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Mar 26 15

Attorney’s Fees; Demand Letters in Contract Collection

by merlin
If an attorney contracts to represent someone, and they fail to pay, what can be done?  Suing clients generally is reputed to cause the attorney’s malpractice insurance to go up, but sometimes the debt can amount to several thousand dollars, and it must be paid.

The foundational statute for a suit seeking to collect attorney’s fees on an amount certain under contract (such as a contract for legal services entered into between an attorney and the person or corporation that retained them for a completed task) is Section 13-1-11 of the Official Code of Georgia.  Specifically, the section that is relevant for smaller-sum cases is Section 13-1-11(a), which addresses the value to be sought if it isn’t otherwise specified in the contract and the particulars that the demand letter, sent at least ten (10) days in advance, must contain.  That subsection is below:

“(a) Obligations to pay attorney’s fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, shall be valid and enforceable and collectable as a part of such debt if such note or other evidence of indebtedness is collected by or through an attorney after maturity, subject to subsection (b) of this Code section and to the following provisions:

(1) If such note or other evidence of indebtedness provides for attorney’s fees in some specific percent of the principal and interest owing thereon, such provision and obligation shall be valid and enforceable up to but not in excess of 15 percent of the principal and interest owing on said note or other evidence of indebtedness;

(2) If such note or other evidence of indebtedness provides for the payment of reasonable attorney’s fees without specifying any specific percent, such provision shall be construed to mean 15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00; and

(3) The holder of the note or other evidence of indebtedness or his or her attorney at law shall, after maturity of the obligation, notify in writing the maker, endorser, or party sought to be held on said obligation that the provisions relative to payment of attorney’s fees in addition to the principal and interest shall be enforced and that such maker, endorser, or party sought to be held on said obligation has ten days from the receipt of such notice to pay the principal and interest without the attorney’s fees. If the maker, endorser, or party sought to be held on any such obligation shall pay the principal and interest in full before the expiration of such time, then the obligation to pay the attorney’s fees shall be void and no court shall enforce the agreement. The refusal of a debtor to accept delivery of the notice specified in this paragraph shall be the equivalent of such notice.”

The case that is found in full below is Textile Rubber and Chemical Company, Inc. v. Thermo-Flex Technologies Company, Inc., decided by the Court of Appeals of Georgia in 2011 and codified at 308 Ga.App. 89.  It contains an enlightening summary of the best methods for implementation of this statute in seeking collection of attorney’s fees on an anticipatory breach of contract – principles that are applicable to many other forms of contract breach – as well as general rules for debt collection that it is good for any general practitioner to keep in mind.

Coppedge & Evans, Joseph B. Evans, Warren N. Coppedge, Jr., Dalton, for appellant.Edward Hine Jr., Rome, Daniel R. Hoyt, for appellees.BARNES, Presiding Judge.

This is the second appeal of this case, which arose out of a dispute between the parties over an agreement to sell certain carpet-making technology for $3 million. In the first appeal, we affirmed the trial court’s decision that the plaintiff, Thermo–Flex Technologies, Inc., was entitled to $500,000 in damages as a matter of law, based upon the defendant Textile Rubber and Chemical Company, Inc.’s failure to make an installment payment, but remanded the case for a jury to decide additional damage claims. Textile Rubber and Chemical Co. v. Thermo–Flex Technologies, 301 Ga.App. 491, 687 S.E.2d 919 (2009). On remand, Thermo–Flex moved for summary judgment against Textile on its claim for statutory attorney fees based on the $500,000 damages awarded. The trial court granted the motion. The third-party defendants, Larry Mullinax and Technology Works, Inc., also moved for summary judgment on the cross-claims brought against them by Textile, and the trial court likewise granted their motion. Textile now appeals these summary judgment rulings made by the trial court on remand. For the following reasons, we affirm the trial court’s grant of summary judgment to Thermo–Flex on its attorney fees claim and to the third-party defendants on Textile’s cross-claims for tortious interference with contract, breach of warranty, and indemnity. We reverse the trial court’s grant of summary judgment to the third-party defendants on Textile’s cross-claims for fraud, negligent misrepresentation, and breach of duty to principal.

When reviewing the grant … of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Footnotes omitted.) Smith v. Gordon, 266 Ga.App. 814(1), 598 S.E.2d 92 (2004). See OCGA § 9–11–56(c).  So viewed, the record showed that at all times relevant to this dispute, Larry Mullinax was the president and owner of 50 percent of the outstanding shares of Thermo–Flex Technologies, Inc., which was in the business of developing a thermoplastic recyclable backing system for carpets. Mullinax also was the president, chief executive officer, chief financial officer, and owner of Technology Works, Inc., a consulting firm in the area of thermoplastic technology.

Due to his expertise in the area, Textile Rubber and Chemical Company, Inc. hired Mullinax to serve as its consultant in the application of thermoplastic technologies in the flooring industry. Mullinax had previously been an employee of Textile and had a longstanding relationship with its founder. Textile paid Mullinax $100,000 a year for his role as a consultant. Mullinax informed Textile that his other company, Thermo–Flex, had developed a thermoplastic recyclable backing system that was ready to go to market and proposed a partnership between the two companies. Mullinax repeatedly advised Textile that the technology developed by Thermo–Flex did not produce a significant amount of “volatile organic compounds” (“VOCs”), which would raise environmental concerns and would be an important issue to potential customers. Textile chose not to perform its own independent testing of Thermo–Flex’s technology for VOCs after Mullinax advised that such testing was unnecessary and would be “a waste of money.”

Textile and Mullinax ultimately concluded that it made more business sense for Textile to simply purchase the thermoplastic backing technology from Thermo–Flex rather than form a partnership. Consequently, on August 11, 2006, Thermo–Flex sold its technology to Textile in return for $3 million in installment payments (the “Agreement”). The Agreement specified that Textile would make three separate payments of $500,000 to Thermo–Flex on the closing date of the sale, on January 1, 2007, and on December 31, 2007, respectively. The Agreement provided that the remaining $1.5 million would be paid in quarterly installments based upon a formula relating to Textile’s future net income and net profits. In addition to these installment payments, Textile agreed that it would “pay to [Thermo–Flex] all costs and expenses, including reasonable attorney[ ] fees incurred by [Thermo–Flex] in enforcing any of the covenants and provisions of this Agreement and incurred in any action brought by [Thermo–Flex] against [Textile] on account of the provisions hereof.”

With respect to the quality of the technology purchased, the Agreement provided that Textile was buying the technology in an “as is” condition, that no warranties of any type (whether for merchantability or fitness for a particular purpose or use, express or implied, or otherwise) [were] being made by [Thermo–Flex], and that any and all such warranties [were] … expressly disclaimed to the fullest extent allowed by Georgia law. The bill of sale for the technology contained a similar disclaimer of all express or implied warranties.

Following execution of the Agreement, Textile paid the $500,000 due at closing and on January 1, 2007. In the summer of 2007, customers notified Textile that the technology produced problematic levels of VOCs. Textile launched its own investigation which confirmed the presence of considerable levels of VOCs. As a result, Textile informed Thermo–Flex that it would not be making the third $500,000 payment due on December 31, 2007, and that it planned to make certain modifications to its installment payments relating to future net profits.

Unwilling to accept Textile’s unilateral changes to the payment arrangements, Thermo–Flex sued Textile for anticipatory breach of contract and sought contractual damages of $2,000,000, plus accrued interest, court costs, and attorney fees. Textile counterclaimed for breach of contract on the ground that the technology was defective for containing problematic levels of VOCs. Textile also successfully moved to add Mullinax and Technology Works as third-party defendants and asserted cross-claims against them for tortious interference with contract, breach of warranty, fraud, negligent misrepresentation, breach of duty to principal, and indemnity.

The trial court thereafter granted partial summary judgment to Thermo–Flex, concluding that the uncontroverted evidence showed that Textile had committed an anticipatory breach of contract by unilaterally changing the payment arrangements. Regarding the measure of damages, the trial court ruled that Thermo–Flex was entitled to entry of judgment in the amount of $500,000 plus interest based upon Textile’s failure to make the December 31, 2007 installment payment. As to the $1.5 million in installment payments relating to Textile’s future net profits, the trial court ruled that Thermo–Flex was “ entitled to some or all of the $1.5 million if it [could] show with reasonable certainty the extent to which [Textile] could have used the technology profitably.” Additionally, the trial court granted summary judgment to Thermo–Flex on Textile’s breach of contract counterclaim, reasoning that any oral representations concerning VOCs would constitute inadmissible parol evidence and could not be used to vary the plain terms of the warranty disclaimers in the Agreement. The trial court reserved ruling on the issue of attorney fees.

Textile appealed to this Court, and we affirmed in part and vacated in part the trial court’s decision. See Textile Rubber & Chemical Co. v. Thermo–Flex Technologies, 301 Ga.App. 491,687 S.E.2d 919 (2009). We affirmed the trial court’s grant of summary judgment in favor of Thermo–Flex on its claim for anticipatory breach of contract and against Textile on its counterclaim for breach of contract. Id. at 494–495(1), 496–497(3), 687 S.E.2d 919. We also affirmed the trial court’s entry of judgment in the amount of $500,000 plus interest for Textile’s refusal to make the December 31, 2007 installment payment. Id. at 494–495(1), 687 S.E.2d 919. However, we vacated the trial court’s ruling as to the $1.5 million in installment payments relating to future net profits and held that Thermo–Flex was entitled to recover the present value of the $1.5 million after that value was determined by a jury using the formula set out in our opinion. Id. at 495–496(2), 687 S.E.2d 919.

Following remand, Textile paid to Thermo–Flex the $500,000 plus accrued interest in satisfaction of the judgment relating to the unpaid December 31, 2007 installment payment. Thermo–Flex then moved for summary judgment on its claim for attorney fees predicated on its recovery of those damages. Thermo–Flex argued that it was entitled to attorney fees pursuant to OCGA § 13–1–11 because it made a proper written demand for those fees and Textile failed to pay the amount demanded. Textile responded that Thermo–Flex could not recover attorney fees because its demand letter failed to comply with the statutory notice requirements. Concluding that Thermo–Flex had made a demand for attorney fees that substantially complied with OCGA § 13–1–11, the trial court granted summary judgment to Thermo–Flex and entered judgment in the amount of $55,417.65, representing the amount of fees owed by Textile.

Mullinax and Technology Works also moved for summary judgment, contending that there were no genuine issues of material fact as to Textile’s cross-claims for tortious interference with contract, breach of warranty, fraud, negligent misrepresentation, breach of duty to principal, and indemnity. Textile responded that there were several disputed issues of material fact and that Mullinax and Technology Works had no standing to invoke or enforce the warranty disclaimers in the Agreement since they were not parties to that contract. Concluding that all of Textile’s cross-claims failed as a matter of law, the trial court granted summary judgment in favor of Mullinax and Technology Works. This appeal followed in which Textile challenges the two summary judgment decisions by the trial court on remand.

1. Textile first claims that the trial court erred in ruling that Thermo–Flex’s demand letter complied with the notice requirements imposed by OCGA § 13–1–11 for the recovery of attorney fees. We disagree.

OCGA § 13–1–11 establishes limits and procedures regarding obligations to pay attorney fees “upon any note or other evidence of indebtedness” and such obligations “contained in security deeds and bills of sale to secure debt.” OCGA § 13–1–11(a), (b).1 The parties do not dispute that OCGA § 13–1–11 applies in this case. As a prerequisite to obtaining OCGA § 13–1–11 attorney fees, the party seeking the fees is required to issue a demand notice, which must

(1) be in writing, (2) to the party sought to be held on the obligation, (3) after maturity, (4) [state] that the provisions relative to payment of attorney fees in addition to principal and interest will be enforced, and (5) [state] that the party has 10 days from the receipt of such notice to pay the principal and interest without the attorney fees.Gen. Elec. Credit Corp. of Ga. v. Brooks, 242 Ga. 109, 119, 249 S.E.2d 596 (1978). See OCGA § 13–1–11(a)(3); Trust Assoc. v. Snead, 253 Ga.App. 475, 476(1), 559 S.E.2d 502 (2002). “Substantial compliance with the notice requirement of OCGA § 13–1–11 is all that is required to allow for the recovery of attorney fees.” Community Marketplace Properties v. SunTrust Bank, 303 Ga.App. 403, 405(1), 693 S.E.2d 602 (2010). See Gen. Elec. Credit Corp. of Ga., 242 Ga. at 118, 249 S.E.2d 596. “So long as a debtor is informed that he has 10 days from receipt of notice within which to pay principal and interest without incurring any liability for attorney fees [,] the legislative intent behind the enactment of [OCGA § 13–1–11] has been fulfilled.” (Emphasis omitted.) Gen. Elec. Credit Corp. of Ga., 242 Ga. at 118, 249 S.E.2d 596.

Here, Thermo–Flex relied upon a demand letter that its counsel sent to Textile’s counsel by e-mail and first class mail, return receipt requested, on January 9, 2009 (the “Demand Letter”). The Demand Letter quoted the attorney fees provision contained in the Agreement and stated that Thermo–Flex intended to enforce that provision in this case. The Demand Letter further provided: “Pursuant to OCGA § 13–1–11, notice is herewith given that Textile … may avoid the obligation to pay [Thermo–Flex’s] attorney [ ] fees by paying the open principal balance due under the Agreement of $2,000,000 within ten (10) days of your receipt of this letter.” The $2,000,000 represented the unpaid $500,000 installment payment due on December 31, 2007 plus the unpaid $1.5 million in quarterly installment payments relating to Textile’s future net profits. Textile did not make any payments to Thermo–Flex within ten days of receiving the Demand Letter; Textile instead waited and paid $500,000 plus interest to Thermo–Flex after this Court affirmed the entry of judgment in that amount on December 9, 2009. Thermo–Flex then moved for attorney fees in the amount of $55,417.65 for its recovery of the $500,000 plus interest.

Textile argues that the Demand Letter did not substantially comply with the notice requirements of OCGA § 13–1–11 because it demanded payment of the full amount of Thermo–Flex’s claims, $2 million, not the $500,000 as to which Thermo–Flex was awarded summary judgment and upon which judgment had already been entered. Specifically, Textile contends that the Demand Letter was deficient because it demanded payment of $2 million even though (a) only $500,000 of Textile’s payment obligations has matured, and (b) Thermo–Flex ultimately will recover an amount less than the full “face value” of the $1.5 million payment obligation relating to future net profits, since a jury will be instructed to determine the present value of that obligation.

(a) Contrary to Textile’s contention, its full payment obligations have matured. An anticipatory breach of contract accelerates the maturity of the indebtedness and entitles the creditor to demand the face value of the total unpaid debt. See Valley View Church of God in Christ v. King, 236 Ga. 337, 337–338, 223 S.E.2d 701 (1976). Furthermore, a demand notice is timely and proper under OCGA § 13–1–11 even if the specific amount due under the contract will “not [be] fixed until the court’s judgment.” Kauka Farms v. Scott, 256 Ga. 642, 646(5), 352 S.E.2d 373 (1987). Thus, upon Textile’s anticipatory breach of the Agreement, Thermo–Flex was entitled to issue a demand for the face value of the total remaining unpaid debt, $2 million, prior to the entry of judgment on the indebtedness.

(b) We likewise reject Textile’s argument that the Demand Letter was deficient because Thermo–Flex ultimately will recover an amount less than the face value of the $1.5 million payment obligation. A creditor substantially complies with the notice requirements of OCGA § 13–1–11 by setting forth the face value of the debt as reflected in the plain terms of the contract. See Carlos v. Murphy Warehouse Co., 166 Ga.App. 406, 408(2), 304 S.E.2d 439 (1983); Shier v. Price, 152 Ga.App. 593, 595(2), 263 S.E.2d 466 (1979). Moreover, a demand notice is sufficient under the statute, even if the face value reflected in the notice is different from the amount that a jury later determines to be due. See Kroger Co. v. U.S. Foodservice of Atlanta, 270 Ga.App. 525, 530–531(3), 607 S.E.2d 177 (2004); Carlos, 166 Ga.App. at 408(2), 304 S.E.2d 439; Williams v. First Bank & Trust Co., 154 Ga.App. 879, 883–884(5), 269 S.E.2d 923 (1980). See also Kauka Farms, 256 Ga. at 646(5), 352 S.E.2d 373 (“The notice required by OCGA § 13–1–11 could have been sent even though there was uncertainty as to the amount due.”). Accordingly, the Demand Letter substantially complied with OCGA § 13–1–11 by setting forth the face value of the unpaid debt obligation, $2 million, even if Thermo–Flex ultimately may recover somewhat less than that amount after a jury calculates its present value.

For these reasons, there was no genuine issue of material fact as to whether the Demand Letter issued by Thermo–Flex was defective under OCGA § 13–1–11. The trial court, therefore, correctly granted summary judgment to Thermo–Flex on its statutory attorney fees claim.

2. Textile next argues that the trial court erred in granting summary judgment to Mullinax and Technology Works on its cross-claims for breach of warranty, fraud, negligent misrepresentation, breach of duty to principal, and indemnity. 2 We affirm the trial court’s grant of summary judgment on Textile’s cross-claims for breach of warranty and indemnity, but we conclude that there were genuine issues of material fact precluding summary judgment on the cross-claims for fraud, negligent misrepresentation, and breach of duty to principal.

(a) Textile maintains that the trial court erred in ruling that its cross-claim for breach of warranty against the third-party defendants could not succeed in light of the dismissal of its counterclaim for breach of warranty against Thermo–Flex. But, in its brief filed in the trial court, Textile conceded that summary judgment would be proper on this cross-claim if we affirmed the trial court’s grant of summary judgment to Thermo–Flex on Textile’s breach of warranty counterclaim. And we did affirm the trial court’s grant of summary judgment on Textile’s counterclaim in our previous decision, see Textile Rubber & Chemical Co., 301 Ga.App. at 496–497(3),687 S.E.2d 919, as the trial court noted in its order granting summary judgment to the third-party defendants on the breach of contract cross-claim. Textile cannot now undo its concession on appeal. “To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, ‘[A party] must stand or fall upon the position taken in the trial court.’ ” (Citation omitted.) Heard v. City of Villa Rica, 306 Ga.App. 291, 293(1), 701 S.E.2d 915 (2010). See also Craig v. Bailey Bros. Realty, 304 Ga.App. 794, 798(2), n. 3, 697 S.E.2d 888 (2010) (“We will not consider new arguments in opposition to a motion for summary judgment raised for the first time on appeal.”).

(b) Textile also maintains that the trial court erred in ruling that its fraud and negligent misrepresentation cross-claims failed as a matter of law because it could not prove reasonable reliance. Both fraud and negligent misrepresentation require the injured party to prove reasonable reliance upon the alleged misrepresentations of the tortfeasor. See Hardaway & Co. v. Parsons, Brinckerhoff, Quade & Douglas, Inc., 267 Ga. 424, 426(1), 479 S.E.2d 727 (1997); Alexander v. A. Atlanta Autosave, 272 Ga.App. 73, 75(1), 611 S.E.2d 754 (2005). The trial court held that Textile could not establish that it reasonably relied upon Mullinax’s alleged misrepresentations concerning the level of VOCs in Thermo–Flex’s thermoplastic backing technology, given that the Agreement contained disclaimer of warranty language.

The trial court’s ruling was erroneous because it incorrectly assumed that Mullinax and Technology Works were entitled to invoke and enforce the disclaimer provision of the Agreement even though they were not parties to that contract. The disclaimer provision in the Agreement referred only to warranties by the “Seller,” defined in the Agreement as Thermo–Flex. Nor did the disclaimer in the bill of sale refer to representations or warranties by non-contracting parties. Moreover, the mere fact that someone would benefit from the performance of a contract is insufficient to give that person standing to enforce the contract. Marvel Enterprises v. World Wrestling Federation Entertainment, 271 Ga.App. 607, 614(5), 610 S.E.2d 583 (2005). Rather, there must be a showing that the person was a third-party beneficiary. Id. Here, neither Mullinax nor Technology Works claimed to be a third-party beneficiary of the Agreement. It follows that Mullinax and Technology Works had no standing to invoke or enforce the protections afforded by the Agreement in order to preclude the fraud and negligent misrepresentation cross-claims brought against them.

It is true that under certain circumstances, an agent of a contracting party may be entitled to rely upon a disclaimer or merger clause contained in the contract to preclude claims against the individual agent for his or her alleged representations. See Tampa Bay Finance v. Nordeen, 272 Ga.App. 529, 534(2), 612 S.E.2d 856 (2005); Yee v. Barnwell, 193 Ga.App. 820, 822–823(1), 389 S.E.2d 392 (1989). In the present case, however, Mullinax was not simply acting as an agent for Thermo–Flex in his dealings with Textile. Rather, Mullinax also had a pre-existing relationship with Textile under which he was being paid $100,000 a year to serve as a consultant and expert to Textile on the very technology forming the basis for the Agreement. 3 Under these unique circumstances, a jury would be entitled to find that Textile reasonably relied on the representations made by Mullinax concerning the level of VOCs in Thermo–Flex’s technology, thereby giving Textile the false assurance that it could safely enter into an “as is” purchase agreement with Thermo–Flex. Accordingly, there were genuine issues of material fact on the issue of reasonable reliance that must be resolved by a jury rather than by the courts.4 See Potts v. UAP–GA AG CHEM, 256 Ga.App. 153, 156(1), 567 S.E.2d 316 (2002) (“Whether reliance is reasonable is normally a question for the jury[.]”). The trial court thus erred in granting summary judgment to Mullinax and Technology Works on the fraud and negligence misrepresentation cross-claims.

(c) Textile further maintains that the trial court erred in ruling that its cross-claim for breach of duty to principal failed as a matter of law because it could not prove proximate cause. An essential element of a tort claim for breach of duty is that the alleged negligence be a proximate cause of the plaintiff’s injury. See Hoffman v. Insurance Co. of North America, 241 Ga. 328, 329–330, 245 S.E.2d 287 (1978). The trial court held that proximate cause could not be established because Textile’s act of signing the Agreement with the disclaimer provision cut off any causal connection between Mullinax’s alleged misrepresentations and any damages that Textile suffered.

The trial court erred in concluding that a jury could not find that Mullinax’s alleged misrepresentations proximately caused Textile’s damages.

It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act or omission of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury.

(Citation omitted.) Pruette v. Phoebe Putney Memorial Hosp., 295 Ga.App. 335, 341(1)(c), 671 S.E.2d 844 (2008). Hence, an intervening act does not break the causal connection between the defendant’s conduct and the plaintiff’s injury, if the intervening act was triggered by the defendant’s conduct or could have reasonably been anticipated or foreseen by the defendant. SeeWalker v. Giles, 276 Ga.App. 632, 645(2), 624 S.E.2d 191 (2005).        In the instant action, a jury could find that Textile’s act of entering into the Agreement containing the disclaimer provision was triggered by the misrepresentations of its paid consultant and expert, Mullinax. Likewise, a jury could find that Mullinax reasonably could have anticipated or foreseen that his misrepresentations concerning the level of VOCs while serving as a paid consultant and expert would lead Textile to enter into the Agreement. Proximate cause is generally an issue for the jury, see Walker, 276 Ga.App. at 643(2), 624 S.E.2d 191, and there is no reason to deviate from this rule under the specific facts of this case. The trial court therefore erred in granting summary judgment to Mullinax and Technology Works on the cross-claim for breach of duty to principal.

(d) Finally, Textile maintains that the trial court erred in ruling that its indemnity cross-claim failed as a matter of law because it did not meet the requirements of such a claim under the common law.5

The duty to indemnify may arise by operation of law, independently of contract. If a person is compelled to pay damages because of negligence imputed to him as the result of a tort committed by another, he may maintain an action for indemnity against the person whose wrong has thus been imputed to him. Here, no wrong has been imputed to [Textile], nor does [Textile] have any vicarious liability. Rather, [Textile’s] duty to pay stemmed from its contractual obligation [to Thermo–Flex]. Under these circumstances, common law indemnity principles do not apply.(Punctuation and footnotes omitted.) Nguyen v. Lumbermens Mut. Cas. Co., 261 Ga.App. 553, 557(2), 583 S.E.2d 220 (2003). It follows that the trial court did not err in granting summary judgment to Mullinax and Technology Works on the cross-claim for common law indemnity. See id.;North Georgia Elec. Membership Corp. v. Thomason & Holsomback Constr. Co., 157 Ga.App. 719, 720(1), 278 S.E.2d 433 (1981).

Judgment affirmed in part and reversed in part.

——–

Notes:

1. Where, as here, the underlying contract “provides for the payment of reasonable attorney[ ] fees without specifying any specific percent,” OCGA § 13–1–11 provides that the party seeking fees may recover “15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00.” OCGA § 13–1–11(a)(2). Textile does not challenge the trial court’s method of calculating the attorney fees or the specific amount of fees awarded; rather, Textile’s challenge is limited to whether the preconditions for such an award were met.

2. Textile does not challenge the trial court’s grant of summary judgment on its cross-claim for tortious interference with contract or present any argument with respect to that claim in its appellate brief. Any challenge to that ruling by the trial court thus has been abandoned. See Court of Appeals Rule 25(a)(3) and (c)(2); Steed v. Fed. Nat. Mtg. Corp., 301 Ga.App. 801, 804, n. 2, 689 S.E.2d 843 (2009).

3. In Yee, the defendant served as an agent of both the buyer and seller, but he was not paid to act as the agent of the buyer. See Yee, 193 Ga.App. at 822–823(1), 389 S.E.2d 392. Furthermore, the alleged fraud in Yee was that the defendant failed to disclose his ownership or interest in the seller company to the buyer, but the record showed that the buyer learned that the defendant held such an interest several months before executing the contract yet inquired no further. Id. We held that under those circumstances, “there [was] no evidence to justify reliance on a fiduciary relationship” between the defendant and buyer. Id. at 822(1), 389 S.E.2d 392. Here, in contrast, there was evidence in the record that Mullinax was paid a significant sum to serve as a consultant and expert to Textile, and Textile did not learn of the problematic levels of VOCs until after executing the Agreement because of Mullinax’s advice and recommendations as its consultant.

4. Mullinax and Technology Works also contend that by entering into the Agreement containing the disclaimer provision, Textile was estopped from and waived any claim that it relied upon or was injured by the representations of Mullinax. Again, however, Mullinax and Technology Works’ contention is predicated upon the false assumption that they were entitled to rely upon the protections afforded by the Agreement, even though they were not parties to the contract, third-party beneficiaries, or merely agents of a contracting party.

5. Textile does not contend that it had an express or implied indemnification contract with Mullinax and Technology Works.

Mar 11 15

Future Conduct is Indictated by Past Behavior

by merlin

Showing an economic change in a party, or a lifestyle change, may not be enough in child custody disputes, because of the long history of that party with respect to child custody matters.  This rule is exemplified by the following case, In the Interest of C.J., 279 Ga.App. 213 (Ga. App. 2006), which states very well that “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.”

      Rita F. Cooper, Springs, for appellant.

        Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Charissa A. Ruel, Assistant Attorney General, T. Michael Finn, Atlanta, for appellee.

        ANDREWS, Presiding Judge.

        The mother of C.J. appeals from the juvenile court’s order terminating her parental rights. She contends there was not sufficient clear and convincing evidence to terminate her rights and also contends that the juvenile court erred in considering certain expert testimony. After reviewing the record, we conclude there was no error and affirm.

        “On appeal from a termination order, this Court views the evidence in the light most favorable to the appellee and determines whether any rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights to custody have been lost.” In the Interest of F. C., 248 Ga.App. 675, 549 S.E.2d 125 (2001).

        So viewed, the evidence was that the Department of Family and Children Services (Department) removed C.J. from her mother’s care on October 12, 2001. The child was two years old at the time and both parents were homeless and without jobs.1

        The Department caseworker who handled C.J.’s case from December 2002, until October 2004, testified at the termination hearing that she had little contact with the mother during this period. The mother acknowledged that from October 2002, until May 2003, she neither saw nor visited C.J. The mother moved to Tennessee and told the caseworker that she did not have a car and therefore could not visit the child. The caseworker testified that there was a reunification plan in effect at the time under which the mother was to obtain stable housing and employment, submit to drug screens, visit the child, and keep the Department informed of any change of address. The Department attempted to do a home evaluation at the Tennessee address given by the mother, but was unable to do so. When the caseworker arrived at the address, the mother was not there and the home appeared to be abandoned.

        At some point, the mother moved to Alabama and gave the Department two different addresses there, but again the Department was unable to do an evaluation because the mother could not be found at either address. The caseworker stated that in August 2003, an economic support worker in Alabama notified her that the mother was under investigation for food stamp fraud, having claimed that C.J. and another child who was also not in her custody, were living with her. The caseworker who took over C.J.’s case in October 2004, testified that her first contact with the mother was in March 2005. The mother gave several reasons why communications from the Department may not have reached her and claimed that she tried to call people at the Department, but was unable to talk to anyone. The mother admitted that she had the name of her attorney and also had the address and phone number of the juvenile court. She also admitted to being in jail for over a month during August and September 2004.

        When asked, the mother first stated that she had three children, but after being reminded, acknowledged that she actually had five, none of whom was in her custody. The mother submitted proof that she had taken negative drug screens, and that she completed parenting classes, a psychological evaluation and First Placement—Best Placement. As for visiting with the child, there was evidence that the mother had visitation twice a month at the parenting center immediately after C.J. was removed from her care, but missed several visits.

        The mother testified that she had been employed since June 2004, and had been living in the same place since June 2004. Her pay stubs showed that she earned 3,200 in 2004. The mother admitted that she never paid any support for C.J., but said she had never been ordered to do so. She said that she did give her sister 250 for clothes for C.J. at one time. The mother also acknowledged that she never petitioned to have C.J. returned to her, even though she had remarried and claimed to have a home and a job.

        As of August 2003, C.J. had been in four foster care homes. She was returned by three of the foster parents for disrupting the home. C.J. had also disrupted her classroom at school and had run away from her teachers. A child psychologist who evaluated C.J. determined that these problems stemmed from the child’s not being able to form attachments and the disruption and instability of her home life. C.J.’s behavior became noticeably worse after visits with her mother.

        However, C.J.’s school counselor testified that the child had improved noticeably since being placed with her current foster parents. She appeared to be a happy child and was doing well in school. The counselor said that C.J. calls her foster parent “mother” and the biological mother her “other mother.” C.J. calls her foster father “daddy,” and the foster parents intend to adopt her. The counselor also stated that C.J. told her she wanted to be adopted and live with her foster parents “forever.” The counselor testified that she thought it would be very harmful for C.J. to be removed from her foster parents.

        The guardian ad litem testified at the hearing and recommended termination. He noted that the mother had abandoned the child physically, emotionally, and financially. The child had not been with the mother since she was two years old and was now finally in a happy and secure home for the first time in her five years.

        After hearing the evidence, the juvenile court granted the Department’s petition for termination of the mother’s parental rights. This appeal followed.

       1. In several enumerations of error, the mother argues that there was not sufficient clear and convincing evidence to support the termination.

        A juvenile court’s termination of parental rights is a two-step process: The first step requires a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are satisfied, the court must then determine whether termination of parental rights is in the child’s best interest, considering physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home. OCGA § 15-11-94(a), (b)(4)(A)(i)-(iv).

        The mother has never disputed that C.J. is a deprived child, and the facts set out above support this finding. Moreover, because the mother has never appealed any of the juvenile court’s orders finding that C.J. was deprived and extending custody, she is bound by the juvenile court’s finding of deprivation. In the Interest of B.S., 265 Ga.App. 795, 797, 595 S.E.2d 607 (2004).

        The next factor to be considered is whether lack of proper parental care or control is the cause of the deprivation. On this issue the court may consider certain factors which “render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” OCGA § 15-11-94(b)(4)(B)(i). The court may also consider any physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of another child by the parent. OCGA § 15-11-94(b)(4)(B)(v). Further,

        In addition to the considerations in subparagraph (B) of this paragraph, where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.

         OCGA § 15-11-94(b)(4)(C).

        Here, there was evidence that although the mother had completed parenting classes, a psychological evaluation, and drug screens, the mother had failed to provide the Department with information as to her whereabouts so that a home evaluation could be performed; had failed to achieve financial stability; and had physically, financially, and emotionally neglected the child and her other children. Moreover, as the juvenile court held, the mother has not developed or maintained a parental bond with the child and has provided no support for the child. Accordingly, there was clear and convincing evidence that lack of proper parental care is the cause of the deprivation.

        The third determination is whether the deprivation is likely to continue. In making this determination, the juvenile court may consider evidence of present parental misconduct or inability, as well as evidence of past inability. “Such an inference is appropriate, since the juvenile court is not required to reunite the children with the mother in order to obtain current evidence of deprivation or neglect.” In the Interest of T.L., ___ Ga.App. ___, ___, 630 S.E.2d 154 (2006). Here, although some improvement in the mother’s situation had occurred and she had fulfilled some of the requirements of the reunification plan, “[j]udging the credibility of her good intentions was a task for the juvenile court. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact. Further, this Court has held that the trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court.” In the Interest of A.G., 253 Ga.App. 88, 90-91, 558 S.E.2d 62 (2001). Because a parent’s conduct over the years is a better predictor of future conduct than a few months of partial stability, the juvenile court was authorized to infer from the evidence of past conduct that the improvements in the mother’s situation were not sufficient to justify maintaining the child in limbo in hopes that the mother could, at some point in the indefinite future, provide an adequate home for C.J. See id. at 91, 558 S.E.2d 62.

        There was also clear and convincing evidence that the continued deprivation would cause serious harm to the child. The same evidence discussed above was sufficient for the court to find that continued deprivation would cause serious mental and emotional harm to C.J. In the Interest of A.G., supra. “[A] parent’s failure to take the steps necessary to reunite with the child, and the child’s need for a stable home are factors which the court should consider in finding that the child would suffer serious harm from continued deprivation.” In the Interest of T.L., supra. Here, the evidence was that C.J. had not lived with her mother since the age of two and had visited with the mother only sporadically since that time. C.J. had bonded with her foster parents, called them “mother” and “daddy,” had overcome past problems due to her anxiety over her lack of a stable and secure home, and the foster parents wished to adopt her. Accordingly, this was sufficient for the juvenile court to find that continued deprivation would cause harm to the child. See In the Interest of J.W.M., 273 Ga.App. 20, 23, 614 S.E.2d 163 (2005).

        Finally, the evidence was also sufficient to support the juvenile court’s determination under OCGA § 15-11-94(a) that, there being clear and convincing evidence of parental misconduct or inability, termination of appellant’s parental rights was in the best interest of the child, considering the child’s physical, mental, emotional, and moral needs, and the child’s need for a secure and stable home. The same factors which showed the existence of parental misconduct or inability also supported the finding that termination of appellant’s parental rights was in the child’s best interest. In the Interest of J.W.M., supra at 24, 614 S.E.2d 163. Here, the court considered that C.J. was happy in her foster home, was adjusting well at school, and the foster parents wished to adopt her. This evidence was sufficient.

        2. The mother also argues that the juvenile court erred in qualifying a witness as an expert when counsel laid no foundation and did not tender her as an expert. The witness in question was Jean Hogan, C.J.’s elementary school counselor. The record shows that Hogan was a licensed professional counselor. Further, as the Department points out, the mother never objected to Hogan’s qualification as an expert witness. The mother did make a hearsay objection to Hogan’s testimony, but has not raised that issue on appeal. Accordingly, this enumeration presents nothing for our review. See In the Interest of K. W., 262 Ga.App. 744, 748, 586 S.E.2d 423 (2003) (Where parent failed to raise issue in trial court, we will not address it for the first time on appeal.).

        Judgment affirmed.

        BARNES and BERNES, JJ., concur.

—————

Notes:

1. The father is not a party to this appeal.

—————

Mar 8 15

Repost (12/6/11 on Habeas Corpus actions)

by merlin

This is directly relevant to a matter I am researching at the moment.

______________________________________________________

The legal grounds for attacking a criminal conviction following an unappealed plea of guilt are limited, and the absolute last resort that a person has available to them is to attack the plea by way of a Petition for the Issuance of a Writ of Habeas Corpus.  This is not the method of choice for attacking a conviction, and is only available when other resorts (the obvious one being appeal of the conviction) cannot be used – such as the expiration of the time to appeal.

The writ is a fundamental right, and the rules that govern its use have been approximately consistent in Georgia jurisprudence for some time.  “A discharge under a writ of habeas corpus, after a plea of guilty by one accused of crime, cannot be granted except in cases where the judgment is absolutely void, for the reason that the function of the writ in criminal cases is not to test the truth of any fact essential to the establishment of guilt, but only to discharge one convicted of crime where the judgment is wholly void” (emphasis supplied).  Grammer v. Balkcom, 214 Ga. 691, 692 (Ga. Sup. Ct. 1959).  According to that case – which is still the prevailing interpretation of the law over half a century later – the writ can’t be used as a substitute for the withdrawal of a guilty plea (as when a person changes their mind and wants a trial, instead).  It isn’t a substitute for an appeal, as where the terms of the sentence are illegal or otherwise improper, or there is a legal defect that requires the judgment be overturned.  It is only there as a way of correcting unlawful entry.  In the case for which I am researching this issue, the question is the competency of the lawyer to represent the client.

The actual test for this particular issue – whether the attorney defending the person was sufficiently competent to represent them under the law or not – is drawn from the 11th Circuit (federal) case of McCoy v. Newsome, 953 F.2d 1252 (11 Cir. 1992).  In looking at potential grounds for the issuance of the writ, the case talked about witnesses who the Defendant claimed provided him with an alibi, but who he says his counsel did not contact.  His counsel said that he did contact the people named, but that the evidence that they proposed to testify to did not support the alibi the Defendant chose to present.  Similar to the matter in question, the decision to call the person nonetheless involved the basic rule that the factfinder is the ultimate arbiter of the credibility of the witness, and the attorney can make a conscious choice regarding calling this person as a witness.  The standard the case set to evaluate this decision is whether or not it was “clearly erroneous”.

That case sets a standard for evaluation of the representation itself, in terms of any allegations of ineffective assistance of counsel, as a question of the “totality of the circumstances”.  One individual aspect might be subjectively poor, but if the overall effect was to the person’s benefit or credit, the conviction will be upheld.

Mar 2 15

Civil Discovery is Applicable to Petitions for Removal from the Sex Offender Registry

by merlin

A notice, by the way – the information I post, unless it specifies otherwise, is applicable only to Georgia.

Civil Discovery methods – including Interrogatories, Requests to Admit, and Notices to Produce – should technically be available in Petitions for Removal from the Sex Offender Registry.  It shouldn’t matter if the Discovery issues are being handled on the State’s end by criminal practitioners – they are still going to have to comply with the ordinary civil Discovery tools, much like a pro se Defendant who doesn’t do such things professionally.

In the case law, inclusion on the Sex Offender Registry is considered a “collateral consequence” of pleading guilty to or being found guilty of an act of a indecent nature with a child.  “Child” refers to anyone fifteen and under in Georgia, according to Section 39-1-1 of the Official Code of Georgia.  For your reference, that section is below:

“(a) The age of legal majority in this state is 18 years; until that age all persons are minors.

(b) Nothing in this Code section shall be construed automatically to render an individual a resident of this state when that individual is in the state for the purpose of attending school. In the case of such individual, his residence will be considered to be the state in which his parents reside if under the laws of that state the individual would still be considered a minor and he is incapable of proving his emancipation.”

Because registry is a “collateral consequence” whose continued applicability is being questioned, the action is, therefore, civil in nature.  According to the Law Dictionary, an online resource found at http://thelawdictionary.org/civil-action/, a “civil action” is “A personal action which is instituted to compel payment, or the doing some other thing which is purely civil.”

As much as I loathe using Wikipedia as a source, that engine describes “collateral consquences” as “…the additional civil state penalties, mandated by statute, that attach to criminal convictions. They are not part of the direct consequences of criminal conviction, such as incarceration, fines, and/or probation. They are the further civil actions by the state that are triggered as a consequence of the conviction.” (emphasis supplied).  Because inclusion on the Registry is a civil consequence of a criminal conviction, it necessarily follows that a petition for removal from the Registry is a civil remedy.  As such, it would be governed by Section 9-11-81.

Section 9-11-81 of the Official Code of Georgia is authority for the idea that the Civil Practice Act provisions (such as Discovery, and attorney’s fees) apply to all civil actions unless specifically excluded. Inclusion on the sex offender registry is a collateral consequence of a qualifying sex- or kidnapping-based conviction, and it is NOT a punitive measure, but instead a “public safety” measure.  That section is below:

“This chapter shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of this chapter governing the sufficiency of pleadings, defenses, amendments, counterclaims, cross-claims, third-party practice, joinder of parties and causes, making parties, discovery and depositions, interpleader, intervention, evidence, motions, summary judgment, relief from judgments, and the effect of judgments shall apply to all such proceedings.” (emphasis supplied).

There is no resource that says that the Civil Practice Act – in its entirety – is NOT applicable to petitions for removal from the sex offender registry, and there is specific authority discussing the proper method to be used for statutory interpretation when dealing with sex offense cases.

Specifically, Clark v. State, 328 Ga.App. 268, 761 S.E.2d 826, was a 2014 Court of Appeals case that found a Defendant’s sentence to be incorrect, since it chose to give him 20 years’ incarceration instead of the split sentence of incarceration and probation mandated by the statute. It talks about the proper sentencing mechanisms in the Sex Offender Act.  However, more importantly for our purposes, it discusses statutory interpretation and surplusage, which tools (when applied to this particular situation, yield the result I have just described).  The case is below:

Kirvin Clark pro se.

Robert Nicholas Peterkin, Peter J. Skandalakis, for Appellee.

ELLINGTON, Presiding Judge.
In March 2012, Kirvin Clark pled guilty to one count of child molestation in the Superior Court of Meriwether County, and the trial court sentenced him to twenty years to serve in prison. Six months later, Clark filed a motion to correct an illegal and/or void sentence, contending, inter alia, that his sentence violated OCGA §§ 16–6–4(b)(1) and 17–10–6.2(b). 1 The trial court denied the motion based upon its conclusion that the sentence was not illegal or void because it fell within the sentence allowable under OCGA § 16–6–4(b)(1). Clark appeals, and, for the reasons explained below, we vacate his sentence and remand this case to the trial court for resentencing.

1. Clark contends that the trial court erred in concluding that his sentence was not illegal or void under OCGA §§ 16–6–4(b)(1) and 17–10–6.2(b).2 We agree.

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

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

(Emphasis supplied.)

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

Further, even if judicial construction of this statute had been authorized, it is axiomatic that courts must strictly interpret penal statutes against the State and, more importantly, that courts are prohibited from interpreting a statute in a manner that renders some of the language superfluous, ineffectual, or meaningless. State v. Hammonds, 325 Ga.App. 815, 818, 755 S.E.2d 214 (2014); see Jackson v. State, 299 Ga.App. 356, 357, 360(4), 683 S.E.2d 60 (2009) (Courts must “give each part of the statute meaning and avoid constructions that make some language mere surplusage. All parts of a statute should be harmonized and given sensible and intelligent effect, because it is not presumed that the legislature intended to enact meaningless language.”) (citation and punctuation omitted). Thus, an interpretation that would allow a court to sentence a defendant to twenty years of imprisonment without probation for a first child molestation conviction would necessarily—and improperly—render the statute’s requirement of a “split sentence” meaningless.

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

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

3. Clark also contends that the trial court erred in not considering whether he was eligible for a deviation from the minimum term of imprisonment, pursuant to subsection (c)(1) of OCGA § 17–10–6.2.8

The State charged Clark with committing child molestation by “touching and rubbing [the victim’s] butt[.]” During the guilty plea hearing, the only relevant fact proffered by the State to support this specific charge was that the victim reported that the defendant “touched her on the butt” while they were at a Meriwether County “drug house.” Although Clark had driven the victim and two of her siblings from Union City to Meriwether County that evening, Clark did not commit the charged offense until later, while they were at the drug house. Therefore, the offense itself did not involve any transportation of the victim or any of the other factors listed in OCGA § 17–10–6.2(c)(1) that would prohibit the trial court from sentencing Clark under that subsection. See generally Hedden v. State, 288 Ga. 871, 873–876, 708 S.E.2d 287 (2011).

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

Thus, based upon the record before us, we conclude that the trial court failed to exercise its discretion to consider whether to deviate from the mandatory minimum sentence, pursuant to OCGA § 17–10–6.2(c)(1), when sentencing Clark. See Tindell v. State, 314 Ga.App. 91, 91–92, 722 S.E.2d 921 (2012) (The defendant entered a negotiated guilty plea with a recommended sentence of fifteen years, five to serve, and the trial court sentenced him accordingly, while concluding that it had no discretion under OCGA § 17–10–6.2(c)(1) to sentence him to less than the mandatory minimum sentence for the offense. This Court found that the trial court had erroneously failed to exercise its discretion under that statute, and it vacated the sentence and remanded the case for resentencing.); see also Holland v. State, 310 Ga.App. 623, 629–630(5), 714 S.E.2d 126 (2011). Consequently, this error provides an independent basis for vacating Clark’s sentence and remanding this case for resentencing. Tindell v. State, 314 Ga.App. at 92, 722 S.E.2d 921. Although, upon remand, the trial court may decide not to sentence Clark to less than the mandatory minimum sentence under OCGA § 17–10–6.2(c)(1), “let the exercise of the trial court’s discretion in the imposition of [its] sentence be cast upon the record.” Bradshaw v. State, 237 Ga.App. 627, 630(2), 516 S.E.2d 333 (1999) (This Court vacated the defendant’s sentence and remanded the case after finding that the trial court had erroneously concluded that it had no discretion in sentencing the defendant.). See also Hedden v. State, 288 Ga. at 873–876, 708 S.E.2d 287 (The Supreme Court vacated the defendant’s sentence and remanded the case after finding that the trial court had erroneously concluded that it had no discretion, under OCGA § 17–10–6.2(c), to deviate from the mandatory minimum sentencing provisions set forth in OCGA § 17–10–6.2(b).); Haynes v. State, 317 Ga.App. 400, 402(3), 731 S.E.2d 83 (2012) (accord); Hatcher v. State, 314 Ga.App. 836, 839(2), 726 S.E.2d 117 (2012) (accord).

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

Sentence vacated, and case remanded for resentencing.

PHIPPS, C.J., concurs.
McMILLIAN, J., concurs in Divisions 1, 2, and 4, and in the judgment.

——–

Notes:

1. “[W]here a sentence is void, the court may resentence the defendant at any time. A sentence is void if the court imposes punishment that the law does not allow.” (Citation and punctuation omitted.) Marshall v. State, 294 Ga.App. 282, 282–283, 668 S.E.2d 892 (2008).

2. “[T]he interpretation of a statute is a question of law, which is reviewed de novo on appeal. Because the trial court’s ruling on a legal question is not due any deference, we apply the plain legal error standard of review.” (Citation and punctuation omitted.) State v. Hammonds, 325 Ga.App. 815, 755 S.E.2d 214 (2014).

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

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

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

6. Although OCGA § 17–10–6.2(b) does not expressly define the term “split sentence,” its meaning is clear when read in context with the entire provision. See Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 752(1), 251 S.E.2d 250 (1978) (“It is a general principle of statutory law that a statute must be definite and certain in its provisions to be valid, and when it is so vague and indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application, it violates the first essential of due process of law. [However, even if] a statute does not undertake to define each of the words contained therein, this will not automatically render the statute vague, indefinite or uncertain in meaning since[ ][t]he ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject matter[.]”) (citations and punctuation omitted); see also State v. Hammonds, 325 Ga.App. at 817, 755 S.E.2d 214 (“[I]t is an elementary rule of statutory construction that, absent clear evidence to the contrary, words should be assigned their ordinary, logical, and common meaning.”) (citation and punctuation omitted).

7. See Division 2, infra.

8. That subsection provides, in relevant part, as follows:

In the court’s discretion, the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum or provided that:

(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of [those] offenses[;]

(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

(C) The court has not found evidence of a relevant similar transaction;

(D) The victim did not suffer any intentional physical harm during the commission of the offense;

(E) The offense did not involve the transportation of the victim; and

(F) The victim was not physically restrained during the commission of the offense.

OCGA § 17–10–6.2(c)(1). See also OCGA § 17–10–6.2(c)(2) (“If the court deviates in sentencing pursuant to [OCGA § 17–10–6.2(c)(1)], the judge shall issue a written order setting forth the judge’s reasons. Any such order shall be appealable by the defendant pursuant to Code Section 5–6–34, or by the State of Georgia pursuant to Code Section 5–7–1, unless the sentence imposed was pursuant to an agreement by the prosecuting attorney and the defendant.”).

Feb 28 15

ABA February 2015 Continuing Legal Education Notes

by merlin

This webinar covered Miranda statements, which was especially useful:

 

Mirandized Statements: Successfully Navigating the Legal and Psychological Issues

ABA CLE Webcast Notes – February 2015

Amy Meyerson (Attorney), Eric Drogon (Attorney and Harvard Psychiatrist), Carol Spaderna (Aberstwyth University law and Psychologist)

What’s the big deal?

  • To paraphrase Chris Rock – police can have plenty of evidence, but they want the confession.
  • It reduces “reasonable doubt”

Named for Ernesto Miranda (in 1963, confessed)

There are 10 Key Myths and Misconceptions:

  1. They are uniform warnings (if info entirely comes from TV and media ,then this is prevalent – Miranda only provided for “clear and unequivocal words OR THEIR EQUIVALENT” to get the point across)
  2. They are brief and easily-understood (there is a range in length and difficulty of these warnings)
  3. Miranda warnings for juveniles are simpler than regular advisements (NOT TRUE – 300 different versions, including explaining the role of the judge, etc.; for children, average required is a 9th grade reading level, versus an 8th grade reading level for adult warnings). There is a great checklist in the materials for attorneys to use when they represent juveniles and a Miranda warning becomes an issue (as to what impact the warning might have in the case, and whether an evaluation is needed)(The idea is to get valid waivers)
  4. Spanish language Miranda warnings are NOT accurate and complete translations!!!!!
  5. “Practice makes perfect” with Miranda warnings (idea that a person who has been repeatedly arrested understands the warnings by that point)
  • In fact, the OPPOSITE is true – folks with 50+ past arrests tended to have no better comprehension than those with very few arrests
  1. Defendants have an accurate appraisal of their Miranda knowledge (lack of knowledge about their own lack of knowledge!!!!!!).
  2. Validity of Miranda is a moot point because of other incriminating evidence (50% of convictions hinge on a confession, though)! Again – CONFESSION
  3. Police deception is impermissible just prior to Miranda

CONTRARY – Police are allowed to lie.

  1. Defendants with psychiatric histories provide invalid Miranda This is like thinking a person who is voluntarily intoxicated can’t be found responsible for a crime.
  2. Waiver decisions are based on solid decision-making (contrarily, Defendants tend to abandon that solid reasoning when they are being questioned).

  • Folks don’t even remember everything – only 73% of people polled could recall being advised about their right to silence!!!!
  • About 20% actually believe an unsigned waiver is protection!
  • 55% of juvenile defendants think they will have to pay for their defense no matter what.
  • MOST of them (WRONGLY) believe that if they have started talking, they have permanently waived their right to silence!!!

 

Berghuis (2010):      Defendant must invoke his right to remain silent AND he loses that right if he answers questions (but, as noted above, can AFFIRMATIVELY REINVOKE).

 

Commonwealth v. Jackson, 432 Mass. 82 (Massachusetts, 2000):   State has to affirmatively prove waiver was voluntary

What do experts assess?

Mental health experts:

  • Neurological examination
  • Brain health imaging
  • Neuropsychological testing (ex. Weschler Memory Scale, etc.)
  • Communication/Academic Scales Screening (ability to understand the written word; at what level are they functioning; how does the individual actually work with language?)
  • Various intelligence tests (ex. Stanford-Binet, etc.)
  • There ARE personality/intelligence tests for juveniles!

There IS a test that answers level of comprehension of Miranda rights.

  • Comprehension of Miranda rights – tested by IAU (grandparent of other tests); CMR (Comprehension of Miranda Rights test); CMR-R – Recognition component; CMV – Comprehension of Miranda Vocabulary; test to determine detainee understanding of rights in INTERROGRATION
  • The MRCI is a thorough test, appears (takes into account current innovations since the IAU)
  • SAMA (Standardized Assessment of Miranda Abilities) – includes multiple different kinds of tests, such as reasoning skills, etc.

Experts

Remember:         Expert needs to review the ACTUAL material;

Remember:         The completeness of the expert’s review is CRITICAL (Did you review this source?  How about that source?)

Ethical codes of psychiatry are implicated by incompetence.

Got to make sure the expert actually had direct, hands-on experience with the person themselves and with the administration of the tests themselves (manner they should be administered, etc.).

  • Did they check only ONE aspect of Miranda warning, or did they ask about EACH right it informs about?
  • Must be BOTH testing AND interview
  • Make sure expert SCORED the tests given accurately (other side did the same)

In Miranda, they expressly allowed variation of language, but that equivalents are fine.

Stating “No” in response to the idea that you don’t understand the Miranda rights, it doesn’t necessarily bring the inquiry to a halt; all it really does is add a level of inquiry to the trial.

In some jurisdictions, State insists on sending Defendant to State hospital before defense is permitted to have their experts give tests.

For it to be best:

To get at the truth, must have a warning that is:

  1. Delivered both in writing and orally;
  2. Delivered in most basic language that conveys components;
  3. Stands up under inquiry (admissibility is the goal); and
  4. Has a follow-up to ensure person understands it.

Expert crosses a line that isn’t helpful when they start opining on whether the police “did it right”.  This exceeds their mandate, and they aren’t necessarily qualified.

 

 

 

 

 

Feb 27 15

ABA January 2015 Continuing Education Webinar Notes

by merlin

These notes are in addition to the program materials themselves.

The Wild World of Cannabis

ABA CLE Webcast Notes – Originally broadcast in January 2015

 

 

John Minan (Associate Professor of Law at University of San Diego)

Federal Law (Classification as Schedule I drug) preempts State standards where inconsistent, but State doesn’t enforce if it doesn’t want to.

  • 2009, US Attorneys told not to prosecute State persons in compliance with medical marijuana
  • 2013 memo – States with sufficient mechanisms won’t be interfered with, but must avoid spillover into other States
  • No med marijuana in the future as of that memo

Preemption:  Only happens if there is a CLEAR CONFLICT.  Nebraska and Utah suit asks Supreme Court to use preemption against Colorado for non-medical

Scott Rhodes – Jennings Strauss (on Professionalism in Cannabis Cases)

Dilemma – can lawyers ethically advise pot clients under ABA Model Rules

State response:

            Lawyers advise client fully (State law OK but conflict with federal law); general trend follows this (AZ) approach

North Dakota – it’s actually per se unethical for attorneys to even use cannabis medically.  Colorado approach – exactly opposite (no connection between legal representation and personal use, per se).  In 6/13, extended from medical to recreational use in CO (under consideration in Washington and Nevada).

Hilary Bricken (Harris Moure) – Representing Marijuana Business

Recreational versus Medical Marijuana – Laws, regulations, permissible business entities (eligibility AND business structure) differ between the two

CA versus WA – CA must be a non-profit cooperative or not allowed

 

Be aware of idea of PROSECUTORIAL DISCRETION (affects federal memos)

 

Raids versus “Landlord Letters” – latter is a “softer touch”, gives 30 days to move out

Federal Conflict

  • Banking
  • insurance availability
  • bankruptcy
  • taxes

Have to make sure that fee agreement expressly states the conflict with federal law and expressly addresses idea that you can only advise on how to comply with State law – can only represent them SO MUCH and SO FAR.

Sean O’Connor (University of Washington School of Law) – Food and Drug Law

3 Major Cannabis Products:

  • Food
  • Drug
  • Dietary Supplements

These laws came from:

  • “Filled Milk” scandals (early 20th Century)
  • Patent Medicine cases (snake oil medicines)
  • Thalidomide cases

3 Major Statutes:

  • Food, Drug, and Cosmetics Act
  • Public Health Act
  • Dietary Supplement Health and Education Act

Questions of PURITY AND POTENCY, and also questions of SAFETY AND EFFICACY (latter includes idea that something else achieves same effect)

  • Have to go through approval process for Foods, also for Drugs, as well as obtaining “NDA” (“New Drug Approval”) – many years and lots of $
  • FDA has been issuing warning letters, but FEW

Cannabis as a DIETARY SUPPLEMENT:

  • Requires only PURITY and POTENCY
  • Relies on CUSTOMER input, rather than established medical claims
  • St. John’s Wort

Tsan Abramson (Cobalt Law) – Trademark/Trade Dress Issues

Terms can be:

  • FANCIFUL/ARBITRARY
  • SUGGESTIVE
  • DESCRIPTIVE
  • GENERIC

  • Products containing THC are still federally illegal, BUT
  • Can seek federal mark protection for products and services that SUPPORT the brand.

DON’T:

  • Seek registration for non-cannabis product and try to use protection for cannabis products of same name
  • Will lose the State protection (ex. Colorado)

Henry Wykowski (Wykowski and Associates) – Tax Issues

  • IRS § 280E: Expressly PUNITIVELY disallows ordinary and necessary business expenses for sale of cannabis (passed in 1982 – War on Drugs)

Champ decision:      CAN deduct for cost of goods sold (cannabis industry)

What if they sell non-cannabis goods (i.e. t-shirts)? They can deduct that; need to develop a formula allocating the two

  • Have a defensible 280E formula (assume they WILL be audited)
  • If audited – ensure they IMMEDIATELY get help on it!!!!!!
    • Don’t let client do it themselves, use an attorney (for privilege; no such privilege for accountants)
    • Advise client – UNDER NO CIRCUMSTANCES respond to letter themselves

Audit:

            Looking for SUBSTANTIATION OF EXPENSES (so keep records)

  • Look at gross sales
  • Look at cost of purchases
  • Look at how 280E allocation done

Julie Anderson Hill (University of Alabama School of Law) – Banks and Federalism

  • Banks often don’t even service the ATMs used in cannabis stores
  • Blame the federal controlled substances act (Anti-money laundering laws)
  • FDIC – “reputation risk”

Questions remain – does the UCC apply (Arts. 2 and 9, especially), and what about BANKRUPTCY?

Dwight Merriam (Robinson+Cole) – Real Estate/Land Use Issues

Even if Cannabis were downgraded to Schedule II regulation (like morphine or codeine, the real estate issues would remain).

  • federal and State crime free/drug free zones, school zones, etc.
  • “Drug Free/Crime Free addendum to leases, prohibiting State-legal use of marijuana since it is federally illegal
  • Landlords often include provision in lease prohibiting growing or use EXPLICITLY
  • Insurance requirements? Electricity requirements?  Mold?  Trespassing?
  • No duty to allow tenant under fair housing act, ADA, etc.

See Los Angeles regulations for most comprehensive

Katharine Liao (DLA Piper) – Employment Law

What about medically-prescribed marijuana use?  20 States allow medical, 4 States allow recreation (now Alaska and DC, also).

  • However, 19 States have express statutes saying that employers don’t have to accommodate use/possession during working hours
  • 4 States have express laws allowing employees to be disciplined, and another 4 have case law

Positive test alone:

  • Not enough in DELAWARE, ARIZONA, MINNESOTA
  • Enough (Zero Tolerance) in CALIFORNIA, MONTANA, OREGON, WASHINGTON
  • Colorado – Coats v. Dish Network, LLC – decision still pending (no evidence he ever used while working; quadriplegic; medically-prescribed
  • New Mexico – carrier must reimburse for med. marijuana costs
  • Michigan – employer can terminate but employee gets unemployment

Is there a disability?

  • Generally, employers must provide “reasonable accommodation”
  • Generally, underlying medical problem being treated by med marijuana will require accommodation

Employers need to continually monitor and update employee drug policies.

  • Courts have consistently been very protective of employers terminating over WORKPLACE SAFETY ISSUES
Feb 18 15

Link to SCOTUS Search

by merlin

After an ice storm trapped us at home with no power or Internet, this site is back up and I may continue my work and my research.

This is a link to a new service (still in Beta mode) that allows a user to search oral arguments before the United States Supreme Court for the past decade+:

http://www.scotussearch.com/

Feb 15 15

Deviating From Georgia Presumptive Child Support (In General)

by merlin

When determining child support due (and in every Georgia divorce, custody, or child-oriented case, even NO child support due must be affirmatively recorded), there have to be certain findings upholding the amount required.  It may be that no reliable evidence of income can be shown, as when a person is unemployed, or maybe the parties’ dispute centers around the evidence that one party has of the other’s ability to earn far more money than they have in the past, and proof exists that they can and should be earning more.  Whatever the situation, the Court has to make factual findings to uphold its decision, as required by Section 19-6-15(E) of the Official Code of Georgia.  That section reads as follows, requiring the Court to:

“(E) Include written findings of fact as to whether one or more of the deviations allowed under this Code section are applicable, and if one or more such deviations are applicable as determined by the court or the jury, the written findings of fact shall further set forth:

(i) The reasons the court or the jury deviated from the presumptive amount of child support;

(ii) The amount of child support that would have been required under this Code section if the presumptive amount of child support had not been rebutted; and

(iii) A finding that states how the court’s or the jury’s application of the child support guidelines would be unjust or inappropriate considering the relative ability of each parent to provide support and how the best interest of the child who is subject to the child support determination is served by deviation from the presumptive amount of child support;”

___________________________________________________

Sometimes, the situation has been “worked out” by the Court with the parties, or between attorneys for one or both sides, and the arrangement may genuinely be believed by the parties to be in their best interests, or by the Court to be in the parties’ best interests.  IT DOESN’T MATTER.  The findings of fact referred to above still need to be made; what if the case should be appealed?

If the case is appealed and these findings are not present in the record or the pleadings, then the carefully-crafted decision will fall apart like a stack of cards.  This was exactly the situation in the 2013 Supreme Court of Georgia case, Parker v. Parker, 293 Ga. 300, 745 S.E.2d 645:

William J. Camp, Westmoreland Patterson Moseley & Hinson, Warner Robins, for appellants.

T. Rabb Wilkerson III, Warner Robins, for appellee.

BENHAM, Justice.

        This Court granted the application for discretionary review in this case arising out of an action filed by JoBeth Parker, Appellant, a resident of Georgia, against her then-husband, James Timothy Parker, Appellee, a nonresident, to establish child support pursuant to the Uniform Interstate Family Support Act (UIFSA), OCGA § 19–11–100, et. seq.1 After conducting an evidentiary hearing, the trial court entered a final order of custody and child support. Appellant raises several issues relating to the child support award.

         1. The initial question for review is whether this is an alimony case over which this Court has appellate jurisdiction pursuant to Georgia Constitution of 1983, Art. VI, Sec. IV, Para. III(6). The parties to this appeal were married at the time of the proceedings below. Divorce proceedings were pending in both Alaska and Florida but Appellant alleged that neither of those states had jurisdiction to resolve child custody and child support issues given the residency of the parties and the two children of the marriage. 2 Accordingly, Appellant filed the petition in Georgia and the trial court found it had jurisdiction over this matter.

        In Spurlock v. Dept. of Human Resources, 286 Ga. 512, 513(1), 690 S.E.2d 378 (2010), a case involving a Department of Human Resources review of a child support order under OCGA § 19–11–12, this Court discussed the relationship between alimony and child support, noting that “an award of child support always constitutes [293 Ga. 301]alimony if it is made in a divorce decree proceeding, but it may or may not represent alimony outside the divorce context.” In Spurlock, this Court held that “we have jurisdiction over a case involving an original claim for child support which arose in either a divorce or alimony proceeding [as well as] actions for modification of alimony … for support of … a child, so long as the original award arose from a divorce or alimony proceeding.” Id. at 513, 690 S.E.2d 378. Thus, the Court concluded we have jurisdiction over proceedings for modification of a child support award made in a prior divorce or alimony action regardless of the code section under which the modification is pursued. By comparison, in O’Quinn v. O’Quinn, 217 Ga. 431, 122 S.E.2d 925 (1961), this Court found it did not have jurisdiction over a case that involved an original petition for child support brought under what is now the UIFSA 3 because we concluded it was not a divorce or alimony case that would bring the matter within the jurisdiction of this Court. The petitioner in O’Quinn, however, sought the establishment of child support after the parties were already divorced, not the modification of a child support order entered in a divorce or alimony proceeding. Without making that distinction, this Court later cited O’Quinn for the proposition that child support actions brought under what is now the UIFSA “are normally within the jurisdiction of the Court of Appeals.” Brown v. Georgia Dept. of Human Resources, 263 Ga. 53, 54, 428 S.E.2d 81 (1993) (assuming jurisdiction over a case in which the Georgia Department of Human Resources filed a petition on behalf of a parent seeking modification of a previously entered child support award as well as payment of arrearages, in order to address confusion in the law regarding collection of child support arrearages).

         The case now before the Court involves an original petition for child support that is not made within a divorce proceeding. The parties were, however, at the time the petition was filed, married and not divorced. Consequently, this case is distinguishable from Kennedy v. Kennedy, 309 Ga.App. 590, 711 S.E.2d 103 (2011), in which the Court of Appeals, and not this Court, had jurisdiction over an original petition for award of child custody and child support in a case involving parents who had already obtained a final divorce decree in [293 Ga. 302]Alabama that did not address the issues of custody and support because their child no longer lived in that state. “Child support is a form of alimony.” Dean v. Dean, 289 Ga. 664, 665, n. 2, 715 S.E.2d 72 (2011). Thus, the factual circumstances of this case provide an example of an award of child support that constitutes alimony even though it is pursued outside the divorce context, as referenced in Spurlock, supra. Accordingly, this Court has jurisdiction over this appeal because it is an alimony case.

        2. Appellant asserts the trial court erred in including in its child support calculations certain nonspecific deviations from the statutory presumptive child support amount that would otherwise apply in this case and in failing to consider the effect of boarding school living expenses upon the allocation of child support between the parties for the older child who was enrolled at boarding school. The record reflects both parties were career commissioned officers in the United States Air Force whose military duties often required them to be geographically separated. At the time Appellant filed this proceeding in 2011, two different divorce proceedings were pending in two other states. Also at the time this proceeding was filed, the parties had enrolled their older, then 16–year–old, daughter in a boarding school in New Jersey and the younger, then seven-year-old, daughter was living with Appellant in Georgia and enrolled in a private day school. Appellee had retired from the military and was a resident of Alaska. The trial court awarded joint legal custody of both children, awarded primary physical custody of the older child to Appellee, in accordance with that child’s stated preference, and awarded primary physical custody of the younger child to Appellant pursuant to a finding that such an arrangement was in the best interest of the child.

        As required by OCGA § 19–6–15( l ) for split parenting arrangements, the trial court prepared a child support worksheet for each child but it appears to be undisputed that the worksheets were not provided to the parties or their attorneys until the day following the hearing on this matter and that the court invited each party to review the worksheets in advance of entry of the final award. Each worksheet reflects that Appellant’s income is 42.22% of the parties’ combined income and that Appellee’s income is 57.78% of the combined income. Tuition, room, and board for the older child’s boarding school was shown on the worksheet to be approximately $44,000 per year (although documentary evidence presented at the hearing reflects that, after credit for a tuition grant, the charges totaled $41,770) and, at the hearing, the judge announced Appellant would be required to pay half, but in any case, no less than $22,000 per year, “toward tuition and living expenses” but no other child support for the older child under the child support guidelines. The judge also announced at the hearing that Appellee would not be required to pay any tuition for the younger child, which was shown to be $5,400 (although evidence was presented showing the actual tuition was $4,200 after application of a tuition deduction) and Appellee’s zero dollar responsibility for the extraordinary educational expenses of the younger child is reflected on that child’s child support worksheet. Both worksheets provide nonspecific deviations by which the trial court apparently intended to “zero out” the remaining child support obligations of the parties such that Appellant would pay Appellee no additional child support with respect to the older child in his custody and Appellee would pay Appellant no child support with respect to the younger child in her custody. The final order, however, states that each party shall share equal financial responsibility for the private school tuition of each child with Appellee to pay no less than $22,000 for the older child’s tuition and Appellee to pay half of the younger child’s tuition. Appellant acknowledges she agreed to pay half of the older child’s boarding school tuition but she sought “guideline child support” for the younger child, including that child’s private school expenses. Before the final order was entered, Appellant submitted alternative worksheets for the court’s consideration and filed a motion for reconsideration of the ruling announced at the conclusion of the hearing. She argued that if the award were entered pursuant to the worksheets the court prepared and submitted to the parties for review after the hearing, the award would place a significantly heavier burden upon Appellant in her obligations to support both children, would provide a windfall to the Appellee, and would deny the younger child of the support that should be paid by Appellee. The motion was denied and the court entered the final order.

        In her first enumeration of error, Appellant asserts the trial court abused its discretion by granting a $1,503.05 nonspecific deviation in favor of Appellee with respect to his child support obligation to the younger child, thus bringing his support obligation to zero, when that deviation does not serve the best interest of that child. The Final Order of Custody and Child Support provides that neither party shall owe child support to the other and incorporates by reference the child support worksheet for each child. OCGA § 19–6–15 provides a process for calculating child support which, pursuant to subsection (m), requires the necessary information used in that calculation to be recorded on the child support worksheet. Deviations from the presumptive amount of child support, as provided by OCGA § 19–6–15(i), are to be set out in Schedule E of the worksheet. OCGA § 19–6–15(b)(8). If the factfinder deviates from the presumptive amount of child support, certain specific findings of fact must be set forth in the child support order, including the reasons for the deviation, the amount of child support that would have been required if no deviation had been applied, how the application of the presumptive amount of child support would be unjust or inappropriate considering the relative ability of each parent to provide support, and how the best interest of the child who is the subject of the child support determination is served by a deviation from the presumptive amount. See OCGA § 19–6–15(c)(2)(E) and (i)(1)(B). In justifying the special deviation applied to the younger child in this case, the judge responded to special interrogatories on Line 14 of Schedule E of the child support worksheet as follows:

        (B) Would the presumptive amount be unjust or inappropriate? Explain. [Answer:] Yes; [Appellee non-custodial parent] is paying for expenses of older child which are in addition to the half of her tuition.

        (C) Would deviation serve the best interests of the children for whom support is being determined? Explain. [Answer:] Yes; will result in funds being available for travel and other expenses for both children.

        (D) Would deviation seriously impair the ability of the CUSTODIAL parent or NON–PARENT Custodian to maintain minimally adequate housing, food and clothing for the children being supported by the order and to provide other basic necessities? Explain. [Answer:] No; both parents have sufficient funds to provide for basic necessities.

In this case, the child support worksheet was incorporated into the final order and thus the order reflects the statutorily required findings to support the deviation. Compare Walls v. Walls, 291 Ga. 757(6), 732 S.E.2d 407 (2012) (reversing and remanding for redetermination of child support where the order recited that the reasons for deviations were set forth in Schedule E of the child support worksheet but the spaces for those findings were left blank). Appellant, however, asserts the nonspecific deviation is erroneous as a matter of law in several respects.

         This Court has held that qualitative determinations regarding deviation from the presumptive amount of child support “are committed to the discretion of the court or jury. Accordingly, we review any findings based on disputed facts or witness credibility under the clearly erroneous standard, and we review the decision to deviate, or not to deviate, from the presumptive amount of child support under the abuse of discretion standard.” [293 Ga. 305]Black v. Black, 292 Ga. 691, 697(4)(a), 740 S.E.2d 613(2013) (citations and punctuation omitted). Among the disputes in Black was the court’s award of a deviation for visitation-related travel expenses to the non-custodial parent, which is enumerated as one of the permissible “Specific Deviations” in OCGA § 19–6–15(i)(2). This Court found that the trial court made sufficient findings that the deviation would leave the non-custodial parent with funds to cover interstate travel expenses for visitation with the children involved in the child support order, that the findings did not appear to be clearly erroneous, and thus the deviation could not be considered an abuse of discretion. Id.

        In this case, the court noted at the hearing the substantial visitation-related travel expenses for each child between Alaska and Georgia and the order requires each parent to bear that expense for the child not in that parent’s custody. Nevertheless, the child support worksheet for the younger child does not provide a specific deviation for travel expenses as permitted by OCGA § 19–6–15(b)(8)(F) and (i)(2)(F).4 Instead, one of the findings to justify the nonspecific deviation that effectively eliminated Appellee’s child support obligations to the younger child was that the deviation served the best interest of the “children for whom support is being determined” because it would “result in funds being available for travel and other expenses for both children.” Another of the findings to justify the nonspecific deviation in favor of Appellee was that the presumptive amount would be unjust or inappropriate because Appellee “is paying for expenses of older child … in addition to … half of her tuition.”

         Pursuant to OCGA § 19–6–165(i)(3), nonspecific deviations are those that “may be appropriate for reasons in addition to those established under this subsection when the court or the jury finds it is in the best interest of the child.” Relying upon this language, Appellant asserts that use of a nonspecific deviation is appropriate only when no specific deviation authorized by OCGA § 19–6–15(i)(2) reasonably applies. Pursuant to OCGA § 19–6–15(c)(1), the presumptive amount of child support provided by the Code section “may be increased or decreased according to the best interest of the child for whom support is being considered….” Relying upon this language, Appellant asserts the statute does not permit the granting of a deviation on the ground that it benefits and serves the best interest of a child other than the one who is the subject of the child support worksheet, even if that child is the sibling of the one entitled to support. Although separate worksheets are required for each child in [293 Ga. 306]a split parenting situation, the statute also requires the court to determine “other child support responsibilities for each parent.” See OCGA § 19–6–15( l )(5). Thus, we find no abuse of discretion in the trial court’s consideration of Appellee’s child support obligations to the older child in the child support award for the younger child. By noting Appellee’s obligation to pay expenses of the older child, including half of that child’s tuition, the trial court was obviously taking into consideration Appellee’s other child support obligations in determining what would be unjust or inappropriate for him to be required to pay in the way of support to the younger child. Although it appears to be the better practice not to include within nonspecific deviations factors that are set forth in the statutory list of specific deviations, we are not inclined to impose a hard-and-fast rule that factors such as significant visitation-related travel expenses cannot be considered as reasons for nonspecific deviations. This is particularly true where, as here, the child custody order involved a split parenting arrangement and a virtually identical justification for a nonspecific deviation was afforded Appellant, as the non-custodial parent of the older child. Likewise, we do not deem it to be an abuse of discretion for the trial court, in a split parenting arrangement, to offer reasons relating to child support obligations to a sibling in its findings of fact supporting nonspecific deviations.

         3. Appellant asserts the child support worksheets for both children contained erroneous facts, that the nonspecific deviations were thus erroneous, and that the worksheets, in any event, did not support the final order. The record supports this assertion of error. For example, the child support worksheets prepared by the court reflect, as noted above, overstatement of the private school tuition costs for each child.5 Both worksheets reflect yearly child care costs in the amount of $1,600 incurred by Appellant when no evidence was presented that Appellant incurred any child care costs for the older child and her domestic relations financial affidavit reflected total yearly child care costs in the amount of $1,480, presumably for the younger child who lived with her. Appellee’s financial affidavit reflected child care costs for non-school periods incurred by him, presumably primarily for the older child who lived with him when not in boarding school, in the total yearly amount of $3,000 but neither of the child support worksheets prepared by the court reflect any child care expenses were attributed to Appellee. The worksheets overstate the dental insurance premiums paid by the mother for each child because the total premium paid was entered on each child’s worksheet instead of one-half of the premium being attributable to each child. Finally, although the final order requires each party to pay half of each child’s private school tuition at the schools where they are currently enrolled (or, for Appellant, a minimum of $22,000 annually), the child support worksheet for the younger child reflects the entire amount of extraordinary educational expense is paid by Appellant and nothing is paid by Appellee. In sum, it appears that inaccurate factual data was plugged into the child support worksheets for the purpose of arriving at the pre-determined result the trial judge announced at the hearing—to “zero out” any child support obligations of the parties to each other.

         It is apparent from the hearing transcript that the trial court in this case attempted to accommodate the parties’ already established practice of devoting a significantly greater portion of the parents’ combined resources to pay for the education of the older child while also providing the younger child with private school education. The court went too far, however, in arriving at an expressed intent to award a zero dollar child support obligation and then fashioning the numbers to achieve that result. The guidelines set forth in OCGA § 19–6–15 provide a detailed scheme for determining the amount of child support to be awarded by the court and compliance with the statute’s terms is mandatory. See Stowell v. Huguenard, 288 Ga. 628, 706 S.E.2d 419 (2011). The intent of the guidelines is to have each parent contribute his or her pro rata share of child support unless deviations, as provided by law, are “supported by the required findings of fact and application of the best interest of the child standard.” OCGA § 19–6–15(b)(8). Here, it appears the trial court’s actions were comparable to making an award of child support outside the parameters of the child support worksheet in order to achieve a specific result, a practice that has been deemed reversible error. See Turner v. Turner, 285 Ga. 866, 684 S.E.2d 596 (2009)(reversing and remanding where, after calculating the amount of child support due from each parent, the order included a separate and special pro rata apportionment for the costs of extracurricular activities instead of including those expenses in the child support worksheet calculations); Johnson v. Ware, 313 Ga.App. 774, 723 S.E.2d 18 (2012) (reversing in part and remanding where the order included an award of tuition outside the overall calculation of child support). While the court in this case made the required findings to support the nonspecific deviations that were granted, they were seemingly result oriented and based on incorrect facts.

         Even though qualitative determinations of whether special circumstances exist to support deviations from the presumptive amount of child support are committed to the discretion of the court or jury (see Hamlin v. Ramey, 291 Ga.App. 222, 224–225(1), 661 S.E.2d 593 (2008)), quantitative calculations regarding the amount of the deviation require the child support worksheet to be populated with accurate facts and figures in order to determine the amount of the deviation. Once that amount is determined, the finder of fact must make findings and provide the reasons why the deviation is appropriate and in the best interest of the child. A deviation requires evidence that rebuts the presumptive amount of child support. See OCGA § 19–6–15(a)(10). As noted above, with respect to evidentiary issues, this court applies a clearly erroneous standard of review. Because the figures used in this case to “back out” the numbers to arrive at the pre-determined zero dollar child support obligation are unsupported by the evidence, we must reverse and remand the child support award. Upon remand, once factually accurate data is supplied to the child support worksheets to quantitatively support specific or nonspecific deviations, then the court, in its discretion, may make the required findings of fact, including how the best interest of the child who is the subject of the child support determination is served by the deviation, as required by OCGA § 9–6–15(c)(2)(E) and (i)(1) (B).

        In a separate enumeration of error Appellant asserts the court erred in failing to take into consideration the effect of the tuition discounts in its grant of deviations for extraordinary educational expenses, as required by OCGA § 19–6–15(i)(2)(J)(i)(I), and also erred in its order that Appellant pay half, but no less than $22,000, of these tuition expenses for the older child. Remand of the case for correction of factual inaccuracies in the child support worksheets serves to address this enumeration of error.

         4. Appellant asserts the trial court erred in failing to consider what she refers to as the “windfall” benefit to Appellee by requiring Appellant to pay half of the total costs of the older child’s education expenses, including boarding expenses, thus relieving Appellee of a portion of the cost of that child’s support. The order requires Appellant to pay no less than $22,000 annually for the older child’s private school tuition. It also requires Appellee to pay an amount equal to half of the younger child’s private day school tuition. Otherwise, the order states that “[n]either party shall pay child support to the other.” Nevertheless, the transcript of the hearing reflects the court acknowledged and intended the $22,000 payment to include living expenses. Private school or college boarding expenses include costs, such as food and lodging, which are by definition part of general child support. See Taylor v. Taylor, 228 Ga. 173(3), 184 S.E.2d 471 (1971) (holding it was error for the court to award board as part of the higher education expenses to be paid in addition to monthly support payments as this would necessarily include an amount for food and lodging and thus result in double payment of support); see also Marshall v. Marshall, 247 Ga. 598(3), 277 S.E.2d 662 (1981) (in a contempt proceeding, trial court did not err in interpreting an ambiguity in the child support decree so as not to require both child support and boarding expenses); Jenkins v. Jenkins, 233 Ga. 902(3), 214 S.E.2d 368 (1975) (child support award did not amount to a double payment of child support when the decree specifically stated college expenses were to be paid “in addition to” the payment for general support). Further, the evidence shows the parties agreed to pay half of each child’s private school tuition and no distinction was made between pure tuition costs and boarding costs. Also, the findings set forth in the child support worksheets demonstrate that the trial court recognized the older child’s boarding expenses were a part of and in addition to her total yearly living expenses.

        One of the justifications and findings in support of granting the nonspecific deviation in favor of Appellee for the younger child was the finding that the presumptive amount (which would result in Appellee paying over $400 monthly in child support to Appellant) would be unjust or inappropriate because “[Appellee non-custodial parent] is paying for expenses of older child which are in addition to the half of her tuition.” The corresponding finding in support of granting a nonspecific deviation in favor of Appellant for the older child was the finding that the presumptive amount would be unjust or inappropriate because “[Appellant non-custodial parent] is paying tuition for younger child.” Of course, Appellant is also paying expenses in addition to tuition for the younger child, since the final order eliminated Appellee’s child support obligations to that child except for half of tuition (even though that amount was not reflected in the child support worksheet), but that factor was not noted in the findings. In addition, though not noted on the child support worksheet, Appellant is paying for a portion of the older child’s general support since she is paying half her boarding fees. The issue of whether the final award, in effect, improperly fails to consider the benefit that accrues to Appellee as a result of requiring Appellant to pay what amounts to child support for that portion of the older child’s general support incurred during the months she lives at boarding school further illustrates the deficiencies in the child support worksheets that the court prepared in this case. As noted, the facts appear to have been fashioned in a manner to arrive at an order that appears to have been pre-determined by the trial court. Appellant complains that this results in the parent earning just over 42% of the parties’ combined income is required to bear over 58% of the total child support expenses for the two children. We do not hold that such an apportionment is erroneous as a matter of law. In fact, deviations may be awarded when the presumptive amount would be unjust or inappropriate considering the relative ability of each parent and in order to arrive at a child support determination that is in the best interest of the child. See OCGA § 19–6–15(c)(2)(E) and (i)(1)(B). The deviations must be based, however, on accurate facts to guide the calculations set out in the child support guidelines and worksheet and, as set forth above, that does not appear to have occurred in this case.

        Moreover, the deviations must be in the best interest of the child. Appellant shows that the younger child in this case is adversely impacted by the trial court’s decision not to require Appellee to contribute to that child’s support beyond paying half her tuition, whereas Appellant is effectively paying for half of the older child’s general support, in addition to half of her tuition, during the school year, thus leaving Appellant with fewer resources to support the younger child. That consideration is not reflected in either child support worksheet. The benefit that accrues to Appellee for this contribution to the older child’s general support is also not reflected in the worksheets. At the hearing, the trial court noted that these parents have elected to spend a greater portion of their combined resources on the higher education of the older child. This election, however, does not appear to justify the judge’s apparently pre-determined decision to relieve Appellee of any duty to support the younger child beyond paying half of her tuition. The cumulative effect of these material inaccuracies and inconsistencies requires us to find the court abused its discretion in arriving at the final order of child support in this case. Upon remand, the trial court is directed to apply accurate facts and figures to the case so the calculations of the child support worksheets are accurate and any deviations granted are properly supported by findings based upon these facts.

        5. Finally, the court erred by finding in its final order that “the parties have agreed and determined that deviations from [the presumptive child support amounts reflected on the child support worksheets] are appropriate as shown on the Worksheets.” The transcript and record reflect that the parties did not submit child support worksheets that had been jointly agreed upon, that the court prepared the worksheets that were incorporated into the final order, and that once those had been provided to the parties subsequent to the hearing at which the court announced its ruling, Appellant objected to the worksheets and the proposed order. Prior to the entry of the final order, Appellant filed a motion for reconsideration to which she attached proposed alternative worksheets for each child. Although the motion was denied, its filing shows that the parties did not agree to the deviations set forth in the final order. Thus, that finding in the final order is reversed. Upon remand, the trial court is required to enter a new final order revised in accordance with this opinion and based upon newly prepared child support worksheets.

        Judgment affirmed in part and reversed in part, and case remanded with direction.

All the Justices concur.

——–

Notes:

        1. Appellant initially filed her petition in the Superior Court of Houston County under the Uniform Child Custody Jurisdiction and Enforcement Act and, after the trial court ruled it had jurisdiction, she amended her petition asking the trial court also to enter a child support order under UIFSA.

        2. As more fully set forth below, the younger child lived with Appellant/Mother in Georgia. The older child lived with Appellee/Father in Alaska.

        3. The petition in O’Quinn was brought under the Uniform Reciprocal Enforcement of Support Act, which was replaced, with respect to proceedings filed on or after January 1, 1998, by the Uniform Interstate Family Support Act (Georgia Code Title 19, Ch. 11, Art. 3). See OCGA § 9–11–40.1.

        4. Neither does the worksheet for the older child.

        5. Appellee acknowledges the final order should be amended to correct this factual error.

Feb 8 15

Sovereign Immunity and the Georgia Sex Offender Registry

by merlin

Though personal and domestic matters have held the lion’s share of my attention lately (transitioning to a home office, which requires installing new flooring in the house first, is taking far longer than it ever should have), a significant portion of my attention continues to be taken by the circumstances surrounding the Georgia Sex Offender Registry.  Specifically, I wondered how it might be approached in a civil f0rum, and the question arose whether the doctrine of sovereign immunity might shield the State from liability for the harm that the Registry can cause.

While there is no case directly on point with regard to this issue, analogous situations have arisen.  The most recent such similar issue that my research uncovered involved a former agency supervisor bringing suit against the governing board for intentional infliction of emotional distress, which relief was granted in a jury trial but then reversed by the Court of Appeals.  The case, Board of Public Safety v. Jordan, 252 Ga. App. 577, 556 S.E.2d 837 (2001), describes how that legal tool would probably work in regards to the Registry, and may provide a roadmap to navigating that murky area of law.

Thurbert E. Baker, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., John C. Jones, Senior Asst. Atty. Gen., Gray, Hedrick & Edenfield, Bruce M. Edenfield, Atlanta, Evan R. Mermelstein, for appellant.

Weinstock & Scavo, Michael Weinstock, Richard J. Capriola, Atlanta, Jet Harris, Athens, for appellee.

BLACKBURN, Chief Judge.

Under the auspices of OCGA § 47-2-2, the Georgia Board of Public Safety (“Board”) terminated Bennett A. Jordan’s employment as Superintendent of the Georgia Police Academy. Following his discharge, Jordan sued the Board and other defendants, asserting multiple claims and amending his initial complaint five times.1 Ultimately, the sole issue remaining for trial was Jordan’s claim for intentional infliction of emotional distress. The jury found against the Board and awarded Jordan 1.8 million in compensatory damages and 360,000 in attorney fees which was reduced to the statutory limit of 1 million.

In this appeal, the Board contends that (1) sovereign immunity bars Jordan’s claim, (2) Jordan should have been collaterally estopped from injecting evidence of a Board “pretext” for termination at trial, (3) the facts presented failed to support Jordan’s claim, and that the trial court erred by (4) allowing the admission of character evidence, (5) failing to bifurcate the trial, (6) restricting the Board from tendering the hearing officer’s recommendation to terminate Jordan to the jury, (7) failing to admit testimony from Board members, and (8) refusing to give three specific charges to the jury. After review, we reverse.

As a merit system employee in a classified position, Jordan could be terminated only upon a “for cause” finding pursuant to OCGA § 47-2-2. Subsection (d) of the Employees’ Retirement System of Georgia (“ERS”) Code lists the following grounds for termination for cause:

An employee may be discharged from employment pursuant to the requirements of this Code section for insubordination, irresponsible performance of duties, malingering, neglect of duty, or unsatisfactory performance of duties in a willful manner or for any combination of such reasons. Any employee so discharged from employment shall not be entitled to and shall not receive a retirement benefit based on involuntary separation from employment without prejudice pursuant to Code Section 47-2-123.

OCGA § 47-2-2(d). The ERS Code specifically defines each ground, including the two pertinent here: “[i]rresponsible performance of dut[ies]” and “neglect of duties.” OCGA § 47-2-2(c)(5), (7). When discharge is under consideration, the State employer must transmit a written notice to the employee in the format specified by subsection (g). See OCGA § 47-2-2(g). An employee’s service may end by “involuntary separation from employment without prejudice,” or ” involuntary separation from employment with prejudice.” OCGA § 47-2-2(a).

In early October 1991, the Board sent two state troopers to Jordan’s house to serve Jordan with formal notice of the proposed termination and the right to a hearing. In the letter, the Board formally apprised Jordan of eight charges, most of which pertained to Jordan’s failure to reduce expenditures during a state-wide budgetary crisis and his failure to disclose certain information to the Board. The Board subsequently sent two amended notices to Jordan. More than two months after the initial notice, on December 11, 1991, presiding officer Melvin M. Goldstein conducted an administrative hearing on the eight charges pending against Jordan. At the hearing, the State sought to prove that Jordan “had been fiscally irresponsible” and “deceptive” in providing or failing to provide certain information to members of the Board. In his opening statement, Jordan’s counsel disputed the validity of the charges and argued, “This is a case that has an underlying motive that’s going to have to be explored in this matter and has really two levels of motive.” Jordan’s attorney claimed that the Board was “attempting to terminate Mr. Jordan as part of a reorganization of the Georgia Police Academy, the Georgia Fire Academy and the Georgia Public Safety Training Center.” He argued that the Board did not want to give him his rights and privileges as a merit system employee and that the Board wanted to prevent him from obtaining involuntary separation benefits and submitting his case to the Merit System Board.

The Board offered evidence showing that despite an ongoing severe budget crisis, Jordan went on trips to Unicoi State Park and Jekyll Island costing 5,000 and over 17,000 respectively. Vice Chairman of the Board, Robert E. Wilson, testified that the Board had oversight responsibility for the Department of Public Safety, the Georgia Bureau of Investigation, the Police Academy, the Fire Academy, and the Georgia Public Safety Training Center. According to Wilson, while there was a proposed plan to create a “supercop” to oversee all these agencies, Jordan’s position would not be eliminated, but the hierarchy would change and he would have reported to an intermediary and not directly to the Board. Under the reorganization plan, Wilson explained that the Police Academy would form an operational division of the Public Safety Training Center. Wilson described political in-fighting as a continuing problem between the Police Academy and the other agencies. Wilson also detailed instances in which he felt that Jordan had not been completely forthright with members of the Board. Wilson testified that it was his conclusion that Jordan’s Jekyll Island trip was “a boondoggle,” “a defiant act toward the Governor,” and “an attempt by Mr. Jordan to have a nice outing, one in the mountains for in the fall, and one at the beach in the summer for chiefs and sheriffs that he could get to attend to keep his political wheels greased.” According to Wilson, Jordan admitted having used bad judgment. Wilson testified that Jordan refused to retire and “insisted that we fire him” because “he wanted involuntary separation” benefits. The administrative hearing consumed three days.

The hearing officer, Goldstein, submitted a lengthy decision to the Board in which he recommended Jordan’s termination for cause. In a 25 page decision, that included comprehensive factual findings as well as legal conclusions, the hearing officer found that: Jordan had misled the Board with respect to the use of certain computer equipment; Jordan’s participation in unnecessary seminars was fiscally irresponsible; Jordan had been untruthful regarding the cancellation of one seminar; Jordan’s decision to proceed with a staff retreat was fiscally irresponsible; and Jordan had been untruthful about his awareness of the general budget crisis in state government. The hearing officer recommended Jordan’s employment be terminated pursuant to OCGA § 47-2-2(c)(5)(D) for “irresponsible performance of duties” and under OCGA § 47-2-2(c)(7) for “neglect of duty.” The Board adopted the hearing officer’s recommendation, and Jordan’s employment ceased effective February 5, 1992.

For reasons not made clear by the record, Jordan did not avail himself of his right to judicial review of the Board’s decision as provided in OCGA § 47-2-3. Acting without a jury, a superior court is empowered to reverse or modify the decision of the employer,

if substantial rights of the employee have been prejudiced because the administrative findings, inferences, conclusions, or decision of the employer were: (1) In violation of constitutional or statutory provisions; (2) In excess of statutory authority of the employer; (3) Affected by other error of law; (4) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

OCGA § 47-2-3(f). Although judicial review is normally confined to the record, “[i]n cases of alleged irregularities in procedure before the employer, not shown in the record, proof thereon may be taken in the court,” and the superior court, “upon request, shall hear oral argument and receive written briefs.” OCGA § 47-2-3(e).

Instead of exercising his statutory right to appeal the Board’s decision, Jordan waited nearly two years after his discharge to file a multi-count lawsuit which included a claim for intentional infliction of emotional distress. The gravamen of Jordan’s suit was that his rights were abrogated and his reputation sullied when he was wrongfully discharged and that he suffered great emotional harm as a consequence. In a claim for intentional infliction of emotional distress, Jordan specifically alleged that “[the] reprimands, suspensions and ultimate termination of Plaintiff’s employment as the Superintendent of the Georgia Police Academy have caused Plaintiff to suffer and to continue to suffer severe emotional anguish, humiliation, distress and embarrassment.” The Board moved to dismiss Jordan’s case, in part relying upon the doctrine of sovereign immunity. The trial court denied the motion, and the case proceeded to trial.

Eventually the legal issues were narrowed and confined to the parameters of a consolidated pre-trial order. The gist of Jordan’s case as outlined in the PTO was that the Board desired to reorganize and restructure certain public safety organizations and wanted to eliminate certain positions including his superintendent position. According to Jordan’s theory of the case:

[t]he “Super Chief” bill, as it was referred to, would have consolidated all state law enforcement training agencies under one umbrella agency with one agency director. The proposed legislative reorganization plan would have eliminated the Superintendent positions for both the Police Academy and the Fire Academy. The “Super Chief” bill failed to pass the legislature.

According to Jordan’s theory of his case, he was removed from his job and became a “target” because he presented an obstacle to the reorganization plan. By his theory,

[t]he evidence in this case shows that when the “Super Chief” bill failed to pass the legislature, Defendant—knowing elimination of Jordan was essential—began the malicious process of terminating Jordan. Defendant asserted pretextual allegations not of a kind or nature normally relevant to O.C.G.A. § 47-2-2. Ultimately, Jordan was terminated pursuant to O.C.G.A. § 47-2-2 with prejudice based upon Defendant’s pretextual allegations.

By his theory, the Board

in its zeal to accomplish its objective[] engaged in conduct that exceeded the bounds of decency and committed acts that are intolerable in a civilized community, causing Jordan to experience severe emotional anguish, humiliation, distress and embarrassment. Defendant’s conduct was willful, intentional and carried out with utter disregard of Jordan’s rights and the laws governing their conduct.

At trial, Jordan presented evidence to show that the Board “set in motion the malicious process of fabricating `cause’ to justify his termination” in order to facilitate a reorganization plan, thereby causing him to suffer emotional distress. As part of the “malicious process,” Jordan testified that a television news reporter had been tipped off about a seminar that he attended at Unicoi State Park during the budget crisis. Jordan testified that the reporter told him that Board Vice Chairman Wilson was quite upset that he attended the seminar, and the reporter aired a segment on television indicating that Jordan had misused state funds. Jordan testified that he had been “set up” so he could be discredited.

Jordan testified that at an October 1, 1991 meeting with Wilson, then the Vice Chairman of the Board, Wilson mentioned that the Board was “talking about terminating” him. According to Jordan, Wilson warned that the Board could “make it hard or easy” and that he should voluntarily resign. Jordan testified that when he refused to resign, Wilson threatened that he would “write [Jordan’s] termination in a way to protect the Governor…. This will become a permanent record. We will dig things up if necessary…. We must make it legal with [the] reorganization plan.” At a Board meeting, Wilson stated words to the effect that it would strengthen the Board’s position legally, “if everybody bellied up to the bar, signed the [termination] letter, and that we would hang alone or hang together, but there is less chance of hanging if we all join in.” After his discharge became final, Jordan testified that he learned that his record contained notice that he had been permanently disqualified from future merit system employment, although according to Jordan, no statutory authority for such action existed.2

Jordan offered testimony to show that an employee’s complete employment history was usually a “material” consideration when determining disciplinary actions. Jordan testified that he had not received any prior notification of any job performance deficiency from the Board and that he was never provided an opportunity to correct any claimed deficiency. One witness testified that the statute upon which Jordan was terminated was usually reserved for “alcoholics, criminals, malingerers, those who use state property for personal use or gain and excessive absenteeism,” and that the statute had been used on fewer than five occasions in eight years. Moreover, other employees who committed the same acts upon which Jordan was terminated were not similarly disciplined. Jordan testified that because he had been terminated under OCGA § 47-2-2, instead of under the merit system provisions, he was denied involuntary separation retirement benefits. Jordan testified that his termination was widely publicized in the news media. The jury entered a verdict for Jordan in the amount of 1.8 million in compensatory damages for intentional infliction of emotional distress and 360,000 in attorney fees, which was reduced to the statutory maximum of 1 million.

1. We review the trial court’s denial of the Board’s motion to dismiss on sovereign immunity grounds de novo. See Cobb County v. Jones Group, P.L.C.3

“Under the Georgia Constitution, sovereign immunity extends to the state and all of its departments and agencies. This immunity may be waived only by a legislative act which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” (Punctuation and footnotes omitted.) Dept. of Veterans Svcs. v. Robinson.4 The Georgia Tort Claims Act, OCGA § 50-21-20 et seq., provides a limited waiver of sovereign immunity for torts committed by State employees acting within the scope of their employment. Rhoden v. Dept. of Public Safety;5 McLemore v. City Council of Augusta.6 But there are exceptions to the limited waiver. Under OCGA § 50-21-24, the State remains immune for “losses” resulting from performance of a discretionary function or from slander and libel.

To determine whether these exceptions protect the Board’s sovereign immunity, we focus upon the conduct which actually produced Jordan’s “losses,” his severe emotional distress and loss of reputation. See Youngblood v. Gwinnett Rockdale & c. Svc. Bd.;7 Ga. Military College v. Santamorena;8 Dept. of Human Resources v. Hutchinson.9 If the Board’s conduct that caused Jordan’s emotional distress was based on its policy judgment or if the Board’s acts were slanderous or libelous, then the Board was protected by immunity. See OCGA § 50-21-22(2).

We find that the conduct at issue either involved slander, libel, or discretionary acts of the Board. Under OCGA § 51-5-4(a)(3), a party slanders or orally defames by “[m]aking charges against another in reference to his trade, office, or profession, calculated to injure him therein.” OCGA § 51-5-1(a) defines libel as “a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” Jordan’s allegations concerning the Board’s purported statements to the media that Jordan was engaged in extravagant seminars and was misusing funds constitute slander as defined under the statute. Even assuming arguendo that Jordan’s employment record contained a malicious and false notation permanently disqualifying him from future merit system employment, and further assuming arguendo that such writing constituted libel, no liability attached.10 See OCGA § 50-21-24(7).

We find that the remaining Board actions were within the ambit of the Board’s discretion inherent to the exercise of its administrative functions. See OCGA § 50-21-24(5). OCGA § 50-21-24(2) allows the government to retain its immunity for discretionary acts, whether or not that discretion is abused. See Brantley v. Dept. of Human Resources.11 Discretionary acts involve “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” OCGA § 50-21-22(2). The exception prevents “judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” (Punctuation omitted.) Brantley, supra at 682-683, 523 S.E.2d 571. “A discretionary act … calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” Schulze v. DeKalb County.12

Apparently recognizing the preclusive effect of the factual findings entered by the hearing officer and ratified by the Board, Jordan claims that he is not contesting his discharge but the manner in which it occurred. As stated in the response to the Board’s reply brief, “Jordan’s claim does not challenge an employment decision by the Board; the discretionary decision-making process is not the issue in Jordan’s case. Rather Jordan’s claim rests upon the Board’s conduct in carrying out that termination.” Somewhat incongruously, Jordan asserts that he did not base his intentional infliction of emotional distress claim upon the decision to terminate him but that the manner in which the Board effected his termination caused his distress.

Here, there can be no doubt that the Board’s actions in effectuating Jordan’s termination were grounded in social, economic, or political goals or a combination thereof.13 The manner in which the Board effected Jordan’s termination was wholly a matter of choice by the Board. Jordan offered no evidence showing that the Board’s decision did not fully comply with the provisions of OCGA § 47-2-2. Nor has he pointed to any specific rule or regulation directing the Board to follow any particular procedure in effecting the minor details of his termination. Even assuming arguendo that the Board was attempting to follow what it perceived were the Governor’s guidelines for reorganizing the public safety agencies, no specific instructions were provided to the Board regarding how to effect the reorganization, i.e., utilizing “for cause” provisions of OCGA § 47-2-2, serving notice and retrieving his automobile from his house at 9:00 p.m., trying to get the support of the entire Board so they could “all hang” together, failing to similarly discipline others that committed the same acts as Jordan, and failing to give Jordan the chance to cure his alleged deficiencies. Thus, the Board’s actions were discretionary in nature and protected, even if the Board could be said to have abused its discretion. OCGA § 50-21-24(2). See Brantley, supra; Rowe v. State Bd. of Pardons & Parole.14

In so holding, we note that

[n]othing we have said goes to the wisdom of refusing to waive sovereign immunity in circumstances such as those in this case. Sovereign immunity is a harsh doctrine, not an equitable one. Indeed, it is just the opposite of equity—it is the state declaring that it cannot be sued even where it would otherwise be liable…. Our job is to read the statute, not to rewrite it to conform to an equitable result.

Dept. of Human Resources v. Coley15 (physical precedent only).

2. The Board contends that the trial court erred by failing to direct a verdict on Jordan’s claim for intentional infliction of emotional distress. The Board argues that since it acted within its rights to terminate the employment for cause, then, as a matter of law, Jordan’s allegation that his termination was pretextual is insufficient to support a claim for intentional infliction of emotional distress.

To establish a claim for intentional infliction of emotional distress requires evidence of four essential elements: (1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) the existence of a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe. Jarrard v. United Parcel Svc.16 “Liability for intentional infliction of emotional distress has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Punctuation omitted.) Biven Software v. Newman.17

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been extreme and outrageous.

(Punctuation omitted). Jarrard, supra at 61, 529 S.E.2d 144. The issue of whether the conduct at issue rises to the requisite level of outrageousness is a question of law for the trial court. Johnson v. Savannah College of Art &c.18 When the acts of an employer, even when proven, are not sufficiently outrageous and egregious to constitute intentional infliction of emotional distress, the employer is entitled to judgment as a matter of law. See Fox v. Ravinia Club.19 For this reason, even if Jordan’s claim for intentional infliction of emotional distress had not otherwise been foreclosed by the doctrine of sovereign immunity, reversal would be warranted on this basis. See Odem v. Pace Academy.20

3. In light of the above, we need not address the Board’s remaining enumerations of error, including its collateral estoppel argument. See Swain v. State.21 We note that while Jordan claims that the administrative hearing was inherently “unfair” and that he did not have an opportunity to argue “pretext,” the transcript of that hearing and a contrary finding by the trial court belie those assertions.

The trial court explicitly decided that the findings of fact made by the hearing officer and adopted by the Board were “binding and conclusive because there was a full and fair opportunity to litigate those matters.” The trial court continued, “Having said that, I consider those findings of fact to be the equivalent of what would be an evidentiary stipulation.” Moreover, the transcript of the administrative hearing is replete with testimony as well as argument about the impact of the Williams Commission Report that studied governmental effectiveness and economy and the prospect of pending reorganizing and restructuring the public safety agencies. In any event, it is undisputed that Jordan failed to avail himself of the opportunity under OCGA § 47-2-3 for independent judicial review of the Board’s decision to discharge him from the position of Superintendent of the Police Academy. Nor did Jordan appeal the findings of fact adopted by the Board that his discharge was for cause.

Judgment reversed.

POPE, P.J., and MIKELL, J., concur.

——–

Notes:

        1. Jordan also asserted claims under 42 USC § 1983, the Age Discrimination in Employment Act, 42 USC § 1988, as well as tortious interference with business opportunity, conspiracy to commit tortious and illegal conduct, and violation of his substantive due process rights based upon an alleged liberty interest in his reputation. These other claims were summarily adjudicated or dismissed and are not at issue in this appeal.

2. A letter from the Commissioner of the State Merit System indicates that Jordan was disqualified only from reemployment by the Department of Public Safety. The letter states, “NOT ELIGIBLE FOR REHIRE IN TERMINATING DEPARTMENT.” Jordan testified that the disqualifying language was later removed.

3. Cobb County v. Jones Group, P.L.C., 218 Ga. App. 149, 153, 460 S.E.2d 516 (1995).

4. Dept. of Veterans Svcs. v. Robinson, 244 Ga. App. 878, 879, 536 S.E.2d 617 (2000).

5. Rhoden v. Dept. of Public Safety, 221 Ga.App. 844, 845(1), 473 S.E.2d 537 (1996).

6. McLemore v. City Council of Augusta, 212 Ga. App. 862, 864(2), 443 S.E.2d 505 (1994).

7. Youngblood v. Gwinnett Rockdale & c. Svc. Bd., 273 Ga. 715, 717(3), 545 S.E.2d 875 (2001).

8. Ga. Military College v. Santamorena, 237 Ga. App. 58, 60(1), 514 S.E.2d 82 (1999).

9. Dept. of Human Resources v. Hutchinson, 217 Ga.App. 70, 71-72(1), 456 S.E.2d 642 (1995).

10. Jordan also claims that he should have been able to argue at trial that the Board made “false” statements concerning his job performance and that such conduct caused him distress.

11. Brantley v. Dept. of Human Resources, 271 Ga. 679, 680, 523 S.E.2d 571 (1999).

12. Schulze v. DeKalb County, 230 Ga.App. 305, 308(2), 496 S.E.2d 273 (1998).

13. Federal courts interpreting the very similar Federal Tort Claims Act have found that employment decisions, in particular, involve discretionary acts, since they “require consideration of numerous factors, including budgetary constraints, public perception, economic conditions, individual backgrounds, office diversity, experience and employer intuition.” (Punctuation omitted.) Beebe v. Wash. Metro. Area Transit Auth., 129 F.3d 1283, 1287 (III) (D.C.Cir.1997); see also Richman v. Straley, 48 F.3d 1139, 1146-1147 (III) (10th Cir.1995) (“Decisions regarding employment and termination are inherently discretionary, especially where, as here, the relevant statutes provide no guidance or restrictions. [Cit.] Such sensitive decisions are precisely the types of administrative action the discretionary function exception seeks to shield from judicial second-guessing.”).

14. Rowe v. State Bd. of Pardons & Parole, 240 Ga.App. 163, 164, 523 S.E.2d 40 (1999) (supervision of employee requires exercise of discretion).

15. Dept. of Human Resources v. Coley, 247 Ga. App. 392, 398-399(3), 544 S.E.2d 165 (2000).

16. Jarrard v. United Parcel Svc., 242 Ga.App. 58, 59, 529 S.E.2d 144 (2000).

17. Biven Software v. Newman, 222 Ga.App. 112, 113 114(1), 473 S.E.2d 527 (1996).

18. Johnson v. Savannah College of Art &c., 218 Ga.App. 66, 67, 460 S.E.2d 308 (1995).

19. Fox v. Ravinia Club, 202 Ga.App. 260, 262, 414 S.E.2d 243 (1991).

20. Odem v. Pace Academy, 235 Ga.App. 648, 655, 510 S.E.2d 326 (1998).

21. Swain v. State, 251 Ga.App. 110, 552 S.E.2d 880 (2001).

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Feb 2 15

Banishment as a Tool in the Judge’s Arsenal

by merlin

Recently, a reader talked about their encounter with the judicial punishment of banishment.  They were astonished that such a thing is legal, and also wondered why it isn’t done uniformly in every criminal case that involves definite victims and definite perpetrators.  I informed them that the act is perfectly legal (technically, to be Constitutional, there must be at least one State in Georgia that the person is not banished from), and that there is authority for the act being done, but that it is a very severe sanction since it applies to so many aspects of a person’s life.  The case below is Parkerson v. State, found at 156 Ga.App. 440 , 274 S.E.2d 799.  It is concerned with the power of the Court over other persons beyond the accused for whom it is deciding the sentence, providing insight into just why a Court can’t simply banish a person convicted of a crime from the State altogether.  It was decided in 1980, and it provides a good discussion of banishment as a tool available to a judge in crafting an offender’s sentence:

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        Alva J. Hopkins, III, Folkston, for appellant.

        Dewey Hayes, Dist. Atty., Willis Blacknall, Asst. Dist. Atty., for appellee.

        SOGNIER, Judge.

        Appellant was convicted of aggravated assault and received a sentence of 10 years confinement to be served on probation. The trial court ordered as special conditions of probation that: “Defendant is to remove himself and his wife immediately from the Waycross Judicial Circuit, particularly Charlton County and specifically from where he is now living. Defendant is further ordered to stay out of the Waycross Judicial Circuit during his entire probation period.”

        Appellant’s sole enumeration of error is that the trial court erred in ordering as a special condition of probation that appellant remove his wife from the Waycross Judicial Circuit. We agree.

        Code Ann. § 27-2709 gives jurisdiction to the trial court to determine the question of probation of a defendant who has been found guilty of a criminal offense; Code Ann. § 27-2711 permits the court to determine the terms and conditions of probation, and lists 10 conditions of probation. It is well settled that the conditions enumerated in that section are not exclusive, but the trial court may impose other requirements not specifically listed therein. Wood v. State, 150 Ga.App. 582, 583, 258 S.E.2d 171 (1979); Gay v. State, 101 Ga.App. 225, 113 S.E.2d 223 (1960). Banishment of one convicted of a crime from a county or counties has been held to be a reasonable condition of probation. State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974).

        We know of no statute or other authority, however, which grants jurisdiction to the trial court to banish a person other than the convicted criminal as a condition of his probation. Not only would such a condition unreasonably restrict an innocent party’s freedom to travel, but it imposes a condition on the probationer over which he has no control. Such a condition, banishing appellant’s wife from the Waycross Judicial Circuit is, therefore, invalid and unenforceable.

        Judgment affirmed with direction that the above condition, relating to the wife only, be deleted from the trial court’s order of probation.

        DEEN, C. J., and BIRDSONG, J., concur.