author: McMurray, Presiding Judge.

text:
    A91A1984.
    AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. v. BERLYE et al.
    (414 SE2d 499)
   McMurray, Presiding Judge.

Plaintiff American Express Travel Related Services Company, Inc. entered into a “Trust Agreement” which set forth the terms of a contract under which defendant Convenient Financial Services Group, Inc. d/b/a Cashland Check Cashing was appointed an agent to sell American Express Money Orders and agreed to remit certain funds to plaintiff. Defendants Jay Berlye and Judy Berlye executed a guaranty of the payment of all sums due to plaintiff from the agent under the “Trust Agreement.”

When the “Trust Agreement” was executed on or about July 20, 1988, Jay Berlye was the sole shareholder of Convenient Financial Services Group, Inc. In October of 1988, Jay Berlye sold a majority of the shares in this corporation to Carlquist. Convenient Financial Services Group, Inc. began operating a second business and selling American Express Money Orders, at a separate location, known as Associated Check Cashing in November of 1988. Pursuant to its usual practice where a vendor sells money orders from more than one location, plaintiff set up a separate account for the new location but did not obtain a separate contract. In March of 1989, Jay Berlye sold the remainder of his shares of Convenient Financial Services Group, Inc., to Carlquist and resigned as an officer of the corporation.

While its previous obligations to plaintiff had been paid in full, Convenient Financial Services Group, Inc., failed to submit a required weekly transfer of proceeds from the sale of plaintiff’s money orders on March 15, 1990, and it became apparent that money orders had been sold for which money was not transferred to plaintiff. The “Trust Agreement” was terminated and this action followed.

Plaintiff sought damages from Convenient Financial Services Group, Inc., on theories of breach of trust and fiduciary duty, breach of contract, and conversion. Plaintiff’s claim against Jay Berlye and Judy Berlye is predicated on their guarantee of Convenient Financial Services Group, Inc.’s performance under the “Trust Agreement.” Plaintiff’s motion for summary judgment was granted as to defendant Convenient Financial Services Group, Inc., and denied as to defendants Jay Berlye and Judy Berlye. Defendants Jay Berlye’s and Judy Berlye’s motion for summary judgment against plaintiff was granted. Plaintiff appeals the grant of summary judgment in favor of Jay Berlye and Judy Berlye, and appeals the denial of its motion for summary judgment against these two defendants. Held:

1. The initial issue concerns the effect of the reference in the “Trust Agreement” to the business operated by Convenient Financial Services Group, Inc., Cashland Check Cashing, and of the subsequent creation of the second business, Associated Check Cashing. The superior court concluded that “the trust agreement as signed clearly and unambiguously named only the first business, Cashland Check Cashing, as the business being operated by the corporation listed as the party to the trust agreement, and for which Defendants [Jay Berlye and Judy Berlye] gave their guaranty. The guaranty cannot be construed to include any new businesses formed by the corporation. . . . Defendants cannot be bound for the debts of Associated Check Cashing, a business which was not included in the original contract. . . . Regardless of the fact that Defendants [Jay Berlye and Judy Berlye] guaranteed the debts of Convenient Financial Services Group, Inc., it was the corporation ‘d/b/a Cashland Check Cashing’ which was specified in the trust agreement, and Defendants cannot be held liable for any other businesses owned by the corporation. . . .”

We reject the superior court’s analysis of this issue. Defendants Jay Berlye and Judy Berlye guaranteed the payment in full of all sums due under the “Trust Agreement” to plaintiff by the agent defined in the “Trust Agreement.” That agent is Convenient Financial Services Group, Inc. There is no legally cognizable entity known as Cashland Check Cashing or Associated Check Cashing involved in this case. The use of d/b/a or “doing business as” to associate a tradename with the corporation using it does not create a legal entity separate from the corporation but is merely descriptive of the corporation. See Moore v. Bank of Dahlonega, 82 Ga. App. 142, 147, 148 (60 SE2d 507); Duval v. Midwest Auto City, 425 FSupp. 1381, 1387. “If one undertakes an obligation in a fictitious or trade name, the obligation is his own individually. National Cash Register Co. v. Sikes, 94 Ga. App. 391, 392 (94 SE2d 782) (1956).” Horn v. Wright, 157 Ga. App. 408 (1), 409 (278 SE2d 66).

It follows that there was not a novation releasing the Berlyes from their guaranty when plaintiff altered its copy of the “Trust Agreement” to add to the description of the agent the following terms: “Associated Check Cash.” This alteration was stated by plaintiff’s employee to have been made for internal record keeping purposes and was not intended to have any legal effect. Nonetheless, as altered the agent is shown to be “Convenient Financial Services Group, Inc. d/b/a Cashland Check Cashing & Associated Check Cash.” While the description of the agent is altered, the identity of the agent with whom plaintiff contracted remains unaltered. The change in the description of the agent was immaterial as it did not alter or affect the terms of the contract. Thus, the risk to the Berlyes was not changed and these guarantors were not discharged. The superior court erred in granting summary judgment in favor of the Berlyes and against plaintiff.

2. The Berlyes also contend that they terminated their obligation under the guaranty by a letter which Jay Berlye wrote to plaintiff’s agent, dated January 5, 1990. Plaintiff has no record of having received the letter. “Before any presumption arises that a letter has been received through the mails it must be shown that ‘the letter (1) was written; (2) was properly addressed to the party; (3) contained the correct postage; and (4) was duly mailed in the United States Post Office.’ [Cits.]” Edmondson v. Air Svc. Co., 123 Ga. App. 263 (2) (180 SE2d 589). There is no evidence that the letter written by Jay Berlye was duly mailed in the United States Post Office with correct postage affixed.

Even if the letter written by Jay Berlye was received by plaintiff, it did not cause a unilateral termination of the Berlyes’ guaranty obligations. The guaranty agreement contained no provision for a unilateral termination such as contemplated by Jay Berlye’s letter. “It is elemental that it is not possible to have a unilateral modification of a contract previously entered into between the parties.” Goldstein v. Ipswich Hosiery Co., 104 Ga. App. 500, 519 (30), 520 (122 SE2d 339). Nor would plaintiff’s failure to respond to Jay Berlye’s letter amount to an implied acceptance under OCGA § 24-4-23 of the attempted termination of the guaranty contained therein. “ ‘[A] failure to reply to statements made in a letter, which is not a part of a mutual correspondence is not considered an implied admission by the addressee of the truth of the statements.’ Western Union Telegraph Co. v. Nix, 73 Ga. App. 184, 191 (3) (36 SE2d 111) (1945).” Lyons Mfg. Co. v. Cedarbaum, 174 Ga. App. 218 (1), 219 (329 SE2d 559).

Decided December 2, 1991

Reconsideration denied December 19, 1991

Alston & Bird, H. Douglas Hinson, for appellant.

Hurt, Richardson, Garner, Todd & Cadenhead, Elizabeth B. Hodges, J. Timothy White, Lisa S. Street, for appellees.

Finally, while plaintiff terminated the “Trust Agreement” in March of 1990, the Berlyes were not released from their obligations under the guaranty agreement. The Berlyes guaranteed the payment of all sums due from the agent under the “Trust Agreement” and consented in advance to renewals of the obligations of the agent. The “Trust Agreement” provided that: “In the, event of termination for any cause, Agent shall immediately remit to [plaintiff] the Proceeds for Money Orders sold by Agent. Agent shall also return to [plaintiff] all unsold Money orders . . . All such Money Orders and Proceeds due [plaintiff] shall, until remitted to [plaintiff], be held in trust by Agent for [plaintiff].” The evidence is in conflict as to certain events following the termination notice. There is evidence, which plaintiff controverts, that it consented to a resumption of money order sales by the corporate defendant. Whether or not such permission was given, the Berlyes remained responsible for the obligations of Convenient Financial Services Group, Inc., since the money orders and proceeds from the sale thereof were either subject to the termination provisions of the “Trust Agreement” or were governed by a renewal of the contract between plaintiff and Convenient Financial Services Group, Inc. The superior court erred in refusing to grant plaintiff’s motion for summary judgment against the Berlyes.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A91A2134.
    SMITH v. THE STATE.
    (414 SE2d 504)
   McMurray, Presiding Judge.

An indictment was returned against defendant on August 15, 1988, in the Superior Court of Houston County charging him with trafficking in cocaine (Count 1), possession of cocaine (Count 2) and carrying a concealed weapon (Count 3). Prior to the return of the indictment in the case sub judice, defendant had entered a guilty plea on May 23, 1988, in the 20th Judicial Circuit of the State of Michigan to the offense of delivery of cocaine under 50 grams and was sentenced to the penitentiary. On October 21, 1988, defendant served the District Attorney of Houston County, Georgia, with a notice of place of imprisonment and a request for disposition of indictments, information or complaints pursuant to OCGA § 42-6-20 (Art. Ill (a)). On March 30, 1989, defendant agreed with the Houston County District Attorney that he “would enter a guilty plea to the Houston County charges once he was released from prison in Michigan.” On June 9, 1989, defendant filed a motion to dismiss the Houston County indictment on the ground that his case was not prosecuted within 180 days after service of his notice of place of imprisonment and request for disposition of indictments, information or complaint. The trial court denied this motion, finding “that since the Defendant’s attorney and the Houston County District Attorney’s office entered into a joint recommendation agreed to by Defendant within 180 days, Defendant cannot now argue that the District Attorney’s office failed to bring him to trial within 180 days and that the indictments should be dismissed with prejudice.” This appeal followed the dismissal of Counts 1 and 3 of the indictment and defendant’s plea of guilty on Count 2 of the indictment. Held'.

“A party cannot complain of error that his own conduct aided in causing. Chambley v. State, 177 Ga. App. 630 (1) (340 SE2d 635).” Jones v. State, 198 Ga. App. 881, 882 (2), 883 (403 SE2d 867). In the case sub judice, the trial court did not err in denying defendant’s motion to dismiss the indictment since any delay in bringing defendant to trial within the time prescribed by OCGA § 42-6-20 (Art. III (a)) was precipitated by defendant’s agreement to “enter a guilty plea to the Houston County charges once he was released from prison in Michigan.”

Decided December 3, 1991

Reconsideration denied December 19, 1991

Sonya J. Calhoun, for appellant.

Edward D. Lukemire, District Attorney, Claire C. Chapman, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

       OCGA § 42-6-20 (Art. Ill (a)) provides, in pertinent part, as follows: “Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint. . . .”


text:
    A91A2000.
    YETMAN v. MITCHELL.
    (414 SE2d 530)
   McMurray, Presiding Judge.

J. Anthony Yetman, as administrator of the estate of his father, John Alfred Yetman, brought suit against Julia A. Mitchell in three counts, alleging wrongful retention of personalty belonging to the estate and wrongful use of bank accounts and credit cards belonging to the decedent. The trial court granted Mitchell’s motion for summary judgment as to Counts 1 and 3, and Yetman appeals.

The complaint alleged, and the answer admitted, that the decedent and appellee had lived together for a period of several years before the decedent was in an automobile accident on May 20, 1989, which left him quadriplegic and caused other severe injuries eventually resulting in his death on June 15, 1989. In her answer, appellee alleged that the decedent had transferred to her the car in issue, and that her actions in regard to the decedent’s bank account and credit cards were taken at the request and direction of the decedent, and thus were proper.

The record includes credit card statements showing that appellee had used various credit cards issued in the decedent’s name for several years. It is uncontroverted that in February 1989 the decedent purchased a used car, charging at least a portion of the down payment to one of his credit card accounts. That car remained titled in the name of the decedent at the time of his death. The documents in the record include an undated, typewritten bill of sale transferring the car from the decedent to appellee for one dollar and “other good and valuable considerations,” signed by the decedent and notarized by Dorothy Buchwald, and a document captioned “POWER OF ATTORNEY,” executed on May 22, 1989, appointing appellee as the decedent’s attorney in fact with regard to his checking account and credit card accounts, signed by appellee (with the decedent’s signature in parentheses) and notarized by Buchwald.

In support of her motion for summary judgment, appellee attached her affidavit, in which she deposed that the decedent bought the automobile in issue for her; that it was purchased at least partially with her own funds; and that she made the only three monthly payments thereafter from her own checking account. Copies of the cancelled checks were attached. She also deposed that prior to his death, the decedent had freely and voluntarily executed both the bill of sale to her and the power of attorney; that both were signed and notarized in her presence; that her use of the credit cards had been authorized by the decedent; and that the financial transaction involving the decedent’s last paycheck, in which she deposited that check in his checking account and then wrote a check on that account to cash and deposited the latter in her own checking account, was done pursuant to the power of attorney and at the decedent’s request and direction. Also attached to the motion was the affidavit of the notary, Dorothy Buchwald, in which she deposed that the notary signature on the document was hers; that she notarized the documents in issue; and that she had never, and would never, notarize a document whose signature she did not witness.

In opposition to the motion for summary judgment, appellant proffered his own affidavit, in which he deposed, on personal knowledge, that he was familiar with the signature of the decedent, his father, and that the signature on the power of attorney was not that of the decedent. He also deposed that the debt for the car was extinguished by the payment of credit life insurance which had been purchased by and issued to the decedent; and that numerous outstanding charges generated by appellee existed on the decedent’s credit card accounts. Held:

1. Appellant contends the trial court erred by granting summary judgment to appellee on Count 3 of the complaint regarding the credit card charges. Relying on Brooks v. State, 63 Ga. App. 575 (4) (11 SE2d 688) (1940), the trial court held that Buchwald’s notarization was proper, and found no question of fact that the deceased signed both documents freely and voluntarily. We do not agree. Brooks held only that the notary’s seal constitutes prima facie evidence that the legal formalities of the notary’s appointment have been complied with, which is not in issue here. Moreover, even assuming the regularity of Buchwald’s witnessing the signatures, no evidence was adduced that she knew the decedent or saw him sign either document (and it is noted that the power of attorney contains two signatures, the first being that of appellee). Where the signer of a document is unavailable, anyone who is familiar with the handwriting of another may testify as to his opinion of its authenticity. Wooten v. Life Ins. Co. of Ga., 93 Ga. App. 665, 667 (2) (92 SE2d 567) (1956). Given the fact that appellant deposed on personal knowledge that the signature on the power of attorney was not that of his father, a genuine question of material fact exists regarding whether Buchwald witnessed the decedent sign that document, and consequently regarding the authenticity and validity of the power of attorney. If the power was not valid, appellee would not have been entitled to deposit the decedent’s paycheck or use his credit cards pursuant to the power of attorney. Accordingly, summary judgment was improper as to Count 3 of appellant’s complaint regarding the wrongful use of credit cards.

Decided December 19, 1991.

Greer, Klosik & Daugherty, Donald J. Sharp, for appellant.

Charles W. Chesbro, for appellee.

Julia A. Mitchell, pro se.

2. As to Count 1 of the complaint, alleging wrongful retention of the automobile and other personal property, even assuming the validity of the bill of sale and accepting appellee’s averment that the decedent transferred the automobile to her, a reasonable inference may be made, from the fact that she subsequently made the monthly payments on the debt, that at least as between the decedent and appellee, appellee assumed the purchase money obligation incurred by the decedent and became thereafter the primary debtor on the note, with the decedent assuming the role of a mere. accommodation party or guarantor. See generally Betts v. Brown, 219 Ga. 782, 787-789 (2) (136 SE2d 365) (1964). As the proceeds of the credit life insurance on the life of the decedent, which are an asset of the estate, id. at 785-787 (1), paid the outstanding obligation of appellee, the estate would be entitled to either an interest in the automobile to the extent of the amount of those proceeds or reimbursement therefor. See id. Accordingly, summary judgment was improper as to Count 1 of the complaint as well.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A2140.
    CSX TRANSPORTATION, INC. v. McCORD.
    (414 SE2d 508)
   McMurray, Presiding Judge.

This is a Federal Employers’ Liability Act (FELA) case. Plaintiff McCord was employed by defendant CSX Transportation, Inc., when he suffered three on-the-job injuries for which he seeks to recover damages in the case sub judice. Two of the injuries occurred when plaintiff attempted to operate railroad switches and the third was sustained when he ran to catch railway cars which rolled away unexpectedly. Defendant appeals following a jury verdict and judgment in favor of plaintiff for $462,625, plus interest and costs. Held:

1. Defendant’s first enumeration of error complains of the trial court’s refusal to strike hearsay portions of plaintiff’s hospital record and admission into evidence of the entire hospital record. “Where a document offered into evidence is admissible in part and inadmissible in part, and objection is made to the document as a whole, it is not error to admit the whole document.” Stubbs v. Daughtry, 115 Ga. App. 22 (1) (153 SE2d 633). At trial, defense counsel insisted on the removal of hearsay material from the hospital record stating first that he had not read the document but that “medical records always have lots of hearsay. ...” After a brief examination of the exhibit, defense counsel “noted the nurse’s notes and the doctor’s notes both contain some hearsay material that I think needs to be taken out.” Defense counsel failed to provide a more specific objection and upon review of the record we find that plaintiff’s hospital record contains numerous notes of various nurses and doctors, so that we are unable to determine which contains the alleged hearsay material to which defense counsel was referring at trial. It follows that defense counsel’s failure to adequately preserve this issue on the record by specific statement of the grounds of his objection results in a waiver. Nor may defendant remedy this deficiency through its brief on appeal.

2. Defendant’s second and third enumerations of error complain that there was no evidence authorizing the trial court’s charge to the jury concerning the automatic coupler provisions of the Safety Appliance Act, 45 USC § 2. In order for this statute to become applicable, plaintiff was obligated to prove that the train couplers failed to function automatically on impact or that rail cars, once coupled, failed to remain attached until purposely released. O'Donnell v. Elgin, Joliet & Eastern R. Co., 338 U. S. 384, 389 (70 SC 200, 94 LE 187).

Plaintiff’s third injury occurred while he, along with others were forming a train. When an attempt was made to pull a cut of 25 rail cars which appeared to be coupled from Stand Pipe track, the cars separated and plaintiff mounted a car which was rolling and tried to stop the loose cars by use of a handbrake. Afterwards, plaintiff began to get stiff in his back and arms, and experienced severe pain in his lower back.

The rail cars involved in this alleged injury of plaintiff were placed in the Stand Pipe track by others who did not testify at trial. Plaintiff testified that the rail cars appeared to be coupled because the air hoses were coupled. Other witnesses testified that when air hoses are coupled the cars are presumed to be coupled since the practice upon the railway is to test that the cars are coupled before air hoses are attached. The rules of the defendant railroad required that the cars be coupled before the air hoses were attached. Thus, when rail cars with air hoses attached, separate when pulled such indicates a malfunction of the coupler. The jury was authorized to reject the conflicting testimony that air hoses were sometimes attached where rail cars had not been coupled and conclude that the attached air hoses were sufficient circumstantial evidence that the rail cars in question had been properly coupled so that the separation of a number of cars when pulled indicated a defective coupler. There being some evidence authorizing the charge on automatic couplers, the trial court did not err in presenting this issue to the jury. Hannula v. Ramey, 177 Ga. App. 512, 513 (2) (339 SE2d 735).

Defendant’s sole objection to the charge at issue was that it was not authorized by the evidence. Therefore, no issue as to the wording of the charge was preserved for appeal. Brown v. Dept. of Transp., 194 Ga. App. 530 (3), 531 (391 SE2d 32).

Nor do we find merit in defendant’s contention that plaintiff’s injuries were too remote to attribute to any violation of the Safety Appliance Act. Causation is generally a matter for the jury. In the case sub judice, there is evidence that rail cars were set in motion due to a faulty coupler and that plaintiff was injured while attempting to halt the rolling rail cars so as to protect defendant’s property and the safety of plaintiff’s co-workers. The jury was instructed on plaintiff’s burden of proof and duty to prove proximate cause. These enumerations of error are without merit.

3. In its fourth enumeration, defendant contends that the trial court erred in specially admitting plaintiff’s Alabama licensed attorney, Burge, to represent him in this case. Rule 1-203 of the State Bar of Georgia provides that a licensed attorney in good standing from another state may appear in the courts of Georgia “in isolated cases.” Defendant presented evidence that Burge was involved in no fewer than ten pending FELA cases in various Georgia courts and that in most of these instances Burge had been admitted, pro hac vice, or a motion pursuant to Rule 4.4 of the Uniform Rules for the Superior Courts was pending. Defendant argues that this level of activity exceeds that intended to be permitted under Rule 1-203 of the State Bar of Georgia and amounts to the unlawful practice of law in Georgia.

Whether an attorney licensed in another state will be permitted to appear in a specific case in the courts of Georgia is generally a matter for the discretion for the trial court in the absence of abuse. Pence v. Seaboard Coast Line R. Co., 128 Ga. App. 161 (196 SE2d 182). In the case sub judice, the activities of the out-of-state attorney in Georgia appear to be limited to cases within a narrow specialty in which he has a genuine expertise and there is no indication that he is involved in using our provision for pro hac vice appearances to circumvent our licensing requirements or conduct a general practice of law. In West Virginia ex rel. H. K. Porter Co. v. White, 386 SE2d 25, the West Virginia Supreme Court construed a rule governing pro hac vice admissions similar to those applicable here and including a provision prohibiting “numerous or frequent” appearances. The West Virginia Supreme Court held that under circumstances substantially similar to those here, the “numerous or frequent” appearances language would not be interpreted to reject the pro hac vice application of an otherwise qualified attorney. This case appears to be representative of the general view on this issue. See 61 ALR3d 264 and 20 ALR4th 855. We find no abuse in the trial court’s special admission of Burge to represent plaintiff in the case sub judice.

4. In the fifth enumeration of error, defendant contends that a charge given the jury predicated on 45 USC § 54, that plaintiff did not assume the risks of his employment, was misleading or an erroneous statement of the law in that a portion of the statutory language requiring defendant’s negligence was omitted. However, there was no objection to the jury charge preserving the issue now argued by defendant. Defendant’s only objection at trial to the charge at issue was that it was not adjusted to the evidence. On appeal, any review of a jury charge is limited to the grounds of objection stated at trial. Brown v. Dept. of Transp., 194 Ga. App. 530 (3), 531, supra.

5. One of plaintiff’s injuries allegedly occurred due to rock or gravel which had leaked from a hopper type rail car and interfered with the functioning of a railroad switch. Plaintiff was allowed to introduce into evidence, over defendant’s objection, photographs which illustrated piles of rock such as plaintiff had testified had leaked from defendant’s hopper cars. Defendant objected on the basis that the photographs do not show the switch in question or rock on the switch in question, and defendant’s sixth enumeration of error complains of the admission of the photographs.

“ ‘Photographs, diagrams, maps, plans, and similar items are generally admissible, when relevant, to describe a person, place, or thing, for the purpose of explaining and applying the evidence and assisting the court and jury in understanding the case.’ [Cit.]” Powell v. State, 105 Ga. App. 614, 615 (2) (125 SE2d 531). “The admission or exclusion of photographs, even when there is admittedly some difference in the situation portrayed and that which existed, is a matter within the discretion of the trial judge and will not be controlled unless abused. McKinney v. Pitts, 109 Ga. App. 866 (4) (137 SE2d 571). And see Toler v. State, 213 Ga. 12 (2) (96 SE2d 593); City of Thomasville v. Crowell, 22 Ga. App. 383 (4) (96 SE 335).” Grasham v. Southern R. Co., 111 Ga. App. 158, 161 (6) (141 SE2d 189). Just as we found no abuse of discretion upon the admission into evidence of a photograph of a similar truck in McKinney v. Pitts, 109 Ga. App. 866 (4), supra, we find no abuse of discretion in the case sub judice in admitting the photographs of similar deposits of rock from leaking hopper cars, such evidence being relevant to aid the jury in understanding the manner in which plaintiff was injured.

6. Defendant enumerates as error the trial court’s refusal to give its requested charge on the theory of accident. Following the decision of this court in Chadwick v. Miller, 169 Ga. App. 338, 339 (1) (312 SE2d 835) “[t]he defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error. [Cits.]” Id. at 344.

Pretermitting any questions as to whether there was evidence authorizing a charge on accident, we find this enumeration of error to be without merit. At the charge conference, defense counsel agreed to strike a portion of the requested charge since the substance of the language removed was contained in other portions of the charge. Defense counsel also suggested a change which removed the word “accident” from the portion which was given in the charge to the jury. The only ruling the trial court was required to make concerning this request to charge was to strike a sentence, “[a]ccidents frequently occur through no one’s fault,” which was clearly argumentative and a comment on the evidence. Even as to the stricken sentence, defense counsel offered to remove the reference to “accidents,” but plaintiff’s counsel insisted on his objection for reasons other than the reference to the theory of accident. The defendant’s post charge objection to the trial court’s “failure to give in its entirety Defendant’s Request Number 7” was without merit. If any portion of a request is incorrect, denial of the request is proper. Pitts v. Bode, 198 Ga. App. 787, 788 (3) (403 SE2d 66).

7. Defendant’s final enumeration of error complains of the trial court’s refusal to give its requested charge number 14. This charge states that plaintiff “was under a duty to observe obvious and apparent conditions. Every person owes to himself the duty to see what is plainly to be seen by the ordinary use of his or her senses and, if clearly visible, it is deemed, in law, to have been seen.

“The law presumes that a person possessing the normal faculty of sight must have seen that which was within the range of his sight.”

Defendant contends that this charge is approved by the decision in Meyers v. Union Pacific R. Co., 738 F2d 328. Plaintiff contends that the charge at issue is distinguishable from that approved in Meyers, that the charge is an attempt to inject assumption of the risk into the case, and would create a legal presumption that an injured railroad employee saw every dangerous condition thus making him an insurer of his safety.

While perhaps not particularly well drafted, we view the substance of the charge at issue to be little different in substance than that approved in Meyers and find no merit in the contentions that it would inject unstated and improper issues into the case. However, such does not alone establish that the refusal to give the requested charge was error. The jury was repeatedly charged that plaintiff was under a duty to exercise reasonable care for his own safety and the charge in question is no more than a specific application of this principle. Thus, since the principle embodied in the charge at issue was substantially covered by the trial court’s charge, there was no harmful error in the trial court’s refusal to give in charge the precise language requested. Smoky, Inc. v. McCray, 196 Ga. App. 650, 652 (5), 653 (396 SE2d 794); Wilmock, Inc. v. French, 185 Ga. App. 259, 262 (4) (363 SE2d 789).

Decided December 5, 1991

Reconsideration denied December 19, 1991

Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, for appellant.

Burge & Wettermark, Michael J. Warshauer, Dunaway & Wallace, Roger W. Dunaway, Jr., for appellee.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A2181.
    WHITE v. THE STATE.
    (414 SE2d 296)
   McMurray, Presiding Judge.

Defendant was indicted during the January term of the Superior Court of DeKalb County on four counts of armed robbery. During the next term of court (March term), defendant filed a demand for speedy trial pursuant to OCGA § 17-7-170. (The demand for trial was filed on April 30, 1991.) The March term of court and the May term of court passed without trial. On August 9, 1991, defendant filed a motion for discharge and acquittal. The motion was denied and defendant filed a notice of appeal on August 16, 1991. Held:

“OCGA § 17-7-170 requires that after a defendant accused of a noncapital offense makes a proper demand for trial, he must be tried within the term of the demand or by the end of the next succeeding term, provided that at both terms there are juries impaneled and qualified to try him. If he is not tried by the end of the term following the demand, ‘. . .he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.’ OCGA § 17-7-171 requires that after a defendant accused of a capital offense makes a proper demand for trial, he must be tried within the term of the demand or by the end of the next two terms, providing that at all three terms there are juries impaneled and qualified to try him. If he is not brought to trial within the time required, ‘. . .he shall be absolutely discharged and acquitted of the offense charged in the indictment. . . .’” Cleary v. State, 258 Ga. 203, 204 (366 SE2d 677).

Decided December 3, 1991

Reconsideration denied December 19, 1991

Brownlow & Schaefer, Ira B. Brownlow, Jr., for appellant.

Robert E. Wilson, District Attorney, Gregroy J. Giornelli, Assistant District Attorney, for appellee.

In the case sub judice, defendant argues that the State was required to bring him to trial by the end of the term following his demand for trial because he was indicted for noncapital offenses. More specifically, defendant argues that armed robbery is not a capital offense because death may no longer be imposed as a punishment for armed robbery. This contention is without merit.

“A capital offense within the terms of [OCGA §§ 17-7-170 and 17-7-171] refers to offenses defined by statute as capital offenses, not necessarily offenses for which the state could or actually does seek the death penalty. Cf. Orvis v. State, 237 Ga. 6 (226 SE2d 570) (1976); Hudson v. State, 157 Ga. App. 71 (276 SE2d 122) (1981).” Cleary v. State, 258 Ga. 203, 204, supra. OCGA § 16-8-41 (b) provides, in pertinent part, that “[a] person convicted of the offense of armed robbery shall be punished by death. . . .” Notwithstanding that the death penalty can no longer be imposed, this punishment statute places the offense of armed robbery within the definition of a capital offense and the State was not required to try defendant on the armed robbery charges by the end of the next term after defendant’s demand for trial. Accordingly, the trial court did not err in denying defendant’s motion for discharge and acquittal pursuant to OCGA § 17-7-170.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

       The terms of court for the superior court of DeKalb County are as follows: “First Monday in January, March, May, July, September, and November.” OCGA § 15-6-3 (37).


author: Cooper, Judge.

text:
    A90A2291.
    BROWN v. THE STATE.
    (414 SE2d 505)
   Cooper, Judge.

While conducting an arson investigation, an officer of the Upson County Sheriff’s Department spotted a van which matched the description of a vehicle sought in connection with a series of arson fires. The van was parked on a county road, and appellant was seated in the van talking with firemen and a state trooper. The officer instructed a deputy to have the van pull over on the side of the road. Appellant obliged the deputy, drove off the roadway and got out of the vehicle. The officer detected a strong odor of alcohol about appellant’s body; appellant’s speech was loud, and his eyes had a glazed appearance. An alco-sensor test was administered at the roadside, and appellant was arrested for driving under the influence. Appellant was taken to the sheriff’s department to be tested on an intoximeter; however, because the machine was inoperative, he was taken to the Thomaston Police Department for testing. Appellant’s breath sample registered .20 grams percent alcohol on the intoximeter. Appellant was convicted of driving under the influence of alcohol in probate court and brings this appeal from the adjudication of guilt by the superior court pursuant to OCGA § 40-13-28.

1. Appellant contends that the trial court erred in overruling his motion to dismiss and plea in bar because OCGA § 40-6-391 (b) fails to fully and fairly inform the accused of the nature and cause of the accusation against him in violation of the Sixth Amendment and the due process clause of the United States Constitution. This issue has been decided adversely to appellant’s argument by the Georgia Supreme Court in Steele v. State, 260 Ga. 835, 836 (400 SE2d 1) (1991).

2. Appellant enumerates as error the trial court’s failure to quash the accusation on the ground that it was not a uniform traffic citation approved for use by the Commissioner of the Department of Public Safety. Appellant contends the citation was defective because it was not identical to Department of Public Safety Form DPS-32 and it omitted the class of license of the accused, a space for “commercial vehicle information” and a notice that “[p]ursuant to Georgia Code [17]-6-11 if a driver’s license is surrendered in lieu of cash, a copy of the citation shall serve as a temporary driver’s license . . .” as required by the Department of Public Safety Rule 570-19-.01. “Inasmuch as there is no suggestion that the appellant was misled or prejudiced in his ability to present a defense because of these alleged deficiencies in the citation [and the citation indicates on its face that it was ‘AUTHORIZED AND APPROVED PURSUANT TO CODE 40-13-1 D.P.S. Reg. 570.19’], we hold that the trial court did not err in overruling the motion to quash the accusation. [Cit.]” Harris v. State, 199 Ga. App. 457, 458 (2) (405 SE2d 501) (1991).

3. Appellant also contends the breathalyzer test results should have been excluded because the evidence did not demonstrate that the test was conducted in a scientifically reliable manner. This contention was expressly rejected by our Supreme Court in Lattarulo v. State, 261 Ga. 124 (3) (401 SE2d 516) (1991). The court held that “Intoximeter 3000 machine test results are based on accepted scientific theory or ‘rest upon the laws of nature’; and, when the statutory requirements for admissibility are met, the results may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test.” Id. at 127.

Appellant also maintains that the results of the breathalyzer test should have been excluded because the evidence did not establish that the test was conducted in accordance with the methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation in several respects. Appellant argues that the evidence did not establish that the design of the Intoximeter 3000, used to test appellant, was approved by the Division of Forensic Sciences pursuant to OCGA § 40-6-392 and that the operator was familiar with the inner workings of the machine. The Intoximeter 3000 was specifically approved by the Director of Forensic Sciences as indicated by Georgia Bureau of Investigation Rule 92-3-.06 (5), which provides, “Breath tests other than the original screening may be conducted on a . . . Intoximeter Breathanalyzer Model 3000 (3000). The Director of the Division of Forensic Sciences will approve the design of any other type of breath analyzer used in the State, not already specifically approved under this Rule.” (Emphasis supplied.) The evidence established that an Intoximeter 3000 was used; therefore, no further proof of approval of the machine’s design was necessary, nor was it necessary that the operator “have an expert’s knowledge of the underlying scientific principles governing the functioning of the machine.” Dotson v. State, 179 Ga. App. 233, 234 (2) (345 SE2d 871) (1986).

Appellant also contends that because the operator’s testimony established that the “20 minute rule” was not observed before he underwent the breathalyzer test, the test results should have been excluded. The operator testified that it is customary to allow the passage of 20 minutes after the violation before administering a breathalyzer test to allow for the evaporation of mouth alcohol. However, the testimony reveals that although the operator did not personally observe appellant for 20 minutes prior to administering the test, he proceeded with the test after having been assured by the arresting officer that the officer had observed appellant for over 20 minutes prior to the test. Furthermore, we find no merit in appellant’s contention that the test results should have been excluded because the citation indicated that the arrest occurred on December 3, 1989, while the test was administered on December 5, 1989, and therefore not within three hours of his driving pursuant to OCGA § 40-6-391 (a) (4). The testimony of the arresting officer and the operator amply demonstrated that the arrest occurred on December 5, 1989 and that the test was administered within the three-hour period.

Decided December 3, 1991

Reconsideration denied December 19, 1991

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

4. Finally, appellant enumerates as error the trial court’s denial of his motion for a directed verdict of acquittal. The evidence, considered in the light most favorable to the judgment of the trial court sitting as trier of fact, was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). There was no error in the denial of appellant’s motion for directed verdict.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Pope, Judge. Birdsong, Presiding Judge,

text:
    A91A0805.
    U3S CORPORATION OF AMERICA v. PARKER et al.
    (414 SE2d 513)
   Pope, Judge.

U3S Corporation of America d/b/a Must Software International (“Must”) purchased a computer software product line known as Nomad from D&B Computing Services, Inc. (“D&B”). Subsequently, Must hired former D&B employees Doris Bihm and Joe Oliver to serve as professional services consultants to its customers, but did not hire former D&B employee Larry Parker. Parker established Diversified Business Systems, Inc. (“Diversified”) and Bihm and Oliver, while still employed by Must, each invested $10,000 to become shareholders of Diversified. First Bihm and then Oliver left Must to work for Diversified. Diversified provides professional consulting services to clients which use Nomad software. Must claims that by engaging in these services, Bihm and Oliver have breached the terms of their employment contract with Must and Parker has breached the terms of his employment contract with D&B which, Must claims, it is entitled to enforce.

Must filed suit against Diversified and the three individuals seeking certain injunctive relief and damages for breach of the terms and conditions of employment contracts, tortious interference with contractual relationships, conspiracy to commit tortious interference with contractual relationships, breach of the duty of loyalty and good faith and, against Parker and Diversified, aiding and abetting Bihm and Oliver to breach their duty of loyalty and good faith. The defendants counterclaimed for damages for abusive litigation. The trial court granted defendants’ motion for summary judgment on those three counts of the complaint alleging breach of terms and conditions of employment contracts and the two counts alleging conspiracy to commit tortious interference with contractual relationships. The trial court denied Must’s motion for partial summary judgment on the counterclaim. Must appeals these rulings. The trial court also granted defendants’ motion for summary judgment on the two counts of the complaint in which Must sought injunctive relief, but Must does not appeal these rulings.

1. Preliminarily, we note that all parties to this appeal have relied heavily in their briefs on hearsay evidence. In arriving at the disposition of this appeal we have not considered inadmissible hearsay evidence but have relied, primarily, upon the terms of the various written contracts which were properly before the trial court on the motions for summary judgment.

2. Must first argues the trial court erred in granting summary judgment to defendants on those counts of the complaint alleging breach of the terms and conditions of each individual’s employment contract (Counts I, II and V).

(a) In regard to defendant Parker, Must claims Parker’s activities with Diversified constitute a breach of the terms and conditions of his previous employment with D&B. The threshold issue is whether Must is entitled to enforce D&B’s rights under Parker’s employment contract.

Must purchased the rights to the Nomad software line pursuant to an asset purchase agreement. The assignment to Must of rights under the terms and conditions of D&B’s employment contracts was made by a separate document to the asset purchase agreement. D&B’s employment agreement rights were assigned to Must only “to the extent that such employment agreements relate to the System and the NOMAD2 Business (as defined in the Asset Purchase Agreement ...)... .” This proviso merely served to exclude from the assignment the right to enforce those employment agreement rights which are unrelated to that part of the business which was sold to Must. The purchase agreement documents clearly show, however, that Must was assigned the right to enforce any violation of an employment agreement that related in any way to that part of the business sold to Must. Since D&B no longer holds any interest in the System and Nomad2 business, to construe the agreement otherwise, as set forth in the dissenting opinion, would lead to the absurd result of leaving no party with the authority to protect the System and Nomad2 business from nondisclosure and non-solicitation violations.

Schedule A of the asset purchase agreement describes the assets assigned under “The System” as “[a]ll of the assets, properties, rights, businesses, operations and goodwill of Seller related to the System. . . .” (Emphasis supplied.) Pursuant to the terms of the asset purchase agreement, the obligations assumed by the purchaser include: “Customer Contracts. All obligations of Seller under any license, agreement, contract . . . including Consulting or Professional Services Agreements. ...” Thus, contrary to the conclusion of the dissenting opinion, the asset purchase agreement assigned to Must far more that just the product development or marketing aspect of D&B’s business. It is obvious from the asset purchase agreement that D&B assigned to Must all interest in that part of its business known as the System, including professional services to customers. Thus, the assignment of rights under the terms and conditions of employment agreements included D&B’s employment contracts with professional service employees whose work related to the System, such as defendant Parker. To the extent that the terms and conditions of Parker’s employment contract are enforceable, Must was assigned the right to enforce them.

The pertinent part of the terms and conditions of Parker’s employment contract states: “Employee will regard and preserve as confidential all information pertaining to the Company’s business that may be obtained by him from any source as a result of his employment hereunder and he will not, without written authority from the Company, disclose to any persons, or use for his own benefit, during his employment or for a period of two (2) years thereafter, any such information relating to methods, processes, apparatus, programs or other materials conceived, designed, created or heretofore or hereafter used or developed by the Company or any of its customers, customers’ lists, pricing and pricing methods, agents, suppliers or contractors, all such information being considered to relate to trade secrets and to be confidential information of the Company; he will not solicit or in any manner encourage employees of the Company to leave the employ of the Company. . . . This agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, beneficiaries, successors and assigns.”

The trial court denied Parker’s motion for summary judgment on those two counts of the complaint alleging tortious interference with Must’s contractual relationships with Bihm and Oliver, expressly finding that issues of fact remain concerning Parker’s liability for hiring Bihm and Oliver away from Must. One of the issues we must consider, then, is whether the alleged interference with the employment contracts of Bihm and Oliver is also a breach of the non-solicitation covenant of Parker’s employment contract, as set forth above.

Parker argues the non-solicitation covenant is unenforceable because it is vague and ambiguous and not limited in time. We do not believe that the phrase “or in any manner encourage employees of the Company to leave” is so vague or ambiguous as to be unenforceable. For example, in Lane Co. v. Taylor, 174 Ga. App. 356, 360 (2b) (330 SE2d 112) (1985), this court held enforceable a non-solicitation clause which included the phrase “or directly or indirectly cause any . . . employee to leave his employment in order to work for another.” Id. We also reject Parker’s argument that the two-year limitation contained in the nondisclosure clause of his employment contract does not apply to the non-solicitation clause. Although the non-solicitation clause is set apart from the nondisclosure clause by a semi-colon, the time limitation is contained in the same sentence as the non-solicitation clause and, pursuant to the rules of construction, the time limitation applies to each restriction in the sentence, even those appearing after the semi-colon. See OCGA § 13-2-2 (6); Bridges v. Home Guano Co., 33 Ga. App. 305 (125 SE 872) (1924). Thus, the trial court erred in granting summary judgment to defendant Parker on Counts I and II of the complaint alleging breach of the non-solicitation clause of his employment contract.

The trial court also granted summary judgment to Parker on Count V of the complaint alleging breach of the nondisclosure clause of his employment contract. Parker argues the nondisclosure clause is overly broad and therefore unenforceable. In particular, Parker argues that the record shows Must’s customer lists are a matter of public record and since the disclosure of customer lists is one of the items of information he was prohibited from disclosing, then pursuant to the holding in Nasco, Inc. v. Gimbert, 239 Ga. 675 (238 SE2d 368) (1977), the nondisclosure clause is therefore unenforceable. In Nasco, the nondisclosure clause applied to “ ‘any information concerning any matters affecting or relating to the business of employer’ including but not limited to [certain specific information].” Id. at 676 (3). The Supreme Court noted that “[t]here is a great deal of public information concerning many matters which would affect or relate to the business of the employer; e.g., interest rates or minimum wage legislation.” Id. Consequently, the court held the nondisclosure provision was overly broad and unenforceable. In this case, however, while the nondisclosure provision includes at least one item of information, which is available to the public, the duty not to disclose is limited to “information . . . that may be obtained by him from any source as a result of his employment. . . .” Thus, the nondisclosure clause does not prohibit the disclosure of information obtained through public knowledge and is not overly broad.

Despite the public policy disfavoring agreements in restraint of trade, “ ‘ [i]f, considered with reference to the situation, business, and objects of the parties, and in light of all the surrounding circumstances . . . the restraint contracted for appears to have been for a just and honest purpose, for the protection of the legitimate interests of the party in whose favor it is imposed, reasonable as between them, and not specially injurious to the public, the restraint will be held valid.’ [Cits.]” Durham v. Stand-By Labor of Ga., 230 Ga. 558, 561-562 (2) (198 SE2d 145) (1973). Here, the nondisclosure clause is reasonably related to protecting the interests of the owner of a computer software system against competitive use by a former employee of that special knowledge he would have naturally obtained as a result of his employment. “[I]t is clear that the items listed are confidential business information which are protectable as such, and that this provision does not prohibit the [defendant’s] using the skills and dexterity which he has acquired [during his employment with plaintiff’s predecessor in interest] with any new employer. . . .” Nunn v. Orkin Exterminating Co., 256 Ga. 558, 559 (2) (350 SE2d 425) (1986). Consequently, we hold the trial court erred in granting summary judgment to Parker on Must’s claim that Parker breached the nondisclosure clause of his employment contract.

(b) In regard to defendants Bihm and Oliver, Must claims their activities with Diversified constitute a breach of the terms and conditions of employment contained in the identical written contracts they both signed when they accepted employment employment with Must. The contracts contained a clause prohibiting the employee from disclosing confidential information to third parties without the employer’s written consent. The nondisclosure clause contained no time limitation and is therefore unenforceable. See Howard Schultz & Assoc. v. Broniec, 239 Ga. 181 (4) (236 SE2d 265) (1977); Thomas v. Best Mfg. Corp., 234 Ga. 787 (1) (218 SE2d 68) (1975). Thus, the trial court did not err in granting summary judgment to defendants Bihm and Oliver on the claim in Count V of the complaint that their activities violated the nondisclosure clause of their employment contracts.

The non-solicitation covenant in the two employment contracts, however, was limited to two years. It cannot be said that such a period is excessive, considering the nature of the business activity involved. See Lane Co. v. Taylor, supra at (2). The covenant provided that the employee would not, for two years after termination, “solicit or otherwise encourage others to leave” their employment with Must. (Emphasis supplied.) For the reasons set forth in Division 2a, we reject defendants’ argument that the phrase “or otherwise encourage others to leave” is so vague as to make the covenant unenforceable. The reasonably limited non-solicitation covenant was separate from the unenforceable nondisclosure covenant and may be separately enforced. See Kem Mfg. Corp. v. Sant, 182 Ga. App. 135 (3) (355 SE2d 437) (1987); Lane Co. v. Taylor, supra.

Plaintiff claims Bihm violated the non-solicitation clause of her employment contract by encouraging Oliver to leave his job with Must and join her and Parker at Diversified. The trial court denied defendant Bihm’s motion for summary judgment on the count of the complaint alleging she joined with Parker and Diversified to interfere tortiously with Must’s contractual relationship with Oliver, expressly finding that issues of fact remain concerning Bihm’s liability for hiring Oliver away from Must. By the same token, issues of fact remain concerning whether Bihm’s alleged interference with Must’s contractual relationship with Oliver is also a breach of the non-solicitation covenant of her employment contract. Consequently, the trial court erred in granting summary to defendant Bihm on Must’s claim in Count II of the complaint for breach of the non-solicitation clause of her employment contract.

3. Must next argues the trial court erred in granting summary judgment to defendants on those counts of the complaint which allege defendants Parker and Diversified conspired to interfere tortiously with Bihm’s employment contract and that Parker, Bihm and Diversified conspired to interfere with Oliver’s employment contract (Counts VII and IX). According to Must, these rulings are inconsistent with the trial court’s denial of summary judgment on Count VIII of the complaint alleging Parker and Diversified are jointly liable for tortious interference with Must’s contractual relationship with Bihm and the denial of summary judgment on that count of the complaint alleging Parker, Bihm and Diversified are jointly liable for tortious interference with Must’s contractual relationship with Oliver.

“ ‘A civil conspiracy has been defined as a combination between two or more persons to do some unlawful act which is a tort or else to do some lawful act by methods which constitute a tort. The averment of a conspiracy in the declaration does not ordinarily change the nature of the action nor add to its legal force or effect. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done wrongfully.’ (Citations and punctuation omitted.) Sofate of America v. Brown, 171 Ga. App. 39, 40 (318 SE2d 771) (1984).” Kem Mfg. Corp. v. Sant, supra at 143 (7c). The trial court properly granted summary judgment on the conspiracy counts of Must’s complaint because these counts are merely restatements of the claims set forth in the joint tortfeasor counts described above.

4. Finally, Must asserts the trial court erred in denying its motion for summary judgment on defendants’ counterclaim for damages for abusive litigation. The trial court granted summary judgment to defendants on seven of the eleven counts of the complaint but expressly found that four of the counts raised issues to be tried. As set forth in this opinion, the trial court erred in granting summary judgment to defendants on three of those five counts which were addressed in this appeal. Only the grant of summary judgment on those two counts which sought injunctive relief was unchallenged by Must on appeal. Consequently, issues remain to be tried in seven of the eleven counts set forth in the complaint (Count I, alleging Parker is liable for breach of contract for soliciting and encouraging Bihm to leave Must; Count II, alleging Parker and Bihm are liable for breach of contract for soliciting and encouraging Oliver to leave Must; Count V, alleging Parker is liable for breach of the nondisclosure clause of his employment contract, although summary judgment was properly granted to Bihm and Oliver on this count; Count VI, alleging Parker and Diversified are jointly liable for tortious interference with Bihm’s employment contract; Count VIII, alleging Parker, Bihm and Diversified are jointly liable for tortious interference with Oliver’s employment contract; Count X, alleging Bihm and Oliver breached their fiduciary duty to plaintiff; and Count XI, alleging Parker and Diversified aided and abetted the other two defendants’ breach of fiduciary duty). In the opinion of this court, the allegations of the complaint, even the two counts seeking injunctive relief, “can in no sense be categorized as being completely devoid of any justifiable issue of law or fact.” Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 796 (4) (359 SE2d 920) (1987). “Because the area of non-compete clauses is one in which similar clauses beget dissimilar results and each case must be considered on its own particular facts,” this court held, even in a case in which the non-compete clause on which the suit was based was unenforceable, that summary judgment was properly granted to plaintiff on defendant’s claim for abusive litigation. Colquitt v. Network Rental, 195 Ga. App. 244, 246 (2a) (393 SE2d 28) (1990). We hold that no issue exists concerning whether plaintiff’s complaint was “substantially frivolous, substantially groundless, or substantially vexatious.” Yost v. Torok, 256 Ga. 92, 96 (344 SE2d 414) (1986). Thus, the trial court erred in denying Must’s motion for summary judgment on defendants’ counterclaim for abusive litigation.

Judgment affirmed in part and reversed in part.

Sognier, C. J., Cooper, Andrews, JJ., and Judge Arnold Shulman concur. Beasley, J., concurs in judgment only. McMurray, P. J., Birdsong, P. J., and Carley, P. J., concur in part and dissent in part.

Birdsong, Presiding Judge,

concurring in part and dissenting in part.

1. To the extent of, and for the reasons hereinafter discussed, I dissent to the majority opinion.

2.1 concur with Division 1 of the majority opinion, but it must be stated for clarity that, as evidentiary rules regarding the admissibility of evidence are applicable in a summary judgment proceeding, hearsay evidence is without probative value and cannot be considered unless it is a part of the res gestae. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2a) (397 SE2d 576). After discounting inadmissible hearsay, I tend to view the viable evidence of record in a somewhat different light than my colleagues in the majority.

3. Appellees asserted, and I agree, that Must Software has no rights to appellee Parker’s terms and conditions of employment contract. Incidentally, appellee’s position was supported by the expert opinion contained in the affidavit of the general counsel and secretary of D&B who so informed the corporate counsel of Must. This opinion is indicative of the intent of D&B, as to the scope of the assignment agreement, when it was entered into with Must. The majority concludes, inter alia, that although D&B’s employment agreement rights were assigned to Must only “ ‘to the extent that such employment agreements relate to the System and the NOMAD2 Business (as defined in the Asset Purchase Agreement This proviso merely served to exclude from the assignment the right to enforce those employment agreement rights which are unrelated to that part of the business which was sold to Must.” (Emphasis supplied.) This interpretation is over-restrictive and, in effect, serves to revise and expand the scope of the assignment as evidenced by the clear words thereof. Nor do I agree that “[t]he purchase agreement documents clearly show . . . that Must was assigned the right to enforce any violation of an employment agreement that related in any way to that part of the business sold by Must.” In my view, the majority has tortured the plain language of the assignment agreement to arrive at this interpretation. “Courts are not at liberty to revise contracts while professing to construe them.” Stuckey v. Kahn, 140 Ga. App. 602, 606 (1) (231 SE2d 565).

Examination of the applicable assignment provisions and the terms of the relevant documents incorporated therein reveals that Must intentionally was assigned by D&B only very limited rights to appellee Parker’s terms and conditions of employment contract, as alleged by appellees. The record does not reflect that Must was at a bargaining disadvantage when entering the assignment agreement with D&B. If D&B and Must in fact intended to assign to Must the full right of enforcement of all the terms and conditions of employment contracts entered between D&B and its current and former employees, it would have been an easy matter to so provide in the assignment agreement in clear and unambiguous terms.

The assignment agreement on its face provides that D&B retained its right as the employer under such employment agreements with respect to matters other than those pertaining to the System and the Nomad2 Business. And review of the referenced Asset Purchase Agreement and the exhibit provisions therein incorporated likewise reveals that the terms “System” and “Nomad2 Business” referred to in the assignment document substantially limit the scope of Must’s assignment of rights under Parker’s terms and conditions of employment contract. Thus, it appears clearly and unequivocally from these documents that Must has been assigned enforceable rights under Parker’s terms and conditions of employment contract only to the extent that the provisions thereof directly relate to the development of the Nomad2 computer software systems and its various related systems, or to the marketing of licenses pertaining thereto and to the Nomad2 Business. “Where the terms of a written contract are clear and unambiguous [as here], the court will look to the contract alone to find the intention of the parties” (Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659)); and, it is the duty of the courts to construe and enforce contracts as made, and not to make them for the parties (Sasser & Co. v. Griffin, 133 Ga. App. 83, 86 (2a) (210 SE2d 34)).

The majority justifies its departure from these sound rules by asserting that to construe the agreement, according to its plain language as I have done, leads to an absurd result. I find nothing absurd about this result; it is far more likely that the restrictive language was inserted intentionally in the assignment agreement by D&B to protect people like Parker who were not going to be hired by Must. In this regard, I note that Must did not rely upon the old D&B conditions of employment as to those D&B employees whom it elected to hire; rather it required them to enter into new conditions of employment contracts with Must. I also find informative, the opinion voiced by the general counsel and secretary of D&B and the totality of the circumstances which the record reveals about Parker’s release from employment by D&B to facilitate his non-hiring by Must. Under all these circumstances, I find it entirely possible and not at all absurd that D&B did not want to vest Must with the power to preclude its former loyal employees from earning a livelihood by utilizing their knowledge and skills acquired with D&B for as long as those skills would remain viable in the fast changing world of software technology. However, informed speculation notwithstanding, the motive of D&B for its conduct bears no relevancy to the legal issue of contract interpretation. In final analysis, an unambiguous contract states what it means and means what it states, no more and no less. On the face of this assignment contract, Must was not vested with the right to enforce the terms and conditions of employment contract signed between D&B and Parker.

As, in my opinion, Must was not entitled to enforce Parker’s conditions of employment agreement with D&B, the trial court did not err in granting summary judgment to defendant Parker on Counts I, II and V of the complaint.

4. I agree that the nondisclosure covenant in Bihm’s and Oliver’s conditions of employment contract is unenforceable. These nondisclosure covenants expressly attempt to prevent the nondisclosure of “know-how” and thus prohibit, without time limitation, Bihm and Oliver from using with any new employer their subjective knowledge (such as skill and dexterity) which they acquired at both D&B and Must. Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 188 (4) (236 SE2d 265); Prudential Ins. Co. &c. v. Baum, 629 FSupp. 466 (3, 4) (N.D. Ga.); Wesley-Jessen v. Armento, 519 FSupp. 1352, 1362 (23) (N.D. Ga.); compare Thomas v. Best Mfg. Corp., 234 Ga. 787 (1, 2) (218 SE2d 68).

I also agree that the non-solicitation provisions contained in the terms and conditions of employment contracts of Bihm and Oliver are not overly broad and vague; these provisions are enforceable. Nevertheless, I believe the trial court did not err in granting summary judgment in favor of appellee Bihm as to claims for violation of the non-solicitation for hiring provisions of her contract. After identifying hearsay evidence and applying the rule discussed in Division 2 above, I believe there exists, at best, only a shadowy semblance of an issue of Bihm’s violation of any non-solicitation for hiring provisions contained in the terms and conditions of her employment contract. Summary judgment law does not require a movant/defendant to establish that no issue of fact whatsoever remains, but only that no genuine issue of material fact remains; and while some shadowy semblance of an issue may exist, regarding these averments, the case may nevertheless be decided as a matter of law where, as here, the evidence shows clearly and palpably the jury could reasonably draw but one conclusion. Strickland v. DeKalb Hosp. Auth., supra at 65 (2a); compare Dozier v. Wallace, 169 Ga. App. 126, 129 (4 b) (311 SE2d 839).

The majority concludes the trial court erred in granting summary judgment to defendant Bihm on Must’s claim in Count II of the complaint for breach of the non-solicitation clause of her employment contract. As above discussed, I believe the trial court did not err in granting summary judgment to Bihm on Must’s claim in Count II in view of the posture of the record, particularly after all hearsay evidence is identified and accorded no probative value as required by law.

5. I agree with appellees that the trial court did not err in denying appellant’s motion for partial summary judgment with respect to appellees/defendants’ counterclaim for common-law abusive litigation. The counterclaim averred inter alia that appellant has engaged in abusive litigation by virtue of asserting in its complaint certain claims that lack substantial justification and that were asserted for purposes of harassment.

The redefined elements of the common-law claim of abusive litigation are: “Any party who shall assert a claim, defense, or other position with respect to which there exists such a complete absence of any justiciable issue of law or fact that it reasonably could not be believed that a court would accept the asserted claim, defense, or other position; or any party who shall bring or defend an action, or any part thereof, that lacks substantial justification, or is interposed for delay or harassment; or any party who unnecessarily expands the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures, shall be liable in tort to an opposing party who suffers damage thereby. The term ‘lacks substantial justification’ shall mean substantially frivolous, substantially groundless, or substantially vexatious.” (Emphasis supplied.) Yost v. Torok, 256 Ga. 92, 96 (344 SE2d 414). Applying this definition and in view of my conclusions as to the correctness of the trial court’s rulings, I conclude the trial court did not err in denying appellant’s motion for partial summary judgment, thereby allowing appellees’ counterclaim to go to a jury for resolution. See Remler v. Shiver, 200 Ga. App. 391 (408 SE2d 139).

Additionally, while the gist of the conspiracy actions in this case may inextricably be based upon the same joint tortfeasor conduct asserted in other counts and, in effect, a restatement of such counts, this does not mean that the averment of conspiracy counts is merely the legal equivalent of averring the underlying joint tortfeasor counts for all purposes. Claims of conspiracy include a gravamen not found in the mere claim of the underlying tortious conduct to which they pertain, and it enables the party asserting the claim to introduce certain types of evidence in proof of the averred conspiracy that might not otherwise be relevant to prove the underlying tortious conduct itself. The conspiracy claims in this case were substantially groundless and substantially frivolous; moreover, considering the stigma inherently attached to a tortious “conspiracy,” by nature of the gravamen of the claim, when such a claim is, as in this case, without substantial basis it is also substantially vexatious.

Further, as the majority concedes, the trial court did not err in granting summary judgment to Bihm and Oliver as to Count V, breach of the nondisclosure clause, and this certainly would create a jury issue as to the matter of counterclaim. The pattern of numerous, broad, related averments asserted in this case, coupled with the obvious lack of substantial justification for averring some of them, standing alone would give rise to a genuine issue of material fact as to the counterclaim. See generally Remler, supra.

The trial court has broad power to control its proceedings so as to ensure that the interests of justice are served, and even “in a close case, a trial court may deny summary judgment and anticipate a second opportunity to consider its ruling on a subsequent motion for directed verdict.” Porter v. Felker, 261 Ga. 421, 422 (2) (405 SE2d 31). The trial court in my view properly denied Must’s motion for summary judgment as to the abusive litigation counterclaim.

Decided December 5, 1991

Reconsideration denied December 20, 1991

Vincent, Chorey, Taylor & Feil, Celeste McCollough, for appellant.

Bovis, Kyle & Burch, Steven J. Kyle, for appellees.

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