be some delay when deciding whether this factor weighed in favor of the State or Takyi.

(c) With regard to Takyi’s assertion of her constitutional right to a speedy trial, the court found that because she “asserted her right to a speedy trial as early as possible, this factor is weighted in [her] favor.” But Takyi did not demand a constitutional speedy trial until January 2010, over 15 months after her arrest. And although a defendant may assert his constitutional right to a speedy trial in municipal court, see, e.g., State v. Lessing, 302 Ga. App. 196 (690 SE2d 501) (2010), there is no evidence that Takyi even attempted to do so. Also, Takyi was allowed to testify to hearsay from conversations she had with people in Sandy Springs Municipal Court and the Fulton County Solicitor-General’s office that related to her ability to assert her right to a speedy trial — to the effect that the case could not be located, thereby suggesting that she could not file such a demand — and the judge made a finding of fact based on that hearsay testimony: that “[tlhe case ‘did not exist’ according to the Solicitor’s office. ...” But, as shown below, hearsay cannot support the trial court’s conclusions.

Therefore, although there is significant evidence in Takyi’s favor regarding her attempts to obtain a speedy trial, the court’s finding appears to be based, at least in part, on an error of law regarding when Takyi could assert a constitutional speedy trial demand and partially based on improper hearsay evidence.

(d) Finally, the court concluded that Takyi was harmed by the delay. Courts are concerned with three types of prejudice arising from a delay in bringing a case to trial, “ ‘oppressive pretrial incarceration,’ ‘anxiety and concern of the accused,’ and ‘the possibility that the (accused’s) defense will be impaired’ by dimming memories and loss of exculpatory evidence.” Porter, 288 Ga. at 529. Here, Takyi only asserts the second form of prejudice, anxiety and concern. She was not incarcerated, and she does not contend her defense would be impaired, which is the most serious form of prejudice arising from delay. See id.

Takyi testified that she was prejudiced in that the delay caused her anxiety and concern regarding her immigration status. The State contends the lower court allowed impermissible hearsay on this topic, over objection, and based its findings of fact on that hearsay with regard to this factor. We agree.

For example, the court found that the Department of Homeland Security denied Takyi’s application for “Adjustment of Status” “because her [DUI] case remained unresolved . . that Homeland Security denied her request to reopen the case; and that, as a result, she is “facing a threat of deportation removal proceedings.” But no one from Homeland Security testified at the hearing. Rather, Takyi testified, often over objection, that she was told that unless she had her DUI taken care of, her immigration application would be closed; that a September 21, 2009 letter from Immigration to “Elizabeth Fugate” told her that employment authorization had been denied because she had not been able to resolve her DUI case, when, in fact, the letter does not say that; that a letter dated July 8, 2009, that was not even introduced, meant that she was facing deportation; and that a letter dated May 22, 2009, that also was not introduced told her that because her DUI case was not closed, her attempt to reopen her immigration case had been denied. And Takyi introduced a letter from her Chicago-based immigration attorney, who was not present at the hearing, that stated that Takyi faced a “very real risk of deportation ... as a result of the delay in bringing her misdemeanor case to trial . . . Finally the court admitted a computer log dated September 9, 2009 from the Chestney Law Firm, which did not represent Takyi with regard to her immigration matters, that stated, “immigration threatening to deport [Takyi] unless finalized.”

The rule that hearsay is objectionable and without probative value is applicable to hearings on speedy trial motions. Porter, 288 Ga. at 530 (2) (c) (4); Jones v. State, 284 Ga. 320, 324 (2) (667 SE2d 49) (2008). In Jones, the court found that a document allegedly prepared by a police investigator that contained statements by a prosecutor was “obviously inadmissible, non-probative hearsay” because neither the investigator nor the prosecutor testified at the speedy trial hearing. Jones, 284 Ga. at 321-322, 324. See also Porter, 288 Ga. at 530 (“Porter never offered the letter into evidence at the hearing on the motions to dismiss, and even if he had, the letter would have been hearsay without probative value.”). The Supreme Court also noted that evidence from nontestifying witnesses cannot be used to support the finding of harm from a delay in getting the case to trial or who was responsible for the delay. Jones, 284 Ga. at 322. Thus, the trial court in this case erred by allowing hearsay evidence and relying on hearsay in its findings. See also Howard v. State, 307 Ga. App. 822, 828 (706 SE2d 163) (2011) (Defendant’s testimony “that having this case pending for so long caused him great anxiety and concern . . . was hearsay and, therefore, of no probative value.”). Thus, the trial court’s decision to weigh the delay in favor of Takyi was flawed.

In sum, the trial court made factual and legal errors when attempting to perform the delicate balancing test required in these cases.

As a result, the trial court could not properly balance the Barker factors, and . . . [we must] vacate[ ] the order and remand [ ] the case for the trial court to exercise its discretion again using properly supported factual findings and the correct legal analysis, reflected in an adequate written order.

Porter, 288 Ga. at 534. See also State v. Reimers, 310 Ga. App. 887 (714 SE2d 417) (2011).

Judgment vacated and case remanded with direction.

Barnes, P. J., concurs. Blackwell, J., concurs in judgment only.

Decided February 29, 2012.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellant.

Rebecca T. Kozycki, for appellee.


author: MlKELL, Presiding Judge.

text:
    A11A2230.
    GRAND MASTER CONTRACTING, LLC v. LINCOLN APARTMENT MANAGEMENT LIMITED PARTNERSHIP et al.
    (724 SE2d 456)
   MlKELL, Presiding Judge.

Plaintiff Grand Master Contracting, LLC (“Grand Master”), brought this suit against Lincoln Apartment Management Limited Partnership (‘ ‘ Lincoln ”), property manager of the Woodchase Village Apartments (the “Apartment Complex”), and Lincoln’s general manager, Lincoln BP Management (“appellees”). Grand Master’s complaint alleged that it was owed over $59,000 for services and material it provided to repair and renovate the Apartment Complex. Grand Master also sought recovery on a claim of fraudulent misrepresentation on the theory that appellees ordered the goods and services from Grand Master while knowing the invoices would not be paid. Appellees moved for summary judgment on the ground that although Lincoln contracted with Grand Master to provide the services and material for the renovations, Lincoln was acting at all times as the agent of the owner of the Apartment Complex, Terrell Mill Associates, LLC. Grand Master appeals from the trial court’s grant of summary judgment to appellees. Finding no error, we affirm.

Summary judgment is appropriate if the pleadings and evidence show that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. On appeal from the grant or denial of summary judgment, an appellate court conducts a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party. In moving for summary judgment, defendants “who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case.”

So viewed, the record shows that between September and October 2008, Grand Master was hired to provide goods and services to maintain, renovate and repair the Apartment Complex. Lincoln required all vendors, including Grand Master, to sign a Vendor Insurance Requirements Agreement (the “VIRA”) before commencing work at the Apartment Complex. The VIRA provides: “Vendor understands and agrees that the legal Owner of the community is responsible for the payments of any services or materials performed or delivered, and not Lincoln, which is the property management company and Agent for the Owner of the community.” Although the VIRA did not specifically state that Terrell Mill was the owner of the Apartment Complex, the VIRA required vendors to add the “owner and owner’s agent” as additional insureds on all insurance policies. Grand Master’s field manager, Jane Yang, signed the VIRA on August 20, 2008, prior to commencing any work on the Property. The certificate of liability insurance issued to Grand Master included Terrell Mill as the certificate holder on the document.

After the work had been performed, the Apartment Complex was foreclosed upon. At the time of foreclosure, Grand Master was owed $59,758 for unpaid invoices. Grand Master filed suit on open account seeking reimbursement for the unpaid invoices, plus interest and costs; and for fraudulent misrepresentation, claiming that appellees ordered goods and services from Grand Master that it knew could not be repaid.

The trial court granted summary judgment in favor of appellees as to the open account claim, ruling that appellees were not liable for the unpaid invoices because the VIRA “specifically indicates that [appellees] would not be liable for any non-payment for the goods and services at issue here. Rather, the property owner would be so liable.” The trial court also granted summary judgment in favor of appellees on the fraudulent misrepresentation claim, ruling that Grant Master “has cited to no evidence showing that [appellees] culpably elicited money with no intention of providing fair value for the funds.”

1. Grand Master argues that the trial court erred in granting summary judgment because an issue of material fact exists as to whether appellees made a valid disclosure of the identity of Lincoln’s principal. Under Georgia law, an agent who makes a contract without identifying his principal can become personally liable on the contract. However, none of the cases relied upon by Grand Master involve a written contract where the plaintiff agreed that the agent would not be held responsible for any payment for materials or services rendered. Georgia law recognizes that “[ujnless prohibited by statute or public policy, the parties are free to contract on any terms and about any subject matter in which they have an interest,” and such agreements will be enforced by the courts. The VIRA, signed by Grand Master and Lincoln, specifically states that Lincoln would not be held liable for any services performed or materials delivered. The clear terms of the VIRA provide that appellees are not responsible for payment; rather, the owner is solely responsible for all unpaid invoices. Neither appellee is the owner of the apartment complex. Accordingly, there is no issue of material fact as to appel-lees’ liability since it was expressly provided for in the VIRA.

Grand Master’s argument that it did not have knowledge of the contents of the VIRA because its employee, Yang, did not keep a copy after signing it is meritless. Grand Master is bound by, and charged with knowledge of, the VIRA’s terms even if Grand Master did not read it.

2. Grand Master alleges that appellees engaged in fraud by arranging for Grand Master to provide goods and services to the Apartment Complex, when Lincoln knew that the owner, Terrell Mill, could not pay. Grand Master argues that the trial court erred in granting summary judgment because issues of material fact remain as to its fraudulent misrepresentation claim. We disagree.

The tort of fraudulent misrepresentation has five essential elements. Grand Master must show: (1) that Lincoln made false representations; (2) that Lincoln knew the representations were false at the time (scienter); (3) that Lincoln made the representations intending to deceive Grand Master and induce it to perform the work; (4) that Grand Master justifiably relied upon such representations; and (5) that Lincoln’s misrepresentations resulted in damages and loss to Grand Master.

Grand Master has failed to present evidence raising a genuine issue of material fact as to an essential element of its fraud claim, that Lincoln knew Terrell Mill would be unable to pay for services rendered. Appellees submitted evidence that although the rental income from the Apartment Complex was rarely sufficient to meet each month’s financial obligations at the property, the property owner regularly infused capital into the property so that all financial obligations could be met; and that Lincoln had a long history with Terrell Mill’s parent entity, which had always appropriately funded its projects. Terrell Mill supplied funds for the financial obligations of the Apartment Complex until November 2008, by which time Grand Master had already completed work on the property. In the face of this evidence, Grand Master has introduced no evidence showing that appellees knew its invoices could not be paid. “So long as one essential element under any theory of recovery is lacking, the defendant is entitled to summary judgment as a matter of law irrespective of any issues of fact with regard to other essential elements.”

Decided February 29, 2012.

Isenberg & Hewitt, Allison L. Byrd, for appellant.

Fowler, Hein, Cheatwood & Williams, Justin D. Kreindel, for appellees.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       Grand Master also named Terrell Mill Associates, LLC, owner of the Apartment Complex, as a defendant, but later voluntarily dismissed all claims against it.

       OCGA § 9-11-56 (c).

        Alston & Bird LLP v. Mellon Ventures II, L.P, 307 Ga. App. 640 (706 SE2d 652) (2010).

       (Citation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010).

       See OCGA § 10-6-87; Wojcik v. Lewis, 204 Ga. App. 301, 304 (2) (419 SE2d 135) (1992).

       See Hunter-Turnkey, Inc. v. Pilot Property Co., 210 Ga. App. 365-366 (436 SE2d 84) (1993) (error to enter judgment for defendant apartment management company, where evidence showed that defendant never disclosed the fact of its agency or its principal to contractor suing on oral agreements); Redi-Floors, Inc. v. Sonenberg Co., 254 Ga. App. 615, 616 (1) (563 SE2d 505) (2002) (jury question existed as to agent’s liability where some evidence showed that agent, in placing oral order for carpet, failed to disclose principal apartment owner’s name to plaintiff supplier).

       (Citation and punctuation omitted.) City of Pembroke v. Hagin, 194 Ga. App. 642, 643 (1) (391 SE2d 465) (1990).

       Id.

       See Arko v. Cirou, 305 Ga. App. 790, 793 (1) (700 SE2d 604) (2010).

       See Catrett v. Landmark Dodge, 253 Ga. App. 639, 640 (1) (560 SE2d 101) (2002).

       (Citation and punctuation omitted.) Arp v. United Community Bank, 272 Ga. App. 331, 335 (3) (612 SE2d 534) (2005).


text:
    A11A2231.
    BOAT RAMP ROAD PARTNERS, LLC et al. v. THE FIRST STATE BANK, INC. et al.
    (724 SE2d 464)
   Adams, Judge.

First State Bank, Inc., Glandon Capital Group, LLC and Corner Bank, N.A. (appellees) brought suit to recover the outstanding balance on a note executed by Boat Ramp Road Partners, LLC and guaranteed by Gregory Lorenzetti, Eric J. Nathan, Gregory Green-stein, Jeffrey Goldstein and Philip Weener. The loan to Boat Ramp was in the original principal amount of $2,665,000 and Nathan, Greenstein, Goldstein and Weener had each executed separate Limited Guaranty Agreements pursuant to which they had personally and unconditionally guaranteed “all principal, interest, . . . prepayment premiums, fees, late charges, costs, [and] expenses” but “not to exceed the amount of. . . (443,000.00).” Lorenzetti signed an identical agreement, except the amount he guaranteed was not to exceed $1,559,200. Paragraph 16 of the Guaranty set forth the terms of the Guaranty, and provided that it “shall continue in effect until all the Guaranteed Obligations and all of the obligations of the Guarantor . . . under this Guaranty are fully and finally paid. . . .” Paragraph Six of each agreement additionally stated that the “Guaranty is independent of (and shall not be limited by) any other guaranty now existing or hereafter given.” Further, the Guaranty agreements provided that “suit may be brought or demand may be made against. . . any or all parties who have signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Obligations, or against any one or more of them, separately or together.” And, lastly, the Guaranty contained a provision for the payment of court costs and attorney fees incurred by the appellees in seeking to enforce the Guaranty.

The appellees moved for summary judgment seeking a judgment against Boat Ramp for $1,736,032.40, which was the outstanding indebtedness due under the note, and a judgment against the guarantors, jointly and severally, up to the amount of their respective guaranties. Additionally, appellees requested an award of attorney fees and expenses of litigation from all the guarantors. Following a hearing, the trial court granted appellees’ motion for summary judgment, and entered judgment against Boat Ramp in the principal amount of $1,736,032.40, past due interest through the specified date of $240,059.57, late fees of $73,380.72, court costs of $388.50 and attorney fees in the amount of $17,006.58, for a total judgment amount of $2,066,867.77. As to the guarantors, the court entered judgment against Nathan, Greenstein, Goldstein and Weener in the principal amount of $443,000, plus attorney fees of $17,006.58 and court costs of $388.50, for a total judgment amount of $460,395.08, and against Lorenzetti for the same amount of court costs and attorney fees and the principal amount of $1,559,200, for a total judgment amount of $1,576,595.08.

The guarantors filed the present appeal, arguing that the Guaranties are ambiguous as to their intent and that ambiguity should be resolved by a trial court, and additionally that the trial court erred by awarding judgments against them which exceeded the limits of liability set forth in the Guaranties.

1. Citing Rohm & Haas Co. v. Gainesville Paint &c. Co., 255 Ga. App. 441, 443-444 (2) (b) (483 SE2d 888) (1997), the guarantors first argue that the Guaranties are ambiguous as to whether the Guaranties are cumulative such that the total amount of the guarantors’ combined liability may exceed the amount of liability under the note. In Rohm & Haas, the same guarantor had executed a series of guaranties which limited his liability for the debt to $30,000, $50,000 and $100,000, respectively. Each guaranty also provided that it was independent of any other guaranties given for the debt. After first determining that the $100,000 guaranty was barred by the Equal Dignity Rule, id. at 442 (2) (a), this Court then held that “the absolute limit of liability for payment of goods sold in each guaranty creates an ambiguity as to whether they are cumulative,” and, after considering evidence from both parties that the $50,000 guaranty was meant to replace the $30,000 guaranty, upheld the trial court’s determination that the guaranties were not cumulative. Id. at 444 (2) (b).

The guarantors argue the same reasoning applies here and that a jury should determine whether they intended for the cumulative total of the Guaranties to exceed the amount of liability under the note. However, we think that Rohm & Haas is readily distinguishable from the case at hand. In that case, the ambiguity resulted from the fact that the same guarantor executed a series of guaranties in increasing amounts over a period of years to guarantee the amount owed for goods purchased from the plaintiff. Each guaranty put a cap on the amount the guarantor would be liable for but also provided that the executed guaranty was independent from any other guaranties given for the debt, with the effect that if all the guaranties were enforced, the guarantor’s liability would exceed the maximum amount of liability stated in any one of the Guaranties. In the case at bar, multiple guarantors executed separate Guaranties, each of which provided for a maximum amount of liability from that guarantor, and the fact that the Guaranties were independent of each other did not result in an increase of liability beyond the limitation stated. Further, as the appellees point out, the Guaranties provided for termination upon satisfaction of the guaranteed obligation, up to the limits of each Guaranty agreement, plus attorney fees and costs. Thus, once the underlying debt was satisfied, the Guaranties could no longer be enforced. This enumeration thus presents no basis for reversal.

Decided February 29, 2012.

Moorman & Pieschel, Nicholas J. Pieschel, for appellants.

Smith, Welch, Webb & White, A. J. Welch, Jr., William A. White, Timothy W. Haley, for appellees.

2. The guarantors also argue that the trial court erred by awarding judgments against them for amounts that exceeded the limits of liability set forth in the Guaranties. However, the guarantors’ agreement to pay attorney fees and court costs was in addition to their guarantee of the underlying obligation, and the trial court did not err by entering judgment accordingly. Rohm & Haas, 225 Ga. App. at 445 (4); Sheppard v. Daniel Miller Co., 7 Ga. App. 760, 763 (68 SE 451) (1910).

Judgment affirmed in part and case remanded in part.

Barnes, P. J., and Blackwell, J., concur.

       Although originally a party to this appeal, Lorenzetti has notified this Court that he has filed a Chapter 7 Bankruptcy Petition in the United States Bankruptcy Court for the Northern District of Georgia, Atlanta Division, Case No. 11-77404-JEM and any and all further proceedings in this matter have been stayed pursuant to 11 USC § 362 as to that appellant. Thus, as it pertains to him, we hereby remand this appeal to the trial court, with leave to Lorenzetti to reinstate this appeal by filing another notice of appeal within 30 days after the lifting of the stay, if that occurs. E.g., Payless Car Rental System v. Elkik, 306 Ga. App. 389, 390 n. 1 (702 SE2d 697) (2010). However, because the other guarantors have not suggested that the protection of the stay extends to them, we will address the issues raised in this appeal as those issues pertain to the remaining parties. Id.

       The trial court specifically enforced these provisions by stating in its order that “the individual guarantors are only personally liable for the amounts set out by the limitations explicit in each guarantee.”