Mansour Elsayed v. Losseni Bakayoko

FIFTH DIVISION
MCFADDEN, C. J.,
RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
April 1, 2021
In the Court of Appeals of Georgia
A21A0124. ELSAYED et al. v. BAKAYOKO.
MCFADDEN, Chief Judge.
Mansour Elsayed sued Losseni Bakayoko for breach of an oral agreement.
Bakayoko filed counterclaims against Elsayed. After a bench trial, the trial court
entered judgment for Bakayoko on one of his counterclaims, for Bakayoko on all of
Elsayed’s claims, and against Bakayoko on his other counterclaims. The court also
awarded Bakayoko attorney fees.
Elsayed filed this appeal. He argues that the trial court erred by failing to
appoint an interpreter, but he has not shown reversible error. He argues that the
evidence does not support the judgment in favor of Bakayoko on Elsayed’s claims,
but some evidence supports it. He argues that the trial court erred by refusing to admit
certain police reports into evidence, but he did not proffer the excluded evidence at
trial so we presume that the trial court’s ruling was correct. He argues that the trial
court erred by awarding attorney fees to Bakayoko. We hold that the attorney fee
award must be vacated because the trial court did not specify the statutory basis for
the award. So we affirm the judgment but vacate the attorney fee award and remand
for further proceedings.
1. Factual and procedural background.
“A trial judge sitting without a jury is entitled to have [her] judgment
considered as a verdict by a jury, and if there is any evidence to support the finding,
it should be affirmed. Also the evidence must be construed most strongly in favor of
the prevailing party.” Broadcast Concepts v. Optimus Financial Svcs., 274 Ga. App.
632, 635-636 (3) (618 SE2d 612) (2005) (citations and punctuation omitted).
So construed, the evidence shows that Elsayed owns a used car dealership and
Bakayoko is a mechanic. In 2016, they entered a verbal agreement under which
Bakayoko would perform his work at Elsayed’s car lot. They agreed to evenly split
the revenue from Bakayoko’s services, whether Bakayoko worked on Elsayed cars
or cars from his own customers. The agreement ended at the end of March or the
beginning of April, 2018.
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Elsayed filed a claim against Bakayoko in magistrate court seeking to recover
revenue that he alleged Bakayoko owed him. Bakayoko answered and filed a
counterclaim. Because Bakayoko sought damages that exceeded the magistrate
court’s jurisdictional limit, the case was transferred to the state court.
In the state court, Elsayed filed a pro se, handwritten document asking the court
to reschedule a court date and “also request[ing] a translator from English to Arabic
and Arabic to English to help [him] and [his] witnesses in this case.”1 The court
addressed one of Elsayed’s requests — she granted a continuance — but she did not
address his request for a translator. Court-ordered mediation was unsuccessful, so the
court conducted a bench trial.
After hearing the testimony of Elsayed and Bakayoko, the trial court entered
a judgment. The trial court rejected Elsayed’s claims and Bakayoko’s monetary
counterclaims. But she found in Bakayoko’s favor on his claim for the return of a car
in Elsayed’s possession. The court also awarded Bakayoko $7,500 in attorney fees.
Elsayed filed this appeal.
1
Elsayed requested a translator, not an interpreter, but from the context it is
clear that he intended to request an interpreter. Translators translate written text while
interpreters interpret spoken or sign language. See American Translators Association,
https://www.atanet.org/client-assistance/translator-vs-interpreter/ (retrieved March
5, 2021).
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2. Failure to provide an interpreter.
Elsayed argues that the trial court erred by denying his request for an
interpreter without conducting an examination of him on the record. We hold that
although the trial court did not engage in all of the formality contemplated in the
Georgia Supreme Court Rules for the Use of Interpreters for Non-English Speaking
and Hearing Impaired Persons, Elsayed has not shown reversible error, given that
Elsayed himself informed the court at trial that he did not need an interpreter and then
never clearly requested an interpreter again.
Recognizing that “the use of qualified interpreters is necessary to preserve
meaningful access to the legal system for persons who speak and understand only
languages other than English,” our Supreme Court “exercised its inherent and
constitutional authority to promulgate rules establishing a statewide plan for the use
of interpreters in proceedings in Georgia courts.” Ling v. State, 288 Ga. 299, 300 (702
SE2d 881) (2010) (citations and punctuation omitted). Under those rules, a judge
must provide an interpreter for a non-English speaker who “cannot understand and
speak English well enough to participate fully in the proceedings and to assist
counsel.” Georgia Supreme Court Rules for the Use of Interpreters for Non-English
Speaking and Hearing Impaired Persons, Appendix A, Uniform Rule for Interpreter
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Programs, Rule II (A), Rule for Foreign Language Interpreters (“Interpreter Rules”).
See also Interpreter Rules, Rule IV (B) (“Each non-English speaking party shall have
the right to an interpreter at each critical stage of the proceedings [in civil cases] at
no cost to the non-English speaking person.”). The Interpreter Rules state that a judge
should conduct an examination on the record to determine whether an interpreter is
needed when: “(1) a party or counsel requests such an examination; or (2) it appears
to the decision maker that the party . . . may not understand and speak English well
enough to participate fully in the proceedings[;] or (3) if the party . . . requests an
interpreter.” Interpreter Rules, Rule II (B). The judge should ask questions
concerning:
1. Identification (for example: name, address, birth date, age, place of
birth); 2. Active vocabulary in vernacular English (for example: “How
did you come to the proceeding today?”, “What kind of work do you
do?”, “Where did you go to school?”, “What was the highest grade you
completed?”, “Describe what you see in the room”, “What have you
eaten today?”). Questions should be phrased to avoid “yes or no”
replies; 3. The criminal or civil proceedings (for example: the nature of
the charge or the type of proceeding, the purpose of the proceedings and
function of the decision maker, the rights of a party or criminal
defendant, and the responsibilities of a witness).
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Interpreter Rules, Rule II (C). The judge should then state on the record whether an
interpreter is needed. Interpreter Rules, Rule II (D).
Uniform State Court Rule 7.3 establishes the procedure for a party in a civil
case to obtain a court-appointed interpreter. Subsection A provides in pertinent part:
In all civil . . . cases, the party or party’s attorney shall inform the court
in the form of a notice of the need for a qualified interpreter, if known,
within a reasonable time—at least 5 days where practicable—before any
hearing, trial, or other court proceeding. Such notice shall be filed and
shall comply with any other service requirements established by the
court. The notice shall (1) designate the participants in the proceeding
who will need the services of an interpreter, (2) estimate the length of
the proceeding for which the interpreter is required, (3) state whether the
interpreter will be needed for all proceedings in the case, and (4)
indicate the language(s), including sign language for the Deaf/Hard of
Hearing, for which the interpreter is required.
Uniform State Court Rule 7.3 (A). Even absent notice of the need for a qualified
interpreter, however,
the court shall appoint a court interpreter whenever it becomes apparent
from the court’s own observations or from disclosures by any other
person that a participant in a proceeding is unable to hear, speak, or
otherwise communicate in the English language to the extent reasonably
necessary to meaningfully participate in the proceeding.
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Uniform State Court Rule 7.3 (D). “The use of interpreters is within the sound
discretion of the trial court.” Choi v. State, 269 Ga. 376, 377 (3) (497 SE2d 563)
(1998).
The record does not reflect that the trial court nor Elsayed’s counsel took any
action on the pro se, written request for an interpreter prior to the bench trial. But the
use of an interpreter or translator was referenced three times at the trial. The first time
came at the beginning of the trial. Before the court heard the parties’ opening
statements, counsel for Elsayed informed the court that she had “one outstanding
issue to just delve into.” She told the court that she had asked for an interpreter for
Elsayed, and an interpreter had been there on Monday (although the record does not
make clear what had transpired on the Monday before trial nor does the record
include any request for an interpreter from the attorney). Counsel explained that she
did not want Elsayed to misunderstand difficult cross-examination questions. Counsel
for Bakayoko responded that they had addressed the issue previously when the parties
engaged in mediation. There, he explained, Elsayed said he needed an interpreter and
an interpreter had shown up, but as the mediation continued, Elsayed said he no
longer needed an interpreter so the interpreter left.
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The court responded, “It sounds like he may be able to understand for the most
part . . . everything that is said.” Elsayed responded, “That’s what I just say before.
I can understand, but sometimes the law stuff I cannot understand.” He added,”I’m
sure I can handle it.” The trial court asked Elsayed his native language. He responded
Arabic. The court stated, “Arabic. Okay. Well, you and I are speaking and
communicating very well. If at any time you do not understand or need counsel[] to
repeat or speak more slowly, then we can do that.” Counsel then gave their opening
statements and the trial proceeded.
Although the trial court did not ask Elsayed questions about all the topics
contemplated in Interpreter Rules, Rule II (C), she did address the issue with Elsayed
on the record as required by Interpreter Rules, Rule II (B). And given Elsayed’s
statement that he could “handle it,” we cannot say that the trial court abused her
discretion by failing to appoint an interpreter at this point in the proceedings.
The second time an interpreter or translator was mentioned at trial was during
counsel’s direct examination of Elsayed. His attorney asked him whether Bakayoko
had been a partner in the business. Elsayed answered, and the court sought
clarification, asking, “Is he a partner?” Elsayed responded, “He’s kind of what — he’s
partner in work. So if I give him — like we met finally income in the work and in the
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sales. This amount I give him his part. But he’s not included in the business.”
Elsayed’s attorney commented,
Excuse me, your Honor. This is where I think there’s a cultural, you
know, connotation that I think an interpreter or a translator would really
helped with which is what we were hoping for because culturally
speaking, in the Muslim world, culturally — and Mr. Bakayoko is a
Muslim as well — you are considered to be a partner as long as you are
working with someone and working for your own means and not an
employee, but legally it wouldn’t be considered an actual partnership.
The court responded, “Thank you.” Elsayed’s counsel did not request an interpreter
nor did she invoke a ruling by the trial court.
The third instance arose when his attorney asked Elsayed to identify an exhibit.
Elsayed responded, “This is police report. I came early in the morning. I found that
three of my cars blocked the entrance. It got moved.” The trial court instructed
Elsayed just to identify the exhibit. He identified it and then commented, “I’m sorry.
That’s the reason I need the translator.” The court responded, “You can understand
English very well, Mr. Elsayed.” His attorney stated, “He’s just nervous.” Again, trial
counsel did not request an interpreter or invoke a ruling.
The better practice, once Elsayed requested an interpreter, would have been for
the trial court to follow the Interpreter Rules by questioning him on the record on the
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topics suggested in the Rules and then stating on the record her determination of
whether or not Elsayed could understand and speak English well enough to
participate fully in the proceedings and to assist counsel. But on the record before us,
we cannot say that the trial court abused her discretion in failing to appoint an
interpreter. When the trial court began the process of speaking with Elsayed to
determine whether an interpreter was needed, Elsayed himself informed her that he
was sure that he could proceed without an interpreter. The court thus did not appoint
one but informed Elsayed that he could ask for one as the trial proceeded. After that,
neither Elsayed nor his counsel distinctly asked for the appointment of an interpreter
because of Elsayed’s inability to understand and speak English or invoke a ruling on
the need for an interpreter.
“[A] trial judge who has the opportunity to observe the proceedings, the parties,
and their counsel deserve[s] an appropriate degree of deference in assessing in the
first instance whether an interpreter should be provided. . . .” Ling, 288 Ga. at 302 (2).
Given the deference owed to the trial court, we cannot say that Elsayed has shown
that the trial court abused her discretion.
3. The evidence supports the trial court’s judgment for Bakayoko on Elsayed’s
claim for lost revenue.
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Elsayed argues that the trial court erred by entering judgment in favor of
Bakayoko on Elsayed’s claim for lost revenue from April 1, 2018 to July 31, 2018.
But Elsayed testified that the parties’ arrangement ended at the end of March 2018
and Bakayoko testified that he stopped working for Elsayed at the beginning of April
2018. So some evidence supports the trial court’s judgment that Elsayed was not
entitled to the revenue and we must affirm. Atlanta Truck Parts v. Zenon & Zenon
Contractors, 345 Ga. App. 507, 509 (3) (813 SE2d 178) (2018).
3. Elsayed has not demonstrated error in the trial court’s refusal to admit
police reports into evidence.
Elsayed argues that the trial court erred by refusing to admit police reports
because the evidence falls into an exception to the hearsay rule. He has not shown
error.
During direct examination of Elsayed, his attorney informed the court that she
would like to have plaintiff’s exhibit 6, a police report, admitted. The trial court
refused to admit the exhibit because the police were not at the trial. Counsel moved
on, neither arguing that the court should admit the exhibit nor proffering the exhibit.
Later, on redirect, counsel stated “we would tender two police reports that kind of
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speak to this, but since the police is not here, we cannot offer them.” Again, she
neither argued that the court should admit the reports nor proffered them.
We “cannot determine the propriety of the trial court’s ruling without a proffer
of the excluded evidence. . . .” Fletcher v. Estes, 268 Ga. App. 596, 597 (1) (602
SE2d 164) (2004) (citation and punctuation omitted).”Because [Elsayed] never
proffered the excluded [police reports] at trial and the [police reports are] not in the
appellate record, we presume that the trial court’s evidentiary ruling was correct.”
HA&W Financial Advisors, LLC v. Johnson, 336 Ga. App. 647, 654 (2) (782 SE2d
855) (2016).
4. Attorney fees.
Elsayed challenges the award of attorney fees to Bakayoko. We agree that the
award must be vacated and the case remanded.
“As a general rule, Georgia law does not provide for the award of attorney fees
even to a prevailing party unless authorized by statute or by contract.” Cothran v.
Mehosky, 286 Ga. App. 640, 641 (649 SE2d 838) (2007) (citation and punctuation
omitted). In his counterclaim, Bakayoko did not specify a statutory basis for his fee
request. At the trial, his attorney testified to the time he had spent on the case as well
as his hourly rate but he did not argue a statutory basis for an attorney fee award. And
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in her order awarding Bakayoko attorney fees, the trial court “set[] forth neither the
statutory basis for the attorney fees award nor any findings necessary to support it.
Accordingly, we vacate the portion of the judgment awarding attorney fees and
remand for an explanation of the statutory ground for the award and any findings
necessary to support such an award.” Capital Floors, LLC v. Furman, 351 Ga. App.
589, 599 (5) (831 SE2d 522) (2019).
Judgment affirmed in part and vacated in part, and case remanded. Rickman,
P. J., and Senior Appellate Judge Herbert E. Phipps concur.
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