text:
    A99A0434.
    In the Interest of J. K., a child.
    (520 SE2d 19)
   Ruffin, Judge.

Appellant, the father of J. K., appeals from the juvenile court’s order terminating his parental rights. Appellant challenges the sufficiency of the evidence and argues that he was not given notice that his failure to legitimate the child would result in termination of his parental rights. Finding no error, we affirm.

J. K, the biological daughter of appellant, was born in May 1995. J. K.’s mother was — and still is — married to another man, with whom she has three other children. When J. K. was conceived, the mother’s husband was in prison and the mother was living with appellant. By the time J. K. was born, however, appellant was incarcerated, as well. Appellant was released in November 1995, after which he lived briefly with the mother and J. K. However, appellant returned to prison in 1997 and is currently serving an eight-year sentence.

In July 1997, while appellant was incarcerated, the Department of Family & Children Services (DFCS) received a report that J. K.’s mother had given her to a relative. DFCS found J. K. in the home of her uncle, which the agency determined to be an unsuitable placement. Following a hearing on September 2, 1997, the juvenile court found that J. K. was deprived and awarded temporary legal custody of her to DFCS. Later that month, a case plan was developed to reunite J. K. with her mother and her mother’s husband, who had been released from prison. Appellant was not included in the case plan because he remained incarcerated, and at the time, DFCS was unaware of how to reach him. On July 2, 1998, DFCS filed a petition to terminate the parental rights of J. K.’s mother, the mother’s husband, and appellant. On August 25, 1998, the juvenile court held a hearing on the termination petition.

Appellant, who was present at the hearing, testified that he has spent most of the past eight years incarcerated. In 1990, he pled guilty to burglary and was imprisoned for 16 months. Seven months after his release on parole, appellant was again arrested for burglary and again pled guilty. He was sentenced to eight years in prison, but was paroled in 1993 after serving two and one-half years. In April 1995, one month before J. K. was born, appellant was convicted of theft by receiving and served seven months in jail. In 1997, less than one year after his release from jail, appellant was arrested for felony theft by receiving. He pled guilty and received an eight-year sentence. At the time of the parental termination hearing, appellant had served 15 months of his sentence. Although appellant predicted that “[i]t shouldn’t be very much longer” before he is released, his sentence will not expire until 2005.

Appellant has never been married to J. K.’s mother and, at the time of the hearing, had taken no steps to legitimate J. K. Appellant testified that he lived with J. K. and her mother for ten. months in 1996 before he was incarcerated on the felony theft conviction, during which time he financially supported J. K. and fed and bathed her. The mother, however, testified that appellant lived with J. K. and her for only a month or two before he returned to prison. With the exception of this brief period in 1996, appellant has made no effort to support J. K. Appellant does not visit J. K. and presently has no relationship with her.

J. K. has an older sister, M. K., who also was fathered by appellant. Like J. K., M. K. was conceived during a period when the mother was living with appellant. Appellant was incarcerated when M. K. was born. M. K. was removed from her mother’s custody in 1995 and currently lives with an uncle. Appellant has never lived with M. K., and there is no evidence that he has ever contributed to her support or had any relationship with her either.

J. K.’s caseworker testified that J. K. currently lives in a licensed foster home. According to the caseworker, J. K. has adapted well to the placement and has bonded with her foster parents, who have expressed interest in adopting her.

Following the hearing, the juvenile court entered an order terminating appellant’s parental rights as to J. K. The court found that lack of proper parental care and control caused J. K.’s deprivation and that her parents, including appellant, were unfit.

1. The standard of review applicable to appellant’s challenge to the sufficiency of the evidence is “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Punctuation omitted.) In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). “[W]e defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” (Punctuation omitted.) In the Interest of S. N. N., 230 Ga. App. 109 (495 SE2d 602) (1998). OCGA § 15-11-81 (a) sets forth a two-step process to be used in termination of parental rights cases. First, the trial court determines “whether there is present clear and convincing evidence of parental misconduct or inability.” Id. Four factors must be present to establish parental misconduct or inability: (1) the child must be deprived; (2) the lack of proper parental care or control by the parent in question must cause the deprivation; (3) the cause of the deprivation must be likely to continue; and (4) continued deprivation must be likely to cause the child serious physical, mental, emotional, or moral harm. OCGA § 15-11-81 (b) (4) (A) (i)-(iv). If the trial court finds that these four factors exist, then the court determines whether termination of parental rights is in the best interest of the child. In the Interest of D. A. P., 234 Ga. App. 257, 259 (2) (506 SE2d 438) (1998).

We agree with the trial court’s determination of parental misconduct or inability on the part of appellant. As for the first factor, J. K. was judicially determined to be deprived and was taken into custody in July 1997. Because appellant never appealed the deprivation order, he is bound by the finding of deprivation and the first factor is satisfied. In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997).

In determining whether J. K.’s deprivation was caused by appellant’s lack of proper parental care or control, the trial court was authorized to consider, among other things, whether appellant’s incarceration for a felony “has a demonstrable negative effect on the quality of the parent-child relationship.” OCGA § 15-11-81 (b) (4) (B) (iii). “Although incarceration alone need not always compel the termination of parental rights, it can support such a ruling when sufficient aggravating circumstances are present.” In the Interest of D. A. P., supra. Moreover, an incarcerated parent’s history of repeated imprisonment for criminal offenses “constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.” (Punctuation omitted.) Id.; see also In the Interest of S. N. N., supra at 110 (1); In the Interest of T. B. R., 224 Ga. App. 470, 473 (1) (b) (480 SE2d 901) (1997). The evidence showed that appellant has repeatedly been imprisoned for criminal offenses over the past eight years, including most of J. K.’s life. He was arrested and incarcerated just one month before J. K. was born and is currently serving an eight-year sentence for a different crime. Appellant has provided no support for J. K. while in prison, has not contacted her, and has no relationship with her. These factors clearly constitute “aggravating circumstances” supporting the trial court’s finding that appellant’s incarceration has had a negative effect on J. K. In the Interest of D. A. P., supra.

When the child is not in the custody of the parent whose rights are at issue, the trial court must also consider whether the parent without justifiable cause failed significantly for a period of one year or longer (1) to communicate or make a bona fide attempt to communicate with the child in a meaningful, supportive, parental manner; (2) to provide for the care and support of the child; and (3) to comply with a court-ordered plan to reunite the child with the parent. OCGA § 15-11-81 (b) (4) (C). While in prison, appellant has made no attempt to communicate with either J. K. or M. K. and has provided no support. Appellant asserts that his failure to participate in the case plan for J. K. cannot be held against him because DFCS never asked him to participate. However, DFCS could not locate appellant, and there is no evidence that appellant attempted to contact anyone to ascertain J. K.’s whereabouts or custody status. In the Interest of D. A. P., supra at 259-260. In short, appellant demonstrated no interest whatsoever in J. K. during the year prior to the parental rights termination hearing. Thus, there was clear and convincing evidence that J. K.’s deprivation was caused, in part, by appellant’s lack of proper parental care or control.

We also uphold the trial court’s finding that J. K.’s deprivation would likely continue if appellant retained parental rights. “In determining whether conditions of deprivation are likely to continue, the court may consider the past conduct of the parent.” In the Interest of R. D. S. P., 230 Ga. App. 205, 207 (495 SE2d 867) (1998). Although appellant asserts on appeal that he “wants the responsibility of being a parent,” he gave no such testimony at trial,* *** and he offered no evidence of how he planned to care for J. K. should he retain parental rights. In addition, appellant’s “past and current criminal incarcerations evidence a patent disregard for the child’s welfare and that the pattern of deprivation is likely to continue.” In the Interest of S. N. N., supra.

Finally, the record supports the trial court’s conclusion that continued deprivation is likely to harm J. K. There is no parental bond between J. K. and appellant. J. K. has adapted well to foster care, and her foster parents wish to adopt her. “This evidence supports a finding that [J. K.] would suffer serious harm if returned to [appellant].” In the Interest of A. C., supra at 398.

As for the second prong of the termination analysis, we are persuaded that the termination of appellant’s parental rights is in the best interest of J. K., considering J. K.’s physical, mental, emotional and moral condition and her “need for a secure and stable home.” OCGA § 15-11-81 (a). “The same evidence showing parental misconduct or inability may, and here does, establish this requirement.” (Punctuation omitted.) In the Interest of C. L. R., 232 Ga. App. 134, 138 (2) (501 SE2d 296) (1998).

2. We find no merit in appellant’s second enumeration of error, that he was not given notice pursuant to OCGA § 15-11-83 (h) that failure to legitimate J. K. would result in termination of his parental rights. As we have held,

[t]he notice requirements of OCGA § 15-11-83 relate only to the availability of the abbreviated termination procedures contained therein and do not affect the jurisdiction of the court below to consider a termination proceeding, such as in the case sub judice, brought pursuant to OCGA § 15-11-81.

Decided June 25, 1999

Reconsideration dismissed July 16, 1999

McCamy, Phillips, Tuggle & Fordham, Ann H. Searcy, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, for appel-lee.

In the Interest of C. M. S., 218 Ga. App. 487 (1) (462 SE2d 398) (1995). Although DFCS’s petition for termination listed as one of the grounds for termination appellant’s failure to legitimate J. K., the juvenile court’s termination order was expressly based on appellant’s parental misconduct and inability, not his failure to legitimate J. K. Because appellant’s failure to legitimate J. K. “did not contribute to the judgment terminating parental rights . . ., there was no harm resulting from the absence of the notice directed by OCGA § 15-11-83 (e) and (g).” Id. at 488.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       In the same order, the juvenile court also terminated the parental rights of J. K’s mother and her husband, neither of whom has filed an appeal.

       At the time, the mother’s husband was the legal father of J. K.

       At the hearing, appellant indicated his desire to legitimate J. K., and a consent order of legitimation was entered prior to the entry of the order terminating appellant’s parental rights.

       Based on appellant’s admission at the hearing that he has used marijuana and on a photograph showing appellant holding baby J. K. near a substance resembling marijuana, the juvenile court found that appellant has a “history of chronic unrehabilitated use and abuse of intoxicating liquors and illegal drugs.” Appellant challenges this finding on appeal. Pretermitting whether there was sufficient evidence to support this finding, the juvenile court did not err in finding clear and convincing evidence of parental misconduct. The finding of drug abuse was not the only basis for the juvenile court’s termination order, and other competent evidence was sufficient to support a finding of parental misconduct or inability, such as appellant’s extensive criminal history and his failure to initiate or maintain contact with his children.

       Appellant testified only that he did not want J. K.’s mother to have custody of J. K. because her husband was not a fit parent.


source: Caselaw Access Project

author: Barnes, Judge. Blackburn, Presiding Judge,

license: Public Domain

text:
    A99A0386.
    OERTEL v. CHI PSI FRATERNITY (NATIONAL) et al.
    (521 SE2d 71)
   Barnes, Judge.

R. L. Oertel appeals the grant of summary judgment to Chi Psi Fraternity (“National”); Chi Psi Fraternity, Alpha Iota Delta Chapter (“Local”); Armin Steinke, as agent of the fraternity and individually; and Andrew Sain, as agent of the fraternity and individually. Mr. Oertel filed suit against the defendants after he was bitten by a large golden retriever named Spencer that lived at the fraternity house. After the incident, a representative of the fraternity pled guilty in Atlanta Municipal Court to allowing Spencer to run free and to keeping a vicious dog in violation of local ordinances.

Mr. Oertel’s complaint averred the defendants had ownership and control of Spencer and all knew of Spencer’s vicious propensities because they had been cited several times for allowing Spencer to run loose. Contending they had no knowledge of Spencer’s propensity to bite and denying any ownership interest in the dog, both Local and National moved for summary judgment. The record on appeal does not show that defendants Steinke or Sain filed motions for summary judgment, and the motions filed by National and Local do not seek summary judgment on their behalf.

After summary judgment was granted to all defendants, including Steinke and Sain, Oertel filed this appeal. He contends the trial court erred by granting summary judgment to Local because Steinke pled guilty on behalf of Local to having a dog at large and to having a vicious dog, and also contends the trial court erred by granting summary judgment to National because Local is an agent of National and was acting within the scope of its agency. While we agree with Oertel’s first contention, we find no factual support for the second and, therefore, must reverse in part and affirm in part.

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the party opposing the motion should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward that party. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). On appeal, this court conducts a de novo review of the law and the evidence. Boulware v. Quiktrip Corp., 226 Ga. App. 399 (486 SE2d 662) (1997); Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996).

2. The law concerning liability of owners or keepers of vicious or dangerous animals for injuries caused by that animal is codified at OCGA § 51-2-7:

A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the animal was at the time of the occurrence not at heel or on a leash. . . .

(Emphasis supplied.) Because it is alleged that Spencer was running at large in violation of the local ordinance when he bit Oertel, we are not concerned with whether the defendants were otherwise aware of Spencer’s alleged vicious propensities. The “one bite rule,” if it can be called that any longer, see Supan v. Griffin, 238 Ga. App. 404 (519 SE2d 22) (1999), is not implicated in this case.

The portion of OCGA § 51-2-7 emphasized above became effective July 1, 1985. It is not controverted that, at the time he allegedly bit Oertel in March 1995, Spencer was not on the fraternity’s premises and was not on a leash.

The clear and unambiguous language of OCGA § 51-2-7 establishes that the vicious propensity of an animal may be proved by showing that the animal was required to be “at heel or on a leash by an ordinance” of the applicable governmental body and that the animal at the time of the occurrence was not at heel or on a leash.

Fields v. Thompson, 190 Ga. App. 177 (378 SE2d 390) (1989). Although Oertel did not introduce copies of the particular local ordinances in question, he did present evidence through the deposition of defendant Steinke that Steinke appeared in Atlanta Municipal Court as a representative of the local fraternity after Spencer bit Oertel, and pled guilty to violations of the local ordinances for allowing Spencer to run at large and for maintaining a vicious dog.

This testimony was corroborated by the transcript of the hearing during which Steinke pled guilty as a representative of Local. In addition to Steinke’s plea, the transcript also contains the testimony of the animal control officer, who charged Steinke with having a vicious dog and a dog at large. Giving Oertel the benefit of all reasonable doubts and construing the evidence and all inferences and conclusions from the evidence in his favor, we find it reasonable to infer from Steinke’s deposition testimony and the transcript of the guilty plea hearing that an ordinance existed that required Spencer to be at heel or on a leash at the time that Spencer bit Oertel. Further, the evidence shows that Spencer was not at heel or on a leash when he bit Oertel. Accordingly, Oertel presented sufficient evidence for a question of fact to exist on the issue of Spencer’s vicious propensity.

By presenting evidence that appellee’s animal was required to be on a leash by an ordinance of the applicable governmental body and that the animal was not on a leash at the time of the occurrence, appellant has presented sufficient evidence to prove the vicious propensity of appellee’s dog under OCGA § 51-2-7. The trial court erred by granting summary judgment in appellee’s favor.

Fields, supra, 190 Ga. App. at 178.

Although the dissent concludes that Oertel’s response to the motion was not adequate because he “failed to provide sufficient evidence that Spencer’s owners should have known of his propensity to bite under either statutory or common law standards,” that argument fails on two grounds:

First, Oertel had no such burden.

In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the [said] animal was at the time of the occurrence not at heel or on a leash.

OCGA § 51-2-7. If an animal is running at large in violation of a local ordinance when it bites someone, the owner’s knowledge of its propensity to bite is immaterial.

By [the language of OCGA § 51-2-7] the General Assembly has abrogated in situations meeting the statutory requirements the prior case law of this court and the Supreme Court requiring proof in all instances that the owner of the animal had knowledge of the animal’s vicious propensity.

Fields, supra, 190 Ga. App. 177.

Second, contrary to the dissent’s assertion, Oertel met his burden as a respondent to a motion for summary judgment. Oertel’s burden was only to “point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp., 261 Ga. at 491. His obligation was to come forward with evidence raising a material issue of fact, not to prove conclusively the fact that is for the jury to decide. We are satisfied that, based upon the evidence discussed below and the inferences and conclusions to which he is entitled, Moore, supra, 187 Ga. App. at 595-596, Oertel has satisfied his burden. Further, courts should treat the nonmovant’s response “‘with considerable indulgence.’ ” (Citations omitted.) Haire v. City of Macon, 200 Ga. App. 744, 746 (409 SE2d 670) (1991).

The record shows that Oertel’s response to the motion for summary judgment relied upon the “dog at large” part of OCGA § 51-2-7 and used Steinke’s and Sain’s deposition testimony, as well as the transcript of the municipal court hearing, as evidentiary support for his argument. The defendants did not raise the objections now raised by the dissent. Instead, the defendants ignored the “dog at large” part of OCGA § 51-2-7, and continued to base their defense on the “one bite theory.”

Because of the dissent’s allegation regarding the inadequacy of Oertel’s response, it is important to understand the nature of the evidence showing the violation of the local ordinance. Therefore, the testimony on this issue is set out below:

Steinke’s deposition shows he was asked the following:

Q: How many times did you as an individual appear in court for a dog at large charge?
' A: I believe it was five times.
Q: Do you recall what the violations were beginning with the first through fifth that the animal control had cited you for?
A: To my knowledge, they were all dog at large which after asking questions it was just a dog not on a leash.
Q: When you went to court for the five times or approximately five times, you were there representing the fraternity. You weren’t there as an individual, were you?
A: Correct.
Q: Those five times you said — or did you, let me ask you that — yes, you were guilty of a dog at large and will pay the fine?
A: Correct.
Q: On June 13th, 1995, do you recall pleading guilty to having a vicious dog and the dog at large?
A: I do.
Mr. Sain’s deposition testimony shows the following:
Q: Do you recall on how many occasions your fraternity has been cited by law because of Spencer?
A: Cited by law, for the time I was there I would guess it’s probably been about three. There probably have been about three fines or four fines paid for dog at large.

The transcript of the municipal court proceedings at which Steinke pled guilty to having a vicious animal and dog at large shows the court asked:

[H]ow do you plead to vicious animal and dog at large? Are you guilty or not guilty?
Mr. Steinke: Guilty.

The animal control officer who investigated this incident testified that Oertel told her:

He was attacked by Spencer the golden retriever. The dog was loose and unattended at the time of the incident and he was bit on the leg. . . . [Steinke] came to animal control and was issued citations for vicious animal and dog at large.

At the conclusion of this hearing Steinke stated, “I have a check from the fraternity to cover the amount. It’s technically not my dog, I’m just a liaison who came down to take care of the situation.”

The only reasonable inferences that can be drawn from this testimony is that a local ordinance exists which prohibited Spencer from running at large while not on a leash and that when Spencer bit Oertel, Spencer was running loose in violation of the ordinance. With this testimony, Oertel was not required to prove the contents of the local ordinance as if he were at trial. See Tassen v. Waffle House, 221 Ga. App. 755, 756-757 (472 SE2d 545) (1996) (finding jury issue regarding violation “of an applicable building code” in case where expert witness averred that steps “were in violation of the building code”).

Further, the authority the dissent relies upon, Dudley v. State, 161 Ga. App. 310, 311 (1) (287 SE2d 763) (1982), is a probation revocation case in which it was asserted that Dudley’s probation should be revoked because he violated a local ordinance. Obviously, the State had the burden of proving the local ordinance at the revocation hearing, and Oertel will have the same burden when this case is tried. The dissent cites no cases, however, imposing upon plaintiffs responding to motions for summary judgment the heavy burden the dissent would impose on Oertel.

3. Under our law, liability for the actions of vicious animals is imposed, in appropriate circumstances, upon the owners and keepers of the animals. OCGA § 51-2-7. Here, there is no evidence that Chi Psi National ever owned or kept Spencer. To the contrary, a representative of the national fraternity testified by affidavit that National did not own, keep, or control Spencer and that National had nothing to do with Spencer or with Spencer’s stay at the local chapter. As this evidence was unrebutted, the trial court did not err by granting summary judgment to National. A grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746) (1993).

4. The same cannot be said, however, on behalf of Local and the individual defendants. There is no question that Spencer was owned or kept by the fraternity. Spencer’s photograph appears in the local chapter’s composite photograph among the members of the fraternity with the title “mascot,” he lived at the fraternity house, the fraternity paid for Spencer’s “shots and stuff,” and the fraternity sent a representative to pay his fines on the several, perhaps five, other occasions that he was fined for running at large.

As neither of the individual defendants moved for summary judgment and the trial court failed to ensure that Oertel was “given full and fair notice and opportunity to respond prior to entry of summary judgment” in their favor {Hodge v. Sada Enterprises, 217 Ga. App. 688, 690 (458 SE2d 876) (1995)), we must reverse the grant of summary judgment to Steinke and Sain. We express no opinion, however, whether they should be held liable under OCGA § 51-2-7, either individually or as agents of the fraternity.

Based upon the evidence discussed above, we find the trial court erred by granting summary judgment to the local fraternity and the individual defendants. Tutak v. Fairley, 198 Ga. App. 307, 308 (401 SE2d 73) (1991).

Judgment affirmed in part and reversed in part.

Johnson, C. J., McMurray, P. J., and Ellington, J., concur. Andrews, P. J., Blackburn, P. J., and Ruffin, J., dissent.

Blackburn, Presiding Judge,

dissenting.

As Oertel failed to provide sufficient evidence that Spencer’s owners should have known of his propensity to bite under either statutory or common law standards, I respectfully dissent from the opinion of the majority.

In reaching its decision, the majority relies on OCGA § 51-2-7, which provides:

A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.

In making this presumption of viciousness available to a plaintiff, this Code section varies greatly from Georgia’s long history of common law which requires a plaintiff to make the much more difficult showing that (1) the dog had the propensity to do the act which caused the injury and (2) the owner had knowledge of that propensity. See Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120) (1998). Like other statutes which are in derogation of common law, OCGA § 51-2-7 must be strictly construed and limited to its explicit terms. See, e.g., Payne v. Kanes, 234 Ga. App. 524, 527 (1) (507 SE2d 266) (1998).

To raise the presumption of Spencer’s viciousness under OCGA § 51-2-7, Oertel had to prove the existence of an ordinance requiring Spencer to be at heel or on a leash, as specifically contemplated by that statute. Evans-Watson v. Reese, 188 Ga. App. 292, 294 (372 SE2d 675) (1988) (DeKalb County ordinance too broad to be type of ordinance contemplated by OCGA § 51-2-7). However, the record is devoid of the substantive provisions of the ordinance Oertel claims was violated. Without providing this Court with an admissible copy of the ordinance, Oertel has failed to make the requisite showing to trigger the statutory presumption of viciousness. “In the absence in evidence of a properly admissible copy of the ordinance involved, neither the trial court nor this court may take judicial notice of the existence of a local ordinance.” Dudley v. State, 161 Ga. App. 310, 311 (1) (287 SE2d 763) (1982). “[T]he ordinance[ ] must be alleged and proved.” AT&T Wireless PCS v. Leafmore Forest Condominium Assn., 235 Ga. App. 319, 323 (3) (509 SE2d 374) (1998). Finally, the ordinance, in this case, must be the type to which OCGA § 51-2-7 speaks. Reese, supra. Oertel has made none of these showings of proof.

The fact that the record does contain a transcript of Steinke’s guilty plea to a violation of a “dog at large” and “vicious animal” ordinance does not change this result, as this transcript does not include a properly admissible copy of the ordinance involved. Additionally, the guilty plea, itself, cannot be used as an admission to circumvent the mandatory evidentiary requirement to prove the applicable ordinance. The majority supports its position by citing transcripts and depositions at length; however, parole evidence is insufficient to prove a municipal ordinance. Greenberg v. Rothberg, 72 Ga. App. 882, 883 (3) (35 SE2d 485) (1945). Moreover, without knowing the content of the laws to which Steinke pled guilty, this Court cannot assume what the substance of Steinke’s admissions against interest might be. A properly admissible copy of the ordinance is the only remedy for these evidentiary shortfalls. As such, Oertel’s assertion that Steinke admitted that Spencer was a vicious dog must be rejected.

While the standard for summary judgment allows this Court to draw favorable inferences based on the evidence which is present in the record, it does not allow this Court to assume the existence of evidence which is not in the record, whether by inference, supposition, or otherwise. The cited testimony is not sufficient to excuse Oertel’s failure to prove the local ordinance on which he relies.

Tassen v. Waffle House, 221 Ga. App. 755 (472 SE2d 545) (1996), cited by the majority, does not excuse a respondent to a summary judgment motion from proving the contents of a local ordinance on which his case relies. In Tassen, a rainy day slip and fall case, this Court does not address, either explicitly or implicitly, the necessity to prove a local ordinance, and it was not at issue in that case. Tassen, therefore, provides no precedential value here.

Oertel had the burden “to point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The law requires proof of the ordinance relied on in addition to its contents. Otherwise, there is no proof that the ordinance has been violated. Oertel failed to meet this burden, and therefore, as such, he cannot rely on the powerful presumptions of OCGA § 51-2-7.

Decided July 16, 1999.

John H. Ridley, Jr., for appellant.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Brian J. Amero, Hawkins & Parnell, Anita W. Thomas, for appellees.

There is also some evidence in the record that, prior to being bitten, Oertel slapped his foot against the ground in an attempt to frighten away Spencer. This testimony could support an inference that Oertel provoked the attack, thereby preventing his use of the viciousness presumption of OCGA § 51-2-7. However, as the nonmov-ant for summary judgment purposes, Oertel has the right to have the facts viewed in his favor, and, as such, his attempt to frighten Spencer, standing alone, would not support the grant of summary judgment against him.

Nevertheless, because the city ordinance which Oertel claims Spencer’s owners violated was not proven, Oertel’s claims may survive summary judgment only if the evidence shows, pursuant to common law, that (1) Spencer had the propensity to bite and (2) his owners had knowledge of that propensity. Hamilton, supra. The record shows, however, that Spencer had never bitten anyone before, and the defendants had no knowledge of any such propensity. As such, the trial court appropriately granted summary judgment to the defendants. Hamilton, supra.

I am authorized to state that Presiding Judge Andrews and Judge Ruffin join in this dissent.

       I must also note that there is no testimony reciting the contents of these laws or any reference pointing this Court as to where these laws would be found. In fact, Oertel does not even provide this Court with a citation to the ordinance in his appellate brief.


author: Ruffin, Judge. Blackburn, Presiding Judge,

text:
    A99A0389.
    GLOVER v. THE STATE.
    (521 SE2d 84)
   Ruffin, Judge.

John Glover challenges the sentence imposed by the trial court upon the revocation of his probation, alleging that the sentence is longer than allowed under OCGA § 42-8-34.1 (b). As explained below, we find that the trial court acted within its discretion, and we affirm.

Glover pled guilty in 1989 to multiple counts of child molestation and related charges stemming from his repeated sexual abuse of a minor under 14 years of age. Glover was sentenced to thirty years, with seven years to be served in prison and the remainder to be probated. In addition to general conditions of probation, the trial court imposed seven special conditions of probation, including two conditions limiting Glover’s contact with minor children and one condition requiring Glover to attend counseling for sexual deviancy. Glover was released from prison in 1996 after serving seven years. In 1997, Glover was arrested for making contact with a four-year-old girl at church, in violation of the conditions of his probation. The Department of Corrections filed a petition to modify or revoke Glover’s probation, charging him with violating the special conditions of his probation restricting contact with minors, as well as several of the general conditions.

Following a hearing, the trial court found that Glover had violated three of the special conditions of his probation by making direct contact with a minor, engaging in volunteer work that brought him into contact with a minor, and failing to attend counseling. The trial court revoked Glover’s original sentence and ordered him to serve ten years, with the balance of his original sentence to be probated.

Glover filed a motion to vacate his sentence, arguing that under OCGA § 42-8-34.1 (b) the trial court was only authorized to revoke a maximum of two years of his probation. The trial court denied Glover’s motion, and we granted his application for discretionary appeal. On appeal, Glover challenges only the length of his sentence, not the revocation itself.

1. OCGA § 42-8-34.1 governs the length of detention permitted on a probation revocation. Lawrence v. State, 228 Ga. App. 745, 747 (492 SE2d 727) (1997). Upon proof that the defendant has violated any provision of his probation “other than by commission of a new felony offense,” the trial court “may revoke the balance of probation or not more than two years in confinement, whichever is less.” OCGA § 42-8-34.1 (b). If, however, the defendant has violated his probation by

the commission of a felony offense or the violation of a special condition imposed pursuant to this Code section, notwithstanding any other provision of law, the court may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the crime constituting the violation of the probation.

(Emphasis supplied.) OCGA § 42-8-34.1 (c). Although the trial court found that Glover violated the special conditions of his probation, Glover contends that OCGA § 42-8-34.1 (c) does not apply here because these special conditions were not “imposed pursuant to” OCGA § 42-8-34.1. Thus, Glover argues that the applicable section is OCGA § 42-8-34.1 (b), which limits Glover’s detention to two years.

There is scant authority interpreting OCGA § 42-8-34.1 (c)’s reference to “a special condition imposed pursuant to this Code section.” The Supreme Court of Georgia first addressed § 42-8-34.1 (c) in Gear-inger v. Lee, 266 Ga. 167 (465 SE2d 440) (1996), which involved a probation revocation based on the defendant’s violation of a special condition of probation. The defendant originally was sentenced to five years of probation on a theft conviction and ten years of probation on a drug conviction, but his probation was “thereafter modified and he was remanded to a detention center by an order that set forth as a ‘Special Condition of his probation,’ ” the requirement that he obey all rules of the detention center. Id. at 168. The defendant’s probation was thereafter revoked based on his violation of four disciplinary rules at the detention center, none of which involved the commission of a felony. The trial court ordered the defendant to serve the remaining time on his sentence for theft in prison, plus five years of his sentence for drug possession, with the balance of the drug sentence to be served on probation.

The Supreme Court ruled that the defendant’s disciplinary infractions “constitute [d] a ‘violation of a special condition’ of his probation,” and thus OCGA § 42-8-34.1 (c) authorized the trial court to revoke up to the balance of the defendant’s probation. Id. at 169 (1). The Supreme Court did not address the effect of § 42-8-34.1 (c)’s requirement that a special condition be “imposed pursuant to this Code section” and did not discuss whether the special conditions at issue in Gearinger were, in fact, “imposed pursuant to” OCGA § 42-8-34.1. Rather, the Supreme Court broadly stated, without qualification, that “where . . . the violation of probation results solely from infraction of a special condition and not from commission of a felony offense,” the trial court may revoke up to the balance of the defendant’s probation. (Emphasis supplied.) Id. at 170.

The Supreme Court next construed OCGA § 42-8-34.1 (c) in Mancille c. Hampton, 266 Ga. 857 (471 SE2d 872) (1996), in which the defendant’s probation was revoked because he committed a felony and violated a special condition of his probation by failing to pay court-imposed fines. Under those circumstances, the Supreme Court held that § 42-8-34.1 (c) authorized the trial court to revoke the balance of the defendant’s probated sentence (twenty-three years), rather than the maximum sentence for his felony (ten years). Id. at 859 (2). In reaching this result, the Supreme Court restated its holding in Gearinger that “where probation is revoked solely for the violation of a special condition, and not for a felony offense . . . the revocation court is authorized by section 42-8-34.1 (c) to revoke no more than the balance of a defendant’s probation.” (Punctuation omitted.) Id. Once again, the Supreme Court ignored § 42-8-34.1 (c)’s qualifying language, “imposed pursuant to this Code section,” making no distinction among different types of special conditions.

Thus, in Gearinger and Manville, the Supreme Court implicitly recognized that the phrase “imposed pursuant to this Code section” is meaningless, as § 42-8-34.1 does not authorize the imposition of any special conditions of probation. Rather, as we recently explained in Williams v. State, 234 Ga. App. 37, 38 (505 SE2d 816) (1998), that authority originates elsewhere:

A trial judge is expressly authorized by OCGA § 17-10-1 (a) to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. OCGA § 42-8-35 sets forth 12 conditions which may be imposed on probation. This list, however, is not exclusive. A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.

(Citations, punctuation and emphasis omitted.) See also Staley v. State, 233 Ga. App. 597, 598 (505 SE2d 491) (1998) (OCGA § 17-10-1 (a) (1) “has been construed to give sentencing judges broad discretion in fashioning appropriate conditions of probation, tailored to the individual defendant’s circumstances as well as the interests of society and the victim”); Penaherrera v. State, 211 Ga. App. 162, 163 (1) (438 SE2d 661) (1993) (“[a]ny ‘reasonable condition’ may be imposed”); Ballenger v. State, 210 Ga. App. 627, 628 (1) (436 SE2(l 793) (1993).

Following the Supreme Court’s decisions in Gearinger and Manville, this Court, in two subsequent cases, has attempted to give meaning to § 42-8-34.1 (c)’s phrase “imposed pursuant to this Code section.” See Lawrence v. State, 228 Ga. App. 745 (492 SE2d 727) (1997); Dunlap v. State, 231 Ga. App. 83 (497 SE2d 640) (1998). In Lawrence, the defendant’s probation was revoked for the commission of two misdemeanor batteries and failure to pay fines ordered as a special condition of probation. The trial court sentenced the defendant to serve the balance of his sentence, which was four-and-one-half years, based on the commission of the batteries. This Court vacated the sentence on the ground that § 42-8-34.1 (b) allowed the trial court to revoke a maximum of two years of the defendant’s sentence for the misdemeanor batteries. However, the Court instructed that, pursuant to § 42-8-34.1 (c), the trial court could revoke the balance of the defendant’s sentence based on his nonpayment of fines, because the payment of fines was a special condition “imposed pursuant to this Code section.” Id. The Court apparently based this conclusion on § 42-8-34.1 (d)’s reference to “[t]he payment of restitution or reparation, costs, or fines.”

However, § 42-8-34.1 (d) does not authorize the imposition of fines as a special condition of probation; it merely states that the court may require any fines “ordered by the court” to be paid in one lump sum or in periodic installments. As noted above, other Code sections provide the statutory authority for imposition of special conditions. In particular, the imposition of fines is specifically authorized by OCGA §§ 17-10-8 and 42-8-34 (e). See Whitehead v. State, 207 Ga. App. 891, 892 (2) (429 SE2d 536) (1993); Todd v. State, 172 Ga. App. 231 (1) (323 SE2d 6) (1984). Thus, fines are not “imposed” as a special condition of probation “pursuant to” § 42-8-34.1, despite the fact that they are mentioned in that section.

Moreover, Lawrence noted without explanation that the special condition at issue in Gearinger, the requirement that the defendant comply with the detention center’s disciplinary rules, was “not a special condition ‘imposed pursuant to [OCGA § 42-8-34.1].’” However, our Supreme Court ruled that § 42-8-34.1 (c) governed in Gearinger. Thus, Lawrence essentially ruled that Gearinger was wrongly decided by the Supreme Court, a determination this Court is not authorized to make.

In Dunlap, which is factually similar to this case, the defendant was sentenced to ten years for theft by taking, but the sentence was suspended upon the defendant’s payment of a fine and the condition of banishment from the county. Id. at 82. One week later, the defendant violated the banishment condition, and the trial court ordered him confined for ten years. On appeal, the defendant argued that banishment was not a special condition imposed pursuant to OCGA § 42-8-34.1, and thus only two years of his probation could be revoked pursuant to § 42-8-34.1 (b). Citing Lawrence, this Court agreed and reversed the trial court’s denial of the defendant’s motion to vacate his sentence. Id. at 83-84.

Dunlap did not follow Lawrence exactly, but instead fashioned its own definition of “imposed pursuant to this Code section.” Dunlap noted that § 42-8-34.1 (b) requires the trial court, at any revocation hearing, to consider “alternative [s] to confinement,” including: “community service, intensive probation, diversion centers, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county.” Id. at 83. According to Dunlap, any special condition imposed at a revocation hearing, as opposed to a condition imposed as part of the original sentence, is “imposed pursuant to” § 42-8-34.1 (b). However, this attempt to give meaning to the phrase “imposed pursuant to this Code section” finds no support in the statutory language. Although subsection (b) directs the trial court to consider certain alternatives to incarceration, the authority for imposing such alternatives as special conditions of probation is found in other statutes, and not in subsection (b). See OCGA §§ 42-8-35.1 through 42-8-35.6.

Further, Dunlap asserted that the special condition in Gearinger was imposed pursuant to § 42-8-34.1 (b) because it was “imposed at the revocation of the defendant’s probation,” rather than as part of the original sentence. Dunlap, supra at 83. Gearinger itself, however, states only that the defendant’s probation was modified; it does not indicate that the modification occurred at a revocation hearing based on a violation of probation, as required by § 42-8-34.1 (b), or that the special condition was imposed as an “alternative to confinement” pursuant to that subsection. See Gearinger, supra at 168. Trial courts have broad authority to modify the terms of probation “in any manner deemed advisable.” OCGA § 42-8-34 (g); Staley, supra at 599. Hence, we have no basis for assuming that the modification of the defendant’s probation in Gearinger occurred at a revocation hearing as described in § 42-8-34.1 (b). And, even if it did, we cannot assume that that was the basis for Gearinger’s conclusion that § 42-8-34.1 (c) controlled the case — particularly when Gearinger completely failed to address the meaning of the phrase “imposed pursuant to this Code section.” If, as Dunlap suggested, the critical issue is whether the special condition was imposed under the authority of § 42-8-34.1 (b), we believe that the Supreme Court would have included such facts in its analysis.

We are bound by the Supreme Court’s decisions in Gearinger and Manville, which recognized no limitations on the special conditions subject to § 42-8-34.1 (c). It is not the function of this Court to give meaning to language that the Supreme Court has chosen to disregard, or to assume that the two Supreme Court decisions turn on facts not disclosed in that Court’s opinions. Accordingly, we overrule Lawrence and Dunlap to the extent that those cases hold that the phrase “imposed pursuant to this Code section” limits the type of special conditions to which § 42-8-34.1 (c) applies.

OCGA § 42-8-34.1 (c) governs the revocation of Glover’s probation for violating three of the special conditions of his probation. The trial court was authorized to revoke up to the balance of Glover’s probation (approximately 22 years). See Gearinger, supra at 170. In sentencing Glover to ten years incarceration, with the remainder to be served on probation, the trial court acted well within its discretion. Accordingly, we affirm the trial court’s denial of Glover’s motion to vacate his sentence.

2. The special concurrence notes that OCGA § 42-8-34.1 (b) directs the trial court, in a revocation hearing, to consider the use of certain “alternatives to confinement.” We have held that confinement refers to “imprisonment in a jail or penitentiary, which is primarily punitive,” and that the “alternatives to confinement” are intended to constitute “suitable responses short of revocation of probation.” Penaherrera, supra. Under OCGA § 42-8-34.1 (b), “[i]n the event the court determines that defendant does not meet the criteria for said alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less.” The special concurrence contends that the trial court determined that Glover did meet the criteria for such alternatives to incarceration, and that the two year limitation set forth in subsection (b) therefore did not apply. This contention is misplaced for several reasons.

First, and most important, the revocation order expressly states that “[t]his Court . . . finds that the Defendant does not satisfy the incarceration alternatives.” The special concurrence dismisses this express finding by noting that the revocation order was “apparently a form drafted by the district attorney’s office.” However, we are aware of no authority holding that an order of a court is to be given less effect if it is drafted by a party, which is in fact a common occurrence. Indeed, we have specifically held that “once the findings [in a proposed order drafted by a party are] adopted by the court, they bec[o]me findings of the court.” Williams v. Stepler, 227 Ga. App. 591, 595-596 (490 SE2d 167) (1997). Accordingly, we see no basis to disregard the trial court’s express finding that Glover was not eligible for alternatives to incarceration.

The special concurrence’s disregard of the trial court’s express finding is based upon its belief that the trial court in fact sentenced Glover to a probation detention center as an alternative to incarceration, and thus must have concluded that Glover was eligible for such alternatives. However, nothing in the trial court’s revocation order supports this assertion. Indeed, nowhere in the revocation order is the phrase “probation detention center” even used. Rather, the order states that

it is . . . ORDERED AND ADJUDGED that the probation provisions in [Glover’s] original sentence be REVOKED in accordance with the law, and the Defendant is hereby required to serve 10 years in a Detention Center or such place as the Director of Corrections or the Sheriff of Cobb County shall direct.

The order further provides that Glover’s probation will be reinstated upon the completion of the ten-year sentence.

The use of probation detention centers as an alternative to incarceration is authorized by OCGA § 42-8-35.4 (a), which states that “[i]n addition to any other terms and conditions of probation . . . the trial judge may require that a defendant. . . shall complete satisfactorily, as a condition of. . . probation, a program of confinement in a probation detention center.” Although the trial court’s order included the generic term “detention center” in describing possible places where Glover might be incarcerated, nothing in the order suggests that the trial court was in fact imposing a special condition of probation requiring Glover to serve a period of confinement in a statutory “probation detention center.” Indeed, the order did not even require Glover to serve time in any detention center, but ordered that he serve ten years in any place the Director of Corrections or the Cobb County sheriff might select. The fact that Glover was ordered to serve ten years of confinement shows that the trial court did not intend to impose a special condition of probation, but intended to require that Glover be incarcerated for an entire decade. See Pitts v. State, 206 Ga. App. 635, 637 (3) (426 SE2d 257) (1992) (sentence of incarceration “denotes a continuous period of confinement in a jail or penitentiary uninterrupted by periods of freedom”). Compare Penaherrera, supra (90 to 270-day period in probation detention center constitutes alternative to incarceration). Although the special concurrence notes that Glover for a time was held in the Cobb County Adult Detention Facility, it appears that this is simply the county jail where Glover was held after being arrested for the probation violations and pending the revocation hearing. Moreover, there is no indication in the record that the Cobb County Adult Detention Facility is, in fact, a statutory “probation detention center” or that all persons confined there are serving periods of confinement as conditions of probation. Finally, as authorized by the trial court’s revocation order, Glover has since been transferred to a state penitentiary, which is undoubtedly a place of incarceration.

Under all of these circumstances, and especially in light of the trial court’s express finding that Glover was not eligible for any alternatives to incarceration, the revocation order cannot be construed as anything other than an order that Glover be incarcerated for a period of ten years in any place the Director of Corrections or Cobb County sheriff might select. Accordingly, we cannot rely on OCGA § 42-8-34.1 (b) as a basis for upholding the ten-year revocation, but must rely on OCGA § 42-8-34.1 (c) as discussed in Division l.*

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Andrews, P. J., Smith, Barnes, Miller, Ellington and Phipps, JJ, concur. Blackburn, P. J., and Eldridge, J., concur specially.

Blackburn, Presiding Judge,

concurring specially.

I concur in the result reached by the majority, but I cannot agree with the analysis therein or the overruling of Lawrence v. State, 228 Ga. App. 745 (492 SE2d 727) (1997) or Dunlap v. State, 231 Ga. App. 82 (497 SE2d 640) (1998).

The trial court properly sentenced Glover to ten years at a detention center, an authorized alternative option, pursuant to OCGA § 42-8-34.1, for three violations of special conditions of probation pursuant to OCGA § 42-8-34.1.

OCGA § 42-8-34.1 (b) provides:

At any revocation hearing, upon proof that the defendant has violated any provision of probation or suspension other than by commission of a new felony offense, the court shall consider the use of alternatives to include community service, intensive probation, diversion centers, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county. In the event the court determines that the defendant does not meet the criteria for said alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less.

(Emphasis supplied.)

In revoking probation, the revocation court used an “alternative to confinement” and revoked ten years of Glover’s sentence, to be served in a detention center: “I’m going to follow the State’s recommendation and sentence him to ten years at the detention center.” See OCGA § 42-8-34.1 (b). In doing so, the two-year maximum requirement of OCGA § 42-8-34.1 (b) did not apply, because, under the statute, such two-year requirement becomes applicable only “[i]n the event the court determines that the defendant does not meet the criteria for said alternatives [to confinement].” (Emphasis supplied.) Id. Accordingly, the court’s revocation of ten years to be served in a detention center was authorized under OCGA § 42-8-34.1 (b). The majority’s discussion regarding the meaning of “imposed pursuant to this Code section” as contained in OCGA § 42-8-34.1 (c) therefore is unnecessary; and no cases need be overruled.

I note that the probation revocation order, which was apparently a form drafted by the district attorney’s office, states that the trial court found that Glover did not satisfy incarceration alternatives. This statement on the form order is, however, directly inapposite to the trial court’s sentence of Glover to an alternative to confinement, namely a detention center, and Glover’s actual delivery to such a center. As such, it is clear that, despite the erroneous language of the order, the trial court did indeed find that Glover satisfied the requirements to be sentenced to an alternative to incarceration, and it sentenced Glover to just such an alternative.

Pursuant to the revocation court’s order, Glover was properly sent to the Cobb County Adult Detention Facility. However, Glover alleges that he was subsequently transferred to Phillips Correctional Institution, a state department of corrections (DOC) prison facility. Thus, Glover contends that the court’s otherwise proper ten-year revocation sentence is now “illegal,” because he is no longer serving it in an “alternative to confinement,” and, as such, his revocation should have been for a maximum of two years pursuant to OCGA § 42-8-34.1 (b). He filed the instant “motion to vacate illegal sentence,” and the revocation court denied such.

There is nowhere in the record before this Court, any evidence that Glover is, in fact, serving his revocation sentence in a manner other than that ordered by the revocation court, i.e., in an “alternative to confinement.” Further, before this Court, there is no transcript of the hearing on Glover’s motion to vacate illegal sentence, and the revocation court’s order does not indicate a basis for its denial of the motion.

However, as noted above, the court’s revocation of ten years to serve in a detention center was not “illegal” under OCGA § 42-8-34.1 (b). The alleged transfer of Glover to a state DOC prison facility would not render an otherwise legal revocation sentence illegal. Assuming Glover was in fact transferred to a DOC prison in contravention of the revocation court’s order, such does not render the court’s order requiring ten years to be served in a detention center, “an illegal sentence” under OCGA § 42-8-34.1 (b).

Glover also argues that, even if he is serving his revocation sentence in a probation detention center, such center is not an “alternative to confinement,” because “there is no difference to a detainee whether he is housed in a prison or a detention center.” However, Glover’s argument is premised upon the faulty notion that an “alternative to confinement” is based upon a defendant’s subjective perceptions thereof.

The confinement referred to means imprisonment in a jail or penitentiary, which is primarily punitive, rather than the type of confinement described in Pitts [c. State, 206 Ga. App. 635, 637 (3) (426 SE2d 257) (1992)], where the primary goal is rehabilitation. . . . Georgia law thus authorizes a trial court to condition a defendant’s probation on limited confinement in a detention or diversion center or own home. Such does not constitute incarceration, which refers to continuous and uninterrupted custody in a jail or penitentiary.

Penaherrera v. State, 211 Ga. App. 162, 163 (438 SE2d 661) (1993). Accordingly, confinement in a probation detention center is an alternative to incarceration in prison, even if Glover does not perceive it as such.

The headnote of the 1989 amendment to OCGA § 42-8-34.1 (b) states that such amendment was specifically “to provide for the revocation of the balance of probation or not more than two years thereof, whichever is less, for violations.” There was no qualification regarding the type of violation as going to either a “special” or “general” condition of probation. Ga. L. 1989, p. 856. Thereafter, in furtherance of its goal, the legislature specifically provided in subsection (b) that “upon proof that the defendant has violated any provision of probation . . . other than [the] commission of a new felony offense,” the revocation court should consider alternatives to confinement, and if not applicable, “revoke the balance of probation or not more than two years in confinement, whichever is less.” Id.

Thus, the majority would have to find as “meaningless” not only the language, “pursuant to this Code section,” as contained in OCGA § 42-8-34.1 (c), but also the plain language of subsection (b) requiring a two-year maximum confinement for a violation of any condition of probation, other than a new felony offense. It would be necessary to rewrite both subsections (b) and (c) of OCGA § 42-8-34.1 in order to support the majority’s interpretation. Subsections (b) and (c) presently work together in harmony, with no part being “meaningless.”

Subsection (b) provides probation revocation guidelines when a court considers (1) alternatives to confinement, or, in lieu thereof, (2) confinement for a violation of any condition of probation that is non-felony.

Subsection (c) fills in the gaps by providing alternative, and more severe, revocation guidelines when a trial court considers (1) a violation of a condition of probation by the commission of a felony, or (2) a violation of a condition imposed by a revocation court during a prior revocation hearing, i.e., “pursuant to this Code section.”

Clearly, when an original probation sentence is revoked for less than the balance of probation, as will almost always happen when, pursuant to OCGA § 42-8-34.1 (b), only two years are revoked at a time, a second term of probation, with conditions, may be reinstated by the revocation court for the remainder of the original sentence. Or, when an alternative to confinement is imposed pursuant to OCGA § 42-8-34.1 (b), certain conditions may be imposed thereto by the revocation court and a period of probation, with conditions, reinstated for the remainder of the original sentence. That is what happened in this case — Glover’s sentence was revoked for ten years and the balance of the original probation, with conditions, was reinstated by the revocation court.

It is these instances to which the language “imposed pursuant to this Code section” speaks. The only way a condition of probation could be imposed “pursuant to this Code section,” a Code section that deals solely with revocation proceedings, is if the condition is imposed during a revocation proceeding. Thereafter, the probationer has already had one bite at the “two-year or alternative to incarceration” apple contained in subsection (b), and is again before the court for a violation of an imposed condition. Then, obviously, the more severe revocation of the balance of probation is warranted under subsection (c).

Further, the majority’s distinctions between “special conditions” and “general conditions” of an original probation sentence add nothing to the analysis in this case. The legislature has provided that a violation of any condition of an original probation, other than the commission of a felony offense, warrants revocation under the guidelines of subsection (b). After a revocation court, pursuant to OCGA § 42-8-34.1 (b), revokes an original term of probation for two years or revokes to an alternative to confinement for a term less than the balance of probation, any condition imposed by the revocation court as a result of the alternative to confinement and/or reinstatement of probation may be considered as a “special condition imposed pursuant to this Code section.”

In Gearinger v. Lee, 266 Ga. 167 (465 SE2d 440) (1996), Lee pled nolo contendere to theft by conversion and pled guilty to possession of cocaine and was sentenced to five years probation on the theft charge and ten years probation on the possession charge. Lee’s probation was thereafter modified and he was remanded to a detention center by an order that set forth as a “Special Condition of his probation,” inter alia, that Lee obey “any and all rules, regulations, and policies” of the center. Lee’s probation was subsequently revoked on petition for violation of the special conditions, and he was ordered to serve in jail the remainder of his sentence on the theft charge and the next five years of his sentence on the possession charge, with the balance of the time remaining on the latter sentence to be served on probation. Our Supreme Court affirmed the revocation court’s order, reversing the ruling of the habeas court. The Supreme Court held that the subject revocation comported with OCGA § 42-8-34.1 (c), and that where a revocation results from a violation of a special condition, and not for a felony offense, the revocation court need not determine the lesser of the remaining probated sentence or the maximum penalty for the felony committed. It stated that the revocation court is authorized under such circumstances to revoke no more than the balance of a defendant’s probation.

OCGA § 42-8-34.1 (c) provides:

If the violation of probation or suspension alleged and proven by a preponderance of the evidence or the defendant’s admission is the commission of a felony offense or the violation of a special condition imposed pursuant to this Code section, notwithstanding any other provision of law, the court may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the crime constituting the violation of the probation.

Mancille c. Hampton, 266 Ga. 857 (471 SE2d 872) (1996), unlike Gearinger, involved both the violation of a special condition and the commission of a felony. The Supreme Court held that the revocation court could deal with the probationer as having either violated a special condition or committed a felony, under OCGA § 42-8-34.1 (c).

This case does not involve the application of OCGA § 42-8-34.1 (c), but rather OCGA § 42-8-34.1 (b).

Lawrence, supra, involved a violation of a special condition of probation imposed pursuant to OCGA § 42-8-34.1 (d), and thus no two-year limit applied. This subsection states:

Decided July 16, 1999

Dennis C. O’Brien, for appellant.

Patrick H. Head, District Attorney, Debra H Bernes, Nancy I. Jordan, Bruce D. Hornbuckle, Assistant District Attorneys, for appel-lee.

The payment of restitution or reparation, costs, or fines ordered by the court may be payable in one lump sum or in periodic payments, as determined by the court after consideration of all the facts and circumstances of the case and of the defendant’s ability to pay. Such payments shall, in the discretion of the sentencing judge, be made either to the clerk of the sentencing court or, if the sentencing court is a probate court, state court, or superior court, to the probation office serving said court.

The majority argues that, although fines may be ordered by a court pursuant to OCGA § 42-8-34.1 (d), fines cannot be imposed by that same section. I cannot agree with this position, as it fails to appreciate the mandate of OCGA § 42-8-34.1 (b) which, as discussed above, allows a court, at any revocation hearing, to impose alternatives to confinement it deems appropriate. The use of fines would fall under this rubric, as would other special conditions of probation. OCGA § 42-8-34.1 does allow the imposition of fines or other special conditions of probation.

In Dunlap, supra, the defendant violated a special condition of probation requiring his banishment from certain areas which had not been imposed at a revocation hearing, and no new felony offense was involved. Thus, that condition had not been imposed pursuant to OCGA § 42-8-34.1, and only two years of his probation could be revoked.

For the above reasons, I disagree with the analysis of the majority, and see no basis to overrule the cited cases.

I am authorized to state that Judge Eldridge joins in this opinion.

       The trial court also found that Glover violated three general conditions of his probation by failing to report to his probation officer, moving without notifying his probation officer, and failing to work faithfully at suitable employment.

       The special concurrence emphasizes that the defendant in Gearinger was “remanded to a detention center” following the modification of his probation. Gearinger does not state, however, that this detention center was a probation detention center of the sort contemplated by OCGA §§ 42-8-34.1 (b) and 42-8-35.4.

       We note that one judge wrote a special concurrence in Lawrence. However, the special concurrence specifically states that it agrees with the majority’s analysis of the error made by the trial court and disagrees only with the direction to the trial court on remand. Lawrence, supra at 748 (Smith, J., concurring specially). To the extent that Lawrence constitutes binding precedent on this issue, it must be overruled. See Court of Appeals Rule 33 (a).

         The special concurrence states that there is no evidence Glover is currently being held in a penitentiary. However, nowhere in its brief does the State contradict Glover’s factual statement that he is currently being so incarcerated. Accordingly, pursuant to Court of Appeals Rule 27 (b) (1), “appellant’s statement of facts may be acepted by this Court as true.” Moreover, on June 30, 1998, the trial court entered an order stating that “[i]t has been represented to the Court that [Glover] is serving a sentence of confinement at the Phillips State Prison in Buford, Georgia” and directing that Glover be produced for a hearing.

       The special concurrence states that “Glover contends that the court’s otherwise proper ten-year revocation is now ‘illegal,’ because he is no longer serving it in an ‘alternative to confinement.’ ” However, nowhere in his appellate brief does Glover assert that the trial court’s,ten-year revocation was “otherwise proper” or that it became illegal only upon his transfer to a state correctional facility.

       Only Glover, in his brief, has made such statement. However, the Georgia DOC sent a letter to the Clerk of the Cobb County Superior Court stating the DOC was “unable to assume custody of [Glover],” because OCGA § 17-10-1 (a) (3) (A) requires service of this case in a community corrections (probation) facility or in a county jail.


author: Eldridge, Judge. Pope, Presiding Judge,

text:
    A99A0390.
    WILSON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (520 SE2d 917)
   Eldridge, Judge.

Diane Wilson sued Sonia Strong, an uninsured motorist, for injuries allegedly sustained in a motor vehicle collision. Wilson timely served a copy of the complaint on her uninsured motorist carrier, State Farm Mutual Automobile Insurance Company (“State Farm”), but was never able to perfect personal service on Strong, because Strong was avoiding service. Wilson obtained a court order after a showing of diligence and of concealment to avoid service, allowing service by publication. State Farm answered in its own name and moved to set aside the order for service by publication and to dismiss the lawsuit on the grounds that Wilson had not acted diligently in attempting to personally serve Strong. Another trial court judge granted the motions vacating the order of publication and dismissing the case for lack of diligence in personally serving Strong. Wilson appeals.

The collision between Wilson and Strong occurred on December 8, 1994. On December 6, 1996, Wilson filed her complaint. On December 10, 1996, the marshal’s office issued its entry of service, notifying Wilson that service had not been perfected on Strong, because she did not live at the Atlanta, Fulton County service address in the complaint. The record shows that Wilson hired a private investigator to locate Strong and that the investigation revealed that Strong resided at 781 Heritage Oaks Drive, Stone Mountain, DeKalb County, where she received her AFDC checks and other correspondence. Deputy Marshall H. King, State Court of DeKalb County, between January 1, 1997 and March 13, 1997, made numerous attempts to serve Strong or have her contact him with no success according to the affidavit of Wilson’s lawyer. On March 18, 1997, the private investigator was appointed as a special process server and attempted service unsuccessfully on March 18, March 19, and twice on March 20, 1997. On March 22, 1997, the investigator-process server returned to serve Strong and encountered a uniformed Fulton County Deputy Sheriff, who told him that the deputy was there for an expected visit with Strong’s mother and that Strong lived there. They went to the door together, but no one would come to the door, even though the deputy was expected. On May 8,1997, the investigator-process server gave an affidavit that set out all of his attempts to personally serve Strong and that, in his opinion, she was deliberately concealing herself to avoid service. On May 16, 1997, Wilson moved for an order for service by publication, showing the exercise of diligence to personally serve Strong and that she was hiding to avoid service. On May 16, 1997, the order for publication was granted.

Wilson’s sole enumeration of error was that the trial court erred in granting State Farm’s motion to set aside the order for publication and dismissing the case. We agree.

The trial court’s ruling was contrary to OCGA § 33-7-11 (e), which expressly authorizes service by publication upon known uninsured motorists who leave the state, cannot be served, or hide to avoid service. The trial court committed plain legal error in setting aside the order for service by publication and dismissing the case as to both the uninsured motorist Strong and the uninsured motorist carrier State Farm, because the trial court applied the wrong legal standard of diligence for service by publication for purposes of obtaining a nominal judgment to satisfy the condition precedent for the uninsured motorist statute and for the insurer to be liable under the statute. OCGA § 33-7-11 (e).

Service by publication is necessary on a known but unlocatable uninsured motorist to satisfy the condition precedent of a nominal judgment under OCGA § 33-7-11 (d) before the uninsured motorist carrier may be liable under the insured’s contract and the uninsured motorist statute. Smith v. Commercial Union Assur. Co., 246 Ga. 50, 51-52 (268 SE2d 632) (1980); Wentworth v. Fireman’s &c. Ins. Cos., 147 Ga. App. 854, 855 (250 SE2d 543) (1978); Norman v. Daniels, 142 Ga. App. 456 (236 SE2d 121) (1977). The nominal judgment is subject to collateral attack by the uninsured motorist at any time, because he or she has never been personally served. Norman, supra at 458. However, such nominal judgment is sufficient for the insured to satisfy the judgment from the uninsured motorist provisions of the insurer’s liability policy.

OCGA § 33-7-11 (e)

“permitting service by publication does not require a showing that service has been attempted but only that the party to be served ‘has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons. . . .’ OCGA § 9-11-4 (e) (1) (A). Moreover, by granting the order permitting service by publication the trial court, in effect, made a finding of due diligence. See Starr v. Wimbush, 201 Ga. App. 280 (2) (410 SE2d 776) (1991).”

Douglas v. Woon, 205 Ga. App. 355, 356 (1) (422 SE2d 61) (1992). Accord Bailey v. Lawrence, 235 Ga. App. 73, 76 (2) (508 SE2d 450) (1998); General Accident Ins. Co. v. Straws, 220 Ga. App. 496, 497 (1) (472 SE2d 312) (1996); Kannady v. State Farm &c. Ins. Co., 214 Ga. App. 492, 494-495 (4) (448 SE2d 374) (1994).

In this case, for purposes of setting aside the service by publication, the trial court looked to the record of the attempts to diligently serve Strong as soon as possible for personal jurisdiction, which standard applies to the relation back of service made after the running of the statute of limitation and mistakenly relied upon cases under such legal standard; however, Strong was never personally served so there was no service to relate back to the time of filing the action prior to the statute of limitation attaching and no personal jurisdiction for purposes of an enforceable personal judgment. Therefore, such cases on laches for relation back have no application to this case, because they deal with service for personal jurisdiction and not with obtaining a nominal judgment after service by publication as to the uninsured motorist carrier only. See Ga. Farm &c. Ins. Co. v. Kil-gore, 265 Ga. 836 (462 SE2d 713) (1995); Winters v. Goins, 235 Ga. App. 558, 560 (2) (509 SE2d 361) (1998); Wade v. Whalen, 232 Ga. App. 765 (1) (504 SE2d 456) (1998). Since Strong was an uninsured motorist who could not be located with due diligence, then the correct legal standard for due diligence for service by publication under OCGA § 33-7-11 (e) was diligence in determining that Strong was either out of state or avoiding service and not the standard of diligence for relation back of personal service obtained after the statute of limitation has run and the plaintiff seeks to have dilatory service relate back to the time of filing. See Douglas, supra at 356. See also Bailey, supra at 76-78 (2). Thus, the wrong standard of diligence was used by the trial court.

The record shows substantial, repeated, and prolonged efforts not only to locate Strong but also to serve her as soon as possible; a finding of due diligence under OCGA § 33-7-11 (e) was mandated under the facts of this case. Wentworth, supra at 855. Such evidence demonstrated due diligence in determining that Strong was avoiding service within the meaning of OCGA § 33-7-11 (e). The first trial court judge believed that due diligence had been demonstrated and issued the order for service by publication.

“ ‘Even though service by publication is insufficient to confer in personam jurisdiction over defendant, by granting the order permitting service by publication the trial court, in effect, made a finding of due diligence. Thus, as of the date of the order granting the request for service by publication, the trial court found the plaintiff had been diligent in the attempt to locate defendant.’ (Citations and punctuation omitted.) Smith v. Johnson, 209 Ga. App. 305, 306 (433 SE2d 404) (1993).”

Winters, supra at 560 (2). The vacating of the order of publication by the second judge, based upon the application of the wrong legal standard of diligence and without evidence to support such action or legal basis, demonstrated arbitrary and capricious conduct in the exercise of his discretion by the trial court. Norman, supra at 460-461.

Thus, the wrong legal standard for diligence was used to vacate the order of publication and to grant dismissal. See Douglas, supra at 356. When the trial court exercised its discretion under a mistaken standard of law, this constituted plain legal error. See Glover v. Ware, 236 Ga. App. 40, 45 (3) (510 SE2d 895) (1999). If a trial court exercises its sound discretion under a mistaken legal standard, then the court is deprived of discretion by the mistake of law. Therefore, the legally flawed exercise of discretion is the same as refusal to exercise any discretion, which is a manifest abuse of discretion. See generally Flanagan v. State, 218 Ga. App. 598, 600-601 (462 SE2d 469) (1995); Jones v. State, 208 Ga. App. 472, 473 (431 SE2d 136) (1993); Cotting-ham v. State, 206 Ga. App. 197,199 (3) (424 SE2d 794) (1992). Under either standard of review, the trial court’s setting aside of the order of publication and the dismissal of the case must be reversed.

It is true that because [Strong] has not been personally served, in personam jurisdiction may not be obtained against [Strong] and therefore no judgment may be recovered from [her] personally or [her insurer, if she had one]. See Smith v. Commercial Union Assur. Co., 246 Ga. 50 (268 SE2d 632) (1980). Nevertheless, a judgment against [Strong] may be recovered from plaintiffs’ uninsured motorist insurer because [she] is, in essence, an uninsured motorist. Id. See also Bell v. Bennett, 189 Ga. App. 423 (375 SE2d 884) (1988); Wentworth v. Fireman’s Fund &c. Cos., [supra]; Norman v. Daniels, [supra].

Douglas, supra at 356.

Judgment reversed.

Johnson, C. J., Blackburn, P. J., Barnes and Ellington, JJ, concur. Pope, P. J., and Smith, J., dissent.

Pope, Presiding Judge,

dissenting.

I respectfully dissent. From the time of the order for service by publication until the court’s dismissal order ten months later, the record shows no effort by Wilson to locate Strong. This case presents the question of whether, in order to retain her right to pursue a claim against her uninsured motorist carrier, a plaintiff must remain diligent in attempting to personally serve the alleged tortfeasor despite service by publication when the defendant is known but cannot be found.

A known motorist is deemed uninsured when he cannot be personally served. Smith v. Commercial Union Assur. Co., 246 Ga. 50, 52 (268 SE2d 632) (1980). Though the motorist cannot be served, the injured party must reduce her claim against the motorist to a judgment in order to establish the amount she is legally entitled to recover from the uninsured motorist carrier. Boles v. Hamrick, 194 Ga. App. 595, 596 (391 SE2d 418) (1990). Accord Wilkinson v. Vigilant Ins. Co., 236 Ga. 456 (1) (224 SE2d 167) (1976). Under these circumstances, OCGA § 33-7-11 (e) of the uninsured motorist statute allows service by publication upon a showing of due diligence. Commercial Union, 246 Ga. at 52. When the trial court granted Wilson’s request for service by publication, it necessarily found that Wilson exercised due diligence in seeking publication up to that point in time. See Winters v. Goins, 235 Ga. App. 558, 560 (2) (509 SE2d 361) (1998).

Although service by publication on an uninsured motorist is ineffective to establish in personam jurisdiction necessary to support an enforceable judgment against the motorist, Commercial Union, 246 Ga. at 50; Smith v. Johnson, 209 Ga. App. 305, 306 (1) (433 SE2d 404) (1993), it does satisfy a condition precedent for recovery against the uninsured motorist carrier. Wentworth v. Fireman’s &c. Ins. Cos., 147 Ga. App. 854, 855 (I) (250 SE2d 543) (1978). Once service by publication is made, the plaintiff is free to pursue a nominal claim against the defendant in an attempt to obtain a nominal judgment which will establish the uninsured carrier’s liability. See State Farm &c. Ins. Co. v. Noble, 208 Ga. App. 518, 519, n. 1 (430 SE2d 804) (1993). The uninsured motorist provider can answer in its own name, become a party to the litigation, and contest issues of liability, damages and coverage. OCGA § 33-7-11 (d) and (e). Although effective against the carrier, any judgment obtained in this situation is ineffective against the individual defendant. Commercial Union, 246 Ga. at 50.

Here, the trial court, acting through a different judge than the one who authorized service by publication, set aside the order allowing publication and dismissed the case. Pretermitting whether the trial court should have set aside the order to publish, Wilson was required to remain diligent attempting to personally serve Strong, despite service by publication under OCGA § 33-7-11 (e). See Thomas v. Passenger, 211 Ga. App. 640, 642 (440 SE2d 228) (1993) (plaintiff made no showing as to diligence after service by publication). See also Starr v. Wimbush, 201 Ga. App. 280, 282 (2) (410 SE2d 776) (1991) (plaintiff took several additional steps to locate defendant after service by publication).

This is so because, first, although the uninsured motorist statute provides for service by publication, it does not eliminate the plaintiff’s obligation to serve the defendant as in all tort actions. See OCGA § 33-7-11. And, as shown above, service by publication under OCGA § 33-7-11 is ineffective against the defendant.

Second, the policy underlying the uninsured motorist statute is supported by requiring continued due diligence attempting to serve the defendant. “Uninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose. [Cits.]” Commercial Union, 246 Ga. at 51. “The underlying purpose of uninsured motorist legislation [is] the protection of innocent victims from the negligence of irresponsible drivers. . . .” Terry v. State Farm &c. Ins. Co., 269 Ga. 777, 778 (1) (504 SE2d 194) (1998). But given this protection, the uninsured carrier has certain rights as well.

OCGA § 33-7-11 (f) provides that an insurer paying an uninsured claim is “subrogated to the rights of the insured to whom the claim was paid against the person causing [the injury]. . . .” If a defendant who is known but cannot be served turns up after an insurer has paid a claim, the defendant could still assert the defense of lack of service of process and failure to diligently serve and, if successful, thereby defeat the insurer’s subrogation claim. If the insured is not bound to continue to diligently pursue service, the insurer’s subrogation claim will be lost. Under the majority opinion, the uninsured carrier presumably now has the burden of attempting to diligently serve the uninsured motorist in order to protect its right to subrogation.

Third, the defendant tortfeasor may show up before entry of a nominal judgment and assert that the plaintiff has failed to diligently attempt to serve him. If true, the defendant will be dismissed from the case. Under these circumstances, the uninsured motorist carrier must be dismissed as well because a judgment, whether real or nominal, must be obtained against the uninsured motorist as a condition precedent to recovery against the uninsured motorist carrier. Noble, 208 Ga. App. at 520-521; Walker v. Ga. Farm &c. Ins. Co., 207 Ga. App. 874, 876 (2) (429 SE2d 289) (1993). The plaintiff must remain diligent attempting to serve the defendant in order to prevent the defendant from being dismissed on these grounds.

Decided July 16, 1999.

Franklin & Hubbard, Curtis L. Hubbard, Jr., for appellant.

Sharon W. Ware & Associates, Sharon W. Ware, Joanne B. Brown, for appellee.

Fairness is also promoted because if the defendant can eventually be served after diligent pursuit and before entry of a nominal judgment, the defendant becomes a party, the claims against him or her relate back to the time of filing, and it may turn out that the defendant is insured after all. The intent of the General Assembly in providing for service by publication to permit a nominal judgment is not defeated. The service is effective to support a nominal judgment which the plaintiff must proceed to obtain. However, in the meantime, the plaintiff must remain diligent in attempting to serve the defendant.

In this case, because State Farm answered, it became a party, Hulsey v. Standard Guar. Ins. Co., 195 Ga. App. 803, 804 (395 SE2d 282) (1990), and it was therefore allowed to assert any defenses which would be available to the defendant. Milburn v. Nationwide Ins. Co., 228 Ga. App. 398, 399 (1) (491 SE2d 848) (1997). Thus it was authorized to assert that Wilson was not diligent in attempting to personally serve Strong.

Wilson failed to show diligence in attempting to serve Strong after service by publication and failed to show that her initial efforts to locate Strong were sufficient to obviate the need for further effort. Therefore, Wilson has not met her burden of showing lack of fault for her failure to perfect timely service. See Bailey v. Lawrence, 235 Ga. App. 73, 77 (2) (508 SE2d 450) (1998). I would uphold the trial court’s dismissal on the grounds that Wilson did not show due diligence in attempting to serve Strong. See Sykes v. Springer, 220 Ga. App. 388, 389-390 (1) (469 SE2d 472) (1996).

I am authorized to state that Judge Smith joins in this dissent.

       Service by publication on a known motorist who cannot be served was allowed in 1972 by an amendment to the uninsured motorist statute because the condition precedent of obtaining a judgment against the motorist could not be met without personal service. Ga. L. 1972, p. 882, § 1; see State Farm. &e. Ins. Co. v. Noble, 208 Ga. App. 518, 519 (430 SE2d 804) (1993).

       The court’s finding was only that Wilson was diligent in seeking service by publication under OCGA § 33-7-11 (e), which does not necessarily require a showing of any attempted personal service. See Douglas v. Woon, 205 Ga. App. 355, 356 (1) (422 SE2d 61) (1992). Subsection (e) allows service by publication on any of four independent grounds: that the person (1) “resides out of the state,” (2) “has departed from the state,” (3) “cannot after due diligence be found within the state,” or (4) “conceals himself to avoid the service of summons.” OCGA § 33-7-11 (e). The trial court in this case granted the motion for publication on the grounds that “defendant cannot be found within the state, and further that defendant has concealed herself to avoid service.” At most, the order for service by publication in this case amounts to a finding that Wilson was diligent in determining that Strong could not be found in Georgia and was concealing herself.

       But see McDade v. McDade, 263 Ga. 456, 457 (2) (435 SE2d 24) (1993) (service by publication effective when reasonable diligence has been exercised in attempting to ascertain whereabouts of known defendant); Robinson v. Robinson, 260 Ga. 731, 732 (399 SE2d 64) (1991) (same); Abba Gana a Abba Gana, 251 Ga. 340, 343 (1) (304 SE2d 909) (1983) (same); Melton v. Johnson, 242 Ga. 400, 403-404 (249 SE2d 82) (1978) (service by publication effective to support in personam judgment against a Georgia resident where state and federal concepts of due process have not been violated).