text:
    A99A0055.
    RUSSELL DANIEL IRRIGATION COMPANY, LTD. et al. v. CORAM.
    (516 SE2d 804)
   Judge Harold R. Banke.

After working several years for Russell Daniel Irrigation Company, Ltd. (“RDIC”), John Coram was allowed to become a part owner in the company by purchasing a limited partnership interest and signing on to the limited partnership agreement, which contained a non-compete agreement. Simultaneously, he and the other limited partners were required to execute employment agreements that contained a different non-compete covenant. Five years later he left for another company in the irrigation business.

When he sued RDIC to collect on monies owed him under the partnership agreement, RDIC counterclaimed for damages for breach of the restrictive covenants. Arguing the restrictive covenants in both agreements were unenforceable, Coram successfully moved for partial summary judgment on the counterclaim. RDIC appeals only with respect to the enforceability of the non-compete covenant found in the employment agreement.

1. Strict scrutiny applies to covenants ancillary to .employment agreements, whereas a much lesser degree of scrutiny applies to covenants ancillary to the sale of a business; a middle level of scrutiny applies to covenants found in professional partnership agreements. Habif, Arogeti & Wynne, P.C. v. Baggett, 231 Ga. App. 289 (1) (498 SE2d 346) (1998).

RDIC claims Coram falls in the middle category because he received partnership interests on the same date he executed the employment agreement. This argument fails for two independent reasons.

First, the limited partnership agreement had its own restrictive covenant in addition to the restrictive covenant contained in the employment agreement, which subjects the latter covenant to strict scrutiny. See Johnstone v. Tom’s Amusement Co., 228 Ga. App. 296, 298 (2) (491 SE2d 394) (1997) (physical precedent only); Arnall Ins. Agency v. Arnall, 196 Ga. App. 414, 419 (2) (396 SE2d 257) (1990) (physical precedent only). Subjecting two restrictive covenants to different treatment, even though found in agreements executed as part of the same transaction, is consistent with the rationale behind the different levels of scrutiny. When one is selling a business or purchasing partnership interests, more weighty consideration is being offered in exchange for the non-compete covenant. The business seller is receiving substantial consideration for the business he has built up, the value of which would be significantly diminished to the buyer if he were allowed to compete in the same market. The potential partner will receive a share of the profits, which profits are generally protected by non-compete covenants required from the other partners. Thus, non-compete covenants found in sale of business or partnership agreements are generally afforded greater degrees of latitude. If the business seller or potential partner as a part of the transaction also enters into a separate employment agreement with its own additional non-compete covenant, then the consideration received for that covenant is usually less (generally employment benefits such as salary and insurance coverage), subjecting it to a stricter level of scrutiny. The context and consideration of the two restrictive covenants being different, they are subject to different levels of scrutiny.

Second, the surrounding circumstances evince that Coram did not have bargaining power equivalent to that of RDIC or of a professional negotiating a partnership agreement. “If it appears that his bargaining capacity was not significantly greater than that of a mere employee, then the covenant should be treated like a covenant ancillary to an employment contract. . . .” White v. Fletcher/Mayo/Assoc., 251 Ga. 203, 208 (303 SE2d 746) (1983); see S. Hammond Story Agency v. Baer, 202 Ga. App. 281 (414 SE2d 287) (1991).

Coram had worked at RDIC for nine years and was vying for an ownership in the business. Even though he became part owner of the business as a result of the transaction (owning ten percent), he had the bargaining power of only a mere employee at the time he negotiated the transaction. See Johnstone, supra, 228 Ga. App. at 300 (Johnstone was employee at time he negotiated lease with his employer; strict scrutiny applied). Compare Baggett, supra, 231 Ga. App. at 291 (Baggett had been partner/shareholder of promisee for 13 years at time he negotiated restrictive covenant; middle level of scrutiny applied).

These circumstances differ substantially from cases applying the middle level of scrutiny. See, e.g., Rash v. Toccoa Clinic Med. Assoc., 253 Ga. 322, 325-326 (2) (320 SE2d 170) (1984); Baggett, supra, 231 Ga. App. at 290-291 (1). These cases involved professionals, either public accountants or physicians, who either were already partners at the time of negotiation or were in such demand that they were being recruited to join the partnership or professional corporation as an owner. The bargaining power wielded by these individuals was far greater than that of Coram, who as a non-professional employee, was negotiating with his employer for the privilege of owning a piece of the business. Even though he may have been an important employee in RDIC, he was still an employee and could reasonably have assumed that if he did not do as RDIC wished, he would be stigmatized as not being a team player, thereby jeopardizing his career prospects with RDIC. White, supra, 251 Ga. at 207.

The court did not err in scrutinizing the employment restrictive covenants strictly.

2. Under the strict scrutiny accorded restrictive covenants ancillary to employment agreements, the covenant is unenforceable because it is overbroad and indefinite. It provides:

During the term of his employment, the Employee having been responsible for all phases of the operation of the Russell Daniel Irrigation Company, Ltd. at its Athens location, it is hereby agreed that after the expiration of this Agreement or any renewals thereof, or after termination for cause, the Employee will not, for a period of two (2) years following the termination of employment, personally engage in any activity which is directly competitive with any activity engaged in by the Russell Daniel Irrigation Company, Ltd. at its Athens, Havana, Tifton location [s] at the time of his termination. The limitation on directly competitive activities shall apply only in the following counties: [13 counties listed] and it is expressly acknowledged and agreed by both parties that the Employee solicited and did business on behalf of the Employer in each of the above-named counties.

(a) The scope of activities proscribed by the covenant is too large. Coram is prohibited from engaging in any activity directly competitive with any activity engaged in by RDIC at its three locations. This covenant is unenforceable because it purports to prevent Coram from obtaining employment with any competitor in any capacity. Such a restriction has repeatedly been held to be overbroad, unreasonable, and prohibited by the Georgia Constitution. Wolff v. Protege Systems, 234 Ga. App. 251, 252 (1) (506 SE2d 429) (1998).

Decided April 27,1999.

Dan A. Aldridge, Jr., for appellants.

Blasingame, Burch, Garrard, Bryant & Ashley, Thomas H. Rogers, Jr., for appellee.

Only if the employee is the “heart and soul” of the business and has been involved in every facet of the business may the covenant prohibit him from working in a specified business area, and then only in a very restricted territory and for a short period of time. Watson v. Waffle House, 253 Ga. 671, 673 (2) (324 SE2d 175) (1985). Because the evidence does not show that Coram was the heart and soul of the Havana and Tifton businesses, this exception does not apply.

(b) Moreover, the restriction against engaging in activities competitive with activities engaged in by RDIC is too indefinite. Uni-Worth Enterprises v. Wilson, 244 Ga. 636, 639 (1) (261 SE2d 572) (1979). Inasmuch as blue-penciling is not available to re-write defective employment restrictive covenants (Richard P. Rita Personnel Svcs. Intl. v. Kot, 229 Ga. 314 (191 SE2d 79) (1972)), the court correctly held the covenant unenforceable.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A99A0114.
    BROWN v. THE STATE.
    (516 SE2d 810)
   Judge Harold R. Banke.

A jury returned a verdict finding George Brown guilty of committing simple battery by intentionally making physical contact of an insulting or provoking nature with the victim. In this appeal of his conviction, Brown challenges the sufficiency of the evidence to support the verdict.

On the day in question, the victim and Demetrius Thomas were engaged in conversation while sitting in Thomas’ car in the parking lot of the victim’s hair salon, when Brown appeared. The victim testified that Brown accused her of taking his car keys, made certain threatening remarks, and then entered the salon. She further testified that Brown repeated the remarks upon leaving the salon and proceeded to strike her and spit in her face when she exited Thomas’ car.

Decided April 27,1999.

Julie B. Prokopovich, Mark A. Sullivan, for appellant.

Gerald N. Blaney, Jr., Solicitor, Shampa Banerji, Assistant Solicitor, for appellee.

On appeal from a criminal conviction, our review of the evidence is guided by certain well-established principles. As recognized in cases such as Shabazz v. State, 229 Ga. App. 465 (1) (494 SE2d 257) (1997), the evidence is viewed in a light most favorable to the verdict; we do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); and the jury’s verdict will be upheld as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case. The victim’s testimony provides competent, direct evidence adequate to support the jury verdict under the Jackson v. Virginia standard.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A99A0257.
    VICK v. THE STATE.
    (516 SE2d 815)
   Judge Harold R. Banke.

Perry Vick was convicted of aggravated assault, terroristic threats, hindering a law enforcement officer, fleeing and attempting to elude an officer, and possession of a firearm by a convicted felon. After the trial court granted an out-of-time appeal but denied the motion for new trial, Vick filed this direct appeal. See Bohannon v. State, 262 Ga. 697 (425 SE2d 653) (1993). Vick challenges the sufficiency of the evidence on certain counts and contends the trial court erred by refusing to allow him to present his own closing argument. Held:

1. Vick contends the evidence was insufficient to support a conviction for aggravated assault. The evidence was that Vick entered the passenger door of his wife’s car and pointed a gun at her. Mrs. Vick had never been more scared in her whole life. She thought of running away but testified she knew she could not outrun a bullet. Vick threatened to kill her and even held the gun between her eyes.

A person commits the offense of aggravated assault when he assaults with a deadly weapon, which, when used offensively, is likely to or actually causes serious bodily injury. OCGA § 16-5-21 (a) (2). There is no requirement that a victim be actually injured. See Daughtry v. State, 180 Ga. App. 711, 712 (1) (350 SE2d 53) (1986). Accord Gilbert v. State, 209 Ga. App. 483, 484 (1) (433 SE2d 664) (1993).

Decided April 27,1999.

Neel & Smith, Barry S. Haney, for appellant.

Vick also questions the conviction of possession of a firearm by a convicted felon because no gun was admitted at trial and there was little testimony describing the gun. The victim testified that defendant had a gun and threatened her with it. “There being no evidence that the [gun] was not a firearm, the evidence was sufficient to support the jury’s finding that it was such beyond a reasonable doubt.” Head v. State, 170 Ga. App. 324, 325 (1) (316 SE2d 791), rev’d on other grounds, 253 Ga. 429 (322 SE2d 228) (1984).

The evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to support conviction on these counts. Absent argument on the remaining counts any such argument is deemed abandoned. Grimsley v. State, 233 Ga. App. 781, 782 (505 SE2d 522) (1998).

2. Prior to the beginning of the trial, Vick’s appointed counsel informed the court that Vick wanted to make his own closing argument. The court denied the request.

Vick relies on Jackson v. State, 149 Ga. App. 496, 499 (1) (254 SE2d 739) (1979) which reversed a conviction where the court refused to allow the defendant to speak during closing argument when he already had an attorney. The defendant had invoked his constitutional right to defend himself “in person, by attorney, or both.” See Art. I, Sec. I, Par. IX, Constitution of Georgia, 1976. However, that constitutional provision has been superseded by Art. I, Sec. I, Par. XII, Constitution of Georgia, 1983, and a layperson no longer has the right to represent himself and also be represented by an attorney. Seagraves v. State, 259 Ga. 36, 39 (376 SE2d 670) (1989).

Jackson v. State also explains that the trial judge has broad discretion in regulating the conduct of counsel and witnesses and in prescribing the manner in which the business of the court shall be conducted. Id. It will be reversed only upon a showing of abuse. Id. We find no abuse of discretion in the trial court’s ruling.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

T. Joseph Campbell, District Attorney, Kelly F Herron, Assistant District Attorney, for appellee.


text:
    A99A0273.
    THE STATE v. MOSES.
    (516 SE2d 807)
   Judge Harold R. Banke.

After Mark Moses performed poorly on field sobriety tests, Officer Campbell placed him under arrest for DUI and read him the Implied Consent Notice set forth in OCGA § 40-5-67.1 (b). Officer Campbell requested that he submit to a breath test, to which Moses consented. Dissatisfied with the results of that test, Officer Campbell re-read Moses the “Implied Consent Notice,” this time asking for a blood test. Again Moses consented, and the test was taken. At no point was Moses warned of his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

Moses moved to suppress the results of the blood test, arguing State v. Warmack, 230 Ga. App. 157 (495 SE2d 632) (1998), required the giving of Miranda warnings before requesting additional chemical tests. Granting the motion, the court held that a subsequent amendment to OCGA § 40-5-67.1 did not change this holding of Warmack. The State appeals. Held:

No Miranda warnings are constitutionally required prior to requesting a blood-alcohol test under the implied consent statute. Allen v. State, 254 Ga. 433, 434 (3) (330 SE2d 588) (1985); see State v. Mack, 207 Ga. App. 287 (2) (427 SE2d 615) (1993). Because the right to refuse a blood test is granted by statute, the legislature may limit the nature of that right. Allen, supra, 254 Ga. at 434 (1) (b).

Referencing the chemical tests available under the Implied Consent Statute (OCGA § 40-5-55), OCGA § 40-5-67.1 (a) originally provided that a law enforcement officer suspecting a DUI violation could request a chemical test by designating “which test shall be administered, provided that the officer shall require a breath test or a blood test and may require a urine test.” Based on this language, Warmack, supra, 230 Ga. App. at 158, held that to avoid losing his license an individual only had to submit to a breath test or a blood test, not to both. “Once the arresting officer designates the test, the statute provides no authority for making another selection when the officer becomes dissatisfied with the results of the State test.” Id. Warmack held under Georgia law that although Miranda warnings were not required before requesting the initial test, they were required before requesting additional tests. Id. at 158-159; see generally McKeown v. State, 187 Ga. App. 685, 686 (1) (371 SE2d 243) (1988) (an officer may request additional tests).

Decided April 27,1999.

S. James Tuggle, Solicitor, for appellant.

Allen M. Trapp, Jr., for appellee.

Effective March 27,1998, the legislature amended OCGA § 40-5-67.1 (a) to provide that “the requesting law enforcement officer shall designate which test or tests shall be administered initially and may subsequently require a test or tests of any substances not initially tested.” Ga. L. 1998, p. 210, § 2. Moses’ incident took place on May 19, 1998. Because officers are now authorized to require subsequent tests, the statutory underpinnings of Warmack’s conclusion have fundamentally changed. But its rationale is extant. Just as Miranda warnings were not necessary before requesting the initial test which an officer could require before the amendment, so Miranda warnings are not necessary before requesting additional tests, now that the amendment authorizes an officer to require them.

The court erred in granting the motion to suppress.

Judgment reversed.

Blackburn, P. J, and Barnes, J., concur.


text:
    A99A0293.
    BURNEY v. THE STATE.
    (516 SE2d 802)
   Judge Harold R. Banke.

Burney was charged with aggravated assault on March 19,1994, and with kidnapping on the same date and again on May 16. He was convicted of the March 19 offenses and acquitted of the May 16 crime. After Burney’s trial attorneys withdrew from this case, his new lawyer moved for a new trial on grounds of trial error and ineffective assistance of counsel. Following denial of the motion, Burney appeals.

On the evening of March 19, the victim had returned home from a date with Small, her future husband. After exiting her car, she was accosted by Burney, her former husband. He brandished a knife and forced her to re-enter the car and drive him from her home in Claxton toward the nearby town of Hagan. Before leaving Claxton, Burney exited the car twice, once in an unsuccessful attempt to find Small at his home and again when he encountered Small while riding down the street. As Burney was driving down back roads in the county, he threatened to kill the victim. Fearing for her life, she leaped from the moving car and broke her arm. Burney then took her to the hospital.

On May 16, the victim was leaving the hospital after receiving therapy for her arm, when she was again accosted by Burney and forced to get into her car. On this occasion, however, an ambulance driver appeared on the scene and caused Burney to flee.

It is not disputed that the State made a written request for a jury charge on false imprisonment. At trial, the State asked that such charge be given because the only difference between false imprisonment and kidnapping is that kidnapping has the additional element of asportation, Sallie v. State, 216 Ga. App. 502, 503 (455 SE2d 315) (1995), and the jury could have found that on May 16 the victim was detained without having been abducted or stolen away and therefore falsely imprisoned but not kidnapped. The court decided not to give the requested charge, observing “either he did it or he didn’t is the way I see it.” Defense counsel raised no objection, stating that he had researched the question the night before and concluded that kidnapping has no lesser included offense.

Burney claims trial error based on the court’s refusal to give the State’s requested charge. Additionally, he charges trial counsel with ineffective assistance in failing to object to the court’s refusal to so charge. Held,'.

1. Burney’s claim of trial error has been waived, if for no other reason than because of his trial counsel’s acquiescence in the court’s decision not to give the charge. Valdez-Hardin v. State, 201 Ga. App. 126 (410 SE2d 354) (1991).

2. Cases such as Roland v. State, 266 Ga. 545, 546 (2) (468 SE2d 378) (1996), hold: “In order to succeed on an ineffective assistance of counsel claim, a defendant must show that his counsel’s performance was deficient and that counsel’s deficient performance prejudiced his defense. [Cits.]”

Burney cannot show that he was prejudiced as a result of the trial court’s refusal to charge on false imprisonment as a lesser included offense of the May 16 kidnapping, as he was acquitted of that charge.

Burney was not entitled to a charge on false imprisonment as a lesser included offense of the March 19 kidnapping unless there was evidence from which the jury could have found him guilty of the lesser offense rather than the greater. See Stovall v. State, 216 Ga. App. 138, 140 (5) (453 SE2d 110) (1995); Oliver v. State, 232 Ga. App. 816, 819 (2) (503 SE2d 28) (1998) (explaining State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990)). Burney argues that evidence showing that the victim was not being transported anywhere when he stopped the car in pursuit of Small on March 19 entitled him to a charge on false imprisonment. Under this reasoning, a charge on false imprisonment as a lesser included offense of kidnapping would always be required unless the kidnapper and victim remained in perpetual motion after the abduction occurred. This is not the law, as commission of the offense of kidnapping is completed when the vietim is abducted to a place the victim does not wish to go. See Johnson v. State, 195 Ga. App. 723, 724, n. 1 (394 SE2d 586) (1990). Kidnapping is not a continuing offense, Miller v. State, 174 Ga. App. 42, 44 (3) (329 SE2d 252) (1985), and only the slightest movement of the victim is required to establish the element of asportation. Robinson v. State, 210 Ga. App. 175, 176 (1) (435 SE2d 466) (1993). Therefore, Burney’s kidnapping of the victim was consummated when he forced her to drive him away from her home. There is no evidentiary support for a theory that she was falsely imprisoned without having been asported away. Stovall, supra at 141 (5).

Decided April 27,1999

Hal T. Peel, for appellant.

Dupont K. Cheney, District Attorney, James S. Archer, Assistant District Attorney, for appellee.

Even though the record indicates that trial counsel’s failure to object to the court’s refusal to charge on false imprisonment resulted from poor research rather than trial tactics and strategy, compare Milliken v. State, 230 Ga. App. 810, 811 (2) (b) (498 SE2d 127) (1998), counsel’s performance did not constitute ineffective assistance.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A99A0391.
    HARPER v. CARROLL TIRE COMPANY, INC.
    (516 SE2d 811)
   Judge Harold R. Banke.

Carroll Tire Company, Inc. filed a complaint on account against James Harper, Jr. and The Original Harper Tire, Inc. to recover a principal indebtedness of $24,669.06 and interest. A default judgment was entered against the corporate defendant because it did not file a timely answer. The individual defendant did answer in a timely fashion, but, on motion by plaintiff, the court struck his original and amended answers and entered default judgment against him on the ground that his defensive pleadings failed to comply with OCGA § 9-10-112.

OCGA § 9-10-112 provides that

[w]henever an action is brought on an open account and the same is verified by the plaintiff as provided by law, the answer either shall deny that the defendant is indebted in any sum or shall specify the amount in which the defendant admits he may be indebted and it shall be verified as required by law.

Decided April 27,1999.

Philip S. Coe, for appellant.

Howe & Associates, Richard S. Loudermilk, for appellee.

Where a suit is brought on a verified open account and the defendant’s plea does not comply with OCGA § 9-10-112’s pleading requirements, the plea is properly struck. Nelson v. Mexicana de Jugos Y Sabores, 139 Ga. App. 612 (2) (229 SE2d 102) (1976).

The account in this case was not verified as to the individual defendant’s liability thereon. The complaint was not verified. Although it was accompanied by a sworn affidavit in which plaintiff’s president averred that the indebtedness sued on was owed by the corporate defendant, no testimony was given concerning any debt owed by the individual defendant. Another exhibit to the complaint is a statement of account, but it too identifies only the corporate defendant as a debtor. Since only those allegations of the complaint relating to the corporate defendant were verified, the trial court was not authorized to apply the pleading requirements of the statute to the individual defendant.

The sufficiency of his defensive pleadings was thus governed by the general pleading requirements of OCGA § 9-11-8 (b). In pertinent part, that statute requires a party to state his defenses in short and plain terms, and to either admit or deny the averments upon which the adverse party relies, or to state that he is without knowledge or information sufficient to form a belief as to the truth of an averment which has the effect of a denial. Bailey v. Bruce, 132 Ga. App. 782, 784-785 (1) (209 SE2d 135) (1974). Both the original and amended answers filed by the individual defendant complied with these requirements.

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A99A0694.
    BERRY v. DAVIS FEED & SEED, INC.
    (516 SE2d 812)
   Judge Harold R. Banke.

Berry appeals the trial court’s grant of Davis Feed & Seed, Inc.’s motion for summary judgment.

Berry, an employee of M. L. Teston Construction Company (“Teston Construction”) brought this action against Davis Feed & Seed (“Davis Feed”) and Glenn Davis to recover for injuries sustained in an on-the-job accident. At the time of the accident, Teston Construction was building a personal residence for Davis, who is Davis Feed’s president and sole shareholder. Employees of Davis Feed had been dispatched to the construction site to assist in the raising of a wall. Berry was injured when the wall fell on him. In his complaint, he charged Davis Feed’s employees with negligence in causing the fall and sought to hold Davis Feed vicariously liable under the doctrine of respondeat superior.

Berry filed a claim for workers’ compensation benefits against Teston Construction, Davis Feed, and Davis Feed’s workers’ compensation insurer. Teston Construction did not have workers’ compensation insurance. Although it does not appear that Davis was a party to that proceeding, he was dismissed as a defendant in this suit after Berry’s claim was settled.

Davis Feed sought summary judgment under the borrowed servant rule and fellow servant doctrine. The borrowed servant rule is an exception to the doctrine of respondeat superior and provides that an employer lending its employee to another is not responsible for any negligence of the employee committed while within the scope of his employment by the other. Hoffman v. Wells, 260 Ga. 588, 589 (2) (397 SE2d 696) (1990). Under the fellow servant doctrine, a borrowed servant is an employee of the borrowing employer and entitled to the tort immunity of the borrowing employer under the exclusive remedy provision of the workers’ compensation statute, OCGA § 34-9-11. See Burt v. Underwood, 258 Ga. 207 (367 SE2d 230) (1988).

Berry argues that conflicts in the evidence create a material issue of fact on the question of whether Davis Feed’s employees were borrowed servants of Teston Construction when he was injured. As an alternative theory of recovery, Berry asserts that evidence of extensive involvement by Davis Feed’s employees in the construction of Davis’ residence gives rise to an inference that Davis Feed was acting in the role of principal contractor for the project. Berry uses this assertion as a basis for arguing that Davis Feed owed him a duty of care. But under OCGA § 34-9-8 (a), a principal contractor is a statutory employer of an employee of an intermediate or subcontractor and therefore entitled to workers’ compensation tort immunity. Yoho v. Ringier of America, 263 Ga. 338 (434 SE2d 57) (1993).

The evidence shows that Teston Construction is owned by Martin Teston and is engaged in the. business of building houses. Davis Feed is in the business of selling agricultural products. For building his house, Davis agreed to pay Teston Construction its costs plus ten percent. While the house was being built, Martin Teston telephoned Davis and informed him that he needed additional manpower in order to raise the wall. Davis sent certain of Davis Feed’s employees to assist in the task. The wall fell on Berry as employees of both companies were attempting to raise it. Davis was not present at the construction site at the time. Teston was always there.

In order to determine when a loaned employee is considered a borrowed servant, three factors must be demonstrated: (1) The borrowing employer must have complete control and direction over the employee for the occasion; (2) the lending employer must have no such control and (3) the borrowing employer must have the exclusive right to discharge the employee. [Cit.]

Staffing Resources v. Nash, 218 Ga. App. 525, 526 (1) (462 SE2d 401) (1995). As to the third requirement, “the temporary employer’s exclusive power to discharge must relate only to the temporary assignment.” Id.

Teston, Davis, and employees of Davis Feed all testified that during the raising of the wall Davis Feed’s employees were under the exclusive control and direction of Teston. Davis testified that if any of Davis Feed’s employees had been unable to perform the required work, Teston would have been the one to take them off the job. Both Teston and Davis testified that Davis Feed’s employees did not otherwise participate in the construction of the house, other than to clean up construction debris under Teston’s direction.

Berry, on the other hand, testified that employees of Davis Feed were continually on the premises assisting with construction activities. Berry also averred that, in attempting to raise the wall, at least one of Davis Feed’s employees (the warehouse foreman) was acting in a supervisory capacity by telling him and others what to do. Berry, however, admitted that he never saw Davis giving instructions to any employees at the construction site; that no one affiliated with Teston Construction told him to take instructions from any of Davis Feed’s employees; and that, as far as he knew, Davis Feed’s employees were taking their instructions from Teston.

Although inconsistencies exist between Berry’s testimony and that presented by Davis Feed, there is no material conflict requiring submission of the case to a jury. Davis Feed’s witnesses testified without dispute that at the time of Berry’s injury, employees of Davis Feed were under the exclusive control and direction of Teston. Obviously, Davis could not have discharged them from their temporary assignment, as he was not even on the premises.

Application of the law to the evidence entitled Davis Feed to summary judgment under either of Berry’s theories of recovery.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

Decided April 27,1999.

Richard W. Summers, for appellant.

Forbes & Bowman, Morton G. Forbes, Johnny A. Foster, for appellee.


text:
    A99A0727.
    THE STATE v. DAY.
    (516 SE2d 822)
   Judge Harold R. Banke.

Charged with DUI, Harold Day successfully moved to suppress evidence obtained during his encounter with police. The State appeals, arguing (i) by the time the encounter progressed to a Terry stop, the officer had an articulable suspicion, and (ii) the encounter gave the officer probable cause to arrest Day.

Based on a tip received from a concerned citizen of a possible DUI, Officer Ramey drove up behind Day, who was sitting motionless in his truck on the side of the road, staring straight ahead. Day drove away, traveling approximately 500 feet until he turned into his driveway. He exited his vehicle as Officer Ramey approached and upon request presented identification and proof of insurance. The officer detected the odor of an alcoholic beverage on his breath. When asked, Day admitted he had drunk a half-pint of alcohol.

Officer Ramey then conducted a series of field sobriety tests, which Day performed poorly. He excluded the letters Q through Z when reciting the alphabet; he refused to follow instructions in the walk-and-turn test and was unsteady; and his eyes involuntarily jerked during the horizontal gaze nystagmus test. Officer Ramey arrested him and cited him for driving under the influence. Day consented to a breath test, which was administered at the jail.

Day moved to suppress all evidence obtained as a result of the encounter with police, including the breath test. Granting the motion, the court found that the officer lacked an articulable suspicion to approach Day and that she lacked probable cause to arrest him. Held:

1. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994), sets forth the applicable standard of review:

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

Based on the undisputed evidence, approaching Day after he had voluntarily stopped was not a “stop” or “seizure” for Fourth Amendment purposes. Officer Ramey had followed Day without turning on her blue lights or a siren. After parking his truck, Day exited on his own accord. Only then did she approach him, asking for his driver’s license, proof of insurance, and whether he had been drinking.

The actions of an officer approaching a stopped vehicle, requesting to see a driver’s license, and inquiring about possible criminal or suspicious activity clearly fall within the realm of the first type of police-citizen encounter and do not amount to a stop. [Cits.]

McClain v. State, 226 Ga. App. 714, 716-717 (487 SE2d 471) (1997); see also State v. Kaylor, 234 Ga. App. 495 (507 SE2d 233) (1998). “Similarly, a police officer may approach citizens who are on foot to make inquiries without fear of intruding on constitutional rights. [Cits.]” McClain, supra, 226 Ga. App. at 717, n. 2.

When the officer asked Day to perform the field sobriety checks, the encounter became a Terry stop. Construing the evidence in Day’s favor, he was no longer free to decline the officer’s requests or otherwise terminate the encounter. This brief investigatory stop of Day was constitutionally proper, for at that point the officer had a reasonable, articulable suspicion of criminal activity. She had witnessed him sitting motionless in his car on the side of the road; she had seen him drive to his residence; she had smelled the odor of an alcoholic beverage on his breath; and he had admitted to recently drinking alcohol. See McClain, supra, 226 Ga. App. at 718.

Based on the undisputed facts, the court erred as a matter of law in holding an articulable suspicion was necessary to approach Day. An approach is not a stop. At the point the encounter progressed into a stop, the officer had an articulable suspicion of criminal activity.

2. The State also contends the court erred in finding the officer lacked probable cause to arrest Day.

“For an officer to have sufficient probable cause to conduct a valid DUI arrest, he must have knowledge or reasonably trustworthy information that: (1) defendant was in actual physical control of a moving vehicle; (2) while under the influence of any drug; (3) to a degree which renders defendant incapable of driving safely.”

Decided April 27,1999.

Gwendolyn R. Keyes, Solicitor, Candace N. Kicklighter, Thomas E. Csider, Assistant Solicitors, for appellant.

Furlong & Franco, Leonard L. Franco, for appellee.

Waggoner v. State, 228 Ga. App. 148,150 (2) (491 SE2d 88) (1997).

The undisputed facts show Officer Ramey did not arrest Day until after his faltering and unsteady performance of the field sobriety tests. Even in the absence of accurate field sobriety tests, smelling an alcoholic beverage on Day combined with witnessing unsteadiness and hearing him admit to recent drinking suffices for probable cause. See Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996); State v. Smith, 196 Ga. App. 876, 877 (397 SE2d 304) (1990).

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.

       To the extent the motion sought to exclude testimony, it is more accurately denominated a motion in limine. McClain v. State, 226 Ga. App. 714, 715-716 (1) (487 SE2d 471) (1997).


text:
    A99A0854.
    GIBSON v. THE STATE.
    (516 SE2d 816)
   Judge Harold R. Banke.

Willie Gibson appeals his convictions of aggravated assault and possession of a knife during the commission of a crime. He raises issues as to his mental capacity to commit the crimes.

The State’s evidence showed that several weeks after Gibson and his wife separated, he broke into her house and stabbed her repeatedly with a knife. Police found a knife with blood stains on it in a drainage area approximately 75 feet away from the truck Gibson had been driving. The knife appeared to have been recently placed there. Upon being questioned by police, Gibson denied having possessed a knife or driven the truck that evening. An officer who had investigated a dispute between Gibson and his wife several weeks earlier testified that the knife found on this occasion was the same as one he had taken from Gibson during the previous incident.

Testimony given by the investigating officer and by Gibson’s wife authorized the jury to find that Gibson had consumed alcohol and was intoxicated on the night these crimes were committed. The officer investigating the prior incident testified that Gibson was also intoxicated then. Gibson testified that he quit drinking years ago.

Evidence presented by the defense established that Gibson previcrasly had been hospitalized in a psychiatric ward and later received out-patient psychiatric treatment based on complaints of auditory hallucinations, depression, and blackouts. Gibson’s psychiatrist diagnosed him as paranoid schizophrenic and prescribed Thorazine for the psychosis and Prozac for the depression, but stopped treating him about six months prior to the events in this case. A mental health counselor who was treating Gibson at the time of this incident testified that the preceding day he complained of hearing voices telling him to hurt someone.

Gibson testified that the day before his wife was stabbed, he had taken Thorazine and Prozac in lieu of medication for cancer treatment which he had lost. He further testified that he had a history of blackouts and denied any recollection of assaulting his wife. Evidence of prior threats by Gibson to kill his wife was admitted through the testimony of several witnesses. The wife testified that Gibson had said he would be found to be insane and thereby exonerated.

Prior to trial, a psychologist employed by the forensic services division of Central State Hospital evaluated Gibson. Gibson told him that the last thing he had done prior to the assault on his wife was use solvents to clean a carburetor. The psychologist affirmed that cleaning solvents can make one “woozy or somewhat intoxicated” if inhaled. Based on his evaluation of Gibson, the psychologist expressed his opinion that it was “quite possible” that the Prozac and Thorazine along with the solvents could have put Gibson in a mental state such that he would not have known the difference between right and wrong at the time in question. Held:

1. Gibson first complains of the trial court’s failure to give certain of his requests for jury instructions.

(a) Gibson asked the court to charge the jury:

If because of the influence of alcohol or drugs one’s mind becomes so impaired as to render him/her incapable of forming an intent to do the act charged, or to understand that a certain consequence would likely result from it, he/she would not be criminally responsible for the act.

But this proposed instruction is not an accurate statement of the law, because the inability to distinguish between right and wrong is not a defense if it is the consequence of voluntary intoxication. Foster v. State, 258 Ga. 736, 743 (10) (374 SE2d 188) (1988). Blankenship v. State, 247 Ga. 590 (277 SE2d 505) (1981), relied on lay Gibson, is not authority to the contrary. The court did not err in refusing to give the requested charge.

(b) Gibson also asked the court to instruct the jury on the defense of insanity by reason of involuntary intoxication under OCGA § 16-3-4. Since the trial court did charge the jury on the substance of this Code section, this enumeration is without merit.

Decided April 27,1999.

Robert M. Bearden, Jr., for appellant.

Charles H. Weston, District Attorney, Myra Y. Christian, Assistant District Attorney, for appellee.

2. Gibson next contends that the court erred in admitting the knife found in the drainage area into evidence because it was not connected to the crimes charged.

There is no merit in this contention, as the testimony of the officer who had responded to the earlier incident, and other circumstances, provided ample basis for a finding that this knife was the one used by Gibson to stab his wife. Thus, the knife was “connected by testimony to the crime.” Waters v. State, 169 Ga. App. 290, 294 (4) (312 SE2d 812) (1983). Gibson’s other objection will not be considered on appeal as it was not raised at trial. Price v. State, 204 Ga. App. 288 (1) (419 SE2d 126) (1992).

3. Primarily on the basis of evidence of his purported insanity, Gibson maintains that the State did not prove his guilt beyond a reasonable doubt.

Under Georgia law, Gibson was presumed sane. Kirk v. State, 252 Ga. 133 (2) (311 SE2d 821) (1984). The jury’s finding of sanity will be upheld unless the proof of insanity was clear and overwhelming. Nagel v. State, 262 Ga. 888, 891 (2) (a) (427 SE2d 490) (1993). It was not. Viewed in the light most favorable to the State, the evidence supports the jury’s conclusion that Gibson was not insane. Taylor v. State, 261 Ga. 287, 291 (1) (c) (404 SE2d 255) (1991). Under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence supports Gibson’s convictions.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: Ruffin, Judge.

text:
    A99A0336.
    WATKINS & WATKINS, P.C. et al. v. COLBERT et al.
    (516 SE2d 347)
   Ruffin, Judge.

John D. Watkins and his law firm, Watkins & Watkins, P.C. sued Melvin J. Colbert, Brenda Colbert, Calvary Deliverance Evangelistic Church, Inc., George Lewis, and Thomas Tucker for tortious interference with business relations. The trial court granted defendants’ motion for summary judgment and Watkins appeals. Because defendants are entitled to summary judgment as a matter of law, we affirm.

We note at the outset that Watkins has failed to provide any citations to the record in his brief either in his statement of facts or in his argument section in violation of Court of Appeals Rules 27 (a) (1) and 27 (c) (3) (i). “The burden is upon the party alleging error to show it affirmatively by the record.” (Punctuation omitted.) Sparti v. Joslin, 230 Ga. App. 346, 347 (2) (496 SE2d 490) (1998). “We have repeatedly held that it is not the function of this court to cull the record on behalf of a party.” (Punctuation omitted.) Rolleston v. Cherry, 226 Ga. App. 750, 753 (1) (b) (487 SE2d 354) (1997). However, because the record is short and appellees have provided ample and accurate record citations, we will exercise our discretion and resolve this appeal on its merits.

On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Entertainment Sales Co. v. SNK, Inc., 232 Ga. App. 669 (502 SE2d 263) (1998). “A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element. of plaintiff’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The underlying dispute arose from Watkins’ representation of his former client, Rosa Belle Williams, who is not a party to this case. On three separate occasions in 1993, Williams loaned Watkins $10,000 for a total of $30,000. According to Watkins, Williams invested this money in Watkins’ law practice to underwrite several medical malpractice cases. Watkins admits that Williams was given stock in Watkins & Watkins, PC. “to show her investment only.”

In the fall of 1996, Williams agreed to sell a five acre tract of land to defendant Calvary Deliverance Evangelistic Church for $15,000 per acre. Defendants James Colbert and Brenda Colbert are, respectively, the pastor and associate pastor of the church. Watkins advised Williams not to sell the property for $15,000 per acre because she told him that, prior to the offer from the church, another party had offered $50,000 per acre for the same property. Williams disregarded Watkins’ advice and sold the property on November 29, 1996. In her affidavit, Williams averred that Watkins treated her rudely when she disagreed with him. In addition, she stated that Watkins refused to repay the money she had loaned him. Therefore, Williams fired Watkins as her attorney.

On March 10, 1997, Williams retained attorney George Lewis to write Watkins advising him of his discharge and requesting copies of her files. On October 5, 1997, Williams sued Watkins for, inter alia, repayment of the loans and professional negligence. With regard to the professional negligence claim, Lewis obtained an affidavit from attorney Thomas Tucker in which he addressed both the impropriety of the stock transfer to Williams and the reasonableness of Watkins’ fees.

On April 27, 1998, Watkins filed suit against attorneys Lewis and Tucker, Melvin and Brenda Colbert and the Calvary Deliverance Evangelistic Church, Inc., alleging that these defendants

maliciously and wrongfully, and with the intent to injure, conspired to injure, and did injure the business of [Watkins] by interfering with the twenty (20) year business relationship [Watkins] had with [Williams], by causing [Williams], whom defendants knew was being represented by [Watkins] during 1996 and 1997 to transfer five (5) acres of land to defendant Calvary Deliverance Evangelistic Church, Inc. for the sum of $15,000.00 per acre when [Watkins] had informed defendants Melvin J. Colbert and Calvary Deliverance Evangelistic Church, Inc. that an offer of $50,000.00 or more had been given to [Williams], [Watkins’] client, and caused [Williams] to terminate her business relationship with [Watkins].

The trial court granted defendants’ motion for summary judgment and this appeal followed. To recover under a theory of tortious interference with business relations, Watkins must demonstrate financial injury and must show that defendants: (1) acted improperly and without privilege; (2) acted purposely and with malice with intent to injure; and (3) induced a third party or parties not to enter into or continue a business relationship with him. La Petite Academy v. Prescott, 234 Ga. App. 32, 33 (1) (506 SE2d 183) (1998). In this case, the trial court properly granted defendants’ motion for summary judgment because there is no evidence upon which to base an action for tortious interference against any of the defendants.

As an initial matter, we note that a special, fiduciary relationship exists between a lawyer and client. AFLAC, Inc. v. Williams, 264 Ga. 351, 353 (1) (444 SE2d 314) (1994). Accordingly, the Supreme Court has recognized that “a client has the absolute right to discharge the attorney and terminate the relation at any time, even without cause. A client’s discharge of [her] attorney is not a breach of the contract of employment, but the exercise of [her] right.” (Citation and punctuation omitted.) Id. Nevertheless, if a third party maliciously interferes with the relationship between an attorney and client, thus inducing the client to sever the relationship, the attorney may have a cause of action against that third party for tortious interference. See Gilbert v. Jones, 187 Ga. App. 303, 304 (1) (370 SE2d 155) (1988); Steele v. Cincinnati Ins. Co., 171 Ga. App. 499, 500 (2) (320 SE2d 203) (1984). “The term ‘maliciously’ means any unauthorized interference or any interference without legal justification or excuse.” (Punctuation omitted.) Gilbert, supra at 304.

Here, Watkins implies that the Colberts influenced Williams to terminate the attorney-client relationship by giving her bad advice regarding the value of her land, thus making her question her attorney’s advice. However, with the exception of purchasing Williams’ land, Watkins provides no evidence of any actions taken by the Colberts to induce Williams to fire her attorney. Watkins essentially asks this Court to infer that the Colberts somehow persuaded Williams to terminate Watkins. This inference Watkins asks us to draw is based on sheer speculation, and it is well-settled that “[g]uesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.” (Punctuation omitted.) Taylor v. N. I. L., Inc., 221 Ga. App. 99, 100 (470 SE2d 491) (1996); see also Greene v. Jenkins, 224 Ga. App. 640, 644 (2) (481 SE2d 617) (1997); Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996). Moreover, in Williams’ affidavit, she asserts that the Colberts did not influence her decision to terminate Watkins. Accordingly, in the face of such unequivocal direct evidence, we find no error in the trial court’s grant of summary judgment in favor of the Colberts and the church. Steele, supra.

With respect to attorneys Lewis and Tucker, there is not one shred of evidence in the record before us indicating that Williams either knew or had any contact with either of these attorneys prior to her decision to terminate Watkins. To the contrary, Williams states that she hired Lewis for the express purpose of terminating Watkins and that, at the time she completed her affidavit, she had never spoken to Tucker. Thus, there is no evidence that either of these two attorneys caused Williams to terminate Watkins. Finally, we note that for public policy purposes, a tortious interference claim will not lie against “an attorney who on behalf of a client asserts or prosecutes a claim arising from contractual rights and duties.” Hyre v. Denise, 214 Ga. App. 552, 555 (7) (449 SE2d 120) (1994); Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 608 (2) (503 SE2d 278) (1998). Both Lewis and Tucker were instrumental in prosecuting Williams’ claims against her former attorney. Accordingly, the trial court did not err in granting summary judgment in favor of defendants Lewis and Tucker.

Decided April 13,1999

Reconsideration denied April 28,1999.

Watkins & Watkins, John D. Watkins, for appellants.

Kilpatrick Stockton, Ted H. Clarkson, Mark B. Williamson, Hull, Towill, Norman & Barrett, David E. Hudson, for appellees.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       Watkins admits that Williams never told him the name of the person who offered $50,000 per acre for the land and there is no evidence that this offer remains outstanding.

       We do not address the impropriety of Watkins’ actions in transferring stock in his law firm to a layperson as these actions do not serve as the underlying basis of this appeal.


author: Beasley, Presiding Judge.

text:
    A99A0732.
    JAMAL et al. v. HUSSEIN et al.
    (515 SE2d 407)
   Beasley, Presiding Judge.

For the second time, Karim Jamal and Impulse International, Inc. appeal a grant of partial summary judgment on some of their claims arising out of pursuit of a convenience store business incorporated as Ark International, Inc. Jamal v. Pirani, 227 Ga. App. 713 (490 SE2d 140) (1997) (“Jamal F), which set out the basic facts, affirmed partial summary judgment of Jamal’s claims against Arif Hussein and Raees Pirani for breach of partnership agreement and usurpation of corporate opportunities. Before us for review is a later order granting another motion for partial summary judgment as to the remaining claims against the individual defendants and Ark, except for Jamal’s claim against Ark for repayment of a loan: (1) Jamal’s claim against all defendants for repayment of his initial loans; (2) Jamal’s claim for a share of Ark’s profit; (3) Jamal’s claim of fraud/conversion against all defendants for diverting to their own use his loan repayments and profit; (4) Jamal’s and Impulse’s claim for attorney fees; and (5) Jamal’s and Impulse’s claim for punitive damages.

Construing the facts important to this appeal in favor of appellants Jamal and Impulse shows that Jamal approached Pirani about purchasing J’s One Stop, a convenience store and gas station, and Pirani proposed that Hussein be brought in to manage the business. Pirani negotiated a price with the owner while Jamal reserved the name Ark International, Inc. with the Secretary of State. Jamal then borrowed approximately $30,000 against his personal credit cards and deposited the money in an account set up in the name Ark International, Inc. Two or three days later the deal closed. Jamal made additional loans to Ark to fund the purchase of a second store on about November 22. Ark was incorporated December 29, 1993, as provided by OCGA § 14-2-203 (a), when its articles of incorporation were filed.

1. Relying on OCGA § 14-2-204 and Echols v. Vienna Sausage Mfg. Co., Jamal contends that although he loaned the money to Ark and there were no personal guarantees, Hussein and Pirani are liable for Ark’s pre-incorporation debts. OCGA § 14-2-204 states: “All persons purporting to act as or on behalf of a corporation, knowing there was no incorporation under this chapter, are jointly and severally liable for all liabilities created while so acting.” The trial court ruled that OCGA § 14-2-204 does not apply where the claimant also knows the corporation does not exist at the time of the transaction, and that without personal guarantees and because the corporation replaced the partnership the individuals cannot be liable for the loan as a matter of law. OCGA § 14-2-204 indeed does not apply, but the remainder of the court’s decision on this issue is problematic.

At the time of the loans there was no corporation and all three men knew it. Prior to incorporation the entity “ ‘could do no corporate act, could receive no corporate property, could incur no corporate liability, and against it no corporate judgment could be legally rendered.’ [Cit.]” Rather, whether they understood it legally or not, the three men were in partnership pending incorporation of their business.

“A partnership is an association of two or more persons to carry on as co-owners a business for profit.” Hussein testified the agreement between the parties was that the three would be equal partners and the partnership would eventually take the form of a corporation. Pirani testified there was a verbal agreement that the three would “go into business together” and would form a corporation where each would own one-third of the stock “for profit, for loss, or for nothing.” Jamal testified that in their initial discussion about the business “it was understood between all three of us that all three of us would be one-third partners.”

Jamal’s testimony later in his deposition, that at the time of the initial conversation he intended the company to be a corporation and not a partnership, does not control. Partnership is a mixed question of fact and law, and Jamal’s answer could be seen as a reference to the partners’ agreement to incorporate eventually.

One term of the partners’ oral partnership agreement provided they would soon form a corporation in which each partner would become an equal shareholder. Eventually, the “oral partnership terminated as a matter of law when Jamal, Hussein, and Pirani incorporated their business and began operating their venture under the corporate form.” Against this backdrop it is clear that although Jamal stated he loaned the money to “Ark,” he could not have loaned the money to a corporation not yet formed. The loan was to the partnership, which makes OCGA § 14-2-204 inapplicable.

The two fellow founders of Ark were not “purporting to act as or on behalf of” the yet-to-be-formed corporation relative to Jamal. Jamal knew Ark was not yet incorporated. He was not misled by Pirani and Hussein into believing they represented a corporation that did not exist; they all had equal knowledge of the state of affairs. In fact, it was Jamal who took the lead in reserving the name Ark International, Inc. and in establishing a bank account in that name. There is no indication Jamal believed Ark had been incorporated when he made the loans or that either Hussein or Pirani was responsible for incorporating Ark.

Distinguishable are cases addressing nonexistent corporations and application of either OCGA § 14-2-204 or the former law, i.e., former § 14-2-23 and the common law “promoter’s liability.” In them the aggrieved party was a third party ignorant of the fact there was no corporation, not a partner with equal knowledge of that fact.

The corporation Ark International, Inc. took over the business of running the convenience stores. The terms of the transfer are not clear from the record. For instance, the three individuals signed leases for the land occupied by the stores, and that has not changed. The leases apparently were never transferred to the corporation after it was formed. Such an arrangement is up to the parties; a corporation succeeding a partnership is not always liable for the debts of the partnership. The decision in Jamal I is not inconsistent. Division 1 of Jamal I addressed whether the three continued to owe each other partnership duties after incorporation. Here we address whether a certain liability remained with the partnership.

The issue now is whether the partnership agreement provided that the corporation would assume liability for repayment of the loans, or similarly, whether the partnership transferred that liability to the corporation when the corporation was formed. If not, then the partnership is liable for repayment of the loan.

In Jones v. J. S. H. Co. a dispute arose among three people who had been partners in an enterprise which was subsequently incorporated. Long after incorporation, two of the three original shareholders and the corporation sued the third original shareholder, who operated the business, and his wife for an accounting and money judgment arising out of various transactions for which no accounting had been made. The defendants sought to establish certain credits which arose out of the earlier partnership, such as a claim for commissions on pre-incorporation sales.* The issue was whether the corporation assumed all debts of the prior partnership. The Supreme Court reversed the auditor’s denial of these credits, reasoning: “in the absence of any understanding to the contrary, it would be presumed that such a new and solvent organization [(i.e., the corporation)] would be answerable for such claims as the previous partnership might have owed to its own members.”

Here there is evidence of an understanding to the contrary. First, the record contains scant details of any agreement regarding transfer of assets and liabilities to the corporation. Pirani was asked what the arrangement was regarding the loan, to which he replied, “we were supposed to pay [Jamal] back.” But the fact that the leases were never transferred is some evidence that not all assets and liabilities moved over the bridge. Given the treatment of the leases and the conflicting testimony of whether the partners were to be liable for repayment of Jamal’s loans, an issue of fact remains for trial. The jury must decide whether the parties’ agreement included that the liability associated with the loan was to be transferred to the corporation or remain with the partnership.

Carnes v. McNeal is not on point because the plaintiff made the contribution after incorporation. He sought return of money contributed to a business commenced as a partnership and later incorporated. The court held the partnership terminated upon incorporation and the plaintiff had no claim under the partnership agreement for return of the money.

2. Jamal claims the individuals should also be liable for repayment of the loans because after incorporation Hussein and Pirani so commingled Ark’s assets with their own or another corporation’s that Jamal should be allowed to pierce Ark’s corporate veil. Division 1 does not moot this issue because Ark may have assumed liability for the loans.

The trial court ruled that Jamal failed to make specific citation to the record to show facts sufficient to send this issue to the jury. Although Jamal cited no facts on piercing the corporate veil in the subsection of his brief in response to the motion, he cited testimony in his statement of facts and in his response to defendants’ statement of material issues not in dispute. That evidence, together with the deposition of Ark’s accountant, constitutes a sufficient base to create an issue of fact with regard to the issue.

Courts permit “piercing the corporate veil” in situations where the parties involved have themselves disregarded the separateness of legal entities by a commingling and confusion of properties, records, control, etc. Under such circumstances, the court may disregard the corporate entity.

The record reveals no shareholders or directors meetings and shows that no stock was issued. Hussein testified that there may have been “transfers” of merchandise between stores owned by Ark and other stores owned by Pirani. Hussein and Pirani received significant cash from the corporation, but there is no record of these payments. Ark’s accountant admitted his records do not indicate how much money was distributed by Ark to Hussein or Pirani other than payroll. Nor do the records show cash transactions. The accountant testified that unless a payment was made by check he did not account for cash disbursements. The accountant has not been able to file corporate tax returns for Ark because Hussein and Pirani have given him insufficient information. The accounting records are silent as to how much money was loaned to Jamal.

This evidence leaves unresolved whether Hussein and Pirani failed to accurately account for cash disbursements from Ark, how much cash the two have taken and what rightfully belongs to Ark. All in all, defendants have not foreclosed a piercing of the corporate veil that would allow recovery of loan payments directly from Hussein and Pirani.

On the one hand, we are mindful that great caution should be exercised by the court in disregarding the corporate entity. On the other, it is axiomatic that when litigated, the issue of “piercing the corporate veil” is for the jury unless there is no evidence sufficient to justify disregarding the corporate form.

Summary judgment on this issue was error.

3. Jamal asserts the court applied the wrong standard when eliminating his claim that Hussein and Pirani converted his loan repayments or profit distribution to their own use. He also urges error in failing to recognize self-contradictory testimony in Hussein’s and Pirani’s depositions which create issues of fact on this claim. Summary judgment was not proper. A corporate officer may be held liable for torts he personally committed or specifically directed be done.

Any distinct act of dominion wrongfully asserted over another’s property in denial of his right, or inconsistent with it, is a conversion. It is unnecessary to show that the defendant applied it to his own use, if he exercised dominion over it in defiance of the owner’s right, or in a manner inconsistent with it. It is in law a conversion whether it be for his own or any other’s use. [Cit.]

Decided March 31,1999

Reconsideration denied April 28,1999

The same evidence which leaves open a piercing of the corporate veil, together with the unresolved question of who, if anyone, owes Jamal for his loans, creates an issue of fact as to conversion.

If the partnership is liable for repayment of the loans, or if Ark’s corporate veil can be pierced, then the individuals may be liable for the loans or for converting Jamal’s loan repayments. If Ark is liable for the loans and the veil is not pierced, then Ark may be liable on a claim of breach of contract. Then again, even if Ark is responsible for repayment of the loans, there may not have been sufficient operating revenue to repay the loans. There is no evidence of the loan repayment terms. Payments may not be due. Other creditors may have had superior positions to Jamal. With regard to profit distributions, there is no indication how profits were to be determined and when profits were to be distributed. If the conclusion is that Ark did not have a present obligation to repay the loans or distribute profit, then any conversion claim belongs to Ark and not to Jamal.

We also reverse the grant of summary judgment on Jamal’s claims for punitive damages and attorney fees, which was granted solely for the reason that the above claims had been eliminated.

4. Finally, Impulse contends the trial court improperly ruled that it failed to preserve its claim of breach of contract against Ark. In the section of the pre-trial order in which plaintiffs listed the issues to be decided by the jury there is no mention of Impulse’s claim. The trial court did not abuse its discretion in eliminating the claim despite references to such a claim elsewhere in the pre-trial order.

5. This decision is based on the record submitted to us and because we rule in appellants’ favor, their motion to supplement the record on appeal is moot.

Judgment affirmed in part and reversed in part.

Blackburn and Barnes, JJ., concur.

McLarty, Robinson & Van Voorhies, John E. Robinson, for appellants.

Allen W. Bodiford, Martin C. Jones, for appellees.

       162 Ga. App. 158 (290 SE2d 484) (1982).

        Michael Bros. Co. v. Davidson & Coleman, 3 Ga. App. 752, 754 (60 SE 362) (1908).

       OCGA § 14-8-6.

        Pope v. Triangle Chem. Co., 157 Ga. App. 386, 388 (3) (a) (277 SE2d 758) (1981).

        Jamal v. Pirani, supra, 227 Ga. App. at 714 (1).

       See Weir v. Kirby Constr. Co., 213 Ga. App. 832, 834 (1) (446 SE2d 186) (1994) (former § 14-2-23 and the common law “promoter’s liability” were in essence the same theory of liability). See also Wells v. Fay & Egan Co., 143 Ga. 732, hn. 1 (85 SE 873) (1915) (promoter’s liability means that a person acting on behalf of a corporation not yet in existence will be personally liable on his contracts, “unless the other party agreed to look to some other person or fund for payment”).

       See, e.g., Zuberi v. Gimbert, 230 Ga. App. 471,473 (1) (496 SE2d 741) (1998) (Gimberts believed they were dealing with a corporation); Weir v. Kirby Constr. Co., supra (plaintiff contracted with corporation); Video Power v. First Capital Income Properties, 188 Ga. App. 691, 692 (373 SE2d 855) (1988) (defendant signed lease in his representative capacity as president of nonexistent corporation); Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 795 (3) (359 SE2d 920) (1987) (party enforcing contract thought it was dealing solely with corporation); Don Swann Sales Corp. v. Echols, 160 Ga. App. 539, 541 (287 SE2d 577) (1981) (parties thought the corporation had been registered); Wiggins v. Darrah, 135 Ga. App. 509 (218 SE2d 106) (1975) (complainant entered into contract with what appeared to be a corporation).

       See Dickson-Carroll Co. v. U. S. Fidelity &c. Co., 58 Ga. App. 540 (2) (199 SE 322) (1938) (“[w]here a partnership is succeeded by a corporation, the corporation is not liable for the debts of the partnership not assumed in a manner recognized by law”).

        Jamal v. Pirani, supra, 227 Ga. App. at 714 (1).

       199 Ga. 755 (35 SE2d 288) (1945).

       Id. at 761, 770 (2).

       Id. at 770 (2).

       224 Ga. App. 88 (479 SE2d 474) (1996).

        Casey v. Carrollton Ford Co., 152 Ga. App. 105, 106 (262 SE2d 255) (1979).

       Jamal claims that Pirani admitted commingling Ark’s assets with other businesses. But the cited testimony shows only possible commingling between the two stores owned by Ark, a non-issue in this case.

       See Pope v. Professional Funding Corp., 221 Ga. App. 552, 553 (1) (472 SE2d 116) (1996) (president admitted he, another officer and shareholder transferred funds among their businesses without regard to corporate formalities); Unified Svcs. v. Home Ins. Co., 218 Ga. App. 85, 90 (5) (460 SE2d 545) (1995) (defendants transferred assets, without compensation, to different corporation; wrote off debts to benefit themselves; withdrew money from company at will in lieu of salary; and borrowed money from company without paying interest); McLean v. Continental Wingate Co., 212 Ga. App. 356, 359-360 (2) (442 SE2d 276) (1994) (defendant used corporate assets to purchase personal property, including realty, for himself and for family members, which did not benefit the corporation); Abbott Foods of Ga. v. Elberton Poultry Co., 173 Ga. App. 672, 673 (1) (327 SE2d 751) (1985) (person who was president, principal shareholder and only employee took loans and salary advances without board approval and engaged in other self-serving transactions).

       (Citations and punctuation omitted.) J-Mart Jewelry Outlets v. Standard Design, 218 Ga. App. 459, 460 (1) (462 SE2d 406) (1995).

       (Punctuation omitted.) Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (1) (356 SE2d 877) (1987).

        Smith v. Hawks, 182 Ga. App. 379, 385 (355 SE2d 669) (1987).


text:
    A97A1952.
    HARWELL v. THE STATE.
    (516 SE2d 835)
    Decided April 28,1999.

      Hagler, Hyles, Adams & McKenna, Clark C. Adams, Jr., for appellant.

      J. Gray Conger, District Attorney, Margaret E. Bagley, Assistant District Attorney, for appellee.
   Judge Harold R. Banke.

The judgment of this Court in this case at Harwell v. State, 231 Ga. App. 154 (497 SE2d 672) (1998), has been affirmed in part and reversed in part by the Supreme Court after grant of certiorari. Therefore, insofar as it is inconsistent with the judgment of the Supreme Court in Harwell v. State, 270 Ga. 765 (512 SE2d 892) (1999), we vacate our earlier judgment and adopt the judgment of the Supreme Court.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Pope, P. J., Andrews, Smith, Ruffin and Eldridge, JJ, concur.

       The original case cited at 231 Ga. App. 154 was authored by Judge Dorothy T. Beasley. Judge Beasley has since resigned from this Court effective April 1,1999.


author: Barnes, Judge.

text:
    A99A0024.
    EDGERTON v. THE STATE.
    (516 SE2d 830)
   Barnes, Judge.

After marijuana and cocaine were found during a search of his car, Joseph Limuel Edgerton was indicted for possession of more than an ounce of marijuana and possession of more than twenty-eight grams of a mixture with a purity of more than ten percent cocaine. Later, he filed a motion to suppress evidence of the drugs contending they were seized during an illegal search. When this motion was denied, Edgerton waived his right to a jury trial and during a bench trial stipulated to sufficient facts for the trial court to find him guilty of the offenses for which he was indicted.

Based upon the evidence presented during the hearing on Edger-ton’s motion to suppress, the trial court found that the officers had probable cause to search Edgerton’s car under the totality of the circumstances, including the information provided by the informant and the existing, exigent circumstances. On appeal Edgerton contends the trial court erred by refusing to suppress the marijuana and cocaine seized during an illegal search. We disagree and affirm.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.
Second, the trial court’s decision with regard to the questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). Nevertheless when, as in this case, the evidence concerning a motion to suppress is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

Viewed in the light most favorable to the trial court’s findings and judgment, the evidence shows an informant told a Fayette County Deputy Sheriff that Joe, a black male, would be driving a dark blue Ford Escort with five-spoke wheel rims, tinted windows, and a dark license tag cover into Clayton County on Georgia Highway 85 from Clark Howell Road at approximately 6:00 p.m. to 6:30 p.m. that day, going to Laurel Park Apartments. The informant further stated the driver would be armed and in possession of a large amount of cocaine and that he saw Edgerton with drugs at an earlier time.

The deputy testified that this informant had never provided any information in the past, was a suspect in a criminal investigation, and the deputy knew him in connection with that arrest and had interviewed him before. The Fayette County deputy reported this information to the Sheriff’s Department of Clayton County, and it was the basis for the traffic stop.

A Clayton County Deputy Sheriff testified that he was called by the county narcotics undercover unit to stop the car for them and that he was given certain information about the car he was to pull over. He was told the subject’s name, the type of vehicle he would be driving, and the tag number. He was also told that the driver would be transporting narcotics down Highway 85 toward the Riverdale area and had been armed in the past. The car would be a blue Ford Escort with fancy rims and tires.

After the deputy was alerted by an undercover lookout that the car was headed in his direction, the vehicle passed him and he pulled it over. He then asked the driver, identified as Edgerton, for his consent to search the car, but was refused. Edgerton denied having narcotics or a gun in the car, but later admitted to having a gun in the car.

Later, another deputy arrived and searched Edgerton’s car. He found a pistol and cocaine in the passenger compartment; a more thorough search revealed more cocaine and a large amount of marijuana.

We agree with the trial court that the information provided and upon which the officer acted when stopping Edgerton was sufficient to provide probable cause to search Edgerton’s car. Information from a known informant of unknown reliability has more indicia of reliability than an anonymous tip (State v. Jarrells, 207 Ga. App. 192 (2) (427 SE2d 568) (1993)), and although information regarding the reliability of the informant is highly relevant, the absence of such information is not fatal. Munson v. State, 211 Ga. App. 80, 82 (438 SE2d 123) (1993). Even when information about an informant’s veracity or basis of knowledge cannot be provided, a tip may be reliable enough if it is sufficiently corroborated. Langford v. State, 213 Ga. App. 232, 234 (1) (444 SE2d 153) (1994). In this instance the information provided to and corroborated by the deputy was very detailed and included information that was not available to the general public, such as the route and time of travel. See State v. Bryant, 210 Ga. App. 319, 321 (436 SE2d 57) (1993).

Under the totality of the circumstances of this case, we find the information available to the deputies was sufficient to provide probable cause to search Edgerton’s car.

While an informant’s veracity, reliability, and basis of knowledge are highly relevant in determining the value of his report, these elements are not entirely separate and independent requirements to be rigidly exacted in every case. Rather, they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place.

Decided April 28,1999.

Steven M. Frey, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

For probable cause to search a person without a warrant, we must look to the parameters of police knowledge at the time the search occurred to determine if that knowledge was such as would justify a man of reasonable caution in believing that an offense has been or is being committed, and this requires merely a probability — less than a certainty but more than a mere suspicion or possibility. The reviewing court must determine under the totality of the circumstances whether the evidence in this case showed a fair probability that contraband or evidence of a crime would be found in a particular place.

(Citation and punctuation omitted.) Brooks v. State, 208 Ga. App. 680, 681 (1) (431 SE2d 466) (1993).

Accordingly, the trial court did not err by denying Edgerton’s motion to suppress and allowing the drugs to be introduced in evidence.

Judgment affirmed.

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


author: Johnson, Chief Judge.

text:
    A99A0290.
    THE STATE v. WESSON.
    (516 SE2d 826)
   Johnson, Chief Judge.

Charles Wesson was charged with possession of marijuana, manufacture of marijuana, and possession of marijuana with intent to distribute. The trial court granted Wesson’s motion to suppress evidence seized during a search of his home. The state appeals from that ruling. We affirm.

A narcotics agent applied for a warrant to search Wesson’s home. In his affidavit in support of the warrant, the agent provided the following relevant information: a confidential informant, who had previously supplied police with information resulting in a drug arrest, assisted agents in making a controlled buy of marijuana from a suspect (“the seller”); police obtained and executed a warrant to search the seller’s home, where they found marijuana and records showing Wesson’s phone number and a dollar amount; the confidential informant told officers that the seller provided Wesson with marijuana; and the seller told officers he had sold marijuana to Wesson within the past 24 hours. At the suppression hearing the agent testified that he provided the magistrate with oral testimony as well. When asked what that oral testimony was, the agent responded that he advised the magistrate about “complaints from [the sheriff],” but did not elaborate. And when asked if he included anything about such complaints in a written summary of his oral testimony provided to the district attorney, the agent admitted he did not. The agent did not give any other oral testimony in support of the warrant application.

Wesson moved to suppress evidence seized from his residence, complaining that the warrant was issued based on the seller’s tip when his reliability and credibility had not been established. At the suppression hearing, the agent admitted that the seller was not a reliable informant and that he had not received information from the seller before. The agent could not recall what was on the paper which, according to his affidavit, reportedly showed Wesson’s phone number and a dollar amount; he did not have the paper with him at the hearing. Without giving its reason therefor, the trial court granted the motion to suppress.

In its sole enumeration of error, the state contends this ruling was erroneous because the seller established his reliability by telling police that he sold marijuana to Wesson, which was a statement against his own interest. Alternatively, the state argues that even if the seller’s statement did not establish probable cause, probable cause was established when that statement was combined with other information provided to the issuing magistrate, namely the paper purportedly showing Wesson’s phone number and a dollar amount and the reliable confidential informant’s statement that the seller provided drugs to Wesson.

Our responsibility in reviewing a trial court’s ruling on a motion to suppress is to ensure that there was a substantial basis for the decision; we construe the evidence most favorably to uphold the findings and judgment of the trial court. Gonzalez v. State, 235 Ga. App. 253 (509 SE2d 144) (1998).

An affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant. State v. Bryant, 210 Ga. App. 319, 320 (436 SE2d 57) (1993). In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we consider the totality of the circumstances. Wood v. State, 214 Ga. App. 848, 849 (1) (449 SE2d 308) (1994). In cases such as this one, where there are two informants, a deficiency created by the fact that the reliability of either source has not been established can be corrected by the corroboration of the information, thereby providing a substantial basis for finding probable cause. Id. However, in the case before us, the affidavit does not set forth sufficient facts from which the issuing magistrate could have determined that the information and the informants were reliable.The unnamed seller’s statement that he sold drugs to Wesson did not establish probable cause. At the hearing, the agent testified that the seller was not known to be reliable. Contrary to the state’s arguments, his tip was not made inherently reliable by either the fact that the information provided was against his interest or by corroboration.

When a named informant makes a declaration against his interest and based on personal observation, that in itself provides a substantial basis for the magistrate to credit his statement. See Sosebee v. State, 227 Ga. App. 21, 23 (488 SE2d 102) (1997). The seller’s statement was clearly made against his own interest. However, as the state concedes, that principle of law applies to named informants, i.e., those informants whose identities have been disclosed to the magistrate. See id.; Williams v. State, 256 Ga. 609, 610 (1) (351 SE2d 454) (1987); Victrum v. State, 203 Ga. App. 377, 379 (2) (416 SE2d 740) (1992); Midura v. State, 183 Ga. App. 523, 525 (4) (359 SE2d 416) (1987); Aldridge v. State, 153 Ga. App. 744 (1) (266 SE2d 513) (1980). And, as the state further concedes, the seller in this case was not a named informant. Compare Hardy v. State, 162 Ga. App. 797, 798 (2) (292 SE2d 902) (1982) (officer provided magistrate with oral testimony identifying informant who was unnamed in affidavit). We are not inclined to extend the “statement against interest” rule to encompass uncorroborated statements made by unnamed informants whose reliability has not been established. See Polke v. State, 203 Ga. App. 306, 308 (1) (417 SE2d 22) (1992).

Even if an officer cannot provide information regarding the veracity of an informant or the basis of his knowledge, a tip may be proved reliable if portions of the tip are sufficiently corroborated. Langford v. State, 213 Ga. App. 232, 234 (1) (444 SE2d 153) (1994); see VonLinsowe v. State, 213 Ga. App. 619, 621 (1) (445 SE2d 371) (1994). For the corroboration to be meaningful, the information corroborated must include a range of details relating to future actions of third parties not easily predicted, not to easily obtained current facts. See Bryant, supra at 321.

In this case, the confidential informant’s tip that the seller provided Wesson with drugs does not corroborate the seller’s tip. The confidential informant may have been reliable, but his information in this case was not. The tip contained no details or predictive information whatsoever. Moreover, there has been no showing that the confidential informant’s tip was based on personal knowledge. Therefore, the tip is relegated to the status of a casual rumor. See Caswell v. State, 219 Ga. App. 787, 788 (466 SE2d 907) (1996). Mere rumors of criminal activity do not establish probable cause. See Polke, supra.

Decided April 28,1999.

Herbert E. Franklin, Jr., District Attorney, Bruce E. Roberts, Assistant District Attorney, for appellant.

Kenneth D. Bruce, Carlton H. Vines, for appellee.

Furthermore, the record found in the seller’s home reportedly showing Wesson’s phone number and a dollar amount does not corroborate the unnamed seller’s statement. Assuming, arguendo, such a record is evidence of a drug sale, the agent testifying did not have the record at the hearing and was unable to testify with any certainty as to what was written on it. This purported record, coupled with the confidential informant’s tip, was not enough to salvage the unnamed seller’s information.

Appellate courts have consistently recognized the value of corroborating the details of a tip by independent police work. See Wood, supra; Burgess v. State, 232 Ga. App. 441, 444 (1) (502 SE2d 303) (1998). The police in this case failed to independently investigate the seller’s tip in order to corroborate the information. Wood, supra. Considering the totality of the circumstances, and viewing the evidence so as to uphold the ruling of the trial court, we conclude that the magistrate did not have a substantial basis for concluding that probable cause existed. See Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992). The trial court did not err in granting Wesson’s motion to suppress.

Judgment affirmed.

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


text:
    A99A0307.
    HILLARY et al. v. BURRELL.
    (516 SE2d 836)
   Judge Harold R. Banke.

Evernezer and Valerie Hillary brought a personal injury action against Jeffrey Burrell whose vehicle rear-ended theirs. Enumerating four errors, the Hillarys contest the verdict directed in favor of Burrell.

The underlying case arose after Burrell’s Volvo struck the rear of the Hillarys’ vehicle. Evernezer Hillary testified that he brought his vehicle to a complete stop before exiting from the driveway of a church in mid-morning. After looking to his left, right, and left again, he then proceeded to make a right turn. According to Hillary, a traffic light at the top of the hill to his left, approximately 200 feet away, was red for traffic advancing in his intended direction. Hillary testified that there was no blind spot between him and the traffic signal. After observing no oncoming traffic, Hillary made a right turn into the extreme right lane of a four-lane road which had a center turn lane. After proceeding about 50 feet, the Hillarys were suddenly rear-ended by Burrell. Hillary testified that he felt the impact before hearing the squeal of Burrell’s tires. By Hillary’s calculation, in order for Burrell to have covered the distance between them of 250 feet, Burrell needed to “come over that hill running fifty-five or sixty miles an hour... . .” According to Hillary, Burrell “was really in a hurry,” and “come [sic] over the hill speeding.”

Valerie Hillary attested that she also looked in both directions to make certain it was safe to proceed. Before they were hit, she did not hear the blare from a horn or the squeal of brakes. She testified, without contradiction, that the speed limit was at most 45 mph. Photographs entered into evidence showed that the Hillarys’ Camaro sustained serious damage to the left rear bumper, left rear lights, and some additional damage to the left rear quarter panel.

Prior to presenting any defense, Burrell moved for a directed verdict. Notwithstanding the trial court’s determination that the evidence established that the plaintiffs were struck from the rear by Burrell’s vehicle, the court found that the Hillarys failed to offer any evidence of Burrell’s negligence. The court concluded,

[i]n the absence of any testimony regarding the actual speed at which the Defendant was traveling or an observation of what that speed was, there is not enough information for a finder of fact to make the determination as to which party was negligent, and negligence cannot be presumed or inferred.

Finding no affirmative proof of Burrell’s negligence, the trial court directed a defense verdict. Held:

1. The Hillarys contend that the trial court erred in granting Burrell’s motion for directed verdict at the close of their case because disputed issues of negligence and proximate cause required jury resolution.

A directed verdict is proper only where there is no conflict in the evidence on any material issue, and the evidence, with all reasonable deductions construed in favor of the non-movant, demands a particular verdict. OCGA § 9-11-50 (a). Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1) (416 SE2d 807) (1992). A verdict cannot be directed unless there is “no evidence of any kind supporting [the non-movant’s] position.” (Emphasis in original.) Jenkins v. Gulf States Mtg. Co., 138 Ga. App. 835, 837 (227 SE2d 522) (1976).

Decided April 28,1999.

Thomas L. Murphy, for appellants.

Twanda Turner-Hawkins, for appellee.

As a general rule, in rear-end collision cases like this one,

the liability, degree of liability, or lack of liability on the part of any involved driver depends upon a factual resolution of the issues of diligence, negligence, and proximate cause [and] these issues should be resolved[ ] by the jury and not by trial and appellate judges.

(Punctuation omitted.) Jenkins v. Lampkin, 145 Ga. App. 746, 748 (1) (244 SE2d 895) (1978). Under similar facts in Wallace v. Willis, 111 Ga. App. 576, 578 (2) (142 SE2d 383) (1965), where the plaintiff was abruptly rear-ended by the defendant’s automobile after the plaintiff observed no oncoming traffic, completed her turn, and was proceeding down a road, this Court held that the cause of that collision “was clearly a jury question as to what act or omission constituted the proximate cause of the plaintiff’s injuries and damages.” Id. at 580.

Although the jury might ultimately have found for Burrell, when all the evidence is construed more favorably toward the Hillarys, the evidence did not demand that result. See Wallace, 111 Ga. App. at 580; Barber v. Atlas Concrete Pools, 155 Ga. App. 118, 119 (2) (270 SE2d 471) (1980) (trial court is not authorized to weigh the evidence or to decide issues of fact). Instead of permitting the jury to infer from the evidence that Burrell was speeding at the time of the collision, or that Burrell was following too closely, or that Burrell had been inattentive and failed to exercise reasonable care in operating his vehicle, the trial court improperly cast the evidence and all possible inferences against the Hillarys. See id. at 118 (1). Because the evidence did not demand the verdict directed, we reverse. See Jenkins, 145 Ga. App. at 748; compare Aldridge v. Dixie Fire & Cas. Co., 223 Ga. 130, 133 (1) (153 SE2d 723) (1967).

2. In light of our holding in Division 1, we need not reach the remaining enumerations of error.

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A99A0317, A99A0318.
    GOODMAN v. THE STATE (two cases).
    (516 SE2d 824)
   Ruffin, Judge.

A Spalding County jury convicted Tony Goodman of aggravated assault, possession of cocaine with intent to distribute, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a crime. Although his convictions arose from the same trial, Goodman filed two separate appeals. In both appeals, Goodman contends the evidence was insufficient to support his convictions for aggravated assault and possession of cocaine with intent to distribute. We affirm.

Viewed in the light most favorable to support the verdicts, the evidence reveals that at about 1:00 a.m. on July 1, 1995, Tony Goodman and his brother Steve left Steve’s hotel room at the Scottish Inn, where the two had spent the evening drinking, and drove back to Tony’s house. As they neared the house, Tony immediately began cursing at his girlfriend, Jackie Johnson, who was sitting on the front porch. At the time, Jackie was living with Tony.

Tony, who uses a wheelchair, needed help getting out of his Cadillac. As Steve helped Tony transfer into his wheelchair, he saw Tony retrieve a 9mm pistol from the glove box, put it on the seat of his wheelchair, and sit on top of it. Steve then wheeled Tony to the front porch as the argument between Tony and Jackie became more heated. When Tony reached the porch, Jackie hit him with a folding lounge chair. Tony then fired his pistol at Jackie, but missed. Jackie ran inside the house, locked the door, and called 911. Steve, at Tony’s request, kicked the door open so that Tony could wheel himself in after Jackie. Tony followed Jackie to the bedroom, pulled the phone from the wall, lunged out of his wheelchair at Jackie, and began beating her with the pistol. After watching the fight for a minute, Steve took the gun from Tony and placed it in another room just moments before the police arrived.

The responding officers found Tony and Jackie on the floor, wedged between the bed and the bedroom wall, fighting. The officers testified that Jackie was cut and bruised and her blood was splattered on the wall and floor. Steve showed the officers the pistol. The pistol, which had a spent cartridge jammed in the chamber, smelled of freshly ignited gun powder. An upset and angry Jackie told the officers that Tony was a drug dealer and showed the officers where he had stashed his cocaine. The officers found a brown paper bag containing 22 pieces of what tested positive for crack cocaine concealed behind a water heater located near the bedroom.

Jackie testified that Tony threw the drugs behind the water heater during the assault because he knew she had called 911 and that the police were coming. Steve testified that the drugs were not his, that Tony sold drugs, and that the house belonged to Tony. In a later search of the residence, police found five more pieces of crack cocaine and paraphernalia for cutting and packaging cocaine hidden in a paint roller behind a space heater. However, the police found no device for using the cocaine.

Tony, testifying in his defense, claimed he did not know where the drugs came from and that neither he nor Jackie sold drugs. He theorized that Steve and Jackie were having an affair and that they planted the gun and cocaine on him in an elaborate scheme to frame him.

When reviewing a conviction, we determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). We determine only the sufficiency of the evidence under this standard and not the weight of the evidence or the credibility of the witnesses. As long as some competent evidence exists, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. See Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997).

“[I]ntentionally firing a gun at another, absent justification, is sufficient in and of itself to support a conviction of aggravated assault” under OCGA § 16-5-21 (a) (2). Steele v. State, 196 Ga. App. 330, 331 (2) (396 SE2d 4) (1990). Both Jackie and Steve testified that Tony fired his pistol at Jackie, who fled inside the house to call for help. Further, an officer gave testimony from which the jury could infer the pistol had been recently fired. This evidence is sufficient under Jackson v. Virginia, supra, to support the jury’s finding beyond a reasonable doubt that Tony committed the offense of aggravated assault. Id.; see also Cheney v. State, 233 Ga. App. 66, 70 (2) (503 SE2d 327) (1998).

Tony also argues the evidence was insufficient to support his conviction for possession of cocaine with the intent to distribute because Jackie and Steve both had access to the contraband. We disagree. This Court has consistently held that merely finding contraband on premises occupied by a defendant is insufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. Williams v. State, 207 Ga. App. 782, 784 (4) (429 SE2d 153) (1993). However, “where there is evidence other than a defendant’s own equal access connecting an accused to contraband, as here, it is for the jury to determine guilt or innocence.” Smith v. State, 235 Ga. App. 223, 226 (510 SE2d 295) (1998). In this case, Jackie testified that the cocaine was Tony’s and that she saw him hide it behind the water heater. Steve and Jackie both denied owning the cocaine and testified that Tony sold drugs from the house. This testimony constituted evidence of Tony’s possession of the cocaine other than his own equal access to it. Id.; Bell v. State, 198 Ga. App. 874, 875 (1) (403 SE2d 864) (1991). Although Jackie’s and Steve’s testimony on this point was somewhat contradicted, their credibility and the weight to be afforded their testimony were for the jury to determine. Cooley v. State, 201 Ga. App. 171 (1) (410 SE2d 453) (1991).

Decided April 28,1999

Johnny B. Mostiler, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       Goodman apparently believed separate appeals were necessary because the offenses for which he was convicted were charged in separate indictments. However, because the appeals arise from the same trial and enumerate the same errors, we consolidate them.