text:
    A00A2054.
    HUNT v. THE STATE.
    (542 SE2d 591)
   Mikell, Judge.

Steven L. Hunt was charged with driving under the influence of alcohol to the extent that he was a less safe driver (“DUI”), obstruction of an officer, driving with an open container, following another automobile too closely, having no proof of insurance and driving without a license. At trial, Hunt admitted his guilt in all of the charges except DUI and obstruction of an officer. The trial court directed a verdict of acquittal on the obstruction charge, and the jury returned a guilty verdict on the remaining counts. Hunt appeals his DUI conviction, contending that the evidence was insufficient, that the trial court erred in admitting certain evidence and by improperly expressing its opinion to the jury and that he was denied effective assistance of counsel. We find no merit in these contentions and affirm the judgment.

1. First, Hunt contends that the evidence at trial was insufficient to sustain his conviction of driving under the influence of alcohol to the extent that it was less safe for him to drive. OCGA § 40-6-391 (a) (1).

On appeal, Hunt no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to support the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). Our review is limited to determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

So viewed, the evidence shows that on August 18, 1996, at approximately 1:30 a.m., Hunt’s vehicle struck the rear of Addie Kirkland’s car, which was stopped at a red light. Kirkland testified that the force of the impact caused her car to strike the car in front of her, which was also stopped at the light. Kirkland further testified that Hunt attempted to drive around her car, but he struck it again. According to Jacob Grant, a passenger in the vehicle struck by Kirkland, Hunt attempted to leave the scene, but Grant stopped him and escorted him back to his car. Next, Hunt again fled the scene, jumping two fences before he was apprehended by Corporal Keith Sisco of the Savannah Police Department.

Corporal Sisco testified that Hunt smelled of alcohol, was unsteady on his feet and had bloodshot eyes. Two open containers of beer were discovered in Hunt’s vehicle. At trial, Hunt admitted consuming alcohol prior to the accident.

After Hunt’s arrest, Corporal Gregory S. Ernst read him the implied consent notice, and Hunt agreed to submit to breath testing. Corporal Sisco testified that when Corporal Ernst attempted to administer the test, Hunt pretended to blow into the instrument by puffing out his cheeks, but that he failed to “fog up” the tube. According to Corporal Ernst, Hunt suggested that the instrument was not working properly; however, the officer successfully completed a test cycle. Corporal Ernst again attempted to administer the test, but Hunt gave a series of small puffs that were insufficient to register on the instrument, despite the officer’s repeated instructions to exhale continuously. Hunt was charged with DUI by refusal to submit to testing.

We conclude that the evidence clearly supports the jury’s verdict and would enable any rational trier of fact to find Hunt guilty of driving under the influence of alcohol to the extent that he was a less safe driver. See Harding v. State, 242 Ga. App. 609, 610 (530 SE2d 514) (2000).

2. Next, Hunt argues that the trial court erred in denying his pretrial motion to permit the jury to test the Intoxilyzer 5000. Hunt requested that the jurors “be allowed to blow into said breath machine” in order for them to determine “the volume of air and breathing effort required to operate such a machine.”

It is well settled that “[generally, whether courtroom demonstrations will be permitted rests within the sound discretion of the trial court.” Grant v. State, 239 Ga. App. 608, 611 (3) (521 SE2d 654) (1999). Appellate courts will not interfere with the admission of evidence absent an abuse of that discretion. Hartman v. Shallowford Community Hosp., 219 Ga. App. 498, 501 (3) (466 SE2d 33) (1995). It is certainly within the trial court’s discretion to deny a request that the jury conduct its own experiment. Hunt has failed to establish an abuse of discretion in the court’s denial of the motion.

3. Hunt enumerates as error the court’s admission of evidence of his refusal to submit to breath testing. We conclude, however, that the court did not err in admitting such evidence.

OCGA § 40-6-392 (d) provides that “[i]n any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his . . . breath ... at the time of his arrest shall be admissible in evidence against him.” Hunt argues that he did not refuse to submit to testing; rather, he was unable to provide a sample.

In two cases involving similar facts, we held that evidence of a defendant’s failure to provide an adequate breath sample was admissible to demonstrate a refusal to submit meaningfully to testing. Komala v. State, 237 Ga. App. 236, 237 (2) (515 SE2d 185) (1999); Allen v. State, 229 Ga. App. 435, 437-438 (1) (494 SE2d 229) (1997). “Unless encumbered by a physical or medical limitation, a person submitting to the breathalyzer test may be considered to have refused to comply if an adequate breath sample has not been provided.” Komala, supra, 237 Ga. App. at 237 (2). An adequate breath sample is defined in OCGA § 40-6-392 (a) (1) (B) as “a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.”

Hunt contends that he failed to provide an adequate sample because he suffers from Bell’s palsy and because he hit his head in the accident. We conclude, however, that Hunt failed to meet his burden of establishing that he was unable to provide an adequate breath sample due to a medical condition. See Bartnick v. State, 203 Ga. App. 369, 370 (416 SE2d 739) (1992). Hunt testified that he suffers from Bell’s palsy; however, he did not present the testimony of a physician or any medical evidence of the effect the disorder might have on his ability to produce an adequate breath sample. Similarly, Hunt did not present any medical evidence that hitting his head on the windshield rendered him unable to submit meaningfully to the test.

Furthermore, evidence of Hunt’s behavior and medical condition immediately following the accident contradicts his argument that he was unable to provide a breath sample. Witnesses testified that Hunt was able to run from the scene of the accident twice and to jump two fences. The police officers testified that Hunt refused medical treatment at the scene of the accident, and that he was taken to the hospital where he was examined and released. At the time Corporal Ernst administered the test, Hunt told the officers that he did not have any medical conditions that would interfere with his ability to perform a breath test.

Based on Hunt’s failure to establish his medical inability to provide an adequate breath sample and on evidence of his behavior following the accident, we conclude that the trial court did not abuse its discretion in admitting evidence of Hunt’s refusal to submit to the test.

4. In a related argument, Hunt contends that the court erred in admitting any evidence of the breath test, alleging that the state failed to show that the Intoxilyzer 5000 was in proper working order. We disagree.

OCGA § 40-6-392 (a) (1) (A) provides that, in order for evidence of chemical analysis of a person’s breath to be admissible,

[the] analysis . . . shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine ... in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose.

In the case sub judice, the state presented evidence that use of the Intoxilyzer 5000 has been approved by the Georgia Bureau of Investigation and certification that the instrument was in good working order at the time of Hunt’s attempted test. Furthermore, Corporal Ernst possessed a valid permit to operate the Intoxilyzer 5000. Thus, because the state met all of the statutory requirements, the trial court did not err in admitting evidence of the officers’ attempt to test Hunt’s breath.

5. Next, Hunt argues that the trial court erred by improperly expressing its opinion when it instructed the jury on the law of implied consent. Specifically, during cross-examination of Corporal Ernst, the court instructed the jury as follows in overruling a defense objection:

Well, I think yours has been a misstatement of the law, too, counselor, in your questioning. I will instruct the jury at this time that the law says that the police officer may make the designation of what test shall be made, and he only has to make one request. Whatever he designates, that is the one the defendant has to take, under the law. If he fails to take it, under the circumstances, then he has refused. He has no right to another test until he takes the first test requested by the officer. That’s the law.

According to OCGA § 17-8-57, it is error for a judge to “express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Until a recent Supreme Court decision, the question of whether OCGA § 17-8-57 has been violated would not be reached on appeal unless an objection or motion for mistrial was made. Lucas v. State, 197 Ga. App. 347 (1) (398 SE2d 417) (1990). Hunt made no such objection or motion; therefore, technically this issue has not been preserved for appeal. See id. See also Miller v. State, 180 Ga. App. 525 (349 SE2d 495) (1986); Thomas v. State, 158 Ga. App. 97, 98 (2) (279 SE2d 335) (1981).

However, in a recent opinion, Paul v. State, 272 Ga. 845 (537 SE2d 58) (2000), the Supreme Court held that when a judge expressed his opinion of a case in violation of OCGA § 17-8-57, the reviewing court should apply the plain error rule to determine whether the court had committed an obvious error even if the defendant failed to preserve the issue by objecting or moving for a mistrial. Before Paul, the Supreme Court had applied the plain error rule only to death penalty cases; however, with that decision it extended the rule to all criminal cases. Therefore, despite counsel’s failure to preserve this issue, we must consider whether the court violated OCGA § 17-8-57 and, if so, whether the violation constituted an obvious error or one that “seriously affect(ed) the fairness, integrity, and public reputation of these judicial proceedings.” Paul, supra at 849, citing Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986).

We need not reach the plain error analysis in this case, however. Contrary to Hunt’s argument, the court’s instruction was not an improper expression of its opinion of the case; rather, it was an accurate statement of the law. OCGA §§ 40-5-67.1; 40-6-392. See Lucas, supra. Unlike the judge in Paul who “intimated his opinion as to the credibility of witnesses and the guilt of the defendant,” the court in the case sub judice simply instructed the jury on the applicable law without commenting on the evidence or the guilt of the defendant. Furthermore, at the close of the trial, the judge charged the jury that

[n]othing I have said or done at any time during the trial is to be considered by you as evidence of any fact or as indicating any opinion concerning any fact, the credibility of any witness, the weight of any evidence, or the guilt or innocence of this defendant.

Thus, the court did not violate OCGA § 17-8-57.

6. Finally, Hunt argues that he was denied effective assistance of counsel. The jury convicted Hunt on June 13, 1997, and counsel filed a notice of appeal that day. Hunt’s trial counsel withdrew on January 26, 1998. Hunt has pursued this appeal pro se. Thus, this appeal presents his first opportunity to raise this claim. Normally, we remand claims of ineffective assistance of counsel to the trial court for a hearing; however, we find remand unnecessary in this case, because, as a matter of law, the record does not support Hunt’s assertions. See Halthon-Howard v. State, 234 Ga. App. 229, 231 (2) (506 SE2d 415) (1998).

In order to establish ineffective assistance of counsel, Hunt must both show that his trial counsel’s performance was deficient and establish a likelihood that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Zant v. Moon, 264 Ga. 93, 97 (2) (440 SE2d 657) (1994). Trial counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment, and judicial scrutiny of counsel’s performance must be highly deferential. Pace v. State, 239 Ga. App. 506, 510 (7) (521 SE2d 444) (1999).

Hunt contends that his trial counsel was deficient in selecting three jurors. First, Hunt argues that counsel’s selection of juror Patricia Bynes constituted deficient performance; however, the record shows that Bynes stated during jury selection that she did not think she could sit in judgment of another person. Such a response could certainly be interpreted as favorable to the defense.

Next, Hunt challenges counsel’s selection of juror Colleen Melton because she has donated money to Mothers Against Drunk Driving (“MADD”) and had a brother who was killed in a drunk driving accident. While such responses may render her a questionable choice for the defense, the record also reflects that Melton has three friends who have been charged with DUI. The fact that Melton has personal relationships with individuals who have been charged with DUI was arguably favorable to the defense.

Decided November 21, 2000

Reconsideration denied January 5, 2001

Steven Hunt, pro se.

Spencer Lawton, Jr., District Attorney, Allison E. Bailey, Assistant District Attorney, for appellee.

Finally, Hunt argues that counsel’s performance was deficient in selecting juror Francis Alegretti, because he had made a donation to MADD. We note, however, that Alegretti also said that he felt he could be a fair and impartial juror.

Accordingly, we conclude that Hunt has failed to demonstrate that counsel’s performance during jury selection was deficient. Because Hunt has failed to demonstrate deficient performance, we need not reach the issue of whether such performance prejudiced the defense.

Furthermore, it is well settled that “[t]he decisions on . . . what jurors to accept or strike . . . and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Punctuation omitted.) Thompson v. State, 191 Ga. App. 906 (1) (383 SE2d 339) (1989), citing Austin v. Carter, 248 Ga. 775, 779 (285 SE2d 542) (1982). We have also held that “[c]ounsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel.” Scott v. State, 238 Ga. App. 258, 260 (2) (518 SE2d 468) (1999).

Therefore, we conclude that counsel’s performance did not fall outside the wide range of reasonable professional judgment, and we will not judge his trial strategy in hindsight. Lee v. State, 199 Ga. App. 246, 247 (3) (404 SE2d 598) (1991).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A2122.
    JORISCH v. RHYTHM FESTIVAL, INC.
    (544 SE2d 459)
   Phipps, Judge.

Paula Jorisch brought this negligence action against Rhythm Festival, Inc. (Rhythm) and Handicapped Driver Services, Inc. (HDS). Jorisch must use a wheelchair because she has cerebral palsy. While Rhythm was transporting Jorisch in a van which it had rented from HDS, the system securing Jorisch’s wheelchair failed. As a result, the wheelchair toppled over. Jorisch sued to recover for personal injuries.

The trial court granted HDS’s motion for directed verdict. The jury returned a verdict in favor of Rhythm. Although Jorisch was represented by counsel at trial, she filed this pro se appeal after her motion for new trial was denied. She contends that the court erred in finding a federal regulation promulgated under the Americans with Disabilities Act (ADA) inapplicable, in directing a verdict in favor of HDS, and in instructing the jury on contributory negligence. We find no error and affirm.

Jorisch attended a weekend music festival sponsored by Rhythm. Rhythm provided transportation for the disabled in a specially equipped van rented from HDS. Kathryn McKee drove the van. Throughout the weekend, McKee positioned Jorisch’s wheelchair so that it was facing the rear of the van. According to Jorisch, her wheelchair rocked from side to side with such unusual force that she had to be held in place by a Rhythm employee while she was a passenger in the van. Jorisch testified that she therefore asked to be transported in another vehicle, but none was available. While the HDS van was being used to take Jorisch to the airport at the end of the festival, her wheelchair fell backward and landed on an adjacent wooden seat. Jorisch averred that the Rhythm employee who had been holding her had gone to the front of the van to give the driver directions. In her testimony, McKee denied that Jorisch’s wheelchair had ever been rocking sideways or that Jorisch had to be held in place during operation of the van.

HDS’s van is equipped with a wheelchair tie-down system which includes two tracks running from the front to the rear of the van. Wheelchairs are held to one track or the other with a strap which has a clip and spring on one end and two hooks on the other end. The hooks are fastened to the wheelchair and the clip is attached to the track, causing the spring and strap to tighten. Jorisch’s wheelchair toppled over because the clip became unattached from the track. McKee described this to Jorisch as a mechanical failure or defect.

Michael Dresdner, HDS’s owner, purchased the van’s wheelchair securement system from Creative Controls, Inc. (CCI). The system came equipped with lap belts and shoulder harnesses, but HDS installed only the lap belts. In her complaint, Jorisch charged HDS with negligence in failing to install the shoulder harnesses and in certain other regards. She charged Rhythm with negligence in failing to secure her properly in the van.

1. HDS has filed a motion to dismiss this appeal as to it, on grounds that Jorisch filed the appeal following denial of her motion for new trial and did not challenge the grant of HDS’s motion for directed verdict in her new trial motion. Because a party on appeal is not limited to the grounds urged in her motion for new trial, HDS’s motion to dismiss is denied.

Additionally, HDS argues that, in her enumeration of errors, Jorisch has not properly preserved the issues she seeks to raise on appeal. In considering whether Jorisch has preserved issues for appellate review,

we are guided by the general rule that “(p)ro se pleadings are held to less stringent standards than pleadings that are drafted by lawyers” ([cit.]), and by the statutory provision that “(w)here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing . . . what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding . . . that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” [Cit.]

We review the issues raised by Jorisch in accordance with these standards.

2. The first issue for decision is whether the trial court erred in granting HDS’s motion in limine to exclude evidence concerning or reference to an ADA regulation requiring the provision of shoulder harnesses for wheelchair users.

(a) In resolving this issue, we are presented with highly technical questions concerning interpretation of regulations enforcing the ADA. These regulations are codified in Parts 37 and 38 of Title 49 of the Code of Federal Regulations. The purpose of Part 37 is to implement the transportation provisions of Titles II and III of the ADA. The purpose of Part 38 is to provide minimum guidelines and requirements for accessibility standards in Part 37 for transportation vehicles required to be accessible by the ADA.

The regulation at issue, 49 CFR § 38.23 (d) (7), was promulgated under Title III of the ADA. Section 38.23 (d) (7) provides, among other things, that entities which provide or operate designated transportation services or systems must furnish a shoulder harness as well as a seat belt for each wheelchair provided in vehicles used to transport disabled passengers. The initial question is whether HDS is an entity which provides transportation services or operates a transportation system within the meaning of the regulations set forth in Part 37.

In enacting the ADA, Congress provided:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.

Section 37.21 (a) (2) of Title 49 of the regulatory code enforces this provision of the ADA by applying Part 37 to “[a]ny private entity that provides specified public transportation.” Section 37.3 defines “[sjpecified public transportation” as meaning “transportation by bus, rail, or any other conveyance (other than aircraft) provided by a private entity to the general public, with general or special service (including charter service) on a regular and continuing basis.”

Section 37.21 (a) (3) of Title 49 applies Part 37 to “[a]ny private entity that is not primarily engaged in the business of transporting people but operates a demand responsive or fixed route system.” Section 37.3 defines “[d]emand responsive system” as meaning

any system of transporting individuals, including the provision of designated public transportation service by public entities and the provision of transportation service by private entities, including but not limited to specified public transportation service, which is not a fixed route system.

Section 37.3 defines “fixed route system” as one “on which a vehicle is operated along a prescribed route according to a fixed schedule.” Under 49 CFR § 37.23 (d),

[a] private entity that provides fixed route or demand responsive transportation service under contract or other arrangement with another private entity shall be governed, for purposes of the transportation service involved, by the provisions of [Part 37] applicable to the other entity.

HDS modifies vehicles for disabled individuals and also leases and rents modified vehicles for use by commercial entities in transporting disabled passengers. Therefore, HDS provides transportation vehicles to private individuals and to entities which provide transportation services. HDS does not provide “specified public transportation service” or operate a “demand responsive or fixed route systern,” within the meaning of 49 CFR §§ 37.3; 37.21 (a) (2), (3); or 37.23 (d).

(b) Jorisch argues that 49 CFR § 38.23 (d) (7) nonetheless applies to Rhythm under §§ 37.171 and 38.171. Jorisch’s reliance on these regulations is misplaced.

Subsection (a) of 49 CFR § 38.171 states that new, used, and remanufactured vehicles for systems not covered by other subparts of Part 38, to be considered accessible by regulations in Part 37, shall comply with subpart H (§§ 38.171 through 38.179). Even if § 38.171 was applicable here, it does not appear that there has been a violation of any of the sections in subpart H.

Section 37.171 states that

[a] private entity not primarily engaged in the business of transporting people which operates a demand responsive system shall ensure that its system, when viewed in its entirety, provides equivalent service to individuals with disabilities, including individuals who use wheelchairs, as it does to individuals without disabilities.

J

Section 37.171 also provides that the standards of § 37.105 shall be used to determine if the entity is providing “equivalent service.” The standards set forth in § 37.105 concern service features such as fares, service availability, and geographic areas of service. Section 37.105 does not embrace the accessibility standards set forth in Part 38.

Consequently, the trial court did not err in finding 49 CFR § 38.23 (d) (7) inapplicable to HDS.

3. In reliance on Hansen v. Abrasive Engineering &c., Jorisch argues that even if the ADA does not govern HDS’s activities, its applicability to Rhythm provides a basis for finding HDS negligent in failing to comply with its safety standards.

In Hansen, an industrial worker who had been injured while cleaning a machine brought a negligence action against the manufacturer of the machine for failing to incorporate features consistent with safety rules promulgated under the federal Occupational Safety and Health Act (OSHA). Even though OSHA applied to the plaintiff’s employer and not to the manufacturer, the Oregon Supreme Court held that the safety rules were relevant to the standard of care applicable to the manufacturer because it designed and manufactured the machine for use by an employer who was governed by the rules.

The question thus presented is whether HDS outfitted its van for use by an entity governed by the ADA. Rhythm, which is now defunct, sponsored music festivals. Because Jorisch failed to present any evidence that Rhythm provided transportation to the public on a regular and continuing basis, Rhythm cannot be considered a “private entity that provide [d] specified public transportation” under 49 CFR § 37.21 (a) (2). It is, however, arguable that Rhythm was a “private entity . . . not primarily engaged in the business of transporting people but operating] a demand responsive . . . system” under § 37.21 (a) (3). But under § 37.101 (e), private entities providing demand responsive transportation are not required to ensure that new vehicles with a seating capacity of 16 or fewer are accessible to individuals with wheelchairs' Because it is undisputed that the van which Rhythm rented from HDS had a seating capacity of fewer than 16 people, § 38.23 (d) (7) did not apply to Rhythm here.

4. And even if we were to find 49 CFR § 38.23 (d) (7) in some way applicable, it does not appear from the parties’ references to the record that Jorisch has presented sufficient evidence to establish a causal relationship between the absence of a shoulder harness and the mishap causing her injuries.

In her testimony, Jorisch acknowledged that the purpose of a shoulder harness is to secure the passenger within the wheelchair rather than to secure the wheelchair to the floor and that she remained in the wheelchair even after it toppled over. Jorisch later testified that it was her understanding that the wheelchair would not have fallen if there had been a shoulder harness. But she has admitted that her understanding of the reasons for the fall was based on explanations provided by others. And she has cited no testimony from any other witness or other evidence showing or indicating that the presence of a shoulder harness would have prevented the fall of the wheelchair. To the contrary, an instruction booklet provided by CCI for its wheelchair securement system indicates that the wheelchair is secured to the floor by means other than the shoulder harness.

5. There is no merit in Jorisch’s argument that the instruction booklet provides evidence that installation of shoulder harnesses by owners of commercial disability vans is standard practice in the industry.

The booklet contains merely a photograph of a wheelchair occupant using a shoulder harness, but in no way indicates that provision of shoulder harnesses is a standard industry practice. Evidence to the contrary was presented by HDS and was not rebutted by Jorisch.

6. At trial, Jorisch also sought a recovery for negligence by HDS based on theories that there was a defect in the wheelchair securement system which HDS failed to correct and that HDS failed to reasonably inspect the van prior to renting it to Rhythm. The trial court found no evidence in support of these allegations. Neither do we.

Although McKee theorized that the strap securing the wheelchair to the tracking system may have caused the spring to come loose because the strap was worn, she testified that there was nothing in the appearance of the strap that provided any indication it would not function properly. HDS’s OSHA compliance officer, Kenneth Johnson, testified without contradiction that HDS had no prior complaints that the securement system in the van was not working properly, that the van was inspected prior to being rented to Rhythm, and that the securement system was found to be in good working order. Although Johnson could not recall whether he or another HDS employee conducted the inspection, he identified a pre-rental inspection form which documented that the inspection had been performed. Testimony given by both Johnson and Dresdner showed that after the van was returned by Rhythm, HDS again inspected the tie-down system, found no defects, and continued to rent the van without incident. This testimony was not contradicted by Jorisch, as she did not conduct an inspection of the van’s wheelchair securement system for defects before or after the accident.

Decided January 5, 2001

Paula Jorisch, pro se.

Dennis, Corry & Porter, Thomas D. Trask, Noah H. Pines, Gorby, Reeves, Peters & Burns, J. Franklin Burns, Christine A. Carson, for appellee.

7. Finally, Jorisch contends that the trial court erred in instructing the jury on contributory negligence under North Carolina law.

The accident in this case occurred while Rhythm was using the van to transport Jorisch in North Carolina. HDS rented the van to Rhythm in Georgia. Therefore, it could be argued that the substantive tort law of either state should be applied. Because Jorisch did not object to the complained-of jury instruction, she has waived her challenge to the court’s application of North Carolina law.

Judgment affirmed.

Johnson, P. J, and Smith, P. J., concur.

       OCGA § 5-5-40 (g).

        Cotton v. Bank South, 212 Ga. App. 1, 3 (1) (440 SE2d 704) (1994).

       49 CFR § 37.1.

         49 CFR § 38.1.

       42 USCA § 12184.

       317 Ore. 378 (856 P2d 625) (1993).

       See Young v. W. S. Badcock Corp., 222 Ga. App. 218, 219 (1) (474 SE2d 87) (1996).

       See Tyler v. Bennett, 215 Ga. App. 87, 88 (2) (449 SE2d 666) (1994); OCGA § 5-5-24 (a).


author: Mikell, Judge.

text:
    A00A2488.
    In the Interest of L. J. L. et al., children.
    (543 SE2d 818)
   Mikell, Judge.

Challenging the sufficiency of the evidence, the mother appeals the termination of her parental rights to two of her children, L. J. L. and R. L. For the reasons set forth below, we reverse the juvenile court’s order terminating appellant’s parental rights.

[T]he appropriate standard of appellate review in a case where a parent’s rights to his child have been severed is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.

So viewed, the evidence shows that appellant is a recovering drug addict, whose addiction began in 1992. She has four children: C. L. , nine; R. L., five; L. J. L., four; and R. M., three. C. L. has been in appellant’s mother’s custody since 1992. R. L. and L. J. L., the children at issue in this case, have always lived with appellant and/or her mother, except during periods when they were in foster care. R. M. has lived with appellant and/or her paternal grandmother since her birth, when she tested positive for cocaine.

On April 23, 1998, R. L., L. J. L., and R. M. were placed into the temporary legal custody of the Fulton County Department of Family & Children Services (the “Department”), after appellant failed to pick them up from a day care center. Appellant testified that she asked her niece, who worked at the day care center, to take the children to their grandmother’s house, but her niece failed to do so. When appellant arrived at her mother’s house that day, she learned that her children were with the Department. The Department released the children to appellant’s mother on April 24, 1998. From then until March 1999, appellant habitually used drugs. She had no contact with the Department until she had begun to take the steps necessary to regain custody of her children.

The Department filed a deprivation petition on May 27, 1998, requesting custody of R. L., L. J. L., and R. M. On September 8, 1998, the juvenile court found that all three children were deprived. Consequently, it granted temporary custody of R. M. to her paternal grandmother and granted custody of R. L. and L. J. L. to the Department. R. L. and L. J. L., however, were released to the custody of appellant’s mother from December 1998 through July 1999.

The Department filed its petition for termination of parental rights to R. L. and L. J. L. on April 20, 1999, and the hearing was set for July 12, 1999. Appellant appeared in court for the hearing. Mary Fields, the Department’s social worker who was assigned to the case, also appeared. This was Fields’ first contact with appellant. She gave appellant a copy of the thirty-day and six-month reunification case plans. To comply with the case plan, appellant was required to complete a drug treatment program as well as a parenting skills program. Also, the plan required that appellant visit and maintain monthly contact with the children and find adequate living arrangements for them.

The termination hearing was held on December 14, 1999. Appellant introduced evidence tending to show that she had satisfied each goal of the case plan. She testified that on March 12, 1999, she stopped using drugs. She introduced into evidence a certificate from an intensive outpatient drug program that she completed on August 27, 1999. She testified that she was still drug-free and submitted the results of three drug screening tests as evidence of her sobriety. Appellant also introduced into evidence a certificate of completion from a parenting skills program, dated November 16, 1999.

Appellant testified that after she moved in with her mother in March 1999, she saw her children almost every day and contributed to their support. Fields was unaware of appellant’s visits with her children before July 1999. However, she testified that appellant had been visiting R. L. and L. J. L. monthly at her office since then. During those visits, appellant told Fields that she was enrolled in parenting classes and a drug treatment program. Appellant also told Fields that she had applied for housing vouchers with the housing authority.

At the hearing, appellant introduced her voucher for public housing into evidence and testified that she had found suitable accommodations. In spite of appellant’s efforts to comply with the reunification plans, however, Fields opined that appellant’s parental rights should be terminated because of her history. Fields testified that appellant had completed the goals once before when R. L. was removed from her custody. Within six months after he was returned to appellant’s care in December 1997, the incident of April 23, 1998, occurred. The juvenile court terminated appellant’s parental rights.

“Although we are reluctant to reverse a trial court’s determination, there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship.” To sever the relationship, a juvenile court must “first determine whether there is present clear and convincing evidence of parental misconduct or inability.” To determine this, the juvenile court must find that: (1) the child is deprived; (2) lack of proper parental care or control by the parent in question is the cause of the deprivation; (3) the cause of the deprivation is likely to continue or will not likely be remedied; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. Provided parental misconduct or inability is found, the juvenile court must then decide “whether termination of parental rights [would be] in the best interest of the child. . . .”

In this case, there was evidence to support the first two findings required by OCGA § 15-11-94 (b) (4) (A). The juvenile court determined that the children were deprived in its orders of June 8, 1998, and May 4, 1999. Appellant is bound by those determinations because she has not appealed the orders. Next, evidence of appellant’s history of drug use arguably supports the finding that the deprivation was caused by appellant’s lack of proper parental care and control. However, OCGA § 15-11-94 (b) (4) (A) (iii) and (iv) require that the court find that the deprivation is likely to continue or will not likely be remedied and is likely to cause serious harm to the child. As to these findings, we find the evidence lacking.

The evidence presented at the hearing shows that when appellant was given the reunification plan on July 12, 1999, she had already begun to take the steps necessary to reunite her family. Appellant completed an eight-week intensive drug treatment program on August 27, 1999. Subsequent drug screening tests introduced into evidence revealed that she was drug-free. Though not required to do so by the reunification plan, appellant testified that she has joined Narcotics Anonymous and attends meetings twice a week.

Appellant testified that after she decided to stop using drugs in March 1999, she saw her children almost every day until they were removed from her mother’s custody. Also, she has been employed since then and has paid weekly child support to the children’s grandmothers. By the date of the hearing, she had also completed a parenting skills program and found suitable housing for her family. Finally, appellant and her youngest child’s father married on September 9, 1999. The evidence shows that appellant’s new husband is stable and supports her efforts to remain drug-free and be a good parent.

Appellee urges this Court to disregard all positive efforts made by appellant after the petition to terminate her rights was filed and to look to appellant’s past as evidence of what she will do in the future. Though we agree that appellant’s past conduct was far from exemplary, her past unfitness, alone, is insufficient to terminate her right to custody. “A finding of parental unfitness must be based on present circumstances.”

Appellee cites several cases wherein this Court has been unpersuaded by evidence of a parent’s recent improvements. In those cases, however, there was also present clear and convincing evidence that the cause of the children’s deprivation would likely continue or would not likely be remedied. In In the Interest of R. N., a psychologist testified that the mother suffered from major depression, post-traumatic stress disorder, and a personality disorder when he examined her in 1993. Further, the psychologist testified that her pattern of stabilizing the household when the children were away but then becoming overwhelmed and incapable of meeting their needs when they were returned to her custody would likely repeat itself. The cause of the deprivation in In the Interest of L. S. D. was twofold. A 1997 psychological evaluation revealed that the mother had personality disorders, poor tolerance for stress and pressure, and difficulty with impulse control. Also, as a result of her felony convictions of simple assault and cruelty to children, she could not independently care for her children because her sentence included a condition that she have no unsupervised contact with them.

Decided January 5, 2001.

Christopher J. McFadden, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, John C. Shelton, for appellee.

The child in In the Interest of A. M. L. had been in the care of fifteen caretakers over seven years because of his mother’s disabling mental disorder. There was evidence that the child had psychological problems, and at the termination hearing, the mother confessed to having so many problems that she could not deal with another’s. Finally, in In the Interest of K. D. S. , there was testimony that there was no possibility that the mother would progress in the near future toward being able to care for the child. In each of these cases, there was evidence to support the trial court’s finding that the cause of the deprivation would likely continue or would not likely be remedied. This evidence distinguishes these cases from the instant case.

Having reviewed the entire record, we conclude that the Department failed to prove by clear and convincing evidence that appellant is presently unfit and that the children’s deprivation will continue unless her parental rights are terminated. Accordingly, we reverse the order terminating appellant’s parental rights.

Judgment reversed.

Pope, P. J, and Miller, J., concur.

       (Punctuation omitted.) Blackburn v. Blackburn, 249 Ga. 689, 694 (2) (292 SE2d 821) (1982).

       R. L. was in foster care for almost a year in 1997. Both children were in foster care for a few months in 1998 while their grandmother qualified as a foster parent. They were removed from their grandmother’s custody on July 12, 1999, and were placed in foster care.

       Appellant testified that she has relapsed twice since 1992. During the second relapse, she was pregnant with R. M.

       R. L. and L. J. L. were in appellant’s mother’s custody for two or three months in early 1998 and were returned to her in December 1998. During the interim period, appellant’s mother surrendered custody because she needed to qualify as a foster parent to obtain financial support for child care. On July 12,1999, the children were placed in foster care because she failed to submit to a drug screening test. In her affidavit, appellant’s mother explained that she could not take the test because she had misplaced her driver’s license, but the children were still removed from her custody.

       The hearing was rescheduled to allow appellant’s counsel time to prepare.

       Incidentally, Fields removed R. L. and L. J. L. from appellant’s mother’s custody on the day of the hearing.

       (Citation and punctuation omitted.) In the Interest of K. J., 226 Ga. App. 303, 306 (1) (486 SE2d 899) (1997).

       (Emphasis supplied.) OCGA § 15-11-94 (a).

       OCGA § 15-11-94 (b) (4) (A).

       OCGA § 15-11-94 (a).

        In the Interest of J. M. D., 221 Ga. App. 556, 558 (472 SE2d 123) (1996).

       OCGA § 15-11-94 (b) (4) (B) provides that in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, several factors. One of the factors is excessive use of or history of chronic unrehabilitated abuse of narcotic drugs.

       See In re N. F. R., 179 Ga. App. 346, 348 (2) (346 SE2d 121) (1986).

        In the Interest of J. J., 225 Ga. App. 682; 683 (2) (484 SE2d 681) (1997).

       (Punctuation omitted.) In the Interest of D. C. N. K., 232 Ga. App. 85, 90 (501 SE2d 268) (1998).

       224 Ga. App. 202 (480 SE2d 243) (1997).

       Id. at 204 (1) (c).

       243 Ga. App. 626 (534 SE2d 109) (2000).

       Id. at 627.

       242 Ga. App. 121 (527 SE2d 614) (2000).

       Id. at 123 (1) (c).

       237 Ga. App. 865, 867 (1) (c) (517 SE2d 102) (1999).


author: Miller, Judge.

text:
    A00A2580.
    ROSE v. CAIN.
    (544 SE2d 453)
   Miller, Judge.

Plaintiff Ralph D. Cain filed this action to set aside a security deed to residential real estate purportedly signed by him in favor of defendant Terry R. Rose as grantee to secure a supposed $85,000 debt. Rose counterclaimed, alleging an oral agreement that Cain would convey the property described in the security deed at issue. At the close of all the evidence, the trial court directed a verdict against this counterclaim and denied Rose’s motion for a directed verdict on Cain’s claim of fraud in the factum. In a special interrogatory, the jury found the security deed was not valid and enforceable, and judgment was entered accordingly. On appeal, Rose contends the trial court erred in denying his motion for directed verdict as to fraud and in granting Cain’s motion for directed verdict as to the alleged oral contract to convey real property. He further enumerates as error the court’s jury instructions on accident, mistake, and on the principles of a confidential relationship. We affirm.

1. In Georgia, a directed verdict or judgment notwithstanding the verdict is authorized

only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. The denial of a motion for j.n.o.v. will be affirmed, if, after viewing the evidence in the light most favorable to the party securing the verdict, there is any evidence supporting the jury’s verdict. And the direction of a verdict must be reversed if there is any evidence supporting a contrary verdict.

Viewed in the light most favorable to Cain, who obtained the jury’s verdict that the security deed is unenforceable, the evidence showed the following:

In 1979, defendant Rose purchased three tracts of land, including the property at issue (Tract Two) upon which he built a residence. He subsequently filed for bankruptcy, and under a reaffirmation agreement with his lender, Rose agreed to catch up on delinquent mortgage payments by making double payments, amounting to approximately $1,400 per month. Meanwhile, Rose’s loan was sold to People’s Bank, and the assignee demanded payments of up to $2,100 to $2,500 per month. This put unbearable pressure on Rose, not knowing month to month whether he would be able to meet his obligation. In 1995, Cain and Rose became partners in a business venture to market pet bedding permeated with flea powder. Cain invested $28,000 and created a joint checking account from which Rose could sign checks. In order to avoid having his partner lose his home (where their product would be manufactured), Cain agreed to pay off Rose’s loan on Tract Two by purchasing that lot from Rose for $90,000.

Rose conveyed the property to Cain by warranty deed. The sale was financed with a $72,000 loan from Great Western Mortgage Company, to whom Cain conveyed the property by security deed. Rose gave Cain a signed purchase agreement reciting that Rose had received $5,000 earnest money from Cain, which Cain testified he gave Rose in cash. At closing, Cain gave Rose another $15,300. Rose admitted he lied when he affirmed in writing, under penalty of perjury, that there was no under-the-table agreement about the loan proceeds. He also admitted that no money was ever transferred to create the $85,000 debt supposedly secured by the deed at issue. A real estate appraiser gave expert opinion testimony that the house and land were valued at approximately $90,000 and most certainly would not appraise for the $150,000 to $200,000 that Rose thought the property was worth.

Cain denied signing the security deed at issue but acknowledged that the signature resembles his. Rose asked Cain to sign some documents purporting to incorporate the business venture, and Cain’s signature could have been fraudulently obtained then. When Cain discovered perceived misuse by Rose of the $28,000 invested, he told Rose to vacate the house. Only then did Rose attempt to foreclose on the $85,000 security deed.

Rose alluded to his deception to others. Marcus Carnes operates a bar and grill. One day in October 1995, after having a few drinks, Rose told Carnes, “ T ain’t losing my house to nobody [because] I just figured out a way to beat them out of $30,000 or more.’ ” In the spring of 1996, on another occasion when Rose was apparently intoxicated, he said in the presence of Hilda Oiler that “he wasn’t going to lose his house because he had some paperwork that Ralph [Cain] didn’t know anything about [and] that he [Rose] was coming into $85,000.00 pretty soon.”

2. Cain’s evidence showed that the parties were partners or joint venturers in the development of Rose’s idea for a pet bed treated with flea insecticide, and that Rose tricked him into signing the $85,000 security deed by misrepresenting it as a document related to their joint venture.

As partners, the parties stood in a confidential relationship to each other with respect to their business. Among persons sustaining a relationship of trust and confidence, silence when one should speak or a failure to disclose what ought to be disclosed constitutes fraud in law just as do affirmative false representations. Proof of this confidential relationship authorized the trial court’s charge on confidential relationships taken from OCGA § 23-2-58. Such a relationship would authorize the jury to conclude that Cain was justified in failing to read and know the contents of the security deed Rose presented to him for his signature under the ruse that the document pertained to their joint venture.

Furthermore, proof that Rose attempted to foreclose on the security deed obtained by deceit — which deed is admittedly unsupported by valuable consideration after he had already conveyed the property to Cain by warranty deed — is sufficient proof of actionable fraud in the factum to support the jury’s verdict in this case. The trial court correctly denied Rose’s motion for directed verdict on Cain’s claim of fraud. The first and fifth enumerations are without merit.

3. The second enumeration contends the trial court erred in directing the verdict against Rose’s counterclaim to enforce an oral agreement to reconvey the property. The trial court concluded the alleged agreement was not enforceable under the Statute of Frauds. On appeal, Rose argues that part performance removes his agreement from the Statute of Frauds. We disagree.

The provisions of the Statute of Frauds do not extend to cases “[w]here there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.”

Full payment alone accepted by the vendor, or partial payment accompanied [by] possession, or possession alone with valuable improvements, if clearly proved in each case to have been done with reference to the parol contract, shall be sufficient part performance to justify a decree [of specific performance].

But the part performance shown must be consistent with the presence of a contract and inconsistent with the lack of a contract. Here, the proof of part performance is Rose’s continued possession after the conveyance plus his making monthly payments to Cain of approximately $450. This is certainly consistent with the existence of an oral agreement to convey the property back to Rose after the new loan was paid off, but it is not at all inconsistent with the lack of such an agreement, after Rose conveyed the property by warranty deed. Monthly payments approximating rent do not, in our view, establish part performance of the alleged oral agreement to (re)convey the property to Rose.

Furthermore, Rose is disabled from seeking equitable relief under OCGA § 23-1-10 because he has unclean hands directly related to the subject matter of the transaction concerning which relief is sought.

The unclean-hands maxim which bars a complainant in equity from obtaining relief has reference to an iniquity which infects the cause of action so that to entertain it would be violative of conscience. It must relate directly to the transaction concerning which complaint is made.

“These rules stem from the just and salutary principle that one will not be permitted to profit by his own wrong, and apply where a party is seeking the aid of equity in the enforcement of executory contracts. . . .”

Since Rose admitted the security deed he attempted to foreclose upon was unsupported by any valuable consideration while the sale to Cain has undisputed economic substance, he is barred from seeking equitable relief to obtain title to the real property allegedly securing the nonexistent debt. It scarcely amounts to a fraud against Rose to refuse to enforce the oral agreement. The trial court correctly concluded that, viewing the evidence in the light most favorable to Rose, the alleged oral agreement to transfer land was unenforceable under the Statute of Frauds.

4. The third and fourth enumerations complain of the trial court’s jury instructions on accident and mistake, respectively.

“If the form of the conveyance is, by accident or mistake, contrary to the intention of the parties in their contract, equity shall interfere to make it conform thereto.” “Equity has jurisdiction to reform written instruments where there has been a mistake on the part of one of the parties, accompanied by fraud on the part of the other party, just as in cases where there is a mutual mistake.”

Decided January 5, 2001.

William S. Hardman, for appellant.

Turner & Willis, Brett D. Turner, for appellee.

Cain testified that, as he did not knowingly sign the security deed at issue, its execution and Rose’s attempted foreclosure thereunder were fraudulent. This was a sufficient evidentiary foundation to authorize the trial court’s instructions on equitable relief from written instruments based on accident and mistake.

Judgment affirmed.

Pope, P. J., and Mikell, J, concur.

       This sort of fraud procures a party’s signature to an instrument without his knowledge of its true nature or contents. Bellamy v. Resolution Trust Corp., 266 Ga. 630, 631 (1) (469 SE2d 182) (1996).

       (Punctuation and footnotes omitted.) Camp v. Eichelkraut, 246 Ga. App. 275, 278 (1) (539 SE2d 588) (2000).

        Crosby v. Rogers, 197 Ga. 616, 622 (2) (30 SE2d 248) (1944).

        Tigner v. Shearson-Lehman Hutton, Inc., 201 Ga. App. 713, 715 (411 SE2d 800) (1991).

       See Smith v. Lott, 246 Ga. 366, 367 (271 SE2d 463) (1980) (where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue).

        Crosby v. Rogers, supra, 197 Ga. at 622-623 (2).

       OCGA § 13-5-30 (4) requires any contract for the sale of lands, or any interest in, or concerning lands, to be in writing and signed by the party to be charged.

       OCGA § 13-5-31 (3).

       OCGA § 23-2-131 (b).

        Hudson v. Venture Indus., 243 Ga. 116, 118 (252 SE2d 606) (1979). Accord R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 583 (1) (b) (451 SE2d 812) (1994) (physical precedent only).

       “He who would have equity must do equity and must give effect to all equitable rights of the other party respecting the subject matter of the action.”

       (Citations omitted.) Atlanta Assn. of Fire Ins. Agents v. McDonald, 181 Ga. 105, hn. 2 (181 SE 822) (1935).

        Fuller v. Fuller, 211 Ga. 201, 202 (84 SE2d 665) (1954).

       OCGA § 23-2-20.

       OCGA §§ 23-2-21; 23-2-24.

       OCGA § 23-2-25.

       (Citations omitted.) Lynch Enterprise Finance Corp. v. Realty Constr. Co., 176 Ga. 700 (2) (168 SE 782) (1933). Accord OCGA § 23-2-31: Equity “may rescind and cancel upon the ground of mistake of fact material to the contract of one party only.”


author: Eldridge, Judge.

text:
    A00A2475.
    HULCHER SERVICES, INC. v. R. J. CORMAN RAILROAD COMPANY, LLC et al.
    (543 SE2d 461)
   Eldridge, Judge.

Hulcher Services, Inc. appeals from an adverse declaratory judgment voiding a noncompetition restrictive covenant with Daniel J. Keating, a former employee, and his new employer, R. J. Gorman Railroad Company, LLC. We affirm the determination of the trial court that the covenants as to territory, work capacity, and solicitation of customers were flagrantly overbroad and unreasonable under Georgia law for the following reasons.

Keating began work with Hulcher in 1984 in Illinois. However, until December 2, 1998, Hulcher had not required for Keating an employment agreement with a noncompete provision.

Hulcher is in the business of performing emergency disaster remediation services for railroads and industries with rail siding and rail yards in the lower 48 states, Canada, and Mexico. Although Keating began work for Hulcher in Illinois, from 1994 until 1997 he worked in Memphis, Tennessee, doing work only in parts of Tennessee and of Kentucky; then, until he left in 1999, he worked for Hulcher as Senior Division Manager in Atlanta, Georgia. He had responsibility for the entire states of Georgia and Florida but did not work in areas of these states without main rail lines. He never worked in Ohio.

The noncompete provision prohibited Keating from working for three years in all of Florida, Georgia, Illinois, Ohio, or Tennessee in any capacity.

On June 1, 1999, Keating left Hulcher and went to work for Corman, a direct competitor. Initially, Keating worked in Kentucky and then Minnesota until March 2000 when he was transferred to Atlanta.

On March 7, 2000, Corman instituted this declaratory judgment action against Hulcher to have the covenant voided. On April 10, 2000, Hulcher moved to dismiss the action on the grounds that Corman lacked standing. On April 25, 2000, Keating was joined in the action. However, on April 7, 2000, Hulcher filed suit against Keating in the 367 Texas District Court, obtaining an ex parte restraining order without service on any party to enforce the covenant. This Texas suit was subsequently removed to the United States District Court for the Eastern District of Texas. On May 16, 2000, the United States District Court is reported to have issued an interlocutory injunction against Keating. However, on May 17, 2000, the trial court below conducted a final hearing and entered a final judgment, finding the covenant unenforceable as a matter of Georgia public policy, because: the covenant was overly broad and unreasonable in the scope of activity restrictions; the territorial restriction was overbroad and unreasonable; and the nonsolicitation provision was overbroad and unreasonable. The interlocutory injunction from federal court was never put in evidence before the trial court prior to the final judgment, although the trial judge was given a copy. Held:

1. Hulcher contends that the judgment should be vacated because of the interlocutory federal injunction. We do not agree.

The federal district court in this diversity jurisdiction case and the Superior Court of Fulton County have concurrent subject matter jurisdiction as separate and independent jurisdictions so that the same cause of action can be maintained between the same parties over the same issues at the same time. See Inter-Southern Life Ins. Co. v. McQuarie, 148 Ga. 233, 235 (1) (96 SE 424) (1918); Huff v. Valentine, 217 Ga. App. 310, 311 (1) (457 SE2d 249) (1995). Only a final adjudication on the merits precludes the other, separate jurisdiction from making a determination on the merits. When a final determination on the merits has resulted, then under the doctrines of res judicata and collateral estoppel, the other court becomes bound by the finality of judgment. Barkley-Cupit Enterprises v. Equitable Life Assurance &c., 157 Ga. App. 138, 140 (1) (276 SE2d 650) (1981).

Further, the trial court in this case has entered final judgment on the issues between the parties, while the Texas federal district court has only issued an interlocutory injunction, which is “merely pendente lite relief” and which is a long procedural journey from a final judgment and affirmance by the United States Court of Appeals for the Fifth Circuit in that jurisdiction. See GTE Sylvania, Inc. v. Consumers Union &c., 445 U. S. 375, 379-380 (100 SC 1194, 63 LE2d 467) (1980). “Hearings on these nonpermanent injunctions do not serve the same purpose as a hearing on the merits; they only preserve the status quo awaiting resolution of the merits.” Texas v. Wellington Resources Corp., 706 F2d 533, 537 (5th Cir. 1983); see also Meineke Discount Muffler v. Jaynes, 999 F2d 120, 122, n. 3 (5th Cir. 1993).

A case of actual controversy still exists, because the federal district court has rendered no final judgment as an adjudication on the merits that delineates the rights of the parties, but only its interlocutory order that places the plaintiffs under a real and present threat of contempt. Such Texas action clearly demonstrates that Hulcher treats these issues as a real controversy and would not hesitate to seek the sanction of contempt. See OCGA § 9-4-2 (a); Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 314 (3) (66 SE2d 726) (1951). In the race to the courthouse, victory does not go to the swiftest litigant with the first injunction, but to the litigant with the first final judgment, making a final disposition on the merits. See Barkley-Cupit Enterprises v. Equitable Life Assurance &c., supra at 140. This affirmance of the trial court’s declaratory judgment will “relieve the petitioner from uncertainty and insecurity.” Calvary Independent Baptist Church v. City of Rome, supra at 314. The trial court’s judgment and this Court’s opinion are not advisory or hypothetical in nature, but void a covenant that flagrantly violates the public policy of this State and that seeks to prohibit Keating from working for Corman in this State in competition with Hulcher. See Cheeks v. Miller, 262 Ga. 687, 689 (425 SE2d 278) (1993); Cook v. Sikes, 210 Ga. 722, 727-728 (82 SE2d 641) (1954).

2. Plaintiff contends that the trial court erred in applying Georgia law rather than Texas law as specified in the contract. We do not agree.

The contract was executed in Texas. However, it was not to be performed in Texas, but in Georgia: it did not involve a covenant not to compete in Texas, but in other states, including Georgia; Keating never worked in Texas, but worked in Georgia; he was not personally subject to the jurisdiction of a Texas court, but was a resident in Georgia at the time the litigation commenced and the last time he worked for Hulcher; and the contract was to be enforced in Georgia. Texas has no nexus with Keating and has no significant interest or contacts with Keating. The only relationship with Texas is that Hulcher is a Delaware corporation that works all over North America, including Georgia, and has its main office in Texas. See Gen. Elec. Credit Corp. v. Home Indem. Co., 168 Ga. App. 344, 350-351 (2) (309 SE2d 152) (1983).

Generally, Georgia will follow a forum selection clause in an employment contract. See Iero v. Mohawk Finishing Products, 243 Ga. App. 670 (534 SE2d 136) (2000). However, this contract involves not a forum selection clause, but a choice of law selection clause and requires a different legal analysis.

Georgia conflicts of law will not follow a contractual selection of law of a foreign state where such chosen law would contravene the public policy of Georgia against certain unlawful covenants not to compete. See Nasco, Inc. v. Gimbert, 239 Ga. 675, 676 (2) (238 SE2d 368) (1977); see also Wolff v. Protege Systems, 234 Ga. App. 251, 256 (3) (506 SE2d 429) (1998); Scherer v. Scherer, 249 Ga. 635, 638 (1) (292 SE2d 662) (1982). On the very issue of Texas covenants against competition and contract selection of choice of Texas law, this Court has held that Texas law will not be followed because it flagrantly contravenes the public policy of Georgia in this regard. See Enron Capital &c. Corp. v. Pokalsky, 227 Ga. App. 727, 730 (3) (490 SE2d 136) (1997).

This case is distinguishable from Iero v. Mohawk Finishing Products, supra at 671, because first, that case was a forum selection clause; and, second, in that case the plaintiff failed to carry the burden of showing how the application of New York law would be contrary to the public policy of Georgia and that “enforcement of his employment contract would be unreasonable under the circumstances.” Id. at 671; see also Carnival Cruise Lines v. Shute, 499 U. S. 585, 592 (111 SC 1522, 113 LE2d 622) (1991). In this case, however, Keating showed that Hulcher’s restrictive covenant as to competition was a flagrant violation of Georgia public policy. Further, this Court had previously declined to follow Texas law on such issue, because Texas law flagrantly violated Georgia public policy. See Enron Capital &c. Corp. v. Pokalsky, supra at 730; see also Bremen v. Zapata OffShore Co., 407 U. S. 1, 15 (92 SC 1907, 32 LE2d 513) (1972); Iero v. Mohawk Finishing Products, supra at 671.

3. Plaintiff contends that the trial court erred in evaluating the restrictive covenant solely on its face and without considering the nature of the industry and Keating’s high level managerial position when it determined whether the covenant was reasonably limited to protect Hulcher’s legitimate business interests. We do not agree.

The affidavit of Keating and the affidavit of Frank Given, vice president of Hulcher, clearly state the nature of Hulcher’s business, Keating’s employment history with it, Keating’s personal relationship with clients, and the level of knowledge that he had acquired.

The trial court’s judgment of May 22, 2000, neither explicitly nor implicitly indicates that the trial court did not consider all of the evidence in the record. Therefore, this Court must presume “that the [trial court] performed [its] duty by considering the evidence and making a finding from it, where the issue is one for such determination.” Sessions v. Oliver, 204 Ga. 425, 431 (1) (50 SE2d 54) (1948); see also OCGA § 24-4-24 (b) (2); Riggins v. State, 159 Ga. App. 791 (285 SE2d 579) (1981). Moreover, its statement on April 21, 2000, that “[t]his is a legal issue. I don’t need testimony under any case, whether it is enforceable or not enforceable,” does not establish that the trial court failed and refused to consider the evidence in the record at the time of final hearing prior to ruling on May 17, 2000. Further, whether or not a covenant not to compete is reasonable is a question of law for determination by the trial court. W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992); Beckman v. Cox Broadcasting Corp., 250 Ga. 127, 130 (296 SE2d 566) (1982); McAlpin v. Coweta Fayette Surgical Assoc., 217 Ga. App. 669, 671 (458 SE2d 499) (1995).

4. Hulcher contends that the trial court erred in finding that the covenant was overbroad and unreasonable as to its territorial restrictions. We do not agree.

The territorial limitations were Florida, Georgia, Illinois, Ohio, and Tennessee. Given testified that such restricted territory covered where Keating had worked in the past and developed relationships; where Keating had close relationships with railroad personnel who could give him business; and where the principal eastern railroads, CSX and Norfolk Southern, have their main concentration of track-age. Given never testified that either CSX or Norfolk Southern was Hulcher’s exclusive client or that Gorman did not also do work for these railroads in these states in the past. Thus, neither the clients nor the territory in the covenant was exclusively Hulcher’s. By Hulcher’s strategically selecting these states, no east-west or north-south mainline railroad east of the Mississippi could operate without passing through this territory, and there was no need to specifically include each contiguous state, except to exclude rail yards and sidings.

While a contract in general restraint of trade or which tends to lessen competition is against public policy and is void (1983 Ga. Const., Art. Ill, Sec. VI, Par. V (c); OCGA § 13-8-2), a restrictive covenant contained in an employment contract is considered to be in partial restraint of trade and will be upheld if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public.

(Citation and punctuation omitted.) W. R. Grace & Co. v. Mouyal, supra at 465. “A covenant not to compete, being in partial restraint of trade, is not favored in the law, and will be upheld only when strictly limited in time, territorial effect, the capacity in which the employee is prohibited from competing and when it is otherwise reasonable.” (Citations and punctuation omitted.) Beckman v. Cox Broadcasting Corp., supra at 129. To determine the reasonableness of a restrictive covenant, courts examine the covenant’s terms regarding time, territory, and scope of activity. American Gen. Life &c. Ins. Co. v. Fisher, 208 Ga. App. 282, 283 (1) (430 SE2d 166) (1993).

In this case, the area restricted as to competition exceeds the area within which Keating worked for Hulcher. While this Court will accept as prima facie valid a territory where the employee worked and the employer does business, a territory that is only where the employer does business but the employee did not work is overly broad on its face, absent strong justification for such protection, other than the desire not to compete with the former employee. Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 140 (1) (287 SE2d 546) (1982); Ceramic &c. Coatings Corp. v. Hizer, 242 Ga. App. 391 (529 SE2d 160) (2000). The record fails to show facts that justify such extensive territorial restriction. Further, entire states are included, although Keating worked for Hulcher only in a limited area of such states where the railroads were located. Rollins Protective Svcs. Co. v. Palermo, supra at 140; Ceramic &c. Coatings Corp. v. Hizer, supra at 393. There must be a balancing between the employee’s right to earn a living and ability to determine with certainty the geographic area boundaries in which post-employment activities are restricted. These considerations must be balanced against the employer’s interest in customer relationships that its former employee established for the employer and its right to protect itself from the risk that the former employee might use such relationships to unfairly appropriate the employer’s existing customers.

However, a restriction against doing business with any actual or potential customers of the employer located in a specific geographic area in which the employee had not actually done business is over-broad and unreasonable. W. R. Grace & Co. v. Mouyal, supra at 465; see also Chaichimansour v. Pets Are People Too, 226 Ga. App. 69, 70-71 (1) (485 SE2d 248) (1997). Therefore, the covenant is unreasonably broad because it covers a state and areas of states where the plaintiff never worked. See Brunswick Floors v. Guest, 234 Ga. App. 298, 300-301 (506 SE2d 670) (1998).

As to the restrictions on solicitation of Hulcher’s clients or employment of its employees, there is no restriction as to territory so that the restriction applies to all of North America, which is unreasonable because Keating had no contact with customers or employees outside his work area sufficient to establish a relationship with them. See W. R. Grace & Co. v. Mouyal, supra at 465; Sanford v. RDA Consultants, 244 Ga. App. 308 (535 SE2d 321) (2000); Club Properties v. Atlanta Offices-Perimeter, 180 Ga. App. 352, 355 (3) (348 SE2d 919) (1986).

5. Hulcher contends that the trial court erred in finding that the restrictions were overly broad and unreasonable as to the scope of activity. We do not agree.

The Georgia courts have found that a former employer does not need a restrictive covenant that prohibits work for a competitor in any capacity in order to protect its legitimate interests, because a reasonable restriction sets forth with specific particularity those activities related to the employer’s business in which the employee was trained by the employer or worked for the employer, thereby protecting the employer’s interests from competition in that regard only Howard Schultz &c., Inc. v. Broniec, 239 Ga. 181, 184-185 (2) (236 SE2d 265) (1977); Harville v. Gunter, 230 Ga. App. 198, 200 (2) (495 SE2d 862) (1998) (speech pathology and officer, stockholder, director, or employee with any speech pathology provider too broad); cf. Saxton v. Coastal Dialysis &c. Clinic, 220 Ga. App. 805, 807-809 (470 SE2d 252) (1996) (as nephrologist or as owner, manager, or employee operating in medical or managerial capacity was specifically limiting); and see Augusta Eye Center v. Duplessie, 234 Ga. App. 226, 227 (506 SE2d 242) (1998) (covenant restricted to certain delineated capacities as an ophthalmologist only). Where a noncompete covenant, for someone other than a licensed professional, is so broad that such former employee is prohibited from working for a competitor of the former employer in any capacity, such covenant is unreasonable. See Firearms Training Systems v. Sharp, 213 Ga. App. 566, 567 (445 SE2d 538) (1994); Fleury v. AFAB, Inc., 205 Ga. App. 642, 643 (423 SE2d 49) (1992). Such restriction imposes “a greater limitation on the employee than is necessary because [the former employee] is prohibited from being an officer or director or owning stock in other companies, activities which are very different from [his] work.” (Citation and punctuation omitted.) Brunswick Floors v. Guest, supra at 301.

In this case, Keating is prohibited from working for a competitor in any capacity, either directly or indirectly, and from owning, managing, operating, controlling, being employed or connected with in any capacity any business similar to railroad derailment services and emergency response hazardous material remediation businesses conducted by Hulcher. Sanford v. RDA Consultants, supra; Ceramic &c. Coatings Corp. v. Hizer, supra. Thus, he is prohibited from employment in any capacity for a competitor or management and ownership in a competitor. Under Georgia law, this violates Georgia public policy because it is anti-competitive, and the restriction is broader than necessary to protect Hulcher. See Puritan-Churchill Chem. Co. v. Eubank, 245 Ga. 334, 335 (265 SE2d 16) (1980); Browning v. Orr, 242 Ga. 380, 381 (249 SE2d 65) (1978).

Decided December 8, 2000

Reconsideration denied January 8, 2001

Troutman Sanders, Alan E. Lubel, Mary F. Mackin, Andrew M. Greene, for appellant.

Seyfarth, Shaw, Fairweather & Geraldson, Frederick T. Smith, Donna L. Keeton, for appellees.

6. Hulcher contends that the trial court erred in ruling that the nonsolicitation provision was overly broad and unreasonable. We do not agree.

The nonsolicitation of Hulcher’s customers is not limited to those with whom Keating had a relationship and Hulcher had as actual customers as opposed to potential customers, but also extends to any customer in North America. Such provision in territory and scope is overly broad and unreasonable, rendering it unenforceable. Such nonsolicitation covenant must be limited to those customers within the specific territory where plaintiff actually worked for a reasonable business need for protection to arise; however, in this case, the need is absent where the actual customers are scattered across North America and Keating had no relationship with most of them. W. R. Grace & Co. v. Mouyal, supra at 466-467.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A00A1794.
    SMITH et al. v. KLS CONSTRUCTION COMPANY, INC.
    (544 SE2d 197)
   Phipps, Judge.

W. Hughes Smith III and Barbara Smith filed suit against the builder-seller of their home for damages allegedly caused by the use of synthetic stucco. The trial court ruled that their claims were barred by the statute of limitation, and they appeal. Because we find that the trial court applied the wrong statute of limitation to the Smiths’ breach of contract claim, we reverse that portion of the trial court’s summary judgment ruling.

In 1993, the Smiths contracted with KLS Construction Company, Inc. to construct their Savannah home. The house was substantially completed and a certificate of occupancy was issued in 1994. An inspection performed in 1999 revealed problems associated with the application of the exterior insulation and finishing system, or synthetic stucco, including termites and wood rot.

Decided January 8, 2001.

Eugene C. Brooks IV, for appellants.

Ellis, Painter, Ratterree & Bart, Tracy O’Connell, Rebecca C. Benton, for appellee.

On April 22, 1999, the Smiths filed suit against KLS and asserted claims for negligent construction, breach of warranty, breach of contract and bad faith. KLS moved for summary judgment on the basis that the Smiths’ claims were barred by the four-year statute of limitation set forth in OCGA § 9-3-30 for trespass or damage to realty and that no basis existed upon which to toll the running of the statute. The trial court granted the motion, finding that the four-year statute of limitation was applicable to all of the Smiths’ claims and that the record was devoid of evidence of fraud that would toll the limitation period. The Smiths appeal that decision, challenging only the dismissal of their breach of contract claim.

1. Recently we addressed the same issue in Mitchell v. Jones and determined that the six-year statute of limitation governing simple written contracts applies to a contract for the sale of new construction by a professional builder-seller. Applying that rule here, we hold that the Smiths’ breach of contract claim against KLS is subject to the six-year statute of limitation.

The limitation period on a construction contract commences ¡on the date the work was substantially complete. It is undisputed that the Smiths filed their complaint within six years of the date their home was substantially complete. Because the Smiths brought their action within the applicable six-year statute of limitation governing simple written contracts, summary judgment was not warranted on their breach of contract claim.

2. Because we find that the Smiths’ claim for breach of contract was brought within the applicable statute of limitation, we need not address whether fraud or fraudulent concealment tolled the running of the limitation period.

Judgment reversed.

Johnson, P. J., and Smith, P. J., concur.

Pursley, Howell, Lowery & Meeks, Paul A. Howell, Jr., John C. Amabile, Charles F. Peebles, Lane R. Frostbaum, amici curiae.

       247 Ga. App. 113, 114 (1) (541 SE2d 103) (2000).

       OCGA § 9-3-24.

        Fort Oglethorpe Assoc. v. Hails Constr. Co., 196 Ga. App. 663 (1) (396 SE2d 585) (1990).

        Mitchell, supra.


text:
    A00A1805.
    PATRICK v. THE STATE.
    (544 SE2d 194)
   Phipps, Judge.

Kyle Patrick was convicted of theft by receiving a stolen automobile (Count 1) and fleeing or attempting to elude a police officer (Count 2). He was sentenced to serve concurrent terms of six years for Count 1 and twelve months for Count 2. He appeals his conviction and sentence and the denial of his motion for new trial. Patrick claims that the trial court erred by refusing to allow him to present evidence to rebut the similar transaction evidence presented by the State. Because Patrick failed to make an adequate proffer of the evidence he sought to present, we affirm.

On April 16,1999, the State filed and served a notice of its intent to present similar transaction evidence. On May 3, 1999, before Patrick’s trial began, the trial judge conducted a hearing outside the presence of the jury to determine if the similar transaction evidence should be admitted. The judge permitted the State to present evidence of two similar transactions where Patrick had pled guilty to theft by receiving a stolen automobile, but only for the purpose of showing Patrick’s identity, intent, course of conduct and state of mind.

Patrick claims that he was improperly precluded from introducing testimony from his mother that would have rebutted the similar transaction evidence. On direct examination at trial, his mother, Angela Patrick, testified as follows:

PATRICK’S COUNSEL: Your son had been in trouble before?
ANGELA PATRICK: Yes.
PATRICK’S COUNSEL: Okay. And he’d been in trouble concerning cars before?
ANGELA PATRICK: Yes.
PATRICK’S COUNSEL: Okay. And do you recall the last incident involving cars, the circumstances surrounding his QITCSt^
ANGELA PATRICK: Yes.
PATRICK’S COUNSEL: Okay. Briefly describe those to the court.
ANGELA PATRICK: I went to work early that morning. It was in November. I got home that evening as normal. It got later, and my son never showed up at home. I got worried. It got later and later, and he never showed up, never called. Because of past trouble, I decided to start checking around, calling his friends, calling — and I decided to call DeKalb Police. They told me that my son was at Grady Hospital.
STATE’S COUNSEL: Your Honor, I object to anything somebody else may have told her.
THE COURT: I sustain the objection.
PATRICK’S COUNSEL: Just testify as to what you recall, not what someone else told you.
ANGELA PATRICK: I started calling around —.
PATRICK’S COUNSEL: Okay.
ANGELA PATRICK: Trying to find my son. I found out later he was in Grady Hospital —.
PATRICK’S COUNSEL: Okay.
ANGELA PATRICK: In intensive care.
PATRICK’S COUNSEL: Okay. Now, prior to him being in this incident, had you received any phone calls from any of his friends or associates?
ANGELA PATRICK: Not prior.
PATRICK’S COUNSEL: Okay. But after he was in the incident?
STATE’S COUNSEL: Your honor, I object to anything any friends may have told her after this happened. It’s hearsay and it’s not relevant.
THE COURT: I sustain the objection.
PATRICK’S COUNSEL: Just testify as to what happened, Ms. Patrick, not as to what someone told you. Did you receive a phone call?
ANGELA PATRICK: Yes, I did.
PATRICK’S COUNSEL: Okay. And what was the nature of the phone call?
STATE’S COUNSEL: Your honor, I object. She can’t testify about a phone call. It doesn’t have anything to do about the circumstances that deal with this case. It doesn’t — the evidence has already shown he’s entered a plea of guilty to that charge. And I would object to it.
THE COURT: I sustain.
PATRICK’S COUNSEL: Your honor —.
THE COURT: I sustained the objection. You may ask her if she received a phone call and what, if anything, she did in response to that phone call. You may ask that question, but she can’t go into the phone call itself.
STATE’S COUNSEL: Judge, if I may, the purpose of this cannot be to go back and change the fact that he entered a plea of guilty —.

Decided January 8, 2001.

Peter M. Zeliff, for appellant.

PATRICK’S COUNSEL: Your honor, we’re not —.
STATE’S COUNSEL: Back in 1997.
THE COURT: I understand.
STATE’S COUNSEL: It has no relevance to what we’re dealing with here.
PATRICK’S COUNSEL: Well, your honor, the fact of the matter is they’re similar transactions that have been entered, and we’d like to be heard on the reason why this young man did enter that, not anything further than that.
THE COURT: I will not allow questions as to the reason.
The record will speak for itself.

At that point, Patrick’s counsel asked Ms. Patrick a few questions unrelated to the above exchange and concluded the examination.

To afford a basis upon which to assert an error regarding testimony sought to be introduced on direct examination, “it must appear that a pertinent question was asked, that the court ruled out an answer, that a statement was made to the court at the time showing what the answer would be, and that such testimony was material and would have benefited the complaining party.” A proffer is inadequate unless it informs the trial court, at the time the questions were propounded, what answers were expected. If the record does not show what testimony the witness was expected to give, the judgment will not be reversed.

Here, the extent of Patrick’s proffer was a statement from his counsel that he wanted to be heard about why Patrick entered guilty pleas in the prior cases. He did not inform the court how Angela Patrick would testify or seek to demonstrate that her testimony would be admissible. Because the proffer was inadequate, Patrick’s claim presents nothing for review.

Judgment affirmed.

Johnson, P. J., and Smith, P. J., concur.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

       (Citations omitted.) Stancil v. State, 155 Ga. App. 731, 733 (3) (272 SE2d 511) (1980).

       Id.; see also Dent v. State, 220 Ga. App. 147, 149 (3) (469 SE2d 311) (1996) (proffer must be definite so that both courts can know whether the evidence really exists).

        Thrasher v. State, 197 Ga. App. 593, 595 (2) (398 SE2d 850) (1990).

       See id.


author: JOHNSON, Presiding Judge.

text:
    A00A2167.
    WATSON v. THE STATE.
    (544 SE2d 469)
   JOHNSON, Presiding Judge.

Denandias Watson was found guilty of possession of cocaine, carrying a concealed weapon, obstruction of an officer, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a crime. He appeals from the convictions, arguing that the trial court erred in denying his motion to suppress the gun and cocaine; We affirm the convictions.

Viewed in a light most favorable to the trial court’s determination, the evidence shows the following. At approximately 10:00 p.m., police officers were riding in a marked patrol car when they noticed Watson and his brother standing next to Watson’s brother’s car. The car was parked in front of Watson’s brother’s house, against the flow of traffic. The police officers drove toward the vehicle. Watson, who was standing next to the driver’s door, looked up at the patrol car, closed the car door, then walked to the rear of the car, where his brother was standing. Watson’s hands were inside the waistband of his pants. As the police car pulled up to the rear of Watson’s brother’s car, Watson started running down the driveway. The officers stopped their car next to the driveway and in front of Watson’s brother’s car. Two of the officers got out of the police car and began pursuing him on foot. As soon as one of the officers got to the driveway, Watson tossed a clear plastic bag containing a tan-colored material onto the ground. The officers followed Watson into the backyard. Watson reached back into his waistband. Thinking that Watson might be reaching for a gun, the officer drew his own gun. Watson then threw a black object onto the grass. The officers captured Watson as he rounded the corner of the house. They found a black handgun and a plastic bag containing crack cocaine on the ground.

Watson moved to suppress the gun and cocaine, claiming the officers improperly seized him by blocking his brother’s car with their patrol car. The trial court denied the motion, holding that at the time Watson abandoned the items, he had not been seized. We agree with the trial court.

When contraband is discarded during flight or before a suspect is seized, it is admissible as evidence, even if there is an issue as to whether the officers possessed reasonable suspicion of criminal activity. The constitutional protection of the Fourth Amendment does not apply to property which has been abandoned. In this case, Watson was in a state of flight when he discarded the contraband he now seeks to suppress. Being chased is not tantamount to being seized, since seizure requires the application of physical force by the officer or submission by the defendant to the officer’s show of authority. Thus, Watson’s abandonment of the contraband before he was seized requires a finding that those items were not the fruits of an illegal arrest.

Contrary to Watson’s claim, the officers did not seize him by parking their patrol car in a manner that may have prevented his brother’s car from being moved. As stated above, a person is seized where either the officer applies physical force or the person submits to the officer’s show of authority. Even if the officers restricted the movement of his brother’s car by parking as they did, they did not apply any physical force to Watson, because he was not in the car at the time. And Watson did not submit to any show of authority by the officers. Accordingly, the manner in which the officers parked their car did not amount to a seizure of Watson.

We note that the Fourth Amendment was not implicated by the officers’ approach of Watson as he stood outside the parked car. Police officers may lawfully approach a person who is on foot to make inquiries, and they may lawfully approach a stopped vehicle to inquire about possible criminal activity without the Fourth Amendment being implicated. The officers did not need reasonable suspicion to approach Watson in this situation.

The trial court did not err in denying Watson’s motion to suppress.

Judgment affirmed.

Smith, P. J, and Phipps, J., concur.

Decided January 8, 2001.

Jennifer Snyder-Surges, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Gregory K. Schwarz, Assistant District Attorneys, for appellee.

       See Walker v. State, 228 Ga. App. 509, 510 (1) (493 SE2d 193) (1997); Smith v. State, 217 Ga. App. 680 (2) (458 SE2d 704) (1995).

       See Walker, supra.

        Smith, supra; Hunt v. State, 205 Ga. App. 490, 491 (423 SE2d 24) (1992).

       See Hunt, supra; Redd v. State, 229 Ga. App. 364, 366 (494 SE2d 31) (1997); Anderson v. State, 209 Ga. App. 676, 677 (434 SE2d 122) (1993); Walker, supra.

       See Quinn v. State, 221 Ga. App. 399, 402 (3) (471 SE2d 337) (1996) (physical precedent only), aff’d, 268 Ga. 70 (485 SE2d 483) (1997).

        Davis v. State, 237 Ga. App. 890, 891 (517 SE2d 115) (1999).

       Compare Fowler v. State, 195 Ga. App. 744, 745 (395 SE2d 254) (1990) (detention of defendant without reasonable suspicion illegal where officer caused defendant to stop his vehicle by blocking its path with police car).

        Davis, supra.

       Although we hold that there was no seizure here before the officers captured Watson and reasonable suspicion was not required, we note that parking against the flow of traffic is a traffic violation and would have supported a brief stop of the vehicle. See OCGA § 40-6-200 (b); Mack v. State, 212 Ga. App. 187, 189 (1) (441 SE2d 503) (1994).


text:
    A00A1934.
    FRAZIER v. THE STATE.
    (544 SE2d 198)
   JOHNSON, Presiding Judge.

Terrance Frazier was indicted for murder, felony murder and aggravated assault in connection with the shooting death of his cousin, Ondra Keller. A jury found him guilty of involuntary manslaughter as a lesser included offense of felony murder and not guilty of murder and aggravated assault. On appeal, he argues that the trial court erred in not granting a mistrial when the prosecutor questioned him about and commented upon his failure to voluntarily go to police after the shooting. Although the prosecutor acted improperly, we hold that the trial court did not abuse its discretion in refusing to grant a mistrial.

Construed to support the verdict, the evidence shows that Frazier and his niece were visiting Frazier’s mother when an argument broke out between Keller’s boyfriend, who lived in the adjoining apartment, and Frazier’s niece. The boyfriend, Vincent Johnson, hit Frazier’s niece with a wooden board, and Frazier intervened. Johnson argued with Frazier and struck him with the board. Frazier’s mother broke up the fight, and the men returned to their homes.

A short time later, Frazier went back to check on his mother and Keller. Johnson came out of his apartment, and the argument resumed. Johnson told Frazier that he was “tired of this shit” and “was fixing to hurt” him, then went back into his apartment. Frazier believed Johnson was going to get a gun, although the evidence is not clear as to whether he actually did get a gun. As Johnson walked out of the apartment and onto his screened porch, Frazier fired five shots in his direction and left. Frazier did not realize it, but Keller was sitting on the porch at the time. Keller was killed in the gunfire.

At trial, Frazier testified that he acted in self-defense and that he was not trying to kill Johnson or harm Keller. When asked on direct examination how he reacted upon learning of his cousin’s death, Frazier replied that he was depressed and that he did not want to be bothered by anyone.

On cross-examination, the prosecutor asked Frazier if he went to the police as soon as he learned that Keller had been killed. Frazier replied that he did not. The prosecutor asked if he explained to the police what happened at that point. Frazier said “No.” Frazier was then asked if he had tried to stay away from the police. He remarked that he had not. After this last question, defense counsel objected. As defense counsel was stating the objection, Frazier interjected that he did not try to stay away from the police. Defense counsel asked that the jury be excused.

With the jury out of the courtroom, defense counsel moved for a mistrial, arguing that the state’s questions amounted to an improper comment on Frazier’s silence. The trial court denied the motion, then cautioned the prosecutor to “stay away from that area.” The prosecutor assured the court that she would. Defense counsel made no further comment or motion regarding the inquiry. No curative instruction was requested or given.

Later, while arguing in her closing statement that Frazier was not acting in self-defense, the prosecutor commented on how Frazier never contacted the police and did not tell the police what happened until two months after the shooting. Defense counsel did not object to the argument.

In Georgia, the state may not comment on a defendant’s silence prior to arrest or on his failure to come forward voluntarily, even when the defendant chooses to testify at trial. This is because a prosecutor’s comment on a defendant’s pre-arrest silence is far more prejudicial than probative.

We agree that the prosecutor acted improperly in commenting during closing argument on Frazier’s failure to come forward. However, Frazier’s failure to make any objection to the argument amounts to a waiver.

The state also acted improperly in questioning Frazier on cross-examination about his failure to come forward after the shooting. However, we find that the issue was waived and further note that, in any event, the error was harmless.

When the trial court responded to Frazier’s objection and motion for mistrial by directing the prosecutor to “stay away” from the prearrest silence issue, defense counsel neither renewed the motion nor asked for curative instructions. Where a defendant objects and moves for a mistrial during the examination of a witness, and the trial court denies the motion but takes some corrective action, if the defendant is dissatisfied with that action, he must renew the objection or motion; otherwise, the issue is waived. Frazier’s silence after the trial court’s purported corrective action amounts to a waiver.

Nonetheless, even if the issue was not waived, it presents no grounds for reversal. First, even without the inquiry and comment regarding Frazier’s pre-arrest silence, there was overwhelming evidence that he was guilty of involuntary manslaughter. Second, Frazier himself testified on direct examination about his reaction upon finding out that he killed his cousin, saying that he was depressed and did not want to see anybody. Thus, the jury had before it Frazier’s explanation for not talking to anyone about the shooting, which may have negated the state’s argument that his hesitance in going to police was evidence of malice. Finally, the state asked and Frazier answered two similar questions without any objection. Arguably, the objection after the third question could, therefore, be considered untimely.

The trial court has a broad discretion in passing on a motion for mistrial, and its ruling will not be disturbed by an appellate court unless there has been a manifest abuse of discretion and a mistrial is essential to the preservation of the right to a fair trial. Under the circumstances presented in this case, the trial court did not abuse its discretion in refusing to grant a mistrial.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

Decided January 9, 2001.

Luana K. Walsh, for appellant.

Paul L. Howard, Jr., District Attorney, George W. K. Snyder, Jr., Assistant District Attorney, for appellee.

        Landers v. State, 270 Ga. 189, 190 (2) (508 SE2d 637) (1998); see Mullinax v. State, 242 Ga. App. 561, 562 (1) (530 SE2d 255) (2000).

        Landers, supra.

       See id.

       See id.; see generally Ridley v. State, 235 Ga. App. 591, 596-597 (3) (510 SE2d 113) (1998).

       See Braswell v. State, 245 Ga. App. 602, 605-606 (6) (b) (538 SE2d 492) (2000) (issue of state’s improper comments during cross-examination not preserved where, after defendant objected and moved for mistrial, court instructed state not to make such comments, but defendant made no further objection nor renewed motion for mistrial); Ford v. State, 269 Ga. 139, 141 (3) (498 SE2d 58) (1998) (defendant waived issue of comment on pre-arrest silence by not renewing motion for mistrial after court gave curative instruction); Cooper v. State, 206 Ga. App. 292, 293 (3) (424 SE2d 896) (1992) (issue of comment on post-arrest silence waived where defendant did not renew objection or move for mistrial after court sustained objection and instructed jury to disregard question); Evans v. State, 190 Ga. App. 302 (2) (378 SE2d 903) (1989) (issue waived where motion for mistrial not renewed after court denied motion but took corrective action); Brown v. State, 180 Ga. App. 611, 612 (2) (349 SE2d 830) (1986) (issue of improper bolstering of state witness’ testimony on direct examination waived where defendant objected and moved for mistrial but, after court directed state to abandon inquiry, made no further request for curative instruction or a mistrial). But see Bolden v. State, 272 Ga. 1 (525 SE2d 690) (2000) (issue of improper closing argument preserved by merely objecting; no renewal of overruled objection or motion for mistrial required after adverse ruling).

       See generally Barnes v. State, 269 Ga. 345, 352 (12) (496 SE2d 674) (1998); OCGA § 16-5-3 (a), (b).

       See Willis v. State, 241 Ga. App. 813 (2) (527 SE2d 895) (2000).

        Bush v. State, 188 Ga. App. 313 (1) (372 SE2d 847) (1988); see Johnson v. State, 241 Ga. App. 448, 449 (1) (526 SE2d 903) (1999).

       See Barnes, supra.