author: Ruffin, Judge.

text:
    A00A1006.
    RAPPS v. COOKE et al.
    (540 SE2d 241)
   Ruffin, Judge.

Betsy Luise Rapps and her husband, Richard Rapps, purchased a home from James and Ellen Cooke and executed a promissory note and a deed to secure debt in favor of the Cookes. After the Rappses defaulted on the debt, the Cookes foreclosed on the property. Betsy Rapps then sued the Cookes for, among other things, wrongful foreclosure. The trial court granted the Cookes’ motion for summary judgment, and Rapps appeals. For reasons that follow, we affirm.

Viewed in the light most favorable to Rapps, the record reveals that the Rappses purchased the house in November 1994 and executed both a promissory note and a security deed. The Rappses were required to make monthly payments to the Cookes for a period of 30 years. If the Rappses defaulted, the security deed provided that the Cookes could, upon proper notice, accelerate the debt. The following notice provision was handwritten in the deed: “Notice of default shall be given by certified mail — return receipt — to the property address. The notice shall provide that the borrower shall have 25 days from the date the notice is sent to cure the default before legal action is taken.” An exhibit titled “Additional Provisions,” which was attached to the security deed, provided that

[a]ny notice or demand required to be given hereunder by the parties hereto shall be deemed to have been given and received (i) when actually received by the other party, if delivered in person, or (ii) 48 hours after a letter containing such notice, certified or registered, return receipt requested, with postage prepaid, addressed to such party is deposited in the United States Mail.

The Rappses defaulted on the note in September 1995, and the Cookes sent a notice of default informing them that they had 25 days in which to cure the default. The letter, which was sent via certified mail return receipt requested, was mailed to the address specified in the security deed. The Rappses apparently failed to claim the letter, which was then returned to the sender on or about October 17, 1995.

On October 26, 1995, the Cookes, through their attorney, wrote to the Rappses notifying them that they were accelerating the debt and instituting foreclosure procedures under the power of sale contained in the security deed. On October 31, 1995, Richard Rapps received this letter, which was also sent certified mail return receipt requested to the same address as the right to cure letter.

On November 15, 1995, the Rappses’ attorney wrote the Cookes’ attorney, acknowledging receipt of the acceleration letter, but claiming that they had never received notice of default. The Rappses demanded that the Cookes withdraw the foreclosure notice for failure to comply with the requirement in the security deed to provide a 25-day right to cure notice. According to Betsy Rapps, she called the Cookes’ attorney and requested that he send another copy of the right to cure letter, but he refused either to send the letter or provide the payoff amount.

On November 29, 1995, Betsy Rapps filed a Chapter 13 bankruptcy petition, staying the foreclosure proceedings. On March 4, 1996, after granting the Cookes’ motion for relief from the automatic stay, the bankruptcy court dismissed the bankruptcy case. Shortly thereafter, Richard Rapps filed for bankruptcy. Apparently, this action was eventually dismissed, too.

On November 4, 1996, after the bankruptcy petitions had been dismissed, the Cookes again notified the Rappses of their intent to foreclose and forwarded a copy of the foreclosure advertisement that had been submitted to the newspaper. Betsy Rapps again requested a right to cure letter and a payoff amount, but was not given either. According to Ms. Rapps, had the information been provided, she and her husband “had sufficient assets to bring the debt current.” Nevertheless, on December 3, 1996, the foreclosure took place.

Betsy Rapps sued the Cookes for wrongful foreclosure. The Cookes moved for summary judgment, asserting that they had properly foreclosed on the property. The trial court agreed and granted summary judgment to the Cookes.

1. In her first enumeration of error, Rapps contends that the trial court erred in granting summary judgment on her wrongful foreclosure claim because the evidence showed that the Cookes thwarted her right of redemption. According to Rapps, by failing to provide either the payoff amount or the right to cure letter, the Cookes failed to exercise their power of sale in good faith. We disagree.

“Under Georgia law, it is clear that a security deed which includes a power of sale is a contract and its provisions are controlling as to the rights of the parties thereto and their privies.” In exercising a power of sale, the foreclosing party is required only to advertise and sell the property in accordance with the terms of the instrument and to conduct the sale in good faith.

Here, Rapps suggests that the Cookes failed to comply with the terms of the security deed in that they failed to provide notice of default. Under the plain language of the security deed, however, notice of default was to be sent certified mail return receipt requested to the property address. The evidence shows that the Cookes did, in fact, send notice of default in this manner.

Rapps asserts that, because she and her husband never received notice, it was invalid. The contract, however, did not require actual receipt of notice. To the contrary, the contract specifically provided that notice “shall be deemed to have been given and received ... 48 hours after a letter containing such notice, certified or registered, return receipt requested, with postage prepaid, addressed to such party is deposited in the United States Mail.” Accordingly, given the express language of the notice provision, “the actual receipt (or want of receipt) by the grantor of the notice of sale under power is immaterial to the right of the grantee to sale under power.”

Rapps nevertheless contends that the Cookes did not act in good faith in that they failed, despite repeated requests, to provide a payoff amount. While it is true that “[g]ood faith in conducting the sale is not necessarily limited to the provisions of the deed,” we see no evidence that the Cookes acted with anything less than good faith. Although the Cookes may never have provided a payoff amount to the Rappses, we are aware of no legal authority that requires them to provide this information. Had the Rappses taken affirmative steps to indicate their willingness and/or ability to pay the entire debt, such as tendering a check in an amount approximating the payoff amount, bad faith might be inferred from the Cookes’ failure to provide the actual amount due. Here, however, it does not appear that the Rappses had either the willingness or ability to pay the entire debt. According to Rapps’s affidavit, she sought only to cure the default, which she no longer had the right to do following acceleration of the debt. Accordingly, in the absence of an expressed intent to pay the entire amount due, we will not infer bad faith from a creditor’s failure to provide a payoff figure.

2. Betsy Rapps asserts that the bankruptcy proceedings terminated the foreclosure. She argues that, under OCGA § 44-14-85, the Cookes were required to send a second default notice to recommence foreclosure proceedings.

Under OCGA § 44-14-85 (a), if foreclosure proceedings are withdrawn, the withdrawal “shall operate to rescind the acceleration of the maturity of the indebtedness and to reinstate the indebtedness upon the terms and conditions existing prior to the acceleration.” According to Rapps, this “statute clearly indicates that when the foreclosure does not take place after the notices are sent then the debt is reinstated to its pre-acceleration status as a matter of law.” Again, we disagree.

In construing a statute, “a court must first look to the literal meaning of the act, and if the language is plain and does not lead to absurd or impractical consequences, the court has no authority to place a different construction upon it but must construe it according to its terms.” In so doing, we give due weight and meaning to all of the words of the statute.

Decided October 4, 2000.

Betsy L. Rapps, pro se.

Nath & Associates, Marvin C. Berkowitz, for appellees.

Under its express terms, OCGA § 44-14-85 applies only to those foreclosure proceedings that have been withdrawn. According to Black’s Law Dictionary, to withdraw means “to take from” or to “remove.” The word connotes voluntary action. Here, the Cookes did not “remove” foreclosure proceedings; rather, the proceedings were stayed by the bankruptcy court as a result of action taken by the Rappses. The Cookes never took any action that was inconsistent with their intent to foreclose on the property. Accordingly, it cannot be said that they withdrew foreclosure proceedings within the meaning of OCGA § 44-14-85. Therefore, the trial court correctly concluded that the Cookes were not required to commence foreclosure proceedings anew,, but could proceed with the original foreclosure after the stay had been lifted.

Judgment affirmed.

Andrews, P. J, and Ellington, J, concur.

       Rapps also alleged defamation of title and fraud. Both of those claims were addressed in this Court’s opinion in Rapps v. Cooke, 234 Ga. App. 131 (505 SE2d 566) (1998).

       See Rapps v. PHH US Mtg. Corp., 220 Ga. App. 602, 603 (2) (469 SE2d 731) (1996) (“any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment”).

       (Punctuation omitted.) Gordon v. South Central Farm Credit, ACA, 213 Ga. App. 816, 817 (446 SE2d 514) (1994).

        Phillips v. Atlantic Bank &c. Co., 168 Ga. App. 590, 592 (3) (309 SE2d 813) (1983).

        McCollum v. Pope, 261 Ga. 835-836 (411 SE2d 874) (1992).

       (Punctuation omitted.) Brown v. Freedman, 222 Ga. App. 213, 215 (1) (474 SE2d 73) (1996).

       See Wright v. Barnett Mtg. Co., 226 Ga. App. 94, 96 (2) (485 SE2d 583) (1997) (providing reinstatement balance not required when foreclosing under power of sale contained in a security deed).

       The Rappses knew the amount they were required to pay each month and that they had not made a payment in fourteen months, and the promissory note specified a five percent penalty for late payment. Thus, the Rappses had sufficient information to at least approximate the payoff amount, and they could have tendered this amount. See Grebel v. Prince, 232 Ga. App. 361, 366 (2) (501 SE2d 538) (1998) (if there is a bona fide controversy over the amount owed, debtor may tender money admittedly due under note in order to block foreclosure sale).

       Although, on appeal, Rapps suggests that she would have paid off the entire debt, there is no evidence in the record that she ever communicated to the Cookes that she was willing or able to pay the entire debt.

        Dept. of Revenue v. Sledge, 241 Ga. App. 833-834 (1) (528 SE2d 260) (2000).

        Boyles v. Steine, 224 Ga. 392, 395 (162 SE2d 324) (1968).


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A00A1582.
    DEAN v. TOYOTA INDUSTRIAL EQUIPMENT MANUFACTURING, INC.
    (540 SE2d 233)
   Johnson, Chief Judge.

Johnny Dean was injured when a forklift backed into him as he exited a storage room at work. He sued Toyota Industrial Equipment Manufacturing, Inc. (“Toyota Industrial”), alleging that it should be held strictly liable for not installing on the forklift, as standard equipment, an alarm to warn people when the forklift was backing up. Toyota Industrial moved for summary judgment, but the trial court denied the motion as being filed too near the trial date.

The case was tried by a jury. After deliberating several days, the jury was deadlocked, and the trial court declared a mistrial. Toyota Industrial again moved for summary judgment, claiming it did not design the forklift; Dean’s employer could have installed an optional warning device on the forklift; Dean knew the forklift had no warning device; and he was aware of the dangers involved, and yet he walked into the path of the forklift. The trial court granted this motion. Dean appeals from the grant of summary judgment to Toyota Industrial.

1. Dean argues that the trial court erred in finding that Toyota Industrial is a mere seller of forklifts, when there is evidence indicating that Toyota Industrial is, instead, a manufacturer. The distinction is important because an action for strict liability can be maintained against a manufacturer, but not against a mere seller of a product.

OCGA § 51-1-11 (b) (1) provides, in relevant part, that the manufacturer of personal property is liable in tort to any person who may reasonably be affected by the property and who is injured because the property when sold was not merchantable and reasonably suited to the use intended. In a product liability action based in whole or in part on strict liability in tort, such as this case, a product seller is not a manufacturer as provided in OCGA § 51-1-11 and is not liable as such. A “product seller” is a person who, inter alia, sells, distributes, or assembles a product pursuant to a manufacturer’s plan, intention, design, specifications, or formulation.

In this case, it is undisputed that Toyota Industrial assembled the forklift. It is not clear from the evidence presented whether Toyota Industrial’s role in assembling the forklift rendered it a manufacturer or a mere product seller within the meaning of the strict liability statute.

The vice-president of engineering and quality assurance for Toyota Industrial testified that Toyota Industrial assembles the forklifts based on designs by “Toyota Automatic Lift” or “Toyota Automatic Loom Works.” The witness testified that Toyota Industrial is not involved in the design, development, or testing of the product and that it “build [s] the products per specifications given to us.” He did not explain, or at least Toyota Industrial has not shown us where in the record he did so explain, the relationship between Toyota Automatic Lift or Toyota Automatic Loom Works and Toyota Industrial and whether they are separate legal entities.

A salesman for Atlanta Forklift, Inc., the dealership which sold the forklift to Dean’s employer, testified that he asked the buyer during the sale whether he wanted to have an optional backup alarm installed on the forklift, and that he declined the equipment. The salesperson prepared the specifications sheet for the forklift requested by the employer and sent the sheet to Toyota Industrial for product assembly.

The record before us presents an issue which we have not seen in other product liability cases. On the one hand, it is undisputed that Toyota Industrial assembles the parts and builds the forklifts. It is also undisputed that Toyota Industrial installs the warning devices when requested and paid for by customers. The record contains no evidence from or about the purported designer of the forklift, which shares the “Toyota” name.

Interestingly, at no time before the jury trial did Toyota Industrial challenge Dean’s allegation that it was the forklift’s manufacturer. Indeed, Toyota Industrial did not include the question of whether it was the manufacturer as an issue in the consolidated pretrial order and expressly stated in the order that it manufactured the forklift. And throughout its pleadings and in depositions, as well as in its name, Toyota Industrial has referred to itself as a manufacturer.

We are not convinced that Toyota Industrial has shown that it is a mere product seller as contemplated by the statute. A defendant can be both a manufacturer and a seller simultaneously; in such a case, it is not entitled to the protections afforded a mere product seller.

We point out that in those cases in which we have held that the defendant was a mere seller rather than a manufacturer, the defendant did not actually assemble the product. In Alltrade v. McDonald, we stated that for strict liability purposes, manufacturers are “those entities that have an active role in the production, design, or assembly of products.” We stated further that the legislature did not intend “manufacturers” to include those entities “that had no real role in the creation of products,” such as those who merely label a product as their own. Unlike the defendants in those cases, Toyota Industrial had an active role in the production or assembly of the product. In fact, it alone assembled the forklift.

As movant on summary judgment, Toyota Industrial had the burden of showing the absence of any genuine issue of material fact. Considering its role as assembler and the lack of clarity as to which Toyota entity designed the forklifts, it has not met its burden of showing that it is a mere product seller as a matter of law. The trial court erred in granting summary judgment to Toyota Industrial based on its status as a mere product seller.

2. Dean contends the trial court erred in holding that summary judgment was proper because the evidence showed that Dean assumed the risk of injury. We agree with Dean.

In support of its motion for summary judgment, Toyota Industrial points to evidence that Dean knew his employer’s forklifts had no backup alarms, knew they were dangerous without the alarms, and had warned other employees to watch for forklift traffic. In rebuttal, Dean points to evidence that he “had no idea [the forklift] was back there,” and that no forklifts had been operating in the area that day. Dean testified that

[i]f I just knew he was back there, just knew he was back there, I would’ve never stepped out behind that wall. And if they — yeah, I might of should have looked. But if I had known — when I went back there, was no one back there. Just me and the crane operator. I had no idea, you know, [the forklift driver] had came through this door. . . . [W]hen [the forklift driver] came in there that day, he was making the very first run to start moving this stuff out to the storage area. That was his very first run.

Whether a party assumed the risk of injury is a jury question that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable, and undisputed evidence. In order to assume the risk, the injured party must not only know of the facts which create the danger, he must comprehend and appreciate the nature of the danger he confronts.

This is not such a case upon which assumption of the risk has been established by plain, palpable, and undisputed evidence. “The facts here do not measure up to a classic case of assumption of the risk such as trying to beat a rapidly approaching train across the crossing or participating in a drag race.” We cannot say, as a matter of law, that Dean voluntarily exposed himself to a known risk or that he deliberately chose an obviously perilous course of conduct. The evidence presented a case for the jury to decide whether Dean actually appreciated the specific risk and assumed it.

3. We agree with Dean that the trial court erred in granting summary judgment based on a “risk-utility” analysis. In its order, the trial court stated that it based its decision in part on an analysis of the risk-utility factors set out in Banks v. ICI Americas, and Ogletree v. Navistar Intl. Transp. Corp. (“Ogletree VI").

Under the risk-utility analysis, the risks inherent in a product design are weighed against the utility or benefit derived from the product. When a jury decides that the risk of harm outweighs the utility of a particular design, it is saying that in choosing the particular design, the manufacturer exposed the consumer to greater risk of danger than it should have. In making the risk-utility analysis, the factors to be considered include: the usefulness of the product; the gravity and severity of the danger posed by the design; the likelihood of that danger; the avoidability of the danger, i.e., the user’s knowledge of the product, publicity surrounding the danger, or the efficacy of warnings, as well as common knowledge and the expectation of danger, and the user’s ability to avoid danger; the state of the art at the time the product is manufactured; the manufacturer’s ability to eliminate the danger without impairing the product’s usefulness or making it too expensive; and the feasibility of spreading the loss in the price or by purchasing insurance. A manufacturer’s proof of compliance with federal regulations is also a factor to be considered. These factors are not exhaustive and do not apply in all cases. In general, and as noted in the Banks opinion, the weighing of the risk-utility factors is to be done by the trier of fact.

In this case, an engineer testified that a backup alarm is needed on forklifts “when you have a mixture of forklifts and people sharing the same area”; that, based on where the accident occurred, Dean would have heard the alarm and had an opportunity to avoid being injured; that the alarms cost between $30 and $100 on a forklift worth about $20,000; and that such alarms are standard on forklifts manufactured by Nissan. The expert concluded that backup alarms should be standard equipment on forklifts.

Decided October 4, 2000.

Charles A. Gower, James F. Myers III, for appellant.

Wood, Odom & Edge, Arthur B. Edge IV, for appellee.

There was also evidence supporting Toyota Industrial’s position that the risks of the forklift as manufactured did not outweigh the benefits. However, it was not for the trial court to resolve the facts or reconcile the issues. As the Supreme Court held in Ogletree VII, a product’s risks and benefits will rarely be determined as a matter of law when any of the Banks factors is disputed. Indeed, by adopting the risk-utility analysis, Georgia has actually increased the burden of a defendant, in seeking a judgment as a matter of law, to show plainly and indisputably an absence of any evidence that a product as designed is defective. Where there is some evidence that the risk caused by not having an alarm outweighed the utility of the forklift in not having an alarm, the issue of negligent design cannot be decided as a matter of law. Here, there was such evidence. Thus, the trial court erred in entering summary judgment in favor of Toyota Industrial.

Judgment reversed and case remanded.

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

       See Ream Tool Co. v. Newton, 209 Ga. App. 226, 227 (3) (a) (433 SE2d 67) (1993).

       OCGA § 51-1-11.1 (b).

       OCGA § 51-1-11.1 (a).

       The trial transcript shows the former name. The deposition transcript gives the latter name.

       OCGA § 51-1-11.1 (a), (b).

       See, e.g., Thomasson v. Rich Products Corp., 232 Ga. App. 424 (502 SE2d 289) (1998) (defendant was product seller when bagels sold under its name were baked by another company, shipped to it in sealed containers, reshipped without repackaging, and defendant did not participate in the manufacturing process); Alltrade v. McDonald, 213 Ga. App. 758 (445 SE2d 856) (1994) (defendant was a mere seller where its name was stamped on ladder built by another company, and defendant did not assist in design, testing, inspecting, or assembly); Ream Tool Co., supra (defendant was a mere seller, not a manufacturer, where it acted as a middleman in procuring a tool and selling it to plaintiff).

       (Citation and punctuation omitted; emphasis supplied.) 213 Ga. App. at 760.

       (Citation and punctuation omitted.) Id.

        Rubin v. Cello Corp., 235 Ga. App. 250, 252 (1) (b) (510 SE2d 541) (1998).

        Bodymasters Sports Indus. v. Wimberley, 232 Ga. App. 170, 174 (1) (c) (501 SE2d 556) (1998).

       Id.

       (Citation and punctuation omitted.) Little Rapids Corp. v. McCamy, 218 Ga. App. 111, 114 (1) (460 SE2d 800) (1995).

       Id. at 113.

       See Bodymasters Sports Indus., supra at 173-174 (1).

       264 Ga. 732 (450 SE2d 671) (1994).

       236 Ga. App. 89 (511 SE2d 204), rev’d, 271 Ga. 644 (522 SE2d 467) (1999) (“Ogletree VID").

        Banks, supra at 734 (1).

       Id.

       Id. at 736-737, n. 6.

       See id.

       Id. at 736 (1).

       Id. at 734-735 (1); Ogletree VII, 271 Ga. at 646.

        See Adams v. Sears, Roebuck & Co., 227 Ga. App. 695, 696-697 (1) (490 SE2d 150) (1997).

        Ogletree VII, 271 Ga. at 645.

       Id.

       Id.


author: Phipps, Judge.

text:
    A00A2263.
    MORRIS v. THE STATE.
    (540 SE2d 244)
   Phipps, Judge.

As a result of a fracas between rival gang members, Shane Morris was convicted of multiple counts of aggravated assault and of possession of a firearm during commission of a felony. Morris appeals the denial of his motion for a new trial. He contends that the trial court erred in denying his challenge under Batson v. Kentucky to the State’s use of a peremptory strike to remove Juror 26, the sole black member of the jury venire. We disagree and affirm.

During voir dire, the prosecuting attorney asked whether any juror, or any family member, relative, or close friend of a juror, had ever been the victim of a violent crime or accused of a crime. Although Jurors 10, 26, 33, and 39 responded in the affirmative, the prosecuting attorney exercised a peremptory strike only against Juror 26.

The transcript of voir dire shows the following. In response to the prosecutor’s question, Juror 10 related that his brother had been accused of robbery or forgery. When asked whether to the extent of his personal knowledge he thought his brother was treated fairly, the juror responded in the affirmative. Juror 26 stated that he had a high school friend who was convicted of a drug offense. The prosecutor asked the juror whether to the extent he had any knowledge he felt that his friend was treated fairly by the police. After Juror 26 responded affirmatively, the prosecutor observed that the response had been given with hesitation. In response to additional questioning, the juror then stated that he did not really know whether his friend was treated fairly. Juror 33 related that her brother had been murdered in another state and that the perpetrator of the crime was convicted. When asked whether to the extent of her knowledge she felt that the police acted appropriately and did a good job, she responded that she had no opinion in that regard because she had not attended the trial. Juror 39 stated that her son had been convicted of arson. When asked whether she felt he had been treated fairly, she responded “not necessarily” and explained why.

After voir dire concluded, Morris brought the Batson motion.
The United States Supreme Court has established a three-step test for evaluating challenges to peremptory strikes. Once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.

The trial court accepted the argument that the defense had made out a prima facie case of racial discrimination, thereby completing step 1 of Batson. During step 2, the prosecutor stated that he accepted Juror 10 because he responded without hesitation when asked whether his brother had been treated fairly, and that he struck Juror 26 because he only reluctantly and hesitatingly responded that his friend was treated fairly. The prosecutor neglected to offer an explanation for not striking Juror 33, and none was elicited. The prosecutor explained that he did not strike Juror 39 because he had only one remaining peremptory challenge and felt that he might need to use it against Juror 35, who had been a gang member and convicted felon whose rights had been restored. His dilemma was resolved when jury selection ended with defendant’s acceptance of Juror 34.

The trial court correctly resolved the step 2 question when it ruled that the prosecutor gave a race-neutral explanation for striking Juror 26. “[A] neutral explanation means an explanation based on something other than the race of the juror. . . . Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race neutral.”

In step 3, the court must “evaluate the persuasiveness of the justification for exercising the strike and determine ‘whether the opponent of the strike . . . carried his burden of proving purposeful discrimination.’ [Cit.]” The opponent of the strike may carry his burden of persuasion by showing that similarly situated jurors of another race were not struck.

“The trial court’s decision on a Batson motion rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” [Cit.]

“[T]he factors that make up a trial court’s credibility determination under Batson . . . will often go beyond the mere words that accompany the record before the appellate courts.”

Here, the record in fact reflects that when asked whether their friends or relatives had been treated fairly in connection with other criminal proceedings, Juror 10 did give a ready, affirmative answer, whereas Juror 26’s response was hesitating and equivocal. Of course, the degree of hesitation is not shown by the record. The prosecutor provided a plausible reason for accepting Juror 39 and was not asked to furnish a reason for not striking Juror 33. Under the circumstances, the trial court’s finding that the defendant did not carry his burden of proving purposeful discrimination is not clearly erroneous.

Decided October 4, 2000.

Rich & Smith, Randolph G. Rich, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       (Citations and punctuation omitted.) Williams v. State, 236 Ga. App. 190 (511 SE2d 561) (1999).

       (Citations and punctuation omitted.) Jackson v. State, 265 Ga. 897, 898 (2) (463 SE2d 699) (1995).

       Id. at 899.

       (Footnotes omitted.) Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998).

        Williams v. State, supra.

        Gardner v. State, 225 Ga. App. 427, 434 (483 SE2d 912) (1997) (physical precedent only).


text:
    A00A2430, A00A2431.
    DEAN v. THE STATE (two cases).
    (540 SE2d 246)
   Phipps, Judge.

Accusations were filed charging David Wendell Dean with possession of marijuana with intent to distribute on two separate dates within one month of each other. Dean filed virtually identical motions to suppress in each case.

Each motion alleged that on or about the date set forth in the accusation, Dean was approached, questioned, unlawfully detained, and arrested by (unnamed) law enforcement officers; that these actions were taken without probable cause and without specific and articulable facts reasonably warranting an investigatory stop under Terry v. Ohio; that incident to each stop he was frisked and a small bag allegedly containing marijuana was taken from the front pocket of his jacket; and that each frisk was conducted without his consent or probable cause.

At a consolidated hearing on the motions, the prosecuting attorney moved that both motions be dismissed on the ground that they do not comply with that part of OCGA § 17-5-30 (b) requiring that a motion to suppress “state facts showing that the search and seizure were unlawful.” As authority, the State relied on Rouse v. State. The trial court subsequently entered orders dismissing both motions. We granted Dean’s applications for discretionary appeal. For the reasons which follow, we find that the motions are sufficient and should not have been dismissed.

Decided October 4, 2000.

Charles A. Mullinax, for appellant.

Daniel J. Porter, District Attorney, Jennifer Kolman, Assistant District Attorney, for appellee.

In cases involving warrantless searches, the factual showing required by OCGA § 17-5-30 need not be made in great detail, because in such cases “many of the necessary allegations are negative facts (e.g., the search was conducted without a warrant, the movant did not consent to the search) and conclusions based upon mixed questions of law and negative fact (e.g., the officer lacked probable cause to arrest or search).” [Cit.] In such cases, motions to suppress are held sufficient if they “put the state on notice as to the type of search involved (without warrant vs. with warrant), which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.”

Fairly read, Dean’s motions to suppress established the type of searches (Terry stops and frisks) and identified the legal issues raised (whether the stops and frisks were authorized by reasonable suspicion and whether the resulting arrests were supported by probable cause). Did the suppression motions put the State on notice as to the witnesses whose testimony was required? For essentially two reasons, we conclude that they did. To begin with, the transcript of the hearing on the motions shows that the State did bring law enforcement officers to testify. Moreover, the State did not argue at the hearing that deficiencies in the motions left it unable to ascertain the identity of needed witnesses. Therefore, failure of the motions to identify the officers conducting the stops and frisks, and to more fully detail the attendant facts, was not fatal to the sufficiency of the motions.

The State’s reliance on Rouse is misplaced, because that decision is not binding as it is a physical precedent only.

Judgments reversed.

Johnson, C. J., and Smith, R J., concur.

       392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       241 Ga. App. 167 (526 SE2d 360) (1999).

        Young v. State, 225 Ga. App. 208-209 (1) (483 SE2d 636) (1997).

       See Lavelle v. State, 250 Ga. 224, 226 (3) (297 SE2d 234) (1982); State v. Barnett, 233 Ga. App. 496 (1) (504 SE2d 531) (1998); see also Hill v. State, 222 Ga. App. 839 (2) (476 SE2d 634) (1996); compare Wallin v. State, 248 Ga. 29 (1) (279 SE2d 687) (1981); Boatright v. State, 192 Ga. App. 112, 117 (8) (385 SE2d 298) (1989).

       See Court of Appeals Rule 33 (a).


author: Smith, Presiding Judge.

text:
    A00A1642.
    MANER v. CHATHAM COUNTY et al.
    (540 SE2d 248)
   Smith, Presiding Judge.

Plaintiff Charles A. Maner, Jr., a former Chatham County police officer, brought this action against the county and the county commissioners, alleging breach of contract, tort, and defamation. The trial court granted the county’s motion for summary judgment, and Maner appeals, asserting as his sole contention that the trial court should have considered the issue of promissory estoppel. Because Maner did not have a valid contract with the county and promissory estoppel cannot apply to the unauthorized acts of a public officer, we affirm.

In December 1996, Maner, an officer with the marine patrol of the Chatham County police, was the subject of an Internal Affairs Division investigation after pointing his service firearm at other police officers. After the investigation, the chief terminated Maner’s employment for violating published police department firearms safety rules.

Maner obtained counsel, who investigated a possible appeal of his termination. During his investigation, counsel spoke with the police chief and the human resources director for the county. According to Maner’s counsel, the human resources director, now deceased, was primarily responsible for handling the matter.

After these discussions, Maner’s counsel was convinced that Maner could not successfully appeal the termination, and his “fallback” position was to obtain psychological help for Maner, “clean up his disciplinary jacket and . . . save his Georgia Peace Officer Standards and Training [(POST)] certification because with help he could probably return to police duty.” Maner’s counsel made an offer to the human resources director that “rather than go forward with the appeal, we would withdraw the appeal, submit our resignation for Mr. Maner, if they would give him the help, whatever medical, psychological help he might need, clean up his disciplinary jacket, and allow him to keep his [POST] certification.” Maner’s counsel informed the police chief of these negotiations, reached an agreement on those terms with the human resources director, and sent a letter confirming their agreement. But the records of the disciplinary proceeding were not removed from Maner’s file, and his resignation was reported to the POST council, which suspended Maner’s certification for two years. Maner did not appeal the council’s decision.

Maner brought this action seeking damages for the county’s breach of his counsel’s agreement with the human resources director by failing to purge his files and reporting his resignation to the state authorities. Maner also contended that the human resources director committed fraud in misrepresenting to his attorney that the county had concerns about Maner’s mental state, while a one-hour evaluation of Maner by a physician at the county’s request showed “no psychiatric disease.” He also sought damages against the county for slander and libel in representing that he has mental problems and is dangerous to himself and others. But he appeals only the denial of his promissory estoppel claim, and matters not enumerated as error will not be considered on appeal. Young v. Turner Heritage Homes, 241 Ga. App. 400, 401 (2) (526 SE2d 82) (1999).

The trial court correctly held that the purported agreement between Maner’s counsel and the human resources director is void and unenforceable. The Georgia General Assembly established the POST council to regulate various aspects of law enforcement statewide. OCGA § 35-8-7. The POST council has “authority ... to discipline a certified peace officer” for numerous reasons, including

any unprofessional ... or deleterious conduct or practice harmful to the public, which conduct or practice need not have resulted in actual injury to any person. As used in this paragraph, the term “unprofessional conduct” shall include any departure from, or failure to conform to, the minimal standards of acceptable and prevailing practice of a peace officer.

OCGA § 35-8-7.1 (a) (6). Local police departments are required to maintain duplicate records on all peace officers or candidates covered by the Act and to forward one copy to the council. OCGA § 35-8-15. Finally, council regulations state that any local department receiving a resignation in lieu of termination “shall inform the Council in writing within ten (10) days of such action and records concerning the disciplinary action shall be made available to an investigator with POST Council.” Ga. Comp. R. & Regs. r. 464-3-.06.

“A contract to do an immoral or illegal thing is void.” OCGA § 13-8-1. See also State v. Evans, 212 Ga. App. 415, 416 (442 SE2d 287) (1994) (agreement of parties cannot alter state law); Norman Enter prises Interior Design v. DeKalb County, 245 Ga. App. 538 (538 SE2d 130) (2000) (parties cannot circumvent law by settlement agreement). The purported agreement to “remove any and all disciplinary materials from Mr. Maner’s employee file ... to preserve his [POST] certification and show a continuity in his employment record,” violates both the letter and the spirit of the applicable law. Failing to report Maner’s resignation and “sanitizing” Maner’s records would have violated not only the council’s regulations but also the record-keeping requirements of OCGA § 35-8-15 and the prohibition of OCGA § 35-8-7.1 (a) (2) against knowingly making “misleading, deceptive, untrue, or fraudulent representations in the practice of being a peace officer or in any document connected therewith.”

Moreover, “[p]owers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of an unconferred power.” OCGA § 45-6-5. The legislation establishing the governing authority of Chatham County does not authorize the human resources director to enter into contracts on behalf of the county or settle Maner’s claim. The enabling act places the authority to enter into contracts with the chairman of the board of commissioners. Ga. L. 1984, pp. 5050, 5064, § 14 (4). The county administrator is empowered to direct and supervise the administration of all departments of the county government, Ga. L. 1984, p. 5066, § 17 (4), and the county attorney is empowered to “prepare or supervise the preparation of all contracts,” Ga. L. 1984, p. 5069, § 21 (2), while the board of commissioners is empowered to “examine, settle, and allow all claims against the county.” Ga. L. 1984, p. 5071, § 25 (16). The county therefore cannot be estopped by the unauthorized actions of the human resources director in entering into an alleged settlement agreement with Maner’s attorney. McDilda v. Bd. of Commrs. of Bulloch County, 230 Ga. App. 530, 533 (1) (497 SE2d 25) (1998).

Maner relies upon Star Laundry v. City of Warner Robins, 189 Ga. App. 839 (377 SE2d 709) (1989), to assert that OCGA § 45-6-5 is inapplicable to an officer’s unauthorized acts. But this decision was reversed by the Supreme Court of Georgia in City of Warner Robins v. Rushing, 259 Ga. 348 (381 SE2d 38) (1989). In its opinion, the Supreme Court reiterated that the doctrine of estoppel may not be used against a government when “the government official had no authority to take the action in question.” (Emphasis in original.) Id. at 349. And here, as in Rushing, no evidence was presented that the county or its commission was aware of or ratified the agreement. “All contracts entered into by the county governing authority with other persons in behalf of the county shall be in writing and entered on its minutes.” OCGA § 36-10-1. The trial court correctly granted summary judgment to the county on this issue.

Decided October 5, 2000.

Savage, Turner & Pinson, Brent J. Savage, C. Dorian Britt, for appellant.

Lee, Black, Scheer & Hart, R. Jonathan Hart, Emily E. Garrard, for appellees.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       While Maner now denies having done so, his former counsel acknowledged that Maner had admitted pointing his service weapon at other officers, while contending it was “squad room joking and, you know, horseplay.”

       But, according to the police chief, Maner’s evaluation, under the circumstances, had no bearing on his determination of Maner’s case. In fact, he testified that he never saw the report until after Maner’s termination. Instead, he relied upon the Internal Affairs investigation, including interviews of current and former co-workers, which indicated to him that Maner was a danger to other members of the marine division through his “bizarre display of misconduct involving a weapon that could endanger others.” He found the physician’s report to be “in direct conflict with my own thoughts on it.”


author: Miller, Judge.

text:
    A00A1520.
    MOSER v. THE STATE.
    (538 SE2d 904)
   Miller, Judge.

The grand jurors for Bartow County, Georgia, charged Eric Joshua Moser and one other with possession of more than one ounce of marijuana (Count 1), possession of marijuana with intent to distribute (Count 2), possession of methamphetamine (Count 3), possession of methamphetamine with intent to distribute (Count 4), trafficking in more than 28 ounces of methamphetamine (Count 5), and possession of devices to commit a crime, namely a set of electronic scales and a box of plastic baggies, commonly used in the retailing of controlled substances (Count 6). All crimes allegedly occurred on or about November 3, 1996.

Moser filed a plea of double jeopardy based upon his prior guilty plea and conviction in the U. S. District Court for the Northern District of Georgia, Rome Division, where Moser admitted the allegations in Count 1 of a federal indictment charging him and several others with conspiracy to “possess with intent to distribute methamphetamine,” from dates unknown to the grand jury but including at least from January 1,1996 through December 18,1997. In consideration for his cooperation, a separate count charging Moser with possession with intent to distribute methamphetamine on November 3, 1996, was dismissed.

The superior court concluded (without specification) that the “offenses charged in the Bartow County indictment require different elements of proof than the offenses charged in the federal indictment,” and denied Moser’s plea of double jeopardy. This direct appeal followed.

1. Moser contends that the procedural and substantive aspects of double jeopardy under the U. S. Constitution and the Georgia Constitution preclude any State charges (or at least any methamphetamine charges) being brought against him based on his acts of November 3, 1996. Yet even if the crimes were identical under the Georgia and federal criminal codes, Moser would not have been impermissibly subjected to double jeopardy by these State charges because of the “dual sovereignty” doctrine. Under the “dual sovereignty” doctrine, “ ‘an act denounced as a crime by both national and state sovereign-ties is an offense against the peace and dignity of both and may be punished by each.’ ” The first two enumerations are without merit.

2. Moser next contends any State prosecution of the November 3, 1996 methamphetamine charges alleged in Counts 3, 4, and 5 is barred by the provisions of OCGA § 16-1-8 (c), which provides:

A prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime . . . within the concurrent jurisdiction of this [S]tate if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution. . . .

(Emphasis supplied.) Although this Code section provides greater protection than the minimum constitutional standards, we conclude this enumeration is without merit.

Under 21 USC § 841 (a) (1), it is a federal crime to manufacture, distribute, or dispense, or to possess with intent to manufacture, distribute, or dispense, a controlled substance such as methamphetamine. This is virtually identical to OCGA § 16-13-30 (b). It is a further federal offense to attempt or to conspire to commit any offense proscribed by 21 USC § 801 et seq. As in Brown v. State, the circumstances here establish the exception to OCGA § 16-1-8 (c)’s bar to State prosecution after a federal conviction based on the same conduct, because the two offenses each contain an element not required by the other. The conviction for conspiracy in federal court required proof of Moser’s knowing and voluntary participation in an unlawful agreement to possess and distribute methamphetamine, whereas the Georgia crimes require proof of the possession alleged in the indictments and, in the case of trafficking methamphetamine, proof of possession of 28 grams or more. Consequently, we hold that State prosecution of the crimes alleged in Count 3 (possession of methamphetamine), Count 4 (possession of methamphetamine with the intent to distribute), and Count 5 (party to the crime of possessing more than 28 grams of a mixture of methamphetamine) is not barred under OCGA § 16-1-8 (c), based upon Moser’s conviction in federal court for conspiracy to possess methamphetamine with the intent to distribute, during the time period including November 3, 1996. Counts 1 and 2 (marijuana charges) and Count 6 (possession of devices for the commission of a crime) clearly are not barred by the prior federal conviction. The trial court did not err in denying Moser’s plea of double jeopardy.

Decided September 11, 2000

Reconsideration denied October 6, 2000

Mitchell D. Durham, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       See Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982).

        Satterfield v. State, 256 Ga. 593, 595 (2) (351 SE2d 625) (1987).

        Heath v. Alabama, 474 U. S. 82, 89 (106 SC 433, 88 LE2d 387) (1985), citing United States v. Lanza, 260 U. S. 377, 382 (43 SC 141, 67 LE 314) (1922).

        State v. Estevez, 232 Ga. 316, 317 (206 SE2d 475) (1974).

       See also OCGA § 16-13-31 (e).

       21 USC § 846. Compare OCGA § 16-4-1 (criminal attempt), § 16-4-8 (conspiracy), and § 16-2-20 (parties to the crime).

       181 Ga. App. 795, 796-797 (354 SE2d 3) (1987) (federal conviction for conspiracy to “import a controlled substance into a customs territory of the United States” contains element not included in Georgia offense of trafficking cocaine committed by “knowingly and actually possessing more than 400 grams,” which in turn contains an element not included in the federal importation statute).

        United States v. Torres, 53 F3d 1129,1134 (I) (A) (10th Cir. 1995). 21 USC § 846 does not require proof of an overt act in order to authorize a conspiracy conviction. United States v. Mulherin, 710 F2d 731, 737 (II) (c) (11th Cir. 1983).

       OCGA § 16-13-31 (e).


author: Andrews, Presiding Judge.

text:
    A00A1635.
    TEW v. THE STATE.
    (539 SE2d 579)
   Andrews, Presiding Judge.

Craig Tew appeals from the judgment entered after a jury found him guilty of conspiracy to traffic in marijuana, armed robbery, three counts of aggravated assault and possession of a firearm during the commission of a crime. We find no reversible error and affirm.

The evidence at trial, taken in a light most favorable to the verdict, was that a confidential informant knew someone in the area who wanted to buy some marijuana. The confidential informant talked to Tew’s co-defendant, Keshia Turner, and arranged a meeting to discuss the sale. Turner did not mention that Tew would be involved in the deal and acted alone in talking and meeting with the confidential informant and undercover officer Prieto.

On the day of the drug buy, Turner and the confidential informant talked by phone about the substance and procedure of the pending deal. Tew was present but not on the line during any of these calls. Turner testified at trial that she and Tew were not going to pay for the marijuana, but instead planned to steal it.

That evening, Turner met with the confidential informant and Officer Prieto to finalize the plans for the sale. During this meeting, police officers who were monitoring from outside the restaurant saw Tew observing the meeting from a distance: After the meeting, Prieto opened the trunk of the car and showed Turner the marijuana. Turner and Prieto then agreed that Prieto would call her in approximately 30 minutes to set up a plan for the actual exchange.

After Turner left, Prieto took the marijuana out of the trunk for safe keeping and returned to a motel directly behind the Shoney’s restaurant where the meeting had taken place. There were several other officers waiting in two of the rooms at the motel. The officers’ plan was to make the sale and arrest in one room and monitor from the adjoining room. But, while Turner waited in the car, Tew approached Prieto, who was still sitting in his car. Tew told Prieto that he was there to complete the deal. Prieto became concerned that things were not going according to plan because Turner was supposed to be the only person involved in the deal. Prieto also saw that Turner was lying down inside Tew’s car in the passenger’s seat.

At that point, Tew accused Prieto of having something taped to his chest, and Prieto, who was wearing a body bug, raised the body bug along with his shirt so that Tew could not see it. Prieto then asked Tew if he was a cop, and Tew said no, bringing up his shirt with his left hand and simultaneously pulling out a gun with his right hand. Tew then asked Prieto for the keys to the car, and Prieto tossed them to him. Keeping the gun trained on Prieto, Tew tried to turn the key to unlock Prieto’s car.

Prieto gave the signal that he was in trouble to the officers waiting in the motel room. When the officers came running out, shouting “Police,” Tew started firing, hitting Officer Bixler. Bixler testified that he fell down after Tew shot him and Tew turned away from him to fire at the other officers. Bixler got up and said, “Police, drop your weapon,” and Tew turned and shot him again. Tew was shot twice by the officers and, shortly afterward, was caught and arrested.

Tew testified in his own defense and said he went to the Shoney’s restaurant that day looking for Turner. He said he was worried that she was in trouble with drug dealers. Tew claims he talked to Turner and she told him she was afraid and did not want to go through with the deal. Tew said he would go talk to the drug dealers for her and tell them to leave her alone. Tew stated that when he started talking to Prieto, Prieto was. loud and aggressive, and when Prieto reached behind him, Tew thought he was pulling out a gun. Tew then pulled out his own gun and pointed it at Prieto. Tew said Prieto threw him the car keys and then Tew saw “flashes” and realized he was shot. Tew said he turned to run and was shot again. He began shooting behind him in the direction of the gunfire.

Turner testified and said that she lived with Tew and the two of them planned to steal the 120 pounds of marijuana, not buy it. She said that she and Tew went to the motel to meet Prieto and she leaned down in the seat so that Prieto would not see her. Turner stated that Tew pulled his gun out and pointed it at Prieto and she thought he fired his gun before the officers began firing at him.

1. In Tew’s first enumeration of error, he claims that the trial court erred in denying his motion to suppress evidence because OCGA § 16-13-49 (u) (1) requires the Gwinnett County Police Department to either destroy forfeited contraband that is dangerous to the public or send it to an appropriate agency for medical or scientific use. Tew claims that because possession of the marijuana used in the reverse sting was “illegal,” all evidence gathered by police as a result of their use of this marijuana was fruit of the poisonous tree and must be suppressed.

We disagree. The exclusion of evidence is an extreme sanction and one not favored in the law. State v. Roddy, 231 Ga. App. 91, 93 (497 SE2d 653) (1998). Moreover, the exclusionary rule applies to evidence obtained in violation of a defendant’s Fourth, Fifth and Sixth Amendment rights. See United States v. Wade, 388 U. S. 218, 237 (87 SC 1926, 18 LE2d 1149) (1967); Massiah v. United States, 377 U. S. 201, 206 (84 SC 1199, 12 LE2d 246) (1964); Mapp v. Ohio, 367 U. S. 643, 654 (81 SC 1684, 6 LE2d 1081) (1961); Elkins v. United States, 364 U. S. 206 (80 SC 1437, 4 LE2d 1669) (1960); Blackburn v. Alabama, 361 U. S. 199, 205 (80 SC 274, 4 LE2d 242) (1960). The exclusionary rule is not a personal constitutional right, but rather a judicially created remedy to deter government violations of the constitution. United States v. Leon, 468 U. S. 897, 906 (104 SC 3405, 82 LE2d 677) (1984).

Tew does not allege any violation of his constitutional rights, and there was none. The illegal act complained of is not the reverse sting, but instead the failure to destroy the marijuana used in the reverse sting. Thus, the statute violated is one enacted to provide for the destruction of forfeited contraband dangerous to the public, not one enacted to protect a defendant’s constitutional rights. Because the alleged illegal act did not violate any of Tew’s constitutional rights, it did not result in evidence that must be suppressed. There was no error.

2. Next, Tew claims the trial court erred by denying his motion in limine to prevent the State from referring to the substance used by the police as marijuana. Tew argues that there was no scientific evidence introduced at trial proving the substance he was convicted of conspiring to traffic in was marijuana.

As the State points out, the crime of conspiracy to traffic in marijuana was complete before officers opened the trunk and showed Turner the marijuana. See OCGA § 16-4-8; Young v. State, 205 Ga. App. 357, 362 (422 SE2d 244) (1992) (crime of conspiracy is complete when the agreement is made and an overt act in furtherance of the conspiracy has been committed). Therefore, Tew has shown no harm from the trial court’s decision to allow the State to refer to the substance as marijuana. Moreover, the testimony was relevant because it showed that Turner believed there was marijuana in the trunk. She in turn told Tew that it was marijuana, thus explaining the events leading up to the offenses of aggravated assault and armed robbery.

3. Tew next claims the trial court erred in refusing to charge the jury on entrapment. We disagree.

In Georgia, the entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must [be] induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. [Cits.]

(Punctuation omitted.) Gray v. State, 191 Ga. App. 135, 136 (381 SE2d 312) (1989).

Because Tew never spoke with any State agent, there must be evidence at trial that Turner was entrapped in order to warrant a charge. We note, as the State points out, that the deal was for Turner to buy the marijuana in the reverse sting, not steal it. In any event, we find nothing in either the officers’ or Turner’s testimony which warranted a jury charge on entrapment. It is never error for the trial judge to refuse to charge on entrapment when the evidence fails to create a legal issue of entrapment. Lawrence v. State, 227 Ga. App. 70, 73 (487 SE2d 608) (1997).

4. Next, Tew claims the trial court erred in admitting into evidence a black handgun with similar characteristics to the gun Tew used to shoot the officer. Officer Prieto testified that the gun introduced at trial was black and was a semiautomatic pistol of the same type as the one used by Tew. Tew also stated that the gun “look[ed] like the gun that I had.” Where, as here, a weapon is identified at trial as similar to the one used to commit the crime, the weapon is admissible, whether or not it is the identical weapon. Duvall v. State, 238 Ga. 325, 326 (232 SE2d 918) (1977).

Paxton v. State, 160 Ga. App. 19 (285 SE2d 741) (1981), relied on by Tew, is not to the contrary. In Paxton, the court held that it was error to introduce a gun into evidence when there was a dispute as to the actual existence of a real gun. Id. at 23. That is not the case here.

In addition, Tew has shown no harm caused by the introduction of the gun. Given that he admitted shooting at the officers and the undisputed evidence was that he did, in fact, shoot one of the officers twice, it is highly probable that any error in the gun’s admission into evidence did not contribute to the judgment. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

5. Tew claims the trial court erred by refusing to charge the jury on the lessér included offense of robbery by intimidation. Although robbery by intimidation is a lesser included offense of armed robbery, failure to charge on this lesser included offense is not error where the evidence does not demand such a charge. Holcomb v. State, 230 Ga. 525, 527 (198 SE2d 179) (1973). Here, the uncontradicted evidence was that Tew pointed a gun at Officer Prieto and forced him to hand over the keys to the car. There was no evidence, therefore, that would have authorized a conviction for robbery by intimidation that would not also have demanded a conviction for armed robbery. Griffeth v. State, 154 Ga. App. 643, 645 (269 SE2d 501) (1980); Lightfoot v. State, 227 Ga. App. 605, 607 (490 SE2d 177) (1997).

6. In his next enumeration of error, Tew argues that the trial court erred in refusing his request to charge on reckless conduct as a lesser included offense of aggravated assault and aggravated assault on a police officer. Tew cites Shaw v. State, 238 Ga. App. 757 (519 SE2d 486) (1999), for the proposition that reckless conduct is a lesser included offense of aggravated assault in this case.

But, Shaw is not on point. In Shaw, there was evidence that the defendant fired into the air. Here, there was no such evidence presented.

Moreover, an essential element of reckless conduct is criminal negligence. Hall v. State, 235 Ga. App. 44 (508 SE2d 703) (1998); Perryman v. State, 208 Ga. App. 754 (431 SE2d 742) (1993). In this case, the undisputed evidence was that Tew pointed his gun at the victims and fired. There is no evidence that he was negligent in pointing the gun or firing. Under these circumstances, it was not error for the court to refuse to charge on reckless conduct. Hall, supra at 47.

Decided September 21, 2000

Reconsideration denied October 6, 2000.

Kristopher Shepherd, for appellant.

Daniel J. Porter, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.

7. In his last enumeration, Tew contends the trial court erred in refusing to grant a new trial after it was learned that a juror was related to one of the officers who appeared in a video recording of some of the events that night. The officer did not take the stand at trial, but the video was shown to the jurors.

During voir dire, the juror did state that he had a nephew who was a Gwinnett County undercover drug investigator. But, it was not until after trial that Tew discovered that one of the investigators taking part in the reverse sting was the juror’s nephew.

Tew cites to Harris v. State, 188 Ga. 745 (4 SE2d 651) (1939), as authority that a new trial is warranted when a defendant discovers after trial that a prosecuting witness is related to a juror. This is incorrect. Harris applied to a juror’s relationship to prosecutors, not prosecuting witnesses.

Moreover, “[Relationship to a witness is not per se a ground for excusing a prospective juror.” Brantley v. State, 262 Ga. 786, 788 (2) (d) (427 SE2d 758) (1993). In this case, the juror’s nephew was not even a witness. We find no error in the trial court’s decision to deny the motion for new trial on these grounds.

Judgment affirmed.

Ellington, J., concurs. Ruffin, J., concurs in the judgment only.

       Turner had already pled guilty and been sentenced.

       In Dean v. Gober, 272 Ga. 20 (524 SE2d 722) (2000), decided after the reverse sting in this case, the Supreme Court affirmed the trial court’s order issuing a writ of mandamus requiring the Gwinnett County Police Department to comply with OCGA § 16-13-49 (u) (1). Id. at 21-22. The Court declined to reverse the trial court for refusing to order the destruction of the specific contraband used in Gober’s case, however, because it might still be needed for evidentiary purposes. Id. at 23.


text:
    A00A1746.
    A00A1747.
    A00A1748.
    CAMP v. EICHELKRAUT et al. EICHELKRAUT v. CAMP. NICHOLSON v. CAMP.
    (539 SE2d 588)
   Miller, Judge.

The following chronology is relevant to the disposition of these three appeals:

Jack Nicholson and Patricia Eichelkraut each owned ten percent of two closely held companies with Wayne M. Camp owning the remaining eighty percent. The companies provided forensic accounting and consulting services to surety and fidelity companies. When Eichelkraut noticed questionable tax and accounting practices, she brought it to the attention of Nicholson, and they agreed to sue Camp for allegedly diverting money from the companies. On April 28, 1995, the morning of trial, Eichelkraut and Camp reached a settlement agreement which was reduced to writing and executed by all the parties a week later.

In the formal settlement agreement, they released each other and dismissed the suit. Eichelkraut and Nicholson sold their interests in the businesses to Camp and his companies in exchange for payments of $145,000 and $175,000, respectively. All parties agreed to a “NON-DISPARAGEMENT” provision whereby they would “cease and refrain from making any disparaging or defamatory remarks or comments regarding one another. . . .” This was understood by the parties to prohibit even truthful statements that put another in a bad light. And, in a “CONFIDENTIALITY” provision, they promised “not to disclose, directly or indirectly, any financial information . . . previously obtained,” except as may be required pursuant to valid order or subpoena of a court of competent jurisdiction or at the request of a government regulatory agency. They also agreed to a mutual exchange or return of personal property, whereby Camp was entitled to “retrieve” any “original business records, [R]olodexes, diaries and computer disks” believed to be in Nicholson’s or Eichelkraut’s possession. At the time the agreement was executed, Nicholson’s attorney (and Eichelkraut’s former attorney) possessed a box of documents consisting of corporate documents, business records, and files Nicholson and Eichelkraut had copied from the office files. Nicholson and Eichelkraut warranted that they had not “copied any original (or copies thereof) documents which they are tendering back. ...”

Meanwhile, Monte Green, a former employee fired by Camp for allegedly befriending Nicholson and Eichelkraut, decided to inform the police that Camp’s businesses were engaged in illegal activities. Before contacting the police, Green attempted to enlist Nicholson’s help. Nicholson declined, but alerted Eichelkraut that Green was contacting the police. Eichelkraut contacted Camp to alert him.

Green informed the Douglasville Chief of Police, Joe Whisenant, that he had reason to believe Camp was guilty of some kind of fraudulent behavior involving the Safeco and Continental insurance companies, and that Nicholson had information that could help with any investigation. In three interviews with police, including an interview with fraud investigators for the sureties Safeco and Continental present, Green outlined his suspicions that Camp was involved in fraud.

As a result of the tip from Green, Chief Whisenant telephoned Nicholson and “asked him to come in and see [him],” in order to confirm or deny Green’s allegations. Nicholson refused to talk of any specifics without a subpoena, although he explained generally how the surety business works. Nicholson also gave Chief Whisenant the names of trustworthy contacts with the sureties. In response to a subpoena for the production of evidence in a grand jury criminal investigation, Nicholson (or his counsel) provided the police with the box of documents (invoices and time sheets, etc.) used by Eichelkraut and Nicholson in their first suit against Camp. After he testified before the grand jury, Nicholson was twice summoned back to Chief Whisenant’s office, where he spoke with Safeco and Continental representatives as well as the police. While insisting that he truthfully answered all questions posed to him, Nicholson also conceded his truthful answers were disparaging of Camp.

In September 1995, Eichelkraut composed and Nicholson edited three anonymous letters, one sent to a federal judge who had appointed Camp as a bankruptcy trustee or administrator in an interpleader action against a fidelity bond, one sent to the ethics committee of the Georgia Society of Certified Public Accountants, and the third sent to the business editor of an Atlanta newspaper, all referencing the Douglas County police investigation of Camp for alleged insurance fraud.

In response, Camp brought the instant action against Nicholson and Eichelkraut alleging breach of the nondisparagement clause and other provisions of the settlement agreement and also for tortious interference with contractual and business relations. Nicholson and Eichelkraut counterclaimed for breach of contract (nonpayment), disparagement, and interference with contractual and business relations. In an earlier appeal, this Court affirmed the grant of partial summary judgment to Camp, holding the three letters violated the nondisparagement section of the settlement agreement and were not privileged under OCGA § 51-5-7 in Camp’s contract claim.

On remand, the case went to a jury to determine Camp’s damages and to decide the counterclaims. The trial court directed a verdict that Nicholson breached the financial confidentiality and nondisparagement covenants of the settlement agreement by speaking with representatives of Safeco and Continental. The court further directed a verdict that Nicholson and Eichelkraut breached the promise to return all personal belongings, memorabilia, and original records.

In special interrogatories, the jury returned verdicts against Eichelkraut for breach of contract ($145,000), against Nicholson for breach of contract ($175,000), against Eichelkraut for tortious interference with business relations (in favor of the companies now wholly owned by Camp for $100,000 total), but further in favor of both Eichelkraut and Nicholson against Camp on their counterclaims for tortious interference with business relations ($240,000 and $276,753, respectively). The trial judge initially granted Camp’s motion for judgment notwithstanding the verdict on the tortious interference claims of Eichelkraut and Nicholson, but later vacated this decision and reinstated the verdicts on those claims.

From the final judgment on the jury’s verdicts, all three parties appeal. In Case No. A00A1746, Camp enumerates as error the denial of his motion for j.n.o.v. as to the damages assessed against him for tortious interference. In Case No. A00A1747, Eichelkraut enumerates the direction of the verdicts against her for breach of contract and the denial of her motion for j.n.o.v. regarding tortious interference. In Case No. A00A1748, Nicholson enumerates the direction of the verdicts against him on Camp’s breach of contract claims. The cases are hereby consolidated for disposition on appeal.

1. Tortious Interference. To recover under a theory of tortious interference with business relations, a plaintiff must show defendant: (1) acted improperly and without privilege, (2) acted purposely and maliciously with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) caused plaintiff financial injury. The term “maliciously” is broadly construed to encompass any unauthorized interference or any interference without legal justification or excuse. A directed verdict or j.n.o.v. is authorized only “[i]f 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.

Case No. A00A1746

2. Inducement. An essential element of tortious interference with business relations is that the alleged tortfeasor used wrongful means to induce a third party or parties not to enter into or continue a business relationship with the plaintiff. Although Nicholson testified that the three former partners were "blacklisted” in the surety business, there is simply no evidence that any entity refused to hire Nicholson or Eichelkraut for particular work they otherwise would have received, but for Camp’s improper inducements via wrongful means. Thus, the jury’s damage awards against Camp for tortious interference with business relations are not authorized by any evidence. In Case No. A00A1746, the trial court erred in denying Camp’s motions for j.n.o.v. as to the tortious interference counterclaims of Nicholson and Eichelkraut.

Case No. A00A1747

3. Proceeding pro se, Eichelkraut enumerates the failure of the trial court to grant her j.n.o.v. or a new trial for any tortious interference with the business relationships of Camp & Associates, P.C. and International Surety Consultants, Inc. The jury awarded each corporate plaintiff $50,000.

The specifications against Eichelkraut are the same facts and circumstances forming the bases for her alleged breaches of the settlement contract. First, she allegedly failed to properly return corporate documents prepared for her previous litigation such that Nicholson was in a position to turn them over to police and insurance investigators in response to a subpoena. Second, Eichelkraut’s disparaging letters allegedly caused the two corporations to lose business. Eichelkraut argues that, even viewing the evidence in the light most favorable to the corporate plaintiffs, there is no evidence of impropriety, malice, or improper inducement resulting from the alleged failure to turn over the litigation documents. She further argues there is no evidence that any surety refused to do business with either corporate plaintiff as a result of her letters. We agree.

(a) Failure to Return. After the hearing where she and Camp came to their agreement to settle, Eichelkraut sealed all the litigation documents and records she was to turn over in a box, marked it confidential, took the box to her former attorney’s office and left it there, with the understanding that the papers would be turned over to Camp’s attorney. The only papers she kept related to personal income tax matters, as contemplated by the settlement agreement. Camp himself admitted there was not “any problem with the documents. That fact that they took them to the police and lied about them, . . . that’s the problem.” Yet it is undisputed that Eichelkraut herself never testified before the grand jury.

Plaintiffs argue that Eichelkraut’s alleged failure to comply set into motion a series of events that enabled the police and fraud investigators to examine corporate documents to detect double billing. In our view, however, Eichelkraut’s failure to personally return to Camp the litigation documents she boxed up and placed out of her control is not the legal cause of any fidelity insurer’s subsequent failure or refusal to do business with plaintiffs Camp & Associates, P.C. or International Surety Consultants. There simply is no evidence that Eichelkraut intended to harm these businesses improperly by delivering them into the hands of the defense attorney who formerly represented both Eichelkraut and Nicholson. The direct evidence is that Eichelkraut believed she was in compliance with her contractual obligations in so doing, and a substantial compliance is all that was required of either party. Moreover, plaintiffs failed to produce or even identify a single insurer that refused to do future business with Camp & Associates or International Surety Consultants as a result of Eichelkraut’s alleged failure to comply with the “return-of-property” provision of the settlement agreement. Consequently, any alleged breach of that provision of the settlement agreement cannot sustain the verdicts for tortious interference. The trial court erred in failing to grant Eichelkraut’s motion for j.n.o.v. as to any tortious interference predicated upon her failure to return the litigation documents.

(b) Disparaging Letters. Eichelkraut’s letters to the federal judge and to the Ethics Committee of the Georgia Society of Certified Public Accountants were dated September 18, 1995, and the letter to the business editor of the Atlanta newspaper was dated October 12, 1995. Camp’s evidence shows that the business relationships allegedly interfered with are (1) those pre-existing relations with sureties Safeco and Continental, and (2) those desired relations with other fidelity insurers.

As to his financial damages, Camp testified that, after one letter was sent to the federal judge, lawyers stopped referring fidelity bond claims to him. But it is uncontradicted that when Eichelkraut suggested they pursue additional bankruptcy work, Camp “said there wasn’t enough money in bankruptcy trustee work.” According to Camp, he was unable to obtain replacement fidelity business because of the damage to his professional reputation. In 1994, Camp’s businesses had combined revenues exceeding $5 million, whereas in 1998 he had essentially zero earnings from fidelity business. Revenue growth had averaged 50 percent annually from 1990 to 1995.

(i) Existing Relationships. The only evidence from fidelity insurers with existing relationships with Camp and his companies came from Safeco representative Gregory Lee Sears, the director of internal auditing since 1989. Safeco first learned of possible double billing and other irregularities in May 1995 through a telephone call from Douglasville Police Chief Whisenant to Safeco’s home office Surety Department. Safeco saw the disputed litigation documents through Nicholson or his attorney via a subpoena, but never received any of Eichelkraut’s anonymous letters. After an interview in July 1995 where Camp tried to rationalize certain documented double billings and admitted giving lucrative favors to Don Reedy (the Safeco claims representative who steered business to Camp), Sears concluded in August 1995 that Safeco should discontinue business with Camp or any of his organizations because of a loss of confidence in him, expressly disavowing mere rumor or adverse publicity as the cause of that decision. Thus, the direct evidence is that Safeco’s decision to terminate business relationships with Camp or any of his corporations preceded Eichelkraut’s composition and posting of the three letters (none of which was received by Safeco). Plaintiffs adduced no direct evidence from Continental about its decision not to do further business with Camp. Nevertheless, Camp admitted that, after Continental conducted its own investigation of Camp’s enterprises in June 1995 at his offices, he received no further business from that insurer.

Circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict, when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed.

The circumstantial evidence that Camp got no more business from Safeco or Continental after Eichelkraut sent her letters (but also after the insurers’ own investigations) does not demand the conclusion she induced or caused that result (no matter her intent) and so amounts only to an inconclusive inference that cannot overcome the direct evidence that the decisions of Safeco and Continental were reached independently of Eichelkraut’s actions. Viewed in the light most favorable to plaintiffs, who obtained the verdict, the evidence does not support a claim against Eichelkraut for tortious interference with existing business relationships, via her letters. Consequently, the trial court further erred in denying Eichelkraut’s motion for directed verdict as to this portion of the claim.

(ii) Prospective Relationships. In order to establish a cause of action for interference with prospective business relations, the plaintiff must establish that absent the interference, those relations were reasonably likely to develop in fact. And there can be no recovery in tort for an injury resulting from acts or omissions that violate no law. Truthful statements about nonconfidential matters will not support a claim for tortious interference based on defamation, for they are privileged.

Eichelkraut testified that her letters were truthful. Each letter correctly referred to the circumstance that Camp was under investigation by the Douglas County District Attorney for possible fraud. The letter to the federal judge overseeing Camp as a fidelity bond claims administrator in bankruptcy queried: “Before this information is given to the press, shouldn’t you reconsider your choice of Trustee?” but does not mention plaintiffs Camp & Associates, P.C. or International Surety Consultants. The letter to the Georgia Society of Certified Public Accountants recites that Camp’s daughter Dana Pilgrim joined her father in a new practice and alleges that the letterhead for the new firm lists cities where the firm is not licensed and maintains no offices. This letter does not refer to plaintiffs Camp & Associates, P.C. or International Surety Consultants. The letter to the business editor of the Atlanta newspaper notes that, in addition to the district attorney’s investigation, “[flormer clients, Safeco Insurance Company and . . . CNA [Continental] Insurance are also investigating Mr. Camp for double billings, overbillings, and fraudulent billings.” The only reference to any identifiable Camp enterprise is the truthful observation that “Mr. Camp is no longer in the firm of Camp, Nicholson, and Eichelkraut. Nicholson and Eichelkraut filed a lawsuit against Mr. Camp and left the firm.”

In short, we find no untruthful or defamatory reference to either Camp & Associates, P.C. or International Surety Consultants in any of Eichelkraut’s ill-considered letters. And plaintiffs adduced no evidence from any particular fidelity insurer that it likely would have retained plaintiffs but for Eichelkraut’s letters. The fact that each corporation had reduced earnings is directly attributable to the independent decisions of Safeco and Continental not to renew or extend existing business relations, due to a loss of confidence in Camp and his affiliates. Consequently, plaintiffs failed, in our view, to support this verdict with any competent evidence that a business relationship was likely to develop in fact, or that any such likely prospective relationship was wrongfully spoiled by Eichelkraut’s letters. An award for tortious interference with prospective business relations cannot be based on speculation that a relationship would develop. The trial court erred in denying Eichelkraut’s motion for directed verdict as to any claim for tortious interference.

4. Contractual Damages. It is the law of the case that Eichelkraut and Nicholson jointly breached the settlement agreement by writing, editing, and sending the anonymous letters. Nevertheless, Eichelkraut moved for a directed verdict on this contract claim against her, arguing Camp failed to prove his damages (lost profits) with sufficient specificity. The denial of that motion is enumerated as error.

As an alternative measure of damages, plaintiffs sought to recover the lost value of the stock they purchased from Nicholson and Eichelkraut, which they put at the purchase price because the stock was now worthless. “Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.”

The jury’s verdict of $145,000 against Eichelkraut is the amount Camp and the plaintiff corporations agreed to pay her for her interests in the two companies. The contract verdicts against Nicholson and Eichelkraut clearly evince the jury’s determination to deprive them of the benefit of their settlement bargain, after the anonymous letter campaign rendered the shares purchased in that agreement worthless. Regardless of any alleged failure of proof regarding lost profits, the jury’s verdict in contract (resembling an offset) was contemplated by the plaintiffs’ demands and authorized in law because “[d]amages are given as compensation for the injury sustained as a result of the breach of a contract.” The policy of the law is to place the injured party, as near as may be, in the situation he would have occupied absent the breach. The trial court correctly denied Eichelkraut’s motion for directed verdict as to this contract claim.

5. Breach of Settlement Contract. Eichelkraut contends the trial court erred in directing a verdict that she breached the so-called “return-of property” provision in the settlement agreement by failing to tender back all original records. The denial of her motion for j.n.o.v. also is enumerated. The record reflects a general verdict for contractual damages, which does not differentiate between alternative theories of contractual liability. “It is the practice, and legally permissible, to allege in one petition, in different counts, the breach of the same contract in different ways. In such a situation a general verdict is sustainable if any count is supported by evidence.”

In our view, any error in directing the verdict as to this separate contractual claim is clearly harmless or immaterial because of the authorized verdict awarding Camp contractual damages for Eichelkraut’s writing the anonymous letters. Similarly, the failure to direct a verdict in Eichelkraut’s favor on this claim would not vitiate that authorized verdict. Consequently, this enumeration is moot.

6. Eichelkraut has failed to demonstrate how the trial court abused its very broad discretion in refusing (thus far) to release settlement payments Camp paid into the registry of the court during the pendency of the case, including her appeal. Her fourth enumeration is without merit.

Case No. A00A1748

7. Nondisparagement and Confidentiality, Camp eschewed any claim of damages for Nicholson’s appearance under subpoena before the grand jury, but argued that, because there purportedly is no law compelling Nicholson to voluntarily speak with the authorities, Nicholson therefore breached the settlement agreement by his other so-called noncompulsory meetings with the authorities, including the fraud investigators for Safeco and Continental. The trial court’s direction of the verdict that this constituted a breach of the settlement agreement is enumerated as error. While it is also the law of the case that sending the anonymous letters was not privileged under OCGA § 51-5-7 in a contract action, the question remains whether the public policy of Georgia will enforce the contractual confidentiality and nondisparagement provisions under these circumstances.

At common law it was a penal offense for any citizen having knowledge of a crime to fail to report it and assist in producing the evidence. Reporting criminal behavior is expected and even demanded of the ordinary citizen, who should not be discouraged from reporting what he knows to the authorities and from lending his aid to secure evidence of a crime. Indeed, in Georgia, it is the duty of one having such information to report it to those in authority.

And in Barger v. Garden Way, this Court held:
The public policy of Georgia does not permit parties to contract privately for the confidentiality of documents or testimony, and thereby foreclose others from obtaining, in the course of litigation, materials that are relevant to their efforts to vindicate a legal position. To hold otherwise would clearly not serve the truth-seeking function of discovery in civil litigation.

If the public policy of Georgia does not permit parties to contract to keep embarrassing-but-discoverable materials secret, then with greater force, that public policy does not permit parties to enter into an enforceable agreement to keep arguably criminal matters secret in the face of an official investigation.

Here, it is undisputed that Chief Whisenant summoned Nicholson to his office for questioning both before and after Nicholson’s grand jury appearance. In our view, Nicholson’s act of repeating or confirming his suspicions (and the factual bases therefor) to Safeco and Continental fraud investigators, in the presence of and at the behest of Chief Whisenant during an official police investigation, did not amount to an actionable breach of the confidentiality and nondisparagement provisions. Such permission to cooperate with an official investigation or inquiry is expressly contemplated in the provision on the confidentiality of financial documents. We hold that such permission to cooperate with investigative authorities also is an implied term of both the nondisparagement provision and the confidentiality provision. Such an interpretation gives full effect to the legitimate purposes of the confidentiality and nondisparagement provisions without running afoul of the public policies of Georgia. The trial court erred in directing a verdict that Nicholson breached the settlement agreement by cooperating with the police and the fraud investigators for the sureties.

8. For the reasons discussed in Division 4, supra, the trial court did not err in denying Nicholson’s motion for directed verdict as to the award of $175,000 in contract damages against Nicholson for his part in Eichelkraut’s poison pen campaign.

Judgments affirmed in part and reversed in part in Case Nos. A00A1747 and A00A1748.

Judgment reversed in Case No. A00A1746.

Decided September 21, 2000

Reconsideration denied October 6, 2000

Bondurant, Mixson & Elmore, H. Lamar Mixson, Jill A. Pryor, Lynn M. Adam, for Camp.

Patricia Eichelkraut, pro se.

Hartley, Rowe & Fowler, Joseph H. Fowler, Christopher A. Bennett, Wasson, Sours & Harris, Gene E. Massafra, for Nicholson.

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

        Eichelkraut v. Camp, 236 Ga. App. 721, 723 (1) (513 SE2d 267) (1999).

       Id. at 724 (1).

       The jury found against Eichelkraut and Nicholson on their counterclaims for breach of contract, found in their favor on Camp’s claims of inceptive fraud, absolved Nicholson and his professional corporation of Camp’s claim of tortious interference with business relations, and declined to award any punitive damages.

        Renden, Inc. v. Liberty Real Estate &c., 213 Ga. App. 333, 334 (2) (444 SE2d 814) (1994).

       Id.

       OCGA § 9-11-50 (a).

        North Ga. &c. Co. v. L & L Constr., 235 Ga. App. 68, 69 (1) (508 SE2d 722) (1998).

        Redwine v. Windham, 237 Ga. App. 149, 151 (513 SE2d 13) (1999).

       “Such wrongful means generally involve predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, abusive civil suits, and unwarranted criminal prosecutions.” American Buildings Co. v. Pascoe Building Systems, 260 Ga. 346, 349 (2) (392 SE2d 860) (1990). Accord Tom’s Amusement Co. v. Total Vending Svcs., 243 Ga. App. 294, 296 (2) (a) (533 SE2d 413) (2000) (physical precedent only).

        Renden, Inc. v. Liberty Real Estate &c., supra, 213 Ga. App. at 335 (2) (b).

       See id. at 335 (1) (plaintiff must demonstrate that absent the alleged interference, business relations were in fact reasonably likely to develop).

       Eichelkraut joined in motions for directed verdict, including the argument that plaintiffs failed to make out a prima facie case of tortious interference. Consequently, plaintiffs’ contention that this issue is not preserved for appellate review is without merit.

       The jury simultaneously found for Eichelkraut and against Camp individually on his own claim for tortious interference.

       This argument overlooks the significance of the grand jury subpoena, issued as a result of Green’s initial statements to investigators and Nicholson’s reluctance to breach the settlement agreement on his own initiative.

        Morgan v. Colt Co., 34 Ga. App. 630, 631 (3) (130 SE 600) (1925), interpreting former Civil Code (1910) § 4318, now OCGA § 13-4-20. See generally Henderson Warehouse Co. v. Brand, 105 Ga. 217, 222 (2) (31 SE 551) (1898).

       See Jenkins v. Gen. Hosp. of Humana, 196 Ga. App. 150, 151 (395 SE2d 396) (1990) (summary judgment against claim of tortious interference with business relations properly granted where plaintiff was “unable to name a single patient he has lost or failed to acquire due to the actions of defendants”). Accord Lively v. McDaniel, 240 Ga. App. 132, 135 (3) (522 SE2d 711) (1999) (where the undisputed evidence showed that defendant’s conduct did not induce anyone to refuse or discontinue a business relationship with plaintiff, trial court erred in denying summary judgment).

       (Citations omitted.) Myers v. Phillips, 197 Ga. 536, 542 (4) (29 SE2d 700) (1944).

       See, e.g., Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 781 (257 SE2d 186) (1979).

       We express no opinion whether Eichelkraut could be considered a stranger to the underlying relationships, as is required in tortious interference with business relations claims. Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 609 (2), fn. 2 (503 SE2d 278) (1998).

        Renden, Inc., supra, 213 Ga. App. at 334-335 (2). Accord Perry & Co. v. New South Ins. Brokers of Ga., 182 Ga. App. 84, 89 (4) (354 SE2d 852) (1987).

        Irwin v. Torbert, 204 Ga. 111, 123 (5) (49 SE2d 70) (1948).

        Singleton v. Itson, 192 Ga. App. 78, 80 (383 SE2d 598) (1989) (truthful statements and critical personal opinions made by one employee about another are not wrongful or unlawful and so trial court correctly directed verdict on claim for tortious interference with contractual relations). And while fair competition is always lawful, the use of truthful confidential or proprietary information to attract away all or a large portion of a business’s trained personnel can support a claim of tortious interference. Architectural Mfg. Co. of America v. Airotec, Inc., 119 Ga. App. 245, 251 (2) (166 SE2d 744) (1969).

       The jury found that Eichelkraut did not tortiously interfere with Pilgrim’s business relations.

        Jenkins v. Gen. Hosp. of Humana, supra, 196 Ga. App. at 151; Lively v. McDaniel, supra, 240 Ga. App. at 135 (3).

       OCGA § 9-11-60 (h).

       OCGA § 13-6-2.

       OCGA § 13-6-1.

        Albany Phosphate Co. v. Hugger Bros., 4 Ga. App. 771, 776 (3) (62 SE 533) (1908).

       (Citations omitted.) Williams v. Smith, 71 Ga. App. 632, 637 (1) (b) (31 SE2d 873) (1944).

       OCGA § 5-6-48 (b) (3).

       See Courtesy Leasing v. Christian, 266 Ga. 187 (465 SE2d 443) (1996).

       Non-Disparagement — The parties agree that henceforth they shall cease and refrain from making any disparaging or defamatory remarks or comments regarding one another, expressly or by implication, including but not limited to any parties’ personal or business dealings and reputations.

       “It is the intent of the parties that the terms of this agreement be maintained as strictly confidential.”

        Eichelkraut v. Camp, supra, 236 Ga. App. at 724 (1). Compare Hardaway v. Sherman Enterprises, 133 Ga. App. 181 (210 SE2d 363) (1974) (“Statements made in good faith pursuant to investigation by police or other officers authorized to investigate crime or criminal activity are made in the performance of a public duty and are privileged. [Cit.]”).

        Williams v. State, 126 Ga. App. 302 (1) (190 SE2d 807) (1972).

       Id. at 303 (1).

        Hardaway v. Sherman Enterprises, supra, 133 Ga. App. 181.

       231 Ga. App. 723 (499 SE2d 737) (1998).

       (Citations and punctuation omitted.) Id. at 726 (1) (c).

       Id. at 726 (1) (d) (provision in confidential settlement agreement that party may nevertheless testify or otherwise comply with a subpoena, court order, or other applicable law is an implicit term in such agreement).

       Id.