author: MCFADDEN, Judge. RAY, Judge,

text:
    A14A0264.
    ODION v. AVESIS, INC. et al.
    (759 SE2d 538)
   MCFADDEN, Judge.

This is a dispute between a health care provider and a health insurance provider. Acting pro se on behalf of himself and three corporate entities, Dr. Gege Odion appeals from the trial court’s dismissal with prejudice of his lawsuit against Avesis, Inc., Avesis Third Party Administrators, Inc., and several individual defendants (collectively, “Avesis”). The trial court dismissed the lawsuit on the ground that the claims asserted therein were subject to a contractual arbitration provision.

We dismiss the appeal to the extent it raises claims of error on behalf of the corporate entities, because Odion is not a licensed attorney entitled to represent them before this court. Regarding the claims of error Odion brings on his own behalf, we reverse the dismissal of the lawsuit’s claims for injunctive relief, because those claims are not arbitrable under the plain language of the parties’ agreement. We vacate the dismissal as to the remaining claims in the lawsuit because, although the trial court was authorized to dismiss them under the arbitration clause, the trial court erred in doing so with prejudice. We remand this case for further proceedings not inconsistent with this opinion.

1. Facts and procedural posture.

An agreement between Odion and Avesis Third Party Administrators established Odion as a “Participating Provider,” which the agreement defined as an “optometrist, ophthalmologist or optician who has been approved by Avesis to provide covered [vision care] benefits to [certain patients].” The agreement described each party’s responsibilities regarding the provision of those benefits. Its general provisions included an arbitration clause that pertinently provided:

Except as may otherwise be provided for herein, any and all disputes arising out of or relating to this Agreement and the transactions contemplated herein, shall be solely and finally settled by binding arbitration. Such arbitration shall be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules (the “Rules”), by a single arbitrator selected in accordance with the Rules (the “Arbitrator”). . . . Except as set forth below, the parties hereby renounce all recourse to litigation as to matters subject to arbitration hereunder, and the parties agree that the award of the Arbitrator shall be final and subject to no judicial review, except as expressly provided by applicable law.... Notwithstanding the foregoing, each party shall have the right to seek injunctive or other equitable relief in any court of competent jurisdiction to enforce the provisions of the Agreement without first seeking or obtaining any decision of the Arbitrator with respect to the subject matter of this Agreement, even if a similar or related matter has already been referred to arbitration in accordance with the terms of this paragraph.

On January 2, 2013, Odion brought this action in superior court. He argued that Avesis breached the agreement by failing to notify his business, Optiworld Vision Center, LLC, of an impending audit; by improperly conducting that audit; by improperly suspending Odion’s status as a Participating Provider; by failing to disclose that suspension; and by terminating the agreement without providing “adequate alternative means of resolution.” He also asserted claims for misrepresentation, fraud and conspiracy, tortious interference with business relations, and violations of the United States Constitution. Odion based these claims on allegations that, in 2007, Avesis had wrongfully audited his business and had taken other actions that prevented him from obtaining the benefits of his agreement with Avesis. Odion sought general and punitive damages, costs of litigation, and injunctive relief.

Avesis answered and asserted several defenses, including that the terms of the agreement barred the action. Avesis also moved to dismiss on the ground that the agreement’s arbitration clause barred the action. It did not seek to compel arbitration in either pleading.

Odion asserted several arguments in response to the motion to dismiss, including (pertinent to this appeal) that Avesis had waived its right to enforce the arbitration clause by taking actions inconsistent with its rights under that clause; that the agreement fell within OCGA § 9-9-2 (c) (1), which excludes from the Georgia Arbitration Code (OCGA § 9-9-1 et seq.) certain agreements “relating to arbitration of medical malpractice claims”; that Avesis had not sought to compel arbitration under OCGA § 9-9-6 of the Georgia Arbitration Code; and that the agreement’s arbitration clause did not apply to an action seeking injunctive relief. Odion also submitted two exhibits to support his argument that Avesis had waived its right to enforce the arbitration clause: a September 14, 2007, letter from him to Avesis in which he “strongly suggest[ed] the intervention of an independent third party; that is, a mediator, arbitrator or judicial officer”; and Avesis’s responding October 15, 2007, letter in which it declined to grant what it characterized as a request for third-party mediation.

The trial court granted Avesis’s motion, finding that the agreement’s arbitration clause was “clear and unambiguous, making it a valid and enforceable arbitration clause.” The trial court also found that the complaint did not assert claims of medical malpractice and, therefore, was “not excepted from the binding arbitration clause” pursuant to OCGA § 9-9-2 (c) (1). The trial court dismissed Odion’s complaint with prejudice.

2. Claims of the corporate entities.

Odion brought this appeal on behalf of himself “individually, and d/b/a Optiworld Vision Center, LLC, Dr. Gege Odion, P. C., and Gege Odion Enterprise, LLC.” Because Odion is not a licensed attorney, however, he cannot represent the three corporate entities in a court of record. See Eckles v. Atlanta Technology Group, 267 Ga. 801, 805 (2) (485 SE2d 22) (1997); Sterling, Winchester & Long, LLC v. Loyd, 280 Ga. App. 416, 417 (1) (634 SE2d 188) (2006). Accordingly, to the extent the appeal advances claims on behalf of the corporate entities, it is dismissed.

3. Claims of Odion as an individual.

Odion challenges the trial court’s dismissal of his action with prejudice for raising claims that were subject to arbitration. Under the Georgia Arbitration Code, “a provision in a written contract to submit any controversy thereafter arising to arbitration is enforceable without regard to the justiciable character of the controversy.” OCGA § 9-9-3. Odion does not dispute the existence of a valid arbitration agreement. Instead, he argues that some of his claims were not arbitrable under the agreement, that Avesis waived its right to enforce the agreement, that a dismissal with prejudice was not the appropriate response to an action that raised claims subject to arbitration, and that the trial court should be disqualified for entering a “prejudicially motivated” ruling.

(a) Arbitrability of claims for injunctive relief.

In his complaint, Odion asked the trial court, among other things, to “[ijssue an order permanently enjoining defendants from continuing their discriminatory practices against [him] as a provider of eye care services to Georgia citizens” and to “[ijssue an injunction directing defendants to reinstate [his] provider status . . . under the terms of the contract originally agreed upon between the parties.” He correctly argues that these claims for injunctive relief were not subject to the arbitration clause in the parties’ agreement.

The paragraph addressing arbitration begins with the qualification that the arbitration procedure to which the parties agreed applies “[ejxcept as may otherwise be provided for herein. . . .’’After setting forth the arbitration procedure, that paragraph concludes:

Notwithstanding the foregoing, each party shall have the right to seek injunctive or other equitable relief in any court of competent jurisdiction to enforce the provisions of the Agreement without first seeking or obtaining any decision of the Arbitrator with respect to the subject matter of this Agreement, even if a similar or related matter has already been referred to arbitration in accordance with the terms of this paragraph.

(Emphasis supplied.) The paragraph’s plain language reflects the parties’ intent to except from the arbitration procedure actions involving injunctive or equitable relief and allow the parties to seek such relief in a court of law, whether or not they are arbitrating other disputes related to the agreement. Consequently, the trial court erred in dismissing the claims for injunctive relief on the ground that they were subject to arbitration under the agreement.

As the special concurrence explains, this procedure may lead to inconsistent rulings if a party simultaneously pursued equitable claims in court and other claims before an arbitrator. Nevertheless, it is the procedure to which the parties agreed. Questions arising out of such inconsistencies must be first addressed by the trial court.

Avesis urges that we affirm the trial court’s judgment because Odion failed to provide a transcript of the hearing on the motion to dismiss. But the lack of a transcript does not require us to affirm the dismissal of the claims for injunctive relief, because no transcript is necessary to decide the arbitrability of those claims. See Cameron v. Miles, 311 Ga. App. 753, 755 (1) (716 SE2d 831) (2011) (principle that in absence of transcript we must presume evidence supports trial court rulings “only applies if consideration of the transcript is essential to the resolution on appeal”) (citation omitted). Accordingly, we reverse the dismissal of the claims for injunctive relief.

(b) Arbitrability of remaining claims.

Odion’s remaining claims for breach of contract, tort, and constitutional violations were subject to arbitration under the terms of the parties’ agreement because they arose out of and related to that agreement. Accordingly, the trial court correctly determined that the arbitration clause applied to those claims. We do not agree with Odion’s argument that the trial court applied the wrong standard when it considered Avesis’s motion to dismiss and improperly converted that motion into one for summary judgment by considering evidence outside the pleadings. The arbitrability of disputes under the arbitration provision of a contract is a legal question, Helms v. Franklin Builders, 305 Ga. App. 863, 864 (700 SE2d 609) (2010), and the trial court was authorized to look at the entire record to make this determination. See Southern Telecom v. Level 3 Communications, 295 Ga. App. 268, 271 (1) (a) (671 SE2d 283) (2008). We also find no support for Odion’s claim that the trial court considered “illegal evidence” in rejecting the argument, made in Odion’s opposition to the motion to dismiss, that his claims may have fallen within the medical malpractice exception to the Georgia Arbitration Code. See OCGA § 9-9-2 (c) (1).

(c) Waiver of the right to enforce the arbitration provision.

Odion argues that Avesis waived its right to enforce the agreement’s arbitration clause. “A party may waive the arbitration provisions of a contract by taking legal action inconsistent with arbitration.” Weyant v. MacIntyre, 211 Ga. App. 281, 283 (3) (438 SE2d 640) (1993) (citation omitted); see also McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga. App. 10, 13 (345 SE2d 53) (1986). But “in those cases where a waiver was held to have occurred, the party seeking to rely upon an arbitration clause did not promptly invoke or seek to enforce the clause.” Weyant, 211 Ga. App. at 283 (3) (citation omitted).

Here, in contrast, Avesis invoked the arbitration clause both as a defense in its answer and as the ground for its motion to dismiss. See generally Nat. Parents’ Resource Institute for Drug Ed. v. Peachtree Hotel Co., 201 Ga. App. 637, 638 (2) (411 SE2d 884) (1991) (listing motion to dismiss among actions that defendant could take in response to lawsuit to avoid waiver of rights under arbitration clause). And Avesis did so immediately, before engaging in discovery into the merits of the case. Compare Phil Wooden Homes v. Ladwig, 262 Ga. App. 792, 793 (586 SE2d 697) (2003) (defendant waived rights under arbitration clause by waiting until end of discovery before invoking clause in motion to dismiss); Tillman Group v. Keith, 201 Ga. App. 680, 681 (2) (411 SE2d 794) (1991) (defendant waived rights under arbitration clause by litigating merits of arbitrable claim in court having jurisdiction to compel arbitration without seeking to initiate arbitration proceedings). The actions Avesis took in response to Odion’s lawsuit to enforce its rights under the arbitration clause reflect that Avesis “had no intention of waiving such . . . right [s].” H. R. H. Prince LTC Faisal M. Saud v. Batson-Cook Co., 161 Ga. App. 219, 221 (3) (b) (291 SE2d 249) (1982) (citation omitted).

Odion argues that Avesis’s response to his 2007 letter was an act inconsistent with arbitration. We disagree. Odion proposed in his letter “the intervention of an independent third party; that is, a mediator, arbitrator or judicial officer.” This proposal was not a demand for arbitration under the Georgia Arbitration Code, because it did not satisfy the statutory requirements for such a demand. See OCGA § 9-9-6 (c) (arbitration demand shall specify the agreement pursuant to which it is sought, the name and address of the party serving the demand, the nature of the dispute to be arbitrated, and the requirement for the party being served to apply for an order to stay arbitration or be precluded from asserting certain defenses). Consequently, Avesis’s letter in response, in which it characterized the proposal as a request for a third-party mediator that did not comply with Avesis’s policies and procedures, was not a rejection of an arbitration demand or an action inconsistent with arbitration. Compare McCormick-Morgan, Inc., 179 Ga. App. at 13 (act of negotiating and accepting payment in settlement of disputes constituted waiver of contractual right to arbitrate those disputes). Although Odion argues that, given Avesis’s response, any attempt to arbitrate the dispute would have been in vain, nothing prevented him from demanding an arbitration proceeding in compliance with OCGA § 9-9-6 (c) and the terms of the parties’ agreement, and then moving to compel arbitration pursuant to the procedures established in OCGA § 9-9-6 (a) (discussed below) if Avesis refused his demand.

Odion argues that Avesis’s attempt to enforce the arbitration clause despite its response to Odion’s 2007 letter violates the rule discussed in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), and Chambers v. Citizens & Southern Nat. Bank, 242 Ga. 498 (249 SE2d 214) (1978). Those decisions address the treatment of conflicts within the testimony of a party-witness and have no application to this case.

Finally, Odion argues that OCGA § 9-9-6 (a) of the Georgia Arbitration Code required Avesis to move to compel arbitration in response to Odion’s action. Again, we disagree. Under OCGA § 9-9-6 (a), “[a] party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration,” and “[i]f an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action.” (Emphasis supplied.) The plain language of this Code section makes a motion to compel arbitration optional, but directs that a party opting to file such a motion do so in a pending action, if such an action exists. Under the circumstances of this case, where Avesis invoked the arbitration clause in its answer and moved to dismiss on that ground without litigating the merits of Odion’s action, Avesis’s failure to move to compel arbitration was not an action inconsistent with arbitration that constituted a waiver of Avesis’s rights under the arbitration clause.

(d) Propriety of dismissal in response to the action.

Odion claims that the trial court erred in dismissing his lawsuit with prejudice rather than taking less “extreme” measures regarding the arbitrable claims. This Court, however, has acknowledged dismissal as a possible response to an action that raises a claim subject to arbitration. See Helms, 305 Ga. App. at 866 (dismissing case so that the parties could pursue arbitration); Nat. Parents’ Resource Institute for Drug Ed., 201 Ga. App. at 638 (2) (including motion to dismiss in list of actions a defendant could take in response to a lawsuit raising an arbitrable claim).

Nevertheless, the trial court should have dismissed the claims without prejudice. The trial court did not and, in fact, could not reach the merits of the claims that were subject to arbitration. See Helms, 305 Ga. App. at 865, n. 6 (noting that defendant’s summary judgment motion premised on arbitrability of claims in plaintiff’s action was more accurately characterized as a “motion to dismiss [the] claims without prejudice pending arbitration”) (citation omitted); Ralston v. City of Dahlonega, 236 Ga. App. 386, 387 (1) (512 SE2d 300) (1999) (trial court is not authorized to inquire into merits of action to determine arbitrability of claims raised therein). Accordingly, as to Odion’s remaining claims (those other than the claims for injunctive relief addressed in Division 3 (a), supra), we vacate the order dismissing the claims with prejudice and remand for proceedings not inconsistent herewith. See generally Ransom v. Holman, 305 Ga. App. 533, 534-535 (699 SE2d 849) (2010) (vacating dismissal order and remanding case where dismissal of action was proper but trial court erred in doing so with prejudice); Sampson v. Haywire Ventures, 278 Ga. App. 525, 527-528 (629 SE2d 515) (2006) (same).

(e) Disqualification of trial judge.

Odion argues that the trial judge’s dismissal order evinces a prejudice against him that should disqualify the judge and render the judgment void. But Odion did not raise this issue below and preserve it for appellate review. See State v. Hargis, 294 Ga. 818, 819 (1) (756 SE2d 529) (2014). Moreover, Odion has offered no argument that any alleged prejudice on the part of the trial judge stemmed from an extra-judicial source, as required for disqualification. See Heidt v. State, 292 Ga. 343, 347-348 (3) (736 SE2d 384) (2013).

Judgment reversed in part and vacated in part, appeal dismissed in part, and case remanded with direction.

Andrews, P. J., concurs. Ray, J., concurs in Divisions 1, 2, 3 (b), (c), (d), (e) and in the judgment only as to Division 3 (a).

RAY, Judge,

concurring specially.

I write to explain my decision to concur in judgment only to Division 3 (a) of the majority’s opinion, which holds that Odion’s claims for injunctive relief were properly before the trial court and should not have been dismissed.

Clearly, as set forth within Paragraph 4 of the Agreement, it was the intent of the parties that “any and all disputes relating to this Agreement . . . shall be solely and finally settled by arbitration,” which is why both the trial court and this Court agree that Odion’s claims for breach on contract, misrepresentation, fraud and conspiracy, and tortious interference with business relations were properly dismissed. At the same time, however, the result of this appeal is that we are returning this case to the trial court to decide whether Odion may obtain injunctive relief. The majority’s decision is based upon language in the Agreement that permits the parties “to seek injunctive or other equitable relief in any court of competent jurisdiction to enforce the provisions of this Agreement,” whether or not they have first obtained a decision in arbitration or whether the case was currently pending before an arbitrator.

Decided June 3, 2014.

Gege Odion, pro se.

Holly M. Gentry, for appellees.

If this seems confusing to you, then I agree. A valid question exists as to why are we dismissing Odion’s substantive claims, but at the same time stating that he can pursue injunctive relief from the trial court on those very same claims? To me, the only logical reading of the Agreement and these seemingly conflicting provisions is that the parties may seek injunctive or equitable remedies that are available only from the trial court, but that the substance of the dispute must be decided by the arbitrator. For example, I believe that the arbitrator, if one is ever appointed, should decide all matters of dispute between the parties, such as whether there has been a breach of contract or whether a tort has been committed by one or both of the parties; if that is found to be so, then the trial court should decide whether such situation would warrant the exercise of its equitable powers to issue an injunction. If, on the other hand, neither party requests arbitration on the underlying causes of action, or the arbitrator finds that no breach of contract or tort has been committed, then I believe that the trial court would properly be within its rights to deny the claim for an injunction.

       If we held otherwise, it would leave open the possibility of an arbitrator and the trial court reaching different conclusions and rendering inconsistent results.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A14A0535.
    WRIGHT v. THE STATE.
    (757 SE2d 890)
   ANDREWS, Presiding Judge.

Janine Wright appeals after a jury found her guilty of Medicaid fraud. She claims that the trial court erred by instructing the jury that it could convict her of the crime in a manner not charged in the indictment. After reviewing the record, we conclude that there was no error and affirm.

The evidence at trial was that Wright, a speech pathologist, had billed Medicaid for services to a patient that she had never seen or treated. This triggered an investigation of Wright and her billing practices. A Medicaid fraud investigator testified that when he asked Wright about discrepancies in her billing records, she said that she was trying to be “creative” in her billing because she had to make up for lost revenue. Accordingly, she billed for missed appointments and anticipated missed appointments. Wright also told the investigator that she “prebilled” before the appointment date, but if the patient missed the appointment, she would reverse the claim. Only one reversal, however, showed up in Wright’s records.

The State introduced evidence of 15 recipients for whom Wright billed Medicaid $60,119.57. The State called some of these recipients and introduced evidence that they: saw Wright four times and she billed for forty-one visits; saw Wright three times and Wright billed Medicaid for sixty visits; saw Wright twice and she billed for twenty-six visits; saw Wright once and she billed for seventy-eight visits; and saw Wright three or four times and she billed for 100 visits.

Wright testified at trial and admitted to billing Medicaid for services that were not performed. She stated that she did it after a program had been initiated for therapy and to secure the recipients’ “access to the program.” She stated that she intended to provide those services and it was not her intent to violate Medicaid policies and procedures when she submitted the bills.

Wright now appeals her conviction, arguing that the indictment charged her with Medicaid fraud in violation of OCGA § 49-4-146.1 (b) (1), in that she obtained and attempted to obtain medical assistance payments to which she was not entitled by engaging in a “fraudulent scheme and device.” In its charge to the jury, however, the court defined Medicaid fraud as follows:

It shall be unlawful for any person or provider to obtain or attempt to obtain for herself or any other person any medical assistance payments under the Georgia Medicaid program, or under a managed care program operated, funded, or reimbursed by the Georgia Medicaid program, to which the person or provider is not entitled, or in an amount greater than that to which the person or provider is entitled, when the medical assistance payment is obtained or attempted to be obtained by knowingly and willfully making a false statement or false representation, deliberate concealment of any material fact, or any fraudulent scheme or device.

Wright contends that the jury should only have been charged on “fraudulent scheme or device” because that was the charge in the indictment and it required the jury to conclude that she had a criminal intent when she billed for services that were not provided. Wright argues that because she admitted to billing for services that were not performed, the jury could have convicted her of knowingly making a false statement or misrepresentation without finding that she had the requisite intent of obtaining payments through a fraudulent scheme or device.

As a general rule, it is not error to charge an entire Code section even though part of the section may be inapplicable. But, when the indictment specifies the commission of a crime by only one of several methods possible under the statute, it may be reversible error to charge the entire Code section if a reasonable possibility exists that the jury may convict the defendant of committing the crime in a manner not alleged in the indictment. Jury instructions must be read and considered as a whole however; and, when an entire statutory definition is given, we will not find error if the instructions sufficiently limit the jury’s consideration to the elements of the offense as charged in the indictment.

Stephens v. State, 255 Ga. App. 680, 684 (569 SE2d 250) (2002) (citations omitted).

Here, the court read the indictment to the jury; instructed them that the State had the burden to prove every material allegation alleged in the indictment beyond a reasonable doubt; that they could only convict if they found the defendant guilty of the crimes “as charged”; and a copy of the indictment was sent out with the jury. Because the trial court properly limited the elements of the crime to that charged in the indictment, there was no error. Stephens, supra; Tiller v. State, 314 Ga. App. 472 (724 SE2d 397) (2012); Smith v. State, 313 Ga. App. 170, 175-176 (721 SE2d 165) (2011).

Nevertheless, Wright urges us to consider what she claims is a conflict in our case law, citing the holdings in Smith, supra, 313 Ga. App. 170 (Smith I) and Smith v. State, 310 Ga. App. 418(714 SE2d 51) (2011) (Smith II). In Smith I, the appellant contended

that the trial court’s jury instruction erroneously authorized the jury to find him guilty of committing battery by intentionally causing substantial physical harm while the indictment specifically alleged that he committed battery by the alternate method of causing visible bodily harm.

313 Ga. App. at 175. This Court noted that the trial court “read the indictment to the jurors and instructed that the state had the burden of proving every material allegation of each count and every essential element of the crimes charged beyond a reasonable doubt.” Id. at 176. Because this constituted a limiting instruction which informed the jury that the State had the burden to prove that the appellant committed battery by intentionally causing visible bodily harm, as alleged in the indictment, it cured any alleged due process violation with the battery charge. Id.

Smith IIis not in conflict with Smith I but rather is distinguishable on its facts. In Smith II, the trial court generally charged the jury that “a person commits the offense of child molestation when that person does an immoral and indecent act to a child less than 16 years of age with the intent to arouse and satisfy the sexual desires of the person and the child.” 310 Ga. App. at 420-421 (1) (punctuation omitted). The indictment, however, specifically alleged that the appellant committed child molestation by placing his penis in the victim’s vagina. Id. at 420 (1). Although the trial court read the indictment to the jury and charged the jury on the State’s burden of proving the material allegations in the indictment, the trial court was confronted with evidence of jury confusion when the jury sent a note to the trial court during deliberations asking whether a sexual conversation could constitute an indecent act. Id. at 421 (1). The trial court responded: “You’ll have to refer to the charge as a whole and the indictment and the evidence.” Id. (punctuation and footnote omitted). The Court concluded that when the jury expressed its confusion, “the trial court should have instructed the jury to limit its consideration to determining whether Smith was guilty of committing child molestation in the specific manner alleged in the indictment only.” Id. at 422 (1).

In this case, unlike in Smith II, the jury did not express confusion regarding the crime charged in the indictment. This case resembles Smith I and, consistent with our opinion in that case, we conclude that Wright has not established that the jury instruction on the definition of Medicaid fraud violated her due process rights.

Judgment affirmed.

McFadden and Ray, JJ., concur.

Decided May 16, 2014

Reconsideration denied June 4, 2014

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Samuel S. Olens, Attorney General, Henry A. Hibbert, Assistant Attorney General, for appellee.


author: DOYLE, Presiding Judge.

text:
    A14A0544.
    RUTLEDGE v. GEMINI CAPITAL GROUP, LLC.
    (757 SE2d 893)
   DOYLE, Presiding Judge.

Daniel J. Rutledge appeals from the grant of summary judgment to Gemini Capital Group, LLC, in its suit against him on an account. Rutledge contends that summary judgment was improper because Gemini failed to establish the amount owed and that it was the real party in interest, and because Rutledge’s affidavit raised a genuine issue of material fact by denying that he applied for a credit card with Gemini’s predecessor. For the reasons that follow, we affirm.

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

Gemini’s complaint alleges that, based on a revolving credit account, Rutledge is indebted to it in the principal sum of $8,002.15, plus interest and that Rutledge is in default. Following discovery, Gemini moved for summary judgment and supported its motion with an affidavit of its chief executive officer, Roger Neustadt. The affidavit contains averments based on Neustadt’s personal knowledge of Gemini’s records kept in the regular course of business, which records were attached to the affidavit. Neustadt further averred as follows:

On or about January 19, 1996, [Rutledge] applied for a Visa credit card. The Defendant entered into a credit card agreement with Chase Bank USA, N.A., who was succeeded in interest by [Gemini], who presently owns the account (see Exhibit “A”).
A Visa credit card was subsequently issued to [Rutledge], account number of said credit card being [16-digit account number]. Subsequently, charges and payments were made to the account.
[Rutledge] failed to make all of the payments required under the terms of the Credit Card Agreement. As of the date this affidavit is made, [Rutledge] owes [Gemini] the principal balance amount of $8,002.15, as shown by Exhibit “B”. This figure is determined by the balance due on the last statement plus credits and debits to the account since the statement was issued (see Exhibit “C”). . . .
Despite [Gemini’s] request for payment, [Rutledge] has failed and refused to pay. Demand has been made upon [Rutledge] for the balance due on the account. . . .

Attached to the affidavit were two documents, each entitled “Bill of Sale” and labeled “Exhibit A.” One showed a transfer of multiple accounts from Chase Bank USA, N.A., to Turtle Creek Assets, Ltd., and the other showed a transfer of accounts from Turtle Creek Assets, Ltd., to Gemini. Both bills of sale purported to transfer rights to the accounts listed in an attachment, and a single-line-item attachment accompanied the bills of sale and listed Rutledge’s personal information, account balance, and the last four digits of his account number. All of these documents were labeled “Exhibit A” to correspond with the transfer of accounts described in Neustadt’s affidavit.

Also attached to the affidavit were a series of account statements labeled “Exhibit B,” listing Chase as the issuer and Rutledge as the account holder, with a final principal balance due of $8,002.15. Finally, a computer printout (“Exhibit C”) reflected a “file data summary” for Rutledge and listed Gemini at the top and showed his principal balance of $8,002.15.

Rutledge contends that summary judgment was granted in error because Gemini failed to prove the chain of title showing that it was the real party in interest.

To show it was entitled to judgment against [Rutledge] on the credit card account, [Gemini] was required to show that [Rutledge] entered into an agreement or established an account with [its predecessor], accumulated a balance and failed to pay. The Bank was required to attach to the affidavit copies of the records relied upon and referred to therein that were pertinent to [RutledgeJ’s debt. It did.

Decided May 19, 2014

Reconsideration denied June 4, 2014

Daniel J. Rutledge, pro se.

Gemini provided an affidavit from its CEO, based on personal knowledge and properly authenticated business records attached to the affidavit, showing that Rutledge established a credit card account issued by Chase. The affidavit and supporting documents further show that Chase’s interest in the account was ultimately transferred to Gemini and that Rutledge failed to pay the amounts listed on the statements issued to him and attached to the affidavit. This was sufficient to make a prima facie case supporting Gemini’s suit on the account.

Nevertheless, Rutledge argues that his affidavit, in which he avers that he applied for a credit card from a different bank and not Chase, creates a genuine issue of material fact precluding summary judgment. But Rutledge’s affidavit does not dispute his indebtedness under the Chase card account, which debt was proven by the evidence supporting Gemini’s motion for summary judgment. It is this debt that was transferred to Gemini, and Gemini has made a prima facie case supporting its suit to collect that debt. Therefore, regardless of any evidence that Rutledge applied for a different card, Rutledge’s affidavit fails to create a genuine issue of fact material to the Chase debt. Accordingly, we discern no error in the grant of summary judgment to Gemini.

Judgment affirmed.

Miller and Dillard, JJ., concur.

McCullough, Payne &Haan, David A. Kleber, Jerry C. Tootle, Jr., for appellee.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Footnotes and emphasis omitted.) Melman v. FIA Card Svcs., 312 Ga. App. 270, 272-273 (2) (718 SE2d 107) (2011).

       See id.; League v. Citibank, 291 Ga. App. 866, 869 (2) (663 SE2d 266) (2008) (summary judgment for creditor affirmed where creditor produced evidence that the debtor requested and obtained the account, accumulated a balance, and did not pay); Davis v. Discover Bank, 277 Ga. App. 864, 866 (627 SE2d 819) (2006) (summary judgment for creditor affirmed because creditor produced evidence that a credit card was issued to the debtor along with a document providing that if he used the card he accepted the agreement, statements in the debtor’s name that were mailed to the debtor and not returned, and an account statement showing the balance due); Bozeman v. CACV of Colorado, 282 Ga. App. 256, 257-258 (638 SE2d 387) (2006) (creditor was entitled to summary judgment on credit agreement because record custodian’s affidavit stated that defendant had established an account with creditor’s predecessor but refused to pay, stated amount owed, and attached authenticated statement reflecting amount of debt on the account, but defendant failed to provide affidavit or other evidence to rebut the evidence).


author: ELLINGTON, Presiding Judge.

text:
    A14A0105.
    SCOTT v. BUTLER et al.
    (759 SE2d 545)
   ELLINGTON, Presiding Judge.

Latresha Scott appeals from an order of the Superior Court of Fulton County that affirmed a decision by the Department of Labor’s Board of Review (“Board”) denying her application for unemployment benefits. Scott contends, inter alia, that the Board’s Administrative Hearing Officer (“hearing officer”) erroneously concluded that she did not resign from her job for good cause in connection with her work. She argues that she was effectively forced to resign because, after finding out where she worked, her abusive ex-boyfriend confronted and threatened her at her workplace, and, if she had continued to work there, she, her co-workers, and other innocent third parties faced the extreme danger that he would violently attack them.

This case presents an issue of first impression for Georgia’s courts, as follows: Whether an employee is disqualified from receiving unemployment benefits under OCGA § 34-8-194 (l) as a matter of law when she quits her job due to the reasonable probability that, if she continued the employment, she (and possibly others) would become the victim of violence committed by a third party who had no employment or business relationship with her employer. For the following reasons, we find that the trial court erred in affirming the denial of unemployment benefits to Scott. Therefore, we reverse the trial court’s order and remand this case for further proceedings that are consistent with this opinion.

On appellate review of unemployment appeals, this [C]ourt does not sit as a fact-finding body, but rather one for the correction of errors of law. Whether or not an employee voluntarily leaves employment is usually a question of fact, but whether there existed good cause for his voluntary termination more often requires a legal conclusion.

(Citations and punctuation omitted; emphasis supplied.) Blair v. Poythress, 211 Ga. App. 674, 676 (440 SE2d 261) (1994). See Holstein v. North Chemical Co., 194 Ga. App. 546, 548 (3) (390 SE2d 910) (1990) (accord). “When this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.” (Citation and punctuation omitted.) Davane v. Thurmond, 300 Ga. App. 474, 475 (685 SE2d 446) (2009).

According to the transcript of the hearing conducted by the hearing officer, Scott presented the following uncontradicted evidence. Before Scott started the job at issue in this case, her ex-boyfriend repeatedly and severely physically and mentally abused her throughout their four-year relationship, sometimes in the presence of their two children. At least once, he injured her to the extent that she had to go to a hospital emergency room for treatment. Before and after she ended the relationship in July 2011, she called the police for assistance numerous times, resulting in the man’s repeated arrests and convictions for criminal trespass, assault, battery, and cruelty to children. Although she had already obtained two restraining orders against her ex-boyfriend, and even though the terms of his probation prohibited him from having contact with her, he repeatedly violated those orders by stalking, harassing, and threatening her.

At some point in 2012, the ex-boyfriend discovered that Scott was employed at the workplace at issue in this case. In July or August of that year, he appeared at her workplace, followed her home, and, unannounced and uninvited, confronted her on her doorstep. This incident caused her to move into a domestic violence women’s shelter at an undisclosed location. Fearing that her ex-boyfriend would not only injure or kill her at her workplace, but that he would also harm her co-workers and store customers, as well as follow her to the shelter and harm the residents there, Scott took a two-week leave of absence from work. When the threat of a violent attack by her ex-boyfriend still existed at the end of her leave, she discussed the situation with the store manager, who told her to resign. She complied, but, when she applied for unemployment benefits, the employer opposed it, asserting that she had voluntarily quit her job “because of personal circumstances” that were unrelated to her employment and, thus, was disqualified from receiving benefits.

In addition, Scott testified that, a few days after she moved into the battered women’s shelter, her stepfather murdered her mother in a murder/suicide incident. Scott’s ex-boyfriend appeared at her mother’s funeral, grabbed her by her arms, and tried to force her to talk to him before other family members intervened and forced him to leave. According to Scott, after the loss of her mother, she felt that she had to quit her job and move far away from the area, stating that she “didn’t want what happened with [her] mom” to happen to her.

Scott also presented an expert witness, who testified that the ex-boyfriend’s behavior was typical of domestic violence situations in which the abuse “increases tremendously” after the woman ends the relationship. According to the expert, Scott was in “a lot of danger” at the time she quit her job, and the ex-boyfriend’s actions constituted an actual threat of physical harm or death to Scott, her co-workers, and the shelter’s residents. She explained that, when a typical abuser goes to the workplace of his former wife or girlfriend in violation of a restraining order, as in this case, “he has no regards for the law. He isn’t afraid. He’s attempting to assault the individual at [her] workplace [,] and that means by any means [.] [H]e’ll try [to] get to the employees that may try to stop him. So she may not be the only one harmed.” She testified that she had worked with several other victims of domestic violence who “were told to remain at their jobs and the abuser showed up at their jobs. And ... not only [was] the victim [harmed], but also [other] employees as well.” In addition, in the expert’s opinion, if Scott had not quit her job, there was a “tremendous risk” that her ex-boyfriend would have illegally followed her and discovered the confidential location of the domestic violence women’s shelter. Finally, the expert opined that “domestic violence in the workplace ... is just as serious as any other health and risk factors that we have on the job.”

The employer’s store manager did not appear for the administrative hearing, and the employer presented no evidence other than Scott’s letter of resignation. Although the employer sent a representative to the hearing, she had no personal knowledge of the circumstances surrounding Scott’s resignation and stated that she was “surprised” when she heard Scott’s testimony, because the store manager had told her only that Scott had quit due to a “family issue.”

Following the hearing, the hearing officer denied Scott’s application for unemployment benefits, ruling that, while Scott “may have considered the work environment to have been difficult,” she had “the burden to do whatever a reasonable person would do to retain her employment.” The hearing officer concluded that Scott’s resignation was based upon “personal reasons” and not a good, work-connected cause. The Board affirmed the ruling, and, after Scott appealed to the Superior Court of Fulton County, the court affirmed the Board’s order.

1. Scott contends that the hearing officer erred in ruling that she did not resign her job for a good cause that was connected to her work and, therefore, she was disqualified from receiving unemployment benefits under OCGA § 34-8-194 (1). OCGA § 34-8-194 (1) provides, in relevant part, as follows:

An individual shall be disqualified for benefits ... [f]or the week or fraction thereof in which the individual has filed an otherwise valid claim for benefits after such individual has left the most recent employer voluntarily without good cause in connection with the individual’s most recent work. Good cause shall be determined by the Commissioner according to the circumstances in the case[.] . . . [T]he burden of proof of good work connected cause for voluntarily leaving such work shall be on the individual. . . .

Scott argues that her resignation was for a good cause that was connected to her work because she, her co-workers, and the store’s customers faced extreme danger at the workplace if she continued to work there. She also contends that, due to the on-going threat of domestic violence occurring at her workplace, she faced an unhealthy and oppressive situation there.

Georgia’s General Assembly has formally declared that “economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state [,]” and, therefore, Georgia’s public policy favors payment of unemployment benefits to “persons unemployed through no fault of their own.” OCGA § 34-8-2. See Williams v. Butler, 322 Ga. App. 220, 223 (1) (744 SE2d 396) (2013). Further, in light of the expressed purpose of the Employment Security Act, courts should liberally construe the provisions of the Act in favor of the employee, and statutory exceptions and exemptions that are contrary to the expressed intention of the Act should be narrowly construed. Dalton Brick & Tile Co. v. Huiet, 102 Ga. App. 221, 224 (2) (115 SE2d 748) (1960).

Although Georgia’s appellate courts have not addressed whether the threat of domestic or third-party violence occurring at a workplace may constitute a good, work-connected cause for an employee’s resignation under OCGA § 34-8-194 (l), this Court has concluded that verbal or physical abuse inflicted by an employer or other supervisory personnel constitutes good cause for quitting one’s employment, recognizing that

numerous [appellate] courts have held that [such] intentional harassment of an employee is an abnormal working condition and constitutes good cause for leaving work voluntarily. ... [A] worker is not required to sacrifice all other than economic objectives and, for instance, endure racial, ethnic, or sexual slurs or personal abuse, for fear that abandoning an oppressive situation will disqualify the worker from unemployment benefits.

(Citations and punctuation omitted.) Blair v. Poythress, 211 Ga. App. at 676-677. In Blair, this Court ruled that

[v] erhal and physical abuse inflicted by an employer or other supervisory personnel is such an intolerable condition [that it] would make a reasonable and prudent person of normal sensitivity leave such an environment. Therefore, we conclude that, as a matter of law, if an employee’s voluntary cessation of employment is due to the verbally or physically abusive conduct of an employer or supervisory personnel which is of such a gravity that would justify a reasonable person to voluntarily leave the ranks of the employed and join the ranks of the unemployed, this voluntary departure constitutes the requisite good cause to prevent disqualification. In these limited circumstances, an employee cannot then reasonably be judged as free to stay at the job. To conclude otherwise would be inconsistent with Georgia’s strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own.

(Citations and punctuation omitted; emphasis in original.) Id. at 677.

Moreover, this Court has ruled that unhealthy conditions at the workplace can constitute good cause for resigning from one’s employment under OCGA § 34-8-194 (1), concluding that, if the employee

voluntarily quit his job because the work environment caused or aggravated a pre-existing medical condition [(asthma)] to the extent that he either was unable to perform properly his employment duties, or was unable to perform properly his employment duties without unreasonable risk of harm to his health due to continued employment, and that the employee timely notified his employer of the reason for his decision, such voluntary quitting would be with due cause as a matter of law.

(Citations omitted; emphasis in original.) Holstein v. North Chemical Co., 194 Ga. App. at 548 (3).

This Court has even concluded that an employee who resigns her job in order to accept a better job elsewhere is not automatically disqualified from receiving unemployment benefits under OCGA § 34-8-194 (1) if the new job fails to materialize or ends through no fault of the employee. See, e.g., Harrison v. Thurmond, 252 Ga. App. 402 (556 SE2d 490) (2001) (ruling that an employee could not be denied unemployment benefits simply because he or she left a job to seek a better position with another company).

And, in fact, this Court has ruled that employees who had not voluntarily resigned but, instead, had been discharged by their employers were still entitled to unemployment benefits under the Act when they were discharged based upon their failure or inability to perform their jobs, when such failure or inability was not due to deliberate or avoidable conduct on their parts. See, e.g., Johnson v. Butler, 323 Ga. App. 743, 745-746 (748 SE2d 111) (2013) (A teacher who was discharged for failing to pass a required certification examination after eight attempts was entitled to unemployment benefits because the evidence showed that she had made a bona fide effort to pass the test and because there was no evidence that her failure was due to her carelessness or deliberate malfeasance.); Davane v. Thurmond, 300 Ga. App. at 475-477 (An employee who was discharged after she was unable to quickly arrange child care for an unanticipated out-of-state work assignment was entitled to unemployment benefits because her lack of child care was not the result of deliberate fault on her part.); Glover v. Scott, 210 Ga. App. 25, 25-26 (435 SE2d 250) (1993) (An employee who was discharged after she missed two hours of work in order to attend a judicial proceeding involving her son was entitled to unemployment benefits because such absence was due to circumstances beyond her control, even though the employer had previously warned her that, due to her record of repeatedly being tardy or absent from work, she would be discharged if she was tardy or absent again.).

Accordingly, after considering this Court’s analogous precedent, and after liberally construing OCGA § 34-8-194 (1) in favor of Scott and in compliance with Georgia’s public policy favoring payment of unemployment benefits to persons who are unemployed through no fault of their own, we conclude that Scott has met her burden of demonstrating that she is entitled to unemployment benefits. Even though the employer did not create or contribute to the dangers at issue, to deny Scott benefits under the circumstances presented would, in effect, require her to work in a dangerous environment wherein she and numerous others would be unnecessarily exposed to the actual threat of violence due to circumstances that are entirely beyond their control. This would be an outcome that is unjust, inequitable, and inconsistent with the expressed purpose of the Act. Consequently, we reverse the superior court’s order affirming the denial of unemployment benefits to Scott, and we remand this case for further proceedings as necessary to comply with this opinion.

2. Given our decision in Division 1, supra, Scott’s remaining enumerated error is moot. See Kautz v. Powell, 326 Ga. App. 816, 817 (1), n. 4 (755 SE2d 330) (2014) (Because this Court’s ruling in a separate division of the opinion was dispositive of the issue presented on appeal, the appellant’s allegation that a related ruling by the trial court was also erroneous was rendered moot.).

Decided June 4, 2014.

Lindsey M. Siegel, Kimberly D. Charles, for appellant.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Senior Assistant Attorney General, for appellees.

Judgment reversed and case remanded with direction.

Phipps, C. J., concurs. McMillian, J., concurs in judgment only.

       This Court granted Scott’s application for discretionary review, Case No. A13D0446. See OCGA § 5-6-35 (a) (1).

       See Division 1, infra.

       Despite this fact, Scott does not challenge on appeal the hearing officer’s conclusion that she resigned from her job, as opposed to having been effectively discharged.

       Notably, according to an article published by the Women’s Legal Defense and Education Fund, at least 33 other states and the District of Columbia currently extend unemployment benefits to victims of domestic violence. See Legal Momentum, The Women’s Legal Defense and Education Fund, ARRA: Extending the Unemployment Insurance Safety Net to Victims of Domestic Violence, October 2009, www.ncdsv.org/images/LegalMom_ARRA%20and%20UI. DV_10-09.pdf.

       See OCGA § 34-8-194 (2) (disqualification for unemployment benefits following an employee’s discharge or suspension from employment); see also Johnson v. Butler, 323 Ga. App. 743, 744-745 (748 SE2d 111) (2013) (“Under Georgia law, no unemployment-compensation benefits are due to an individual who is fired for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed[.] . . . However, an individual shall not be disqualified for benefits if... the individual made a good faith effort to perform the duties for which hired but was simply unable to do so or the individual did not intentionally fail or consciously neglect to perform his or her job duties.”) (punctuation and footnotes omitted).

       See also Barnett v. Ga. Dept. of Labor, 323 Ga. App. 882, 885-887 (748 SE2d 688) (2013) (physical precedent only) (An employee who was discharged for failing to obey the employer’s rules and standards of employee conduct when he was insubordinate and disrespectful to his employer was entitled to unemployment benefits because the employer never communicated the unwritten rules or standards to the employee or warned him that such conduct could result in his discharge.); Skinner v. Thurmond, 294 Ga. App. 466, 468-469 (669 SE2d 457) (2008) (physical precedent only) (An employee who was discharged for failure to perform his job was entitled to unemployment benefits when the uncontradicted evidence showed that he could not perform his job because he had to rely on subcontractors to perform the work and he was unable to find qualified subcontractors.).


author: McMillian, Judge.

text:
    A14A0221.
    CARDER v. THE STATE.
    (759 SE2d 550)
   McMillian, Judge.

Tammy Faye Carder was convicted by a jury of one count of homicide by vehicle and two counts of serious injury by vehicle. She appeals following the denial of her motion for new trial, arguing that her prosecution for these offenses was time-barred, that the trial court erred by admitting evidence of similar transactions and by failing to charge on accident and proximate cause, and that the trial was a nullity because a nolle prosequi had been entered prior to the commencement of the trial. Having considered these claims of error, we now affirm.

On August 4, 2008, more than three years after the accident in this case, Carder was charged with: (1) homicide by vehicle “through a violation of OCGA [§] 40-6-391 (a) (1), Driving Under the Influence of Alcohol”; (2) homicide by vehicle “through a violation of (OCGA § 40-6-390), Reckless Driving”; (3) vehicular homicide in the second degree based on the underlying offense of failure to maintain lane; (4) serious injury by vehicle “through a violation of OCGA [§] 40- [6] -391, Driving Under the Influence of Alcohol”; (5) serious injury by vehicle “through a violation of OCGA [§] 40-6-390, Reckless Driving”; (6) Driving Under the Influence (less safe); and (7) failure to maintain lane. Carder filed a motion to suppress certain evidence, and in State v. Carder, 301 Ga. App. 901 (689 SE2d 347) (2009), we affirmed the trial court’s ruling suppressing Carder’s statements to an arresting officer, affirmed the trial court’s ruling refusing to suppress statements Carder made to hospital personnel, and reversed the trial court’s suppression of evidence that Carder refused to take a State-administered blood test. Id. at 902. The remittitur was issued to the trial court on July 23, 2010, and the case was then placed on several trial calendars before Carder filed a plea in bar asserting a violation of her constitutional right to a speedy trial. The trial court denied Carder’s plea in bar, and this Court affirmed that ruling in Carder v. State, 312 Ga. App. 61 (717 SE2d 661) (2011).

Upon return to the trial court, and just before the trial commenced, the State nolle prossed the misdemeanor charges — homicide by vehicle in the second degree, driving under the influence (less safe), and failure to maintain lane — because the applicable two-year statute of limitation had run prior to the time those offenses were indicted. See OCGA § 17-3-1 (e). The case proceeded to trial, during which the trial court granted a motion for directed verdict on the charge of vehicular homicide based on reckless driving because no evidence was presented at trial that Carder was “setting up a phone and changing the stereo” as alleged in the indictment. The jury convicted Carder of the remaining charges, and she filed a motion for new trial, which she then amended numerous times. Carder now appeals the denial of that motion.

Briefly summarized, and construed to support the verdict, the evidence shows that the accident giving rise to the charges against Carder occurred in the afternoon on Saturday, June 18, 2005 when Carder, who was driving a Land Rover on Highway 369 in Forsyth County, crossed the centerline into the oncoming lane of traffic. One of the two vehicles traveling in her direction was able to swerve into a ditch and avoid a collision, but the Land Rover hit the driver’s side of the other vehicle, killing one of the occupants almost instantly and causing injury to the other occupants.

An officer testified that he detected an odor of alcohol when he spoke to Carder at the scene and that she told him at that time that she had consumed wine at lunch. This same officer also spoke with Carder at the hospital, where he again detected “a lingering odor of alcohol about her person,” Carder, 301 Ga. App. at 905 (2). The officer also observed that her face was flushed, her eyes were glossy, and her speech was slurred. Id. Based on these and other signs of impairment, the officer placed Carder under arrest for DUI (less safe), advised Carder of her implied consent rights, and requested that she submit to a blood test. Id. at 904-905 (2). Carder refused the State’s request to test her blood, and although the trial court initially ruled evidence of Carder’s refusal inadmissible at trial, we reversed that ruling on appeal. Id. at 906 (2). Other facts will be set forth as necessary to address Carder’s specific contentions on appeal.

1. Carder first contends that her prosecution for vehicular homicide and serious injury by vehicle was time-barred because the statute of limitation had run on the misdemeanor predicate offenses underlying those charges. But this Court has previously decided this issue adversely to Carder, Leachman v. State, 286 Ga. App. 708 (649 SE2d 886) (2007), and we decline Carder’s request to overrule that case since that decision seems to be well-founded. See also State v. Jones, 274 Ga. 287, 288 (1) (553 SE2d 612) (2001) (“expiration of the limitations period for the underlying felony does not preclude a prosecution for felony murder”). Further, although Carder also argues that her conviction must be reversed because the State failed to prove that she was prosecuted within the applicable li mitation period, this argument also appears to be premised on her contention that the State was required to prove that it commenced the prosecution against her within the limitation period applicable to the predicate misdemeanor charges. As the trial court noted, that contention is clearly contrary to the holding in Leachman and, accordingly, is likewise unavailing. Based on the foregoing, this enumeration presents no basis for reversal.

2. Carder next contends that the trial court erred by admitting evidence of a similar transaction to show bent of mind and course of conduct. Further, she contends that the trial court erred by failing to give her Request to Charge No. 14 to the effect that such bent of mind and course of conduct are not essential elements of proving the offense of driving under the influence.

The similar act evidence showed that in 2010, Carder was arrested for driving under the influence after police were alerted to the fact that she had refused the offer of a taxicab and left a hair salon after apparently having consumed alcohol in the middle of the day to the point that she appeared intoxicated to the salon workers. As in the present case, the arresting officer smelled alcohol on Carder’s person and observed manifestations that she was intoxicated. Further, as in the present case, Carder refused to submit to the State’s requested test, which in that case was a breath test.

As Carder acknowledges on appeal, the Supreme Court of Georgia has held that similar transaction evidence may be properly admitted to show bent of mind or course of conduct in DUI cases. Noble v. State, 275 Ga. 635 (570 SE2d 296) (2002). E.g., Ayiteyfio v. State, 308 Ga. App. 286, 290 (2) (707 SE2d 186) (2011); Steele v. State, 306 Ga. App. 870, 872 (1) (703 SE2d 5) (2010); Gamble v. State, 283 Ga. App. 326, 327 (2) (641 SE2d 556) (2007); Moody v. State, 273 Ga. App. 670, 671 (2) (615 SE2d 803) (2005). She argues, however, Noble is wrongly-decided and should be overruled, “particularly in light” of the new Evidence Code. See OCGA §§ 24-4-417 (b) and 24-4-404 (b); see also Johnson v. State, 292 Ga. 22, 25 (2), n. 3 (733 SE2d 736) (2012) (noting that “ ‘course of conduct’ and ‘bent of mind’ are not listed among the purposes for introducing similar transaction evidence under the new Georgia Evidence Code”). But Carder was tried before the January 2013 effective date of the new Evidence Code. Moreover, for cases tried before that date, we are “not authorized to depart from the precedent of the Supreme Court of Georgia authorizing the bent of mind rationale for admitting similar transaction evidence [in cases of this type].” Steele, 306 Ga. App. at 873 (2).

Lastly, we find no error due to the trial court’s failure to give her requested charge on bent of mind and course of conduct. The transcript shows that the trial court charged the jury on the proper use of similar transaction evidence when the evidence was admitted and again during its final instructions to the jurors, and Carder has not shown, and indeed puts forth no specific reason, why we should grant her a new trial due to the trial court’s failure to give this additional charge.

3. In her third and fourth enumerations of error, Carder argues that the trial court erred by refusing to give her charge on accident and proximate cause, pointing out that the indictment alleged that the felonies as charged had to be caused by the underlying offenses. First, as the State points out, the charge on accident was not adjusted to the uncontroverted evidence that Carder caused the collision by crossing the centerline, and there was no evidence that Carder committed this act involuntarily. Cf. State v. Ogilvie, 292 Ga. 6, 9 (2) (b) (734 SE2d 50) (2012) (“Accordingly, a jury charge on the defense of accident to a strict liability traffic offense is available only where there is evidence, however slight, that the defendant did not voluntarily commit the prohibited act.”). Further, the trial court did in fact charge the jury on the necessary causal connection between the underlying predicate offenses and the charged felonies. This enumeration is thus also without merit.

Decided June 4, 2014.

Banks & Stubbs, Rafe Banks III, for appellant.

Penny A. Penn, District Attorney, Jennifer L. Scalia, Assistant District Attorney, for appellee.

4. Lastly, Carder argues that the “trial was a nullity” because the trial court dismissed the entire case when it consented to the State’s request to nolle prosse the charges that had been indicted outside the limitation period. However, the State’s petition for entry of nolle prosequi, which appeared on the same page as the trial court’s consent to the nolle prosequi, clearly referred to the specific counts on which the limitation period had run. Thus, even if the trial court’s “consent” did not contain such a reference, it was clear that the nolle prosequi pertained just to those offenses. Accordingly, we reject Carder’s claim that her trial was a “nullity” because the entire case had been dismissed.

Judgment affirmed.

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

       Carder does not challenge the sufficiency of the evidence, and we set forth only the facts here necessary to place her arguments in context.

       Carder indicated to the trial court that she intended to request that the jury be charged that the prosecution had to be commenced within two years, which is the limitation period applicable to the predicate offenses. However, it does not appear that Carder in fact requested this or any other charge on the State’s burden to prove that her prosecution was timely.

       Carder suggests on appeal that multiple similar transactions were admitted at trial. Although the State requested that it be allowed to submit evidence of two separate similar transactions and the trial court deemed both transactions admissible, the State admitted evidence of only one such transaction at trial.

       Although Noble dealt with prior crimes or acts, our Supreme Court has explicitly acknowledged that the test for admission of similar transaction evidence is the same whether the independent offense occurred before or after the crimes charged. Whitehead v. State, 287 Ga. 242, 249 (3) (695 SE2d 255) (2010). See also Ayiteyfio v. State, 308 Ga. App. 286, 289 (2) (707 SE2d 186) (2011) (“[i]t does not matter that the two incidents occurred after” defendant’s arrest for the charged crimes).

       The trial court charged that homicide by vehicle occurs when the accused “causes the death of another person” by driving under the influence and that the offense of serious injury by vehicle occurs “through a violation” of reckless driving or driving under the influence.


text:
    A14A0582.
    GREEN CERTIFIED ENERGY PROFESSIONALS, INC. v. INSULATION DISTRIBUTORS, INC.
    (759 SE2d 554)
   ELLINGTON, Presiding Judge.

Green Certified Energy Professionals, Inc. (“Green”) appeals from an order of the Superior Court of Gilmer County domesticating a default judgment obtained by Insulation Distributors, Inc. (“Insulation”) in a Minnesota state court. Green contends that the superior court erred in domesticating the judgment because Insulation failed to carry its burden of negating Green’s defense of lack of personal jurisdiction. For the reasons set forth below, we agree and reverse.

Under the full faith and credit clause of the United States Constitution, the courts of this state will enforce the judgment of a court of another state; such a judgment is res judicata between the parties. When suit is brought in this state to domesticate a foreign judgment, the judgment may be attacked only if the foreign court lacked jurisdiction over the person of the defendant or of the subject matter of the action, or if the judgment was procured by fraud. Generally, if the foreign judgment was obtained by default, no presumption of personal jurisdiction exists, and the burden is on the party seeking to domesticate the judgment to negate the defense of lack of jurisdiction. However, where jurisdictional issues are raised and decided against a litigant in a foreign court, the foreign judgment is given full faith and credit not only as to the merits of the suit but also as to the finding of jurisdiction.

(Citations and punctuation omitted.) Murdock v. Madison River Terminal, 249 Ga. App. 608, 609-610 (1) (547 SE2d 802) (2001). See also OCGA § 9-12-114 (2) (“A foreign judgment shall not be recognized if... [t]he foreign court did not have personal jurisdiction over the defendant[.]”). “A trial court’s ruling on a motion to set aside a judgment will be affirmed if there is any evidence to support that ruling.” (Citation and punctuation omitted.) Aqua Sun Investments v. Kendrick, 240 Ga. App. 671, 673 (2) (524 SE2d 519) (1999).

The appellate record shows as follows. On or about November 29, 2012, Insulation sued Green and Charles D. Chastain in the State of Minnesota, Carver County District Court, to collect on a debt. On December 6, 2012, Insulation served Chastain and attempted to serve Green by personally delivering suit papers to Chastain in North Carolina. On December 6, Chastain was neither an officer of nor the registered agent for Green. Although Chastain had previously served in both capacities, the records of the Secretary of State of Georgia showed that, as of August 17, 2012, Chastain was no longer an officer or registered agent of the corporation. Rather, Green’s corporate filings showed that it could be served at its corporate headquarters in Ellijay. There is no evidence in the record that Insulation made any other effort to perfect service upon Green. The Minnesota court entered a default judgment in Insulation’s favor on April 17, 2013.

On May 30, 2013, Insulation filed the instant motion to domesticate the Minnesota judgment. Green filed a response, asking the court to refuse to recognize the judgment on the ground that service upon it had never been perfected. After reviewing the record and briefs of the parties, the court entered an order domesticating the judgment. In reaching its decision, the court acknowledged that it lacked information concerning whether the issue of service of process had been raised and litigated in the Minnesota court. Without reference to Minnesota law, the court concluded that, since service had “attached” to Chastain, who had “previously” been Green’s registered agent, Green presumably had knowledge of the suit and, thus, had an opportunity to litigate the case in Minnesota if it had wished to do so.

The record before us does not contain any of the pleadings filed by the parties in the Minnesota action, so it does not show whether Green litigated the issue of lack of personal jurisdiction. However, in its final judgment, the Minnesota court found as a matter of fact that Green had filed “[n]o answer or other appearance.” Further, although the Minnesota court found that a copy of the summons and complaint had been served upon Green, it did not specify how service had been perfected. Based upon these and other findings of fact, the court entered a default judgment against Green. Because the Minnesota court entered a default judgment against Green, no presumption of personal jurisdiction exists. Insulation, as the party seeking to domesticate the judgment, has the burden of negating Green’s defense of lack of jurisdiction and of establishing that, pursuant to Minnesota law, service upon Green had been perfected such that the Minnesota court had acquired personal jurisdiction over it. Murdock v. Madison River Terminal, 249 Ga. App. at 609-610 (1).

Minnesota Rule of Civil Procedure 4.03 (c) provides, in pertinent part, that service upon a corporation may be made by “delivering a copy [of the summons and complaint] to an officer or managing agent, or to any other agent authorized expressly or impliedly or designated by statute to receive service of summons.” The Supreme Court of Minnesota has held that service of process in a manner not authorized by Rule 4 is ineffective. Duncan Electric Co. v. Trans Data, Inc., 325 NW2d 811, 812 (Minn. 1982) (service of process upon an individual without express or implied authority to receive service was ineffective under Rule 4). Although, under Minnesota law, rules governing service are liberally construed when the intended recipient had prompt, actual notice of the lawsuit, Larson v. Hendrickson, 394 NW2d 524, 526 (Minn. Ct. App. 1986), actual notice will not subject a defendant to personal jurisdiction absent the plaintiff’s substantial compliance with Rule 4. Thiele v. Stich, 425 NW2d 580, 584 (III) (Minn. 1988). Moreover, this actual notice exception “has been recognized only in cases involving substitute service at [the] defendant’s residence.” (Citation omitted.) Id. Finally, “[i]n order for one to be an agent expressly or impliedly authorized to receive service under Rule 4.03 (c), it is first necessary that there be an actual agency relationship.” (Citations and punctuation omitted.) Winkel v. Eden Rehabilitation Treatment Facility, 433 NW2d 135, 137 (Minn. App. 1988).

Decided June 4, 2014.

D. Charles Fulcher, for appellant.

Macey, Wilensky & Hennings, Hal J. Leitman, for appellee.

In this case, there is no evidence in the record from which the superior court could infer that Chastain had an agency relationship with Green at the time process was served, that Chastain was expressly or impliedly authorized to receive service of process on Green’s behalf, that Insulation substantially complied with Minn. R. Civ. R 4.03 (c), or that Green had actual knowledge of the Minnesota suit. Given the record in this case, we must conclude that Insulation failed to sustain its burden of negating Green’s jurisdictional defense. See Murdock v. Madison River Terminal, 249 Ga. App. at 609-610 (1); OCGA § 9-12-114(2). Consequently, the court erred in denying Green’s motion to set aside and in domesticating the foreign judgment.

Judgment reversed.

Phipps, C. J., and McMillian, J., concur.

       “With regard to relief from such a judgment, the proper method for attacking a foreign judgment filed in Georgia under the [Uniform Enforcement of Foreign Judgments Law] is a motion to set aside under OCGA § 9-11-60 (d).” (Citation and punctuation omitted.) Noaha, LLC v. Vista Antiques & Persian Rugs, 306 Ga. App. 323, 326 (1) (702 SE2d 660) (2010). OCGA § 9-11-60 (d) (1) provides, in pertinent part, that a judgment may be collaterally attacked based upon “lack of jurisdiction over the person[.]” Green’s motion was not styled as a motion to set aside a judgment pursuant to OCGA § 9-1Í-60 (d); however, because that was essentially the substance of the motion, we will treat it as such. See Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 589-590 (690 SE2d 397) (2010) (in pleadings, substance controls over nomenclature).


text:
    A14A1170.
    CALDWELL v. THE STATE.
    (758 SE2d 325)
   ELLINGTON, Presiding Judge.

The Superior Court of Dodge County revoked the probation of William Caldwell, who was under sentence for aggravated assault, OCGA § 16-5-21 (a) (1) (with intent to rape). This Court granted Caldwell’s petition for a discretionary appeal under OCGA § 5-6-35 (a) (5). Caldwell appeals, contending, inter alia, that the trial court erred in finding that he violated his probation on the basis that he had sexually-oriented, sexually-stimulating images on his cellular phone. For the reasons explained below, we affirm.

Under Georgia law, a trial court may revoke a probated sentence if “the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations [of the conditions of probation] alleged.” OCGA § 42-8-34.1 (b). See also OCGA § 42-8-34.1 (e) (violations of special conditions of probation). “This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.” (Citation and punctuation omitted.) Gray v. State, 313 Ga. App. 470, 471 (722 SE2d 98) (2011). In terms of the sufficiency of the evidence, this Court will affirm the judgment of revocation if the record includes some competent evidence to show that the defendant violated the terms of his probation in the specific manner charged, notice of which must be provided in writing before the probation revocation hearing. Wolcott v. State, 278 Ga. 664, 667 (2) (604 SE2d 478) (2004); Bickel v. State, 323 Ga. App. 902, 903 (749 SE2d 1) (2013); Dillard v. State, 319 Ga. App. 299, 300 (735 SE2d 297) (2012). However, we review questions of law de novo. White v. State, 274 Ga. App. 805 (619 SE2d 333) (2005).

In this case, the record shows that the “sex offender” conditions of Caldwell’s probation provided that, except as authorized by the court or his probation supervisor, he would not possess any type of photograph or digital imagery of “any minor” and that he would not possess “any sexually-oriented, sexually-stimulating material, to include mail, computer or television.” The State notified Caldwell in writing that he was accused of violating those conditions by having images of minors and sexually-oriented images on his cell phone. At the probation revocation hearing, the State introduced evidence that Caldwell’s probation supervisor performed a routine search of photographs stored in Caldwell’s cell phone on September 16,2013. In terms of sexually-oriented, sexually-stimulating material, the State offered six photographs: (1) an adult woman dressed in a short-sleeved top and shorts, with her midriff bare, pulling the waistband of the shorts down on one side to show the top of her underwear; (2) a head-and-shoulders view of a woman displaying ample cleavage; (3) a closeup in profile of a woman’s hip area, clothed in bikini underwear or a swimsuit bottom, showing a bare midriff and partially bare buttock; (4) Caldwell from shoulders to knees, nude except that his genitals are concealed in a black thong; (5) Caldwell in profile before a shower curtain, with a bare midriff and wearing dark underwear, with his hand near his groin, where the silhouette suggests an erect penis; (6) Caldwell wearing white underwear, in a closeup of his groin with his fingers pulling the fabric tightly around the tip of his penis. The trial court found, inter alia, that Caldwell had possessed sexually-oriented material in violation of the conditions of his probation and revoked the balance of his probation.

1. Caldwell contends that the condition of his probation regarding sexually-oriented, sexually-stimulating material, which was incorporated in the judgment entered on August 8, 2000, is overbroad and unreasonably vague and is not reasonably related to the rehabilitative goals of probation. See Ellis v. State, 221 Ga. App. 103 (470 SE2d 495) (1996). Caldwell, however, has never filed a direct challenge to the validity of that judgment. See id. The only issues presented in the proceeding for revocation of probation were whether Caldwell received the required notice of the grounds for revocation and whether the State proved by a preponderance of the evidence that he violated the conditions of his probation in the manner charged. See Dillard v. State, 319 Ga. App. at 300; Carlson v. State, 280 Ga. App. 595, 599 (2) (634 SE2d 410) (2006). Accordingly, this argument presents no basis for reversing the trial court’s December 17, 2013 order revoking the balance of his probation.

2. Caldwell contends that the trial court erred in finding that the images at issue constituted sexually-oriented, sexually-stimulating material. Although the images may not constitute what is ordinarily deemed to be obscene* or even sexually-explicit, 3we cannot say that a reasonable finder of fact could not find, at least with regard to the photographs that emphasized the attributes (shape, size, and/or impliedly turgid state) of Caldwell’s penis, that he possessed material that was sexually oriented and sexually stimulating. See Veats v. State, 300 Ga. App. 600, 602-604 (1) (685 SE2d 416) (2009).

3. Given our holding in Division 2, supra, Caldwell’s argument that the trial court erred in revoking his probation on the alternative basis that he possessed photographs of his two minor nephews is moot.

4. Caldwell contends that, when the trial court sentenced him on August 8,2000, the trial court failed to give him appropriate credit for time he had served on probation pursuant to Georgia’s First Offender law. The record shows that Caldwell was originally charged with aggravated assault in 1996 and that he was sentenced pursuant to the First Offender Act on November 27, 1996. The trial court adjudicated Caldwell guilty of aggravated assault on August 2, 2000, and sentenced him to 20 years, the maximum punishment allowed for aggravated assault. OCGA § 16-5-21. In the August 2, 2000 judgment, the trial court indicated, “credit for time served since 8-12-98.” As Caldwell contends, “probation time must be credited to any subsequent sentence received, including cases involving [Fjirst [OJffender probation.” (Citations and punctuation omitted.) Franklin v. State, 236 Ga. App. 401, 402 (1) (512 SE2d 304) (1999). The record does not show the basis for the trial court’s direction that Caldwell receive credit for time served from August 12, 1998, rather than from November 27, 1996. Caldwell’s argument presents no basis for reversing the trial court’s December 17, 2013 order revoking the balance of his probation, however, because the August 2, 2000 judgment reflects the trial court’s intention that Caldwell receive credit for time served. See Kaylor v. State, 312 Ga. App. 633, 636 (2) (719 SE2d 530) (2011). Because the record before us is silent on the issue of the length of his creditable probation service, there is no basis for finding that the August 2, 2000 judgment gave “gratuitous misdirection to the correctional custodians” regarding the amount of credit he should receive. (Citation and footnote omitted.) Cutter v. State, 275 Ga. App. 888, 890-891 (2) (622 SE2d 96) (2005) (When a written sentencing order gives gratuitous misdirection to the correctional custodians regarding the amount of creditable time served, we will “remand the case to the trial court to strike the offending language from the sentencing order.”) (citation and footnote omitted); Johnson v. State, 248 Ga. App. 454, 455 (3) (546 SE2d 562) (2001) (Where the written sentencing order improperly included the direction, “[n]o credit for time served previously[,]” this Court directed that the trial court strike that language from the judgment.). Because the Department of Corrections, as the post-judgment custodian, is charged with calculating the end date of Caldwell’s sentence, his remedy lies there. Cutter v. State, 275 Ga. App. at 890 (2); Maldonado v. State, 260 Ga. App. 580 (580 SE2d 330) (2003).

Decided May 2, 2014

Reconsideration denied June 5, 2014.

Steven M. Harrison, for appellant.

Timothy G. Vaughn, District Attorney, Christopher C. Gordon, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, C. J., concurs. McMillian, J., concurs in Divisions 1, 2 and 3, and concurs in the judgment only in Division 4.

       Material is obscene if:
      (1) To the average person, applying contemporary community standards, taken as a whole, it predominantly appeals to the prurient interest, that is, a shameful or morbid interest in nudity, sex, or excretion;
      (2) The material taken as a whole lacks serious literary, artistic, political, or scientific value; and
      (3) The material depicts or describes, in a patently offensive way, sexual conduct specifically defined in subparagraphs (A) through (E) of this paragraph:
      (A) Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated;
      (B) Acts of masturbation;
      (C) Acts involving excretory functions or lewd exhibition of the genitals;
      (D) Acts of bestiality or the fondling of sex organs of animals; or
      (E) Sexual acts of flagellation, torture, or other violence indicating a sadomasochistic sexual relationship.
      OCGA § 16-12-80 (b). See also OCGA § 16-12-81 (b) (1) (For the offense of distributing material depicting nudity or sexual conduct, “nudity” is defined as “the showing of the human male or female genitals, pubic area, or buttocks with less than a full opaque covering-or the depiction of covered male genitals in a discernibly turgid state.”).

       As defined in the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007, “sexually explicit conduct” means actual or simulated:
      (A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
      (B) Bestiality;
      (C) Masturbation;
      (D) Lewd exhibition of the genitals or pubic area of any person;
      (E) Flagellation or torture by or upon a person who is nude;
      (F) Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;

        (G) Physical contact in an act of apparent sexual stimulation or gratification with any person’s unclothed genitals, pubic area, or buttocks or with a female’s nude breasts;
      (H) Defecation or urination for the purpose of sexual stimulation of the viewer; or
      (I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.
      OCGA § 16-12-100 (a) (4). See also OCGA § 16-12-81 (b) (2) (For the offense of distributing material depicting nudity or sexual conduct, “sexual conduct” is defined as “acts of masturbation, homosexuality, sodomy, sexual intercourse, or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breast.”).

       As the State points out, the running of probation time may be suspended if, inter alia, a probation warrant is returned non est inventus. Wilson v. State, 292 Ga. App. 540, 541-542 (664 SE2d 890) (2008).