author: Johnson, Presiding Judge. Ruffin, Judge,

text:
    A01A0034.
    WALLS v. KIM.
    (549 SE2d 797)
   Johnson, Presiding Judge.

In our judicial system, the only purpose for voir dire is to assure that jurors are impartial — that they are able to consider the case solely on its merits without any bias or prior inclination. A party in a civil case therefore has good cause to challenge a juror who has expressed either an opinion that the opposing party ought to prevail or a desire that the other party will succeed. Upon such a challenge, the trial court must consider the evidence and then exercise its significant discretion to retain or dismiss the juror.

In too many cases, trial courts confronted with clearly biased and partial jurors use their significant discretion to “rehabilitate” these jurors by asking a version of this loaded question: After you hear the evidence and my charge on the law, and considering the oath you take as jurors, can you set aside your preconceptions and decide this case solely on the evidence and the law? Not so remarkably, jurors confronted with this question from the bench almost inevitably say, “yes.” Such biased jurors likely even believe that they can set aside their preconceptions and inclinations — certainly every reasonable person wants to believe he or she is capable of doing so. Once jurors affirmatively answer the “rehabilitation” question, judges usually decide to retain these purportedly rehabilitated jurors, and on appeal such decisions are often found not to be abuses of discretion.

Many judges on this court have served as trial judges and wholeheartedly agree with the principle that trial judges must have significant discretion in deciding whether to excuse jurors for cause. Just as wholeheartedly, we disagree with the way that the “rehabilitation” question has become something of a talisman relied upon by trial and appellate judges to justify retaining biased jurors. Especially when the better practice is for judges simply to use their discretion to remove such partial jurors, even when the question of a particular juror’s impartiality is a very close call.

A trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate, biased jurors because, in reality, the judge is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury. While the parties to litigation operate under the guise of selecting an impartial jury, the truth is that having a jury which is truly fair and impartial is not their primary desire. Instead, their goal is to select a jury which, because of background or experience or whatever other reason, is inclined to favor their particular side of the case. The trial judge, in seeking to balance the parties’ competing interests, must be guided not only by the need for an impartial jury, but also by the principle that no party to any case has a right to have any particular person on their jury.

The case before us is an example of how a trial court, however unintentionally, abuses its discretion in refusing to dismiss a juror who is biased in favor of one party. Patricia Walls, who was 45 years old, went to the emergency room of Phoebe Putney Memorial Hospital in Albany because of a cramp in her left calf and shortness of breath. She was seen by Dr. Tae Won Kim, who ordered that she undergo a chest x-ray, a doppler of the left leg, and blood work. After undergoing those examinations, she returned home. A week later, Walls died of a pulmonary thromboembolism.

Her husband, Ed Walls, brought the instant wrongful death action against Dr. Kim. The doctor answered the complaint, and the case proceeded to trial. During voir dire, one of the jurors stated that she is a nurse who works in emergency rooms, that she knows Dr. Kim, and that she has worked with him. Because of that relationship, she said that she probably hoped that the case would come out in favor of Dr. Kim, and she acknowledged that Ed Walls did not start the case on an even footing with the doctor.

The judge then asked the “rehabilitation” question, to which the juror replied that she would set aside her preconceived notions and decide the case on the law and evidence. Upon further questioning by Walls’ counsel, the juror reiterated that Walls did not start the case on an even footing with Dr. Kim because she knows and has worked with the doctor, but she does not know Walls. However, she then contradicted herself by claiming that she did not favor one side over the other. When Walls’ counsel tried to ask her to explain the contradiction, the judge cut him off and ordered him to move on to another question. Thereafter, the judge refused to disqualify the juror for cause.

A juror is objectionable when it is shown that her finding in the case may be affected by personal interest in the result; and the probability as to whether that interest will produce bias is determined by ordinary and general human experience. In the current case, the juror had a personal interest in the result due to her professional relationship with Dr. Kim; and based on ordinary and general human experience, it is more than probable that her interest produced bias.

If this nurse served on the jury, she would have only two choices — either a verdict for Dr. Kim or a verdict against him. After that verdict, she would have to go back to the emergency room in the hospital where she and Dr. Kim both have worked, face the doctor, work with other physicians and nurses on that hospital staff, many of whom undoubtedly know Dr. Kim, and deal with hospital administrators who had employed them both. She may even work again with Dr. Kim in circumstances where emergency treatment is performed on another patient. Common sense and human experience tell us that anyone in this nurse’s position would be reluctant to return a verdict against the doctor, no matter how great her belief that she could set aside her personal feelings. And she admitted as much to the court, saying that she hoped the case would work out in favor of the doctor and that to her Walls did not start the case on equal footing with the doctor.

The mere fact that she also told the court that she could decide the case on the law and facts does not eliminate the reality of her circumstances. She still hoped the case would work out for Dr. Kim, and she still had to go back to work after the case. She was, understandably, a biased juror who should not have remained in the jury pool. Neither the juror nor the parties should be put into such a situation. In refusing to dismiss her for cause, the trial judge abused his discretion. Therefore, the judgment must be reversed and the case remanded for a new trial.

Judgment reversed.

Pope, P. J., Smith, P. J., Barnes, Ellington and Phipps, JJ, concur. Ruffin, J., dissents.

Ruffin, Judge,

dissenting.

I concur with almost all of the majority opinion, except for the result. Were it not for Cohen v. Baxter, I would concur fully. However, pretermitting what I, as a former trial judge, may believe to be “the better practice,” as an appellate judge, I must follow different rules. One such rule is that of stare decisis. Indeed, this principle serves as the bedrock of our common law system. I recognize that stare decisis is commendable where appropriate and that it serves a useful purpose in our jurisprudence. Moreover, I recognize that we should not become prisoners of precedent and that stare decisis should be a guide, not a goal. However, while we may be free to jettison stare decisis in our own precedent, we do not enjoy the luxury of such license with precedent established by our Supreme Court. Here, I firmly believe that the majority has ignored controlling Supreme Court precedent in deciding this case. Accordingly, I must respectfully dissent.

In order to understand why this case is controlled by Supreme Court precedent, one first must look to what actually transpired during voir dire. After one of the jurors informed the court that she worked as a nurse at the same hospital where Dr. Kim worked, the following exchange then occurred between Walls’ attorney and the prospective juror:

Q: And you know Dr. Kim; is that correct?
A: Yes, sir.
Q: Have you, in your work at [the hospital], had occasion to work in the emergency center with the doctors?
A: Yes, sir.
Q: Given that experience with the emergency center doctors at [the hospital] and the fact that this is a case arising out of an emergency center visit by Patricia Walls, the deceased, without knowing anything about the case, because of your working at [the hospital] and knowing Dr. Kim, as you sit here now knowing nothing about the case, would you be leaning to [the hospital] side or the Dr. Kim side simply because of your work experience?

At this point, the defense attorney objected to the question as the hospital was not a party to the case, and the plaintiff’s attorney rephrased the question.

Q: Given your relationship with Dr. Kim, would you, knowing nothing about the case, hope that things came out Dr. Kim’s way?
A: Probably.
Q: So, as you sit here now, representing [sic] the plaintiff, who you don’t know, against a doctor that you do know, we don’t start off with the scales equally balanced because of your professional relationship with Dr. Kim. Is that a fair statement?
A: That’s a fair statement.

Walls’ attorney then moved to strike the juror for cause. Prior to ruling on the motion, the trial court asked the juror whether she would be able to put aside her personal feelings and base her decision upon the evidence as presented and the law as given. The juror responded affirmatively, and the plaintiff’s attorney continued asking questions.

Q: [I]s it fair to say that representing the plaintiff, which I do, you have already candidly stated we don’t start off even with the defendant; is that correct?
A: Yes, sir.
Q: I’ve got to come up to even and then go above that to convince you; correct?
A: I don’t think so.
Q: Well, you said we don’t start off even.
A: It’s only because I know Dr. Kim; I mean, I’ve worked with him, met him. I’ve never met the defendant [sic].
Q: But as you sit here today, you favor one side over the other without having heard anything about the evidence; is that correct?
A: No, sir.

At this point, the trial court instructed the plaintiff’s attorney to “proceed with another question, and the attorney began asking questions of another juror.” The trial court declined to excuse the nurse for cause, and this appeal ensued.

The law presumes that potential jurors are both fair and impartial, and Walls bears the burden of rebutting that presumption. “A juror is not disqualified if he or she can lay aside whatever opinions or impressions he or she may have had and decide the case based upon the evidence presented in court.” It is axiomatic that the decision of whether to strike a juror for cause lies within the sound discretion of the trial court. On appeal, we should not disturb that discretion unless this Court finds that it has been manifestly abused. Here, the majority finds manifest abuse of discretion in the trial court’s failure to excuse a juror, which it characterizes as “clearly biased and partial.”

Initially, I note that the record does not bear out this characterization of the juror, who unequivocally stated that she would decide the case solely based upon the evidence and the law as given by the judge. Evidently, the majority is troubled by the fact that the juror — a nurse — worked in the same hospital as the defendant — a doctor. According to the majority, the juror “had a personal interest in the result [of the case] due to her professional relationship with the defendant doctor; and based on ordinary and general human experience, it is more than probable that her interest produced bias.” Thus, having summarily dismissed the juror’s sworn statement that she could decide the case based upon the evidence, the majority advocates creating a rule excluding all such jurors as “understandably” biased.

While it is almost certainly true that many potential jurors enter the jury pool with certain biases, that does not justify creating per se rules excluding broad classes of jurors, such as co-workers. In Cohen v. Baxter, the Supreme Court addressed this very issue in the context of potential jurors who were patients of a doctor who was the defendant. The Supreme Court concluded that

the reality [is] that the trial judge is in the best position to judge the credibility of the juror and, therefore, trial courts have traditionally had significant discretion to retain or dismiss a juror. The fact that the doctor-patient relationship exists between a juror and a defendant does not justify removing this discretion from the trial courts. Trial courts are often faced with jurors who have close relationships with parties in both civil and criminal cases. We have confidence that trial courts can ascertain whether a juror is partial because of a doctor-patient relationship with a defendant just as well as the trial court can determine bias arising from other sources. A per se rule cuts too broadly and is inconsistent with the traditional discretion given trial courts in this area. Furthermore, there are various close and confidential relationships that a juror may have with a party and the establishment of a per se rule to the doctor-patient relationship will open the door to the expansion of the per se rule to these other numerous categories. Finally, a per se rule may render it extremely difficult to obtain a full panel for a medical malpractice trial in some rural counties.

Decided June 4, 2001

Reconsideration denied June 29, 2001

Del Percilla, Jr., Billy C. Mathis, Jr., Thomas W. Malone, for appellant.

McCall, Finney & Phillips, W. Earl McCall, Paul G. Phillips, for appellee.

Butler, Wooten, Scherffius, Fryhofer, Daugherty & Sullivan, James E. Butler, Jr., Joel O. Wooten, Jr., Conley, Sacks & Griggs, Richard A. Griggs, amici curiae.

The same reasoning applies here. Indeed, in terms of creating a per se rule, the argument in Cohen was far more compelling. Patients place their very lives in the hands of their doctors. Given this tremendous degree of trust, I certainly understand why patients of defendant doctors might be considered “understandably biased.” Here, however, the potential juror and defendant doctor merely worked at the same facility. There is no suggestion that the prospective juror was a subordinate of the doctor. Where a prospective juror is a mere co-worker, I fail to see how the majority can justify creating a per se rule excluding all such jurors. More importantly, I believe the Supreme Court’s opinion in Cohen bars this Court from creating such a rule. Where, as here, we are guided by clear Supreme Court precedent, we are bound to follow it, irrespective of whether we agree with that Court. Accordingly, I dissent.

        Daniel v. Bi-Lo, 178 Ga. App. 849, 851 (1) (344 SE2d 707) (1986).

       OCGA § 15-12-134.

        Cohen v. Baxter, 267 Ga. 422, 423 (1) (479 SE2d 746) (1997).

       See id.; Switzer v. Gorman, 235 Ga. App. 794, 795 (1) (510 SE2d 581) (1998).

       See Hill v. Hosp. Auth. of Clarke County, 137 Ga. App. 633, 636 (224 SE2d 739) (1976).

       Daniel, supra at 850 (1).

       267 Ga. 422 (479 SE2d 746) (1997).

       Indeed, although the majority cites Cohen v. Baxter for general principles of law, it does not discuss how this case differs from Cohen.

       The portion of the transcript provided does not contain an actual ruling on Walls’ motion, but both parties concede that the trial court did not strike the juror for cause.

       See Stewart v. Stewart, 240 Ga. App. 573, 577 (3) (524 SE2d 267) (1999).

       (Punctuation omitted.) Hardy v. Tanner Med. Center, 231 Ga. App. 254, 256 (4) (499 SE2d 121) (1998).

       See Stewart, supra; Smith v. Folger, 237 Ga. App. 888, 889 (2) (517 SE2d 360) (1999); Hardy, supra at 256-257 (4), (5); Luke v. Suber, 217 Ga. App. 84, 85-86 (1) (456 SE2d 598) (1995).

       See Stewart, supra.

         Supra at 423 (1).

       (Footnote omitted.) Id.

       See Page v. Janko, 200 Ga. App. 547, 548 (1) (409 SE2d 48) (1991) (“ ‘This is not a case wherein the prospective (juror was an employee) of appellant or any other party to the case.’ ”) (emphasis in original).

       See Eady v. Capitol Indem. Corp., 232 Ga. App. 711, 714 (502 SE2d 514) (1998).


source: Caselaw Access Project

license: Public Domain

text:
    A01A0179.
    THE STATE v. TODD.
    (549 SE2d 821)
   Johnson, Presiding Judge.

Michael Todd was indicted for rape, two counts of attempted aggravated sodomy, and false imprisonment of his wife. Todd moved the trial court to suppress his videotaped statement on the ground that police officers had improperly given him the hope of benefit and thereby induced him into giving the statement. The trial court granted the motion. The state appeals from the trial court’s suppression order. Because the trial court erred in concluding that the officers had induced Todd’s statement by holding out some hope of benefit, we reverse the trial court’s suppression order.

Police officers arrested Todd at his and his wife’s house, where Detective J. L. Bright informed Todd of his Miranda rights. A uniformed officer took Todd to police headquarters, while Detective Bright and Investigator Michael Bean remained at the house. Todd’s wife joined them there and consented to a search of the house.

She took Bright into the bedroom where the rape allegedly had occurred and showed him the towel that she said she had used to wipe Todd’s semen off her face. She pointed out clothing which she said Todd had ripped from her during the attack. She also located a roll of film that contained photographs of her nude and crying, which she said Todd had taken immediately after the rape.

In the meantime, the uniformed officer arrived with Todd at police headquarters and placed him in an interview room which contained a videocamera. Eventually, Detective Bright and Investigator Bean entered the room. Bright removed Todd’s handcuffs and told him that the Miranda rights read to him at the house still applied.

Todd asked if he was under arrest and going to jail no matter what happened. Detective Bright told Todd that he was under arrest and was going to jail. Todd then asked if there was anything he could say or do. And Bright replied: “I won’t say that. A judge has issued a warrant, but if after we talk to you, we believe that probable cause doesn’t exist, we are certainly not going to keep you arrested.” Todd then told Bright and Bean what occurred between him and his wife.

Based on this conversation, the trial court suppressed Todd’s videotaped statement. The trial court found that Detective Bright’s replies to Todd’s questions offered Todd the hope that he would be released if he discussed the matter with the police. In reviewing the trial court’s decision to suppress the statement, we must accept the court’s findings of fact unless they are clearly erroneous, but the court’s application of the law to those facts is subject to a de novo review. Here, the trial court’s application of the law to the facts was erroneous.

To be admissible, a statement must be made voluntarily, without being induced by the slightest hope of benefit. The “slightest hope of benefit” means the hope of a lighter sentence. In the instant case, the police officers did not provide Todd with any hope that he would receive a lighter sentence by speaking to them. In fact, there was no discussion of the length of any sentence at all.

Rather, Detective Bright’s responses to Todd’s unsolicited questions were mere truisms. Bright first correctly told Todd that he was under arrest. And then he simply made a correct statement of the law, i.e., if there was no probable cause, then the officers would have no basis for keeping Todd under arrest. This sort of mere truism, mere explanations of Todd’s arrest and of the law, does not constitute an improper offer of some hope of benefit.

Because the officers did not act improperly — did not induce Todd into giving his statement — the trial court’s ruling to the contrary is erroneous as a matter of law. The trial court’s order suppressing Todd’s statement is thus reversed.

Judgment reversed.

Pope, P. J., Smith, P. J., Barnes and Ellington, JJ., concur. Ruffin and Phipps, JJ., dissent.

Ruffin, Judge,

dissenting.

If I were sitting as the trial judge in this case, I may have concluded that the officers did not induce Todd’s confession with a slight hope of benefit. As an appellate court judge, however, I must defer to the trial court’s findings unless they are clearly erroneous. This is because the trial court judge had the opportunity to observe, firsthand, the testimony of officers Bright and Bean, to judge their credibility, to weigh the evidence based on what she observed, and to determine, based on a totality of the circumstances, whether the state met its burden of proving by a preponderance of the evidence that Todd’s confession was voluntary and made without even the slightest hope of benefit. Paying proper deference to the trial court’s findings in this case, I believe they were not clearly erroneous and therefore dissent from the majority opinion.

I cannot ignore the circumstances under which Todd was “informed” of his Miranda rights. At 3:30 a.m., Bright and Bean, armed with the warrant and accompanied by additional uniformed officers, went to Todd’s house to arrest him. According to Bright, Todd “came to the door typical of someone who had been awakened from their bed at 3:30 in the morning.” The investigators immediately arrested Todd, who had in fact been asleep, and handcuffed him, and while he was getting dressed, Detective Bright read the Miranda rights to Todd. Under these circumstances, it is certainly questionable whether Todd, who was likely sleepyheaded and overwhelmed by the unexpected show of force, fully comprehended the constitutional rights being read to him as he dressed to go to jail.

I also cannot ignore the circumstances immediately preceding Todd’s confession. When the uniformed officer arrived with Todd at police headquarters, he placed Todd in an interview room which was approximately six by eight feet and contained a table and three chairs. At some point, Bright arrived and joined Todd. Although a videocamera was recording their encounter, Todd was never informed about the camera or that his statements were being recorded. The videotape reveals that when Detective Bright entered the room, he removed Todd’s handcuffs and stated: “Mike, you remember when I read you your rights at the house?” Todd responded, “yes,” and Bright told him, “all that stuff still applies.” After Bean joined Bright and Todd in the room, the following discussion took place between Bright and Todd. Todd asked: “so, pretty much I’m arrested; I’m going to jail no matter what,” and Bright interrupted stating, “yeah, good point. Yes you are.” Todd then began asking: “there’s nothing I can say or do that,” and Bright again interrupted stating, “well, I won’t say that. A judge has issued a warrant. If after we talk to you we believe that probable cause doesn’t exist, we’re certainly not going to keep you arrested.” Immediately thereafter, Todd told Bright and Bean what occurred.

Todd was obviously frightened by his predicament. After being arrested in the middle of the night, he found himself sitting in a small room at police headquarters with two of the officers who conducted the arrest. As found by the trial court, Todd clearly wanted to know what he could do to be released. Bright essentially responded that if Todd confessed to what actually happened, and based on that confession Bright believed that no probable cause existed, then Todd would “certainly” be released following the statement. Bright’s response was not a mere truism. Nothing suggests that Bright, as he led Todd to believe, had the ultimate authority to decide if Todd would be released based on the results of the interrogation, and even Bright testified that he did not have the power to recall the warrant.

Moreover, it appears that Todd was given the impression that his statement was being used by Bright for the sole purpose of determining whether to release him and that the decision would be based only on his statement. Todd had no idea that his statement was actually being recorded for use as additional proof of his alleged guilt and that Bright already had other, substantial evidence to establish probable cause: Todd’s semen on a towel allegedly used during the rape; clothes Todd allegedly ripped from the victim’s body during the rape; and nude photographs of the victim crying, allegedly taken by Todd immediately after the rape. In light of this evidence, the trial judge could have found that Bright had absolutely no intention of attempting to recall the warrant based on what Todd told him and that Bright’s encouragement was a mere ruse to obtain Todd’s confession.

Decided June 5, 2001

Reconsideration denied June 29, 2001

Finally, it cannot be gainsaid that, as a matter of law, Bright’s statement did not offer the slightest hope of benefit. Although the majority is correct that “[a] reward of lighter punishment is generally the ‘hope of benefit’ to which OCGA § 24-3-50 refers,” our appellate courts have construed this provision to include the hope of reduced bail, the hope of not being charged with a certain crime, and the hope of being set free. The hope of being set free is precisely how the trial court, which heard the evidence, characterized Bright’s inducement in this case.

Again, although I may have reached a different conclusion than the trial court if I were sitting as the trier of fact, based on a totality of the circumstances, the trial court was authorized to find Bright’s statement that Todd’s confession could result in his release held “out at least some hope of reward by special consideration if [Todd] cooperate [d].” Accordingly, I believe that the trial court did not clearly err when it ruled that the State failed to prove by a preponderance of the evidence that Todd’s confession was made without the slightest hope of benefit. Accordingly, I would affirm the exclusion of Todd’s confession from evidence.

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

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

Scott A. Drake, for appellee.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        State v. Ray, 272 Ga. 450 (2) (531 SE2d 705) (2000).

       OCGA § 24-3-50.

        Ray, supra.

       See OCGA § 17-4-20.

       See Davis v. State, 245 Ga. App. 508, 509 (538 SE2d 159) (2000) (officer’s statement to defendant that he was in trouble was a mere truism, and statement regarding possible 20-year sentence simply informed defendant of potential legal consequences). See also Copeland v. State, 162 Ga. App. 398, 400 (3) (291 SE2d 560) (1982) (officer’s statement to defendant that his wife could also be charged with a crime was a mere truism).

        Gulley v. State, 271 Ga. 337, 339-340 (2) (519 SE2d 655) (1999).

       See id.

       See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       See State v. Ritter, 268 Ga. 108, 109 (1) (485 SE2d 492) (1997) (where trickery is used to convey the slightest hope of benefit, confession is inadmissible); Grades v. Boles, 398 F2d 409 (4th Cir. 1968) (confession suppressed where prosecutor gave hope that defendant would not be charged with certain crimes, but in fact had no intention of following through with promise).

        Ritter, supra at 109 (1).

       See Green v. State, 154 Ga. App. 295-296 (267 SE2d 898) (1980) (ruling that officer’s promise that he would set “bond as low as he could” constituted a hope of benefit); Hickox v. State, 138 Ga. App. 882, 884 (4) (227 SE2d 829) (1976) (officer’s statement that he would “see that [defendant’s] bond was lowered so he could get out of jail” constituted hope of benefit).

       See Ritter, supra at 110.

       See In the Interest of R. J. C., 210 Ga. App. 286 (435 SE2d 759) (1993).

        Askea v. State, 153 Ga. App. 849, 851 (3) (267 SE2d 279) (1980).

       See State v. Ray, 272 Ga. 450, 452 (2) (531 SE2d 705) (2000).


author: Phipps, Judge.

text:
    A01A0518.
    SMITH SERVICE OIL COMPANY, INC. v. PARKER.
    (549 SE2d 485)
   Phipps, Judge.

Smith Service Oil Company, Inc. sold a service station to Gregory Parker for $1,000,000. The real estate sales contract contained a clause providing that, at the closing, the parties would enter into a supply contract whereby Parker would purchase gasoline for the station from Smith for ten years at a cost of one cent per gallon above Smith’s cost. Approximately two months after the closing, Parker’s attorney sent a proposed supply contract to Smith, but it was never executed. Nonetheless, Parker purchased gasoline for the station from Smith for approximately 18 months. When Parker thereafter refused to accept any further deliveries of gasoline, Smith sued for breach of contract and, alternatively, unjust enrichment. The trial court granted Parker’s motion to dismiss the complaint, finding that no valid and enforceable supply contract existed.

Smith claims that the trial court erred by refusing to enforce the supply contract clause of the real estate sales contract. Smith also claims that the proposed supply contract was enforceable and was not subject to the Statute of Frauds because of the parties’ partial performance of the contract. We agree with the trial court that no enforceable supply contract exists and find that the proposed supply contract was subject to the Statute of Frauds. We further find that Smith has failed to state a claim for unjust enrichment. We therefore affirm the dismissal of Smith’s complaint.

“A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim. [Cit.]” Our review is de novo.

1. Smith argues that the supply contract clause of the real estate sales contract contained all of the essential elements of a contract and should be enforced.

“Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect.” The supply contract clause failed to include at least one essential element — the quantity of gasoline to be supplied. It could not be considered a valid “requirements” contract, which would require Parker to purchase all of his gasoline from Smith, because it does not provide that Parker will obtain his gasoline from Smith exclusively. We therefore agree with the trial court that the clause did not constitute an enforceable contract requiring Parker to purchase any amount of gasoline from Smith for the station.

2. Smith claims that the proposed supply contract is enforceable and requires Parker to purchase gasoline from Smith for ten years after the closing. The Statute of Frauds, however, requires that an agreement not to be performed within one year from when it was made “must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him.” The supply contract was not signed by either party or by anyone acting on behalf of either party.

Smith relies on an exception to the Statute of Frauds — part performance of the contract on one side, which has been accepted by the other. But merely supplying gasoline to Parker for an 18-month period would not constitute part performance. “The part performance required to obviate the Statute of Frauds must be substantial and essential to the contract and which results in a benefit to one party and a detriment to the other. [Cit.]” Smith does not claim that it was harmed by its performance or that Parker failed to pay for any of the gasoline supplied. Thus, the proposed supply contract was not binding on Parker, and Smith’s claim must fail.

3. Smith claims that the trial court erred by considering evidence outside the pleadings without converting Parker’s motion to dismiss into a motion for summary judgment. Smith fails to point to any evidence outside the pleadings that the trial court allegedly considered. The sales contract was attached as an exhibit to the complaint and was therefore part of that pleading for all purposes. Although the trial court stated that it had considered “evidence on record” and our review shows the record contained affidavits, a closer reading of the court’s order reveals that the decision rendered was based solely on consideration of the pleadings. Inasmuch as the pleadings revealed Parker was entitled to judgment, the trial court did not err in granting Parker’s motion.

Decided May 22, 2001

Reconsideration denied June 29, 2001

Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney III, for appellant.

Oliver, Maner & Gray, Marvin A. Fentress, Amy G. Becker, for appellee.

4. In its complaint, Smith asserted an alternative claim for unjust enrichment. Parker did not seek to dismiss the unjust enrichment claim specifically, and the trial court did not address it in its order granting the motion to dismiss. On appeal, Smith claims that it can submit evidence to support its allegation of unjust enrichment.

“The theory of unjust enrichment applies when there is no legal contract and when there has been a benefit conferred which would result in an unjust enrichment unless compensated. [Cits.]” Here, neither party was bound by an enforceable contract to supply or to purchase gasoline. Smith alleges damage to its business based on Parker’s actions in refusing further deliveries, but there is no allegation that Smith has conferred a benefit on Parker for which it has not been compensated. Because the complaint fails to state a claim for unjust enrichment, dismissal of that claim is the appropriate remedy.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Croxton v. MSC Holding, 227 Ga. App. 179, 180 (489 SE2d 77) (1997).

       Id.

       (Citations and punctuation omitted.) Hartrampf v. C & S Realty Investors, 157 Ga. App. 879, 881 (1) (278 SE2d 750) (1981).

       OCGA § 11-2-306.

        Billings Cottonseed v. Albany Oil Mill, 173 Ga. App. 825, 826 (1) (328 SE2d 426) (1985).

       OCGA § 13-5-30 (5).

       OCGA § 13-5-31 (2).

       (Punctuation omitted.) Metzgar v. Reserve Ins. Co., 149 Ga. App. 404 (254 SE2d 517) (1979).

       Compare Haehn v. Alheit, 212 Ga. App. 252, 254 (3) (441 SE2d 529) (1994) (risk of loss of collateral and risk of having to pay debts by virtue of executing guarantee constituted evidence that plaintiff suffered a detriment).

       OCGA § 9-11-10 (c).

        Bitterman v. Emory Univ., 175 Ga. App. 348, 349 (2) (333 SE2d 378) (1985).

       He sought to dismiss the entire complaint, but limited his argument to the breach of contract claim.

        Cochran v. Ogletree, 244 Ga. App. 537, 538-539 (1) (536 SE2d 194) (2000).

       See generally Gould v. Gould, 240 Ga. App. 481, 483 (1) (523 SE2d 106) (1999).


text:
    A01A0583.
    HOLMAN v. FERRELL et al.
    (550 SE2d 470)
   Phipps, Judge.

This wrongful death action arose from an automobile collision that occurred on the causeway between Brunswick and St. Simons Island when Scott Langford’s car crossed the centerline and hit a car driven by Richard Holman. Holman died as a result of the collision, as did Robert Coleman, a passenger in Langford’s car. Holman’s mother sued Langford and Laurie Pitts, the driver of a car that allegedly was racing with Langford’s car before the collision. She also sued Langford’s two passengers and Pitts’s two passengers, alleging that they were part of a joint enterprise of illegal activity that caused her son’s death. The trial court granted summary judgment to the passengers, and Ms. Holman appeals. Finding no basis to impute any negligence on the part of Langford and Pitts to their passengers, we affirm.

To win summary judgment, the moving party must show that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. We review a grant of summary judgment de novo.

The evidence showed that, on the night of October 4,1996, Lang-ford and two passengers were traveling westbound on the causeway in a Honda. Pitts and two passengers were traveling in the same direction in a Toyota. The occupants of the respective cars did not know each other and were not traveling to the same destination.

Langford testified that, shortly after he entered the causeway, Pitts passed him at a rapid rate of speed, and he sped up to pass her. He testified that the two cars “kept leaving each other” and explained that he was “just messing around.” Langford also testified that he was driving between 50 and 70 mph, that Pitts was keeping up with him, and that both cars changed lanes multiple times. The speed limit on the causeway for westbound traffic is 50 mph.

Pitts testified that after Langford passed her, she accelerated and tried to pull up alongside him because she thought his car’s occupants might be friends of hers, but Langford “cut me off.” She testified that after this happened several more times, she concluded that the driver was not a friend, and that he might be drunk, so she slowed down.

At some point, Langford changed lanes quickly and his car spun out of control, crossed into the eastbound lanes of traffic, and collided with Holman’s car. Pitts swerved to avoid flying debris and Coleman’s body, which had been thrown from Langford’s car. Pitts’s car did not collide with another vehicle.

George Carswell, an accident investigator with the Brunswick Police Department, concluded that Langford and Pitts “were traveling at a high rate of speed trying to pass each other and changing lanes to keep each other from passing each other.” According to Cars-well, Pitts’s car played a causal role in the collision.

In her complaint, Ms. Holman alleges that the passengers in the two cars “were engaged in a joint enterprise with the drivers of the vehicles, and all acted in concert in a reckless manner.” Accordingly, she asserts that the negligence of Langford and Pitts should be imputed to their passengers. The trial court granted summary judgment to all four passengers without opinion and later entered final judgment in their favor.

We have held that automobile passengers are not liable for the negligence of their drivers “solely by virtue of a common excursion in pursuance of joint interests.” “[T]here must be not only a joint interest in the objects and purposes of the undertaking, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.” Thus, in Keaton v. Fenton, we ruled that the negligence of a drunk driver could not be imputed to his passengers under “the proposed principle that they who drink together should pay together if one of the group injures a third party,” because the passengers had no right and made no attempt to control the car.

In this case, there is no evidence that any passenger in either Langford’s car or Pitts’s car attempted to exercise control over the operation of the respective vehicles. Nonetheless, Ms. Holman asserts that the passengers contributed to an atmosphere of “horse play” between the vehicles by, among other things, “waving back and forth.”

Pretermitting whether a passenger could be held liable for encouraging the driver to act recklessly, there is no evidence of such encouragement here. With respect to Pitts’s passengers, Lisa Jacobs testified that she was trying to sleep in the backseat as Pitts crossed the causeway, and Christina Watts testified that she was relaxing in the front seat with her eyes closed, listening to the radio. Pitts agreed that Jacobs had been dozing. Pitts testified that she and Watts were talking, but she could not recall the subject of their conversation. With respect to Langford’s car, there was evidence one of his passengers waved at the occupants of Pitts’s car when the cars first passed each other, but waving is not tantamount to promoting illegal activity. Langford testified that he did not know what his passengers were doing, which suggests that they were not encouraging him to violate any rules of the road. In fact, both Langford and Charles Ferrell, the front seat passenger, testified that Coleman, who was in the backseat, had said that he would never weave in and out of traffic in his own vehicle, which, according to Langford, “was pretty much telling me to stop.”

Decided June 11, 2001

Reconsideration denied June 29, 2001

Mills & Chasteen, Ben B. Mills, Jr., Hutto & Palmatary, Jack Hutto, for appellant.

Brennan, Harris & Rominger, Richard A. Rominger, Kristine B. Shehane, Barrow & Ballew, Walter W. Ballew III, Dillard, Bower & East, Bryant H. Bower, Jr., Karsman, Brooks & Callaway, R. Krone Riddle, for appellees.

Ms. Holman relies on Bellamy v. Edwards and Kilpatrick v. Foster, in which we held that the driver of a vehicle driving recklessly and in tandem with another vehicle could be held liable for a resulting collision under a joint enterprise theory, even if his car was not directly involved in the collision. But Bellamy and Kilpatrick did not address the potential liability of any passengers, so those decisions do not apply here.

Certainly, in the absence of any evidence that the passengers in either car attempted to exercise control over the operation of the vehicles or encouraged the drivers to engage in illegal activity, summary judgment in their favor was appropriate.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       Ms. Holman sued Coleman’s father in his capacity as representative of his son’s estate.

       Ms. Holman also sued Langford’s father and Pitts’s mother, but those claims are not at issue here.

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Touchton v. Amway Corp., 247 Ga. App. 269, 270 (543 SE2d 782) (2000).

        Keaton v. Fenton, 147 Ga. App. 579 (249 SE2d 629) (1978).

       (Citations omitted.) Holland v. Boyett, 212 Ga. 458 (1) (93 SE2d 662) (1956).

       Supra.

       Id.; see also Adamson v. McEwen, 12 Ga. App. 508, 511 (77 SE 591) (1913) (person with “no control or management of the machine or of the driver” not liable for driver’s negligence); Neve v. Graves, 26 Ga. App. 378, 379 (106 SE 305) (1921) (passengers not hable for driver’s negligence simply because they purchased oil and gas for car).

       Compare Cullen v. Timm, 184 Ga. App. 80, 81-82 (1) (360 SE2d 745) (1987) (passengers were not engaged in joint enterprise with driver who ran red light, even though they urged him to do so, because driver alone “held ultimate operational authority over the vehicle”) with Hood v. Evans, 106 Ga. App. 360, 362 (126 SE2d 898) (1962) (passenger in car competing in illegal drag race could be liable for resulting accident where he “ ‘gave the signal to start (the race) by holding his arm out the window and counted three and dropped his arm’”).

       See Snell v. McCoy, 135 Ga. App. 832, 833 (2) (219 SE2d 482) (1975) (fact that passenger waved at police car that was pursuing the car in which he was riding did not show that passenger took part in “common design” or conspiracy to elude police).

       181 Ga. App. 887-889 (1) (354 SE2d 434) (1987).

       185 Ga. App. 453-455 (1) (364 SE2d 588) (1988).


author: Barnes, Judge.

text:
    A01A0624.
    BARNES v. THE STATE.
    (549 SE2d 495)
   Barnes, Judge.

L’Erin F. Barnes appeals from her conviction of driving on a revoked license, contending the trial court erred when it (1) failed to determine whether the appellant knowingly and intelligently waived her right to counsel, and (2) provided a defective plea form that did not “fully apprise appellant of her right to counsel and the consequences of proceeding pro se.” Because Barnes was not entitled to counsel, we affirm.

The record shows that the trial court sentenced Barnes to 365 days of confinement but ordered that it “may be served on probation,” subject to the condition that Barnes paid her $743 fine. The trial court further ordered that Barnes’ probation would be terminated after she paid her fine. There is no evidence showing that Barnes was ever actually imprisoned after her conviction.

Although the right to counsel extends to misdemeanor prosecutions where imprisonment may result (Argersinger v. Hamlin, 407 U. S. 25 (92 SC 2006, 32 LE2d 530) (1972)), our Supreme Court has interpreted Argersinger as requiring that a defendant in a misdemeanor criminal prosecution be entitled to counsel only where the defendant is sentenced to actual imprisonment. Brawner v. State, 250 Ga. 125 (2) (296 SE2d 551) (1982); Johnston v. State, 236 Ga. 370 (3) (223 SE2d 808) (1976); see also Sams v. State, 162 Ga. App. 118 (1) (290 SE2d 321) (1982).

Capelli v. State, 203 Ga. App. 79 (1) (416 SE2d 136) (1992). We have previously held that a “12-month probated sentence[ ],” id. at 79, and a “12-month suspended period of confinement,” Romano v. State, 220 Ga. App. 322, 323 (2) (469 SE2d 726) (1996), were not sentences of actual imprisonment triggering the right to counsel. See also Parks v. McClung, 271 Ga. 795, 797 (524 SE2d 718) (1999) (defendant can challenge whether right to counsel validly waived if probation revoked and defendant actually imprisoned).

Because Barnes was not actually imprisoned, she was not entitled to counsel. As a result, we find no merit in her claim that her conviction must be reversed based on a lack of information about her right to counsel or a failure by the trial court to find a valid waiver of that alleged right on the record.

Decided May 23, 2001

Reconsideration denied June 29, 2001

Sarnia P. Giddings, Terry Grandison, Claudette V. Bazile, for appellant.

Joseph J. Drolet, Solicitor-General, Katherine Diamandis, Assistant Solicitor-General, for appellee.

Judgment affirmed.

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


text:
    A01A1133.
    McKENZIE v. THE STATE.
    (549 SE2d 774)
   Phipps, Judge.

Several years after this court affirmed criminal convictions entered against Raleigh McKenzie, he filed motions in the trial court for modification of his sentences and recusal of the trial judge. He appeals the order of the trial judge denying his motion to recuse. We affirm.

In 1994, McKenzie was convicted of various sexual offenses in the DeKalb Superior Court. This court conditionally affirmed his convictions in 1996 and then finally upheld the convictions the following year. More than three years later, McKenzie filed a motion for sentence modification. Although the trial judge had clearly specified on the sentencing order that certain of the sentences were to be served consecutively to others, McKenzie asserted in his motion that under OCGA § 17-10-10 all sentences should run concurrently because the trial court had not expressly provided for consecutive sentencing. Approximately one week after filing the motion to modify, McKenzie filed a motion to recuse the trial judge. On the date the recusal motion was filed, the court entered an order denying it. Several days later, the court entered another order denying the motion for sentence modification.

1. The State’s motion to dismiss this appeal as untimely is denied. The thirtieth day following entry of the order denying the motion for sentence modification fell on Thursday, November 23, 2000, which was Thanksgiving Day. That day and the following day, Friday, November 24, were designated State holidays. Consequently, the time for filing the notice of appeal was extended to the next business day, Monday, November 27, 2000. On that date, McKenzie filed his notice of appeal from the final judgment. Therefore, the appeal is timely.

Decided June 1, 2001

Reconsideration denied June 29, 2001

Raleigh McKenzie, pro se.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

2. There was no error in the trial court’s denial of the motion to recuse because it was neither timely filed nor accompanied by the affidavit required by Uniform Superior Court Rule 25.1. Moreover, the motion to recuse was filed in connection with the motion for sentence modification, and it would appear that the trial court did not have jurisdiction over the motion for sentence modification. Even if it did have jurisdiction, the record affirmatively shows that the trial court complied with OCGA § 17-10-10 by expressly providing that various of McKenzie’s sentences were to be served consecutively. Therefore, McKenzie was properly sentenced.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        McKenzie v. State, 223 Ga. App. 108 (476 SE2d 868) (1996).

        McKenzie v. State, 227 Ga. App. 778 (490 SE2d 522) (1997).

       OCGA § 1-4-1.

       OCGA § 1-3-1 (d) (3).

        Brice v. State, 242 Ga. App. 163, 167 (7) (529 SE2d 178) (2000).

       See McBee v. State, 239 Ga. App. 314 (521 SE2d 209) (1999).


author:
Miller, Judge.
      Eldridge, Judge,

text:
    A01A0364.
    HENDERSON v. THE STATE.
    (551 SE2d 400)
   Miller, Judge.

Following a bench trial, Matthew Joseph Henderson was convicted of a seat belt violation and possession of methamphetamine. In his sole enumeration of error, Henderson challenges the denial of his motion to suppress. We discern no error and affirm.

Construed in favor of the trial court’s ruling, the evidence shows that two officers initiated the stop of Henderson’s vehicle because neither Henderson nor his passenger was wearing a seat belt. A videotape of the stop shows that once the officers stopped Henderson, they informed him that he was going to be cited for a seat belt violation. Officer Prince immediately began writing the citation, which he pursued diligently for the next four minutes. Less than two minutes into Officer Prince’s writing of the citation, Officer Wilkinson asked Henderson if he had any weapons or drugs in the vehicle, to which Henderson responded that he did not. Officer Wilkinson then asked for consent to search the vehicle for illegal weapons or drugs. Henderson consented, and the officer began the search. Officer Prince two minutes later completed the citation and handed it to Henderson, and three minutes later Officer Wilkinson found methamphetamine in the pocket of a pair of pants located on the backseat of the vehicle.

Henderson argues that Officer Wilkinson impermissibly expanded the scope of the traffic stop by questioning him about weapons and drugs. He contends this type of questioning was unrelated to the seat belt violation. Henderson does not argue that Officer Wilkinson’s questioning of him about weapons and drugs extended or prolonged the detention. Indeed, the videotape plainly shows that Officer Wilkinson’s questions to Henderson in no way delayed, extended, prolonged, or interrupted Officer Prince’s writing of the citation.

We note initially that the stop of Henderson’s vehicle was permissible as it was based on probable cause. During this valid traffic stop, Officer Wilkinson asked Henderson about weapons and drugs and then asked for consent to search. Henderson claims that the police officer's mere asking of the questions, which admittedly did not prolong the stop, was in and of itself a violation of his constitutional rights and rendered his consent invalid. We have previously rejected such a notion. “ ‘Having already effected a valid stop of the vehicle, the trooper certainly did not violate the appellant’s Fourth Amendment rights merely by requesting such consent.’ ”

Indeed, just a few months ago in State v. Sims we again rejected this notion. There the trial court had held “that by asking the Defendant about drugs and then asking for consent to search, [the officer] exceeded the scope of the permissible investigation by turning a completed traffic stop into an investigation for drugs, something that is expressly prohibited. . . .” Holding the trial court misstated the law, we explained that “[i]n deciding whether the question about drugs and weapons, standing alone, was unreasonable, we note that ‘mere police questioning does not constitute a seizure.’” Only “if the officer continues to detain the subject after the conclusion of the traffic stop and interrogates him or seeks consent to search without reasonable suspicion of criminal activity . . .” does the officer exceed the scope of a permissible investigation of the initial traffic stop. Sims reiterated that absent an articulable suspicion of another crime, an officer exceeds the scope of permissible investigation for a traffic stop only if the officer “questions and detains a suspect for other reasons. . . .”

Thus, it is not the nature of the questions which offends the Fourth Amendment; it is whether in asking the questions the officer impermissibly detains the individual beyond that necessary to investigate the traffic violation precipitating the stop. That is a key point focused on recently by this Court in State v. Gibbons. There the officer, who acting alone had stopped the driver for a seat belt violation, made no attempt to investigate the seat belt violation but rather launched into an extensive series of unrelated questions that eventually led to the discovery of illegal drugs on the driver’s person. Only later did he write the seat belt citation. We upheld the suppression of the drugs, emphasizing in Presiding Judge Pope’s special concurrence (joined in by six other judges and quoting from Sims extensively) the trial court’s finding that “‘Mather than ticket [the driver] or release him, the officer decided to conduct a drug investigation.’ It is this continued detention that makes the questioning and request to search without reasonable suspicion of criminal activity impermissible.”

The second special concurrence agreed. Citing United States v. Pruitt, Judge Ruffin wrote about the evils of postponing the writing of the traffic ticket and of lengthening the detention for further questioning. As stated by the Eleventh Circuit in United States v. Purcell, “only unrelated questions which unreasonably prolong the detention are unlawful; detention, not questioning, is the evil at which Terry’s prohibition is aimed. Questions which do not extend the duration of the initial seizure do not exceed the scope of an otherwise constitutional traffic stop.”

On the same day we decided Gibbons, we also decided Berry v. State, which held similarly. During the traffic stop in Berry, an officer queried the driver about the driver’s travel plans, the weather, the driver’s son, and the driver’s truck and then asked the driver if he had any weapons or drugs in his car and if the officer could search the vehicle. The driver stated that he had nothing like this and refused to consent to a search. After abandoning his investigation of the traffic violation, the officer then nevertheless detained the driver so that the officer could have a police dog do a free-air search around the vehicle. We held that the “further detention” was unreasonable, not the questions asked. Indeed, we emphasized that the questions were reasonable and routine. “[W]e are obliged to point out that the questions asked by the officer are part and parcel of the questioning routinely done by officers in the course of these traffic stops.” We explained that such questioning, “which is rarely if ever directed toward the reason for the initial stop,” allows the officers to later testify about inconsistent or evasive responses, discrepancies in travel plans, variations between the driver’s and passenger’s responses, and unwarranted nervousness.

Here the questions about weapons and drugs and the request to search did not prolong, continue, or otherwise extend Henderson’s detention. Officer Prince was less than two minutes into filling out the citation for the seat belt violation when Officer Wilkinson asked Henderson about weapons and drugs and asked for consent to search the vehicle. Thus, at the time consent was given, the police had done nothing improper, and the consent was valid. Although the search of Henderson’s vehicle continued for three minutes after the traffic citation was handed to him, he had voluntarily consented to the search before the processing of the traffic violation was complete. Thus, the search was proper, and the lack of probable cause or reasonable suspicion of drug activity at the time this permission was granted did not invalidate the consent.

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

Judgment affirmed.

Andrews, P. J., concurs. Eldridge, J., concurs specially.

Eldridge, Judge,

concurring specially.

I concur with the judgment in this case. I write because it bears recognition that not four months after deciding State v. Gibbons, 248 Ga. App. 859 (547 SE2d 679) (2001), we are trying to find a way around its irrational holding, which has already become the basis for numerous appeals.

No matter how artfully the majority attempts to distinguish this case from Gibbons by suggesting two officers make a difference because the drug questioning does not then “prolong” a valid seat belt detention, there is no difference between Gibbons and the instant case.

Here, as in Gibbons, in the middle of a brief (four-minute) lawful detention for seat belt violation, an officer asked about drugs and requested consent to search. In Gibbons, this Court held specifically that it was the content of the officer’s questions, themselves, that made the detention illegal. That is why the entire colloquy between the police officer and the detainee was cited by the majority in Gibbons when affirming the trial court’s finding that “by asking questions unrelated to the seat belt violation, the trooper exceeded the authorized scope of the original stop.” As further stated by Judge Ruffin in his special concurrence, which was joined by four judges, including the author of the current majority:

The officer only had probable cause to stop the driver for a specific traffic violation, and the permissible scope of the detention was limited to investigating and prosecuting only that violation. . . . The officer’s probing interrogation was unrelated to the [seat] belt violation, no matter when it occurred. . . . [T]he continued detention became illegal because of the inappropriate questioning.

In both Gibbons and Berry v. State, decided at the same time, the detentions were no longer than the one in the instant case. In fact, in Berry, the officer and Berry were waiting for information to come back from a police radio check on Berry’s license and registration when the K-9 free-air search was conducted; thus, the K-9 search did not “prolong” the detention.

Decided June 29, 2001

Gilbert J. Murrah, for appellant.

J. Brown Moseley, District Attorney, for appellee.

And giving pause especially is the majority’s invocation of United States v. Purcell, which held “a police officer’s questioning, even on a subject unrelated to the purpose of the stop, is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure.” Purcell, cited only in dissent by this writer, was ignored completely by the Gibbons majority.

In a word, I concur with the judgment in this case. I welcome the retrenchment from Gibbons. And I predict ever more novel and interesting methods of attempting to circumvent its eminently wrongheaded holding until reversal is finally demanded — or, as reflected in the instant case, sufficient contrary precedent is established to allow us to disregard Gibbons totally as we evolve into the law as put forward in Purcell, i.e., “only unrelated questions which unreasonably prolong the detention are unlawful.”

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Harris v. State, 239 Ga. App. 537, 540 (2) (a) (521 SE2d 462) (1999); Davis v. State, 232 Ga. App. 320, 321 (1) (501 SE2d 836) (1998).

        Kan v. State, 199 Ga. App. 170, 171 (2) (404 SE2d 281) (1991), quoting Pupo v. State, 187 Ga. App. 765, 766 (2) (371 SE2d 219) (1988); accord Gamble v. State, 223 Ga. App. 653, 656 (3) (478 SE2d 455) (1996).

       248 Ga. App. 277 (546 SE2d 47) (2001).

       Id. at 278.

       Id., quoting Florida v. Bostick, 501 U. S. 429, 434 (111 SC 2382, 115 LE2d 389) (1991).

       (Emphasis in original.) Sims, supra, 248 Ga. App. at 279.

       (Emphasis in original.) Id. at 280.

       248 Ga. App. 859 (547 SE2d 679) (2001).

       Id. at 860-863 (2).

       See id. at 872 (Eldridge, J., dissenting).

       (Emphasis supplied.) Id. at 864 (Pope, P. J., concurring specially).

       174 F3d 1215 (11th Cir. 1999).

        Gibbons, supra, 248 Ga. App. at 868 (Ruffin, J., concurring specially).

       236 F3d 1274 (11th Cir. 2001).

       (Citation and punctuation omitted.) Id. at 1280 (II) (B).

       248 Ga. App. 874 (547 SE2d 664) (2001).

       Id. at 875-877.

       Id. at 877.

       Id. at 881 (4).

       Id.; see id. at 887 (Ruffin, J., concurring specially) (“the period of detention was unnecessarily long because the officer delved into these other matters”) (emphasis in original).

       Id. at 882 (4).

       Id.

        Gamble v. State, 223 Ga. App. 653, 656 (3) (478 SE2d 455) (1996).

        Santana v. State, 197 Ga. App. 204 (1) (397 SE2d 629) (1990).

       Contrary to the majority’s assertion, only two judges — not six —joined with Judge Pope’s special concurrence in Gibbons which tried to temper the effect of the majority opinion. Unfortunately, it could not because the facts in Gibbons could not be altered, i.e., during a brief (four-minute) valid detention for seat belt violation, the officer questioned Gibbons about drugs before issuing him a citation.

       Supra at 860-863.

       Id. at 863.

       (Emphasis supplied.) Id. at 868 (Ruffin, J., concurring specially).

       248 Ga. App. 874 (547 SE2d 664) (2001).

       236 F3d 1274 (11th Cir. 2001).

       Id. at 1279-1280.

        State v. Gibbons, supra at 870-871 (Eldridge, J., dissenting).

       Id., citing United States v. Purcell, supra at 1280.


text:
    A01A0395.
    HUDGINS v. AMERIMAX FABRICATED PRODUCTS, INC.
    (551 SE2d 393)
   Phipps, Judge.

Chris A. Hudgins filed a petition for declaratory judgment to ascertain the enforceability of a noncompetition, nonsolicitation agreement. Hudgins signed the agreement when he sold his stock as part of the sale of a family-owned business. After the trial court ruled adversely to Hudgins, finding that “[h]e must now abide by the covenants to which he agreed,” Hudgins filed this appeal. Hudgins contends that the trial court used the wrong level of review and that under any standard, the restrictive covenants are unenforceable. Because we find that the territorial limitation is too broad we remand only for the trial court to determine the geographical area to which the restrictive covenants apply.

In 1999, Amerimax Fabricated Products, Inc. (Amerimax) decided to acquire Atlanta Metal Products, Inc. (Atlanta Metal), one of its competitors. Atlanta Metal was a developer, manufacturer, and distributor of rain-carrying products, guttering, and downspouts and also sheet metal panels and roofing for residential and commercial use. From its inception, Atlanta Metal had been principally owned and operated by Hudgins’s grandfather, two maternal uncles, and his mother. His grandfather, the founder of the company, had given nineteen shares of stock to Hudgins resulting in his having a two percent, nonvoting interest in the company. Hudgins began working at Atlanta Metal in 1975 and proceeded up the ranks from truck driver, machine operator, die setter, foreman, supervisor, and to plant manager for a time. In 1997, he became a purchasing agent and ceased managing employees.

When Amerimax purchased the outstanding stock certificates, all 18 shareholders in Atlanta Metal became bound by certain noncompete, nonsolicitation agreements. On June 3, 1999, in consideration for selling his stock interest and executing a document titled, “NONCOMPETITION AND NONSOLICITATION AGREEMENT IN CONNECTION WITH STOCK PURCHASE AGREEMENT,” Amerimax paid Hudgins $680,200 for his 19 shares and for executing the covenants. Before signing the documents, Hudgins had discussions with the majority stockholders, Charles Kidd, Wayne Kidd, and Mary Kidd Hudgins, and voiced his opposition to the sale, telling the others, “we were selling what I termed as the golden goose.” As Hudgins explained, “the older stockholders in the company wanted to retire, and the younger ones did not want the debt that it would take to buy out the older ones.”

When Hudgins executed the stock purchase agreement, he and all other shareholders were expressly required to sign noncompetition agreements. Section 5.2 (f) of the stock purchase agreement states:

Non-Competition Agreements. Each Shareholder shall have executed and delivered to Purchaser a Non-Competition Agreement in favor of Purchaser, agreeing for a périod of three (3) years following the Closing Date not to directly or indirectly engage in a business competitive with the Company within the geographic area referred to therein, in the form of Exhibit 5.2(f) attached hereto (the “Non-Competition Agreements”).

Hudgins admitted that he understood when he signed the agreement that he would be prohibited from directly or indirectly engaging in a competitive business in the same geographic area for three years. Hudgins explained that he “didn’t want to be a cog in the wheel” or to hold up negotiations or discourage Amerimax because his mother “wanted the deal to go through.”

1. Hudgins contends that the trial court erred by applying the wrong level of scrutiny in reviewing the enforceability of the restrictive covenants. He claims that the noncompetition and nonsolicitation agreement at issue should have received “strict scrutiny” as an illegal and unconstitutional restraint of trade. He contends that the trial court erred in finding the agreement to be enforceable.

For purposes of judicial consideration, restrictive covenants that are ancillary to the sale of a business and restrictive covenants that are ancillary to employment contracts are analyzed in fundamentally different ways. Part of the rationale for the distinction is attributable to the typically unequal bargaining power of employees who execute employment contracts, and part of the rationale reflects legitimate business concerns that arise in the sale of a business. Consequently, a covenant entered into as part of the sale of a business can generally be drafted more broadly than one entered into as part of an employment contract. On the other hand, “close scrutiny” is traditionally applied to employment contracts with restrictive covenants to ensure that they are strictly limited in duration, territory, and prohibited activities. While a covenant not to compete that is part of the sale of a business interest can be blue-penciled to sever an unreasonable or an overbroad provision, a similar restrictive covenant that is part of an employment contract cannot be rewritten.

“In determining the reasonableness of a covenant not to compete, greater latitude is allowed in those covenants relating to the sale of a business than in those covenants ancillary to an employment contract.” Here, the trial court decided that the noncompetition agreement at issue was part of the sale of Atlanta Metal’s business to Amerimax. Notwithstanding any claim to the contrary, this is correct. It is undisputed that Hudgins’s employment terminated when Atlanta Metal was sold, so the covenant not to compete was not ancillary to continued employment.

Special considerations often arise in the sale of a business. “When a person sells a business and covenants not to compete in a certain territory, the buyer pays and the seller receives a part of the total purchase price as consideration for that covenant. The buyer frequently would not buy the business if the seller were free to begin competing immediately.” And, as this Court noted:

Where the sale of a business is involved, the purchaser’s interest in what he has acquired cannot be effectively realized unless the seller agrees not to act so as to diminish the value of what has been sold. See Restatement of the Law of Contracts, Second, § 188, Comment (b). It follows that the reasonableness of any covenant not to compete ancillary to the sale of a business must be measured on the basis of whether the restricted activity protects the purchaser’s legitimate business interests, i.e., the value of the business and its good will.

Here, Amerimax offered evidence that the restrictive covenants were a significant part of the transaction. Neil Bashore, executive vice president of the parent company of Amerimax, testified that “Amerimax would not have acquired Atlanta Metal if the stockholders of Atlanta Metal did not agree to execute non-competition agreements.” Bashore testified that the execution of the noncompetition agreement was “a material condition to the stock purchase agreement.” Bashore attested that “[i]n exchange for entering these non-competition agreements, the Atlanta Metal stockholders received additional compensation, or good will, for their shares of stock. The good will received by the Atlanta Metal stockholders was over $8.5 million.”

Hudgins argues that because of his status as a minority shareholder, he had little or no bargaining power in the sale of his employer’s business and, therefore, the restrictive covenants should have been subjected to strict scrutiny and treated as ancillary to an employment contract. Since Hudgins did not have continued employment or an employment contract, his reliance upon cases construing noncompetition agreements ancillary to employment contracts is misplaced. Efforts to analogize his bargaining position to that of a “mere employee” are unpersuasive. His own testimony belies his complaint that he had no greater bargaining power than a “mere employee.” Hudgins testified that he did not attempt to negotiate different terms with Amerimax, not because he was unable to do so but because he did not want to defeat the acquisition or to undertake an action that would “quell the deal.” Accordingly, we find that the trial court applied the appropriate level of review and did not err in finding that the “Noncompetition and Nonsolicitation Agreement” is an enforceable document.

2. Hudgins asserts that the trial court erred in determining that the terms of the agreement are reasonable and are not an unconstitutional restraint of trade or against the public policy of this State. He claims that under any standard of review the terms of the restrictive covenants are “patently unreasonable.”

Hudgins candidly admits, “I want to open a rain-carrying manufacturing plant in North Georgia, and re-establish contact with [Atlanta Metal’s] former customers in the area. . . .” He admittedly wants to serve what he describes as “a tremendous customer base” located in the Alpharetta area. But, engaging in these activities is exactly what Hudgins promised not to do for three years. Prohibiting these precise activities is the legitimate function of sale of business restrictive covenants.

However, the reasonableness of restrictive covenánts in terms of the activities proscribed, the duration of the restrictions, and the territory to which they apply must be measured against whether the restrictions on the seller protect the purchaser’s legitimate business interests, the value of the business, and its good will. Here, the proscribed activity of competing in the rain-carrying product and metal roofing business and the three-year limit seem reasonably necessary to protect Amerimax’s legitimate business interests. Nevertheless, Hudgins contends that he should not be precluded from seeking employment in the same industry in 25 states or from soliciting customers with whom he personally had no contact.

Territorial limitations arising in the sale of stock in a business must be reasonable. Isolated transactions in the periphery may be disregarded in determining the area legitimately served by the seller at the time of sale. “Where a covenant not to compete made by a seller in conjunction with the sale of a business designates an area greater than that reasonably necessary to protect the buyer, the court will enjoin the seller from competing in only so much of that area as it finds from the clear and convincing evidence is essential to protect the buyer.”

Decided June 29, 2001.

Richard A. Gordon, Cammi R. Jones, for appellant.

Arnall, Golden & Gregory, Charles L. Gregory, Richard A. Mitchell, for appellee.

The parties stipulated that the majority of Atlanta Metal’s customers were within a 150-mile radius of Atlanta, with some customers located elsewhere in Georgia, Alabama, Tennessee, South Carolina, and North Carolina. Amerimax has not offered clear and convincing evidence to show that precluding Hudgins from competing in or soliciting customers in all 25 states on the list is essential to protecting its purchase of Atlanta Metal. Therefore, we remand for the trial court to conduct an evidentiary hearing to determine whether the otherwise enforceable restrictions should apply to a smaller geographical area.

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

Smith, P. J, and Barnes, J., concur.

       While employed at Atlanta Metal, Hudgins’s highest earnings in a single year were $130,000.

        Northside Hosp. v. McCord, 245 Ga. App. 245, 247 (1) (537 SE2d 697) (2000); Habif, Arogeti & Wynne, P.C. v. Baggett, 231 Ga. App. 289-290 (1) (498 SE2d 346) (1998).

        Jenkins v. Jenkins Irrigation, 244 Ga. 95, 98-99 (259 SE2d 47) (1979).

        Drumheller v. Drumheller Bag & Supply, 204 Ga. App. 623, 626 (1) (420 SE2d 331) (1992).

        Ceramic & Metal Coatings Corp. v. Hizer, 242 Ga. App. 391, 392 (529 SE2d 160) (2000).

        Watson v. Waffle House, 253 Ga. 671, 672 (2) (324 SE2d 175) (1985).

       (Citations omitted.) Dalrymple v. Hagood, 246 Ga. 235, 236 (271 SE2d 149) (1980).

        Jenkins, supra, 244 Ga. at 100 (3).

       (Citations omitted.) Drumheller, supra, 204 Ga. App. at 627-628 (3).

       Compare S. Hammond Story Agency v. Baer, 202 Ga. App. 281 (414 SE2d 287) (1991).

       Compare White v. Fletcher/MayolAssoc., 251 Ga. 203, 208 (303 SE2d 746) (1983).

       See Carroll v. Ralston & Assoc., 224 Ga. App. 862, 864 (481 SE2d 900) (1997).

       See Klein v. Williams, 212 Ga. App. 39, 41-42 (3) (441 SE2d 270) (1994).

       See Jenkins, supra, 244 Ga. at 98 (2) (covenant not to compete made in conjunction with the sale of a business may be unlimited as to time, so long as buyer remains in business, and still be valid).

       Exhibit A lists 25 states as the “territory.” An alphabetical list of customers provides the names of customers that cannot be solicited.

        Jenkins, supra, 244 Ga. at 99 (2).

       Id. at 101 (3).

       (Citation and punctuation omitted.) Klein, supra, 212 Ga. App. at 40-41 (2).

       In addition to Georgia and the four other states, Bashore testified that “Atlanta Metal transacted significant business in other states as well and sold products to customers in 25 states.”

       Compare Klein, supra, 212 Ga. App. at 41 (2).

       See Reed v. Eastern Elec. Apparatus Repair Co., 194 Ga. App. 650, 651-652 (391 SE2d 472) (1990).


text:
    A01A0402.
    GOLDEN v. THE STATE.
    (551 SE2d 398)
   Phipps, Judge.

A grand jury indicted Melissa Golden and her boyfriend, Michael Swanger, for trafficking in amphetamine and possession of marijuana. Golden also was charged with obstruction of an officer. One attorney represented both defendants in a joint trial, at which the jury found both guilty as charged. In an amended extraordinary motion for new trial, Golden argued that the dual representation created a conflict of interest that rendered her counsel ineffective. The trial court found that she had waived such a claim and denied her motion. Golden appeals, maintaining that her Sixth Amendment right to counsel was violated and that she did not waive that right. Because the record shows that Golden did waive any potential conflict of interest by proceeding with the same attorney as her co-defendant, we affirm.

1. The material facts underlying the charges are not controverted. On August 6, 1998, Agents Bridgeman and Witmer of the Clayton County Drug Enforcement Task Force went to Golden’s residence to investigate complaints of suspected drug activity. Golden answered the door and permitted the agents to step into the living room. When the agents identified themselves and asked to search the house for illegal substances, Golden refused. While standing in the living room, Bridgeman saw a partial marijuana cigarette on a candle holder in the room and arrested Golden for misdemeanor marijuana possession. Backup police officers arrived, and Bridgeman left to obtain a search warrant for the house. Golden attempted to flee, but Witmer apprehended her.

Moments later, Swanger and two other individuals arrived at the residence. Witmer ordered them to the ground. During a pat-down search, Witmer found marijuana in Swanger’s pocket and arrested him. When Bridgeman returned with a search warrant, a search of the house revealed more marijuana and over 400 grams of a substance that tested positive for amphetamine.

2. Golden contends that the trial court erred in denying her a new trial based on its finding that she waived any conflict of interest claim. She asserts that any waiver on her part was not knowing, intelligent, and voluntary. “In order to waive a right as fundamental as effective counsel, the trial court must, on the record, determine that the waiver is knowing, intelligent and voluntary. To meet this test, the trial court must be satisfied that the defendant is aware of the possibility of conflicts and the dangerous consequences which may result.”

Before trial, the State raised the possibility of a conflict of interest caused by the defendants being represented by the same attorney. And both Golden and Swanger confirmed to the court that they had discussed the case “at great length” with their retained attorney, that neither planned to testify during the trial, that they believed that they were best represented by that attorney, and that they waived any conflict with respect to the dual representation. The prosecutor then stated, “I would like to approach one of the defendants and offer them some sort of a negotiated settlement if they testify against the other one. . . .” When the court asked the defendants about that offer, both defendants stated that they understood what the prosecutor was proposing then again stated that they wished to proceed to trial with their attorney. The trial court then asked whether they would testify at trial or remain silent. Golden and Swanger replied that neither would testify.

The record reveals that Golden understood her trial defense. According to her trial attorney, the defense was that “someone else left [the drugs] in the house.” The attorney presented the testimony of the defendants’ friend, who stated that on the evening before the arrests he had attended a “get-together” at the residence, that one of the guests carried a black duffel bag into the house, and that a guest (without indicating whether he was the same guest who brought the duffel bag) had “methamphetamines.” Golden acknowledged this defense at the hearing on the extraordinary motion for new trial when the prosecutor asked her, “Did you understand that [the trial attorney's] defense during the trial was that neither — that you didn’t own the drugs, correct?” Golden answered, “That’s right, ma’am.” The prosecutor then asked her, “And you understood that his defense was that Mr. Swanger did not own the drugs, correct?” Golden responded, “Correct.” Also, at the hearing on motion for new trial, Golden admitted that she had been advised before trial that an independent attorney could be appointed for her if she could not afford one. Thus, the record demonstrates that with an understanding of their common defense, Golden elected to proceed to trial with the dual representation.

During the presentation of evidence by the defense, the trial court asked each defendant during a recess whether there was “anything you need to put on the record or any misunderstanding or anything you need to do?” Swanger replied, “Not on my behalf.” The trial court then asked, “And what about Ms. Golden, is there anything you need to clear up about the case or how it’s proceeding or anything, I’ll give you opportunity to do so.” Golden answered, “No, sir.” The trial court again asked whether either defendant wished to testify, stating, “You just have to understand you have the right to testify if you wish but if you don’t testify, I’ll instruct the jury not to hold that against you. The law provides for that.” Both defendants confirmed that they did not wish to testify.

At the close of evidence, Golden expressed concern about her “situation,” the trial tactics, and her rights. When the judge asked her, “What rights are you referring to?” Golden replied, “All of them,” making reference to the charges and the evidence. The judge then specifically inquired, “What kind of conflict do you contend existfs] between you and your co-defendant. . . ?” Golden replied, “Several.” The judge asked her what she wanted, and she asked for “somebody to advise me what all exactly my rights are and where I stand at.” The judge told Golden that she had “a hired attorney and that’s what he’s hired for” and then gave her time to speak with her attorney and Swanger. Afterward, Golden and Swanger told the trial-court that they wanted to continue with the trial. The judge asked Golden, “If there’s any conflict or you can’t agree on, let me know and you don’t wish to discharge your attorney anymore?” Golden responded, “No, sir.” The court again asked, “You were able to resolve it?” Golden confirmed, “Yes, sir.” The defense attorney followed up, “This is knowing and voluntary and intelligent and well thought out?” Golden replied, “Yes.”

The trial court did not err in its finding that Golden effectively waived any claim to a conflict of interest as the record shows she was aware of the possibility of conflicts and dangerous consequences created by the dual representation. She understood that independent counsel could have been appointed for her, that she could have entered negotiations for a plea, and that she could have testified on her behalf and against Swanger. Aware of her defense, she confirmed to the court that she had discussed the case with their attorney, believed that she was best represented by him, and either had resolved or waived any conflict created by the dual representation. Golden’s waiver is constitutionally sufficient.

Finally, Golden’s reliance on Fleming v. State and Tarwater v. State is misplaced. Fleming considered joint representation in death penalty cases. And Tarwater, which specifically addressed joint representation in cases in which “counsel representing multiple defendants negotiates a plea bargain conditioned upon more than one pleading guilty,” is factually distinguishable. Thus, neither case demands a result favorable to Golden.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided June 29, 2001.

Glaze, Glaze, Harris & Arnold, Emmett J. Arnold TV, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

       Swanger is not a party to this appeal.

       (Citations and punctuation omitted.) Redd v. State, 264 Ga. 399, 401 (444 SE2d 776) (1994).

       See generally United States v. Rodriguez, 982 F2d 474 (11th Cir. 1993); compare Redd, supra, 264 Ga. at 401.

       246 Ga. 90 (270 SE2d 185) (1980).

       259 Ga. 516 (383 SE2d 883) (1989).

        Fleming, supra, 246 Ga. at 93 (1) (there cannot be joint representation where the State seeks the death penalty); Zant v. Hill, 262 Ga. 815, 816 (2) (425 SE2d 858) (1993) (limiting the Fleming automatic disqualification rule to “cases in which each of two or more defendants is charged with capital felonies arising out of the same criminal transaction or event”).

        Tarwater, supra, 259 Ga. at 519 (“[a] showing that a defendant was allowed to plead guilty upon the condition that another defendant represented by the same attorney also pled guilty is a per se showing of ineffective assistance of counsel which rises to the level of an unconstitutional deprivation of the right to counsel”).