text:
    A16A0009.
    HOUGHTON v. SACOR FINANCIAL, INC.
    (786 SE2d 903)
   PHIPPS, Presiding Judge.

Sacor Financial, Inc. sued Harry A. Houghton III, alleging that Houghton owed it monies stemming from unpaid credit card charges. Sacor filed a motion for summary judgment, which the trial court granted. In this appeal, Houghton contends that the trial court erred because, inter alia, there was evidence that suit was not timely commenced. We agree with Houghton that, given such evidence, summary judgment was not authorized. Therefore, we reverse.

Summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of lawf.]” “In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.”

On June 15, 2012, Sacor filed a two-paragraph complaint against Houghton, alleging therein that “Defendant is indebted to Plaintiff in the sum of $16,295.88 principal, plus interest, on an account.” More than a year later, Sacor filed an affidavit that service of process had been effected upon Houghton on September 10, 2013. Amongst the defenses raised by Houghton in his answer was that Sacor’s suit was time-barred.

In April 2015, Sacor filed a motion for summary judgment. In its supporting brief, Sacor expressly identified its cause of action as breach of contract, outlining its theory of liability as follows:

[Houghton] applied for and received a [Circuit City Rewards] credit card account from [Sacor’s] Assignor, Chase Bank USA, N.A. This credit card account was opened and activated for [Houghton’s] use and benefit and was designated as Account No. **9044. Upon receipt of the Circuit City Rewards credit card, [Houghton] proceeded to make charges on the account for an extended period of time. Pursuant to the underlying cardholder agreement, [Sacor’s] Assignor would send monthly statements to [Houghton] detailing the status and history of the account, as well as the balance owed at the end of each monthly billing cycle. Upon receipt of the statement, [Houghton] would be required to at least submit the minimum payment, which fluctuated depending on the balance owed and other factors. The credit extended by [Sacor’s] Assignor was done so with the express intent that [Houghton] would make at least the minimum payment due each month and that [Houghton] would eventually pay the debt in full. Despite [Sacor’s] Assignor’s policy concerning the minimum payment due at the end of each monthly billing cycle, [Houghton] failed to make these payments, constituting a material breach of the underlying cardholder agreement and rendering [Houghton] in material default of the contract. As a result of the default, [Houghton’s] account was formally declared in default and charged-off by the original creditor. At the time of the charge-off, [Houghton’s] entire balance in default became immediately due and payable. At the time of the charge-off, the unpaid balance in default on the credit card account was $16,295.88, please see [Sacor’s] Affidavit, of Claim and Exhibit “A” attachedthereto. [] Since the time of the charge-off, interest was accrued on this principal balance at the rate of 26% per annum, through the time of the filing of this Motion, in the amount of $15,985.95_ [Houghton’s] contract and account with Chase Bank USA, N.A. was validly and completely assigned to [Sacor], and [Sacor] has been assigned all rights, title, and interest to the contract. A true and correct copy of the Assignment charting the chain of title is attached to [Sacor’s] Affidavit of Claim as Exhibit “B,” filed herewith.

Sacor stated in its brief, “With this Motion for Summary Judgment, [Sacor] seeks the principal balance of $16,295.88 as damages, along with interest of $15,985.95 and court costs of $178.00.”

Opposing Sacor’s motion, Houghton advanced, inter alia, his statute of limitation defense. According to Houghton, Sacor’s breach of contract action was subject to either a four-year or a six-year statute of limitation; and even if the longer period applied, Houghton argued, Sacor’s own evidence authorized a finding that the action was untimely.

But three days after Houghton filed his response, the trial court entered an order drafted by Sacor’s counsel, summarily finding “no genuine issues of material fact,” thus granting Sacor’s motion, and thereby holding Houghton liable “for the principal sum of $16,295.88, interest of $15,985.95, and court costs of $178.00.”

1. Houghton contends that, in light of evidence that suit was time-barred, the trial court erred in granting Sacor’s motion.

(a) “The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” Citing Hill v. American Express, Sacor asserts that “[t]he statute of limitations in a credit card action is six (6) years.”

In Hill, American Express sued one of its cardholders to recover unpaid credit card charges. At issue there was whether such claim was subject to a four-year limitations period (set forth in OCGA § 9-3-25) or to a six-year limitations period (set forth in OCGA § 9-3-24). Determining that the claim was subject to the latter, Hill noted that “American Express has submitted a copy of the contract between the cardholder and the Bank”; Hill went on to explain, “In this case, there is a simple contract in writing. That the contract was agreed to [by the cardholder], not by signature, but by use of the card does not take it out of OCGA § 9-3-24.”

According to Sacor’s theory of liability, “[Houghton] applied for and received a [Circuit City Rewards] credit card account from [Sacor’s] Assignor, Chase Bank USA, N.A.” But Sacor has cited nothing in the record as the underlying written contract between Houghton and Chase Bank USA, N.A. — or any other bank. Even accepting arguendo Sacor’s apparent assertion that its breach of contract action is governed by OCGA § 9-3-24, we agree with Hough-ton that the evidence of record demonstrates that summary judgment was not proper.

Under “OCGA § 9-3-24, an action for breach of a written contract must be brought within six years of the breach.” Notably, Sacor did not allege any precise date when Houghton breached the underlying credit card contract he made with Chase Bank USA, N.A. Notwithstanding, as Sacor outlined in its theory of liability, it was Houghton’s failure to make payments as demanded in monthly billing statements that “constituted] a material breach of the underlying cardholder agreement and rendered] [Houghton] in material default of the contract.” As Houghton described in opposing Sacor’s motion, Sacor presented “a smattering of account statements” that demanded payments from Houghton — the most recent of which set forth a payment due date of May 5, 2006. To the extent that the record authorized a finding that Houghton did not make that payment, the record further authorized a finding that Houghton was then in breach of the underlying credit card contract. Sacor’s complaint was not filed, however, until June 2012. Given such evidence that Sacor’s breach of contract action was not commenced within six years of the breach, the trial court was not authorized to hold Houghton liable as a matter of law.

(b) Although Sacor advanced two arguments in an effort to preserve its favorable ruling, neither has merit.

(i) First, Sacor argues that it adduced evidence establishing that the applicable six-year period did not begin to run until April 4, 2012. Specifically, Sacor cites that after being assigned rights with respect to Houghton’s credit card contract, it sent Houghton a billing statement advising him that he owed to it $16,295.88 and that the full amount was due on April 4, 2012. Relying on other evidence that Houghton did not comply with its demand, Sacor posits, “the statute of limitation did not begin to run until, at the earliest, April 4, 2012,” and that its action was thereafter timely commenced.

Sacor’s argument disregards applicable law of assignments: “The assignee acquires all of the rights and remedies possessed by the assignor at the time of the assignment, and takes the obligation, contract, chose, or other thing assigned subject to the same restrictions, limitations, and defects as it had in the hands of the assignor.” Simply stated, “an assignee ‘stands in the shoes’ of the assignor and obtains no greater rights than the assignor possessed at the time of assignment.” Accordingly, Sacor did not obtain — by designating a later date for Houghton to pay it a certain amount — a new limitations period that would commence upon Houghton’s failure to comply.

Decided May 31, 2016.

(ii) Sacor next argues that it was entitled to prevail on its motion because Houghton presented neither an “affidavit [n]or any other evidence in support of [his] opposition to Sacor’s claim and Motion.”

This argument disregards applicable law of summary judgment: There is “no such thing as a default summary judgment.” Although Houghton did not file any responsive material, it did not “automatically follow that [Sacor’s] motion should be granted.” “A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail.” “Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” As explained above, the record reveals that summary judgment was not proper.

2. Given our reversal of the summary judgment, we need not reach Houghton’s remaining claims of error.

Judgment reversed.

Dillard and Peterson, JJ., concur.

Harry A. Houghton III, pro se.

Lazega & Johanson, Mark A. Moore, Jacob R. Davis, for appellee.

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted).

       The relied-upon documents included: (a) numerous monthly billing statements sent by “Chase Cardmember Service” to “Harry A. Houghton III” in connection with an account ending in “9044” for transactions at “Circuit City” stores—the most recent of which statements showed a “New Balance” of $3,624.27 and set forth a “[minimum] payment due date” of May 5, 2006; and (b) a single billing statement sent by Sacor to Houghton, which statement pertained to an account ending in “9044,” showed a “New Balance” of $16,295.88, and set forth a payment due date of April 4, 2012.

       (Emphasis supplied.) The relied-upon documents included: (a) a May 10, 2006 “Bill of Sale and Assignment of Assets,” from “Chase Bank USA, N.A. (Assignor)” to “National Credit Acceptance”; and(b) a November 15, 2010 “Bill of Sale” of certain “loans” from “National Credit Acceptance, Inc.” to Sacor.

       See generally OCGA §§ 9-3-24 (providing in pertinent part, “All actions upon simple contracts in writing shall be brought within six years after the same become due and payable.”); 9-3-25 (providing in pertinent part, “All actions upon open account, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied promise or undertaking shall be brought within four years after the right of action accrues.”).

        Norton v. Budget Rent A Car System, 307 Ga. App. 501, 502 (705 SE2d 305) (2010) (punctuation and footnote omitted).

       289 Ga.App. 576, 577 (1) (657 SE2d547) (2008) (determining that an action to recover for unpaid credit card charges was governed by OCGA § 9-3-24).

       Supra.

       Id. at 576.

       Id. at 576-577.

       Id. at 577 (2), n. 2.

       Id. at 578 (2).

        Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 384 (1) (649 SE2d 779) (2007).

       See footnote 3 (a), supra, and accompanying text.

       We will not speculate that Houghton was thereafter sent any such monthly billing statement with which he failed to comply (such that “breach” may have occurred at some later date). “[S]peculation which raises merely a conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment.” Emory Univ. v. Smith, 260 Ga. App. 900, 902, n. 7 (581 SE2d 405) (2003) (punctuation omitted). What is more, Sacor presented evidence that five days after the (May 5, 2006) due date set forth in the most recent billing statement, Chase Bank USA, N.A. entered into a “Bill of Sale andAssignment of Assets” (on May 10, 2006). See footnotes 3 (a) and 4, supra, and accompanying text.

       See OCGA § 9-11-56 (c); Owen v. Mobley Constr. Co., 171 Ga.App. 462 (1) (320 SE2d 255) (1984) (“[T]he statute of limitations runs from the time the contract is broken and not at the time the actual damage results or is ascertained.”) (citation and punctuation omitted).

       See footnote 4, supra, and accompanying text.

       See footnote 3 (b), supra, and accompanying text.

        Southern Telecom v. TW Telecom of Ga., LP, 321 Ga. App. 110, 114 (3) (741 SE2d 234) (2013) (citation omitted; emphasis supplied).

       Id. (citations omitted).

       See Pridgen v. Auto-Owners Ins. Co., 204 Ga. App. 322, 323 (419 SE2d 99) (1992) (“[I]t is well-established that an assignee has no more rights under the contract than the assignor would have in dealings with the other contracting party and that an assignee takes the assignment subject to defenses against the assignor!.]”) (citations and punctuation omitted).

        Smith v. Atlantic Mut. Cos., 283 Ga. App. 349, 351 (1) (641 SE2d 586) (2007) (citationand punctuation omitted).

        Sherman v. Thomas-Lane American Legion Post 597, 330 Ga. App. 618, 621 (1) (768 SE2d 797) (2015) (punctuation omitted); see Smith v. Lockridge, 288 Ga. 180, 186 (4) (702 SE2d 858) (2010) (“OCGA § 9-11-56 (e) provides that in the face of a properly supported motion for summary judgment, ‘an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial.’ ”) (emphasis supplied).

        Sherman, supra (citation and punctuation omitted); see Hall v. Massally, 329 Ga. App. 136, 138 (1) (764 SE2d 161) (2014) (“The failure of a nonmoving party to file responsive material . . . does not automatically entitle the moving party to judgment for there is no such thing as a default summary judgment. To affirm a grant of summary judgment, it must affirmatively appear from the record that no question of material fact exists and the moving party is entitled to judgment as a matter of law.”) (citations and punctuation omitted).

         Cowart, supra at 624 (1) (a) (citations omitted).

       See Division 1 (a), supra.

       Supra.

       See generally Caraway v. Spillers, 332 Ga. App. 588, 590 (774 SE2d 162) (2015) (“Because we reverse [the grant of summary judgment], we need not reach other arguments raised by [the appellants/non-movants below].”).


source: Caselaw Access Project

author: Peterson, Judge.

license: Public Domain

text:
    A16A0201.
    HENRY COUNTY BOARD OF EDUCATION v. S. G.
    (786 SE2d 907)
   Peterson, Judge.

Following a hearing, the Henry County Board of Education (the “Local Board”) expelled S. G. from a county high school for fighting on school grounds in violation of the student handbook. The State Board of Education (the “State Board”) affirmed the Local Board’s ruling, but the superior court reversed, finding that S. G. was justified in using force because she acted in self-defense. We granted the Local Board’s application for discretionary review, and on appeal, the Local Board argues that the superior court failed to apply the proper standard of review and erred by substituting its judgment for that of the Local Board. We affirm the superior court’s ruling because the Local Board abused its discretion by failing properly to apply self-defense standards when expelling S. G. for fighting on school grounds.

On appeal from the superior court’s review of a local board’s student disciplinary action, we must view the record in the light most favorable to the Local Board’s decision. See C. P. R. v. Henry County Bd. of Educ., 329 Ga. App. 57, 59 (763 SE2d 725) (2014). So viewed, the record shows that S. G. was a student at Locust Grove High School, where her mother was an employee. At the end of a school day in January 2014, S. G. went to her mother’s vehicle and, as she was walking back toward the school, she and another student had a verbal confrontation. A video recording shows the other student following S. G. until S. G. stopped at a brick pillar near the building’s entry S. G. and the other student continued to argue. The other student briefly stepped toward S. G. and came very close to touching S. G. before stepping back. S. G. then punched the other student, grabbed the student, and took the student to the ground. Once on the ground, S. G. sat astride the student and punched her until S. G. was pulled off by her mother. The other student then got off the ground and again moved toward S. G.; S. G. again threw the student to the ground, sat on top of her, and remained over her for more than 15 seconds before being pulled off a final time. Following the fight, the School Resource Officer (SRO) charged S. G. with an unspecified misdemeanor.

A hearing officer subsequently held a disciplinary hearing. At the hearing, S. G. testified to events that transpired before those captured in the video recording. S. G. testified that the other student had taunted her and yelled, “Let’s fight now.” S. G. testified that she walked away, at which point the other student continued to yell at her and followed her, as displayed in the video recording. A school secretary who witnessed the fight testified that she believed the other student was the aggressor, because the other student followed S. G. and made comments like “If you want to do something, do it now,” or “We’ll do it now.” Based on viewing a video recording of the fight, the hearing officer decided to expel S. G. for being involved in a fight on school grounds.

S. G. appealed to the Local Board, arguing that the other student was the aggressor and S. G. acted in self-defense. The Local Board adopted the hearing officer’s findings, the entirety of which are as follows:

[S. G.] was involved in a fight on school grounds. The other female moved towards [S. G.] and [S. G.] hit the girl and the fight ensued. [S. G.] threw the other student to the ground and began hitting her in the face numerous times. The fight was broken up and the other female walked toward [S. G.] and the fight continued. The other student received a busted lip and blood on her face. The SRO charged [S. G.] with a misdemeanor under Georgia law. Based on S. G.’s involvement in the fight, the Local Board concluded that S. G. committed two “Section 2 Offenses” from the Secondary Student Handbook — for physically abusing others and for violations that constitute a misdemeanor. The Local Board expelled S. G. from her high school and allowed her to attend an alternative school.

The State Board affirmed the Local Board’s decision, finding that the video recording and other record evidence supported the Local Board’s decision that S. G. did not act in self-defense because, although she had the opportunity to retreat, she stopped at the pillar and threw the first punch. S. G. then sought review in the superior court.

Following a hearing, the superior court concluded that the State Board misapplied the law regarding self-defense by requiring S. G. to show that she had no ability to retreat before using force. The superior court concluded that S. G.’s actions were justified because the other student lunged at S. G. before S. G. responded with force. This appeal followed.

On appeal, the Local Board argues that the superior court erred by substituting its judgment for that of the Local Board in resolving S. G.’s claim of self-defense and by failing to apply the “any evidence” standard in reviewing the Local Board’s decision.

In reviewing the disciplinary decisions of the Local Board, we apply the “any evidence” standard of review. See C.P.R., 329 Ga. App. at 62 (1). Under this standard, we accept factual findings unless they are clearly erroneous. See Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012); Patel v. Patel, 285 Ga. 391, 392 (1) (a) (677 SE2d 114) (2009). As to the Local Board’s ultimate decision, i.e., whether and what type of sanction to impose, “[cjourts are reluctant to substitute their judgment for that of a school board where its exercise of judgment does not violate the law. We presume that the actions of the board are not arbitrary and capricious, but are reasonable unless there is clear evidence to the contrary.” Brawner v. Marietta City Bd. of Educ., 285 Ga. App. 10, 15 (646 SE2d 89) (2007) (citation omitted). Thus, in reviewing the Local Board’s decision to expel S. G., we are required to affirm absent an abuse of discretion, which would be present if the Local Board misapplied the relevant law or if its rulings are not supported by the evidence. See Clinch County Bd. of Educ. v. Hinson, 247 Ga. App. 33, 36 (1) (543 SE2d 91) (2000); Lewis v. Lewis, 316 Ga. App. 67, 68 (728 SE2d 741) (2012). Central to this appeal is whether the self-defense standards under OCGA § 16-3-21 apply to school disciplinary hearings and, if they do, whether the Local Board properly applied the statute in expelling S. G.

1. Self-defense law and its application to non-criminal proceedings

“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force[.]” OCGA § 16-3-21(a). As the Local Board argues happened here, a person is not justified in using force when she engages “in a combat by agreement unless [s]he withdraws from the encounter and effectively communicates to such other person [her] intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.” OCGA § 16-3-21(b)(3). Any ordinance, resolution, rule, regulation, or policy of any county or other political subdivision of the state that conflicts with OCGA § 16-3-21 “shall be null, void, and of no force and effect.” OCGA § 16-3-21(c). The Local Board is a political subdivision of the state, and thus its rules are subject to this Code section. See Coffee Cty. Sch. Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995). This provision ofOCGA § 16-3-21, although appearing in the Criminal Code, applies in other contexts as well. See Allen v. City of Atlanta, 235 Ga. App. 516, 517-18 (510 SE2d 64) (1998) (holding that a municipality’s workplace rule precluding the use of force, regardless of whether such use was in self-defense, was invalid because it conflicted with OCGA § 16-3-21). Accordingly, we now consider whether the Local Board applied those standards in this case.

2. The Local Board’s findings and application of self-defense standards

The Local Board made limited factual findings that consisted mainly of a determination that S. G. was involved in a fight on school grounds and caused physical injuries to the other student. The Local Board made no express finding related to S. G.’s justification defense, much less render an explicit decision on that defense, but argues that it implicitly did so. We ordinarily presume that public officials, which would include members of the Local Board, properly discharge their duties, but only in the absence of evidence to the contrary See Bank of Clearwater v. Kimbrel, 240 Ga. 570, 572 (242 SE2d 16) (1978). We cannot indulge in that presumption here because the Local Board’s express findings do not support an implicit rejection of S. G.’s self-defense claim; its arguments advanced subsequent to making these express findings for an “implicit rejection” of S. G.’s claim are not supported by the record evidence; and there is evidence that the Local Board has previously failed to consider properly other students’ claims of self-defense.

(a) Evidence showing that the Local Board did not consider S. G. self-defense claim

The limited factual findings made by the Local Board, while supported by the evidence, do not support the Local Board’s argument that it properly applied self-defense laws in expelling S. G. The Local Board expressly found that the fight started when S. G. hit the other student after the student moved toward S. G. One could read this express finding as supporting an implicit finding that S. G. did act in self-defense. Such a finding would be supported by the record, because an eyewitness testified that the other student was the aggressor, and the video undisputedly shows that the other student followed S. G. before coming within inches of S. G. Although an implicit finding that S. G. acted in self-defense is the most natural reading of the Local Board’s express findings, this would be at odds with the Local Board’s ultimate conclusion to expel S. G., leaving us to wonder whether the Local Board actually considered S. G.’s self-defense claim.

Our doubt is compounded by the Local Board’s attempts to show that it considered S. G.’s claim. Before the State Board, the Local Board made no argument that OCGA § 16-3-21 did not apply to school disciplinary hearings; rather, it argued to the State Board that S. G.’s self-defense claim was precluded by OCGA § 16-3-21(b)(1) based on allegations that she was engaged in mutual combat. By virtue of its arguments to the State Board, the Local Board implicitly conceded that OCGA § 16-3-21 applied to school disciplinary hearings. Notwithstanding these arguments below, and despite claiming that it considered and rejected S. G.’s claim of self-defense, the Local Board argues for the first time on appeal that the criminal self-defense standards do not apply to school disciplinary hearings. If the Local Board does not believe that OCGA § 16-3-21 applies to school disciplinary hearings, it is hard to fathom how the Local Board could have possibly considered S. G.’s justification defense.

(b) Assuming the Local Board considered S. G.’s claim, it nevertheless erred

The Local Board argues that it implicitly rejected S. G.’s claim because she was engaged in mutual combat and did not retreat from the encounter before punching the other student. Before addressing the merits of these arguments, it is important to recap the evidence in the record. The record here consists of the following witness testimony: the assistant principal, who does not appear to have witnessed the fight and who served as the school’s advocate at the hearing; the SRO, who only confirmed that he charged S. G. with a misdemeanor and did not state that he observed the fight; a school secretary, who was present for the fight and who testified that the other student was the aggressor; S. G., who testified that she hit the other girl after the other girl came after her and pushed her; and S. G.’s mother, who testified that she heard S. G. tell the other student to get away from her and that the other student insisted on fighting.

The testimony of the only people who testified they actually witnessed the fight — the school secretary, S. G., and her mother — is uniform and largely corroborated by the video recording, which undisputedly shows S. G. walking toward the building (camera), followed quickly by the other student, and S. G. stopping with her back to a pillar, at which time the other girl comes within inches of S. G.’s face. The undisputed evidence also reveals that S. G. hit the other student first, took her to the ground, and repeatedly hit her while sitting on top of her. Even after S. G. repeatedly punched the other student, the student again went after S. G. when the girls were first separated.

When considering the prior difficulties between S. G. and the other student, which the Local Board acknowledges, the corroborated testimony that the other student was the aggressor, and the other student’s attempt to attack S. G. after being separated, there is sufficient evidence to support a claim that S. G. reasonably believed that she had to use force to protect herself from the other student. Because there is credible evidence to support a justification defense, it was for the Local Board to disprove that defense. Cf. White v. State, 312 Ga. App. 421, 424 (1) (718 SE2d 335) (2011). It failed to do so.

The Local Board first argues that S. G.’s use of force was not justified because she was engaged in mutual combat. Assuming that the Local Board had found that S. G. and the other student agreed to fight based on evidence that S. G. and the other student had been having problems prior to the fight and were rumored to have plans to fight, the video clearly shows that, rather than taking steps to ensure a fight would occur, as the Local Board argues, S. G. walked away from the other student and the other student aggressively followed S. G. See Clay v. State, 290 Ga. 822, 825, n.1 (725 SE2d 260) (2012) (“This Court owes no deference to a trial court’s factual findings gleaned from a review of a videotape that are not the subject of testimony requiring the trial court’s weighing of credibility or resolving of conflicts in the evidence.”). Therefore, the undisputed evidence of S. G.’s walking away shows an intention to withdraw from any agreement to fight, if there ever was one. See OCGA § 16-3-21(b) (“A person is not justified in using force.. .ifhe.. .was engaged in combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so[.]”).

The Local Board also argues that, because S. G. stopped at the brick pillar, she did not completely withdraw or retreat from the situation, and therefore her conduct could not have been in self-defense. As discussed above, the evidence shows that S. G. was not the aggressor. As a result, she had no duty to retreat before being justified in using force to protect herself. OCGA § 16-3-23.1; see also Johnson v. State, 253 Ga. 37, 38 (315 SE2d 871) (1984). Although the other student had stepped back before S. G. threw the first punch, this was preceded by the other student’s aggressive behavior. OCGA § 16-3-23.1 did not require S. G. to be hit first before defending herself; nor was S. G. required to have lost the fight in order to claim self-defense. That an individual prevails in standing their ground against an aggressor does not make her actions unlawful. Thus, the evidence does not support the Local Board’s reasons for “implicitly rejecting” S. G.’s justification defense on the basis that she was engaged in mutual combat and did not retreat.

Our review of the Local Board’s order and record show either that the Local Board did not consider S. G.’s claim of self-defense, or its grounds for rejecting her claim are not supported by the record. And the Local Board’s remaining arguments on appeal only bolster our conclusion.

(c) Evidence that the Local Board has a zero-tolerance policy toward school fights and fails to consider self-defense claims

S. G. suggests that the Local Board’s decision to expel her merely on a finding that she was in a fight proves that the board has a zero-tolerance policy that conflicts with OCGA § 16-3-21. In support of her argument, S. G. cites prior State Board rulings reversing this Local Board’s disciplinary decisions for ignoring students’ evidence of self-defense. See Q. W. v. Henry Cty. Bd. of Ed., Case No. 2013-64 (Ga. SBE, August 2013) (reversing Henry County Board of Education’s suspension of student who engaged in mutual combat where the evidence showed that the other student was the aggressor); T. P. v. Henry Cty. Bd. of Ed., Case No. 2005-25 (Ga. SBE, April 2005) (reversing Henry County Board of Education’s expulsion of student for fighting on school grounds where the local board disregarded self-defense evidence).

Rather than refuting S. G.’s characterization of its policy, the Local Board defends its procedures and argues that it should be afforded broad flexibility to impose whatever disciplinary sanctions are necessary to maintain order and such rules should not be subject to criminal law standards, including OCGA § 16-3-21. The Local Board’s position that the state’s criminal law of self-defense does not apply to its disciplinary hearings is not supported by legal authority, as discussed above.

The Local Board’s reliance on Bethel School District No. 403 v. Fraser, 478 U.S. 675, 686 (106 S. Ct. 3159, 92 LE2d 549) (1986) does not alter our analysis. In Bethel, the Supreme Court considered a due process challenge to a school’s disciplinary rule and held that school rules need not be as detailed as Criminal Codes in order to give adequate warning of sanctionable conduct. Id. The fact that the Bethel Court stated that schools should “be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process” does not establish legal precedent that school districts are permitted to implement disciplinary policies that contravene state laws. As the Eleventh Circuit has observed, “[t]he opinions of the Supreme Court are not the United States Code. Every sentence in a Supreme Court opinion is not law. Only the holdings of Supreme Court decisions are law.” Natson v. United States, 494 Fed. Appx. 3, 5, n.2 (11th Cir. 2012). The Local Board’s argument that Bethel stands for the proposition that criminal laws have no place in school disciplinary proceedings, beyond being inaccurate, is also disingenuous because the Local Board relies on criminal laws to measure conduct as sanctionable. The student handbook lists as conduct subject to expulsion or suspension violations that constitute a misdemeanor, and one of the grounds upon which the Local Board expelled S. G. was that she was charged with a misdemeanor. Thus, although school boards may be afforded certain latitude in creating and enforcing their rules, they still have a duty to fashion rules and policies that are in harmony with state laws, including OCGA § 16-3-21. OCGA § 16-3-21(c); cf. OCGA § 20-2-109 (“It shall be the local school superintendent’s duty to enforce all regulations and rules ... of the local board according to the laws of the state and the rules and regulations made by the local board that are not in conflict with state laws[.]”).

Decided May 31, 2016

The Local Board, through its actions and arguments, has demonstrated a policy of expelling students for fighting on school grounds regardless of whether the student was acting in self-defense. The Local Board’s rejection of S.G.’s justification defense is consistent with that zero-tolerance policy, is inconsistent with the requirements of OCGA § 16-3-21(c), is not supported by the record, and, therefore, amounted to an abuse of discretion. Accordingly, we affirm the superior court’s reversal of the Local Board’s ruling.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

Smith, Welch, Webb & White, A. J. Welch, Jr., Megan M. Pearson, for appellant.

Michael J. Tafelski, Lisa J. Krisher, Phyllis J. Holmen; Bondur-ant, Mixson & Elmore, Robert L. Ashe III, for appellee.

       The record does not reveal the status of that criminal charge.

       Although the term of S. G.’s expulsion has now expired and she has graduated from high school, whether she violated the student handbook, and thus whether the infraction should remain on her school disciplinary record, is not moot. See Fulton County Bd. of Ed. v. D. R. H., 325 Ga. App. 53, 60-61 (2) (752 SE2d 103) (2013); see also Jayko v. State, 335 Ga. App. 684 (782 SE2d 788) (2016).

       Additionally, the Local Board made no argument to the State Board that S. G. was precluded from a justification defense because she failed to retreat. The expansion of the Local Board’s arguments through the course of the proceedings suggests a post-hoc rationalization for its disciplinary action and is further evidence that the Local Board did not really evaluate S. G.’s self-defense claim.

       We are not importing the requirement from criminal prosecutions that a defendant’s justification defense be disproved beyond a reasonable doubt. See White, 312 Ga. App. at 424(1). We need not decide what level of proof applies here, because no matter what standard is used, the Local Board has presented no basis to disprove S. G.’s self-defense claim.

       We recognize that the superior court’s order focused on the State Board’s determination, rather than the Local Board’s rulings, but we may affirm the superior court’s ruling if it is right for any reason. See Bailey v. Hall, 267 Ga. App. 222, 223, n.1 (599 SE2d 226) (2004) (judgment may be affirmed as right for any reason when judgment may be sustained upon legal basis apparent from the record that was fairly presented in court below). S. G. argued below that the hearing officer and Local Board erred in expelling her without considering her evidence of self-defense; thus, we may apply the right for any reason rule.


author: BARNES, Presiding Judge. RICKMAN, Judge,

text:
    A16A0582.
    SCHUMACHER et al. v. CITY OF ROSWELL.
    (787 SE2d 254)
   BARNES, Presiding Judge.

Eric Schumacher and Mike Nyden, who are residents and residential property owners in the City of Roswell (the “City”), brought this action for declaratory and injunctive relief in the Superior Court of Fulton County to challenge the City’s approval of a new zoning ordinance and map that rezoned their respective properties. After the superior court granted the City’s motion for judgment on the pleadings and denied the plaintiffs’ request for an interlocutory injunction as moot, the plaintiffs filed this direct appeal. Because the plaintiffs were required to appeal by discretionary application, we dismiss this appeal for lack of jurisdiction.

As reflected in the pleadings and attached exhibits, the plaintiffs are citizens and taxpayers of the City and own residential real property located there. In February 2014, after conducting two public meetings, the Council of the City of Roswell (the “City Council”) approved a new zoning ordinance called the Unified Development Code (“UDC”) and a new zoning map. The UDC substantially replaced the City’s existing zoning ordinance and rezoned the plaintiffs’ properties.

Following the adoption of the UDC and new zoning map, the plaintiffs commenced the present action against the City, challenging the manner in which the City Council had approved the UDC and map. In their complaint, as later amended, the plaintiffs alleged that the adoption of the UDC violated Georgia’s Zoning Procedures Law, OCGA § 36-66-1 et seq.; violated the plaintiffs’ due process rights under the state and federal Constitutions; violated the Roswell City Charter; and violated the conflict-of-interest laws applicable to zoning actions codified in OCGA § 36-67A-1 etseq. The plaintiffs alleged that they were harmed by the rezoning of their residential properties under the UDC, and they sought a declaratory judgment that the UDC was void and unenforceable as illegally enacted, an injunction prohibiting its enforcement, and attorney fees and costs.

The City answered, denying the plaintiffs’ allegations, and attached and incorporated by reference to their answer certified copies of the UDC, the new zoning map, and the minutes of the two City Council meetings where the UDC and map were discussed and approved. The City also filed a motion for judgment on the pleadings, seeking dismissal of all of the plaintiffs’ claims. The plaintiffs opposed the City’s motion for judgment on the pleadings and filed a motion for interlocutory injunction to prohibit enforcement of the UDC during the pendency of the litigation. After conducting a hearing in which the parties presented oral argument, the trial court granted the City’s motion for judgment on the pleadings on all of the plaintiffs’ claims and denied the plaintiffs’ motion for an interlocutory injunction as moot.

The plaintiffs filed a direct appeal from the trial court’s order, challenging only the dismissal of their state and federal constitutional due process claims. The City moved to dismiss the plaintiffs’ direct appeal for lack of jurisdiction, arguing that the plaintiffs were required to comply with the application procedures for discretionary appeal.

Two principal statutes determine the method for pursuing appeals in our Court: OCGA § 5-6-34 describes the trial court judgments and orders that parties may appeal directly, while OCGA § 5-6-35 describes the cases in which parties must file an application for discretionary appeal. Rebich v. Miles, 264 Ga. 467, 468 (448 SE2d 192) (1994). If an appellant files a direct appeal under OCGA § 5-6-34 in a case in which a discretionary application was required under OCGA § 5-6-35, this Court lacks jurisdiction to hear the merits of the appeal and must dismiss it. Id.

OCGA § 5-6-35 (a) (1) provides that “[ajppeals from decisions of the superior courts reviewing decisions of. . . state and local administrative agencies” must be brought by application for discretionary appeal. See Hamryka v. City of Dawsonville, 291 Ga. 124, 125 (1) (728 SE2d 197) (2012). “The General Assembly passed OCGA § 5-6-35 to assist in reducing the massive caseload of the appellate courts,” and the legislative intent behind OCGA § 5-6-35 (a) (1) was to give appellate courts the discretion not to entertain an appeal where two tribunals (the superior court and an administrative agency) had already heard the matter. Rebich, 264 Ga. at 468.

Construing OCGA § 5-6-35 (a) (1), our Supreme Court held in Trend Dev. Corp. v. Douglas County, 259 Ga. 425 (1) (383 SE2d 123) (1989) that appellate review of superior court orders reviewing county commissions’ zoning decisions require a discretionary application. As the Supreme Court later explained:

A case filed in either appellate court that involves zoning must come by application when “it is an appeal from the decision of a court reviewing a decision of an administrative agency” within the meaning of OCGA § 5-6-35 (a) (1). In essence, this Court determined in Trend and its progeny that a zoning decision made by a local government was the action of a local administrative agency within the meaning of OCGA § 5-6-35 (a) (1), and an appeal from a superior court decision reviewing the local administrative agency’s decision must come by way of application pursuant to [OCGA] § 5-6-35 (a) (1).

(Citations omitted.) Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856, 857 (1) (572 SE2d 530) (2002).

Additionally, since Trend, the Supreme Court of Georgia has clarified that OCGA § 5-6-35 (a) (1) applies not only to cases where a party appeals directly to the superior court from the local government’s zoning decision, but also in cases where a party collaterally attacks the local government’s zoning decision by filing an action in superior court for mandamus, declaratory judgment, or injunctive relief. See Hamryka, 291 Ga. at 125 (2); Ladzinske v. Allen, 280 Ga. 264, 265 (626 SE2d 83) (2006); Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255, 258 (2) (564 SE2d 715) (2002). As the Supreme Court noted in Hamryka, 291 Ga. at 125 (2), OCGA § 5-6-35 (a) (1) “is not limited to ‘appeals’ to the superior court but instead applies to appeals from the superior court’s ‘review[ ]’ of an administrative agency decision, however that judicial review is sought.” (Emphasis in original.) Accordingly, if a plaintiff’s action filed in superior court “attacks or defends the validity of [a local government’s zoning decision] and seeks to prevent or promote the enforcement thereof, the [superior] court must necessarily ‘review’ the [zoning] decision before ruling on the [plaintiff’s] request” for relief, and the appeal of the superior court’s ruling must proceed by discretionary application. (Punctuation and footnotes omitted.) Ferguson, 275 Ga. at 258-259 (2).

Here, the plaintiffs’ amended complaint seeking declaratory and injunctive relief challenged the City Council’s zoning decision to approve the UDC and new zoning map on constitutional due process and other grounds, and the plaintiffs sought to have the UDC and map declared null and void and to prevent their enforcement. None of the plaintiffs’ requests for relief were independent of the City Council’s decision to approve the UDC and map, and none of the requests for relief could be granted or denied by the superior court without affirming or reversing the City Council’s decision. Under these circumstances, we conclude that the plaintiffs’ appeal was from the superior court’s review of a local government zoning decision, requiring appeal by discretionary application under OCGA § 5-6-35 (a) (1). See Trend Dev. Corp., 259 Ga. 425-426 (1).

The plaintiffs, however, argue that they were not required to file a discretionary application because the City Council’s decision to approve the UDC and map was a “legislative” rather than an “administrative” zoning decision. Specifically, the plaintiffs draw a distinction between a “legislative” decision by the City Council to approve a new zoning ordinance and map as occurred in this case and a more specific “administrative” decision by the City Council regarding the zoning of a specific parcel of land. According to the plaintiffs, a discretionary application is only required in the latter circumstance.

The plaintiffs’ effort to distinguish between a “legislative” and “administrative” zoning decision by a local government is misguided in the context of evaluating our appellate jurisdiction in zoning cases. Trend construed a county commission’s vote on a rezoning proposal as a local administrative agency decision for purposes of determining the method of appeal, see Trend Dev. Corp., 259 Ga. at425-426 (1), (2), despite the fact that in other contexts, the Court had held that “commissioners in voting on either a zoning or re-zoning proposal are functioning in a legislative capacity.” Olley Valley Estates v. Fussell, 232 Ga. 779, 781 (1) (208 SE2d 801) (1974). The Supreme Court’s decision in Trend therefore reflects that a zoning decision that could be characterized as “legislative” in other contexts still can fall within the ambit of OCGA § 5-6-35 (a) (1).

Furthermore, it is undisputed that the City Council’s approval of the UDC and map rezoned the properties of the plaintiffs and other property owners. Clearly, Trend and its progeny establish that rezoning decisions as to particular parcels of property are local administrative agency decisions under OCGA § 5-6-35 (a) (1), see Trend Dev. Corp., 259 Ga. at 425-426 (1), (2); Nelson v. Fulton County, 262 Ga. App. 382, 382 (585 SE2d 710) (2003); Pruitt v. Fulton County, 210 Ga. App. 873, 873 (437 SE2d 861) (1993), and we can discern no logical or practical reason for reaching a different, conclusion in this case simply because the zoning decision rezoned multiple parcels of land rather than a single parcel.

Additionally, our Supreme Court has held that a discretionary application is required to appeal a superior court ruling on a property owner’s constitutional claim challenging the validity of a city zoning ordinance on its face. O S Advertising Co. of Ga. v. Rubin, 267 Ga. 723, 725 (2) (482 SE2d 295) (1997). In Rubin, the Supreme Court rejected the appellant’s argument that when a superior court considers a landowner’s facial constitutional challenge to a city zoning ordinance, the superior court “is not acting as a reviewing court ruling on an appeal from an administrative agency” for purposes of the discretionary appeal statute. Id. at 725 (2). The Supreme Court refused to deviate from the “bright-line rule” established in Trend that “appeals in zoning cases require[ ] an application,” id. at 724 (1), even though a facial challenge to a city zoning ordinance does not involve the superior court reviewing a zoning decision specific to a single parcel of land. Id. at 725 (2).

Rubin undercuts the plaintiffs’ argument that we should draw a distinction between a “legislative” and “administrative” zoning decision and require a discretionary application only in appeals from the superior court’s review of a local government zoning decision that addresses a particular land parcel. Rather, Rubin reflects that a discretionary appeal is required more broadly in cases like the present one, where the superior court reviews property owners’ facial challenge to the validity of a city zoning ordinance, which is in essence a challenge to a city council’s decision to adopt the ordinance in the first instance. See Rubin, 267 Ga. at 725 (2).

Lastly, we note that there is an exception to the discretionary application requirement under OCGA § 5-6-35 (a) (1) in cases where the plaintiff who challenged the zoning decision in superior court was not a party, and could not have been a party, in the local government’s zoning proceeding. See Ladzinske, 280 Ga. at 265 (“[The] rationale for requiring a discretionary application does not apply where the person who seeks to appeal was not a party to the administrative proceedings, unless he had standing to participate therein, but purposely opted out at the administrative level.”). However,

the word “party” is used in this context not in the technical sense of whether the challenger in superior court was a formally named party in the administrative process, but rather in the generic sense of whether the challenger participated in the administrative proceedings at issue (or could have participated but purposely did not).

Hamryka, 291 Ga. at 126 (3).

Of course, there were no specific “parties” in the technical sense to the two public meetings conducted by the City Council in which the UDC and map were discussed, but the certified minutes of those meetings reflect that members of the public were allowed to participate and make comments before the final vote was taken. Indeed, Plaintiff Schumacher attended and participated in the first public meeting and voiced his concerns over the UDC, and a letter from plaintiffs’ counsel was read at the second public meeting that voiced objection to the manner and procedure in which the UDC was being adopted. Thus, this is not a case where only certain individuals were permitted to participate in the administrative zoning proceedings; rather, the proceedings were open to all members of the public for their participation, including the plaintiffs and their counsel. Given these circumstances, we conclude that the exception to the discretionary appeal requirement for “non-parties” to administrative zoning proceedings does not apply

For these combined reasons, we conclude that the plaintiffs’ appeal of the superior court’s grant of the City’s motion for judgment on the pleadings is “an appeal from the decision of a court reviewing a decision of an administrative agency within the meaning of OCGA § 5-6-35 (a) (1)” that had to proceed by discretionary application. Congregation of Anshei Chesed, 275 Ga. at 857 (1), quoting Trend Dev. Corp., 259 Ga. at 425 (1). Because the plaintiffs failed to comply with the discretionary appeal procedure, we hereby grant the City’s motion to dismiss the appeal for lack of jurisdiction.

Appeal dismissed.

Boggs, J., concurs. Rickman, J., concurs fully and specially.

RICKMAN, Judge,

concurring fully and specially.

I concur fully with the majority that this appeal is subject to dismissal based upon O S Advertising Co. of Ga., Inc. v. Rubin, 267 Ga. 723 (482 SE2d 295) (1997) and Hamryka v. City of Dawsonville, 291 Ga. 124, 125 (1) (728 SE2d 197) (2012). I write separately to express a genuine and respectful concern that the plain language of OCGA § 5-6-35 (a) (1) combined with the oft-repeated directive of our Supreme Court that we are to give statutory text its “ordinary, logical, and common meaning,” leads me to question whether the acknowledged “fallacies in the rationale in [Trend Development Corp. v. Douglas County, 259 Ga. 425 (383 SE2d 123) (1989)]” remain viable. O S Advertising Co., 267 Ga. at 725 (2); see Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013) (“When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.”) (Citations and punctuation omitted.); see also Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (743 SE2d 55) (2012); City of Atlanta v. City of College Park, 292 Ga. 741, 744 (741 SE2d 147) (2013); Hendry v. Hendry, 292 Ga. 1, 3 (1) (734 SE2d 46) (2012); Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013).

OCGA § 5-6-35 (a) (1) does not provide that appeals in zoning cases can be brought only by means of the discretionary appeal process. By its terms, that statute provides, in relevant part, only that “[a]ppeals from decisions of the superior courts reviewing decisions of . . . local administrative agencies” must be brought by means of that process.

O S Advertising Co., 267 Ga. at 726 (Carley, J., dissenting). See also King v. City of Bainbridge, 272 Ga. 427 (1) (531 SE2d 350) (2000). “An administrative agency isa governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking.” Dept. of Transp. v. Del-Cook Timber Co., 248 Ga. 734, 739 (3) (e) (285 SE2d 913) (1982). I question how a local City Council, an elected body, can be labeled an “administrative agency,” though I acknowledge that our Supreme Court appears to have done exactly that in Hamryka and its predecessors:

Here, the three counts of Appellants’ complaint . . . sought to invalidate the zoning decision of the Dawsonville City Council because, in making its decision, the council allegedly failed to abide by certain local ordinances and state laws. Thus, Appellants’ complaint asked the superior court to review a decision of a local administrative agency, and they are now appealing the decision of the superior court.

Decided June 1, 2016

John R. Monroe, for appellants.

Freeman Mathis & Gary, Dana K. Maine, Coleen D. Hosack, for appellee.

Hamryka, 291 Ga. App. at 125 (1).

I believe that we must also strive to reconcile OCGA § 5-6-35 (a) (1) with OCGA § 5-6-30, which directs us to construe the Appellate Practice Act in such a manner as to reach the merits of cases brought to us “except as may be specifically referred to” in that article. (Emphasis supplied.)

When the above issues, which were discussed by Justice Fletcher, writing for the majority, and highlighted by a dissenting Justice Carley in O S Advertising Co., are combined with our Supreme Court’s instruction to give statutory text its “ordinary, logical and common meanings,” it is difficult, to reconcile this result. (Citation and punctuation omitted.) McKinney v. Fuciarelli, 298 Ga. 873, 874 (785 SE2d 861) (2016).

However, “this Court has no authority to overrule or modify a decision made by the Supreme Court of Georgia, as ‘[t]he decisions of the Supreme Court shall bind all other courts as precedents.’ ” Pak v. Ga. Dept. of Behavioral Health & Developmental Disabilities, 317 Ga. App. 486, 488 (731 SE2d 384) (2012) (quoting Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI). Our job is to apply binding precedent, and the binding authority dictates that all zoning cases must be appealed utilizing the discretionary procedures pursuant to OCGA § 5-6-35 (a) (1).

       A third plaintiff named in the complaint is not a party to this appeal. The original complaint named the Mayor of Roswell and City Council members as additional defendants, but they were dropped as defendants in the plaintiffs’ amended complaint.

       The plaintiffs originally filed their direct appeal in the Supreme Court of Georgia, which transferred the case to this Court.

       The plaintiffs also rely on Sprayberry v. Dougherty County, 273 Ga. 503, 504(1) (543 SE2d 29) (2001), and SMD, LLP v. City of Roswell, 252 Ga.App. 438, 439 (1) (555 SE2d 813) (2001), to support their contention that they were not required to file a discretionary application, but their reliance on those cases is misplaced. Our Supreme Court’s subsequent decision in Ferguson , 275 Ga. at 258 (2) abrogated Spray berry and SMD to the extent that those cases may have otherwise applied to the facts of the present case.


author: BARNES, Presiding Judge.

text:
    A16A0138.
    ADEWUMI v. AMELIA GROVE/ASHLAND PARK HOMEOWNERS ASSOCIATION, INC.
    (787 SE2d 761)
   BARNES, Presiding Judge.

Omotola Adewumi appeals pro se from the order of the trial court granting summary judgment to Amelia Grove/Ashland Park Homeowners Association (“the Association”) in its complaint for “judicial foreclosure of lien and damages” for unpaid property assessments. Adewumi contends that summary judgment was not warranted because genuine issues of material fact exist as to whether she received proper notice pursuant to OCGA § 44-3-109 (c) and OCGA § 44-3-232 (c), and that the trial court improperly considered Adewu-mi’s failure to respond to the Association’s request for admissions in its grant of summary judgment. 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. OCGA § 9-11-56 (c). Adenovo 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.

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

So viewed, the record demonstrates that on August 4, 2014, the Association filed its complaint for judicial foreclosure of lien and damages in which it alleged that Adewumi owed $686 in unpaid assessments and accrued late fees for property located in the Amelia Grove/Ashland Park Development and $1,350 in attorney fees and costs incurred in seeking to recover the unpaid assessments. The Association also sought to foreclose on its statutory lien pursuant to OCGA § 44-3-232 (a). Adewumi answered and asserted multiple affirmative defenses, including failure to comply with unspecified statutory requirements.

On December 8, 2014, the Association filed its first request for admissions, interrogatories, and request for production of documents. Adewumi did not respond to the discovery requests, and on April 6, 2015, the Association filed a motion for summary judgment, which, following a hearing, the trial court granted, entering judgment in favor of the Association for $3,112.80 and ordering that the Association could foreclose its statutory lien pursuant to OCGA § 44-3-232. Adewumi appeals from that order. The Association did not file an appellate brief, and the failure to do so serves as an admission of Adewumi’s statement of facts, as long as those facts are supported by the record. See Green v. Waddleton, 288 Ga. App. 369, n. 1 (654 SE2d 204) (2007).

1. Our first consideration is whether we have jurisdiction over this appeal. Atlantic-Canadian Corp. v. Hammer, Siler, George Assoc., 167 Ga. App. 257 (1) (306 SE2d 22) (1983). “Although the grant of a motion for summary judgment is in general directly appealable, where the amount of the judgment is $10,000 or less, an application for discretionary appeal is required.” (Citation and punctuation omitted.) Ca-Shar, Inc. v. McKesson Corp., 204 Ga. App. 865 (420 SE2d 810) (1992); OCGA § 5-6-35 (a) (6). However, in determining whether an appeal falls within the ambit of the discretionary appeals procedure, the final judgment is considered in its entirety and not merely in its various parts. See Alexander v. Steining, 197 Ga. App. 328 (1) (398 SE2d 390) (1990). In this case, the trial court permitted the Association to foreclose on a statutory lien, which we have held renders this case directly appealable. See Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 391-392 (469 SE2d 469) (1996) (even though damages awarded were less than $10,000, final judgment in an action that arose as a complaint on a lien against real property is directly appealable).

2. Where a defendant moving for summary judgment demonstrates the absence of a genuine issue of material fact and that the undisputed evidence warrants judgment as a matter of law, “the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Lau’s Corp., Inc. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991); OCGA § 9-11-56 (e).

It is well settled that a party’s failure to timely respond to requests for admission conclusively establishes as a matter of law each of the matters addressed in the requests. This is true even if the requested admissions require opinions or conclusions of law, so long as the legal conclusions relate to the facts of the case. . . . [T]he language in OCGA § 9-11-36 (a) is clear, unambiguous, and unequivocal and means just what it says. One must comply strictly and literally with the terms of the statute upon the peril of having his response construed to be an admission. Thus, matters deemed admitted under this statute become solemn admissions in judicio and are conclusive as a matter of law on the matters stated and cannot be contradicted by other evidence unless the admissions are withdrawn or amended on formal motion.

(Citations and punctuation omitted.) Robinson v. Global Resources, Inc., 300 Ga. App. 139, 140 (684 SE2d 104) (2009).

Here, Adewumi’s responses to the Association’s requests for admission were due on or before January 8, 2015. Adewumi did not respond, thus admitting the requests as a matter of law. See OCGA § 9-11-36 (a) (2) (the matter addressed in a request “is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney”). OCGA § 9-11-36 (b) permits a party to request withdrawal of an admission “when [1] the presentation of the merits of the action will be subserved thereby and [2] the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits

Adewumi did not request that the admissions be withdrawn, nor respond to the Association’s motion for summary judgment. Because Adewumi

did not avail [herself] of any of the variety of responses available under OCGA § 9-11-36 and chose not to seek the liberal remedies afforded to parties under the statute to avoid the consequences of a failure to respond,... the subject matter of [the Association’s] requests for admission stood admitted.

G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327, 331 (2) (486 SE2d 810) (1997). And “[w]here a party fail[s] to answer a request for admissions within the requisite time and the admissions removed all issues of fact, the other party [is] entitled to a grant of its motion for summary judgment.” (Citations and punctuation omitted.) Atlanta Cas. Co. v. Goodwin, 205 Ga. App. 421, 422 (422 SE2d 76) (1992).

Thus, Adewumi admitted that she owed the assessments to the Association and was indebted to it in the amount alleged in the complaint, removing any genuine issue of material fact from the case as to her indebtedness.

3. Adewumi contends that genuine issues of material fact exist as to whether the Association was entitled to foreclose on its statutory lien because notice was only sent to the address of the property at issue and not to another address designated in the record. We do not agree.

OCGA § 44-3-232 (c) provides:

Not less than 30 days after notice is sent by certified mail or statutory overnight delivery, return receipt requested, to the lot owner both at the address of the lot and at any other address or addresses which the lot owner may have designated to the association in writing, the lien may be foreclosed by the association by an action, judgment, and court order for foreclosure in the same manner as other liens for the improvement of real property, subject to superior liens or encumbrances, but any such court order for judicial foreclosure shall not affect the rights of holders of superior liens or encumbrances to exercise any rights or powers afforded to them under their security instruments. The notice provided for in this subsection shall specify the amount of the assessments then due and payable together with authorized late charges and the rate of interest accruing thereon. No foreclosure action against a lien arising out of this subsection shall be permitted unless the amount of the lien is at least $2,000.00_

Adewumi does not contend that she was not provided with notice, but that the statute required that the notice be sent to her designated address provided to the Association. At the hearing, the Association argued that notice was sent to the address of record, and there was no evidence that Adewumi had provided the Association with another designated address in writing. However, the record included multiple notices from the Association that were sent to Adewumi at a California address, and the record does not reflect that notice was mailed to that address.

It is fundamental where notice to property owners is required by statute prior to action affecting their vested property rights, due process under both the 1983 Constitution of Georgia and the United States Constitution mandates adequate notice that is reasonably likely to actually provide notice. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. Constitutional due process of law includes notice and hearing as a matter of right where one’s property interests are involved.

(Citations, punctuation and footnotes omitted.) Mitsubishi Motors Credit of America v. Robinson & Stephens, Inc., 263 Ga. App. 168, 170 (1) (587 SE2d 146) (2003).

Although it appears that the notice of the statutory lien was only sent to the property’s address, it is undisputed that Adewumi timely responded to the action and appeared at the hearing on the motion for summary judgment. Thus, notwithstanding her contention that the Association failed to comply with the notice requirements pursuant to OCGA § 44-3-232 (c), the fundamental due process requirements of “notice” and “hearing” were satisfied. See generally Boatright v. Glynn County School Dist., 315 Ga. App. 468, 470 (1) (726 SE2d 591) (2012) (due process requires that the state must give notice and an opportunity to be heard to a person deprived of a property interest).

Decided June 2, 2016.

Omotola Adewumi, pro se.

Lazega & Johanson, Kathryn K. Roberts, for appellee.

Based on the foregoing, the trial court did not err in granting summary judgment to the Association.

Judgment affirmed.

Boggs and Rickman, JJ., concur.


author: Dillard, Judge.

text:
    A16A0588.
    HAYES v. THE STATE.
    (786 SE2d 539)
   Dillard, Judge.

Marion S. Hayes, proceeding pro se, appeals from his convictions and sentence entered after he pleaded guilty to charges of burglary (count 1), possession of tools for the commission of a crime (count 3), and misdemeanor obstruction of a law-enforcement officer (count 4) on December 5, 2011. Hayes contends that, inter alia, the trial court improperly participated in the guilty-plea proceedings, rendering his plea involuntary Because we agree, we reverse Hayes’s convictions and sentence.

The record reflects that Hayes entered an Alford plea to the offenses enumerated supra. He was thereafter sentenced to 20 years to serve seven years with the balance on probation on count 1 (burglary); five years on count 3 (possession of tools for the commission of a crime), to run concurrent with count 1; and 12 months on count 4 (misdemeanor obstruction of a law-enforcement officer), also to run concurrent with count 1. On September 28, 2015, the trial court granted Hayes’s pro se motion for an out-of-time appeal to his convictions and the accompanying sentence after the State filed no response to same, rendering Hayes’s assertions uncontroverted. This appeal follows.

Hayes argues that his guilty plea was rendered involuntarily because the trial court improperly participated in the guilty-plea proceedings in violation of Superior Court Rule 33.5 (A), which provides that “[t]he trial judge should not participate in plea discussions.” We agree.

As our Supreme Court has recognized, due to the “force and majesty of the judiciary,” a trial court’s participation in the plea negotiation “may skew the defendant’s decision-making and render the plea involuntary because a defendant may disregard proper considerations and waive rights based solely on the trial court’s stated inclination as to sentence.” Accordingly, both this Court and the Supreme Court of Georgia have reversed when it appears from the record that the trial court intimated its intentions with regard to sentencing should a defendant proceed to trial rather than accept a guilty plea.

Here, Hayes takes issue with the trial court’s comments that, if he chose to go to trial and were convicted and sentenced to 20 years, he would “serve every day of that in prison.” The court made this comment while explaining that the State had filed notice of its intent to seek general recidivist punishment under OCGA § 17-10-7 (a) and (c). Specifically, the court stated the following to Hayes:

I believe you’ve been recidivised by the State, which means if you’re sentenced—you are found guilty and you are sentenced, you could be facing up to 20 years. And by recidi-vised, because you have I think three priors, if you were sentenced to 20 years you will serve every day of that in prison.

The court then informed Hayes that he still had the opportunity to pursue a non-negotiated guilty plea, but that if he did not do so, “we are going to have a trial, and you are facing 20 years, and you would serve every day of it if you are found guilty And that was the sentence imposed by the court. So I want to be sure you understand.... I want to be sure you understand what you are looking at.”

At the time of Hayes’s guilty-plea hearing, OCGA § 17-10-7 (a) provided, in relevant part, as follows:

Except as otherwise provided in subsection (b) of this Code section, any person convicted of a felony offense in this state . . ., who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

And OCGA § 17-10-7 (c) provided, in relevant part, as follows at the time of Hayes’s guilty-plea hearing:

Except as otherwise provided in subsection (b) of this Code section, any person who, after having been convicted under the laws of this state for three felonies . . . , commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

As we have previously explained, subsections (a) and (c) of OCGA § 17-10-7 must be “read together” and, if both are applicable, “the trial court must apply them both.” Nevertheless, it is well established that “[ajlthough subsection (c) prohibits parole, it does not dispense with the trial court’s discretion to probate or suspend part of a sentence under OCGA § 17-10-7 (a).” In other words, “if the judge sentences a fourth-time recidivist to ten years, five to serve and five on probation, he must serve five years without parole.”

But in this case, contrary to the State’s assertions that the trial court only informed Hayes that he would not be eligible for parole, the court effectively advised Hayes that it had no intention of probating or suspending any portion of his sentence if he proceeded to trial, stating that he would spend “every day of [the 20-year sentence] in prison.” And this impermissible participation by the trial court in the plea-negotiation process “rendered the resulting guilty plea involuntary.” Accordingly, we reverse Hayes’s convictions and sentence, and we remand the case to the trial court. Upon remand, Hayes and the State may enter into new plea negotiations or, alternatively, Hayes may proceed to trial.

Decided May 18, 2016

Reconsideration denied June 3, 2016

Marion S. Hayes, pro se.

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellee.

Judgment reversed.

Phipps, P. J., and Peterson, J., concur.

       Count 2, aggravated assault, was nolle prossed by the State.

        See North Carolina v. Alford, 400 U.S. 25 (91 SCt 160, 27 LE2d 162) (1970).

        McDaniel v. State, 271 Ga. 552, 554 (2) (522 SE2d 648) (1999); accord Pride v. Kemp, 289 Ga. 353, 354 (711 SE2d 653) (2011); McCranie v. State, 335 Ga. App. 548, 551-52 (2) (b) (782 SE2d 453) (2016).

        See, e.g., McDaniel, 271 Ga. at 554 (2) (reversing conviction when the defendant “heard the trial court repeatedly state its reluctance to impose a death sentence and give 90 percent odds on a sentence of life without parole if permitted to impose sentence”); Gibson v. State, 281 Ga. App. 607, 610 (1) (636 SE2d 767) (2006) (reversing denial of motion to withdraw plea when “the trial judge improperly inserted himself into the plea bargaining process when he went further and advised [the defendant] that he would not give him the same sentence considerations in the event that he opted to proceed to trial rather than accept the proposed plea”); Skomer v. State, 183 Ga. App. 308, 309 (358 SE2d 886) (1987) (reversing denial of motion to withdraw guilty plea when trial judge had “stat[ed] that while he would consider giving the appellants probation if they pled guilty, he would not consider giving them probation if they stood trial and were found guilty by a jury”).

       OCGA § 17-10-7 (a) (2011); see a/so 2012 Ga.Laws, p. 899, § 4-4 (amending OCGA § 17-10-7 (a)).

       OCGA § 17-10-7 (c) (2011); see also 2012 Ga.Laws, p.899, § 4-4 (amending OCGA § 17-10-7 (c))-

        Thompson v. State, 265 Ga. App. 696, 698 (2) (595 SE2d 377) (2004); see also Pritchett v. State, 267 Ga. App. 303, 304 (1) (599 SE2d 291) (2004) (“A person convicted under OCGA § 17-10-7 (c) ‘shall not be eligible for parole until the maximum sentence has been served.’ The language in this Code section must be read along with OCGA § 17-10-7 (a), which requires a trial court to impose the maximum sentence when an individual is convicted of a second ‘felony punishable by confinement in a penal institution.’ Subsection (a) further provides, however, that ‘the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.’ ” (citations and punctuation omitted)).

        Pritchett, 267 Ga.App. at 304 (1); see Banks v. State, 225 Ga.App. 754, 757 (5) (484 SE2d 786) (1997) (“OCGA § 17-10-7 (a) required the trial court to impose the maximum sentence but gave it discretion to probate or suspend part of that sentence. Subsection (c), which prohibits parole, did not take away that discretion. The trial court’s failure to exercise its discretion was error, which we cannot find harmless under these circumstances.”); see also State v. Carter, 175 Ga. App. 38, 40 (332 SE2d 349) (1985) (“[OCGA § 17-10-7 (c)] thus requires imposition of the statutory maximum but requires only that the felon serve the entire term which the judge sentences him to serve without parole, and is consistent with the trial judge’s discretion under subsection (a) to award probation.”).

        Carter, 175 Ga. App. at 40 (emphasis omitted).

        See Skotner, 183 Ga. App. at 309 (reversing denial of motion to withdraw guilty plea when trial judge had “stat[ed] that while he would consider giving the appellants probation if they pled guilty, he would not consider giving them probation if they stood trial and were found guilty by a jury”).

        McDaniel, 271 Ga. at 553 (2); see also Gibson, 281 Ga.App. at 609-10 (1) (acknowledging that although trial court was “entitled to state that he would accept the [SJtate’s proposal and sentence [the defendant] to the statutory minimum if he agreed to plea,” “correctly informed [the defendant] that the decision of whether to accept the [SJtate’s offer or proceed to trial was exclusively [the defendant’s] and that he would keep an open mind and listen to the evidence before making a sentence determination in the event that [the defendant] went to trial and was convicted,” and “appropriately informed [the defendant] about the maximum sentence that he faced in the event that a jury convicted him of the crimes for which he was charged,” trial court nevertheless “improperly inserted himself into the plea bargaining process when he went further and advised [the defendant] that he would not give him the same sentence considerations in the event that he opted to proceed to trial rather than accept the proposed plea”).

       Because we reverse Hayes’s convictions and sentence based on his first enumeration of error, we need not address his remaining contentions as to the validity of his guilty plea. Hayes does not request that we reassign the case upon remand or otherwise address whether a judge who has impermissibly participated in the plea-negotiation process may continue to preside over the case. Therefore, we leave for another day the question of whether such cases should be reassigned. Cf. United States v. Corbitt, 996 F2d 1132, 1135 (11th Cir. 1993) (per curiam) (”[O]n remand the case should be reassigned to another judge even if there is no evidence that the judge is vindictive or biased, as a means to extend the prophylactic scheme established by [Federal Rule of Criminal Procedure] 11 [(governing pleas)] and to prevent the possible misimpression created by the judge’s [improper] participation [in the plea negotiations].”),
        abrogation on other grounds recognized by United States v. Davila, 749 F3d 982, 990-91 (I) & n.8 (11th Cir. 2014) (per curiam).


author: MILLER, Presiding Judge.

text:
    A16A0266.
    STATE v. DOTSON et al.
    (787 SE2d 262)
   MILLER, Presiding Judge.

Following a warrant search of his residence, Arthur James Dotson (“Dotson”) and his brother, Donte Dotson (collectively “the Dotsons”), were indicted for manufacturing marijuana, other drug offenses, and two firearms offenses. The Dotsons filed a motion to suppress the evidence seized during the search of Dotson’s residence. The trial court granted the Dotsons’ motion, and the State appeals, arguing that the trial court erred in concluding that the search of Dotson’s residence was not supported by probable cause. For the reasons set forth herein, we reverse.

On appellate review of a trial court’s ruling on a motion to suppress, we accept the trial court’s decisions with regard to questions of fact and credibility unless they are clearly erroneous. See Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013). The trial court’s application of the law to undisputed facts, however, is subject to de novo review. See State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009).

In Georgia, “a judicial officer may issue a search warrant, upon a showing of probable cause and the inclusion of particular descriptions of the place to be searched and the items to be seized[.]” Brogdon v. State, 287 Ga. 528 (697 SE2d 211) (2010); see also OCGA § 17-5-21 (a); Sullivan v. State, 284 Ga. 358, 360-361 (2) (667 SE2d 32) (2008) (“A search warrant will only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed.”) (citation and punctuation omitted). An affidavit in support of a search warrant “must allow [the] magistrate to make an independent determination of probable cause based upon [the] facts.” Shirley v. State, 297 Ga. 722, 724 (777 SE2d 444) (2015).

[The] magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Our duty in reviewing the magistrate’s decision in this case is to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrants. A magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court. . . . Even doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper.

(Citation and punctuation omitted.) Id. at 723-724; see also Glenn v. State, 288 Ga. 462, 466 (2) (b) (704 SE2d 794) (2010) (affidavit in support of search warrant contained sufficient information from which magistrate could determine that there was a fair probability that evidence of a crime would be found at the search sites).

So viewed, the record shows that, over a period of several weeks prior to June 9, 2014, a sergeant with the Effingham County Sheriff’s Office received complaints from neighbors regarding Dotson’s residence, which was located at 131 Murchison Road. The neighbors complained that Dotson was shooting guns outside his residence at all times of the day, causing several senior citizens to fear for their safety On June 9, the sergeant received another call indicating that Dotson was shooting firearms outside his residence as recently as the day before. Each caller stated that they feared Dotson and wished to remain anonymous.

The sergeant searched county incidents reports and found no other calls or complaints from the area residents other than one sick person call, which indicated to the sergeant that the residents were good citizens who called “solely out of concern for their safety” The sergeant then ran a criminal background check on Dotson. The background check showed that Dotson had several prior felony drug and weapons convictions, including prior felony convictions for carrying a concealed weapon and possession of marijuana. The sergeant included all of this information in an affidavit which he prepared in support of a warrant to search Dotson’s residence for “weapons including but not limited [to], handguns, long guns, weapons parts, ammunition and any other items related to firearms.”

In the affidavit, the sergeant described Dotson’s residence as a single-wide white mobile home with green shutters (hereinafter the “back trailer”) located at 131 Murchison Road. The back trailer was located directly behind another mobile home at the same address (hereinafter the “front trailer”). Finally, the affidavit set forth the sergeant’s credentials, including the fact that the sergeant was an investigator in the county sheriff’s drug enforcement unit and had been involved in numerous investigations associated with drug operations. Based on the sergeant’s affidavit, an Effingham County magistrate judge issued a warrant to search the back trailer located at 131 Murchison Road as well as its curtilage and outbuildings.

After the magistrate judge signed the warrant, the sergeant, a corporal, and three or four investigators searched the back trailer. The sergeant and the others drove to the back trailer, knocked on the door, and informed Dotson why they were there. Dotson and a woman came outside and stayed on the porch during the search. The officers seized two mason jars of marijuana from the back trailer and several spent shotgun shells from the yard behind the back trailer.

When the sergeant and the others finished the search of the back trailer, they drove past the front trailer. As they drove by, one of the investigators saw what appeared to be several marijuana plants in the yard around the front trailer’s back porch. When no one answered the door at the front trailer, the sergeant telephoned the sheriff’s office and gave them the information needed to apply for a second warrant to search the front trailer.

The sergeant also prepared a second affidavit, which described the front trailer as a single-wide tan mobile home with gray shutters that was located directly in front of the back trailer at 131 Murchison Road. The second affidavit stated that the front trailer had two wooden porches — a small one on the front and a larger one on the rear. The second affidavit also described the marijuana plants which the officers saw in plain view behind the front trailer after they searched the back trailer.

Based on the second affidavit, a magistrate judge issued a search warrant for the front trailer. During the warrant search of the front trailer, the officers seized more jars of marijuana, a shotgun, and scales. The officers also seized Dotson’s driver’s license and other personal effects.

1. The State contends that the trial court erred in concluding that the search of the back trailer was not supported by probable cause. We agree.

In this case, the affidavit in support of the first search warrant described the back trailer, its location, and the area to be searched. In relevant part, the affidavit also conveyed the following information to the issuing magistrate: Dotson’s neighbors had complained to police that Dotson was shooting guns outside his residence at all times of the day; several senior citizens feared for their safety; and Dotson had a felony record, including convictions for concealed weapons charges and marijuana possession.

These facts — namely, the multiple calls from concerned citizens and Dotson’s prior convictions for felony drug and firearms offenses — were sufficient to allow the magistrate to make an independent determination of probable cause that a crime was being or had been committed and supported the magistrate’s decision to issue the first search warrant. See Glenn, supra, 288 Ga. at 466 (2) (b) (applications for search warrant of defendant’s apartment contained sufficient information from which judicial officer could determine that evidence of a crime would be found); Galloway v. State, 332 Ga. App. 389, 392 (772 SE2d 832) (2015) (information relayed to magistrate provided a substantial basis for magistrate’s finding of probable cause to issue search warrant). Moreover, in determining that probable cause existed to issue the search warrant, the magistrate was entitled to consider the totality of the information before him, including the hearsay statements of the anonymous callers, because there was a substantial basis for crediting that hearsay, i.e., multiple calls from frightened senior citizens, who each reported that Dotson was shooting firearms outside his residence at all times of the day, combined with Dotson’s prior felony convictions for drug and weapons offenses. See Ward v. State, 234 Ga. 882, 883 (218 SE2d 591) (1975) (“Hearsay can be the basis for issuance of a warrant so long as there is a substantial basis for crediting the hearsay.”) (citation and punctuation omitted); Tukes v. State, 238 Ga. 114, 115 (1) (230 SE2d 841) (1976) (defendant’s contention that warrant lacked probable cause because it was partially based upon hearsay was meritless where affidavit set forth ample facts supporting magistrate’s finding of probable cause).

2. The State also contends that the search of the front trailer was supported by probable cause. Again, we agree, because the officers saw the marijuana plants in plain view in the yard around the front trailer’s back porch, immediately after they finished the lawful search of the back trailer, and the officers then obtained a warrant to search the front trailer. Accordingly, the officers lawfully seized the marijuana and other items found in and around the front trailer. See Glenn v. State, 285 Ga. App. 872, 874 (648 SE2d 177) (2007) (holding that plain view doctrine authorizes officer to seize illegal item when officer is lawfully in a place where he can see the item and officer gains lawful access to item in plain view by obtaining a search warrant).

Decided June 3, 2016

Richard A. Mallard, District Attorney, Brian A. Deal, Assistant District Attorney, for appellant.

Stuart H. Patray, Stephen R. Yekel, Russell R. Jones, for appel-lees.

In sum, both the warrant search of the back trailer and the subsequent warrant search of the front trailer were lawful and were supported by probable cause. Accordingly, the trial court erred in granting the Dotsons’ motion to suppress.

Judgment reversed.

McFadden and McMillian, JJ., concur.

       The back trailer was furnished only with some exercise equipment, a sleeping bag, and a pillow.

       Compare State v. Lejeune, 276 Ga. 179, 181-182 (1) (576 SE2d 888) (2003) (affidavitbased on unsupported hearsay did not provide magistrate with substantial basis for concluding that probable cause existed to issue search warrant).


text:
    A16A0481.
    BROCK v. C & M MOTORS, INC.
    (787 SE2d 259)
   Peterson, Judge.

Yolanda Brock appeals the trial court’s orders granting defendant C & M Motors, Inc. (“C & M”)’s plea in abatement and awarding attorneys’ fees to C & M. She argues that the trial court erred in (1) finding that she could not maintain her renewal action given the pendency of an action she filed previously; and (2) awarding $2,885 in attorneys’ fees. Because the pendency of the original action was not a basis to dismiss Brock’s claims, we reverse the trial court’s order granting the plea in abatement. Because the award of fees appears to be based at least in part on that erroneous dismissal, we vacate the fee award.

Brock sued C & M in April 2012 (“the First Case”), alleging breach of contract, fraud, and other claims in connection with her purchase of a car from C & M. C & M filed an answer that included a counterclaim for breach of contract against Brock, along with a request for admissions. Nearly two years later, on July 21, 2014, Brock filed a notice that she was dismissing her case without prejudice to refiling. Two days later, Brock filed a motion to “rescind” her dismissal of the case and reinstate her claims, explaining that she “mistakenly requested a dismissal without prejudice without realizing the existence of a counterclaim.” On that same day, Brock filed a notice saying she had sent C & M responses to its request for admissions. On August 1, 2014, C & M made separate filings indicating that it (1) intended to proceed on its counterclaim notwithstanding the dismissal of Brock’s claims and (2) objected to Brock’s motion to rescind her dismissal. C & M posited that Brock had initially attempted to dismiss her suit in a (misguided) attempt to avoid the consequences of having failed to respond to C & M’s request for admissions. After a hearing, the trial court denied Brock’s motion to rescind her dismissal, saying Brock’s failure to notice the existence of C & M’s counterclaim was not a reason to grant her motion to rescind.

Brock then tried unsuccessfully to reinstate her suit through a new action. On January 21, 2015, Brock filed a renewal action (“the Second Case”), raising the same claims as in her original suit. C & M filed a plea in abatement, arguing that the case should be terminated because it was duplicative of the First Case and prohibited by OCGA §§ 9-2-5 and 9-2-44. The trial court granted the motion. Brock filed a notice of appeal.

While this appeal was pending, C & M filed a motion seeking $2,885 in costs and attorneys’ fees under OCGA § 9-15-14. C & M argued that Brock’s claim of a right to file a renewal action lacked substantial justification, and the filing of the duplicative action abused the litigation process. The trial court granted the motion. Brock filed an amended notice of appeal.

1. Brock argues that the trial court erred in dismissing her renewal action because (1) C & M failed to preserve its counterclaim; and (2) even if C & M preserved its counterclaim, OCGA § 9-2-61 does not prohibit the filing of a renewal action and, therefore, her renewal action is not subject to abatement under OCGA §§ 9-2-5 and 9-2-44. Assuming without deciding that C & M preserved its counterclaim, we agree with Brock that her renewal action was not subject to abatement.

Consistent with the position taken by Brock in her appeal, the trial court held that under OCGA § 9-2-61, Brock was “entitled to file a renewal of her voluntarily dismissed action.” Therefore, the question before us is whether the trial court nonetheless properly granted C & M’s plea in abatement as filed under OCGA §§ 9-2-5 and 9-2-44. C & M’s plea in abatement was akin to a motion to dismiss, and we review a trial court’s ruling on a motion to dismiss under the de novo standard of review. See Sadi Holdings, LLC v. Lib Props., Ltd., 293 Ga. App. 23, 24 (666 SE2d 446) (2008) (reviewing dismissal under prior pending action doctrine).

OCGA § 9-2-5(a) provides:

No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different, times, the pendency of the former shall be a good defense to the latter.

OCGA § 9-2-44(a) says:

A former recovery or the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement. However, if the first action is so defective that no recovery can possibly be had, the pendency of a former action shall not abate the latter.

The two statutes “are closely related in effect and are to be considered and applied together.” Aiken Dermatology & Skin Cancer Clinic, P.A. v. Davlong Systems, Inc., 314 Ga. App. 699, 703 (2) (725 SE2d 835) (2012) (citation and punctuation omitted). “[T]he general rule under these provisions is that when there are two lawsuits involving the same cause of action and the same parties that were filed at different, times but that both remain pending in Georgia courts, the later-filed suit must be dismissed.” Id. (citation and punctuation omitted). The purpose of the rule “is to ensure judicial economy, to avoid inconsistent judgments, and to prevent harassment of the parties through multiple proceedings.” Jenkins v. Crea, 289 Ga. App. 174, 176 (656 SE2d 849) (2008) (footnote omitted); see also DOCO Credit Union v. Chambers, 330 Ga. App. 633, 636 (1) (768 SE2d 808) (2015) (rule is “rooted in recognition of the fact that no one should be twice harassed, if it appears to the Court that it is for one and the same cause”) (punctuation, footnote, and emphasis omitted).

It is not clear whether C & M bases its position that the Second Case was due to be abated on the fact that Brock brought identical claims in the First Case, on the fact that C & M’s counterclaim remains pending in the First Case, or both. In pressing its plea in abatement, C & M emphasized both that the two cases involved “the same parties, the same transaction, the same claims, and the same issues for adjudication” and that the First Action was still pending. After reciting the parties’ arguments, the trial court noted that a counterclaim was pending in the First Case and concluded without further analysis that it was persuaded by C & M’s arguments. But neither the identical nature of Brock’s claims originally present in both cases nor the pendency of a counterclaim was cause for abatement here.

By its terms, OCGA § 9-2-5(a) precludes simultaneous prosecution of the same claims. Of course, Brock is not prosecuting the same claims simultaneously, given that she dismissed her claims in the First Case. OCGA § 9-2-44(a) refers to a “former recovery or the pendency of a former action for the same cause of action [.] ” The First Case cannot be said to have produced any “recovery” for Brock. And by the terms “pendency of a former action for the same claim,” OCGA § 9-2-44(a) provides for abatement based on a claim that is still pending. The term “pendency” refers to “the state of being pendent or undecided; the state of an action . . . after it has been begun, and before the final disposition of it.” Black’s Law Dictionary 1134 (6th ed. 1990). That OCGA § 9-2-44(a)’s use of the term pen-dency refers to a claim that is still pending is confirmed by the use of the present tense in the second sentence of the subsection. See OCGA § 9-2-44(a) (“if the first action is so defective that no recovery can possibly be had, the pendency of a former action shall not abate the latter”). Clearly, Brock’s claims cannot be said to be pending in the First Case. Although C & M makes much of the pendency of its counterclaim in the First Case, that claim is wholly different from Brock’s claims in the Second Case, and the fact that the counterclaim remains pending does not change our analysis. The trial court erred in finding that Brock’s claims in the Second Case were abated by the First Case, and we therefore reverse its ruling dismissing those claims.

2. Brock also appeals the trial court’s award of attorneys’ fees to C & M. Although the trial court did not specify its reasons for its award of fees, C & M’s motion for fees clearly was predicated on the premise that, because of the pendency of the First Case, Brock was not entitled to file her claims in the Second Case as they were redundant. Given that the trial court’s award of fees appears to be based at least in part on its erroneous dismissal, we vacate that award.

Decided June 3, 2016.

Alex Simanovsky & Associates, Alex Simanovsky, Zachary C. Meeks, for appellant.

Fred A. Zimmerman, for appellee.

Judgment reversed in part and vacated in part.

Phipps, P. J., and Dillard, J., concur.

       Brock argues that C & M failed to preserve its counterclaim because it did not properly object to her voluntary dismissal of her suit and then contested her motion to rescind her dismissal.