author: Eldridge, Judge. Ruffin, Judge,

text:
    A97A0412.
    GARDNER v. THE STATE.
    (483 SE2d 912)
   Eldridge, Judge.

Appellant Tadaris Gardner appeals a Decatur County jury’s verdict finding him guilty of the July 18, 1995 armed robbery of a McDonald’s Restaurant in Bainbridge, Georgia. Appellant’s sole enumeration of error is a challenge to the trial court’s determination that, pursuant to Georgia v. McCollum, 505 U. S. 42, 59 (112 SC 2348, 120 LE2d 33) (1992), appellant’s use of his peremptory strikes was racially motivated. Held:

In a two-pronged argument, appellant contends that the trial court erred in rejecting his race-neutral explanations for striking jurors 40, 41, 54, and 61. Appellant contends that: (a) explanations which are race-neutral on their face must be accepted by the trial court in accordance with the Supreme Court of Georgia’s decision in Jackson v. State, 265 Ga. 897 (463 SE2d 699) (1995); and (b) after the appellant articulated race-neutral reasons for the use of his strikes, the state failed to prove that such strikes were, in fact, racially motivated pursuant to Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995). We address each assertion in turn:

First, appellant asserts that the Supreme Court of Georgia’s decision in Jackson, supra, holds that unless discriminatory intent is inherent in the explanation, the trial court is required as a matter of law to accept the explanation, thereby concluding the inquiry. However, Jackson, supra, does not so hold. In Jackson, supra, is the explicit acknowledgment of the three-step analysis of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), {“Batson”), and by extension, the principles of Georgia v. McCollum, supra (“McCollum”). Accordingly, after a prima facie case is made demonstrating the discriminatory use of strikes, and explanations are given, the trial court determines whether the explanations, even if facially race-neutral, are in fact motivated by discriminatory intent. Jackson, supra at 899. This clear recognition of the trial court’s role in ascertaining the presence of discrimination in otherwise race-neutral explanations has been reiterated by the Supreme Court of this state time and again. “A trial court may also determine that improper discriminatory motive underlay the exercise of a peremptory challenge when the race-neutral explanation proffered by the strikes’ proponent is so implausible or fantastic that it renders the explanation pretextual.” Turner v. State, 267 Ga. 149 (476 SE2d 252) (1996); State v. Adams, 470 SE2d 366, 372 (S.C. 1996); see also Gamble v. State, 257 Ga. 325 (5) (357 SE2d 792) (1987).

Further, the importance of the trial court’s role in identifying discrimination in explanations which may, on the surface, appear legitimate cannot be overstated: “In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the [striker’s] state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’” (Citations omitted.) Hernandez v. New York, 500 U. S. 352, 365 (111 SC 1859, 114 LE2d 395) (1991); Smith v. State, 264 Ga. 449, 454 (448 SE2d 179) (1994); Moak v. State, 222 Ga. App. 36 (473 SE2d 576) (1996); Hightower v. State, 220 Ga. App. 165, 166 (469 SE2d 295) (1996).

Contrary to appellant’s assertions, Jackson, supra, re-affirms the trial court’s role in the detection of discrimination and does not mandate a rubber stamping of any explanation given as long as it is facially race-neutral: step three of the inquiry is the trial court’s determination as to whether it has been proven that “Jackson’s explanation was motivated by discriminatory intent.” Jackson, supra at 899. Moreover, this position has recently been reiterated by the Supreme Court of Georgia in Greene v. State, 266 Ga. 439, 443 (469 SE2d 129) (1996): “[0]nce a race-neutral explanation has been tendered, the trial court must then decide whether purposeful racial discrimination has been proven.” Accordingly, the trial court did not err in refusing to simply accept appellant’s facially race-neutral explanations and in performing its duty to determine whether appellant’s use of his peremptory strikes was racially motivated.

Next, appellant contends that, under Purkett v. Elem, supra, explanations for strikes do not have to be “plausible” or “persuasive” as long as they are race-neutral on their face; appellant contends that he provided the trial court with race-neutral explanations for the use of his strikes, and that the state, thereafter, failed to prove that appellant’s strikes were, in fact, racially motivated. See Jackson, supra at 899. However, appellant’s enumeration of error is framed incorrectly; by granting the McCollum motion and seating the jurors who had previously been struck, the trial court implicitly determined that the opponent of the strike, the state, had met its burden of showing discriminatory intent. Greene, supra at 443; Herrin v. State, 221 Ga. App. 356, 358 (471 SE2d 297) (1996). Once the explanation for the strikes has been proffered, “the inquiry [is] properly framed for the trial court’s determination.” Greene, supra at 443.

This determination can be based on numerous factors, such as the trial court’s disbelief of the explanations, together with elements of the prima facie case; the trial court’s knowledge of the community in relation to the explanations offered; or the trial court’s knowledge of the one utilizing the strike in relation to the explanations offered. St. Mary’s Honor Center v. Hicks, 509 U. S. 502 (113 SC 2742, 125 LE2d 407) (1993); Hernandez, supra at 365-366; Hairston v. Gaines-ville Sun Publishing Co., 9 F3d 913, 914 (11th Cir. 1993). Thus, while additional argument to the trial court may (or may not) aid the opponent of the strike’s persuasive burden, the opponent is not required to introduce evidence beyond that already offered to establish the prima facie case. See Purkett v. Elem, supra 131 LE2d at 838 (following the prima facie showing and subsequent reasons for exercising strikes, the trial court, without explanation, overruled the Batson challenge); St. Mary’s Honor Center, supra, 125 LE2d at 418 (factfinder’s disbelief of reasons put forward by defendant, together with elements of prima facie case, suffice to show intentional discrimination); Batson, supra at 85 (once prima facie showing is made, the trial court undertakes inquiry into such evidence of intent to discriminate as may be available); Hairston, supra at 914 (prima facie case sufficient to establish pretext). In the absence of further argument from the opponent of the strike, the trial court decides whether the proffered explanations are “strong enough to overcome the . . . prima facie case.” Lingo v. State, 263 Ga. 664, 665 (437 SE2d 463) (1993); Ford v. State, 262 Ga. 558, 559 (423 SE2d 245) (1992).

Therefore, appellant’s inquiry, posited properly in a McCollum challenge, should be whether, under Purkett v. Elem, supra, the trial court erred in determining that intentional discrimination existed. And, that way madness lies.

For Batson and McCollum appellate review has been tangled together. This is so primarily because both deal with intentional discrimination in the use of peremptory strikes and because the three step framework of a Batson analysis is used when deciding a McCollum claim at the trial court level. However, claims under Batson and McCollum, upon reaching the appellate level, are in a very different posture. While a trial court’s findings are entitled to “great deference” and will be reversed only if “clearly erroneous” under both Bat-son and McCollum, there is a world of analytic difference in an appellate review of a finding that something does not exist, and an appellate review of a finding that something does exist. The perspective of a deferential appellate review of a McCollum claim is not the same as the perspective of a deferential appellate review of a Batson claim, and thus the expression and application of such deference in deciding a Batson case on appeal does not always provide a comparable expression of deference when applied to a McCollum case on appeal.

Under our current rules of criminal procedure, a Batson or McCollum challenge that reaches the appellate level is, necessarily, brought by a criminal defendant who has lost the battle over peremptory strikes in the trial court. Accordingly, in framing the issues, (1) a Batson claim will always entail a deferential review of the trial court’s finding that racial discrimination was not present, because the trial court denied the defense motion on that basis and permitted the prosecutor’s strikes; and (2) a claim under McCollum will always entail a deferential review of the trial court’s finding that racial discrimination was present, because the trial court disallowed the defense strikes and granted the prosecution motion on that basis. Thus, the focus of the review is, obviously, entirely different. Nonetheless, appellate courts have attempted to apply Batson appellate rationale to McCollum appellate analysis without understanding, or at the very least acknowledging, the completely different perspectives of such reviews. Which leads us to Purkett v. Elem, supra {“Purkett”), a case involving a Batson challenge on appellate review, and the application thereof to appellate analysis under McCollum, specifically, and to Batson/McCollum appellate jurisprudence as a whole.

“The precise formula used for review of factfindings, of course, depends on the context.” (Emphasis supplied.) Hernandez, supra at 365. Thus, in reaching an understanding of the Purkett opinion, one salient contextual point must be understood: Purkett was not addressed to the trial court at all. Nothing about the decision was directory in any way toward the trial court regarding which explanations that body should deem plausible or persuasive, and Purkett in no way expressed the views of the United States Supreme Court regarding what explanations a trial court should consider acceptable in a Batson/McCollum challenge. Purkett was directed solely at procedural aspects of appellate analysis under Batson/McCollum, and it was in the context of a Batson appellate review that the decision in Purkett was written.

In Purkett, the Eighth Circuit Court of Appeals had reversed a trial court’s Batson step three credibility decision that race was not a factor in the prosecution’s use of a challenged strike; the Eighth Circuit had decided that racial motivation was present in the prosecutor’s exercise of the strike, because the prosecutor’s explanation for the strike was implausible — to the Eighth Circuit. However, in affording “great deference” on appellate review to a trial court’s finding, under Batson, that racial discrimination did not exist, the United States Supreme Court directed the Eighth Circuit Court of Appeals to recognize that a nonracial “unpersuasive” or “implausible” explanation, one that was accepted by the trial court, cannot serve as a basis for reversal; the Supreme Court directed the appellate court not to substitute its factual finding that a racial motivation did exist, for the trial court’s finding that no racial motivation existed, merely because the appellate court fqund the race-neutral explanation unpersuasive: “Here the Court of Appeals did not conclude or even attempt to conclude that the state court’s finding of no racial motive was not fairly supported by the record. ... It gave no proper basis for overturning the state court’s finding of no racial motive, a finding which turned primarily on [the trial court’s] assessment of credibility.” (Emphasis supplied.) Purkett, supra, 131 LE2d at 840.

Thus, under Purkett, the ultimate Batson appellate inquiry concerns only whether the trial court’s credibility determination that racial motivation did not exist was clearly in error. Accordingly, a race-neutral, albeit implausible, explanation which is believed by the trial court, must be accepted by the appellate court, regardless of the implausibility. The locus of appellate review is the trial court’s credibility determination as to the believability of the explanations, not the appellate court’s perception regarding the believability of the explanations.

From this context of a deferential review of the trial court’s Bat-son determination comes the language of Purkett cited by appellant in support of his claim that nonracial explanations, alone, are sufficient: “The second step of this process does not demand an explanation that is persuasive, or even plausible. . . . What it means by a legitimate reason’ is not a reason that makes sense, but a reason that does not deny equal protection.” Purkett, supra, 131 LE2d at 839-840. However, contrary to appellant’s assertions, this specific language of Purkett cannot apply in the framework of a deferential McCollum appellate review, such as in the case sub judice, wherein the trial court does not believe the proffered explanations and has determined that racial discrimination is present.

In Purkett, this specific language was directed to the appellate court on a deferential Batson review because the race-neutral aspect of the explanation, regardless of its persuasiveness, provided support for the trial court’s credibility decision that no racial motive existed for the use of the strike, and thus provided “no proper basis” for reversal. Purkett, supra at 840. However, this language of Purkett cannot apply to a McCollum appellate review; not only does this language not provide support for the trial court’s credibility determination, the facially race-neutral aspect of an explanation under McCollum is irrelevant, since the trial court determined a racial motivation existed despite the nonracial aspect of the excuse. Under McCollum, the trial court’s credibility determination (the only reviewable issue under Purkett) was obviously based on factors other than the race-neutral aspect of the explanations.

Moreover, Purkett’s absolute focus on deference to a trial court’s findings as correct is diametrically opposed to the application of this specific language to a McCollum challenge; the selective misapplication of this specific language from Purkett to facially race-neutral excuses under a McCollum appellate review would assure that the trial court’s finding that a racial motivation existed would be incorrect.

Therefore, while the unequivocal message of Purkett, i.e., deference to the trial court’s determinations, applies equally to a claim under either Batson or McCollum, the standpoint from which such deference is expressed and applied, as illustrated by the cited language in Purkett, must be case specific. The language of Purkett, a Batson review, cannot be pulled from the opinion at random and applied to a McCollum review such as the case sub judice, and we decline appellant’s invitation to do so. In the law, all roads do not lead to the same destination.

Clearly, then, the specific language of Purkett must be read in context in order to foster an understanding of the Purkett decision itself, as well as its impact upon Batson/McCollum appellate review.

Perhaps most importantly to an understanding of the Purkett decision and how it applies to Batson/McCollum jurisprudence as a whole is the notion that, at some point, common sense must prevail. Purkett, when taken out of the context of the purpose for the opinion and misapplied as a directive to the trial court, rather than the appellate courts, seems to mandate that, as long as the reason for the strike is race-neutral on its face, the trial court will be unauthorized to find the presence of racial discrimination. Recognizing that few attorneys would actually state an obvious racial reason for the exercise of a peremptory strike, the language of Purkett would seem, as appellant suggests herein, to preclude altogether a finding of racial discrimination in the use of strikes. Yet, in Batson, the United States Supreme Court held that “If. . . general assertions were accepted as rebutting a . . . prima facie case, the Equal Protection Clause ‘would be but a vain and illusory requirement.’ [Cit.]” Batson, supra at 98. Common sense dictates that this same court could not and would not literally overrule a decade of Raison-generated law in a per curiam opinion, Purkett, without benefit of argument or full briefs on the merits, and without specifically saying so. See Parker v. State, 219 Ga. App. 361, 364 (464 SE2d 910) (1995) (Pope, P. J., concurring specially). Moreover, Purkett liberally cites Batson throughout. No. Lucidly, we must come to the conclusion that Purkett had another purpose from that urged by appellant; a purpose revealed to appellate courts only through a dispassionate and frank reading of Purkett.

Some members of the appellate courts may decry the inability to assess a trial court’s Batson/McCollum credibility decisions based on a review of the explanations for the strikes, themselves. Nonetheless, it is the prevention of this appellate practice that is the heart of Purkett, as well as the essence of the Purkett dissent: “I would favor a rule giving the appeals court discretion, based on the sufficiency of the record, to evaluate a prosecutor’s explanation of his strikes.” Purkett, supra, 131 LE2d at 840, 844 (Justice Stevens, dissenting). Purkett, quite simply, applies the brakes to appellate review that, while giving lip service to the “great deference” to be afforded the trial court’s decisions, routinely reverses those courts on the basis of a de novo review of the explanations proffered; this, without taking into account that the trial court’s factual, credibility determinations concerning the use of the strikes may consist of a multitude of factors apart from the explanations offered. See Hernandez, supra at 364-365; Batson, supra at 98; St. Mary’s Honor Center, supra at 418-424; Hairston, supra at 920-921.

The extent of the restrictive impact of Burkett on appellate review under Batson and McCollum is illustrated nowhere as clearly as in Burkett’s directive to the Eighth Circuit Court of Appeals that even those standby Batson appellate analytical considerations, “case related” and “reasonably specific,” were never meant to be tools for an appellate evaluation of the nonracial explanations offered by the proponent of the strike, but were a “warning” for the trial court in those instances where no explanation is offered at all: “The Court of Appeals appears to have seized on our admonition in Batson that to rebut a prima facie case, the proponent of a strike ‘must give a “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges,’ [cits.], and that the reason must be ‘related to the particular case to be tried,’ [cit.]. This warning was meant to refute the notion that a prosecutor could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith.” Burkett, supra, 131 LE2d at 839-840; see also Batson, supra at 98.

As difficult as it may be for some appellate courts to accept, in Burkett, the United States Supreme Court limits the power of appellate review under Batson and McCollum and returns the authority to definitively decide these issues to the trial courts. Thus, the Court in Burkett repeatedly cites Hernandez, supra, which stands for the principle that the believability of the explanations offered by the one exercising the strikes will be based primarily on demeanor and credibility, which determination “lies ‘peculiarly within a trial judge’s province.’” Hernandez, supra at 365; Burkett, supra, 131 LE2d at 839-840 (trial court’s findings turn primarily on an assessment of credibility).

This is not an idle concept. For an appellate court can never be privy to what is actually occurring “in the trenches,” and the factors that make up a trial court’s credibility determination under Batson/ McCollum will often go beyond the mere words that accompany the record before the appellate courts. Only those unfamiliar with the realities of trial work would believe that a cold reading of a Batson/ McCollum transcript provides a sufficient basis for the appellate courts to assess the credibility of the proffered explanations, thereby supplanting the trial court’s credibility decision with an appellate judgment. Such a view gives far too little credit to the trial courts, and idealizes the abilities of the appellate courts. In matters of credibility, we do not “know better.”

That factors beyond the ken of the appellate courts exist in making these credibility determinations is fortuitously illustrated in the case sub judice in which the following exchange occurred after the defense raised a “tit for tat” Batson challenge following the McCollum discussion; the reason given by the prosecutor for the use of a strike against an older black male was the man’s long history of employment by the defense attorney’s family, to which explanation the defense attorney replied: “[Defense:] Your Honor, as to that juror I can simply say that he’s never been employed by me or my father, but he has been employed by an uncle of mine. [Court:] Did he nearly about raise you, Mr. Kirbo? [Defense:] I’ve worked with him, Your Honor. [Court:] From infancy? [Defense:] Seven years old. [Court:] Anything further . . .?” Clearly, the trial court had a unique perspective upon which to base a credibility determination as to the use of strikes or the persuasiveness of counterarguments thereto, i.e., familiarity with the parties involved. This is a legitimate factor in determining credibility and one which the appellate courts, normally, cannot share.

Thus, after a thorough analysis, we understand what Purkett did not do: it did not provide instruction to the trial courts as to what explanations are to be believed under Batson or McCollum, and it did not require the trial court to accept any reason proffered as long as it is race-neutral on its face. Because Purkett was directed at an appellate court’s unwillingness to defer to a trial court’s conclusions, it is clear that Purkett in no way impacts upon a trial court’s duty under Batson or McCollum to determine the credibility of the explanations for the use of peremptory strikes based upon the many factors that may enter into such decision. Hernandez, supra at 364-365; Batson, supra at 98; St. Mary’s Honor Center, supra at 418-424; and Hairston, supra at 920-921.

Further after a candid, straightforward reading, we know what Purkett did do: Purkett insists that the appellate courts defer to the trial court’s findings under Batson or McCollum by evaluating, not the nonracial justifications, themselves, but the trial court’s credibility determination as to the believability of the justifications. “For its [Eighth Circuit] whole focus was upon the reasonableness of the asserted nonracial motive . . . rather than the genuineness [credibility] of the motive.” (Emphasis in original.) Purkett, supra, 131 LE2d at 840.

In sum, and contrary to the assertions of some, Purkett did not “do away” with either Batson or McCollum. The detection of purposeful racial discrimination in the use of peremptory strikes is as important and valid a duty as it ever was. Purkett simply returned that duty and the authority to make these credibility determinations to the appropriate deciding body, the trial court.

This is not a novel approach. Under Batson, the trial court was always supposed to be the appropriate decision-making body with regard to Batson/McCollum challenges. “The trial court then will have the duty to determine if the defendant has established purposeful discrimination.” (Footnote omitted.) Batson, supra at 98. “Nor do we think . . . trial judges will not perform [their duty] under the Constitution.” Id. at 99, n. 22. “ ‘[A] finding of intentional discrimination is a finding of fact.’. . . [T]he trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, [and] a reviewing court ordinarily should give those findings great deference.” (Citations omitted.) Id. at 98, n. 21. Thus, not unlike an analysis under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), an appellate court should not review a factual credibility finding from any perspective other than a demonstration by proof, affirmatively appearing in the record, that the finder of fact’s credibility determination was clearly in error. “A [reviewing] court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts.” Jackson v. Virginia, supra at 326. “ ‘[W]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’ [Cit.]” Hernandez, supra at 369.

Accordingly, we turn now to the case sub judice and a deferential review of the trial court’s step three credibility decision under McCollum that appellant’s nonracial explanations were insufficient to rebut the prima facie case which demonstrated that the exercise of appellant’s strikes was racially motivated as to jurors 40, 41, 54, and 61.

In the case sub judice, appellant used all ten peremptory strikes to remove white jurors, rendering the composition of the jury as twelve black jurors. The trial court found that a prima facie showing had been made so as to require appellant to explain the exercise of his strikes. By way of explanation, appellant asserted that he exercised a strike against juror 40 because the juror was very conservative in nature; a strike was exercised against juror 41 because she was an elderly white lady who lived in the Attapulgus Community and, although she had no knowledge of them, several witnesses and co-defendants lived in that community; a strike was exercised against juror 54 because he was a member of the Decatur County Commission with budgetary responsibilities therefor, and thus, “to some extent he has a financial interest in the outcome of this case”; and a strike was exercised against juror 61 because “older white males are usually more conservative” and because appellant was “trying to get Lillie Mae Gordon on my jury”; it was “very, very important” to reach Ms. Gordon, juror 62.

The trial court found that, with regard to the conservative nature of the jurors and the desire to reach Lillie Gordon, these explanations were not case-related; with regard to juror forty-one, the court noted that at least three black jurors who lived in the Attapulgus Community were not struck and thus, that explanation was pretext; with regard to the Decatur County Commissioner, the court determined that a financial interest in the outcome of the case by virtue of being a county commissioner was not an appropriate reason for the exercise of a strike.

Notwithstanding appellant’s explanations were race-neutral on their face, the trial court found the presence of intentional discrimination apart from the nonracial reasons. Purkett, supra, 131 LE2d at 839 (implausible race-neutral justifications may, and probably will, be found to be pretext). A review of the record demonstrates that appellant did not attempt to relate why being conservative would impact on the instant case, why putting Ms. Gordon on his jury was so “very, very important,” why juror 41’s residence in the Attapulgus Community made her a more likely candidate for the use of a peremptory strike than others similarly situated, or why having an impersonal financial interest in the workings of the county, including the court system, was related to the instant case.

Although the burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strikes, the prima facie showing, under step one, that appellant used all ten of his strikes to remove white jurors was very persuasive indeed. Thereafter, the burden shifted, under step two, to appellant to come forward with legitimate, neutral, clear, and reasonably specific explanations for challenging white jurors. Batson, supra at 98, n. 20. While under Purkett a reviewing court may not evaluate the explanations, themselves, for legitimacy, clarity, and specificity, i.e., “persuasiveness” and “plausibility,” ndthing about Purkett prevents the trial court, under step three, from engaging in such analysis, and Batson insists upon it.

The trial court in the case sub judice determined that appellant’s explanations as to the strikes exercised against the specified jurors were not legitimate, regardless of their nonracial aspect. Based upon the record, this Court cannot say that the trial court was clearly erroneous in choosing to disbelieve the appellant’s explanations, nor has appellant demonstrated such. We do not find error in the court’s credibility determination that appellant’s explanations failed to overcome the prima facie case. Hernandez, supra at 372; Lingo, supra at 666.

Judgment affirmed.

Birdsong, P. J., concurs. Ruffin, J., concurs specially.

Ruffin, Judge,

concurring specially.

I concur in the Court’s judgment, but not in all that is said in the Court’s opinion.

Error and harm are like star-crossed lovers — they meet, and they die together. Where simultaneously present, a prerequisite for reversal, error and harm are mutually illuminating. I agree with the majority that there was no error in this case, and that the correct standard is that set forth in Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995). While I agree with much in the majority’s exegesis, I fear that the opinion obscures, by far, too much. Moreover, I believe that it both skews and obscures a critical issue that is so crucial and central to today’s jurisprudence. As appellate judges we oftentimes find the great in the small, the many in the few, the numberless in the number, the obscure in the obvious, the difficult in the easy, and the trivial in the true, as we say and decide what we should not.

Decided March 12,1997

Kirbo & Kendrick, Bruce W. Kirbo, Jr., for appellant.

J. Brown Moseley, District Attorney, John A. Warr, Assistant District Attorney, for appellee.

The single issue presented in this appeal is whether the appellant’s use of peremptory strikes was racially motivated. Majority opinion, p. 427. While encasing this error in context, we need only examine the issue within the ambit of Georgia v. McCollum, 505 U. S. 42, 59 (112 SC 2348, 120 LE2d 33) (1992).

I do not believe that the instant case, however, requires any new or extensive interpretation of Purkett or McCollum. Purkett clearly establishes that we must exercise restraint in reviewing a trial court’s decision on a McCollum issue. The true precedential value of the instant case lies with the application of the Purkett appellate review standard to the trial court’s decision regarding the defendant’s reasons for striking the subject jurors. Under that standard, I agree that we must affirm the trial court and give great deference to its decision.

       No challenge is made herein to the Batson/McCollum step one prima facie showing made by the state and accepted by the trial court.

       The trial court in the instant case heard explanation for all of the contested strikes, as well as any additional evidence the parties wished to put forward, before rendering a decision regarding the presence of a discriminatory motivation. This is the correct method by which such inquiry should be conducted in order to employ the “totality of the circumstances” analysis which should accompany such determination. Batson, supra at 94; Whatley v. State, 266 Ga. 568, 570 (468 SE2d 751) (1996); Crawford v. State, 220 Ga. App. 786, 788 (470 SE2d 323) (1996); Bess v. State, 187 Ga. App. 185 (369 SE2d 784) (1988).

       Although a challenge under Batson or McCollum may be raised for the improper use of strikes based on gender, as well as race, our analysis will concern only race based strikes and will reference only race. See J. E. B. v. Alabama, 511 U. S. 127 (114 SC 1419, 128 LE2d 89) (1994).

       While the Supreme Court of Georgia in Jackson, supra, discussed Purkett v. Elem, supra, such discussion was dicta. Jackson, supra involved a challenge under McCollum. Under the facts in Jackson, supra, the trial court disallowed the defense strike of a bail bondsman’s wife when defendant Jackson had, in fact, jumped bail and such evidence was likely to come out at trial. The Supreme Court determined that this reason for the use of the defense strike was clearly case-related and specific and that the trial court’s determination was, thus, “clearly erroneous” pursuant to Georgia law as it has stood long before the 1995 decision in Purkett v. Elem, supra. Jackson, supra at 900, citing Gamble, supra.

        Batson, supra at 98, n. 21; Gamble, supra at 327.

       To this end, it must be understood that the Purkett decision remanded the case to the Eighth Circuit, which court could still determine that the trial court was incorrect, as long as the appellate court did so from the proper perspective, i.e., from a review of the credibility determination of the trial court, not a de novo evaluation of the explanations, themselves. Purkett, supra, 131 LE2d at 840.

       The prosecutor exercised a strike to remove a black male because he had long curly hair, a moustache, and a goatee, which combination the prosecutor found to be “suspicious.” Purkett, supra, 131 LE2d at 838.

       Ironically, appellate courts have utilized this language of Purkett in order to dictate to the trial courts the types of explanations that should be acceptable; this language was actually an admonition to the appellate courts to stop substituting their opinions for the trial courts’ judgments concerning which explanations are acceptable.

       The prosecutor provided explanations for his strikes, pretermitting the fact that a prima facie case of discrimination under Batson had not been made.

       A trial court need not ignore the development of a pattern in the use of strikes, or explanations given for strikes, by an attorney who has appeared before the court on numerous occasions. Hernandez, supra at 365. Batson did not overrule Swain v. Alabama, 380 U. S. 202 (85 SC 824, 13 LE2d 759) (1965) and its review of the “systematic use of peremptory challenges . . . over a period of time.” Swain, supra at 227. Instead, Batson served to loosen the evidentiary burden and extend the historical perspective of Swain, supra, so that a prima facie case of discrimination may be raised upon factors present in a single case. Thus, a rebuttable inference of discriminatory intent may be raised from conduct and statistical data. Batson, supra at 93-95. In fact, principles of equal protection, as well as the trial court’s unique opportunity to observe circumstances under which an attorney is responsible for utilizing strikes in a particular pattern beyond the facts of a single case, must impact on the credibility determination under step three. Id. at 92, 96-97. A court’s proceedings do not occur in a vacuum, and the principles of precedence acknowledge that each cause of action does not begin de novo. An inference of purposeful discrimination could be raised when an attorney “ ‘in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of [a suspect class].’ ” (Citation omitted.) Id. at 91-92. “[T)he trial court must undertake a ‘factual inquiry5 that ‘takes into account all possible explanatory factors’ in the particular case. [Cit.]” Id. at 95. Such as in the case sub judice, these credibility determinations occur only in the trial court’s step three analysis regarding the credibility of the explanations for the strikes and may form one of the bases for the trial court’s ultimate determination as to “whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Hernandez, supra at 365.

       Any resident of a county has, “to some extent,” a financial interest in trial proceedings that expend the county court’s time and financial resources.

       Purkett, supra, 131 LE2d at 839.

       Appellant’s argument that his justifications were race-neutral, and thus appropriate, is irrelevant since the trial court based its credibility determination on factors other than the nonracial aspect of the explanations. Further, attempts to put forward before this Court additional reasons for the use of his strikes or belated attempts to relate his explanations to the case sub judice are arguments that were not made in the court below at the time of trial, and thus, were not considered by the trial court in making its credibility decision at the time of trial. Accordingly, these additional arguments will not now be considered as a basis for reversing the trial court’s decision. Baez v. State, 206 Ga. App. 522, 528 (425 SE2d 885) (1992); Brooker v. State, 164 Ga. App. 775, 778 (298 SE2d 48) (1982); see also Lewis v. State, 208 Ga. App. 656, 658 (431 SE2d 445) (1993); Brantley v. State, 177 Ga. App. 13, 14 (338 SE2d 694) (1985).


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A97A1177, A97A1178, A97A1179.
    HALL v. LINAHAN (three cases).
    (484 SE2d 65)
   McMurray, Presiding Judge.

Jackie Hall filed these direct appeals seeking review of the trial court’s orders on Hall’s claims for production of certain documents pursuant to the Open Records Act, OCGA § 50-18-70 et seq. Because Hall is currently in the custody of the Department of Corrections, this appeal is controlled by the Prison Litigation Reform Act of 1996, OCGA § 42-12-1 et seq. Thus, Hall was required to file an application for discretionary review. OCGA § 42-12-8. Failure to file an application requires that these appeals be dismissed. See Jones v. Townsend, 267 Ga. 489 (480 SE2d 24).

Appeals dismissed.

Beasley and Smith, JJ, concur.

Decided March 12,1997.

Jackie Hall, pro se.

Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Carol A. Callaway, Senior Assistant Attorney General, for appellee.


author: McMuRRAY, Presiding Judge.

text:
    A97A1275.
    LEWIS v. COUNTRYWIDE FUNDING CORPORATION.
    (484 SE2d 66)
    Decided March 12,1997.
    A1 Lewis, pro se.

      Shapiro & Swertfeger, L. Jack Swertfeger, Jr., for appellee.
   McMuRRAY, Presiding Judge.

Plaintiff Countrywide Funding Corporation filed this petition for a dispossessory warrant in the State Court of DeKalb County, Georgia, alleging that “Willie Robinson + Occupant” were tenants in possession who failed to pay rent due and demanded rent at the rate of $22.11 per day. Only Willie Robinson answered. On Friday, December 20, 1996, the state court entered judgment on the pleadings, ordering that a dispossessory warrant would issue ten days hence. On Tuesday, December 31, 1996, appellant A1 Lewis, proceeding pro se, filed a notice of appeal in his capacity as defendant-occupant. Held:

OCGA § 44-7-56 provides that any judgment in a landlord/tenant case shall be appealable, provided that any such appeal “shall be filed within ten days of the date such judgment was entered. . . .” “ ‘The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.’ Jordan v. Caldwell, 229 Ga. 343, 344 (191 SE2d 530). In the case sub judice, [defendant’s] notice of appeal is not timely. ‘Accordingly, we are without jurisdiction to consider this case. It must be dismissed.’ White v. White, 188 Ga. App. 556, 557 (373 SE2d 824).” Couch v. United Paperworkers Intl. Union, 224 Ga. App. 721, 722 (482 SE2d 704).

Appeal dismissed.

Beasley and Smith, JJ, concur.


author: Blackburn, Judge.

text:
    A96A1622, A96A1623.
    ROHM & HAAS COMPANY v. GAINESVILLE PAINT & SUPPLY COMPANY et al.; and vice versa.
    (483 SE2d 888)
   Blackburn, Judge.

Rohm & Haas Company (R & H) brought the underlying action to collect on guaranties whereby Gainesville Paint & Supply Company (GPS), through its owner James Peters, guaranteed certain debts which were owed to R & H by Shield Industries. Shield Industries filed bankruptcy before satisfying its R & H account. R & H’s complaint also alleged fraud and RICO violations.

The action was filed originally in the Superior Court of Paulding County and was later transferred to Hall County for proper venue. The only Paulding County resident was then dismissed by R & H. The Hall County Superior Court granted partial summary judgment to the defendants, GPS and Peters, and denied summary judgment to R&H.

In Case No. A96A1622, R&H appeals the trial courts’ rulings on venue and on the parties’ cross-motions for summary judgment. In Case No. A96A1623, GPS and Peters cross-appeal the Paulding County Superior Court’s order declining to exercise jurisdiction to award attorney fees on their motion to transfer venue.

Case No. A96A1622

1. In several enumerations of error, R&H contends the Paul-ding County Superior Court erred in transferring venue and in denying its motion for summary judgment. On November 9, 1994, the Paulding County Superior Court entered its order on defendants’ motion to transfer venue finding that venue was proper as to defendant Annette Sims, but that venue was not proper as to the remaining defendants because the complaint did not allege actions against the defendants as joint tortfeasors. Thereafter, on December 12, 1994, R&H voluntarily dismissed Sims from the action. Sims was the only defendant residing in Paulding County. As no defendant presently in the case resides in Paulding County, jurisdiction could not be proper in Paulding County. Therefore, the questions presented by these enumerations of error have become moot and will not be addressed. See OCGA § 5-6-48 (b) (3); Bond v. Parten, 206 Ga. App. 88, 89 (424 SE2d 353) (1992). Hall County properly exercised jurisdiction over this matter.

2. Upon the transfer of venue to Hall County, GPS and Peters refiled their motion for summary judgment. In several enumerations, R & H contends the Hall County Superior Court erred in granting partial summary judgment to GPS and Peters.

On May 26, 1987, GPS, through Peters, executed a guaranty of payment to R & H, a supplier for Shield Industries, guaranteeing $30,000 worth of goods sold to Shield. On May 24, 1989, GPS, through Peters, executed a $50,000 guaranty to R & H, and on September 5, 1989, a $100,000 guaranty was executed on GPS’ behalf benefitting R & H. By its complaint, R & H demanded payment of $91,788 plus interest, attorney fees, and penalties pursuant to OCGA § 10-7-30.

(a) R & H contends that the trial court erred in determining that the $100,000 guaranty was barred by the Equal Dignity Rule. We cannot agree.

The Equal Dignity Rule is codified at OCGA § 10-6-2 and pertinently provides that “iwjhere the exercise or performance of an agency is by written instrument, the agency shall also be created by written instrument. ... A corporation may create an agent in its usual mode of transacting business and without its corporate seal.” The “legislature excepted the creation of corporate agents from the ‘equal dignity’ rule and . . . permitted corporations to create such agents in their usual mode of transacting business — i.e. shareholder action in the adoption of charters, by-laws, resolutions and similar conduct vesting corporate agents with authority to act.” (Footnote omitted.) Whiteway Neon-Ad v. Opportunities Indus. &c., 243 Ga. 114, 115 (252 SE2d 604) (1979). The acts of corporate agents are valid if such agents were appointed by someone with the “power or authority to make the appointment.” (Citation and punctuation omitted.) Id. at 116.

The $100,000 guaranty is signed with Peters’ name, as the president of GPS. However, it is undisputed that Peters did not actually sign the $100,000 guaranty. Annette Sims deposed that she signed Peters’ name to the guaranty after Peters directed her to do so during a telephone conversation. Peters denies directing Sims to sign his name to the guaranty. It is further undisputed that Sims worked for Shield Industries and did not work for GPS or Peters. The only evidence that Sims was ever an agent of GPS is her own testimony that Peters instructed her to sign his name. The record contains no evidence regarding Peters’ authority to verbally appoint agents to bind GPS. Furthermore, the evidence in the record establishes that it was not GPS’ practice or normal course of business to verbally authorize non-employees to sign for its principals.

In light of Peters’ affidavit, under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), R & H has the burden of presenting evidence that Sims was appointed GPS’ agent in GPS’ usual mode of transacting business. R & H did not satisfy this burden, and the trial court did not err in granting defendants’ motion for summary judgment on this issue.

The Whiteway Neon-Ad case supports this position as it was therein determined that the Equal Dignity Rule applies to corporations but that where corporate formalities are observed, the corporation’s agents have authority to execute documents required to be in writing without showing written authority. Also, Johnston v. Crawley, 15 Ga. 316 (1858), cited in Whiteway Neon-Ad indicates that if the agent is appointed by someone with the “power or authority to make the appointment, there can be no question of its validity.” Whiteway Neon-Ad, supra at 116. In the present case, because Sims was not even an employee of GPS and there is no evidence regarding Peters’ authority to appoint agents (for instance the by-laws could require such agents to be appointed by a vote of the directors), the Equal Dignity Rule requires her authority to be in writing. Therefore, under the facts presented, the Equal Dignity Rule would preclude the enforcement of the $100,000 guaranty.

(b) R & H asserts that the trial court erred in determining that the guaranties were not cumulative. Our review of the contract language indicates that it is ambiguous, and the evidence indicates that the parties intended that the guaranties were not cumulative.

The guaranties at issue contain identical language with the exception of the amount, to wit: “Guarantor’s obligation to guarantee payment for goods sold to, and interest incurred by, Purchaser is limited to an amount not in excess of $_.” The guaranties further provide that: “This Guaranty is independent of any other [guaranties] given for the account of Purchaser.”

“The cardinal rule of contract construction is to ascertain the intention of the parties. OCGA § 13-2-3. Contract construction is a three-step process. Initially, the construction of the contract is a question of law for the court. First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. That is, where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Secondly, if ambiguity does appear, the existence or nonexistence of an ambiguity is itself a question of law for the court. Finally, a jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction. This is true even if the contract is difficult to construe. Further, a contract should be construed by examining the agreement in its entirety, and not merely by examining isolated clauses and provisions thereof.” (Citations and punctuation omitted.) Richard Haney Ford v. Ford Dealer Computer Sues., 218 Ga. App. 315, 316 (1) (b) (461 SE2d 282) (1995).

We must construe the present guaranties strictly in the interest of the surety. See OCGA § 10-7-3. In the present case, the absolute limit of liability for payment of goods sold in each guaranty creates an ambiguity as to whether they are cumulative. Furthermore it is clear from the evidence that the parties did not intend for the guaranties to be cumulative. Sue Hilburn, regional credit manager for R & H, deposed that at the time the $50,000 guaranty was signed, it was the parties’ intention that it replace the $30,000 guaranty. Additionally, Peters averred that when he signed the $50,000 guaranty, he intended that it replace the $30,000 guaranty. Therefore, in light of the ambiguous contract language and the clear evidence of the parties’ intentions, we find that the trial court correctly determined that the guaranties were not cumulative.

3. R & H contends that the trial court erred in denying its motion for summary judgment through which it sought to enforce the $30,000 and the $50,000 guaranties. The trial court determined that a jury issue remained as to whether sufficient consideration was given for the guaranties. As we have previously determined that the $50,000 guaranty replaced the $30,000 guaranty, our analysis concerns only the $50,000 guaranty.

The guaranty itself contains recitals of consideration and further provides: “In order to induce the Seller to extend credit privileges on open account terms.to the Purchaser, the Guarantor, intending to be legally bound hereby agrees as follows.” Furthermore, after the $30,000 and the $50,000 guaranties were signed, R & H sent letters to GPS stating: “In a few days under separate cover, as consideration and in appreciation, we shall send you one dollar embedded in Plexiglas. It is a privilege to be a supplier of Shield Industries, Inc., made possible by your [guaranty], and we shall strive to assure our best service!”

“The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another in consideration of a benefit flowing to the surety or in consideration of credit. . . given to his principal.” OCGA § 10-7-1. In the present case, it is undisputed that credit was extended to Shield Industries and that additional credit was extended after the $50,000 guaranty was signed. See First Union Nat. Bank &c. v. Gurley, 208 Ga. App. 647, 650 (431 SE2d 379) (1993); Virgil v. Kapplin, 187 Ga. App. 206, 208 (369 SE2d 808) (1988). It is irrelevant that Shield Industries’ debt with GPS was not fully secured by the $50,000 guaranty if the consideration for the $50,000 was that additional credit would be issued. Therefore, the trial court erred in failing to grant R & H’s motion for summary judgment on the enforceability of the $50,000 guaranty.

4. By two enumerations of error, R & H contends that the trial court erred in denying its motion for summary judgment on the issue of attorney fees and interest. The guaranties clearly obligate GPS to pay attorney fees and interest, and such payment is authorized by OCGA § 13-1-11, where proper notice is given. We have previously determined that notice in the plaintiff’s complaint that such amounts are sought is sufficient to invoke OCGA § 13-1-11. See Shier v. Price, 152 Ga. App. 593, 595 (263 SE2d 466) (1979). As R & H gave notice in its amended complaint, we find that attorney fees and interest are authorized. Although, the guaranties limit GPS’ liability with respect to payment for goods and interest, the wording of the guaranties does not similarly limit the amount paid for attorney fees. Therefore, the trial court erred in denying R & H’s motion with regard to attorney fees, but not with regard to interest.

5. By two enumerations of error, R & H contends that the trial court erred in determining that Peters and GPS did not commit fraud or violate the Georgia RICO statute.

(a) “To avoid summary judgment, [R & H] had to present evidence of the elements of its fraud claim: a false representation by [GPS or Peters], scienter, an intention to induce [R & H] to act in reliance, justifiable reliance and damages.” Riviera Finance v. McBride, 221 Ga. App. 321, 322 (471 SE2d 233) (1996). We agree with the trial court that R & H failed to present evidence of a false representation of GPS or Peters upon which it relied. Although R & H asserts that Peters made “[a]n intentional statement to Annette Sims and others to sign his name to the [$100,000] Guaranty,” this is not the type of representation covered by fraud. See generally OCGA §§ 51-6-1 and 51-6-2. Either the statement was made or it was not made, but it was not a false representation upon which R & H relied.

(b) “A private cause of action is created in favor of persons injured by violations of OCGA § 16-14-4, by the language of OCGA § 16-14-6 (c). The relevant portion of OCGA § 16-14-4 reads as follows: ‘(a) It is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property or personal property of any nature including money. (Emphasis added.)’

“Thus, the conduct prohibited by the act is the acquisition of (in this case) money through a ‘pattern of racketeering activity.’ The act further provides that ‘pattern’ means engaging in at least two incidents of racketeering activity. OCGA § 16-14-3 (2). Finally, ‘racketeering activity’ is defined to mean the commission of a crime in any of thirty-one specified categories of offenses (known as predicate offenses). OCGA § 16-14-3 (3).” State of Ga. v. Shearson Lehman Bros., 188 Ga. App. 120, 121 (372 SE2d 276) (1988).

After our de novo review of the record, we agree with the trial court that no evidence of Georgia RICO violations was produced by R & H. Therefore, the trial court’s grant of GPS’ motion for summary judgment on R & H’s claims for fraud and Georgia RICO violations was not erroneous.

Case No. A96A1623

6. GPS and Peters contend that the Paulding County Superior Court erred by determining it did not have jurisdiction to rule on their motion for attorney fees associated with their motion to change venue.

GPS and Peters actually filed their motion for attorney fees twice. Originally, they filed it along with their motion to transfer venue to Hall County. The trial court granted the motion to transfer venue, but did not rule on the motion for attorney fees. We have previously determined that such a nonaction with respect to a motion properly before the trial court amounts to a denial thereof. See Hewett v. Carter, 215 Ga. App. 429, 430 (450 SE2d 843) (1994); Coffee Butler Svc. v. Sacha, 208 Ga. App. 4, 6 (430 SE2d 149) (1993). After the case was transferred to Hall County, GPS and Peters refiled their motion for attorney fees in Paulding County. As the trial court had already implicitly denied the motion and the case had been transferred to Hall County, the Paulding County court did not err in determining it lacked jurisdiction to review the refiled motion.

Judgment affirmed in Case No. A96A1623. Judgment affirmed in part and reversed in part in Case No. A96A1622.

Birdsong, P. J, and Beasley, J., concur.

Decided February 28,1997

Reconsideration denied March 13,1997.

John T Longino, for appellant.

Hicks, Maloof & Campbell, John P. Hutchins, James D. Dantzler, Jr., for appellees.

       Shield Industries was owned by defendants James Parson and Peters. Peters owned less than one-half of Shield’s stock, and Parson operated the company. GPS was wholly owned by Peters.
      Defendant Parson failed to answer the complaint and is not involved in this appeal.

       “Independent” is defined as “(b) (1): not requiring or relying on something else (as for existence, operation, efficiency): not contingent: not conditioned. . . . (2): being or acting free of the influence of something else.” Webster’s Third New International Dictionary, 1148 (1966).

       We note that the guaranties also contain a choice of law provision requiring that Pennsylvania law govern. Neither party asserted this provision, and, in fact, both parties presented Georgia law to the court below and to this Court. Therefore, the choice of law provision has been modified by the parties’ mutual departure from the contract terms. See OCGA § 13-4-4.

        Tench v. U. S. Tsubaki, 191 Ga. App. 248 (381 SE2d 319) (1989), cited by R & H, does not apply to the present case, as the guaranty in Tench did not contain an absolute limit of liability for goods sold to and interest by the purchaser.


author: Andrews, Chief Judge.

text:
    A96A1694.
    NOWLIN v. THE STATE.
    (484 SE2d 14)
   Andrews, Chief Judge.

Darnell Nowlin appeals from denial of his motion for new trial on his conviction for armed robbery and kidnapping of McClellan, and possession of a firearm during commission of a felony.

1. Viewed with all inferences in favor of the jury’s verdict, Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367) (1991), the evidence was that, on February 2, 1995, McClellan was the assistant manager of the Snellville 14 Oaks movie complex. She had released all employees except the projectionist Watts shortly after the last movie had started at 10:30 p.m.

After compiling the receipts, she had made the night deposit at the bank around midnight, accompanied by Officer Smith. Upon returning to the theater, McClellan asked Smith to come in and stay in the lobby because of several recent theater robberies in the metro area. Watts had checked the viewing rooms during the last show and saw only 11 customers in the entire complex. There were only two black customers for the late show that evening, one male and one female, who went into viewing room 12 where Disclosure was showing. There were no customers in viewing room 14.

Earlier, while Watts was playing video games in the lobby, around 11:15 or 11:30 p.m., the black female approached him and asked what time Disclosure was over and if it was the last movie to get out. After McClellan and Officer Smith returned from making the bank deposit, Smith asked her for some change so he could play video games. She went toward the office and passed a black woman in the hallway. As she turned a corner to go into the office and noticed the door ajar, she heard someone walking and turned around to confront a black man about two feet from her holding a silver automatic pistol. He told her to hush and turn around and then grabbed her arm. He directed her to the office and, as she started to walk, he began to push her. He took her first to the storage room door and then to the office, a total of 100 feet or more. The man maintained his hold on her the entire time. Although she could not open the manager’s safe, she did have the combination to the store safe and opened it for the gunman. As she did so, he took her key ring, which had keys for every lock in the theater on it.

McClellan then heard a black female voice over the man’s walkie talkie telling him there was a police officer in the lobby. McClellan had also seen only one black couple in the theater for the last show. After the walkie talkie communication, the man told her to lie on the floor face down, which she did. He then tied her feet and hands with flexicuffs and asked how to get out.

Watts, in the lobby near the alarm panel, noticed that the emergency exit door had been opened in viewing room 14 even though no one had been watching a movie there. Watts and Officer Smith discovered and freed McClellan. Watts then checked Disclosure, finding that the couple had left. Although the theater and parking lot were searched, McClellan’s keys were not located.

McClellan identified Nowlin as the man who robbed her. The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Nowlin’s first enumeration is that the trial court erred in denying his motion to suppress identification information obtained by the police from an investigatory traffic stop.

Pretermitting whether a motion to suppress was the appropriate mechanism for raising this issue, see State v. Johnston, 249 Ga. 413 (1) (291 SE2d 543) (1982), and the timeliness of this motion, we consider the trial court’s denial of it.

Nowlin’s identity was discovered during an investigatory stop made in the early morning hours of December 30, 1994 by Gwinnett Officer Head. Because of the spate of theater robberies, composite drawings of a male and female suspect had been distributed to area theaters. Late on December 29, Officer Head was dispatched to the Snellville Septum Cinemas to check out a suspicious person report. The manager showed him the composite and said that she believed the woman depicted was in the theater with a man. At that time, the woman walked into the lobby and Head could see that her facial features were similar to the composite. Officer Head and his partner decided to conduct surveillance and watched from the game room. They saw the woman walk outside the theater, walk from one end of the building to the other, and then return to the movie. Also, during the movie, both the man and woman went outside the theater once and returned. When the movie ended around 11:25 p.m., the woman left but the man went into another movie and did not leave until 30 minutes later. An officer outside in his personal car saw the woman pick the man up in a white Ford Tempo and notified Head who then picked the car up as it left a restaurant parking lot and followed it about a mile in order to get out of a populated area. Officer Head pulled the car over and asked for identification from the woman driver and the male passenger. The driver was co-defendant Morgan and the passenger was Nowlin. Also, Officer Head observed in the back seat of the car a gym-type bag in which he saw flexicuffs. The stop lasted approximately ten minutes during which the officer ran a computer check on the licenses.

“Even in the absence of probable cause, a police officer ‘may stop an automobile and conduct a limited investigative inquiry of its occupants . . . 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.’ [Cit.] During this detention, the police, for example, may attempt to determine the person’s identity, [State v. Misuraca, 157 Ga. App. 361, 365 (276 SE2d 679) (1981)] and ask for a display of driver’s license and vehicle registration. [Cit.]” Mallarino v. State, 190 Ga. App. 398, 401 (2) (379 SE2d 210) (1989).

We agree with the trial court and adopt his reasoning that this stop was premised upon such a reasonable suspicion. State v. Wright, 221 Ga. App. 202, 205 (3) (470 SE2d 916) (1996); Edwards v. State, 219 Ga. App. 239, 243 (3) (464 SE2d 851) (1995).

3. Nowlin complains of the denial of his motion in limine which sought to preclude in-court identification by “witnesses” who had been shown a composite drawing of a male suspect.

The only witness who testified that they had been shown the composite before making a photo spread identification, however, was Eric Jones, a witness to a Fayette County robbery introduced as a similar crime. He was not shown the composite by the police, however, but by his manager.

Even assuming that a composite produced from witnesses’ descriptions of a suspect can be said to be suggestive at all, see Clark v. State, 149 Ga. App. 641, 643 (1) (255 SE2d 110) (1979), “[t]he issue here is not the possible taint of identification due to suggestive pretrial procedures but, rather, the credibility of eyewitnesses to the incident. The due process protection of the Fourteenth Amendment to the United States Constitution protects the citizens against state action rather than against citizen action. In order for the Fourteenth Amendment to come into play in an identification procedure, state action must be involved. [Cit.]” Lyons v. State, 247 Ga. 465, 467 (277 SE2d 244) (1981).

There being no state action here, there was no error in denial of the motion in limine.

4. The third enumeration is that similar transactions were allowed into evidence without “timely and sufficient notice” under Uniform Superior Court Rule 31.1.

The State served discovery materials on Nowlin on October 3, 1995, including information on two of the three similar transactions. Notice pursuant to Rule 31.1 was mailed to counsel for Nowlin on November 3, before the trial began on November 13, 1995. The Rule requires notice “shall be given and filed at least ten days before trial unless the time is shortened or lengthened by the judge.” The trial court found that notice was given by mailing on November 3 and, even if not timely, he in his discretion determined that the notice contained in previous filings was sufficient. We find no abuse of discretion in this determination. Quinn v. State, 221 Ga. App. 399, 403 (4) (471 SE2d 337) (1996).

Nowlin’s argument that the notice was insufficient because it did not specify for which of the allowable purposes the evidence was tendered is contradicted by one of the cases he cited, Hightower v. State, 210 Ga. App. 386, 387 (2) (436 SE2d 28) (1993). Additionally, that purpose, to prove identity, became apparent at the Rule 31.1 hearing. There, was no error.

5. Nowlin’s final enumeration of error is that the court erred in not granting his motion for mistrial as a result of witness Turner’s “testimony regarding the identity of an individual who allegedly robbed her at the Roswell Mall Cinemas.”

During the Rule 31.1 hearing, Detective Anastasio testified that Susan Turner, assistant manager of the Roswell Cinema which was robbed of $2,000 during the late show on October 26, 1994, had identified Nowlin as the man with the gun. The court found the incident admissible based on this. When Turner took the stand, however, she testified that she could not identify the man who had the gun.

The court sustained Nowlin’s objection to this testimony, admonished the prosecutor, and instructed the jury that “[t]he Court has completely and in totality excluded all of her testimony. You are to act in your deliberations as though she never took the witness stand. Any incident, any mention of anything dealing with Roswell, and a robbery, armed robbery in Roswell, will be totally excluded from your deliberations. It will be eradicated from your memory, and you will remember it no more is the instructions of this Court.” The court denied Nowlin’s renewed motion for mistrial.

Whether to grant or refuse a mistrial under these circumstances is a matter largely within the discretion of the trial judge which will not be interfered with absent a finding that a mistrial is essential to the preservation of the right to a fair trial. Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982). Here, Turner did not implicate Nowlin and the court immediately took corrective steps. While we strongly disapprove of the State’s lack of preparation of this witness or knowledge of its case, we find the trial court’s instruction and rebuke of the prosecutor sufficient to remove any improper impression in the jurors’ minds. Schirato v. State, 260 Ga. 170, 171 (4) (391 SE2d 116) (1990); Willingham v. State, 212 Ga. App. 457, 458 (442 SE2d 4) (1994).

Decided February 24,1997

Reconsideration denied March 13,1997

Wolfe & Steel, Larry D. Wolfe, for appellant.

Daniel J. Porter, District Attorney, Jefferson B. Blandford, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Senior Appellate Judge Harold R. Banke concur.

       Nowlin was tried with co-defendant Morgan, whose conviction is not involved in this appeal.

       A white Tempo was mentioned at roll call as possibly involved in these robberies.


text:
    A96A2369.
    UDM TECHNOLOGY, INC. et al. v. STERLING SOFTWARE (SOUTHERN), INC.
    (484 SE2d 3)
   Blackburn, Judge.

UDM Technology, Inc., Joseph Flaherty, Jr., and Michael Attell (collectively, UDM) appeal the grant of summary judgment to Sterling Software (Southern), Inc. (Sterling) on UDM’s claim for royalties due under an agreement for the sale of software technology. UDM claims the trial court erred in finding that there were no genuine issues of material fact regarding its entitlement to certain royalties.

In 1991, UDM and Sterling entered into a purchase agreement pursuant to which UDM sold certain software technology it had invented to Sterling. As part of the consideration for such sale, Sterling agreed to pay royalties to UDM on net revenues generated from commercial licenses of software products developed from the UDM technology. The only product actually developed and marketed by Sterling using the UDM technology was a software product known as CWS/GUI.

UDM sued Sterling for its alleged failure to pay all royalties due under the agreement, and appeals the trial court’s grant of summary judgment in favor of Sterling.

1. For a fee, Sterling would often enter into maintenance contracts with customers purchasing its software products. These maintenance contracts provided that, among other things, the customers would be entitled to receive upgrades or enhancements of the CWS/ GUI product at no extra charge. UDM argues that a factual dispute exists regarding its entitlement to royalties on revenues generated by such maintenance contracts.

The purchase agreement provided that “maintenance fees” were to be excluded from net revenues in calculating royalties, but did not define the term “maintenance fees.” UDM argues that such term was not intended to include revenues from the provision of product upgrades, and that it is entitled to royalties on such revenues even if the upgrades are provided pursuant to a maintenance contract. Sterling, however, argues that “maintenance” is a technical term understood in the industry to include the provision of product upgrades, and that UDM is thus not entitled to royalties on any portion of the revenues Sterling receives from its maintenance contracts.

In the construction of a contract, the cardinal rule is to ascertain the intention of the parties. McVay v. Anderson, 221 Ga. 381, 385 (144 SE2d 741) (1965). “The construction of a contract is a question of law for the court. Where any matter of fact is involved, the jury should find the fact.” OCGA § 13-2-1. “Construction of ambiguous contracts is the duty of the court, and no jury question is raised unless after application of the pertinent rules of construction the ambiguity remains.” Erquitt v. Solomon, 135 Ga. App. 502, 503 (218 SE2d 172) (1975). However, if the court cannot resolve the ambiguity by application of the pertinent rules of construction, the intention of the parties is a question for the jury. U. S. Enterprises v. Mikado Custom Tailors, 250 Ga. 415, 416 (297 SE2d 290) (1982); Williams v. McCoy Lumber Indus., 146 Ga. App. 380, 382-383 (246 SE2d 410) (1978).

At issue in the present case is the rule of construction that “[wjords generally bear their usual and common signification; but technical words, words of art, or words used in a particular trade or business will be construed, generally, to be used in reference to this peculiar meaning.” OCGA § 13-2-2 (2).

In support of its argument that “maintenance” is a technical term understood in the industry to include the provision of product upgrades, Sterling presented the affidavit of Chelton D. Tánger, an employee of the accounting firm Coopers & Lybrand (Coopers). Tánger stated that he was often involved in reviewing software license agreements to be entered into by Coopers, and that, in each such instance, Coopers entered into a maintenance agreement with the software vendor providing that Coopers would receive software upgrades. However, this testimony is limited to maintenance agreements negotiated and entered into by one company, and thus does not establish trade usage. Furthermore, this testimony at most establishes that the obligation to provide product enhancements is often bargained for and included in maintenance agreements, not that, the term “maintenance,” standing alone, has a trade meaning which includes such obligation.

Attached to Tanger’s affidavit is a copy of Statement of Position 91-1 issued by the American Institute of Certified Public Accountants (SOP 91-1), dealing with software revenue recognition. Tánger relied on this document to establish the trade meaning of the term “maintenance.” However, SOP 91-1 was not issued until after the purchase agreement was executed, and was actually issued in an attempt to bring consistency to varied accounting practices for software revenue recognition. Furthermore, SOP 91-1 uses the term “postcontract customer support” rather than “maintenance,” noting that “[the term ‘maintenance’] may be confused with hardware maintenance . . . , and its meaning varies from company to company.” Accordingly, SOP 91-1 does not establish as a matter of law that the term “maintenance” had a commonly understood meaning in the industry at the time the purchase agreement was entered into.

In addition, one of Sterling’s employees testified that software companies deal differently with the issue of whether product enhancements are to be included in a maintenance price or whether they are to be charged separately. He suggested this could depend on whether the upgrades are minor changes to address software problems or are major enhancements.

The evidence of record thus does not establish as a matter of law that, at the time the purchase agreement was entered into, the term “maintenance” was a technical term commonly understood in the industry as including the obligation to provide software upgrades. Thus, there is a genuine dispute as to the intent of the parties in using the term “maintenance,” and this Court is unable to resolve the dispute by application of rules of construction. Accordingly, the parties’ intent is a question for the jury, and the trial court erred by holding as a matter of law that all revenues derived from Sterling’s maintenance contracts are excluded from net revenues in the calculation of royalties due UDM. See Williams, supra at 382-383 (2).

2. UDM also argues that the trial court erred in failing to find a factual dispute regarding its entitlement to royalties on “master” or “site” license agreements, an arrangement in which the CWS/GUI product was packaged with other software products and licensed to customers for a flat fee.

The purchase agreement provides that UDM is entitled to royalties on all net revenues “actually received by [Sterling] from commercial licenses of the Developed Product(s) [i.e., products developed from the UDM technology] to end users.” However, the agreement is silent as to how to calculate the revenue attributable to the CWS/ GUI product when it is licensed to customers for a flat fee as part of a package containing other software products. UDM argued before the trial court that it was entitled to royalties based upon the entire package price. In support of this position, UDM pointed to a provision in the agreement providing that Sterling had the authority “to offer the Developed Product(s) separately and/or in combination with other [Sterling] materials or products.” Because the agreement anticipated the licensing of developed products in packages with other products, but did not provide a way to apportion the revenues received among the various products, UDM asserted that it was entitled to royalties on the entire package price.

Sterling, however, urged the trial court to adopt a process for calculating royalties based on the amount a customer actually used the CWS/GUI product. Under this proposal, Sterling would survey its customers 18 months after they purchased software packages to determine how often the customers used CWS/GUI as opposed to other products. The royalties owed to UDM would then be calculated based on the actual usage of CWS/GUI by the customers.

In its order granting summary judgment to Sterling, the trial court found that “apportionment of the revenue attributable to the software technology at issue [is] appropriate. The Court further finds the . . . royalty calculation method proposed by [Sterling] is an appropriate method for the calculation of royalties owed to the Plaintiff from revenues generated by the master license arrangements.”

The trial court correctly found that the purchase agreement requires apportionment of revenue derived from package sales into revenue attributable to CWS/GUI (on which royalties must be paid) and revenue attributable to other products. UDM’s argument that it is entitled to royalties on all revenues generated from package sales is unreasonable, as the agreement clearly defines net revenues as revenues received by Sterling from commercial licenses “of the Developed Product(s).” Therefore, it is clear that the agreement requires some form of apportionment of package sale revenues.

However, the trial court erred in adopting the royalty calculation method proposed by Sterling. In construing a contract, the court is required to ascertain the intent of the parties. McVay, supra. The proposal urged by Sterling is clearly not based on an interpretation of the parties’ intent, but on an evaluation of what would constitute a fair settlement of the parties’ dispute. The agreement clearly contemplated that UDM’s royalties would be based on the revenue received by Sterling, not on the amount a customer used the product. The revenue received by Sterling does not depend on the amount a customer uses a product. Accordingly, basing UDM’s royalties on the amount of customer usage clearly does not effectuate the intent of the parties as expressed in the Agreement. See Brigadier Indus. Corp. v. Pippin, 148 Ga. App. 145, 146 (251 SE2d 114) (1978) (“courts are not at liberty to revise contracts while professing to construe them”). Thus, the trial court erred in adopting the construction of the agreement urged by Sterling.

Decided February 17,1997

Reconsideration denied March 13,1997

Hicks, Maloof & Campbell, Henry F. Sewell, Jr., David N. Bryman, for appellee.

Although the agreement clearly requires some form of apportionment of revenues from package sales, it is ambiguous as to exactly how such revenue is to be apportioned. The evidence presented does not allow this Court to resolve this ambiguity as a matter of law. Accordingly, the proper apportionment of revenue is a question for the jury, and the trial court erred in granting summary judgment to Sterling.

Judgment reversed.

Birdsong, P. J, and Beasley, J., concur.


text:
    A96A2425.
    HUDSON v. WATKINS.
    (484 SE2d 24)
   Andrews, Chief Judge.

We granted Hudson’s application to appeal from the dismissal of his petition for writ of certiorari to consider what effect the Civil Practice Act has on certiorari proceedings reviewing the lower tribunal’s decisions.

Hudson was cited for an alleged violation of the zoning ordinance of the City of Doraville, and sentence was imposed on May 17, 1994. On June 16, 1994, his application for the writ of certiorari was filed against “The Honorable James W. Watkins, Judge of the Municipal Court of the City of Doraville.” The application requested service of the writ upon “respondent” Watkins, and service was made on June 28. On August 16, Watkins filed his answer to the writ. A hearing was held on March 20, 1996, and the court ordered the petition dismissed because Watkins was not served within five days of filing and the City of Doraville, the opposite party, was neither named as a party nor served.

OCGA § 5-4-1 et seq. contains the certiorari provisions which have been part of our law for well over 100 years. Maxwell v. Tumlin, 79 Ga. 570 (4 SE 858) (1887). OCGA § 5-4-6 (a) provides that a petition for a writ must be filed “within 30 days after the final determination of the case in which the error is alleged to have been committed. Applications made after 30 days are not timely and shall be dismissed by the court.” Subsection (b) provides that the petition and writ “shall be filed in the clerk’s office within a reasonable time after sanction by the superior court judge; and a copy shall be served on the respondent, within five days after such filing, by the sheriff or his deputy or by the petitioner or his attorney. A copy of the petition and writ shall also be served on the opposite party or his counsel or other legal representative, in person or by mail; and service shall be shown by acknowledgement or by certificate of the counsel or person perfecting the service.”

Prior to the enactment of the Civil Practice Act, the legislature in 1961 enacted OCGA § 5-4-10 which provided for the first time that “[cjertiorari proceedings shall be amendable at any stage, as to matters of form or substance, as to the petition, bond, answer, and traverse; and a valid bond may by amendment be substituted for a void bond or no bond at all.”

After the 1966 Civil Practice Act, certiorari proceedings are considered “special statutory proceedings” under OCGA § 9-11-81 to which the Civil Practice Act applies “except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law. . . .” See Bragg v. Bragg, 225 Ga. 494, 495 (170 SE2d 29) (1969).

1. Hudson’s first enumeration is that the court erred in dismissing the petition “on its own motion when no objection to the service was filed by [Watkins].”

It is appropriate for the court, without a motion from the party improperly served, to consider whether the petition and writ are properly before it. See O’Keefe v. Cotton, 102 Ga. 516 (27 SE 663) (1897). The failure to properly serve the “respondent,” the lower tribunal whose decision is being reviewed, however, is not a basis for such a dismissal when the respondent magistrate, although not served within five days as required by OCGA § 5-4-6, did thereafter make a general appearance before the superior court and address the merits of the case. Such a general appearance by the respondent will waive irregularities in the service of process. Bass v. City ofMilledgeville, 121 Ga. 151, 153 (48 SE 919) (1904); Barrett v. City of Chamblee, 117 Ga. App. 205, 206 (160 SE2d 278) (1968).

2. The tribunal whose decision is being reviewed, i.e., the respondent, is not, however, the “opposite party” referred to in OCGA § 5-4-6 and also required to be served. Fisher v. City of Atlanta, 212 Ga. App. 635 (442 SE2d 762) (1994). In the case of certiorari from a police or mayor’s court, the opposite party is the municipality. Barrett, supra.

Pursuant to Hipp v. City of East Point, 105 Ga. App. 775, 776 (125 SE2d 672) (1962), service upon the opposite party must be made within the same five-day period as service on the respondent.

Decided February 26,1997

Reconsideration denied March 13,1997

Glenville Haldi, for appellant.

Edward E. Carter, for appellee.

“[FJailure to serve the opposite party with notice of the sanction and of the time and place of hearing renders nugatory and void that which had been commenced as a good suit, but had never been completed and perfected by service. Where there is no such service, ‘there is no suit.’ . . . [Cit.]” Bass, supra at 152-153. O’Keefe, supra; Bonds v. Pearce, 74 Ga. 837 (1885); Goldberg v. City of Atlanta, 71 Ga. App. 269 (30 SE2d 661) (1944); McConnell v. Folsom Bros., 4 Ga. App. 535, 536 (61 SE 1051) (1908).

Such a failure to serve the opposite party is not a defect which can be cured by amendment under OCGA § 5-4-10. City of Atlanta v. Saunders, 159 Ga. App. 566 (284 SE2d 77) (1981); Hipp, supra. Nor, here, was any appearance made by the City of Doraville so that this requirement could be said to be waived by that appearance. Glover v. Berry Schools, 90 Ga. App. 232, 235 (83 SE2d 22) (1954).

Therefore, the dismissal of the petition for writ by the superior court for failure to serve the opposite party was not in error. City of Atlanta v. Saunders, supra.

Such a conclusion is consistent with the Civil Practice Act because a suit initiated pursuant to it is “void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit.” Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A96A2529.
    TRANSKEY, INC. v. ADKINSON.
    (484 SE2d 30)
   Blackburn, Judge.

June Adkinson sued her former employer, Transkey, in contract for back wages she claims the company owes her. Transkey admits these wages have accrued but claims the company has no obligation to pay them because Adkinson agreed the wages would be paid only if Transkey had sufficient revenues, which Transkey claims it does not. The parties filed cross-motions for summary judgment on this issue, and the trial court found Adkinson was entitled as a matter of law to collect the back wages. Transkey appeals and contends that because of the unfulfilled condition — its inability to pay — Adkinson has no contractual. right to the wages. As issues of material fact exist regarding the parties’ agreements, we partially reverse the trial court’s grant of summary judgment and remand for a jury trial.

In reviewing the grant of a motion for summary judgment, this Court construes the evidence and all reasonable inferences from the evidence strongly in favor of the nonmoving party. Greenforest Baptist Church v. Shropshire, 221 Ga. App. 465, 466 (471 SE2d 547) (1996). Summary judgment is proper only if undisputed material facts show the movant is entitled to judgment as a matter of law. OCGA § 9-11-56; see Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

At issue is Adkinson’s claim for work she performed in 1992 and 1993. The trial court’s order does not specify the amount owed. Certain documents indicate Adkinson accrued unpaid wages in 1991, but her complaint seeks compensation for “services performed in 1992, 1993 and 1994.” Furthermore, Adkinson claimed $10,800 for work performed in 1994. Transkey’s answer admitted owing her that amount, and we do not consider it to be at issue in this appeal. To the extent Transkey may be contesting its duty to pay Adkinson that amount, the trial court properly granted summary judgment to Adkinson.

Adkinson was hired in 1991, first as an independent contractor and later as a full-time employee. The record shows that during 1992 and 1993, Adkinson was an at-will employee with a set monthly salary. See Clark v. Prentice-Hall, Inc., 141 Ga. App. 419, 420 (1) (233 SE2d 496) (1977) (employee hired for indefinite term is terminable at will). Adkinson’s salary during this period was $9,000 per month; however, she received only part of her stated salary during these two years.

Transkey’s president, Harry Garrett, and a former employee, Bryant Hodgson, testified that in January 1992, Garrett called a meeting of all employees, including Adkinson, to discuss the company’s financial ills. Garrett stated he told those gathered that “[f|rom now on, Transkey would accrue unpaid employee wages as back pay to be paid when Transkey generated sufficient revenues.” He also claimed to have told the employees that “every employee was responsible for marketing Transkey’s services and only if Transkey was successful would they be paid” and to have given employees who did not want to work under those circumstances the chance to leave. Hodgson also testified that Garrett made payment of salaries contingent upon Transkey’s generating “sufficient revenues.”

Adkinson denied that Garrett used these words but acknowledged she attended a meeting at which she was told her wages would accrue, unpaid. “[T]he intent wás that [the back pay would] be paid sooner. ... I don’t know that a time was set,” she stated. Another former employee, Jan Schaffer, characterized Garrett’s statement as, “[W]e don’t have the money to pay you now, but we know we owe you that money.”

Between January and June 1992, Adkinson testified, she believed money would be available to compensate her “[a]t some salary”; however, she added, “I didn’t know what I would be paid.” In fact, she was paid a portion of her stated salary only during July, August, November, and December 1992. In October 1992, she wrote a memo asking a senior executive, “What dollar amount must Trans-key receive in order for me to be compensated [my full salary]?” That executive responded in a letter, “We are committed to the highest extent to which our cash permits to fulfill our agreement with you on salary payment. Your current salary of $9,000 per month applies through these current arrangements. Any payment not made will continue to accrue as salary owed to you.”

In January 1993, Adkinson received another letter from Trans-key which stated: “Based on work under contract, I believe we will continue to be able to pay you at the current [$7,000 per month] rate against your agreed upon salary [of $9,000 per month] in February and March. Unpaid salary will continue to accrue and will be paid by the company as cash flow permits.” During 1993, Adkinson was paid at the $7,000 per month rate. Adkinson testified she continued to work without full pay because she believed she would eventually receive her complete salary. In an affidavit she filed in connection with the motions for summary judgment, Adkinson stated, “Though TRANSKEY, INC. was, at times, unable to pay me due to cash flow problems, I was always promised by TRANSKEY, INC., that I would, eventually, be paid all back pay.”

1. Because Adkinson’s employment was terminable at will, Transkey had authority to alter the conditions of her employment. See Clark, supra. The terms which Garrett alleges he placed on Adkinson’s future employment with the company, if true, created a condition precedent to payment of Adkinson’s full salary. In Dale’s Shoe Store v. Dale, 104 Ga. App. 371 (121 SE2d 695) (1961), an employee sued to recover for services she had rendered her employer, a shoe store, over a one-and-one-half year period. The store’s officers had agreed to pay her for those services “when the store got on its feet and got to making a profit.” (Punctuation omitted.) Id. This Court found the “profitability” provision of the agreement to be a condition precedent to the store’s obligation to pay. Id. Because no evidence showed what the condition meant, the court found it to be so indefinite and uncertain as to void the entire contract and demand a directed verdict for the store. Id. at 372. See also Bivin Software v. Newman, 222 Ga. App. 112, 115-116 (2) (473 SE2d 527) (1996); E. D. Lacey Mills v. Keith, 183 Ga. App. 357, 362 (7) (359 SE2d 148) (1987).

Here, likewise, Garrett’s affidavit and the January 1993 letter from Transkey to Adkinson indicate Adkinson would be paid “when Transkey generated sufficient revenues” or “to the extent [Trans-key’s] cash flow permit[ted].” See Williston on Contracts (3rd ed.), § 804 (characterizing promises to pay “when able” as creating a condition precedent). As in Dale, this language could be construed to create a condition precedent to Transkey’s duty to pay Adkinson’s “full” salary. As issues of fact exist as to what Transkey may have promised at certain times, we do not reach the issue of whether this condition would be too vague and indefinite to create an enforceable contract.

2. In this case, although a condition precedent to Transkey’s obligation may exist, the parties’ own testimony is in conflict, and a jury question exists concerning the terms of Adkinson’s employment with Transkey. Adkinson claims she was unaware of the contingent nature of her salary, but she inquired of her employer the amount of revenue Transkey must receive for her to be paid her complete salary. She further testified that she expected to be paid “at some salary” but acknowledged she did not know how much she would be paid. At the same time, she claims she was promised she would be paid her full salary “eventually.” Transkey’s claim that it conditioned her wages on financial success is undermined by its letter to Adkinson acknowledging that unpaid salary would accrue and would be owed to her.

Under these circumstances, the existence of the claimed condition precedent is for the jury to determine. See Toncee, Inc. v. Thomas, 219 Ga. App. 539, 541 (2) (466 SE2d 27) (1995) (questions as to terms of parties’ agreement require jury resolution). A jury weighing the credibility of the testimony might find Adkinson agreed to perform work for Transkey and be paid only if the company were successful. Furthermore, because Adkinson’s employment contract was terminable at will, it was subject to modification each month. See E. D. Lacey Mills, supra at 361 (6) (in an at-will employment contract, the original terms for compensation are enforceable for the work actually performed under the contract). Evidence shows the parties made various statements concerning the terms of Adkinson’s employment during 1992 and 1993. “The construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.” (Punctuation omitted.) Toncee, supra at 541. Because a jury must weigh this conflicting evidence to determine the parameters of the agreement or agreements between Transkey and Adkinson, the trial court erred by granting summary judgment on her claims to back pay accrued for services rendered during 1992 and 1993. The trial court did not err by denying Transkey’s cross-motion for summary judgment on this issue.

Decided February 27,1997

Reconsiderations denied March 5,1997 and March 13,1997.

Perrie, Buker, Stagg & Jones, Thomas D. Perrie, Robert L. Bunner, for appellant.

Freisem, Macon, Swann & Malone, George H. Freisem III, C. Cyrus Malone III, for appellee.

We note that the question of the condition precedent does not necessarily involve a simple “yes °r n0” answer. Our opinion does not foreclose the possibility that the jury may determine Transkey and Adkinson modified the conditions of the employment agreement during 1992 or 1993, as well. Based on the evidence at hand, a reasonable jury could also find that a condition precedent to Transkey’s salary obligation existed only during a portion of Adkinson’s period of employment, if at all. Such a jury could, as well, find that Transkey waived any condition precedent for all of or part of the time Adkinson worked for the company. See Toncee, supra. These issues of fact are for the jury to resolve.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Beasley, J., concur.

       Adkinson makes no claim in promissory estoppel. But see Pepsi Cola Bottling Co. &c. v. First Nat. Bank &c., 248 Ga. 114 (281 SE2d 579) (1981) (finding estoppel where contract too indefinite to be enforced).


author: Ruffin, Judge.

text:
    A96A1904.
    ARDENEAUX v. THE STATE.
    (484 SE2d 74)
   Ruffin, Judge.

Arthur Ardeneaux appeals from the trial court’s order denying his motion to modify the conditions of his probation. For reasons which follow, we affirm.

Upon convictions for separate counts of aggravated child molestation, child molestation, and cruelty to children, the trial court sentenced Ardeneaux to confinement totaling 30 years. The trial judge further ordered that for each count, Ardeneaux serve a portion of his sentence on probation subject to various conditions, including banishment from the Northeastern Judicial Circuit and all adjacent counties. Ardeneaux’s convictions were affirmed by this Court in 1990. Ardeneaux v. State, 197 Ga. App. 640 (399 SE2d 258) (1990). Six years later, Ardeneaux moved to modify the banishment condition of his probation, claiming that the trial court abused its discretion and violated his constitutional rights by imposing this condition. The trial court denied Ardeneaux’s motion, and he appeals.

1. In his initial appeal following the convictions, Ardeneaux argued that (1) the State failed to prove the allegations in the indictment; (2) the State impermissibly placed his character in issue; (3) the trial court improperly held that the charge of cruelty to children is a lesser included offense of aggravated assault; and (4) the trial court erred in admitting evidence regarding his punishment of the victim and the victim’s half-brother and half-sister. Ardeneaux, supra. Ardeneaux alleged no error relating to his sentence or the conditions of his probation. Id.

He now claims, however, that an original condition of his probation is objectionable and unconstitutional. We find that this claim presents nothing for review. “[Ardeneaux], who failed to include an appeal from his sentence and probation at the time he appealed his conviction, cannot complain about the terms of his probation at this late date. [Ardeneaux], having once invoked the appellate process, cannot now seek to raise issues which should have been raised in that appeal.” Carver v. State, 202 Ga. App. 102, 103 (413 SE2d 265) (1991); see also Brainard v. State, 246 Ga. 586 (272 SE2d 683) (1980) (“Defendant was apparently satisfied with his sentence at the time it was entered as he did not appeal from it as was his right under [OCGA § 42-8-64], . . . This being so, he will not be heard to complain at this late date that the fine was excessive.”).

2. Ardeneaux further claims that his sentences are void because his probation on the child molestation and cruelty to children counts will commence during his incarceration for aggravated child molestation. Although briefly raising this issue in his modification motion below, Ardeneaux did not request relief from this alleged sentencing error. Instead, he only asked the trial court to modify the banishment condition. We will not grant more relief than was requested below by Ardeneaux, if any. McGee v. State, 205 Ga. App. 722, 727 (9) (423 SE2d 666) (1992).

3. Ardeneaux also argues that the trial court erred in not affording him an evidentiary hearing on his motion to modify his probation conditions. A probationer is entitled to an evidentiary hearing before “the State may revoke his probation and require him to serve his originally imposed probationary sentence in confinement.” Derrer v. Anthony, 265 Ga. 892, 894 (1) (463 SE2d 690) (1995); see also OCGA § 42-8-34.1. Ardeneaux, however, has pointed to no authority supporting his claim that an evidentiary hearing must be held on a defendant’s motion to modify probation under OCGA § 42-8-34 (g). We similarly have found no authority imposing such a requirement, and we refuse to do so in this case. Accordingly, this enumeration of error has no merit.

Decided March 13,1997.

Arthur R. Ardeneaux, pro se.

Lydia J. Sartain, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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

       To bolster his position, Ardeneaux cites OCGA § 42-8-34 (c). By its clear terms, however, that provision references a hearing to determine whether a defendant’s sentence should be suspended or probated. It does not require the trial court to hold a hearing on the defendant’s request to modify a previously imposed period of probation.