It’s Not Where You Live, It’s When You Lived There (Warning – Some Material May Be Seen as Law-Nerdy)

Plummer v. Plummer, S18G0146, January 22, 2019, Supreme Court of Georgia

Father and Mother lived in Georgia and were divorced in Georgia, and the Georgia court decided custody.  Mother moved to Florida. Father, still in Georgia, asked the Georgia court to modify custody in 2015.  In 2016, Father was relocated by the Navy to Virginia.  Shortly after the relocation, the Court entered a temporary order in Father’s favor. Thereafter, Mother moved to dismiss, because no one lived in Georgia anymore. The trial court granted the motion. Father asked the Court of Appeals to weigh in, and it affirmed.  Up to the Supreme Court of Georgia it went, and it all got reversed.

The Supreme Court focused on jurisdiction being established at the time of filing.  Under the Uniform Child Custody Jurisdiction Act (“UCCJA”), adopted by Georgia, DC, and 48 other states, a court has “exclusive, continuing jurisdiction.”  The court noted that both the comments to the statute and the decisional law of every state that has addressed the issue state that jurisdiction is established at the time of filing. The court added that “time of filing” is the applicable jurisdictional principal in other domestic relations cases and general principles of jurisdictional jurisprudence.  (21 CJS Courts § 90, 20 AmJur2d Court § 96.)

Here’s where the law-nerd stuff starts.  Three justices filed a three-page concurrence in which they argued that, although they agree with the conclusion, they cannot agree with at least some of the rationale.  Specifically, the concurrence rejected the notion of relying on the comments of those who drafted the legislation:  “Comments of this sort may be persuasive as scholarly commentary, but we ought not to consider them as evidence of uncodified drafter’s intent.” The concurrence also took issue with the majority’s interpretation of “Uniform” as calling for any sort of uniformity:  “That the courts of another state later interpret similar language in a particular fashion cannot change the meaning of Georgia law.”  Although I understand the concept of rejecting an intent inquiry on facts/items that didn’t exist at the time legislation was passed (e.g., does the Second Amendment apply to grenade launchers), concurrent statements of interpretation, in my view at least, while not binding, are certainly the sort of thing that help courts understand the law. This is especially so where uniformity is called for.

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Here’s Your Default. Have Fifty Bucks.

Rivers v. Rivers, A18A1725, January 16, 2019, Court of Appeals of Georgia

Tammy served a continuing garnishment (arising out of a $590,000 judgment) against Steven and his employer. Garnishee filed a timely initial answer, and then no further answers during the garnishment period.  Tammy moved for entry of default judgment arising out of the failure to file the subsequent answers. Finding that Tammy waited too long too pursue the remedy, the court denied her motion and dismissed the action.  Tammy appealed and the Court of Appeals vacated and remanded.

The court first noted that under § 18-4-43 (a), failure to answer a continuing garnishment every forty five days serves as the basis for automatic default (which could be opened as a matter of right).  As to Tammy’s  multi-month wait to seek a judgment, “such delays are certainly not encouraged,” but the court noted the statute did contain the unmodified words “anytime thereafter.”  The court rejected the argument that the trial court had “inherent power” to dismiss the proceeding, because of the plain language of the statute. The court also rejected garnishee’s argument that a checkbox on the clerk’s garnishment form counteracted the language of the statute.

The puzzling part of this otherwise pedestrian default case concerns what’s going to happen next.  Garnishee argued, correctly, that all that would happen is that the case would be remanded, a default would be entered, and Garnishee would as of right under OCGA § 18-4-24 (a) get the judgment reduced to $50.00. Although the court recognized that certainly was very likely to happen, it could not find mootness on the basis of a future event.  The puzzlement is this:  the $50.00 outcome would be known to Tammy all along.  Tammy was on appeal protecting a half-million dollar garnishment.  Tammy had nothing, and paid someone to spend a few months getting her $50.00.

Georgia Court of Appeals Endorses USPS Over Private Carriers

Sometimes the temptation to follow the easy path of default judgment causes an attorney to stray off the straight and narrow path of, well, serving the lawsuit.  In Turfstore.com, Inc. v. Hall, A18A1664, Court of Appeals of Georgia, January 15, 2019, the court again demonstrated what happens  to those who give into that temptation, and also the temptation of using a private carrier when the U.S. Postal Service does just fine.

Plaintiff sued Defendant. Plaintiff concluded that Defendant did not have a registered agent in Georgia so Plaintiff availed itself of O.C.G.A. § 14-2-1510 (b) and (c), which govern service on an out-of-state corporation who does not have a registered agent. Plaintiff served the defendant using a statutory overnight service (not the U.S. Postal Service), who received the service package on September 15, and delivered it to a company that was not the Defendant on September 19.  That company forwarded it to the Defendant on January 4 of the following year. Coincidentally (and that is not a sarcastic use), Plaintiff sought entry of default judgment on January 3, based on what Plaintiff contended was a service date of September 15 or September 19.  The trial court entered default judgment, and the Defendant appealed.

The Court of Appeals reversed.  As an initial matter, the court explained that if there is no perfected service, there is no default. Thus, the issue was whether service was perfected. Quoting the governing statute, the court identified three ways to establish the date of perfection:  “: (1) The date the foreign corporation receives the mail; (2) The date shown on the return receipt, if signed on behalf of the foreign corporation; or (3) Five days after its deposit in the United States mail.”  Section (1) would have set the service date as January 4.  Section (2) didn’t apply at all.

It would appear Plaintiff’s only hope was for the Court of Appeals to read the words “United States Mail” as meaning “United States Mail or any other delivery service.”  Not surprisingly, the court did not take up the invitation, stating “While a commercial firm such as UPS can provide an acceptable means of ‘statutory overnight delivery’ service, it is not ‘the United States mail.””  Hard to fly in the face of plain language.

This entry has been brought to you by the U.S. Postal Service. (Whose motto, in this case, could be stated as:  it might not get there, but under Georgia law you can claim it did.)

Slow Court Day, But Georgia Legislature Is Considering the Repeal of Prohibition

From time to time, nothing will be going on in the various courts I like to follow, but I don’t want to lose article-a-day momentum so I look elsewhere.  Because today is the first day of the legislative section, thought it would be fun to look at the pre-filed top-of-the-pile stuff bouncing around the Georgia chambers.

First up is HR 4, seeking to approve the repeal of the 18th amendment (prohibition, in case you were wondering) because “while a sufficient number of states have ratified this proposed amendment to make this amendment effective and a part of the Constitution of the United States, this state has never ratified this amendment.”  What if it doesn’t pass?

Next there’s HB 5, which I will call the “your salary doesn’t matter act.” This act prohibits a prospective employer from relying “on the salary history of an applicant in determining the wages, benefits, or other compensation for such applicant during the initial hiring process, including the negotiation of an employment contract.” It even creates a cause of action against an employer who does so.  I guess, if this one passes, it’s going to be awfully hard to tell a recruiter that you’ll leave your current job if you can get more money. I am certain I am missing something.

Let’s end with HB 2, which has got to be deemed the “protection against the evil that resides  in the heart of men” act.  Tell me at what point in the preamble you know where this one is headed:

(1) Our founding fathers, in the unanimous Declaration of Independence of the 13 United States of America, acknowledged that the purpose of civil government is to secure God-given rights;

(2) As such, civil governments are to punish the criminal acts that deprive their citizens 25 of their God-given rights to life, liberty, and property;

(3) The mere potential to deprive someone of life, liberty, or property should never be 27 considered a crime in a free and just society;

(4) Evil resides in the heart of the individual, not in material objects; and

(5) Since objects or instrumentalities in and of themselves are not dangerous or evil, in a  free and just society, the civil government should not ban or restrict their possession or use.

Can you guess what “objects and instrumentalities” are the subject of the bill?

If there are more slow court days, I’ll continue to give you information on similar gems.

When Your Mistress Kills Your Wife Without Your Involvement You Can Still Inherit From Your Wife

Buster was married to Sandra in 1987, but the marriage fell upon hard times and ultimately Buster filed for divorce.  Buster, at that time, had a girlfriend Lisa. Lisa kidnapped Sandra, and then killed Sandra and herself. Both Buster and Sandra’s sister Donna sought control of Sandra’s estate.  Donna invoked Georgia’s “slayer statute,” OCGA § 53- 1-5, which in essence prohibits someone from inheriting from their own murder victim.  Buster sought and received summary judgment on the issue of whether the statute applied, arguing that there was no evidence he killed Sandra.  The trial court granted the motion and this appeal followed.

The Court Appeals, In re Estate of Sandra Elaine B. Barnett, A18A1969, Court of Appeals of Georgia, January 10, 2019, affirmed.  After quoting the statute, the court explained “OCGA § 53-1-5 requires some form of judicial condemnation to divest a murderer or his or her interests from the murdered decedent’s estate.” . . . . This may happen “either through a criminal proceeding, i.e., final judgment of conviction or a guilty plea, or through a civil proceeding establishing a felonious and intentional killing by clear and convincing evidence.” (Citation omitted.)   The court concluded that the evidence relied on by Donna, was at most speculative:  “[Donna]only speculates that Buster had the motive to kill Sandra to avoid losing assets in the divorce, that he knew about Brown’s violent tendencies and criminal background, and that Brown was angry that Buster and Sandra were planning to take a trip together. No evidence has been presented that Buster knew about Brown’s plans to kidnap Sandra, that he encouraged her to do so, or that he had done anything else to make himself a party to Brown’s criminal acts.”

I’m thinking Christian Bale for Buster, Jennifer Lawrence for Sandra, Amy Adams for Lisa, and Frances McDormand for Donna.

Court Unzips “Other Acts” Evidence Under Georgia’s Rules 403 and 404(b)

Though I mostly discuss civil cases, the Rules of Evidence govern all cases.  In State v. Isham, Court of Appeals of Georgia A18A1621, January 10, 2019, the court addressed the parameters of Rules 403 and 404(b) and the admissibility of other acts evidence.  Isham was indicted for rape (among other things) allegedly committed on or before July 21, of a woman he met at a shopping center. Among Isham’s defenses was consent.  The State sought to introduce evidence that, on July 23, Isham exposed himself to a different woman at the same shopping center. After a pretrial hearing, the trial court excluded this evidence, and the State appealed.

The Court of Appeals affirmed.  After noting that Georgia law tracks federal law as to Rule 403, and that the Eleventh Circuit has established a three part test for other acts evidence, the court focused upon the balance between probative value and undue prejudice.  Although the court did agree that the incident might have probative value, the court ultimately concluded that if admitted, evidence of the incident would expose Isham to undue prejudice, noting “admission of it in the underlying prosecution ‘would likely produce an irrational response from the jury’ and carried ‘a likelihood the jury may convict [Isham] of the charged behavior because of the other perverted behavior in which he has participated which might cause the jury to conclude the defendant had a propensity to commit the far more serious crimes charged.’” Finally, the Court noted that the trial court left open the possibility of reexamining the issue during trial.

Though decided in the context of criminal case, the Court of Appeals highlighted an important principle: if evidence is of the type that when taken out and shown to the jury, would cause the jury to focus solely on that evidence, and not the actual issue in the case, then that evidence must remain zipped up.

The Case Of The Disappearing Hearing – No Summary Judgment By Default

HOLLADAY v. CUMMING FAMILY MEDICINE, INC., Court of Appeals of Georgia, A18A2070, January 9, 2019.

On March 5, Plaintiff moved for summary judgment. On March 16, the Court issued a Rule Nisi setting a hearing for April 24, although neither party requested the hearing).  Defendant did not file a response to the motion. On April 11, the Court granted the motion for summary judgment. Defendant appealed on the ground that it was deprived of its opportunity to be heard. The Court of Appeals vacated the grant of summary judgment to allow for oral argument.

In vacating, the court emphasized the longstanding principle that “a party’s failure to respond to a motion for summary judgment does not waive the right to present oral argument on the motion; the party only waives its right to present evidence in opposition to the motion.”  In other words, the mere lack of a responsive brief did not end the inquiry.  The court explained that the reason for a hearing, independent of a brief, is “is to provide counsel with an opportunity to persuade the court and to provide the court with an opportunity to interrogate counsel.”

Given that, the main issue was whether Defendant had the right to rely on the Rule Nisi.  Either party may request a hearing under U.S.C.R 6.3, and if a hearing is requested, it must be scheduled.  Once one party requests the hearing, the other may rely on that request, and not request one on its own. The court explained that “once the trial court issued the rule nisi setting the summary judgment hearing for April 24, 2018, [Defendant] had a right to rely on that hearing date until the trial court vacated or withdrew the rule nisi.”

The takeaway from this procedural decision is simple: Georgia remains committed to the concept that there is no such thing as “summary judgment by default.”