author: Adams, Judge.

text:
    A11A0465.
    STRICKLAND v. LEAKE.
    (715 SE2d 676)
   Adams, Judge.

Gene Strickland, d/b/a Ace Home Inspectors, appeals the entry of a default judgment in favor of Toni Leake. For the reasons set forth below, we reverse the default judgment entered against him in the amount of $15,000.

On September 8, 2008, Toni Leake filed a summons and pro se small claims complaint naming both Bob Jacobazzi, d/b/a Home Systems Inspections, and Gene Strickland, d/b/a Ace Home Inspectors, as defendants. In the body of the complaint form, Leake named only Jacobazzi as the defendant but listed two separate addresses, the first of which is reflected on the summons for Jacobazzi and the second of which is the address listed for Strickland on a later summons. Leake’s handwritten statement of claim on the back of the form alleges that both Jacobazzi and Strickland conducted an inspection of a house Leake planned to purchase, and the resulting report (apparently prepared by Jacobazzi) failed to disclose that the wiring in the house was dangerous and not properly grounded. The summons filed with that complaint lists only Jacobazzi and reflects that he was personally served on September 12, 2008.

Jacobazzi filed a response on September 15, 2008, but the trial court subsequently issued a judgment against him in the amount of $15,000 after he apparently failed to appear at the scheduled trial. Jacobazzi immediately moved to set aside the judgment on the ground that he received no notice of the scheduled trial date, and the trial court later granted the motion.

It appears that Leake filed an exact duplicate of the original complaint along with a summons for both Jacobazzi and Strickland on December 12, 2008. That copy was filed under the same case number as the original complaint. The summons reflects that Strickland was served on December 17, 2008 by leaving a copy of the summons and complaint at his residence. Strickland did not respond to this complaint, and the trial court issued a writ of fieri facias (“fi. fa.”) reflecting a $15,000 judgment against him on February 3, 2009. Strickland subsequently moved to set aside that “judgment” asserting that the trial court lacked jurisdiction over him because Leake failed to file a motion to add him as a party to the original suit pursuant to OCGA § 9-11-21. The trial court found that Leake’s December 12, 2008 filing was an amendment to name Strickland as a party and that Leake should have filed a motion to obtain leave of court to add a defendant. The trial court concluded, however, that Strickland waived this argument because he failed to raise it in a timely fashion after being properly served with the complaint, and the court denied the motion to set aside. Strickland appealed the denial of his motion to this Court, but because he failed to follow the proper procedure for discretionary review, his appeal was dismissed on March 24, 2010.

Strickland subsequently filed a motion for an order declaring the February 3, 2009 fi. fa. to be null and void and to dismiss the complaint on the ground that the trial court never issued a default judgment against him, but instead simply issued the fi. fa. Following a hearing, the trial court issued an order on June 7, 2010, concluding that Strickland was estopped from denying the existence of the judgment because of his prior in judicio admissions in his motion to set aside the $15,000 “judgment” entered against him. The trial court further found that Strickland was estopped by these admissions from requesting a hearing on the amount of Leake’s damages. Nevertheless, the court found that the February 3, 2009 fi. fa. was issued in error and was thus null and void because no judgment had been entered, and the order directed the clerk to cancel the fi. fa. as of record. The trial court then entered judgment against Strickland in the amount of $15,000, plus court costs.

Strickland appealed the June 7, 2010 order on June 22, 2010, but this Court determined that the June 7 order was not final because Jacobazzi remained a nominal party, and thus the appeal was dismissed on the ground that Strickland failed to follow the proper procedure for interlocutory appellate review. Following the remand of the case from this Court to the trial court, Strickland filed a motion to reconsider the default judgment on August 12, 2010, but the record contains no ruling on the merits of that motion. Subsequently, on September 14, 2010, the trial court issued an order finding that Leake had orally dismissed her claims against Jacobazzi at a hearing on April 9, 2009, although no written order of dismissal was entered at that time. The trial court’s September 14, 2010 order formally dismissed the claims against Jacobazzi. Accordingly, with the entry of that order, the June 7, 2010 order became a de facto final judgment, and Strickland filed this appeal on October 7, 2010.

Under the circumstances of this case, we review the trial court’s entry of the default judgment for an abuse of discretion. Heath v. Beech, 300 Ga. App. 756 (1) (686 SE2d 283) (2009). Compare GMC Group v. Harsco Corp., 304 Ga. App. 182 (695 SE2d 702) (2010) (where only issue on appeal from default judgment was an issue of law, the appellate court conducts a de novo review and applies a “plain legal error” standard of review).

1. Strickland asserts that the trial court erred in entering the June 7, 2010 default judgment because Strickland was never a party to the case due to Leake’s failure to file a motion to add him as a party as required under OCGA § 9-11-21. In addition, he contends that he was not in default because even if the amendment was sufficient to add him as a party defendant, he would not be required to file an answer unless ordered to do so by the court. Rather, he asserts that the allegations in Leake’s complaint stood denied as a matter of law. The trial court found that Strickland had waived any argument under OCGA § 9-11-21 because he failed to raise it in a timely fashion. But even if Strickland had properly preserved the argument, we find it to be without merit.

The caption of Leake’s complaint, first filed September 8, 2008, named both Jacobazzi and Strickland as defendants, and even though only Jacobazzi was identified by name as a defendant in the body of the complaint form, the addresses of both Jacobazzi and Strickland were listed there. Moreover, the handwritten statement of complaint contained allegations concerning both Jacobazzi and Strickland. Nevertheless, the clerk issued a summons only for Jacobazzi as of the date of the original complaint.

Under OCGA § 9-11-4 (a), the clerk of the municipal court was required to issue a summons at the time the complaint was filed, but under OCGA § 9-11-4 (e), the plaintiff is required to furnish the clerk of the court “with such copies [of the summons and complaint] as are necessary.” Here either Leake and/or the clerk failed to include Strickland’s name on the summons issued in September 2008, but that omission does not render the filing of the action against him defective. Cf. Flateau v. Reinhardt, Whitley & Wilmot, 220 Ga. App. 188, 192 (3) (c) (469 SE2d 222) (1996) (fact that the court did not issue a summons requiring the defendant’s appearance at a hearing does not render the petition for writ of possession defective). OCGA § 9-11-4 (a) provides that upon request, a plaintiff may obtain separate or additional summons against any defendants. Leake obtained a summons against Strickland three months later on December 12, 2008 when she filed a duplicate of the complaint, and service was effected upon Strickland five days later. Thus, the new summons may have perfected the filing of Leake’s action against Strickland and allowed for him to be served, but the absence of a summons for Strickland at the time of the original filing does not change the fact that he was named as a defendant in the original suit.

Under these circumstances, even if the filing of a duplicate complaint could be considered an amendment, it was not an amendment adding Strickland as a party to the lawsuit because he was named a defendant in the original filing. At most, the December 12 filing was a vehicle for obtaining a summons for Strickland. Thus, the trial court erred in concluding that this filing was an amendment to add a new party requiring Leake to file a motion under OCGA § 9-11-21.

And although service on Strickland should have been effected within five days of filing the original complaint under OCGA § 9-11-4 (c), the statute explicitly states that “failure to make service within the five-day period will not invalidate a later service.” Indeed, this five-day requirement generally only becomes relevant “in cases where service is completed outside the applicable statute of limitation.” (Citation omitted.) Dyer v. Paffenroth, 197 Ga. App. 888, 890 (1) (399 SE2d 710) (1990). No statute of limitation issue has been raised in this case, and the trial court found that personal service was perfected upon Strickland on December 17, 2008. Accordingly, the trial court had jurisdiction over Strickland, and he was required under OCGA § 9-11-12 (a) to file an answer to Leake’s complaint within 30 days. Because he failed to do so, Strickland was in default.

2. Strickland argues, however, that the trial court erred in entering a default judgment in the amount of $15,000 without holding an evidentiary hearing because Leake’s damages were un-liquidated, and she was required to prove the amount of her damages.

Under OCGA § 9-11-55 (a), to obtain a default judgment where the claim is “one ex delicto or involves unliquidated damages, . . . the plaintiff shall be required to introduce evidence and establish the amount of damages.” Leake asserts that Jacobazzi and Strickland failed to reveal the electrical problems in her house following their inspection. It is unclear whether she was asserting a claim for breach of contract or negligence, but it is apparent that her damages are unliquidated. And other than her prayer in her complaint for $15,000 plus interest, Leake has made no showing of the amount of her damages.

[Leake’s] failure to prove [her] damages constitutes a non-amendable defect within the meaning of OCGA § 9-11-60 (d) (3). If an action involves unliquidated damages, then the court may not enter a default judgment for the plaintiff unless the plaintiff introduces evidence and establishes the amount of damages. OCGA § 9-11-55 (a); [cits.].

(Footnote omitted.) GMC Group v. Harsco Corp., 304 Ga. App. at 183-184 (2). See also Hazlett & Hancock Constr. Co. v. Virgil Womack Constr. Co., 181 Ga. App. 25, 26-28 (2) (351 SE2d 218) (1986).

Accordingly, we reverse the trial court’s entry of a default judgment in the amount of $15,000 against Strickland.

Judgment reversed.

Barnes, P. J., concurs. Blackwell, J., concurs in judgment only.

On Motion for Reconsideration.

Appellant Gene Strickland argues on motion for reconsideration that this Court incorrectly found that he was a named defendant in the original small claims complaint filed September 8, 2008. In making this argument, Strickland suggests that the trial court erred in compiling the appellate record and provided this Court with the wrong copy of the original complaint. He has also filed a motion to supplement the record with the complaints filed on September 8, 2008 and December 12, 2008, as well as an October 2, 2008 docket call listing Jacobazzi as defendant.

But the appellate record furnished by the trial court already contains a copy of a small claims complaint filed by Toni Leake, pro se, with a date stamp indicating that it was filed September 8, 2008. That complaint, as noted in our opinion, lists Strickland in the heading as a defendant and lists his address in the body of the complaint; although it does not list him as a defendant in the form portion of the body, the reverse side contains handwritten allegations regarding Strickland. The summons served on Jacobazzi is also dated September 8, 2008. The record additionally contains what appears to be an identical copy of that complaint with a date stamp indicating a filing date of December 12, 2008. Therefore, it appears that the December 12 complaint, which is not designated as an amendment, contained no allegations, against Strickland or otherwise, that were not already asserted in the September 8 complaint. The only thing amended and designated as “amended” was the summons, which apparently was altered by Leake in order to obtain service on Strickland. No other complaints are contained in the record. We note that appellant’s notice of appeal directed the clerk of the superior court to “omit nothing from the record on appeal” and the record before us has been certified to be a “true and correct copy of the original proceeding as the same appears from the records and minutes of said court” in this case. See OCGA § 5-6-43 (a) (“it shall be the duty of the clerk of the trial court to prepare a complete copy of the entire record of the case, omitting only those things designated for omission by the appellant and which were not designated for inclusion by the appellee”). Accordingly, we must assume that the record before us represents an accurate copy of the record below, unless shown otherwise.

To the extent that the record is somehow incorrect, we note that Strickland, as appellant, bore the burden of ensuring an accurate and complete record on appeal. “In order for an appellate court to make a determination about the correctness of a judgment at issue, it is the appellant’s duty to include in the record on appeal the items necessary for the appellate court to objectively review the evidence and proceedings giving rise to the judgment.” (Citations omitted.) Cuyler v. Capital One Bank (USA), 304 Ga. App. 687, 688 (1) (698 SE2d 14) (2010). Here, Strickland waited until after this Court issued its opinion to move to supplement the record and provided no evidence or documentation to overcome the trial court clerk’s certification that the record was accurate. This is not a case where something was omitted from the record; rather, Strickland is suggesting that the date-stamped copy of the September 8 complaint is not an accurate copy of the complaint actually filed by Leake that day. Although generally this Court will not consider anything outside the record in issuing a decision on the merits of an appeal, Strickland bore the burden on his motion of demonstrating that the record is inaccurate. Strickland failed, however, to provide either a copy of the complaint he contends was filed by Leake on September 8 or any other proof to support his motion.

Decided June 24, 2011

Reconsideration denied July 29, 2011.

F. Houser Pugh, for appellant.

William J. Mason, for appellee.

Because the record already contains complaints with date stamps showing they were filed on September 8 and December 12, 2008, and we have no evidence to suggest that these are not accurate copies of these filings, we deny Strickland’s motion to supplement the record. And even though Strickland notes that the parties and the courts have previously referred to the December 12 filing as an amendment, or even an amendment to add a party, those references do not alter the fact that Strickland was named as party in the September complaint and it appears that no changes or additions were made to the complaint re-filed on December 12 and served on Strickland on December 17, 2008. Accordingly, we deny Strickland’s motion for reconsideration.

Motion for reconsideration denied.

       The Municipal Court of Columbus is a court of record in this State, and as such, the provisions of the Georgia Civil Practice Act, OCGA § 9-11-1 et seq., generally apply to its proceedings. Lee v. G. A. C. Finance Corp., 130 Ga. App. 44, 45 (1), (2) (202 SE2d 221) (1973).

       Accordingly, we need not address Strickland’s enumeration of error regarding the denial of his motion to set aside a supposed February 3, 2009 default judgment, as no such judgment was ever issued and the trial court declared the fi. fa. of that date to be null and void.

       Even if the failure to prepare a summons for Strickland at the time of the original complaint could be considered a defect in service or in process, Strickland waived any such claim by failing to raise it in a timely fashion at the time his responsive pleadings were due. See OCGA § 9-11-12 (a), (b), (h) (1). See also White v. Johnson, 151 Ga. App. 345, 347-348 (1) (259 SE2d 731) (1979).

       Contrary to the trial court’s conclusion, Strickland’s efforts to set aside the nonexistent February 3, 2009 judgment in the amount of $15,000 do not constitute an in judicio admission as to the amount of Leake’s damages. Strickland may have concluded that the trial court had entered a $15,000 judgment against him in light of the fact that it issued a fi. fa. in that amount, but conclusions in pleadings or other filings do not constitute admissions in judicio. McReynolds v. Krebs, 307 Ga. App. 330, 335 (2) (705 SE2d 214) (2010). Moreover, even if Strickland’s filings could be construed as an admission that a $15,000 judgment had been entered against him on February 3, 2009, that does not constitute a further admission that $15,000 was a proper measure of Leake’s damages.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A11A0565.
    GOTTSCHALK v. GOTTSCHALK.
    (715 SE2d 715)
   BARNES, Presiding Judge.

Dean Mark Gottschalk appeals the trial court’s order modifying the terms of his visitation with his two children. He also appeals more than a dozen other orders entered during the course of this litigation. For the reasons that follow, we affirm.

The record contains many motions, hearing transcripts, and orders. The index lists 227 documents, including at least eight contempt petitions. Due to the size of the record, the number of orders being reviewed, and the importance of the case to the parties, this court granted the appellant’s motion to file a brief of 50 pages rather than 30, and he has enumerated 17 errors. We have undertaken a thorough review of each pleading and transcript in the 15-volume record, as well as each of the trial court’s orders. The trial court has explained the reasoning behind its actions, either orally during hearings or in its written orders, all of which are fact-intensive. Although we have carefully considered each of the appellant’s enumerations and the responses of appellee Karen Ann Gottschalk, we will not restate all of the bases for each of the trial court’s rulings being appealed.

[T]he law recognizes that because children are not immutable objects but living beings who mature and develop in unforeseeable directions, the initial award of custody may not always remain the selection that promotes the best interests of the child. While we recognize that visitation rights (even extensive visitation rights) do not constitute custody, visitation rights are a part of custody and changes in one parent’s visitation rights necessarily affect the custodial rights of the other parent. Material changes in one parent’s visitation rights also necessarily implicate the best interests of the child because visitation controls the child’s contact with the non-custodial parent. Children do not understand or care about the legal niceties the courts draw between visitation and custody: it is the child’s contact with the parent that impacts the child’s best interests, not whether that contact occurs under the label of visitation or custody. Material changes in the amount of contact with a parent affect a child’s best interests regardless whether that parent is the custodial or non-custodial parent.

(Citations and punctuation omitted.) Dellinger v. Dellinger, 278 Ga. 732, 733 (1) (609 SE2d 331) (2004). In reviewing the correctness of rulings in visitation cases, “we do not substitute our judgment on the evidence for that of the trial judge. It is our duty to affirm unless there is an abuse of discretion in the trial court, and we find none here.” Homans v. Street, 237 Ga. 649 (229 SE2d 432) (1976).

The parties were divorced in March 2005, and consented to joint legal and physical custody of their two minor children, with primary physical custody and decision-making with the appellee. The final divorce decree provided that the parents were to consult and “consider each other’s input” on all major decisions involving the children, and to inform each other of the children’s whereabouts and extracurricular activities. The decree also included very detailed visitation provisions, giving the appellant visitation every other weekend, every Wednesday afternoon, and alternating holidays. In April 2006, a little more than a year after the divorce, the appellee filed a petition seeking to modify the terms of the appellant’s visitation so that it would be supervised. She also sought an order requiring the appellant to undergo psychological evaluation.

In response, the appellant admitted having been arrested and denied having a history of violence. He also counterclaimed, seeking a psychological evaluation of the appellee and a contempt citation against her for failing “to consider [his] input with respect to all major decisions” involving the children, among other things. In June 2006, the trial court appointed a guardian ad litem to represent the minor children.

In October 2006, the trial court issued an order to which the parties and guardian consented, appointing Sherri Siegel, Ph.D., as the custody evaluator. The court ordered the parties to cooperate with Dr. Siegel’s requests and execute releases to allow Dr. Siegel to discuss her findings with the guardian. The order further provided:

Upon the completion of the custody evaluation, Dr. Siegel will forward a written report to the Court, to counsel for the parties, and to the Guardian ad Litem. The parties shall be entitled to review the written report. The Court hereby ORDERS, however, that any unauthorized distribution of the contents of Dr. Siegel’s report by a party or by counsel to any person shall be subject to sanctions, including a finding of contempt by the Court. Furthermore, if Dr. Siegel’s report is filed, it shall be filed under seal by the Clerk of Court.

The trial court issued two more orders relating to Dr. Siegel’s custody evaluation report, one in April 2007 authorizing the appellant’s attorney to release a copy to the appellant’s psychologist, Emmett Fuller, and one in May 2007 authorizing the appellee’s attorney to release a copy to the children’s psychologist. The last sentence of both orders provided that “[n]o further release of this report is authorized or granted by this Court and the parties and their respective counsel are hereby instructed to strictly adhere to the conditions set forth” in the October 2006 order appointing the custody evaluator.

Meanwhile, in December 2006, the appellee filed a petition for contempt against the appellant, contending that he had refused to participate in or pay his share of the court-ordered psychological and custody evaluation by Dr. Siegel. In March 2007, the trial court entered a consent order in which the appellant agreed, among other things, to attend at least two sessions with Dr. Fuller or Dr. William Buchanan before April 16, 2007, and to pay all outstanding guardian fees and medical bills. In May 2007, the trial court issued an “interim order,” again with the parties’ consent, which addressed summer visitation and directed the parties to follow Dr. Siegel’s recommendation that the parents continue counseling. For the next 16 months, the parties filed numerous motions and contempt petitions against each other. The case was transferred to a new trial court judge in November 2007, and the appellant obtained a new attorney in April 2008.

The appellee served the appellant’s therapist, Dr. Fuller, with a third-party request for the production of documents, and the appellant moved for a protective order on the ground that his communications with his psychologist were privileged under OCGA § 24-9-21 (7). After a hearing in August 2008, the trial court granted the motion in part and denied it in part, agreeing with the appellant that his communications with Dr. Fuller were privileged but ordering the appellant to produce any nonprivileged documents. The court also ordered Dr. Fuller to produce a copy of the appellant’s file for an in camera inspection, to determine whether any remaining documents were not privileged. A senior judge reviewed Dr. Fuller’s file in camera and made a determination regarding which documents were not privileged, to which the appellant did not object.

In late September and October 2008, the trial court held a five-day hearing on the appellee’s petition to modify the appellant’s visitation. During the hearing, expert witnesses for both parties testified, as did the parties’ therapists, the parties, the custody evaluator, the children’s therapist, neighbors, teachers, and other witnesses. During his direct testimony, the appellant’s expert witness, Monty Weinstein, Ph.D., began to testify about the methodology used by Dr. Siegel in her custody evaluation report. The trial court discovered that Dr. Weinstein’s file contained a copy of the report, and barred Dr. Weinstein from testifying about it because the appellant had not obtained the court’s permission to disclose its contents to the witness. Dr. Weinstein thus testified only about his observations of the appellant and children together, opining that they related very well and that the appellant was an excellent parent.

At the fifth and final day of the hearing, the trial court heard additional testimony, followed by the guardian ad litem’s reluctant recommendation to require that the appellant’s visitation with the children be supervised for a period of time. The guardian based that recommendation on her interviews with the parties, their therapists, and other witnesses, the testimony at trial, and her review of the custody evaluator’s report and the appellant’s unredacted patient file from Dr. Fuller. Over the appellant’s objection, the court ordered that supervised visitation continue until the court issued a final order.

On December 15, 2008, the trial court issued a 16-page order granting the appellee’s petition to modify the appellant’s visitation, requiring that it continue to be supervised. The court found that both parents loved the children, who were nine and six, although their ideas about how to accomplish what was best for the children differed. It also found that the appellant had “significant anger issues,” particularly with the appellee, which “impair his judgment” to the detriment of the children. The court reviewed incidents related at trial which raised the concern of the appellee, the guardian, and the children’s therapist about the appellant’s psychological condition, his relationship with his ex-wife as it affects his relationship with his children, and his ability to supervise his children. The appellant rejected the clinical evaluations of the professionals who had seen him and the children and believed the professionals were conspiring with the appellee to take the children from him. Dr. Fuller, the appellant’s former therapist, testified he was no longer willing to treat the appellant because the appellant would not follow the therapist’s recommendations. The court noted that, while some of the recounted incidents were minor in isolation, in the aggregate they created a concern that the appellant’s conduct was “neglectful to the extreme, [and he was] oblivious or deliberately indifferent to his children’s fears, whether founded or unfounded, and to their immediate needs and demands.” The court found that the appellant was “more preoccupied with annoying and harassing his ex-wife than with his children’s feelings and emotions.” His conduct was potentially dangerous for the children, the court held.

The court ordered the appellant to attend counseling with the therapist recommended by the guardian, “Dr. Carol Webber,” as a condition of visitation, to continue until the therapist determined treatment was no longer necessary. The court also directed the appellant to meet with the children’s therapist as the therapist determined necessary; set forth specific visitation schedules for the school year, summer, and holidays; and removed the requirement that the parents discuss “any major decisions impacting the children,” making the appellee solely responsible for making those decisions. The order also contained numerous specific directions regarding the children’s extracurricular activities and the parents’ conduct.

The appellant filed a motion for new trial. On March 13, 2009, the trial court vacated and set aside its December 15, 2008 order and issued a new order to correct the spelling of the recommended therapist to “Carol Webb,” not “Carol Webber.” The amended order also provided that supervised visitation would continue until the appellant saw Dr. Webb six times, after which Dr. Webb was to report to the guardian ad litem about whether visitation should continue to be supervised.

The parties filed several petitions for contempt citations against each other. After a hearing on March 13, 2009, the court issued an order finding that the appellant took actions “in direct contravention and defiance of the verbal temporary orders issued by the [c]ourt because of [the appellant’s] dissatisfaction with that order,” actions that were “the very essence of contempt of court.” As the order was not in writing when the appellant defied it, however, the court did not formally find him in contempt for those actions. It denied the appellant’s motion for attorney fees to defend against that contempt petition, however.

The court granted the appellee’s second motion for contempt against the appellant for his failure to pay $2,500 attorney fees as previously ordered. Further, because the appellant tendered payment of these fees with a money order at the end of the hearing rather than before, the court assessed another $3,000 in attorney fees against the appellant. Similarly, the court granted the guardian’s motion for contempt for failing to pay guardian fees as ordered the previous October, which the appellant also paid at the end of the hearing. The court found that the appellant could have paid earlier but decided not to because of “his dissatisfaction with the services rendered by the guardian and with her ‘conduct’ in this matter,” as evidenced by a “particularly vitriolic letter directly to the guardian.” The court thus ordered the appellant to pay additional fees to the guardian and deposit money into the court registry to cover future anticipated fees. Finally, in its March 30, 2009 order the trial court denied the appellant’s petition to hold the appellee in contempt for purportedly refusing to allow the children to answer the appellant’s daily telephone calls.

In April 2009, the court held a hearing on the appellant’s motion for new trial and on whether the appellant’s attorney, David E. Oles, acted in contempt by disclosing the custody evaluator’s report to Dr. Weinstein.

On May 4, 2009, the trial court issued a 12-page order finding the appellant’s attorney in contempt for distributing the custody evaluator’s report to the appellant’s expert without first obtaining the court’s permission to do so, and ordered him to pay a $500 fine. On June 5, 2009, the trial court denied the appellant’s motion for new trial, and again found the appellant in wilful contempt for failing to pay the appellee’s attorney fees as ordered. Because the appellant’s refusal to pay was wilful, the court held, it also ordered him to pay the appellee’s attorney an additional $1,600 under OCGA § 9-15-14 (b).

On June 26, 2009, the appellant filed his notice of appeal, seeking review of the June 5, 2009 contempt order as well as 13 other orders. He amended the notice in November 2009 to include review of the trial court’s order denying the appellant’s motion to suspend enforcement of the orders until the appeal was resolved. Other orders issued after the notice of appeal was filed are not before this court.

1. The appellant contends that the trial court erred in ordering a custody evaluation in this case because it involved visitation, not custody. We disagree. OCGA § 19-9-22 (1) defines “custody” as including visitation rights, and OCGA § 19-9-3 (a) (7) authorizes the trial court to order a psychological custody evaluation of the family. Further, while the appellant argues that the trial court acted improperly by modifying his visitation rights without a showing of material change in circumstances, OCGA § 19-9-3 (b) specifically allows the trial court to do so. Nipper v. Rich, 241 Ga. 123, 124 (244 SE2d 237) (1978).

2. The appellant contends the trial court erred in qualifying the children’s therapist as an expert in child psychology during the modification hearing, arguing that the therapist was insufficiently qualified as an expert in general and child psychology. OCGA § 24-9-67.1 (b) provides that “a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion” if specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue. The expert testified that she had a Ph.D. in psychology and had practiced general and child psychology for 25 years.

The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion. Under Daubert, disputes as to an expert’s credentials are properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility. Accordingly, we find no abuse of discretion.

Agri-Cycle LLC v. Couch, 284 Ga. 90, 93 (5) (663 SE2d 175) (2008).

3. The appellant contends the trial court erred in failing to declare a “mistrial” after the guardian ad litem told the court in chambers on the second hearing day that she felt obligated to report to DFCS that the parties’ six-year-old son was telling people the appellant was dead. The guardian testified in depth on the record during the last hearing day about her discussion with the trial court and the parties’ attorneys in chambers the previous week. The guardian explained that after hearing the children’s therapist and the appellee testify that the son repeatedly said the appellant was dead, along with other evidence presented at the hearing about the son’s strange responses to questions about the appellant, she was concerned enough that she felt obligated to report the matter to someone. She called the DFCS hotline, but got no answer so she called the county Crimes Against Children Unit (“CAC”) and talked to a sergeant about her concerns. She testified that she suggested to the sergeant that he interview the child, but then agreed that if the child would not answer questions from his therapist he was unlikely to answer questions from the sergeant. She said that she told the sergeant she felt obligated to contact CAC or DFCS about her concerns, and the sergeant responded that she had done her due diligence.

(a) On appeal the appellant argues that the trial court should have declared a “mistrial” after the guardian’s statement in chambers that she had made a baseless mandatory report. He asserts that his Sixth Amendment right to confront witnesses against him was violated because he was not present in chambers when the guardian made her statement, which was not then placed on the record. His attorney was present in chambers, however, and made no contemporaneous objection, instead objecting on the last day of the hearing after the guardian placed evidence on the record about the matter. Contrary to the appellant’s argument, the guardian did not introduce unreported evidence in chambers. She reviewed the evidence given in open court the previous day and explained why she had taken the action she did.

The appellant filed an affidavit with the trial court stating that no one at DFCS could confirm a report from the guardian and inserted a footnote into his appellate brief commenting that “serious question” exists about whether the guardian made a report to anyone. The guardian explained who she called, why she called, and the resulting conversation, and from her description of events it does not appear that her actions would result in a record at DFCS that could later be uncovered. The guardian’s in-chambers statement that she made this report did not constitute a denial of the appellant’s right to confront witnesses against him.

(b) The appellant also asserts on appeal that the guardian’s statements to the court that she was required to report as a mandatory reporter caused an insurmountable “passion, bias, and prejudice in the mind[ ] of the fact finder against the defendant,” which rendered the trial court’s appearance of impropriety “fatally lost” when the court did not grant a mistrial. But the appellant gave the trial court no opportunity to rule on the matter contemporaneously, waiting until the evidence had closed before asserting that the trial court should have stopped the proceedings three days earlier. The appellant cites no support for his argument that this court could find as a matter of law that the trial court was so prejudiced by allegedly inadmissible evidence that it could not have ruled properly. This enumeration is without merit.

4. The appellant argues that the trial court erred in interpreting the court’s prior orders as forbidding the parties from allowing their expert witnesses to review the custody evaluator’s report to testify about problems with the methodology used. We disagree. The orders we quoted previously are very clear that the report could be disseminated only to the parties, attorneys, and guardian unless otherwise allowed by the court. The language is not susceptible to other interpretation. Further, the parties consented to this order, and both sides had previously sought and obtained permission to reveal the contents of the report to specific people.

5. The appellant argues that, regardless of the language in the orders about the custody evaluator’s report, prohibiting the appellant’s expert from testifying about the report denied the appellant his due process rights. The trial court relied on the guardian’s recommendations, the appellant argued, which were based on the custody evaluator’s report. Thus, he contends, his ability to challenge the methodology used by the evaluator was crucial and the court erred in refusing to allow his expert to testify in this regard.

“The fundamental idea of due process is notice and an opportunity to be heard.” Nix v. Long Mountain Resources, 262 Ga. 506, 509 (3) (422 SE2d 195) (1992). The appellant had notice that the custody evaluator’s report was not to be distributed without permission from the court, and had a process available to him that would probably have allowed him to use the report. He did not avail himself of this option.

The appellant did not even give the appellee notice that he would be calling Dr. Weinstein or a second witness, and she moved to exclude their testimony altogether because she had been “ambushed.” The appellant argued that he did not update his discovery responses because he did not want to reveal his trial strategy to the opposing side, but the trial court allowed him to call the witnesses anyway, after giving the appellee an opportunity to interview them before the hearing began. We find no due process violation in the trial court’s actions.

6. The appellant argues that the trial court violated Dr. Wein-stein’s Fourth Amendment right to be free of unreasonable searches and seizures. While Dr. Weinstein was testifying and it became apparent he had reviewed the custody evaluator’s report, the court asked to see his folder. The witness gave the court his folder without objection. “A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” (Citation and punctuation omitted.) Atwater v. State, 233 Ga. App. 339, 340 (2) (503 SE2d 919) (1998). Even if the appellant had standing to bring a Fourth Amendment claim on behalf of the witness, which he does not, the witness consented to the court’s request without objection. We find no merit in this enumeration.

7. The trial court did not err in denying the appellant’s motion in limine to exclude from the record portions of the custody evaluator’s report that he argues were inadmissible hearsay. The appellant argues that this ruling left him unable to challenge statements reportedly made by his children, which were contained in the evaluator’s report on which the guardian relied. His solution would be to excise any reference in the record to anything the children said, leaving only the bare conclusions of the professionals who have undertaken to review and analyze the family dynamics in this case.

[I]n all proceedings involving custody of a child, all information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.

OCGA § 15-11-56 (a). “To the degree any such information contained hearsay, the courts are presumed to have disregarded it.” (Punctuation omitted.) In the Interest of A. C. O., 269 Ga. App. 667, 672 (2) (605 SE2d 77) (2004). Thus, the trial court did not err in denying the motion in limine.

8. The appellant’s counsel asserts that the trial court erred in finding him in contempt for allowing Dr. Weinstein to review the custody evaluator’s report, in contravention of the court’s orders that the report should not be disclosed without prior permission. Due process requirements in contempt proceedings include the right to notice of the charges of contempt and an opportunity to be heard, Hedquist v. Hedquist, 275 Ga. 188, 189 (563 SE2d 854) (2002), both of which counsel was afforded in this case. The court continued several hearings on the contempt motion against counsel until the court reporter had produced a copy of the hearing transcript, and the court gave counsel a full hearing on the matter.

The contempt finding was not based on illegally seized evidence, but on the file that Dr. Weinstein handed to the trial court upon request. While the appellant’s counsel argues that he innocently misinterpreted the order, the trial court made factual findings otherwise. “A trial judge sitting without a jury is entitled to have his judgment considered as a verdict by a jury; accordingly, it would be inappropriate for this court to substitute its judgment for that of the trial court regarding the weight of evidence and witness credibility.” (Punctuation omitted.) Arnold v. McKibbins, 210 Ga. App. 262, 264 (2) (435 SE2d 685) (1993) (trial court did not err in declining to hold party and attorney in contempt).

9. The appellant argues several constitutional claims, including claims of violations to his “fundamental right to the care, custody and control of his children,” his right to freedom of expression, his right to privacy, and his right to freedom of association. The appellant has not shown that these claims were raised before and ruled on by the trial court, however, and thus we do not address them here. Waller v. Waller, 226 Ga. 279 (2) (174 SE2d 433) (1970).

10. The appellant argues that the trial court violated his right to confidential treatment by ordering him to get counseling from a psychologist “who thereafter would divulge her findings and conclusions to [the guardian ad litem] so that she (not the Court) could determine if further supervision of [the appellant] was needed.” He claims that the court thus “denied the therapy all confidentiality, allowing it to be shared with third parties,” and denied him all parenting time unless he voluntarily waived his right to mental health treatment privacy.

Under OCGA § 24-9-21, communications between a psychotherapist and patient are generally excluded from evidence on grounds of public policy. The crucial issue in determining whether evidence of such communications is admissible in evidence “is not whether the interaction between the mental health worker and the patient was voluntary or involuntary, but rather whether it involved or contemplated treatment,” as opposed to an evaluation. In the Interest of I. M. G., 276 Ga. App. 598, 602 (1) (624 SE2d 236) (2005). This is true regardless of whether the counseling was court-ordered or not. State v. Herendeen, 279 Ga. 323, 326-327 (613 SE2d 647) (2005). On the other hand, if the court appoints a mental health provider simply to examine and evaluate a person’s mental state, no privilege exists because treatment is neither given nor contemplated. Id. at 326.

The trial court in this case ordered the appellant to enter therapy with a particular psychologist, who was recommended by the guardian ad litem during the modification hearing. The court also ordered that, after six counseling sessions, the therapist was to issue a report to the guardian ad litem “specifically making a recommendation with respect to the continuation of supervised visitation.” The court then stated:

Decided July 13, 2011

Reconsideration denied July 29, 2011.

David E. Oles, for appellant.

Huff, Woods & Hamby, Jeanne D. Woods, Barbara M. Lassiter, for appellee.

There is to be no privilege with regard to this therapy as it is court-ordered and is ordered for the benefit of the minor children in this matter as well as the [appellant]. [The therapist] may share the results of this therapy with the guardian ad litem and the court, and the [appellant] is specifically required to follow the recommendations of [the therapist] as a condition of his visitation.

We agree with the appellant that the trial court erred in stating that the appellant had no privilege with regard to his therapy because it was court-ordered. As the appellant’s relationship with the court-ordered therapist involves or contemplates treatment, his communications with the therapist are privileged. But “[a]n appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.” (Punctuation and footnote omitted.) In the Interest of D. W, 294 Ga. App. 89, 94 (3) (a) (668 SE2d 533) (2008). In this case, we find that the trial court’s erroneous statement of the law was harmless, because the trial court did not order that the therapist reveal privileged communication to a third party, only that the therapist report her conclusions to the guardian ad litem and the court about whether the appellant’s visitation with his children should continue to be supervised.

11. We have considered all of the appellant’s remaining enumerations of error, including his assertions of error regarding the testimony of his former treating psychologist and the trial court’s denial of the appellant’s OCGA § 9-15-14 motion for attorney fees. We have also reviewed the appellant’s claims that the trial court erred in modifying terms of the Final Divorce Decree that were not related to visitation; in failing to include a parenting plan in a final custody order under OCGA § 19-9-1; and in making certain factual findings, and find no merit in them.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       We have reviewed the confidential custody evaluation, which has been transmitted with the record to this court, where it remains under seal.


text:
    A11A0919.
    BAILEY v. THE STATE.
    (715 SE2d 681)
   BARNES, Presiding Judge.

A jury found Hillard Bailey guilty of two counts of possession of marijuana with intent to distribute, one count of possession of cocaine, and three counts of possession of a firearm by a convicted felon, and the trial court denied his motion for a new trial. He contends that the State failed to prove possession of the contraband beyond a reasonable doubt. For the following reasons, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a new trial is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.

(Citations and punctuation omitted.) Taylor v. State, 303 Ga. App. 88, 89 (693 SE2d 118) (2010).

Construed in favor of the jury’s verdict, the evidence showed that police officers executed a search warrant for a house in Villa Rica, Georgia. Police found Bailey in the back yard of the residence. When the officers announced that they had a search warrant, Bailey fled from the yard. After a short chase, Bailey was caught by the police.

A vehicle in the yard outside the residence belonged to Bailey. Inside the residence, the police found a poster on a bedroom door that identified it as Bailey and his girlfriend’s room. Bailey’s wallet and driver’s license were located within the bedroom, in addition to bills addressed to Bailey at the residence. The officers also observed that the bedroom where Bailey’s personal items were found had men’s clothing in it and was the only bedroom set up “for people to sleep and live out of.”

Three different guns were found scattered around the bedroom. A large quantity of cash in different denominations also was discovered during the police search. Furthermore, the police search uncovered suspected marijuana, marijuana plants, and cocaine. Different sized plastic bags were also located at the house that an officer testified were consistent with drug dealing. Bailey was arrested after the search was concluded. Subsequent testing of the seized substances confirmed that they were marijuana and cocaine.

On the day of the search, an officer spoke with Bailey’s daughter and his girlfriend. Both of them told the officer that Bailey lived at the residence where the contraband had been seized.

Following his arrest, Bailey was released on bail, and a second search warrant was executed around a month later with no one at the house. Suspected marijuana, cocaine, digital scales, and different sized plastic bags were found by the police. As in the previous search, subsequent testing confirmed that the seized substances were marijuana and cocaine.

On appeal, Bailey contends that the evidence was insufficient to sustain his convictions because the State was unable to prove the contraband belonged to him. Bailey claims that the undisputed evidence shows that the residence was not his but instead was a “family house” to which his extended family and others had equal access. We are unpersuaded.

“If the State presents evidence that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband.” (Citation omitted.) Wheeler v. State, 307 Ga. App. 585, 587 (1) (705 SE2d 686) (2011). Here, officers observed Bailey at the residence before both of the searches; Bailey was discovered in the back yard of the residence during the execution of the first search; and no one else was found at the residence at the time of the first or second searches. Moreover, the State presented evidence of bills in Bailey’s name for the residence, of a poster on the bedroom door with his name on it, of his wallet and driver’s license found in the bedroom, and of his vehicle found outside the residence. There also was evidence that title to the residence was in Bailey’s name. In light of this combined evidence, the jury was entitled to find that Bailey owned and controlled the residence and thus could infer that the contraband found inside was his. See id.

It is true that the presumption of possession arising from ownership or control of the premises can be overcome by evidence that other persons had equal access to the contraband found there. See Wilkerson v. State, 269 Ga. App. 190, 191-192 (2) (603 SE2d 728) (2004). But “in the absence of unrebutted affirmative evidence demanding a finding of equal access,” the question of whether the presumption of possession has been overcome is for the jury to resolve. (Punctuation and footnote omitted.) Mangum v. State, 308 Ga. App. 84, 87 (1) (706 SE2d 612) (2011). See Wilkerson, 269 Ga. App. at 193 (2).

While there was witness testimony in the present case that no one lived at the residence and that it instead was a “family house” used by family members and others for storage, there was evidence presented by the State that conflicted with this testimony. Specifically, in prior statements to the police made after the first search of the residence, Bailey’s daughter admitted that Bailey lived at the residence where the contraband was found, and his girlfriend admitted that he was the owner and occupant there. According to the interviewing officer, neither of them mentioned anything about the residence being a “family house” used only for storage or of others having access to it at the time the contraband was seized. The daughter and the girlfriend contradicted their prior statements to the police when they testified at trial; hence, their prior inconsistent statements were properly admitted and could be considered as substantive evidence by the jury. See Starling v. State, 195 Ga. App. 547, 547 (1) (394 SE2d 581) (1990).

Decided June 29, 2011

Reconsideration denied July 29, 2011.

In addition, Bailey’s girlfriend testified that although her name along with Bailey’s was on the poster on the bedroom door, she had never lived or stayed at the residence with him and had never seen any drugs or firearms when she occasionally visited the residence to check on and feed some dogs that were kept there. Moreover, an officer testified that only one bedroom in the residence appeared to be set up with furniture for someone to live in, and it was that bedroom which had men’s clothing and Bailey’s personal items in it, as well as bills addressed to Bailey at the residence.

Relying upon the prior inconsistent statements of Bailey’s daughter and girlfriend to the police, in addition to the girlfriend and officer’s testimony discussed above, the jury was entitled to reject Bailey’s equal access defense and find that the presumption that he possessed the contraband seized during the first search had not been sufficiently rebutted. Based upon this same evidence, along with the evidence that Bailey was released on bond after the first search of the residence and was observed there by officers on several occasions after his release, the jury likewise was entitled to reject his equal access defense relating to the contraband seized during the second search.

In sum, it was within the province of the jury to assess the credibility of the witnesses and resolve the conflicts in the evidence concerning equal access. See Wheeler, 307 Ga. App. at 587 (1). The State presented sufficient evidence for a rational jury to find Bailey guilty beyond a reasonable doubt of the charged offenses. Jackson, 443 U. S. 307.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

Nathaniel L. Smith, for appellant.

Peter J. Skandalakis, District Attorney, David P. Taylor, Assistant District Attorney, for appellee.


author: Andrews, Judge.

text:
    A11A1017.
    ARROW FINANCIAL SERVICES, LLC v. WRIGHT.
    (715 SE2d 725)
   Andrews, Judge.

This appeal is taken from the trial court’s entry of judgment in favor of Mary Wright in the amount of $22,502.85 after a jury verdict on Wright’s counterclaims against Arrow Financial Services, LLC under the Fair Debt Collection Practices Act, 15 USC § 1692 et seq. (“the federal Act”) and the Fair Business Practices Act, OCGA § 10-1-390 et seq. (“the Georgia Act”). At the close of Arrow’s evidence, the trial court granted Wright’s motion for directed verdict concerning Arrow’s own claim that Wright owed it money as the assignee of a debt originally payable to Empire Flooring, which had replaced Wright’s floor the day after she cancelled a contract to do so. On appeal, Arrow asserts that the trial court erred when it excluded Arrow’s business records of the debt and when it charged the jury concerning the federal Act. We affirm.

“The jury is the final arbiter of the facts, and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict.” (Citation and punctuation omitted.) Wilmock, Inc. v. French, 185 Ga. App. 259, 261 (1) (363 SE2d 789) (1987). By contrast, and because the trial court granted a directed verdict as to Arrow’s claim of indebtedness, we determine whether there is “no conflict in the evidence as to any material issue” and whether “the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict” on that claim. OCGA § 9-11-50 (a).

So viewed, the record shows that in January 2008, Arrow brought an action as the assignee of “Home Value/GE Money Bank” to collect a debt in the amount of $7,353.92 plus interest and costs. Wright answered and counterclaimed under the federal Act and the Georgia Act for wrongs including Arrow’s false and misleading statements made in the course of its attempts to collect the consumer debt, including its assertion that it was a valid assignee. Wright’s counterclaim prayed for statutory damages and actual damages under the federal Act as well as treble damages under the Georgia Act.

Two witnesses testified at trial. The first was Tonya Easterling, an account representative responsible for charged-off accounts acquired by Arrow. When Arrow proffered a series of statements sent by GE Money Bank and its predecessors as evidence of the debt’s origins, Wright objected, and the trial court authorized Wright to examine the witness about her knowledge of the documents before rendering a decision on their admissibility. Easterling testified that she was not employed by GE Money Bank and that she had no personal knowledge of the means by which the documents were created. Easterling also testified that Arrow had not obtained the documents at the time it began its efforts to collect the debt. Based on this testimony, the trial court sustained Wright’s objection to the documents’ admission on the ground that Easterling did not have the personal knowledge necessary to authorize admission of the documents under the business records exception to the hearsay rule.

At the close of this testimony, Wright moved for a directed verdict, which was granted on the grounds that Arrow had failed to prove either the original contract or a valid chain of assignments from Empire to Arrow. The trial then proceeded on Wright’s counterclaim.

Wright testified that in July 2004, representatives of Empire Flooring “cold-called” her, came to her house, and convinced her to sign a contract to replace the hardwood flooring in her foyer and kitchen with laminate flooring. After the Empire representative left, but on the same day she signed the contract, Wright checked prices at other stores and determined that Empire’s were three times higher. Wright then called back Empire and, with the agreement of the Empire representative, cancelled the contract. Despite this, Empire installers came to Wright’s house the following day while she was at work. After a babysitter let them into the house, the installers removed Wright’s hardwood floors and installed laminate ones.

Wright placed a number of calls and a certified letter the next day to Empire advising them that she had cancelled the order and was disputing any charges. In August 2004, however, she began receiving statements of her indebtedness in the amount of $3,900 from “Empire/GE Capital Con CC.” Wright disputed these charges, which were noted as due in August 2005. Sometime later, Arrow began writing and calling Wright at home and at work (the Internal Revenue Service), demanding payment. These calls and letters continued well after Wright first advised Arrow that she was disputing the charges. The IRS eventually placed a letter in Wright’s personnel file about financial responsibility as a result, and Wright’s credit was affected. By March 2007, the amount Wright owed to an entity now known as “GE Money Bank” had grown to $7,353.92. It was at this point that GE Money Bank, which had apparently obtained the account from entities including “GE Capital Consumer Card Co. and Monogram Credit Card Bank of Georgia,” executed a bill of sale of the account to Arrow.

At the charge conference, Arrow offered a charge that a debt collector would not be liable for violation of the federal Act “if it shows by a preponderance of the evidence that (1) it did not intend to violate the Act and (2) the violation resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” See Smith v. Transworld Systems, 953 F2d 1025 (6th Cir. 1992). Arrow’s proposed charge also specified that if the debt collector offered evidence that it was unaware of the violation, “the burden shifts” to the alleged debtor to show that the collector “was indeed acting intentionally,” and that to discharge this burden, an alleged debtor would be “required to present evidence creating a reasonable inference, [and] not a mere possibility [,] of intent.”

After noting the possibility that Arrow might have made a bona fide error in believing that the bill of sale from the GE entity justified its efforts, the trial court delivered the following charge:

A debt collector may not be held liable in any action brought under the Act if the debt collector shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid the error. A debt collector asserting bona fide error as a defense must show by a preponderance of the evidence that its violation of the Act, one, was not intentional; two, was a bona fide error; and three, occurred despite the maintenance of procedures reasonably adapted to avoid any such error. The failure by the debt collector to meet any one of these requirements is fatal to the debt collector’s defense.

The trial court also defined “bona fide error” as one “made in good faith, a genuine mistake as opposed to a contrived mistake,” and that to be considered bona fide, a debt collector’s mistake “must be objectively reasonable.” Arrow preserved its objection to this charge.

The jury awarded Wright actual damages of $6,500.95 and statutory damages of $1,000, and specifically found that Arrow had intended to violate the federal Act. The trial court then entered judgment on the verdict, including a trebling of actual damages under the Georgia Act for total damages of $22,502.85, but reserving the issue of attorney fees. This appeal followed.

1. Arrow first claims that the trial court erred when it excluded its business records of the debt and that it was harmed by the error. We disagree.

“The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it.” Scott v. Cushman & Wakefield of Ga., 249 Ga. App. 264, 265 (547 SE2d 794) (2001); see also OCGA § 9-2-20 (a). “A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.” (Citations and punctuation omitted; emphasis supplied.) Wirth v. Cach, LLC, 300 Ga. App. 488, 489 (685 SE2d 433) (2009).

Pretermitting whether the trial court erred in excluding Arrow’s records of the debt, Wright’s uncontradicted testimony showed that the Empire representative agreed to cancel the contract before the debt was incurred. Even assuming that the debt survived Wright’s cancellation, moreover, the proffered records concerning the history of the debt before its sale to Arrow show only the names of a number of entities associated with the attempt to collect it. This string of corporate names is insufficient as a matter of law to prove a chain of valid written assignments of the debt from Empire to GE Capital Consumer Credit Card Company to GE Money Bank, and thus to Arrow. It follows that any possible error in excluding these records was harmless. See Scott, 249 Ga. App. at 266 (reversing grant of summary judgment and remanding for entry of judgment in favor of debtor when successor creditor had failed to provide evidence of “written agreements which could complete the chain of assignments” from previous creditor); Wirth, 300 Ga. App. at 491 (reversing grant of summary judgment to bill collector where there was no evidence completing the chain of assignment to that collector).

2. The Eleventh Circuit has recently summarized the federal law’s purposes as follows:

The Fair Debt Collection Practices Act was enacted by Congress “to eliminate abusive debt collection practices by debt collectors” and “to protect consumers against debt collection abuses.” 15 U.S.C. § 1692 (e). Congress found abusive practices by debt collectors to be “serious and widespread.” Russell v. Equifax A.R.S., 74 F3d 30, 33 (2d Cir. 1996). The Act provides a civil cause of action against any debt collector who fails to comply with the requirements of the Act, including § 1692e (11). See 15 U.S.C. § 1692k (a). A debt collector can be held liable for an individual plaintiffs actual damages, statutory damages up to $1,000, costs, and reasonable attorney’s fees. 15 U.S.C. § 1692k (a) (1)-(3).

Edwards v. Niagara Credit Solutions, 584 F3d 1350, 1352 (11th Cir. 2009). The Act provides debt collectors with a “bona fide error” defense, “which insulates them from liability even when they have failed to comply with the Act’s requirements.” Id. The statutory defense provides:

Decided July 13, 2011

Reconsideration denied July 29, 2011

McGuireWoods, Kevin C. Watters, H. Wayne Phears, for appellant.

Charles B. Pekor, Jr., David A. Cox, for appellee.

A debt collector may not be held liable in any action brought under this [subchapter] if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

15 USC § 1692k (c). Thus a debt collector asserting the bona fide error defense “must show by a preponderance of the evidence that its violation of the Act: (1) was not intentional; (2) was a bona fide error; and (3) occurred despite the maintenance of procedures reasonably adapted to avoid any such error.” Edwards, 584 F3d at 1352-1353, citing Johnson v. Riddle, 443 F3d 723, 727-728 (10th Cir. 2006). “The failure to meet any one of those three requirements is fatal to the defense.” Id. at 1353.

The delivered charge accurately recited both the statutory defense and a virtually identical restatement of it from federal case law. The trial court was within its rights to refuse further explanation as either confusing or unnecessary.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.


author: MlKELL, Judge.

text:
    A11A0905.
    MORROW v. THE STATE.
    (715 SE2d 744)
   MlKELL, Judge.

After a bench trial, William Morrow was convicted of manufacturing marijuana and trafficking in marijuana. Morrow appeals the trial court’s denial of his motion for new trial, contending the trial court erred in denying his motion to suppress the results of a search of his person and home pursuant to a Fourth Amendment waiver that was a special condition of his probation. We find no error and affirm Morrow’s convictions.

The following three principles apply in the appellate review of a trial court’s denial of a motion to suppress:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

“Because there was testimonial evidence in this case, we do not apply a de novo standard of review.”

So viewed, the evidence reveals that prior to the search at issue in the present case, Morrow had entered a negotiated guilty plea to possession of a firearm and possession of marijuana and was sentenced to confinement for a period of five years. The sentencing court permitted the sentence to be served on probation provided that Morrow comply with general and special conditions. Of particular importance is the following special condition of Morrow’s probation:

The Defendant: . . . shall submit to a search of his/her person, houses, papers and/or effects as these terms of the Fourth Amendment to the United States Constitution are defined by the courts, any time of the day or night, with or without a search warrant, whenever requested to do so by a probation officer, and he/she specifically consents to the use of anything seized as evidence in any judicial proceedings or trial.

While Morrow was serving his sentence, a confidential informant advised the Forsyth County Sheriffs Office Narcotics Unit that Morrow was growing marijuana and that Morrow regularly used marijuana. The informant told the Narcotics Unit that a room at Morrow’s business had recently been installed with upgraded ventilation, upgraded electrical work, and a heavy duty type lock. After receiving the tip, a Narcotics Unit investigator contacted Morrow’s probation officer, who aided him in finding Morrow’s home. After receiving permission from the probation officer to search Morrow pursuant to his Fourth Amendment waiver, two investigators from the Narcotics Unit approached Morrow while he was on his lawn. The investigators advised Morrow that they were there to perform a search of the home as allowed under his probation and ordered him to empty his pockets on the hood of his vehicle. Morrow complied, and placed approximately $5,000 in cash on the hood of the car. An investigator patted Morrow down and discovered a small bag of marijuana in Morrow’s pocket.

The investigator asked Morrow whether there was any marijuana located inside the house. Morrow admitted that there was and led investigators inside the house to the garage where he produced a glass jar with a few ounces of marijuana in it. However, the investigator testified that once inside the garage, he noticed a strong smell of marijuana along with the sound of a fan. Morrow was handcuffed and advised of the Miranda warning. Without invoking his Miranda rights, Morrow admitted to growing marijuana in the basement of his home. The probation officer then arrived at the scene. At that time, both the investigator and the probation officer searched the home and found an elaborate marijuana growing system and approximately 764 marijuana plants in the basement.

Morrow moved to suppress the marijuana found on his person and in his home, contending that the warrantless search violated his Fourth Amendment rights. Morrow argued, among other things, that he did not waive his Fourth Amendment rights under the Georgia Constitution as a special condition of his probation and that the search was illegal because it was conducted by a law enforcement officer and not by a probation officer as specified in his special condition of probation. The trial court disagreed, denied the motion to suppress, and found him guilty of manufacturing marijuana and trafficking in marijuana. Morrow moved for a new trial, asserting the trial court erred in denying the motion to suppress. Following the denial of his motion for new trial, Morrow appealed.

Morrow challenges the trial court’s denial of his motion to suppress, contending that (1) he did not knowingly and voluntarily waive his Fourth Amendment rights as a condition of his probated sentence; (2) the Fourth Amendment waiver in his special condition of probation did not waive his rights under the Georgia Constitution; and (3) the search was improperly conducted by a law enforcement officer rather than his probation officer. Viewing the evidence in the light most favorable to the trial court’s ruling, we reject these contentions.

1. Morrow contends that he did not knowingly and voluntarily waive his Fourth Amendment rights as a special condition of his probated sentence. As found by the trial court, however, the transcripts of Morrow’s plea of guilty to the unlawful possession of a firearm reveal that he was informed by the assistant district attorney that a Fourth Amendment waiver was part of the negotiation with Morrow and his attorney; that neither Morrow nor his attorney objected to the Fourth Amendment waiver during the plea; that the Court explained the Fourth Amendment waiver to Morrow on the record; and that Morrow signed a waiver as a special condition of probation. These circumstances show that Morrow validly waived his Fourth Amendment rights.

2. Morrow next argues, in the alternative, that he waived his rights under only the United States Constitution and did not expressly waive his rights under the Georgia Constitution because the relevant portion of his written sentence did not expressly invoke a waiver of the protections afforded by the Georgia Constitution.

Morrow’s written sentence referred to the Fourth Amendment waiver and stated that Morrow

[s]hall submit to a search of his/her person, houses, papers, and/or effects as these terms of the Fourth Amendment to the United States Constitution are defined by the Courts, any time of day or night, with or without a search warrant, whenever requested to do so by a probation officer, and he/she specifically consents to the use of anything seized as evidence in any judicial proceedings or trial.

The question is not whether the state constitution provides protection against unlawful searches and seizures, but whether the right was validly waived by Morrow when he waived his rights pursuant to the special condition of probation. The Fourth Amendment to the Georgia Constitution provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized.

Although we acknowledge that this Court has recognized greater protection under the Georgia Constitution than under the federal Constitution in a number of areas, Morrow has cited no case law demonstrating that the Fourth Amendment of the Georgia Constitution affords greater protection than provided by the federal constitution under the circumstances presented in the case at bar. Therefore, Morrow was aware of the rights he was waiving when he bargained for his plea negotiation.

Additionally, as the trial court noted, a careful reading of the special conditions of probation indicates that the sentencing court’s reference to the Fourth Amendment under the federal constitution was merely illustrative of the category of rights being given up by Morrow.

3. Morrow next argues that the trial court erred in denying his motion to suppress because the search of his person and his home was conducted by a law enforcement officer, not by a probation officer, as required by the special condition of probation. However, the record reveals that at all relevant times, the Narcotics Unit investigators were authorized by the probation officer to conduct the search. The investigators contacted the probation officer to verify that Morrow was a probationer, worked with the probation officer to locate Morrow, and obtained permission from the probation officer prior to making contact with Morrow. Further, the probation officer was present during the search of Morrow’s basement, which revealed the marijuana growing system. We find that the search of Morrow’s person and home was authorized by the probation officer.

Decided July 29, 2011

Banks & Stubbs, Rafe Banks III, for appellant.

Penny A. Penn, District Attorney, James A. Dunn, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P J., and Dillard, J., concur.

       (Punctuation, footnote and emphasis omitted.) Butler v. State, 303 Ga. App. 564-565 (694 SE2d 168) (2010).

       (Footnote omitted.) Ware v. State, 309 Ga. App. 426 (710 SE2d 627) (2011).

       During the plea colloquy, the trial court stated:
      One additional matter, Mr. Morrow, is [that] there is a Fourth Amendment waiver. So to that end, without your consent and without notice, law enforcement, which includes your probation supervisor, can conduct a search of your home or of your vehicle or any vehicle you occupy and your person. Anything that they should find could be used against you.

       See Hess v. State, 296 Ga. App. 300, 301-302 (1) (674 SE2d 362) (2009) (defendant validly waived Fourth Amendment rights as a condition of probation where trial court informed him of condition of probation at sentencing in presence of counsel who did not object). Compare Fox v. State, 272 Ga. 163, 164-165 (1) (527 SE2d 847) (2000) (waiver of defendant’s Fourth Amendment rights as a condition of probation not valid where defendant was first informed of condition by probation officer outside presence of counsel after sentencing).

        See Allen v. State, 258 Ga. 424, 425 (2) (369 SE2d 909) (1988) (finding that the Fourth Amendment of the federal constitution applies to probationers as well as other citizens and that the appellate court must inquire as to whether those rights were validly waived).

       Ga. Const. 1983, Art. I, Sec. I, Par. XIII.

        Powell v. State, 270 Ga. 327, 331 (3), n. 3 (510 SE2d 18) (1998) (“It is a well-recognized principle that a state court is free to interpret its state constitution in any way that does not violate principles of federal law, and thereby grant individuals more rights than those provided by the U. S. Constitution.”) (citation omitted). E.g., id. at 332 (3) (due process); Green v. State, 260 Ga. 625, 627 (2) (398 SE2d 360) (1990) (right against self-incrimination); Fleming v. Zant, 259 Ga. 687, 690 (3) (386 SE2d 339) (1989) (guarantee against cruel and unusual punishment); Colonial Pipeline Co. v. Brown, 258 Ga. 115, 120 (3) (d) (365 SE2d 827) (1988) (excessive fines); D. B. v. Clarke County Bd. of Ed., 220 Ga. App. 330, 331 (1) (469 SE2d 438) (1996) (guarantee of free education).

        Democratic Party of Ga. v. Perdue, 288 Ga. 720, 728 (2) (707 SE2d 67) (2011) (“That this [c]ourt has recognized greater protection extended under the Georgia Constitution than under the federal constitution in a number of other areas is not relevant” in considering the equal protection clause) (footnote omitted).

       Investigator Thomas Moore, who conducted the initial search of Morrow outside his home, testified that it was standard safety procedure for a law enforcement officer to make the initial contact with a probationer who had been convicted of a firearm offense before allowing the probation officer to arrive at the scene.

        Reece v. State, 257 Ga. App. 137, 140 (2) (b) (570 SE2d 424) (2002).


text:
    A11A0978.
    BUSH et al. v. REED et al.
    (715 SE2d 747)
   BARNES, Presiding Judge.

Allyson Bush and Glenn Bush, individually and as parents of their deceased son, brought this wrongful death action against Sandra B. Reed, M.D., and the Shaw Center for Women’s Health, EA. The case was tried before a jury, which returned a verdict in favor of the defendants. The plaintiffs filed a timely notice of appeal, but the trial court later dismissed the appeal because of the delay in filing the transcript of the proceedings. It is from the dismissal order that the plaintiffs now appeal. Because the trial court did not abuse its discretion in finding that the delay in the filing of the transcript was unreasonable, inexcusable, and caused by the plaintiffs, we affirm.

The record reflects that on October 6, 2009, the trial court entered judgment in favor of the defendants and against the plaintiffs in this wrongful death action. On October 27, 2009, the plaintiffs filed their notice of appeal designating only certain portions of the record and trial transcript to be prepared for inclusion in the appellate record. The following month, the defendants filed a designation and an amended designation requesting that the clerk of court include a complete transcript of the trial proceedings and omit nothing from the appellate record.

Subsequently, on January 4, 2010, the plaintiffs filed a motion for an extension of time to file the trial transcript, acknowledging that they had not filed their motion within the time required by OCGA § 5-6-39 (d). The defendants consented to the plaintiffs’ motion for an extension of time, and the trial court granted the motion on January 25, 2010. The trial court’s January 25 order provided in relevant part:

[The plaintiffs’] Motion for Extension of Time until such time as the transcript is completed and the record on appeal has been prepared for transmittal to the Appellate Court is hereby GRANTED. . . . [The plaintiffs] shall have 20 days from the date the trial transcript is completed and the record on appeal has been prepared for transmittal to Appellate Court to file the transcript.

On February 3, 2010, the court reporter mailed a letter to counsel for the plaintiffs stating that she would require a deposit of $3,500 before she would begin preparing the trial transcript. The court reporter further noted that she was “at a bit of a quandary as to how to proceed,” given that the plaintiffs had requested a partial transcript, and she had “never been requested to do a partial transcript for a case on appeal, and, quite frankly, [was] simply not able to prepare a transcript in the manner that [was] requested.” She also pointed out that the defendants were taking the position that the entire transcript needed to be prepared to “go up with the record on appeal.”

Later that month, the plaintiffs filed a motion asking the trial court to allocate the costs of preparing the transcript between the parties. On April 21, 2010, the trial court conducted a telephone hearing addressing the motion to allocate costs, at which time the trial court orally denied the motion, thus requiring the plaintiffs to bear the cost of having the trial transcript prepared. The trial court thereafter entered a written order denying the plaintiffs’ motion to allocate costs on May 6, 2010.

No trial transcript was filed by the plaintiffs in the ensuing months, and on July 29, 2010, the defendants filed their motion to dismiss the appeal for the plaintiffs’ alleged unreasonable and inexcusable delay in filing the trial transcript. In connection with their motion, the defendants submitted the affidavit of the court reporter, who averred that following her mailing of the February 3 letter, she had not received the necessary deposit from the plaintiffs, and that since the time of the April 21, 2010 telephonic hearing, she had not had any contact whatsoever with the plaintiffs or their attorney or received any indication that they wished to pay for the trial transcript.

On August 13, 2010, after the filing of the defendant’s motion to dismiss, the plaintiffs submitted the $3,500 deposit to the court reporter to begin preparation of the trial transcript. On October 20, 2010, the plaintiffs for the first time responded to the defendant’s motion to dismiss, and they later moved to supplement the record with additional evidence. Arguing that the plaintiffs’ response to their motion to dismiss was untimely under Uniform Superior Court Rule 6.2, the defendants requested that the plaintiffs’ late response be stricken and that the plaintiffs not be permitted to present any evidence in opposition to their motion to dismiss.

Following a hearing, on November 15, 2010, the trial court entered a detailed 15-page order granting the defendants’ motion to dismiss the appeal. The trial court found that based on the letter mailed from the court reporter to plaintiffs’ counsel, the plaintiffs had been aware since February 3, 2010 that they needed to submit payment of the necessary deposit to the court reporter before she would begin preparing the trial transcript. Nevertheless, the trial court found, the plaintiffs “took no action to allow the transcript to begin being prepared” until August 2010, after the defendants had filed their motion to dismiss the appeal, when the plaintiffs finally paid the deposit to the court reporter. The trial court pointed out that this long delay in payment had occurred despite the fact that the plaintiffs knew from at least April 21, 2010 — the date the court conducted the telephone hearing and orally denied their motion to allocate the costs of preparing the transcript — that they would be required to bear the full cost of having the transcript prepared. The trial court further found that this delay had prejudiced the defendants’ position by delaying the docketing of the case with the court of appeals until a later term of court.

Based upon these findings, the trial court concluded that the delay in procuring the trial transcript, which still had not been completed and filed with the clerk of court, was unreasonable, inexcusable, and caused by the plaintiffs. In reaching this conclusion, the trial court rejected the plaintiffs’ argument that the January 25, 2010 order, which granted an extension of time for the filing of the transcript, excused the delay in this case, noting that the order did “not in any way vitiate [the plaintiffs’] duty to see that the transcript was timely prepared by paying the initial deposit.” The trial court further concluded that it was authorized to strike the plaintiffs’ response to the defendants’ motion to dismiss as untimely and that the plaintiffs had waived any right to present evidence in opposition to the defendants’ motion. For these combined reasons, the trial court dismissed the appeal.

The plaintiffs argue that the trial court erred in dismissing their appeal because the delay in the filing of the transcript was neither unreasonable nor inexcusable. We are unpersuaded.

The relevant statutory framework is as follows. OCGA § 5-6-41 (c) provides that “where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at the appellant’s expense.” OCGA § 5-6-42 elaborates on this duty, specifying that the appellant must file the transcript within 30 days after the filing of the notice of appeal unless the time is extended as provided by OCGA § 5-6-39. In turn, OCGA § 5-6-48 (c) governs the dismissal of appeals and provides that “the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by [the appellant].”

The determination of whether the delay in the filing of the transcript was unreasonable, inexcusable, and caused by the appellant is a fact issue for the trial court and will not be disturbed on appeal absent an abuse of discretion. See Hall v. Bussey, 200 Ga. App. 311 (408 SE2d 430) (1991); Hunt v. Lee, 190 Ga. App. 403, 405 (379 SE2d 215) (1989). Mindful of this deferential standard of review, we turn to the trial court’s dismissal order.

(a) We first address the trial court’s finding that the delay in the procurement of the trial transcript was unreasonable.

The threshold question of whether a delay in filing a transcript is unreasonable is a separate matter from the issue of whether such a delay is inexcusable, and it refers principally to the length and effect of the delay rather than the cause of the delay. Generally, a delay is unreasonable if it affects an appeal, either by directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity, or by causing the appeal to become stale, for instance by delaying docketing and hearing in this court.

(Citations and punctuation omitted.) Adams v. Hebert, 279 Ga. App. 158, 159 (630 SE2d 652) (2006). Furthermore, a delay in excess of 30 days is considered prima facie unreasonable and inexcusable. See id.

Here, there was evidence to support the trial court’s findings that the plaintiffs took no steps whatsoever to have the transcript prepared until mid-August 2010, which was almost ten months after the plaintiffs had filed their notice of appeal, over seven months after the court reporter had informed them of the necessary deposit, and almost five months after the trial court had informed them at the telephonic hearing that they would be responsible for bearing the full costs of having the transcript prepared. Moreover, as the trial court pointed out, by waiting to pay the deposit and order the transcript until mid-August 2010, the plaintiffs prevented the case from being docketed and heard in the earliest possible appellate term of court. Specifically, the delay in procuring the transcript precluded the case from being docketed and heard in the September 2010 appellate term of court, which closed on August 15, 2010, rather than some future term when the transcript is finally completed and filed for inclusion in the appellate record.

In light of this evidence, we cannot say that the trial court abused its discretion in finding that the plaintiffs’ delay in procuring the trial transcript was unreasonable. See Morrell v. Western Svcs., 291 Ga. App. 369, 374 (2) (662 SE2d 215) (2008) (51-day delay in filing trial transcript was unreasonable because it caused the appeal to be delayed from the April to the September appellate term of court); Adams, 279 Ga. App. at 159 (delay in filing transcript was unreasonable, where appellant waited more than 150 days to file it, thereby “preventing] the placement of the case on the earliest possible appellate court calendar” and causing “the docketing and consideration of the appeal [to be] delayed for another term”). As we have recognized, “justice delayed for even one day is justice denied to the litigant who was successful in the lower court and who is entitled to his judgment unless the case is properly reversed.” (Citation and punctuation omitted.) Adams, 279 Ga. App. at 159.

(b) We next address the trial court’s findings that the delay in the procurement of the trial transcript was inexcusable and was caused by the plaintiffs. As previously noted, there was evidence that the plaintiffs made no effort to contact the court reporter and pay the deposit for the trial transcript until August 2010, with full knowledge that no steps would be taken by the court reporter to prepare the transcript until the deposit was paid. And because the trial court granted the defendant’s motion to strike, there is no evidence in the record providing an explanation for the plaintiffs’ failure to make any effort to contact the reporter and pay the deposit until after the defendants moved to dismiss the appeal because of the delay.

Under these circumstances, we cannot say that the trial court abused its discretion in finding that the delay was inexcusable and was caused by the plaintiffs. See Coptic Constr. Co. v. Rolle, 279 Ga. App. 454, 456 (631 SE2d 475) (2006) (delay in filing of trial transcript was inexcusable and caused by appellant, where appellant failed to communicate with the court reporter for nine months); Crocker v. Stevens, 210 Ga. App. 231, 240-241 (10) (435 SE2d 690) (1993), disapproved in part on other grounds by Kim v. Lim, 254 Ga. App. 627, 630 (1) (563 SE2d 485) (2002) (three-month delay in filing of trial transcript was inexcusable and caused by appellant, where appellant delayed payment of the initial deposit for preparation of the trial transcript); McIntyre v. Gulf Oil Corp., 151 Ga. App. 855, 856-857 (261 SE2d 766) (1979) (delay in filing of trial transcript was inexcusable and caused by appellant, where appellant failed to pay for the preparation of the transcript, despite having been notified in a letter from the court reporter that the transcript would be prepared only upon receipt of payment).

(c) In concluding that the trial court did not abuse its discretion, we reject the plaintiffs’ contention that the trial court’s January 25, 2010 order provided them with a blanket extension to procure the trial transcript and thus excused any delay in this case. It is true that the January 25 order granted the plaintiffs an extension of time to file the transcript within 20 days from the date the transcript was completed. But, as the trial court itself reasoned, the order should not be construed as vitiating the plaintiffs’ duty to see that the transcription process was initiated in a timely manner by paying the initial deposit. As our Supreme Court has explained, “[t]here is nothing in our statutes or decisions which requires that the obtaining of extensions per se excuses an appellant from the consequences of his own unreasonable delay.” Cox Enterprises v. Southland, Inc., 226 Ga. 794, 797 (2) (a) (177 SE2d 653) (1970). In other words, a delay in the filing of a trial transcript still may be unreasonable and inexcusable under the totality of the circumstances, despite the prior grant of an extension of time. See id. (noting that “the obtaining of extensions is not conclusive on the issue of delay by the appellant in filing the transcript”); Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 504 (2) (458 SE2d 377) (1995) (delay in filing of transcript was unreasonable and inexcusable, despite the grant of prior extension orders, including an order granting “an indefinite extension of time within which the transcript and record might be prepared and submitted,” where it was later discovered that the appellant had not been diligently communicating with the court reporter). Based on the evidence previously discussed, the trial court acted within its discretion in concluding that the delay in this case was unreasonable and inexcusable under the totality of the circumstances, irrespective of the January 25 order.

Decided July 29, 2011.

Paul D. Hermann, for appellants.

Coleman Talley, Gregory T. Talley, for appellees.

For these combined reasons, the trial court did not err in finding that the delay in the filing of the trial transcript was unreasonable, inexcusable, and caused by the plaintiffs in light of their failure to timely pay the initial deposit to the court reporter. Consequently, we affirm the trial court’s grant of the defendants’ motion to dismiss the appeal under OCGA § 5-6-48 (c).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       Under OCGA § 5-6-39 (d), a motion for an extension of time to file the transcript “must be made before expiration of the period for filing as originally prescribed or as extended by a permissible previous order.”

       Uniform Superior Court Rule 6.2 provides: “Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion.”

       The plaintiffs do not challenge the trial court’s decision to strike their response to the defendants’ motion to dismiss the appeal and to bar them from presenting any evidence in opposition to the motion. In any event, as the trial court noted in its order, the defendants still were required to show from the pleadings and evidence that they were entitled to prevail on their motion to dismiss.

       Court of Appeals Rule 12 provides that “[t]he docket for the January, April, and September terms shall close at noon on the 15th day of December, April and August, respectively.”