text:
    A01A0398.
    COVINGTON et al. v. D. L. PIMPER GROUP, INC.
    (546 SE2d 37)
   Johnson, Presiding Judge.

D. L. Pimper Group, Inc. sought to enforce a covenant not to compete, a nonsolicitation agreement and a provision regarding confidential information and trade secrets against Dean Covington, its former employee, and Interstate/Johnson Lane Wachovia (hereinafter “IJL Wachovia”), with whom Covington began work. Following written and oral arguments and an evidentiary hearing, the trial court granted an interlocutory injunction against Covington and IJL Wachovia. They appeal from that order.

The evidence shows that there are several types of stores selling stocks and securities. There are large national brokerage houses (wire houses) which act as brokers and trade in their own names on the floor of the stock exchanges. There are regional brokers who can trade in their corporate names. And there are independent brokers who contract with licensed securities salesmen who are employees of local stock stores.

D. L. Pimper is a local stock store. Its employees buy and sell securities for clients through Royal Alliance Associates, Inc., an independent broker. IJL Wachovia is a regional broker that can trade in its own name. While Covington and IJL Wachovia list a number of differences between the two companies’ organizations, these distinctions are not relevant to our determination of the present case. What is relevant is the fact that the two companies compete for the same business. Employees of both companies sell stock, bonds, mutual funds and other investments to their clients. D. L. Pimper and its employees compete directly with the local office of IJL Wachovia.

On April 16, 1996, D. L. Pimper and Covington entered into an employment agreement containing a covenant not to compete, a provision regarding confidential information and trade secrets and a nonsolicitation agreement. Covington worked for D. L. Pimper until August 10, 2000, when he tendered his resignation and began working for IJL Wachovia.

The record shows that in discussions with IJL Wachovia, Covington indicated that he could move roughly $20,000,000 worth of business from D. L. Pimper to IJL Wachovia. Between August 1 and August 8, 2000, Covington copied and removed information regarding accounts that he serviced as an employee of D. L. Pimper and gave them to representatives of IJL Wachovia. On August 8, 2000, two days before his resignation, administrators at IJL Wachovia used the information supplied by Covington to prepare packets soliciting the transfer of between 100 and 200 accounts of individuals serviced by Covington. These letters of solicitation were based on a sample letter selected by Covington.

Approximately one hour after resigning from D. L. Pimper, Covington signed a compensation agreement with IJL Wachovia and began signing the solicitation of business transfer letters prepared from his D. L. Pimper client list. The letters were then mailed to many of his former clients, along with transfer forms and IJL Wachovia return envelopes. A number of solicitation letters were mailed from the offices of IJL Wachovia on the same day Covington tendered his resignation at D. L. Pimper. Approximately 35 percent to 50 percent of those accounts had been assigned to Covington by D. L. Pimper when he became an employee.

The trial court granted an interlocutory injunction against Covington and IJL Wachovia, and they appeal from that order. The trial court’s task on application for interlocutory injunction is “to balance the conveniences of the parties, to preserve the status quo, and to consider whether greater harm would result from granting or refusing the injunction.” Generally, the trial court has broad discretion to decide whether to grant or deny an interlocutory injunction. We will not disturb the trial court’s decision absent a manifest abuse of that discretion.

Where the trial court, in ruling on an interlocutory injunction, makes findings of fact based upon conflicting evidence, this court will not disturb the ruling as an abuse of discretion unless the denial or granting of the injunction was based on an erroneous interpretation of the law.

1. Covington and IJL Wachovia contend the trial court erred in enforcing the covenant not to compete in Covington’s employment agreement with D. L. Pimper. The covenant not to compete states as follows:

Upon the termination of this Agreement, for any reason, Employee shall not, within Floyd County, Georgia, for a period of one (1) year, directly or indirectly, solicit securities transactions or brokerage services, either as an individual on his own account, or as a partner or joint venturer, or as an employee, agent or salesperson for any person or business entity, or as an officer, director or stockholder of a corporation, or otherwise.

It is well established that the reasonableness of a noncompetition covenant is determined by applying a three-element test of duration, territorial coverage and scope of prohibited activity. Covington and IJL Wachovia maintain that this covenant is overbroad because it contains a prohibition on activities beyond those that Covington performed for D. L. Pimper. The trial court found that this covenant is properly limited in the scope of activities prohibited. We agree.

In the covenant at issue, Covington is precluded from soliciting securities transactions or brokerage services. Contrary to Covington and IJL Wachovia’s contention, the trial court was authorized to find from the evidence that Covington solicited securities transactions or brokerage services as an employee of D. L. Pimper. Although Covington was technically a registered agent with Royal Alliance and could only sell the securities transactions or brokerage services through that company, it is undisputed that he solicited these sales as an employee of D. L. Pimper.

Wright v. Power Indus. Consultants is inapposite. The covenant in Wright focused on restricting the employee based upon labels or titles of employment, not activities which the employee was prohibited from pursuing. The covenant at issue does not prohibit Covington from acting as a shareholder, partner, director, employee, et cetera, of any particular business. It merely prohibits him from soliciting securities transactions or brokerage services — the very act he conducted while an employee of D. L. Pimper — while working in any of these capacities. Because we find no abuse of discretion in the trial court’s entry of injunctive relief on this ground, we affirm.

2. Covington and IJL Wachovia contend the trial court erred in enforcing the nonsolicitation agreement in Covington’s employment agreement with D. L. Pimper. The nonsolicitation agreement states as follows:

Employee agrees that during the period of twelve (12) months immediately following termination of this Employment Agreement with Employer, which will cause the termination of Employee’s access to Employer’s Confidential Information and proprietary information, whether terminated by Employee or by Employer, and whether such termination is with or without cause, Employee shall not, on his own behalf, or on behalf of any person, firm, partnership, association, corporation or business or organization, entity or enterprise, solicit, contact, call upon, communicate with or attempt to communicate with any client or prospective client of Employer, or any representative of any client or prospective client of Employer, with a view to sell or provide securities or brokerage service competitive or potentially competitive with any securities or brokerage product or service sold or provided by Employer during the period of two (2) years immediately preceding termination of this Employment Agreement, provided that the restrictions set forth in this section shall apply only to clients or prospective clients of Employer, or representatives of clients or prospective clients of Employer with which Employee had contact during such two (2) year period. The actions prohibited in this section shall not be engaged by Employee directly or indirectly, whether as manager, salesman, agent, sales or service representative or otherwise.

Covington and IJL Wachovia maintain that this covenant is unlawful for three reasons: (1) its prohibition against Covington “communicating with” clients of D. L. Pimper is overly broad; (2) its prohibition against Covington’s solicitation of “prospective clients” of D. L. Pimper and against solicitation of services that are “potentially competitive” with D. L. Pimper is overly broad and (3) its prohibition against solicitation of “any” of D. L. Pimper’s clients “with the view to sell or provide securities or brokerage services” is overly broad. The trial court found that this covenant is reasonable in terms of territory, time and prohibited activity. We agree.

In W. R. Grace & Co. v. Mouyal, the Supreme Court upheld an almost verbatim nonsolicitation covenant. The nonsolicitation covenant in W. R. Grace also used the term “communicate with” and also prohibited solicitation of any “prospect” of the employer and solicitation of “potentially competitive” equipment or services. The W. R. Grace covenant also prohibited the solicitation of “any” of the employer’s customers “with a view to sale or providing” any product, equipment or service competitive or potentially competitive with any product, equipment or service sold or provided by the employer.

As the Supreme Court found in W. R. Grace, we find the covenant at issue to be reasonable in terms of duration, territorial coverage and scope of activity sought to be precluded. Although Covington was technically a registered agent with Royal Alliance, he was employed by D. L. Pimper to work as a stockbroker and solicit securities transactions or brokerage services. He sought to transfer $20,000,000 of accounts which he serviced while an employee of D. L. Pimper. The nonsolicitation covenant seeks only to enjoin Covington for a period of 12 months from contacting, communicating with or otherwise soliciting, with a view to sell or provide securities or brokerage service competitive with those sold while in D. L. Pimper’s employ, only those accounts with whom Covington had contact during the two years prior to his termination.

Singer v. Habif, Arogeti & Wynne, P.C. is inapposite. Not only does Singer never mention the phrase “communicate with,” but the covenant in Singer was deemed unreasonable, in part, because it prohibited the former employee from soliciting any client of his former employer, not simply clients with whom the former employee had contact. In the present case, Covington is prohibited only from soliciting clients or prospective clients of D. L. Pimper, or representatives of clients or prospective clients of D. L. Pimper, with whom Covington had contact during a two-year period. Based on the record before this Court, we cannot say that the trial court’s granting of injunctive relief on this ground is clearly erroneous.

Decided February 23, 2001.

Hunton & Williams, Scott M. Ratchick, Amy K. Alcoke, for appellants.

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

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

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       (Citations omitted.) Wilson v. Sermons, 236 Ga. 400 (223 SE2d 816) (1976); see Parker v. Clary Lakes Recreation Assn., 272 Ga. 44, 45 (526 SE2d 838) (2000).

       OCGA § 9-5-8; see Chaffin v. Calhoun, 262 Ga. 202, 204 (415 SE2d 906) (1992).

       Id.; Wilson, supra.

       (Citations omitted.) Ledbetter Bros., Inc. v. Floyd County, 237 Ga. 22, 23 (2) (226 SE2d 730) (1976).

        Reardigan v. Shaw Indus., 238 Ga. App. 142, 143 (1) (518 SE2d 144) (1999).

       They do not argue that the covenant is overbroad in either its duration or its territorial coverage.

       234 Ga. App. 833, 834-835 (2) (508 SE2d 191) (1998).

       See Habif, Arogeti & Wynne, P.C. v. Baggett, 231 Ga. App. 289, 294-297 (2) (c) (498 SE2d 346) (1998).

       262 Ga. 464 (422 SE2d 529) (1992).

       Id.

       250 Ga. 376 (297 SE2d 473) (1982).

       Id. at 377-378 (1).

       See Wright, supra at 835-837 (3).

       See Baggett, supra at 297-298 (3).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A00A2007.
    THOMPSON et al. v. McDOUGAL.
    (546 SE2d 44)
   Pope, Presiding Judge.

Howard and Arlene Thompson appeal the trial court’s grant of summary judgment in favor of Victor McDougal which upheld McDougal’s claim of a prescriptive easement over the Thompsons’ property. The Thompsons assert that there are issues of fact.

Construed in favor of the Thompsons, the facts show that in 1963 McDougal leased property fronting on Lake Burton from Georgia Power Company. The property was not accessible by road at the time, but a logging road that ran across the Thompsons’ property came to within 100 yards. At some point in the 1960s, Thompson graded a road or drive to connect the road to the McDougal property. In the late 1960s, Howard Thompson built a new road known as Lunsford Lane near the site of the old logging road. The portion of the road that connects Lunsford Lane to McDougal’s property is now known as Imperial Lane. Imperial Lane runs across the Thompsons’ property; Lunsford Lane crosses the Thompsons’ property at points and at other points runs along the edge of their property and that of other landowners. McDougal initially used the old logging road but has been using Imperial Lane and Lunsford Lane to access his property since they were built. Up until 1984, McDougal visited the property only two or three times a year. After 1984, he and his family visited most weekends each summer and a few other times a year.

OCGA § 44-9-1 provides that “[t]he right of private way over another’s land may arise from . . . prescription by seven years’ uninterrupted use through improved lands. . . .” But, use alone is insufficient to acquire prescriptive title:

An owner’s acquiescence in the mere use of his road establishes, at most, a revocable license. To establish a prescriptive easement over the private property of another pursuant to OCGA § 44-9-1, it is necessary to show that the owner was given notice that the user intended to appropriate it as his own.

(Citations and punctuation omitted.) Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360, 362 (434 SE2d 477) (1993). And, without express notice, the most common and effective way of giving notice of a claim of right is to maintain and repair the way: “the cases clearly hold that the necessity of showing repairs is required in order to give notice to the landowner that the prescriber’s use of the road is adverse and not permissive.” Chota, Inc. v. Woodley, 251 Ga. 678, 679-680 (309 SE2d 132) (1983). Making repairs to the road constitutes notice to the landowner that the repairer intends to appropriate the road as his own. Eileen B. White, 263 Ga. at 360-361; Rothberg v. Peachtree Investments, 220 Ga. 776, 780 (2) (142 SE2d 264) (1965).

In this case, there is an issue of fact concerning whether McDougal used the roads with Howard Thompson’s permission, which would not constitute prescriptive use. See OCGA § 44-5-161 (b). Although Thompson admits that he never gave McDougal express permission to use the roads and that McDougal never asked for permission, permission can be implied. City of Atlanta v. Ga. R. &c. Co., 148 Ga. 635, 637 (3) (98 SE 83) (1919). And Thompson contends that permission was implied from the two parties’ early encounters. When they first met, Howard Thompson helped McDougal take building supplies across his own land, and he says he never would have done so if he did not intend to allow McDougal to cross his land. Thompson graded a road to connect McDougaFs property to the rest of the road. Thompson also kept a cable across the old logging road secured with a lock, and McDougal had to get a key from someone in the Thompson family to get through. Finally, McDougal twice testified in terms of permission when describing his own use of these roads. Both in his deposition and during a hearing he agreed that he just assumed that he had “permission” to use the roads. Including favorable inferences, these facts could be construed to mean that McDougal only had permission to use the roads.

Second, there is an issue of fact concerning whether McDougal maintained or otherwise performed repairs to the roads sufficient to put the Thompsons on notice of a claim of adverse use. There is no clear evidence in the record that McDougal maintained the logging road during the early years. With regard to Imperial Lane, McDougal admits that he never spent any money maintaining it. Although he claimed that he had part of it graveled, his testimony makes it unclear whether he was simply working on the extension of Imperial Lane that is located on his own property. And even though he claims he paid Howard Thompson for the initial grading, Thompson denies being paid. Finally, McDougal claims he smoothed out erosion “at least once, maybe more” very near his property line and cut limbs from trees that would interfere with access to his property. But this evidence might not be sufficient to put Thompson on notice of an adverse claim of right to use the road. See First Christian Church &c. v. Realty Investment Co., 180 Ga. 35, 39-41 (178 SE 303) (1934).

With regard to Lunsford Lane, there is a factual dispute regarding the significance of the evidence of repair. McDougal testified that he paid over $1,000 on one occasion and additional amounts on other occasions to repair that road. But McDougal simply gave a payment to other landowners and a homeowners association on Lunsford Lane who put the funds to use repairing that road, and there is no indication that the Thompsons were aware of McDougaFs participation. It is not clear how repairs to Lunsford Lane apparently undertaken by other property owners should have put the Thompsons on notice that McDougal was an adverse user of Imperial and Lunsford Lanes. See First Christian Church, 180 Ga. at 39-41; Wilson v. Smith, 74 Ga. App. 251, 252 (39 SE2d 591) (1946).

Decided February 26, 2001.

Michael H. Cummings II, for appellants.

English, Tunkle & Smith, Richard D. Tunkle, for appellee.

Third, “the location of the way must not shift from place to place as to any part of the route, but the way must occupy the same ground all the while and be kept in repair on that ground.” Raines v. Petty, 170 Ga. 53, 57 (1) (152 SE 44) (1930). Here, the location of the way in and out of the property was changed when Thompson built Lunsford Lane. And, at some point in time, Thompson has changed the location of portions of both Lunsford and Imperial Lanes by 30 or more feet. The record also reflects that Thompson altered Lunsford Lane once in the early 1990s, and McDougal admitted that Thompson altered Imperial Lane several times over the years. There is an issue of fact regarding this aspect of McDougal’s case as well. See, e.g., Jackson v. Stone, 210 Ga. App. 465, 467-468 (2) (436 SE2d 673) (1993).

Factual questions such as these regarding whether a prescriptive easement has been established must be resolved by a jury. See Hasty v. Wilson, 223 Ga. 739, 743 (2) (a) (158 SE2d 915) (1967).

Judgment reversed.

Miller and Mikell, JJ, concur.

       We have been hampered in this case by the Thompsons’ improper citations to the record. We remind the bar that citations must be made to the page numbers of the record itself — “the volume or part of the record or transcript and the page numbers that appear on the appellate records or transcript as sent from the court below,” not to parts of the trial record such as “Affidavit of_, p. 5” or “Deposition of Defendant, p. 42.” See Court of Appeals Rule 27.

       Although Howard Thompson testified at a hearing that he had never blocked McDougal’s passage and that the road had always been open, he later offered an explanation for this inconsistent testimony. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986) (“if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness”).

       Although permissive use of a way does not establish a prescriptive easement, the use may originate by permission and still ripen by prescription provided the user gives notice by repairs or otherwise that his use is adverse, i.e., that he is a prescriber and not a mere licensee. First Christian Church &c. v. Realty Investment Co., 180 Ga. 35, 39-40 (178 SE 303) (1934).


text:
    A00A2147.
    ELOM v. THE STATE.
    (546 SE2d 50)
   Pope, Presiding Judge.

After his motion to suppress was denied, Elom was convicted for trafficking in cocaine and possession of a weapon during the commission of a crime. Elom contends that the court erred in denying his motion to suppress and that the court’s rulings during the motion to suppress hearing hindered his attempt to show that the search warrant affidavit was based on false information.

1. A defendant may seek to suppress the evidence recovered pursuant to a search with a warrant if “the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.” OCGA § 17-5-30 (a) (2). In determining whether an affidavit sufficiently establishes probable cause, “we employ the ‘totality of the circumstances’ analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by this court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). . . .” Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992). Under that analysis,

[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . (concluding)” that probable cause existed. [Cit.]

Illinois v. Gates, 462 U. S. at 238-239. “Once a motion to suppress has been filed, the burden of proving the lawfulness of the warrant is on the state and that burden never shifts.” Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996). On appeal, the evidence is construed most favorably to uphold the findings and judgment of the trial court. Lambright v. State, 226 Ga. App. 424 (487 SE2d 59) (1997).

In this case, the warrant affidavit concludes that Elom and a black female occupied apartment 4-J of an apartment complex located in Jonesboro and that there was crack cocaine in the apartment or in one of three cars. Elom was arrested when the detectives executing the warrant saw him leave apartment 4-J, get in one of the cars, and leave. A search of the car revealed a .40 caliber weapon, about 900 grams of cocaine, and $24,000 in cash.

Elom contends that the warrant was based on information obtained from a confidential informant and that the informant was not reliable because he was paid for the information and he had a criminal record related to illegal drugs. He also asserts that this information was omitted from the officer’s affidavit in support of the warrant and first came to light at the hearing on the motion to suppress.

Under the totality of the circumstances test, the reliability of the informant is a relevant consideration. Perkins v. State, 220 Ga. App. 524, 525 (2) (469 SE2d 796) (1996). And although attesting officers and magistrates should “make every effort to see that supporting affidavits reflect the maximum indication of reliability,” State v. Stephens, 252 Ga. 181, 184 (311 SE2d 823) (1984), the absence of certain information, standing alone, such as the informant’s felony history, Kessler v. State, 221 Ga. App. 368, 371 (471 SE2d 313) (1996), or the fact that he was a paid informant, Hockman v. State, 226 Ga. App. 521, 523 (1) (487 SE2d 102) (1997), is not determinative.

In this case the only evidence presented to the magistrate in sup-1 port of issuance of the warrant was the affidavit. The affidavit was based on information supplied to Agent Bridgeman, the attesting officer on the warrant, by a confidential informant and by another detective named Harris who had obtained his information from a second informant. The search warrant affidavit does not even attempt to provide a basis for concluding that Harris’ informant was credible. And the only information in the affidavit concerning Bridgeman’s informant’s reliability was the statement that, “[t]he [informant] is believed to be reliable, because [informant] has led to the seizure of illegal substances within the past month which were being possessed in violation of Georgia law.”

At the hearing on the motion to suppress, Bridgeman conceded that he did not have personal knowledge that the informant had given information leading to drug seizures in the past. Rather, he learned it from other officers in Clayton County. He also conceded that he knew that the informant had a criminal record at the time that he presented the affidavit to the magistrate, yet he did not put this information in the affidavit.

Given the fact that (1) the affidavit failed to mention that it was based on hearsay evidence from two confidential informants; (2) the affidavit failed to disclose that the one informant had a criminal background and was being paid for the information; (3) the affidavit had no information regarding the reliability of the second informant; and (4) the attesting officer had no personal knowledge of the reliability of either informant, the lone statement in the affidavit about one informant’s credibility did not constitute sufficient facts from which the magistrate could independently determine the reliability of both the information and the informants. See, e.g., Peters v. State, 213 Ga. App. 488 (445 SE2d 290) (1994).

Even so, an informant may be found sufficiently reliable if portions of the tip are sufficiently corroborated. Langford v. State, 213 Ga. App. 232, 234 (1) (444 SE2d 153) (1994). For the corroboration to be sufficient to show reliability,

the information corroborated must include a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. In short, the information corroborated will generally need to be a prediction of future behavior, as in Gates, or something similar — that is, inside information not available to the general public.

Decided February 26, 2001.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Id. at 235 (1).

The affidavit states that Bridgeman’s informant provided the following information: (1) that he had been in apartment 4-J within the past 72 hours where he observed a white substance that a female occupant of the apartment represented was crack cocaine; (2) that he was familiar with crack cocaine; (3) that the female occupant drove a red Nissan 300 with tag number 2100XF; (4) that Elom drove a Honda Accord or a Chevrolet Impala; and (5) that Elom carried a semi-automatic firearm. In fact, Bridgeman’s informant was not the source of the information that Elom occupied or was ever seen in apartment 4-J. Detective Harris’ informant is the only source of that information. And Bridgeman never talked to that informant nor determined his reliability.

Bridgeman stated in the affidavit that his independent investigation revealed (1) that the Honda was owned by a person named Lowe who lived at the same complex in apartment 13-K; (2) that Elom lived in the “13” building of the complex; (3) that Elom was involved in an accident near the apartment complex only three days earlier while driving the red Nissan; (4) that Elom owned the Nissan but the title listed a Newnan address; and (5) that the Chevrolet was owned by someone named Roberts located at a different Newnan address. At the hearing, Bridgeman added that his own investigation revealed that Elom’s address was in Newnan.

We fail to see how any of this information corroborates the information supplied by the informant sufficiently to establish his credibility. Rather, it would appear that much of the information he gave proved to be inaccurate. See Peters, 213 Ga. App. at 490. Munson v. State, 211 Ga. App. 80 (438 SE2d 123) (1993), relied upon by the State, is distinguishable. There, the attesting officer’s investigation confirmed several key facts given by the informant. Id. at 82-83.

Accordingly, the trial court erred in denying Elom’s motion to suppress.

2. With regard to Elom’s second enumeration, our decision in Division 1 renders this enumeration moot.

Judgment reversed.

Miller and Mikell, JJ, concur.

       We note that deficiencies in the warrant affidavit may be overcome by testimony from the attesting officer at the magistrate court warrant hearing and that it is good practice to make a record of that hearing. Powell v. State, 170 Ga. App. 185,186-187 (2) (316 SE2d 779) (1984). See also Callahan v. State, 179 Ga. App. 556, 561 (3) (347 SE2d 269) (1986).


text:
    A00A2240.
    THE STATE v. SIMS.
    (546 SE2d 47)
   Pope, Presiding Judge.

Thomas Sims, Jr. was pulled over for speeding and caught driving with a suspended license and without insurance. After the traffic stop was complete, the officer asked whether Sims had drugs or weapons in his car; then he asked for and obtained consent to search the car. The search uncovered marijuana. The trial court agreed to suppress the marijuana, and the state appeals. The issue raised is whether an officer illegally exceeds the scope of a valid traffic stop by asking for information unrelated to the traffic stop and for consent to search for drugs while the person is still being detained and without articulable suspicion of a crime.

Sims, with two passengers, was stopped for speeding, and the officer asked to see his driver’s license and insurance card. Sims’ license was suspended and his insurance had expired, and the officer cited him for speeding and no insurance and then gave him notice of the suspended status of his license. Sims signed the citations. The officer kept the license because it was suspended, and, as the officer later testified, at this point the traffic stop was over. However, because Sims had no insurance, the car had to be towed. At the hearing, the officer admitted that at that moment, he had no probable cause or articulable suspicion that Sims had any contraband in his car.

The officer then asked Sims whether “he had any illegal contraband, including guns, knives, hand grenades, illegal drugs,” in the car. Sims said no. He then asked whether Sims had an objection to a search of the vehicle. He testified that Sims consented. He then patted down Sims for weapons and instructed him to stand next to another officer who had been called in for safety. The search revealed what appeared to be marijuana in the backseat. A passenger who had been in the backseat was arrested. The officer then took the keys out of the ignition, opened the trunk, and discovered purported drug paraphernalia and more suspected marijuana. Sims was then arrested. The officer testified that during the search, Sims never indicated that he wanted the officer to stop or limit the search.

The trial court appears to have concluded that Migliore v. State, 240 Ga. App. 783 (525 SE2d 166) (1999), established a bright-line rule that after a traffic stop, any question without reasonable suspicion on a topic other than the matter for which the stop was made is impermissible. The court found that after the officer had completed the questioning concerning the traffic offenses and while he was still detaining Sims, he asked about drugs and for consent to search without any reasonable suspicion of criminal activity. The trial court concluded:

Therefore it would appear that by asking the Defendant about drugs and then asking for consent to search, Deputy Watson exceeded the scope of the permissible investigation by turning a completed traffic stop into an investigation for drugs, something that is expressly prohibited by Migliore.

We find this language misstates the holding in Migliore, but nevertheless conclude that the trial court properly suppressed the evidence.

On reviewing a trial court’s ruling on a motion to suppress, “evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” (Citation and punctuation omitted.) Rider v. State, 222 Ga. App. 602 (475 SE2d 655) (1996). A trial court’s ruling on a motion to suppress will be upheld if it is right for any reason. Benton v. State, 240 Ga. App. 243, 245 (1) (522 SE2d 726) (1999).

The only issue of fact in dispute on appeal is whether Sims was free to go at the end of the initial traffic stop. The trial court held that Sims was still detained. Because this finding is supported by the evidence that the officer kept Sims’ license because it was suspended and that Sims’ car had to be towed because there was no insurance, we cannot say it was clearly erroneous.

But the trial court’s order suggests that after a valid traffic stop an officer can never ask unrelated questions or obtain valid consent to search for drugs unless he has reasonable suspicion of drug activity. The holdings in Migliore and similar cases are not that limiting.

The Fourth Amendment protects a person’s right to be secure against unreasonable searches and seizures. The “ 'touchstone of the Fourth Amendment is reasonableness.’ Florida v. Jimeno, 500 U. S. 248, 250 (111 SC 1801, 114 LE2d 297) (1991).” Ohio v. Robinette, 519 U. S. 33, 39 (117 SC 417, 136 LE2d 347) (1996). “Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.” Id. And, the Supreme Court has consistently rejected bright-line rules in applying this test. Id.

In deciding whether the question about drugs and weapons, standing alone, was unreasonable, we note that “mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U. S. 429, 434 (111 SC 2382, 115 LE2d 389) (1991). The Supreme Court has made clear that “[s]o long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” (Citation and punctuation omitted.) Id.; Simmons v. State, 223 Ga. App. 781, 783 (2) (479 SE2d 123) (1996) (if the police questioning was consensual, then questions on an unrelated topic after the conclusion of a valid traffic stop are allowed).

Second, with regard to the consent to search, “one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” (Citations omitted.) Schneckloth v. Bustamonte, 412 U. S. 218, 219 (93 SC 2041, 36 LE2d 854) (1973). See also Dean v. State, 250 Ga. 77, 80 (2) (a) (295 SE2d 306) (1982). In deciding whether consent to search is valid, the Supreme Court has made clear that the sole test is whether the consent was voluntary. Robinette, 519 U. S. at 40. And, if the consent is voluntary, an officer may obtain consent to search a car following the conclusion of a valid traffic stop, without reasonable suspicion of criminal activity. Id. Finally, “ Voluntariness is a question of fact to be determined from all the circumstances.’ ” (Citation omitted.) Id.

In Robinette, the defendant was stopped for speeding, and after the stop was completed and his license returned, the officer asked him whether he had any drugs or weapons. Robinette, 519 U. S. at 36. Robinette answered no, after which the officer asked if he could search the'car. Robinette consented. Id. The Ohio Supreme Court had ruled that the evidence subsequently discovered in the car should be suppressed because the search resulted from an unlawful detention because Robinette had not been told that he was free to go. Id.

The Supreme Court reversed and held that the Fourth Amendment did not require such a bright-line test. Robinette, 519 U. S. at 39. Rather the test to be employed is whether under the totality of the circumstances the consent was voluntary. And the officer’s subjective intent is immaterial to the question. Id. at 38 (citing Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996)).

However, as is shown in Migliore and Smith v. State, 216 Ga. App. 453, 454-455 (454 SE2d 635) (1995), if the officer continues to detain the subject after the conclusion of the traffic stop and interrogates him or seeks consent to search without reasonable suspicion of criminal activity, the officer has exceeded the scope of a permissible investigation of the initial traffic stop. This is so because “a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.” (Citations omitted.) Terry v. Ohio, 392 U. S. 1, 18 (88 SC 1868, 20 LE2d 889) (1967). And, “[t]he scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Id. at 19. As stated in State v. Blair, 239 Ga. App. 340, 341 (521 SE2d 380) (1999), “An officer who questions and detains a suspect for other reasons exceeds the scope of permissible investigation unless he has ‘reasonable suspicion’ of other criminal activity.” (Emphasis supplied.)

Decided February 26, 2001.

Lydia J. Sartain, District Attorney, Richard A. Vandever, Assistant District Attorney, for appellant.

Whitmer & Law, George H. Law III, for appellee.

Here, the trial court also found as a matter of fact that Sims was detained without justification when the officer began to interrogate Sims about the contents of his car. And the subsequent consent to search was the product of this impermissible seizure. Accordingly, the trial court did not err in suppressing the evidence obtained in the search.

Judgment affirmed.

Miller and Mikell, JJ., concur.

       The factors . to be considered when determining voluntariness are described in Schneckloth v. Bustamonte, 412 U. S. at 229.


author: Barnes, Judge.

text:
    A00A2121.
    GIBSON v. CARTER.
    (545 SE2d 698)
   Barnes, Judge.

Clarence Carter sued Terry Gibson for damages arising from a collision that occurred at an icy intersection when Gibson’s pickup truck could not stop for a stop sign and was struck by Carter in his pickup truck, which was traveling with the right of way. The jury returned a verdict in favor of Carter for medical expenses in the amount of $2,133.86. Later, however, the trial court granted Carter’s motion for a new trial. Upon retrial of the case, the trial court granted Carter’s motion for a directed verdict on liability, and the jury returned a verdict in Carter’s favor for $30,000.

Gibson now appeals that judgment. He contends the trial court erred by granting the new trial, by directing a verdict for Carter on liability, and by failing to give certain charges he requested concerning issues of contributory and comparative negligence. As we find that the trial court erred by granting the directed verdict to Carter on liability, we must reverse.

1. We find no merit in Gibson’s contention about the grant of a new trial. A trial court’s first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge. OCGA § 5-5-50; Head v. CSX Transp., 271 Ga. 670, 672 (3) (524 SE2d 215) (1999).

In Georgia,

the trial judge is vested with the strongest of discretions to review the case and to set the verdict aside if he is not satisfied with it. As required by OCGA § 5-5-50, the first grant of a new trial is not to be reversed by an appellate court unless the verdict set aside by the trial court was absolutely demanded. The record presented to this Court does not demand such a reversal.

(Citations and punctuation omitted.) Thomas v. Wiley, 240 Ga. App. 135, 137 (2) (522 SE2d 714) (1999). As the original verdict was not absolutely demanded by the evidence, we do not find that the trial court abused its discretion in granting a new trial.

2. Gibson further contends the trial court erred by granting Carter a directed verdict on liability in the second trial.

A directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions and construed in favor of the non-moving party, demands a certain verdict. Further, the trial court is not authorized to weigh the evidence or decide issues of fact.

(Citations and punctuation omitted.) Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1) (416 SE2d 807) (1992). Additionally, issues of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s safety ordinarily are to be decided by a jury, and a court should not decide them except in plain and indisputable cases. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 156 (1) (A) (256 SE2d 916) (1979).

In the second trial, Carter testified that he had traveled the road earlier that day without incident. He also testified that the conditions were slick and treacherous because ice was all over the road. It had been raining, sleeting, and even snowing slightly for two or three days. Nevertheless, he believed that while the road was “slick,” it was “travelable.” He testified that he did not see Gibson’s truck until impact and that he had no time to do anything but duck and hit him. According to Carter, Gibson was just about right in front of him in the intersection before he saw him. He also testified that, because Gibson appeared so suddenly, even if the road had been “dry as powder” it would have made no difference. Carter also testified that he “ducked down” in his seat rather than attempting evasive action because there was nothing he could do to avoid the accident; he contended that he did not have time to react in any way other than to collide with Gibson’s car. He believed that applying his brakes would have been futile because his brakes would not have stopped him at any speed because of the ice.

Carter testified that before the accident his attention was directed toward a pickup which was approaching from the other direction. He was concerned that this truck might have difficulties that would cause him problems. This truck was on the other side of the intersection from Carter because it did not pass through the intersection. Instead, Gibson’s pickup struck it after the collision with Carter.

Carter testified that he was traveling 20 to 25 mph and the speed limit was 35 mph. He also testified that he had traveled this road for years and he was aware of the dangerous intersection. He further testified that the condition of the road changed between the first time he used it that day and the accident because someone had graded the road and scraped away the snow and slush so that the surface was down to the ice.

During the second trial, however, Gibson introduced Carter’s testimony from the first trial in which he stated that he saw Gibson’s truck and applied his brakes for a few seconds before the impact.

Gibson testified that he knew the road was icy. He had traveled on the snow for several days, and he “tried to stop that day just like I had every other day, but they had graded the road or something and I couldn’t get stopped.” He further testified that he had no problem stopping when he traveled the road earlier that day. He also knew that he would have to stop at the stop sign, but that he could not because his car started sliding when he started to brake. He did not begin to stop his vehicle soon enough to keep from sliding through the intersection. He also testified that he did not know whether there was anything Carter could have done to avoid the accident.

Because of Carter’s conflicting testimony on when he saw Gibson’s pickup and when he saw the approaching pickup, whether he had time to brake, his testimony that he could not stop because of the ice, and the other evidence in the case, we find that a jury issue existed on whether and to what extent Carter’s own negligence may have contributed to the accident because he also may have been driving too fast for conditions. Although Carter was authorized to proceed at a reasonable speed and to assume that other drivers will obey the rules of the road and yield the right of way (Kicklighter v. Jones, 202 Ga. App. 654 (415 SE2d 302) (1992)), he was still obliged to operate his vehicle at a reasonable and prudent speed. Under our traffic law, Carter was required not to

drive [his] vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. Consistently with the foregoing, every person shall drive at a reasonable and prudent speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching and traversing a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

OCGA § 40-6-180.

Thus, Carter was not entitled to drive through the intersection, without regard to the conditions existing.

Even if the other driver is guilty of negligence per se or has otherwise failed to exercise ordinary care in approaching the intersection, this will not relieve the driver having the right-of-way of his own legal duty to exercise ordinary care under the facts and circumstances of the situation. It is his duty to exercise ordinary care, to remain alert in observing the vehicles approaching the crossing, and to exercise ordinary care to avoid a collision, after he sees or by ordinary diligence could have seen that one is threatened or imminent.

(Citation and punctuation omitted; emphasis in original.) Richardson v. Chesky, 235 Ga. App. 28, 29 (2) (508 SE2d 441) (1998).

Here, Carter admitted that he could see an approaching pickup, but stated that he did not see Gibson’s truck until it was in the intersection right in front of him. Therefore, we find a jury issue existed on whether he used ordinary care to avoid the collision after he saw or should have seen that a collision was threatened. Finally, because Carter admitted that it had snowed, the road was icy and treacherous, and he could not stop because of the ice, a jury could infer from these facts that Carter was traveling too fast for conditions or that he was otherwise negligent. See Vaughan v. Glymph, 241 Ga. App. 346, 349 (526 SE2d 357) (1999). Therefore, issues existed on whether and to what extent he failed to avoid the consequences of his own actions. OCGA § 51-11-7. Even though a jury may ultimately find that Gibson was negligent, that does not eliminate the possibility that the jury could also find that Carter’s own negligence was responsible for his damages to some degree and that his damages should be reduced accordingly. Therefore, the trial court erred by directing a verdict for Carter on liability.

3. Because we have reversed the directed verdict, we need not address the trial court’s refusal to give charges that Gibson requested.

Decided February 27, 2001.

Davis & Kreitzer, John W. Davis, Jr., Steven W. Kreitzer, for appellant.

Clifton M. Patty, Jr., for appellee.

Judgment reversed.

Blackburn, C. J., and Eldridge, J., concur.


author: Ellington, Judge.

text:
    A00A2306.
    CLARENCE L. MARTIN, P.C. v. WALLACE et al.
    (546 SE2d 55)
   Ellington, Judge.

Clarence L. Martin, RC. (“the corporation”) filed this appeal from the trial court’s order denying its motion to intervene and to set aside the judgment following a judicial in rem tax foreclosure sale of certain real property. The corporation claims that since it held title to the property sold at the tax sale, the trial court erred in denying its motion to intervene and in granting the tax sale purchaser’s motion to dismiss its petition. For the reasons that follow, we reverse the order dismissing the corporation’s petition to intervene and remand for further proceedings.

The facts of this case are not in dispute. The corporation owned property located in Chatham County. The property was sold for taxes, but the U. S. Small Business Administration paid the redemption price to protect the mortgage it held on the property. When the property was redeemed, the Chatham County Tax Commissioner conveyed the property into the name of Clarence L. Martin, individually, instead of the corporation. When no taxes were paid on the property, the tax commissioner sold the property to Thomas Cecil Wallace, Sr. Wallace also failed to pay taxes on the property.

Seeking a judgment authorizing the sale of the property, the tax commissioner filed a petition for ad valorem tax foreclosure which named Wallace as the record owner of the property. Exhibit B to the petition listed interested parties, including Martin. On August 10, 1999', the superior court conducted a hearing on the petition pursuant to OCGA § 48-4-79. It is undisputed that Martin, the registered agent for the corporation, attended the hearing. It is also undisputed that although Martin received notice of the proposed sale, the corporation did not. Martin maintains that he was present on his own behalf and not on behalf of the corporation.

After reviewing the petition for judicial in rem tax foreclosure, the superior court issued an order authorizing the foreclosure and tax sale. On October 5, 1999, the property was sold to Dolly Chisholm, an attorney who represents Wallace. On December 6, 1999, the corporation filed a petition to intervene and to contest the tax foreclosure. On that same day, to protect its rights to redeem the property, the corporation paid $22,251.75, the amount of taxes due, into the registry of the court. Subsequently, the tax commissioner reported to the trial court that the property could not be conveyed due to the filing of the petition to intervene.

Meanwhile, Wallace filed a motion seeking the dismissal of the corporation’s petition. Wallace argued that the corporation had no standing and lacked the capacity to intervene. Wallace claimed that since the professional corporation had been administratively dissolved, the corporation was no longer recognized as a legal entity. Wallace also contended that the corporation was not the title owner of the property at the time of the filing of the petition for the tax foreclosure and, therefore, had no right to redeem the property as provided by OCGA § 48-4-81 (c). Without setting forth any reasons for doing so, the trial court granted Wallace’s motion to dismiss, and this appeal followed.

1. The corporation contends the trial court erred in denying its motion to intervene. It claims that it had a statutory right to redeem the real property sold to Wallace at the tax sale because it was the owner of title of the property and it had timely paid the appropriate amount into the registry of the court. As a threshold matter, we address the legal existence of and right of the corporation to intervene. Wallace argues that, because the corporation had been administratively dissolved, it lacked standing to sue. Georgia law, however, provides otherwise. See OCGA § 14-2-1410. The legislature amended the corporate Code effective July 1, 1996, to preserve certain rights and remedies of dissolved corporations, except those dissolved by a superior court decree. OCGA § 14-2-1410 now guarantees a dissolved corporation a safe harbor period of two years after the date of dissolution to commence an action. The statute expressly provides:

The dissolution of a corporation in any manner, except by a decree of the superior court . . . , shall not take away or impair any remedy available to such corporation, its directors, officers, or shareholders for any right or claim existing prior to such dissolution or is commenced within two years after the date of such dissolution. Any such action or proceeding by the corporation may be prosecuted by the corporation in its corporate name. The shareholders, directors, and officers shall have power to take such corporate or other action as shall be appropriate to protect such remedy, right, or claim.

OCGA § 14-2-1410. Nothing in the record establishes that the two-year time period had lapsed. On the contrary, the sole evidence of dissolution is a single page purportedly from an electronic search of the Secretary of State’s Internet website which shows that the corporation was current in the payment of its annual return as of October 2, 1997, but that later, according to uncertified information obtained on December 8, 1999, the status of the corporation was “administratively dissolved.”

Next we consider the application of the statutory procedures to the corporation. The corporation of Clarence L. Martin, P.C. is a distinct legal entity from Clarence L. Martin, an individual. See Henderson v. HSI Financial Svcs., 266 Ga. 844, 846 (2) (471 SE2d 885) (1996) (a professional corporation and its shareholders enjoy the same rights, privileges, and immunities as shareholders in a business corporation); see OCGA § 14-7-3. Under the statutory provisions governing judicial in rem tax foreclosures, prior to the sale of property for delinquent taxes, “any interested party may redeem the property from the sale by payment of the redemption amount” to the tax sale petitioner. OCGA § 48-4-80 (a). But after the conclusion of a judicial foreclosure and sale, under the terms of OCGA § 48-4-81 (c), the right to redeem belongs exclusively to the owner of the property before the sale. That subsection provides:

From and after the moment of the sale, the sale shall be final and binding, subject only to the right of the owner of the property to redeem the property from the sale upon payment into the superior court of the full amount of the minimum bid price of the sale. Such right of redemption of the owner shall exist for a period of 60 days from and after the date of the sale.

OCGA § 48-4-81 (c). This right of redemption, however, applies solely to the actual property “owner,” defined as “the owner of record of fee simple interest in the property as of the date of filing of the petition.” OCGA § 48-4-81 (c) (2).

By law, the tax commissioner was obligated to ascertain the identity of and to provide notice to all parties having an interest in the property “as revealed by a certification of title to the property conducted in accordance with the title standards of the State Bar of Georgia.” OCGA § 48-4-77 (1) (A). Thus, the tax commissioner had a legal duty to determine the true owner by searching the appropriate real property records.

Thus, if the corporation was, in fact, the owner of record of fee simple interest in the property at issue on June 16, 1999, the date when the petition was filed, then the corporation had an unconditional right to intervene guaranteed by statute. Burruss v. Ferdinand, 245 Ga. App. 203, 204 (2) (536 SE2d 555) (2000). On this issue, the corporation offered some evidence that it was and is the owner of record of fee simple interest in the property at issue. Compare id. (person holding unrecorded deed was not entitled to intervene in ad valorem tax foreclosure).

The corporation asserts that it is the true owner because title was never voluntarily or involuntarily transferred out of its corporate name. To support its claim of title, the corporation offered a copy of an indenture dated April 12, 1979, and filed on April 17, 1979, which showed that Rimstrance Leasing Systems, Ltd. conveyed all interest in this property “FOREVER IN FEE SIMPLE” to “Clarence L. Martin, P.C., a Georgia corporation.” The corporation also submitted the affidavit of Sandra Polite-Orr, a title searcher with more than 20 years of experience in searching titles in Chatham and surrounding counties. According to Polite-Orr, she had been retained to conduct a title search on the “Western 30’ of Lot 10, Pulaski Ward, 109 West Liberty Street, Savannah, Georgia 31401.” Polite-Orr testified that this property “was deeded to Clarence L. Martin, P.C. by Warranty Deed, dated the 12th day of April 1979, recorded in Deed Book 112-P, Page 230.” As a result of her title search, Polite-Orr determined that “as of March 1, 2000, the property has never been deeded out of Clarence L. Martin, P.C.” Polite-Orr noted, however, that “the Chatham County Tax Commissioner attempted to sell the property for taxes in 1982, but transferred the property out of Clarence L. Martin, an individual and not out of Clarence L. Martin, P.C., a corporation.”

Based on the record before us, it appears that the property at issue was sold by the tax commissioner in 1982 for nonpayment of taxes. A 1982 document declares Clarence L. Martin as the defendant in fi. fa. It appears that it was Martin’s property, not the property belonging to the corporation, that was seized and levied upon. The SBA then paid the amount required to redeem the property. But, after the SBA redeemed the property in 1982, title was not put back into the name of Clarence L. Martin, P.C., whose name appears on the indenture as the defendant in fi. fa. Instead, after the SBA paid the funds necessary to redeem the property, it seems that the tax commissioner quitclaimed the property to Martin, not to the corporation. When property has been redeemed, however, the effect of that redemption “shall be to put the title conveyed by the tax sale back into the defendant in fi. fa., subject to all liens existing at the time of the tax sale.” OCGA § 48-4-43.

In 1991, this same property was again sold for delinquent ad valorem taxes and Wallace was the purchaser. After Wallace failed to pay taxes on the property, the tax commissioner again purchased the property at a tax sale. In 1997, the tax commissioner transferred the property back to Wallace. In 1999, the underlying tax sale took place during which an attorney for Wallace purchased the property.

One cannot transfer or convey an interest in real property greater than he has. McDaniel v. Bagby, 204 Ga. 750, 755 (1) (51 SE2d 805) (1949); Copelin v. Williams, 152 Ga. 692 (1) (111 SE 186) (1922); see Foskey v. Dockery, 241 Ga. 26, 27-28 (1) (243 SE2d 70) (1978); Hinkel, Pindar’s Ga. Real Estate Law & Procedure (5th ed.), § 19-20, p. 130. Generally, the tax sale of property belonging to someone other than the delinquent taxpayer is not recognized as a proper sale. Nelson v. Brown, 174 Ga. 150, 154 (162 SE 276) (1932). As the Supreme Court of Georgia held:

[w]here the owner of land fails to return it for taxation, there is provision of law for assessing it for him; and if the owner be not known, there is provision for assessing it as unreturned property, and also provision for collecting the taxes on it. But where the owner fails to return the land, there is no provision of law whereby his title can be divested by levy and sale as the property of another person under a tax execution issued against such other person.

(Citations and punctuation omitted.) Id. See Wiley v. Martin, 163 Ga. 381, hn. 1 (136 SE 151) (1926).

When a person without lawful authority sells and conveys as his own real property belonging to another person and receives the consideration paid, “such pretended sale and conveyance will not operate to divest the title of the owner nor will the purchaser derive any title.” Copelin, supra at 692. A person redeeming property cannot obtain better title than the owner had before the tax sale. Elrod v. Owensboro Wagon Co., 128 Ga. 361, 365 (4) (57 SE 712) (1907).

If, in fact, the tax commissioner conveyed the property to someone other than the defendant in fi. fa. after the SBA redeemed it, and if the tax commissioner attempted a levy and sale of property neither owned by nor titled to Martin but belonging to the corporation, it would appear that the tax commissioner had nothing to sell or to convey. See Nelson, supra; Copelin, supra. The purchaser of property at a void tax sale is entitled only to a return of his money. West v. McBride, 207 Ga. 261, 262 (3) (61 SE2d 133) (1950).

The title searcher testified that the corporation’s deed was recorded in “Deed Book 112-P, Page 230” which corresponds with the book and number of the warranty deed from Rimstrance Leasing to the corporation in 1979. Yet, the legal description of the property in the trial court’s order says, “recorded in the Office of the Clerk of the Superior Court of said County, Book 14-T, Page 110.” No copy of any document recorded at that page number appears in the record before this Court. Thus, here, unlike the situation in GE Capital Mtg. Svcs. v. Clack, 271 Ga. 82, 85 (2) (b) (515 SE2d 619) (1999), there is some evidence of ownership in the property at issue by the aggrieved party. In light of the conflicting claims and incomplete evidence contained in the appellate record, the trial court, in resolving the corporation’s petition to intervene, must determine the exact nature of the corporation’s interest in the property, if any, on the date of the filing of the petition to foreclose. See OCGA § 48-4-81 (c).

2. The corporation also asserts that the trial court erred by failing to dismiss the proceeding after it paid the balance outstanding into the registry of the court.

If, on remand, the trial court finds that Clarence L. Martin, PC. was the owner of record of a fee simple interest on the date that the tax commissioner filed the petition to foreclose, then the corporation has a statutory right to redeem its property contingent only upon its satisfaction of the statutory requirements set forth in OCGA § 48-4-81 (c). If, on remand, the trial court finds that the corporation is estopped from asserting a claim of title due to the conduct of its agent, then no such right would exist. See Pressley v. Maxwell, 242 Ga. 360, 361-362 (249 SE2d 49) (1978); but see Anderson v. Manning, 221 Ga. 421, 423-424 (144 SE2d 772) (1965) (estoppel does not occur when purchaser has actual knowledge of rights of other party who remained silent or did not rely upon action or inaction of that party); Owen v. Miller, 209 Ga. 875, 876 (3) (76 SE2d 772) (1953).

Judgment reversed and case remanded with direction.

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

Decided February 27, 2001.

Constance L. Thomas, for appellant.

Lee, Black, Scheer & Hart, R. Jonathan Hart, Inglesby, Falligant, Horne, Courington & Nash, Elsie R. Chisholm, Owen C. Murphy, Wiseman, Blackburn & Futrell, James B. Blackburn, Emily E. Garrard, for appellees.

       Upon finding that this case did not invoke its title to land jurisdiction or implicate its equity jurisdiction, the Supreme Court transferred the case to this Court.

       According to the tax commissioner, “on September 11, 1987, the U. S. Small Business Administration paid $15,103.53 and Chatham County executed a quitclaim deed to Clarence L. Martin.” But a copy of the quitclaim deed was not included in the appellate record.

       The corporation claims that it did not receive notice of the tax sales in 1982, 1991, or 1999.

       The 1982 tax sale apparently was filed in “Record Book 119-J, Folio 178.”

       According to the newspaper advertisement, a starting bid of $17,562 was required, and the corporation deposited more than $22,000 into the registry of the court.


text:
    A00A2419.
    LUCK v. REGIONS BANK et al.
    (546 SE2d 342)
   Ellington, Judge.

Jesse Von Luck appeals the trial court’s orders entering judgment notwithstanding a mistrial in favor of Regions Bank and Virginia A. Skinner in this dispute arising out of a real estate transaction. Luck sued Skinner for breach of contract and both Skinner and Regions for converting $23,000 Luck alleged should have been disbursed to him upon closing the sale of his chicken farm to Skinner. After declaring a mistrial because the jury could not reach a verdict, the trial court granted Regions’ and Skinner’s motions for judgment notwithstanding the mistrial. Because conflicting evidence remains for jury resolution, we must reverse.

A motion for a judgment notwithstanding a mistrial is analogous to a motion for a directed verdict or motion for judgment notwithstanding the verdict in that the same can be sustained only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom [,] shall demand a particular verdict. OCGA § 9-11-50 (a).

(Citations and punctuation omitted.) Rubio v. Davis, 231 Ga. App. 425-426 (500 SE2d 367) (1998). On appeal from a grant of a motion for judgment notwithstanding a mistrial, we view the evidence and the inferences reasonably supported by the evidence in favor of the nonmovant. See Famiglietti v. Brevard Med. Investors, 197 Ga. App. 164 (1) (397 SE2d 720) (1990); Findley v. McDaniel, 158 Ga. App. 445, 446-447 (1) (280 SE2d 858) (1981).

Viewed in this light, the record reveals that 64-year-old Luck had to sell his chicken farm to avoid foreclosure. Luck, after being in the business since he was 14 years old, lost his contract with his chicken supplier because he could not make the required repairs or upgrades to his facility. Luck, who had a fifth grade education and was illiterate, asked his ñiend, real estate agent Francis Wilkes, to list the property for him. After Wilkes’ listing expired, another agent, Hardy Edwards, approached Luck through Wilkes with an offer on the property from Skinner. Skinner, who lived in Connecticut, had contacted Edwards and asked him to show her some farm properties in Georgia. In late August 1992, Luck agreed to sell his farm to Skinner for $350,000, even though the purchase price was less than the $392,500 he paid for it. Wilkes and Edwards drafted the real estate contract that Luck signed. Edwards drafted the contract’s special stipulations. Both Wilkes and Edwards explained the contract to Luck since he could not read. Edwards then directed Skinner to Regions, which was, at that time, the First National Bank of Jackson County, where she sought financing.

Although Regions wanted Skinner to put down 20 percent of the purchase price, it agreed to make her a 90 percent loan. Regions’ settlement statement reflects that it loaned Skinner $316,800 — 90 percent of the $352,000 sale price, which was adjusted to account for earnest money and moving expenses. To obtain this financing from Regions, Skinner had to make the chicken farm operational so that she could get a letter of commitment from Harrison Company, the same chicken supplier Luck had used. Consequently, the real estate sales contract contained two provisions pertinent to those repairs. First, Exhibit C to the real estate sales contract provided:

All parties hereto acknowledge that this sale is subject to and contingent upon . . . [the purchaser having] negotiated a contract acceptable to them and [having] received a letter of commitment from a poultry integrator of their choosing. Any repairs to the existing poultry house and/or equipment contained therein, in order to obtain said letter of commitment[,] shall be born [sic] solely by purchasers. In as much as the price and terms of this agreement are agreed upon with the improvements and equipment to be delivered to purchasers in the same condition at closing as they are on the date of execution of this agreement.

The contract also contained this special stipulation: “Purchasers to place $23,000.00 of sales proceeds on deposit with lender at the time of closing, said sum to be disbursed to Purchaser upon completion of improvements and repairs to subject property in a like sum following closing.”

Luck, his companion Joanne Moss, and Wilkes testified that the contract, as they understood it, did not obligate Luck to pay for repairs to the property. Although Luck initialed the $23,000 repair amount on the special stipulation, he testified that he did that at Edwards’ insistence only because a dollar amount for repairs was required to be in the contract. Even Edwards, who drafted the special stipulation, testified that Luck was not required to put money into escrow, that the $23,000 was like a “line of credit,” and that he told Luck the money was not coming from him but from the loan proceeds. Wilkes testified that the term “sales proceeds” in the special stipulation was intended to mean the buyer’s loan proceeds. Skinner testified that the $23,000 “was part of the money that I borrowed from the bank as my loan that I’d been paying eight percent on [since] the day that I bought [the farm].” Even Jackie Whitfield, who worked for Regions and disbursed the checks at closing, testified that the $23,000 for repairs was built into the $316,800 loan amount to Skinner. Finally, Regions’ closing attorney testified that he had to call the bank to verify the interpretation of the contract’s special stipulation so that he would know how to allocate the $23,000 on the settlement statement.

Because the bank lost its file on Luck’s real estate sale and on the disbursements made to Skinner, no records were introduced tracing the $23,000 in repair funds to or from any specific account. However, Regions’ settlement statement reveals that $23,000 was taken from Luck at closing, and Whitfield acknowledged that Regions received the funds and held them for Skinner as a “construction loan.” Finally, Whitfield testified that the “bank got into the negotiations with Mr. Luck through his agents” to make the sale and the loan work. He explained that “[ejverybody in the whole deal had to give.”

Both Luck and Moss, however, testified that Luck did not expect to give up $23,000. In fact, they testified Luck expected to walk away from closing with about $40,000. Because Luck and Moss worked all day to clean out the farmhouse for Skinner to occupy that day, they arrived late to the closing. When they arrived, the closing attorney had already left. Whitfield described the closing as “very quiet,” and agreed everyone was “restless” and “anxious” to be done with it. Whitfield handed the closing documents to Luck to sign without explanation. Neither Wilkes, Edwards, nor Luck saw the settlement papers before closing. After signing all the documents, Luck was handed his check for $18,625.80. He was surprised by the amount, but voiced no objection bécause he believed it was too late to do so. Wilkes, however, testified that she complained to Whitfield, who said something to the effect of “take it or leave it.” Luck testified that he believed, at that point, his only alternative was to take the money or lose everything in foreclosure. Luck cashed the check immediately to pay for a place to stay. Although it was after hours, Whitfield had instructed a teller to remain open so that Luck could cash his check.

1. Luck averred that Regions converted $23,000 of his sales proceeds. As our Supreme Court fully explained:

Conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation. . . . [I]n order to be chargeable with conversion, technically it is not necessary that the defendant assert any right of ownership over the property; it is sufficient if the defendant wrongfully assumes dominion over the property inconsistent with the owner’s right. . . . It is immaterial that such dominion was exercised in good faith, for [w]hoever meddles with another’s property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so he acts in good faith.

(Citations and punctuation omitted.) Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (356 SE2d 877) (1987).

Based on the evidence recounted above, a jury could reasonably infer that Regions exercised dominion over $23,000 that should have been distributed to Luck. In fact, a jury could infer that Regions took the $23,000 and then loaned it to Skinner, thereby directly benefit-ting from that use of those funds. Regions argues, however, that it was only doing what the unambiguous language of the contract required. The repairs provisions of this contract, however, are not unambiguous.

Exhibit C of the contract provided that “any repairs . . . shall be born [sic] solely by the purchasers.” A jury could infer that this phrase implicitly charged Skinner with the cost of repairs. Further, one could infer from the use of the word “borne” an obligation to pay. “Borne,” the past participle of the verb “to bear,” can be used to mean “to accept or have as an obligation: to bear the cost.” Random House Webster’s College Dictionary (1995), p. 120. Regions argues that any ambiguity in this provision is resolved by the more specific special stipulation regarding the $23,000 in repair costs. We do not agree.

The stipulation provides that the “Purchasers” were to place “$23,000.00 of the sales proceeds” on deposit with Regions at the time of closing and that it would be disbursed back to them upon completion of the necessary repairs and improvements to the chicken farm. “Sales proceeds” was not defined in the contract. Ordinarily, “proceeds” means “the total amount or profit derived from a sale or other transaction.” Random House Webster’s College Dictionary (1995), p. 1075. If the stipulation obligated the seller to set aside $23,000, it would make sense that Luck was setting aside a portion of his profit to finance the repairs. Here, however, the purchaser was obligated to set aside the funds. Ordinarily, a purchaser is not authorized to do anything with the seller’s profits. What “sales proceeds” means in this context, then, is ambiguous. Further, everyone who testified about the term “sales proceeds” agreed that it was intended to mean the buyer’s “loan proceeds.” Under these circumstances, the jury could infer that Luck reasonably believed the buyer intended to finance the cost of the repairs.

Decided February 27, 2001.

Adkins & Whitfield, Russell L. Adkins, Jr., James R. Whitfield, for appellant.

John T. Brown, Ellisa Garrett, for appellees.

Despite the ambiguity in the special stipulation, Regions directed its closing attorney — who was uncertain enough about the meaning of the stipulation to call for guidance — to take the funds from Luck and distribute them to the bank. A jury could infer from the evidence that Regions did this, as Whitfield’s testimony suggests, to make “the deal work.” We find this evidence, viewed in favor of Luck as the nonmovant, creates a jury issue on Luck’s claim for conversion. Consequently, the trial court erred in granting Regions’ motion for judgment notwithstanding the mistrial. See Kilburn v. Patrick, 241 Ga. App. 214, 216-217 (1) (525 SE2d 108) (1999).

2. Luck also claimed Skinner breached the contract and converted $23,000 of his funds to her use. Luck argued Skinner was required to pay for the repairs either out of her own pocket or to have the cost financed. Skinner admitted she was responsible for making the repairs and that Regions reimbursed her $23,000 to cover the costs she incurred in making the farm operational. Skinner testified that, according to the contract, the $23,000 in repairs was to be financed by Regions out of the loan proceeds, funds which a jury could infer were actually taken from Luck. Because the contract language on this point is ambiguous, see Division 1, supra, and because the evidence of what the parties intended is in conflict, whether Skinner breached the contract and converted Luck’s funds to her own use remains for the jury to resolve. See Kilburn v. Patrick, 241 Ga. App. at 216-217 (1); Karlan, Inc. v. King, 202 Ga. App. 713, 715-716 (1) (415 SE2d 319) (1992). Consequently, the trial court erred in granting Skinner’s motion for judgment notwithstanding the mistrial.

Judgment reversed.

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


author: Eldridge, Judge.

text:
    A01A0053.
    HODGES v. THE STATE.
    (546 SE2d 54)
   Eldridge, Judge.

George W. Hodges was stopped at a roadblock inspection for driver’s licenses and insurance papers and subsequently was charged with defective equipment, no proof of insurance, and DUI. The charges of defective equipment and no proof of insurance were nolle prossed on November 2, 1998. On the same date, following a bench trial, Hodges was convicted of DUI. He appeals from the denial of his motion for new trial. Finding no error, we affirm.

1. Hodges alleges that the roadblock was illegal and that all evidence obtained as a result of such roadblock should have been suppressed. We disagree.

In [State v. Golden], 171 Ga. App. 27 (318 SE2d 693) (1984) and Evans v. State, 190 Ga. App. 856 (380 SE2d 332) (1989), we addressed several factors in determining whether the roadblocks which were there in issue were reasonable and constitutional. However, neither Evans nor Golden establishes absolute criteria which must be satisfied before a roadblock is legitimate. Indeed, in Evans, this Court looked at the totality of the circumstances surrounding the roadblock to decide whether the factors in Golden were satisfied. [Cits.] Our Supreme Court, relying on Golden, has held that where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the screening officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication, a roadblock is satisfactory and is within the constitutional confines of a routine motorist roadblock. LaFontaine v. State, 269 Ga. 251, 253 (497 SE2d 367) (1998).

(Punctuation omitted.) Heimlich v. State, 231 Ga. App. 662, 663-664 (500 SE2d 388) (1998).

At the motion hearing, Officer Maynard Thompson, Jr. of the Georgia State Patrol testified without contradiction as follows: On October 23, 1996, Hodges was stopped pursuant to a license and insurance check roadblock initiated by the Nighthawk Task Force of the Georgia State Patrol. Hodges appeared to be “either intoxicated or very, very sleepy,” and based on his observations, Officer Thompson asked Hodges to pull into the YMCA parking lot. After conducting field sobriety tests, Hodges was placed under arrest.

Officer Thompson further testified that the roadblock had been set up at around 2:00 a.m., approximately 50 feet north of the intersection of Roswell Road and Alberta Road. The area was well lit, and police cars were placed so that their flashing rear lights could be seen by cars approaching in both directions. The roadblock was visible at least 500 to 700 feet before reaching the roadblock to vehicles approaching in both directions. The delay to motorists was minimal. Motorists were stopped for less than a minute to check their “driver’s license[,] proof of insurance [,] and to take a visual and a — using the nose to smell, and see if I could detect [an] odor of intoxicants. If everything was valid, they were on their way.” Officer Thompson confirmed that this roadblock was implemented by Corporal Ned West, who was the supervisor of the Nighthawk Task Force. Officer Thompson further testified that he had received special training in both roadblocks and the detection of motorists who were driving under the influence. Additionally, Officer Thompson testified that all vehicles which approached the roadblock from both directions were stopped. However, because it was drizzling rain and the roads were wet, they made sure they did not allow traffic to back up for safety concerns. If all the officers were “tied up, then we would let traffic go.”

Under such evidence, there was no error in the trial court finding that the roadblock was within the constitutional confines of a routine roadblock and denying Hodges’ motion to suppress.

Hodges argues that because Officer Thompson testified that anyone could make the decision to allow cars to proceed, this Court’s decision in State v. Manos, 237 Ga. App. 699 (516 SE2d 548) (1999) demands reversal. However, “[i]n Manos the record was silent as to the procedures used by field officers to determine whether public safety required them to halt a roadblock temporarily because of heavy traffic.” Boyce v. State, 240 Ga. App. 388, 390 (523 SE2d 607) (1999). Here, Officer Thompson testified that because it was drizzling rain and the road was slick, a determination had been made that it was unsafe to allow any cars to back up on the roadway, and cars were allowed to proceed through the roadblock only when all the officers on duty were busy with other cars. See Gamble v. State, 223 Ga. App. 653, 655 (2) (478 SE2d 455) (1996) (potential hazard from traffic backup justified officers’ conduct in temporarily halting roadblock). Further, in this case, a supervisor, Corporal West, was present at the scene of the roadblock.

2. Having found in Division 1 that the stop was made within the constitutional confines of a routine motorist roadblock, Hodges’ remaining enumeration of error is moot.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Decided February 27, 2001.

Chestney-Hawkins Law Firm, Robert W. Chestney, for appellant.

Joseph J. Drolet, Solicitor, for appellee.


text:
    A01A0182.
    MIMICK MOTOR COMPANY v. MOORE.
    (546 SE2d 533)
   Eldridge, Judge.

Appellee-plaintiff Willie Moore brought a complaint in trover against appellant-defendant Mimick Motor Company (“Mimick”), a Nebraska car dealership, alleging that Mimick had wrongfully repossessed a 1996 Taurus he purchased from Savannah Auto Brokers, Inc. (“Savannah Auto”) d/b/a Payless Rent-a-Car (“Payless”). Moore sought actual and punitive damages or, in lieu of punitive damages, the return of the vehicle with judgment for hire or profits. By amendment to his complaint, Moore added a claim under the Fair Business Practices Act. Mimick later moved to join Savannah Auto d/b/a Payless and its sole owner, Kay Williams, to the litigation as needed for a just adjudication under OCGA § 9-11-19 and filed a motion to dismiss for the superior court’s failure to join the assignee finance company as an indispensable party. Additionally, the parties filed cross-motions for summary judgment. Mimick sought summary judgment upon the claim that no ownership interest could pass to Moore under OCGA § 40-3-32 (d), no certificate of title having been given him as a nonparty to the lease by which Savannah Auto acquired the vehicle from Mimick, or, in the alternative, partial summary judgment on Moore’s claim for punitive damages and otherwise limiting Moore’s recovery to his actual damages proved at trial, i.e., the payments he made on the Taurus alone. Moore sought summary judgment claiming that, as a bona fide purchaser for value under OCGA § 11-2-403 (2), he acquired the paramount ownership interest in the vehicle because Mimick had entrusted the Taurus to transferor-seller Savannah Auto. The trial court denied both motions, further issuing a certificate for immediate review as to its denials of Mimick’s claims. We granted Mimick’s application for interlocutory appeal and affirm.

The record shows that Williams, acting for Savannah Auto, entered into a written leasing agreement with Mimick by which she leased 22 cars for use in her Payless Rent-A-Car franchise. The agreement provided that “this is a contract of leasing only and title to ‘Vehicle(s)’ and ownership at all times shall be and remain in Company or title holder for Company.” The agreement also provided that Mimick would own or designate the title owner of each vehicle and that Savannah Auto acknowledged and agreed it was not buying or obtaining any legal title to any vehicle subject to the lease agreement.

Although Savannah Auto gave Moore a copy of the purchase agreement at the time he purchased the Taurus here in issue, he was not given a title or vehicle registration certificate. Williams later defaulted on her lease agreement with Mimick. Mimick engaged the services of a repossession company which subsequently seized the Taurus from Moore’s possession as being among the vehicles which Mimick had leased to Savannah Auto.

Mimick responded to Moore’s motion for summary judgment in part by the affidavit of the lessor, Peter Mimick III. Therein, Peter Mimick asserted that, at the time he directed the repossession of Mimick’s cars, he had no knowledge that the Taurus was in Moore’s possession; that Williams had sold the vehicle to Moore; and that he then believed Williams used all of Mimick’s vehicles in her rent-a-car business.

1. (a) Summary judgment. The superior court did not err in denying Mimick summary judgment upon its OCGA § 40-3-32 (d) claim. Mimick asserts its entitlement to summary judgment under OCGA § 40-3-32 (d) because as a nonparty to the lease agreement between Mimick and Williams, Moore could not obtain any right, title, or interest in the Taurus until he obtained a certificate of title to the Taurus duly transferred to him as required by law. However, it has long been settled that

the Georgia Title Certificate Law . . . provided] a simple statutory method of proving ownership [of] vehicles, but it is not exclusive. . . . The statute provides that the certificate of title is prima facie evidence of the facts appearing in the certificate, including the name of the owner. The statute did not change the existing case law as to the manner in which ownership of chattels including automobiles could be proven.

(Citations omitted.) Hightower v. Berlin, 129 Ga. App. 246, 248 (5) (199 SE2d 335) (1973); see also Bank South v. Zweig, 217 Ga. App. 77, 78 (1) (456 SE2d 257) (1995); State v. Banks, 215 Ga. App. 828, 830 (1) (452 SE2d 533) (1994) (substantive law of contract rather than Motor Vehicle Title Certificate Act creates and defines property interests in motor vehicles); Rome Bank &c. Co. v. Bradshaw, 143 Ga. App. 152, 155 (237 SE2d 612) (1977). Further, Moore has not appealed from the superior court’s denial of his motion for summary judgment upon the claim that he should prevail in the instant ownership dispute as a bona fide purchaser for value under OCGA § 11-2-403 (2). That ownership may also be proved thereunder is illustrative of the fact that OCGA § 40-3-32 (d) is not dispositive of ownership in a motor vehicle. Accordingly, it was not error to deny summary judgment to Mimick. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

(b) Partial summary judgment (punitive damages). Mimick supported its motion for summary judgment by Peter Mimick’s affidavit in which he attested that, having no knowledge of any sale, Mimick repossessed the vehicles it leased to Williams, among them the Taurus that Williams purportedly sold to Moore. However, Moore did not come forward in response with more than the claim that the evidence showed that Mimick had proceeded wilfully. Bare conclusions and contentions unsupported by an evidentiary basis in fact are insufficient to oppose a motion for summary judgment. Zampatti v. Tradebank Intl. Franchising Corp., 235 Ga. App. 333, 336-337 (2) (508 SE2d 750) (1998). Consequently, the superior court erred insofar as it denied Mimick partial summary judgment on the issue of punitive damages. Lau’s Corp. v. Haskins, supra; Bonard v. Lowe’s Home Centers, 224 Ga. App. 85, 86 (479 SE2d 784) (1996) (punitive damages authorized under OCGA § 51-12-5.1 (b) when clear and convincing evidence establishes that defendant’s conduct exhibits wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences).

(c) Partial summary judgment (compensatory damages). It is undisputed in the evidence that Moore purchased the Taurus on an installment contract basis, making a down payment and only several monthly payments thereafter. Moreover, the evidence reflects that the finance company stopped sending Moore monthly statements and wrote off the remaining amount owing on the loan.

When [as here] the plaintiff elects to demand a verdict for damages alone . . . and the evidence shows that the interest of the plaintiff in the property at the time of the conversion is less than that of absolute ownership, the measure of damages will be the value of the plaintiff’s interest therein, whatever it may be.

Commercial Auto Loan Corp. v. Baker, 73 Ga. App. 534, 540 (37 SE2d 636) (1946); Douglas Motor Co. v. Watson, 68 Ga. App. 335, 336-337 (22 SE2d 766) (1942). Reduced to the dimensions of this case, the measure of Moore’s actual damages would be his equity in the Taurus, that is, the difference between the market value of the vehicle upon its repossession less the balance due on the purchase price of the automobile. Ali v. World Omni Financial Corp., 240 Ga. App. 9 (522 SE2d 525) (1999). Under these circumstances, the superior court erred in denying Mimick partial summary judgment on the question of the measure of compensatory damages as limited to the portion of the Taurus that Moore had paid for, rather than its full purchase price. Lau’s Corp. v. Haskins, supra.

2. Mimick contends that the superior court erred in denying its motion to join Williams and her rent-a-car business, Savannah Auto d/b/a Payless, as necessary to just adjudication under OCGA § 9-11-19. “There are two essential tests of an indispensable party [under OCGA § 9-11-19 (a)]: (1) can relief be afforded the plaintiff without the presence of the other party? (2) can the case be decided on its merits without prejudicing the rights of the other party?” Pickett v. Paine, 230 Ga. 786, 796 (199 SE2d 223) (1973). Applied in the instant circumstances, these tests show that Williams and Savannah Auto d/b/a Payless are not indispensable parties in that the evidence reflects only their indirect involvement in the subject matter of the complaint in trover. Mimick admits repossession of the Taurus at its behest. Only the proper measure of damages remains in issue, and resolving this question does not implicate the potential for prejudice to parties beyond the lawsuit. Under these circumstances, the superior court did not err in denying Mimick’s motion for joinder.

3. In light of our disposition in Division 1, we need not address Moore’s remaining claim of error.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Miller, J., concur. Andrews, P. J., disqualified.

Decided February 27, 2001.

Forbes & Bowman, Morton G. Forbes, Johnny A. Foster, for appellant.

Murphy A. Cooper, for appellee.

       By his motion for summary judgment and response in opposition to Mimick’s motion for summary judgment, Moore states that he learned in discovery that Mimick sold the vehicle after repossessing it.

       OCGA § 40-3-32 (d) provides
      [ejxcept as provided in Code Section 40-3-33 and as between the parties, a transfer by an owner is not effective until this Code section and Code Section 40-3-33 have been complied with; and no purchaser or transferee shall acquire any right, title, or interest in and to a vehicle purchased by him unless and until he shall obtain from the transferor the certificate of title thereto, duly transferred in accordance with this Code section.

       OCGA § 11-2-403 (2) provides “[a]ny entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business.”

       Mimick enumerated that the superior court erred in denying its motion to dismiss for failure to join the finance company as an indispensable party, contending that “[i]f [Moore’s] compensatory damages are not limited to his equity in the Taurus, then the finance company is an indispensable party.” (Emphasis supplied.)