text:
    A01A1173.
    THOMPSON v. CLUB GROUP, LTD. et al.
    (553 SE2d 842)
   Miller, Judge.

There are two issues presented on appeal. The first is the question of whether at the time of a collision the negligent driver was acting as an employee or independent contractor for any or all of the three corporate defendants. The second issue is whether the driver’s actions as an employee were within the course and scope of his employment. The evidence showed that although it was his day off from his regular employer, at the time of the collision the driver was acting at his employer’s behest in picking up and delivering certain documents to the employer and that the employer controlled his actions in this regard. The evidence was undisputed that the other two defendants did not employ the driver nor control his actions during such document deliveries and thus at most had only an independent contractor relationship with him at the time of the collision. Thus, we reverse that portion of the judgment granting summary judgment in favor of the regular corporate employer and affirm the remainder of the judgment granting summary judgment to the other two defendant corporations.

In 1989, Club Group, Ltd. hired James Gray as a bellman for a resort it operated on Hilton Head Island, South Carolina. Gray’s responsibilities included greeting and assisting guests and running various errands, including the distribution of office mail between the resort and Club Group’s general administrative office. Beyond operating a resort, Club Group also provided administrative functions such as payroll and accounting for two affiliated entities — CGL of Savannah, Inc. and Low Country Golf Investors, Inc., each operating a golf course in Savannah and Hardeeville, respectively. CGL and Low Country would regularly deliver documents to Club Group so Club Group could perform the accounting and payroll services, which deliveries the manager of the Savannah golf course performed for a period of time.

When the manager moved, the controller for Club Group and its president approached Gray about performing the delivery services on his day off, which was Friday of each week. Gray traveled from his residence in Savannah to Hilton Head each week to pick up his paycheck on Friday anyway, and so they agreed to pay him a flat fee of $35 to pick up documents from CGL each Friday (and from Low Country when its regular courier was unavailable), deliver them to Club Group, receive payroll checks for one of the golf courses, and then return to that golf course by 2:00 p.m. to deliver the payroll checks.

Gray performed and was paid for these delivery services for several months until the date of the auto accident. On Friday, May 10, 1996, Gray was speeding and possibly racing along the highway adjacent to CGL’s Savannah golf course (where there were documents waiting to be picked up), when he lost control of his car, crossed the median, and collided head-on with a vehicle in which Betty Thompson was a passenger. Gray died in the accident, and Thompson was severely burned. Thompson brought the present lawsuit to recover damages from Gray’s estate and from Club Group, CGL, and Low Country. Reasoning that no evidence showed that Gray was acting as an employee of any of the three corporate defendants at the time of the collision, the trial court granted them summary judgment, which Thompson appeals.

1. Thompson first argues that the court erred in considering the affidavit of Mark King, the president of all three corporate defendants. King testified at length about the relationship between the corporations and Gray. Thompson contends that King could not testify about the oral agreement establishing the terms of the weekly delivery arrangement, as King’s testimony about Gray’s assent to this agreement constitutes hearsay.

We note first that King’s affidavit primarily references his personal knowledge and observations of the terms and workings of the arrangement with Gray and thus is not hearsay. We also note that Thompson makes no objection to King’s deposition, in which much of the same testimony is reiterated. In any case, to the extent King implies or states that Gray agreed to the arrangement, OCGA § 24-3-8 provides that “[declarations and entries made by a person since deceased against his interest and not made with a view to pending litigation shall be admissible in evidence in any case.” Alleged oral agreements by the deceased are considered against the deceased’s interest and are therefore not objectionable as hearsay but are admissible. Thompson’s enumeration must fail.

2. Thompson urges that the trial court erred in holding as a matter of law that Gray performed no services for Club Group on the date of the accident. As there was evidence from which a jury could infer that Gray was performing services for Club Group at the time of the collision, we agree with Thompson and reverse this portion of the summary judgment order.

“When an employee causes an injury to another, the test to determine if the employer is liable is whether the employee was acting within the scope of the employee’s employment and on the business of the employer at the time of the injury.” Thus, if the employer authorized the employee to accomplish the purpose in pursuance of which the tort was committed, the employer is liable.

Summary judgment is proper only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal we review the evidence de novo in the light most favorable to the nonmovant.

It is undisputed that at the time of the collision Gray was a full-time employee of Club Group. Since Friday was generally considered his day off from this employment, the question is whether Gray nevertheless was acting within the scope of his employment and on the business of Club Group at the time of the collision. Construed in favor of Thompson, several items of evidence would allow a jury to infer such.

First, before Gray took over the delivery responsibilities, they had simply been a part of the job responsibilities of the manager of the Savannah golf course. Since the $35 paid to Gray was based at least in part on the number of miles involved and on the wear and tear on his vehicle, and since one could infer that the $35 barely covered these expenses (the round trip exceeded 119 miles), a jury could also infer that this courier duty became a part of Gray’s responsibilities as an employee of Club Group, with Club Group simply insuring that Gray was reimbursed his expenses from the trip. In light of Gray’s ongoing responsibility to deliver documents between the resort and Club Group’s general administrative offices, this additional delivery responsibility could be seen as a natural outgrowth of that. Indeed, King admitted that Gray took on the new delivery responsibility at this low price as “a favor” to Club Group. And similar to an employee, Gray was to be paid the $35 each week even if no deliveries were made. After Gray’s death, the managers at the golf courses took over the duty of delivering the documents as a part of their job responsibilities.

Second, the delivery of these documents was in furtherance of Club Group’s business, for it could not perform its administrative duties for CGL and Low Country without these documents.

Third, evidence showed that Club Group controlled Gray in his performance of these services. King (Club Group’s president) testified he had the power to fire Gray from his bellman position at Club Group if he did not perform his courier services to the golf courses satisfactorily or if he violated traffic laws. And King candidly admitted that he controlled Gray in the performance of all his responsibilities, even if Gray were considered an independent contractor. Due to his control over Gray, King did not feel it necessary that the courier arrangement be reduced to writing.

Fourth, even though at the time of the accident Gray had not yet picked up the documents from the Savannah golf course, the accident occurred on the road adjacent to the golf course in the morning at a time that would allow Gray to pick up the documents, travel to Club Group, and be back to the golf course by the required time of 2:00 p.m. Some evidence showed that the $35 payment was calculated based on the round-trip mileage from Gray’s residence to the various pick-up and drop-off points. As this could be construed as a “special” errand made at his employer’s request, the fact that Gray had not yet arrived at the Savannah golf course does not necessarily insulate Club Group from liability.

From the above evidence a jury could infer that Gray was acting within the scope of his employment for Club Group. The evidence that he was speeding or even racing does not necessarily preclude such a finding. The trial court erred in granting summary judgment to Club Group.

3. The same is not true for the summary judgment granted to CGL and Low Country, for at most Gray’s relationships with these two corporations were as an independent contractor. OCGA § 51-2-4 provides that “[a]n employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.” Whether a negligent driver was acting as an employee of a defendant or as an independent contractor depends on whether the contract gave, or the defendant assumed, the right to control the time, manner, and method of executing the work as distinguished from the right merely to require certain results.

The undisputed evidence shows at most an independent contractor relationship between Gray and either CGL or Low Country. CGL paid Gray $35 to deliver documents to Club Group and to receive documents in return by 2:00 p.m. each Friday. Low Country reimbursed CGL a portion of that payment for Gray’s occasional delivery of documents to and from Low Country. Other than the 2:00 p.m. deadline, neither corporation controlled the time, manner, and method by which Gray performed his courier services. They did not (i) require him to use a particular route, (ii) provide him with a vehicle or require him to use a particular car or truck, (iii) control whether Gray hired anyone else to assist him in performing his courier services, (iv) provide him with insurance on his vehicle or dictate the type and amount of such insurance, (v) provide him with any employee benefits, (vi) set his working hours, (vii) provide him with or require him to undergo any training, (viii) require him to follow any employment policies or procedures applicable to CGL or Low Country employees, (ix) require him to submit an employment application, (x) subject him to any performance reviews, (xi) require him to submit to medical examinations or drug and alcohol testing, (xii) deduct FICA and taxes from his paycheck, (xiii) pay him out of the CGL or Low Country payroll accounts, (xiv) require him to maintain an office or work out of a specific location, or (xv) supervise the performance of his courier services. The court did not err in concluding as a matter of law that Gray had at most independent contractor relationships with these two entities.*

Moreover, the undisputed evidence shows that on the day of the accident, Gray was not scheduled to stop by Low Country to pick up any documents, as there were no documents to be picked up or delivered that day at Low Country. Thus, even if Gray had had an employment relationship with Low Country, that particular Friday he was not acting in furtherance of that relationship.

4. In her final enumeration of error, Thompson contends that the trial court erred in not according collateral estoppel effect to an administrative decision of the South Carolina Workers’ Compensation Commission, in which the Commission held under South Carolina law that Gray was acting within the scope of his employment with Club Group at the time of the accident. This decision has subsequently been upheld on appeal.

Decided August 9, 2001

Reconsideration denied August 24, 2001

Whelchel, Brown, Readdick & Bumgartner, Richard A. Brown, Jr., Brad S. McLelland, for appellant.

Ellis, Painter, Ratterree & Bart, Sarah B. Akins, Lee C. Mundell, Brennan, Harris & Rominger, Edward R. Stabell III, for appellees.

Setting aside whether the issue in the Commission’s decision is the same as the issue here, we note that Thompson was not a party to that case. Binding precedent of this court as set forth in Wickliffe v. Wickliffe Co. precludes the application of collateral estoppel unless the previous action was between the same parties or their privies. We decline Thompson’s invitation to overrule Wickliffe. The trial court did not err.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Eldridge, J., concur.

       Kang actually submitted two affidavits, which for the most part contained the same testimony.

        Martin v. Turner, 235 Ga. 35, 36 (1) (218 SE2d 789) (1975); accord Miller v. Everett, 192 Ga. 26, 30 (3) (14 SE2d 449) (1941).

       (Citations omitted.) Chorey, Taylor & Feil, P.C. v. Clark, 273 Ga. 143, 144 (1) (539 SE2d 139) (2000).

       Id.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Cf. 2000-49 IRB, p. 570, Rev. Proc. 2000-48 § 2.01 (1) (currently allowing a standard mileage rate of 34.5 cents per mile for federal tax deduction purposes).

       See Patterson v. Southeastern Newspapers, 243 Ga. App. 241, 242-244 (1) (533 SE2d 119) (2000).

       See Barfield v. Royal Ins. Co., 228 Ga. App. 841, 844 (2) (492 SE2d 688) (1997) (employee’s disobedience to company rules or criminal laws does not necessarily insulate employer from liability).

        Allison a Nat. Assn. for the Self-Employed, 187 Ga. App. 592 (1) (370 SE2d 841) (1988); see generally Redd v. Brisbon, 113 Ga. App. 23, 24 (147 SE2d 15) (1966) (to determine whether relationship existed, court must determine whether alleged servant was subject to defendant’s orders and control and hable to be discharged for disobedience or misconduct); Graham v. Cleveland, 58 Ga. App. 810, 813 (1) (200 SE 184) (1938).

       See Perry v. Soil Remediation, 221 Ga. App. 386, 387-388 (1) (471 SE2d 320) (1996); compare Davis v. Beasley Timber Co., 241 Ga. App. 706, 707-708 (1) (527 SE2d 221) (1999).

        Gray v. Club Group, Ltd., 339 S.C. 173 (528 SE2d 435) (App. 2000).

       227 Ga. App. 432, 433-434 (1) (489 SE2d 153) (1997) (whole court).

       Accord Smith v. Nasserazad, 247 Ga. App. 457, 458 (2) (544 SE2d 186) (2001).


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A01A1497.
    THE STATE v. DODGE.
    (553 SE2d 831)
   Ellington, Judge.

The State appeals from the discharge and acquittal of Danielle Dodge, who had been charged with three counts of driving under the influence of drugs of alcohol to the extent it was less safe to drive, OCGA § 40-6-391 (a), and running a stop sign, OCGA § 40-6-20 (a). For the following reasons, we reverse the trial court’s judgment.

The State Court of Fulton County has six terms of court each year which commence on the first Monday of the following months: January, March, May, July, September, and November. OCGA § 15-7-40; Price v. State, 245 Ga. App. 128 (535 SE2d 766) (2000). The record in this case shows that the State filed an accusation against Dodge on July 28, 1999. On October 15, 1999, Dodge’s counsel, William C. Head, allegedly filed a request for a leave of absence for the following dates in 1999: October 28 and 29; November 5; November 22 through 26; December 2 and 3; and December 9 through 31. Six days later, on October 21,1999, Head filed a demand for speedy trial, pursuant to OCGA § 17-7-170. According to this statute, a defendant may request a speedy trial within the term during which the accusation is filed or at the next succeeding court term. Id. If the defendant is not tried during the term in which the demand is made or the next succeeding regular court term, she is entitled to be discharged and acquitted, “provided at both court terms there were juries impaneled and qualified to try [her].” Id.

Upon receipt of Dodge’s demand for speedy trial, the State immediately notified the trial court’s case manager and requested that the case be placed on the first available trial calendar. The trial court scheduled Dodge’s arraignment for November 22,1999, and trial was set for December 13, 1999, the next available trial date. Dodge waived arraignment on November 16, 1999, and pled not guilty.

On December 13, 1999, Head failed to appear in court, instead sending an associate of his firm. At that time, the trial court gave Head, via the associate, three options: (1) serve as Dodge’s counsel and try the case that week; (2) allow another attorney to proceed with the case; or (3) withdraw the speedy trial demand. Head sent a facsimile to the trial court the same day stating that the options he had been given were not “viable,” and asserted that the State had missed its opportunity to try the case. When Head failed to appear to try the case by 4:00 p.m. on December 13, the trial court continued the case until February 15, 2000.

Dodge moved for discharge and acquittal on March 30, 2000. In granting the motion, the trial court found that Dodge’s motion for speedy trial was timely and proper under OCGA § 17-7-170, and that Head’s notice of leave of absence was likewise timely and proper under Uniform Superior Court Rule 16. The trial court also found that the State failed to object to Head’s leave of absence in a timely manner, and that it had failed to demonstrate that its inability to try the case within two terms resulted from some affirmative act of Dodge.

1. Initially, we find that the trial court erred in determining that Head’s notice of leave of absence was “timely and proper” under USCR 16. The face of the notice clearly shows that Head actually requested a leave of absence totaling at least 33 calendar days. Pursuant to USCR 16.2, requests for leave in excess of 30 days must be submitted to the opposing counsel at least ten days before filing with the trial court, and if the opposing party chooses to waive the ten-day requirement, it must be in writing. The trial court retains discretion about whether to permit the extended leave. Id. The record affirmatively shows that Head failed to give the State the requisite ten days notice before filing the notice with the court. The record contains no written waiver by the State of this ten-day notice. Therefore, the trial court’s finding that the notice was “timely and proper” was clearly erroneous. See Day v. State, 187 Ga. App. 175 (1) (369 SE2d 796) (1988).

Further, USCR 16.4 states that “[a]ny application for leave not filed in conformance with this rule will be denied” (Emphasis supplied.) Because Head’s notice of leave of absence was untimely filed with inadequate notice to the State, it was effectively denied. Accordingly, Head’s absence from court on the day the case was called for trial was unauthorized.

2. The State contends the trial court erred in granting Dodge’s motion. Because we find Dodge waived her right to a speedy trial, we agree that she was not entitled to an automatic discharge. “‘A defendant may waive his right to automatic discharge under OCGA § 17-7-170 by any affirmative action on his part or on the part of his counsel which results in a continuance of the case to a time outside the period of the demand.’ The State bears the burden of showing waiver.” (Footnotes omitted.) Jones v. State, 250 Ga. App. 829, 830 (553 SE2d 24) (2001). See also Sykes v. State, 236 Ga. App. 518, 520 (2) (511 SE2d 566) (1999).

In Jones, this Court considered circumstances remarkably similar to the instant case in deciding whether defense counsel’s extensive absences could waive a speedy trial demand. In Jones, counsel filed a motion for speedy trial and a notice for leaves of absence covering 34 days within that term and the next succeeding three-month term. Id. at 829. Counsel also filed conflict letters which prevented his appearance at two motions hearings. Id. When the case was not tried within two terms following the speedy trial demand, counsel moved for discharge and acquittal. Id. at 830. In affirming the trial court’s denial of the motion, this Court enunciated two independent bases for finding that Jones had waived his speedy trial motion. Id. at 831. First, counsel’s requests for continuances and his absences resulted in “only a short window being available” to try the case within two terms. Id. Second, when counsel was unavailable for a motions hearing, the trial court, with Jones’ consent, reset the case to a date outside the period allowed by the demand. Id. at 831-832. As the Court noted,

[t]he issue of when requested continuances and leaves of absence by the defense waive the speedy trial demand and the automatic discharge is of utmost importance in an ordered constitutional system of providing timely justice to defendants while preserving the trial court’s control over its docket. We must guard against manipulations that would allow defense counsel the power to force the trial court to try the case during a short window between defense leaves of absence and continuances. On the other hand, we do not hold that any leave of absence request waives the speedy trial demand, for such is too harsh and would ignore the problem of forcing defense counsel to forgo even a single short leave of absence request or else face the forfeiture of the client’s right to a speedy trial.

(Footnote omitted; emphasis in original.) Id. at 831.

In the instant case, Head’s voluntary absences from court left only nine days to try this case within the second term. See footnote 3, supra; Jones v. State, 250 Ga. App. at 835 (Blackburn, C. J., concurring specially) (counsel’s numerous absences made it “virtually impossible” to schedule a trial). Further, Head’s unauthorized absence on December 13,1999, the day of trial, as well as his refusal to comply with the trial court’s instructions to try the case that week or withdraw the speedy trial demand, caused Dodge’s trial to be delayed beyond the two-term limit. See Jones v. State, 250 Ga. App. at 835-836 (Blackburn, C. J., concurring specially); Sykes v. State, 236 Ga. App. at 520 (2) (even though counsel did not formally request a continuance, the voluntary absence from trial of counsel or defendant may be considered in determining whether the speedy trial demand had been waived); Knight v. State, 197 Ga. App. 250, 251-252 (1) (398 SE2d 202) (1990) (defendant effectively consented to a continuance beyond the term of court when counsel’s extended leave prevented trial before the end of the term). These two circumstances were independent bases to find that Dodge waived her speedy trial demand and right to automatic discharge. Jones v. State, 250 Ga. App. at 831; State v. Davis, 243 Ga. App. 867, 868 (534 SE2d 159) (2000); State v. Allen, 165 Ga. App. 86, 87 (299 SE2d 158) (1983) (voluntary absence from court may act as waiver of speedy trial demand).

Further, it is clear to this Court that the practice of postponing trial through a series of extended absences is becoming more common. The speedy trial statute, however, does not allow the defendant to demand that her trial be conducted only during those periods when it is convenient for the defendant and her counsel. See Birts v. State, 192 Ga. App. 476, 481 (385 SE2d 120) (1989) (Beasley, J., dissenting). “It does not say defendant may condition demand to certain dates or to exclude certain dates. ... To the contrary, the statute implies that if defendant demands prompt trial, he or she must be ready when the case is legitimately called.” Id.

We take special notice of Chief Judge Blackburn’s special concurrence in Jones and adopt it herein. It reminds us that the purpose of OCGA § 17-7-170 is “to insure the prompt trial of criminal defendants, not create a system by which lawyers can manipulate the system for the purpose of avoiding trial.” Id. at 835 (Blackburn, C. J., concurring specially). We cannot allow the precarious balance between the defendant’s rights and the State’s duties upon a speedy trial demand “to be upset by defense counsel’s interplay of motions, leaves of absence, and conflict letters which were used to both manipulate and abuse the system.” Id. at 832 (Blackburn, C. J., concurring specially). See also Fisher v. State, 273 Ga. 721, 723 (545 SE2d 895) (2001) (Georgia courts have attempted to prevent the manipulation of the trial calendar by both the defendant and the State); Birts v. State, 192 Ga. App. at 479 (Pope, J., concurring specially) (expressing concern that a leave of absence may be used as a manipulative tool to avoid trial).

Accordingly, we find that Dodge, by acquiescing in her counsel’s numerous absences, waived her speedy trial demand. We reverse the trial court’s grant of Dodge’s motion for discharge and acquittal and remand the case for trial.

3. Notably, a separate basis exists for reversing the trial court’s grant of Dodge’s motion for discharge and acquittal. Dodge failed to present any evidence that a jury was impaneled and qualified to try her during the few days that remained in the September 1999 term after she filed her motion for speedy trial on October 21, 1999. Even if Head had not requested a leave of absence on October 28 and 29, only six days remained in the September term to try the case: October 22, 25, 26, 27, 28, and 29.

[OCGA § 17-7-170] requires that a person under indictment or accusation who files a demand for a speedy trial must be tried in the term in which the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try [her].... A term or a remainder of a term in which no juries are impaneled and qualified to try the case is not counted for purposes of OCGA § 17-7-170. . . . Thus, the [September] 1999 term of court . . . would count for purposes of OCGA § 17-7-170 (b) only if jurors were impaneled and qualified at the time of [her] demand, or thereafter in the term, and the [November 1999] term would count only if jurors were impaneled and qualified during that term. The record is devoid of any evidence that jurors were impaneled and qualified to try [Dodge] when [she] filed [her] demand, or during the remainder of the [September] 1999 term, or that any jurors were impaneled and qualified in the [November 1999] term. [Dodge] neither submitted an affidavit from the clerk, nor obtained the presence of any witness at the hearing on the motion for acquittal. It was [Dodge’s] burden below to establish that there were qualified jurors impaneled during the relevant court terms so as to trigger OCGA § 17-7-170.

(Citations and punctuation omitted; emphasis supplied.) Union v. State, 273 Ga. 666-667 (543 SE2d 683) (2001). See also Redstrom v. State, 239 Ga. App. 769, 770 (521 SE2d 904) (1999); MacInnis v. State, 235 Ga. App. 732, 734 (510 SE2d 557) (1998). Since Dodge failed to establish that jurors were impaneled on October 22, 25, 26, 27, 28, or 29, the trial court erred in counting the September term toward the two-term limit under OCGA § 17-7-170. Accordingly, it was error for the trial court to grant her motion for discharge and acquittal.

Decided August 9, 2001

RECONSIDERATION DENIED AUGUST 24, 2001

Carmen D. Smith, Solicitor-General, Jody L. Peskin, Cynthia G. Strong, Assistant Solicitors-General, for appellant.

Head, Thomas, Webb & Willis, William C. Head, for appellee.

Judgment reversed.

Johnson, P. J., and Ruffin, J., concur.

       The copy of the notice in the record on appeal does not show that it was filed with the trial court.

       Although Head later told the trial court that his knee surgery made him unable to attend trial, Head’s facsimile clearly shows that he was scheduled only for pre-operative tests during the week of December 13, 1999. Head also claimed that he could not allow another attorney to try the case, even though he later admitted that there were “plenty of good lawyers in my office to try the case.” He contended that Dodge was a “personal friend” and not a “firm client.”

       Contrary to Dodge’s argument that 30 days were available for trial after the speedy trial demand was filed, no trial could be conducted before the arraignment, which had been scheduled for November 22, 1999. See OCGA § 17-7-91; Smith v. State, 207 Ga. App. 762, 763 (429 SE2d 149) (1993). The record shows that Dodge waited until November 16 before she waived arraignment. By that time, due to Head’s extended leave, only nine days remained available for trial during the November 1999 term.

       On February 3, 2000, Head notified the trial court that he could not attend the February 15 trial, as he had submitted a leave of absence for that date. He asked that the trial be taken off the calendar to accommodate his leave.

       We note that, while the trial court has no discretion on whether to grant a speedy trial motion under OCGA § 17-7-170, the court retains discretion over requests for leave of absence that encompass 30 calendar days or more. USCR 16.2. In situations such as this, where an attorney requests over 30 days off due to vacation, continuing legal education, or elective surgery within a two-month term, a trial court may need to exercise its discretion in denying the request for leave in whole or part or, in the alternative, requiring the defendant to choose between her speedy trial motion and representation by certain counsel. See Jones v. State, 250 Ga. App. 829, 836 (553 SE2d 24) (2001) (Blackburn, C. J., concurring specially) (finding that counsel, in a “remarkable display of chutzpah,” blamed the trial court for failing to revoke his leave of absence and try the defendant’s case. The Court also noted that “[ljawyers may well find trial courts reluctant to grant leaves of absence in the future where speedy trial demands have been filed”).

       Cf. Williams v. State, 216 Ga. App. 109, 110 (1) (454 SE2d 142) (1995) (continuance did not delay trial past end of term); McKnight v. State, 215 Ga. App. 899, 900-901 (453 SE2d 38) (1994) (counsel notified the court that he was prepared to try the case that day as scheduled, but failed to appear due to an alleged miscommunication); Birts v. State, 192 Ga. App. 476-477 (385 SE2d 120) (1989) (counsel’s seven-day leave of absence during two terms did not serve to waive defendant’s motion for speedy trial).

       In fact, Dodge failed to establish that jurors were impaneled and qualified at any time prior to the December 13, 1999 trial date.


author: Ruffin, Judge.

text:
    A01A0510.
    HOLMES et al. v. STA-BRITE AWNING SYSTEMS, INC.
    (554 SE2d 327)
   Ruffin, Judge.

Reverend Kenneth Holmes is before us again in connection with his ongoing dispute over the use of certain land owned by Achor Center, Inc.* In this case, Holmes claims that Sta-Brite Awning Systems, Inc. (“Sta-Brite”) tortiously interfered with and damaged personal property located on the Achor Center premises that belonged to him and his Capitol View Community Church (“the Church”). The trial court granted summary judgment on res judicata grounds, and Holmes appeals. For reasons that follow, we affirm.

On April 22, 1997, Holmes filed suit individually against StaBrite in Fulton County State Court, claiming that Sta-Brite improperly removed, damaged, and interfered with two church signs that he had purchased. During a deposition, Holmes testified that he, rather than the Church, personally paid for and owned the signs at issue. Sta-Brite subsequently moved for summary judgment, and Judge Gino Brogdon held a hearing at which Holmes again indicated that he owned the church signs. On September 8, 1997, Judge Brogdon granted Sta-Brite’s motion for summary judgment on all of Holmes’ claims, and we affirmed that ruling in an unpublished opinion.

Six months later, Holmes and four other individuals “d/b/a Capitol View Community Church” sued Sta-Brite in the Superior Court of Clayton County. The complaint alleged that Sta-Brite removed, interfered with, and damaged the same two church signs involved in the Fulton County suit, as well as a ladder. In the Clayton County complaint, however, Holmes and the others alleged that the Church owned the signs and the ladder. Holmes has since clarified that both he and the Church own this personal property.

Sta-Brite moved for summary judgment, arguing that Judge Brogdon’s summary judgment ruling in the Fulton County action was res judicata as to the Clayton County suit. The Clayton County court agreed, granted summary judgment to Sta-Brite, and this appeal ensued.

“The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.” Res judicata has three prerequisites: (1) identity of the cause of action; (2) identity of the parties or their privies; and (3) a previous adjudication on the merits by a court of competent jurisdiction. We agree with the trial court that res judicata bars Holmes’ claims.

The Clayton County and Fulton County complaints involve the same cause of action. We have held that

res judicata bars subsequent actions as to all matters put in issue or which under the rules of law might have been put in issue in the original action. The adding of additional claims for relief which grow out of the same factual situation do not amount to the adding of a new or different cause of action, thereby escaping the bar of res judicata.

Holmes’ first lawsuit alleged that, on two separate occasions, Sta-Brite tortiously interfered with, removed, and damaged two church signs. The Clayton County complaint similarly alleged that Sta-Brite tortiously interfered with, removed, and damaged the church signs, as well as a ladder, on these same two occasions. We find no distinction between the two causes of action.

On appeal, Holmes argues that the allegations regarding the ladder were not raised in the Fulton County suit and thus should not be barred. The record shows, however, that the ladder’s removal occurred on one of the occasions when Sta-Brite allegedly interfered with a church sign, conduct clearly at issue in the Fulton County suit. Thus, the claim regarding the ladder “[grew] out of the same factual situation” as Holmes’ claims in Fulton County.

As noted above, Holmes asserts an ownership interest in the ladder. He could have — and should have — raised this claim in his original suit against Sta-Brite. Its inclusion in the Clayton County complaint does not defeat res judicata.*

Identity of the parties also exists as to Holmes’ claims. Sta-Brite, the only defendant named in the Clayton County suit, was a defendant in the Fulton County proceedings, and Holmes was a party plaintiff in both cases.

Trying to avoid identity of the parties, Holmes argues that he brought the Clayton County suit in a “capacity different from that in which he appeared in the first suit,” namely “d/b/a Capitol View Community Church.” Apparently, he claims to represent the Church in the Clayton County case. The Clayton County complaint shows, however, that Holmes sought damages on his own behalf. In that complaint, Holmes asserted that he was personally injured by StaBrite’s alleged conduct and requested recovery for mental anguish, physical discomfort, humiliation, embarrassment, and injury to his “good name and reputation.” Thus, the allegations in the Clayton County complaint show that Holmes was representing his own interest in the signs and ladder, rather than the Church’s interest.

Decided August 24, 2001.

Michael A. Gabel, for appellants.

Kenneth R. Holmes, pro se.

Mabry & McClelland, Edwin L. Hamilton, John G. Godsey, for appellee.

The Fulton and Clayton County suits involved the same cause of action, and Holmes personally sought damages in both. Holmes cannot avoid the res judicata bar simply by adding “d/b/a Capitol View Community Church” to the style of the case. We deal with substance, rather than nomenclature. It is clear that Holmes pursued his own interests in both suits, despite his claimed representation of the Church in the Clayton County action. Under these circumstances, we find identity of parties as to his claims.

Finally, the record shows that the merits of Holmes’ allegations against Sta-Brite were previously adjudicated in the Fulton County action. In that suit, Judge Brogdon granted Sta-Brite summary judgment on Holmes’ claims, concluding that Sta-Brite had a right to remove the signs. The Fulton County court thus reached the merits of and rejected Holmes’ allegations that Sta-Brite unlawfully interfered with or damaged the signs. We subsequently affirmed that ruling on appeal.

All three prerequisites for res judicata — identity of the subject matter, identity of the parties, and a prior adjudication on the merits — are met in this case. Accordingly, the trial court properly granted summary judgment to Sta-Brite on Holmes’ claims in the Clayton County action.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       See Holmes v. Achor Center, 249 Ga. App. 184, 185 (547 SE2d 332) (2001); see also Holmes v. Bd. of Commrs., 271 Ga. 206 (517 SE2d 788) (1999); Anderson v. Dowd, 268 Ga. 146 (485 SE2d 764) (1997); Holmes v. Achor Center, 242 Ga. App. 887 (531 SE2d 773) (2000); United Baptist Church v. Holmes, 232 Ga. App. 253 (500 SE2d 653) (1998); Achor Center v. Holmes, 219 Ga. App. 399 (465 SE2d 451) (1995).

       Summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Moore v. ECI Mgmt., 246 Ga. App. 601 (542 SE2d 115) (2000). We review the trial court’s grant of summary judgment de novo. Id.

       After the summary judgment hearing, but before Judge Brogdon issued a written summary judgment ruling, Holmes voluntarily dismissed his claims against Sta-Brite. On Sta-Brite’s motion, Judge Brogdon struck Holmes’ voluntary dismissal. Noting that he had orally announced his intention to grant Sta-Brite’s summary judgment motion at the hearing, Judge Brogdon also entered summary judgment for Sta-Brite nunc pro tunc to September 8, 1997, the date of the hearing.

       We are disturbed by Holmes’ ever-changing and contradictory positions regarding ownership of the signs and ladder. In the Fulton County suit, Holmes testified under oath that the church signs belonged to him. After filing the Clayton County suit, Holmes filed a sworn affidavit asserting that Church funds were used to purchase the signs and ladder. He now asserts on appeal that the signs and ladder “not only belong! ] to him but [the Church] as well.”

       Sarah E. Holmes, Norris Lenzy, Darnell Moorer, and Kerry L. Billingslea, the other four individuals who sued Sta-Brite in the Clayton County suit, originally participated in this appeal. We dismissed their appeal, however, because they failed to file enumerations of error and briefs.

        Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865 (1) (463 SE2d 5) (1995).

       Id. at 866.

       (Citation and punctuation omitted.) Garrett v. Life Ins. Co. of Ga., 221 Ga. App. 315, 317-318 (1) (471 SE2d 262) (1996).

       Id. See also Macko v. City of Lawrenceville, 231 Ga. App. 671, 672 (1) (499 SE2d 707) (1998) (“ ‘[T]he doctrine of res judicata will bar an action even if some new factual allegations have been made.’ ”).

       See Garrett, supra; OCGA § 51-10-1.

        Garrett, supra.

       Holmes has provided no authority for this claimed representation, other than citing his position as “pastor.”

       See Franklin v. Gwinnett County Public Schools, 200 Ga. App. 20, 26 (3) (407 SE2d 78) (1991) (looking at substance of complaint to determine capacity in which defendant sued for res judicata purposes).

       See Roth v. Gulf Atlantic Media &c., 244 Ga. App. 677, 679 (1) (536 SE2d 577) (2000). Holmes does not dispute that the Fulton County State Court is a court of competent jurisdiction.


text:
    A01A0887.
    McLEOD v. THE STATE.
    (554 SE2d 507)
   Ellington, Judge.

Maureen McLeod entered a plea of nolo contendere to one count of improperly stopping her car, OCGA § 40-6-123 (c). Proceeding pro se, McLeod appeals, contending the trial court failed to advise her that a plea could have an impact on her immigration status, as required by OCGA § 17-7-93 (c), and that the trial court imposed an overly severe sentence. For the reasons which follow, we affirm.

McLeod’s vehicle was rear-ended by a vehicle driven by Eric Albert Tillman. McLeod was charged with reckless driving, OCGA § 40-6-390; Tillman was charged with following too closely, OCGA § 40-6-49. After a hearing, Tillman entered a nolo plea, and the trial court suspended the fine. McLeod entered a nolo plea to improper stopping; the trial court sentenced her to 60 days in jail, suspended on completion of defensive driving school, and fined her $300 plus court costs.

1. McLeod contends the trial court violated OCGA § 17-7-93 (c) which provides:

In addition to any other inquiry by the court prior to acceptance of a plea of guilty, the court shall determine whether the defendant is freely entering the plea with an understanding that if he or she is not a citizen of the United States, then the plea may have an impact on his or her immigration status. This subsection shall apply with respect to acceptance of any plea of guilty to any state offense in any court of this state or any political subdivision of this state.

As a preliminary matter, we conclude this Code section applies when a defendant pleads nolo contendere. Williams v. State, 174 Ga. App. 506 (330 SE2d 435) (1985) (a plea of nolo contendere was intended to stand upon the same footing as a guilty plea in all respects except where otherwise specifically provided); State v. Kight, 175 Ga. App. 65-66 (1) (332 SE2d 363) (1985) (applying OCGA § 17-7-93 (b) in the context of a plea of nolo contendere). See Uniform Superior Court Rules 33.1 (B) (“Procedurally, a plea of nolo contendere should be handled under these rules in a manner similar to a plea of guilty.”); 33.7 (“The judge shall not accept a plea of guilty or nolo contendere without first determining, on the record, that the plea is voluntary.”); 33.8 (C) (2) (“The judge should not accept a plea of guilty or nolo contendere from a defendant without first . . . [ijnforming the defendant on the record . . . that a plea of guilty may have an impact on his or her immigration status if the defendant is not a citizen of the United States.”).

McLeod seeks to set aside her nolo plea because the trial court “did not inform [her] of any possible implications on her immigration status by entering a plea.” OCGA § 17-7-93 (c), however, does not require the trial court to recite formulaic advice to a defendant, but rather requires the trial court to “determine” that the defendant is entering the plea “with an understanding that if he or she is not a citizen of the United States, then the plea may have an impact on his or her immigration status.” Here, the record as a whole indisputably shows that McLeod realized a plea could have an effect on her immigration status. At the hearing, McLeod’s attorney objected to the imposition of probation because “the probation . . . could serve as an impediment to . . . her ability to apply for U. S. citizenship which has been ongoing.” Indeed, the attorney told the court that a previous plea and probated sentence had interfered with earlier immigration proceedings. Therefore, the face of the record shows that the trial court complied with OCGA § 17-7-93 (c).

Furthermore, OCGA § 17-7-93 (c) is the only source of a requirement that a defendant be advised of the possible effect of a plea on immigration status. Palacios v. State, 250 Ga. App. 794, 795 (554 SE2d 498) (2001). A resident alien’s guilty plea is not rendered involuntary by the fact that she was unaware that she might be deported because the effect of the plea on her immigration status is deemed a “collateral consequence” of the plea. Id. A guilty plea will not be set aside because the defendant is not advised of possible collateral consequences of her guilty plea. Williams v. Duffy, 270 Ga. 580, 581 (1) (513 SE2d 212) (1999).

We take this opportunity to emphasize that the language of OCGA § 17-7-93 (c) does not limit the trial court’s duty to those cases in which the trial court is aware of a defendant’s immigration status. Because a person’s citizenship may not be apparent, we urge all courts accepting pleas of guilty or nolo contendere to any state offenses to include this disclosure as a matter of routine. See USCR 33.7; 33.8.

2. In three related enumerations, McLeod contends the trial court punished her too severely.

“There is a presumption that a sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party asserting its impropriety.” (Citation omitted.) Palmore v. State, 236 Ga. App. 285 (511 SE2d 624) (1999). “Unless a sentence is so overly severe or excessive in proportion to the offense as to shock the conscience, a legislatively authorized punishment does not ordinarily exceed” the Eighth Amendment prohibition of cruel and unusual punishment, which includes arbitrary and disproportionate sentences. Small v. State, 243 Ga. App. 678, 680 (3) (534 SE2d 139) (2000). Where a trial court abuses its discretion and imposes a sentence which is overly severe and disproportionate in a specific case, the sentence exceeds constitutional limits. Id.

McLeod contends the trial court informed her “that it would be punishing her for her holding out for a jury trial.” But McLeod failed to cite any evidence in the record or transcript that the trial court punished her “for exercising her constitutional right to a jury trial” by initially pleading not guilty.* Accordingly, this Court will not consider this enumeration. Court of Appeals Rule 27 (c) (3) (i).

McLeod also contends that the sentence the trial court imposed was disproportionate to the charge and that it was disproportionate to the sentence given to Tillman. First, the sentence imposed fell within the allowed sentencing range. OCGA §§ 17-10-3; 40-6-1; 40-13-60. Georgia law does not require courts to treat equally both drivers cited for an accident. See Daniel, Ga. Criminal Trial Practice (1999 ed.), § 26-4, pp. 794-795. Furthermore, in this case there was a factual basis for the severity of McLeod’s punishment and the disparate treatment as between the two drivers. Specifically, McLeod had several previous convictions for moving violations. More importantly, the trial court heard evidence that McLeod intentionally braked in front of Tillman’s vehicle in retaliation for an earlier incident in which McLeod had been unable to pass Tillman. During McLeod’s sentencing, the trial court told her that the ‘Very aggravating” factual basis for her plea resulted in the harsher sentence. See Daniel, Ga. Criminal Trial Practice (1999 ed.), § 26-31, pp. 853-856. The trial court did not abuse its discretion in sentencing McLeod.

Decided August 24, 2001.

Maureen M. McLeod, pro se.

Steven L. Harris, Solicitor-General, for appellee.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       We note that in the State’s brief the prosecutor informs this Court that the State does not object to the withdrawal of McLeod’s nolo plea. Indeed, the State affirmatively requests this Court to remand this case with instructions that the trial court declare the plea void, ab initio, and grant McLeod a trial. A remand for this purpose would be useless, however, because more than 180 days have passed since McLeod’s misdemeanor conviction of traffic laws became final, and Georgia law therefore forbids any new challenge to the conviction. OCGA § 40-13-33; see Grant v. State, 231 Ga. App. 868 (501 SE2d 27) (1998).

       By comparison, a guilty plea entered in ignorance of the constitutional rights waived thereby is invalid and subject to reversal under Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969), and its progeny. Warner v. State, 214 Ga. App. 343-344 (447 SE2d 692) (1994). Even regarding rights of a constitutional magnitude, however, a guilty plea will not be set aside where the record as a whole demonstrates, as it does here, that the defendant understood the rights she was waiving and the possible consequences of her plea. Raley v. State, 241 Ga. App. 713, 714 (1) (527 SE2d 590) (2000); King v. State, 215 Ga. App. 139, 140 (1) (449 SE2d 870) (1994).

       Indeed, the record suggests that the trial court rejected the prosecutor’s argument that McLeod’s delay in pleading guilty had caused “additional prosecutorial expense.”

       Although not set out in an enumeration of error, McLeod raises the specter of “racial animus,” implying that the trial court favored Tillman, who is white, over McLeod, who is black. Again, McLeod failed to support this assertion, and we do not address it.


author: Barnes, Judge.

text:
    A01A1210.
    In the Interest of C. M., a child.
    (554 SE2d 510)
   Barnes, Judge.

The appellant, mother of C. M., appeals the termination of her parental rights to C. M. She asserts there is no clear and convincing evidence to support a finding that C. M.’s deprivation was likely to continue and, therefore, the trial court erred in terminating her parental rights. We disagree and affirm.

The trial court may terminate parental rights after satisfying a two-step analysis. First, the court must find that there is parental misconduct or inability supported by clear and convincing evidence that: (i) the child is deprived; (ii) lack of proper parental care or control caused the deprivation; (iii) the cause of deprivation is likely to continue; and (iv) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. Former OCGA § 15-11-81 (b) (4) (i)-(iv) (current § 15-11-94); In the Interest of L. H., 236 Ga. App. 132 (1) (511 SE2d 253) (1999). After making findings on these four factors, the court must then determine whether terminating parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. Former OCGA § 15-11-81 (a) (current § 15-11-94 (a)).

On appeal, we view the evidence in the light most favorable to the State and determine whether a rational trier of fact could have found by clear and convincing evidence that the mother’s rights to custody have been lost. In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). Additionally, we must defer to the juvenile court’s factfinding and not weigh the evidence or determine witness credibility. In the Interest of L. H., supra, 236 Ga. App. at 133.

In this case, the mother asserts the trial court’s finding that the deprivation “was likely to continue was against the weight of the evidence.” She argues that because the Department of Family & Children Services (“DFCS”), due to the nonreunification order, did not work with her on parental issues before the termination hearing, the State’s evidence is antiquated and insufficient to support a finding of present or likely future deprivation.

The termination hearing in this case was held after DFCS implemented an adoption permanency plan and the juvenile court issued a nonreunification order. Although DFCS did not work with the mother on her parenting skills after the court issued the nonreunification order and before the termination hearing, it did allow her to visit her child. The juvenile court relied on evidence produced from these parental visits and the past evidence supporting DFCS’s intervention in the mother’s relationship with C. M. to terminate the mother’s parental rights.

Multiple witnesses testified about the circumstances and conditions that resulted in DFCS taking custody of C. M. and the juvenile court’s nonreunification order. C. M.’s caseworker, his counselor at the mental health facility, the principal of his school, and his third grade teacher testified specifically about C. M.’s severe behavior problems before being removed from his mother’s custody. C. M. would hit other children, kick teachers, and make verbal threats. He had to be physically restrained three times a week, and it sometimes took two adults to restrain the seven-year-old child. He used a lot of obscene language, was abusive toward his teachers and peers, and would run all over the school building. The school called the sheriff’s department on more than one occasion because C. M. had run away. C. M.’s principal testified that he made numerous attempts to contact C. M.’s mother about his behavior. They called her at home, at work, sent notes home with C. M., and mailed letters to her. The principal was never able to make contact and talk with her about her son’s discipline problems.

After another problem at school, the sheriff’s department took C. M. to a mental health center. A doctor determined that he was violent, out of control, and a danger to himself and others and recommended placement in the Central State Hospital and anti-hyperactivity medication. When C. M.’s mother refused to give consent for C. M.’s treatment, DFCS obtained custody. According to C. M.’s mental health counselor, C. M. was so out of control that any reasonable person should have recognized that he had a problem and needed help.

Numerous witnesses testified that C. M.’s behavior and overall well-being drastically improved after the State removed him from his mother’s custody. Indeed, his teacher testified that in her ten years of teaching experience, C. M. “made more academic progress in one year that I ever had another child make.” His mental health counselor attributed 98 percent of his improvement to the change in his environment. Despite C. M.’s dramatic progress, his mother still disputed that his medication helped him and expressed the ongoing opinion that he did not need to be on any medication.

After C. M.’s removal from his mother, the juvenile court determined that C. M. was deprived. DFCS then developed a nonreunification plan and recommended adoption as a permanent goal, both of which were accepted by the Judicial Citizens Review Panel. The mother appealed the review panel’s findings to the juvenile court, which held hearings on the nonreunification and adoption plans. During this hearing, a licensed clinical social worker testified that he had diagnosed the mother with personality disorder and intermittent explosive disorder. In his opinion, the mother posed a danger to C. M. if she did not obtain ongoing treatment by a psychologist or psychiatrist. At the time of this hearing, the mother had not completed treatment. After this hearing, the juvenile court entered a nonreunification order and directed DFCS to find an adoptive family for C. M. The mother did not appeal this order. In the termination hearing, a DFCS social worker testified that, to her knowledge, the mother still had not completed treatment for herself. While DFCS searched for an adoptive family, it allowed the mother to visit C. M. Two of C. M.’s caseworkers and his counselor at the mental health facility testified during the termination hearing that C. M.’s behavior severely deteriorated after these visits. Due to this fact, DFCS stopped the visits temporarily in an attempt to get C. M.’s behavior under control and to determine if the visits contributed to his erratic behavior. When the visits stopped, C. M.’s behavior improved.

The mother did not testify in the termination hearing or present any witnesses on her behalf. Based on the above evidence, the juvenile court terminated her parental rights.

Appellant correctly asserts that “past unfitness alone is insufficient; clear and convincing evidence of present unfitness is required.” (Emphasis in original.) In the Interest of J. J., 225 Ga. App. 682, 683 (2) (484 SE2d 681) (1997). However, this does not mean that the juvenile court is prohibited from considering past evidence of unfitness in determining if deprivation is likely to continue. In the Interest of R. N., 224 Ga. App. 202, 204 (1) (c) (480 SE2d 243) (1997). “The court [is] entitled to infer from the evidence that, despite the best efforts of DFACS and many other social workers and charities, the same pattern of deprivation would continue each time the children were reunited with their mother.” Id. Moreover, “the juvenile court is not required to reunite a child with [a] parent in order to obtain current evidence of deprivation or neglect.” (Punctuation omitted.) In the Interest of A. W., 240 Ga. App. 259 (523 SE2d 88) (1999).

Decided August 24, 2001.

Nelson & Smith, Carlton K. Nelson III, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Lewis & King, Daniel M. King, Jr., Hicks & Massey, Stephanie R. Sweet, for appellee.

After carefully reviewing the evidence, we find that the juvenile court’s finding that C. M.’s deprivation was likely to continue is supported by clear and convincing evidence.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       The 2000 amendment, Ga. L. 2000, p. 20, reorganized and renumbered Chapter 11 of Title 15. Former OCGA § 15-11-81 is now OCGA § 15-11-94. The amendment took effect on July 1, 2000, however, and this case was decided April 6, 2000, before its effective date.


author: Miller, Judge.

text:
    A01A1494.
    BAKER v. THE STATE.
    (554 SE2d 324)
   Miller, Judge.

Construed in favor of the guilty verdict, the evidence showed that a passenger threw a can containing a large amount of cocaine out a car window as police chased the eluding vehicle. The passenger escaped, but the driver was apprehended and found with a large amount of cash. He was convicted of various traffic violations and of possession of cocaine with intent to distribute. Enumerating the insufficiency of the evidence on the drug conviction and ineffective assistance of counsel, he moved for a new trial, which the court after an evidentiary hearing denied. He raises the same two issues on appeal. Discerning no error, we affirm.

1. Regarding sufficiency of the evidence, an appellate court does not weigh the evidence nor determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, i.e., whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The conviction challenged here is the drug conviction, the essential elements of which are the possession of cocaine with the intent to distribute.

Here the evidence showed that at 2:30 a.m. police observed Danny Baker driving a vehicle at an excessive rate of speed. As they began to follow him, he abruptly turned right without signaling and forced another vehicle off the road. The police activated their blue lights, and Baker sped away to elude capture. As Baker drove near a cornfield, his passenger threw a can that contained over 17 grams of cocaine out the car window. Baker slowed the vehicle to allow the passenger to escape into the cornfield, and Baker then brought the car to a stop at a dead end. When apprehended, he was found with a pager and over $1,100 in cash, of which the most common denomination was $20 bills. Testimony showed that such was indicative of drug distribution. The passenger was never found and did not testify.

Baker’s primary argument is that the evidence linked only the unknown passenger and not Baker to the cocaine. Price v. State upheld a drug conviction under similar facts, holding first that joint constructive possession with another would sustain a conviction for possession of contraband. Price then held that the defendant-driver’s attempt to elude officers and the passenger’s act of throwing cocaine out the window were sufficient evidence of joint constructive possession. The amount of cocaine recovered (over 26 grams) and the large amount of money found on the defendant (nearly $3,000) supported the conviction of possession with intent to distribute. The material facts here tying Baker to the cocaine and to an intent to distribute are indistinguishable; indeed, we have the additional evidence that Baker purposely slowed down the vehicle so the passenger could escape into the cornfield. The evidence sufficed to sustain Baker’s drug conviction.

2. Baker contends that his trial counsel rendered ineffective assistance in that counsel failed to locate and call the unknown passenger as a witness. At the motion for new trial hearing, only Baker testified, who claimed that he made his counsel aware of the need to subpoena the passenger (known to Baker only as “John”) for trial, and that the guilty verdict would have been different if “John” had testified. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. We affirm the trial court’s findings in this regard unless clearly erroneous.

Recognizing that trial strategy and tactics do not equate with ineffective assistance, Baker in his brief argues, “It cannot be asserted that the failure to call John as a witness was trial strategy because there is nothing in the record to explain the failure to call John. We don’t know if trial counsel even attempted to find John.” Since appellate counsel, who had more time, also was unable to produce the witness at the motion for new trial hearing, the trial court could correctly assume that trial counsel attempted to locate the witness but faced insurmountable obstacles.

Moreover, similar to the defendant in McClarity v. State,* Baker misapprehends the burden of proof. Baker, not the State, must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. As in McClarity and in Foreman v. State, Baker did not call his trial counsel as a witness at the hearing on his motion for new trial. Thus, he made no affirmative showing that the purported deficiency in his trial counsel’s representation was indicative of ineffectiveness and was not an example of a conscious and deliberate trial strategy. Trial counsel may have located and interviewed the witness and determined that his testimony was unhelpful.

In the absence of contrary evidence, the trial court is to presume that trial counsel’s actions are part of trial strategy. Thus, unless the matter relates to an error allegedly made during the course of the trial that can be determined purely from the trial record, the failure to call trial counsel as a witness in the motion for new trial hearing alone allows the trial court to assume that the matter was a deliberate trial strategy and to rule against defendant’s claim of ineffective assistance.

Based on this reasoning, we have affirmed findings of effective assistance where defendant claimed that his counsel failed to find or call a key witness but where the defendant failed to call counsel to testify as to the matter. Also, without the missing witness’s testimony at the post-trial hearing, no evidence shows what the witness would have said at the original trial, so it would be pure conjecture to conclude the witness would have helped the defense. No evidence supported a finding that Baker’s trial counsel’s performance was deficient.

Nor did the evidence show that the alleged deficiency prejudiced the defense. Where the missing witness does not testify at the motion for new trial hearing, no evidence supports the claim that the witness was crucial to the defense or that the witness could have been located. “Thus, even if we were to assume that trial counsel should have taken additional steps to locate and interview this witness, [Baker] has failed to show how this failure prejudiced his defense.” The trial court did not clearly err in concluding that Baker failed to carry his burden of showing prejudice.

Decided August 24, 2001.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Ronald R. Parker, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-13-30 (b).

       240 Ga. App. 37 (522 SE2d 543) (1999).

       Id. at 38-39 (1).

       Id. at 39 (1).

       Id.

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

       Id.

       See Rogers v. State, 247 Ga. App. 219, 232 (18) (b) (543 SE2d 81) (2000).

       See Corza v. State, 273 Ga. 164, 168 (4) (a) (539 SE2d 149) (2000).

       234 Ga. App. 348, 350 (3) (506 SE2d 392) (1998).

       Id.

       Id. at 350-351 (3).

       200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).

        McClarity, supra, 234 Ga. App. at 351 (3); Foreman, supra, 200 Ga. App. at 401 (3).

        McClarity, supra, 234 Ga. App. at 351 (3).

       Id.; see Archie v. State, 248 Ga. App. 56, 58 (2) (545 SE2d 179) (2001); Harkness v. State, 225 Ga. App. 864, 866 (2) (485 SE2d 810) (1997).

        Foreman, supra, 200 Ga. App. at 401 (3); see McClarity, supra, 234 Ga. App. at 353 (3) (d).

       See Roberts v. State, 244 Ga. App. 330, 332 (2) (b) (534 SE2d 526) (2000).

        Curry v. State, 238 Ga. App. 511, 519 (3) (b) (519 SE2d 269) (1999); see Cowan v. State, 243 Ga. App. 388, 397 (10) (b) (531 SE2d 785) (2000).

       (Citations omitted.) Curry, supra, 238 Ga. App. at 519 (3) (b).


text:
    A01A1119.
    In the Interest of J. M. et al., children.
    (554 SE2d 533)
   Miller, Judge.

Following a hearing, a juvenile court terminated Theresa’s parental rights to her minor sons, J. M. and J. W. The question on appeal is whether the Worth County Department of Family & Children Services (“DFACS”) presented clear and convincing evidence that the continued deprivation of the children would or was likely to cause serious physical, mental, emotional, or moral harm to the children. We hold that such evidence was not presented and therefore reverse.

In October 1993 when J. W. and J. M. were three and five years old respectively, DFACS removed the children from the care of Theresa on the grounds that she was not providing primary care and supervision, that there was alcohol use and domestic violence in the home, and that she frequently left the children in the care of others with her whereabouts unknown. Over the next seven years DFACS created ten reunification plans, requiring Theresa to maintain her mental health, to maintain her parent-child bond with the children, to maintain a safe and sanitary home, to remain alcohol and drug free, and to demonstrate appropriate parenting skills. She failed to maintain a safe and sanitary home, failed to display appropriate parenting skills, and twice tested positive for drugs. She generally met the other two plan goals, maintaining fairly regular contact with the children except when incarcerated (once incarcerated for a period of nine months) and meeting her mental health needs.

Evidence showed that during a 76-day period when she was allowed temporary physical custody of J. M., she (1) permitted him without excuse to miss nine days of school (he had missed only one day before this), (2) was twice incarcerated for a total of eleven days, and (3) was confined for five days to a psychiatric ward for manic depression. Over the years she maintained irregular contact with DFACS, exhibited irrational behavior, threatened caseworkers, and was arrested or convicted at various times for distributing obscene material, for stalking, for prostitution, for criminal trespass, and for obstructing an officer. In October 2000, the juvenile court held a hearing to consider a petition to terminate her rights, which petition was granted. She appeals, arguing the evidence was insufficient.

On appeal of an order terminating parental rights, we consider whether under the evidence, as viewed in the light most favorable to DFACS, any rational trier of fact could have found by clear and convincing evidence that the statutory criteria for terminating parental rights were proven. Those statutory criteria are twofold: whether there is evidence of parental misconduct or inability and whether termination is in the best interests of the children. Parental misconduct or inability is shown only through evidence that (i) the children are deprived, (ii) such deprivation is caused by the lack of proper parental care or control, (iii) the deprivation is likely to continue, and (iv) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the children.

1. Deprivation. That the children are deprived was a finding of the juvenile court in an unappealed deprivation order of January 2000. The juvenile court judicially noticed its prior orders at the hearing and in its termination order of December 6, 2000. The determination of deprivation is binding on Theresa and satisfies the first factor.

2. Lack of Parental Care or Control. In determining lack of parental care or control, a court shall consider, among other things, (i) a medically verifiable deficiency of the parent’s mental or emotional health that renders the parent unable to provide adequately for the child, (ii) chronic unrehabilitated abuse of controlled substances that renders the parent incapable of providing adequately for the child, and (iii) felony convictions resulting in imprisonment that has a demonstrable negative effect on the quality of the parent-child relationship. These considerations are of little import here, as DFACS caseworkers conceded that Theresa successfully received treatment for her mental disorder and that they knew of no chronic drug abuse (over the years multiple drug tests were done, with one in 1996 and one in 1998 showing evidence of cocaine). With the exception of a nine-month period of imprisonment from October 1999 to July 2000, Theresa maintained fairly regular contact with the children over the seven years.

As the children were not in Theresa’s custody, the court could also consider whether she failed significantly, for a period of one year or longer, to develop and maintain a parental bond with the children in a meaningful, supportive manner or to comply with the reunification plans. No evidence showed the lack of a parental bond other than the nine-month period of no contact while she was incarcerated. Evidence showed that while she complied with some of the reunification plan goals, she failed to meet the goals of providing a safe and sanitary home, of remaining drug free, and of demonstrating appropriate parenting skills.

Other evidence showed that Theresa was unable during a 76-day trial period to keep her son regularly in school and that during that same period she had two incarcerations for a total of eleven days and spent five days away from home in psychiatric treatment. Her constant difficulties with the law, her failure to cooperate and maintain regular contact with DFACS, her irrational behavior, her threats to caseworkers, and the other evidence cited above lead us to the conclusion that a rational trier of fact could have found clear and convincing evidence that she lacked proper parental care and control, resulting in the children’s deprivation.

3. Cause of Deprivation Likely to Continue. Theresa’s continued behavior as demonstrated over the seven years the children have been in the custody of DFACS supports the juvenile court’s conclusion that the cause of the deprivation is likely to continue. Evidence of past conduct is considered in reaching this conclusion.

4. Continued Deprivation Likely to Cause Serious Physical, Mental, Emotional, or Moral Harm to the Children. Herein lies the problem. After cross-examining Theresa, DFACS put oh only two former caseworkers and some exhibits to establish its case. None of these witnesses testified to any potential or actual serious physical, mental, emotional, or moral harm to the children. None testified that the children were thriving in foster care, that the children had been or would be seriously affected by Theresa’s continuing to have a parental relationship with the children, or that the children were experiencing any harm caused by “foster care drift.” There are some indirect references to good foster care in the case plans, but these plans were submitted to show the case plan goals, not to show psychological harm or benefits to the children. This is hardly clear and convincing evidence. The juvenile court’s conclusory statements that DFACS had met its burden on this issue were unsupported by any findings.

In the Interest of K. J. involved similar facts. There the father’s repeated incarcerations supported findings that the father’s lack of parental care or control caused the child to be deprived and that this deprivation was likely to continue. The termination order also contained a summary statement that the continued deprivation would likely cause serious physical, mental, emotional, or moral harm to the child.* Nevertheless, we reversed, holding that “an order terminating parental rights must contain explicit findings supporting the conclusions that by reason of the deprivation the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” We explained that a “dry recitation that certain legal requirements have been met is insufficient to satisfy the requirements of the law. The trial judge is to ascertain the facts and to state not only the end result of that inquiry but the process by which it was reached.” Since the trial judge in K. J. did not set forth any facts supporting this conclusion, we determined that this was reason enough to reverse. Similarly, here the juvenile court failed to set forth facts supporting its conclusion.

Moreover, as in K. J., our own review of the record fails to yield any evidence on this issue. Like K. J., neither caseworker testified that the children were likely to suffer serious harm if parental rights were not terminated. No one testified that the children’s relationship with Theresa was harmful to the children. There was no expert testimony regarding the effect on the children if parental rights were not terminated. Similar to K. J, the lack of evidence and findings on this matter precludes us from concluding that the evidence authorized the juvenile court to find by clear and convincing evidence that the children were likely to suffer serious physical, mental, moral, or emotional harm; thus, we are constrained to reverse.

Decided August 27, 2001.

Joseph I. Carter, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W Hyman, Assistant Attorneys General, Simpson & Cross, Melanie B. Cross, for appellee.

Judgment reversed.

Andrews, P. J., and Eldridge, J., concur.

        In the Interest of E. C., 225 Ga. App. 12, 13 (482 SE2d 522) (1997); see OCGA § 15-11-99.

       OCGA § 15-11-94 (a); see E. C., supra, 225 Ga. App. at 14.

       OCGA § 15-11-94 (b) (4) (A) (i)-(iv); E. C., supra, 225 Ga. App. at 14.

        In the Interest of R. G., 249 Ga. App. 91, 93 (1) (a) (547 SE2d 729) (2001); E. C., supra, 225 Ga. App. at 14-15.

       OCGA § 15-11-94 (b) (4) (B) (i)-(iii).

       OCGA § 15-11-94 (b) (4) (C) (i), (iii).

        In the Interest of A. M. L., 242 Ga. App. 121, 123-124 (1) (c) (527 SE2d 614) (2000) (mother’s conduct over seven years may be a good predictor other future conduct).

        In the Interest of L. S. D., 243 Ga. App. 626, 627 (534 SE2d 109) (2000); E. C., supra, 225 Ga. App. at 16.

       226 Ga. App. 303 (486 SE2d 899) (1997).

       Id. at 306-307 (2) (a).

       Id. at 307 (2) (b).

       (Citation and punctuation omitted.) Id.

       (Citations and punctuation omitted.) Id.

       Id. at 307-308 (2) (b).

       See id. at 308 (2) (b).

       Id. at 309 (2) (b).


author: Phipps, Judge.

text:
    A01A1179.
    MOTANI et al. v. WALLACE ENTERPRISES, INC.
    (554 SE2d 539)
   Phipps, Judge.

Wallace Enterprises, Inc. sued Sonya Enterprises, Inc. and Nasiruddin Motani for failure to pay a debt in the amount of $10,234.10 and for service charges associated with a check returned for insufficient funds. Sonya and Motani appeal the trial court’s order striking their answers, entering judgment against them and imposing monetary sanctions for failing to comply with the court’s order on a motion to compel. We find that the trial court abused its discretion by imposing such a severe sanction in the absence of any evidence of wilfulness, bad faith or conscious disregard of an order and remand for the imposition of more appropriate sanctions. Motani also appeals the trial court’s failure to grant his motion for summary judgment. Because the trial court issued no ruling on Motani’s motion, this claim presents nothing for review.

1. On August 23,1999, Wallace served separate sets of interrogatories, document requests and requests for admission on Sonya and on Motani. Sonya and Motani served written responses to the discovery requests on September 27, 1999. On October 5, 1999, counsel for Wallace wrote to counsel for Sonya and Motani and requested supplemental responses to the discovery requests and an opportunity to review certain of the documents responsive to those requests. After receiving no response to its counsel’s letter, Wallace filed a motion to compel on December 22, 1999. On March 8, 2000, the parties consented to an order on Wallace’s motion to compel whereby Sonya and Motani would provide the names of their respective accountants and would make available the documents requested by Wallace by March 14, 2000, or, in the alternative, copy all requested documents and mail them to Wallace’s counsel. When Sonya and Motani failed to provide the agreed information or documents, Wallace filed a motion to strike their answers, for judgment on the pleadings and for sanctions.

The trial court conducted a hearing on Wallace’s motion on May 18, 2000. Counsel for Sonya and Motani told the court that he was handling the case by himself and that he had inadvertently failed to mark the response date on his calendar. He explained that he was preoccupied with other matters and that he was on a previously scheduled vacation on March 14 (the day the documents were to be produced). When he returned on March 20, he telephoned Wallace’s counsel’s office and informed them what had happened and told them that he would make arrangements to pick up the documents from the accountants himself. He picked up the documents on March 22 and returned to his office to find Wallace’s motion.

On May 25, the trial court granted Wallace’s motion, finding that counsel for Sonya and Motani “was unable to provide a legal basis for his failure to comply” with the order on the motion to compel. In its order, the trial court found that Wallace’s counsel had reviewed some of the requested documents on March 30 and the remainder in mid-April, but that copies of documents requested from counsel for Sonya and Motani had not been provided.

When a party fails to obey an order to provide or permit discovery, including an order to produce, the trial court has the option of imposing several sanctions of which the most severe is that imposed here — striking out pleadings and rendering judgment by default against the disobedient party. As a general rule, a trial court should attempt to compel compliance with its orders through the imposition of less drastic sanctions, reserving the sanctions of dismissal and default for the most flagrant cases — where the failure to comply is wilful, in bad faith or in conscious disregard of an order. We will not, however, interfere with a trial judge’s exercise of the broad discretionary powers authorized under the discovery provisions of the Civil Practice Act in the absence of an abuse of discretion.

Before imposing the ultimate sanction of dismissal or default judgment, the court must first make a determination, after notice and an opportunity for hearing, that the failure to comply with the order was wilful. The existence or nonexistence of wilfulness should be considered in the context of the entire period from the date the discovery requests were served in August 1999 until the time the documents were produced. Here, Sonya and Motani provided timely written responses to the discovery requests and later produced the requested documents for review. They did not, however, provide copies of the requested documents during that period. At the hearing on Wallace’s motion, counsel for Sonya and Motani presented evidence that his failure to comply on the required date was accidental and not intentional. We find no evidence that the failure was wilful, in bad faith or in conscious disregard of the consequences of failing to comply with the order.

“We do not condone [Sonya’s or Motani’s] failure to meet [their] discovery obligations, but we conclude that the sanction chosen by the court was too severe for the facts presented.” The case is remanded for imposition of appropriate sanctions “which adequately compensate [Wallace] for delays and costs, punish [Sonya and Motani] so as to deter any future noncompliant conduct, and generally assure [ ] respect for the court’s orders,” taking into account the amount at issue in the case. If, after appropriate sanctions are imposed, Sonya and Motani fail to comply fully with the court’s order on the motion to compel, more severe sanctions may be warranted.

2. On April 26, 2000, Motani filed a motion for summary judgment, claiming that the debt sued upon was not his obligation. Wallace did not respond to the motion before the trial court granted its motion to enter judgment against Sonya and Motani. Nor did the trial court rule on Motani’s summary judgment motion. As a result, this claim presents nothing for our review.

Decided August 27, 2001.

Smith, White, Sharma & Halpern, Furman Smith, Jr., for appellants.

Mills & Moss, Steven M. Mills, David C. Moss, Paul J. Dzikowski, for appellee.

3. Motani claims that even if the trial court was justified in striking his answer, the pleadings did not authorize judgment against him. Given our holding in Division 1, we need not reach this issue.

Judgment reversed and case remanded.

Smith, P. J., and Barnes, J., concur.

       OCGA § 9-11-37 (b) (2) (C); Schrembs v. Atlanta Classic Cars, 261 Ga. 182 (402 SE2d 723) (1991); Joel v. Duet Holdings, 181 Ga. App. 705, 707 (353 SE2d 548) (1987).

        Hernandez v. State of Ga., 200 Ga. App. 368, 369 (408 SE2d 160) (1991).

       Id.

       Id. at 370.

        Schrembs, supra at 183.

       Sonya and Motani interposed objections to several of the document requests, but ultimately agreed to produce all requested documents.

        Gen. Motors Corp. v. Conkle, 226 Ga. App. 34, 46 (1) (c) (486 SE2d 180) (1997) (physical precedent). Compare Schrembs, supra at 183 (“Schrembs had almost 11 months to answer a single, straightforward interrogatory asking for a single answer and failed to do so.”); Stolle v. State Farm &c. Ins. Co., 206 Ga. App. 235, 236-237 (3) (424 SE2d 807) (1992) (Stolle refused to respond to any discovery requests for almost a year and admitted that his failure to respond was due to the fact that he did not return the necessary documents to his own attorney).

        Gen. Motors Corp., supra.

       See Northeast Ga. Artificial Breeders Assn. v. Brown, 209 Ga. 547 (3) (74 SE2d 660) (1953) (this court will not consider questions on which no ruling has been made by the trial court).


text:
    A01A1236.
    HARVEY et al. v. LINDSEY.
    (554 SE2d 523)
   Phipps, Judge.

Larry O. Harvey and Patricia O’Quinn Harvey (collectively Harvey) filed an application for contempt against Jo Edith Lindsey and R. M. Hightower. Harvey alleged that Lindsey and Hightower had wilfully and intentionally violated a court order issued in November 1999 that set forth guidelines for certain easements in which Harvey and Lindsey shared a joint interest. The trial court denied the application, finding Lindsey not in wilful violation of its order but making no finding as to Hightower.

In this appeal, Harvey contends that the trial court erred by modifying rather than clarifying its earlier order, by applying an incorrect standard to find that Lindsey was in nonwilful contempt of the order, and by failing to address the question of Hightower’s contempt. Only the last issue has any merit.

Jo Edith Lindsey and Patricia O’Quinn Harvey are sisters. After their father, E. O. Rutland, died in 1986, each inherited various tracts of land from his estate. Lindsey inherited a 129.55-acre farm off Rutland Road in Tift County. Their sister, Frankie Esther Homer, inherited a 100.5-acre farm that adjoins the Lindsey farm on its north side, and Patricia Harvey inherited a 23.5-acre tract that borders the south side of the Lindsey farm. About five years before his death, Rutland had conveyed another tract consisting of fifty acres which borders the west side of the Lindsey farm. Rutland conveyed the 50-acre parcel to Larry O. Harvey, the husband of Patricia O’Quinn Harvey, Bobby Lindsey, the spouse of Jo Edith Lindsey, and also to Wayne Franks, Henry Rutland, and Charles Kent, Jr. Each obtained an undivided one-fifth interest. Both the 50-acre tract and the 23.5-acre tract are landlocked. Under the distribution of assets of E. O. Rutland’s estate, a connection of field and nonfield roads bordering on and meandering over portions of the Homer and Lindsey farms comprise easements for ingress and egress to the 50- and 23.5-acre parcels.

After Lindsey erected two gates and allowed her neighbor, R. M. Hightower, to install a satellite dish within the easement area, Harvey sued for the removal of these obstructions. The trial court entered an order permitting Lindsey to maintain gates inside the easement as long as she provided access keys to Harvey. The court also found that Hightower’s satellite dish did not impair the easement. That order was appealed, and we reversed, finding the obstructions constituted unauthorized encumbrances upon the dominant tenement’s easement belonging to Harvey.

On remand, the trial court issued an order in November 1999 that provides:

All easements of record, traditional easements as well as those easements perpetual in nature, shall remain unobstructed with rights of use to those persons to whom an easement has been granted as well as those passing over said properties via said easements with permission of the parties hereto or those persons to whom said easement has been granted.

The order states that

the general maintenance, upkeep and repair of said easements shall be the joint responsibility of the owner of the fee upon which said easements are located and those with easement rights, and they shall be equally responsible for cost and materials needed to maintain the same in the condition suitable for its intended use as a travel way to and from properties owned by the respective parties.

The order also directs that “[n]o gates or other access control devices shall be erected over any of the said easements,” and it required the removal of the satellite dish within 30 days. The order also obligated Lindsey to complete within 60 days any and all repairs to easements made “impassable” by “ditches, drainage ways and erosion caused by the diversion of water or other intentional or negligent destruction of easements. . . .”

More than 60 days later, dissatisfied with the responses to the order, Harvey sought to have Lindsey and Hightower found in contempt. Before conducting a hearing on the matter, in order to gain familiarity with the location and condition of the easements, the trial judge, accompanied by counsel for the parties, rode in a vehicle over the easements.

At the hearing, Bobby Lindsey, the executor of Rutland’s estate, explained that the easements had been drawn to ensure access to the 50-acre tract and the 23.5-acre tract. Thus, when the northern route that included an area prone to flooding became wet, access to the two tracts could still be accomplished via an alternate route. Bobby Lindsey testified that after part of the roadway had been washed out by rain, in part due to farming operations, he made sure that this area known as “the waterway” was reworked. Dirt and hay were used to fill some holes and to smooth out the road, and in his view, these measures seemed to solve the erosion problem. Bobby Lindsey testified that these repairs were performed within 60 days of the court order. He further testified that within 60 days of the order, both gates had been pulled back and chained to make them unusable. This allowed access to the property.

Patricia Harvey testified that she thought that the order meant for Lindsey to remove the gates and also testified that the satellite dish was not removed within 30 days of the order. In her deposition, Jo Edith Lindsey explained that she did not understand that the order required the removal of the gates. She testified that she thought that “shall be erected” meant only that she could not put up any new gates. Lindsey testified that the portion of the easement susceptible to flooding had been grassed over to prevent topsoil erosion. When asked whether the easements had been returned to their original condition, Jo Edith Lindsey responded, “[fit’s my belief that they are in better condition, shape than they’ve ever been, especially the last six years.”

In a detailed, comprehensive, seven-page order, the trial court clarified its earlier order and found that Lindsey was not in wilful violation of that order. Despite determining firsthand that the road was traversable, the court nevertheless ordered Lindsey to remove all posts and boards remaining “from where a gate previously was up.” Finding its earlier order lacking in clarity, the trial court observed that the order did not explicitly require removal of the posts, boards, and gates. The court noted, “I am not finding her in contempt for failing to do that. I did not order her to do it. The implication would be to do so. But in order to find somebody in contempt, I must find they willfully disobeyed the Court order. I don’t believe that was the case. . . .” Similarly, the trial court ordered Lindsey to remove tree limbs that were encroaching into a section of easement. But the trial court “decline [d] to find Ms. Lindsey in contempt for failure to cut the limbs because the Court didn’t tell her to cut the limbs.”

1. Harvey contends that the trial court erred in issuing an order that modified rather than clarified the earlier order. Harvey argues that the November 1999 order directed that all easements be returned to their original condition at the time they were granted; whereas, the November 2000 order found “the present condition” to be sufficient. Harvey argues that no finding was made that “original condition” and “present condition” share the same meaning. Harvey also complains that the earlier order did not concern itself with the property lines but, instead, focused on various impediments to travel caused by Lindsey’s farming operations.

In a contempt proceeding, a court may interpret and clarify an existing order but may not modify the terms and obligations already set forth. To determine whether an order has been clarified, as opposed to being modified, the test is whether the new order is a reasonable clarification or so contrary to the apparent intent of the original order as to constitute a modification. The intent is found by looking at the content of the order and the context in which it was created.

The November 1999 order set forth the respective rights and obligations of Harvey, Lindsey, and Hightower relating to the easements for ingress and egress. The November 2000 order methodically evaluated the condition of each of the easements, apparently to determine compliance with the first order. While it is true that the earlier order did not detail the boundaries of the five separate easement areas, it is also true that those boundaries were established by deed or grant and the trial court did not alter them.

Although Harvey claims that the first order required Lindsey to return all easements to their original condition, the order says no such thing. A careful reading of that order shows that Lindsey bore sole responsibility for erosion and problems caused by the diversion of water “or other intentional or negligent destruction of easements which causes any of the same to be impassable,” and only in those circumstances did she “bear the cost and expense associated with returning said easements to their original condition.”

Harvey mistakenly complains that the second order constituted a change that would relieve Lindsey of any obligation to repair any impediments to travel, including future ones caused by farming operations. On the contrary, the first order expressly directs that the easements remain free of obstructions to ensure “free and unobstructed ingress and egress,” and makes plain that Lindsey would be responsible for damage caused by farming activities. The second order could not and did not change these obligations.

As a matter of law, neither a dominant tenement nor a servient tenement can interfere with each other’s rights to use a nonexclusive easement for ingress and egress. A nonexclusive easement for ingress and egress necessarily means that trees or bushes, regardless of their age, cannot obstruct or impair travel. And, because a servient owner, like Lindsey, is not under a legal obligation to keep a private way in repair for the benefit of the dominant owner, the November 2000 order clarifies that the responsibility for maintenance and repair is contingent upon the ownership and use of the various sections that collectively comprise these easements. Having reviewed the second order, we find that it clarified the earlier order and did not alter existing rights or obligations.

2. Harvey contends that the trial court erred in finding Lindsey in “non-willful” contempt. Harvey claims that the first order required Lindsey to trim the limbs from all trees, regardless of age, to the extent that the same would, if not removed, scratch or otherwise interfere with the ingress and egress of a vehicle. Harvey contends that the trial court’s finding that limbs and trees needed cutting clearly shows that Lindsey was in wilful violation of the earlier order. We do not agree.

Under OCGA § 15-1-3 (3), “[e]very court has power [t]o compel obedience to its judgments, orders, and process. ...” As such, trial courts possess inherent power to punish for contempt. The question of whether contempt has occurred is for the trial court. When the record contains any evidence to support a trial judge’s determination that a party either has or has not wilfully disobeyed the trial court’s order, we will affirm.

Here, during the hearing, the trial court specifically observed that all of the easement areas were traversable by vehicle and in some parts, “much smoother than my driveway,” and in other parts, probably comparable to most field roads in. the locality. Even assuming that some tree limbs did need trimming, that fact alone would not establish that Lindsey knowingly and wilfully disobeyed a command of the court. The trial court did not abuse its discretion in finding that she did not do so.

Decided August 27, 2001.

Joseph I. Carter, for appellants.

Gray & Heard, Joseph B. Gray, Jr., for appellee.

3. Harvey contends that the trial court erred by issuing an order that failed to address the question of Hightower’s contempt. Harvey points out that by failing to respond to the complaint, Hightower effectively admitted that he did not comply with the court’s order directing that he remove the satellite dish within 30 days.

The burden of establishing the fact of contempt is on the party asserting it. Harvey offered uncontroverted evidence that the satellite dish was not removed within the required 30 days. An entry of service form confirms that Hightower was served with the complaint and a rule nisi order directing that he appear in court on March 17 at 9:00 a.m. Hightower did not file an answer or appear at the hearing. By ignoring the complaint, Hightower did so at his own peril. By failing to respond to allegations that he “willfully and intentionally violated this Court’s Order by failing and refusing to remove said satellite dish as ordered,” Hightower admitted those allegations and waived his defenses. On remand, we direct the trial court to address the issue of Hightower’s contempt. Although Harvey seeks costs and attorney fees, these are not obtainable in these circumstances, and OCGA § 15-6-8 (5) does not permit the fine to exceed $500.

Judgment affirmed and case remanded with direction.

Smith,

P. J., and Barnes, J., concur.

        Harvey v. Hightower, 239 Ga. App. 684 (521 SE2d 367) (1999); see Hill v. Miller, 144 Ga. 404, 407 (1) (87 SE 385) (1915) (possessor of easement over private way cannot be obstructed from using it by means of gates and fences).

        Millner v. Millner, 260 Ga. 495, 497 (2) (397 SE2d 289) (1990); Gallit v. Buckley, 240 Ga. 621, 626 (3) (242 SE2d 89) (1978).

       See Ward v. Ward, 236 Ga. 860, 861-862 (1) (226 SE2d 52) (1976).

       See id.

       See Roberts v. Roberts, 206 Ga. App. 423, 424 (2) (425 SE2d 414) (1992) (easement rights impliedly include authority to do things reasonably necessary for the enjoyment of the rights granted).

        Upson v. Stafford, 205 Ga. App. 615, 616-617 (422 SE2d 882) (1992).

       See Harvey, supra, 239 Ga. App. at 684.

       See Puryear v. Clements, 53 Ga. 232, 235 (2) (1874); see Pindar, Ga. Real Estate Law & Procedure, § 8-25.

        Griggers v. Bryant, 239 Ga. 244, 246 (1) (236 SE2d 599) (1977).

        Warehouse Carpet Sales &c. v. S.C.J. Assoc., 170 Ga. App. 352, 353 (2) (317 SE2d 328) (1984).

        G.I.R. Systems v. Lance, 228 Ga. App. 329, 331 (4) (491 SE2d 530) (1997).

       See Roberts, supra, 206 Ga. App. at 425 (2).

       See Torres v. Putnam County, 246 Ga. App. 544, 547 (541 SE2d 133) (2000).

        Martin v. Waters, 151 Ga. App. 149, 150 (2) (259 SE2d 153) (1979).

       See OCGA § 9-11-55 (a).

       See Owens v. State of Ga., 241 Ga. App. 140 (4) (525 SE2d 150) (1999); McCombs v. Southern Regional Med. Center, 233 Ga. App. 676, 681 (2) (504 SE2d 747) (1998) (all named defendants must answer complaint).

       See Johnson v. Kaplan, 225 Ga. App. 53, 56 (3) (483 SE2d 292) (1997).