author: Andrews, Chief Judge.

text:
    A98A1230.
    GRABOWSKI v. THE STATE.
    (507 SE2d 472)
   Andrews, Chief Judge.

Roderick John Grabowski was found guilty by a jury of burglary, driving without a valid driver’s license, and giving a false name to a law enforcement officer. On appeal from the judgment of conviction entered on the guilty verdicts, Grabowski claims that the evidence was insufficient to support the burglary conviction, and the trial court erred by refusing to suppress certain evidence. Finding sufficient evidence to support the convictions on all three offenses and finding no error in the trial court’s refusal to suppress evidence, we affirm.

1. Grabowski contends the evidence was insufficient to show that he was guilty of burglary. The State presented testimony from the victim of the burglary and various police officers in support of its case.

The victim testified that about 9:00 a.m., while she was alone inside her house, she heard loud pounding on the front door and saw a white male wearing a plaid shirt, jeans, and an “Indiana Jones” style hat walk past a window. She could not see the man’s face because the hat was pulled down low. The victim called 911 and reported the incident and also gave a description of the man to a police officer who was dispatched to her house a few minutes after the 911 call.

About 10:30 a.m. of the same morning, the victim noticed that a white van had pulled into the driveway of her house. As she was looking at the van from a window, she heard a loud bashing noise in the basement of the house. She again called 911 and reported that someone had apparently forced open the basement door, and she could hear the footsteps of someone coming up the basement steps toward the inside door to the house. At that point, the victim put down the phone and threw a heavy doorstop down the hall of the house and yelled, “Get out of my house.” She heard the footsteps of someone running back down the basement steps. She ran to the front window of the house in time to see the white van leaving the driveway at a high rate of speed. As the van pulled away, she saw clothing stacked up against the rear window of the van and a Tennessee license plate on the van. The victim picked up the phone and reported to the 911 operator, who was still on the line, that the person had left the basement and was driving away in a white van with a Tennessee license plate. She also watched the van as it drove away and told the 911 operator that she saw the van heading toward Arnold Mill Road.

The State presented evidence that the 911 operator immediately conveyed this information to the police by radio. Police dispatched an officer to the victim’s residence and placed officers in the vicinity of the victim’s house on alert for a white van with a Tennessee license plate in the area of Arnold Mill Road. Shortly after receiving the radio alert, two officers responding to the alert spotted a white van with a Tennessee license plate on Arnold Mill Road and stopped the van to investigate the burglary report. The officers explained to Grabowski that they had stopped him to investigate a recent burglary in the area where a similar white van had been spotted. Grabowski, who was the driver and sole occupant of the van, had no driver’s license or other identification and gave a false name to the officers.

After being contacted by the officers at the investigatory stop, the officer dispatched to the victim’s house drove the victim past the van, and the victim identified Grabowski’s van as the white van she had seen leaving her driveway after the break-in. The victim noticed not only that Grabowski’s van was the same type of white van with a Tennessee license plate, but that the rear window of the van was obstructed with clothing in the same way as the van she had seen in her driveway. After the victim identified Grabowski’s van, an officer at the investigatory stop placed Grabowski under arrest for failure to have a driver’s license.

At the victim’s house, officers found that the basement door had been smashed open from the outside. A footprint was found on the outside of the basement door, footprints were found on the floor inside the basement, and tire tracks were found in the victim’s driveway. After Grabowski was arrested, officers seized the shoes he was wearing and determined by comparison that the pattern of the tread on Grabowski’s shoes matched the pattern of the tread of the footprint on the basement door and matched the tread pattern of the footprints inside the basement. Officers also matched the tire tread pattern on Grabowski’s van to the tire tracks left by the van that the victim saw leaving her driveway after the break-in. Although the victim did not see the person who broke into the basement of her house at 10:30 a.m., Grabowski fit the general description and was wearing the same type of clothing as the person seen by the victim outside her house at 9:00 a.m. the same morning. The victim identified a hat found in Grabowski’s van as similar to the “Indiana Jones” style hat worn by the unidentified person she saw outside her house at 9:00 a.m. on the morning of the break-in. In addition to the license and false name offenses, Grabowski was charged with the burglary of the victim’s house.

Grabowski presented alibi testimony from his brother and testified in his own defense that he had nothing to do with the burglary of the victim’s house. Grabowski admitted that his driver’s license was suspended at the time he was stopped by the officers, and that he gave a false name to the investigating officers.

The direct and circumstantial evidence was sufficient to place Grabowski at the scene of the break-in and to allow the jury to conclude beyond a reasonable doubt that Grabowski was guilty as charged of burglarizing the victim’s house. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-7-1. The evidence was also sufficient to support Grabowski’s conviction on the driver’s license and false name offenses.

2. Grabowski invoked the discovery provisions of OCGA § 17-16-1 et seq. prior to trial. He claims that the State violated its duty pursuant to OCGA § 17-16-7 to produce certain statements allegedly in its possession, custody, or control made by his brother to a police officer.

The statements at issue were statements made by Grabowski’s brother to the officer which were not recorded or reduced to writing and which the prosecutor did not become aware of until the trial was in progress. “Th[e] statutory obligation [of § 17-16-7] is not triggered when a witness merely makes an oral statement. There can be no ‘possession, custody, or control’ [by the State] of a witness’ statement which has neither been recorded nor committed to writing. OCGA § 17-16-1 (1).” Forehand v. State, 267 Ga. 254, 255-256 (3) (477 SE2d 560) (1996); OCGA § 17-16-1 (2) (C). The trial court did not err by concluding that admission of the statement did not violate the discovery provisions of OCGA § 17-16-1 et seq.

3. Grabowski claims the trial court erred by not suppressing the victim’s identification of the van at the investigatory stop.

Citing Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972) and Simmons v. United States, 390 U. S. 377, 384 (88 SC 967, 19 LE2d 1247) (1968), Grabowski argues that showing the victim the van at the investigatory stop was akin to a “showup” identification of a suspect which was unnecessarily suggestive and resulted in a substantial likelihood of misidentification. We find no basis for applying the identification procedures applicable to suspects in Neil v. Biggers and Simmons v. United States to the victim’s identification of Grabowski’s van. The trial court did not err by refusing to suppress the identification testimony as unreliable.

4. Grabowski contends the trial court erred by refusing to suppress evidence seized from him after his arrest because the initial stop and detention were illegal and his arrest was without probable cause.

Decided August 24, 1998

Reconsideration denied September 3, 1998.

Gregory A. Hicks, James K. Luttrell, for appellant.

Garry T. Moss, District Attorney, Rachelle L. Strausner, Scott T. Poole, Assistant District Attorneys, for appellee.

There is no merit to these contentions. The officers who stopped and detained Grabowski did so based oh information provided to police by the burglary victim that a burglar who just minutes before had broken into her house in the immediate area was driving a white van with a Tennessee license plate on Arnold Mill Road. Immediately after receiving the report, the officers saw a white van with a Tennessee license plate on Arnold Mill Road. An officer who does not have probable cause to make an arrest, but who has a reasonable, articulable suspicion that the law is being violated, may conduct a brief investigative stop of a vehicle to maintain the status quo momentarily while obtaining more information. Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968); Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979). The facts justifying the stop must show that it was made on more than a mere hunch and was not arbitrary or harassing. Sams v. State, 265 Ga. 534, 535 (457 SE2d 812) (1995). The officers in this case acted on specific facts sufficient to create a reasonable suspicion that the driver of the van had been involved in the reported burglary. It was reasonable to stop the van and detain Grabowski long enough for the victim to arrive and determine if she could identify it as the van she saw speeding away from her house after the burglary.

Grabowski’s arrest at the scene of the stop was for the offense , of driving without a driver’s license. This was a valid arrest based on clear probable cause.

Since the initial stop was justified and the subsequent arrest was supported by probable cause, the trial court did not err by refusing to suppress evidence seized pursuant to the arrest.

Judgment affirmed.

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


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0973.
    AUGUSTA EYE CENTER, P.C. v. DUPLESSIE.
    (506 SE2d 242)
   Judge Harold R. Banke.

Augusta Eye Center, P.C. (“AEC”) and Michael D. Duplessie, M.D., a former employee, dispute the enforceability of certain provisions in an employment contract entered between them. AEC appeals the denial of its motion for injunctive relief.

Duplessie, an ophthalmologist then residing in Florida, and AEC executed an employment agreement in May 1996. Under the explicit terms of this contract, Duplessie agreed not to work in certain delineated capacities in ten specified counties, five in Georgia and five in South Carolina for a one-year post-employment period. A “NON-COMPETE AND NON-DISCLOSURE COVENANT” provides in pertinent part: “During the term of Employee’s employment with AEC, and for a period of one (1) year thereafter, Employee covenants and agrees as follows: (a) Employee shall not, without the prior written consent of AEC, either directly or indirectly, on his own behalf or in the service of or on behalf of others, render medical treatment or perform surgery in the field of ophthalmology or ophthalmologic surgery as an employee, partner, officer, executive, managerial employee, director, or shareholder of any entity which competes with AEC in the field of ophthalmology or ophthalmologic surgery. This covenant not to compete shall apply to the counties of Richmond, Burke, Lincoln, McDuffie and Columbia, in the State of Georgia, and the counties of Aiken, Edgefield, Allendale, Barnwell and McCormick in the State of South Carolina (the ‘Area’).”

According to subsection (b): “Employee agrees that during the period of twelve (12) months following termination of his employment with AEC, Employee shall not, on his own behalf or on behalf of any person [or entity] solicit, contact, call upon, communicate with or attempt to communicate with any patient of AEC or any representative of any patient or prospect to the Corporation, with the intent of providing any medical service provided by AEC during the period of two (2) years immediately preceding termination of Employee’s employment with AEC. Provided that the restriction set forth in this subparagraph (b) shall only apply to patients or prospects of AEC or representative(s) of patients or prospects of AEC with which Employee had material contact during such two year period” (Emphasis supplied.) “A ‘Material Contact’ as that term is used herein, exits [sic] between Employee and each patient or potential patient of Corporation if interaction took place between them in an effort to further a business relationship with the Corporation” (Emphasis supplied.)

Before AEC retained Duplessie, AEC had only one physician licensed to practice ophthalmology. While employed by AEC, Duplessie treated patients from each of the ten listed counties, especially patients from Richmond and Aiken counties. Notwithstanding the contractual restrictions, after Duplessie’s employment with AEC ceased in August 1997, Duplessie began working for Dr. Stephen K. VanDerVliet at Carolina Eye Physicians in Aiken County, South Carolina, and at Augusta Surgery Center and America’s Best Contacts & Eyeglasses in Richmond County, Georgia. Since both of these counties were among the proscribed counties, AEC sought damages, injunctive relief, and attorney fees for Duplessie’s violation of the express terms of the employment contract. Finding the non-compete covenant was overbroad and unreasonable as to the scope of permissible employment and as to the affected territory, the trial court deemed it unenforceable and denied injunctive relief to AEC. Held:

AEC contends that the trial court erred in denying temporary injunctive relief. We agree.

The rule that the grant or denial of an interlocutory injunction rests in the sound legal discretion of the trial court has no application when the question, as here, is one of law. Lesesne v. Mast Property Mgmt., 251 Ga. 550, 551 (307 SE2d 661) (1983); Delli-Gatti v. Mansfield, 223 Ga. App. 76, 77 (1) (477 SE2d 134) (1996) (reasonableness of restraint imposed by employment covenant is a question of law). Therefore, we owe no deference to the trial court’s conclusions of law. City of McDonough v. Tusk Partners, 268 Ga. 693, 697 (492 SE2d 206) (1997).

In determining the legality of a restrictive covenant, a court may consider the nature and extent of the business, the situation of the parties and all other relevant circumstances. W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992). A three-element test of duration, territorial coverage, and scope of prohibited activity has evolved as a useful analytical framework for examining the reasonableness of the restrictions as applied to a particular situation. Sysco Food Svcs. &c. v. Chupp, 225 Ga. App. 584, 585 (1) (484 SE2d 323) (1997).

Applying these guidelines, we find that the one-year duration of the non-competition clause is well within the time frame permitted by law. Smith v. HBT, Inc., 213 Ga. App. 560, 563 (4) (445 SE2d 315) (1994). See Pittman v. Harbin Clinic Professional Assn., 210 Ga. App. 767, 769 (1) (437 SE2d 619) (1993).

The territorial restriction was limited to ten specified counties, which were fully identified and fully disclosed to Duplessie at the time he signed the contract. Compare Osta v. Moran, 208 Ga. App. 544, 546-547 (2) (430 SE2d 837) (1993) (geographic limitation placed upon doctor too potentially restrictive because locations of clinics were subject to change). AEC’s evidence showed that it actively advertised and solicited business in each of the ten counties and that Duplessie treated patients from all ten counties. In these circumstances, the territorial limitation is not unduly excessive. See Pittman, 210 Ga. App. at 769 (1).

Finally, we find that the scope of prohibited activities was not overbroad. A non-competition agreement must balance an employee’s right to earn a living without unreasonable restrictions, and an employer’s right to protection from the former employee’s possible unfair appropriation of contacts developed while working for the employer. Chupp, 225 Ga. App. at 586 (1). An “employer has a protectible interest in the customer relationships its former employee established and/or nurtured while employed by the employer [cit.] and is entitled to protect itself from the risk that the former employee might appropriate customers by taking unfair advantage of the contacts developed while working for the employer.” Mouyal, 262 Ga. at 466.

Here, the agreement did not restrict Duplessie from working for any competitor in any capacity, notwithstanding Duplessie’s contention to the contrary. Subsection (a) precluded Duplessie from rendering ophthalmological treatment or surgery in the ten counties where he had actually worked only if, in so doing, he competed with AEG. The agreement did not prohibit Duplessie from practicing medicine or from practicing ophthalmology outside those ten counties. See Saxton v. Coastal Dialysis &c., 220 Ga. App. 805, 808 (3) (470 SE2d 252) (1996). Compare Delli-Gatti, 223 Ga. App. at 77 (covenant foreclosed physician from the practice of pediatric services or other medical care as a physician within Upson County). Plainly, this is not an “any capacity” case. Smith v. HBT, 213 Ga. App. at 562 (2). See McAlpin v. Coweta Fayette Surgical Assoc., 217 Ga. App. 669, 674 (2) (458 SE2d 499) (1995) (upholding non-competition clause which restricted surgeon from practice of medicine or surgery for two-year period within ten specified counties). Accord Chaichimansour v. Pets Are People Too, 226 Ga. App. 69, 71 (1) (485 SE2d 248) (1997).

Notwithstanding Duplessie’s contradictory claim, the non-solicitation clause applied only to patients or prospective patients with whom Duplessie had “material contact,” defined to mean actual interaction undertaken to attempt to further a business relationship with AEC. See Mouyal, 262 Ga. at 466 (2).

Decided September 3, 1998

Jay M. Sawilowsky, for appellant.

Hull, Towill, Norman & Barrett, Patrick J. Rice, David E. Hudson, for appellee.

Moreover, although Duplessie argues that the non-compete clause to which he consented at the outset imposed a greater restriction upon his right to earn a living than was necessary, he failed to support this assertion with admissible evidence. Compare Puritan/Churchill Chem. Co. v. Eubank, 245 Ga. 334, 335 (265 SE2d 16) (1980) (scope of post-employment restrictions was grossly disproportionate to nature of salesman’s job with company). After considering the nature of the medical business at issue here, the situation of the parties, and after applying the three-element framework, we cannot agree that the terms of the non-compete covenant rendered the contract unenforceable as a matter of law. Mouyal, 262 Ga. at 465 (1).

Judgment reversed.

Johnson, P. J., and Smith, J., concur.

       Terms included a $150,000 sadary, five weeks vacation auid sick leave, $4,000 for travel and moving expenses, incentive bonuses, a buy-in option, and other benefits.

       In an interrogatory response, Duplessie stated that he had furnished ophthalmic care at the Richland County, South Carolina location of America’s Best Contacts & Eyeglasses. Duplessie also disclosed that he applied for hospital privileges at Self Memorial Hospital in Greenwood, South Carolina. Greenwood is located in Greenwood County. Neither county appears on the restricted list.


author: Eldridge, Judge.

text:
    A98A1750.
    HALTHON-HOWARD v. THE STATE.
    (506 SE2d 415)
   Eldridge, Judge.

Defendant-appellant Lynnell E Halthon-Howard was arrested on November 9, 1997, and charged with criminal trespass under OCGA § 16-7-21 (b) (3). According to the accusation, Howard remained on the premises of the New Birth Missionary Baptist Church after a church official asked her to leave; the underlying facts which resulted in her arrest are not at issue in this appeal. Following a jury trial on March 27, 1998, Howard was convicted of criminal trespass. Without moving for a new trial, Howard filed this direct appeal pro se. We affirm her conviction.

1. In her first enumeration of error, Howard asserts that the trial court abused its discretion in denying her motion for continuance. However, “[a]ll applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require.” OCGA § 17-8-22. Such grant or denial of a continuance will not be disturbed absent a showing of an abuse of discretion. Brown v. State, 214 Ga. App. 733, 735 (2) (449 SE2d 136) (1994).

Further, in order to secure a continuance based upon the absence of witnesses, the requesting party must demonstrate that he or she has used due diligence in securing the attendance of such witnesses. OCGA §§ 17-8-20; 17-8-25. “Where the witness has not been subpoenaed . . . and where other statutory requirements have not been met, it is not an abuse of discretion to refuse a postponement of the hearing in order to subpoena these persons. [Cit.]” Hulett v. State, 150 Ga. App. 367, 368 (5) (258 SE2d 48) (1979). See also Brown v. State, 169 Ga. App. 520, 521 (1) (313 SE2d 777) (1984); Bryant v. State, 164 Ga. App. 543 (298 SE2d 272) (1982).

The record before this Court clearly supports the trial court’s denial of a continuance. Howard was arrested in November 1997. In a related complaint she filed on November 14, 1997, with the Internal Affairs Section of the DeKalb County Police Department, Howard asserted that church members witnessed the events leading to her arrest. However, these witnesses were never identified, questioned, or subpoenaed, even though more than four months had passed between the November 1997 incident and the pretrial hearing on March 25, 1998.

The record contains a copy of a March 24, 1998 letter from Howard to her counsel demanding that counsel take depositions of all of the State’s witnesses and also demanding a continuance so subpoenas could be issued for, inter alia, every church member in attendance during two church services on November 9, 1997; any other (unnamed) witnesses “that would like to testify on my behalf”; all church “security staff/members”; and “all solicitors, Judges, Attorneys, and all other court officials associated with the litigation of this case to reveal their religious denomination to ensure a fair and just trial.”

At the pretrial hearing the next day, Howard again insisted on a continuance, alleging that she needed the list of all the members of the congregation who gave money to the church on November 9, 1997, so she could identify “fifteen” people who may have witnessed the incidents leading to her arrest; once identified, Howard claimed that she would subpoena some members to testify on her behalf. However, Howard admitted that she did not know the names of any potential witnesses and that she knew only “three or four people” at the church after attending services there for two years. Howard was unable to explain how she would pick out the names of potential witnesses from a list of several thousand people.

In fact, as the trial court noted at the pretrial hearing, Howard was able to identify only one witness that she wanted to subpoena, and Howard admitted that she had not asked the -witness whether or not she was even present in church on the day of the incident. Further, defense counsel told the court that she had been prepared to subpoena the witness, but that Howard had failed to provide her with an address or phone number for the witness.

These facts evince a lack of due diligence in securing the witnesses that supports a denial of a continuance. There was no abuse of discretion.

2. In her second enumeration of error, Howard claims ineffective assistance of counsel, alleging that counsel failed to contact defense witnesses and to prepare a defense. However, Howard failed to raise this issue in a motion for a new trial following her conviction and, therefore, waived her right to raise this issue upon appeal. Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996); Chatman v. State, 265 Ga. 177, 178 (2) (453 SE2d 694) (1995); Brown v. State, 251 Ga. 598, 601 (3) (308 SE2d 182) (1983).

Even absent such waiver, we find that it is unnecessary to remand the issue to the trial court because, as a matter of law, the record does not support Howard’s assertions. See Elliott v. State, 230 Ga. App. 855, 858 (4) (c) (497 SE2d 817) (1998); Anderson v. State, 218 Ga. App. 872, 873 (2) (463 SE2d 502) (1995). “To succeed on a claim of ineffective assistance of counsel, a defendant must show trial counsel’s performance was deficient and that it prejudiced the defendant’s defense so as to deprive him of a fair trial; in the absence of evidence to the contrary, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance. Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188) [(1992)].” (Emphasis omitted.) Elliott v. State, supra, 230 Ga. App. at 858-859 (4) (c). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

The record in this case contains defense counsel’s request for a copy of the accusation and a list of the State’s witnesses, various discovery motions, and numerous requests to charge. There is no transcript of the trial, but the transcript of the pretrial hearing shows that defense counsel told the trial court that she discussed with Howard the practicalities involved in identifying potential witnesses from a long list of church members. Counsel stated that she had explained to Howard the evidentiary problems associated with utilizing character reference letters during trial, while promising Howard that the letters could be used during sentencing, if necessary. Counsel also noted that she had contacted every witness on the State’s list “weeks ago,” and had prepared a “viable” defense, although she declined to expose her trial strategy at the hearing. Therefore, the record in this case does not support Howard’s assertion of counsel’s “total failure” to interview witnesses or otherwise prepare a defense.

Further, Howard is unable to demonstrate that the outcome of her trial would have been different but for counsel’s alleged deficient performance. “The failure of trial counsel to employ evidence cannot be deemed to be ‘prejudicial’ in the absence of a showing that such evidence would have been relevant and favorable to the defendant. Because [Howard] failed to make any proffer of the uncalled witnesses’ testimony, it is impossible for [her] to show there is a reasonable probability [that] the results of the proceedings would have been different.” (Citations and punctuation omitted.) Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995), quoting Ponder v. State, 201 Ga. App. 388 (1) (411 SE2d 119) (1991). See also Brown v. State, supra, 251 Ga. at 600-601 (3); Waddell v. State, 224 Ga. App. 172 (480 SE2d 224) (1996). Accordingly, Howard failed to carry her burden in establishing ineffective assistance of counsel.

Decided September 3, 1998.

Lynnell F. Halthon-Howard, pro se.

Ralph T. Bowden, Jr., Solicitor, Raymond J. Burby TV, W. Cliff Howard, Assistant Solicitors, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A98A2091.
    McCURTY v. THE STATE.
    (506 SE2d 418)
   Eldridge, Judge.

Undrea McCurty was convicted after a jury trial for the offenses of armed robbery and possession of a firearm during the commission of a crime. It is from the denial of his motion for new trial that McCurty appeals.

During the early morning hours of December 2,1997, at approximately 2:00 a.m., McCurty entered the Just Jacky’s convenience store, pointed a gun at employee Diane Thomas, and demanded money. Thomas opened the cash register and, at McCurty’s direction, put the money in a paper bag and gave the bag to McCurty. After checking the register to make sure Thomas had put all the money in the paper bag, McCurty ran from the store. The armed robbery was recorded on videotape and shown to the jury.

Phillip Gordon arrived at Just Jacky’s as Thomas was phoning the police for help. Gordon testified that, as he was driving into Just Jacky’s parking lot, he noticed what appeared to be headlights at the storage building across the road and then saw a small Escort exit the storage area at a high speed.

Shortly after the police dispatch gave a lookout on the armed robbery, Deputy Donald Gibson of the Carroll County Sheriff’s Department spotted a vehicle traveling at a high rate of speed on Highway 166 East; the vehicle matched the description of the vehicle used in the armed robbery. When Deputy Gibson activated his blue lights, the vehicle began to weave across the roadway. Eventually the vehicle pulled over. As Deputy Gibson was removing McCurty from the vehicle, he noticed a blue bandanna, -a blue sweatshirt, and a black hat in the front passenger area of the vehicle. Deputy Gibson placed McCurty under arrest. Deputy Richard Harrison, who assisted Deputy Gibson in the arrest, found a gun hidden underneath the blue sweatshirt and a paper bag which contained money under the front passenger seat.

Both in a statement to police and at trial, McCurty admitted entering Just Jacky’s, pointing a gun at Thomas, and demanding money. At trial, McCurty testified that he had been smoking marijuana all day and was not “thinking about what he was doing.” He further testified that the gun he used would not fire because it had a shell jammed in it and a broken chamber.

In his sole enumeration of error, McCurty claims ineffective assistance of counsel.

“A defendant bears the burden of establishing that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). The trial court’s finding of effectiveness must be upheld unless clearly erroneous. Powell v. State, 210 Ga. App. 409, 414 (6) (c) (437 SE2d 598) (1993). A reviewing court need not address both components of an ineffective assistance of counsel claim if the appellant makes an insufficient showing of one. Thompson v. State, 191 Ga. App. 906 (1) (383 SE2d 339) (1989).” Capers v. State, 220 Ga. App. 869, 871 (470 SE2d 887) (1996).

1. McCurty complains generally of his trial counsel’s failure to object to any of the State’s evidence or motions.

At the motion for new trial hearing, trial counsel testified that, in light of the overwhelming evidence, it was part of his overall trial strategy to convince the jury to find McCurty guilty of the lesser included offense of robbery by intimidation. Trial counsel further testified that “I felt like it would be an error to insult the intelligence of the jury by challenging things that I just didn’t feel like we could succeed in challenging and ultimately getting their sympathy more by being straight up and saying yes, this is what happened, but do this for us.”

“Trial strategy and tactics do not equate with ineffective assistance of counsel. The fact that [McCurty] and his present counsel disagree with the decisions made by trial counsel does not require a finding that [McCurty’s] original representation was inadequate.” (Citations and punctuation omitted.) Nihart v. State, 227 Ga. App. 272, 273 (488 SE2d 740) (1997).

Further, McCurty failed to point to any specific instances during the trial where he contends trial counsel should have objected. Therefore, since McCurty “has failed to show the evidence, even if objected to, was inadmissible, the failure to properly object does not establish ineffective assistance of counsel.” Brinson v. State, 191 Ga. App. 151, 155 (381 SE2d 292) (1989).

2. McCurty also points to the fact that trial counsel did not enter any physical evidence into evidence. However, McCurty does not state what physical evidence, if any, existed that trial counsel should have placed into evidence or show any prejudice to his defense. Therefore, McCurty has failed to meet his burden of establishing that his trial counsel’s performance was deficient in this regard.

3. McCurty also argues that his trial counsel failed to file any motions on his behalf. “[T]he failure of trial counsel to file pretrial motions demanding access to evidence is clearly harmless where, as in the case sub judice, the defense has obtained the informal cooperation of the prosecutor to review the State’s file.” (Citations and punctuation omitted.) Johnson v. State, 216 Ga. App. 858, 859 (456 SE2d 251) (1995).

4. McCurty’s final argument is that his trial counsel failed to object to the trial court’s recharge on the definitions of armed robbery and robbery by intimidation.

At the close of the trial, as part of the jury charge, the trial judge gave the standard jury charges on the definitions of armed robbery and robbery by intimidation contained in Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.), p. 116. After beginning its deliberations, the jury requested that they be allowed to see these definitions. Based on the jury’s question, the State requested that the jury be recharged on the definitions of armed robbery and robbery by intimidation and, as part of the recharge on the definition of armed robbery, that the jury be given the following additional charge regarding an offensive weapon: “A gun when pointed at another person in a threatening manner, whether loaded or unloaded, is a deadly weapon.” The trial judge instructed the jury that he was not allowed to give them the requested definitions in writing, but that he would read the definitions of armed robbery and robbery by intimidation again. On recharge, the trial court gave the standard jury charges, but during the charge on armed robbery the trial court deleted the sentence, “The character of a weapon may be established by direct or circumstantial evidence,” and inserted in lieu thereof the sentence, “A gun when pointed at another person in a threatening manner, whether loaded or unloaded, is a deadly weapon.” Trial counsel did not specifically object to this charge or preserve objections to the charge in general.

“The fact that [trial] counsel made no objections to the charge obviously establishes no lack of effectiveness on his part absent some deficiency or impropriety in the charge which was harmful to [McCurty].” (Citation and punctuation omitted.) Abreu v. State, 206 Ga. App. 361, 362-363 (425 SE2d 331) (1992). “On appeal charges must be examined and considered in their totality. [Cit.]” Krebsbach v. State, 209 Ga. App. 474, 475 (433 SE2d 649) (1993). The trial court’s charge to the jury as a whole was a correct statement of the law. Based on the jury’s question, on recharge the trial judge tailored the charge on the definition of armed robbery more specifically to the evidence. “Trial counsel’s failure to object does not demonstrate his ineffectiveness, because there was no reversible error.” Abreu v. State, supra at 362.

Decided September 3, 1998.

Daniel Conaway, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: McMurray, Presiding Judge.

text:
    A98A1145.
    A98A1146.
    GUINN TRANSPORT, INC. v. CANAL INSURANCE COMPANY. CLEVELAND et al. v. CANAL INSURANCE COMPANY.
    (507 SE2d 144)
   McMurray, Presiding Judge.

In this declaratory judgment action, the trial court granted summary judgment to plaintiff Canal Insurance Company (“Insurer”), limiting insurance coverage under a uniform motor carrier liability policy issued by the Insurer to defendant-appellant Guinn Transport, Inc. (“Guinn Transport”) for injuries received by defendant-appellants Sara Belk Cleveland and William Moss when they were front seat passengers in a tractor-trailer leased by Guinn Transport and driven by Guinn Transport’s agent, James Ussery. The tractor-trailer overturned on a curve, and the passengers were hurt.

After Sara Belk Cleveland and William Moss sued Guinn Transport, the Insurer sought a declaration of no coverage per an “OCCUPANT” exclusion providing that “Bodily Injury Liability does not apply to Bodily Injury including death at any time resulting therefrom, sustained by any person while in or upon, entering or alighting from the automobile. . . . It is further agreed that, in the event the [insurance] company shall, because of provision of the Federal or State statutes become obligated to pay any sum or sums of money because of such bodily injury or death resulting therefrom, the insured agrees to reimburse the [insurance] company. . . .” It is stipulated that Guinn Transport is a motor common carrier within the meaning of OCGA § 46-1-1 et seq. and that a certification of this policy was filed with the Georgia Public Service Commission (“PSC”), “as proof of financial responsibility,” in compliance with OCGA § 46-7-12 (a).

The trial court concluded this exclusion is not against public policy and applied it beyond the statutory minimum limits of coverage as “established by Georgia’s compulsory insurance laws, O.C.G.A. §§ 33-34-4 and 40-9-2.” The trial court expressly ruled that the “mandatory minimum limits of $100,000 per person/$300,000 per accident set forth in PSC Rule 1-8-1-.01 do not apply[; and that] defendants] Cleveland and Moss are not within the ‘class’ of persons intended to be protected by the common carrier provisions of Title 46[, because] Cleveland and Moss were passengers in a freight or commercial vehicle and not a passenger carrier.” Pursuant to OCGA § 9-11-56 (h), in Case No. A98A1145, Guinn Transport appeals the grant of summary judgment to the Insurer, and in Case No. A98A1146, Sara Belk Cleveland and William Moss also appeal. These appeals raise identical enumerations of error, and so are hereby consolidated for disposition in a single opinion. Held:

In seven related enumerations of error, defendants Guinn Transport, Sara Belk Cleveland, and William Moss contend the trial court erred in enforcing the policy exclusion above the minimum statutory requirements as established by OCGA § 40-9-2 (5) (A), rather than the minimum compulsory coverages established by PSC Rule 1-8-1-.01. We agree and reverse.

1. The salient circumstance here is that the Insurer issued a uniform motor carrier liability endorsement. By this act, the Insurer expressly, as well as necessarily, “amend[ed] the policy to provide insurance for automobile bodily injury and property damage liability in accordance with the provisions of such law or regulations to the extent of the coverage and limits of liability required thereby. . . .” “Accordingly any provision in the policy of insurance, in so far as it may conflict with the plain provisions of the statute, [OCGA § 46-7-12, or any validly promulgated PSC regulations pertaining thereto,] must give way, and are superseded by the statutory provisions.” Great American Indem. Co. v. Vickers, 183 Ga. 233, 237 (188 SE 24).

2. OCGA § 46-7-12 (a) requires proof of financial responsibility in the form of a bond, an indemnity insurance policy, or through self-insurance if permitted by the PSC, to protect “the public against injury proximately caused by the negligence of [a] motor common or contract carrier, its servants, or its agents.” The PSC is expressly authorized to determine the amount and limitations of such financial responsibility for the benefit of “any person who shall sustain actionable injury or loss protected thereby.” OCGA § 46-7-12 (b). Pursuant to this authority, the PSC promulgated Rule 1-8-1-.01, which “established the minimum statutory compulsory liability limits for motor carriers to be $100,000 per person and $300,000 per occurrence.” Kinard v. Nat. Indem. Co., 225 Ga. App. 176, 177 (1), n. 2 (483 SE2d 664), aff’d, Ross v. Stephens, 269 Ga. 266 (496 SE2d 705).

Decided August 19, 1998

Reconsiderations denied September 4, 1998

William A. Turner, Jr., for appellant (case no. A98A1145).

Champion & Holbird, Thomas R. Holbird, Jr., Northcutt, Edwards, Gordon & Feingold, Claudia E. Gordon, Jason R. Schultz, Joseph H. King, Jr., for appellants (case no. A98A1146).

McNatt, Greene & Thompson, Hugh B. McNatt, Troy L. Greene, Gray & Gilliland, T. Cullen Gilliland, Thomas J. Lehman, for appellee.

3. Nevertheless, the Insurer insists that because defendants Sara Belk Cleveland and William Moss were passengers in a freight carrier and not a passenger carrier, the applicable limits of financial responsibility for bodily injury or death are determined under the Motor Vehicle Safety Responsibility Act. This amounts to $15,000 per person and $30,000 for two or more persons injured in one accident. OCGA § 40-9-2 (5) (A). We disagree.

The class of persons protected by PSC Rule 1-8-1-.01 is defined as “any person who sustains actionable injury or loss as a result of the negligence of the common carrier or its agents. Great American Indem. Co. v. Vickers, 183 Ga. 233, 236 [supra].” Ross v. Stephens, 269 Ga. 266, 267, supra. That includes the permissive passengers of Guinn Transport’s driver in this instance, defendants Sara Belk Cleveland and William Moss. Compare Homick v. American Cas. Co., 202 Ga. App. 831, 832 (415 SE2d 669), where that injured plaintiff, “as [the] operator of the truck [himself, was held to be] not among the class protected by OCGA § 46-7-12. . . .” The trial court erred in failing to apply the minimum compulsory liability limits established by PSC Rule 1-8-1-.01 as the bodily injury liability limits incorporated into the Insurer’s policy through its uniform motor carrier bodily injury and property damage liability insurance endorsement.

4. Remaining considerations have been rendered moot by our holdings in Divisions 1, 2, and 3.

Judgments reversed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A1464.
    ZONE ENTERPRISES, INC. v. GEO. L. SMITH II GEORGIA WORLD CONGRESS CENTER AUTHORITY.
    (506 SE2d 424)
   Andrews, Chief Judge.

Zone Enterprises, Inc. appeals from the judgment entered on a jury verdict awarding a sum as just and adequate compensation for the taking of Zone’s leasehold interest in property condemned by the Geo. L. Smith II Georgia World Congress Center Authority to create a public urban park known as Centennial Olympic Park. Zone claims the trial court erred by granting the Authority’s pretrial motion in limine seeking exclusion of certain evidence of losses incurred by Zone in the taking.

Zone leased property in which it operated a nightclub at 187 Walton Street in Atlanta. The property was located on .33 acre of land lying within a larger tract of land approximately 21 acres in size which the Authority was empowered to acquire by purchase or eminent domain to create the park. Pursuant to the Authority’s petition to condemn the .33-acre tract filed under OCGA § 22-2-100 et seq., a special master awarded Zone $150,000 for its leasehold interest on May 30, 1995. Zone appealed from the award to the superior court for a jury trial on the issue of just and adequate compensation. After a trial, the jury awarded Zone a total of $182,000. It is undisputed that the date of taking of the property was July 20, 1995, the date the Authority paid the original $150,000 award into the registry of the court. It is also undisputed that the .33-acre tract of land on which Zone held its leasehold interest was one of the last tracts of land purchased or taken by the Authority to complete its acquisition of the 21-acre tract comprising the park.

In a pretrial motion in limine, the Authority sought to prevent Zone from introducing certain evidence in support of its claim for compensation for the taking of its leasehold and for business damage. In its order granting the motion in limine, the trial court “exclude[d] all evidence of Zone’s damages based on the premise that Zone’s property was unique or enjoyed an increase in value as a result of its status as one of the last parcels acquired for inclusion in the Park.” The trial court found that the Authority was not seeking to exclude evidence that the condemned property had an enhanced value based on an announcement that the 21 acres was to be acquired as a park, but “[r]ather [the Authority was] only seek[ing] to exclude evidence of any enhanced value or uniqueness Zone’s property may have enjoyed because of its position near or at the end of the Park’s condemnation process.” The trial court concluded that: ‘When various parcels of a multi-tract property are being condemned for the same public improvement, the sequence of when each parcel is condemned generally is the result of many factors wholly unrelated to the parcel’s value. . . . Because of the arbitrary nature of the scheduling [of each condemnation action], the sequence in which parcels in this type of situation are condemned cannot create value.”

The trial court’s order had the effect of excluding a broad range of potential evidence of value and was contrary to the holding of the Supreme Court in Hard v. Housing Auth. of Atlanta, 219 Ga. 74 (132 SE2d 25) (1963). In Hard, the Supreme Court reiterated that the requirement of the Georgia Constitution for payment of just and adequate compensation for private property condemned for public use mandates that such compensation cover the value of the property at the time of its taking. Id. at 75-76. Applying this rule, the Court in Hard held that compensation required to be paid for the subject property was the value of the.property at the time of the taking, including any enhanced value the property may have acquired as a result of the fact that it was being condemned as part of a public project in the area. Id. at 76r80. For example, the Court noted that, in estimating the market value of property condemned as part of a public project, it is proper to consider not only the condition of the property at the time of its taking and the use to which it is then applied by the owner, but also all the capabilities and uses to which it may be applied or for which it is adapted as part of the project. Id. at 80. The Court further stated that “[w]hile it might be difficult to see how knowledge of this impending taking of this particular property for urban renewal would enhance its value, yet that is conceivable, and testimony to that effect can not be rejected. Anything that actually enhances the value must be considered in order to meet the demands of the Constitution that the owner be paid . . . adequate and just compensation [for the value of the property at the time of the taking].” Id. at 80.

The trial court’s broadly worded order in the present case had the erroneous effect of preventing Zone from producing evidence, if it could, that the property at issue had acquired enhanced value or uniqueness at the time it was taken, regardless of whether it was condemned as one of the first or last tracts to complete the 21-acre park. There is no merit, however, to Zone’s argument that the trial court’s order was erroneous for the additional reason that it prevented Zone from producing evidence of enhanced value or business losses based on the assumption that Zone could have continued to operate its nightclub in the midst of the park. Obviously, this assumes the impossible. As the Supreme Court stated in Hard, this argument “reject[s] the standard of market value in favor of a hypothetical value based on the utterly fallacious assumption that [the property] will remain in private ownership adjacent to the improvement. . . .” Id. at 80.

Although the trial court erred in granting the motion in limine, there is no evidence in the appellate record showing the enhanced value or business loss that Zone was prevented from introducing at trial. Because Zone specifically stated in its notice of appeal that “[n]o part of the transcript of evidence and proceedings is to be included within the record on appeal,” we are unable to determine if a proffer of excluded evidence was made at trial. The only evidence produced by Zone to show what it would have produced at trial absent the trial court’s order granting the motion in limine was the deposition testimony of an appraiser, James H. Pritchett.

Pritchett testified that, on the date of the taking, the property had unique value by virtue of its location in the center of the park. He gave no testimony as to the amount of any enhanced value or business loss based on the uniqueness of the property. Furthermore, in explaining how he concluded the property had unique value, Pritchett testified that: “I do think that it does have a unique value by virtue of being right in the center of the park, that it was there, that it was planned on that; and if this property had not been taken, someone would have paid a great deal of money to have this piece of property located where it was.” In essence, Pritchett’s opinion that the property had unique value was based on the fallacious assumption that it could continue to operate as a nightclub at that location in the middle of the park. However, when confronted with the practical reality that the property had been condemned as part of the park, Pritchett conceded that knowledge the property was being condemned for the park would cause it to sell at “a very reduced price.”

Since there is no evidence in the record that Zone was erroneously prevented from introducing evidence it was entitled to produce in support of its claim for compensation, Zone has not demonstrated that it was harmed by the trial court’s order granting the motion in limine. Estate of Sam Farkas, Inc. v. Dougherty County School System, 178 Ga. App. 135 (342 SE2d 501) (1986); Dean v. Oglethorpe Power Corp., 179 Ga. App. 528 (346 SE2d 906) (1986). To obtain a reversal, an appellant must show by the record on appeal, not only error, but harm. Estate of Sam Farkas, 178 Ga. App. at 135; Bagley v. CSX Transp., 219 Ga. App. 544, 547 (465 SE2d 706) (1995).

The case of Panos v. Dept. of Transp., 162 Ga. App. 53 (290 SE2d 295) (1982), cited by Zone, is not authority to the contrary. In Panos the appellants claimed the trial court erred by granting a motion in limine excluding certain evidence, and we addressed the claim that the error was not preserved for review because no evidence tendered by the appellants at the trial was excluded. We concluded that “appellants need not have attempted at trial to introduce evidence ruled inadmissible in a pre-trial motion in limine in order to preserve that ruling for appeal.” Id. This ruling does not obviate the need to proffer or otherwise make part of the record evidence which an appellant later claims was erroneously excluded by the trial court in a pretrial motion in limine. In the absence of any such evidence in the record, this Court is unable to review a claim that such evidence exists and that Zone was harmed by its exclusion.

Decided September 4, 1998.

McKee & Barge, Patrick W. McKee, for appellant.

Thurbert E. Baker, Attorney General, Zachary & Segraves, Kenneth L. Levy, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Andrews, Chief Judge,

text:
    A97A0172.
    FREYER et al. v. SILVER.
    (507 SE2d 7)
   McMurray, Presiding Judge.

In this slip-and-fall case, plaintiff Linda Silver sought to recover for personal injuries she sustained in a parking lot owned by defendants Fred R. Freyer, Jr., Richard J. Uberto, and Domus Properties, a Georgia partnership (“the Domus defendants”), as she was approaching defendant Folks, Inc.’s restaurant in Smyrna, Georgia. According to the complaint, plaintiff fell and “seriously injure[d] her foot and ankle because of a dangerous and defective storm drain which was unsafely placed and constructed. Defendants and their employees [allegedly] knew by virtue of a similar incident which preceded the injury suffered by Plaintiff. . . that the storm drain in the parking lot created an unreasonable risk of injury to invitees. . . .” In their respective answers, defendants denied the material allegations. After discovery, the Domus defendants, as well as defendant Folks, Inc., moved for summary judgment, contending the hazard complained of “was open, obvious and should have been apparent to [plaintiff], such that her failure to exercise ordinary care for her own safety precludes recovery. . . .” Viewed in the light most favorable to plaintiff as the non-movant, the record authorizes the following recitation of facts: On May 23, 1992, plaintiff went to a Po Folks restaurant operated by defendant Folks, Inc. and located in a shopping center owned by Domus Properties. Defendants Freyer and Uberto are the general partners of Domus and had purchased the shopping center in 1991, after its construction. Prior to the purchase, defendant Freyer retained architect Gary Coursey and the two walked the property so Coursey could evaluate it from a structural standpoint. At his deposition, defendant Freyer testified that the Domus defendants were responsible for striping the parking lot, paving the parking lot, and patching the parking lot. Under the terms of the lease with defendant Folks, Inc., it was “[provided that reasonable access to the Premises and the parking facilities in the Shopping Center are not materially and adversely reduced or impaired, [the Domus defendants retained the right to] increase, or change the dimensions or location of the walkways, buildings and parking areas from time to time . . . in any manner whatsoever. . . .” But defendant Freyer “thought that the Po Folks people have kind of maintained that area [around the restaurant].”

Plaintiff Silver had been to this Po Folks before, but had eaten inside. May 23, 1992, was “a pleasant day. . . .” Near dinner time and while it was still daylight, plaintiff Silver went to Po Folks to order take out. She parked her car in one of two spots designated for “To Go” parking. The designated spot in which she parked was parallel and directly adjacent to a catch basin for draining water from the parking lot. She pulled straight into the parking place, such that the catch basin ran along the passenger side of her car with a manhole cover directly above the basin in the sidewalk. She exited from the driver’s side, went in, ordered her food, and then returned to the car to wait for it, since her dog remained in the car. She did not cross the catch basin either going into the restaurant or coming out. After returning to her car, plaintiff stood by the passenger side, next to the catch basin. When she fell, plaintiff’s feet were pointing toward the catch basin.

Asked what caused her to fall, plaintiff Silver testified as follows: “I must have just shifted my weight or moved my foot a little, and all of a sudden I went sliding down with both feet into this area. . . .” She “went down so fast on both feet, and . . . landed on [her] butt with both feet on the ground and in a kind of a sitting position.” It was now “like early dusk.” Plaintiff could not say whether the light conditions had anything to do with her fall. When queried why she fell, plaintiff answered: “Because there was a hole there. There was an area that was slanting down that I did not see, and I couldn’t see. ... It looked straight.” (Emphasis supplied.) When asked if anything prevented her from seeing the area that slanted down, plaintiff responded: “There was no way I could see it. It looked as if it was a very safe place and a flat place to stand.” Plaintiff had “walked by and looked and was standing there, and everything seemed perfectly safe to [her].” Asked about the differentiation of color between blacktop and concrete, plaintiff acknowledged a distinction, “but [insisted that] if you go back to where there is a shadow, to me, that night it did not stand out as it does in contrast in this picture. And for the color, that’s what you’re talking about, the color.” (Emphasis supplied.)

Defendants’ Exhibit B consists of two color photographs showing the catch basin. Exhibit C shows that the lip is neither flat nor gradually sloping but declines steeply into the drainage area. While the concrete lip is lighter than the parking area of black asphalt, that lip has become darkened and dingy with time.

In reply to defendants’ motions, plaintiff Silver submitted the affidavit of Seymour W. Liebmann, a licensed professional engineer, who deposed that the catch basin was defectively designed and constructed. Specifically, the interface between the “To Go” parking space and the adjacent storm drain was unsafe because the level parking lot asphalt “drops precipitously into the catch basi[n] at a very sharp and unsafe angle.” Engineer Liebmann further deposed that the space immediately adjacent to the catch basin “should not have been used as a parking space . . .” because of the sharp drop-off at the edge of the pavement; because a rough joint exists, due to this sudden change in elevation, and because there were no safety markings.

The trial court denied defendants’ motions for summary judgment, but certified its order for immediate review. The joint application of all defendants for interlocutory review of that denial was granted, and in Freyer v. Silver, 227 Ga. App. 253 (488 SE2d 728) (1997), a majority of this Court reversed, concluding the catch basin into which plaintiff fell was a static open and obvious condition of which the owner had no duty to warn her. The Supreme Court of Georgia granted plaintiff’s petition for certiorari, vacated this Court’s prior judgment, and remanded the case to this Court for reconsideration in light of Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). Held:

1. Pursuant to the direction of the Supreme Court of Georgia, our prior judgment, reported at 227 Ga. App. 253, supra, is vacated.

2. Contrary to the dissent’s unsupported assertion, this case does not involve the so-called first prong of the test for liability established by Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). It is a defendant’s actual or constructive knowledge of the alleged hazard which constitutes the first prong. Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (1) (498 SE2d 748) (whole court). See also Robinson v. Kroger Co., 268 Ga. 735 (1), 736, supra. “ ‘The liability of a proprietor under (OCGA § 51-3-1) which results from failure to keep the premises [and approaches] safe always depends on notice of the danger except where notice is presumed, as in cases of defective construction.’ Veterans Organization v. Potter, 111 Ga. App. 201, 205 (141 SE2d 230) (1965).”Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812, 813 (1), 814 (318 SE2d 235). Moreover, the owner/occupier’s duty to exercise ordinary care “includes inspecting the premises to discover possible dangerous conditions of which the owner/ occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises. [Cits.]” Robinson v. Kroger Co., 268 Ga. 735 (1), 740, supra.

The case sub judice involves allegedly defective construction. Knowledge that the designated “To Go” parking space closely adjoins the deceptively steep catch basin is therefore presumed on the part of the defendant owners and the defendant occupier, when considering their motions for summary judgment. Consequently, the applicable inquiry is directed to the second prong: whether the record shows plainly, palpably and without dispute that plaintiff had knowledge of the hazard equal or superior to that of defendants or, would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety. Each defendant retains “the evidentiary burden as to the issue of the plaintiffs negligence after it has been established or assumed for purposes of a motion for summary judgment that the defendant was negligent. . . .” Robinson v. Kroger Co., 268 Ga. 735, 743 (2), 746 (2) (b), 748, supra.

3. Relying on MARTA v. Fife, 220 Ga. App. 298 (469 SE2d 420), defendants contend the trial court erred in denying summary judgment, arguing the “catch basin in question is ‘transparently obvious.’ There is a [purportedly] clear contrast between the curbing and the blacktop. The hole and slope are wide and obvious. Had Ms. Silver only looked down, she would have seen the danger and avoided it. However, the record shows she did not look.”

Recognizing the very close factual similarity between MARTA v. Fife, 220 Ga. App. 298, supra, and the case sub judice, we are nevertheless bound to follow the applicable and controlling authority of Robinson v. Kroger Co., 268 Ga. 735 (1), 743, supra, where “the Supreme Court of Georgia ‘disapprove(d) of the appellate decisions which hold as a matter of law that an invitee’s failure to see before falling the hazard which caused the fall constitutes a failure to exercise ordinary care.’ Id. That Court held ‘an invitee’s failure to exercise ordinary care is not established as a matter of law by the invitee’s admission that [s]he did not look at the site on which [s]he placed [her] foot or that [s]he could have seen the hazard had [s]he visually examined the [ground] before taking the step which led to [her] downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.’ Id. at 748 [(2) (b)].” Sadtler v. Winn-Dixie Stores, 230 Ga. App. 731, 732-733 (498 SE2d 101) (1998), cert. denied.

In the case sub judice, the photographic evidence indicates the color contrast between the level black pavement and the precipitously steeply sloping concrete that has become dingy and weathered is not so stark as defendants insist. Plaintiff pointed this out in her deposition. Moreover, such color contrast as exists reveals nothing about the sudden and deceptive declivity of the catch basin. Whether the manhole cover embedded in the concrete over the catch basin should have alerted plaintiff remains a question for the jury to determine, for it is the plaintiff’s knowledge of the specific hazard precipitating a slip and fall which is determinative, not merely her knowledge of the generally prevailing hazardous conditions or of hazardous conditions which plaintiff observes and avoids. Gourley v. Food Concepts, 229 Ga. App. 180 (493 SE2d 587) (whole court). “The ‘plain view’ doctrine is the equivalent of the ‘constructive knowledge’ aspect of voluntary negligence on the part of the plaintiff.” Robinson v. Kroger Co., 268 Ga. 735 (1), 743, supra. Reasonable minds can differ as to whether plaintiff should have seen and avoided the hazard presented by the sharp, unmarked drop-off to the catch basin. We hold the case sub judice falls within the general rule, as recently pronounced by the Supreme Court of Georgia: “ ‘[I]ssues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication . . . but should be resolved by trial in the ordinary manner. (Cit.)’ ” Robinson v. Kroger Co., 735 (1), 739, supra. The trial court correctly determined that genuine issues of material fact remain for jury resolution.

Judgment affirmed.

Johnson, R J., Smith, Ruffin and Eldridge, JJ, concur. Andrews, C. J., and Beasley, J., dissent.

Andrews, Chief Judge,

dissenting.

I respectfully dissent because I believe that the catch basin into which Silver fell was a static open and obvious condition of which the owner had no duty to warn her.

This case deals with the first prong of Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980), the owner’s duty to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner has superior knowledge, as discussed in Robinson v. Kroger Co., 268 Ga. 735, 736-740 (493 SE2d 403) (1997), and is therefore not affected by the changes in summary judgment evidentiary burdens made in Robinson, supra at 748, regarding the second prong of Alterman Foods, the plaintiff’s lack of knowledge of the hazard or distraction by the defendant.

As acknowledged by the majority, prior to purchasing the shopping center, Freyer had retained architect Coursey and the two walked over the property so Coursey could evaluate it from a structural standpoint. No problems in design, construction or maintenance were noted. As reflected by the affidavit of Liebmann, Silver’s expert engineer, the claimed defects are of the type which required architectural or engineering expertise to comprehend, which neither Freyer nor the other defendants possessed. Liebmann opined that the catch basin was defectively designed and constructed because the interface between the parking space and the storm drain was too steep an angle. Of course, none of the defendants had anything to do with the design and construction of the catch basin. Additionally, Liebmann stated that the danger “would be obvious ... to any user of the parking lot who could plainly see and become aware of the sharp drop.” In his opinion, Silver did not see the danger “because of the shading caused by her car which prevented her from seeing and appreciating the sharp drop off. . . .” The affidavit, however, does not address the significance of the manhole cover in relation to the culvert and drain opening.

In addition to the facts set out in the majority, Silver acknowledged that she was familiar with catch basins and that one was located near her residence.

Asked what caused her to fall, Silver testified as follows: “I must have just shifted my weight or moved my foot a little, and all of a sudden I went sliding down with both feet into this area. . . .” “There was some shadow cast from the sun in the west. ... I know that there was a shadow here. ... It was like early dusk. Q. Did you have any difficulty seeing where you were going? A. No. . . .” “Q. Do you believe the light conditions had anything to do with your fall? A. I, I really don’t know. Q. Do you know why you fell? A. Because there was a hole there. There was an area that was slanting down that I did not see, and I couldn’t see. ... It looked straight. . . . There was no way I could see it. It looked as if it was a very safe place and a flat place to stand. Q. Before the fall had you looked at this area? A. I walked by and looked and was standing there, and everything seemed perfectly safe to me. . . .” Asked about the differentiation of color between blacktop and concrete, Silver acknowledged a distinction, “but I believe if you go back to where there is a shadow, to me, that night it did not stand out as it does in contrast in this picture. . . .” “I don’t consider when I fell late evening, but I do feel that there was a shadow here which made it look different than it does in this picture.”

The only possible reason Silver gave for not being able to see the sloping hole in the catch basin, which was made of concrete lighter than the parking area of black asphalt, was that the sun was setting and her car was parked so that a shadow was cast on that sloping concrete portion. The photos submitted by Silver of the spot where she fell, with her car parked in approximately the same location as the night she fell, clearly indicate, however, that even when the opening of the catch basin is shadowed, the manhole cover on the catch basin, which Silver was facing before her fall, is visible, indicating the location of a culvert for draining water.

(a) First, it must be emphasized that the catch basin into which Silver fell was not a “defect” in the property. It was a planned feature incorporated into the design of the project by the original developer in order to divert rainwater from the premises. Upon purchasing the property, the owner, Domus, had exercised the ordinary care required of an owner and had it inspected and been advised of no problems or “defects” in it. The catch basin cannot, therefore, be said to create an “unreasonable risk of harm” from which the owner/occupier must use ordinary care to protect invitees based on its superior knowledge as discussed in Robinson, supra at 740. The catch basin’s primary purpose was to avoid the accumulation of rainwater on the asphalt in an area where vehicles were invited to park, leaving oily substances which vehicles leave in such areas, and which invitees were invited to traverse. Had there not been a catch basin where one needed to be in such a situation, the owner/occupier risked exposure to claims based on standing water and its attendant hazards, including water mixing with the oily substances in the parking area. See, e.g., Hardeman v. Spires, 232 Ga. App. 694 (503 SE2d 588) (1998) (fall on wet tile on porch); Cleveland v. Snowdrop Properties, 232 Ga. App. 447 (501 SE2d 546) (1998) (fall on wet leaves on sidewalk); Dumas v. Tripps of North Carolina, 229 Ga. App. 814 (495 SE2d 129) (1997) (restaurant patron’s fall on ice while getting out of car in parking lot); Arwood v. Tzen, 224 Ga. App. 722 (481 SE2d 874) (1997) and Van Dyke v. Emro Marketing Co., 211 Ga. App. 744 (440 SE2d 469) (1994) (both involving customers falling due to mixed oil products and water in convenience store parking lots).

(b) Further, there can be no question that the catch basin, whether defective or not, was an open and obvious static condition and the only possible reason given by Silver as to why she could not see the hole in the catch basin was a shadow created by her own car. This case is factually very similar to and controlled by MARTA v. Fife, 220 Ga. App. 298 (469 SE2d 420) (1996) (whole court). There, as here, a drainage culvert was involved. Fife stepped off of a curb formed by the top of the catch basin and into the culvert which she did not see because she was looking at the door of her sister’s car.

Here, as in Fife, “[s]ince the drainage depression was open and obvious, [Po Folks, Freyer and Uberto were] under no duty to warn. An owner or occupier of land has a duty of exercising ordinary care to keep the premises and approaches safe for invitees. OCGA § 51-3-1. The basis of the owner’s liability is a superior knowledge of the condition that subjected the invitee to an unreasonable risk of harm. [Cit.] The hazard in this case is a ‘static’ condition which is not dangerous unless someone fails to observe it and steps into it. [Cit.] In cases involving static conditions, ‘if the invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.’ (Citation and punctuation omitted.) Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379) (1992). Also, we have held that where there is nothing to obstruct or interfere with the invitee’s ability to see the static defect, the owner is justified in assuming that the visitor will see it and realize the risks involved. Crenshaw v. Hogan, 203 Ga. App. 104, 105 (416 SE2d 147) (1992).” Fife, supra at 300 (2). See also Tollman v. Zamani, 224 Ga. App. 518 (481 SE2d 232) (1997) (concrete block, approximately ten inches high and thirty inches wide with four metal bolts protruding from the top approximately six inches, held to be open and obvious static condition in parking lot).

Certainly as common, if not more so, are catch basins of the type involved here, as acknowledged by Silver. See Fife, supra; Sullenberger v. Grand Union Co., 201 Ga. App. 194 (410 SE2d 381) (1991) (use of concrete dividers or bumpers in a parking lot does not constitute negligence).

In my opinion, both Po Folks and the owners of the shopping center were entitled to summary judgment. See Poythress v. Savannah Airport Comm., 229 Ga. App. 303, 306 (494 SE2d 76) (1997) (tripping on open and obvious handicapped ramp); Anderson v. Turton Dev., 225 Ga. App. 270, 273 (2) (483 SE2d 597) (1997) (operator of inn entitled to summary judgment although owner, which designed and constructed allegedly defective handicapped ramp, was not). Here, there is no allegation that the owners, Domus and its partners, had anything to do with the design or construction of the catch basin, nor is there any evidence of any failure to maintain the basin or to provide adequate ingress and egress to the restaurant.

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

Decided August 19, 1998

Reconsideration denied September 8, 1998

Bach, Hulsey & Carver, Robert J. Hulsey, Dermer & Black, Stephen F. Dermer, for appellants.

Warshauer & Woodruff, Michael J. Warshauer, Michael R. Goldberg, for appellee.

       As stated above, Liebmann’s only claim of defect was the improper slope in the catch basin as constructed, for which Domus had no responsibility and of which, as far as the record reflects, neither Domus and its partners nor Po Folks was aware.

       Silver does not say that she did not see the catch basin, only that she did not notice the sharp slant of the intake. Therefore, she chose to stand beside what she knew to be a water intake.


author: Smith, Judge.

text:
    A98A0912, A98A0913.
    WOLFF et al. v. PROTEGE SYSTEMS, INC.; and vice versa.
    (506 SE2d 429)
   Smith, Judge.

Protege Systems, Inc., brought suit against Todd Wolff and his present employer, DP Solutions, Inc., alleging violations of covenants against competition and disclosure of confidential information in an employment contract Wolff executed while employed at Protege. Protege sought injunctive relief and damages. The trial court did not rule on damages, but entered an order finding that Georgia law applies in construing the contract and granting in part and denying in part Protege’s requests for injunctive relief. All parties appeal.

In the main case, Wolff and DP appeal from the trial court’s grant of injunctive relief; in the cross-appeal, Protege appeals from other rulings and omissions in the trial court’s order. We find that the trial court correctly ruled that Georgia law applies, but we conclude that the restrictive covenants are overbroad and unenforceable and reverse those portions of the trial court’s order granting injunctive relief. Because the covenants are unenforceable, we affirm both the trial court’s refusal to enforce those provisions in favor of Protege and its refusal to award Protege attorney fees.

The record shows that both Protege and DP are part of a small niche industry providing consulting and support services to business customers using computer software developed and sold by Synon, Inc. Wolff was an employee of Synon, providing consulting services, in 1995 and 1996. Protege, an Illinois corporation authorized to do business in Georgia, hired Wolff away from Synon, and notwithstanding an employment contract with Synon containing a one year noncompete clause, instructed him to begin offering services for Protege in a substantially similar geographical territory. Wolff left the employ of Protege in February 1997 and began working for DP Solutions.

The employment agreement Wolff executed with Protege includes several clauses relevant to this action. In its order, the trial court did not detail its analysis of the various clauses or specify which clauses, if any, it found unenforceable. Because Wolff contends the trial court erred in enforcing any of these restrictions, we must examine them all.

1. Wolff contends the trial court erred in enjoining him from actively soliciting business from Protege’s customers. Soliciting business from Protege’s customers is covered in Paragraphs 3 and 4 of the employment agreement.

(a) Paragraph 3 of the agreement is captioned “noncompetition,” and it provides that for a period of one year from the date of termination, Wolff may not “directly or indirectly, own, manage, operate, join, control, undertake planning for or organization of any business activity competitive with the business of Protege, or combine or conspire with other employees of Protege for the purpose of organizing any such competitive business activity, or be employed in any manner with any business of the type and character of business engaged in by Protege at the time of such termination.”

Because covenants against competition in employment agreements are in partial restraint of trade, they are upheld only when strictly limited, both in time and geographical effect, and when the restrictions are otherwise reasonable, considering the business interests of the employer needing protection and the effect of the restrictions on the employee. Nat. Settlement Assoc. v. Creel, 256 Ga. 329, 331 (3) (349 SE2d 177) (1986). We agree with Wolff that this covenant is unenforceable because it purports to prevent Wolff from obtaining employment with any competitor in any capacity. Such a restriction has repeatedly been held to be overbroad, unreasonable, and prohibited by the Georgia Constitution. Creel, supra at 332 (3) (c); McNease v. Nat. Motor Club, 238 Ga. 53, 56 (231 SE2d 58) (1976).

Such broad restrictions on any activity with any competitor are overbroad when not limited to the employee’s geographical territory. W.R. Grace & Co. v. Mouyal, 262 Ga. 464, 466-467 (422 SE2d 529) (1992). In this case, although paragraph 3 includes a geographic limitation, its wording renders it essentially meaningless as any geographical restriction. Paragraph 3 provides that the agreement “shall be bound by the following geographical territory; Clayton, Cobb, Dekalb and Fulton Counties located in the state of Georgia.” But it also provides that the covenants “shall not restrict or prohibit the employee from engaging in providing computer related software applications not used, offered, and/or developed by Protege, so long as the customer and the employee’s place of business are located entirely outside the area.” (Emphasis supplied.) The use of the word “not” ensures that even outside the restricted territory, the employee may engage in no business activity with any customer that involves software “used” by Protege, which is the Synon software.

Because the competition restrictions in Paragraph 3 of the agreement are unreasonable and overbroad, they may not be enforced. The trial court therefore erred in enjoining Wolff from soliciting business from Protege’s customers pursuant to Paragraph 3 of the agreement.

(b) Paragraph 4 of the agreement is captioned “nonsolicitation of customers.” It provides, in pertinent part, as follows: “During the term of this agreement, and for a period of one year immediately following the termination of his/her employment with Protege, the employee shall not . . . call on, solicit, or take away, or attempt to call, solicit, or attempt to take away any of the customers of Protege [on whom the employee called or with whom he/she became acquainted while employed at Protege], either for himself or for any other person, firm or corporation.” The record shows that Protege has only 15 customers and that it sought to prevent Wolff from doing business with any of them, although it is undisputed that Wolff had a business relationship with only eight of these customers.

Had this covenant been restricted to customers Wolff “called on” while at Protege, it might have been reasonable. But the covenant does not define or list those customers with whom Wolff “became acquainted” while at Protege. As written, the paragraph purports to prohibit Wolff from “calling on” any of Protege’s customers, regardless of whether he had a business relationship with those customers while employed at Protege, so long as he “became acquainted with” them while at Protege. This is overbroad.

“[A] restrictive covenant prohibiting a former employee from rendering services to any client of the employer must contain a territorial restriction expressed in geographic terms because that restriction, which does not take into account whether the employee had a business relationship with that client or whether it was the client who solicited the former employee, is otherwise unreasonable and overbroad in its attempt to protect the employer’s legitimate interest in keeping the employee from taking advantage of the goodwill generated during his employment with the employer to lure employer customers away.” Mouyal, supra at 467, n. 3. Accord American Software USA v. Moore, 264 Ga. 480, 481 (448 SE2d 206) (1994). Paragraph 4 does not include a territorial restriction, and it is overbroad and unenforceable. The trial court erred in enjoining Wolff from soliciting Protege’s customers pursuant to this provision.

(c) Paragraph 4 of the employment agreement also prohibits Wolff from disclosing “to any person, firm, or corporation the names or addresses of any of the customers of Protege or any other information pertaining to them.” This provision is also overbroad, in that it seeks to prohibit disclosure of information that is available to others from other sources and therefore not necessary to protect Protege’s legitimate business interests. Nasco, Inc. v. Gimbert, 239 Ga. 675, 676-677 (3) (238 SE2d 368) (1977). Not only did Wolff himself possess much information about many of Protege’s customers before he became employed at Protege, but much information about these customers was made available to others by Synon, which provided the software to these customers.

The trial court did not specifically address Paragraph 5 of the employment agreement, captioned “trade secrets.” But Protege maintains that its customer lists are such trade secrets. We therefore address this paragraph only as it pertains to Protege’s customer lists.

Upon terminating employment, an employee has the right to take with him all the knowledge he obtained so long as no property of the employer is taken. And under Georgia law, “customers are not trade secrets. Knowledge on the part of the employee concerning the names and addresses of customers is not the property of the employer.” (Citations and punctuation omitted.) Textile Rubber &c. Co. v. Shook, 243 Ga. 587, 592 (1) (b) (255 SE2d 705) (1979). Here, as in Shook, the employer could have protected itself through enforceable covenants against competition and disclosure. But we have found these covenants in Protege’s contract to be unenforceable, and Protege cannot now achieve the same result by claiming “trade secret” status for its customer list. Id. at 591-592 (1) (a).

(d) It is apparent that the injunction entered by the trial court does not correspond with any particular restrictive covenant in the employment contract. What is enjoined is narrower than any of the paragraphs in the agreement. For instance, although the agreement provides that Wolff may not take part in any capacity in business in competition with Protege or from “calling on” any customer with whom he “became acquainted” while at Protege, the order prohibits Wolff from “actively soliciting business” from 15 listed customers, but permits him to have contact with these customers and to do business with them if they have existing contracts with DP.

This “blue pencilling” of the employment agreement is prohibited under Georgia law even when the contract includes a severability clause, as this contract does. A restrictive covenant must stand or fall in its entirety. “If a contract contains illegal and unenforceable clauses within a restrictive covenant, the entire covenant must fail because [the Supreme C]ourt has refused to apply the blue-pencil theory of severability. [Cits.]” McNease, supra at 57. See Richard P. Rita &c. Intl. v. Kot, 229 Ga. 314, 317 (191 SE2d 79) (1972); Harville v. Gunter, 230 Ga. App. 198, 200 (2) (495 SE2d 862) (1998). The trial court erred in “blue pencilling” the restrictive covenants in Wolffs employment contract with Protege; the void covenants may not be enforced in part.

2. Wolff contends the trial court erred in enjoining him from soliciting the employees of Protege. The trial court enjoined Wolff “from contacting any employee of plaintiff Protege for the purpose of inducing any such employee to leave his or her employment with Protege.”

Paragraph 3, discussed above in the context of the prohibition against competition, also prohibits Wolff from “inducing or influencing any person who is engaged as an employee, agent, independent contractor or otherwise by Protege to terminate his/her engagement or to engage or otherwise participate in business activity directly or indirectly competitive with the business of Protege.” But because its overbroad restrictions against competition render Paragraph 3 unenforceable, and becaus.e “blue pencilling” is prohibited, the provision prohibiting solicitation of Protege’s employees is also unenforceable.

Moreover, even if this provision were otherwise enforceable, no evidence was presented showing that Wolff has violated it. Protege’s claim of violation of this provision rests upon a conclusion drawn from the fact that a particular employee terminated his employment with Protege and assumed employment with DP. But Wolff testified affirmatively that he did not initiate contact with this employee, who was recruited to change employment by a “headhunter” agency. Equitable relief is improper when based upon mere allegations and conclusions unsupported by facts showing a violation, or at least a substantial threat of imminent violation, of such a provision. The Ins. Center v. Hamilton, 218 Ga. 597, 600 (1) (a) (129 SE2d 801) (1963). The trial court erred in enjoining Wolff from soliciting Protege employees.

3. In the cross-appeal, Protege first contends the trial court erred in construing the employment agreement under Georgia law. Paragraph 8 provides that the agreement “shall be governed by and is to be construed and enforced in accordance with the laws of the State of Illinois.” The trial court concluded that the law of Georgia is controlling notwithstanding this provision. We agree.

The seminal case on this issue is Nasco, supra, relied upon by the trial court. In Nasco, the employment agreement in issue provided that it would be governed by Tennessee law, but the trial court applied Georgia law. The Supreme Court acknowledged that normally parties are free to contract for the application of the law of a particular jurisdiction to a contract. But “[t]he law of the jurisdiction chosen by parties to a contract to govern their contractual rights will not be applied by Georgia courts where application of the chosen law would contravene the policy of, or would be prejudicial to the interests of, this state. [Cits.]” Id. at 676 (2). Because this particular type of contract, containing covenants against competition and disclosure, does affect the interest of this state in the flow of information needed to support business competition, its “validity is determined by the public policy of this state. [Cits.]” Id. Consequently, when Georgia courts construe such a contract, Georgia law applies. The cases cited by Protege in support of its contention that the contractual stipulation of Illinois law must control simply apply the general principle; they do not involve restrictive covenants and are inapposite here.

4. Protege contends the trial court erred in failing to enforce the geographical restriction in Paragraph 3. We have addressed this contention in Division 1 (a), supra, and we have concluded that the restriction is overbroad.

5. Because we have concluded that the covenants against competition are unenforceable, it follows that the trial court did not err in failing to award attorney fees in favor of Protege.

6. Protege maintains the trial court erred in failing to award injunctive relief against DP Solutions for unfair trade practices under OCGA § 10-1-373 (a). The only evidence presented by Protege in support of this claim is that Wolff opened an office for DP Solutions just down the hall from the office he had maintained for Protege. Protege argues that this constitutes an attempt to confuse Protege’s customers and the general public and constitutes an unfair trade practice. We do not agree.

Both DP and Protege lease suites in a large office that offers secretarial, administrative, and other business services to approximately 140 tenants. DP uses its own name and a different telephone number. No evidence was presented showing that DP represents that it has any connection with Protege or seeks to “pass off” its services as those of Protege. We find nothing in OCGA § 10-1-372 (a), which lists deceptive trade practices, prohibiting establishing an office of a clearly and truthfully represented business near that of a competitor. No injunction was warranted against DP under OCGA § 10-1-373 (a).

Judgment affirmed in part and reversed in part.

Johnson, P. J, and Senior Appellate Judge Harold R. Ranke concur.

Decided September 8, 1998.

William G. Leonard, for appellants.

Moore, Ingram, Johnson & Steele, David G. Matthews, for appellee.

       Although the Supreme Court has jurisdiction of equity cases, when injunctive relief is granted or denied based upon the construction of a noncompete agreement, the case is not an equity case, and it is within this Court’s appellate jurisdiction. Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993). Cases appealing the grant or denial of injunctive relief are directly appealable pursuant to OCGA § 5-6-34 (a) (4). Saxton v. Coastal Dialysis &c., 267 Ga. 177 (476 SE2d 587) (1996). This case is therefore properly before us.

       Synon, Inc., itself also provides such services.

       Paragraph 3 is overbroad in other respects as well. It is undisputed that Protege uses Synon software, which is also licensed to DP. But this paragraph purports to prohibit Wolff from providing software applications used by Protege, without limiting the restriction to software as to which Protege has an exclusive license or claim of ownership.