*1 582
S09A2056. DAVISv. DUNN. SE2d Justice. Melton, appeals case, Joan E Davis from the In this election contest County’s Superior fees to Sharon Court of Cobb County Board of Elections and Dunn, the Director of the Cobb Registration.1 follow, we affirm. For the reasons that 2008, that, 13, Davis filed a
The record reveals on November County 4, 2008 election of Cobb Petition to Contest the November Superior contending only “[t]he Judge Kell, C. LaTain Court declaring grounds the for contest are error vote change would the result.” elections, where such error result of (4) (“A primary or election result of a See OCGA declaring [f]or votes or ... contested election, if error would or such result result.”). by Judge 24,462 votes, and Davis did Kell won the election (a) (8), required by specify petition, not any in her error occurred that basis for her belief that a changed have the election results. See (1) (435 923) (1993) (a petitioner in an election 514, Ga. §by allege prove “required some contest is [his her] belief that an error factual basis or ‘cause’for prohibits [because] [s]ection 21-2-524 the con- occurred . . . cause”). merely speculating guessing as to such a testant from deficiency petition, Despite on the face of her at a December according petition, that, Davis contended 4, 2008 on her County posted reading results on the Cobb Board her of the election site, the number of votes counted for various of Elections web registered actual number of voters those districts exceeded the contended because the web site districts. She also by precinct, properly down the number of cast absentee ballots break by County easily manipulated the vote results Cobb could having precincts from the failed to add absentee ballots to the returns received
from which the ballots were cast. See OCGA (“The by each shall see that the votes shown precinct ballot are added to the return received from ballot”). reality, casting However, the web site the elector printout upon by more votes were relied Davis did not show that registered existed; counted than the number of voters the number of absentee manner in which the web site broke down anything any alleged reflect, with, to do failure voters did not or have relating to the election contest at This Court dismissed as moot Davis’ other claims order dated October *2 pre- received from various to add absentee ballots to the returns Indeed, does not dictate the manner cincts. displayed site, and on a web
which absentee ballots are to be displayed has ballots are on a web site manner absolutely which absentee bearing any taken action that has or has not been no adding superintendent respect by with the elections precincts.2 More- received from the relevant ballots to the returns specifically results found that the election over, the trial court discrepancy reflected no between on the web site registered voters, and and the number of number of votes cast guess [any] as to how Davis had left “the court to further found that site] display [in on the web of absentee ballots opponent by gap might and her 24,462 vote between Davis close the Davis’ The trial court then dismissed even one vote.” (a). Dunn to OCGA awarded (a), § 9-15-14 Under OCGA attorney’s expenses necessary fees and
reasonable litigation any party against whom shall be awarded to claim, defense, or other another has asserted a complete position respect existed such a with to which there justiciable any of law or fact that it could absence of accept reasonably that a court would not be believed position. claim, defense, asserted or other clear that it “will affirm a cases,
In this Court has made (a) ‘any ruling if there is court made under OCGA lower (Citation omitted.) Delaney, support (656 Kendall v. it.” evidence’ to (Board 812) (2008) of Education election 34, Ga. contest). support the trial court’s Here, there was evidence a com- claims that exhibited “such that Davis asserted conclusion plete justiciable any could not issue of law or fact that it absence of the[m].” accept reasonably that a court would believed (a). any Specifically, presenting instead of support any doubt on the claim that would cast basis or evidence to election, Davis vote in the November of even a by portion transcript 5 lends regard, cited the dissent its footnote In this any support presented claim under that Davis no to the assertion context, proper that the election (j). it becomes clear 21-2-493 When viewed its where, site, merely testifying on the web absentee ballot was about official at the being displayed reporting purposes,” that had and not about information information was “for with anything any not taken actions that were or were to do fact, question any requirements (j). as Davis continued under OCGA site, displayed was on the web manner in which the information the official about the report [Davis,] you way “Basically, you saying that this don’t like the official testified: are works.” presented site information that had the trial court web
instead miscounting mishandling nothing or the do of votes to with circumstances, we conclude that Under these absentee ballots. supported that “it could not be the trial court’s conclusion evidence reasonably accept [Davis’] claim[s].” Id. that a court would
believed supra (reversing Compare award presented losing party actual evidence 9-15-14 where by persons handled number of ballots had been that a sufficient *3 of the election could have to do so such that the result authorized affected).3 awarding attorney in The trial court did not err been Dunn. to
Contrary assertion, does to the dissent’s “raise[s] proposition a time a stand for the not previously ha[s] statutory interpretation not been ana- issue that lyzed to court,” an award of losing § Ellis, In two candidates 9-15-14 is unwarranted. OCGA (one County County Board one for Walker for Sheriff of Walker Education) alleging superintendent, the elections and a voter sued optical scanning may created machine that a malfunction of an Although petitioners counting in of the votes. an error actually malfunc- no evidence of a machine admitted that tioning, they had (c), they argued that, under OCGA 21-2-524 required in entitled to with order to be to come forward (c), interpreted by 21-2-524 which had not a recount. OCGA prior Ellis, states that this Court to counting
[w]hen as a an error in the of votes ground generally to state contest, it is sufficient for the contestant error was committed
that he or she believes that filling for the of the votes cast against dispute, for or nomination or office or specified precincts; question dispute, one or more necessary evidence to it shall not he the contestant offer allegation. substantiate such argues petition her to assert a claim under The dissent that Davis could have amended (1) [m]isconduct, fraud, (“primary [for] or or election be contested place any primary change irregularity hy or in doubt or election official or officials sufficient result”). However, required by (g) 21-2-524 never amended her (“any petition may be amended with leave the court so as such a claim. See id. . .. to assert contest”) grounds (emphasis supplied). specification Further of additional to include the more, above, support present any factual basis or evidence to as stated Davis failed to allegation of even a election officials that would have affected the of misconduct “[m]isconduct, fraud, raise, support let alone evidence of vote to the claims that she irregularity by any primary or election official or officials sufficient to required under an OCGA 21-2-522 claim that she doubt the result” as would have been did not even raise. (c). supplied.) (Emphasis 21-2-524 responded simply rely speculation (8), petitioners could not why they “offer facts as to claims, but had to of their 263 Ga. at had occurred.” an error in
believed (a) (8) (“A petition contest the also OCGA 514. See among things,] allege[, other . . . shall or election result of provide particular, necessary full, [s]uch other facts as are contest.”). light of the unre- explicit the cause of statement of statutory competing potentially these two conflict between solved (OCGA (c)), provisions this Court and 21-2-524 by explaining that sections the two Code harmonized (c) by construing given
meaning focusing only it as can be burden on the contestant’s actually an error of whether
ultimate fact (c) relieves a contestant Subsection occurred. *4 proving alleging in an actual error and burden of counting if not be difficult occurred, burden would as that requested carry impossible recount. to without generally that an his or her belief need state contestant meaning hand, can be On the other did in fact occur. error given (a) (8), error of an in the context to 21-2-524 underlying require construing counting, by an it to in to state the contestant that has led basis or “cause” factual generally an actual in fact that belief the ultimate his or her (a) (8) prohib- 21-2-524 Section occurred. error guessing speculating merely as to the contestant its a cause. (1). Id. at 515-516 judgment of favor trial court’s affirmed the then
This Court petitioners holding had not met their superintendent, that the allege prove some “to 21-2-524 under OCGA burden error belief that an for their basis or ‘cause’ factual trial However, we reversed the Ellis, 263 at occurred.” court’s to the § interpre- appellants’ on their was based contest because the (c), never section had that Code because tation language interpreted court, and because (c) appellants’ arguable support provided for the subsection [that to offer evidence did not have contention allegations]. their substantiate (2).
Id. at 517 not reverse the award Ellis, this Court did Thus, (c) interpreted simply had not been fees up because presented petitioners point, had but because the to that provided support interpretation claim for their of the statute that requirements 9-15-14, of OCGA a manner consistent any justiciable complete issue of “such a absence did not exhibit reasonably would believed that a court it could not be law or fact that (a). accept Since this Court’s claim.” OCGA 9-15-14 the asserted (1) attorney fees an award of Ellis, it has been clear that decision permissible in an election contest 9-15-14 is (2) (see petitioner supra),4 in an election contest Kendall, speculation guesswork rely when it comes not asserting on mere has error for their belief that a “cause” “any evidence” stan- Moreover, did not our occurred. Ellis met) (which undoubtedly to be a low threshold dard of review appeal. upholding fees on See an award of supra. (j), presented citing despite no to OCGA 21-2-493 Here, only speculation, underlying her belief basis, but present any did not had occurred. She that a interpretation plain language of OCGA of the contention[s]” [her] “arguable support provided even (see (2)), evidence that she at 517 (1) relationship presented bore no to the trial court (j), requirements did not in OCGA 21-2-493 set forth *5 missing she was 24,462 of the votes that in doubt a vote contrary up Judge Indeed, to the dissent’s Kell. order to catch type where an award of this is not the of case conclusion that § upheld attorney’s pursuant should be on to OCGA 9-15-14 fees “any exactly type appeal, where the evidence” of case this previous connection, today departure “marked from our our decision is not a this impose attorney unequivocally fees.” decided not to election contest decisions which we have attorney cases, simply prior award of fees. See the facts did not warrant an In those attorney say under that supra; supra. that fees are not available facts This is not to Indeed, pursuant § 9-15-14. the dissent does not an award of such fees to OCGA would warrant attorney any legal explanation provide for its conclusion that fees basis And, light “judicial § election contest.” of our should not be available in a OCGA 9-15-14 allowing plain language award of fees in of OCGA 9-15-14 for an case law and the contest, pressed of to do so. In order to make some sort election the dissent would be hard an “judicial prohibiting 9-15-14 in exception the award of holding contests,” ignore prior law that OCGA 9- Court would have to our case election this cases, graft legislative exception applicable a onto contest and would have to 15-14 is election engaging in simply This Court is forbidden from 9-15-14 that does not exist. 252) (2006) (“[U]nder Fielden, system our exercise. State v. statutes.”). authority separation powers to rewrite this Court does duty to affirm the met, and where it is this Court’s standard has been appeal. fees on except Judgment concur, Hunstein, All the Justices affirmed. Benham, J., J., dissent. C. who BENHAM, Justice, dissenting. majority opinion’s respectfully disagree decision to (a) attorney the trial court’s award of OCGA affirm pre- petition hearing, judicial Davis election. At the this contested county irregularity had occurred when the evidence that an sented (j). That to OCGA 21-2-493 officials failed to adhere specifically requires to add of elections statute precinct. return of the elector’s ballot to the election each absentee In this argued case, the trial court that she believed Davis comply when with OCGA 21-2-493 election officials failed to precinct report the elector. ballots in the failed to official, official the election When Davis cross-examined the election reported in absen- an artificial confirmed that absentee ballots precinct precinct of the elector as tee rather than indicated statute.5 compliance
Coupled with OCGA about with her concerns (j), female, raised Davis, who is an African-American county’s impact actions on African- concerns about people Anecdotally, large who voted number American voters. cycle
early were African-American 2008 election the November the election officials’ therefore, cast absentee ballots. Due to and, precincts, report electors’ actual the absentee votes failure to any dispari- opined whether it was difficult to determine Davis early. their ballots for minorities who cast ties had occurred generally Although on was based Davis’s initial (5), provides the the candidate can contest “any cause,” was entitled to contest other election for “irregularity for an election under county transpired following colloquy election official between Davis *6 cross-examination: 51,223 people opponent], Q. page [her the who voted for Davis and On absentee, precincts? reported back to the individual are those results precinct. They are in the absentee A. No. live, Well, they Q. precincts which one is that the are where if we indicate that one? separate precinct. up, reporting purposes, Those are as a A. Absentee is set Secretary Office. from the of State’s our directions absentee, voting people Q. just who are sure I understand. The I want to make put precincts; into an are are not sent back to their individual their votes precinct? Right. A. or officials sufficient or election official supplied). (emphasis The fact in the result.” OCGA
doubt upon petition irregularity in her issue that Davis did not raise necessarily moving filing with her a bar to forward was not (see (g)). Because Davis an amended basis OCGA actually court and because the trial the issue at the raised irregularity any alleged analyzed in its effect of considered and majority’s agree conclusion that order, I dismissal cannot warranting any justiciable present the award of issue failed to attorney fees. (435 923) (1993), which Johnson, SE2d
In Ellis v.
petition,
upon
this Court
dismiss Davis’s
trial court relied
non-prevailing
attorney
imposed
fees
on the
the award of
reversed
statutory interpretation
raised a
because the contestant
contestant
any
analyzed by
previously
Likewise,
been
interpreting
court.
that had not
county
appear
meets the
how a
to be no cases
there
requirements
investigation
(j)
any
of how the
21-2-493 or
of OCGA
may impact minority
county’s
practices
voters. Inasmuch
election
county
upon
to determine whether
called
the trial court
Davis
complied
noncom-
and the effect of
with OCGA 21-2-493
justiciable
play.
pliance,
issue in
Id.
was a valid
there
approved
has never
an award
aware,
As
I am
this Court
far as
judicial
I see
election contest and
fees
statutory
today. First,
scheme for election
do so
no reason to
already contemplates
of costs when one
the allocation
contests
prevails
21-2-529)
(see
and I believe that
the other
over
provision
abuse
contestants
sufficient to deter
untoward
opening up
imposition without
this Court
election cases
important,
this decision
under OCGA 9-15-14. More
departure
previous
election contest decisions
from our
is a marked
impose
unequivocally
not to
fees.
we have
decided
(2008) (board
Delaney,
v.
challenging and sanction Such a harsh voting irregulari- challenges post-election valid will also stifle unfairly impact and citizens. Instead contestants ties which becoming discourage imparting active citizens decisions pursuits. encourage judges, public especially must these life, we Accordingly, trial court’s award I would reverse the fees. joins in this Justice Hunstein to state that Chief am authorized
dissent. 1, March 2010.
Decided appellant. Davis, P. for
Joan Haynie, Gregg Douglas Haynie, E. Crane, R. & Litchfield appellee. White, for Daniel W. Litchfield, v. KURIATNYK. KURIATNYK S09F2030. Presiding Justice. CARLEY, (Hus- (Wife) Kuriatnyk Kuriatnyk
Dayna Richard Michael band) After their lived in Florida. in 2007 and were married Georgia. April moved to 2008, and the child Wife child was born Georgia brought on December this divorce action Wife complaint Florida, but verified served with the Husband was any motion or answer. not file “upon decree, a final divorce court entered
The trial legal awarding provided sole law,” to Wife submitted as custody parties’ physical child, child as well as per or, in motion to set aside Husband filed a month.
amount $750 an order court entered trial. The trial alternative, for a new depositions, any supporting noting affidavits, absence of stating pleadings, Aside is Motion to Set that “the verified Husband Trial is DENIED.” for New DENIED and the Motion granted pursuant discretionary applied to our review, we Project in cases. Pilot divorce initially appeal raised enumerations
All of Husband’s post-judgment post-judgment to which the motion. The extent upon depends whether the aside new trial or to set motion was for a set aside under to a motion to issues raised related