text:
    A94A2069.
    STATE LINE METALS, INC. v. ALUMINUM COMPANY OF AMERICA.
    (453 SE2d 474)
   Beasley, Presiding Judge.

Jecon Metals Corporation (“Jecon”) contracted with the Aluminum Company of America (“Alcoa”) to sell certain scrap metal known in the trade as “pot pads,” which Jecon was to recycle into other usable metal units and return to Alcoa. Jecon contracted with State Line Metals, Inc. (“SLM”) to perform the actual processing of the scrap metal and arranged for Alcoa to ship the metal to SLM f.o.b. SLM contends that when the shipments arrived they were too contaminated with other materials to be processed in their normal manner. SLM did, however, accept the shipments and piled all the scrap material together. It did not convert the pot pads and Jecon sued for breach of contract.

SLM moved for permission to implead Alcoa on June 24, 1993. Its original third-party complaint alleged that SLM was a third-party beneficiary of the contract between Alcoa and Jecon, breached by Alcoa when it made its shipments of metal to SLM between August 9, 1988 and March 3, 1989. It also alleged that Alcoa was negligent when it shipped the scrap metal with the amount of debris found. Alcoa moved for summary judgment, arguing in part that any contract claim against it was barred by the four-year statute of limitation found in OCGA § 11-2-725. It also asserted that any negligence claim, the exact nature of which was unspecified in the complaint, was similarly barred by the statute of limitation found in OCGA §§ 9-3-30; 9-3-31; or 9-3-32. In response to Alcoa’s motion, SLM argued that any third-party claims it had against Alcoa would not be barred if based on the doctrine of contribution, and it amended its third-party complaint to include a claim for contribution. Alcoa was granted summary judgment and SLM appeals. Jecon is also a party to the appeal pursuant to OCGA § 5-6-37.

1. Alcoa asserts that any basis for impleading it that is based upon contract or tort is barred by the various statutes of limitation. Although the court did not address the issue of the statutes of limitation in its order, the issue was raised and thoroughly addressed by Alcoa in its motion for summary judgment and “[a] grant of summary judgment must be affirmed if it is right for any reason. [Cit.]” Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 78 (441 SE2d 421) (1994). Following oral argument in this court, leave was granted under Rule 12 for SLM and Jecon to file supplemental briefs addressing the statutes of limitation. Jecon filed a supplemental brief, but SLM did not.

SLM asserts that by shipping debris-laden material, Alcoa breached a duty owed to SLM as a third-party beneficiary of the Alcoa-Jecon contract, and that the shipments breached other duties based in tort. Under OCGA § 9-11-14, SLM may assert any basis for secondary liability on the part of Alcoa and is not confined to a breach of contract theory simply because that is the basis for the underlying claim; “ ‘ “[i]t is immaterial that the liability of the third-party rests on a different theory from that underlying plaintiff’s claim.” (Cit.)’ [Cits.]” Mayor &c. of Savannah v. Southern Bulk Indus., 198 Ga. App. 867, 868 (1) (403 SE2d 447) (1991). Although any claim for secondary liability in contract or tort can be asserted under OCGA § 9-11-14, that does not relieve SLM of the responsibility to assert those claims within the applicable statute of limitation. See Safeco Ins. Co. of America v. Clay-Ric, Inc., 191 Ga. App. 592 (383 SE2d 138) (1989); Waddey v. Davis, 149 Ga. App. 308, 309-310 (1) (254 SE2d 465) (1979); PPG Indus. v. Genson, 135 Ga. App. 248, 250 (1) (217 SE2d 479) (1975).

The shipments ended in March 1989 and Jecon filed suit on September 3, 1992. SLM received permission to implead Alcoa on June 24, 1993, with summons executed the next day. Thus, Alcoa was not brought into the action until more than four years had passed after the alleged breaches of contractual and tort duties. See OCGA §§ 9-3-30; 9-3-31; 9-3-32; and 11-2-725.

SLM has also asserted a right to recover from Alcoa under the theory of contribution. The right to contribution, codified at OCGA § 51-12-32, provides that one joint tortfeasor may gain contribution from another even though the second tortfeasor was not brought into the main suit. OCGA § 51-12-32 (a). The right to contribution does not accrue until judgment is entered. Evans v. Lukas, 140 Ga. App. 182, 184 (230 SE2d 136) (1976). Although there can be no complete contribution claim until a judgment is rendered or a settlement made, contribution is a theory of recovery under which a defendant can file a third-party complaint authorized by OCGA § 9-11-14 before a case is tried. Evans, supra. It is not considered to have accrued for the purposes of the statute of limitation until a judgment has been rendered in the main claim. This does not mean that any other basis for impleader under OCGA § 9-11-14 accrues when the judgment is rendered. Any theory of recovery under which SLM sought to implead Alcoa had to be brought within the applicable statute of limitation.

SLM’s third-party complaint against Alcoa can only survive the operation of the statutes of limitation if it asserts a valid claim for contribution. Thus, SLM’s first two enumerations of error, dealing with the court’s determination that SLM was not an intended beneficiary of the contract between Jecon and Alcoa, are moot.

In support of its third, fifth, and sixth enumerations of error, SLM argues it can implead a third-party defendant on any theory of secondary liability, including a tort claim when the main claim is one for breach of contract. See Mayor &c. of Savannah, supra. Although the contention concerning the breadth of third-party practice is correct, it does not avoid the statute of limitation problem presented here. The facts of this case and the operation of the respective statutes of limitation preclude any impleader of Alcoa on grounds other than contribution.

2. SLM contends the court erred in determining that the third-party complaint could not be based on a theory of contribution. As stated above, contribution is the only theory under which SLM’s third-party complaint can avoid the operation of the statutes of limitation. The right to such a claim has been codified at OCGA § 51-12-32 (a), which provides that a party may gain contribution from a joint tortfeasor, even though the joint tortfeasor is not a party to the suit. The court determined that there could be no claim for contribution because SLM and Alcoa could not be joint tortfeasors without the commission of a tort.

The court reasoned that the only loss to Jecon was that covered by its contract with SLM, that Jecon therefore had no tort claim against SLM, and that as a result SLM could not be a joint tortfeasor with Alcoa. For SLM to be considered a joint tortfeasor with Alcoa, there must be both a tort and a manner in which both could be considered liable. See St. Paul Fire &c. Co. v. MAG Mut. Ins. Co., 209 Ga. App. 184 (433 SE2d 112) (1993). As to whether a tort exists, the question is whether there is “ ‘a claim in tort which does not arise from the contract, but is independent of it.’ [Cit.]” Unger v. Bryant Equip. Sales &c., 255 Ga. 53, 54 (1) (335 SE2d 109) (1985). With respect to joint liability, the issue is whether SLM and Alcoa either: a) tortiously acted in concert, or b) separately committed tortious acts that caused a single indivisible injury. Confetti Atlanta, Ltd. v. Gray, 195 Ga. App. 719, 720 (394 SE2d 632) (1990).

In the original complaint, Jecon asserted only that SLM breached the duties arising from the contract and did not make any claim in tort. SLM does not specify how it may have breached a duty to Jecon based in tort, but its position seems to be that it owed a duty to Jecon to use proper care in the receipt and storage of the material it received, in addition to the duties imposed by the contract, and that failure to fulfill this duty created the losses encountered by Jecon. This is the argument Jecon makes in its supplemental brief in this court.

The principle expressed in OCGA § 51-1-1 which is applicable is explained in Sheppard v. Yara Engineering Corp., 248 Ga. 147, 148-149 (281 SE2d 586) (1981): “ ‘It is axiomatic that a single act or course of conduct may constitute not only a breach of contract but ah independent tort as well, if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him. (Cits.) Such an independent harm may be found because of the relationship between the parties, or because of defendant’s calling or because of the nature of the harm. (Cits.) (Emphasis supplied.) However, not all breaches of contract are also independent torts: “. . . where defendant’s negligence ends merely in nonperformance of the contract and where defendant is not under any recognized duty to act apart from contract, the courts generally still see no duty to act affirmatively except the duty based on — and limited by — defendant’s consent.” [Cit.] In those circumstances, an action in tort may not be maintained for what is a mere breach through non-action or through ineffective performance (which is the same thing) of a contract duty — the duty must arise independent of contract to constitute a tort.’ Thus, to constitute a tort the duty must arise independent of the contract.”

The Alcoa-Jecon contract was formed through a variety of negotiations and purchase orders; Alcoa was to sell the scrap materials to Jecon, which was to convert them and deliver the recycled material back to Alcoa. The Jecon-SLM contract was formed by a series of apparently unwritten communications. No party disputes that Jecon was to cause the scrap materials to be delivered to SLM. Communications between Jecon and SLM concerning the contract indicated that the pot pad shipments might contain other material.

SLM asserts that Alcoa breached a duty to properly care for Jecon’s property (i.e., the scrap metal) by shipping it with an inappropriate amount of debris included. Jecon’s August 22,1988 letter to SLM confirming their contract for recycling indicates that Jecon knew that the scrap metal it was buying from Alcoa could have some debris included. The contract between Alcoa and Jecon was for scrap metal to be recycled. If Alcoa shipped scrap with an amount of debris included that made it impossible to recycle, it constituted a breach of its duty under the contract, not a breach of any duty to care for Jecon property that arose independently of the contract.

Similarly, Jecon and SLM contracted for SLM to receive and process scrap metal. Its failure to do so was not a negligent breach of a duty that arose independent of the contract, but a breach of the essential contractual duty. SLM committed no tort and, even had Alcoa committed one, it could not be considered a “joint tortfeasor” with Alcoa. Jecon was correct in its original complaint; the duty to use proper care in receiving and storing the metal that SLM was to convert arose from the contractual duty to convert the metal that was to be shipped from Alcoa. The fact that the harm suffered by Jecon may have been “single and indivisible” does not convert the breaches of contract duties into a joint tort. Compare Confetti Atlanta, supra. Therefore, SLM can make no claim for contribution from Alcoa.

As all other asserted bases for impleading Alcoa are barred by the statutes of limitation, the court did not err in granting summary judgment.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

Decided December 9, 1994

Reconsideration denied January 5, 1995.

Wiggins & Camp, S. James Tuggle, Kelley C. Park, for appellant.

McGee & Oxford, James C. Carr, Kicklighter & Mayer, Claude M. Kicklighter, Jr., Raymond C. Mayer, for appellee.

       Alcoa settled with Jecon as to any claims that Jecon might assert directly against it. Contribution is a right afforded a joint tortfeasor and is not affected by any settlement between plaintiff and another joint tortfeasor. Thus, if SLM and Alcoa are joint tortfeasors, Alcoa’s settlement with Jecon does not affect SLM’s right to obtain appropriate contribution from Alcoa. See Jackson v. Dyches, 200 Ga. App. 174, 175 (407 SE2d 126) (1991).

       OCGA § 51-12-32 refers to “joint trespassers,” which is synonymous with “joint tortfeasors.” Hyde v. Klar, 168 Ga. App. 64, 65 (308 SE2d 190) (1983).


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A94A2212.
    WHEELER/KOLB MANAGEMENT COMPANY et al. v. PORETSKY et al.
    (453 SE2d 104)
   Andrews, Judge.

On April 26, 1993, Curtis and Sara Poretsky filed a complaint against Wheeler/Kolb Management Company f/k/a Hudgens Management Company and Glynn Mall Suites Hotel, Inc. The complaint alleged that Curtis Poretsky suffered personal injuries when he fell on a stone which was adjacent to a lobby fountain display at the Glynn Mall Suites Hotel. The complaint alleged that the fall was the result of the defendants’ maintenance of a hazardous condition and of defendants’ negligence in failing to warn guests of the danger.

The basic facts necessary to this case are the following. The Poretskys were on a visit to the Okefenokee Swamp when the April 27, 1991 fall occurred. The fall occurred in the lobby of the Glynn Mall Suites Hotel, around a large water fountain display consisting of various small cascading waterfalls. The display also contained a pond which was approximately 17 feet by 19 feet. The entire structure was surrounded by a two-foot stone facade wall.

At his deposition, Poretsky stated that he had observed the fountain at least three times prior to his fall. He saw the fountain at a reception in the lobby area of the hotel on April 26 at which he socialized for at least 45 minutes. He observed the fountain again upon his return to the hotel that same night. He saw the fountain a third time on his way to breakfast on the morning of April 27.

After breakfast on the morning of April 27, Poretsky browsed at a medical exhibit in the area of the fountain. In looking at the exhibit, he walked around the fountain once. Then Mrs. Poretsky called him and alerted him to the fact that a tour bus was ready for boarding. While fixing his attention on the bus, which he could see through the front glass wall of the hotel, Poretsky began walking around the fountain. He struck his foot on a rock which protruded from the wall around the fountain, tripped and fell.

Poretsky stated that he had an unobstructed view of the water fountain and the wall at the time of his fall. He stated that his vision was not impaired at the time of the fall. He had no explanation as to why he was unable to see the protruding area before he fell.

On February 7, 1994, the defendants filed a motion for summary judgment, arguing that they breached no duty to plaintiffs, that there was no hazard present, that Poretsky had equal knowledge of any hazard, and that Poretsky failed to exercise ordinary care for his own safety. With the motion, defendants filed affidavits which established that no incidents involving injuries had occurred in the hotel’s fountain area prior to Poretsky’s fall. The superior court denied defendants’ motion and we granted the application for interlocutory appeal.

Here, in two enumerations of error, Wheeler/Kolb and the hotel argue that the superior court erred in denying their motion for summary judgment on Poretsky’s claim for personal injury and on his wife’s claim for loss of consortium. They argue that they breached no duty owed to the Poretskys and that Curtis Poretsky failed to exercise ordinary care for his own safety. They claim that there was no evidence that the fountain’s stone facade constituted a hazardous condition and that Curtis Poretsky’s knowledge of any allegedly hazardous condition was equal to theirs and bars recovery.

The Poretskys argue that the protruding stone area constituted a defect in the premises for which Wheeler/Kolb and the hotel are liable. They contend that the defect was not patent and that summary judgment was properly denied.

“ ‘The law is clear that the basis for an owner’s liability for injury occurring to another while on the owner’s property is the owner’s superior knowledge of the danger or defect which was the proximate cause of the injury. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. Thus, the basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.’ . . . [Cits.]” Kroger Co. v. Bailey, 212 Ga. App. 568, 569 (442 SE2d 480) (1994); see also Souder v. Atlanta Family Restaurants, 210 Ga. App. 291 (435 SE2d 764) (1993).

Moreover, “[w]here the allegations of the petition show that the defect, if any, in the premises alleged to have caused plaintiff’s injury was so slight that no careful or prudent man would reasonably anticipate any danger from its existence, no cause of action is set forth. Occupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities and trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel.” (Punctuation omitted.) Ferguson v. Columbia Properties, 207 Ga. App. 517, 518 (428 SE2d 422) (1993).

Decided January 6, 1995.

Robert A. Freyre, for appellants.

Gilbert, Harrell, Gilbert, Sumerford & Martin, M. Lynn Frey III, for appellees.

Here, Poretsky had seen the fountain display several times prior to his fall. The Poretskys admit that had he examined the fountain wall he could have seen the rock over which he tripped. There was no evidence that any injuries had previously occurred because of the fountain wall, nor was there evidence that the hotel or Wheeler/Kolb was aware of any danger from the structure. Under these circumstances, it is clear that Poretsky’s knowledge of the alleged “defective condition” and potential danger was equal to that of Wheeler/Kolb and the hotel and that no duty was breached. Accordingly, the superior court erred in denying the motion for summary judgment.

Judgment reversed.

Beasley, C. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A94A2563.
    A94A2595.
    EVANS v. THE STATE. TINCH v. THE STATE.
    (453 SE2d 100)
   Johnson, Judge.

Derek Evans and Christopher Tinch appeal from their convictions, rendered by a judge sitting without a jury, of criminal attempt to enter an automobile.

1. Evans and Tinch claim there was insufficient evidence that they took a substantial step toward entering an automobile. “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. In determining whether there was sufficient proof of a substantial step, we must review the evidence in the light most favorable io the verdict. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crumbley v. State, 207 Ga. App. 33, 34 (427 SE2d 27) (1993). Viewed in this light, the evidence shows Evans, Tinch and Jermaine Corbitt discussed stealing stereo equipment from automobiles; they were in possession of screwdrivers, pliers and various car keys; Tinch drove the trio in his car to a mall parking lot to find a car to break into; they slowly drove through the parking lots of the mall and two other nearby shopping centers for approximately forty-five minutes, but left without entering an automobile because they were being followed by a pickup truck, which they later learned was occupied by undercover police officers.

Contrary to the claim of Evans and Tinch, this evidence was sufficient to support the court’s finding that they took a substantial step toward entering an automobile with the intent to commit a theft. See OCGA § 16-8-18. “In order to constitute the offense of attempt to commit a crime, the accused must do some act towards its commission. Commission means the act of committing, doing, or performing; the act of perpetrating. Mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it. To constitute an attempt there must be an act done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation. Yet it cannot accurately be said that no preparations can amount to an attempt. It is a question of degree, and depends upon the circumstances of each case. The substantial step language of OCGA § 16-4-1 shifts the emphasis from what remains to be done to what the actor has already done. The fact that further steps must be taken before the crime can be completed does not preclude such a finding that the steps already undertaken are substantial. In addition to assuring firmness of criminal purpose, the requirement of a substantial step will remove very remote preparatory acts from the ambit of attempt liability and the relatively stringent sanctions imposed for attempts.” (Citations and punctuation omitted.) Smith v. State, 189 Ga. App. 27, 29-30 (1) (375 SE2d 69) (1988).

Evans’ and Tinch’s discussion regarding the theft of a car stereo and their possession of tools to aid in the commission of such a theft, without more, would not have amounted to an attempt to enter an automobile, but merely would have been preparatory acts not proximately leading to the consummation of the crime of entering an automobile. Evans and Tinch, however, went beyond these remote acts of preparation when they drove to the shopping center parking lots in search of a specific car to enter. Taken as a whole, the acts of Evans and Tinch were done in pursuit of their intent to enter an automobile for the purpose of stealing stereo equipment and those acts directly tended to the commission of that crime. See Adams v. State, 178 Ga. App. 261, 263-264 (2) (b) (342 SE2d 747) (1986); compare R. L. T. v. State, 159 Ga. App. 828 (285 SE2d 259) (1981). The trial court therefore did not err in finding Evans and Tinch guilty beyond a reasonable doubt of criminal attempt to enter an automobile.

2. Evans and Tinch argue the court erred in denying their motion to suppress all evidence seized by the police after the stop of Tinch’s car because the police did not have reasonable suspicion to stop the car or probable cause to arrest them. At the outset, we note the police officers validly stopped the car based on their observation that Tinch was operating it with a defective headlight. See Barnett v. State, 204 Ga. App. 491, 492 (1) (420 SE2d 43) (1992). Moreover, “an officer may conduct a brief investigative stop of a vehicle, [but] such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops of vehicles are analogous to Terry-stops, and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.” (Citations and punctuation omitted.) Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993).

In the instant case, the officers suspected that the occupants of Tinch’s vehicle were loitering or prowling. “A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” OCGA § 16-11-36. The officers’ suspicions that Tinch and his passengers were in the parking lots in a manner not usual for law-abiding citizens and under circumstances causing concern for the safety of motor vehicles in the lots were not unparticularized hunches, but were based on specific, articulable facts. The officers testified Tinch’s car slowly circled through the shopping center parking lots for 45 minutes without parking; none of the car’s occupants entered a store; the car slowed down and its occupants closely looked at a Volkswagen Cabriolet, a type of car that is often stolen; and a high number of automobile thefts and break-ins had occurred in the shopping center parking lots. Because the officers’ stop of Tinch’s automobile was based on reasonable suspicion and not mere caprice, it was valid. See generally Anthony v. State, 211 Ga. App. 622, 625-626 (4) (441 SE2d 70) (1993).

After stopping the car, the officers found a long-bladed screwdriver in Evans’ coat pocket during an appropriate pat-down search of the trio for weapons. “The Supreme Court has ‘recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.’ [Cit.]” Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991). Also during the stop, Evans, Tinch and Corbitt claimed they had been in the mall parking lots for only five minutes, directly contradicting the officers’ personal observations that the trio had been circling the lots for forty-five minutes. The discovery of the screwdriver and the misleading claims of Evans, Tinch and Corbitt as to how long they had been in the parking lots, coupled with their prior suspicious activity, provided the officers with probable cause to arrest the trio for loitering and prowling and for possession of tools for the commission of a crime. See OCGA § 16-7-20; Hansen v. State, 168 Ga. App. 304, 306 (2) (308 SE2d 643) (1983).

After arresting Evans, Tinch and Corbitt, the officers impounded Tinch’s car and conducted an inventory search of it, discovering more screwdrivers, pliers and various car keys. “Inventory searches have been upheld because they serve three legitimate interests: (1) protection of the property while in custody; (2) protection of the police from potential dangers; and (3) protection of the police against claims of lost or stolen property. Justification of such a search, however, is premised upon the validity of the impoundment of the vehicle. Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. Where the impoundment is unreasonable the resulting inventory search is invalid.” (Citations and punctuation omitted.) Williams v. State, 204 Ga. App. 372, 373 (419 SE2d 351) (1992). Here, the impoundment of the vehicle was necessary because all three of its occupants had been arrested; no one remained to take custody of the car and remove it from the side of the interstate. See Hansen v. State, supra at 306 (3). The inventory search of the car was therefore valid. Because the officers’ search and seizure of the vehicle and its occupants were valid, the trial court did not err in denying the motion to suppress of Evans and Tinch. See Castellon v. State, 200 Ga. App. 478, 480 (3) (408 SE2d 493) (1991).

3. Tinch claims the court erred in denying his motion for a new trial because he did not knowingly and intelligently waive his right to a jury trial. “While the defendant must personally and intelligently participate in the waiver of the right to trial by jury, there is no legal precedent which requires that the waiver be done in court.” (Emphasis, citation and punctuation omitted.) Cooper v. State, 189 Ga. App. 286, 287 (2) (375 SE2d 505) (1988). “When the purported waiver of this right is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.” (Punctuation omitted.) White v. State, 197 Ga. App. 162 (398 SE2d 35) (1990). In the instant case, the state presented extrinsic evidence in the form of an affidavit from Tinch’s trial counsel. The attorney swore that he and Tinch discussed the advantages and disadvantages of trial by jury and trial by the court, and Tinch decided to proceed without a jury for tactical reasons. This affidavit was sufficient evidence that Tinch personally, intelligently and voluntarily waived his right to a jury trial. See Sims v. State, 167 Ga. App. 479, 480 (1) (306 SE2d 732) (1983).

Decided January 6, 1995.

Bert W. Cohen, for appellant (case no. A94A2563).

Joan P. Davis, for appellant (case no. A94A2595).

Thomas J. Charron, District Attorney, Debra H. Bernes, Amy H. McHesney, W. Thomas Weathers III, Assistant District Attorneys, for appellee.

Judgments affirmed.

Beasley, C. J., and Andrews, J., concur.


author: Blackburn, Judge.

text:
    A95A0012.
    MARTIN v. THE STATE.
    (453 SE2d 498)
   Blackburn, Judge.

The appellant, Charles Lee Martin, appeals his conviction of driving under the influence of alcohol following a bench trial. In his sole enumeration of error, he asserts that the evidence was insufficient to support his conviction. We disagree and affirm his conviction.

In lieu of a transcript, the appellate record contains the trial court’s summary of the proceedings from recollection in accordance with OCGA § 5-6-41 (g). At trial, Clayton County Police Officer James Scott testified that he was summoned to the apartment complex where Martin resided based upon a complaint that an individual had been seen driving a black automobile within the complex in a reckless manner. Officer Scott could not locate the vehicle during his initial investigation. However, upon his return to the complex approximately 25 minutes later, he discovered such a vehicle.

When the officer questioned Martin about the vehicle, he admitted that he had been driving the vehicle. The officer noticed that Martin was unsteady on his feet and was unable to coordinate his motor and verbal skills. His eyes were bloodshot and a strong odor of alcohol permeated his body and clothing. Martin subsequently submitted to an aleo-sensor test, and the test results were positive. However, Martin refused to submit to field sobriety tests and shouted obscenities at the officer. Based upon his observations, Officer Scott opined that Martin had been drinking alcohol to the extent that it was less safe for him to drive.

This evidence was sufficient to authorize the trial court’s finding that Martin was guilty beyond a reasonable doubt of operating a moving vehicle while under the influence of alcohol to the extent that it was less safe to drive, in violation of OCGA § 40-6-391 (a) (1). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Schoicket v. State, 211 Ga. App. 636 (440 SE2d 65) (1994). Contrary to Martin’s assertions, “[d]riving an automobile while under the influence of alcohol may be shown by circumstantial evidence.” (Citations and punctuation omitted.) Id. at 637.

Decided January 6, 1995.

Richard D. Hobbs, for appellant.

Keith C. Martin, Solicitor, Michael D. Baird, Assistant Solicitor, for appellee.

The trial court was authorized to reject Martin’s testimony and the testimony of his defense witnesses that he had not been drinking prior to operating the vehicle in light of the officer’s testimony as to Martin’s noticeably intoxicated appearance approximately 25 to 30 minutes after Martin was admittedly seen driving the vehicle. As the trial court concluded, it is unreasonable to believe that Martin became intoxicated within a period of time of less than 25 minutes prior to the officer’s arrival. In a bench trial, the trial court, as the trier of fact, weighs the evidence and determines the credibility of witnesses. Dunn v. State, 213 Ga. App. 165 (444 SE2d 812) (1994). The duty of this court is only to determine the legal sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, supra. Id.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A94A1955.
    FOSTER v. THE STATE.
    (453 SE2d 482)
   Andrews, Judge.

Foster was convicted by a jury of the offenses of child molestation against one victim and sodomy against another victim. He appeals from the judgment entered on the convictions.

1. Foster claims the evidence was insufficient to support the child molestation conviction. More specifically he claims there was no evidence proving he committed any alleged act with “the intent to arouse or satisfy [his] sexual desires . . .’’as set forth in OCGA § 16-6-4 (a) as an element of the offense of child molestation.

Evidence showed that Foster lived in the same neighborhood with the victim and allowed the victim and other children to visit his residence to use his swimming pool. The victim testified that on two occasions when she was alone with Foster at his residence, he touched her on her breast and vagina while she was clothed. She testified that she tried to pull away when he did so but he held her. Foster denied the accusation.

“[Wjhether the requisite intent existed [was] a question of fact, to be determined by the jury after considering all the circumstances surrounding the acts of which the accused is charged, including words, conduct, demeanor, and motive. [Cit.]” Smith v. State, 210 Ga. App. 634, 635 (437 SE2d 333) (1993). The evidence was sufficient to support an inference that Foster committed the acts at issue in order to satisfy his own sexual desires and was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Foster committed the offense of child molestation. Grant v. State, 193 Ga. App. 178 (387 SE2d 408) (1989); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Foster contends the trial court erroneously admitted hearsay testimony in support of the sodomy conviction with respect to the other victim.

The indictment charged that Foster committed the offense of sodomy “by inserting his sex organ into the anus of [the victim]. ...” The evidence showed that this victim was 15 years of age at the time of the alleged act and was diagnosed as mildly mentally handicapped. She lived in the same neighborhood with Foster and he paid her a small sum to periodically clean his house. The victim testified that while she was at Foster’s house to do cleaning, Foster touched her when her clothes were off and his clothes were off. She testified that Foster touched her with his hands and with another part of his body. She stated she knew what other part of Foster’s body touched her but testified that she was “scared to say it.” In further testimony, the victim pointed to the genital area of an anatomically correct male doll to indicate what other part of Foster’s body touched her.

Over defense counsel’s hearsay objection, the trial court admitted the testimony of two witnesses who testified to prior statements given to them by the victim. A detective testified that the victim told him that Foster touched her “upper private and lower private part areas” with his “front private parts” and that his “front private part” penetrated her vaginal area and that he “placed his penis to her buttocks area” and that “it hurt.” A school counselor testified that the victim told her that she had sex with a neighborhood man; that he had touched her where her mother said nobody should ever touch her, but that she had kept her pants on.

The trial court admitted the testimony as to the victim’s prior statements under OCGA § 24-3-16, which provides that: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” Because there was evidence that the 15-year-old victim was mildly mentally handicapped with intellectual abilities and social skills equivalent to an average child below 14 years of age, the trial court ruled that OCGA § 24-3-16 applied despite the victim’s chronological age of 15 years.

This was error. It is clear from the plain language of OCGA § 24-3-16 that the legislature intended to limit this exception to the hearsay rule to statements made by a child who was under the chronological age of 14 years at the time of the alleged act. See Couch v. State, 253 Ga. 764, 765 (325 SE2d 366) (1985); Greer v. State, 201 Ga. App. 775, 777 (412 SE2d 843) (1991). Since mental abilities may vary among children of the same chronological age, it may well be possible to produce evidence that a child 14 or more years of age functions mentally on the level of most children under the age of 14 years, or that a child less than 14 years of age has a “mental age” equivalent to most children over 14 years of age. Nevertheless, nothing in OCGA § 24-3-16 evidences a legislative intent that “mental age” be considered in applying the statute. See Couch, supra at 765.

The State contends that even if the trial court erred in admitting the testimony under OCGA § 24-3-16, the testimony as to the victim’s prior statements was admissible as either a prior inconsistent statement by the victim under Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982), or as the victim’s prior consistent statement under Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). Under Gibbons, supra, a prior inconsistent statement made by a witness who takes the stand and is subject to cross-examination is not limited in value to impeachment, but is admissible as substantive evidence of the matter asserted. Under Cuzzort, supra, “where the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible [as substantive evidence].” Edwards v. State, 255 Ga. 149, 151 (335 SE2d 869) (1985).

The portion of the victim’s prior statement to the detective supportive of the sodomy charge, although not directly contradictory of her trial testimony, was inconsistent with her testimony which did not specifically affirm or deny the sodomy allegations made in the indictment. The statement was admissible under Gibbons, supra. Testimony as to other parts of the victim’s prior statements consistent with her trial testimony was admissible under Cuzzort, supra. Accordingly, there was no error in admitting the statements over Foster’s hearsay objection.

The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Foster was guilty of the offense of sodomy because of contact between Foster’s penis and the victim’s anus. Wimpey v. State, 180 Ga. App. 529, 530 (349 SE2d 773) (1986); Smith, supra at 636; Jackson v. Virginia, supra.

Decided December 14, 1994

Reconsideration denied January 9, 1995.

Lillian Neal, for appellant.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellee.

3. The trial court did not err by denying Foster’s motion for a directed verdict.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.


text:
    A94A2313.
    DAY v. THE STATE.
    (453 SE2d 73)
   Andrews, Judge.

Pursuant to a multi-count indictment, Day was convicted in 1990 of six counts of burglary, two counts of rape, and one count of aggravated assault. An order of nolle prosequi was entered on thirteen additional counts of the indictment, including six counts of burglary, three counts of rape, three counts of aggravated assault, and one count of possession of a knife during the commission of a crime. Day was sentenced to consecutive life sentences on the rape convictions. All the convictions were affirmed by this court in Day v. State, 203 Ga. App. 186 (416 SE2d 548) (1992).

In January 1994, Day filed a motion in the trial court contending the consecutive life sentences on the two rape convictions were void and a motion seeking discharge and acquittal pursuant to his written demand for a speedy trial on the thirteen counts on which an order of nolle prosequi was entered. He appeals from the trial court’s order denying the motions.

1. “Although appellant did not challenge the validity of his sentence in his first appeal, if the sentence imposed was a void sentence, then a new and valid sentence can be imposed by the trial judge at any time.” (Citations and punctuation omitted.) Jefferson v. State, 205 Ga. App. 687 (423 SE2d 425) (1992); Gonzalez v. State, 201 Ga. App. 437, 438 (411 SE2d 345) (1991). Day claims the imposition of consecutive life sentences was void because it deprived him of the right to receive a determinate sentence under former OCGA § 17-10-1 (a) (1). Since under that statute the trial judge was authorized to impose sentence “within the minimum and maximum prescribed by law as the punishment for the crime,” there was no error in imposition of the consecutive life sentences. See Jefferson v. State, 209 Ga. App. 859, 862-863 (434 SE2d 814) (1993); OCGA § 16-6-1 (b). The trial court did not err by denying the motion.

Decided December 14, 1994

Reconsideration denied January 9, 1995.

Roger C. Day, pro se.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Assistant District Attorney, for appellee.

2. Day contends his written demand for a speedy trial pursuant to OCGA § 17-7-171 (see Bailey v. State, 209 Ga. App. 390 (1) (433 SE2d 610) (1993)), filed shortly after he was indicted, entitles him to discharge and acquittal on the 13 counts on which an order of nolle prosequi was entered. “The entry of an order of nolle prosequi in a case does not prevent a defendant as a matter of law from claiming the benefits of OCGA § 17-7-[171]. [Cit.]” Ciprotti v. State, 187 Ga. App. 61, 63 (2) (369 SE2d 337) (1988). Nevertheless, to the extent the statute of limitation has run on any of the 13 offenses at issue, there is no threat of re-indictment and the issue is moot. Compare Coker v. State, 181 Ga. App. 559, 560 (353 SE2d 56) (1987); see Kyles v. State, 254 Ga. 49 (326 SE2d 216) (1985); State v. Davis, 201 Ga. App. 533, 534 (411 SE2d 555) (1991). To the extent the statute of limitation has not run on any of the offenses, Day is entitled to a hearing to determine whether or not he should be discharged and acquitted pursuant to the provisions of OCGA § 17-7-171. The trial court’s order denying this motion is reversed and the case is remanded for a hearing to address these issues.

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

Beasley, P. J., and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A2124.
    FUNK et al. v. FULTON COUNTY et al.
    (453 SE2d 82)
   McMurray, Presiding Judge.

This is a total taking condemnation case involving an office condominium. The property was owned by Dr. Sidney A. Funk, who leased it to a professional corporation which he owned and through which he conducted his medical practice. Decisions from an earlier series of appeals in this case are reported as MARTA v. Funk, 263 Ga. 385 (435 SE2d 196); 211 Ga. App. 19 (439 SE2d 517); and 206 Ga. App. 868 (426 SE2d 623). Following the return of the case to the trial court following these appeals, the case was again tried before a jury to determine just and adequate compensation to the two condemnees, Dr. Funk and his corporation. The condemnees appeal the judgment entered on the jury’s verdict. The sole enumeration of error complains of the trial court’s charge to the jury. Held:

Decided December 16, 1994

Reconsideration denied January 10, 1995

Peek & Whaley, James G. Peek, J. Corbett Peek, Jr., for appellants.

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., Jo L. Meeks, Susan B. Forsling, for appellees.

The condemnees objected to portions of the charge which limited the valuation of the interests of the lessor, Dr. Funk, and the lessee corporation to a total no greater than the value of the whole property. This amounted to an application of the “undivided fee rule” which has been held to be contrary to Georgia law. Under the correct rule, the aggregate value of a leasehold and ownership interest is not limited to the fair market value of the subject property. White v. Fulton County, 264 Ga. 393 (444 SE2d 734). We note that the decision in White v. Fulton County, supra, was rendered after the trial court’s judgment in the case sub judice.

While the condemnors have argued that the trial court did not instruct the jury to limit their award to the fair market value of the property, this is simply incorrect. The jury was instructed to award to each condemnee their portion of just and adequate compensation for the property, while just and adequate compensation was defined as fair market value.

The absence of any evidence or claim of “unique” value to either of the condemnees does not alter the applicable rule. The concept of “uniqueness” and the concept expressed in White v. Fulton County, supra, are related only in that they define separate sets of circumstances under which condemnees may receive more than fair market value as just and adequate compensation. The goal in each instance is to compensate the condemnee for what he has lost as opposed to measuring the taking by what the condemnor has gained. In the instance of a “unique” property the additional compensation is predicated on value of the property, in excess of fair market value, which is peculiar to the owner. This is a separate concept from that accepted in White v. Fulton County, supra, which is an acknowledgment that where ownership of property is fragmented, the sum of the values of the separate estates may exceed the value of the unencumbered whole. The trial court erred in instructing the jury so as to limit the sum of the awards to the two condemnees to the fair market value of the property.

Judgment reversed.

Pope, C. J., and Johnson, J., concur. Smith, J., disqualified.


author: Beasley, Presiding Judge.

text:
    A94A2294.
    GEORGIA NEUROSURGICAL CLINIC, P.C. PROFIT SHARING PLAN et al. v. ROCKDALE COUNTY.
    (453 SE2d 88)
   Beasley, Presiding Judge.

In order to construct and operate a reservoir, Rockdale County filed a condemnation petition to acquire fee simple title to approximately 98.62 acres and a buffer easement in 8.78 acres within a tract owned by appellant. The special master entered an award in the amount of $309,030 representing the fair market value of the property taken. On appeal by the property owner, the jury returned a verdict in the amount of $292,211. The appeal is from the final judgment and the order denying the property owner a new trial.

1. It contends that the court erred in denying it the right to cross-examine the county’s real estate expert Carr regarding his appraisals of similar property on behalf of the county.

The property owner was cross-examining Carr concerning other property which adjoined the subject property as well as the reservoir and which was slated to be acquired by the county. After Carr testified that he did not know whether this property had been acquired, the property owner asked whether he had been employed by the county to appraise it. The court sustained an objection by the county to the question before it stated the ground for objection.

In moving for a new trial because of the court’s refusal to allow Carr to answer this question, the property owner submitted an affidavit executed by the adjoining owner. He testified that his property was purchased by the county as replacement wetlands to mitigate the loss of wetlands destroyed by the reservoir project (see Division 2, infra), that the agreed per-acre value was approximately twice as high as the value placed on the subject acreage by the jury, and that the property was appraised by Carr’s firm. In this case, Carr testified that the presence of property within a flood plain (i.e., wetlands) on the subject tract was a significant factor detrimental to its value. The property owner argues that it had a right to cross-examine Carr to ascertain whether he had employed inconsistent appraisal methods or arrived at inconsistent opinions as to the value of similar property.

The county responds that the testimony sought to be elicited by the question was inadmissible under Jordan v. Dept. of Transp., 178 Ga. App. 133 (1) (342 SE2d 482) (1986). Jordan recognizes that the courts of this State have long held that sales of land to condemning authorities are inadmissible as evidence in condemnation proceedings on the issue of the value of the land sought to be condemned. “ ‘(T)his general rule (is) based upon the consideration that in such transactions neither party is necessarily free from compulsion — the necessity to acquire as to one party and the positive necessity to give up on the part of the other.’ ” Id. However, the testimony sought by the property owner concerned Carr’s appraisal of the other property, not its sale price to the condemnor. Consequently, reliance upon Jordan is misplaced.

The county also argues that the property owner could have presented the desired evidence by calling the adjoining property owner as its own witness. While that is true, it begs the question, and the law grants a party the right to a thorough and sifting cross-examination of opposing witnesses. OCGA § 24-9-64. No precedent is offered which declines to find harmful error in the denial of the right of cross-examination on the ground that the complaining party could have introduced the testimony by other means.

As in Harrison v. Regents of the University System of Ga., 99 Ga. App. 762, 766 (1) (109 SE2d 854) (1959), the issue does not involve the court’s discretion in curtailing prolonged cross-examination. Instead, it centers on the court’s erroneous refusal to permit the witness to answer a question relating to the witness’ appraisal of other similar property which was pertinent to the issue of the value of the condemned property.

2. Also challenged is the court’s denial of the right to cross-examine Carr on whether efforts by the State to purchase wetlands for mitigation purposes influenced the value of wetlands in Rockdale County.

The property owner was cross-examining Carr as to whether recently-enacted federal law requiring replacement of destroyed wetlands enhanced the value of property previously unusable but now suitable for wetland replacement. Carr stated that he could not testify on land prices but could state that there are parcels which had very little utility before but have value now for this purpose. Carr was asked if he knew whether the State of Georgia was looking for such property in Rockdale County. The court sustained the county’s objection, again before it stated the ground.

The county argues that the testimony sought to be elicited concerned the acquisition of wetland property by the State and was likewise inadmissible under Jordan. To the contrary, the question was calculated to elicit evidence that such a demand by the State exerted an upward influence on the value of such property. This would be relevant to the material issue of the value of the condemned property and should have been allowed.

3. The property owner contends that the court erred in permitting the county to display to the jury a plat showing the layout of the portion of the tract not being condemned as well as the portion being condemned for a buffer easement.

The court ruled that the county could use the plat only for the purpose of showing the use to which the buffer zone could be put. Evidence of consequential benefits to the portion not being condemned is generally not admissible because consequential damages to that portion are not sought. Ivy Inn v. MARTA, 255 Ga. 557, 559 (340 SE2d 600) (1986). However, the evidence in controversy was relevant to a determination of the value of the land condemned for a buffer easement. The court did not err in allowing it despite its tendency to show that the remainder was benefited by some unspecified amount. Merritt v. Dept. of Transp., 147 Ga. App. 316 (1) (248 SE2d 689) (1978).

The property owner did not object at trial to admission of the plat on the ground that it was not properly authenticated. Therefore, this ground is not reviewable. Ramey v. Leisure, Ltd., 205 Ga. App. 128, 131 (2) (421 SE2d 555) (1992).

4. The property owner contends that the court erred in denying its motion in limine regarding comparable sales and in admitting evidence of other land sales in support of Carr’s expert opinion as to the value of the subject property. It argues that the other sales were not comparable since they were not made at or near the time its property was taken in December 1993.

The other sales involved land adjacent to the subject property sold in July 1986, the property owner’s purchase of the subject property in two transactions in July 1987, reservoir frontage sold in 1988, property on the back of the reservoir sold in 1989, a sale in the area of the reservoir in 1989, and another sale in 1990. These sales of comparable property and of the subject property were not too remote, legally speaking, to be relevant. Thus, the denial of the property owner’s motion in limine was not error and the court did not abuse its discretion by permitting the admission of this evidence. See generally Hollywood Baptist Church of Rome v. State Hwy. Dept., 114 Ga. App. 98, 100 (4) (150 SE2d 271) (1966).

5. The property owner contends that the court erred in admitting rebuttal evidence as to the fair market value of the property condemned without any request by the county that it be allowed to reopen its case.

After both parties had rested, the county called a witness to rebut the testimony of one of the property owner’s experts that he had appraised the subject property through separate valuations of dry land, creek area, and flood plain. The court ruled that the county’s witness could give rebuttal testimony as to his valuation of the constituent parts of the subject property, but not to the valuation of the overall tract since the county had already presented that evidence. This action did not constitute legal error.

Decided December 19, 1994

Reconsideration dismissed January 10, 1995.

W. Dan Greer, for appellants.

Maddox, Starnes & Nix, John A. Nix, Thomas A. Bowman, Michael S. Waldrop, for appellee.

Judgment reversed.

Andrews and Johnson, JJ., concur.


author: Smith, Judge.

text:
    A94A1612.
    EQUIFAX SERVICES, INC. v. EXAMINATION MANAGEMENT SERVICES, INC. et al.
    (453 SE2d 488)
   Smith, Judge.

Appellant Equifax Services, Inc. (Equifax) brought suit against competitor Examination Management Services, Inc. (EMSI) and former employee Edward A. Edge for claims related to the taking and misappropriation of certain lists of customers and “foreign correspondents” by former Equifax employees hired away by EMSI. Count 1 alleged breach of contract by Edge of a nondisclosure agreement. Count 2 alleged that EMSI interfered with Equifax’s contractual relations with Edge by encouraging him to breach the nondisclosure agreement. Count 3 asserted a claim for misappropriation of trade secrets. Count 4 alleged the common law tort of unfair competition. Count 5 alleged a conspiracy between EMSI and former employees of Equifax to misappropriate Equifax trade secrets. The trial court granted summary judgment to appellees on all counts. Equifax appeals the court’s judgment as to all counts except the unfair competition claim.

Equifax is a provider of a variety of information products and services, including insurance claims investigations. Such investigations are handled on a national and international basis. In handling international claims investigations, Equifax utilizes third-party foreign investigators to assist them due to language, cultural, regulatory, and legal differences.

Equifax has developed and maintains a list of foreign investigators known as the “Equifax Foreign Correspondents List.” The list contains the names, addresses, contact persons, telephone numbers, and fax numbers of Equifax foreign correspondents around the world. Equifax claims that the list was developed over the course of 50 years, that it gives Equifax a competitive advantage, that none of its competitors has a list of the same quality and depth, and that no competitor could establish by proper means even a substantial portion of the information contained on the correspondents list. Many correspondents on the list work exclusively for Equifax. Equifax further asserts that it has never freely distributed the correspondents list either within or outside the company; that while some of the information was shared with high-level executives of some of Equifax’s clients, the list itself was never shown to any outside party, client or otherwise; and that within Equifax, the list has been treated confidentially and has been disseminated only to those who needed the information.

Equifax has also developed “customer lists.” These exist in a variety of forms, including a computer database, microfiche records, and on employees’ Rolodexes. Equifax claims that these lists contain actual and potential customers, are not generally known to the public, are not known to Equifax’s competitors, are extremely valuable to Equifax, give Equifax a competitive advantage, are not readily ascertainable by any proper means, and would give competitors obtaining one a competitive advantage. Equifax asserts that its employees recognized the confidential nature of these lists, that they are “secret,” and that Equifax has taken reasonable steps to preserve their secrecy.

In late 1985 and early 1986, Equifax instituted a program whereby all Equifax employees were required to sign a “confidentiality and assignment agreement” as a condition of future employment. Equifax maintains that all of its employees have been required to sign the agreement since the program began and that two employees who refused to sign the agreement were terminated in 1986. As examples of “confidential information,” the agreement specifies, among other things, “customer lists” and “personnel lists.”

In late 1992, EMSI initiated an effort to create a national and international insurance claims division to compete directly with Equifax. Toward that end, EMSI lured away several Equifax employees. Among them were high-level employees Sam Lawrence and appellee Edge. In the process of soliciting Lawrence and Edge, EMSI representatives made it clear that they were to take nothing with them from Equifax.

It is undisputed that after Lawrence retired from Equifax and began working for EMSI, Lawrence’s Rolodex, a database residing on a computer Lawrence took with him to EMSI, and Equifax microfiche records containing a list of Equifax customers were used by Lawrence’s secretary to create a computerized customer list that was then printed and sent to EMSI headquarters in Dallas, Texas, to be used in turn to create an initial mailing list.

It is likewise undisputed that when Edge left Equifax to work for EMSI he took with him a copy of Equifax’s “Foreign Correspondents List,” that he created a condensed list for his own use from the Equifax list, and that he notified each correspondent on the condensed list of his move from Equifax to EMSI.

1. Equifax argues that its “confidentiality and assignment agreement” is enforceable, and therefore the trial court erred in granting summary judgment on its claims for breach of contract and tortious interference with contractual relations.

(a) As it applies to the nondisclosure provision, we disagree. The agreement provides, in pertinent part, as follows: “I will not release or disclose any . . . confidential information during the course of my employment with Equifax or at any time thereafter.” In Thomas v. Best Mfg. Corp., 234 Ga. 787, 788 (1) (218 SE2d 68) (1975), the Supreme Court held: “To restrict an employee from utilizing the experience gained and using information not designated as trade secrets and attempting to extend the restriction beyond the employer’s business in perpetuity to that of its clients, customers, consultants, licensees or affiliates without geographic restriction reaches beyond the scope permitted in Georgia in terms of time, territory, and activities protected. Although the employer is attempting to protect confidential information relating to his business, the restraint is so broad as to be unreasonable.” (Emphasis supplied.)

Since the lists in dispute here are designated as “confidential information” rather than trade secrets under the contract, Thomas is applicable, and the contractual restraint is unenforceable. Equifax attempts to avoid this rule by relying on OCGA § 10-1-767 (b) (1), which in part provides that “a contractual duty to maintain a trade secret or limit use of a trade secret shall not be deemed void or unenforceable solely for lack of a durational or geographic limitation on the duty.” This reliance is misplaced. Under the confidentiality agreement, “ ‘trade secret’ information” is strictly limited to “the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, or improvement that is valuable and secret.” Trade secrets as defined in the agreement are not at issue here. Moreover, this agreement does not merely fail to add a durational limitation to an otherwise enforceable agreement (compare Howard Schultz &c. v. Broniec, 239 Ga. 181, 187-188 (236 SE2d 265) (1977)); it affirmatively and unequivocally states that confidential information will not be disclosed by the employee “at any time” after his course of employment.

(b) However, this does not end the matter. The agreement also provides: “All information supplied to me by Equifax shall be used by me exclusively for the purpose of performing those services for which Equifax has agreed to employ me. Upon termination of the employment relationship regardless of cause, I will surrender to Equifax in good condition any records or information provided to me by Equifax and will not keep any copies, summaries or photocopies thereof.”

Such a clause has been upheld as a valid means of protecting documented confidential information of an employer even though the language used reflects no limits as to “time, territory or activity.” Nunn v. Orkin Exterminating Co., 256 Ga. 558, 560 (2) (350 SE2d 425) (1986). The “Foreign Correspondents List” retained by Edge was clearly “information provided to [him] by Equifax” that Edge covenanted to surrender to Equifax in good condition upon termination of his employment. Assuming Edge assented to this provision, he essentially acknowledged that he was not entitled to retain “copies, summaries or photocopies” of any information supplied to him by Equifax. Such a provision does not in any way prevent Edge from using the “aptitude, skill, dexterity, . . . mental ability, and such other subjective knowledge as he would have obtained while in the course of the employment,” and it is therefore not invalid or unreasonable. Nunn, supra.

Equifax was unable to produce the agreement allegedly signed by Edge, and Edge acknowledges only that he “could have signed it but does not recall signing it.” This merely raises an issue of fact as to whether Edge in fact executed the agreement. There is no dispute regarding the contents of such an agreement; appellees readily assert that Equifax “askfed] its 12,000 employees around the world to sign an identical form agreement.” (Emphasis supplied.) It is solely the existence of an agreement between Equifax and Edge that is at issue.

In this regard, Equifax presented the affidavit of the former “Secretary to the Atlanta Regional Office,” who stated that she verified the existence of Edge’s confidentiality agreement in his personnel file in June 1992, and that the agreement remained in the file when she returned it to the proper filing cabinet. Appellees challenge this evidence solely because “no evidence was presented [as] to the contents of the agreement,” despite their assertion that all such agreements are identical.

“ ‘While it is true that secondary evidence as to the contents of an alleged lost or destroyed (paper) should not be admitted until it is shown that a duly executed original once existed (cits.), yet “where no direct evidence of the execution of a written instrument is attainable, its execution may be proved by the circumstances.” (Cit.)’ [Cit.]” Jefferson Pilot Fire &c. Co. v. Prickett, 176 Ga. App. 810, 814 (338 SE2d 19) (1985). Also, “ ‘[i]f the circumstances will justify a well grounded belief, that the original paper is kept back by design, no secondary evidence ought to be admitted; but when no such suspicion attaches, and the paper is of that description that no doubt can arise as to the proof of its contents, there can be no danger in admitting the secondary evidence.’ ” Id. at 813. See also OCGA § 24-5-21.

The transcript of the summary judgment hearing reveals the trial court was concerned that Equifax could not prove that Edge himself removed the agreement from his personnel file. However, in the absence of any suggestion that the contents of such an agreement might differ from that of agreements signed by other employees, it is irrelevant whether Edge or someone else might have removed the agreement. Equifax established a jury question with respect to whether Edge executed the confidentiality agreement allegedly required for his continued employment. The trial court therefore erred in granting summary judgment to Edge as applied to the provision requiring the return of documents.

(c) Equifax ostensibly combines its argument as to its enumerations based on breach of contract and tortious interference with contractual relations. However, regarding the latter issue, Equifax presents no argument other than to assert that reversal on the breach of contract claim against Edge mandates reversal on the claim against EMSI. This does not follow. Since no argument is presented, Equifax’s separate enumeration is deemed abandoned. Court of Appeals Rule 15 (c) (2). However, we note that Equifax freely admits that EMSI representatives instructed Edge and Lawrence not to bring anything from Equifax with them when they started work for EMSI, and we are aware of no evidence contradicting that assertion. Our review of the record in addressing other enumerations has revealed no evidence upon which a claim for tortious interference with Equifax’s contractual relations might be based.

2. Equifax’s trade secret misappropriation claim is governed by the Georgia Trade Secrets Act of 1990 (GTSA), OCGA § 10-1-760 et seq. Under the Act, in its broadest sense, “ ‘[t]rade secret’ means information . . . which: (A) [d]erives economic value . . . from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (B) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (Emphasis supplied.) OCGA § 10-1-761 (4).

Equifax asserts it has taken “numerous steps” to maintain its trade secrets. However, a careful reading of Equifax’s argument on appeal reveals that it is essentially relying on a single “step” — the fact that it required each of its thousands of employees to sign an identical “confidentiality and assignment” agreement in 1985 and 1986. Compare Avnet, Inc. v. Wyle Labs., 263 Ga. 615 (437 SE2d 302) (1993) (nondisclosure agreements were required of “certain employees” to whom customer lists had been disclosed specifically to keep the information secret). The inquiry is therefore whether the single step taken by Equifax in 1985 and 1986 could alone be described as sufficient under the circumstances to establish, preserve, and maintain the “trade secret” status of the lists at issue under OCGA § 10-1-761 (4) (B) into the indefinite future.

We first note that Equifax specifically provided in the agreement that its customer and personnel lists are considered “confidential information,” not trade secrets. Since an action for misappropriation of trade secrets is not dependent on the existence of a written contract, it would appear that it is the emphasis on the importance of secrecy in the agreement that is most relevant here, and not the characterization of the lists as something other than “trade secrets.” See OCGA § 10-1-763 (c); Thomas v. Best Mfg. Corp., supra. However, we cannot ignore the fact that the covenant to keep such information secret is overbroad, unenforceable as written, and was consented to by Edge (if at all) several years prior to the events at issue; nor can we ignore the fact that Equifax relies on the agreement exclusively to establish that reasonable steps were taken to maintain the secrecy it desires.

Equifax essentially takes the position that, based on the agreement alone, it can reasonably expect its exiting employees to take great pains to leave behind anything that might be reasonably covered under the confidentiality agreement. That the trial court found the quality of information at issue to be such that it “was publicly ascertainable without using misappropriation or other illegal means” reveals the inherent weakness of Equifax’s position. Even with the confidentiality agreement fresh in mind, a self-interested employee may certainly be expected to reach a similar conclusion in the absence of further efforts by Equifax to clarify the matter.

We do not hold that requiring employees to sign confidentiality agreements alone is never sufficient to constitute a reasonable step to maintain the secrecy of information alleged to have been misappropriated. On the contrary, the formality involved in requiring an employee to sign a nondisclosure agreement designed to protect specific information may well be the only reasonable step that can be taken to document the employer’s position and to serve as a caution against indiscretion. However, a finder of fact could not reasonably conclude that any lingering cautionary effect of the agreement relied upon by Equifax was alone sufficient to ensure nondisclosure of the information contained on the customer and correspondents lists. Under the circumstances presented, Equifax failed to take reasonable steps to enforce its confidentiality agreement and ensure the continuing secrecy of the information on the lists at issue. Therefore Equifax is not entitled to seek recovery under the specific provisions of the Trade Secrets Act.

3. Equifax claims error in the grant of summary judgment to appellees on its claim for conspiracy by EMSI and others to misappropriate trade secrets. This enumeration must fail for much the same reasons as noted in Division 1 (c). In support of this enumeration, Equifax merely argues that misappropriation of trade secrets did occur, that the complaint alleges an actionable conspiracy, and that a corporation may be a party to such a conspiracy. Equifax fails even to suggest, however, that there is evidence giving rise to a material issue of fact on whether EMSI was actually involved in such a conspiracy. The evidence of record suggests only that EMSI was the unwitting beneficiary of the actions of former Equifax employees and that those actions were actively discouraged by EMSI. We find no error.

4. Nothing in this opinion is meant to imply that Equifax has no right of action against EMSI as a result of the alleged misappropriation by its employees of data contained on microfiche and in a computer database developed by Equifax. Although nonparty Lawrence suggests that he purchased these items when he purchased his office equipment at retirement, Equifax hotly disputes that claim. Whether customer information contained in archival or electronic formats developed by Equifax for internal use is available from other sources in the public domain is arguably irrelevant, since in any event the computer database and microfiche were clearly the property of Equifax if they were not actually sold to Lawrence upon his retirement.

The virtue of establishing that a purely intangible thing is a “trade secret” of an employer is that by doing so the employer establishes that the thing is its property. The motivation for doing so should be obvious. “A person who leaves the employment of another has a right to take with him all the skill he has acquired, all the knowledge he has obtained, and all the information that he has received, so long as nothing is taken that is the property of the employer. Trade secrets are the property of the employer and [like any property of the former employer] cannot be taken or used by the employee for his own benefit. ...” (Emphasis in original; citation and punctuation omitted.) Avnet, Inc. v. Wyle Labs., supra, 263 Ga. at 618 (2).

There is some authority for the proposition that non-specialized customer lists are not property under Georgia law and therefore an employer may not prevent an employee from using such a list in the absence of a contract. Durham v. Stand-By Labor &c., 230 Ga. 558, 563 (2) (b) (198 SE2d 145) (1973); Contractors’ Bldg. Supply v. Gwinnett Sash & Door, 199 Ga. App. 38, 40 (2) (403 SE2d 844) (1991). However, it does not follow that a rule of questionable origins should be extended to customer information that may be found on more sophisticated media such as an employer’s microfiche or in its computer databases.

Decided December 20, 1994

Reconsideration denied January 11, 1995

Powell, Goldstein, Frazer & Murphy, James W. Hawkins, W. Dennis McKinnie, Gil Y. Burstiner, for appellant.

Once it is acknowledged that employees of EMSI have used Equifax’s microfiche and computer database to create mailing lists (and assuming that those items were not sold to former employee Lawrence), the question whether EMSI could have used other means in the public domain to achieve the same end is relevant only to the extent to which EMSI has been unjustly enriched by its employees’ misappropriation of the corporate assets of competitor Equifax.

It is difficult to ignore the extent to which a case for misappropriation of Equifax’s property, though not properly characterized as trade secrets, has been established in the course of Equifax’s attempt to prove the confidential character of the information contained on its proprietary computer database and microfiche. However, we likewise cannot ignore the fact that Equifax has litigated this action as if property rights in the items at issue exist if and only if they may be characterized as embodiments of certain Equifax trade secrets. Consequently, the trial court did not err in failing to consider sua sponte a misappropriation theory independent of the Georgia Trade Secrets Act as one that may be “ ‘fairly drawn from the pleadings and the evidence. . . .’” Centennial Life v. Smith, 210 Ga. App. 194 (435 SE2d 498) (1993).

Judgment affirmed in part and reversed in part.

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

Kirwan, Goger, Chesin & Parks, Robert B. Remar, Susan M. Garrett, for appellees.

       It is undisputed that such items have been destroyed or otherwise disposed of, and are no longer in EMSI’s possession.

        Durham cites Taylor Freezer Sales Co. v. Sweden &c. Corp., 224 Ga. 160 (160 SE2d 356) (1968), as a case holding that customer lists are not property under Georgia law. However, the court in that case emphasized that “ ‘the petition does not allege that the defendant has a list of the plaintiff’s customers which he procured while an employee and which he is using to the plaintiff’s detriment, and [therefore] those cases holding such lists to be confidential information are not applicable here.. ..’” Id. at 165 (quoting Vendo Co. v. Long, 213 Ga 774, 778 (102 SE2d 173) (1958)). These cases appear to hold only that “equity will not enjoin the mere solicitation of business by a former employee.” That is a question quite different from whether employers have property rights in their own customer lists such that former employees are not entitled to possess and use them to their former employer’s detriment. The Supreme Court has likewise interpreted Taylor Freezer Sales in a manner contrary to that attributed to the case in Durham, supra. See Avnet, Inc. v. Wyle Labs., 263 Ga. at 619.

        Contractors’ Bldg. Supply does not appear to be a case in which customer “lists” were at issue. Moreover, the case cites Nager v. Lad 'n Dad Slacks, 148 Ga. App. 401, 402 (1) (251 SE2d 330) (1978), as support for the proposition that “customer lists are not confidential information.” However, Nager holds only that a former employee “ ‘may ... go to customers whom he procured for the former employer and endeavor to persuade them to change their trade to his advantage. (Cit.)’ [Cit.]” Id. Nager does not stand for the proposition that a former employee is entitled to use proprietary tools of the trade supplied to him by his former employer, and which he is obligated to return at the termination of his employment, as a means toward that end.


author: Andrews, Judge. Beasley, Chief Judge,

text:
    A94A2501.
    MYERS v. THE STATE.
    (453 SE2d 106)
   Andrews, Judge.

After a bench trial, Sandra Myers was convicted of possession of marijuana with the intent to distribute.

Viewing the evidence in the light most favorable to the verdict, it was that in June 1993, United States Postal Inspector Martin Kirkland was involved in an investigation of contraband being sent through the mail. Kirkland requested the postmaster in Lindale to notify him of packages that might contain controlled substances.

On June 4, Kirkland was notified that a parcel had come into the Lindale post office which was suspicious. The package, which was an overnight express one, had been examined by a team using a drug dog. The package was addressed to Myers, and also listed Myers as the return addressee. The package was taped with heavy black tape and was leaking a white powder.

Kirkland directed the postmaster, Betty Holtzendorf, to go to Myers’ home and tell her that she could pick up her express mail. When Holtzendorf went to Myers’ home, Myers indicated that she was expecting a package and that she would come get it. When Holtzendorf returned to the post office, she looked out the window and saw Myers driving towards the building. Nevertheless, Myers did not come into the post office to retrieve her package. Holtzendorf testified that during this period, a patrol car was visible from the road and that Myers later admitted that she had seen it.

Because Myers had not picked up her package, Kirkland decided to take it to her residence. Kirkland and Detective Shuman of the Bryan County Sheriff’s Department, who had joined Kirkland at the postal inspector’s office, went to Myers’ home. Myers did not accept delivery of the package and she stated that she did not want to sign for it. Kirkland testified that he told Myers that he needed to get the parcel delivered to resolve whether it contained narcotics. In response, Myers said that she would accept the package, although she would not sign for it. She stated that she would give Kirkland permission to open the parcel so that the matter could be resolved.

Kirkland opened the package and found two baggies containing a green leafy substance later identified as marijuana and an unknown white powder. One bag of marijuana weighed 65.8 grams; the other weighed 62.9 grams.

At this point, Myers was read her rights. She then stated that she had met an inmate, Roy Morris, through a Friend Finder and that they had started corresponding with each other by mail. The friendship developed and led to Myers visiting Morris at the prison. She stated that she received money in the mail from people she did not know and that she kept a list of these people. She stated that she spent the money to pay her bills. She admitted that Morris had told her to expect the package. She stated that other females slipped drugs into the prison, but she denied that she did this.

Myers then consented to a search of her residence which revealed a ledger of money transactions. Found in her vehicle were plastic sandwich bags, a pair of pliers, a pair of scissors, a roll of black tape, some cotton balls, a knife, a jar of vaseline, several balloons and a set of penny weights type scales.

Myers was taken to the Bryan County Sheriff’s Department and she was again advised of her constitutional rights. At this point she signed a form waiving her rights, which is included in the record here. She then gave a written statement in which she stated: “I met Roy Morris through an ad in the Tell-N-Sell and started corresponding by mail or telephone. Went to meet him on the first time on November 2nd, 1991. After I had known him for awhile he convinced me to accept money orders through the mail, starting February 25th, 1993. I in return cash them and give cash money to Rosa Morris. She takes the money to buy marijuana, to take in to her husband (Randy Morris). He turns around and sells it inside prison (Reidsville). Money is sent to me to pay bills with.”

Myers testified at trial and denied that the package was hers. Her sister also testified.

After hearing the evidence and making findings of fact, the court found Myers guilty.

1. In her first enumeration of error, Myers claims that the trial court erred in denying her motion for a directed verdict of not guilty since she had neither actual nor constructive possession of the drug. She contends that there was no evidence to connect her to the contraband and that she never took physical control of the package. She contends that the handwriting on the package was not hers; that no drugs were found at her residence; and that the allegedly drug-related items found in her vehicle and residence were not for drug-related purposes.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “A reasonable hypothesis as used in this Code section refers only to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; it does not mean that the act might by bare possibility have been done by someone else.” (Citations and punctuation omitted.) Bean v. State, 204 Ga. App. 242 (1) (418 SE2d 798) (1992).

The standard of reviewing the denial of a motion for directed verdict is that from Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478) (1994). Here, we find that a rational trier of fact could find from the evidence adduced at trial proof of Myers’ guilt beyond a reasonable doubt.

2. In her second enumeration, Myers argues that the trial court erred in admitting into evidence her statements, since they were not given voluntarily. Relying on her own testimony, she claims that her statements were the product of threats and promises.

The court conducted a Jackson-Denno hearing on the admissibility of the two statements which Myers gave to the police. Both Kirkland and Shuman denied that they had threatened or coerced Myers in any manner. Kirkland stated that when she asked him, he told her the possible penalties for the violation. Both men testified that Myers was read her rights at her residence and at the station and that she appeared to understand her rights and that she voluntarily agreed to talk.

“A trial court’s findings as to factual determinations and credibility relating to the admission of in-custody statements will be upheld on appeal unless clearly erroneous.” (Citations and punctuation omitted.) Johnson v. State, 188 Ga. App. 499, 500 (1) (373 SE2d 284) (1988) . From our review of the record, we find that the evidence presented supported the trial court’s finding that Myers’ statement was freely and voluntarily made and that she clearly and affirmatively waived her rights. There was no error in admitting the statements. See generally Harris v. State, 190 Ga. App. 343 (3) (378 SE2d 912) (1989); Askew v. State, 193 Ga. App. 61 (3) (387 SE2d 25) (1989).

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.

Beasley, Chief Judge,

concurring specially.

I concur fully in Division 2. I concur in Division 1 because, although not stated in the majority opinion, there was evidence that, as to the element of possession, defendant constructively possessed the marijuana by giving permission to open the package containing it, after she had been told it could not be opened without her consent since it was addressed to her. Thus she exercised control over the package which she knew contained marijuana, even though she never actually physically possessed it. Constructive possession is sufficient to constitute possession. Brooks v. State, 206 Ga. App. 485, 486 (1) (425 SE2d 911) (1992). Exercise of control over an item is sufficient to constitute constructive possession. Id.

Decided January 11, 1995.

Harris Odell, Jr., for appellant.

Dupont K. Cheney, District Attorney, Michael T. Muldrew, J. Stephen Archer, Assistant District Attorneys, for appellee.


text:
    A94A2560.
    YELLE v. U. S. SUBURBAN PRESS, INC.
    (453 SE2d 108)
   Andrews, Judge.

The trial court denied Yelle’s motion to dismiss asserting insufficiency of service of process and granted summary judgment in favor of U. S. Suburban Press, Inc. (Suburban Press). Yelle appeals.

The sheriff’s return of service form reflects that the complaint filed by Suburban Press against Yelle was not served personally, but was served on “defendant Michael Yelle by leaving a copy of the action and summons at [Yelle’s] most notorious place of abode in this County ... [in the] hands of [Yelle’s wife], domiciled at the residence of defendant.” Pursuant to OCGA § 9-11-4 (d) (7), in the absence of personal service on the defendant, the defendant may be served with the action “by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. ...” Yelle contends that service was not properly accomplished pursuant to OCGA § 9-11-4 (d) (7). Yelle’s answer to the complaint, filed pro se, was sufficient to raise the defense of insufficient service of process. OCGA § 9-11-12 (b). His subsequent request to opposing counsel for an extension to respond to discovery and his response to Suburban Press’ motion for summary judgment did not constitute a waiver of this defense. Garrett v. Godby, 189 Ga. App. 183, 185 (375 SE2d 103) (1988). “[T]here is no authority to dispense with the clear requirements of OCGA § 9-11-4 (d) (7) merely because the defendant may otherwise obtain knowledge of the filing of the action.” Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108) (1989).

In support of his motion to dismiss, Yelle submitted affidavits to rebut the allegations in the sheriff’s return of service. Yelle’s affidavit stated that the residence where service was made was not his usual place of abode or dwelling house and that, at the time of service, he resided in the State of Washington. The affidavit of Yelle’s wife stated that the copies of the action were handed to her by the sheriff at the residence of her daughter, where she was visiting at the time, and that she did not reside there. Yelle’s daughter submitted an affidavit stating that the sheriff served the action at her residence; that neither her mother nor her father, Yelle, resided there at the time service was made, and that her mother was visiting there when she was handed copies of the action. A business associate of Yelle submitted an affidavit stating that, at the time of service, Yelle and his wife resided in Washington. The only evidence submitted by Suburban Press for consideration on the motion to dismiss was an affidavit from counsel stating that Yelle had acknowledged receipt of discovery filed in the action and had failed to timely respond.

The sheriff’s return of service constitutes prima facie proof of the facts recited therein, but it is not conclusive and may be traversed by proof that such facts are untrue. Webb v. Tatum, 202 Ga. App. 89, 91 (413 SE2d 263) (1991). “When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service. The return can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.” (Citations and punctuation omitted.) Nucor Corp. v. Meyers, 211 Ga. App. 787, 788 (440 SE2d 531) (1994).

Clearly, the return of service form shows the sheriff had direct, personal knowledge that copies of the action and summons were handed by the sheriff to Yelle’s wife at the residence at issue. The affidavits submitted by Yelle do not dispute these facts recited in the return of service. Compare Adair Realty Co. v. Parrish, 192 Ga. App. 681 (385 SE2d 770) (1989) (defendant’s affidavit disputed return of service showing personal service on the defendant). However, the return of service does not show that the sheriff had direct, personal knowledge that the residence where service was made was Yelle’s dwelling house or usual place of abode or that Yelle’s wife, to whom the action was handed, resided there. The affidavits submitted by Yelle disputing these allegations in the return of service were based on the direct, personal knowledge of the affiants and were sufficient to carry Yelle’s burden to overcome the prima facie presumption that service was properly made in accordance with OCGA § 9-11-4 (d) (7). The burden was shifted to Suburban Press to provide additional evidence in support of proper service. Since Suburban Press provided no additional evidence, the affidavits submitted by Yelle were uncontradicted and were direct, personal evidence that service was not accomplished in accordance with the requirements of OCGA § 9-11-4 (d) (7). Boyer v. King, 129 Ga. App. 690 (200 SE2d 906) (1973).

Under these circumstances, the trial court erred by denying Yelle’s motion to dismiss for insufficiency of service of process. Acord v. Maynard, 198 Ga. App. 296 (401 SE2d 315) (1991); Bible, supra. It follows that the trial court had no jurisdiction over Yelle and erred by granting summary judgment in favor of Suburban Press. Thompson v. Lagerquist, 232 Ga. 75, 76 (205 SE2d 267) (1974).

Judgment reversed.

Beasley, C. J., and Johnson, J., concur.

Decided January 11, 1995.

Michael Yelle, pro se.

J. Michael Kaplan, Jr., for appellee.


text:
    A94A1920.
    SAVANNAH COLLEGE OF ART & DESIGN, INC. v. NULPH.
    (453 SE2d 80)
   Blackburn, Judge.

Appellant Savannah College of Art & Design, Inc. (SCAD) appeals the trial court’s grant of plaintiff Robert G. Nulph’s motion for directed verdict, the trial court’s denial of its motion for directed verdict, and several other alleged errors made during the trial of this case. The underlying dispute arose out of SCAD’s early termination of Nulph’s employment contract, under which Nulph was employed as a professor and department head with SCAD.

The termination provisions of the employment contract required that a termination based on the listed causes be considered “by a committee consisting of the Vice President for Academic Affairs, the Executive Vice President, two members of the Board of Trustees, and the President.” The contract further provided that “[i]n all cases where the facts are in dispute, the faculty member involved has the opportunity to be heard by the joint committee in his or her own defense. The faculty member will be informed before the hearing of the charges against him or her. He or she will be permitted to have with him or her an adviser of his or her own choosing who may act as counsel. A full stenographic record of the hearing will be made available to the parties concerned.

“In cases involving professional incompetence, the faculty member involved may introduce the testimony of other scholars in the same and related fields. The final decision in all cases rests with the Board of Trustees.”

In the present case, Nulph was terminated after a telephone conference between the president, the executive vice president, and two members of the board of trustees. The vice president of academic affairs did not participate in the telephone conference, but she was consulted by the executive vice president prior to it. The committee determined that the facts upon which Nulph’s termination was based were not in dispute, and therefore, Nulph was not entitled to a hearing as outlined in the employment manual.

1. SCAD first enumerates as error the trial court’s failure to grant its motion for directed verdict arguing that Nulph was properly terminated in that there were sufficient undisputed reasons for his mid-contract termination and that the college followed its own termination procedures to an extent sufficient to provide a full opportunity for Nulph to know the charges against him and to provide him an opportunity to respond to those charges before the committee and the Board of Trustees, acting through its Executive Committee. However, there was no evidence that Nulph was informed of the specific charges resulting in his termination nor was he given any opportunity to defend against those charges. Upon learning of his termination, Nulph requested, in writing no less than three times, that he be allowed to respond to the charges against him. He further informed SCAD that the facts were in dispute with regard to allegations of his conduct and that he wanted to present evidence supporting his actions. SCAD unilaterally decided that the facts were not in dispute and denied Nulph any hearing. Therefore, SCAD failed to follow the procedures set forth in its employment contract, and the trial court did not err in denying SCAD’s motion for directed verdict.

2. The trial court granted Nulph’s motion for directed verdict as to liability for breach of contract, finding that the contract clearly and unambiguously required that the final decision to terminate professors rested with the board of trustees and not with a committee. SCAD enumerates this determination as error.

The employment contract allowed a committee to consider termination where it was based on certain listed causes. The contract further provided that in all cases the final decision rested with the board of trustees. SCAD argues that the committee listed in the employment contract happened to be made up of a majority of the voting members of the executive committee of the board of trustees, thereby making a decision of that committee, a decision of the board of trustees. We must agree with the trial court that this is clearly not the intent of the provisions contained in the employment contract drafted by SCAD.

“The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.”. OCGA § 13-2-3. The trial court was correct in determining that the employment contract required termination decisions to rest with the board of trustees rather than a committee. Therefore, the trial court did not err in granting Nulph’s motion for directed verdict.

3. The trial court found that SCAD’s breach was not merely a procedural breach of contract, for which only nominal damages would be recoverable, but a substantive breach because a termination could only have been made by the board of trustees. SCAD’s third and fourth enumerations of error assert that this determination was erroneous. SCAD argues that, if there was a breach, it was merely procedural requiring only nominal damages. This is not a situation where termination only required 30 days notice as in the cases cited by SCAD. See Belcher v. Thomson Newspapers, 190 Ga. App. 466 (379 SE2d 204) (1989); Don Swann Sales Corp. v. Parr, 189 Ga. App. 222 (375 SE2d 466) (1988). In the present case, SCAD attempted to terminate Nulph outside his presence, without a hearing, without informing him of the charges against him, without even a personal meeting of the committee, and then refused him any opportunity to appeal. Prior to termination, Nulph was entitled to an opportunity to be heard in his own defense. He was also entitled to a decision by the board of trustees. Absent such a decision, Nulph’s termination was ineffective. Therefore, the trial court correctly determined that SCAD’s breach of the employment contract was substantive rather than procedural.

Decided December 16, 1994

Reconsideration denied January 12, 1995

Drew, Eckl & Farnham, Arthur H. Glaser, J. Robb Cruser, for appellant.

Jones, Boykin & Associates, Harold J. Cronk, for appellee.

4. SCAD contends that the trial court made several erroneous evidentiary rulings during trial. However, on appeal, SCAD presents argument and citation of authority with regard to only one evidentiary ruling. Therefore, its other enumerations of error regarding evidentiary rulings are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

SCAD attempted to introduce a photocopy of one page of SCAD’s by-laws. However, the trial court properly determined that it failed to lay the proper foundation. See OCGA § 24-7-1.

5. In its final enumeration of error, SCAD contends that the trial court erred in submitting the issue of attorney fees to the jury.

“Bad faith authorizing an award of attorney’s fees in a contract action must relate to the conduct of entering the contract or to the transaction and dealings out of which the cause of action arose, which includes not only the negotiations and formulation of the contract but also performance of the contractual provisions.” (Emphasis supplied.) (Citation and punctuation omitted.) Hirsh v. Goodlett, 196 Ga. App. 127, 128 (395 SE2d 626) (1990). As there was some evidence to support the bad faith damages awarded by the jury, the trial court correctly denied SCAD’s motion for directed verdict on the issue.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.