author: Ruffin, Judge.

text:
    A97A2326.
    ADAMS v. THE STATE.
    (499 SE2d 105)
   Ruffin, Judge.

William A. Adams was indicted for violating the Georgia Racketeer Influenced & Corrupt Organizations Act (“RICO”), OCGA § 16-14-1 et seq. The 130-page indictment alleges in two counts that Adams, a timber broker, along with 27 other individuals and logging companies named as co-defendants, committed numerous offenses of theft by taking against Keadle Lumber Enterprises, Inc. (“Keadle”). See OCGA § 16-8-2. The indictment further alleges that Adams and the other defendants filed fraudulent timber deeds and uttered forged documents in an effort to cover up the ongoing criminal enterprise. See OCGA § 16-10-20. The indictment asserts that the defendants committed a total of 106 predicate acts of racketeering activity, of which 24 involved Adams. See OCGA § 16-14-3 (8) and (9). Following the trial court’s severance of the defendants for trial, Adams was tried jointly with co-defendant J. M. Raines. Upon finding that Adams committed all 24 predicate acts, a jury returned a verdict of guilty on both counts. Adams appeals, and for reasons which follow, we affirm in part and reverse in part.

1. Adams asserts that the trial court erred in denying his special demurrer to 14 of the predicate acts of racketeering activity alleging theft by taking because the indictment did not set forth with specificity the manner in which he committed the offenses. We disagree.

The indictment generally describes the alleged criminal activity as follows: “As part of the criminal enterprise and in order to facilitate and secrete the theft of merchantable timber owned by [Keadle] and other property owners [the defendants] committed the following acts in furtherance of their criminal activity. Inflated or deflated the value of merchantable timber and timber cuts thereby defrauding the timber owner or the mill which purchased the timber; Forged contracts which were procured for the cutting of timber not owned by the defendants; Sold timber contracts to [Keadle] on land that does not exist; Sold timber contracts to [Keadle] for timber they did not own; Stole timber from [Keadle] and sold it to [Keadle] and in other markets; Inflated the acreage of timber tracts, purchased by [Keadle] through [the defendants] in order to inflate the purchase price paid by [Keadle]; Inflated the cruise value on timber contracts sold to [Keadle]; through [the defendants] to inflate the purchase price paid by [Keadle]; and Miscredited timber which was delivered to [Keadle] for the purpose of covering up previous thefts under contracts. The success of the criminal enterprises depended upon the cooperation of the defendants to move the timber product through their various companies until [its] origin or final destination was hidden from [Keadle] and/or the other timber property owners. In every count of this indictment, including all predicate acts, the offenses were unknown to the state until and after October 23, 1989.” (Paragraph indentions omitted.) The indictment names Adams as part of the enterprise in that he was “associated in fact” with twelve other indicted individuals and five logging companies named in the indictment.

Count 1 of the indictment alleges that Adams participated in this pattern of racketeering activity between January 1, 1983 and December 31, 1990. Adams’ participation is described in detail in each of the 14 paragraphs alleging the particular predicate acts. For example, the paragraph concerning Adams’ involvement in predicate act number one provides: “On August 11, 1986, [Adams] and Joseph R. Garrard, in Upson County, Georgia, did then and there unlawfully take property of [Keadle], having a value in excess of $500.00 to-wit: money represented by [Keadle] check #936, made payable to [Adams] dated August 11, 1986, drawn on the account of [Keadle] at the West Central Georgia Bank of Thomaston, Georgia, with the intention of depriving said owners of said property, contrary to the laws of said state, the good order, peace, and dignity thereof.” The other 13 predicate acts involving theft by taking raised by Adams in this enumeration of error are described with equal specificity in the indictment.

We reviewed the sufficiency of this indictment on these same grounds in the appeal of co-defendant Jeffery Grant. See Grant v. State, 227 Ga. App. 88 (488 SE2d 79) (1997). In Grant, we concluded that the indictment was “in no way defective for being insufficient to support a prosecution and conviction. The requisite predicate acts and enterprises comprising the charges against [the defendants] are precisely described and named in each instance. No greater detail was required to allege the RICO offense under Georgia law.” Id. at 90-91.

The descriptions of the predicate acts at issue here are similarly sufficient. The transactions are identified by the numbered checks or descriptions of specific acreage at issue. The indictment names the people involved in the transactions, the owners of the property which was allegedly taken and describes the place where the transactions occurred. Although the exact amount allegedly taken is not stated, the checks are specifically identified. When the indictment is read as a whole, it sufficiently described the offenses to permit Adams to mount a defense to them as racketeering acts and to allow him to plead the prosecution as a jeopardy bar to future prosecution of the same acts. Id. at 91-92. Accordingly, we find no error.

2. Adams asserts that the trial court erred in failing to grant his demurrer to the other ten predicate acts of racketeering activity because those acts were part of the 14 theft by taking transactions discussed in Division 1. The ten predicate acts which are at issue here involve the filing of false deeds in the land records of various superior courts. The State contends that these false deeds were filed in “an attempt to conceal and legitimize the [alleged thefts].” Adams asserts that the deed filings were part of the theft transactions and therefore cannot form the basis of separate predicate acts.

In Raines v. State, 219 Ga. App. 893 (467 SE2d 217) (1996), we addressed the same assertion raised by Adams in this enumeration of error. Raines, a co-defendant of Adams, was charged in the indictment with committing only two predicate acts: (1) theft by taking under OCGA § 16-8-2 by selling a parcel of timber land for a price greatly in excess of its true value by means of false timbercruising reports, and (2) filing a fraudulent deed showing the false cruise in the superior court land records, a violation of OCGA § 16-10-20. We concluded that “[t]he sale of timber from a single parcel of real property, by means of a single deed, in one isolated transaction, cannot be broken down into two predicate acts by separately charging the sale and the filing of the deed.” Raines, supra at 894. Because Raines was only charged with two predicate acts, the minimum required for a RlCO offense, and both acts constituted but one isolated transaction, we reversed his conviction. See id.; OCGA § 16-14-3 (8) (defining “pattern of racketeering activity” as engaging in at least two incidents of racketeering activity described in the statute).

In this case, we discern no significant distinction between the ten alleged predicate acts concerning the filing of false deeds and the one alleged in Raines. As stated in Raines, the deed filings were part of the theft transactions alleged as separate predicate acts. Accordingly, the trial court should have granted Adams’ demurrer to the ten predicate acts alleging the filing of false deeds. Raines, supra.

However, this ruling does not require a complete reversal as it did in Raines. Raines’ conviction was reversed because the State only alleged the minimum of two predicate offenses and we found that one of the acts should have been stricken from the indictment. See id. Here, upon striking these ten predicate offenses from the indictment, there will remain fourteen alleged theft offenses that the State can prove to establish a pattern of racketeering activity, any two of which would be sufficient to sustain a conviction under each count. See id.; OCGA § 16-14-3 (8).

3. Adams asserts that the trial court erred in overruling his demurrer to the indictment because 16 of the predicate acts “were not, as shown on the face of the indictment[,] committed within the statute of limitation.” The indictment alleges, however, that Keadle did not discover the timber inventory losses until October 23, 1989, and that the offenses were unknown to the State until that time. The statute of limitation for RICO criminal prosecutions is five years. OCGA § 16-14-8. Under OCGA § 17-3-2 (2), the period of limitations is tolled during any period in which “[t]he person committing the crime is unknown or the crime is unknown[.]” Because the indictment in this case was returned on July 31, 1992, which was within five years of the time when the victim and the State first learned of the offenses, the trial court did not err in overruling Adams’ demurrer on the grounds asserted. See id.; State v. Brannon, 154 Ga. App. 285 (2) (267 SE2d 888) (1980).

4. Adams asserts that his due process rights were violated because the State moved for a severance without notice to him and the trial court granted the motion without a hearing. Pretermitting consideration of whether the record supports Adams’ assertion, we find that he has failed to show any harm resulting from the alleged error.

The decision of whether defendants, who are charged with non-capital felonies, should be “tried jointly or separately [is] in the discretion of the trial court.” OCGA § 17-8-4. We note that OCGA § 17-8-4 does not provide a statutory procedure for a trial court to follow in deciding whether to join or sever defendants. See Broomfield, v. State, 264 Ga. 145, 147 (2) (442 SE2d 242) (1994). Nevertheless, it is clear that to establish an abuse of discretion, a defendant must clearly show the manner in which he was prejudiced by the trial court’s decision. Depree v. State, 246 Ga. 240, 241 (1) (271 SE2d 155) (1980); Jones v. State, 135 Ga. App. 893 (2) (219 SE2d 585) (1975).

In this case, Adams merely asserts, without any citation to the record, that “by virtue of the unlawful severance, the State was able to introduce into [his] trial, evidence that was illegally obtained by the State, and to which Appellant did not have opportunity to object.” This does not constitute a clear showing of prejudice and we therefore find no abuse of discretion. See Depree, supra; see also Court of Appeals Rule 27 (c) (3) (i).

5. Adams asserts that the trial court erred in allowing the introduction of opinion testimony from two of the State’s witnesses. We agree.

The first witness was Roy Olinger, an agent for the Georgia Bureau of Investigation who investigated the alleged thefts from Keadle. After Olinger explained the methods he used in investigating the thefts and the general schemes in which the thefts were committed by use of fraudulent contracts, the prosecuting attorney asked Olinger: “Now, I’m going to get into some general statements before we get back to some specifics. In relationship to this indictment, did you find any particular tracts of timber sold to [Keadle] by W. A. Adams? A. Yes, I did. Q. And in your investigation of those timber tracts, did any of those timber tracts fit the schemes — A. Yes, they did.” In the 15 pages of testimony that followed, over Adams’ objections, the State elicited conclusory statements from Olinger concerning Adams’ participation in the thefts and the composition of the enterprise. For example, the State’s attorney asked: “In relationship to . . . Mr. Adams, did you find that these fraudulent contracts that you have just described were also recorded at times? A. Yes. Q. Now, I’m going to go through some of the names of the other Co-Defendants in this case. You’ve already described Mr. Joseph R. Garrard. And was he directly or indirectly involved with Mr. Adams . . . in the sale of fraudulent contracts to Keadle pursuant to your investigation? A. He was directly involved. ... Q. In relationship to Mr. Joseph R. Garrard, did you ever find Mr. Garrard involved as you’ve described in this — the various schemes of thefts involving timber contracts in the contracts involving Mr. Adams? A. Yes, I did. Q. Did money flow back and forth between Mr. Adams and Mr. Garrard in relationship to the contracts that you’ve previously described? A. Yes, it did. Q. Now, what about the timber brokers or pin hookers, Mr. Grant, Mr. William Adams, Mr. Kenneth A. Fletcher, Mr. John M. Raines. What was their position in this criminal enterprise? A. Contracts. Q. They supplied the fraudulent contracts? A. Correct. Contracts and money.” The State similarly elicited conclusory testimony concerning other defendants’ participation in predicate acts and the enterprise.

Comparable testimony was presented by another State witness, William Yeomans. Yeomans was a private investigator retained by Keadle to investigate the thefts. Upon explaining his methods of investigating the thefts and his past experience in investigating such matters, the trial court qualified him as an expert of the “methodology of investigation of the timber industry of timber thefts.” During the testimony that followed, Yeomans described how some of the thefts were committed by selling timber deeds to nonexistent tracts of land to Keadle. The State’s attorney then asked Yeomans: “Now, did you ever uncover situations, pursuant to your investigation with [Keadle] of any of these nonexistent tracts in relationship to Mr. Adams?” Yeomans responded “Yes, we did.” Later in Yeomans’ testimony he described how the defendants committed “direct theft of timber” by stealing Keadle’s timber and selling it to other timber companies. Yeomans summarily and unequivocally stated that he “[absolutely” discovered such thefts, and that “[s]ometimes they would deliver Keadle’s own wood back to Keadle and sell it as though they owned it personally.” Finally, the State’s attorney established that in October 1989, Adams bought back timber deeds he had previously sold to Keadle in an effort to conceal his participation in the enterprise. The State’s attorney then asked Yeomans: “And did you look into and investigate the contracts that he repurchased? A. Yes, we did. Q. And did those contracts fit within the description as you described them to the jury as the method of criminology perpetrated within the timber industry? A. Yes. Q. Now, based on your investigation, Mr. Yeomans, when did this criminal enterprise end — in this conspiracy — criminal conspiracy? A. We found activity ongoing during the term of the investigation. . . .”

The State presented all of the foregoing testimony prior to intro-during any primary evidence that Adams committed the alleged predicate acts, including evidence that he did not own the timber, that he executed the allegedly fraudulent timber contracts and that he received payment from Keadle under the contracts.

The testimony should have been excluded; it constituted nothing more than conclusions, and as a general rule “ ‘[a]nswers constituting mere conclusions, surmise or conjecture [should be] excluded from evidence. (Cit.)’ [Cit.]” Carroll v. State, 185 Ga. App. 857, 858 (1) (366 SE2d 232) (1988) (testimony that defendant stole checks was mere conclusion that should have been excluded). “Because the jury is the trier of fact, witnesses are generally not allowed to express their opinion as to ultimate issues involved in the case, as this is the province of the jury. We have allowed an exception to this general rule for opinions or conclusions, even as to ultimate issues, where ‘the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.’ [Cit.]” Maxwell v. State, 262 Ga. 73, 76-77 (5) (414 SE2d 470) (1992). “It is only where: ‘the nature of the question is such that the factors leading to a conclusion are not known to the common or average man, but are among those things shrouded in the mystery of professional skill or knowledge, . . .’ [cit.], that the opinion or conclusion of an expert should be deferred to as to an ultimate issue.” Id. at 77.

In this case, the factors which led the witnesses to the conclusions that Adams, in association with others, stole money from Keadle, were well within the knowledge and understanding of the jury. It is true that there were some matters that may have been proper for expert testimony, such as explanations of terminology unique to the timber industry and complex questions concerning title to land. It was not necessary, however, for these witnesses to conclusively testify that Adams was part of an enterprise to commit theft from Keadle by selling Keadle timber Adams did not own. The jurors were capable, upon proper instruction from the trial court, of concluding that if Adams took money from Keadle under these circumstances, then he committed the thefts. Similarly, the jurors could conclude that if he acted in association with others, he was part of the enterprise. Here, the State merely employed these two witnesses “to argue and bolster its theory of a case where neither the ultimate issue of fact nor the method of proving that fact [were] beyond the average juror’s comprehension. . . .” Williams v. State, 254 Ga. 508, 511 (2) (330 SE2d 353) (1985).

In addition to finding that the statements constituted improper opinion testimony, we conclude that any probative value of the testimony was substantially outweighed by the danger of unfair prejudice. See Simms v. State, 223 Ga. App. 330 (2) (477 SE2d 628) (1996); United States v. Schmidt, 711 F2d 595, 598-599 (5th Cir. 1983). In some instances, the conclusory statements of guilt were made by a witness who was qualified before the jury as an expert. In light of the unequivocal nature of the witnesses’ conclusions, there was a real danger that the jurors perceived the expert’s testimony as infallible. Moreover, however, the conclusions of guilt were presented prior to the introduction of any primary evidence supporting them. And, although “[t]he trial court may govern the order of proof, [it may not do so] if the weight of proof is prejudicially affected.” Haley v. Oaks Apts., Ltd., 173 Ga. App. 44, 48 (10) (325 SE2d 602) (1984) (physical precedent only). Here, it is highly probable that the jurors were persuaded by this testimony that Adams was guilty, without any admissible evidence of guilt before them. See Carroll, supra. Accordingly, notwithstanding the evidence subsequently presented by the State, we find the admission of this testimony harmful. See id. Adams is entitled to a new trial, and the judgment of conviction is therefore reversed.

6. We now address Adams’ other assertions of error which may be relevant to the retrial of this case. We find no merit in Adams’ assertion that the trial court erred in allowing into evidence declarations of alleged co-conspirators prior to establishing the existence of a conspiracy. This decision falls within the trial court’s discretion concerning the order of proof at trial. Bruce v. State, 263 Ga. 273 (4) (430 SE2d 745) (1993).

7. Adams asserts that the trial court erred in rejecting all of his requested charges and in failing to file his requested charges with the trial court clerk. We find no reversible error.

OCGA § 5-5-24 (b), which governs requests to charge, provides that “[i]n all cases, at the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may present to the court written requests that it instruct the jury on the law as set forth therein. Copies of requests shall be given to opposing counsel for their consideration prior to the charge of the court. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury but shall instruct the jury after the arguments are completed. The trial judge shall file with the clerk all requests submitted to him, whether given in charge or not.” OCGA § 5-5-24 (b) “does not require a judge to accede to a party’s requested charges. . . .” Wozniuk v. Kitchin, 229 Ga. App. 359, 361 (3) (494 SE2d 247) (1997). And, even if the trial judge erred in failing to file Adams’ requested charges with the clerk, Adams has not shown that he was harmed by such error. See Nelson v. Seaboard Coast Line R. Co., 125 Ga. App. 764 (1) (188 SE2d 887) (1972). Indeed, though he was not required to do so, Adams states that he filed the requests with the clerk. Consequently, there can be no harm, hence no error by the trial judge in failing to file the charges.

8. Adams asserts that the trial court erred in refusing to admit into evidence a deposition transcript from a civil case in which co-defendant Joe Garrard provided exculpatory testimony. Adams contends that Garrard was unavailable to testify at trial and that the trial court was therefore required to admit the deposition transcript under OCGA § 24-3-10. We disagree.

OCGA § 24-3-10 provides that “[t]he testimony of a witness . . . inaccessible for any cause which was given under oath on a former trial upon substantially the same issue and between substantially the same parties may be proved by anyone who heard it and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies.” Pretermitting whether Garrard was inaccessible, whether the former civil trial involved substantially the same issue and whether OCGA § 24-3-10 contemplates the introduction of deposition testimony, Adams has not established that the State was a party in the former trial or that the State had an opportunity to cross-examine Garrard at the deposition. See Green v. State, 207 Ga. App. 800, 801 (429 SE2d 169) (1993). Accordingly, the trial court did not abuse its discretion in excluding the prior deposition testimony. Id.

9. Adams asserts that the trial court erred in placing him into custody during a lunch recess. The transcript shows that prior to the recess, the trial judge instructed Adams that a bailiff would accompany him to lunch. Although Adams objected to the court’s decision, there is no evidence that any of the jurors observed him with the bailiff, and Adams did not raise such a contention following the recess. Adams has cited no authority showing error, and in the absence of any evidence that he was prejudiced by the court’s directive, we find no error. See Hill v. State, 193 Ga. App. 401 (8) (387 SE2d 910) (1989).

10. Adams asserts that it was error “for the prosecutor to ask [a] witness to point out and identify Jeff Grant, a bystander in the courtroom, as a co-conspirator in order to imply criminal conduct and association with [Adams] in that [Adams] was not allowed to cross-examine said Jeff Grant.” In support of his assertion, Adams cites to Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). We find no error.

The transcript shows that when Adams objected to testimony concerning Grant elicited during the State’s examination of a witness, the trial court asked if Grant was available to testify. The State’s attorney stated that he was and noted that “he’s sitting right back there in the corner.”

Adams has not shown why the prosecutor’s statement requires reversal. “Bruton applies to situations where there is the ‘admission in a joint trial of a non-testifying co-defendant’s statement incriminating the defendant (thereby) violating the defendant’s right to confront and cross-examine the co-defendant. There is no Bruton violation unless the non-testifying co-defendant’s statement, standing alone, clearly implicates the defendant. (Cit.)’ [Cit.]” (Emphasis omitted.) Slaughter v. State, 227 Ga. App. 739, 742 (3) (c) (490 SE2d 399) (1997). We do not find that simply pointing to a co-defendant in the courtroom under these circumstances is controlled by Bruton, and therefore find no error in the trial court’s failure to grant a mistrial on this ground.

Decided March 17, 1998.

Richard T. Bridges, for appellant.

Thurbert E. Baker, Attorney General, Michael E. Hobbs, Counsel to the Attorney General, Joseph L. Chambers, Patrick D. Peering, for appellee.

11. Although Adams asserts that the trial court erred in closing the courtroom to the public during jury selection, he cites no evidence in support of this assertion and thus presents nothing for our review. See Court of Appeals Rule 27 (c) (3) (i).

Judgment on defendant’s demurrer to the indictment affirmed in part and reversed in part. Judgment of conviction reversed and case remanded for new trial.

Birdsong, P. J., and Eldridge, J., concur.

       A “cruise” is described in the transcript as an estimated value of timber on a tract based on the amount, size, grade and accessibility of the timber.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A97A2440.
    MOSS v. FLAV-O-RICH, INC.
    (498 SE2d 361)
   McMurray, Presiding Judge.

Christina Moss filed a personal injury action against Flav-ORich, Inc. She appealed after a jury returned a verdict in favor of Flav-O-Rich, Inc. Held:

Moss challenges the sufficiency of the evidence in her sole enumeration of error. We are unable to consider this enumeration of error because “ ‘there is no transcript of the proceedings below nor any attempt to recreate the record as contemplated by OCGA § 5-6-41 (g) and (i). In order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings. OCGA § 5-6-41 (c). “Thus, where the transcript is necessary(, as in the case sub judice,) and appellant omits it from the record on appeal (or fails to submit a statutorily authorized substitute), the appellate court must assume the judgment below was correct (as supported by the evidence) and (so) affirm. (Cits.)” Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16).’ Deen v. United Dominion Realty Trust, 218 Ga. App. 443 (1), 444 (462 SE2d 384).” McKinney v. Alexander Properties Group, 228 Ga. App. 77 (491 SE2d 131). Accordingly, due to the absence of a transcript or a statutorily authorized substitute in the case sub judice, we must assume the evidence supported the jury’s verdict.

Decided March 17, 1998.

Miller & Markle, Eric D. Miller, for appellant.

Swift, Currie, McGhee & Hiers, Susan A. Dewberry, Julia B. Haffke, for appellee.

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A97A2476.
    HABIF, AROGETI & WYNNE, P.C. v. BAGGETT et al.
    (498 SE2d 346)
   Beasley, Judge.

Kenneth Baggett, a shareholder and officer in the public accounting firm of Habif, Arogeti & Wynne, P.C. (“HAW”), left HAW to work as an officer, director, and shareholder in the public accounting firm of Reznick, Fedder & Silverman, P.C. (“RFS”). The previous year Baggett had signed an employment agreement with HAW that contained noncompete and nonsolicit covenants as well as a liquidated damages clause. HAW sued Baggett and RFS in several counts, including breach of the noncompete and nonsolicit covenants. The court granted Baggett’s motion for partial summary judgment regarding the alleged breach on the ground the covenants were unenforceable.

The issues are (i) what standard of scrutiny should be used in reviewing noncompete and nonsolicit covenants of shareholders in a professional corporation; (ii) whether the covenants here are enforceable; and (iii) whether the liquidated damages clause is an unenforceable penalty.

1. The Degree of Scrutiny.

Traditionally Georgia courts divide restrictive covenants into two categories for purposes of review: covenants ancillary to an employment contract, which receive strict scrutiny and are not blue-penciled, and covenants ancillary to a sale of business, which receive much less scrutiny and may be blue-penciled.

Citing Rakestraw v. Lanier, the court in Jenkins v. Jenkins Irrigation, stated in dicta that covenants “ancillary to a professional partnership agreement . . . have been treated by this court like employee covenants ancillary to employment contracts.” Five years later the Supreme Court eschewed this approach and adopted a middle category of scrutiny for covenants ancillary to professional partnership agreements. Rash v. Toccoa Clinic Med. Assoc. distinguished employment contracts from partnership agreements, holding that in the latter “the consideration flows equally among the contracting parties. For example, when an employee agrees to subject himself to possible future restrictions, he does so in exchange for the opportunity to have the job. He really gets nothing other than the opportunity to work in exchange for giving up this aspect of his freedom. On the other hand, here a partner has not only restricted himself, but he has also exacted from each of the other contracting parties a like restriction. . . .

“The next distinction between employment agreements and partnership agreements is that it is generally true in the employer/ employee relationship that the employee goes into a transaction such as this at a great bargaining disadvantage. Such would not be expected to be the case in a professional partnership arrangement. . . ” Using a lesser degree of scrutiny (but not the much lesser scrutiny accorded sale of business covenants), Rash found enforceable a covenant not to practice medicine or surgery within a radius of twenty-five miles of the city of Toccoa for three years.

Since Rash, this Court on at least four occasions has stated it was using the lesser degree of scrutiny to analyze noncompete covenants ancillary to professional partnership agreements (or their equivalents, e.g., professional association or professional corporation agreements). Pittman v. Harbin Clinic Prof. Assn exemplified this distinction when it applied lesser scrutiny to uphold the noncompete covenants of the shareholder physicians in the professional association but applied strict scrutiny to strike down the broader covenants of nonshareholder physicians. Pittman also considered it unimportant that the covenants of the shareholders were found in employment agreements separate from the shareholders’ agreement. None of these cases addressed whether covenants falling into this middle category may be blue-penciled or severed.* *****7

At the time he signed the 1994 employment agreement containing the restrictive covenants, Baggett had been with HAW 17 years. He had been a shareholder of HAW for 13 of those years. He was an officer of the corporation and had often served on the firm’s executive committee; in fact, just months prior to the signing he had completed an 18-month term as the managing partner in charge of running the entire firm. He was paid in excess of $300,000 (the second highest paid person in the 130-person firm) and was responsible for originating business in excess of $1.2 million. The other shareholders of HAW agreed to identical restrictive covenants, which inured to Baggett’s benefit. After signing the agreement he continued to enjoy similar responsibilities and benefits. Baggett was in a bargaining position equivalent to that of HAW, which subjects the covenants to the lesser or middle degree of scrutiny.

2. The Covenant Not to Compete.

The noncompete covenant provides: “The Employee covenants and agrees that, for a period of twenty-four (24) months following the effective date of his termination of employment with Corporation, regardless of the reason for such termination and regardless of whether such employment is terminated by the Employee or the Corporation, Employee will not, directly or indirectly, individually or as a partner, corporate employee, stockholder, consultant, officer, director, entity or advisor render or perform Accounting Services’ (as hereinafter defined) within the counties of Fulton, DeKalb, Clayton, Gwinnett, Cobb, Fayette and Douglas in the State of Georgia.”

“Accounting Services” are defined as “those same or similar types of accounting, tax or business services as were rendered or performed by the Employee during the twelve (12) month period immediately prior to the effective date of the termination of the Employee’s employment with the Corporation.”

A contract in general restraint of trade or which tends to lessen competition is against public policy and is void. A restrictive covenant in an employment contract, whether a nonsolicit covenant or a noncompete covenant, is considered in partial restraint of trade and will be enforced if reasonable.* “Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court, which considers the nature and extent of the trade or business, the situation of the parties, and all the other circumstances. A three-element test of duration, territorial coverage, and scope of activity has evolved as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.”

(a) Duration.

A two-year duration is often considered reasonable even under the strict scrutiny for employment covenants not to compete. It is reasonable under the circumstances here.

(b) Territorial Coverage.

Baggett argues the seven-county limitation is unreasonable because, he claims, in the two years before he left HAW he performed no work in two of the counties (Clayton and Douglas) and he performed only a nominal amount of work in DeKalb County. He contends the seven counties simply represent the area serviced by HAW generally, not by him personally. But during his career at HAW Baggett indisputably worked in all seven counties and in many other areas throughout the country and Georgia. There was also some evidence he worked in the three disputed counties during the two years prior to his departure.

Sysco Food Svcs. v. Chupp held a similar covenant enforceable under the strict scrutiny standard. The covenant restricted activities in eleven counties, including two counties where the employee had not worked during his last eighteen months of employment. Upholding the covenant, Sysco Food Svcs. explained: “The goal of a non-competition covenant is to balance two competing rights: first, the employee’s right to earn a living and his ability to determine with certainty the prohibited territory; second, the employer’s interest in customer relationships created or furthered by its former employee on its behalf and its right to protect itself from the former employee’s possible unfair appropriation of contacts developed while working for the employer. Under this analysis, an employer is permitted to include in such a covenant the territory in which the employee has in fact performed work, thus protecting itself from the unfair appropriation of good will and information acquired in the course of that work. The fact that Chupp’s territory had not included two of the counties listed for approximately 18 months does not, of itself, render the agreement void for overbreadth.

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

Sysco Food Svcs. is consistent with Nat. Settlement Assoc. v. Creel, which held reasonable a territorial restriction in an employment contract that forbade competition in a radius of 200 miles of Atlanta. Creel explained that the employee worked in a “substantial portion” of the territory. Taken to its logical conclusion, Baggett’s argument would suggest that even if the restricted territory were only a single county, an employee could validly argue that although he worked throughout the county generally, he did not work in every municipality, precinct, or neighborhood in the county; thus, the restriction would be unenforceable. This is untenable. Even under strict scrutiny, restricting competition in seven contiguous counties in which the employee had worked at some point is reasonable, particularly where he had worked in a substantial portion of the seven-county area during the two years before his departure.

Cases decided under the lesser scrutiny of partnership agreements have consistently upheld territorial restrictions expressed in terms of a certain number of miles radius of a city, even though the court cited no evidence that the departing partner worked in every nook and cranny of the forbidden area. Unlike Rollins Protective Svcs. v. Palermo, cases using this lesser scrutiny have also focused on whether the restricted area coincides with the territory served by the employer, not by the employee. It is undisputed HAW did business throughout the seven counties.

Finally, Rash emphasized that, as here, the departing partner expressly agreed “that the covenant was ‘reasonable’ and that breach of the covenant ‘would work harm’ to the partnership. It is the policy of this state to uphold and protect valid contractual rights and obligations.”

(c) Scope of Activity.

Baggett was prohibited from rendering or performing the same or similar types of accounting, tax, or business services as he rendered or performed during his last year with HAW. Even under the strict scrutiny standard, noncompete covenants restricting an employee from rendering the same or substantially similar services he or she rendered at the former employer are generally reasonable.

The restricted activities must be reasonably related to the business interests the employer seeks to protect. Baggett is prohibited from providing accounting, tax, and business services for any organization, regardless of whether that organization is in competition with HAW or not. As conceded by HAW’s 30 (b) (6) representative, Baggett would be prohibited from serving in-house as a chief financial officer for the Coca-Cola Company or for the Varsity restaurant in Fulton County. In such a position he would be rendering similar accounting, tax, and business services for those companies. Yet Coca-Cola, a soft drink company, and the Varsity, a fast food restaurant, are not in competition with HAW for public accounting services. Where courts have held an employee may reasonably be restricted from performing the same services, the contracts in those cases pertained only to services performed for potential competitors.

But the strict scrutiny standard does not apply here. Cases applying lesser scrutiny have upheld covenants prohibiting physicians from practicing any kind of medicine in the restricted area, even though it was not limited to practicing medicine for competing organizations. In comparison, the much lesser scrutiny afforded sale of business contracts would allow the covenant to restrict the defendant from working in the specified business area for any organization in any capacity.

Citing. Singer v. Habif, Arogeti & Wynne, P.C.; Dougherty, McKinnon & Luby; and American Gen. Life &c. Ins. Co. v. Fisher, Baggett argues that the noncompete covenant prevented him from accepting unsolicited business and thus impinged on the public’s ability to choose the professional services it prefers. All three of these cases were covenant not to solicit cases, not covenant not to compete cases. Baggett misapprehends the fundamental distinction between these two types of covenants and how they are analyzed.

A covenant not to compete, which is designed primarily to protect the employer’s “investment of time and money in developing the employee’s skills,” prohibits the employee from performing competitive activities in a certain geographic area for a limited time. A covenant not to solicit, which is designed primarily to protect the employer’s investment of time and money in developing customer relationships, prohibits an employee from soliciting the employer’s clients for a limited time and only requires a territorial restriction if the forbidden clients include the clients with whom the employee did not have a relationship prior to his departure.

Based on these distinctions, the enforceable limits on what these two covenants may prohibit are somewhat different. A covenant not to compete by definition may preclude the employee from accepting related business (whether solicited or not) from any clients (whether previously contacted by him or not) if the employee is officed in, or is to perform the restricted activities in, the forbidden territory. A covenant not to solicit, on the other hand, may preclude the employee from soliciting the employer’s clients (possibly just those clients located in a limited territory if the covenant does not restrict the forbidden clients to those whom the employee had encountered while at the employer), but it may not preclude the employee from accepting unsolicited business from those clients.

Vortex Protective Svc. v. Dempsey and Darugar v. Hodges confused these distinctions and analyzed covenants not to compete under the criteria applicable to covenants not to solicit. The cases focused on the failure of the noncompete covenants to apply only to clients with whom the employee had had contact, and on the inability of the employee to accept business from unsolicited clients. Such an analysis applies to covenants not to solicit, not to covenants not to compete. Chaichimansour v. Pets Are People Too, No. 2, subsequently overruled Darugar and Vortex, holding that a noncompete covenant could validly preclude “competition with respect to clients with whom the employee had not had contact while working for the employer.” Chaichimansour held valid a covenant not to compete precluding the employee from working as a veterinarian in a limited territory, even though such necessarily prevented the employee from accepting unsolicited business.

Rash reasoned: “If it be argued that the enforcement of this restrictive covenant would be contrary to public policy because it would limit the right of potential patients in the Demorest and Habersham County area to avail themselves of Dr. Rash’s services, it can be argued with at least equal conviction that this would afford countless other people in other areas, both in and outside of the state, the opportunity to have a physician in their areas. There is no reason to conclude that the obstetrical and gynecological needs of persons within a 25-mile radius of Toccoa are any greater than in many other areas of this and other states, nor is there any reason to conclude that the need for the appellant’s services, in the context of this case, is sufficient to outweigh the law’s interest in upholding and protecting freedom to contract and to enforce contractual rights and obligations.”

Citing Rash, Delli-Gatti stated “the local public could still visit [employee] should she elect to practice in the counties adjoining [the forbidden territory].” The defendant employee may even make phone calls into the proscribed area from her office outside the area. The key in covenant not to compete cases is that the forbidden services or activities cannot be performed in a certain territory; it is not relevant who the clients are or what activities, whether soliciting or otherwise, occur outside the territory.

The court erred in holding the covenant not to compete unenforceable.

3. The Covenant Not. to Solicit.

The nonsolicit covenant provides: “The Employee covenants and agrees that, for a period of twenty-four (24) months following the effective date of his termination of employment with Corporation, regardless of the reason for such termination and regardless of whether such employment is terminated by the Employee or the Corporation, Employee will not, directly or indirectly, on Employee’s own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise, take any action to divert, solicit, or contact any ‘Client’ (as hereinafter defined) for the purpose of rendering or performing or with a view to rendering or performing ‘Accounting Services.’ ”

“Client” is defined as “any one or more persons, firms, trusts, partnerships, corporations, or other entities for whom or for which the Employee rendered or performed Accounting Services’ during the twelve (12) month period immediately prior to the effective date of the termination of the Employee’s employment with the Corporation, which accounting services so rendered or performed by the Employee entitled the Employee . . . to a credit of five percent (5%) or more of the total ‘Billings’ to such client. . . .”

The trial court held the covenant not to solicit unenforceable on the ground the covenant not to compete was unenforceable. Viewed on its own merits, the covenant not to solicit is enforceable.

(a) Duration.

Even under strict scrutiny, a two-year limitation in a covenant not to solicit has been held reasonable. It is reasonable in this instance.

(b) Territorial Coverage.

When strictly scrutinized, a covenant not to solicit is generally valid if it prohibits soliciting clients of the employer whom the employee had contacted during her employment with the employer, regardless of whether it has a territorial restriction. If .the covenant prohibits soliciting all clients of the employer, then it must have a territorial restriction “specified and closely tied to the area in which the employee actually worked.”

Because Baggett’s covenant was subject to the lesser degree of scrutiny, and because it prohibited solicitation only of the clients of HAW for whom Baggett had done substantial work, it could lack a territorial restriction and still be valid.

(c) Scope of Activity.

Upon the application of strict scrutiny, prohibiting the solicitation and diversion of clients is reasonable as is prohibiting the contact of clients. Such verbs, particularly when preceded by the phrase “take any action to,” require some affirmative, initiating action by Baggett, and would not preclude him from accepting unsolicited business from the forbidden clients.

Because both the noncompete and the nonsolicit covenant are enforceable, it is unnecessary to determine whether the restrictive covenants in this agreement may be blue-penciled.

4. The Liquidated Damages Clause.

The clause provides: “The Corporation and the Employee acknowledge and agreé that the injury and/or damages caused by the breach or threatened breach of the covenants [not to compete and not to solicit] will be difficult, if not impossible, to accurately estimate. As such, Employee covenants and agrees that if he violates the covenants [not to compete or not to solicit], the Corporation shall be entitled to an accounting and payment by Employee to Corporation, as liquidated damages, of all compensation, commissions, remuneration, or other benefits that Employee directly or indirectly has realized and/or may realize as a result of, growing out of, or in connection with, any such violation. In addition to the accounting and payment as provided in the immediately preceding sentence, if a violation of the covenants [not to compete or not to solicit] are in connection with or with regard to a ‘Client’, the Employee, in addition to the payment as provided in the immediately preceding sentence, shall also pay to Corporation, as liquidated damages, an amount equal to one and one-half (1-1/2) times all fees billed by Corporation . . . for accounting services . . . rendered to the Client during the twelve (12) month period immediately prior to the effective date of the termination of the Employee’s employment with the Corporation.” The agreement provides that this clause is severable if declared invalid.

The court held that the liquidated damages clause was itself a restrictive covenant and therefore was to be stricken on the grounds the noncompete provision was unenforceable. The court also held that even if not a restrictive covenant, the clause was an unenforceable penalty.

Unlike the liquidated damages clause in Dougherty, McKinnon & Luby this clause does not contain a restrictive covenant within its terms. It simply sets forth one form of damages HAW could pursue if Baggett violated the covenant not to compete or the covenant not to solicit. The court erred in holding the clause itself was a restrictive covenant.

On the other hand, the court correctly determined the clause was a 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.”

Under the clause, if Baggett violates the covenant not to solicit by contacting an HAW client with a view to providing accounting services, he must pay HAW 150 percent of that client’s prior year’s billings at HAW, even if he is unsuccessful in persuading the client to leave HAW. Under this scenario, even though HAW would have experienced no actual damages, it would be entitled to the liquidated damages. The entire provision is an unenforceable penalty. The remainder of the contract stands.

5. Other Motions.

Presumably because it found the noncompete covenant unenforceable, the court did not rule on HAW’s motion for partial summary judgment that Baggett had violated that covenant. Baggett, who operates out of an office in Forsyth County, has testified he has performed no accounting, tax, or business services in the forbidden counties. There is also evidence he has. There is no ruling by the trial court for us to review.

The court did deny that portion of HAW’s motion for partial summary judgment as to Baggett’s breach of the 60-day notice provision in his employment contract, correctly determining that there are questions of material fact on this issue. Although Baggett gave the 60-day notice, there is evidence HAW immediately (i) asked him not to return to the office, (ii) terminated his secretary, (iii) changed the office’s locks and access code, and (iv) informed the clients whom Baggett serviced that he had resigned. Baggett claims these actions amounted to a constructive discharge and waiver of the 60-day notice. A jury must decide.

The court granted defendants’ motion for partial summary judgment as to any claims for RFS’ alleged breach of fiduciary duties, and it denied summary judgment to defendants as to any claims for Baggett’s breach of fiduciary duties. These portions of the judgment stand unreviewed, as they are not enumerated as error.

Judgments affirmed in part and reversed in part.

Andrews, C. J.,

Birdsong, P. J., Smith, Ruffin and Eldridge, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgment of reversal in this action to enforce noncompetition provisions in a written contract of professional employment brought by the plaintiff accounting firm, Habif, Arogeti & Wynne, P.C. (“HAW”) against defendant Kenneth E. Baggett and his new employer, the Maryland accounting firm Reznick, Fedder & Silverman, P.C. (“RFS”). Pretermitting whether the case sub judice is controlled adversely to plaintiff by the decision of the Supreme Court of Georgia in Singer v. Habif, Arogeti & Wynne, P.C., 250 Ga. 376 (1) (297 SE2d 473), my view of the proper judgment is merely to vacate the decision of the trial court and remand for reconsideration of defendants’ motion for summary judgment in light of this Court’s most recent authorities.

HAW alleged that defendant Baggett breached his contract and fiduciary duties of loyalty and good faith, “acting individually and in concert and collusion with [RFS], [in that he] conspired to and did contact, solicit, and divert both employees and clients of HAW. . . .” The complaint further alleges that defendant Baggett “fail[s] to devote his full time and best efforts to the practice of public accounting on behalf of HAW, and has accepted other gainful employment with [RFS], without the consent of HAW, and despite the fact he is still an employee of HAW.” RFS allegedly “wrongfully interfered in the contractual relations between HAW and its key clients and employees, . . . encouraging defendant] Baggett and other HAW employees, to breach their fiduciary duties and contractual obligations to HAW. . . .” Count 2 alleges defendant Baggett fraudulently continued to accept compensation from HAW without the present intent to fulfill his contractual obligations. Count 3 alleges that defendant Baggett breached the duties of utmost trust, loyalty and good faith owed to HAW in Baggett’s roles as an agent for, shareholder in, and officer of the professional corporation. Count 4 alleges conspiracy; Count 5 alleges tortious interference with contractual relations; and Count 6 seeks punitive damages and attorney fees.

The employment contract contained the following paragraph: “10 . . . RESTRICTIVE COVENANT ... (a) In express consideration of the covenants and agreements contained herein, and as an essential part of the consideration to induce the Corporation to enter into this Contract with Employee [defendant Baggett,] Employee covenants and agrees as follows . . . (i) The Employee covenants and agrees that, for a period of twenty-four (24) months following the effective date of his termination of employment with Corporation, regardless of the reason for such termination and regardless of whether such employment is terminated by the Employee or the Corporation, Employee will not, directly or indirectly, individually or as a partner, corporate employee, stockholder, consultant, officer, director, entity or advisor render or perform Accounting Services’ (as hereafter defined) within the counties of Fulton, DeKalb, Clayton, Gwinnett, Cobb, Fayette and Douglas in the State of Georgia.” Subpart 10 (a) (ii) contained defendant Baggett’s promise not to “take any action to divert, solicit, or contact any ‘Client’ (as hereafter defined) for the purpose of rendering or performing or with a view to rendering or performing Accounting Services.’” Defendant Baggett expressly “acknowledge^] that the restrictive covenants contained in this sub-paragraph 10 (a) will not constitute a total restraint on the Employee’s ability to earn a living. . . . The term ‘Client’ shall mean and include any one or more persons, firms, trusts, partnerships, corporations, or other entities for whom or for which the Employee rendered or performed Accounting Services’ during the twelve (12) month period immediately prior to the effective date of the termination of the Employee’s employment with the Corporation,” where defendant Baggett’s accounting services amounted to “five percent (5%) or more of the total ‘Billings’ to such client. . .” for the immediately preceding fiscal year. Subparagraph 10 (f) provides that, in the event defendant Baggett violates the restrictive covenants, plaintiff HAW shall be entitled to “all compensation, commissions, remuneration, or other benefits . . .” realized by defendant Baggett as liquidated damages. As additional liquidated damages respecting a breach of the restrictive covenant involving a former HAW client, defendant Baggett agreed to pay “an amount equal to one and one-half (1-1/2) times all fees billed . . .” by plaintiff HAW for the 12-month period immediately preceding defendant Baggett’s termination.

Decided March 17, 1998

Alembik, Fine & Callner, Lowell S. Fine, for appellant.

Alston & Bird, Lisa H. Cassilly, Robert H. Buckler, for appellees.

Defendants’ joint answer denied the material allegations but admitted the chronology of events, whereby defendant Baggett properly terminated his former employment relation with plaintiff by giving on July 1, 1995, the 60 days written notice contemplated in the 1994 written employment agreement. Defendants contended that plaintiff itself breached the written agreement upon receipt of his written termination, constructively firing defendant Baggett by firing his secretary, informing his clients that he had left the firm, and informing him not to return to the HAW offices. In answers to interrogatories, defendants further admitted that defendant Baggett “is an employee and equity principal of [defendant] RFS[,] at its office located at 107 West Courthouse Square, Cummings [sic], Georgia. ... In addition to [defendant] Baggett, some other former employees of Plaintiff are currently employed by [defendant] RFS. . . . Similarly, some former clients of Plaintiff are currently clients of RFS.”

Relying on Vortex Protective Svc. v. Dempsey, 218 Ga. App. 763 (463 SE2d 67), the trial court concluded the restrictive covenants are overbroad and granted defendants’ motion for summary judgment. This appeal followed.

The judgment of the trial court should, in my view, be vacated and the case remanded for reconsideration of the motion for summary judgment in light of the recent whole court decision in Chaichimansour v. Pets Are People Too, No. 2, 226 Ga. App. 69 (485 SE2d 248), cert, denied, where this Court affirmed the validity of a restrictive covenant involving members of a learned profession entered into among parties of roughly equal bargaining power. But it is further my view that, the applicability of this recent authority is not necessarily dispositive of whether all the noncompetition provisions in the case sub judice should be enforced, and so I respectfully dissent from the judgment of outright reversal.

        Watson v. Waffle House, 253 Ga. 671 (2) (324 SE2d 175) (1985); Jenkins v. Jenkins Irrigation, 244 Ga. 95, 97-99 (2) (259 SE2d 47) (1979); see Johnstone v. Tom’s Amusement Co., 228 Ga. App. 296, 299 (3) (491 SE2d 394) (1997) (physical precedent only). Compare Richard P. Rita Personnel &c. v. Kot, 229 Ga. 314 (191 SE2d 79) (1972) (employment standard) with Carroll v. Ralston & Assoc., P.C., 224 Ga. App. 862 (481 SE2d 900) (1997) (sale of business standard).

       104 Ga. 188 (30 SE 735) (1898).

       244 Ga. at 97-98 (2).

       253 Ga. 322, 324-326 (2) (320 SE2d 170) (1984).

       Id. at 325.

       See Delli-Gatti v. Mansfield, 223 Ga. App. 76, 80-81 (3) (477 SE2d 134) (1996) (employment agreement had partnership option and therefore received less scrutiny); McAlpin v. Coweta Fayette Surgical Assoc., P.C., 217 Ga. App. 669, 672 (2) (458 SE2d 499) (1995) (employment agreement contemplated partnership and thus received less scrutiny); Pittman v. Harbin Clinic Prof. Assn., 210 Ga. App. 767, 769 (1) (437 SE2d 619) (1993) (covenants of shareholders in professional association received less scrutiny); Roberts v. Tifton Med.

        Clinic, P.C., 206 Ga. App. 612, 615-616 (426 SE2d 188) (1992) (employment agreements of shareholders in professional corporation received less scrutiny). Cf. Dougherty, McKinnon & Luby, P.C. v. Greenwald, Denzik & Davis, P.C., 213 Ga. App. 891 (447 SE2d 94) (1994) (court did not expressly reference lesser degree of scrutiny in reviewing covenants of professional corporation shareholders; however, covenant was so broad that it would not have survived under either standard).

       210 Ga. App. at 769-771.

       See Roberts, 206 Ga. App. at 617 (“we need not decide whether it can or should be severed”).

       See generally Watson, supra, 253 Ga. at 672 (the key inquiry in determining the level of scrutiny is the relative bargaining power of the parties).

       Ga. Const, of 1983, Art. III, Sec. VI, Par. V (c); OCGA § 13-8-2.

        W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992).

       (Citations and punctuation omitted.) Id.; see Watson, supra, 253 Ga. at 673.

       See, e.g., American Software USA v. Moore, 264 Ga. 480 (1) (448 SE2d 206) (1994) (two-year duration reasonable, but not territorial limitation); Chaichimansour v. Pets Are People Too, No. 2, 226 Ga. App. 69 (485 SE2d 248) (1997) (two-year duration upheld); Saxton v. Coastal Dialysis &c. Clinic, 220 Ga. App. 805, 809 (3) (470 SE2d 252) (1996) (two-year duration upheld).

       See Rollins Protective Svcs. v. Palermo, 249 Ga. 138, 140 (1) (287 SE2d 546) (1982) (emphasizing difference between employee’s territory and employer’s territory).

       225 Ga. App. 584, 586 (1) (484 SE2d 323) (1997).

       (Citations omitted.) Id. at 586-587.

       256 Ga. 329, 331 (3) (b) (349 SE2d 177) (1986).

       Id. at 331; see Pierce v. Industrial Boiler Co., 252 Ga. 558, 559 (1) (315 SE2d 423) (1984) (upholding 120-mile limitation because it pertained to the employee’s territory).

        See Rash, supra, 253 Ga. at 323-324 (1) (upholding 25-mile radius); McAlpin, 217 Ga. App. at 673 (2) (upholding ten-county restriction); Pittman, supra, 210 Ga. App. at 769 (1) (upholding 30-mile radius).

       Supra.

        Rash, supra; McAlpin, 217 Ga. App. at 673 (employer had patients in all ten counties); Pittman, supra, 210 Ga. App. at 769 (the territory limited itself to the counties from which the employer drew its clients).

       253 Ga. at 326 (3).

        Sysco Food Svcs., supra, 225 Ga. App. at 585-586 (1); Electronic Data Systems Corp. v. Heinemann, 217 Ga. App. 816, 820 (8) (459 SE2d 457) (1995); Moore v. Preferred Research, 191 Ga. App. 26 (1) (381 SE2d 72) (1989).

        Moore, supra, 191 Ga. App. at 27.

       See Sysco Food Svcs., supra, 225 Ga. App. at 584 (“competing business”); Moore,
        supra, 191 Ga. App. at 26 (“similar business”).

       See Delli-Gatti, supra, 223 Ga. App. at 79 (3); McAlpin, supra, 217 Ga. App. at 670; Pittman, supra, 210 Ga. App. at 769 (1).

        Dalrymple v. Hagood, 246 Ga. 235 (271 SE2d 149) (1980).

       250 Ga. 376, 377 (1) (297 SE2d 473) (1982).

       Supra, 213 Ga. App. at 894 (2) (b).

       208 Ga. App. 282, 283-284 (1) (430 SE2d 166) (1993).

        Pierce v. Industrial Boiler Co., supra, 252 Ga. at 559 (1).

       See Singer, supra, 250 Ga. at 377.

        Mouyal, 262 Ga. at 467-468.

       218 Ga. App. 763 (463 SE2d 67) (1995).

       221 Ga. App. 227, 229 (471 SE2d 33) (1996).

       (Citations omitted.) 226 Ga. App. at 70.

       (Citation omitted.) 253 Ga. at 326.

       223 Ga. App. at 80.

       See McAlpin, 217 Ga. App. at 674 (employee may treat former patients from the proscribed area so long as the treatment is done outside the proscribed area).

        Pittman, supra, 210 Ga. App. at 769.

       See also McAlpin, supra, 217 Ga. App. at 673 (upholding covenant not to practice medicine or surgery in ten counties); Pittman, supra, 210 Ga. App. at 769 (upholding covenant not to practice medicine in 30-mile radius of Rome). Compare Fisher, supra, 208 Ga. App. at 283-284 (striking down covenant not to solicit that prevented employee from accepting unsolicited applications).

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

        Mouyal, supra, 262 Ga. at 468.

        Chaichimansour, supra, 226 Ga. App. at 71.

       See Mouyal, 262 Ga. at 464 (“solicit, contact”); Singer, 250 Ga. at 377 (“solicitation or diversion of clients”); Marcoin, Inc. v. Waldron, 244 Ga. 169, 171 (259 SE2d 433) (1979) (“solicit” or “divert”); Sysco Food Sues., 225 Ga. App. at 584 (“solicit or attempt to divert”); Paul Robinson, Inc. v. Haege, 218 Ga. App. 578 (462 SE2d 396) (1995) (“would not contact any customer”).

       See Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (455 SE2d 601) (1995) (solicit means to take affirmative action). Compare Singer, supra, 250 Ga. at 377 (covenant not to solicit struck down because it expressly prohibited employee from accepting unsolicited business); Fisher, supra, 208 Ga. App. at 283-284 (same).

       See Roberts, 206 Ga. App. at 617.

       213 Ga. App. at 891-892.

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

       See Kem Mfg. Corp. v. Sant, 182 Ga. App. 135,140 (4) (355 SE2d 437) (1987) (in a severable contract, the failure of a distinct part does not void the remainder).

        Alcovy Properties v. MTW Investment Co., 212 Ga. App. 102, 103 (2) (441 SE2d 288) (1994).


text:
    A97A2543.
    SANDERS et al. v. COWART et al.
    (499 SE2d 103)
   McMurray, Presiding Judge.

Brenda J. Sanders was dazed during an eye examination when Dr. Dennis Cowart’s examination lamp collapsed on her head. Ms. Sanders went to a local hospital the next day, but was discharged after a hospital physician concluded that Ms. Sanders’ skull was not damaged. Months later, Ms. Sanders went to Dr. Alfred Avery complaining of chronic headaches and other neurological problems. Dr. Avery concluded that Ms. Sanders’ problems were consistent with “post-traumatic” nerve damage, which is “most likely secondary to a combination of a preexisting cervical degenerative disease and muscle spasm.” After months of therapy and testing, Dr. Avery confirmed that Ms. Sanders suffers with “chronic degenerative disc disease in her neck” and discovered that she has “cerebral vascular insufficiency or the beginning of small strokes.”

Ms. Sanders and her spouse, John D. Sanders, filed an action against Dr. Cowart, individually and d/b/a Bremen Eye Clinic, alleging that Dr. Cowart’s negligence was a proximate cause of her neurological injuries. Dr. Cowart testified at a jury trial and admitted that he had problems with his examination lamp several months before it collapsed on Ms. Sanders. Dr. Cowart explained that a weak screw was the problem and that he mended this defect by periodically tightening the screw with a coin. The jury also heard Dr. Avery’s deposition testimony that an injury at the base of Ms. Sanders’ skull aggravated Ms. Sanders’ degenerative disc disease and caused nerve . damage which is the source of Ms. Sanders’ pain. The jury, however, did not hear Dr. Avery’s testimony that Ms. Sanders suffered several “small strokes.” The trial court granted Dr. Cowart’s motion in limine to exclude this evidence because Dr. Avery opined in his deposition that the vascular ruptures in Ms. Sanders’ brain were probably not caused by the sort of trauma Ms. Sanders experienced at Dr. Cowart’s eye clinic.

The jury returned a verdict for Dr. Cowart. This appeal followed the denial of the Sanderses’ motion for new trial. Held:

1. The Sanderses challenge the trial court’s exclusion of Dr. Avery’s testimony regarding Ms. Sanders’ “small strokes,” arguing that the cause of these injuries should have been submitted to the jury because Dr. Avery admitted a possibility that these vascular ruptures may have been the result of the sort of trauma Ms. Sanders experienced at Dr. Cowart’s eye clinic. This assertion is without merit because “a possibility that the alleged negligence caused [Ms. Sanders’ ‘small strokes’] is not sufficient to establish proximate cause. Goggin v. Goldman, 209 Ga. App. 251, 253 (433 SE2d 85) (1993); see also Grantham v. Amin, 221 Ga. App. 458 (471 SE2d 525) (1996) (expert’s statement that negligence ‘could have been a significant contributing cause’ of death was not sufficient). Certainty is not required, but the plaintiff must show a probability rather than merely a possibility that the alleged negligence caused the injury. . . . See Hawkins v. Greenberg, 166 Ga. App. 574, 577 (1) (a) (304 SE2d 922) (1983) (expert’s testimony that injury was ‘most likely’ caused by alleged negligence was sufficient).” Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608 (484 SE2d 257). And contrary to the Sanderses’ assertion in the case sub judice, this holding does not conflict with Lee v. Satilla Health Svcs., 220 Ga. App. 885 (470 SE2d 461).

Lee is a misdiagnosis case where the issue of proximate cause was allowed to go to a jury even though, like in the case sub judice, the consequences of the defendant’s alleged negligence were medically uncertain. But unlike the case sub judice, there was expert testimony in Lee indicating a detailed and articulate probability that the defendant’s negligence exacerbated the plaintiff’s injuries. In the case sub judice, Ms. Sanders’ physician, Dr. Avery, explained why such probabilities do support a conclusion that Ms. Sanders’ vascular problems were not caused by the sort of trauma she experienced at Dr. Cowart’s eye clinic. He testified that only obvious cranial swelling, unlike that suffered by Ms. Sanders, could have caused the vascular ruptures that were discovered in Ms. Sanders’ brain. Dr. Avery testified that “[t]he role that [Ms. Sanders’] head trauma probably played was to bring her to medical attention because of exacerbation of symptoms of her chronic degenerative disc disease in her neck.” These circumstances demonstrate that the Sanderses failed to carry their burden of proof regarding the proximate cause of Ms. Sanders’ “small strokes.” See Goggin v. Goldman, 209 Ga. App. 251, 253, supra. Accordingly, the trial court did not err in granting Dr. Cow-art’s motion in limine.

2. The Sanderses contend Dr. Cowart’s admission that he did not have his examination lamp professionally repaired when he first learned that it was defective (several months before it fell on Ms. Sanders) demands a verdict in their favor. This assertion is without merit.

“ ‘A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.’ (Citations, punctuation and emphasis omitted.) Estfan v. Poole, 193 Ga. App. 507, 509 (1) (c) (388 SE2d 373). ‘On appeal, this court must construe the evidence most strongly to support a verdict and judgment, (cit.), and every presumption and inference must be in favor thereof.’ In the Interest of E. P. N., 193 Ga. App. 742, 747 (2) (388 SE2d 903). Further, it is not the function of an appellate court to weigh the evidence or to judge witness credibility (Homey v. Lawrence, 189 Ga. App. 376, 377 (3) (375 SE2d 629)); the jury resolves conflict in testimony and this court will not substitute its judgment for that of the jury. Dade v. Dade, 213 Ga. 533 (1) (100 SE2d 181).” Peters v. Davis, 214 Ga. App. 885 (1) (449 SE2d 624). In the case sub judice, there is no indication that Dr. Cowart’s efforts to maintain his examination lamp were unreasonable, as a matter of law. But even assuming otherwise, the evidence does not demand a finding that such negligence was a proximate cause of Ms. Sanders’ neurological difficulties. The jury may have totally disregarded the Sanderses’ evidence regarding the consequences of the examination lamp’s impact on Ms. Sanders’ head.

Decided March 17, 1998.

Evan L. Stapler, for appellants.

Tisinger, Tisinger, Vance & Greer, Brian L. Howell, for appellees.

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Birdsong, Presiding Judge. Eldridge, Judge,

text:
    A97A1905.
    SELLERS v. AIR THERM COMPANY, INC.
    (498 SE2d 167)
   Birdsong, Presiding Judge.

Jackie G. Sellers appeals the grant of summary judgment to Air Therm Company, Inc., in her action seeking damages arising from a motor vehicle accident in which her vehicle was run off the road by a hit-and-run driver. Sellers’ complaint alleged that the other vehicle was owned and operated by Air Therm, but in its answer Air Therm denied this allegation.

At her deposition Sellers testified that she had been driving in a traffic lane next to a white van for some time when suddenly the van pulled into her lane because a car ahead of the van had slammed on its brakes. To avoid hitting the van, Sellers jerked her car to the right, but she ran off the road and struck a tree. Sellers also testified that, after stopping momentarily, the van fled the scene of the accident, and, even though the van was pursued by the police, Sellers’ briefs in this Court and the court below acknowledge that the van was “never positively identified.”

Sellers testified that the vehicle that ran her off the road was a white service van with red writing on both sides. The writing said in big, bold, red or burnt orange letters “Air Therm.” The van also had a Georgia license plate that was issued in Chatham County, but Sellers did not recall the letters or numbers on the license plate. Further, also Sellers testified that she saw that the van was being driven by a white male with dark brown hair.

Based on Sellers’ deposition testimony, Air Therm moved for summary judgment contending that there was no evidence that it owned the van in question and also contending that there was no evidence that the van was being operated by an employee or agent of Air Therm who was acting within the course and scope of his or her employment. In her response to Air Therm’s motion, Sellers provided no additional evidence, but instead argued that a jury issue was presented because she “positively identified [d]efendant’s name and logo on the back of the white van which forced her off the road,” and Air Therm “denied having a vehicle in the area at the time of the accident.” After the trial court granted Air Therm’s motion for summary judgment, Sellers appeals. Held:

The issue in this appeal concerns the nature of proof required to sustain a verdict in a hit-and-run vehicle collision in which the only evidence supporting the plaintiff’s claim is the plaintiff’s testimony that, by her visual observation only, the hit-and-run vehicle had the distinctive insignia of the defendant. Acknowledging that the law in this State on this point holds that this testimony is insufficient (see, e.g., McCoy v. Southern Bell Tel. &c. Co., 172 Ga. App. 26 (322 SE2d 76); Burns v. United Parcel Svc., 135 Ga. App. 890 (219 SE2d 624)), Sellers asks us to reconsider our earlier precedents.

We have done so and find unpersuasive Sellers’ argument that these cases should be overruled because they encourage drivers involved in accidents to flee the scene. There is no evidence that in the many years these cases and the other cases that preceded them have been the law the number of hit-and-run accidents has increased. Further, although we appreciate the harsh effect this law may have in an individual case, we must balance that effect against the impact of imposing liability based merely upon testimony that a company’s name was observed on a vehicle that allegedly caused an accident. Therefore, we decline to overrule these and the other precedents upon which these cases are based. Accordingly, this appeal is controlled by McCoy v. Southern Bell Tel. &c. Co., supra, and Burns v. United Parcel Svc., supra, and the trial court did not err by granting summary judgment to Air Therm Company, Inc.

Although the dissent would distinguish McCoy v. Southern Bell Tel. &c. Co. and Burns v. United Parcel Svc. because those cases concerned appeals from the grants of directed verdicts and not the grant of summary judgment as in the present appeal, we find no basis for such a distinction.

“A motion for summary judgment is analogous to a motion for a directed verdict. OCGA § 9-11-50. The function of the trial court in ruling on either requires the trial court to determine whether the movant is entitled to a judgment as a matter of law on the facts established and whether there is a genuine issue as to any material fact. OCGA §§ 9-11-56; 9-11-50; Standard Accident Ins. Co. v. Ingalls Iron Works Co., 109 Ga. App. 574, 575 (136 SE2d 505) (1964). If the movant can show the court that any essential element, under any theory of recovery, is missing and incapable of proof, the movant is entitled to summary judgment as a matter of law, notwithstanding any issue of material fact regarding any other essential element. Waldrep v. Goodwin, 230 Ga. 1, 2 (195 SE2d 432) (1973). When a motion for summary judgment is made and properly supported, the opposing party must respond and set forth specific facts showing a genuine issue for trial or else summary judgment, if appropriate, shall be entered. OCGA § 9-11-56 (e); Meade v. Heimanson, 239 Ga. 177, 178 (236 SE2d 357) (1977). Summary judgment was designed to enable the trial judge to filter out sham issues which may cause needless and time-consuming litigation. ‘The trial judge must separate what is formal or pretended in denial or averment from what is genuine or substantial, so that only the latter may subject a party to the burden of a trial.’ Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (126 SE2d 442) (1962).” Porter v. Felker, 261 Ga. 421, 422 (405 SE2d 31). “‘(S)ummary judgment may be granted on evidence that would compel the direction of a verdict; and should be denied when a directed verdict would be improper.’ 6 Moore’s Federal Practice, Para. 56.15E4], p. 56-522.” Eiberger v. West, 247 Ga. 767, 769 (281 SE2d 148). Further McCoy and Burns do not hold, as the dissent suggests, that a directed verdict is appropriate only after the defendant puts in evidence disputing ownership and agency.

Although a plaintiff responding to a motion for summary judgment generally is not required to establish a prima facie case of liability, in the instant case, because of the basis for Air Therm’s motion for summary judgment, Sellers was required to “point to specific evidence giving rise to a triable issue” (Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)) on whether Air Therm owned the van that ran Sellers off the road and whether the driver of the van was an employee or agent of Air Therm and was driving the vehicle in the course and scope of his employment. Of course, the failure to provide such evidence in this instance would also constitute the failure to establish Sellers’ prima facie case.

Additionally, contrary to the dissent’s position, Sellers’ testimony regarding the painting on the van is not specific evidence giving rise to a triable issue as to ownership and agency nor does such testimony give rise to a presumption of ownership or agency. First, Sellers has never established that the person driving the truck was an agent or employee of Air Therm so as to create the presumption of ownership by Air Therm. Therefore, any presumption arising from an unknown person being in possession of the truck is not relevant. Although in its answer Air Therm denied the allegations in Sellers’ complaint that it was the owner of the van, under our current summary judgment law because Air Therm would not have the burden of proof on this issue at trial, it was not required to prove that it was not the owner of the van. Lau’s Corp. v. Haskins, supra at 495.

Second, Sellers did not point to evidence creating an issue for trial on whether an employee or agent of Air Therm was driving the van while it was involved in the collision. Therefore, no presumption that the driver was acting within the scope of his employment can arise.

The dissent’s effort to bootstrap a case for Sellers based on the presumption of ownership and the presumption that an employee was within the scope of his employment is contrary to our law. Neither evidence that a truck had “Southern Bell” lettered on it, nor evidence that a tractor-trailer truck had the letters “UPS” on it, nor evidence that a taxicab had “Checker Cab” lettered on it, nor proof that a locomotive engine had “Southern Railway Company” written on it, unsupported by any other evidence, was sufficient to authorize inferences of ownership or that the locomotive or vehicles were being operated by agents or employees of the defendants in the course of their employment. McCoy v. Southern Bell Tel. &c. Co., supra; Burns v. United Parcel Svc., supra; Clark v. Atlanta Veterans Transp., 113 Ga. App. 531 (148 SE2d 921); Southern R. Co. v. Hullender, 62 Ga. App. 274 (8 SE2d 674).

As the exact posture of Sellers’ evidence is no different from the evidence in the cases cited in the preceding paragraph, the same result must be reached unless these cases are overruled. We cannot merely reach a contrary result based upon theories which are contrary to these precedents.

Judgment affirmed.

Andrews, C. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ, concur. Eldridge, J., dissents.

Eldridge, Judge,

dissenting.

Both McCoy v. Southern Bell Tel. &c. Co., 172 Ga. App. 26 (322 SE2d 76) (1984) and Burns v. United Parcel Svc., 135 Ga. App. 890 (219 SE2d 624) (1975) were decided on directed verdict as opposed to this case, which was decided on summary judgment. Burns v. United Parcel Svc., supra, held: “Plaintiff failed to prove a prima facie case of liability. The directed verdict for defendant was correct.” (Emphasis supplied.) See also McCoy v. Southern Bell Tel. &c. Co., supra at 27.

The defendant tendered no evidence to disprove or deny plaintiff’s allegations in her complaint as to ownership of the vehicle or agency and relies on plaintiff’s testimony to show the absence of an essential element of plaintiff’s case, agency of the driver. In opposition, plaintiff relied upon her deposition testimony where she testifies that she drove down White Bluff from Oglethorpe Mall until Abercorn beside a white panel service truck that had Air Therm on the passenger side and on the rear door in big bold red letters and that had a Chatham County license tag; the truck was driven by a white male with dark, brown hair who swerved in front of her into her lane, stopped after she went off the road, and fled from the police.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), held: “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” (Emphasis supplied.) “As we noted above, at summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Id. at 495. Nowhere does Lau’s Corp. hold that to repel summary judgment the plaintiff must prove a prima facie case; plaintiff must only “point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Id. at 491. “[S]ummary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997). Even a tortured reading of Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1974) stops short of requiring plaintiff to make out a prima facie case to survive summary judgment; “it is the duty of each party at summary judgment to present her case in full or risk judgment against her.” Adams v. Sears, Roebuck & Co., 227 Ga. App. 695, 697 (1) (490 SE2d 150) (1997). “When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) [(1988)].” Id. at 696-697.

Plaintiff’s clear and unambiguous testimony was that a service truck with Air Therm painted in big, bold letters ran her off the road. Such testimony is specific evidence giving rise to a triable issue as to ownership and agency; such testimony also gives rise on summary judgment to a presumption of ownership and of agency, unless and until rebutted by direct evidence to the contrary.

Decided March 18, 1998

Crawford, Hinesley & Jennings, William F. Hinesley III, for appellant.

Barrow, Sims, Morrow, Lee & Gardner, Jordon D. Morrow, for appellee.

“A person in possession of personal property is presumed to be the owner, until the contrary appears.” Gate City Fire Ins. Co. v. Thorton, 5 Ga. App. 585, 586 (2) (63 SE 638) (1909); see also Clark v. Atlanta Veterans Transp., 113 Ga. App. 531, 533 (1) (148 SE2d 921) (1966); Giles v. Citizens Ins. Co. &c., 32 Ga. App. 207, 208 (1) (122 SE 890) (1924). Thus, the truck is presumed to belong to Air Therm when no evidence to the contrary appears.

“If there had been proof of ownership of the vehicle by the defendant there may have been sufficient circumstances to raise a jury question as to the driver’s agency. . . . But there was no proof of ownership, and since the defendant [in testimony] denied ownership, no inference of it can arise from the lettering on the vehicle.” Clark v. Atlanta Veterans Transp., supra at 533. In this case, the defendant chose not to put into the record any denial of ownership or agency.

“It is a recognized principle under Georgia law that when an employee is involved in a collision, while operating his employer’s vehicle, a presumption arises that he is acting within the scope of his employment. West Point Pepperell v. Knowles, 132 Ga. App. 253 (208 SE2d 17) (1974).” Intl. Business Machines v. Bozardt, 156 Ga. App. 794 (275 SE2d 376) (1980); see also Gordy Constr. Co. v. Stewart, 216 Ga. App. 882 (456 SE2d 245) (1995); Chrostowski v. G & MSS Trucking, 198 Ga. App. 140, 142 (1) (401 SE2d 53) (1990).

At trial plaintiff has the burden of proving both ownership and agency; however, on summary judgment plaintiff is entitled to the reasonable presumptions of ownership and agency arising from the defendant’s name on the truck, when the defendant puts in the record no evidence to rebut such presumptions. It is for such reasons that the authorities relied upon by the majority were decided after the close of the plaintiff’s case in chief on directed verdict. See McCoy v. Southern Bell Tel. &c. Co., supra at 27; Burns v. United Parcel Svc., supra.