text:
    A97A0697.
    A97A0698.
    A97A0699.
    DAVIS v. THE STATE. DAVIS v. THE STATE. RONALD DAVIS LOGGING COMPANY, INC. v. THE STATE.
    (484 SE2d 284)
   Eldridge, Judge.

Out of Upson County comes the case sub judice involving appellant Ronald Davis; his son, appellant Danny Davis; and their company, appellant Ronald Davis Logging Company, Inc. Appellants were charged in a single indictment with numerous offenses of theft by taking and conspiracy to commit theft by taking through various alleged schemes to defraud landowners and lumber companies of timber and monies. Appellants were tried together during a four-week jury trial which resulted in five volumes of record; twelve volumes of exhibits; twenty-five volumes of transcript; acquittal on fifteen counts of the indictment; the conviction of Ronald Davis on two counts of conspiracy to commit theft by taking under Counts 7 and 8 and one count of theft by taking under Count 21; the conviction of Danny Davis on two counts of conspiracy to commit theft by taking under Counts 7 and 8; the conviction of the company on two counts of theft by taking under Counts 15 and 19 and one count of conspiracy under Count 7; and similar concurrent first-offender probationary sentences for each appellant with fines imposed thereon.

All appeal, raising the same eight enumerations of error, with the addition of a sufficiency of the evidence challenge on behalf of appellant Ronald Davis pursuant to his conviction for theft by taking and an additional sufficiency of the evidence challenge as to Counts 15 and 19 raised by appellant Ronald Davis Logging. We affirm.

Case No. A97A0697

1. Appellant Ronald Davis asserts that the evidence was insufficient to support his conviction for theft by taking under Count 21 of the indictment.

The evidence as it relates to Count 21 demonstrates that Ronald Davis signed a timber lease with victim Keadle Lumber Enterprises (“Keadle”) in which appellant claimed title to the timber on “[approximately 100 acres in Land Lot 185 of the 1st Land District . . . [bjounded on the West by Fincherville Road,” otherwise referred to as the Davis-Cole tract, and purported to deed that timber to Keadle in this conveyance. Appellant accepted and cashed a check from Keadle in the amount of $21,500 for the rights under the lease to the timber on the Davis-Cole tract. The state’s evidence showed that there was no 100-acre tract in Land Lot 185, and appellant had never been conveyed title to any timber in that land lot fitting the legal description in the deed. Evidence was introduced which raised the inference that the timber which was credited as coming from the Davis-Cole tract pursuant to the timber lease was, in fact, cut from tracts already owned by Keadle. Thus, a rational trier of fact could have found appellant guilty beyond a reasonable doubt of the offense for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Appellant contends that any discrepancies in the timber lease he signed with Keadle were the result of a typographical error in the lease description as to where the 100-acre tract was located. However, the jury heard and rejected this contention. The task of this Court is not to go behind the jury’s verdict and re-weigh the evidence, but to determine if sufficient evidence was presented to support the verdict. Sheats v. State, 210 Ga. App. 622 (436 SE2d 796) (1993). It was.

Case No. A97A0699

2. Appellant Ronald Davis Logging challenges the sufficiency of the evidence to support its conviction on Counts 15 and 19 for the offenses of theft by taking in that appellant aided and abetted others in the theft of lumber from Keadle by cutting timber off of the Grant-Ham tract, to which Keadle owned the timber rights, and representing that this wood was removed from the Adams-Wright tract under Count 15 and the KAP-Alfred Leppert tract under Count 19; appellant then sold Keadle’s own wood back to Keadle.

A corporation may be prosecuted for an act or omission constituting a crime if an agent of the corporation performs the conduct which is an element of the crime while acting within the scope of his office or employment and in behalf of the corporation; or if the commission of the crime is authorized, requested, commanded, performed, or recklessly tolerated by the board of directors or by a managerial official acting within the scope of his employment on behalf of the corporation. OCGA § 16-2-22 (a) (1), (2).

With regard to these counts, the evidence demonstrated that appellants Ronald Davis and Danny Davis, owners of Ronald Davis Logging, knew from which tract they were cutting while in the performance of their business and kept a logbook in which they specifically recorded the tracts from which they had cut wood. It was the loggers’ responsibility to tell the scale operator from which tract a load had been cut. Appellants, while engaging in the business, knew that wood they had cut from Keadle’s Grant-Ham tract was wrongly credited to Adams-Wright and KAP-Alfred Leppert upon delivery by Ronald Davis Logging to Keadle; appellants knew that the miscrediting of the wood was done in order to cover timber shortfalls in cuts on both Adams-Wright and KAP-Alfred Leppert. Appellants accepted payment in the form of pulpwood from Joe Garrard to cover the difference in hauling miles between the tract from which they really cut the wood, Grant-Ham, and the tracts to which they credited the wood, Adams-Wright and KAP-Alfred Leppert. As such, we find the evidence was sufficient for a rational trier of fact to have found appellant Ronald Davis Logging guilty of theft by taking under Counts 15 and 19 based upon the conduct of its principals while acting on behalf of the appellant corporation. Jackson v. Virginia, supra; OCGA § 16-2-22 (a) (1), (2).

Case Nos. A97A0697; A97A0698; A97A0699

3. In the next enumeration of error, appellants contend that the state failed to prove that venue was properly in Upson County as to Counts 7 and 8 of the indictment, conspiracy to commit theft by taking. These counts alleged that appellants harvested timber that did not belong to them from two different tracts, one in Monroe County and one in Butts County. Appellants allegedly delivered the wood to a timber mill in Bibb County and then delivered the original load tickets and resulting weight tickets to the purchaser’s office in Thomas-ton, Upson County, for payment on the load.

“Venue is a question to be decided by the jury and its decision will not be set aside as long as there is any evidence to support it.” (Citations and punctuation omitted.) Jones v. State, 245 Ga. 592, 596 (2) (266 SE2d 201) (1980). Venue may be proved by either direct or circumstantial evidence, and “[i]t is well recognized in this state that slight evidence is sufficient to establish venue, where there is no conflicting evidence.” (Citations and punctuation omitted.) Id.; Levitt v. State, 201 Ga. App. 63 (410 SE2d 170) (1991). ‘Venue in a conspiracy prosecution is properly laid either in the jurisdiction where the conspiracy was formed or in any jurisdiction wherein a conspirator committed an overt act in furtherance of the conspiracy.” Brown v. State, 177 Ga. App. 284, 287 (2) (339 SE2d 332) (1985).

A review of the record in relation to Counts 7 and 8 demonstrates that before payment could be had from the purchaser, Mead Coated Board (“Mead”), the load tickets and resulting weight tickets had to be delivered to Mead’s Upson County office. While appellants testified that they did not know how the load tickets referenced in Counts 7 and 8 arrived at the Mead office, appellant Ronald Davis admitted that he “picked up the load tickets most of the time” from his loggers. The bookkeeper for Ronald Davis Logging testified that appellants handled the load and weight tickets; that appellants’ loggers would turn their tickets in to appellants, and “they [appellants] figure up those loads on Friday morning.” Further testimony established that delivery of load and weight tickets to Mead was often made by logging contractors, like appellants, who would “bring them by my [Upson County] office on Friday morning. . . . He would bring me his hand full of tickets and give them to me.” This circumstantial evidence was sufficient to raise the inference that appellants committed the alleged overt act of delivering the load tickets to the Mead office in Upson County in furtherance of the conspiracy as set out in Counts 7 and 8 of the indictment, and for the jury to so find, thereby establishing venue in Upson County. Brown, supra at 287.

4. Appellants next challenge the sufficiency of the evidence as to Counts 7 and 8. With regard to Count 7, appellants contend that Joe Garrard, an agent for Keadle, gave appellants the Keadle-owned wood that is the subject of Count 7; some of the wood was allegedly given in exchange for work authorized by Garrard and some in exchange for monies paid by check to Garrard by appellants. With regard to Count 8, appellants contend that Jeff Grant, the owner of the tract referenced in Count 8, gave the timber to appellants if they would “clean it up out there.” Thus, appellants do not deny that they took the wood, but seek to justify the taking. Accordingly, the evidence amply demonstrates that appellants knew they were cutting privately owned wood from land that did not belong to them and accepting payment on the loads. The jury in the case sub judice heard the appellants’ explanations for these activities and declined to accept them, aided perhaps by the total lack of testimonial or documentary evidence in support of appellants’ contentions concerning the largess of both Garrard and Grant, as well as the dearth of can-celled checks evincing any payment for the lumber specifically referenced in either Count 7 or 8. This Court has no authority to disregard the jury’s credibility findings with regard to appellants’ explanations. Grier v. State, 218 Ga. App. 637, 638 (463 SE2d 130) (1995). The evidence was sufficient to support the verdicts. Jackson v. Virginia, supra.

5. Next, appellants assert a claim of prosecutorial misconduct. In support thereof, appellants contend that (1) the prosecution supplied a witness list of over two hundred names, most of whom were not called, although the ones that were likely to be called by the state had been checked off by the prosecutor; (2) the prosecution called a witness whose name was not on the list; (3) the prosecution furnished numerous documents to the defense just prior to trial and failed to furnish documents relating to an ongoing GBI investigation; (4) the prosecutor failed to furnish several documents until two weeks into trial; and (5) the prosecution misled the trial court into believing that an exhibit had been admitted into evidence which had not. Our review of each of the alleged errors enumerated by appellants, in relation to those portions of the transcript cited therefor, fails to demonstrate prosecutorial misconduct. Appellants’ claims (1) and (3) above were argued in support of a motion for continuance based on alleged discovery violations, the denial of which motion is not cited as error herein. Nor is error claimed as to the trial court’s determination that the state substantially complied with the court’s order that all documents relevant to appellants’ guilt or innocence should be turned over to the defense. Appellants have not provided a rationale for us to disregard the trial court’s finding of substantial compliance, and the record supports the trial court’s conclusion. Accordingly, appellants’ claim of prosecutorial misconduct based on an alleged failure to turn over documents fails.

Further, appellants sought only to interview the witness referenced in claim (2) above, which request was granted; in addition, appellants made no objection to the state’s delivery of the documents referenced in claim (4) above. “The contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct.” (Citations and punctuation omitted.) Williams v. State, 217 Ga. App. 636, 638 (4) (458 SE2d 671) (1995).

Finally, the exhibit about which appellants complain in claim (5) above was introduced as a court’s exhibit upon appellants’ insistence, without reference to any “misrepresentation” on the part of the prosecution. Moreover, the comment cited to this Court by appellants as a basis for their assertion that the prosecutor “misled” the trial court regarding the exhibit’s evidentiary status was actually a comment made by GBI agent Olinger, not the prosecutor.

A claim of prosecutorial misconduct is a serious charge, and “once appellant raises a charge of prosecutorial misconduct, he ‘has the duty to prove it by the record and by legal authority.’ [Cits.]” Id. Appellants have failed to demonstrate any manifest intent on the part of the prosecutor to engage in misconduct so as to subvert the judicial process. See Lobdell v. State, 256 Ga. 769, 774-775 (353 SE2d 799) (1987). Additionally, appellants have failed to cite any legal authority in support of their specific claims. Wellons v. State, 266 Ga. 77 (463 ,SE2d 868) (1995); Williams, 217 Ga. App. at 638. Accordingly, we find this enumeration of error to be without merit.

6. Appellants’ next enumeration of error alleges a violation of the rule of sequestration; appellants contend that agent Roy Olinger was permitted to remain in the courtroom and was recalled by the state numerous times, thereby permitting the agent to “reform” his testimony and to comment on the testimony of other witnesses.

Agent Olinger was an investigative officer with the GBI who had been assigned to this case since its 1989 beginnings, which investigation spanned several years and involved numerous defendants, counties, and law enforcement agencies. Prior to trial, the state moved to permit Olinger to remain in the courtroom; the prosecutor stated in his place that Olinger’s presence and testimony were essential for the orderly presentation of the evidence in the case sub judice. In addition, the prosecutor explained that because of the complex nature of the case, as well as the number of exhibits, witnesses, and counts, the better course during the state’s presentation of evidence would be to break the indictment down into related counts and present all evidence as to the first set of related counts before moving on to the next set; for this reason, agent Olinger was to be recalled several times for testimony in which he would describe the investigation as it pertained to the particular counts being addressed at that time. The trial court agreed with this procedure.

We conclude that “a proper foundation for an exception to the sequestration rule was made, and we find no abuse of discretion by the trial judge in allowing the investigating officer to remain in the court room and in refusing to direct that he be called as the state’s first witness.” (Citation and punctuation omitted.) Martin v. State, 151 Ga. App. 9, 11 (3) (258 SE2d 711) (1979).

Further, appellant has failed to show that the trial court abused its discretion in permitting the agent to be recalled in order to facilitate the orderly presentation of evidence. Dampier v. State, 245 Ga. 427 (265 SE2d 565) (1980); Massey v. State, 220 Ga. 883 (142 SE2d 832) (1965); Ratliff v. State, 150 Ga. App. 695 (258 SE2d 324) (1979). Those cited portions of the agent’s testimony which appellants characterize as having been “reformed” or as comments upon the testimony of other witnesses were either: (1) the result of questioning by appellants; (2) comments on what witnesses had said during the investigation, not the trial; or (3) fail to demonstrate any prejudice to appellants so as to illustrate an abuse of the trial court’s discretion. Id. at 695-696. There was no error.

7. Appellants contend that the trial court erred in permitting the jury to consider court’s Exhibit 3 as this exhibit allegedly contained information which was irrelevant and immaterial, as well as information that was not properly in evidence. The record shows that court’s Exhibit 3 related solely to Counts 16 and 17 of the indictment, upon which counts appellants were found not guilty. Pretermitting error, if any, harm must also be shown affirmatively on the record in order to authorize reversal on appeal. Robinson v. State, 212 Ga. App. 613, 616 (442 SE2d 901) (1994). Appellant has failed to make the requisite showings, and this enumeration of error is without merit.

8. Appellants next contend that reversible error occurred when, during the course of the trial, two jurors looked up the meaning of “racketeering” at the Upson County library; appellants contend that “[d]efendants[’] counsel did not learn of the misconduct until after trial and sentencing.”

Appellants did not learn of this conduct until after trial and sentencing because when the trial court determined that the two jurors should be voir dired for obviously discussing the case while in the jury box, appellants declined to be present at the voir dire and stated in no uncertain terms that “[w]e don’t have any complaints with the jury and we don’t want to be present in any interview. We think it is inappropriate to interview them.” The trial court then interviewed the jurors alone; discovered the enumerated transgression; and determined, after questioning, that no prejudice to the appellants was evident. The two jurors were allowed to remain on the panel. “One cannot complain of trial procedure utilized by the trial court which his own trial tactics or conduct procured or aided in causing.” Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309) (1992); Wilburn v. State, 199 Ga. App. 667, 668 (2) (405 SE2d 889) (1991). There was no error.

9. Appellants next contend that the foreman of the jury “misled” them when informing the trial court that one juror, Willie Garner, had made up his mind concerning the guilt or innocence of the appellants prior to the beginning of jury deliberation; appellants contend that because of this misleading information, Garner was improperly removed from the panel. In support of this contention, appellants submitted at the motion for new trial an affidavit from Garner in order to demonstrate that he had not, in fact, made up his mind prior to deliberations.

The affidavit of Willie Garner is inadmissible as it serves only to impact on the credibility of the jury foreman and is immaterial since it provides no substantive evidence reflective of the guilt or innocence of appellants so as to produce a different verdict. We will not consider it. Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980); Davis v. State, 221 Ga. App. 375, 377 (471 SE2d 307) (1996).

Moreover, appellants specifically requested that Garner be removed from the jury panel and that an alternate juror take his place; this, without requesting to voir dire Garner. By way of explanation for this professed lapse in judgment, appellants repeatedly assert that they “had endured a five and one-half week trial and simply wanted the trial over.” However, such assertion neither moves this Court which recognizes that judge, jury, et al. “endured” the lengthy proceedings, nor relieves appellants from the requirement to object to a procedure in order to later claim reversible error thereon. Williams, 205 Ga. App. at 446. This enumeration of error is waived.

10. Appellants’ last contention challenges the admissibility of the prior sworn testimony of appellant Ronald Davis given at the trial of another defendant on related charges, which testimony was read into evidence in the case sub judice. Appellants contend that the introduction of such evidence violated Ronald Davis’ right against self-incrimination “pursuant to the Fifth Amendment of the United States Constitution, the Constitution of the State of Georgia, and OCGA §§ 24-9-28 and 24-9-29.”

At trial appellant Ronald Davis objected to the testimony about which he now complains because: (1) the state had subpoenaed appellant to the prior trial, although they did not call him; and (2) “there has been no showing that it’s [prior testimony] relevant to this trial.” Appellant did not claim, as he does herein, a violation of a constitutional or statutory right. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” Brantley v. State, 177 Ga. App. 13, 14 (1) (338 SE2d 694) (1985); see also Shirley v. State, 254 Ga. 723 (334 SE2d 154) (1985).

Moreover, even assuming for the sake of argument that these contentions are properly before us, the record shows that appellant Ronald Davis’ prior testimony was given voluntarily, under oath, on behalf of the defense, with his defense attorney present. The specific testimony which was read from the transcript of the earlier trial was directly related to the case sub judice and was admissible as an express or implied admission against interest. Toledo v. State, 216 Ga. App. 480, 482 (455 SE2d 595) (1995). Such voluntary testimony does not infringe upon appellant’s Fifth Amendment right against self-incrimination.

With regard to appellant’s contentions concerning OCGA §§ 24-9-28 and 24-9-29, neither a court-ordered immunity granted pursuant to OCGA § 24-9-28 nor the testimonial privilege granted to veterinarians under OCGA § 24-9-29 is a relevant consideration in the case sub judice. Thus, these Code sections aid appellant’s argument not at all. There was no error.

Judgment affirmed.

Birdsong, P. J, concurs.- Ruffin, J., concurs in judgment only.

Decided March 6,1997

Reconsideration denied March 18,1997

Ham, Jenkins, Wilson & Wangerin, Phillip B. Ham, Kevin A. Wangerin, for appellants.

Michael J. Bowers, Attorney General, Michael E. Hobbs, Deputy Attorney General, Joseph L. Chambers, Patrick D. Deering, for appellee.

       This case is one of several related cases that have come before this Court over the last few years as a result of an investigation of alleged timber fraud in Upson and surrounding counties. See, e.g., Grant v. State, 220 Ga. App. 604 (469 SE2d 826) (1996); Raines v. State, 219 Ga. App. 893 (467 SE2d 217) (1996); Fletcher v. State, 213 Ga. App. 401 (445 SE2d 279) (1994); State v. Adams, 209 Ga. App. 141 (433 SE2d 355) (1993).

       The trial court dismissed one count prior to trial and dismissed two additional counts pursuant to motion after trial had commenced.

       Joe Garrard was indicted separately for his alleged participation in the theft of Keadle’s timber and was alleged as an unindicted party to the crime under Counts 15 and 19 in the instant case.

       Appellants Danny Davis and Ronald Davis Logging do not have standing to claim a violation of Ronald Davis’ constitutional right against self-incrimination under the Fifth Amendment.


source: Caselaw Access Project

author: Judge Harold R. Banke. Andrews, Chief Judge,

license: Public Domain

text:
    A96A1743.
    SIMMONS v. DEPARTMENT OF TRANSPORTATION.
    (484 SE2d 332)
   Judge Harold R. Banke.

In this condemnation case, Bruce Simmons contends that the Georgia Department of Transportation (“DOT”) failed to provide him with just and fair compensation for the DOT’s partial taking of his property condemned for a highway project. Following a mistrial, the trial court granted judgment in favor of the DOT Simmons appeals.

Simmons purchased 4.0 acres of land in Banks County in 1969. In 1980, Simmons began a'trucking business, Kayton Express, on his land, eventually operating seven tractor trailers for hauling frozen poultry. Simmons used about two acres for the trucking business and the remaining acreage for a residence and a buffer from the business. Simmons made numerous improvements including installation of a doublewide mobile home as an office, two separate septic systems, 10,000 feet of gravel and multiple loads of dirt for roads, and two other buildings for storage, maintenance and repairs. The portion of the land the DOT condemned included most of Simmons’ improvements: the business office, septic tanks, outbuildings, and graded areas.

When Simmons began operating his trucking business in 1980, Banks County (“County”) had no requirement that he obtain a business license. In 1981, the County enacted a business license resolution requiring all persons, firms, and corporations maintaining a place of business in any area of Banks County to procure a county business license. Simmons testified that he was unaware of the license requirement and applied for and obtained a license the day after he learned he needed one, in July 1994. The County also issued Simmons a business license for 1995. It is undisputed that at the time that the DOT declared a partial taking against 1.7 acres of the 4.0 tract on March 30, 1995, Simmons had a County business license for his trucking operation.

About 11 years after Simmons had been operating his trucking business, the County enacted its first zoning ordinance which zoned Simmons’ land as residential/agricultural. Section 404.1 of the newly enacted zoning ordinance contained a “grandfather” clause permitting existing nonconforming uses provided that the “use was at that time, in full compliance with all applicable federal, state and local laws, rules and regulations, and for which use all required federal, state or local permits or authorizations were then, and continue to be, in existence. . . .”

Simmons testified that he always paid the County ad valorem taxes and registered his trucks with the County tax office. It is undisputed, however, that Simmons was not in compliance with the County’s business license requirement on the date that the zoning ordinance became effective.

After the DOT condemned part of his land, Simmons unsuccessfully petitioned to have the remainder of his property rezoned for commercial purposes so that he could continue to operate his business. The County Commission denied Simmons’ petition to rezone the remaining acreage and, in fact, a County official ordered him to move the business off his property. Two of the three commissioners testified that they voted to deny Simmons’ rezoning application because the remaining tract was not large enough for the trucking operation and the buffer protecting neighboring residences had been eliminated.

Notwithstanding the dissent’s inference to the contrary, the commissioners’ refusal to rezone Simmons’ property did not occur until after the DOT had condemned the acreage closest to the highway, forcing Simmons to destroy the buffer and relocate his business in a smaller area nearer to his neighbors. In relocating, Simmons created a new use on the portion of his property not previously used for the trucking business. Simmons could not assert a vested property right to a new proposed use. See Rainwater v. Coweta County Bd. of Zoning Appeals, 123 Ga. App. 467, 468 (181 SE2d 540) (1971).

Simmons testified that he contacted local real estate agents and had been unable to find suitable and affordable property for his business in Banks or Franklin counties. He and his wife testified that the DOT had been unsuccessful in locating any comparable tracts in the County and that the three alternative tracts which the DOT located elsewhere did not appear feasible for a trucking operation or at $60,000 plus per acre were not affordable. Simmons’ expert appraiser testified that Simmons’ damages arising from the condemnation were $289,776. At the close of Simmons’ case, the DOT moved to strike the expert’s appraisal contending that it was premised on the mistaken belief that Simmons had a legal, nonconforming use. The DOT contended that because Simmons did not have a business license at the time the Banks County Commission enacted the zoning ordinance, Simmons never had a legal, nonconforming use and his business was not “grandfathered” under the zoning ordinance. The DOT further argued that the legal effect of the lack of “grandfathering” was to restrict the fair market value of Simmons’ property to only residential/agricultural use, for which the DOT offered Simmons $31,400. After the jury deadlocked, the trial court granted the DOT’s motion for judgment notwithstanding the mistrial. Held:

Simmons’ sole enumeration of error is that the trial court erred in granting the DOT’s motion for judgment notwithstanding the mistrial because he had a legal, nonconforming use of his property for which he was not fairly and adequately compensated. We agree.

The enforcement of its zoning ordinance is an obligation of the County and the County had the right to take whatever action it deemed appropriate within the law. Moreover, “the violation of a provision of a regulatory ordinance does not necessarily destroy the lawfulness of the basic use where compliance with the regulations can be had on demand and where such compliance actually follows. . . .” (Footnote omitted.) Corpus Juris Secundum, Zoning & Land Planning, § 164, Unlawful Use. Inasmuch as the County issued Simmons a license, he was operating his business with the County’s knowledge and approval. In fact, County Commission Chairman Patterson, whose office was in charge of business licenses, testified that even before 1994, he was aware that Simmons was operating a business on the site. Chairman Patterson’s signature appears on both the 1994 and 1995 business licenses. Consistent with due process, the County had the power to set appropriate standards and to balance public and private interests in determining whether to require rezoning, grant a variance, or grandfather Simmons’ use. OCGA § 36-66-2. Similarly, it is the County’s right to determine whether to issue a business license without granting a variance or rezoning the land. OCGA § 36-66-5 (b).

The DOT failed to show that it had standing to contest the County’s decisions made in prior years to issue the business license to Simmons and to permit Simmons’ continued use of the property without a variance or rezoning. See Sneakers of Cobb County v. Cobb County, 265 Ga. 410 (2) (455 SE2d 834) (1995).

Moreover, the authority the DOT offers is readily distinguishable. The linchpin of the DOT’s argument is Troutman v. Aiken, 213 Ga. 55, 56 (96 SE2d 585) (1957). But the business at issue at the time of rezoning in Troutman had no business permit and was an illegal nonconforming use, operation of a drag strip without a special permit, a misdemeanor offense.

Similarly, the DOT’s reliance on Plaza Liquor Store v. City of Atlanta, 220 Ga. 615, 618 (2) (140 SE2d 868) (1965) is misplaced. The business at issue was an unlawful retail liquor store whose license had been revoked by the State Revenue Commissioner about six months before the adoption of the zoning ordinance. That business could not legally make sales to the public and was not a lawful business when the zoning became effective. Id. at 619. See Ralston Purina Co. v. Acrey, 220 Ga. 788 (142 SE2d 66) (1965) (nonconforming use begun after enactment of zoning ordinance not protected).

Here, the testimony of the County commissioners makes clear that the County had no objection to the operation of Simmons’ business on the 4.0 acres and that no problem arose until Simmons-attempted to operate on fewer acres and attempted a new use on the remaining land. The DOT presented no evidence that the County issued the business license by mistake or that the nature of Simmons’ business was inherently illegal. Compare Corey Outdoor Advertising v. Bd. of Zoning Adjustment &c., 254 Ga. 221, 223 (3) (327 SE2d 178) (1985) (permit mistakenly issued not valid where billboard’s placement violated city ordinance); see Plaza Liquor Store, 220 Ga. 618 (2); Troutman, 213 Ga. at 56.

Simmons expended substantial time, effort and money on developing his property for his trucking business. See, e.g., Craig v. City of Lilburn, 226 Ga. 679 (177 SE2d 75) (1970); Rainwater, 123 Ga. App. at 469. At the time of the DOT’s taking, Simmons had a valid business license, not issued by mistake. Compare Corey, 254 Ga. at 223 (3). Had the DOT not acquired part of his land, the evidence shows that Simmons would likely still be operating a trucking business in a legal, nonconforming manner. See Fayette County v. Seagraves, 245 Ga. 196 (264 SE2d 13) (1980).

The dissent fails to offer any authority requiring a different result. Notwithstanding the dissent’s contention to the contrary, City of Hampton v. Briscoe, 207 Ga. App. 501 (428 SE2d 411) (1993) is readily distinguishable. In that case, the Hampton city clerk, who had the sole authority to issue business licenses, denied Briscoe’s request for a license. Briscoe then circumvented the city clerk by seeking and obtaining a business license from the city council who lacked the authority to grant such licenses. Id. at 503. Indisputably, unlike here, Briscoe never had a validly issued license. Further, many of the cases relied upon by the dissent are at best only remotely related to business licensing or rezoning. See, e.g., Recycle & Recover v. Ga. Bd. of Natural Resources, 266 Ga. 253 (466 SE2d 197) (1996); City of Atlanta v. Black, 265 Ga. 425 (457 SE2d 551) (1995); Hayes v. Howell, 251 Ga. 580 (308 SE2d 170) (1983).

Simmons was constitutionally entitled to “just and adequate” compensation for the value of his property on the date of taking including consequential damages to his business and expenses for relocation. OCGA § 22-1-5; Bowers v. Fulton County, 221 Ga. 731, 739 (2) (146 SE2d 884) (1966). Simmons did not receive just compensation because his land was not being used for agricultural/residential purposes and his compensation was erroneously calculated in that manner. Because the trucking business at issue was a legal, nonconforming use for which Simmons was not adequately compensated, we reverse. OCGA § 22-2-63; Bowers, 221 Ga. at 738 (2); Old South Bottle Shop v. Dept. ofTransp., 175 Ga. App. 295 (1) (333 SE2d 127) (1985).

Judgment reversed and remanded.

McMurray, P. J., Birdsong, P. J., Beasley, Johnson, Blackburn, Smith and Ruffin, JJ, concur. Andrews, C. J., dissents.

Andrews, Chief Judge,

dissenting.

Because I believe the superior court was correct in concluding, as argued by the Department of Transportation, that the use of Simmons’ property for a trucking business was a nonconforming usé under the zoning ordinance, thereby restricting his recovery for condemnation of a portion of that property to fair market value based upon residential/agricultural use, I must respectfully dissent.

The primary issue in a condemnation case is “[t]he fair market value of the property or interest taken or other evidence of just and adequate compensation.” OCGA § 32-3-16. The factors to be used in making this evaluation are not restricted to the agricultural or productive qualities of the land, “but inquiry shall be made as to all other legitimate purposes to which the land could be appropriated.” (Emphasis supplied.) OCGA § 22-2-109 (a).

The relevant point of inquiry is the status of Simmons’ property in 1991 when the zoning ordinance was enacted because, if the trucking business was not grandfathered in under the nonconforming use provision, then, as a matter of law, such use could not be considered in determining “legitimate” uses of the property. See Dept. ofTransp. v. Brooks, 153 Ga. App. 386, 389 (2) (265 SE2d 610) (1980). As acknowledged by the majority, Simmons had not obtained a business license from the county at the time the zoning ordinance was enacted in 1991 and did not obtain one until 1994. In 1994, the use of his property for the business covered by the license was in violation of the zoning ordinance, and the zoning board refused to change the zoning of his property after the initiation of the condemnation proceeding.

In order to be grandfathered in under the zoning ordinance, and therefore have a compensable right in that business use, the nonconforming use must have been, “at that time, in full compliance with all applicable federal, state and local laws, rules and regulations, and for which use all required federal, state or local permits or authorizations were then, and continue to be, in existence.” (Emphasis supplied.)

“The term Vested rights’ means ‘ “interests which it is proper for (the) state to recognize and protect and of which (the) individual cannot be deprived arbitrarily without injustice.” (Cits.)’ Hayes v. Howell, [251 Ga. 580,] 584 (2) (b) [(308 SE2d 170) (1983)].” Recycle & Recover v. Ga. Bd. of Nat. Resources, 266 Ga. 253, 254 (2) (466 SE2d 197) (1996). To say that Simmons has a vested right in the use of his property as a trucking business solely because he had a business license (for a business which violated the zoning ordinance) for less than a year before the filing of the Declaration of Taking overlooks the many cases dealing with -the issue of government estoppel, although that appears to be the theory relied upon by the majority for its conclusion.

The issuance by the county of a business license “in violation of existing zoning or regulatory laws is considered an ultra vires act and vests no one’s rights. Corey Outdoor Advertising v. Bd. of Zoning, &c. of Atlanta, 254 Ga. 221 (3) (327 SE2d 178) (1985).” Jackson v. Delk, 257 Ga. 541, 543 (4) (a) (361 SE2d 370) (1987). See Plaza Liquor Store v. City of Atlanta, 220 Ga. 615, 618 (2) (140 SE2d 868) (1965). The public may not be estopped by acts of an officer done in the exercise of an unconferred power. City of Atlanta v. Black, 265 Ga. 425, 426 (457 SE2d 551) (1995).

This situation is factually similar to City of Hampton v. Briscoe, 207 Ga. App. 501 (428 SE2d 411) (1993). There, Briscoe sought inverse condemnation against the city contending that, because he was issued a license for an auction business although that business was in violation of applicable zoning, he had been denied just compensation for the loss of the business. We concluded that Briscoe could not recover if he had no “vested right” in the first place.

While a building permit may create a vested right in the existing zoning ordinances, “ ‘a business license is typically not a device for ensuring compliance with zoning ordinances. “Although the general aim of both zoning and licensing regulations is the promotion of the general welfare, each is independent of the other and seeks to accomplish its purpose by a different means. The fact that a zoning ordinance permits a use in a particular district does not authorize the use there without a license. On the other hand, a license or permit does not authorize a use in violation of zoning laws. In other words, a license or permit does not relieve one from complying with a zoning ordinance. . . .” ’ ” Id. at 503.

Further, to say, as does the majority, that the DOT lacks “standing” to argue the validity of the zoning action overlooks the obvious. First, the DOT is not attempting to contest zoning action, as in Sneakers of Cobb County v. Cobb County, 265 Ga. 410 (2) (455 SE2d 834) (1995), where the property owner had been dispossessed of the property and therefore had no standing to contest the zoning. Second, the sole issue here is the worth of the property or vested right therein, to which zoning is relevant and admissible.

Decided March 18,1997

David C. Jones, Jr., for appellant.

Michael J. Bowers, Attorney General, McClure, Ramsay & Dickerson, Luther H. Beck, Jr., for appellee.

Therefore, I would affirm the trial court’s judgment since Simmons could show no valid nonconforming use to entitle him to compensation for his improperly operated business.

       Initially, license fees varied from $10 to $25 per year depending on a business’s number of full time employees.


author: Andrews, Chief Judge.

text:
    A96A1931.
    UNION PLANTERS NATIONAL BANK v. CROOK et al.
    (484 SE2d 327)
   Andrews, Chief Judge.

Union Planters National Bank (now known as Union Planters Bank of Chattanooga and referred to hereinafter as Union Bank) appeals from the judgment entered on the jury’s verdict in favor of defendants Mr. and Mrs. Crook on Union Bank’s suit against them for breach of contract and warranty pursuant to OCGA § 11-3-413.

1. We address first Union Bank’s third enumeration which is that the trial court erred in not granting its motion for directed verdict, “in that no credible evidence was proffered or elicited at trial which remotely indicated any conduct rising to the level of ‘fraud in the factum’ or any other real defense” to which a holder in due course would be subject pursuant to OCGA § 11-3-305. (Emphasis supplied.)

Construing the evidence so as to support the jury verdict, Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267) (1991), it was that these claims were premised on three checks written by Mr. Crook on Thursday, December 9, 1993. The checks, drawn on Independent Bank in Alabama, totalled $43,300 and were given by Crook to Southway Equipment Sales, Inc. (Southway) that night in connection with Crook’s attempt to lease or purchase a 1991 Freightliner tractor from Southway. Southway was a dealer in used trucks and generally kept from 70 to 100 on its lot. Union Bank had loaned Southway over $300,000 pursuant to notes secured by real estate, inventory, and accounts receivable. Southway’s business checking account was also at Union Bank.

As stated by Crook, and not disputed by Union Bank, Crook “gave them [Southway] the checks to hold the truck as a security deposit, until we could meet with Cargill [a third party leasing agent/ financier] and get the financing arranged for the truck, and then make arrangements for the finance company to pay for the truck, and I’d get our checks back. . . . That was the understanding that we had when I left the dealership that night.” On checks numbered 1341 and 1342, which totalled $42,000, the following notation appeared on the “Memo” line: “91 Fit. Trk, to be held for fina[n]ce app[roval].” On check 1344, for $1,300, was the notation “Paint job on 91 Fit. refundable for finance.”

Despite this understanding, the three checks were deposited by Southway into Southway’s account at Union Bank on Friday, December 10, along with other checks in a deposit totalling $99,300. This was the 94th deposit of that day for the teller processing it and would have occurred before 2:00 p.m. when the date stamp changed. As a routine matter, Union Bank had arranged with Southway that, although the deposited funds were still uncollected, if Southway made a deposit before 10:00 a.m. on any day when their account was in overdraft status, the bank would allow Southway to draw against the funds deposited that day. The account was in overdraft status on that Friday, and immediate credit was issued by Union Bank to Southway’s account for the $99,300, against which Southway issued more than that amount in checks.

Having arranged for Cargill to finance the tractor’s purchase, Crook called Southway on Friday, December 10, to so advise them. He was told that the checks had been “accidentally deposited” and he should stop payment on them. His wife then placed the stop payment order with Independent Bank. On Monday, December 13,1993, Southway filed for bankruptcy and Union Bank was “inundated” with stop payment orders on checks which had been deposited into Southway’s account. By December 16, Union Bank had received notice from the Federal Reserve that the Crooks’ checks had not been honored. Union Bank physically received the returned checks on Friday, December 17.

On December 16, Crook signed a promissory note for $38,715.80 with Cargill for the truck and these funds were wired to Southway. Crook picked the tractor up that day at Southway and was told that his checks would be returned to him by mail. Crook was unaware of Southway’s bankruptcy until Union Bank filed the instant lawsuit on May 13, 1994.'

During Southway’s bankruptcy, a dispute arose between secured creditors of Southway including Fleet Enterprises, Inc. and Union Bank. Fleet had financed and consigned tractors and trailers to Southway in which it claimed a security interest. Union Bank had accepted notes and security agreements also pledging Southway’s assets, including the inventory on Southway’s lot, as collateral. At this point, Southway was indebted to Union Bank, solely through loans for which security had been pledged, for over $320,000. Also, because of the provision of credit to Southway for deposits consisting of uncollected funds, Union Bank claimed additional debt of “over $400,000” in Southway’s overdraft status, represented by the stop payment orders, including the Crooks’.

After Union Bank and other creditors had filed for relief from the bankruptcy stay on December 20, 1993, by order of January 6, 1994, Southway’s petition to declare bankruptcy was dismissed. That order stated that “all assets of the Debtor shall be distributed to those creditors claiming a security interest in Debtor’s assets.”

Union Bank and Fleet entered into an agreement on February 11, 1994, pursuant to which Union Bank assigned to Fleet all its rights in the pledged collateral in return for payment by Fleet of $700,000. That same day, Union Bank signed its assignment to Fleet as “true and lawful holder of the following described collateral debts, Promissory Notes, Georgia Deeds to Secure Debt and other instruments from Southway Equipment Sales, Inc. (‘Borrower’), described as follows: ... (9) [UCC Financing Statement] evidencing Assignor’s security interest in all of Borrower’s machinery, . . . and inventory . . . , together with all accounts, contract rights, and accounts receiv able then owned or thereafter in existence and all proceeds of the same. . . .” (Emphasis supplied.) Union Bank represented the value of these assigned assets to be $810,700.43. Both in its complaint and in its evidence at trial, Union Bank contended that the checks issued by Crook to Southway were “contracts.”

Union Bank moved for summary judgment before trial, raising, among others, the same ground contained in the motion for directed verdict. The trial court partially granted that motion on January 31, 1996, to the extent that it concluded Union Bank was a holder in due course, OCGA § 11-3-303 (1), and that it had given value for the checks. That order further denied complete summary judgment, concluding that there remained for resolution by the jury “the issue of a possible payment of the check and the specter of a double recovery by virtue of the Plaintiff’s agreement dismissing Southway’s Chapter 11 Bankruptcy proceeding in which $810,700.43 of assets of Southway were released to secured creditors and subsequently transferred by Plaintiff to Fleet Enterprises, Inc. . . . The liability of any party is discharged to the extent of his payment or satisfaction to the holder. OCGA § 11-3-603.”

The pretrial order was entered by the court on January 23, 1996, prior to the order partially granting and partially denying Union Bank’s summary judgment motion. There, the issues stated for determination were whether the defense of fraud in factum existed and whether Union Bank recovered any and all damages arising from its claims against defendants by the recovery against Southway pursuant to the bankruptcy proceedings.

This order, as implicitly amended by the order partially granting and denying Union Bank’s motion for summary judgment, controls the issues actually tried before the trial court and the context for the denial of Union Bank’s motion for directed verdict. Rockdale Body Shop v. Thompson, 222 Ga. App. 821, 822 (2) (476 SE2d 22) (1996); see Williams v. Safeway Ins. Co., 223 Ga. App. 93, 94 (476 SE2d 850) (1996).

Pursuant to OCGA § 11-3-305 (2), the holder in due course takes the instrument subject to the defenses of “(b) . . . illegality of the transaction, as renders the obligation of the party a nullity; and (c) Such misrepresentation as has induced the party to sign the instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms.”

We need not decide whether, as a matter of law, it can be said that the transaction here involved only “fraud in factum” under subsection (c) as to which Union Bank was entitled to a directed verdict which was improperly denied. There was evidence presented from which the jury could conclude that the acceptance and deposit of the checks by Southway under these circumstances were fraudulent as to Crook under subsection (c) as theft by deception and a violation of the RICO statute. OCGA §§ 16-8-3; 16-9-20 (a); 16-14-3; Citizens Nat. Bank v. Brazil, 141 Ga. App. 388 (1) (233 SE2d 482) (1977); Middle Ga. Livestock Sales v. Commercial Bank &c. Co., 123 Ga. App. 733, 734 (182 SE2d 533) (1971). Therefore, denial of Union Bank’s motion for directed verdict on the fraud in factum ground, even if error, does not require reversal because there was sufficient evidence of illegality in the transaction to go to the jury, as well as the issue of satisfaction of the debt.

A ruling right for any reason will be affirmed. Wm. Goldberg & Co. v. Cohen, 219 Ga. App. 628, 636 (5) (466 SE2d 872) (1995).

2. Enumerations 1 and 2 allege error in the trial court’s denial of Union Bank’s motions in limine and are considered together.

The first motion sought to limit evidence solely to whether Crook’s debt to Union Bank was satisfied and the second sought to exclude evidence regarding Crook’s financing with Cargill.

“A motion in limine is a pretrial method of determining the admissibility of evidence, as a party may secure a pretrial ruling on the admissibility of evidence or a ruling prohibiting any reference to certain evidence until its admissibility can be assessed in the context of the trial as it unfolds. [Cif.] By its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. [Cit.] In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.” Andrews v. Wilbanks, 265 Ga. 555, 556 (458 SE2d 817) (1995).

Admission of evidence is within the sound discretion of the trial court and this court will not interfere with that discretion absent abuse. Martin v. Williams, 215 Ga. App. 649, 651 (3) (451 SE2d 822) (1994). We find none here, since the Cargill financing was part of the res gestae of the Boghs’ and Southway’s illegal acts as to Crook and the payment of the debt was, according to Union Bank’s argument, the sole issue to be decided.

3. Enumerations 4, 5, 6, and 7 allege error in allowing, respectively, “irrelevant evidence as to Southway Equipment Sales, Inc.’s financial condition[,] . . . irrelevant testimony as to Union Planters’ accounting for any loss it suffered, whether it had insurance for such losses, or whether a verdict in its favor would constitute a ‘double recovery!,]’. . . hearsay and irrelevant testimony as to conversations [the Crooks] had with Southway and documents Crook signed with Cargill . . . [and] introduction of Cargill’s hearsay and irrelevant documents.” They are considered together.

Decided March 18,1997

Shumaker & Thompson, Everett L. Hixson, Jr., for appellant.

Sawyer & Sawyer, Joy H. Sawyer, for appellees.

To the extent that enumeration 5 contains more than one alleged error, in violation of OCGA § 5-6-40, we exercise our discretion to consider the one dealing with the “irrelevancy’ objection. Toledo v. State, 216 Ga. App. 480, 482 (4) (455 SE2d 595) (1995).

To object that evidence is not relevant is no valid ground for objection. Blue Cross of Ga./Columbus v. Whatley, 180 Ga. App. 93, 94 (3) (348 SE2d 459) (1986); Hudson v. Miller, 142 Ga. App. 331 (1) (235 SE2d 773) (1977).

Additionally, evidence of Union Bank’s financial relationship with Southway and how their banking relationship was conducted was first introduced by Union Bank and it will not now be heard to complain of this evidence.

Union Bank also first introduced the issue of whether the bank was “out of pocket the money that the checks represented by virtue of the Federal Reserve process.”

The hearsay objections made to Crook’s conversations with the Boghs were properly overruled by the court’s conclusion that the evidence was not being admitted to prove the truth of what was said, only to explain Crook’s actions in response to them or as part of the res gestae. OCGA §§ 24-3-1; 24-3-2; 24-3-3.

There was no error.

4. Finally, Union Bank complains of the court’s giving of “Appellees’ Charge No. 9 (R., p. 422),” on fraud in factum. The record reference given is to Union Bank’s Requests to Charge, and, in fact, Charge No. 9 contained therein is the charge requested by Union Bank and given by the court in its charge to the jury, not once, but twice. Error, if any, in the charge was self-induced and cannot be complained of on appeal. Levin v. State, 222 Ga. App. 123, 125 (3) (473 SE2d 582) (1996).

Judgment affirmed.

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

       OCGA § 11-3-305 was amended by Ga. Laws 1996, p. 1306 et seq., effective July 1, 1996. However, this case is not affected by these amendments and it is determined under the previous version of the statute, effective during the time of the transaction and trial of this case. Ga. Laws 1996, p. 1414; Henderson v. Dept. ofTransp., 267 Ga. 90, 91 (2) (475 SE2d 614) (1996); Dowdy v. Earthwise Restaurant Mgmt., 221 Ga. App. 220, 223 (1) (471 SE2d 42) (1996).

       The standard for review of denial of a motion for directed verdict requires Union Bank to show that there was no conflict in the evidence as to any material issue and “the evidence introduced, with all reasonable deductions therefrom,” demanded the verdict sought. OCGA § 9-11-50; Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983). Our review is pursuant to the any evidence standard and we do not consider the weight of the evidence. J. B. Hunt

        Transp. v. Bentley, 207 Ga. App. 250, 254 (2) (427 SE2d 499) (1992).

       Check number 1341 was in the amount of $38,000, number 1342 was $4,000, and number 1344 was for $1,300.

       Both Mr. and Mrs. Crook testified that they spoke with either Susan or Keith Bogh, the owners and operators of Southway, concerning the checks. Although Southway was made a party to this action, service could not be effected on it or the Boghs. Union Bank, however, does not dispute that this conversation occurred, only that it was hearsay and should have been excluded on that ground as discussed in Division 3, infra.

       Other consignors were involved in the dispute, but only to a minor extent and their interests do not affect the current matter.

       Roger Tudor, Executive Vice President of Union Bank, described the checks as “a contract, an agreement to pay, an obligation that Mr. Crook had made with Southway Equipment, thereby we being the holder in due course of that item.”


author: Smith, Judge.

text:
    A96A2306.
    SYSCO FOOD SERVICES OF ATLANTA, INC. v. CHUPP et al.
    (484 SE2d 323)
   Smith, Judge.

This appeal involves the construction of customer non-solicitation covenants executed by two former sales representatives for appellant Sysco Food Services and a non-competition and non-solicitation covenant executed by a former sales manager for Sysco. The trial court struck down all three agreements as overbroad and denied injunctive relief. Because the trial court’s construction of the agreements was incorrect, we reverse.

The facts relevant to our analysis are straightforward. Appellee Charles Don Chupp, a district sales manager and 13-year employee of Sysco, executed an employment contract with Sysco containing two agreements relevant here. The contract contains an “Agreement Not to Compete”: “Employee covenants and agrees that during employment by the company and for a period of one year after termination of such employment for any reason, employee will not, without prior written consent of the company, directly or indirectly within the territory, (a) for himself, (b) as a consultant, manager, supervisor, employee or owner of a competing business, or (c) as an independent contractor for a competing business, engage in any business in which employee provides services which are the same or substantially similar to employee’s duties for Sysco as described in this agreement and its incorporated exhibits.”

Chupp’s contract also contains an “Agreement Not To Solicit Customers”: “Employee covenants, and agrees that during his employment by the company and for a period of one (1) year following the termination of such employment for any reason, within the territory he will not, without the prior written consent of the company, either directly or indirectly, on his own behalf or in the service or on behalf of others, solicit or attempt to divert or appropriate to a competing business, any customer of the company having an office or place of business within the territory and to whom the company sold or provided any products [or] services and with whom the employee dealt on behalf of the company at any time during the 12 months immediately preceding termination of his employment hereunder. In no way does this paragraph purport to restrict the post-employment activities of employee outside the territory.” “Competing business” and “territory” are separately defined. An attached page on Sysco’s letterhead lists 11 north Georgia counties comprising “District ‘L’, Donny Chupp, District Manager.”

In January 1996, Chupp resigned his position at Sysco and took a similar management position, covering much of the same region of north Georgia, with Sysco’s competitor, Alliant Food Services, Inc. It appears undisputed that he immediately began soliciting Sysco customers.

Appellees Yearous and Phillips also executed employment agreements containing a non-solicitation covenant, but without a non-competition covenant. Phillips’s contract contains the same non-solicitation covenant executed by Chupp. Yearous’s contract contains language essentially the same as the non-solicitation covenant executed by Chupp and Phillips, but omitting any reference to “the territory.”

Shortly after Chupp’s resignation, Yearous and Phillips simultaneously resigned their positions and immediately joined Chupp at Alliant. Both immediately began soliciting many of their former Sysco customers. After Sysco complained in a letter to Alliant, Yearous and Phillips exchanged their accounts, so that Yearous called on Phillips’s former Sysco customers while Phillips called on Yearous’s former accounts. After Sysco lost a number of accounts to Chupp, Phillips, and Yearous, it filed this action seeking injunctive relief.

1. Unlike a contract in general restraint of trade, a restrictive covenant in an employment contract is considered only a partial restraint of trade and will be upheld if the restraint imposed is reasonable, founded upon valuable consideration, and reasonably necessary to protect the interest of the employer, so long as it does not unduly prejudice the public interest. The reasonability of a restrictive covenant is a question of law for the court, considering the nature and extent of the trade or business, the situation of the parties, and all other relevant circumstances. W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992). “A three-element test of duration, territorial coverage, and scope of activity has evolved as a lielpful tool’ in examining the reasonableness of the particular factual setting to which it is applied. [Cits.]” Id.

Applying these guidelines, we first address the scope of Chupp’s non-competition covenant. The trial court found that this covenant is properly limited in the scope of activities prohibited. We agree. See generally Mouyal, supra. It is also clear that a one-year time limitation after termination of employment is well within the duration permissible under Georgia law. See, e.g., Smith v. HBT, Inc., 213 Ga. App. 560, 563 (4) (445 SE2d 315) (1994) (five years); U3S Corp. v. Parker, 202 Ga. App. 374, 378 (2) (b) (414 SE2d 513) (1991) (two years).

The trial court further concluded, however, that the territorial coverage of the agreement is overbroad due to changes in Chupp’s management district between the time of execution of the non-competition covenant and his departure from Sysco. The original description of Chupp’s territory inadvertently omitted one Alabama county that should have been included. By the time Chupp left Sysco in January 1996, his territory had also changed to the extent that after July 1994 he was no longer working in two of the eleven listed Georgia counties and was sharing another Georgia county with a second manager. It is undisputed, however, that Chupp in fact worked in all 11 counties listed during his tenure with Sysco.

The trial court incorrectly concluded that Chupp’s non-competition covenant is overbroad. The goal of a non-competition covenant is to balance two competing rights: first, the employee’s right to earn a living and his ability to determine with certainty the prohibited territory; second, the employer’s interest in customer relationships created or furthered by its former employee on its behalf and its right to protect itself from the former employee’s possible unfair appropriation of contacts developed while working for the employer. Mouyal, supra, 262 Ga. at 466. Under this analysis, an employer is permitted to include in such a covenant the territory in which the employee has in fact performed work, thus protecting itself from the unfair appropriation of good will and information acquired in the course of that work. Id.; Howard Shultz & Assoc, v. Broniec, 239 Ga. 181, 183 (1) (236 SE2d 265) (1977). The fact that Chupp’s territory had not included two of the counties listed for approximately 18 months does not, of itself, render the agreement void for overbreadth.

As the covenant stands, its description of Chupp’s territory is more narrow than the territory in which Chupp actually worked for Sysco. The law does not require exact precision; it forbids unreasonably broad territorial coverage. The territorial restrictions in Chupp’s agreement, while not precisely congruent with Chupp’s territory at the time of his resignation, are reasonable because they include only territory in which he actually performed work for Sysco, and thus enabled Chupp to determine with certainty the territory included in the covenant. This is the reverse of the typically overbroad covenant describing a large territory with no indication that an employee ever performed work there. See, e.g., Broniec, supra (six states constituting employer’s territory).

Adopting the principle urged by appellees would create the inconsistent result of voiding a non-competition covenant for over-breadth if it does not include a territorial limitation, but also voiding it for overbreadth if it does include a limitation that is not correct to the letter. Such a ruling would require employers to redraft such agreements whenever any change, however minor, was made in an employee’s territory, or risk voiding the agreement altogether. It also does not recognize that good will and contacts are not instantly extinguished when an employee’s territory changes. Under such a ruling, an employee could request a transfer, obtain an amended agreement including only the new territory, then resign to immediately employ his good will and contacts in the territory no longer covered by the agreement.

Our conclusion that the entire covenant does not fail for over-breadth, however, does not permit Sysco to avoid the clear statement in its agreement that a change in territory will not be effective until the territorial limitation in the agreement is amended. We find no merit in Sysco’s assertion that the change in the territorial limitation, despite its clear wording, may be expanded to include counties not included in the agreement. As noted above, while a non-competition covenant may legitimately include all territory in which the employee has actually worked, this covenant does not; it expressly applies only to those counties listed by name. By the clear terms of the employment contract itself, Sysco cannot seek to enforce Chupp’s non-competition agreement with respect to territory not included in the covenant as drafted. As the trial court correctly observed, we cannot “blue pencil” or edit a restrictive covenant ancillary to an employment contract; once found to be reasonable in scope, it must be enforced as drafted. Smith v. HBT, Inc., supra, 213 Ga. App. at 563 (2). This contract therefore is not enforceable in counties not listed in the covenant, even though Chupp may have worked for Sysco in those counties.

2. The trial court also struck down the non-solicitation covenants executed by all three appellees because it found overbroad the language forbidding solicitation “directly or indirectly.” This phrase has been repeatedly construed by the Georgia courts, however, and has been held to be both unambiguous and enforceable. See, e.g., Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (455 SE2d 601) (1995), and cases cited therein. An “indirect” solicitation occurs when the former employee undertakes “some affirmative action on his part that could be considered a solicitation in the broadest possible sense. [Cit.]” Id. The trial court incorrectly concluded that this language is overbroad because it could be construed to forbid any former salesperson for Sysco from ever soliciting any customer any other Sysco employee had ever contacted. On the contrary, the plain language of the covenant and the affirmative conduct rule noted in Akron require that the salesperson in question must actively participate in the indirect solicitation of his own former account.

From the facts presently before us, it appears that Yearous and Phillips left Sysco together, called on their former Sysco accounts personally for several weeks, then exchanged their accounts after Sysco called their non-solicitation covenants to Alliant’s notice. By personally calling on their former accounts before agreeing to trade customer lists with each other, Yearous and Phillips employed the contacts, knowledge, and good will that Sysco was entitled to protect to further their interests at Alliant. Under these facts, the concerted nature of this joint conduct constituted an indirect solicitation as forbidden by the covenant.

Any error or omission in a territorial restriction, or even its complete absence, is not determinative under these facts. The Supreme Court of Georgia has expressly held that no territorial restriction is needed when a non-solicitation covenant simply prohibits a former employee from soliciting the same customers he contacted during his tenure with the employer. Mouyal, supra, 262 Ga. at 468. Perhaps significantly, the amendment of Sysco’s non-solicitation covenant to omit the territorial restriction occurred after the Mouyal decision was handed down.

The non-competition and non-solicitation agreements executed by appellees here satisfy as a matter of law the limitations- established by the Georgia courts, and the trial court erred in striking them down.

Judgment reversed.

Andrews, C. J, and Senior Appellate Judge Harold R. Banke concur.

Decided March 18,1997.

Jones, Byington, Durham & Payne, Frank H. Jones, Arnall, Golden & Gregory, Debra M. Buster, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, Mark M. J. Webb, for appellees.

       Although this action seeks injunctive relief, this Court rather than the Supreme Court has jurisdiction. See Pittman v. Harbin Clinic &c. Assn., 263 Ga. 66 (428 SE2d 328) (1993).

       Yearous’s non-solicitation covenant reads as follows: “Agreement Not To Solicit Customers. Employee covenants and agrees that during his employment by the company and for a period of one (1) year following the termination of such employment for any reason, he will not, without the prior written consent of the company, either directly or indirectly, on his own behalf or in the service or on behalf of others, solicit or attempt to divert or appropriate to a competing business, any customer of the company to whom the company sold or provided any products or services and with whom the employee dealt on behalf of the company at any time during the 12 months immediately preceding termination of his employment.”

       Chupp was originally their supervisor at Alliant. After receiving a letter of complaint from Sysco, Alliant transferred Yearous and Phillips to another supervisor.

       We do not reach the issue of how long an employer’s interest in such good will may survive, beyond the 18 month period at is'sue here.

       The trial court apparently concluded that Sysco’s attempts to place an overly broad interpretation on the scope of the covenants constituted in some manner an admission that the covenants are, in fact, overbroad. Assuming without deciding that statements of counsel can constitute an admission, a mere statement of opinion as to the legal effect of a document is not a binding admission, because interpretation of a contract is a question of law for the court. See Thogerson v. State, 224 Ga. App. 76, n. 1 (479 SE2d 463) (1996).

       Under the trial court’s ruling, nothing would prevent Yearous and Phillips from resuming their former accounts.


author: Blackburn, Judge.

text:
    A97A0220.
    EVANS v. THE STATE.
    (484 SE2d 320)
   Blackburn, Judge.

Tommy C. Evans was convicted of voluntary manslaughter in connection with the stabbing death of L. C. McGriff. Evans appeals his conviction, challenging the sufficiency of the evidence. Evans also contends that the State improperly struck two black jurors and that the court erroneously allowed the testimony of a rebuttal witness for the State.

1. Evans contends the trial court erred in denying his motions for directed verdict and for a new trial because of the insufficiency of the evidence. “On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Punctuation omitted.) Flight v. State, 221 Ga. App. 574 (1) (472 SE2d 113) (1996). “The jury resolves all conflicts in the evidence produced at trial "Buchanan v. State, 215 Ga. App. 143,144 (1) (449 SE2d 660) (1994).

The evidence shows that McGriff and another man, Damon Williams, went to see McGriff’s sister, who lived with Evans. Evans had been drinking. McGriff and Evans became involved in a struggle on a sofa in the apartment. There was conflicting evidence regarding how McGriff sustained his fatal wound. Williams testified that, when he saw McGriff and Evans “tussling” on the sofa, he became scared and told McGriff that they should leave. He testified that he and McGriff then left the apartment and got into Williams’ car, at which time McGriff told Williams that he had been stabbed by Evans. Williams then took McGriff to the emergency room. The medical examiner testified that McGriff died from a stab wound to the upper abdomen.

When police arrived at Evans’ apartment, they found Evans bleeding from cuts to the head and back. Evans gave a statement to police at the scene. Evans was taken to the hospital, where he gave another statement to the police. Although Evans did not testify at trial, his statements at the scene and the hospital were offered into evidence. According to the police, Evans stated that McGriff threatened to kill him because he had tried to rape McGriff s mother. Evans stated that, after their struggle on the sofa, he followed McGriff out to the car, where McGriff hit Evans on the head with a knife. Evans stated that he then turned around to go back inside, at which time McGriff stabbed him in the back. Evans claimed that he then hit McGriff on the head, and that McGriff must have fallen on his own knife.

The medical examiner testified that the stab wound to McGriff s abdomen was not consistent with falling on a knife, but indicated a deliberate stabbing. A physician’s assistant who treated McGriff at the hospital testified that McGriff said he had been stabbed by another man and thought he was dying. Williams testified that he had preceded McGriff to the car, and did not see or hear McGriff and Evans fighting near the car.

When police searched Williams’ car, they found a pocketknife on the passenger side dashboard. Although blood was found on the knife, tests to identify the blood were unsuccessful. Williams could not say if he had seen McGriff with the knife. A defense witness who left the apartment before the stabbing testified that he saw McGriff pull a pocketknife out of his pocket while arguing with Evans, and then put the knife back in his pocket. However, he stated that the knife found in Williams’ car did not appear to be the knife he had seen. This witness was impeached by the State by evidence of his prior convictions for possession of crack cocaine and possession of marijuana.

“While there was conflicting evidence on some of these issues, it is the function of the jury, not the appellate court, to resolve conflicts in the testimony and determine the credibility of the witnesses.” (Punctuation omitted.) Vick v. State, 211 Ga. App. 735 (440 SE2d 508) (1994). “[T]hat some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.” (Citation and punctuation omitted.) York v. State, 207 Ga. App. 494, 495 (1) (428 SE2d 113) (1993). Viewed in the light most favorable to the verdict, the evidence was sufficient to enable the jury to find beyond a reasonable doubt that Evans was guilty of voluntary manslaughter. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Evans, who is black, contends the trial court erred in denying his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), because the State used two of its peremptory strikes to strike the only two blacks in the jury pool. One of the two stricken jurors stated on voir dire that she had known Evans all her life, that he lived down the street from her, that he had been in and out of her home periodically, and that she would be uncomfortable sitting as a juror in his case. The other juror stated that he had known Evans for many years, knew him to be a nice guy, and felt like he was friends with Evans.

Decided March 18,1997.

Suzanne P. Mathis, for appellant.

“[T]he prosecutor’s explanation that he used peremptory challenges to strike the prospective jurors because they knew the defendant provides a proper and racially neutral basis for the exercise of his challenges.” Byers v. State, 212 Ga. App. 110, 112-113 (2) (441 SE2d I 290) (1994). See also Hightower v. State, 220 Ga. App. 165, 166 (1) I (469 SE2d 295) (1996) (fact that juror knows defendant “constitutes a j racially neutral basis for the exercise of the State’s challenges”). Accordingly, the trial court did not err in denying Evans’ Batson motion.

3. After the defense rested, the State called as a rebuttal witness Paul McGlenn, a physician’s assistant who treated Evans and the victim after the incident. Evans contends the trial court erred in allowing McGlenn’s testimony because it was not in rebuttal of the defense’s evidence. However, “whether the State should be permitted to introduce evidence after the defendant has closed his testimony, even if it was not strictly in rebuttal, is a matter resting in the sound discretion of the court.” (Punctuation omitted.) Smith v. State, 260 Ga. 746, 748 (1) (399 SE2d 66) (1991). A trial court has discretion to allow relevant evidence during rebuttal even if such evidence tends to bolster the State’s case more than to directly impeach defense evidence. See Gregg v. State, 216 Ga. App. 135, 136-137 (453 SE2d 499) (1995). The trial court’s discretion “should not be controlled except in a case so gross and palpable as not to admit of hesitation or doubt.” Woodward v. State, 197 Ga. 60, 69 (28 SE2d 480) (1943). The trial court did not abuse its discretion in allowing McGlenn to testify.

Judgment affirmed.

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

Robert B. Ellis, District Attorney, Ellen S. Golden, Assistant District Attorney, for appellee.

       The prosecution also struck a white juror who stated that he knew Evans for many years as a friend, and another white juror who was related to a possible witness.


author: Beasley, Judge.

text:
    A97A0343.
    YOUNG v. A. L. ANTHONY GRADING COMPANY, INC.
    (484 SE2d 318)
   Beasley, Judge.

A. L. Anthony Grading Company sued Young for $13,616.75, the balance allegedly due for services rendered, plus attorney fees pursuant to OCGA § 13-6-11. The appeal focuses on the award of attorney fees, the jury having found that defendant acted in bad faith.

Plaintiff agreed to rebuild a leaking dam in a pond owned by defendant Young. According to plaintiffs principal stockholder, A. L. Anthony, the parties did not have a written contract, but Young agreed to pay hourly charges for labor and equipment in accordance with a price schedule provided by plaintiff. Young admitted receiving it.

Anthony and several of plaintiffs employees testified that Young provided the instructions as to how the dam was to be rebuilt. Anthony testified that Young “told me that he had had somebody else out there, and they wouldn’t do anything like he wanted done, and he wanted it done like he wanted it done. . . . We put it in his way, the way he told me to.” Anthony further testified that when he tried to collect the balance due, Young made excuses but had no complaint concerning the work performed.

Young testified that he did not state how he wanted the work done but rather relied on plaintiff’s expertise. According to Young, Anthony told him that if he could not repair the dam, Young would owe nothing. He testified that the dam had not been repaired, it still leaked and it was in worse condition than before. Young acknowledged that when Anthony came to his home on several occasions seeking payment, he did not complain about the work. He explained that he was unaware the pond was leaking at that time.

The court partially granted defendant Young’s motion for directed verdict as to the attorney-fee claim, ruling that a bona fide controversy existed and thus defendant had not been stubbornly litigious or caused plaintiff unnecessary trouble and expense. The court denied the motion as to the issue of bad faith, based on its determination that a jury could find bad faith by defendant in carrying out the provisions of the parties’ contract. It so instructed the jury and afterward noted that both sides objected to the charge, plaintiff because the two alternative bases were omitted and defendant because it was given at all.

The jury awarded plaintiff $13,612.75 in compensatory damages and $1,435 in attorney fees, which the court reduced to judgment. Defendant Young enumerates as error the denial of his motion for directed verdict as to attorney fees based on bad faith.

Before 1984, OCGA § 13-6-11 authorized the recovery of attorney fees where the defendant had acted in bad faith “in making the contract.” A 1984 amendment deleted the limiting phrase, thereby broadening the circumstances of bad faith for which attorney fees are recoverable.

“Bad faith warranting an award of attorney fees ‘must have arisen out of the transaction on which the cause of action is predicated.’ [Cit.]” It may be found in defendant’s “ ‘carrying out the provisions of the contract,’ ” that is, in how defendant “ ‘ “acted ... in his dealing with the plaintiff.”’” Burlington Air Express v. Ga.-Pacific Corp., 217 Ga. App. 312, 313 (457 SE2d 219) (1995). “ ‘Bad faith other than mere refusal to pay a just debt’ ” is sufficient, “ ‘provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. . . .’ [Cit.]” C & S Trust Co. v. Hicks, 216 Ga. App. 338, 339 (2) (454 SE2d 207) (1995). So defendants “can be held liable for attorney fees if they committed the breach in bad faith.” Id.

Even in Glen Restaurant v. West, 173 Ga. App. 204, 205 (325 SE2d 781) (1984), cited by defendant both below and here, the Court acknowledged that a jury could award attorney fees on evidence of “ ‘bad faith in carrying out the provisions of the contract’ ” and “bad faith in a breach of contract other than mere refusal to pay a just debt . . . provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive.’ ” (Emphasis in original.) The award of attorney fees was reversed because the majority of the appellate court found no evidence that defendant “acted through ill will or furtive design with regard to the performance of the contract.” It equated this with “sinister motive.” Bad faith prompted by some interested motive is also sufficient, as stated in the cases Glen Restaurant quotes. They take this meaning from Black’s Law Dictionary.

Evidence authorized the jury to find that defendant Young controlled the manner and method of the work performed and was fully aware that he owed plaintiff an hourly charge for the work done regardless of the results. Although he testified that he was not to owe plaintiff anything if the dam was not repaired, it is uncontested that he paid part of the debt. The evidence supports a finding that Young’s refusal to pay the full amount was not based on an honest mistake as to either his or plaintiff’s contractual duties but rather constituted a breach of contract committed in bad faith. The jury could find that he wanted the job performed his way, but when its result was not to his satisfaction, he blamed plaintiff. Thus the award of attorney fees must be affirmed. Burlington Air Express, supra; C & S Trust Co., supra.

Decided March 18,1997.

Charles E. Day, for appellant.

Stephen L. Noel, for appellee.

Judgment affirmed.

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


text:
    A96A2023, A96A2024.
    STAR GAS OF HAWKINSVILLE, INC. v. ROBINSON; and vice versa.
    (484 SE2d 266)
   Andrews, Chief Judge.

This case arose as the result of the death of Annette Robinson, wife of Eddie Lee Robinson and mother of three minor children. Mrs. Robinson died, and Mr. Robinson and the children became extremely ill, due to carbon monoxide poisoning from a gas space heater. Mr. Robinson brought this action against Star Gas, supplier of the liquid propane gas for the heater, for negligent failure to warn and failure to inspect the gas heater and against the hospital and physicians at the emergency room where the Robinsons were treated the night before the fatal accident.

Star Gas denied installing or inspecting the space heater and claimed the Robinsons were contributorily negligent in that they changed the adjustment of the air shutter on the heater, causing it to give off carbon monoxide gas, and covered the doors and windows with plastic, despite the warning label on the heater concerning the need for ventilation.

The case was first tried in June 1994, and resulted in a mistrial. The jury was unable to reach a verdict as to Star Gas, the hospital, and the doctor who treated Mr. and Mrs. Robinson the night before the accident and failed to diagnose carbon monoxide poisoning. The doctor who treated the children was found not liable.

The second trial also resulted in mistrial as to the doctor and hospital. The jury found in favor of the Robinsons against Star Gas, but also found that Eddie Lee and Annette Robinson were 49 percent negligent and Star Gas was 51 percent negligent. They awarded damages as follows: $4,157.25 to Eddie Lee Robinson as surviving spouse, $5,000 to Eddie Lee Robinson as administrator of the estate of Annette Robinson, $2,096.81 to Eddie Lee Robinson, individually, and $50,000 to each of the three children. The jury awarded no punitive damages.

Both sides now appeal. Star Gas claims the trial court erred in failing to give several requests to charge and in determining the admissibility of evidence. Mr. Robinson appeals the $4,157.25 jury award to him as surviving spouse, claiming it is inconsistent with the remainder of the verdict and the evidence presented at trial. Because we find no reversible error, we affirm the judgment of the trial court.

Case No. A96A2023

In Case No. A96A2023, Star Gas appeals from the judgment, claiming the trial court erred in failing to give Star Gas’ requests to charge on respondeat superior, apparent agency, and assumption of the risk, in allowing hearsay testimony of the decedent, and in barring the testimony of an expert witness.

1. First, Star Gas contends the trial court erred in refusing to give its requested jury charges on respondeat superior and apparent agency. The trial court found there was no evidence introduced at trial from which the jury could conclude that the Star Gas serviceman was not acting within the scope of his employment at all times when he called at the Robinsons’ house. Further, Star Gas does not cite us to anywhere in the record, nor do we find, any evidence that the serviceman was acting outside the scope of his employment.

“In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” (Citations and punctuation omitted.) Lee v. Bartusek, 205 Ga. App. 551 (422 SE2d 570) (1992). Here, the charges complained of were not adjusted to the evidence. Accordingly, the trial court did not err in refusing to give Star Gas’ requests to charge nos. 43, 44 and 45.

2. Star Gas also argues the trial court erred in refusing to charge on assumption of the risk. Although Star Gas presented evidence that Mr. Robinson installed the space heater himself, put plastic over the windows despite the warning on the heater of the need for ventilation, and maladjusted the air shutter mechanism on the heater, the trial court correctly found that this evidence raised the issue of contributory negligence, not assumption of the risk.

“[A] ssumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be.” (Citation and punctuation omitted.) Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (409 SE2d 524) (1991). Here, Star Gas points to no evidence introduced at trial from which a jury could conclude that the Robinsons were aware of the danger of carbon monoxide poisoning from the heater and yet decided to assume the risk of that danger. Accordingly, the trial court did not err in refusing to give the requested charge. Lee, supra.

3. Next, Star Gas claims the trial court erred in denying its motion to amend the pretrial order to add a third expert witness. Star Gas filed a supplemental pretrial order two weeks before the specially set case, requesting permission to add another expert witness in addition to the two already named, plus two additional fact witnesses. The trial court allowed the addition of the fact witnesses, but refused to add a third expert witness, noting that this case had already been tried once over a year ago and had been specially set for months with no attempt by either party to amend the pretrial order until two weeks before trial.

“The pretrial order, when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” (Citations and punctuation omitted.) Nease v. Buelvas, 198 Ga. App. 302, 303 (401 SE2d 320) (1991). The decision whether or not to allow a party to introduce at trial the testimony of a witness not named in the pretrial order is left to the sound discretion of the trial court. Id.

Here, Star Gas has shown no “manifest injustice” as a result of the trial court’s refusal to allow it to add a third expert witness. Unlike the appellants in Minnick v. Lee, 174 Ga. App. 182 (329 SE2d 548) (1985), upon which Star Gas relies, it has not shown that it suddenly discovered a prospective witness whose testimony was vital to its case. Id. “The burden is on the party seeking to amend the order to show lack of laches or lack of unexcusable delay in presenting the issue to the court.” Ga. Ports Auth. v. Southeast Atlantic Cargo &c., 202 Ga. App. 318, 320 (414 SE2d 232) (1991). Accordingly, the trial court did not abuse its discretion in refusing to allow the addition of another expert witness just prior to trial.

4. In its last enumeration of error, Star Gas claims the trial court erred in allowing the hearsay testimony of Eddie Lee Robinson as to statements made by the decedent, Annette Robinson. The testimony objected to was statements Annette made to her husband concerning the visits to their home of the Star Gas serviceman, Tim Pittman. On appeal, Star Gas cites only to Annette’s statement to her husband that Tim Pittman installed the heater. Star Gas did not make a contemporaneous objection to the testimony complained of on appeal, but instead made a motion to strike at the close of Mr. Robinson’s direct testimony. Also, Star Gas did not specifically object at trial to the statement complained of on appeal, but argued generally that Mrs. Robinson’s hearsay testimony concerning the serviceman’s visits should be excluded.

Star Gas argued the testimony was inadmissible because the statements were self-serving and were offered by a witness who stood to gain financially from the case. Plaintiffs contended the hearsay testimony should be admitted as Mr. Robinson worked during the day and the only person in the family who was at home when the serviceman came was Mrs. Robinson.

“The two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence — that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.” Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224 (173 SE2d 691) (1970). “A decedent’s declaration, when coupled with circumstances which attribute verity to the decedent’s declaration, is admissible.” (Citation omitted.) White v. White, 262 Ga. 168 (415 SE2d 467) (1992). A trial court’s decision to admit testimony as an exception to the hearsay rule will not be disturbed absent a finding of abuse of discretion. Id.

The trial court correctly denied Star Gas’ motion, relying on Swain v. C & S Bank of Albany, 258 Ga. 547, 550 (372 SE2d 423) (1988). Swain overruled Irby v. Brooks, 246 Ga. 794 (1) (273 SE2d 183) (1980), relied on by Star Gas, holding that Irby was erroneous in looking to the interest of the witness in determining the trustworthiness of the declarant’s statement. Swain at 550. Circumstances indicating that a witness has an interest in the case go to the credibility of the witness, not the admissibility of the hearsay. Id.

Here, there was evidence that the Star Gas serviceman did visit the Robinson house several times during the period before the accident, perhaps in a “gas out” situation which would have necessitated an inspection of the space heater. Also, there is no showing that any of Annette Robinson’s statements concerning her dealings with the serviceman were self-serving when made to her husband. Accordingly, there was sufficient indicia of trustworthiness to substitute for the oath of the declarant and her cross-examination. Chrysler, supra. The trial court did not abuse its discretion in allowing the testimony.

Case No. A96A2024

In Case No. A96A2024, Eddie Lee Robinson cross-appeals, claiming the trial court erred in denying his motion for new trial on the issue of damages. Robinson appeals only one damage award, the $4,157.25 awarded to him on his wrongful death claim as surviving spouse. He claims the court should have granted his motion for new trial because, under OCGA § 51-12-12 (b), the jury’s award is so inadequate as to be inconsistent with the preponderance of the evidence introduced at trial as to the full value of Annette Robinson’s life.

Specifically, Robinson contends the amount awarded has the effect of reducing the amount of damages for contributory negligence twice in contravention of the court’s instruction. The court charged the jury as follows: “as to any percent of contributory negligence which you may have found as to Eddie Robinson and/or Annette Robinson, you are not to reduce the amounts awarded to them below. Any reduction will be made by the Court after you return your verdict.” Robinson claims the award is so low the jury must have reduced it because they believed the Robinsons were contributorily negligent. Therefore, to further reduce it by 49 percent results in a second reduction for contributory negligence. We disagree.

In the absence of clear evidence to the contrary, qualified jurors, under oath, are presumed to follow the instructions and procedural directives of the trial court. Dykes v. State, 191 Ga. App. 879, 880 (383 SE2d 210) (1989). Further, it is well-settled under Georgia law that where comparative negligence is involved under the pleadings and the evidence, a verdict cannot be set aside properly on the grounds that it was inadequate. See, e.g., Beringause v. Fogleman Truck Lines, 209 Ga. App. 470 (433 SE2d 398) (1993); Palo v. Meisenheimer, 199 Ga. App. 24 (403 SE2d 881) (1991).

Accordingly, the jury award on the wrongful death claim could be the result of the jury’s finding that both parties were at fault, the Robinsons only slightly less so than Star Gas. While it is unusual that this award is the same as the amount of the medical and funeral expenses, we cannot say, as a matter of law, that this is due to jury mistake. Even ambiguous verdicts must be upheld if possible. See, e.g., Harrison v. Martin, 213 Ga. App. 337, 340 (444 SE2d 618) (1994).

Bunch v. Mathieson Drive Apts., 220 Ga. App. 855 (470 SE2d 895) (1996), relied on by Robinson, is not to the contrary. In Bunch, this Court based its holding on the fact that the verdict and damages were “inexplicable” and too uncertain to uphold. Id. at 858. In that case, the jury left blank the box finding for the defendant and entered “0” on the line for an award to the plaintiff for wrongful death, yet awarded 100 percent of the funeral expenses. Accordingly, the court could only speculate as to what legal principles the jury was applying. Id. at 860. The court noted that a small amount of damages could be justified by a finding of comparative negligence, but felt the zero award on the wrongful death claim seemed to indicate the jury may have found the plaintiff equally negligent or more negligent than the defendant. Id. at 858.

Decided March 5,1997

Reconsideration denied March 19,1997

Carr, Tabb & Pope, W. Pitts Carr, Render C. Freeman, for appellant.

W. McMillan Walker, for appellee.

Here, the verdict itself, as outlined above, is neither too uncertain nor so inexplicable that the trial court abused its discretion in denying the motion for new trial. “An excessive or inadequate verdict constitutes a mistake of fact rather than of law. It addresses itself to the discretion of the trial judge who saw the witness and heard the testimony. This court is a court for the correction of errors of law only, and this court’s jurisdiction is confined to the question of whether the trial court abused its discretion in overruling the motion for a new trial on this ground.” (Punctuation omitted.) Peterson v. First Franklin Financial, 201 Ga. App. 849, 850 (412 SE2d 612) (1991) (quoting Seaboard Coast Line R. Co. v. Towns, 156 Ga. App. 24, 26 (274 SE2d 74) (1980)).

Judgments affirmed.

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

       Tim Pittman testified at trial that he did not install the heater for the Robinsons.

       The Supreme Court of Georgia has disallowed the use of a motion to strike when objecting to evidence and held that, with the exception of evidence that is inadmissible because it was obtained in violation of a criminal defendant’s constitutional rights, a party must now make a contemporaneous objection in order to preserve the issue for appeal. Sharpe v. Dept ofTransp., 267 Ga. 267, 271 (476 SE2d 722) (1996). The Supreme Court appears to have made the new rule prospective, however, stating: “we henceforth disallow the use of those types of motions to strike approved in Patton [u Bank ofLaFayette, 124 Ga. 965, 974-975 (53 SE 664) (1906)] except under the limited circumstance set forth herein.” Sharpe, supra at 267. Accordingly, the issue was preserved for appeal.