text:
    A17A0096.
    In the Interest of A. S. et al., children.
    (794 SE2d 672)
   Peterson, Judge.

The mother of four young children, A. S., T. S., I. S., and T. R, appeals from the termination of her parental rights. She argues that termination of her rights was against the weight of the evidence and that the juvenile court erred by allowing a supervisor from the Division of Family and Children Services (“DFCS”) to testify as an expert witness. We reverse because the State did not sufficiently establish that the children are likely to suffer harm under the status quo.

Viewed in the light most favorable to the judgment below, In the Interest of M. S. S., 308 Ga. App. 614, 614 (708 SE2d 570) (2011), the evidence shows that the children came to the attention of DFCS when the youngest child, T. R, tested positive for cocaine at his birth in July 2014. On that same day, T. R’s mother also tested positive for cocaine and marijuana. The mother had tested positive for both drugs the preceding month and admitted to smoking marijuana and using cocaine while pregnant. DFCS issued a safety plan placing the children with their maternal grandparents.

The mother continued to test positive for cocaine, marijuana, and oxycodone until she was arrested in September 2014. Following her release from jail, she began to test negative on her drug screens for several months beginning in December 2014, but she had trouble attending meetings due to her work schedule and was referred to an in-home provider. The criminal charges against her were dismissed.

On December 12, 2014, the juvenile court entered an order finding that the children were dependent due to the parents’ continued substance abuse and the mother’s unresolved mental health issues and transferred temporary custody of them to DFCS. The juvenile court directed that the reunification case plan for the mother contain provisions requiring, among other things, that the mother remain drug and alcohol free and test negative on random drug screens for at least six consecutive months, maintain clean and stable housing, complete a psychological evaluation, complete recommended drug and alcohol counseling, complete mental health counseling or therapy, maintain regular employment or have income sufficient to support the family, and support the minor children as required by law.

On March 6, 2015, the juvenile court entered a judicial review order finding that the children remained dependent because although the mother was making progress on her case plan, she had not been participating in drug treatment, and further progress was needed. The mother continued to visit her children and missed less than five out of 130 visits. Of the few visits she missed, one was because she was denied visitation after arriving one minute late.

The mother tested positive for benzodiazepines in May 2015, which she denied taking, stating that she had taken what she believed to be an Aleve obtained from a co-worker for a headache. The mother’s following drug screen was negative, but then she began refusing drug screens. The DFCS supervisor claims that the mother admitted that she used marijuana, but the mother denied this, stating that she was in a room where marijuana was being smoked and was concerned she would test positive. Prior to the permanency hearing, DFCS noted that she also had not completed the required progress toward the goals of providing stable and safe housing and stable income. DFCS indicated that it intended to terminate her parental rights. The three oldest children were moved into foster care in September 2015 when their maternal grandparents were no longer able to care for them.

DFCS filed a petition to terminate the parental rights of the children’s parents on January 14, 2016. At the hearing, which was held in March 2016, the DFCS supervisor testified regarding the department’s involvement with the children. The supervisor indicated that the mother had been “primarily consistent with keeping employment” through a series of fast-food jobs. The mother had also been staying in a trailer owned by her sister since 2014, though the supervisor testified that it was without electricity for a period of several months. Additionally, the supervisor testified that although the mother had originally attended out-patient drug counseling, she stopped going because “she did not feel like she needed it any longer” and because she was having difficulty attending due to her work schedule. The mother was referred to in-home substance abuse services, which she successfully completed. However, after failing the drug screen in May 2015, the mother failed to attend consistently substance abuse and medication management treatment. The mother also failed to complete counseling following a domestic violence incident that occurred during a transitional visit with the children. The supervisor testified that the mother had been prescribed some medication, though she was unsure what for, and that the mother had indicated that she did not want to take the medication. However, the mother testified that she had been taking medication and that she had found it helpful. Finally, the supervisor testified that both parents owed a total of $920 in court-ordered child support.

The State tendered the DFCS supervisor as an expert with respect to the effects of keeping the children in foster care; the mother objected on the basis that the witness had an interest in the case, and the juvenile court overruled her objection. The expert testified that if permanency was not established for the children at their tender ages, they would have a hard time forming healthy attachments to others and would be at increased risk of delinquency She further testified that the children would be harmed by maintaining visitation with their parents because they would face confusion and uncertainty due to their inability to return home to their parents.

At the end of the hearing, the juvenile court stated that the “issue here is compliance.... To me, you must have completed 90-95 percent of your goals. . . . And if you haven’t, I’m going to terminate your rights.” In its order terminating the parents’ rights, the juvenile court found that the mother failed to comply with the reunification plan. The court concluded that because the mother had continued to use drugs, had not supported the children, and had not maintained stable and suitable housing, the children’s “dependency is likely to continue and will not likely be remedied and will likely cause serious physical, mental or emotional harm to the children.” With respect to the emotional and mental health needs of the children, the court found that the children needed a sense of permanency, commitment, and continuity not available through foster care. The mother filed an application for discretionary appeal, which this Court granted.

The mother argues that the termination was against the weight of the evidence. But the mother does not make any clear argument as to precisely where the juvenile court erred; instead, the mother simply presents various facts — that she had ended her relationship with the father who she claims had a “negative effect” on her, had been the only parent to pay some portion of the court-ordered child support, maintained stable employment and residence, completed required parenting classes, completed a drug assessment and drug treatment, maintained regular contact with and regularly visited her children, and failed only one drug test because of a pill she believed to be an over-the-counter pain reliever. Regardless of these issues, we reverse because the State did not sufficiently establish that the children would suffer harm under the current arrangement.

OCGA § 15-ll-310(a) provides that a court considering termination of parental rights must first determine whether at least one of five statutory grounds for termination has been met. Here, the trial court terminated the mother’s rights under OCGA § 15-ll-310(a)(5), which provides that a ground for termination exists when:

A child is a dependent child due to lack of proper parental care or control by his or her parent, reasonable efforts to remedy the circumstances have been unsuccessful or were not required, such cause of dependency is likely to continue or will not likely be remedied, and the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to such child.

Among the grounds on which a juvenile court may find a child dependent due to lack of proper parental care and control are: (1) a parent’s “[ejxcessive use of or history of chronic unrehabilitated substance abuse with the effect of rendering a parent of such child incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of his or her child”; (2) a parent’s “ [p] hysical, mental, or emotional neglect of his or her child or evidence of past physical, mental, or emotional neglect by the parent of such child or another child of such parent”; and (3) a parent’s failure, without justifiable cause, to “significantly for a period of six months prior to the date of the termination hearing... [t]o provide for the care and support of his or her child as required by law or judicial decree ... and... [t]o comply with a court ordered plan designed to reunite such parent with his or her child.” OCGA § 15-ll-311(a)(2), (a)(5), (b)(2), (3). The juvenile court relied on each of these grounds in terminating the mother’s parental rights here.

Once the juvenile court has found that the statutory grounds for termination have been met, the juvenile court then considers whether termination is in the child’s best interest after considering several specified factors. OCGA § 15-ll-310(b). Grounds for termination must be proven by clear and convincing evidence. OCGA § 15-ll-320(a). The juvenile court’s order terminating parental rights must “[c]on-tain written findings on which the order is based, including the factual basis for a determination that grounds for termination of parental rights exist and that termination is in the best interests of the child[.j” OCGA § 15-ll-320(b)(l).

1. By arguing that the termination was “against the weight of the evidence,” the mother implicitly challenges the juvenile court’s finding of dependency, though she did not appeal from the juvenile court’s prior determinations that the children were dependent. Thus, we assume that the evidence was sufficient to show dependency at those times. See In the Interest of D. M., 339 Ga. App. 46, 52 (1) (a) (793 SE2d 422) (2016). After reciting the facts that formed the basis for the prior findings of dependency, the juvenile court concluded that the children remained dependent. Specifically, the juvenile court highlighted the mother’s continuing substance abuse, evidenced by her prior positive drug screen and several refused screenings (which DFCS treated as positive). The juvenile court also pointed to her inability to pay even a symbolic amount of child support or to provide stable housing, as indicated by the numerous months her residence was without power, during which time she stayed with other relatives. These findings supported the trial court’s conclusion that the children were dependent at the time of the termination hearing due to a lack of proper parental care and control. See In the Interest of P. D. W., 296 Ga. App. 189, 194 (1) (b) (674 SE2d 338) (2009) (holding that the mother’s lack of parental care and control were the cause of deprivation when the mother failed to undergo court-mandated drug treatment and obtain adequate housing, among other things).

2. As to whether the children’s dependency is likely to continue, the trial court noted that “[reasonable efforts to remedy the circumstances have been unsuccessful” and pointed to the mother’s inability to remain drug free, pay the symbolic amount of child support, or maintain stable housing. The mother testified that she, and not the father, had been the only one who had paid any portion of the court-ordered child support, though she did not refute that more was owed. And the testimony showed that the mother had been able to maintain the same residence, with the exception of the several months that it was without power. Were the mother’s problems paying the court-ordered child support and maintaining stable and clean housing the only issues supporting the juvenile court’s finding that the deprivation is likely to continue, we would have a much harder time affirming this aspect of the juvenile court’s decision, as the mother was making progress toward remedying those challenges that appear to stem largely from her poverty See In the Interest of S. R. R., 330 Ga. App. 817, 820-21 (769 SE2d 562) (2015) (“This Court will not sustain the termination of a mother’s right to raise her child, based on . . . her poverty” when it does not render her “incapable of caring for her child.”). However, in finding that the children’s deprivation was likely to continue, the juvenile court also pointed to the mother’s inability to remain drug free, and specifically her failed and refused drug screenings.

The mother admitted using marijuana and cocaine during her pregnancy When her youngest child was born, both she and the child tested positive for cocaine and marijuana. This prompted DFCS to remove the children to the care of the mother’s parents. The mother continued testing positive for cocaine and marijuana, as well as oxycodone, in the following months. After she was arrested and began drug treatment, the mother had some negative drug screens. However, in May 2015, the mother tested positive for benzodiazepines, which she denied intentionally taking. The mother’s following drug screen was negative, but then she began refusing drug screens despite being advised the refusal would be treated asa positive screen by DFCS. The DFCS supervisor claims that the mother admitted to using marijuana, but the mother denied this, stating that she was in a room where marijuana was being smoked and was concerned she would test positive. The mother also failed to complete substance abuse counseling following her positive drug screen.

The juvenile court was entitled to weigh the mother’s credibility when she denied intentionally using drugs, as well as her explanation for refusing some of the subsequent drug screens. In the Interest of A. M. H., 292 Ga. App. 318, 319 (665 SE2d 8) (2008) (“On appeal, this Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met.”) (citation omitted); In the Interest of K. C. W., 297 Ga. App. 773, 777 (1) (678 SE2d 213) (2009) (juvenile court “was entitled to give little credence” to mother’s claim of recent improvements with respect to her substance abuse issues). Moreover, “[i]n determining whether the cause of deprivation is likely to continue, the juvenile court may consider the parent’s past conduct[.]” In the Interest of D. W., 294 Ga. App. 89, 92 (1) (c) (668 SE2d 533) (2008). “And it may assign much less weight to assertions of sudden parental fitness when compared to the other evidence.” Id. (footnote omitted). A juvenile court’s finding that a parent is highly likely to continue using illegal drugs supports the conclusion that dependency is likely to continue. See, e.g., In the Interest of A. B., 274 Ga. App. 230, 232 (617 SE2d 189) (2005) (affirming termination where mother continued to struggle with drugs while children were in State care and failed to achieve financial and residential stability). There was, then, evidence to support the juvenile court’s finding that the children’s dependency was likely to continue and would not likely be remedied.

3. We must next examine whether there was clear and convincing evidence that the children’s continued dependency was likely to cause serious physical, mental, emotional, or moral harm. See OCGA § 15-11-310(a)(5). A finding that dependency is likely to continue does not necessarily justify a finding of harm, although facts authorizing such a finding also could support a finding of harm in particular circumstances. See In the Interest of J. E., 309 Ga. App. 51, 57 (1) (d) (711 SE2d 5) (2011) (whole court) (analyzing under “deprivation” standard of former Juvenile Code). Rather, in determining whether harm to the child exists, “our law requires a juvenile court to consider both the relationship between the parent and child at the time of the termination hearing and what might happen if the child were returned to the parent.” In the Interest of E. M. D., 339 Ga.App. 189, 201 (2) (b) (793 SE2d 489) (2016). Thus, the court must assess whether a child currently in foster care is likely to suffer serious harm as a result of continued dependency if the child remains indefinitely in foster care, and “also the likelihood of harm if the child returns to the custody of his parent, notwithstanding that the deprivation persists.” In the Interest of C. L., 315 Ga. App. 607, 611-12 (1) (b) (727 SE2d 163) (2012) (footnote omitted). The State must show that both scenarios would likely cause serious harm in order for a termination of parental rights to be justified. See E. M. D., 339 Ga. App. at 201 (2) (b).

Moreover, “an order terminating parental rights must contain explicit findings supporting the conclusion that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” D. M., 339 Ga.App. at 55 (2) (a) (punctuation and footnote omitted). “Indeed, the propriety of a termination order is inextricably intertwined with one of this republic’s oldest and most sacred fundamental liberties — the right to maintain familial relations and integrity. To this end, a mere recitation that this legal requirement was met will not suffice.” Id. (punctuation and footnotes omitted). Instead, the juvenile court must “ascertain the facts and state not only the end result of that inquiry but the process by which it was reached.” Id. (punctuation and footnote omitted).

In its order, the juvenile court found that the children would suffer harm if they remained in foster care because they would “experience doubt, uncertainty and hesitancy in life[.]” The juvenile court further stated that foster care would not provide the kind of stability the children needed and would put them at risk of delinquency, other antisocial behavior, and “foster care drift.” And at the hearing, the expert testified that the children would be especially susceptible to these risks due to their young ages. But this testimony did not rise substantially above general assertions that long-term foster care is harmful. And there was no evidence that the children’s continued relationship with their mother was harmful. Such testimony is insufficient to show how each individual child will be harmed by the status quo to the degree necessary to justify termination of the mother’s parental rights. See E. M. D., 339 Ga. App. at 204 (2) (b) (generalized finding “that the children would experience harm absent the stability and permanency of an adoptive home” not a sufficient finding of harm); D. M., 339 Ga. App. at 55 (2) (a) (“generalized concerns of doubt, uncertainty, hesitancy in life, and the need for stability and permanence” insufficient; “each child . . . deserves and requires a full, separate, and thoughtful review by the juvenile court of the issues relating to the child”) (punctuation omitted). Compare In the Interest of S. P., 336 Ga. App. 488, 499-500 (2) (c) (784 SE2d 846) (2016) (adequate showing of harm where mother’s recurring psychological issues and repeated incarcerations prevented development of parental bond, the provision of stability for the child, and caused child distress during visitation). Accordingly, even though we are extremely troubled by the mother’s history of drug use and question whether she will ever be able to regain custody of her children, we are nevertheless required to reverse the juvenile court’s judgment.

Decided December 8, 2016.

William R. Ashe, for appellant.

Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen S. Nelson, Calandra A. Harps, Senior Assistant Attorneys General, James A. Chamberlin, Jr., Assistant Attorney General, for appellee.

Judgment reversed.

McFadden, P. J., and Branch, J., concur.

       The parental rights of the father were terminated as well, but that is not an issue in this appeal.

       The mother was advised that DFCS would consider a refusal to be a positive drug screen for the purposes of determining compliance with the case plan.

       The supervisor did complain that the mother had left jobs without a good reason and had not consistently provided documentation of her hours or wages.

       The mother testified that she, and not the father, had been the only one attempting to pay the court-ordered child support.

       Although we do not consider whether a child would be better off with a foster family when deciding to sever the natural parent-child relationship, see In the Interest of S. O. C., 332 Ga. App. 738, 746 (3) (774 SE2d 785) (2015), we also note that the testimony in the record was that no adoptive home had been identified for the children.

       Because of our holding here, we need not reach the mother’s argument that the juvenile court erred in allowing a DFCS supervisor to testify as an expert, although the mother did not object to this effect at trial and therefore likely waived this argument in any event. See Fulbright v. State, 194 Ga. App. 827, 828 (3) (392 SE2d 298) (1990) (“This [Cjourt will review and correct only such error as was made in the trial court and only on the specific basis on which it was presented to the trial court.”) (punctuation omitted).


source: Caselaw Access Project

author: Rickman, Judge.

license: Public Domain

text:
    A16A1713.
    In the Interest of A. H. et al., children.
    (795 SE2d 188)
   Rickman, Judge.

The juvenile court terminated the mother’s parental rights to two-year-old A. H., eight-year-old R H., and six-year-old J. H. after the mother failed to appear at the termination hearing. The mother subsequently filed a motion for new trial and reconsideration. The trial court denied the motion, and the mother filed an application for discretionary appeal, which this Court granted. In her sole enumeration of error, the mother asserts that service by publication was improper because the petitioner did not exercise reasonable diligence to personally serve her with the summons or otherwise provide her notice prior to the termination hearing. Because the record does not demonstrate that the juvenile court ordered service by publication after finding that the petitioner exercised due diligence in its attempt to personally serve the mother, we reverse the juvenile court’s order terminating the mother’s parental rights.

“Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Taylor v. Padgett, 300 Ga. App. 314, 316 (1) (684 SE2d 434) (2009) (citation and punctuation omitted). Pursuant to OCGA § 15-11-282 (d), “[i]f, after due diligence, a party to be served with a summons [in a termination of parental rights case] cannot be found and such party’s address cannot be ascertained,... the court may order service of the summons upon him or her by publication.” See In the Interest of M. J. B., 238 Ga. App. 833, 834 (1) (520 SE2d 497) (1999) (“A juvenile court may order service of process by publication in a termination proceeding if, after reasonable effort, a party cannot be found and her address cannot be ascertained.”) (citations omitted).

“[B]ecause of their sensitive nature and the infringement on fundamental liberties they entail,” judges in termination of parental rights cases “must be vigilant to protect the parties’ rights and interests by observing all formalities required by the law.” In the Interest of C. I. W., 229 Ga. App. 481, 485 (2) (494 SE2d 291) (1997) (reversing termination order where superior court judge acting as juvenile court judge failed to follow procedures in the juvenile code). In addition, it is well settled that

[b]ecause notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts.

Pierce v. Pierce, 270 Ga. 416, 417 (511 SE2d 157) (1999); see also Abba Gana v. Abba Gana, 251 Ga. 340, 343 (1) (304 SE2d 909) (1983). “[A]t a minimum, the decision whether due diligence has been exercised cannot be left to the movant for publication service.” Pierce, 270 Ga. at 418; see also Coker v. Moemeka, 311 Ga. App. 105, 107-108 (2) (a) (714 SE2d 642) (2011). Rather,

it is the duty of the courts to determine whether the movant has exercised due diligence in pursuing every reasonably available channel of information. And, although it is the trial court which first passes upon the legality of notice, the appellate courts must independently decide whether under the facts of each case the search for the absentee interested party was legally adequate.

Pierce, 270 Ga. at 418 (citation omitted); see also Reynolds v. Reynolds, 296 Ga. 461, 463 (769 SE2d 511) (2015).

Due diligence is generally demonstrated by an affidavit. See OCGA § 9-11-4 (f) (1) (A) (authorizing service by publication in “all manner of civil actions” if a party “cannot, after due diligence, be found within the state, . . . and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court”); see also Pierce, 270 Ga. at 416 (husband filed affidavit supporting service by publication and moved for such service in divorce action); Abba Gana, 251 Ga. at 340-341 (wife presented sworn testimony that she could not pinpoint husband’s current residence and moved court to order service by publication in divorce action); Coker, 311 Ga. App. at 107-108 (2) (a) (father filed affidavit supporting service by publication and moved for such service in custody proceeding); In the Interest of M. J. B., 238 Ga. App. at 833-834 (department filed affidavit showing efforts undertaken to locate mother and moved for service by publication in termination proceeding).

Applying these legal principles to the record before us, we find that service of process on the mother failed to comply with the law and, therefore, was insufficient. The mother’s notice of appeal indicates that “[t]he clerk shall omit nothing from the record on appeal.” However, there is nothing in the record showing that the petitioner requested to serve the mother by publication or filed an affidavit or sworn testimony in support of such service. Nor is there anything in the record indicating that the trial court, prior to service by publication, concluded that the petitioner exercised due diligence in attempting to personally serve the mother, or that the trial court issued an order permitting service by publication. See Taylor, 300 Ga. App. at 317-318 (1) (reversing juvenile court order in deprivation proceeding because grandparents “did not file a written motion for service by publication and supporting affidavit as required by statute”). In addition, although the supplemental record in this case includes the “Notice of Summons” which was published, the signature line is blank, and it appears from the termination hearing that neither the juvenile court nor the petitioner’s counsel knew that the parents had been served by publication.

Decided December 13, 2016.

Avrett, Ponder & Withrock, W. Bartlett Barnwell, for appellant.

Matthew D. Thames, Katherine L. O’Gwin, for appellee.

The juvenile court concluded during the hearing on the motion for new trial and reconsideration that the mother failed to keep anyone informed of her address and denied the motion on that basis. However, a finding of due diligence at that juncture of the case is not sufficient to authorize the prior service by publication. First, the finding of due diligence must be made prior to permitting service by publication. Second, the focus of the court’s due diligence inquiry must be on the petitioner’s actions. The court made no finding in that regard.

For the reasons set forth above, we find that the mother was denied due process because, without a motion and affidavit in support of service by publication, and a court order granting service by publication, the mother was not properly served. We, therefore, reverse the juvenile court’s order terminating the mother’s parental rights. See Taylor, 300 Ga. App. at 319 (3).

Judgment reversed.

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


author: MILLER, Presiding Judge.

text:
    A14A1770.
    REGENT v. THE STATE.
    (795 SE2d 190)
   MILLER, Presiding Judge.

In Regent v. State, 299 Ga. 172 (787 SE2d 217) (2016), the Supreme Court of Georgia reversed the judgment of this Court in Division 1 of Regent v. State, 333 Ga. App. 350 (774 SE2d 213) (2015), in which this Court affirmed the denial of Regent’s motion to merge his convictions for aggravated battery and aggravated assault. Consequently, we vacate Division 1 of our opinion in Regent, supra, 333 Ga. App. at 351, and in its place adopt the judgment of the Supreme Court as our own.

The Supreme Court of Georgia did not address or consider Division 2 of our earlier opinion, in which we vacated the banishment provision in Regent’s sentencing order and remanded this case to the trial court for the purpose of resentencing Regent on that provision. Because Division 2 is consistent with the Supreme Court’s opinion, that division becomes binding upon the return of the remittitur. Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001).

Decided December 14, 2016.

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Lenny I. Krick, Assistant District Attorneys, for appellee.

Judgment reversed in part and case remanded.

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


author: Boggs, Judge.

text:
    A16A1660.
    KIM v. HAN.
    (795 SE2d 191)
   Boggs, Judge.

Jaesung Kim, ex-husband of Eun Young Han, appeals from a final order (1) denying his motion to set aside or, in the alternative, motion for new trial, and (2) awarding Han attorney fees pursuant to OCGA § 9-15-14. Kim contends thatthe trial court erred in awarding attorney fees and expenses. We granted Kim’s application for discretionary review, and, for the reasons set forth below, we vacate the award and remand the case for reconsideration.

The record shows that Kim and Han married in South Korea before moving to the United States. In 2006, they purchased a home in Johns Creek, which they later refinanced under Han’s name alone. In 2011, Han returned to South Korea. According to Kim, his wife abandoned him and their two children. Han, however, contends that she returned to South Korea for medical care for multiple illnesses. In 2012, Kim filed for divorce in Korea and, in 2013, the Seoul Family Court issued a final divorce decree.

In August 2014, Han filed a dispossessory action in magistrate court to evict Kim. The parties then entered into a consent decree, and Kim agreed to relinquish possession of the house to Han on August 29, 2014. On August 28, 2014, however, Kim filed in superior court a petition for division of marital property and an emergency motion for injunctive relief against Han, requesting a stay of the writ of possession.

Following an emergency hearing, the trial court granted Kim’s motion and stayed execution of the writ for 30 days. Han moved to set aside the trial court’s order on the ground that she had not received notice of the emergency hearing. Han also requested attorney fees and expenses of litigation under OCGA § 13-6-11. The trial court scheduled a hearing on Han’s motion for September 12, 2014. Kim failed to appear at the hearing, and the trial court, that same day, issued a final order granting Han’s motion to set aside and enforcing the writ of possession. The court also awarded Han $11,335 in attorney fees and $3,744 in expenses pursuant to OCGA § 13-6-11. Kim filed a motion to set aside the September 12 order under OCGA § 9-11-60 or, in the alternative, a motion for new trial. Meanwhile, following an eviction order, Kim moved out of the house.

On November 5, 2014, Han sought attorney fees pursuant to OCGA § 9-15-14(b). She argued that Kim had filed the action against her merely to delay the date he had to move out of the house. Han requested fees in the amount of $36,714.60 for attorney Chung Lee (including $11,335 from the prior award), $5,625 for attorney Lindsay Haigh, $1,700 for an interpreter, and $7,120.49 in costs to defend against Kim’s action, including expenses previously awarded.

On January 16, 2015, the trial court denied in part and granted in part Kim’s motion to set aside or, in the alternative, his motion for new trial. The trial court set aside the portion of the final order awarding Han attorney fees pursuant to OCGA § 13-6-11, but otherwise denied the motion. In a separate order, the trial court granted Han’s motion for attorney fees pursuant to OCGA § 9-15-14. Specifically, the trial court awarded Han attorney fees in the amount of $16,430 for attorney Lee and $6,850 for attorney Haigh. The trial court also awarded Han expenses in the amount of $4,923 for two round-trip airline tickets from South Korea to Atlanta, a rental car bill, and translation services.

1. Kim contends that the trial court was without jurisdiction to award attorney fees because Han’s motion for fees was not timely filed. We disagree.

“Attorney’s fees and expenses under [OCGA § 9-15-14] may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action.” OCGA § 9-15-14 (e).

Kim argues that Han’s motion for attorney fees was not timely because the trial court’s final order was issued on September 12, 2014, and the motion for fees was not filed until November 5, 2014, more than 45 days later. For purposes of OCGA § 9-15-14, the phrase “ ‘final disposition’ in the statute should be considered to be synonymous with the phrase ‘final judgment’ as it is used in OCGA § 5-6-34 (a) (1), that is to say, where the case is no longer pending in the court below.” (Punctuation omitted.) Fairburn Banking Co. v. Gafford, 263 Ga. 792, 793 (439 SE2d 482) (1994). Here, Kim continued to file motions after the September 12 order was entered. On January 16, 2015, the trial court entered an order granting, in part, Kim’s motion to set aside. It was this order that resolved all pending issues in the case and thus was the final disposition.

In the alternative, Kim argues that if the final disposition of the case was entered on January 16, 2015, then Han’s motion was not timely pursuant to Fairburn, supra, and Marshall v. Ricmar, Inc., 215 Ga. App. 470 (451 SE2d 515) (1994). When those cases were decided, former OCGA § 9-15-14 (e) only permitted a trial court to award attorney fees when a motion was filed “within 45 days after the final disposition of the action.” See, e.g., Fairburn, supra, 263 Ga. at 793, n. 1. Now, however, OCGA § 9-15-14 (e) permits attorney fees when a motion is filed “at any time during the course of the action but not later than 45 days after the final disposition!)]” See Ga. L. 1994, pp. 856, 857, § 2. Thus, Han’s motion for fees, filed in November 2014, prior to the trial court’s final order, was timely

2. Kim next contends that the trial court erred in failing to make express findings of fact to support its award of attorney fees. We agree.

OCGA § 9-15-14 authorizes a trial court to award “reasonable and necessary” attorney fees and litigation costs in civil cases against a party that has engaged in abusive litigation. Under OCGA § 9-15-14 (a), the court shall award fees against a party that “asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” Under OCGA § 9-15-14 (b), the court may award fees against a party that “brought or defended an action, or any part thereof, that lacked substantial justification” or “unnecessarily expanded the proceeding by other improper conduct[.]”

In making an award, the trial court found that attorney fees were warranted because Kim’s action and his filing of an application for interlocutory injunction “lacked substantial justification” and that his motion to set aside following a failure to appear at the September 12, 2014 hearing “lacked substantial justification and unnecessarily expanded the proceedings causing the incurrence of unnecessary expenses and costs.” The trial court also found that the fees were reasonable and necessary

Ifthe court awards attorney fees under OCGA § 9-15-14, it must make express findings specifying the abusive conduct for which the award is made, and whether the award is made under subsection (a) or (b) or both. If the court fails to make these findings, the fees award must be vacated and the case remanded for reconsideration.

(Citations omitted.) Williams v. Becker, 294 Ga. 411, 413-414 (2) (a) (754 SE2d 11) (2014). Here, although the trial court failed to explicitly identify the subsection under which it was making the award, the language in the order, as set forth above, tracked the language in OCGA § 9-15-14 (b). See Ellis v. Caldwell, 290 Ga. 336, 339 (2) (a) (720 SE2d 628) (2012) (concluding that trial court made its attorney fee award under OCGA § 9-15-14 (b) based on the language in the order even though the trial court failed to specify the subsection); Williams v. Warren, 322 Ga. App. 599, 602 (1) (745 SE2d 809) (2013) (where “trial court’s findings substantially tracked OCGA § 9-15-14 (a),” failure to specify subsection was not fatal to award).

However, the trial court’s bare findings that Kim’s actions “lacked substantial justification” are insufficient to support the award of fees under OCGA § 9-15-14. See Razavi v. Merchant, 330 Ga. App. 407, 409 (1) (a) (765 SE2d 479) (2014) (trial court’s finding that complaint lacked substantial justification was insufficient to support an award under OCGA § 9-15-14 (b)); Note Purchase Co. of Ga. v. Brenda Lee Strickland Realty, 288 Ga. App. 594, 595 (1) (654 SE2d 393) (2007) (same). Accordingly, the fee award must be vacated and the case remanded for reconsideration. See Becker, supra, 294 Ga. at 414 (2) (a).

3. Kim also contends that the trial court erred in finding that his action and motion to set aside lacked substantial justification, in failing to determine that the attorney fees awarded were reasonable and necessary, and in awarding Han the costs of airline tickets and a rental car. We question whether Han’s travel expenses are recoverable as expenses of litigation under OCGA § 9-15-14. See Bankston v. Warbington, 319 Ga. App. 821, 823 (3) (738 SE2d 656) (2013) (airline tickets not recoverable as expenses of litigation). Nonetheless, we need not reach this issue, or consider Kim’s other arguments, given our disposition of the case. See Ga. Dept. of Transp. v. Douglas Asphalt Co., 295 Ga. App. 421, 425 (2) (671 SE2d 899) (2009).

Decided December 15, 2016.

Taylor English Duma, Vanessa Y. Suh, for appellant.

Lee & Associates, Chung H. Lee; Haigh & Associates, Lindsay M. Haigh, for appellee.

Judgment vacated and case remanded with direction.

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

       The parties dispute whether the Korean family court considered the property in Johns Creek before it issued its final decree. The trial court made no findings of fact in this regard, although the record contains a translation of the Korean divorce decree.

       Shortly after filing the motion to set aside, Kim closed on the purchase of a new home.

       The trial court did find that Kim’s motion to set aside following his failure to appear at the September 2014 hearing lacked substantial justification and unnecessarily expanded the proceedings, causing the incurrence of unnecessary expenses and costs. Pretermitting whether this finding is adequate, the trial court failed to indicate what portion of the fee award was due to the motion to set aside. “As we have held in cases involving OCGA § 9-15-14 (a) or (b), the trial court must limit the fees award to those fees incurred because of the sanctionable conduct. Thus, Tump sum’ or unapportioned attorney fees awards are not permitted in Georgia.” (Citation, punctuation and footnote omitted.) Trotman v. Velociteach Project Mgmt., 311 Ga. App. 208, 214 (6) (715 SE2d 449) (2011).


text:
    A16A1725.
    MATSON v. BAYVIEW LOAN SERVICING, LLC.
    (795 SE2d 195)
   Boggs, Judge.

Jesse Matson IV appeals from the trial court’s grant of summary judgment to Bayview Loan Servicing, LLC (“Bayview”) on his complaint alleging wrongful foreclosure. Matson asserts that the trial court erred by granting summary judgment in favor of Bayview and denying his motion for partial summary judgment on “the issue of the illegality and voidness of defendant’s foreclosure.” The issue in this appeal is whether the reversion provisions in OCGA § 44-14-80 precluded Bayview from exercising its rights under a security deed to foreclose upon Matson’s property For the reasons explained below, we reverse the trial court’s grant of summary judgment to Bayview and affirm its denial of summary judgment to Matson.

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). So viewed, the record shows that Matson purchased the subject property in 1998 through a 30-year first mortgage. In 2002, he borrowed $53,000 from First National Bank under a note with a fixed one-year term that provided for monthly payments of interest with the principal balance due at maturity This note was secured with a security deed on the subject property that was recorded on November 6, 2002. The security deed stated that it secured a promissory note dated November 1, 2002, that Matson promised to pay in full no later than November 10, 2003. It also stated generally that “[t]his Security Instrument secures to Lender . . . the repayment of the Loan, and all renewals, extensions and modifications of the Note.... Borrower does hereby grant and convey to Lender and Lender’s successors and assigns, with power of sale, the [subject] property”

The following year when the note was due, Matson renewed it for another year. Matson and First National Bank then began a practice of renewing the note each time it matured, with the last renewal taking place on March 24, 2010. Neither party has submitted evidence showing that notice of any renewal of the loan was placed in the public record following the filing of the security deed for the original note in 2002.

In February 2013, the Federal Deposit Insurance Corporation, as receiver for First National Bank, assigned its rights, title, and interest under the security deed to Bayview. Based upon Matson’s failure to pay the outstanding principal and interest at the maturity of the last renewal note, Bayview exercised its power of sale on November 5, 2013 and sold the subject property on the courthouse steps.

In April 2014, Matson filed a complaint against Bayview alleging wrongful foreclosure and tortious interference with his lease contracts with tenants occupying the subject property. In this lawsuit, he sought to set aside the wrongful foreclosure, as well as monetary damages, attorney fees, and punitive damages. Both parties subsequently moved for partial summary judgment in their favor on the issue of whether the foreclosure was lawful. The trial court granted summary judgment in Bayview’s favor based upon its conclusion that the note renewals added an additional seven years to the reversion period pursuant to OCGA § 44-14-80 (b). On appeal, Matson asserts that the trial court erred in its analysis because the public record was not supplemented to include the written renewals of the original note referenced in the security deed that was recorded in 2002.

1. In 1994, “OCGA § 44-14-80 was modified to provide for an automatic reverter of title to land described in a security deed after seven years from the maturity date of the debt secured thereby or 20 years if the parties so expressly agree in writing in the security deed.” (Footnote omitted.) 3 Daniel F. Hinkel, Pindar’s Ga. Real Estate Law & Procedure § 21.67 (7th ed. 2015). Subsection (b) of this Code section adds seven years to the reversion period for written renewals of the secured debt if the grantee of the security deed

shall, at any time before the title reverts as provided in subsection (a) of this Code section, make and cause to be recorded upon the record of the conveyance or elsewhere in the public records, with a notation of the place of record of the renewal on the record of the conveyance ... a written renewal of the debt or debts secured or the part thereof which are not fully paid and are not barred, which renewal shall be signed by the original grantor or the grantor’s heirs, personal representatives, or successors in title to the real estate conveyed and shall be dated, the conveyance and record thereof shall remain of full force and effect and the title shall not revert for an additional period of seven years or 20 years according to the appropriate reversion period stated in subsection (a) of this Code section from the date of the renewal unless the debt or debts are paid sooner.

OCGA § 44-14-80 (b). In this case, the record contains no evidence showing whether the written renewals of the loan were recorded as required by this subsection. See Minor v. Neely, 247 Ga. 147, 148 (273 SE2d 853) (1981) (noting under predecessor statute, Ga. Code Ann. § 67-1308, that written renewal of debt must be recorded to prevent title from reverting to grantor 20 years after maturation of debt secured by recorded security deed). We therefore cannot determine from the record before us whether title reverted to Matson as a matter of law on November 10, 2010, seven years after the security deed was first filed, or whether the recording of any of the subsequent loan renewals extended the reversion period.

We find no merit in Bayview’s argument that the security deed included an affirmative statement evidencing an intent “to establish a perpetual or indefinite security interest in the real property conveyed to secure a debt” that extended the initial reversion period to 20 years. See OCGA § 44-14-80 (a) (1). While the security deed stated it secured “all renewals, extensions and modifications of the Note,” it also referenced a date certain for the maturity of the Note. This language does not evidence an intent to establish a perpetual or indefinite security interest in the real property. Cf. Vineville Capital Group v. McCook, 329 Ga. App. 790, 795-796 (1) (b) (766 SE2d 156) (2014) (use of word “forever” defined duration of estate and did not evidence intent to create perpetual or indefinite security interest with 20-year reversionary period). Compare Stearns Bank v. Mullins, 333 Ga. App. 369, 372-373 (1) (776 SE2d 485) (2015) (intent for perpetual or indefinite security interest established where security deed for revolving line of credit expressly provided that it would “remain in effect ‘until released’ ” even if secured debt reduced to zero balance).

Decided December 15, 2016.

R. Krannert Riddle, for appellant.

The Callins Law Firm, Joel A. J. Callins, for appellee.

As we cannot determine from the record before us whether the reversion period was extended based upon the recording of a loan renewal, the trial court erred in granting summary judgment in Bayview’s favor on the issue of wrongful foreclosure.

2. With regard to Matson’s claim that he was entitled to partial summary judgment in his favor, a plaintiff “must demonstrate that there is no genuine issue of material fact as to every element of his or her claims and that the undisputed facts, viewed in the light most favorable to the defendant, warrant judgment in the plaintiff’s favor as a matter of law.” (Citation and punctuation omitted.) BAC Home Loans Servicing v. Wedereit, 297 Ga. 313, 316 (773 SE2d 711) (2015).

In this case, Matson must make a prima facie showing that Bayview’s foreclosure was unlawful. While Matson submitted evidence showing that the security deed was recorded and that seven years had passed from the maturity date of the note, the evidence also shows without dispute that the note was renewed. In the absence of evidence that these renewals were not placed in the public record in the manner required by OCGA § 44-14-80 (b), Matson has not yet made a prima facie showing of reversion of title and an issue of fact therefore remains with regard to Bayview’s alleged wrongful foreclosure. We therefore affirm the trial court’s denial of summary judgment to Matson.

Judgment affirmed in part and reversed in part.

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

       Under certain specified circumstances, not applicable here, the reversion period is 20 years. See OCGA § 44-14-80 (a) (1), (2).

       This is not a case involving an unrecorded security deed in which the written rene wal can be notedorplaced'Vpontheconveyance” itself ratherthan the public record. See OCGA § 44-14-80 (b).

       Ga. CodeAnn. § 67-1308 is substantively identical to OCGA § 44-14-80 (b) withregardto the recording requirement for the rene wal of loans secured by a recorded security deed. See Ga. L. 1941, pp. 487-488, § 1; Ga. L. 1953, pp. 313-315, § 1.


author: McFADDEN, Judge.

text:
    A14A1548, A14A1549.
    UNITED CEREBRAL PALSY OF GEORGIA, INC. et al. v. GEORGIA DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL DISABILITIES et al. (two cases).
    (795 SE2d 197)
    Decided December 16, 2016.

      Parker, Hudson, Rainer & Dobbs, Eric Jon Taylor, Jonathan L. Rue, Rebeccah L. Bower; Jeyaram & Associates, Deepak Jeyaram, for appellants.

      Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Jennifer L. Dalton, Assistant Attorney General; Troutman Sanders, Mark H. Cohen, Jaime L. Theriot, J. Nick Phillips; Robbins Ross Alloy Belinfante Littlefield, Joshua B. Belinfante, Vincent R. Russo, Jr., Kimberly K. Anderson, for appellees.

      Arnall Golden Gregory, Jordan R. Kearney, Glenn P. Hendrix, W. Jerad Rissler, amici curiae.
   McFADDEN, Judge.

In Ga. Dept. of Behavioral Health and Developmental Disabilities v. United Cerebral Palsy of Ga., 298 Ga. 779 (784 SE2d 781) (2016), the Supreme Court of Georgia reversed this court’s decision in United Cerebral Palsy of Ga. v. Ga. Dept. of Behavioral Health and Developmental Disabilities, 331 Ga. App. 616 (771 SE2d 251) (2015). Accordingly, we vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and affirm the trial court’s judgment.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


author: MERCIER, Judge.

text:
    A16A1618.
    THE STATE v. WALSH.
    (795 SE2d 202)
   MERCIER, Judge.

The State appeals the trial court’s exclusion of the results of a horizontal gaze nystagmus (“HGN”) test conducted on James Roy Walsh, who was charged with DUI (less safe) and other traffic violations. In its sole enumeration of error the State argues that irregularity in the administration of the HGN test went to the weight of the test results and not its admissibility We agree, and reverse.

In June 2015, Officer Snively of the Brookhaven Police Department encountered Walsh on Buford Highway in DeKalb County Officer Snively observed a car stopped in the roadway with its brake lights on, but not its headlights. Officer Snively approached the car and observed that it was running, the gear shift was in drive, and Walsh was asleep in the driver’s seat. Officer Snively, who is trained in DUI detection, proceeded to investigate Walsh to determine if he was under the influence of alcohol. As part of his investigation, Officer Snively administered an HGN evaluation on Walsh. After Officer Snively medically cleared Walsh to participate in the HGN evaluation, he administered the test. Officer Snively testified that, based on the results of the test, Walsh’s blood-alcohol level was above the legal limit and he was impaired.

At the hearing on his motion to suppress the HGN test results, Walsh argued that Officer Snively’s failure to ask him to remove his glasses during the test rendered the test results inadmissible. After a hearing on the motion, the trial court excluded the HGN test results. The trial court found that the State failed to show by a preponderance of the evidence that the HGN test was administered properly. This appeal followed.

In reviewing a ruling on a motion to suppress

the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994) (citations omitted). Here, the evidence as to Officer Snively’s administration of the test is uncontroverted, and Officer Snively’s credibility has not been questioned. Walsh argues that the facts are disputed; but this is erroneous. The manner in which the test was conducted is not in dispute, nor is Officer Snively’s testimony The only dispute is over the validity of the test results based on the administration of the test, and whether this rendered the results of the test inadmissible. Accordingly, we utilize a de novo standard of review.

Viewed in this light, the evidence shows that Officer Snively stated he generally has people remove their eyeglasses before conducting an HGN evaluation. Further, he admitted that he conducted the HGN test on Walsh while Walsh had his glasses on, and it would have been a better practice to instruct Walsh to remove his glasses. Officer Snively testified that it was a substantial deviation from his training to fail to remove Walsh’s glasses before he administered the HGN test. However, Officer Snively also testified that he did not see any reflections of light in Walsh’s glasses, and that the glasses did not impair his ability to read Walsh’s responses to the test and would not have had an effect on the interpretation of the test. Officer Snively also testified that he was ultimately able to make a fair evaluation of the six clues, all of which were validated.

In evaluating the admissibility of an HGN test, two findings are necessary: “(1) the general scientific principles and techniques involved are valid and capable of producing reliable results, and (2) the person performing the test substantially performed the scientific procedures in an acceptable manner.” State v. Tousley, 271 Ga. App. 874, 876 (1) (a) (611 SE2d 139) (2005) (citations and punctuation omitted). With regard to the first determination, “we have held that the HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community . . . and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.” Id. at 878 (1) (b) (i) (citation and punctuation omitted).

With regard to the second determination we have held that HGN tests should be administered under law enforcement guidelines. See Hawkins v. State, 223 Ga. App. 34, 38 (1) (476 SE2d 803) (1996). To make such a showing “the State may have the arresting officer testify both as a fact witness, regarding how he or she administered and interpreted the test, and as an expert witness, giving an opinion that he or she administered and interpreted the test properly under law enforcement guidelines.” Tousley, 271 Ga. App. at 880 (1) (b) (ii). Here, Officer Snively testified that although it would have been better practice for him to ask Walsh to take off his glasses, the glasses would have had no effect on his interpretation of the test. Thus, Officer Snively functioned as both a fact witness and an expert witness with respect to whether the HGN test was administered under law enforcement guidelines. “Absent a fundamental error, such as one affecting the subject’s qualification for the HGN test, evidence of the possibility of error goes only to the weight of the test results, not to their admissibility” Parker v. State, 307 Ga. App. 61, 64 (2) (704 SE2d 438) (2010) (punctuation and footnotes omitted).

Here, Officer Snively testified that Walsh exhibited all six validated clues for which the HGN evaluation tests. Under law enforcement guidelines, “a score of four out of six clues on an HGN test constitutes evidence of impairment.” Tousley, 271 Ga. App. at 880 (1) (b) (ii). Walsh has failed to present any evidence as to how having his glasses remain on his face during the HGN test would have made the test invalid. Instead, he insists that “[sjimple logic would demand that an eye following a stimulus would have to adjust or jerk as it passed thick black eye glass frames.” However, he presents no evidence whatsoever that this is the case, and thus he cannot overcome Officer Snively’s testimony that “I was still able to make a fair observation of the six validated clues.”

Decided December 19, 2016

Sherry Boston, Solicitor-General, Wystan B. Getz, Assistant Solicitor-General, for appellant.

George C. Creal, Jr., for appellee.

Accordingly, the record does not support a finding that Officer Snively did not substantially comply with applicable law enforcement guidelines with respect to administering the HGN test. See Parker, 307 Ga.App. at 64 (2). Thus, the evidence that Walsh’s glasses remained on while the HGN test was administered goes to the weight of the test results, not their admissibility See id. Therefore, the ruling of the trial court excluding the results of the HGN test is reversed.

Walsh also contends that the State violated OCGA § 5-7-1 (a) (5), and so its appeal should be dismissed. He argues that the State failed to file a valid certification to the trial court pursuant to OCGA § 5-7-1 (a) (5) (B), because it included its certification in the body of its notice of appeal. Although the notice of appeal was filed in the court below, it is the appellate court who “alone has the authority to determine whether such filing is sufficient to invoke its jurisdiction.” Hughes v. Sikes, 273 Ga. 804, 805 (1) (546 SE2d 518) (2001). Nothing in OCGA § 5-7-1 (a) (5) prohibits the State from filing a certification pursuant to OCGA § 5-7-1 (a) (5) (B) in the same document as its notice of appeal. Thus, we conclude that the State’s notice of appeal was effective, and jurisdiction is properly before this Court. See State v. Brown, 333 Ga. App. 643, 646-647 (1) (777 SE2d 27) (2015).

Judgment reversed.

Ellington, P. J., and Branch, J., concur.


author: Ellington, Presiding Judge.

text:
    A16A1722.
    BARKO RESPONSE TEAM, INC. v. SUDDUTH et al.
    (795 SE2d 198)
   Ellington, Presiding Judge.

Phillip Sudduth filed this action in the State Court of Gwinnett County against Arnica Mutual Insurance Company and Barko Response Team, Inc., alleging, inter alia, that Barko was negligent in performing mold remediation services in his home and that he was sickened by exposure to mold. The trial court denied Barko’s motion for summary judgment, and Barko appeals, contending that there is no evidence that its alleged negligence caused Sudduth’s illnesses and, therefore, that it is entitled to judgment as a matter of law. For the reasons explained below, we reverse.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[.]” OCGA § 9-11-56 (c). “Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” (Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). “In response to a properly supported motion for summary judgment which pierces the pleadings, plaintiffs may not stand upon their allegations, but must come forward with evidence to contravene defendants’ proof or suffer judgment.” (Citation omitted.) Bowden v. Pryor, 215 Ga. App. 351 (450 SE2d 845) (1994). See also Wade v. Howard, 232 Ga. App. 55, 59 (499 SE2d 652) (1998) (accord).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. at 624 (1) (a).

Viewed in a light most favorable to Sudduth as the nonmovant, the record shows the following. On September 29, 2011, Phillip and Elaine Sudduth discovered that a water supply line to their refrigerator was leaking, resulting in water damage to the kitchen flooring and cabinets and the accumulation of two inches of water in the basement. Sudduth contacted his homeowner’s insurer, Arnica. During an inspection, Sudduth and an Arnica representative found black mold under the kitchen floor tiles. Arnica referred Sudduth to Barko, and he contracted with Barko to provide “emergency services” which included drying of the home over a period of one week beginning on October 21, 2011.

Sudduth filed the instant action against Arnica and Barko, alleging, inter alia, that Barko, acting as Arnica’s representative, was negligent in failing to remediate mold in the home and that he suffered physical injury from exposure to mold. Sudduth alleged that beginning in March 2012, five months after Barko serviced his home, he ‘llegan feeling sick” and he “experienced back pain, bruising, headaches, muscle and joint aches, numbness and tingling in the legs, insomnia, dizziness, depression, irritability, blurred vision, memory loss, fibromyalgia, a heightened allergic reaction to various substances, and general weakness.” Sudduth also asserted claims against Barko for economic loss and attorney fees.

Barko filed a motion for summary judgment on Sudduth’s negligence claim for personal injury, as well as Sudduth’s other claims. In its motion, Barko argued, inter alia, that Sudduth failed to present any medical expert testimony, or other evidence, of a causal relationship between Sudduth’s alleged personal injuries and any actions or inactions of Barko, as required under Georgia law. In response, Sudduth maintained that the causal link is a matter of “common knowledge. ... It is common knowledge that people get sick from exposure to mold.” He also argued that he was “diagnosed by a medical doctor. [He] eventually became very ill as a result of exposure to mold[.]” Sudduth submitted an affidavit dated November 17, 2015, from Donald Dennis, M.D., showing that he is an ear, nose, and throat specialist and is board certified in otolaryngology and head and neck surgery. In his affidavit, Dr. Dennis deposed that he treated Sudduth in 2012 “for severe mold allergies arising from exposure to high amounts of mold in his home.” Dr. Dennis’s affidavit attached a letter he had drafted “to whom it may concern,” dated August 6, 2012, which states:

This patient has severe fungal allergies. His home . . . has high levels of toxic mold, and therefore, it is a medical necessity that he get out of the house and not take anything with him and get into a safe place.

After a hearing, the trial court denied Barko’s motion for summary judgment.

In related arguments, Barko contends that the trial court erred in denying its motion for summary judgment as to Sudduth’s personal injury claim, because he failed to identify any record evidence from which a jury could find a causal relationship between his alleged injuries and Barko’s alleged negligence. In particular, Barko contends that Sudduth is required to present expert medical testimony of causation, and that Sudduth cannot rely on a “common knowledge” argument, nor can he rely on a “temporal proximity” argument, to establish causation. Abandoning the “common knowledge” argument he made before the trial court, Sudduth concedes that, in a claim for personal injuries arising from alleged negligent exposure to toxic mold, Georgia law requires the plaintiff to present expert testimony to establish proof of specific medical causation. He contends that he presented some expert testimony on the issue of causation, that is, Dr. Dennis’s affidavit and attached letter, and that the expert testimony was permissibly “supplement[ed]” with “circumstantial evidence of [the] temporal proximity” of his exposure and his illness.

As the Supreme Court of Georgia explained in a recent decision, an expert’s opinion on causation in a toxic tort case is admissible only if the expert concludes that the plaintiff’s exposure to a toxic substance made at least a “meaningful contribution” to his injuries. Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286, 291 (788 SE2d 421) (2016). As quoted above, Dr. Dennis did not give any opinion on the degree to which Sudduth’s exposure to mold contributed to his injuries. Furthermore, he did not state the basis for his understanding that there were “high levels of toxic mold” in Sudduth’s home (suggesting he relied solely on what Sudduth told him), and he does not give the factual basis for his opinion that the mold caused Sudduth’s illnesses (no clinical examination notes, no blood test or other clinical test results, no analysis of mold spores, no epidemiological data, no animal studies, no toxicological data, no experimental results, no learned treatises reflecting a consensus in the scientific community, etc.). See OCGA § 24-7-702 (To be admissible, expert testimony must be based upon sufficient facts or data, the product of reliable principles and methods, and the result of the reliable application of the principles and methods to the facts.). We conclude that Dr. Dennis’s affidavit and attached letter do not constitute expert testimony that is sufficient to clear the summary judgment threshold as proof that Sudduth’s exposure to mold in his home made at least a meaningful contribution to his alleged injuries. Seymour Electrical & Air Conditioning Svc. v. Statom, 309 Ga. App. 677, 681 (710 SE2d 874) (2011) (Where there was no expert medical testimony submitted to the trial court to establish the causal connection between the plaintiffs’ respiratory conditions and the carbon monoxide in their house, the trial court erred in denying the defendant’s motion for summary judgment.); Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 159-160 (3) (b) (658 SE2d 909) (2008) (Where there was no expert medical testimony submitted to the trial court to establish the causal connection between the plaintiffs’ respiratory conditions and the mold in their house, summary judgment was proper for the defendant.).

Moreover, contrary to Sudduth’s contention, we conclude that the gaps left by the scant medical testimony are not filled in by probative nonexpert testimony of a causal link between Barko’s alleged negligence and his alleged injuries. This is not a case where the plaintiff was apparently in good health before the toxic exposure and experienced the onset of symptoms closely following his exposure to the toxin. Here, the record showed that, for years before the September 2011 water leak that Barko was called in to remediate, Sudduth had lived and worked in mold-contaminated environments and that he had suffered multiple health issues including respiratory problems, chronic obstructive pulmonary disease (attributed to a history of cigarette smoking), back pain, and chronic pain syndrome. In addition, as Barko notes, Sudduth has not shown such a temporal proximity as might authorize an inference of cause-and-effect, given the five-month gap between the development of the mold and the onset of his symptoms. For the foregoing reasons, we conclude that the trial court erred in denying Barko’s motion for summary judgment on Sudduth’s personal injury claim and Elaine Sudduth’s claim for loss of consortium.

Decided December 19, 2016.

Hawkins Parnell Thackston & Young, C. Shane Keith, H. Eric Hilton, for appellant.

Judgment reversed.

Branch and Mercier, JJ., concur.

James Lee Ford, P.C., James L. Ford, Sr., Mitchell E. McGough, for appellees.

       This Court granted Barko’s application for an interlocutory appeal pursuant to OCGA § 5-6-34 (b).

       Elaine Sudduth, Phillip Sudduth’s wife, also alleged a claim for loss of consortium. The trial court’s ruling applied to her derivative claim, and she joins her husband in opposing this appeal.

       See Cowart v. Widener, 287 Ga. at 622, 628 (2) (b) (“[Ejxpert evidence is required where a ‘medical question’ involving truly specialized, medical knowledge (rather than the sort of medical knowledge that is within common understanding and experience) is needed to establish a causal link between the defendant’s conduct and the plaintiff’s injury.” Therefore, “the link between a defendant’s actions and the plaintiff’s injury is beyond common knowledge and experience” in “toxic tort” cases.) (citations omitted; emphasis in original); Hunnicutt v. Hunnicutt, 237 Ga. 497 (228 SE2d 881) (1976) (“The diagnosis and potential continuance of a disease are medical questions to be established by physicians as expert witnesses and not by lay persons.”) (citations omitted); Fouch v. Bicknell Supply Co., 326 Ga. App. 863, 869 (1) (756 SE2d 682) (2014) (“[I]n toxic tort cases, proof of causation generally requires reliable expert testimony which is based, at the least, on the determination that there was a reasonable probability that the negligence caused the injury. The testimony must show at least a probable cause, as distinguished from a mere possible cause.”) (citations and punctuation omitted; emphasis in original); Seymour Electrical & Air Conditioning Svc. v. Statom, 309 Ga. App. 677, 680 (710 SE2d 874) (2011) (Under Georgia law, even if it is “common knowledge that certain fumes are generally dangerous to breathe, a plaintiff still must present expert medical evidence estab-lishingthat the fumes caused that part icular plaintiff ⅛ medical problems.”) (citation omitted; emphasis in original); Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 160 (3) (b) (658 SE2d 909) (2008) (Georgia law requires “expert medical testimony, based at least on reasonable probability, to establish a causal link between exposure to a substance and a medical condition.”) (punctuation and footnotes omitted).

       Barko did not raise any argument on appeal regarding Sudduth’s claims for economic loss (Count 2) and attorney fees (Count 5). Accordingly, we have not reviewed for error the trial court’s denial of Barko’s motion for summary judgment as to those claims.

        See Kilpatrick v. Breg, Inc., 613 F3d 1329, 1335 (11th Cir. 2010) (discussing various forms of evidence which may support a finding that expert testimony meets the standard of reliable scientific knowledge); In re Accutane Products Liability, 511 FSupp.2d 1288, 1290-1303 (M.D. Fla. 2007) (same); Siharath v. Sandoz Pharm. Corp., 131 FSupp.2d 1347, 1356-1374 (N.D. Ga. 2001), aff’d sub nom. Rider v. Sandoz Pharm. Corp., 295 F3d 1194 (11th Cir. 2002) (same).

       Cf. McCarney v. PA Lex Glen, LLC, 336 Ga. App. 271, 273 (784 SE2d 438) (2016) (physical precedent only) (Testimony from the plaintiff’s doctor that “to a reasonable degree of medical certainty the mold in [the plaintiff’s] apartment worsened his medical condition” and that “the conditions of [the] apartment ‘definitely contributed’ to [the plaintiff’s] condition” provided the probability testimony regarding causation needed to withstand a motion for summary judgment.).

        See Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 708(2) (505 SE2d 232) (1998) (referencing “a number of cases which, while apparently admitting that medical evidence showing only a possibility of causal relation between an accident or injury and subsequent death or physical or mental impairment is not, by itself, sufficient to establish such relation, uphold the view that such evidence, in conjunction with other evidence, non-expert in nature, indicating that such a relation exists, although likewise not sufficient by itself to establish the relation, or in conjunction with admitted or obvious facts and circumstances of the case showing that death or physical disability would naturally and probably result from the injury, is sufficient to establish the causal relation”) (citations and punctuation omitted); but see Kilpatrick v. Breg, Inc., 613 F3d at 1343 (The plaintiff could not “overcome the fact that [the physician’s] specific causation testimony [was] rooted in a temporal relationship” that failed to show a causal relationship between the plaintiff’s medical condition and the insertion of a medical device manufactured by the defendant. “Proving a temporal relationship does not establish a causal relationship. Simply because a person takes drugs and then suffers an injury does not show causation. This is a classic ‘post hoc ergo propter hoc’ fallacy which assumes causation from temporal sequence. It literally means ‘after that, because of this.’ It is called a fallacy because it makes an assumption based on the false inference that a temporal relationship proves a causal relationship.”) (citations and punctuation omitted; emphasis in original); McClain v. Metabolife Intl., Inc., 401 F3d 1233, 1243, 1254 (11th Cir. 2005) (“[P]roving a temporal relationship between [consuming a nutritional supplement] and the onset of symptoms does not establish a causal relationship.” Therefore, “the temporal connection between exposure to chemicals and an onset of symptoms, standing alone, is entitled to little weight in determining causation.”) (citations and punctuation omitted; emphasis in original).

       Cf. McCarney v. PA Lex Glen, LLC, 336 Ga. App. at 274 (2) (784 SE2d 438) (2016) (physical precedent only) (stating in dicta that, “even if the medical testimony had been stated only in terms of a ‘possible’ cause, it would [have been] sufficient because it [was] supplemented by probative nonexpert testimony on causation[,]” specifically, the plaintiff’s “testimony of his apparent good health and the onset of his sinus symptoms closely following his exposure to mold could suffice to fill any gaps left by the physician’s testimony”) (citations and punctuation omitted).


author: Branch, Judge.

text:
    A15A0688.
    JOHNSON v. BANK OF AMERICA, N.A.
    (795 SE2d 330)
    Decided December 20, 2016.
    Bobby Johnson, pro se.

      Rubin Lublin, Peter L. Lublin, Jody C. Campbell; McGuire-Woods, Andrew G. Phillips, Jarrod S. Mendel, for appellee.
   Branch, Judge.

In Bank of America, N.A. v. Johnson, 299 Ga. 861 (792 SE2d 704) (2016), the Supreme Court of Georgia reversed this Court’s decision in Johnson v. Bank of America, N.A., 333 Ga. App. 539 (773 SE2d 810) (2015). Accordingly, we vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and affirm the trial court’s judgment.

Judgment affirmed.

Miller, P. J., and Andrews, J., concur.


author: Bloodworth, J.

text:
    15971.
    ATLANTIC COAST LINE RAILROAD COMPANY v. COOK.
    The evidence authorized a finding that the railroad company was negligent in killing the plaintiff’s horse.
    The speed limit of seven miles an hour for trains, prescribed by the city ordinance in question, was not unreasonable, under the evidence as to density of population and the custom of people to walk on the railroad-track in the particular locality.
    It appearing that before argument the trial judge called counsel for both parties to the judge’s stand and told them that he was going to eliminate from his charge to the jury all reference to the city ordinances referred to in the pleadings, and it not appearing that objection to this was then made by counsel, or that there was a request for specific instructions on the subject, the omission of such instructions was not error.
    The charge on the question as to ordinary care on the part of the railroad company, when considered with the remainder of the charge, sufficiently covered the company’s contention on the subject, there being no written request for more specific instructions.
    Decided May 14, 1925.
    Action for damages; from city court of Camilla—Judge Burson. September 20, 1924.

      Gardner & Gardner, Pope & Bennei, for plain till: in error.

      B. M. Davis, contra.
   Bloodworth, J.

1. This was a suit against the Atlantic Coast Line Eailroad Company for damages on account of the killing of a horse. The defendant admitted a prima facie case and failed to successfully rebut the presumption in law that arose against it. There was evidence to show that the track was straight for about a half mile ahead of the point where the plaintiff’s horse was killed; that the headlights of the defendant’s engine were in good order; that the horse ran before the engine for from 100 to 450 feet before being struck and killed; that the engineer saw, or in the exercise of ordinary care could have seen, the h'orse; that the brakes of the engine were in good order; that the engineer could have stopped the train within 30 feet, and that he did not stop at all. The engineer himself testified that he saw the horses (plaintiff’s and others), and that he ran his engine behind the horses for about 100 feet; that he could have stopped in 30 feet, and that he did not stop at all. This, besides the other evidence in the case, was sufficient evidence to authorize the jury to find that the defendant was negligent in the killing of the plaintiff’s horse, and that the killing could have been avoided by the exercise of ordinary care on the part of the defendant. Southern Ry. Co. v. Carter, 139 Ga. 237 (77 S. E. 21); Atlantic Coast Line R. Co. v. Chastain, 15 Ga. App. 707 (84 S. E. 167); Ga. Coast & Piedmont R. Co. v. Smith, 22 Ga. App. 332 (95 S. E. 1017), and cases cited.

2. Special ground 9 of the motion for a new trial sets up, that, the plaintiff having alleged that the defendant was negligent in running its train from twenty to twenty-five miles an hour within the corporate limits of the town when there was a city ordinance limiting the speed of trains to seven miles an hour, and the defendant having attacked the validity of the ordinance as being unreasonable and an interference with interstate commerce, the trial judge erred in failing to charge the jury, in substance, that if the said allegations attacking the validity of the ordinance were established by evidence, the ordinance would be void and should be disregarded by the jury, and the operation of the train at a greater rate of speed than seven miles per hour could not be considered negligence per se. The reasonableness or unreasonableness of an ordinance of this nature depends upon the particular facts and circumstances surrounding it. In this case there was evidence to show considerable population in the city where the ordinance ob-tamed and in the vicinity of the railroad-track, and that there was a path that led out to the railroad-track from a church, and other evidence from which the court could conclude that the density of the population and the custom of the people to walk on the railroad-track would justify the speed limit in question. There was also evidence to show that the towns on this particular “run” of the railroad had a speed limit for trains, varying from six to ten miles an- hour. From the evidence the court could easily have concluded that the -ordinance was reasonable; and, under decisions of this court and of the Supreme Court, the ordinance was valid. N., C. & St. L. Ry. v. Peavler, 134 Ga. 618 (3) (68 S. E. 432). But regardless of this, the court did not err in failing to charge as alleged, because a note of the trial judge attached to this ground of the motion shows that “the court called counsel for both parties to the judge’s stand before argument was begun and told them that he was going to eliminate in his charge all reference to the city ordinances plead by either plaintiff or defendant, and eliminated said issues from said case;” and the record does not show that counsel for the plaintiff in error objected to this at the time, or made any request for more specific instructions to the jury on this subject.

3. Several grounds of the motion are directed against the charge. The defendant company introduced evidence to show that the horses were about 30 feet in front of the engine when they came upon the track; and the judge charged the jury, “If you find from the evidence in this case that the plaintiff’s horse came suddenly upon the defendant’s track in front of said engine, and that the engineer in charge of said engine exercised all ordinary care and diligence to prevent said injury to said animal after discovering its presence upon said track, then and in that event the defendant company would not be liable to the plaintiff in any sum, and you should find in favor of the defendant;” and that “the law imposes no legal responsibility upon the defendant if it should appear from the evidence that the killing of the stock was an unavoidable accident,—that is, one in which ordinary care and diligence could not have prevented the happening of the thing that did happen.” Since the defendant admitted killing the horse and seeing it run ahead of the engine before it was killed, but contended that it exercised ordinary care to prevent the injury, the foregoing instructions, when considered in connection with the remainder of the charge, sufficiently covered the contention of the defendant in this regard; there being no written request for more specific instructions to the jury.

4. The controlling issue in this case was whether or not the railroad company was negligent in killing the plaintiff’s horse, and could have avoided it by the exercise of ordinary care and diligence. There was sufficient evidence to authorize the jury to find that the company was so negligent. No reversible error is shown in any ground of the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.


author: Broyles, C. J.

text:
    16068.
    Taylor v. The State.
    Decided May 14, 1925.
    Indictment for bond and stock sale without, license; from Wilkes superior court—Judge Shurley. October 25, 1924.

      F. A. Hooper & Bon, Colley & Colley, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Broyles, C. J.

(a) Such an indictment will not toll the statute of limitations, and where, after the indictment is nolprossed, a second indictment, setting up the same facts as those charged in the first indictment, but in addition alleging other and distinct facts which constitute a misdemeanor, will be barred if not returned within two years after .the commission of such offense, although the second indictment was returned within six months after the first indictment was nolprossed, and although the second indictment alleged that the first indictment had been nolprossed for “an informality.” Taylor v. State (this case), 160 Ga. 331 (127 S. E. 652), decided April 18, 1925, on a question certified by this court.

2. Under the above-stated rulings the court erred in striking the defendant’s special plea in bar to the indictment and in refusing to quash the indictment, and this error rendered the further proceedings in the case nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    15962.
    ALLEN v. DAVIS, agent.
    1. When the entire charge of the court is considered, no material error appears in the instructions complained of.
    2. The alleged newly discovered evidence does not necessitate a new trial. It is not probable that such evidence would produce a different verdict on another trial.
    3. When it is sought to introduce in evidence the testimony given by a witness on a former trial, the question whether the witness is “inaccessible,” in the sense in which that word is used in the Civil Code (1910), § 5773, is, under the circumstances of the case, to be determined by the trial judge, in the exercise of a sound discretion. In view of the preliminary showing made to the trial judge in this case, it can not be held that his discretion was abused in allowing the introduction of such testimony.
    4. The ground of the motion for a new trial relating to the introduction of a book showing sales of railroad-tickets between certain stations at a given time, even' if the ground is in proper form for consideration, does not show error requiring the grant of a new trial.
    5. There was evidence to support the verdict.
    Decided May 14, 1925.
    Action for damages; from city court of Bainbridge—Judge Spooner. September-6, 1924.
    The ground referred to in division 4 of the decision is as follows: “Because the court erred in admitting, over objections of movant, the ticket book of defendant, material parts of which are as follows: ‘ Twenty tickets were sold from Bainbridge to Climax on December 28th, 1918, and four tickets from Bainbridge to Climax, numbers 27, 28, 29 and 30, were sold on December 29th, 1918.’ Before and at the time said evidence was admitted, movant then and there objected to the same, on the ground that the ticket book (record) had not been properly identified, and that said evidence was hearsa]', and that its correctness had not been shown, and that the identifying evidence failed to identify it. Movant contends that the only way this evidence could be admissible would be for the witness Alsobrook to testify that he made the entry, and that they were correct. Movant further contends that the admission of said evidence was a prejudicial error because, when taken in connection with Alsobrook’s testimony, it tended to show that Hugh Allen did not purchase a ticket, and for that reason he was not a passenger in the sense that he bought a ticket.”

      John B. Wilson, W. M. Harrell, E. W. Maynard, Clyde A. Allen, for plaintiff.

      Pope & Bennet, Hartsfield & Conger, for defendant.
   Bloodworth, J.

In the light of all the facts of this case and when the entire instructions given the jury are considered, none of the instructions complained of in the motion for a new trial require a reversal of the judgment. Some of these excerpts contain inaccuracies of expression, but these are not of such materiality as to make it likely that they caused the jury to render a verdict different from what they would have rendered had the instructions been absolutely free from criticism.

Mrs. Joanna Allen sued the director-general of railroads, alleging that her son, Hugh Allen, was killed in a collision of trains between Bainbridge and Climax. The motion for a new trial contains two grounds based on alleged newly discovered evidence. The first of these is absolutely lacking in merit. The alleged newly discovered evidence set out in the second of these grounds is that of G. H. Baggett, who, more than five years after the death of Hugh Allen, makes affidavit that he was near the deceased in the depot at Bainbridge and saw him buy a ticket to Climax. However, J. B. Curry, a friend of the deceased, who went to Bainbridge with Allen and who was at the depot at Bainbridge with him until the train going to Climax came, and who boarded that train and was on the train when the collision occurred in which Allen was killed, and who was a witness for the plaintiff at the trial, testified, on the hearing of the motion for a new trial, that he knew Baggett, and that he did not see him that night, and that if Baggett had been with deceased, he would have known it. In addition, about a dozen witnesses, all of whom had known Baggett for years, each made affidavit that Baggett's reputation was bad, and that the witness would not believe him on oath; more than one of them swearing that Baggett was an habitual liar, was so recognized by those who knew him, and was known in the county as “lying George Baggett.” With these facts, this array of witnesses against him, it would be folly to grant a new trial on this ground. ’ Before a new trial should be granted upon alleged newly discovered evidence, the new evidence should be such as probably would produce a different verdict upon another trial. The evidence of Baggett is not of that character.

Under the preliminary showing made as to the inaccessibility of witness Alsobrook, this court will not hold that the trial court abused its discretion when it allowed the evidence of this witness, taken on a former trial of the case, to be read to the jury. Whether or not a witness is “inaccessible,” in the sense in which that word is used in section 5773 of the. Civil Code (1910), is, “under all the circumstances of the particular case, a question for determination by the trial court in the exercise of a sound discretion.” Atlanta & Charlotte Air-Line Ry. Co. v. Gravitt, 93 Ga. 369 (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. E. 145); Ga., Fla. & Ala. Ry. Co. v. Bittick, 142 Ga. 191, 192 (82 S. E. 548); Taylor v. State, 155 Ga. 785, 793 (6) (118 S. E. 675); Swift v. Oglesby, 8 Ga. App. 540, 542 (2) (70 S. E. 97).

There was no error in allowing in evidence that portion of the “ticket-book” of the railroad which showed the number of sales of tickets from Bainbridge to Climax on December 28th and 29th, 1918. Even should we concede that the last ground of the motion for a new trial is in proper shape for consideration, still, when all the pleadings; all the facts, and the entire charge of the court are considered, a new trial should not result from the alleged error of which complaint is made in this ground of the motion.

There was evidence to support the verdict.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.