text:
    A98A1636.
    SANCHEZ v. THE STATE.
    (508 SE2d 185)
   Smith, Judge.

Hernán Villa Sanchez appeals from an order of the superior court of Rockdale County revoking his probation. The trial court determined that Sanchez, an illegal alien, violated two conditions of his probation by remaining within the state of Georgia after being banished from the state and failing to return to his native Mexico as the court had ordered him to do within thirty days of his release. We granted Sanchez’s application for discretionary appeal, and we reverse.

1. The trial court erred both in its original sentence conditioning Sanchez’s probation on banishment from the state, and by revoking his probation on that basis. A trial court may order that a probationer “[r]emain within a specified location.” OCGA § 42-8-35 (6). But Article I, Section I, Paragraph XXI of the Constitution of the State of Georgia proscribes banishment “beyond the limits of the state” for a crime. This prohibition is “firmly fixed in our fundamental law.” State v. Collett, 232 Ga. 668, 669 (208 SE2d 472) (1974).

A court may banish a probationer from certain areas of the state as a condition of probation. See, e.g., Edwards v. State, 173 Ga. App. 589, 590-591 (1) (327 SE2d 559) (1985) (banishment from judicial circuit); Wilson v. State, 151 Ga. App. 501, 504 (8) (260 SE2d 527) (1979) (banishment from county). But such a condition must be related logically to the rehabilitative purposes of the sentence. See Collett, supra at 671. See also Wyche v. State, 197 Ga. App. 148, 149 (2) (397 SE2d 738) (1990) (physical precedent only) (banishment for drug offense reasonably related because removes offender from source of drugs). Banishment, even from a single county, is “unreasonable as a matter of law,” for the “totally unrelated” crime of battery. Dudley v. State, 230 Ga. App. 339, 341 (496 SE2d 341) (1998) (banishment from single county and requirement of permission to leave home county). In the present case, Sanchez pled guilty to the offense of battery. As in Dudley, banishment as a condition of probation does not bear a logical relationship to the rehabilitative purposes of a sentence for battery, particularly when banishment is extended to the entire state.

2. The order to return to Mexico also exceeded the trial court’s authority. 8 USC § 1229a (a) (3) (1998) specifies removal or deportation proceedings under that section as the “sole and exclusive procedure” for removing aliens from the United States. The Eleventh Circuit Court of Appeals has said of § 1229a (a) (3) that “the language is quite clear: immigration judges alone have the authority to determine whether to deport an alien.” United States v. Romeo, 122 F3d 941, 943 (11th Cir. 1997). Since Romeo, the first case to interpret the new provisions of § 1229a (a) (3), the Eleventh Circuit has consistently held that only the Attorney General, through the Immigration and Naturalization Service, has the power to seek deportation, and that only immigration courts may order deportation. See United States v. Giraldo-Prado, 150 F3d 1328 (11th Cir. 1998); United States v. Alborola-Rodriguez, 153 F3d 1269, 1272 (11th Cir. 1998); United States v. Hernandez, 145 F3d 1433 (11th Cir. 1998); United States v. Biro, 143 F3d 1421 (11th Cir. 1998).

Ordering a defendant to leave the country as a condition of probation constitutes an order of deportation. United States v. Abushaar, 761 F2d 954 (3rd Cir. 1985). In Abushaar, the Third Circuit Court of Appeals held that “the ‘banishment’ condition of [defendant’s] probation amounts, de facto, to deportation and circumvents the law and regulations relating to deportability of aliens.” Id. at 959. The court declared that “a condition of probation may not circumvent another statutory scheme,” and that deportation is “exclusively the province of the Attorney General, through the Immigration and Naturalization Service.” (Footnote omitted.) Id. at 960-961. We find the reasoning of the Third and Eleventh Circuits persuasive, and we hold that the trial court in this case had no authority to deport Sanchez or order him to spend his probation outside the United States.

3. Having determined that the order of banishment was erroneous, we must consider Sanchez’s failure to object either at the time of sentencing or at the subsequent revocation hearing. Generally, “issues not properly raised and ruled on below cannot be raised for the first time on appeal.” Hobdy v. State, 222 Ga. App. 625, 626 (475 SE2d 686) (1996). This Court will not consider constitutional issues not raised below. Massey v. State, 229 Ga. App. 123 (493 SE2d 255) (1997).

But the Supreme Court has made an exception to this general rule in “cases of ‘plain error.’ ” (Footnote omitted.) Lynd v. State, 262 Ga. 58, 60-61 (8) (414 SE2d 5) (1992). The Supreme Court defined plain error as “that which is ‘so clearly erroneous as to result in a likelihood of a grave miscarriage of justice’ or which ‘seriously affects the fairness, integrity or public reputation of a judicial proceeding.’ [Cit.]” Id. at 61, n. 2. Although Lynd was a death penalty case, this Court has applied the rule in a civil case to determine whether an error was sufficiently great so as “to constitute a plain error of which an appellate court can take notice sua sponte.” Drug Emporium v. Peaks, 227 Ga. App. 121, 125 (488 SE2d 500) (1997).

This Court has also applied the plain error rule in cases presenting “exceptional circumstances.” Putnam v. State, 231 Ga. App. 190, 193 (3) (498 SE2d 340) (1998) (physical precedent only); Taylor v. State, 186 Ga. App. 113, 114-115 (3) (366 SE2d 422) (1988). See also Presha v. State, 220 Ga. App. 124 (469 SE2d 293) (1996) (recognizing general principle but not applying). “In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” (Citations and punctuation omitted.) Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986) (on motion for reconsideration). See also Massey v. State, supra at 123-124 (recognizing “ ‘exceptional circumstances’ where the Court will excuse the failure and take notice of the error sua sponte. [Cit.]”).

Here, exceptional circumstances exist. Sanchez does not speak English and communicated through another individual, he was apparently unrepresented by counsel at both the sentencing and the probation revocation, and the error involves a constitutional violation as well as apparent preemption by federal law.

Decided October 20, 1998.

Heather C. Waters, for appellant.

Cheryl F. Custer, District Attorney, Charles C. Flinn, Assistant District Attorney, for appellee.

In Massey v. State, supra, cited by the State in support of its position, no exceptional circumstances were involved, and the appellant had appealed only the length of his banishment from one judicial circuit. This case is different. Sanchez is not appealing the length of his banishment, an area of law that is well settled, nor is Sanchez appealing a banishment from a county or judicial circuit. Sanchez is appealing an unauthorized order banishing him from the entire state in violation of the Georgia Constitution and ordering him to return to Mexico in violation of the exclusive authority of the immigration courts.

“It would seriously affect the fairness and integrity of the judicial system to allow an illegal and unauthorized sentence to stand.” Taylor v. State, supra at 115. This revocation of probation, based on conditions that violate the Georgia Constitution and exceed the power of the trial court, must be reversed.

Judgment reversed.

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

       “Although federal decisions are not binding on this Court, we consider their reasoning persuasive, and in the absence of pertinent Georgia authority we are free to follow it.” Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 529, n. 3 (484 SE2d 249) (1997). This is especially so where, as here, we are dealing with a matter in which the federal courts have exclusive jurisdiction.

       It is unclear whether this individual, a Mr. Rodriguez, was an official interpreter or simply a friend or relative of Sanchez.

       Some dispute exists concerning whether Sanchez was represented by counsel. The State claims that Sanchez had the benefit of counsel at both the guilty plea and the revocation hearing. The record, however, is at best ambiguous. It seems clear that Sanchez was unrepresented at the revocation hearing: the transcript indicates only that Sanchez appeared “pro se,” and an anonymous public defender responded, “No, your honor,” when asked if that lawyer had anything to say on behalf of Sanchez. The question of Sanchez’s representation at the guilty plea is less clear. Various signatures pin-porting to be those of attorneys appear on English-language documents such as the accusation, the request for trial, and sentence, as well as the Spanish-language guilty plea. But the guilty plea, on the line stating “Mi abogado es” (My lawyer is) contains the notation “N/A.” No transcript of the guilty plea appears in the record. We therefore cannot determine with any certainty from this record if Sanchez was actually represented by counsel with whom he could communicate at the time of sentencing.

       This also raises an issue of subject matter jurisdiction. See United States v. Alborola-Rodriguez, supra at 1272; United States v. Giraldo-Prado, supra.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A1677.
    LEWIS et al. v. LEASE ATLANTA, INC.
    (508 SE2d 188)
   Judge Harold R. Banke.

Lease Atlanta, Inc. (“Lease Atlanta”) sued George Williams Lewis and his guarantor, Veda F. Lewis (collectively “Lewis”), for breach of a vehicle lease agreement. In three enumerations of error, Lewis appeals the trial court’s order granting Lease Atlanta’s motion for summary judgment.

Under the lease agreement’s terms, Lewis promised to make 42 monthly installment payments on a day certain each month, totaling $19,764.78. The record shows that after Lewis failed to make payments for three consecutive months, Lease Atlanta repossessed the car, sold it, and brought this action to obtain the balance owed, late fees and attorney fees.

Lease Atlanta then moved for summary judgment, providing the executed lease agreement, a record of Lewis’ payment history, and an affidavit from Lease Atlanta’s manager which provided the proper foundation for those documents and attested to the events after repossession, including damages. Lewis responded with a brief in opposition. The brief was not verified, and no affidavits were attached. It contained no evidence. The trial court based its grant of summary judgment on a finding that Lewis “failed to file any supporting affidavits.” Held:

The trial court properly entered summary judgment against Lewis, who rested on mere allegations and failed to provide any evidence countering Lease Atlanta’s proof. OCGA § 9-11-56 (e). “Allegations, conclusory facts, and conclusions of law cannot be utilized to support or defeat motions for summary judgment. [Cits.]” Peterson v. Midas Realty Corp., 160 Ga. App. 333, 335 (287 SE2d 61) (1981).

Here, Lease Atlanta affirmatively demonstrated that Lewis failed to make his lease payments for three months and the precise amount of damages. The lease defined default as the failure to make any payment when due and provided for immediate repossession without notice in the event of default. On default, Lewis agreed to pay, among other things, all unpaid amounts due under the lease, all remaining monthly payments due after the date of termination, and all collection expenses. This proof affirmatively established that no question of material fact existed and that Lease Atlanta was entitled to summary judgment. Crown Ford, Inc. v. Crawford, 221 Ga. App. 881, 882 (473 SE2d 554) (1996). The motion also pierced the defenses pleaded in Lewis’ answer, offering the lease to establish its lack of ambiguity, and refuting Lewis’ claims of waiver, estoppel, and accord and satisfaction. Id. Lewis failed to respond with any facts showing a genuine issue for trial. In these circumstances, summary judgment was required. Id.; compare SPS Indus. v. Atlantic Steel Co., 186 Ga. App. 94, 99 (3) (366 SE2d 410) (1988).

Lewis’ failure to present any evidence demonstrating that the lack of verification on his brief was a mere clerical error precludes a finding that the trial court’s refusal to consider the unverified brief as evidence constituted an abuse of discretion. See Carter v. Myers, 204 Ga. App. 498, 500 (2) (419 SE2d 747) (1992) (refusal to consider improperly supported evidence opposing summary judgment motion not error); see also Mazdak Auto &c. v. Midcontinental Group, 231 Ga. App. 859 (501 SE2d 44) (1998) (no abuse of discretion to refuse to consider evidence opposing summary judgment which failed to comply with the procedural requisites of OCGA § 9-11-56).

Decided October 21, 1998.

Douglas J. Davis, for appellants.

Frederick J. Hanna & Associates, Frederick J. Hanna, Elizabeth C. Whealler, Jerry C. Tootle, Jr., for appellee.

Lewis contends that the lease agreement was actually a security interest triggering OCGA § 10-1-36’s notice requirements, which Lease Atlanta failed to satisfy. However, because Lewis was not bound to renew the lease or become the owner of the vehicle and the residual purchase option price was not nominal or even unreasonably low, we must reject this contention. OCGA § 11-1-201 (37); see Mejia v. C & S Bank, 175 Ga. App. 80, 81-82 (332 SE2d 170) (1985). The remaining arguments need not be addressed in light of Lewis’ failure to offer any admissible evidence in opposition to Lease Atlanta’s motion.

Judgment affirmed.

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


text:
    A98A1726.
    BURRAGE v. THE STATE.
    (508 SE2d 190)
   Judge Harold R. Banke.

Melvin Burrage was convicted of four counts of child molestation. In his sole enumeration of error, he challenges the sufficiency of the evidence.

The case arose after the victim’s mother left the seven-year-old victim, her five-year-old sister, and another five-year-old with Bur-rage, a family friend. Although the children were to spend the night, they insisted on coming home after remaining with Burrage for several hours. The victim appeared withdrawn and disobedient on her return. After she was caught smoking a cigarette, her mother arranged for her to telephone her grandmother. During that conversation, the victim claimed that Burrage taught her to smoke and had “messed” with her.

The victim testified that the evening she, her sister and her friend stayed with Burrage, he made her smoke, took her into his bedroom and touched her chest, buttocks, and vagina. She also stated that he stuck “his thing in mine” and his tongue in her mouth. When he was finished, she felt “sad and stuff” and asked to go home. The victim’s sister testified that when the victim came back into the living room she was crying and asked to go home. Held:

The evidence, viewed in the light most favorable to the verdict, was sufficient to permit the trier of fact to find all the essential elements of the crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The pertinent elements of child molestation are (1) performing an immoral or indecent act (2) to or in the presence of or with any child under the age of 16 (3) with the intent to arouse or satisfy the sexual desires of either the child or the perpetrator. OCGA § 16-6-4 (a).

Decided October 21, 1998.

Gregory S. Dickson, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

The victim’s testimony that Burrage touched her breast, buttocks, and vagina with his hand and inserted his penis in her vagina was sufficient to establish each element of every crime charged. In actuality, Burrage seeks a reweighing of the evidence. The law will not permit this. Smith v. State, 226 Ga. App. 150, 152 (2) (485 SE2d 538) (1997).

Notwithstanding Burrage’s argument to the contrary, Georgia law does not require corroboration of a child molestation victim’s testimony. Gable v. State, 222 Ga. App. 768, 770 (1) (476 SE2d 66) (1996). Moreover, the testimony of the victim’s social worker, mother, grandmother, and sister corroborates her statements sufficiently to meet the corroboration requirements set for other crimes. See Parkerson v. State, 265 Ga. 438 (2) (457 SE2d 667) (1995). We need not reach Burrage’s contention that the four charges should have been merged because that argument was not enumerated as error. Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997) (appellants may not enlarge their enumerations through their briefs); but see Culver v. State, 230 Ga. App. 224, 234 (13) (496 SE2d 292) (1998); King v. State, 209 Ga. App. 529, 532 (4) (433 SE2d 722) (1993).

Judgment affirmed.

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


author: Judge Harold R. Banke. Andrews, Chief Judge,

text:
    A97A0238.
    HARTLEY et al. v. MACON BACON TUNE, INC.
    (507 SE2d 259)
   Judge Harold R. Banke.

Robin T. Hartley and his wife, Teresa L. Hartley, sued Macon Bacon Time, Inc., d/b/a Precision Time (“Precision Tune”) for personal injuries and loss of consortium respectively after Robin Hartley allegedly sustained injuries from a slip and fall at Precision Tune. The Hartleys (collectively “Hartley”) appeal the trial court’s grant of summary judgment.

Viewed in the light most favorable to Hartley, the evidence was as follows. On a rainy weekend, Charles Marsh picked up Hartley to go to a mall. While en route, Marsh experienced some mechanical difficulty with his vehicle and they proceeded to Precision Tune where Marsh sought out his son-in-law, Curtis Moss, a mechanic, to diagnose the trouble. Moss directed them and the car into a service bay. As Marsh and Moss investigated the problem with the hood upraised, Hartley attempted to join them. Hartley exited the vehicle and started walking toward Moss, who saw him reach the front corner of the car then suddenly slip and fall, landing on his back. Hartley stated that he slipped on some light colored liquid which appeared to be new oil. Moss testified, “[w]hen I picked him up off the floor and got him a chair, I did notice some fluid and water on the floor.”

Moss, Precision Tune’s shop manager, testified that the shop had no set hour or times for inspection and the general procedure was “to straighten up and make sure it was spotless” at the end of the day. He admitted that he had not instructed anyone to mop or sweep that particular day and that he had not inspected the floor before Hartley arrived. According to Moss, rainwater was on the floor because every time a car came in, water dripped off the car. Moss also testified that he routinely allowed customers to remain in the service bay area to watch him work on their cars.

Precision Tune offered the testimony of Jimmy Davidson, a salesman who arrived after Hartley fell. Davidson, who regularly transacted sales with the owner, claimed that the floor was obviously wet from rainwater. Although Davidson testified that he overheard Moss tell Hartley, “I told you, you were too drunk to be walking around this wet floor with those flip-flops on,” he admitted that he could not honestly say that Hartley appeared to have been drinking.

Precision Tune moved for summary judgment on several grounds. It contended that Hartley failed to show it wilfully or wantonly caused his injury, it exercised due care in keeping its premises safe to the general public, and Hartley failed to exercise ordinary care for his own safety. The trial court awarded summary judgment as a matter of law. Held:

We have carefully reconsidered this case in light of Robinson v. Kroger, 268 Ga. 735 (493 SE2d 403) (1997). Robinson is, of course, binding precedent. Ga. Const. 1983, Art. VI, Sec. VI, Par. VI; Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 827 (2) (482 SE2d 720) (1997). Although this case may well result in a defense verdict, we believe that material issues of disputed fact foreclosed summary judgment.

Hartley’s legal status under OCGA §§ 51-3-1; 51-3-2 is an issue remaining to be tried. Although Precision Tune contends that Hartley was a trespasser or a licensee, Hartley asserts that he was an invitee, lawfully on the business premises in connection with the repair of Marsh’s vehicle and “for the purpose of shopping for and assessing the business’ service and parts prices.” Pretermitting any decision about Hartley’s status, summary judgment was not appropriate even assuming without deciding that Hartley was a licensee. Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 876 (2) (392 SE2d 535) (1990).

An owner or occupier is subject to liability to a licensee for injury caused by a condition on the property, but only if the owner (a) knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to the licensee, and should expect the licensee will not discover or realize the danger; and (b) fails to exercise reasonable care to make the condition safe or to warn the licensee of the condition and risk involved. London Iron &c. Co. v. Abney, 245 Ga. 759, 761 (2) (267 SE2d 214) (1980); Bunch v. Stanton, 174 Ga. App. 233, 235 (1) (329 SE2d 538) (1985). See Patterson v. Thomas, 118 Ga. App. 326, 328 (163 SE2d 331) (1968) (jury question as to whether defendant created unreasonable risk for licensee who slipped on rug placed on slippery floor).

Where an injury is caused by a condition on the property, the act of the owner must be a wilful and wanton act in order for an injured licensee to recover. Brooks v. Logan, 134 Ga. App. 226, 228 (1) (213 SE2d 916) (1975). However, it is usually wilful or wanton not to exercise ordinary care to prevent injury to a person who is known to be or may reasonably be expected to be within a hidden peril on one’s premises. Brooks, 134 Ga. App. 228 (1).

After the presence of a licensee is known, he must be treated with the same care as an invitee as to active negligence, and he must be warned by the exercise of ordinary care as to hidden dangers. Cooper v. Corp. Prop. Investors, 220 Ga. App. 889, 891 (470 SE2d 689) (1996); Wade v. Mitchell, 206 Ga. App. 265, 267 (2) (c) (424 SE2d 810) (1992). Thus, after Precision Tune knew that Hartley was on its premises, it was required to use ordinary care and diligence to avoid injuring him. See Moon v. Homeowners’ Assn. &c., 202 Ga. App. 821, 823 (2) (415 SE2d 654) (1992); Adams & Adams, Ga. Law of Torts (1996 ed.), § 4-4, p. 108. Inasmuch as the evidence is disputed as to whether the water and oil came to be on the floor while Hartley was on the premises, we cannot say that the active negligence cases do not apply. Trammell v. Baird, 262 Ga. 124, 126 (413 SE2d 445) (1992).

Notwithstanding Precision Tune’s claim, no admissible evidence showed that Moss instructed Hartley to remain inside the car or warned him to watch his step. Davidson’s testimony as to what he purportedly overheard was inadmissible hearsay. Matthews v. Wilson, 119 Ga. App. 708, 711 (168 SE2d 864) (1969).

Even if Precision Tune lacked actual knowledge of the hazard, constructive knowledge may be inferred when there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could have noticed and removed the hazard or the owner lacked a reasonable inspection procedure. Food Giant v. Cooke, 186 Ga. App. 253, 254 (1) (366 SE2d 781) (1988). Here, it is undisputed that Moss was in the immediate area of Hartley’s fall, and was watching Hartley as he suddenly slipped. Precision Tune offered no evidence that it had inspected the floor prior to Hartley’s arrival or that anyone had been instructed to mop or sweep it. According to Moss, Precision Tune had no regular inspection policy other than to tidy up before the employees left for the day. Whether the concurrent acts or omissions of failing to remove the rainwater that allegedly dripped from Marsh’s car or other vehicles or failing to discover and remove the other fluid from the garage floor constituted such negligence as would give rise to liability must be resolved by a jury. See Wade, 206 Ga. App. at 270 (4) (b) (distinguishing between pre-existing hazards and those arising after plaintiff’s arrival).

If it is determined that Hartley was a licensee, then evidence of Precision Tune’s imputed superior constructive knowledge will not save Hartley’s case, if the risk was not an unreasonable one. But a jury must decide whether Precision Tune should have realized the existence of an unreasonable risk to Hartley, if, in fact, this purported hazard constituted such a risk, and whether Precision Tune failed to exercise ordinary care to make the condition safe or to warn Hartley. Abney, 245 Ga. at 761 (2). Even assuming solely for the sake of argument that Precision Tune had a customary goal of “tidiness,” that fact, without more, is not sufficient to negate the possibility that on this specific occasion a deviation from that procedure occurred. Burke v. Bi-Lo, 212 Ga. App. 115, 117 (441 SE2d 429) (1994).

Precision Tune contends that Hartley was negligent for wearing flip flops, consuming alcohol, and failing to observe the substance on its floor. It claims that Hartley’s failure to exercise ordinary care for his own safety, entitled it to summary judgment. But questions of negligence, contributory negligence, diligence, and the exercise of ordinary care are solely for the jury except in plain and indisputable cases. Pique v. Lee, 218 Ga. App. 357, 358 (461 SE2d 302) (1995); Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 295 (322 SE2d 737) (1984). This is not such a case. Robinson, 268 Ga. at 743 (1).

Judgment reversed.

Pope, P. J., Johnson, P. J., Blackburn, Ruffin and Eldridge, JJ, concur. Andrews, C. J., dissents.

Andrews, Chief Judge,

dissenting.

This appeal was previously decided by this Court in a seven-judge opinion in Hartley v. Macon Bacon Tune, 227 Ga. App. 679 (490 SE2d 403) (1997). The Supreme Court granted a petition for writ of certiorari, vacated our judgment in the case, and remanded the case to this Court “for reconsideration of the merits of petitioner’s appeal in light of our holding in Robinson v. Kroger Co., [268 Ga. 735 (493 SE2d 403) (1997)].” Unpublished order of the Supreme Court dated January 23, 1998.

In Robinson v. Kroger Co., the Supreme Court reaffirmed that “in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Id. at 748-749. “Robinson also confirmed that under Lau’s Corp. v. Haskins, [261 Ga. 491 (405 SE2d 474) (1991)] a defendant moving for summary judgment ‘need no longer affirmatively disprove the nonmoving party’s case; instead the burden on the moving party may be discharged by pointing out by reference to the record that there is an absence of evidence to support the nonmoving party’s case.’ (Citations and punctuation omitted.) Robinson, supra, 268 Ga. at 747; [cit.]. Although Robinson readjusted this burden with regard to the second element of the cause of action (whether plaintiff lacked knowledge of hazard despite ordinary care), the burden remained the same with regard to the first element. Robinson, supra, 268 Ga. at 747-748. Where defendant points to an absence of evidence on the first element, plaintiff must present evidence the defendant had superior actual or constructive knowledge of the hazard, or else suffer summary judgment. [Cits.]” Hardee’s Food Systems v. Green, 232 Ga. App. 864-865 (502 SE2d 738) (1998).

In Hartley, we concluded that the evidence showed as a matter of law that the proprietor, Macon Bacon Tune d/b/a Precision Tune, was entitled to summary judgment under the second element of the cause of action. As to the second element, we noted that Hartley admitted he could have seen the puddle of oil before he stepped in it if he had been looking down at the floor, and that nothing prevented him from seeing the puddle. Id. at 680. Based on this admission, we concluded that, whether Hartley was considered to be a licensee or an invitee, he could not recover because, by not looking where he was stepping, he failed to exercise ordinary care for his own safety. Id. at 681-684.

In light of Robinson v. Kroger Co., our conclusion under the second element of the cause of action cannot stand. In Robinson, the Supreme Court stated that: “[W]e must disapprove of the appellate decisions which hold as a matter of law that an invitee’s failure to see before falling the hazard which caused the invitee to fall constitutes a failure to exercise ordinary care. We also take issue with the Court of Appeals’ holding in the case at bar that an invitee fails to exercise ordinary care for personal safety as a matter of law when the invitee admits she failed to look at the location where she subsequently placed her foot. Demanding as a matter of law that an invitee visually inspect each footfall requires an invitee to look continuously at the floor for defects, a task an invitee is not required to perform . . . since the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe for the invitee and continues to exercise such care while the invitee remains on the premises.” 268 Ga. at 743. Accordingly, I agree with the majority that a reconsideration in light of the holding of Robinson v. Kroger Co. requires that we conclude a jury issue is presented as to whether Hartley exercised ordinary care for his own safety under the second element of the cause of action.

However, we also concluded in Hartley that Precision Tune was entitled to summary judgment under the first element of the cause of action (whether Precision Tune had actual or constructive knowledge of the hazard). As to the first element, we concluded that “the record shows that Hartley produced no evidence that Precision Tune had actual or constructive knowledge of any oil on the floor. . . .” 227 Ga. App. at 681. We further stated: “Because Precision Tune discharged its burden under Lau’s Corp. by showing there was no evidence in the record to show that it had actual or constructive knowledge of the substance on the floor, Hartley could not rest on his pleadings, but was required to point to specific evidence giving rise to a triable issue on the superior knowledge issue. Lau’s Corp., supra at 491. As Hartley did not do so, the trial court did not err by granting summary judgment to Precision Tune.” Id. at 685.

There is nothing in Robinson v. Kroger Co. which could cause this Court to reconsider and change the conclusion it reached in Hartley that Precision Tune was entitled to summary judgment under the first element of Hartley’s slip and fall action. As this Court has recognized, Robinson adjusted the second prong of the slip and fall cause of action dealing with the plaintiff’s knowledge of the hazard, but left intact the first prong dealing with the defendant proprietor’s knowledge of the hazard. “[Cjareful examination of Robinson reveals that the focus of the Supreme Court’s analysis of the burden of proof in slip and fall cases was on the second prong of the elements of a foreign substance slip and fall cause of action concerning the plaintiff’s knowledge of the foreign substance (see Alterman Foods v. Ligon, 246 Ga. 620, 623-624 (272 SE2d 327)) and not the defendant’s actual or constructive knowledge of the foreign substance which falls within the first prong. See Robinson v. Kroger, supra at 746-747. . . . Consequently, we find the Supreme Court’s decision in Robinson did not change either the first prong of a plaintiff’s cause of action under Alterman Foods or the burden on movants for summary judgment on the first prong as established in Lau’s Corp. v. Haskins, supra.Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 680 (498 SE2d 748) (1998).

As noted above, the Supreme Court’s remand order to this Court stated that this case was remanded “for reconsideration of the merits of petitioner’s appeal in light of our holding in Robinson v. Kroger Co.” Nothing in Robinson v. Kroger Co. requires any change in our previous decision to affirm the grant of summary judgment to Precision Tune under the first prong of the cause of action dealing with whether Precision Tune had actual or constructive knowledge of the hazard. Nevertheless, the majority now reverses our previous decision on the first prong for reasons which have nothing to do with Robinson v. Kroger Co.

Without explanation, the majority has concluded that our previous decision misstated critical facts related to whether Precision Tune had constructive knowledge of the hazard under the first prong. In our previous decision, we clearly held by a five vote majority that “the record shows that Hartley produced no evidence that Precision Tune had actual or constructive knowledge of any oil on the floor. . . Hartley, 227 Ga. App. at 681. The present majority now concludes to the contrary that there is evidence in the same record sufficient to establish constructive knowledge on the basis that an employee of Precision Tune was in the immediate area of the hazard and could have easily seen and removed the hazard. Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 SE2d 366) (1968).

The record does not support this conclusion. Hartley was a passenger in the car when the driver pulled the car into the mechanic’s bay so the car could be checked out by a Precision Tune mechanic. The mechanic was standing in front of the car and moved up to the car to get the hood open as it came to a stop. The mechanic was standing in front of the car with the hood up doing a visual inspection of the car when Hartley exited the car from the passenger side. From where the mechanic was standing in front of the car, he could not see Hartley’s legs as he walked from the car. The mechanic testified that he had not done any visual inspection of the floor prior to Hartley’s slip and fall and that he did not see the floor before Hartley got out of the car. Hartley walked toward the front of the car and the mechanic saw him slip and fall at “the corner of the vehicle.” Hartley testified that he got out of the car, closed the door, “and started walking around to the front and stepped in some oil or something and fell, and [the mechanic] come around there and helped me up. . . .” These facts support this Court’s previous factual determination, and show that the Precision Tune mechanic was not in a position where he could have easily seen and removed the hazard before Hartley slipped and fell. “Showing that an employee was merely working in the immediate area of a foreign substance is not enough; the employee must have been in a position to have easily seen the substance and removed it.” (Citation and punctuation omitted.) Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 352 (496 SE2d 471) (1998); Hardee’s, 232 Ga. App. at 866-867. The Supreme Court did not remand this case to give this Court an opportunity to contradict itself on a factual matter unrelated to any reconsideration of the case in light of Robinson v. Kroger Co.

The majority further concludes that, because Precision Tune did not offer evidence of compliance with a reasonable inspection procedure, this failure to produce evidence was sufficient to create a jury issue as to whether Precision Tune had constructive knowledge of the hazard. Once again, the majority has reversed this Court’s previous holding on a first prong issue that has nothing to do with a reconsideration of this case in light of Robinson v. Kroger Co. As we stated in our previous decision in Hartley, under the Supreme Court’s ruling in Lau’s Corp., Precision Tune had no burden to produce evidence to negate Hartley’s claim that it had constructive knowledge; rather, it was entitled to rely on the absence of evidence in the record sufficient to show that the hazard had been on the floor long enough to have been discovered by a reasonable inspection. Lau’s Corp., 261 Ga. at 491, 495. In other words, as the Supreme Court held in Lau’s Corp., a defendant moving for summary judgment who does not carry the burden of proof at trial is not required to produce evidence that its alleged negligence was not the proximate cause of the plaintiff’s injury. Id. at 495. Rather, the defendant may demonstrate by reference to the record that there is an absence of evidence sufficient to establish that its alleged negligence was the proximate cause of the plaintiff’s injury. Id.

The record shows that there was an absence of evidence of how long the hazard was on the floor before Hartley stepped on it. Under Lau’s Corp., Precision Tune was entitled to point out by reference to the record that, even if it did not produce evidence of compliance with a reasonable inspection procedure, there is no evidence that the hazard had been on the floor long enough to have been discovered by a reasonable inspection. Without any evidence of how long the hazard had been on the floor, there is no reasonable basis for a trier of fact to conclude that it had been there long enough for knowledge of it to be imputed to Precision Tune. Without such evidence, logic dictates that no trier of fact could conclude, without speculating, that Precision Tune’s failure to adhere to reasonable inspection procedures was the proximate cause of Hartley’s slip and fall. As we stated in our previous Hartley decision, “Hartley also had the burden of showing that the oil was on the floor for a length of time sufficient for knowledge of the oil to be imputed to Precision Tune before Precision Tune had any obligation to show its inspection and cleaning procedures.” Hartley, 227 Ga. App. at 685. We reaffirmed this holding in our recent seven judge decision in Sharfuddin, where we stated that “[c]ases holding that a proprietor must first show that a reasonable inspection and cleaning program was used before the plaintiff is required to show how long the substance was on the floor either were decided before Lau’s Corp. eliminated the burden on movants to establish the nonexistence of any genuine issue of material fact or disprove the plaintiff’s cause of action, or were decided after Lau’s Corp. but erroneously relied upon implicitly overruled authorities decided before the decision in Lau’s Corp.” (Citation and punctuation omitted.) Sharfuddin, 230 Ga. App. at 686. Our whole court decisions in Blake v. Kroger Co., 224 Ga. App. 140, 142-150 (480 SE2d 199) (1996) and Johnson v. Autozone, 219 Ga. App. 390, 393 (465 SE2d 463) (1995) reached the same conclusion. Similarly, in our nine judge whole court opinion in Moore v. Kroger Co., 221 Ga. App. 520, 521 (471 SE2d 916) (1996), we addressed a slip and fall claim against Kroger in which Kroger produced no evidence that it had complied with reasonable inspection procedures. In concluding that the record failed to support the plaintiff’s claim that Kroger had constructive knowledge of the hazard, we held: “There is no evidence even suggesting that the foreign substance was on the floor for a length of time sufficient for knowledge of its presence to be imputed to Kroger such as would give rise to a finding of constructive knowledge of the hazard.” Id. at 521. In Haskins v. Piggly Wiggly, 230 Ga. App. at 351, we reached this conclusion again on similar facts. There was no evidence of Piggly Wiggly’s compliance with reasonable inspection procedures, yet we found no basis for concluding that Piggly Wiggly had constructive knowledge of the hazard because “Haskins failed to offer any evidence even suggesting that the foreign substance was present for a sufficient time for knowledge of its presence to be imputed to Piggly Wiggly.” Id. at 351.

Decided September 25, 1998

Reconsideration denied October 22, 1998.

Nelson & Lord, Ellis M. Nelson, for appellants.

Katz, Flatau, Popson & Boyer, Barbara S. Boyer, for appellee.

I am aware that our recent whole court decision in Straughter v. J. H. Harvey Co., 232 Ga. App. 29 (500 SE2d 353) (1998) relied upon a line of cases decided by this Court holding that “in order to withstand a motion for summary judgment, a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident.” Id. at 30. I pointed out in my dissent in Straughter that the cases relied upon by the majority are no longer valid because they derive their authority from pre-Law’s Corp. summary judgment procedure. Straughter, 232 Ga. App. at 33-40 (Andrews, C. J., joined by Birdsong, P. J., dissenting). By requiring the defendant proprietor to produce evidence to negate the plaintiff’s claim that the proprietor had constructive knowledge of the hazard, these cases violate the principle established in Lau’s Corp. and reaffirmed in Robinson v. Kroger Co., that a defendant moving for summary judgment who will not bear the burden of proof at trial has no burden to produce evidence to negate the plaintiff’s claim; rather, the defendant may rely on the absence of evidence in the record sufficient to establish the plaintiff’s claim. I also pointed out in Straughter, as I do so again here, that the cases relied upon by the majority are directly contradicted by other decisions of this Court which recognize and apply the principle established in Lau’s Corp.

As the majority in Straughter failed to do, the present majority has failed to acknowledge or address the contradictory authority published by this Court on this issue. I once again point out to the majority that this Court has a duty to forthrightly address and resolve the contradiction in its decisions.

       The Supreme Court vacated Hartley v. Macon Bacon Tune, 227 Ga. App. 679 (490 SE2d 403) (1997) due to that decision.

       Under the Restatement, Torts 2d § 332 (3) (Invitee Defined), according to the commentary, Hartley was an invitee. “It is not necessary that the visitor shall himself be upon the land for the purposes of the possessor’s business. The visit may be for the convenience or arise out of the necessities of others who are themselves upon the land for such a purpose.” Restatement, Torts 2d, § 332, Comment on (3) (g). “[A] child taken by a mother or nurse to a shop is a business visitor; and this is true irrespective of whether it is necessary for the customer to take the child with her in order to visit the shop.” Id.

       Although the owner of Precision Tune asserted that he had instructed Marsh not to come on the premises, Moss flatly denied that claim. Moss disclosed that when an investigator had come to take a recorded statement about the incident, “[everybody in the shop decided we didn’t see anything.” This factual dispute regarding Hartley’s status precludes summary judgment. Bishop, 194 Ga. App. 876 (2).


author: Beasley, Judge.

text:
    A98A1240.
    BILLUPS v. THE STATE.
    (507 SE2d 837)
   Beasley, Judge.

Billups appeals his conviction for possessing a firearm as a convicted felon (OCGA § 16-11-131) and carrying a concealed weapon (OCGA § 16-11-126). He contends the court erred in allowing evidence of a similar transaction, in denying his request for a mistrial prompted by the prosecutor arguing facts not in evidence, and in allowing the prosecutor to misstate the burden of proof during closing argument by not sustaining Billups’ objection. His motion for new trial, as amended, was denied.

Construing the facts in favor of the jury’s verdict, a mall security guard saw Billups in a loud dispute with a group of men, approached the group, and asked its members to disperse. An unidentified person told the guard Billups had a weapon. The guard asked a police officer for help and the pair found and confronted Billups, who volunteered that he had a weapon. The officer took the pistol and arrested him. Billups had a prior felony conviction at age 17, three years earlier, for possessing a weapon made out of a toothbrush while he was in a juvenile detention facility. (This was in evidence but is not the incident challenged on appeal.)

At trial, Billups acknowledged having the gun at the mall. His defense was that he found it in the mall restroom and, afraid children who were present would find it, put the gun in his pocket. He testified that he looked for a certain security guard he knew because he was afraid other guards would give him trouble. Not finding his acquaintance, he met his girlfriend, got into a verbal conflict with a group of teenagers, and left the area. Although he characterized his encounter with the officer and guard as an attempt to turn in the pistol, he did not tell them he had found it or otherwise explain his possession of it.

1. Before trial the judge heard argument on the State’s plan to present similar transaction evidence. The State offered evidence of an incident which occurred five months before the instant one where Billups took his own rifle, walked up a street, and shot at a house and four people including two children age two and twelve. Billups was a convicted felon at the time, due to the possession of a toothbrush made into a shank. The State offered the evidence to show course of conduct, intent, and motive. The court found the evidence probative of these factors and ruled it admissible. Billups timely objected to the ruling. On appeal he urges that the earlier incident was not sufficiently similar to warrant admission in this case.

Appellate courts uphold trial courts’ decisions to admit evidence unless clearly erroneous. It is error to allow similar transaction evidence solely “to show a probability that the defendant committed the crime . . . because he is a man of criminal character,” but a court may permit such evidence to show factors such as the ones designated here if they are at issue.

Billups conceded he had the pistol. The only dispute was whether he could be excused for having it by a legal justification. The event with the rifle tends to show that Billups is inclined to possess a weapon in a public place intentionally despite the law prohibiting him, in his status as a convicted felon, from having one. The two events are sufficiently similar and close in time so as to show Billups’ course of conduct, that it was not exceptional for him to carry a weapon in the first place and to flaunt the law forbidding it in the second place. As to intent, only general criminal intent was required of both crimes charged, so the prior incident was not needed to prove that point. But it did tend to show that what incited him to possess the pistol and to carry it concealed, i.e., his motive, that which prompted or influenced him to do so, was not innocent. The prior incident, when there was no excuse to have the rifle, undercut the defense that Billups would not possess a weapon and had only a valid emergency reason for having one on the instant occasion. The court did not commit reversible error in allowing the jury to consider the rifle possession for the limited purposes stated.

Proof of prior similar instances of unlawful behavior is potentially prejudicial and thus is carefully circumscribed by procedural and substantive safeguards which must be scrupulously maintained. Although the State is not permitted to introduce evidence of defendant’s general reputation for bad character “unless and until the defendant shall have first put his character in issue,” which will be done by defendant during the presentation of the defendant’s evidence unless it is done during defendant’s cross-examination of a State witness, evidence of specific prior instances of similar criminal conduct is admissible in the State’s case-in-chief to substantiate the State’s theory and supply proof of an element. But the State must be cautious in introducing such evidence in its case-in-chief lest it merely anticipate a defense which does not materialize. If that happens, the prior similar instance will have served no justifiable purpose because the State need not disprove a defense not presented, and the admission of the otherwise prejudicial evidence can constitute reversible error. There must be a need for it in the case-in-chief in order for it to serve an “appropriate purpose.”

In Hosch v. State evidence relevant to a “possible defense” was permitted in the case-in-chief but the defendant did thereafter testify and present that defense. In this case again, Billups did testify and offer what he deemed a justification for his possession of the pistol. Without that, it is questionable whether evidence of the rifle incident would have served an appropriate purpose.

Billups did not offer his excuse to the officers on the scene, so there was no testimony to that effect which had to be countered by the State during its case-in-chief. In order to prove both crimes charged, the State merely had the burden to prove that Billups intended to possess the weapon, intended to carry it concealed, and was a convicted felon. Aside from the latter element, which was proved other than by the rifle incident, the first two elements were obvious from the unquestioned fact that Billups had the gun in his pocket in the public shopping mall and indicated no surprise at its being there and no legitimate reason for its being there when it was revealed to the police. In fact, it was Billups himself who told the officers who confronted him that he knew what they wanted and, when asked what he meant, said “well, I’m carrying a weapon.” After agreeing to a search of his person, he told the officers which pocket the gun was in and which pocket the loaded magazine was in. Sure enough, there they were.

In this scenario, proof of the rifle event was not needed and thus did not serve an appropriate or proper purpose but for the defense, which came later in the presentation of the evidence. Absent that defense, the rifle event would have constituted cumulative evidence of intent, thus not being needed and for that reason not legitimized by a proper purpose. And no comfort can be taken by the State from the practice to regard erroneously admitted cumulative evidence as harmless error, because overriding that idea is the realistic recognition that “evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion and thereby putting the accused’s character in issue.” Caution to avoid reversible error would have strongly counseled withholding it until the rebuttal, and then only if the occasion warranted it.

2. After the court decided to allow the similar transaction evidence, the prosecutor and defense attorney discussed how much detail about the earlier incident would be introduced. All but the jury were fully aware Billups shot the rifle. The parties agreed that only possession and not the use of the rifle would be introduced. (Defendant, of course, preserved his objection to all of it.) No evidence of shooting was presented to the jury, but during closing argument, the prosecutor warned the jury that the defense would characterize Billups as a “sweet, wonderful man . . . helping children at church even though he’s carrying a gun and firing it.”

Billups objected, moved for a mistrial, and asked the court to tell the jury that the evidence did not show he fired the rifle. In response the court told the jury, “the closing arguments from the lawyers [are] a summation of what they think the evidence showed or the witnesses testified to. You as jurors heard the witnesses testify. You are the finders of fact. You will determine what the evidence was and what the evidence was not. You will determine what the witnesses testified to, and what they didn’t testify to. As I told you from the start, the evidence comes from the witnesses testifying on the witness stand and what exhibits I as judge allow in evidence. What [the State] says in his opening statement, what he says in his closing statement... is not evidence.” Defendant renewed his objection and motion, but the court refused further relief.

Billups argues that the instruction was inadequate to undo the harm created by the statement, that the statement exceeded what the court had agreed to allow about the incident and exceeded what was in evidence, and that a new trial was required.

Courts give attorneys wide latitude during closing arguments to draw deductions from the evidence, but discussing facts not in evidence is forbidden. Deductions argued by the prosecutor “may be illogical, unreasonable or even absurd so long as there is evidence from which such deductions can be made.” No evidence supported a deduction that Billups fired the rifle.

When improper comments are made which are not in evidence, “it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds,” or in its discretion, order a mistrial. “[A] new trial will not be granted unless it is clear that the action taken did not eliminate the statement from the jury’s consideration. [Cit.]”

The court’s instruction did not fail to eliminate confusion or misapprehension about the prosecutor’s statement, and mistrial was not required to preserve a fair trial. The court should have rebuked the prosecutor and told the jury to disregard the challenged statement. But even so, the instruction cautioned the jury to. depend exclusively on evidence, not lawyers’ statements, for facts. A mistrial was not required as a matter of law.

3. During closing argument the prosecutor described the standard the jury should apply by stating, “[JJurors will say ... we thought he was guilty, but we didn’t think you had enough evidence. That’s not what the law is. The law is if you think he’s guilty, he’s guilty.” Billups objected and asked the court to admonish the prosecutor. The court reminded the jury that “the closing argument is not evidence. It’s a summation of what the lawyers feel the case is about. You will get your law from me, and you are bound by the law I charge you on.” The defense requested no further relief.

Billups waived his right to appeal adequacy of the court’s corrective efforts by failing to object after the curative instruction. “Where the trial judge gives corrective instructions and thereafter counsel fails to request further instruction or renew his motion for mistrial, an enumeration addressed to such ground is without merit.”

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

Decided October 7, 1998

Reconsideration denied October 22, 1998

Pete, Pete & Associates, Anthony T Pete, for appellant.

Harry N Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

        See Abrams v. State, 229 Ga. App. 152, 153 (1) (493 SE2d 561) (1997).

       (Citation and punctuation omitted.) Walraven v. State, 250 Ga. 401, 407 (4) (b) (297 SE2d 278) (1982) aff’d 255 Ga. 276 (336 SE2d 798) (1985); see also Williams v. State, 261 Ga. 640, 641 (2) (a) (409 SE2d 649) (1991); Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989); Smith v. State, 232 Ga. App. 290 (501 SE2d 523) (1998).

       Justification may be a defense to the charges Billups faced. See Waugh v. State, 218 Ga. App. 301, 303 (3) (460 SE2d 871) (1995); Little v. State, 195 Ga. App. 130 (392 SE2d 896) (1990) (non-precedential, standing alone).

       See Uniform Superior Court Rule 31.3; Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991); Williams v. State, 261 Ga. 640, 641-643 (2) (409 SE2d 649) (1991); Bacon v. State, 209 Ga. 261 (71 SE2d 615) (1952).

       OCGA § 24-9-20 (b). But see Barfield v. State, 89 Ga. App. 204, 205 (79 SE2d 68) (1953), where the court connects the prohibited reputation evidence with the Bacon similar transaction evidence.

        Ledford v. State, 202 Ga. App. 694, 696 (1) (415 SE2d 693) (1992).

        Williams, supra at 642.

       246 Ga. 417, 419 (1) (271 SE2d 817) (1980).

       As to the criterion of need, see Smith v. State, supra, 232 Ga. App. 290; Phillips v. State, 215 Ga. App. 526, 527 (4) (451 SE2d 517) (1994).

        Faircloth v. State, 253 Ga. 67, 69 (3) (316 SE2d 457) (1984).

        Williams, supra at 641. See also Robinson v. State, 246 Ga. 469, 470 (2) (271 SE2d 786) (1980): “It has long been the rule in Georgia that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial.”

       See Bell v. State, 263 Ga. 776, 777 (439 SE2d 480) (1994); Conner v. State, 251 Ga. 113, 122 (6) (303 SE2d 266) (1983); Walker v. State, 232 Ga. 33, 36 (205 SE2d 260) (1974); see also Coleman v. State, 189 Ga. App. 366, 367 (4) (375 SE2d 663) (1988).

       (Citation and punctuation omitted.) Clark v. State, 146 Ga. App. 697-698 (3) (247 SE2d 221) (1978); see also Garcia v. State, 267 Ga. 257 (8) (477 SE2d 112) (1996).

       OCGA § 17-8-75.

        Brown v. State, 264 Ga. 48, 49 (2) (441 SE2d 235) (1994); Pemberton v. State, 220 Ga. App. 253, 255 (469 SE2d 233) (1996) (“ ‘unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.’ ”).

       OCGA § 17-8-75; Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869) (1976).

       Compare Sterling v. State, 267 Ga. 209, 210 (2) (477 SE2d 807) (1996) (given trial court’s ruling that argument was improper and instructing jury to disregard statement, denial of mistrial not reversible error).

       Compare Mazo v. State, 224 Ga. App. 744, 745-746 (1) (481 SE2d 831) (1997) (new trial required because of harmful effect of the prejudicial matter).

       (Citation and punctuation omitted.) Chambers v. State, 216 Ga. App. 361, 363 (2) (454 SE2d 567) (1995); Coates v. State, 222 Ga. App. 888, 889 (1) (476 SE2d 650) (1996); Tharpe v. State, 207 Ga. App. 900, 901 (5) (429 SE2d 342) (1993).


author: McMurray, Presiding Judge.

text:
    A98A1322.
    CONYERS v. THE STATE.
    (507 SE2d 842)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of one count each of armed robbery, possession of tools for the commission of a crime, and aggravated assault. Viewed in the light most favorable to the jury’s verdict, the evidence adduced below revealed the following: Sixty-five-year-old Eddie Ralph Parker (“the victim”) drives a truck for Georgia Crown Distribution, delivering wine, beer, and liquor to stores, bars, and restaurants all over Georgia. Each driver is responsible for collecting payment at the time of delivery, either by check or in cash. On February 8, 1995, the victim was responsible for “a little better than 400 cases, which is a heavy load.” He was authorized to hire a helper from a labor pool. The victim identified defendant as the helper who waved the victim down and said “I’m supposed to go with you today.” The pair proceeded along the victim’s route. In Gainesville, they delivered approximately 250 cases of alcohol to Queen City Package, collecting “$5,000 in cash money” in return, “all $100 bills.” Defendant was “[standing right there near [the victim].”

The last delivery was at 1:00, after which the victim returned to Atlanta. But the victim first “got off on 85 and got on 285, went down to Memorial drive and went by [his] house.” Defendant remained in the truck, while the victim (with the $5,000 cash in his pocket) took about 15 minutes to take a blood pressure pill. Back on the road, they were traveling “down 1-20. Just before [they] got to Hightower, [defendant] reached and got me in the side of the collar, just like this (indicating), and pulled [the victim] over towards him. And [defendant] told [the victim] to give him that G— d— money. And [the victim said] ‘Mister, it’s not worth it.’ [The victim] tried to talk to defendant^ who told the victim] to ‘shut up, it aint your G— d— money no way.’ So [the victim] hushed. [Defendant] said he would mess [the victim] up, and he had a knife in his hand.” The victim demonstrated with a knife how defendant “just reached over and caught me in the side of the neck and pulled [the victim] to [defendant, who] said, ‘I’ll mess you up,’ give that so-and-so money. [Defendant] was screaming, give me that so-and-so money.” To effectuate the taking, defendant “made [the victim] keep both hands on the steering wheel[, while defendant] went across [the victim’s] back, in [his] back pocket, and got [the] billfold and just emptied it.” The truck exited the interstate onto Hightower, “turned right on Simpson, went down one block, turned right again and went up on the hill by the school, [where defendant] jumped out the truck.”

Sheryll Elizabeth Aulgur is area director for Interim Personnel, a temporary placement service. She identified defendant as one of the temporary workers “dispatched that day to Georgia Crown as a driver[’s] helper.” But defendant was never paid by Interim Personnel for February 8, 1995 because he “never turned in a time sheet for working at Georgia Crown.” The Georgia Crown practice for temporary helpers sent by Interim Personnel is that “[t]hey are to return to the warehouse, and the warehouse supervisor signs their time sheet. . . .” Jerry Schuler, the project manager for distribution and warehousing, testified that when the victim reported having been robbed at knifepoint, “he was certainly scared and shaken, didn’t know what to do.”

Defendant testified he argued with the victim because defendant felt he was performing the lion’s share of the heavy lifting. At the end of the day, defendant “asked Mr. Parker, ‘Will you sign my ticket?’ And he said, Tou are going back.’ And [defendant] said no, and . . . got out of the truck.” Defendant claimed he never even saw the $5,000 in cash. Nevertheless, the jury found him guilty as charged. Defendant’s motion for new trial was denied and this appeal followed. Held:

1. Defendant moved in limine to exclude reference to the circumstances of his arrest, more than a year after the armed robbery. Specifically, he wanted “no mention as to the defendant’s whereabouts during the interim, [because he had been incarcerated in DeKalb County,] ... no mention of the place or description at which he was arrested, and ... no mention of the arrest date.” Also, defendant sought to exclude reference to the fact that he did not return to work at the temporary agency. The trial court granted the motion in part, excluding any reference to the fact that defendant was in the DeKalb County jail between the time of the armed robbery and the time of arrest, and further excluded any description of the situs of defendant’s arrest as a “ ‘known drug area’ or anything like that.” The trial court denied the motion as to the date of defendant’s arrest and the location of the arrest. The trial court also denied the motion regarding “defendant’s failure to return to work.”

At trial, the State called the patrolman who arrested defendant pursuant to an outstanding warrant for this armed robbery. Over objection, Officer M. A. Hall of the Atlanta Police Department testified that, on September 5,1996, he “observed three gentlemen standing on the side of [a] house below the window[, which] appeared to be a drug transaction going down. . . . [Officer Hall] detained the subjects,” one of whom he identified as defendant. A computer check indicated that defendant “was wanted for [this] armed robbery.”

Defendant specifically “objected] to Officer Hall testifying at all in this matter because the arrest of [defendant] is not an issue. [The State had already] established the date of the offense, the date of the arrest, the fact that he was subsequently located and arrested. And it really is not an issue about which the truth needs to be found; . . . citing to the Momon decision. [Momon v. State, 249 Ga. 865 (294 SE2d 482).]” The State replied that the officer’s testimony was necessary because “we don’t want this to appear like an arbitrary stop and mislead the jury into believing that this was just an arbitrary and capricious stop without any type of articulable suspicion when, in fact, there was.” Defendant then offered to stipulate to the reasonableness of the stop as well as the fact of the arrest but argued the prejudicial impact of the suspected drug transaction outweighed any probative value.

The trial court ruled that Officer Hall “can testify as to the facts of the arrest,” reasoning the evidence was “relevant and [only] incidentally may place the character of the defendant in[to] the case. . . .” In his sole enumeration of error, defendant contends this evidentiary ruling improperly injected his character. We disagree.

The admission of evidence is committed to the sound legal discretion of the presiding judge, whose determinations will not be disturbed on appeal unless they constitute an abuse of that discretion. McBee v. State, 228 Ga. App. 16 (491 SE2d 97). “It is well settled that all of the circumstances connected with an accused’s arrest are admissible as evidence at trial, even those which establish the commission of another criminal offense and bring into question his character. Bixby v. State, 234 Ga. 812 (218 SE2d 609); Blackshear v. State, 199 Ga. App. 839 (2) (406 SE2d 269); Steele v. State, 196 Ga. App. 330 (396 SE2d 4). The circumstances of the arrest are admissible for whatever value the jury wants to place on them (Bogan v. State, 206 Ga. App. 696 (426 SE2d 392), and although evidence may incidentally put character in issue or be prejudicial, it may be admitted if otherwise relevant. Id.” Shakim v. State, 211 Ga. App. 199, 201 (2) (438 SE2d 673).

In the case sub judice, the trial court took pains to ensure that the jury was not informed of defendant’s incarceration in DeKalb County for a different offense during the period between the armed robbery at issue and defendant’s subsequent arrest. Even though defendant offered to stipulate to the existence of an articulable suspicion for the initial stop, the State was entitled to rebut any inference that the initial stop was unauthorized, harassing, or arbitrary. “ ‘ “The flight of the accused, the time when and the place where arrested, the manner of the arrest, how he was armed and whether he resisted, and all the circumstances connected with the arrest, we consider proper evidence to be submitted to the jury to be weighed by them for what they are worth.” Wayne v. State, 56 Ga. 113 (5), 119.’ ” State v. Luke, 232 Ga. 815, 816 (209 SE2d 165). In the case sub judice, the trial court’s determination that the circumstances of defendant’s arrest were more probative than prejudicial does not constitute an abuse of discretion, and is affirmed. See, e.g., Sisson v. State, 232 Ga. App. 61, 64 (3), 66 (3) (b) (499 SE2d 422). Compare Williams v. State, 268 Ga. 452, 453 (2), 454 (490 SE2d 381) and Robinson v. State, 263 Ga. 424 (1), 425 (2) (b) (435 SE2d 207).

Decided October 7, 1998

Reconsideration denied October 22, 1998

James W. Gibert, for appellant.

Paul L. Howard, Jr., District Attorney, David E. Langford, Assistant District Attorney, for appellee.

2. Additional arguments, objecting to proof that defendant did not return to work after this incident, have been considered and are found to be without merit.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Johnson, Presiding Judge.

text:
    A98A1871.
    WRIGHT et al. v. POWER INDUSTRY CONSULTANTS, INC.
    (508 SE2d 191)
   Johnson, Presiding Judge.

Mark A. Wright, Jason A. Dunham, Gregg R. Anderson and Sonic Systems, Inc. appeal an interlocutory injunction issued against them after the trial court determined that four restrictive covenants contained in employment contracts signed by Wright and Dunham were enforceable. For reasons which follow, we affirm in part and reverse in part.

Wright and Dunham are former employees of Power Industry Consultants, Inc. (hereinafter “PIC”), a corporation which supplies personnel to industries on a temporary basis. Both men signed employment agreements with PIC containing the four restrictive covenants disputed in this case. Wright and Dunham left PIC in August 1997 and began employment at Sonic Systems, Inc. (hereinafter “SSI”), a Texas corporation which also supplies personnel to industries on a temporary basis. Anderson is also an employee of SSI.

The trial court issued an order enforcing the restrictive covenants contained in the employment contracts and barring Wright and Dunham from “further violating” them. The order also enjoined Anderson and SSI from “interfering with PIC’s contracts with Wright and Dunham and with Wright and Dunham’s fiduciary obligations owed to [PIC].”

1. ‘Whether the restraint[s] imposed by the employment contract [are] reasonable is a question of law for determination by the court.” W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992). The granting of injunctive relief lies “in the sound discretion of the [trial] judge.” OCGA § 9-5-8. Consequently, the exercise of discretion by a lower court will not be interfered with absent a manifest abuse of that discretion. Slautterback v. Intech Mgmt. Svcs., 247 Ga. 762, 766 (279 SE2d 701) (1981). Accord West 80 Investors v. Chequers Investment Assoc., 214 Ga. App. 673, 675 (448 SE2d 735) (1994).

Wright, Dunham, Anderson, and SSI enumerate as error the trial court’s determination that each of the four covenants is enforceable. The covenants are not dependent upon one another, and one may stand even though the others fall. See Lane Co. v. Taylor, 174 Ga. App. 356, 358-359 (2) (330 SE2d 112) (1985). We therefore analyze each covenant in turn.

2. The first of the four covenants is a covenant not to compete. “Covenants not to compete in employment contracts are enforceable if they are reasonable in terms of duration, territorial coverage, and the scope of activity precluded, considering the legitimate business interests the employer seeks to protect and the effect on the employee.” Chaichimansour v. Pets Are People Too &c., 226 Ga. App. 69, 70 (1) (485 SE2d 248) (1997). The covenant at issue provides that for one year after employment terminates Wright and Dunham will not act for any business other than PIC as a “shareholder, partner, director, officer, principal, employee, independent contractor, consultant or advisor, or as a sales representative in the business of (1) soliciting customers and potential customers for the placement of personnel at power generation projects, (2) soliciting personnel for the placement of same at power generation projects, (3) such other duties as may be necessary to perform to the power generation industry (. . . hereinafter referred to as ‘Consulting Services’)” within fifty miles of PIC’s offices.

Although the specific scope of Wright’s and Dunham’s duties for PIC is in dispute, PIC does not allege that Wright and Dunham acted as shareholders, partners, or principals. Because the covenant contains a prohibition on activities beyond those Wright and Dunham performed for PIC, the covenant is overbroad and unenforceable. Harville v. Gunter, 230 Ga. App. 198, 200 (2) (495 SE2d 862) (1998). In Harville, we held a covenant not to compete prohibiting a speech pathologist from acting as an “officer, director, [or] shareholder” for a future employer invalid because it imposed a broader restriction than necessary on the employee and was, therefore, overbroad in scope. We make no findings about the reasonableness of the duration or territorial limitation contained in this covenant.

The covenant not to compete at issue here is distinguishable from other covenants not to compete which we have previously held enforceable because they are narrowly tailored in the scope of activities prohibited. For example, in Sysco Food Svcs. &c. v. Chupp, 225 Ga. App. 584 (484 SE2d 323) (1997), we held a covenant not to compete was proper in its scope when the employee was prohibited from providing services which are the same or substantially similar to the employee’s duties for the employer. Under that restriction, the employee is prohibited only from acting in a capacity that is the same as the one he held for the employer. Narrow tailorings such as the one in Chupp, unlike the one in the present case, protect the employer to a sufficient degree while not imposing unreasonable restrictions on the employee.

3. The second covenant is a covenant not to solicit customers. It provides that for one year Wright and Dunham cannot “for the purpose of attempting to provide Consulting Services . . . call upon, contact or solicit . . . any person or entity (Restricted Customers), which during the twelve (12) month period immediately prior to the Termination Date, was both (i) a customer of [PIC], and (ii) was a person or an entity to which [Wright or Dunham] marketed, promoted, distributed or sold Consulting Services on [PIC’s] behalf.” The territory for the covenant is defined as “any place of business of a Restricted Customer at which or to which place of business [Wright or Dunham] marketed, promoted, distributed or sold Consulting Services on [PIC’s] behalf during the year prior to the Termination Date.”

The covenant not to solicit customers is written in the conjunctive. Its scope is narrowly tailored to reach only a person or entity who was both a customer of PIC and a person or entity to which Wright or Dunham marketed, promoted, distributed or sold consulting services on PIC’s behalf during the year prior to the termination date. Our Supreme Court upheld the enforceability of an even broader non-solicitation clause in W. R. Grace & Co. v. Mouyal, supra at 468 (2). In Mouyal, the restrictive covenant deemed enforceable by the Supreme Court provided: the “former employee is prohibited from post-employment solicitation of employer customers which the employee contacted during his tenure with the employer.”

It is true that “ ‘a prohibition against doing business with any of an employer’s customers, whether or not a relationship existed between the customer and the former employee, is overbroad.’ [Cit.]” (Emphasis in original.) American Software USA v. Moore, 264 Ga. 480, 483 (1) (448 SE2d 206) (1994). However, notwithstanding the claim to the contrary, this is not an “any customer” case because this covenant applied only to those customers to which Wright and Dun-ham actually marketed, promoted, distributed or sold the company’s consulting services. See Chaichimansour, supra. Compare Moore, supra at 483 (1).

In seeking injunctive relief, PIC offered evidence that Wright had solicited three PIC customers: Bremco, Inc., Brown & Root, Inc., and John Brown Engineering Company. The record shows that PIC operated a specialized business which provided skilled craftsmen to certain industrial customers which have boilers, turbines, heat exchangers and other heavy machinery and equipment. PIC places these skilled craftsmen on a temporary contract basis with its customers. Less than a week after Wright resigned, he became president of SSI Technical Services, Inc., a subsidiary of Sonic Systems, Inc. Sonic Systems, Inc. owns both SSI Technical Services, Inc. and Craft Support Services, Inc. According to Wright, SSI Technical Services specializes in providing professional technical contract personnel to industries, a business not unlike the one he quit. Dunham also became employed with SSI Technical Services after he left PIC.

Wright and Dunham contend the non-solicitation covenant is overbroad and unenforceable because they were mere “telemarketers” who contacted all of PIC’s customers, but lacked any substantive contact with these customers. Notwithstanding Wright’s testimony to the contrary, the record shows that when he resigned from PIC in August 1997, his duties included more than mere telemarketing. By Wright’s own admission, while still employed by PIC Crafts, Inc., he marketed PIC’s services to Bremco and also “sold” (placed) craft personnel with Bremco. It is undisputed that after Wright left PIC, he had direct contact with Bremco and according to his affidavit, he “facilitated Bremco’s. conduct of business with Craft Support Services, Inc., a separate corporation by which I am not employed.” But as noted above, although Wright is not an employee of Craft Support Services, he is the president of another entity owned by the same parent corporation.

The vice president of PIC Process Services Corporation, Jerry Jennings, testified that in July 1997, Wright and he visited Brown & Root, a customer of PIC in Houston. Again, this contact refutes Wright’s assertion that he was merely a telemarketer. Jennings testified that after Wright left PIC the next month, the Brown & Root file was missing. Jennings testified that he had personal knowledge that Wright had solicited business from Brown & Root within two weeks of his resignation. According to Jennings, Wright also contacted John Brown Engineering Company, another customer that Wright had not only solicited but also managed programs for while he was the Director of PIC Crafts, Inc.

The record also shows that Dunham, who resigned from PIC on the same day as Wright, was also more than a mere telemarketer. While employed with PIC, Dunham was manager for client services for PIC Crafts, Inc.

Given the complexity of the respective corporate structures and the disputed evidence as to Wright’s and Dunham’s job responsibilities, both before and after they left PIC, the facts are confusing at best and conflicting at worst. “Where, as here, there exist conflicts regarding material issues of fact, [the Supreme Court] will not interfere to control the discretion vested in the trial court in granting an interlocutory injunction. [Cits.]” Norfolk Southern R. Co. v. Dempsey, 267 Ga. 241, 242-243 (1) (476 SE2d 577) (1996). This Court may not substitute itself for the trial court as factfinder by reweighing the substantiality of Wright’s and Durham’s contacts with customers. Id. The trial court did not abuse its discretion in granting temporary injunctive relief to PIC based on the non-solicitation covenant.

4. The third covenant is a nondisclosure provision which requires Wright and Dunham to keep confidential “[a]ll documents, building plans and blueprints, records, techniques, business secrets and other information . . . which have or will come into [the employee’s] possession during [employment with PIC which] shall be deemed to be confidential and proprietary to [PIC].” Business secrets are defined as “including, but not limited to, such matters as costs, profits, blueprints, markets, sales, products, product lines, key personnel, pricing policies, operational methods, procedures, customers, customer lists, customer needs, suppliers, plans for future developments, and other business affairs and methods and other information not readily available to the public.” It is undisputed that this nondisclosure covenant does not include a time limitation.

A nondisclosure clause with no time limit is unenforceable as to information that is not a trade secret. See U3S Corp. of America v. Parker, 202 Ga. App. 374, 378 (2) (b) (414 SE2d 513) (1991); Allen v. Hub Cap Heaven, 225 Ga. App. 533, 539 (6) (484 SE2d 259) (1997). However, in the Georgia Trade Secrets Act of 1990 (OCGA § 10-1-760 et seq.), the legislature carved out protection for written agreements which failed to set a time limit for maintaining the trade secret. OCGA § 10-1-767 (b) expressly provides “[t]his article shall not affect: (1) Contractual duties or remedies . . . ; provided, however, that a contractual duty to maintain a trade secret or limit use of a trade secret shall not be deemed void or unenforceable solely for lack of a durational or geographical limitation on the duty.” Thus, the statute protects contracts, like the one here, which lack an express time limit.

In defining trade secrets, the legislature included “information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public.” OCGA § 10-1-761 (4). This information must (1) derive economic value, either actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use and (2) be the subject of efforts that are reasonable under the circumstances to maintain its secrecy. OCGA § 10-1-761 (4) (A), (B).

Where a business makes a reasonable effort to maintain the secrecy of its customer lists and other trade secrets, then a trial court does not abuse its discretion in granting an interlocutory injunction under the Trade Secrets Act. DeGiorgio v. Megabyte Intl., 266 Ga. 539, 540 (2) (468 SE2d 367) (1996). Thus, if PIC’s customer list, its list of craftsmen, and its internal company files are not generally known and PIC reasonably attempted to maintain their confidentiality, then they are protected as trade secrets, and the restrictive covenant is enforceable despite its failure to specify a time limit. OCGA § 10-1-767 (b) (1).

Here, PIC’s verified complaint asserted, “Defendants have taken lists and other confidential information from the office of PIC.” This allegation is supported by testimony from two officials. PIC’s vice president testified that “[a]fter Wright resigned from PIC, I searched for a Brown & Root, Inc. file that Wright and I created. . . . The Brown & Root file contained sensitive and confidential information regarding PIC, including its price structure. That file always was kept in Wright’s office. That file is now missing.”

PIC’s director of staffing testified that he kept the sole original list of PIC’s craftsmen. To perform his job duties, Wright was provided a copy of that list. The director testified, without contradiction, that when PIC searched for the list after Wright’s departure, this search for Wright’s copy of the list proved unsuccessful.

In light of the evidence that PIC attempted to maintain the confidentiality of this information, the trial court did not abuse its discretion in protecting PIC by issuing a temporary restraining order as to the confidentiality of this information. Avnet, Inc. v. Wyle Laboratories, 263 Ga. 615, 616 (1) (437 SE2d 302) (1993) (Georgia Trade Secrets Act authorizes injunctive relief to protect trade secrets, including actual customer lists).

5. The fourth covenant prohibits Wright and Dunham from “contacting] or encouraging] another to contact any person who is, at that time, and was, during the term of this Agreement, an employee, agent or contractor of [PIC] in a managerial, sales, representative or skilled capacity for the purpose or with the intent of enticing him or her away from the employ of [PIC] for any reason” for a period of one year. Because we find this covenant reasonable in scope and duration, we uphold the trial court’s finding that it is enforceable.

The covenant PIC seeks to enforce is of a duration allowed by Georgia law. In Lane Co., supra, this Court enforced a covenant prohibiting employees from hiring or attempting to hire for another employer any employee of their former employer or directly or indirectly causing any such employee to leave his employment in order to work for another for a period of one year. See id. at 360. More recently, we upheld a similar covenant restricting employee solicitation for two years after termination. Sunstates Refrigerated Svcs. v. Griffin, 215 Ga. App. 61, 64 (2) (449 SE2d 858) (1994). The covenant at issue also resembles those in Sunstates, supra, and Lane Co., supra, in the scope of restricted activity. We agree with the trial court that this covenant can be enforced against Wright and Dunham.

6. Wright, Dunham, Anderson, and SSI also enumerate as error the trial court’s injunction of SSI and Anderson. Even though PIC never argued that Wright and Dunham owed it a fiduciary duty, and the trial court never asked the parties to brief the issue, the trial court ruled sua sponte in its one-page order that SSI and Anderson were enjoined from “interfering with PIC’s contracts with Wright and Dunham and with Wright and Dunham’s fiduciary obligations” owed to PIC.

The burden of proving a fiduciary relationship is on the party seeking to establish the existence of the relationship. Allen, supra at 537. Here PIC has made no effort to establish the existence of a fiduciary relationship other than by allegations contained in the complaint, which were denied by all other parties in their answers and affidavits. Additionally harmful to any assertion by PIC of breach of fiduciary duty is the established rule that making plans to enter a competing business while still in the employ of another business does not constitute a breach of fiduciary duty. Nilan’s Alley v. Ginsburg, 208 Ga. App. 145 (1) (430 SE2d 368) (1993). In the absence of affirmative proof of a fiduciary relationship by PIC, it was error for the trial court to rule that Wright and Dunham owed a fiduciary obligation to PIC.

Decided October 22, 1998.

Gerry, Friend & Sapronov, William D. Friend, Mari Myer, for appellants.

Ford & Harrison, F. Carter Tate, David C. Hagaman, for appellee.

Judgment affirmed in part and reversed in part.

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

       On cross-examination, Wright admitted that he used the services of Rick Walton, a former client of PIC, to obtain all the craftsmen for his present company. Walton, a skilled craftsman who formerly was assigned by PIC Crafts, Inc. to various customers of PIC, confirmed that he was employed by Craft Support Services.


author: Ruffin, Judge.

text:
    A98A1092.
    TRAVEL PROFESSIONALS INTERNATIONAL, INC. v. ACCESS TRAVEL INCORPORATED.
    (508 SE2d 197)
   Ruffin, Judge.

Access Travel Incorporated sued Travel Professionals International, Inc. (TPI) for failure to pay commissions due under a franchise agreement. TPI counterclaimed for breach of contract. The trial court partially granted Access Travel’s motion for summary judgment, offsetting certain unpaid franchise fees. TPI appeals, contending the trial court erred in finding that a valid contract existed between the parties. Because this contention is without merit, we affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

On June 30, 1994, TPI and Access Travel entered into a franchise agreement, pursuant to which Access Travel was authorized to operate a travel agency as a TPI franchisee within a designated geographical area. In connection with the execution of the agreement, Access Travel paid TPI a $2,900 franchise fee. The franchise agreement provided that the maintenance of an office outside the designated area would constitute a default under the agreement and result in the immediate termination thereof. At the time the agreement was entered into, however, Access Travel was already operating a travel agency on Northside Drive, outside its designated territory. This office had been approved by the Airlines Reporting Corporation (ARC), which is necessary for an office to be able to print airline tickets. On October 12, 1994, TPI agreed in writing that Access Travel could maintain the Northside Drive office as a branch office under certain conditions, including (1) that Access Travel have a home office within the defined territory, and (2) that the Northside Drive office obtain ARC approval as an on-site branch office.

In July 1994, Access Travel opened an office in Sandy Springs, within the territory defined in the agreement. In November, it moved this office to a location on Hildebrand Drive, also within the defined territory, in order to satisfy TPI’s request that it move to a more visible location. Access Travel never obtained ARC approval of the Sandy Springs or Hildebrand Drive locations. Although the North-side Drive office had been approved by the ARC as a home office, Access Travel did not apply for ARC approval of such office as an on-site branch office, which use was subject to different rules.

As a franchisee, Access Travel participated in TPI’s preferred supplier program, pursuant to which it could earn “override commissions” on travel services sold for certain airlines. Override commissions are additional commissions paid by the airlines to TPI, and TPI agreed to distribute the appropriate amount of such additional commissions to Access Travel. Access Travel earned $13,450 in override commissions for the third and fourth quarters of 1994. However, TPI failed to pay such commissions, claiming that it had a right to offset amounts owed to it by Access Travel under the franchise agreement.

By letter dated March 22, 1995, TPI terminated the franchise agreement because of Access Travel’s alleged failure to comply with the parties’ agreement regarding the location of its offices, and also because of its failure to pay $2,330.88 in franchise fees. The termination letter stated that TPI would pay all earned override commissions after Access Travel paid the outstanding franchise fees. A week later, Access Travel requested that TPI deduct the outstanding franchise fees from the override commissions due and forward the balance to Access Travel. However, TPI never paid the override commissions to Access Travel.

On March 22, 1996, Access Travel sued TPI for breach of contract and quantum meruit. TPI filed a counterclaim for breach of contract, seeking to recover the unpaid franchise fees as well as unspecified damages for Access Travel’s failure to establish its offices as required by the agreement. On June 18,1997, the trial court granted partial summary judgment in favor of Access Travel on its breach of contract claim in the amount of $8,950.15, representing the $13,450 in unpaid commissions less $4,499.85 in franchise fees owed by Access Travel. Other than offsetting the unpaid franchise fees, the order did not address TPI’s counterclaim for damages for breach of contract.

In two enumerations, TPI contends that, because Access Travel continued to maintain its Northside Drive office and failed to establish an ARC-approved office within its designated territory, the trial court erred in finding that a valid contract existed between the parties. These contentions are patently without merit.

As an initial matter, TPI alleged in its counterclaim that “[a] contract existed between the parties” and that “[Access Travel] breached the aforementioned franchise contract” in various ways. These unqualified allegations constitute admissions in judicio regarding the existence of a contract, and TPI cannot now assert that no contract existed. See Ditch v. Royal Indem. Co., 205 Ga. App. 478-479 (422 SE2d 868) (1992).

Even apart from these admissions, the record clearly reflects that the franchise agreement constituted a binding contract. Nothing in the franchise agreement suggests that, by continuing to maintain the Northside Drive office outside its designated territory, Access Travel failed to satisfy a condition precedent to the formation of the contract. Indeed, the agreement refers to the maintenance of an office outside the territory as an “event of default” resulting in “termination” of the contract. This language necessarily presupposes the existence of a valid contract. Moreover, TPI subsequently agreed that Access Travel could maintain the Northside Drive office on certain conditions. Although Access Travel may not have complied with these conditions, this at most constitutes a breach of the agreement allowing TPI to recover damages, and not the failure of a condition precedent. See King Indus. Realty v. Rich, 224 Ga. App. 629, 631 (3) (481 SE2d 861) (1997) (“Georgia law favors conditions subsequent rather than precedent and favors remediation by damages rather than forfeiture.”).

Similarly, nothing in the franchise agreement indicates that obtaining ARC approval for the Sandy Springs or Hildebrand Drive offices within the designated territory was a condition precedent to the formation of a valid contract. The contract itself states that TPI is obligated to “assist and advise [Access Travel] in applying for and obtaining appointments as a member of . . . ARC,” indicating that the parties intended the contract to be binding prior to Access Travel’s obtaining any necessary ARC approvals.

Moreover, TPI’s present assertion — that Access Travel’s failure to comply with the franchise agreement regarding the location of its offices shows that no valid contract existed between the parties — is completely inconsistent with its past conduct. TPI’s March 22, 1995 letter terminating the franchise agreement presupposed the existence of a valid contract, treating Access Travel’s actions as defaults under that contract. This letter acknowledged TPI’s obligation to pay earned override commissions, less the unpaid franchise fees. The letter also stated that Access Travel was required to comply with certain provisions of the franchise agreement that survived termination, indicating that TPI considered the franchise agreement to be a binding contract.

Decided October 23, 1998.

Schulten, Ward & Turner, W. Scott Schulten, Erin S. Stone, for appellant.

Paul, Hastings, Janofsky & Walker, John G. Parker, Karen J. Wickliffe, for appellee.

Whether or not a valid contract existed between the parties is the only issue raised in TPI’s enumerations, and TPI does not contend that Access Travel’s breach of the agreement constituted a forfeiture of its right to recover earned commissions under the contract. Nevertheless, we note that “even a party who has himself breached a contract ... is entitled to recover damages as against the other party who has failed in his contractual obligations.” Pooler v. Taylor, 173 Ga. App. 859, 862 (2) (b) (328 SE2d 749) (1985). Because the record conclusively establishes that Access Travel earned the override commissions at issue, and that TPI failed to pay such commissions, the judgment of the trial court must be affirmed. Although TPI has asserted a counterclaim for damages due to Access Travel’s alleged breach of the franchise agreement with respect to the location of its offices, the trial court did not rule on such claim in its order. Accordingly, we do not address that issue here.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

       Access Travel does not appeal the trial court's offsetting of the unpaid franchise fees.