author: Beasley, Judge.

text:
    A97A1214.
    JOHNSTONE v. TOM’S AMUSEMENT COMPANY, INC.
    (491 SE2d 394)
   Beasley, Judge.

Jeffrey Johnstone’s appeal from a permanent injunction is in this Court despite Ga. Const. 1983, Art. VI, Sec. VI, Par. Ill (2). See Saxton v. Coastal Dialysis &c., 267 Ga. 177 (476 SE2d 587) (1996). The trial court erroneously enjoined him from competing with Tom’s Amusement Company (“Tom’s”) because, as Johnstone contends, the lease agreement containing the noncompete provision is more like an employment agreement than like a sale of business agreement for purposes of determining its enforceability.

Tom’s places and services coin-operated video amusement games at various locations in North Georgia, Tennessee, and North Carolina. Beginning in 1987 until late 1990, Tom’s employed Johnstone as a route man servicing the machines at many of the locations. John-stone was not subject to any restrictive covenants or confidentiality agreements. In 1990, Tom’s decided to discontinue servicing certain types of games because some customers were misusing the games for illegal gaming purposes. Tom’s approached Johnstone about starting his own business and leasing these machines from Tom’s. It is disputed whether Tom’s indicated it would terminate Johnstone as an employee if he declined.

On December 21, 1990, Johnstone and Tom’s executed an equipment lease agreement and an option agreement. Under the first agreement, Johnstone leased certain equipment at two business locations from Tom’s for one year (with no authorization to use Tom’s logo) and agreed that for the term of the lease plus ten years he would “refrain from carrying on or engaging (directly, through Affiliates, or by assisting others) in the amusement game activity competitive with the business of Lessor within the Geographic Territory” as defined therein. He further agreed, without any time limitation, to refrain from soliciting customers where the leased equipment was currently located for the purpose of providing them competitive equipment. A violation of either covenant would “toll and suspend the period of restraint for the amount of time that the violation continues, provided, that the injured party seeks enforcement promptly after discovery of the violation.” Other provisions authorized the severing of invalid covenants and the reformation of overly broad covenants.

Under the option agreement, Johnstone could choose to purchase either all the leased equipment, “a minimum of 50 machines,” or all equipment owned by Tom’s. If he purchased only the leased equipment, Johnstone agreed to a particular covenant not to compete contained in the option agreement; if he purchased all of Tom’s equipment, then Tom’s agreed to a separate covenant not to compete set forth in the option agreement.

Johnstone did not exercise either option to purchase. The first option was available only in the event Johnstone had leased 50 machines, which did not materialize. In May 1996, Tom’s terminated the lease agreement and, claiming Johnstone had breached the lease, sued Johnstone for damages and for an injunction enjoining John-stone from competing and soliciting in violation of the lease covenants. Both parties moved for partial summary judgment on the enforceability of the noncompete and nonsolicit provisions. The trial court held the lease’s nonsolicit provision invalid on the ground that it contained no time limitation. See T. V. Tempo v. T. V. Venture, 244 Ga. 776, 779 (262 SE2d 54) (1979). Finding that the lease was part of a transaction for the sale of a business, the trial court “blue pencilled” out the invalid nonsolicit provision and permanently enjoined Johnstone from violating the noncompete provision.

1. Johnstone enumerates as error the blue-penciling of the lease so as to excise the invalid nonsolicit provision. In the employment contract context, an unenforceable nonsolicit covenant invalidates any noncompete covenants found in the same agreement, for Georgia does not “blue pencil” restrictive covenants ancillary to employment contracts. Ward v. Process Control Corp., 247 Ga. 583 (2), 584 (277 SE2d 671) (1981); Adcock v. Speir Ins. Agency, 158 Ga. App. 317, 319 (279 SE2d 759) (1981). See Sunstates Refrigerated Svcs. v. Griffin, 215 Ga. App. 61, 63 (2) (449 SE2d 858) (1994) (“Since Georgia does not ‘blue-pencil’ covenants restricting competition contained in employment contracts,” invalid noncompete provision also invalidates nonsolicit provision). Nondisclosure and nonrecruit provisions in the same agreement rise or fall separately from the noncompete and nonsolicit provisions. Id. at 62. Even though the contract authorizes reformation of the restrictive covenants so as to bring them within the limits of the law, it is not allowed in the employment context. Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 139-140 (1) (287 SE2d 546) (1982); Wulfhorst v. Hudgins & Co., 231 Ga. 170, 171 (200 SE2d 743) (1973). Nor does the severability clause in the contract allow a Georgia court in the employment context to excise an invalid nonsolicitation paragraph so as to preserve other restrictive covenants. McNease v. Nat. Motor Club &c., 238 Ga. 53, 56-57 (2) (231 SE2d 58) (1976); Richard R Rita Personnel &c. v. Kot, 229 Ga. 314 (191 SE2d 79) (1972). But a severability clause will allow a court to excise the entire restrictive covenant so as to preserve the other covenants in the contract. Circle Appliance Leasing v. Appliance Warehouse, 206 Ga. App. 405 (425 SE2d 339) (1992); O. H. Carter Co. v. Buckner, 160 Ga. App. 627 (287 SE2d 636) (1981).

On the other hand, restrictive “covenants in the sale of a business, unlike covenants in contracts of employment, can be blue penciled to make them valid.” Lyle v. Memar, 259 Ga. 209, 210 (378 SE2d 465) (1989). See Redmond v. Royal Ford, 244 Ga. 711, 713 (261 SE2d 585) (1979). Laying aside the question of whether excising an invalid nonsolicit provision is the proper exercise of blue-penciling, the issue is whether the restrictive covenant in Johnstone’s lease is more like a restrictive covenant ancillary to an employment arrangement or more like a restrictive covenant ancillary to a sale of business transaction. Watson v. Waffle House, 253 Ga. 671, 672 (2) (324 SE2d 175) (1985).

2. In making this determination, normally we construe the agreement containing the restrictive covenant (the lease agreement) and the agreement selling the business (the option agreement) together if they were executed as part of the same transaction. Lyle v. Memar, 259 Ga. at 210; Drumheller v. Drumheller Bag & Supply, 204 Ga. App. 623, 626 (1) (420 SE2d 331) (1992). But in both Lyle and Drumheller the sale of the business was actually consummated, which did not occur here.

Besides, the lease agreement had its own restrictive covenant that was in addition to the restrictive covenants contained in the option agreement. The lease’s restrictive covenant applied so long as the lease constituted the arrangement between the parties; whereas, the two different restrictive covenants in the option agreement applied depending on whether and which option to purchase was exercised. “If, as plaintiff contends, the restrictive covenant in the employment contract should be considered part and parcel of the sales contract, why was the restrictive covenant in the sales contract necessary? The answer lies in the restrictive covenants themselves. . . . [E]ach covenant stands on its own. Each covenant is separate and complete.” Arnall Ins. Agency v. Arnall, 196 Ga. App. 414, 419 (2) (396 SE2d 257) (1990) (physical precedent only). Arnall held that the restrictive covenant in the employment contract executed the same day as the sales agreement, which had its own restrictive covenant, was not ancillary to the sale of the business. Because John-stone did not exercise the option contained in the option agreement, which had its own restrictive covenants, and because the covenant Tom’s seeks to enforce is found only in the lease agreement, we need not consider the option agreement to determine whether the lease’s restrictive covenant is to be treated as ancillary to an employment contract or to a sale of business transaction.

Even if we considered both agreements, the lease covenant would nevertheless receive strict scrutiny and not be blue-penciled. “Restrictive covenants entitled to [less stringent] treatment are those restricting the after-sale competitive activity of the seller, not the before-sale activity of the purchaser.” Kloville, Inc. v. Kinsler, 239 Ga. 569, 570 (238 SE2d 344) (1977). The lease covenant, if construed in conjunction with the option agreement, limited the before-sale activity of buyer Johnstone.

3. Therefore, we review the lease covenant on its own. “[Covenants ancillary to a professional partnership agreement^] . . . covenants ancillary to franchise and distributorship agreements[, and] covenants ancillary to contracts for services by independent contractors . . . have been treated by [Georgia courts] like employee covenants ancillary to employment contracts.” (Citation omitted.) Jenkins v. Jenkins Irrigation, 244 Ga. 95, 97-98 (259 SE2d 47) (1979). An agreement in which an employee leases from his employer the same equipment he had been servicing for his employer has the characteristics of an independent contractor relationship approximating that of an employment relationship. See Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 182 (236 SE2d 265) (1977); Amstell, Inc. v. Bunge Corp., 213 Ga. App. 115, 116-117 (2) (443 SE2d 706) (1994). Moore v. Preferred Research, 191 Ga. App. 26, 27 (1) (381 SE2d 72) (1989), held that a licensing agreement to use certain techniques and procedures of the licensor in a specified geographic area is analogous to an employment contract. A lease agreement to use certain equipment of a lessor in a specified area has similar attributes.

The focus in such cases is on the relative bargaining power of the parties. “The rationale behind the distinction in analyzing covenants not to compete is that a contract of employment inherently involves parties of unequal bargaining power to the extent that the result is often a contract of adhesion. On the other hand, a contract for the sale of a business interest is far more likely to be one entered into by parties on equal footing. [Cit.]” Watson v. Waffle House, 253 Ga. at 672. An employee negotiating with his employer regarding the employer’s assets has “little bargaining clout. ... He [is] nothing more than an employee, albeit an important one, and as an employee [he] could reasonably have assumed that if he did not do as [the employer] wished he would be stigmatized as not being a team player, thereby jeopardizing his career prospects with [the employer].” White v. Fletcher/Mayo/Assoc., 251 Ga. 203, 207 (303 SE2d 746) (1983). See S. Hammond Story Agency v. Baer, 202 Ga. App. 281, 282 (414 SE2d 287) (1991).

Johnstone was negotiating with his employer, which had announced it wanted to get out of servicing certain troublesome machines on his route and was interested in Johnstone leasing them. Although Tom’s denies it threatened Johnstone with termination if he declined, Johnstone was at least faced with the stigma of not being a team player and did testify: “I understood that I would be terminated from my employment if I did not sign the Lease.”

If this lease were a sales contract, Tom’s would be selling “business assets, stock or goodwill to” Johnstone. Amstell, Inc. v. Bunge Corp., 213 Ga. App. at 116 (2); Owens v. RMA Sales, 183 Ga. App. 340, 341 (1) (358 SE2d 897) (1987). Were the lease a transfer of assets or goodwill to Johnstone, it would be Johnstone requiring a covenant not to compete from Tom’s, not vice versa. Johnstone as the buyer in this transaction would have been the one concerned that he not face competition from Tom’s in the same areas where the purchased or leased machines were located. See Dunaway v. Parker, 215 Ga. App. 841, 848 (2) (453 SE2d 43) (1994) (restrictive covenant normally runs in favor of the buyer to protect the goodwill he is purchasing). Since “ ‘the covenant not to compete . . . was not made by the seller in conjunction with the sale of a business [but] was made by the buyer in conjunction with the acquisition of an interest in a business’ [cit.],” the covenant receives the severe scrutiny given restrictive covenants ancillary to an employment contract. Horne v. Drachman, 247 Ga. 802, 805 (280 SE2d 338) (1981). See Kloville, Inc. v. Kinsler, 239 Ga. at 570.

Based on similar considerations, this Court and the Supreme Court of Georgia traditionally have treated restrictive covenants favoring the lessor in lease agreements as ancillary to an employment contract. See Club Properties v. Atlanta Offices-Perimeter, 180 Ga. App. 352 (348 SE2d 919) (1986); Watson v. Waffle House, supra. We do likewise here. Blue-penciling not being available, the invalid nonsolicit provision necessarily invalidates the noncompete provision, and the noncompete provision is unenforceable on this ground alone.

4. Under the strict law applicable to employment contracts, the noncompete covenant falls on other grounds also. By prohibiting Johnstone from “assisting others” in the amusement game business, Johnstone is prohibited from working for a competitor in any capacity, which is fatal to the covenant. American Gen. &c. Ins. Co. v. Fisher, 208 Ga. App. 282, 284 (1) (430 SE2d 166) (1993). Restraining Johnstone from “carrying on or engaging” in the amusement game business implies that he may not do so in any capacity. Fleury v. AFAB, Inc., 205 Ga. App. 642, 643 (423 SE2d 49) (1992). A ten-year duration is excessively long following a one-year lease. The tolling provision is identical to the tolling provision which invalidated the restrictive covenant in Gynecologic Oncology, P.C. v. Weiser, 212 Ga. App. 858, 859 (2) (443 SE2d 526) (1994).

Decided August 5, 1997

Reconsideration denied August 28, 1997

Gambrell & Stolz, Robert G. Brazier, Seaton D. Purdom, for appellant.

Ralston & Panter, David E. Ralston, Waycaster, Morris, Johnson & Dean, R. Leslie Waycaster, Jr., for appellee.

The trial court erred in (1) denying Johnstone’s motion for partial summary judgment, (2) granting Tom’s motion for partial summary judgment, and (3) granting the permanent injunction against Johnstone. These holdings moot all other enumerations of error.

Judgment reversed.

McMurray, P. J, concurs. Senior Appellate Judge Harold R. Banke concurs in the judgment only.

       Tom’s did not cross-appeal the holding that the nonsolicit provision was invalid. Yet if, as Tom’s claims, this is a sale of business transaction containing a restrictive covenant with a reasonable geographic limitation, then no time limitation was required. Farmer v. Airco, Inc., 231 Ga. 847, 850 (204 SE2d 580) (1974). Because this is more like a restrictive covenant in an employment contract, the trial court’s conclusion on the validity of the nonsolicit provision was correct in any case.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A97A1488.
    COLLINS v. LIFE INSURANCE COMPANY OF GEORGIA.
    (491 SE2d 514)
   Birdsong, Presiding Judge.

William A. Collins filed this action on a medical insurance policy, seeking coverage for a hip prosthesis.

The policy provides coverage for “casts, splints, crutches at the regular hospital charge.” It makes no mention of a prosthesis. However, when defendant’s agents sold Collins this insurance, they used a “Proposal/Worksheet” — a printed paper which listed apparent coverage for “1. Hospital Room and Board . . . [different amounts per plan purchased]. ... 2. Surgical Benefits (inpatient or outpatient). ... 3. Miscellaneous Hospital Expenses (inpatient or outpatient) A: When confined. ... 4. PLUS Fixed additional amounts for following: [services listed]. ... 5. PLUS_times the actual hospital charges for the following:

* Casts * Crutches/Prosthesis

* Splints * Anesthesia Materials”

This printed “Proposal/Worksheet” was issued by the insurer for its agents to use in soliciting the purchase of its insurance and explaining its coverage. The cover sheet of the proposal/worksheet is embellished with the title “COMBINATION HOSPITAL and SURGICAL PLANS PROPOSAL,” a drawing of medical workers performing surgery, and the smaller printed words: “The following worksheet represents a combination of several Associated Doctors plans. By combining benefits of several plans, a plan can be made to fit your personal and financial situation. This worksheet consists of approximate maximum amounts payable. Actual amounts payable for a claim will be determined in accordance with the terms of all policies.”

At the bottom of the cover sheet are these words in large print: “This is an illustration — Not a contract.”

Collins contends the “Proposal/Worksheet,” being issued by the defendant, is part of his coverage; or that at least the misleading language in the “Proposal/Worksheet” entitles him to recover for negligent misrepresentation. See Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681 (300 SE2d 503). The insurer contends Collins’ policy does not cover a prosthesis and that Collins could not have been misled because the cover sheet of the “Proposal/Worksheet” states it is “not a contract,” and the policy states that the policy constitutes the entire contract.

The trial court granted summary judgment to defendant insurer and denied plaintiff’s motion for partial summary judgment. Held:

The party opposing a motion for summary judgment is given the benefit of all reasonable doubt and the evidence and all inferences and conclusions arising therefrom are construed most favorably to him. Bob v. Hardy, 222 Ga. App. 550, 555 (474 SE2d 658).

1. We construe the evidence in favor of the insurer on Collins’ motion for partial summary judgment as to coverage. In that light, the policy plainly does not provide coverage for a prosthesis. If the proposal/worksheet had been “attached” to the policy it might have been a part of it (see Ga. Intl. Life Ins. Co. v. King, 120 Ga. App. 682 (172 SE2d 167)), but because the cover sheet plainly states the proposal/worksheet is “not a contract,” it cannot be a part of the insurance contract. The policy contains no reference to a prosthesis. Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385 (414 SE2d 521). A “prosthesis” is plainly a different object than “casts, splints and crutches” and coverage for a prosthesis cannot be inferred from coverage in the policy for “casts, splints and crutches.”

The trial court did not err in denying Collins’ motion for partial summary judgment on the issue of actual coverage and in granting the insurer’s motion for summary judgment on this issue.

2. The trial court erred in granting summary judgment to the insurer on the issue of negligent misrepresentation. See Hutsell v. U. S. Life Title Ins. Co., 157 Ga. App. 845 (278 SE2d 730) where the insurer’s agent wrote a letter to the insured saying the accompanying policy of title insurance provided coverage for a survey, when that policy did not provide such coverage.

The insurer issued the proposal/worksheet and intended that it be presented to the prospect or to the insured. Construing the evidence most favorably to Collins, one of these proposal/worksheets was presented to Collins and figures were placed next to each item of coverage according to the type of plan he bought. This document clearly states that coverage is provided for “crutches/prosthesis.” Construed in Collins’ favor, this reference is a representation that coverage for a prosthesis is included in the policy terms or, specifically, that coverage for “crutches” includes coverage for a prosthesis.

The insurer contends a copy of the “Proposal/Worksheet” was not given to Collins until the policy was delivered, that it was not prepared in connection with the policy Collins purchased, that Collins was never told it was part of his policy, and that Collins does not recall any conversation as to whether a prosthesis was covered. However, the evidence, construed in Collins’ favor on the insurer’s motion for summary judgment (Bob, supra), yields a different conclusion. In deposition Collins testified he did not remember any specific conversations with the insurer or its agents concerning whether a prosthesis would be covered, but he also testified that either when he discussed insurance with defendant’s agents or when the policy was delivered to him, the proposal/coversheet was presented to him “to explain [his] benefits” and to explain “what [he] was buying.” Collins’ failure to remember his exact conversation with the insurer’s agents six years ago does not demand a conclusion that this document was not discussed. According to Collins, the insurer’s agents drew a circle around the word “prosthesis” because “I think they said it should be over listed with casts and splints rather than beside crutches.” Whatever was the conversation, the document presented to Collins stated coverage for “casts/splints” and “crutches/prosthesis.” Collins also testified that the worksheet was not “purely demonstrative” but “was to explain what I was buying.”

A jury may conclude from all the evidence that defendant’s agents presented and demonstrated the proposal/worksheet to Collins as a means to solicit his purchase of the policy and explain its meaning. Although the cover sheet states the document was “not a contract,” an issue of fact remains as to whether, by using a document with “prosthesis” listed as a covered item with “crutches” to solicit Collins to purchase this insurance policy or to explain his coverage when the policy was delivered, the insurer negligently represented to him that this constituted an explanation of the actual contract provision for crutches, casts and splints, and, therefore, that “prosthesis” was covered under the insurance coverage for “crutches, casts and splints.”

A jury may conclude there was no reason for the insurer to include a proposal/worksheet with the delivered policy except to persuade the buyer that the items listed on the sheet are included in his contract or to explain his coverage to him. Although the cover sheet stated the proposal/worksheet is “not a contract,” and that it represents “a combination of several Associated Doctor’s plans” and that Collins’ policy could be “tailor-made” to fit his needs, a jury may conclude the proposal/worksheet was tailor-made for Collins, since the proposal/worksheet was issued by the insurer and was intended to be used either to solicit him to buy a policy or to explain his coverage to him.

Decided August 28, 1997.

Michael L. Wetzel, for appellant.

The insurer correctly contends that an act by an agent without authority cannot bind the principal (Garrett v. Life Ins. Co. of Ga., 221 Ga. App. 315 (471 SE2d 262)), and “oral statements” of an agent cannot bind an insurer and the insured is charged with knowledge of the contents of his policy. Fowler v. Prudential Prop. &c. Co., 214 Ga. App. 766, 767 (449 SE2d 157). However, construing the evidence in Collins’ favor, a jury may conclude that this proposal/worksheet represents that coverage for a “prosthesis” is included in the policy’s coverage for casts, splints and crutches.

The requirements to prove negligent misrepresentation as stated in Robert & Co. Assoc. may be present, for a jury may conclude the prominent display of the proposal/worksheet to Collins was foreseeably misleading to known persons which include Collins as a prospective buyer of a policy, that Collins reasonably relied on it either in buying the policy or in not obtaining additional coverage elsewhere to provide for a prosthesis, and that he was thereby damaged.

3. The cause of action for negligent misrepresentation does not, as Collins suggests, give him the right to coverage based on his “reasonable expectation,” for this would contradict the written contract. Damages are given for the injury done (Saunders v. Citizens Bank &c. Trust, 265 Ga. 453, 456 (458 SE2d 337)); the injury in this case would include every harm done by the insurer’s refusal to provide coverage and payment which it negligently represented existed. An award for bad faith refusal to pay an insurance claim under OCGA § 33-4-6 would not be authorized because the contract does not, in fact, cover “prosthesis” and the insurer cannot be deemed to have acted in bad faith for a frivolous and unfounded refusal to pay what is clearly not covered. See Dixie Constr. Prods. v. WMH, Inc., 179 Ga. App. 658 (347 SE2d 303). OCGA § 33-4-6 is the exclusive remedy for bad faith denial of insurance benefits (Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536, 537 (2) (448 SE2d 275)), and here there were no benefits for this claim.

Judgment affirmed in part and reversed in part.

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

Gorby & Reeves, Martha D. Turner, Baker, Donelson, Bearman & Caldwell, Jeffrey A. Billings, for appellee.


author: Ruffin, Judge.

text:
    A97A1590.
    KEY v. NORFOLK SOUTHERN RAILWAY COMPANY.
    (491 SE2d 511)
   Ruffin, Judge.

Carl Key, a train engineer for Norfolk Southern Railway Company (“Norfolk”), filed suit under the Federal Employers’ Liability Act (“FELA”) and the Boiler Inspection Act (“BIA”) to recover damages from his employer for injuries he sustained in a July 1992 fall from a locomotive. Key claimed that while descending from the locomotive using its three built-in steps, he missed the middle step and fell. Key and his expert allege the fall was caused by the dangerously defective design of the steps, in that the tread on the middle step was recessed and did not “line up” with the first and third steps. After examining evidence showing the steps complied with federal design regulations issued pursuant to the BIA, the trial court held these regulations preempted Key’s common-law allegations of negligence and showed, as a matter of law, that the steps were properly designed. The trial court accordingly granted Norfolk’s motion for summary judgment, and Key appeals. For the following reasons, we dffirm.

Summary judgment is appropriate when the evidence, construed in the nonmovant’s favor, shows no issue of material fact remains and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The evidence in the record shows that Key’s only allegation of Norfolk’s negligence is the defective design of the steps. He did not contend that any foreign substance on the steps caused his fall, nor did he contend the steps were improperly maintained. Therefore, we must determine if any jury question exists as to whether the steps were defectively designed.

We find that federal railroad safety regulations preempt Key’s common-law allegations of negligence and show, as a matter of law, that these steps were not “defectively designed.” “It is well established that in enacting FELA, [45 USC § 51 et seq.], Congress superseded state law remedies in the subject area covered by FELA and provided the exclusive remedy for employees of common carriers injured by the negligence of their employers. [Cits.]” Bowers v. Estep, 204 Ga. App. 615, 616 (1) (420 SE2d 336) (1992). The BIA, 45 USC § 22 et seq., is considered an amendment to the FELA, supplementing the FELA “to provide additional public protection and facilitate employee recovery. [Cits.]” King v. Southern Pacific Transp. Co., 855 F2d 1485, 1488, n. 1 (10th Cir. 1988). The BIA “prohibits railroads from operating any locomotive unless ‘the locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put. . . .’45 U.S.C. § 23.” Id. at 1488. The Federal Railroad Administration (“FRA”) was delegated the power to issue safety regulations applicable to the BIA. See 45 USC § 23; 49 CFR § 1.49 (c) (5). This delegation of regulatory power to the FRA “ ‘is a general one. It extends to the design, the construction and the material of every part of the locomotive and tender and of all appurtenances.’ Napier v. Atlantic Coast Line R. Co., 272 U. S. 605, 611 (47 SC 207, 71 LE 432) (1926).” Central of Ga. R. Co. v. Markert, 200 Ga. App. 851 (2) (410 SE2d 437) (1991) (physical precedent only).

Pursuant to its authority under the BIA, the FRA issued regulation 49 CFR § 231.30. That regulation, accompanied by schematic diagrams, describes in detail the construction and materials requirements for steps on locomotives such as the one from which Key fell. The trial court found the steps on this locomotive complied with this applicable regulation, and Key does not contest that finding on appeal. Because the FRA has stated that these steps are appropriately designed, the testimony of Key’s expert to the contrary is immaterial.

Although Key argues that his expert’s testimony does not represent an effort to assert a state law or common-law claim of negligence, we find that it represents just such an attempt. Allowing a jury to agree with Key’s expert, find the railroad negligently designed the steps, and award damages accordingly would, in effect, result in state or common-law regulation. Such “regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.” (Citation and punctuation omitted.) Cipollone v. Liggett Group, 505 U. S. 504, 521 (112 SC 2608, 120 LE2d 407) (1992). As a federal appeals court held in Law v. Gen. Motors Corp., 114 F3d 908, 910-911 (9th Cir. 1997), to allow various state juries to second-guess the actions of an interstate railroad which has complied with federally-mandated design standards would undermine “Congress’s goal of uniform, federal railroad regulation[.]”

Decided August 28, 1997.

Blackwood, Matthews & Steel, John D. Steel, John B. Briggs, for appellant.

Hall, Bloch, Garland & Meyer, F. Kennedy Hall, Mark E. Toth, for appellee.

In support of his argument that the BIA regulations do not preclude a claim of negligent design, Key cites cases which involve or discuss a carrier’s failure to maintain its locomotive in good repair (Bolan v. Lehigh Valley R. Co., 167 F2d 934, 936 (2nd Cir. 1948)) or a carrier’s failure to employ safety features which are not required by regulation but are nonetheless “an integral or essential part of a completed locomotive.” Mosco v. Baltimore & Ohio R., 817 F2d 1088, 1091 (4th Cir. 1987). This case involves neither factual scenario.

Judgment affirmed.

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

       49 CFR § 231.30, discussed infra.

       In 1994, Congress recodified the BIA at 49 USC § 20701 et seq.

       45 USC § 23 is now codified at 49 USC § 20701.


author: McMurray, Presiding Judge.

text:
    A97A1167.
    DENTAL ONE ASSOCIATES, INC. v. JKR REALTY ASSOCIATES, LTD.
    (491 SE2d 414)
   McMurray, Presiding Judge.

Plaintiff JKR Realty Associates, Ltd. brought this contract action against defendant Dental One Associates, Inc., alleging that defendant was its tenant under a written assignment of the executory portion of a lease of commercial property and that defendant “refused to pay [$121,333.28 (One Hundred Twenty One Thousand, Three Hundred Thirty Three Dollars and Twenty Eight Cents) representing eight months of] unpaid rent.” Defendant admitted only that it was the assignee under an Assignment of Lease executed in conjunction with the bankruptcy of the original tenant-assignor, and that the monthly rent was $15,166.66. But for aught that appears of record, defendant never raised the prior bankruptcy of the original tenant-assignor as an affirmative defense. OCGA § 9-11-8 (c).

After limited discovery, plaintiff moved for summary judgment, pursuant to OCGA § 9-11-56 (a). In an order filed on October 10, 1996, the trial court granted plaintiff’s motion. In an “AMENDED ORDER” filed October 18,1996, the trial court specified that plaintiff was to recover the principal sum of $121,333.28 as liquidated damages plus $18,199.99 as contractual attorney fees. Defendant’s “Motion for Reconsideration or For an Extension of Time to File Notice of Appeal. . .” was denied Tuesday, November 12, 1996, and defendant’s notice of appeal was filed that same day. Held,-.

1. Plaintiff’s motion to dismiss this appeal as untimely is denied. The thirtieth day following the October 10, 1996, order granting summary judgment fell on Saturday, November 9, 1996. Monday, November 11, 1996, was Veteran’s Day, a designated State holiday. OCGA § 1-4-1. Consequently, the time for filing the notice of appeal was extended to the next business day, Tuesday, November 12, 1996. OCGA § 1-3-1 (d) (3).

2. Defendant first contends the grant of summary judgment is erroneous because plaintiff failed to prove it satisfied a condition precedent to the Assignment of Lease, namely an order of confirmation from the Bankruptcy Court.

OCGA § 9-11-9 (c), respecting conditions precedent, requires in part that a “denial of performance or occurrence shall be made specifically and with particularity.” “[T]he scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching, shifting, and ‘mending your hold.’ Sanders v. State, 134 Ga. App. 825, 826 (1) (216 SE2d 371) (1975) and cits.; [cits.].” Redwing Carriers v. Knight, 143 Ga. App. 668, 673 (9) (a), 674 (239 SE2d 686).

Scrutiny of the hearing on plaintiff’s motion reveals no objection to plaintiff’s prima facie case on the ground there is no “ ‘Order of Confirmation (of the Plan of Liquidation) from the Bankruptcy Court approving this Assignment.’ ” On the contrary, defendant’s counsel expressly referred the trial court to a March 7, 1988, order whereby the “United States Bankruptcy Court for the Northern District . . . approved the liquidation of [the original tenant-assignor] . . . [and] discharged . . . the debt of the plaintiff which they are making claim for now.” The substance of the defense, as argued to the trial court, was either that any claim arising out of the original tenant-assignor’s pre-bankruptcy default was not assumed because it was discharged, or that the assignment is ambiguous and should not be construed to apply to any prior indebtedness. Consequently, we hold the ground urged in this enumeration was waived below and is not preserved for appellate review.

3. Defendant also contends the assignment is ambiguous as to what responsibilities defendant actually assumed, arguing that the bankruptcy context corroborates an intention only to assume prospective obligations under the lease and not any arrearage. We find no ambiguity and affirm.

The original agreement specified the “term of this lease and the obligation of Tenant to pay rent hereunder shall commence upon the first to occur of:. . . (a) November 1, 1985; or . . . (b) [t]he date upon which Tenant opens for business in the premises.” According to the affidavit of Robert Krasnoff, plaintiffs managing partner, the original tenant “made no rental payments . . . between November 1,1985 and June 30, 1986.” Under the express terms of the assignment, defendant “assume[d] all of the terms, provisions, obligations, responsibilities and liabilities of Assignor and of the Tenant under the Lease. From and after the effective date [of the assignment], the Lease shall be deemed a direct obligation between [plaintiff as] Landlord and [defendant as] Assignee.”

In opposition to plaintiff’s motion, defendant submitted the affidavit of Paul Yurfest, defendant’s president, who deposed that “[his] understanding of the purpose of the Assignment of Lease was to cause [defendant] to assume the rights of [the original tenant-assignor] to occupy the premises . . ., and to cause [defendant] to take on the liabilities of [the original tenant-assignor] arising under the lease agreement between [the original tenant-assignor and plaintiff].” Further, it was “not my [i.e., Paul Yufest’s] intention to obligate [defendant], nor did [defendant] intend to become obligated for, any debt of [the original tenant-assignor] to [plaintiff] which arose prior to the effective date of the Assignment of Lease.”

“Where contractual provisions are unambiguous, interpretation of those provisions is a question of law for the court, and the court is not free to revise contracts while professing to construe them. Brigadier Indus. Corp. v. Pippin, 148 Ga. App. 145 (251 SE2d 114) (1978).” Kelson Companies v. Feingold, 168 Ga. App. 391, 393 (309 SE2d 394). “In the absence of either fraud, accident, or mistake in the procurement of a written contract, parol evidence is inadmissible, to contradict or vary the terms of the writing.” Bush v. Roberts, 4 Ga. App. 531, 532 (hn. 5) (62 SE 92). See OCGA § 13-2-2 (1). In our view, defendant’s promise to assume all the terms, provisions, obligations, responsibilities and liabilities of the bankrupt tenant is unambiguous and includes arrearages such as are here demanded. If defendant intended to assume only the prospective obligations of the bankrupt tenant-assignor, it should have made that intention express. The trial court correctly granted plaintiff’s motion for summary judgment.

Judgment affirmed.

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

Decided August 11, 1997

Reconsideration denied August 29, 1997

Strelzik & Shapiro, Steven J. Strelzik, Vincent J. Zugay, Jr., for appellant.

Simmons, Warren, Szczecko & McFee, Joseph Szczecko, for appellee.


text:
    A97A1363.
    MILAN v. THE STATE.
    (491 SE2d 401)
   Beasley, Judge.

Milan was convicted of trafficking in cocaine (OCGA § 16-13-31), possession of marijuana (OCGA § 16-13-30 (a)), and possession of a firearm during the commission of a crime (OCGA § 16-11-106). He appeals from the trial court’s denial of his motion to suppress the contraband found during a search of his vehicle. He contends the search was illegal because it was incident to an arrest unsupported by probable cause.

Officer Bishop was a traffic enforcement/drug interdiction officer with the canine division of the Cherokee County Police Department. On January 10, 1991, he and another officer were patrolling Interstate 75 when they observed Milan driving slowly in a light rain and weaving across the road lanes. The officers pursued Milan, and he accelerated to a much higher rate of speed and proceeded from an exit ramp onto an adjacent highway without properly yielding the right of way to oncoming traffic. Bishop observed Milan turn into a gas station parking lot, exit his car, and begin pumping gas as though nothing had happened.

Bishop parked, approached Milan on foot, and asked for his driver’s license. The car bore a Tennessee tag, but Milan produced a Georgia license. He was extremely nervous, as was the passenger. Milan told Bishop he was driving a rented car but was unable to produce any ownership or rental papers. Bishop issued warning citations to Milan for speeding and failure to yield the right of way.

He then asked Milan if he was transporting illegal narcotics or weapons. Milan became increasingly nervous and said “no.” Bishop asked for consent to search the car, but Milan refused. Bishop told Milan he was going to retrieve the narcotics dog from his patrol car to do a walk-around of Milan’s car. The dog showed some interest in the driver’s door but gave an official indication on the right front passenger door. Bishop then told Milan he was going to search the car for narcotics. In a bag on the right side floorboard, Bishop found cocaine, marijuana, and a weapon. As Bishop was opening the bag, Milan fled and was later arrested.

Decided August 6, 1997

Reconsideration denied August 29, 1997

Dyer & McElyea, Robert M. Dyer, for appellant.

Garry T. Moss, District Attorney, Kimberly K. Frye, Michelle C. Egan, Assistant District Attorneys, Gregory A. Hicks, for appellee.

In reliance on Schmidt v. State, 188 Ga. App. 85 (372 SE2d 440) (1988), and DiSanti v. State, 190 Ga. App. 331 (378 SE2d 729) (1989), Milan argues that his arrest began at the moment he refused to consent to a car search so that legality of the search depends on the existence of probable cause at that time. The cited decisions do not support this argument. Rather, they hold that prolonged detention (30 minutes in Schmidt and about 58 minutes in DiSanti) is not authorized by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), is thus an arrest, and must therefore be supported by probable cause at its inception to be legal.

In this case, the drug dog was on the scene, and less than three minutes elapsed from the time Milan refused to give his consent until the dog completed his circumnavigation of Milan’s car. The length of this investigatory detention was not unreasonable and did not exceed the minimal intrusion authorized by Terry. See Roundtree v. State, 213 Ga. App. 793 (446 SE2d 204) (1994) (drug dog brought to scene within 15 minutes of officer’s request). Because the dog alerted, the officer had probable cause to conduct the search. Id. Denial of Milan’s motion to suppress was not error.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A97A1640.
    HAWKINS v. BROWN et al.
    (491 SE2d 423)
   McMurray, Presiding Judge.

Plaintiff Crystal Hawkins brought this tort action against defendants Charles Brown and Annie Doris Brown, alleging she broke her right ankle as she was leaving defendants’ home. Defendants admitted that plaintiff “walked out on the porch and down some steps. The porch was covered [with] indoor/outdoor carpet. . . . The steps were mostly not covered with indoor-outdoor carpet. ... At the bottom step, there was another piece of the indoor/outdoor carpet that extended beyond the step.” But defendants denied the following material allegations: “Unknown to plaintiff, there was [an alleged] hole under this carpet.” Plaintiff “stepped in this hole and tripped and fell.”

After discovery, defendants moved for summary judgment. The evidence, viewed in the light most favorable to plaintiff as the nonmovant, authorized the following facts: Plaintiff and her family “dropped by” at the Brown residence to see Mary Hawkins, the aunt of plaintiff’s husband, James Eugene Hawkins. James Eugene Hawkins affirmed there is a “concrete walkway . . . shown in some pictures, one end of [which] walkway goes to the steps going up the porch. . . .” That walkway “cuts to the left as you come off of the steps,” and leads to the parking area where plaintiff’s husband had parked their car. The Hawkins family “got out [of] the car and [came] straight through the grass.” “And once [they] got to the grass, there was carpet in that grass, and [they] walked on to the steps. . . .” “As [she was] walking across the grass on the way to the porch [plaintiff saw] the carpet piece in the yard[.] ... It was similar to the piece that was on the porch and on the steps. It was like artificial turf, a thin artificial turf type carpet.”

Defendant Charles Brown shook hands with James Hawkins but left after two or three minutes. Plaintiff descended “two stairs, steps; and because the car was sitting at an angle, [they] walked out this way [across the grass] and [she] — there is a carpet, a carpet piece that was covering this [hole]. [Plaintiff] stepped on the corner of that carpet,. . . blacked out [from ankle pain], and . . . went down on the ground.” That is, she “stepped in the hole,. . . and to the best of [her] knowledge, simultaneously broke [her] ankle and blacked out.”

This hole was “two or three steps . . .” from the walkway. The “left-hand corner of the carpet. . .” covered the hole. Plaintiff’s husband “raised the carpet up, and [discovered] there was a little hole that if you [are not] watching where you are going and your foot go[es] the wrong way you can twist it like that or either break it.” “[I]t’s like a little slosh hole.”

The trial court granted summary judgment, concluding that defendants breached no duty of care owed to plaintiff. This direct appeal followed. Held:

1. Based on the undisputed evidence that plaintiff and her family arrived unannounced for a personal family visit, plaintiff is a social guest. As a social guest she was a licensee and not an invitee. Riley v. Brasunas, 210 Ga. App. 865, 866 (1) (438 SE2d 113). Accord Robinson v. Turner, 164 Ga. App. 515, 516 (297 SE2d 522).

2. Plaintiff enumerates the grant of summary judgment, arguing material fact questions remain for jury resolution.

“The owner of the premises is liable to a licensee only for willful or wanton injury.” OCGA § 51-3-2 (b). This is the rule with respect to static or passive conditions on the land, even where the presence of a trespasser or licensee is actually known. Trammell v. Baird, 262 Ga. 124, 126 (413 SE2d 445). “To the licensee, as to the trespasser, no duty arises of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, man-traps, and things of that character.” Mandeville Mills v. Dale, 2 Ga. App. 607, 609 (1), 610 (58 SE 1060). The question for decision in the case sub judice is whether the small depression in defendants’ residential yard, two or three steps from the concrete sidewalk (that plaintiff did not use), which hole was covered by a corner of indoor-outdoor carpeting, constituted a mantrap, a pitfall, “or other [contrivance] so dangerous in character as to imply a disregard of consequences or a willingness to inflict injury. [Cit.]” Wilder v. Gardner, 39 Ga. App. 608 (1), (2) (147 SE 911). In our judgment, it does not.

“The doctrine of mantrap or pitfall is rested upon the theory that the owner is expecting a trespasser or a licensee and has prepared the premises to do him injury. [Cit.]” Crosby v. Savannah Elec. &c. Co., 114 Ga. App. 193, 195 (1), 198 (150 SE2d 563). The dangerous device in Wilder v. Gardner, 39 Ga. App. 608 (2), supra, was a spring-gun. In Mathis-Akins Concrete Block Co. v. Tucker, 127 Ga. App. 699 (194 SE2d 604), a pit, large enough for the night watchman to fall into, had hitherto been covered by a railroad hopper-car. This was sufficient evidence to authorize a jury instruction on a pitfall. Id. at 700 (3). In Harvill v. Swift & Co., 102 Ga. App. 543, 544, 548 (117 SE2d 202), this Court reversed the grant of defendant’s motion for directed verdict, where that plaintiff drove a delivery truck to defendant’s place of business and “stepped from the dock, the floor of which was approximately three feet high, and his right foot went into an open manhole which was maintained some eight or ten inches from the edge of the unloading dock.” Conversely, in Todd v. Armour & Co., 44 Ga. App. 609 (162 SE 394), this Court held that the maintenance of an “open staircase ‘well’ . . . leading from the outside into the basement of defendant’s building . . .” did not evince wilful and wanton negligence towards that plaintiff, a licensee firefighter. “The instant case [also] differs from that of Smith v. Seawright, 33 Ga. App. 336 [(1)] (126 S. E. 301), in that in the Smith case the duty owed to the plaintiff was not that of a mere licensee, and in that case the open excavation constituting the alleged negligence was situated in such close and dangerous proximity to the sidewalk as to subject one using it in the exercise of ordinary care to the danger of casually falling therein[.]” Todd v. Armour & Co., 44 Ga. App. 609, 610, supra. See also the excellent survey of mantrap cases recited in Crosby v. Savannah Elec. &c. Co., 114 Ga. App. 193, supra at 199-201.

“So long as it is not so close to the traveled way as to constitute a peril to those who may accidentally step aside from the traveled way, a party may excavate upon his land or have holes thereon and this right is not subject to abridgement by parties happening to go out of their way and receiving injuries. See Kohn v. Lovett, 44 Ga. 251[, 257-258]; Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398[, 400] [(39 SE 82)]; Crawford v. Pollard, 55 Ga. App. 702 [(191 SE 162)]; Garner v. Town of East Point, 7 Ga. App. 630 (67 SE 847); McCall v. McCallie, 48 Ga. App. 99[, 101 (hn. 9) (171 SE 843)]; Etheredge v. Central of Ga. R. Co., 122 Ga. 853 [(2)] (50 SE 1003).” Brooks v. Logan, 134 Ga. App. 226, 228 (2), 229 (213 SE2d 916). In the case sub judice, the very existence of a concrete walkway from the parking area to the steps of the porch leading social guests safely to defendants’ residence is sufficient to rebut unsubstantiated allegations that defendants acted wilfully and wantonly towards plaintiff. The passive and static condition of the slosh hole two or three steps from the sidewalk and covered by the corner of the indoor-outdoor carpet also fails to evince wilful or wanton conduct, since plaintiff was not obliged or induced to step across it by any act of defendants. Compare Fotopoulos v. Lamas, 123 Ga. App. 731 (182 SE2d 326). The trial court correctly determined that defendants did not breach the applicable duty of care owed to a licensee.

Decided August 18, 1997

Reconsideration denied August 29, 1997

Kenneth M. Henson, Jr., for appellant.

Hertz & Link, Houston D. Smith III, for appellees.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A97A1250.
    SAMS v. WAL-MART STORES, INC.
    (491 SE2d 517)
   Judge Harold R. Banke.

Audrey Sams sued Wal-Mart Stores, Inc. a/k/a Wal-Mart Discount Cities (“Wal-Mart”) for personal injuries allegedly sustained in a Wal-Mart store. Sams appeals the summary judgment awarded to Wal-Mart.

Viewed in the light most favorable to Sams, the evidence was as follows. While Sams and her husband were shopping in the housewares department for a popcorn popper, two boxes of cookware allegedly struck Sams from behind. Sams asserted that two heavy boxes knocked her to the floor, causing her to fall heavily on her left side, shoulder, hand and wrist. She claimed that her injuries were caused by the unsafe manner in which Wal-Mart stacked the boxes.

It is undisputed that no employees were present in the incident area. However, the parties dispute where and how the boxes were displayed. Sams’ husband testified that although he was not able to say from which shelf the boxes fell, he watched a manager subsequently position the boxes onto a shelf about five feet high. Two store employees contradicted that claim. Housewares department manager, Cynthia Hutto, testified that the cookware boxes were stacked only two boxes high on a base shelf only six inches from the floor. According to Hutto, the merchandise had been stacked in that manner for at least three to four weeks before the incident at issue and there had been no prior problems. An assistant store manager confirmed that the cookware sets were stacked only two boxes high on the base shelf. He testified that at the time of the incident, Sams informed him only one box had struck her and that box had slipped off the lowest shelf. Hutto averred that within ten minutes of the incident, she inspected the aisle where the cookware was displayed and was not able to find any shelves that were overloaded or any boxes that had been improperly stacked. Sams appeals the grant of summary judgment to Wal-Mart. Held:

Sams contends that the existence of material disputed issues of fact precluded summary judgment. We disagree. In order to recover, Sams would have to prove that Wal-Mart had superior knowledge of the allegedly perilous display of the cookware. Westbrook v. M & M Supermarkets, 203 Ga. App. 345 (1) (416 SE2d 857) (1992). The dangerous condition must have been known to Wal-Mart, the proprietor, and unknown to Sams, the invitee, before Sams could recover. Sarantis v. Kroger Co., 201 Ga. App. 552 (411 SE2d 758) (1991).

Sams made no showing that Wal-Mart was actually aware of the allegedly defective manner in which the cookware had been stacked. See Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994). Without actual knowledge, Wal-Mart could only be liable if it had constructive knowledge of the alleged danger. Flood v. Camp Oil Co., 201 Ga. App. 451, 452-453 (411 SE2d 348) (1991). It is uncontested that no employee was in the immediate vicinity who could have easily noticed the alleged danger. Nor had there been any prior similar incidents to give constructive notice to Wal-Mart. Hutto testified that on a regular basis she maintained a lookout for potential hazards such as merchandise improperly stacked on shelves and that she corrected the same. Sams did not offer any evidence that the purportedly dangerous condition had existed for any appreciable amount of time. Compare Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 3 (1) (432 SE2d 230) (1993). It was Sams’ burden to come forward with specific evidence that Wal-Mart’s knowledge of the alleged peril was superior. Minor v. Super Discount Markets, 211 Ga. App. 123, 124 (438 SE2d 384) (1993). This she failed to do.

Decided August 29, 1997.

Lane & Jarriel, Walter J. Lane, Jr., for appellant.

McLain & Merritt, Albert J. Decusati, Howard M. Lessinger, for appellee.

Notwithstanding Sams’ claim to the contrary, the superior knowledge analysis of Cook, supra, is applicable under these facts, not the doctrine of res ipsa loquitur. See Walter v. Orkin Exterminating Co., 192 Ga. App. 621, 623-624 (2) (385 SE2d 725) (1989); Cornelius v. Lawrence, 203 Ga. App. 113, 114 (2) (416 SE2d 115) (1992). Negligence is not to be presumed but is a matter for affirmative proof. Ellis v. Sears Roebuck & Co., 193 Ga. App. 797 (388 SE2d 920) (1989). The doctrine of res ipsa loquitur should be applied with caution and only in extreme cases; and it does not apply when there is an intermediary cause which could have produced the injury. Ballard v. Southern Regional Med. Center, 216 Ga. App. 96, 99 (2) (453 SE2d 123) (1995); see Parker v. Dailey, 226 Ga. 643, 645 (1) (177 SE2d 44) (1970). Here, neither Sams nor her husband were able to testify from where the cookware allegedly fell or how it had been stacked prior to the incident at issue. Because the boxes were within the reach of other customers, Sams cannot show that Wal-Mart retained exclusive control over them. Walter, 192 Ga. App. at 623 (2). Under these facts, Sams cannot utilize res ipsa loquitur to fill the evidentiary gap. Proof of the occurrence of an injury, without more, is insufficient to establish liability on the part of a proprietor. Sarantis, 201 Ga. App. 552.

Sams failed to offer evidence that Wal-Mart had superior knowledge of an allegedly defective condition on its premises. See Cook, 214 Ga. App. at 135 (1). Having shown the absence of an essential element of Sams’ claim, Wal-Mart was entitled to summary judgment as a matter of law. Shansab v. Homart Dev. Co., 205 Ga. App. 448 (1) (422 SE2d 305) (1992).

Judgment affirmed.

Beasley and Smith, JJ, concur.

       Although Wal-Mart cites to deposition testimony, we decline to consider that testimony because the appellate record does not include any depositions.


text:
    A97A1508.
    SMITH v. THE STATE.
    (491 SE2d 519)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of armed robbery and violating Georgia’s Controlled Substances Act. The evidence adduced at trial reveals that defendant and an accomplice robbed a convenience store in Athens, Georgia; that law enforcement officers arrested defendant several'days later at an Athens hotel and that one of the officers found several pieces of “rock cocaine” in the hotel room’s sink and drainpipe. Defendant testified at trial and admitted that he owned one of the rocks of cocaine found in the hotel room, but denied voluntarily participating in the armed robbery. Defendant explained that two men who consumed illegal drugs with him just before the armed robbery compelled him to participate in the crime by displaying pistols that were tucked under their shirts.

The armed robbery was recorded on the convenience store’s surveillance camera. This audio and video recording was admitted into evidence at trial and reveals that defendant was the primary antagonist during the armed robbery. Defendant forced the store’s sales clerk onto the floor at gunpoint, jumped over the sales counter, profanely threatened the clerk and ordered her to open the cash register. Defendant then seized over $100 in cash and fled with an accomplice.

This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his written request to charge on the defense of coerced participation in criminal activity, arguing that the trial court’s pattern charge on this affirmative defense did not “explain that threats and menaces [which excuse criminal conduct do] not have to amount to an actual assault. . . .” Citing Johnson v. State, 253 Ga. 37 (315 SE2d 871), and Nelson v. State, 213 Ga. App. 641, 642 (2) (445 SE2d 543), defendant urges that his request to charge more accurately explained his defense because it “incorporated the following language: ‘(t)hreats, accompanied by menaces, though the menaces do not amount to an actual assault, may, in some instances, be sufficient to arouse a reasonable belief that one’s life is in imminent danger, or that one is in imminent danger of great bodily injury, or that a forcible felony is about to be committed upon one’s person.’ ” (Emphasis omitted.)

“[T]he failure to charge specifically on an affirmative defense will not require reversal if the issues in the case are fairly presented. [Booker v. State, 247 Ga. 74 (274 SE2d 334)].” (Emphasis omitted.) Johnson v. State, 253 Ga. 37, 38, supra. In the case sub judice, the trial court’s jury instruction defined coercion as “the involuntary performance of a criminal act under fear of threats or menaces. . . .” This reference to “threats or menaces” fully and fairly encompasses the threat defendant contends he was under while he was committing the armed robbery. Johnson v. State, 253 Ga. 37, supra, and Nelson v. State, 213 Ga. App. 641, 642 (2), supra, are not controlling in the case sub judice because the challenged charges in those cases did not cover specific elements of the defendants’ affirmative defenses. The trial court therefore did not err in denying his written request to charge on the defense of coerced participation in criminal activity.

Decided August 29, 1997.

Anthony T. Pete, Janet S. Willy, for appellant.

2. Defendant next contends the trial court erred in admitting his custodial videotaped statement, arguing that his request for an attorney under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), was not honored. This contention is not supported by the record.

Although defendant testified at a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) hearing that the interrogating officers did not honor his pre-interrogation requests for an attorney, one of the interrogating officers testified that defendant was fully advised of his Miranda rights before the interrogation; that defendant acknowledged these rights; that defendant waived these rights; that defendant was not coerced into giving a statement and that defendant did not request an attorney. “Unless clearly erroneous, a trial court’s factual determinations relating to the credibility of witnesses and the admissibility of confessions will be upheld on appeal. E.g., Sumpter v. State, 260 Ga. 683 (2) (398 SE2d 12) (1990).” Baird v. State, 207 Ga. App. 44, 45 (4), 46 (427 SE2d 37). In the case sub judice, the trial court’s finding in favor of admissibility of defendant’s videotaped statement was not clearly erroneous.

3. Defendant contends the evidence was insufficient to support his conviction for violating Georgia’s Controlled Substances Act, arguing that the State chemist tested only one of seven pieces of “rock cocaine” found in the hotel room where defendant was arrested. This argument is without merit.

Defendant’s in-court admission that he owned some of the “rock cocaine” found in the hotel room, as well as defendant’s admission that he was an illegal drug user, authorized the jury’s finding that defendant is guilty, beyond a reasonable doubt, of violating Georgia’s Controlled Substances Act. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The State chemist’s testimony simply buttressed this overwhelming evidence of defendant’s guilt.

4. Defendant’s in-court admission that he owned some of the “rock cocaine” found in the hotel room negated his request to charge on “equal access.” The trial court therefore did not err in denying defendant’s request to charge on the “equal access” defense. See Woityra v. State, 213 Ga. App. 89 (1) (443 SE2d 867).

Judgment affirmed.

Beasley and Smith, JJ, concur.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.


author: Blackburn, Judge.

text:
    A97A1343.
    TUCKER v. THE STATE.
    (491 SE2d 420)
   Blackburn, Judge.

David Martin Tucker appeals his convictions of burglary, aggravated sodomy, aggravated assault, false imprisonment, sexual battery, and simple battery. He contends that the trial court improperly admitted his custodial statement into evidence and that the court erred in admitting certain other evidence. For the reasons set forth below, we affirm the convictions.

1. Tucker contends that because he had invoked his constitutional right to counsel at the time he made his custodial statement, the trial court erred by admitting the statement into evidence. He also claims that the trial court erred in admitting the statement because its contents improperly informed the jury that he had invoked his constitutional rights to counsel and silence.

The facts show that the charges which resulted in Tucker’s conviction grew out of his assaults upon two women at different times. At trial, Tucker admitted the charges with respect to the first woman, but denied committing any offense against the second woman. The evidence showed that Tucker entered the second woman’s apartment late at night, held her against her will throughout the night, performed sexual acts upon her without her consent, and then fled the next morning. Police apprehended Tucker several days later in his attic.

Following his arrest, the police attempted to interview Tucker to obtain his statement. Officer Mitch Williams testified that he read Tucker his Miranda rights and informed Tucker what he was charged with in regard to the second woman. He then asked Tucker if he wanted to talk to the officers present regarding the charges. Tucker responded, “I don’t know what to do. I guess I need a lawyer because I wasn’t even there when that happened. I was tied up in the attic with ropes.” After a brief exchange with Officer Williams, the interview ended shortly thereafter.

(a) Tucker contends that his statement, “I guess I need a lawyer because I wasn’t even there when that happened” was an unambiguous invocation of his right to counsel, and pursuant to Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981), all interrogation should have stopped immediately following this request. Alternatively, he cites Hall v. State, 255 Ga. 267 (336 SE2d 812) (1985), and claims that once he made this reference to counsel, the police should have limited their inquiry to the question of whether he wanted counsel. Because the police eventually determined that he did want counsel, Tucker argues that his entire statement should have been inadmissible.

Our Supreme Court recently addressed this issue in Jordan v. State, 267 Ga. 442 (480 SE2d 18) (1997). In Jordan, the defendant told police that he “ ‘thought he might need a lawyer.’ ” Id. at 443. Relying upon Davis v. United States, 512 U. S. 452 (114 SC 2350, 129 LE2d 362) (1994), the Supreme Court of Georgia held that the defendant’s statement that he “thought he might” need an attorney was not “a clear invocation of his right to counsel as would require the cessation of questioning under Edwards v. Arizona” Jordan, supra at 444. Jordan further noted that Edwards requires questioning to cease only when a suspect “has clearly asserted a right to have counsel present during custodial interrogation.” (Emphasis in original.) Jordan, supra at 444.

In this case, Tucker’s statements that he “guessed” he needed a lawyer and that he “didn’t know what to do” are substantially similar to the Jordan defendant’s statement that he “thought he might” need a lawyer. See also Davis, supra, 129 LE2d at 373 (defendant’s statement “ ‘Maybe I should talk to a lawyer’ ” was not an unambiguous request for counsel). “[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” (Punctuation omitted; emphasis in original.) Jordan at 444, quoting Davis, supra. Therefore, as Tucker’s statement was not a clear invocation of his right to counsel, the officers had no obligation to cease questioning him immediately.

Alternatively, Tucker relies upon Hall v. State, supra, to establish the inadmissibility of his statement. In Hall, our Supreme Court held that “after an ambiguous request for counsel, the scope of any further interrogation should be narrowed to an attempt to clarify the nature of the request.” Jordan, supra at 445-446 (1). However, Hall was effectively overruled by Jordan, which noted that Hall had been decided before the United States Supreme Court’s decision in Davis. Jordan, supra at 445. In Davis, the Supreme Court held that, “we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” Davis, supra, 129 LE2d at 373. Accordingly, the officers were not obligated to ask Tucker clarifying questions when he made his ambiguous request for counsel, and all the statements he made up until he clearly invoked his right to counsel were properly admitted by the trial court.

Although Jordan leaves open the possibility that the Georgia Constitution might afford citizens more rights in this area than does the federal constitution as interpreted in Davis, it is clear that Tucker’s claim cannot prevail on any constitutional ground. See Jordan, supra at 446, n. 4. “In this case, [Tucker’s] testimony at trial was substantially the same as the statement which he made to police following his arrest. . . . Under the circumstances, the admission of the statement, even if error, would be harmless error.” (Punctuation omitted.) Creson v. State, 218 Ga. App. 184, 185 (1) (460 SE2d 83) (1995). Such alleged error was further rendered harmless by the testimony of the arresting officer who, without objection, testified that Tucker had told him upon arrest that he had not committed the crimes because he had been bound and gagged in his attic. “Even erroneous admission of evidence will not be grounds for reversal if the same evidence was admitted elsewhere without objection.” (Punctuation omitted.) Burton v. State, 191 Ga. App. 822, 825 (7) (383 SE2d 187) (1989). Accordingly, the trial court did not err in denying Tucker’s motion for mistrial on any of the grounds stated above.

(b) Tucker also contends that the trial court erroneously admitted his custodial statement because its contents improperly informed the jury that he had eventually invoked his constitutional rights to counsel and silence. He relies upon Mallory v. State, 261 Ga. 625 (409 SE2d 839) (1991) for this proposition, wherein it was held that “in criminal cases, a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative. Accordingly, . . . such a comment will not be allowed.” Id. at 630 (5). In Ford v. State, 219 Ga. App. 562 (466 SE2d 11) (1995), this Court applied such rule to a situation where a law enforcement officer testified at trial that a defendant refused to give a statement upon arrest after having been read Miranda warnings. Id. at 563 (2).

After Tucker stated that he had been tied up in his attic with ropes, he invoked his rights to counsel and silence. Accordingly, while his statement regarding the ropes was not inadmissible for any of the reasons stated in the prior division, the fact that he eventually invoked his rights to counsel and silence should not have been admissible. In the process of relating Tucker’s ropes statement to the jury, however, Officer Williams testified that after making such statement, Tucker invoked his rights to counsel and silence. This testimony therefore violated the rules of Mallory and Ford, and was improperly admitted over Tucker’s objection. This is so aside from those issues of admissibility discussed in the prior division.

However, “[i]mproper reference to a defendant’s silence . . . does not automatically require reversal.” (Punctuation omitted.) Ford, supra at 564 (2). In this case, the evidence of Tucker’s guilt was overwhelming. He admitted at trial all of the charges related to the first woman, and there was abundant direct evidence presented regarding his commission of the specified offenses against the second woman. Accordingly, any such error was harmless beyond a reasonable doubt. See Chapman v. State, 263 Ga. 393, 394 (1) (435 SE2d 202) (1993). Reversal on this ground is therefore not warranted.

2. Tucker contends the trial court erred when it overruled his objection to one of the prosecutor’s questions. While cross-examining Tucker, who maintained that he had been bound and gagged in the attic at the pertinent times, the prosecutor asked Tucker if one of the police officers, whose story was different from Tucker’s, was “coming to court and telling a lie.” Tucker conténds that pursuant to Cargill v. State, 255 Ga. 616, 631 (17) (a) (340 SE2d 891) (1986), “it is improper for counsel to ask a witness whether another witness is lying.” Car-gill also states that where, as here, an objection is made to such a question, such objection should be sustained. Id.

Cargill, however, does not demand reversal in this case. “Although, as pointed out by [Tucker], the truthfulness or veracity of a witness is solely within the province of the jury, and we have held that ‘(i)n no circumstances may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth,’ we fail to see how the prosecutor’s question violated these principles. [Tucker’s] response to the question in no way ‘bolstered the veracity’ of any witness, but merely emphasized the conflict in the evidence, which it was the jury’s duty to resolve, and the trial court properly charged the jurors [regarding the determination of witness credibility]. We find no error here.” (Citations omitted.) Little v. State, 194 Ga. App. 361, 362 (2) (390 SE2d 445) (1990); cf. Dorsey v. State, 259 Ga. 809 (3) (387 SE2d 889) (1990) (prosecutor’s question to defendant that “ ‘everybody’s lying about this whole thing but you, is that right?’ ” while argumentative, does not call for defendant to make credibility determinations about testimony of other witnesses).

Decided August 13, 1997

Reconsideration denied September 2, 1997

L. Clark Landrum, for appellant.

C. Paul Bowden, District Attorney, for appellee.

Presuming the trial court erroneously allowed the question, Tucker has not shown how either the question or his response to it harmed him. Inasmuch as harm as well as error must be shown to warrant a reversal, Tucker is not entitled to reversal on this ground, and his argument is accordingly without merit. See Fields v. State, 223 Ga. App. 569, 572 (3) (479 SE2d 393) (1996).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A1457.
    TAYLOR v. THE STATE.
    (491 SE2d 417)
   Blackburn, Judge.

After a bench trial, Patrick John Taylor a/k/a John Patrick Taylor, pro se, appeals his conviction of burglary. Taylor contends that the trial court erred in failing to grant his motion to suppress evidence.

1. “When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. (Citations and punctuation omitted.) Allenbrand v. State, 217 Ga. App. 609 (1) (458 SE2d 382) (1995).” (Punctuation omitted.) State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996).

Taylor was stopped and questioned in a motel parking lot in Tennessee based on a tip that Taylor possessed drugs, which tip was given to police in a nearby town. Taylor was arrested after a pat-down search revealed drugs in three prescription containers on his person. The tipster had described Taylor and another female guest in the motel room who was registered under the tipster’s name. The tipster also gave the police consent to search such motel room. Upon a search of the motel room, the police found more drugs and drug paraphernalia. A drug dog alerted to a locked briefcase, and a search of the briefcase revealed some notebooks, a money belt, three marijuana cigarettes, some jewelry, and burglary tools. During interviews with the police, after his arrest, Taylor admitted involvement in motel burglaries in Georgia. Taylor’s admissions formed the basis for his underlying burglary conviction.

By his motion, Taylor sought to suppress the notebooks and burglary tools found in his locked briefcase. Taylor contends that no exigent circumstances existed sufficient to support the warrantless search of his locked briefcase. Although we agree that no exigent circumstances required that the officers conduct a search of Taylor’s locked briefcase at the scene, we agree with the State that the contents of the briefcase would have been inevitably discovered in an inventory search, and therefore, Taylor’s motion to suppress was properly denied.

The United States Supreme Court has recognized that the “[ejxclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” Nix v. Williams, 467 U. S. 431, 446 (104 SC 2501, 81 LE2d 377) (1984). Therein, the Supreme Court allowed the introduction of evidence illegally obtained based on the theory that the evidence would have inevitably been discovered without reference to police error or misconduct. Id. at 448. Taylor’s reliance on United States v. Chadwick, 433 U. S. 1 (97 SC 2476, 53 LE2d 538) (1977) is misplaced. Therein, the Supreme Court determined that, absent consent, federal agents were required to have a warrant to search a footlocker they seized pursuant to an arrest. Id. at 11. The agents transported the footlocker to a federal building and waited over an hour before opening it. Id. at 4. The agents did not obtain a warrant or consent to search the footlocker. Id. Therein, however, the issue of inevitable discovery was not raised, and there was no evidence regarding inventory procedures. In fact, the Supreme Court specifically distinguished inventory searches from the actions taken by the federal agents therein. Id. at 10, n. 5. In the present case, it is undisputed that Taylor’s briefcase would have been inventoried upon Taylor’s booking at the police station. Trooper Snow testified that they would have taken the briefcase to the station with Taylor where they would have opened the briefcase for an inventory search.

(a) Taylor’s argument that his briefcase could have been inventoried as “one locked briefcase” is without merit. In Staley v. State, 224 Ga. App. 806, 807-808 (1) (482 SE2d 459) (1997), we determined that the police department policy regarding the opening of closed containers during inventory searches governed the reasonableness of an inventory search. See also Florida v. Wells, 495 U. S. 1 (110 SC 1632, 109 LE2d 1) (1990). In the present case, Trooper Snow’s testimony established that the locked briefcase would have been opened in order to inventory its contents.

(b) Taylor’s contention that the search of the briefcase was the result of his improper arrest in the parking lot is also without merit. Pretermitting the appropriateness of Taylor’s arrest in the parking lot for the drugs found on his person, Taylor could have been detained while the officers searched the motel room. After.searching the motel room pursuant to the consent obtained from the registered guest, Taylor could have been arrested for the drugs in the motel room.

“Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop [a person] and conduct a limited investigative inquiry . . . without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. . . . State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991). Whether there are reasonable grounds sufficient to justify an investigatory stop is judged in the totality of the circumstances. Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990); Britton v. State, 220 Ga. App. 120, 122 (469 SE2d 272) (1996).” (Punctuation omitted.) Rider v. State, 222 Ga. App. 602, 603 (475 SE2d 655) (1996).

At the motion to suppress hearing, Trooper Michael Allen with the Tennessee Highway Patrol testified that on September 4, 1994, he investigated a one-car accident. Victoria Ambrose was alone at the scene of the accident. Ambrose consented to a search of the car, and Trooper Allen discovered, among other things, two pistols, drug paraphernalia, and drug residue. Ambrose told Trooper Allen that she was coming from the Holiday Inn in Harriman and that she was en route to Nashville to obtain some dilaudid. Ambrose stated that a motel room at the Holiday Inn was registered in her name, and she gave consent to search the room. She also described the two people who were sharing the motel room with her and who were still located at the motel. The officers on the scene called the Holiday Inn and confirmed that a room was registered in Victoria Ambrose’s name. The officers faxed the signed consent to search the motel room to officers located closer to the Holiday Inn.

Trooper Gary Snow with the Tennessee Highway Patrol testified that he received information from the officers at the scene of Ambrose’s accident that Ambrose gave consent to search her motel room at the Holiday Inn. Trooper Snow testified that as he and two other officers were going to the motel room from the motel office, they noticed Taylor, who fit the description given by Ambrose, coming around the end of the building.

The initial stop of Taylor was based on Ambrose’s admissions, i.e., that drugs were in her motel room, and Ambrose’s tip, i.e., her description of the room’s other occupants, and on the officer’s confirmation of Ambrose’s statement that the motel room was registered in her name. This information justified the officer’s initial stop of Taylor while the room was being searched. The discovery of drugs in the motel room supported Taylor’s arrest.

(c) Taylor’s contention that the warrantless search of the motel room was improper is also without merit. Even assuming that Ambrose had vacated the motel room, as Taylor contends, the evidence supports the trial court’s determination that the officers at the scene reasonably believed that the consent given by Ambrose was valid.

“In Illinois v. Rodriguez, [497 U. S. 177 (110 SC 2793, 111 LE2d 148) (1990)], the Supreme Court held that a warrantless search based on consent. . . could nonetheless be upheld if the law enforcement officer conducting the search reasonably albeit erroneously believed the consent given was valid. Resolution of this issue requires a determination by the factfinder, applying an objective standard, that the facts available to the officer at the time of the search would warrant one of reasonable caution in the belief that the consenting party had authority over the premises.” (Citation and punctuation omitted; emphasis in-original.) State v. Stewart, 203 Ga. App. 829, 830 (418 SE2d 110) (1992).

The officers at the motel had a signed consent to search form from the guest registered to the motel room. Under the circumstances of this case, this evidence supports the trial court’s determination that the officers reasonably believed they had valid consent to search the motel room. Therefore, the trial court did not err in denying Taylor’s motion to suppress the evidence. See id.

2. As Taylor’s remaining enumerations of error are not supported by argument and citation of authority they will not be addressed. See Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Decided August 13, 1997

Reconsideration denied September 2, 1997

Patrick J. Taylor, pro se.

KermitN. McManus, District Attorney, for appellee.

       In his enumerations of error, Taylor asserts that 17 errors require reversal of his conviction; however, only those enumerations of error addressed in his brief with argument and citation to authority will be addressed. See Court of Appeals Rule 27 (c) (2).

       Because the officer who conducted the pat-down search did not testify, we cannot determine whether Taylor’s arrest in the parking lot falls within the “plain feel” doctrine. See Seaman v. State, 214 Ga. App. 878, 879 (2) (449 SE2d 526) (1994) (citing Minnesota v. Dickerson, 508 U. S. 366 (113 SC 2130, 124 LE2d 334) (1993) (if contraband is identified through an officer’s sense of touch in the course of a lawful Terry pat-down, it may be seized).


author: Andrews, Chief Judge.

text:
    A97A1212.
    G.I.R. SYSTEMS, INC. v. LANCE.
    (491 SE2d 530)
   Andrews, Chief Judge.

G.I.R. Systems, Inc. (G.I.R.) appeals from the trial court’s judgment finding it in contempt of a prior order allowing Grady Lance, a minority shareholder, to inspect G.I.R.’s accounting records. G.I.R. brings nine enumerations of error claiming the court erred in allowing the inspection of equipment and records and also in finding G.I.R. in contempt of the prior order.

This is the second appearance of these parties in our Court. The first case, G.I.R. Systems v. Lance, 219 Ga. App. 829 (466 SE2d 597) (1995), arose as the result of a dispute between the majority and minority stockholders in G.I.R. Lance, the minority stockholder and one-time officer and director of G.I.R., and Rehberg, the majority stockholder, president and executive officer, had entered into a stock-purchase agreement in which the shares of G.I.R. stock were valued at $49.15 per share. Lance resigned from the company the next year to set up his own competing business, retaining 30 percent of the stock in G.I.R. Two years later, Rehberg, who held the remaining 70 percent of the stock, voted to lower the value of the stock to $25 a share. Id. at 829.

Lance then requested copies of corporate records under OCGA § 14-2-1602 in order to assess the true value of his stock. When G.I.R. refused to produce some of the records, Lance filed suit asking the court to order G.I.R. to produce them. The trial court granted Lance’s motion for summary judgment, and we upheld it on appeal.

Lance then filed this contempt action against G.I.R. for failure to allow him to inspect some of the equipment and for redacting customer invoices to such an extent that the information was meaningless. The trial court ordered G.I.R. to allow Lance’s accountant and an expert in evaluating fixed assets to inspect the company’s equipment. In addition, the trial court ordered G.I.R. to make available any and all invoices to Lance’s accountant, with only the customer’s name and address redacted. The order also required G.I.R. to pay $1,913.50 in attorney fees. This appeal by G.I.R. followed.

1. In its first enumeration of error, G.I.R. claims the trial court should not have allowed Lance to bring this “Petition for Contempt” as a new action, since it claims the prior case was still open. Pretermitting whether or not G.I.R. can show any harm resulting from the claimed error, nowhere in the record do we find that this issue was ever raised in the trial court. Appellate courts review enumerations for correction of errors of law committed by the trial court. Enumerated errors raised for the first time on appeal present nothing for us to review. See generally Bell v. Forster, 211 Ga. App. 76, 77 (438 SE2d 145) (1993).

2. Second, G.I.R. contends the trial court had no authority to order an inspection of the equipment at the plant. We find this enumeration is moot in light of the fact that Rehberg stated at the hearing that he had no problem with Lance’s accountant inspecting the equipment.

3. G.I.R. also contends the trial court erred in allowing Lance to inspect the invoices showing the type of product sold. At the hearing, the accountant demonstrated that it was necessary to know which product was selling for how much in order to determine the business’s profitability. G.I.R. claims that this information is proprietary as a trade secret.

The testimony at the hearing was that the information redacted was the denier (size) and the ply (strands) of the yarn being sold. After exhaustive testimony on this issue, the trial court found this information was not proprietary and was not being sought for any improper purpose.

OCGA § 14-2-1604 allows for a court-ordered inspection by a shareholder of the corporation’s records if: (1) the shareholder’s demand is made in good faith, for a proper purpose; (2) he describes with reasonable particularity his purpose and the records he desires to inspect; (3) the records are directly connected with his purpose; and (4) the records are to be used only for the stated purpose. OCGA §§ 14-2-1604; 14-2-1602.

“The common law right of a shareholder to inspect the books and records of the company has long been recognized in Georgia. While the statutory language is frequently enlarged over that of its common law ancestry it also places much discretion in the trial judge to determine whether the purpose named is a proper one. . . .” (Citations omitted.) Riser v. Genuine Parts Co., 150 Ga. App. 502, 505 (258 SE2d 184) (1979). After reviewing the record and transcript, we find no abuse of discretion in the trial judge’s determination that Lance be allowed to look at G.I.R.’s invoices with only the name and address of the customer redacted.

4. Next, G.I.R. claims the trial court erred in finding that it wilfully redacted and concealed information. It argues the information redacted would not have been helpful in determining the value of the stock.

“The defenses to both civil and criminal contempt are that the order was not sufficiently definite and certain, was not violated, or that the violation was not wilful (e.g., inability to pay or comply). If there is any evidence in the record to support a trial judge’s determination that a party either has or has not wilfully disobeyed the trial court’s order, the decision of the trial court will be affirmed on appeal. The question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion.” (Citations and punctuation omitted.) Warehouse Carpet Sales &c. v. S.C.J. Assoc., 170 Ga. App. 352, 353 (2) (317 SE2d 328) (1984).

As discussed above, the information redacted was the denier and ply of the yarn. Lance’s accountant testified that the invoices were meaningless without this information. Accordingly, we find no abuse of discretion in the trial judge’s determination that G.I.R. wilfully redacted and concealed information on the invoices.

5. G.I.R. also contends the trial court erred when it found it had wilfully refused to allow Lance to inspect the equipment. In its previous order, the trial court ordered G.I.R. to allow inspection of its “accounting records that would be available for an audit engagement, in compliance with the American Institute of Certified Public Accountants statement on auditing standards. . . .” Also, that “Defendant be allowed to redact, or otherwise conceal or remove information contained in these records that reflect customer lists, product design information, or other confidential information used to maintain Defendant’s competition in the market, provided that no information in these records regarding money spent, earned, invested, or otherwise handled, that may reflect on the valuation of Plaintiff’s shares, be concealed. . .

As to G.I.R.’s claim that the language in the order was not sufficiently certain to allow the court to find them in contempt for refusing to allow inspection of equipment, we agree. Nowhere in the order does the court mention inspection of equipment, only inspection of accounting records. Therefore, the order was not sufficiently definite and certain. Warehouse Carpet, supra at 353. Accordingly, the trial court erred in finding G.I.R. in contempt of its prior order for refusing to allow inspection of the equipment.

6. Next, G.I.R. claims the trial court did not allow G.I.R. to cross-examine Lance’s expert witness with the treatise the expert used as the basis for his testimony. The document complained of is a page from the book of Standards of the American Institute of Certified Public Accountants. The CPA hired by Lance to inspect G.I.R.’s records and assets testified that these standards allow the accountant to inspect and verify “the physical existence of the assets.” G.I.R. objected to the introduction into evidence of just one page and argued that Lance must submit the whole book.

But, G.I.R. can show no harm as a result of the trial court’s not requiring Lance to submit the whole document as evidence. G.I.R. seems to be claiming it had no notice and, therefore, was unable to question the accountant with the whole book. But, G.I.R. does not say how having the whole book would have helped. It cites to no sections in the book which would be relevant to the issue and which it was unable to use because of the court’s ruling.

Moreover, G.I.R. cannot claim that it was not on notice of the existence of the document because the trial court stated in its previous order that “[the court orders] Plaintiff’s agent, an independent, certified public accountant, be allowed to inspect Defendant’s accounting records that would be available for an audit engagement, in compliance with the American Institute of Certified Public Accountants statement on auditing standards. . . .” Moreover, Lance notified G.I.R. that he was relying on this document in a letter written in an attempt to resolve the dispute prior to the court hearing. We find no error.

7. G.I.R. next claims the court had no authority to award attorney fees in a contempt action. We disagree. In Minor v. Minor, 257 Ga. 706, 709 (362 SE2d 208) (1987), the Supreme Court of Georgia held that the prohibition against awarding attorney fees, if it existed at all, was limited to actions for criminal contempt. Where authority exists, and there is no prohibition, attorney fees may be awarded in a contempt action. Id.

OCGA § 13-6-11 allows for the award of attorney fees where the defendant has acted in bad faith, been stubbornly litigious, or caused the plaintiff unnecessary trouble and expense. A trial court’s award of attorney fees under this Code section is to be affirmed if there is any evidence to support it. A.P.S.S., Inc. v. Clary & Assoc., 178 Ga. App. 131 (342 SE2d 375) (1986).

In this case, as discussed above, there was evidence from which the trial court could find that G.I.R. had acted in bad faith, been stubbornly litigious, and caused the plaintiff unnecessary trouble and expense by not providing the information ordered.

As to G.I.R.’s contention that Lance’s counsel failed to show that the expenses incurred were reasonable, G.I.R. does not point to, and we are unable to find, where any objection was raised below as to the amount or the reasonableness of the fees. Accordingly, this enumeration of error is without merit. Bell v. Forster, supra at 77.

Decided September 2, 1997

John T. Longino, for appellant.

Minor, Bell & Neal, Stephen B. Farrow, for appellee.

8. As G.I.R.’s last enumeration of error is unsupported by any argument, citation to the record or showing of harm, we do not address it.

Judgment affirmed in part and reversed in part.

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

       The case was affirmed in part and reversed in part. We found the trial court erred in requiring the corporation to share in the inspection costs incurred by Lance’s accountant. G.I.R., supra at 832.


text:
    A97A1246.
    RICHITT v. SOUTHERN PINE PLANTATIONS, INC.
    (491 SE2d 528)
   Andrews, Chief Judge.

James Richitt appeals from the trial court’s grant of Southern Pine Plantations’ (Southern Pine’s) motion for summary judgment and denial of his motion for partial summary judgment. Richitt claims there are issues of material fact as to whether he should have known the road running through his property was a public road. We disagree and affirm the judgment of the trial court.

The underlying facts in this case are undisputed. On October 30, 1985, Richitt bought two lots totaling 5.43 acres from Southern Pine in a new development called Wesleyan Hills Subdivision. A title search prior to closing did not show any cloud on the title, nor did it show the existence of a public road on the property. Southern Pine also was not aware of the existence of the public road.

Richitt knew there was a dirt road that was still used, and he attempted to block the public’s access to his property by putting a gate up across the road. A short time later, county officials informed him that this was a public roadway and he could not block it.

Richitt filed suit to quiet title, and the special master determined that the roadway in question was Old Benton Road, a public county road, and Richitt’s title to the property was subject to the rights of the county and the members of the public in and to the use of this right-of-way. Richitt then filed this case against Southern Pine for breach of warranty of title under OCGA § 44-5-62. The trial court granted summary judgment to Southern Pine, finding that Richitt knew about the road and knew the road was being used before he closed on the property. Therefore, this knowledge of the public road defeated his claim for breach of warranty of title. This appeal followed.

Both parties agree that if the purchaser knew or should have known of the existence of a public roadway as an encumbrance on the property, it would defeat a claim for breach of warranty of title. Desvergers v. Willis, 56 Ga. 515 (1876); Smith v. Tolbert, 211 Ga. App. 175 (438 SE2d 655) (1993).

Richitt argues the trial court erred in finding he knew or should have known of the existence of the public road because no one ever disclosed the existence of a public road on the property and none of the title searches revealed any problem with the property. He contends that when he inspected the property there were no paved roads, only a narrow, dirt path.

In Smith, supra, relied on by the trial court, the purchasers bought a two-story commercial building in the city of Roswell. The building had a gravel driveway and an alley behind the building for parking. The city claimed title to the alley, and the purchasers brought.a breach of warranty of title claim against the sellers. The purchasers claimed they thought the alley was a “private way.” Id. at 176. This Court found that the purchasers had knowledge of the alley’s existence and therefore had a duty to determine the interest possessed by those using the alley. Id. at 176-177.

' Likewise, in this case, Richitt had knowledge of the road and knew the road was still being used. Richitt testified at his deposition that when he first looked at the property he was concerned because “there was a road going through there, and I had made a statement to Jim about would there be any problem with that pig path of a road. And I was, it was very obvious that people had went down there, and I knew that if people had used some property like that sometimes it was hard to get it squared away.” Richitt also stated that the first time he saw the property he could tell it was used.

Although there are no pictures of the road in question included with the record, it must have been more than a path through the woods because Richitt testified that someone brought “18-wheelers” down the road as part of a logging operation. Moreover, the special master found that the county made substantial improvements and repairs to the road in 1983 so dump trucks could haul dirt from a tract of land located on the road.

Accordingly, Richitt was on notice that the road existed and that it was used; therefore, he was under a duty to inquire about the interest possessed by those using it. Richitt failed to do so, and consequently, the trial court did not err in determining that his warranty claims against Southern Pine must fail. Desvergers, supra; Smith, supra.

Judgment affirmed.

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

Decided September 2, 1997.

G. E. Bo Adams, Edwin S. Varner, Jr., for appellant.

Martin, Snow, Grant & Napier, William H. Larsen, Thomas P. Allen III, for appellee.