author: Branch, Judge.

text:
    A14A0683.
    BODIFORD v. THE STATE.
    (761 SE2d 818)
   Branch, Judge.

Ricardo Breshard Bodiford appeals from an order of the Henry County Superior Court denying his motion to suppress cocaine discovered in his car during a traffic stop. Bodiford asserts that the trial court erred in denying his motion to suppress because police discovered the cocaine only after the arresting officer impermissibly prolonged the traffic stop for the purpose of conducting a drug investigation, and because the officer lacked a legal basis for expanding the scope of the traffic stop beyond its original purpose. We agree with Bodiford and therefore reverse the trial court’s order.

At a hearing on a motion to suppress, the trial judge sits as the trier of fact. Gonzalez v. State, 299 Ga. App. 777, 778 (1) (683 SE2d 878) (2009). On appeal from the grant or denial of such a motion, therefore, this Court

must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous. However, we owe no deference to the trial court’s conclusions of law and are instead free to apply anew the legal principles to the facts.

State v. Able, 321 Ga. App. 632-633 (742 SE2d 149) (2013) (punctuation and footnote omitted).

The relevant facts in this case are undisputed and the record shows that while patrolling 1-75 on the evening of October 30, 2012, Officer Jason Hart of the Henry County Police Department performed a traffic stop of a car being driven by Bodiford after Hart detected the car traveling ten miles per hour over the posted speed limit- Hart initiated the traffic stop at 6:40 p.m., and a video recording of that stop was introduced into evidence at the hearing on the motion to suppress.

Hart testified that when he asked Bodiford for his driver’s license, Bodiford appeared visibly nervous; his right hand was shaking, he was breathing heavily, and sweat was beginning to bead on his forehead. The officer therefore asked Bodiford to step out of his vehicle while Hart wrote him a courtesy warning. The video of the stop shows that Hart thereafter retrieved his citation book from his patrol car and then spent approximately two-and-one-half minutes writing Bodiford a warning ticket, conversing with Bodiford as he did so. The video shows that Hart explained the warning to Bodiford, and Bodiford appears to sign the citation. After he completed writing and explaining the warning, however, Hart did not give the ticket to Bodiford or return Bodiford’s license. Rather, at that point, approximately six-and-one-half minutes after the traffic stop had begun, Hart questioned Bodiford about the status of his driver’s license and told Bodiford the officer would need to run a check of the same. According to Hart, his standard practice was to refrain from running a license check until at or near the time he had completed writing the traffic citation.

The video of the traffic stop shows Hart standing between Bodiford’s car and his patrol car, using his shoulder-mounted radio to provide dispatch with Bodiford’s driver’s license number. After transmitting the license information to dispatch, Hart asked Bodiford whether he had any contraband in the car, such as drugs, guns, or excessive amounts of cash. When Bodiford responded negatively, Hart asked for permission to search the car. Bodiford questioned Hart as to whether he was required to consent to an automobile search, and Hart explained that Bodiford had a constitutional right to refuse, but that if Bodiford refused consent, “what I’m gonna do is, I’m gonna get my dog out of the [patrol] car, run my dog around [your] car and see if he shows any positive odor response on the vehicle.” When Bodiford refused to give an unequivocal “yes” to Hart’s request for consent to search the car, the officer patted him down, instructed him to stand away from his car and next to Hart’s patrol car, and asked for and received permission to turn off Bodiford’s car.

After turning off Bodiford’s car, and approximately nine minutes into the traffic stop, Hart returned to his patrol car to retrieve his dog. Although Hart cannot be seen on camera at this point, dispatch can be heard very clearly on the radio attempting to contact Hart. Hart, however, did not respond to the dispatcher. At the hearing below, Hart testified that he heard dispatch attempting to reach him, but explained that he did not respond because he was “in [the] process of hooking my lead up to my dog and I didn’t want to take my hands off it in order to key up on the radio.” The officer acknowledged, however, that at the time he received the radio call, he had not yet removed his dog from the patrol car. After Hart failed to respond to the radio call, the dispatcher can be heard on the recording making a second attempt to reach the officer. Seven seconds later, as he was standing together with his dog next to Bodiford’s car, Hart responded to the radio call, telling the dispatcher, “I’m in a bad spot here.” Hart testified that his response resulted from the fact that radio service on the part of 1-75 where the traffic stop was occurring was “very poor” and that “90 percent of the time” officers in that area would need to use the radio in their patrol car to speak with dispatch. Hart further explained that once dispatch was told he was in a bad spot for radio, the dispatcher would know she should make no further attempts to contact him; rather, the dispatcher would wait for Hart to contact her.

Having thus instructed dispatch not to initiate any further contact with him, Hart walked his dog around Bodiford’s car. The dog indicated that there was contraband in the car and Hart then searched the vehicle. During that search, the officer found a large quantity of cocaine located underneath a passenger-side seat. Based on this discovery, Hart arrested Bodiford.

Savannah Black was the Henry County dispatcher with whom Hart had contact during the incident in question. She testified that dispatch operators fulfill two general functions with respect to traffic stops. First, dispatchers create a computer-aided dispatch (“CAD”) report for every traffic stop conducted. Second, the operators log all relevant information into those CAD reports as the information is received. Such information would include the make, model, and tag number of the car being stopped and the license information of the driver. According to the CAD report generated in connection with the stop of Bodiford, Black sent Bodiford’s driver’s license information to the GCIC at 6:46:13 p.m., and the results of that check were transmitted back to her two seconds later, at 6:46:15 p.m. At 6:48:14 p.m., Black logged that information into the CAD report, and she testified that as a matter of routine practice, her next step would be to communicate the results of the license check to the requesting officer. The record shows that Black’s first attempt to contact Hart occurred at 6:48:45 p.m., or approximately 30 seconds after Black logged the information received from GCIC regarding Bodiford’s license into the CAD report.

Following his arrest, Bodiford was indicted on a single count of trafficking in cocaine. Prior to trial, he moved to suppress the cocaine found in his car, arguing that it resulted from an illegal detention. After holding an evidentiary hearing on that motion, the trial court denied the same but granted Bodiford a certificate of immediate review. Bodiford then filed an application for an interlocutory appeal, which this Court granted. This appeal followed.

1. On a motion to suppress contraband discovered during a traffic stop, “[t]he State bears the burden of proving that the search of the car was lawful, and to carry this burden, the State must show that it was lawful to detain [Bodiford] until the time the drug dog indicated the presence of drugs.” Dominguez v. State, 310 Ga. App. 370, 372 (714 SE2d 25) (2011) (citation omitted). As our Supreme Court has recently explained, claims that an officer illegally prolonged a detention resulting from a traffic stop generally fall into two categories. The first category involves those cases where the officer allegedly extended the stop ‘beyond the conclusion of the investigation that warranted the detention in the first place,” i.e., whether the officer prolonged the stop after concluding his investigation of the traffic violation. Rodriguez v. State, 295 Ga. 362, 369 (2) (b) (761 SE2d 19) (2014) (citation omitted). In such cases, courts have “generally . . . concluded” that even a “[short] prolongation” is “unreasonable unless ... good cause has appeared in the meantime to justify a continuation of the detention to pursue a different investigation.” Id. In the second category of cases, the detention is not extended

beyond the conclusion of the investigation that originally warranted the detention, but it is claimed that the investigation took too long .... In these cases, the courts examine “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. United States v. Sharpe, 470 U. S. 675, 686 (II) (B) (105 SCt 1568, 84 LE2d 605) (1985).”

Id. In either type of case, the touchstone of our analysis is the reasonableness of the investigating officer’s conduct, i.e., we ask whether the officer’s conduct in prolonging the stop was reasonable given the objective facts known to the officer and the circumstances underwhichhe was working. See Walker v. State, 314 Ga. App. 67, 73 (2) (722 SE2d 887) (2012); Young v. State, 310 Ga. App. 270, 273 (712 SE2d 652) (2011). See also Rodriguez, 265 Ga. at 369-370 (2) (b) (“[i]n the end, the question is whether the detention was appreciably prolonged, considering the detention as a whole, and keeping in mind that the touchstone of our inquiry is reasonableness”) (citation and punctuation omitted). The question of reasonableness is one of law. See Nash v. State, 323 Ga. App. 438, 442 (746 SE2d 918) (2013) (in reviewing a motion to suppress resulting from a traffic stop, this Court examines whether police conduct was reasonable, based upon the facts of record); Heard v. State, 325 Ga. App. 135, 137 (751 SE2d 918) (2013).

Bodiford alleges that Hart unreasonably prolonged the traffic stop by extending it after he had completed the investigation of the traffic violation. In support of this argument, Bodiford points to the fact that Hart failed to initiate a check of Bodiford’s driver’s license at the earliest practicable time during the traffic stop, but instead waited until after he had completed all other aspects of his investigation, including the writing of the traffic citation. See Weems v. State, 318 Ga. App. 749, 751-752 (1) (734 SE2d 749) (2012) (holding that an officer’s decision to delay initiating a license check until after he had completed all other tasks associated with his investigation of a traffic violation, including writing the ticket, unreasonably prolonged the stop given that the record showed “no apparent reason ... justifying] the officer’s decision” to proceed in that fashion). See also St. Fleur v. State, 296 Ga. App. 849, 851-852 (1) (676 SE2d 243) (2009) (“[i]t does not unreasonably expand the scope or duration of a valid traffic stop for an officer to prolong the stop to immediately investigate and determine if the driver is entitled to continue to operate the vehicle by checking the status of the driver’s license, insurance, and vehicle registration”) (punctuation and footnote omitted; emphasis supplied); Young, 310 Ga. App. at 273 (finding that a traffic stop was not unreasonably prolonged by an officer’s decision to call a K-9 unit to the scene while awaiting the results of license checks on the driver and passenger where there was “no evidence to suggest that the officer delayed in” running those checks).

Alternatively, Bodiford argues that Hart extended the traffic stop by failing to pursue immediately and diligently the available means of investigation so as to complete quickly his investigation of the traffic violation that precipitated the stop. Specifically, Bodiford contends that Hart failed to pursue diligently his investigation of the traffic violation when he ignored the dispatcher’s initial attempt to contact him with the results of the license check and then instructed the dispatcher not to make any further attempt to contact him. We find that regardless of whether Hart had some reason to delay initiating the check of Bodiford’s license, his subsequent refusal to have any contact with dispatch, despite his knowledge that he was awaiting the results of the license check, unreasonably prolonged the traffic stop.

As noted above, the general rule is that an officer may run a check of the driver’s license of both the car’s driver and any passengers without unreasonably prolonging a traffic stop. St. Fleur, 296 Ga. App. at 852 (1). This rule, however, assumes that the time involved in running license checks will be relatively brief, and any undue delay in that process could render the length of the detention unreasonable. See Salmeron v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006) (“ ‘(a) seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.’ Illinois v. Caballes, 543 U. S. 405, 407 (125 SCt 834, 160 LE2d 842) (2005)”). Thus, the law does not allow an officer unilaterally to extend the time reasonably required for a traffic stop by knowingly avoiding communication with dispatch after requesting a license check. See Rodriguez, 295 Ga. at 369 (2) (b) (whether police unreasonably prolonged a traffic stop depends upon “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly”) (citation and punctuation omitted); Salmeron, 280 Ga. at 736 (1). In this case, Hart unilaterally extended the time for the traffic stop by failing to respond to dispatch.

The record shows that dispatch attempted to contact Hart approximately two minutes and 30 seconds after the officer requested a check of Bodiford’s license. Hart, however, chose to ignore the dispatcher, despite his admitted knowledge that if the license check showed no problems, the traffic stop would be at an end and Bodiford would be free to go. According to Hart, he heard the dispatch but did not respond because he was “in [the] process of hooking my lead up to my dog and I didn’t want to take my hands off it.” Hart admitted, however, that he had not yet removed his dog from the car at this point. After he had retrieved his dog from his patrol car and walked toward Bodiford’s car, Hart responded to the dispatcher’s second attempt to reach him but told her that he was in a “bad spot” for radio reception, thereby signaling the dispatcher that she should make no further effort to contact him. Hart’s actions thereby ensured that the traffic stop would be prolonged at least until he had the opportunity to have his dog perform a free-air sniff around Bodiford’s car.

Despite these facts, the State argues that we have no basis for reversing the trial court’s order, given the court’s legal conclusion that the Fourth Amendment is violated only when an officer “purposefully delay[s] the investigation [of the traffic violation] without an articulable reasonable suspicion of criminal activity” and that Hart did not act “purposefully.” The trial court’s legal conclusion, however, is erroneous. The law is well established that the question of whether a traffic stop was reasonable under the Fourth Amendment does not depend upon the subjective motives, beliefs, or intentions of the individual officers involved. See Whren v. United States, 517 U. S. 806, 813 (II) (A) (116 SCt 1769, 135 LE2d 89) (1996) (“[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,” and “the constitutional reasonableness of traffic stops [does not] depend[ ] on the actual motivations of the individual officers involved”); Maryland v. Macon, 472 U. S. 463, 470-471 (II) (A) (105 SCt 2778, 86 LE2d 370) (1985) (“[w]hether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time, and not on the officer’s actual state of mind at the time the challenged action was taken”) (citation and punctuation omitted); Rodriguez, 295 Ga. at 371, n. 13 (an officer’s subjective beliefs and intentions are not dispositive factors in determining whether the officer acted reasonably under the Fourth Amendment); Oglesby v. State, 311 Ga. App. 615, 617 (716 SE2d 742) (2011) (“[w]hen analyzing whether a person has been unconstitutionally seized, we are not bound by the investigating officer’s subjective belief”) (citation and punctuation omitted); In the Interest of A. A., 265 Ga. App. 369, 372 (1) (593 SE2d 891) (2004) (“the officer’s subjective belief that he had authority to detain the juveniles is not controlling”) (citation omitted). Rather, as noted above, our analysis requires us to determine whether the officer’s conduct was reasonable “based upon the objective facts known to the officer at the time.” Oglesby, 311 Ga. App. at 618 (citation omitted).

The State contends that Hart’s conduct was reasonable because he had no way of knowing that the dispatcher was attempting to provide him with the results of Bodiford’s license check. In support of this argument, the State relies on Black’s testimony that a dispatcher is required to run periodic “status checks” on any officer who initiates a traffic stop by making contact with the officer at specified intervals. The first such check is supposed to occur four minutes after the stop is initiated and checks should thereafter be done every five minutes until the stop is completed. If an officer makes contact with dispatch before time for the next scheduled status check, that contact restarts the clock, with the next check being due five minutes following dispatch’s last contact with the officer. Black testified that she could not say whether she was attempting to contact Hart with the results of Bodiford’s license check, or because she was due to make a status check on him.

The fact that dispatch might have been attempting to reach Hart simply for a status check, however, does not control our analysis. Rather, the question is whether Hart’s conduct in refusing contact with dispatch was reasonable, given the facts of which Hart did have knowledge. The facts known to Hart were that he had requested the license check; that he was waiting for dispatch to provide him with the results of that license check; and that if the check showed that Bodiford’s license was valid, the traffic stop would be at an end and Bodiford would be free to go. Given this knowledge, and in the absence of any extenuating circumstances, the Fourth Amendment’s requirement that Hart diligently pursue his investigation so as to minimize the time of a motorist’s detention meant that Hart was required to respond promptly to any efforts by dispatch to contact him.

The State argues that despite his knowledge that he was awaiting the results of Bodiford’s license check, Hart’s decision not to respond to dispatch was reasonable because poor radio reception meant that Hart could not communicate with dispatch via his shoulder-mounted radio and that requiring Hart to leave Bodiford unattended while he used his car radio would have presented an unreasonable danger to the officer. This argument is not supported by the record.

We first note that the trial court did not make any factual finding that Hart and the dispatcher were in fact experiencing problems communicating with each other. Rather, the trial court’s factual findings simply reflect the fact that Hart “advise[d] the dispatcher that he [was] in a bad area for radio traffic (i.e., cancels checks on him) .” Moreover, we have carefully reviewed the testimony of record, and neither Hart nor the dispatcher testified that they were actually experiencing problems communicating with each other. Instead, both testified only that radio service was known to be poor on that part of 1-75 where the traffic stop occurred, and Hart further testified that “90 percent of the time” officers in that area would need to use the radio in their patrol car to speak with dispatch. Additionally, the video shows that Hart and the dispatcher had no difficulty communicating with one another via Hart’s shoulder-mounted radio. The recording of the stop shows Hart standing on the side of the road, speaking into the radio and providing dispatch with Bodiford’s driver’s license information; the dispatcher does not indicate that she is having any problems understanding Hart, and she never asks Hart to repeat anything. Furthermore, the dispatcher can be heard very clearly on the radio attempting to contact Hart, and no static or other interference can be heard. Additionally, Hart had no problem communicating to dispatch that he was in a “bad spot” for radio.

Even construing the evidence as showing that Hart and the dispatcher were having problems communicating via Hart’s shoulder-mounted radio, however, there was no evidence of any extenuating circumstances, such as concern for officer safety, that prevented Hart from responding to dispatch by using the radio in his patrol car. The record shows that by the time dispatch attempted to contact him, Hart had frisked Bodiford for weapons and had found none. Additionally, Bodiford, who cooperated completely with Hart throughout the traffic stop, was standing away from his car and next to Hart’s patrol car as instructed by Hart. Accordingly, given the lack of extenuating circumstances, the fact that Hart and dispatch may have had some problems communicating over Hart’s shoulder-mounted radio did not relieve Hart of his responsibility to respond to dispatch before extending the traffic stop any further. The fact that Hart did not want to interrupt the process of retrieving the police dog, which was still in his patrol car, to respond to dispatch does not change this analysis.

Based on the facts of record, we find that Hart’s conduct unreasonably prolonged the traffic stop of Bodiford and that, absent a valid reason for extending the stop beyond the investigation of the traffic violation, the search of Bodiford’s car resulted from his illegal detention.

2. An officer may continue to detain a driver after the investigation of the traffic violation is complete only if the officer has “a reasonable, articulable suspicion that [the driver] was engaged in other illegal activity.” Valentine v. State, 323 Ga. App. 761, 765 (2) (748 SE2d 122) (2013) (citation omitted). In its brief the State points to no evidence, other than the fact that the police dog alerted on Bodiford’s car, that would support an extension of the traffic stop beyond its original scope. As explained in Division 1, however, the free air sniff occurred as a result of Hart’s decision to expand the traffic stop beyond its original purpose, and it therefore cannot serve as a basis for Bodiford’s continued detention. Moreover, Hart testified that if Bodiford’s license check showed no problems with the license and no outstanding warrants for Bodiford, the traffic stop would be concluded and Bodiford would be free to go.

Additionally, Hart testified that he suspected that Bodiford was engaged in criminal conduct because of the extreme nervousness Bodiford displayed at the outset of the traffic stop. According to Hart, when he saw someone who displayed such signs of nervousness during a traffic stop, he took that as an indication that the person might be involved in illegal activity “and I’d like to investigate further.” This Court, however, has repeatedly held that “nervousness alone cannot provide reasonable suspicion of criminal activity.” Bell v. State, 295 Ga. App. 607, 610 (2) (672 SE2d 675) (2009) (footnote omitted). See also Rosas v. State, 276 Ga. App. 513, 516 (1) (b) (624 SE2d 142) (2005) (“[w]e have consistently held that ‘nervousness alone’ is not sufficient to establish reasonable suspicion to detain and investigate illicit drug activity”) (footnote omitted); State v. Harris, 261 Ga. App. 119, 122 (581 SE2d 736) (2003) (“[n]ervousness in police presence, standing alone, provides no articulable suspicion” of criminal activity and cannot serve as the basis for prolonging a traffic stop) (footnote omitted); Barraco v. State, 244 Ga. App. 849, 852 (2) (b) (537 SE2d 114) (2000) (“[e]ven when other factors are present, nervous behavior of a person who has been stopped by an armed law enforcement officer is not an unusual response and is not necessarily strong evidence to support either reasonable suspicion or probable cause”). Accordingly, Hart had no basis for prolonging the traffic stop beyond the time reasonably required to complete his investigation of Bodiford’s traffic violation. The search of Bodiford’s car, therefore, resulted from an illegal detention. Given this fact, we reverse the order of the trial court and remand the case with direction to grant Bodiford’s motion to suppress.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Boggs, J., concur.

Decided July 14, 2014.

Daniel F. Farnsworth, for appellant.

James L. Wright III, District Attorney, Jordan K. Van Matre, Blair D. Mahaffey, Assistant District Attorneys, for appellee.

       Hart testified that the video accurately reflects the traffic stop.

       The license check showed that Bodiford’s license was valid and that there were no outstanding warrants on Bodiford.

       Surprisingly, the trial court characterized Weems, on which Bodiford relied below, as "only a three-judge panel decision” of this Court, a sentiment echoed by the State on appeal. We note that in Weems, this Court reversed this same trial court judge after he denied a motion to suppress involving this same officer. These similarities not withstanding, we take this opportunity to reiterate that “[a] unanimous decision by a three-judge panel of this Court remains binding precedent until such time as it is modified or reversed by this Court en banc or our Supreme Court.” Evergreen Packaging v. Prather, 318 Ga. App. 440, 445, n. 15 (734 SE2d 209) (2012).

       The record shows that dispatch spoke with Hart at 6:46:13 p.m., when he contacted Black with Bodiford’s license information. Thus, dispatch was not scheduled to make a status check of Hart until approximately 6:51:13 p.m. Black first attempted to contact the officer, however, at 6:48:45 p.m., approximately thirty seconds after entering into the CAD the information received on the return on Bodiford’s driver’s license and almost two minutes and thirty seconds before she was due to make a status check of Hart.

       The trial court further found that “[t]he radio communication problem [could] he overcome by moving into the officer’s car and using the car radio instead of the handheld device.”


source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A14A0692.
    CLARK v. THE STATE.
    (761 SE2d 826)
   Ellington, Presiding Judge.

In March 2012, Kirvin Clark pled guilty to one count of child molestation in the Superior Court of Meriwether County, and the trial court sentenced him to twenty years to serve in prison. Six months later, Clark filed a motion to correct an illegal and/or void sentence, contending, inter alia, that his sentence violated OCGA §§

16- 6-4 (b) (1) and 17-10-6.2 (b). The trial court denied the motion based upon its conclusion that the sentence was not illegal or void because it fell within the sentence allowable under OCGA § 16-6-4 (b) (1). Clark appeals, and, for the reasons explained below, we vacate his sentence and remand this case to the trial court for resentencing.

1. Clark contends that the trial court erred in concluding that his sentence was not illegal or void under OCGA §§ 16-6-4 (b) (1) and 17- 10-6.2 (b). 3We agree.

Under OCGA § 16-6-4 (b)(1), “aperson convicted ofafirst offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.2 and 17-10-7[,]” except in circumstances not applicable to this case. OCGA § 17-10-6.2 (b) provides, in relevant part, as follows:

Except as provided in subsection (c) of this Code section^] and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense [] shall be sentenced to a split sentence[] which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year. . . .

(Emphasis supplied.)

We find that the statute’s express requirement that the trial court issue a “split sentence” that includes the minimum term of imprisonment and at least one year of probation is plain and unambiguous. As a result, the trial court was not authorized to construe the statute so as to allow the 20-year sentence imposed herein. See Inagawa v. Fayette County, 291 Ga. 715, 718 (2) (732 SE2d 421) (2012) (When a statutory provision is clear and susceptible of only one meaning, “judicial construction is both unnecessary and unauthorized.”) (citations and punctuation omitted); Evans v. Employees’ Retirement System of Ga., 264 Ga. 729, 731 (1) (450 SE2d 195) (1994) (“[T]he use of plain and unequivocal language in a legislative enactment obviates any necessity for judicial construction.”) (citation and punctuation omitted).

Further, even if judicial construction of this statute had been authorized, it is axiomatic that courts must strictly interpret penal statutes against the State and, more importantly, that courts are prohibited from interpreting a statute in a manner that renders some of the language superfluous, ineffectual, or meaningless. State v. Hammonds, 325 Ga. App. 815, 818 (755 SE2d 214) (2014); see Jackson v. State, 299 Ga. App. 356, 357, 360 (4) (683 SE2d 60) (2009) (Courts must “give each part of the statute meaning and avoid constructions that make some language mere surplusage. All parts of a statute should be harmonized and given sensible and intelligent effect, because it is not presumed that the legislature intended to enact meaningless language.”) (citation and punctuation omitted). Thus, an interpretation that would allow a court to sentence a defendant to twenty years of imprisonment without probation for a first child molestation conviction would necessarily — and improperly — render the statute’s requirement of a “split sentence” meaningless.

Accordingly, because OCGA § 17-10-6.2 (b) expressly provides that a sentence for a first conviction for child molestation must be a “split sentence” that includes at least the mandatory minimum of five years of imprisonment and at least one year of probation, we must conclude that Clark’s twenty-year sentence of imprisonment is void. It follows that the trial court erred in denying his motion to correct a void sentence. This case is remanded to the trial court for resentencing.

2. Clark contends that OCGA § 17-10-6.2 (b) required the trial court to sentence him to the minimum period of incarceration, i.e., five years under OCGA § 16-6-4 (b) (1), followed by at least one year of probation. However, this Court has resolved this issue adversely to Clark in Bowen v. State, 307 Ga. App. 204, 205 (2) (704 SE2d 436) (2010), in which we ruled that OCGA § 17-10-6.2 (b) “mandates a split sentence for sexual offenders that includes at least the minimum term of imprisonment.” (Emphasis in original.) Thus, the statute authorizes the trial court to issue a split sentence that includes at least five years of imprisonment and at least one year of probation, for a total of no more than twenty years.

3. Clark also contends that the trial court erred in not considering whether he was eligible for a deviation from the minimum term of imprisonment, pursuant to subsection (c) (1) of OCGA § 17-10-6.2.

The State charged Clark with committing child molestation by “touching and rubbing [the victim’s] butt[.]” During the guilty plea hearing, the only relevant fact proffered by the State to support this specific charge was that the victim reported that the defendant “touched her on the butt” while they were at a Meriwether County “drug house.” Although Clark had driven the victim and two of her siblings from Union City to Meriwether County that evening, Clark did not commit the charged offense until later, while they were at the drug house. Therefore, the offense itself did not involve any transportation of the victim or any of the other factors listed in OCGA § 17-10-6.2 (c) (1) that would prohibit the trial court from sentencing Clark under that subsection. See generally Hedden v. State, 288 Ga. 871, 873-876 (708 SE2d 287) (2011).

Further, the hearing transcript shows that the trial court appeared to believe that it had no discretion to sentence Clark to anything less than 20 years of imprisonment. Neither the defense counsel nor the prosecutor informed the trial court that it had the option of using its discretion to sentence Clark under OCGA § 17-10-6.2 (c), and the court did not make any findings regarding, or even refer to, that provision during the guilty plea hearing or in its order denying Clark’s motion to vacate his sentence.

Thus, based upon the record before us, we conclude that the trial court failed to exercise its discretion to consider whether to deviate from the mandatory minimum sentence, pursuant to OCGA § 17-10-6.2 (c) (1), when sentencing Clark. See Tindell v. State, 314 Ga. App. 91, 91-92 (722 SE2d 921) (2012) (The defendant entered a negotiated guilty plea with a recommended sentence of fifteen years, five to serve, and the trial court sentenced him accordingly, while concluding that it had no discretion under OCGA § 17-10-6.2 (c) (1) to sentence him to less than the mandatory minimum sentence for the offense. This Court found that the trial court had erroneously failed to exercise its discretion under that statute, and it vacated the sentence and remanded the case for resentencing.); see also Holland v. State, 310 Ga. App. 623, 629-630 (5) (714 SE2d 126) (2011). Consequently, this error provides an independent basis for vacating Clark’s sentence and remanding this case for resentencing. Tindell v. State, 314 Ga. App. at 92. Although, upon remand, the trial court may decide not to sentence Clark to less than the mandatory minimum sentence under OCGA § 17-10-6.2 (c) (1), “let the exercise of the trial court’s discretion in the imposition of [its] sentence be cast upon the record.” Bradshaw v. State, 237 Ga. App. 627, 630 (2) (516 SE2d 333) (1999) (This Court vacated the defendant’s sentence and remanded the case after finding that the trial court had erroneously concluded that it had no discretion in sentencing the defendant.). See also Hedden v. State, 288 Ga. at 873-876 (The Supreme Court vacated the defendant’s sentence and remanded the case after finding that the trial court had erroneously concluded that it had no discretion, under OCGA § 17-10-6.2 (c), to deviate from the mandatory minimum sentencing provisions set forth in OCGA § 17-10-6.2 (b).); Haynes v. State, 317 Ga. App. 400, 402 (3) (731 SE2d 83) (2012) (accord); Hatcher v. State, 314 Ga. App. 836, 839 (2) (726 SE2d 117) (2012) (accord).

Decided July 14, 2014.

Kirvin Clark, pro se.

Peter J. Skandalakis, District Attorney, Robert N. Peterkin, Assistant District Attorney, for appellee.

4. Given our rulings in the preceding divisions, Clark’s remaining alleged error is moot.

Sentence vacated, and case remanded for resentencing.

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

       “[WJhere a sentence is void, the court may resentence the defendant at any time. A sentence is void if the court imposes punishment that the law does not allow.” (Citation and punctuation omitted.) Marshall v. State, 294 Ga. App. 282, 282-283 (668 SE2d 892) (2008).

       “[TJhe interpretation of a statute is a question of law, which is reviewed de novo on appeal. Because the trial court’s ruling on a legal question is not due any deference, we apply the plain legal error standard of review.” (Citation and punctuation omitted.) State v. Hammonds, 325 Ga. App. 815 (755 SE2d 214) (2014).

       OCGA § 17-10-7, which governs the punishment of repeat offenders, does not apply in this case.

       See Division 3, infra, regarding OCGA § 17-10-6.2 (c).

       Under OCGA § 17-10-6.2 (a) (5), the term “sexual offense” includes a conviction for child molestation under OCGA § 16-6-4 (a).

       Although OCGA § 17-10-6.2 (b) does not expressly define the term “split sentence,” its meaning is clear when read in context with the entire provision. See Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 752 (1) (251 SE2d 250) (1978) (“It is a general principle of statutory law that a statute must be definite and certain in its provisions to be valid, and when it is so vague and indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application, it violates the first essential of due process of law. [However, even if] a statute does not undertake to define each of the words contained therein, this will not automatically render the statute vague, indefinite or uncertain in meaning since [ ] [t]he ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject matter [.]”) (citations and punctuation omitted); see also State v. Hammonds, 325 Ga. App. at 817 (“[I]t is an elementary rule of statutory construction that, absent clear evidence to the contrary, words should he assigned their ordinary, logical, and common meaning.”) (citation and punctuation omitted).

       See Division 2, infra.

       That subsection provides, in relevant part, as follows:
      In the court’s discretion, the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum or provided that:
      (A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of [those] offenses [;]

        (B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;
      (C) The court has not found evidence of a relevant similar transaction;
      (D) The victim did not suffer any intentional physical harm during the commission of the offense;
      (E) The offense did not involve the transportation of the victim; and
      (F) The victim was not physically restrained during the commission of the offense.
      OCGA § 17-10-6.2 (c) (1). See also OCGA § 17-10-6.2 (c) (2) (“If the court deviates in sentencing pursuant to [OCGA § 17-10-6.2 (c) (1)], the judge shall issue a written order setting forth the judge’s reasons. Any such order shall be appealable by the defendant pursuant to Code Section 5-6-34, or by the State of Georgia pursuant to Code Section 5-7-1, unless the sentence imposed was pursuant to an agreement by the prosecuting attorney and the defendant.”).


author: Boggs, Judge.

text:
    A14A0219, A14A0220.
    INTERNET BRANDS, INC. v. JAPE; and vice versa.
    (760 SE2d 1)
   Boggs, Judge.

In these cases consolidated for purposes of appeal, we consider whether the Communications Decency Act of 1996 (“CDA”), 47 USCS § 230, bars Dan Jape’s defamation action against Internet Brands, Inc. We conclude that the CDA does apply to bar Jape’s claim, and therefore hold in Case No. A14A0219 that the trial court erred in denying Internet Brands’ motion for summary judgment. In Case No. A14A0220, we affirm the trial court’s denial of Jape’s motion for sanctions “for abuse of mediation.”

The relevant facts here are undisputed. Internet Brands owns and operates a website for boating enthusiasts, providing a forum for individuals to “chat” and share information related to boating. Registered users, or members, engage in discussion on the website by posting comments under user names they create. According to Patrick Stack, an Internet Brands manager, the website has no moderators, but does have a single administrator. Some members of the website have the ability to delete “spam” posts (“e.g., posts that offer items for sale”). Stack averred that these “spam deleters” are not employees of Internet Brands and are not paid any cash compensation. Spam deleters are not authorized to ban users, remove posts or delete discussion threads, or perform the functions of a moderator or administrator. Members generally have, however, the ability to block another member’s posts from his or her own view.

Norton Alderson, a member and regular user of the website, was one of the website’s spam deleters. He was not a moderator or administrator of the website, was not an employee or contractor of Internet Brands, and was not paid cash compensation.

Jape, a member of the website, was the owner of a business under the name Reliable Heating and Air. When another member posted a thread on the website about a child killed in a boating accident, Jape, under his user name, posted comments about the death of his own daughter whom he explained had drowned in a bathtub years earlier.

Alderson apparently discovered Jape’s real name, and found information about Jape from another website that discussed or made reference to documents related to the bankruptcy of Jape’s business, domestic violence between Jape and his wife, circumstances surrounding his divorce, and affidavits for Jape’s arrest for various crimes. Alderson also discovered court documents which included an affidavit and letter submitted by Jape’s daughter years prior to her death, accusing Jape of being a drug user and physically as well as verbally abusive. Alderson posted comments about what he had discovered, included a link to the website where he discovered the information, and questioned Jape’s version of the circumstances surrounding his daughter’s death.

Jape responded to a number of Alderson’s posts and disputed the information. When he attempted to block Alderson’s posts from his view, he received the following error message: “Sorry [Alderson] is a moderator/admin and you are not allowed to ignore him or her.” Internet Brands asserted that while Alderson was not a moderator or administrator, the “ignore” function of the website software “does not have the technical capability to distinguish between individuals given the ability within the software to delete spam posts and moderators or administrators.” “Thus, if a person attempts to ignore a spam deleter, they are sent the same message.”

Jape subsequently filed a complaint against Internet Brands, Alderson, and three John Does for defamation. Following some discovery, Internet Brands moved for summary judgment on the ground that it is immune from liability under the CDA, and alternatively on the ground that the statements made were not defamatory. The trial court denied the motion for summary judgment, and Internet Brands now appeals.

Case No. A14A0219

1. Internet Brands asserts that the trial court erred in denying its motion for summary judgment.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c).

(Citations and punctuation omitted.) Woodcraft by MacDonald, Inc. v. Ga. Cas. & Sur. Co., 293 Ga. 9, 10 (743 SE2d 373) (2013).

Internet Brands argues that the CDA bars Jape’s claim for defamation. The CDA provides in relevant part:

Protection for “Good Samaritan” blocking and screening of offensive material. (1) Treatment of publisher or speaker. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

47 USCS § 230 (c) (1). The CDA “precludes plaintiffs from holding interactive computer service providers liable for the publication of information created and developed by others.” Nemet Chevrolet v. Consumeraffairs.com, Inc., 591 F3d 250, 252 (4th Cir. 2009). It

bars the institution of a “cause of action” or imposition of “liability” under “any State or local law that is inconsistent” with the terms of § 230 .... Congress thus established a general rule that providers of interactive computer services are liable only for speech that is properly attributable to them. State-law plaintiffs may hold liable the person who creates or develops unlawful content, but not the interactive computer service provider who merely enables that content to be posted online.

(Citations and punctuation omitted.) Ascend Health Corp. v. Wells, 2013 U. S. Dist. LEXIS 35237 at *20-21 (E.D. N.C. 2013).

In enacting the CDA, Congress made the following findings:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

47 USCS § 230 (a). Congress also declared that the “policy of the United States” is to, among other things,

promote the continued development of the Internet and other interactive computer services and other interactive media [,] preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation [, and] encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services [.]

47 USCS § 230 (b) (l)-(3). Moreover, courts have “consistently... held that § 230 provides a ‘robust’ immunity, and that all doubts must be resolved in favor of immunity.” (Citations and punctuation omitted.) Holomaxx Technologies Corp. v. Microsoft Corp., 2011 U. S. Dist. LEXIS 94316 (III) (A) (N.D. Ca. 2011).

While there are no Georgia cases applying the CD A, U. S. District and Circuit Court cases construing the federal law are instructive.

As explained in Dimeo v. Max, 433 FSupp.2d 523 (E.D. Pa. 2006),

[t]hree elements are required for § 230(c)(1) immunity. First, the defendant must be a provider or user of an “interactive computer service.” Second, the asserted claims must treat the defendant as a publisher or speaker of information. Third, the challenged communication must be “information provided by another information content provider.”

Id. at 529 (II) (1) (a). As found by the trial court, this third element is the subject of the parties’ disagreement: the challenged communication must be “information provided by another information content provider.” The CDA defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 USCS § 230 (f) (3).

A website operator can be both a service provider[] and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is “responsible, in whole or in part” for creating or developing, the website is also a content provider.

Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F3d 1157, 1162-1163 (9th Cir. 2008).

Internet Brands argues that the CD A bars Jape’s claim because the statements were made by another information content provider, Alderson, not Internet Brands. Jape counters that because Internet Brands held Alderson out as a moderator/administrator and gave him the authority to reject users’ attempts to block him, he acted as an agent of Internet Brands, and therefore Internet Brands was also a content provider and not entitled to immunity.

The trial court, in denying Internet Brands’ motion for summary judgment, found that

Alderson was not an employee of Internet Brands. He was used by Internet Brands merely to delete spam blog posts. He could not ban users or move posts. Although website users could block some posts from their view, Alderson’s posts could not be blocked by virtue of his role as a spam deleter.

The court concluded: “The protection of Alderson’s posts that was granted based on his role as a spam deleter supports an argument that [Internet Brands] endorsed his posts’ content in some capacity. The existence of any endorsement is a matter for the factfinder to determine.”

But the test is not whether the objectionable content was “endorsed,” but instead whether the content was “independently created or developedby third-party users.” Levitt v. Yelp! Inc., 2011 U. S. Dist. LEXIS 124082 at *20 (N.D. Ca. 2011). And the parties do not dispute that the objectionable content was created by Alderson. Internet Brands would be immune from suit had it removed some content while publishing other content, or changed the order of appearance of content. See Fair Housing Council, supra, 521 F3d at 1169-1170. It would also be immune from liability for allowing Alderson’s posts while rejecting any information Jape attempted to post. See Batzel v. Smith, 333 F3d 1018, 1031 (III) (C) (2) (9th Cir. 2003) (party’s alteration of e-mail prior to posting or choice to publish e-mail by rejecting other e-mails for inclusion in listserve does not rise to the level of “development”). Under this reasoning, we conclude that allowing Alderson to post content while rejecting Jape’s attempt to block those posts from his view does not convert Alderson’s posts into ones created or developed by Internet Brands. See, e.g., Ascentive, LLC v. Opinion Corp., 842 FSupp.2d 450, 475-476 (II) (C) (3) (E.D. N.Y. 2011) (defendants’ invitation to content providers to submit negative reviews and their alteration of the way such postings were displayed, not development of information for CDA purposes); compare Fraley v. Facebook, Inc., 830 FSupp.2d 785, 801-803 (IV) (B) (N.D. Ca. 2011) (allegation that defendant rearranged text and images provided by members and grouped that content in a particular way with third-party logos transforming the character of plaintiff’s words, photographs, and actions was sufficient to withstand motion to dismiss).

Internet Brands was not an information content provider because it did not create or develop the content posted by Alderson, nor did it transform Alderson’s posts such that it became the developer or creator. See Fraley, supra. Internet Brands therefore could not be considered the publisher or speaker of that information and is entitled to immunity under 47 USCS § 230 (c) (1). The trial court erred in denying Internet Brands’ motion for summary judgment on this ground.

2. Internet Brands’ remaining enumerations are rendered moot by our holding in Division 1.

Case No. A14A0220

3. Jape argues that the trial court erred in refusing to enforce sanctions against Internet Brands for abuse of mediation after the parties’ unsuccessful attempt to reach a settlement agreement. During mediation, Jape presented a term of settlement that Internet Brands’ corporate representative considered to be a noncustomary “extraordinary” term. Although the representative had the authority to simply reject the term, she contacted Internet Brands’ general counsel and CEO to consult with them on the matter. Following that discussion, Internet Brands rejected the term presented by Jape, and the mediation ended.

Jape argues that Internet Brands violated Alternative Dispute Resolution Rule 4.1 which provides in part: “The appearance of all parties is required at mediation conferences. In every process, the presence of a representative with authority to settle without further consultation is required if the decision to settle depends upon an entity other than a party.” (Emphasis supplied.) But this rule is inapplicable here because the decision to settle did not depend upon any entity other than Internet Brands. And while the corporate representative consulted with Internet Brands’ general counsel and CEO during mediation, she had the authority to settle even without doing so.

Decided June 24, 2014 —

Reconsideration denied July 15, 2014.

Alston & Bird, David J. Stewart, Nadya M. Sand, Elizabeth H. Jordan, for appellant.

John T. Longino, for appellee.

Jape’s argument here is wholly without merit, and the trial court did not abuse its discretion in denying his motion for sanctions. See generally Robinson v. Williams, 280 Ga. 877, 878 (1) (635 SE2d 120) (2006) (absent a showing of abuse of trial court’s discretion, appeals court will not reverse court’s ruling regarding sanctions); Hamilton v. Shumpert, 299 Ga. App. 137, 139 (1) (682 SE2d 159) (2009) (same).

Judgment affirmed in Case No. A14A0220. Judgment reversed in Case No. A14A0219.

Barnes, P. J., and Branch, J., concur.

       Jape asserts that Alderson received a free membership to the website as compensation for his role as a spam deleter, but has failed to point to evidence of this in the record.

       We note that “[w]hiie we are at liberty to consider foreign authority, the appellate courts of this state are not bound by decisions of other states or federal courts except the United States Supreme Court.” (Citation and punctuation omitted.) Balmer v. Elan Corp., 278 Ga. 227, 229-230 (2) (599 SE2d 158) (2004).

       “Interactive computer service” is defined as
      any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
      47 USCS § 230 (f) (2). It is undisputed that Internet Brands is an “interactive computer service.”

       Jape argues that because Internet Brands held Alderson out as a “moderator/admin,” Alderson was an agent of Internet Brands, and therefore Internet Brands is liable for defamation. But even if the message generated by Internet Brands’ software that Alderson was a moderator or administrator created an issue of fact as to whether Alderson was in fact vested with those titles, such evidence fails to create an issue of fact regarding whether Alderson was acting as Internet Brands’ agent when he posted the objectionable statements. There is no evidence to show that a moderator/administrator is an agent or employee of Internet Brands, or that the posts were made within the scope of any agency, and Jape has pointed to none. Cf. Blumenthal v. Drudge, 992 FSupp. 44, 50 (D. D.C. 1998).

       Internet Brands’ motion for a frivolous appeal penalty is denied.


author: ANDREWS, Presiding Judge.

text:
    A14A0232.
    LEE HADDOCK & ASSOCIATES, LLC et al. v. BARLOW.
    (759 SE2d 622)
   ANDREWS, Presiding Judge.

Lee Haddock & Associates, LLC (LHA), a residential building contractor, entered into a contract with Phillip R. Barlow for construction of a residence for Barlow. The parties mutually ended their contractual relationship before LHA completed construction of the residence, and LHA sued Barlow seeking recovery of damages on the basis of breach of contract (including attorney fees pursuant to OCGA § 13-6-11) and other theories. Barlow answered, denied liability, and asserted counterclaims against LHA and Lee Haddock, individually, seeking damages on the basis of breach of contract, negligence, and fraud. After LHA failed to submit its portion of the proposed pre-trial order, the trial court adopted Barlow’s portion of the proposed pre-trial order as the final pre-trial order controlling the case. The case was tried in a bench trial during which the court denied LHA’s motion to amend the final pre-trial order to include its breach of contract claim and attorney fees claim. At the conclusion of the trial, the court (1) refused to consider evidence admitted during the trial in support of LHA’s breach of contract claim (because the claim was not included in the final pre-trial order) and entered an order dismissing that claim, and (2) entered a judgment in favor of Barlow on his counterclaims for breach of contract, negligence, and fraud, including the award of attorney fees, expenses, and punitive damages. LHA and Haddock appeal.

For the following reasons, we reverse the trial court’s dismissal of LHA’s breach of contract claim (and related attorney fees claim), vacate the judgment entered in favor of Barlow, and remand the case with directions: (1) that the court consider the evidence previously admitted in support of LHA’s breach of contract claim along with all the other evidence previously admitted in the case; (2) that the court permit LHA to introduce additional evidence in support of its claim for attorney fees pursuant to OCGA § 13-6-11; and (3) that the court reconsider all the evidence and enter a new judgment in the case.

1. We agree with LHA that the trial court erred by denying its motion to amend the final pre-trial order; by refusing to consider evidence admitted in support of its breach of contract claim (and related attorney fees claim); and by dismissing that claim at the conclusion of the trial on the basis that LHA forfeited consideration of the merits of the claim when it failed to submit its portion of the pre-trial order.

After LHA filed its complaint and Barlow answered and asserted counterclaims, the trial court set a pre-trial hearing on January 24, 2011, at which the parties were each required to file their proposed portion of the final pre-trial order to be entered by the court. Barlow and his counsel appeared and filed Barlow’s portion of the pre-trial order, but LHA and its counsel did not appear and did not file LHA’s portion of the pre-trial order. The trial court informed LHA’s counsel that if LHA’s portion of the pre-trial order was not filed within two weeks of the hearing, Barlow’s portion of the pre-trial order would be made the final pre-trial order which would control the trial of the case. LHA did not thereafter file its portion of the pre-trial order, and on March 28, 2011, the trial court entered an order making Barlow’s amended pre-trial order (filed on March 28, 2011) the final pre-trial order in the case. The trial court subsequently gave LHA and its counsel an opportunity to move to amend the final pre-trial order within ten days of June 6, 2011, but no motion to amend was filed during that period.

The bench trial of the case commenced on October 12, 2011, with the parties represented by counsel. The case was tried intermittently over four days: October 12, 2011; November 1, 2011; December 20, 2011; and March 7, 2012. The only claim advanced by LHA against Barlow at the trial was a claim for breach of contract for amounts it claimed remained unpaid for work completed before the parties mutually ended the contract. Prior to presentation of evidence on October 12, the trial court noted that it had entered an order making Barlow’s portion of the pre-trial order the final pre-trial order controlling the issues in the case. The court stated that, although this was not “exactly akin to a default judgment being entered, it certainly constrains what can be presented in terms of the evidence in the case.” Nevertheless, the court found that the final pre-trial order “indicates that the first issue for the Court to decide is whether the parties’ agreement was breached and by whom.” Based on that language in the final pre-trial order, the court stated that,

I will allow [LHA] to put up some evidence with respect to that breach-of-contract claim that appears to still be at least contemplated by the pretrial order... but I’m probably going to pretty closely limit what evidence I’m going to allow you to put up on that particular issue.

When counsel for Barlow pointed out that, although the final pre-trial order stated breach of contract was an issue, it did not present any issue as to whether LHA was entitled to damages for breach of contract, the trial court responded by adjusting its instructions to counsel on the admission of evidence in support of LHA’s breach of contract claim, as follows:

And so it’s an unusual situation, and I’ll just have to see how the evidence unfolds. And if you think there are appropriate objections to be made based on where we are procedurally, what I may do, as I indicated in chambers, is allow some evidence in and then make a final determination as to whether or not I’ll consider it in making the final determination of the case, which would hopefully prevent us from having to retry it if I make the incorrect decision. But nevertheless, there may be some evidence I’ll let in over objection and then make a determination as to whether I’ll consider it in the final determination of the case.

Thereafter, LHA presented evidence in support of its breach of contract claim. In response to Barlow’s first objection to evidence supporting LHA’s breach of contract claim, the trial court initially ruled that it would admit the evidence, but only for the purpose of disputing Barlow’s counterclaims. In response to a second similar objection by Barlow, the court ruled that it would admit evidence of LHA’s breach of contract claim and defer ruling on whether the court would consider this evidence in its final determination of the case. The record shows that the trial court did not exclude evidence from the trial related to LHA’s breach of contract claim, but admitted it and deferred ruling on whether it would consider the evidence in reaching a final judgment in the case. When LHA concluded presentation of its evidence on the second day of trial on November 1, Barlow moved for dismissal of LHA’s breach of contract claim arguing that the court should decline to consider evidence supporting the claim because it was not included in the final pre-trial order controlling the case. The trial court deferred its ruling on the motion until the conclusion of the case. Although LHA attempted to introduce additional evidence in support of its related claim for attorney fees pursuant to OCGA § 13-6-11, the trial court refused to admit that evidence because it found that the attorney fee claim was not included in the final pre-trial order controlling the case.

Shortly after the trial resumed for its third day on the morning of December 20, 2011, the trial court granted a continuance motion made by counsel for LHA based on his representation that for “personal health” reasons, he was unable to continue. On January 23, 2012, new counsel was substituted in the case for LHA, and on February 22, 2012, new counsel filed a motion requesting that the final pre-trial order in the case be amended to include LHA’s breach of contract claim and related attorney fees claim. When the trial recommenced for its fourth and final day on March 7, 2012, the trial court denied LHA’s motion to amend the final pre-trial order, ruling that the motion was untimely and that LHA had twice failed to file its portion of the pre-trial order and failed to move to amend the final pre-trial order prior to trial. In denying the motion, the trial court further ruled that allowing the amendment at that point in the trial would unfairly prejudice Barlow. At the conclusion of the trial, the court granted Barlow’s motion to dismiss, ruled that neither LHA’s breach of contract claim nor any damages related thereto were included in the final pre-trial order controlling the case, and dismissed the claim. The court entered judgment in favor of Barlow on his counterclaims.

The final pre-trial order “controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” OCGA § 9-11-16 (b). “[UJnless the pretrial order is modified at or before trial, a party may not advance theories or offer evidence that violate the terms of the pretrial order.” Ga. Dept. of Human Resources v. Phillips, 268 Ga. 316, 318 (486 SE2d 851) (1997). “The trial court has the power to impose appropriate sanctions to make effective its pretrial orders [, including dismissal of claims for failure to appear at a hearing to consider the pre-trial order,] and appellate courts review the action taken for abuse of discretion.” Robinson v. Williams, 280 Ga. 877, 878 (635 SE2d 120) (2006); Maupin v. Vincent, 245 Ga. App. 635, 635-636 (538 SE2d 529) (2000). In Ambler v. Archer, 230 Ga. 281 (196 SE2d 858) (1973), the Supreme Court considered the appropriate sanctions for failure to obey a court order directing the parties to submit proposed pre-trial orders, or failure of counsel to attend a pre-trial hearing to participate in formulating the final pre-trial order to be entered in the case. Id. at 288-289. Ambler held that, although “[c]ontempt may at times be proper; and in an extreme case the plaintiff’s action may be dismissed or the defendant precluded from introducing evidence relating to his defense ... these remedies are too drastic if less harsh sanctions are appropriate.” Id. at 289 (citation and punctuation omitted). Where less harsh sanctions are appropriate, courts should avoid unnecessarily punishing parties for the supposed negligence of their counsel, and promote disposition of cases on the merits. Id. This is especially true where, as in the present case, allowing the proffered amendment to the pre-trial order would not have surprised or prejudiced the opposing party. Id. at 288. The record shows that the trial court allowed LHA to introduce evidence during the trial supporting its breach of contract claim against Barlow, but deferred ruling on whether the court would later consider the evidence in reaching a judgment. Moreover, as the court recognized, the same evidence the court conditionally admitted on LHA’s breach of contract claim was otherwise admissible on LHA’s defense of Barlow’s counterclaims.

Under the circumstances, we find that the trial court abused its discretion by denying the motion filed by LHA’s new counsel seeking to amend the final pre-trial order to allow LHA to pursue its breach of contract claim and related attorney fees claim, and by sanctioning LHA by dismissing its claim. Ambler, 230 Ga. 281; Wilson v. McNeely, 302 Ga. App. 213, 214 (690 SE2d 512) (2010).

2. We need not address LHA’s remaining claims which related to alleged errors in the vacated judgment.

Judgment reversed in part and vacated, and case remanded.

McFadden, J., concurs. Ray, J., concurs in judgment only.

Decided June 19, 2014 —

Reconsideration denied July 15, 2014.

Mark A. Yurachek, for appellants.

Adam M. Hames, King & Yaklin, Russell D. King, for appellee.


text:
    A13A1020.
    BANKSTON v. LACHMAN.
    (761 SE2d 830)
   Branch, Judge.

The father of a girl, now six years old, brings this appeal from a trial court’s order on a petition by the child’s mother. The trial court suspended the father’s visitation rights and found him in contempt for failing to pay child support. The father argues that the trial court erred when it suspended his visitation rights and also asserts four errors as to a previous order denying his own motion for contempt. The evidence supported the trial court’s suspension of the father’s visitation rights, and we lack jurisdiction as to the previous order. We therefore affirm.

The record shows that the parties’ February 2009 divorce decree granted the father four hours of visitation per week until the child began kindergarten, and every other weekend after that time. As part of the parties’ ongoing dispute over enforcement of the divorce decree’s visitation and child support provisions, one of which resulted in a June 2011 adjudication of contempt against the father for failure to pay child support, the father moved for contempt in July 2012. After a hearing, and in an order dated September 18, 2012, the trial court denied the father’s motions to recuse the judge, for contempt, and to set aside two February 2012 orders on visitation.

Meanwhile, on September 7 and 18,2012, the trial court granted the mother’s emergency ex parte motions and her petition to suspend the father’s visitation pending an investigation of the mother’s allegations that over the weekend of August 24-26, the father’s eight-year-old son by another woman had penetrated the girl’s vagina with his finger several times while both children were in the father’s physical custody. At a hearing on October 11, 2012, the trial court heard testimony from the mother that on returning to the mother’s house, the girl was found cutting off her own hair down to the scalp in an effort to “get [her brother] out of [her] head.” At the same hearing, the father admitted that he had never made a full monthly-child support payment. On October 31, 2012, the trial court granted the mother’s petition to suspend the father’s visitation, found the father in contempt, and ordered the father to begin paying $19,000 in overdue child support. On November 29, 2012, the father appealed the October 31 order. An amended notice of appeal also noted that the father was appealing only the October 31 order.

On appeal, the father argues that the trial court erred in the course of proceedings on the father’s motion for contempt when it denied his motion to recuse the judge, limited the father’s cross-examination of the mother, quashed a subpoena of the child’s doctor, and declined to hold the mother in contempt. The father also argues that the trial court’s suspension of his visitation at the conclusion of proceedings on the mother’s petition was not supported by the evidence. We have jurisdiction over only the last of these assertions.

1. The father’s first four asserted errors concern proceedings in the father’s contempt action against the mother culminating in the order of September 18, 2012, which was not timely appealed. We therefore lack jurisdiction.

The order of September 18, 2012, resolved all issues raised in proceedings in the father’s motion for contempt, including his request to set aside previous orders concerning visitation, and was thus directly appealable. See Edge v. Edge, 290 Ga. 551, 553 (1) (722 SE2d 749) (2012) (an order setting aside “a ruling eliminating [a father’s] right of visitation [was] a ‘custody case’ subject to direct appeal”). As a final disposition on the father’s motion, the order of September 18, 2012 was subject to the timeliness requirements of OCGA § 5-6-38 (a), which provides that a notice of appeal “shall be filed within 30 days after entry of the appealable decision or judgment complained of.” If such an adjudication is not appealed within 30 days, an appeal taken after that time is properly dismissed. In re Booker, 186 Ga. App. 614 (367 SE2d 850) (1988) (dismissing appeal from judgment of contempt as untimely under OCGA § 5-6-38 (a)).

It is true that under OCGA § 5-6-34 (d), a party may appeal a previously unappealed order “rendered in the case... without regard to the appealability of the judgment, ruling or order . . . appealed from.” See In the Interest of I. S., 278 Ga. 859, 860-861 (607 SE2d 546) (2005) (a party taking a timely appeal from an order in a deprivation proceeding could challenge an earlier, unappealed deprivation order by virtue of OCGA § 5-6-34 (d)). Here, however, the “case” as to which the father asserts four errors is his own contempt motion against the mother, which was the subject of the appealable judgment of September 18, 2012, whereas the mother’s petition for contempt and to modify custody, which received a different case number, was the subject of the judgment of October 31, 2012.

As we noted in Carden v. Carden, 266 Ga. App. 149, 150 (1) (596 SE2d 686) (2004), a contempt proceeding is “ancillary” to the action from which it arises. Id. at 150 (1). As a result, we held, a son was barred from filing a counterclaim for contempt in his mother’s contempt proceedings against him, and was required to file his own “separate action” for contempt. Id. at 150 (1), citing Baer v. Baer, 263 Ga. 574, 575 (1) (436 SE2d 6) (1993). Here, the father failed to appeal the final judgment of September 18, 2012, within 30 days of that judgment’s entry. To authorize him to assert errors as to that judgment on this appeal would enable any custody litigant to revive this Court’s jurisdiction over an unappealed contempt judgment in a child custody matter whenever any other appealable judgment issued, even if the second were to appear months or years after the first. Because nothing in OCGA § 5-6-34 (d) authorizes an appellant thus to revisit unappealed final dispositions in contempt proceedings ancillary to child custody cases, this Court has no jurisdiction over the September 18 judgment. OCGA § 5-6-38 (a); In re Booker, 186 Ga. App. at 614 (dismissing appeal of judgment of contempt as untimely). Compare Hammonds v. Parks, 319 Ga. App. 792, 793-794 (2) (735 SE2d 801) (2012) (in father’s timely appeal from final orders on reserved issues of custody, child support, and fees, and also finding father in contempt, appellate court had jurisdiction over earlier, non-final rulings on contempt, custody, and child support under OCGA § 5-6-34 (d)).

2. The father having timely appealed the order of October 31, 2012, this Court has jurisdiction over his assertion that the trial court erred when it suspended his visitation. See Edge, 290 Ga. at 552-553 (1) (trial court’s elimination of visitation rights was directly appeal-able).

When considering a dispute regarding the custody of a child, a trial court has very broad discretion, looking always to the best interest of the child. This Court will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court’s finding, we will not find there was an abuse of discretion.

Decided July 15, 2014.

David A. Webster, Jeanney M. Kutner, for appellant.

Ellis Hoyle King de Clerk, C. Suzette Ellis-Hoyle, for appellee.

Williams v. Williams, 295 Ga. 113 (1) (757 SE2d 859) (2014) (citations and punctuation omitted). “We are [also] mindful that the Solomonic task of making these decisions lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.” Smith v. Curtis, 316 Ga. App. 890, 892 (730 SE2d 604) (2012) (citations and punctuation omitted).

The record at the hearing on the mother’s petition contains reasonable evidence, including the mother’s testimony as to her daughter’s traumatized behavior after being sexually molested by her half-brother, supporting the trial court’s determination that any visitation with the child’s father was not in her best interests pending resolution of the investigation into the half-brother’s behavior. Smith, 316 Ga. App. at 892 (affirming trial court’s judgment revoking a father’s visitation rights when supported by evidence that the father’s harassment of the child’s mother resulted in obsessive-compulsive behavior by the child).

For the reasons stated above, we dismiss the father’s appeal to the extent it asserts errors as to the September 18, 2012 order on the father’s motion, and we affirm the trial court’s order of October 31, 2012, on the mother’s petition.

Judgment affirmed in part and appeal dismissed in part.

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

       In March 2013, we transferred the case to the Supreme Court of Georgia, which returned it to this Court in September 2013.

       As our Supreme Court recently held in Murphy v. Murphy, 295 Ga. 376 (761 SE2d 53) (2014), direct appeals under the former version of OCGA § 5-6-34 (a) (11), still in effect at the time the judgments before us were entered, were ‘limited to ‘order(s) in a child custody case regarding which parent has custody regardless of finality.’ ” Murphy, 295 Ga. at 379 (emphasis in original), quoting Edge v. Edge, 290 Ga. 551, 552 (1) (722 SE2d 749) (2012).


author: Miller, Judge.

text:
    A14A0037.
    In re ESTATE OF LOYD.
    (761 SE2d 833)
   Miller, Judge.

In March 2012, Charles Bentley Childs, Sr., as executor, filed a petition to probate Virginia Childs Loyd’s last will and testament, as well as her codicil to the will. Loyd’s nephew, Jack Childs, filed an untimely caveat, objecting to the petition on the ground of undue influence. Charles moved to dismiss the untimely caveat, and Jack responded with a motion to open default pursuant to OCGA §§ 15-9-47 and 9-11-55 (b). The trial court granted Charles’s motion to dismiss, and Jack appeals, contending that the trial court erred in dismissing his caveat as untimely, failing to grant him an extension to file a caveat and denying his motion to open default. For the reasons that follow, we affirm.

1. Before turning to the merits of Jack’s appeal, we must first examine this Court’s jurisdiction over this appeal.

It is the duty of this Court on its own motion to inquire into its jurisdiction. The Constitution of the State of Georgia of 1983, Article VI, Section VI, Paragraph III (3), confers upon the Supreme Court of Georgia jurisdiction in all cases involving wills. The Supreme Court of Georgia has interpreted this language to mean only those cases where the validity or construction of a will is the main issue on appeal.

(Citations and punctuation omitted.) In re Estate of Farkas, 325 Ga. App. 477, 478 (1) (753 SE2d 137) (2013). Here, the issues on appeal concern the timeliness of the caveat and whether Jack was entitled to open default. Since the issues do not concern the validity or construction of the will or codicil, we have jurisdiction over the appeal. Id.

2. Jack first contends that the trial court erred in dismissing his caveat as untimely. We disagree.

OCGA § 15-9-47 provides for automatic default in pending probate court proceedings if an answer, caveat, or other responsive pleading has not been filed within the time required by law or by lawful order of the court. Nevertheless, at any time before final judgment, the probate court, in its discretion, and upon payment of costs

may allow the default to open for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to open, on terms to be fixed by the court. In order for the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the hearing in the matter.

OCGA § 15-9-47. We will not disturb the probate court’s ruling on a motion to open default, absent an abuse of discretion. See Simmons v. Harms, 287 Ga. 176, 178 (1) (695 SE2d 38) (2010) (probate court has discretion with regard to motions to open default under OCGA § 15-9-47).

So viewed, the record shows that Loyd executed her will in 1996, devising her property in equal shares to her sisters, Doris Richwine and Eugenia Pitts, her brothers, Charles and Mobley Childs, and her nephew, Jack Childs. The will also named Jack as Loyd’s personal representative. In October 2004, Loyd executed a codicil to her will, in which she appointed Charles as her personal representative to administer the will. In the codicil, Loyd also specifically provided that “it is my wish and desire that my nephew, Jack D. Childs, not inherit under any paragraph or provision of my Will.”

Loyd died on December 24, 2011. Thereafter, on March 30, 2012, Charles filed a petition to probate the will and codicil. On April 3, 2012, the probate court entered an order requiring personal service on two of Virginia’s nephews who resided in Georgia — Dr. Samuel Richwine and Joseph Richwine. The order also required service by registered or certified mail on Virginia’s sister Eugenia Pitts, and her nephews, Jack Childs and David Richwine, who all lived out of state. That same day, the probate court also entered an order requiring Jack, David and Eugenia to file any objections to the petition within 13 days or within 10 days from the date of receipt as shown on the certified or registered mail return receipt.

A copy of the petition to probate was sent by certified mail to Jack at his residential address in Carlsbad, California. On April 9, 2012, the copy was delivered to Jack’s residence and was signed for by his wife, Barbara. Thereafter, on April 23, 2012, Jack filed a caveat and objection to the petition to probate, contending that the 2004 codicil was “fraudulently procured through undue influence.”

On January 17, 2013, Charles filed a motion pursuant to OCGA § 53-11-10 to dismiss Jack’s caveat as untimely filed. On February 19, 2013, Jack responded to the motion to dismiss, and filed a separate motion to open default for failing to file a timely caveat.

Jack attached an affidavit to his motion to open default, averring that he was away from his residence on an overseas business trip from April 7 through April 18,2012. Jack further averred that he had no actual notice of the petition to probate until he examined his mail on April 19, 2012, and he filed his caveat as soon as he was able to on April 23, 2012.

The probate court subsequently granted Charles’s motion to dismiss Jack’s caveat, finding that the deadline for Jack to file an objection to the petition to probate was April 19, 2012 (ten days from the April 9 date shown on the certified mail return receipt), and Jack did not move to open default during the 15 days in which he could have opened default as a matter of right. The probate court further found that Jack was aware of the timeliness issue because Charles included language in his responses to Jack’s discovery requests about not waiving the right to raise and challenge the timeliness of the caveat. Finally, the probate court found that Jack failed to explain why he waited more than ten months before filing his motion to open default, and he failed to show excusable neglect, providential cause or a proper case to open default.

Contrary to Jack’s contention, the trial court did not err in dismissing his caveat as untimely.

The nature of the probate court’s discretion regarding the timing of responses to petitions to probate ... is statutory. OCGA § 53-11-5 provides, in relevant part: The probate judge may extend the time to respond with respect to any proceedings covered by this chapter as the judge may determine to be proper in the interests of due process and reasonable opportunity for any party or interest to be heard. OCGA § 53-11-10 (a) further states: Except as otherwise prescribed by law or directed by the judge pursuant to Code Section 53-11-5 with respect to any particular proceeding, the date on or before which any objection is required to be filed shall be not less than ten days after the date the person is personally served.

(Punctuation omitted.) English v. Ricart, 280 Ga. 215, 216 (1) (626 SE2d 475) (2006). Here, in accordance with OCGA § 53-11-10 (a), the probate court’s order required Jack to file his objection to the petition to probate no more than 13 days from the April 3,2012 date of mailing of the notice or within 10 days from the April 9, 2012 date of receipt of notice as shown on the certified mail return receipt.

Jack admits that he was a resident of the State of California when the notice of the probate court’s order was received at his residence by certified mail on April 9,2012. Jack nevertheless argues that the trial court should have allowed him 30 days to file his caveat because he was temporarily out of the country on a business trip.

Although OCGA § 53-11-10 (a) provides for a 30-day objection period for persons who are outside the continental United States, the only reasonable interpretation of that statute is one in which the extended 30-day objection period applies to persons residing outside the continental United States. There is no dispute that Jack was served within the continental United States. Moreover, this Court has previously upheld service on a defendant at his residence by handing a copy to the defendant’s wife, even though the defendant was temporarily working outside the country. See Goldberg v. Painter, 128 Ga. App. 214 (196 SE2d 157) (1973). Jack cites to no authority, and we have found none, providing that his temporary absence from his California residence entitled him to additional time to file his caveat. Accordingly, the trial court did not err in dismissing Jack’s caveat as untimely filed.

3. Jack also contends that the trial court erred in denying his motion to open default. We discern no error.

Pursuant to OCGA § 15-9-47, the probate court had discretion to open default for providential cause or excusable neglect prior to admitting the will and codicil to probate. In reviewing the probate court’s decision on a motion to open default, “we must determine whether all the conditions set forth in OCGA § [15-9-47] have been met and, if so, whether the [probate court] abused its discretion based on the facts peculiar to [this] case.” (Citation and punctuation omitted.) Vibratech, Inc. v. Frost, 291 Ga. App. 133, 144 (2) (661 SE2d 185) (2008).

[T]his Court has recognized a number of factors for determining whether opening default would be appropriate in a particular case, including: whether and how the opposing party will be prejudiced by opening the default; whether the opposing party elected not to raise the default issue until after the time under OCGA § 9-11-55 (a) had expired for the defaulting party to open default as a matter of right; and whether the defaulting party acted promptly to open the default[.] . . . Further, any additional delay occasioned by a failure to file promptly for opening default upon its discovery can be considered in determining whether [the defaulting party’s] neglect was excusable.

(Citation omitted.) Vibratech, supra, 291 Ga. App. at 145 (2).

Here, it is undisputed that Jack did not move to open the automatic default as a matter of right within the 15 days provided under OCGA § 9-11-55. Moreover, the record shows that Jack waited more than ten months, until February 19, 2013, to move to open the default, even though he had notice at least as early as November 2012 that Charles had reserved the right to raise and challenge the timeliness of Jack’s caveat. Finally, as the trial court found in its order denying Jack’s motion to open default, Jack failed to provide a reasonable excuse for the delay in filing his motion to open default, particularly after he had notice that Charles might challenge the timeliness of the caveat. Accordingly, Jack cannot show that the probate court abused its discretion in denying his motion to open default. See Vibratech, supra, 291 Ga. App. at 146 (2).

Decided July 15, 2014.

Robert E. Turner, Mark D. Welsh, for appellant.

Dana C. Ashford, Robert S. Wayne, Witcher & Witcher, William G. Witcher, for appellee.

4. In light of our holding in Divisions 2 and 3 above, we need not address Jack’s additional enumeration of error.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       Jack argues that Charles buried the statement regarding the reservation of his right to raise and challenge the timeliness of the caveat in prefatory language to his discovery responses. Our review of these discovery responses, however, shows that the reservation of rights was clearly and expressly set out on the first page of each responsive pleading.