text:
    A96A2051.
    A96A2052.
    ALLEN et al. v. HUB CAP HEAVEN, INC. HUBCAP MASTERS INTERNATIONAL, INC. v. HUB CAP HEAVEN, INC.
    (484 SE2d 259)
   Johnson, Judge.

Hub Cap Heaven, Inc. sued Clayton Allen, Barbara Hooper, Xanthus Holdings, Inc., and Hubcap Masters International, Inc., alleging fraud, theft of trade secrets, and breach of nondisclosure and non-competition clauses in a franchise agreement. Hub Cap Heaven sought damages and an interlocutory injunction to prohibit the defendants from franchising, operating, or advising others about the operation of stores selling hubcaps, wheels, and related automotive accessories. The superior court granted the injunction with no geographic limits, but ruled that Allen and Hooper may work in one such store more than 50 miles outside the Atlanta city limits. Case No. A96A2051 is an appeal from the injunction by Allen, Hooper, and Xanthus. Case No. A96A2052 is Hubcap Masters’ appeal from both the injunction and a later order denying its request for written findings of fact and conclusions of law. We reverse the grant of the injunction in both appeals, and in Case No. A96A2052 we affirm the order entered thereafter.

We may not reverse the grant or denial of preliminary injunctive relief absent an abuse of discretion, “or, as alternatively stated, unless there was no evidence on which to base the ruling.” (Citations and punctuation omitted.) Glen Oak v. Henderson, 258 Ga. 455, 456 (1) (369 SE2d 736) (1988). See OCGA § 9-5-8. When the evidence is not in material conflict, however, the applicable rules of law cannot be avoided on the basis of discretion. American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 348 (1) (392 SE2d 860) (1990). Our review of the evidence, conducted with these principles in mind, shows:

Hub Cap Heaven franchises businesses that sell wheels, hubcaps, and other automotive accessories. Hooper bought a franchise to open a store in Atlanta, and transferred it to Xanthus Holdings, Inc., of which she is the sole stockholder. The franchise agreement provided in relevant part that: (1) The term of the agreement was five years from the opening of Hooper’s store, which was July 1, 1993; (2) Hooper would not compete with Hub Cap Heaven anywhere during the term of the agreement, or within 50 miles of “the location franchised” for one year after the agreement was terminated; (3) The noncompetition covenant would survive transfer of the franchise; (4) Hooper would not disclose Hub Cap Heaven’s business methods to third parties, during the term of the agreement or afterwards; (5) Hooper had to obtain the permission of Hub Cap Heaven to sell her franchise. Hub Cap Heaven could withhold permission if, among other things, Hooper was in default of the franchise agreement. Default was defined to include failing to comply with any contract requirements and engaging in a competing business.

Allen participated with Hooper in the franchise negotiations. For purposes of this appeal, Allen admits he signed a franchise agreement-identical to Hooper’s. Hooper later married Allen and put him on her franchise’s payroll.

Hooper and Allen received training from Hub Cap Heaven. Allen then helped others set up similar businesses in other cities. These businesses operated under the name Hubcap Masters, though there was no formal Hubcap Masters umbrella organization. In 1994, Xanthus rented a warehouse under the name Atlanta Wheel and Cover Supply and began to sell inventory to the Hubcap Masters stores.

Xanthus sold its Hub Cap Heaven franchise June 26, 1995, with Hub Cap Heaven’s permission. Hub Cap Heaven now claims this permission was based on promises by Hooper and Allen that they were not involved with Hubcap Masters; that they would not compete with Hub Cap Heaven; that they would sign a noncompetition agreement; and that they would buy a Hub Cap Heaven franchise in Naples, Florida.

After the sale, Allen’s uncle and his uncle’s accountant formed Hubcap Masters International, Inc. Hubcap Masters’ president and vice president are owners of Hubcap Masters stores. Hubcap Masters hired Allen to sell franchises, but he is not a stockholder or corporate officer. Hub Cap Heaven contends, however, that Hubcap Masters is essentially Allen’s alter ego. In support of this contention, Hub Cap Heaven points to the deposition testimony of James Scarborough, the person named as Hubcap Masters’ president in its corporate documents, showing he has little or nothing to do with corporate operations.

The superior court’s injunction order recites the evidence the judge considered, and states that the injunction should be granted because Hub Cap Heaven has a substantial likelihood of success on the merits and no adequate remedy at law, and because granting it would further public policy against fraud. On appeal, Hub Cap Heaven urges four separate legal grounds for the injunction: Violation of the Georgia Trade Secrets Act, OCGA § 10-1-760 et seq.; breach of a confidential relationship; breach of the nondisclosure and noncompetition covenants contained in the franchise agreement; and fraud. The appellants correctly contend none of these grounds supports the grant of the interlocutory injunction.

1. In Case No. A96A2052, Hubcap Masters has presented no argument and cited no authority in support of its allegation that the trial court erred in refusing to enter findings of fact and more specific conclusions of law. Hubcap Masters has therefore abandoned this enumeration. See Court of Appeals Rule 27 (c) (2). The remaining divisions address issues common to both appeals.

2. The Georgia Constitution accords the Supreme Court of Georgia exclusive appellate jurisdiction in equity cases. Ga. Const, of 1983, Art. VI, Sec. VI, Par. Ill (2). Though this case involves an injunction, resolution of the appeal turns on legal issues. We therefore have jurisdiction over the case. See Firearms Training Systems v. Sharp, 213 Ga. App. 566 (445 SE2d 538) (1994).

3. Appellants claim the trial court could not validly base the injunction on the Georgia Trade Secrets Act. They claim all the supposedly secret business methods of Hub Cap Heaven are actually common practices, and are therefore not protected by the Act. Hub Cap Heaven responds by pointing to three categories of information it claims are trade secrets.

(a) Hub Cap Heaven claims that the unique way in which it combines otherwise mundane services gives it an advantage over its competition. Specifically, Hub Cap Heaven claims to be the first business to sell automotive trim pieces to body shops and car dealers by taking trucks full of unordered parts on regular sales routes, hoping to convince each dealer or body shop on the route to buy parts off the trucks.

Floyd Davidson, president of Hub Cap Heaven, admitted other businesses in the United States used similar methods, though they were not franchised. Moreover, by its very nature this “secret” information is conveyed to every customer on a sales route. Hub Cap Heaven has not made this information “the subject of efforts that are reasonable under the circumstances to maintain its secrecy,” OCGA § 10-1-761 (4) (B). Accordingly, it may not be protected as a trade secret. See Equifax v. Examination Mgmt. Svcs., 216 Ga. App. 35, 39-40 (2) (453 SE2d 488) (1995).

(b) Hub Cap Heaven also claims it gave Allen information that would allow him to contact suppliers not generally known to competitors. OCGA § 10-1-761 (4) provides that a “list of actual or potential customers or suppliers which is not commonly known by or available to the public” can be a trade secret in some circumstances. Under this statute, however, “only tangible lists of customers and suppliers are the property of the employer and warrant protection as trade secrets. . . . [Utilization of personal knowledge may be forbidden through the use of restrictive covenants, but not under the Trade Secrets Act.” (Citations omitted.) DeGiorgio v. Megabyte Inti., 266 Ga. 539, 540 (3) (468 SE2d 367) (1996). Because Hub Cap Heaven does not claim Allen misappropriated a tangible supplier list, and his personal knowledge of Hub Cap Heaven’s suppliers is not a trade secret, this argument has no merit.

(c) Hub Cap Heaven claims it told Allen which cities it considered good candidates for new franchises. While the parties have cited no cases deciding whether such information can be a trade secret, and our research has revealed none, we hold that oral information of this nature should be accorded even less protection under the Trade Secrets Act than customer lists. This is because a customer list reveals the identities of known buyers of the parent company’s goods or services, while the name of a city reveals only the general location of unknown potential buyers. Because the specific identities of known customers are not trade secrets, DeGiorgio, supra, it follows that the general locations of unknown potential customers likewise cannot be considered trade secrets.

None of the information Hub Cap Heaven claims it needs to protect qualifies as a trade secret. Therefore, the Trade Secrets Act does not support the grant of the interlocutory injunction.

4. Appellants correctly maintain the injunction cannot be upheld as a remedy for breach of a confidential relationship, because no such relationship existed between them and Hub Cap Heaven.

A relationship is confidential when “one party is so situated as to exercise a controlling influence over the will, conduct, or interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” OCGA § 23-2-58. “[T]he mere fact that one reposes trust and confidence in another does not create a confidential relationship. . . . [A] confidential and fiduciary relationship . . . must be shown by proof, and the burden is upon the party asserting the existence of such relationship to affirmatively show the same.” (Citations and punctuation omitted.) Harish v. Raj, 222 Ga. App. 248, 250 (1) (474 SE2d 624) (1996).

The franchise contract expressly provided for an independent contractor relationship between Hub Cap Heaven and its franchisees. Hub Cap Heaven has cited no case finding a confidential relationship in such circumstances. Moreover, even if Hub Cap Heaven could show the parties “owed each other a fiduciary duty in other respects, there is no basis in this case for an inference that a fiduciary or confidential relationship existed between them with respect to the transaction at issue.” (Emphasis in original.) Kienel v. Lanier, 190 Ga. App. 201, 204 (2) (378 SE2d 359) (1989). The transaction in this case, like the one in Kienel, was not one in which the parties “joined together as partners, promoters, joint venturers, or otherwise, to achieve a common business objective. Rather, the parties were engaged in a transaction with each other in an effort to further their own separate business objectives. Under such circumstances, [one party] was not under any duty to represent or advance the [other’s] interests. [Cit.]” (Emphasis in original.) Id. Hub Cap Heaven therefore cannot show a confidential relationship with respect to this transaction.

5. Appellants claim the trial court could not validly base the injunction in this case on the noncompetition clause of the franchise agreement. For the reasons set out below, we agree.

Under Ga. Const, of 1983, Art. Ill, Sec. VI, Par. V (c), a contract “which may have the effect of or which is intended to have the effect of defeating or lessening competition, or encouraging a monopoly” is “unlawful and void.” Nevertheless, not all noncompetition covenants are held to run afoul of this constitutional provision. A noncompetition covenant entered into in connection with a franchise or employment contract is enforceable, but only where it is strictly limited in time and territorial effect and is otherwise reasonable considering the business interest of the employer sought to be protected and the effect on the franchisee. See Owens v. RMA Sales, 183 Ga. App. 340, 341 (1) (358 SE2d 897) (1987). This test of duration, territorial coverage, and scope of activity is not an arbitrary rule, but a helpful tool in examining the reasonableness of the particular factual setting to which it is applied. See Watson v. Waffle House, 253 Ga. 671, 673 (2) (324 SE2d 175) (1985). Unlike a noncompetition agreement entered into in connection with the sale of a business, one entered into in connection with a franchise contract cannot be “blue-penciled” by the courts to enforce valid terms if some terms of the covenant are invalid. Id. at 671-672.

(a) Under the noncompetition covenant, neither Hooper nor Allen was to “either directly or indirectly, for himself, or on behalf of any other person, persons, partnership or corporation, own, maintain, engage in, or participate in the operation of any HUB CAP HEAVEN, INC. type business.” Ordinarily, proscription of such a broad scope of competing activity renders a noncompetition clause void. See Fields v. Rainbow Intl. &c., 259 Ga. 375, 376 (380 SE2d 693) (1989). However, where the former franchise owner was the “heart and soul” of the franchised business, and gained knowledge which the parent company has a reasonable stake in protecting, a covenant proscribing such a wide scope of activity may be reasonable if it prohibits competition only in a small geographic area, and for a short period of time. See Waffle House, supra at 673.

Davidson stated he taught Hooper and Allen things about his business which would have taken them five to six years to learn on their own. While such information may not rise to the level of trade secrets, it is comparable to the information gained by the former franchise owners in Waffle House, in which a limited noncompetition covenant was held to be reasonable. We therefore proceed to consider the territorial and time limitations of the noncompetition covenant before us.

(b) The noncompetition covenant in the instant case purports to be effective for one year after the franchise is terminated. The franchise termination date was originally to be July 1, 1998, but Hooper sold the franchise with Hub Cap Heaven’s permission on June 26, 1995. Allen, Hooper, Xanthus, and Hubcap Masters argue that the noncompetition covenant therefore expired of its own terms on June 26, 1996. Hub Cap Heaven contends the covenant is in effect until July 1, 1999, one year from the termination date originally agreed on, which in this case is approximately four years after the parties terminated their relationship.

We need not decide which is the correct construction because the injunction must be vacated under either interpretation. If the covenant is construed as Hub Cap Heaven urges, then it is unenforceable because it is overbroad. If the covenant is construed as the appellants urge, then even if the trial court in February 1996 could have entered an injunction valid until June 26, 1996, it was error to enter an injunction effective past that date, which is when the covenant expired by its own terms.

Noncompetition covenants of shorter duration than four years, even covering a smaller area than the unlimited geographic restriction imposed in this case, have repeatedly been held void as over-broad. For instance, in T.E. McCutcheon Enterprises v. Snelling & Snelling, Inc., 232 Ga. 609, 610a (2) (212 SE2d 319) (1974) the Supreme Court of Georgia refused to enforce a noncompetition covenant purporting to be effective for two years within ten miles of the franchise area’s perimeter, and one year within five miles of any other franchise. In Richard P. Rita Personnel Sues. Intl. v. Kot, 229 Ga. 314, 315, 317 (191 SE2d 79) (1972) a covenant prohibiting competition for two years in Fulton, Cobb, and DeKalb counties, “or in any territorial area in which a franchise has been granted” was held void. In WAKE Broadcasters v. Crawford, 215 Ga. 862 (114 SE2d 26) (1960), the Supreme Court invalidated a noncompetition covenant that claimed to be effective for 18 months within 50 miles of Atlanta or anywhere else the company operates. And in Purcell v. Joyner, 231 Ga. 85, 86-88 (2) (200 SE2d 363) (1973) a covenant not to compete for three years in sixteen Georgia counties and one South Carolina county was invalidated. We therefore hold the noncompetition clause before us, construed as Hub Cap Heaven urges, overbroad and void. Under either possible interpretation, this covenant will not support the continuation of the injunction after June 26, 1996.

6. Appellants contend the nondisclosure covenant is void because it has no time limit. We agree with this contention as well. A nondisclosure clause with no time limit is unenforceable as to information that is not a trade secret. See U3S Corp. &c. v. Parker, 202 Ga. App. 374, 378 (2) (b) (414 SE2d 513) (1991). Because the covenant does not arise out of the sale of a business, we may not “blue-pencil” a term which is overbroad to impose a reasonable limit. Compare Drumheller v. Drumheller Bag & Supply, 204 Ga. App. 623, 626-627 (1) (420 SE2d 331) (1992).

7. Appellants argue the trial court could not have correctly based the injunction in this case on any alleged fraud. This argument is also correct. To establish a claim of fraud, one must demonstrate the existence of five elements: (1) A false representation, (2) made with knowledge of its falsity, (3) to induce one to act or refrain from acting, (4) justifiable reliance on the representation, and (5) damages. See Watson v. Zurich-American Ins. Co., 221 Ga. App. 4, 5 (1) (470 SE2d 684) (1996).

Hub Cap Heaven’s fraud claim fails because it has not shown damages resulting from a false representation made by the appellants. Hub Cap Heaven has only 19 stores in 13 states, and has pointed to no evidence in the record that the appellants planned to establish Hubcap Masters stores in any area where Hub Cap Heaven has an existing store or expansion plans. In fact, Davidson testified he has no interest in placing Hub Cap Heaven franchises in several cities he discussed with Allen.

Davidson’s claim that Hub Cap Heaven stores in Jacksonville, Florida and Atlanta have lost business to Hubcap Masters stores in no way establishes damages which would be remedied by this particular injunction. The operators of those stores have already been trained by Allen. Hub Cap Heaven has pointed to no evidence that any of the defendants have or plan to have any further involvement in operating those stores, and the injunction does not require those or any other existing Hubcap Masters stores to cease doing business.

This is not to say that Hub Cap Heaven cannot establish damages, only that it has not done so, even to the preliminary level needed to justify a temporary injunction. See generally Miami Valley &c. v. Southern Orchard Supply Co., 214 Ga. App. 624, 626 (448 SE2d 482) (1994). Therefore, the injunction in this case cannot be justified on the ground of fraud.

8. Though whether to grant an interlocutory injunction is within the discretion of the superior court judge, “[ujnder the discretion vested in him, no judge has authority to disregard or even to impair any acknowledged or established right of a party by its exercise, and if he does so, he abuses that discretion. The power ought to be exercised in favor of the party having the legal right. . . .” (Citation and punctuation omitted.) Johnson v. Durrence, 136 Ga. App. 439, 441 (221 SE2d 652) (1975). Because Hub Cap Heaven has not shown that the appellants violated any of Hub Cap Heaven’s legal rights, it was error for the trial court to grant the injunction.

Moreover, though it is not necessary for us to reach this issue in order to decide this case, we note that it is error to grant an injunction when the party seeking it has an adequate remedy at law. Housing Auth. v. MMT Enterprises, 267 Ga. 129 (1) (475 SE2d 642) (1996); see OCGA § 23-1-4. Even if the appellants were to compete with Hub Cap Heaven in violation of an enforceable agreement, Hub Cap Heaven failed to show that the adverse economic effects of that competition could not be quantified with enough specificity to support an award of money damages.

Decided March 5,1997

Reconsideration denied March 18,1997

Hassett, Cohen, Beitchman & Goldstein, Lee S. Goldstein, for Allen et al.

Wilson, Brock & Irby, Richard W. Wilson, Jr., James S. Teague, Jr., for Hubcap Masters International, Inc.

Drew, Eckl & Farnham, Peter B. Barlow, J. William Haley, Alston & Bird, G. Conley Ingram, Jay D. Bennett, Timothy G. Werner, for Hub Cap Heaven, Inc.

We have examined every possible basis for the injunction and found none valid. It is therefore vacated.

Judgment affirmed in part and reversed in part in Case No. A96A2052. Judgment reversed in Case No. A96A2051.

McMurray, P. J., and Ruffin, J., concur.

       OCGA § 13-8-2.1, providing otherwise in certain situations, has been held unconstitutional by the Supreme Court of Georgia. Jackson & Coker, Inc. v. Hart, 261 Ga. 371 (405 SE2d 253) (1991).


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A96A2343.
    THE STATE v. DAVID et al.
    (484 SE2d 278)
   Johnson, Judge.

Pursuant to OCGA § 5-7-1 (4), the state appeals the trial court’s grant of motions to suppress evidence filed by Daniel William David, James Dee Mullins, Barney R. Phillips, and Kerri Nichole Vaschon. These defendants were charged with trafficking in cocaine, possession of cocaine with intent to distribute, possession of marijuana, and possession of LSD after police found the drugs in an apartment the defendants occupied.

The evidence at the hearing on the motions to suppress showed that Statesboro police officer J. C. Smith answered a call requesting assistance from Dr. James Hood, who managed an apartment complex. Hood believed unauthorized persons were occupying one of the apartments and asked Officer Smith to accompany him to that apartment. Smith testified that they went to the apartment and Hood knocked on the door. At that point, Smith stated, “Dr. Hood knocked on the door. A white female opened the door. When she opened the door I could see what I know as a marijuana pipe sitting on the table. She then stepped back, picked up the marijuana pipe and went to conceal it. At that point Dr. Hood started into the apartment and the door opened further and I could see what appeared to be a bag of marijuana sitting on the table. At that point I told everybody [in the apartment] to sit down and I called for [another officer] to come over and assist.” Officer Smith further testified that he received no verbal permission to enter the apartment, although someone said, “Come in” when Hood knocked.

Hood’s testimony contradicted Smith’s. According to Hood, he knocked, and a young man came to the door. Hood explained his concerns about unauthorized visitors in the apartment, and the young man said, “Come right in.”

On appeal, the state contends the trial court improperly relied on Carranza v. State, 266 Ga. 263 (467 SE2d 315) (1996), in which the Supreme Court clarified that, absent consent or exigent circumstances, police need to obtain a warrant before searching a private residence even where an offense occurs in an officer’s presence. Id. at 268. We agree that Carranza is distinguishable on its facts, as the case involved electronic surveillance and the use of an informant unknown to the residents of the house. Any alleged misapplication of Carranza, however, does not affect the outcome in this case.

The state correctly asserts that a criminal defendant has no privacy right in contraband or instrumentalities of a crime which are in “open view” and exposed to the public or which a police officer views from a place he is legally entitled to be. See State v. Echols, 204 Ga. App. 630 (420 SE2d 64) (1992); State v. Zackery, 193 Ga. App. 319 (387 SE2d 606) (1989). In this case, Officer Smith had the right to stand in the public area outside the apartment door and was legally entitled to see the marijuana and marijuana pipe when the door was opened. See Jenkins v. State, 223 Ga. App. 486, 487 (1) (477 SE2d 910) (1996) (police may enter on private property to knock at a door). However, “while the characterization of an observation as a non-search plain view situation settles the lawfulness of the observation itself, it does not determine whether a seizure of the observed object would likewise be lawful.” 1 LaFave, Search & Seizure 399, § 2.2 (a) (3rd ed. 1996). “[N]ot only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.” Horton v. California, 496 U. S. 128 (110 SC 2301, 110 LE2d 112) (1990); see id. at 137, n. 7. See Coolidge v. New Hampshire, 403 U. S. 443, 468 (91 SC 2022, 29 LE2d 564) (1971) (“[E]ven where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure” absent exigent circumstances); accord Carranza, supra at 267 (1). See also Merriman v. State, 201 Ga. App. 817, 821 (1) (412 SE2d 598) (1991), cited with approval in Carranza, supra (where officers saw marijuana growing in open view on defendant’s property, proper procedure would be to obtain search and arrest warrants before seizing contraband).

Decided March 6,1997

Reconsideration denied March 18,1997

R. J. Martin III, District Attorney, Michael T. Muldrew, Assistant District Attorney, for appellant.

As Carranza makes clear, a warrant is required to enter a private residence and seize evidence or make an arrest unless the entry is with consent or exigent circumstances excuse the officer from taking the time to obtain a warrant. Id. at 268. Thus, the issues before the trial court were whether Smith had consent to enter or whether exigent circumstances excused him from taking the time to obtain a warrant. See id.

Each of these issues is one of fact. State v. Williams, 212 Ga. App. 164, 165 (1) (441 SE2d 501) (1994); State v. Pidcock, 160 Ga. App. 643 (287 SE2d 647) (1981) (exigent circumstances). It is the trial court’s duty to determine issues of fact and credibility on a motion to suppress, and we will not disturb those findings unless they are clearly erroneous. Allenbrand v. State, 217 Ga. App. 609 (1) (458 SE2d 382) (1995). Smith and Hood, the state’s only two witnesses on these key issues, contradicted each other concerning who opened the apartment door, the actions taken by the person who opened the door, and whether consent to enter was given. Furthermore, the trial court’s determination that Hood had no authority to enter the apartment or consent to a search of the apartment is not clearly erroneous. Under these circumstances, the trial court did not err by determining that the state did not carry its burden of showing that the warrantless entry was consensual or justified by exigent circumstances. See Hall v. State, 216 Ga. App. 807, 808 (1) (456 SE2d 56) (1995); see generally Roberts v. State, 175 Ga. App. 326, 329 (1) (333 SE2d 189) (1985) (opening a door in response to a knock does not establish genuine consent to enter an apartment).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

Turner & Pool, John R. Turner, Jack B. Williamson, Jr., F. Gates Peed, Gary L. Mikell, for appellees.

       We note the trial court appears to have mistakenly analyzed whether the officer had the consent of the apartment’s lessee, who was not present at the time of the incident. The correct analysis is whether the defendants themselves, or one of them having joint control of the apartment, consented to the officer’s entry. See Smith v. State, 264 Ga. 87, 88 (2) (441 SE2d 241) (1994).


author: Eldridge, Judge.

text:
    A97A0115.
    SHIVER v. NORFOLK-SOUTHERN RAILWAY COMPANY.
    (484 SE2d 503)
   Eldridge, Judge.

Appellant, Donny Shiver, was working as a brakeman on Job # 65, doing local freight switching on August 7, 1990. Appellant was injured while attempting to assist in the coupling of freight cars.

On October 2, 1990, B. E. Hooker, Claims Agent for Georgia Southern & Florida Railway Company, interviewed appellant at his home and tape recorded the interview with appellant’s permission; the recording was played back to appellant, and appellant stated that the statement was accurate and he did not desire to make any changes. Appellant stated that at Weyerhauser Lee, when he went to couple the engine with its knuckle open to the car, the knuckle and drawhead were mismatched; appellant then attempted to open the knuckle on the boxcar by pulling on the cut lever; he held the pin up at the same time that he attempted to open the knuckle and was pushing the drawhead when he felt pain in his back. He made no mention of a failure of the automatic coupler to work or any previous attempt to couple the engine to this boxcar prior to his injury. In fact, he indicated that the coupling had occurred properly. Appellant stated that there was no defect in the drawhead but that it was stiff and dry from lack of lubrication.

On June 13,1996, appellant by affidavit stated that on August 7, 1990, he hurt himself attempting to align the drawbar after a failed coupling attempt between the boxcar and the switch engine. Appellant stated that prior to the failed attempt to couple, the drawbar had been properly aligned, and the knuckles were in proper arrangement for a successful coupling and that the automatic coupler failed to work properly to couple. Appellant stated that his injury occurred while he was attempting to realign the drawbars and to reposition the knuckles in order to make them work. During appellant’s deposition taken on December 30, 1991, he testified the same way as in his affidavit.

The affidavits of Clarence Penn Eanes, foreman, and Stephen F. Califf, a car inspector, stated that they made a full inspection on August 7, 1990 of the boxcar in question immediately after appellant reported his injury and found that the couplers, drawheads and attachments were in good condition and had no defects.

The complaint for injuries under the Federal Employers’ Liability Act (FELA) was filed on May 13, 1991. The complaint was twice amended. Motion for summary judgment was filed on May 20, 1996. The motion for summary judgment was granted on July 25, 1996. Notice of appeal was filed on August 19, 1996.

1. Appellant’s second enumeration of error is that the trial court erred in granting summary judgment on appellant’s Safety Appliance Act claim. This enumeration of error will be addressed first because it more sharply raises the fundamental problem with appellant’s case, which is that at an interview closer in time to the incident, appellant voluntarily made an extensive statement regarding how he was injured which totally contradicts his later sworn testimony after suit, without any explanation of such conflict being made by him.

Under the Federal Safety Appliance Act, 45 USC § 53, and more particularly the Automatic Coupler Act, 45 USC § 2, the failure of properly aligned and positioned drawheads and knuckles to automatically couple on the first attempt makes the employer strictly liable for any resulting injury; however, if the railroadman fails to properly align the couplers prior to the initial coupling attempt, and the automatic coupling fails, then such failure does not constitute a defect within the ambit of the act. Norfolk & Western R. Co. v. Hiles, 516 U. S. _ (116 SC 890, 134 LE2d 34) (1996); see also Affolder v. New York &c. R. Co., 339 U. S. 96 (70 SC 509, 94 LE 683) (1949).

Under the existing federal law, if there was a misalignment of the drawheads and closed knuckles prior to the first attempt to couple and there was no attempt to correct the condition, then there exists no defect under the act when the automatic coupling fails. Appellant’s statement of October 2, 1990, setting forth the facts of the August 7, 1990 injury does not state that there was a failed coupling attempt prior to appellant’s going between the cars to reposition the knuckle and drawhead, but states that the injury occurred as appellant was initially positioning the knuckle and drawhead for the coupling, which automatically coupled. Such facts do not give rise to a defect within the Safety Appliance Act and, in fact, show the injury preceded the coupling. The complaint, as well as appellant’s affidavit and deposition, state unequivocally that there were two coupling attempts; that the first attempt failed, despite the proper alignment of the drawheads and knuckles; and that appellant, only then, went between the cars to manually realign the failed automatic coupling and was injured. Appellant offers no explanation for the totally different statements: the first provides a complete defense to the employer, and the second provides no defense but, instead, strict liability under the Safety Appliance Act.

“The rule in Georgia is that testimony of a party who offers himself as a witness in his own behalf at trial ‘ “is to be construed most strongly against him when it is self-contradictory, vague or equivocal.” ’ Douglas v. Sumner, 213 Ga. 82, 85 (97 SE2d 122) (1957); W & A Railroad Co. v. Evans, 96 Ga. 481 (23 SE 494) (1895). Where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict. Douglas v. Sumner, supra. . . . Early on the courts determined that if on motion for summary judgment a party offered self-contradictory testimony on the dispositive issue in the case, and the more favorable portion of his testimony was the only evidence of his right to a verdict in his favor, the trial court must construe the contradictory testimony against him. This being so, the opposing party would be entitled to summary judgment. The courts reasoned that this is the correct result because if the case went to trial under the same evidence, the party offering the self-contradictory testimony would have a verdict directed against him. Dykes v. Hammock, 116 Ga. App. 389 (157 SE2d 524) (1967). Once the trial court has eliminated the favorable portions of the contradictory testimony, it must take all testimony on motion for summary judgment ‘as it then stands, and construe it in favor of the party opposing the motion in determining whether summary judgment should be granted.’ Chandler v. Gately, 119 Ga. App. 513, 514 (167 SE2d 697) (1969). The courts concluded that this rule must necessarily be applied to summary judgment proceedings, otherwise, ‘any opposing party may, by the simple device of filing conflicting affidavits, get the motion denied. The temptations to perjury are greater in this situation than in a jury trial. . . . The conflict can easily be avoided. A party knows what he has sworn. If he has discovered error, it can be explainéd in his affidavit.’ Chandler [u. Gately, supra] at 523. . . . Burnette Ford v. Hayes, [227 Ga. 551 (181 SE2d 866) (1971)], states the general rule that on motion for summary judgment all evidence is to be construed against the movant. . . . We conclude therefore that both Chambers v. C & S [Nat. Bank], 242 Ga. 498 (249 SE2d 214) (1978), which applied the contradictory testimony rule to a motion for summary judgment, and Combs v. Adair Mortgage Co., 245 Ga. 296 (264 SE2d 226) (1980), which distinguished Chambers from Burnette Ford, were correctly decided. Accord King v. Brasington, [252 Ga. 109 (312 SE2d 111) (1984)].” (Footnote omitted; emphasis in original.) Prophecy Corp v. Charles Rossignol, Inc., 256 Ga. 27, 28-30 (1) (343 SE2d 680) (1986).

The trial court in the case sub judice determined that the testimony was contradictory as to the facts that would entitle appellant to recover within the meaning of Prophecy Corp. v. Charles Rossignol, Inc., supra at 30 (2).

“The standard to be applied is: (1) determine whether the testimony of the party is contradictory, (2) if a reasonable explanation is offered for the contradiction, that testimony will not be construed against the party, (3) the burden is on the party giving the testimony to offer a reasonable explanation, and (4) whether this has been done is an issue of law for the trial judge.” Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231) (1987). It must be inferred that the trial court went through such analysis prior to granting summary judgment where no such explanation appears in the record, and the conflict goes to the essential facts required to support appellant’s cause of action. Thus, the trial judge did not err.

Decided March 4,1997

Reconsideration denied March 18,1997

Burge & Wettermark, F. Tucker Burge, Tom W. Thomas, for appellant.

J. Converse Bright, for appellee.

Combs v. Adair Mtg. Co., supra at 297, in explaining Chambers v. C & S Nat. Bank, supra, held that “[t]he holding in Chambers does not lighten the burden upon the movant for summary judgment nor does it add any additional weight to the burden upon the responding party. Chambers simply reiterates the long recognized and established rule that any party testifying in his own behalf is held to a strict standard of candor and responsibility for his own statements and has no right to be intentionally or deliberately self-contradictory. The effect of the Chambers holding is that if a party testifying in his own behalf intentionally or deliberately contradicts himself, the more favorable portion of the contradictory testimony shall be treated as though it did not exist.”

The Supreme Court, in Hudgens v. Broomberg, 262 Ga. 271 (416 SE2d 287) (1992), held that the contradictory testimony rule applies to any prior testimony and not merely to testimony given at the trial of the case. See Pope v. Hendley, 206 Ga. App. 773, 774 (426 SE2d 607) (1992).

2. The first enumeration of error is that the trial court erred in granting summary judgment on appellant’s FELA claim.

The existence of the alleged hazardous work practices and poor equipment maintenance relies exclusively on appellant’s testimony, which is also in conflict as to such facts. This issue is controlled by Division 1 of this opinion. We find that the trial judge did not err in granting summary judgment.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.


text:
    A97A0372.
    BILL LEDFORD MOTORS, INC. v. DEPARTMENT OF TRANSPORTATION.
    (484 SE2d 510)
   Eldridge, Judge.

This case comes to us by way of an interlocutory appeal. The sole issue, as stipulated by the parties to this inverse condemnation case, involves an inquiry as to whether the trial court correctly determined that “it is not permissible for an expert to base an opinion of the leasehold value of unique property on the profits and/or business value of the property!.]”

Appellant Bill Ledford (“Ledford”) operated three separate motor vehicle dealerships on leased property located between State Route 18 and Juliette Road near 1-75 in Monroe County. In August 1987, the State Department of Transportation (“DOT”) began work on widening 1-75 in that area. In September 1987, a condemnation petition was filed against appellant on behalf of DOT in the Superior Court of Monroe County under civil action no. 87-V-370.

The taking of appellant’s leaseholds was temporary, not permanent; upon completion of the construction project, a new off-ramp of 1-75 provided direct access to one of appellant’s dealerships, thereby increasing the value of that leasehold as a consequential benefit thereto.

In November 1989, appellant Ledford filed a complaint for damages alleging that appellant’s leaseholds and the merchandise (automobiles) thereon were damaged by the dust and dirt caused by the DOT construction, thereby “diminishing the value of [appellant’s] leasehold and by destroying [appellant’s] business.” Ledford retained an expert who calculated the value of the leaseholds by the loss of profits and diminution of business value Ledford had allegedly sustained for the time it took to complete the construction: approximately three million dollars.

DOT filed a motion in limine regarding this expert testimony, alleging that such evidence was inadmissible for the purpose of proving the leaseholds’ value. The trial court granted the motion in limine, ruling that such evidence was inadmissible in determining the value of the leaseholds and finding, in addition, that “[p]laintiff is limited in its evidence [of loss of profits and business value] to seeking consequential damages to the value of each of its three leases of real property.” This appeal followed.

For purposes of this appeal, the parties have stipulated, among other things, that the leaseholds were “unique” under Georgia law, which thereby precluded appellant from applying, as Ledford puts it, a “typical approach” to reducing damages, i.e., moving inventory “to one of the substantially similar locations available on the market and resume business unaffected by DOT’s work.”

Appellant contends that the trial court erred in granting the motion in limine because the law authorizes a party to prove the value of “unique” leasehold interests by alternative means of valuation, such as through lost business profits and value. Appellant seeks to measure the lost value of the leaseholds by the lost profits of the business. Appellant contends that, in instances such as the case sub judice, wherein a plaintiff does not seek business losses as a separate item of recovery, such losses should be admissible to establish the value of the leaseholds; otherwise, a plaintiff would suffer damage to its business and inventory without compensation of any sort. Thus, through a valuation of his leasehold interests, appellant seeks recovery for: (a) damage to his property rights; (b) damage to his business; and (c) physical damage to his inventory, i.e., automobiles. Held:

(a) Evidence of Value of Property Rights. The constitution of this state provides that private property is not to be taken for public purposes without just and adequate compensation being paid. Ga. Const, of 1983, Art. I, Sec. Ill, Par. I; see Harrison v. State Hwy. Dept., 183 Ga. 290, 293 (188 SE 445) (1936). The issue is always, “What has been lost?” See State Hwy. Dept. v. Thomas, 115 Ga. App. 372, 376 (154 SE2d 812) (1967). The answer to that question encompasses the issue before this Court.

A leasehold interest is “property” for which the leaseholder is entitled to receive compensation when his interest is taken or damaged for a public purpose. Hayes v. City of Atlanta, l'Ga. App. 25 (57 SE 1087) (1907). The traditional measure of compensation is the market value of the leasehold for the remainder of the unexpired lease on the date of taking. Id.; MARTA v. Funk, 263 Ga. 385, 387 (435 SE2d 196) (1993). With regard to a temporary condemnation of leased real estate, the lessee loses only the use of the property for a specified time at a set amount of rent. Funk, supra at 387. Thus, the valuation of a leasehold cannot be decided by anything other than the fair market rental value of the property, and the evaluation includes proof of any consequential damages that may affect the market value of the leasehold, as that is all that the lessee has lost with regard to the real estate.

Recovery on the basis of damage to the actual business, itself, as opposed to the real estate, must be pled as a separate item of recovery. The rationale for this is based upon common sense and has been articulated for many years: “The destruction of an established business is and must be a separate item of recovery. The holdings of some cases that the loss of prospective profits is to be considered in determining the value of the real estate is one thing. This means no more than that the potential uses of the property [consequential damages] may be proved for that purpose. The loss of an established business is an altogether different matter; such loss not merely reflects the value of the real estate, for frequently the value of the business greatly exceeds that of the premises where it is conducted. . . . For instance, in a shabby and cheap building a very valuable business may be established. If the business has a value of $100,000 and the [property] $5,000, by what process of reasoning can the value of the business be included in the appraisal of the [property]?” Bowers v. Fulton County, 221 Ga. 731, 739 (146 SE2d 884) (1966); see also Pursley, Ga. Eminent Domain, p. 132, § 5-11 (“loss of business” is different from consideration of business use of property that affects the value of the property itself, because the loss of business may exceed the value of the property where the business is conducted). This rationale controls in the case sub judice and supports the notion that measuring the value of an interest in real estate by the value of the business located thereon is the “Property Law” equivalent of judging a book by its cover.

The parties’ stipulation as to the “unique” nature of the leaseholds does not alter this result or aid appellant in his attempts to incorporate business loss into the value of his leasehold interests. This is because, with regard to a valuation of realty, if a leasehold is “unique,” then such “uniqueness” would be properly measured in its fair market value. With regard to the valuation of a loss of business operated on a leasehold, evidence that a leasehold is “unique” goes to support a plea for special damages in a condemnation action seeking the recovery of such business losses when there is a permanent taking. Accordingly, business losses are pled as a separate element, apart from the valuation of the leasehold upon which the business is operated. “[B]usiness losses can be recovered as a separate element in instances when the business belongs to a separate lessee or when the business belongs to the landowner and there is a total taking of the business. In either event, business losses are recoverable as a separate item only if the property is ‘unique’ and the loss is not remote or speculative. [Cit.]” (Emphasis supplied.) Dept. ofTransp. v. Aeree Oil Co., 266 Ga. 336, 337 (467 SE2d 319) (1996).

Thus, the “unique” aspect of a leasehold may affect the valuation of a leasehold interest as it reflects an unusual value in the fair market; however, such does not permit, as argued by appellant, the inclusion of business loss into the leasehold value simply because the leasehold is “unique.”

(b) Evidence of Value of Business Loss. Evidence of “business losses” has been held admissible in only two instances: (1) where such evidence is relevant to the recovery of a separate element of just and adequate compensation; or (2) where such evidence is relevant to the valuation of the amount of consequential damages to a remainder. Aeree Oil Co., supra at 336-337; Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825 (387 SE2d 877) (1990). Where a part of the property is condemned and the business continues to operate on the remaining property, the business may suffer damages during the construction of the public project; if the business losses are caused primarily by severe inconveniences from the construction of the project and the business will return to normal after completion of construction, evidence of business losses is not admissible. Dept. of Transp. v. Dent, 142 Ga. App. 94 (235 SE2d 610) (1977); Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314 (265 SE2d 10) (1980); see also Pursley, Ga. Eminent Domain, supra at § 5-15, p. 149. When the business belongs to a separate lessee, the lessee may recover for business loss as an element of compensation separate from the value of the land whether the destruction of the business is total or partial. Richmond County v. 0.153 Acres of Land, 208 Ga. App. 208, 210-211 (430 SE2d 47) (1993). Such evidence of business loss cannot be remote or speculative. Id. More importantly, the damage caused by the taking must be permanent rather than temporary; clearly, a temporary loss may be caused by factors other than a temporary taking, so that there would be no direct causal connection. Pursley, Ga. Eminent Domain, supra at § 6-9, p. 226.

In the case sub judice, it is undisputed that Ledford did not seek business losses as a separate element of damages and proffered no evidence of business loss to support a separate, compensable element of damages. See Buck’s Sue. Station, supra at 827. Thus, evidence of business loss in the instant case is admissible not for the purpose of recovering for the loss of business, but for the limited purpose of demonstrating a diminution in the fair market value of the leasehold, i.e., consequential damages, if such loss of profits does, in fact, demonstrate a diminution in fair market value. Aeree Oil Co., supra at 336-337; Buck’s Sue. Station, supra at 827. Significantly, perhaps, in the case sub judice, if consequential damages are considered, the consequential benefit of the new off-ramp must also be a factor in offsetting such damages. Merritt v. Dept. of Transp., 147 Ga. App. 316 (248 SE2d 689) (1978), rev’d on other grounds, 243 Ga. 52 (252 SE2d 508) (1979); Dept. of Transp. v. Knight, 143 Ga. App. 748 (240 SE2d 90) (1977); Ball v. State Hwy. Dept., 108 Ga. App. 457 (133 SE2d 638) (1963).

(c) Evidence of Value of Inventory (Automobiles). Where dust and dirt cause physical damage to property, compensation must be paid, regardless of whether a part of the property has been condemned. Physical damage is an interference with the special rights incident to the ownership of property under the “damage” clause of the constitution. Generally, damages from dust and dirt temporarily caused by a public project, such as in the instant case, cannot be recovered in a condemnation action; such damages fall within the rule prohibiting the recovery of damages for temporary inconvenience. See Pursley, Ga. Eminent Domain, supra at § 5-10, pp. 128-129. However, if the property suffers compensable damage from such causes, the owner must assert his claim in a separate suit and show that his property was physically affected or damaged rather than merely showing inconvenience or personal discomfort. MARTA v. Datry, 235 Ga. 568 (220 SE2d 905) (1975). Again, appellant did not allege such damages as a separate item for recovery, and clearly, appellant cannot recover for any physical damage to his business inventory in the instant action which seeks damages for the value of his leasehold interest in real estate.

In sum, appellant’s contention that he cannot recover for damage to his business or merchandise, other than through the inclusion of such items in the valuation of his leaseholds, is incorrect. Pretermitting the current timeliness or ultimate provability thereof, other avenues of relief for the loss of such property rights are available. What is not available is the ability to recover such alleged losses through the valuation of Ledford’s leasehold interests, themselves; appellant has sought inclusion of separate damages to prove the damage to his leaseholds, which cannot be done.

Accordingly, we hold that the trial court’s ruling is correct: appellant may not introduce expert testimony as to the loss of business profits and worth for the purpose of proving the value of the leaseholds; the introduction of such evidence is limited to proof, if any, of specific and non-speculative consequential damages.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Decided March 5,1997

Reconsideration denied March 18,1997

Reynolds & McArthur, Charles M. Cork III, for appellant.

Michael J. Bowers, Attorney General, Harris & James, John B. Harris III, William C. Harris, Lisa D. Neill-Beckmann, for appellee.

       Clearly, the inclusion of the profits of a business while run by another owner, as well as the “extrapolation” of potential profits based upon a three to six month business history, falls within the parameters of speculative damages when calculating business loss for the purposes of expert testimony thereon.

       That “permanent damage” is an appropriate threshold requirement to impose before allowing evidence of business loss is amply illustrated by the ongoing dispute between appellant and appellee regarding the length of time the construction lasted: 16 months as alleged by the DOT and 21 months as alleged by Ledford. When the damage about which a plaintiff complains is permanent, the length of time that the taking lasted becomes moot. Otherwise, the dilemma in the causal nexus becomes apparent, i.e., the temporary nature of the damage corresponding with the undetermined duration of the taking.

       Proof of consequential damages to a leasehold interest reflects only the diminution in the market value at the time of the taking compared to its new circumstances just after the time of the taking. Dept. ofTransp. v. Old Nat. Inn, 179 Ga. App. 158 (345 SE2d 853) (1986). Thus, appellant could not recover for business loss in the guise of “consequential damages” as the market value of the leasehold is always the threshold consideration; “ ‘[t]he resulting decrease in the market value of the remaining land is the consequential damage.’ ” (Emphasis in original.) Richmond County, supra at 210.


text:
    A97A0395.
    SMITH v. THE STATE.
    (484 SE2d 515)
   Eldridge, Judge.

After deliberating 48 minutes, a Chatham County jury found appellant Raymond E. Smith guilty of two counts of burglary, three counts of aggravated assault, kidnapping, rape, and three counts of possession of a firearm during the commission of a crime. The rape count and one of the burglary counts, with attempted rape as the underlying felony, were separate incidents involving different victims which were joined in the same indictment. Appellant filed a motion to sever offenses. The trial court found that the offenses were properly joined because they were not simply of the same or similar “character”; the trial court, based upon argument from the state, found that the offenses exhibited the same or similar “conduct” to the extent that the offenses demonstrated a similar course of conduct and bent of mind. The court denied the motion to sever offenses. Appellant challenges the trial court’s severance determination and asserts that the evidence was insufficient to support the verdict. We affirm.

1. Offenses may be joined for trial when they are based on the same or similar “conduct” so as to evince a common scheme, plan, or modus operandi. Dingier v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975); Samples v. State, 217 Ga. App. 509 (460 SE2d 795) (1995); Davis v. State, 180 Ga. App. 190 (1) (348 SE2d 730) (1986). Severance is mandatory, upon defense request, if offenses are joined improperly, i.e., solely because they are of the same or similar “character.” Dingier, supra; Swinney v. State, 217 Ga. App. 657, 659 (458 SE2d 686) (1995); Jordan v. State, 172 Ga. App. 496 (1) (323 SE2d 657) (1984). If a trial court determines that joinder was proper, severance is not mandatory, but discretionary. Dingier, supra at 463.

Thus, even if joinder is deemed as proper and severance is not mandatory, a motion to sever offenses may still have life. This is so because, at the trial court’s discretion, severance may also be considered appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense. In exercising its discretion, the trial court considers whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense. Dingier, supra at 463-464.

Accordingly, with regard to a motion to sever offenses, the argument is, in essence, two-pronged: (1) a mandatory severance argument, which concerns whether joinder of offenses was improper and thus severance is mandatory; and (2) a discretionary severance argument, which concerns the propriety of severance based upon the discretionary considerations discussed in Dingier. Further, in the first determination, when the defense claims improper joinder, the state has the burden to demonstrate that joinder was proper because the offenses were not joined solely on the basis that they are of the same or similar “character.” In the second determination, when the defense argues for severance based on the trial court’s discretion, the defense has the burden to demonstrate that severance should be granted based upon one or more discretionary concerns. Vaughan v. State, 210 Ga. App. 381, 382 (436 SE2d 19) (1993). Keeping these provisions in mind, we turn to the facts of the case sub judice and the allegations on appeal.

The record shows that in the summer of 1994, appellant, who had been drinking, attempted to rape a 20-year-old African-American woman who lived in his apartment complex, Francis Bartow public housing in west Savannah, Chatham County; appellant lived in 633 Francis Bartow, and the victim lived directly across the parking lot in apartment 642. At approximately 1:30 a.m., appellant watched the victim from outside the victim’s bedroom window, and saw her get ready for bed; appellant then climbed in through an open window in another room of the victim’s apartment, and entered the woman’s bedroom. Appellant jumped on the woman, beat her head against the headboard of her bed, stabbed her with a pen, and forcibly removed the victim’s shorts and underpants. Throughout the attack, appellant was giving the woman orders and repeatedly referring to her as “bitch.” The woman was able to escape before appellant could force her to have vaginal intercourse.

Less than a month later, appellant, who again had been drinking, went to Ott Street in west Savannah at 11:30 p.m., where he located his ex-girl friend, a then 17-year-old African-American woman who had not seen the appellant for a year.. Appellant forced the woman into a vehicle and took her back to the nearby Francis Bartow apartments. Once at his apartment, appellant forced the victim into his bedroom, beat her in the head with a gun, kicked her in the ribs, and forcibly removed her shorts and underpants. During the attack, appellant was giving the woman orders and repeatedly referring to her as “bitch.” Appellant had forcible vaginal intercourse with the victim.

It is important to note that appellant’s contentions concerning severance are based solely on arguments regarding improper joinder of offenses, as opposed to an argument that severance, based on discretionary considerations, was appropriate.

First, appellant contends that the rape and the attempted rape offenses were improperly joined simply because they were of the same or similar “character,” and thus, severance was mandatory. We agree that the offenses had similar character, i.e., forcible rape. Clearly, all multiple charges of rape or attempted rape lodged against a defendant will be of the same “character,” since the crime of rape consists of specific acts or elements which are characteristic of the offense. However, for purposes of a joinder analysis, the focus is on the conduct that comprises those offenses whose characteristics society defines as “rape,” and the issue is whether, upon consideration of the defendant’s conduct, the offenses were joined solely because they are of the same or similar character. Dingier, supra.

We find that under the facts in the case sub judice, the offenses were not joined solely because they were of the same or similar character; the conduct of appellant in his attacks on both women was sufficiently similar so as to evince a similar course of conduct, bent of mind, and modus operandi in appellant’s approach to women and sex when he has been drinking. Davis v. State, 180 Ga. App. 190 (1) (348 SE2d 730) (1986). These two incidents, closely related in time and during which appellant had been drinking, clearly establish appellant’s violent, object-like methodology in dealing with women, during which he de-humanizes and demeans women by repeatedly referring to them as “bitch,” as he commands their actions. In addition, the offenses illustrate appellant’s similar techniques of brutality in the accomplishment of his objective and his repeated, opportunistic targeting of young African-American women near his home. Additionally, both women were forced to escape in various states of undress, and both women sustained head injury, as well as other bodily injury.

Another telling commonality is that appellant, when drunk, cared so little about the results of his actions or possible detection, that he made no attempts to avoid recognition and chose as his victims a neighbor and an ex-girl friend. Thus, the two offenses were not joined solely because they both involved the same offense, i.e., were of the same or similar “character.” See Lundy v. State, 265 Ga. 30 (453 SE2d 466) (1995); Exley v. State, 198 Ga. App. 748, 750 (402 SE2d 798) (1991). Accordingly, severance was not demanded, and joinder was appropriate. Whitfield v. State, 217 Ga. App. 402, 403 (457 SE2d 682) (1995); Miller v. State, 214 Ga. App. 393, 394 (448 SE2d 20) (1994).

Next, appellant complains that joinder was improper because the trial court incorrectly applied a similar transaction evidentiary standard when considering the issue of whether the offenses consisted of the “same or similar conduct.” Notably, appellant, while objecting to the trial court’s denial of his motion to sever, never objected to the evidentiary standard upon which the court based its decision. In fact, appellant’s only argument to the trial court was that the offenses lacked sufficient similarity to be joined: “Well, I think we have pointed out amply that although these incidents are similar, the similarities are outweighed by the differences. . . Accordingly, “[i]t is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” Brantley v. State, 177 Ga. App. 13, 14 (338 SE2d 694) (1985).

Even assuming, arguendo, that this issue had been properly preserved for appellate review, appellant has failed to demonstrate how he was harmed by the use of a similar transaction analysis in determining whether the offenses consisted of the “same or similar conduct” for purposes of joinder. Far from being harmful, the criteria for the introduction of similar transactions under Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), are considerably more rigorous than the evidentiary standard for determining “similarity of conduct” for purposes of joinder. Under the analysis of Williams, supra, the state must show not only significant similar conduct, but similarity to the extent that proof of one offense tends to prove the other. Williams, supra at 642. Under the evidentiary standard for joinder, the state must show similarity of conduct only to the extent that the sole purpose of joinder is not because the offenses are of a like “character.” Swinney, supra at 659. Thus, it cannot be considered harmful to appellant that the trial court employed the more demanding Williams similar transaction analysis in determining whether the offenses consisted of “the same or similar conduct” for purposes of joinder.

Carter v. State, 261 Ga. 344 (404 SE2d 432) (1991), upon which appellant relies, does not demand a different result. In Carter, supra, the 1984 and 1989 murder offenses sought to be joined were “totally unrelated,” with the participation of the defendant as the only common thread. Carter, supra at 344-345. Herein, even appellant admitted that the offenses sought to be joined exhibited proximity and similarity. Further, appellant cites Carter, supra at 345, for the proposition that “[t]he posture of the defense would have been dramatically different had the severance motion been granted and had the State only been allowed to introduce evidence of the 1984 murder as a similar transaction in the trial of the 1989 murder”; however, we make two observations thereon: (1) such language was obiter dicta and (2) the substance of the quote bears little scrutiny, for if the offenses were truly “totally unrelated,” the 1984 murder would not have been admissible as a similar transaction either. See Williams, supra at 642.

Appellant’s reliance on Terry v. State, 259 Ga. 165 (377 SE2d 837) (1989), is also misplaced. In Terry, the trial court granted severance based on the discretionary Dingier analysis, where similarity of conduct is not the determinative issue, as it was in the case sub judice. Terry, supra at 168. Further, Terry was decided before Williams, supra, wherein major changes in similar transaction analysis were made. Thus, that portion of the Terry decision tipon which appellant relies concerning the then applicable similar transaction evidentiary standards in relation to the standards for discretionary severance are of little precedential value in a post -Williams world. Terry, supra at 169.

Error and harm must be shown to warrant reversal on appeal. Robinson v. State, 212 Ga. App. 613, 616 (442 SE2d 901) (1994). By simply alleging that the trial court incorrectly utilized a similar transaction analysis in determining the existence of “same or similar conduct” for purposes of joinder, appellant has shown neither error nor harm.

Finally, appellant complains that the trial court based its severance determination only on the issue of “similarity of conduct.” However, at the hearing on the motion, appellant’s only argument concerned the lack of similarity between the offenses, i.e., improper joinder requiring mandatory severance. Appellant failed to argue to the trial court concerning the second determination: the discretionary considerations for severance of offenses as outlined in Dingier, supra. Consequently, appellant’s failure to argue the discretionary severance issue left the trial court with only the improper joinder issue and a “similarity of conduct” analysis upon which to base a decision that mandatory severance was not required. “‘It is axiomatic that at the appellate level, one cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.’ ” Stringer v. Harkleroad & Hermanee, 218 Ga. App. 701, 704 (463 SE2d 152) (1995); see also Billingsley v. State, 220 Ga. App. 69, 70 (467 SE2d 377) (1996). There was no error.

2. Appellant also challenges the sufficiency of the evidence introduced against him. A review of the record, which includes the testimony of both victims concerning the acts committed by appellant, demonstrates to this Court that the evidence was sufficient for a rational trier of fact to have found appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, R J., concurs. Ruffin, J., concurs in judgment only.

Decided March 7,1997

Reconsideration denied March 18,1997

Mark B. Beberman, for appellant.

Spencer Lawton, Jr., District Attorney, Thomas M. Cerbone, Assistant District Attorney, for appellee.


text:
    A97A0462.
    RIVERS v. THE STATE.
    (484 SE2d 519)
   Eldridge, Judge.

The crime victim, Petty Officer Frank Padrone, was driving around the Georgia Ports Authority, Garden City, Chatham County, Georgia, about midnight on July 4, 1994, looking for a naval vessel that was to be commissioned on July 9, 1994. He stopped at a pay telephone to call a female friend. While Padrone was on the telephone, a black male approached, grabbed Padrone’s left arm, placed a gun to Padrone’s head, and demanded the keys to the rental car that Padrone was driving. Padrone turned, looked at the perpetrator, and saw a semi-automatic, large caliber pistol.

The perpetrator took the car keys from Padrone, walked him to the side of a fire station nearby, made him get down on his knees, and took Padrone’s wallet from his back pocket. The perpetrator then took Padrone to the rear of the rented Pontiac Grand Am that Padrone had parked beside the fire station and made Padrone get into the trunk of the rental car. Padrone was told that he would be shot unless he got into the trunk.

Padrone was locked in the trunk while the car was driven around for 15 minutes. Padrone was then made to get out of the trunk and ordered to kneel again, but Padrone refused. The perpetrator began to go through Padrone’s wallet and found Padrone’s military identification card and asked what service he was in. When Padrone told the perpetrator the Navy, the perpetrator told him that he would not be. killed because the perpetrator had once served in the Navy; the perpetrator threw down Padrone’s I.D. card and drove off in Padrone’s rental car.

After the perpetrator left, Padrone went to the nearest pay phone and called 911. The Chatham County Police responded, and when they learned the location of the armed robbery and kidnapping, they took him to the Garden City Police. The next day Padrone made a statement for the police in which he described the perpetrator as being approximately 5' 8" to 5' 10" and about 180 pounds. Thereafter, Padrone was shipped to Pearl Harbor, Hawaii, for duty.

Officer Walter Deal of the Garden City Police Department had, on July 19, 1994, a report of an armed robbery and car-jacking at the Chatham City Apartments in Garden City. The appellant, Dedric Rivers, was the complainant, who reported that a black male had approached him while, he had been on a pay phone, grabbed him around the neck, put a gun to his head, took his wallet, took his car keys, and drove off in appellant’s Camaro. Appellant was unable to provide any identifying information about the Camaro, gave a false name (Dedric McKnight), and offered no personal identification; appellant told the officer that the allegedly stolen car belonged to his parents who lived in Jacksonville and told the officer that he could be reached through his girl friend, LaToya Cobb.

Being unable to run a check on the Camaro for lack of identification and unable to locate the parents in Jacksonville, the police contacted LaToya Cobb to learn more; they found out from Cobb that appellant’s real name was Rivers, that he had no Camaro, and that he had been in the Navy; Cobb told the police that appellant had recently been driving a new Pontiac Grand Am and that he had a gun. Cobb also told the police that appellant lived in Frazier Homes on Emerald Drive.

In the early morning hours of July 19, 1994, Detective Stratman, who was investigating appellant’s complaint, went to confront appellant over the various discrepancies in his report. Upon arriving at appellant’s Frazier Street address, the detective found a Grand Am parked by the house that had the vehicle identification number for the Padrone rental car; the tag, however, was for a grey Mercury Cougar registered to appellant, and the Mercury Cougar was also parked there with the license tag from the Grand Am in the rear window.

The detective confronted appellant, who admitted possession of the Grand Am and Cougar; appellant consented to a search of the two vehicles. Appellant was arrested for possession of a stolen car, given his Miranda warnings, and was taken to the Garden City Police Department.

An identification officer, Sergeant' Kaminsky, processed both vehicles and found in appellant’s Cougar a deposit check made out to Padrone; he found in the Grand Am appellant’s wallet, containing Padrone’s driver’s license.

Sergeant Kaminsky compiled a photo array, containing appellant’s picture, for possible identification by Padrone. The photo array was sent to Naval Intelligence at Pearl Harbor, where Padrone viewed it in September 1994; after reading the admonition regarding the lineup, Padrone picked out appellant’s picture; Padrone was “not 100 percent sure but was pretty positive” that appellant was the perpetrator. When Sergeant Kaminsky sent the photo array, he did not reveal which picture was the suspect in custody, appellant.

The day prior to trial, Padrone picked appellant out of a physical lineup. Padrone identified appellant, although, again he admitted that he was not 100 percent positive; Padrone was less than 50 percent confident of his identification nearly one year later. Appellant, upon arrest, was 6' 3" in height and 245 pounds in weight. In the courtroom with different lighting, Padrone was 85 to 90 percent sure of his identification.

Appellant was tried on August 8 through 10, 1995, and convicted of armed robbery, kidnapping, aggravated assault, theft by taking, theft by receiving stolen property, and making a false report of a crime.

1. Appellant’s first enumeration of error is that the trial court erred in failing to sever Count 5, theft by receiving stolen property, and Count 6, making a false crime report, from the other counts of the indictment.

This Court held in Smith v. State, 225 Ga. App. 553 (484 SE2d 515) (1997), that when separate offenses are connected by a series of acts that form a single plan or scheme, it is not an abuse of the trial court’s discretion to join the crimes for trial. See also Dingier v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975); Samples v. State, 217 Ga. App. 509 (460 SE2d 795) (1995). The trial court has discretion on the issue unless the offenses were joined solely because they are of the same or similar character, in which case severance is mandatory. See Dingier v. State, supra; Jordan v. State, 172 Ga. App. 496 (1) (323 SE2d 657) (1984).

In the case sub judice, the false report of a crime caused the police to investigate and find that appellant had possession of Padrone’s rental car, driver’s license, and check, all of which had been stolen in an armed robbery using the same modus operandi. The stolen property was located in both appellant’s and the victim’s vehicles, and the tags on the cars had been switched. Thus, severance was not required.

Further, the charges of theft by taking and theft by receiving were alternative charges for the jury to choose if the State failed to carry the burden on identity. Thus, the two offenses were not joined solely because they both involve theft. See Lundy v. State, 265 Ga. 30 (453 SE2d 466) (1995). Accordingly, severance was not demanded, and the trial court did not abuse its discretion in denying appellant’s motion to sever. Whitfield v. State, 217 Ga. App. 402, 403 (457 SE2d 682) (1995); Miller v. State, 214 Ga. App. 393, 394 (1) (448 SE2d 20) (1994).

2. The second enumeration of error was that the evidence was not sufficient to find appellant guilty beyond a reasonable doubt under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence showed that appellant in his description of the fictitious armed robbery of himself described, in great detail, how the armed robbery occurred on Padrone; appellant had possession of Padrone’s rental car, driver’s license, and check; appellant had been in the Navy and the perpetrator had told Padrone that he had served in the Navy; Padrone saw appellant with a gun, as did Cobb; Padrone identified appellant in a photo array, as well as during a physical lineup. A rational trier of fact could have found proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, supra; Lewis v. State, 214 Ga. App. 830, 831 (449 SE2d 535) (1994); Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

3. The third enumeration of error is that the trial court erred in allowing identification testimony because there was a substantial likelihood of irreparable misidentification.

The trial court found nothing in the photo array or in the physical lineup which was suggestive or was likely to cause an irreparable misidentification of appellant. Padrone showed differing degrees of certainty about his identification of appellant: he was the most certain in September 1994, closer in time to the event; he was the least certain nearly one year later when the lighting conditions were different. However, in each instance, Padrone picked the appellant out of a non-suggestive lineup. The trial court did not find that circumstances surrounding the identification lineup were unduly suggestive, nor did the trial court find anything in the identification that was conducive to irreparable misidentification. Stovall v. Denno, 388 U. S. 293, 302 (87 SC 1967, 18 LE2d 1199) (1967). The trial court permitted Padrone to be examined and cross-examined regarding his out-of-court identification of appellant and to testify as to his degree of certainty, as well as why he recognized appellant. Montos v. State, 212 Ga. 764, 767 (6) (95 SE2d 792) (1956); Duffey v. State, 151 Ga. App. 673, 674 (2) (261 SE2d 421) (1979); Thomas v. State, 128 Ga. App. 538, 542 (4) (197 SE2d 452) (1973). Defense counsel was present at the lineup held immediately prior to trial, and there exists no contention that the lineup was impermissibly conducted. Gilbert v. California, 388 U. S. 263 (87 SC 1951, 18 LE2d 1178) (1967); United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149) (1967).

Appellant relies upon the due process standard for pre-trial identification, as set forth in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972). Under the totality of the circumstances, the trial judge did not find that either of the two prongs of the Neil test had been violated. In the charge to the jury, the trial court gave the five factors to be considered in possible misidentification: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Inconsistencies in the original description as to height and weight do not make an identification “inherently unreliable.” Grier v. State, 206 Ga. App. 93, 94 (1) (424 SE2d 358) (1992); Price v. State, 194 Ga. App. 453, 454 (1) (390 SE2d 663) (1990). The lineup was not impermissibly suggestive because the appellant was the only person to appear both in the photo array and the physical lineup. Clark v. State, 166 Ga. App. 366, 368 (3) (304 SE2d 494) (1983). There was nothing in the pre-trial identification process to require the exclusion of an in-court identification. Any uncertainty in either the out-of-court or in-court identification process was merely a factor to be considered by the jury in determining the weight to give to the witness’ testimony. Buckner v. State, 209 Ga. App. 107, 108 (1) (c) (433 SE2d 94) (1993). When a victim has sufficient independent basis for an in-court identification, even a tainted pre-trial identification process that is suggestive will not require exclusion of the in-court identification, unless there was a Fourth Amendment violation. United States v. Crews, 445 U. S. 463 (100 SC 1244, 63 LE2d 537) (1980); United States v. Ceccolini, 435 U. S. 268 (98 SC 1054, 55 LE2d 268) (1978); see also Appling v. State, 221 Ga. App. 162, 163-164 (2) (470 SE2d 761) (1996).

We find that the trial court did not err in denying the appellant’s motion in limine to suppress the identification of appellant.

4. The fourth enumeration of error is that the trial court erred in allowing a weapon, introduced by the State for demonstrative purposes, to go into the jury room.

In the case sub judice, there was no dispute that a large semiautomatic pistol was used in the armed robbery. Likewise, there was no dispute that appellant had a pistol, despite the fact LaToya Cobb, appellant’s girl friend, was unable to describe the gun; although the gun was about the same size as the demonstrative pistol, Cobb did not believe that the two looked the same. Nevertheless, the existence of the gun is not at issue in the case sub judice. Thus, contrary to appellant’s assertions, Paxton v. State, 160 Ga. App. 19 (285 SE2d 741) (1981), is not controlling, as it is distinguishable on the law and facts. In Paxton, because the existence or non-existence of a gun was a question for the jury, any demonstrative pistol could have had a prejudicial effect on the jury. The case of Stiles v. State, 216 Ga. App. 308, 309 (2) (454 SE2d 189) (1995), authorized the admission of a weapon as a demonstrative aid for the jury. See Boyd v. State, 264 Ga. 490, 491 (2) (448 SE2d 210) (1994); Duvall v. State, 238 Ga. 325, 326 (232 SE2d 918) (1977). Further, there was no dispute that a similar weapon was used during the robbery. Cauley v. State, 206 Ga. App. 233, 234 (1) (424 SE2d 822) (1992).

Thus, the trial court did not err in admitting the weapon for demonstrative purposes or allowing it to go into the jury room.

Decided March 11,1997.

Mark B. Beberman, for appellant.

Spencer Lawton, Jr., District Attorney, Christine M. Sieger Barker, Assistant District Attorney, for appellee.

5. The fifth enumeration of error is that the trial court erred in its charge to the jury. Specifically, the objection is that the pattern jury charge used the language “[mjoral and reasonable certainty is all that can be expected in a legal investigation.” Appellant’s counsel reserved the right to make later objections.

Neither the United States Supreme Court nor the Supreme Court of Georgia has held that the above language violates due process by diminishing in the minds of the jury that the standard of proof that the State must carry is “proof beyond a reasonable doubt.” See Victor v. Nebraska, 511 U. S. 1 (114 SC 1239, 127 LE2d 583) (1994); Baldwin v. State, 264 Ga. 664, 665-666 (1) (449 SE2d 853) (1994); Vance v. State, 262 Ga. 236, 237-238 (2) (416 SE2d 516) (1992), overruled in Sterling v. State, 267 Ga. 209, 210 (2) (477 SE2d 807) (1996).

“Although the better practice is to omit any reference to a ‘moral and reasonable certainty,’ the inclusion of such a reference may not constitute reversible error when considered in the context of the entirety of the charge on reasonable doubt. Hicks v. State, 262 Ga. 756, 757 (3) (425 SE2d 877) (1993). Here, the trial court’s reference to a ‘moral and reasonable certainty’ appears in the context of a charge which ‘as a whole repeatedly and accurately conveyed to the jury the concept of reasonable doubt.’ Vance v. State, [supra at 237 (2)]. Accordingly, that reference ‘did not lessen the burden of proof necessary to obtain a conviction, and therefore did not violate the Due Process Clause. (Cits.)’ Brown v. State, 264 Ga. 48, 50 (3) (a) (441 SE2d 235) (1994). See also Baldwin v. State, [supra at 666 (1)].” Armstrong v. State, 265 Ga. 18,19 (453 SE2d 442) (1995); see also Lloyd v. State, 214 Ga. App. 564, 565-569 (1) (448 SE2d 729) (1994).

We find that the trial court did not err in giving the “moral and reasonable certainty” charge.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.