author: Eldridge, Judge.

text:
    A01A1051.
    LEGGON v. THE STATE.
    (549 SE2d 137)
   Eldridge, Judge.

An Appling County jury found 18-year-old Kenneth Leggon guilty of voluntary manslaughter, which charge arose from the shooting death of 15-year-old Kato Jemison outside the city gym in Baxley. He appeals, raising ten enumerations of error. We have reviewed Leggon’s ten errors as enumerated, and finding them meritless, we affirm his conviction.

Viewed in a light most favorable to the verdict, the evidence established that Leggon was causing trouble in the city gym by trying to start a fight with the victim’s friend, Jake Coley. Troy Williams, an adult who had been playing basketball in the gym, believed that Leggon was carrying a gun; as a consequence, he gathered up several young men with whom he had been playing — including the victim and Coley — and attempted to leave the building, because, “I didn’t know what was fixing to happen. I just was fixing to get out. I was going to get the people that came with me out of there.”

However, Leggon had already exited the gym and was sitting on a handrail affixed to the outside steps; “he sat up on that rail right there facing the door and everybody had to come by him to get out the door.” As Williams exited with his charges, Leggon approached the victim. He pulled out a handgun and pointed it at the victim’s neck. The victim dropped a pen or pencil he had been carrying and bent to pick it up. As he was rising, Leggon again pointed the handgun at the victim’s neck, and as Williams testified at trial, Leggon stated, “ ‘You think you’re a bad SOB.’ Pow. That was it.” The 15-year-old victim died from a gunshot wound to his neck.

Leggon did not testify at trial but put forward several defense witnesses who testified that the victim had been threatening to “get” Leggon earlier in the evening and purportedly was carrying a .45 caliber pistol. In his statement to the police which was put before the jury, Leggon claimed that the victim had a knife and tried to “cut” him and that he shot the victim in self-defense: “If [the victim] wouldn’t step to me trying to cut me, things will not had started in the first place.” A knife was not found at the crime scene, although a pen and a pencil were recovered near the victim’s body. Held:

1. Leggon challenges the sufficiency of the evidence introduced against him. An appellate court does not weigh the evidence but only determines if the evidence is sufficient under the standard of Jackson v. Virginia. In that regard, the presence of competent evidence to support each element of the offense as charged and for which a defendant was convicted requires the upholding of the jury’s verdict. Conflicts in the evidence are a matter of credibility for the jury to resolve and play no part in this Court’s analysis.

Here, Leggon was indicted for malice murder. The trial court also charged on the lesser included offense of voluntary manslaughter, OCGA § 16-5-2. After hearing the evidence, the jury rejected Leggon’s claims of self-defense, which is their right. They found, instead, that Leggon murdered the victim, but that such murder occurred “solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person,” i.e., the murder was provoked by the victim’s threats against Leggon. Such determination is also their right. As there is ample evidence to support each element of the offense of murder and some evidence to support a finding of provocation, the evidence is sufficient to support the jury’s voluntary manslaughter verdict.

2. In four separate enumerations, Leggon claims error in the trial court’s refusal to give defense request to charge nos. 3, 5, 8, 9, 10, and 17. While the State contends that Leggon’s failure to reserve objections to the charge waives these claims of error, we are not unmindful of the Supreme Court of Georgia’s recent remand with direction in Bailey v. Stated

Because this Court has held that defendants in a criminal case are not required to except to the jury charge to preserve error for appeal and that the right to raise an erroneous charge on appeal may be lost only in certain well-defined instances, Lumpkin v. State; see also Tolver v. State this Court grants this application for certiorari, and remands the case to the Court of Appeals for that Court to consider this case in light of the foregoing holdings.

Accordingly, we will carefully review the State’s claim that waiver dictates the outcome of the instant enumerations of error.

At the conclusion of the trial court’s charge to the jury, the following colloquy occurred:

[Trial Court:] Mr. Johnson [prosecutor], Mr. Morris [defense attorney], exceptions to the charge. From the State, Mr. Johnson?
[Prosecutor:] None from the State, Your Honor.
[Trial Court:] From the defense?
[Defense Attorney:] I’m not going to state any at this time. I don’t think I have an obligation to state any exceptions at this point so I won’t state any.

A defendant in a criminal case is not required to except to a jury charge in order to preserve error for appeal. OCGA § 5-5-24. However, the right to raise alleged errors in a charge may be lost in certain instances:

Through an evolutionary process, the [Supreme Court of Georgia] has interpreted the code section and found certain instances in which the relief granted to the defendant may be waived by the defendant and certain other instances where the defendant may lose his right to relief by inducing the court to make an erroneous charge.

Examples of these instances were articulated by the Supreme Court in Lumpkin v. State and include where a defendant’s tactical trial plan justifies a finding of procedural default; where error in the charge is induced by the actions of defense counsel; or where defense counsel in response to an inquiry by the trial judge plainly states that he has no objections to the charge as given.

Another instance in which waiver may be found is when the trial court specifically asks for objections to the charge: “In order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure set forth in Gaither v. State and approved in White [v. State] of reserving the right to object on motion for new trial or on appeal.” The above-referenced procedural rule was articulated more succinctly by the Supreme Court in Rivers v. State decided two months after Lumpkin: “Where objections are requested, the failure to either object or to reserve the right to later object amounts to a procedural default barring appellate review of the charge.” Such waiver rule was reiterated in Tolver v. State, wherein Justice Fletcher wrote for the majority:

Tolver contends that the charge given regarding parties to a crime was confusing and not adjusted to the facts of this case. The state contends that Tolver has waived his right to object because he failed to object at the time of the charge or to reserve objections. The record reveals, however, that the trial court did not inquire as to whether counsel had objections. Therefore, Tolver cannot be deemed to have waived the right to raise his objection on appeal.

In fact, objection or reservation upon inquiry puts the trial court on notice of possible error and provides impetus for clarification and/ or correction of such. As noted by Justice Weltner in his dissent in Lumpkin: “The function of the judge is adequately and correctly to instruct the jurors. The function of counsel is to represent their client’s interest in seeing the judge perform that function.” While Justice Weltner urged specific objection in order to preserve alleged error in a charge, he also recognized that the law provides for “the reservation procedure set forth in Gaither v. Statel, supra,] and approved in White v. State” Such procedure is the process by which, upon specific request, an alleged error is made ripe for appellate review through express reservation. And there is a measure of honesty in this approach, grounded in the notions that appellate reversal of a jury’s verdict based upon issues that were neither raised nor reserved in the court below — although exception was specifically requested — is fundamentally unfair and that procedural rules are in place to prevent such results.

Here, the trial court specifically asked for exceptions to the charge. Defense counsel neither objected nor reserved exceptions for post-conviction review. Leggon’s claims of error regarding the jury charge are thus waived.

3. Leggon next contends “[t]he trial court erred in not allowing Appellant to cross-examine the GBI agent in regard to what the agent learned from Ebony Roby concerning the gun that the decedent was carrying to shoot Appellant.” As a factual basis for such question, Leggon claims that, “[according to testimony of one of Appellant’s friends, Otis Brinson, Ebony Roby told him and Appellant that decedent was carrying a .45 pistol to use on Appellant.” We have reviewed the testimony of Brinson, however. In fact, Brinson testified that Priscilla Roby — Ebony’s sister — allegedly made the statement in question. Moreover, Leggon did not call Ebony Roby to testify in order to ascertain what, if anything, she told the investigating officer. And when Priscilla Roby was called by the defense, she testified that no one told Brinson and Leggon that the victim was carrying a weapon.

“The scope of cross-examination is within the sound discretion of the trial court, and in the absence of an abuse thereof, will not be disturbed by this Court.” Since Leggon’s cross-examination question about Ebony Roby had no factual basis and also called for hearsay, we will not find an abuse of discretion in sustaining an objection thereto.

4. We find no reversible error in permitting witness Coley to testify about statements made by Williams just prior to the shooting. The trial court properly admitted the complained-of hearsay statements as either res gestae or as made in the presence of the defendant. Further, Williams took the stand and testified to precisely the same facts. “Evidence which is cumulative of other legally admissible evidence of the same fact[ ] renders harmless admission of incompetent evidence.”

5. Next, Leggon contends the trial court denied him a thorough and sifting cross-examination by limiting defense counsel’s use of the words “crew” and “posse” when referring to the victim and those of his friends who were present at the city gym. We disagree.

(a) Even a cursory review of the transcript shows that, throughout the entire trial, both defense counsel and the prosecutor repeatedly used the word “crew” to refer to the victim and his friends. Thus, Leggon’s complaint about a limitation on the term “crew” is completely without factual basis.

(b) At trial, Leggon argued that “the term ‘posse’ ... is a common term used by kids in this community all over the country as far as friendship, close friendship. I’m not saying gangs or anything like that.” Before this Court, however, Leggon argues that “[t]here was strong evidence of gang type relationship between the victim’s friends and the victim,” making the use of the word “posse” relevant because “it is the defense attorney’s duty to cast doubt and aspersions on the victim, and, as in this case, the victim’s friends.”

Just as we decline to recognize a “duty” on the part of a defense attorney to cast aspersions on a victim and his friends, we likewise reject Leggon’s contention that the term “posse” implies only “close friendship.” While this judicial body solemnly undertakes its cardinal obligation to uphold profoundly important principles of law, such lofty duty does not blind us to the commonalities of human experience. Nor do we fail to recognize a ruse when we see one. The term “posse” as it is currently used implies gang membership, not simply close friendship. And, indeed, from the record it appears that the gang-related inference such term raises was the rationale for its use by defense counsel, despite protestation to the contrary in the court below. In this case, however, there was no evidence of gang activity. Thus, the trial court did not abuse its discretion in sustaining the State’s objection to the term “posse.”

6. Leggon next contends his question to the investigating officer, “Why is it that you wear a pistol or another weapon,” was somehow relevant to Leggon’s claim of self-defense and that the trial court denied him a thorough and sifting cross-examination by sustaining an objection thereto. Yet, when the trial court sustained the State’s relevancy objection, defense counsel replied, “Okay,” and moved on. “No matter how erroneous a ruling of the trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.” Accordingly, the instant claim of error is waived.

Perhaps in recognition of this fact and in awareness of the Supreme Court of Georgia’s recent holding in Paul v. State wherein — regardless of waiver — all claims raised under the banner of OCGA § 17-8-57 must be reviewed for plain error, Leggon also contends the trial court’s statement, “That is sustained,” made in response to the State’s objection “rose to the level of commentary on the evidence by the court” in violation of OCGA § 17-8-57. However, “[t]he statutory inhibition (OCGA § 17-8-55) against an expression or intimation of opinion by the trial court as to the facts of the case does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence.” Accordingly, we do not find that the trial court’s simple statement sustaining an objection in any way implicates OCGA § 17-8-57. And we decline to address such patently meritless claim of error simply because Code section 17-8-57 is invoked.

7. Finally, Leggon contends the State failed to prove that the homicide of the victim occurred on the specific date alleged in the indictment and, thus, the trial court erred in not directing a verdict based on such “material variance.” We disagree.

[Wlhere the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations, as long as the defendant is not surprised or prejudiced by presentation of evidence that the offense occurred at a time substantially different from that alleged in the indictment.

Decided May 3, 2001.

Keith M. Morris, for appellant.

Stephen D. Kelley, District Attorney, for appellee.

The indictment in this case alleged that the victim was murdered “on or before September 29, 1996,” and such date was not pled as a material allegation of the indictment. The evidence showed that Leggon shot the victim on August 29, 1996, which date was included in the “on or before” time frame stated in the indictment and was within a month of the specific date listed, i.e., well within the seven-year statute of limitation. Accordingly, there was no error.

Notwithstanding the above, Leggon attempts to show surprise and prejudice by arguing that “Appellant’s self-defense revolved around facts known to Appellant on September 29, 1997,” while, “[a] 11 witnesses against Appellant testified as to a series of events that took place on August 29, 1997.” However, Leggon put forward a claim of self-defense, not alibi. We will not lend credence to an argument that Leggon’s alleged acts of self-defense in killing the victim were factually dependent on the date he killed the victim. There is no showing that Leggon was not keenly aware of the specific facts surrounding the incident, regardless of the date alleged in the indictment. Under the circumstances, the indictment charging Leggon with the murder of the victim “on or before September 29,1996,” was sufficient to allow Leggon to prepare his claim of self-defense and to protect against double jeopardy concerns.

Judgment affirmed.

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

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

        Espinoza v. State, 244 Ga. App. 96, 99 (5) (534 SE2d 824) (2000).

       OCGA § 16-5-2 (a) (“A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person”).

       2000 Ga. LEXIS 342, Case No. S00C0610 (May 1, 2000).

       249 Ga. 834, 835 (295 SE2d 86) (1982).

       269 Ga. 530 (5) (500 SE2d 563) (1998).

        Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980).

       Supra.

       234 Ga. 465 (216 SE2d 324) (1975).

       243 Ga. 250 (253 SE2d 694) (1979).

        Jackson v. State, supra at 460.

       250 Ga. 303, 309 (7) (298 SE2d 1) (1982).

       Id.

       Supra.

       (Emphasis supplied.) Id. at 533 (5).

        Lumpkin v. State, supra at 839 (Weltner, J., dissenting).

       Id. at 838.

        Roulain v. Martin, 266 Ga. 353 (1) (466 SE2d 837) (1996); Clifford v. State, 266 Ga. 620, 621 (469 SE2d 155) (1996); Lucas v. State, 265 Ga. 514, 516 (2) (458 SE2d 103) (1995); Russell v. State, 264 Ga. 121,122 (3) (441 SE2d 750) (1994); McCoy v. State, 262 Ga. 699, 700 (2) (425 SE2d 646) (1993).

        Demetrios v. State, 246 Ga. App. 506, 510 (3) (541 SE2d 83) (2000).

        Jarrett v. State, 265 Ga. 28, 29 (2) (453 SE2d 461) (1995); Andrews v. State, 249 Ga. 223, 225 (290 SE2d 71) (1982); Harrison v. State, 238 Ga. App. 485, 487-488 (518 SE2d 755) (1999).

       (Citations and punctuation omitted.) Metis v. State, 206 Ga. App. 163, 165 (2) (424 SE2d 844) (1992). See also Abrams v. State, 272 Ga. 63, 64-65 (2) (525 SE2d 86) (2000) (admission of hearsay statement harmless where witness testifies to same events at trial as those portrayed in her statement).

       See Gang Members and Delinquent Behavior, U. S. Dept. of Justice, Juvenile Justice Bulletin, June 1997, fn. 2 (the term “posse” used synonymously with “street gang” in order to identify gang members). See also, e.g., Johnson v. State, 221 Ga. App. 267, 270 (3) (471 SE2d 46) (1996) (gang-related evidence that victim was member of the Reynoldstown Posse not relevant).

        Demetrios v. State, supra at 510.

       (Punctuation omitted.) Jenkins v. State, 246 Ga. App. 38, 39 (3) (539 SE2d 542) (2000).

       272 Ga. 845 (537 SE2d 58) (2000).

       Former Code section 17-8-55, relating to a judge’s expression of opinion as to matters proved or guilt of accused, was redesignated as Code section 17-8-57 by Ga. L. 1985, p. 1190, §1.

       (Citations and punctuation omitted.) Whitt v. State, 215 Ga. App. 704, 709 (4) (452 SE2d 125) (1994). See also Rowe v. State, 266 Ga. 136, 139 (2) (464 SE2d 811) (1996).

       (Citations and punctuation omitted.) Davidson v. State, 231 Ga. App. 605, 608 (2) (b) (499 SE2d 697) (1998).

       In his brief, Leggon incorrectly uses 1997 as the incident year, while the evidence and the indictment show 1996 as the year in question.

        Demetrios v. State, supra at 512 (6).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A0294.
    HULSEY v. NORTHSIDE EQUITIES, INC.
    (548 SE2d 41)
   Miller, Judge.

Plaintiff Phyllis G. Hulsey brought this tort action against Northside Equities, Inc. d/b/a the adult bar, Ponytails Lounge, seeking to recover for the tragic death of her 17-year-old daughter. On a rainy January night in 1992, Christy Lee Hulsey was struck and killed by an intoxicated driver, Rebecca June Greene. Northside’s liability was predicated on the Dram Shop Act, OCGA § 51-1-40, and also on a common law general negligence claim stemming from the alleged assumption of a duty of care. Summary judgment was granted to Northside on both claims, and plaintiff appeals. We hold that the Dram Shop Act preempts any common law liability for the server of alcohol except under its own terms, but that the scientific evidence of the driver’s blood alcohol level in this case creates a genuine issue of material fact on the Dram Shop Act’s crucial issue of whether Greene was noticeably intoxicated at the time she was served her last drink by Northside. Consequently, we affirm in part and reverse in part.

1. When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence, construing that evidence and all reasonable inferences and conclusions therefrom in the light most favorable to the nonmovant. In passing on a motion for summary judgment, however, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.

The following history is undisputed: Greene, age twenty-five at the time, worked as a nude dancer at Northside’s adult bar four days a week from 11:30 a.m. until 8:00 p.m. She was permitted but not required to consume alcoholic beverages during her shift. Usually, her boyfriend Gary would drive her to work or else she would take a cab.

On January 2, however, Gary was unable to take Greene to work. Greene felt it was too late to wait for a taxi, so, despite having smoked a joint of marijuana, she took the keys to Gary’s car and left. Throughout her shift, from her noon arrival until 6:30 p.m., Greene admittedly consumed four or five Bacardi cocktails, one of which she shared with another dancer. She received her last drink at 6:30 p.m., telling Northside staff she wanted no more alcohol because she was driving. At her request, Greene was served nothing further.

It was raining and dark shortly after 8:00 p.m. when Greene and another dancer left Northside in Gary’s car. Greene did not drink any more alcohol or smoke more marijuana while driving the car. She exited Interstate 75 northbound at Delk Road rather than Windy Hill Road, her ordinary route to Gary’s apartment on Winterset Parkway. Greene got off the ramp, claimed she got over a lane, and was going down Delk Road when “all of a sudden [her] windshield was busted.” According to the incident report, the accident occurred at 8:36 p.m. when the intoxicated Greene failed to merge left as her lane from the exit ended, then drove up on the shoulder of the road, and struck Christy Lee Hulsey from behind as she was walking east. Greene was transported to Kennestone Hospital where a blood sample was drawn. Greene’s blood tested positive for ethyl alcohol at 0.18 grams percent and positive for marijuana, and she subsequently pleaded guilty to vehicular homicide and driving under the influence of alcohol and/or drugs.

2. Under OCGA § 51-1-40, the consumption of alcoholic beverages, rather than the sale, serving, or furnishing of such beverages, is deemed the proximate cause of any injury, including death, inflicted by an intoxicated person on any person, except as otherwise provided in that Code section. And whoever sells, furnishes, or serves alcoholic beverages to a person of lawful drinking age generally “shall not thereby become liable for injury, death, or damage . . . resulting from the intoxication of such person, including injury or death to other persons.” Nevertheless, one who “knowingly . . . sells, furnishes, or serves alcoholic beverages to a person who is . . . in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle,” may become liable for injuries resulting from such intoxication when the sale, furnishing, or serving is the proximate cause of such injury or damage.

In support of its motion for summary judgment, Northside adduced the affidavits of its employees of that day, purporting to demonstrate by direct and uncontradicted evidence that Greene was not noticeably intoxicated when she was last served a drink around 6:30 p.m. nor when she left the bar after 8:00 p.m. Specifically, one bartender thought Greene was not intoxicated at 5:00 p.m. when he served her a drink. To the waitress who served Greene a cocktail for the last time at 6:30 p.m., Greene seemed fine. When another waitress served Greene mineral water “late in the day[, Greene] did not appear drunk to [her] at that time.” At about 7:30 p.m., the valet spoke with Greene, who seemed sober at that time. Another dancer saw Greene at approximately 7:45 p.m., and she “did not seem intoxicated. . . .” The “shooter girl” had a conversation with Greene right before the shift change, and Greene “did not appear to be intoxicated ... at all.” The day manager walked Greene to Gary’s car and “wasn’t concerned because she was very lucid and didn’t appear to be intoxicated in any way.”

In opposition to Northside’s motion, plaintiff showed that Greene drank only at work and did not drink every day; she had no prior alcohol-related moving violations; she pleaded guilty to vehicular homicide and driving under the influence of alcohol and/or drugs based on the tragic accident resulting in the death of Christy Lee Hulsey that occurred within 30 minutes of her driving away from Ponytails; and the Georgia Bureau of Investigation determined her blood alcohol level was 0.18 grams percent, based on a blood sample drawn no later than 10:00 p.m. Plaintiff also adduced the affidavit of Joseph L. Burton, M.D., an expert concerning the absorption and metabolism of ethyl alcohol by persons who drink alcoholic beverages. According to Dr. Burton, full absorption of a typical mixed drink by a woman produces a corresponding blood alcohol rate of 0.03 grams percent, while metabolism dissipates blood alcohol at 0.015 grams percent per hour. Based on Greene’s blood alcohol level of 0.18 around 10:00 p.m., Dr. Burton concluded she probably consumed six or more drinks, rather than the four or five she admitted to. And assuming Greene’s last drink was consumed at 6:30 p.m., Dr. Burton calculated her blood alcohol between 8:00 and 8:30 p.m. was as high as 0.20 grams percent. Final absorption occurs an hour after the last drink is consumed, and in Greene’s case that would put her peak blood alcohol level as high as 0.21 grams percent at 7:30 p.m.

The scientific reliability and objectivity of testing for blood alcohol concentration have been recognized by the General Assembly and by the courts. The salient circumstance in this case is the forensic analysis of a substantially contemporaneous blood sample, placing Greene’s blood alcohol level at 0.18 grams percent. This is direct proof that her motor skills should have been degraded. In our view, that fact distinguishes this case from precedents where circumstantial evidence of subsequent intoxication was insufficient to rebut direct and uncontradicted evidence that a person was not noticeably intoxicated when last served alcohol. Based on this reliable and objective scientific fact, Dr. Burton’s affidavit authorizes the favorable inference that at 6:30 p.m., when Greene was last served alcohol, her blood alcohol level was at least 0.15 grams percent and possibly as high as 0.18 grams percent. According to Dr. Burton, at such a level of intoxication, “there are a number of manifestations of intoxication [that] vary with the person’s history of drinking.” Such manifestations are more conspicuous to those not similarly intoxicated. “Courts and juries are not bound to believe testimony as to facts incredible, impossible, or inherently improbable. Great physical laws of the universe are witnesses in each case, which cannot be impeached by man, even though speaking under the sanction of an oath.”

Here, all of Northside’s employees testified that a 25-year-old female dancer, who had no extensive history of drinking alcoholic beverages, did not manifest any signs of noticeable intoxication despite having consumed enough cocktails to result in a blood alcohol level twice the lawful limit for safe drivers. In our judgment, a jury could find this testimony inherently improbable when juxtaposed with the objective and reliable scientific evidence, which is the strongest circumstantial evidence that the nature of the case will admit. The trial court erred in granting summary judgment against plaintiffs claim against Northside under the Dram Shop Act, OCGA § 51-1-40 (b).

3. Club rules required dancers who appeared noticeably intoxicated to surrender their keys and take a cab home. Plaintiff claimed that Northside assumed a duty of care by this policy, making out a claim under common law general negligence principles. We disagree.

Under the controlling precedent of the whole court decision in Kappa Sigma Intl. Fraternity v. Tootle, OCGA § 51-1-40 (b) affords plaintiff her exclusive remedy against Northside for damages arising from Greene’s driving while intoxicated. Consequently, the trial court correctly granted summary judgment to Northside on any arguable claim based on common law general negligence principles.

Judgment affirmed in part and reversed in part.

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

Decided April 19, 2001

Reconsideration denied May 4,2001

Browning & Tanksley, Charles B. Tanksley, for appellant.

Savage, Turner, Pinson & Karsman, Brent J. Savage, C. Dorian Britt, H. Lehman Franklin, Jr., for appellee.

        Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997) (whole court).

        McElroy v. Cody, 210 Ga. App. 201, 202 (435 SE2d 618) (1993).

       OCGA § 51-1-40 (a); Bimbrey, Minsk & Minsk, LLC v. Yirga, 244 Ga. App. 726, 727-728 (1) (535 SE2d 792) (2000).

       OCGA § 51-1-40 (b).

       Id. The trial court concluded a fact issue existed whether Northside knew Greene would soon be driving, and no cross-appeal challenges this conclusion.

        Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516) (1991); Johnson v. State, 231 Ga. App. 215, 216 (498 SE2d 778) (1998).

        Bimbrey &c., supra, 244 Ga. App. at 729 (1) (where expert could only assume driver had a blood alcohol level of 0.10 grams percent 3.75 hours after last being served, his opinion that such driver would have shown manifestations could not overcome direct testimony that driver appeared and acted normal at the time he was last served or furnished alcohol); McElroy, supra, 210 Ga. App. at 201-202 (deputy’s testimony that, four hours after driver left party, he was observed in convenience store parking lot extremely intoxicated did not contradict direct testimony that driver was not noticeably intoxicated when last furnished alcohol).

       See Cheevers v. Clark, 214 Ga. App. 866, 868 (2) (449 SE2d 528) (1994). Indeed, expert testimony about the metabolic rate for alcohol dissipation is not necessary in order to support the inference that a blood alcohol level an hour before testing was higher than that registered by the subsequent test. Id.

        Patton v. State, 117 Ga. 230, hn. 5 (43 SE 533) (1903).

       In both civil and criminal proceedings, OCGA § 40-6-392 (b) (3) authorizes the inference that a person was under the influence of alcohol to the extent it was less safe for him to drive, if there was at the time an alcohol concentration of 0.08 grams or more.

       Claims against the driver and the owner of the vehicle were dismissed with prejudice.

       221 Ga. App. 890, 893 (2) (473 SE2d 213) (1996) (whole court).


author: Ruffin, Judge.

text:
    A01A0007.
    AMERICAN GLOBAL DEVELOPMENT GROUP, INC. et al. v. SASSER & WEATHERFORD, INC.
    (548 SE2d 465)
   Ruffin, Judge.

Real estate broker Sasser & Weatherford, Inc. (“S&W”) sued American Global Development Group, Inc. (“American Global”) and Luckie Holdings, LLC (“Luckie”), alleging that the defendants breached their contract with S&W to pay the latter a finder’s fee. Following trial, a jury found both American Global and Luckie liable to S&W for the fee. American Global and Luckie appeal, asserting that there was insufficient evidence to support the jury’s verdicts and that the trial court therefore erred in denying their motions for directed verdict and for judgment notwithstanding the verdict. For reasons that follow, we affirm the court’s rulings concerning American Global, but reverse the rulings concerning Luckie.

On appeal from a trial court’s denial of motions for directed verdict and judgment n.o.v.,

we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom [,] demands a certain verdict. Thus, a judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. If the evidence is conflicting, or if insufficient evidence exists to make a one-way verdict proper, judgment n.o.v. should not be granted. Further, when considering these motions, trial and appellate courts must view the evidence in the light most favorable to the party securing the jury verdict.

Construed in this light, the evidence at trial showed that American Global was incorporated on August 31, 1994, for the purpose of developing hotels in Atlanta and China. American Global’s president was Steven Hsieh, and Richard Patton was its vice-president, secretary, and a director on the company’s board. American Global had three investors, one of which was the Parkwood Group (“Parkwood”). Patton was also president of Parkwood. In addition to investing in projects with American Global, Parkwood developed hotels with other investors.

In August or September 1994, Patton contacted S&W’s principal, Jesse Sasser, requesting that Sasser “look around for some hotel sites” in the vicinity of the Georgia Institute of Technology and Coca Cola corporate headquarters. Patton explained to Sasser that he had “some foreign investors that may be interested in doing a hotel project.” It was a common practice for Sasser not to have a written fee agreement in place at this early stage because he did not like to spend time negotiating contracts until he ensured there was some chance of finding a potential site and that a purchase would likely follow.

Sasser looked at a number of parcels, and by the end of February 1995, he found one that he thought would be suitable. After Sasser discovered who owned the property, he contacted Patton to discuss the property and a fee arrangement. Because Patton did not need a broker to negotiate purchasing the property, he asked whether Sasser would “be willing to take a [$25,000] fee in lieu of a commission,” which would have been approximately $75,000, and Sasser agreed.

Parkwood decided to proceed with the project and approached both Marriott and Holiday Inn about putting a hotel on the site. Eventually, Parkwood struck a deal with Holiday Inn and began meeting with potential investors for the project, including American Global. After studying Parkwood’s proposal, American Global agreed to develop the hotel. On November 8, 1995, American Global created a separate entity, Luckie, to purchase the property and construct the hotel. It appears that the project went as planned, and the hotel was built.

Meanwhile, on November 14, 1995, and July 17, 1996, Sasser sent letters to Patton at Parkwood memorializing S&W’s fee agreement for finding the hotel site. The second letter stated that it “will memorialize our agreement that in the event you, the Parkwood Group or any of its members, partners or affiliates purchase, lease or enter any venture involving the above-referenced property, you or Parkwood will pay to [S&W] a fee of $25,000 for services rendered.” The letter included a signature line for “Richard Patton” to sign in agreement. After receiving the letter, Patton crossed out the referenees to “Parkwood Group” and “you or Parkwood” and wrote in their place “American Global Development Group, Inc.” and “AGDG.” In addition, on the signature line, Patton added under his name the designations “Senior Vice President, American Global Development Group, Inc.” and “member, Luckie Holdings, LLC.” Patton testified that prior to closing on the land purchase, he informed American Global’s president, Hsieh, about S&W’s fee. Patton also testified that because the finder’s fee was part of the land cost, “it has always been in the budget to pay [the] fee.” Accordingly, Patton returned the letter to S&W with a cover letter explaining the changes. Patton testified that he similarly amended other documents he executed with Holiday Inn before American Global and Luckie became involved in the project.

Although American Global presented evidence that the company required Hsieh to approve all contracts, Patton stated that he was not told about the policy, and he repeatedly and unequivocally testified that he was authorized to sign S&W’s agreement letter on behalf of American Global. Indeed, according to Patton, during the development process, he signed a lot of documents “bind[ing] the company.”

Several documents admitted into evidence support Patton’s assertion that he was authorized to sign the S&W agreement on behalf of American Global. For instance, American Global’s bylaws provided that the company’s board of directors could authorize any officer to enter into contracts, and, in a resolution, the board gave American Global’s officers broad authority to execute agreements associated with financing for the project. Specifically, the resolution provided that the execution of any such document or instrument “by any officer of the Corporation shall be fully binding on the Corporation without [attestation by another officer].” In addition, S&W presented numerous contracts executed by Patton as an agent for Luckie and American Global, including loan agreements, a licensing agreement, construction agreements, a letter of intent, a development agreement between American Global and Luckie, a lease, and an amendment to the purchase agreement. The signature lines on some of these documents reveal that Patton executed them in his capacity as the senior vice-president of American Global and as a member or manager of Luckie. Based on this evidence, the jury returned verdicts finding American Global and Luckie liable to S&W for $25,000.

1. Appellants assert that the trial court erred in denying Luckie’s motions for directed verdict and judgment n.o.v. because there is no evidence that Luckie was a party to the contract. We agree.

Aside from S&W’s bare allegation in its complaint that “Defendants contracted to pay S&W for services,” there is nothing of record indicating that Luckie agreed with S&W to pay the finder’s fee or that S&W looked to Luckie for payment. In fact, S&W repeatedly alleges in the complaint that the agreement was between itself and American Global. Significantly, the only demand letter in the record is from S&W to American Global, without any mention of Luckie. Most importantly, however, the undisputed evidence shows that when Patton changed S&Ws agreement letter, he named American Global as the sole contracting entity. Accordingly, because there was no evidence that Luckie was ever a party to the agreement, the trial court erred in failing to direct a verdict for Luckie.

2. American Global asserts that the trial court erred in refusing to grant it a directed verdict or judgment n.o.v. because there was no evidence that Patton had actual or apparent authority to bind the company. We disagree.

Evidence discussed above revealed that Patton, as American Global’s vice-president and secretary, had broad authority to enter contracts on behalf of the company. These contracts related not only to financing, but also to purchasing the land, licensing, and construction. Patton testified extensively about his authority to bind American Global and repeatedly stated that he had authority to enter the agreement with S&W on American Global’s behalf.

As a general rule, an agent can act “within the authority granted to him, reasonably interpreted.” Where, as here, the parties dispute the extent of that authority, a jury must resolve the issue. Accordingly, because there was evidence of Patton’s authority, the trial court properly allowed the jury to resolve this issue.

3. American Global asserts that the contract was unenforceable because there was “no meeting of the minds . . . as to the parties to the contract and to the purported contingency as to when it becomes due.” We disagree.

Although there may have been some initial uncertainty about which entity would be liable for the finder’s fee, “[a] contract which is originally and inherently too indefinite may later acquire precision and become enforceable by virtue of the subsequent acts, words, or conduct of the parties.” Evidence at trial showed that Patton, who was acting on behalf of American Global, clarified that American Global agreed to pay the $25,000 for S&W’s performance under the contract. Thus, there was evidence from which the jury could identify the parties to the contract.

Decided May 4, 2001.

Richard K. O’Donnell, G. Brian Raley, for appellants.

Donna W. Howell, Dennis K. Calhoun, for appellee.

4. American Global also asserts that, even if there was a binding contract, the trial court erred in failing to direct a verdict in its favor because there is no evidence that “Patton, Parkwood, or a member, partner or affiliate of Parkwood” purchased the property. We have already concluded, however, that the evidence permitted the jury to find that Patton was authorized to enter the contract on behalf of American Global, and the contract signed by Patton, as vice-president of American Global, substituted that company for Parkwood. Thus, the jury was not required to find that a member, partner, or affiliate of Parkwood purchased the property.

5. To the extent that American Global asserts that the contract was unenforceable because it did not sufficiently describe the conditions under which American Global would be required to pay the fee, we disagree. The agreement letter modified by Patton clearly stated that American Global would be required to pay the fee “in the event that [Patton], [American Global] or any of its members, partners or affiliates purchase, lease or enter any venture involving the [property].” Thus, this argument is without merit.

6. Finally, American Global asserts that it was entitled to a directed verdict and judgment n.o.v. because the evidence showed that Patton’s assignment of the debt from Parkwood to American Global constituted an illegal conflict of interest transaction by Patton. However, that portion of the transcript cited by American Global does not support its assertion that this error was preserved for consideration on appeal. Instead, the cited transcript pages show that American Global merely asserted the conflict of interest argument during the charge conference while discussing one of S&W’s requested instructions. Thus, “[e]rror, if any, was not preserved for our review.”

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Ellington, J., concur.

       (Citation and punctuation omitted.) Dunaway v. Parker, 215 Ga. App. 841, 849 (4) (453 SE2d 43) (1994).

       See B & C Tire & Battery v. Cooper Tire &c. Co., 212 Ga. App. 228, 230 (1) (441 SE2d 468) (1994) (ruling that directed verdict was appropriate where contract was plain, unambiguous, and subject to only one reasonable interpretation).

       OCGA § 10-6-21.

        See Allen & Bean, Inc. v. American Bankers Ins. Co., 153 Ga. App. 617, 619 (266 SE2d 295) (1980).

       See id.; see also Southtrust Bank v. Parker, 226 Ga. App. 292, 294-295 (1) (486 SE2d 402) (1997).

       (Citation sold punctuation omitted.) Holland v. Holland Heating &c., 208 Ga. App. 794, 795 (1) (432 SE2d 238) (1993).

       (Emphasis supplied.)

        Time Warner Entertainment Co. v. Six Flags Over Ga., 245 Ga. App. 334, 347 (2) (b) (537 SE2d 397) (2000).


text:
    A01A0148.
    MAIL ADVERTISING SYSTEMS, INC. v. SHROKA.
    (548 SE2d 461)
   Ruffin, Judge.

David Shroka sued Mail Advertising Systems, Inc. (“MAS”) for breach of contract. Following a bench trial, the court entered judgment in favor of Shroka. MAS appeals, challenging several of the trial court’s findings and its damages calculation. For reasons that follow, we affirm in part and reverse in part.

We review appeals from bench trials, where the trial judge sits as trier of fact and has the opportunity to assess witness credibility, under the clearly erroneous standard. Accordingly, “we will not disturb a trial court’s findings of fact if there is any evidence to support them.”

The record shows that Shroka signed an employment agreement with MAS on October 10, 1994. Pursuant to that agreement, Shroka became president of the company, reporting directly to principal owner Hugh Pannell. The agreement provided that “[u]nder the guidance and supervision of Hugh Pannell, Shroka will take control of all business activities and personnel decisions.” It specified a salary of $5,000 per month, or $2,308 every two weeks, and stated that “[t]his initial contract will run from October 10th, 1994 through January 10th, 1995 at which time a new salary agreement and incentive program will be drafted and agreed on by Hugh Pannell and David Shroka.” The agreement also indicated that MAS would pay “basic Medical/Dental insurance” for Shroka and his wife.

Shroka began working for the company on or about October 10, 1994. Although Pannell sometimes criticized Shroka for being too aggressive, Shroka testified that Pannell “was very pleased” with his work. Nevertheless, Pannell fired Shroka on October 21, 1994, just two weeks into his contract, and paid him for only those two weeks. Shroka subsequently sued MAS for breach of contract, seeking three months salary plus reimbursement for dental expenses incurred by Shroka’s wife on November 9, 1994.

According to Pannell, Shroka told Pannell on October 20, 1994, that he would be absent from work that day because “he was spending the day with his [stock]broker.” During Shroka’s absence, Pannell learned that Shroka planned to clean MAS’s warehouse, where the company kept materials belonging to customers. This concerned Pannell because some customers paid the company to store their materials. Pannell also received complaints that day from various employees, who did not like Shroka’s manner and attitude.

The next day, Shroka called MAS and told Pannell that “he was still having so much fun with his stockbroker that he was going to have to spend the day down there.” Pannell asked Shroka to come into the office, and Shroka reported to work that afternoon. When Shroka arrived, Pannell fired him. Explaining the termination at trial, Pannell noted that Shroka failed to report to work for two days, upset long-term employees, and did not consult Pannell about all of his activities, including the warehouse cleanup. On cross-examination, Pannell admitted that Shroka was a hard worker, but stated that he found Shroka’s personality “a little abrasive.”

Shroka testified that he met daily with Pannell, whom he consulted about his activities. He denied that he ignored company rules, such as the no-smoking policy in the building, and stated that he only intended to discard from the warehouse “nonuseable material” that could be disposed of legally. He also testified that his conflicts with employees arose because “people tend to resist change.” Shroka denied skipping work to spend time with his stockbroker, claiming that he performed job-related duties while out of the office. According to Shroka, he worked from early in the morning until late at night, did a good job in his new position, and was shocked by his termination.

Following the bench trial, the trial court found that the parties entered into an employment contract for a definite term of three months. It also concluded that MAS was not authorized to terminate the agreement. The trial court awarded Shroka his full salary under the three-month contract (minus the two weeks of pay that he had already received) plus expenses relating to the November 9, 1994 dental work.

1. MLAS argues that the trial court erred in finding that Shroka’s employment contract extended for a definite term of three months. It asserts that the contract’s two-week pay period established an employment term “terminable after two weeks.” We disagree.

Under OCGA § 34-7-1,

[i]f a contract of employment provides that wages are payable at a stipulated period, the presumption shall arise that the hiring is for such period, provided that, if anything else in the contract indicates that the hiring was for a longer term, the mere reservation of wages for a lesser time will not control.

Although Shroka’s contract set up a two-week pay period, that provision does not define the employment term here. The contract specifically stated that it “will run from October 10th, 1994 through January 10th, 1995,” a three-month period. Since explicit language in the contract extended the employment term for three months, “the mere reservation of wages [for a two-week time period] will not control.”

On appeal, MAS relies heavily on Burton v. John Thurmond Constr. Co. In Burton, the disputed employment contract set the employee’s salary at “$2,000.00 per month for the first six (6) months. At that time salary is to be increased to $3,000.00 per month for the next six months, at which time [the contracting parties] will reevaluate and make new decision [sic] regarding salary.” The employee was terminated within the first six months and sued, claiming that the contract defined an employment term of not less than one year. We agreed with the trial court that nothing in the contract rebutted the statutory presumption that the contract’s pay schedule established a one-month term of employment, after which the employment became terminable at will. We specifically noted that the contract “contained no provision setting forth a definite term of employment.”

Burton is clearly distinguishable from this case. The agreement between Shroka and MAS provided for a definite three-month term of employment running from October 10, 1994, through January 10, 1995. The trial court did not err.

2. MAS also challenges the trial court’s factual finding that the company lacked cause to terminate Shroka. We find no error.

Shroka’s employment contract contained no language governing termination. Like any contract, however, it “imposed upon each party a duty of good faith and fair dealing in the performance and completion of their respective duties and obligations.” The trial court determined that the true reason behind Shroka’s dismissal was his failure to report to work for two days. It further concluded that this absence “did not constitute an abandonment and breach of the contract [by Shroka] and did not authorize [MAS] to terminate [Shroka’s] employment.”

MAS argues that the trial court ignored the other grounds given by Pannell for Shroka’s termination, such as the alleged conflict between Shroka and the company’s long-time employees. The record belies this argument. Following the bench trial, the trial judge asked the parties to brief whether Shroka’s absence from work “and or other items and changes [in] policy . . . [are] such conditions that allow termination for cause.” The trial court recognized the possibility that some other grounds factored into the decision. After reviewing the evidence and the parties’ briefs, it apparently determined that Shroka’s mere absence resulted in his dismissal.

The trial court was authorized, as factfinder, to disbelieve Pannell’s testimony about other grounds for the termination. The evidence showed that Pannell fired Shroka on October 21, 1994, immediately following the two-day absence. When Pannell explained at trial his reasons for the termination, he first noted Shroka’s absence. He mentioned the other possible problems, such as the conflicts with employees and the warehouse cleanup, only after stating that Shroka was absent from work. It also appears that Pannell first learned about these other alleged problems on October 20, 1994, and did not question Shroka about them before firing him the next day. The trial court could have reasonably determined that Pannell based his decision on Shroka’s failure to report to work, rather than these unilateral allegations.

The evidence also supports the trial court’s conclusion that Shroka’s two-day absence did not authorize MAS to terminate the contract. In this case,

[a]mple testimony allowed the [trial court] to determine that [Shroka] did not defectively or deficiently perform his employment duties or obligations, so as to be entitled to lost wages for the remaining period of the term. As to contrary evidence, it is the duty of the [factfinder] to determine the credibility of witnesses and resolve conflicting testimony.

Accordingly, this enumeration of error has no merit.

3. Finally, MAS argues that the trial court erroneously included in the damages award dental expenses incurred by Shroka’s wife on November 9, 1994. We agree.

The employment contract obligated MAS to pay “basic Medical/ Dental insurance for David Shroka and his wife.” The company did not promise to reimburse Shroka for these expenses directly; it merely pledged to pay for insurance. At the bench trial, Shroka submitted into evidence the bill relating to his wife’s dental work. He also testified that the dental work stemmed from a preexisting condition for which his wife sought treatment before he signed the employment contract with MAS. He presented no evidence about the type of dental insurance offered by the company, the amount and extent of coverage, or whether such insurance would cover a preexisting condition.

Decided May 4, 2001.

William T. Cox, Jr., for appellant.

H. Darrell Greene, for appellee.

In contract disputes, the plaintiff must provide evidence that “will furnish [the factfinder] data sufficient to enable [it] to estimate with reasonable certainty the amount of the damages. It cannot be left to speculation, conjecture and guesswork.” In this case, the trial court ordered MAS to reimburse Shroka for the entire dental bill. Nothing in the record, however, shows whether the dental work would have been covered by insurance or the extent of any coverage. Without some competent evidence about the company’s dental insurance, the award for dental expenses was mere guesswork.

The trial court erred in including the dental expenses in the damages award. Accordingly, this case is remanded to the trial court with direction that the award of damages be reduced by $567, the amount of the November 9, 1994 dental bill.

Judgment affirmed in part and reversed in part and case remanded with direction.

Johnson, P. J., and Ellington, J., concur.

        Smith v. Direct Media Corp., 247 Ga. App. 771-772 (544 SE2d 762) (2001).

       Id.

       Shroka apparently had asked a number of employees to help him clean the warehouse the following Saturday.

       The trial court determined that MAS “was authorized not to pay [Shroka] for the two days [Shroka] was not at his place of employment.” Accordingly, it subtracted from the award Shroka’s salary for October 20 and 21, Í994, when he did not report for work.

       (Emphasis supplied.)

       OCGA § 34-7-1.

       201 Ga. App. 10 (410 SE2d 137) (1991).

       Id.

       Id. at 11; see also OCGA § 34-7-1 (statutory presumption).

       Id.

       See Wojcik v. Lewis, 204 Ga. App. 301, 303 (1) (419 SE2d 135) (1992).

        Toneee, Inc. v. Thomas, 219 Ga. App. 539, 543 (4) (466 SE2d 27) (1995).

       Id.

       (Citations and punctuation omitted.) Get. Power Co. v. Maxwell, 169 Ga. App. 324, 327 (3) (312 SE2d 645) (1983); see also Dobbs v. Titan Properties, 178 Ga. App. 389, 391-392 (3) (343 SE2d 419) (1986).

       See Maxwell, supra.


text:
    A01A0359.
    LEWIS v. THE STATE.
    (548 SE2d 457)
   Ruffin, Judge.

A jury found Samuel Lee Lewis guilty of two counts of armed robbery. Lewis appeals, challenging the sufficiency of the evidence supporting his convictions. He also argues that he was denied effective assistance of counsel and that the trial court erred in not directing a verdict of acquittal. For reasons discussed below, we affirm.

1. “In reviewing [Lewis’] challenge to the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility.” Instead, we view the evidence in the light most favorable to support the jury’s verdict and determine whether it is sufficient to authorize a rational trier of fact to find Lewis guilty beyond a reasonable doubt of each element of the charged offenses.

Viewed in this manner, the evidence shows that Claire Sanford was robbed at gunpoint while working during the evening hours at a Comfort Inn in Baldwin County. Sanford gave the gunman money, and he left. A video surveillance camera recorded the robbery. Four to five hours later, in the early morning hours, a gunman robbed a Baldwin County Jet Food Store. Michael Norton, the store clerk, handed the gunman a cigar box filled with rolled coins and money from the cash drawer. This robbery also was captured on videotape. Both surveillance videotapes were admitted into evidence at trial.

Shortly after the Jet Food Store robbery, police officers reviewed the two surveillance tapes and determined that the same individual committed both robberies. One officer recognized the gunman from her neighborhood. Although the officer did not know the gunman’s name, she recalled that he lived with her neighbor, Azzie Yarbrough. At trial, this officer identified Lewis as the man she observed on the videotape.

Investigating officers staked out Yarbrough’s house early that same morning. During the stakeout, they noticed a taxi approaching the Yarbrough property and saw a man duck down in the passenger’s seat. Before the individual ducked down, one officer recognized him as the gunman in the two surveillance videotapes. The officers stopped the cab, pulled the passenger out, and arrested him. An officer identified Lewis as the individual arrested outside the Yarbrough home.

Police found two rolls of coins inscribed with Tanya Stevens’ name and address in Lewis’ pockets. Stevens testified that she wrote her name and address on the rolled coins, which she used to purchase gas at the Jet Food Store. The Jet Food Store’s manager recalled that a female made a purchase with rolled coins 18 to 40 hours before the robbery. He also testified that he typically placed any rolled coins he received in a box under the store’s checkout counter.

Through their investigation, police discovered that Lewis was driving a car belonging to Yarbrough’s son on the night and early morning of the robberies. They located the car at a local car wash, and Lewis confirmed that he ran out of gas in that area. Inside the car, police found a shirt and two hats that, according to witnesses, appeared to be the shirt and hats worn by the gunman during the robberies. Police also discovered a cigar box containing loose change outside the car. Norton identified this box as the cigar box filled with rolled coins that the gunman took from the Jet Food Store.

After police arrested Lewis, they placed him in a lineup. Neither Sanford nor Norton positively identified him during the lineup. At trial, however, both identified Lewis as the robber.

This evidence was sufficient for the jury to find Lewis guilty of both armed robberies beyond a reasonable doubt. The witness testimony and physical evidence, including the identification testimony from the victims and police officers, the surveillance videotapes, the shirt and hats located in the car driven by Lewis, the cigar box discovered near the car, and the rolled coins found on Lewis, provided ample support for the jury’s verdict. Lewis’ first enumeration of error has no merit.

2. Lewis also argues that he was denied effective assistance of counsel. He claims that trial counsel was deficient in not objecting to or moving to suppress Sanford’s and Norton’s in-court identification testimony. To prevail on this claim, Lewis must demonstrate both that trial counsel’s performance was deficient and that it prejudiced his defense. In other words, he “must overcome the strong presumption that counsel’s performance fell within a broad range of reasonable professional conduct and must show that there is a reasonable probability that, absent counsel’s deficiency, the result of the trial would have been different.”

Two of Lewis’ three trial counsel testified at the hearing on his motion for new trial. Defense counsel noted that Sanford and Norton confirmed before trial that they had not been able to identify Lewis during the lineup. Because neither victim had positively identified Lewis, the defense team wanted the jury to hear about the lineup. According to defense counsel, “[t]hat was our best evidence, that [the victims] could not identify [Lewis] before trial.” Although the in-court identifications apparently surprised the defense team, counsel did not fail to react. Lewis’ lead counsel testified:

[M]y theory was, up until the day of trial including the hearing where [Sanford] had an opportunity to view . . . the defendant, she could not identify him. The first time in trial in front of the jury she could identify him. I didn’t know any way — we could have filed a motion to say, ‘Your honor, she can’t testify because she’s changing her mind.” I’m not aware of any law that would prevent her from taking the stand. So, I thought the most effective way of presenting that, my trial strategy, if you will, was to — if she’s going to go ahead and turn, let her do it in front of the jury for the very first time so we can bring up this big contradiction. And that’s exactly what we did.

Defense counsel’s trial strategy, therefore, involved cross-examining the victims about their changing stories, rather than objecting to or trying to suppress the identification testimony. The record shows that counsel followed through with this plan by thoroughly examining the witnesses about the contradictions. This strategic decision to question Sanford and Norton does not constitute ineffective assistance of counsel. As we have found,

[t]rial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.

Furthermore, even if trial counsel’s performance could be viewed as deficient, Lewis has not shown that “any deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s outcome would have been different but for that deficiency.” Although the two victims identified Lewis at trial, that testimony gave defense counsel fodder for cross-examination, which counsel used to “show that there was some doubt that [Lewis] was the [robber].” The in-court identification “opened the door to a wealth of opportunities for eroding the state’s case, which [Lewis’] counsel seized upon.” Accordingly, the trial court did not err in concluding that Lewis received effective assistance of counsel.

Decided May 4, 2001.

Thomas J. O’Donnell, Jr., for appellant.

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.

3. In his final enumeration of error, Lewis asserts that the trial court erred in failing to grant a directed verdict of acquittal. When reviewing the denial of a directed verdict of acquittal, we employ the same standard used to review the sufficiency of the evidence. We have already found the evidence sufficient to support Lewis’ convictions on both counts of armed robbery. It follows that the trial court did not err in denying his motion for directed verdict.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

        Goss v. State, 247 Ga. App. 520 (544 SE2d 206) (2001).

       Id.

       The state alleged and presented evidence that Lewis actually used a replica of a pistol (a toy gun) during both robberies.

       Norton initially pointed out two individuals in the lineup that resembled the robber. According to Norton, he finally settled on one individual and told a detective about his choice. The detective, however, testified that Norton did not positively identify anyone as the robber.

       Norton stated that he was “99 percent sure” and Sanford testified that she was “[r]eal certain” that Lewis was the robber.

       OCGA § 16-8-41; Thorne v. State; 246 Ga. App. 741 (1) (542 SE2d 157) (2000).

        Allen v. State, 272 Ga. 513, 516 (6) (530 SE2d 186) (2000).

       Id.

       (Punctuation omitted.) Leon v. State, 237 Ga. App. 99, 105 (4) (513 SE2d 227) (1999).

        Caldwell v. State, 245 Ga. App. 630, 635 (5) (538 SE2d 531) (2000).

        Jamison a State, 164 Ga. App. 63, 64 (3) (295 SE2d 203) (1982).

       Id.

        Yarbrough v. State, 241 Ga. App. 777, 780 (4) (527 SE2d 628) (2000).


author: Andrews, Presiding Judge.

text:
    A01A0765.
    HEARD v. MITCHELL’S FORMAL WEAR, INC. et al.
    (549 SE2d 149)
   Andrews, Presiding Judge.

Deborah Heard appeals from the trial court’s grant of summary judgment to Mitchell’s Formal Wear on her claims for assault and battery, intentional infliction of emotional distress, and negligent supervision. For reasons which follow, we affirm the judgment of the trial court.

This case arose after an altercation between Heard and John Sullivan, another employee and assistant manager at the Mitchell’s Formal Wear store (Mitchell’s) where Heard worked. On the day of the incident, Heard was working in the front of the store and waiting on customers, and Sullivan was working in the back. It was Sullivan’s day off, but he came in to finish some paperwork. He was dressed casually and did not intend to see any customers that day.

Heard waited on a customer who had talked to Sullivan previously and claimed Sullivan had offered him a discount. According to Heard, she went in the back to ask Sullivan to come talk to the customer, and Sullivan refused, telling her to handle it herself. Heard left, talked to the customer and again went back to ask Sullivan for help. Sullivan again refused and swore at Heard as she was leaving. Heard turned around and asked him what he had said, and Sullivan put his hand up near her face and swore at her again. Heard then began swearing at Sullivan, and he pushed her on the shoulder. Heard pushed him back, and another employee came and separated them. Heard claimed that her “shoulders just snapped” when Sullivan pushed her.

Heard later filed the instant action against Sullivan and Mitchell’s. Mitchell’s moved for summary judgment, contending that Heard’s claims were barred by the exclusive remedy provision of the Workers’ Compensation Act, and the trial court granted the motion. This appeal followed.

1. As to Heard’s claims of assault and battery and intentional infliction of emotional distress, this issue has already been decided adversely to Heard. See, e.g., Solis v. Lamb, 244 Ga. App. 8 (534 SE2d 582) (2000); Webster v. Dodson, 240 Ga. App. 4 (522 SE2d 487) (1999); Baldwin v. Roberts, 212 Ga. App. 546 (442 SE2d 272) (1994). Under OCGA § 34-9-11 (a), the Workers’ Compensation Act (Act) is an employee’s only remedy for the intentional torts of a co-worker, “unless the tortious act was committed for personal reasons unrelated to the conduct of the employer’s business.” Webster, supra at 6; Wall v. Phillips, 210 Ga. App. 490, 491 (436 SE2d 517) (1993).

In cases where an employee is injured in a physical altercation with another person occurring on the job but stemming from personal animosity, her injuries will nevertheless be considered compensable under the Workers’ Compensation Act if it is shown that the animosity arose from reasons related to the employee’s performance of her work-related duties. Conversely, if the animosity giving rise to the assault stemmed from reasons not related to the injured employee’s performance of her work, then her injuries will not be considered compensable under the Act.

Baldwin, supra at 546.

In Baldwin, the owner told an employee to leave after she yelled at a customer. The argument escalated, and the owner called police to have the employee removed. The employee claimed that as police were taking her out of the store, the owner hit her in the face with his hand. This Court held that the employee’s claim of battery was barred by the exclusive remedy provision of the Act. Id. at 547.

In Webster, the co-worker’s “hand made contact with Webster’s shoulder” in order to get Webster to be quiet while the co-worker talked on the phone to a complaining customer. Id. at 5. This Court concluded that Webster’s only remedies for her claims of assault and battery and intentional infliction of emotional distress were under the Workers’ Compensation Act. Id. at 7.

Likewise, in this case, the physical contact arose because Heard was trying to convince Sullivan to help with one of the customers. Thus, Sullivan’s actions were directed at Heard because of a work-related activity, occurring during working hours and arising from the performance of both Heard’s and Sullivan’s duties at Mitchell’s. Webster, supra at 6.

Decided May 4, 2001.

Robert Kenner, Jr., for appellant.

Ford & Harrison, John L. Monroe, Jr., Barnhart, O’Quinn & Williams, Steven D. Barnhart, for appellees.

Heard’s argument that Webster does not apply in this instance because the employee in Webster suffered a bruise on her shoulder and Heard did not, is unpersuasive. Heard testified that her shoulders “snapped” when Sullivan pushed her. The employee in Webster said she was bruised. Id. at 5. This is a distinction without a difference. Accordingly, Heard’s tort claims for assault and battery and intentional infliction of emotional distress are barred by the exclusive remedy provision of the Act, and the trial court correctly granted summary judgment to Mitchell’s.

2. In addition, Heard has not come forward with any evidence sufficient to create an issue of fact on her claim of negligent supervision or training. As she correctly states in her brief, in order to support this claim, she must come forward with evidence that the employer knew or should have known of the employee’s violent or criminal propensities. Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876, 878 (429 SE2d 264) (1993). Heard’s only evidence in support of this claim is Sullivan’s deposition statement in which he admitted that he had thrown things such as pens, pads or pencils on the counter when he was upset. She also claims Thomas Blose, the store manager, told her that “Everyone knows how John panics and so forth when he is working. That’s why we all stay clear of him.” This statement is hearsay, and even if it were admissible, it does not show any violent propensity. Blose himself testified that he never had any problems with Sullivan and considered him to be a good assistant manager. Moreover, Heard admitted that she knew of no other similar altercations between Sullivan and a co-worker. Accordingly, the trial court correctly granted summary judgment on this claim.

Judgment affirmed.

Eldridge and Ellington, JJ, concur.


text:
    A01A0107.
    HIGHTOWER v. THE STATE.
    (548 SE2d 473)
   Miller, Judge.

A jury found David Hightower guilty of failure to maintain lane, trafficking in cocaine, and violating the Georgia Controlled Substances Act by possessing cocaine with the intent to distribute. He appeals his convictions, contending that the trial court erred in denying his motion to suppress evidence of the contraband and paraphernalia found in his automobile and in admitting a videotape of the arrest at trial.

In reviewing the grant or denial of motions to suppress or motions in limine, we construe the evidence to uphold the trial court’s findings and judgment. So construed, the evidence shows that after a police officer observed a Honda vehicle weave across the center turn line and the white dotted line, he stopped the automobile and activated the patrol car’s videocamera. Standing beside the Honda, the officer saw that the male passenger seated in the rear had a cup of beer. The officer also smelled alcohol on Hightower, who was driving the vehicle, and an alco-sensor test indicated the presence of alcohol on his breath. A check on Hightower’s license revealed that it was suspended.

Hightower consented to a search of the Honda, and the front female passenger and the back male passenger exited the automobile. Hightower then withdrew his consent, and the officer arrested him for DUI, driving on an invalid license, and open container. Another officer who had arrived as backup was standing near the Honda’s back door that had been left open. When he looked at the rear floorboard, the backup officer saw protruding from underneath the front passenger seat a plastic bag containing approximately 15.5 grams of a white powdery substance and retrieved it. The patrol officer informed Hightower that he was also arrested for possession of cocaine and placed him in the back of his patrol car. The two officers on the scene then searched the vehicle and further discovered two crack cocaine rocks and cocaine-related production and distribution paraphernalia.

The patrol officer testified that because of the “sizable amount of cocaine” and a possible seizure of the Honda, he called for the narcotics unit. Assistance arrived, and the narcotics officers conducted an inventory search of the vehicle. They found additional cocaine and related paraphernalia throughout the vehicle, including sandwich bags, Epson salts, and a sifter with residue on it.

The female passenger had suspected cocaine underneath her fingernails, and her purse contained a dollar bill with traces of suspected cocaine. And the male passenger’s pants pocket contained suspected crack cocaine.

After officers later removed Hightower from the patrol car, there were 37 small plastic bags, each containing suspected crack cocaine, that weighed a total of approximately 17.7 grams on the backseat of the officer’s patrol car. The bags had not been there before High-tower’s arrest. A forensic chemist tested all suspected substances and found that they tested positive for cocaine.

1. On appeal, Hightower contends that the trial court erred in denying his motion to suppress evidence of the contraband and in playing the videotape of the arrest at trial. Hightower, however, waived contesting admission of the evidence when his attorney affirmatively stated that she had “no objection” when the State tendered the videotape and most of the items of evidence at trial. Those few items counsel did object to were objected to on grounds different from those asserted on appeal. Thus, we do not review the new grounds asserted on appeal.

2. Even if we considered the merits, the record shows that after a hearing the trial court found that the officer lawfully stopped High-tower for failure to maintain his lane, that Hightower initially consented to a search of the Honda, and that although Hightower later withdrew his consent, the backup officer saw the contraband in plain view. Hightower argues that the contraband was not in plain view, but we must accept the trial judge’s factual and credibility determinations made after the suppression hearing unless such determinations are clearly erroneous. Here, the officer’s testimony and the videotape support the trial court’s findings, and thus the findings are not clearly erroneous.

Hightower also argues that the impoundment was not reasonable, claiming that a person was present, authorized, and capable of safely removing the vehicle. As found by the trial court, the officers’ initial search followed the “plain view” finding of the 15 grams of cocaine and was a search incident to a lawful arrest, which they were clearly authorized to do. The impoundment and subsequent inventory search were also valid, since the vehicle at that point was subject to possible seizure as property used to facilitate illegal drug distribution.

Decided May 7, 2001.

David C. Butler, for appellant.

Patrick H. Head, District Attorney, Maria B. Golick, Thomas A. Cole, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Leming v. State, 235 Ga. App. 710, 711 (1) (510 SE2d 364) (1998).

       Ultimately, the officer did not charge Hightower with DUI, and the trial court entered a nolle prosequi to the charges of driving without a license and possession of an open container.

        Dyer v. State, 233 Ga. App. 770, 771 (505 SE2d 71) (1998) (affirmatively stating there is no objection waives issue previously contested in motion to suppress).

        Williams v. State, 234 Ga. App. 191, 195 (6) (506 SE2d 237) (1998).

        Tate, supra, 264 Ga. at 54 (1); Leming, supra, 235 Ga. App. at 711 (1).

        Polke v. State, 241 Ga. App. 891, 893 (2) (528 SE2d 537) (2000); see Vega v. State, 236 Ga. App. 319, 320 (512 SE2d 65) (1999); State v. Haddock, 235 Ga. App. 726, 728 (1), n. 2 (510 SE2d 561) (1998).

       See OCGA § 16-13-49 (d) (2); Bettis v. State ofGa., 228 Ga. App. 120, 121-122 (1) (491 SE2d 155) (1997).


text:
    A01A0126.
    NOBEL LODGING, INC. et al. v. HOLIDAY HOSPITALITY FRANCHISING, INC.
    (548 SE2d 481)
   Miller, Judge.

Nobel Lodging, Inc. and Holiday Inns Franchising, Inc. entered into a licensing agreement allowing Nobel to use Holiday’s motel system at an inn near Daytona Beach, Florida. Nobel’s six shareholders personally guaranteed its obligations of payment and performance under the license agreement. Nobel failed to improve the inn’s physical facilities as promised in the license agreement, which default it did not cure despite demands from Holiday. Some months after Holiday terminated the agreement, Holiday notified the guarantors of the default and termination and demanded payment of monies due under the termination provisions of the agreement.

When the guarantors did not pay, Holiday filed the present suit against them and Nobel to recover. The guarantors denied liability, claiming that they had not been timely notified of Nobel’s default, which notice they argued was a condition precedent to the guaranty obligations. They maintained that since notice did not come until after termination, they had no opportunity to cure the default and thus were not liable on the guaranty. They also filed an inarticulate and conclusory counterclaim, alleging that various unconnected sharp business tactics by Holiday entitled them to an unspecified recovery.

Holiday moved for summary judgment in its favor on the complaint and on the counterclaim, and the guarantors cross-moved for summary judgment in their favor on the complaint. The trial court entered summary judgment in favor of Holiday on its complaint and on defendants’ counterclaim. The issues on appeal are (1) whether the language of the guaranty agreement conditioned the guaranty obligation on timely notice to the guarantors with an opportunity to cure any defaults, and (2) whether any disputed facts precluded summary judgment on the counterclaim. We hold that the guaranty contained no such condition precedent and that no disputed facts precluded summary judgment on the counterclaim. Thus, we affirm.

1. The guaranty agreement does not require notice to the guarantors nor posit any conditions precedent to trigger the guaranty obligations. The pertinent language reads:

[T]he undersigned, jointly and severally, hereby . . . guarantee that all of Licensee’s obligations under the above License, including any amendments thereto whenever made (the “License”), will be punctually paid and performed. Upon default by the Licensee and notice from Licensor, the undersigned will immediately make each payment and perform each obligation required of Licensee under the License. . . . The undersigned waive notice of amendment of the License and notice of demand for payment or performance by Licensee.

“[T]he construction of a contract is a question of law for the court based on the intent of the parties as set forth in the contract. . . .” Reviewing this question of law de novo, we apply three steps to construe the contract. We must first decide whether the contract language is ambiguous; if it is ambiguous, we must then follow the applicable rules of construction found in OCGA § 13-2-2; and if after doing so we determine that an ambiguity still remains, we remand the matter to allow a jury to resolve the ambiguity.

Application of the first step provides the answer. The plain language of the guaranty is unambiguous. The individuals guarantee, without qualification, that all of Nobel’s obligations under the license agreement will be punctually paid and performed. The guaranty does not expressly require notice of default to the guarantors nor provide them with an opportunity to cure. Rather, the guarantors expressly waived any notice of demand for payment or performance by Nobel. The guaranty is unconditional.

The guarantors contend that the first sentence of the second paragraph creates a condition. This sentence provides: “Upon default by the Licensee and notice from Licensor, the undersigned will immediately make each payment and perform each obligation required of Licensee under the License.” They argue that this sentence requires notice of default with an opportunity to cure before the guaranty obligations are triggered. The guarantors misread the document. Rather than setting up a condition precedent to the general guaranty obligation, this sentence simply adds a specific guaranty obligation onto the guarantors’ shoulders. “Upon default by the Licensee and notice from Licensor,” i.e., in the event Nobel defaults and Holiday so notifies the guarantors, then the guarantors become themselves obligated to “immediately” make the payments and perform the obligations of Nobel under the license agreement. If such an event does not happen, i.e., if Holiday fails to notify the guarantors, then this specific “immediacy” requirement of personally and actually performing Nobel’s obligations is not triggered. Rather, in that event the guarantors simply remain liable under the general guaranty obligation for Nobel’s failure to punctually meet its payment and performance obligations set forth in the license agreement.

The guarantors’ attempt to introduce parol evidence to justify a different interpretation of the guaranty obligation is ineffectual. “Parol contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument.”

2. The guarantors contend that the trial court erred in failing to directly address, in its summary judgment order, their cross-motion for summary judgment on Holiday’s complaint. The trial court plainly denied that motion, as it expressly entered summary judgment in favor of Holiday on its complaint. Its failure to specify a cross-motion as denied is hardly grounds to reverse a final judgment resolving all claims in favor of Holiday.

3. In their final enumeration of error, the defendants contend that because certain material facts were disputed, the trial court erred in granting summary judgment in favor of Holiday on their counterclaim. To support this enumeration, the defendants in a hodgepodge manner give a laundry list of 33 unconnected facts which they claim are disputed. Defendants fail to argue in any cogent manner how these facts tie into any cognizable theories of recovery under Georgia law or under their ill-defined counterclaim.

Defendants are represented by counsel, and we are not inclined nor obligated to cull the record and the law to determine if an unconnected assortment of facts would allow defendants to pursue some sort of claim against Holiday to a jury trial. The most we can glean from the conclusory terse statements in the defendants’ counterclaim is that defendants may be intending to pursue a claim against Holiday for breaching the implied covenant of good faith and fair dealing under the license agreement (arising out of the termination of the agreement) and a claim against Holiday for Holiday intentionally and maliciously interfering with an attempt by Nobel to sell the Holiday franchise to a third party. Neither of these tenuously stated claims is supported by the undisputed facts.

Regarding the “good faith and fair dealing” claim, it is undisputed that Nobel failed to meet its obligations to perform certain physical improvements on the inn as required by the license agreement, despite timely demands and notices from Holiday. Accordingly, Holiday had an express contract right to terminate the agreement. “There can be no breach of. an implied covenant of good faith where a party to a contract has done what the provisions of the contract expressly give him the right to do.”

A tortious interference claim requires a showing that the defendant, acting improperly, without privilege, purposely and with the malicious intent to injure, induced a third party not to enter into or continue a business relationship with the plaintiff, resulting in the plaintiff suffering financial injury. Here Holiday simply refused to consent to the transfer of the franchise to the third party. As the license agreement allowed Holiday this right, Holiday certainly was acting properly and within its contractual privilege. “The exercise of an absolute legal right is not and cannot be considered an interference with a contractual or potential contractual relationship.” Moreover, Holiday as the franchisor was not a stranger to either the proposed contract or its underlying business relationship, in which Nobel intended to sell the franchise to a third party, and thus Holiday could not be held for tortious interference with such. “[A]ll parties to an interwoven contractual arrangement are not liable for tortious interference with any of the contracts or business relationships. [Cit.]”

The court did not err in granting Holiday summary judgment on defendants’ counterclaim.

Decided May 7, 2001.

Mark B. McManus, for appellants.

Mayfield, Commander & McMenamy, W. Scott Mayfield, Eric J. Frisch, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       Holiday was subsequently renamed Holiday Hospitality Franchising, Inc.

       Holiday had dismissed one guarantor because of a bankruptcy stay.

       (Footnote omitted.) Deep Six v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000); see OCGA §§ 13-2-1; 13-2-3.

        Deep Six, supra, 246 Ga. App. at 73 (2).

        Travelers Ins. Co. v. Blahey, 180 Ga. App. 520 (349 SE2d 474) (1986); accord Deep Six, supra, 246 Ga. App. at 73 (2).

       OCGA § 24-6-1; see Choice Hotels Intl. v. Ocmulgee Fields, 222 Ga. App. 185, 186-187 (1) (474 SE2d 56) (1996).

        Automatic Sprinkler Corp. &c. v. Anderson, 243 Ga. 867, 868 (257 SE2d 283) (1979).

        Choice Hotels, supra, 222 Ga. App. at 188 (2).

       (Citation and punctuation omitted.) Sowell v. Blackman, 236 Ga. App. 705, 708 (1) (512 SE2d 713) (1999); accord Russell Corp. v. BancBoston Financial Corp., 209 Ga. App. 660, 663 (4) (434 SE2d 716) (1993).

        Atlanta Market Center Mgml. Co. v. McLane, 269 Ga. 604, 610 (2) (503 SE2d 278) (1998); accord Pruitt Corp. v. Strahley, 270 Ga. 430 (510 SE2d 821) (1999).

        Atlanta Market Center, supra, 269 Ga. at 610 (2).


author: Phipps, Judge.

text:
    A01A0375.
    KING INDUSTRIAL REALTY, INC. v. WORTHINGTON CUSTOM PLASTICS, INC.
    (549 SE2d 153)
   Phipps, Judge.

King Industrial Realty, Inc. sued Worthington Custom Plastics, Inc. for breach of an “exclusive right of sale” agreement covering commercial property owned by Worthington. King sought damages in the amount of the commission due under the agreement (Count 1), the fair value of the services it rendered in marketing the property (Count 2) and attorney fees and expenses under OCGA § 13-6-11 (Count 3). The trial court granted Worthington’s motion for partial summary judgment on Counts 1 and 3 of King’s complaint. King claims that the trial court improperly interpreted the language of the agreement and that it is entitled to proceed on all of its claims. Because we find that the trial court properly granted Worthington’s motion, we affirm.

On May 1, 1996, King and Worthington entered into a listing agreement whereby Worthington granted King the exclusive right to list and use its efforts to secure a purchaser for the subject property. The exclusive listing was to last for 180 days and thereafter, until revoked by ten days written notice by either party. The agreement provided that Worthington would pay a six percent commission to King for finding a purchaser. The commission was to be paid whether the purchaser was secured by King, Worthington or any other person.

On July 22,1996, Worthington sent a notice attempting to cancel the listing agreement, effective July 23, 1996. Worthington now concedes that the listing agreement did not expire until the end of the 180-day period, or October 27, 1996.

On July 24, 1996, Worthington leased the property to American Millwork for a period of three years. The lease gave American Millwork an option to purchase the property at any time during the lease term. On April 15, 1999, Worthington sold the property to American Millwork.

King argues that it is owed a commission on the sale because the purchaser was “secured” when the lease was signed during the term of the listing agreement even though the property was not actually sold until almost three years later.

Decided May 7, 2001.

Davidson & Fuller, Stephen P. Fuller, for appellant.

Jones, Day, Reavis & Pogue, Robert M. Martin, for appellee.

“Each contract by which one employs another to sell real estate must be construed according to its particular stipulations.” If the terms used are clear and unambiguous, they are to be construed according to their plain, ordinary and popular sense.

Based on the language of the exclusive listing agreement, we conclude that no commission is due. The agreement provided that King was to be paid a commission if a purchaser, not a lessee, was secured during the term of the listing agreement. The lease gave American Millwork the option to determine if and when it would purchase the property, and the actual purchase did not take place until almost two and one-half years after the listing agreement had expired. Thus, the trial court properly held that King was not entitled to a commission or to its attorney fees and expenses for pursuing this litigation.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Humphries & Jackson v. Smith, 5 Ga. App. 340, 343 (3) (63 SE 248) (1908).

        Goodman v. Frolik & Co., 233 Ga. App. 376, 377 (1) (504 SE2d 223) (1998).