author: McMURRAY, Presiding Judge.

text:
    A98A0393.
    SPARKS v. THE STATE.
    (501 SE2d 562)
   McMURRAY, Presiding Judge.

Defendant James Lewis Sparks, along with three others, was charged in an indictment with aggravated sodomy, by “placing his penis in the anus of [the female victim], . . . with force and against [her] will. . . .” Defendant was further charged with rape. The evidence showed that defendant and three of his friends took advantage of the victim’s intoxicated state to commit various acts of sexual assault.

On May 21, 1994, the victim attended a party with a female friend. After consuming some alcohol, the victim was “[g]iddy[, and] was noticeably affected. . . .” Between 2:00 a.m. and 3:00 a.m., she entered a back bedroom where “[t]here was a song playing that [she] liked, and [she] went in there, the room was empty, and [she] had just gone in there and sat down to listen to the song.” One of defendant’s co-indictees, E. B., “came into the room midway through the song and sat on the bed. . . . [They spoke of their respective] relationshipts] and things like that, just . . . life in general. . . . [But then E. B.] grabbed [the victim] by the arm and pulled [her] onto the bed.” While E. B. was orally sodomizing the victim, another coindictee, A. P. “walked into the room . . . and pulled [the victim’s] shoes off and pulled [her] pants down. . . .” E. B. “laid on top of [her] and he put his penis in [her] vagina, and then [a third co-indictee, R. B.] entered and had sex with [the victim] also, vaginal intercourse. . . .” The victim “began pulling [A. P.’s] hair and struggling that way, and telling him no, and to stop. . . . And then when [R. B.] entered [the victim], [she] was close to pretty much in tears at that time, and [she] told him no, and to please stop. . . . [W]hen [R. B.] got off [the victim, defendant] was there to the right of [her].” Defendant “pulled [the victim] off the bed and pushed [her] over it so that [her] face was in the sheets, and he entered his penis in [her] anus.” The victim “was crying loudly because it was very painful. . . .” Defendant then “pushed [the victim] from a bending over position to [where she] was right on [her] back on the bed . . . and looked directly above [her], and entered [her] vaginally at that point.” The victim “was saying no, please, please just stop, please stop now.” Both sexual acts directed by defendant towards the victim were against her will.

In a videotaped custodial interview, defendant admitted having consensual vaginal sex with the victim but denied any act of anal intercourse. The jury found defendant guilty as charged on Count 1, aggravated sodomy. He was acquitted of the indicted offense of rape but nevertheless found guilty of simple battery. His motion for new trial was denied and this appeal followed. Held:

1. Defendant first enumerates as error the failure of the trial court to charge the jury on sexual battery and simple battery as lesser offenses included within the indicted offense of aggravated sodomy.

The transcript reflects the following dialogue: “[DEFENSE COUNSEL]: I’ve thought about the Court giving the lesser included offense of sodomy, I might ask the Court to also give the lesser included offense of sexual battery. [STATE’S ATTORNEY]: I can’t think of any lesser included offense that I would oppose. THE COURT: Okay. Stick it in there by agreement of counsel. [DEFENSE COUNSEL]: If counsel would not oppose it I would ask for the lesser included offense of battery by offensive touching, simple battery. [STATE’S ATTORNEY]: Okay. THE COURT: Stick it in there.”

The trial court’s instructions to the jury charged them on sodomy as a lesser included offense to aggravated sodomy, and then charged that sexual battery and simple battery are lesser offenses included in the charge of rape. The verdict form instructs the jury on five possible verdicts: Count 1, aggravated sodomy; Count 2, rape; Count 3, sodomy; Count 4, sexual battery; and Count 5, simple battery. The trial court expressly instructed the jury that on the verdict form, Count 1, aggravated sodomy, and Count 2, rape, constitute “separate and distinct counts and will have to be decided. . . .”

“The state or the accused may, by written application to the trial judge at or before the close of the evidence, request [the court] to charge on lesser crimes that are included in those set forth in the indictment or accusation, and [the court’s] failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error.” (Citation, punctuation, and emphasis omitted.) State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550). But, “ ‘[a] trial judge never errs in failing to instruct the jury on a lesser-included offense where there is no written request to so charge.’ Comer v. State, 247 Ga. 167 (275 SE2d 309) (1981).” Gadson v. State, 264 Ga. 280, 281 (2) (444 SE2d 305).

In the case sub judice, the record is devoid of any written requests submitted by defendant to charge any lesser included offenses. The transcript shows no express request to charge sexual battery and simple battery as lesser included offenses to the indicted charge of aggravated sodomy. Rather, defendant’s oral request is ambiguous on this point. Contrary to defendant’s contention, the trial court’s assent to give the instructions orally requested does not specify aggravated sodomy. The charge as given includes instructions on sexual battery and simple battery (as orally requested), without limiting those possible alternative verdicts only to Count 2, alleging rape. Defendant did not ask for clarifying instructions regarding the form of the verdict, in the face of direct inquiry by the trial court. If defendant wished to have the jury instructed on sexual battery and simple battery as lesser-included offenses for each of the indicted offenses, he should have made a written request for such additional instructions. Yearwood v. State, 198 Ga. App. 389, 390 (3) (401 SE2d 558). Defendant’s “oral request did not conform to the procedural rules enumerated [by the Supreme Court of Georgia] in State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976).” Barner v. State, 263 Ga. 365, 367 (3) (434 SE2d 484). We find no error in the court’s charge regarding lesser included offenses, in response to defendant’s ambiguous oral requests.

2. Defendant moved for a mistrial, alleging the State’s Attorney intentionally elicited an emotional outcry from the victim during oral argument, by describing the victim’s feelings during the 45-second period in which defendant admitted having (allegedly) consensual intercourse with the victim. The denial of this motion is enumerated as error.

The transcript reflects the following: “[STATE’S ATTORNEY]: Right about now [the victim] is having her anus entered — (Pause) — . . . Now defendant is flipping her over for desert [sic]. . . . (Whereupon the victim cried aloud.) And now we’re done.” In response to defense counsel’s motion for mistrial, the trial court ruled it would “deny the motion[, but] the Court will instruct the jury to totally disregard the emotional outburst of the victim in this case.” This instruction was given, after defendant excepted to the denial of the mistrial and further excepted to curative instruction as inadequate.

“It is undeniably the right of every person accused of crime in this State to have a fair and impartial trial, free from any demonstration or disorder of a nature calculated to affect prejudicially the jurors trying his case. Patton v. State, 117 Ga. 230, 237 [(9, 10)] (43 S. E. 533). But, in the circumstances of [the case sub judice], we are not prepared to say that the refusal of the trial judge to declare a mistrial[, after giving curative instructions,] was erroneous. See Clements v. State, 123 Ga. 547 (515 SE 595); Brown v. State, 148 Ga. 264 (96 SE 435). Compare Glenn v. State, 205 Ga. 32[, 36] (52 SE2d 319). Motions of this character are addressed to the discretion of the trial judge; and, unless it can be shown that such discretion has been abused and some positive injury done by the occurrence complained of, the discretion of the trial judge will not be controlled. Inman v. State, 72 Ga. 269 [(hn. 3)]; Purvis v. Atlanta Northern Ry. Co., 145 Ga. 517 (89 SE 571). We are not authorized by the facts concerning the [victim’s single tearful outburst here] complained of to say that the trial judge abused his discretion in denying the defendant’s motion for a mistrial. To the contrary, we do not think he did.” Avery v. State, 209 Ga. 116, 126 (5), 128 (70 SE2d 716), rev’d on other grounds, Avery v. Georgia, 345 U. S. 559 (73 SC 891, 73 LE 1244). See also Messer v. State, 247 Ga. 316, 323 (6) (276 SE2d 15).

3. Defendant’s third enumeration posits the questions: “(A) whether the State’s summary withdrawal without notice of its plea offer for probation, after it had promised to leave the offer open until the day of trial and the defense relied upon that promise, was error subject to specific performance? [and] (B) Whether defense counsel provided ineffective assistance of counsel by not raising this issue with the trial court?”

(a) Defendant’s first question within this compound enumeration fails to specify any error allegedly committed by the trial court. See OCGA § 5-6-51 (4). The motion for new trial as amended does not urge the trial court erred in failing to enforce any agreed-upon plea bargain but only complains trial counsel was ineffective by not “moving . . . the Trial Court to enforce the State’s offered plea bargain which was promised by the State to be good until the day of trial, but was summarily withdrawn prior, to trial without notice to defendant or his counsel[.]” “Objections presented for the first time on appeal furnish nothing for us to review, for this court is a court for correction of errors of law committed by the trial court where proper exception is taken. . . .” Butler v. State, 172 Ga. App. 405, 406 (1) (323 SE2d 628). Consequently, this contention presents nothing for review.

(b) The State’s Attorney affirmed he orally informed defense counsel that a plea offer “would be kept open to the day of trial. . . .” He further identified “a copy of [the] plea proposal letter that [he] sent on October 5th of 1995 to the four original trial counsel, including [the attorney who] represented [defendant, and further identified] a letter that [he] sent [by] certified mail, [on] February 20th, [1997,] withdrawing the offer set forth in the 1995 letter.” The trial commenced May 12, 1997. Defendant testified at his motion for new trial that trial counsel informed him of the State’s offer of a plea bargain, for a single “[fjelony charge, ten years probation and a $1,000 fine.” Trial counsel informed defendant the State had withdrawn the offer of a plea bargain in “early ‘97.” Trial counsel also explained to defendant “the concept of First Offender treatment^ but not until] after the trial had started. . . .” Defendant admitted he “[n]ever ma[d]e a final decision as to whether or not to accept the plea offer[.]”

“It is well settled that a plea bargain agreement is a contract under Georgia law which binds both the prosecutor and defendant.” City of Baldwin v. Barrett, 265 Ga. 489, 490 (458 SE2d 619). “[P]ublic policy dictates that the prosecutor have the authority to make such contracts with the court’s approval. [But] a slavish adherence to contract law should be avoided. . . .” State v. Hanson, 249 Ga. 739, 744 (3), 746 (295 SE2d 297). See also Martin v. State, 207 Ga. App. 861, 862 (429 SE2d 332).

(c) “ ‘The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.’ OCGA § 13-3-2. ‘This is true even where the (offer) provides that it remains open for a stated time. State Hwy. Dept. v. MacDougald Constr. Co., 54 Ga. App. 310 (1) (187 SE 734) (1936).’ Greene v. Keener, 198 Ga. App. 565, 566 (402 SE2d 284) (1991). ‘Where for a consideration an option is given, or offer made, which it is agreed shall remain open and subject to acceptance for a specified time, the party who thus grants the right to accept during such specified time can not withdraw the right of the other party to accept or assent within that time. ... If without consideration a continuing offer is made, although the person making it may state a time within which it may be accepted, there is no binding contract, and he may withdraw the offer before acceptance. ... A mere offer or proposition, until accepted, may be withdrawn. ... If no time is prescribed for accepting an offer, it must be done within a reasonable time. Civil Code (1910), § 4230 (now OCGA § 13-3-2); (cits.).’ Prior v. Hilton &c. Lumber Co., 141 Ga. 117, 118 (1) (80 SE 559) (1913).” Amwest Surety Ins. Co. v. RA-LIN & Assoc., 216 Ga. App. 526, 529 (1) (455 SE2d 106).

In the case sub judice, there is no contention the State’s offer to keep the plea bargain open until trial “is supported by any consideration. Accordingly, there [was] no option for the benefit of [defendant], and [the State’s plea offer] was revocable at will before acceptance.” Amwest Surety Ins. Co. v. RA-LIN & Assoc., 216 Ga. App. 526, 530 (1), supra. It is not a slavish adherence to contract law to insist that a defendant’s purported acceptance of any plea offer be communicated to the prosecuting attorney. Here, no such acceptance was made. It follows that defendant’s trial counsel did not render ineffective assistance by failing to seek specific performance of a non-existent plea bargain.

4. After a voluntariness hearing, the trial court admitted the videotape of defendant’s custodial statement into evidence, and this evidentiary ruling is enumerated as error. Defendant contends his statement was improperly induced because the investigators offered him a hope of benefit. There is no official transcript, but we have twice carefully reviewed the videotape of defendant’s hour-long interview in its entirety and repeatedly reviewed the initial segment to which objection is made.

Defendant points to his initial reluctance to speak with the officers after being cautioned of his rights, as demonstrated by a pause of approximately seven seconds during which defendant hangs his head and looks at the floor. As defendant begins to speak, one of the officers then speaks over him and appears to say, “[T]o find out what . . . the accusations are against you. . . . That’s the only way we can do this, ... if you want information from us, then we’ve got to get information from you. . . .” Defendant then agreed to talk with the officers. He initially denied any sexual contact with the victim but subsequently admitted having what he thought was consensual intercourse for 45 seconds.

Decided April 13, 1998

Michael Abbott, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, David K. Keeton, Assistant District Attorneys, for appellee.

“To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50. “The fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it.” OCGA § 24-3-51. “The promise of a benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect.” White v. State, 266 Ga. 134, 135 (3) (465 SE2d 277). A reward of lighter punishment is generally the “hope of benefit” to which OCGA § 24-3-50 refers. Peinado v. State, 223 Ga. App. 271, 273 (1) (c) (477 SE2d 408) (physical precedent). In the case sub judice, there is no promise of a reduced charge or a lighter sentence. Any possible benefit defendant imagined he was obtaining in response to the investigator’s exhortation was entirely collateral. The trial court did not err in admitting this videotape over defendant’s objection as to voluntariness.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A98A0439.
    SPARROW et al. v. CHE.
    (501 SE2d 553)
   Andrews, Chief Judge.

George and Gail Sparrow dismissed and then refiled an action against Fu Kuei Che seeking damages arising out of an automobile accident. The trial court dismissed the second action on the basis that it was barred by the applicable statute of limitation and that lack of service on Che in the first action rendered it incapable of being renewed under OCGA § 9-2-61 (a) after the expiration of the limitation period. The Sparrows contend on appeal that if Che attempted to evade service in the first action, the second action should be renewable under § 9-2-61 (a).

On January 12, 1996, the Sparrows filed suit against Che for personal injuries and property damages sustained in the accident which occurred on January 15, 1994. Che could not be located by the process server, and he was not served with the action. Nevertheless, on March 4, 1996, Che filed an answer to the suit in which he raised the defense that there was a lack of service of process. Thereafter, the Sparrows and Che engaged in discovery until the Sparrows voluntarily dismissed the action on September 5, 1996, pursuant to OCGA § 9-11-41 (a). On October 31, 1996, the Sparrows refiled the same action against Che and served him. The second suit was filed and served on Che after the expiration of the two-year statute of limitation for personal injuries (OCGA § 9-3-33) but before the expiration of the four-year statute of limitation for property damage (OCGA § 9-3-31).

Che moved for dismissal on the basis that: (1) the Sparrows failed to file and serve the second action within the two-year personal injury limitation period, and (2) even though the second suit was filed within the six-month renewal period of OCGA § 9-2-61 (a), the renewal provisions of OCGA § 9-2-61 did not apply because without service on him in the first suit, there was no valid action to renew. The trial court granted Che’s motion and entered an order dismissing the Sparrows’ entire suit with prejudice.

1. We find no error in the dismissal of the Sparrows’ action for personal injuries. Although the Sparrows commenced their first personal injury suit within the applicable two-year limitation period, they failed to serve Che with the suit, and the limitation period expired before they voluntarily dismissed the action and refiled the second suit about two months later. Under these circumstances, the renewal provisions of OCGA § 9-2-61 (a) did not protect the second suit from the bar of the statute of limitation.

OCGA § 9-2-61 (a) provides: “When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, . . . provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.” The privilege of dismissal and renewal under § 9-2-61 does not apply where the original suit was void. Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). “The original suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit.” Id. at 360.

Since Che was not served in the first suit, that suit was void and incapable of being renewed under § 9-2-61 (a). Neither Che’s appearanee in the first suit by filing an answer and raising the defense of lack of service, nor his participation in discovery prior to the Sparrows’ dismissal was a waiver of the service defect. Glass v. Byrom, 146 Ga. App. 1, 2 (245 SE2d 345) (1978); Garrett v. Godby, 189 Ga. App. 183, 185 (375 SE2d 103) (1988). We find no merit in the Sparrows’ contention that the trial court should have allowed them to pursue discovery in the second action to determine if Che attempted to avoid service in the first action. Whether or not Che attempted to evade service does not change the fact that lack of service rendered the first action void. If Che did attempt to conceal himself to avoid service in the first action, the Sparrows’ remedy was to use the provisions of OCGA § 9-11-4 (e) authorizing service by publication and by mail where the defendant conceals himself to avoid process. Melton v. Johnson, 242 Ga. 400, 402 (249 SE2d 82) (1978).

Decided April 13, 1998.

Champion & Holbird, Thomas R. Holbird, Jr., for appellants.

Allen & Associates, Robert E. Bauer, for appellee.

2. The trial court erred, however, in dismissing the portion of the Sparrows’ suit seeking recovery of damages to their automobile, since the second suit was filed and served on Che within the four-year statute of limitation applicable to property damage.

Accordingly, the judgment of the trial court is affirmed to the extent it dismissed with prejudice the Sparrows’ personal injury claim and reversed to the extent it dismissed the Sparrows’ property damage claim.

Judgment affirmed in part and reversed in part.

McMurray, P. J, and Eldridge, J., concur.


text:
    A98A0600.
    WAITS v. GIL.
    (501 SE2d 303)
   Andrews, Chief Judge.

Janis Waits appeals from the trial court’s order granting Kimberly Gil’s motion for summary judgment. The sole issue on appeal is whether the trial court erred in finding Waits’ claim was barred by the statute of limitation because Waits was guilty of laches and failure to exercise due diligence in perfecting service on Gil.

This case arose when Waits and Gil were involved in an automobile accident on August 4, 1993. On August 2, 1995, two days before the statute of limitation was due to expire, Waits filed a Complaint for damages in Clayton County. Although the Complaint listed a correct address in Jonesboro, Georgia for defendant Gil, Gil’s address was actually in Henry County, not Clayton.

On August 8, 1995, the sheriff filed an entry of service stating that service was not perfected because Gil did not live in Clayton County. On September 29, 1995, Waits requested copies of the Complaint from the Clayton State Court clerk’s office for service in Henry County. On October 16, 1995, Waits filed a motion to transfer the case to Henry County and on October 18, 1995, the motion was granted. The case was transferred on November 30, 1995, and Gil was finally served on March 3, 1996.

“Where an action is filed within the applicable limitation period but is not served upon the defendant within five days thereafter or within the limitation period, the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible; and if he is guilty of laches in this regard, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. The plaintiff has the burden of showing that due diligence was exercised.” Smith v. Winn, 198 Ga. App. 459 (402 SE2d 79) (1991). “The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” Lawrence v. Noltimier, 213 Ga. App. 628 (445 SE2d 378) (1994) (citing Freemon v. Dubroca, 177 Ga. App. 745 (341 SE2d 276) (1986)).

Here, Waits had Gil’s correct address at the time she filed her initial complaint, yet she did not serve Gil until seven months later. Waits argues she did the best she could but she was representing herself and this resulted in delays. For example, Waits states that after her motion to transfer was granted, she sent in the required filing fee, but she mailed personal checks. Accordingly, there was a four-day delay while she obtained money orders. Likewise, the reason Gil was not served until three months after the case was filed in Henry County was because Waits was unaware she had to pay an additional $25 fee before the sheriff could serve the complaint.

The mere fact that Waits is a pro se plaintiff cannot excuse a delay of over 200 days between the expiration of the statute of limitation and service on Gil. “[I]n a civil case[,] the court cannot put a pro se litigant on a different standard from one represented by counsel.” Long v. Marion, 257 Ga. 431, 434 (360 SE2d 255) (1987); Howell v. Styles, 221 Ga. App. 781, 783 (472 SE2d 548) (1996). Moreover, this Court has held a pro se plaintiff did not exercise due diligence because he did not determine the correct county in which the defendant lived prior to filing his Complaint. In that case, the defendant was served 19 days after the statute of limitation expired and we upheld the trial court’s determination that the plaintiff had not been diligent in perfecting service due to his failure to determine the correct county in which the defendant resided. Cantin v. Justice, 224 Ga. App. 195 (480 SE2d 250) (1997). See also Nee v. Dixon, 199 Ga. App. 729, 730 (405 SE2d 766) (1991) (where appellant was at all times aware of appellee’s correct address, she cannot attempt to excuse her lack of diligence by attempting to place the responsibility on others and, once she realized service had not been perfected, she was on notice to exercise the greatest possible diligence to ensure timely service); McManus v. Sauerhoefer, 197 Ga. App. 114, 115 (397 SE2d 715) (1990) (although appellant learned he had the correct address but the wrong county, he failed to perfect service for another two months and therefore did not show diligent service); Walker v. Hoover, 191 Ga. App. 859 (383 SE2d 208) (1989) (appellant was required to determine correct county of residence before filing suit, and service on defendant three months after expiration of statute of limitation did not show reasonable diligence); Jones v. Brown, 174 Ga. App. 632 (331 SE2d 24) (1985) (pro se plaintiff perfecting service after five months failed to exercise reasonable diligence).

Decided April 13, 1998.

James P. Brown, Jr., for appellant.

Beck, Owen & Murray, William M. Dallas III, for appellee.

Applying the above-stated case law to the facts before us, the record clearly shows the trial court did not abuse its discretion in finding that Waits failed to exercise reasonable diligence in serving Gil. Not only did Waits fail to ascertain Gil’s correct county of residence prior to filing her Complaint, there are several unexplained delays occurring between the filing of the Complaint on August 2, 1995, and the perfection of service seven months later which cannot be attributed solely to Waits’ pro se status. Accordingly, the trial court correctly granted Gil’s motion for summary judgment.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Pope, Presiding Judge.

text:
    A98A0625.
    WALLACE v. SCAFFEE et al.
    (501 SE2d 561)
   Pope, Presiding Judge.

In this boundary line dispute, both the plaintiff, Jimmy Wallace, and the defendants, James Scaffee, Ronald Kerbow, and Miriam Kerbow, moved for summary judgment. Relying on separate surveys and expert opinions, each party advocated a different boundary line and claimed the undisputed facts showed as a matter of law that its proposed boundary line was the correct one. The trial court denied both motions for summary judgment. In that same order, based on its belief that when both parties move for summary judgment “the Court becomes the trier of fact,” the trial court rejected both proposed boundary lines and decreed a boundary of its own. Wallace appeals, claiming that once the trial court found issues of fact existed, it had no power to decide the factual issue of the boundary line’s placement when the parties had requested a jury trial. We agree and reverse.

Decided April 13, 1998.

Serio & Swilley, Salvatore J. Serio, for appellant.

Harger W. Hoyt, for appellees.

The fact that both parties have moved for summary judgment does not empower the trial court to determine issues of material fact that it finds exist. “On summary judgment, a trial court is not authorized to resolve disputed issues of material fact. A trial court is authorized only to determine whether disputed issues of material fact remain.” Ga. Canoeing Assn. v. Henry, 263 Ga. 77, 78 (428 SE2d 336) (1993). See Titan Indem. Co. v. Hall County, 202 Ga. App. 38 (413 SE2d 213) (1991) (finding questions of fact precluded summary judgment for either party, even though both parties had moved for summary judgment). In their brief, Scaffee and the Kerbows agree that the trial court overstepped its bounds to the extent it determined an issue of fact. While they go on to argue that no such issue of fact existed and claim they were entitled to summary judgment, we have no jurisdiction to address that issue because they did not file a cross-appeal of the trial court’s denial of their motion for summary judgment. See Decatur Fed. S & L Assn. v. Litsky, 207 Ga. App. 752, 755 (2) (429 SE2d 300) (1993).

Judgment reversed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke.

text:
    A98A0754.
    RUCKER v. TROLL BOOK FAIRS, L.L.C.
    (501 SE2d 301)
   Judge Harold R. Banke.

Lisa Rucker sued Troll Book Fairs, L.L.C. (“Troll”) and Suzie DeMarchis for injuries allegedly sustained on Troll’s premises and inflicted by DeMarchis, a Troll employee. Rucker appeals the summary judgment awarded to Troll.

This case arose on the day that Rucker’s supervisor at Troll, David Carpió, terminated her for excessive absenteeism. Because Rucker wanted to “save face,” she asked Carpió to allow her to return after closing time to retrieve her personal effects. When Rucker returned after business hours, she became embroiled in a verbal confrontation with DeMarchis in the parking lot outside Troll’s office. DeMarchis angrily accused Rucker of starting rumors about an alleged sexual affair. Carpió and his administrative assistant, Angela Rivers, witnessed this exchange. According to Carpió, both women had an opportunity to vent and he felt that things “had been settled.” At Carpio’s request, Rivers agreed to remain and to escort Rucker inside to supervise her departure. After Carpió specifically instructed DeMarchis to go home, DeMarchis drove away. Carpió testified that at the time he left, he “felt very comfortable that things were okay.” However, after Carpió drove off, unbeknownst to him, and in direct defiance of his instruction, DeMarchis returned. When Rivers told DeMarchis to leave, she refused to do so. Rivers believed that DeMarchis “wanted the last word.” After DeMarchis followed Rucker and Rivers inside the building, a second confrontation occurred during which DeMarchis either knocked a potted plant out of Rucker’s hands or pushed it into her. Rucker, then five months pregnant, instituted the underlying action against Troll and DeMarchis. Held:

1. Rucker contends that a jury must resolve whether DeMarchis was acting within the scope of her employment when she assaulted and battered her. We disagree. The test of a master’s liability for his servant’s tort is whether the act was done within the scope of the actual transaction of the master’s business for accomplishing ends of his employment. Rogers v. Fred R. Hiller Co., 214 Ga. App. 448 (1) (448 SE2d 46) (1994). “If a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from a doing of the act, the servant may be liable, but the master is not liable. [Cit.] . . . Where the tort of the employee is wholly personal to himself, it is not within the scope of his employment, and the master is not liable.” (Citations and punctuation omitted.) Effort Enterprises v. Crosta, 194 Ga. App. 666, 668 (391 SE2d 477) (1990); see Smith v. Myrick, 205 Ga. App. 339, 340 (422 SE2d 236) (1992).

Here, the record indicates that the confrontation between Rucker and DeMarchis was entirely of a personal nature. DeMarchis had clocked out for the day and her immediate supervisor iully believed that she had exited the premises. DeMarchis’ presence in the building after hours was in direct contravention of Troll’s explicit instructions. Rucker offered no evidence that DeMarchis’ actions were taken in the prosecution of company business or on Troll’s behalf. Jones v. Reserve Ins. Co., 149 Ga. App. 176, 178 (2) (253 SE2d 849) (1979). Instead, the alleged assault and battery incident arose from a personal quarrel and latent personal animosity. Doe v. Village of St. Joseph, 202 Ga. App. 614, 616 (1) (415 SE2d 56) (1992) (master is not liable for a purely personal, tortious act disconnected from authorized business). See Wittig v. Spa Lady &c., 182 Ga. App. 689, 690 (356 SE2d 665) (1987).

Decided April 13, 1998.

Gray & Hedrick, William E. Gray II, Julia J. Yofee, Natalie N. Hardwick, for appellant.

Long, Weinberg, Ansley & Wheeler, James B. Manley, Jr., Joseph W. Watkins, Swift, Currie, McGhee & Hiers, Joel G. Pieper, James D. Nichols, Jr., for appellee.

Finally, the question of whether a servant was acting within the scope of employment can be properly adjudicated on summary judgment where, as here, the evidence and all reasonable inferences from it show that the “servant was not engaged in furtherance of his master’s business but was on a private enterprise of his own.” Jones, 149 Ga. App. at 178 (3). See Rogers, 214 Ga. App. at 449 (1).

2. We cannot accept Rucker’s claims that Troll knowingly, wantonly, and recklessly exposed her to DeMarchis’ attack which Troll had reason to anticipate. The undisputed evidence indicates that DeMarchis had never threatened or assaulted anyone at Troll. Carpió testified that before he left, “it [had] fizzled out.” Carpió claimed that he had absolutely no reason to have anticipated that DeMarchis would disobey his order and return to instigate trouble, and no evidence shows otherwise.

3. We must reject Rucker’s claim that a fact question exists as to her status as a licensee or invitee. A licensee is “a person who is neither a customer, a servant, nor a trespasser . . . [who] [is] permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.” OCGA § 51-3-2. At the time of the incident, Rucker was not a customer, an employee, or a trespasser. By her own admission, Rucker was returning to Troll’s premises at her own convenience to accommodate her interest in minimizing her embarrassment at her discharge.

Judgment affirmed.

McMurray, R J., and Blackburn, J, concur.


author: Eldridge, Judge.

text:
    A98A0095.
    WILSON v. ORTIZ et al.
    (501 SE2d 247)
   Eldridge, Judge.

This appeal originates from a suit concerning a collision between a car driven by the plaintiff, Darin S. Wilson, and a truck owned by defendant Evergreen Environments, Inc. (“Evergreen”) and driven by Evergreen’s employee, defendant Benjamin Ortiz. Plaintiff brought suit against Ortiz alleging he was negligent in causing the collision and brought suit against Evergreen on the theory of vicarious liability. In the complaint, plaintiff asserts claims for both personal injury and property damage.

The defendants filed a combined motion for summary judgment on behalf of Evergreen and motion to dismiss on behalf of Ortiz. Thereafter, the plaintiff amended his complaint to set forth an additional theory of recovery against Evergreen for its own independent acts of negligence, i.e., putting an unsafe vehicle on the road and negligent entrustment of a vehicle. The trial court dismissed Ortiz with prejudice for failure of the plaintiff to perfect proper service until more than five months after the expiration of the statute of limitation and granted summary judgment in favor of Evergreen on the merits of plaintiff’s claims and dismissed Evergreen with prejudice. It is from this order that the plaintiff appeals.

1. The plaintiff alleges that the trial court erred in finding that the plaintiff failed to exercise due diligence in perfecting service on Ortiz after the running of the statute of limitation and in dismissing Ortiz for lack of service.

(a) The statute of limitation for a personal injury action is two years. OCGA § 9-3-33. The subject collision occurred on January 17, 1994. Plaintiff filed suit on January 12, 1996, five days before the applicable statute of limitation ran. Service was not perfected on Ortiz until June 22, 1996.

“Where service is made, as here, after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute, but only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to effectuate proper service as quickly as possible. The plaintiff also has the burden of showing lack of fault. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, [the] plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, [the] plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. Further, . . . [the] plaintiffs have the responsibility to investigate and learn where the defendant may be located and served.” (Citations and punctuation omitted.) Patterson v. Johnson, 226 Ga. App. 396, 397-398 (486 SE2d 660) (1997). “The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Citations and punctuation omitted.) Sykes v. Springer, 220 Ga. App. 388, 390 (469 SE2d 472) (1996).

In the case before us, when plaintiff filed suit on January 12, 1996, he requested that Ortiz be served at the address of 2550 Hargrove Road, Apartment 202P, Smyrna, Georgia, 30080. On January 18,1996, one day after the statute of limitation ran on plaintiff’s personal injury claim, the sheriff’s department returned service “non-est,” indicating lack of service. The plaintiff then attempted to find an address for Ortiz through the phone book. Finally, on February 6, 1996, the plaintiff retained a private process server and detective to locate Ortiz. During the course of the private process server’s investigation, he discovered three subjects living in the southeast United States, one of whom was in the Atlanta area, with the name of Ben or Benjamin Ortiz. The only investigation plaintiff made of these three individuals was to have the private process server make a telephone call. The private process server averred that he telephoned each of these three subjects and asked if this was the residence of the Benjamin Ortiz that now worked or had previously worked for a company called Evergreen Environmental or had previously resided at 2550 Hargrove Road in Smyrna; at all three listings the private process server received a negative response. On February 17, 1996, without further inquiry or investigation, the private process server informed the plaintiff that he was unable to find Ortiz.

There was no showing by the plaintiff that he made any additional attempts to locate Ortiz other than serving interrogatories on Evergreen requesting Ortiz’s address. In response to plaintiff’s interrogatories, Evergreen initially stated it would provide plaintiff with Ortiz’s address upon receipt. On June 16, 1996, counsel for Evergreen confirmed by telephone that Ortiz did, in fact, reside on Fair Oaks Avenue in Marietta, which was the Atlanta area address that the plaintiff’s private process server had previously found approximately four months earlier. Personal service was finally perfected on Ortiz on June 22, 1996, more than five months after the statute of limitation had run on plaintiff’s personal injury claims.

Under the evidence presented here, the trial court did not abuse its discretion as a matter of law in deciding that the plaintiff did not exercise reasonable diligence in attempting to perfect timely service on Ortiz as to plaintiff’s personal injury claims and in dismissing that portion of plaintiff’s complaint without prejudice for that reason. However, the trial court did err in dismissing the plaintiff’s personal injury claims against Ortiz with prejudice, because there had been no adjudication on the merits. OCGA §§ 9-11-12 (b); 9-11-41 (b) (2); Rainwater v. Vazquez, 133 Ga. App. 173 (210 SE2d 380) (1974); see O’Kelley v. Alexander, 225 Ga. 32 (165 SE2d 648) (1969); Teal v. Reeves, 144 Ga. App. 666 (242 SE2d 328) (1978). Had Ortiz brought a motion under OCGA § 9-11-12 (b) (6) on the grounds that the statute of limitation had run, such adjudication would have been on the merits. See Bennett v. Nelson, 202 Ga. App. 346 (414 SE2d 291) (1991); Starr v. Wimbush, 201 Ga. App. 280, 281 (1) (410 SE2d 776) (1991).

The defendant’s motion to dismiss Ortiz for lack of proper and timely service was not a motion for summary judgment, but was a motion pursuant to OCGA § 9-11-12 (b) (4) and (5), i.e., a motion to dismiss for insufficiency of process and insufficiency of service of process. The defense of insufficiency of service of process, along with “[t]he [other] defenses enumerated in § 12 (b) of The Civil Practice Act[,] OCGA § 9-11-12 (b)[,] except (6), failure to state a claim upon which relief can be granted, are matters in abatement which are not within the scope of the summary judgment procedure, as a motion for summary judgment applies to the merits of the claim or to matters in bar but not to matters in abatement.” (Citation and punctuation omitted.) Murray v. Sloan Paper Co., 212 Ga. App. 648, 649 (442 SE2d 795) (1994). A dismissal for insufficiency of service of process is a finding by the trial court that service was not perfected in a reasonable and diligent manner within the prescribed statute of limitation and is not a ruling that the plaintiff’s action is, in fact, barred by the running of the statute of limitation. On such a motion to dismiss, the trial court cannot determine on the merits that the plaintiff’s action is barred by the running of the statute of limitation, because such issue is a factual issue and must eliminate the factual issue of tolling. By dismissing the case for lack of service, the action is abated, and the trial court no longer has jurisdiction to hear evidence that may bear on the tolling of the statute of limitation. The trial court could only dismiss the plaintiff’s personal injury claims against Ortiz on the merits on a motion for summary judgment where the evidence is undisputed that there were no material issues of fact which would toll the running of the statute of limitation, thereby allowing the statute of limitation to attach. Therefore, the trial court’s dismissal of Wilson’s personal injury claims should have been without prejudice. Any attempt by the plaintiff to refile the personal injury claims would show on the face of the complaint that the statute of limitation had run.

(b) Service was perfected on Ortiz within the four-year statute of limitation for property damage. See OCGA § 9-3-31. Therefore, the trial court erred in dismissing the plaintiff’s claim for property damage.

2. In his second enumeration of error, the plaintiff alleges that the trial court erred in granting summary judgment to Evergreen on his theory of negligent entrustment and placing an unsafe vehicle on the road.

“Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness.” (Citations and punctuation omitted; emphasis in original.) Worthen v. Whitehead, 196 Ga. App. 678 (396 SE2d 595) (1990).

There is no evidence of record that Ortiz was a reckless driver, nor is there any evidence that his driving record was poor. More importantly, there is no evidence that Evergreen had actual knowledge that Ortiz had reckless tendencies, had a poor driving record, or was an incompetent or reckless driver. In fact, Ortiz testified that he had not told anyone at Evergreen that he had never driven on ice or snow before. Ortiz’s testimony that he had informed his supervisor that he was “worried” about driving in the weather and was instructed by his supervisor to be careful does not give rise to actual knowledge by Evergreen that Ortiz was an incompetent driver.

Contrary to the plaintiff’s assertions, the fact that Evergreen did not inquire into Ortiz’s experience in driving on icy roads is not material to Evergreen’s liability. “Georgia law does not impose the duty upon the owner of an automobile to make investigation of the competency of one who drives his car and discover his reputation as a driver in order to avoid being negligent if it should subsequently be determined that the driver indeed had a reputation for recklessness and incompetency in driving.” (Citations and punctuation omitted.) Worthen, supra at 678.

Further, for an owner of a vehicle to be held liable for injuries that occur due to an unsafe or defective condition of his vehicle, the plaintiff must show not only that the vehicle was being operated with the owner’s consent, but that the owner knew of its defective or unsafe condition. Koutras v. Lazarus, 122 Ga. App. 870, 873 (179 SE2d 106) (1970).

Plaintiff has failed to show any evidence that Evergreen had any knowledge of an unsafe or defective condition of the truck driven by Ortiz. In fact, there was no evidence that Evergreen’s truck was unsafe or defective. The only testimony as to the truck’s condition was given by Ortiz. Ortiz testified that, in general, the truck with the trailer attached was more difficult to handle and stop than when the truck was driven without the trailer. This is normal for any vehicle and was not a defective or unsafe condition of Evergreen’s truck. Further, Ortiz testified that he never discussed with anyone at Evergreen whether, due to the weather conditions, he should leave the trailer behind at the apartment complex where the crew was working.

Therefore, under the evidence, there were no material issues of fact for jury resolution, and the trial court was correct in granting summary judgment in favor of Evergreen on plaintiff’s claims of negligent entrustment and placing an unsafe vehicle on the road.

3. In his final enumeration of error, plaintiff alleges that the trial court erred in granting summary judgment to Evergreen on plaintiff’s theory of vicarious liability, because Evergreen admitted in its answer that Ortiz was acting within the course and scope of his employment at the time of the collision. We agree.

Evergreen’s reliance on Hosp. Auth. of Calhoun County v. Walker, 224 Ga. App. 163 (480 SE2d 849) (1996) is misplaced. Hosp. Auth. of Calhoun County v. Walker, supra, and the cases cited thereunder stand for the proposition that “[wjhere the liability of the master to an injured third person is purely derivative and dependent entirely upon the doctrine of respondeat superior, a judgment on the merits in favor of the servant and against the third person is res judicata in favor of the master in a suit by such third person.” (Citations and punctuation omitted; emphasis supplied.) Id. at 165. As held in Division 1, a dismissal for insufficiency of process and insufficiency of service of process is not a dismissal on the merits and would not act as a bar to bringing an action against the employer. Therefore, Hosp. Auth. of Calhoun County v. Walker, supra, and the cases cited thereunder are not controlling. The merits of the alleged negligence of Ortiz have not been reached and adjudicated.

Evergreen, in its answer, admitted the following allegations made by the plaintiff: “16. At all times germane to this complaint, defendant Oritz [sic] was an employee of defendant Evergreen. 17. At all times germane to this complaint, defendant Oritz [sic] was acting within the scope of the employment or business of defendant Evergreen, such that the relationship of master and servant existed between defendant Evergreen and defendant Oritz [sic]. 18. At all times germane to this complaint, defendant Oritz [sic] was acting as the agent of and in furtherance of the business of defendant Evergreen such that the relationship of master and servant existed between defendant Evergreen and defendant Oritz [sic].” When the admissions are read in conjunction with Count 1, which was specifically incorporated by reference and which specifically describes the collision between the plaintiff and Ortiz, Evergreen’s admission of such facts is sufficient to be an admission in solemn judicio that Ortiz was in the scope of his employment at the time of the collision between the plaintiff and Ortiz.

Admissions in solemn judicio constitute a conclusive presumption of law against the pleader as to the truth of the admission. OCGA §§ 24-3-30; 24-4-24; C & S Realty Investors v. L. G. Balfour Co., 152 Ga. App. 852 (264 SE2d 304) (1980). A party to a suit will not be allowed to disprove an admission made in his pleading without first being granted leave by the trial court to withdraw such pleading from the record. Friddell v. Rawlins, 160 Ga. App. 44 (285 SE2d 779) (1981).

This Court held in Walker v. Jack Eckerd Corp., 209 Ga. App. 517 (434 SE2d 63) (1993), that when a party has made an admission in judicio in a pleading and the trial court considers conflicting evidence on the merits when ruling on a motion for summary judgment or at trial allows the factfinder to consider such conflicting evidence, the trial court has “either sua sponte or by overruling an opposing motion, tacitly permitted the pleading party to withdraw the admission contained in the pleadings. Conversely, when the trial court does not allow the conflicting evidence to be admitted or, where applicable, elects not to consider the issue on the merits, the admission of fact made in the pleadings remains in full force and effect as an admission in judicio and is conclusive of the fact admitted. . . . Basically, the rule vests the trial court with discretion to determine whether an admission of fact made in pleadings should be withdrawn, thereby allowing the pleadings to be amended by conflicting evidence admitted and considered on the merits.” (Citations omitted; emphasis in original.) Id. at 520.

In this case, in ruling on Evergreen’s motion for summary judgment, the trial court considered the affidavits of both Ortiz and George Gober, the chairman and part owner of Evergreen at the time of the collision, in which each averred that Ortiz was not in the scope of his employment at the time of the collision between the plaintiff and Ortiz. By considering such affidavits, the trial court sua sponte allowed Evergreen to withdraw the admission in judicio made in its answer that Ortiz was in the scope of his employment at the time of the subject collision. Walker v. Jack Eckerd Corp., supra, does not address the evidentiary effect of a withdrawn admission in judicio, which becomes an admission against interest after being withdrawn; such admission against interest creates a material conflict with the affidavits of Ortiz and Gober, as a matter of law.

“Admissions contained in a stricken plea may be introduced in evidence by the opposite party. Such admissions when thus made are to be taken as true, because they are asserted by the party himself; and while the party may withdraw them formally from the pleadings, he can not by a mere withdrawal avoid the effect of the admissions, since they may still be used as evidence against him. [Cit.]” Stallings v. Britt, 204 Ga. 250, hn. 2 (49 SE2d 517) (1948). Thus, on summary judgment, such admission, which the trial court had allowed to be withdrawn, would no longer be a solemn admission in judicio, but would create a conflict of fact, since “a jury may accord them credence and effect upon the trial of a case. [Cits.]” Walker v. Sutton, 222 Ga. App. 638, 641 (476 SE2d 34) (1996). The weight to be given the withdrawn admission by Evergreen was for a jury to decide. Duffee v. Rader, 178 Ga. App. 517 (344 SE2d 258) (1986); Joyner v. William J. Butler, Inc., 143 Ga. App. 219 (237 SE2d 685) (1977).

Decided March 31, 1998

Reconsideration denied April 14, 1998.

Eric C. Silver, for appellant.

Jenkins & Nelson, Frank E. Jenkins III, Peter R. Olson, for appellees.

Therefore, since a material issue of fact existed, it was error for the trial court to grant summary judgment to Evergreen on the theory of respondeat superior.

Judgment affirmed in part and reversed in part.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A0263.
    WILBANKS et al. v. MAI.
    (501 SE2d 513)
   Judge Harold R. Banke.

Tim Wilbanks and Robin Wilbanks (the “Wilbankses”) entered into an asset purchase agreement to buy Tham Thi Mai’s dry cleaning business. This dry cleaning business operated from two locations, both of which Mai leased from third parties. The purchase agreement provided that prior to the closing date, “Seller [Mai] shall obtain the Consent of the Landlord to the Sublease.” At the time of the closing, the Wilbankses and Mai executed written subleases for each location.

Shortly after purchasing the business, the Wilbankses began to demand that Mai provide them with written consents to sublease from the respective landlords. They also unsuccessfully attempted to obtain written subleases directly from agents of the property owners. According to Tim Wilbanks, after one landlord locked them out of their business at one location, they refused to pay any more on the notes or the rent.

It is undisputed that both of Mai’s leases required the landlord’s prior written permission to sublet the premises to another party. The record evidence shows that the commercial property managers for both sites refused to lease directly to the Wilbankses but had no objection to subleasing the premises to the Wilbankses provided that they pay the rent on time. One agent testified that over the entire five-month period at issue, the Wilbankses either paid the monthly rent late or not at all.

Less than six months after executing the purchase agreement, the Wilbankses, by letter, attempted to rescind the contract and tender the business back to Mai and demanded the refund of all their money. Notwithstanding their irregular payments on the rent and failure to make any payments to Mai, the Wilbankses sued Mai for fraud and rescission based on Mai’s alleged nonperformance in failing to obtain written subleasing agreements from her landlords.

Decided April 1, 1998

Reconsideration denied April 14, 1998.

In support of her motion for summary judgment, Mai testified that prior to closing both parties knew the main leases were to remain in her name because the Wilbankses could not qualify for a separate sublease with each landlord. She offered the affidavits from agents of the two property management companies in which the agents acknowledged that they verbally consented to the Wilbankses’ occupation of the premises and knowingly and willingly accepted rent from the Wilbankses.

The trial court determined that Mai satisfied the terms of the purchase agreement by obtaining the verbal consent of her landlords since the sales agreement did not specify that the consent had to be in writing. The Wilbankses appeal. Held,-.

In their sole enumeration of error, the Wilbankses contend that a material issue of fact remains unresolved as to whether Mai was contractually obligated to supply them with written subleases. We disagree. Absent ambiguity, the construction of a written contract under OCGA § 13-2-1 is a question of law for a trial court. Castellana v. Conyers Toyota, 200 Ga. App. 161, 165 (2) (407 SE2d 64) (1991). Ambiguity means “‘duplicity, indistinctness, an uncertainty of meaning or expression.’ ” Tarbutton v. Duggan, 45 Ga. App. 31, hn. 5 (163 SE 298) (1932).

In this case, there is no ambiguity. The written terms plainly obligated Mai to obtain “the consent” of her landlords but did not specify that she obtain the landlords’ written consent. Because the words in this contract are plain and obvious, they must be given their literal meaning and no new terms can be inserted. See U S. Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 79 (1) (355 SE2d 428) (1987). Notwithstanding the Wilbankses’ assertion that they were entitled to written subleases, nothing in the contract required that Mai obtain such written consent from her landlords. See Foshee v. Harris, 170 Ga. App. 394, 395 (317 SE2d 548) (1984) (construction and interpretation of a written, unambiguous contract is peculiarly well suited for summary adjudication).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Rodney S. Zell, for appellants.

Ferguson & Saunders, Robert A. Nephew, for appellee.


text:
    A98A0514.
    In the Interest of C. W. D. et al., children.
    (501 SE2d 232)
   Eldridge, Judge.

This appeal was taken by the mother of three minor children, C. W. D., T. A. D., and C. D. H., after the Juvenile Court of Butts County entered an order terminating her parental rights, as well as the parental rights of the fathers, on September 25, 1997.

On November 1, 1994, the mother was arrested by the Butts County Sheriff’s Department; the Georgia Department of Human Resources, acting through the Butts County Department of Family & Children Services (“DFCS”), then became involved when called by the Sheriff’s Department about the children. When taken into custody, the children appeared physically dirty, had dirty clothes, and smelled of urine and body odor. The mother gave the DFCS caseworker several false names, as did the children. Because the mother prevented the correct identification of herself and her children and refused to give the names and addresses of relatives willing to take the children, a safekeeping order for the children was obtained on that date from the juvenile court. The mother finally provided the names of several relatives, but they were unwilling to take the children. The mother also reluctantly provided the identities of the putative fathers; none of the fathers made any effort to contact, support, or reunite with the children. The children have remained in the custody of DFCS since November 1, 1994.

While the mother was held in the Putnam County Jail, DFCS took the children to visit with their mother, but the children shrieked, cried, and acted fearful of their mother.

On April 5, 1995, the mother and DFCS developed a plan of unification with the following goals: (1) that the children would have a safe and stable home; (2) that the children’s educational, psychological, medical, and dental needs would be met; (3) that the mother would cooperate with DFCS; and (4) that the mother would have positive communications with her children. The juvenile court adopted the case plan and ordered compliance on April 14, 1995.

When the plan was developed on April 5, 1995, the mother was incarcerated; she was not released from prison until the summer of 1995, when she moved to Coweta County. On October 3, 1995, a second reunification plan was developed that was virtually identical to the first plan. On October 11, 1995, the Juvenile Court of Butts County adopted the plan by order.

On November 12, 1995, the mother’s home was investigated, but was not approved because the dwelling had too many hazards that put the children at risk. In November 1995, the mother agreed to pay child support but failed to do so in violation of a court order.

Between August 1995 and April 11, 1996, the mother visited the children approximately once a month. Several visits were scheduled, but the mother failed to appear. The visits with the children were strained, and the children expressed the wish not to visit with the mother.

On April 2, 1996, a third reunification plan was completed that was virtually identical to the prior plans. It was made the order of the court on April 10, 1996. The mother was arrested again for shoplifting and incarcerated on April 11, 1996. On October 9, 1996, the juvenile court issued an order that encompassed the prior provisions, but ordered that DFCS proceed toward termination of all parental rights. On October 21, 1996, the mother was tried, convicted, and sentenced to ten years imprisonment, four to serve with the balance probated. Subsequent to the mother’s arrest on April 11, 1996, she remained in custody and made no further visits with the children.

Since April 1995, the mother failed to meet the goals of the plans and, as a result of her repeated incarcerations, was unable to provide a safe and secure home. She failed to pay child support. She failed to cooperate with DFCS in that she did not provide: (1) verification of her income; (2) the children’s medical histories; (3) contact with DFCS after her incarceration in April 1996; and (4) the names of the putative fathers in a timely manner. The mother’s communication with the children was either late, not made at all, or strained when made in person. Written communication was non-existent from April 11, 1996 until October 1996, and she failed to meet the goal of monthly communication.

The mother’s care or lack thereof had a significant impact on the children. Dr. Barbara Toner, who holds a Ph.D. in clinical psychology, was qualified as an expert and testified as to the children’s mental and emotional condition and the precipitating cause of their conditions. C. W. D. was diagnosed as having post traumatic stress syndrome, Tourette’s syndrome, and attention deficit disorder. T. A. D. was diagnosed as suffering from post traumatic stress syndrome, as well as a possible obsessive-compulsive disorder. C. D. H. was diagnosed as experiencing post traumatic stress syndrome. Dr. Toner stated her expert opinion that the children’s disorders were caused by physical, psychological, and emotional abuse by the mother. The children, under counseling and examination, told her of their fear of their mother because the mother beat them with extension cords, shoes, switches, and belts and had stepped on C. W. D.’s neck. The children have extremely negative memories of their mother and sought to forget the painful past with her. It was Dr. Toner’s opinion that the children would be unable to reestablish a relationship with their mother if they were reunited or visited by her.

C. W. D. and T. A. D. testified and were cross-examined via closed circuit television after the juvenile court judge determined that to do so in the presence of their mother would be detrimental to their mental health and emotional well-being. This decision was based upon the opinion of Dr. Toner. C. W. D. testified in detail as to the same abuse to which Dr. Toner had testified. C. W. D. stated that he did not want to return to his mother and would not object to adoption. T. A. D. also testified in detail about how he had been physically abused, as had been described by Dr. Toner in earlier testimony, and that, as a consequence, he did not want to return to his mother. He had no objection to adoption and did not want to have future contact With his mother.

Following this hearing, the juvenile court terminated the parental rights of the children’s mother and fathers.

1. The first enumeration of error is that the trial court erred in finding clear and convincing evidence to support termination of the mother’s parental rights. We do not agree.

There was clear and convincing evidence of deprivation of the children, and that the deprivation would continue in the future. The juvenile court went through the two-step process for termination correctly. OCGA § 15-11-81 (a); In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996); In the Interest of A. T., 187 Ga. App. 299, 301 (370 SE2d 48) (1988).

The record, by clear and convincing evidence, shows that the children were deprived within the meaning of OCGA § 15-11-2; that the mother’s lack of parental care and control of the children was the cause of the deprivation status; that the deprivation was likely to continue in the future and would not be remedied; and that such deprivation caused and was likely to further cause physical, mental, emotional, and moral harm to the children. OCGA § 15-11-81 (b) (4) (A) (i)-(iv); In the Interest of D. T., 221 Ga. App. 328, 329 (471 SE2d 281) (1996); In the Interest of G. K. J., 187 Ga. App. 443 (370 SE2d 490) (1988). Such factors show the existence of parental misconduct or the inability to remedy the causes of deprivation and support the juvenile court’s finding that the termination of parental rights is in the best interests of the children. OCGA § 15-11-81 (a).

Since November 1, 1994, the mother had been unable to provide a safe and stable home for the children, either because she has been incarcerated or because the home had too many physical hazards for the safety of the children. This demonstrates that the children were deprived and were likely to be deprived in the future. See OCGA § 15-11-81 (b) (4) (A) (i), (iii); see also OCGA § 15-11-2.

The mother failed to contact or visit with the children from April 11, 1996, until September 25, 1997, the termination date, because she was incarcerated. Also, she had not maintained telephone or written communication with either the children or DFCS. Further, the children did not wish to have contact with their mother, because they were afraid of her due to her physical, psychological, and emotional abuse of them. Dr. Toner gave expert testimony that the emotional and psychological conditions from which the children suffered were caused by their mother’s treatment of them and that a healthy relationship between them could not be restored. Thus, the mother’s conduct satisfied the second criterion, because she caused the children’s deprivation. See OCGA § 15-11-81 (b) (4) (A) (ii); see also OCGA § 15-11-81 (b) (4) (B) (in), (iv), (v).

Since the mother had been without custody of the children from November 1, 1995 until September 25, 1997, within OCGA § 15-11-81 (b) (4) (A) (ii), then OCGA § 15-11-81 (b) (4) (C) empowered the juvenile court to determine whether the parent, without justifiable cause, failed for a period of one year or longer to significantly: (1) communicate with the children; (2) care for and support the children as required by judicial decree; and (3) comply with a court-ordered plan of reunification. See OCGA § 15-11-81 (b) (4) (C) (i)-(iii).

From November 1995 until March 1996, the mother visited with the children once a month only, but only because DFCS either took the children to see her where she was incarcerated or made the children available for visitation. Once the mother was incarcerated in April 1996, she failed to contact the children or even request DFCS to bring the children to see her where she was incarcerated. Although the mother was scheduled for two visits per month from April 11, 1996, until the termination on September 25, 1997, she made no visits or requested visits in prison with her children. At the time of the termination hearing on June 11, 1997, more than one year had passed without a visit or a request for a visit. Further, the mother had been asked to write the children at least once a month under the reunification plan while she was incarcerated, but she wrote only occasionally.

The mother agreed to pay and was ordered to pay child support, but she failed to do so between November 1, 1994 and June 11, 1997.

The mother failed to comply with any of the court-ordered reunification plans. OCGA § 15-11-81 (b) (4) (C) (iii). She never provided a safe and stable home; she never provided for the children’s educational, psychological, medical, and dental needs; and she failed to support the children. The mother failed to cooperate with DFCS by providing verification of income and the children’s educational and medical histories or to maintain contact with DFCS after her incarceration in April 1996. The mother only reluctantly furnished information about relatives and the fathers.

Parental unfitness, caused either intentionally or unintentionally, which results in abuse or neglect or which is tantamount to physical or mental incapacity to care for the children will justify termination of parental rights. In the Interest of T. R. L., 162 Ga. App. 659, 660 (292 SE2d 518) (1982).

“The past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue.” (Citations and punctuation omitted.) In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991); In the Interest of J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 246) (1987); see In the Interest of A. M. V., supra at 531; In the Interest of B. P., 222 Ga. App. 621, 622 (475 SE2d 673) (1996); In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995). In this case, the children did not want to live with or even visit with their mother because of her past physical, psychological, and emotional treatment of them. Thus, the juvenile court could find that this conduct was likely to continue in the future. OCGA § 15-11-81 (b) (4) (A) (iii); In the Interest of P. N. L., 228 Ga. App. 187 (491 SE2d 434) (1997); In the Interest of J. M. C., supra at 174; see also OCGA § 15-11-81 (b) (4) (B) (v). The court must base its decision on more than positive promises of good behavior which the past has proven will not be carried out. See In the Interest of R. N., 224 Ga. App. 202, 205 (480 SE2d 243) (1997); In the Interest of D. I. W., 215 Ga. App. 644, 646 (451 SE2d 804) (1994). Rather than keep the children in foster care until they are 18, the court properly determined that termination of the parental rights and adoption were in the best interests of the children. OCGA § 15-11-81 (a); In re G. M. N. & D. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987); In the Interest of T. R. G., 162 Ga. App. 177 (290 SE2d 523) (1982). Therefore, this Court finds that the juvenile court had sufficient clear and convincing evidence to justify termination of the mother’s parental rights.

2. The second enumeration of error is that the juvenile court erred in admitting hearsay evidence in the form of DFCS’ Exhibits 1 through 5, i.e., the plans for reunification. We do not agree.

Each plan was made the order of the court. Therefore, as a copy of a record of judicial proceedings, the plans and orders were admissible as primary evidence. See OCGA § 24-5-31; Bell v. Cone, 208 Ga. 467 (67 SE2d 558) (1951); Traylor v. Epps, 11 Ga. App. 497 (75 SE 828) (1912). For practical reasons, the original pleadings and court records are not treated as the highest and best evidence and are not favored for admission in evidence, but certified copies are by statute deemed the highest and best evidence. Otherwise, court records would be used in other legal proceedings and would become part of the record in such cases, thereby destroying the integrity and completeness of the original court records. Thus, the original court records and certified copies have equal dignity, with the preference for certified copies. See Mason v. State, 197 Ga. App. 534 (398 SE2d 822) (1990); Moody v. Bd. of Commrs. of Appling County, 29 Ga. App. 21 (113 SE 103) (1922).

Further, the copies of court records do not come within the definition of hearsay because, if the foundation is laid as to identity, authenticity, relevancy, and materiality, then the copies of the court records are admissible as the highest and best evidence of what is contained therein. By definition, hearsay is evidence “which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). Such copies of court records did not come within the hearsay rule applicable to the interpretation of the content of non-public records because the records were admitted into evidence. See Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858 (360 SE2d 418) (1987); Rodgers v. Cumberland Volkswagen, 167 Ga. App. 826 (307 SE2d 721) (1983); Foster v. Nat. Ideal Co., 119 Ga. App. 773 (168 SE2d 872) (1969). “ £A written statement made by a public official or under his supervision is admissible as evidence tending to prove the truth of the matter stated if he is required to make the statement by statute or by the nature of his duty. This exception to the rule excluding hearsay is recognized because of the inconvenience to the public of having the official leave his office to testify in court in person, and because of the circumstantial probability of trustworthiness arising from his official duty.’ Green, Ga. Law of Evidence (2nd ed.), § 317.” United Waste, Ltd. v. Fulton County, 184 Ga. App. 694, 695 (1) (362 SE2d 476) (1987). If the copies of the court records had not been introduced as evidence and a DFCS worker other than the maker of the record sought to testify as to the content of the plans, then the testimony as to the content, but not the records themselves, would be subject to objection as hearsay. Lipscomb v. State, 194 Ga. App. 657 (391 SE2d 773) (1990). Further, to the extent that the records contained admissions against the interest of the mother, such portions of the records would not be hearsay. See OCGA § 24-3-31; United Waste, Ltd. v. Fulton County, supra at 696; Clark v. Toms, 181 Ga. App. 557 (353 SE2d 54) (1987); Mulherin v. Globe Oil Co., 173 Ga. App. 790, 791 (2) (328 SE2d 406) (1985).

Records made in the regular course of business and for which a proper foundation is provided are admissible outside the hearsay rule; such records include those made by public employees transacting their official duties. See OCGA § 24-3-14; Robertson v. State, 210 Ga. App. 834 (437 SE2d 816) (1993); Munda v. State, 172 Ga. App. 857 (324 SE2d 799) (1984); Johnson v. State, 168 Ga. App. 271 (308 SE2d 681) (1983).

3. The third enumeration is that the trial court erred in allowing a witness to testify as an expert without being qualified. We do not agree.

The basis of the mother’s objection to the qualification of the expert witness was that she was not licensed in the State of Georgia as a psychologist and that she was not tendered as an expert witness until near the end of her testimony and after cross-examination.

(a) Dr. Toner testified that she was a psychologist and educator by education, training, and experience. She had a B.A. and an M.A. in education, as well as an M.A. and Ph.D. in clinical psychology. She was licensed as a psychologist in Vermont, although not by the State of Georgia.

An expert witness is anyone who, through training, education, skill, or experience, has peculiar knowledge that the average juror would not possess as to “any question of science, skill, trade, or like questions”; the expert witness may render an expert opinion within the witness’ area of expertise after the qualifications have been proven to the trial court. See OCGA § 24-9-67; Martin v. Baldwin, 215 Ga. 293 (110 SE2d 344) (1959); Macon R. &c. Co. v. Mason, 123 Ga. 773 (51 SE 569) (1905); Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 (99 SE2d 370) (1957); Tifton Brick &c. Co. v. Meadow, 92 Ga. App. 328 (88 SE2d 569) (1955).

It is for the trial court to determine, as a matter of law after hearing evidence, whether a witness is competent by way of qualifications to render an opinion within their area of expertise. Redd v. State, 240 Ga. 753 (243 SE2d 16) (1978); Barrow v. State, 235 Ga. 635 (221 SE2d 416) (1975); Hicks v. State, 196 Ga. App. 311 (396 SE2d 60) (1990). The requirements for qualification as an expert witness are minimal; generally, nothing more is required to qualify an expert than evidence that the person has been educated in a particular trade, science, or profession. Watkins v. State, 259 Ga. 648 (386 SE2d 132) (1989); Brown v. State, 245 Ga. 588 (266 SE2d 198) (1980); Bowden v. State, 239 Ga. 821 (238 SE2d 905) (1977); Inta-Roto, Inc. v. Guest, 160 Ga. App. 75 (286 SE2d 61) (1981). Formal education or training in an area of expertise is not necessary, provided the witness possesses the qualifications of such area of expertise through skill and experience. Brown v. State, supra. It is the possession of special knowledge derived either from experience, study, or both in a field of expertise that makes one an “expert.” Id.; Bowden v. State, supra; Southern R. Co. v. Cabe, 109 Ga. App. 432 (136 SE2d 438) (1964). Thus, an expert witness can express an opinion on a matter which comes within the person’s qualifications. Martin v. Newton, 129 Ga. App. 735 (201 SE2d 31) (1973).

The possession of a license in Georgia does not go to qualification as an expert witness but may go to the weight and credibility that a jury gives to such expert’s opinion. In this case, Dr. Toner was qualified by education, training, and experience and was accepted as an expert by the trial court when tendered as an expert witness.

(b) The tender of an expert witness after being qualified through the presentation of evidence of expertise is a different issue than presenting the evidence of qualification. By tender of the witness, the party is seeking a legal determination by the trial court that the witness has the requisite qualifications to be permitted to render an expert opinion. The tender of a witness as an expert witness has three purposes: (1) it indicates the capacity in which the witness will testify, if accepted, allowing the rendering of an expert opinion; (2) it provides the opposite party an opportunity to voir dire the witness prior to the trial court’s determination whether or not the witness has the requisite qualifications to testify as an expert witness; and (3) it allows the trial court the opportunity to rule as a matter of law if the witness will be allowed to state an expert opinion. Since such determination is for the trial court alone and does not have to take place in the presence of the jury, then the trial court may make such determination at any time after tender. Tender may be made pretrial, either in a pre-trial order which names the witness as an expert or by oral tender. Tender may be made during trial after hearing evidence, either in the presence of the jury, at a bench conference, or outside the presence of the jury. Tender may be formal in oral announcement before the trial judge or before the jury. Tender may be implied after the foundation for qualification has been laid and counsel has asked if the examination of the witness may proceed and is instructed by the trial court to proceed. Moss v. State, 216 Ga. App. 711, 712 (2) (455 SE2d 411) (1995). If, after qualifying the witness as an expert but without formal tender, counsel proceeds to ask for expert opinion evidence, based upon either a hypothetical or facts within the personal knowledge of the witness, the trial court has tacitly or impliedly accepted the witness as an expert. Further, if the opposite party objects to the expert opinion and the trial court overrules the objection, then the court has impliedly accepted the witness as an expert. See Stewart v. State, 246 Ga. 70, 75 (4) (268 SE2d 906) (1980); Lindley v. State, 225 Ga. App. 338, 340 (484 SE2d 33) (1997); Bacon v. State, 225 Ga. App. 326, 327 (483 SE2d 894) (1997); Newberry v. D. R. Horton, Inc., 215 Ga. App. 858 (1) (452 SE2d 560) (1994). A witness who is neither qualified as an expert nor tendered as such is not competent to render an expert opinion. Stephens v. State, 219 Ga. App. 881, 883 (1) (467 SE2d 201) (1996); see also Davis v. State, 209 Ga. App. 572, 573 (434 SE2d 132) (1993).

The danger in failing to make some overt act of tender of the expert for the record, orally or through pre-trial order, or to have the trial court rule on the record, is that, on appellate review, the cold record makes it impossible to determine whether or not the witness gave the opinion as a layperson or an expert. If the trial court accepted the witness as a qualified expert, then such acceptance may not be apparent on the record, unless the trial court overruled an objection to the expert opinion. Stewart v. State, supra. This evidentiary problem is illustrated in Hudson v. Santangelo, 228 Ga. App. 768, 771 (1), 773 (2) (492 SE2d 673) (1997). While the evidence showed that the plaintiff’s witness was qualified through training and experience as an expert, he was neither tendered nor did he render an expert opinion. He merely stated that he would have done the construction differently. However, the defendant’s expert testified that the work met the standard of the industry. Plaintiff’s witness did not testify to establish the standard of care of the trade nor state that the acts or omissions of the defendant deviated from such standard; as such, the testimony did not contradict the defendant’s expert. Therefore, the evidence was insufficient to show a breach of duty. From the record, it could not be reasonably inferred that the trial court tacitly or impliedly accepted the plaintiff’s witness as an expert, because the witness rendered no expert opinion.

In this case, the expert witness was qualified at the inception of her testimony but not tendered orally as an expert until the end of her testimony; the trial court expressly ruled that she could properly render an expert opinion. The trial court did not err.

4. The next enumeration of error is that the trial court erred in admitting hearsay evidence. We do not agree.

The social worker testified that the children did not want to visit with their mother prior to their visit and then acted afraid and upset when they visited. This explains the children’s mental state regarding their mother, as well as their conduct in her presence. Such evidence was relevant and material as to the present and future inability of the children to reestablish a relationship with their mother and to ascertain their best interests. See OCGA § 24-3-2; Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982); Noles v. State, 172 Ga. App. 228 (322 SE2d 910) (1984).

The statements of the children to Dr. Toner about their mother’s conduct, i.e., that their mother forced them to use false identities, and its effect on them psychologically went to the children’s deprivation, as well as explained the children’s conduct when taken into custody. The history that a patient gives to a psychologist during examination or treatment is not hearsay and is admissible as an exception to the hearsay rule. See OCGA § 24-3-4; Southern R. Co. v. Lawson, 256 Ga. 798 (353 SE2d 491) (1987); Sinclair Oil Corp. v. Hendrix, 119 Ga. App. 770, 771-772 (2) (168 SE2d 862) (1969).

5. The mother’s last enumeration of error is that the trial court erred in denying her constitutional rights of confrontation. We do not agree.

While a parental termination proceeding is not a criminal proceeding implicating the Sixth Amendment right of confrontation of a witness testifying against the accused, such proceeding involves a fundamental liberty interest, so that “due process requires that we afford this liberty interest the same protection on appellate review that we afford those constitutionally protected interests in cases where a criminal conviction is had.” Blackburn v. Blackburn, 249 Ga. 689, 693 (292 SE2d 821) (1982). While not recognizing a right of confrontation under the Sixth Amendment in termination cases, this Court has found a due process right to confront the witnesses, which is different from the protection afforded in criminal trials. See In the Interest of M. S., 178 Ga. App. 380, 381 (343 SE2d 152) (1986); see also In the Interest of B. G., 225 Ga. App. 492 (484 SE2d 293) (1997).

“[Ijdentification of the specific dictates of due process generally requires consideration of three distinct factors: [fjirst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Cit.]” Mathews v. Eldridge, 424 U. S. 319, 335 (96 SC 893, 47 LE2d 18) (1976). Here, the mother’s due process rights were satisfied when balanced against the best interests of the children. A procedure was employed that reasonably accommodated everyone with minimal effect on the mother.

In both decisions of this Court, In the Interest of B. G., supra at 493-494, and In the Interest of M. S., supra at 381, the parents not only were excluded from the examination of the witness, but were deprived of the opportunity to effectively assist counsel, a situation which was not present in this case. “Any procedure which limits the party’s ability to confront the child witness must also be tailored to protect the right of confrontation to the greatest extent possible. [Cit.] As in M. S., supra, the trial court erred by completely excluding the mother from the courtroom without a showing of necessity and without using procedures which would accommodate her ability to hear the testimony and consult with her attorney.” In the Interest of B. G., supra at 494.

Decided March 31, 1998

Reconsideration denied April 14, 1998

Lindsey & Jacobs, Tamara Jacobs, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Bush & Smith, Wilson H. Bush, Jenkins & Nelson, John C. Shelton, W. Ashley Hawkins, for appellee.

In this case, the children were permitted to testify via closed circuit television so that the mother could hear the testimony, see the witness, and consult with her counsel. The juvenile court first heard from Dr. Toner regarding the psychological and emotional states of the children and the effect confrontation would have on them. Dr. Toner testified that the children were afraid of their mother and that their post traumatic stress syndrome could be worsened unless closed circuit television was used for their testimony. The juvenile court then decided, over the objection of counsel for the mother, to allow the closed circuit television examination.

While the juvenile court did not “make an evidentiary finding that the [children] would be substantially traumatized by the event and that the child’s welfare compels a limitation on the party’s right to confront the child witness,” In the Interest of B. G., supra at 494, the juvenile court, after hearing evidence to that effect, tacitly or implicitly adopted such evidence as the findings of fact of the court and ordered the closed circuit television examination over objection. See Maryland v. Craig, 497 U. S. 836, 851-852 (III) (110 SC 3157, 111 LE2d 666) (1990); In the Matter of the Adoption of J. S. P. L., 532 NW2d 653, 660-661 (N.D. 1995); In re Michael C., 557 A2d 1219, 1221 (R.I. 1989); In the Interest of B. G., supra at 494. There was no violation of the mother’s rights of due process as to confrontation.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.

       Pre-trial evidence to determine qualifications of the expert may come from a curriculum vitae, stipulations of fact, testimony, or judicial notice where appropriate.

       Tender may be made to the trial court outside the presence of the jury because the court’s determination of qualification may cause the jury to attach greater weight and credibility to an expert witness as a consequence. However, even if the trial court makes a determination of qualification outside the presence of the jury or the other party stipulates to the qualifications, counsel will want the jury to hear the qualifications for purpose of persuasion as to weight and credibility of the evidence. Therefore, no time is saved by such procedure.

       The trial court can make the determination of qualification on the record at a bench conference so that the evidence of qualification does not have to be presented twice.

       This is a method many trial judges employ to avoid announcing the acceptance of the expert witness in the presence of the jury.


author: Johnson, Judge.

text:
    A98A0657.
    HINELY v. HINELY.
    (501 SE2d 20)
   Johnson, Judge.

Joseph Hinely appeals the trial court’s order finding him in civil contempt for failing to pay over $8,000 in child support expenses. The trial court found Mr. Hinely in contempt for wilfully refusing to pay past obligations and directed that he pay the arrearage within 30 days or go to jail for 20 days. The order contains an additional provision authorizing future summary contempt and incarceration with neither notice nor a hearing if Mr. Hinely violates any part of the order. For reasons which follow, we affirm the trial court’s judgment holding Hinely in contempt, but remand with directions to strike that portion of the order related to possible future summary contempt.

1. Mr. Hinely contends the trial court erred in finding that he was in wilful contempt and in refusing to apply the doctrine of laches to the contempt action. It is Mr. Hinely’s duty, as appellant, to provide this Court with a record that will enable us to perform an objective review of the evidence and proceedings and determine whether the order appealed from is erroneous. OCGA § 5-6-41 (c). Where a complete transcript of the evidence adduced at trial is necessary, as in the present case, and the appellant omits it from the record on appeal or fails to submit a statutorily authorized substitute, we must assume the judgment below and the trial court’s actions are correct and supported by the evidence, and we must affirm. Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990). Consequently, we presume that the evidence authorized a finding that Mr. Hinely was in wilful contempt and that the doctrine of laches did not apply in this case.

2. Mr. Hinely further contends the trial court erred by including in the contempt order a provision which allows Ms. Hinely to have Mr. Hinely incarcerated merely by making an affidavit. We agree.

The trial court’s order provides: “Upon Defendant’s failure to meet any of the aforementioned conditions, and upon a sworn affidavit being submitted to this Court by Plaintiff indicating Defendant’s failure to abide by the above-described conditions, this Court shall enter an Order directing the Sheriff of Chatham County to incarcerate Defendant in the Chatham County Jail to begin serving the above-described twenty (20) day jail sentence.” There is no provision for any notice to Mr. Hinely nor any opportunity for Mr. Hinely to defend himself in a hearing.

To comport with due process, Mr. Hinely must receive reasonable notice of the contempt proceeding and must be given a hearing on the matter. See Brown v. King, 266 Ga. 890 (472 SE2d 65) (1996); Gibson v. Gibson, 234 Ga. 528 (216 SE2d 824) (1975). Because the trial court’s contempt order threatens Mr. Hinely’s due process rights by subjecting him to summary imprisonment, this provision must be stricken.

Decided March 31, 1998

Reconsideration denied April 14, 1998

Calhoun, Cerhone & Sapp, John R. Calhoun, for appellant.

Harold J. Cronk, for appellee.

Ms. Hinely argues that an additional hearing is not necessary to comport with due process because the provision at issue involves only past due sums owed by Mr. Hinely. This is incorrect. The trial court’s order also contains the following provision: “Hereafter, if Plaintiff asserts that Defendant is in arrears, she shall provide Defendant with a documented expense request, and Defendant will within thirty (30) days thereafter pay all such expenses that are required under this Court’s Orders.” This clause is followed by the provision at issue, providing that Mr. Hinely’s failure to meet this condition will result in his incarceration.

It is well established that a trial court cannot order incarceration pursuant to a self-effectuating order regarding future acts without benefit of a hearing. Burke v. Burke, 263 Ga. 141, 142 (2) (429 SE2d 85) (1993); Killmaster v. Killmaster, 208 Ga. App. 449, 450 (2) (430 SE2d 817) (1993). Thus, while the remainder of the trial court’s contempt order is proper based on our findings in Division 1, the portion of the order adjudging Mr. Hinely in automatic contempt for nonpayment of future amounts on the basis of Ms. Hinely’s affidavit and mandating incarceration for such contempt is improper in that it precludes a hearing to establish whether Mr. Hinely is actually in contempt and to establish the appropriate sanction if he is, in fact, found in contempt. Such a provision is unconstitutional. Upon remand, it is hereby ordered that the trial court strike this provision from its contempt order. Roehl v. O’Keefe, 243 Ga. 696, 697 (3) (256 SE2d 375) (1979).

Judgment affirmed. Case remanded with direction.

Birdsong, R J., and Smith, J., concur.