text:
    A96A2087.
    FEGGANS et al. v. KROGER COMPANY.
    (476 SE2d 822)
   Eldridge, Judge.

Appellants have appealed from the trial court’s order granting summary judgment to appellee, The Kroger Company (“Kroger”).

This lawsuit arises out of Ocie Feggans’ alleged slip and fall that occurred on November 17, 1994, at the Kroger store located at 3251 Highway 5, in Douglasville, Georgia. Joseph Feggans is the spouse of Feggans and claims loss of consortium due to her injuries.

Feggans entered the Kroger store at approximately 1:50 a.m. As Feggans was walking past the cosmetic counter, on her way to the dairy section, she slipped on a watery type substance and fell. At the time of her fall, Feggans was looking at the floor, but did not see the water prior to her fall. However, Feggans was able to see the water, after it was pointed out to her by a witness to the incident, when she bent over and looked down at the floor. Feggans, after her fall, observed additional streaks of water in the same path.

At the time of Feggans’ fall, an employee of Precision Floor Care, who is not a party to this action, was cleaning appellee’s floor, which included sweeping, mopping the floor with water, and buffing.

1. In appellants’ first enumeration of error, appellants allege that it was error for the trial court to grant summary judgment to appellee “if such motion was granted based on defendant’s claim that it was not in possession of the floor at the time of plaintiff’s slip and fall.”

Under OCGA § 51-2-4, “an employer generally is not responsible for torts committed by his employee when the employee exercises an independent business, and is not subject to the immediate direction and control of the employer.” “However, an employer is liable for the contractor’s negligence if he ‘retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relationship of master and servant or so that an injury results which is traceable to his interference.’ OCGA § 51-2-5 (5).” Kraft General Foods v. Maxwell, 219 Ga. App. 211 (464 SE2d 639) (1995).

Under Kroger’s agreement with Precision Floor Care, other than specifying the general parameters for what must be cleaned and what services were to be provided, the manner, method, and means of the cleaning services were left entirely to Precision Floor Care. Precision Floor Care and its employees were able to operate the cleaning equipment and apply all cleaning materials, under its own discretion and under its own supervision. Moreover, other than requiring Precision Floor Care to perform its work between the hours of 11:00 p.m. and 7:00 a.m., Kroger did not control specifically when any particular duties were to be performed. The only exception to this rule was if Precision Floor Care made a determination that the floor needed to be stripped. In such circumstances, Kroger management would then decide if the store needed to be closed or if only certain aisles had to be taped off and closed, and what would be the best time for such closure to occur so as not to affect business. This was not the case here.

Appellants assert that Kroger assumed part of the responsibility for training and disciplining the employees of Precision Floor Care. This is not true under the record before this Court. Kroger had only the “general right to order the work stopped or resumed, to inspect its process or to receive reports, to make suggestions or recommendations and to prescribe alterations and deviations” of the work performed, which does not establish that the proprietor exercised control over the manner in which the independent contractor did its work. Englehart v. OKI America, 209 Ga. App. 151, 152 (433 SE2d 331) (1993). “Such a general right does not mean that the contractor is controlled as to his methods of work. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” Id. at 152.

In the case sub judice, James Gardener, who is the grocery manager for Kroger, testified in his deposition that he checks to make sure the floor care service has placed signs in the area on which the floor service is working. This fact alone does not establish that Kroger trains the employees of Precision Floor Care Service. It merely establishes that Kroger is insuring that Precision Floor Care is complying with their contractual obligations. As this Court has held in Slater v. Canal Wood Corp. of Augusta, 178 Ga. App. 877, 880 (345 SE2d 71) (1986), “ ‘[t]he right to observe the fulfillment of the safety requirements with the right to order them fulfilled if the contractor did not do so in the contract is not such control of the work as intended by § 414 of the Restatement 2d, Torts, (or OCGA § 51-2-4) so as to impose liability on the defendant.”

Appellants also contend that Kroger controlled the manner in which the floor service performed its job because the deposition testimony of James Gardener shows that Kroger controlled the order in which the services were performed on certain evenings by requiring Precision Floor Care to clean the non-grocery aisles first. However, appellants have misstated and misconstrued Gardener’s testimony. Gardener testified, “We start at 10:00 at night spotting groceries. They spot the whole truck here, and they put it up which starts around midnight. It takes about two hours to put fifteen-hundred cases out. . . . We separate it per aisle back in the back room and bring them out. ... I would basically say this is done before he actually starts mopping. Normally, his first — I don’t know what his procedure is, to be honest with you; I would assume it’s to sweep the floor first. I would think by the time he’s ready to actually start mopping the truck has been processed.” Gardener’s testimony in no way shows Kroger controlled the manner in which Precision Floor Care performed its job. In fact, Gardener’s testimony is that he does not know what the floor care procedure is.

Appellants also claim that Kroger controls the manner in which the floor service employees get paid by requiring Precision Floor Care to leave their employees’ paychecks with Kroger on each Monday. Furthermore, appellants suggest that Kroger does not pay for services on evenings the floor care service does not work. These assertions by appellants do not establish that Precision Floor Care was an agent of Kroger. The deposition testimony of James Gardener shows that the employees for Precision Floor Care are paid by the owner of Precision Floor Care. The fact that appellee requires the checks to be left at Kroger to ensure the employees are paid by Precision Floor Care does not establish that appellee exercises control over the manner in which the floor cleaner is paid, and that an agency relationship exists. Additionally, appellants’ assertion that Kroger may deduct payment for services not performed does not establish an agency relationship between the two. Kroger has the right not to pay an independent contractor for services not performed. This Court finds that there is no genuine issue of material fact, and the undisputed facts, viewed in the light most favorable to the appellants, show it was not error for the trial court to grant summary judgment to appellee on the issue that Precision Floor Care was an independent contractor of Kroger.

However, even though Precision Floor Care is an independent contractor of appellee, and appellee could not be vicariously liable, appellee would still owe a duty to Feggans to exercise ordinary care to keep the premises and approaches safe unless Kroger had delivered full and complete possession of the premises to Precision Floor Care either on a temporary or permanent basis. Little v. Liberty Savings Bank, 191 Ga. App. 732 (382 SE2d 734) (1989); Towles v. Cox, 181 Ga. App. 194 (351 SE2d 718) (1986). In the case sub judice, appellee is a grocery retailer who was open for business. They did not exclude their customers from the premises or a portion of the premises during the time that Precision Floor Care swept, mopped with water, and buffed the floor. Even though James Gardener testified in his deposition that, when the cleaning service arrived, Kroger ceased to do their routine spot-check of the floor, there is conflicting testimony that indicates that Kroger may not have relinquished full and complete control of the floor. Employees of Kroger were present in the store during the time Precision Floor Care swept, mopped, and buffed the floor. On three to four nights during the week, around 10:00 p.m., Kroger stocked its shelves. While Kroger employees were stocking the shelves, they were often in the same location as the employee of Precision Floor Care. One of the people to whom Feggans reported her slip and fall was later identified as a Kroger stock person.

Furthermore, there is a conflict in the evidence as to who actually made the decision whether to close the entire store during a floor strip or only to close off certain aisles. William Snow, a co-manager of Kroger, testified that Kroger required Precision Floor Care to consult with Kroger on special events like floor strips, what sections needed to be done, and if the store needed to be closed, but the decision to close the store, or only certain aisles, was up to Precision Floor Care. However, James Gardener testified that Precision Floor Care would let him know in advance, he would talk with upper management, and they would decide if the store needed to be closed or if an aisle could be taped off.

Also, James Gardener testified that when he arrives at work, especially on nights when they are re-stocking the shelves, he makes sure the employee of Precision Floor Care has “his signs and stuff” together.

Therefore, a material issue of fact exists, as to whether Kroger had turned full possession and control of the floor over to Precision Floor Care, which issue can only be decided by a jury, and it was error for the trial court to grant appellee’s motion for summary judgment on this issue.

2. Appellants, in their second enumeration of error, contend that the trial court erred by granting appellee’s motion for summary judgment, “if such motion was granted based on appellee’s claim of lack of knowledge superior to plaintiff’s knowledge of the hazardous condition which caused plaintiff’s slip and fall.”

“[A]n owner or occupier of land is liable in damages to invitees who come upon the land for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe. [Cit.] Accordingly, an owner who has either actual or constructive knowledge of defects or dangers on the premises has a duty to warn others coming on the premises who do not have knowledge of the defects and/or dangers and who through the exercise of ordinary care would not discover them. [Cit.] Liability does not extend from ownership alone, but only from a breach of this duty. [Cit.]” Murphy v. Blue Bird Body Co., 207 Ga. App. 853, 857 (429 SE2d 530) (1993). When an independent contractor is on the premises, and the owner or occupier has not delivered full possession and complete control of the premises, the owner or occupier of the premises must use ordinary diligence to insure that the property remains safe for invitees to the property. Such duty on the part of the owner or occupier of the premises is a nondelegable duty. See Towles, supra at 197.

“ ‘Ordinary diligence does not require an inspection of property in the absence of any reason for the owner to believe that such an inspection is necessary. (Cit.)’ [Cit.]” Towles, supra at 196. However, in the case sub judice, appellee had reason to believe that such an inspection was necessary. Appellee had actual knowledge that Precision Floor Care was on the premises sweeping, mopping with water, and buffing the floor. Appellee knew customers were shopping in the store and that in the past Precision Floor Care had failed to post warning signs or to post warning signs adequately. At the time Feggans entered the store the circumstances were such that would “ ‘put an ordinarily prudent man on notice of the probability of danger[,]’ ” and it was foreseeable to appellee that an invitee could be injured if appellee did not use ordinary care to “ ‘guard, cover, or protect the defective portion of the premises. . . . [Cit.]’ ” Id. at 197. For appellee to be held liable for negligence, “ ‘ “it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen that some injury would result from his act or omission, and that consequences of a generally injurious nature might result.” (Cit.)’ [Cit.]” Id.

Decided October 2, 1996.

Rodney L. Eason, for appellants.

Webb, Carlock, Copeland, Semler & Stair, James R. Doyle II, Douglas A. Wilde, for appellee.

There is contradictory evidence as to whether or not warning signs were posted on the premises, and if such warning signs were posted, whether they were posted in the area in which Feggans fell, or in the areas she had to walk through prior to her fall. Feggans testified that she did not see any warning signs before she slipped and fell, but that after she fell she noticed a warning sign and a mop bucket very close to the lane where the cash register was located. The cash register was riot near the cosmetic counter where Feggans fell. However, Julia Revils, who is an employee of Kroger, testified that a warning sign had been placed at the front door and in the cosmetic area. William Snow testified that there were “floor signs down in front of the registers and in the entryway between the first register and the pharmacy section.”

Furthermore, Feggans testified that when she walked through the front of the store, and until such time as she reached the area of the cosmetic counter, she was looking at the floor, and that her view of the floor was in no way obstructed. She further testified that she did not see the water prior to her fall, but was able to see the water, after it was pointed out to her by a witness to the incident, when she bent over and looked down at the floor.

Therefore, a material issue of fact exists as to appellee’s claim of lack of knowledge superior to Feggans’ knowledge of the hazardous condition which caused Feggans’ slip and fall, and it was error for the trial court to grant appellee summary judgment on this issue.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A96A2145.
    SMITH v. CRUMP.
    (476 SE2d 817)
   Eldridge, Judge.

Joyce Crump, appellee, sued James Smith, Jr., appellant, in the State Court of DeKalb County on March 9, 1995, for injuries received in a motor vehicle collision which occurred on November 17, 1994. Appellant was timely served on March 16, 1995, and answered on April 14, 1995, demanding a jury trial.

The case came up on the jury calendar on February 9, 1996. Appellant filed a timely motion in limine, seeking to exclude the qualification of the jury with appellant’s insurance carrier. The case was called for trial on February 20, 1996, when the motion in limine was heard and denied.

The jury returned a verdict for the appellee on February 22, 1996, in the amount of $1,050,597, and judgment was entered on February 28, 1996. A motion for remittitur or, in the alternative, a new trial was filed on March 7, 1996. The motion was heard and denied on May 6, 1996. Notice of appeal was filed on June 4, 1996.

At trial, the evidence showed that appellee received significant soft tissue and neurological injuries to her spine, and following spinal surgery to remove discs and fuse her cervical spine, her medical expenses totaled $36,148.91. Appellee’s complaints involved severe headaches, neck pain, radicular pain from the neck down the arm, low back pain, left knee injury, right ankle injury, inability to sleep, depression, and associated short temper. Dr. Saba, appellee’s neurologist, found right ankle swelling, weakness in the left knee, decreased sensation at the right C-7 vertebra, 30 percent reduction in range of motion in the neck and low back, and muscle spasms in the neck and low back. Dr. Saba’s diagnosis as of January 10, 1995, consisted of post concussion syndrome, depression, headaches, strained knee and ankle, and severe injury to the low back and neck, indicating multiple disc herniations. After an M.R.I. had been performed, Dr. Saba diagnosed a displaced L5-S1 disc, a disc problem at C3-4, and herniated discs at C4-5, C5-6, and C6-7. Dr. Goodman, appellee’s neurosurgeon, saw her on June 20, 1995, and performed a myelogram on her on June 28, 1995, which confirmed that she had large disc herniations at C4-5 and C6-7, with likely herniation at C56. On August 28, 1995, Dr. Goodman performed a cervical spinal fusion after surgically removing the affected discs. As late as November 1995, Dr. Goodman found postoperative muscle spasms and pain, which prevented appellee from being able to work. Dr. Saba, on October 31, 1995, found that appellee had headaches and chronic sleep problems. Prior to surgery, appellee’s disability rating to the body as a whole had been at 19 percent; after surgery the rating was reduced to 17 percent.

Appellee had limited education and job skills, having previously worked in the hotel/motel industry as a housekeeper, earning $4.25 per hour. She was totally disabled from returning to this or any other physical work by her injuries. She was 38 years of age at trial and her injuries were permanent, with future pain and suffering expected.

1. Appellant’s first enumeration of error contends that the trial court erred by allowing the jury to be qualified as to appellant’s insurance liability carrier, causing prejudice to appellant.

The first qualification of a jury as to insurance occurred in City of Sandersville v. Moye, 25 Ga. App. 64 (4), 65-66 (102 SE 552) (1920).

In Bibb Mfg. Co. v. Williams, 36 Ga. App. 605 (1), 607 (137 SE 636) (1927), counsel for the insured argued that the qualification of the jury as to insurance would have a prejudicial effect on the insured. This Court then held: “where it appears that the defendant is in fact insured against liability, the employees, stockholders, and relatives of stockholders of the insurance carrier are disqualified to serve as jurors in the case; and in such case it is not error for the court, at the request of the plaintiff and over the objection of the defendant, to purge the jury by inquiring whether any juror is an employee or stockholder of, or related to a stockholder of, the insurance company.” Id.

The Supreme Court held that it was reversible error not to voir dire and to remove all jurors who were employees or stockholders, or related by blood or by marriage to a stockholder or employee, of an insurance company interested in the case. In Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549 (174 SE 131) (1934), the court held: “We may concede that the mention of an indemnity contract in the argument or any other impertinent reference thereto would be objectionable; but there is a vast difference between instances of this character and a bona fide effort to preserve the right of trial by an impartial jury.” See Tatum v. Croswell, 178 Ga. 679 (174 SE 140) (1934); Coleman v. Newsome, 179 Ga. 47 (174 SE 923) (1934); Rogers v. McKinley, 52 Ga. App. 161 (30), 164 (182 SE 805) (1935); OCGA § 15-12-135.

This Court, not unmindful of the incidental effect of qualifying the jury as to the insurance carrier, has consistently held that it would be reversible error not to do so, because, presumptively, such failure would be harmful to the plaintiff in obtaining a fair and impartial jury. In Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285, 288 (76 SE2d 647) (1953), this Court held that “[ujnder the circumstances of this case, there was a strong probability that the insurance company was to some extent interested in the outcome of the case, and this was sufficient to authorize the trial judge to qualify the jury panel with respect to their interest in the insurance company.” See Stevens v. Wright Contracting Co., 92 Ga. App. 373, 378-380 (88 SE2d 511) (1955); United Security Agency v. Sims, 161 Ga. App. 167 (288 SE2d 117) (1982).

In Weatherbee v. Hutcheson, 114 Ga. App. 761 (1) (a) (152 SE2d 715) (1966), this Court found that in the case of mutual insurance companies, the policyholder had a direct pecuniary interest in the outcome of litigation involving one of its policies. The Court held: “If the company is a mutual company, in the assets of which the policyholders have an interest, they are disqualified; aliter if the company is a stock company.” Accord Bailey v. Todd, 126 Ga. App. 731 (15), 741 (191 SE2d 547) (1972); Thompson v. Sawnee Elec. &c. Corp., 157 Ga. App. 561 (2), 562-563 (278 SE2d 143) (1981); Crosby v. Spencer, 207 Ga. App. 487 (6), 490 (428 SE2d 607) (1993).

Only after Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991) (overruled by Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992)) have counsel for insureds sought to raise an issue of qualifying the jury as to the insurers. Absent relevance and materiality, the mention of insurance has been deemed harmful. However, not all mention of insurance in the presence of the jury is deemed harmful; since the 1930’s, direct action against insurers has been permitted when the tortfeasor is an intrastate common or contract carrier, and the policy of insurance must be put into evidence to prove coverage with the deletion of the amount of coverage. OCGA § 46-7-12; St. Paul Fire &c. Co. v. Fleet Transport Co., 116 Ga. App. 606 (158 SE2d 476) (1967); Carolina Cas. Ins. Co. v. Davalos, 246 Ga. 746 (272 SE2d 702) (1980). Since 1963, with the passage of the Georgia Uninsured Motorist Act, Ga. L. 1963, p. 588, OCGA § 33-7-11 (d), the insurer has had the option of answering in its own name or in the name of the uninsured motorist; for legal reasons, insurers have preferred to defend in their own names. See State Farm Mut. Auto. Ins. Co. v. Horace Mann Mut. Ins. Co., 125 Ga. App. 411 (188 SE2d 171) (1972); Home Indem. Co. v. Thomas, 122 Ga. App. 641 (178 SE2d 297) (1970); State Farm Mut. Auto. Ins. Co. v. Jiles, 115 Ga. App. 193 (154 SE2d 286) (1967). Mandatory motor vehicle liability insurance, either as no fault or under OCGA § 33-34-5, has been in effect in Georgia since 1974. Ga. L. 1974, p. 113. Therefore, to apply the quote from the late Judge Hall’s concurrence in Young v. Carter, 121 Ga. App. 191, 193 (173 SE2d 259) (1970), “Any juror who doesn’t know that there is liability insurance in the case [of a motor vehicle collision] by this time should probably be excused by virtue of the fact that he or she is an idiot.” Since 1921, when the first jury was qualified as to insurance coverage and the various other situations when insurance is properly before the jury, there has been no systemwide failure of justice caused by the knowledge of the existence of insurance. Since Denton, this Court has held in both Crosby v. Spencer, supra, and Franklin v. Tackett, 209 Ga. App. 448 (2), 450 (433 SE2d 710) (1993), that Denton had no legal effect on the necessity for the trial court to qualify the jury as to the insurance carrier.

Chief Judge Beasley made a well-reasoned special concurrence in Franklin v. Tackett, supra. It is highly seductive in its logic: “Without the link of knowledge, there is no disqualifying interest, because the interest will not affect the decision-making.” Id. at 453. Ignorance is purifying of interest; so long as the juror remains in ignorance and never suspects that there is an interest, what harm can there be. However, what if they were not truthful in their voir dire to disclose employment or stock ownership on purpose; what if during the trial they suddenly become aware of their interest; or what if, more insidious, someone reveals the common interest between the juror and the party on trial by a company logo on a lapel pin, stationery, file folder or anything that would make the association in the juror’s mind? The issue is not whether or not the juror can be fair and impartial while having the interest; if this were the issue, then ignorance would prevent prejudice. The issue is the per se disqualification under OCGA § 15-12-135, as a matter of law, with the presumption of prejudice. See Patterson v. Lauderback, 211 Ga. App. 891 (2), 895 (440 SE2d 673) (1994) (overruled on other grounds). The Supreme Court in Melson v. Dickson, 63 Ga. 682, 686 (1) (36 AR 128) (1879) held: “A big part of the battle is the selection of the jury, and an impartial jury is the corner-stone of the fairness of trial by jury.” It becomes as important that there be a public perception of fairness and impartiality of a jury as the actual impartiality of the jury; otherwise, confidence in trial by jury is eroded. This Court and the Supreme Court balanced the effect of harm to the insured by qualifying the jury as to the insurer against the constitutional, fundamental right to a trial by an impartial jury and determined, as a matter of public policy, that the harm, if any, to the insured was vastly outweighed by the fundamental right to an impartial jury. The Supreme Court held in Atlanta Coach Co. v. Cobb, supra at 549, that “a bona fide effort to preserve the right of trial by an impartial jury” mandates such qualification, notwithstanding any resulting harm.

This Court is bound by such precedent to hold that the trial court did not err in having the jury qualified as to the insurer. See Strickland v. Stubbs, 218 Ga. App. 279 (1) (459 SE2d 473) (1995); Byrd v. Daus, 218 Ga. App. 145 (1), 146 (460 SE2d 819) (1995); Gonzalez v. Wells, 213 Ga. App. 494 (1), 495 (445 SE2d 332) (1994); Patterson v. Lauderback, supra at 895-896.

2. The second enumeration of error is that the trial court erred in denying the motion for remittitur or, in the alternative, a motion for new trial, on the grounds that the verdict was excessive and that it manifestly appears from the record that the verdict was the result of prejudice, bias, corruption, or gross mistake.

OCGA § 51-12-12 does not empower the trial judge to reduce an award, but empowers the trial judge to seek the parties to accept an additur or remittitur upon the threat of a new trial and allows the judge to order a new trial on the issue of damages only; refusal by either party to accept leaves the judge with the power only to grant or to deny a new trial and to decide what issues will be retried. See Spence v. Hilliard, 260 Ga. 107 (389 SE2d 753) (1990); Jacobsen v. Haldi, 210 Ga. App. 817 (437 SE2d 819) (1993). Therefore, the criteria under either a motion for remittitur or new trial rests upon the sound exercise of discretion in granting or denying either or both such motions, as the case law applicable to the denial of a new trial would govern both motions.

The motion alleges “[t]hat the verdict was based on passion, undue bias, gross mistake, or prejudice.” However, the trial transcript reveals no improper arguments, inflammatory testimony, prejudicial evidence with no probative value, or appeals to prejudice such as to excite “passion, undue bias, gross mistake or prejudice.”

The evidence at trial showed a plaintiff who received serious permanent injuries to her cervical spine, requiring surgery to remove multiple discs and to accomplish the fusion of her neck. Appellee is a woman of limited education and job skills; thus the permanent physical impairment on her ability to lift, bend, twist, stoop and perform other physical activities has permanently precluded her from securing any job that she was previously capable of handling; and has also limited her other life activities. At 38 years of age, appellee has a long life of foreseeable medical problems related to her injuries, as well as mental pain and suffering. The chronic depression and sleep problems are part of the pain and suffering.

Under Georgia law, pain and suffering in the past, present, and future are measured by the enlightened conscience of a fair and impartial jury. There exists no rule or yardstick against which damages for pain and suffering are to be measured, as suggested by the appellant, who would have such damages as some multiple of special damages for medical expenses and lost wages. The reason is simple; if such an objective yardstick is applied, then the young, the old, the sick, the disabled, the rich, the poor, the unemployed, and the underemployed would be treated differently than the fully employed when having such special damage cap would apply. See Atlanta &c. R. Co. v. Wood, 48 Ga. 565 (1873); Southern Cotton Oil Co. v. Skipper, 125 Ga. 368 (54 SE 110) (1906); Sam Finley, Inc. v. Russell, 75 Ga. App. 112 (42 SE2d 452) (1947); Atlanta &c. R. Co. v. Gilbert, 82 Ga. App. 244 (60 SE2d 787) (1950).

“ ‘Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear “exhorbitant,” “flagrantly outrageous” and “extravagant.” “It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush.” It must carry its death warrant upon its face.’ ” Seaboard System R. v. Taylor, 176 Ga. App. 847, 849 (2) (338 SE2d 23) (1985); CSX Transp. v. Darling, 189 Ga. App. 719 (1), 721 (377 SE2d 217) (1988); Realty Bond &c. Co. v. Harley, 19 Ga. App. 186 (2), 187-188 (91 SE 254) (1916); Candler v. Smith, 50 Ga. App. 667, 677 (9) (179 SE 395) (1935); accord Ford Motor Co. v. Stubblefield, 171 Ga. App. 331 (7), 341 (319 SE2d 470) (1984).

Decided October 2, 1996

Johnson, Dangle & Parmer, Robert F. Dangle, Barton R. Bright III, for appellant.

Smith, Gambrell & Russell, Matthew S. Coles, Swift, Currie, McGhee & Hiers, Jonathan M. Engram, Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Linda A. Klein, Stephen M. Ozcomert, for appellee.

In Atlantic Greyhound Corp. v. Austin, 72 Ga. App. 289, 292 (33 SE2d 718) (1945), this Court held: “This court does not have as broad discretionary powers as are conferred on trial judges in setting aside verdicts as excessive. When a case comes before this court, after the refusal of a new trial by the presiding judge, it comes not only with the presumption in favor of the verdict, but also stamped with the approval of the judge who tried the case, and where no prejudice or bias or corrupt means in reaching the verdict appear, we are not authorized to set it aside as being excessive.” See Reliance Ins. Co. v. Bridges, 168 Ga. App. 874 (16), 890 (311 SE2d 193) (1983); St. Paul Fire &c. Ins. Co. v. Dillingham, 112 Ga. App. 422, 425 (145 SE2d 624) (1965); Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285 (8), 294 (76 SE2d 647) (1953); Brown v. Service Coach Lines, 71 Ga. App. 437 (31 SE2d 236) (1944).

The verdict was within the evidence; appellant concedes in his brief that, with the maximum loss of future earnings and all other special damages, such sum would come to $409,119.31. This would leave approximately $600,006 in damages for a lifetime of pain and suffering with a permanent physical disability, chronic depression, headaches, and sleep problems. The jury, in their enlightened conscience, gave a verdict which the trial court declined to disturb; nor will this Court find error.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Per curiam.

text:
    A96A1492.
    MOSS v. RUTZKE.
    (476 SE2d 770)
   Per curiam.

Corinne Rutzke sued her former client Ernest Moss for amounts past due under the parties’ legal services contract. Moss counterclaimed for fraud and conspiracy to defraud. The trial court granted summary judgment in favor of Rutzke on both the main action and the counterclaim and awarded judgment against Moss for $1,950.04 plus interest, post-judgment interest and' court costs. Held:

1. On May 1, 1996, this Court ordered pro se appellant Ernest Moss to file a separate enumeration of error in the above-captioned case in accordance with Court of Appeals Rule 22, which requires appellants to state separately and concisely each issue that they want the Court to decide on appeal. Calhoun v. State, 213 Ga. App. 436, 437 (444 SE2d 860) (1994). See, e.g., Benfield v. State, 224 Ga. 139 (160 SE2d 398) (1968); accord Russell v. State, 225 Ga. 371 (169 SE2d 124) (1969) (incorporation of enumeration of error in the brief fails to comply with the statutory rule and presents nothing for appellate review). Failure to file the requisite enumeration within the time specified may be deemed a failure to perfect the appeal. Benfield, 224 Ga. at 139.

In response to this Court’s order, Moss filed a document titled “Appellant’s Delineation of Enumeration of Errors” consisting of 22 pages of alleged “errors and inconsistencies” with more than 40 so-called “instant facts” and many “indisputable facts.” In this delineation, Moss merely recycled verbatim pages 3-23 of his original appellate brief omitting the section labeled argument and reversing the order of two paragraphs.

This is not a slight deviation from Court of Appeals Rule 22. Even holding his pro se filing to a less stringent standard than if drafted by an attorney, Moss’s filing did not constitute an “enumeration of errors” within the meaning of Rule 22. Thompson v. Long, 201 Ga. App. 480, 481 (1) (411 SE2d 322) (1991). Even pro se appellants must abide by appellate practice rules. The appellee had a right to have the issues to be decided set forth in a clear and concise manner so that she could properly respond to each enumeration with argument and citation of authorities. Because Moss failed to make the requisite filing and offered no valid reason for his failure to fully comply with this Court’s order, his appeal is accordingly dismissed. Wordu v. State, 216 Ga. App, 552, 553 (1) (455 SE2d 101) (1995).

2. Rutzke moved for the imposition of damages for filing a frivolous appeal. The evidence before the trial court showed Moss failed to pay the amounts required under the contract for legal services and had no valid defense. Nor was there any evidence of fraud as asserted by his counterclaim. Nevertheless, despite the many deficiencies in both the form and content of Moss’s appeal, it is not obvious that it was filed solely to interpose delay. OCGA § 5-6-6; Scales v. American Lease Plans, 153 Ga. App. 670, 672 (3) (266 SE2d 323) (1980); Prattes v. Southeast Ceramics, 132 Ga. App. 584, 586 (3) (208 SE2d 600) (1974). Therefore, Rutzke’s motion is denied.

Appeal dismissed and motion for damages denied. Division per curiam.

All the Judges concur.

Decided September 11, 1996

Reconsideration denied October 3, 1996

Ernest Moss, pro se.

Webb, Carlock, Copeland, Semler & Stair, Robert M. Ethridge, Thomas M. Boyle III, for appellee.

Corinne R. Rutzke, pro se.


author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A96A0912.
    HOUSING AUTHORITY OF THE CITY OF ATLANTA v. JEFFERSON.
    (476 SE2d 831)
   Blackburn, Judge.

Housing Authority of the City of Atlanta (AHA) appeáls the trial court’s denial of summary judgment on the issue of whether it had the duty to inspect for the presence of a smoke detector when qualifying a house for use under federal Section 8 Housing Assistance Payments Program for Existing Housing (Section 8).

Three-year-old Calvin Jefferson, Jr. was severely injured when his family’s home caught fire on January 3, 1990. The aunt who was babysitting Jefferson was able to escape the burning house, but Jefferson remained inside. He was later rescued by emergency personnel. Jefferson’s mother had leased the house approximately six months earlier. Prior to the rental, the house was inspected by AHA, acting in its capacity as the area Section 8 administrator. AHA found the house was suitable for participation in the program, and Jefferson’s family received Section 8 assistance to rent the dwelling.

Jefferson, acting through his guardian ad litem, filed the underlying action against AHA for approving the dwelling for Section 8 use even though it lacked a smoke detector. AHA filed a motion for summaty judgment asserting it had no duty to ensure that the dwelling contained a smoke detector and, alternatively, that the failure to comply with such duty was not the proximate cause of Jefferson’s injuries. The trial court denied AHA’s motion, and we granted AHA’s application for interlocutory appeal.

1. In its first two enumerations of error, AHA contends that it had no duty to inspect the dwelling for the presence of a smoke detector. While at the time of this incident, federal regulations did not directly impose a duty upon AHA to ensure the presence of a smoke detector in Jefferson’s dwelling, they did require compliance with state and local regulations which did impose such a duty. OCGA § 8-3-1 et seq. is the legislation under which local housing authorities such as AHA are created and governed. OCGA § 8-3-7 provides: “All housing projects of an authority shall be subject to the planning, zoning, sanitary, and building laws, ordinances, and regulations applicable to the locality in which the housing project is situated.” (Emphasis supplied.) Under OCGA § 8-3-3 (10) a “housing project” is broadly defined as “[a]ny work or undertaking . . . [t]o provide decent, safe, and sanitary urban or rural dwellings, apartments, or other living accommodations for persons of low income.” AHA’s role in administrating the Section 8 program fits within this broad definition of a housing project, and consequently, AHA was obligated to ensure that all dwellings approved by AHA for Section 8 participation complied with local Atlanta ordinances.

One such ordinance, adopted in 1984, requires owners to provide a working smoke detector in all residential dwellings prior to their sale or lease. See Atlanta Ordinance § 11-3032.1 (b). Moreover, the ordinance defines an owner as: “Any person, corporation or other legal entity wbío has legal title or control, in whole or in part, of any real property” (emphasis supplied) within the city. Atlanta Ordinance § 11-3032.1 (a) (2). Clearly, in its capacity as the area administrator, AHA exercised significant control over the Jeffersons’ dwelling. It even had the power to review and approve the landlord’s proposed lease prior to its execution. 24 CFR § 882.209 (k). Consequently, for purposes of this ordinance, AHA would be considered an “owner” of the property, and thus it not only had the duty to inspect the dwelling for the presence of a smoke detector, it also had a duty, if necessary, to provide the dwelling with a smoke detector. Consequently, AHA breached its statutory duty by failing to ensure the presence of an operable smoke detector before allowing the house to participate in the Section 8 program. Therefore, the trial court did not err in finding that AHA owed such a duty to Jefferson.

2. In its third enumeration, AHA contends that even if it had the duty to ensure the presence of a smoke detector, the breach of that duty was not the proximate cause of Jefferson’s injuries based upon our decision in Wilkerson v. Alexander, 208 Ga. App. 83, 85 (429 SE2d 685) (1993).

In Wilkerson, a six-year-old girl was killed in a fire while sleeping at a neighbor’s house. She had been sleeping on a couch in the den at the time the fire started, but her body was discovered behind the bathroom door. Several other children who had been in the house at the time of the fire were able to escape unharmed. In determining that the dead child’s survivors had no cause of action against the owners of the home where the fire occurred, this Court first determined that, unlike the instant case, the owners had no duty to provide a functional smoke detector for the benefit of the fire victim. Id. at 86. In dicta, the Court further noted that the plaintiffs had also failed to establish that the lack of a smoke detector was the proximate cause of the victim’s death.

Wilkers'on is inapposite. In the subject case, a police officer who initially arrived on the scene after receiving an emergency call averred that she could not reach Jefferson due to the fire’s intense heat. Jefferson was not rescued until later when the fire department arrived and a fireman went into the burning house with the aid of special equipment including “a breathing apparatus and full protective turnout gear.”

The purpose of a smoke detector is to provide an early warning of fire and to reduce the damages and injury resulting therefrom. Whether or not the lack of a smoke detector delayed Jefferson’s rescue and contributed to his injuries is a jury question. Had a smoke detector been present to provide an early alarm, it is possible that Jefferson would have been rescued sooner, thereby avoiding or lessening the extent of his injuries. See Seibers v. Dixie Speedway, 220 Ga. App. 811 (470 SE2d 452) (1996) (summary judgment denied based on possibility that defendant’s actions or omissions worsened injury).

Because questions of fact exist as to whether the presence of a smoke detector may have prevented or lessened Jefferson’s injuries, the trial court correctly denied summary judgment on the issue of proximate cause.

3. In its final enumeration of error, AHA asserts that the trial court erred in denying AHA’s motion for summary judgment because Jefferson’s mother had equal or superior knowledge that the residence lacked a smoke detector when she rented the house. This argument is without merit..

AHA relies on the general law that the owner or occupier of land has no duty to warn against obvious or patent dangers which may be readily observed. See Commerce Properties v. Linthicum, 209 Ga. App. 853, 854 (434 SE2d 769) (1993). Similarly, AHA also contends that a landlord is not liable for injuries to his tenant resulting from a patent defect existing at the time of the rental agreement as to which both the landlord and tenant had equal knowledge. See Hyde v. Bryant, 114 Ga. App. 535, 536 (151 SE2d 925) (1966). These general rules have no application in the face of a specific duty imposed on AHA by statute. “[Ljandlords may not hide behind this general principle to avoid duties mandated by statutes or housing codes.” Roth v. Wu, 199 Ga. App. 665, 666 (405 SE2d 741) (1991); see also Bastien v. Metro. Park Lake Assoc., L.P., 209 Ga. App. 881 (434 SE2d 736) (1993). Furthermore, pursuant to OCGA § 51-2-1 (b), the alleged negligence of Jefferson’s mother cannot be imputed to Jefferson, her minor child, and would not bar his recovery in any event.

In light of the above, the trial court did not err in denying AHA’s motion for summary judgment.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

1. I concur in the judgment but not in the designation of the Atlanta Housing Authority as an “owner” of the residence which it approved for rental by a private owner to Jefferson’s mother, as that term is used in Atlanta Ordinance § 11-3032.1. Nor is it necessary as a matter of statutory construction principles to construe the term so broadly. Doing so would mean that AHA was obligated to “provide a smoke detector to be placed in accordance with the manufacturer’s instructions for each dwelling unit prior to any sale, lease or rental of such unit.” Ordinance § 11-3032.1 (b).

As the majority states, the ordinance defines “owner” for the purposes of the section on smoke detectors as: “Any person, corporation or other legal entity who has legal title or control, in whole or in part, of any real property in the City of Atlanta.” Ordinance § 11-3032.1 (a) (2). In acting as the approving agency for the federal Section 8 program, AHA does not have control of the third party’s rental property. All it can do is withhold approval of it and thereby preclude Section 8 funding, until.the party with control brings it up to Code, i.e., provides a smoke detector.

Plaintiff does not contend that AHA was required to provide a detector. In fact, he makes that clear in his appellate brief: “Plaintiff is not claiming that AHA had a duty to ‘provide’ (and therefore purchase and/or install) the smoke detector for the subject house. Appellee claims that because a smoke detector was required by this law to be in every house, AHA with this knowledge had a duty to require the landlord to install a functioning smoke detector before approving the Jeffersons’ move into the home under Section 8.” (Emphasis omitted.)

The alleged breach of statutory duty was in approving the home for rental under a federal program which provided the rent when the home did not comply with the law. The whole purpose of the minimum quality standards requirement before federal funds are available is to assure that housing for poor people is “decent, safe and sanitary.” 42 USC § 1437; 42 USC § 1437 f (a); 24 CFR § 882.102. Landlords who wish to take advantage of the secure and market-based Section 8 source of rent income must meet the standards imposed by law, in this case the city ordinance, and it is the duty of the AHA pursuant to its agreement with the United States Department of Housing and Urban Development and OCGA § 8-3-7 to assure compliance before federal funds are available. AHA has the authority to hold out the carrot, but it may not give the carrot before fulfilling its own responsibility pursuant to federal law to assure that the premises owner to whom the rent will be paid has furnished a decent, safe and sanitary dwelling. In this instance, the AHA has not shown that it approved a house that met a local ordinance requirement for a smoke detector, which is a safety device; yet it authorized the payment of Section 8 funds.

2. As to proximate cause and AHA’s claim of remoteness as a matter of law in this summary judgment posture of the case, “ ‘(t)he inquiry is not whether the defendant’s conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery.’” Collie v. Hutson, 175 Ga. App. 672, 673 (334 SE2d 13) (1985), quoting Hercules, Inc. v. Lewis, 168 Ga. App. 688, 689 (309 SE2d 865) (1983).

The governing statute is OCGA § 51-12-9: “Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.” Negligence is predicated on what should have been anticipated; a tortfeasor is responsible for a consequence which is “probable, according to ordinary and usual experience . . . which human foresight can foresee.” Jacobs v. Taylor, 190 Ga. App. 520, 526 (379 SE2d 563) (1989); Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982); Moses v. Chapman, 113 Ga. App. 845 (1) (149 SE2d 850) (1966). I agree that in this case the element of proximate cause is a jury question.

Decided October 3, 1996.

Thomas, Kennedy, Sampson & Patterson, Thomas G. Sampson, Jeffrey E. Tompkins, Melynee C. Leftridge, Myra H. Dixon, for appellant.

Clifford J. Steele, Anthony A. D’Aurio, for appellee.

       At the time the house was inspected, HUD standards expressly required a smoke detector to be present in only one type of dwelling — a mobile home. 24 CFR § 882.109 (o) (1) (b). The requirement for a smoke detector did not extend to other types of dwellings participating in the Section 8 program. In fact, the pre-printed inspection form prepared by the federal authorities and used by AHA in this particular inspection makes note of whether a unit contains a smoke detector. It reads: “If unit is a mobile home, does it have at least one smoke detector in working condition? If not a mobile home, check ‘Not Applicable! ” (Emphasis supplied.)
      Moreover, subsequent to the fire in this case, HUD amended its regulations to include a completely new section requiring smoke detectors to be present in all Section 8 housing beginning in October 1992. 24 CFR § 882.109 (r).

       AHA argues that even if a duty was required to inspect for smoke detectors before approving the dwelling, “[it] was under no obligation to ensure that there was a functioning smoke detector in [their] house on the day of the fire!’ See Gilley v. Barnett, 624 S2d 572 (Ala. 1993) (working smoke detector was present in apartment when Section 8 assistance was approved and the approving agency had no ongoing duty to ensure that it remained operable). AHA’s argument that it has no ongoing duty to maintain a smoke detector on the premises is without merit where it never ensured its presence initially and the subject fire occurred within six months of occupancy. The fault herein involved is the failure to ensure the existence of a smoke detector, not its maintenance.


author: Beasley, Chief Judge.

text:
    A96A1568.
    THE STATE v. WINTKER.
    (476 SE2d 835)
   Beasley, Chief Judge.

The State appeals the trial court’s order suppressing a statement made by Wintker to police for failure to give “Miranda warnings.”

In reviewing such a ruling, factual and credibility determinations will not be disturbed on appeal unless clearly erroneous. Pless v. State, 218 Ga. App. 603 (1) (462 SE2d 472) (1995); State v. Louis, 185 Ga. App. 529, 530 (364 SE2d 896) (1988). Accordingly, the record shows that Davis was stopped for driving 81 mph in a 55 mph zone. The officer discovered Davis’s license was suspended and asked him to exit the car. He was arrested and placed in a patrol car after a pat-down disclosed a drug pipe with marijuana residue.

The officer asked the three passengers for the identity of the car owner, and 18-year-old Abigail Wintker responded that it was her parents’ car. When asked for permission to search the car, Wintker refused, and the officer called for a drug dog. Wintker was placed in the back of a patrol car with Davis, the arrested driver, but was told she was not under arrest. The doors of the patrol car were locked and could not he opened from the inside. The other two passengers were allowed to stand near the car while the dog sniffed drugs. The dog “alerted” to all four vehicle doors, so several officers thoroughly searched the interior and found both marijuana and cocaine in a child’s yellow suitcase. Other contents revealed that the suitcase belonged to a woman. The officer first asked the woman passenger standing outside if it was hers, and she denied ownership. The officer then asked Wintker, who was still in the back seat of the patrol car and was the only other woman present, if she owned the suitcase. She admitted she did and was arrested for violation of the Georgia Controlled Substances Act, OCGA § 16-13-30. She then asked the officer why she was being arrested, and he informed her that the suitcase contained drugs. She denied knowledge of any such drugs.

After indictment, Wintker moved to suppress all evidence seized from the vehicle on the basis that it was obtained through an illegal search and seizure. She also moved to suppress her statement that she owned the suitcase on the basis that she was in custody and not advised of her Miranda rights before making the statement. The court denied the motion as to the search and seizure, finding the officers had probable cause and reasonable suspicion to search the vehicle, but suppressed Wintker’s statement, finding that Wintker was in custody when police questioned her without first advising her of her constitutional rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

If the police take a suspect into custody and ask questions without informing the person of his Miranda rights, the responses cannot be introduced into evidence to establish his guilt. Berkemer v. McCarty, 468 U. S. 420, 429 (II) (104 SC 3138, 82 LE2d 317) (1984). The United States Supreme Court defined “custodial interrogation” as “questioning Initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, supra at 444; see Shy v. State, 234 Ga. 816, 819 (I) (218 SE2d 599) (1975). Only statements made by a suspect while in custody and under police interrogation give rise to the issue of Miranda warnings. Tibbs v. State, 207 Ga. App. 273 (1) (427 SE2d 603) (1993).

In determining whether a suspect was in custody for Miranda purposes, “a court must examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply whether there (was) a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ [Cits.]” Stansbury v. California, 511 U. S._(II) (114 SC 1526, 128 LE2d 293) (1994). The “ultimate inquiry” is a mixed question of law and fact.

Thompson v. Keohane, 516 U. S. _(II) (B) (116 SC 457, 133 LE2d 383) (1995), recently reaffirmed that in making this determination, the court must first ascertain the circumstances surrounding the interrogation. This is a purely factual determination and receives deferential review on appeal. Second, given those circumstances, the court then must determine if a reasonable person would have believed he or she was not at liberty to terminate the interrogation and leave. This inquiry “calls for application of the controlling legal standard to the historical facts.” Id.

The specific issue in the Thompson case was whether a state court’s ruling that a defendant was not “in custody” for Miranda purposes qualifies as a “fact” determination entitled to a presumption of correctness under 28 USC § 2254 (d), which provides that, in a federal habeas proceeding instituted by a person in custody pursuant, to a state court judgment, the state court’s determination of “a factual issue” ordinarily “shall be presumed to be correct.” The Court’s reasoning applies equally to our review of the trial court’s findings as to whether a defendant was subjected to custodial interrogation and thus entitled to the protections afforded by Miranda. The trial court’s findings on the disputed facts are not clearly erroneous. We review the trial court’s “application of the controlling legal standard” to these facts de novo.

A reasonable person test, rather than the four-factor test applied in earlier decisions, applies to determine whether an individual not formally arrested is nevertheless in custody for Miranda purposes. This occurs if, but only if, a reasonable person in the suspect’s posi: tion would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest. A “reasonable person” has been defined as “one ‘neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.’ ” United States v. Corral-Franco,, 848 F2d 536, 540 (5th Cir. 1988), quoting United States v. Bengivenga, 845 F2d 593 (5th Cir. 1988), cert. denied, Bengivenga v. United States, 488 U. S. 924 (109 SC 306, 102 LE2d 325) (1988).

The State contends Wintker was not in custody and the fact she had been placed in the back seat of a locked patrol car when the police officer asked if she owned the suitcase should not be determinative. Rather, the State argues, we should find she was merely temporarily detained while the investigation was completed.

Police officers making an ordinary traffic stop or arriving on the scene of suspected criminal activity may conduct a “general on-the-scene investigation,” including making inquiries solely to determine whether there currently is any danger to them or other persons. Tibbs, supra at 273 (1); Aldridge v. State, 247 Ga. 142, 144 (2) (274 SE2d 525) (1981). They may even temporarily detain anyone who tries to leave before the preliminary investigation is completed. Such inquiries and detentions do not trigger the requirements of Miranda, unless the questioning is “aimed at obtaining information to establish á suspect’s guilt.” Id.; Smith v. State, 264 Ga. 857, 859 (3) (452 SE2d 494) (1995); State v. Overby, 249 Ga. 341, 342 (290 SE2d 464) (1982).

The State reminds us that “this court has found that placing a person in the rear seat of a patrol car which has no interior door handles and from which there is no exit without the officer’s opening the door is not an arrest, but a justifiable momentary detention which is reasonable” in circumstances where police are securing a scene for safety reasons and conducting an investigatory stop. Pless, supra at 605 (2) (referring to Goodman v. State, 210 Ga. App. 369, 370 (436 SE2d 85) (1993)). See also State v. Corbett, 205 Ga. App. 554, 556 (423 SE2d 38) (1992); Arena v. State, 194 Ga. App. 883, 885 (1) (392 SE2d 264) (1990); Alexander v. State, 166 Ga. App. 233, 235 (2) (303 SE2d 773) (1983).

Although decisions relied on by the State are factually similar to this case, they turn on a different yet related analysis, that is, whether, in detaining a suspect in a locked patrol car, a legal “Terry-type” seizure (Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)) had occurred under the Fourth Amendment. See, e.g., Goodman, supra at 370; Corbett, supra at 555-556. A policeman who lacks probable cause but whose “observations lead him reasonably to suspect” that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to “investigate the circumstances that provoke suspicion,” without violating the Fourth Amendment. (Citation and punctuation omitted.) Berkemer, supra at 439 (III).

The cited cases do not address the issue of Miranda’s procedural safeguards aimed at protecting a suspect’s Fifth Amendment rights against self-incrimination. Resolving whether a suspect was in custody for Miranda purposes and whether a suspect was legally seized during a Terry stop requires somewhat different analyses. In Terry-type investigative detentions, the suspect is detained, but Miranda is not always triggered. Shy, supra at 820 (I). If a motorist detained for a routine traffic stop is thereafter subjected to treatment by police that renders him “in custody,” “he will be entitled to the full panoply of protections prescribed by Miranda” Berkemer, supra at 440 (III).

The State’s emphasis on the lack of arrest is also misplaced, since “in custody” for Miranda purposes is broader than “under arrest.” See generally Wilson v. State, 208 Ga. App. 812, 814 (432 SE2d 211) (1993) (Beasley, R J., dissenting). Rather, the test as applied to these facts is whether, under the totality of the circumstances, a reasonable person in Wintker’s position would feel she was not at liberty to terminate the interrogation and leave. See Thompson, supra, 116 SC at 465-467 (II) (B); Berkemer, supra at 442 (III).

We agree with the trial court’s assessment that Wintker was in custody for Miranda purposes at the time she admitted being the owner of the yellow suitcase, and the admission was thus properly suppressed. This episode went far beyond the ordinary traffic stop where Miranda warnings need not be given. The question posed by the officer to Wintker — “Is this your suitcase?” — was clearly “aimed at obtaining information to establish [her] guilt.” Aldridge, supra at 144 (2). He knew when he asked the question that the suitcase contained contraband, and he had already eliminated one likely owner. A reasonable person in Wintker’s position would have believed she was in custody, as evidenced by the totality of circumstances: (1) The 18-year-old suspect had observed the police arrest, handcuff, and place Davis, the driver of her parents’ car, in the back seat of the patrol car; (2) she was then separated from the two other passengers, who were permitted to remain standing outside; (3) she was involuntarily confined with Davis in the locked patrol car; (4) she observed a police dog and its handler come to the scene and participate; and (5) she watched as her parents’ car was subjected to a thorough search by three police officers after she refused consent to the search.

Wintker’s experience falls squarely within a class of cases Miranda was particularly concerned with, that is, situations where a suspect is subjected to police interrogation while “ ‘cut off from the outside world,’ because such incommunicado interrogation in a police-dominated atmosphere can result in self-incriminating statements without full warnings of constitutional rights.” Reinhardt v. State, 263 Ga. 113, 114 (3) (a) (428 SE2d 333) (1993), quoting Miranda, supra at 445. Although not occurring in a police station house, Wintker’s interrogation was equally isolated and police-dominated; there was a significant “compulsive aspect” to the questioning. Stansbury, supra, 114 SC at 1529.

The State’s reliance on Futch v. State, 145 Ga. App. 485 (243 SE2d 621) (1978), is equally without merit. Futch focuses on the custody issue but differs materially in its facts. Futch and her companion were questioned by police in a motel room as to the ownership of a trunk. This Court affirmed the trial court’s finding that the police were simply conducting a general on-the-scene investigation when they asked about the trunk, and Miranda warnings were not required. Id. at 488 (3). Futch and her companion were inside their motel room, not a police vehicle, when they were questioned. Compared to Wintker’s situation, such an atmosphere does not put a “ ‘ “restraint on freedom of movement” of the degree associated with a formal arrest’ [cit.]” such that Miranda is triggered. Wilson, supra at 218; Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16) (1995).

The trial court cited Woods v. State, 242 Ga. 277 (248 SE2d 612) (1978), presumably as being factually distinguishable. Woods sought to suppress a statement she made to a detective while she was sitting in the front seat of his car with the passenger door open and her husband present. Id. at 278-279 (2). The Georgia Supreme Court rejected Woods’ attempt to suppress these statements on the ground she was the focus of the investigation so as to require that she be read her Miranda rights. It held she was not in a sufficiently coercive environment to trigger Miranda. Id. at 281 (2).

Decided October 3, 1996.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Beth T. Golub, Assistant District Attorneys, for appellant.

Jack J. Menendez, Monzer J. Mansour, for appellee.

Futch and Woods contrast markedly with the significant deprivation of freedom of action experienced by Wintker. The motion to suppress Wintker’s statement was properly granted.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.

       The earlier test was approved by the Georgia Supreme Court: “In making the distinction between custodial and noncustodial interrogation the U. S. Court of Appeals, 5th Circuit, has outlined several criteria: ‘these include probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation.’ Brown v. Beto, 468 F2d 1284, 1286 (5th Cir. 1972).” Shy, supra at 821 (I). The Fifth Circuit Court of Appeals specifically disapproved the four-factor test as “ ‘no longer compatible with Supreme Court precedent,’ ” and approved a reasonable person test in United States v. Corral-Franco, 848 F2d 536, 540 (5th Cir. 1988). The “reasonable person” test is now generally utilized by Georgia courts. See McClendon v. State, 201 Ga. App. 262, 263 (1) (a) (410 SE2d 760) (1991) and cases cited therein. But see State v. Hendrix, 221 Ga. App. 331, 332 (1) (471 SE2d 277) (1996).


author: Ruffin, Judge.

text:
    A96A1795.
    MARCRE SALES CORPORATION v. JETTER.
    (476 SE2d 840)
   Ruffin, Judge.

Marcre Sales Corporation d/b/a Filet of Chicken (“Filet of Chicken”) sued David Jetter for failure to comply with a non-competition agreement, and Jetter counterclaimed, alleging improper termination. The trial court granted Jetter partial summary judgment on Filet of Chicken’s complaint. Filet of Chicken appeals this ruling, and we affirm.

Summary judgment is- appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to any essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

Viewed in that light, the record shows the following: Jetter began working as a salesman for Filet of Chicken in 1990. In the spring of 1993, Jetter and Filet of Chicken began negotiating an employment contract. On July 7, 1993, they entered into an employment contract which included a non-competition clause. Jetter was terminated by letter dated November 28, 1994.

After receiving information that Jetter was allegedly working for a competitor and soliciting Filet of Chicken customers, Filet of Chicken filed a complaint, alleging breach of contract against Jetter (Count 1) and tortious interference with contractual relationship against J & G Poultry, Inc. (Count 2), Jetter’s new employer. Jetter counterclaimed for breach of contract and fraud. Thereafter, Filet of Chicken amended its complaint to include a third count: violation of the Georgia Trade Secrets Act of 1990.

Jetter filed a motion for partial summary judgment as to Filet of Chicken’s breach of contract claim, asserting Filet of Chicken was precluded from enforcing the employment contract because it had breached the agreement in November 1994 when it terminated Jetter contrary to the provisions of the contract. The trial court granted Jetter’s motion as to this count, noting that Jetter’s counterclaim and Filet of Chicken’s trade secrets claim remained pending.

1. Filet of Chicken asserts the trial court erred in determining, as a matter of law, that the employment contract between Filet of Chicken and Jetter prevented Jetter from being discharged for any reason. We disagree. It is clear from the trial court’s order that it merely determined that Filet of Chicken violated the terms of the employment contract, and we agree with this determination.

(Pursuant to the employment contract, Filet of Chicken employed Jetter for 12 months, beginning July 7, 1993. Under section three of the employment contract, titled “Renewable Contract,” the contract provided as follows: “This agreement shall automatically renew from year to year during the term of JETTER’S employment unless either party gives to the other written notice of his or its intention to terminate JETTER’S employment at the end of the then current term of employment. It is the intention of the parties that this provision shall be applied so that at the end of the first year unless either party has given written notice to the other at least thirty days prior to the end of the one-year term, then JETTER shall continue to be employed by [Filet of Chicken] for a second period of twelve months. Should JETTER desire to cease his employment for any reason other than a violation of the terms of this agreement, he may do so only by giving written notice to [Filet of Chicken] at least thirty days prior to the end of the twelve-month term of this agreement, or any extension hereof.”

Pursuant to this contract provision, the contract renewed for an additional 12 month term on July 7, 1994. However, Filet of Chicken terminated Jetter by letter dated November 28, 1994. This termination occurred seven months prior to the expiration date of the contract and violated section three of the employment contract. The trial court correctly found that “[a]lthough [Filet of Chicken] had the right to give [Jetter] written notice of its intention to terminate him at the end of his second year of employment, the Employment Agreement did not provide [Filet of Chicken] with a mechanism to terminate [Jetter] in November of 1994.” Since the employment contract did not contain severability language, Filet of Chicken’s own breach of the contract precludes it from seeking enforcement of the covenant not to compete. ESAB Distributors Southeast v. Flamex Indus., 243 Ga. 355 (3) (254 SE2d 328) (1979); Wake Broadcasters v. Crawford, 215 Ga. 862 (1) (114 SE2d 26) (1960).

Furthermore, contrary to Filet of Chicken’s argument, the trial court did address whether the employment contract could be construed to contain a provision permitting termination for cause. In this regard, the trial court properly determined that the employment contract was unambiguous and clearly set out the rules governing renewal and termination. Filet of Chicken does not cite, and we cannot locate, any authority supporting Filet of Chicken’s proposition that a termination for cause provision was intended by the parties. “ ‘It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties. [Filet of Chicken] must stand upon the contract as made by the parties.’ [Cit.]” Wake, supra at 863. Furthermore, we find Filet of Chicken’s argument ironic in light of the fact that earlier drafts of the employment contract included a termination clause that might have allowed such actions by Filet of Chicken, but those were specifically excluded from the final agreement.

“We hold the contract in the instant case to be entire, and the clause requiring [written notice of termination 30 days prior to the expiration of the 12 month term] to be a vital clause of the contract, a breach of which on the part of [Filet of Chicken] would relieve [Jetter] from the provisions of the restrictive clauses in the contract.” Felton Beauty Supply Co. v. Levy, 198 Ga. 383, 389 (31 SE2d 651) (1944). Accordingly, the trial court properly granted Jetter’s motion for partial summary judgment.

2. Contrary to Filet of Chicken’s assertions, the trial court’s order is not inadequate to permit meaningful appellate review and is not inconsistent. The order correctly identifies the issues and correctly addresses those issues. In addition, the trial court’s grant of partial summary judgment to Jetter on Filet of Chicken’s contract claim is not inconsistent with its determination that Jetter’s breach of contract counterclaim remained open. According to the trial court, Filet of Chicken’s defenses of accord and satisfaction, while they did not apply to Count 1 of the complaint, might be applicable as a defense to Jetter’s counterclaim. Surely, Filet of Chicken is not arguing that it should not be allowed to present mitigating evidence as to damages incurred by Jetter due to Filet of Chicken’s breach of the employment contract. This enumeration lacks merit.

Decided October 4, 1996.

Glaze, Glaze & Fincher, Kirby A. Glaze, Bruce R. Vail, for appellant.

William A. Maddox, for appellee.

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.

       Filet of Chicken dismissed J & G Poultry, Inc. from the lawsuit, so Count 2 of the original complaint and Count 3, as it related to J & G Poultry, Inc., were extinguished. In addition, J & G Poultry, Inc. dismissed its counterclaim against Filet of Chicken.


author: Judge Harold R. Banke.

text:
    A96A1897.
    TRIPP v. THE STATE.
    (476 SE2d 844)
   Judge Harold R. Banke.

David Joe Tripp pled guilty to three counts of selling cocaine in violation of the Georgia Controlled Substances Act and received an eight year probated first offender sentence. He appeals the trial court’s denial of his motion to withdraw his plea, filed almost two years after the plea’s entry.

During the plea hearing, the State announced the charges against Tripp and its recommended sentence. The trial court then explained the maximum sentence, outlined the rights waived by pleading guilty, and warned Tripp of the consequences should his probation be revoked. Tripp’s counsel then stated, ‘Your Honor, I have talked with Mr. Tripp, on numerous occasions regarding this incident. I have talked with Mr. Cline and the Sheriff about it. He recognizes these very serious charges. He does have a good job. We wanted to do all that we could to protect that job and give him another chance. And I’d ask the court to consider accepting this recommendation.” At that, the court accepted the recommendation and entered the plea and sentence on May 4, 1993. '

In February 1995, after being charged with five additional counts of sale of cocaine, Tripp moved to withdraw the plea, arguing that the trial court fáiled to establish a factual basis for the plea in the record in violation of Uniform Superior Court Rule (“USCR”) 33.9. Tripp’s first offender probation was subsequently revoked and he received a 20 year concurrent sentence on the three original sales charges. Held:

Notwithstanding the State’s argument to the contrary and the fact that more than one term of court had expired before Tripp moved to withdraw, we conclude that the trial court had jurisdiction to consider Tripp’s motion. Although a superior court’s jurisdiction to consider a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction is rendered, judgments of conviction are not entered in cases proceeding under the First Offender Act unless the defendant violates the terms of his probation. OCGA §§ 16-13-2 (a); 42-8-60 (b); Stuckey v. State, 204 Ga. App. 793, 794 (1) (420 SE2d 655) (1992). Inasmuch as the sentencing court retains jurisdiction for resentencing, it follows that jurisdiction to consider a motion to withdraw is also retained. See State v. Boyd, 189 Ga. App. 617, 618 (377 SE2d 11) (1988).

Decided October 4, 1996.

Keaton & Lombardo, Barry V. Lombardo, W. Dan Roberts, for appellant.

Fredric D. Bright, District Attorney, Shelley S. Tice, Assistant District Attorney, for appellee.

Turning to the merits, we find that the trial court violated USCR 33.9 by failing to ensure that the record included a factual basis for the plea. While Rule 33.9 does not mandate a specific inquiry about the factual basis of the plea at the plea hearing, the triál court must make clear on the plea hearing record that it is relying on the information contained in parts of the record other than the hearing transcript which establish the plea’s factual basis. State v. Evans, 265 Ga. 332, 335 (2) (454 SE2d 468) (1995). Although the instant record includes an affidavit in support of an application for a search warrant which details the factual basis for the plea, at the plea hearing the court made no inquiry about the plea’s factual basis and did not refer to the affidavit. The affidavit was not introduced at the plea hearing and there is no record evidence that the court was aw;are of the affidavit. Nor did the State’s opening statement refer to the affidavit or the plea’s factual basis. On this record, we cannot say the trial court subjectively satisfied itself as to the factual basis for the plea. Id.

This finding does not mandate reversal, however, because the denial of Tripp’s motion did not engender manifest injustice as contemplated by USCR 33.12. Id. at 336. This is so because the affidavit supporting the search warrant application provides a more than adequate factual basis for the crimes. Id. Moreover, at the plea hearing, defense counsel specifically stated that he had discussed the charges with Tripp on numerous occasions.

Judgment affirmed.

McMurray, P. j, concurs. Ruffin, J., concurs in the judgment only.

       Rule 33.9 states: “[notwithstanding the acceptance of a plea of guilty, the judge should not enter a judgment upon such plea without making such inquiry on the record as may satisfy him that there is a factual basis for the plea.”


text:
    A96A2177.
    MOSIER v. THE STATE.
    (476 SE2d 842)
   Eldridge, Judge.

The state joined for trial two indictments charging Gary Mosier with separate offenses of burglary; he was convicted of both and appeals only his conviction under Indictment No. 94CR17,077 for the burglary of the residence of Carol and David Tate.

In his sole enumeration of error, appellant contends that the circumstantial evidence presented at trial which corroborated the testimony of his accomplice was insufficient to support the jury’s guilty verdict. We do not agree.

A defendant may not be convicted on the uncorroborated testimony of an accomplice; however, only slight evidence of a defendant’s identity and participation from an extraneous source is required’to corroborate the accomplice’s testimony and support the verdict. OCGA § 24-4-8; Sanchez v. State, 203 Ga. App. 61, 62 (416 SE2d 139) (1992). “Sufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice. [Cits.]” (Punctuation omitted.) Howard v. State, 181 Ga. App. 187, 188 (351 SE2d 550) (1986).

Appellant’s brother, James Mosier, testified at trial that Lee Roy Rose, the appellant, and he had been drinking heavily when they decided to burglarize a home. James Mosier testified that all three of them planned the burglary, and to that end, they borrowed from a friend a maroon/rust-colored Ford truck in which to accomplish the burglary. Appellant waited in the truck out in front of the Tate residence, while Rose and James Mosier broke in. The Tates’ youngest son, David, was home at the time and interrupted the two men. Both James Mosier and Rose ran out of the house; in Rose’s haste to get out, he fell and broke a television set that he had been carrying. Mosier and Rose jumped in the truck where appellant was waiting; the truck spun out in the yard, and the men drove off. Later, the goods that James Mosier and Rose had been able to take from the Tate home were sold, and the proceeds were split between the truck owner, James Mosier, Rose and appellant.

In the case sub judice, appellant’s own testimony provided corroboration for his brother’s testimony. See Tucker v. State, 205 Ga. App. 683 (423 SE2d 422) (1992). Appellant admitted that he had been drinking with his brother and Rose the previous night up until the time of the Tate burglary; appellant testified that he was in the truck at the time of the burglary. Although appellant testified that he had “passed out” in the truck and was unaware of the others’ activities at the Tate residence, David Tate saw appellant sitting up in the truck as the other two jumped in, and appellant later gave a statement in which he agreed with a detective that it had been funny when Rose tripped and fell as he ran from the Tate house. “ ‘While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in thé criminal intent may be inferred.’ [Cits.]” Grace v. State, 210 Ga. App. 718, 719 (437 SE2d 485) (1993).

Decided October 4, 1996.

William D. Hentz, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, for appellee.

Moreover, “[t]he sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence.” (Punctuation omitted.) Sanchez, supra at 63. Reviewing the evidence in the light most favorable to the jury’s verdict, this Court finds that the evidence was sufficient to authorize the jury’s determination that appellant was guilty beyond a reasonable doubt as a party to the crime of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


author: Birdsong, Presiding Judge.

text:
    A96A1414, A96A1522.
    DELLI-GATTI v. MANSFIELD; and vice versa.
    (477 SE2d 134)
   Birdsong, Presiding Judge.

In Case No. A96A1414, appellant/defendant Kevin L. Delli-Gatti, M.D. appeals from the order of the superior court declaring unenforceable the non-compete clause in a medical services agreement, entered between appellant and appellee/plaintiff Kathy Mansfield, M.D. In Case No. A96A1522, cross-appellant Dr. Mansfield appeals from the superior court’s order, asserting the trial court erred in failing to find the non-compete clause unenforceable because of abandonment of agreement and breach of the agreement by crossappellee Dr. Delli-Gatti.

This is a suit for declaratory judgment brought by appellee Dr. Mansfield, praying for a declaration of rights as to the enforceability of a non-compete clause in a medical services agreement. The non-compete clause provided the following upon termination of the medical services agreement or the employee relationship created thereby: “Dr. Mansfield . . . covenants that she shall not provide pediatric services or other medical care as a physician within Upson County or provide said services at the Upson Regional Medical Center for the twelve (12) months immediately following the said termination.” Subsequently, Dr. Mansfield exercised her contractual right to give notice and terminate the agreement.

The trial court made the following pertinent findings of fact: “[The] defendant had intended to prevent plaintiff from competing with him in the practice of pediatrics, but. . . the language inserted in the [non-compete clause] not only prevented plaintiff from practicing pediatrics, but also precluded plaintiff from practicing medicine of any type, in any branch, any specialty or no specialty at all. The evidence thus conclusively established that the interest of the employer to be protected was solely that of the practice of pediatrics. The covenant . . . was drawn by the attorney for the employer, and imposed the restriction on plaintiff, unilaterally, stemmingt ] . . . from the disparate bargaining positions of the parties, there being no restrictions on the employer, since he could, by the terms of the contract, terminate it, continue to practice pediatrics, and preclude plaintiff from practicing any type of medicine in the described territory. This prohibition ... of the practice of any type of medicine, was not reasonably necessary for the protection of the defendant, and was therefore overbroad and unenforceable.” Held:

Case No. A96A1414

1. The executed agreement created a contract of employment with a future option to form a partnership in the event certain conditions were met and the partnership terms were agreeable to both parties; at the time the agreement was terminated no partnership had been formed. Unlike a contract in general restraint of trade, a restrictive covenant in an employment contract is considered to be in partial restraint of trade and will be upheld if the restraint imposed is not unreasonable, is founded upon valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public. Whether the imposed restraint in an employment contract is reasonable is a question of law for court determination, which considers the nature and extent of the trade or business, the situation of the parties, and all the other relevant circumstances. W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529); Dougherty, McKinnon &c. v. Greenwald, Denzik &c., 213 Ga. App. 891, 893 (2) (447 SE2d 94). A “ ‘ “helpful tool” ’ ” in determining the reasonableness of a particular restraint provision is to apply the three-element test of duration, territorial coverage, and scope of activity. Id. In considering the reasonableness of restrictive covenants in an employer/employee agreement, strict appellate scrutiny is required; whether the restraint was reasonable presents an issue of law. McAlpin v. Coweta &c. Assoc., 217 Ga. App. 669, 672 (1), (2) (458 SE2d 499).

2. The record reveals that, while completing her residency in pediatrics, appellee was contacted by representatives of the local Upson County hospital and invited to come to the county to practice medicine; appellee was given three separate career options, only one of which would have resulted in her entering a medical services agreement with and becoming an employee of appellant. Thus, even if her negotiations failed, appellee still had other professional employment options open to her. Further, after appellant’s attorney drafted the agreement, appellee reviewed the document and successfully negotiated the amendment of the document so as to change favorably the vacation time to be allotted and the length of time required to obtain a partnership option, and to add certain health and disability insurance benefits. Moreover, although the non-compete clause appeared in the original draft of the agreement, there exists no evidence of record that appellee ever attempted to negotiate this provision or that she objected to its inclusion in the agreement. In fact, appellee testified that appellant had made all the changes to the agreement which she had requested. Appellee admitted in court that she had read and understood the terms of the agreement, and by executing the agreement had agreed to abide by the terms .of the non-compete clause. Assuming without deciding whether, as found by the trial court, some degree of disparate bargaining position existed between appellant and appellee, we are satisfied that it was not so significant as to impair appellee’s ability to negotiate the terms of the medical services agreement effectively.

3. The duration and territorial coverage limits of the non-compete clause were not unreasonable per se; the elements of duration and territorial coverage were specific and did not deter Dr. Mansfield’s ability to determine with certainty the area within which her post-employment activities were restricted and the exact duration of the restriction. The controlling issue is whether the trial court erred in concluding the non-compete clause, because of the scope of its coverage, “was not reasonably necessary for the protection of the defendant” and was overbroad, unreasonable, and unenforceable under the attendant circumstances.

The pertinent portion of the non-compete clause purports to limit, within Upson County, Dr. Mansfield’s practice of not only pediatrics but of all “other medical care as a physician.” In determining reasonableness, consideration must be given to the employee’s right to earn a living. The covenant not to compete was not so restrictive as to deprive Dr. Mansfield of her right to earn a living practicing medicine, except in Upson County for a period of 12 months.

Regarding the provision in the covenant not to compete restricting appellee’s use of the Upson Regional Medical Center, the parties in this case have neither argued nor provided citations of authority as to the effect of such a provision, and the record is devoid of any detailed information regarding the location, if any, of other hospitals or medical centers in the counties immediately surrounding Upson County. Thus, on appeal any issue as to the unreasonableness of the provision limiting the use of the medical center has been abandoned. Court of Appeals Rule 27 (c) (2).

Viewing the non-compete clause in its totality, we find it reasonable in regard to its relatively limited duration (for 12 months immediately following termination); further, the clause does not limit appellee from practicing any form of medicine and treating any person, whether or not a former patient of appellant, when such medical care is provided other than in Upson County. (Note: Appellant also continues to maintain an active practice in both Pike and Lamar Counties.) Yet in regard to the practice of pediatrics or the providing of medical care as a physician within the boundaries of Upson County, it is very restrictive. Nevertheless, the record reflects that while appellant was engaged in the practice of pediatrics and almost exclusively treated infants, children, and adolescents, he also would occasionally treat people older than age 17. Further, appellant testified that because certain other doctors practicing in the county, although not pediatricians, accepted children as patients they were in business competition with him. Appellee also conceded that on occasion, while practicing with appellant, she would engage in general practice by treating adult patients.

In Puritan/Churchill &c. Co. v. Eubank, 245 Ga. 334, 335 (265 SE2d 16), it was held that “language which restricts employees from activities in a much more limited fashion than is necessary for the protection of the employer will not withstand the reasonableness test so as to uphold the covenant.” Accord Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 184 (2) (236 SE2d 265); Jarrett v. Hamilton, 179 Ga. App. 422, 424 (1) (346 SE2d 875). “Since restrictive covenants must be reasonable in this regard as well as strictly limited in time and territorial effect, a covenant failing in reasonableness for any of these three reasons cannot be upheld.” Puritan/Churchill, supra. It has been broadly held that one of the adverse effects of contracts in unreasonable restraint of trade is that the unreasonable covenants therein “ ‘tend to deprive the public of services of (citizens) in the employments and capacities in which they may be most useful to the community as. well as themselves.’ ” (Citation omitted.) Vortex Protective Svc. v. Dempsey, 218 Ga. App. 763, 765 (2) (463 SE2d 67). However, a covenant prohibiting doctors from “‘practicing medicine’ ” within a 30-mile radius of a clinic’s location for a period of one year following employment has been upheld in the face of a challenge that the scope of the activity prohibited thereby was overbroad. Pittman v. Harbin Clinic Professional Assn., 210 Ga. App. 767, 769 (1) (437 SE2d 619); see also McMurray v. Bateman, 221 Ga. 240 (3) (144 SE2d 345). In upholding a non-compete covenant not to engage in the practice of medicine or surgery within a radius of 25 miles of the City of Toccoa, the Supreme Court observed: “If it be argued that the enforcement of this restrictive covenant would be contrary to public policy because it vfould limit the right of potential patients in the Demorest and Habersham County area to avail themselves of [the doctor’s] services, it can be argued with at least equal conviction that this would afford countless, other people in other areas, both in and outside of the state, the opportunity to have a physician in their areas. There is no reason to conclude that the obstetrical and gynecological needs of persons within a 25-mile radius of Toccoa are any greater than in many other areas of this and other states, nor is there any reason to conclude that the need for the [doctor’s] services ... is sufficient to outweigh the law’s interest in upholding and protecting freedom to contract and to enforce contractual rights and obligations.” Rash v. Toccoa Clinic Med. Assoc., 253 Ga. 322, 326 (3) (320 SE2d 170). The terms of the non-compete clause in this case are not as restrictive as those in McAlpin v. Coweta &c. Assoc., supra, citing Dominy v. Nat. Emergency Svcs., 215 Ga. App. 537 (2) (451 SE2d 472). Additionally, the local public could still visit Dr. Mansfield should she elect to practice in the counties adjoining Upson County. Finally, although not controlling to the disposition of this case, it appears that Dr. Mansfield wishes to have the non-compete clause declared unenforceable so she can practice pediatrics in Upson County, not so she can primarily practice other branches of medicine there. Yet, she contends, inter alia, that the non-compete clause is too broad because it totally restricts her from engaging in other medical practice in Upson County. Suffice it to note that the specific portion of the non-compete clause which she asserts is too expansive does not appear to be the real cause of her profession delimitation.

The precedent of Darugar v. Hodges, 221 Ga. App. 227 (471 SE2d 33); Dougherty, McKinnon &c. v. Greenwald, Denzik &c., supra; and Osta v. Moran, 208 Ga. App. 544 (430 SE2d 837) is not controlling, as the restrictive covenants and attendant circumstances therein are substantively distinguishable. Rather, we find Rash, supra, and McAlpin, supra, to be controlling and that the trial court erred in finding the non-compete clause to be unreasonable and unenforceable.

Case No. A96A1522

4. “ ‘Parties may by mutual consent abandon a contract so as to make it not thereafter binding.’ ” (Citations omitted.) Tidwell Homes v. Shedd Leasing Co., 191 Ga. App. 892, 894 (1) (383 SE2d 334). The trial court found, as fact, that the evidence did not indicate the entire contract had been abandoned by the parties. The evidence does not compel a contrary finding. Cross-appellant utilized the office facilities provided and accepted compensation in excess of that required by the contract without objection; she did not timely attempt to effect a dissolution of the contract nor to assert, prior to her notice of termination, that the contract with cross-appellee had been abandoned. Cross-appellant’s intent to continue performance under the terms of the contract also is evidenced by her tender of written notice of termination of employment with cross-appellee as “authorized by the contract of employment between us.” Additionally, we find that by her course of conduct cross-appellant waived her right to assert an abandonment of the contract of employment at issue. Compare Crotty v. Crotty, 219 Ga. App. 408, 412 (3) (465 SE2d 517) and cases cited therein; Mauldin v. Weinstock, 201 Ga. App. 514, 520 (4) (411 SE2d 370).

The trial court implicitly found there existed no breach of contract by failing to comply with the contractual requirement for equal burden of time devoted to patient care. The trial court has exclusive authority to weigh evidence and judge witness credibility; we find no basis in the record for reversing this determination. Further, cross-appellant’s conduct also resulted in a waiver of right to assert a breach of contract claim. Crotty, supra; Mauldin, supra. Cross-appellant did not timely assert claims either of contract abandonment or of contract rescission. She not only submitted a letter of termination as authorized under the terms of the contract, but also accepted more than all monetary benefits which the contract afforded. “[She] cannot enjoy the benefits afforded by the contract and at the same time claim that the agreement was breached as to [her].” Rash, supra at 327 (5). Cross-appellant’s enumerations of error are without merit.

Judgment affirmed in Case No. A96A1522. Judgment reversed in Case No. A96A1414.

Beasley, C. J, and Blackburn, J., concur.

Decided September 17, 1996

Reconsideration denied October 7, 1996

Don E. Snow, for appellant.

Adams, Barfield, Dunaway & Hankinson, Ronald Barfield, Nancy C. Barfield, for appellee.