text:
    A92A0327, A92A0355.
    ALW MARKETING CORPORATION et al. v. McKINNEY.
    (421 SE2d 565)
   Andrews, Judge.

ALW Marketing Corporation (ALW) and Massachusetts Indemnity & Life Insurance Company (MILICO) sued McKinney for alleged violation of restrictive covenants contained in three 1989 employment contracts, and sought injunctive and other relief to enforce the covenants. ALW and MILICO appeal from the trial court’s order granting McKinney’s motion for judgment on the pleadings, in which the trial court ruled that the covenants were void and unenforceable as a matter of law, and granted judgment in favor of McKinney on counts one, two and three of the complaint.

Identical direct and discretionary appeals from this order were filed in the Supreme Court. Both' appeals were granted and transferred to this Court as direct appeals under OCGA § 9-11-54 (b). We consider the identical enumerations of error in both of these appeals together.

1. In enumerations of error one and two, ALW and MILICO claim that judgment on the pleadings was improper because: (1) the trial court failed to accept allegations in the complaint regarding the covenants as true, and (2) the validity of the covenants cannot be determined from the pleadings alone, but depends on factual determinations beyond the face of the pleadings.

Whether a covenant in an employment contract which restricts or lessens competition is enforceable depends on its reasonableness in terms of the three-element test of time, territorial effect, and the business interests the employer seeks to protect. Watson v. Waffle House, 253 Ga. 671, 672 (324 SE2d 175) (1985). In reconciling concerns that the test provide clear guidelines to drafters, with concerns that a rigid application of the test may not give adequate weight to the factual settings in which a particular covenant may operate, the Supreme Court has determined that “both of these ends can best be served by retaining the three-element test of duration, territorial coverage, and scope of activity and utilizing it, not as an arbitrary rule but as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.” Id. at 673. For example, the Court in National Teen-Ager Co. v. Scarborough, 254 Ga. 467, 469 (330 SE2d 711) (1985), reaffirmed the rule that a non-competition covenant that prohibits the employee from working for a competitor “in any capacity, that is, a covenant which fails to specify with particularity the activities which the employee is prohibited from performing, is too broad and indefinite to be enforceable,” but in applying the rule found that “whether a given covenant falls into the prohibited ‘in any capacity’ category generally is not determinable solely from the face of the contract.” Accordingly, the Court reversed the grant of judgment on the pleadings because there was not a complete failure to state a cause of action on the face of the pleadings. Id. at 469.

Nevertheless, the question of reasonableness remains one of law based on the wording of the covenant, and if after taking the well-pleaded allegations of the complaint as true, it appears that a covenant is void on its face such that no additional facts could save it, judgment on the pleadings in favor of the defendant is appropriate. Koger Properties v. Adams-Cates Co., 247 Ga. 68, 69 (274 SE2d 329) (1981) (territorial restriction in non-competition covenant too indefinite on its face to be enforced); compare Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 139 (287 SE2d 546) (1982) (factual setting sometimes necessary to determine if territorial restriction, not void on its face, is reasonable); Colquitt v. Network Rental, 195 Ga. App. 244, 246 (393 SE2d 28) (1990) (if non-competition restriction is not void on its face, reasonableness is tested in light of the factual setting).

Here, the complaint attaches and incorporates by reference three lengthy employment agreements signed by McKinney which all contain virtually the same restrictive covenants. See OCGA § 9-11-10 (c). The complaint and attached agreements set forth in detail the system by which ALW sells MILICO insurance policies through a network of independent contractor agents. The ALW system described in the pleadings and agreements was succinctly summarized in a case dealing with the same marketing system in the context of similar issues: “MILICO insurance is sold through a pyramid-type marketing plan by which Williams’ agents both sell and recruit others to sell insurance. Agents, most of whom work part-time, earn commissions from personal sales and the sales of each agent they recruit. The sales force is organized according to a hierarchy by which ‘up-line’ agents supervise and train the lower level agents they have recruited. Up-line agents are successful sales agents who have become in ascending order, regional vice-presidents (‘RVP’), senior vice-presidents (‘SVP’) and national sales directors (‘NSD’). Up-line agents are not part of Williams’ corporate structure. Rather, their titles are rewards for success. Each up-line agent works full-time and oversees the work of each down-line agent in his or her chain. A new agent is placed in a specific RVP’s hierarchy and is trained by the RVP at the RVP’s expense. RVPs earn commissions from insurance sales made by each agent in his or her hierarchy.” A. L. Williams & Assoc. v. Stelk, 960 F2d 942, 943-944 (11th Cir. 1992).

An agent recruited enters into an independent contractor agreement with ALW (“My Agreement with ALW Marketing Corporation”), and upon obtaining a license to sell insurance enters into a life insurance agreement with MILICO (“MILICO Agent Agreement”). Agents who become RVPs sign another agreement (“Agreement for Independent Business of Regional Vice President”). McKinney was a party to all three of these agreements. When McKinney left the ALW sales force in February 1991, to work with another insurance agency he held the position of RVP with approximately 30 agents down-line in his sales hierarchy. The agents in the sales force are not restricted to any particular territory, and market their products in 49 states, the District of Columbia, Canada, and elsewhere. The complaint further alleges in counts one, two and three that McKinney violated the provisions of the restrictive covenants, causing damage to ALW and MILICO.

“After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. OCGA § 9-11-12 (c). For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not admitted. Judgment on the pleadings may be granted only if, on the facts so admitted, the moving party is clearly entitled to judgment.” (Punctuation and citations omitted.) Abacus, Inc. v. Hebron Baptist Church, Inc., 201 Ga. App. 376 (411 SE2d 113) (1991); Christner v. Eason, 146 Ga. App. 139-140 (245 SE2d 489) (1978). Taking the allegations of the complaint as true, we conclude for the reasons stated in Division 2 that the restrictive covenants at issue are void on their face, that no additional facts could render them valid, and judgment on the pleadings in favor of McKinney was proper.

2. In the third claim of error ALW and MILICO contend that the trial court erred by finding under substantive law that the covenants were void and unenforceable. ALW and MILICO rely on the restrictive covenants contained in Section 11 of the 1989 “Agreement for Independent Business of Regional Vice President” entered into by McKinney as a Regional Vice President (RVP). The Agreement contains three types of restrictive covenants.

Sections (G.) and (H.) of the Agreement are essentially non-solicitation covenants. Section (G.) prohibits McKinney, during the term of the agreement and for a period of three years after termination of the Agreement, from inducing certain MILICO policyholders to terminate, reduce or replace their coverage on policies to which McKinney was entitled to earn a commission. The application of the covenant was subject to the following territorial restriction: “[T]hose who reside, at the time of the inducement or attempted inducement, in the geographical area within 50 miles of any office of RVP or any office of any member of RVP’s Sales Hierarchy which office had been the office of RVP or a member of RVP’s Sales Hierarchy at any time during the three (3) year period preceding termination of this Agreement if RVP’s Sales Hierarchy utilized such office for at least a ninety (90) day period.”

“Although a covenant prohibiting solicitation of the employer’s customers is less restrictive than a covenant prohibiting competition, both must specify the territory in which the employee is to be foreclosed. A covenant prohibiting solicitation which does not specify the territory is unenforceable.” Guffey v. Shelnut & Assoc., 247 Ga. 667, 670 (278 SE2d 371) (1981). The present territorial restriction is too indefinite on its face to be enforceable because it contains no specific territory ascertainable at the time the agreement was entered. Orkin Exterminating Co. v. Pelfrey, 237 Ga. 284, 285 (227 SE2d 251) (1976). Every agent recruited by McKinney or recruited by ah agent down-line from McKinney in his chain is a potential expansion of the territory. Moreover, the MILICO policies are currently sold nationwide and in Canada and the agents are not restricted to any particular territory. Given these facts, the territorial restriction as written, amounts to a present obligation or promise as to unknown future territories. Roger, supra at 68-69 (indefinite restriction is void on its face because employee unable to forecast with certainty the territorial extent of the duty owed); compare Orkin Exterminating Co. v. Walker, 251 Ga. 536, 537 (307 SE2d 914) (1983) (territorial restriction valid because it contained no present obligation as to future unknown territories).

Additionally, Section (G.) contains a provision modifying the three-year limitation period, which provides: “The running of the post-termination three-year period shall be tolled and suspended while RVP is in violation of this covenant.” This tolling provision potentially extends the duration of the covenant without limit and renders it unreasonable and unenforceable on its face. Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 188 (236 SE2d 265) (1977); Walker, supra at 538.

ALW argues that Section (H.) is not a restrictive covenant because it does not explicitly prohibit McKinney from doing anything. This section provides that any attempt by McKinney to induce a MILICO policyholder to reduce, terminate or replace a policy of insurance will constitute unauthorized interference with the contractual rights of ALW. Regardless of the terms in which Section (H.) is couched, it is a non-solicitation covenant in effect. Club Properties v. Atlanta Offices-Perimeter, 180 Ga. App. 352, 353 (348 SE2d 919) (1986). Section (H.) contains no geographical or time limits, and is void on its face. Fuller v. Kolb, 238 Ga. 602, 603 (234 SE2d 517) (1977); Schultz, supra at 188.

Sections (I.) and (J.) comprise a non-recruitment covenant which prohibits McKinney, for a period of two years, from recruiting ALW employees. Section (K.) is a non-disclosure covenant which prohibits McKinney, for a period of four years, from using, disseminating or revealing certain confidential information or trade secrets. We need not address these covenants beyond stating that both contain the same tolling provision providing that the two and four-year duration periods are tolled and suspended while McKinney is in violation of the covenant. Since this clause effectively extends in perpetuity the potential duration of the covenants, it renders both unreasonable and unenforceable on their face. Club Properties, supra at 355 (non-recruitment covenant unenforceable for lack of reasonable time limit); U3S Corp. v. Parker, 202 Ga. App. 374, 378 (414 SE2d 513) (1991) (non-disclosure clause without reasonable time limitation is unenforceable).

The trial court correctly concluded that the covenants were void, and that McKinney was entitled to judgment on the pleadings as to counts one, two and three of the complaint, which alleged breach of the covenants.

Judgment affirmed in Case Nos. A92A0327 and A92A0355.

Birdsong, P. J., and Beasley, J., concur.

Decided July 9, 1992

Reconsideration denied July 27, 1992

King & Spalding, Frank C. Jones, Michael E. Ross, Leticia D. Alfonso, for appellants.

Rogers & Hardin, C. B. Rogers, Peter W. Schneider, Liane A. Schleifer, Glover & Davis, J. Littleton Glover, Hull, Towill, Norman & Barrett, Patrick J. Rice, for appellee.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A92A0555.
    RIVERGATE CORPORATION v. McINTOSH.
    (421 SE2d 737)
   Andrews, Judge.

On March 9, 1986, Plaintiff. J. W. McIntosh went to Sandy Springs Toyota and found a truck in which he was interested, which he discussed with a salesman. The salesman and McIntosh discussed both purchasing and lease arrangements on the vehicle and the parties dispute which arrangement McIntosh agreed to.

In any case, McIntosh signed a document entitled “Closed End Vehicle Lease Agreement and Disclosure Statement,” which clearly states that the truck would be leased to him. McIntosh admits that he never read that document.

The record contains two depositions of McIntosh and an affidavit. His testimony regarding reading the lease documents is as follows:

“Q: Did you read it before you signed it?

“A: I did not. I had an agreement with Mr. Mealey, and I thoroughly at that time trusted him, thought he was trustworthy, and I thought he was going to — I didn’t know, I didn’t even know anything about a lease. A lease was never mentioned.

“Q: You then did not know that you were signing what?

“A: A lease. I thought it was [sic] I was signing a sales agreement, and I waited for several days before I contacted him before I ever, before I ever looked at that. When I looked at that, that’s when I called him and went back out there to try to get him to straighten it out.

“Q: So until you looked at this document sometime after the delivery of the vehicle, you didn’t know you’d entered into a lease?

“A: I did not, I did not.”

Further testimony was:

“Q: Why didn’t you read it when you signed it?

“A: I’ve asked myself that question a thousand times. If I’d have read it when I signed it, I never would have had that boy follow me home and gave him $5,000. I’d have told him no deal right there, because I would have went for nothing like this. He was supposed to be financing the deal at ten and a half percent.

“Q: So if you had looked at it, read it, you would have seen that it was a lease, right?

“A: Right.

“Q: And you wouldn’t have entered into it?

“A: Never.

“Q: And you wouldn’t have made any $5,000 down payment? “A: No.”

Further testimony was:

“Q: So, basically your contention in this suit is that you were deceived into entering into a lease agreement?

“A: That’s right.

“Q: That you didn’t intend to enter into it?

“A: Absolutely had no intention of entering into a lease agreement.

“Q: It’s embarrassing to you, isn’t it?

“A: It is, absolutely.

“Q: Because you know you could have prevented it if you had just read the lease.

“A: If I had just read the lease.”

Although McIntosh claimed the finance office was too dark for him to be able to read the documents, he admitted that no one prevented him from examining the documents, and that no one prevented him from taking the documents away from the office if he had wanted to. McIntosh admitted that his son, who accompanied him, did not attempt to examine the document either.

After signing the lease agreement, the salesman followed McIntosh to his home to collect the down payment. It is undisputed that McIntosh paid $5,000 to the salesman. Although he did not receive a receipt for it on that date, he received a receipt months later at the request of his attorney. The lease documents state “N.A.” beside the space allowed for “Down Payment” and “N.A.” beside the space for “Capitalized Cost Reduction.” Nonetheless, there is no clear evidence that McIntosh’s payment was not figured into the lease agreement. At his deposition, McIntosh conceded that he was not sure of the final purchase price of the vehicle and that the salesman stated that the price was “almost $16,000.” McIntosh stated: “so I based it on $16,000 and I figured $16,000 less the $5,000 I was going to pay him down less the $2,950 he allowed me. . . .” He continued: “I thought he was just financing the balance. I’d have been an absolute fool to obligate myself for $11,000 and 48 notes at $234.56, which amounts to over $11,000 and $5,500 more to buy the truck back after it was paid for.” McIntosh was then asked: “But that’s what you did, isn’t it?” He answered: “That’s what I did.”

Despite this testimony, in an affidavit which was prepared almost three years after his November 1987 deposition, which was to be used in opposition to defendant’s motion for summary judgment, McIntosh was more specific. In that document, he swore that the salesman told him that with his down payment, value for trade-in, and the demonstrator discount “Sandy Springs Toyota would finance the balance of approximately $8,050 plus tax at 10 and 1/2 percent.” He further swore in his affidavit that he confirmed with the salesman that “the cost of the truck would be approximately $13,050 plus tax. I also confirmed with Mr. Mealey that, once he received the down payment of $5,000, the balance due would be approximately $8,050 plus tax.”

About one month after this transaction, McIntosh reviewed the documents for the first time and noticed that he had leased and not bought the truck. Nevertheless, over the next four years, he made 48 monthly payments to “Omni World Leasing” pursuant to the lease agreement and then paid the residual amount of $5,508 to obtain title to the truck.

On June 22, 1987, McIntosh filed his action for common law fraud and violation of the Fair Business Practices Act (“FBPA”). He dismissed that case without prejudice and refiled the instant action in October 1989, again alleging violation of the Fair Business Practices Act and common law fraud. In the pretrial order McIntosh also claimed breach of contract.

Sandy Springs Toyota filed a motion for summary judgment which was denied. Based on that denial, it filed an application for interlocutory review which we granted.

Sandy Springs claims that the trial court erred in denying its motion for summary judgment in six ways. Pretermitting the issues of whether McIntosh was barred from claiming fraud based on affirmance on the contract, and issues regarding whether McIntosh complied with the procedural requirements for filing an action under OCGA § 10-1-399 et seq., we find that the trial court improperly denied the motion for summary judgment since the undisputed facts established that McIntosh did not read the contract he signed and that his claims are barred since, as a matter of law, there was no reasonable reliance.

Basically McIntosh’s suit rests on his claim that he did not receive credit for the $5,000 down payment, and his contention that he was misled into signing the lease documents either through promises that the documents would be redrafted to reflect a purchase and down payment, or through the salesman’s misrepresentations that the documents he had signed were sales documents.

In holding that summary judgment regarding the plaintiffs FBPA claim was proper, the court in Castellana v. Conyers Toyota, 200 Ga. App. 161, 164 (2) (407 SE2d 64) (1991), stated:

“It is general contract law in Georgia that parties are free to contract about any subject matter, on any terms, unless prohibited by statute or public policy, and injury to the public interest clearly appears. There being no such prohibition, these contracts are enforceable.

“Fraud which constitutes a ground for voiding the contract under OCGA § 13-5-5, must be fraud which induced the parties to enter the contract. . . . [I]n the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations. . . . Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations. . . .

“A prerequisite to stating a claim for relief under the Fair Business Practices Act is the commission of some unfair act or deceptive practice, from which the Act is designed to protect the public. OCGA § 10-1-391 (a). In the absence of a confidential relationship a party may not rely and act on the misrepresentations of an opposite party as to the contents of a written instrument where the party signing can read and where no artifice or fraud is practiced which prevents the party signing from reading the instrument. Having failed to establish any unfair or deceptive practice by [Sandy Springs Toyota], the purchaser’s claim under the FBPA is likewise foreclosed.

“The construction of a contract is a matter of law for the court under OCGA § 13-2-1, particularly where, as here, the terms are unambiguous. It is thus a matter peculiarly well suited for adjudication by summary judgment, which in this case was proper.” (Punctuation and citations omitted.) Castellana, supra at 164-165. See also Heidt v. Potamkin Chrysler-Plymouth, 181 Ga. App. 903, 904 (354 SE2d 440) (1987); Credithrift of America v. Whitley, 190 Ga. App. 833 (380 SE2d 489) (1989). Our inquiry into the element of reliance is the same with respect to McIntosh’s common law claims. See generally Hubert v. Beale Roofing, 158 Ga. App. 145 (279 SE2d 336) (1981).

The lease agreement here was clearly labeled a “lease agreement” for the lease term of 48 months. The document was signed next to the space labeled “lessee,” and initialed by McIntosh. Throughout the document the fact that ownership of the vehicle remained with Sandy Springs Toyota is apparent. As McIntosh himself admits, if he had read the document, he would have understood that the transaction was for the lease of the vehicle, not for a sale. Thus, both McIntosh’s fraud and FBPA claims based on allegations that he was misled by the salesman with regard to the nature of the transaction are without merit.

Further, McIntosh’s claims regarding the down payment amount are without merit. First, despite the fact that McIntosh thought that the documents would be “reworked” to reflect his payment, there is no indication from the documents themselves that this was the case. In fact, the lease agreement contains a clause which states: “This lease contains the entire agreement between you and us. There are no other agreements between you and us except those included in writing in this Lease. No change or other agreement will be binding unless in writing and signed by you and us.” Further, by his own admission, McIntosh concedes that he did not find out the price of the vehicle on the date that he signed the lease agreement and that he “assumed” the $5,000 would bring the total cost of the automobile down by that amount. His more specific affidavit which claims that the $5,000 payment was not calculated into the lease agreement and states explicit figures, being contradictory testimony, which contains no explanation of the inconsistency, will be construed against him. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986); Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428 (2) (408 SE2d 443) (1991).

Decided July 8, 1992

Reconsideration denied July 27, 1992

Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Alfred A. Quillian, Jr., for appellant.

Fortson & White, John A. Howard, for appellee.

“[T]he alleged misrepresentation in the case sub judice does not relate to the underlying quality or attributes of any product that appellee sold, which misrepresentation a prospective purchaser might, even in the exercise of proper diligence, fail to discover. [Cits.] Instead, the alleged misrepresentation deals with the underlying terms of the transaction which were specifically addressed in the signed documents evincing the transaction. The alleged misrepresentation is contrary to the express terms of those written documents.” Heidt, supra at 904; compare Haralson v. Pope Chevrolet, 180 Ga. App. 650 (3) (350 SE2d 255) (1986). The payments which McIntosh owed were clearly delineated under the agreement he signed and his claim that the down payment represented a subsequent agreement is without merit. There was no evidence in the record before us to constitute fraud or to constitute a violation of the FBPA. Accordingly, it was error to deny the motion for summary judgment.

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0663.
    ALW MARKETING CORPORATION et al. v. HILL.
    (422 SE2d 9)
   Birdsong, Presiding Judge.

ALW Marketing Corporation (ALW) and Massachusetts Indemnity & Life Insurance Company (MILICO) appeal the grant of Joe D. Hill’s motion to dismiss all counts of appellants’ complaint against Hill for breach of certain covenants in an employment contract for violation of the Georgia Trade Secrets Act, OCGA § 10-1-760 et seq., the Uniform Deceptive Trade Practices Act, OCGA § 10-1-371 et seq., and for common law unfair competition, for unjust enrichment, and for conversion.

Hill formerly was a Regional Vice President (RVP) of ALW, which is a sales force of independent contractor agents for the sale of MILICO term life insurance. In connection with his employment, Hill was required to execute three “agreements” spanning 80 pages or more, including supporting or appended documents and certifications of other agents as to the rather complex ALW “hierarchy.” However, of these numerous agreements, appellants rely upon only one of them, the “A. L. Williams Agreement for Independent Business of Regional Vice President.”

As RVP, Hill supervised and monitored four “down-line” agents and received an overriding commission on all policies sold by these lower level agents. On November 8, 1990, Hill became associated with another insurance agency. Appellants ALW and MILICO alleged Hill retained and used trade secrets and other confidential information acquired from appellants during his association with them, including policy cards, lists of actual or potential policyholders and lists of other members of the ALW sales force; that he gained a great competitive advantage over appellants from this knowledge and use of plaintiffs’ trade secrets and confidential information; that he induced or attempted to induce policyholders to terminate or replace their MILICO insurance policies with policies of his new employer or principal; that he pirated or attempted to pirate members of appellants’ sales force and induced some to breach their agreements with appellants; that as a result of all these acts by Hill, appellants suffered loss of goodwill and other irreparable harm to their business; that Hill traded unfairly on appellants’ goodwill and reputation; that he was unjustly enriched at appellants’ expense by replacing MILICO policies and pirating sales agents; and that he converted to his own use appellants’ contractual relations and property rights in proprietary information including customer lists.

Enumerations 1-3 concern the dismissal of appellants’ complaint as to the covenants alleged violated: a non-replacement covenant, a non-pirating covenant, and a non-disclosure covenant. First, appellants assert that the parties’ agreement stipulates that the covenants are reasonable as to Hill, and the trial court was required to accept this and all other allegations in the complaint as true, with all doubts to be resolved in appellants’ favor even though unfavorable constructions are possible, according to the law on motions to dismiss (see Morgan v. Ga. Vitrified Brick &c. Co., 196 Ga. App. 779, 780 (397 SE2d 49)). Second, appellants assert that the trial court could not dispose of the complaint on the basis of the pleadings per OCGA § 9-11-12 as to a motion to dismiss, because it could not determine the validity of post-employment restrictive covenants except by examining the reasonableness of each covenant in “ ‘the particular factual setting to which it is applied,’ ” (emphasis deleted) per National Teen-Ager Co. v. Scarborough, 254 Ga. 467, 469 (330 SE2d 711). Third, appellants assert that the substantive law on restrictive covenants would uphold the validity of these covenants in this case if appellants were allowed to develop the evidence beyond the pleadings. Appellants rely on the rule that a motion to dismiss may not be granted unless it appears to a certainty that the non-moving party would not be entitled to relief under any set of facts he could prove in support of his claim. Bourn v. Herring, 225 Ga. 67, 70 (166 SE2d 89). Held:

1. Appellee’s motion to dismiss the appeal is denied.

2. The trial court found that the covenants are overbroad and void as a restraint of trade because the RVP could not know under the agreement how long the covenants would last or when they begin. The trial court reasoned that the prohibition of activity as to each covenant is specified to be “at any time during the term of this agreement”; and the “term” of the agreement depends upon the “effective date,” which is described as “such date as MILICO may designate in a bulletin distributed by it to Agents. . . . Such designation shall be binding upon RVP regardless of whether RVP has or receives actual notice.” The trial court concluded that if no notice of a change in the effective date is required to be sent to the RVP, then the “term” can be triggered at any time without notice, which makes it impossible for the RVP to know under the agreement how long covenants will last or when they will start.

We agree with the trial court’s conclusion that this provision is uncertain and unreasonable and is a void restraint of trade. Moreover, we find that the prolixity and the uncertainty of the language of the non-replacement covenant, particularly, defeat the entire agreement, being such as to result in differing analyses as to its meaning and significance and such as to result in no very certain meaning in any case.

(a) The reference to a covenant taking effect “during the term of this agreement” appears only in the non-replacement covenant, and for a specified period of time “thereafter,” three years. The other two covenants do not state that they apply “during the term of this agreement,” but they apply to the “post-termination period” which is two years as to the anti-pirating covenant, and four years as to the nondisclosure covenant. According to the contract definition of “effective date,” all of the covenants are uncertain as to their “effectiveness.” The contract defines “term of the agreement” as follows: “The term of this agreement shall begin as of the later of (i) the effective date or (ii) the date of acceptance by the General Agent at its principal office and shall continue until this agreement is terminated in accordance with its terms, provided that this agreement shall remain in force for a period of at least thirty (30) days after date of acceptance by the General Agent. RVP’s right to conduct RVP’s business of Regional Vice President and all of RVP’s authority, privileges, and licenses pursuant to this agreement shall terminate upon termination of this agreement. This agreement shall automatically and without notice terminate upon the death of RVP or upon termination of RVP’s Trademark License Agreement with the General Agent.”

The trial court correctly concluded that the uncertainty as to the “term of the agreement” renders the non-replacement covenant void. The “term of the agreement” is not necessarily the period of RVP’s association with ALW and MILICO; it does not necessarily begin when the RVP began his association with ALW and MILICO, nor end when the association is terminated. It is a variable term, the meaning of which is not certain and not ascertainable at any given time. The “effective date” is uncertain depending on whether ALW issued a “bulletin” of which RVP did not have notice; therefore, the “term of the agreement” is uncertain, and the restriction on replacement of policies for “three years thereafter” is uncertain. The applicability of the non-replacement provision three years “thereafter” cannot be inferred to mean “after termination,” because it refers to “three years [after the term of the agreement],” which may depend upon an uncertain “effective date” of which the employee/agent may have no notice, or which may change without notice.

In this light, the period of each of the three covenants is uncertain, since they provide for restrictions during the two, three and four years “after termination of this agreement.” Since “termination of the agreement” is not necessarily the same thing as “termination of the RVP’s employment,” it cannot reasonably be determined by the employee or a court at any time whether, and to what extent, any of these provisions applies.

(b) Moreover, the trial court correctly concluded that at least the third contingency in the “non-replacement” covenant is overbroad and incapable of reasonable ascertainment. This provision would forbid replacement of policies to those who, in addition to the two other contingencies, “reside, at the time of the inducement or attempted inducement, in the geographical area within 50 miles of any office of RVP or any office of any member of RVP’s sales hierarchy which office had been the office of RVP or a member of RVP’s sales hierarchy at any time during the three (3) year period preceding termination of this agreement if RVP or any member of RVP’s sales hierarchy utilized such office for at least a ninety (90) day period.” As appellee Hill contends, it is possible that an agent may not know who is in his sales hierarchy at any given time and all times during three years preceding the uncertain “termination of this agreement.” Since the “termination of this agreement” cannot reasonably be ascertained, neither can the geographical restrictions be reasonably ascertained; and moreover, the provision does not give reasonable notice to the employee of its limitations during any given time. Fuller v. Kolb, 238 Ga. 602, 604 (234 SE2d 517).

(c) Each covenant relied upon by appellants provides: “The running of the post-termination [two-year, three-year, or four-year] period shall be tolled and suspended while RVP is in violation of this covenant.” Inasmuch as the “termination of the agreement” referred to in these covenants is not necessarily the same thing as the “termination of the RVP’s employment,” this “post-termination” period cannot be ascertained or determined at any time; and a provision that such undeterminable period is further tolled while the employee is in violation of the covenant, potentially extends the time of such a covenant perpetually. Such a restriction is overbroad and in restraint of trade. The duration of the applicable period of “violation” is potentially limitless. Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 188 (236 SE2d 265).

3. The assertion in appellants’ first enumeration of error is that the covenants are reasonable because Hill agreed that they were reasonable and reasonably necessary. Restrictive covenants in employment contracts are in partial restraint of trade and are enforceable “only if strictly limited in time and territorial effect and [are] otherwise reasonable. . . .” (Emphasis supplied.) Orkin Exterminating Co. v. Pelfrey, 237 Ga. 284, 285 (227 SE2d 251); see Guffey v. Shelnut & Assoc., 247 Ga. 667, 669 (278 SE2d 371). The question is not merely whether the covenants are reasonable or reasonably necessary, but whether they are enforceable at law. Hill’s agreement that the covenants are reasonable does not salvage what is inherently unreasonable, uncertain and unenforceable, as a matter of law to be reasonably determined by courts. See Orkin Exterminating Co. v. Pelfrey, supra. The covenants cannot be enforced at least for the reason that their period of application, which depends upon the “term of the agreement,” cannot reasonably and with certainty be ascertained, and the employee cannot with any degree of accuracy forecast the extent of the duty owed in terms of time (Durham v. Stand-By Labor of Ga., 230 Ga. 558, 562 (198 SE2d 145)) or territory. Nunn v. Orkin Exterminating Co., 256 Ga. 558 (350 SE2d 425).

4. Adjudged by appellants’ second enumeration of error, that the validity of the covenants must be determined in light of the factual circumstances in which they are applied (National Teen-Ager Co., supra), the covenants cannot be determined to be valid because the factual circumstances in which they are applied cannot reasonably be ascertained as to time, term or territory. Proof of additional facts will not affect the inherent variability and uncertainty of these covenants as to time and “term.” That is, they are not invalid merely because of a conceivable factual circumstance, but because it cannot be ascertained by the employee at any given time whether and to what extent they apply.

5. Appellants’ third enumeration of error, by which they assert that the controlling substantive law would uphold these covenants as reasonable, is without merit, for all the reasons stated heretofore.

The invalidity of these restrictive anti-competition covenants as found herein renders it unnecessary to examine them for additional defects, since these covenants are not severable. Richard P. Rita Personnel &c. Intl. v. Kot, 229 Ga. 314 (191 SE2d 79). The trial court did not err in granting appellee’s motion to dismiss on these counts.

6. As to appellants’ common law or statutory claims, these are not, as appellee contends, based merely on an “implied promise” by appellee which fails when the contract covenants fail. See Sapp v. Davids, 176 Ga. 265, 267-268 (168 SE 62), cited by appellee Hill. They are by nature independent of the contract covenants. The trial court failed to state the reasons for its dismissal of these statutory and common law claims, and it appears they are subject not to dismissal on these pleadings, but to proof of actual facts which might give rise to a claim for unfair competition, theft of trade secrets, and conversion of property. Under notice pleadings, the complaint is not required to set out facts upon which the action is based but is sufficient to withstand a motion to dismiss for failure to state a claim when the complaint puts the parties on notice as to the nature of the action in a short and plain statement of the claim. Dillingham v. Doctors Clinic, 236 Ga. 302 (223 SE2d 625); Davis & Shulman, Ga. Prac. & Proc. (6th ed.), § 9-5. No reason appears why the common law and statutory complaints should be dismissed on their face. Accordingly, the trial court erred in dismissing Counts IV-VIII.

Judgment affirmed in part and reversed in part.

Beasley and Andrews, JJ., concur.

On Motions for Reconsideration.

Appellants ALW Marketing Corporation et al. assert that we ignored the adjurations in Watson v. Waffle House, 253 Ga. 671 (324 SE2d 175) and National Teen-Ager Co. v. Scarborough, 254 Ga. 467 (330 SE2d 711), that the validity of a covenant not to compete must be determined by “examining the reasonableness of the particular factual setting to which it is applied.” Watson, supra at 673. Appellants in effect demand a full evidentiary hearing merely by having made the assertion that a covenant is “reasonable”; that is, merely because they filed a lawsuit to enforce it.

This is an assertion that a motion to dismiss or for judgment on the pleadings can never be granted in a case like this and that a plaintiff is always entitled to an evidentiary hearing, even if the covenant is so inherently illogical or self-contradictory or so intrinsically obtuse or indefinite that defendant would have been entitled to a judgment in a case involving any other type of contract. We do not think restrictive covenants, being by nature a restraint on trade, have been elevated to such status in Georgia.

The rule as to motions to dismiss is that a motion to dismiss may be granted if “ ‘the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.’ ” Union Camp Corp. v. Southern Bulk Indus., 193 Ga. App. 90 (386 SE2d 866); OCGA § 9-11-12 (b). The statement in National Teen-Ager Co. and Watson that on motion for judgment on the pleadings a court must accept as true an averment that a non-compete agreement is “reasonable” does not mean the covenant must be accepted as capable of clear ascertainment, definite, and reasonably enforceable. A provision may be reasonable as to “duration, territorial coverage, and scope of activity,” but may nevertheless be so flawed and indefinite that it cannot be enforced; these are separate matters. There is no mandate that compels a court to accept as “reasonable” what is inherently illogical or self-contradictory, or is too indefinite to even ascertain what it means or when it applies. Appellants are insisting on an illogical interpretation of the Supreme Court’s decisions, so as to litigate the “factual setting” of what cannot be ascertained as a matter of logic and what necessarily must be decided against them on legal grounds.

Secondly, appellants contend we are obligated to construe all allegations in their favor on a motion against them for judgment on the pleadings or to dismiss so that we are required to deny all such motions. Appellants make this assertion even in the face of a holding that the covenants at issue are inherently self-contradictory, indefinite and incapable of ascertainment. In this view a party could compose a set of restrictions which on its face is so cloudy as to be nonsense and so indefinite as to be plain vexation, and yet still demand an evidentiary hearing because they must be accepted as “reasonable.”

Decided July 9, 1992

Reconsiderations denied July 27, 1992

King & Spalding, Frank C. Jones, Michael E. Ross, Leticia D. Alfonso, for appellants.

Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Page, Scrantom, Harris & Chapman, William G. Scrantom, Jr., for appellee.

Appellee Hill’s motion for reconsideration reargues issues already decided and therefore is denied.

Motions for reconsideration denied.


author: McMurray, Presiding Judge.

text:
    A92A0792.
    MARTIN v. THE STATE.
    (422 SE2d 6)
   McMurray, Presiding Judge.

Defendant was convicted of possession of cocaine with intent to distribute and sentenced to life in prison pursuant to OCGA § 16-13-30 (d). Defendant was not given the possibility of parole because of his status as a repeat offender under OCGA § 17-10-7 (b). This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in sentencing him without the possibility of parole under OCGA § 17-10-7 (b). This enumeration presents nothing for review as “defendant lacks standing to contest the statute until such time as he claims a right of parole and the statute is asserted against him as a bar. Green v. State, 244 Ga. 755 (262 SE2d 68).” Yearby v. State, 195 Ga. App. 757 (1) (395 SE2d 29).

2. Defendant contends the trial court erred in sentencing him as a repeat offender under OCGA § 17-10-7 (b), arguing the State did not give fair notice of its intention to use prior convictions in aggravation of punishment. This contention is without merit. Defendant was served more than a week before trial with notice of the State’s intention to use six prior felony convictions in aggravation of punishment pursuant to OCGA § 17-10-7 (b). Anderson v. State, 199 Ga. App. 559, 560 (3) (405 SE2d 558).

3. Defendant contends the mandatory life sentence requirement of OCGA § 16-13-30 (d) violates the constitutional prohibition against cruel and unusual punishment. This contention is without merit for the reasons stated in Rucks v. State, 201 Ga. App. 142, 144 (2) (410 SE2d 206).

Decided July 7, 1992

Reconsideration denied July 27, 1992

Hallman & Associates, D. Jay Stewart, for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

4. Defendant contends OCGA § 16-13-30 (b) violates the due process clause of the state and federal constitutions, arguing that the statute is vague and overly broad. However, defendant fails to show that this constitutional challenge was raised in the trial court. Consequently, this enumeration presents nothing for review. Mack v. State, 224 Ga. 352 (161 SE2d 874).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1035.
    VANCE v. THE STATE.
    (421 SE2d 730)
   McMurray, Presiding Judge.

Defendant was indicted for violating the Georgia Controlled Substances Act (possession of cocaine). The evidence adduced at a motion to suppress hearing revealed the following: At about 11:30 p.m. on March 27, 1990, Officer Anthony Volkadav and two other officers of the Atlanta Police Department were on routine patrol in a “housing projects area” when they observed defendant “standing by one of the buildings.” Officer Volkadav pulled over and “motioned to [defendant] to come to the patrol car.” Defendant withdrew his hands from his pockets and placed his right hand behind his leg. Officer Volkadav then observed defendant “drop an object” from his right hand and walk toward the patrol car. Officer Volkadav detained defendant at the police car while the other two officers investigated the area where defendant dropped the object. The officers found “one small glassine envelope which contained suspected crack cocaine. . . .” Defendant was arrested.

The trial court denied defendant’s motion for new trial. This appeal followed defendant’s conviction for possession of cocaine. Held:

Defendant contends the trial court erred in denying his motion to suppress, arguing he was stopped and detained by law enforcement officers without articulable suspicion that he had committed or was about to commit a crime.

“It has been said that United States ‘ “Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief ‘seizures’ that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. (Cits.)” ’ McAdoo v. State, 164 Ga. App. 23, 26 (295 SE2d 114).” Alexander v. State, 166 Ga. App. 233 (2), 234 (303 SE2d 773).

Decided July 2, 1992

Reconsideration denied July 27, 1992

Corinne M. Mull-Milsteen, for appellant.

Robert E. Wilson, District Attorney, Elisabeth MacNamara, Assistant District Attorney, for appellee.

In the case sub judice, defendant contends he was unlawfully detained when Officer Volkadav waved him to the patrol car, arguing that refusal to comply with the officer’s demand may have led to police oppression and brutality. This contention is without merit. Defendant had no previous contact with police officers on the night of his arrest and Officer Volkadav’s gesture for defendant to come to the patrol car was not accompanied by threats or coercion. In fact, defendant gave direct testimony that it was his choice to approach the officers.

Defendant was not detained until after Officer Volkadav observed defendant remove his hands from his pants’ pockets and drop an object behind his right leg. This evidence justified defendant’s brief detention while the officers investigated the area where defendant dropped the object. The trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A92A0091.
    THORNTON et al. v. WARE COUNTY HOSPITAL AUTHORITY.
    (421 SE2d 713)
   Cooper, Judge.

As a result of injuries Rosemary Thornton suffered during surgery, Mrs. Thornton and her husband, appellants herein, brought an action for personal injuries and loss of consortium against appellee d/b/a Memorial Hospital (hereinafter referred to as the “hospital”), Dr. Charles Whigham and the anesthesia team consisting of an anesthesiologist and a nurse anesthetist. We granted this interlocutory appeal from the trial court’s dismissal of appellants’ complaint against the hospital. The issue for our determination is whether appellants complied with the affidavit filing requirements of OCGA § 9-11-9.1.

Appellants alleged in their complaint that while Mrs. Thornton was under the care and control of the defendants, collectively, she was improperly and negligently cared for and that the defendants failed to exercise that degree of medical care and diligent skill that is generally employed by physicians, nurses and hospitals. Pursuant to OCGA § 9-11-9.1, appellants filed two affidavits with their complaint, one which set forth the negligent acts of the anesthesia team and another which set forth the negligence of Dr. Whigham. The hospital moved to dismiss the complaint on the grounds that neither of the affidavits filed by appellants set forth any negligent act of the hospital. Appellants subsequently amended their complaint to allege that the hospital was liable for the acts of Dr. Whigham and the anesthesia team under a theory of respondeat superior. Appellant also alleged that nurses employed by the hospital had committed negligent acts during the care and treatment of Mrs. Thornton. “[I]n Gillis v. Goodgame, 262 Ga. 117 [(414 SE2d 197) (1992), the Supreme Court of Georgia] held ‘that the affidavit requirements of OCGA § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2); and 43-1-24.’ [Cit.]” Lamb v. Candler Gen. Hosp., 262 Ga. 70 (413 SE2d 720) (1992). Appellants’ complaint against the hospital is not an action against a “professional” as defined in the above cited Code sections. See Lamb, supra. Nevertheless, the hospital can be liable under a theory of respondeat superior for the negligence of its physicians and nurses. See Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. 152 (6) (392 SE2d 897) (1990). We conclude that appellants complied with the requirements of § 9-11-9.1 by filing with their complaint affidavits which set forth the negligence of the professionals whose acts form the basis for appellants’ claim against the hospital. The hospital, citing OCGA § 9-11-9.1 (e), incorrectly characterizes appellants’ amendment to their complaint as an attempt to circumvent the filing requirements of § 9-11-9.1. We disagree. OCGA § 9-11-9.1 (e) addresses only the attempt to amend a complaint when the plaintiff fails to file an affidavit contemporaneously with the complaint. Appellants’ complaint as originally filed included the requisite affidavits setting forth the negligent acts of Dr. Whigham and the anesthesia team. However, the complaint was unartfully drafted in that it alleged that the defendants, collectively, failed to exercise the required degree of care. The amendment merely clarified the specific basis for the hospital’s liability. We find no merit to the hospital’s argument and hold that the trial court erred in dismissing appellant’s complaint.

The hospital argues in its brief that even if an affidavit was not required, it was entitled to summary judgment on appellants’ claim of negligence by respondeat superior. Appellants’ amended complaint in which they specifically set forth their claim that the hospital was liable for the acts of Dr. Whigham and the anesthesia team under a theory of respondeat superior was filed after the hospital filed its motion to dismiss. It does not appear that the merits of that claim were addressed by the trial court’s grant of the hospital’s motion to dismiss. “ ‘(I)ssues raised . . . (which are) not . . . encompassed within the final order from which the appeal has been taken, . . . may not . . . (be) raise(d) (on appeal), either in enumerations of error or through arguments in briefs of counsel. . . . (Cit.)’ [Cit.]” Costanzo v. Jones, 200 Ga. App. 806, 811 (3) (409 SE2d 686) (1991).

Decided May 5, 1992

Reconsideration denied July 28, 1992

Sutton & Slocomb, Berrien L. Sutton, Hallman & Associates, Ronald W. Hallman, for appellants.

Dillard, Landers & Bower, Terry A. Dillard, Bryant H. Bower, Jr., for appellee.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A0491.
    HUTCHESON MEDICAL CENTER et al. v. SCEALF et al.
    (422 SE2d 20)
   Cooper, Judge.

Appellees, husband and wife, filed a medical malpractice complaint against appellants, a hospital and three physicians, on January 7, 1991. The complaint alleged acts of malpractice which occurred during the hospitalization of appellee husband during the months of January and February 1989. A medical expert’s affidavit was not attached to the complaint; however, the complaint stated that it was filed within ten days of the running of the statute of limitation and that the affidavit would be filed within 45 days pursuant to OCGA § 9-11-9.1 (b). No affidavit was ever filed, and on March 19, 1991, the trial court granted appellants’ motion to dismiss the complaint, dismissing the complaint with prejudice. On April 8, 1991, appellees filed a motion for reconsideration with the trial court, arguing that the dismissal should have been without prejudice. While the motion for reconsideration was pending in the trial court, appellees filed a notice of appeal to this court, on April 18, 1991. Thereafter, on April 24, the trial court, without knowledge of the notice of appeal, ruled on the motion for reconsideration, by amending its prior order to change the dismissal with prejudice to a dismissal without prejudice. Appellees then dismissed the appeal and filed a voluntary dismissal of the lawsuit. In June 1991, within six months of the dismissal of the complaint, appellees refiled the action, this time attaching the required medical expert’s affidavit. Also, in the new complaint, appellees alleged that appellee husband “was without sufficient mental capacity to entertain any civil action until well after the negligent act or acts were committed.” Appellants again filed motions to dismiss, contending that the statute of limitation on appellees’ cause of action had expired prior to the filing of the second complaint, and therefore OCGA § 9-11-9.1 (f) prevented appellees from renewing their action under OCGA § 9-2-61. In response to the motions to dismiss, appellees filed the affidavit of appellee husband’s treating physician who stated that appellee husband was without mental competence or capacity to understand that actionable negligence may have been committed by the appellants for at least six months following his surgery on January 6, 1989. Appellees argued that the statute of limitation was tolled for the six months of appellee husband’s incapacity; that the second complaint was filed within the limitation period; that the renewal complaint was therefore authorized under OCGA § 9-11-9.1 (f); and that, at minimum, there is a factual issue as to the appellee husband’s incapacity such that a dismissal was not authorized. Appellants subsequently filed motions for summary judgment on the grounds that the trial court’s order on the motion for reconsideration, in which it amended its order from a dismissal with prejudice to one without prejudice, is invalid because the trial court had no jurisdiction to enter the order after the notice of appeal to this court had been filed. According to appellants, the dismissal with prejudice should stand, thereby prohibiting a renewal action. In two orders, issued on the same day, the trial court denied appellants’ motions to dismiss and motions for summary judgment. We granted appellants’ application for an interlocutory appeal from the trial court’s denial of their motions for summary judgment and motions to dismiss the complaint.

1. Appellants argue that the trial court was without jurisdiction to enter its order on the motion for reconsideration after the notice of appeal had been filed. The trial court concluded in its order denying appellants’ motions for summary judgment that the first dismissal should have been without prejudice and that the court had authority to correct its judgment even after the notice of appeal had been filed. We disagree. “[T]he filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect. [Cits.]” Brown v. Wilson Chevrolet-Olds, 150 Ga. App. 525, 531 (2) (258 SE2d 139) (1979). See Deans v. Dain Mgmt., 201 Ga. App. 466, 468 (411 SE2d 354) (1991). Appellees argue that since the motion for reconsideration did not extend the time for filing a notice of appeal, they had no alternative but to file a notice of appeal while the motion for reconsideration was pending in order to preserve their right to appeal the dismissal with prejudice. Appellees’ reasoning is sound but fails to take into consideration that once the notice of appeal was filed, the trial court lost all jurisdiction to rule on the motion for reconsideration. Therefore, the only process to enable appellees to obtain a decision changing the dismissal with prejudice to one without prejudice was through an appeal to this court. However, appellees precluded our consideration of that issue by dismissing their notice of appeal upon the trial court’s entry of its second order. Thus, the only valid order was the trial court’s first order, which clearly stated that the dismissal was with prejudice. A dismissal with prejudice is res judicata of all questions which might have been litigated in the action and is a final disposition, barring the right to bring another action on the same claim. See Cranford v. Carver, 124 Ga. App. 767, 768 (186 SE2d 150) (1971). Appellees’ second complaint involved the same cause of action against the same defendants as the first complaint. Hence, it appears that the defense of res judicata operated to bar the subsequent action. See OCGA § 9-12-40; Liner v. North, 194 Ga. App. 175 (1) (390 SE2d 263) (1990). Accordingly, we hold that the trial court erred in denying appellants’ motion for summary judgment based on res judicata.

Decided July 13, 1992

Reconsideration denied July 28, 1992

Kinney, Kemp, Pickell, Sponcler & Joiner, L. Hugh Kemp, Minor, Bell & Neal, John T. Minor III, Watson & Daña, Dennis D. Watson, for appellants.

Hoyt, MacLeod, Callan, Sproles & Slade, Wade C. Hoyt III, for appellees.

2. Our decision in Division 1 makes it unnecessary to address appellants’ remaining enumerations of error.

Judgment reversed.

Sognier, C. J., concurs. McMurray, P. J., concurs in judgment only.


author: Pope, Judge.

text:
    A92A0535.
    CHOUINARD v. LEAH ENTERPRISES, INC.
    (422 SE2d 204)
   Pope, Judge.

This is the second appearance of this case before this court. In Leah Enterprises v. Chouinard, 189 Ga. App. 744 (377 SE2d 514) (1988) (Leah I), this court upheld the trial court’s order finding plaintiff/landlord Alfred R. Chouinard was entitled to possession as a matter of law of premises which had been leased to defendant/tenant Leah Enterprises, Inc. d/b/a Solutions. The case proceeded to trial on Chouinard’s claim for damages and Leah’s counterclaim for conversion. Judgment was entered on the jury’s verdict awarding the landlord $5,830 principal and $583 attorney fees on his claim for amounts owing under the terms of the lease and on the jury’s verdict awarding the tenant $6,140 compensatory damages and $25,000 punitive damages on its counterclaim. The landlord filed motions and amended motions for new trial and JNOV, which were denied by order of the trial court on October 3, 1991. The landlord timely filed his notice of appeal to this court on October 23, 1991.

1. The tenant’s action for conversion arose out of the landlord’s refusal to allow the tenant to re-enter the premises to remove certain items used in operating the business known as Solutions. The record shows the tenant continued to occupy the premises and run the business from that site during the dispossessory proceedings and subsequent appeal to this court. On or about December 18, 1988, following the issuance of this court’s opinion in Leah I, the tenant began vacating the premises. The tenant intended to return the next day to remove the remainder of its property. However, an employee of one of the other tenants in the shopping center where Solutions was located broke into the bar overnight and committed acts of theft and vandalism. The landlord thereafter refused to allow the tenant to enter the premises or remove any of the property remaining therein. It is this action by the landlord which forms the basis of the tenant’s conversion action which is the subject of this appeal.

The tenant posits it was entitled to remove the items remaining in the building because they were personalty, not trade fixtures. “Trade fixtures are articles annexed to the realty by a tenant for the purpose of carrying on a trade . . . .” Currin v. Milhollin, 53 Ga. App. 270, 272 (185 SE 380) (1936). Black’s Law Dictionary defines trade fixtures as “[ajrticles placed in or attached to leased property by the tenant, to facilitate the trade or business for which he occupies the premises, or to be used in connection with such business, or promote convenience and efficiency in conducting it.” Black’s Law Dictionary, p. 638 (6th ed. 1990). See also Ory v. Tate, 211 Ga. 256 (1) (85 SE2d 36) (1954). A review of the record in this case shows that the items alleged to have been converted clearly fit the definition of trade fixtures, not chattels or personalty. The question thus presented in this case concerns the tenant’s right to remove its trade fixtures once the term of the lease expired on October 31, 1987.

The parties agree that OCGA § 44-7-12 governs the issue of the tenant’s right to remove its trade fixtures. That section provides that “[d]uring the term of his tenancy or any continuation thereof or while he is in possession under the landlord, a tenant may remove trade fixtures erected by him. After the term and his possession are ended, any trade fixtures remaining will be regarded as abandoned for the use of the landlord and will become the landlord’s property.” The tenant argues it was a tenant at will, i.e., its possession was “under the landlord,” because the landlord continued to accept rent during the pendency of the dispossessory proceedings and while the case was originally on appeal to this court and also because the parties executed a consent agreement which specified the amount of monthly rent to be paid by the tenant during this period. However, a landlord has a right to accept rent from a tenant holding over during the pendency of dispossessory proceedings, and such acceptance does not change the nature of the tenancy from one at sufferance to one at will. Allen v. Allen, 154 Ga. 581 (4) (115 SE 17) (1922). It is clear that the rent in this case, as was the rent in Cheeves v. Horne, 167 Ga. App. 786 (307 SE2d 687) (1983), was “accepted merely because [the tenant] refused to vacate the premises and insisted upon his right to remain there pending resolution of the dispossessory proceedings.” Id. at 788. Rent accepted under these terms does not amount to an acquiescence by the landlord of the tenant’s possession of the premises. Accord Main Station v. Atel I, 190 Ga. App. 205, 207 (2) (378 SE2d 393) (1989). Consequently, the tenant had no right to remove its trade fixtures in this case once its rightful possession of the premises ended.

Although the result reached in this case may seem harsh, we note that the result would be the same if the question of the tenant’s right to remove its trade fixtures was resolved under the terms of the parties’ lease agreement. Paragraph 17 of the lease provides that the tenant may remove its trade fixtures prior to the expiration of the lease unless it is in default under the lease. In Leah I we held that the tenant in this case was in default and, therefore, was not entitled to exercise its option to renew the lease. Since the tenant was in default, the right to remove trade fixtures had also been extinguished. Consequently, a holding by this court that the tenant had the right to remove its trade fixtures once the lease expired would give the tenant greater rights than it would have enjoyed under the provisions of the parties’ lease agreement.

Decided June 23, 1992

Reconsiderations denied July 23, 1992 and July 28, 1992

Glenville Haldi, for appellant.

James W. Wilson, for appellee.

In sum, we agree with the landlord that the tenant in this case was not entitled to re-enter the premises for the purpose of removing the trade fixtures remaining therein. Therefore, the landlord’s retention and subsequent disposal of the items remaining on the premises did not constitute a wrongful conversion of the tenant’s property. The award of compensatory and punitive damages to the tenant arising out of the alleged conversion of its trade fixtures must therefore be reversed.

2. Because of our holding in Division 1, supra, it is unnecessary for us to address the landlord’s remaining enumerations of error.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.

      The items were as follows: a grill cover frame, deep fryer, griddle, four stove burner, soiled and clean dish tables, dishwasher stainless steel rack, bar top, neon transformers, office chair, ladder, waitress station, outside sign, ice machine, ice bin, and six to seven beer and wine kegs.


text:
    A92A0590.
    REED v. THE STATE.
    (422 SE2d 15)
   Cooper, Judge.

Appellant was convicted by a jury of attempting to elude an officer in violation of OCGA § 40-6-395 and obstruction of an officer in violation of OCGA § 16-10-24 (a). He appeals from the judgment of conviction and-sentence entered on the verdict.

The evidence adduced at trial reflects that while on patrol, Officer Donnie Payne received a lookout call for a red Corvette which was running cars off the road as it travelled south on Interstate 85. Officer Payne headed towards 1-85 travelling on Highway 29 when a red Corvette passed him going in the opposite direction. The Corvette crossed the centerline of the highway. Officer Payne turned his car around and pursued the Corvette with his siren and blue lights on, signalling for appellant, the driver of the red Corvette, to pull over. The patrol car was directly behind the Corvette, but appellant did not pull over and continued to swerve back and forth across the centerline. Appellant turned off the highway onto a dirt road and continued driving until he came to a stop in front of a small camper. Appellant got out of the Corvette and walked towards Officer Payne cursing and asking why he was being stopped. Officer Payne noticed that appellant appeared to be staggering, slurred his speech and smelled of alcohol. While Officer Payne checked appellant’s license and insurance, he received a call over his radio. The officer stepped to his patrol car to answer the call, and appellant began walking away from Officer Payne. Officer Payne told appellant to stop and come back to the car, but appellant ignored him and kept walking away. Appellant went inside the camper, turned out the lights and remained inside. Officer Payne called for backup and subsequently obtained a warrant for appellant’s arrest. When Officer Payne returned to the camper to execute the warrant, appellant was not in the camper. The following day, appellant called Officer Payne and was informed of the charges against him. Appellant subsequently appeared in court with an attorney, pled 'not guilty and requested a jury trial. Appellant failed to appear in court for his scheduled trial date, and the court issued a bench warrant for his arrest. Appellant’s attorney contacted the court to request that the bench warrant be lifted and that he be allowed to file motions on appellant’s behalf. Appellant’s attorney filed discovery motions as well as a motion to suppress. The trial court heard the motions and set the case down for a jury trial. On the date of trial, appellant appeared in court with a different attorney, who filed a demurrer and motion to quash each of the accusations. The trial court noted that the motions should have been filed upon arraignment of appellant but proceeded to hear appellant’s motions and subsquently denied them.

1. Appellant contends that the trial court erred in denying his motion to quash the accusations. Appellant first argues that the accusation charging him with obstruction of an officer was defective in that it did not sufficiently apprise appellant of the acts of which he was accused. The accusation charged appellant with “knowingly and wilfully [obstructing] officer Donnie Payne in the lawful discharge of his official duties as a law enforcement officer in violation of [OCGA §] 16-10-24.” “ ‘ “An indictment substantially in the language of the Code is sufficient in form and substance.” (Cit.)’ (Emphasis supplied.) [Cit.]” State v. Howell, 194 Ga. App. 594, 595 (391 SE2d 415) (1990). The accusation described the offense in terms of the statute and stated that the act was unlawfully committed and contrary to the laws of the State. We find no error with the trial court’s denial of appellant’s motion to quash the accusation.

The accusation charging appellant with attempting to elude stated that appellant “did wilfully fail and refuse to bring his vehicle to a stop or did otherwise flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop in violation of [OCGA §] 40-6-395.” Appellant argues that the accusation was defective because the word “or” charged appellant with alternative acts and failed to allege specifically how appellant committed the acts. Prior to trial, the State amended the accusation in open court pursuant to OCGA § 17-7-71 (f) by substituting the word “and” for the word “or.” We find that the accusation as amended was sufficient to apprise appellant of the charges against him and the trial court did not err in denying appellant’s motion to quash the accusations. Furthermore, appellant did not request a continuance and has failed to show how his ability to present a defense was impeded by the amendment. See Melton v. State, 174 Ga. App. 461 (2) (330 SE2d 398) (1985).

2. Appellant next contends that the trial court erred in denying his motion to dismiss the accusations and plea in bar on the grounds of double jeopardy. Appellant argues that the accusation charging him with attempting to elude was amended after jury selection; therefore, jeopardy had attached and the State was barred from prosecuting appellant under the amended accusation. The record reflects that the solicitor amended the accusation in open court prior to the selection of the jury and that appellant acknowledged that the amendment was being made. However, appellant argues that he was not actually served with the amended accusation until after the jury was selected. Inasmuch as the actual amendment to the accusation was made prior to the selection of the jury and in the presence of appellant, we find no merit to appellant’s argument.

3. Appellant next contends that the trial court erred in proceeding'with the trial after appellant filed a notice of appeal from the denial of his motion for plea in bar. After listening to appellant’s argument on the plea in bar based on double jeopardy, the trial court referred to appellant’s argument as “absurd” and made a handwritten note at the bottom of appellant’s motion denying the same. Several minutes later and immediately prior to opening statements, appellant filed a notice of appeal from the trial court’s order denying his plea in bar. Appellant objected to the continuation of the trial on the ground that the filing of a notice of appeal divested the trial court of jurisdiction. “[A]n order denying a plea of double jeopardy is appealable . . . where the plea [is] filed sufficiently in advance of trial so as not to constitute a delaying device.” Patterson v. State, 248 Ga. 875, 877 (287 SE2d 7) (1982). While the trial court’s order does not specifically state that the plea in bar was “frivolous and dilatory” (Rielli v. Oliver, 170 Ga. App. 699 (318 SE2d 173) (1984)), it is apparent from the trial court’s comments and the fact that appellant chose to file his motion for plea in bar after the selection of the jury and before opening statements, that the trial court found appellant’s plea in bar to be only a delaying tactic. Accordingly, the trial court did not err in proceeding with the trial. See Patterson, supra.

4. In his fifth and sixth enumerations of error, appellant contends that the trial court erred in denying his motion for directed verdict of acquittal as to the charge of obstruction of an officer and attempting to elude. A directed verdict of acquittal should be granted where “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .” OCGA § 17-9-1. The posture of the evidence in the- case was not such as to demand a verdict of acquittal. See Freeman v. State, 194 Ga. App. 905 (10) (392 SE2d 330) (1990).

Appellant’s reliance on Coley v. State, 178 Ga. App. 668 (344 SE2d 490) (1986) to support his argument that the trial court should have granted a directed verdict as to the obstruction charge is misplaced. In Coley, an officer arrived at the scene of a domestic dispute. The defendant refused to obey the officer’s command to move away from his truck. When the defendant began to walk away toward the house, the officer ordered him to stop and the defendant refused. The officer then grabbed the defendant and arrested him. We reversed the trial court’s denial of directed verdict of acquittal. However, in Coley, we noted that the defendant was not committing an offense when the officer arrived at the scene, that the defendant did not argue with the officer and that “[a]t most, [appellant] did not respond immediately to [the officer’s] orders.” Id. In the case sub judice, the officer had observed appellant’s car swerving across the centerline and had a report that appellant’s car was running cars off the road. The officer was in the process of investigating appellant for driving under the influence and was in possession of appellant’s license and insurance when appellant walked inside the house. Unlike the situation in Coley, appellant did not respond at all to the officer’s orders and forced the officer to get a warrant in an effort to effectuate an arrest of appellant. “Whether the actions of a defendant actually had the effect of hindering or impeding the officer is a decision for the trier of fact. [Cit.]” Patterson v. State, 191 Ga. App. 359 (1) (381 SE2d 754) (1989). Accordingly, we find no error in the trial court’s denial of appellant’s motion for directed verdict on either the obstruction charge or the attempting to elude charge.

5. In his final enumeration of error, appellant contends that the trial court erred in refusing to charge the jury that the mere refusal to obey an order of a law enforcement officer does not constitute obstruction within the meaning of the statute and that if appellant did nothing more than fail to respond immediately to the officer’s orders, the evidence would be insufficient to support a verdict of guilty. “[T]he charge, as requested, was not adjusted to the evidence, was inappropriate, and was not applicable in the case sub judice. [Cit.]” Cook v. State, 195 Ga. App. 461, 462 (1) (394 SE2d 121) (1990). Thus, the trial court did not err in refusing to give the charge requested by appellant.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

Decided July 9, 1992

Reconsideration denied July 28, 1992

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

John H. Cranford, Solicitor, for appellee.


text:
    A92A0603.
    GREENE COUNTY HOSPITAL AUTHORITY v. TURNER.
    (421 SE2d 715)
   Cooper, Judge.

Appellee brought an action against appellant d/b/a Minnie G. Boswell Memorial Hospital (hereinafter referred to as the “hospital”) and Dr. William Buhrow for injuries appellee suffered as a result of surgery performed by Dr. Buhrow. Pursuant to OCGA § 9-11-9.1, appellee filed an affidavit which set forth the negligence of Dr. Buhrow. However, the affidavit did not set forth any negligence on the part of the hospital. The hospital filed a motion to dismiss or, in the alternative, motion for summary judgment on the ground that appellee’s expert affidavit did not allege any negligence as to the hospital or any of its employees. The trial court’s order recites that the hospital’s motion is granted as to appellee’s “medical malpractice and/or medical professional negligence claims” but denied as to appellee’s “ordinary negligence claims.” We granted the hospital’s interlocutory appeal from the trial court’s denial of its motion to dismiss appellee’s negligence claims against the hospital.

The Supreme Court of Georgia decided in Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992) that the affidavit requirements of OCGA § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2); and 43-1-24. Id. at 118. In another case decided on the same day as Gillis, the Supreme Court held that the affidavit requirements of OCGA § 9-11-9.1 did not apply to a plaintiff’s claims of negligence against a hospital because the case was not one against a “professional” or involving “professional malpractice.” See Lamb v. Candler Gen. Hosp., 262 Ga. 70 (413 SE2d 720) (1992). In the complaint, the only claim stated against the hospital is that the hospital “was negligent in that its staff failed to meet the standard of care required of medical professionals generally in screening, observing, and treating [appellee].” The same language is used to state a claim against Dr. Buhrow. While that language may state a claim of malpractice against Dr. Buhrow since he is a professional, the language states only a claim of ordinary negligence against the hospital to the extent that the members of the hospital “staff” referred to in appellee’s complaint are non-professionals as defined by Gillis. Therefore, the trial court did not err in denying appellant’s motion to dismiss as to appellee’s ordinary negligence claims. However, as the Supreme Court noted in Lamb, the hospital is not precluded from asserting the lack of a § 9-11-9.1 affidavit as a defense if the hospital establishes that the “staff” members are professionals under Gillis. See Lamb, supra at 72, footnote 3. Thus, we conclude that the trial court did not err in denying the hospital’s motion to dismiss.

Decided May 5, 1992

Reconsideration denied July 28, 1992

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, N. Beth Dorsey, Blasingame, Burch, Garrard & Bryant, Milton F. Eisenberg II, for appellant.

' Sherry J. Locklin, for appellee.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A0643.
    BROOKS v. OIL-DRI CORPORATION OF GEORGIA.
    (422 SE2d 22)
   Cooper, Judge.

Appellant, a welder employed by Ironwood Construction Company (“Ironwood”), brought suit against appellee to recover for injuries sustained when appellant fell from an elevator on premises owned by appellee. Appellant contended that appellee was negligent in failing to disclose that the elevator was unsafe. The trial court granted appellee’s motion for summary judgment and this appeal followed.

Appellee owned and operated a mining business which utilized two vertical bucket elevators. Elevator E-110 was approximately 125 feet high and was adjacent to and connected to elevator E-lll, which was approximately 90 feet high. Elevator E-110 was an older piece of equipment which was in place when appellee purchased the property in 1985 and had become difficult to maintain because appellee did not have the equipment to maintain an elevator of that height. Appellee, through its plant manager Dewey McCabe, entered into an oral agreement with Joseph Lacayo, the president of Ironwood, for Ironwood to reduce the height of elevator E-110 by 30 feet. Ironwood had previously dismantled a similar elevator on appellee’s property. Before beginning the dismantling, Lacayo and Zendel Vickers, a construction superintendent for Ironwood, examined E-110 to determine the best way to go about reducing the height. Vickers and Lacayo knew that the elevator had previously been patched by appellee but their inspection of E-110 revealed that it was structurally sound. Vickers and Lacayo decided that the best way to reduce the height of E-110 was to dismantle it in reverse order by first removing five pipes which connected the elevator to silos and rail siding; then hooking onto the top of the elevator with a crane and removing the guy wires which kept wind from affecting the elevator; and then cutting off the 30-foot section and lowering the elevator to the ground. It is undisputed that none of appellee’s personnel participated in the decision of how to dismantle the elevator or exercised any control over how Ironwood performed the work. On the day of the dismantling, appellee’s personnel used the elevator to load a railroad car, and the elevator was structurally intact at that time. Ironwood then took control of the elevator to begin dismantling. Appellant was part of the crew assembled to dismantle the elevator. After the fourth pipe had been removed, Vickers checked to make sure that the elevator had not shifted. Vickers then instructed the crew to remove the last pipe, but when that pipe was removed, elevator E-110 collapsed, carrying elevator E-lll with it. Appellant was standing on the platform near the top of elevator E-lll and was injured when elevator E-lll fell to the ground.

Appellant contends that the trial court erred in granting summary judgment to appellee. Summary judgment is proper if “the pleadings . . . , together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . . . .” OCGA § 9-11-56 (c). “On motion for summary judgment, ‘the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. [Cits.]’ [Cit.]” Eiberger v. West, 247 Ga. 767, 769 (1a) (281 SE2d 148) (1981). Appellant contends that elevator E-110 was unsafe; that it had been patched several times by appellee; that it showed signs of rust and wear and tear; and that appellee knew it was unsafe because it was too high for appellee to perform routine maintenance. We note at the outset that appellant has failed to show the existence of a defect in elevator E-110 which caused it to collapse. Following the accident, an inspector from the Mine Safety & Health Administration (“MSHA”) investigated the accident and concluded that the failure of elevator E-110 was “triggered by the dismantling operation, rather than from structural deterioration alone, or other causes.” Furthermore, appellant has failed to establish liability on the part of appellee by showing that appellee had superior knowledge of a defect. “ ‘Before the owner of premises can be held liable for injuries done by reason of a defect therein to one lawfully on the premises in the employ of an independent contractor engaged by the owner to perform services on the premises, it must appear that the owner had control of the premises.’ [Cits.] The basis of the owner or occupier’s liability is his superior knowledge of the existence of the defect or hazard that may subject an invitee to an unreasonable risk of harm. [Cits.]” Amear v. Hall, 164 Ga. App. 163, 167 (2) (296 SE2d 611) (1982). Both Lacayo and Vickers stated in their affidavits that they knew that elevator E-110 was an older piece of equipment which had been previously patched and that no one employed by appellee made any representations about the condition of the elevator. There is also evidence that Ironwood’s employees inspected elevator E-110 prior to the dismantling and saw no defects which affected the structural integrity of the elevator. “An individual contractor is expected to determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of the contract. [Cits.]” Amear v. Hall, supra at 167. There is no evidence of any latent or patent defect of which appellee had knowledge and which Ironwood could not have discovered during its inspection.

Decided July 14, 1992

Reconsideration denied July 28, 1992

Beauchamp & Associates, William Eckhardt, for appellant.

Hodges, Erwin, Hedrick & Kraselsky, William A. Erwin, for appellee.

Appellant also argues that appellee is liable under OCGA § 51-2-5 (2) which provides that an employer is liable for the negligence of a contractor “ [i]f, according to the employer’s previous knowledge and experience, the work to be done is in its nature dangerous to others however carefully performed.” Appellant contends that the dismantling of the elevator was inherently dangerous work regardless of how carefully performed. The record does not support appellant’s contention. The MSHA report indicates that the elevator could have been safely dismantled with the use of additional cranes and structural bracing. Therefore, we cannot conclude that the dismantling of the elevator was inherently dangerous, “however carefully performed.” See Green v. Moreland, 200 Ga. App. 167 (3) (407 SE2d 119) (1991).

For the foregoing reasons, we conclude that the trial court did not err in granting summary judgment to appellee.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A0674.
    RAMIREZ v. THE STATE.
    (422 SE2d 3)
   Pope, Judge.

This is defendant’s third appeal to this court. See Ramirez v. State, 190 Ga. App. 889 (380 SE2d 323) (1989); Ramirez v. State, 196 Ga. App. 11 (395 SE2d 315) (1990). Defendant was first convicted for trafficking in cocaine in March 1988. That conviction was ultimately reversed in defendant’s first appeal to this court. Defendant was next tried in December 1990, but that trial ended in a mistrial. Defendant now appeals from his conviction in his third trial in January 1991. The facts adduced at defendant’s third trial are essentially the same facts presented at defendant’s first trial and are recited in Ramirez, 190 Ga. App. at 889-890.

1. The defendant first contends that the trial court erred in denying the defendant’s motion for directed verdict at the close of the State’s case because the evidence was insufficient as a matter of law to support defendant’s conviction. The facts in this case are remarkably similar to those in Cochran v. State, 190 Ga. App. 884 (1) (380 SE2d 319) (1989) in which we held the driver of an automobile in which contraband and cash were discovered was in joint actual possession of the contraband with the car owner/passenger. In this case, as in Cochran, there was sufficient evidence for a rational trier of fact to conclude defendant was in actual possession of the hidden contraband and convict defendant of trafficking in cocaine. See Ramirez, 190 Ga. App. at 890-891.

2. Defendant next contends that the trial court erred in allowing the State to introduce evidence of similar transactions. It is undisputed that the only evidence of similarity offered by the State between the prior crime and the crime charged was a certified copy of the conviction.

Since this case was tried, the Georgia Supreme Court in Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991) and Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) set forth the procedure that must be followed before similar transaction evidence can be admitted. In Stephens, the Georgia Supreme Court held that the procedure followed in this case of presenting only a certified copy of a prior conviction is insufficient to meet the State’s burden of showing similarity between the crimes. Stephens, 261 Ga. at 468-469. Because we cannot say the erroneous admission of the prior conviction was harmless, defendant’s conviction must be reversed on this basis.

The State argues that the decisions in Stephens and Williams should not be applied to those cases tried before those decisions were issued. The Georgia Supreme Court, however, made it clear in the opinions in those cases by reversing the convictions involved in those cases that the procedure outlined in those cases should be applied retroactively. We are constrained to follow their direction.

Decided May 27, 1992

Reconsideration denied July 28, 1992

Michael M. White, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

3. The trial court did not err by failing to charge the jury on the principle of equal access. Both the defendant and the other occupant of the vehicle were charged with the offense and no evidence was presented that others had equal access to the vehicle. Accordingly, the principle of equal access is not applicable. Cochran v. State, supra.

4. Defendant urges that the prosecutor’s comment about defendant’s failure to testify at trial is reversible error. In support of this argument, defendant relies upon the recent decision in Mallory v. State, 261 Ga. 625 (5) (409 SE2d 839) (1991). The Georgia Supreme Court made it clear in the Mallory decision, however, that the opinion would only apply to those cases tried after the decision was issued on December 26, 1991. Defendant was tried before that date. Therefore, the Mallory decision does not present grounds for reversible error in this case as defendant contends. Upon retrial, however, the Mallory decision will be applicable to this case.

5. Defendant contends the trial court erred by not allowing, defendant’s sentence to commence until after all defendant’s appeals have been exhausted. It appears upon review of the record in this case that defendant’s sentence does not comply with the dictates of OCGA § 17-10-9. If upon retrial defendant is convicted, the trial court should ensure that his sentence complies with the dictates of that statute.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.


author: Carley, Presiding Judge.

text:
    A92A0701.
    RIDGEWAY v. THE STATE.
    (422 SE2d 4)
   Carley, Presiding Judge.

After a bench trial, appellant was found guilty of possession of cocaine with intent to distribute. He appeals from the judgment of conviction and sentence entered by the trial court on its finding of guilt, and enumerates as error only the denial of his motion to suppress.

Appellant was stopped by officers who were authorized to arrest him for the commission of a traffic offense in their presence. Because the officers had probable cause to effectuate an immediate arrest of appellant, not merely an articulable suspicion to detain him for further investigation, the trial court clearly was authorized to find that the officers’ actions were not pretextual. The stop was to effectuate an arrest, and “[t]he fact that, at the time of the stop, the officer[s] may have had a suspicion, short of probable cause, that the vehicle would contain contraband does not demand a finding that the stop was pretextual.” Wise v. State, 201 Ga. App. 412-413 (411 SE2d 303) (1991). “A rule’requiring a law enforcement officer to forego making a traffic stop which he would otherwise be authorized to make merely because he suspects that the vehicle might be engaged in the transport of illicit drugs would have little to commend it, and we have previously declined the invitation to create such a rule. [Cits.]” (Emphasis in original.) Williams v. State, 187 Ga. App. 409, 411 (1) (370 SE2d 497) (1988).

The officers were authorized to make a custodial arrest of appellant, and were not limited to effectuating a non-custodial arrest by issuing appellant a citation for his commission of the traffic offense. Baker v. State, 202 Ga. App. 73 (413 SE2d 251) (1991); Brock v. State, 196 Ga. App. 605, 606 (1) (396 SE2d 785) (1990). Compare State v. Lamb, 202 Ga. App. 69 (413 SE2d 511) (1991). Moreover, the record shows that appellant had no driver’s license to deposit in lieu of bail. Therefore, a non-custodial arrest would not have been possible. Since a custodial arrest of appellant was authorized, the trial court correctly found that any evidence that was found in a contemporaneous search of his person and the passenger compartment of his automobile had been legally seized. Polk v. State, 200 Ga. App. 17 (406 SE2d 548) (1991); State v. Tinsley, 194 Ga. App. 350 (390 SE2d 289) (1990).

It appears that an initial search of the trunk of appellant’s automobile was authorized either as a valid inventory search or as a valid warrantless search of an automobile on probable cause, since $4,000 in cash, a set of scales and suspected cocaine residue had already been lawfully discovered on appellant’s person and in the passenger compartment of his automobile. In any event, nothing was discovered in this initial search of the trunk, so the validity or invalidity of that search is immaterial.

A subsequent search of the trunk of appellant’s automobile did result in the discovery of cocaine. The trial court’s finding that this search was conducted pursuant to appellant’s consent was authorized. Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975); Mann v. State, 196 Ga. App. 730, 731 (2, 3) (397 SE2d 17) (1990). Accordingly, the cocaine was legally seized.

Judgment affirmed.

Pope and Johnson, JJ., concur.

Decided June 23, 1992

Reconsideration denied July 28, 1992

Herbert Shafer, for appellant.

Lewis R. Slaton, District Attorney, Grover W. Hudgins, Penny A. Penn, William F. Riley, Jr., Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.