Affatato v. Considine

• Decision Date: 30 August 2010
• Docket Number: No. A10A1564.,A10A1564.
• Citation: 700 S.E.2d 717,305 Ga. App. 755
• Parties: AFFATATO v. CONSIDINE.
• Court: Georgia Court of Appeals

305 Ga.App. 755

700 S.E.2d 717

AFFATATO

v.CONSIDINE.

No. A10A1564.

Court of Appeals of Georgia.

Aug. 30, 2010.

Ichter Thomas, James J. Thomas II, Atlanta, for appellant.

Cecily Considine, pro se.

POPE, Senior Appellate Judge.

The trial court found the defendant, Michael Affatato, guilty of three counts of criminal contempt for violating its prior order requiring him to make certain payments to the plaintiff, Cecily Considine. ¹ AFFATATO APPEALS, arguing that he was improperly denied the right to a trial by jury on the question of whether he and his company lacked the financial ability to make the ordered payments. He also argues that there was insufficient evidence to sustain the trial court's finding that the failure to make the payments was based upon a willful disobedience of the court's prior order rather than an inability to pay. Additionally, Affatato argues that his conviction on the second count of criminal contempt for failure to pay must be reversed because there was no clear and definite court order requiring that specific payment. Because there was no clear and definite court order requiring the payment that formed the basis for the second count of criminal contempt, we reverse Affatato's conviction on that count, vacate his sentence, and remand the case for resentencing on the remaining counts. We affirm the judgment in all other respects.

This lawsuit arose out of a bitter dispute between Considine and Affatato over the right to manage the business and control the assets of a Georgia company known as “Model Master.” ² Alleging that Affatato had “embarked on a campaign ... to systematically dismantle and misappropriate the assets of [Model Master] to the complete exclusion of [Considine],” Considine filed the instant action against Affatato for conversion, unjust enrichment, fraud, and multiple other claims. Responding that it was Considine who had embarked on a campaign to plunder the business assets, Affatato answered and asserted several counterclaims, including claims for fraud and embezzlement.

Given the dispute over control of the business, Affatato and Considine entered into a consent order for the appointment of a receiver to oversee Model Master during the pendency of the litigation (the “Consent Order”). When Affatato subsequently violated the Consent Order and failed to timely respond to Considine's discovery requests, the trial court ordered Affatato to make certain payments to Considine out of both his personal funds and out of Model Master's funds by a specific deadline (the “Sanctions Order”).

Affatato did not meet the deadline for making the payments required by the Sanctions Order, and Considine filed a motion accusing Affatato of several counts of criminal contempt, including counts one, two, and four that were predicated upon his failure to pay her. Affatato's defense was that neither he nor Model Master had the financial ability to make the payments within the deadline imposed by the trial court.

After conducting an evidentiary hearing on Considine's contempt motion, the trial court found Affatato guilty of four counts of criminal contempt, including the counts relating to his failure to pay. Based upon the criminal contempt violations, the trial court sentenced Affatato to fifteen days of imprisonment on each count, with the proviso that five days would be suspended on each count for which he paid a fine.

1. Affatato first contends that the trial court erred in failing to allow a jury trial on the issue of whether he and Model Master lacked the financial ability to make the ordered payments. According to Affatato, he was entitled to a jury trial on this issue pursuant to OCGA § 15-1-4(b), which provides that

[n]o person shall be imprisoned for contempt for failing or refusing to pay over money under any order, decree, or judgment of any court of law or any other court of this state when he denies that the money ordered or decreed to be paid over is in

his power, custody, or control until he has a trial by jury.

Pretermitting whether OCGA § 15-1-4(b) was applicable under the facts of this case, we conclude that Affatato waived his right to demand a jury trial...

The record reflects that Affatato did not request a jury trial in response to Considine's motion for contempt or her two amended contempt motions. Instead, Affatato requested in his response brief that the “court find[ ] that [he] [was] not in willful contempt” and filed a request for a hearing on the contempt motion on a non-jury calendar. The trial court scheduled the hearing as requested, but was unable to reach the parties on that date due to a heavy docket. Consequently, Considine, joined by Affatato, moved to continue the hearing to another non-jury calendar. The trial court again scheduled the hearing as requested. Then, during oral argument at the beginning of that hearing, Affatato pointed out that he had not yet made a demand for a jury trial on the contempt issue and did not believe that he needed to do so at that time. The trial court proceeded with the evidentiary hearing and heard from two witnesses before continuing the hearing to a later date for its completion. Three days later and prior to the reconvening of the evidentiary hearing, Affatato for the first time made a demand for the contempt motion to be heard by a jury, which the trial court denied.

Under these circumstances, Affatato waived his right to a jury trial on the issue of financial inability. In Peacock v. Spivey, 278 Ga.App. 338, 342-343(4), 629 S.E.2d 48 (2006), we held that the plaintiff's demand for jury trial was properly denied on the basis of waiver, noting that the plaintiff “will not now be heard to complain since he himself requested the evidentiary hearing before the trial court and did not demand a jury trial until after that hearing had commenced.” See Griffeth v. Griffin, 245 Ga.App. 619, 619-620, 538 S.E.2d 521 (2000) (demand for jury trial correctly denied where parties agreed to have case heard before special master, but one of the parties then demanded a jury trial during the course of the hearing). The circumstances of the present case are similar to Peacock in that Affatato did not file a jury trial demand until after the evidentiary hearing had commenced, and had previously requested that the contempt hearing be placed on a non-jury calendar and affirmatively joined in a request by Considine that the hearing be continued to a non-jury calendar. Hence, the facts in this case support a finding of waiver. As we have long held, “[a] party will not be heard to complain of error induced by his own conduct, nor to complain of errors expressly invited by him.” (Citation, punctuation and footnote omitted.) Thrash v. Rahn, 249 Ga.App. 351, 352(2), 547 S.E.2d 694 (2001). ³

Affatato nevertheless maintains that he requested a jury trial on the contempt motion when he included a demand for a jury trial in the prayer for relief found in his answer and counterclaims. Read in context, however, it is clear that the jury trial demand in that pleading was a request for a jury trial on the substantive counts of Considine's complaint and Affatato's counterclaims.

Citing to OCGA § 9-11-38 ⁴ and OCGA § 9-11-39(a), ⁵ Affatato also argues that his jury trial demand should have been granted because OCGA § 15-1-4(b) purportedly creates a categorical right to a jury trial that can only be waived by an express written stipulation or an express oral stipulation made in open court and made part of the record. In support of his argument, Affatato relies upon Henderson v. County Bd. of Registration & Elections, 126 Ga.App. 280, 284(1), 190 S.E.2d 633 (1972), an election contest case where we stated in dicta that if “a party has a right to trial by jury under the Constitution or by expressed direction of a statute, ... there can be no implied waiver but only an express waiver of such right.” ⁶

As an initial matter, Affatato's argument operates on a faulty premise because he assumes, incorrectly, that there was no express waiver of the right to a jury trial in this case. As previously noted, Affatato on two occasions expressly requested or affirmatively joined a request to have the contempt motion placed on a non-jury calendar. In any event, we recognized in Goss v. Bayer, 184 Ga.App. 730, 731-732(2), 362 S.E.2d 768 (1987), that Henderson must be limited to its facts and must otherwise yield to Supreme Court of Georgia precedent holding that, in addition to an express waiver in the manner set out by statute, the right to a jury trial can be impliedly waived by conduct. See Holloman v. Holloman, 228 Ga. 246, 247-248(1), 184 S.E.2d 653 (1971). See also Wilson v. Wilson, 282 Ga. 728, 734(7), 653 S.E.2d 702 (2007); Fine v. Fine, 281 Ga. 850, 851-852(2), 642 S.E.2d 698 (2007); Barner v. Binkley, 304 Ga.App. 73, 75(3), 695 S.E.2d 398 (2010). Accordingly, contrary to Affatato's assertion, a litigant may impliedly waive the statutory right to a jury trial by his conduct, which, at the very least, is what occurred in this case. The trial court, therefore, did not err in failing to submit the issue of financial inability to the jury.

2. Affatato next contends that there was insufficient evidence to sustain the trial court's finding that his failure to timely make the ordered payments was based upon a willful disobedience of the court's prior order rather than financial inability. We disagree.

Financial inability to pay is a defense to criminal contempt for violation of an order requiring the payment of funds. Harrell v. Federal Nat. Payables, 284 Ga.App. 395, 398(3), 643 S.E.2d 875 (2007). The burden is on the contemnor to prove that he was financially unable to make the ordered payment. Hamilton Capital Group v. Equifax Credit Information Svcs., 266 Ga.App. 1, 4(2), 596 S.E.2d 656 (2004).

Inability to pay is a defense only where the contemnor demonstrates that he has exhausted all resources and assets available and is still unable to

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