author: Blackburn, Presiding Judge.

text:
    A00A1072, A00A1073.
    SIEG et al. v. PRICEWATERHOUSECOOPERS, LLP; and vice versa.
    (539 SE2d 896)
   Blackburn, Presiding Judge.

In February 1990, Robert Sieg, Jr., CPA, fell down a set of stairs in his house and died. Since that time, Mrs. Robert M. Sieg, Sr., decedent’s mother, and Deborah Sieg Bowen, decedent’s sister, have filed several lawsuits in attempts to obtain an ever-increasing portion of the decedent’s assets and estate and alleged damages resulting from the handling of the decedent’s estate. In the present case decedent’s mother and sister appeal the trial court’s order granting summary judgment to Lynne Warren Sieg, decedent’s wife and plaintiff in the underlying declaratory judgment action. This is the third appearance of cases involving Robert Sieg, Jr.’s estate in our appellate courts. See Sieg v. Sieg. In Sieg v. Sieg, the Supreme Court of Georgia determined that Mrs. Sieg, Sr. and Bowen, respectively mother and sister to the decedent, had standing to enforce the prenuptial agreement signed by the decedent’s wife, Lynne Sieg. The Supreme Court held that the prenuptial agreement “constituted an actual legal settlement under which the rights of the parties vested.” (Punctuation omitted.) Id. at 386 (2). The Supreme Court further noted that it considered only the issue of standing, not the validity of the prenuptial agreement. Id. at 386, n. 2. Bowen v. Hunter, Maclean, Exley &c. In Bowen, this Court affirmed the trial court’s grant of summary judgment to the attorneys who had represented the decedent’s estate and the jury’s determination that the prenuptial agreement was invalid. The decedent’s mother and sister had sued the law firm for professional malpractice, breach of fiduciary duty, negligence, conspiracy, fraud, and conversion.

The underlying facts are necessary in order to understand the somewhat unusual posture of this case. In 1994, decedent’s mother and sister sued decedent’s widow contending that she had improperly claimed the assets of the estate because she had waived her rights as an heir at law by virtue of a prenuptial agreement. In that case, the trial court granted partial summary judgment to the widow with regard to the decedent’s retirement benefits and 401k plan with the decedent’s employer Pricewaterhousecoopers, LLP (PWC). The trial court determined that the widow’s rights to the decedent’s retirement benefits and 401k plan arose out of contract and not by virtue of her marriage to the decedent and, therefore, the proceeds were not part of the decedent’s estate and the widow was entitled to receive the benefits despite the prenuptial agreement. Thereafter, the parties settled the suit by splitting the remaining assets. The trial court’s determination regarding the widow’s entitlement to the decedent’s retirement benefits and 401k plan was never appealed.

Over one and one-half years after settling their suit with the decedent’s widow, decedent’s mother and sister filed an action in Fulton County against decedent’s former employer PWC seeking to recover the decedent’s retirement benefits (hereinafter referred to as the Fulton County action). In the Fulton County action, decedent’s mother and sister alleged that PWC was aware of the prenuptial agreement by which decedent’s widow allegedly waived all rights she would otherwise have obtained in decedent’s estate by virtue of her marriage. The Fulton County complaint further alleged that PWC wrongfully and/or negligently paid the retirement benefits to decedent’s widow. PWC filed an answer, counterclaim for interpleader, and a third-party complaint against decedent’s widow.

In response to the Fulton County action, decedent’s widow filed the underlying declaratory judgment action against PWC in Chat-ham County. Decedent’s widow sought a determination as to her rights in the retirement benefits. Decedent’s widow also filed a petition for interlocutory injunction seeking to require PWC to continue paying the retirement benefits to her. PWC filed a motion to join decedent’s mother and sister as indispensable parties and a motion for interpleader in the Chatham County action. The trial court granted PWC’s motion to join indispensable parties and joined decedent’s mother and sister as involuntary plaintiffs. Thereafter, the trial court granted the widow’s motion for summary judgment giving preclusive effect to its previous determination regarding her entitlement to the decedent’s retirement benefits. The trial court also denied PWC’s motion for interpleader, which ruling is the subject of PWC’s cross-appeal, Case No. A00A1073.

Case No. A00A1072

In Case No. A00A1072, decedent’s mother and sister appeal the trial court’s order granting summary judgment to decedent’s widow regarding her entitlement to the retirement benefits and the denial of their motion to dismiss the complaint.

1. Decedent’s mother and sister contend that the trial court lacked subject matter jurisdiction because the widow’s action was not a proper declaratory judgment action. They argue that there is no actual or justiciable controversy which is required to support a declaratory judgment action.

The Supreme Court of Georgia recently reiterated that the superior court is authorized to enter a declaratory judgment only in cases of actual controversy. Baker v. City of Marietta. See also OCGA § 9-4-2 (a) (grants jurisdiction to superior courts to enter declaratory judgments in cases of actual controversy).

In the present case, the widow’s rights to the retirement account had already been established in the earlier Chatham County action brought by the decedent’s mother and sister. The filing of the Fulton County action did nothing to create a controversy on that issue. The previous resolution of the widow’s rights to the retirement account merely created a defense for the widow to raise against PWC’s third-party complaint. Therefore, no “actual controversy” existed between PWC and the widow. “In the absence of an ‘actual controversy,’ the trial court could not enter a declaratory judgment pursuant to OCGA § 9-4-2 (a). Krause v. City of Brunswick, 242 Ga. 659 (2) (251 SE2d 239) (1978).” Baker, supra at 214.

Our Supreme Court in Baker recognized that the scope of the Declaratory Judgment Act in OCGA § 9-4-2 (b) also includes “justiciable controversies” which is broader than the “actual controversies” language contained in subsection (a). Baker, supra. Therefore, we must determine whether a justiciable controversy exists in the present case in order to justify the underlying declaratory judgment.

Decided September 29, 2000

Reconsideration denied October 16, 2000.

Ronald C. Berry, for appellants.

Alston & Bird, William C. Humphreys, Jr., Cari K. Dawson, Savage, Turner & Pinson, Brent J. Savage, C. Dorian Britt, for appellee.

A declaratory judgment is authorized when there are circumstances showing a necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct, which is properly incident to his alleged rights and which if taken without direction might reasonably jeopardize his interest.

(Punctuation omitted.) Id.

The plaintiff in the present declaratory judgment, the widow, cannot assert that she faces a risk of taking future undirected action. She has merely recast her defense to the Fulton County action as a declaratory judgment in an effort to determine whether her defense has merit. The issues before the trial court in the underlying declaratory judgment failed to satisfy the requirements of OCGA § 9-4-2.

Where the party seeking declaratory judgment does not show it is in a position of uncertainty as to an alleged right, dismissal of the declaratory judgment action is proper; otherwise, the trial court will be issuing an advisory opinion, and the Declaratory Judgment Act makes no provision for a judgment that would be “advisory.”

(Citation omitted.) Baker, supra at 214.

The trial court erred in failing to grant the motion to dismiss filed by the involuntary plaintiffs.

2. Due to our holding in Division 1, the remaining issues in Case Nos. A00A1072 and A00A1073 are rendered moot.

Judgment reversed in Case No. A00A1072.

Appeal dismissed in Case No. A00A1073.

Eldridge and Barnes, JJ, concur.

        Sieg v. Sieg, 265 Ga. 384 (455 SE2d 830) (1995).

        Bowen v. Hunter, Maclean, Exley &c., 241 Ga. App. 204 (525 SE2d 744) (1999).

       The Fulton County action was stayed pending the outcome of the present action in the Chatham County action.

        Baker v. City of Marietta, 271 Ga. 210 (518 SE2d 879) (1999).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A00A1476, A00A1477.
    PHYSICIAN SPECIALISTS IN ANESTHESIA, P.C. v. MACNEILL et al.; and vice versa.
    (539 SE2d 216)
   Mikell, Judge.

The issues in this case revolve around the departure of three physician shareholders from Physician Specialists in Anesthesia, P.C. (“PSA”), a group medical practice specializing in anesthesiology, critical care, and pain management. The three doctors, appellees/ cross-appellants Randy Rizor, Charles A. MacNeill, Jr., and John G. Porter (“Physicians”), filed suit to recover deferred compensation allegedly owed to them pursuant to a Shareholders’ Agreement (“Agreement”) entered into on May 17, 1993, between PSA and its thirteen physician shareholders. PSA defended on the ground that it is entitled to retain the deferred compensation as liquidated damages because the Physicians breached various restrictive covenants when they formed a competing medical practice. PSA also counterclaimed, alleging the Physicians breached their fiduciary duty to PSA, tortiously interfered with PSA’s contractual and business relations, and breached the Agreement’s implied covenant of good faith and fair dealing.

The voluminous record reveals a myriad of disputed and undisputed facts relevant to this appeal. We present them chronologically as follows: Prior to 1990, only Drs. Stanley Mogelnicki and Donn Chambers were shareholders in PSA. All other physicians in PSA, including the plaintiffs, were employees. In 1990, Drs. Mogelnicki and Chambers sold shares of stock to ten physician employees, including the plaintiffs, and the shareholders executed an agreement.

PSA initially held an exclusive contract for the provision of anesthesia services at St. Joseph’s Hospital (“St. Joseph’s”). That contract ended, and in 1992, St. Joseph’s contracted solely with Dr. Mogelnicki’s professional corporation. It does not appear that Dr. Mogelnicki informed the other shareholders of PSA prior to securing the St. Joseph’s contract exclusively for himself.

Dr. Mogelnicki’s contract rendered the 1990 shareholders’ agreement obsolete, and the shareholders, in May 1993, executed the instant Agreement. Under the new Agreement, the shareholders were allowed to continue to provide services at St. Joseph’s despite the contract between the hospital and Dr. Mogelnicki’s professional corporation. The Agreement contains the following restrictive covenant:

The Shareholders each individually covenant and agree that ... for two years after sale of a shareholder’s shares of the Corporation, shareholder will not come indirectly or directly, in the territory of St. Joseph’s Hospital to provide professional services or in the territory of any other location(s) at which the Corporation is providing clinical services (the “territory”), call upon or divert any patients of the Corporation whose name was divulged to shareholder by or through shareholder’s employment with the Corporation or whose name or trade was obtained by shareholder for the Corporation on behalf of any person, firm or corporation which is in competition with the Corporation. ...

The covenant also provides that for two years after the termination of employment, a shareholder will not, directly or indirectly, disclose any names or lists of patients, or any cost or pricing structure for patients, or utilize any such confidential information for the shareholder’s advantage (the “nondisclosure clause”). The covenant prohibits a shareholder from hiring, or attempting to hire, PSA’s employees (the “no-hire clause”). Finally, the Agreement provides that PSA shall be entitled to retain a shareholder’s deferred compensation as liquidated damages in the event a shareholder breaches the restrictive covenant.

Prior to this Agreement, PSA’s physician shareholders and three nonshareholders had incorporated PSA’s pain practice as Physician Specialists in Pain Management, Inc. (“PSPM”). This was done primarily for accounting and billing purposes. In prior litigation between PSA and two of its former employees, we noted that the physician shareholders of PSA were also shareholders of PSPM, controlling the operations and management of PSPM.

Drs. Rizor and MacNeill were PSA’s most active pain management practitioners and sought to expand that portion of the practice. PSA did not share this philosophy. On August 7,1995, Drs. Rizor and MacNeill offered to purchase PSPM from PSA, but ten of the fifteen physician shareholders of PSA voted to decline the offer. On September 5, 1995, Drs. Rizor and MacNeill, then joined by Dr. Porter, notified PSA of their intent to leave PSA. On or about that date, Dr. Rizor met secretly with St. Joseph’s to discuss a pain management venture.

Dr. Mogelnicki learned of Dr. Rizor’s meeting, and, on October 17, PSA terminated Dr. Rizor’s employment. Later that month Dr. Rizor incorporated Physicians’ Pain & Rehabilitation Specialists of Georgia, P.C. (“PPRSG”). Drs. MacNeill and Porter submitted their resignations to PSA on October 31, 1995, effective March 1, 1996, when they left to join PPRSG.

PSA had already terminated the employment of Dr. Rizor’s brother, Russell Rizor, who had been PSA’s practice administrator, based on his covert copying of patient records and other disloyal activities. Mr. Rizor formed Medical Services Corporation (MSC), in order to provide services to PPRSG. As president of MSC, Mr. Rizor executed a letter of confidentiality with a provider of medical services with whom PSA had been negotiating. This was done prior to Dr. Rizor’s termination, and allegedly on his behalf.

Based on this evidence and the pleadings, the Physicians moved for summary judgment on their complaint and on PSA’s counterclaim. The trial court granted the motion in part, ruling that the liquidated damages clause of the Agreement was an unenforceable penalty; that the noncompete and nonsolicitation covenants were void; and that PSA’s counterclaim for tortious interference with contractual and business relations, breach of the implied covenant of good faith and fair dealing, and attorney fees failed as a matter of law. In Case No. A00A1476, PSA appeals the partial grant of summary judgment to the Physicians. We affirm, except that we hold a jury may award attorney fees to PSA in the event it finds bad faith as to the remaining count of PSA’s counterclaim, the alleged breach of fiduciary duty.

In Case No. A00A1477, the Physicians cross-appeal the denial of their motion for summary judgment on PSA’s claims that the Physicians breached the nondisclosure clause, the no-hire clause, and their fiduciary duties. We affirm.

Case No. A00A1476

1. PSA contends that the trial court erred in ruling that the liquidated damages clause of the Agreement is an unenforceable penalty.

In deciding whether a contract provision is enforceable as liquidated damages, the court makes a tripartite inquiry to determine if the following factors are present: First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.

Whether a specified sum constitutes liquidated damages or a penalty is a question of law. In the instant case, the parties do not dispute that the financial harm caused by a shareholder’s breach of the restrictive covenant would be difficult to estimate accurately. Thus, the first prong of the inquiry is satisfied. As for the second prong, we must examine the Agreement to glean the parties’ intent. Here, the parties agreed that “the amount of the Deferred Compensation is a reasonable estimate of liquidated damages and does not constitute a penalty.” Thus, we cannot say that PSA failed the second prong as a matter of law.

However, the Physicians have demonstrated that the amount of deferred compensation calculated in accordance with the Agreement did not constitute a reasonable pre-estimate of the probable loss. In pre-Agreement correspondence, PSA’s counsel recommended implementing a provision stating that “upon breach of the restrictive covenant the breaching physician assigns and releases his or her rights to their portion of accounts receivable as calculated under the deferred compensation formula.” Counsel’s proffered reason was that such a formula “would be practical, and easy to implement.” Further, when asked why that specific mechanism was chosen, Dr. Mogelnicki replied that PSA’s attorneys “thought it would be a just amount.” The evidence thus shows conclusively that no effort was made to preestimate the loss. It follows that the clause constitutes a penalty.

PSA argues that because in hindsight, its expert witness’s assessment of the damages resulting from the Physicians’ breach of the restrictive covenants (between $474,000 and $780,000) is in the range of PSA’s estimate of deferred compensation (approximately $600,000), the damages were a reasonable pre-estimate of PSA’s losses. However, the law requires pre-estimation. The record is devoid of evidence that prior to the execution of the Agreement, PSA endeavored to estimate damages resulting from a potential breach of the restrictive covenants.

PSA incorrectly relies on Kem Mfg. Corp. v. Sant and Sheppard v. Columbus Packaging Co. for the proposition that the Physicians forfeited their right to receive deferred compensation by allegedly breaching the restrictive covenants. The contracts at issue in Kem Mfg. and Sheppard both provided that payments of benefits to employees were contingent on the employees’ adherence to the contract’s restrictive covenants. The Agreement in the case sub judice did not contain “contingent upon” language.

Accordingly,
[w]e think a correct resolution of this issue must be found in the doctrine that “in cases of doubt the courts favor the construction which holds the stipulated sum to be a penalty, and limits the recovery to the amount of damages actually shown, rather than a liquidation of the damages.”

2. PSA next argues that the trial court erred in ruling that the territorial restriction in the Agreement’s noncompete clause is unenforceably vague.

(a) The first step in our review is determining the proper level of scrutiny. Generally, restrictive covenants ancillary to professional partnership agreements are viewed with a middle level of scrutiny, while those found in employment contracts are strictly scrutinized. As explained in Rash v. Toccoa Clinic Med. Assoc. , partners hold relatively equal bargaining positions, while an employer’s bargaining power is markedly superior to that of his or her employee. Normally, restrictive covenants in professional partnership agreements are mutually advantageous to all signatories, and the consideration flows equally among the contracting parties. These factors weigh in favor of the enforceability of restrictive covenants in partnership agreements.

Thus, our determination in the case sub judice rests with the parties’ relative bargaining strength. In this regard, the evidence shows that in 1992, Dr. Mogelnicki’s professional corporation secured an exclusive contract for the provision of anesthesia services at St. Joseph’s, triggering the need for the instant Agreement.

Dr. Rizor deposed that the shareholders felt vulnerable after Dr. Mogelnicki obtained the contract with St. Joseph’s because he would then be able to form a new practice and exclude the other physicians. Dr. Rizor explained that the purpose of the restrictive covenant was to create a penalty substantial enough to prevent Dr. Mogelnicki from enticing other shareholders to join a new practice. Similarly, Drs. MacNeill and Porter deposed that the new Agreement, including the restrictive covenant, was intended to protect the remaining shareholders of PSA.

The Agreement treats Drs. Mogelnicki and Chambers preferentially to all other shareholders. Specifically, the Agreement exempts Dr. Mogelnicki from the restrictive covenant, permanently designates him as chair and medical director of the anesthesiology department, assigns him a permanent position on the board of directors, limits the circumstances under which his employment can be terminated, and prohibits the reduction of his compensation below a certain level. Also, the fact that Dr. Rizor was unable to prevent his own termination or his removal by Dr. Mogelnicki as director of PSPM is evidence of Dr. Rizor’s inferior bargaining capacity. Thus, the evidence indicates that the balance of power may have tipped in Dr. Mogelnicki’s favor.

However, Dr. Chambers deposed that Dr. Rizor was the most actively involved shareholder in the process of revising the 1990 agreement. Dr. Rizor was president of PSA until a month or two prior to the execution of the 1993 Agreement, and as such, he had significant input into the drafting of the restrictive covenant. Not only were all of the shareholders physicians, they were specialists whose services were capable of generating considerable monetary benefit for PSA, for the other shareholders, and for themselves.

In the final analysis, we are unable to conclude as a matter of law that Dr. Mogelnicki exerted such bargaining power over the remaining shareholders as to render the restrictive covenant at issue subject to the strict level of scrutiny accorded standard employment contracts. Therefore, it will be subjected to “the middle level of reduced scrutiny accorded professional contracts where the parties are considered as having equal bargaining power.”

(b) Using the middle level of reduced scrutiny, we examine the territorial restrictions in the restrictive covenant at issue to determine whether, as the trial court found, they are unenforceably vague. The noncompete clause provides in part as follows:

The Shareholders each individually covenant and agree that ... for two years after sale of a shareholder’s shares of the Corporation, shareholder will not come indirectly or directly, in the territory of St. Joseph’s Hospital to provide professional services or in the territory of any other location(s) at which the Corporation is providing clinical services (the “territory”). . . .

The reasonableness of a restrictive covenant is determined by examining its duration, territorial coverage, and scope of prohibited activity. This tripartite test is not applied arbitrarily, but as a “helpful tool in examining the reasonableness” of the underlying factual setting.

The Physicians do not contend that the covenant is improperly limited either in the scope of activities prohibited or in its duration. Thus, our inquiry is limited to the territorial restriction. The trial court ruled that the limitation was unenforceable because the Physicians could not determine the prohibited territory when they signed the Agreement. This analysis is correct for cases interpreting employment contracts subject to strict scrutiny. For example, we recently held in AGA, LLC v. Rubin, that a territorial restriction in a physician’s employment contract which covered “any hospital” at which the employee “regularly perform [ed] services for Employer during the term of this Agreement” was void on its face because the physician/employee could not determine the proscribed territory until his employment was terminated. In Osta v. Moran we held that a geographic limitation placed upon a physician/employee was too potentially restrictive because the locations of the employer’s clinics were subject to change.

Unlike the physicians in AGA and Osta, the physicians in this case are shareholders, and we scrutinize the instant covenant less strictly. Accordingly, the issues are whether “the territory of St. Joseph’s” is unreasonably vague and whether the territory includes locations into which the Physicians knew PSA planned to expand when they signed the Agreement.

With regard to the first issue, the shareholders’ various definitions of “the territory of St. Joseph’s” attest to its vagueness. For example, Drs. MacNeill, Sween, and Yilling, another PSA shareholder, testified that they understood the term to mean the hospital’s “campus.” Dr. Porter defined it as the “campus” as well as the surrounding medical office buildings. Dr. Mogelnicki testified he “originally” believed the territory was limited to St. Joseph’s, but now believes it includes other neighboring hospitals and medical office buildings. To Dr. Rizor, the territory means the “block of land that the hospital and its office buildings are on.” He deposed that Dr. Mogelnicki stated the territory did not include neighboring hospitals. It is clear that this ill-defined territory falls far short of the “absolute” territorial restriction upheld in Rash, which precluded the partner/physician from practicing within a 25-mile radius of Toccoa. It follows that the proscribed territory in the instant case is unreasonably vague.

With regard to the second issue, the contracting parties’ knowledge about any planned expansions, the evidence shows that when the Agreement was executed, PSA and PSPM provided services only to St. Joseph’s. By October 1995, PSA and PSPM had expanded to treating patients at four additional locations: Resurgens Surgery Center, Atlanta Outpatient Surgery Center (“AOSC”), Columbia Parkway Medical Center (“Parkway”), and the REACT Center at Windy Hill (“REACT”). According to Dr. Sween, PSA began providing services at AOSC in September 1995. The practice at Resurgens was opened in 1993. The record does not indicate when PSA or PSPM began rendering treatment at Parkway and REACT. The evidence at most indicates that the Physicians anticipated the expansion into Resurgens. However, we cannot reach the same conclusion regarding the other three new facilities. It follows that the territorial restriction is void for the additional reason that the Physicians were unaware of the expansion plans when they executed the Agreement.

We also reject PSA’s assertion that the insertion of the language that “the territorial, time and other restrictions . . . constitute reasonable and equitable restrictions” saves the territorial restriction. While, as the Supreme Court noted in Rash, this clause is an important consideration, it cannot save the territorial restriction from being unreasonably vague. It follows that the trial court correctly granted summary judgment to the Physicians on this issue.

3. Similarly, we hold that the Agreement’s nonsolicitation clause is unenforceable as a matter of law, although for different reasons than the trial court specified. The trial court deemed the nonsolicitation clause unenforceable on the ground that the noncompete clause was void. However, Habif, Arogeti & Wynne v. Baggett explained that a covenant not to solicit must be viewed on its own merits.

The clause under consideration provides that a shareholder may not, for two years after selling his or her shares to PSA,

call upon or divert any patients of the Corporation whose name was divulged to shareholder by or through shareholder’s employment with the Corporation or whose name or trade was obtained by shareholder for the Corporation on behalf of any person, firm or corporation which is in competition with the Corporation.

In Baggett, the Court, applying a middle level of scrutiny, upheld a nonsolicitation clause contained in an accounting partnership agreement which prohibited a former partner from soliciting those clients for whom the partner had done substantial work, for the purpose of performing accounting services. Here, the covenant contains no such limitations. The Physicians are not permitted to “call upon” any of PSA’s patients, for any reason, and regardless of whether the Physicians had treated them. The covenant is overbroad, even under a reduced level of scrutiny. In any event, Dr. Mogelnicki deposed that he could not name any patients whom the Physicians had called upon or diverted to their new practice. It follows that summary judgment was properly granted to the Physicians on this claim.

4. The trial court correctly ruled that PSA’s claim of tortious interference with business or contractual relations fails as a matter of law.

To survive summary judgment on this claim, PSA must produce evidence to show that the Physicians acted improperly, without privilege, and with intent to induce a third party or parties not to enter into or continue a contract or business relationship with PSA, causing harm to PSA. While the evidence raises questions of material fact on each of these elements, application of the “stranger doctrine” precludes PSA’s claim as a matter of law. The evidence does not show that the Physicians were strangers to any business relationship with which PSA alleges they tortiously interfered. Rather, PSA alleges that the Physicians, while employed by PSA, were complicit in the covert copying of patient files. Even if the allegation is true, the Physicians were not strangers to PSA’s relationships with its patients. Accordingly, we are constrained to hold that the trial court correctly granted summary judgment to the Physicians on PSA’s claim for tortious interference with business or contractual relations.

5. Similarly, PSA’s claim that the Physicians breached the Agreement’s implied duty of good faith and fair dealing cannot survive summary judgment.

This implied duty “requires both parties to a contract to perform their promises and provide such cooperation as is required for the other party’s performance.” In this regard, PSA argues that the Physicians have breached this duty by violating the restrictive covenants contained in the Agreement. This argument is merely a duplication of PSA’s breach of contract claims. Accordingly, summary judgment was properly granted to the Physicians on PSA’s claim of breach of implied duty of good faith and fair dealing.

6. However, the trial court erred in granting summary judgment to the Physicians on PSA’s claim for attorney fees and expenses of litigation under OCGA § 13-6-11.

That Code section permits a jury to award attorney fees “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” If a bona fide controversy exists, attorney fees may be awarded only if the defendant has acted in bad faith in the underlying transaction.

A bona fide controversy exists in this case; therefore, in order to survive summary judgment on this claim, PSA must produce evidence that the Physicians acted in bad faith. Based on our holdings in Divisions 7, 8, and 9, infra, that genuine issues of material fact remain on whether the Physicians breached the Agreement’s nondisclosure and no-hire clauses as well as their fiduciary duty to PSA, it is for a jury to determine whether PSA is entitled to recover attorney fees and expenses of litigation.

Case No. A00A1477

7. The Physicians argue that the trial court erred in denying their motion for summary judgment as to the enforceability of the nondisclosure covenant. We do not agree. Further, genuine issues of material fact remain as to whether the Physicians violated the covenant.

The validity of a nondisclosure provision depends upon its reasonableness, which, in turn, hinges on two factors:

(1) whether the employer is attempting to protect confidential information relating to the business, such as trade secrets, methods of operation, names of customers, personnel data, and so on ... ; and (2) whether the restraint is reasonably related to the protection of the information.

The nondisclosure covenant in the Agreement at issue provides that for two years after the termination of employment, a shareholder will not, directly or indirectly, disclose any names or lists of patients, or any cost or pricing structure for patients, or utilize any such confidential information for the shareholder’s advantage. In the Agreement, the shareholders expressly “acknowledged that such customer names and lists are valuable assets” of PSA.

In Durham v. Stand-By Labor of Ga., our Supreme Court upheld a clause prohibiting the post-employment disclosure of “any information whatsoever concerning any customer,” including the company’s “method of doing business.” The Court ruled that “the legitimacy of the need to maintain the confidentiality of such information is a question of fact whose resolution is for the court below.” As in Durham, we cannot conclude as a matter of law that the nondisclosure covenant in the case at bar is overbroad.

The Physicians rely on Wolff v. Protégé Systems which struck down as overbroad a clause prohibiting the disclosure of any of the employer’s customers “or any other information pertaining to them.” Wolff held that the information sought to be protected was available from other sources and therefore not necessary to protect the employer’s legitimate business interests. Moreover, the employee had acquired information about many of the employer’s customers before he became employed at the company. In contrast, the evidence in the instant case does not show that the Physicians had obtained such information prior to associating with PSA.

Nor do we find Nasco, Inc. v. Gimbert to be apposite. In Nasco, the Supreme Court struck as overbroad a clause banning disclosure of “any information concerning any matters affecting or relating to the business of employer.” The Court reasoned that the clause affected “a great deal of public information concerning many matters which would affect or relate to the business of the employer; e.g., interest rates or minimum wage legislation.”

The Physicians argue that their ability to obtain pricing information from an insurance company shows as a matter of law that a portion of the information, sought to be protected, i.e., the “cost or pricing structure for patients,” was available to the general public. We cannot agree that an insurer’s disclosure of rates to a physician’s office encompasses such broad availability. In any event, even if “the nondisclosure provision includes at least one item of information which is available to the public,” the duty not to disclose is limited to use for competitive purposes. Thus, the nondisclosure clause is not overly broad.

Finally, the evidence raises a fact issue as to whether the Physicians breached their obligation not to disclose patient lists to PPRSG. PSA’s bookkeeper, Yvette Stanley, testified that in February 1996, another employee subsequently terminated by PSA sent medical records by telecopier, without patients’ consent, to Shannyn Buddies at MSC. Duddles, who had been Mr. Rizor’s assistant at PSA and became his marketing director at MSC, admitted receiving the telecopied files. This evidence raises an issue of fact as to whether MSC was acting on behalf of the Physicians, such that the acts of MSC were a breach of the Physicians’ contract with PSA. Accordingly, the trial court did not err in denying summary judgment to the Physicians on this claim.

8. Similarly, the trial court properly ruled that questions of material fact remain as to whether the Physicians breached the no-hire covenant.

The no-hire covenant provides that “shareholder will not . . . solicit or attempt to hire any other employee” of PSA for two years after termination of employment. In U3S Corp. of America v. Parker we upheld a virtually identical clause stating that a former employee could not “solicit or in any manner encourage employees of the Company to leave the employ of the Company” for two years after leaving the employer. “Attempt to hire” may be reasonably interpreted to mean taking affirmative action to hire persons currently in the employ of PSA.

A medical transcriptionist for PSA, Sandra Lamoureux, averred that Dr. Rizor solicited her employment for a new pain clinic that he and Dr. MacNeill intended to form. The offer was made at a meeting, attended by other PSA employees, at the home of Dr. MacNeill. According to Lamoureux, Dr. Rizor stated to her that “offers of employment to those attending the meeting would need to be done in an indirect manner because of the restrictive covenants in the PSA Shareholders’ Agreement.” Similarly, Stanley deposed that after the shareholders voted against the sale of PSPM, Mr. Rizor asked if she would be interested in working for the new corporation he intended to form. Dr. Rizor discussed a new corporation with Stanley. The evidence thus raises an issue for trial as to whether the Physicians breached the no-hire covenant.

9. Finally, the Physicians assign error to the trial court’s ruling that a fact issue remained on PSA’s breach of fiduciary duty claim. There was no error. “It is settled law that corporate officers and directors occupy a fiduciary relationship to the corporation and its shareholders, and are held to the standard of utmost good faith and loyalty.”

At the outset, we note that the shareholders expressly acknowledged their fiduciary relationship with PSA when they signed the Agreement. Further, the evidence shows that Dr. Rizor was president as well as a member of the board of directors of PSPM until September 12, 1995. Dr. MacNeill also served on the board of directors of PSPM. PSA and PSPM were inextricably intertwined. As such, Drs. Rizor and MacNeill are “held to the standard of utmost good faith and loyalty” to both PSA and PSPM.

Even if the Physicians were mere employees, an employee “is not . . . entitled to solicit customers for a rival business before the end of his employment nor can he properly do other similar acts in direct competition with the employer’s business.”

In this regard, the evidence suggests that Dr. Rizor and his brother, Russell Rizor, made a presentation to St. Joseph’s in September 1995 regarding a pain management practice they wished to open on the campus. Dr. MacNeill deposed that prior to his departure from PSA, he felt obligated to tell the 40 to 50 patients with whom he had an ongoing relationship that he would be leaving, and they could either stay with PSA or seek help elsewhere.

In addition, in July 1995, Dr. Mogelnicki undertook negotiations with AOSC to obtain a contract for PSA to provide pain management services there. After unsuccessfully trying to follow up with AOSC, Dr. Mogelnicki learned that Dr. Rizor was already providing pain management services for one of AOSC’s facilities. According to Dr. Mogelnicki, AOSC’s medical director had not returned Dr. Mogelnicki’s telephone calls because Dr. Rizor had asked the director to sign a letter of confidentiality. Dr. Rizor deposed that he and Dr. Porter had met with AOSC during the first week of October to discuss providing pain services. Further, Mr. Rizor executed a confidentiality agreement on behalf of MSC with AOSC on October 9. Dr. Rizor admitted that MSC has no operations apart from serving PPRSG. A jury could construe these contacts with AOSC as evidence that the Physicians breached their fiduciary duty to PSA.

Decided September 13, 2000

Reconsideration denied October 16, 2000.

Decker & Hallman, Richard P. Decker, F. Edwin Hallman, Jr., Peter V. Hasbrouck, for appellant.

Parker, Hudson, Rainer & Dobbs, John H. Parker, Jr., Leo E. Reichert, David L. Fenstermacher, for appellees.

The evidence suggests other possible breaches by the Physicians. During the summer of 1995, Mr. Rizor instructed Duddles to photocopy patient files. This surreptitious mission was accomplished after business hours. Duddles initially hid the copies in the storage closet in her office, then turned them over to Mr. Rizor in December 1995. He testified that he threw them in a dumpster. When questioned about the incident, Mr. Rizor admitted it “must have had something to do with the new entity [PPRSG]. . . .” Additionally, Stanley averred that Duddles requested her assistance with copying records “for use by Dr. Rizor in a new medical practice he was forming.” Stanley testified that she refused and informed Dr. Rizor of her belief that copying patient records for use outside of PSA was tantamount to stealing. Stanley also averred that Dr. Rizor stated he would see to it that the copying ceased. Dr. Rizor deposed that he had no knowledge of any copying of patients’ records and was not the person who put a stop to it. It is for the jury to resolve these conflicts in the testimony.

Accordingly, in Case No. A00A1477, we affirm the denial of the Physicians’ motion for summary judgment on the issues of breach of fiduciary duty, breach of the no-hire covenant, and breach of the nondisclosure covenant. In Case No. A00A1476, we affirm the grant of the Physicians’ motion for summary judgment on the issues of the validity of the liquidated damages clause, the noncompete clause, and the nonsolicitation clause. We also affirm the grant of summary judgment to the Physicians on PSA’s claims of tortious interference with business or contractual relations and breach of the implied covenant of good faith and fair dealing. However, we reverse the grant of summary judgment to the Physicians on PSA’s claim for attorney fees.

Judgment affirmed in Case No. A00A1477. Judgment affirmed in part and reversed in part in Case No. A00A1476. Pope, P. J., and Miller, J., concur.

        Physician Specialists in Anesthesia v. Wildmon, 238 Ga. App. 730, 731 (521 SE2d 358) (1999).

       (Punctuation omitted.) Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976).

        Roswell Properties v. Salle, 208 Ga. App. 202, 205 (3) (c) (430 SE2d 404) (1993).

       Id.

       182 Ga. App. 135 (355 SE2d 437) (1987).

       146 Ga. App. 202 (245 SE2d 887) (1978).

       (Citation omitted.) Southeastern Land Fund v. Real Estate World, supra at 231.

        Habif, Arogeti & Wynne v. Baggett, 231 Ga. App. 289 (1) (498 SE2d 346) (1998).

       253 Ga. 322, 325 (2) (320 SE2d 170) (1984).

        Pittman v. Harbin Clinic Professional Assn., 210 Ga. App. 767, 770 (437 SE2d 619) (1993).

        White v. Fletcher/Mayo/Assoc., 251 Ga. 203, 207 (303 SE2d 746) (1983).

        Keeley v. Cardiovascular Surgical Assoc., 236 Ga. App. 26, 30-31 (4) (510 SE2d 880) (1999).

        W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992); McAlpin v. Coweta Fayette Surgical Assoc., 217 Ga. App. 669, 671 (1) (458 SE2d 499) (1995).

        Pittman, supra at 768.

       243 Ga. App. 772 (533 SE2d 804) (2000).

       Id. at 773.

       208 Ga. App. 544, 546-547 (2) (430 SE2d 837) (1993).

       See Sysco Food Svcs. v. Chupp, 225 Ga. App. 584, 586 (1) (484 SE2d 323) (1997).

       Supra at 325.

       Supra at 326 (3).

       Supra at 297-298 (3).

       Id. at (3) (b). See also Hogan Mgmt. Svcs. v. Martino, 242 Ga. App. 791, 792 (530 SE2d 791) (2000) (covenant prohibiting physician from soliciting any patient, not only those with whom he actually had contact while working for medical corporation, held overbroad).

        Parks v. Multimedia Technologies, 239 Ga. App. 282, 291 (3) (f) (520 SE2d 517) (1999); see also Jenkins v. Gen. Hosp. of Humana, 196 Ga. App. 150, 151 (395 SE2d 396) (1990).

        Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 609-610 (2) (503 SE2d278) (1998).

       However, the allegedly improper copying of patient files may constitute breach of fiduciary duty; see Division 9, infra.

        Ihesiaba v. Pelletier, 214 Ga. App. 721, 724 (2) (448 SE2d 920) (1994).

       See McMann v. Mockler, 233 Ga. App. 279, 281 (3) (503 SE2d 894) (1998).

        Latham, v. Faulk, 265 Ga. 107, 108 (2) (454 SE2d 136) (1995); Toncee, Inc. v. Thomas, 219 Ga. App. 539, 542 (3) (466 SE2d 27) (1995).

       (Punctuation omitted.) Kem Mfg. Corp. v. Sant, supra at 139 (3).

       230 Ga. 558, 559-560 (198 SE2d 145) (1973).

       Id. at 565.

       234 Ga. App. 251 (506 SE2d 429) (1998).

       239 Ga. 675 (238 SE2d 368) (1977).

       (Punctuation omitted.) Id. at 676 (3).

       Id.

        U3S Corp. of America v. Parker, 202 Ga. App. 374, 377-378 (2) (a) (414 SE2d 513) (1991).

       Id. at 376-377 (2) (a).

       Id.

       (Citation omitted.) Quinn v. Cardiovascular Physicians, 254 Ga. 216, 217 (2) (326 SE2d 460) (1985).

       (Citation and punctuation omitted.) E. D. Lacey Mills, Inc. v. Keith, 183 Ga. App. 357, 363 (9) (359 SE2d 148) (1987).


author: Ellington, Judge.

text:
    A00A1602.
    BRADY v. THE STATE.
    (541 SE2d 396)
   Ellington, Judge.

Terry Wayne Brady appeals his 12-month misdemeanor sentence for reckless conduct, OCGA § 16-5-60 (b). He contends his sentence is void because the trial court lacked authority to order that he serve his term of imprisonment in a probation detention center. For the reasons which follow, we reverse the sentence and remand for resentencing.

Brady was indicted in Pickens County for cruelty to children, OCGA § 16-5-70 (b), and obstruction of a police officer, OCGA § 16-10-24 (b). At a jury trial, the State presented evidence showing that on July 28, 1999, a foster care worker and sheriff’s deputies intended to execute an emergency order to pick up the defendant’s two-month-old daughter. The foster care worker and the deputies found Brady and the child at Cove Creek, where Brady, family members, and several underage companions were drinking vodka. For 30 minutes, Brady eluded the deputies: he waded across a hip-deep creek and ran through briers, holding his infant daughter like a football while shouting obscenities at his pursuers. When the deputies recovered the child, she was shaking and vomiting from the chase and had scratches and bruises on her head, torso, and leg.

The jury found Brady guilty on the misdemeanor obstruction charge but not guilty on the felony cruelty to children charge. Instead, they found him guilty of the lesser included misdemeanor offense of reckless conduct, OCGA § 16-5-60. The trial court sentenced Brady on the reckless conduct conviction to serve 12 months at the Carlton Colwell Probation Detention Center. This term of confinement was followed by a consecutive 12-month term of probation on the obstruction conviction. Brady argues that the trial court was not authorized to sentence him to confinement in a detention center for a misdemeanor offense and that his sentence, therefore, is void. We agree.

First, OCGA § 42-8-35.4 (a) allows a trial judge to impose, as a condition of probation, that a defendant satisfactorily complete a program of confinement in a probation detention center. The trial judge did not sentence Brady to a term of probation for reckless conduct. Rather, he imposed a continuous, uninterrupted 12-month period of incarceration at the probation detention center. Only Brady’s sentence for obstruction was probated, and that future sentence does not begin until Brady’s sentence for reckless conduct has been served. See, e.g., Causey v. State, 208 Ga. App. 389, 390 (3) (430 SE2d 594) (1993). Neither OCGA § 42-8-35.4 nor § 17-10-3, pertaining to punishment for misdemeanors generally, allows a court to direct that a misdemeanant serve a term of incarceration in a probation detention center.

Decided October 16, 2000.

Jeffrey L. Floyd, for appellant.

Roger G. Queen, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellee.

Second, even if we were to interpret Brady’s sentence for reckless conduct as a term of probation conditioned upon serving 12 months at a detention center, OCGA § 42-8-35.4 (a) still does not authorize the sentence. While a judge “has broad discretion to determine the terms and conditions of probation, such discretion is not unfettered, but is limited by legislative mandate.” Johnson v. State, 267 Ga. 77, 78-79 (475 SE2d 595) (1996). Here, the legislature has expressly limited the application of OCGA § 42-8-35.4 to two classes of probationer. The statute authorizes confinement to a probation detention center as a condition of probation for: (1) those convicted of felonies and sentenced to a period of not less than one year on probation; and (2) those who were previously sentenced to probation or probation alternatives for either forcible misdemeanors or misdemeanors of a high and aggravated nature, who have violated that probation, and who subsequently are sentenced to a period of not less than one year on probation. OCGA § 42-8-35.4. Brady does not fall into either of these classes. See id. Further, the district attorney has presented us nothing which suggests any other statutory authority for this particular sentence, nor have we found any. “A sentence or portion thereof that is unauthorized by law is a nullity and void.” (Citation omitted.) Harrison v. State, 201 Ga. App. 577, 583 (5) (411 SE2d 738) (1991). Consequently, we vacate Brady’s sentence for reckless conduct and remand the case to the superior court for resentencing on that conviction.

Sentence vacated and case remanded.

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

       But see OCGA § 17-10-3 (a) (2), effective January 1, 2001, which provides that misdemeanors may be punished “[b]y confinement under the jurisdiction of the Board of Corrections in a state probation detention center or diversion center pursuant to Code Sections 42-8-35.4 and 42-8-35.5, for a determinate term of months which shall not exceed a total term of 12 months.”


author: Barnes, Judge.

text:
    A00A1204, A00A1429.
    RICE v. STATE OF GEORGIA (two cases).
    (541 SE2d 58)
   Barnes, Judge.

These appeals arise from civil forfeiture actions filed by the State under OCGA § 16-13-49 on March 20, 1998, against the personal and real property of a wife and husband, Janice Kay Rice and Gary Rice. At the request of the appellants, we have consolidated the appeals because they concern the same property and generally raise the same issues.

On March 20, 1998, the State filed an in rem forfeiture action and served both appellants and their son Jason, who is not a party to these appeals. Both Rices filed timely answers to the forfeiture complaints. On April 30,1998, the State served 136 interrogatories and a notice to produce on the Rices. Then, on May 1, 1998, the State, ex parte, moved for and obtained an order continuing the forfeiture action. The motion was filed at 11:15 a.m. and the order was filed at 11:20 a.m. on May 1, 1998. In its entirety the State’s motion stated:

1. On March 20, 1998, the State of Georgia filed a Complaint for Forfeiture in the above-styled case.
2. Claimants Gary Rice, Janice Rice and Jason Rice each filed separate Answers and claims to the defendant property on or about April 20, 1998.
3. The State has submitted to each Claimant certain requests for discovery including Interrogatories and Requests for Production of Documents. Responses to this Discovery are not due until after the sixty (60) day period expired. The State anticipates that additional discovery will be needed.
WHEREFORE, the State moves this Court for a continuance in the above-styled matter for good cause until such time as all discovery is completed.

That same day, the court granted the motion:

It appearing to the Court that a hearing on the above-styled matter pursuant to OCGA § 16-13-49 (o) (5) should be held within sixty (60) days of service of the complaint; And it appearing that the State’s discovery in this case will extend beyond this sixty (60) day period; THE COURT FINDS the above as good cause and continues the hearing pursuant to OCGA § 16-13-49 (o) (5) until further order of this court.

The record does not reflect that the State gave the Rices any notice of its intention to seek the continuance or that the Court provided any notice to them before granting the continuance.

On June 3,1998, Gary and Jason Rice moved to dismiss the complaint because no hearing was held within 60 days after service and moved to declare the ex parte order a nullity. At oral argument on June 23, 1998, the trial court allowed Janice Rice to adopt the motions. The trial court first denied the Rices’ motions, then vacated that earlier order after Gary Rice moved for reconsideration again asserting that the State failed to hold a hearing, and then ultimately denied the motions.

Subsequently, the trial court ordered the appellants to respond to the State’s discovery within 20 days and later entered an order striking appellants’ answers and granting judgment for the State for the real and personal property.

In Case No. A00A1204, Janice Rice contends the trial court erred by denying her motion to dismiss because a hearing was not conducted within the time prescribed by statute and by abusing its discretion in granting the ex parte motion for a continuance when good cause was not shown. In Case No. A00A1429, Gary Rice contends the trial court erred by granting the State’s ex parte motion for a continuance when good cause was not shown, by not holding a hearing within the time prescribed by law, by granting judgment to the State, and by striking his answer.

Case No. A00A1429

1. Gary Rice’s motions to strike portions of the State’s brief and for sanctions are denied.

Case Nos. A00A1204 & A00A1429.

2. Although we have doubts about the propriety of granting an ex parte motion for a continuance in these circumstances, we need not address that issue because we find that the trial court erred by denying the Rices’ motions to dismiss the forfeiture complaints. Even assuming that the grant of the continuance was authorized initially, more than 60 days had elapsed from the date the continuance was granted until the trial court denied the motion for reconsideration on September 14,1998. In Blanks v. State of Ga., 240 Ga. App. 175 (522 SE2d 770) (1999), we held that “the trial court erred by failing to dismiss the forfeiture action since the State failed either to ensure that the hearing was re-scheduled timely or to seek another continuance after the second continuance.” Id. at 177. In this case, the State’s failures are more serious because the State never scheduled a hearing in this case before seeking a continuance, the order granting the continuance did not set a date for a hearing, and the State never sought a second continuance.

In interpreting the statute, we look to the intent of the legislature and give effect to that intent. The legislature intended OCGA § 16-13-49 to ensure the prompt disposition of property subject to forfeiture under the statute. State of Ga. v. Jackson, 197 Ga. App. 619, 621 (1) (399 SE2d 88) (1990). Our Supreme Court has held that the plain meaning of “must” is a command, synonymous with “shall.” A mandatory construction of “must” as used in OCGA § 16-13-49 (o) (5) is consistent in context with the remainder of this paragraph which provides that the 60-day requirement may be “continued for good cause.” If the 60-day requirement were directory, rather than mandatory, there would be no need for a “good cause” continuance. Moreover, our construction of OCGA § 16-13-49 (o) (5) as mandatory, rather than directory, is consistent with the apparent purpose of that paragraph, which is to ensure a speedy resolution of contested forfeiture cases in the courts, as well as a speedy resolution of property rights. . . . The 60-day period is a statutorily prescribed time limit within which the State must either conduct a hearing or seek a continuance. After the [first] continuance, the State did neither for [over six] months, an unreasonably long time given these clear time constraints. Today we need not decide what period of time constitutes a reasonable delay after a continuance because, unquestionably, the outermost limits of a continuance would be another 60-day period before either the matter is heard or another continuance is granted.

Id. at 177-178. In State of Ga. v. Carter, 244 Ga. App. 560, 561 (536 SE2d 230) (2000), we reiterated what we said in Blanks:

[I]f the hearing is continued for good cause within the statutorily prescribed 60-day time limit, either the matter must be heard or another continuance granted within the next 60 days. The hearing in this case was continued for good cause “until further court order” within the requisite 60-day time frame, but no hearing was held or additional continuance granted within the following 60 days.

As the same circumstances existed in this case, the trial court erred by denying the motions to dismiss the complaint. State of Ga. v. Carter, supra. “Such a lengthy delay in conducting the hearing renders meaningless the very purpose of the statute — the speedy resolution of contested forfeiture actions.” Blanks, supra at 178.

Accordingly, the judgments of the trial court must be reversed and the appeals remanded to the trial court with direction to dismiss the State’s complaints for forfeiture.

Decided October 17, 2000

Stephen T. Maples, for appellant (case no. A00A1204).

McDonald & Cody, Douglas W. McDonald, Jr., for appellant (case no. A00A1429).

Robert W. Lavender, District Attorney, Thurbert E. Baker, Attorney General, Gary D. Bergman, Thomas W. Hayes, Christopher W. Duncan, for appellee.

Judgments reversed with direction.

Blackburn, P. J., and Eldridge, J, concur.


author: Phipps, Judge.

text:
    A00A1241.
    HENSLEY et al. v. HENRY.
    (541 SE2d 398)
   Phipps, Judge.

A jury determined that William Henry was entitled to a private way by necessity over land owned by Augustine Hensley, Jeff Hensley, and Linda Weaver. On appeal, the Hensleys and Weaver claim that (1) the evidence did not establish a private way by necessity; (2) the compensation awarded to them was insufficient; (3) the court erred by denying a motion for mistrial based on an improper jury view; and (4) the court erred by allowing two jurors to testify orally and impeach the verdict. We disagree and affirm.

Henry owns 76 acres of land in Murray County that he inherited from his mother in 1987. She had inherited the property from her father in 1978. Henry’s mother had used Jonas Road (located on land owned by the Jonas family) exclusively to access the property. When Henry first obtained the property, he also used Jonas Road for access. The only other established road that accesses the property is a field road known as Weaver Road.

In 1993, Henry was denied access to Jonas Road. He sued to regain access. Weaver intervened in that action, seeking to preclude Henry from gaining access to Weaver Road if he was prohibited from using Jonas Road. The trial court ruled that Henry was precluded from using Jonas Road but had an easement over Weaver Road. Weaver appealed to this court, and we held that Henry had failed to prove that he had a prescriptive easement over Jonas Road, that the easement his mother had been given to use Weaver Road was extinguished by the terms of her father’s will, and that he had abandoned any existing right he may have had to use Weaver Road. In a separate lawsuit, Henry again sought access to Jonas Road by claiming a private way by necessity. The trial court denied Henry’s claim and suggested that Weaver Road “remains a viable physical alternative.”

Henry was given permission to use Weaver Road for a brief time to harvest hay in one of his fields. During that time, one of Henry’s sons threatened Augustine Hensley’s 88-year-old father with physical harm, someone poisoned his dog with antifreeze, and beer cans were scattered on the road. There was no evidence that Henry was the cause of these incidents, but they ceased when permission to use the road was withdrawn.

Henry filed an action against the Hensleys and Weaver to obtain a private way by necessity over Weaver Road. The access Henry sought came within approximately 25 feet of the front door of the house occupied by Augustine Hensley’s elderly parents. Her mother has only one lung and is severely affected by dust and fumes from tractors or other vehicles.

Henry hired a real estate appraiser to appraise an easement that would allow him to use Weaver Road to access his property. Without actually viewing the property, the appraiser valued the easement at $2,300.

The Hensleys and Weaver hired their own real estate appraiser, who valued the easement at $9,200. The appraiser valued the cost of improvements to the road that he deemed necessary to maintain it at $6,440. He also determined that the value of the houses on either side of the road would be decreased by $5,000 each if the private way was granted, making the total value of the property sought by Henry equal to $25,600.

At trial, James Wilson, a surveyor familiar with the area, testified that Weaver Road was the only reasonable access to Henry’s property, other than Jonas Road. He admitted that there were several other routes to the Henry property that were not existing roads.

The Hensleys and Weaver presented evidence that the private way sought by Henry would be accessible only six months of the year because the creek he would have to cross becomes impassable, even with a tractor, for the remainder of the year. Henry responded that he would “just have to deal with the creek.” The Hensleys and Weaver also presented evidence of alternate routes to the Henry property. One route would not require crossing a creek, but would require that a road be built across land belonging to the Jonas family. The other potential route would be shorter than the Weaver Road access, but would require crossing the same creek at a deeper point over property owned by the Hicks family.

The jury determined that the private way over Weaver Road was both necessary and reasonable, awarded Henry a 20-foot easement across the lands of the Hensleys and Weaver, and decided that Henry should pay $6,000 as just and adequate compensation for the easement. The jury altered the route of the private way so that it did not go in front of the house occupied by Augustine Hensley’s parents.

1. The Hensleys and Weaver contend that the evidence did not establish a private way by necessity over Weaver Road because it is flooded six months of the year and because two alternate routes exist.

We review this claim under the “any evidence” rule and must construe the evidence in favor of upholding the verdict. We must affirm a jury’s verdict that has the approval of the trial court if there is any evidence to support it because “ ‘the jurors are the sole and exclusive judges of the weight and credit given the evidence.’ ”

Pursuant to OCGA § 44-9-40 (a), the superior court has jurisdiction to grant private ways to individuals to go to and from their property. In order to prove the necessity of a private way, OCGA § 44-9-40 (b) requires the condemnor to show that he has no reasonable means of access to his property. Where the condemnor proves that he has no access to his property, i.e., that it is landlocked, he makes out a prima facie case of necessity Tinder the statute. The burden then shifts to the condemnee to prove that the condemnor has a reasonable means of access to the property.

Henry presented some evidence that he was landlocked and had no access to his property. Augustine Hensley also testified that Henry was landlocked and had no way to get to his property. Henry therefore made out a prima facie case of necessity.

The burden then shifted to the Hensleys and Weaver to show that Henry had a reasonable means of access to the property. Although they did introduce evidence of two other potential routes to the Henry property, one would require construction of a new road and the other would require crossing the same creek that Weaver Road crosses at a deeper point. We find that there was at least some evidence upon which the jury could conclude that the Weaver Road access was the only reasonable access to the property. The fact that access to the road may be difficult when the creek rises is a matter that Henry has testified he is willing to address and is not sufficient reason to deny him access to the road.

Although not set forth as a separate claim of error, we note the concern of the Hensleys and Weaver that Henry’s use of their property during the wet seasons may cause damage to the road. Pursuant to OCGA § 44-9-45, Henry or his successor in title must maintain the private way and keep it open and in good repair. Failure to do so for a period of one year will cause title to the private way to revert back to the Hensleys and Weaver.

2. The Hensleys and Weaver claim that the compensation awarded by the jury was inadequate and against the weight of the evidence. We review this claim under the “any evidence” rule set forth above.

The parties presented expert testimony as to the value of the easement, ranging from $2,300 to $9,200. The expert for the Hensleys and Weaver added additional damages, which he testified resulted in a total value of $25,600.

Expert testimony is intended to aid the jury in reaching the correct conclusion on a particular issue, but the jury is not bound by the expert’s opinion and is entitled to give the testimony such credence as it deems appropriate. The jury here was so instructed and may have decided that neither expert’s opinion was an accurate estimate of the value of the easement. We find that the jury’s award of $6,000 as the value of the easement was within the range of the evidence.

3. During jury deliberations, the jury requested an opportunity to view the property at issue. After the judge conferred with counsel and everyone agreed to the jury view, the jurors, the judge, all counsel, a bailiff and the court reporter boarded a bus and visited the property discussed during the trial.

The Hensleys and Weaver moved for a mistrial after returning from the jury view, claiming that it had allowed the jury to gather evidence on their own and that it was prejudicial because the jurors exited the bus to view the Weaver Road route but did not do so for the alternate routes they had proposed. They also noted that the jurors had had private discussions about one of the alternate routes. The judge denied the motion, explaining that everyone had agreed to the jury view, no one had objected during the jury view despite the availability of the court reporter, the bailiff had been with the jurors at all times, they had not obtained permission from the landowners of the alternate routes to go on their property, and the view had been helpful to the jury in arriving at a decision.

The Hensleys and Weaver claim that the jury view was not controlled and that the jurors were allowed to gather additional evidence. They also take issue with the court’s failure to issue curative instructions regarding the view and the private discussions among the jurors. Finally, they complain about the court’s failure to instruct the jury that a view is not evidence.

There are at least two types of jury views. The “evidentiary view” is designed to allow the jury to view evidence introduced in the case that is too large or affixed and cannot be brought into the courtroom. The “scene view” allows the jury to view the premises relevant to the case to better understand the testimony and evidence introduced in court. A view of the scene is not evidence in the case.

The jury view here was a scene view, which merely allowed the well-supervised jurors to see the property discussed during trial and depicted in photographs introduced as evidence, a substantial number of which were devoted to the Weaver Road access. We find no evidence or danger of “the intentional gathering of extrajudicial evidence, highly prejudicial to [the Hensleys and Weaver], by members of the jury and the communication of that information to the other jurors in the closed jury room.”

We find no error in the trial court’s failure to issue curative instructions after the motion for mistrial. Initially, we note that counsel never requested curative instructions. Because we find no error in the manner in which the jury view was conducted, curative instructions were not necessary with respect to the jury’s decision to leave the bus to view the Weaver Road access.

With respect to the communications among the jurors, we find that any objection has been waived. Despite the presence of the court reporter, counsel failed to make any objection to the discussion during the jury view and never requested curative instructions at any time.

Finally, the Hensleys and Weaver never requested that the court instruct the jury that the jury view was not evidence. The trial court had no duty, on its own motion, to instruct the jury that the view was not to be considered as evidence.

4. After the jury’s verdict and the court’s entry of judgment, Henry filed a motion to amend the judgment based on his assertion that the judgment did not accurately describe the 20-foot easement awarded by the jury. Henry claimed that the judgment reduced the easement to ten to twelve feet, based on the survey of the road. After conducting a hearing and allowing testimony from two of the jurors, the court granted Henry’s motion and amended the judgment to provide for a 20-foot easement from beginning to end.

Decided October 17, 2000.

Joseph E. Willard, Jr., for appellants.

Little, Bates & Kelehear, L. Stephen Kelehear, Michael J. Tuck, for appellee.

The Hensleys and Weaver claim that the jurors’ testimony improperly impeached their verdict, contrary to the rule set forth in OCGA § 9-10-9 that affidavits of jurors may be taken to sustain but not to impeach their verdict. The prohibition against impeaching a verdict extends to oral testimony offered at a hearing. But a juror’s affidavit (or testimony) will be allowed to explain a verdict in an attempt to sustain it.

Here, the jury verdict awarded Henry “a private way across the lands of the defendants with an easement 20 feet in width, following a course as shown on attached endorsements.” The attached endorsements included a map diagraming the route of the private way and a description of the route, which also provides for a 20-foot easement. The Hensleys and Weaver rely on language in the description providing that, at one point, the easement shall follow the road as shown on the plat. Because the road as shown on the plat is less than 20 feet wide, they contend that the jury intended for the easement to narrow to the same width.

Both jurors testified that they intended for the entire easement to be 20 feet wide, and one stated that he did not know the width of the road as shown on the plat. Based on the language of the verdict and the jurors’ consistent testimony, it seems clear that the jury intended to provide for a 20-foot easement from start to finish. The trial court properly considered the jurors’ testimony and amended the judgment accordingly.

Judgment affirmed.

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

        Weaver v. Henry, 222 Ga. App. 103, 104-106 (2), (3) (b) (473 SE2d 495) (1996).

        Cohen v. Lowe Aviation Co., 221 Ga. App. 259, 260 (1) (470 SE2d 813) (1996).

       (Citation omitted.) Id.

        Kellett v. Salter, 244 Ga. 601, 602 (1) (261 SE2d 597) (1979).

        Intl. Paper Realty Corp. v. Miller, 255 Ga. 676, 677 (341 SE2d 445) (1986).

       Id.

        Cohen, supra.

        Hambrick v. Makuch, 228 Ga. App. 1, 3 (2) (b) (491 SE2d 71) (1997).

        Jordan v. State, 247 Ga. 328, 345 (9) (276 SE2d 224) (1981).

       Id.

       Id.

       (Citations and punctuation omitted.) Forney v. State, 255 Ga. 316, 320 (7) (338 SE2d 252) (1986).

        Sims v. Majors, 178 Ga. App. 679, 681 (3) (344 SE2d 501) (1986) (objection to private discussions among jurors during jury view waived when not made promptly where both counsel were present at jury view).

        Harper v. State, 182 Ga. App. 760, 761 (2) (357 SE2d 117) (1987); Kilgore v. State, 251 Ga. 291, 303 (6) (305 SE2d 82) (1983).

        PIE Nationwide v. Prickett, 189 Ga. App. 77 (374 SE2d 837) (1988).

        Perryman v. Rosenbaum, 205 Ga. App. 784, 785-786 (2) (a) (423 SE2d 673) (1992).


text:
    A00A1622.
    CHAMBERLAIN v. THE STATE.
    (541 SE2d 64)
   Phipps, Judge.

Debra Chamberlain appeals her conviction of driving under the influence of alcohol and failure to maintain her car in the appropriate lane. She claims that the trial court erred in admitting evidence of her alleged refusal to take a state-administered breath test. Based on the language of the governing statute, OCGA § 40-6-392 (a) (1) (B), we must agree and reverse.

On September 24, 1999, at approximately 11:00 p.m., Chamberlain was driving south on Clairmont Road in Atlanta, crossed the centerline, and hit another car, injuring the driver. The driver of the car behind her had noticed that she was driving erratically before the collision.

DeKalb County Police Officer Davis investigated the collision. After arriving at the scene and inquiring about the cause of the collision, he placed Chamberlain in his patrol car until emergency personnel arrived to examine her and the driver of the other car. At that time, he noticed an odor of alcohol on her breath. Officer Davis testified that Chamberlain initially told him that she had not been drinking but later admitted that she had consumed several drinks. He asked Chamberlain to perform several field sobriety tests. She missed several letters while trying to recite the alphabet, was unable to walk and turn on a straight line, could not perform the one-leg stand, and had problems with the horizontal gaze nystagmus test, which is designed to detect movement or twitching in the eye.

Officer Davis determined that Chamberlain’s performance was consistent with that of someone under the influence of alcohol and arrested her. He read Chamberlain the Georgia Implied Consent Notice and took her to the DeKalb County Jail for further testing. Chamberlain agreed to take a breath test, which was conducted by Officer Hibbert and witnessed by Officer Davis. Officer Hibbert explained the procedure to Chamberlain and told her that she had to provide two breath samples, which would comprise one test. Chamberlain blew into the machine one time and provided an adequate sample that produced a printed alcohol concentration analysis. She did not blow hard enough to produce a sufficient sample the second time. At that time, she requested a blood test. The officers told Chamberlain that she could not have the blood test until she provided the second breath sample. They offered no other reason for denying her an independent test.

Chamberlain testified that she was physically unable to provide the second breath sample and that she told the officers that she had a history of Legionnaire’s Disease, a respiratory infection. She testified that she requested a blood test because of her inability to produce a second sufficient breath sample.

Chamberlain filed a motion in limine to exclude any evidence of her alleged refusal to submit to the state-administered breath test. The trial court ruled that the results of the initial breath sample were inadmissible because the State is required to obtain two samples and that the refusal to provide a second breath sample constituted a refusal to take the test, which was admissible and also negated Chamberlain’s right to an independent test. The jury found Chamberlain guilty of driving under the influence of alcohol and failure to maintain her car in the appropriate lane.

On appeal, Chamberlain asserts that the trial court erred in admitting evidence alleging that she refused to take the state-administered breath test. She claims that she did provide an adequate sample, which did not constitute a refusal; that she was entitled to the independent blood test she requested; and that the failure to provide that test should have precluded any testimony regarding the state-administered test.

OCGA § 40-6-392 governs the admissibility at trial of evidence of the amount of alcohol in a person’s blood, urine, breath, or other bodily substance, as determined by chemical analysis. If the State selects breath testing,

two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state’s or plaintiff’s case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver’s license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.

Decided October 17, 2000.

Chestney-Hawkins Law Firm, Wallace T. Hatcher, for appellant.

After the State has performed its test, the person tested has the right to obtain an independent chemical test or tests.

The trial court relied upon the fact that the State must request two sequential breath samples and the fact that the readings must fall within a certain range to be admissible in reaching its conclusion that the results of the state-administered test were inadmissible. But the statute also expressly provides that a refusal to give a subsequent sample shall not affect the admissibility of the results of any prior sample. Thus, the fact that Chamberlain failed or refused to provide a second sample, as requested by the State, did not affect the admissibility of the results of the first sample.

But the State’s test results were rendered inadmissible when Chamberlain was denied the right to an independent test without justification. After providing a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis on the state-administered breath test, Chamberlain was entitled to the blood test she requested. The unjustified failure to provide the test is a violation of the statute and precludes the State from introducing evidence regarding its test.

We now consider the admissibility of evidence regarding Chamberlain’s failure or refusal to provide a second adequate breath sample. As a general rule, the refusal to submit to a chemical test to determine alcohol content is admissible. For a breath test, unless a person is encumbered by a physical or medical limitation, he or she may be considered to have refused to submit to the test if an adequate breath sample has not been provided. Chamberlain, however, did provide an adequate breath sample as defined by the statute. Because her actions did not constitute a complete refusal to submit to the state-administered test, the trial court improperly denied her motion to exclude any evidence regarding her failure to provide a second breath sample.

Judgment reversed.

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

Gwendolyn R. Keyes, Solicitor, Thomas E. Csider, Alison W. Toller, Assistant Solicitors, for appellee.

       OCGA § 40-6-392 (a) (1) (B).

       OCGA § 40-6-392 (a) (3); Modlin v. State, 176 Ga. App. 83 (335 SE2d 312) (1985).

        Turner v. State, 199 Ga. App. 466 (405 SE2d 296) (1991).

       Id.

        Wessels v. State, 169 Ga. App. 246, 247 (2) (312 SE2d 361) (1983).

        Komala v. State, 237 Ga. App. 236, 237 (2) (515 SE2d 185) (1999).

       Cf. Allen v. State, 229 Ga. App. 435, 436-438 (1) (494 SE2d 229) (1997) (where defendant repeatedly failed to provide adequate breath samples and instrument did not produce a printed alcohol concentration analysis, his actions constituted a refusal to submit to the state-administered test and were admissible).


text:
    A00A1759.
    In the Interest of D. S. R., a child.
    (541 SE2d 61)
   Barnes, Judge.

D. S. R.’s natural mother appeals the judgment of the juvenile court terminating her parental rights to the child. She contends the juvenile court erred by considering stale evidence of her mental health which was introduced without a proper foundation, by considering hearsay evidence of her medical condition, and by entering the following findings of fact: (1) that the citizens review panel recommended termination, (2) that she had difficulty learning, comprehending and following complex directions about D. S. R.’s therapy, and (3) that the mother had a verifiable medical deficiency that made her unable to care for D. S. R. She also contends the final order does not contain explicit factual findings that are supported by clear and convincing evidence.

Viewed in support of the judgment, the evidence shows that since he was born, D. S. R. has never been in the custody of his mother. He was immediately taken into the custody of the Department of Family & Children Services because a social worker at the hospital reported that his parents were not prepared to take him home and DFCS’s investigation showed that the parents’ home was not suitable for him. D. S. R. has two siblings who are in the custody of foster parents. The mother, who was 24, had been in DFCS’s custody because of abuse and neglect by her parents. The mother has several mental and psychological disorders and did not appeal the juvenile court’s deprivation or nonreunification orders concerning D. S. R.

Until shortly before the termination hearing, the mother lived in the same house that was found to be unacceptable in the juvenile court’s deprivation order. D. S. R. has cerebral palsy. He has difficulty learning to crawl and sit up, requires medication and special exercise, and has a problem with aspiration that requires a special liquid diet to prevent him from choking.

The mother has mild mental retardation and is suffering from post-traumatic stress disorder. She has been diagnosed with fetal alcohol syndrome and has an IQ between 55 and 70. Her daily living skills are at the thirteen-year-old level and her communication skills are at the six-and-one-half-year level; she communicates orally very well, but cannot read or write well. It is doubtful that she could understand complex instructions or that she could be taught the exercises necessary for D. S. R.’s physical therapy. It would be extremely difficult for the mother to care for D. S. R. without assistance from others.

According to D. S. R.’s foster mother, a critical care intensive care nurse, after she noted health problems, D. S. R. was diagnosed with cerebral palsy and has multiple special needs. He requires aerosol treatments and chest percussion to treat the symptoms of cerebral palsy and has trouble swallowing that requires a special diet. He has difficulty with balance, standing, and pulling himself up; he has neurological problems, needed occupational, physical, and speech therapy, and needed 24-hour care. The foster mother believed that it would be difficult for someone like the mother to care for D. S. R., and she would not leave him with a 13-year-old because she did not believe that a person of that maturity level could provide for his medical and other needs.

According to the mother’s testimony, she did not have permanent living arrangements, her only source of income was disability payments, the longest she ever held a job was eight months, and she had been taking medicine for depression but decided on her own to stop. The guardian ad litem appointed for D. S. R. recommended that the mother’s parental rights be terminated. The juvenile court terminated the parental rights of the mother and the father. Only the mother, however, has appealed.

1. The standard of review in parental rights termination cases is whether, after viewing the evidence in a light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights should have been lost. In the Interest of J. H., 210 Ga. App. 255, 258 (1) (435 SE2d 753) (1993). On appeal, we defer to the trial court’s factfindings and will affirm unless the appellate standard is not met. In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997). Further, we determine sufficiency of the evidence, but neither weigh the evidence nor determine witness credibility. In the Interest of R. P., 216 Ga. App. 799-800 (1) (456 SE2d 107) (1995).

2. The mother’s allegations concerning the admission of hearsay are without merit. Assuming that some hearsay was introduced, this admission was clearly harmless in light of the other evidence supporting the termination of her parental rights. A party seeking a reversal must show not only error, but injury arising from the error alleged. Ga. Power Co. v. Bishop, 162 Ga. App. 122, 126 (6) (290 SE2d 328) (1982). Additionally, even assuming that some of the evidence of the mother’s condition was stale, this would go to the weight to be given to the evidence and not its admissibility.

3. The mother’s contention that the witnesses were not authorized to rely upon previous diagnoses of the medical conditions of the mother and child that were contained in their medical reports and records is also without merit. The witnesses were caseworkers and nurses who were involved in the treatment or daily lives of the mother and child. Moreover, the information that the mother now complains about was introduced without objection as parts of other exhibits. Under the circumstances, the witnesses were authorized to rely upon the medical and departmental records and to testify, based upon this information, about the mother’s mental status and the child’s special needs.

Decided October 17, 2000.

The applicable law in Georgia is OCGA § 24-9-67, which provides: the opinions of experts on any question of science, skill, trade or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses. Provided an expert witness is properly qualified in the field in which he offers testimony, and the facts relied upon are within the bounds of the evidence, whether there is sufficient knowledge upon which to base an opinion or whether it is based upon hearsay goes to the weight and credibility of the testimony, not its admissibility.

(Citations and punctuation omitted.) Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 592-593 (4) (452 SE2d 159) (1994). The fact that the witnesses’ opinions were based in part on hearsay did not render their testimony inadmissible. “[T]he lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather, presents a [jury] question as to the weight which should be assigned the opinion.” In the Interest of M. D., 244 Ga. App. 156, 158 (2) (a) (534 SE2d 889) (2000), quoting King v. Browning, 246 Ga. 46, 47 (1) (268 SE2d 653) (1980).

4. Although the trial court’s findings of fact stated the wrong date for the citizens review panel’s recommendation to terminate the mother’s parental rights, the mother has not shown how such an error was harmful. Therefore, this enumeration of error is also without merit. Ga. Power Co. v. Bishop, supra, 162 Ga. App. at 126.

5. Viewed in its totality, the evidence discussed above fully supports the termination of the mother’s parental rights and the juvenile court did not err by doing so. Given the mother’s longstanding and continuing incapacity and the special medical needs of the child, no other option was warranted.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

Anthony C. Procacci, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Assistant Attorney General, Gloria D. Reed, for appellee.


text:
    A00A1159.
    JETT v. THE STATE.
    (540 SE2d 209)
   Blackburn, Presiding Judge.

Following a jury trial, Brenda Jett appeals from her conviction of violating OCGA § 16-11-103, discharging a gun near a public highway. On appeal, she contends that: (1) the evidence was insufficient to support her conviction; (2) the trial court erred by denying her motions for a directed verdict; (3) the trial court erred by denying her motion to quash the indictment; (4) there was a fatal variance between the indictment and the proof; and (5) the trial court erred in commenting on the indictment to the jury. For reasons which follow, we affirm.

1. On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to support the verdict, and [Jett] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

(Punctuation omitted.) Lester v. State; see Jackson v. Virginia.

So viewing the evidence, the record shows that Jett and Michael Hackett had an affair from February 1995 until August 1998. In November 1998, Hackett told Jett’s husband about the affair. On March 13, 1999, Hackett parked his car on the side of Schatulga Road, intending to walk to a nearby nightclub. A car knocked against the rear bumper of Hackett’s car several times. Then the car, which Hackett realized was driven by Jett, pulled up alongside Hackett. Jett asked Hackett why he had messed her life up and then repeatedly drove toward Hackett, attempting to run over him. Despite these attempts, Hackett approached Jett’s car, hoping to talk to her. However, when he saw her pushing a clip into an automatic pistol, he ran. As he ran, he heard a shot coming from Jett’s car. Although Hackett did not see Jett point the gun at him or pull the trigger, he was certain that the shot came from her car.

Thereafter, Hackett left in his car, but Jett chased him. Hackett called 911, and the officer who responded stopped Jett’s car. The officer retrieved a loaded .380 caliber Iorcin pistol from the glove compartment of Jett’s car. At trial, Jett admitted that she fired her gun after Hackett had run from her car.

OCGA § 16-11-103 provides that “[a] person is guilty of a misdemeanor when, without legal justification, he discharges a gun or pistol on or within 50 yards of a public highway or street.” The evidence at trial was sufficient to authorize the jury’s finding that Jett was guilty, beyond a reasonable doubt, of discharging a firearm near a public highway. See Jackson, supra. ■

Although Jett claims that the State failed to rebut her defense of legal justification, OCGA § 16-3-21 (a), the facts here do not support that defense. Jett was the aggressor, and Jett’s own testimony was that Hackett had run away before she fired her gun. Hackett testified that he was heading away from Jett when the gun discharged. The evidence shows that Jett had no legal justification for firing her pistol.

2. Jett’s contention that the trial court erred by denying her motion for a directed verdict of acquittal is not properly before this Court. The record shows that Jett’s motion for directed verdict did not include the count of discharging a firearm near a public highway. This Court is a court of review for the correction of errors made by the trial court. Here there is no ruling to review. Farmer v. Stated; Pyle v. City of Cedartown (“[t]his court is for the correction of errors, and where the trial court has not ruled on an issue, we will not address it”). Moreover, as discussed in Division 1, there was ample evidence to enable a rational trier of fact to find Jett guilty beyond a reasonable doubt of discharging a gun near a public highway. “A directed verdict of acquittal is authorized only where there is no evidence to support a verdict to the contrary.” Lane v. State ; OCGA § 17-9-1.

3. Jett contends that the trial court erred by denying her motion to quash the indictment. On appeal, she argues that the indictment was fatally defective because it did not include the statutory requirement that the gun be fired on or within 50 yards of a public road or highway. However, Jett’s motion to quash the indictment, filed after the entry of her plea and after trial had begun, does not address the sufficiency of the allegations in Count 3, the violation of OCGA § 16-11-103. Because the motion to quash did not assert any defect on the face of Count 3 of the indictment, there was no ruling by the trial court on the asserted error. This claim is not properly before us. McKay v. State; see Farmer, supra. Because of our holding, we do not address the timeliness of Jett’s motion to quash. See Pullen v. State (a general demurrer attacking the sufficiency of the indictment should be filed before arraignment; however, if the defect in the indictment would support a motion to arrest judgment, it may be filed during trial).

4. Jett contends that there was a fatal variance between the indictment and the State’s proof because the indictment did not state that Jett fired her pistol within 50 yards of a public road or highway. The determination of whether a variance in the indictment and the proof is fatal depends on whether the variance affects the substantial rights of the accused. Denson v. State. The variance is not material, and therefore fatal, if the indictment definitely informs the defendant of the charges against him, so that he is able to present his defense and protects the defendant against another prosecution for the same offense. Chadwick v. State.

The indictment here specifically alleges that Jett discharged a firearm, a .380 caliber handgun, near a public road and highway, Schatulga Road. The State offered proof of the very conduct. Jett was convicted of violating OCGA § 16-11-103 and is clearly protected from a second prosecution for this crime. We find no fatal variance between the indictment and the proof at trial.

Jett also complains of a variance between the indictment and the jury charge. The trial court charged the jury the statutory definition, “[t]hat a person is guilty of a misdemeanor when without legal justification, he discharges a gun or a pistol within 50 yards of a public highway or a street.” Here, the indictment provided that Jett fired her gun near a “public road and highway,” Schatulga Road, as opposed to a “public highway or street,” and the indictment did not state that the firing occurred within 50 yards of the road. The differences between the indictment and the jury charge are not such as to allow the jury to convict Jett based on conduct not encompassed by the indictment. See, e.g., Hunley v. State. There was no error in the jury charge.

5. Jett claims that the trial court made improper comments to the jury about the indictment. Since the judge only informed the jury what the indictment was, we find no improper judicial statements.

Decided September 28, 2000

Reconsideration denied October 19, 2000.

Melvin E. Cooper, for appellant.

J. Gray Conger, District Attorney, Mark A. Casto, Robert B. Bicker staff II, Assistant District Attorneys, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

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

       1983 Ga. Const., Art. VI, Sec. V, Par. III.

        Farmer v. State, 266 Ga. 869, 870-871 (3) (472 SE2d 70) (1996).

        Pyle v. City of Cedartown, 240 Ga. App. 445, 448 (3) (524 SE2d 7) (1999).

       (Emphasis in original). Lane v. State, 177 Ga. App. 553, 554 (1) (340 SE2d 228) (1986).

        McKay v. State, 234 Ga. App. 556, 559 (2) (507 SE2d 484) (1998).

        Pullen v. State, 199 Ga. App. 881 (406 SE2d 283) (1991).

        Denson v. State, 212 Ga. App. 883, 884 (2) (443 SE2d 300) (1994).

        Chadwick v. State, 236 Ga. App. 199, 201 (2) (511 SE2d 286) (1999).

        Hunley v. State, 227 Ga. App. 234, 235 (1) (488 SE2d 716) (1997).


text:
    A99A1955.
    MIDDLEBROOKS v. THE STATE.
    (540 SE2d 648)
   Barnes, Judge.

In Middlebrooks v. State, 241 Ga. App. 193 (526 SE2d 406) (1999), we affirmed Middlebrooks’s conviction and sentence for hijacking a motor vehicle. In Middlebrooks v. State, Case No. S00C0558 (March 24, 2000), the Supreme Court granted the appellant’s petition for writ of certiorari solely in regard to petitioner’s argument made on the basis of Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999). It then remanded the case to address all issues raised in Middlebrooks’s argument in support of his first and fourth enumerations of error.

A very close review of Middlebrooks’s brief reveals two additional arguments made but not addressed: whether the trial court erred (1) in failing to charge the jury, sua sponte, on withdrawal by a co-conspirator and (2) in overruling Middlebrooks’s objection to certain hearsay testimony. We conclude the trial court did not so err and again affirm Middlebrooks’s conviction and sentence.

1. The trial court did not err in failing to charge the jury, sua sponte, on withdrawal by a co-conspirator. While Middlebrooks claims on appeal that withdrawal was his sole defense, no evidence of withdrawal was presented at trial that would have supported such a charge. Thus, the trial court did not err.

2. Over a hearsay objection, the investigating officer was permitted to testify about the victim’s description of the carjacking. The trial court ruled that the testimony was admissible because the victim had already testified and was available for cross-examination, and because it explained the officer’s conduct. “Evidence of what someone told an officer is admissible to explain the officer’s conduct only in ‘rare instances.’ Prosecutors and trial judges would be well advised to walk wide of error in the proffer and admission of such evidence.” (Citations and punctuation omitted.) McKenzie v. State, 271 Ga. 47, 48 (2) (518 SE2d 404) (1999). In this case, the officer’s recounting of the witness’s statement does not explain his conduct in relation to the actions he took investigating the crime, and allowing him to testify about the witness’s statement was error. We would reverse Middlebrooks’s conviction, however, only if he was harmed by the trial court’s erroneous evidentiary ruling. Id. In this regard, nothing in the officer’s testimony directly inculpated Middlebrooks. Therefore, we find it more than highly probable that its admission did not contribute to the verdict and thus was harmless error. Teague v. State, 252 Ga. 534, 537 (2) (314 SE2d 910) (1984).

Decided October 19, 2000.

Lloyd J. Matthews, for appellant.

Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       The court in Felix held that “where the enumeration of errors filed in the appellate court identifies the trial court ruling asserted to be error, the error relied upon is sufficiently ‘set out separately” ” to require review. Id. at 539.