author: MCMILLIAN, Judge.

text:
    A12A2256, A12A2257.
    ALLISON et al. v. WILSON (two cases).
    (740 SE2d 355)
   MCMILLIAN, Judge.

This appeal arises from a contempt order issued after appellant Sharon Allison and her attorneys failed to pay attorney fees awarded for alleged discovery violations. That discovery focused on locating and serving Allison’s co-defendant Darnell A. Sandifer, Jr. Based on an exhaustive review of the record, including the transcripts from numerous hearings that spanned over the course of 15 months, we find that the trial court erred in awarding fees under OCGA § 9-11-37 (a) (4) (A) because the trial court erroneously believed that it had issued a prior order compelling Allison and her counsel to provide that information. Because the contempt order striking Allison’s answer was based on the erroneous fee award, the contempt order must also be reversed and vacated.

On October 30, 2008, appellee Phillippa Wilson was allegedly injured when her vehicle was struck from behind by a vehicle Sandifer was driving. The car was owned by Allison, who is Sandifer’s aunt, and Wilson filed a personal injury suit against both Sandifer and Allison (collectively referred to as defendants) on February 8, 2010. Allison ultimately acknowledged service of the complaint, but Sandifer refused to acknowledge service, and Wilson’s attempts to serve him were unsuccessful. Consequently, on October 13, 2010, Wilson filed a motion for permission to serve Sandifer outside the statute of limitation and to compel Allison and her attorneys to appear before the court and disclose “all available information regarding” Sandifer’s whereabouts. Wilson argued that Allison, who apparently had stated in her deposition that she did not know where either Sandifer or his mother lived, appeared to be “withholding basic information about her family that might assist [Wilson] in locating and serving Defendant Sandifer. . . .” Further, according to Wilson’s motion, Wilson’s counsel had requested that defendants’ attorney, Allison M. McDonald, either “turn over” Sandifer’s location or acknowledge service on his behalf, but that she had refused to either acknowledge service or reveal his location, despite having met with Sandifer in her office “in recent weeks.” The trial court ordered Allison and her counsel to appear at a hearing on Wilson’s motion and “disclose all information they have or reasonably should have regarding [Sandifer’s] present whereabouts and show cause why [Wilson’s] Motion for Permission to Serve [Sandifer] Beyond Statute of Limitation should not be granted.”

Although not transcribed, it appears that this hearing was held on October 21, 2010. On October 27, 2010, the trial court granted Wilson’s request to serve Sandifer outside the statute of limitation, finding that Wilson had exercised due diligence in attempting to locate and serve Sandifer. Further, the court held: “In the event that the location of Darnell Sandifer is not provided to Plaintiff through standard discovery measures, this Court will entertain a Motion to Compel on this issue and will consider awarding attorneys fees, expenses, and other sanctions as are appropriate.”

On November 16, 2010, Allison filed responses to Wilson’s first continuing interrogatories. Allison stated that to the best of her “recollection,” Sandifer’s last known address was on Washington Road in Atlanta, but that she did not know the specifics. Allison also stated that she believed Sandifer was attempting to gain employment through an Atlanta Job Corps program on West Lake Avenue in Atlanta, and specifically referenced her prior deposition testimony to that effect. Allison stated that she had last seen Sandifer at McDonald’s office, but that the details of that conversation were protected by attorney-client privilege. Allison also provided her sister’s cell phone number and said she believed her sister resided in Union City, Georgia. Allison said she did not have a phone number for Sandifer, and that she did not know any “social networking” or e-mail addresses for either Sandifer or her sister.

On December 6, 2010, Wilson filed a motion to compel, enter judgment, and for sanctions based on her unsuccessful attempts to obtain an acknowledgment of service from Allison, and her unsuccessful attempts to locate and serve Sandifer. Wilson attached Allison’s interrogatory responses and said that Allison had “amazingly” denied knowing where Sandifer could be located and served. Wilson argued that “every reasonable means to attempt to locate and serve [defendants,” had been utilized, and characterized Allison’s and McDonald’s conduct as “extreme [,] outrageous,... [and] obstructive[.]” As relief, Wilson asked the court to strike any responsive pleadings that had been filed in the case, enter judgment against one or both defendants, impose sanctions and award attorney fees and expenses.

A few days later, Allison signed an acknowledgment of service and filed a response to Wilson’s motion to compel, asserting, among other things, that she had answered all deposition and interrogatory questions truthfully.

The trial court held a hearing on Wilson’s motion on February 1, 2011. On the question of service on Sandifer, Wilson reminded the court that at the October 21 hearing McDonald revealed that Sandifer had been in her office, and the trial court indicated the importance of that revelation to her decision, stating “I think that’s what turned me around on this thing.” Defendants’ counsel did not appear to oppose Wilson’s request to serve Sandifer by publication, but pointed out to the court that Sandifer could not be forced to acknowledge service. The trial judge expressed her understanding, but deemed it a “little suspicious” that McDonald would represent to the court that she did not know where to locate Sandifer, despite the fact that he had been in her office and that he was related to her other client. The court granted Wilson’s request to serve Sandifer by publication finding “that the plaintiff has exercised extraordinary diligence, as the Court has found in its prior order, and that Mr. Sandifer is evading service . . . .”

The court then turned to the issue of sanctions. Defendants’ counsel informed the court that Sandifer had been served in two other cases that were pending as a result of the accident, but that Wilson’s counsel had not attempted to “simply look to see where he was served in those cases.” Defendants’ counsel pointed out that it was Wilson’s burden to serve Sandifer and that Sandifer had not authorized his counsel to disclose his address. The trial judge again expressed her understanding, but did not reconsider her finding, and announced that Wilson was entitled to attorney fees for bringing the motion. In response to defense counsel’s inquiries concerning the statutory basis for an attorney fee award, the court stated that the award was based on contempt for a wilful violation of her prior order. However, recognizing it did not have jurisdiction over Sandifer because he had not yet been served, the court decided to hold another hearing at a later date to determine the amount of attorney fees and whether the sanction would be imposed against the defendants individually, collectively, along with their counsel, or some combination thereof.

The court entered a written order on February 8, 2011 in which it found that (1) Allison had been properly served and that all service defenses asserted by Allison were stricken; (2) Sandifer had been evading service despite Wilson’s due diligence in attempting to serve him and that, therefore, he could be served by publication; and (3) defendants and/or their counsel had wilfully violated the October 27, 2010 order and were in contempt of court, entitling Wilson to an award of attorney fees and expenses to be determined at a later hearing.

Another hearing was held on March 22, 2011. The court opened the hearing by referencing the February 8 order, reiterating that either Allison or her counsel had wilfully violated the October 27 order, which required them to respond in good faith to discovery requests designed to ascertain Sandifer’s whereabouts so he could be served. Defendants’ counsel objected to the hearing on the basis that they had not been informed of the statutory basis for the award, and the court responded that it was based on either contempt for wilfully violating the October 27 order or a violation of discovery rules.

Defendants’ counsel argued that Allison had cooperated fully by responding to interrogatories and having her deposition taken and thus fees were not authorized under OCGA § 9-11-37 (a) for a discovery violation. The court then questioned whether Allison had responded honestly and fully in her interrogatories, and a lengthy exchange between the parties’ attorneys and the court ensued, with both sides making numerous references to Allison’s interrogatory responses and deposition testimony in their attempts to establish her credibility or lack thereof. In particular, defendants’ counsel pointed out that since the last hearing Sandifer had in fact been served at Atlanta Job Corps on West Lake Avenue, and that Allison had provided a partial address for that location in her deposition and interrogatory responses. The trial court, however, was not persuaded that this information demonstrated Allison had been forthcoming in her responses, noting that Allison had not provided an exact street address.

After more back and forth about Allison’s deposition and interrogatory responses and Wilson’s attempts to serve Sandifer, the court finally opined that

the credibility is raised for the reason that I stated: The responses to the two sets of interrogatories and the deposition testimony coupled with the representation. That’s where I found that it wasn’t credible. ... So I said there’s been a willful violation of my order that says that they are to respond to discovery measures ....

The court continued that “[w]hen we came the last time and I heard all this about these evasive noncommittal discovery answers, discovery answers that clearly would not allow him service, ... I said I believe that the motion to compel should be granted and I granted it----That’s ... where we are.” The court also indicated that since the motion had been granted, Wilson was entitled to attorney fees incurred in bringing the motion under OCGA § 9-11-37.

On April 1, 2011, the trial court entered an order granting attorney fees and expenses pursuant to OCGA § 9-11-37 (a) (4) (A) (rather than for contempt as stated at the February 1, 2011 hearing and February 8, 2011 order) based on the following findings: (1) Allison was not forthcoming and truthful in her deposition regarding Sandifer’s whereabouts; (2) Allison was not truthful and forthcoming in her interrogatory responses regarding her knowledge of Sandifer’s address, location and whereabouts, despite being ordered by the court to cooperate with Wilson in good faith; and (3) Allison’s interrogatory responses were not properly verified, amounting to a complete failure to respond. Further, the court found that

[defendants’ counsel permitted and condoned discovery abuses and violated this Court’s rulings by not disclosing... information known to . . . Allison and defense counsel regarding . . . Sandifer’s whereabouts despite . . . Sandifer physically meeting with defense counsel and . . . Allison in defense counsel’s office prior to the hearing on Plaintiff’s Motion to Compel and yet, Defendant Allison continued to refuse to identify Defendant Sandifer’s whereabouts in response to Plaintiff’s discovery.

The court noted in a footnote that Allison’s “counsel unnecessarily expanded the proceedings by failing to acknowledge service . . . despite agreeing to do so in open court,” and that while she was not awarding attorney fees on this basis, she had taken those actions into consideration in determining whether they acted wilfully and in bad faith with respect to the service issue. The Court then ordered Allison and her counsel (hereinafter referred to collectively as appellants) to pay attorney fees and expenses of approximately $15,000 to plaintiffs’ lawyers.

Appellants requested a certificate of immediate review, which the trial court denied. Appellants then filed a motion for reconsideration of the orders entered on October 27, 2010, February 8, 2011 and April 1, 2011. The trial court did not rule on this motion, and on July 8, 2011, Wilson filed a motion for contempt, to strike Allison’s answer, enter default judgment and award attorney fees based on appellants’ failure to pay the fees and expenses awarded by the court in the April 1 order.

On January 5, 2012, the court held a hearing on Wilson’s motion for contempt and defendants’ motion to transfer. The court denied the motion to transfer and found appellants in contempt for having failed to pay the attorney fees awarded in the April 1, 2011 order. Further, the court found there was no justification for the failure to comply with the order and struck Allison’s answer as a sanction for the contempt. The court did provide, however, that appellants could purge the order of contempt if the attorney fees were paid by 5:00 p.m. on January 6, 2012.

Appellants filed their notice of appeal to this Court the next day, specifically seeking appellate review of the contempt order and denial of the motion to transfer, which were entered on January 5, 2012, as well as the October 27, 2010 order granting Wilson’s motion to serve Sandifer beyond the statute of limitation, the February 8, 2011 order granting Wilson’s motion for sanctions, and the April 1, 2011 order granting Wilson’s request for attorney fees and expenses.

1. As an initial matter, Wilson contends that we do not have jurisdiction to consider the orders that were entered prior to January 5, 2012, because those orders were not appealed within 30 days of entry as required by OCGA § 5-6-38 (a). But

[w]here an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere. . . .

OCGA § 5-6-34 (d).

OCGA § 5-6-34 (a) (2) expressly authorizes a direct appeal from an order of contempt, and thus, pursuant to OCGA § 5-6-34 (d), we have jurisdiction to consider the prior orders specified in the notice of appeal.

2. We now turn to appellants’ arguments. In their first two enumerations of error, appellants challenge the trial court’s finding that Sandifer was evading service and that, therefore, Wilson could serve him by publication (February 8, 2011 order). But Sandifer was in fact personally served; thus, the trial court’s decision to allow him to be served by publication has been rendered moot. Further, Sandifer is not a party to this appeal, and the trial court’s determination that he was evading service does not appear to be properly before us.

3. Appellants next contend that the trial court abused its discretion by finding that Wilson exercised due diligence in attempting to locate and serve Sandifer (October 27, 2010 order). As stated above, the court held a hearing before issuing this order, but those proceedings were not transcribed. Thus, without knowing what transpired at that hearing, we have no basis to second guess the trial court’s decision. “[W]here the transcript is necessary, as in the case sub judice, and the appellant omits it from the record on appeal or fails to submit a statutorily authorized substitute, the appellate court must assume the judgment below was correct and affirm.” (Citations and punctuation omitted.) Atwood v. Southeast Bedding Co., 236 Ga. App. 116 (1) (511 SE2d 232) (1999). Blue v. Blue, 279 Ga. 550 (615 SE2d 540) (2005); Amaechi v. Somsino, 259 Ga. App. 346, 347 (577 SE2d 48) (2003).

4. Appellants next contend that the trial court’s failure to recite a statutory basis for an award of attorney fees and sanctions in the October 27 order violated their procedural due process rights. However, that order merely stated that the court would entertain a motion to compel and consider awarding fees and expenses in the event Sandifer’s location was not disclosed through standard discovery procedures. We fail to see how the failure to recite a specific statutory basis for this contingent award of attorney fees violated appellants’ procedural due process rights.

5. We now turn to appellants’ fifth, sixth and seventh enumerations of error in which they contend, for various reasons, that the trial court erred by awarding attorney fees under OCGA § 9-11-37 (a) (4) (A) as a sanction for discovery violations. “A trial court has broad discretion to control discovery, including the imposition of sanctions, and this Court will not reverse the trial court’s ruling on such matters absent the showing of a clear abuse of discretion.” (Citation and punctuation omitted.) Alexander v. Atlanta Autosave, Inc., 272 Ga. App. 73, 78 (5) (611 SE2d 754) (2005). Amaechi, 259 Ga. App. at 347.

Appellants argue that because there was no prior order compelling discovery, attorney fees were not authorized by OCGA § 9-11-37 (a) (4) (A). We agree.

“As a general rule, Georgia law does not provide for the award of attorney fees even to a prevailing party unless authorized by statute or by contract.” (Citation omitted.) Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). A motion to compel pursuant to OCGA § 9-11-37 (a) is appropriate when a party seeks more complete answers to allegedly incomplete or evasive discovery responses. See Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 437 (1), (2) (254 SE2d 825) (1979). And, without question, OCGA § 9-11-37 (a) (4) (A) allows the successful proponent of a motion to compel to recover fees and expenses incurred in bringing the motion, and this award may be made against the party whose conduct necessitated bringing the motion, the party’s attorney or both.

Although Allison submitted to a deposition and timely responded to Wilson’s interrogatories that were hand delivered at the October 21 hearing, Wilson obviously was not satisfied with Allison’s discovery responses, and therefore she was entitled to seek an order from the court compelling more adequate responses. Mayer, 243 Ga. at 438 (2). And, if the court granted her motion, Wilson would have then been entitled to recover the attorney fees and expenses she incurred in bringing the motion pursuant to OCGA § 9-11-37 (a) (4) (A).

Clearly, that is what the trial court thought had occurred here when it entered the April 1 order directing appellants to pay fees under OCGA § 9-11-37 (a) (4) (A). But we are constrained to agree with appellants that the record shows otherwise. First, the trial court’s order of October 27 cannot be treated as a motion to compel since it clearly stated that the court would “entertain” a motion to compel and “consider” awarding attorney fees if Sandifer’s location was not provided through standard discovery measures. Thereafter, Allison filed her interrogatory responses, in which she disclosed partial addresses where Sandifer might be served, as well as her sister’s cell phone number. A few weeks later, Wilson filed what she denominated a motion to compel but, as appellants assert, that motion did not seek to have the court compel Allison to do anything and barely mentioned Allison’s interrogatory responses; rather that motion sought to have Allison’s answer stricken and the entry of a default judgment.

The court then held a hearing on the motion. As appellants further note, the order entered following that hearing did not compel Allison to do anything; rather, that order found Allison in contempt of the October 27 order and stated that Wilson would be entitled to fees on that basis. However, at the March 22, 2011 hearing, the court stated it had granted the motion to compel at the February hearing, and, as stated above, ultimately awarded fees to Wilson on the basis that she was entitled to recover the fees she incurred in seeking and obtaining an order compelling discovery, not because she was in contempt.

Further, because the trial court stated in its February 8 order that it was awarding fees based on a violation of its October 27 order and made no mention of an attorney fee award under OCGA § 9-11-37 (a) (4) (A), we are hard pressed to say that appellants were provided with an opportunity to be heard on whether fees should be awarded under that section. The transcript from the February 1 hearing clearly indicates that the trial court irrevocably decided to award fees at that time, leaving for resolution at a subsequent hearing only the amount of fees and who would have to pay them. Appellants were not informed that fees were being awarded under OCGA § 9-11-37 (a) (4) (A), despite defendants’ counsel’s repeated entreaties to the court to disclose the statutory basis for the award so they could prepare for a hearing; rather, the court informed them that the award was being made for contempt of the October 27 order.

Based on the foregoing, we conclude that Wilson was not entitled to an award of attorney fees under OCGA § 9-11-37 (a) (4) (A). Accordingly, we reverse the trial court’s April 1, 2011 order.

6. In light of our holding in Division 5, it is unnecessary for us to consider appellants’ contention that the award was excessive.

7. Because we conclude that the trial court erred by assessing attorney fees and expenses against appellants, as stated in Division 5, it follows that the order of January 5, 2012, holding appellants in contempt and striking Allison’s answer based on her failure to comply with that order must likewise be reversed. Thus, we need not consider appellants’ enumerations of error challenging the contempt order.

8. Lastly, we consider whether the trial court erred by denying defendants’ motion to transfer venue from Fulton County to Clayton County.

The denial of a motion to transfer is reviewed for an abuse of discretion,... and we will affirm the trial court’s findings on disputed factual questions relating to venue if there is any evidence to support them. But we review de novo the trial court’s application of the law to undisputed facts.

Decided March 21, 2013.

Worsham, Corsi, Scott & Knighten, Tavis L. Knighten, M. Katherine Durant, for appellants.

J. Matthew Dwyer, Jr., W. Winston Briggs, Sarah G. Adle, for appellees.

(Citation and punctuation omitted.) Killearn, Inc. v. Southern Structural, Inc., 308 Ga. App. 494, 495-496 (1) (707 SE2d 882) (2011). Mariner Healthcare, Inc. v. Foster, 280 Ga. App. 406, 411 (4) (634 SE2d 162) (2006). In support of this motion, defendants submitted their affidavits, averring that they were residing in Clayton County on February 8, 2010, the date the complaint was filed. However, in his deposition, Sandifer provided conflicting and contradictory testimony about where he was living at that time, although he explained the contradictions by saying it was difficult for him to remember specific dates and specific addresses because he had moved numerous times since he moved to Georgia as a child, and had moved several times between the date of the accident and the date the complaint was filed. Further, Sandifer’s driver’s license had a Fulton County address, and he had never registered to vote in any county but Fulton County. Although the trial court’s order denying the motion to transfer did not contain any specific factual findings, Sandifer’s deposition was before the court at the venue hearing, and the court clearly considered his testimony demonstrating his uncertainty concerning when he lived where, and in particular his testimony that he was unsure whether his averment in his affidavit that he was residing in Clayton County at the time that suit was filed was true. The trial court resolved these discrepancies against the motion to transfer, and determined that venue was proper in Fulton County, the county where Sandifer had lived for much, if not all, of the relevant time. Based on the record before us, we cannot say that the trial court abused its discretion by denying the motion to transfer.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and McFadden, J., concur.

       State Farm Mutual Insurance Company was also sued, but the parties agreed to dismiss State Farm without prejudice.

       Wilson’s husband, appellee Hepburn George Wilson, filed a separate loss of consortium claim against both defendants, and the appeal in that case has been docketed in the Court as Case No. A12A2257. These appeals, however, present identical issues, and we will refer to both appellees as plaintiff or Wilson.

       Although it appears undisputed that Allison’s deposition was taken on August 2, 2010, it was never filed of record in the trial court, despite Wilson’s counsel’s unsuccessful attempt to e-file it on April 22, 2011.

       Sandifer’s mother is Allison’s sister.

       On March 31, 2010, Allison M. McDonald, of the Law Offices of Tavis L. Knighten, P.C., filed an entry of appearance on behalf of both Sandifer and Allison.

       Wilson attached various e-mails and letters to her motion, which she said demonstrated her attempts to perfect service or obtain acknowledgments from both defendants; one of these attachments was a reply e-mail from McDonald in which she reiterated Sandifer’s continued refusal to acknowledge service, but pointed out that Sandifer had been successfully served in other lawsuits arising out of this accident.

       During the hearing, Wilson’s counsel referred extensively to Allison’s deposition testimony, despite the fact that the deposition had never been filed of record in the trial court. Further, Wilson’s attorneys outlined Allison’s prolonged failure to acknowledge service after she agreed to do so, but ultimately the parties resolved that issue by agreeing that Allison’s answer would not be stricken if she agreed to drop her service defenses.

       In addition to McDonald, defendants were also represented at the hearings by McDonald’s co-counsel, Tavis Knighten, and “defendants’ counsel” will be used to refer to either McDonald or Knighten. However, although it is somewhat cumbersome and confusing, at times it is necessary for us to refer to McDonald individually.

       It is not clear from either the February 1 hearing transcript or the written order entered on February 8 what directive from the October 27, 2010 order the court believed to have been violated.

       The court deferred ruling on a pending motion to transfer venue to Clayton County.

       Plaintiff’s counsel raised the verification issue for the first time during the March 22 hearing, but not until both sides had made extensive reference to the interrogatory responses.

       For instance, at the February 1, 2011 hearing, the trial court stated that McDonald’s statement at the October 21,2010 hearing that Sandifer had been in her office was “what turned Pier] around on this thing.” Thus, it is clear that what was presented at that hearing was pivotal to the trial court’s decision.

       Aparty may seek immediate sanctions without the necessity of a motion to compel when there has been a total failure to respond to discovery. Rivers v. Goodson, 184 Ga. App. 70, 72 (2) (360 SE2d 740) (1987); Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876 (429 SE2d 264) (1993) (on motion for reconsideration).

       OCGA § 9-11-37 (a) (4) (A) clearly contemplates a hearing prior to an award of fees incurred in bringing a successful motion to compel:
      If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
      (Emphasis supplied.)

       We thus find it unnecessary to consider appellants’ other challenges to the attorney fee award.

       There does not appear to he any question that Allison was, in fact, residing in Clayton County at that time.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A12A2265.
    OXMOOR PORTFOLIO, LLC v. FLOORING & TILE SUPERSTORE OF CONYERS, INC.
    (740 SE2d 363)
   PHIPPS, Presiding Judge.

Oxmoor Portfolio, LLC filed this interlocutory appeal from the trial court’s order granting a motion to set aside a default judgment in a garnishment proceeding, which motion was brought by Flooring & Tile Superstore of Conyers, Inc. (“FTSC”) pursuant to OCGA § 9-11-60 (d) (3). The issues in this appeal are (1) whether FTSC was required to satisfy the requirements of OCGA § 18-4-91 in order to bring its motion pursuant to OCGA § 9-11-60 (d) (3); and (2) whether the court erred in finding that FTSC showed a nonamendable defect appearing on the face ofthe record, as required by OCGA § 9-11-60 (d) (3). We hold that FTSC was not required to satisfy the requirements of OCGA § 18-4-91 in order to bring its motion pursuant to OCGA § 9-11-60 (d) (3), but that the trial court erred in finding that FTSC satisfied the nonamendable defect requirement of OCGA § 9-11-60 (d) (3). Therefore, we reverse the judgment of the trial court.

Oxmoor commenced a continuing garnishment action, naming FTSC as the garnishee and “Patrick D. Parker a/k/a Pat Parker” as the defendant. Oxmoor stated in its affidavit of continuing garnishment that the defendant was indebted to Oxmoor on a judgment and that FTSC was believed to be an employer of the defendant. FTSC was served with the summons on April 12, 2011, and the sheriff’s entry of service shows that service was made upon “Patrick Parker.” On May 26, 2011, an answer was filed on FTSC’s behalf, asserting therein that “Pat Parker” was not and had not been an employee of FTSC, and that FTSC possessed none of his assets. FTSC’s answer was signed by someone identified as the “Garnishee”; the name was handwritten (only) and not legible. According to FTSC, the defendant’s son, also named Patrick D. Parker, filed the answer on behalf ofFTSC. Oxmoor filed a traverse to the answer, asserting that FTSC’s answer was “untrue or legally insufficient.”

In December 2011, the trial court entered default judgment against FTSC. In its order, the court stated that Patrick D. Parker, who was the named defendant in the case and not an attorney, had filed an answer on behalf of the garnishee (which was a corporation), that a corporation could be represented only by an attorney, and that the answer filed by Patrick D. Parker on behalf of FTSC was a mere nullity and could not be considered by the court.

On March 16, 2012, through counsel, FTSC filed a motion to set aside the default judgment pursuant to OCGA § 9-11-60 (d) (3), asserting that the order granting the default judgment contained a nonamendable defect which appeared on the face of the record. That defect, FTSC argued, was that the answer should not have been dismissed as a nullity; rather, FTSC should have been permitted an opportunity to amend the answer to insert the name and signature of an attorney. In the motion, FTSC stated that the registered agent and officer of FTSC, Patrick D. Parker (to whom FTSC referred as “son Parker”), had filed a timely answer on behalf of FTSC, and that the court had mistakenly stated in the order that son Parker was the named defendant in the garnishment action, when the defendant was instead his father, with whom son Parker shared a name. The trial court granted FTSC’s motion to set aside and permitted FTSC to amend the answer.

1. Oxmoor contends that the trial court erred in setting aside the default judgment because FTSC failed to comply with OCGA § 18-4-91. According to Oxmoor, the provisions of OCGA § 18-4-91 are “mandatory preconditions” to modify or set aside a default judgment entered against a garnishee, and the court cannot set aside a judgment pursuant to OCGA § 9-11-60 (d) unless the garnishee complied with the former statute. We disagree.

When the issue is a question of law, such as here (whether FTSC was required to comply with OCGA § 18-4-91 in an action brought under OCGA § 9-11-60), we owe no deference to the trial court’s ruling and apply the “plain legal error” standard of review. OCGA § 18-4-90 provides:

In case the garnishee fails or refuses to file a garnishee answer by the forty-fifth day after service of the summons, the garnishee shall automatically be in default. The default may be opened as a matter of right by the filing of a garnishee answer within 15 days of the day of default and payment of costs. If the case is still in default after the expiration of the period of 15 days, judgment by default may be entered at any time thereafter against the garnishee for the amount claimed to be due on the judgment obtained against the defendant.

OCGA § 18-4-91 pertinently provides that when a judgment is rendered against a garnishee under OCGA § 18-4-90, the garnishee may, on timely-filed motion and upon payment of all accrued costs of court, have the judgment modified so that the amount of the judgment shall be reduced to an amount equal to the greater of $50 or $50 plus 100 percent of the amount by which the garnishee was indebted to the defendant.

OCGA § 9-11-60 (d) (3) pertinently provides that a motion may be brought to set aside a judgment based upon a nonamendable defect which appears upon the face of the record or pleadings.

No language in either OCGA § 18-4-91 or OCGA § 9-11-60 requires a party to comply with OCGA § 18-4-91 as a precondition to obtaining relief pursuant to OCGA § 9-11-60. “A court cannot by construction add to, take from, or vary the meaning of unambiguous words in a statute.” “We can not add a line to the law.”

We point out that the two statutes serve different purposes. OCGA § 18-4-91 specifically provides a procedure for a garnishee to have a judgment entered against it modified, while OCGA § 9-11-60 specifically provides a procedure for a garnishee to have a judgment entered against it set aside. As this court expressly recognized in Lewis v. Capital Bank, we have treated motions under OCGA § 9-11-60 to set aside default judgments in garnishment proceedings and motions under OCGA § 18-4-91 to modify such judgments as separate and distinct types of motions. Thus, FTSC was not required to comply with OCGA § 18-4-91 in order to obtain relief pursuant to OCGA § 9-11-60 (d) (3).

Oxmoor’s reliance on J. E. E. H. Enterprises v. Montgomery Ward & Co. as requiring compliance with OCGA § 18-4-91 where a motion is brought pursuant to OCGA § 9-11-60 (d) (3) is misplaced. In that case, this court held that the garnishee had not established a proper basis for a motion to set aside, pursuant to OCGA § 9-11-60 (d), because no nonamendable defect appeared on the face of the pleadings and no jurisdictional error was raised. The court added that “the payment of accrued court costs is a statutory prerequisite to a motion to modify a default judgment of garnishment. See OCGA § 18-4-91.” But FTSC did not make a motion pursuant to OCGA § 18-4-91. In any event, J. E. E. H. did not hold that a garnishee must comply with OCGA § 18-4-91 as a precondition to seeking to set aside a judgment pursuant to OCGA § 9-11-60 (d) (3).

In their briefs, the parties discuss at length whether this issue is controlled by this court’s decision in Lewis. It is not. In Lewis, this court rejected the garnishor’s argument that, because “OCGA § 18-4-115 (b) otherwise makes provision for setting aside a default judgment in a continuing garnishment case[,]... OCGA § 9-11-60... never can be applied with respect to such a judgment”; we held that the garnishee was entitled to seek relief from a default judgment pursuant to OCGA § 9-11-60 (d) (l). In that case, the garnishee had not been properly served and the trial court had not obtained jurisdiction of the person of the garnishee; because the default judgment was not one entered as provided in OCGA § 18-4-115 (a), OCGA § 18-4-115 (b) afforded no relief, and the garnishee was entitled to bring a motion to set aside pursuant to OCGA § 9-11-60 (d) (l). Inasmuch as Lewis did not address the issue raised in this case (namely, whether a garnishee must comply with OCGA § 18-4-91 as a precondition to seeking relief under OCGA § 9-11-60 (d) (3)), it does not control here.

2. Oxmoor contends that the trial court erred in granting the motion to set aside the default judgment because FTSC failed to demonstrate that a nonamendable defect appeared on the face of the record. We agree.

OCGA § 9-11-60 (d) (3) permits a judgment to be set aside on the basis of a “nonamendable defect which appears upon the face of the record or pleadings.” “Where ... the record shows on its face that the default was entered on an improper basis, there is a nonamendable defect on the face ofthe record.” “Under [OCGA § 9-11-60 (d) (3)],... the pleadings must affirmatively show no claim in fact existed.” “We review a trial court’s ruling on a motion to set aside a judgment under OCGA § 9-11-60 (d) for abuse of discretion.” In its motion to set aside, FTSC asserted:

[T]he [December 2011] Order contains a non-amendable defect which appears on the face of the record. . . . Specifically, the timely filed answer of son Parker, as CEO and registered agent of Garnishee, should not have been dismissed as a nullity. Rather, Garnishee should have been permitted an opportunity to amend the Answer to insert the name and signature of an attorney.

The record shows that FTSC’s answer was not signed by an attorney. Indeed, because FTSC (a corporation) could be represented in a court of record only by an attorney, the purported answer signed and filed by an officer or registered agent was defective. Although the defect could have been cured as a matter of right before the entry of a pretrial order and thereafter with leave of court before judgment, it was not; indeed, there is no showing (or even a claim) that FTSC sought to cure the defect in the answer before default judgment was entered but that the court prevented it from doing so. After judgment was entered, it was too late to amend the answer.

FTSC failed to amend the defective answer as permitted by law, and pursuant to OCGA § 18-4-90, it was automatically in default. Thus, the pleadings do not affirmatively show that no claim in fact existed and that there was no basis upon which to enter a default judgment. Because FTSC failed to establish the presence of a nonamendable defect on the face of the record or pleadings, the court abused its discretion by granting the motion to set aside the default judgment.

Judgment reversed.

Ellington, C. J., and Dillard, J., concur.

Decided March 21, 2013.

Simpson, Uchitel & Wilson, Vivian H. Uchitel, Andrew L. Hagenbush, for appellant.

Elizabeth J. Pope, for appellee.

       FTSC filed a second answer on July 13,2011, which was essentially identical to the first answer. In order to avoid confusion, our reference in this opinion to the answer is to the first answer filed (May 2011).

       The preprinted “Answer of Continuing Garnishment” form filed in this case included a designated space for a signature, in which a signature was written. The words “Garnishee or Attorney-at-Law” were preprinted below the signature space, and the word “Garnishee” was circled.

       Patrick D. Parker filed an affidavit on March 16,2012, averring that, at the time he made the affidavit, he was the registered agent and CEO ofFTSC (since August 2008); that he always filed the answers to garnishments against FTSC; that his father, Pat D. Parker, was never employed by FTSC; and that FTSC possessed none of his father’s assets.

       See OCGA § 18-4-62 (a), pertinently providing that the garnishee’s answer must be filed with the court not sooner than 30 days and not later than 45 days after the service of the summons. The answer here was filed on May 26, which was 44 days after service.

       FTSC does not claim that it complied with the time or payment of costs requirements set out in OCGA § 18-4-91.

        W. Ray Camp, Inc. v. Cavalry Portfolio Svcs., 308 Ga. App. 597, 599 (708 SE2d 560) (2011) (question involving the type of notice required by OCGA § 18-4-91 was one of law) (citation and punctuation omitted).

       See OCGA §§ 18-4-115 (b) (regarding entry of default judgment in continuing garnishment proceedings, and providing: “The garnishee may obtain relief from default judgment entered as providedin [OCGA § 18-4-115 (a)] upon the same conditions as provided in [OCGA §] 18-4-91.”); 18-4-110 (pertinently providing: “Unless otherwise specifically provided in this article, the methods, practices, and procedures for continuing garnishment shall be the same as for any other garnishment as provided in this chapter.”).

        City of Atlanta v. Clayton County Bd. of Tax Assessors, 271 Ga. App. 84, 86 (1) (608 SE2d 710) (2004) (citation and punctuation omitted).

        State v. Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006) (citation and punctuation omitted).

       311 Ga. App. 795 (717 SE2d 481) (2011).

       Id. at 798, n. 3.

       172 Ga. App. 58 (1) (321 SE2d 800) (1984).

       Id.

       Id. (citations omitted; emphasis supplied). It is not clear from the opinion in J. E. E. H. whether the garnishee sought relief pursuant to OCGA § 9-11-60 (d), OCGA § 18-4-91, or both statutes.

        J. E. E. H., supra.

       Supra.

       Id. at 797 (1). Regarding the reference to OCGA § 18-4-115 (as opposed to OCGA § 18-4-91), see Lewis, supra at 798, n. 3, and note 7, supra, of the instant opinion.

       OCGA § 9-11-60 (d) (1) provides that a motion to set aside may be based upon “[l]ack of jurisdiction over the person or the subject matter.”

        Lewis, supra at 797-798 (1).

        Shields v. Gish, 280 Ga. 556, 558 (2) (629 SE2d 244) (2006) (citations omitted); Hiner Transport v. Jeter, 293 Ga. App. 704, 705 (667 SE2d 919) (2008) (In cases involving a default judgment, a nonamendable defect arises “[wjhere . . . the record shows on its face that the default was entered on an improper basis.”) (punctuation and footnote omitted).

        Fudge v. Weissinger, 201 Ga. App. 409, 410 (1) (411 SE2d 62) (1991) (citation, punctuation and emphasis omitted); see First Baptist Church of Roswell v. King, 208 Ga. App. 250, 252 (1) (430 SE2d 635) (1993).

        Stamey v. Policemen’s Pension Fund Bd. of Trustees, 289 Ga. 503,504 (1) (712 SE2d 825) (2011) (citations and punctuation omitted).

        Eckles v. Atlanta Technology Group, 267 Ga. 801, 805 (2) (485 SE2d 22) (1997) (in this state, only a licensed attorney is authorized to represent a corporation in a proceeding in a court of record); Peachtree Plastics v. Verhine, 242 Ga. App. 21, 22 (528 SE2d 837) (2000) (because a corporation can only be represented in a court of record by an attorney, the answer filed by its nonattorney president was defective). Note that the legislature revised OCGA § 18-4-8 (b), effective February 7, 2012 (after the answer was filed and default judgment was entered in this case), and it now pertinently provides that the execution and filing of a garnishee answer may be done by a corporate entity’s authorized officer or employee. Ga. L. 2012, p. 2, § 3.

       See R. A. F. v. Robinson, 286 Ga. 644, 647 (2) (690 SE2d 372) (2010) (under OCGA § 9-11-15 (a), a party may amend Ms pleadings without leave of court at any time before the entry of a pretrial order, and thereafter only by leave of court or by written consent of the adverse party; although the right to amend is broad, it may not he exercised after a case has been tried and a judgment rendered therein which has not been set aside or vacated); Edenfield & Cox v. Mack, 282 Ga. App. 816, 817-818 (640 SE2d 343) (2006) (a pleading not signed by an attorney is not null and void, as such a defect can be cured by amendment); Associated Doctors of Warner Robins v. U. S. Foodservice of Atlanta, 250 Ga. App. 878-879 (1) (553 SE2d 310) (2001) (corporation’s answer filed by nonattorney officer was defective, but the defect was amendable; defect was cured when, prior to entry of a pretrial order, an attorney representing the corporation filed an amended answer which related back to the date of the original answer; thus, trial court erred in striking the amended answer and denying motion to open default); Peachtree Plastics, supra (trial court erred by striking amended answer and granting default judgment where defendant had cured defect by filing an amended answer prior to the entry of a pretrial order).

       See generally Tidikis v. Network for Medical Communications & Research, 274 Ga. App. 807, 813 (5) (619 SE2d 481) (2005) (party asserting that court should have allowed him leave to amend complaint must establish that the court prevented him from amending his complaint).

       See R. A. F., supra.

       See OCGA § 9-11-60 (d) (3). Compare Stamey, supra at 506 (1) (stating that “OCGA § 9-11-60 (d) (3) authorizes a trial court to set aside a judgment based upon a nonamendable defect which appears on the face of the record or pleadings. Under this paragraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed”', court did not err in setting aside default judgment as record affirmatively revealed that answer was timely filed and there was no basis upon which to claim a default judgment) (punctuation and footnote omitted; emphasis supplied).

       See Horizon Credit Corp. v. Lanier Bank & Trust Co., 220 Ga. App. 362, 363-364 (1) (469 SE2d 452) (1996) (the absence of a statutorily-required signature on an affidavit for issuance of summons of garnishment was an amendable defect; thus, there was no nonamendable defect on the face of the record or pleading, and the trial court erred in granting a motion to set aside default judgment brought pursuant to OCGA § 9-11-60 (d) (3)); see generally First Baptist Church of Roswell, supra at 252 (1) (where movant failed to show a nonamendable defect appearing on the face of the record, the trial court erred by setting aside the judgment under OCGA § 9-11-60 (d)). Compare Shields, supra; Fulton v. State of Ga., 183 Ga. App. 570, 572-573 (359 SE2d 726) (1987) (a nonamendable defect appeared on the face of the record where court had granted default judgment based upon the misapplication of a superior court rule regarding failure to respond to a calendar call).


author: Boggs, Judge.

text:
    A12A2287.
    SEITMAN v. THE STATE.
    (740 SE2d 368)
   Boggs, Judge.

Following a bench trial, Vickie Seitman was convicted of eight counts of serious injury by vehicle and one count of reckless driving. Her amended motion for new trial was denied, and she appeals, asserting as her sole enumeration of error that she did not voluntarily, knowingly, and intelligently waive her right to a jury trial. Based on the record and the evidence presented below, however, the trial court’s finding that there was sufficient evidence of a waiver was not clearly erroneous. We therefore affirm.

A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citations and punctuation omitted.) Whitaker v. State, 256 Ga. App. 436, 439 (2) (568 SE2d 594) (2002). And “[t]he question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous.” (Citations and punctuation omitted.) Id.

The record contains a pleading, signed by both Seitman and her trial counsel, stating: “WAIVER OF JURY TRIAL. COMES NOW, the Defendant in the above styled case and files this her waiver of jury trial. Respectfully submitted on May 4, 2011.” In addition, the trial court asked trial counsel before trial began if Seitman had waived a trial by jury, and he replied, ‘Yes, Your Honor, we filed that.”

As Seitman correctly observes, a waiver by counsel, standing alone, cannot suffice for the State to meet its burden. Balbosa v. State, 275 Ga. 574, 575 (1) (571 SE2d 368) (2002) (record showed only oral waiver by counsel in appellant’s presence); Jones v. State, 294 Ga. App. 169, 169-170 (1) (670 SE2d 104) (2008) (written waiver filed by attorney requesting nonjury trial insufficient in absence of any extrinsic evidence). “Essentially, the record must affirmatively show that the defendant made the decision to waive his right to a jury trial, or at least that he or she agreed with the decision.” Jackson v. State, 253 Ga. App. 559, 561 (560 SE2d 62) (2002). Here, as required by our Supreme Court, the State presented additional extrinsic evidence from which the trial court could conclude that Seitman’s waiver was knowing and intelligent.

At the hearing on the motion for new trial, trial counsel testified to his discussions with Seitman about her options, and the strategic reasons for waiving a jury trial:

Q: At some point did you decide that it would be in her best interest to have a bench trial?
A: Yes.
Q: Did you discuss that with her?
A: Yes.
Q: What was the extent of your conversation . . . regarding this issue?
A: I don’t think we talked about it one time. We talked about it several times. A jury trial was something that we felt if we went to a jury trial we knew some of these issues we were not going to be able to win but some we hoped that we would.
If we went to a jury trial and we lost, the likelihood, normally, is that if you take three or four days to try a jury trial and you lose, then the likelihood of getting a greater sentence is much greater, so we really didn’t have many options. It was either enter a plea, do a nonjury trial, or do a jury trial, and we discussed those three options.
Vickie didn’t want to enter a plea. She didn’t feel as though jail was something that she wanted to enter a plea to.
And so, the only option, really, that we had left was a nonjury trial. We had hoped that we might be able to win some of the counts.

Defense counsel testified that he has over 40 years of experience as a trial attorney and has tried over 100 cases to a verdict. He testified that he explained to Seitman that she had a right to a jury trial and that he believed a judge would be more receptive than a jury to the technical legal defense that they had discussed. This testimony supported the trial court’s conclusion that the waiver was knowing, voluntary, and intelligent. See Jacobs v. State, 299 Ga. App. 368, 371 (1) (683 SE2d 64) (2009) (counsel testified to discussions with appellant concerning relative risks and benefits of bench and jury trial).

In addition, Seitman is well-educated and holds a college degree. See Payne v. State, 219 Ga. App. 439, 440 (465 SE2d 724) (1995) (trial court’s determination that defendant understood right to jury trial not clearly erroneous in light of defendant’s high school diploma and two years of college). Seitman also testified that she had been summoned to jury service, had been through the voir dire process, and had actually served on a jury. And she acknowledged that her signature was on the waiver of jury trial in the record. This testimony and the record, considered as a whole, support the conclusion that Seitman was informed about the advantages and disadvantages of having a jury trial and made an independent decision to move forward with a bench trial. Whitaker v. State, 286 Ga. App. 143, 146-147 (2) (648 SE2d 396) (2007).

We find no merit in Seitman’s contention that to knowingly and intelligently waive a jury trial, she must be informed by the trial court of all the complexities of the jury process. The cases Seitman relies upon are not dispositive, particularly in light of our standard of review. In Balbosa, supra, the State’s only evidence of waiver was an oral waiver by counsel in appellant’s presence. 275 Ga. at 575 (1). In Guise v. State, 303 Ga. App. 791 (694 SE2d 378) (2010), the defendant was given a form regarding his right to counsel and another regarding his right to trial by jury; he signed the first but not the second. Moreover, his trial counsel filed a demand for jury trial a month after the unsigned form was presented to the defendant. Id. at 792 (2). The trial court found that, under those circumstances, the mere fact that the defendant acquiesced in the bench trial was insufficient and “the trial court should have conducted a colloquy with” the defendant. Id. at 793 (2).

Seitman also relies upon Jackson, supra, 253 Ga. App. at 560, and Jones v. State, 302 Ga.App. 147 (690 SE2d 460) (2010), to contend that the trial court is required to question all defendants. But in Jones, we affirmed when one of the numerous facts showing a knowing and intelligent waiver was a trial court colloquy with appellant. Id. at 150-151 (2). And in Jackson, supra, the record showed only an oral waiver by counsel with no additional supporting facts, and we held that “[t]he record’s silence prevents the [S]tate from meeting its burden of demonstrating a knowing and voluntary-waiver.” 253 Ga. App. at 560.

Decided March 21, 2013.

Hall Hirsh, Daniel M. Hirsh, for appellant.

Patrick H. Head, District Attorney, Anna G. Cross, D. Victor Reynolds, Assistant District Attorneys, for appellee.

Although Georgia appellate courts have often noted that it would be preferable to have defendant’s personal participation spread on the record in open court, to forestall subsequent claims of lack of participation or an intelligent or knowing waiver, nonetheless, there is no legal precedent requiring an in court waiver of the right of a jury trial.

(Citations, punctuation and footnotes omitted.) Davis v. State, 287 Ga.App. 783, 785(2) (653SE2dl07) (2007). While a colloquy with the trial court may establish a knowing and voluntary waiver, it is not required when the State presents other extrinsic evidence sufficient to establish a waiver. Id. at 786 (2).

Based upon the totality of the circumstances presented here, the trial court’s conclusion that Seitman made a personal, knowing, and intelligent waiver of her right to a trial by jury was not clearly erroneous. We therefore affirm.

Judgment affirmed.

Doyle, P. J., and Andrews, P. J., concur.

       The trial court also found Seitman guilty on one count of DUI, but merged this count with counts 1-8.


text:
    A12A2348.
    LAUDERBACK v. THE STATE.
    (740 SE2d 377)
   MCMILLIAN, Judge.

Kenneth Lauderback was convicted by a jury of one count of reckless driving. He appeals following the denial of his motion for new trial, contending that the trial court erred in its charge to the jury, by denying his demurrer to the accusation, and that the evidence was insufficient. Having considered his claims of error, we now affirm.

Construed to support the verdict, as we must on appeal, the evidence presented at trial showed that on September 5, 2011, Lauderback was driving a Toyota truck on Upchurch Road in Henry County; Lauderback’s three sons were riding as passengers in the truck. A small dog had gotten off its leash and was running into yards and along the side of and into the road, and a young boy and his neighbor, Vickie Moore, were trying to catch the dog. Motorists traveling in both directions began stopping and exiting their vehicles to help catch the dog, and by the time Lauderback came upon the scene, both lanes were blocked except for the gap between the two vehicles that were facing each other in opposite lanes. According to the State’s witnesses, Lauderback was weaving through the vehicles without stopping or slowing down, causing him to almost sideswipe one of the parked vehicles. Moore was bending down to pick up the dog and did not see Lauderback’s car coming her way, and one of the motorists who had stopped to help pulled her out of the way so she would not be hit by Lauderback’s vehicle. Moore said she then implored Lauderback to stop but he drove around her and “gave [her] a ‘gesture.’ ” The commotion frightened the dog and it got away from the woman and ran up the hill, where it was struck and injured by Lauderback’s vehicle.

Lauderback did not stop after he hit the dog, and one of the motorists at the scene got back into his vehicle and followed Lauder-back. According to that witness, who obtained Lauderback’s tag number and provided it to the police, Lauderback did not appear to apply his brakes after he hit the dog and did not appear to stop at the stop sign at the top of the hill.

Lauderback’s son, who was 17 years old at the time of trial, testified in his father’s defense. He said that his father did stop and slow down when he came upon the scene, but then proceeded to drive cautiously through when it appeared clear to do so. The son also testified that he did not realize the dog had been hit.

Lauderback also testified at trial and said that he did not realize what was going on and thought at first that several cars had broken down in the road. He said he did stop when he came to the parked cars, and then proceeded to go “safely” around the vehicles. He denied that he was driving recklessly or with disregard for the safety of others, and said that he did not see Moore motioning him to stop until he was already driving past her. He also denied making any sort of gesture to Moore.

1. Contrary to Lauderback’s fifth enumeration of error, the evidence recited above as well as other evidence adduced at trial was sufficient to find him guilty of the offense of reckless driving as charged. It was for the jury to decide which version of events to believe, and the fact that the jury chose to believe the State’s witnesses does not render the evidence insufficient. Maloney v. State, 317 Ga. App. 460, 461 (731 SE2d 133) (2012); Banks v. State, 230 Ga. App. 881, 882 (1) (497 SE2d 821) (1998). This enumeration thus presents no basis for reversal. Winston v. State, 270 Ga. App. 664, 665 (1) (a) (607 SE2d 147) (2004).

2. Lauderback also contends that the trial court erred by denying his oral demurrer to the accusation, which was asserted after the jury was selected but before trial began. Lauderback was charged via accusation in the language of the reckless driving statute. At trial, he asserted that the failure to charge the particular manner in which the crime was committed rendered the accusation fatally deficient. The trial court initially took the demurrer under advisement and subsequently ruled that Lauderback’s challenge to the accusation was in the nature of a special demurrer and thus was untimely.

On appeal, Lauderback again complains that the accusation was fatally defective because it did not include any particularized facts and also points out that the accusation failed to include an allegation of the date as a material element of the offense. Regardless of how Lauderback frames his argument, the gist of his challenge is that the accusation did not provide him with sufficient information to form his defense, which is a challenge that must be brought by way of special demurrer.

If a defendant decides to challenge the validity, specificity or form of an indictment, he or she must file a general and/or special demurrer seeking to quash the indictment. A general demurrer challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime.

(Footnote omitted; emphasis in original.) State v. Wilson, 318 Ga. App. 88, 91 (1) (732 SE2d 330) (2012). “ ‘The true test of the sufficiency of the indictment to withstand a general demurrer ... is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective’---Adams v. State, 293 Ga. App. 377, 381 (3) (667 SE2d 186) (2008).” State v. Hood, 307 Ga. App. 439, 440-441 (706 SE2d 566) (2010). On the other hand, “a special demurrer merely objects to the form of an indictment and seeks more information or greater specificity about the offense charged. [Cits.]” (Emphasis in original.) Wilson, 318 Ga. App. at 92 (1). And accusations that do not allege a specific date on which the crime was committed are not perfect in form and are subject to a timely special demurrer. Hood, 307 Ga. App. at 441. Further, pursuant to OCGA § 17-7-110, special demurrers must be filed within ten days after the date of arraignment, unless the time for filing is extended by the court. Wilson, 318 Ga. App. at 92 (1). E.g., Stinson v. State, 279 Ga. 177, 180 (2) (611 SE2d 52) (2005); State v. Delaby, 298 Ga. App. 723, 724 (681 SE2d 645) (2009). Thus, the trial court did not err by finding that Lauderback waived his right to challenge the accusation by failing to timely file a written special demurrer. Accordingly, this enumeration presents no basis for reversal.

3. Lauderback next argues that the trial court should have given his requested charge on his sole defense of accident.

The defense of accident applies “where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” OCGA § 16-2-2.

But, a charge on accident is not authorized when the “accident” occurs as the defendant is driving recklessly. Black v. State, 222 Ga. App. 80, 81-82 (2) (473 SE2d 186) (1996); Helton v. State, 216 Ga. App. 748, 748-749 (455 SE2d 848) (1995) (defendant who was driving recklessly to evade police was not entitled to a charge on accident).

Dryden v. State, 316 Ga. App. 70, 77 (6) (728 SE2d 245) (2012). Davis v. State, 301 Ga. App. 484, 487 (2) (687 SE2d 854) (2009). Moreover,

the defense of accident is an affirmative defense, which is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it. Thus, if a defendant does not admit to committing any act which constitutes the offense charged, [he] is not entitled to a charge on the defense of accident.

(Punctuation and footnotes omitted.) Sevostiyanova v. State, 313 Ga. App. 729, 736 (9) (722 SE2d 333) (2012). As stated above, Lauderback testified at trial and denied that he drove recklessly or with any disregard for the safety of other persons or property. Thus, the trial court did not err by refusing to give his requested charge on accident. Davis, 301 Ga. App. at 487 (2); Winston, 270 Ga. App. at 670-671 (5).

4. Lauderback next contends that the trial court erred by refusing to give his requested charges on “bare suspicion” and “stopping, standing, or parking in the roadway.”

(a) First, the alleged criminal conduct of the other persons present at the scene was irrelevant. “The issue ... is not whether [the other motorists] were [stopping, standing, or parking in the roadway], but whether [Lauderback] drove recklessly. . . .” Winston, 270 Ga. App. at 666 (1) (d). Thus, the trial court did not err by refusing to give this requested charge.

(b) The trial court also did not err by refusing to give Lauder-back’s requested charge on bare suspicion. The evidence here, including the testimony of the two eyewitnesses, raised more than a mere suspicion of guilt. “A defendant is not entitled to charge on bare suspicion where the evidence raises more than a mere suspicion of his guilt.” (Citations and punctuation omitted.) Sherman v. State, 302 Ga. App. 312, 314 (3) (690 SE2d 915) (2010). Further,

[i]t is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principle, is not grounds for reversal____Carson v. State, 259 Ga. App. 21, 24 (5) (576 SE2d 12) (2002).

Singleton v. State, 297 Ga. App. 452, 454 (2) (677 SE2d 348) (2009). Here, the transcript reveals that the trial court completely and accurately instructed the jury on presumption of innocence, burden of proof and reasonable doubt. Because the charge as a whole covered the principles of law embodied in the bare suspicion charge, the trial court did not err by refusing Lauderback’s request to give this charge. Id.; Sherman, 302 Ga. App. at 314 (3).

5. Lauderback also contends that the trial court’s instruction on reckless driving and reckless disregard failed to sufficiently distinguish between civil and criminal liability and therefore allowed him to be convicted on a “lower level” of criminal intent.

The transcript shows that during its initial charge, the trial court explained to the jury that the crime of reckless driving requires a showing of criminal negligence, but that specific intent is not required. The court then defined criminal negligence for the jury “as reckless or wanton conduct that shows an indifference to the injurious result of the negligent acts, an indifference to the safety of others, and a lack of consideration for their welfare.” Following this charge, the court also instructed the jury that “[a]ny person who drives any vehicle in a reckless disregard for the safety of persons or property is guilty of the offense of reckless driving.”

During its deliberations, the jury sent out a request for a definition of reckless disregard. The trial court indicated that it was inclined to give a recharge based on language in Walden v. State, 273 Ga. App. 707, 711 (1) (616 SE2d 462) (2005), and asked counsel if they had another suggestion or better idea. Lauderback’s counsel indicated he did not know if he could provide a better definition, and after reviewing the language proposed by the trial court, stated for the record that he would let the court handle it as the court saw fit.

The trial court then gave the jury the following charge:

There is no legal definition of just [reckless disregard] that I can read to you as if I would [be] reading from a dictionary. However, I can give you further instruction related to the charge of reckless driving. Charges of reckless driving require proof of criminal negligence defined as not merely such negligence as may render one liable for damages in a civil suit, but recklessness or carelessness of such a character [as] to show a disregard of consequences or a heedless indifference for the safety and rights of others who might reasonably be expected to be injured thereby.

Following this charge, and after the jury resumed its deliberations, Lauderback’s counsel stated: “Just for the record, I want to reserve all my objections and the objection to that as being different than what reckless disregard is.” On appeal, Lauderback now argues, for the first time, that the trial court’s “re-charge” was flawed because it did not provide an additional instruction about what constitutes “civil negligence,” omitted “thoughtless” or “utter” before “disregard,” and confused the jury about the concept of “foreseeability” of the injury. Further, Lauderback contends these failures allowed the jury to convict him on a “significantly lowered” burden of proof.

Pursuant to OCGA § 17-8-58 (a) “[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” As set forth above, Lauderback initially appeared to acquiesce in the trial court’s proposed response to the jury’s question. Lauderback posed an objection after the charge was given, but that objection was general and without any mention of the specific deficiencies he now points out on appeal. Hence, Lauderback failed to preserve these objections for appellate review and is entitled to reversal only if the jury instruction constitutes “plain error.” OCGA § 17-8-58 (b); State v. Kelly, 290 Ga. 29, 31 (1) (718 SE2d 232) (2011). Blake v. State, 292 Ga. 516 (739 SE2d 319) (2013). And plain error will be found only if the jury instruction was erroneous; the error was obvious; the instruction likely affected the outcome of the proceedings; and the error seriously affects the failure, integrity, or public reputation of judicial proceedings. Kelly, 290 Ga. at 32-33 (2) (a).

Decided March 21, 2013

Ricky W. Morris, Jr., for appellant.

John A. Pipkin III, Solicitor-General, Brittany L. A. Lavalle, Assistant Solicitor-General, for appellee.

Although Lauderback does not mention plain error in his brief on appeal,

we will review properly enumerated and argued claims of jury instruction error regardless of whether the appealing party specifically casts the alleged infirmity as “plain error” [; however,] parties should be advised that the hurdle to establishing plain error is high, . . . and therefore that the failure to specifically articulate how the alleged error satisfies this high standard increases the likelihood that their claims in this regard will be rejected.

Kelly, 290 Ga. at 32 (1), n. 2.

Without belaboring the point, we do not believe that the trial court’s recharge on criminal negligence, which was a correct statement of the law, Walden, 273 Ga. App. at 711 (1), was obviously erroneous because it was not as clear as Lauderback now says it could have been. Further, and reviewing both the recharge and the initial charge together, we fail to see how the jury was confused to the extent that Lauderback was “convicted on a lower level of criminal intent.” Blake, 292 Ga. at 517 (2); Curry v. State, 291 Ga. 446, 453-454 (6) (729 SE2d 370) (2012). This enumeration thus also provides no basis for reversal.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       Upchurch Road is a two-lane road located in Henry County.

       The accusation charged Lauderback “with the offense of RECKLESS DRIVING ([OCGA §] 40-6-390), for that the said accused, did in HENRY COUNTY, Georgia, on or about September 05, 2011, unlawfully drive a vehicle in reckless disregard for the safety of persons or property, contrary to the laws of this state, the good order, peace and dignity thereof.”

       The accusation charged that Lauderback drove recklessly “on or about September 05, 2011.”


author: Doyle, Presiding Judge.

text:
    A12A2430.
    PENTAGON PROPERTIES, INC. et al. v. WHEAT et al.
    (740 SE2d 374)
   Doyle, Presiding Judge.

Pentagon Properties, Inc. (“PPI”), and Boyd Roane, Inc. (“BRI”), appeal the trial court’s denial of their motion for summary judgment and the final judgment in their dispossessory action against Charles and Nicole Wheat. We reverse and remand, for the reasons that follow.

Viewed in favor of the verdict, the record shows that in 2001, the Wheats signed a lease-purchase agreement for a mobile home owned by PPI and located in Cedar Village Mobile Home Community, which was owned and managed by BRI. Under the agreement, the Wheats were required to pay monthly lease payments in the amount of $375 to PPI and lot fees and utility costs to BRI. The agreement provided for a lease term, after which the Wheats would have the option to purchase the home for a stated sum payable over 12 months. The agreement also contained a merger clause, wherein the parties agreed:

This lease and any exhibits attached hereto contain the entire agreement of the parties [,] and no representations, inducements, promises [,] or agreements, oral or otherwise, between the parties not embodied herein by a written amendment executed by both parties shall be of any force or effect.

In 2006, Cedar Village filed a dispossessory action against the Wheats, alleging that they had failed to make required payments and thus breached the terms of the agreement. The Wheats filed a counterclaim, asserting that the lease-purchase agreement they signed required them to make $375 lease payments for five years (with a one-year purchase option at the end of the lease period) and that Cedar Village changed the lease term to ten years, requiring them to make $375 lease payments for ten years before electing the purchase option. The Wheats sought damages and an order directing Cedar Village to transfer title of the mobile home to them in May 2007. The Wheats also moved to transfer the case to superior court, which motion was granted.

Following discovery, PPI and BRI moved for summary judgment, arguing that the Wheats were bound by the four corners of the agreement, could not vary the agreement by parol evidence, and had not paid required lot and utility fees. The trial court denied the motion, finding issues of material fact, and the case proceeded to a bench trial.

Nicole Wheat testified that she and her husband met with Patti Roane, the PPI representative, in May 2001 and agreed to a lease-purchase of a mobile home with a lease term of five years (plus one extra year for the purchase option). According to Nicole, Roane printed out a lease-purchase agreement that did not have the dates and the year “plugged in” and showed it to the Wheats, explaining what the completed contract would say, including the five-year term. Nicole testified that the Wheats signed the signature page of the incomplete contract, and Roane told them that they would get a copy of it once she “put it all together.” Later, during the first week of June 2001, Nicole obtained a copy of the contract, and she put it away without reviewing it. Then, as the end of the five-year term approached, Nicole looked at the contract and saw that it contained a ten-year term.

Roane testified that the Wheats signed two original completed contracts, both of which contained the agreed upon ten-year lease term, and she denied that she ever showed them an incomplete contract. The lease-purchase agreement admitted into evidence during Roane’s testimony contained a ten-year lease term.

At the conclusion of the evidence, PPI and BRI sought a dispossessory order and back payments for the mobile home, lot rent, and water. The trial court orally announced that it did not find Roane credible, noting the unexplained discrepancies between the two agreements introduced by the parties and Roane’s assertion that Cedar Village never entered into five-year leases. The trial court concluded that the Wheats and Roane orally agreed to a five-year lease, but Roane induced them to sign a blank lease-purchase agreement and subsequently filled in the blank with a ten-year lease term. As a result, the trial court ordered PPI to transfer title of the mobile home to the Wheats.

1. PPI and BRI contend that the trial court erred by denying their motion for summary judgment, arguing that the Wheats were not entitled to vary the terms of the valid written contract and that parol evidence was inadmissible. “After verdict and judgment, [however,] it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” “Our Court has recognized a limited exception to this rule in cases in which the legal issues raised and resolved in denying the motion for summary judgment were not considered at trial.” Here, the issue of parol evidence was raised during the trial. Therefore, this enumeration presents no basis for reversal.

2. PPI and BRI argue that the trial court erred by entering judgment in favor of the Wheats because they are bound by the terms of the written lease-purchase agreement. We agree.

In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for damages from the fraud or breach; or (2) promptly rescind the contract and sue in tort for fraud. Where a party elects to rescind the contract, he must do so prior to filing the lawsuit.

Here, pretermitting whether the fraud alleged by the Wheats is the type of fraud that allows a party to rescind a contract, they did not tender rescission of the contract after receiving a copy of the written agreement in 2001, after discovering the ten-year lease term in the agreement, or at any time thereafter. Instead, the Wheats continued to live in the mobile home and, in their subsequent counterclaim to the dispossessory action, sought to proceed under the contract, asking the trial court to reform it to reflect that the parties agreed to a five-year lease. As a result, they are bound by the written terms of their agreement. When a purchaser elects to affirm a purchase contract that contains a merger clause, he or she “ ‘is precluded from recovering for the seller’s alleged fraudulent inducement based on misrepresentations made outside the contract.’ ” Accordingly, the trial court erred by reforming the contract to reflect the five-year lease term and by failing to enter judgment in favor of PPI and BRI.

Decided March 21, 2013.

Dangle, Parmer & Rooks, Robert F. Dangle, Thomas E. Parmer, for appellants.

We are aware of the harsh result in this case, given the evidence supporting the trial court’s conclusion that PPI’s representative induced the Wheats to enter into a contract containing a blank lease term and then filled in the blank in a manner inconsistent with the parties’ agreement. Nevertheless, for the foregoing reasons, the Wheats cannot prevail in this case, which stands as an example of the perils of signing an incomplete document.

This case is reversed and remanded to the trial court for entry of judgment consistent with this opinion.

Judgment reversed and case remanded.

Boggs, J., concurs. Andrews, P. J., concurs in judgment only.

Turkheimer & Hadden, John D. Hadden, T. Michael Flinn, for appellees.

       See Gigger v. White, 277 Ga. 68, 69 (586 SE2d 242) (2003).

       The agreement was signed by Nicole Baker, who is referred to in this opinion by her current name, Nicole Wheat.

       PPI and BRI both did business in the name of Cedar Village.

       The superior court subsequently entered an order substituting PPI and BRI as counterclaim defendants in the place of Cedar Village.

         The two lease-purchase agreements admitted into evidence were not identical; they varied with regard to a life insurance provision. The contract admitted during Nicole’s testimony contained a provision requiring the Wheats to obtain life insurance listing PPI as the beneficiary in the amount of $24,000; the amount was typed in to the contract. In the copy of the contract introduced during Roane’s testimony, the numerical value of the required insurance amount was “$xx,xxx,” and there was a handwritten notation that stated “$24,000.00 — chg. in computer pr 5-15-01.” Roane, who testified before Nicole testified and prior to the introduction of the Wheats’ copy of the agreement, denied that there was a copy of the agreement that had the $24,000 amount typed in. Both copies of the agreements, however, contained ten-year lease terms.

       During cross-examination, Roane denied that Cedar Village ever agreed to five-year lease terms, but the Wheats’ attorney introduced copies of two five-year lease-purchase agreements with other Cedar Village tenants, one of which was signed by Roane.

       The court also ordered, however, that because the Wheats had failed to pay all of the lot rent and utility bills owed, the clerk of court should pay to BRI $5,631 of the money paid into the court registry by the Wheats and return the remaining $644 to the Wheats. The court’s ruling on past due lot rent and utility bills is not at issue on appeal.

       (Punctuation omitted.) Kicklighter v. Woodward, 267 Ga. 157, 162 (4) (476 SE2d 248) (1996).

       (Punctuation omitted.) Wellons, Inc. v. Langboard, Inc., 315 Ga. App. 183 (1) (726 SE2d 673) (2012).

       (Citation and punctuation omitted.) Novare Group, Inc. v. Sarif, 290 Ga. 186, 188 (1) (718 SE2d 304) (2011), quoting Ekeledo v. Amporful, 281 Ga. 817, 819 (1) (642 SE2d 20) (2007).

        See Novare, 290 Ga. at 188-189 (2) (“Statements that directly contradict the terms of the agreement or offer future promises simply cannot form the basis of a fraud claim for the purpose of cancelling or rescinding a contract. In fact, the only type of fraud that can relieve a party of his obligation to read a written contract and be bound by its terms is a fraud that prevents the party from reading the contract.”) (citation omitted). See also Hall v. World Omni Leasing, 209 Ga. App. 115, 117 (2) (433 SE2d 297) (1993) (“ ‘If a writing is signed with blanks left to be filled in by the other party, the person signing is bound by it.’ ”) (punctuation omitted), citing Fore v. Parnell-Martin Cos., 192 Ga. App. 851, 853 (386 SE2d 723) (1989).

       See OCGA § 13-4-60 (“A contract may be rescinded at the instance of the party defrauded; but, in order to rescind, the defrauded party must promptly, upon discovery of the fraud, restore or offer to restore to the other party whatever he has received by virtue of the contract if it is of any value.”) (emphasis supplied).

       See Harkins v. Channell, 274 Ga. App. 478,480 (1) (618 SE2d 129) (2005) (“ ‘Asking [for] the reformation of an instrument is in no sense the repudiation of a contract; but is, on the contrary, an effort to affirm the real contract which the writing, when reformed, will evidence, and the party seeking such reformation would be entitled to retain any amount which he had rightfully received thereunder, both parties still resting under any unfulfilled obligations which the contract may impose.’ ”).

       Id. at 481 (2). See also Novare, 290 Ga. at 190 (3).


author: McFadden, Judge.

text:
    A12A2508.
    C & R FINANCIAL LENDERS, LLC et al. v. STATE BANK & TRUST COMPANY.
    (740 SE2d 371)
   McFadden, Judge.

State Bank & Trust Company filed a complaint against C & R Financial Lenders, LLC, Victor Smith and Brian Lee, claiming that they had defaulted on obligations under promissory notes and guaranties. On August 5, 2011, the trial court entered an order granting summary judgment in favor of State Bank and against all three defendants. On December 16, 2011, C & R Financial, Smith and Lee filed a motion under OCGA § 9-11-60 (g) to set aside the order on the ground that they had not received notice of it. The trial court denied the motion. C & R Financial, Smith and Lee appeal. Because the trial court erroneously failed to make any finding as to whether the attorneys for the appellants had received notice of the order and also erred in finding that affidavits filed in support of the motion contained inadmissible hearsay, we vacate the order and remand for further proceedings.

1. Affidavits.

The trial court erred in finding that two affidavits, filed by the appellants’ attorneys in support of the motion to set aside, contained inadmissible hearsay. The statements in question were based on the attorneys’ personal knowledge and indicated that they had not been served with a copy of the summary judgment order; that they had been unable to locate any notice from the court in their e-mails, mail notices or faxes; and that no member of their firm had been served with a copy of the order. These statements made by the declarants themselves are not hearsay. See OCGA § 24-8-801 (c).

Another statement by one of the attorneys explained that he first became aware of the summary judgment ruling when Smith called and told him that a garnishment action had been served upon his employer. Such statement was not offered for the truth of the matter asserted in Smith’s call — i.e., it was not offered to prove that a garnishment action had been served on Smith’s employer. Rather, it was offered solely to explain when counsel first became aware of the summary judgment order. Because the attorney’s affidavit statement was not offered as proof of the facts asserted in Smith’s out-of-court statement, it was admissible as original evidence and does not constitute inadmissible hearsay. See City of Brunswick v. Atlanta Journal & Constitution, 214 Ga. App. 150, 152 (2) (447 SE2d 41) (1994); OCGA § 24-8-801 (c).

2. Motion to set aside.

OCGA § 15-6-21 (c) provides that when a trial judge decides a motion, “it shall be the duty of the judge to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision.” One purpose of this statutory requirement is to ensure that the losing party has a fair opportunity to appeal from the decision; thus, as “our Supreme Court explained in Cambron[ v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426) (1980)], if a trial judge fails to give the required notice of a decision, a party aggrieved by the decision is entitled to have it set aside under OCGA § 9-11-60 (g).” (Citations omitted.) Tyliczka v. Chance, 313 Ga. App. 787, 788 (723 SE2d 27) (2012).

Cambrón established the following trial court procedures when ruling upon such a motion to set aside:

[U]pon a finding that notice was not provided as required by [OCGA § 15-6-21 (c)],the motion to set aside maybe granted, the judgment re-entered, and the thirty-day period within which the losing party must appeal will begin to run from the date of the re-entry. Of course, where notice was sent and received, and the trial judge so finds, he should refuse to set aside the earlier judgment.

(Emphasis supplied.) Cambron, supra at 148-149 (1). As Cambron plainly sets forth, in order for a trial judge to deny a motion to set aside, he must find that notice was both sent and received.

In this case, the trial judge found that notice had been sent. However, the judge made no finding as to whether the defendants or their attorneys had received notice. Indeed, it appears from the order denying the motion to set aside that the trial court mistakenly believed that receipt of notice by the defendants was irrelevant so long as the court found that notice had been sent. In that regard, the trial court found that “the evidence submitted by the Defendants is insufficient to establish that the Court did not provide notice to the Defendants ... because [their] Affidavit testimony focuses on receipt by the Defendants as opposed to notice from the Court.” (Emphasis in original.) Likewise, appellee State Bank, whose attorney also submitted the order denying the motion to set aside signed by the trial judge, claims in its brief that the determining factor is not the losing party’s receipt of notice, hut is simply whether the trial court sent notice.

However, as our Supreme Court has repeatedly made clear, whether the losing party received notice of the trial court’s decision is a critical factor in determining whether to set aside the decision. In Pierce v. State, 289 Ga. 893, 895 (2) (717 SE2d 202) (2011), the Supreme Court remanded a case to the trial court to make the necessary findings under Cambrón, specifically instructing the trial court that if it “finds that [the defendant] received no notice of the entry of the... order, then the motion to set aside must be granted and that order re-entered.” (Citations and punctuation omitted; emphasis supplied.) Similarly, in Veasley v. State, 272 Ga. 837, 839 (537 SE2d 42) (2000), the Supreme Court directed the trial court on remand that if the defendant “did not receive timely notice under OCGA § 15-6-21 (c), he can... move to set aside the orders denying his motion for new trial [and] the trial court should . . . set aside those orders].]” (Emphasis supplied.)

Likewise, this court has recognized the Cambrón requirements that notice must not only be sent, but must also be received. See Sea Tow/Sea Spill of Savannah v. Phillips, 247 Ga. App. 613, 614 (2) (545 SE2d 34) (2001) (upon finding that the losing party did not receive notice, the trial court should grant the motion to set aside, reenter the dismissal order, and give the losing party 30 days to file a notice of appeal), reversed in part on other grounds, Phillips v. Sea Tow/Sea Spill of Savannah, 276 Ga. 352 (578 SE2d 846) (2003); Fremichael v. Doe, 221 Ga. App. 698, 699 (472 SE2d 440) (1996) (where it was undisputed that losing party did not receive notice of order as required by OCGA § 15-6-21 (c), trial judge correctly set aside order and re-entered it pursuant to OCGA § 9-11-60 (g)); Tucker Station, Ltd. v. Chalet I, Inc., 203 Ga. App. 383, 384 (1) (417 SE2d 40) (1992) (affirming trial court’s grant of motion because even though notice was sent, it was not received).

Here, the order appealed from made no findings as to whether the appellants or their attorneys received notice of the summary judgment order.

Therefore, we are unable to determine whether the court’s denial of [the] motion to set aside was proper under Cambrón, especially since the [affidavits] in the record [aver] that [appellants’] attorney [s] received no notice of the order. Accordingly, the order of the trial court is vacated, and this case is remanded to the trial court with direction that the court make the necessary findings under Cambrón. If the court finds that [the appellants] received no notice of the entry of final judgment, then the motion to set aside must be granted and the judgment re-entered.

Decided March 21, 2013.

Cohen, Pollock, Merlin & Small, Brent W. Herrin, for appellants.

Quirk & Quirk, Joseph P. Quirk, Kevin E. Quirk, for appellee.

(Citations omitted.) Downs v. C. D. C. Fed. Credit Union, 224 Ga. App. 869, 870 (2) (481 SE2d 903) (1997).

Judgment vacated and case remanded with direction.

Andrews, P. J., and Boggs, J., concur.


author: ANDREWS, Presiding Judge.

text:
    A12A1790.
    AGUILAR et al. v. CHILDREN’S HEALTHCARE OF ATLANTA, INC. et al.
    (739 SE2d 392)
   ANDREWS, Presiding Judge.

Janaly Aguilar appeals after the trial court granted Children’s Healthcare of Atlanta, Inc.’s and Dr. Joseph Schultz’s motions to dismiss this medical malpractice suit. Aguilar alleged that her ten-month-old son Jonathon died as a result of the improper insertion of an intubation tube. The trial court granted the motions to dismiss, holding that the doctor who submitted the expert affidavit was not qualified because he was not regularly engaged in the active practice of emergency pediatric medicine, the subject specialty, for three to five years prior to the alleged negligence. We agree and affirm.

The pleadings show that Jonathon was having difficulty breathing and was suffering with abdominal pain, vomiting, and diarrhea when Aguilar brought him to the hospital’s emergency room. Jonathon was intubated to help with his breathing. According to the complaint, the intubation tube was not properly secured and “slid into the right mainstem bronchus.” Aguilar also alleged that the intubation tube remained there for 23 minutes before it was removed and secured properly. A short time later, life support was discontinued. The cause of death was acute myocarditis. The expert affidavit submitted with the complaint alleged that the hospital and the doctor failed to provide appropriate emergency treatment, including immediate intubation when the patient was critically ill and suffering from myocarditis; failed to properly secure the tube; and failed to realize that the tube had slid into the right mainstem bronchus until approximately 23 minutes after intubation.

Defendants filed a motion to dismiss, contending that Dr. Chou, the doctor who submitted the expert affidavit, was not qualified to do so. “The standard for determining an expert’s competence to testify is governed by OCGA § 24-9-67.1,[] and the statute applies to affiants under OCGA § 9-11-9.1.” Vaughan v. WellStar Health System, 304 Ga. App. 596, 598 (696 SE2d 506) (2010). OCGA § 24-9-67.1 (c) (2) (A) provided that in medical malpractice actions, the expert must have

actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in . . . [t]he active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue.

Id. “Whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.” (Punctuation omitted.) Mason v. Home Depot U.S.A., 283 Ga. 271, 279 (658 SE2d 603) (2008).

In this case, Dr. Chou’s curriculum vitae attached to his affidavit shows that he has been a licensed physician since 2003. The negligent act complained of in this case occurred on November 25, 2008. For four of the five years that Dr. Chou had practiced medicine, he was a resident in internal medicine and pediatrics. The trial court’s order stated that because the residency was not in the subject specialty area of emergency pediatric medicine or emergency medicine, but instead consisted of a series of rotations in a variety of medical fields, Dr. Chou could not show that he was regularly engaged in the subject specialty for three of the five years prior to the alleged negligence. Specifically, the record shows that Dr. Chou spent only 30 days a year in a rotation through the department of emergency medicine. After his residency, Dr. Chou went to work in an urgent care clinic. Dr. Chou acknowledged that he has done no intubations at all since he started working at the urgent care clinic and that the clinic does not possess intubation equipment.

Aguilar argues that Dr. Chou does not have to practice in the same specialty area as Dr. Schultz in order to be qualified to submit an expert affidavit. That is true; however, as this Court stated in Cotten v. Phillips, 280 Ga. App. 280 (633 SE2d 655) (2006):

It appears that the legislature has allowed for an overlap in specialties, whereby an otherwise qualified medical doctor belonging to “Specialty A” can render an opinion about the acts or omissions of another medical doctor belonging to “Specialty B” — so long as the opinion of the expert witness belonging to “Specialty A” pertains to Specialty A.... In the instant case,... “the area of practice in which the opinion is to be given” is vascular surgery — Dr. Filtzer’s specialty — not orthopedics — Dr. Cotten’s specialty. Accordingly, because Dr. Filtzer is a licensed vascular surgeon who is qualified to give an opinion on the vascular issues in this case, he clearly has the requisite “knowledge and experience in the area in which his opinion is given” necessary to satisfy the statute.

Id. at 283. Thus, in Cotten, this Court held that the trial court properly admitted testimony by a vascular surgeon concerning an orthopedist’s failure to assess vascular issues incident to knee replacement surgery. Id. That is not the case here and does not alter the fact that Dr. Chou does not have the requisite experience in the area in which his opinion is given, either pediatric emergency medicine or the even broader area of emergency medicine.

Emory-Adventist v. Hunter, 301 Ga. App. 215 (687 SE2d 267) (2009), relied on by Aguilar, does not demand a different result. In that case, although the expert was a resident in training, the court found that the doctor had regularly engaged in the repeated performance of acts relevant to the acts or omissions alleged to constitute malpractice. Id. at 219.

Further, Aguilar’s claims that Dr. Chou stated in his supplemental affidavit that he personally intubated numerous patients, including infants and that one-third of his patients at the urgent care clinic are children are not persuasive.

Only a doctor who has an appropriate level of knowledge, as determined by the judge, OCGA § 24-9-67.1 (c) (2) (A), and who has significant familiarity with the area of practice in which the expert opinion is to be given, is authorized to judge another doctor’s performance in that area of practice. To permit even a veteran general practitioner to judge the performance of a specialist, including decisions concerning either procedures or referrals, would eviscerate the statute’s purpose of assuring that a medical professional is not held negligent in the absence of evidence that he violated a standard of care established by his peers.

Decided March 5, 2013

Reconsideration denied March 22, 2013

Hwang & Litzky, Jimmy Hwang, for appellants.

Peters & Monyak, Robert P. Monyak, Huff, Powell & Bailey, Randolph P. Powell, Jr., for appellees.

(Citation and punctuation omitted.) Hope v. Kranc, 304 Ga. App. 367, 370 (1) (b) (696 SE2d 128) (2010).

Further,

it is not sufficient that the expert have just a minimum level of knowledge in the area in which the opinion is to be given. Instead, the expert must have regularly engaged in the active practice of the area of specialty in which the opinion is to be given and must have done so with sufficient frequency to establish an appropriate level of knowledge.

(Punctuation omitted.) Nathans v. Diamond, 282 Ga. 804, 806 (1) (654 SE2d 121) (2007). See also Dawson v. Leder, 294 Ga. App. 717, 719-720 (669 SE2d 720) (2008) (doctor who taught medical students and residents in the areas of surgery and critical care asserted “that she had ‘airway training’ and that ‘managing airway compromise and looking at ways to prevent [it] fell within her area of expertise’”; but, this did not establish “that she taught and/or practiced in the area of post-surgical airway management ‘with sufficient frequency to establish an appropriate level of knowledge’ ”).

Accordingly, we conclude that the trial court did not abuse its discretion in determining that Dr. Chou was not actively engaged in the subject specialty for three of the five years prior to the alleged negligence. See Nathans, supra; Hope, supra.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

       An inflammation of the heart muscle often caused by a viral infection.

       Under OCGA § 9-11-9.1 (a),
      [i]n any action for damages alleging professional malpractice against ... [a] professional licensed by the State of Georgia and listed in subsection (g) of this Code section,... the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.

       As of January 1, 2013, that Code section was changed to OCGA § 24-7-702.