source: Caselaw Access Project

author: McMlLLIAN, Judge. MILLER, Presiding Judge, McFADDEN, Presiding Judge,

license: Public Domain

text:
    A16A1970.
    WELCKER v. GEORGIA BOARD OF EXAMINERS OF PSYCHOLOGISTS.
    (798 SE2d 368)
   McMlLLIAN, Judge.

In 2014, the Georgia Board of Examiners of Psychologists (the “Board”) denied Joy Welcker’s application for licensure and her subsequent request for a waiver because she graduated from an on-line school that had no physical presence and therefore she did not and could not meet the Board’s requirement that the applicant reside full-time at the school for at least one year. See Ga. Comp. R. & Regs., r. 510-2-.04 (4). Welcker appeals the trial court’s order affirming the Board’s rulings, and we affirm for the reasons set forth below.

Under Georgia law, the Board has “the authority to refuse to grant [or renew] a license” to practice psychology in this State. OCGA § 43-1-19 (a). Refusal to grant a license is authorized, inter alia, where an applicant “[fails] to demonstrate the qualifications or standards for a license ... under the laws, rules, or regulations under which licensure is sought[.]” OCGA § 43-1-19 (a) (1). In seeking a license, the applicant has the burden “to demonstrate to the satisfaction of the board that [she met] all the requirements for the issuance of a license[.]” Id. But “if the board is not satisfied as to the applicant’s qualifications, it may deny a license without a prior hearing; provided, however, that the applicant shall be allowed to appear before the board if he or she so desires[.]” Id.

Here, the Board denied Welcker’s application by letter, without a hearing, on the ground that she failed to meet the residency requirement. The letter informed Welcker that she could request an applicant interview with the Board regarding the denial of her license, and after Welcker did so, an interview was scheduled for July 25, 2014.

In the interim, however, on July 22,2014, Welcker filed a petition for waiver of the residency requirement. The Board has the authority

to grant a . . . waiver to a rule when a person subject to that rule demonstrates that the purpose of the underlying statute upon which the rule is based can be or has been achieved by other specific means which are agreeable to the person seeking the variance or waiver and that strict application of the rule would create a substantial hardship to such person.

(Emphasis supplied.) OCGA § 50-13-9.1 (c). Therefore, Welcker also bore the burden of demonstrating that she was entitled to a waiver. Although the Board is not required to hold a hearing before issuing its denial of a waiver, OCGA § 50-13-9.1 (c) and (e), Welcker was entitled to make an appearance before the Board regarding her waiver request, OCGA § 43-1-19 (j), and the record indicates that the Board’s Executive Director scheduled a date in August 2014 for Welcker “to appear before the Board again.” The Board denied Welcker’s petition for waiver on September 3, 2014.

Welcker filed a timely petition for judicial review of the Board’s rulings. Following a hearing, the trial court held that the denial of her application for a license was not subject to judicial review because it was not a “contested case” within the meaning of the Administrative Procedure Act (the “Act”). However, the trial court found that the Board’s denial of Welcker’s petition for waiver was subject to judicial review, and it affirmed that decision. This appeal followed.

1. Our Supreme Court has explained the procedure to be followed in reviewing an agency’s decision, noting that

judicial review of an administrative decision is a two-step process:.. .the court must first determine if there is evidence to support the factual findings; the court then is statutorily required to examine the soundness of the conclusions of law drawn from the findings of fact supported by any evidence.

(Citation and punctuation omitted.) Handel v. Powell, 284 Ga. 550, 552 (670 SE2d 62) (2008). In conducting this analysis, “[njeither our review nor the trial court’s review of the [agency’s] decision is de novo. They are reviews made with deference to the factual findings of the agency.” (Citation and punctuation omitted.) Excelsior Elec. Membership Corp. v. Ga. Pub. Svc. Comm., 322 Ga. App. 687, 690 (745 SE2d 870) (2013). Additionally, “[w]hen an administrative agency decision is the subject of judicial review, judicial deference is to be afforded the agency’s interpretation ... of rules and regulations it has enacted to fulfill the function given it by the legislative branch.” Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 159 (2) (664 SE2d 223) (2008); The Atlanta Journal & The Atlanta Constitution v. Babush, 257 Ga. 790, 792 (364 SE2d 560) (1988) (“in construing administrative rules, the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the rule”) (citation and punctuation omitted). “However, both the superior court and this court review conclusions of law de novo.” (Citation and punctuation omitted.) Ga. Dept. of Agriculture v. Brown, 270 Ga. App. 646, 649 (2) (607 SE2d 259) (2004).

On appeal, Welcker enumerates error by the trial court in reviewing the Board’s rulings in her case. However, “[w]hen this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency” (Citation and punctuation omitted.) Ga. Professional Standards Comm. v. James, 327 Ga. App. 810, 811 (761 SE2d 366) (2014).

With respect to the decision of the administrative agency, a court may reverse or modify the Board’s decision where substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) [i]n violation of constitutional or statutory provisions; (2) [i]n excess of the statutory authority of the agency; (3) [m]ade upon unlawful procedure; (4) [ajffected by other error of law; (5) [cjlearly erroneous in view of the . . . record; or (6) [ajrbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

OCGA § 50-13-19 (h). See also The Lamar Co. LLC v. Whiteway Neon-Ad, 303 Ga. App. 495, 498 (693 SE2d 848) (2010).

Welcker argues on appeal that the Board’s rulings were arbitrary and capricious, characterized by an abuse of discretion or clearly unwarranted exercise of discretion, and affected by other error of law. OCGA § 50-13-19 (h) (4) and (6). If a party alleges that an agency’s ruling was arbitrary and capricious, the courts “must determine whether a rational basis exists for the final administrative decision made. This is a question of law.” (Citation and punctuation omitted.) Burke County v. Askin, 327 Ga. App. 116, 120 (3) (755 SE2d 602) (2014). Further, under the abuse of discretion standard, “we review... legal holdings de novo, and we uphold . . . factual findings as long as they are not clearly erroneous, which means there is some evidence in the record to support them.” (Citation and punctuation omitted.) Murray v. Murray, 299 Ga. 703, 705 (791 SE2d 816) (2016).

2. Welcker first asserts that the trial court erred in failing to review the denial of her license in addition to the denial of her petition for waiver. We disagree.

The general provisions regarding judicial review of an agency decision state that “[ajny person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.” (Emphasis supplied.) OCGA § 50-13-19 (a). “ ‘Contested case’ means a proceeding, including, but not restricted to, rate making, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.” (Emphasis supplied.) OCGA § 50-13-2 (2). Thus, a contested case arises only when the law mandates that the applicant be provided the opportunity for a hearing.

Neither the Board’s decision to deny Welcker a license nor its denial of her petition for waiver can be considered a contested case. Georgia law allows the denial of a license without a hearing where an applicant fails to show that she has met all the qualifications for that license. OCGA § 43-1-19 (a). Therefore, because no hearing was required by law before the denial of Welcker’s license, the Board’s denial of Welcker’s license application does not present a contested case subject to judicial review.

The Board’s decision to deny a petition for waiver also cannot be considered a contested case. OCGA § 43-1-19 (j) explicitly states that the “refusal to issue a previously denied license” shall not be considered a contested case under the Administrative Procedure Act and “notice and hearing within the meaning of the [Act] shall not be required”; however, the applicant “shall be allowed to appear before the board if he or she so requests.” Nevertheless, such rulings are expressly made subject to judicial review under OCGA § 50-13-9.1 (f), which provides that “[t]he agency’s decision to deny a petition for variance or waiver shall be subject to judicial review in accordance with Code Section 50-13-19.”

Reading the applicable statutes together, therefore, we find that the trial court properly denied judicial review of the denial of Welcker’s license application and correctly limited its review to issues related to the Board’s denial of the request for a waiver. We will likewise confine our review on appeal to the denial of the waiver request.

3. The Board denied Welcker’s petition for waiver on two grounds: (1) her failure to meet the appropriate residency requirements “as per the Board rules in effect in 2007” and (2) her failure to prove a substantial hardship resulting from strict application of the rule.

(a) Residency requirement — Welcker began her graduate studies in psychology through Fielding Graduate University (“Fielding”) in 2007. Fielding is an on-line university accredited through the American Psychological Association (the “APA”). Welcker obtained her M.A. in psychology through Fielding in 2009 and was awarded her doctorate by the university on August 28, 2013.

As of 2004 and at the time Welcker began her graduate work in 2007, the Board’s educational criteria to qualify for licensing included the following residency requirement:

Time Requirements for Training. The Licensure requirements are consistent with the APA Accreditation requirements in that applicants for licensure should be able to demonstrate three full-time academic years of graduate study (or the equivalent) and the completion of an internship prior to the attainment of the doctoral degree. Two of the three academic training years must be fulfilled at the doctoral degree granting institution and one year must be matriculated in full-time residence at that same institution.

(Emphasis supplied.) Former Ga. Comp. R. & Regs., r. 510-2-.04 (4) (2004) (the “2004 rule”). In addition to other changes not pertinent here, the Board amended that provision in 2010 to insert the word “continuous” before the phrase “full-time residence” and to add the following definition of residency:

Residency means continuous physical presence, in person, at the educational institution in a manner that facilitates acculturation in the profession, the full participation and integration of the individual in the educational and training experience, and includes faculty student interaction. Models that use face-to-face contact for shorter durations throughout a year or models that use video teleconferencing or other electronic means to meet the residency requirement are not acceptable.

(Emphasis supplied.) Ga. Comp. R. & Regs., r. 510-2-.04 (4) (a) (2010) (the “2010 amendment”). Therefore, the amendment was implemented between the time Welcker began her graduate work in 2007 and the time she earned her doctorate.

Welcker conceded at the hearing in this matter that Fielding does not provide the opportunity to attend classes in person on a physical campus. Thus, no dispute exists that Welcker could not meet the 2010 residency requirements; however, she contends that her record meets the requirements under the 2004 rule. Welcker asserted in her petition for waiver that she had “accumulated 1,110 face-to-face residency hours with the program’s faculty members” by attending, inter alia, orientation, national sessions, clinical sessions, and cluster meetings with faculty and other students, which she asserted met the purposes of the residency requirement. (Emphasis in original.)

Welcker contends that the Board’s conclusion that these hours did not meet the residency requirement is based on the improper retroactive application of the 2010 amendment. The Board counters, however, that the 2010 amendment did not alter the 2004 rule but instead merely clarified it. They assert that the requirement of one-year’s “full-time residence” at the degree-granting institution always meant continuous, in-person physical residence.

“In construing agency regulations, we employ the basic rules of statutory construction and look to the plain language of the regulation to determine its meaning.” Upper Chattahoochee Riverkeeper, Inc. v. Forsyth County, 318 Ga. App. 499, 502 (1) (734 SE2d 242) (2012). Turning to the language of the 2004 rule, which did not yet contain a statutory definition of “residence,” we note that Merriam-Webster defines the term “full-time” as “working the full number of hours considered normal or standard,” “devoting one’s full attention and energies to something,” and “requiring all of or a large amount of your time.” The term “residence” is defined as “the act or fact of dwelling in a place for some time,” “the act or fact of living or regularly staying at or in some place for the discharge of a duty or the enjoyment of a benefit,” and “a period of active and especially full-time study, research, or teaching at a college or university.” Therefore, the plain meaning of the phrase “full-time residence” reasonably encompasses the concepts of both continuous and in-person physical residence. Because the Board’s construction of the 2004 rule is not plainly erroneous, we must defer to its interpretation. See Babush, 257 Ga. at 792 (2). Accordingly, we find that the 2010 amendment did not change the residency requirement and thus that the evidence of record supports the Board’s conclusion that Welcker failed to comply with the requirement as it existed in 2007.

Nevertheless, Welcker disputes that the Board ever followed this interpretation of the 2004 rule before the 2010 amendment and asserts that the Board granted licenses to Fielding graduates between the passage of that rule and the amendment. Welcker points us to no evidence she introduced on this issue; thus, the record contains no evidence that any Fielding graduates who, like Welcker, began their studies after the institution of the residency requirement in 2004 have been granted a license or a waiver. However, the Board conceded in the trial court that it had granted waivers to one or two Fielding graduates who had begun their studies before the institution of the 2004 rule, in essence grandfathering them into the licensing requirement.

It is well settled that “[a]n individual does not have a constitutional right to practice a health care profession since such a right is subordinate to the state’s right to regulate such a profession.” Brown v. State Bd. of Examiners of Psychologists, 190 Ga. App. 311, 312 (1) (378 SE2d 718) (1989). Thus, this Court has previously held “there is no requirement that the state ‘grandfather’in everyone who does not meet a new rule’s requirements.” Id. at 313 (1). Moreover, Welcker’s situation is different from those applicants who were granted waivers because they began their studies before 2004, when Georgia apparently put into place its residency requirement, because the Fielding program did not qualify for licensure at the time she began her studies.

Accordingly, we find that the Board had a rational basis for its decision in Welcker’s case and did not abuse its discretion in denying her request for a waiver on this ground.

(b) Substantial hardship — Welcker also contends that the Board erred in finding that strict application of the rule would create no substantial hardship on her. She notes that she incurred substantial debt in pursuing her education, she has deep ties in Georgia, and her professional development would be hindered without a license, which she contends is sufficient to entitle her to a waiver.

However, the term “substantial hardship” in this context “means a significant, unique, and demonstrable economic, technological, legal, or other type of hardship to the person requesting a variance or waiver which impairs the ability of the person to contin ue to function in the regulated practice or business.” (Emphasis supplied.) OCGA § 50-13-9.1 (b) (1). The Board asserts that because Welcker has not received a license to practice psychology, she cannot establish that the denial of waiver would impair her ability to continue to function in that profession. Such an interpretation is supported by a plain reading of the verb “to continue,” and we cannot ignore the plain language of the statute. See Mahalo Investments III, LLC v. First Citizens Bank & Trust Co., Inc., 330 Ga. App. 737, 738 (769 SE2d 154) (2015). Therefore, the Board correctly found that Welcker failed to establish that she would suffer substantial hardship from the Board’s refusal to grant her a waiver as that term is defined in the Act. See Brown, 190 Ga. App. at 313 (2) (Since an individual “does not enjoy a constitutional right to practice psychology, it stands to reason that he has no corresponding right to be exempt from complying with the licensing rules.”).

Accordingly, because the Board had a rational basis for its ruling, the decision is supported by the evidence, and it was not affected by an error of law, the trial court properly found that the Board’s decision must be affirmed.

Judgment affirmed.

Dillard, P. J., Branch, Mercier and Bethel, JJ., concur. Ellington, P. J., concurs in judgment only. Miller, P. J., McFadden, P. J., and Reese, J., dissent.

MILLER, Presiding Judge,

dissenting.

As of today, the underserved community of south Georgia will have one less qualified psychologist to provide much-needed mental health services in this part of the state because this Court is affirming the licensing Board’s arbitrary and capricious interpretation of its own rules. Given the Board’s decision to grant waivers to other similarly situated applicants, the decision in Welcker’s case is unsustainable. Therefore, I must respectfully dissent.

The Board’s justification for denying Welcker a waiver rests on its erroneous interpretation of Ga. Comp. R. & Regs., r. 510-2-.04 (2004) (the “2004 Rule”). We are not required to give deference to the Board’s plainly erroneous interpretation. Northeast Ga. Med. Center v. Winder HMA, 303 Ga. App. 50, 56-57 (2) (b) (693 SE2d 110) (2010). The 2004 Rule in effect when Welcker began her studies did not expressly include the in-person physical presence requirement contained in Ga. Comp. R. & Regs., r. 510-2-.04 (4) (2004). See the 2004 Rule.

I would find that Welcker clearly met the residency requirements under the 2004 Rule, and the Board’s admission that it gave waivers to other applicants is fatal to its claim that Welcker is not also entitled to a waiver. The record is devoid of evidence that Welcker’s situation differs from those applicants’ situations except that they entered the program prior to the enactment of the 2004 Rule.

An agency decision is deemed to be “arbitrary” or “capricious” under the Administrative Procedure Act when such a decision “lacks a rational basis.” (Citations omitted.) Professional Standards Comm. v. Adams, 306 Ga. App. 343, 346 (702 SE2d 675) (2010). Here, the Board’s decision lacks any rational basis and does a disservice to the people of south Georgia. Therefore, I would vacate the Board’s decision and remand for further proceedings.

I am authorized to state that Judge Reese joins in this dissent.

McFADDEN, Presiding Judge,

dissenting.

Dr. Welcker has made a prima facie showing of substantial hardship. So I would vacate the superior court’s order and direct the superior court to remand to the agency to determine whether that showing can be rebutted or is outweighed by other considerations. Accordingly, I dissent.

. . . [A]n agency is authorized to grant a variance or waiver to a rule when a person subject to that rule demonstrates that the purpose of the underlying statute upon which the rule is based can be or has been achieved by other specific means which are agreeable to the person seeking the variance or waiver and that strict application of the rule would create a substantial hardship to such person. . . .

OCGA § 50-13-9.1 (c).

In its letter denying the petition for waiver or variance the agency gave the following reasons:

• Failure to prove a significant, unique and demonstrable economic, technological, legal or other type hardship [sic] that strict application of the rule would create a substantial hardship to you.
• There is not an appropriate residency requirement met.as [sic] per Board rules in effect [sic] 2007.

The reasons were set out in the agency’s letter as I set them out here, as a pair of bullet points. Those reasons are ambiguous about whether they are each independently sufficient or sufficient only in combination. So unless we determine that both reasons are sustainable, we must remand.

And the second reason is plainly unsustainable. It begs the question that the petition put before the agency

The first reason presents a closer question because we owe great deference to factfinders. But I would nevertheless vacate and remand.

To begin with, the reason contains another ambiguity. It contains language that Dr. Welcker failed to prove “a substantial hardship” but also that she failed to prove any “other type [of] hardship.” So at a minimum we must remand to ensure that the agency applies the “substantial hardship” standard. But I would find that the undisputed evidence makes a prima facie showing of substantial hardship and remand so that agency can determine whether that showing is overcome by other considerations.

“ ‘Substantial hardship’ means a significant, unique, and demonstrable economic, technological, legal, or other type of hardship to the person requesting a variance or waiver which impairs the ability of the person to continue to function in the regulated practice or business.” OCGA § 50-13-9.1 (b) (1).

Chapter 13 of Title 50 is the Georgia Administrative Procedure Act. That Act “is not intended [to] create or diminish any substantive rights or delegated authority, but... is meant to provide a procedure for administrative determination and regulation where expressly authorized by law or otherwise required by the Constitution or a statute of this state.” OCGA § 50-13-1. So it is written to cover a wide range of contexts. In the definition of “substantial hardship,” the phrase “function in the regulated practice or business” is particularly broad. I cannot think of a more broadly inclusive word than “function.” So Dr. Welcker’s claim of substantial hardship is not rebutted by her ability, for the time being, to continue to practice under supervision. In some contexts, proper functioning entails growth and development. A professional practice is emphatically one such context.

I acknowledge that our almost unlimited deference is suggested by our case law; we have written that “the state may require additional requirements which would prohibit those already licensed from continuing to practice in the regulated field.” Brown v. State Bd. of Examiners of Psychologists, 190 Ga. App. 311, 313 (1) (378 SE2d 718) (1989). But I question the soundness of that language in light of our Supreme Court’s holding — in the context of liquor licenses — that,

[constitutional standards of due process do require that a governing body issuing licenses establish ascertainable standards by which an applicant can intelligently seek to qualify. The question before this court is whether this [rule] in question is drawn with sufficient specificity to apprise an applicant of common intelligence of the standards which he should anticipate the governing body will consider.

Levendis v. Cobb County, 242 Ga. 592, 594 (1) (250 SE2d 460) (1978) (citation and punctuation omitted).

The undisputed evidence shows that Dr. Welcker, although licensed in South Carolina, has deep ties to the underserved south Georgia community in which she practices under supervision, that she has put forth a great deal of effort and incurred a great deal of debt with the goal of practicing psychology in that community. And it establishes that, before beginning her Ph.D. studies, she made an effort to ascertain the standards the agency would consider, which demonstrates her diligence and good faith.

Decided March 16, 2017.

Thompson Hine, Peter D. Coffman, J. A. Schneider, for appellant.

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, Janet B. Wray, Reagan W. Dean, Senior Assistant Attorneys General, for appellee.

Dr. Welcker’s intention to seek licensure and conduct her practice in Georgia was a primary consideration in her decision of which doctoral program to enter. So she undertook to narrow her list of potential schools to those whose doctoral programs would qualify her for licensure in Georgia. She contacted the office of the Secretary of State, which is charged with supervision of professional licensure. She learned that Georgia neither maintains nor adopts any list of accredited institutions. She was left instead to read and construe the applicable regulations. Those regulations, she learned, recited that they are “consistent with” the accreditation requirements of the American Psychological Association; and Fielding is accredited by that association. And so she applied to Fielding.

But she overlooked what has proved to be a crucial difference. While the association’s guidelines call for one year of “full-time residence (or the equivalent thereof),” Georgia’s regulations required a year of “full-time residence.” As the majority notes, that regulation was amended in 2010, as Dr. Welcker was finishing her program, to make more clear Georgia’s departure from the association’s requirements.

I would hold that Dr. Welcker’s unrebutted evidence makes a prima facie showing of substantial hardship. So I would remand for a determination whether that showing can be rebutted or is outweighed by other considerations.

I am authorized to state that Judge Reese joins in this dissent.

       “ ‘Waiver’ means a decision by an agency not to apply all or part of a rule to a person who is subject to the rule.” OCGA § 50-13-9.1 (b) (3).

       Therefore, we find no merit to Welcker’s argument that the Board’s decision must be reversed because it failed to maintain a record of the proceedings, which she asserts was required under OCGA § 50-13-13 (a) (8), because that provision applies only in contested cases.

       The APA accreditation document describes the program as employing the modality of “Distance Education.”

       Therefore, as of the date of Welcker’s application for licensure in June 2013, section (4) of the rule read as follows, with the addition of the language in subsection (a) quoted above:
      Time Requirements for Training. The Licensure requirements are consistent with the APA Accreditation requirements in that applicants for licensure should be able to demonstrate three full-time academic years of graduate study and additionally the completion of an internship prior to the attainment of the doctoral degree. Two of the three academic training years must be fulfilled at the doctoral degree granting institution and one year must be matriculated in continuous full-time residence at that same institution.
      Former Ga. Comp. R. & Regs., r. 510-2-.04 (4) (2010). The rule was amended again on August 30, 2015.

       However, in her original application for a license, Welcker was asked to “indicate the dates [she was] physically, in person, attending classes at the graduate intuition [sic] that-granted [her] doctorate degree," and Welcker represented that she had attended classes in Santa Barbara, California and Atlanta, Georgia from March 2007 to June 2013 (emphasis in original). We note that OCGA § 43-1-19 (a) (2) provides that the Board may refuse a license if an applicant “intentionally made any false statement in obtaining a license to practice the licensed business or profession.”

       https://www.merriam-webster.com/dictionary/full-time.

       https://www.merriam-webster.com/dictionary/residence.

       Welcker argues that language in the first sentence of the rule stating that Georgia’s “Licensure requirements are consistent with the APA Accreditation requirements” somehow indicates that the APA-accredited Fielding program met the Board’s residency requirements. Ga. Comp. R. & Regs., r. 510-2-.04 (4) (a) (2004). However, that the APA licensure requirements are generally consistent does not mean that they are identical to Georgia’s requirements. The 2004 Georgia residency requirement is different on its face from the APA requirements cited by Welcker, as the APA rule requires merely one year of “full-time residence (or the equivalent thereof),” (emphasis supplied) whereas the Georgia rule required “full-time residence” with no reference to equivalent substitutes.

       Welcker argues that the Board should have been required to present evidence to show that she did not comply with the rule, including evidence that it denied admission to Fielding graduates based on the residency requirement between 2004 and the 2010 amendment. However, Welcker clearly bore the burden of proof to support her waiver petition. See OCGA § 50-13-9.1 (c). Moreover, it is questionable whether, without a court order, the Board could have provided the information Welcker cites, as it is restricted by statute from providing applications, personal information submitted by applicants, and the deliberations of the board with respect to an application, except as provided in official board minutes. See OCGA § 43-1-2 (k) (1) and (3).

       Although Welcker asserts that the Board failed to produce any evidence to counter her claim of hardship, as noted above, Welcker, and not the Board, had the burden to establish a substantial hardship within the meaning of the Act.

       “To continue” means “to maintain without interruption a condition, course, or action.” See https://www.merriam-webster.com/dictionary/continue.

       In 2010, the Board specifically defined the term “residency,” and thus we need not look to other sources to define it. Moreover, the dictionary’s general definition of residency is not equivalent to the Board’s specific definition of residency as continuous, physical, in-person presence. Therefore, the dictionary definition does not control our analysis of the meaning of “residency” in the 2004 Rule.


author: REESE, Judge.

text:
    A16A2041.
    HARRIS v. THE STATE.
    (798 SE2d 498)
   REESE, Judge.

A jury found George Harris guilty of six counts of child molestation, and the trial court sentenced him to forty years of imprisonment, to serve thirty. Harris appeals from the denial of his motion for new trial, contesting the admission of similar transaction testimony, the sufficiency of the evidence, and the failure to merge his convictions for sentencing. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that the victims, who were ten and eleven years old at the time of trial, were the granddaughters of a woman who was Harris’s girlfriend at the time of the alleged acts of molestation. The victims, their two brothers, and their mother lived with the victims’ grandmother and Harris. When the younger victim was seven years old, she told her brother that her “tee-tee was burning . . . because of [Harris]The younger victim and her brother told their mother, who took the girls to the hospital for an examination.

At trial, the younger victim testified that Harris had touched her with his hand where she went “number one” more than one time on different days, and that she had seen him touching his “thing” that he used when he went to the bathroom. The older victim testified that, on more than one occasion, she had seen Harris touch her sister with his hand on her front “private part.” Harris had also touched the older victim’s “tee-tee” and “bottom” and had tried to get her to touch his “private part.”

The examining doctor called the police, and, later that morning, a detective conducted videotaped forensic interviews of the girls. The detective testified at trial and identified the videotaped interviews, which were played for the jury. During the interview, the younger victim told the detective that Harris had touched her private area more than once and indicated on a female anatomical drawing where Harris had touched her. She said that Harris touched his penis during these incidents and grabbed the older victim’s hand to try to get her to touch his penis. The older victim initially told the detective that Harris had touched her genitalia but later denied it. Because the younger victim described Harris’s penis, the detective obtained a search warrant to obtain photographs of his penis, which were introduced into evidence at trial.

The examining physician, who was qualified as an expert in emergency room pediatric medicine, testified that the younger victim referred to her genital area as her “tee-tee” and that this was a common term for a vagina at the child’s age. The doctor testified that the younger victim reported that her vagina hurt because Harris had touched her there. She also testified that the older victim told her that she had seen Harris touching her sister’s private part. The older victim denied that Harris had touched her genitalia but said that he had asked her to touch his penis. The doctor testified further that the younger victim had erythema (or redness) on her right labia minora, which was not conclusive evidence of molestation but could have resulted from excessive touching.

The trial court granted a directed verdict on one count of the indictment involving the younger victim, and the jury found Harris not guilty of one count involving the older victim. The jury found Harris guilty of the remaining six counts of child molestation. The trial court denied Harris’s motion for new trial. This appeal followed.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. [] As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

With these guiding principles in mind, we turn now to Harris’s specific claims of error.

1. Harris argues that the trial court erred in admitting similar transaction evidence at trial.

OCGA § 24-4-414 (a) provides that, “[i]n a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused’s commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant.” “[I]n this specific context, showing a disposition toward molestation is a relevant purpose and not unfairly prejudicial in light of the nature of that conduct.” “[A] trial court’s decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion.”

(a) Harris contends that the State failed to provide timely notice of its intent to introduce similar transaction evidence under OCGA § 24-4-414 (b).

In August 2012, the State provided notice of its intent to present evidence of similar transactions, pursuant to the old Evidence Code. On April 25, 2013,11 days before trial started, the State filed a notice under the new Evidence Code, listing the same witnesses. A hearing on the admissibility of the similar transaction evidence was held on April 30, 2013. The trial court overruled Harris’s objection that the notice was not timely, finding that the notice was proper and that, even if the hearing was not timely held, the period for providing notice should be shortened or excused for good cause shown during the hearing.

Harris seems to argue that the State did not provide notice of its intent to present evidence of similar transactions until six days prior to trial, the date of the hearing on the admissibility of the similar acts evidence. Even assuming that Harris did not receive the April 25, 2013 amended notice until the hearing five days later, we find no harmful error. Harris has not demonstrated that the notice provided under the old Evidence Code in August 2012 was insufficient to satisfy OCGA § 24-4-414 (b). Moreover, Harris does not allege error with respect to the trial court’s finding of good cause to shorten the pretrial notice period. We thus find no error.

(b) Harris argues that the trial court erred in allowing his younger sister, C. H., to testify about a similar transaction because it had occurred approximately 44 years earlier.

C. H. testified that she and Harris grew up in the same household. On three occasions when she was approximately thirteen years old, Harris pinned her against furniture or the floor in a ‘Tear hug,” pulled down his pants, and attempted to “put his private into [her]” before she managed to get away

Exclusion of proof of other acts that are too remote in time caters principally to the dual concerns for relevance and reliability. The evaluation of the proffered evidence in light of these concerns must be made on a case-by-case basis to determine whether the significance of the prior acts has become too attenuated and whether the memories of the witnesses has likely become too frail. Neither Rule 403 nor any analogous Rule provides any bright-line rule as to how old is too old.

Although C. H.’s testimony was remote in time, the trial court did not clearly abuse its discretion in allowing C. H.’s testimony, as it was relevant to show Harris’s lustful disposition with respect to preteen or teenaged girls and his pattern of molesting young girls with whom he was living.

(c) Harris also argues that the trial court abused its discretion in allowing S. H. (C. H.’s daughter and Harris’s niece) to testify as a similar transaction witness. He contends that the prejudicial effect of her testimony substantially outweighed any probative value where she alleged only that he had kissed her and did not allege any other inappropriate touching, and had made no outcry until approximately ten years later.

S. H., who was twenty-two years old at the time of trial, testified that, when she was nine years old, Harris had approached her, given her a “long hug,” and kissed her, trying to put his tongue in her mouth. This happened on two or three occasions. We find no clear abuse of discretion in the admission of S. H.’s testimony as it demonstrated Harris’s lustful disposition toward girls of a similar age as the victims and his pattern of initiating sexual contact with young female family members.

(d) Harris contends that the trial court erred in admitting the testimony of J. W. because its prejudicial effect outweighed its probative value, as the alleged incident about which she testified had occurred 16 years earlier, there were no witnesses, and no report was ever made to the police.

J. W., who was 29 years old at the time of trial, testified that she had lived across the street from Harris as a child and had visited his house when her uncle was dating Harris’s sister, C. H. On one occasion when J. W. was 13 years old, she was at Harris’s home when he cornered her in a bedroom, grabbed her, fondled her butt and breast, kissed her on the neck, and touched her private area. J. W. ran out of the house and later told her uncle and C. H. C. H. testified that she confronted Harris after J. W. reported the incident, and he kicked her and her family out of the house.

Harris has failed to show a clear abuse of discretion in the admission of J. W.’s testimony, as it also demonstrates a pattern of molesting young girls of a certain age in his home.

(e) Harris contends that the trial court abused its discretion in allowing the victims’ mother to testify that she had observed him masturbating in his home, arguing that there was no link between the legal act of masturbation and the crimes charged.

The victims’ mother testified that, prior to her younger daughter’s outcry, she had seen Harris masturbating in his bedroom on three separate occasions during the time that she and her children lived in his home. The mother also testified that the door of Harris’s bedroom had been open while he was masturbating and that her whole family was home on all three occasions.

The trial court did not abuse its discretion in admitting this evidence because it was relevant to an issue other than Harris’s character and its probative value was not substantially outweighed by the danger of unfair prejudice. Specifically, the evidence was relevant to show a pattern of conduct because the victims reported that Harris had exposed himself to them on other occasions while his bedroom door was open, even though there were other people in the house.

2. Harris argues that he was denied a fair trial based on the outburst of a prosecution witness.

The week before trial started, the court heard testimony from two prospective similar transaction witnesses: Harris’s sister, C. H., and C. H.’s daughter, S. H. After the prosecutor asked her about her children, C. H. testified that her 34-year-old son had died unexpectedly of a heart attack the day before. The man had broken his back the year before and had been paralyzed from the chest down.

At a hearing on the first day of trial, before the jury was selected, defense counsel reminded the court that a family member of a witness had died unexpectedly and requested that it not be mentioned at trial as it was irrelevant and prejudicial. The court instructed the State to tell its witnesses not to mention the man’s passing.

During cross-examination on the second day of trial, the following exchange took place between defense counsel and C. H.:

Q: In 1994, how many children did you have?
A: Let’s see. ... I had six. I had six children. . . .
Q: [A]t the time you went to live in [Harris’s] house, give me the names and ages of your children.
A: Are you kidding?
Q: No — no kidding allowed.
A: Wait a minute, let’s see. Oh — look, I can’t think like that right now. I mean, come on.
Q: I’ll tell you what. I’ll tell you what — give me the names.
A: Okay. [First child’s name]
Q: How old is [the first child] now?
A: [He] . . . just turned twenty-four ....
Q: He’s twenty-four now?
A: Yes.
Q: So in 1994, he would have been how old?
A: I don’t know. You do the math. I just — I just told you.
Q: Five years old?
A: Sir, I just buried my son. Don’t do this to me, please. I just buried my son, okay? Saturday — you already know that. Don’t stress me out no more —
[DEFENSE ATTORNEY:] Can we approach?
THE WITNESS: I can only tell you what happened to me — what he did to me —
[DEFENSE ATTORNEY:] Can we approach?
THE WITNESS: — except for what I told y’all he did. I’m not lying. He needs to confess. (Sobbing)

The court excused the jury from the courtroom, and defense counsel requested a mistrial. The trial court denied the motion, as well as defense counsel’s motion to strike the witness’s testimony in its entirety The trial court reminded C. H. that she had been warned not to talk about the recent passing of her son. The jurors returned, and the trial court instructed them as follows: “Ladies and gentlemen, I earlier instructed you that certain testimony was being offered for a limited purpose, and you are reminded of that instruction. And you are to disregard the witness’s testimony which preceded me sending you out.” Defense counsel continued with his cross-examination, and C. H. answered the questions without further outburst.

(a) Harris argues that the trial court abused its discretion in denying his motion for mistrial after C. H.’s outburst.

“When determining whether the trial court abused its discretion [in denying a mistrial], we consider the statement itself, other evidence against the accused, and the actions of the trial court and counsel dealing with the impropriety.”

As an initial matter, Harris waived this objection by failing to renew his motion for mistrial after the trial court admonished C. H. outside the presence of the jury and instructed the jury to disregard the outburst. Where the court gives a curative instruction and the defendant neither objects to the curative instruction nor renews his motion for mistrial, the issue is not preserved for appellate review.

Even if Harris had preserved the issue, however, we find no abuse of discretion. Any error was self-induced, as it came during cross-examination in response to defense counsel’s questions about her children, and not during the State’s case-in-chief. “Self-induced error cannot be complained of on appeal.” Furthermore, the trial court cautioned the witness and instructed the jury to disregard the testimony, and there was strong evidence of Harris’s guilt. Consequently, this argument lacks merit.

(b) Harris also contends that the trial court should have stricken C. H.’s entire testimony because she refused to answer defense counsel’s questions, arguing that her outburst demonstrated that she had an “agenda” against him. Harris argues that he was denied the right to a “thorough and sifting cross-examination” guaranteed by the Sixth Amendment and OCGA § 24-6-611 (b).

As discussed in Division 2 (a), supra, the trial court had discretion whether to grant a mistrial or give a curative instruction after the outburst. Pretermitting whether Harris preserved his motion to strike C. H.’s entire testimony, the transcript shows that defense counsel continued his cross-examination after the jury returned to the courtroom and that C. H. answered his questions. We find no violation of Harris’s constitutional or statutory right of confrontation.

3. Harris argues that the trial court committed plain error by allowing the victims’ 15-year-old brother to testify about the outcry made by the younger victim because the State failed to provide the notice requiredby the current Child Hearsay Statute, OCGA § 24-8-820.

As an initial matter, we note that OCGA § 24-8-820 does not apply in this case because Harris committed his crimes between February 1, 2010, and January 31, 2011, prior to the effective date of the statute. Prior to the enactment of OCGA § 24-8-820, however, the Supreme Court of Georgia interpreted the prior version of the Child Hearsay Statute, former OCGA § 24-3-16, “to require the prosecution to notify the defendant within a reasonable period of time prior to trial of its intent to use a child victim’s hearsay statements and to give the defendant an opportunity to raise a Confrontation Clause objection.” “[T]he right of confrontation may, of course, be waived, including by failure to object to the offending evidence^]” Harris does not dispute that he did not raise an objection in the trial court, nor does he challenge the reliability of the statement or raise the issue of confrontation. He argues, however, that the court committed plain error in allowing the brother’s testimony when the State had not provided the required notice. We disagree.

To show plain error, [Harris] must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.

Harris has not disputed the State’s assertion that, in June 2012, it provided discovery to his counsel, including a witness list with the brother’s name and police reports that referenced the victim’s outcry We conclude that the State substantially complied with the notice requirement of the Child Hearsay Statute, and that Harris has not demonstrated how his defense was harmed by the State’s failure to provide a more complete notice. Thus, there was no error.

4. Harris contends that the trial court erred in allowing the detective, over objection, to bolster the testimony of the older victim.

The detective testified that the older victim initially reported that Harris had touched her, but she later recanted. After being qualified as an expert in the field of forensic interviewing of children, the detective testified that it was not unusual to find out that a child had been abused, even though she had denied it.

The detective did not directly address the victim’s credibility or express an opinion as to whether the child had actually been sexually abused. As such, the detective’s testimony did not improperly bolster the credibility of the victim or address the ultimate issue before the jury. Consequently, this presents no reversible error.

5. Harris argues that the trial court committed reversible error by failing to conduct a Jackson-Denno hearing to determine the voluntariness of his statement to police.

At the beginning of the trial, defense counsel acknowledged that he was not contesting the voluntariness of Harris’s statement to police because he wanted the jury to hear that Harris denied committing the crimes at issue. A detective testified that, during his investigation, he conducted a videotaped three-hour interview of Harris, who denied he touched the victims. The detective testified that he had informed Harris of his Miranda rights and that Harris had agreed to speak to him voluntarily. The prosecutor noted in the jury’s presence: “Judge, ... I believe the defense is not raising any issues regarding voluntariness or Miranda, so I’m not going to go any further with that.” Defense counsel did not object to the detective’s testimony about the interview. Then, during cross-examination, defense counsel questioned the detective about Harris’s interview.

Because Harris failed to pursue his initial request for a Jackson-Denno hearing, made as part of his 13-page consolidated motions packet; affirmatively stated that he was not challenging voluntariness and admissibility of the statement; and failed to object when the prosecutor asked the detective if Harris had spoken to him voluntarily after being advised of his Miranda rights or during the extensive subsequent questioning about the interview, he has waived this argument.

In the alternative, Harris contends that his attorney’s failure to request a Jackson-Denno hearing constituted ineffective assistance of counsel. Because Harris failed to raise this allegation in his motion for new trial, as amended by appellate counsel, it is waived. After arguing at the motion for new trial hearing that a Jackson-Denno hearing should have been held, counsel stated, “And I’ll also add to that that it was ineffective for the defense counsel to fail to request a [Jackson-Denno] hearing.” This statement, without more, did not give the trial court an opportunity to rule on this ground.

6. Harris contends that the evidence was insufficient to support his convictions based on the inconsistent testimony, the long period of time since some of the similar transactions occurred, the lack of any legal action taken on any of the similar transactions, the lack of DNA evidence as to the victims in this case, and in light of the character witnesses presented by the defense.

“[W]e do not reweigh the evidence or judge the credibility of witnesses, a job that rests squarely with the jury.” The testimony of the victims, which was corroborated by their brother and mother, the examining emergency room doctor, and the detective who interviewed them, was sufficient to authorize the jury to find that Harris had committed the acts claimed by them and to infer that he acted with the intent to arouse or satisfy his sexual desires.

7. Harris argues that the trial court erred in giving, over objection, two jury instructions requested by the State, which Harris contends were unclear, confusing, and not pattern instructions.

The first charge at issue instructed the jury:

A defendant need not have intended to actually use the child’s body in some physical capacity in order to commit an act of molestation. It is sufficient if a person utilizes or capitalizes on a child’s mere presence as a witness to the person’s intentional immoral or indecent act, provided that the act is accomplished with the intent to arouse or satisfy the sexual desires of the person.

The second complained-of charge instructed the jury: “In the case of a child, consent is irrelevant. Issues of a child’s alleged consent, or a defendant’s use of physical or emotional force, or lack thereof, are not to be considered by the jury, because a child under the age of sixteen years cannot legally consent to sexual acts.”

Because Harris has not cited any authority to support this claim of error, this argument could be deemed abandoned. However, even if we reach this claim, Harris’s argument lacks merit. Although the charges are not Pattern Jury Instructions, they were accurate statements of the law and were not confusing or misleading. We find no error.

8. Harris also complains that the trial court erred by not merging certain counts for sentencing and in imposing a cruel and unusual sentence.

The trial court sentenced Harris to twenty years’ imprisonment on Count 1; twenty years’ imprisonment on Count 3 (concurrent with Count 1); twenty years to serve ten on Count 5 (consecutive to Count 1); and twenty years to serve ten on each of Counts 6-8 (each concurrent with Count 1), for a total of forty years, to serve thirty, with the remainder on probation.

Decided March 16, 2017.

James M. Miller, for appellant.

D. Victor Reynolds, District Attorney, Michael S. Carlson, Assistant District Attorney, for appellee.

(a) Harris complains that he received a sentence after trial significantly greater than what the State had offered before trial in exchange for his guilty plea (fifteen years to serve five) and that his sentence (forty years to serve thirty) thus constitutes cruel and unusual punishment.

This argument is without merit. “[I]t is not error for a trial judge to impose a greater sentence upon a defendant after he has heard the evidence at trial than he might have imposed in conjunction with a guilty plea.”

(b) Harris also contends that the trial court erred by not merging certain counts for sentencing. Because Harris has not cited any authority to support this claim of error, this argument is deemed abandoned pursuant to Court of Appeals Rule 25 (c) (2).

Judgment affirmed.

Miller, P. J., and Dillard, P. J., concur.

       OCGA§ 16-6-4 (a)(1).

        Manuel v. State, 289 Ga. 383, 384 (1) (711 SE2d 676) (2011).

       Harris had married the victims’ grandmother by the time of trial.

       The appellate court record transmitted from the trial court contained photocopies of the DVDs of the interviews with the victims; the DVDs were not included in the record. We note that Court of Appeals Rule 18 provides in part:
      (b) Recordings.
      When the notice of appeal directs that transcripts of a trial or a hearing be included in the record, copies of all video or audio recordings that were introduced into evidence shall be transmitted to this Court along with the trial or hearing transcript. It shall be the responsibility of the party tendering the recordings at a trial or a hearing to ensure that a copy of the recording is included in the trial court record; however, it is the burden of the appealing party to ensure that a complete record is transmitted to this Court on appeal, including the transmission of video or audio recordings. If a transcript of a trial or a hearing is designated as part of the appellate record, the clerk of the trial court shall then include the copy of the recording in the appellate record transmitted to this Court. If a copy of a recording played at a trial or a hearing is not included with the transcript designated to be transmitted in the appellate record, this Court may take whatever action is necessary in order to ensure completion of the record, including, but not limited to, issuing a show-cause order requiring an explanation of its absence. The appellant’s failure to complete the record may also result in this Court declining to consider enumerations of error related to the missing evidence.
      (c) Proprietary Software.
      Copies of any video or audio recordings of evidence shall be submitted to this Court on DVD or on video or audio compact disc, and shall include any proprietary software necessary to play the recordings.
      Although this Court ultimately obtained copies of the DVDs from the trial court, we reiterate that the burden remains on the appellant to perfect the record on appeal. Because this is a recurring problem, we also remind the trial court clerks that they should not send us photocopies of a DVD but should instead remit an actual reviewable DVD.

       443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

        Watkins v. State, 336 Ga. App. 145, 146 (1) (784 SE2d 11) (2016) (citation and punctuation omitted).

        Eubanks v. State, 332 Ga. App. 568, 571 (2) (774 SE2d 146) (2015). See also Arbegast v. State, 332 Ga. App. 414, 417 (2) (a), n. 1 (773 SE2d 283) (2015) (“ [I] n general, the new Evidence Code eliminates bent of mind and course of conduct as permissible purposes for the admission of similar transaction evidence. But in criminal proceedings in which the defendant is accused of a sexual assault or child molestation, the new Code includes provisions for the admission of certain prior sexual assaults or child-molestation offenses for bearing on any matters to which they are relevant.”) (citations and punctuation omitted).

        Silvey v. State, 335 Ga. App. 383, 386 (1) (780 SE2d 708) (2015) (citation and punctuation omitted).

       OCGA § 24-4-414 (b) provides:
      In a proceeding in which the state intends to offer evidence under this Code section, the prosecuting attorney shall disclose the evidence to the accused, including statements of witnesses or a summary of the substance of any testimony that the prosecuting attorney expects to offer, at least ten days in advance of trial, unless the time is shortened or lengthened or pretrial notice is excused by the judge upon good cause shown.

       See Ga. L. 2011, pp. 99, 100, 214, §§ 1, 101 (adopting the new Code, effective January 1, 2013).

        United States v. Larson, 112 F3d 600, 605 (II) (A) (2nd Cir. 1997); accord United States v. Meacham, 115 F3d 1488, 1492 (I) (B) (a) (10th Cir. 1997) (“No time limit is imposed on the uncharged offenses for which evidence may be admitted; as a practical matter, evidence of other sex offenses by the defendant is often probative and properly admitted, notwithstanding very substantial lapses of time in relation to the charged offense or offenses.”). “Our new Evidence Code was based in large part on the Federal Rules of Evidence. And where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance.” Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015) (citation omitted). See also Eubanks, 332 Ga. App. at 571 (2), n. 10 (“The new Georgia evidence rule governing the admission of other crimes in child molestation cases, OCGA § 24-4-414 (a), tracks Federal Rule of Evidence 414 (a).”) (citation and punctuation omitted); Williams v. State, 328 Ga. App. 876, 879 (1) (763 SE2d 261) (2014) (OCGA § 24-4-403 tracks Federal Rule of Evidence 403); United States v. McGarity, 669 F3d 1218, 1244 (V) (B), n. 32 (11th Cir. 2012) (evidence admitted under Rule 414 (a) must also satisfy Rule 403).

       See United States v. Bentley, 561 F3d 803, 815 (IV) (8th Cir. 2009) (trial court did not abuse its discretion in admitting testimony that tended to show defendant’s propensity to molest young girls who were family members or who lived in his home).

       See United States v. Benally, 500 F3d 1085, 1092-1093 (III) (10th Cir. 2007) (no abuse of discretion in admitting evidence of prior incidents which, like the charged offense, involved young women whom the defendant previously knew, two of whom were close relatives).

       See United States v. LeMay, 260 F3d 1018, 1028 (C) (9th Cir. 2001) (prior acts of child molestation were highly relevant where each incident involved forced oral copulation with young relatives whom the defendant was babysitting).

       See OCGA § 24-4-401 (“ ‘[R]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”); OCGA § 24-4-403 (“Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .”); OCGA § 24-4-404 (b) (“Evidence 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. . . .”). See generally Olds v. State, 299 Ga. 65, 69-70 (2) (786 SE2d 633) (2016).

        Jackson v. State, 302 Ga. App. 412, 414 (1) (691 SE2d 553) (2010) (citations and punctuation omitted).

       See Hartsfield v. State, 294 Ga. 883, 886 (2) (757 SE2d 90) (2014).

        See McCoy v. State, 273 Ga. 568, 572 (8) (544 SE2d 709) (2001).

        Phyfer v. State, 259 Ga. App. 356, 361 (5) (b) (577 SE2d 56) (2003) (citation and punctuation omitted).

       See Lowe v. State, 287 Ga. 314, 316 (2) (a) (695 SE2d 623) (2010) (“[T]he Court must presume that the jury followed the trial court’s instruction and disregarded the witness’ statement.”) (citation and punctuation omitted).

       See Jackson, 302 Ga. App. at 414 (1).

       OCGA § 24-6-611 (b) provides: “A witness may be cross-examined on any matter relevant to any issue in the proceeding. The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against the party. . . .”

       See Jackson, 302 Ga. App. at 414 (1).

       See Soto v. State, 285 Ga. 367, 368-369 (2) (677 SE2d 95) (2009) (“Generally, when a witness refuses to continue to testify after having already done so, the proper remedy is to strike pertinent portions of the witness’ testimony. . . . When a witness declines to answer on cross)-] examination certain pertinent questions relevant to a matter testified about by the witness on direct examination, all of the witness’ testimony on the same subject matter should be stricken.”) (citation and punctuation omitted; emphasis in original).

       See Ga. L. 2013, pp. 222, 243, § 21 (“Any offense occurring before July 1, 2013, shall be governed by the [Child Hearsay Statute] in effect at the time of such offense [.] ”); Laster v. State, 340 Ga. App. 96, 99 (1), n. 2 (796 SE2d 484) (2017) (“With the adoption of the new Evidence Code, effective January 1, 2013, OCGA § 24-3-16 was repealed and replaced with OCGA § 24-8-820, a nearly identical version of that statute. See Ga. L. 2011, pp. 99, 100, § 2. Six months later, OCGA § 24-8-820 was substantially revised. See Ga. L. 2013, pp. 222, 237, § 13 (effective July 1, 2013).”).

        Hatley v. State, 290 Ga. 480, 483-484 (I) (722 SE2d 67) (2012).

       Id. at 483 (I) (citation and punctuation omitted).

        Mosley v. State, 298 Ga. 849, 851 (2) (a) (785 SE2d 297) (2016) (citations and punctuation omitted).

        See Long v. State, 324 Ga. App. 882, 891 (2) (a) (i) (752 SE2d54) (2013) (regarding notice of State’s intent to introduce evidence of a similar crime or transaction).

        See Pearce v. State, 300 Ga. App. 777, 785 (6) (686 SE2d 392) (2009).

       See Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       See Richardson v. State, 265 Ga. App. 880, 883 (2) (595 SE2d 678) (2004).

        See Deleon-Alvarez v. State, 324 Ga. App. 694, 707-708 (7) (751 SE2d 497) (2013).

       See Welch v. State, 307 Ga. App. 857, 859-860 (2) (705 SE2d 916) (2011).

        Hammontree v. State, 283 Ga. App. 736, 737 (1) (642 SE2d 412) (2007) (citations omitted).

       See OCGA § 16-6-4 (a) (1) (“A person commits the offense of child molestation when such person) d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person).]”); Malone v. State, 277 Ga. App. 694, 696 (1) (627 SE2d 378) (2006) (“The testimony of the child molestation victim alone was sufficient to authorize the jury to find that [the defendant] committed the acts claimed by her and to infer that he acted with the intent to arouse or satisfy his and her sexual desires.”) (citations omitted).

       See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error that is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

       See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2007), §§ 2.30.12 (Rape; Victim 10 Years of Age or Older but Under the Age of 16), 2.34.10 (Child Molestation; After 7/1/95).

        See Forbes v. State, 284 Ga. App. 520, 523 (2) (644 SE2d 345) (2007) (considering the well established body of law that an underage victim cannot consent to intercourse, the trial court did not err in instructing the jury that a victim younger than 16 was legally incapable of consenting to intercourse); Grimsley v. State, 233 Ga. App. 781, 784-785 (1) (505 SE2d 522) (1998) (evidence was sufficient to support child molestation conviction where the defendant intentionally engaged in sexual activity with his wife in front of their underage children).

        See Johnson v. State, 198 Ga. App. 520, 522 (7) (402 SE2d 115) (1991).

        Hawes v. State, 298 Ga. App. 461-462 (1) (680 SE2d 513) (2009) (citations omitted).

        See Patterson v. State, 327 Ga. App. 695, 698 (3) (761 SE2d 101) (2014).


author: Branch, Judge. ELLINGTON, Presiding Judge,

text:
    A16A2175.
    GEORGIA DEPARTMENT OF ADMINISTRATIVE SERVICES v. McCOY.
    (798 SE2d 687)
   Branch, Judge.

This insurance coverage action concerns whether the Department of Administrative Services (“DOAS”), as the administrator of the State Employee Liability Trust Fund, is liable under its General Liability Agreement (the “GLA”) for actions taken by a covered person outside the scope of employment. Because the trial court erred in concluding that the GLA was ambiguous with regard to such coverage, we reverse the trial court’s decision to deny DOAS’s motion for summary judgment and to enter judgment in favor of McCoy.

The facts necessary to the current appeal are not in dispute; more detailed facts are set forth in an earlier appeal in the same action. See McCoy v. Ga. Dept. of Admin. Svcs., 326 Ga. App. 853 (755 SE2d 362) (2014). In the underlying suit, McCoy alleged that in retaliation for questioning the defendants’ illegal scheme to misuse their employment at the Rabun County office of the Division of Family and Children Services (“DFCS”) for personal financial gain, McCoy, who was also a DFCS employee, was arrested and later fired based on falsified evidence and fabricated charges that she committed reckless conduct in the handling of her own cases. Id. In response, McCoy filed suit against two DFCS employees, including Nicole Allen, as well as other defendants, asserting three claims: (1) violation of Georgia’s Racketeer Influenced and Corrupt Organizations (“RICO”) Act — based on predicate acts of forgery, perjury, computer forgery, theft by deception, and tampering with evidence; (2) malicious prosecution; and (3) intentional infliction of emotional distress. McCoy also sought punitive damages. McCoy did not provide ante litem notice to the State or name the State or DFCS as a party defendant.

After filing suit, McCoy sent a letter and a copy of the complaint to DOAS giving notice that a suit had been filed against two individuals who had been employed by DFCS for acts that occurred “during the time they were employed by [DFCS],” and requesting information about insurance coverage that “could conceivably apply.” On April 7, 2009, following a default judgment against several defendants, including Allen, a jury awarded McCoy $1,243,113.45, trebled under the RICO statutes for a total of $3,729,340.35 in actual damages; $100,000 in attorney fees; and $32,000,000 in punitive damages. The superior court entered judgment in those amounts but only on the claims of malicious prosecution and RICO.

McCoy then sent a letter to DOAS requesting the policy limits under the GLA on the ground that DOAS breached its contractual duties to defend and to contribute to the judgment against Allen who, as a DFCS employee, was a covered person under the GLA. McCoy, 326 Ga. App. at 854. DOAS refused, and McCoy, with new counsel, filed the present coverage action against DOAS, asserting that DOAS breached its contractual duties to defend and to contribute to the judgment against covered parties under the GLA. McCoy asserted in the coverage complaint that she had brought the underlying action against the defendant DFCS employees based on torts they committed while acting “during and in the course and scope of their employment” at DFCS.

Early in the coverage litigation, the trial court dismissed McCoy’s suit on the ground that a suit against DOAS was barred by sovereign immunity, and McCoy appealed. McCoy, 326 Ga. App. at 853. On appeal, this Court concluded that although McCoy was not a party or a third-party beneficiary to the GLA, she had standing to enforce the GLA as a judgment creditor of Allen, a covered party, and that McCoy therefore “stands in the shoes” of Allen, the insured, with regard to coverage. Id. at 856-858 (citation and punctuation omitted). Accordingly, this Court reversed the dismissal but made clear that it was not deciding any issues of coverage under the GLA for the underlying claims. Id. at 858. This Court did note, however, that McCoy brought the underlying claims against the DFCS employees “for acts committed in the course and scope of their employment.” Id. at 853. McCoy did not move for reconsideration of this finding or appeal to the Supreme Court.

On remand, DOAS moved for summary judgment on the ground that the GLA did not cover the claims against Allen because either Allen was acting within the scope of her employment and therefore was immune from liability or Allen was acting outside the scope of her employment and therefore the GLA provided no coverage. In her response, McCoy argued that the underlying suit was not brought against the State under the Georgia Tort Claims Act (“GTCA”); rather she brought her claims against Allen in her individual capacity for torts committed outside the course and scope of employment.

The trial court denied DOAS’s motion and, finding no remaining issues of fact, entered judgment in favor of McCoy, thereby awarding her the policy limits under the GLA. The court began by finding that the underlying case “was filed against the employees in their individual capacity, as no ante litem notice was sent[] and no allegation was made that the employees committed the acts complained of in the course and scope of their employment.” The court did find, however, that DOAS received sufficient notice of the underlying suit for the purpose of insurance coverage.

The court then held that the GLA was ambiguous regarding whether it provided coverage for McCoy’s claim of malicious prosecution, that the ambiguity must be construed in favor of McCoy, and that therefore the GLA covered the claims McCoy made against Allen as a matter of law even though the GLA provides that it does not cover occurrences outside the scope of employment. On the RICO claim, the court held that given that McCoy filed the underlying suit against the DFCS defendants individually, questions of sovereign immunity and official immunity were moot; in other words, the court apparently held that DOAS was liable for the RICO award against Allen up to the policy limits. Finally, the court awarded post-judgment interest to McCoy from the date of the default judgment in the underlying action. The court then entered judgment against DOAS for the applicable policy limits of $1 million plus post-judgment interest. DOAS appeals these rulings. McCoy has not cross-appealed any aspect of the ruling.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

DOAS contends the trial court erred in finding that the GLA is ambiguous. DOAS argues that the GLA unambiguously provides that there is no coverage for acts outside the scope of employment and that the GLA therefore provides no coverage for any of McCoy’s claims against Allen in the underlying suit. We agree.

(a) The legal background to the issue raised in this action concerns the sovereign immunity of the State and the official immunity of state officials and employees as set forth in the Constitution of the State of Georgia, together with the modification of those immunities under the GTCA. The Georgia Constitution extends sovereign immunity to the State and all of its departments and agencies, but, except as specifically provided in the GTCA, it allows suits against state officers and employees for negligent performance of their ministerial functions and for actions taken with malice or actual intent to injure in the performance of their official functions; otherwise, state officers and employees have immunity under the Georgia Constitution for the performance or nonperformance of their official functions. Ga. Const. Art. I, Sec. II, Par. IX (d). The Georgia Constitution also provides that the legislature may waive elements of the State’s sovereign immunity by way of the GTCA and provides procedures for claims against “the state and its departments, agencies, officers, and employees.” Id. (a), (e).

With the passage of the GTCA, the State waived some of its immunity but expanded state officer and employee immunity Under that Act and subject to certain exceptions and limitations, the State waived its sovereign immunity “for the torts of state officers and employees while acting within the scope of their official duties.” OCGA § 50-21-23 (a). Thus, subject to the statutory exceptions, the State has opened itself up to liability for the acts of its officers and employees acting within the scope of their employment even if the officer or employee may have personal immunity from suit under the Constitution. See Riddle v. Ashe, 269 Ga. 65, 66 (2) (495 SE2d 287) (1998) (“While a state actor is immune from suit if acting within the scope of his or her official duties, the GTCA does allow recourse against the state for the same conduct, if certain conditions have been satisfied.”) (citations omitted). Finally, to assert a claim against a state government entity under the GTCA, the plaintiff must provide ante litem notice to the State. See OCGA § 50-21-26.

But under the same circumstances, i.e., for the torts of state officers and employees while acting within the scope of their official duties, the GTCA provides that suits against the state officers and employees are not allowed. OCGA §§ 50-21-23 (a), 50-21-25 (a) (“A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.”); see also Howard v. Miller, 222 Ga. App. 868, 871-872 (1) (c) (476 SE2d 636) (1996) (GTCA“provides individual immunity for state employees . . . arising from the performance or nonperformance of their official duties or functions”) (punctuation and emphasis omitted). As held by the Supreme Court, under the GTCA, state officers and employees are exempt from liability “for any torts committed while acting within the scope of their official duties or employment” “without any exception for malicious acts.” Ridley v. Johns, 274 Ga. 241, 242 (552 SE2d 853) (2001). Thus the GTCA extended immunity for state officers and employees to all actions taken within the scope of their official duties or employment. See id. The GTCA also makes clear, however, that the State has no liability for, and has established no immunity for, state officers or employees engaged in conduct “not within the scope of their official duties or employment.” OCGA §§ 50-21-23 (a), 50-21-25 (a).

Finally, the GTCA provides that it is “the exclusive remedy for any tort committed by a state officer or employee” within the scope of his or her official duties or employment. OCGA § 50-21-25 (a); see also OCGA § 50-21-23 (a).

(b) Against this backdrop, we first hold that the only possible aspect of the default judgment that McCoy obtained against Allen in the underlying matter that is relevant to this coverage case is the degree to which the underlying suit alleged torts that Allen committed outside the scope of her employment. As the trial court suggested in its final order, and as McCoy admitted at oral argument below and in her brief on appeal, the underlying case can only be seen as having been filed against the employees in their individual capacity, as no ante litem notice was sent to the State as required by the GTCA. Howard, 222 Ga. App. at 871 (1) (b) (plaintiff cannot file suit against State under GTCA where plaintiff failed to send ante litem notice). Thus the default judgment did not establish any liability for the State or Allen for any of Allen’s actions taken within the scope of her official duties or employment. Rather, the default judgment could have established liability only for Allen’s actions made outside the scope of her employment.

(c) Next, with regard to liability coverage for the acts of state officials or employees made outside the scope of employment, the GLA is not ambiguous: it clearly does not provide such coverage. The “Coverage Agreement” of the GLA provides that the GLA applies “only if the ‘occurrence’ is committed or allegedly committed ... by a Covered Party while acting in the course and scope of their duties with a participating ‘department’ that has purchased coverage. . . Similarly, the GLA excludes “[cjlaims relating to an ‘occurrence’ committed or allegedly committed by a Covered Party while outside the course and scope of their duties.” These are the only two times the term “scope of employment” is mentioned in the GLA, and the meaning is completely clear: regardless of the type of claim that might otherwise be covered in the GLA, no coverage is offered for claims arising outside the scope of employment.

(d) McCoy argues that the following sentence in the GLA “Coverage Agreement” creates an ambiguity in the meaning of the GLA:

This Agreement will respond to any covered allegation in order to defend and pay “damages” on behalf of a Covered Party when a claim or “lawsuit” is filed and is not covered by the [GTCA],

We disagree. First, McCoy’s claims against Allen cannot be considered “covered allegations” because no allegations arising outside the scope of employment are covered, as shown above. Second, although the meaning of the phrase “not covered by the [GTCA] ” may be unclear, this case does not raise the question of whether there are any conceivable claims that are “covered” by the GLA and “not covered by the [GTCA] That question is not before us. Rather, we only hold that the GLA makes clear that the GLA provides no coverage for actions taken outside the scope of employment.

Similarly, the fact that the GLA may be ambiguous as to whether it provides coverage for malicious prosecution arising out of actions by state officers and employees within the scope of employment (which we need not decide in this case) does not render the GLA ambiguous with regard to coverage for actions by state officers and employees acting outside the scope of employment, which is the only issue before us.

More specifically, the trial court essentially accepted McCoy’s argument below that the GLA is ambiguous because although on its face it purports to cover claims for malicious prosecution in that the GLA specifically includes malicious prosecution in the definition of “personal injury,” in actuality “there is no possible scenario whereby the insurance policy would provide coverage for malicious prosecution.” As McCoy argued:

First, an employee could never be held liable for malicious prosecution committed in the course and scope of their employment because actions against an employee acting in the course and scope of their employment are required to be brought under the GTCA. However, the GTCA expressly bars actions for malicious prosecution. Secondly, if an employee committed the tort of malicious prosecution outside the scope of their employment and a Plaintiff brought suit outside of the GTCA, then the insurance policy would never apply because the policy states that it provides coverage only for acts committed while in the course and scope of employment.

As shown by McCoy’s own argument, there is no ambiguity in the GLA regarding coverage for a claim of malicious prosecution arising outside the scope of employment because no claims arising outside the scope are covered by the GLA. Rather, in her attempt to create an ambiguity in the GLA, McCoy relies on an exclusion from the State’s waiver of liability under the GTCA for claims of malicious prosecution, see OCGA § 50-21-24 (7), which can only come into play for claims falling under the GTCA, i.e., claims arising out of actions by state officers or employees made in the scope of employment. But, as already shown, the only claims at issue in the present appeal concern Nicole Allen’s conduct outside the scope of employment. Just because the GLA may raise questions about coverage under the GTCA for claims within the scope of employment, which are not relevant to this case, does not mean that the GLA must be construed to cover claims outside the scope of employment. King-Morrow v. American Family Ins. Co., 334 Ga. App. 802, 803 (780 SE2d 451) (2015) (court must determine whether the relevant policy language is ambiguous).

For the above reasons, we conclude that the GLA does not cover any of McCoy’s surviving claims against Allen in the underlying suit. It follows that DOAS did not breach any obligation in the GLA to defend or to indemnify Allen for those claims. The trial court therefore erred in denying DOAS’s motion for summary judgment and erred in granting summary judgment in favor of McCoy. Those rulings are hereby reversed, and the case is remanded for entry of summary judgment in favor of DOAS on all claims.

Judgment reversed and case remanded with direction.

Doyle, C. J., Dillard, P. J., Andrews, Ray, Mercier and Bethel, JJ., concur. Ellington, P. J., and Reese, J., dissent.

ELLINGTON, Presiding Judge,

dissenting.

I respectfully dissent because I agree with the trial court that the General Liability Agreement (“GLA”) is ambiguous.

Judgment was entered in the underlying lawsuit in favor of Melinda McCoy on her claims of malicious prosecution and violation of the Racketeer Influenced and Corrupt Organizations (“RICO”) statutes. I agree with the majority that the underlying judgment against the state employee defendant, Nicole Allen, could have established liability only for her actions made outside the scope of her employment. Accordingly, the pertinent issue is whether the GLA nevertheless provides coverage for those actions.

An insurance policy, considered as a whole, that is subject to two reasonable interpretations, one providing for coverage and one excluding coverage, is ambiguous, and the ambiguity must be strictly construed against the insurer as the drafter of the document. American Strategic Ins. Corp. v. Helm, 327 Ga. App. 482, 485-487 (759 SE2d 563) (2014). Under the GLA, the Department of Administrative Services (“DOAS”) will pay those sums that a covered party becomes legally obligated to pay as damages because of “personal injury.” In turn, “personal injury” is defined to include personal injury arising out of an occurrence of “[fjalse arrest, detention or imprisonment, abuse of process or malicious prosecution.” Further, the GLAprovides that “[tjhis Agreement will respond to any covered allegation in order to defend and pay ‘damages’ on behalf of a Covered Party when a claim or ‘lawsuit’ is filed and is not covered by the Georgia Tort Claims Act [the ‘GTCA’].” No coverage is provided under the GLA for claims “filed in any court of the State of Georgia that are covered by the [GTCA].”

Under the GTCA, a state employee “who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.” OCGA § 50-21-25 (a). Rather, the GTCA “constitutes the exclusive remedy for any tort committed by a state officer or employee.” Id. Further, the GTCA provides that the state shall have no liability for malicious prosecution. OCGA § 50-21-24 (7). Thus, if a state employee commits the tort of malicious prosecution, any lawsuit or recovery by the injured party arising from that tort must be founded on acts outside the scope of the state employee’s official duties or employment.

The GLA, on the one hand, contemplates coverage for a Covered Party “acting in the course and scope of their duties with a participating department,” while simultaneously contemplating that it will provide coverage for the tort of malicious prosecution. But the GLA’s “course and scope” requirement negates any possible coverage for a claim of malicious prosecution. I find persuasive the observation of the trial court that

[i]f the GLA was meant to only cover torts committed in the course and scope of employment, then there would be no need for the policy to exist at all, since the GTCA would control. Nevertheless, the DOAS included malicious prosecution in the policy and thus, it clearly meant for malicious prosecution to be a covered tort.

“[I]f there are conflicting or repugnant clauses in an insurance policy, the court will construe them in favor of the insured, so as to prevent a forfeiture.” (Citation and punctuation omitted.) Davis v. United American Life Ins. Co., 215 Ga. 521, 527 (2) (111 SE2d 488) (1959). As the GLA’s provisions are conflicting and repugnant insofar as they contemplate coverage for a claim of malicious prosecution as well as require that an occurrence be committed or allegedly committed in the “course and scope” of a covered party’s duties with a participating agency, the GLA is ambiguous. In order to effect the expressed intent of the GLA to provide coverage for the tort of malicious prosecution, the clause allowing for such coverage must be adopted to the exclusion of the conflicting provisions of the GLA. See Davis v. United American Life Ins. Co., 215 Ga. at 528 (2).

Further, I disagree with DOAS’s contention that Georgia law precludes coverage under the GLA for acts committed outside the scope of employment. OCGA §§ 45-9-1 (a) and 45-9-4 (a) allow DOAS to maintain a liability agreement insuring or indemnifying state employees “against personal liability for damages arising out of the performance of their duties or in any way connected therewith.” (Emphasis supplied.) The statutory language authorizes the provision of insurance to state employees that is fundamentally broader than the “course and scope” language which DOAS included in the GLA and does not require that the GLA be interpreted to deny coverage here. Indeed, McCoy’s malicious prosecution claim in the underlying lawsuit was at least “connected” with Allen’s employment with the Rabun County office of the Georgia Division of Family and Children Services.

Lastly, I find without merit DOAS’s contention that the state’s sovereign immunity precludes it from paying damages on account of a RICO claim under the GLA. As noted above, the General Assembly authorized DOAS to provide the GLA to insure against the “personal liability” of state employees, and the GLA does not provide coverage for claims covered by the GTCA. The underlying judgment can only be seen as against Allen in her personal capacity, and it established her liability only for actions outside the course and scope of her employment. The GTCA does not preclude claims against state employees outside the scope of their official duties or employment. SeeOCGA § 50-21-25 (a) (“[Njothingin this article shall be construed to give a state officer or employee immunity from suit and liability if it is proved that the officer’s or employee’s conduct was not within the scope of his or her official duties or employment.”). Our holding in Tricoli v. Watts, 336 Ga. App. 837, 840 (4) (783 SE2d 475) (2016) that, where the GTCAis the exclusive remedy, the Georgia RICO Act could not be invoked as an alternate remedy or waiver of sovereign immunity for the tortious conduct of state employees, does not apply here.

Decided March 16, 2017

Samuel S. Olens, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Julie A. Jacobs, Robin J. Leigh, Senior Assistant Attorneys General, for appellant.

Cathey & Strain, Dennis T. Cathey, Matthew A. Cathey, for appellee.

I would affirm the judgment of the trial court.

I am authorized to state that Judge Reese joins in this opinion.

       The only other DFCS employee named as a defendant was dismissed during the underlying action.

       See OCGA § 50-21-26 (providing that no action can be commenced against the State under the GTCA unless and until notice in a specified form has been timely presented to the State).

       “The 1991 amendment [to the Constitution] was passed to extend sovereign immunity to all state departments and agencies, regardless of insurance, and to substitute the insurance waiver provision in previous constitutions with a tort claims waiver.” Miller v. Ga. Ports Auth., 266 Ga. 586, 588 (470 SE2d 426) (1996) (footnote omitted).

       “An official function is one performed within the officer’s or employee’s scope of authority, including both ministerial and discretionary acts.” Todd v. Kelly, 244 Ga. App. 404, 406 (1) (535 SE2d 540) (2000) (footnote omitted); Gilbert v. Richardson, 264 Ga. 744, 753 (6) (452 SE2d 476) (1994).

       See OCGA § 50-21-24.

       For claims allowed against the State by the GTCA, the tort victim must name as a party defendant the state government entity for which the state officer or employee was acting; the individual may not be named as a defendant “for an act or omission for which the state is liable under [the GTCA].” OCGA § 50-21-25 (b). If the state officer or employee is individually named in such a case, “the state government entity for which the state officer or employee was acting must be substituted as the party defendant.” Id.

       This is a somewhat charitable position for this Court to accept. As shown above, in the earlier appeal in this case, this Court accepted McCoy’s then position that she brought claims in the underlying suit against the DFCS defendants for their actions within the scope of their employment. And “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” Under that posture, McCoy would have no claims pending whatsoever because, as shown above, she failed to provide ante litem notice of her claims under the GTCA, the exclusive remedy for any tort committed by a state officer or employee within the scope of his or her official duties or employment.

       We note that although the policy defines “personal injury” to include malicious prosecution, the Coverage Agreement states that it will pay only damages resulting from personal injury “to which this coverage applies.”

       The GLA also excludes “[cjlaims relating to an ‘occurrence’ committed or allegedly committed by a Covered Party while outside the course and scope of their duties with a participating ‘department.’ ”


author: Self, Judge.

text:
    A16A1566.
    WILLIAMS et al. v. HSBC MORTGAGE SERVICES, INC.
    (796 SE2d 923)
   Self, Judge.

In this case involving an action to quiet title, see OCGA § 23-3-42, Joann and Edward Williams appeal from the trial court’s order granting summary judgment in favor of HSBC Mortgage Services, Inc. (“HSBC”). They assert that the trial court erred in the following ways: (1) granting HSBC’s motion to open default; and (2) “granting summary judgment by improperly resolving disputed issues of material facts and applying the incorrect law.” For the reasons explained below, we reverse the trial court’s order allowing HSBC to open its default.

1. The Williamses argue that the trial court should not have granted the motion to open the default because HSBC failed to set forth sufficient facts showing a meritorious defense under oath. In support of this argument, the Williamses point out that the affidavits submitted in support of HSBC’s motion to open its default addressed only the issue of excusable neglect, that HSBC’s answer did not allege sufficient facts to support a meritorious defense, and that the verification attached to HSBC’s answer was not notarized.

“Generally, the opening of a default rests within the sound discretion of the trial court. [Cit.]” C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 346 (1) (398 SE2d 297) (1990). But in the absence of the preconditions for opening a default set forth by the General Assembly in OCGA § 9-11-55 (b), “the trial judge has no discretion to open the default.” (Citations and punctuation omitted.) Id.

Upon the payment of costs, a prejudgment default may be opened under OCGA § 9-11-55 (b) on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) settingup a meritorious defense. This court has previously held that the “showing” required by this Code section to be made “under oath” includes the showing of a “meritorious defense.”

(Citation and punctuation omitted.) SunTrust Bank v. Perry, 233 Ga. App. 701 (505 SE2d 230) (1998).

In this case, the Williamses are correct that the affidavits submitted in support of HSBC’s motion to open its default address only the ground of excusable neglect and contain no facts establishing a meritorious defense. And while HSBC asserts that its verified answer satisfied the meritorious defense precondition, the verification “does not contain the signature of a notary or any other indication that it was made under oath. In the absence of a valid jurat, the purported verification is without effect as an affidavit. [Cit.]” SunTrust Bank, 233 Ga. App. at 702. See also OCGA § 9-10-113 (governing sufficiency of verification for affidavits and answers). Accordingly, we do not reach the question of whether HSBC’s answer alleged sufficient facts setting up a meritorious defense.

As there are no other statements under oath relating to HSBC’s defenses in the record, we must conclude that the trial court erred in granting its motion to open default. Wilcher v. Smith, 256 Ga. App. 427, 428-429 (568 SE2d 589) (2002).

Decided February 14, 2017

Reconsideration denied March 22, 2017

Joann Brown Williams, for appellants.

Burr & Forman, Louis G. Fiorilla, Alan D. Leeth, for appellee.

2. In their remaining enumeration of error, the Williamses claim that the trial court erred by granting summary judgment in favor of HSBC on their claim that HSBC’s security interest in their real property was extinguished by accord and satisfaction. Based upon our holding in Division 1, this enumeration of error is rendered moot, and we express no opinion about the merits of the trial court’s summary judgment order.

Judgment reversed.

Barnes, P. J., and Rickman, J., concur.

       In so holding, we note that the plaintiffs are not entitled to the equitable relief sought until the trial court determines “that, admitting every allegation in the petition as true, the plaintiff is entitled to the relief sought.” Times-Journal v. Jonquil Broadcasting Co., 226 Ga. 673, 676 (2) (177 SE2d 64) (1970). “Although a default operates as an admission of the well-pled factual allegations of the complaint, it does not admit allegations not well pled, forced inferences, or conclusions of law.” (Citation, punctuation and footnote omitted.) Standridge v. Spillers, 263 Ga. App. 401, 404 (2) (587 SE2d 862) (2003).