text:
    A94A1100.
    MOSIER v. STATE BOARD OF PARDONS & PAROLES et al.
    (445 SE2d 535)
   Andrews, Judge.

Following his conviction and incarceration for rape, aggravated sodomy, armed robbery and false imprisonment (see Mozier v. State, 207 Ga. App. 264 (427 SE2d 551) (1993)), Mosier submitted a pro se complaint, along with a request to proceed in forma pauperis, to the Superior Court of Bibb County, seeking damages and other relief against the State Board of Pardons & Paroles (Parole Board), its former chairman, the former district attorney for the Macon Judicial Circuit, and two assistant district attorneys involved in his criminal prosecution. Pursuant to OCGA § 9-15-2 (d), the superior court judge entered an order refusing to allow the complaint to be filed. Mosier appeals from the trial court’s order.

1. In his first enumeration of error, Mosier claims that because the trial judge regularly tries criminal cases prosecuted by the district attorney’s office, the judge’s impartiality might be questioned and he should have recused himself from this case. This contention presents nothing for appellate review since the record does not reflect that Mosier made any request for recusal. Howard v. Burch, 210 Ga. App. 515, 516 (436 SE2d 573) (1993).

2. Next, Mosier claims the trial court erred in refusing to allow his complaint to be filed. “When a civil action is instituted by an indigent party who is not represented by an attorney the trial judge is required to ‘review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading.’ OCGA § 9-15-2 (d).” Hawkins v. Rice, 203 Ga. App. 537 (417 SE2d 174) (1992). If the pleading sets forth a claim as defined by OCGA § 9-11-8, the trial court must allow it to be filed. Barber v. Collins, 201 Ga. App. 104, 105 (410 SE2d 444) (1991); Gonzalez v. Zant, 199 Ga. App. 13, 14 (403 SE2d 880) (1991). A “complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” (Citation and punctuation omitted.) Battle v. Seago, 208 Ga. App. 516 (431 SE2d 148) (1993).

Mosier asserted in his complaint that, prior to his arrest, the State illegally seized a manuscript written by him. In Mozier v. State, supra, we rejected Mosier’s claims that the manuscript was illegally seized. At his criminal trial, the State introduced testimony that the manuscript was autobiographical in nature and featured a murder. Id. at 267-268. The complaint further states that the two assistant district attorneys named as defendants wrote a letter to the Parole Board describing aspects of the crimes, giving an opinion as to his personality, stating that an autobiographical writing was seized from his apartment which described a murder, and also including a copy of the seized manuscript. Mosier contends the manuscript was his private property and that sending the letter and the copy of the manuscript to the Parole Board violated his federal constitutional rights and rights under State law. The complaint is stated as a claim pursuant to 42 USC § 1983 for violation of equal protection and due process rights under the federal constitution and a claim under State law for invasion of privacy and defamation. The former district attorney was named as a defendant on the basis that he was responsible for the conduct of his defendant assistants, who were sued in their individual capacities. The Parole Board was named as a defendant on the basis that it denied Mosier notice of the allegedly false information it received in the letter. The complaint makes the same claim against the former chairman of the Parole Board and seeks damages against him in his official capacity.

The State law claims against the district attorney and his assistants are barred by prosecutorial immunity under Art. VI, Sec. VIII, Par. I (e) of the Georgia Constitution of 1983, which provides that: “District attorneys shall enjoy immunity from private suit for actions arising from the performance of their duties.” “The rationale behind this immunity is that prosecutors, like judges, should be free to make decisions properly within the purview of their official duties without being influenced by the shadow of liability. Therefore, a district attorney is protected by the same immunity in civil cases that is applicable to judges, provided that his acts are within the scope of his jurisdiction. The determining factor appears to be whether the act or omission is intimately associated with the judicial phase of the criminal process.” (Citations, punctuation and emphasis omitted.) Robbins v. Lanier, 198 Ga. App. 592, 593 (402 SE2d 342) (1991); Smith v. Hancock, 150 Ga. App. 80 (256 SE2d 627) (1979); Holsey v. Hind, 189 Ga. App. 656 (377 SE2d 200) (1988).

In Allen v. Thompson, 815 F2d 1433 (11th Cir. 1987), the Eleventh Circuit Court of Appeals considered a similar claim in which a prisoner sued the U. S. Attorney alleging that he maliciously wrote a false letter to the Bureau of Prisons and the Parole Commission. The court concluded that: “Parole decisions are the continuation of the sentencing process, and the assistant [U. S.] Attorney’s reports to the Parol Commission are part of that process. While not undertaken literally at the direction of the court, these activities are so intimately associated with the judicial phase of the criminal process as to cloak the prosecutors with absolute immunity from suits for damages.” Id. at 1434. We conclude that sending the letter to the Parole Board was an act within the scope of the prosecutors’ duties, intimately associated with the judicial phase of the criminal process, and protected by prosecutorial immunity. See OCGA § 15-18-6 (10).

The district attorney and his assistants are also immune from the claims asserted pursuant to 42 USC § 1983. Prosecutors are absolutely immune from liability for damages sought in a § 1983 claim resulting from engagement in “the duties of the prosecutor in his role as advocate for the State. . . .” Imbler v. Pachtman, 424 U. S. 409 (96 SC 984, 47 LE2d 128, 144, n. 33) (1976); compare Buckley v. Fitzsimmons, 509 U. S__(113 SC 2606, 125 LE2d 209, 226) (1993) (“when a prosecutor ‘functions as an administrator rather than as an officer of the court’ he is entitled only to qualified immunity”). Since we found the complained of actions were “intimately associated with the judicial phase of the criminal process,” we conclude that the prosecutors were acting in their roles as advocates for the State and are entitled to absolute immunity from liability for the damages sought pursuant to § 1983.

Any State law claims asserted against the Parole Board and its former chairman are barred by sovereign immunity. In passing on and processing applications for parole, the members of the Parole Board exercise discretion in the performance of their quasi-judicial functions. Neal v. McCall, 134 Ga. App. 680, 681-682 (215 SE2d 537) (1975). Accordingly, the complaint against the Parole Board and its former chairman in his official capacity is a suit against the State to which the defense of sovereign immunity is applicable. OCGA §§ 50-21-22 (5); 50-21-24 (1), (2), (4), (5); Art. I, Sec. II, Par. IX, Ga. Const. 1983, as amended.

Because the sovereign immunity of the State protects these defendants from the State law claims, we also conclude that they are not subject to the claim for damages asserted pursuant to 42 USC § 1983. “Section 1983 authorizes a recovery of damages against a ‘person’ who, under color of state law, deprives another of his federal constitutional rights. ‘(I)n enacting § 1983, Congress did not intend to override well-established immunities or defenses under the common law. . . . The doctrine of sovereign immunity was a familiar doctrine at common law. . . . We cannot conclude that § 1983 was intended to disregard the well-established immunity of a State from being sued without its consent.’ Will v. Mich. Dept. of State Police, 491 U. S. 58, 67 (109 SC 2304, 105 LE2d 45) (1989).” State Bd. of Ed. v. Drury, 263 Ga. 429, 433-434 (437 SE2d 290) (1993); Thompson v. Dept. of Transp., 209 Ga. App. 353, 354 (433 SE2d 623) (1993). “[N] either a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will, supra at 71. Accordingly, these defendants are not “persons” against whom a § 1983 claim for damages will lie. See Drury, supra at 434-435.

Decided May 24, 1994

Reconsideration denied June 14, 1994

Michael R. Mosier, pro se.

Charles H. Weston, District Attorney, Graham A. Thorpe, Elizabeth K. Bobbitt, Assistant District Attorneys, Michael J. Bowers, Attorney General, for appellees.

Since the State law claims and the damage claims asserted pursuant to 42 USC § 1983 are barred by immunity defenses, there existed no justiciable issue with respect to these claims and the trial court properly refused to allow them to be filed pursuant to OCGA § 9-15-2 (d). Hawkins, supra at 538.

We find no basis in the complaint to establish a justiciable issue of law or fact in support of the declaratory or injunctive relief sought by Mosier. The trial court also correctly refused to allow the filing of these claims.

Judgment affirmed.

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

       Although the name is spelled differently, the same person is the appellant in the prior criminal case and in this case.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A0630.
    OBI v. THE STATE.
    (445 SE2d 561)
   Smith, Judge.

Kenneth Nnadi Obi entered a plea of guilty to three counts of forgery in the first degree, OCGA § 16-9-1, two counts of giving a false name to a law enforcement officer, OCGA § 16-10-25, and two counts of simple battery on a police officer, OCGA § 16-5-23 (e). He was sentenced to one year on each of the forgery counts and twelve months on each of the additional counts, all to run concurrently. He appeals from the denial of his pro se “Motion to Modify Sentence.”

1. The State’s contention that Obi’s appeal should be dismissed as prematurely filed is without merit. Ferry v. State, 210 Ga. App. 321, 322 (1) (436 SE2d 59) (1993).

2. Obi contends that his motion to modify sentence should have been granted on the basis of ineffective assistance of counsel. This contention is without merit. Obi has not sought withdrawal of his guilty plea, although the contentions raised in his motion refer to his counsel’s alleged conduct leading up to entry of the plea. Obi cites no authority for modification of a sentence on the basis of ineffective assistance of counsel resulting in an unwithdrawn plea of guilty.

Decided June 14, 1994.

Gloria D. Reed, for appellant.

Kenneth Obi, pro se.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Even if Obi were seeking to withdraw his plea of guilty or presenting a claim of ineffective assistance of counsel in the context of a motion for new trial, he has pointed to no evidence on the record supporting his contentions. To the contrary, all the evidence on the record is diametrically opposed to the claims that Obi is now making. The trial court questioned Obi extensively and in detail regarding the charges against him and his plea of guilty. Obi responded to all questions consistently with his plea. He affirmed that he understood the nature of the charges against him, the possible punishment, and the assistant district attorney’s recommendation of sentence, which was ultimately adopted by the trial court. He denied any promises of leniency, threats, or coercion, denied having any questions about the plea, and agreed that he was pleading guilty freely and voluntarily. The trial court also questioned Obi’s trial counsel, who stated he had consulted with Obi, explained all of his statutory and constitutional rights, and knew of no reason why Obi should not enter a guilty plea. Finally, the trial court ascertained that Obi had no objection to the manner in which trial counsel had conducted the case.

The trial court’s denial of Obi’s motion to modify his sentence on the basis of ineffective assistance of counsel was not clearly erroneous and must be upheld. See Karvonen v. State, 205 Ga. App. 852, 853 (2) (424 SE2d 47) (1992).

Judgment affirmed.

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

       Obi is represented by counsel on appeal.


author: Blackburn, Judge.

text:
    A94A1163.
    DEPARTMENT OF TRANSPORTATION v. SHARPE et al.
    (445 SE2d 343)
   Blackburn, Judge.

Condemnor, Georgia Department of Transportation (DOT) appeals from a jury verdict and judgment for the condemnees, R. G. Sharpe and Dabney Sharpe, personally and as the administrator of the estate of C. W. Sharpe. The underlying condemnation action went to trial for a determination of the fair market value of 19.289 acres of land and 8,000,000 tons of limestone deposits on the land. The jury awarded $650,000 for the value of the property, including the limestone deposits. On appeal, the DOT asserts that several errors occurred at trial.

1. In its first enumeration of error, the DOT contends that the trial court erred in charging the jury on “peculiar value,” and in failing to give its requested charges on evaluation of expert witness’ opinion and reasonable probability of use of land.

The trial court charged: “You are entitled to consider the peculiar value of property to the owner under certain conditions, but before you consider the peculiar value of property to the owner, you must find that the relationship of the owner to it is peculiar, that is — that its advantages to the owner are more or less exclusive, and would not be likely to apply to another owner.” The jury’s consideration of this charge requires reversal.

“Generally speaking, the measure of damages is the market value of the property to be taken, and when this would give just and adequate compensation to the owner this rule should be applied. But when the evidence shows that the property has some unique and special value to the condemnee other than, or over and above, fair market value, and that fair market value will not afford just and adequate compensation to the condemnee, other criteria than fair market value may be considered in arriving at just and adequate compensation.” (Citations and punctuation omitted.) Macon-Bibb County Water &c. Auth. v. Reynolds, 165 Ga. App. 348, 352 (299 SE2d 594) (1983). Peculiar value is restricted “to property having an existing use which the owner of the property is devoting it at the time it is taken by eminent domain when such land possesses a peculiar value for such use. It must appear, not that the property is peculiar, but that the relationship of the owner thereto is peculiar — its advantages to him more or less exclusive — that is, that it is property having value peculiar to the owner only, and without possible like value to others who might acquire it.” (Citations and punctuation omitted.) Id. at 353. “However, ‘(a)s long as there is an ascertainable market value, no consideration need be given to value peculiar to the owner.’ ” Id.

There is no evidence in the record that the condemnees held any special relationship to the land or that adequate compensation could not be determined by fair market value. Neither was there evidence that the land was used for any peculiar purpose. In fact, the evidence showed the condemnees were not mining the limestone deposits and, had refused to sell the mining rights to a cement company located next to their property. Several experts testified regarding the value of the property and the limestone deposits. The fact that the experts disagreed as to the specific amount, is not evidence that valuation by the fair market value approach would not provide adequate compensation.

“The issue of whether land taken or damaged in an eminent domain proceeding is unique or peculiar is a jury question. [Cit.] But, a charge to the jury on this subject which is correct as an abstract principle of law, if not supported by the evidence, may tend to confuse or mislead the jury and is error which is presumptively harmful to the losing party. [Cits.]” Id. at 353. The condemnees argue that the land was unique in that its location next to a cement company provided higher profits to the cement company due to low production costs. This, however, does not make the land unique, nor does it justify the trial court’s peculiar value charge. See Raiford v. Dept. of Transp., 206 Ga. App. 114 (2) (424 SE2d 789) (1992); Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541 (3) (309 SE2d 816) (1983).

The DOT also contends that the trial court erred by failing to give its requested charge on evaluation of an expert’s opinion and reasonable probability of use of land for a particular purpose. However, having reviewed the trial court’s charge, as a whole, we find that the requested language was adequately covered in the charge given. Kelly v. Scheidt, 209 Ga. App. 357 (433 SE2d 370) (1993).

2. In its second enumeration of error, the DOT contends that the trial court erred in denying its motion for a mistrial or, in the alternative, to exclude Glen Sharpe’s testimony regarding the value of the limestone deposits. Prior to trial, the trial court granted the DOT’s motion in limine to prevent Glen Sharpe from testifying as to a conversation with an official at a South Carolina cement company in which the official stated that the company was paying $1 per ton for limestone. The trial court determined that Sharpe was not an expert witness and should not be permitted to give hearsay testimony regarding value.

At trial, the DOT objected when Sharpe’s attorney asked if the people Sharpe had discussed the value of the limestone with, had discussed the relative location of the mineral deposits to the cement plant. The trial court overruled the objection and stated that, at worst, the testimony would be redundant. Several questions later, Sharpe testified, without objection, that he thought the land and limestone deposits were worth $8,018,000. The DOT moved for a mistrial after the evidentiary portion of the trial was completed. The trial court then instructed the jury “not to consider as evidence, . . . and otherwise disregard that portion of Mr. Sharpe’s testimony wherein he stated that a specific dollar amount or valuation was told to him by a person who did not appear and testify in this trial.”

“The decision whether to grant a mistrial or give a curative instruction ordinarily rests in the trial judge’s sound discretion. . . . Patterson v. State, 192 Ga. App. 449, 452 (3) (385 SE2d 311) (1989). Such rulings will not be disturbed unless the trial court’s discretion is manifestly abused, whether in ruling on a motion for mistrial or in the extent of the curative action, such as admonishing the witness. See Dept. of Transp. v. Lowery, 163 Ga. App. 114, 117 (2) (291 SE2d 573) (1982).” (Punctuation omitted.) Loper v. Drury, 211 Ga. App. 478, 483 (440 SE2d 32) (1993). The trial court did not abuse its discretion; its curative instruction adequately addressed any harm attributable to Sharpe’s testimony.

Decided June 15, 1994.

Michael J. Bowers, Attorney General, Sell & Melton, John A. Draughon, Michelle W. Johnson, for appellant.

Hulbert, Daniel & Lawson, Tom W. Daniel, William R. Jerles, Jr., for appellees.

3. We have reviewed the DOT’s remaining enumerations of error and find them to be without merit.

Judgment reversed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A1223.
    ROLLESTON v. GLYNN COUNTY BOARD OF TAX ASSESSORS.
    (445 SE2d 345)
   Blackburn, Judge.

Appellant, Moreton Rolleston, Jr., an attorney, appealed, pro se, to the Glynn County Board of Equalization the 1992 property reappraisals of two pieces of property he owns on Sea Island, Georgia. A hearing was held by the Board of Equalization on February 10, 1993, and the Board upheld the appraisals. On February 16, 1993, Rolleston appealed to the Superior Court of Glynn County seeking de novo review of the Board’s findings and demanding a jury trial. Rolleston moved to disqualify the assigned judge and all other judges of the Brunswick Judicial Circuit from presiding over his de novo appeal and moved for summary judgment against the Board of Tax Assessors. This appeal arises from the superior court’s orders denying the motion to recuse, deferring ruling on the motion for summary judgment, and remanding the case for a hearing before the Board of Equalization.

The superior court remanded the case for a hearing before the Board of Equalization because the record showed that due to an inadvertent mailing error, Rolleston had not received notice of, and did not participate in, the Board’s original hearing regarding his appeal of the property assessments. The order of the court provided that “the Court finds that this case should be remanded for a hearing before the Board of Equalization. . . . While [Rolleston] seeks summary judgment on the merits of his claim, the Court finds it would be in the public interest to defer ruling on that portion of his motion at this time. Should [Rolleston] prevail on his hearing before the Board of Equalization, this case would become moot. ... In the interest of judicial economy, the Court will permit this case to remain in active status pending the outcome of the administrative proceedings conducted pursuant to this Order.”

Decided June 15, 1994.

Moreton Rolleston, Jr., pro se.

W. Gary Moore, Desiree E. Watson, for appellee.

We find such an order is not a “final judgment” as contemplated by OCGA § 5-6-34 (a) (1), and therefore, an appeal of the order requires an application for interlocutory review. See OCGA § 5-6-34 (b); Earp v. Kranats, 184 Ga. App. 316, 317 (361 SE2d 217) (1987); Hardison v. Booth, 160 Ga. App. 69 (286 SE2d 60) (1981). Indeed, the order itself provides that the case shall “remain in active status” pending the outcome of the Board’s hearing. Likewise, an appeal from an order denying a motion to recuse is not a final judgment and requires an application for interlocutory review. In re Booker, 186 Ga. App. 614 (367 SE2d 850) (1988). As Rolleston has failed to follow the procedures for filing interlocutory appeals, this court is without jurisdiction to consider the appeal and the appeal must be dismissed. See id.

Appeal dismissed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A1283.
    JOHNSTON v. ALMAND.
    (445 SE2d 347)
   Blackburn, Judge.

Appellee, Frances H. Almand, commenced this action against Robert M. Johnston to recover damages for Johnston’s failure to pay a promissory note executed by Johnston and Almand’s son-in-law, Jay Northcutt. The trial court granted summary judgment for Almand, and this appeal followed.

The record shows that prior to December 1, 1989, Johnston and Northcutt agreed to purchase and resell and/or develop a 35-acre tract of land in Brunswick, Georgia. Northcutt was responsible for raising the cash necessary to close the transaction, while Johnston would use his real estate experience and expertise to subdivide the property and sell it in parcels to interested buyers and/or for developing the property. Northcutt approached his mother-in-law, Almand, in an effort to obtain a portion of the funds needed to close the purchase of the property. Both Northcutt and. Johnston spoke with Almand and her banker regarding her borrowing the needed money from her bank and lending the proceeds to Johnston and Northcutt. Prior to the closing of the subject property, Almand borrowed the money and delivered a cashier’s check to Northcutt who delivered it to his attorney for deposit in an escrow account.

At the closing on December 1, 1989, both Johnston and Northcutt signed a document entitled “Agreement Between Parties” acknowledging that Almand had lent them the money for the purpose of purchasing the property and wherein both agreed to repay Almand the principal amount loaned plus interest within six months. The Agreement also provided for additional interest or profits to be paid Almand in the event the property was sold at a profit.

Neither Northcutt nor Johnston have repaid the monies owed pursuant to the Agreement Between Parties. Northcutt has filed under the Federal Bankruptcy Act for protection from creditors, including Almand, and Almand brings this suit against Johnston to recover the total amount owed her.

1. Johnston first contends the trial court erred in granting Almand’s motion for summary judgment because there exist issues of material fact regarding his defense alleging fraud. We disagree.

Johnston asserts that he has no liability to Almand because he was fraudulently induced to sign the Agreement Between Parties. Specifically, Johnston contends Northcutt and his attorney represented to Johnston that the Agreement was not a promissory note, was not intended to be a promissory note, and was not enforceable as a promissory note, but rather was merely an agreement setting forth how any proceeds of the subsequent sale of the property would be distributed. Johnston does not allege, and the record does not reveal, however, that Almand in any way attempted to mislead or defraud Johnston or that Northcutt or his attorney were agents of Almand. Indeed, Johnston deposed he could not recall Almand ever providing him with false or misleading information and that he knew of no facts supporting a fraud claim against Almand. No issue of material fact exists as to Johnston’s fraud defense, and summary judgment was properly granted on this issue. See Cohen v. Northside Bank &c. Co., 207 Ga. App. 536 (3) (428 SE2d 354) (1993); Davis v. Northside Realty Assoc., 165 Ga. App. 96 (2) (299 SE2d 186) (1983).

2. Next, Johnston contends the trial court erred in finding as a matter of law that the Agreement Between Parties was a promissory note and that the terms of said note are clear and unambiguous. This enumeration is also without merit.

(a) Johnston asserts that because the Agreement did not meet the requirements of OCGA § 11-3-104 (the Uniform Commercial Code), it is not a promissory note and is unenforceable. We disagree. The Agreement provides in pertinent part: “Within six months (6) from the date hereof, Northcutt and Johnston shall cause to have the sum of $190,000.00 together with interest at the rate of ONE AND ONE HALF PER CENTUM (1 & 1/2%) over the PRIME RATE (as established by lender Frances Henry Almand has borrowed her funds from) to be paid back to Frances Henry Almand in full.

“In the event said property as hereinafter described has been sold for a price that is greater than the aggregate original purchase price of said property, then, in such event, Northcutt and Johnston shall IN ADDITION TO the above-state [sic] interest rate, pay over to Frances Henry Almand such sum of money as to equal a FORTY PER CENTUM (40%) annualized return on said sum of $190,000.00 pro-rated on the number of days that Northcutt and Johnston have borrowed said monies from Frances Henry Almand. This provision shall apply even after the repayment of the original sum of monies borrowed by Northcutt and Johnston from Frances Henry Almand and shall extend until the final portion of property as described in Exhibit ‘A’ attached hereto has been sold, OR until said 40% annualized return has been paid over to Frances Henry Almand.” We find this language evinces a promissory note as it is “an unconditional contract whereby [Johnston] engages that he will pay the instrument according to its tenor.” (Punctuation omitted.) Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga. App. 747, 749 (426 SE2d 645) (1992); see also Black’s Law Dictionary, p. 1093 (5th ed. 1979) (defining promissory note as “[a] promise or engagement, in writing, to pay a specified sum at a time therein limited, or on demand, or at sight, to a person therein named, or to his order, or bearer”). Additionally, assuming arguendo, the note fails to meet the requirements of a negotiable instrument under the UCC, it remains a contract between Almand, the payee, and Johnston, one of the makers. See Citizens Bank of Blakely v. Hall, 179 Ga. 662, 663 (177 SE 496) (1934); Daniels v. Allen, 118 Ga. App. 722, 726-727 (165 SE2d 449) (1968).

(b) “[T]he construction of [a] contract is a question of law for the court. First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. [Cits.] That is, where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. [Cit.]” Duffett v. E & W Properties, 208 Ga. App. 484, 486 (430 SE2d 858) (1993). We agree with the trial court and find the terms of the Agreement Between Parties clear and unambiguous, and accordingly, summary judgment was properly granted.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

Decided June 15, 1994.

Starkey, Land & Crowley, G. Roger Land, Michael E. Holbrook, for appellant.

Tito Mazzetta, Michael P. Katz, Johnny W. Mason, Jr., for appellee.


text:
    A94A1414.
    KEY v. THE STATE.
    (445 SE2d 349)
   Blackburn, Judge.

The appellant, Edward Daniel Key, and a co-defendant, Jerry Keene, were both indicted for criminal damage to property in the second degree and interference with government property, both charges involving a radio broadcast tower. Prior to trial, the court granted the State’s motion to compel Keene to testify against Key at trial, and Keene was granted immunity from prosecution. Key was convicted of both offenses. His motion for new trial was subsequently denied by the trial court, and this appeal followed. In his sole enumeration of error, Key contends that the trial court erred in denying his motion for directed verdict because the circumstantial evidence produced at trial did not exclude every reasonable hypothesis except that of guilt.

At trial, Officer Wayne Hooks of the Treutlen County Sheriffs Department testified that on the afternoon of January 2, 1992, he began experiencing difficulty in the transmission of radio communications and asked an employee to investigate the problem. The employee later notified him that he needed to come to the broadcast tower where the department’s radio transmitters were located. Upon arrival, the officer noticed that the tower was on the ground and the guy wires of the tower had been disconnected. Scratch marks were located on turnbuckles which secured the wires. The officer was subsequently informed by a teenager who lived in the vicinity of the tower that two men in an older model green Maverick automobile left the tower earlier at a high rate of speed. Officer Hooks knew Keene and was familiar with Keene’s automobile which fit this description.

Officer Hooks and Officer Jim Fullington located Keene at his ex-wife’s residence. Keene was intoxicated and initially denied being at the tower. He later admitted that both he and Key went to the tower to use the bathroom after the men had been looking for bottles around town. Key was found in a bedroom of the home and was also intoxicated. Red clay mud similar to the mud at the tower was on Key’s shoes and clothing. A search of Key’s person for weapons revealed a pair of vise grips and a metal file in his pocket. A twig similar to those surrounding the tower was also found with the vise grips. Both men were subsequently arrested. While in custody and during an additional discussion of the tower incident, Keene stated that he begged Key not to do it. He also stated that he was afraid of Key and that his fear of Key prevented him from informing the officers of the truth about the incident.

Decided June 15, 1994.

At trial, Keene admitted that he had been at the tower with Key. However, he stated that neither he nor Key loosened the guy wires of the tower and that he had been referring to Key’s drinking when he told the officer that he begged Key not to do it. Key did not testify at trial and did not present any evidence in support of his defense.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; an appellate court determines evidence sufficiency and does not weigh the evidence or determine credibility. [Cit.] To support the verdict, circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. [Cit.]” Dworkin v. State, 210 Ga. App. 461, 463 (436 SE2d 665) (1993). “[T]he determination of whether the circumstances are sufficient to exclude every reasonable hypothesis except that of defendant’s guilt is usually made by the jury. . . .” (Citations omitted.) Brooks v. State, 206 Ga. App. 485, 486 (425 SE2d 911) (1992).

In the case sub judice, the State was able to show more than Key’s mere presence at the scene of the crime. The factfinder could find from Key’s possession of vise grips, a metal file, the twig found in the vise grips, in addition to the mud found on Key’s clothing and shoes, that Key did more than drink alcohol and use the bathroom at the tower as testified to by Keene. Any rational trier of fact could have found that Key used the items found on his person as tools in disconnecting the wires, causing damage to property owned by the broadcasting company and the county, in violation of OCGA §§ 16-7-23 and 16-7-24. Moreover, viewing the evidence of this case in a light most favorable to the verdict, any rational trier of fact could have found no reasonable hypothesis except that of Key’s guilt of the offenses charged. Accordingly, the trial court did not err in failing to direct a verdict of acquittal on either charge. Watkins v. State, 191 Ga. App. 325 (1) (382 SE2d 107) (1989).

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

Joe H. Thalgott, for appellant.

Ralph M. Walke, District Attorney, L. Craig Fraser, Assistant District Attorney, for appellee.


author: Judge Harold R. Banke.

text:
    A94A0268.
    INTERNATIONAL LEADBURNING COMPANY v. FORRISTER.
    (445 SE2d 546)
   Judge Harold R. Banke.

Plaintiff Joan S. Forrister brought this wrongful death action against International Leadburning Company as a result of an accident in which her husband, Harry C. Forrister, was crushed by a 16,000 pound lead kettle which rolled from the bed of a tractor-trailer. Defendant moved for summary judgment on the ground that it was Forrister’s statutory employer at the time of his death and, as such, is immune from suit in tort. The trial court denied defendant’s motion for summary judgment, and we granted defendant’s application for interlocutory appeal to consider the sole issue of whether defendant was Forrister’s statutory employer at the time of his death.

The record reveals that Remira, Inc. (“Remira”) entered into a contract with defendant for the refurbishing of a 16,000 pound lead kettle owned by Remira. In its effort to transport the kettle back to Remira in Savannah from its premises in Forest Park, defendant contracted with Heaton Erecting (“Heaton”) to provide a crane to lift the kettle onto a tractor-trailer. Defendant also contracted with Glenn-Lee Trucking, Inc. to transport the kettle to Savannah. Mr. Forrister, a crane operator employed by Heaton, was sent to lift the kettle. After the kettle was lifted onto the trailer, the truck driver realized he did not have the chains and binders necessary to secure the kettle to the trailer in hand; however, before he could obtain the fasteners from a utility box, the kettle rolled off the trailer and crushed Mr. Forrister. After the accident, plaintiff began receiving monthly workers’ compensation payments from Heaton. Plaintiff subsequently filed the instant action against Glenn-Lee Trucking and the truck driver. Defendant was added to the action on the ground that defendant was negligent in the loading and/or supervision of the loading of the kettle onto the trailer.

Relying on OCGA §§ 34-9-8 and 34-9-11, defendant argues that since plaintiff is already receiving workers’ compensation benefits from Heaton, it is immune from liability in tort because defendant was the principal contractor and Mr. Forrister was an employee of its subcontractor and was injured while engaged upon the subject matter of its contract with Remira. Plaintiff contends that defendant was not a contractor because the contract between Remira and defendant was a contract for the sale of goods and defendant was merely the owner of the premises on which the work was performed and Mr. Forrister was injured.

“A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.” OCGA § 34-9-8 (a). “ ‘Since the secondary liability (for workers’ compensation) imposed under this Code section is predicated upon the existence of the principal contractor-subcontractor relationship, this provision of the Compensation Act is not intended to cover all employers who let out work on contract but is limited to those who contract to perform certain work, such as the furnishing of goods and services, for another, and then sublet in whole or part such work. (Cit.)’ ” Yoho v. Ringier of America, 263 Ga. 338, 339 (434 SE2d 57) (1993). “[Ojnly a ‘contractor’ can be a statutory employer and an ‘owner’ cannot be a ‘contractor’ if the contractual obligation of performance is owed to, rather than by, him. An ‘owner’ does not attain ‘contractor’ status under OCGA § 34-9-8 (a) by his active involvement in the enterprise, but only ‘ “in the isolated situation where (he) also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises.” (Cit.)’ . . . [Cit.]” Id. at 341. See also OCGA § 34-9-8 (d).

Without dispute, the evidence demonstrates that defendant was contractually obligated to refurbish Kemira’s kettle. In his deposition, Ian McGregor Jones, defendant’s president, testified that at the completion of the relining of the kettle, defendant was responsible for making the arrangements to have the kettle transported back to Savannah. Freight costs for transporting the kettle to and from defendant’s facilities were borne by Kemira; however, costs associated with removing the kettle from defendant’s building and onto the tractor-trailer by crane were included in the overall price defendant charged Kemira for refurbishing the kettle.

The foregoing demonstrates that defendant subcontracted with Heaton to complete its contract with Kemira, pursuant to which Mr. Forrister was injured while engaged upon the subject matter of the contract on the principal contractor’s premises. Therefore, defendant was both a principal contractor and Mr. Forrister’s statutory employer in accordance with OCGA § 34-9-8, and defendant is entitled to the tort immunity provided statutory employers in OCGA § 34-9-11. See Gunn v. Sims Crane Svc., 182 Ga. App. 24 (354 SE2d 653) (1987). It matters not whether Heaton was an independent contractor, as argued by plaintiff, as the Court in Wright Assoc. v. Rieder, 247 Ga. 496 (277 SE2d 41) (1981) held that an employee of an independent subcontractor may not recover in tort against the principal contractor. Accordingly, the trial court erred in denying defendant’s motion for summary judgment.

Decided June 3, 1994

Reconsideration denied June 16, 1994

Alston & Bird, Gerald L. Mize, Jr., R. Clay Milling II, for appellant.

Mundy & Gammage, John S. Husser, Dennis, Corry, Porter & Gray, Robert E. Corry, Jr., for appellee.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1294.
    SMITH v. HBT, INC.
    (445 SE2d 315)
   Blackburn, Judge.

The appellee, HBT, Inc., a Georgia corporation, brought the instant action seeking damages and injunctive relief against the appellant, Jeff Smith d/b/a South Georgia Agri Supply, based upon Smith’s alleged breach of a written covenant not to compete executed by the parties. Smith responded, asserting several defenses and counterclaims, alleging that the covenant was an unreasonable restraint on trade.

Following an evidentiary hearing on November 3, 1993, the trial court found that the covenant was reasonable in terms of duration, territorial coverage and scope of prohibited activity, and that Smith violated the covenant by calling upon HBT’s customers from a list formerly used by Smith while Smith was employed by HBT as a salesman. The trial court temporarily enjoined Smith from contacting customers shown on HBT’s customer list. Smith directly appealed the trial court’s order to the Supreme Court, and on February 25, 1994, the Supreme Court transferred the appeal to this court for appellate review. We affirm.

HBT is a supplier of nuts, bolts, tools, and farm and industrial supplies throughout south Georgia. The company’s primary method of operation involves direct sales to customers by salesmen from trucks stocked with supplies. The company’s salesmen are provided with a list of customers and the list was developed over a 15-year period. HBT also furnishes its salesmen with a marketing program developed by the company which includes information on the individual supply needs of each customer and the prices of various products.

Smith began working with HBT on March 27, 1989, in the company’s inventory warehouse and was subsequently promoted to the position of a route salesman on May 7, 1990. As a route salesman, Smith was responsible for contacting farmers for sales of agricultural supplies in a 42-county area. Prior to and as a condition of his employment as a salesman, Smith executed the contract not to compete, acknowledging that HBT’s marketing program and customer and client lists were trade secrets that should remain concealed. Smith agreed to use his best efforts to refrain from using or disclosing the confidential information and, based upon the terms of the contract, Smith was enjoined from disseminating the confidential information. All salesmen were required to execute such a covenant because of the marketing information provided to them by HBT.

Under paragraph nine of the contract, Smith specifically agreed not to “compete in any way against HBT either by himself as an individual, or in association with others, incorporated or otherwise, for five (5) years from the date his employment is terminated with HBT by using any facet or part of the heretobefore marketing program or calling on or conversing with or selling any of the clients or customers in the list of customers furnished by HBT in the following described geographical area, to wit: All Georgia counties south of Macon, 1-16 and U. S. Highway 80, a radius of 50 miles around Dothan, Alabama, a radius of 75 miles around Tallahassee, Florida, a radius of 75 miles around Hastings, Florida, all counties in which HBT has previously served and in which HBT has a customer or client.”

Approximately one month after his termination from employment with HBT in July 1993, Smith started his own business, South Georgia Agri Supply, selling agricultural hardware and supplies out of his truck in the south Georgia area using HBT’s marketing program and contacting customers to whom he had sold supplies while employed with HBT. On October 7, 1993, HBT filed the instant action to enforce the terms of the contract and enjoin Smith from violating its terms.

1. Smith initially asserts that the trial court erred in failing to use the proper standard in determining whether the prohibitions contained in the covenant not to compete were enforceable. We disagree.

“While a contract in general restraint of trade or which tends to lessen competition is against public policy and is void (1983 Ga. Const., Art. Ill, Sec. VI, Par. V (c); OCGA § 13-8-2), a restrictive covenant contained in an employment contract is considered to be in partial restraint of trade and will be upheld ‘if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public.’ [Cit.] Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court [cit.], which considers ‘ “the nature and extent of the trade or business, the situation of the parties, and all the other circumstances.” (Cits.)’ [Cit.] A three-element test of duration, territorial coverage, and scope of activity has evolved as a ‘helpful tool’ in examining the reasonableness of the particular factual setting to which it is applied. [Cits.]” W. R. Grace & Co., Dearborn Div. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992).

In the case sub judice, in determining the reasonableness of the covenant at issue, the trial court used the three-element test, and found that the covenant was reasonable. Since the trial court properly considered the appropriate elements in reviewing the reasonableness of the covenant at issue, this enumeration is without merit.

2. Next, Smith maintains that the trial court erred in failing to declare the covenant null and void because the covenant prohibits him from competing “in any way” with HBT, and hence, is too broad. Although this court has held that a restriction of employment in a business “in any capacity” is overbroad and unreasonable, Dunn v. Frank Miller Assoc., 237 Ga. 266, 268 (227 SE2d 243) (1976), this is not an “in any capacity” case. Watson v. Waffle House, 253 Ga. 671, 673 (324 SE2d 175) (1985).

The covenant at issue is narrowly tailored and limits Smith’s activities in using HBT’s marketing program or contacting customers furnished to him by HBT in a specific geographical area. Cf. Uni-Worth Enterprises v. Wilson, 244 Ga. 636 (261 SE2d 572) (1979). Smith is not prohibited from competing in the area with potential customers whose names were not furnished to him while he was employed with HBT and is not prohibited in using a marketing program not provided to him by HBT. However, Smith is temporarily enjoined from using the information supplied to him by HBT in soliciting customers in a competing business in the geographical area.

In Mouyal, supra at 466, the Supreme Court recognized that restrictions relating to areas where a former employee did business on behalf of a former employer are enforceable as a legitimate protection of the employer’s interest. “[T]he employer has a protectible interest in the customer relationships its former employee established and/or nurtured while employed by the employer [cit.], and is entitled to protect itself from the risk that a former employee might appropriate customers by taking unfair advantage of the contacts developed while working for the employer. [Cits.]” Id.

In the case sub judice, the prohibitions on Smith’s activities are specifically limited and sufficiently inform Smith of the limits of his activities. While employed with HBT, Smith gained knowledge of HBT’s marketing program and client list, both of which HBT had a reasonable interest in protecting. Watson, supra. Smith’s reliance on Howard Schultz & Assoc. v. Broniec, 239 Ga. 181 (236 SE2d 265) (1977), is misplaced inasmuch as the covenant therein prohibited Broniec from working in any capacity with a competitor and failed to specify with particularity the prohibited activity, unlike the covenant in the case at bar. Under these circumstances, we cannot say as a matter of law that the covenant was impermissibly broad.

Contrary to Smith’s assertions, the trial court did not “blue pencil” that portion of the covenant prohibiting him from competing with HBT. The court did not find that the covenant was overbroad in protecting HBT’s interest, and hence unreasonable, necessitating the application of the doctrine. More importantly, the blue pencil theory of severability is not applicable to covenants ancillary to employment contracts. Roberts v. Tifton Medical Clinic, 206 Ga. App. 612, 615 (426 SE2d 188) (1992).

3. Next, Smith maintains that the trial court erred in failing to declare the territorial restriction in the agreement unreasonable. We disagree.

“In construing a territorial restriction, we recognize that the reasonableness of the restriction is more dependent upon the facts and circumstances surrounding the case than on the geographic size of the territory. [Cits.]” Mouyal, supra at 465-466. In the present case, the territorial restriction is expressed both in geographic location and by describing a limited number of customers provided to Smith in the materials furnished to him by HBT. See id. This covenant provided Smith with adequate notice of the scope of the prohibitive conduct. See Hart v. Marion A. Allen, Inc., 211 Ga. App. 431 (440 SE2d 26) (1993). Consequently, we cannot say as a matter of law that the territorial restriction was unreasonable for the protection of HBT’s interests in maintaining its customer relationships.

4. Lastly, Smith argues that the trial court erred in determining that the five-year prohibition provided in the contract was reasonable. However, the five-year duration provided in the covenant is definite and not limitless. Cf. ALW Marketing Corp. v. Hill, 205 Ga. App. 194 (422 SE2d 9) (1992). More recently, in Hart, supra, we held that a three-year time limitation in a covenant ancillary to an employment contract was not unreasonable as a matter of law. Considering the specialized nature of HBT’s business and the fact that the covenant is sufficiently limited to apprise Smith of the prohibited conduct, the five-year time period provided in the contract is not unreasonable in protecting HBT’s business interest. Consequently, the trial court did not err in enjoining Smith from engaging in the prohibited conduct.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

Decided June 3, 1994

Reconsideration denied June 16, 1994

Herbert W. Benson, Jason K. Koffman, for appellant.

Mills & Chasteen, Robert W. Chasteen, Jr., for appellee.

       On appeal, all of Smith’s enumerated errors address paragraph nine of the contract not to compete.


author: Andrews, Judge.

text:
    A94A0116.
    HARPER v. THE STATE.
    (445 SE2d 563)
   Andrews, Judge.

Harper appeals his convictions for driving under the influence, driving with a suspended license, hindering a police officer, and failure to produce proof of insurance. The sole enumeration of error is that the court erred in admitting evidence of two prior convictions of DUI because they did not tend to prove identity, course of conduct, or bent of mind.

Viewed in favor of the jury’s verdict, the evidence was that, around 11:00 p.m. on April 2, 1993, a woman walking a dog near the University of Georgia campus heard a noise which sounded like drag racing and screeching of tires. The sound was coming from a nearby intersection. Then, she heard a sound like tires coming up over a curb and then the noise stopped. She took a few steps to a point where she could see the intersection and saw a white truck stopped in the road, facing the wrong direction. As she watched, the truck’s door opened and a man got out of the truck on the driver’s side. He walked to the back of the truck. He then returned to the driver’s door and was standing there when a police car drove up. The man ran when he saw the officer.

Officer Gaines was approaching the intersection when he saw several cars stopped and he went to check the problem. He saw a Chevy Luv white truck pointing in a northeast direction in the southbound lane. A man was standing in the open driver’s door of the truck. Gaines activated his blue lights and the man ran. Although Gaines repeatedly yelled at the man to stop, he did not do so until Gaines caught him. The man, later identified as Harper, refused to cooperate and continued to struggle and curse the officer. Harper smelled of alcohol and his eyes were bloodshot. Officer Shedd arrived and assisted in the arrest. He noticed that both tires on the driver’s side were flat and the wheel rims were damaged. He investigated the scene and discovered black tire marks on the west side of the road and gouges in the concrete curb. A key of the type used by Chevy trucks was found in Harper’s pocket. Harper was read his implied consent warnings and refused to submit to any tests. All officers present were of the opinion he was intoxicated to the point it was less safe for him to drive. The truck bore the license XX 2346.

Decided June 16, 1994.

David W. Griffeth, for appellant.

Harper testified that he had been drinking all day that day and had run into Scott at a local bar. They continued to drink and he asked Scott for a ride. He was the passenger in the Chevy truck when it crashed and Scott told him he was going to a friend’s house to get help. Scott opened the driver’s door and got out and Harper followed him. He was standing there when the officer drove up. Scott testified and supported Harper’s contentions. He said the left tires “froze,” making the truck impossible to drive. He went to his friend’s, but no one was home so he walked on to his house where he got a car and returned about 45 minutes later. Although neither the truck nor Harper were there, Scott did not make any calls to the police or hospitals, but merely returned home.

Although nobody actually saw Harper driving the truck, there was sufficient circumstantial evidence from which the jury could conclude that he did. Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); Griffis v. State, 163 Ga. App. 491 (1) (295 SE2d 197) (1982); Lawrence v. State, 157 Ga. App. 264 (1) (277 SE2d 60) (1981).

On March 19, 1992, an Athens police officer saw a white Chevy Luv truck, license XX 2346, weaving across the lane divider around midnight. He stopped Harper who evidenced symptoms of drunkenness. Harper registered .28 on the Intoximeter. On May 26, 1992, in Summerville, an officer received a report of a gas drive-off by a small white truck about 3:00 a.m. The officer shortly spotted the white Chevy Luv truck, license XX 2346, weaving and crossing the center-line. Harper was driving and could produce no license. Harper smelled of alcohol and had difficulty exiting the truck. The officer attempted one field test, but Harper nearly fell into the road attempting it. He registered .25.

These acts were admissible to prove identity, bent of mind, and course of conduct. Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992).

Judgment affirmed.

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

Kenneth W. Mauldin, Solicitor, for appellee.

       To the extent that the enumeration contends that introduction of the like acts was “prejudicial,” this objection is too vague and general to present any question for determination. Benford v. State, 189 Ga. App. 761, 768 (1) (377 SE2d 530) (1989).


text:
    A94A1351.
    FIREARMS TRAINING SYSTEMS, INC. v. SHARP.
    (445 SE2d 538)
   Blackburn, Judge.

This direct appeal arises from the attempted enforcement of a restrictive covenant contained in a Property Rights, Non-Disclosure Agreement and Agreement Not to Compete executed by appellee Sharp while employed by the appellant, Firearms Training Systems, Inc., as the director of Firearms’ law enforcement sales department. The trial court enjoined Firearms from enforcing the covenant.

Generally, the Supreme Court has exclusive appellate jurisdiction in matters of equity. Ga. Const, of 1983, Art. VI, Sec. VI, Par. III. However, although the case presented involves injunctive relief, “no substantive issues of equity are involved in th[is] [appeal]. Resolution of the [appeal] turns instead on the question of the validity and enforceability of the contract [provision] restricting competition, which is a question of law. [Cit.]” Pittman v. Harbin Clinic Professional Assn., 210 Ga. App. 767, 768 (437 SE2d 619) (1993). See also Hart v. Marion A. Allen, Inc., 211 Ga. App. 431 (440 SE2d 26) (1993); Smith v. HBT, Inc., 213 Ga. App. 560 (445 SE2d 315) (1994).

Firearms is a Delaware corporation in the business of manufacturing and distributing interactive video simulators used in training law enforcement and military personnel worldwide. On January 29, 1992, Sharp signed the agreement at issue. Paragraph 10 of the agreement provided that “[a]fter termination of [his] employment with [Firearms], [Sharp] w[ould] not, for a period of three years, directly or indirectly engage in competition with [Firearms]; that is, [Sharp] w[ould] not enter or engage in the business of developing or selling electronic firearms systems (whether intended for training purposes, amusement purpose or any purposes) in the capacity [Sharp] served during [his] relationship with [Firearms] (or any capacity) either individually, as a partner or joint venture, as an employee, or as an agent, officer, director, or shareholder of any entity or person.” Sharp further agreed not to disclose any trade secrets that he obtained while working with Firearms. The agreement also provided that Firearms’ business activities and Sharp’s sales responsibilities were worldwide, but Sharp testified that his sales activities were limited to the continental United States.

Sharp was terminated on May 12, 1993, and subsequently sought employment with Caswell International Corporation, a corporation involved in worldwide sales of interactive firearms training systems. However, Caswell refused to hire Sharp unless the covenant at issue was declared invalid or Firearms refused to enforce it. As a result, Sharp filed the instant action seeking a declaratory judgment and injunctive relief.

Firearms initially asserts that the trial court erred in concluding that the language contained in the covenant not to compete is over-broad, rendering the covenant unenforceable. The corporation further maintains that the restrictions contained therein are sufficiently narrow to support its validity. We disagree.

“While a contract in general restraint of trade or which tends to lessen competition is against public policy and is void (1983 Ga. Const., Art. Ill, Sec. VI, Par. V (c); OCGA § 13-8-2), a restrictive covenant contained in an employment contract is considered to be in partial restraint of trade and will be upheld ‘if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public.’ [Cit.] Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court [cit.], which considers ‘ “the nature and extent of the trade or business, the situation of the parties, and all the other circumstances.” (Cits.)’ [Cit.] A three-element test of duration, territorial coverage, and scope of activity has evolved as a ‘helpful tool’ in examining the reasonableness of the particular factual setting to which it is applied. [Cits.]” W. R. Grace & Co., Dearborn Div. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992).

In the case sub judice, the covenant prohibits Sharp from working in any capacity in the world in the business of developing or selling electronic firearm systems for the three-year period following his termination. “[A]n employment contract which prohibits the employee, upon leaving such employment, from obtaining employment with a competitor in any capacity is unreasonable. . . . [Such a covenant] impostes] greater limitations on the employee than [are] necessary for the protection of the employer. [Cit.]” Dunn v. Frank Miller Assoc., 237 Ga. 266, 268 (227 SE2d 243) (1976). See also Uni-Worth Enterprises v. Wilson, 244 Ga. 636 (261 SE2d 572) (1979); Roberts v. Tifton Medical Clinic, 206 Ga. App. 612 (426 SE2d 188) (1992).

Moreover, the covenant in the case at bar restricts Sharp from working with any competitor in the world although Sharp’s activities with Firearms were limited to sales in the United States. “A territorial limitation is necessary to give the employee notice of what constitutes a violation of the restrictive covenant, and must specify with particularity the territory in which the employee is restricted.” (Citations omitted.) Mouyal, supra at 465. “A restriction relating to the area in which the employer does business in generally unenforceable due to overbreadth, unless the employer can show a legitimate business interest that will be protected by such an expansive geographic description.” Id. at 466. Firearms cannot justify the unreasonably extensive geographic limitation placed upon Sharp which substantially limits his right to earn a living. See id.; Osta, supra.

Decided May 26, 1994

Reconsideration denied June 6, 1994

Herbert P. Schlanger, for appellant.

Barry A. Karp, for appellee.

Consequently, the trial court did not err in concluding that the covenant at issue is an unreasonable restraint on trade and therefore, unenforceable because it is overbroad in terms of territorial coverage and the scope of the prohibited activity.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

       We likewise exercised jurisdiction in Osta v. Moran, 208 Ga. App. 544 (430 SE2d 837) (1993), a direct appeal of a trial court’s denial of injunctive relief based upon the invalidity of a covenant not to compete contained in an employment contract.

       Sharp does not challenge the portion of the agreement concerning the nondisclosure of trade secrets.


text:
    A94A0714.
    CARR v. FARMER.
    (445 SE2d 350)
   Andrews, Judge.

Carr and Ridgeview Institute, Inc. appeal from the order entered by the superior court below directing that Ridgeview “produce patient information and records . . . pursuant to the Subpoena Duces Tecum issued by [the] Circuit Judge of Calhoun County, Alabama.”

A wrongful death action was instituted against Dr. Carr in the Calhoun County Circuit Court by the representatives of the deceased Pugh, alleging malpractice.

During discovery in the Alabama litigation, Dr. Carr admitted that he had had a drug abuse problem during certain periods of time, but denied that he was suffering from such abuse at the time of the alleged malpractice. He acknowledged having been admitted to Ridgeview, located in Cobb County, for treatment.

On August 8, 1991, two documents were filed in the Alabama Circuit Court, both having been signed by that court on July 15, 1991. One was an order purporting to authorize disclosure of patient records “pursuant to 42 CFR subpart E., § 2.62 - 2.66.” It ordered that “Ridgeview Institute and [its drug and alcohol unit], pursuant to a lawfully issued subpoena by a court of competent jurisdiction, produce and send directly to [the Alabama] Court for in camera inspection, all documents and records in their possession relative to the medical treatment and care of [Carr] between 1986 and 1987.” The second was a document bearing the Alabama case heading and entitled “Request of the Superior Court of Cobb County, Georgia To Issue Subpoenas Duces Tecum For Medical Records” in which the Alabama court petitioned the Cobb County court to issue a subpoena.

Apparently, Carr attempted to obtain from the Alabama Supreme Court a writ of mandamus to prevent disclosure of his medical records, this being the only procedural mechanism for interlocutory review pursuant to Ala. Code § 12-22-6. While no writ of mandamus issued, that does not preclude raising the issue on any final appeal. Id.

On November 15, 1991, the Alabama trial court signed an order requesting the Cobb County Superior Court to “issue an order to Ridgeview Institute, Inc., compelling production of said documents, pursuant to the lawfully issued and executed Subpoena Duces Tecum served upon Ridgeview Institute, Inc.”

On June 29, 1993, the Cobb County Superior Court issued an order directing the parties to the Alabama litigation and Ridgeview Institute, Inc. to appear and show cause why that court should not issue a subpoena to Ridgeview. Although there is nothing in the record to show that this order was served upon Ridgeview, counsel did receive a copy of the order, apparently from Carr’s attorney, and did appear to argue at the appointed time, following which the order here appealed was entered.

1. Ridgeview is an institution covered by 42 USCA § 290dd-2 (b) (2) (C) (the provisions of former § 290dd-3 are, pursuant to the 1992 Amendments to Pub. L. 102-321, effective October 1, 1992, included in § 290dd-2). That section and the regulations promulgated thereunder provide that, absent consent of the patient, records of such an institution can be disclosed “[i]f authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor, including the need to avert a substantial risk of death or serious bodily harm.” 42 CFR § 2.64 (b) provides that “[t]he patient and the person holding the records from whom disclosure is sought must be given: (1) Adequate notice . . . and (2) An opportunity to file a written response ... or to appear. ...”

Decided June 16, 1994.

Downey, Cleveland, Parker & Williams, Joseph C. Parker, Scott D. Clay, for appellant.

Troutman Sanders, Patricia A. Murtaugh, for appellee.

There is no showing in the record that any notice or opportunity to respond was received by Ridgeview before the entry of the Alabama orders. Although Georgia counsel did write a letter after the entry of the orders asserting the issue of privilege, the initial Alabama proceedings were not in compliance with applicable federal law.

2. Further, the Alabama order sought to be enforced by Georgia courts is not one entitled to full faith and credit. Even if so entitled, there was a failure of adequate proof , of the Alabama proceedings for purposes of full faith and credit.

(a) “The requirement that each state give full faith and credit to the records and proceedings of all other states applies ‘only to the records and proceedings of courts so far as they have jurisdiction. . . .’ [Cit.] ‘(C)ollateral attack of a foreign judgment based on lack of personal jurisdiction is precluded only if the defendant has appeared in the foreign court. (Cits.) . . .’ ” Toledo Center Floor Covering v. Richfield Carpet Mills, 176 Ga. App. 400 (1) (336 SE2d 320) (1985). See Atlantic Nat. Bank of Fla. v. Chance, 194 Ga. App. 634, 636 (391 SE2d 677) (1990) (physical precedent). In the Alabama proceeding, there was no appearance by Ridgeview, a non-party, and that court lacked personal jurisdiction over Ridgeview. Signet Bank/Virginia v. Tillis, 196 Ga. App. 433, 434 (396 SE2d 54) (1990); A.A.A., Inc. v. Lindberg, 172 Ga. App. 753, 755 (324 SE2d 480) (1984).

“[Proceedings before a court not having jurisdiction ... are void and may be treated as a nullity.” Culwell v. Lomas & Nettleton Co., 145 Ga. App. 519, 522 (244 SE2d 61) (1978).

(b) Also, there was no proper authentication or proof of the Alabama orders for purposes of full faith and credit. OCGA § 24-7-24; Van Buskirk v. Great American Bank, 175 Ga. App. 101 (332 SE2d 394) (1985); Moore v. Sanford, Adams, &c., 171 Ga. App. 549, 550 (1) (320 SE2d 394) (1984).

Judgment reversed.

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

       Ridgeview Institute, Inc., pursuant to its motion under OCGA § 5-6-1, was allowed to appear before this court as an interested third party.

       42 CFR Ch. I, Subpart E.

       The mailing by Georgia counsel of the letter to the Alabama court asserting privilege in an after-the-fact effort to prevent the court’s attempt to require production of medical records does not amount to an “appearance.”


author: Andrews, Judge. Beasley, Presiding Judge,

text:
    A94A0896.
    SNOW v. THE STATE.
    (445 SE2d 353)
   Andrews, Judge.

Snow was tried and convicted of six counts of child molestation, one count of aggravated child molestation, one count of aggravated sodomy and one count of incest. Snow enumerates two errors on appeal.

There was ample evidence at trial that Snow repeatedly molested his two granddaughters in various ways over a period of several years.

1. In his first enumeration, Snow claims that the trial court erred by allowing the State to repeatedly elicit evidence from him and other witnesses concerning his attempt to plead guilty in magistrate court at an initial appearance hearing and his subsequent withdrawal of any such pleas. Citing OCGA § 17-7-93 (b), Snow contends that the admission of such testimony constituted reversible error.

Snow, his wife and an investigating police officer testified regarding the testimony in magistrate court, but defense counsel raised no specific objection to such testimony. Defense counsel raised a general objection to “any statement” with respect to Snow’s testimony about the circumstances under which his previous statements were made, but this objection was not based on the reasons presented here.

Later, Snow was asked a question about his guilty plea and defense counsel objected that the question was “improper.” Thereupon the prosecuting attorney asked another question. Snow then explained that he had stated that he was guilty in magistrate court because he did not want to subject his granddaughters to litigation. In response to this explanation, the prosecuting attorney stated: “Isn’t that something,” defense counsel objected, and the court instructed the prosecutor to refrain from commenting. Snow never raised the specific objection raised here during the fairly extensive testimony regarding his statements before the magistrate court.

Pretermitting the issue of whether Snow’s statements here constituted a “guilty plea” within the purview of OCGA § 17-7-93 (b), we find no merit to this enumeration. At most, a general objection to the evidence was raised. “It has been held many times that a general objection is too vague and indefinite to present any question for decision either by the trial court or by the appellate courts.” (Citations and punctuation omitted.) Williams v. State, 207 Ga. App. 408 (427 SE2d 869) (1993). To the extent that Snow argues that the trial court should have independently intervened under OCGA § 17-8-75, in the absence of an objection, we find no merit in this contention. See Earnest v. State, 262 Ga. 494 (1) (422 SE2d 188) (1992). Accordingly, any alleged error was waived. See Wadsworth v. State, 209 Ga. App. 333, 335 (6) (433 SE2d 419) (1993). Moreover, in light of the overwhelming evidence against Snow, we find it highly improbable that any alleged error in this regard contributed to the verdict. Compare Thomas v. State, 248 Ga. 247 (11) (282 SE2d 316) (1981).

2. Secondly, Snow claims that the court erred by admitting similar transaction evidence in that such testimony involved similar acts which were too remote in time.

The evidence to which Snow objects was the testimony of his daughters. One daughter testified that Snow had molested her over the course of several years, from the time she was about 11 years old until she was about 16, which was 22 years before the trial. She recalled that Snow had suggested that she have sex with him as recently as three to five years before the trial.

Snow’s other daughter also testified to Snow’s molestation of her, which began 27 years prior to her testimony, when she was 12 years old. Snow’s molestation of this daughter continued until 11 years prior to her testimony, when she was 28. With both daughters, the pattern of molestation was repeated and was similar to the pattern of molestation committed on the granddaughters.

Citing Gilstrap v. State, 261 Ga. 798 (1) (410 SE2d 423) (1991), Snow argues that the trial court erred in admitting the testimony. In Gilstrap, the Supreme Court determined that evidence of similar transactions 31 years in the past was too remote.

Although we are mindful of the holding of Gilstrap, we are also aware of Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985) and Cooper v. State, 173 Ga. App. 254, 255 (1) (325 SE2d 877) (1985), “where lapses of 11 years and 19 years, respectively, did not prohibit the admission of evidence of similar transactions.” Moore v. State, 207 Ga. App. 412, 416 (1) (b) (427 SE2d 779) (1993) (in which similar transaction evidence from 22 years before was admissible). Moreover, in the instant matter, in contrast to Gilstrap, Snow’s molestation of his daughters was not limited to an isolated time period 22 or 27 years ago. Instead “the evidence shows appellant’s almost continuous course of identical conduct over the entire [27]-year period immediately preceding” the acts of molestation of his granddaughters. Starnes v. State, 205 Ga. App. 882, 883 (1) (424 SE2d 4) (1992); see also Cooper, supra; Bryson v. State, 210 Ga. App. 642 (2) (437 SE2d 352) (1993). Furthermore, with both of his daughters, Snow’s most recent acts were between eleven and three years before trial.

“Obviously many years are going to elapse between the time such acts occur with his daughters and the time such acts occur with the children of one of those daughters.” Cooper, supra at 255. “Under such circumstances, we do not believe the lapse of time between the independent crimes and the offenses charged is a determinative factor which would make such evidence inadmissible. [Cit.] The lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility.” Cooper, supra at 255. “It follows that here, as in Cooper, the evidence was properly admitted as relevant to show appellant’s plan, scheme, bent of mind and course of conduct, whereby he would subject his young female relatives to his acts of sexual abuse.” Starnes, supra at 883-884.

Decided June 16, 1994.

Husby, Myers & Stroberg, Edwin A. Capitan, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur in Division 1 because OCGA § 17-7-93 does not, by its terms or its construction heretofore, apply to statements made in the initial appearance in the magistrate court. Although a statement to the contrary is made in Jones v. State, 174 Ga. App. 783, 784 (1) (331 SE2d 633) (1985), it is dicta. Compare Shoemake v. State, 213 Ga. App. 528 (445 SE2d 558) (1994).

I fully concur in Division 2.


author: Birdsong, Presiding Judge.

text:
    A94A1117.
    GUDE v. THE STATE.
    (445 SE2d 355)
   Birdsong, Presiding Judge.

Jessie James Gude appeals his conviction for burglary.

Law enforcement officers in Monticello, responding to an alarm at a doctor’s office, saw appellant coming around the side of the doctor’s building. When appellant saw the officers, he ran. Several officers chased appellant for several minutes before he was caught. Appellant’s left arm was cut and had been bleeding. Nothing was taken from the doctor’s office, but a window was broken; blood was found inside the building at the window, the curtains were pulled from inside the window to the outside, and a piece of black cloth was hanging from inside the window to the outside. This piece of cloth matched the black jersey which appellant was wearing when he was apprehended.

Appellant enumerates two errors on appeal. Held:

1. The trial court did not err in denying appellant’s motion for directed verdict of acquittal on the burglary count. Appellant contends there is no evidence he entered the building, but a jury may find that he did enter the building, as blood was found on the floor inside the window, the curtains were hanging outside the broken window from the inside as if pulled through by someone leaving through the window, and part of appellant’s jersey was found hanging from inside the window. A directed verdict of acquittal is authorized only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions, demands a verdict of acquittal. OCGA § 17-9-1. That is, a directed verdict of acquittal is authorized only where there is no evidence to support a verdict of guilt. Mathis v. State, 204 Ga. App. 896 (420 SE2d 788). That is not the case here.

2. The trial court did not err in requiring appellant to be shackled with leg irons during trial and in the jury’s presence.

A separate pretrial hearing was held on the State’s request that appellant be shackled during trial because he was a “clear escape risk.” The sheriff testified there was never a time that appellant had not run when he had a chance. Appellant had escaped twice from jail: once over a razor-wire fence, and a second time, he was mopping in the cell block and ran out just as the deputy opened the gate. He also ran to escape custody when he was a juvenile, even though he was handcuffed.

Appellant asserted below and argues here that he could not easily run from the courtroom, as there were only two doors to it: a revolving door which was difficult to exit under any circumstances, and one that led into a holding room which could be locked from the outside. Appellant also argued that deputies could be placed at the doors.

It is well established that the accused while in the presence of the jury shall be free of indicia of guilt such as shackles or prison garb, or being surrounded by uniformed security personnel or anything that might infringe on the presumption that he is innocent; but at trial, where there is good and sufficient cause, the court has discretion to require a defendant to be shackled. Abuse of discretion is the test on appeal. Dennis v. State, 170 Ga. App. 630 (317 SE2d 874). See Thomas v. State, 171 Ga. App. 306, 308 (319 SE2d 511), where we held the trial court did not abuse its discretion in requiring the defendant to wear leg irons at trial, because he had escaped thrice including “once from the courthouse while in leg irons.”

In this case, evidence showed that appellant would run whenever he got a chance. In similar cases we have refused to find an abuse of discretion in the trial court’s ruling. See Culbertson v. State, 193 Ga. App. 9 (1) (386 SE2d 894); Thomas, supra. It may seem to us unlikely that appellant would get such a “chance” to run, for the only unlock-able door out of the courtroom was difficult to exit in any circumstance, but the trial court is more familiar with its courtroom than we are. This was the trial court’s decision. The trial court apparently did not consider posting additional guards at that door or at the stairs to the first floor, nor did it consider any alternative means of restraint, but the trial court knows its courtroom and its resources better than we. In the circumstances of this case, the trial court did not abuse its discretion in failing to consider alternative security measures before placing appellant in leg irons in his appearance before the jury, particularly when appellant did not insist or complain.

Decided June 16, 1994.

Timothy L. Lam, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellee.

When the trial court ruled that it would put appellant in leg irons, it promised to give the jury curative instructions, and cautioned both the State and the defendant to remind him of this promise at trial. See Hicks v. State, 200 Ga. App. 602, 604 (409 SE2d 82) (physical precedent only) and cases cited. No curative instructions were given, but defense counsel did not remind the trial court to give curative instructions. The trial court’s failure to give curative instructions is the fault of appellant. Moreover, at the end of the jury charge, the trial court asked if there were objections and appellant’s counsel said there was none. Appellant cannot refrain from making a required objection and ignore what he perceives to be an injustice, take a chance on a favorable verdict, and then complain on appeal. Ingram v. State, 211 Ga. App. 252 (438 SE2d 708).

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A1199.
    MacDOUGALD v. PHILLIPS.
    (445 SE2d 357)
   Birdsong, Presiding Judge.

This is the second appearance of this case before an appellate court. In the first appeal, our Supreme Court affirmed the trial court’s dismissal of MacDougald’s action for quo warranto, but reversed the award to Phillips of $200 in attorney fees under OCGA § 9-15-14 as the award did not contain findings of fact necessary to support such an award. Consequently, the Supreme Court remanded the case to the trial court for findings that would support the award, or to vacate the award. See MacDougald v. Phillips, 262 Ga. 778 (425 SE2d 652).

On remand, the trial court found that the parties knew each other well and had taken positions contrary to the other on many occasions and that there was animosity between the parties; that MacDougáld did not occupy an official position that would obligate him to seek the removal of Phillips from his office; that MacDougald’s actions must be viewed as a personal attack; and that an action of quo warranto would not lie in this case. Based upon these findings of fact, the trial court reached the conclusion of law that Phillips was entitled to recover $200 for attorney fees for services prior to the appeal and $5,000 “as attorney fees for all other matters including the appeal and any and all matters subsequent thereto including the hearing” after the remand by the Supreme Court.

MacDougald now contends the trial court erred by awarding these fees because a trial court has no jurisdiction to award attorney fees under OCGA § 9-15-14 for services performed on appeal and because the trial court failed to make the findings required to support an award under OCGA § 9-15-14 or vacate the award as directed by the Supreme Court. Held-.

1. Considering first whether the findings by the trial court will support an award under OCGA § 9-15-14, we note that the Supreme Court’s opinion referred the trial court to its earlier decision in Porter v. Felker, 261 Ga. 421, 422 (405 SE2d 31). In Porter, the Supreme Court held that an order awarding attorney fees must include findings of conduct that authorize an award under OCGA § 9-15-14. Attorney fees may be awarded under OCGA § 9-15-14 (a) against a plaintiff who has asserted a frivolous action with “respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim,” and under OCGA § 9-15-14 (b) when the court finds that a plaintiff “brought ... an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment... or [the] party unnecessarily expanded the proceeding by other improper conduct.” Further, “[a]s used in this Code section, ‘lacked substantial justification’ means substantially frivolous, substantially groundless, or substantially vexatious.” OCGA § 9-15-14 (b).

The findings of fact entered by the trial court do not support an award under OCGA § 9-15-14. They neither mention the criteria established in OCGA § 9-15-14 for such awards, nor relate MacDougald’s actions to the standards in the Code section, nor relate the standards to MacDougald’s actions. Further, the findings do not mention or discuss whether there was a complete absence of any justiciable issue of law or fact; whether there was substantial justification for the action, or whether the action was substantially frivolous, substantially groundless, or substantially vexatious. Also, none of the factors discussed in the trial court’s findings authorizes an award under OCGA § 9-15-14. See Hamm v. Willis, 201 Ga. App. 723, 726-727 (411 SE2d 771); Felker v. Fenlason, 201 Ga. App. 207, 208-209 (410 SE2d 326). Consequently, the award of attorney fees under OCGA § 9-15-14 is not authorized (Keeler v. Keeler, 263 Ga. 151, 152 (430 SE2d 5); Porter v. Felker, supra), and the award must be vacated. MacDougald v. Phillips, supra; Coker v. Mosley, 259 Ga. 781, 782 (387 SE2d 135).

Decided June 16, 1994.

McLaughlin, MacDougald & Hendon, Daniel MacDougald III, Johnson & Montgomery, Harry W. MacDougald, for appellant.

McKee & Barge, Patrick W. McKee, Christopher J. Ramig, for appellee.

2. As we have held in Division 1, that the trial court’s findings of fact do not support the award of any attorney fees, MacDougald’s contention that the trial court improperly awarded attorney fees for services performed on appeal is moot.

Judgment reversed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A0710.
    ROBINSON v. THE STATE.
    (445 SE2d 564)
   Blackburn, Judge.

Eddie Jerome Robinson was charged with and convicted of one count of aggravated child molestation and one count of child molestation.

1. On appeal, Robinson contends the trial court erred in denying his motion in limine to exclude evidence of unindicted prior acts between himself and the victim. The court denied Robinson’s motion and determined that the evidence was admissible as evidence of the offense charged in Count 2 of the indictment because the date alleged in Count 2 was not an essential averment thereof and that the prior acts occurred within the applicable statute of limitation. See Robinson v. State, 202 Ga. App. 576, 577 (1) (415 SE2d 21) (1992); Garrett v. State, 188 Ga. App. 176 (2) (372 SE2d 506) (1988). Robinson asserts that because the unindicted prior acts were entirely different acts than those specifically charged in the indictment, such evidence was inadmissible as direct evidence of the offense charged and improperly admitted at trial. We agree and reverse.

An “ ‘indictment charging the commission of an offense, without showing that the date alleged therein is an essential averment, covers any offense of the nature charged within the . . . period of limitation, including the date(s) alleged, and the State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period, although punishment upon conviction is limited to a single offense, and acquittal or conviction, upon proper plea, operates as a bar to further prosecution for any offense of the nature charged within the period.’ [Cit.]” Pittman v. State, 179 Ga. App. 760 (1) (348 SE2d 107) (1986); accord Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58) (1987); Burnett v. State, 202 Ga. App. 563, 564 (415 SE2d 43) (1992). However, if “the indictment charged that the molestation was committed in a specific manner, and the similar offense was committed in a different manner than the offense charged [,] . . . the similar offense [is] not admissible as direct evidence of the offense charged in the indictment.” Burnett, 202 Ga. App. at 564; see also Story v. State, 196 Ga. App. 590, 591 (396 SE2d 547) (1990).

Decided June 17, 1994.

Ronald B. Hatcher, for appellant.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Leonora Grant, Assistant District Attorneys, for appellee.

In the case at bar, the date alleged in Count 2 of the indictment was not an essential averment thereof. However, Count 2 charges Robinson with child molestation committed in a specific manner. Therefore, we are constrained to find that the evidence of the unindicted prior acts committed in an entirely different manner was inadmissible as direct evidence of the offense charged. See Story, supra.

2. We have reviewed Robinson’s additional enumerations of error and find them to be without merit.

Judgment reversed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

       No fatal variance between the allegata and the probata exists as evidence of the specific acts charged in the indictment was presented by the State.

       Such evidence may have been admissible as similar transactions, however, the State and trial court failed to meet the requirements of Uniform Superior Court Rule 31 and the dictates of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).


author: Pope, Chief Judge.

text:
    A94A1116.
    JOHNSTON v. THE STATE.
    (445 SE2d 566)
   Pope, Chief Judge.

Defendant Richard Johnston appeals his conviction for aggravated child molestation. The record reveals that the defendant was indicted on this charge on May 5, 1993. The record further reveals that the last act for which defendant was indicted occurred in May 1985. OCGA § 17-3-1 (c) requires that prosecution for such crimes be commenced within seven years after the commission of the crime. The State concedes on appeal that defendant was not indicted within the statutory limitation period. It is most unfortunate that we must reverse the conviction in this case on this basis because the evidence was otherwise sufficient to support defendant’s conviction.

This case gives us an opportunity to reconsider our earlier decision in Sears v. State, 182 Ga. App. 480 (356 SE2d 72) (1987). In Sears, we held that infancy does not toll the running of a statute of limitation period. In reaching that conclusion we were guided by what was then the expression of legislative intent concerning statutes of limitation. At that time our legislature had provided no exceptions or conditions to tolling the applicable statute of limitation. Id. at 482. As is discussed supra, in footnote one, our legislature recently adopted OCGA § 17-3-2.1 which tolls the limitation period for certain offenses against minors, including child molestation and aggravated child molestation, until the victim reaches the age of 16.

This case highlights why such a tolling period is necessary for certain crimes against minors. In this case the victim was between three and five years of age at the time defendant repeatedly raped him. Because the victim’s knowledge was imputed to the State and since the last act occurred on or before May 1985, defendant’s indictment in 1993, when the victim was only twelve years old, was untimely. It is unlikely that a victim that young would have any conception he was the victim of a crime and would at most understand that the defendant hurt him; yet through a legal fiction we must assume the State had knowledge of these crimes at that time. In cases such as this, by the time the victim is actually able to understand or remember what happened to him, it is highly probable that the applicable statute of limitation period has expired. Without a tolling provision in such cases a defendant is far less likely to be convicted of a crime committed against a child if his victim is very young at the time of the crime. Certainly that is not a situation that should be promoted or encouraged.

Decided June 17, 1994.

Gilbert J. Murrah, for appellant.

J. Brown Moseley, District Attorney, for appellee.

OCGA § 17-3-2.1 evinces the legislature’s intent that statutes of limitation for certain crimes against minors should be tolled by the infancy of the victim until such time as the victim is 16 years of age. In light of the legislature’s decision that the limitation period for certain crimes should vary depending on the age of the victim, we now overrule our decision in Sears v. State to the extent the holding in that case is applicable to those crimes designated in OCGA § 17-3-2.1. As of the date of this opinion, infancy shall toll the statute of limitation for those crimes until the victim is 16 years of age or until the violation is reported to law enforcement authorities, whichever is earlier. Because the limitation period in this case has already expired and cannot now be revived, our decision to overrule Sears v. State does not affect the judgment in this case. 22 CJS, Criminal Law, § 197; see Sobiek v. Superior Court of San Mateo County, 28 Cal.App.3d 846 (106 Cal. Rptr. 516, 519) (1st Dist. 1972).

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur in judgment only.

       We note that our legislature recently adopted OCGA § 17-3-2.1 which extended the limitation period for certain offenses, including child molestation and aggravated child molestation, to provide that the limitation period does not begin to run until the victim has reached the age of 16. That Code section only applies to the designated offenses that are committed on or after July 1, 1992; therefore, the statute is not applicable to this case.


text:
    A94A0834.
    STEPHENS v. ESPY.
   Pope, Chief Judge.

Plaintiff in this medical malpractice action appeals the trial court’s dismissal of her action for failure to file her complaint within the applicable two-year limitation period. See OCGA § 9-3-71 (a).

Defendant was allegedly negligent in performing surgery on December 27, 1990. On December 21, 1992, plaintiff’s complaint was ready to be filed in the Cobb County Superior Court. Janet W. Prince, an employee of plaintiff’s counsel, called the Cobb County Superior Court Clerk, told him that she had a complaint to file and asked where it should be mailed. The clerk instructed her to mail it to his official address: Superior Court Clerk’s Office, 32 Waddell Street, Marietta, Georgia, 30090. Prince mailed the complaint to that address by Express Mail on December 21, 1992. The following day she verified with the post office that the package had in fact been delivered; and she subsequently received a proof of delivery form, which is included in the record, showing that the package was delivered and signed for by “P. Millsapp” on December 22, 1992, well within the limitation period. Jay C. Stephenson, the superior court clerk, testified that mail sent to his official address actually goes to a county mail room, where it is collected and periodically picked up by his employees. For some reason, however, plaintiff’s complaint, which was delivered on December 22, 1992, was not marked as filed by the clerk’s office until December 30, 1992.

Decided May 26, 1994

Reconsideration denied June 20, 1994

B. Andrew Prince, for appellant.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Lance D. Lourie, Neal H. Howard, for appellee.

Plaintiff argues that the trial court erred in dismissing her action as untimely, and we agree. See Lavan v. Philips, 184 Ga. App. 573 (362 SE2d 138) (1987). In Lavan, it was undisputed that a complaint was delivered to the clerk’s official receptacle for the receipt of mailed pleadings (in that case a post office box) in time to be picked up by an agent of the clerk’s office before the limitation period ran, but it was not picked up until after the period ran because the clerk’s office failed to pick up its mail on a day which was not a public and legal holiday. Under these circumstances, we reversed the trial court’s dismissal of the action, holding that even though the plaintiffs complaint was stamped “filed” on December 26, a day after the limitation period had run, the trial court should have deemed the complaint filed on December 24, the regular working day on which it should have been picked up from the post office box. Id. at 573-575.

As in Lavan, it is undisputed that plaintiff’s complaint in this case was received in the clerk’s official receptacle for the receipt of mailed pleadings in plenty of time for it to be picked up and stamped as filed before the limitation period ran. We therefore hold, as we did in Lavan, that the trial court erred in accepting the stamped file date as the conclusive filing date and in dismissing the action as untimely.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.