author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A1391.
    HAILE et al. v. PITTMAN et al.
    (389 SE2d 564)
   Carley, Chief Judge.

After an altercation with appellee-defendants, appellant-plaintiffs were arrested and charged with criminal trespass. A bench trial was held. At the close of the State’s evidence, appellants moved for a judgment of acquittal. See State v. White, 145 Ga. App. 730 (244 SE2d 579) (1978). The motion was denied. At the close of all of the evidence, appellants were found not guilty.

After their acquittal on the criminal charges, appellants filed the instant civil action against appellees. Appellants alleged claims of malicious prosecution, false imprisonment and battery. Appellees answered, denying the material allegations of the complaint, and subsequently moved for summary judgment. The trial court granted summary judgment in favor of appellees and appellants appeal.

1. Monroe v. Sigler, 256 Ga. 759, 760-61 (4, 6) (353 SE2d 23) (1987) is controlling as to appellants’ malicious prosecution claims. “The standard employed in the trial judge’s ruling on a motion for judgment of acquittal is thrice removed, it might be said, from probable cause — as ‘beyond a reasonable doubt’ is more than ‘clear and convincing evidence,’ which is more than ‘preponderance of the evidence,’ which, in turn, is more than mere ‘probable cause.’ When the trial judge, having heard all of the [S]tate’s evidence, considers a motion on behalf of an accused (the accused being present and given an opportunity to be heard in support of the motion); and when the trial judge rules that the evidence is sufficient as a matter of law to support a conviction (that is, is sufficient to enable a rational trier of fact[, that being the trial court in this case,] to find each and every element of the guilt of the accused beyond a reasonable doubt), we can see no reason why such a holding — unreversed and in the absence of fraud or corruption — should not suffice as to the existence of probable cause. [Cit.]” (Emphasis in original.) Monroe v. Sigler, supra at 761 (6). See also Warren v. Akins, 188 Ga. App. 602, 603 (2) (373 SE2d 802) (1988), rev’d on other grounds, 258 Ga. 853 (375 SE2d 605) (1989); Seven Hills Security, Inc. v. Dillingham, 188 Ga. App. 1, 2 (372 SE2d 1) (1988); Griffin v. Ga. Power Co., 186 Ga. App. 565, 566 (1) (367 SE2d 832) (1988). “ ‘This determination is unreversed and is binding. . . . “[T]he existence of probable cause has been established, during the trial of the criminal case, in such manner, as to preclude [appellants’] action for malicious prosecution.” [Cit.]’ ” Seven Hills Security, Inc. v. Dillingham, supra at 2.

2. Monroe v. Sigler, supra, is not controlling as to appellants’ false imprisonment claims. “ ‘False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.’ OCGA § 51-7-20. In an action to recover damages for illegal arrest or false imprisonment the only essential elements are the arrest or detention and the unlawfulness thereof. [Cit.] Thus, . . . the mere existence of probable cause standing alone has no real defensive bearing on the issue of liability. [Cit.]” Scott Housing Systems, Inc. v. Hickox, 174 Ga. App. 23, 24 (1) (329 SE2d 154) (1985). “This is true because probable cause to believe that a crime has been committed may otherwise exist and a warrantless arrest yet be illegal. . . . [T]he defendant in a false imprisonment case premised upon a warrantless arrest does not meet his defensive burden merely by demonstrating the existence of probable cause but he must go further and show that the arrest was also effectuated pursuant to one of the ‘exigent circumstances’ enumerated in OCGA § 17-4-20 (a) [or § 17-4-60]. [Cit.]” Collins v. Sadlo, 167 Ga. App. 317, 318-19 (306 SE2d 390) (1983). See Scott Housing Systems, Inc. v. Hickox, supra at 24-25 (1).

However, the undisputed evidence of record in the present case shows that appellees met their burden. Appellants were “arrested by [appellees’] agent [, an off-duty police officer who was working as a security guard,] within whose presence [appellants] appeared to have [committed criminal trespass]. [Cit.] An arrest (of an offender) by a private person [or a law enforcement officer] where the offense is committed in his presence is a lawful arrest. [Cits.] No genuine issue of material fact remains as to [appellants’] claim [s] predicated upon false imprisonment.” Nunnally v. Revco Discount Drug Centers of Ga., Inc., 170 Ga. App. 320 (2) (316 SE2d 608) (1984).

3. “ ‘In the interest of one’s right of inviolability of one’s person, any unlawful touching is a physical injury to the person and is actionable [as a battery].’ [Cits.]” Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 672 (1) (347 SE2d 619) (1986). See also Stover v. Atchley, 189 Ga. App. 56, 57 (2) (374 SE2d 775) (1988); Greenfield v. Colonial Stores, Inc., 110 Ga. App. 572 (1a) (139 SE2d 403) (1964). The evidence shows that appellants were “touched” only in connection with their arrests. Accordingly, unless a genuine issue of material fact remains as to the unlawfulness of such touchings, the grant of summary judgment as to appellants’ battery claims was proper.

As to the arrests of appellants by appellees’ security guard, not only has probable cause been established, but also “[t]he evidence shows that there was no use of, nor threat of excessive force. [Cit.] A prima facie showing having been made that [appellees were] entitled to judgment as a matter of law, [appellants were] required to come forward with rebuttal evidence to sustain [their] allegations of . . . battery, but failed to do so. [Cit.]” Nunnally v. Revco Discount Drug Centers of Ga., Inc., supra at 321 (3). See also J. C. Penney Co., Inc. v. Miller, 182 Ga. App. 64, 66 (4) (354 SE2d 682) (1987).

Appellees cannot be held liable for the actions of the on-duty policemen who formally arrested appellants. The on-duty policemen were not appellees’ agents. They were the official agents of the State. A private citizen’s mere request that an arrest be made does not render an on-duty policeman the citizen’s agent. The requisite control of the officer’s actions by the private citizen is not present. Cf. Brunson v. Valley Coaches, Inc., 173 Ga. App. 667, 668 (1) (327 SE2d 758) (1985); Red Top Cab Co., Inc. v. Hyder, 130 Ga. App. 870 (204 SE2d 814) (1974).

4. Because no genuine issue of material fact remains as to any of appellants’ claims, the trial court correctly granted summary judgment in favor of appellees.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. Benham and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent and would hold that, on the state of the record at this stage, plaintiffs are entitled to a trial.

1. Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987) is not controlling in the circumstances of this litigation on the claim of malicious prosecution. One of the elements of this cause of action is that the criminal prosecution by defendant was without probable cause. OCGA § 51-7-40; J. C. Penney Co., Inc. v. Miller, 182 Ga. App. 64, 66 (2) (354 SE2d 682) (1987). As quoted in Monroe, supra at 760, plaintiff must show “ ‘that under the facts as they appeared to the prosecutor at the time of the prosecution, . . . the defendant . . . could have no reasonable grounds for believing the plaintiff to be guilty of the charge brought.’ ” OCGA § 51-7-43 defines it: “Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.” The Code section goes on to instruct: “Lack of probable cause shall be a question for the jury, under the direction of the court.”

In Monroe, the Supreme Court answered affirmatively “whether a judicial determination of probable cause made in the course of a criminal prosecution can establish, as a matter of law and for purposes of summary judgment, the existence of probable cause in the civil action for malicious prosecution.” According to the Supreme Court’s analysis, the reason the judicial determination serves to negate a later civil claim of lack of probable cause is that if a judge considers the evidence sufficient to support a jury’s conclusion of guilt beyond a reasonable doubt, it certainly reaches the lesser quantum needed to support probable cause. In the civil context, reasonable men and women on the jury would have to decide whether the preponderating evidence is that a reasonable man or woman under the circumstances of the case before them could have had, at the time of the prosecution, no reasonable grounds for believing plaintiffs to be guilty of the criminal charge brought. Monroe, supra at 760. In Monroe, the significance of the action of the trial court was buttressed by the separate determinations of two magistrates, a factor absent here.

In the instant case, the trials for criminal trespass (knowingly and without authority remaining on the premises of another after notice to depart, OCGA § 16-7-21 (b) (3)) were before the court without a jury. Thus there was no proper motion for directed verdict, as the law does not provide for such in a bench trial because a verdict is the decision of a jury. Smith v. General Motors Acceptance Corp., 98 Ga. App. 840, 841-842 (107 SE2d 334) (1959); see American Appraisal Co. v. Whitley Construction Co., 126 Ga. App. 398, 399 (190 SE2d 838) (1972). Only since 1971 has the law of Georgia again recognized motions for directed verdict in criminal cases. Ga. L. 1971, p. 460 (OCGA § 17-9-1, as amended Ga. L. 1982, p. 3). It was in demise for a period prior to that. See Pritchard v. State, 224 Ga. 776, 779 (2) (164 SE2d 808) (1968); Allen v. State, 228 Ga. 859, 860 (2) (188 SE2d 793) (1972). The appeal in State v. White, 145 Ga. App. 730 (244 SE2d 579) (1978), cited by the majority, was dismissed inasmuch as the state has no right to appeal from a judgment of acquittal which, rightly or wrongly, the trial court had entered because the state failed and refused to put on any evidence.

Nor could the motion have been treated as a motion for involuntary dismissal so as to have accomplished the defendants’ goal in what was a jury-less trial, because the law provides for such only in civil cases. OCGA § 9-11-41 (b); State v. Cooperman, 147 Ga. App. 556, 558 (2) (249 SE2d 358) (1978).

The legally noncognizable motion would be “no more than a request that the court find in the movant’s favor,” Smith, supra at 842. In a criminal case this would properly be done by choosing not to put up any evidence after the State rested. The judgment would then be based both on the law and the facts, American Appraisal Co., supra at 399, whereas the verdict is only “ ‘a declaration of the truth as to the matters of fact submitted to the jury.’ ” Smith, supra at 841. There is no mechanism for the defendant to test the sufficiency of the State’s evidence in a criminal bench trial before electing whether to submit defense evidence.

The question remains whether the Monroe rationale applies to the criminal trial judge’s action in this case. That is, was his so-called denial of acquittal on motion after the State’s evidence was presented based on a judicial determination that the evidence was sufficient to support a finding of guilt beyond a reasonable doubt? The answer is “no.”

The focus of the argument and the court’s explanation related to the elements of criminal trespass as it had been charged. The court was uncertain, because of the lack of legal precedent, whether the two movie patrons who were in the theater with their purchased tickets, which tickets contained no express reservation of right to eject, had a legal right to remain despite the owner’s demand that they leave because of conduct which allegedly occurred before entry. It was asserted that they broke in line outside the theater.

The court noted that they were not charged with entering after receiving notice that entry was forbidden, which is prohibited by subsection (2), but only with violation of subsection (3). The court indicated that if the patrons had a legal right to remain, they obviously could not be guilty of criminal trespass for refusing to leave.

Thus it was the unresolved legal question of whether the contract to see the movie on the premises, which contract was evidenced by the movie tickets, gave the patrons the right to refuse to obey the demand that they depart, which prompted the court to deny the motion for acquittal. The denial of the motion, then, does not conclusively establish that there was a judicial determination that the movie theater owner and employee had probable cause to believe, at the time they prosecuted, that the patrons had committed criminal trespass when they refused to depart. The court acknowledged its uncertainty concerning whether criminal trespass was precluded as a matter of law because of the tickets and that part of the evidence which was undisputed, so there was no foundation upon which a firm determination of sufficient evidence to support a finding of guilt or even probable cause could be made.

This crucial distinction differs this case from even the logic of Monroe v. Sigler and further makes its rule inapplicable. The judge could not have concluded that there was sufficient evidence “to enable a rational trier of fact to find each and every element of the guilt of the accused beyond a reasonable doubt,” Griffin v. Georgia Power Co., 186 Ga. App. 565, 566 (1) (367 SE2d 832) (1988), because he was unsure of the legal ramifications of the accused trespassers’ contract.

As to the other elements, the civil case defendants concede that the criminal prosecution was ultimately terminated in plaintiffs’ favor, and there was some evidence of malice as that is set out in Melton v. LaCalamito, 158 Ga. App. 820 (282 SE2d 393) (1981). The criminal trial judge even commented on the courtroom demeanor of the theater’s agent and had to express his dissatisfaction with his conduct during trial.

Decided December 5, 1989

Rehearing denied December 20, 1989

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Jeffrey G. Casurella, for appellants.

R. Chris Irwin & Associates, R. Chris Irwin, Leslie H. Claxton, for appellees.

2. There being questions of fact and law regarding whether plaintiffs had committed criminal trespass when they were arrested in the theater and handcuffed with their hands behind their backs and thereby restrained, summary judgment is premature on the claim of false imprisonment. OCGA § 51-7-20. Defendants have not shown as a matter of law, by undisputed facts, that it was lawful to detain the patrons from viewing the movie and arrest them. This is their burden. OCGA § 9-11-56; Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673 (307 SE2d 134) (1983).

3. It has not been established as a matter of law that there was no unlawful touching which would be actionable as a battery. New-some v. Cooper-Wiss, Inc., 179 Ga. App. 670, 672 (1) (347 SE2d 619) (1986). The security guard frisked the male patron, led him by the arm, and handcuffed him as well as his pregnant wife. Whether this was justified touching or the use of excessive force is a jury question. See Thompson v. Shelverton, 131 Ga. 714 (63 SE 220) (1908).

4. There being no reference to record or transcript pages indicating that appellees raised, or the court ruled on, a statute of limitation defense, see Rule 15 (c) (3), the parties’ final arguments present nothing for this court to rule on.

I am authorized to state that Judge Benham joins in this dissent.


source: Caselaw Access Project

author: Deen, Presiding Judge. Benham, Judge,

license: Public Domain

text:
    A89A1445.
    CLIATT v. THE STATE.
    (389 SE2d 568)
   Deen, Presiding Judge.

Prosecution of the appellant for traffic violations was initiated in the Gwinnett Recorder’s Court, which does not provide for juries in its jurisdiction. When the appellant filed a demand for speedy trial pursuant to OCGA § 17-7-170, the recorder’s court transferred the matter to the Gwinnett State Court. This appeal follows the trial court’s denial of the appellant’s subsequent motion for discharge and acquittal filed in the state court.

In Adams v. State, 189 Ga. App. 345 (375 SE2d 642) (1988), and Marks v. State, 192 Ga. App. 106 (384 SE2d 186) (1989), two cases that also originated in recorder’s courts but were transferred to state courts, this court held that the only valid demand for trial was that filed in the transferee state court. In the instant case, the appellant filed a demand for trial in the recorder’s court but not in the state court after the case was transferred. Under Adams and Marks, that demand for trial was ineffective to invoke the sanction of discharge and acquittal under OCGA § 17-7-170, and the trial court properly denied the appellant’s motion for discharge and acquittal.

Some confusion may exist as to whether Adams has any precedential value; however, the procedural ruling in Adams stated above was a common denominator for all three judges on the deciding panel and is binding authority. To further clarify the law regarding the construction and application of OCGA § 17-7-170, we hold that the proper reading of the statute is that stated by the special concurrence in Adams at 347, i.e., “that a demand for trial would be effective to invoke the statutory sanction of mandatory acquittal only if filed in a court of record having both regular terms and the authority to impanel juries.”

Judgment affirmed.

McMurray, P. J., Banke, P. J., Pope and Beasley, JJ., concur. Carley, C. J., Birdsong, Sognier and Benham, JJ., dissent.

Benham, Judge,

dissenting.

While I agree with the majority that a demand for speedy trial is effective to invoke the statutory sanction of mandatory acquittal only when filed in a court of record having both regular terms and the authority to impanel juries, I do not agree with the majority’s decision that the demand originally filed in recorder’s court was not effective in state court. The majority implicitly holds that a viable demand can never be filed in a non-jury, non-term court, thereby vitiating that portion of OCGA § 17-7-170 which provides for viability upon transfer without the defendant’s request.

The 1987 amendment to OCGA § 17-7-170 provides that “the demand for trial shall be served on the prosecutor and shall be binding only in the court in which the demand is filed, except where the case is transferred from one court to another without a request from the defendant ” (Emphasis supplied.) OCGA § 17-7-170 (b) requires that a defendant be absolutely discharged and acquitted of the offense charged if he “is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him.” In Ad ams v. State, 189 Ga. App. 345 (2) (375 SE2d 642) (1988), three judges of this court held that the wording of the statute implied that a demand for speedy trial was applicable only in courts which have terms and impanel juries, because without those measuring factors it would be impossible to determine if the demand were timely filed or whether the statutory period in which the trial must be held had run. Only one judge voiced the opinion that the defendant’s demand for speedy trial, made in a court which did not impanel juries, constituted a request by the defendant to transfer the case to a court that impaneled juries and had terms of court. Id. at 347. Two judges specially concurring noted that the lone judge’s interpretation of the 1987 amendment placed a defendant in a “Catch-22” situation, i.e., that a defendant was entitled to file a demand for speedy trial in a non-jury court but that by doing so he was requesting a transfer to a court with terms and juries, with the result that upon such transfer the demand for speedy trial became invalid under OCGA § 17-7-170 since the transfer came at the “request” of the defendant. The two judges specially concurring concluded that a demand filed in a non-jury court was ineffective to invoke the statutory sanction.

The “Catch-22” can be avoided by adopting the position first enunciated by the special concurrence in Adams, and now voiced by the majority, that “a demand for trial would be effective to invoke the statutory sanction of mandatory acquittal only if filed in a court of record having both regular terms and the authority to impanel juries.” However, it must be noted that, while the majority does not recognize it, the statute itself envisions that a demand for trial may be deemed to have been filed in a court having both terms and juries if it were filed in a non-jury court and the case transferred, without a request by the defendant, to a court having both terms and juries (e.g., where a DUI, filed in recorder’s court, is upgraded to vehicular homicide and transferred to superior court). Thus, a defendant could file a demand for speedy trial in recorder’s court, but it would not become effective to invoke the statutory sanction of mandatory acquittal until that demand was filed in a court with terms and juries. The demand would be filed in the court with terms and juries as of the date the case is transferred by some action other than the defendant’s request for a transfer to that court. This would occur automatically, just as the uniform traffic citation filed in recorder’s court acts as the accusation in a case transferred to state court. See Majia v. State, 174 Ga. App. 432 (330 SE2d 171) (1985). That is not to say that a demand filed in a non-jury court is effective the day it is filed, for implicit in the statute is that the demand be effective only in courts which have juries and terms of court. See Ramsey v. State, 189 Ga. App. 91, 93 (375 SE2d 63) (1988); Adams v. State, supra, Div. 2. It is to say that a demand for speedy trial, filed in a non-jury non-term court, lies dormant until the case, for any reason other than the defendant’s request to transfer, is transferred to a court with terms and juries, where the nascent demand would invoke the statutory sanction of acquittal since it would then be filed in a court with terms and juries. The statutorily-set time within which the defendant must be tried would begin to run as of the date of the filing in the court with terms and juries. If the case were transferred at the defendant’s request, his pre-transfer demand for speedy trial would, as OCGA § 17-7-170 provides, be ineffective. If the case were not transferred at all, the defendant’s demand would lie dormant, ineffective to invoke the statutory sanction of acquittal, until disposition of the case. Thus, a defendant may make his statutorily-permitted demand for trial and is protected from the vagaries of transfer that occur for reasons other than his request for transfer. See, e.g., Marks v. State, supra. To hold, as the majority does, that a viable demand can never be filed in a non-jury, non-term court vitiates that portion of the statute which provides for viability upon transfer without the defendant’s request.

Applying the principles enunciated above to the facts of the case at bar, I conclude that the trial court erroneously denied appellant’s motion for discharge and acquittal because two terms passed after the case was transferred to a court with terms and juries, without appellant having requested the transfer, and appellant was not tried. The record contains no motion to transfer, and appellant’s attorney stated in his place at the hearing on the motion for discharge that he had not filed any such motion. Since the case was transferred to a court with terms and juries for some unknown reason and without appellant having requested such a transfer, his nascent demand for speedy trial became effective September 22, 1988, the day his case was bound over to the state court by the recorder’s court. The deputy clerk of the state court testified that there were juries impaneled the weeks of September 19 and 26, and October 3, 10, 17, 24, and 31 (the September term of court) as well as in the November term. Appellant filed his motion for discharge on January 6, 1989 (the January term). Since appellant had to be tried pursuant to his demand for speedy trial in the September or November term of court and was not, his motion for discharge and acquittal should have been granted. Accordingly, I would reverse the judgment of the trial court denying appellant’s motion for discharge and acquittal.

Decided December 5, 1989

Rehearing denied December 20, 1989

Charles A. Mullinax, for appellant.

Gerald N. Blaney, Jr., Solicitor, Robert Greenwald, David M. Fuller, Assistant Solicitors, for appellee.

I am authorized to state that Chief Judge Carley, Judge Birdsong and Judge Sognier join in this dissent.

       The one-judge conclusion that a demand for speedy trial constitutes a request for transfer has no precedential value. Court of Appeals Rule 35 (b). The inclusion of the same statement in Marks v. State, 192 Ga. App. 106 (384 SE2d 186) (1989) is not cause for concern in that it is dicta, a statement “concerning some . . . legal proposition not necessarily involved nor essential to determination of [that] case.” Black’s Law Dictionary, 4th ed., 1951.

       This is exactly the posture in which the majority now places appellant.


author: Benham, Judge. Birdsong, Judge,

text:
    A89A1490.
    ELLIS v. DALTON.
    (389 SE2d 797)
   Benham, Judge.

This appeal is from a judgment entered on a jury verdict for the defendant in a case arising out of a rear-end collision. Appellant presented evidence at trial that appellee’s truck collided with her car while she was waiting, with her turn signal operating, for oncoming traffic to clear so that she could make a left turn. Appellee testified that while his attention was distracted by a vehicle which he thought would not be able to stop in its approach from an intersecting street, appellant stopped her car in a blind curve at a place where she could not turn left, and when he looked back to the front, he was too close to stop.

Appellant enumerates as error several of the trial court’s jury charges and the court’s refusal to permit her to call a witness not listed on the pretrial order. We reverse.

1. Contending that there was no evidence that she was negligent in any way, appellant contends in three enumerations of error that the trial court erred in charging the jury on the plaintiff’s duty of ordinary care, the equal negligence doctrine, and the comparative negligence doctrine. In light of appellee’s testimony that appellant stopped her car in a blind curve at a place where she could not turn left, it cannot be said that there was no evidence at all of negligence on her part. That being so, and it being well settled that an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it (Jones v. Maghdoussian, 159 Ga. App. 839 (1) (285 SE2d 267) (1981)), we find no error in the giving of those charges.

2. The trial court’s charge that appellant could not recover money damages for non-economic damages such as pain and suffering or disability unless she sustained a serious injury as defined by Georgia law was not error in light of evidence authorizing the conclusion that her medical expenses were the result of a pre-existing medical condition. Loyd v. Henry, 174 Ga. App. 49 (2) (329 SE2d 195) (1985).

3. Appellant also enumerates as error the giving of a charge on the avoidance doctrine. In order to warrant a charge on the avoidance doctrine, there must be evidence that the plaintiff knew or should have known of the active negligence of the defendant and failed to take action to avoid it. Carrandi v. Sanders, 188 Ga. App. 562 (1) (373 SE2d 661) (1988). There is no evidence whatsoever in the record of this case to support a finding that appellant was aware of appellee’s alleged negligence before the collision occurred, or that she should have known of that negligence. None of the witnesses gave any testimony to indicate that appellant knew before the collision that appellee would be unable to stop, and there was no evidence to support appellee’s contention on appeal that appellant “stopped suddenly”: appellee only testified that when he looked back at the road after being distracted by other traffic, appellant had stopped. Given the lengthy period of distraction to which appellee testified, the fact that appellant had stopped does not even raise an inference that the stop was sudden. Appellee’s assertion that appellant was negligent in failing to keep a watch to the rear is also without evidentiary support: the testimony showed that she stopped to make a turn and was watching oncoming traffic; there was no testimony which established any reason for appellant to suppose that the car behind hers would fail to stop. The evidence did not support the charge on the doctrine of avoidance, and the trial court’s error in giving it requires reversal. Id.

4. The trial court also charged the jury on the doctrine of sudden emergency; we agree with appellant that the charge was error. “The defense of emergency is not available unless the evidence shows that there has been a ‘ “sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.” ’ [Cits.]” Ray v. Anderson, 189 Ga. App. 80 (2) (374 SE2d 819) (1988). Although appellee asserts that his testimony concerning the presence of a truck which he thought was going to collide with his vehicle was sufficient testimony to warrant a charge on sudden emergency, a careful reading of appellee’s testimony does not reveal evidence of the existence of an actual emergency. Instead, it reveals an error of judgment on appellee’s part which caused him to turn his attention away from the roadway in front of him. Appellee testified that he thought a truck approaching on an intersecting street was not going to stop, but then realized it would. It is clear from appellee’s testimony that he was not actually put to any choice at all. There may be a question of fact concerning whether appellee was negligent in permitting himself to be distracted for long enough for appellant to come to a complete stop in front of him without his noticing, but there is no question of fact concerning the existence of an emergency because appellee’s testimony shows only that he misjudged whether the truck would stop, not that appellee was required to do anything to avoid the truck. Under those circumstances, the doctrine of sudden emergency was not properly an issue in this case, and the trial court erred in charging on that subject. Id.

5. The trial court’s charge on last clear chance was also error, there being no evidence to warrant it. “ ‘The last clear chance doctrine can be invoked only where the defendant knows of the plaintiff’s perilous situation, and realizes, or has reason to realize, the plaintiff’s helpless condition.’ ” Smith v. Mobley, 185 Ga. App. 462 (2) (364 SE2d 597) (1988). The only possible source of evidence of appellee’s awareness of appellant’s peril was appellee’s own testimony, but he testified that when he directed his attention back to the road after being distracted by traffic on an intersecting road, appellant was stopped in front of him and there was no time for him to avoid the collision.

6. The trial court gave in charge the language of OCGA § 51-12-4 to the effect that when the injury is small or the mitigating circumstances are strong, nominal damages only are given. Since we agree with appellant that there was no evidence in the record to warrant any mention of mitigating circumstances, we find that instruction to have been erroneously given as well.

7. Since the errors in the trial court’s jury instructions require a new trial, and the alleged error complained of in appellant’s enumeration of error concerning the exclusion of the testimony of a witness whose name was not on the pretrial order is not likely to recur on retrial, we find it unnecessary to decide it on this appeal.

Judgment reversed.

McMurray, P. J., Banke, P. J., and Pope, J., concur. Carley, C. J., concurs in Divisions 1, 2, 3, 6, and 7, and in the judgment. Deen, P. J., Birdsong and Beasley, JJ., dissent. Sognier, J., concurs in the judgment only of the dissent.

Birdsong, Judge,

dissenting.

As the majority clearly has assumed the fact-finding role exclusively reserved for juries in this state (Horney v. Lawrence, 189 Ga. App. 376 (3) (375 SE2d 629)), I cannot agree with its conclusion that the trial court’s charge to the jury on the doctrines of avoidance, sudden emergency, and last clear chance was not authorized by the evidence. Therefore, I must respectfully dissent to the reversal of the judgment.

1. Only three witnesses testified about the collision: Ellis, Dalton, and Dickie. To appreciate the issues presented, the testimony must be discussed more fully than the brief analysis presented in the majority opinion.

Ellis testified that after leaving a counseling session at her church, she stopped in the street to let on-coming traffic clear so she could turn left into a driveway. She testified that she had her turn signal on, but she did not pay attention to anything behind her and she did not look back. She testified that on-coming traffic had cleared and she was about to turn when her car was hit from the rear. She testified further that she did not notice Dalton until his truck hit her car; she did not see any jacked-up pickup trucks, and she did not hear any loud noise coming from a jacked-up pickup truck.

Dalton testified that he had followed Ellis for some distance before the collision and was driving about 20 miles per hour. He testified that immediately before the collision his attention was called to a jacked-up pickup truck approaching from a side street because a loud noise from this truck caused him to believe it was going to collide with his truck. He testified that he looked to see if he would be required to avoid the jacked-up truck, and when he saw the jacked-up truck would not hit him, he looked to his front and saw Ellis’ car stopped in front of him. He testified he slammed on his brakes, but before he could stop, his truck hit Ellis’ car. Dalton testified that his car skidded on the road that was wet from an earlier rain. He also testified that Ellis was stopped in a blind curve, and that she was not stopped at an intersection or place where she could turn left.

Dalton testified that when he looked at the jacked-up truck he was about 40-50 feet behind Ellis and when he looked at Ellis again, she was stopped about 20 feet in front of him. He also testified that he did not see Ellis’ turn signals on before he saw her stopped.

The other witness, a Mr. Dickie, generally supported Ellis’ version of the events. He testified he saw her stopped for some time to make a left turn, he heard brakes squeal, he saw Dalton’s truck going at an excessive speed some distance from Ellis’ car, and he saw the truck hit the car from the rear. Dickie also did not see or hear the jacked-up pickup truck. He testified, however, that Ellis stopped in a blind curve and he could not say whether she had her turn signal on.

This court’s decisions on whether charges are authorized by the evidence must be guided by the recognition that our law does not require that there be direct evidence in the record before a jury charge is authorized if there is some evidence from which a “ ‘legitimate process of reasoning can be carried on in respect to it.’ ” T. G. & Y. Stores v. Waters, 175 Ga. App. 884, 886 (334 SE2d 910). Indeed, a charge is authorized if there is some evidence, even if the great preponderance of the evidence is to the contrary (Lyles v. State, 130 Ga. 294 (60 SE 578); Hawkins v. State, 80 Ga. App. 496, 499 (56 SE2d 315)), and any evidence, however slight, is sufficient. Beal v. Braunecker, 185 Ga. App. 429, 433 (364 SE2d 308). Considered in light of these principles, there is ample evidence in the record to authorize all three charges which the majority rejects.

The majority concludes, however, that there was no specific evidence in the record to authorize a jury charge on the avoidance doctrine. Such a conclusion, however, misses the primary issue: whether there was any evidence from which a process of reasoning could be legitimately undertaken that Ellis could have in the exercise of ordinary care detected Dalton’s negligence and have avoided it. See Carrandi v. Sanders, supra.

Since there is evidence that Ellis was stopped on a road she used to return from her church, it could be reasonably argued she was familiar with the road and she should have known that she stopped in a blind curve, as both Dalton and Dickie testified. Accordingly, it could be argued that under such circumstances she was required to be alert for traffic approaching from behind her. Further, as she admitted she did not pay attention to anything behind her and did not look back, it could also be argued that she did not exercise reasonable care. It also could be argued that Ellis heard or should have heard Dalton’s brakes squealing, as Dickie did, and exercising ordinary care could have avoided the collision. Thus, since there was some evidence in the record from which a legitimate process of reasoning could be carried on, the charge on the avoidance doctrine was warranted. The majority’s decision now permits drivers to sit stopped knowingly in blind curves with careless disregard to traffic approaching from the rear without their conduct being called into question. That is not and should not be the law.

The majority invades the province of the jury by weighing the evidence, finding the facts as it deems them supported by that evidence, and then deciding based upon these factual determinations whether Ellis was aware of Dalton’s approach, whether she placed herself in a dangerous position, and whether she could have avoided the collision. Those decisions belong to the jury, not this court. Jones v. City of Atlanta, 257 Ga. 727, 729 (363 SE2d 254); Horney v. Lawrence, supra. Further, the evidence did not demand the conclusion reached by the majority on the use of ordinary care. The majority’s emphasis only on whether there was specific evidence in the record that Ellis was actually, or should have been, aware of Dalton’s negligence disregards whether there was evidence from which it could be reasoned that she would have been aware of the negligence if she had exercised ordinary diligence. See Carrandi v. Sanders, supra.

2. The majority also concludes that there was no evidence authorizing the charge on the last clear chance doctrine. I also cannot agree with this conclusion. While it appears unusual that Dalton would request a charge that seemingly favored Ellis, his having done so does not mean that the charge was not raised by the evidence. Had Ellis requested this charge, there is little doubt that this court would have found it raised by the evidence. That Dalton requested the charge should not increase the evidentiary burden necessary to authorize the charge.

As discussed above, there was evidence, particularly Dickie’s testimony about the blind curve and Ellis’ testimony that she was using a street she was familiar with, from which it reasonably could be argued that Ellis put herself in a position of peril from which she could not escape, and, again, considering Dickie’s testimony that he saw Dalton some distance from Ellis, it could also be reasoned that Dalton was aware of Ellis’ peril in sufficient time to avoid the collision. Such evidence is sufficient to warrant a charge on the last clear chance doctrine, and, indeed, presents the classic case for the doctrine. See Smith v. Mobley, supra.

The majority’s conclusion that only Dalton’s testimony supports this charge is wrong. Dickie also gave testimony relevant to this issue, and in fact, his testimony contradicts Dalton’s on this point. The majority’s desire to harmonize the evidence reveals clearly that the majority is bent on finding the facts, and not deciding whether there was evidence supporting the charge. The evidence need not be consistent to warrant a charge — there need only be some.

3. Finally, again assuming the jury’s fact-finding role, the majority concludes that a charge on the emergency doctrine was not required because Dalton was not presented with an emergency. Whether there was an emergency is clearly a determination to be made by the jury. Ray u. Anderson, supra. Moreover, there is evidence on which to base an argument that Ellis was presented with an emergency which gave him an immediate choice: deal with the jacked-up truck or continue to watch the car ahead. The majority’s decision now concludes that it was not really an emergency, but a traffic distraction. The only evidence on this issue was Dalton’s testimony, and there is nothing in his testimony which supports such a finding of fact by the majority on this issue, even assuming arguendo that they have the power to make such a finding in the first instance.

The emergency doctrine allows the jury to excuse choices made in sudden emergency situations without time for mature reflection. Reece v. Callahan, 164 Ga. App. 131, 132 (296 SE2d 425). See also Howard v. Jones, 187 Ga. App. 756, 758 (371 SE2d 196). There is no place in the doctrine for second guessing by this court whether there was in fact an emergency or whether the choice made was reasonable to us. Dalton’s conduct is not judged on hindsight, but on how things appeared at the moment of danger. Davis v. Calhoun, 128 Ga. App. 104, 105 (195 SE2d 759). Therefore, we must look to the transcript to determine whether there was evidence upon which to base the charge, and not decide, as the majority here does, whether Dalton was entitled as a matter of legal philosophy to the protection afforded by the doctrine. Viewing Dalton’s testimony, the only evidence on the issue, there is evidence from which he could reasonably argue that he was entitled to a charge on this doctrine, and I cannot agree that the trial court erred by giving the charge.

Decided December 5, 1989

Rehearing denied December 20, 1989

Charles E. Moore, Jr., Karolyn Mercer, for appellant.

Van Gerpen & Rice, Kenneth L. Shigley, Kevin O. Skedsvold, for appellee.

Further, whether Dalton was watching the truck for a long time, as the majority finds, is not relevant to a charge on the issue. In the same manner, whether Ellis stopped suddenly is not relevant to the avoidance issue. Moreover, the majority’s findings of fact on both questions are not supported by the evidence. Dalton testified he was going 20 mph and the distance between himself and Ellis closed about 30 feet. This would support an argument that only one second elapsed, because a vehicle going 20 mph travels approximately 30 feet per second. Thus, Dalton could argue that the stop was sudden and the time short. As these are questions for the jury, however, it exceeds the authority of this court to decide them as it has. This is particularly so since the jury found in Dalton’s favor and our law requires us to construe the. evidence to support the verdict.

4. In regard to the charge on OCGA § 51-12-4, as the verdict was returned in favor of Dalton, this issue is moot. Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155 (342 SE2d 352). See also Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (378 SE2d 510), citing Maloy v. Dixon, 127 Ga. App. 151, 156, n. 2 (193 SE2d 19).

Therefore, I would affirm the trial court’s judgment and I respectfully must dissent .from this reversal. I am authorized to state that Presiding Judge Deen and Judge Beasley join in this dissent.


author: Banke, Presiding Judge. Pope, Judge,

text:
    A89A1579.
    PHOENIX AIRLINE SERVICES, INC. et al. v. METRO AIRLINES, INC. et al.
    (390 SE2d 219)
   Banke, Presiding Judge.

Appellee Metro Airlines, Inc., is a holding company which owns the stock of several “commuter-feeder” airlines. Such airlines typically provide connecting flights between a major regional airport “hub” and smaller localities in the region, operating under a “service agreement” with a large trunk carrier whereby the commuter-feeder airline identifies itself with the larger carrier and coordinates its operations with those of the larger carrier at the major airport hub. One of the commuter-feeder airlines owned by Metro Airlines is appellee Metro Express, Inc., which operates out of Atlanta under a service agreement with Eastern Airlines. Appellants Michael J. Brady, John E. Molis, and Charles A. Miller are former officers and employees of Metro Express who left that company during its first year of operation to start a commuter-feeder airline based in Memphis, Tennessee, under a service agreement with Republic (now Northwest) Airlines, This new airline was incorporated as Express Airlines I, Inc., but has operated under the trade name, “Airlink,” the name by which it will hereafter be referred to in this opinion. Airlink is in turn owned by appellant Phoenix Airline Services, Inc., approximately 95 to 98 percent of the stock of which is owned by appellant Brady.

Metro Airlines and Metro Express brought the present action against Brady, Molis, and Miller based on allegations that they had secretly made plans and arrangements for the formation of Airlink while still employed by Metro Express, thereby wrongfully appropriating to themselves a corporate business opportunity in violation of a fiduciary duty of loyalty owed both to Metro Express and to its parent company. The complaint further alleged that these plans and arrangements had been made on company time and through the use of company resources and that other Metro Express employees had been solicited to join in the new enterprise. Airlink and Phoenix Airline Services were also named as defendants, under the theory that they had conspired with Brady, Molis, and Miller to receive the fruits of their disloyal actions.

Each of the defendants denied liability; and, in addition, Brady and Miller counterclaimed to recover monies allegedly due them under a profit-sharing and bonus plan which was in effect at Metro Express during the period they were employed there. The case was tried before a jury, which found the defendants jointly liable for “compensatory” damages in the amount of $30,000,000 and, in addition, assessed punitive damages against Brady in the amount of $5,000,000, against Molis in the amount of $100,000, and against Miller in the amount of $10,000. The case is before us on appeal from the denial of the appellants’ alternative motions for new trial and judgment notwithstanding the verdict.

Metro Airlines began establishing commuter-feeder airlines in Texas during the early 1980’s and by 1983 was considering establishing a subsidiary in Atlanta to operate under a service agreement with Eastern Airlines. In the summer of that year, appellant Brady, who had previous experience operating a commuter airline in Atlanta, telephoned J. L. Seaborn, the president of Metro Airlines, to inquire about possible employment. Brady was ultimately hired by Metro Airlines to be the president of the new Atlanta-based subsidiary, which was incorporated as Metro Express. He then set about hiring his own senior staff, which came to include appellant Molis as vice-president in charge of operations and maintenance and appellant Miller as director of maintenance. In addition to being named president of the new subsidiary, Brady was also named as one of its three directors, the other two being the parent company’s president, Sea-born, and its board chairman, Edmond Henderson.

Metro Express commenced operations on April 4, 1984, and was an immediate financial success. There was testimony that upon being informed by the company’s director of finance that the airline had earned a profit of more than $100,000 during its first month of operation, Brady made a statement to the effect of: “Wouldn’t it be great to be doing this for ourselves.” During June of 1984, while on a business trip for the company, Brady learned that TransWorld Airlines was looking for a commuter-feeder partner for its hub in St. Louis; and he subsequently learned that Republic Airlines was interested in securing a commuter-feeder partner for its hub in Memphis. Brady pursued these opportunities during the remainder of 1984 with the assistance of Molis and other Metro Express personnel, taking care to conceal his efforts in this regard from Seaborn and Henderson. The negotiations with Republic bore fruit, and by letter to Brady dated December 20, 1984, that airline confirmed its intent “to proceed with a ten-year service agreement with Phoenix Express Airlines Services, Inc.”

Brady resigned from Metro Express on January 8, 1985. Phoenix Airline Services, Inc., was incorporated the following day, and approximately a month later it entered into a ten-year contract with Republic to operate a commuter-feeder airline out of Memphis. Molis had already resigned from Metro Express approximately two weeks prior to Brady’s departure to devote his full attention to the new venture; and Miller joined them later, as did various other Metro Express employees, including its vice president of sales and service and its chief pilot. In October of 1985, Airlink entered into a second service agreement with Republic to service its hub in Minneapolis/St. Paul. Republic was subsequently purchased by Northwest Airlines, following which Airlink changed its name to “Northwest Airlink” and began servicing that company’s hub in Milwaukee, while maintaining its existing operations in Memphis and Minneapolis/St. Paul. Held:

1. The appellants contend that they owed no fiduciary duty of loyalty to Metro Airlines because they were not employed by that company and that they breached no fiduciary duty of loyalty to Metro Express because that company was established for the exclusive purpose of operating a commuter-feeder service in Atlanta under a contract with Eastern and therefore was not in a position to contract with Republic to operate a commuter-feeder service out of Memphis. We find these contentions to be without merit.

Both Metro Airlines and Metro Express are Delaware corporations, and the parties are in agreement that the law of that state is therefore determinative of the nature and scope of the fiduciary duties at issue. See generally Diedrich v. Miller &c. Assoc., 254 Ga. 734 (1) (334 SE2d 308) (1985). Under Delaware law, “[corporate officers and directors . . . stand in a fiduciary relation to the corporation and its stockholders.” (Emphasis supplied.) Guth v. Loft, Inc., 5 A2d 503, 510 (Del. 1939). Accord Smith v. Van Gorkom, 488 A2d 858, 872 (Del. 1985). This relationship arises from traditional agency principles and applies “not only to officers and directors but also to key managerial personnel.” Science Accessories Corp. v. Summagraphics Corp., 425 A2d 957, 962 (Del. 1980). Based on these authorities, we conclude that, in their capacity as officers, directors, and/or key employees of Metro Express, the appellants owed a fiduciary duty of loyalty both to Metro Express and to its parent company, Metro Airlines. Accord Anadarko Petroleum v. Panhandle Eastern, 545 A2d 1171, 1174 (Del. 1988) (holding that “in a parent and wholly-owned subsidiary context, the directors of the subsidiary are obligated only to manage the affairs of the subsidiary in the best interests of the parent and its shareholders).” (Emphasis supplied.)

2. Under Delaware law, the fiduciary duty of loyalty which is owed to a corporation by its officers, directors, and managerial employees must be balanced against “an off-setting policy ‘recognized by the courts ... of safeguarding society’s interest in fostering free and vigorous competition in the economics sphere. . . . This policy in favor of free competition has prompted the recognition of a privilege in favor of employees which enables them to prepare or make arrangements to compete with their employers prior to leaving the employ of their prospective rivals without fear of incurring liability for breach of their fiduciary duty of loyalty.’ ” Science Accessories v. Summagraphics, supra, 425 A2d at 963, quoting from Maryland Metals v. Metzner, 382 A2d 564, 569 (Md. App. 1978). In an effort to reconcile these competing interests, the “doctrine of corporate opportunity” has been developed. Different jurisdictions have different tests to determine whether a business opportunity constitutes a corporate as opposed to a private opportunity; however, it has been stated by one commentator that “[u]nder any test, a corporate opportunity exists when a proposed activity is reasonably incident to the corporation’s present or prospective business and is one in which the corporation has the capacity to engage.” Fletcher, Cyclopedia of Corps., § 861.1, pp. 285-6 (1986 ed.).

Under Delaware law, a business opportunity will be considered a corporate rather than a private opportunity “if: (a) the corporation is financially able to undertake it; (b) it is within the corporation’s line of business; (c) the corporation is interested in the opportunity.” Science Accessories v. Summagraphics, supra at 963. If, on the other hand, “ ‘the opportunity[ ] is not one which is essential or desirable for [the] corporation to embrace, being an opportunity in which it has no actual or expectant interest, the officer is entitled to treat the business opportunity as his own and the corporation has no interest in it, provided the officer has not wrongfully embarked the corporation’s resources in order to acquire the business opportunity.’ ” (Emphasis supplied.) Id. at 963, quoting Equity Corp. v. Milton, 221 A2d 494, 497 (Del. 1966). Under the latter circumstances, i.e., where the officer has utilized the resources of the corporation to acquire the opportunity, he is estopped from asserting that the corporation had no interest in it. “In this regard, a fiduciary’s compensated time is regarded as a corporate asset; accordingly, the rule of estoppel applies to a person who uses ‘company’ time to develop a business opportunity.” Fletcher, Cyclopedia of Corps., supra at p. 287.

The evidence presented during the trial of this case, construed in favor of the verdict, was amply sufficient to support a determination that the appellees were financially capable of establishing a new airline to service Republic’s Memphis hub; and there is no question that such expansion would have been within their line of business. We believe that the jury could further have determined from the evidence that the appellees would have been interested in pursuing this opportunity had the appellants disclosed it to them in a timely manner rather than secretly pursuing it themselves. Moreover, since there was evidence from which the jury could have determined that the appellants had pursued and developed the opportunity on company time, and since any uncertainty which may exist as to whether and how vigorously the appellees would have pursued the opportunity had it been brought to their attention is attributable to the appellants’ conduct in concealing their own interest in it, we do not believe that the appellants are in a position to complain of a lack of proof on this latter issue. “[T]he appropriate method to determine whether or not a corporate opportunity exists is to let the corporation decide at the time the opportunity is presented.” Fletcher, supra at p. 288. We have no hesitancy in concluding that the evidence in this case supports the jury’s finding that the appellants breached a fiduciary duty of loyalty both to Metro Express and to Metro Airlines by appropriating the Republic opportunity for themselves.

3. The appellants contend that no evidentiary basis exists in this case for an award of actual damages in the amount of $30,000,000. We agree.

Although the appellees presented evidence that they had suffered some unspecified amount of injury to their existing business operations as the result of the appellants’ actions, no attempt was made to quantify this injury; and the appellees do not argue that the jury’s award can be justified as compensation for any actual losses they may have sustained. Rather, they seek to justify the award either as an estimate of the potential profit which they lost as the result of the appellants’ actions or as an estimate of the profits realized by the appellants.

Under Delaware law, “[i]f an officer or director of a corporation, in violation of his duty as such, acquires gain or advantage for himself, the law charges the interest so acquired with a trust for the benefit of the corporation, at its election, while it denies to the betrayer all benefit and profit. The rule, inveterate and uncompromising in its rigidity, does not rest upon the narrow ground of injury or damage to the corporation resulting from a betrayal of confidence, but upon a broader foundation of a wise public policy that, for the purpose of removing all temptation, extinguishes all possibility of profit flowing from a breach of the confidence imposed by the fiduciary relation.” Guth v. Loft, Inc., supra, 5 A2d at 510. “And if, in such circumstances, the interests of the corporation are betrayed, the corporation may elect to claim all of the benefits of the transaction for itself, and the law will impress a trust in favor of the corporation upon the property, interests and profits so acquired. (Cits.)” Id. at 511.

The jury in this case was presented with an alternative verdict form giving them the choice, in the event they found in favor of the appellees, of either assessing monetary damages against one or more of the appellants or “placing] the assets and stock of defendant corporations in a constructive trust for the benefit of the plaintiff[s].” The appellants contend that, having rejected the constructive trust option in favor of a monetary award, the jury was not entitled to consider the profits realized by the appellants as a result of the establishment of Airlink but was required to base its award on evidence of actual losses sustained by the appellees. We are aware of no authority which supports this contention. A constructive trust is merely a type of equitable remedy designed to provide relief against unjust enrichment. See generally 76 AmJur2d, Trusts, §§ 221-2. If adequate relief can be provided through an award of monetary damages, that alternative clearly is not rendered inappropriate by the fact that an equitable remedy may have been considered and rejected. Indeed, there may be circumstances in which adequate relief can be afforded only through the use of both remedies. See, e.g., Borden v. Sinskey, 530 F2d 478 (3rd Cir. 1976). However, where an award of monetary damages is made for unjust enrichment, it must, of course, be supported by evidence from which it can be determined to a reasonable certainty that the defendants in fact realized such a gain. See generally DeJong v. Stern, 162 Ga. App. 529 (1) (292 SE2d 115) (1982). “An allowance for damages cannot be based on guesswork. [Cits.] ‘Loss of anticipated profits which is completely conjectural is not recoverable.’ [Cit.]” Id. at 530. Accord Farmers Mut. Exchange v. Dixon, 146 Ga. App. 663, 664-5 (5) (247 SE2d 124) (1978); Fidelity Nat. Bank v. Wood, 189 Ga. App. 109 (375 SE2d 228) (1988).

The appellees have suggested four alternative theories upon which the jury could have based its award of damages in this case, and we shall address these theories seriatim. First, the appellees contend that the award was supported by evidence that Airlink had earned gross annual revenues averaging approximately $67,000,000 during the two fiscal years immediately preceding the trial, combined with evidence that Metro Express had never operated at a profit margin of less than 10 percent. The appellees maintain that it may be inferred from this evidence that if they, rather than the appellants, had obtained the contract with Republic, they would have been able to earn at least $67,000,000 in profits over the course of its ten-year term. We find this argument utterly meritless. As previously indicated, there was no evidentiary basis upon which the jury could have awarded damages to the appellees for any actual injury to their existing business operations. Thus, if the award of damages in this case is to be sustained, it must be sustained as an estimate of the unjust enrichment realized by the appellants as a result of their misconduct. The amount of profit the appellees might hypothetically have realized from the opportunity had they pursued it affords no basis for a recovery under the present circumstances.

The appellees further contend that the award can be justified as a reasonable estimate of the actual profits which Airlink had thus far earned and the projected profits which it still stood to earn under the ten-year Republic contract. In its audited financial statements, Air-link had reported total net profits in the approximate amount of $6,600,000 during the three fiscal years that it had been in operation prior to trial. Based on the assumption that this level of profitability would continue, the appellees contend that the jury could reasonably have determined that the airline stood to earn profits totalling $22,000,000 over the life of the contract. The most obvious problem with this calculation is that, even assuming arguendo the reasonableness of the assumptions on which it is based, it is $8,000,000 shy of supporting a $30,000,000 award. Additionally, we note that in cases where an award of damages is sought based on the loss of future income, it is normally necessary to introduce evidence from which the present value of such income may be ascertained, inasmuch as a recovery of future damages without reduction to present value would “bear[ ] no reasonable relationship to probable actual damages suffered. . . .” Taylor v. Commercial Credit Equip. Corp., 170 Ga. App. 322, 322-3 (316 SE2d 788) (1984).

The appellees next assert that the profit figures reported by Air-link were understated by the amount of certain “management” fees that company had paid to its parent company, Phoenix Airline Services, and that if these fees, which amounted to some $5,500,000 over the two years prior to trial, are taken into consideration the award of $30,000,000 is justified. The contention that these fees did not constitute legitimate operating expenses is based on certain testimony by Seaborn to the effect that Metro Airlines was capable of overseeing additional operating companies without incurring any additional overhead. However, Brady testified without dispute that Metro Airlines did not provide support services to its subsidiaries but set them up to operate independently, whereas Phoenix had provided accounting, training, and engineering services to Airlink. Brady further testified without dispute that “almost all” of the management fees paid to Phoenix by Airlink had been used to pay the salaries of the Phoenix personnel who had provided such services to that company. In the face of this undisputed testimony, there was no evidentiary basis upon which the jury could have treated these fees simply as additional profit to the appellants.

The appellees finally contend that the jury could legitimately have based its award on Seaborn’s testimony that commuter airlines are worth “an amount equal to between 80-83% of the[ir] gross operating revenues. ...” Seaborn’s testimony on this point was actually as follows: “Q: What is American Airlines currently paying for the commuter airlines it’s acquiring, what is the formula they’re using? ... A: They have bought five this past year and the common thread among all of them is a percentage of the total revenue, and that runs about 80 to 83 percent of the total revenue.”

Even assuming arguendo that this testimony had any probative value on the issue of what American Airlines had paid for the last five commuter airlines it had acquired, the jury clearly was not entitled to conclude that Airlink’s worth could be calculated in like manner absent evidence that it was comparable to the airlines acquired by American in such areas as profitability, financial structure, and future business prospects. Nor have we been cited to any other evidence from which the jury could have estimated the net worth or market value of either of the appellant corporations. We are thus left with no basis upon which the $30,000,000 award can be sustained. We accordingly hold that the trial court erred in denying the appellants’ motion for new trial. “Such new trial, however, properly should be limited to the issue of damages since the original verdict established liability. [Cits.]” Clark v. Wright, 137 Ga. App. 720, 723 (224 SE2d 825) (1988). Accord Petty v. Barrett, 187 Ga. App. 83 (369 SE2d 294) (1988).

4. Having reversed the jury’s award for other reasons, we do not reach the troublesome issue of whether, in the absence of evidence demonstrating an actual, quantifiable injury to the claimant, one defendant may ever be held jointly liable with a second defendant for an unjust enrichment which the second defendant alone realized. We note, however, that the theoretical basis for the imposition of joint and several liability upon joint tortfeasors, i.e., that all who joined in the commission of the wrong should be held fully responsible for the damage occasioned by their conduct, (see generally Eidson v. Maddox, 195 Ga. 641, 644 (24 SE2d 895) (1943)), would appear to be of doubtful applicability where the sole purpose of the award is to prevent unjust enrichment rather than to compensate a claimant for actual loss.

5. The appellants contend that the trial court erroneously shifted the burden of proof to them by instructing the jury that “once it is established that an opportunity is presented to an officer, he must prove that he acted in the utmost good faith; and if he claims it is not feasible for his employer to pursue the opportunity, he must prove to you this is the case.” In the context in which it was given, this charge was entirely proper. The trial court had previously charged the jury that each party had the burden of proving any claims it was asserting by a preponderance of the evidence. The language complained of properly instructed the jury that once the appellees had carried their initial burden of establishing that the appellants were presented with a corporate opportunity, the burden shifted to them to show that they had acted in good faith in dealing with this opportunity and that no disloyalty had in fact occurred. See Guth v. Loft, Inc., 5 A2d 503, 512, supra. See also Callaghan, Law of Corporate Officers & Directors, § 3.04 (3d ed. 1986), and cases cited therein; Knepper, Liability of Corporate Officers & Directors, § 3.04 (3d ed. 1978). Cf. Peachtree Purchasing Co. v. Carver, 189 Ga. App. 73 (3) (374 SE2d 834) (1988).

6. Appellants Brady and Miller contend that they were entitled to a directed verdict on their counterclaim against Metro Express for the profit-sharing funds allegedly due them. We disagree. There was testimony that the purpose of the profit-sharing plan was to provide the company’s employees an incentive to remain employed and to expend their best efforts on behalf of the company. The original memorandum regarding the plan, drafted by Brady, specified that only active employees would be entitled to distributions; and the company’s personnel policies manual reflects that this plan was in effect when Brady and Miller resigned. The jury was authorized to conclude from this evidence that the two men were not entitled to further payments from the fund subsequent to their resignation.

7. The appellants’ remaining enumerations of error are either without merit or have been rendered moot by the foregoing. For the reasons previously stated, we hold that the trial court erred in denying the appellants’ motion for new trial with respect to the issue of damages. However, because the evidence would have authorized an award of damages in favor of the appellees in some amount, the appellants’ motions for directed verdict and judgment notwithstanding the verdict were properly denied. Accord Turner v. Conner, 192 Ga. App. 348 (385 SE2d 19) (1989).

Judgment affirmed in part and reversed in part.

Sognier, J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

As discussed in the majority opinion, the award of damages in this case cannot be supported by either of the four alternative theories of recovery advocated by the appellees to sustain the award. More importantly, none of these four theories represents the proper method of measuring damages in a usurpation of corporate opportunity case. The remedy in such a case is to disgorge the tortfeasors of any and all benefits from their tortious acts. Clearly, appellees in this case are entitled to a monetary award for the profits earned to date in the usurped enterprise. This would include not only corporate profits but also compensation earned by the individual appellants minus the value of the reasonable compensation to which appellants were entitled for the efforts they expended in developing the usurped opportunity. See Graham v. Mimms, 111 Ill. App. 3d 751 (444 NE2d 549) (1982). To compensate appellees for the future value of the usurped opportunity, “[t]he traditional remedy ... is a constructive trust imposed for the benefit of the [plaintiff] corporation.” Morad v. Coupounas, 361 S2d 6, 10 (Ala. 1978). Accord In the Matter of Safety Intl., 774 F2d 660 (5th Cir. 1985). As I see it, in addition to an award for past profits a jury may, in equity, award appellees the beneficial ownership of the appellant corporations’ stock or may award monetary damages representing the value of the stock of the appellant corporations minus a set-off for expenditures made by the tortfeasors in acquiring the stock. See Borden v. Sinskey, 530 F2d 478, 496-499. See also Guth v. Loft, Inc., 5 A2d 503 (Del. 1939). In either case appellees would thus be compensated for future profits earned by the tortfeasors either by earning the profits themselves, as beneficial owners of the corporation, or by obtaining an award of the value of the appellant corporations, a figure which logically would be based in part on anticipated earnings and the value to appellants of the remaining term of the ten-year contract with Northwest Airlines.

The award of thirty million dollars was unsupported at the trial of the case by evidence of past profits plus the value of the appellant corporations. On retrial of the issue of damages these elements must be proven to sustain a monetary award.

Decided December 4, 1989

Rehearing denied December 20, 1989

Schreeder, Wheeler & Flint, David H. Flint, Alexander J. Simmons, Jr., Alston & Bird, G. Conley Ingram, Robert D. McCallum, Jr., for appellants.

William W. Gardner, Hishon & Ranney, Jonathan Moonves, for appellees.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A89A1584.
    BROWN v. WINN-DIXIE ATLANTA, INC.
    (389 SE2d 530)
   Beasley, Judge.

Plaintiff Brown appeals the grant of judgment in favor of defendant Winn-Dixie Atlanta, Inc., notwithstanding the jury verdict in her favor, OCGA § 9-11-50 (b). Her suit is for the store’s negligence in failing to protect her from the tortious misconduct of its employee (OCGA § 51-1-1), false imprisonment, (OCGA § 51-7-20), intentional infliction of emotional distress (see Crowe v. J. C. Penney, Inc., 177 Ga. App. 586, 588 (1) (340 SE2d 192) (1986), slander (OCGA § 51-5-4), and bad faith and stubborn litigiousness (OCGA § 13-6-11), stemming from an incident while Brown was shopping.

The following is undisputed. At about 1:00 p.m. Brown’s neighbor gave her a ride to Winn-Dixie. Brown went into the store and selected several food items including a container of Brunswick stew from the delicatessen. She was assisted at the deli by store employee Gates. Brown went through the express checkout lane and paid for these items at 1:15 p.m. or 1:16 p.m. Just after she had paid for the groceries, Brown realized that she had forgotten to buy some personal items. She knew the express lane cashier and asked her if she could leave her paid-for groceries at the counter while she went back to get the other items. Knowing the store well, Brown immediately located what she wanted, returned to the express lane, and purchased these items at 1:18 p.m.

Brown left the store with her purchases. She got into her neighbor’s car and ate the Brunswick stew. As Brown and her neighbor were about to drive off, Brown spied an acquaintance and asked for a ride home. The woman agreed but had to shop first. So five to seven minutes after Brown had left the store, she reentered with the acquaintance. Before Brown went in, she tossed the empty stew container into a trash can. Brown began to shop and selected several food items including half a cooked chicken from the deli. Employee Gates noticed that the stew Brown had selected earlier was not in the basket Brown was carrying. Gates had not seen Brown purchase the stew.

The store had been having problems with people getting food and taking it into the bathroom or leaving it on the shelves, i.e., not purchasing it, so employees were instructed to report to their supervisor when they saw a customer order something and then saw the customer again but without the ordered item. Gates suspected that Brown perhaps had not wanted the stew, had left it on the shelf or thrown it in the trash. She did not know what Brown had done with the stew, so she reported it to assistant manager Fields.

Fields suspected that Brown had not paid for the stew. He went to the checkout line where Brown was paying for the new purchases to verify that the stew was absent. After Brown got through checking out at 1:35 p.m., Fields asked her about the absent stew. The brief encounter between Brown and Fields is the basis of the litigation.

This court must view the evidence at trial in the light most favorable to Brown. See Pendley u. Pendley, 251 Ga. 30, 31 (1) (302 SE2d 554) (1983). Brown’s version of the incident was that as she was about to leave the store, Fields came up to her and said, “Where is the Brunswick stew you had?” Brown said, “Excuse me?” Fields again asked where the stew was. Brown asked, “Why?” Fields said, “Because you didn’t pay for it.” Brown walked Fields down to the express checkout lane to verify that she had paid for the stew. She felt she had to prove herself at that point or she would not have been able to leave the store. The entire incident lasted two to three minutes. When cross-examined as to whether or not Fields had enough facts for him to have reasonably stepped up and asked where the Brunswick stew was, Brown at first said no but then added that the questioning but not its manner might have been reasonable.

A fellow customer’s deposition testimony confirmed that Fields confronted Brown about the stew. The customer stated that Fields had accused Brown of shoplifting and that Brown was restrained because Fields was standing in front of Brown.

OCGA § 51-7-60 precludes recovery for detention or arrest for suspicion of shoplifting under certain circumstances. It provides that no recovery can be had by the plaintiff “where it is established by competent evidence: (1) That the plaintiff had so conducted himself or behaved in such manner as to cause a man of reasonable prudence to believe that the plaintiff, at or immediately prior to the time of the detention or arrest, was committing the offense of shoplifting, as defined by Code Section 16-8-14; or (2) That the manner of the detention or arrest and the length of time during which such plaintiff was detained was under all the circumstances reasonable.” The two conditions for the absolute defense must both exist. K Mart Corp. v. Adamson, 192 Ga. App. 884 (386 SE2d 680) (1989).

By the statute, “the General Assembly provided a reasonable course of conduct which a merchant may follow in affording protection to his displayed merchandise without incurring an unreasonable exposure to tort liability in doing so . . . the merchant and his agents are . . . protected against liability if their conduct springs from a reasonable belief that the party detained or arrested was engaged in shoplifting in his store. [Cits.]” Swift v. S. S. Kresge Co., 159 Ga. App. 571, 573 (2) (284 SE2d 74) (1981).

The undisputed evidence showed that the store had a problem with deli items being served but not paid for. Brown had gone twice to the deli in the space of a few minutes, carrying other groceries. She had made three shopping forays in approximately twenty minutes. Neither deli clerk Gates nor Fields saw Brown check out the first two times. Neither saw Brown pay for the stew, even though Gates observed Brown, and Fields went to the checkout line to investigate for himself.

While questions of whether a defendant acted with reasonable prudence or whether the manner and length of the detention were reasonable are usually matters for the jury, they are not always so and may, under particular circumstances, be determinable as a matter of law. Crowe, supra at 588 (2). “ ‘What facts and circumstances amount to probable cause is a pure question of law.’ ” K Mart Corp. v. Griffin, 189 Ga. App. 225, 226 (375 SE2d 257) (1988).

Considering all the undisputed facts, Fields had cause as a reasonably prudent person to believe that Brown had not paid for the Brunswick stew. Brown herself testified that an inquiry under the circumstance might have been reasonable. As to the other factor required for the defense, the manner and length of the momentary encounter and simple questioning under the circumstances was reasonable as a matter of law and could not be found to constitute a tortious detention. See Lord v. K-Mart Corp., 177 Ga. App. 651 (1) (340 SE2d 225) (1986) [physical precedent only]. Any failure by store personnel to adhere to internal security guidelines would not demonstrate “unreasonableness” in and of itself. Luckie v. Piggly-Wiggly Southern, 173 Ga. App. 177, 180 (2) (325 SE2d 844) (1984); more would be needed.

OCGA § 51-7-60 shielded the store from liability for the alleged tortious misconduct of its employee. See Swift, supra at 572-573 (1). The statute covered the alleged conduct constituting false imprisonment, see Luckie, supra at 179 (2), as well as that complained of as slander inasmuch as there was no evidence that the store expressly directed or authorized its agents to impugn or cast aspersions on Brown’s integrity. See Swift, supra at 572 (2).

Brown could not recover for alleged intentional infliction of emotional distress because Fields’ actions were not so terrifying or insulting as naturally to humiliate, embarrass or frighten her. Crowe, supra at 588 (1). Instead, the evidence shows that Fields’ “actions were undertaken in a good-faith effort to discharge [his] supervisory responsibilities rather than with the malicious intention of inflicting emotional distress on the plaintiff.” Arrowsmith v. Williams, 174 Ga. App. 690, 692 (3) (331 SE2d 30) (1985).

Lastly, there was no evidence to support the allegation of defendant’s bad faith and stubborn litigiousness.

Brown’s failure to establish any of her asserted causes of action as a matter of law mandated that the jury verdict in her favor not be allowed to stand. The trial court properly granted the store’s motion for judgment notwithstanding the verdict.

Judgment affirmed.

Deen, P. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. Carley, C. J., McMurray, P. J., and Benham, J., dissent.

McMurray, Presiding Judge,

dissenting.

The trial court and the majority have concluded that, as a matter of law, defendant Winn-Dixie, Inc., is sheltered from tort liability under the provisions of OCGA § 51-7-60. However, when the evidence is viewed in the light most favorable to plaintiff Brown, I cannot agree that her conduct presented any basis for a reasonable belief that she was engaged in shoplifting. Therefore, since OCGA § 51-7-60 (1) & (2) must be read in the conjunctive, defendant may not rely upon this statutory protection from liability. K Mart Corp. v. Adamson, 192 Ga. App. 884 (386 SE2d 680). It follows that in my view, the jury’s verdict was authorized by the evidence at trial and the trial court’s entry of judgment notwithstanding the verdict was error. Therefore, I respectfully dissent from the affirmance of the trial court’s ruling overturning the verdict of the jury.

In order to properly consider the issues presented in the case sub judice, it may be helpful to recall that the criteria set forth in the first numbered paragraph of OCGA § 51-7-60 is “merely a restatement of the probable cause standard. . . .” J. C. Penney Co. v. Miller, 182 Ga. App. 64, 66 (3) (354 SE2d 682). See also K Mart Corp. v. Griffin, 189 Ga. App. 225, 226 (375 SE2d 257) and Arnold v. Eckerd Drugs of Ga., 183 Ga. App. 211, 213 (358 SE2d 632). Thus, the primary issue in the case sub judice may be stated as whether there was probable cause to detain or arrest plaintiff for shoplifting. “ ‘Probable cause existed if at the time of the arrest [or detention] the [defendant’s employees] had knowledge and reasonably trustworthy information about facts and circumstances sufficient to warrant a prudent man in believing that [plaintiff] had committed an offense.’ Borden v. State, 247 Ga. 477 (277 SE2d 9) (1981).” State v. Grant, 257 Ga. 123, 125 (1) (355 SE2d 646).

Decided November 30, 1989

Rehearing denied December 20, 1989

David J. Llewellyn, for appellant.

Fain, Major & Wiley, Roger W. Orlando, Gene A. Major, for appellee.

Of course, one who perpetrates a detention or arrest predicated on mere suspicion, which is less than probable cause, does not enjoy the protection of OCGA § 51-7-60. In my opinion this is just such a case. Although, I readily concede that the circumstances of the case sub judice were adequate to arouse the suspicions of defendant’s employees, those employees were well aware that their observation of plaintiff had not been continuous, but intermittent or sporadic. A man of reasonable prudence would recognize a number of possible innocent explanations for the absence of the container of Brunswick stew, which could have arisen during the lapses when plaintiff was not being observed. Thus, the prudent person, while suspicious, would acknowledge the gaps in his or her knowledge and refrain from reaching a speculative conclusion that plaintiff was shoplifting.

Defendant’s employees were not rendered impotent by the absence of probable cause, they were free to inquire of plaintiff concerning the absence of the Brunswick stew. Lord v. K Mart Corp., 177 Ga. App. 651, 653 (340 SE2d 225). Instead, there is evidence from which the jury in the case sub judice could conclude that plaintiff was detained, albeit briefly. “One who has done nothing to give the impression that he or she is shoplifting should not be subject to any detention at all for that offense. . . .” K Mart Corp. v. Adamson, 192 Ga. App. 886, supra. As the evidence in the case sub judice authorized the jury to conclude that plaintiff was detained by defendant’s employees without probable cause, the trial court’s entry of judgment notwithstanding the verdict should be reversed.

I am authorized to state that Judge Benham joins in this dissent.


author: McMurray, Presiding Judge.

text:
    A89A2093.
    JACKSON v. UNITED STATES SHOE CORPORATION et al.
    (389 SE2d 544)
   McMurray, Presiding Judge.

Plaintiff Jackson appeals from the dismissal of her tort action against defendant The United States Shoe Corporation d/b/a Casual Corner and it’s employee defendant Hart. The superior court’s order states: “The within and foregoing case having been called for trial and the Plaintiff’s attorney having notified the Court during the Voir Dire Examination of the jury that she was withdrawing from representation of the Plaintiff without the permission of the Court and Plaintiff’s attorney having notified the Court that she was leaving the Courtroom without the permission of the Court and would not participate further in the trial of this action; It is hereby ordered and decreed that the Plaintiff’s case is hereby dismissed for want of prosecution.” Held:

Decided December 1, 1989

Rehearing denied December 20, 1989.

W. Roy Hays III, for appellant.

Lewis & Taylor, John M. Taylor, for appellees.

“It is clear that a dismissal for failure to prosecute is discretionary and is subject to appellate review only for abuse of that discretion. Spyropoulos v. John Linard Estate, 243 Ga. 518, 519 (255 SE2d 40).” Roberts v. Rountree, 180 Ga. App. 302, 303 (348 SE2d 765b “ ‘The burden of showing harmful error is on the appellant, and this he must do by the record; it may not be done by assertions appearing only in his brief or in his enumerations of error. (Cits.)’ Bhatia v. West Cash &c., Inc., 157 Ga. App. 145, 146 (276 SE2d 656) (1981).” Lankford v. Karkotsky, 171 Ga. App. 283 (319 SE2d 117). In the case sub judice, the superior court’s order, dismissing plaintiff’s action for failure to prosecute, provides the only information as to the circumstances upon which that order is predicated. The information contained in the order is not sufficient to show an abuse of the superior court’s discretion, and therefore, we must affirm.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    A89A2130.
    HERCULES AUTOMOTIVE, INC. v. HAYES et al.
    (389 SE2d 571)
   Sognier, Judge.

Hercules Automotive, Inc. brought suit against its former employee, Robert Hayes, and Hayes’ wife, Yvonne, to recover the amount it paid the C & S Bank as guarantor of a note on which the Hayeses had defaulted. The Hayeses counterclaimed, alleging claims of breach of the employment contract as well as quantum meruit. Shortly thereafter, the Hayeses declared bankruptcy and discharged the debt to Hercules. The counterclaim was tried before a jury, which returned a verdict for the Hayeses on the breach of contract theory and awarded expenses of litigation and attorney fees pursuant to OCGA § 13-6-11. Hercules’ motion for judgment notwithstanding the verdict or, in the alternative, a new trial, was denied and Hercules appeals.

1. Appellees’ motion to dismiss the appeal is denied.

2. Appellant contends the trial court erred by failing to direct a verdict in its favor because the discharged debt was greater in amount than the sum sought by appellees, and it was entitled to a setoff of the amount of the discharged debt as a matter of law regardless of any alleged fault in causing appellees’ default. The record reveals, however, that appellant’s motion for a directed verdict at the conclusion of appellees’ evidence was not made on that ground, but on a different and specific ground, and appellant subsequently renewed its motion for a directed verdict at the close of the evidence on that same specific ground. Moreover, appellant did not object to the trial court’s instruction to the jury that “[appellant] may ... set off or obtain a credit for the amount of financial loss or damage it has sustained by virtue of its obligations under the guaranty agreement, unless you find from the evidence presented that [appellant] itself caused [appellees’] default on the note. If you find from the evidence presented that [appellant] caused [appellees’] default, then set-off may not be exercised by [appellant].”

“A motion for a directed verdict shall state the specific grounds therefor.” OCGA § 9-11-50 (a). “The function of the requirement that the specific grounds be stated ‘is to assure that the trial court has an adequate basis for its decision.’ [Cit.]” Grabowski v. Radiology Assoc., 181 Ga. App. 298, 300 (352 SE2d 185) (1986). “A ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal. In the case sub judice, [appellant] failed to raise this issue in its motions for

directed verdicts brought after the close of [appellees’] case and at the close of evidence. Consequently, this enumeration of error presents nothing for appellate review.” (Citations and punctuation omitted.) Leader Nat. Ins. Co. v. Kemp & Son, 189 Ga. App. 115, 116-117 (1) (375 SE2d 231) (1988).

3. Because appellant’s motion for j.n.o.v. as to this issue was not based on a motion for directed verdict on that ground, see Div. 2, supra, we may not consider its contention that the trial court erred by denying its motion for j.n.o.v. on the setoff issue. See Tanner v. Gilleland, 186 Ga. App. 377, 378 (2) (367 SE2d 257) (1988).

4. Appellant also contends for several reasons that the trial court improperly submitted to the jury the issue of expenses of litigation and attorney fees. Pretermitting the question of whether such an award is recoverable pursuant to OCGA § 13-6-11 despite the existence of a bona fide controversy when the ground alleged is bad faith in the underlying transaction (but see Powell v. Watson, 190 Ga. App. 375 (378 SE2d 867) (1989)), the transcript reveals that contrary to appellees’ argument, no evidence of the reasonableness of the attorney fees was adduced. Counsel for appellees presented a “bill of expenses and advances incurred” in appellees’ representation which he stated was “reasonable,” but he admitted that it showed “only . . . expenses and costs” expended by counsel and not hours, rates, or any other indicator of the value of professional services rendered. Compare Georgia Bldg. Svcs. v. Perry, 193 Ga. App. 288 (6) (387 SE2d 898) (1989). The only evidence admitted with respect to the amount of professional services was a contingent fee contract, which is insufficient to support the award of attorney fees. “ ‘An attorney cannot recover for professional services without proof of their value.’ [Cit.]” First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (4) (285 SE2d 203) (1981). Accordingly, because the award of attorney fees was not supported by sufficient evidence, see id. at 817-818, we reverse the award of attorney fees and remand this case to the trial court with direction that the attorney fee portion of the judgment be stricken. Id. at 818.

Decided December 5, 1989

Rehearings denied December 14 and December 20, 1989

Perry, Walters & Lippett, C. Richard Langley, for appellant.

Guttshall & Guttshall, Russell M. Guttshall III, for appellees.

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

Banke, P. J., and Pope, J., concur.


author: Benham, Judge. Deen, Presiding Judge,

text:
    A89A1675.
    A89A1676.
    STATE OF GEORGIA v. ANDERSON et al. STATE OF GEORGIA v. MEERS.
    (390 SE2d 68)
   Benham, Judge.

This is an appeal by the State from a judgment entered on a directed verdict for appellees, the defendants in actions brought for the forfeiture of cash and jewelry seized in connection with arrests arising from a sale of 45 pounds of marijuana. Anderson was the driver and Meers was a passenger in a van from which the marijuana was transferred to a car driven by an undercover officer. After the arrests of appellees, Meers’ purse was searched and found to contain a small quantity of marijuana and $2,621.06 in cash. Also seized from the van was a bag identified as a man’s shaving bag containing $20,000 and some gold jewelry. A forfeiture action naming Meers was commenced against the money found in her purse, and a separate action naming Anderson was commenced against the money and jewelry found in the bag. Meers intervened in that action. After the State put on evidence concerning the arrests and the seizure of the items sought to be condemned, the trial court granted appellees a directed verdict, finding that the State had proved no more than that the money and jewelry were found in proximity to drugs.

Decided December 4, 1989

Rehearing denied January 2, 1990

Robert E. Keller, District Attorney, Lisa A. Curia, Assistant Dis trict Attorney, for appellant.

In Bloodworth v. State, 185 Ga. App. 880 (366 SE2d 324) (1988), this court upheld the condemnation of money found in a purse which contained drugs and which was in close proximity to a large quantity of controlled substances. The sole enumeration of error in that case was the denial of the defendants’ motion for directed verdict, and we held it was proper because there was sufficient evidence to find that the money had been used or was intended to be used to facilitate the unlawful distribution, dispensing, or possession of controlled substances found in close proximity thereto. In other words, a showing that money is found in close proximity to controlled substances is sufficient to establish a prima facie case in an action for condemnation of that money. Because the evidence in the present case is at least as supportive of the conclusion reached in Bloodworth as was the evidence in that case, we hold that it presented a jury question and that the direction of the verdict was error.

Judgments reversed.

Birdsong, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

The majority opinion holds that “a showing that money is found in close proximity to controlled substances is sufficient to establish a prima facie case in an action for condemnation of that money.” As I read OCGA § 16-13-49 (a) (6), the State’s burden in such a condemnation case is two-fold: (1) it must be shown that the money was in close proximity to a controlled substance or marijuana; and (2) it must be shown that the money was used to facilitate some activity with the contraband.

I do not believe that Bloodworth v. State, 185 Ga. App. 880 (366 SE2d 324) (1988), relied upon by the majority opinion, stands for the proposition that a showing of close proximity also shows the illegal use. In Bloodworth, the other contents of the defendant’s purse, viz., syringes, rolling papers, razor blades, a spoon, and triangular plastic bags containing powder, were significant factors in the determination that the evidence supported a finding of illegal use.

The majority opinion in the instant case effectively eliminates the second part of the State’s burden of proof. Accordingly, I must concur in the judgment only.

Barry W. Bishop, Martha E. McElyea, for appellees.

       Appellees were arrested on April 18, 1987. The forfeiture petition naming Anderson was filed on May 18, 1987, and the petition naming Meers on May 20, 1987. The actions were tried before a jury on January 23 and 24, 1989, and judgments for appellees were entered on February 6, 1989. Notices of appeal were filed on February 14, 1989. The cases were docketed here on May 31, 1989. Appellant’s brief was filed on June 29, 1989, and appellees’ on July 18, 1989. The case was submitted in September 1989.