author: Ruffin, Judge.

text:
    A00A0876.
    HILL v. THE STATE.
    (535 SE2d 302)
   Ruffin, Judge.

Clinton Hill was convicted of two counts of selling cocaine. He appeals, contending that the evidence was insufficient to support the convictions and that the trial court erroneously allowed impeachment evidence. For reasons discussed below, we affirm.

1. Mamie Boyette, an undercover narcotics officer with the Georgia Bureau of Investigation, testified that she, another agent, and two confidential informants drove to a mobile home park in Columbia County on February 28, 1997. She testified that Hill approached their car and she told him that she wanted to buy $60 of crack cocaine. Hill said that he would get it and returned to the car a few moments later with a quantity of cocaine. Boyette paid him $60 for the cocaine.

Boyette testified that, at the time of the sale, she knew Hill only by his nickname of “Blue.” Three days later, she met with Patrick Morgan of the Columbia County Sheriff’s Office, who showed her a set of photographs of people who were suspected of selling crack cocaine in the area. Boyette identified Hill’s photograph as the man who sold her the cocaine.

Boyette testified that, on March 17, 1997, she purchased $140 of crack cocaine from Hill in a transaction similar to the first one. She testified that she always tries to make a second buy from a suspect so she can positively identify him at trial. Both transactions were recorded on audiotape, and the tapes were played for the jury.

Hill testified at trial and admitted being involved in the March 17 transaction. He said that he handed the drugs to Boyette as an “accommodation” for another individual who owned the drugs. He said that he was given some cocaine to smoke in return for acting as a middleman in the transaction. Hill claimed that he was not involved in the February 28 transaction.

This evidence was more than sufficient to enable the jury to find Hill guilty of both charges. Although Hill suggests that Boyette’s identification was “not proper” because the photographs she was shown by Morgan were not introduced in evidence, he failed to raise any objection either to Boyette’s in-court identification or to evidence of her selection of Hill’s photograph. Accordingly, he cannot now complain of the admission of such evidence.

2. During his direct examination, Hill admitted that he was a drug user but denied that he sold drugs. In a bench conference, the prosecutor informed the judge that she intended to cross-examine Hill on a prior incident in which he was indicted for possession of cocaine with the intent to distribute and pled guilty to the lesser offense of possession of cocaine. When asked if he wished to respond, Hill’s attorney did not raise a specific objection to this line of questioning but simply stated as follows:

Well, Your Honor, [Hill], you know, has said, so far, that he uses cocaine, and he says that he buys cocaine, of course, to use it; that he did not buy it to sell it. I believe that charge is based on a possession with an intent to distribute cocaine to other people, something that my client denied that he does. He admits to being a user.

The judge then said, “I think you can go into it.” The prosecutor cross-examined Hill regarding the conviction and introduced a certified copy of the conviction. Hill’s attorney did not raise any objection either to the prosecutor’s questions or to the introduction of the certified copy.

On appeal, Hill contends that the trial court erred in allowing the prosecutor to cross-examine him regarding the prior conviction. As we have previously stated, however,

[a] 11 evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted. A failure to make such objection will be treated as a waiver.

Decided May 31, 2000.

Ellis R. Garnett, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

“[Objections made at trial must be specific, and objections that are too vague and indefinite do not require decision by a trial court or an appellate court.” Although Hill’s attorney made vague factual statements during the bench conference about what his client did and did not admit doing, he never articulated any specific objection or even asked the court to rule the line of questioning impermissible. Moreover, he failed to raise any objection during the actual cross-examination or when the prosecutor introduced the certified copy of the conviction into evidence. Accordingly, Hill cannot now complain that the trial court erred in allowing such cross-examination.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       See Williams v. State, 225 Ga. App. 319, 322 (5) (483 SE2d 874) (1997); West v. State, 224 Ga. App. 190, 191 (2) (480 SE2d 238) (1997); Page v. State, 167 Ga. App. 297, 298 (1) (306 SE2d 381) (1983).

       (Punctuation omitted.) Hawkins v. State, 230 Ga. App. 627, 629 (2) (497 SE2d 386) (1998), quoting Andrews v. State, 118 Ga. 1 (43 SE 852) (1903).

       (Punctuation omitted.) Harkey v. State, 159 Ga. App. 112, 113 (5) (282 SE2d 648) (1981).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A0964.
    SAVAGE v. ROBERSON.
    (534 SE2d 925)
   Phipps, Judge.

Barbara Savage sued Michael Roberson for damages in Cobb County. After determining that he did not reside there, Savage filed this complaint against Roberson in the State Court of Douglas County. The complaint was dismissed on grounds that Roberson was not properly served with process before the applicable statute of limitation expired. Savage appeals, arguing that the statute of limitation was tolled under OCGA § 9-3-96 because in answering the complaint, responding to interrogatories, and testifying in his deposition, Roberson made inconsistent and misleading statements about whether he resides in Cobb County or Douglas County, thereby deterring her from perfecting service prior to expiration of the limitation period. Finding no merit in this argument, we affirm.

This case arose from a motor vehicle collision between Savage and Roberson on November 25, 1996. Savage sued Roberson in Douglas County on June 23, 1998. She served him on July 24 by posting copies of the summons and complaint to the door of his Douglas County address and by depositing additional copies in the United States mail. Roberson’s mother, with whom he lived, found the legal papers at their residence and delivered them to Roberson.

On August 21, Roberson answered the complaint and asserted insufficiency of service of process as one of his defenses. During discovery, Savage served interrogatories asking Roberson to give his “current home address” and to explain why he was claiming service of process was insufficient. In his responses filed on September 14, Roberson gave a Cobb County address as his current residence and stated that service was insufficient because he was not personally served with process. Savage scheduled Roberson’s deposition in October 1998, before expiration of the two-year statute of limitation. Roberson, however, had the deposition continued to December, after the statute had expired. Roberson’s deposition testimony shows that he resided in Clayton County when this complaint was filed but later moved to Cobb County.

Following discovery, Roberson moved to dismiss for insufficiency of service of process. Before the trial court, Savage argued that since Roberson received actual notice of the suit in a timely fashion, service should be held proper under the “substantial compliance” rule set forth in Brim v. Pruitt. Because Brim was overruled in Bible v. Bible, the trial court granted the motion to dismiss.

1. OCGA § 9-11-4 (d) (7), the statute indisputably applicable here, states that service of process may be effected upon an individual by delivering a copy of the summons and complaint to the defendant:

personally, or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.

Roberson was not served in any of these ways. Although Brim is authority for the proposition that the law was nonetheless fulfilled because Roberson received timely notice of the suit, the trial court correctly granted the motion to dismiss on the ground that Brim was overruled in Bible.

2. Because Savage’s other arguments were not advanced before the trial court, they are not properly before us on appeal.

Decided May 31, 2000.

Kenneth J. Rajotte, for appellant.

Fain, Major, Wiley & Brennan, Thomas E. Brennan, for appellee.

Moreover, Savage’s reliance on OCGA § 9-3-96 is misplaced. If the defendant is guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, OCGA § 9-3-96 provides that the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud. Roberson is not chargeable with any fraud debarring or deterring Savage from bringing an action. Nor has Roberson made inconsistent or misleading statements concerning his residence. His answer and interrogatory responses put Savage on notice that he was challenging the sufficiency of service of process because he was not personally served. A review of the law readily discloses that service was insufficient for this reason. Through Roberson’s interrogatory responses, Savage was also apprised of Roberson’s current address in Cobb County. Savage does not claim that Roberson falsely represented his Cobb County address. She was thus provided with all of the information she needed to perfect service of process in Cobb County prior to expiration of the statute of limitation. She simply failed to use it.

Judgment affirmed.

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

       OCGA § 9-3-33.

       178 Ga. App. 321 (342 SE2d 690) (1986).

       259 Ga. 418 (383 SE2d 108) (1989).

       See, e.g., Cagle v. Davis, 236 Ga. App. 657, 662 (4) (b) (513 SE2d 16) (1999).


text:
    A00A1020.
    KARIM v. THE STATE.
    (535 SE2d 296)
   Phipps, Judge.

Sultan Rasheed Karim appeals his convictions of five counts of kidnapping and one count each of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. He argues that the trial court improperly admitted evidence of an independent crime and an impermissibly suggestive photographic lineup. Because we find no error in the admission of this evidence, we affirm.

1. Evidence of the independent crime was admitted to show course of conduct, scheme, plan, and bent of mind. Karim argues that these purposes were overly broad.

Karim was convicted of the crimes in this case based on evidence showing that he and an accomplice, both African-American males, robbed a Hardee’s restaurant in Douglas County on November 5, 1994. After entering the restaurant, Karim displayed a gun, instructed the cashier to summon all of the restaurant employees to the front, and demanded money. At Karim’s direction, the cashier gathered money from the cash registers and put it in a bag. Afterward, Karim ordered the restaurant employees to proceed toward the back of the restaurant to a freezer. He then made his getaway in a car driven by his accomplice.

A similar transaction witness testified that on November 19, 1994, Karim and another African-American male entered a restaurant in Clayton County, brandished handguns, made all the employees come to the front, had one of the employees put money in a bag, instructed the employees to proceed to a cooler, and then fled the restaurant with the money.

The purposes for which the similar transaction evidence was admitted were not too broad. Both were armed robberies that were perpetrated within a two-week period in nearby counties. In both robberies, Karim’s accomplice was another African-American male, and the employees of a restaurant were summoned to the front, ordered to put the money from the restaurant in a bag, and instructed to proceed to the rear of the store toward a cooler or freezer to facilitate the getaway. The two offenses were so similar as to evidence a common plan or scheme and revealed a virtually identical modus operandi. Bent of mind and course of conduct were also shown. The trial court did not abuse its discretion in admitting this evidence.

2. The photographic lineup was displayed to store employees prior to trial.

We use a two-part test in determining whether evidence of pre-trial identification should be excluded: “The threshold inquiry is whether the identification procedure was impermissibly suggestive. Only if it was need the court consider the second question: whether there was a very substantial likelihood of irreparable misidentification.” [Cit.]

“An identification procedure is impermissibly suggestive when it leads the witness to an ‘all but inevitable identification’ of a defendant as the perpetrator, or is the equivalent of the authorities telling the witness, ‘This is our suspect.’ [Cit.]” In reviewing a trial court’s denial of a motion to suppress, we construe the evidence most favorably to upholding the court’s findings and judgment, and we, therefore, accept the court’s ruling unless clearly erroneous.

Identification procedures have been found or have been assumed to be impermissibly suggestive in cases such as Foster v. California, Ward v. Wainwright, and Arnold v. State. “In Foster, the defendant was one of only three men in a lineup; he was five or six inches taller than the other two, and he wore a jacket similar to one the robber had worn.” “In Ward, defendant alone was shown to the victim who was told that he had refused to participate in the lineup and that he was being held on a charge of breaking and entering another person’s premises in the victim’s building.” In Arnold, the defendant’s photograph was the only one of someone wearing clothing of the same coloring as that worn by the robber.

In contrast, no impermissible suggestiveness was found in cases such as Brewer v. State, Payne v. State, Thompson v. State, and Truelove v. State. The picture tone of Brewer’s photograph was demonstrably lighter than that of the other five persons in the six-photograph array, but the persons depicted in the array were of roughly the same age and appearance. Payne was one of only two men in an eight-man display who was over six feet tall, where the victim had estimated that the perpetrator was six feet one or two inches; but no man in the lineup was six feet one or two inches, and five men in addition to Payne were within four inches of the suspect’s height. In Thompson’s case, two pictures in the six-photograph array, including the one of Thompson, were smaller than the other photographs, but the six photographs were all of men of similar complexion, age, and hairstyle with the same background coloring. Truelove was the only one photographed standing in front of a height chart.

In this case, police were told that the gunman was a light-skinned African-American male. Shortly after the robbery, officers stopped a vehicle thought to be the getaway car. Although the two occupants fled into a wooded area, vehicle licensing registration revealed that Karim was the owner, and his fingerprint was lifted from inside the vehicle. An article of clothing fitting the description of that worn by one of the robbers was found in the woods.

Douglas County Sheriff’s Investigator Hicks constructed the lineup by placing six photographs of African-American males in a card containing slots for each photograph. Four photos were of inmates of the county jail. One was of a county deputy sheriff. One was of Karim. Hicks displayed the card to the restaurant cashier and two other employees five to six hours after the robbery. The cashier and one of the other employees identified Karim as the gunman. The third employee was unable to make an identification.

Several difficulties arose in reconstructing the lineup at trial. Although the original lineup was admitted in evidence as State’s Exhibit 1, the picture of the deputy sheriff was missing from it. Karim’s photograph fell from its slot in the lineup card and had to be retaped into State’s Exhibit 1. The witnesses who made a pretrial identification had initialed the back of the lineup card, but they had not noted which photograph they had selected, and at trial, they' could not recall whom they had identified or provide an in-court identification.

None of this, however, rendered the lineup inadmissible. Although the deputy’s photo was lost, another photograph of the deputy was admitted in evidence as State’s Exhibit 3, and a photostatic copy of the original lineup was admitted as State’s Exhibit 2. A comparison of the photos of the deputy in State’s Exhibits 2 and 3 show no material variations. Even though State’s Exhibit 1 does not show Karim’s photo in the same position as it appeared in the original lineup, State’s Exhibit 2 does. While the witnesses could not recall whether they had selected Karim’s photo from the lineup, in his police report Hicks documented that Karim was the subject who had been identified. Any uncertainties in lineup reconstruction went “ ‘to the weight to be afforded the pictorial lineup and not to its admissibility.’ [Cit.]”

Karim argues that the photographic lineup was impermissibly suggestive because height charts appear in all photos except his, his photograph differs from all of the other photos because his driver’s license was used, and he was the only light-complected African-American male in the lineup. None of these arguments is supported by the record.

An examination of State’s Exhibits 1 and 2 shows that although height charts appear in the photos of the inmates, height charts do not appear in either Karim’s or the deputy’s photo. Moreover, the charts do not appear to be in alignment with the actual heights of the men depicted in the photos. If the height charts suggest anything, it is that the photos are mug shots. The cashier testified that before she viewed the lineup, Hicks informed her thát police had been reviewing their files and had found some individuals with the same modus operandi as that employed in this robbery. Hicks’s comment, though suggestive, arguably would have implied to the cashier that the suspect was one of the four inmates. Although the photo of Karim appearing in State’s Exhibit 1 does reveal driver’s license information, only the photo of Karim’s face appears in State’s Exhibit 2. In the photographic array, three of the inmates are aptly characterized as dark-complected, one is medium-complected, and Karim and the deputy are light-complected. Testimony given by the cashier indicates that, when she viewed the lineup, she thought the gunman’s accomplice was a dark-skinned African-American male. The trial court was thus authorized to find that two photos in the array, including Karim’s, depict men whose complexions are similar to the gunman’s and that three depict men whose complexions are similar to the accomplice’s. The facial hair, hair length, and facial features of all six men are similar.

Decided May 31, 2000.

Michelle R. Gozansky, for appellant.

David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee.

Under these circumstances, we cannot say that imperfections in the photographic lineup created the kind of suggestiveness that would lead the viewer inexorably to conclude that Karim was the suspect. The trial court’s determination that the lineup was not impermissibly suggestive is not clearly erroneous.

Judgment affirmed.

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

        Wingfield v. State, 229 Ga. App. 75, 79 (1) (493 SE2d 235) (1997).

       See Maldonado v. State, 240 Ga. App. 497 (3) (523 SE2d 917) (1999).

        Anderson v. State, 238 Ga. App. 866, 874 (5) (519 SE2d 463) (1999).

        Thompson v. State, 240 Ga. App. 26, 31-32 (7) (521 SE2d 876) (1999).

        Anderson v. State, supra, 238 Ga. App. at 874 (5).

       394 U. S. 440 (89 SC 1127, 22 LE2d 402) (1969).

       450 F2d 409, 412 (5th Cir. 1971).

       198 Ga. App. 449 (1) (402 SE2d 69) (1991); see also Taylor v. State, 203 Ga. App. 210, 211 (2) (416 SE2d 554) (1992).

        Payne v. State, 233 Ga. 294, 300 (2) (210 SE2d 775) (1974).

       Id.

       219 Ga. App. 16, 20 (6) (463 SE2d 906) (1995).

       Supra, 233 Ga. at 300 (2).

       Supra, 240 Ga. App. at 31-32 (7).

       198 Ga. App. 14 (1) (400 SE2d 396) (1990).

        Daniel v. State, 185 Ga. App. 228, 230 (2) (363 SE2d 634) (1987).


text:
    A00A1036.
    GATEWAY FAMILY WORSHIP CENTERS, INC. v. H.O.P.E. FOUNDATION MINISTRIES, INC. et al.
    (535 SE2d 286)
   Phipps, Judge.

Two questions are presented in this appeal. Is a real estate sales contract unenforceable due to an inadequate property description? Should defense counsel be disqualified on the ground that he is a material witness? The trial court said yes to both questions. Because we answer yes to the first question only, we affirm in part and reverse in part.

Delbert Pulliam, pastor of Gateway Family Worship Centers, Inc., and his wife entered into a contract to sell improved real estate to Laverne Dixon, pastor of H.O.P.E. Foundation Ministries, Inc. After Dixon refused to close the purchase due to alleged misrepresentations by Pulliam concerning the amount of property to be conveyed, H.O.P.E. sued Gateway. H.O.P.E. demanded that Gateway and Pulliam release a claim to a nonrefundable $4,000 earnest money deposit paid by Dixon. Gateway filed a counterclaim against H.O.P.E., and a third-party claim against Dixon, seeking to recover the earnest money and to obtain reimbursement for the cost of a survey of the property.

H. O.P.E. and Dixon moved for summary judgment, arguing that Gateway has no entitlement to either the earnest money or survey cost because the sales contract is unenforceable as a result of an inadequate description of the property to be sold. Finding merit in this argument, the trial court ruled that H.O.P.E. is entitled to return of the earnest money. But the court determined that the question of liability for the survey cost is not amenable to summary judgment. The court granted a motion by H.O.P.E. and Dixon to disqualify Gateway’s attorney on the ground that he is a material witness. Gateway appeals the grant of H.O.P.E. and Dixon’s motion to disqualify counsel and the award to them of partial summary judgment.

I. At the outset, Gateway argues that H.O.P.E. lacks standing to bring this suit because Dixon signed the sales contract and amendments thereto in her individual capacity. The court was, however, authorized to find that Dixon entered into the contract for the benefit of H.O.P.E. A third-party beneficiary has standing to sue on a contract made for its benefit. Moreover, Gateway added Dixon as a third-party defendant.

2. Gateway contends that the trial court erred in directing a return of the earnest money, because the property to be sold was adequately described.

To be valid, a description in a deed, contract for the sale of land, or a claim of lien on real estate must identify the land with reasonable definiteness or contain a key by the use of which the description may be applied by extrinsic evidence. The key must open the door to extrinsic evidence which leads unerringly to the land in question.

The trial court found no valid property description in the sales contract or key to the property’s identification for the following reasons. The contract identifies the property as 4190 Cedar Ridge Trail located in Land Lot 192 of District 15 of DeKalb County in the City of Stone Mountain. Although the contract does not contain a metes and bounds description of the property, make any reference to the acreage of the tract, or incorporate a plat of survey, preprinted language in the contract states that the full legal description “is the same as is recorded by Clerk of the Superior Court of the county in which the property is located and is made a part of this agreement by reference.” When the sales contract was executed, the Pulliams’ warranty deed to property known as 4190 Cedar Ridge Trail was recorded in DeKalb County and incorporates an exhibit containing a metes and bounds description. But the warranty deed states the tract is located in Land Lots 191 and 192, whereas the sales contract states that the tract is located in Land Lot 192. The trial court found the property description inadequate because of this discrepancy concerning the location of the tract.

We find the property description inadequate for other reasons. It is undisputed that an adequate description of the property cannot be found within the four corners of the contract, because it provides nothing more than an address. The contract arguably makes reference to a deed, which does provide a metes and bounds description. But according to Gateway, the metes and bounds of the property to be conveyed to Dixon, as well as the acreage, were to be determined by a survey to be conducted at Dixon’s expense after the contract was executed. Although a contract which contains a valid description of the property may rely on a subsequent survey to determine the exact acreage, a post-contract survey cannot be used to provide the description itself. This is so because “the key relied upon must be sufficient to provide identification by reference to extrinsic evidence which exists at the time that the contract is entered into by the parties.” Moreover, Pulliam testified that prior to execution of the sales contract, he advised Dixon that 4190 Cedar Ridge Trail consisted of four tax parcels identified in the listing agreement with the broker. The survey, however, shows that one of the tax parcels does not exist and that 4190 Cedar Ridge Trail is comprised of 18.22 acres, contrary to data in the multiple listing indicating that it consists of approximately 25 acres. That is why Dixon refused to close the purchase. She was authorized to do so because the description of the property in the sales contract does not constitute a key which has opened the door to extrinsic evidence leading unerringly to the land intended by the parties to be the subject of the conveyance. Consequently, the trial court did not err in ruling that Dixon is entitled to a return of the earnest money.

3. The trial court denied summary judgment on the question of liability for the survey cost because the survey was to be paid for by whoever ordered it (irrespective of the enforceability of the sales contract), and there is a dispute as to who ordered the survey. Gateway’s attorney, Arroyo, was disqualified on the ground that his testimony is material to resolution of this dispute.

Decided May 31, 2000.

William H. Arroyo, for appellant.

Matthew D. Crosby, for appellees.

The parties agreed that the expense of the survey was to be borne by Dixon if she ordered the survey. The motion to disqualify Arroyo was filed because (1) it is Gateway’s position that the survey was ordered by Dixon and prepared at Arroyo’s direction, and (2) Dixon denies requesting a survey of the property from Arroyo or any representative of Gateway. But Gateway does not claim that Dixon asked Arroyo to have the survey prepared. Pulliam testified that he and Dixon agreed that the survey would be prepared and that she would pay for it. Arroyo testified that Pulliam told him to have the survey prepared because Dixon had requested one. The dispute as to whether Dixon requested the survey will thus be resolved on the basis of Pulliam’s and Dixon’s testimony. Arroyo’s testimony on the issue is hearsay. The court erred in granting the motion to disqualify.

Judgment affirmed in part and reversed in part.

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

       See OCGA § 9-2-20 (b); Norris v. Cady, 231 Ga. 19, 21 (200 SE2d 102) (1973).

       See, e.g., Scheinfeld v. Murray, 267 Ga. 622, 623 (1) (481 SE2d 194) (1997); Mull v. Mickey’s Lumber &c. Co., 218 Ga. App. 343, 345 (2) (461 SE2d 270) (1995).

        Kenerly v. Yancey, 144 Ga. App. 295, 297 (2) (241 SE2d 28) (1977).

       See Royal v. Bland Properties, 175 Ga. App. 250, 251 (1) (333 SE2d 145) (1985).

       (Emphasis supplied.) Id.


author: McMURRAY, Senior Appellate Judge.

text:
    A00A1070.
    SOLOMON v. THE STATE.
    (534 SE2d 915)
   McMURRAY, Senior Appellate Judge.

Defendant was convicted by a Gwinnett County jury of three counts of armed robbery and three counts of possession of a firearm during the commission of a felony. The superior court sentenced defendant to twenty years on each count of armed robbery, to serve fifteen years, and to five years probation on the counts of possession of a firearm during the commission of a felony consecutive to his sentence to confinement for armed robbery. The superior court denied defendant’s motion for new trial, and he now appeals.

1. Defendant first enumerates that the superior court erred in denying his motion for mistrial for impermissibly putting his character in issue upon allowing Gwinnett County Police Department Investigator J. A. Rankin to testify: (a) that defendant admitted that he was driving another person’s car when he was stopped for a traffic violation about a month after the instant offenses had occurred and that defendant produced proof of insurance in another person’s name, and (b) that Investigator Rankin used a “book-in” photograph of the defendant obtained from the Clayton County Police Department in preparing a pretrial photographic lineup. This claim of error is without merit. “It is well settled that all circumstances connected with [an] accused’s arrest are admissible, even though they incidentally put his character in issue.” Further, testimony that a photograph is a “mug shot,” from the files of a police department, as here, does not put a defendant’s character in issue. Neither does such a photograph impermissibly place a defendant’s character in issue if it is shown to potential witnesses for purposes of identification. Accordingly, this claim of error is without merit.

2. Defendant last enumerates that the superior court erréd in denying his motion for directed verdict of acquittal for the insufficiency of the evidence. This claim of error is likewise without merit.

Where, as here, the sufficiency of the evidence is challenged by a motion for directed verdict of acquittal, the proper standard of review is whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offenses. See Jackson v. Virginia. On appeal, we view the evidence in the light most favorable to support the verdict, and an appellant no longer enjoys a presumption of innocence; moreover, we determine the sufficiency of the evidence and do not weigh the evidence or determine the credibility of witnesses.

Viewed in the light most favorable to the verdict, the evidence shows that defendant and two male accomplices were the last would-be customers in a Norcross Autozone store as it was closing around 9:00 p.m. on January 16, 1998. Christian Gottlieb, a store employee, was in the office reconciling receipts for the day, while Freddie Vickery and Rita Tortolero, two other employees, were closing up the showroom floor. Noting the presence of defendant and the other two men, Vickery and Tortolero offered to assist them before closing. When Vickery knelt to show the defendant and one of the men a window tint, defendant pressed a pistol in his back, had him call Gottlieb, and walked him to the rear of the store. Defendant’s remaining accomplice, who had asked Tortolero to assist him in finding fuses, likewise directed her to the rear of the store. There defendant and the accomplice with him ordered Vickery and Tortolero to lie face down on the floor of the men’s room. While they were on the floor, a wallet, containing approximately $200, and a pager were taken from Vickery. Another pager was taken from Tortolero. Defendant then directed his attentions to Gottlieb as he walked to the back- of the store, moments later forcing Gottlieb at gunpoint to open the store’s safe and cash drawers and taking the money therein. When it was over, defendant “threw [Gottlieb] into the bathroom [ ]” where Vickery and Tortolero had been left, and the perpetrators fled.

Although neither Tortolero nor Gottlieb was able to identify the defendant, both described their assailant as a tall man who wore a black leather jacket around his waist. Vickery described the defendant’s coat in a similar manner, saw the defendant in the coat in a neighborhood restaurant the day after the robberies, and positively identified the defendant as the perpetrator in two pretrial photographic lineups and at trial. Further, the evidence reflects that a black leather coat matching the descriptions given by the witnesses was found in defendant’s vehicle at the prearrest traffic stop alluded to in Division 1 upon defendant’s consent to search.

While direct evidence supporting defendant’s convictions may be lacking as to whether the defendant took the items removed from the persons of Vickery and Tortolero, there is sufficient circumstantial evidence to authorize a jury to conclude that the defendant did so. Direct evidence otherwise supports all elements of the charges of which defendant was convicted. Such direct and circumstantial evidence was more than sufficient to allow a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of the crimes charged. Therefore, the superior court did not err in denying defendant’s motion for directed verdict of acquittal.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

Decided May 31, 2000.

Ronnie K. Batchelor, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

       OCGA § 16-8-41.

       OCGA § 16-11-106.

        Reynolds v. State, 234 Ga. App. 884, 886-887 (2) (508 SE2d 674), citing McClung v. State, 206 Ga. 421, 423 (1) (57 SE2d 559); Louis v. State, 230 Ga. App. 897 (497 SE2d 824); Hyatt v. State, 210 Ga. App. 425 (436 SE2d 540); Blackshear v. State, 199 Ga. App. 839 (406 SE2d 269); Jimerson v. State, 163 Ga. App. 54 (1) (293 SE2d 513).

        Seals v. State, 176 Ga. App. 67, 68 (2) (335 SE2d 306).

        Woodard v. State, 155 Ga. App. 533 (1) (271 SE2d 671).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560).

       (Citations omitted.) Jenkins v. State, 240 Ga. App. 102, 103 (1) (522 SE2d 678).

        Jackson v. Virginia, 443 U. S. 307, supra; see also Smith v. State, 215 Ga. App. 673, 675 (2) (452 SE2d 526).

        Jenkins v. State, 240 Ga. App. 102, 103 (1), supra.


text:
    A00A1111.
    JOWERS v. THE STATE.
    (535 SE2d 294)
   Phipps, Judge.

Timothy Jowers appeals his conviction of robbery by intimidation. He challenges the sufficiency of the evidence, the admission of proof of an independent crime, and the denial of his motion to suppress evidence of a police officer’s identification of him. We find no merit in these claims of error and affirm.

Larry Sarver, manager of a Waffle House in DeKalb County, testified that in the early morning of June 19, 1998, an African-American male entered the restaurant and began talking to Crystal Buchans, a waitress. After Sarver approached him, the man reached into his pants pocket in such a way as to make it appear that he had a gun, walked behind the counter despite Sarver’s protests, reached into the cash register, took money, and fled.

Sarver called 911, and, at approximately 4:30 a.m., DeKalb County Police Officers Thomas Brackin and M. L. Chadwick responded to a radio dispatch. Officer Brackin arrived at the restaurant first. While he was inside, Sarver pointed to a car stopped at a traffic light outside the restaurant and exclaimed “that’s him.” Officer Chadwick arrived at the restaurant at the same time and gave chase in his patrol car. He pursued the vehicle to a locked gate leading into an apartment complex. The driver stopped his vehicle 30 to 35 feet away from Officer Chadwick’s and stepped out of it. Officer Chadwick then exited his patrol car with a shotgun in hand. As the driver of the other vehicle was walking toward the patrol car, Officer Chadwick instructed him to lie down on the ground. Instead, he assumed a sprinter’s stance, turned and ran, scaled the gate, and fled. A check stub bearing Jowers’s name was found inside the abandoned car, which was registered to a woman who shared the same address as Jowers.

Evidence was presented showing that approximately three months before the robbery in this case, Jowers entered a Mrs. Winner’s restaurant also in DeKalb County, placed his hands in his pants as though he had a gun, threatened to shoot the manager if she did not open the cash register, and then left after the manager said she did not have a key.

Apparently as a result of Jowers’s arrest for the prior crime, police obtained his mug shot. A DeKalb County detective incorporated that photo of Jowers into a six-person photographic lineup. Unlike any other photo in the array, Jowers’s photograph had a height chart in the background. About two weeks after the Waffle House robbery, a detective displayed the lineup to Officer Brackin, Officer Chadwick, and Buchans. Although Officer Brackin had obtained only a fleeting view of the suspect, he made a tentative or partial identification of Jowers and one other subject. Both Officer Chadwick and Buchans positively identified Jowers. The trial court suppressed Buchans’s but not Officer Chadwick’s pretrial identification. At trial, Officer Chadwick’s pretrial identification of Jowers was admitted in evidence. After testifying that through high-illumination lights on his patrol car he got a “good look” at the subject’s face from a distance of about 30 feet, Officer Chadwick also made a positive in-court identification of Jowers. Sarver did not view the pretrial photographic lineup, but he tentatively identified Jowers as the robber at trial.

1. Jowers challenges the sufficiency of the evidence to support the verdict.

Jowers raises issues relating to the weight of the evidence and credibility of the State’s witnesses, which are matters for the jury to determine. On appeal of a criminal conviction, we view the evidence in the light most favorable to the verdict to determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Under these standards, the evidence was sufficient to support Jowers’s conviction of robbery by intimidation.

2. Jowers contends that the trial court erred in admitting evidence of the similar crime because the prejudicial effect outweighed the probative value.

In each robbery, Jowers entered a fast food restaurant where no customers and only two or three employees were present. In each, he pretended to have a gun and demanded money from the cash register. The two incidents were only months apart, and both occurred in DeKalb County. The trial court did not abuse its discretion in finding that the probative value of the similar crimes evidence outweighed the danger of unfair prejudice.

3. Finally, Jowers contends that the photographic lineup was impermissibly suggestive to Officer Chadwick as well as to Buchans.

Decided May 31, 2000.

Richard W. Marks, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

Determination of whether a challenged pretrial identification must be suppressed requires a two-step analysis: first, it must be determined whether the identification procedure was impermissibly suggestive. If the inquiry is answered in the affirmative, then it must be determined whether, under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification, with ensuing harm.

The trial court ruled that the photographic lineup would have been impermissibly suggestive to Buchans but not to Officer Chadwick, primarily because Buchans had estimated that the robber was about the same height as that shown in the photo of Jowers used in the lineup. Our review of the photographic lineup shows that the top of Jowers’s head barely touches the six-foot mark of the height chart appearing in the background of his photo. According to Buchans, the robber was six feet tall. Officer Chadwick described the robber as five feet nine inches to five feet ten inches tall. Under these circumstances, we agree that the photographic lineup was impermissibly suggestive as to the waitress but not the officer. Moreover, the court would have been authorized to find that even if the display of Jowers’s photograph to the officer was impermissibly suggestive, there was no substantial likelihood of misidentification.

Judgment affirmed.

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

        Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996).

       Id.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       See generally Smith v. State, 232 Ga. App. 290, 292 (1) (501 SE2d 523) (1998).

       (Citations and punctuation omitted.) Ellis v. State, 215 Ga. App. 40, 42 (1) (449 SE2d 882) (1994).

       As to the suggestiveness of the photographic display to the waitress, see Arnold v. State, 198 Ga. App. 449 (1) (402 SE2d 69) (1991) (although defendant’s photograph was only one in photographic lineup showing someone wearing clothing fitting description of that worn by robber, there was no substantial likelihood of misidentification due to victim’s observations of robber during commission of the crime); as to the suggestiveness of the photographic display to the officer, see Payne v. State, 233 Ga. 294, 300 (II) (210 SE2d 775) (1974).

       See generally Ellis v. State, supra.


author: McMurray, Senior Appellate Judge.

text:
    A00A1176.
    MOSS v. THE STATE.
    (535 SE2d 292)
   McMurray, Senior Appellate Judge.

Defendant was convicted of two counts of aggravated child molestation and one count of child molestation involving his wife’s natural daughter at a Henry County bench trial in the superior court where the relevant facts were stipulated. Thereafter, the superior court sentenced defendant to ten years to serve on each count consecutively. Defendant now appeals, contending in a single enumeration of error that the superior court erred in denying his motion to suppress in that the confession he gave the Henry County Department of Family & Children Services (“DFACS”) was involuntary as given upon hope of benefit under State v. Ritter. Held:

Viewed in a light most favorable to the findings of the superior court, the evidence shows that in April 1998 defendant’s mother contacted her health insurer seeking a referral to a psychologist for her son upon learning of the allegations against him in the case sub judice. She was advised that a specialist would be needed and that entitlement to coverage required DFACS notification. On this, defendant’s mother contacted DFACS, spoke to Brandy Beavers, a caseworker, and asked if charges would be brought if defendant came in and made a statement. Defendant’s mother testified at the suppression hearing that caseworker Beavers responded, “No, [DFACS] will not press charges. A member of the family would have to press charges.” Defendant’s mother, in turn, relayed the foregoing to the defendant. In other testimony at the suppression hearing, DFACS caseworker Juanita Creech testified that after receiving a report alleging child molestation against the defendant, she contacted defendant’s mother and his wife and asked that the defendant come in to make a statement, pointing out that the police would be involved. Defendant’s mother testified that caseworker Creech’s words were: “We cooperate with law enforcement and there will be a detective present when we interview [the defendant].”

Defendant testified that he drove himself to the DFACS interview and that upon arriving he was introduced to caseworker Creech and two Henry County police detectives, Detectives Jason Bolton and Robbie Johnston. The defendant further testified that he knew that Detectives Bolton and Johnston were law enforcement officers; that neither officer threatened or coerced him to give a statement; that neither officer promised him anything for his statement; that he first gave his statement orally in the room where he was interviewed and then reduced his statement to writing privately in another room; and that after doing so, he exited the DFACS building and went to work. Detective Bolton’s testimony established that the interview took about 15 minutes; that, apart from being emotionally upset, defendant was not under the influence, giving his statement in a knowing, coherent manner; and that defendant would have been free to terminate the interview and leave at any time.

In ruling on the motion to suppress, the superior court found that there had been no custodial interrogation requiring that defendant be given Miranda warnings and that, in the totality of the circumstances, defendant had voluntarily given his statement, no hope of benefit having been offered him for it by DFACS personnel or the police. We agree.

When reviewing the decision of the trial court on a motion to suppress, the evidence is construed most favorably to uphold the court’s findings and judgment. If there is any evidence to support the trial court’s findings on disputed facts and credibility, they will not be disturbed unless clearly erroneous.

Defendant challenges the findings of the superior court only insofar as the court found his confession voluntary as not the product of hope of benefit extended by DFACS or the police. However, the record reflects that neither the police nor DFACS offered the defendant anything in exchange for his testimony. In this regard, defendant gave the statement he complains of immediately after Detective Bolton asked him, “Would you like to tell us how this all started or began[?]” Further, although the evidence shows that caseworkers Beavers and Creech told defendant’s mother that DFACS would not press charges in the event that defendant gave DFACS a statement, this was a proper statement in that as a child welfare agency, DFACS is required by law not to press charges upon a report of child abuse but to give immediate notice thereof to the appropriate police authority or district attorney. Moreover, that defendant and his mother understood that the police would be present at the time defendant was interviewed may not reasonably be construed as an offer of benefit for defendant’s statement. If anything, the presence of the police served only to underscore the potential for disposition in the criminal justice system upon the admission of a serious felony, namely all that has occurred in the case sub judice.

Decided May 31, 2000

Lee Sexton, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Blair D. Mahaffey, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       268 Ga. 108, 110 (1) (485 SE2d 492).
      [W]hile deceit may not on its own render a statement inadmissible (where not calculated to procure an untrue statement), we hold that in looking to the totality of the circumstances, see Reinhardt v. State, 263 Ga. 113, 115 (3) (b) (428 SE2d 333) (1993), the employment of deceit may result in the inadmissibility of a statement in those situations where the particular deception used, by constituting a “slightest hope of benefit or remotest fear of injury” under OCGA § 24-3-50, has induced a party to confess, thereby rendering the confession involuntary.
      Id.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694).

       (Citation omitted.) Downey v. State, 241 Ga. App. 821, 823 (527 SE2d 909).

       There is no claim to this effect. Even were there such a claim the presence of police at a DFACS interview does not compel the conclusion that defendant was in custody. Banther v. State, 182 Ga. App. 333, 334 (1) (355 SE2d 709).

       OCGA § 19-7-5 (e) provides:
      If a report of child abuse is made to the child welfare agency or independently discovered by the agency, and the agency has reasonable cause to believe such report is true or the report contains any. allegation or evidence of child abuse, then the agency shall immediately notify the appropriate police authority or district attorney.


text:
    A00A1270.
    HODOR v. GTE MOBILNET, INC. et al.
    (535 SE2d 300)
   McMurray, Senior Appellate Judge.

While employed with defendant GTE Mobilnet, Inc. (“GTE”), Brenda E. Hodor claimed that her supervisor, defendant Susan Bear, expressed insensitive remarks and otherwise engaged in conduct which caused plaintiff extreme emotional distress. Summary judgment was granted to the defendants, and plaintiff appeals. Held:

Summary judgment under OCGA § 9-11-56 is appropriate in cases in which there are no genuine issues of material fact and the undisputed facts, viewed in the light most favorable to the party opposing the motion, warrant judgment as a matter of law.

Viewing the evidence in this light, we cannot conclude that the trial court erred in granting summary judgment to the defendants. Plaintiff deposed that she originally was hired by Contel Corporation (“Contel”) in 1985. GTE became plaintiff’s employer in 1991 after the companies merged, and plaintiff began working under Bear’s supervision in July 1991. In 1992, plaintiff contracted trigeminal neuralgia, an excruciatingly painful facial nerve condition. A psychiatrist averred that plaintiff suffers from major depression caused by work-related stress, in aggravation of her disorder. Plaintiff also attributes her depression to mistreatment at work rather than her nerve disorder. However, plaintiff deposed that she had a history of stress and depression necessitating a leave of absence from Contel, predating her employment with GTE.

Due to her disorder, plaintiff was absent from work approximately 49 days during 1993 and from August 16 through December 31, 1994. GTE authorized plaintiff’s medical leave, paying her full salary and benefits. In August 1994, Bear submitted a performance evaluation stating plaintiff had provided a “great benefit” to GTE by traveling to Argentina to assist GTE in a crisis. Plaintiff received three pay increases and two promotions under Bear’s supervision.

It is against this backdrop that we examine the comments plaintiff deposed Bear made to plaintiff in the presence of co-workers. Plaintiff averred that Bear joked on numerous occasions that plaintiff “had to eat baby food.” Plaintiff’s co-workers found this “hilarious,” while plaintiff found it demeaning. Plaintiff’s former assistant also averred that Bear mocked and ridiculed plaintiff regularly in the presence of other employees.

Plaintiff further deposed that when she declined Bear’s invitation to a luncheon with the purchasing department in May 1994, Bear said plaintiff’s refusal was a “black strike against her.” Next, when the purchasing team was not given an opportunity to present a proposal during the first quarter of 1994, plaintiff averred that Bear commented that she “felt like a slave in the deep South in 1856 when they were sold.” Plaintiff inferred racial animus from these two remarks.

Finally, plaintiff deposed that Bear and Penny Duke, an employee in GTE’s human resources department, denied plaintiff’s request to work from home for two weeks in July 1995 to adjust to a medication change. Instead, plaintiff was permitted to work a reduced schedule, from 7:00 a.m. until 12:30 p.m.

A plaintiff who claims intentional infliction of emotional distress must prove the following four elements: “(1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe.”

In the case sub judice, plaintiffs claim fails the second hurdle because the conduct at issue falls into the type of derogatory comments made in the workplace which generally are not considered extreme and outrageous.

Comments made within the context of one’s employment may be horrifying or traumatizing, but are generally considered a common vicissitude of ordinary life. Liability for intentional infliction of emotional distress has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to gq beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. . . . Such does not include mere insults, indignities, threats, annoyances, petty oppressions, or other vicissitudes of daily living. Plaintiffs are expected to be hardened to . . . occasional acts that are definitely inconsiderate and unkind.

Contrary to plaintiff’s argument, the conduct of which she complains is not akin to the purported conduct which led this Court to rule in Coleman v. Housing Auth. of Americus that a genuine issue of material fact remained for jury determination concerning plaintiff’s claim of intentional infliction of emotional distress against her supervisor. In Coleman, plaintiff alleged her male supervisor engaged in a pattern of explicit sexual harassment, through, among other things, the use of abusive and obscene language, the proffer of a pornographic videotape, inquiry into her marital sexual relations, and racist and sexist jokes.

Unlike the supervisor’s conduct in Coleman, Bear’s statements in the case sub judice, however rude and insensitive they may be, “do not, as a matter of law, rise to the requisite level of egregious or outrageous behavior which justifiably results in that severe fright, humiliation, embarrassment, or outrage which no reasonable person is expected to endure.”

Decided May 31, 2000.

Gordon L. Joyner, for appellant.

Alston & Bird, Lisa H. Cassilly, Anne E. Lubell, for appellees.

Accordingly, defendants successfully pierced an essential element of plaintiff’s claim, and the trial court did not err in granting summary judgment.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Defendants claim GTE is an improperly named party and that plaintiff’s true employer is GTE Mobile Communications Service Corporation. However, our holding moots this issue.

        Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71 (532 SE2d 463).

       For the purpose of reviewing the trial court’s grant of summary judgment, we will accept plaintiff’s factual allegations as true. See Frank v. Fleet Finance &c., 238 Ga. App. 316, 317 (518 SE2d 717).

       On the basis of Bear’s remarks, plaintiff filed an Equal Employment Opportunity Commission complaint and a federal lawsuit alleging discrimination. In their appellate brief, defendants assert that they were granted summary judgment in that action.

        Frank v. Fleet Finance &c., supra at 318.

        Jarrard v. United Parcel Svc., 242 Ga. App. 58, 59 (529 SE2d 144). See also Peoples v. Guthrie, 199 Ga. App. 119, 121 (2) (404 SE2d 442) (where supervisor falsely accused employee, in presence of co-workers, of cheating on a test, conduct was held not extreme or outrageous).

       (Citations and punctuation omitted.) Jarrard v. United Parcel Svc., supra at 59.

       191 Ga. App. 166, 169 (1) (381 SE2d 303).

       Id.

        Kornegay v. Mundy, 190 Ga. App. 433, 434 (1) (379 SE2d 14).


text:
    A00A1304.
    JONES v. BOWEN et al.
    (535 SE2d 501)
   McMurray, Senior Appellate Judge.

On September 30, 1999, appellant-plaintiff John Robert Jones filed the underlying three-count complaint, as amended, against adjoining property owners, appellees-defendants John R. Bowen, Sue Bowen Hendrix, and R. E. Hendrix, in the Superior Court of Candler County. In Count 1, plaintiff alleged that 16.3 acres were transferred to him by warranty deed, though not a part of the acreage particularly described therein, and asked that a survey be ordered to establish the true boundary line between the parties. Counts 2 and 3 sought temporary and permanent injunctions to restrain defendants from further clearing the disputed property as well as compensatory damages for trespass relative to clearing already accomplished thereon and attorney fees and punitive damages, respectively. On November 15,1999, the superior court granted defendants’ motion to dismiss for failure to state a claim upon which relief may be granted and, without objection, granted plaintiff’s motion for substitution of a party, substituting plaintiff Jones for his predecessor in title, All South, Inc. In a single enumeration of error, plaintiff appeals the superior court’s order granting defendants’ motion to dismiss for failure to state a claim. Held:

The evidence shows that in January 1999 plaintiff purchased two parcels of land from Dorothy R. Zeitower, Lillian R. Stephenson, and Christopher C. Ryals, having in late 1998 employed George William Donaldson, a registered surveyor, to survey the property conveyed. The plat of the property prepared by Donaldson, dated December 31, 1998 (“the 1998 plat”), was recorded in the Candler County Courthouse, Plat Book 8, page 85, and later specifically incorporated by reference in the warranty deed which conveyed the property to the plaintiff in January 1999.

Plaintiff avers that shortly after purchasing the property, he discovered a 16.3-acre discrepancy between a 1972 plat of the property and a plat of the property done in 1981 — the former showing the disputed acreage as on his side of the disputed boundary line and the latter showing it on defendants’ side. The 1998 plat followed the markers of the 1981 plat. It is uncontroverted that though the disputed acreage was once a part, of plaintiff’s parcel, it is now a part of defendants’ parcel. The parties do not challenge the superior court’s finding that “[h]ow or why the boundary line moved is not known.”

The warranty deed under which plaintiff claims title, a copy of which plaintiff attached to his complaint, pertinently describes the property as follows:

All those two certain parcels of land situate lying in a body together in the 1685th G. M. District of Candler County, Georgia and in the aggregate containing 945.064 acres, more or less, all as shown on a plat of survey prepared for John Robert Jones by George William Donaldson, Registered Surveyor, dated December 31, 1998, and of record in Plat Book 8, Page 85, Candler County, Georgia records, to which plat and the record thereof reference is hereby made and incorporated herein and being separately described as follows:
Parcel One: All that certain . . . parcel of land situate . . . , containing 497.731 acres, more or less, as shown and depicted as Parcel 1A on a plat prepared for John Robert Jones by George William Donaldson, Registered Surveyor and hereinabove made a part of this description by reference. . . .
Parcel Two: All that certain . . . parcel of land situate . . . containing 447.333 acres, more or less, as shown and depicted as Parcel IB on a plat prepared for John Robert Jones by George William Donaldson, Registered Surveyor and hereinabove made a part of this description by reference. . . .
The Grantors intend to convey all of their interest in the tract of land conveyed to Grantors by Executor’s and Trustee’s Deed, dated February 27, 1997, and recorded in Deed Book 149, Pages 4-5, Candler County, Georgia records, which has been resurveyed by the aforesaid plat. Said tract of land is described in said deed as containing 996 acres of land, more or less.
Grantors do not warrant the acreage, area, or content of the property conveyed hereby, the location of the boundary lines, or the accuracy of the aforesaid plat.
The property is conveyed “AS IS” “WITH ALL FAULTS,” and subject to existing or recorded easements and rights of way, and matters of record. Grantee acknowledges sufficient opportunity to examine, inspect and survey the property.

Plaintiff argues that the foregoing language must be construed in accordance with the intent of plaintiff’s predecessors in title — that is, as conveying all of the interest they acquired in the property by means of the executor’s and trustee’s deed. However, in addition to describing the property conveyed by reference and incorporation of the 1998 plat as resurveyed, the deed on its face states that the 1998 plat reflected all the interest of plaintiff’s predecessors in title. That the deed also purported to quantify such interest as one equaling 996 acres, more or less, may not be deemed reflective of an intent to convey 996 acres. Absent an express covenant indicating that a given number of acres are conveyed, a clause as to quantity will be rejected in favor of the actual area if that is ascertainable by metes and bounds description. There is here such a description because a deed incorporating a recorded plat by reference as the legal description has the same effect as if written out in the deed. Moreover, where a deed employs the phrase “more or less” after specifying a particular number of acres, the deed conveys a tract of land binding upon the grantee notwithstanding the specific acreage conveyed thereby unless there is actual fraud on the part of the grantor.

Further, plaintiff’s reliance upon Wooten v. Solomon for the proposition that “a previous particular description” of property is determinative of the property conveyed under a deed in the event of conflict with the plat with which it is associated is misplaced. To the contrary, the rule in Wooten is limited to the deed in which the conflict arises, that is, the particular description of land therein stated and the associated plat purporting to represent the description. There is here no conflict in that the description of the property conveyed incorporated by reference and the 1998 plat are one and the same.

Decided May 31, 2000.

Plaintiffs remaining argument, made by his amendment to the complaint, is likewise without merit. Assuming without deciding, that plaintiff correctly asserts that the disputed acreage cannot be owned by the defendants because the 1981 plat of the property is not recorded and plaintiffs predecessor in title owned only a one-quarter interest in it, “[t]he expressed description in a deed to realty will not be extended beyond its terms because of a belief by the holder under it that it covered land not embraced in that description. . . ,” Thus, plaintiff is entitled to claim only that land which he commissioned surveyed and later purchased upon a description incorporated by reference in the deed upon opportunity to examine, inspect, and survey.

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

Plaintiff’s complaint, as amended, having failed to establish a basis for relief notwithstanding the provable evidence, the superior court did not err in granting defendants’ motion to dismiss in the case sub judice.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

Thomas A. Nash, Jr., for appellant.

Brown & Livingston, Charles H. Brown, for appellees.

       Plaintiff originally filed the instant appeal in the Supreme Court of Georgia. On February 11, 2000, the Supreme Court transferred the appeal to this Court as involving a boundary line dispute between the parties, and citing Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208), stated, “To the extent this appeal involves issues regarding land, those issues concern a boundary line dispute between the parties, and do not fall within this Court’s jurisdiction.”

        Martin v. Patton, 225 Ga. App. 157, 164 (2) (483 SE2d 614) (physical precedent only), citing Collinsville Granite Co. v. Phillips, 123 Ga. 830, 842 (11) (51 SE 666).

        Reidling v. Holcomb, 225 Ga. App. 229, 231 (1) (483 SE2d 624).

        Martin v. Patton, supra at 158, citing Roberts v. Groover, 156 Ga. 386, 387 (2) (119 SE 696).

        Kendall v. Wells, 126 Ga. 343, 344 (1) (55 SE 41); accord Rawlings v. Cohen, 143 Ga. 726 (1) (85 SE 851).

       139 Ga. 433, 435 (1) (77 SE 375).

       Id.

        Harper v. Hesterlee, 152 Ga. 251 (1) (109 SE 902).

       (Citations and punctuation omitted.) Zager v. Brown, 242 Ga. App. 427, 429 (530 SE2d 50).


text:
    A00A1313.
    SHEETS v. THE STATE.
    (535 SE2d 312)
   McMURRAY, Senior Appellate Judge.

David Ray Sheets was indicted for three counts of first degree vehicular homicide, two counts of driving under the influence of alcohol, reckless driving, and driving while his license was suspended. The charges arose when Sheets, who was driving along Steadman Road in Haralson County, smashed into a tree with such great force that his vehicle was sheared in two. Sheets’ sole passenger, his half-brother, Brian Patrick Goodwin, was thrown from the car and struck the pavement head-first. Goodwin, suffered massive head injuries and was pronounced dead at the scene. The absence of skid marks demonstrated that Sheets never applied the brakes. A blood test performed on Sheets revealed that his blood alcohol level was 0.15 grams percent. Sheets was convicted on all counts. He contends the trial court erred in setting aside four of his peremptory jury strikes and in admitting expert testimony that his injuries were consistent with him being the driver of the vehicle. Held:

1. The trial court did not err in determining that the State sustained its burden of proving that Sheets exercised his peremptory challenges in a gender-biased manner

The Equal Protection Clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender as well as race. The three-part test utilized to review claims of race discrimination under Batson v. Kentucky is also applied to analyze gender discrimination claims. Initially, the' opponent of a peremptory challenge must make out a prima facie case of discrimination. The proponent of the strike is then required to set forth a gender-neutral, case-related, clear and reasonably specific explanation for the exercise of his strikes. “At this point, the proponent of the strike need not proffer an explanation that is persuasive or even plausible — all that is required is an explanation that is facially [gender]-neutral.”

The third step of the process requires the trial court to determine whether, considering the totality of the circumstances, the opponent of the strikes has shown that the proponent was motivated by discriminatory intent in the exercise of his strikes. The opponent of the strikes may carry his burden of persuasion by showing that similarly situated opposite sex jurors were not struck or that the proponent’s gender-neutral reason for a strike “is so implausible or fantastic that it renders the explanation pretextual.” The trial court’s findings on whether the opponent of the strike has met his burden of persuasion are entitled to great deference and will be affirmed on appeal unless clearly erroneous.

In the case sub judice, Sheets used eight of his ten peremptory strikes against female prospective jurors. As a result, the trial court found that the State had made a prima facie showing of gender discrimination and required defense counsel to explain his strikes.

Counsel stated that he struck the first female prospective juror, B. H. O., because Sheets had shopped at the store where B. H. O. worked. Counsel thus claimed that B. H. O. must have been acquainted with Sheets. However, the trial court found that B. H. O. had not stated that she knew Sheets. As voir dire was not transcribed, we must assume the trial court’s finding was correct.

Counsel further explained that he struck B. H. O., as well as prospective juror nos. 7 and 14, because they were nondrinkers. However, the prosecutor pointed out that defense counsel had not challenged a male nondrinker. The trial court deemed counsel’s reasons for striking those three jurors pretextual. Counsel then stated that he struck juror nos. 7 and 14 because he knew nothing about them and “couldn’t find anybody else who knew anything” about them.

When asked to give a gender-neutral reason for striking juror no. 8, counsel initially could not recall her. Subsequently, counsel explained that he struck her because she was a retired schoolteacher and he “just didn’t feel like she would make a good juror.”

Defense counsel’s proffered reasons for striking B. H. O. and juror nos. 7, 8, and 14 were, at best, weak. However, in light of Purketfs admonition that “ ‘a legitimate reason’ is not a reason that makes sense, but [one] that does not deny equal protection,” we are constrained to conclude that they were gender-neutral. Thus, Sheets satisfied the second prong of the Batson analysis. However, considering the totality of the circumstances — the number of Sheets’ strikes against women, the fact that Sheets proffered a “laundry list” of reasons for almost every strike, and the fact that Sheets did not strike at least one male nondrinker — the trial court was authorized to conclude that the reasons were pretextual.

Decided May 31, 2000

Murphy, Murphy & Garner, Meng H. him, for appellant.

James R. Osborne, District Attorney, Elizabeth L. Larson, Assistant District Attorney, for appellee.

2. Sheets next argues that the trial court erred in permitting Haralson County Deputy Coroner Bill Hightower to testify that Sheets’ injuries were consistent with a finding that he was the driver of the vehicle at issue. Sheets contends that Hightower, who was not qualified as a motor vehicle reconstruction expert, impermissibly testified to the manner in which the collision occurred. We cannot agree.

Hightower testified that Goodwin’s injuries were consistent with having been ejected through the windshield from the passenger’s seat. Conversely, Hightower determined that Sheets’ injuries — broken teeth and mouth lacerations — were caused by contact with the steering wheel.

The record reveals that the trial court carefully limited High-tower’s testimony to the manner and cause of Sheets’ and Goodwin’s respective injuries. As the evidence demonstrated that Hightower was a licensed paramedic as well as the county’s deputy coroner, the cause of the injuries sustained by the occupants of the vehicle was a matter well within Hightower’s field of expertise.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       The trial court ruled that the first six offenses merged for purposes of sentencing and imposed a sentence of fifteen years imprisonment for vehicular homicide plus twelve months on the license offense. Sheets was sentenced as a recidivist based on his prior convictions, including six for habitual violator, five for driving under the influence of alcohol, two for burglary, and one for selling marijuana.

        J. E. B. v. Alabama, 511 U. S. 127 (114 SC 1419, 1429-1430, 128 LE2d 89); Tedder v. State, 265 Ga. 900, 901 (2) (463 SE2d 697).

       476 U. S. 79 (106 SC 1712, 90 LE2d 69).

        McGlohon v. State, 228 Ga. App. 726, 727 (492 SE2d 715).

        Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834).

        Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674).

       Id.

       Id.

       (Punctuation omitted.) Id.

       Id.

        Russell v. Parkford Mgmt. Co., 235 Ga. App. 81, 83 (2) (508 SE2d 454).

       In his brief, appellate defense counsel indicates that the male nondrinker was not struck because he was a former client of trial defense counsel. Thus, “counsel felt that [he] was a good juror candidate for the defendant.”

        Purkett, supra at 768.

        McGlohon, supra at 726-727.


text:
    A00A1507.
    WILKERSON v. THE STATE.
    (535 SE2d 505)
   McMURRAY, Senior Appellate Judge.

Appellant Steve Allan Wilkerson and his brother, David Wayne Wilkerson, were indicted separately, but tried jointly, on one count of aggravated assault each. Evidence adduced at trial showed that the Wilkerson brothers approached the victim in a convenience store parking lot. They correctly suspected the victim was romantically involved with David Wilkerson’s wife. After a heated verbal exchange, Steve Wilkerson produced a knife and threatened to cut the victim’s throat. The victim withdrew to his truck. Steve Wilkerson then retrieved a tire iron from his vehicle and tossed it to David Wilkerson, who threw it through the driver’s side window of the victim’s truck, hitting the victim in the head. The victim sustained a small cut.

The jury returned guilty verdicts for both defendants, and their motions for new trial were denied. Steve Wilkerson appeals. In his sole enumeration of error, Wilkerson urges reversal of his conviction based on the trial court’s refusal to charge the jury that conviction of one defendant does not necessarily require conviction of the other. Held:

In cases involving multiple defendants, the Supreme Court of Georgia urges trial courts:

to give a separate instruction which details the jury’s duty to consider each charge in the indictment against each defendant separately and which reminds the jury that the guilt of one defendant does not require the return of a guilty verdict against the other defendant.

To determine whether the trial court’s refusal to give the requested instruction harmed Wilkerson, this court must consider the charge in its entirety. Upon explaining the indictments, the trial court referred to “each particular indictment, or each charge contained in each of the two indictments.” The trial court further charged that each defendant is presumed innocent and that the presumption remains with each defendant. Moreover, the jury was instructed to determine whether the tire tool allegedly used by David Wilkerson constituted a deadly weapon. Finally, as to the verdict form, the jury was instructed to return a unanimous verdict as to each defendant. The trial court reiterated “that this rule certainly applies to each defendant in each separate indictment.” The defendants were never referred to in the plural.

Decided May 31, 2000

Harrison & Harrison, Samuel H. Harrison, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

While it is the “better practice” to charge the jury, particularly upon request, that the conviction of one defendant does not necessitate the conviction of the other, we find no reversible error in the case sub judice.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

        Nicholson v. State, 265 Ga. 711, 714 (3) (462 SE2d 144); see also Nunez v. State, 237 Ga. App. 808, 810 (2) (516 SE2d 357).

        Nicholson, supra at 713.

       Id. at 714.


author: Ellington, Judge.

text:
    A00A0025.
    SANFORD v. RDA CONSULTANTS, LTD.
    (535 SE2d 321)
   Ellington, Judge.

Robert M. Sanford appeals from a Cobb County Superior Court order granting an injunction against him in favor of his former employer, RDA Consultants, Ltd. The trial court issued the injunction following its determination that Sanford had violated a restrictive covenant in his employment contract with RDA. After reviewing the record on appeal, this Court finds that portions of both the covenant- and the injunction are unenforceable under Georgia law, and we reverse those portions of the trial court’s order.

RDA is a software development consulting services company that conducts business in five states, including Georgia, and the District of Columbia. RDA opened its Atlanta office in March 1998 and hired Sanford in May 1998. On May 27, 1998, Sanford signed an employment contract that contained the following provision:

As part of this agreement to accept employment, you agree that full rights to any and all work performed and products developed by you for fee or compensation during your tenure with the firm belong to RDA. Further, any information pertaining to clients such as their plans, products, and financial information should be considered proprietary information and should not be disclosed to any persons not employed by RDA. Employment is at will and in the case of employment termination, for any reason, at the decision of either party, you agree for a period of one year from the date of termination not to accept employment with or provide services, competitive to RDA’s own, to any current RDA customers or customers RDA has worked with during the two years prior to employment termination and not to attempt to employ or assist any other person in employing or soliciting for employment any employee employed by RDA.

During his employment with RDA, Sanford used RDA’s software product, ROOP, and was given videos, written documents, and other supporting materials about the product. Sanford’s supervisor testified that RDA spent between $500,000 and $1,000,000 over approximately four years while developing ROOP.

On December 14, 1998, Sanford sent his supervisor a letter of resignation by electronic mail. Within weeks, Sanford started his own company and was consulting with one of RDA’s customers, UPS. Sanford also contacted RDA employees about leaving the company.

RDA notified Sanford that his actions were in violation of his employment agreement. When Sanford refused to discontinue his activities, RDA filed suit to enforce the agreement through an injunction and for breach of contract. RDA also moved for a temporary restraining order against Sanford.

On April 1, 1999, the trial court conducted a hearing and, after considering additional evidence submitted by the parties, issued its order on May 26, 1999. The trial court made the following factual findings and legal conclusions: (1) the restrictive covenant in Sanford’s employment contract was reasonable, even absent a territorial restriction, citing W. R. Grace & Co. v. Mouyal, 262 Ga. 464 (422 SE2d 529) (1992); (2) Sanford performed work for an RDA customer and directly competed with an RDA bid for work with another existing RDA customer; (3) Sanford talked with RDA employees about resigning and working with him in the future; and (4) ROOP was proprietary information belonging to RDA, and Sanford violated the restrictive covenant by using ROOP after his resignation from RDA.

Based upon such findings, the trial court issued an injunction, “in accordance with the restrictive covenant,” prohibiting Sanford from the following for a period of one year from the date of his employment termination with RDA:

(1) performing services, submitting proposals to, and servicing the following customers of [RDA] with whom [Sanford] rendered services to in the Atlanta office, to wit: UPS, HBOC, RMC, Cox Interactive Media, AT&T, and Mercedes Benz Credit Corporation; (2) soliciting or attempting to employ any of [RDA’s] present employees; (3) using or disclosing any of [RDA’s] proprietary materials, including, but not limited to, ROOP; and (4) using improper means to interfere with business opportunities for Plaintiff.

Sanford appeals from the trial court’s order granting this injunction. Held:

1. In his first enumeration, Sanford claims that the trial court erred as a matter of law in restraining him from performing services, submitting proposals to, and servicing RDA’s customers. We agree, because the noncompetition covenant as written was unenforceable under Georgia law.

Because covenants against competition in employment agreements are in partial restraint of trade, they are upheld only when strictly limited, both in time and geographical effect, and when the restrictions are otherwise reasonable, considering the business interests of the employer needing protection and the effect of the restrictions on the employee.

(Citation omitted.) Wolff v. Protege Systems, 234 Ga. App. 251, 252 (1) (a) (506 SE2d 429) (1998). Georgia’s courts use a three-element test of duration, territorial coverage, and scope of activity as a “helpful tool” in examining the reasonableness of a restrictive covenant in an employment contract, based upon the particular factual setting to which it is applied. W. R. Grace & Co. v. Mouyal, supra at 465 (1). Applying this test to the noncompetition clause before us, we find that the lack of limitations on territorial coverage and scope of activity makes the provision unreasonably overbroad and, therefore, unenforceable as a matter of law.

The evidence presented at the hearing showed that, at the time Sanford resigned, RDA had approximately forty-five customers in five states and the District of Columbia. The plain language of the agreement prohibited Sanford from working for any of its current customers for one year, as well as any customer served by RDA during the two years prior to Sanford’s resignation. Even though RDA has repeatedly asserted otherwise, this provision prohibited Sanford from seeking employment with these customers regardless of whether he served the customer during his employment with RDA. “[A] prohibition against doing business with any of an employer’s customers, whether or not a relationship existed between the customer and the former employee, is overbroad.” (Emphasis in original.) W. R. Grace & Co. v. Mouyal, supra at 467 (2), n. 2. See also American Software v. Moore, 264 Ga. 480, 483 (1) (448 SE2d 206) (1994).

Further, at the time he signed the agreement, Sanford could not determine with any certainty the extent of the noncompetition provision. See Fuller v. Kolb, 238 Ga. 602, 603-604 (234 SE2d 517) (1977) (the problem with this type of covenant is the lack of notice to the former employee regarding whether he will be in violation of the covenant by accepting certain employment opportunities). Since any territorial limitations on his future employment opportunities could not be determined until Sanford resigned from RDA, the provision is invalid. Ceramic &c. Corp. v. Hizer, 242 Ga. App. 391, 393 (1) (529 SE2d 160) (2000); Harville v. Gunter, 230 Ga. App. 198, 200 (1) (495 SE2d 862) (1998).

Finally, the noncompetition provision was overbroad and unenforceable as to the scope of employment, because it prohibited Sanford from obtaining employment with any RDA customer in any capacity. Nat. Settlement Assoc. &c. v. Creel, 256 Ga. 329, 332 (3) (c) (349 SE2d 177) (1986); Wright v. Power Indus. Consultants, 234 Ga. App. 833, 834-835 (2) (508 SE2d 191) (1998).

Therefore, we reverse the portion of the trial court’s order granting an injunction based on the invalid noncompetition covenant. We will address Sanford’s concerns about the remaining covenants, however, as the covenants are not dependent upon this invalid noncom-petition clause. Wright v. Power Indus. Consultants, 234 Ga. App. at 834 (1); Sunstates Refrigerated Svcs. v. Griffin, 215 Ga. App. 61, 62 (2) (449 SE2d 858) (1994).

2. Sanford claims that the trial court erred in prohibiting him from soliciting or attempting to employ any of RDA’s present employees. Under the facts and circumstances of this case, we find this covenant to be reasonable in scope and duration. See Wright v. Power Indus. Consultants, 234 Ga. App. at 839 (5). Therefore, we uphold the trial court’s finding that it is enforceable and its injunction based thereon.

3. Sanford contends that the trial court erred in enjoining him from using or disclosing any of RDA’s proprietary materials, including but not limited to ROOP. This injunction was based upon an ambiguous portion of the agreement, which stated in part as follows: “any information pertaining to clients such as their plans, products, and financial information should be considered proprietary information and should not be disclosed to any persons not employed by RDA.”

(a) Pretermitting the issue of whether this provision is a valid nondisclosure agreement between the parties, the trial court properly enjoined Sanford from using or disclosing ROOP. The trial court found that RDA had proprietary interests in ROOP that required protection; that Sanford had access to RDA’s trade secrets, including ROOP, through his employment with RDA; and that Sanford had already utilized RDA’s proprietary products to compete with RDA for their customers. These findings are supported by the record.

Trade secrets are entitled to protection so long as competitors fail to duplicate them by legitimate, independent research. Even without an express restrictive covenant, one of the implied terms of a contract of employment is that the employee will not disclose a trade secret learned during his employment, to a competitor of his former employer. It is not relevant whether or not a valid express written contract or restrictive covenant was entered into.

(Citation omitted; emphasis supplied.) Thomas v. Best Mfg. Co., 234 Ga. 787, 789 (3) (218 SE2d 68) (1975). The trial court’s decision to enjoin Sanford from using or disclosing RDA’s proprietary interests in ROOP was not an abuse of discretion. See Wright v. Power Indus. Consultants, 234 Ga. App. at 838 (4); see also OCGA § 9-5-8 (the granting of injunctive relief is a matter of discretion for the trial court).

(b) The injunction issued by the trial court, however, prohibited Sanford from “using or disclosing any of [RDA’s] proprietary materials, including, but not limited to, ROOP.” This provision lacks sufficient detail to fully apprise Sanford of which materials may not be used or disclosed and, therefore, fails to comply with OCGA § 9-11-65 (d). See Wolff v. Protege Systems, 234 Ga. App. at 254 (1) (c); Ward v. Process Control Corp., 247 Ga. 583, 584 (3) (277 SE2d 671) (1981). As such, this portion of the injunction is invalid and must be reversed.

4. (a) The portion of the injunction prohibiting Sanford from “using improper means to interfere with business opportunities for RDA” is also invalid under OCGA § 9-11-65 (d), as it fails to sufficiently describe the behavior prohibited by the term “improper means.”

Decided June 1, 2000.

David C. Butler, for appellant.

Weinstock & Scavo, Michael Weinstock, Elizabeth M. Jaffe, for appellee.

(b) Sanford also claims that the effective dates of the injunction are uncertain under OCGA § 9-11-65 (d), because he continued to work for RDA after he tendered his resignation. It is undisputed, however, that Sanford tendered his resignation on December 14, .1998, effective immediately. The injunction stated that it was effective for one year from the date of Sanford’s employment termination. By specifically referring to the event of Sanford’s employment termination, we find that the injunction describes the starting date in sufficient “reasonable detail” to comply with OCGA § 9-11-65 (d).

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Ruffin, J., concur.

       “ROOP” is an acronym for “RDA’s Object Oriented Process.’

       RDA’s assertion that the scope of employment is, in fact, limited to “competitive” employment opportunities is without merit in that it ignores the plain language of the covenant, which uses the disjunctive word “or” to prohibit Sanford from accepting employment with or providing services to RDA customers. The adjective “competitive” clearly modifies only “services.” This Court also notes that the trial court’s injunction failed to limit the employment prohibitions therein to “competitive” services.

       OCGA § 9-11-65 (d) reads as follows:
      Every order granting an injunction and every restraining order shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action.


author: Blackburn, Presiding Judge.

text:
    A00A0301.
    BRYANT v. PMC CAPITAL, INC.
    (535 SE2d 319)
   Blackburn, Presiding Judge.

In this breach of contract action, Bruce S. Bryant appeals from the trial court’s grant of summary judgment to PMC Capital, Inc., contending that the trial court erred by finding the contract unenforceable because it violated the regulations of the Small Business Administration (SBA). Because we find, under the facts of this case, that the trial court improperly applied the regulations to the alleged contract, we reverse the grant of summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Punctuation omitted.) Parker v. Welborn, 236 Ga. App. 344 (511 SE2d 917) (1999).

Viewed in this light, the record shows that, in fall 1994, Bryant, a mortgage broker, was helping a client obtain a construction and permanent loan for the construction of a hotel. Bryant contacted PMC Capital, which makes commercial loans. At a meeting about the loan, PMC Capital orally agreed that Bryant would be entitled to a “referral fee” in the amount of two percent of the SBA-guaranteed portion of the loan. The agreement was never put in writing. The loan was preliminarily approved on December 20, 1994.

Effective January 1, 1996, new SBA regulations required:

[a]ny Applicant, Agent, or Packager must execute and provide to SBA a compensation agreement, and any Lender Service Provider must execute and provide to SBA a Lender Service Provider agreement. Each agreement governs the compensation charged for services rendered or to be rendered ... in any matter involving SBA assistance. . . . Each Lender Service Provider must enter into a written agreement with each lender for whom it acts in that capacity. SBA will review all such agreements.

13 CFR 103.5 (a) and (c). PMC Capital and Bryant did not execute such an agreement.

Ultimately, the loan, guaranteed in part by SBA, closed on June 28, 1996. After the loan closed, Bryant requested that PMC Capital pay a referral fee in the amount of $15,000. PMC Capital refused to pay the fee, arguing that it had never agreed to pay a fee to Bryant. Bryant then sued to recover the fee, and PMC Capital moved for summary judgment.

1. The trial court granted summary judgment to PMC Capital on the grounds that the alleged contract was illegal and unenforceable. The trial court determined that the alleged contract violated SBA regulations because Bryant was a lender service provider who had not entered into a Lender Service Provider Agreement as required by the subsequently enacted regulations. On appeal, Bryant contends the trial court’s findings are erroneous, arguing that the regulations at issue did not apply to the contract. We agree.

Viewing the evidence and all reasonable inferences in favor of Bryant, the nonmovant, we must consider the oral agreement for a two percent referral fee was valid and enforceable at the time of contracting. See Parker, supra. The subsequently enacted SBA regulations could not affect the parties’ rights in the validly entered contract. Furthermore, Bryant’s contentions that he originated the loan prior to the effective date of the regulations, without evidence to the contrary, would be sufficient to survive PMC Capital’s motion for summary judgment.

Decided June 1, 2000.

G. Watson Bryant, Jr., for appellant.

Lawson, Davis, Pickren & Seydel, Paul R. Jordan, for appellee.

“ ‘Laws prescribe only for the future; they cannot impair the obligation of contracts nor, ordinarily, have a retrospective operation.’ OCGA § 1-3-5.” Foss v. Probate Court of Chatham County, 232 Ga. App. 612, 613 (502 SE2d 278) (1998). Thus, the subsequently enacted regulation cannot be used as a defense to a claim under the alleged contract. In this case, the trial court erroneously gave the SBA regulations retroactive operation which impaired the obligations under a pre-existing contract. Consequently, the trial court erred by finding the alleged contract unenforceable for this reason and by granting summary judgment to PMC Capital on this basis.

Furthermore, while it is true that “[a] contract to do an immoral or illegal thing is void,” OCGA § 13-8-1, the contract is void only if the object or purpose of the contract is illegal. When the illegality is only tangential to the contract, it does not operate to void the contract. R.R.R. Limited Partnership v. Recreational Svcs., 264 Ga. 494, 495 (2) (448 SE2d 211) (1994); Shannondoah, Inc. v. Smith, 140 Ga. App. 200 (230 SE2d 351) (1976). Thus in this case, even if the regulation applied to the alleged contract, the failure of Bryant to enter into a separate SBA-approved agreement is tangential and does not make the purpose of the alleged contract illegal.

2. As questions of fact remain with regard to Bryant’s breach of contract claim and the viability of PMC Capital’s other defenses, we cannot determine whether or not PMC Capital acted in bad faith, has been stubbornly litigious or caused Bryant unnecessary trouble and expense. Accordingly, we reverse the trial court’s grant of summary judgment to PMC Capital on Bryant’s claim to recover attorney fees and expenses of litigation under OCGA § 13-6-11.

Judgment reversed.

Eldridge and Barnes, JJ., concur.


text:
    A00A0593.
    GILLIAM v. FLETCHER BRIGHT COMPANY.
    (535 SE2d 325)
   Ellington, Judge.

Jackie Gilliam sued Fletcher Bright Company for injuries received when she slipped and fell in the defendant’s parking lot. She appeals from the grant of summary judgment to the defendant. Finding no error, we affirm.

This Court reviews de novo the grant of a motion for summary judgment to determine whether the trial court properly found that no material issues of fact existed and that the movant was entitled to judgment as a matter of law. Moore v. Food Assocs., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). “(T)o recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735[, 748] (493 SE2d 403) (1997).

Cleveland v. Snowdrop Properties, 232 Ga. App. 447 (501 SE2d 546) (1998).

1. In this case, Gilliam’s own admissions showed that she had actual or constructive knowledge of the hazard that resulted in her injury. The evidence showed that it had snowed on December 18, 1996, and patches of snow and ice were on the ground and roads the next morning. Gilliam knew the temperature was near freezing. She noticed that her car had ice on it. She used extra care to avoid slippery spots in the driveway as she got into her car to go to work. She drove to a convenience store and noticed snow and ice on the road. It was daylight when Gilliam drove into the defendant’s convenience store parking lot, and she observed areas of snow and ice on the lot. She parked to the side of the building and walked around the back of her car. Gilliam then slipped and fell on what she believed to be ice, although she did not observe any ice in the immediate area either before or after the fall.

Accordingly, the evidence presented “plainly, palpably, and indisputably lead[s] to the conclusion” that Gilliam had actual or constructive knowledge of the presence of icy conditions before she left her car to traverse the defendant’s parking lot. Robinson v. Kroger Co., 268 Ga. at 743 (1); Columbus Doctors Hosp. v. Thompson, 224 Ga. App. 682, 684 (482 SE2d 705) (1997); Westbrook v. M & M Super markets, 203 Ga. App. 345, 346 (416 SE2d 857) (1992); cf. Dumas v. Tripps of N. C., 229 Ga. App. 814, 815-816 (1) (495 SE2d 129) (1997) (plaintiff had no reason to anticipate an icy parking lot because there had been no snow or rain in the preceding week). Therefore, the trial court did not err in granting summary judgment to the defendant.

Decided June 1, 2000.

Michael J. Kramer, for appellant.

Dermer, Brown, Rogers & O’Neill, Richard W. Brown, for appellee.

2. Gilliam’s remaining contentions are controlled by our decision in Division 1, supra. A grant of summary judgment that is right for any reason must be affirmed. Bob v. Hardy, 222 Ga. App. 550, 551 (1) (474 SE2d 658) (1996).

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

       Assuming that Gilliam slipped on ice, there was no evidence to demonstrate that the presence of the ice was the result of any affirmative action taken by the defendants. See Columbus Doctors Hosp. v. Thompson, 224 Ga. App. 682-683 (482 SE2d 705) (1997). Although Gilliam asserted that there was a gutter in the area which may have contributed to the icy conditions, such “evidence” was pure speculation. Gilliam admitted that she did not notice the gutter until weeks after the accident and that she had no knowledge of the gutter’s condition on the day she fell. Therefore, such speculation fails to demonstrate that the presence of the gutter made the naturally occurring icy condition more dangerous. See Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996) (speculation which raises merely a possibility is insufficient to create even an inference of fact for consideration on summary judgment).