text:
    73952.
    NATIONWIDE ADVERTISING SERVICE, INC. v. THOMPSON RECRUITMENT ADVERTISING, INC. et al.
    (359 SE2d 737)
   Pope, Judge.

Defendant Linda Pierce was employed as a customer service director by plaintiff Nationwide Advertising Service, Inc., from February 16, 1981 to October 14, 1983. Pierce’s duties as a customer service director included receiving advertisements over the telephone and making sure the customers’ ads were properly placed. On October 17, 1983 Pierce began working in a similar position for a direct competitor of plaintiff, defendant Thompson Recruitment Advertising, Inc. Although Pierce was a terminable-at-will employee of plaintiff, she had signed an employment agreement which contained certain non-competition, non-disclosure and non-solicitation covenants.

Plaintiff filed suit against the defendants on November 17, 1983 alleging, inter alia, tortious interference with various business, property, fiduciary and proprietary rights; breach of contract; breach of fiduciary duty; tortious interference with legitimate business interests; and the use of unfair methods of competition. Defendants answered, denying plaintiff’s claims against them and, following discovery, moved for summary judgment on May 10, 1985. On October 16, 1985 plaintiff filed its response to defendants’ motion for summary judgment and an amended complaint, in which it substituted the phrase “business relations” for the phrase “business interests” as used in Count 4 of its complaint. On April 22, 1986 the trial court entered an order granting summary judgment to both defendants and plaintiff appeals.

1. In its first two enumerations of error, plaintiff challenges the portion of the trial court’s order granting summary judgment on Count 4 of its amended complaint. The record shows that on November 14, 1985, after plaintiff amended Count 4 of its complaint, defendants filed a reply brief to plaintiff's response to their summary judgment motion in which defendants asserted the defense of privilege as to Count 4 of the complaint and in which they argued that the record contained no evidence to support plaintiff’s claim. In this reply brief, however, defendants employed the term “business interests” as used in the original complaint, as well as the term “business relationships.” Thus, plaintiff argues, defendants have failed timely to address the issues raised by its amended complaint. We disagree. The record shows that plaintiff amended its complaint following the filing of numerous extensions of time in which to file its response to defendants’ motion for summary judgment. Thereafter, the parties requested that the trial court delay ruling on defendants’ motion while the parties proceeded with settlement negotiations; the parties also requested that the motion be decided on the briefs without oral argument. Negotiation efforts apparently having failed, plaintiff filed a “letter brief’ in open court on November 14, 1985, in which it again presented its position as to defendants’ summary judgment motion. On that same date, and also in open court, defendants filed their reply brief. Under these facts, we decline to find that defendants failed to timely present their arguments as to plaintiffs amended Count 4. We also decline to find that the issues contained therein have never been briefed or argued by defendants simply because defendants did not employ the term “business relations” throughout its argument in response to Count 4. Likewise, we find no merit to plaintiffs argument that summary judgment should be denied because defendants failed to amend their motion for summary judgment after plaintiff amended its complaint, since defendants’ original motion contained only a general statement that defendants were entitled to judgment as a matter of law.

Turning now to the substance of Count 4, we note first that “ ‘[i]n establishing a cause of action for malicious (or tortious) interference with business relations, a plaintiff (here, [Nationwide]) must demonstrate that the [defendants] (here, [Pierce and Thompson] (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.’ [Cits.]” Integrated Micro Systems v. NEC Home Electronics, 174 Ga. App. 197, 200 (329 SE2d 554) (1985).

We will first address defendants’ argument that the record contains no evidence to support plaintiff’s claim as it relates to defendant Pierce. Plaintiff contends that the following facts demonstrate the existence of genuine issues of material fact as to said claim: (1) the means by which Daniel Construction Company, a major account of plaintiff and whose account Pierce served while employed by plaintiff was induced to switch its business to Thompson; (2) confidential documents prepared by Pierce while plaintiff’s employee appeared in Thompson’s file; and (3) Pierce rewrote and cut plaintiff’s advertising forms for use by Thompson.” However, our review of the rather voluminous record in the present case does not support plaintiff’s claim; rather, the unrebutted affidavit and deposition testimony of defendants shows the following: Prior to Pierce’s employment with Thompson, Thompson was actively pursuing the Daniel account; while Pierce was still employed by plaintiff, she was informed by one of Daniel’s representatives that it was placing some of its business with Thompson and Pierce relayed this information to plaintiff; Pierce did not participate in any cost comparisons produced for Daniel by Thompson; Pierce informed Daniel (as well as the other accounts she handled) only that she was leaving her position with plaintiff; she specifically did not notify Daniel (or the other accounts) that she was going to work for a competitor; Pierce was not hired to solicit new business for Thompson, and she was specifically instructed not to solicit former contacts or provide information to Thompson concerning her contacts; Thompson’s reworking or reduction of Daniel’s ad, which was originally produced by plaintiff, was done prior to Pierce’s employment with Thompson; Pierce learned that Thompson reworked the ad from her Daniel customer contact while she was still employed by plaintiff. Accordingly, we agree with defendants that plaintiff has failed to support its claim for tortious interference with business relations against Pierce; hence, the trial court did not err in granting summary judgment as to that defendant on Count 4 of plaintiff’s complaint. See generally Davis v. Aetna Cas. &c. Co., 180 Ga. App. 567 (349 SE2d 525) (1986); Buffington v. Gold Kist, 179 Ga. App. 393 (346 SE2d 577) (1986).

In order to determine whether summary adjudication was also proper as to defendant Thompson, however, we must consider whether its activities in pursuing plaintiff’s customers, including the Daniel account, were privileged, thereby negating an essential element of plaintiff’s tortious interference, claim. To establish a claim of privilege, Thompson must show that “(1) the relation concerns a matter involved in the competition between the actor and the competitor; (2) the actor does not use improper means; (3) the actor does not intend thereby to create or continue an illegal restraint of competition; and (4) the actor’s purpose is at least in part to advance its interests in competition with the other.” Sofate of America, Inc. v. Brown, 171 Ga. App. 39, 40 (318 SE2d 771) (1984); Orkin Exterminating Co. v. Martin Co., 240 Ga. 662, 666 (242 SE2d 135) (1978).

In the present case there is no doubt that plaintiff and Thompson are competitors and that obtaining advertising accounts concerns a matter which lies- at the heart of their competitive activities. Conversely, however, there is no evidence that Thompson intended to monopolize or otherwise create an illegal restraint of trade in the advertising arena, or stated differently, sought to prevent plaintiff or others from participating in the advertising field. Additionally, it cannot be disputed that Thompson’s purpose was to advance its position vis-a-vis plaintiff and its other competitors. Thus, the only issue remaining for our consideration is whether Thompson sought to achieve its goals by the use of improper means. In this regard we are again persuaded by the unrebutted deposition and affidavit testimony of both Dick Kirksey (Thompson’s representative) and Pierce that Pierce did not supply Thompson with any information concerning her previous customer accounts or otherwise assist Thompson in gaining said accounts. Further, the record shows that Daniel, whom plaintiff insists decided to give Thompson some of its advertising business on a trial basis solely because Pierce was to be employed there, actually made that decision prior to Pierce terminating her employment relationship with plaintiff and, according to Pierce’s unrebutted testimony, she informed her employer of Daniel’s intentions. Indeed, contrary to plaintiff’s assertion, there is no evidence that any account “followed” Pierce to her new employer; rather, the evidence shows that Thompson instructed Pierce not to inform the accounts she serviced that she would be working for a competitor. Based on the above, we find no evidence that Thompson employed Pierce to lure plaintiff’s clients to it or that Thompson otherwise employed improper means in its competitive efforts against plaintiff. There being nothing in the record to rebut Thompson’s contention that its activities were privileged, we find that the trial court also did not err in granting summary judgment as to it on Count 4 of plaintiff’s complaint. See Orkin, supra at (1); see also Kem Mfg. Corp. v. Sant, 182 Ga. App. 135 (7b) (355 SE2d 437). Cf. Integrated Micro Systems, supra at 202.

2. Plaintiff also contends that defendants failed timely to present argument in support of their summary judgment motion as to Count 5 of plaintiff’s complaint, in which plaintiff alleges that defendants used unfair methods of competition against it. The record shows, however, that defendants addressed Count 5 of plaintiffs complaint in their reply brief filed on November 14, 1985. Thus, for the reasons stated in Division 1, supra, we likewise find this argument to be without merit.

Turning now to a consideration of the merits of plaintiffs claim, we note first that in Georgia the term unfair competition is a nomenclature for the doctrine that one cannot pass off his goods as those of another. E.g., Hayes v. Hallmark Apts., 232 Ga. 307 (3) (207 SE2d 197) (1974). In support of its claim, plaintiff argues that the record indicates that defendants “deliberately engendered confusion in customers by producing advertising which, while diminished in size, was so strikingly similar that the customer could believe that it was placing the same advertisement (and receiving the same service) as it had while a customer of [plaintiff].” However, our review of the record again indicates no evidence to support plaintiff’s claim. The uncontra-dicted evidence shows that Daniel gave Thompson an advertisement produced for Daniel by plaintiff and Thompson then reduced it to show Daniel how money could be saved by running a smaller advertisement. Daniel’s representative then contacted Pierce, who was at that time still plaintiff’s employee, and inquired of her why plaintiff had not used a smaller version of the ad in order to save them money. Other than plaintiff’s unsupported allegations, there is no evidence that Daniel (or any other account of plaintiff) was confused as to the source of the advertisement produced for it by plaintiff, or that Thompson attempted to pass off plaintiff’s product as that of its own; indeed, the record suggests clearly that Daniel knew from whom the work product originated. Accordingly, the trial court did not err in granting summary judgment to defendants as to the claims stated in Count 5 of plaintiff’s complaint. Cf. Reis v. Ralls, 250 Ga. 721 (2) (301 SE2d 40) (1983); Hayes, supra at 310.

3. Plaintiff next asserts as error the trial court’s grant of summary judgment on Count 1 of its complaint, in which plaintiff alleges tortious interference with its proprietary, property, fiduciary and business rights. In essence, the factual predicate for plaintiff’s claim is Thompson’s alleged behavior in inducing Pierce and others to leave plaintiff’s employ. Thompson argues that its activities in interviewing certain of plaintiff’s employees and in hiring Pierce were privileged. Plaintiff contends, however, that Thompson used improper means in attempting to hire its employees, and therefore Thompson’s claim of privilege must fail. Again, we must review the record evidence to determine whether summary judgment was appropriately granted as to this issue.

In her deposition Pierce testified unequivocally that she was unhappy working for plaintiff and that she had so informed her superiors; she also testified that she would have given notice of her intent to leave plaintiff’s employ on September 30, 1983 even if she had not found another position. Pierce further testified that, if necessary, she was willing to seek employment outside her field in order to leave plaintiff’s employ. Both Pierce and Kirksey testified that Pierce initiated contact with Thompson through a third party. Kirksey testified that although Pierce was given a salary increase of approximately $1,500 a year, she was not offered any special incentives other than those offered to all employees at Thompson. Kirksey also testified that he contacted another of plaintiff’s employees a few months prior to hiring Pierce, but that he did not pursue hiring that person after she informed him she was not interested in changing employers. Kirk-sey further testified that Pierce referred another of plaintiff’s employees to him but that he did not extend a job offer to that employee. Kirksey testified that he talked with these employees because Thompson’s business was growing and he needed qualified people. Lastly, the record shows that Pierce admitted socializing with some of plaintiff’s other employees (her former co-workers) after hours and that they told her they were dissatisfied with their employment situation; however, except for the referral mentioned above, Pierce testified that she did not solicit those employees or suggest they come to work for Thompson. In our opinion, these facts wholly refute plaintiff’s unsupported allegation that “Kirksey wanted to strip his competition of its entire ability to complete [sic] by soliciting all of the customer service personnel.”

Plaintiff also contends that Pierce continued to work for it for two weeks after she was hired by Thompson so as to enable her to contact the accounts she serviced and lure them to Thompson’s agency. We note first that Pierce’s employment contract expressly provides that “[e]mployee shall give to [plaintiff] not less than two weeks written notice of termination of this Contract,” and that Pierce complied with said provision by giving plaintiff notice on September 30, 1983. Moreover, the record is uncontradicted that Pierce did not inform the accounts she serviced she was going to work for a competitor, and that Thompson instructed her not to inform her accounts of her new employment. Thus, again based on defendants’ uncontra-dicted evidence of record, we find that plaintiff has wholly failed to rebut the claim of privilege. Accordingly, the trial court did not err in granting summary judgment to defendants as to the claims alleged in Count 1 of plaintiff’s complaint. Accord Orkin, supra at (1); Sofate, supra at (1).

4. Plaintiff also contends that the trial court erred in granting summary judgment on Count 3 of its complaint in which plaintiff alleges that Pierce breached certain fiduciary duties. In support of said claim plaintiff argues that Pierce attempted to lure accounts away from it, especially the large Daniel account. As stated above, the evidence shows otherwise. Likewise, the record shows that Pierce did not attempt to influence her former co-workers to terminate their employment with plaintiff and come to work for Thompson (see Division 3, supra). Lastly, as to whether Pierce provided Thompson with confidential information, Pierce’s testimony, as well as Kirksey’s, is uncon-tradicted that she did not provide Thompson with any such information; moreover, she was specifically instructed not to provide any information to Thompson. Thus, the record is devoid of evidence to support Count 3 of plaintiff’s complaint. Moreover, we note also that except for plaintiff’s contention that Pierce tried to lure clients to her new employer during the last two weeks she was employed by plaintiff, all other improper activities allegedly occurred after she left plaintiff’s employ; thus, the “allegations of [plaintiff’s complaint] were not sufficient to state a breach during the life of the agency relationship, [and] the trial court did not err in [granting summary judgment on plaintiff’s claim] for breach of fiduciary duty.” Kem Mfg., supra at 142.

5. Plaintiff also challenges the trial court’s finding that the non-competition provision contained in the employment agreement between plaintiff and Pierce was “fatally overbroad and indefinite” and thus urges as error the trial court’s order insofar as it grants summary judgment on Count 2 of its complaint. With regard to competitive activities and solicitation of plaintiff’s clients after the employee’s employment relationship with plaintiff ended, the employment agreement provides as follows: “Employee . . . separately and specifically covenants that during the term of this Agreement and for a period of two (2) years after termination of Employee’s employment with [plaintiff], Employee shall not, directly or indirectly, engage or participate in any business that is in competition in any manner whatsoever with the business of [plaintiff], . . . nor shall Employee solicit or circularize or have another solicit or circularize any . . . customer or prospective customer of [plaintiff] that may have had business dealings or negotiations with [plaintiff] during the twelve (12)-month period immediately preceding the termination of Employee’s employment with [plaintiff]. . . . These restrictions shall apply to the geographical area serviced by [plaintiff’s] place of business located at 229 Peachtree Street North East [in Atlanta, Georgia.]

“ ‘A covenant not to compete, being in partial restraint of trade, is not favored in the law, and will be upheld only when strictly limited in time, territorial effect, the capacity in which the employee is prohibited from competing and when it is otherwise reasonable.’ Beckman v. Cox Broadcasting Corp., 250 Ga. 127, 129 (296 SE2d 566) (1982).” Kem Mfg., supra at 141.

Considering first the capacity in which Pierce is prohibited from competing against plaintiff, plaintiff argues that the phrase “directly or indirectly engage or participate in any business that is in competition in any manner whatsoever with the business of [plaintiff]” does not preclude Pierce from working for a competitor in any capacity, as found by the trial court. We fail to see, however, how the plain language of the agreement can be interpreted in any other manner. This court has held that a contract which prohibits an employee from working for any competitor in any capacity “fails to specify with particularity the activities which the employee is prohibited from performing and is therefore too indefinite to be enforceable. [Cits.] Moreover, [the] same provision renders the covenant overbroad and thus unenforceable because it ‘imposes a greater limitation upon the employee than is necessary for the protection of the employer.’ [Cits.]” McNeal Group v. Restivo, 252 Ga. 112 (311 SE2d 831) (1984); Uni-Worth Enterprises v. Wilson, 244 Ga. 636, 640 (261 SE2d 572) (1979). Cf. Pierce v. Industrial Boiler Co., 252 Ga. 558 (2) (315 SE2d 423) (1984), in which the employee was prohibited from competing “in any capacity held by employee,” thereby limiting the covenant to those activities actually performed by the employee for the employer.

We note also that the territory specified, which appears to apply to all the restrictions contained therein, covers the entire area serviced by plaintiff’s Atlanta office (“geographical area serviced by [plaintiff’s] place of business located at 229 Peachtree Street North East”). Thus, under the terms of the agreement, the employee is prohibited from soliciting any customer serviced by plaintiff’s Atlanta office, regardless of whether the employee actually had contact with that client while employed by plaintiff. In such a situation, our Supreme Court has held a similar provision unenforceable because it “ ‘unfairly restricts ordinary competition and provides [plaintiff] with greater protection than it needs.’ [Cits.]” Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (307 SE2d 914) (1983); see also Uni-Worth, supra at 639. In addition, the territorial restriction as it relates to the non-competition provision of the agreement is likewise unenforceable. See Kem Mfg., supra at (5); Howard Schultz & Assoc. v. Broniec, 239 Ga. 181 (1) (236 SE2d 265) (1977). Cf. Nunn v. Orkin Exterminating Co., 256 Ga. 558 (la) (350 SE2d 425) (1986). Lastly, we note that the Georgia courts have “rejected the ‘blue pencil theory of severability’ as applied to restrictive covenants in employment contracts. [Cits.] Therefore, if any of the sub-paragraphs of the restrictive covenant are invalid, the entire covenant must fall.” Uni-Worth, supra at 640. Based on the foregoing, we find both the non-competition and non-solicitation clauses in the present agreement void and unenforceable as a matter of law; hence, the trial court did not err in granting summary judgment on Count 2 of plaintiff’s complaint to the extent it states a cause of action based on Pierce’s violation of those covenants.

6. Lastly, plaintiff argues that even if the trial court did not err in finding the non-competition provisions of its employment contract unenforceable, the trial court nevertheless erred in granting summary judgment as to Count 2 of its complaint, because the non-disclosure provision of its agreement with Pierce was valid and enforceable. “The tests used to determine the validity of a non-competition and a non-disclosure provision are not the same. Unlike general non-competition provisions . . . specific non-disclosure clauses bear no relation to territorial limitations and their reasonableness turns on factors of time and the nature of the business interest sought to be protected. The two important factors are (1) whether the employer is attempting to protect confidential information relating to the business, such as trade secrets, methods of operation, names of customers, personnel data, and so on — even though the information does not rise to the stature of a trade secret; and (2) whether the restraint is reasonably related to the protection of the information.” (Citations and punctuation omitted.) Kem Mfg., supra at 139.

In the case sub judice the employment agreement provides that the employee shall not, “either directly or indirectly, divulge, disclose or communicate to any other person [plaintiff’s] customer lists, credit classifications, records, statistics, the identity of [plaintiff’s] customers or prospective customers with whom Employee has contacted or dealt, or any other information acquired by Employee in the course of his/her employment in any capacity whatsoever. . . .” “In considering this paragraph, we are unable to say as a matter of law that this provision is void as a restraint of trade. The legitimacy of the need to maintain the confidentiality of such information is a question of fact whose resolution is for the jury. [Cits.]” Kem Mfg., supra at 139.

In the present case, however, finding that the covenant against non-disclosure is not void as a matter of law does not end our inquiry as to whether summary judgment was properly granted as to this issue. Again, we must consider whether the evidence of record supports plaintiff’s claim that Pierce violated this provision. In this regard, plaintiff points to the fact that a report prepared by it for the Daniel account was found in Thompson’s file. However, defendant Pierce and defendant Thompson testified unequivocally that Pierce did not disclose any confidential or other information protected by the employment agreement. Indeed, Pierce specifically testified that she did not give the Daniel report to Thompson. “ Tf a prima facie showing is made that the moving party in summary judgment is entitled to judgment as a matter of law, the opposing party must come forward with rebuttal evidence at that time or suffer judgment against him. When a motion for summary judgment is made and supported by evidence outside the pleadings, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial.’ (Citations and punctuation omitted.) Dunoco Dev. Corp. v. Ed Taylor Constr. Co., 178 Ga. App. 738 (344 SE2d 531) (1986).” Kem Mfg., supra at 141; see also Buffington v. Gold Kist, 179 Ga. App. 393, supra; Kelly v. American Fed. Sav. &c. Assn., 178 Ga. App. 542 (343 SE2d 755) (1986). Hence, we find the trial court did not err in granting summary judgment to defendants on the remainder of Count 2 of plaintiff’s complaint.

Decided July 14, 1987.

James E. Goodman, F. Clay Bush, for appellant.

Robert M. Martin, John G. Parker, for appellees.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.

       Plaintiff also argues that the trial court erred in finding its claim for tortious interference with business relations and its claim for unfair methods of competition (Count 5 of plaintiffs complaint) redundant of Counts 1 and 2 of its complaint. However, on a motion for summary judgment, a trial court is not obligated to make findings of fact and conclusions of law, Victor v. First Trust &c. Co., 154 Ga. App. 97 (2) (267 SE2d 639) (1980), and thus we decline to find the court’s statement concerning the redundant nature of plaintiffs claims dispositive of the issue of whether summary judgment was appropriately granted to defendants on those claims.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    73972, 73973.
    McCULLOHS SERVICE STATION, INC. et al. v. WILKES; and vice versa.
    (359 SE2d 745)
   Pope, Judge.

Appellants McCullohs Service Station, Inc. and Charles A. Mc-Cullohs brought this action against appellee Talmadge J. Wilkes alleging negligence in failing to obtain a certain amount of automobile liability insurance coverage. Following discovery appellee moved for summary judgment which was granted “as it relates to a negligence claim” and denied “as [it] relates to a fraud claim.” Appellants appeal the grant of summary judgment, and appellee cross-appeals the denial.

Construing the evidence most favorably toward appellants as the parties opposing the summary judgment motion (Morris v. Pulliam, 168 Ga. App. 442 (2) (309 SE2d 423) (1983)), the record discloses the following facts: In early April of 1984 appellee, an independent insurance agent/agency, was asked by appellants to procure $500,000 in automobile liability insurance for a Chevron service station which appellant operated pursuant to a lease agreement with Chevron USA, Inc. The Chevron lease made reference to a $1,000,000 umbrella policy which provided coverage for automobile liability in excess of $500,000 in underlying coverage. This lease agreement had been in effect for several years, and Mr. McCullohs, although not certain he had provided same to appellee for review, assumed appellee was familiar with its terms by virtue of their (appellants’ and appellee’s) long business relationship and appellee’s having obtained insurance coverage for other local Chevron service stations. Prior to this time appellants had only been insured for $100,000 of automobile liability coverage. The impetus for appellants’ request for increased coverage was a quote for insurance coverage given to them by another insurance agency. The quote was for split limits of $300,000/$500,000 for automobile liability coverage.

On April 23, 1984 appellee issued to Chevron USA, Inc., a “Certificate of Insurance” setting forth the named insured, the name of the insurer, the policy number and the coverage afforded to appellants thereby; a copy of same was provided to appellants. The certificate stated: “This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policies listed. . . .” Appellee issued this certificate in keeping with his policy of issuing such certificates before the expiration of appellants’ lease (Chevron had required such procedure in the past), even though the listed policy had not in fact been issued. The certificate indicated that appellants had garage liability coverage of $500,000 and automobile liability coverage of a like amount for the period April 23, 1984 to April 23, 1985. (Appellee contends that the entry of $500,000 of automobile liability coverage was a “clerical error” made in his office.)

On May 2, 1984 Mr. McCullohs telephoned appellee because he knew the previous policy had expired and that the service station thus had no insurance coverage. Mr. McCullohs testified to the substance of that conversation: “He [appellee] told me he couldn’t touch this . . . quote [from the other insurance agency]; and I asked him about what it would run and ... he quoted me [an amount] and I told him . . . that I had been doing business with him all of these years and I didn’t want to do business [with the other, larger agency.] . . . I asked him would I have the same coverage . . . that I was quoted [by the other agency] and he told me I could not add any additional automobiles to it but I would have the same coverage.”

Approximately two months later (June or July 1984) appellee delivered an insurance policy issued by an insurer different from the one named on the April 23 certificate of insurance. This policy provided coverage from May 1, 1984 to May 1, 1985. Mr. McCullohs testified: “He brought it in and gave me a new insurance card, and I asked him what was the new insurance card for and he said changed companies because he got me a better rate. I said well, there’s nothing wrong with that. He said that he would put the policy over there in the box . . . where I had the other policies. I had some old policies that were not any good and if [I] wanted [him] to, he would throw those away. I said fine, go ahead. So, he stuck it over there in that box. Q. So, you didn’t [sic?] discuss the fact that he did change companies for you. A. Yes, sir. Q. . . . Did you discuss anything else about whether or not there were any other changes in the kind of coverage that you had? A. No. Q. Did you ask him specifically whether or not he had obtained for you the same kind of automobile liability limits that had been quoted to you by the [other agency]? A. Well, I had certificate of insurance in the drawer . . . and I assumed that I had all of the coverage that I needed. . . . Q. You were aware that at the time that Mr. Wilkes made the delivery of that policy it was a policy by another company, a company other than [the one named in the certificate of insurance,] true? A. Yes. Q. . . . [W]hen you obtained the new policy . . . did you read it? A. No, sir. Q. Did you look it over at all? A. No, sir. . . . Q. Mr. Wilkes did not prevent you from reading or examining the policy, did he? A. No, sir. Q. If you wanted to ask him any questions about it from your prior experience, I assume you would have known that he would have been happy to talk to you about it, wouldn’t he? A. I’m sure he would have. I have been doing business with him all of these years and I didn’t feel like it was necessary. . . . I never felt like I needed to question him about anything.”

In early August of 1984 one of appellants’ vehicles was involved in a serious accident which ultimately resulted in liability of $1,300,000. Appellants’ automobile liability insurance covered only $100,000 of the loss, the limit of the policy, and the umbrella policy provided by the Chevron lease covered the loss only in excess of $500,000. Appellants sued appellee to recover the $400,000 difference between the coverage they had requested and that actually obtained by appellee.

1. Appellants’ negligence claim is controlled by the holding in Ethridge v. Assoc. Muts., 160 Ga. App. 687 (288 SE2d 58) (1981): “In Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268 (210 SE2d 801) [(1974)], the Supreme Court recognized that under appropriate circumstances the broker or agent who held himself out as an expert in the field of insurance and who performed such expert services on behalf of an insured could be liable ex delicto for his negligence in failing to perform those services adequately. ... In such circumstances, it is not necessary and perhaps futile for the insured to examine its policy. . . . This case was further examined and explained in the case of Mayes v. Hodges, 142 Ga. App. 538 (236 SE2d 494) [(1977), rev’d, 240 Ga. 643 (242 SE2d 160) (1978)]. . . . That case [holds] that whether the agent is a broker acting for the insured or a dependant agency acting for the insurer is not material. So long as the insured is required to rely upon the agent to exercise the agent’s expertise, the rule announced in Wright, supra, will apply.” Ethridge, supra at 688-689.

As in Ethridge, however, this is far from the situation we find in the case at bar. Here appellants informed appellee of the exact amount of automobile liability insurance desired, i.e., $500,000. There is no evidence that appellee had any discretion in the type or amount of insurance. “The facts of this case establish a contractual relationship rather than the negligent performance of a fiducial duty. We [find] that the case of Barnes v. Mangham, 153 Ga. App. 540 (265 SE2d 867) [(1980)] is dispositive of this case. . . . The evidence demands a finding that [appellants] failed to comply with [their] legal duty to examine [the] contract, observe what coverage it provided and, if the coverage was not correct, either reject the policy as written when tendered, or renegotiate [the] contract with the insurer. [Appellants were] not only free to examine the contract [they] were under a duty to do so; and if [they] had done that [they] would have observed just what coverage it provided. If it was not what [they] wished to have [they] could have renegotiated (the) contract, or, if [appellee] was unwilling to do that, [they] could have returned it as unacceptable and negotiated a contract with another [agency].” (Citation and punctuation omitted.) Ethridge, supra at 689.

Decided July 14, 1987.

Stephen G. Gunby, for appellants.

Michael T. Thornton, Michael L. McGlamry, for appellee.

Appellants were under a legal duty to read the policy issued to them, and they failed to comply with that duty. For the reasons stated herein, appellee was entitled to the grant of summary judgment in his favor as to appellants’ negligence claim. Accord Turner, Wood &c., Inc. v. Reed, 169 Ga. App. 213 (311 SE2d 859) (1983); Georgia Mut. Ins. Co. v. Meadors, 138 Ga. App. 486 (226 SE2d 318) (1976); S & A Corp. v. Berger & Co., 111 Ga. App. 39 (140 SE2d 509) (1965); Grizzle v. Guarantee Ins. Co., 602 FSupp. 465 (N.D. Ga. 1984).

2. Appellants’ complaint as amended alleges that when appellee delivered the new policy of insurance in June or July 1984, he “misrepresented to Charles McCullohs that the amount of insurance coverage was the same as shown on that Certificate of Insurance dated April 23, 1984. . . .” It is clear from Mr. McCullohs’ own testimony set forth above that there is no factual predicate for this allegation of fraud. There being no evidence of any misrepresentation on the part of appellee in connection with the new policy of insurance, the trial court erred in denying appellee’s motion for summary judgment on appellants’ fraud claim. See King v. Brasington, 252 Ga. 109 (1) (312 SE2d 111) (1984).

Judgment affirmed in Case No. 73972. Judgment reversed in Case No. 73973.

Birdsong, C. J., and Deen, P. J., concur.


text:
    74350.
    LANDERS v. THE STATE.
    (359 SE2d 748)
   Pope, Judge.

Merida Winfield Landers III brings this appeal from his convictions and sentences of two counts of violating the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq. (possession of methamphetamine and of marijuana) and unlawfully possessing an item with an altered serial number, OCGA § 16-9-70 (a). Defendant’s enumerations of error challenge the denial of his motion to suppress items seized from his person and his abode pursuant to a search warrant. Held:

1. Defendant first asserts that the description and location of the premises to be searched, as stated in the warrant and affidavit, was fatally defective. This information was provided to the affiant by a reliable, confidential informant and described the premises as “[a] silver mobile home located at the intersection of Wildwood Drive and Wildwood Court. Said residence is located by traveling West on Monroe Drive to the intersection of Monroe [D]rive and Candler Road. Turn right off Monroe Drive onto Candler [R]oad, travel to dead-end of Candler [R]oad. At the end of Candler [R]oad turn right off of Candler [R]oad onto Wildwood [D]rive and Wildwood Court. Said residence will be on the right side of Wildwood [D]rive East on Wildwood [D]rive. See attached Map. Hall County, Georgia.” The map (not drawn to scale) visualized the foregoing directions and further described the subject mobile home as “located on the right side of Wildwood Drive . . . Approx. 20’ from road [and] ... is solid silver in color.” Defendant contends that since the name of the owner or occupant of the premises was not given, the description of the premises must have been exact, and the foregoing description lacked the requisite definiteness. Defendant bases this assertion upon his testimony at the hearing on the motion to suppress that the map was “not very accurate” because there were several other mobile homes in the vicinity (not shown on the map), including one which was “the same silver color” located two doors up the road from him.

“To be valid, a search warrant must contain a description of the person and premises to be searched with such particularity as would enable a prudent person executing the warrant to locate the person and premises definitely and with reasonable certainty. The writ should not leave the executing officer in doubt or require him to exercise his discretion. It will be deemed sufficient if the information permits the officer to locate the premises without the aid of other information. However, where the name of the owner or occupant is not given, the description of the premises must be exact.” (Citations and punctuation omitted.) State v. Hatch, 160 Ga. App. 384, 385 (287 SE2d 98) (1981). “This court has often stated that ‘ “a search warrant should be read as a whole, and any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement.”’ [Cit.]” State v. Hardin, 174 Ga. App. 83, 84 (329 SE2d 172) (1985).

Applying these standards to the case at bar, we find the description of the premises to be searched sufficiently exact to pass muster. E.g., Martin v. State, 165 Ga. App. 760 (1) (302 SE2d 614) (1983); Toole v. State, 146 Ga. App. 305 (3) (246 SE2d 338) (1978); United States v. Ortiz 311 FSupp. 880, 883 (D. Colo. 1970). Cf. Vaughn v. State 141 Ga. App. 453 (1) (233 SE2d 848) (1977). We also find significant the fact that the officers who executed the warrant knew the location of the subject mobile home. Prior to swearing out the warrant, one of the officers checked the informant’s directions three times, and, during one of the trips, was accompanied by the informant, who pointed out the subject mobile home. Also, having “worked a case” with the former owner of the premises, the officers were “well familiar” with the location, although this knowledge was not reflected in the warrant or its supporting affidavit. Accord United States v. Burke, 784 F2d 1090, 1092-1093 (11th Cir. 1986); see Gumina v. State 166 Ga. App. 592 (2) (305 SE2d 37) (1983); Chambliss v. State 165 Ga. App. 194 (1) (300 SE2d 201) (1983).

2. Defendant also contends that the warrant was defective due to the staleness of the information relied upon at the time the premises were searched. As is pertinent to this issue, the affidavit for the search warrant stated: “On or between the dates [of] February 1, 1985 and January 23, 1985 affiant was contacted by a true and reliable informant who stated . . . that he . . . was at the above described premises on or between the dates above and . . . personally observed a quantity of Amphetamine being kept and stored at the above described premises.” The warrant was issued on February 1 and was executed on February 4, 1985.

Although the precise date the informant saw the alleged illegal drugs was not affirmatively shown in the affidavit, “it is not necessary that ‘the precise date of the occurrence be given but it should appear from the facts that the occurrence should be so near in point of time to the making of the affidavit and the execution of the search warrant as to create a reasonable belief that the same conditions described in the affidavit still prevailed at the time of the issuance of the warrant.’ [Cit.]” Lewis v. State 126 Ga. App. 123, 127 (190 SE2d 123) (1972).

Decided July 14, 1987.

W. Allan Myers, for appellant.

C. Andrew Fuller, District Attorney, Donald F. Chase II, Chan-delle Turner, Assistant District Attorneys, for appellee.

The subject affidavit’s nine-day period during which the informant purportedly observed the illegal drugs being “kept and stored at the [subject] premises” did not render it stale. E.g., McDade v. State, 175 Ga. App. 204 (2a) (332 SE2d 672) (1985); Evans v. State, 161 Ga. App. 468 (1) (288 SE2d 726) (1982). See generally Shrader v. State, 159 Ga. App. 522 (1) (284 SE2d 37) (1981); Tuzman v. State, 145 Ga.

App. 761 (2A) (244 SE2d 882), cert. den., 439 U. S. 929 (1978). By way of explanation at the motion to suppress hearing, the affiant testified: “I date the warrant ten days to try to protect the identification of the informants, that’s the reason for the ten-day period, but there’s approximately a two-day period for the information from the informant.” See Kouder v. State, 154 Ga. App. 597 (2) (269 SE2d 92) (1980).

The trial court did not err in overruling defendant’s motion to suppress and related motion for new trial for any reason assigned.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.

       Compare Bell v. State, 124 Ga. App. 139, 140 (182 SE2d 901) (1971), holding “ ‘that the fact that the officers executing the warrant knew certain facts about the place to be searched which were omitted from the warrant and which were essential to a proper description will not supply such omission in the warrant.’ ” (Emphasis supplied.)


author: Birdsong, Chief Judge.

text:
    74587.
    McDERMOTT v. THE STATE.
    (359 SE2d 750)
   Birdsong, Chief Judge.

Appellant appeals his conviction of driving under the influence of an intoxicant and improper lane usage. Held:

Appellant contends the trial court erred by refusing to grant a mistrial after a State’s witness allegedly impermissibly placed appellant’s character into evidence. Appellant’s arresting officer, David Burke, was asked by defense counsel during cross-examination whether he knew appellant prior to the time of the arrest. The question apparently referred to an occasion occurring earlier that evening when Burke had seen appellant while responding to a burglar alarm at a local lounge. The response was “Yea.” On redirect, the prosecutor continued that line of questioning by asking the officer how he knew appellant prior to this arrest. The officer’s reply was “he had been arrested on a prior DUI in our city.”

An objection and a motion for mistrial were made on the grounds that appellant had not introduced his character into evidence prior to the officer’s statement. The objection was sustained and the motion for mistrial was denied. The judge immediately instructed the jury to disregard what they heard about a prior arrest of the appellant. He told them to take it out of their minds because it was not relevant to whether appellant was guilty of the crime charged on that occasion.

Decided July 14, 1987.

Murl E. Geary, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.

The grant or denial of a mistrial is necessarily a matter that lies within the sound discretion of the trial court. Absent an abuse of that discretion, the refusal to grant a mistrial is not reversible error. Jordon v. State, 247 Ga. 328, 349 (11) (276 SE2d 224); Middlebrooks v. State, 169 Ga. App. 507, 509 (2) (313 SE2d 764). To determine whether the trial court abused its discretion, it is necessary to examine each case in light of its relevant circumstances. Some of the factors to be considered are the action taken by the court concerning the impropriety, the strength of other evidence, and the nature of the question or statement. Sabel v. State, 250 Ga. 640, 644 (5) (300 SE2d 663).

In the present case, the trial court took prompt and thorough corrective action, telling the jury to completely disregard the testimony. Further, the prosecutor was not aware that appellant had previously been arrested for DUI in the same town. She was merely following up on the line of questions initiated by appellant’s counsel, and attempting to dispel any questionable motive for the arrest. The officer simply responded in narrative form to questions asking how he knew appellant prior to this arrest. Thus, the testimony did not appear to be an attempt to bolster a factually weak case by interjecting evidence of other crimes.

In light of the broad discretion accorded trial courts for decisions to grant or deny motions for mistrial and any corrective action taken, and considering the nature of the statement in the present case, appellant’s enumeration of error is without merit.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    74642.
    THE STATE v. BASSFORD.
    (359 SE2d 752)
   Birdsong, Chief Judge.

The State appeals from the judgment of the trial court directing the suppression of the fruits of a search conducted by the police on the automobile of Barry Owen Bassford, the defendant. At approximately 11:00 a.m. on January 31, 1986, Jerry T. Abernathy, a special agent of the Georgia Bureau of Investigation, received a phone call in the Regional Drug Enforcement Office in Douglas, Georgia, from a confidential informant. He had known the informant since August of 1985 when he had been arrested for trafficking in cocaine. The informant had agreed to provide information to the GBI and the FBI on the smuggling of marijuana from Florida, where he lives, through Georgia on the interstate system by the use of “box trailers.” This was the first time the informant had presented information to him. The informant told him: He had seen Barry Owen Bassford purchase approximately six ounces of cocaine and put it in the trunk of his car. Bassford had previously purchased cocaine on several trips to Florida and then transported it to Maryland where he sold it. Bassford’s car was a yellow, two-door Opel, with a CB antenna, and the words “Harley Davidson” in the rear window. The last three digits of Bassford’s license tag were 820. The vehicle would be traveling from Ft. Myers, Florida, on 1-95 through Georgia, with a destination of Maryland. There would be only one occupant, Bassford, who was described as white, male, 40-45 years of age, slender build, gray beard, gray hair, with tattoos on his arms.

Agent Abernathy decided to attempt an intercept in Glynn County because he had a good working relationship with officers there. He made arrangements with the Glynn County police to staff a stake-out position on 1-95 with sufficient officers to apprehend the suspect. The stake-out started around 4:00 p.m. and at approximately 6:00 p.m., the officers saw a northbound 1975, yellow, two-door Opel 1900 automobile, with a CB antenna and the words “Harley Davidson” on the rear window, bearing a Maryland license tag of JCL 820. There was only one occupant, a white male. After the car was stopped, the driver was asked to identify himself. He gave his name as Barry Owen Bassford, living in Accotenk, Maryland. He had tattoos on both arms, was of slender build, was 45 years of age, and had grayish to black hair. Abernathy said he advised Bassford why they stopped him and he denied he had any drugs and consented to a search of the trunk of the car. Cocaine was found in the trunk.

Officer Abernathy said he did not attempt to secure a search warrant because they did not have a full license number and he did not know in which county he should attempt to get a search warrant. His training had been that he could not obtain a warrant for a car unless he had the full license number because he “couldn’t really properly identify” the car.

Bassford testified he was heading home from Florida to Maryland when he was stopped. He said he was forced to the side of the road by three unmarked cars, but one car had blue lights on the dashboard. Officer Abernathy came to his car and asked him if he was carrying contraband. He said “no.” The other officers started a search of the interior of his car and removed the keys and opened the trunk. He said he was never asked to consent and did not consent to the search. After the cocaine was found, he was placed under arrest.

The trial court ruled “that it is not permissible for a law enforcement officer, with the time involved, to conduct a unilateral search without seeking the aid of the Courts, that’s what the Courts are for, especially in view of the time. I, therefore, find that the Agent did not have probable cause to stop the defendant and that the stop, the search of the vehicle in question of the defendant was an illegal search, and therefore, the motion to suppress is granted.” The State then filed this appeal. Held:

1. The law of search and seizure is not a static concept. For years courts were guided by the “two-pronged” test of Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723), when an informant’s information was used as the basis for a search, i.e., (1) reliability of the informant, and (2) how he obtained his information or description of the criminal activity in such detail that the magistrate would know “he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli v. United States, 393 U. S. 410, 416 (89 SC 584, 21 LE2d 637). However, in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527), the Supreme Court abandoned Aguilar’s standards for a new “totality of the circumstances” test. Although Aguilar was specifically “abandoned,” courts were directed to continue to consider the “closely intertwined” and “highly relevant” issues that illuminate the existence of probable cause, i.e., veracity, reliability, and basis of knowledge of the informant, in arriving at a “ ‘practical, nontechnical’ ” decision. Gates, supra at 238.

The court emphasized that “[i]n dealing with probable cause . . . as the very name implies, we deal with probabilities. . . . While an effort to fix some general, numerically precise degree of certainty corresponding to “probable cause” may not be helpful, it is clear that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. . . .” The task of the issuing magistrate is simply to make a practical, common-sense decision, whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate has a “substantial basis for . . . concluding]” that probable cause existed.’ ” Gates, supra, pp. 231-239. We note in this latter explanation of the level of information necessary to justify the magistrate’s issuance of a warrant based on the person supplying hearsay information that “prior reliability” is not a controlling element, but emphasis was shifted to “veracity” and “basis of knowledge” of the person supplying the hearsay information. This court has faced this issue several times before, and asked: “May one act on the information of an informer as to whom the magic phrase ‘has given reliable information in the past’ cannot be applied? An answer to the question is reached in United States v. Harris, 403 U. S. 573, 581 (91 SC 2075, 29 LE2d 723), where it is stated the court has never suggested that an averment of previous reliability is essential, the question being whether the informant’s present information is truthful and reliable.” (Emphasis deleted.) Davis v. State, 129 Ga. App. 158, 159-160 (198 SE2d 913); accord Britt v. State, 161 Ga. App. 244, 245 (288 SE2d 309); Miller v. State, 155 Ga. App. 399 (1) (270 SE2d 822); Giles v. State, 149 Ga. App. 263, 265 (254 SE2d 154).

Hence the facts known to the officer must be weighed and evaluated, not in terms of “prior reliability” of the informant, or a judicial analysis of “probable cause” to search, but “as understood by those versed in the field of law enforcement” under the “totality of the circumstances” test. Gates, supra at 232. Officer Abernathy knew the informant had previously dealt with cocaine, and had agreed to be an informant for the GBI and FBI. Further, the informant’s detailed and explicit description of what he had personally observed entitled his information to greater weight than might otherwise be accorded. Gates, supra at 233. Corroboration of those details by independent police work is also of significant value. Gates, supra, hn. 3. Thus, even an anonymous tip, when corroborated in major part by police observation, weighs heavily in any determination of probable cause. Id. The police corroborated the informant’s prediction that Bassford immediately would be returning to Maryland, from Florida, through Georgia on 1-95, and his explicit description of Bassford and his car, established the accuracy and verity of the informant’s information. “ ‘Our decisions applying the totality of circumstances analysis . . . have consistently recognized the value of corroboration of details of an informant’s tip by independent police work. . . .’ “The corroboration of the . . . [informant’s] predictions that [the suspect] . . . would be in Florida . . . and that he would drive the car north toward [Maryland, through Georgia on 1-95] all indicated, albeit not with certainty, that the informant’s other assertions also were true. “Because an informant is right about some things, he is more probably right about other facts. . . .” ’ ” State v. Stephens, 252 Ga. 181, 183 (311 SE2d 823); accord Gates, supra. And, all the determination of “probable cause” entails is “a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, supra, hn. 2.

We acknowledge the law’s preference for warrants in conducting a search and seizure. However, we also recognize the lack of legal training of police officers, and if an officer reasonably concludes he has insufficient evidence to establish probable cause for the issuance of a warrant because of an incomplete license number, and lack of certainty of the time and place of an intercept, this does not require the officer to turn his back and walk away and permit a crime to occur. Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612). To the contrary, Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) recognized that the essence of good law enforcement practice was to adopt an intermediate response by a “brief stop” of the suspicious person “to maintain the status quo momentarily” to confirm or dispel the information received. Accord Adams, supra at 146.

This court in Radowick v. State, 145 Ga. App. 231 (244 SE2d 346), followed the holding of United States v. Brignoni-Ponce, 422 U. S. 873, 878 (95 SC 2574, 45 LE2d 607), in which the Supreme Court found that a motorist’s “freedom to use public highways” was circumscribed by a state’s police power when an officer has “specific and articulable facts” which would warrant a stop of a vehicle to investigate the circumstances which provoked a reasonable and founded suspicion. The Supreme Court sanctioned limited stops as a “valid method of protecting the public and preventing crime . . . because of the importance of the governmental interest at stake, [and] the minimal intrusion of a brief stop” . . . when a police officer’s observations lead him reasonably to suspect... a violation . . . “he may stop the car briefly and investigate the circumstances that provoke suspicion.” 422 U. S. at 881. Thus, while an unverified tip from an unknown informant may not supply probable cause for a search or a warrant, if the information carries enough indicia of reliability, it will authorize a forcible stop of a suspect to maintain the status quo momentarily while obtaining more information. Adams v. Williams, 407 U. S. 143, supra; accord Radowick, supra at 233. In the instant case, Officer Abernathy had reasonable and articulable information to suspect that the person and car described to him by his informant would be transporting cocaine. Accordingly, under Brignoni-Ponce, supra, Adams v. Williams, supra, and Radowick, supra, a brief investigatory stop of Bassford’s car was authorized. The trial court erred in finding “that the Agent did not have probable cause to stop the defendant. . . .” “Probable cause” is not the only standard to apply to the reasonableness of the stop of an automobile.

2. Officer Abernathy testified that after he stopped the automobile of Bassford that the defendant consented to a search of the trunk of the car where the cocaine was found. The trial court did not reach the issue of consent because it ruled there was a lack of probable cause to stop the car. The incorrect test being applied for the stop of the automobile, the judgment must be reversed and will be returned to the trial court for a determination of the issue of consent to search.

“A valid consent eliminates the need for either probable cause or a search warrant.” Noland v. State, 178 Ga. App. 486, 489 (343 SE2d 763). Only if the issue of consent is decided adversely to the State need the trial court consider the issue of probable cause.

Decided July 14, 1987.

Glenn Thomas, Jr., District Attorney, Robert L. Crowe, Assistant District Attorney, for appellant.

Donald E. Manning, John W. Davis, for appellee.

Judgment reversed and case remanded.

Deen, P. J., and Pope, J., concur.


author: Benham, Judge.

text:
    73692.
    SHAW v. W. M. WRIGLEY, JR. COMPANY.
    (359 SE2d 723)
   Benham, Judge.

Appellant, E. Joan Shaw, a former employee of appellee W. M. Wrigley, Jr. Company (“Wrigley”), filed suit against the company under OCGA § 34-6A-1 et seq., the Georgia Equal Employment for the Handicapped Code (“GEEHC”), claiming that Wrigley fired her because she had had cancer. A jury found for Wrigley, and appellant brings this appeal. We affirm.

Ms. Shaw was the company nurse at one of Wrigley’s plants when, in early 1983, she was diagnosed as having breast cancer. A mastectomy was performed, the cancer was successfully removed, and approximately four weeks later Shaw returned to her job. According to appellant, her supervisor and other co-workers treated her differently upon her return, and she characterized that treatment as discriminatory and directly related to her cancer. In February 1984, appellant’s employment with Wrigley ended; she claimed she was discharged, and appellee claimed she quit due to personality conflicts. It was undisputed that appellant performed her duties satisfactorily both before and after her surgery. At trial, both sides offered testimony which they felt supported their positions, and the jury was given a set of four interrogatories to answer to determine the outcome of the case. The jury answered the first question, “Did the plaintiff, E. Joan Shaw, voluntarily quit her job with the W. M. Wrigley, Jr. Company; or did the defendant, through an officer or agent, discharge the plaintiff from her job?” by finding that Wrigley constructively discharged Shaw. Having so found, the jury was instructed to answer the second question, “Did the plaintiff present evidence which would indicate that the reason for her discharge was that she had cancer?” The jury answered, “No,” and therefore was instructed not to answer the last two questions, which addressed whether Wrigley had presented reasons for Shaw’s discharge other than her cancer and whether Shaw showed by a preponderance of evidence that despite Wrigley’s stated reason for the discharge, its real reason was because Shaw had had cancer.

1. Appellant contends that once the jury determined she had not quit but had been discharged by appellee, appellant was entitled to judgment as a matter of law and that the jury need not have answered any other interrogatories. We disagree.

Cases brought under the GEEHC, the purpose of which is to protect individuals from discrimination by private employers on the basis of various handicaps and disabilities, are similar to those brought under Title VII, the federal provisions prohibiting discrimination in employment on the basis of race and sex. The existence of a prima facie case under the state statute will be most often determined by the formula similar to that announced in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (93 SC 1817, 36 LE2d 668) (1973). See also Ga. Bureau of Investigation v. Heard, 166 Ga. App. 895 (305 SE2d 670) (1983). We hold that in order for a plaintiff to make out a prima facie case of disparate treatment under the GEEHC, she must show that she is (1) a member of the protected class, i.e., handicapped; (2) that she meets the objective qualifications of the job in question; (3) that she was either directly or constructively terminated; and (4) that there was a nexus between her termination and her handicap. Cf. McDonnell Douglas Corp., supra. Once those four criteria are met, thus establishing the plaintiff’s prima facie case, a rebuttable presumption arises that the employ er/defendant unlawfully discriminated against the plaintiff, and to rebut the presumption the employer must clearly set forth through admissible evidence a legitimate, nondiscriminatory reason for plaintiff’s rejection or discharge. U. S. Postal Svc. &c. v. Aikens, 460 U. S. 711, 714 (103 SC 1478, 75 LE2d 403) (1983). The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if defendant’s evidence raises a genuine issue of fact whether it discriminated against plaintiff. Once the defendant’s reason is proffered, the burden shifts to the plaintiff to show by a preponderance of the evidence that the proffered reason was not the true reason for the employment decision. Although the burden of producing evidence shifts from plaintiff to defendant and back again, the burden of persuading the trier of fact that defendant has intentionally discriminated against plaintiff remains with plaintiff at all times. Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 253 (101 SC 1089, 67 LE2d 207) (1981). Once all the evidence is adduced, the trier of fact is then in a position to decide that ultimate factual issue in the case. Ga. Bureau of Investigation v. Heard, supra at 899.

Applying the foregoing analysis, appellant’s contention that she was entitled to a verdict as a matter of law once the jury found that she was constructively discharged is unfounded. The first two elements of appellant’s prima facie case were eliminated by the trial court’s ruling that, as a matter of law, she was a member of the protected class, and by the lack of dispute about appellant’s qualifications for her job respectively. However, there was not only one question of fact remaining in the case, as appellant contends, but two questions, those being whether appellant produced sufficient evidence to show that she was fired from her job and, if so, whether she produced sufficient evidence to show that the firing was related to her cancer. The trial court properly submitted those questions to the jury at the close of the evidence, as they were contested factual issues, and appellant had the burden of persuasion on both. Assuming that appellant made out her prima facie case at trial, we find that even though appellee contended that appellant quit, it proffered a nondiscriminatory reason for her leaving her job at Wrigley, that being personality conflicts with her supervisor and co-workers, some of which existed before her cancer. Appellee having produced that evidence, thus rebutting the presumption, the trial court could not, as a matter of law, rule in appellant’s favor. The trial court did not err in allowing the jury to answer Interrogatory No. 2 after it found appellant was constructively discharged.

2. In her second enumeration of error, appellant claims that Interrogatory No. 2, which questioned whether she had shown that her firing was due to her cancer, improperly imposed on her the burden of producing more evidence than was necessary to establish a prima fa-cie case of illegal handicap discrimination. In her third enumeration of error, she contends that “Jury Interrogatory No. 2 was improper because it failed to define the difference between the burden of proof and presentation of evidence, and this failure resulted in improper consideration by the jury of the factual issues before it.” Under the McDonnell Douglas/Burdine model that we adopted, once the jury determined that appellant was constructively discharged, it was authorized to decide whether she was discharged because of her cancer-based handicap. The jury found that she did not present evidence to indicate that her discharge was due to discrimination against her because of her cancer.

Our review of the record shows that the jurors were adequately and properly instructed as to which party carried the burdens of production of evidence and persuasion, and that the jury interrogatories were sufficiently drawn. Appellant had, arguably, produced evidence to make out her prima facie case as far as the trial court was concerned. If she had not, the trial court would have granted appellee’s motion for directed verdict at the close of appellant’s evidence. However, to prevail, appellant was required to persuade the jury that she was discharged because of her handicap, which she apparently did not do. Appellant’s second and third enumerations have no merit.

3. In appellant’s last enumeration, she contends that the trial court erred in failing to give a certain jury instruction. We find no error, inasmuch as appellant’s request that the charge be given was not timely submitted and was not adjusted to the evidence. OCGA § 5-5-24 (b); Slaughter v. Linder, 122 Ga. App. 144 (176 SE2d 450) (1970).

Decided July 2, 1987

Rehearing denied July 15, 1987.

David R. Sweat, Jeanne M. L. Player, for appellant.

E. Wycliffe Orr, for appellee.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Carley, Judge. Benham, Judge, Banke, Presiding Judge,

text:
    74019.
    MILLER v. THE STATE.
    (359 SE2d 683)
   Carley, Judge.

Appellant was indicted for trafficking in cocaine. After a bench trial, he was found guilty. Appellant appeals from the judgment of conviction and sentence entered on the trial court’s finding of guilt.

In related enumerations, appellant’s sole contention on appeal is that his motion to suppress was erroneously denied by the trial court. The search of appellant was conducted pursuant to his arrest at Hartsfield International Airport. The evidence adduced at the hearing on appellant’s motion to suppress authorized a finding of the existence of factual circumstances which are very similar to those which existed in Reid v. State, 179 Ga. App. 144 (345 SE2d 635) (1986). In that case, we held that the arrest and the search incident thereto were valid. Of course, there are some factual differences between the case sub judice and Reid, and, indeed, rarely do we have two cases on all fours factually. Thus, the issue for resolution in this case is whether those factual differences are such as to require a different legal result from that which was reached in Reid.

Here, as in Reid, it is undisputed that appellant exhibited suspicious “leg bulges” when he exited the plane from Miami, a known source city for the distribution of drugs. As in Reid, appellant’s suspicious “leg bulges” attracted the immediate attention of two agents of the Federal Drug Enforcement Administration, Agents Markonni and Johnson. As was likewise true in Reid, appellant was placed under surveillance by both agents and was subsequently confronted, questioned, arrested and searched by Agent Markonni. However, unlike Reid, Agent Markonni did not testify at the hearing on appellant’s motion to suppress. Only Agent Johnson, who had observed and overheard all that transpired between Agent Markonni and appellant, testified. Agent Johnson testified that his own personal experience with the investigation of suspicious “leg bulges” like those exhibited by appellant was such that 95% resulted in the discovery of illegal drugs. Accordingly, unlike Reid, there is no evidence in this case that Agent Markonni had similar personal experiences with the investigation of suspicious “leg bulges” and, therefore, the experience of Agent Markonni is not a factor which enters into the existence of probable cause for the arrest of appellant. But, for purposes of comparison only, see Reid v. State, supra and the numerous “Markonni” federal cases cited therein. However, it is undisputed that Agent Johnson, whose personal experience is of record in this case, discussed appellant’s suspicious “leg bulges” with Agent Markonni prior to the initial confrontation and subsequent arrest. “Information obtained by police officers engaged in an investigation may be used by another officer common to that investigation as a reliable basis for the establishment of probable cause. [Cits.]” Parker v. State, 161 Ga. App. 37, 39 (3) (288 SE2d 852) (1982). Accordingly, it strains credibility to opine that it was not a fact within Agent Markonni’s knowledge at the time of the arrest that the probable explanation for appellant’s suspicious “leg bulges” was that they constituted two illegal caches of drugs. “ ‘[T]he unusual size and shape of the bulge [s] and, given [their] unusual size and shape, [their] abnormal position on [appellant’s] person alone provided not only reasonable suspicion but also probable cause for [his] arrest.’ [Cit.]” Reid v. State, supra at 146-147.

It is also true that, unlike in Reid, appellant did not voluntarily lift his trouser legs. However, in this case, the agents immediately noticed that appellant had abnormally large bulges in both boots, as opposed to just one in Reid. Furthermore, as in Reid, the appellant answered Agent Markonni’s question in the negative when asked if he had anything in his boots other than his feet and socks. Based upon the agents’ observations, this answer was obviously untrue. Under Reid, probable cause existed for the arrest of appellant and, therefore, the search incident to his arrest was valid. Appellant’s “false response to the inquiry about the object[s] in his [boots], coupled with [the agents’] observation and experience, provided the probable cause required for [appellant’s] warrantless arrest. Accordingly, the search incident to that arrest was not violative of the Fourth and Fourteenth Amendments and the fruits of that search were properly considered by the trial court in rendering its decision.” Reid v. State, supra at 148.

Judgment affirmed.

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

Benham, Judge,

concurring specially.

In the original decision, I joined Presiding Judge Banke along with Judge Sognier in dissenting, mainly due to my reservation concerning the majority’s reliance upon Reid v. State, 179 Ga. App. 144 (345 SE2d 635) (1986). However, after a more careful analysis of the facts on rehearing, I now specially concur in the judgment of the majority, and I write separately to further develop the facts.

While there are striking factual similarities between the case sub judice and Reid v. State, there is one note-worthy difference: Reid was a leg-bulge-consent case and this case is not. Therefore, Reid is a weak peg on which to hang the results of this case. However, the facts here provide a more compelling basis for the result reached by the majority. My concurrence is bottomed on the very detailed evidence given here which is sufficient to meet the probable cause requirement. The legal requirements of the drug courier profile are sufficiently outlined in Reid v. State and a host of other cases too numerous to mention. When this profile is superimposed on the facts of this case, we see that the fact finder was authorized to find significant similarities: appellant boarded the plane from a known drug source city after having purchased his ticket with cash. He was the last individual to leave the plane, bypassing the service representative and going directly to the monitor. He wore tight blue jeans and his boots were abnormally large to the extent that they noticeably stuck out along .the calves of his legs. He walked around aimlessly in the airport with a small tote bag which appeared to be completely empty, and he had no baggage claims. When approached by officers, his nervousness was evident from his profuse perspiration, shaking, and heavy breathing. All of this conduct, in addition to that outlined in the majority opinion, was consistent both with the drug courier profile and with law enforcement experience which showed that that combination of facts usually indicated drug activity. Therefore, the totality of the circumstances was sufficient not only for a Terry stop but also for a probable cause arrest.

Banke, Presiding Judge,

dissenting.

At the time of the appellant’s arrest, the sum total of the incriminating information known to the arresting officers was as follows: (1) The appellant had arrived at the airport from Miami, which was described as a known “source city” for the distribution of illegal drugs; (2) he had abnormally large boots, one of which protruded more than the other along his calf; (3) he had purchased a one-way airline ticket with cash; (4) he had no checked baggage and carried only a small tote bag with few contents; (5) he had appeared increasingly nervous during the confrontation with Markonni, and (6) he had denied that anything was concealed in his boots yet refused to lift his trouser leg to enable the officers to verify this.

While this information may have been sufficient to give rise to an articulable suspicion that the appellant was transporting contraband, I do not consider it sufficient to establish probable cause for his arrest. As in Reid v. Georgia, 448 U. S. 438, 441 (100 SC 2752, 65 LE2d 890), “[t]he other circumstances describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure.” See also State v. Smith, 164 Ga. App. 142 (2) (296 SE2d 141) (1982); Pullano v. State, 169 Ga. App. 377 (312 SE2d 857) (1983); Del Rio v. State, 171 Ga. App. 381 (1) (320 SE2d 236) (1984).

Decided June 18, 1987

Rehearing denied July 15, 1987

Jerome L. Froelich, Jr., for appellant.

Certainly, the recent case of Reid v. State, 179 Ga. App. 144 (345 SE2d 635) (1986), involved factual circumstances which were similar in many respects to those in the present case; however, it also involved an important additional element which is missing from the present case. In Reid, we held that probable cause existed for the arrest of an airport suspect who, after having previously denied to the arresting officer that he was carrying anything concealed in his sock, voluntarily lifted his trouser leg to reveal a cylinderical object protruding from the sock — an object which the arresting officer described as being “ ‘consistent with a bag containing controlled substances that I have seen many times.’ ” Id. at 145. While the Reid court understandably found probable cause for the suspect’s arrest under these circumstances, it did not, as the majority in the present case implies, suggest that the mere presence of a “suspicious bulge” in a traveler’s clothing, coupled with a refusal on the part of the traveler to explain the bulge to the satisfaction of police officers, would itself constitute probable cause for the traveler’s arrest.

In the present case, Agent Johnson conceded that he never actually saw the package containing the contraband until after Miller’s arrest and that his observations up to that point were consistent with the possibility that the appellant might be transporting such lawful items as cigarettes or currency inside his boots. While the existence of probable cause in Reid was clearly premised on observations which took place prior to the arrest, the existence of probable cause in the present case was established by observations which were not possible until after the arrest had already been made. For this reason, I would hold that the arrest was unlawful and that the search incident to it was consequently violative of the appellant’s rights under the Fourth and Fourteenth Amendments to the United States Constitution.

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

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.


author: Carley, Judge.

text:
    74230.
    CHAPPELL v. THE STATE.
    (359 SE2d 686)
   Carley, Judge.

Appellant was arrested at Atlanta’s Hartsfield International Airport and a quantity of cocaine was seized from his person. Appellant’s motion to suppress was denied and he was then found guilty of trafficking in cocaine after a bench trial. He appeals from the judgment of conviction and sentence entered on the trial court’s finding of guilt.

Appellant enumerates as error only the denial of his motion to suppress. At the hearing on appellant’s motion, Agent Markonni of the Federal Drug Enforcement Administration testified to the following: He observed appellant exit a plane from Miami, a drug source city. Appellant had an unnatural bulge on the inside of each leg. Appellant’s inquiry regarding a connecting flight enabled Agent Markonni to notice that the name on appellant’s ticket was “Chap-pland.” By checking reservations records, Agent Markonni determined that the “Chappland” ticket had been issued only a few minutes before flight time and had been purchased with cash. The purchaser had given no telephone number and had checked no baggage. Based upon his experience, Agent Markonni considered such factors as he had observed and learned regarding appellant to be indicative of drug courier activity. Accordingly, the decision was made to stop appellant and to question him. Agent Markonni and another agent did so. “The encounter took place in the airport concourse. The agents wore no uniform and displayed no weapon. They did not summon the defendant to their presence, but approached him and properly identified themselves. All information was requested — not demanded. ‘Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest.’ [Cits.]” Rasnake v. State, 164 Ga. App. 765, 768 (1) (298 SE2d 42) (1982). When he was asked his name, appellant responded “Chappell” and produced identification bearing that name. Agent Markonni told appellant of the purpose of the questioning. When asked if there was anything in his boots other than his feet and socks, appellant responded that there was not. Agent Markonni then asked if appellant would mind raising his trouser legs above his boots. When appellant voluntarily did so, bulges were clearly visible beneath his socks. Agent Markonni felt the bulges and, based on his experience, suspected them of being bags of cocaine. Appellant was then arrested for violation of the Georgia Controlled Substances Act and the bags were removed from his socks. The bags contained 60.2 grams of cocaine.

Decided July 2, 1987.

Steven E. Lister, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

This evidence clearly authorized the trial court to find that Agent Markonni had sufficient articulable and reasonable suspicion to conduct a Terry-type stop of appellant. Rasnake v. State, supra. Although appellant presented evidence which directly contradicted Agent Markonni’s testimony in some respects, the trial court was not required to believe appellant’s witness or to disbelieve Markonni. “The weight of the evidence and credibility of witnesses are questions for the [triors] of fact. [Cit.]” Webb v. State, 154 Ga. App. 395, 396 (1) (268 SE2d 438) (1980). While he was lawfully stopped for questioning, appellant freely and voluntarily consented to an inspection of his legs by Agent Markonni. See Connor v. State, 130 Ga. App. 74 (202 SE2d 200) (1973). As a result of that inspection, Agent Markonni verified the existence of suspicious bulges in appellant’s socks, although appellant had denied having anything in them. Under the totality of these circumstances, Agent Markonni had probable cause to arrest appellant, and, in the search incident to the arrest, the seizure of the cocaine was justified. Reid v. State, 179 Ga. App. 144 (345 SE2d 635) (1986). The evidence authorized the trial court to deny appellant’s motion to suppress and to find him guilty of trafficking in cocaine. Reid v. State, supra. See also Miller v. State, 183 Ga. App. 702 (359 SE2d 683) (1987), reh. denied July 15, 1987.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: McMurray, Presiding Judge.

text:
    74090.
    GEORGIA AMERICAN INSURANCE COMPANY v. MILLS.
    (359 SE2d 697)
   McMurray, Presiding Judge.

Plaintiff filed this action against two insurance companies. Plaintiff’s claim against defendant Georgia American Insurance Company was tried before a jury resulting in a verdict and judgment in favor of plaintiff and against this defendant. Plaintiff’s original complaint names a second defendant, Southeastern Fidelity Insurance Company, which was served and filed its answer. Subsequently, and without any explanation in the record, plaintiff filed an amendment to her original complaint on which the caption indicates only one defendant, Georgia American Insurance Company. In this amendment, plaintiff only struck “the figure of $75,000.00 in her complaint” and inserted in lieu thereof “the sum of $250,000.00.” The record shows no participation thereafter in the case sub judice by defendant Southeastern Fidelity Insurance Company. However, as the record shows the initiation of an action against defendant Southeastern Fidelity Insurance Company and fails to show any termination of that action, it remains pending. No entry was made as to finality of the judgment in favor of plaintiff and against defendant Georgia American Insurance Company. See OCGA § 9-11-54 (b).

“Entry of judgment as to one or more but fewer than all claims or parties is not a final judgment under OCGA § 5-6-34 (a) unless the trial court makes an express entry of final judgment and determination that no just reason for delaying finality of the judgment exists. Culwell v. Lomas &c. Co., 242 Ga. 242 (248 SE2d 641). Hence, where the action remains pending in the court below and no entry of finality of judgment has been made by the trial court, the appeal is premature unless appellant follows the requisites of OCGA § 5-6-35. Ward v. Charles D. Hardwick Co., 149 Ga. App. 546 (254 SE2d 872). There is no certificate for immediate review nor application to this court for permission to appeal. The appeal must be dismissed. Hardy v. Ga. Power Co., 151 Ga. App. 803 (261 SE2d 749).” Sidwell v. Wheeler, 178 Ga. App. 732, 733 (344 SE2d 527). See also DeKalb County Teachers Fed. Credit Union v. C & S Nat. Bank, 176 Ga. App. 120 (335 SE2d 464).

Appeal dismissed.

Sognier and Beasley, JJ., concur.

On Motion for Rehearing.

On motion for rehearing defendant Georgia American Insurance Company refers us to certain colloquy at trial wherein the trial court in effect rules that the pre-trial order in the case sub judice limits the action to plaintiff and defendant Georgia American Insurance Company. The trial court’s ruling was over the protest of plaintiff’s counsel that he had not dismissed plaintiff’s action against Southeastern Fidelity Insurance Company.

Upon review of the pre-trial order we do find that defendant Southeastern Fidelity Insurance Company is omitted from the caption and that the order states in part: “Unless otherwise noted, the names of the parties as shown in the caption to this order are correct and complete and there is no question by any party as to the misjoin-der or nonjoinder of any parties.” However, we do not view this language as sufficient to terminate the action against defendant Southern Fidelity Insurance Company. While the pre-trial procedure under OCGA § 9-11-16 has broad general application, the method for dismissing an action is specifically provided under OCGA § 9-11-41 and there has been no utilization of the provisions of OCGA § 9-11-41. As we do not view the dismissal of a party as being within the purview of the pre-trial procedure, the action against defendant Southeastern Fidelity Insurance Company remains pending and the statement to the contrary in the pre-trial order is incorrect and ineffectual.

Decided June 24, 1987

Rehearing denied July 15, 1987.

Terry A. Dillard, Bryant H. Bower, for appellant.

Berrien L. Sutton, for appellee.

Motion for rehearing denied.


text:
    74178.
    PICKELSIMER v. TRADITIONAL BUILDERS, INC. et al.
    (359 SE2d 719)
   Benham, Judge.

Having been given a large old frame house, appellant got permission from appellees Wendell E. Johnson, Tommy A. Lee, and Richard Wiggins to place it on a lot they owned, then had the house dismantled and moved from Sandersville to Augusta. He also contracted to purchase the lot from those three appellees for $25,000, paying $2,500 earnest money therefor. Appellant planned to have the house restored and contracted with appellee Remodeling Specialists, Inc., to perform the restoration at an estimated cost of $180,000. The contract committed appellant to make monthly payments to appellees for the construction costs. Appellant also sought appellees’ assistance in obtaining a construction loan, and, to that end, the individual appellees conveyed title to the lot to Traditional Builders, Inc. Traditional Builders signed a new contract with appellant in March of 1981, incorporating by reference the previous contracts and binding appellant to pay $25,000 for the lot and the cost of reconstruction plus 15 percent. Appellant was to pay Traditional Builders on a monthly basis while the work was being done. By the end of May 1981, appellant had paid a total of $49,000 in costs, but had not secured a loan to finance his project. The builders ceased construction on the house at that time but resumed work late in 1981, although appellant still had not secured financing and was no longer paying according to the contract. Appellees completed the work and put the house on the market for sale. Appellee Johnson eventually purchased the house in August 1983. In January 1985, appellant filed suit against the corporate and individual appellees, alleging fraud, unjust enrichment, and breach of contract. At the close of plaintiff’s evidence, the trial court entertained and granted appellees’ motion for a directed verdict. Appellant brings this appeal, and we affirm.

1. Appellant contends that the trial court erred in granting a directed verdict in appellees’ favor on the ground that appellant had failed to establish a claim for money had and received and/or unjust enrichment. We disagree.

An action for money had and received will only lie “where there is no actual assumpsit, no real contract, but where some duty is deemed sufficient to justify the court in imputing a promise to perform it . . . [Cit.] ... An action for money had and received is founded upon the equitable principle that no one ought unjustly to enrich himself at the expense of another. . . Jasper School Dist. v. Gormley, 184 Ga. 756, 758 (193 SE 248) (1937). (Emphasis supplied.) “The theory of unjust enrichment applies when as a matter of fact there is no legal contract . . . but where the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefited party equitably ought to return or compensate for. [Cits.]” Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777 (2) (300 SE2d 180) (1983). (Emphasis supplied.)

Our review of the record reveals that appellant initially brought the action based on the written contract and attached a copy of one of the contracts to his complaint, and that it was well established during the course of the trial that appellant relied on the valid express written contracts he had entered into with appellees. Under these circumstances, the trial court did not err in its ruling.

2. Appellant also asserts that the verdict should not have been directed against him for failure to establish a cause of action for conversion. Appellant argues in his brief that appellees converted appellant’s realty when they completed the house restoration and sold it without any “input” from him. We find that the record does not substantiate appellant’s contentions. Appellant consented to having the title to the house put in appellee Traditional Builders, Inc.’s name so that it could secure a construction loan to complete the restoration. Appellant then failed to fulfill his obligations under the contract, although appellees gave him ample opportunity to do so. His inability to secure sufficient funding to complete his project left appellees no recourse but to complete the restoration and otherwise try to minimize their losses stemming from appellant’s breach of contract. There was no evidence of conversion and, in fact, we find no specific reference to an action for conversion in the record. The trial court ruled correctly in this regard.

3. We also find the trial court acted correctly in directing a verdict against appellant on the issue of fraud and conspiracy. To substantiate a claim of fraud, a plaintiff must prove “(1) [t]hat the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made. [Cit.]” Eckerd’s Columbia v. Moore, 155 Ga. App. 4 (1) (270 SE2d 249) (1980). Appellant was never able to state the specific representations that he claims were the basis of the alleged fraud. The closest he could come to producing misrepresentations by appellees was appellee Lee’s statement that he would replace the bricks he was borrowing from appellant, and that in early May 1981, Lee told appellant’s wife (who was not a party to appellant’s action) that he needed money to make the payroll. Even assuming that these statements were ones upon which appellant could base his fraud claim, he failed to produce evidence to meet any of the other four elements of the cause of action. In fact, appellant admitted that even if appellees had performed the contract to his complete satisfaction, he still would not have performed under the contract. There was no basis for finding that appellees perpetrated a fraud on appellant. Id. Nor was there any evidence of a conspiracy by appellees against appellant, as appellant contends, citing Grainger v. Jackson, 122 Ga. App. 123 (176 SE2d 279) (1970). In Division 2 of Grainger, the court used the fact that there was sufficient evidence of fraud by at least one of the defendants to reach the issue whether there was sufficient evidence of a conspiracy to bind the others. Since there was no evidence of fraud committed by any of the appellees here, there is no basis for addressing the conspiracy issue.

Decided July 1, 1987

Rehearing denied July 15, 1987

William R. McCracken, for appellant.

4. Appellant’s final enumeration is that the trial court erred in refusing to allow him to take the stand again, after he had rested his case, and testify about the alleged fraudulent statements made to him. It is within the discretion of the trial court to allow a case to be reopened to hear additional evidence, and this court will not reverse unless there has been an abuse of that discretion. Newman v. Booker & Co., 133 Ga. App. 209 (210 SE2d 329) (1974). Our review of the record reveals that the trial court was extremely indulgent in allowing appellant to present his case, and that he had been given every opportunity to present his evidence before that point in the argument on the motion for directed verdict. This enumeration is without merit.

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs in Divisions 2, 3, and 4, and in the judgment.

Patrick J. Rice, William J. Williams, for appellees.