text:
    A14A0603.
    DOE v. ARCHDIOCESE OF ATLANTA et al.
    (761 SE2d 864)
   Dillard, Judge.

Jane Doe appeals from the trial court’s dismissal of her lawsuit against the Archdiocese of Atlanta and Holy Cross Catholic Church (collectively, “the Church”), on the ground that the suit, filed using a pseudonym, was a legal nullity. Because we hold that the trial court erred in concluding that the complaint was void, we reverse. We further hold that the trial court has the discretion to consider whether Doe is entitled to proceed under a pseudonym and, therefore, remand the case for consideration of that issue in a manner consistent with this opinion.

The undisputed facts are as follows. On September 4, 2012, Doe filed a complaint against the Church using the pseudonym “Jane Doe” and alleged that she, now the age of majority, had been the victim of childhood sexual abuse from a former Church employee. Three days later, Doe’s counsel sent the Church a copy of the complaint with a letter revealing Doe’s identity and explaining that, “given the sensitive nature of the allegations,” the complaint had been filed under a pseudonym in order “to protect the identity and avoid future injury to [Doe]” and asking the Church to advise if it objected to her doing so. And then on September 14, 2012, Doe filed a “notice of disclosure of identity of plaintiff Jane Doe,” in which she identified herself under seal to the trial court. Each of the foregoing actions transpired prior to the expiration of the statute of limitations on Doe’s claims.

The Church answered and filed a motion to dismiss, asserting that Doe’s complaint was a procedural nullity because it had not been filed in the name of a real person and that, as the statute of limitations had since expired, she could not amend her complaint so as to relate back to the originally filed pleading. The trial court agreed and dismissed Doe’s lawsuit with prejudice. This appeal follows.

We begin by noting that this case involves two independent issues for our consideration. The first is whether Doe’s filing of a lawsuit using a pseudonym rendered it a nullity, such that Doe is now barred—due to the expiration of the statute of limitations-—-from amending the complaint or otherwise litigating her claims against the Church. If not, the second question is whether Doe must amend her complaint so as to reveal her identity, or whether she may proceed with the lawsuit using a fictitious name. For the reasons set forth infra, we answer the first question in the negative and remand this case to the trial court for it to exercise its discretion in determining the second issue.

1. In general, Georgia law mandates that parties to a lawsuit identify themselves in their respective pleadings and that every action be prosecuted in the name of the real party in interest. And prior to the passage of the Civil Practice Act, the Supreme Court of Georgia, in Western and Atlantic R. Co. v. Dalton Marble Works held that if a lawsuit is “brought in a name which is neither that of a natural person, a corporation, nor a partnership, it is a mere nullity” and, as such, cannot be amended by inserting the name of the proper party in interest, “there being nothing to amend by.” It is this language that both the Church and trial court contend renders Doe’s complaint a nullity.

When passing the Civil Practice Act in 1966, however, the General Assembly expressly provided that

[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Furthermore, the General Assembly included an explicit mandate that parties be freely permitted to amend pleadings* and that “[a]ll pleadings ... be so construed as to do substantial justice.”

After the enactment of the Civil Practice Act, our Supreme Court reexamined the issue presented in Dalton Marble Works in order to consider whether under that Act “pleadings may be amended to substitute a named party plaintiff when suit is filed in the name of a party which is not a legal entity.” The Court concluded that, contrary to the preexisting law, when “the party plaintiff named in a complaint is not a legal entity but is reasonably recognizable as a misnomer for a legal entity which is the real party plaintiff, the misnomer maybe corrected by amendment.” In so doing, the Court recognized the forgiving policies contained in the Civil Practice Act, explaining that “pleadings are not an end in themselves but only a method to assist in reaching the merits of the case.” And since that time, Georgia’s appellate courts have readily permitted amendment of complaints to substitute proper party plaintiffs in the absence of a showing of harm to the defendants.

Given the foregoing analytical framework, we conclude that the trial court erred in holding that Doe’s complaint was a nullity due to her use of a pseudonym. Significantly, Doe revealed her identity to both the trial court and the Church prior to the expiration of the statute of limitations. And for this reason, we reject the Church’s overly rigid argument that, because Doe was not publicly identified, her complaint failed to import a natural person and should be treated as a nullity (i.e., as though Doe did not exist). Doe is indeed a natural person; it is only her name that is (at least temporarily) being shielded from public disclosure. But neither the trial court nor the Church were left wondering as to who was asserting these claims, nor was either misled or deceived in any way. Under these circumstances, there is no injustice in allowing Doe’s lawsuit to remain pending and, to the extent that the trial court deems it necessary to do so (see discussion infra), in permitting her to amend the complaint.

2. The next question is whether Doe must publicly reveal her identity or whether she is permitted instead to prosecute her case using a pseudonym. We leave this inquiry in the first instance to the sound discretion of the trial court.

Georgia law requires that parties disclose their names injudicial pleadings and presumes the public’s right to access this information in addition to the entirety of the court records. This is not merely a procedural formality. Indeed, Georgia has long recognized that the right to public access to judicial proceedings “protects litigants both present and future, because justice faces its gravest threat when courts dispense it secretly.” Additionally, “First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings.”

But the presumption of open judicial proceedings is not absolute. Georgia law permits a court to limit or even prohibit public access to its records in exceptional circumstances if it determines “that the harm otherwise resulting to the privacy of a person in interest clearly outweighs the public interest.” And this Court has recognized, on at least one occasion, that a trial court may exercise its discretion to allow a party to proceed with a lawsuit under a pseudonym. In Doe v. Hall, we held that the trial court retained the discretion to determine whether an HIV-positive plaintiff could use a pseudonym to prosecute a case against his- doctor for improperly disclosing confidential medical information.

Likewise, although we are certainly not bound by decisions from other jurisdictions, there is a considerable body of precedent for departing from a “procedural custom fraught with constitutional overtones to accommodate a plaintiff’s asserted need to proceed anonymously through the use of a fictitious name.” And numerous courts— both federal and state—have adopted balancing tests designed to weigh the countervailing interests involved when a plaintiff seeks to shield his or her name; and, more specifically, several have determined that claims predicated upon allegations of childhood sexual abuse may invoke a privacy interest so great as to warrant the unusual practice of allowing the plaintiff to litigate using a pseudonym.

We agree with courts that have concluded that a trial court may, in extraordinary cases, “employ its sound discretion in determining whether or not a pseudonym may be used ..., considering the effects of such decision on the rights of the individual parties and considering the right of the public to open judicial proceedings.” In so doing, the ultimate test is whether the plaintiff has a “substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.” And in making its determination, the trial court can consider many factors, including, but not limited to, the following: (1) whether the lawsuit involves “matters of sensitive and highly personal nature”; (2) whether the plaintiff or an innocent non-party risks suffering physical or psychological harm if the plaintiff is identified, taking into consideration the age of the plaintiff; and (3) whether the plaintiff’s anonymity imposes a risk of fundamental unfairness to the opposing party. In considering the foregoing factors, as well as any other relevant considerations, we emphasize that “[e]conomic harm or mere embarrassment are not sufficient to override the strong public interest in disclosure.”

And to the extent the trial court determines that anonymity in the case sub judice is warranted, the court is free to “fashion its order on the use of a pseudonym, as justice may require, and indeed, must ensure that the rights of the parties to full discovery is not interfered with by the use of a pseudonym.” The trial court should continuously monitor the proceedings so as to minimize the impact on the defendant’s rights and “should permit the use of [the] plaintiff’s real name [when] such use is required in order to ensure adequate discovery.” Finally, the trial court is free to use other devices, “such as sealing certain records and orders of nondisclosure in conjunction with the plaintiff’s use of a pseudonym, in order to balance lawful discovery requirements, while providing all reasonable confidentiality.

Decided July 15, 2014 —

Don C. Keenan, Robertson, Bodoh & Nasrallah, Mathew G. Nasrallah, for appellent.

Smith, Gambrell & Russell, Stephen M. Forte, DanaM. Richens, for appellees.

In sum, we hold that Doe’s complaint filed using a pseudonym is not a legal nullity and reverse the trial court’s ruling on that issue. We further remand the case for the trial court’s consideration of whether Doe is permitted to proceed under a fictitious name in a manner consistent with this opinion.

Judgment reversed and case remanded with direction.

Doyle, P. J., and Miller, J., concur.

       Counsel for the Church advised Doe’s counsel that it would not consent to Doe proceeding with her complaint using a pseudonym.

        See OCGA § 9-3-33.1 (b) (“Any civil action for recovery of damages suffered as a result of childhood sexual abuse shallbe commenced within five years of the date the plaintiff attains the age of majority.”).

        See OCGA § 9-11-10 (a) (requiring a complaint to “include the names of all the parties . . .”).

        See OCGA § 9-11-17 (a) (“Every action shall be prosecuted in the name of the real party in interest.”).

       122 Ga. 774 (50 SE 978) (1905).

        Id. at 775.

        Id. at 776.

        See also Russell v. O’Donnell, 132 Ga. App. 294, 295 (2) (208 SE2d 107) (1974) (opinion relied upon by the trial court in its order), abrogation by statute recognized in Community Magazine, LLC v. Color Xpress, 326 Ga. App. 330 (756 SE2d 564) (2014).

        See OCGA § 9-11-1 et seq.

       OCGA § 9-11-17 (a).

        See OCGA § 9-11-15 (a) (“A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order. Thereafter the party may amend his pleading only by leave of court or by written consent of the adverse party. Leave shall be freely given when justice so requires.”).

       OCGA § 9-11-8 (f).

       122 Ga. 774.

        Block v. Voyager Life Ins. Co., 251 Ga. 162, 163 (1) (303 SE2d 742) (1983).

        Id.

        Id. (emphasis supplied).

        See Franklyn Gesner Fine Paintings, Inc. v. Ketcham, 252 Ga. 537, 538, 539 (314 SE2d 903) (1984) (disapproving of this Court’s “overly restrictive construction” of OCGA § 9-11-17 (a) and allowing substitution of the corporation—the real party in interest—for the individual by whom the corporation was closely held because there was “no injustice in permitting the amendment”); Color Xpress, 326 Ga. App. at 335 (3) (permitting substitution in lawsuit filed using a trade name while recognizing that, in Block, the Supreme Court “[ijmplicitly disapprov[ed]” that such suits were “mere nullities”); Memar v. Styblo, 293 Ga. App. 528, 531 (667 SE2d 388) (2008) (allowing amendment to substitute the administrator of the estate as the proper party plaintiff after the expiration of the repose period in a medical-malpractice action originally filed in the name of the estate, a non-legal entity); Rooks v. Tenet Health System GB, Inc., 292 Ga. App. 477, 479 (1) (a) (664 SE2d 861) (2008) (reversing trial court’s dismissal of wrongful-death action and remanding case to substitute real party in interest when originally-named plaintiff lacked capacity to bring suit); see also Comm. for Better Gov’t v. Black, 216 Ga. App. 173, 174 (1) (453 SE2d 772) (1995); U.S. Xpress, Inc. v. W. Timothy Askew & Co., 194 Ga. App. 730, 731 (391 SE2d 707) (1990).

       We leave for another day the question of whether the failure to disclose the identity of a pseudonym to the trial court and/or opposing party prior to the expiration of a statute of limitations would require a different result.

       In a nutshell, the Church is arguing that it is never permissible to file a lawsuit in Georgia using a pseudonym. But if a complaint brought by someone using a pseudonym is a nullity, and thus is void from the very moment it is filed, then any party who seeks to shield his or her identity from the public has no means by which to do so. But see Qualls v. Rumsfeld, 228 FED 8, 10 (D.D.C. 2005) (noting that although the court “has not tackled the propriety of pseudonymous litigation head on,... [it] has developed an ad-hoc process that accommodates the practice [by allowing a] litigant seeking to proceed under pseudonym [to] ask the Chief Judge, ex parte, for leave to file a complaint omitting the litigant’s real name and full address.”). And if a party is unable to invoke the jurisdiction of a court without first revealing his or her name, then pseudonymous lawsuits are a dead letter in our state. Suffice it to say, such a rule would place Georgia far outside the mainstream of American jurisprudence, and we decline to adopt it.

       It is worth noting that there are numerous published opinions of this Court and the Supreme Court of Georgia involving lawsuits brought by a plaintiff using a pseudonym. See, e.g., Doe v. Prudential-Bache/A.G. Spanos Realty Partners, L.P., 268 Ga. 604, 604 (492 SE2d 865) (1997) (lawsuit involving claims brought by a Jane Doe against the owners and operators of the apartment complex in which she lived after she was raped and robbed when parking her car underneath the apartment building); In re Doe, 262 Ga. 389, 389 (418 SE2d 3) (1992) (a declaratory-judgment action involving “several difficult issues relating to medical decision-making for a terminally ill child[,] Jane Doe . . . .”); Doe I v. Young Women’s Christian Ass’n of Greater Atlanta, Inc., 321 Ga. App. 403, 404 n.1 (740 SE2d 453) (2013) (“The appellants are using pseudonyms in this action pursuant to a protective order entered by the trial court.”); Doe v. Andujar, 297 Ga. App. 696, 696 n.1 (678 SE2d 163) (2009) (“The appellants are using pseudonyms in this action pursuant to a protective order entered by the trial court.”); Metropolitan Atlanta Rapid Transit Auth. v. Doe, 292 Ga. App. 532, 533 n.1 (664 SE2d 893) (2008) (“The plaintiff’s actual name was not used so as to protect her privacy.”); Doe v. HGI Realty, Inc., 254 Ga. App. 181, 181 (561 SE2d 450) (2002) (lawsuit brought by a Jane Doe “for damages after she was robbed and sexually assaulted while working in a store . . . .”); Post Properties, Inc. v. Doe, 230 Ga. App. 34, 34 (495 SE2d 573) (1997) (lawsuit brought by a Jane Doe against the owner and operator of the apartment complex where she lived after she was raped inside her apartment); Doe v. Briargate Apartments, Inc., 227 Ga. App. 408, 408 (489 SE2d 170) (1997) (same); Doe v. Bd. of Regents of Univ. Sys. of Ga., 215 Ga. App. 684, 684 (452 SE2d 776) (1994) (“The plaintiff, using the pseudonym Jane Doe, filed a complaint against the Board of Regents of the University System of Georgia seeking a temporary restraining order and preliminary and permanent injunctive relief against disclosure.”).

        See Ga. Unif. Sup. Ct. R. 21 (“All court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth [in Rule 21].”); In re Gwinnett Cnty. Grand Jury, 284 Ga. 510, 511 (668 SE2d 682) (2008); Green v. Drinnon, Inc., 262 Ga. 264, 264 (1) (417 SE2d 11) (1992) (“In this state, the public and the press have traditionally enjoyed a right of access to court records.” (punctuation omitted)); see also Judicial Qualifications Comm’n Op. (Aug. 28,2013) (noting that “[a]bsent specific legal authority, public access to court proceedings should be unfettered and unobstructed.”).

        Atlanta Journal & Atlanta Constitution v. Long, 258 Ga. 410, 411 (1) (369 SE2d 755) (1988) opinion corrected, 377 SE2d 150 (1989); see State v. Brown, 293 Ga. 493, 496 (1) (748 SE2d 376) (2013) (affirming the dismissal of a criminal indictment because it was not returned in a courtroom open to the public);R. W. Page Corp. v. Lumpkin, 249 Ga. 576, 576, n.1 (292 SE2d 815) (1982) (“This court has sought to open the doors of Georgia’s courtrooms to the public and to attract public interest in all courtroom proceedings because it is believed that open courtrooms are a sine qua non of an effective and respected judicial system which, in turn, is one of the principal cornerstones of a free society.”).

        Doe v. Stegall, 653 F2d 180, 185 (IV) (5th Cir. 1981); accord Doe v. Barrow County, 219 FRD 189, 191-94 (II), (III) (N.D. Ga. 2003); see generally Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 575-76 (III) (A) (100 SCt 2814, 65 LE2d 973) (1980) (“The First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” (punctuation omitted)); see also id. at 579 (III) (C), n.17 (recognizing that “[wjhether the public has a right to attend trials of civil cases [was] a question not raised by [Richmond Newspapers, Inc.], but [noting] that historically both civil and criminal trials have been presumptively open”).

       Ga. Unif. Super. Ct. R. 21.2; see Ga. Unif. Super. Ct. R. 21.1 (“Upon motion by any party to any civil or criminal action, or upon the court’s own motion, after hearing, the court may limit access to court files respecting that action. The order of limitation shall specify the part of the file to which access is limited, the nature and duration of the limitation, and the reason for limitation.”); Ct.App.R. 45 (j) (“All pleadings, briefs, orders, transcripts, exhibits and any other written or recorded material that are part of the record [of a Parental Notification Act case] shall be considered and treated by the Court as confidential. Upon conclusion of the appellate proceedings, the record shall be sealed, and the contents of the record shall not be disclosed, except upon order of this Court or the Supreme Court of Georgia.”); Savannah Coll. of Art & Design v. Sch. of Visual Arts, Inc., 270 Ga. 791, 793 (515 SE2d 370) (1999) (“|l]n cases of clear necessity, identified as instances where privacy rights are in jeopardy, the right of public access should yield.”); Long, 258 Ga. at 411 (1) (noting that although the purpose of Rule 21 “is to preserve the traditional right of access” to court records, it “also preserves another traditional right—the right of superior courts in exceptional cases to shield court records from public view”); see also Nixon v. Warner Commc’ns, Inc., 435 U. S. 589, 598 (II) (A) (98 SCt 1306, 55 LE2d 570) (1978) (“It is uncontested . . . that the right to inspect and copy judicial records is not absolute.”).

       260 Ga. App. 421 (579 SE2d 838) (2003).

        See id. at 423.

        Stegall, 653 F2d at 185 (IV); see Doe v. Frank, 951 F2d 320, 324 (11th Cir. 1992) (“A plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity.”); see also Doe v. Blue Cross & Blue Shield United of Wis., 112 F3d 869, 872 (7th Cir. 1997) (noting that “fictitious names are allowed when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties or witnesses”); Stegall, 653 F2d at 186 (IV) (allowing a mother and her children to proceed under fictitious names in their lawsuit challenging the constitutionality of prayer in public schools due to “the special status and vulnerability of the child-litigants, the showing of possible threatened harm and serious social ostracization based upon militant religious attitudes, and the fundamental privateness of the religious beliefs. . . .”); Doe v. Barrow County, 219 FRD 189, 191-94 (II), (III) (N.D. Ga. 2003) (allowing plaintiff to proceed under a pseudonym when challenging the display of the Ten Commandments at the courthouse because, in part, “religion is perhaps the quintessentially private matter”); see also Roe v. Wade, 410 U. S. 113, 120 (II) n.4 (93 SCt 705, 35 LE2d 147) (1973).

        See, e.g., Plaintiff B v. Francis, 631 F3d 1310, 1317 (III) (11th Cir. 2011) (reversing trial court’s denial of two out of four plaintiff’s petition to proceed under a pseudonym because “[t]he issues involved .. . could not be of a more sensitive and highly personal nature—they involve descriptions of the [pjlaintiffs in various stages of nudity and engaged in explicit sexual conduct while they were minors who were coerced by the [djefendants into those activities”); Doe v. St. John’s Episcopal Parish Day School, Inc., 997 FSupp.2d 1279, 1290 (III) (1) (c) (4) (M.D. Fla. 2014) (“Plaintiff’s allegations of childhood sexual abuse by members of the clergy and employees of the Church, School, and/or Diocese while he was a minor are... of a sensitive and highly personal nature... and therefore [pjlaintiff may proceed anonymously at this time.”); John Doe 140 v. Archdiocese of Portland in Oregon, 249 FRD 358, 361 (I) (D. Or. 2008) (allowing alleged victim of childhood sexual assault to proceed anonymously in part because “[t]he experience of sexual abuse can be deeply psychologically traumatic, and public knowledge of such abuse can trigger new trauma even years after the fact”); Doe No. 2 v. Kolko, 242 FRD 193, 195 (E.D. N.Y. 2006) (“[Sjexual assault victims are a paradigmatic example of those entitled to a grant of anonymity.”); Does v. Covington Cnty. Sch. Bd., 884 FSupp. 462, 465 (II) (M.D. Ala. 1995) (granting plaintiffs leave to proceed without disclosing their names while “recognizing the vulnerability and tender age of each plaintiff, as well as the sensitive issues involved in the case”); Doe v. Brown, 2009 WL 5322462, at *3 (Conn. Super. Ct. Dec. 11, 2009) (holding “the plaintiff’s use of a pseudonym will serve the overriding interest of protecting the plaintiff from exposure in the community of her private situation, which involves her allegations that... she was sexually, physically, and emotionally abused. . . .”). But see Doe v. Wolowitz, Case No. 01-73907, 2002 WL 1310614 (E.D. Mich. May 28, 2002) (denying plaintiff’s motion to use a fictitious name in lawsuit alleging sexual abuse by her psychologist because “[tjhis will be a case involving direct and personal attacks upon the reputation and integrity of the defendant and in which personal credibility will play a large role in the issues in the case”); Doe v. Shakur, 164 FRD 359, 362 (S.D. N.Y. 1996) (balancing several factors, including that media was already aware of plaintiff’s residence and place of employment, before concluding that the “public humiliation and embarrassment” associated with her allegations of sexual assault were insufficient to overcome the presumption of public access to the parties’ names in judicial proceedings); Doe v. Univ. of Rhode Island, 28 Fed. R. Serv.3d 366 (D. R.I. 1993) (requiring plaintiff to reveal her identity in suit against college alleging that she was sexually assaulted as a result of school’s negligence in part because her “claim [did] not involve any admission on her part that she has or will be engaged in any illegal activity, that she has violated the law or that she willingly engages in unaccepted sexual practices”).

        Hall, 260 Ga. App. at 423.

        Frank, 951 F2d at 323; see also Barrow County, Ga., 219 FRD at 193 (III).

        Francis, 631 F3d at 1316 (III); see generally James v. Jacobson, 6 F3d 233, 238 (III) (4th Cir. 1993) (collecting relevant citations); Frank, 951 F2d at 324; Shakur, 164 FRD at 361.

       Additional factors to consider in other types of cases have included whether the suit challenges a governmental activity, and whether the plaintiff is “compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution.” Stegall, 653 F2d at 185 (TV); see also generally Frank, 951 F2d at 323; Barrow County, Ga., 219 FRD at 193 (III). We note that the cases cited throughout this opinion contemplate varied versions of the factors set forth supra. We have attempted to draw from these cases and create a condensed, non-exhaustive list of factors so as to provide guidance to the trial courts, but in so doing, we do not intend to create a rigid, inflexible test for determining the propriety of party anonymity. See Doe v. Hartz, 52 FSupp.2d 1027, 1046 (II) (A) (3) (a) (N.D. Iowa 1999). We further note that “[t]he mere presence of one factor [is] not meant to be dispositive, but rather, these factors were highlighted merely as factors deserving consideration.” Id..; see also Stegall, 653 F2d at 185 (IV).

        Doe v. Bell Atl. Bus. Sys. Servs., Inc., 162 FRD 418, 420 (II) (D. Mass. 1995); see also Frank, 951 F2d at 324 (“[T]he fact that [a plaintiff] may suffer some personal embarrassment, standing alone, does not require the granting of his (or her] request to proceed under a pseudonym.”).

        Hall, 260 Ga. App. at 423.

        Id.

        Id.

        See Jacobson, 6 F3d at 238 (III) (“The decision whether to permit parties to proceed anonymously at trial is one of many involving management of the trial process that for obvious reasons are committed in the first instance to trial court discretion.”).


source: Caselaw Access Project

author: DOYLE, Presiding Judge. DILLARD, Judge,

license: Public Domain

text:
    A14A0724.
    CITY OF HAPEVILLE et al. v. GRADY MEMORIAL HOSPITAL CORPORATION.
    (761 SE2d 871)
   DOYLE, Presiding Judge.

Grady Memorial Hospital Corporation d/b/a Grady Health System (“the Hospital”) filed a complaint against the City of Hapeville and the Police Department of the City of Hapeville (collectively “the City”), alleging that the City failed to pay for medical services provided by the hospital to four prisoners in the custody of the City.* The City responded, arguing that it was immune from suit. The trial court found that pursuant to Cherokee County v. North Cobb Surgical Assoc. P.C., the City had waived sovereign immunitybasedonOCGA § 42-5-2. For the reasons that follow, we affirm.

The brief record before us reveals that the City transported four prisoners to the Hospital for treatment. The Hospital now seeks payment from the City in the amount of $81,694.74 for the cost of the services rendered to those prisoners. The City filed a motion to dismiss, arguing, inter alia, that it was immune from suit. In denying the City’s motion to dismiss, the trial court found that the Hospital “is suing for payment of services rendered. This puts the instant case in line with Cherokee County v. North Cobb Surgical Assoc. P.C., and removes the matter from sovereign immunity analysis. Alternatively, the legislature has waived the [City’s] sovereign immunity by statute.” The City appeals this ruling, arguing that the trial court erred by finding that it was not immune from suit. We review this ruling under the de novo standard of review.

1. The Hospital maintains that the trial court correctly determined that OCGA § 42-5-2 provides a waiver of sovereign immunity in this case, which allows it to pursue its claims that the City has breached a duty to pay for the medical services rendered to the prisoners by the Hospital.

OCGA § 42-5-2 (a) states:

Except as provided in subsection (b) of this Code section, it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any needed medical and hospital attention; to defend any habeas corpus or other proceedings instituted by or on behalf of the inmate; and to bear all expenses relative to any escape and recapture, including the expenses of extradition. Except as provided in subsection (b) of this Code section, it shall be the responsibility of the department to bear the costs of any reasonable and necessary emergency medical and hospital care which is provided to any inmate after the receipt by the department of the notice provided by subsection (a) of Code Section 42-5-50 who is in the physical custody of any other political subdivision or governmental agency of this state, except a county correctional institution, if the inmate is available and eligible for the transfer of his custody to the department pursuant to Code Section 42-5-50. Except as provided in subsection (b) of this Code section, the department shall also bear the costs of any reasonable and necessary follow-up medical or hospital care rendered to any such inmate as a result of the initial emergency care and treatment of the inmate. With respect to state inmates housed in county correctional institutions, the department shall bear the costs of direct medical services required for emergency medical conditions posing an immediate threat to life or limb if the inmate cannot be placed in a state institution for the receipt of this care. The responsibility for payment will commence when the costs for direct medical services exceed an amount specified by rules and regulations of the Board of Corrections. The department will pay only the balance in excess of the specified amount. Except as provided in subsection (b) of this Code section, it shall remain the responsibility of the governmental unit having the physical custody of an inmate to bear the costs of such medical and hospital care, if the custody of the inmate has been transferred from the department pursuant to any order of any court within this state. The department shall have the authority to promulgate rules and regulations relative to payment of such medical and hospital costs by the department.

In Macon-Bibb County, this Court summarily determined that OCGA § 42-5-2 constituted an express waiver of sovereign immunity by the State. This Court held: “The county’s immunity was waived by the legislature’s enactment of OCGA § 42-5-2, and its responsibility to pay all medical and hospital expenses may not be avoided by the defense of sovereign immunity.” No further explanation of what part of OCGA § 42-5-2 acts as an “express” waiver of sovereign immunity appears in the opinion.

The interpretations of this Code section, however, vary throughout our case law depending on whether the party seeking to establish a waiver is an inmate or a medical provider. In cases involving an inmate’s claim against the State or its subdivision for failure to provide medical care, this Court has taken the view contrary to Macon-Bibb County and held that OCGA § 42-5-2 did not constitute an express waiver in such cases.

As recently explained by the Supreme Court in Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc., if the plain language of a statute “does not provide for a specific waiver of governmental immunity nor the extent of such a waiver,... no waiver can be implied or shown.” That is not to say that an act must

use the phrase, “the [S]tate waives its sovereign immunity” [in order for an express waiver to occur. If] a legislative act creates a right of action against the [S]tate which can result in a money judgment against the [S]tate treasury, and the [S]tate otherwise would have enjoyed sovereign immunity from the cause of action, the legislative act must be considered a waiver of the [S]tate’s sovereign immunity to the extent of the right of action — or the legislative act would have no meaning.*

Thus, the Court in Macon-Bibb County determined that the Legislature’s enactment of OCGA § 42-5-2 containing the requirement that a county or the Department of Corrections reimburse a medical provider created a right to a money judgment on behalf of the medical provider, thereby waiving sovereign immunity. This Court has, on the other hand, determined that such a right of action was not created by the Legislature’s enactment of the statute when it deals with claims by inmates against prison officials for failure to provide medical care. Moreover, had the Legislature disagreed with or desired to clarify the conclusion of this Court regarding the waiver of sovereign immunity by OCGA § 42-5-2 as stated in Macon-Bibb County, it could have done so in its overhaul of OCGA § 42-5-50 et seq., which occurred in 2009.

2. Our inquiry is not at an end, however, because the City is a municipality, and therefore, treated differently in terms of immunity than other subdivisions, departments, or agencies of the State. Generally speaking, “State law relating to the sovereign immunity of municipalities is codified in OCGA § 36-33-1 et seq.” And a review of case law has revealed no case directly determining that the waiver found in OCGA § 42-5-2 for counties and the State also applies to municipal corporations.

Looking to the Code, Chapter 5 of Title 42 addresses “Correctional Institutions of State and Counties,” while Chapter 4 of Title 42 addresses “Jails” and specifically includes the police chief of a municipal corporation in its defined list of jailers. OCGA § 42-4-1 et seq. contains a separate section addressing medical charges for emergency medical care services provided to inmates by medical facilities — OCGA § 42-4-15 (a) (2) — and this subsection includes “municipal or county jail” in its definition, thereby making some provisions contained in OCGA § 42-5-2 redundant as applied to municipal corporations when read together with Title 42 Chapter 4. Moreover, the chapter contains a separate section imposing requirements for municipal jails regarding sanitation, health requirements, and medical treatment generally.

Nevertheless, while there seems to be some distinction made by the Legislature in its treatment of municipal jailers and county jailers, OCGA § 42-5-2 (b) specifically covers inmates to whom OCGA § 42-4-1 et seq. applies, thereby including inmates held by municipal corporations. Accordingly, we conclude that the waiver of sovereign immunity as to medical providers alleging claims against county or State jailers as stated in Macon-Bibb County also applies to municipal jailers, and therefore, we affirm the trial court’s denial of summary judgment based on our determination that the Legislature included municipal corporations in its waiver of sovereign immunity pursuant to OCGA § 42-5-2.

Decided July 15, 2014 —

Daley, Koster & LaVallee, Paul R. Koster, Gregory V. Reybold, for appellants.

Samuel C. Harvey, for appellee.

3. The Hospital’s motion for attorney fees on the basis that the City instituted a frivolous appeal is hereby denied.

Judgment affirmed.

Miller, J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As such, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       Based on the procedural posture of this case, we assume that there is no genuine issue as to whether the City had custody of the prisoners at the time the hospital rendered treatment.

       221 Ga. App. 496 (471 SE2d 561) (1996) (addressing whether an inmate was in custody such that the County was liable for his medical expenses under OCGA § 42-5-2), citing Macon-Bibb County Hosp. Auth. v. Houston County, 207 Ga. App. 530, 532 (428 SE2d 374) (1993). But see Nolan v. Cobb County, 141 Ga. 385 (81 SE 124) (1914).

       See Macon-Bibb County Hosp. Auth., 207 Ga. App. at 532 (3).

       See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 596 (2) (755 SE2d 184) (2014); City of Atlanta v. Mitcham, 325 Ga. App. 481, 483 (751 SE2d 598) (2013) (physical precedent only), cert. granted May 19, 2014.

       See Macon-Bibb County Hosp. Auth., 207 Ga. App. at 532 (3).

       Id.

       See Mitcham, 325 Ga. App. at 483; Graham v. Cobb County, 316 Ga. App. 738, 742 (1) (b) (i) (730 SE2d 439) (2012); Gish v. Thomas, 302 Ga. App. 854, 862-864 (4) (691 SE2d 900) (2010);
        Cantrell v. Thurman, 231 Ga. App. 510, 513-514 (3), (4) (499 SE2d 416) (1998); Macon-Bibb County Hosp. Auth., 207 Ga. App. at 532 (3).

       See Mitcham, 325 Ga. App. at 483; Graham, 316 Ga. App. at 742 (1) (b) (i); Gish, 302 Ga. App. at 862-864 (4); Cantrell, 231 Ga. App. at 513-514 (3), (4).

       294 Ga. at 603 (2).

       Id. at 603, construing OCGA § 12-5-245.

        Williamson v. Dept. of Human Resources, 258 Ga. App. 113, 115 (1) (572 SE2d 678) (2002).

       We note that prisoners may maintain actions for this type of claim via 42 USC § 1983 for violations of the Eighth Amendment right to medical care. See Gish, 302 Ga. App. at 863, n. 10.

       See Ga. L. 2009, p. 136, § 1A/HB464. See, e.g., OCGA § 42-4-105 codifying immunity for regional jail authorities.

       See also Ga. Const, of 1983, Art. IX, Sec. II, Par. IX, “[t]h.e General Assembly may waive the immunity of counties, municipalities, and school districts.” See City of Thomaston v. Bridges, 264 Ga. 4, 7 (439 SE2d 906) (1994) (holding that under the 1991 amendment to Ga. Const, of 1983, Art. I, Sec. II, Par. IX municipalities are not the State or its departments and agencies).

        Precise, 261 Ga. at 211 (1). Generally, municipal immunity under OCGA § 36-33-1 provides a waiver of sovereign immunity if the municipal corporation neglects to perform or improperly or unskillfully performs a ministerial duty, i.e., a proprietary rather than governmental function. See Mitcham, 325 Ga. App. at 483.

        See Mitcham, 325 Ga. App. at 483; Johnson v. Mayor & City Council of City of Carrollton, 249 Ga. 173, 177 (4) (288 SE2d 565) (1982) (in dicta stating that the former version of OCGA § 42-5-2 made it the responsibility of a city to pay all medical and hospital expenses for a prisoner).

       See OCGA § 42-4-1 (b). OCGA § 42-5-1 et seq., on the other hand, generally defines the State actors as the Department of Corrections or county facilities acting on behalf of the Department and does not specifically include municipal corporations in most subsections.

       See OCGA § 42-4-32.

       “[W]e will affirm a trial court’s denial of a motion for summary judgment if it is right for any reason.” Lowry v. Cochran, 305 Ga. App. 240, 241 (699 SE2d 325) (2010).


author: BARNES, Presiding Judge.

text:
    A14A0730.
    FROST v. THE STATE.
    (761 SE2d 875)
   BARNES, Presiding Judge.

Gary Glen Frost appeals from the denial of his plea in former jeopardy. Frost was tried for Driving Under the Influence of Alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1) (DUI less safe); striking a fixture, OCGA § 40-6-272; and open container, OCGA § 40-6-253. After the jury reached a unanimous verdict on two counts, but was deadlocked on the remaining count, over Frost’s objection, the trial court granted a mistrial on all three counts. Frost contends on appeal that the trial court erred in failing to grant his request to accept the jury’s unanimous verdicts on the two counts of the three count accusation where the jury was hung only on one count. He also asserts that the trial court erred in admitting evidence of two prior DUI convictions under OCGA §§ 24-4-417 and 24-4-404 (b). Following our review, we reverse the denial of Frost’s plea in bar as to the two decided counts. We also reverse the trial court’s ruling on the admissibility of the prior DUI convictions.

The record reflects that on June 24, 2012, at approximately 2:48 a.m., the concierge at the condo complex where Frost lived heard a “loud bang,” which he believed was caused by a car running into one of the entrance gates at the condominium. He observed from a security monitor that the gate was damaged and called police when it appeared that a vehicle was leaving the scene. Each condominium resident’s vehicle is equipped with an electronic identification decal, and when he checked the monitor, the concierge saw that the car belonged to Frost. He continued to observe the car on the monitors and saw that it eventually entered the parking deck through a visitor’s gate. When the concierge went to investigate, he observed Frost sitting in the driver’s seat in the parked car, with the engine and lights still on, and music playing. Frost appeared to be asleep.

When the responding officer arrived, he also observed the damaged gate and that Frost was sitting in the driver’s seat with “his head . . . slumped over his chest as if he was sleeping.” He further observed that “all of the windows were rolled down. There was loud music playing, and the car was still running.” The officer ran the license plate and identified Frost as the owner of the car. Based on his observations that Frost smelled of alcohol, had glassy and bloodshot eyes, and had urinated on himself, the officer suspected that Frost was intoxicated and requested that Frost perform an alco-sensor test. Frost refused, and he also refused to perform any field sobriety tests, after which he was arrested and later charged by accusation with DUI, striking a fixture and open container.

The case proceeded to trial on June 17,2013, and the jury started its deliberation at the end of evidence on June 18. The jury did not reach a verdict on the first day, so deliberations continued into the next day. During the second day of deliberations the jury had several questions, including whether they could get a copy of the trial court’s charge and the protocol for operation of the video recorder. The trial court also recharged the jury on the open container law. As deliberations continued, the trial court received a note from the jury stating, “five/one on one charge. How long do we deliberate?” The trial court brought the jury in and gave them an Allen charge and directed the jury to continue their deliberations “for about thirty to forty-five minutes.”

Before the jury was reconvened in the courtroom, Frost indicated that he would object to the trial court granting a mistrial on the counts on which the jury had reached a verdict, and requested that “their verdict be read into the record, just for purposes of appeal as to the two counts that they reached a verdict on.” The trial court denied his request and stated that “[i]f there is a mistrial, there is going to be a mistrial on all counts.” It further instructed that, “once the jury comes [into the courtroom,] I’m going to read the note on the record and ask them if there’s been any change of their minds. If there has not, I’m going to declare a mistrial.”

The jury reconvened in the courtroom, at which time the trial court read another note from the jury that stated, “not-guilty person stated they will not change their mind. We cannot reach a verdict on DUI. We are dead-locked, five, dash, one.” When asked, the foreman then stated that the jury had reached a unanimous decision on two of the counts. The trial court asked if they were able to reach a unanimous decision on the “whole case ... on all the counts,” and the foreman responded that they had not. The trial court then declared a mistrial on all three counts and dismissed the jury.

Frost filed a plea in former jeopardy and moved for the dismissal of the two counts on which the jury had reached a verdict — striking a fixture and open container. After a hearing, the trial court denied the motion, essentially agreeing with the State’s position and finding a “manifest necessity” for the mistrial absent a completed verdict form signed by the foreperson.

1. On appeal, Frost contends that the trial court erred in granting a mistrial as to the two counts upon which a unanimous verdict was reached. We agree.

In this case,
[w]e find that jeopardy attached when the jury was seated and sworn and that [Frost] was entitled to receive any verdict reached by that jury. Further, unless manifest necessity existed for granting a mistrial as to the counts decided by the jury, double jeopardy bars any retrial on those counts. The [S]tate bears the “heavy” burden of showing such manifest necessity where, as here, a mistrial is granted over the defendant’s objection.

(Citations and punctuation omitted.) Bair v. State, 250 Ga. App. 226 (551 SE2d 84) (2001). “The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” (Citation and punctuation omitted.) Wilson v. State, 229 Ga. App. 455 (494 SE2d 267) (1997).

The State argues that manifest necessity was demonstrated because there was no verdict form in the case, and thus no evidence that a verdict was returned. Certainly, “[a] manifest necessity to declare a mistrial may exist under urgent circumstances, such as where an impartial verdict cannot be reached” (citation and punctuation omitted). Bair, 250 Ga. App. at 227. In this case, however, the note from the jury indicated the jury was deadlocked on the DUI count, but the jury foreman stated in open court that a unanimous verdict had been reached on the other counts. Frost requested that the verdict be published for the record, but the trial court denied his request and stated its intention to declare a mistrial when the jury was reconvened. Other than the fact that the jury was unable to reach a unanimous verdict on the DUI count, there is no other indication that there existed a manifest necessity for a mistrial, or that the trial court had so determined.

Although the trial court found that there had been no verdict in the case,

[v] erdicts shall have a reasonable intendment, and shall receive a reasonable construction, and shall not be avoided unless from necessity. The presumptions are in favor of the validity of the verdict of a jury, and if possible a construction will be given that will uphold it. Where a verdict may, by a reasonable construction, be understood, and a legal judgment can be entered thereon, it is sufficient.

(Citations and punctuation omitted.) Jackson v. Houston, 200 Ga. 399, 400-401 (1) (37 SE2d 399) (1946). Likewise, although much was made of the absence of the verdict form,

[w] e know of no law which requires the verdict to be written upon any particular paper, and we are not cited to any decision or statute to that effect. Where it is held that while the better practice is that the verdict shall be written upon the initial pleading, dated, and signed by one of the jury as the foreman, none of these details are essential to a legal verdict. . . . Verdicts acquire their legality from return and publication.

(Citations and punctuation omitted.) Martin v. State, 73 Ga. App. 573, 578 (4) (37 SE2d 411) (1946).

Accordingly, in this case
[b]ecause the trial court could easily have followed the less drastic alternative of accepting the jury’s verdict on the decided counts and declaring a mistrial only on the . . . undecided count, we find that no manifest necessity existed for granting a mistrial as to the counts decided by the jury. Accordingly, [as the retrial of the two counts would constitute double jeopardy] the trial court abused its discretion in granting a mistrial on the charges of [striking a fixture and open container].

(Citations and punctuation omitted.) Johnson v. State, 256 Ga. App. 730, 732 (1) (569 SE2d 625) (2002). See also Bair, 250 Ga. App. at 227.

Thus, we reverse the trial court’s order as to the denial of Frost’s plea in bar on the striking a fixture and open container counts.

2. Although in Division 1 we reversed the trial court’s denial of Frost’s plea in bar on the striking a fixture and open container counts, he faces retrial on the DUI count. Thus, the admissibility of the similar transactions is likely to occur on retrial. We will therefore address it here.

The State filed a notice of intent to introduce evidence of Frost’s two prior DUI convictions. Frost contends that the trial court erred in admitting the transactions because in the prior DUI convictions he had also refused sobriety tests, and thus no relevant evidence could be imputed from the similar transactions to the present case. We agree.

“Absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible.” (Citations and punctuation omitted.) Joiner v. State, 265 Ga. App. 395, 397 (2) (593 SE2d 936) (2004).

Under Georgia’s new Evidence Code,
[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

OCGA § 24-4-404 (b). Under the old Evidence Code, Georgia courts also permitted introduction of evidence of prior DUI convictions to show course of conduct and bent of mind. See Steele v. State, 306 Ga. App. 870, 873 (2) (703 SE2d 5) (2010); Wade v. State, 295 Ga. App. 45, 47-48 (670 SE2d 864) (2008). However, under the new Evidence Code, “course of conduct” and “bent of mind” are no longer acceptable bases for admitting similar transaction evidence. Johnson v. State, 292 Ga. 22, 25 (2), n. 3 (733 SE2d 736) (2012).

OCGA § 24-4-417, which specifically provides for the introduction of DUI similar transaction evidence, states:

[Ejvidence of the commission of another violation of Code Section 40-6-391 on a different occasion by the same accused shall be admissible when . . . [t]he accused refused in the current case to take the state administered test required by Code Section 40-5-55 and such evidence is relevant to prove knowledge, plan, or absence of mistake or accident [.]

OCGA § 24-4-417 (a) (1). The statute further provides that: “This Code section shall not be the exclusive means to admit or consider evidence described in this Code section.” OCGA § 24-4-417 (c). Thus, evidence of prior DUIs may also be considered under OCGA § 24-4-404 (b).

In this case, the trial court held a pretrial hearing and ruled over Frost’s objection that the two prior DUIs were admissible for the limited purpose of proving knowledge. In both of the prior transactions, as in the present case, Frost refused to take any sobriety tests, and in the second transaction, his car was parked in the parking lot of a business complex at four in the morning, “music blasting,” and Frost was asleep behind the wheel. Frost pled guilty to both DUIs. At the trial, the arresting officers testified as to the circumstances of the similar transactions.

Frost contends that the evidence of intent or knowledge is not relevant because these issues are not elements of DUI less safe, which is a general intent crime, and that there is no requirement of “knowledge that one is driving while under the influence.” See Prine v. State, 237 Ga. App. 679, 680 (2) (a) (515 SE2d 425) (1999) (to establish DUI, the State must prove (1) driving; (2) after consuming alcohol; (3) to the degree one is less safe). We agree.

OCGA § 24-4-417 (a) (1) provides that prior DUI evidence is admissible when the defendant, as was the case here, “refused in the current case to take the state administered test required by Code Section 40-5-55.” It further provides that the evidence must then be “relevant to prove knowledge, plan, or absence of mistake or accident.” Id. Under this provision, if

the defendant took and failed the [state-administered] test in the prior DUI and the defendant refused the test in the subject case, [and] if the defendant at trial attempts to suggest that he did not take the test because he did not understand it, or he did not know that he could take a test, or that he would never take such a test, [then] the prior DUI in which the defendant took and failed the test would be admissible to prove knowledge, plan or absence of mistake or accident.

Paul S. Milich, Ga. Rules of Evidence § 11:16 (2013-2014). Here, Frost did not provide an explanation or excuse at trial for his refusal to take the state-administered tests in the present case. Moreover, Frost refused to take the state-administered tests in the prior DUIs as well. Thus, OCGA § 24-4-417 (a) would not apply under the facts of this case to demonstrate knowledge, plan or absence of mistake or accident.

Nor would the prior DUI convictions be admissible to demonstrate “knowledge” under OCGA § 24-4-404 (b). See OCGA § 24-4-417 (c) (“This Code section shall not be the exclusive means to admit or consider evidence described in this Code section.”). As this Court explained in Jones v. State, 326 Ga. App. 658, 664 (1) (b) (757 SE2d 261) (2014),

DUI is a crime of general, not specific, intent.... In a crime of general intent, the “intent” required is proved through proof of the commission of the act itself. In a DUI [less safe] case the act consists of (1) driving, (2) after consuming alcohol to the extent that one is (3) a less safe driver. There is no proof of intent beyond proof of the act. To prove DUI, the State need not prove intent to commit the crime. . . . Admission of the similar transaction evidence as proof... [of knowledge] that drinking alcoholic beverages made him a less safe driver did not elucidate or throw light upon whether, in this instance, he committed the same crime again; no culpable mental state was required.

(Citation and punctuation omitted; emphasis in original.) Id. at 664-665 (1) (b).

Decided July 15, 2014 —

George C. Creal, Jr., for appellant.

Barry E. Morgan, Solicitor-General, Emily B. Keener, Cara M. Convery, Assistant Solicitors-General, for appellee.

Accordingly, because the evidence of Frost’s prior DUIs was not admissible for the purposes put forth, the trial court abused its discretion in so finding.

Judgment reversed.

Boggs and Branch, JJ., concur.

        See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896).

       The court’s clerk indicated that there was no verdict form docketed in the system, and while it was unclear what happened to the verdict form, it is undisputed that it was not signed by the foreman.

       Under the new Evidence Code, the admission of evidence of “other crimes, wrongs, or acts” at trials conducted after January 1, 2013, is governed by OCGA § 24-4-404 (b). See Ga. L. 2011, p. 99, § 101. Erost was tried in June 2013, thus our new Evidence Code applied to his trial.


author: Miller, Judge.

text:
    A12A1874.
    ANDREWS v. THE STATE.
    (764 SE2d 553)
   Miller, Judge.

In Andrews v. State, 320 Ga. App. 816 (739 SE2d 445) (2013), we affirmed the denial of Ronald Bernard Andrews’s motion to withdraw his 2003 guilty plea to rape, aggravated assault, two counts of burglary, theft by taking and three counts of robbery, finding that, by pleading guilty to all eight counts, Andrews waived the issue of whether the burglary and robbery counts merged. Id. at 819-820 (2). We also held that Andrews failed to show that his trial counsel provided ineffective assistance. Id. at 817-819 (1).

The Supreme Court of Georgia granted certiorari and vacated our decision in Andrews v. State, 2013 Ga. LEXIS 703 (Case No. S13G1143, decided September 9, 2013). The Supreme Court also remanded with direction for this Court to consider this case in light of Nazario v. State, 293 Ga. 480 (746 SE2d 109) (2013), which held that a conviction which merges with another conviction is void, a sentence imposed on such a conviction is illegal and entry of a guilty plea does not waive a defendant’s claim that a conviction merged as a matter of law or fact. Accordingly, we now consider whether the trial court erred in (1) finding that the duplicitous counts in Andrews’s indictment did not merge for sentencing purposes, and (2) refusing to allow Andrews to withdraw his plea because his plea counsel rendered ineffective assistance.

After sentencing, “a guilty plea may only be withdrawn if the defendant establishes that such withdrawal is necessary to correct a manifest injustice — ineffective assistance of counsel or an involuntary or unknowingly entered guilty plea.” (Footnote omitted.) Wilson v. State, 302 Ga. App. 433, 434 (1) (691 SE2d 308) (2010). The trial court is the final arbiter of all factual issues raised by the evidence, and its refusal to allow a withdrawal will not be disturbed absent a manifest abuse of discretion. See Lawton v. State, 285 Ga. App. 45, 46 (645 SE2d 571) (2007).

The record shows that in July 2003, Andrews was charged by indictment with rape (OCGA § 16-6-1 (a) (1) (2003)), aggravated assault (OCGA § 16-5-21 (a) (2003)), two counts of burglary (OCGA § 16-7-1 (a) (2003)), theft by taking (OCGA § 16-8-2 (2003)), and three counts of robbery (OCGA § 16-8-40 (a) (2003)). On November 18, 2003, Andrews entered a non-negotiated guilty plea to each count. The trial court sentenced Andrews to twenty years to serve concurrently on the burglary, aggravated assault, and robbery charges (Counts 1, 2, 4, 5, 6 and 7); ten years to serve concurrently on the theft by taking charge (Count 8); and life in prison on the rape charge (Count 3).

On December 19, 2003, in the same term of court in which he was sentenced, Andrews filed a pro se letter to the Clerk and District Attorney stating that he wished to withdraw his plea on the grounds of misrepresentation and ineffectiveness of counsel. Following an evidentiary hearing, the trial court found that Andrews’s letter should be construed as a motion to withdraw his guilty plea. The trial court entered an order denying Andrews’s motion.

The trial court found that the two burglary counts (Counts 1 and 2), and the three robbery counts (Counts 5, 6 and 7) should have merged, but the merger issue was waived due to Andrews entering a plea. The trial court also found that the sentence imposed was not void because Andrews was sentenced to twenty years on the burglary, robbery and aggravated assault counts (Counts 1,2,4, 5,6 and 7), and the 20-year sentences on those counts did not exceed the maximum permitted under Georgia law.

1. Andrews contends that the trial court erred in refusing to allow him to withdraw his plea because his counsel rendered ineffective assistance during the plea hearing. Specifically, Andrews argues that his counsel did not prepare him to enter a plea. We do not agree.

“When the validity of a guilty plea is challenged, the [S] tate bears the burden of showing affirmatively from the record that the defendant offered his plea knowingly, intelligently, and voluntarily.” (Punctuation omitted.) Terrell v. State, 274 Ga. App. 539, 540 (2) (618 SE2d 175) (2005). Since Andrews based his motion to withdraw his plea on a claim of ineffective assistance of counsel, he had the burden of showing that “counsel was deficient, and that absent the deficiency, there [was] a reasonable probability that he would have proceeded to trial rather than pleading guilty.” (Citation and punctuation omitted.) James v. State, 309 Ga. App. 721, 722 (2) (710 SE2d 905) (2011); Sims v. State, 299 Ga. App. 698, 700 (1) (683 SE2d 668) (2009). “Atrial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed unless that determination is clearly erroneous.” (Citation and punctuation omitted.) Id. at 700 (1).

The plea hearing transcript shows that the State met its burden of proving that Andrews’s non-negotiated plea was knowingly and voluntarily entered. Notably, the State laid a factual basis for each crime to which Andrews entered a guilty plea. Moreover, the record shows that Andrews’s counsel informed Andrews of his rights and explained them to him, and Andrews testified under oath that he was not under the influence of drugs or alcohol, he had never been under the care of a psychiatrist or psychologist, he had gone to three years of college, he understood the charges in the indictment, and he understood the rights he was waiving by entering a guilty plea. Andrews further testified that he understood the maximum sentences for the charged offenses, no promises or threats were made in exchange for his plea, he had conferred with counsel about the case and was satisfied with his counsel’s services, and he was in fact guilty of the charged crimes.

At the hearing on the motion to withdraw plea, Andrews’s counsel testified that he discussed the possibility of a plea with Andrews; explained the ramifications of entering a non-negotiated plea to Andrews; advised Andrews that he would have to register as a sex offender if he pled guilty to rape; advised Andrews of his constitutional rights and the minimum and maximum sentence he faced if he entered a plea; and advised Andrews that he had three options — a negotiated plea, a non-negotiated plea or going to trial.

Andrews admitted at the hearing on his motion to withdraw his plea that before he entered his plea he executed a written plea questionnaire, which set out the minimum and maximum sentence, and his counsel told him at that time that the maximum possible sentence was life plus 140 years, and a fine of up to $800,000. Moreover, the transcript of Andrews’s plea hearing shows that he was advised of and understood the maximum sentence and fine he faced upon entering his plea. Although Andrews provided some conflicting testimony at the hearing, the trial court was authorized to credit trial counsel’s testimony over Andrews’s self-serving statements. See Jones v. State, 287 Ga. 270, 272 (695 SE2d 271) (2010); Gower v. State, 313 Ga. App. 635, 637 (722 SE2d 383) (2012). Thus, Andrews failed to carry his burden of proving that trial counsel was deficient in preparing him to enter his plea.

2. Andrews contends that the trial court erred in finding that the duplicitous counts in his indictment did not merge for sentencing purposes. For the reasons that follow, we agree in part.

Where, as here, the merger issues arise in a guilty plea case, this Court is

limited to finding error, as in all cases, based on the record— While a defendant does not waive consideration of merger issues by pleading guilty, his guilty plea does waive the expansion of the factual record that occurs with a trial. The practical effect of that waiver will usually mean that he cannot establish (and the court cannot discern) that any of his convictions merged, particularly as a matter of fact, based on the limited record.

(Emphasis omitted.) Nazario, supra, 293 Ga. at 488 (2) (d). Accordingly, we look to the limited record in this case, and in determining whether one crime merges with another, “we apply the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). Under that test, we examine whether each offense requires proof of a fact which the other does not.” (Citations and punctuation omitted.) Thomas v. State, 292 Ga. 429, 433 (4) (738 SE2d 571) (2013).

Here, the limited record from Andrews’s guilty plea hearing shows that on the afternoon of May 24, 2003 the victim was working in the store she owned in a shopping center in Cobb County. As the victim was closing up the store, Andrews came through the back door of the store carrying an 18-inch-long black metal ‘Maglite” flashlight. Andrews asked the victim to take him to the money. The victim gave Andrews the money in the cash register, along with the money from her wallet and her check card. Andrews then instructed the victim to take her pants off, and the victim complied. The victim began to struggle with Andrews, however, when he also asked her to take off her panties.

Andrews hit the victim in the head with the flashlight multiple times, causing a laceration to her head that required stitches. Andrews then picked up the victim, slammed her to the floor, and began choking her. At that point, the victim stopped fighting because she did not want to die. When Andrews was unable to get an erection, he began masturbating himself while he told the victim that he had seen her around the shopping center and had been wanting to get with her. When Andrews finally got an erection, he forcibly raped her. When he finished, Andrews got up, took the victim’s car keys, got into her car and left.

(a) Burglary (Counts 1 and 2)

The trial court found, and the State concedes, that Andrews’s burglary convictions should have merged because both counts charged Andrews with entering the same building without authority on the same date with intent to commit a felony — theft (Count 1) and rape (Count 2). Accordingly, only one burglary occurred, and the trial court erred in failing to merge Counts 1 and 2 for sentencing purposes. In so holding, we note that the trial court found that these offenses effectively merged because the trial court imposed only one 20-year sentence on Andrews’s convictions for burglary (Counts 1 and 2), aggravated assault (Count 4) and robbery (Counts 5, 6 and 7). See Zachery v. State, 241 Ga. App. 722, 723 (1) (527 SE2d 601) (2000) (holding that trial court apparently merged two robbery offenses before sentencing, as it imposed only one 20-year sentence). Nevertheless, because these convictions merge as a matter of law, Andrews’s sentence was illegal, and we must remand for resentencing. See Nazario, supra, 293 Ga. at 492 (3) (d).

(b) Aggravated Assault with Intent to Rape (Count 4).

Count 4 of Andrews’s indictment charged him with aggravated assault with intent to rape based on his act of striking the victim in the head with a flashlight. Contrary to Andrews’s contention, the aggravated assault did not merge with his rape conviction (Count 3) because the aggravated assault was complete before the rape and it involved a separate and distinct act of force outside of the force necessary to accomplish the rape.

Notably, the record shows that the crime of aggravated assault based on Andrews’s actions in hitting the victim in the head with the flashlight was complete well before he raped the victim. Moreover, Andrews cannot show based on the limited record that the force used to prove the rape was the same force used to prove the aggravated assault, because the record shows that, after he hit the victim in the head, Andrews picked her up, slammed her to the floor and choked her. The record also shows that Andrews was unable to get an erection and had to masturbate himself before he forcibly raped the victim. Accordingly, the trial court did not err in failing to merge the aggravated assault conviction. See Williams v. State, 295 Ga. App. 9, 14-15 (2) (b) (670 SE2d 828) (2008) (affirming trial court’s refusal to merge aggravated assault with intent to rape into rape conviction where aggravated assault involved separate and distinct acts of force).

(c) Robbery (Counts 5, 6, and 7)

Andrews was charged with three counts of robbery by intimidation based on his taking from the victim’s person her cash (Count 5), her check card (Count 6) and her car keys (Count 7). Here, the record shows that Andrews’s actions in taking the victim’s cash and check card occurred simultaneously. Accordingly, the trial court erred in failing to merge Counts 5 and 6 for sentencing purposes. See Woods v. State, 209 Ga. App. 604, 606 (2) (434 SE2d 146) (1993) (trial court erred in sentencing defendant for two counts of theft by taking where the offenses were committed at the same time and place and were parts of one continuous criminal act).

Andrews cannot show that his conviction for robbery by intimidation based on taking the victim’s car keys (Count 7) merged, however, because the record shows that this offense was not part of his initial actions in taking the victim’s cash and check card. Notably, Andrews did not take the victim’s car keys until after he assaulted the victim with the flashlight, slammed her to the floor, choked her and forcibly raped her. See Jones v. State, 279 Ga. 854, 857-858 (3) (622 SE2d 1) (2005) (offenses were based on two distinct acts of taking occurring at different times). Accordingly, the trial court did not err in failing to merge Count 7.

(d) Theft by Taking (Count 8)

Count 8 charged Andrews with unlawfully taking the victim’s Honda CRV with the intention of depriving her of said property. Here, Andrews cannot show as a matter of fact that his theft by taking conviction merged with his conviction for robbery based on his act of taking the victim’s car keys because the two offenses were based on two distinct acts occurring at different times in different locations. Notably, Andrews took the victim’s car keys from her immediate presence after he raped her. Andrews then went outside the store and took the victim’s car. Consequently, the trial court did not err in failing to merge Andrews’s conviction for theft by taking. See Jones, supra, 279 Ga. at 857-858 (3) (defendant’s theft of car outside apartment after he took keys from victim was a separate unauthorized taking which occurred outside victim’s immediate presence).

Decided June 2, 2014 —

Reconsideration denied July 16, 2014 —

Edwin J. Wilson, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

In sum, we hold that Andrews’s convictions for burglary (Counts 1 and 2) and his convictions for robbery by intimidation (Counts 5 and 6) merged. Accordingly, we vacate Andrews’s convictions for one burglary count (Count 2) and one count of robbery by intimidation (Count 6) and remand for resentencing. We affirm Andrews’s remaining convictions because the remaining counts did not merge and Andrews failed to show that his trial counsel was deficient in preparing him to enter his plea.

Judgment affirmed in part and vacated in part, and case remanded.

Branch, J., concurs. Ray, J., concurs fully in Divisions 1, 2 (a) and 2 (d) and in judgment only in Divisions 2 (b) and 2 (c).

       Andrews also contends that the trial court erred in refusing to recognize as a pleading his letter requesting that he be allowed to withdraw his guilty plea, and the trial court erred in finding that he was represented by counsel when he filed his pro se motion to withdraw his guilty plea. We find that these enumerations of error are moot because the trial court did in fact consider the letter as a pro se motion to withdraw Andrews’s guilty plea and, furthermore, considered the merits of the pro se motion.

       Andrews was sentenced on November 18, 2003, in the November term of court for the Cobb County Superior Court. See OCGA § 15-6-3 (11) (2003) (defining terms for Cobb Circuit). He filed his pro se motion to withdraw his plea on December 19, 2003, within that same term.

       The trial court had jurisdiction to entertain Andrews’s motion to withdraw his guilty plea, even though the hearing on the motion was not held until several years after the term of court in which Andrews entered his plea, because Andrews filed the motion within the mandated time frame, and the State had adequate notice of the motion. See McKiernan v. State, 286 Ga. 756, 759 (692 SE2d 340) (2010); Watson v. State, 307 Ga. App. 839, 840 (1) (706 SE2d 194) (2011).

       Because we address the issue of merger in Division 2 below, we need not address Andrews’s additional argument that trial counsel was deficient in failing to properly advise him about the potential merger of the charged offenses.

       A person commits the offense of rape when he has forcible carnal knowledge of a female against her will. OCGA § 16-6-1 (a) (1) (2003). A person commits the offense of aggravated assault when he assaults with intent to rape. OCGA § 16-5-21 (a) (1) (2003). The underlying assault can occur where, as here, the defendant commits an act which places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a) (2) (2003).


author: Phipps, Chief Judge.

text:
    A12A0216.
    GEORGIA DEPARTMENT OF REVENUE v. MOORE.
    (762 SE2d 184)
   Phipps, Chief Judge.

This is the second appearance of this business sales and use tax case before this court. In the first appearance, Ga. Dept. of Revenue v. Moore, this court affirmed the judgment of the superior court, which had reversed the final administrative decision of the Georgia Department of Revenue (the Department) regarding the tax liability of Richard Moore, a corporate officer. We found that, by voluntarily refunding to the corporation’s majority owner, Thomas Turrentine, a portion of the taxes owed, the Department forfeited any right it had to recoup from Moore the payment it made to Turrentine.

The Department appealed and, in Ga. Dept. of Revenue v. Moore, the Supreme Court of Georgia reversed our decision, holding that “[t]he voluntary payment doctrine set forth in OCGA § 13-1-13 is a concept applicable to contracts, not tax indebtedness.” Citing OCGA § 9-11-19 (a) (2), the Court remanded the case for us “to consider the issue of whether Moore was a necessary party to Turrentine’s refund action, and, if so, what consequences would follow in relation to this appeal.”

“Upon our review of the superior court’s actions, the evidence is construed in favor of the agency’s decision. Both the superior court and this [c]ourt review conclusions of law de novo.” For the reasons that follow, we reverse the judgment of the superior court.

OCGA § 9-11-19 (a) pertinently provides:

A person who is subject to service of process shall be joined as a party in the action if:... (2) [h] e claims an interest relating to the subj ect of the action and is so situated that the disposition of the action in his absence may: (A) [a]s a practical matter impair or impede his ability to protect that interest; or (B) [ljeave any of the persons who are already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. . . .

It is undisputed that Moore and Turrentine were “responsible persons” of the corporation within the meaning of OCGA § 48-2-52, and that they were jointly obligated to pay the corporation’s sales and use taxes. The parties have not cited, nor have we found, any cases specifically addressing whether a responsible person is a necessary party (within the meaning of OCGA § 9-11-19) to a refund action brought by another responsible person. Inasmuch as both OCGA §§ 48-2-52 and 9-11-19 are patterned after federal statutes, we will look to federal cases for guidance on the issue.

Under federal law, the liability of corporate officers for their company’s unpaid sales taxes is in the nature of joint and several liability. Under Georgia law, “[w]here the complainant has the right of election as to which defendants he will proceed against, [OCGA § 9-11-19 (a)] has no application.” Further, under Georgia law, a jointly and severally liable person is not a necessary party to a lawsuit involving another such person.

This principle is recognized under Rule 19 of the Federal Rules of Civil Procedure. In Gray v. United States, where the plaintiff sued the government for a refund of taxes he had paid pursuant to 26 USC § 6672, and the government counterclaimed for the balance due, the district court denied the plaintiff’s motion for joinder of another person alleged also to be liable for the corporation’s taxes. The court held that

liability under section 6672 is joint and several among responsible persons, and each responsible person can be held for the total amount... not paid.... The fact that there may be other fiscally-responsible persons does not relieve [the plaintiff] of his duty to pay these taxes as a responsible person. Accordingly, joinder... is not necessary to accord the parties complete relief in the instant action.

Because Moore was not a necessary party to the refund action, the superior court erred in finding that the Department’s failure to add him as a necessary party to that prior action precluded the Department from pursuing Moore for the amount it refunded to Turrentine. Inasmuch as the superior court’s final ruling was based on errors of law (namely, that the Department was precluded from collecting the assessments from Moore based on the voluntary payment and joinder of necessary party statutes), the judgment is reversed.

Decided July 16, 2014.

Samuel S. Olens, Attorney General, Warren R. Calvert, Senior Assistant Attorney General, Frances C. Mulderig, Assistant Attorney General, for appellant.

Cohen, Cooper, Estep & Allen, Jeffrey L. Cohen, Jefferson M. Allen, for appellee.

Judgment reversed.

Ellington, P. J., and Dillard, J., concur.

       317 Ga. App. 31 (730 SE2d 671) (2012) (“Moore I”).

       In its final order, the superior court found that the Department had received full payment for the tax assessment from a different responsible person (Thomas Turrentine); that it had voluntarily refunded a portion of that payment to Turrentine pursuant to the latter’s refund action; that the Department was attempting to pursue another responsible person (Moore) for the amount it had elected to return to Turrentine as a refund; and, that “[i]f the Department intended to take this course of action, it should have added Mr. Moore as a necessary party to the refund suit. See OCGA § 9-11-19 (a). Because the Department did not do so then, it cannot so pursue Mr. Moore now.” The superior court cited as authority OCGA §§ 48-2-52 and 13-1-13. The facts and procedural history of the case are set out more fully in Moore I.

        Moore I, supra at 36 (1).

       294 Ga. 20 (751 SE2d 57) (2013).

       Id. at 22.

       Id.

        Gen. Motors Acceptance Corp. v. Jackson, 247 Ga. App. 141 (542 SE2d 538) (2000) (citations omitted); see Coastal Marshlands Protection Committee v. Altamaha Riverkeeper, 315 Ga. App. 510, 511 (726 SE2d 539) (2012).

       OCGA § 48-2-52 (a) provides:
      Any officer or employee of any corporation, any member, manager, or employee of any limited liability company, or any partner or employee of any limited liability partnership who has control or supervision of collecting from purchasers or others amounts required under this title or of collecting from employees any taxes required under this title, and of accounting for and paying over the amounts or taxes to the commissioner, and who willfully fails to collect the amounts or taxes or truthfully to account for and pay over the amounts or taxes to the commissioner, or who willfully attempts to evade or defeat any obligation imposed under this title, shall be personally liable for an amount equal to the amount evaded, not collected, not accounted for, or not paid over.
      See Haysman v. Dept. of Revenue, 432 BR 336, 339 (II), (III) (N.D. Ga. 2010) (“Aperson is liable for a company’s unpaid taxes if he is (1) a responsible person who (2) willfully fails to collect and remit... sales taxes—Aresponsible person within the meaning of OCGA § 48-2-52 is one who controls the funds of the company and fails to remit the required taxes.”).

       See OCGA § 48-2-52.

       See Empire Banking Co. v. Martin, 133 Ga. App. 115, 119 (210 SE2d 237) (1974) (noting that Section 19 of Georgia’s Civil Practice Act, pertaining to the failure to join a party, “copies” Rule 19 of the Federal Rules of Civil Procedure; as this Code section (now OCGA § 9-11-19) is modeled on Federal Rule of Civil Procedure 19, see 28 USC, decisions construing the federal rule may be looked to as a guide to interpreting Georgia’s law); Blackmon v. Mazo, 125 Ga. App. 193, 196 (1) (a) (186 SE2d 889) (1971) (because OCGA § 48-2-52 is patterned after the federal statute regarding a corporate officer’s failure to pay taxes (26 USC § 6672), we “may turn to the federal cases for aid in construing [the] statute”); see generally Matthews v. Riviera Equipment, 152 Ga. App. 870-871 (1) (264 SE2d 318) (1980) (in deciding issue involving Ga. Code Ann. § 81A-141 (a) (now OCGA § 9-11-41), this court looked for guidance from and adopted interpretation set out in federal decisions construing Rule 41 (a) of the Federal Rules of Civil Procedure, which was the model for Ga. Code Ann. § 81A-141 (a)).

       See Gens v. United States, 615 F2d 1335, 1339-1340 (II) (Ct. Cl. 1980); Mazo v. United States, 591 F2d 1151, 1157 (IV) (5th Cir. 1979); see also Thosteson v. United States, 331 F3d 1294, 1299 (III) (A) (11th Cir. 2003) (a company may have more than one responsible party within the meaning of § 6672; that one person was responsible does not absolve another responsible person of responsibility).

        Smith v. Foster, 230 Ga. 207, 208-209 (1) (196 SE2d 431) (1973) (“Where an additional defendant is essential for a just adjudication among the existing parties to the original suit and he could have been joined originally, upon proper motion the trial court should grant the joinder. [OCGA § 9-11-19 (a)]. However, where the complainant has the right of election as to which defendants he will proceed against, [OCGA § 9-11-19 (a)] has no application.”) (citations omitted).

        Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, 820 (4) (708 SE2d 672) (2011) (“It is well settled that it is not required that all joint tortfeasors be joined together in an action against one, their liability being joint and several.”).

       See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 838 (II) (B) (109 SCt 2218, 104 LE2d 893) (1989) (citing Fed. R. Civ. Proc. 19 (b), rejecting the argument that a guarantor was an indispensable party to the suit, given that the guarantors were jointly and severally liable); Park v. Didden, 695 F2d 626, 631 (II) (B) (2) (D. C. Cir. 1982) (“[a]n almost unbroken line of federal decisions holds that persons whose liability is joint and several may be sued separately in federal court”); Temple v. Synthes Corp., 498 U. S. 5, 7 (111 SCt 315, 112 LE2d 263) (1990) (“It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.”); Universal Reinsurance Co. v. St. Paul Fire & Marine Ins. Co., 312 F3d 82, 87 (b) (2d Cir. 2002) (“one of several joint obligors is not an indispensable party”; and “Rule 19 does not mandate the joinder of joint obligors, because one of several joint obligors is not typically an indispensable party to an action against the others”).

       2012 U.S. Dist. LEXIS 19765 (N.D. Cal. 2012).

        Gray v. United States, supra at *2, 5 (II), (IV).

       Id. at *5-6 (IV) (citations and punctuation omitted).

       See Gladowski v. Dept. of Family & Children Svcs., 281 Ga. App. 299 (635 SE2d 886) (2006) (“In an appeal from a superior court’s review of a final agency decision, our function is to determine whether the superior court has in its own final ruling committed an error of law.”) (citation, punctuation and footnote omitted); Children’s Hosp. of Pittsburgh v. Ga. Dept. of Medical Assistance, 235 Ga. App. 697, 700 (1) (509 SE2d 725) (1998) (reversing the superior court’s affirmance of the administrative agency’s decision when the superior court committed an error of law); Miles v. Carr, 224 Ga. App. 247, 248 (1) (480 SE2d 282) (1997) (reversing superior court’s judgment when the court committed a legal error in reversing the ruling of the administrative agency, and reiterating that “in reviewing a superior court’s order in a case under the Administrative Procedure Act, our function is to determine whether the superior court has in its own final ruling committed an error of law”) (citation and punctuation omitted).


author: McFadden, Judge.

text:
    A12A0442.
    PNC BANK, N.A. v. TIDWELL et al.
    (762 SE2d 119)
   McFadden, Judge.

In Nat. City Mtg. Co. v. Tidwell, 293 Ga. 697 (749 SE2d 730) (2013), the Supreme Court of Georgia reversed our decision in PNC Bank, N.A. v. Tidwell, 317 Ga. App. 275 (728 SE2d 786) (2012), in which we dismissed this appeal for lack of standing. The Supreme Court remanded the case for this court to consider the merits of the appeal.

The merits involve the interplay between a contractual provision in a security deed, which requires notice containing certain specified information before foreclosure, and OCGA § 44-14-85, which provides that, when foreclosure proceedings are withdrawn after acceleration, the debt is reinstated on pre-acceleration terms. We hold that the trial court erred by finding that, as a matter of law, there was no distinction between the bank’s cancellation of advertised foreclosure sales and the “withdrawal” contemplated by the statute. Consequently, the trial court erred by granting summary judgment to the plaintiffs on their breach of contract claim against the bank, and we reverse.

A trial court may grant summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). “We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” Woodcraft by MacDonald v. Ga. Cas. & Surety Co., 293 Ga. 9, 10 (743 SE2d 373) (2013) (citation and punctuation omitted).

Viewed in this light, the evidence shows that on April 1, 2003, Jennifer and Truman Littleton refinanced the loan on their home with First Southern Guarantee Financial Corporation, which assigned the loan and security deed to the bank.

At some point, the bank stopped crediting the Littletons’ monthly payments to their account because, it contends, the amount of the payments was insufficient, due to a need for an increase in the amount of escrow account funds in order to pay increased taxes. In fact, the bank began returning the Littletons’ checks, stating that it was “unable to accept” them because they were “not [the Littletons’] total monthly payment.” The plaintiffs, on the other hand, contend that the Littletons had made overpayments and even had made an extra mortgage payment in advance of and in anticipation of the increased taxes and corresponding need for an increase in the amount in the escrow account.

According to the bank, the Littletons’ deficit continued to grow. On April 2, 2004, the bank wrote the Littletons that they were in breach of the security deed for nonpayment; that should they fail to cure the breach with a payment of more than $11,000, the maturity date of the note would be accelerated; and that they could face foreclosure. The bank scheduled a foreclosure sale of the property for July 6, 2004.

After Jennifer Littleton called the bank’s foreclosure counsel, counsel took no further steps to proceed with the foreclosure sale scheduled for July 6, 2004, and the sale did not occur. Jennifer Littleton continued to communicate with foreclosure counsel, but foreclosure counsel nonetheless advertised the Littletons’ property for foreclosure sales in October 2004, November 2004, and January 2005. The bank did not proceed with the foreclosure sales scheduled for October 2004 and November 2004, but foreclosed on the Little-tons’ property on January 4,2005. After the foreclosure sale, the bank forwarded to the Littletons $37,875, monies paid by theLittletonsbut not credited to their account.

In 2007, the Littletons filed this action against the bank, asserting claims for breach of contract, wrongful foreclosure, breach of the duty of good faith and fair dealing, slander of title, theft by deception, theft by conversion, a RICO violation, loss of credit standing, loss of reputation, emotional pain, and fraud. Both sides moved for summary judgment. In an order entered May 24, 2011, the trial court, among other things, denied the bank’s motion for summary judgment and granted the plaintiffs’ motion for summary judgment on their breach of contract claim. The bank brought this appeal.

The plaintiffs based their breach of contract claim on the ground that the bank failed to provide contractually required notice before foreclosing on the property. The notice requirement is in section 22 of the security deed, which concerns acceleration. Section 22 sets out the information to be included in the notice. It provides in pertinent part:

Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument .... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale. If the default is not cured on or before the date specified in the notice Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale granted by Borrower and any other remedies permitted by Applicable Law. . . .

The bank argues that its April 2004 notice satisfied the notice requirement in the security deed and that it was not required to give additional section 22 notice before proceeding with foreclosure simply because it cancelled the July, October and November foreclosure sales. It argues that OCGA § 44-14-85 (a), which provides for reinstatement of the debt on pre-acceleration terms if foreclosure proceedings are withdrawn, does not apply and did not require it to send the Littletons additional section 22 notice before conducting the January foreclosure sale. We hold that the trial court erred in resolving that issue by summary judgment.

OCGA § 44-14-85 (a) provides that withdrawal of foreclosure proceedings reinstates the indebtedness on pre-acceleration terms:

The acceleration of the maturity of an indebtedness which is evidenced by a note or otherwise and secured by a deed to secure debt conveying real property and the commencement of foreclosure proceedings by the advertisement of a sale under the power contained in the deed or by an action shall not commence the running of the statute of limitations against the exercise of any right, power, or privilege authorized in the deed or the evidence of the indebtedness secured thereby or the right to bring an action to enforce any provision of the deed or to collect the indebtedness secured thereby if the foreclosure proceedings are withdrawn prior to their completion by sale or otherwise. Such withdrawal shall operate to rescind the acceleration of the maturity of the indebtedness and to reinstate the indebtedness upon the terms and conditions existing prior to the acceleration. Such withdrawal shall not prejudice the right of the holder of the indebtedness and deed securing same to exercise any and all rights to accelerate the maturity of the indebtedness and to exercise any right or power contained in the deed or the evidence of the indebtedness secured thereby or conferred by law should a subsequent default occur.

(Emphasis supplied.)

We conclude that withdrawal of foreclosure proceedings and postponement of those proceedings are distinct. The trial court erred in holding as a matter of law that the repeated postponements of the foreclosure proceedings constituted withdrawal of those proceedings and therefore invoked the requirements of OCGA § 44-14-85 (a).

Our Supreme Court has assumed that parties are free to draw that distinction. See Old Stone Co. I v. Hughes, 284 Ga. 259 (663 SE2d 687) (2008). In that case, “[t]he foreclosure date was changed several times while the parties tried to work out their differences.” Id. at 259. The mortgage holder ultimately proposed a method to resolve the parties’ dispute—that the mortgage holder withdraw the foreclosure proceedings and extend the expiration date of the underlying promissory note, thereby allowing the debtor time to sell the property. Id. The trial court subsequently issued an order adopting this proposal, id. at 259-260, and the Supreme Court found that the debtors acquiesced to this solution. Id. at 262 (3). See also Gregorakos v. Wells Fargo Nat. Assn., 285 Ga. App. 744, 745 (647 SE2d 289) (2007) (lender “temporarily postpone [d] foreclosure proceedings to give [debtor] time to obtain new financing, pay off the loan, and have the security deed cancelled”).

Here, the bank argues that it simply postponed the foreclosure proceedings. It argues that the word “withdrawal” indicates “to take back for good” and that the statute’s use of the phrase withdrawal of “such foreclosure proceedings” must therefore be construed to mean “the permanent cessation of foreclosure where the breach has been either cured or expressly waived.”

We have previously construed “withdraw,” as it is used in OCGA § 44-14-85 (a), to entail a voluntary act by the lender. See Rapps v. Cooke, 246 Ga. App. 251 (540 SE2d 241) (2000). In that case we construed the statute’s use of “withdraw” in the context of the stay arising from the borrowers’ bankruptcy. We observed that when construing a statute,

a court must first look to the literal meaning of the act, and if the language is plain and does not lead to absurd or impractical consequences, the court has no authority to place a different construction upon it but must construe it according to its terms. In so doing, we give due weight and meaning to all of the words of the statute.

Id. at 254-255 (2). Citing Black’s Law Dictionary, we then concluded that because “to withdraw means ‘to take from’ or to ‘remove[,]’ [t]he word connotes voluntary action.” Id. Because the lenders took no voluntary action inconsistent with their intent to foreclose — since the reason for the cessation of the foreclosure proceedings was the borrowers’ bankruptcy, not anything the lenders did — “it [could not] be said that they withdrew foreclosure proceedings within the meaning of OCGA § 44-14-85.” Id. Here the bank contends that, like the lenders in Rapps, the bank “never took any action that was inconsistent with [its] intent to foreclose on the property.” Id.

After Jennifer Littleton called the bank’s foreclosure counsel, counsel took no further steps to proceed with the foreclosure sale scheduled for July 6, 2004, and the sale did not occur. Counsel agreed to “start reviewing” the records. Jennifer Littleton continued to communicate with foreclosure counsel trying to resolve the issues. But foreclosure counsel continued to advertise the Littletons’ property for foreclosure in October 2004, November 2004, and January 2005, ultimately foreclosing on the Littletons’ property on January 4, 2005.

Decided July 16, 2014.

Ballard Spahr, Christopher J. Willis, Stefanie H. Jackman, Charley F. Brown, for appellant.

Pamela L. Coleman, Sell & Melton, Edward S. Sell III, for appellees.

We therefore conclude that the trial court erred in granting summary judgment on the basis that, as a matter of law, the bank’s actions constituted a withdrawal of foreclosure proceedings within the meaning of OCGA § 44-14-85.

Judgment reversed.

Barnes, P. J., and McMillian, J., concur.

       During the course of the litigation, the trial court substituted bankruptcy trustee J. Coleman Tidwell for Jennifer Littleton as plaintiff; the plaintiffs are Tidwell and Truman Littleton.