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Feb 23 18

Re-Post (12/26/14 on SUMMARY JUDGMENT)

by merlin

Re-posting this entry because it seems that a refresher is necessary.

  •  It IS possible – and, in fact, it is preferable – to have a summary judgment motion made and decided on without any oral argument at all.  Uniform Superior Court Rule 6.3 confirms this expressly.
  • The opposing party in a motion for summary judgment has thirty (30) days to respond.  After that, they have waived their response.  See OCGA 9-11-56.



Statutorily, summary judgment as a tool to dispose of all or a part of a case based on the pleadings and other information that has come to light – without the expense and stress of a formal trial – is a useful method of resolving competing claims.

It is defined by The Law Dictionary as “[a] quick decision of a court based on briefings and affidavits where material facts are not disputed or where the court’s opinion is used for judgment. Also known as accelerated judgment.”
(Found at

In the Official Code of Georgia, Section 9-11-56 addresses summary judgment in civil cases.  It reads as follows:

“(a) For claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

(b) For defending party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motion and proceedings thereon. The motion shall be served at least 30 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law; but nothing in this Code section shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damage.

(d) Case not fully adjudicated on motion. If on motion under this Code section judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

(e) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. All affidavits shall be filed with the court and copies thereof shall be served on the opposing parties. When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

(f) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.

(g) Affidavits made in bad faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this Code section are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party may be adjudged guilty of contempt.

(h) Appeal. An order granting summary judgment on any issue or as to any party shall be subject to review by appeal. An order denying summary judgment shall be subject to review by direct appeal in accordance with subsection (b) of Code Section 5-6-34.”

Subsection (c) indicates that there must be a hearing and that the hearing has to be at least thirty (30)days after the motion has been made.  However, this is not a rigid and inflexible rule, because the Uniform Superior Court Rules that control how Superior Courts must be run also direct that all motions in civil cases are to be decided without a hearing wherever possible.  In the case of summary judgment motions, this is often possible, and the Uniform Superior Court Rules and the cases discussing the issue recognize it, and carve out an exception.

Specifically, USCR 6.3 addresses both of the above statements directly.  It reads as follows:

“Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.

However, oral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled “Request for Oral Hearing,” and provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response.”

In other words, it is fully possible to have a hearing on a motion for summary judgment, when it hasn’t been clearly proven by the facts, evidence, supporting affidavits, etc., but only under the specific conditions outlined in that second paragraph above.

The application of this rule was explored more fully recently in a case involving a dispute between a bank and the corporation and personal guarantor that a note had been issued to.  The case is Brooks v. Multibank 2009-1RES-ADC Venture, LLC, 317 Ga.App. 264, 730 S.E.2d 509 (Ga. Ct. App. 2012).  It specifically upheld the Court’s decisions to convert a motion for judgment on the pleadings into a motion for summary judgment, and to grant that summary judgment even though it was made less than thirty (30) days before judgment was issued, since civil motions were supposed to be decided without hearing when it was appropriate.  By the way, something else that this case shows is the devastating effect that a failure to admit something that was requested in civil Discovery but subsequently proved true, or a failure to even respond, can have on those matters, and it was because of the legal admissions that the Court was empowered to grant summary judgment here.  The case is as follows:

James William Clifton, Atlanta, for Appellant.

Andrew James Gebhardt, John Philip Webb, Stockbridge, for Appellee.

BARNES, Presiding Judge.

Appellants A.L. Brooks & Company, also known as ALB & Company and Aaron Brooks (hereinafter “Brooks”) appeal from the trial court’s order granting summary judgment to Multibank 2009–1 RES–ADC Venture, LLC (hereinafter “Multibank”). Brooks argues on appeal that the trial court erred in denying his motion to withdraw admissions and also in converting Multibank’s motion for judgment on the pleadings to a motion for summary judgment without providing him 30 days to respond pursuant to OCGA § 9–11–12(c) and OCGA § 9–11–56(c). Upon our review, we affirm.

On January 28, 2009, FirstCity Bank filed a complaint on a note and guaranty against Brooks, alleging that the corporation was in default on the loan and Brooks, as the guarantor, was liable for the $3,509,043.74 due on the loan, prejudgment interest and attorneys fees. A copy of the note and Brooks’ guaranty were attached to the complaint. On March 13, 2009, Brooks, acting pro se, filed a “response to summons” on his and the company’s behalf in which he responded simply, “We do not agree with the amounts of the indebtedness owed to FirstCity Bank. We are also working closely with a client who has expressed genuine interest in purchasing the collateral.”

In June of 2009, FirstCity Bank was granted a motion to extend discovery until March 13, 2010, and notified the court that it was under receivership by the Federal Deposit Insurance Company (“FDIC”). On January 21, 2010, the trial court sua sponte granted Brooks’ corporate entity, A.L. Brooks & Company, 31 days from the date of the order to have an attorney file a answer on the corporation’s behalf. It advised that a default judgment would be entered against the corporation if an answer was not filed by an attorney. On February 22, 2010, an attorney filed an entry of appearance and answer on behalf of “the Corporation only,” in which it challenged the court’s jurisdiction over Brooks and the corporation and also consideration for the underlying loan. On March 25, 2010, Multibank was substituted as the party plaintiff, and was granted an additional six-month discovery period until September 15, 2010.

On July 13, 2011, Multibank served discovery on Brooks, including requests for admissions. On July 14, 2010, Multibank moved to strike the answer and enter default judgment as to the corporation because the answer was not filed by an attorney, and moved for judgment on the pleadings as to Brooks, alleging that he had failed to deny the allegations in its complaint. On July 21, 2010, the trial court denied the motion to strike as to the corporation, but scheduled a September 7, 2010 hearing on the motion for judgment on the pleadings against Brooks. It also directed Brooks to file a written response to the motion “within 30 days of service of the motion and provide a copy to [Multibank].” The trial court further advised that, should Brooks fail to timely respond, the court would rule on the motion “based on the pleadings and the evidence.” Brooks did not timely respond, and on August 20, 2010, a new attorney filed a notice of appearance and substitution of counsel on behalf of the corporation and Brooks, and also moved for an extension of time in which to file his response to the motion for the judgment on the pleadings. Brooks argued his failure to respond on time was due to “excusable neglect,” and that he should be allowed to respond pursuant to OCGA § 9–11–6(b).1 The trial court placed the motion for an extension of time to respond to Multibank’s motion for judgment on the pleadings on the September 7, 2010 hearing calendar, to be addressed before the motion for judgment on the pleadings.

During this period, Brooks’ responses to several discovery requests were due, including requests for admissions, answers to interrogatories, and motions to produce, but he did not respond to them. At the September 7, 2010, hearing on the motions, Brooks was not present but was represented by his new counsel, who argued that his motion for an extension of time to respond to the motion for judgment on the pleadings should be granted pursuant to OCGA § 9–11–6(b), due to “excusable neglect,” because he was not represented by counsel during that time and did not know how to file responsive pleadings or answers.

The trial court denied the motion for more time to respond, finding no excusable neglect. It then heard Multibank’s motion for judgment on the pleadings and Brooks’ response, then orally granted the motion, after advising the parties that it was converting Multibank’s motion to one for summary judgment “because [it] was unable to ascertain the liquidated damages from the complaint alone” and had “looked to the previously filed Request for Admissions that were not responded to by Brooks.”.

On September 8, 2010, Brooks filed a motion to withdraw his admissions and a motion to extend the time to file answers to the requests for admissions. In a September 13, 2010 order, the trial court scheduled a hearing on the motion for October 19, 2010; however, on October 14, 2010, the trial court entered a written order granting Multibank’s motion for summary judgment against Brooks personally, nunc pro tunc to September 7, 2010. In the order, the trial court noted that Brooks did not file his motion to withdraw his admissions until after the trial court had ruled against him from the bench, and had not proffered any evidence that would have excused his failure to respond to the discovery request. The court awarded Multibank $3,509,043.74, plus attorneys fees of $567,359.05. Brooks appeals from this order.

1. Brooks first contends that the trial court erred in not granting his motion to withdraw his admissions. He argues that the presentation of the merits of the case would clear up the miscalculations of the debt and also that Multibank failed to show that it would be prejudiced by the withdrawal of the admissions.

If the time for response to a request for admission passes “without answer or objection, then the requests are admitted subject only to the requestee’s opportunity under OCGA § 9–11–36(b) on motion to have his admissions withdrawn….” (Citation, punctuation and emphasis omitted.) Atlanta Cas. Co. v. Goodwin, 205 Ga.App. 421, 422 S.E.2d 76 (1992). Thus, the matters in the requests for admissions were admitted by operation of law when Brooks failed to answer the requests within 30 days of service. OCGA § 9–11–36(a)(2). The trial court had the discretion to permit withdrawal of the admissions if (1) that withdrawal would subserve or advance the presentation of the merits of the action, and (2) that there is no satisfactory showing that withdrawal will prejudice the party who obtained the admissions. OCGA § 9–11–36(b).

However, “[t]he motion in this case, made after grant of summary judgment for the defendant, was not timely.” Meadows v. Dalton, 153 Ga.App. 568(2), 266 S.E.2d 235 (1980). By issuing the order nunc pro tunc the “trial court caused the written [order] to relate back to … the date of the hearing and its oral ruling.” Hinkle v. Woolever, 249 Ga.App. 249, 252, n. 1, 547 S.E.2d 782 (2001). Moreover,

[t]he party seeking to withdraw the admissions has the burden of establishing the first prong by showing that the admitted request either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and the denial is not offered solely for purposes of delay. Failure to present admissible, credible evidence contradicting the admitted matters justifies the denial of the motion to withdraw.

(Citations and punctuation omitted.) Porter v. Urban Residential Dev. Corp., 294 Ga.App. 828, 829–830(1), 670 S.E.2d 464 (2008). Under the first prong, Brooks bore the burden of either showing the admissions were incredible on their face or presenting admissible, credible evidence refuting the admissions. “If the movant fails to make the required showing to satisfy the first prong of the test, then the trial court is authorized to deny the motion to withdraw the admissions.” Turner v. Mize, 280 Ga.App. 256, 257(1), 633 S.E.2d 641 (2006). Under such circumstances, “there is no need to address the second prong.” Id. at 259(1), 633 S.E.2d 641.
Brooks made no attempt in the trial court to make either showing relative to the first prong. Thus, the trial court did not abuse its discretion in denying his request to withdraw the admissions.

2. Brooks also contends that the trial court erred in converting the motion for judgment on the pleadings to a motion for summary judgment without providing additional time for him to “confront the evidence.”

When matters outside the pleadings are considered by the trial court on a motion to dismiss for failure to state a claim, the motion is converted to a motion for summary judgment pursuant to OCGA § 9–11–56, and the trial court has the burden of informing the party opposing the motion that the court will consider matters outside the pleadings and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment.

(Citation omitted.) Gaddis v. Chatsworth Health Care Center, 282 Ga.App. 615, 616–617(1), 639 S.E.2d 399 (2006). The 30–day notice period can be waived through acquiescence of the party opposing the motion. Davis v. Phoebe Putney Health Systems, 280 Ga.App. 505, 507(2), 634 S.E.2d 452 (2006). Moreover, the error is not reversible absent a showing of harm. Sentry Ins., etc. v. Echols, 174 Ga.App. 541, 542(1), 330 S.E.2d 725 (1985).
Here, Multibank acknowledged at the hearing that the trial court could not ascertain the amount of liquidated damages from the complaint alone. The court then considered Brooks’ default admissions to ascertain the amount of damages and informed Brooks that it would treat the motion as one for summary judgment. It then permitted Brooks to present arguments on the summary judgment motion. Brooks argued that a general denial of indebtedness was sufficient to present a triable issue, and that Multibank failed to properly plead venue, and also addressed several discovery issues.

Even though Brooks asserts harm as a result of the ruling, he has offered nothing to suggest that the ruling would have been any different if he had been given 30 days to respond with more evidence. Christensen v. State, 219 Ga.App. 10, 12(4), 464 S.E.2d 14 (1995). Under the Civil Practice Act, a venue defense shall “be asserted in the responsive pleading thereto, if one is required … [or] by motion in writing.” OCGA § 9–11–12(b). Want of venue, however, may be waived expressly by failing to raise it in an answer or by written motion, or impliedly by failing to elicit a ruling from the trial court on the question of venue before the entry of judgment or the commencement of trial. Williams v. Willis, 204 Ga.App. 328, 329, 419 S.E.2d 139 (1992). A defense based on improper venue must be brought to the attention of the trial court “at the earliest opportunity to plead.” Maalouf v. Knight, 237 Ga.App. 509, 511(2), 515 S.E.2d 650 (1999).

Brooks never raised the issue before the hearing, and as was noted at the hearing, had not filed a motion to transfer venue. Even in his affidavit filed the day after the hearing, Brooks merely asserted that the amounts due were incorrect, and alluded to the payments not being made because of “certifications and approvals” related to the real estate development for which the monies had been loaned. He presented no documentation showing a contradictory amount owed on the loan, nor any evidence contravening his guaranty of the loan.

Thus, as Brooks has not shown that given additional time he would have filed additional affidavits or other supporting documentation in response to a motion for summary judgment, he has not shown that he was harmed by having the motion for judgment on the pleadings converted to a motion for summary judgment. Accordingly, no reversal is required. See Tucker v. Thomas C. Talley, M.D., P.C., 267 Ga.App. 820, 823(2), 600 S.E.2d 778 (2004).

Judgment affirmed.

ADAMS and McFADDEN, JJ., concur.


1. The Civil Practice Act provides that, when an act is required within a specific time, “the court for cause shown may at any time in its discretion[,] … upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect….” OCGA § 9–11–6(b).

Feb 5 18

Summary Judgment Can and Must Be Heard Prior to Trial Itself

by merlin

I have recently encountered a frustrating situation, in that the summary judgment motion I filed cannot be heard sooner than the beginning of the trial week itself.  This would seem to obviate the use of the motion, but the fact remains that it can and should be heard once its filed, and it can be filed “at any time after the expiration of 30 days from the commencement of the action”.  The case below, Costa v. Hamilton State Bank, 341 Ga.App. 777 (Ga. Ct. App. 2017), discusses the propriety of the Court’s control over its schedule balanced with the rights of the individual to move for judgment prior to the necessity for a trial.  In the Costa case, the motion was heard when the calendar was called, prior to trial.  It saved them the need for a trial.



        MCFADDEN, P. J.,

        BRANCH and BETHEL, JJ.

        NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.

        MCFADDEN, Presiding Judge.

        This appeal concerns an action brought by Hamilton State Bank (the bank) on guaranties signed by Juan R. Costa and Freddy A. Achecar (the appellants). The trial court granted summary judgment to the bank, and Costa and Achecar appeal pro se. They argue that the bank’s summary judgment motion was untimely, but we find it was within the trial court’s discretion to consider the motion. They argue that the bank did not establish their liability on the guaranties, but we find the evidence set forth a prima facie case of liability. Finally, they argue that the bank did not establish its damages, and we agree. Consequently, we affirm the trial court’s grant of summary judgment as to liability, but reverse the trial court’s grant of summary judgment as to damages.

        1. Timeliness of motion for summary judgment.

        The guarantors argue that the trial court erred in considering the bank’s motion for summary judgment because the motion was untimely. A party, such as the bank, seeking to recover upon a claim, “may, at any time after the expiration of 30 days from the commencement of the action . . . move with or without supporting affidavits for a summary judgment in [its] favor upon all or any part thereof.” OCGA § 9-11-56 (a). But

the phrase “at any time” does not mean that a motion for summary judgment may be filed without any time limit whatsoever. Uniform Superior Court Rule (USCR) 6.6 provides that “(m)otions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by reason of the delayed filing of a motion for summary judgment.”

Steele vRiverchase DevCo., 311 Ga. App. 340, 341 (1) (715 SE2d 760) (2011) (citation and punctuation omitted). Nevertheless, “the trial court has broad discretion in regulating its business and scheduling trials.” Cooper-Bridges vIngle, 268 Ga. App. 73, 75 (1) (601 SE2d 445) (2004) (citation and punctuation omitted).

        The record shows that in January 2016 the trial court entered a case management order stating that, “[e]xcept as otherwise provided in the Civil Practice Act or ordered by the Court, the period for filing motions has already closed.” On March 10, 2016, the bank filed a notice of substitution of counsel. On May 2, 2016, the trial court entered a trial notice placing the case on a May 20 trial calendar and stating that outstanding motions “shall be heard prior to the call of the case for trial.” And on May 5, 2016, the bank’s new counsel filed a motion for summary judgment, which the trial court granted on June 7, 2016.

        The trial court did not abuse his discretion. The bank’s new counsel filed the motion for summary judgment three days after the trial court entered the notice of the trial calendar. That notice reflected that the case was not scheduled for trial on a particular day but was one of several cases to be tried on a calendar that “shall continue until exhausion,” on a schedule to be determined at the calendar call. “No continuance of the trial was sought or granted because of the motion for summary judgment; instead, the trial was obviated by the grant of the [bank’s] motion for summary judgment. . . . ” Pullen vOxford, 227 Ga. App. 782 (1) (490 SE2d 478) (1997) (citation and punctuation omitted). And more than 30 days elapsed before the trial court ruled on the motion, giving Costa and Achecar the opportunity to respond to it. See OCGA § 9-11-56 (c) (a motion for summary judgment “shall be served at least 30 days before the time fixed for the hearing”); Brown vShiver, 183 Ga. App. 207, 209 (2) (358 SE2d 862) (1987) (OCGA § 9-11-56 (c) “allows the party opposing a motion for summary judgment at least thirty days to respond before the motion is heard”). We find no error in the trial court’s consideration of the bank’s motion for summary judgment.

        2. Summary judgment.

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. Where the movant is the plaintiff, [it] has the burden of presenting evidence to support [its] claim and the burden of piercing the defendant’s affirmative defenses.

State of Georgia vRozier, 288 Ga. 767, 768 (707 SE2d 100) (2011) (citation omitted).

        In support of its motion for summary judgment, the bank submitted the affidavit of Paul McLaughlin, its senior vice president and special assets manager, who was the bank employee primarily responsible for administering and recovering upon the guaranties at issue in this case and who also testified as the bank’s custodian of records. McLaughlin testified that in January 2006, CA Associates, LLC executed a promissory note in favor of Douglas County Bank. Costa and Achecar each executed guaranties of this obligation, and copies of the guaranties, along with other loan documents, were attached to the affidavit. Douglas County Bank subsequently closed and an appointed receiver assigned all of its assets to bank. Copies of the note, guaranties, and assignment were attached to and referenced in McLaughlin’s affidavit. After CA Associates defaulted on its obligation under the note, Costa and Achecar defaulted on their obligations under the guaranties.

        Costa and Achecar argue that the bank was not entitled to summary judgment because it did not establish a prima facie case allowing it to recover on the guaranties and because there exist genuine issues of material fact. A plaintiff in a suit on a guaranty “establishes a prima facie case by producing [the] guarant[y] and showing that it was executed[.]” CSS Real Estate DevI vState Bank and Trust Co., 324 Ga. App. 184, 185 (749 SE2d 773) (2013) (citation omitted). When the signature on the guaranty “is admitted or established, production of the instrument entitles the holder to recover on it unless the defendant establishes a defense.” LDFFamily Farm vCharterbank, 326 Ga. App. 361, 363 (756 SE2d 593) (2014) (citation omitted). “However, where a party sues for damages, it has the burden of proof of showing the amount of loss in a manner in which the trial judge can calculate the amount of the loss with a reasonable degree of certainty.” Ware vMultibank 2009-1 RES-ADC VentureLLC, 327 Ga. App. 245, 250 (2) (758 SE2d 145) (2014) (citation and punctuation omitted). As detailed below, the bank established its prima facie case of liability against Costa and Achecar but did not meet its burden as to damages.

        (a) Liability.

        The bank produced several signed guaranties that identify the appellants as guarantors, but Costa and Achecar argue that there is no evidence that they executed those specific guaranties. They also argue that there is a factual question regarding the assignment of the guaranties to the bank. We are not persuaded by either argument, so we affirm the grant of summary judgment to the bank on the issue of liability.

        (i) Evidence of execution of the guaranties.

        In their answers, Costa and Achecar stated that they could neither admit nor deny executing the guaranties “for want of information.” Compare Gause vFidelity Bank, 332 Ga. App. 844, 847 (1) (b) (775 SE2d 207) (2015) (physical precedent) (defendant’s affidavit testimony that he was certain he did not execute a guaranty and believed that the signature page may have come from another document precluded summary judgment to the bank in its action on the guaranty). But there is no dispute that Costa and Achecar did guarantee a loan made by Douglas County Bank (the bank’s predecessor) to CA Associates — they admitted so in their briefs before both this court and the trial court, and Achecar also admitted so in response to a request for admission.[1] See Kensington PartnersLLC vBeal Bank Nevada, 311 Ga. App. 196, 196-197 (1) (715 SE2d 491) (2011) (party’s factual admissions made in briefs are admissions in judicio and are binding). And McLaughlin testified that the guaranties presented by the bank in its prosecution of this action were the guaranties associated with that loan. Costa and Achecar argue that McLaughlin could not attest to the guaranties’ authenticity because he had no personal knowledge of their execution. McLaughlin testified, however, that the guaranties

were received in the regular course of business of [the bank] and are kept in the course of the regularly conducted business activity of [the bank]. It is the regular practice of [the bank] for an employee or representative with knowledge of the act, event, or contract recorded to make the record at or near the time or reasonably soon after its occurrence. The documents attached [to the affidavit] are exact duplicates of the originals, which are currently held by [the bank] in the regular course of [the bank’s] business.

This was sufficient to authenticate the documents. See OCGA § 24-9-902 (11); Salas vJP Morgan Chase BankNA., 334 Ga. App. 274, 280-281 (2) (a) (779 SE2d 48) (2015); Ware, supra, 327 Ga. App. at 248-249 (2). Taken together, the appellants’ admissions and McLaughlin’s affidavit testimony establish that the appellants executed the guaranties.

        (ii) Assignment.

        Costa and Achecar argue that the copy of the document assigning the guaranties to the bank, which was attached to and referenced in the McLaughlin affidavit, created a genuine issue of material fact regarding the assignment. This is, essentially, an argument that the bank did not establish that it is the real party in interest. See Patrick Malloy CommunitiesLLC vCommunity & Southern Bank, 334 Ga. App. 76, 79 (1) (778 SE2d 242) (2015). Costa and Achecar argue that there are questions of fact regarding the assignment because the assignment did not include a copy of an underlying purchase agreement, which was referenced in it but not made an exhibit to it. However, they cite to no authority requiring that all documents referenced in an assignment be attached as exhibits to it. They also argue that there are questions of fact regarding the assignment because it is “missing pages.” This appears to refer to a single missing page in a limited power of attorney that was attached to the assignment as evidence of the authority of the person signing the assignment to act on behalf of the assignor. The pages that are in the record include the entire text of the limited power of attorney, the signature of the party granting the power, the signatures of two witnesses, and the signature of a notary public, and it is unclear what information, if any, was on the missing page. Again, Costa and Achecar offer no citation to authority to support their position that the lack of this page gives rise to questions of fact that would preclude summary judgment.

        (b) Damages.

        The bank used the McLaughlin affidavit to establish its damages. Costa and Achecar argue that the trial court should not have considered this affidavit because it contained legal conclusions and referred to attached loan history documents that were inadmissible. We are not persuaded by either argument. But they also argue that documents attached to and referenced in the affidavit created fact questions about damages that preclude summary judgment. Because the documents attached to the affidavit do not support the testimony, we are constrained to agree and, therefore, to reverse the grant of summary judgment as to damages.

        (i) Legal conclusions.

        Arguing that the trial court should not have considered the McLaughlin affidavit because it contained legal conclusions, Costa and Achecar point to McLaughlin’s statements that the appellants were in default and that the bank had provided them with “appropriate demand and notice” before filing its action. But the affidavit also contained factual statements on those points: McLaughlin testified that Costa and Achecar had “failed to pay the amounts due and owing under [the guaranties] as those amounts became due and owing [and that the] obligations remain unpaid, due, and owing to [the bank]”; and he testified that “by letters [attached to the affidavit and incorporated therein], [the bank] made demand upon [Costa and Achecar] for immediate payment of the entire unpaid principal, interest, and late charges due and owing under the [n]ote [that was the subject of the guaranties].” Compare GE Capital MtgSvcsvClack, 271 Ga. 82, 85 (2) (b) (515 SE2d 619) (1999) (mere statement in affidavit that notice was “published ‘as required by law'” was a legal conclusion that did not establish the fact that bank had complied with foreclosure notice requirement). These factual statements could be considered in determining the bank’s entitlement to summary judgment, even if the affidavit also contained legal conclusions drawn from those facts. See Ware, supra, 327 Ga. App. at 250 (2) (“even where a portion of [an] affidavit is inadmissible, that fact does not invalidate the entire affidavit”) (citation omitted); Vickers vChrysler Credit Corp., 158 Ga. App. 434, 440 (4) (280 SE2d 842) (1981) (“the mere fact that the affidavits in question might contain certain averments which could be characterized as conclusions . . . did not prohibit the trial judge from considering the admissible parts thereof and from granting summary judgment if appropriate”).

        (ii) Admissibility of loan history documents.

        Costa and Achecar argue that loan history documents attached to and referenced in the affidavit, which the bank used to establish the amount outstanding on the note, were summaries that were inadmissible because the bank had not made the underlying records upon which the summaries were based available to them. See OCGA § 24-10-1006 (“The contents of otherwise admissible voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place.”). “[A] document that simply lists the current balance, accrued interest, and fees owed on a bank loan at the time of the litigation is not a business record but rather a ‘summary.’ . . . In contrast, . . . reports that provide a detailed transaction history of a loan [are] business records, not . . . summaries.” Roberts vCommunity & Southern Bank, 331 Ga. App. 364, 370-371 (2) (771 SE2d 68) (2015) (citations omitted). The loan history documents at issue here provided detailed transaction histories from the loan’s inception and were admissible as business records. Id. at 371 (2).

        (iii) Failure of affidavit exhibits to support testimony.

        We agree with Costa and Achecar, however, that the bank did not show that it is entitled to summary judgment on damages, because the loan history documents attached to McLaughlin’s affidavit give rise to questions of fact that preclude summary judgment. McLaughlin testified in his affidavit that the total amount due and owing under the note and guaranties as of April 28, 2016, was $413,409.86. The affidavit also “recited that it was based in part on bank records, and it is clear from the context that the portion of the affidavit which set out the amount owed by [Costa and Achecar] was based on bank records.” Taquechel vChattahoochee Bank, 260 Ga. 755, 756 (2) (400 SE2d 8) (1991) (citation omitted). An affidavit that refers to bank records to establish the amount owed on a debt must attach those records. See id. The loan history documents attached to McLaughlin’s affidavit, however, do not reflect the amount of damages set forth in that affidavit; in fact, they contain no information whatsoever about activity on the loan after 2013. Because this discrepancy is material to the amount owed under the note, and therefore the guaranties, material issues of fact exist as to the amount of damages that preclude summary judgment on that issue. See Patrick Malloy Communities, supra, 334 Ga. App. 83 (2); Ware, 327 Ga. App. at 251 (2).

        Judgment affirmed in part and reversed in partand case remandedBranch and BethelJJ., concur.



        [1]. The record does not contain Costa’s response to any requests for admissions.



Jan 11 18

Redacted Summary Judgment Theories of Recovery

by merlin

As I stated yesterday, the redacted theories for my motion for summary judgment are included in this post.  Keep in mind that many of the more subjective aspects of such a situation (child custody) are dispensed with entirely by the documentary proof.  They are not amenable to concepts of intention, being automatic mechanisms.


Statement of Theory of Recovery #1

            The document entitled Petition for Modification of Custody/Visitation and Application for Citation of Contempt (hereinafter referred to as the “Petition”) first requests modification of the custody and visitation rights of Respondent XXXXX XXXXX; the absence of grounds for modification of custody due to the absence of any material change in the relevant circumstances of the parties or the child is dealt with below:

  1. Legal standards

“A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award.”  Helm v. Graham, 249 Ga.App. 126, 129 (Ga. Ct. App. 2001)(remarriage insufficient change to justify physical custody transfer, quoting Martin v. Greco, 225 Ga.App. 752, 753(1) (1997)).   More recently, the Court of Appeals has explicitly defined what is necessary to justify that transfer, requiring that the moving party show both a sufficiently material change in conditions since entry of the prior order, as well as an adverse effect on the child.  Jones v. Kimes, 287 Ga. App. 526, 528 (2007).  It was reaffirmed in the 2015 case of Jackson v. Sanders, when the trial court was forbidden from modifying child custody when it did not find a material change in circumstances or harm to the child’s welfare.  333 Ga.App. 544 (Ga. Ct. App. 2015).

To meet the requirements of a “material change in conditions” that are to be considered by the Court in making any c

hange in custody or visitation, the Official Code of Georgia provides factors for judicial consideration in Section 19-9-3(a)(3).  They are as follows:

“(A) The love, affection, bonding, and emotional ties existing between each parent and the child;

(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;

(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;

(D) Each parent’s knowledge and familiarity of the child and the child’s needs;

(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;

(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;

G) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(H) The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;

(I) The mental and physical health of each parent;

(J) Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;

(K) Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;

(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;

(M) Each parent’s past performance and relative abilities for future performance of parenting responsibilities;

(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;

(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;

(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and

(Q) Any evidence of substance abuse by either parent.”

  1. Pertinent Admissions by Plaintiff

Nothing has happened to justify modification of physical custody, especially not in the short period of time that has passed since the divorce of the parties.  Further, the only changes that Petitioner describes in her Petition fail to even imply any adverse effect on the child.  The complete list of factors that Petitioner relies upon to meet the standard of eliminating Respondent’s rights to physical custody are set out by her in Paragraph 7 of the Petition, but they fail to withstand the items which she has legally admitted in this lawsuit by not responding to Respondent’s First Continuing Requests to Admit within an even remotely reasonable time period.  The relevant responses are as follows:

  • No medically-qualified physician has diagnosed Respondent’s health as “deteriorating”, nor is there a diagnosis of this (meaning that nothing has changed except her hearsay opinion);>
  • No written diagnosis says Respondent has “irrational” outbursts of anger (meaning that nothing has changed except her hearsay opinion);
  • Respondent has resided at his mother’s residence since he stopped residing in the marital residence (which he left prior to the divorce of the parties, meaning nothing has changed);
  • Petitioner has never witnessed any violent altercation between Respondent and his girlfriend, nor is there any kind of written or Court-Ordered agreement between the parties calling for introductions prior to meeting to the child (meaning that nothing has changed except her hearsay opinion);
  • The child experienced diaper rash prior to the separation of the parties (meaning that nothing has changed);
  • Petitioner did not check for “child-proof” facilities at homes that the child of the parties visited before the temporary hearing in this case (meaning that nothing has changed);
  • There have been no facts produced by Petitioner that indicate any harm to the health, safety, or welfare of the child of the parties (meaning that nothing has changed)
  1. Analysis

In other words, and as shown by examination of the admissions made above, Petitioner XXXXX XXXXX XXXXX has shown no material changes to the relevant child custody factors since the most recent judicial determination was made that justify changing that custodial arrangement, and her Petition’s first allegation should be dismissed with prejudice.  There are no allegations she has made that can be used to support the relief requested by her Petition.


Statement of Theory of Recovery #2

            The document entitled Petition for Modification of Custody/Visitation and Application for Citation of Contempt (hereinafter referred to as the “Petition”) also requested the issuance of a citation for contempt against Respondent because of his alleged failure to provide health insurance for the child of the parties, as he was obligated to do under the Final Judgment between the parties. 

The allegations that Respondent is in contempt of the Order of the Court can be answered thoroughly and fail to withstand Petitioner’s legal admissions in this lawsuit, made by failing to respond to Respondent’s First Continuing Requests to Admit within an even remotely reasonable time period.  The relevant responses are as follows:

  1. Legal standards

OCGA § 15-1-4(a)(3) sets out the particular category of contemptuous behavior that Respondent is alleged to have committed, defining it as “[d]isobedience or resistance by any officer of the courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the courts”.  Contempt of court has been variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court.”  In re Hadaway, 290 Ga.App. 453, 457 (Ga. Ct. App. 2008)(quoting Barlow v. State, 237 Ga.App. 152, 157(3)(Ga. Ct. App. 1999)).  However, for contempt to be punishable, it must be committed willfully.  Id.; Thomas v. Dept. of Human Resources, 228 Ga.App. 518, 519 (Ga. Ct. App.1997). See also, generally, Herrin v. Herrin, 287 Ga. 427 (Ga. 2010). 

  1. Pertinent Admissions by Plaintiff

Addressing the absence of willfulness necessary to find that Respondent is in contempt of his obligation:

  • Petitioner refused to provide Respondent with copies of the child’s birth certificate or Social Security card;
  1. Analysis

If Petitioner was in the marital residence and was in possession of the birth certificate of the child and the Social Security card for the child, both of which were necessary to obtain the insurance that the Court Ordered that Respondent provide for the child, then it stands to reason that he was unable to comply with the Order if he requested it and was denied.  It is unjust and improper to punish a person for failing to fulfill a condition that they are prevented from fulfilling, and the admission of Petitioner above make it clear that she was actively preventing him from fulfilling that condition.

The Hadaway case is particularly informative on this point, and appears to have escaped opposing counsel’s attention; the conviction for contempt of a putative adoptive father and his counsel   was reversed by the Court of Appeals in that case when it was revealed that it was based not on their contempt of the Court’s Order but instead on the biological mother’s actions that caused violation of the Order of the Court, similarly to the present situation.

On a related note, and as an epilogue, upon the fulfillment of the Request for Production of Documents and Things made by counsel for Respondent in this matter, the Social Security card and Birth Certificate of the child were provided, and said contempt has now been rendered moot by means of a pending application for insurance.  The insurance is through CHAMPVA, and became effective on or about XXXXX XX.  A copy of a letter confirming the insured status of the child is attached hereto and incorporated as if restated herein as Exhibit “A1”.  The attached document is hereby incorporated and added to the document as Exhibit “A1”.


Statement of Theory of Recovery #3

            In his Answer to Petition for Modification of Custody/Visitation and to Application for Citation of Contempt, and Counterclaim for Attorney’s Fees and Expenses, and his Amendment and Supplement to Counterclaim, Respondent has made a counterclaim against Petitioner regarding the erroneous child support imbalance made in this case, alleging fraud in the inducement.  Specifically, Respondent has noted the proof of this fraud.  In the Child Support Worksheet of the parties, a certain amount is described as the presumptive amount that Petitioner should be paying each month in support, which obligation is affirmed in the Final Judgment that binds the parties in this case, a copy of which is attached hereto and incorporated herein as Exhibit “B” to this motion.  That Final Judgment expressly states that “[t]he CHILD SUPPORT WORKSHEET filed XXXXX XX, 20XX is attached and incorporated herein by reference and made a part of this Final Judgment and Decree”, and a copy of the Child Support Worksheet is attached hereto and incorporated herein as Exhibit “C”.  Her monthly gross income is listed thereon as $XXX, and Respondent’s income is listed as $XXX.  Their respective child support obligations are listed as $XXX and $XXX twice each month.  However, with no explanation or excuse, Petitioner is not required to pay any child support under the terms of Exhibit “B”.

  1. Legal standards

In deciding on the fairness of a support obligation for the minor child, it must be remembered “that the primary consideration of the trial court in deciding custody matters must be directed to the best interests of the child involved, that all other rights are secondary, and that any determination of the best interests of the child must be made on a case-by-case basis”.  Haskell v. Haskell, 286 Ga. 112, 113 (Ga. 2009).  In fact, there are rules that govern whether a party can deviate from the monthly child support guidelines provided, and they require documentation.  “Where a deviation is determined to apply and the factfinder deviates from the presumptive amount of child support, the order must explain the reasons for the deviation, provide the amount of child support that would have been required if no deviation had been applied, and state how application of the presumptive amount of child support would be unjust or inappropriate and how the best interest of the children for whom support is being determined will be served by the deviation.”  Jackson v. Irvin, 316 Ga.App. 560, 561 (Ga. App., 2012)(explaining the provisions of OCGA §§ 19–6–15(c)(2)(E) and (i)(1)(B).  “In addition, the order must include a finding that states how the court’s or jury’s application of the child support guidelines would be unjust or inappropriate considering the relative ability of each parent to provide support. Id. at 561-562, explaining OCGA § 19–6–15(c)(2)(E)(iii).

Looking at this situation from a two-dimensional, transactional viewpoint, it must be remembered that “[s]ettlement agreements in divorce cases are construed in the same manner as all other contractual agreements.”  Steele v. Steele, 298 Ga. 548, 549 (Ga. 2016)(quoting Buckner v. Buckner, 294 Ga. 705, 708(1)(Ga. 2014).  Under the laws of contractual agreements, which are the same laws that govern this particular agreement, “[e]ssential terms of a contract include the subject matter and purpose of the contract, the identity of the parties, and the consideration” (emphasis supplied).  Id. (quoting John K. Larkins, Jr., Ga. Contracts: Law and Litigation § 5:1 (2d ed.) (database updated Sept. 2015)).

  1. Pertinent Admissions by Plaintiff

By failing to respond to Respondent’s First Continuing Requests to Admit within an even remotely reasonable time period, Petitioner has made certain legally-binding admissions.  The unjustifiable absence of a child support obligation on Petitioner is established by the following relevant admissions:

  • Petitioner has never paid child support to Respondent even though the child support worksheets indicate that she should be paying $XXX per month, and there are no large medical debts or large tax burdens that justify her nonpayment;
  • Respondent has paid at least $XXX in child support to XXXXX XXXXX XXXXX or for her since the date of her divorce from Respondent
  • The child of the parties resides in each of their care, custody, or control for approximately equal amounts of time.
  • XXXXX XXXXX XXXXX was represented by XXXXX XXXXX during her divorce from Respondent;
  • Respondent was unrepresented during XXXXX XXXXX XXXXX’s divorce from him;
  • Respondent was not present in Court for a final hearing on XXXXX XXXXX XXXXX’s divorce from him
  1. Analysis

Nothing in the Final Judgment and Decree in this case, or any accompanying documents, indicates malice on the part of Petitioner that somehow enabled her to remove her own child support obligations while insisting on those of her ex-husband, but it is suspicious that the same attorney represented her then, meticulously executed several documents that all repeated the same absence of any obligation on her part but completely ignored the mandatory provisions of OCGA § 19-6-15, obtained the signature of the trial judge in the absence of any mandatory factual findings justifying the deviations that were made on Petitioner’s behalf, and then made grandiose claims against Respondent to actually increase his obligations and reduce his rights while still failing to include any of the required provisions of law.  Though Respondent has accused them of violating the express rules of the contract that binds the parties by means of committing fraud in the inducement to get him to agree with their actions, including suborning the trial judge’s assistance in violating mandatory rules to the material and familial harm of Respondent, an unrepresented party, this error is unquestionably present, and it requires immediate correction.  Regardless of the presence of fraud in the inducement, the payment obligation of Petitioner must be fully imposed and the imbalance addressed.

            The child support obligation of Petitioner, amounting to a monthly payment of $XXX to Respondent or on his behalf twice monthly, should be imposed immediately.  Nothing excuses this.  Further, Petitioner has baldly admitted that she is now at least $XXX richer, and one month behind in making required payments for child support.  Therefore, she should be required by the Court to pay an additional $XX to Respondent, as required by law.


Statement of Theory of Recovery #4

            Both Petitioner and Respondent have requested the imposition of Attorney’s Fees and costs and expenses of litigation in this case on the other side, in accordance with the provisions of OCGA § 19-6-2.

    1. Legal standards

Attorney’s fees are specifically provided for in an action for modification of child support in OCGA § 19-6-2(a).  Those fees are entirely in the discretion of the Court, but there is a condition on the exercise of that discretion in subsection (a)(1).  It says “…except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party” (emphasis supplied).

  1. Pertinent Admissions by Plaintiff

Certain legal admissions made by Petitioner in this lawsuit by virtue of her failure to timely respond to Respondent’s First Continuing Requests to Admit shed light on the competing requests of the parties for the legal fees they have incurred to be reimbursed by the other side, highlighting the unreasonableness of the demands made by Petitioner in this case.  The relevant responses are as follows:


  • XXXXX XXXXX XXXXX was represented by XXXXX XXXXX during her divorce from Respondent;



  • Respondent was unrepresented during XXXXX XXXXX XXXXX’s divorce from him (Respondent was in an inferior bargaining position immediately);



  • Respondent was not present in Court for a final hearing on XXXXX XXXXX XXXXX.s divorce from him (Respondent had no chance to be asked about the fairness of his settlement by the Court);



  • There have been no facts produced by Petitioner that indicate any harm to the health, safety, or welfare of the child of the parties (meaning that nothing has changed)


  1. Analysis

The Divorce Settlement Agreement that binds the parties includes language that says the parties had the opportunity to consult with counsel, reciting under Paragraph 22 (“Voluntariness”) that “[t]hey have sought and obtained legal advice independently of each other and have been fully advised of their respective legal rights.”  However, as the legally-binding admission above, supplemented by the factual, black and white evidence contained in the respective Child Support obligations of the parties, makes clear, this is not so. 

The purpose behind an award of attorney’s fees under § 19-6-2 is to place the parties in as even a position as possible; however, Exhibit “C” plainly shows that Petitioner has a higher income than Respondent.  Her monthly gross income is listed on that document as $XXX, and Respondent’s income is listed as $XXX.  Their respective child support obligations are listed as $XXX and $XXX each month, but this amount was somehow not included for both parties on the final Divorce Settlement Agreement; Petitioner, represented by the exact same attorney that represents her now, somehow avoided any child support obligation at all.

The obligation to support a child is a right that belongs to the child, and may not be contracted away by the parent.  Jones v. Jones, 280 Ga; 712, 714 (Ga. 2006).  However, according to the document prepared and presented solely by Petitioner and her counsel, with little more input from Respondent than his initials, that is exactly what was done; now they are demanding even more, and with less reason.  If their arguments as to Respondent’s Post-Traumatic Stress Disorder carry any weight at all, they acted maliciously and knowingly to the detriment of the child, and financial parity demands that the Court deny the relief they seek and grant attorney’s fees, costs, and expenses of litigation to Respondent.  The time spent by counsel for Respondent is attached hereto and incorporated herein as Exhibit “D”, and the total cost of representation that Respondent was forced to obtain to vindicate his parental rights in this case is $XXXXX.




Jan 9 18

Redacted Motion for Summary Judgment in a Child Custody Case

by merlin

As is my practice, when I have filed something in a case, making it a public document, it is my habit to redact it and post it here for the commentary of anybody interested in debating the issue (please!), dispute the arguments, or use for their own purpose (though I do not guarantee any of the information on this website for the purposes of anybody other than my clients’ purposes, and then only to the extent of my contractual agreements with them).

Foreword: The request for summary judgment by the third-party relative in the Miller v. Rieser case below, 213 Ga. App. 683, 446 S.E.2d 2333, was denied by the Court on the basis of how fact-specific the decision to remove someone’s parental power must be, but it did not foreclose the idea of this being an appropriate method in certain situations.  In the case at bar, parental power removal is no longer necessarily an issue at all because of legally-binding admissions made in the suit, and nobody’s parental power is being removed (thus removing the issues in Miller).  The question then becomes whether this is an issue that would be appropriate for summary judgment in that situation. 

Please, discuss this in the comments!



COMES NOW Respondent XXXXX XXXXX, by and through undersigned counsel, and makes and files this, his Motion for Summary Judgment which shows that based on pleadings and facts in the above-styled matter show there is no genuine issue of material fact to be tried.  Judgment should, therefore, be granted to Respondent as a matter of law, and in support thereof Respondent says the following:


In this action, Petitioner XXXXX XXXXX XXXXX is seeking modification of child custody rights against Respondent XXXXX XXXXX, having become unhappy with the rights established by the divorce of the parties granted in June and alleging that there has been a material change since that time.  The second cause of action contained in her petition is for contempt against Respondent for failing to obtain insurance for the child as Respondent was Ordered to do.  The third claim involved is for attorney’s fees and expenses related to the claim.  In response, XXXXX XXXXX has brought a counterclaim alleging that she fraudulently enforced his child support obligation against him while omitting her own, and for the attorney’s fees and expenses that arise from defending against her fraudulent claims and proving the fraud that she has perpetuated upon Respondent and the child of the parties to the Court.


Section 9-11-56(c) says “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” (emphasis supplied).  This involves no official exercise of discretion by the Court, though Respondent has requested that the Court issue a ruling outlining the specific admissions that are now set as formal rules for this matter.  In this case, the Admissions made by Respondent are attached hereto and incorporated as if restated fully herein as Exhibit “A”.  These are judicial admissions that were not responded to within the time set by statute for their response, and the admissions show that Respondent is entitled to judgment as a matter of law on several, if not all, of the pending claims.

The 1994 Court of Appeals case of Miller v. Rieser, 213 Ga. App. 683, 446 S.E.2d 2333, involved a grant of summary judgment in a grandparent custody matter under OCGA § 19-7-1 that was reversed by the Court of Appeals, but it is particularly telling that the reason for the decision of the Court on the issue was that “[w]hile the question of fitness is based on present fitness, it is affected by what has gone on before to bring the parent and child to this point, and it obviously involves a determination which has significance only in the future, for it is the child’s custody from the time of the judgment forward that is at stake”.  Id. at 689.  In other words, this would ordinarily involve a determination of fact, so it would be uncertain whether the issue is amenable to summary judgment as a remedy; this inquiry is foreclosed by the judicial admissions made by Petitioner.

            As to the existence of a material change that adversely affects the best interests of the child in question, something necessary for any child custody arrangement between the parties to be altered by the Court, several of the items on Exhibit “A” speak directly to this issue, and are detailed in the attached Statement of Theory of Recovery (#’s 1-4), specifically denying that any facts were produced by Petitioner that show any harm to the health, safety, or welfare of the child of the parties, necessarily voiding any finding of either past or present unfitness.


          There exists no genuine issue of material fact on the parental fitness of Respondent and no material fact regarding his provision of insurance for the child of the parties, as explained by the attached Statement of Theory of Recovery (#’s 1-4), accompanied by the admissions made by Petitioner on Exhibit “A”; further, the counterclaims of Respondent for the imposition of the established child support obligation of Petitioner and for its retroactive application to the date of the divorce of the parties, and for the costs, fees, and expenses associated with this action, are also legally proven.  Respondent is entitled to judgment as a matter of law.

WHEREFORE, Respondent XXXXX XXXXX requests the following relief:For judgment in his favor on all counts of both the Petition and the Counterclaim made to that Petition as a matter of law;

    1. For the adjustment of the child support obligation of the parties to reflect the prevailing legal standards;
    2. For a hearing to be set by this Court should it deem a hearing on the issue(s) necessary, within the time provided by law; and
    3. For such other and further relief as the Court in its discretion deems fit to grant



I will post the specific theories (1 -4) tomorrow.









Respectfully submitted, this XXX day of XXXXX, 2018.



Dec 21 17

“Reasonable Efforts” in Civil Discovery

by merlin

Section 9-11-36 of the Official Code of Georgia provides the rules governing Requests for Admissions under the Civil Discovery scheme.  This Code section is prized by litigants because it has the unique ability of defining the strict rules for a contested civil suit between parties.  However, as with other Discovery, the rules require that the attorneys contact each other before they file a motion of any kind to enforce Discovery.  This raises the question of what kind of contact is required in order to satisfy this requirement.


The question is answered by the Court in its decision in Gropper v. STO Corporation et al., 276 Ga.App. 272 (Ga. Ct. App. 2005).  The Court found that only one effort to resolve the Discovery dispute is required by the Code; if the other side does not take advantage of the opportunity to resolve the dispute between the parties, then the aggrieved party may take action as provided for by the Code section or as is defined in he subsequent Code section (governing Motions to Compel Discovery).  As a reminder, the relevant part of Section 9-11-36, subsection (2), reads as follows:

“(2) Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney; but unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission; and, when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to subsection (c) of Code Section 9-11-37, deny the matter or set forth reasons why he cannot admit or deny it.” (emphasis supplied).


Notice, by the way, that the Code section does not make any provision for discretion of the Court; rather, “[t]he matter IS admitted”.  (emphasis supplied).


The case in question concerned a dispute between homeowners and the various builders, contractors, and subcontractors that were involved in construction of a housing development.  The homeowners apparently failed to follow the rules governing Discovery and their case was dismissed.  The Court upheld that dismissal, and one of its findings involved what kind of effort to resolve the Discovery dispute is required by the Code.  The reasoning is important:

“Michael G. Gorby, Mary D. Peters, Barry E. Edwards, Adam H. Long, Gorby, Reeves, Peters & Burns, P.C., Atlanta, for Appellants.

        Jonathan B. Mason, John A. Thomson Jr., Womble, Carlyle, Sandridge & Rice, Swift, Currie, McGhee & Hiers, Stephen M. Schatz, Melissa K. Kahren, Pursley, Lowery & Meeks, John C. Amabile, Atlanta, for Appellees.

        SMITH, Presiding Judge.

        This appeal arises out of the trial court’s order striking and dismissing the plaintiffs’ complaint for wilful failure to respond to discovery. Because the record supports the sanction, we find no abuse of the trial court’s discretion. We therefore affirm.

        This is the second appearance of this case here. As more fully set out in Gropper v. STO Corp., 250 Ga.App. 820552 S.E.2d 118 (2001), plaintiffs Gary and Vickie Gropper, on behalf of themselves and their children, sought redress against three defendants for property damage and personal injuries allegedly arising out of the unauthorized substitution of a synthetic stucco product during the construction of their home. Id. They contended that defects described in their complaint resulted in water infiltration, which in turn damaged their home and caused personal injuries through the growth and release of “hazardous [biological] contaminants and chemicals into the indoor environment.” Numerous cross-claims and third-party claims were filed as well. Id. at 820-821, 552 S.E.2d 118. In the previous appeal, this Court affirmed in part and reversed in part the trial court’s grant of partial summary judgment and summary judgment. Following this Court’s July 2001 decision, several claims remained pending.


  • The issues addressed in this appeal involve the Groppers’ pattern of failing to respond efficiently and timely to discovery requests made by the defendants. In July 2003, defendant Renaissance Building Corporation filed a motion for entry of a case management and scheduling order. Renaissance sought an order setting forth discovery deadlines, particularly a date by which the Groppers “be required to revisit, update and restate their answers to previously served discovery.” Renaissance noted that the plaintiffs’ previous discovery responses were “outdated and so absurdly overbroad as to make some of them virtually meaningless” and that the Groppers should “be required to narrow and more properly shape their prior responses.” It appears that the initial discovery responses had been provided only after the trial court compelled response and imposed sanctions on the Groppers.


        In December 2003, the trial court entered a scheduling order setting a trial date and deadlines for discovery, motions, and identification of expert witnesses. The order also required the parties to submit monthly status reports concerning the status of discovery. It provided further that deadline extensions could be granted only by court order and that any motion filed late without such an order would be deemed untimely and would not be considered.

        On February 6, 2004, the trial court conducted a status conference. The transcript of that conference shows that the Groppers’ interrogatory responses were not yet complete and that their counsel had not provided a status report as required by the trial court. Counsel for Renaissance stated that he had received 185 pages of interrogatory responses and that “[w]e have information in here where if we have to go through and do discovery on executive orders that clearly relate to protected classes, this case will never end.” Renaissance provided examples of irrelevant and lengthy responses to interrogatories and document requests and stated, “We shouldn’t have to march through discovery responses to try to figure out what is buried as relevant information.”1Renaissance also noted that the Groppers had not complied with the trial court’s previous direction to them to produce medical records. Counsel for Evans Plastering, one of the other defendants, pointed out that interrogatories had been served on the plaintiffs on October 31, 2003, that an extension had been granted until December 16, and that as of the date of the status conference, no response had been received.

        Also on February 6, the trial court entered a written order requiring the Groppers to “re-cast and succinctly and directly respond to” Renaissance’s interrogatory supplementation request and to provide answers to the other defendant’s interrogatories within seven days of the order. The order further required the Groppers to provide responses to pending document requests by furnishing within 14 days of the order “a categorized, organized and indexed written response of all responsive documents.” Finally, the order recited, “Failure to comply with this order will result in the plaintiff’s complaint being stricken and the case dismissed.”

        On February 27, following both deadlines set by the court in its February 6 order, counsel for Evans Plastering sent the trial court a lengthy letter detailing numerous deficiencies in the Groppers’ interrogatory responses. Also on February 27, the Groppers’ counsel provided a written status report in which he admitted that he failed to meet the terms of the February 6 order relating to document production, blaming in part a computer problem. He stated further that he had been informed by the court’s judicial assistant that if he wanted permission to delay the February 20 document response date, a formal motion was needed. Counsel did not file a motion. He “instead went ahead and filed responses to all the document requests, by the [February 20] deadline,” and he “had to supplement the responses to add the parts of the indexes that could not be provided.” He added that he had since faxed those indexes to counsel.

        The record also shows that two days past the deadline for identifying experts, the Groppers served on Renaissance a twenty-eight-page document disclosing more than fifty individuals or entities, and counsel also filed a motion for additional time to designate additional experts at an undetermined date. It appears that some of the listed individuals had not yet examined all the Groppers. Another group of purported experts included individuals who may not have seen the property at issue. We note that with respect to one of the listed “experts,” the disclosure recites, “We do not know what, if anything, they did.”

        The defendants filed a joint motion for sanctions based on the Groppers’ failure to comply with the February 6 order. In response, Vicki Gropper and her trial counsel filed affidavits providing numerous excuses for the failure to comply with the trial court’s order. These included: loss or destruction of documents due to mold contamination; the sale of the Groppers’ property; the death of Vicki Gropper’s mother; Vicki Gropper’s diagnoses of insulin resistance, hypoglycemia, allergies to food and migraine medicine, chronic fatigue syndrome, and hormonal imbalance; and Vicki Gropper’s struggles with dyslexia.

        The trial court conducted a hearing on the defendants’ motion for sanctions. Counsel for Renaissance argued that “the purposes of discovery are not being met in this case. We are not narrowing issues for trial. If anything, we keep introducing new and additional issues as time goes on.” He added that he did not yet “have the information I need to take the depositions because we’re not getting appropriate discovery responses and appropriate help from the plaintiffs.”

        In response, the Groppers’ counsel again provided numerous excuses for his failure to meet deadlines. He also gave various reasons for his lengthy list of expert witnesses. At the conclusion of the hearing, the trial court stated that it found “a willful failure to abide by” the February 6 order and that “based on the history of the case and what has transpired since this case was filled in 1999,” it was exercising its discretion to dismiss the case. The court entered a written order granting the motion, striking the complaint and dismissing the action. After retaining new counsel, the Groppers appeal, arguing in large part that they substantially complied with the trial court’s order and that any noncompliance was not wilful.

        Trial courts have wide latitude in the management of discovery. As stated in Butler v. Biven Software, 238 Ga.App. 525522 S.E.2d 1 (1999),

Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion. This policy is peculiarly applicable in the context of allegations of discovery abuse.

        (Citation and punctuation omitted.) Id. at 527(2), 522 S.E.2d 1. “Historically, it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in absence of abuse.” (Citation and punctuation omitted.) Loftin v. Gulf Contracting Co. 224 Ga.App. 210, 215(3), 480 S.E.2d 604 (1997). Under OCGA § 9-11-37(b)(2)(C), one sanction available to a trial court is that of dismissal of an action for failure to comply with a discovery order. Before exercising its discretion to impose this harsh sanction, a trial court must find that the offending party acted wilfully. Schrembs v. Atlanta Classic Cars, 261 Ga. 182402 S.E.2d 723 (1991). “The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful.” (Citations and punctuation omitted.) Loftin, supra, 224 Ga.App. at 215, 480 S.E.2d 604. And “[a] party who intentionally fails to comply fully with a court order may be subject to the harshest of sanctions.[Cit.]” Butler, supra, 238 Ga.App. at 528(2), 522 S.E.2d 1. In determining whether a party wilfully failed to comply with discovery, the trial court is “the trier of fact and its finding of wilfulness from the evidence presented will not be reversed where there is any evidence to support it.” (Citation and punctuation omitted.) Id. at 527, 522 S.E.2d 1.

        This case does not involve an isolated failure to comply with discovery requests. The record here illustrates a pattern of violation of discovery rules, explicit direction by the court, and written orders of the court. As discussed above, the Groppers were previously sanctioned for failure to respond to discovery requests. They failed to provide all monthly status reports as required by the trial court. At times they failed to respond to discovery requests and on the occasions that they did respond, they consistently provided late, overbroad, and irrelevant answers and documents. Following the trial court’s specific and emphatic February 6 order, they failed to meet deadlines set by the court, failed to respond to all written discovery, and failed to file a motion for an extension of time to respond in spite of explicit instructions. We agree with the appellees that the Groppers engaged in “a pattern of discovery abuse much broader than mere `inadequate responses’ to written discovery. Numerous times [they] inexcusably and completely failed to respond to discovery within the requisite deadlines, and in violation of the Georgia Civil Practice Act and/or the court’s orders.”

        Although the sanction of dismissal is severe, we cannot conclude that the trial court abused its discretion in this case. See Sheppard v. Johnson, 255 Ga.App. 165564 S.E.2d 729 (2002). Unlike the record in Motani v. Wallace Enterprises, 251 Ga.App. 384554 S.E.2d 539 (2001), cited by the Groppers, which showed an accidental failure to comply with an order concerning document production, the record here supports the trial court’s finding of wilful failure to respond to discovery. As stated in Deep South Constr. v. Slack, 248 Ga.App. 183546 S.E.2d 302 (2001), “Plaintiffs who file lawsuits and put defendants to the expense and trouble to answer should at least prosecute their actions efficiently and diligently; the Civil Practice Act authorizes dismissal in a case like this.” (Citation and punctuation omitted.) Id. at 187(3), 546 S.E.2d 302.

        a court cannot assume that a future failure to comply with discovery orders will be unjustifiable. It must examine the circumstances retrospectively. This means affording an opportunity to explain the circumstances following the failure; which means, in turn, an express motion and notice to the party concerned.[Cit.]

        Id. at 211(3), 538 S.E.2d 441. In Tenet Healthcare, the trial court issued an order on a motion to compel giving the plaintiff ten days to comply or suffer dismissal of the complaint. Id. at 212,538 S.E.2d 441. Because the order did not condition dismissal on the filing of a formal motion and “the passage of the concomitant `opportunity to be heard,'” the Supreme Court found the order to be “an impermissible prospective, self-executing order of dismissal.[Cit.]” Id.

        The facts of this case are similar to those in Tenet Healthcare, as the trial court’s February 6 order did not make “the parties aware that an additional step would have to be taken before the sanction [of dismissal] would be effective. [Cit.]” Id. The order did not require the defendants to file a motion and did not inform the Groppers that they would have an opportunity to explain any delays or deficiencies. Nevertheless, the defendants did file a formal motion for sanctions, the trial court did conduct a hearing on the motion, and the Groppers’ counsel did have opportunity to be heard on the issue of the Groppers’ failure to comply with the court’s February 6 order. Reversal requires a showing of harm as well as error, Lloyd v. Hardman, 261 Ga.App. 894(2), 583 S.E.2d 925 (2003), and we cannot conclude in this case that the Groppers suffered harm by virtue of the language in the February 6 order.

3. The Groppers contend that the trial court abused its discretion in ruling on the defendants’ motion for sanctions “brought without an adequate prior good faith conferral” required by Uniform Superior Court Rule(USCR) 6.4. Under that rule, “counsel for the party moving to compel must certify that he has conferred with opposing counsel in an effort to resolve the matter. [Cit.]”Lykins v. Nationwide Mut. Ins. Co.,214 Ga.App. 577, 580(4), 448 S.E.2d 716 (1994). The record here shows that before the trial court entered the February 6 order, Renaissance sent at least three letters to the Groppers’ counsel in an attempt to resolve discovery disputes related to the Groppers’ interrogatories and to a set of document requests. The attorneys also had “at least one, if not more, conversations” concerning these disputes, and Renaissance “received no substantive response to” its letters. The December 19, 2003 status conference and the February 6, 2004 hearing and scheduling order ensued.  The Groppers argue that dismissal is unauthorized because no further attempts at resolution were undertaken before the defendants filed their motion for sanctions. We do not agree. “[T]here is no requirement in [USCR 6.4] that counsel for the movant make more than one attempt to resolve the discovery matter.” (Citation and punctuation omitted.) Deep South, supra, 248 Ga.App. at 185-186(1), 546 S.E.2d 302. Here, as in Deep South, the record shows the existence of “numerous attempts to satisfy the requirements of the rule.” Id. at 186(1), 546 S.E.2d 302.       

Judgment affirmed.

        ELLINGTON and ADAMS, JJ., concur.—————


It appears that in response to document requests, the Groppers produced many returned checks, including checks to private schools and a museum, and “stacks and stacks of receipts from pharmacies.” Counsel for Renaissance stated, “There is no way for us to tell just by being given a production which of those documents is relevant to anything.” When asked by the trial court if he had “grocery bags full of stuff,” the Groppers’ counsel answered that he had “a hamper . . . full of checks and credit card bills.”

  • —————“


Nov 10 17

Continuing Education Partial Notes – 42 USC 1983 Litigation

by merlin


November 9, 2017; State Bar HQ


Federal Constitutional and Statutory Protections for Non-Citizens:

Brian Spears (Law Offices of Brian Spears)

Michelle R. Lapointe (Southern Poverty Law Center)


4th Amendment Protections:

Regardless of immigration status, 4th Amendment applies (all persons) – Zadvydas v. Davis, 533 U.S. 678 (2001).


14th Amendment:

State has less power than feds because of plenary power

  • Ziglar v. Abbasi (2017): Limits Bivens remedy for claims of constitutional violations against high-ranking officials arising out of post-9/11 harsh detention policies and practices
  • Noncitizens are considered “discrete and insular minority” and strict scrutiny applies to classifications based on alienage. Graham v. Richardson, 403 U.S. 365 (1971)


“Important rights” (such as education, via Plyler) versus “fundamental rights” (life, liberty, etc.) – courts have struggled with trying to find the right level of scrutiny – INTERMEDIATE SCRUTINY


State Sovereign Immunity, Post-Lathrop

Craig Goodmark:


Seek declaratory/injunctive relief.

Lathrop limited the judicial branch power to grant relief; seek to sue the personal holder of the office in charge?  Defendants are the State and the official in their official capacity


Sovereign Immunity is limited ONLY by statutory or constitutional waivers


Could not even get them 1974 to 1983 beyond insurance purchased.  In 1983, legislature resumed waivers.


Georgia DNR v. Center for Sustainable Coast, 294 Ga. 593 (2014):

Overruled IBM v. Evans (which held that sovereign immunity bars suit for injunctive relief); expressly overruled Evans (since only the legislature can waive sovereign immunity, it’s actually an illegal waiver)


            Brian Spears is the best person to ask about the Sustainable Coast case.


Exceptions: Georgia Tort Claims Act?  Administrative Procedure Act?  What about CONSTITUTIONAL CHALLENGES?

  • Lathrop v. Deal says that sovereign immunity goes to constitutional challenges, too.  It extends “from the very nature of sovereignty itself”.
  • Can ONLY sue the actors in the INDIVIDUAL CAPACITIES (because of Lathrop and Sustainable Coast)

Name State Defendants in their individual capacity; sue under existing exemptions to sovereign immunity:

  • Breach of contract
  • GTCA
  • Georgia APA


Use extraordinary writs (mandamus, quo warranto)

Plead ministerial acts of individual state actor

Amend complaint to drop agency




Offers of Judgment in Civil Actions (FRCP Rule 68)

Michael Caplan (Caplan, Cobb, LLP)


Rule 68(d) ONLY kicks in when a Plaintiff actually WINS the case


Defendants need to think about Rule 68 to limit Plaintiff recovery

Even if Plaintiff prevails and rejects it, they still have to prove the reasonableness of their fees at the time the offer was made.


Compare to § 9-11-68 (offers of settlement):

  • If Plaintiff loses or wins less than 75% of amount offered, they have to pay BOTH sides’ costs.
  • If the Plaintiff gets more than 125% of amount offered, then they can collect all costs and fees from the date of the rejection, too.


Remember that if only federal claims are brought in federal court, stuck with Rule 68, but if any State law claims are included then can include a § 9-11-68 claim in response


Pre-Suit Notice of Dispute:

  • For attorney’s fees, generally REQUIRED!

Getting Classy With Section 1983 (Class Actions)

Crystal Redd, Southern Center for Human Rights



Building the Plaintiff Class:

  • Cold calls
  • Word of mouth
  • Local activists
  • Court-watching (and Court research)
  • Open Records requests


For the definition of the class, remember “ALL PERSONS WHO ARE NOW OR WILL BE IN THE FUTURE…”


Class representatives:

  • Compelling story for the class
  • Comfortable having story shared
  • They understand the remedy (ie – injunctive relief means no money)


Class certification:


Settlement: REMEMBER NOTICES if there are damages



Malicious Prosecution Claims

Jeffrey Filipovits (Filipovits Law Firm)


Malicious Prosecution claims are governed by 4th Amendment (Manuel). 

  • Must remind Court up front that it is controlled by federal law even if State law doesn’t recognize it.
  • Official Immunity is a nightmare, state tort claims confer immunity on them, and state policy frowns on malicious prosecution


  1. Initiation of a prosecution (must be pursuant to a “legal process”)
  • Remember: “False Arrest” versus “Malicious Prosecution”
  1. There must be a detention pursuant to the legal process that is ONGOING

(there are conditions on a bond such as not letting them leave the State that constitute a continuing seizure)

  1. Arrest must be made WITHOUT PROBABLE CAUSE
  • The Monroe rule: Monroe v. Seigler, 256 Ga. 759 (1987) – if judge denies directed verdict, no malicious prosecution suit unless denial was secured through fraud
  • Devenpeck – being subsequently charged with an offense less serious than the one the person was arrested for can absolve of liability
  • Admissibility of ultimate evidence of guilt – upholds validity of otherwise invalid arrest
  • What if Defendant is not a law enforcement officer?
  • Is the fact that a judge signed off on a warrant a defense? It shouldn’t be, especially if the officer has selectively omitted important facts
  1. Must be made WITH MALICE.
  • It can be inferred from lack of probable cause, and it runs contrary to the “objective” standard of the Fourth Amendment






Perspectives from the Bench

Hon. Catherine Salinas

“Magistrate Judge in the United States District Court”


Consent to jurisdiction by Magistrate Court more often – they have the scheduling ability, etc., and want it.


“magistrate” is an ADJECTIVE, not a NOUN.


Protests: Speech and Signage Issues

Sean R. Young (ACLU)


Speech regulation: “content neutral” (intermediate scrutiny) versus content discrimination (strict scrutiny)

  • If you have to read the sign to enforce regulation, it isn’t content neutral.


Motive analysis: Look into the hearts of the legislators (good, or evil?):

If it’s intended to suppress a viewpoint, that’s NOT content-neutral and you need a neutral justification


Apply these tests except when you don’t.


When is it content-neutral?

  • Risk-sniffing test: Is there a RISK that the government will suppress speech it doesn’t like?
  • Strict scrutiny is UNWARRANTED when the risk is inconsequential.


Reed v. Town of Gilbert (2015):

  • Sign ordinance set size restrictions for signs, depending on whether they were “ideological”, “political”, or “temporary directional”
  • Court applied facial analysis and motive analysis to find the regulation unconstitutional under strict scrutiny
Oct 12 17

*Actual* Limits on Child Custody Modification and Contempt Actions

by merlin

An action to obtain a change legal custody (or modification of a determination made) is controlled in this State by the provisions of OCGA Section 19-9-23.  The text of the section follows:

  • 19-9-23. Actions to obtain a change of legal custody; how and where brought; limitations

(a) Except as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.

(b) A complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state.

(c) No complaint specified in subsection (a) or (b) of this Code section shall be made:

(1) As a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or

(2) In response to any other action or motion seeking to enforce a child custody order.

(d) The use of a complaint in the nature of habeas corpus seeking a change of child custody is prohibited.


These seem to be pretty inflexible limitations on what can and cannot be done regarding these kinds of actions.  However, for finer determination of the governing principles, the text of Colbert v. Colbert, 321 Ga.App. 841, 743 S.E.2d 505 (Ga. Ct. App. 2013), is below.  This case addresses contempt of the original divorce decree provisions and a reply of child custody modification brought in response to it.  It provides an informative response on the topic, and it is presented for better understanding of the manner of operation that Courts are bound by in these cases.


DOYLE, Presiding Judge.

Following their divorce in Fulton County, Shenita Colbert (“mother”) and Tramaine Colbert (“father”) shared joint legal custody of their two minor children, with the mother having primary physical custody. The mother filed a petition for contempt and modification of child support in Clayton County, and the father filed an answer, a counterclaim for modification of custody, and a motion for contempt. The trial court granted the father’s motion to modify custody, giving him primary physical custody, required the mother to pay child support, and denied both parties’ motions for contempt. The mother appeals, arguing lack of jurisdiction and improper venue with regard to the trial court’s rulings on contempt and custody. We affirm, for the reasons that follow.

The record shows that the parties were divorced in Fulton County in June 2007. Pursuant to the decree, the parties shared joint legal custody of their minor children, but the mother had primary physical custody. In July 2010, the mother filed a petition in Clayton County, the father’s county of residence, seeking a modification of child support and contempt. The father answered and counterclaimed, requesting a change of custody of the minor children and child support, and a motion for contempt. Following a two-day hearing, the trial court entered an order based “upon evidence submitted [at the hearing],” finding that neither party was in contempt, modifying physical custody of the children from the mother to the father, and ordering the mother to pay child support. This appeal followed.

1. The mother argues that the trial court erred by considering the father’s counterclaim for custody. We disagree.

2 Whether the father could seek a custody modification in the form of a counterclaim in the mother’s Clayton County action against him to modify child support and for contempt, as well as whether the mother waived her right to challenge this procedure, are legal issues.1 When a question of law is at issue, as here, we review the trial court’s decision de novo.2

34 In Georgia, “after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.”3 No custody modification complaint “shall be made: (1)[a]s a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or (2)[i]n response to any other action or motion seeking to enforce a child custody order.”4

[T]he language of OCGA § 19–9–23 is clear[,] unequivocal[,] and … mandatory [,] and … therefore a counterclaim seeking a change of custody in an action brought by the custodial parent in the county of the noncustodial parent’s residence is improper because (1) it is not a separate action and (2) it is not brought in the county of the custodial parent’s residence.5

“The defenses of lack of personal jurisdiction and improper venue [, however,] clearly may be waived, even in child custody cases.”6

Here, the mother did not file any pretrial written objection to venue or jurisdiction with regard to the father’s counterclaim for custody, and because there is no transcript of the bench trial7 or an authorized substitute,8 any objection she may have made at trial is not contained in the record on appeal.9 The mother bear[s] the burden of showing harmful error on appeal, and [she] must show this by the record, not merely by assertions appearing in [her] briefs or enumerations of error. Therefore, in the absence of a transcript, we must assume the trial court’s findings were supported by the evidence and the trial court’s actions during the trial were appropriate. Further, a presumption of regularity of all proceedings in a court of competent jurisdiction exists….10

Because the record does not show that the mother objected to the trial court’s consideration of the father’s counterclaim for custody before or during the trial, we must affirm the trial court’s ruling on this issue.11

2. The mother also argues that the Clayton County Superior Court was without jurisdiction to consider the parties’ motions for contempt because the divorce judgment was entered in Fulton County. This argument is without merit.

It has long been the rule in this state, as in other jurisdictions, that an application for contempt must be filed in the court which rendered the order or judgment in question. In divorce cases, this means that, generally speaking, a contempt application must be filed in the superior court which entered the divorce decree. The reason for this rule has been set forth succinctly as follows: The theory upon which the right of a court to punish for contempt is, that every court has power to compel obedience to its judgments, orders, and processes. It necessarily follows that only the court offended has power to punish for the contempt or to entertain proceedings to that end.12

There is an exception, however, to this rule:

We find it necessary in the context of divorce and alimony cases to depart from the general rule that a contempt action must be brought in the offended court. We now hold that where a superior court other than the superior court rendering the original divorce decree acquires jurisdiction and venue to modify that decree, it likewise possesses the jurisdiction and venue to entertain a counterclaim alleging the plaintiff is in contempt of the original decree.13

Further, “[w]here a nonresident voluntarily institutes a suit in a county in this State[, she] submits [herself], for all purposes of that suit, to the jurisdiction of the courts of the county in which the suit is pending.”14

Here, the mother filed a petition to modify child support in Clayton County, where the father resides. She also included a motion for contempt in the same action, and the father filed a counterclaim for contempt. Thus, “there is no dispute that the [Clayton] County court properly acquired jurisdiction to modify the divorce decree, independent of the contemporaneous motion for contempt. Accordingly, the [Clayton] County court also acquired jurisdiction to punish a contempt of the original decree,” and the trial court did not err by ruling on the parties’ motions for contempt.15

Judgment affirmed.

McFADDEN and BOGGS, JJ., concur.

All Citations

321 Ga.App. 841, 743 S.E.2d 505, 13 FCDR 1621



See Bailey v. Bailey, 283 Ga.App. 361, 362, 641 S.E.2d 580 (2007).


See Curtis v. Klimowicz, 279 Ga.App. 425, 426(1), 631 S.E.2d 464 (2006).


(Emphasis supplied.) OCGA § 19–9–23(a). The Supreme Court of Georgia has explained that “[t]his statute was enacted by the Legislature to curtail the practice [of] allowing the noncustodial parent to relitigate custody in his own jurisdiction.” Kapur v. Roach, 272 Ga. 767, 768, 534 S.E.2d 420 (2000).


OCGA § 19–9–23(c).


(Citations, punctuation, and footnotes omitted.) Bailey, 283 Ga.App. at 362–363, 641 S.E.2d 580, citing Jones v. Jones, 256 Ga. 742, 743, 352 S.E.2d 754 (1987).


Daust v. Daust, 204 Ga.App. 29, 31, 418 S.E.2d 409 (1992).


The Clerk of the Clayton County Superior Court indicates that there was not a transcript filed in the trial court.


See OCGA § 5–6–41(g).


The mother argues for the first time in her reply brief on appeal that she was not aware that the trial court was considering modifying custody as to the parties’ younger son until after the conclusion of the trial. We note, however, that this assertion was not made in the mother’s two post-trial motions in which she objected to venue and jurisdiction with regard to the father’s counterclaim for custody modification. In any event, the lack of a transcript requires us to affirm.


(Citation and punctuation omitted.) West v. Austin, 274 Ga.App. 729, 618 S.E.2d 662 (2005).


See, e.g., Ganny v. Ganny, 238 Ga.App. 123, 125(2), 518 S.E.2d 148 (1999) (mother waived her venue challenge to the father’s counterclaim for custody by failing to raise it until closing argument, after evidence was introduced on the issue); Houston v. Brown, 212 Ga.App. 834, 443 S.E.2d 3 (1994) (mother waived challenge to counterclaim for modification of custody by failing to move to dismiss until after the conclusion of the trial and a temporary order was issued).


(Punctuation omitted.) Ford v. Hanna, 292 Ga. 500, 502, 739 S.E.2d 309 (2013), quoting Jacob v. Koslow, 282 Ga. 51, 52, 644 S.E.2d 857 (2007).


(Punctuation omitted.) Ford, 292 Ga. at 503, 739 S.E.2d 309 citing Buckholts v. Buckholts, 251 Ga. 58, 61(1), 302 S.E.2d 676 (1983).


Biddinger v. Fletcher, 224 Ga. 501, 504, 162 S.E.2d 414 (1968).


Ford, 292 Ga. at 505, 739 S.E.2d 309. See also Corbett v. Corbett, 236 Ga.App. 299, 301–302, 511 S.E.2d 633 (1999).

End of Document© 2017 Thomson Reuters. No claim to original U.S. Government Works.


Sep 28 17

Harassing Communications, In Brief

by merlin

There is very little case law on this issue yet, as the law was only codified in 2015, the conduct which it addresses having been previously prosecuted under different statutes, including terroristic threats and harassing telephone calls.  However, with the advent of text messaging and e-mail as a common means of contact, and since said contact often walks a fine line between threatening as a consequence of said contact versus making overt threats, it is a logical extension.


The law itself is found at Section 16-11-39.1 of the Official Code of Georgia, and reads as follows:

“(a) A person commits the offense of harassing communications if such person:

(1) Contacts another person repeatedly via telecommunication, e-mail, text messaging, or any other form of electronic communication for the purpose of harassing, molesting, threatening, or intimidating such person or the family of such person;

(2) Threatens bodily harm via telecommunication, e-mail, text messaging, or any other form of electronic communication;

(3) Telephones another person and intentionally fails to hang up or disengage the connection; or

(4) Knowingly permits any device used for telecommunication, e-mail, text messaging, or any other form of electronic communication under such person’s control to be used for any purpose prohibited by this subsection.

(b) Any person who commits the offense of harassing communications shall be guilty of a misdemeanor.

(c) The offense of harassing communications shall be considered to have been committed in the county where:

(1) The defendant was located when he or she placed the telephone call or transmitted, sent, or posted an electronic communication; or

(2) The telephone call or electronic communication was received.

(d) Any violation of this Code section shall constitute a separate offense and shall not merge with any other crimes set forth in this title.

(e) This Code section shall not apply to constitutionally protected speech.”


Notice that the burden it discusses is that it must be proven that the person made the communication(s) “for the purpose of harassing, molesting, threatening, or intimidating such person or the family of such person”.


Because there is a scarcity of cases discussing the topic, perhaps the most informative appellate case on the topic is Nosratifard v. State, 320 Ga.App. 564 (Ga. App. 2013).  It actually dealt with Aggravated Stalking arising from violation of an existing protective order, but the points of law that it made (such as the fact that even one repetition of conduct that is forbidden by a stalking order would be repeated enough to trigger criminal penalties).  The case is below

“Sharon Lee Hopkins, for Appellant.

Penny Alane Penn, Dist. Atty., for Appellee.


        Shahrokh Nosratifard appeals from the trial court’s denial of his motion for a new trial following his conviction on five counts of aggravated stalking based on five text messages sent to Karen Maxie. On appeal, Nosratifard asserts that the evidence was insufficient to support his convictions and further argues that the trial court erred in failing to merge the counts involving texts that occurred as part of a continuous course of conduct or conversation. Because we find that the evidence was sufficient to support Nosratifard’s convictions and that his convictions were not subject to merger, we affirm.

        “On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.)Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004). This Court neither weighs the evidence nor determines the credibility of witnesses, but rather considers only whether, after viewing the evidence in the light most favorable to the jury’s verdict, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation, punctuation and footnote omitted.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

        So viewed, the evidence at trial showed that Karen Maxie met Nosratifard online in 2004, and they began a relationship. By 2006, Nosratifard “was practically living with [her].” During this time Maxie helped finance Nosratifard’s cabinet business. But by 2007, the relationship had deteriorated, and by May 2008, Maxie decided to end the relationship due to Nosratifard’s “mental abuse.” She said this abuse included possessiveness, watching her home, searching her home without consent, running a background check on her and threatening to distribute intimate pictures of her to her family, co-workers and the community in which she lived. When Maxie told Nosratifard that the relationship was over, he “exploded” and said that he would never let her go.

        Although Nosratifard never stayed at Maxie’s house again, he called her continuously and “pled and begged and screamed and cussed” for her to give him a second chance. Maxie said she kept talking to him and trying to persuade him that it would be better for them to be friends because she wanted to “do whatever it [took] to keep from provoking him, and I felt like if I got him to be friends that sooner or later he would get the message and leave me alone, but he never did.”

        On the few occasions when she agreed to meet Nosratifard, the meetings did not go well. One meeting in August 2008 occurred after Nosratifard demanded that Maxie get her belongings from his cabinet shop. Maxie’s adult daughter went with her to the shop, and became upset with Nosratifard’s treatment of her mother during the meeting. She shook her finger in Nosratifard’s face and told him to leave her mother alone. On the way home, Nosratifard called Maxie on her cell phone to complain about her daughter’s behavior and to threaten her family. The next day, Maxie and her children discovered that seven tires on their cars had been slashed. Maxie and Nosratifard met later in a public parking lot, and Nosratifard told Maxie that he had slashed the tires on her children’s cars. Maxie reported these incidents to the police.

        In January 2009, Nosratifard called Maxie repeatedly, screaming, cursing, and demanding that she return everything that he had ever bought for her. Maxie contacted police to report Nosratifard’s continuing behavior and subsequently obtained a Temporary Protective Order (“TPO”). On the day she obtained the TPO, Nosratifard called her beginning at 5:00 a.m. and continued throughout the day, even after the order was issued. Maxie decided to meet Nosratifard at a gas station on the way home from court to give him the things he wanted, hoping that would satisfy him. But he became upset and began tossing things around, so Maxie got in her car and drove away. A few days later, Maxie noticed Nosratifard following her to work at around 4:30 a.m., and she called and asked him to stop. In February 2009, a hearing was held on her request to extend the TPO, but after Nosratifard agreed to leave her alone, the judge denied her request.

        The next day, Maxie saw Nosratifard parked in an overlook near her house as she was driving home. He motioned her over, and she stopped because she was afraid of what might happen if she did not. Nosratifard gloated about beating her in court, and told her that she needed to get the TPO cleared from his record, or he was going to show her “what revenge is all about.” Later that month, Maxie saw Nosratifard again parked in the overlook. He waved her over, but she did not stop. He followed her, passing three vehicles to get directly behind her, and flashed his lights on and off signaling her to stop. Maxie called 911 to report his behavior. Maxie felt threatened by Nosratifard’s behavior. In February 2009, she installed a security fence, security lights and a camera at her home; she also purchased a gun and a dog.

        Maxie and her daughter began shopping in an adjacent county to avoid Nosratifard, but on March 1, 2009, they observed a white truck following them and were able to get the tag number. Police later identified the truck as a vehicle rented by Nosratifard. Two days later, on March 3, 2009, Maxie saw Nosratifard standing beside his truck, which, once again, was parked in the overlook.1 He tried to wave her over, but she kept driving. When Maxie saw Nosratifard pass a car so he could be directly behind her, she called police. He repeatedly closed in on her car, and she was afraid that he was going to hit her. When they came to a stop light, Nosratifard started to get out of his car, but the light changed to green, and Maxie sped off, taking a left turn from the right lane. Nosratifard pulled beside her car and began shaking his finger and screaming obscenities at her. She pulled into a gas station, and when police arrived Nosratifard was placed under arrest for aggressive driving.2 Maxie obtained a second TPO the next day. While Nosratifard was in jail, Maxie and her children all changed their cell phone numbers.

        Nosratifard posted bond for his release on or about March 9, 2009, and one of the special conditions of his bond order provided:

        The Defendant shall stay away, absolutely, directly or indirectly, by person, telephone, e-mail, messenger or any other means of communication from KAREN MAXIE hereinafter referred to as “victim.” That includes, but is not limited to, the victim’s home, school, and place of business or routes of travel to or from those locations. Violations connected with contacting/following the victim may subject the Defendant to a separate prosecution for the felony offense of Aggravated Stalking.

        Although Maxie and her family had been receiving text messages they believed to be from Nosratifard since 2008, they received no texts while Nosratifard was in jail on the driving charge. But after Nosratifard bonded out of jail, Maxie and her children began receiving hang-up calls on their home phone number. They did not recognize the numbers showing on the caller ID for these calls. In addition, they began receiving text messages on their cell phones from numbers they did not recognize. Maxie and her children testified that from the spelling, choppy English, certain phrases and the content of the texts, they believed that Nosratifard was sending these texts. For example, one text included the language “we need to talk face to face,” which Maxie and her son identified as a phrase Nosratifard used repeatedly. Another text states, “ask your mamy [sic] she knows,” and Maxie and her children testified that Nosratifard often referred to Maxie as her children’s “mammy” because he thought she babied them. Other texts referred to Maxie’s reports to the police, and Nosratifard was aware that Maxie had reported his actions to the police. Another text referred to voice recordings of phone messages from Nosratifard that Maxie had given police.

        The police were present when Maxie received some of these texts. Deputy Sheriff Brian Sadler of the Forsyth County Sheriff’s Office arrived at Maxie’s house at 8:19 p.m. on April 2, 2009,3after she notified police that she was receiving harassing phone calls. He observed that Maxie was extremely nervous and frightened. The house phone rang continuously, approximately 10 to 15 times while Sadler was there, and she was receiving text messages. At 8:32 p.m., she received the text at issue in Count IV, which stated, “I know you will show all off [sic] this text to the police but don’t because more trouble for you.” Because this text referred to the police within minutes after Sadler entered Maxie’s house, he became concerned that Nosratifard was keeping the house under surveillance. He called for back-up and searched outside, but the police did not locate anyone.

        When Investigator Matthew Starr of the Forsyth County Police Department attempted to trace the phone numbers from which the hang-up calls and text messages were sent, he discovered that most of the messages and calls came from prepaid phones,4 for most of which no provider could be identified, and thus he was unable to connect Nosratifard with any of those phone numbers. However, he was able to trace one of the numbers from the hang-up calls to a pay phone located approximately five to ten minutes from Nosratifard’s cabinet shop.

        Nosratifard was arrested on April 28, 2009 and charged with the five counts of aggravated stalking, arising out of five text messages sent to Maxie’s phone between March 21 and April 15, 2009. Maxie and her children received no further text messages after Nosratifard was arrested on these charges.

        1. Nosratifard asserts that the evidence was insufficient to support his convictions because the State produced only circumstantial evidence to prove that he sent the texts and failed to exclude every other reasonable hypothesis except that of his guilt. Nosratifard points to testimony from Maxie’s son that in October 2008, he received a large amount of texts and hang-up calls, which he attributed to Nosratifard, but Maxie’s son conceded that Nosratifard was at Maxie’s house in connection with his cabinet business when some of these calls and texts were received. Nosratifard also points to evidence that two Hispanic males were caught on the security camera slashing the tires on Maxie’s and her children’s cars in February 2009.5 He argues that this evidence demonstrates that someone else could have been harassing Maxie and her children.

         Nosratifard is correct that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24–4–6.6 But “the proved facts need exclude only reasonable hypotheses—not bare possibilities that the crime could have been committed by someone else.” (Citation and punctuation omitted; emphasis in original.) Prather v. State, 293 Ga.App. 312, 313(1), 667 S.E.2d 113 (2008). And it is well settled that

        questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.
(Citation omitted.) Robbins v. State, 269 Ga. 500, 501(1), 499 S.E.2d 323 (1998). “The appellate courts have no yardstick by which to ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of 12 jurors of rational mind.” (Citation omitted.) Giles v. State, 211 Ga.App. 594, 595(1), 440 S.E.2d 48 (1993).

       To prove that Nosratifard was guilty of aggravated stalking, the State was required to show

        (1) that a protective order prohibited [Nosratifard] from engaging in certain conduct with respect to [Maxie]; (2) that [Nosratifard] followed [Maxie], placed her under surveillance, or contacted her without her consent; (3) that such an act violated the protective order; and (4) that such an act was done for the purpose of harassing and intimidating [Maxie].

(Citation omitted.) Louisyr v. State, 307 Ga.App. 724, 728(1), 706 S.E.2d 114 (2011). See also OCGA § 16–5–91(a).


         Nosratifard’s March 9, 2009 bond order prohibited him from communicating with Maxie by telephone or any other means. Text messages clearly would be a prohibited form of communication in violation of the bond order, and the texts at issue were sent after the order was issued. Although the State was not able to connect Nosratifard directly to any of the numbers used to send these texts, Maxie and her children testified that the texts contained phrases often used by Nosratifard, references to information known by Nosratifard, and “broken English” similar to that employed by Nosratifard. Moreover, the text messages stopped when Nosratifard was in jail on the driving charge, resumed when he bonded out and stopped completely when he was arrested on the charges in this case. The jury considered the evidence cited by Nosratifard, which related to actions prior to the entry of the bond order, and determined that Nosratifard sent the text messages in this case. Because this finding “is not insupportable as a matter of law or outside the proven facts, we shall not disturb it.” (Citations omitted.) Giles v. State, 211 Ga.App. at 595(1), 440 S.E.2d 48.

         The State was also required to prove that Nosratifard sent the texts for the purpose of harassing and intimidating Maxie. The definition of “harassing and intimidating” in this context is found under the stalking statute, OCGA § 16–5–90(a)(1), and it involves four factors of its own:

        (1) a knowing and willful course of conduct directed at [Maxie] (2) which causes emotional distress by placing [Maxie] in reasonable fear for her safety (3) by establishing a pattern of harassing and intimidating behavior, and (4) which serves no legitimate purpose. OCGA § 16–5–90(a)(1).

(Punctuation omitted.) Burke v. State, 297 Ga.App. 38, 41–42, 676 S.E.2d 766 (2009). The evidence at trial supported a finding of a long and clear pattern of knowing and wilful, harassing and intimidating behavior by Nosratifard directed at Maxie for no legitimate purpose. The text messages themselves, sent on three separate days, establish such a pattern. And this evidence combined with Nosratifard’s other threatening behavior and Maxie’s testimony that she was so scared she felt compelled to undertake security measures was more than sufficient to establish the last element of the crime of aggravated stalking as to each count of the indictment.


        Thus, “[e]ven though there was no direct evidence that defendant committed the crime, we conclude that the evidence meets the standard set forth in Jackson v. Virginia, [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560,] in that a rational trier of fact could find proof of guilt beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis.” (Citation omitted.) Giles v. State, 211 Ga.App. at 595–596(1), 440 S.E.2d 48.

         2. Nosratifard also argues that the trial court should have merged Count I, involving a text sent on March 21, 2009 at 6:56 p.m., with Count II, involving a text sent the same day at 7:18 p.m., for sentencing because they “are part and parcel of the same criminal act.” He makes the same contention as to Count III, involving a text sent April 2, 2009 at 7:08 p.m., and Count IV, involving a text sent the same day at 8:32 p.m., because he asserts that they were sent as part of an ongoing conversation that began at 6:43 p.m. that day.7

         “The doctrine of merger precludes the imposition of multiple punishments when the same conduct establishes the commission of more than one crime. Whether offenses merge is a legal question, which we review de novo.” (Citations and punctuation omitted.) Louisyr v. State, 307 Ga.App. at 730(2), 706 S.E.2d 114. But even if we were to assume that the texts sent on the same day were part of a continuous course of conduct, merger would not necessarily be required under the facts of this case. Rather, “whether a course of conduct can result in multiple violations of the same statute … requires a determination of the ‘unit of prosecution,’ or the precise act or conduct that is being criminalized under the statute.” (Footnotes omitted.) State v. Marlowe, 277 Ga. 383, 384(1), 589 S.E.2d 69 (2003).8 “Accordingly, the starting point must be the statute itself.” Id.

       OCGA § 16–5–91(a) provides:

        A person commits the offense of aggravated stalking when such person, in violation of a bond to keep the peace posted pursuant to Code Section 17–6–110, temporary restraining order, temporary protective order, permanent restraining order, permanent protective order, preliminary injunction, good behavior bond, or permanent injunction or condition of pretrial release, condition of probation, or condition of parole in effect prohibiting the behavior described in this subsection, follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

        Based upon the plain language of the statute, the prohibited conduct is following, placing under surveillance, or contacting another person without consent in violation of one of the enumerated orders or conditions for the purposes of harassing or intimidating that person. Thus, under the facts of this case, the unauthorized act of contacting Maxie in violation of the condition of the bond order forms the proper “unit of prosecution” under OCGA § 16–5–91(a). This interpretation is consistent with this Court’s prior decisions holding that “[e]ven a single violation of a [bond] order may violate OCGA § 16–5–91(a) if that violation is part of a pattern of harassing and intimidating behavior.” Brooks v. State, 313 Ga.App. 789, 792(1), 723 S.E.2d 29 (2012), citing Louisyr v. State, 307 Ga.App. at 729(1), 706 S.E.2d 114 (rejecting argument that aggravated stalking requires a pattern of violating a protective order).

        Nosratifard points to nothing in the record to indicate that the texts at issue in Counts I and II, sent on March 21, were part of any ongoing conversation with Maxie or anyone else. Rather, they represent two separate contacts with Maxie in violation of the special condition in his bond order, and the trial court correctly refused to merge them.

        Although the evidence does demonstrate that the text messages referenced in Counts III and IV are two of fifteen texts sent to Maxie on April 2, we find that they are separate contacts in violation of the aggravated stalking statute. The record shows that Nosratifard initiated the contact on April 2 to both Maxie and her daughter, who were sitting beside each other when they received the text. That text read simply, “What’s up?” and the daughter decided to respond on her phone to try to get Nosratifard to incriminate himself. Maxie testified, however, that she did not respond to any of the texts because she was too afraid. As the exchange of texts progressed, Nosratifard was apparently on notice that the person responding was not Maxie because at 6:52 p.m., he directed the other person to “ask your mamy[;] she knows,” although some of the other texts in the conversation appear to be directed to Maxie. The evidence indicates that Nosratifard sent the text message at issue in Count III at 7:08 p.m. to both Maxie and her daughter. 9 Nosratifard and Maxie’s daughter continued exchanging messages until the last message came from Nosratifard at 8:55 p.m.

        The evidence also shows that Nosratifard separately sent the text message at issue in Count IV, which referenced the police, to Maxie at 8:32 p.m. while Deputy Sadler was there. And that text does not appear in the text messages taken from the daughter’s phone. The evidence supports a finding, therefore, that the text message in Count IV was not part of any ongoing conversation, but was a separate and independent contact with Maxie. Thus, each of the texts at issue constituted a separate violation of Nosratifard’s bond order and each supported a separate charge of aggravated stalking.

        Accordingly, we find no error in the trial court’s decision not to merge any of the counts for sentencing. See Louisyr v. State, 307 Ga.App. at 731(2), 706 S.E.2d 114 (merger not required for one count of aggravated stalking based upon defendant’s following victim to hotel and second count based upon his attempt to enter her hotel room in violation of protective order). See also Smith v. State, 290 Ga. 768, 773–774(3), 723 S.E.2d 915 (2012) (finding no merger required for five counts of attempting to elude a police officer where defendant led police “on a dangerous high speed chase after being given clear signals by five separate police vehicles to stop” because unit of prosecution under OCGA § 40–6–395 was act of fleeing from an individual police vehicle or officer after being given the signal to stop by that vehicle or officer);

      Ledford v. State, 289 Ga. 70, 71–72(1), 709 S.E.2d 239 (2011) (three counts of aggravated battery did not merge where each count was predicated on a different injury and thus different conduct by the defendant and testimony of pathologist showed that each injury was caused by separate blows to the victim’s body); Eskew v. State, 309 Ga.App. 44, 48–49(4), 709 S.E.2d 893 (2011) (no merger required for two counts of aggravated battery where one count charged defendant with violently shaking six-month-old baby and second count charged defendant with fracturing his skull where expert testified that there must have been some kind of impact to the child’s head in addition to the shaking to account for the fractured skull). Compare Gonzales v. State, 298 Ga.App. 821, 824(1), 681 S.E.2d 248 (2009) (merger required for two counts of aggravated battery arising out of single act of pushing victim out of a moving car); McKee v. State, 275 Ga.App. 646, 651(5), 621 S.E.2d 611 (2005) (criminal conduct constituted a single course of conduct spanning several days, not a separate offense of cruelty to children for each day, where unit of prosecution was causing a child excessive physical or mental pain and statute did not define crime temporally).

        Judgment affirmed.

BARNES, P.J., and McFADDEN, J., concur.



        1. Earlier the same day, Maxie’s son saw Nosratifard following him when he left school for a work program, although the son was able to lose him when he turned into a school parking lot.

        2. Nosratifard was convicted of this charge in October 2009.

        3. The texts at issue in Counts III and IV were received on April 2.

        4. Starr described a prepaid phone as “basically an untraceable phone,” with no means of tracing it through records to a specific individual.

        5. Maxie and her children did not recognize the individuals shown on the tape. And Maxie testified that Nosratifard often hired Hispanic workers at his shop.

        6. Although this statute was repealed by Ga. L. 2011, p. 99, § 2 as of January 1, 2013, it was in effect at the time of Nosratifard’s trial. In any event, OCGA § 24–14–6 of the current evidentiary code contains identical language.

        7. The text message in Count V was sent on April 15, 2009 at 7:53 p.m., again at 7:56 p.m. and again at 9:09 p.m.

        8. “Because the instant case does not involve two distinct statutory provisions, the ‘required evidence’ test does not apply.” (Citation omitted.) Smith v. State, 290 Ga. 768, 773(3) n. 4, 723 S.E.2d 915 (2012). See also Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

        9. That text read, “I want to help you trust me. I am not that scarry [sic] am I?” Maxie felt the use of the word “scary” also helped Maxie identify Nosratifard as the sender because he used to tell her that people found him scary, and she also used to tell him that he had scary facial expressions.”

Aug 16 17

Redacted Domestic Violence Temporary Protective Order Answer

by merlin

As is my practice, when I have filed a document, I typically post a redacted copy of that document here on this site.  I do this to assist both fellow practitioners (who may find something useful, or who may shed better light on the flaws in a document) and persons facing a situation that it sheds some light on.


The Georgia Code provides for the issuance of a Domestic Violence Restraining Order at Section 19-13-4.  The law is below:

“(a) The court may, upon the filing of a verified petition, grant any protective order or approve any consent agreement to bring about a cessation of acts of family violence. The court shall not have the authority to issue or approve mutual protective orders concerning paragraph (1), (2), (5), (9), or (11) of this subsection, or any combination thereof, unless the respondent has filed a verified petition as a counter petition pursuant to Code Section 19-13-3 no later than three days, not including Saturdays, Sundays, and legal holidays, prior to the hearing and the provisions of Code Section 19-13-3 have been satisfied. The orders or agreements may:

(1) Direct the respondent to refrain from such acts;

(2) Grant to a party possession of the residence or household of the parties and exclude the other party from the residence or household;

(3) Require a party to provide suitable alternate housing for a spouse, former spouse, or parent and the parties’ child or children;

(4) Award temporary custody of minor children and establish temporary visitation rights;

(5) Order the eviction of a party from the residence or household and order assistance to the victim in returning to it, or order assistance in retrieving personal property of the victim if the respondent’s eviction has not been ordered;

(6) Order either party to make payments for the support of a minor child as required by law;

(7) Order either party to make payments for the support of a spouse as required by law;

(8) Provide for possession of personal property of the parties;

(9) Order the respondent to refrain from harassing or interfering with the victim;

(10) Award costs and attorney’s fees to either party; and

(11) Order the respondent to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of family violence.

(b) A copy of the order shall be issued by the clerk of the superior court to the sheriff of the county wherein the order was entered and shall be retained by the sheriff as long as that order shall remain in effect.

(c) Any order granted under this Code section shall remain in effect for up to one year; provided, however, that upon the motion of a petitioner and notice to the respondent and after a hearing, the court in its discretion may convert a temporary order granted under this Code section to an order effective for not more than three years or to a permanent order.

(d) A protective order issued pursuant to this Code section shall apply and shall be effective throughout this state. It shall be the duty of every superior court and of every sheriff, every deputy sheriff, and every state, county, or municipal law enforcement officer within this state to enforce and carry out the terms of any valid protective order issued by any court under the provisions of this Code section.”

I am especially interested in subsection (a)(10), in which the Court may “[a]ward costs and attorney’s fees to either party”.  When the filing is frivolous, this seems very appropriate.  

The following is a redacted Answer to a Domestic Violence TPO.  Note that it must be responded to within seven (7) days!




            COMES NOW Respondent XXXXX XXXXX, by and through undersigned counsel, and makes and files this, his Answer to Petition for Temporary Protective Order, Motion for Sanctions, and Motion to Dismiss in response to the misleading, redundant, and maliciously harmful Temporary Restraining Order that Petitioner has sought against XXXXX XXXXX, and in support thereof states the following:



            XXXXX XXXXX is suffering from déjà vu, because this is remarkably similar to Petitioner’s actions two years ago, when the issue of child custody was first litigated between the parties and Petitioner brought an ex parte Temporary Protective Order against him at that time to prevent him from seeing his child.  Similar to the situation that occurred last time, this can easily be shown to be fraudulent in every way and motivated not by fear for her safety but by transparent child custody motivations.  In support thereof, Respondent attaches a copy of the Petition for Temporary Protective Order that Petitioner sought at that time hereto as Exhibit “A”.  Noticeably, there is an incredible similarity between the two, even using the same threat in each document (“over his dead body”), so that Petitioner could remove the child of the parties from his care and custody using a falsely-obtained process of law.


            Attached hereto and incorporated herein as Exhibit “B” is a copy of the Order as to Legitimation, Custody, and Support entered by the Superior Court of XXXXX County on the XXth day of XXXXX, 20XX, which specifically places the final decision as to all disagreements between the parties in child custody matters addressed by their agreement with Respondent.  The present Temporary Protective Order being sought arose following a dispute between the parties about Petitioner’s refusal to attend “orientation” (see Paragraph 4 of Petition for Temporary Protective Order), a dispute that concerns the entry of the child of the parties into a formal educational facility described in Paragraph A a) of Exhibit “B”.  However, as Petitioner informed Respondent, preschool is not mandatory, though she relied on this paragraph when bringing the police to his residence to forcibly take the child from his custody, prior to unilaterally cancelling her attendance at preschool without consulting Respondent.


            Following the requisite hearing on this issue and the review of the parties’ proof, this Court should not hesitate to pursue all available charges against Tammy Head for the crime of false swearing, given that she has expressly lied to the Superior Court Judge that issued this Petition, and both incarceration and fines should be Ordered for her disingenuous actions against XXXXX XXXXX.



            Respondent ADMITS that jurisdiction and venue for this action lies in White County, but DENIES each and every one of the other allegations made in the Petition for Temporary Protective Order, specifically denying that his telephone call to her described in Paragraph 4 of that document contained threats to her and further denying that he ever said he would kill her.  Though admittedly not valid evidence due to lack of consent, Respondent has recorded all telephone conversations with Petitioner given her established pattern of blatant falsehoods.  He has reviewed the conversation in question, and no such threats were ever made.


            The statement made by Petitioner in Paragraph 5 of the Petition for Temporary Protective Order is hereby DENIED.


            The allegations made by Petitioner in Paragraph 5 of the Petition for Temporary Protective Order is hereby ADMITTED.

Section 19-9-3(a)(1) of the Official Code of Georgia states that “[i]n all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother.“  In this case, however, the matter of custody has been judicially-established, and the terms that govern it are clear.  Petitioner’s behavior is indefensible. 


The Domestic Violence Temporary Protective Order being sought by Petitioner arises directly from the Stalking Protective Order provided for by the Georgia Code, and is a specialized form of that law.  O.C.G.A. § 16-5-94(d) provides the Court with the power to do the following in the course of these proceedings:

(1)  Direct a party to refrain from such conduct;

 (2)  Order a party to refrain from harassing or interfering with the other;

 (3)  Award costs and attorney’s fees to either party; and

 (4) Order either or all parties to receive appropriate psychiatric or psychological services as a further measure to prevent the recurrence of stalking.”

            This recommendation was not acted on in the petition filed and subsequently dismissed in XXXXX 20XX, but it would be appropriate to do this now.  She lied, and she did so knowingly, willfully, and maliciously.

Section 19-13-56(b) excuses the officers whose assistance was falsely obtained from being held liable, but each and every one of these potential forms of relief are appropriate against Petitioner for her behavior.  She violated a verified petition and enlisted the assistance of a Superior Court Judge in her perjury and she wrongfully took a child out of a safe environment to instead keep that child living under her thumb in a sordid and unhealthy situation. 


            Section 16-5-94(d)(3) permits the Court “to award attorney’s fees and costs to either party” (emphasis supplied), and the action of Petitioner have necessitated substantial and diligent action by undersigned counsel.  The undersigned has agreed to this representation in addition to an action for modification of custody being initiated by Respondent in XXXXX County because it directly pertains to that representation.  This representation would not have been necessary but for the petty and fraudulent actions of Petitioner.  The undersigned hereby requests that he be paid attorney’s fees of $1,000, representing approximately five hours, and that a reasonable amount be assessed for costs against Petitioner.  The undersigned will gladly provide an itemized statement of work performed to the Court to substantiate this request, if such is deemed necessary.

            WHEREFORE, Respondent requests the following relief:


  • For the Court to dismiss the temporary protective order directed by it against Respondent;



  • For an Order granting $1,000 in attorney’s fees against Petitioner and in favor of the undersigned directly;



  • For an Order granting reasonable costs related to and arising from this action to Respondent and against Petitioner; and



  • For such other and further relief as the Court in its discretion deems fit to grant.


Respectfully submitted, this XXth day of XXXXX, 20XX.


Aug 9 17

Venue in Georgia for Child Custody Modification

by merlin

The proper venue for an action to modify child custody rights, including physical custody as well as legal custody, is an issue that is controlled by statute in Georgia, under the Intrastate Jurisdiction Act.


OCGA Section 19-9-23 [Action to Change Legal Custody] reads as follows:

“(a) Except as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.

(b) A complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state.

(c) No complaint specified in subsection (a) or (b) of this Code section shall be made:

(1) As a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or

(2) In response to any other action or motion seeking to enforce a child custody order.

(d) The use of a complaint in the nature of habeas corpus seeking a change of child custody is prohibited.” (emphasis supplied)


The issue of which party is the “legal custodian” of the child is controlled by reference to the custody agreement (or existing law, where such is unavailable) which should designate the party that is responsible.