author: Dillard, Judge.

text:
    A13A0694, A13A0695.
    A13A1605.
    FULTON COUNTY v. LORD et al.; and vice versa. FULTON COUNTY v. LORD et al.
    (746 SE2d 188)
   Dillard, Judge.

In 2006, Georgia Lord and 22 other Judicial Staff Attorneys (“law clerks”) employed by the Superior and State Courts of Fulton County filed a grievance against Fulton County, pursuant to the County’s civil-service policies, claiming that they were unfairly paid less than the staff attorneys employed by the County Attorney’s office (“CASAs”), despite performing similar work. Ultimately, the grievance was submitted to arbitration, also pursuant to the County’s policies, in which the law clerks prevailed and were awarded injunctive relief and back pay. A superior court confirmed the award, and the County now appeals.

In Case No. A13A0694, the County contends that the superior court erred in confirming the arbitration award, arguing that the award of back pay was barred by the doctrine of sovereign immunity. The County further contends that the court erred in denying the County’s request for relief from a stipulation as to damages. In Case No. AÍ3A0695, the law clerks cross-appeal, arguing that the court erred in stating that the County had to achieve pay parity between the law clerks and the CASAs as of the date of the court’s confirmation order instead of the date of the arbitration award. And in Case No. A13A1605, the County contends that the trial court erred in granting the law clerks’ motion for sanctions under OCGA § 9-15-14.

For the reasons set forth infra, we affirm in Case Nos. A13A0694 and A13A1605. However, because we agree that the superior court’s confirmation order should have stated that the County had to achieve pay parity as of the date of the arbitration award, in Case No. A13A0695, we vacate that portion of the order and remand the case to the superior court for further proceedings consistent with this opinion.

The record shows that in 1995, the County hired a consulting firm to perform an in-depth “job and pay classification study” in order to assist the County in developing a comprehensive compensation system. In 1997, the consulting firm’s study and classification system was adopted by the County Commission. Under this system, CASAs and judicial law clerks received an identical pay grade (C-42) and job classification code (Attorney, Staff - 606022). Also pursuant to the study, the County adopted a concept designated as “premium pay” to address situations in which particular job classifications received less compensation than similar positions outside of County employment. But while the consulting firm’s study found that the 606022 classification as a whole was compensated 36 percent less than similar nonCounty positions, the County Commission awarded premium pay to CASAs but not to the law clerks. As a result, CASAs received significantly more in salary than the law clerks.

In 2005, the County Commission eliminated “premium pay” but created a new pay scale for licensed professionals, which it designated as “Schedule B.” Under Schedule B, CASAs continued receiving the 36 percent premium pay. And although Schedule B did not change the fact that CASAs and law clerks were designated with the same job classification and did not indicate any substantive changes in the job responsibilities of either position, the law clerks were not included in Schedule B and, thus, continued to receive approximately 36 percent less in salary than the CASAs.

In 2006, the law clerks filed a group-pay grievance pursuant to the rules governing the County’s civil-service system. Specifically, the law clerks claimed that they were not receiving “equal pay for equal work,” as required by the County’s personnel regulations, in light of the fact that the CASAs received approximately 36 percent (nearly $20,000) more in annual salary and despite being in the same job classification and performing equivalent duties. Consequently, the law clerks sought an end to this pay disparity, including back pay. For over two years thereafter, the law clerks’ grievance was not heard, despite the fact that County Policy (“P&P”) § 100-24 provided that grievances may be filed to resolve “Classification and pay issues.” This policy notwithstanding, the County’s Grievance Review Committee (“GRC”) claimed the issue was not subject to grievance procedures because the proper remedy was to seek a salary reclassification through the Personnel Board. However, the Personnel Board similarly refused to hear the law clerks’ grievance. Ultimately, the law clerks filed a writ of mandamus in the Superior Court of Fulton County. The court granted the writ, ruling that the law clerks had a right to have their grievance heard, a right to appeal the GRC’s decision to the County Manager, and a right to seek arbitration pursuant to County policies.

In November 2009, the GRC heard the law clerks’ grievance and denied the claim five months later. The County Manager upheld that decision, and, thereafter, the law clerks commenced arbitration. The parties then agreed to an arbitrator, who directed the law clerks to file a demand for arbitration and the County to file an answer. In their demand, the law clerks alleged that the arbitrator had jurisdiction over the matter and sought relief for the County’s violation of law and breach of contract (i.e., an end to the pay disparity and a recovery of back pay). The County answered, and discovery ensued.

After discovery concluded, the arbitrator scheduled a hearing on whether the County was liable for the pay disparity, pursuant to an earlier agreement between the parties that liability would be determined in phase one of the proceedings and damages would be determined, if necessary, in phase two. The hearing was held on June 13 and 14, 2011, during which the arbitrator heard evidence regarding the County’s job classification and compensation system, as well as evidence regarding the CASAs and law clerks’ job duties. And on August 25, 2011, the arbitrator issued an award in favor of the law clerks, ruling that the County had violated its own policies and ordinances by paying the law clerks less than it paid CASAs.

A few weeks later, at a status conference that had been scheduled to discuss various aspects of the damages issue, the County announced that it was considering whether to assert that the doctrine of sovereign immunity barred the law clerks’ claim for back pay. The arbitrator ordered the parties to brief the issue and ultimately scheduled a hearing for December 2, 2011. Prior to this hearing, the parties apparently resolved the damages issue by agreement and stipulation to the method for calculating back pay, benefits, and interest. Thereafter, the hearing on the County’s sovereign-immunity defense was held, and a few weeks later, on December 29, 2011, the arbitrator issued an order ruling that sovereign immunity did not bar the law clerks’ claim for back pay. On that same day, the arbitrator issued a final award in favor of the law clerks, which included $4,354,692.90 for back pay and prejudgment interest from the date of the award to the entry of judgment.

On January 11, 2012, the law clerks filed a motion to confirm the arbitration award in the superior court. Approximately one month later, the County filed a motion to dismiss the award, or in the alternative, to vacate it, arguing that the law clerks’ claim for back pay was barred by the doctrine of sovereign immunity. On July 24, 2012, after holding a hearing one month earlier, the superior court denied the County’s motion and confirmed the arbitrator’s award. Shortly thereafter, the law clerks filed a motion for entry of judgment, in which they argued that, in addition to the arbitrator’s award, they were entitled to back pay that accrued during the time period between the entry of the award and the entry of the superior court’s judgment. In opposing that motion, the County — for the first time— argued that the calculations for back pay, to which they had previously agreed and stipulated to during the arbitration proceedings, were “grossly inflated.” And during a hearing on the matter, the County argued that the stipulation was the result of a mistake.

Nevertheless, on August 30, 2012, the superior court entered judgment on the confirmed award but did not include the accrued post-award back pay that the law clerks requested. Not long thereafter, the law clerks filed a motion seeking attorney fees pursuant to OCGA § 9-15-14. The superior court granted the motion and awarded the law clerks $94,557.50 in attorney fees. These appeals follow.

Case No. A13A0694

At the outset, we note that the purpose of Georgia’s Arbitration Code is to allow participating parties “to obtain an expeditious and final resolution of disputes by means that circumvent the time and expense associated with civil litigation.” To achieve that purpose, our Arbitration Code “places strict limits on the scope of a trial court’s review of an arbitrator’s award and on any subsequent review by an appellate court” In fact, the Code “requires courts to give extraordinary deference to arbitration awards and commands that a trial court shall confirm an award upon application of a party made within one year after its delivery to the party, unless the award is vacated or modified by the court as provided in the Arbitration Code.” Toward that end, OCGA § 9-9-13 (b) “lists five grounds for vacating arbitration awards, and these statutory grounds provide the exclusive bases for vacatur.” Specifically, that statute provides as follows:

The award shall be vacated on the application of a party who ... participated in the arbitration ... if the [trial] court finds that the rights of that party were prejudiced by:
(1) Corruption, fraud, or misconduct in procuring the award;
(2) Partiality of an arbitrator appointed as a neutral;
(3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made;
(4) A failure to follow the procedure of this part, unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection; or
(5) The arbitrator’s manifest disregard of the law.

Additionally, our Arbitration Code also directs that “[t]he fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.”

In the case sub judice, only manifest disregard of the law is at issue. But it is important to note that in the arbitration context, “the concept of manifest disregard has never been the equivalent of insufficiency of the evidence or a misapplication of the law to the facts.” Indeed, it is a much narrower standard, “requiring a showing in the record, other than the result obtained, that the arbitrators knew the law and expressly disregarded it.” Moreover, an arbitrator that incorrectly interprets the law has not manifestly disregarded it, but “has simply made a legal mistake.” With these guiding principles in mind, we turn now to the County’s specific claims of error.

1. The County contends that the superior court erred in denying its motion to dismiss the law clerks’ motion to confirm the arbitration award. Specifically, the County argues that the law clerks’ claim for back pay is barred by the doctrine of sovereign immunity and, therefore, that the arbitrator’s failure to rule accordingly constituted a manifest disregard of the law. We disagree.

As this Court has previously noted, “sovereign immunity is a threshold issue.” And it is, of course, well established that “the sovereign cannot be sued in its own courts, or in any other court, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals.” In fact, pursuant to our Constitution, except as specifically provided therein, “[t]he sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Importantly, the Supreme Court of Georgia has held that our Constitution’s “reservation of immunity to the state or any of its departments or agencies include[s] the counties of the State of Georgia.” Nevertheless, our Constitution has specifically waived the State’s sovereign immunity for “any action ex contractu for the breach of any written contract.”

Putting aside whether the County’s personnel regulation specifically allowing for arbitration of its employees’ pay grievances in and of itself constituted a waiver of sovereign immunity, the law clerks’ claim for back pay here sounds in contract and, therefore, is not barred by sovereign immunity. Indeed, there is a definite contractual relation “between every employee and employer whether the employee is a public officer or not.” And the payment of salary to government employees “is a perfunctory administrative duty not included under the category of government functions and not barred by any statutory immunity.” Moreover, to bar government employees from recovering pay for services they performed by allowing their government employer to claim immunity “would violate the prohibition against the impairment of a contract which is found in both the State and Federal Constitutions.” Thus, the law clerks’ claim against the County for back pay is not barred by the doctrine of sovereign immunity. And under these circumstances, the County certainly has not demonstrated that the arbitrator deliberately ignored applicable law. Accordingly, the trial court did not err in denying the County’s motion to dismiss the law clerks’ motion to confirm the arbitration award.

2. The County also contends that the superior court erred in denying the County’s request for relief from a stipulation that it entered into as to the manner by which to calculate the law clerks’ back pay, arguing that its agreement to this stipulation was the result of a mistake. The County further argues that the award of back pay is void because it violates the Gratuities Clause of the Georgia Constitution. These arguments lack merit.

Similar to OCGA § 9-9-13 (a), which requires a party seeking to vacate an arbitration award to file such an application within three months, OCGA § 9-9-14 (a) provides: “An application to modify the award shall be made to the court within three months after delivery of a copy of the award to the applicant.” Here, as previously noted, the arbitrator issued its final award in favor of the law clerks on December 29, 2011, and the law clerks filed their motion to confirm the award in the superior court on January 11, 2012. The superior court then confirmed the award on July 24, 2012. But the County made no mention of the alleged mistake regarding the stipulation for calculating back pay and the consequent need to reduce the award until the August 13, 2012 hearing on the law clerks’ motion for an entry of judgment. Thus, the County did not request to modify the arbitrator’s award until eight months after it was issued and nearly one month after it was confirmed. Given these circumstances, the County cannot be allowed to circumvent the statute of limitation governing arbitration awards by now claiming that the award should be modified.

The County further argues that the award of back pay to the law clerks is void because it violates the Gratuities Clause of the Georgia Constitution, which prohibits the General Assembly from granting “extra compensation to any public officer... after the service has been rendered or the contract entered into.” But the County failed to raise this issue before either the arbitrator or the superior court, and therefore, neither ruled on the issue prior to this appeal being docketed. It is well established that “[tjhis court is for the correction of errors of law, and where the trial court has not ruled on an issue, we will not address it.” Accordingly, the superior court did not err in denying the County’s request for relief from the stipulation.

Case No. A13A0695

3. In their cross-appeal, the law clerks contend that the superior court erred in holding that the County needed to achieve pay parity between the law clerks and CASAs as of the date of the court’s confirmation order rather than the date of the arbitration award. We agree.

In its final award, the arbitrator stated as follows:

With respect to each of the [law clerks’] claims seeking a declaration that [the law clerks] are entitled to parity on an ongoing future basis in salary, pension and other benefits as compared with CASAs, the Arbitrator rules in favor of [the law clerks] and enters this AWARD directing Respondent Fulton County to (i) cease immediately treating the [law clerks] differently than the CASAs with respect to salary, pension and other benefits, and therefore (ii) to establish parity between the [law clerks] and the CASAs concerning salary, pension and other benefits effective as of January 1, 2012.

After confirming the award, the superior court entered its final entry of judgment on August 30,2012, noting the following in the section of its judgment pertaining to equitable relief: “Pursuant to Arbitrator’s Award, Fulton County is hereby ordered, directed and enjoined to henceforth maintain parity in salary, pension and benefits of employment between Petitioners, as Judicial Staff Attorneys, and Staff Attorneys employed by the Office of the Fulton County Attorney.”

OCGA § 9-9-15 (a) provides: “Upon confirmation of the award by the court, judgment shall be entered in the same manner as provided by Chapter 11 of this title and be enforced as any other judgment or decree.” And as this Court has recently held, “[w]hen a trial court confirms an arbitration award, the judgment must be entered in conformity with the award.” Here, while acknowledging that the superior court’s use of the term “henceforth” in its judgment may have been inadvertent, the law clerks nevertheless argue that in doing so, the court moved the effective date by which the County must implement parity from January 1, 2012 to August 30, 2012, and thus entered a judgment that was not in conformity with the arbitrator’s award. We agree. Accordingly, we reverse as to this part of the superior court’s judgment and remand the case, so that the court may conform this part of the judgment to the arbitrator’s award.

Case No. A13A1605

4. The County further contends that the superior court erred in granting the law clerks’ motion for attorney fees under OCGA § 9-15-14. Again, we disagree.

OCGA § 9-15-14 (a) provides in part:

In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. . . .

Importantly, this part of the Code “provides for a mandatory award of attorney fees.” And generally speaking, when we review an award of attorney fees under OCGA § 9-15-14 (a), we do so “under the ‘any evidence’ standard, a standard that ordinarily is marked by deference to the way in which the court below assessed the relevant evidence.” However,

whether attorney fees are required under OCGA § 9-15-14 (a) depends in some cases not so much upon an assessment of what we usually mean when we speak of “evidence”— testimony and exhibits and the like — but upon an assessment of the state of the law at the time a party advanced a legal argument that, another party now contends, forms the basis for an award of attorney fees. Such an assessment of the state of the law, we think, itself presents a question of law, and we usually do not defer to trial courts about pure questions of law.

Somewhat similarly, OCGA § 9-15-14 (b) allows the trial court to award fees if

... it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct....

And we review subsection (b) awards for abuse of discretion.

Here, the law clerks sought attorney fees pursuant to OCGA § 9-15-14 (a) and (b), arguing, inter alia, that in contesting the motion to confirm the arbitration award, the County’s argument that the superior court’s review to determine if the arbitrator manifestly disregarded the law regarding sovereign immunity was essentially a de novo standard of review. The law clerks contend that this argument, in light of the vast amount of precedent to the contrary, demonstrated a complete absence of any justiciable issue of law and lacked substantial justification. The superior court agreed, stating:

The County’s proffered standard would mean that an arbitrator who simply disagreed with one party’s legal position would be subject to having rulings overturned under the manifest disregard standard whenever a reviewing court subsequently determined that the ruling was not “correct” under the law. Under this standard, every legal disagreement presented to the arbitrator would have to be reviewed de novo on every motion to vacate. The result would make a mockery of the “extraordinary deference” that must be paid to an arbitrator’s determinations and would eliminate the requirement of showing in the record that the arbitrator “expressly disregarded” known, well defined, explicit, and clearly applicable law.

The superior court further found that “[t]he County has shown nothing more than that the Arbitrator disagreed with the County’s position,” and that “[t]his does not come close to establishing a ‘manifest disregard’ of the law.” Consequently, the court awarded the law clerks $94,557.50 in attorney fees pursuant to OCGA § 9-15-14 (a) and (b).

Given these circumstances, we conclude that the superior court was authorized to award attorney fees to the law clerks under OCGA § 9-15-14 (a) and (b). Indeed, the County’s argument in the superior court that it satisfied its burden of showing manifest disregard merely by demonstrating that it made the arbitrator aware of the proper legal analysis of the sovereign-immunity issue and that the arbitrator failed to apply it is not even remotely supported by the significant amount of precedent on this particular issue. Furthermore, as the superior court noted, the County failed to present any evidence that the arbitrator here knew the law on sovereign immunity to be contrary to his award but, nevertheless, ignored it. Thus, the trial court did not err in granting the law clerks’ motion for attorney fees pursuant to OCGA § 9-15-14 (a) and (b).

Decided July 8, 2013

Reconsideration denied July 25, 2013

Lanna R. Hill, James J. Thomas II, Robert D. Ware, Kaye W. Burwell, Jerolyn W. Ferrari, for appellant.

Parks, Chesin & Walbert, Allan L. Parks, Jr., Larry Chesin, Regan E. Keebaugh, for appellees.

5. Finally, the County contends that the superior court erred in awarding the law clerks attorney fees that were not related to their response to the County’s motion to dismiss the arbitration award. Specifically, the County argues that the superior court improperly awarded attorney fees related to work on the law clerks’ motion to confirm the arbitration award. Once again, we disagree.

It is true that in cases involving OCGA § 9-15-14 (a) or (b), the trial court must “limit the fees award to those fees incurred because of the sanctionable conduct.” But here, the billing entries that the County contends were unrelated to the sanctionable conduct were six entries pertaining to the drafting of the proposed confirmation order. And in light of the fact that the confirmation order necessarily addressed the County’s sovereign-immunity arguments, we disagree that the subject billing entries were unrelated. Furthermore, given that evidence of the law clerks’ attorney fees “was admitted without objection and was neither challenged nor rebutted by [the County], the [superior] court properly exercised its discretion in awarding attorney fees based thereon.”

Judgment affirmed in Case Nos. A13A0694 and A13A1605. Judgment vacated and case remanded in Case No. A13A0695.

Andrews, P. J., and McMillian, J., concur.

       Although filed in the Superior Court of Fulton County, the County filed a motion to recuse the judges of that court, and the matter was transferred to a judge of the Superior Court of DeKalb County, who was designated to hear this issue as well as the later confirmation of the arbitration award.

        Brookfield, Country Club, Inc. v. St. James-Brookfield, LLC, 299 Ga. App. 614, 617 (1) (683 SE2d 40) (2009) (punctuation omitted).

        Id. (punctuation omitted; emphasis supplied).

        Id. (footnote and punctuation omitted); see OCGA § 9-9-12.

        Brookfield Country Club, Inc., 299 Ga. App. at 617 (1) (footnote omitted); see Greene v. Hundley, 266 Ga. 592, 594-95 (1) (468 SE2d 350) (1996).

        See OCGA § 9-9-13 (b).

       OCGA § 9-9-13 (d).

        Brookfield Country Club, Inc., 299 Ga. App. at 620 (3) (punctuation omitted).

        Id. at 620-21 (3) (punctuation omitted).

        America’s Home Place, Inc. v. Cassidy, 301 Ga. App. 233, 235 (2) (687 SE2d 254) (2009) (punctuation omitted); see ABCO Builders, Inc. v. Progressive Plumbing, Inc., 282 Ga. 308, 309 (647 SE2d 574) (2007).

        Reidling v. City of Gainesville, 280 Ga. App. 698, 701 (1) (634 SE2d 862) (2006) (punctuation omitted); see also Albertson v. City of Jesup, 312 Ga. App. 246, 248 (718 SE2d 4) (2011) (holding that “sovereign immunity is a threshold issue that the trial court was required to address before reaching the merits of any other argument”).

        DeKalb County School Dist. v. Gold, 318 Ga. App. 633, 636 (1) (734 SE2d 466) (2012) (footnote and punctuation omitted).

       Ga. Const. Art. I, Sec. II, Para. IX (e).

        Gilbert v. Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994) (punctuation omitted).

       Ga. Const. Art. I, Sec. II, Para. IX (c).

        Undercofler v. Scott, 220 Ga. 406, 410 (2) (139 SE2d 299) (1964); see Smith v. City of Atlanta, 167 Ga. App. 458, 461 (2) (306 SE2d 720) (1983) (acknowledging that city firefighter’s claim for back pay sounded in contract).

        Willis v. City of Atlanta, 265 Ga. App. 640, 643 (2) (595 SE2d 339) (2004) (punctuation omitted).

        Smith, 167 Ga. App. at 461 (2).

        See Reason v. DeKalb County, 222 Ga. 63, 65 (1) (148 SE2d 414) (1966) (holding that police officer’s claim against county for back pay sounded in contract and was not barred by county’s immunity); Willis, 265 Ga. App. at 643 (2) (holding that city employee’s claim for back pay sounded in contract and was not barred by city’s assertion of sovereign immunity, although grant of summary judgment in city’s favor was correct for other reasons); Smith, 167 Ga. App. at 461 (2) (holding that firefighter’s claim for back pay sounded in contract and was not barred by cit/s immunity). Cf. Gold, 318 Ga. App. at 642-43 (2) (holding that teachers’ claim against county for retirement benefits sounded in contract and was not barred by sovereign immunity); Alverson v. Employees’ Retirement System of Ga., 272 Ga. App. 389, 391-92 (1) (b) (613 SE2d 119) (2005) (holding that state employees’ claim challenging state’s method of calculating employees’ pensions sounded in contract and was not barred by sovereign immunity).

        See Brookfield Country Club, Inc., 299 Ga. App. at 621 (3). Cf. Ralston v. City of Dahlonega, 236 Ga. App. 386, 390-91 (6) (512 SE2d 300) (1999) (reviewing city’s assertion of sovereign immunity as a bar to arbitration award pursuant to the manifest disregard of the law standard).

        See Ga. Const. Art. Ill, Sec. VI, Para. VI (a).

        See OCGA § 9-9-13 (a) (“An application to vacate an award shall be made to the court within three months after delivery of a copy of the award to the applicant.”).

        See Cypress Comm., Inc. v. Zacharias, 291 Ga. App. 790, 794-95 (2) (662 SE2d 857) (2008) (holding that appellant’s filing of motion to vacate arbitration of award more than three months after it received award was untimely and, thus, properly denied). Cf. Galindo v. Lanier Worldwide, Inc., 241 Ga. App. 78, 84 (4) (526 SE2d 141) (1999) (holding that a motion to vacate raised as a defense to a motion to confirm an award was untimely based on nearly identical language in the FAA).

        See Ga. Const. Art. Ill, Sec. VI, Para. VI (a).

       On December 10, 2012, after Case Nos. A13A0694 and A13A0695 were docketed for appeal, the County raised the Gratuities Clause defense for the first time in a response to the law clerks’ motion to disallow the County from filing additional evidence pertaining to the stipulation to the calculation of damages issue.

        Cypress Comm., Inc., 291 Ga. App. at 795 (3) (punctuation omitted).

       The original order set January 1, 2010, as the date for achieving parity; but this typographical error was corrected by consent order.

       (Emphasis supplied.)

        Kent v. Mitchell, 319 Ga. App. 115, 116 (735 SE2d 110) (2012).

        Roylston v. Bank of America, N.A., 290 Ga. App. 556, 562 (2) (660 SE2d 412) (2008) (punctuation omitted).

        Gibson Constr. Co. v. GAA Acquisitions I, LLC, 314 Ga. App. 674, 675 (725 SE2d 806) (2012).

        Id. at 676.

        See Fox v. City of Cumming, 298 Ga. App. 134, 135 (679 SE2d 365) (2009).

        See Roylston, 290 Ga. App. at 562 (2) (a) (holding that imposition of attorney fees under OCGA § 9-15-14 (a) and (b) was warranted because trial court was authorized to find that plaintiff’s claim was frivolous).

        Id. at 562-63 (2) (a) (punctuation omitted).

        Pineres v. George, 284 Ga. 483, 483-84 (2) (668 SE2d 727) (2008).


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A13A0783.
    A13A0784.
    In re BURLEIGH L. SINGLETON. VAN LEUVAN v. CARLISLE.
    (744 SE2d 912)
   ELLINGTON, Presiding Judge.

These consolidated appeals arise from an order in an ongoing visitation dispute between Kellie Van Leuvan, the mother of a minor child (hereinafter, “the mother”), and Connie Carlisle, the child’s maternal grandmother (hereinafter, “the grandmother”). In the order, the Superior Court of Fulton County found the mother to be in willful civil contempt of its temporary visitation order, and it ordered the mother and her former attorney, Burleigh Singleton, to pay the grandmother the attorney fees that resulted from her having to prosecute two contempt motions against the mother, pursuant to OCGA § 9-15-14 (a) and (b). In Case No. A13A0783, Singleton contends that the court erred in ordering him to pay OCGA § 9-15-14 attorney fees. In Case No. A13A0784, the mother contends that there is insufficient evidence to support the court’s contempt ruling; she also challenges the court’s order that she pay OCGA § 9-15-14 attorney fees. Because the record supports the court’s order and we discern no error or abuse of discretion, we affirm the judgment in both cases.

The record shows the following, undisputed facts. In February 2011, the grandmother filed a petition asking for visitation with her granddaughter, who was four years old at the time and was living with her mother, who was divorced from the child’s father. On May 31, 2012, following an evidentiary hearing, the trial court issued a temporary order (hereinafter, the “visitation order”) in which it found that the grandmother had met her burden, under OCGA § 19-7-3 (a), of showing that she was entitled to visitation with the child. The visitation order stated, in relevant part, as follows:

Petitioner [(i.e., the grandmother)] shall have the following visitation with the minor child [:]... 1. Petitioner shall have seven (7) uninterrupted days of visitation with [the child] during the summer months of June, July, or August. Respondent [(i.e., the mother)] shall determine within five (5) days of this order when [this visitation shall occur].... 2. During the school year, August through May, Respondent!] shall have one (1) Thursday night with [the child] per month. The designated Thursday night shall correspond with [the child’s] visitation with her father . . . that is to begin the following Friday. Respondent shall pick [the child] up from school on the designated Thursday and return [the child] to school the following Friday morning.

The mother filed an application for interlocutory review of the visitation order, and this Court granted the application. Pursuant to that appeal, this Court vacated the visitation order because it did not contain the court’s specific findings of fact, as required by OCGA § 19-7-3 (c). See Van Leuvan v. Carlisle, 322 Ga. App. 576, 578 (1) (745 SE2d 814) (2013). This Court remanded the case back to the trial court with directions to issue an order that complied with OCGA § 19-7-3 (c). Id.

While the appeal from the visitation order was pending, the mother notified the grandmother that she had designated the week beginning August 13, 2012, for the grandmother’s seven uninterrupted days of “summer” visitation, as required by the order. The grandmother immediately filed an objection to this designation of dates, however, because the child’s school year was scheduled to begin before then, so she would be attending school throughout that week. The trial court, however, did not rule on the objection prior to August 13, the date the designated week of visitation was to begin.

On August 13, the mother’s attorney, Singleton, sent a letter to the grandmother’s attorney stating that the mother had just learned that the grandmother intended to pick up the child from school each afternoon that week and to keep her overnight, pursuant to the mother’s designation of dates. Singleton’s letter stated that, based upon the grandmother’s objection to the dates and the absence of either a court order ruling on the objection or any communication between the parties’ attorneys regarding visitation dates while the mother’s appeal from the visitation order was pending, “there does not appear to be a legal basis for [the child’s] school to release [her] into [the grandmother’s] custody.” Singleton also stated that the mother was going to pick up the child from school each day of that week, as she was entitled to do pursuant to the parenting plan executed by her and the child’s father. In other words, the letter notified the grandmother that she would not be allowed to exercise her seven days of uninterrupted summer visitation with the child that week after all. In response, the grandmother’s attorney notified Singleton that he was going to file a contempt petition against the mother due to her actions, which, according to the letter, “defy a polite description.”

The grandmother, however, was apparently not aware of the attorneys’ communications when she went to the child’s school to pick her up for visitation on the afternoon of August 13. At that time, school officials told her that the school’s policies did not allow it to release the child to her because she was not the child’s parent. It is undisputed that the mother had spoken with school officials earlier that day and had given them copies of certain documents, including the visitation order, her designation of dates for summer visitation, and the grandmother’s objection to such dates.

The next afternoon, August 14, the grandmother again went to the child’s school to pick her up for visitation. She was unable to do so, however, because, unbeknownst to the grandmother, the mother had gone to the school and had picked up the child before the end of the school day. School officials again informed the grandmother that the school would not release the child to her, and, in support of such refusal, they showed her a copy of a letter written by Singleton that the school had received. They also showed the grandmother a copy of an e-mail the school had received from its Executive Director. The August 14 e-mail stated, in relevant part, that the Executive Director had been

made aware of the various letters, emails, phone calls, and other correspondence over the past few days with staff at the elementary campus where [the child] is a student. To be honest, the sheer volume and types of communication about who is able to pick up [the child] from school is overwhelming and confusing and places [the child] and our school staff in a potentially uncomfortable situation. Clearly, no matter what the school does, one party will be angry and upset. Though there are various legal points being made in all of the correspondence we have received, there does not appear to be clearly established visitation with [the child’s] grandmother for this week, so, our position would be that [the child’s] mother and/or father can pick [the child] up from school until another court order clearly states otherwise.

(Emphasis supplied.) Given these circumstances, the grandmother decided not to make any further attempts to exercise her summer visitation that week.

A few days later, however, the grandmother’s attorney sent a letter to Singleton stating that the grandmother had selected August 23 as the date she wanted to exercise her monthly, Thursday overnight visitation (hereinafter, “monthly visitation”), pursuant to paragraph 2 of the visitation order. Singleton responded with a two-sentence letter, stating that paragraph 2 of the visitation order “does not appear to grant [the grandmother] the rights referenced in your letter.” The grandmother’s attorney immediately responded with a letter that threatened to file a second petition for civil and criminal contempt and OCGA § 9-15-14 attorney fees if the grandmother was not allowed to exercise her monthly visitation, and it stated, in part, as follows:

If you are referring to the clear typo [in paragraph 2 of the visitation order] that references “Respondent” rather than “Petitioner” having the right to have the child, would that mean that [the trial court] changed custody from [the mother] to the child’s father? This would be as preposterous as the position you and your client seem to be now taking.... [B]y the clear terms and intent of the [Visitation] Order, [the grandmother] gets to have [the child] with her tomorrow [(Thursday, August 23)] until Friday morning.

(Emphasis supplied.) On August 23, Singleton responded that,

with respect to seeking contempt against [the mother], your letter characterizes the language in paragraph 2 of the [Visitation] Order as a “typo.” [The mother], however, is “entitled to rely on the plain terms of a court order until such provisions are modified by the court.” [Cit.] Thus, there does not appear to be a legal basis for filing [a] contempt motion.

That same day, the grandmother went to the school to pick up her granddaughter, but school officials refused to release the child to her. They showed her a copy of Singleton’s August 23 letter (above) that they had received and informed her that, because of the apparent error in the visitation order regarding the term “respondent,” the school would not release the child to her until the order was corrected.

Following this incident, the grandmother filed a second motion asking the court to find the mother in contempt of the visitation order and to award her attorney fees associated with bringing the motion against the mother, Singleton or both, pursuant to OCGA § 9-15-14 (a) and/or (b). During the contempt hearing, Singleton defended the mother’s designation of the week of August 13 for the grandmother’s week of summer visitation — despite the fact that the child would be in school that entire week — by arguing that the visitation order said “nothing about [allowing the visitation during] the summer or restricting it to summer vacation.” As shown above, however, the order specifically stated that the grandmother shall have seven “uninterrupted” days of visitation “during the summer months of June, July, or August,” and it followed that provision with a separate provision about the monthly overnight visits that began, “During the school year, August through May . . . .” (Emphasis supplied.)

Further, Singleton asserted that the mother “didn’t interfere” with the grandmother’s visitation on August 14, stating that, when the grandmother arrived at the school that afternoon to pick up the child, “my client was not present.” The undisputed evidence shows, however, that the mother was not present because she intentionally picked up the child before the end of that school day and took her home. And, despite having designated the week of August 13 for the grandmother’s week-long “summer” visitation, and despite being notified that the grandmother intended to exercise that visitation, the mother continued to assert that the grandmother did not have the right to visitation that week and, as a result, she intentionally did not notify the school that the grandmother had permission to pick up the child from school.

On the issue of why the grandmother was denied the right to pick up the child from school on August 23 for her monthly visitation, the mother testified that, because paragraph 2 of the visitation order referred to the “respondent” instead of the “petitioner,” and because she was the “respondent” in the visitation action, it “seem[ed] pretty clear” that the order did not give the grandmother visitation once a month on a Thursday night. When asked if it was true that the use of the term “respondent” was clearly a typographical error, especially when considered in the context of the entire order, she answered that the order “reads what it reads” and, as a result, she believed that it did not give the grandmother Thursday overnight visitation.

Further, Singleton argued that the mother “was not present” at the school when the grandmother arrived on August 23; that, instead, it was the school that refused to release the child to her; and that the school had made “its own decision [on that issue] . . . independently of [the mother].” It is undisputed, however, that the mother provided school officials with the documents that allegedly supported her claim that the visitation order did not grant the grandmother monthly visitation rights. In addition, despite being told by school officials that they could not release the child to the grandmother because it was unclear whether the visitation order authorized it, the mother never notified the school that the order contained an obvious typographical error, nor did she (as the child’s parent) ever authorize the school to allow the grandmother to pick up the child from school for visitation.

In response to the mother’s hearing testimony about what she believed the visitation order allowed, the court stated that it found such testimony to be completely incredible. Further, the court characterized Singleton’s numerous objections as “ridiculous,” “inappropriate” and “unprofessional,” and stated that the legal position he expressed about the language of the visitation order was “absolutely frivolous.” In fact, the court specifically stated that, “I don’t think that there is any reasonable interpretation that you could take of that [visitation] order other than . . . the fact that this was a complete clerical error [.] .. . [The error] was completely obvious on the face of the document.” Subsequently, in its written order finding the mother in civil contempt and awarding attorney fees to the grandmother, the court ruled, in relevant part, as follows:

The Court finds that Respondent [(the mother)] selected the dates of the summer visitation to occur from August 13-19, 2012[.] . .. Petitioner [(the grandmother)] attempted to exercise the visitation [with the child] during the week of August 13, 2012. The Court finds that Respondent willfully prevented Petitioner from exercising this visitation.
The Court further finds that Petitioner attempted to have visitation with the child on Thursday, August 23,2012, but Respondent refused this visitation due to a typographical error in the Temporary Order, which provided that Respondent, rather than Petitioner, should have the child for one (1) Thursday night. The Court also finds that counsel for Petitioner attempted, in good faith, to resolve the obvious typographical error. The Court finds that Respondent’s claim that Petitioner should not be afforded the Thursday night visitation because of this typographical error is without merit and was made in bad faith. The Court also finds that Respondent’s counsel unnecessarily expanded this litigation; asserted a defense with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the defense; defended the action in a manner that lacked substantial justification; and defended the action in a manner that was interposed for delay. . . .
Based upon the foregoing, the Court finds Respondent in willful civil contempt of this Court’s Temporary Order by not allowing Petitioner to have the visitation with her granddaughter, as set forth in the Temporary Order. . . .
[T]he Court hereby awards Petitioner the sum of $6,500.00 as attorney’s fees and expenses of litigation for having to prosecute her two (2) Motions for Civil and Criminal Contempt. The Court assesses these attorney’s fees and expenses of litigation pursuant to OCGA § 9-15-14 (a) and (b) against both Respondent and her counsel. Respondent shall pay one-half (1/2) of said sum directly to Petitioner’s counsel, via certified funds, on or before October 26, 2012, and Respondent’s counsel shall pay one-half (1/2) of said sum directly to Petitioner’s counsel on or before October 26, 2012.

(Emphasis supplied.) Both the mother and Singleton appeal from this order.

1. Before reaching the merits of the instant appeal, we must address the issue of whether the trial court was authorized to find the mother in contempt of the visitation order given the fact that this Court subsequently vacated the order on appeal and remanded the case to the trial court with direction to issue a new order that included findings of fact, as required by OCGA § 19-7-3 (c).

“[I]f the trial court has jurisdiction to make [an] order, it must be obeyed however wrong it may be. [It follows that the] disobedience of an unsuperseded order within the jurisdiction of a court is a contempt of court, even [if] the order is erroneous.” (Punctuation and footnotes omitted.) Stearns v. Williams-Murphy, 263 Ga. App. 239, 245 (4) (587 SE2d 247) (2003). See Powell v. State, 166 Ga. App. 780, 781 (1), (2) (305 SE2d 646) (1983) (Although the trial court failed to include required findings of fact in its written paternity order, it was authorized to find that the appellant’s willful violation of the order constituted contempt of court.).

Accordingly, we conclude that the visitation order was enforceable at the time the mother violated its provisions and that, as a result, the trial court was authorized to find the mother in contempt of the order.

Case No. A13A0784

2. The mother contends that there was insufficient evidence presented to support the court’s finding that she was in willful civil contempt of the visitation order. We disagree.

(a) As an initial matter, contrary to the mother’s repeated assertions in her appellate brief that the trial court failed to designate whether it was finding her in civil or criminal contempt, the court’s order specifically states that it found her to be in “willful civil contempt” of the visitation order by not allowing the grandmother to have visitation with the child pursuant to that order. (Emphasis supplied.) The court also expressly provided that the mother could purge herself of contempt by ensuring that the grandmother had visitation with the child on specific dates from October 2012 through January 2013, in addition to the visitation she was awarded in the visitation order. Accordingly, the order shows on its face that the court found the mother to be in willful civil contempt. See Stewart v. Tricord, 296 Ga. App. 834, 837 (2) (a) (676 SE2d 229) (2009) (“A criminal contempt citation imposes unconditional punishment for prior contempt, to preserve the court’s authority and to punish disobedience of its orders. . . . Civil contempt, on the other hand, is conditional punishment intended to coerce the contemnor to comply with the court order.”) (citation and punctuation omitted).

(b) “The appropriate standard of proof in a civil contempt case is preponderance of the evidence.” (Citation omitted.) In re Harvey, 219 Ga.App. 76, 80 (464 SE2d 34) (1995). On appeal from an order finding a party in civil contempt, “if there is any evidence from which the trial court could have concluded that its order had been violated, [this Court is] without power to disturb the judgment absent an abuse of discretion.” (Citation and punctuation omitted.) Carden v. Carden, 276 Ga. App. 43, 44 (622 SE2d 389) (2005).

We find that the undisputed evidence in this case, as set out above, is more than sufficient to support the trial court’s conclusion that the mother willfully violated the visitation order by preventing the grandmother from exercising her visitation rights pursuant to that order. Accordingly, we find that the court did not abuse its discretion in ruling that the mother was in willful civil contempt.

Case Nos. A13A0783 andA13A0784

In these appeals, the mother and her attorney, Singleton (collectively, “the appellants”), challenge the court’s award of attorney fees to the grandmother, pursuant to OCGA § 9-15-14 (a) and (b).

3. The appellants contend that the court erred in awarding attorneyfees under OCGA § 9-15-14 (a), arguingthatthe only defenses they asserted in the contempt action raised justiciable issues of law and fact and that there was evidence to support those defenses. The record, however, does not support this argument.

OCGA § 9-15-14 (a) provides as follows:

In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Attorney’s fees and expenses so awarded shall be assessed against the party asserting such claim, defense, or other position, or against that party’s attorney, or against both in such manner as is just.

“OCGA § 9-15-14 (a) therefore provides for a mandatory award upon a finding of the absence of any justiciable issue of law or fact.” (Citation omitted.) Haney v. Camp, 320 Ga. App. Ill, 114 (2) (739 SE2d 399) (2013). Moreover, “[t]his Court will affirm a lower court ruling made pursuant to OCGA § 9-15-14 (a) if there is ‘any evidence’ to support it.” (Citation omitted.) Brewer v. Paulk, 296 Ga. App. 26, 29 (1) (673 SE2d 545) (2009).

The undisputed evidence in the record supports the court’s finding that, in order to justify the denial of monthly overnight visitation rights to the grandmother, the appellants solely and consistently relied on the fact that paragraph 2 of the visitation order referred to “Respondent” instead of “Petitioner.” The trial court was authorized to conclude that this misnomer constituted an obvious typographical error, that both appellants knew it was an error, and that their claims to the contrary lacked merit and were made in bad faith. Thus, to the extent the appellants argue that the court erred in finding that they improperly defended the contempt action based on the typographical error in the visitation order, we find this assertion to be disingenuous and completely without merit.

Moreover, if the appellants are trying to convince this Court that they reasonably believed that the visitation order did not contain a typographical error, then they are essentially arguing that the paragraph at issue reflected the actual intent of the trial court to give the mother, with whom the child resided, monthly overnight visitation in addition to her actual physical custody of the child. Such an assertion is patently illogical and preposterous.

Consequently, the trial court did not err in awarding the grandmother attorney fees pursuant to OCGA § 9-15-14 (a).

4. The appellants also contend that the court erred in awarding attorney fees under OCGA § 9-15-14 (b), again arguing that they did not rely on the typographical error as a defense to the contempt motion or engage in other conduct triggering liability under that statute. OCGA § 9-15-14 (b) provides as follows:

The court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct [.] ... As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

“[A]n award under OCGA § 9-15-14 (b) involves consideration of the conduct of the party against whom an award is sought, and the conduct of that party’s counsel along with the impact of that conduct on the attorney fees incurred by the opposing party.” (Citation and punctuation omitted.) Citizens for Ethics in Govt. v. Atlanta Dev. Auth., 303 Ga. App. 724, 736 (3) (694 SE2d 680) (2010). Finally, “[b]ecause an award of attorney fees and expenses of litigation is discretionary under subsection (b), the standard of review by an appellate court is whether the trial court abused its discretion in making the award.” (Punctuation and footnote omitted.) MacDonald v. Harris, 266 Ga. App. 287, 288 (597 SE2d 125) (2004). See Stewart v. Tricord, 296 Ga. App. at 836 (1) (“An award under OCGA § 9-15-14 (b) is entirely within the discretion of the trial court after considering all the facts and law.”) (citations and punctuation omitted).

Given the evidence presented and our ruling in Division 3, supra, we find that the trial court did not abuse its discretion in awarding the grandmother attorney fees pursuant to OCGA § 9-15-14 (b).

5. The appellants contend that there was no evidence presented to support the court’s award in the amount of $6,500, arguing that they objected to the grandmother’s attorney’s statements regarding the amount of attorney fees that the grandmother had incurred as a consequence of having to file and prosecute the motion for contempt.

“Attorneys are officers of the court and their statements in their place, if not objected to, serve the same function as evidence.” (Punctuation and footnote omitted.) In re Estate of Bell, 274 Ga. App. 581, 583 (618 SE2d 194) (2005). See Rank v. Rank, 287 Ga. 147, 149 (2) (695 SE2d 13) (2010) (“In the absence of an objection, counsel’s evidentiary proffers to the trial court during a hearing will be treated on appeal as the equivalent of evidence.”) (citations omitted); Sams v. State, 197 Ga. App. 201, 204 (5) (397 SE2d 751) (1990) (“An officer of the court may make a statement in his place which is taken to be prima facie true unless verification of such statement is required by the opposing party at the time the statement is made.”) (citation and punctuation omitted; emphasis in original). Contrary to the appellants’ assertions in their appellate briefs, the record shows that neither objected to the statements of the grandmother’s counsel regarding the amount of attorney fees at issue. See Rank v. Rank, 287 Ga. at 149 (2) (“A party cannot ignore during trial that which he or she thinks to be error, take a chance on a favorable outcome, and complain later.”) (citation and punctuation omitted). Consequently, the trial court did not err in considering the grandmother’s attorney’s statements in his place regarding the amount of attorney fees the grandmother had incurred. See id.; In re Estate of Bell, 274 Ga. App. at 584. As a result, the appellants’ contention that there was no evidence to support the amount of attorney fees awarded is without merit.

6. The appellants argue that the court erred by failing to assess the reasonableness of the requested attorney fees. Pretermitting whether this argument is supported by the record, however, the appellants waived this issue on appeal by failing to raise it in the court below. It is axiomatic that, on appeal, “only issues properly raised before the trial court will be considered. Where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court.” (Citations and punctuation omitted.) City of Dalton v. Smith, 210 Ga. App. 858, 859 (1) (437 SE2d 827) (1993).

7. The appellants contend that the court erred in awarding fees directly to the grandmother’s counsel instead of to the grandmother.

[A]ny award of fees or expenses under OCGA § 9-15-14 (a) “shall be awarded to any party” and not directly to the attorney for the party. The court may, of course, specify the amounts due to each attorney or law firm, but the award itself, as specified in the statute, is for the benefit of the party litigant.

(Citations and emphasis omitted.) Brewer v. Paulk, 296 Ga. App. at 31 (2).

Pretermitting whether the appellants waived this issue on appeal by failing to raise it in the court below, the court’s order specifically states that it awarded the grandmother attorney fees and expenses for having to prosecute her two motions for contempt. The fact that the court then ordered each of the appellants to send their portions of the attorney fees to the grandmother’s counsel does not undermine the fact that the court awarded the fees to a party, i.e., the grandmother, as required by OCGA § 9-15-14 (a). It follows that there was no error.

8. The grandmother’s motion to dismiss Singleton’s appeal, Case No. A13A0783, on jurisdictional grounds is denied.

9. Finally, this Court finds that the appellants’ arguments on appeal completely lacked merit and, thus, we deem these appeals to be frivolous. Consequently, we sua sponte impose a penalty of $1,000 against each of the appellants personally, i.e., Singleton in Case No. A13A0783 and Van Leu van in Case No. A13A0784, pursuant to Court of Appeals Rule 15.

Decided July 2, 2013

Reconsideration denied July 25, 2013

Sutherland, Allegra J. Lawrence-Hardy, Jeffrey J. Toney, Kilpatrick, Townsend & Stockton, Stephen E. Hudson, for Singleton.

Kasowitz, Benson, Torres & Friedman, Jeffrey J. Toney, for Van Leuvan.

Davis, Matthews & Quigley, David N. Marple, Richard W. Schiffman, Jr., for Carlisle.

Judgments affirmed.

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

       As explained below, the trial court subsequently found that the two references to “Respondent” in paragraph 2 of the order were typographical errors and that the paragraph should have referred to the “Petitioner,” that is, the grandmother.

       As shown above, that paragraph stated as follows:
      2. During the school year, August through May, Respondent [to the visitation petition, i.e., the mother,] shall have one (1) Thursday night with [the child] per month. The designated Thursday night shall correspond with [the child’s] visitation with her father... that is to begin the following Friday. Respondent shall pick [the child] up from school on the designated Thursday and return [the child] to school the following Friday morning.
      (Emphasis supplied.)

       In addition, in her report, the GAL recommended that the court give the grandmother “14 consecutive days of summer vacation” with the child, “uninterrupted by time with [the mother].” (Emphasis supplied.)

       Notably, in her written report, the GAL specifically recommended that the child have overnight visitation with her grandmother “one Thursday per month . .. from after school on Thursday until [the child’s] return to school on Friday morning.”

       See also Beckham v. O'Brien, 176 Ga. App. 518, 521 (336 SE2d 375) (1985) (Aperson may not simply ignore a court order that he believes is erroneous. “[I]f he does so, he does so at his own peril and must assume the risk of being held in contempt.”) (citations omitted).

       Although the mother, in her appellate brief, purports to quote that sentence from the court’s contempt order, she inexplicably and erroneously omits the word “civil,” then presents six pages of argument on the standards that apply to a finding of criminal contempt, standards which are clearly inapplicable to the instant case.

       “The damages authorized by [OCGA] § 9-15-14 are intended not merely to punish or deter litigation abuses but also to recompense litigants who are forced to expend their resources in contending with abusive litigation.” (Citation and punctuation omitted.) Abt v. Abt, 289 Ga. 166, 167 (709 SE2d 806) (2011).

       Instead, the contempt hearing transcript shows that Singleton objected to the opposing attorney’s statement that he (Singleton) had “notified the school [on August 13] and he got involved with the school saying, don’t you dare let this child go home with her grandmother because the mother has primary custody and, by gosh, this isn’t going to happen.” Singleton objected and moved to strike that “commentary” from the record, arguing that there had been no evidence presented to support it.

       See City of Dalton v. Smith, 210 Ga. App. at 859 (1).

       Court of Appeals Rule 15 (b) states as follows:
      The panel of the Court ruling on a case, with or without motion, may by majority vote impose a penalty not to exceed $2,500.00 against any party and/or party’s counsel in any civil case in which there is a direct appeal, application for discretionary appeal, application for interlocutory appeal, or motion which is determined to be frivolous.
      See also Court of Appeals Rule 15 (c) (“The imposition of such penalty shall constitute a money judgment, in favor of appellee against appellant. . . . Upon filing of the remittitur in the trial court, the penalty may be collected as are other money judgments.”).


author: McFadden, Judge.

text:
    A13A0547.
    McGRAW v. IDS PROPERTY & CASUALTY INSURANCE COMPANY.
    (744 SE2d 891)
   McFadden, Judge.

This appeal concerns the amount of uninsured/underinsured (UM) coverage available under a vehicle liability insurance policy that IDS Property & Casualty Insurance Company issued to Tommy E. McGraw. Because the undisputed evidence does not demonstrate that McGraw affirmatively chose an amount of UM coverage less than the statutory default amount, the trial court erred in finding that the policy provided UM coverage in the lesser amount. Accordingly, we reverse both the trial court’s grant of summary judgment to IDS and its denial of partial summary judgment to McGraw on the issue of the amount of UM coverage in the policy.

Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant. Congress Street Properties v. Garibaldi’s, 314 Ga. App. 143, 145 (723 SE2d 463) (2012).

The relevant evidence in this case is undisputed. In February 2007, IDS issued a vehicle liability policy to McGraw. Although McGraw signed the application for the policy and was the named insured thereon, he delegated all decision-making responsibility regarding the policy to his wife and personally made no choices regarding the policy’s terms. The application that McGraw signed did not refer to UM coverage in any respect. The declarations page of the February 2007 policy reflected, inter alia, $100,000 per person in bodily injury liability coverage and $50,000 per person in UM coverage. IDS issued superseding policies to McGraw every six months, in each instance with a declarations page reflecting the same per person bodily injury liability and UM coverage amounts as the declarations page of the February 2007 policy.

In December 2008, IDS sent McGraw a letter stating that his UM coverage had been revised to reflect a change in Georgia law. The letter asked McGraw to complete a “renewal declaration page” to “readjust [his] UM coverage to more specifically meet [his] needs.” An enclosed election form offered McGraw a choice of “UM Added-on to At-Fault Liability Limits” or “UM Reduced-by At-Fault Liability Limits,” instructed him to indicate the coverage limits he wanted with his selection, and gave him the option to reject UM coverage entirely. The form also stated: “If you do not complete and return this form, we will continue to apply UM Added-on coverage to the current limit shown on your renewal declaration page.”

On June 12, 2009, McGraw and his wife were injured in a vehicular accident, and his wife later died of her injuries. McGraw brought an action for damages against the driver of the other vehicle, among others, on behalf of both himself and his wife’s estate, and he served the action on IDS as an unnamed UM insurer. IDS answered the complaint in its own name, thereby becoming a party to the action. See Thompson v. Allstate Ins. Co., 285 Ga. 24, 25 (673 SE2d 227) (2009). IDS also counterclaimed for a declaratory judgment that its UM liability was limited to $50,000.

McGraw moved for partial summary judgment against IDS on the ground that, under OCGA § 33-7-11, he was entitled to UM coverage in an amount equal to the bodily injury liability coverage specified on his policy declarations page ($100,000), because he did not affirmatively choose a lesser amount of UM coverage. IDS opposed McGraw’s motion and moved for summary judgment on the ground that McGraw was entitled only to the UM coverage specified on the declarations page ($50,000) because he did not request a higher amount on renewal. The trial court denied McGraw’s motion and granted IDS’s motion, finding that the policy provided only $50,000 in UM coverage.

Pertinently, OCGA § 33-7-11 (a) (1) “requires insurance policies issued in Georgia to contain provisions for UM coverage which at the option of the insured shall be (i) not less than $25,000 per person, or (ii) equal to the policy’s bodily injury liability insurance coverage, if higher than $25,000 per person.” Infinity Gen. Ins. Co. v. Litton, 308 Ga. App. 497, 499 (2) (707 SE2d 885) (2011) (citations omitted; emphasis supplied). It further provides that “[i]n any event, the insured may affirmatively choose [UM] limits in an amount less than the limits of liability [for bodily injury].” OCGA § 33-7-11 (a) (1) (B) (emphasis supplied). “This Code section was intended to make a policy’s liability limits the default provision for UM coverage, unless an insured affirmatively elects UM coverage in a lesser amount.” Infinity Gen. Ins. Co., 308 Ga. App. at 499 (2) (citation omitted).

Accordingly, when a vehicle insurance policy limits UM coverage to an amount less than the policy’s bodily liability limits without the insured having affirmatively chosen that lesser amount, the policy is not in compliance with OCGA § 33-7-11 (a) (1). In such instance, the requirements of the statute control over the terms of the policy. See OCGA § 33-24-12 (a) (an otherwise valid insurance policy that contains a condition or provision not in compliance with the requirements of Title 33 “shall be construed and applied in accordance with such conditions and provisions as would have applied had the policy... been in full compliance with this title”); Dees v. Logan, 282 Ga. 815, 816 (653 SE2d 735) (2007) (“When an uninsured motorist policy provision is in conflict with the clear intent of OCGA § 33-7-11, the policy provision is unenforceable and the statute controls.”) (citation omitted). Cf. Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 714 (3) (300 SE2d 673) (1983) (stating, in regard to another provision of the insurance code, that “when an insurer issues a policy with provisions not in compliance with the law the contract will not be rendered void but the provisions of the statute will be grafted into the policy”).

On its face, McGraw’s policy with IDS provides for less UM coverage than the default amount that OCGA § 33-7-11 (a) (l)requires. The lesser amount shown on the policy’s declarations page may be enforced only if McGraw affirmatively chose it, as set forth in OCGA§ 33-7-11 (a) (1) (B); otherwise, the policy must be read to provide for UM coverage limits at the default amount, equal to the policy’s bodily injury liability coverage limits.

IDS correctly argues that it was not required to obtain in writing McGraw’s choice regarding the amount of his UM coverage. See Lambert v. Alfa Gen. Ins. Corp., 291 Ga. App. 57, 60 (660 SE2d 889) (2008) (unlike an insured’s rejection of any UM coverage, an insured’s affirmative choice of UM coverage in an amount less than liability coverage need not be made in writing). But the lack of a writing requirement does not absolve IDS of its burden of showing that McGraw did in fact make an affirmative choice of lesser coverage in support of its position that the term setting forth lesser coverage should be enforced instead of the statutory default coverage. See generally TranSouth Financial Corp. v. Rooks, 269 Ga. App. 321, 324 (1) (604 SE2d 562) (2004) (“One seeking to enforce a contract must bear the burden of proof as to all of the essential elements of the contract, including the assent to the contractual terms.”) (citation omitted). And there is a dearth of evidence pertaining to McGraw’s choice about UM coverage when IDS first issued him the policy in 2007. McGraw testified that he made no decisions at all regarding the policy, but delegated that task to his late wife. The record contains no documents pertaining to the February 2007 policy other than the application signed by McGraw (which does not mention UM coverage) and the policy itself. While the declarations page specifies UM coverage limits at the lesser amount, this cannot support an inference that either McGraw or his wife made an affirmative choice among the various UM coverage options available under OCGA § 33-7-11 (a) (1), because it raises merely a conjecture or possibility of that fact. See Morgan v. Braasch, 214 Ga. App. 82, 84 (2) (446 SE2d 746) (1994); see also John Hewell Trucking Co. v. Brock, 239 Ga. App. 862, 864 (522 SE2d 270) (1999) (“Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment”) (citation and punctuation omitted). Given that OCGA § 33-7-11 is remedial in nature and must be “broadly construed to accomplish the legislative purpose,” Wagner v. Nationwide Mut. Fire Ins. Co., 288 Ga. App. 132, 133 (653 SE2d 526) (2007), we are not persuaded by IDS’s argument that the inclusion of a facially-noncompliant provision in the policy, alone, is evidence of the affirmative choice required to bring that provision into compliance with the statute so as to avoid the statute’s default amount. Consequently, we construe the February 2007 policy to provide UM coverage in the higher amount equal to the policy’s bodily injury liability coverage, notwithstanding the specification of a lesser amount on the declarations page.

Because the February 2007 policy, by default, provided this higher amount of UM coverage, IDS could not “renew” that policy with a lesser amount of coverage. See OCGA § 33-24-45 (b) (2) (renewal must provide “no less than the coverage contained in the superseded policy”). The superseding policies, therefore, would also provide the higher default amount of UM coverage unless McGraw affirmatively chose the lesser amount. The amount of coverage specified on the declarations pages of those superseding policies does not demonstrate that McGraw made the required choice, as explained above. Likewise, the fact that McGraw failed to return the election form sent to him in December 2008 also does not show that he made an affirmative choice to receive UM coverage less than the statutory default amount; it merely reflects McGraw’s failure to act. Cf. Hopson v. Kennestone Hosp., 241 Ga. App. 829, 831 (526 SE2d 622) (1999) (psychiatric patient’s failure to oppose discovery requests for communications with psychiatrist was not an affirmative action waiving privileged nature of those communications).

Decided June 27, 2013

Reconsideration denied July 26, 2013

Charles M. Cork III, for appellant.

Eason, Kennedy & Crawford, Richard B. Eason, Jr., David S. Crawford, for appellee.

In summary, the undisputed evidence in this case does not show that McGraw made an affirmative choice for less UM coverage than the statutory default amount set forth in OCGA § 33-7-11 (a) (1) (B). Accordingly, the statutory default amount of coverage applied to the policy, and the trial court erred in construing the policy to provide a lesser amount of coverage. The court thus erred in granting summary judgment to IDS and denying partial summary judgment to McGraw.

Judgment reversed.

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


author: McFADDEN, Judge.

text:
    A13A0666.
    MILLER v. THE STATE.
    (744 SE2d 926)
   McFADDEN, Judge.

After a jury trial, Eric Miller was convicted of two counts of criminal attempt to commit theft by receiving stolen property. He appeals, challenging the sufficiency of the evidence and the admission of his confession. Because there is enough evidence from which the jury was authorized to find guilt beyond a reasonable doubt and the trial court did not clearly err in finding that the confession was voluntarily made, we affirm.

1. Sufficiency of the evidence.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Dixson v. State, 313 Ga. App. 379 (721 SE2d 555) (2011) (citations and punctuation omitted).

So viewed, the evidence shows that the Griffin Police Department received complaints from retail stores that merchandise was being stolen from them and then being “fenced through a pawn shop.” The police set up a sting operation with an informant who had previously shoplifted merchandise from stores and then sold it to pawn shops. The informant testified that on one prior occasion he had sold stolen merchandise to Miller, a pawn shop owner. A Home Depot store loaned new power drills to the police to use in the sting operation, during which the informant was to represent the drills as stolen to Miller.

On February 17, the informant went into Miller’s pawn shop with two of the new drills still in their original packaging. Miller asked the informant if the items were “clean,” and the informant responded that “it’s as clean as it gonna be.” The informant further told Miller, “[I]t ain’t hot, hot like that. It ain’t come out nobody’s house or nothing like that.” Miller purchased the two new drills, and created a pawn ticket for the transaction on which he failed to include the serial numbers of the items. As a pawn shop owner, Miller was required to list the items on a property tracking website used by police called leadsonline.com, and he again did not include the serial numbers of the drills on that listing. The next day, February 18, the informant returned to the store with two more drills. Miller again bought both drills from the informant, and he again failed to include the serial numbers for the items on either the pawn ticket or the leadsonline website. Miller also insisted that the informant take the new packaging of one of the drills out of the store when he left.

On March 3, 2011, the informant tried to sell more new drills to Miller, but Miller told him that the tools were not selling. Miller told the informant that he could instead bring in games, televisions and electronics, which were selling well. The informant then told Miller that he had somebody who worked at Wal-Mart who could help him get televisions out the door. Miller responded that was fine as long as he did not bring the televisions in their boxes.

Several weeks later, the police went to Miller’s pawn shop and told Miller that they were investigating the informant and wanted to recover the items that Miller had purchased from the informant. Miller told the police that he had been suspicious of the informant, but had no explanation for why he had taken the items from the informant if he was suspicious of him. Miller was later arrested, and during an interview with an officer he stated that he had made a mistake and “felt funny” about it when the informant had come back the second day.

At trial, the informant explained that to a pawn broker who deals in stolen goods, his comments to Miller about the items not being “hot, hot like that” and not coming out of someone’s house meant that he had stolen the goods from a store, but no one had seen him and the police were not looking for the stolen items. He testified:

Well, when you’re dealing with pawn shops, [not] hot, hot means that it didn’t come out of anybody’s house or you didn’t run out of the store with it. It means that they’re not out specifically looking for that item at that particular time. But it also means that it’s not legal, because hot, hot, that’s what it’s saying. It’s not hot, hot, you don’t have to worry about the police coming in looking for it at that particular time____[I]f it’s hot, hot, pawn shops are not going to deal it. You know, if it came out of someone’s house and they know that the item is hot at that particular time like that, no, they are not gonna deal with you because they know a week or two, the police will be here soon to check and see did anybody pawn that particular item or maybe have serial numbers for it or whatever.

A police investigator similarly testified that in pawn shop vernacular there are two degrees of “hotness” of stolen goods: one being something that “the police are not actively looking for” and the other being “hot, hot... that the police are in fact actively looking for it.” The officer also testified that in order to avoid buying shoplifted property, pawn shop owners, when presented with new items in their original packaging, typically will “turn these people away unless they have a receipt.”

“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1.

A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession ... of the property.

OCGA § 16-8-7 (a).

Miller argues that there is insufficient evidence to support his convictions for criminal attempt to commit theft by receiving stolen property because there was no direct evidence that he knew the drills were stolen. However, “[t]he evidence included facts and circumstances from which [his] knowledge that the [drills were presented to him as] stolen could have been inferred.” Bradley v. State, 317 Ga. App. 477, 479-480 (731 SE2d 371) (2012) (citation omitted). Such facts and circumstances included the informant telling Miller that the items were not “hot, hot,” Miller’s failure to put the serial numbers of the items on the pawn tickets or the property-tracking website, his instruction to the informant to remove the packaging of one of the new items from the store and his own admissions that he had been suspicious of the informant and “felt funny” about the transactions. Accordingly, “the evidence recited above, as well as other evidence presented at trial, was more than sufficient to show that [Miller] had the requisite knowledge. This enumeration thus provides no basis for reversal.” Toro v. State, 319 Ga. App. 39, 43 (1) (735 SE2d 80) (2012) (citation omitted).

2. Voluntariness of statement.

Miller claims that the trial court erred in admitting his custodial statement to police into evidence because it was induced by assurances of reduced charges or punishment. The claim is without merit.

A statement given by an accused to law enforcement is admissible against him only if the statement was voluntary, and in Georgia, that means that the statement must not have been induced by hope of benefit, among other things. See former OCGA § 24-3-50. As we have explained before, a hope of benefit arises from promises related to reduced criminal punishment •— a shorter sentence, lesser charges, or no charges at all.

Edenfield v. State, 293 Ga. 370, 373 (2) (744 SE2d 738) (2013) (citations and punctuation omitted).

Here, Miller points to comments made by the interrogating officer that he would ask the prosecuting attorney about various plea bargain possibilities concerning the charges and punishments imposed, including, at Miller’s request, possible dismissal of the charges in exchange for Miller closing his pawn shop. However, as the videotape of the interview and the officer’s testimony at the hearing to determine the voluntariness of the statement make clear, the officer plainly told Miller that he “didn’t have the authority to make deals with him in his case, that the DA’s office would have to make that decision, or the Judge, and that [the officer] would in fact call them and relay to them what [Miller’s] proposition was.”

Decided July 3, 2013

Reconsideration denied July 26, 2013

Josh W. Thacker, for appellant.

Newton & Howell, Griffin E. Howell III, for appellee.

As this court has held, “a hope of benefit may be dispelled by a statement that an officer has no influence over an accused’s possible punishment.” State v. Brown, 308 Ga. App. 480, 484 (1) (708 SE2d 63) (2011) (citations omitted). See also Preston v. State, 282 Ga. 210, 212 (2) (647 SE2d 260) (2007) (interrogating officer’s discussion of death penalty and life without parole and his statement that district attorney based charges brought on a recommendation from police did not amount to hope of benefit); Valentine v. State, 289 Ga. App. 60, 62 (2) (656 SE2d 208) (2007) (even assuming statements offered the hope of a lighter sentence, any hope of benefit was dispelled by officer’s statement that he had no influence over possible punishment); Stephens v. State, 164 Ga. App. 398, 399 (3) (297 SE2d 90) (1982) (officer’s statement that judges love to hear that defendants helped the police did not constitute hope of benefit where officer also stated he could not promise any help). Accordingly, “ [t]he trial court’s finding that [Miller’s] statement was not the result of a hope of benefit given by the interrogating officer was not clearly erroneous and is consequently upheld.” Preston, supra.

Judgment affirmed.

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