Mansour Elsayed v. Losseni Bakayoko

• Court: Court of Appeals of Georgia
• Decided: April 20, 2021
• Docket: A21A0124
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, C. J., RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

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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.

2 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).

3 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

4 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).

5 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.

6 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.

7 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

8 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

9 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.

10 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

11 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

12 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.