                              FOURTH DIVISION
                              ELLINGTON, P. J.,
                           BRANCH and MERCIER, JJ.

                    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.
                                http://www.gaappeals.us/rules


                                                                       May 24, 2016




In the Court of Appeals of Georgia
 A16A0330. JONES v. SPRUILL.

      BRANCH, Judge.

      Mack Spruill obtained a family violence protective order from the Clayton

County Superior Court against his brother, Antwione Jones. Following entry of the

order, Jones filed both a motion for reconsideration and a motion for a new trial, and

he requested a hearing on both. The trial court thereafter dismissed both motions

without holding a hearing on either. Jones now appeals, arguing that the trial court

erred by dismissing his motion for a new trial without affording him a hearing on the

same.1 Jones further contends that the trial court was without jurisdiction to enter an

order against him under Georgia’s Family Violence Act, OCGA § 19-13-1, et seq.,


      1
        Spruill has not appealed the trial court’s dismissal of his motion for
reconsideration.
because conduct between siblings does not fall within the statutory definition of

“family violence.” We agree with Jones the trial court erred in dismissing his new

trial motion without holding a hearing thereon. We further find, however, that the trial

court had jurisdiction to enter the protective order at issue, as Jones’s conduct

constituted an act of family violence under OCGA § 19-13-1. Accordingly, we affirm

the order dismissing Jones’s new trial motion.

      The record shows that on May 1, 2015, Spruill filed a verified application for

a temporary protective order against Jones. In that application, Spruill alleged that he

and Jones were brothers who formerly resided in the same household, and that on

April 30, 2015, Jones had punched him, brandished a gun in his face, and threatened

to kill him. Based on this application, the trial court entered a temporary, ex parte

family violence protective order and scheduled a hearing on Spruill’s petition for May

29. Prior to that hearing, Jones filed a verified response, in which he denied the

material allegations of Spruill’s petition. Jones also asserted that the petition failed

to allege an act of family violence, as he and Spruill were siblings who had not

resided in the same household for more than 20 years.

      At the May 29 hearing, Spruill testified as to the events that led him to seek the

protective order. Spruill stated that Jones was his younger brother, but that the two

                                           2
have not lived in the same household for more than two decades. According to

Spruill, on the evening of April 30 he went to visit Jones at a house owned by Jones’s

mother-in-law and which was under renovation. During that visit, Jones accused

Spruill of stealing $200 from him. When Spruill denied taking the money, Jones

punched him several times and then threatened him with a pool cue. Spruill left the

house to go to his car, and Jones followed him. The men engaged in further

conversation, during which Spruill again attempted to convince his brother that

Spruill had not stolen his money. After Spruill got into his car, Jones pulled out a gun,

brandished it in his brother’s face, and threatened to kill Spruill.

      Spruill took pictures of the bruises he suffered as a result of his altercation with

Jones, and these pictures were introduced into evidence. Additionally, Spruill testified

that Jones had been convicted in 1999 of simple battery and that this conviction

resulted from another incident in which Jones had attacked and threatened Spruill. A

certified copy of that conviction was introduced and admitted into evidence.

      Although he did not testify, Jones appeared at the hearing and was represented

by counsel, who cross-examined Spruill. At the conclusion of the hearing, the trial




                                           3
court found there was probable cause to support the issuance of a protective order,2

and the court entered the written order later that day. In that order, the trial court

specifically found that it had jurisdiction over the parties and over the subject matter

of the hearing. The protective order enjoined and restrained Jones from threatening,

injuring, harassing, or harming Spruill or any member of his family or household;

enjoined and restrained Jones from approaching within 100 yards of either Spruill or

his minor children; ordered Jones not to have any contact with Spruill either directly

or indirectly, either through other persons or by written or electronic means; required

Jones to enroll in a certified family violence intervention program; and ordered Jones

to surrender any firearms in his possession to the Clayton County Sheriff’s

Department.

      On June 24, 2015, Jones filed both his motion for reconsideration and his

motion for new trial. The trial court dismissed his motion for reconsideration without

prejudice on July 1, and dismissed the new trial motion without prejudice on July 15.

In each order, the trial court stated that dismissal was appropriate because “[t]he court


      2
        The court also found that probable cause existed to arrest Jones on charges
of aggravated assault and aggravated battery, and ordered that Jones be taken into
custody. The record does not show the outcome of any criminal charges filed against
Jones, and those charges are not at issue on this appeal.

                                           4
held a full hearing, with [Jones] represented by counsel, and found sufficient probable

cause that an act of family violence occurred between siblings and [Jones] was the

primary aggressor.”

      After the trial court dismissed both his motion for reconsideration and his

motion for new trial, Jones filed an application for a discretionary appeal, which this

Court granted. This appeal followed.

      1. Although the trial court purported to dismiss Jones’ motion for new trial, that

order was substantively a denial of the motion, and we therefore treat it as such. See

State v. Chapman, 322 Ga. App. 82, 83 (744 SE2d 77) (2013) (“orders are construed

according to their substance and function and not merely by nomenclature”) (citations

and punctuation omitted) (treating a mistrial granted following a jury verdict as the

grant of a motion for a new trial). On appeal, Jones contends that the trial court erred

in denying his new trial motion without conducting a hearing. We agree.

      Under Georgia law, a trial court is required to hold a hearing before deciding

a motion for a new trial. See Green v. McCart, 273 Ga. 862-863 (1) (548 SE2d 303)

(2001); Garner Plumbing v. Slate Const., 300 Ga. App. 656 (1) (686 SE2d 301)

(2009); Uniform Sup. Ct. R. 6.3. Thus, because Jones specifically requested a hearing

on his new trial motion, the trial court erred in denying that motion before conducting

                                           5
such a hearing. See Ricks v. State, 294 Ga. App. 398, 399 (670 SE2d 164) (2008)

(unless waived, movant entitled to a hearing on a motion for new trial); Shockley v.

State, 230 Ga. 869 (199 SE2d 791) (1973); Foster v. State, 230 Ga. 870 (1) (199

SE2d 790) (1973); Lee v. State, 308 Ga. App. 711, 716 (3) (708 SE2d 633) (2011).

      In most cases, the trial court’s failure to hold the requisite hearing on a motion

for a new trial would constitute reversible error, requiring us to vacate the order

denying the motion and remand the case for a hearing. See, e.g., Green, 273 Ga. at

863 (1); Ricks, 294 Ga. App. at 399. We find, however, that remand is not required

in this case for two reasons. First, as noted above and as discussed more fully in

Division 2, the basis for Jones’s new trial motion is that the trial court lacked

jurisdiction to enter the protective order. And remand is unnecessary where the

question on appeal involves subject matter jurisdiction. “The judgment of a court

having no jurisdiction of the . . . subject matter . . . is a mere nullity and may be so

held in any court when it becomes material to the interest of the parties to consider

it.” OCGA § 17-9-4. See also Bush v. State, 273 Ga. 861 (548 SE2d 302) (2001).

      Moreover, in this case, the facts are undisputed and the question presented by

Jones’s new trial motion is one of law. In such cases, judicial economy dictates that

we exercise our discretion to address the “controlling question of law . . . rather than

                                           6
require the same issue to arise on [any subsequent] appeal from denial of the [new

trial motion].” Radio WEBS v. Tele-Media Corp., 249 Ga. 598, 604 (2) (292 SE2d

712) (1982) (on appeal from an interlocutory injunction, “[j]udicial economy

dictate[d]” that the appellate court decide the “controlling question of law,” as that

question would control issues relevant to the issuance or denial the permanent

injunction) (footnote omitted). See also Ward v. State, 248 Ga. 60, 61 (1), n. 1 (281

SE2d 503) (1981) (even where a constitutional issue is not raised in the trial court,

then, “so as to avoid the re-litigation of these issues on habeas corpus,” the appellate

court may exercise its “discretion to decide these questions in the interest of judicial

economy”) (citation omitted); Arnold v. State, 253 Ga. App. 307, 308 (1) (560 SE2d

33) (2002) (where trial court fails to hold an evidentiary hearing on a defendant’s

ineffective assistance of counsel claim, “[r]emand is unnecessary . . . when it appears

as a matter of law that the appellant cannot satisfy the two-prong test to establish

ineffectiveness of counsel”) (citation and footnote omitted); J. M. High Co. v.

Arrington, 45 Ga. App. 392 (3) (165 SE 151) (1932) (where the material facts in the

case are undisputed and the only issue on appeal is a question of law, “it is

unnecessary to send the case back for another hearing in the trial court”) (citation



                                           7
omitted). Accordingly, we will proceed to address the merits of Jones’s new trial

motion, which asserted only that the trial court lacked subject matter jurisdiction.

       2. Georgia’s Family Violence Act authorizes trial courts, “upon the filing of a

verified petition,” to “grant any protective order . . . to bring about a cessation of acts

of family violence.” OCGA § 19-13-4 (a). The statute defines “family violence” as

the commission of any felony or the commission of battery, simple battery, simple

assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal

trespass “between past or present spouses, persons who are parents of the same child,

parents and children, stepparents and stepchildren, foster parents and foster children,

or other persons living or formerly living in the same household[.]” OCGA § 19-13-1.

(emphasis supplied).

       On appeal, Jones contends that the trial court erred in interpreting OCGA §

19-13-1 to encompass acts committed between siblings. In support of this argument,

Jones points to the fact that the legislature has enhanced criminal penalties where

certain crimes are committed between family members or “other persons living or

formerly living in the same household.” The legislature, however, specifically

excluded crimes committed between siblings from such enhanced penalties. See

OCGA § § 16-5-20 (d); 16-5-21 (k); 16-5-23 (f); 16-5-24 (h) (providing enhanced

                                            8
penalties for the offenses of simple assault, aggravated assault, simple battery, and

aggravated battery if the offense “is committed between past or present spouses,

persons who are parents of the same child, parents and children, stepparents and

stepchildren, foster parents and foster children, or other persons excluding siblings

living or formerly living in the same household”) (emphasis supplied). Thus, Jones

argues that despite the absence of any language expressly excluding acts between

siblings from the definition of family violence set forth in OCGA § 19-13-1, we

should nevertheless interpret the statute so as to exclude such conduct from the act.

We disagree.

      When appellate courts in Georgia consider the meaning of the statute, we begin

with the presumption “that the General Assembly meant what it said and said what

it meant.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation

and punctuation omitted). Thus, our search for the meaning of a statute “must begin

with the words of the statute, and if those words are clear and unambiguous, the

search also must end there.” Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga.

573, 577-578 (1) (707 SE2d 921) (2011) (citations omitted). See also Deal, 294 Ga.

at 173 (1) (a) (“if the statutory text is ‘clear and unambiguous,’ we attribute to the

statute its plain meaning, and our search for statutory meaning is at an end”) (citation

                                           9
omitted). Here, OCGA § 19-13-1 defines family violence as including the

commission of certain acts, including battery and assault, “between persons living or

formerly living in the same household.” Given this unambiguous language, and given

that it is common for siblings to live in the same household at some point in their

lives, we must conclude that the legislature intended to include the commission of

certain acts between siblings within the scope of the Family Violence Act.3

Accordingly, the trial court had jurisdiction to enter a protective order against Jones,

and his motion for a new trial was without merit. We therefore affirm the denial of

that motion.

        Judgment affirmed. Mercier, J., concurs. Ellington, P. J., concurs in judgment

only.




        3
        This conclusion is reinforced by the fact that, as noted above, in imposing
enhanced penalties for certain crimes that could be considered an act of family
violence, the legislature incorporated language expressly excluding crimes between
siblings from those provisions. We therefore must assume that had the legislature
intended to exclude conduct between siblings from the Family Violence Act, it would
have included express language to that effect in OCGA § 19-13-1.

                                          10
