text:
    A00A0838.
    HARRIDGE v. THE STATE.
    (534 SE2d 113)
   Johnson, Chief Judge.

Around midnight on May 17, 1998, 20-year-old David Harridge was driving his pickup truck eastbound on Highway 96 in Houston County. At the same time and on the same highway, Phyllis Smith and her uncle, Tony Ray, were heading westbound in their car. Smith was driving. As the vehicles approached each other, Harridge’s truck crossed over the road’s centerline and collided with Smith and Ray’s car. Smith was killed and Ray was injured in the collision.

As a result of the accident, the state charged Harridge with driving under the influence of alcohol to the extent that he was a less safe driver, failing to maintain his lane, vehicular homicide in the first degree for causing Smith’s death while driving under the influence of alcohol, causing serious injury by vehicle to Ray while driving under the influence of alcohol, and possessing alcohol while under the age of 21. Harridge denied the charges, and the case was tried before a jury-

Harridge’s main defense at trial was that he was not under the influence of alcohol at the time of the accident. In fact, the state-administered test of Harridge’s blood taken after the accident showed that he did not have any alcohol in his blood. And the state presented no evidence that at the accident scene Harridge exhibited any signs of being under the influence of alcohol, such as smelling of alcohol, slurring his words or being unsteady on his feet. Instead, the state presented two sheriff’s deputies who testified that they saw beer and wine cooler bottles in Harridge’s truck. The state also presented an eyewitness to the collision, who testified that immediately after the accident Harridge said that “earlier in the day he had been drinking.” And the state introduced a 911 operator’s testimony that several days after the accident Harridge told her that he had drunk three or four wine coolers the evening before the accident.

The jury found Harridge not guilty of driving under the influence of alcohol, vehicular homicide in the first degree and causing serious injury by vehicle. But the jury found Harridge guilty of possessing alcohol while under the age of 21, failing to maintain a lane and vehicular homicide in the second degree for causing the death of Smith by failing to maintain a lane.

Harridge moved for a new trial on various grounds. The court denied the motion. Harridge appeals from the denial of his motion for a new trial.

1. Harridge asserts that he is entitled to a new trial because the state violated Brady v. Maryland by failing to inform him before the trial that preliminary state crime laboratory test results of Smith’s urine showed the presence of cocaine and marijuana. We agree and therefore reverse Harridge’s convictions of vehicular homicide in the second degree and its underlying offense of failing to maintain a lane.

Samples of Smith’s blood and urine were sent to the Georgia Bureau of Investigation laboratory to be tested for the presence of drugs and alcohol. On September 3, 1998, Harridge filed a Brady motion asking for, among other things, all evidence in the custody of the GBI laboratory. Sometime later in September, Kenneth Daniels, the GBI forensic toxicologist who tested Smith’s blood and urine, had preliminary test results showing the presence of cocaine and marijuana in Smith’s urine, but no drugs or alcohol in her blood. Daniels later told Dr. J. Carl Bleichner, the county medical examiner who conducted the postmortem examination of Smith, about those test results.

On or about October 16, 1998, four days before the start of Harridge’s trial, Dr. Bleichner spoke with the assistant district attorney who prosecuted Harridge. According to an affidavit provided by Dr. Bleichner, he told this prosecutor that the GBI laboratory’s preliminary tests showed the presence of cocaine and marijuana in Smith’s urine, but his autopsy results were not complete because he was still waiting for the final laboratory report.

On the morning the trial began, October 20, 1998, Harridge’s attorney complained to the court that he had not yet gotten the test results of Smith’s blood and even suggested that someone from the state call the GBI crime laboratory to inquire about those results. When the judge asked the prosecutor about the state’s position on Smith’s blood, she did not reveal the preliminary results showing nothing in Smith’s blood but showing the presence of cocaine and marijuana in her urine and instead stated that it was not the state’s duty to test Smith’s blood and that she had not received a request from Harridge to conduct his own independent test on Smith’s blood. Thereafter, the court offered to give Harridge an opportunity to conduct his own test of Smith’s blood, but Harridge turned down the offer and elected to proceed with the trial.

Approximately two months later, on December 31, 1998, the GBI laboratory issued its final report confirming that Smith did in fact have cocaine and marijuana in her urine. The report further indicates that marijuana was detected in Smith’s blood.

A defendant proves a Brady violation by showing that (1) the state possessed evidence favorable to the defense, (2) the accused did not possess the evidence and could not have obtained it through reasonable diligence, (3) the state suppressed the favorable evidence, and (4) a reasonable probability exists that disclosure of the evidence would have altered the outcome of the proceedings. All four of these factors exist in the instant case.

Given Dr. Bleichner’s unrefuted affidavit, we must conclude that prior to the trial the prosecutor knew that the crime laboratory’s preliminary test results showed cocaine and marijuana in Smith’s urine. Even absent that affidavit, we would be compelled to find that the prosecution team possessed those test results. For purposes of Brady, we decide whether someone is on the prosecution team on a case-by-case basis by reviewing the interaction, cooperation and dependence of the agents working on the case. Here, the GBI laboratory was fully involved in the investigation of this case in that it was responsible for testing not only Smith’s blood and urine, but also Harridge’s blood. Moreover, both the medical examiner and the prosecutor were completely dependent on the crime lab for determining the amount of drugs and alcohol present in Smith’s and Harridge’s bodies. Because the GBI laboratory was part of the prosecution team and based on Dr. Bleichner’s affidavit, we find that the state had possession of the test results showing drugs in Smith’s urine.

Contrary to the state’s argument, the test results are material and favorable to Harridge. The state argues that the results are not favorable to the defense because the evidence at trial established the collision was caused only by Harridge’s crossing the road’s centerline. While there is evidence to support such a conclusion, that is a matter for the jury to decide after hearing all the material evidence, including the conduct and condition of Smith at the time of the accident. In a vehicular homicide case,

the conduct of the decedent, whether negligent or not, is material to the extent that it bear's upon the question of whether under all the circumstances of the case the defendant was negligent, or, if negligent, whether the decedent’s negligence was the sole proximate cause of the injury, or whether the injury or death resulted from an unavoidable accident.

The level of cocaine and marijuana in Smith’s body is a circumstance on which Harridge could have relied to support his defense that he did not cause the accident. The jury may or may not have been persuaded by such a defense. But the jury, not the state, is entitled to make that decision based on all the evidence.

It is undisputed that Harridge did not have the preliminary test results of Smith’s urine and that he could not have obtained them even through reasonable diligence. Daniels, the GBI forensic toxicologist, testified without contradiction at the motion for new trial hearing that the preliminary results would not have been available to the defense. Rather, he testified, such information is available only to the officer who submitted the evidence and to the prosecutor in the case.

Nevertheless, the state argues that Harridge cannot meet the second prong of the Brady test because he waived the trial court’s offer of a continuance in order to independently test Smith’s blood. The state’s argument misses the point. The question here is not whether Harridge with reasonable diligence could have had the blood and urine samples tested himself, but whether he could have, through reasonable diligence, obtained the GBI crime lab’s preliminary test results showing cocaine and marijuana in Smith’s urine. As the GBI toxicologist testified, Harridge could not have gotten those test results, which were available only to the prosecution. Thus, Harridge has met the second prong of the Brady test.

He also meets the third prong. Given Harridge’s request for Brady material filed more than a month before the trial, the fact that the prosecutor never informed Harridge about the preliminary test results and that the prosecutor failed to inform either Harridge or the court on the morning of the trial about the drugs found in Smith’s urine, we must conclude that the state suppressed the material evidence. The prosecutor had an obligation to reveal this evidence favorable to Harridge’s defense, and her failure to do so, however inadvertent, amounts to suppression of the evidence.

Finally, we cannot say with any degree of certainty that the jury’s verdict would not have been different if it had heard evidence that Smith may have been under the influence of cocaine and marijuana at the time of the accident. The evidence goes to the question whether Smith was impaired and could not avoid the accident because of her impairment: in short, whether her condition was a contributing cause of her death. Where the ultimate issues are whether Harridge failed to maintain his lane and whether such failure caused Smith’s death, the jury should have heard the evidence improperly suppressed by the state. Because there is a reasonable probability that the disclosure of that information may have altered the outcome of the trial, Harridge is entitled to a new trial on the charges of vehicular homicide in the second degree and failing to maintain a lane.

2. Harridge contends there is insufficient evidence that he possessed alcohol while under the age of 21. The contention is without merit.

The unrefuted evidence shows that Harridge was only 20 at the time of the accident, and he has made no claim to the contrary. Moreover, there was testimony from two sheriff’s deputies that they saw beer and wine coolers in Harridge’s truck at the accident scene. And two other witnesses testified that Harridge told them that he had consumed alcohol earlier during the day of the accident.

Based on all the evidence, the jury was authorized to find beyond a reasonable doubt that Harridge possessed alcohol when he was under 21. His conviction for that offense is therefore affirmed.

3. Harridge argues that, although the court correctly suppressed the introduction into evidence of beer and wine cooler bottles allegedly seized from his truck some time after the accident, the court erred in nevertheless allowing a deputy to testify that he had seen such bottles at the accident scene. We disagree.

The trial court granted Harridge’s motion to suppress the bottles because the deputy seized them without a warrant after the truck had sat for nearly two days in an unsecured wrecker yard. But, the court ruled, the deputy could still testify about what he had seen in plain view at the scene of the accident, including his claim that he saw bottles of alcoholic beverages in Harridge’s overturned truck.

A trial court’s ruling that illegally seized evidence must be suppressed does not necessarily constitute a ruling on the admissibility of testimony related to that evidence. Such testimony may, for reasons not appearing in the motion to suppress, be admissible. This is such a case. While evidence seized without a warrant from the unprotected truck long after the accident may have been inadmissible, that improperly seized evidence did not render the deputy’s plain view observations at the accident scene inadmissible. We find no error in the court’s ruling.

4. Harridge claims that the court erred in denying his motion for a directed verdict on the charges of driving under the influence of alcohol, vehicular homicide in the first degree and causing serious injury by vehicle. Any error in the court’s failure to direct a verdict on those offenses is rendered moot because Harridge was found not guilty of those offenses. And upon the retrial of this case he, of course, cannot be retried for those offenses.

5. Harridge contends that the court erred in denying his demurrer to the indictment count charging him with failing to maintain a lane. The indictment cited the applicable Code section, OCGA § 40-6-48, which provides that whenever a road is divided into two or more lanes of traffic “a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” After citing that Code section, the indictment states that Harridge “did fail to operate his motor vehicle entirely within a single lane of traffic. . . .” Harridge argues that this language is deficient because it does not allege that he failed to ascertain whether he could move from his lane safely. The argument is unpersuasive.

Decided April 18, 2000.

Michael J. Moore, Arthur H. Clarke, Jr., for appellant.

The true test of the sufficiency of an indictment is not whether it could have been more definite, but whether it contains the elements of the offense charged, sufficiently informs the defendant of the charges so that he can present his defense without being surprised by the evidence and protects him against another prosecution for the same offense. Moreover, the absence of certain language in an indictment can be cured by citation to the applicable statute.

In this case, the indictment sufficiently informed Harridge of the offense that he needed to defend against and fully protected him against any subsequent prosecution for the same offense. Moreover, the citation of the applicable Code section cured any deficiency in the indictment. The trial court therefore did not err in denying Harridge’s demurrer.

6. We need not address Harridge’s claim that he is entitled to a new trial because of newly discovered evidence, because he can present any admissible new evidence at his retrial.

For the reasons set forth in this opinion, we affirm Harridge’s conviction for possession of alcohol by a minor, reverse his convictions on the charges of homicide by vehicle in the second degree and failure to maintain his lane and remand the case to the trial court with direction that Harridge be retried only on the charges of vehicular homicide in the second degree and failing to maintain a lane.

Judgment affirmed in part and reversed in part and case remanded with direction.

Phipps, J., and McMurray, Senior Appellate Judge, concur.

Kelly R. Burke, District Attorney, Amy E. Lambert, Assistant District Attorney, for appellee.

       373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

         The prosecutor has not refuted Dr. Bleichner’s affidavit. At Harridge’s motion for a new trial, she told the court that she remembers speaking to Dr. Bleichner about his autopsy report not being completed, but she does not recall if he told her about the cocaine and marijuana in Smith’s urine. She said: “I do not remember having that conversation. If I did[,] I don’t remember.”

        Carroll v. State, 222 Ga. App. 560, 561 (474 SE2d 737) (1996).

        Zant v. Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994).

       See generally Moody v. State, 210 Ga. App. 431, 432 (1) (436 SE2d 545) (1993) (an existing scientific report in the possession of the state crime lab is deemed to be available to the district attorney for purposes of discovery under OCGA § 17-7-211 (b)).

       (Citations and punctuation omitted.) Miller v. State, 236 Ga. App. 825, 829 (2) (513 SE2d 27) (1999).

       See Carroll, supra.

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lee v. State, 224 Ga. App. 542 (1) (481 SE2d 264) (1997); OCGA § 3-3-23 (a) (2).

        Reid v. State, 129 Ga. App. 660, 663 (2) (c) (200 SE2d 456) (1973).

       Id.

       See generally Johnson v. State, 179 Ga. App. 21, 22 (345 SE2d 123) (1986) (police officers testified about what they saw at accident scene, including beer in defendant’s car).

       See Matthews v. State, 268 Ga. 798, 803 (5) (493 SE2d 136) (1997); Jones v. State, 213 Ga. App. 11, 12 (1) (444 SE2d 89) (1994).

        See Dinning v. State, 267 Ga. 879, 880 (485 SE2d 464) (1997) (double jeopardy prohibits the retrial of a criminal defendant when the prosecution has failed to produce sufficient evidence to convict at the first trial).

       OCGA § 40-6-48 (1).

        Wade v. State, 223 Ga. App. 222, 223-224 (477 SE2d 328) (1996).

       Id.; Broski v. State, 196 Ga. App. 116, 117 (1) (395 SE2d 317) (1990).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A0881.
    ESPINOZA v. THE STATE.
    (534 SE2d 127)
   Phipps, Judge.

In alternative counts of an indictment, Israel Espinoza was charged with taking money from Eric Harris either by use of a handgun or by use of a replica of a handgun. Espinoza appeals his conviction on the latter count and his sentence of life imprisonment. He challenges the sufficiency of the evidence, and he contends that the trial court erred in refusing to instruct the jury on the lesser included offense of theft by taking. We find sufficient evidence to support the verdict and no error by the trial court in refusing to charge on the lesser offense. Therefore, we affirm the judgment.

Espinoza operated a floor cleaning business. The manager of a video rental store where Harris was employed hired Espinoza to clean the floors. The store manager testified that she was dissatisfied with Espinoza’s cleaning because he failed to remove stains from the floor but that she nonetheless paid him in full and told him that he would get no repeat business. According to the manager, Espinoza later returned to the store and persuaded her to give him $20 so he could rent a steam cleaner and “mak[e] things right.” When Espinoza failed to return to the store, the manager left to find him.

While she was gone, Espinoza reappeared at the store with a companion and confronted Harris in one of the aisles. Harris testified that Espinoza had his hand in his jacket pocket, holding a large object. According to Harris, Espinoza threatened to shoot him if he did not open the store registers and give him cash. In fear, Harris opened the registers. Espinoza took all of the money, approximately $560, and he and his companion then fled the store.

Prior to trial, Espinoza gave a written statement to police admitting that he and his companion smoked crack on the night in question, that they decided to “hit” the video store, that he had a box cutter in his pocket and his companion had a screwdriver, and that he told Harris that his companion would shoot him if he did not open the register.

At trial, Espinoza claimed that he had not been paid in full for his cleaning work even though he had cleaned the floors satisfactorily. He acknowledged returning to the store and agreeing to do additional cleaning after the store manager gave him the $20 to rent a steam cleaner. He testified that when he again returned to the store and found the manager absent, he became very upset because he had not been fully paid, and he instructed Harris to open the register and give him his money. Espinoza admitted acting “real belligerent[ly] ” toward Harris and taking hundreds of dollars out of the registers. But he denied threatening Harris, telling Harris that he or his companion was going to shoot him, or pretending that they were in possession of weapons.

1. Espinoza argues that there was insufficient evidence to support a finding that he perpetrated the robbery by using a replica of a weapon.

Under OCGA § 16-8-41 (a), a person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or immediate presence of another by use of an offensive weapon “or any replica, article, or device having the appearance of such weapon.” Both Harris’s testimony and Espinoza’s statement to police authorized the jury to find that Espinoza took money from Harris by use of a concealed object having the appearance of a weapon. The evidence was thus sufficient to support the verdict.

2. The trial court charged the jury on the lesser offense of robbery by intimidation but refused to charge the jury on the lesser offense of theft by taking.

Under OCGA § 16-8-40 (a) (2), a person commits the offense of robbery by intimidation when, with intent to commit theft, he takes property of another from the person or the immediate presence of another “[b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another.” Under OCGA § 16-8-40 (b), the maximum sentence for robbery by intimidation is 20 years. The armed robbery statute, OCGA § 16-8-41 (a), states that “[t]he offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.”

Under OCGA § 16-8-2, a person commits the offense of theft by taking “when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” OCGA § 16-8-12 (a) states that, with certain exceptions, a person convicted of theft by taking shall be punished as for a misdemeanor. Under the exception set forth in OCGA § 16-8-12 (a) (1), the defendant may be imprisoned for up to ten years if the property which is the subject of the theft exceeded $500. Consequently, theft by taking is a lesser included offense of both armed robbery and robbery by intimidation.

Decided April 19, 2000.

John R. Greco, for appellant.

“Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.” But “[w]here the evidence shows either the completed offense, as averred, or no offense, such evidence will not support a verdict for one of the lesser grades of the offense. [Cits.]” Consequently,

[w]here the uncontradicted evidence shows completion of the offense of armed robbery, and no evidence is presented to the effect that a weapon was not used in the robbery, the defendant is not entitled to a jury charge on the lesser included offenses of theft by taking or robbery by intimidation.

Conversely, where a case contains some evidence, however slight, that a weapon was not used, it has been held that the defendant is entitled to a jury charge on a lesser included offense.

Because Espinoza’s testimony provides evidence that neither a handgun nor a replica of a handgun was used to perpetrate the robbery, the trial court correctly charged the jury on the lesser included offense of robbery by intimidation. The question is whether Espinoza was also entitled to a charge on the lesser offense of theft by taking. We hold that he was not. Espinoza admitted coming into the video rental store with a companion, acting “real belligerent [ly] ” toward Harris, and demanding that he open the cash registers. Harris testified unequivocally that he was placed in fear. The evidence thus showed that Espinoza committed the robbery either by use of a replica of a handgun or by intimidation. No evidence was presented that intimidation was not used in the robbery. Therefore, Espinoza was not entitled to a charge on theft by taking as a lesser included offense of armed robbery and robbery by intimidation.

Judgment affirmed.

Johnson, C. J., and McMurray, Senior Appellate Judge, concur.

J. Tom Morgan, District Attorney, Robert M. Coker, Robert E. Statham III, Assistant District Attorneys, for appellee.

       See McCluskey v. State, 211 Ga. App. 205, 206 (2) (438 SE2d 679) (1993); compare Tate v. State, 191 Ga. App. 727 (2) (382 SE2d 688) (1989).

        Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994).

        James v. State, 210 Ga. App. 454, 455 (2) (b) (436 SE2d 565) (1993).

       (Footnote omitted.) Jones v. State, 233 Ga. App. 362, 364 (504 SE2d 259) (1998).

        Edwards v. State, supra.


author: Barnes, Judge.

text:
    A00A0754.
    COX v. THE STATE.
    (533 SE2d 435)
   Barnes, Judge.

Ralph Gilbert Cox pled guilty to driving under the influence, driving without insurance, and three counts of vehicular homicide. He was sentenced to 15 years for each of the homicide counts, or 45 years total, to serve 36 years with the balance on probation. He appeals the trial court’s denial of his motion to reconsider the sentence, arguing that because the three homicide counts arose from a single incident, they should merge for sentencing purposes. We disagree and affirm.

Cox argues that he has received multiple punishments for the single act of driving under the influence in violation of the Georgia and United States Constitutions, because “the DUI is an essential element of each count of vehicular homicide.”

The Georgia Constitution provides that “[n]o person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.” Ga. Const., Art. I, Sec. I, Par. XVIII. The Fifth Amendment of the United States Constitution similarly provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” “The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” (Citations and punctuation omitted.) Battista v. State, 223 Ga. App. 369, 370 (477 SE2d 665) (1996).

“Under Blockburger v. United States, 284 U. S. 299, 304 (52 SC 180, 76 LE 306) (1932), successively charged offenses are separate for purposes of double jeopardy if each offense requires the State to prove some element or fact that is not required in the other.” (Citation omitted.) Sword v. State, 232 Ga. App. 497, 498 (502 SE2d 334) (1998).

Cox was accused of committing three offenses of homicide by vehicle (OCGA § 40-6-393 (a)) through a violation of OCGA § 40-6-391, driving under the influence. In order to prove Cox guilty of vehicular homicide in the first degree under OCGA § 40-6-393, the State must show (1) that he violated OCGA § 40-6-391 by driving with an alcohol concentration of 0.10 grams or more, and (2) that he caused the death of another person. Thus Cox’s DUI conviction was properly merged with his convictions for vehicular homicide while driving under the influence, because all of the elements for DUI had to be proved in order to convict him of vehicular homicide while DUI.

Decided April 4, 2000

Reconsideration denied April 20, 2000

Banks, Stubbs & Neville, Rafe Banks III, Marc N. Cunat, for appellant.

Cox argues that, under the law before the enactment of OCGA § 40-6-393, convictions and multiple punishments for a single act were allowed because the defendant was presumed to have intended the consequences of injury to more than one person. See Webb v. State, 68 Ga. App. 466 (23 SE2d 578) (1942). Since OCGA § 40-6-393 removed the “intent” element from the crime of homicide by vehicle, Cox argues, his multiple punishments for three vehicular homicide counts cannot be affirmed on the basis that he intended multiple consequences from his single act of driving under the influence.

As the State points out, however, intent or malice has never been an element of involuntary manslaughter. See OCGA § 16-5-3 and its predecessors. Our decisions upholding multiple convictions and sentencing were based on the individuality of human life, not the presence of malice. See Rogers v. State, 163 Ga. App. 641, 644 (4) (295 SE2d 140) (1982). In Rogers, we affirmed a conviction of two counts of first degree homicide by vehicle, with consecutive sentences for each count.

Where one is charged with the homicide of different people in different counts and is found guilty on each count, he may be sentenced separately on each count to run consecutively for the reason that the killing of different persons constitutes separate crimes even though done at the same time with one stroke of the same death-dealing instrument. While the stroke was one transaction, the killing of different persons with that stroke constitutes several criminal transactions. We do not have here a lesser and a greater offense situation, or varying degrees of the same crime, or the same crime committed in various ways.

(Citation and punctuation omitted.) Id. Based on the holding in Rogers, the trial court did not err in denying Cox’s motion for reconsideration of his sentence.

Judgment affirmed.

Blackburn, R J., and Eldridge, J., concur.

Philip C. Smith, District Attorney, Penny A. Penn, Assistant District Attorney, for appellee.


author: Ruffin, Judge.

text:
    A00A0570.
    IERO v. MOHAWK FINISHING PRODUCTS, INC.
    (534 SE2d 136)
   Ruffin, Judge.

This case involves the issue of whether a forum selection clause in an employment contract may be enforced when the contract also contains noncompetition and nondisclosure covenants that violate Georgia’s public policy. For reasons that follow, we hold that such a forum selection clause can be enforced.

The relevant facts show that Mohawk Finishing Products, Inc. is a New York corporation. In. 1985, Mohawk hired David Iero to sell its products in New York and Pennsylvania. In 1986, Mohawk signed an employment agreement that contained both a noncompetition covenant and a forum selection clause. The forum selection clause provided, in pertinent part, that any actions stemming from the agreement “shall be instituted, prosecuted, and maintained by the Supreme Court of the County of Montgomery, State of New York.”

In 1987, Iero moved to Georgia and began selling Mohawk’s products. In 1996, Iero’s territory was enlarged to include all of Georgia and part of South Carolina. On April 9, 1996, Iero signed another employment agreement that, once again, contained noncompetition and nondisclosure covenants and a forum selection clause. Again, the forum selection clause mandated that any suit be instituted in Montgomery County, New York.

Iero voluntarily resigned from Mohawk on February 12, 1999, and, three days later took a job with Masters Magic, a competitor of Mohawk. Shortly thereafter, a vice president of Mohawk wrote Iero, reminding him that the contract he had signed contained noncompetition and nondisclosure covenants and informing him that Mohawk would “vigorously litigate” any breach of contract.

On May 3, 1999, Iero filed a complaint for declaratory judgment and injunctive relief in Fulton County Superior Court. Iero asserted that the noncompetition and nondisclosure covenants in the two employment contracts were overbroad, violated public policy, and were unenforceable. Mohawk moved to dismiss the suit on the grounds that the forum selection clauses in the two contracts required Iero to bring the action in New York rather than Georgia. The trial court granted Mohawk’s motion, and Iero appeals.

The United States Supreme Court addressed the enforcement of forum selection clauses in The Bremen v. Zapata Off-Shore Co., ruling that such clauses are prima facie valid and should be enforced unless the opposing party shows that enforcement would be unreasonable under the circumstances. To invalidate such a clause, the opposing party must show that trial in the chosen forum will be so inconvenient that he will, for all practical purposes, be deprived of his day in court. A freely negotiated agreement should be upheld absent a compelling reason such as “fraud, undue influence, or overweening bargaining power.” Thus, Iero bears the burden of proving that enforcement of his employment contract would be unreasonable under the circumstances.

In Harry S. Peterson Co. v. Nat. Union Fire Ins. Co., Georgia adopted the United States Supreme Court’s analysis regarding the enforcement of forum selection clauses. Since then, this Court has upheld the enforcement of forum selection clauses in an employment contract, a payment bond for a construction contract, and development and sales agreements. To date, however, neither this Court nor the Supreme Court of Georgia has applied the Bremen test to address the viability of a forum selection clause in an employment contract that contains a noncompetition covenant.

In his brief, Iero does not urge that we use the Bremen test but simply argues that, for public policy reasons, the forum selection clause should not be enforced if contained in an employment contract that also has a noncompetition covenant. Indeed, Bremen does suggest that certain contractual forum selection clauses may be held unenforceable if such clause contravenes “a strong public policy of the forum in which the suit is brought, whether declared by statute or by judicial decision.” But Bremen limits this exception to forum selection clauses that might be damaging to the forum itself, not simply damaging to the litigants because of an unfavorable law in the selected forum. Specifically, the example cited by Bremen involved a contractual choice-of-forum clause which, if enforced, might encourage negligence by third parties in the forum in which the suit was initially brought. This exception does not allow parties who agree to litigate in a specified forum to circumvent their contractual obligations simply because they do not like the laws of the chosen forum, which appears to be the situation here.

Under these circumstances, Iero fails to show that the mere enforcement of a freely negotiated forum selection cause violates Georgia public policy. Indeed, he does not even address whether the New York court would apply New York law. Accordingly, our inquiry is limited to whether enforcement of the forum selection clause is inconvenient or would deprive Iero of his day in court. We also must look to whether the contract was the product of fraud, undue influence, or overweening bargaining power on the part of Mohawk.

Iero does not contend that enforcement of the forum selection clause would deprive him of his day in court. Indeed, Iero would be able to bring suit in New York. Litigation in New York likely would be inconvenient for Iero, who has been a resident of Georgia for over a decade, but mere inconvenience will not render such a clause unenforceable. Additionally, Iero does not argue that the employment contract was the product of fraud or undue influence, and there is nothing in the record to suggest otherwise.

In arguing that the enforcement of the contract should be void as against public policy, Iero indirectly suggests that Mohawk wielded an unfair advantage in having him sign an employment contract with a broad noncompetition covenant. At least one jurisdiction has held that “the employer-employee relationship is so inherently unequal that... a forum selection clause in an employment agreement should not be enforced.” But, as this Court has already upheld a forum selection clause in an employment contract, we do not adhere to this broad rule. Accordingly, absent case-specific evidence that there was a “manifest disparity” in bargaining position, or that Mohawk obtained Iero’s assent to the forum selection clause through fraud or overreaching, or that the enforcement of the clause violates public policy, we will enforce the clause.

Here, the record does not suggest either that Mohawk obtained Iero’s signature on the two contracts through fraud or overreaching or that Mohawk had a manifestly unfair advantage over Iero. Given the absence of evidence that enforcement of the forum selection clause is unreasonable under the circumstances, the trial court did not err in dismissing Iero’s complaint.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

Decided April 20, 2000.

Davis, Zipperman, Kirschenbaum & Lotito, Barry L. Zipperman, Steven A. Suna, for appellant.

Alston & Bird, Randall D. Grayson, for appellee.

       407 U. S. 1 (92 SC 1907, 32 LE2d 513) (1972).

       Id. at 10.

       Id. at 18.

       Id. at 12.

       See Carnival Cruise Lines v. Shute, 499 U. S. 585, 592 (111 SC 1522, 113 LE2d 622) (1991).

       209 Ga. App. 585 (434 SE2d 778) (1993).

       Id. at 589-591 (3) (b).

        Brinson v. Martin, 220 Ga. App. 638, 640 (1) (b) (469 SE2d 537) (1996).

        Harry S. Peterson Co., supra.

        Antec Corp. v. Popcorn Channel, L.P., 225 Ga. App. 1, 2 (1) (482 SE2d 509) (1997).

        The Bremen, supra at 15.

       Id.

       Id. at 15.

         Dentsply Intl. v. Benton, 965 FSupp. 574, 579 (M.D. Pa. 1997).

        Brinson, supra.

       Id. at 640.


text:
    A00A0618.
    BURGE v. THE STATE.
    (534 SE2d 132)
   Phipps, Judge.

Henry Burge appeals his convictions for obstruction of an officer and riot in a penal institution. He challenges the sufficiency of the evidence to support the jury’s verdict. After review of the record, we find the evidence was sufficient to support the verdict, and we affirm Burge’s convictions.

Viewing the evidence in the light most favorable to the verdict, the jury was authorized to find that the following occurred. On April 2, 1998, Burge was lawfully incarcerated at the Floyd County Jail. His uncle, Anthony Burge, was also an inmate in the same cellblock. Anthony Burge became involved in an altercation with other inmates in a cell on the lower level of the cellblock. After breaking up the fight, officers ordered Anthony Burge to go to his cell on the second level and gather his belongings because he was going to be removed to isolation. Before Anthony Burge left the second level, Henry Burge exited his cell on that level and angrily charged down the stairs. Sergeant Billy Null met him on the stairs and twice instructed him to go back to his cell. Burge refused to comply, and Null told him to go and gather his possessions, because he too was going to be placed in isolation. Burge then began yelling curses and threats at Null, pointing his finger in Null’s face and making fists. While Null was attempting to restrain him, Burge either “lunged at” or pushed Null. They fell down the stairs to the floor. On the floor, Burge began swinging at Null, and three officers pulled Burge off Null and wrestled with him before they were able to restrain him. Null suffered a broken finger in the encounter.

“Whoever knowingly and willfully resists, obstructs or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer” commits the felony of obstruction of an officer. “Any person legally confined to any penal institution of this state or of any political subdivision of this state . . . who commits an unlawful act of violence or any other act in a violent or tumultuous manner commits the offense of riot in a penal institution.”

Decided April 20, 2000.

William H. Newton III, for appellant.

Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. In evaluating the sufficiency of the evidence, the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Based on these facts, a rational trier of fact could have found beyond a reasonable doubt that Burge committed the offenses of obstruction of an officer and riot in a penal institution. Accordingly, we affirm the convictions.

Judgment affirmed.

Johnson, C. J, and McMurray, Senior Appellate Judge, concur.

       OCGA § 16-10-24 (b).

       OCGA § 16-10-56 (a).

       (Citations, punctuation and emphasis omitted.) Johnson v. State, 239 Ga. App. 886 (522 SE2d 478) (1999).


text:
    A00A0709.
    MOORE v. BELLSOUTH MOBILITY, INC. et al.
    (534 SE2d 133)
   Ruffin, Judge.

Robert Moore sued BellSouth Mobility, Inc., BellSouth Corporation, BellSouth Cellular Corporation, his supervisor, Alex Moraitis, and eight officers and employees, alleging that BellSouth Mobility breached an oral employment contract with Moore and that all other defendants intentionally interfered with his rights under the contract. The defendants moved to dismiss both counts on the ground that Moore failed to state a claim on which relief could be granted, and the trial court granted the motion. Moore appeals. As the trial court ruled correctly, we affirm.

A trial court should grant a motion to dismiss only when, assuming the allegations in the complaint are true, the plaintiff would not be entitled to any relief under the facts as stated and the defendant demonstrates that the plaintiff could not introduce evidence that would justify granting the relief sought. Our review is de novo.

In his complaint, Moore alleges that he went to work for Bell-South Mobility in 1990. In 1996, Tony Walker, Director of Sales for BellSouth Mobility, offered Moore the position of Sales Manager for the Atlanta Major Account Executive Team. This job change required Moore to move from Alabama to Atlanta and to take a pay cut. But Walker told Moore that his sales quota would be reduced and that, if he met the reduced quota, he would be promoted to Director of Sales without waiting one year, which was the normal waiting period for such promotion. Moore did not allege that his expected promotion to Director of Sales would occur within a definite term or would be for a specific level of pay. In January 1997, Moore accepted the job and moved to Atlanta.

Shortly after Moore took the new job, Walker left BellSouth Mobility, and Moore began reporting to Moraitis. Although Moraitis did not reduce Moore’s sales quota as promised, Moore’s sales team exceeded the required quota. Nevertheless, when the Director of Sales positions became available, Moore was not promoted. Moore contends that, when such positions became available, they were filled by women or minorities who had less experience and were less qualified than he.

According to Moore, BellSouth was being pressured by a coalition of African-American and female employees called the Coalition of Diversified Employees (CODE) to promote female and minority employees into management positions. Vernon Jones, a BellSouth employee and a Georgia legislator, headed the group. BellSouth officers met with Jones, who, according to Moore, had accused the company of engaging in discriminatory practices. Moore claims that Jones and CODE “demanded that BellSouth create policies regarding hiring and promotion that would favor black and female employees for management and director level positions.” Moore alleges that BellSouth secretly agreed with Jones to institute a policy of promoting black and female employees in exchange for Jones’ voluntary resignation. According to Moore, this policy has prevented him from being promoted in accordance with the agreement he reached with Walker.

1. In his first enumeration of error, Moore contends that the trial court erred in dismissing his breach of contract claim. We disagree. Moore does not dispute the fact that he was an at-will employee. “[0]ral promises as to future events are not enforceable by at will employees such as [Moore], and cannot provide grounds for a breach of contract claim.” Thus, as an at-will employee, Moore cannot sue BellSouth for failing to promote him.

Moore contends that because the promise had definite terms, it is enforceable. Moore cites Arby’s, Inc. v. Cooper for the proposition that a promise of future compensation may be enforceable if the promise is made at the beginning of the employment. While this remains the law, in order for such promise to be enforceable, it must be a promise of future compensation “for an exact amount or based upon a formula or method for determining the exact amount.” A promise of a promotion, however, at most merely implies additional compensation. Here, Moore does not allege that his promised promotion would result in a specified increase in pay, much less provide its method of calculation. As such, there is an element of uncertainty that renders this alleged executory obligation unenforceable as a matter of law.

We are unable to distinguish this case from Alston v. Brown Transport Corp., in which Brown Transport hired “casual” dockworkers with the promise that they would be promoted to regular dockworkers after 90 days. When the promotion failed to materialize, the dockworkers sued for breach of contract in an effort to receive the increased wages they would have received had they been promoted. In rejecting this claim, we held that no claim for failure to promote can be maintained where the underlying employment contract is for an indefinite time and is terminable at will. We further noted:

It is the general rule that a hiring indefinite as to time is terminable at the will of either party and creates no executory obligations. The oral promises could not be enforced because the underlying employment contract, being terminable at will, is unenforceable.

Decided April 20, 2000.

Caldwell & Watson, Harmon W. Caldwell, Jr., Wade H. Watson III, Vincent M. Ferrero, for appellant.

Kilpatrick Stockton, James H. Coil III, Daniel F. Piar, Gloria L. Johnson, for appellees.

Accordingly, the trial court did not err in dismissing Moore’s claim for breach of contract.

2. In his second enumeration of error, Moore contends that the trial court erred in dismissing his claim of intentional interference with his contractual relationship. Moore asserts that Moraitis and certain other BellSouth officers intentionally enacted discriminatory policies with the knowledge that the policies would interfere with his contractual right to promotion. We disagree.

To maintain a claim for tortious interference with contractual relations, Moore must allege that the defendants: (1) took improper action or engaged in wrongful conduct without privilege; (2) acted purposely and with malice with the intent to injure; (3) induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) that their tortious conduct proximately caused damage to the plaintiff. “A cause of action for intentional interference with contractual rights must be based on the intentional and non-privileged interference by a third party with existing contractual rights and relations.”

Moore is unable to maintain a claim for tortious interference with contractual relations. For the reasons stated in Division 1, Moore does not have an enforceable contract. There can be no breach of an unenforceable contract. It follows that Moore cannot hold defendants liable for inducing the alleged breach. Thus, the trial court did not err in dismissing this count.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       The BellSouth officers and employees included Iain Paterson, Duane Ackerman, Stan Hamm, Earle Mauldin, Odie Donald, and Roy McAllister.

       Moore also asserted a claim for intentional interference with his employment relationship with BellSouth Mobility. But that claim is not before us on this appeal.

        Mooney v. Mooney, 235 Ga. App. 117 (508 SE2d 766) (1998).

        Sidwell v. Sidwell, 237 Ga. App. 716, 717 (1) (515 SE2d 634) (1999).

        Plane v. Uniforce MIS Svcs. &c., 223 Ga. App. 731, 733 (1) (479 SE2d 18) (1996); see also Alston v. Brown Transport Corp., 182 Ga. App. 632, 633 (2) (356 SE2d 517) (1987).

       265 Ga. 240 (454 SE2d 488) (1995).

       Id. at 241.

       (Punctuation omitted.) Id.

       Id. at 242.

       Supra.

       (Punctuation omitted.) Id. at 633 (2).

        Witty v. McNeal Agency, 239 Ga. App. 554, 561 (4) (521 SE2d 619) (1999).

       (Citations, punctuation and emphasis omitted.) Lake Tightsqueeze v. Chrysler First Financial Svcs. Corp., 210 Ga. App. 178, 181 (5) (435 SE2d 486) (1993).

        Dwyer v. McCoy, 236 Ga. App. 326, 328 (4) (512 SE2d 70) (1999).


author: Miller, Judge.

text:
    A00A0828.
    SMALL v. THE STATE.
    (534 SE2d 139)
   Miller, Judge.

Following a bench trial, Jonathan Small was found guilty of trafficking in cocaine. On appeal, he urges the general grounds and challenges the denial of his motion to suppress the evidence. Small also contends that the sentence imposed is disproportionate to the charged offense. We affirm.

1. Upon review of the denial of the motion to suppress, we are 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 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.

Viewed in this light, the conflicting evidence authorized the following facts: Drug Enforcement Administration agents received a tip from a confidential informant that Small was traveling that day to Atlanta from Fort Lauderdale and that he purchased his ticket one day prior to the flight with cash. The agents confirmed with the airline that Small was a ticketed passenger who checked one bag and further confirmed that a green military-type duffel bag with the corresponding claim number had Small’s name on it.

Upon his arrival at Atlanta’s airport, Small was approached by Agents Gillespie and McCrackin after he picked up his duffel bag from the carousel. Gillespie identified himself as a police officer and asked Small if he could briefly speak with him. Small agreed and produced his driver’s license and airline ticket, which Gillespie returned to Small. Small consented to a search of his person but refused a search of his bag. Gillespie then asked if he could place Small’s bag in a lineup for a canine narcotics inspection. Small consented so long as his was not the only bag inspected and so long as Small was present to witness the canine inspection. Gillespie assured Small that he was not then under arrest. In a three-bag lineup, the trained canine alerted to the presence of narcotics in Small’s bag, and agents again requested to search his bag, to which Small responded, “Get your warrant.” Small was then detained while agents obtained a search warrant. Upon executing it, Gillespie discovered what was later tested to be 997 grams of cocaine of 77 percent purity.

Small argues that the initial inquiry was a police stop that was not supported by reasonable and articulable suspicion. There are three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore not within the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. Contrary to Small’s assertion, the issue of whether agents had a reasonable and articulable suspicion to stop him is not germane as the agent’s initial approach and identification inquiry “clearly fall within the realm of the first type of police-citizen encounter and do not amount to a stop.” Moreover, the agent’s request for consent to search is not a seizure and does not require articulable suspicion.

In order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer’s requests or otherwise terminate the encounter.

Agent Gillespie testified that one agent was in the background while McCrackin stood to the side and only Gillespie talked with Small. The agent simply asked to speak with Small and made no showing of force or coercion. Small could have refused to speak with the agent, but instead, he consented to permissible questioning and had “no objective reason to believe that he was not free to end the conversation and proceed on his way.” Therefore, there was no “stop” that required reasonable and articulable suspicion.

Thereafter, Small consented to a canine inspection of his bag. Once a voluntary consent is legally obtained, it continues until it is either revoked or withdrawn, and it eliminates the need for either probable cause or a search warrant. The canine’s alert to the scent of narcotics “established probable cause for [Gillespie] to believe [Small] was in possession of illegal drugs,” authorizing the subsequent issuance of the search warrant. Thus, the court did not err in denying the motion to suppress.

2. As we have determined the trial court properly denied the motion to suppress, the evidence was sufficient under the standard of Jackson v. Virginia to support Small’s conviction for trafficking in cocaine in violation of OCGA § 16-13-31 (a) (l).

3. Small was sentenced to confinement for thirty years with service of the last five years on probation, a $1,000,000 fine, and a monthly fee to offset the cost of probation. He contends that this sentence is excessive.

The Eighth Amendment protects against cruel and unusual punishment, a concept which prohibits, among other things, arbitrary and disproportionate sentences. Unless a sentence is so overly severe or excessive in proportion to the offense as to shock the conscience, a legislatively authorized punishment does not ordinarily exceed the constitutional bound. It could, if the court abused its discretion in imposing a sentence which is excessive and disproportionate in a specific case.

Small’s sentence is within the statutory limits set by OCGA § 16-13-31 (a) (1) (C) and (g) and is not so disproportionate as to shock the conscience. “We will not review for legal error any sentence which is within the statutory limits. Any question as to the excessiveness of such a sentence should be addressed to the sentence review panel as provided in OCGA § 17-10-6.”

Decided April 20, 2000.

George H. Weldon, for appellant.

Robert E. Keller, District Attorney, Christopher M. Howlette, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, P. J., concur.

       (Citations and punctuation omitted.) Stokes v. State, 238 Ga. App. 230 (518 SE2d 447) (1999).

        McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997).

       Id.

        Stokes, supra, 238 Ga. App. at 232, applying State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992).

       (Citations and punctuation omitted.) McClain, supra, 226 Ga. App. at 716 (1).

       See Voyles v. State, 237 Ga. App. 886, 887 (1) (517 SE2d 113) (1999); Yocham v. State, 165 Ga. App. 650 (1) (302 SE2d 390) (1983).

       (Citation and punctuation omitted.) Stokes, supra, 238 Ga. App. at 233.

        Boggs v. State, 194 Ga. App. 264 (390 SE2d 423) (1990).

       (Citations and punctuation omitted.) Johnson v. State, 230 Ga. App. 535, 538 (1) (496 SE2d 785) (1998); accord Boggs, supra, 194 Ga. App. at 264 (sniffing dog may provide probable cause for the issuance of a search warrant or, where exigent circumstances are present, justify a search without a warrant); see also Gilbert v. State, 212 Ga. App. 308, 309 (1) (441 SE2d 785) (1994) (probable cause to believe suspect possessed cocaine authorized stop of vehicle and search incident to lawful arrest).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       See Hinson v. State, 237 Ga. App. 366, 367 (2) (515 SE2d 203) (1999) (whole court); accord Brundage v. State, 231 Ga. App. 478, 479-480 (1) (499 SE2d 408) (1998).

       (Citations and punctuation omitted.) Palmore v. State, 236 Ga. App. 285 (511 SE2d 624) (1999); see Reid v. State, 235 Ga. App. 887, 889 (2) (510 SE2d 851) (1999).

       See also Alliston v. State, 183 Ga. App. 462, 464 (3) (359 SE2d 220) (1987) (judgment may be entered for costs including those as part of probation).

       See Reid, supra, 235 Ga. App. at 889 (2).

       (Citation and punctuation omitted.) Harden v. State, 239 Ga. App. 700, 702 (3) (521 SE2d 829) (1999); see Broadwell v. State, 224 Ga. App. 193, 195 (4) (480 SE2d 215) (1996); Winn v. State, 215 Ga. App. 120 (2) (449 SE2d 667) (1994).


text:
    A98A0914.
    McNEAL CONSTRUCTION COMPANY et al. v. WILSON.
    (534 SE2d 157)
    Decided April 21, 2000.

      H. David Moore, Lisa R. Coody, for appellants.

      Westmoreland, Patterson & Moseley, Bradley G. Pyles, Kirby R. Moore, for appellee.
   Ruffin, Judge.

In McNeal Constr. Co. v. Wilson, we affirmed the grant of summary judgment to Robbie Wilson, executrix of the estate of Thelma McNeal, on her claims against McNeal Construction Company and Roy McNeal. The Supreme Court reversed our decision, holding that Wilson’s claims were barred by the statute of limitation. Accordingly, our prior opinion is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the trial court’s ruling granting summary judgment to Wilson and denying summary judgment to the defendants is reversed.

Judgment reversed.

Pope, P. J., and Ellington, J., concur.

       235 Ga. App. 759 (509 SE2d 742) (1998).

        McNeal Constr. Co. v. Wilson, 271 Ga. 540 (522 SE2d 222) (1999).


text:
    A00A0116.
    PARKER v. CLARY LAKES RECREATION ASSOCIATION, INC.
    (534 SE2d 154)
   Ruffin, Judge.

Phillip Parker applied to the Cobb County Superior Court for an order compelling Clary Lakes Recreation Association, Inc. (CLRA) to produce certain corporate documents. The superior court granted in part and denied in part Parker’s application, and he appeals. We affirm.

CLRA is a nonprofit homeowners’ association of which Parker is a member. Parker sued CLRA in 1997, alleging mismanagement and violation of corporate bylaws. During discovery in that litigation, CLRA produced all corporate records requested by Parker. After the discovery period in that case closed, Parker sent a written request to CLRA to “inspect all accounting and/or corporate records of [CLRA] for the purpose of determining the performance of management and the condition of the corporation.” Parker requested that CLRA produce nine categories of documents from December 1998 to the date of the request, including records of all asset accounts, invoices and billing statements, profit and loss statements, tax returns, corporate meeting minutes, and membership lists. CLRA refused the request on the grounds that it was “nothing more than an attempt to conduct additional discovery in [the pending] lawsuit after the discovery period ha[d] expired.”

Parker applied to the superior court under OCGA § 14-3-1604 for an order directing CLRA to produce the requested documents and for an award of attorney fees. The application was heard by the same judge presiding over Parker’s lawsuit against CLRA. Following a hearing, the judge denied Parker’s application with respect to all documents requested but ordered CLRA to produce minutes from certain corporate meetings. OCGA § 14-3-1602 allows members of nonprofit corporations to inspect and copy certain corporate records. The statute divides corporate records into two basic categories. The first category, listed in OCGA § 14-3-1602 (a), includes eight kinds of records, such as articles of incorporation, bylaws, minutes of meetings, and corporate resolutions. These records are accessible to any member who makes a written request at least five business days before the date the member wishes to inspect and copy such records. The second category, listed in OCGA § 14-3-1602 (c), includes excerpts of minutes of certain specialized corporate meetings, accounting records of the corporation, and the membership list. Members may inspect and copy the records in the second category only if:

(1) The member’s demand is made in good faith and for a proper purpose that is reasonably relevant to the member’s legitimate interest as a member;
(2) The member describes with reasonable particularity the purpose and the records the member desires to inspect;
(3) The records are directly connected with this purpose; and
(4) The records are to be used only for the stated purpose.

If a corporation does not allow a member who meets the above requirements to inspect and copy records, the member may apply to the superior court for an order permitting inspection and copying of the requested records. If the court enters such an order, it shall also order the corporation to pay the member’s reasonable costs and attorney fees incurred to obtain the order “unless the corporation proves that it refused inspection in good faith because it had a reasonable basis for doubt about the right of the member to inspect the records demanded.”

We have not addressed the proper standard of review of a trial court’s ruling on an application pursuant to OCGA § 14-3-1604 to inspect and copy the books of a nonprofit corporation. We note, however, thát shareholders of for-profit corporations have virtually identical statutory inspection rights. Specifically, shareholders of for-profit corporations may apply to the superior court for an order allowing them to inspect and copy corporate records. We have held that an applicant for such an order bears the burden of “showing a proper purpose as to specific materials” and that the trial judge has

much discretion ... to determine whether the purpose named is a proper one, whether the request is vexatious or arising from idle curiosity, whether the documents called for are relevant, material, and not over burdensome, [and] whether granting the requests would violate principles of confidentiality.

We have held also that a trial court’s findings with respect to whether an applicant has shown a “proper purpose” to compel production of corporate documents must stand unless it is clearly erroneous.

Applying this standard of review here, we must affirm the trial judge’s ruling. Because virtually all of the documents Parker sought fell into the second category, under OCGA § 14-3-1602 (c), he had to show that he wanted them for a “proper purpose.” Parker claims that he wanted the documents “for the purpose of determining the performance of management and the condition of the corporation.” After holding a hearing and considering “the full record and all submissions,” however, the trial judge concluded that Parker “has not sufficiently demonstrated that the documents sought are being sought for a proper purpose and not as an attempt to obtain discovery for [his lawsuit against CLRA] after the expiration of the discovery period.” The judge did, however, order CLRA to produce “any minutes as required by OCGA § 14-3-1602 (a) (5).” Finding that CLRA refused inspection in good faith because it had a reasonable doubt that Parker was entitled to inspect the records, the judge also refused to impose costs and attorney fees. As the trial judge also presides over Parker’s first lawsuit against CLRA, she is in the best position to evaluate Parker’s motives for seeking the documents. After reviewing the record, including the transcript of the hearing, we cannot say that the trial judge’s findings are clearly erroneous. Accordingly, we affirm.

Decided April 21, 2000.

Austin & Sparks, John T. Sparks, for appellant.

Temple, Strickland, Counts & Binges, William A. Binges, for appellee.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

       Neither the complaint nor any other pleadings from that lawsuit are part of the record in this case.

       OCGA § 14-3-1602 (b).

       OCGA § 14-3-1602 (c).

       OCGA § 14-3-1602 (d).

       OCGA § 14-3-1604 (a), (b).

       OCGA § 14-3-1604 (c).

       See OCGA §§ 14-2-1602; 14-2-1603.

       OCGA § 14-2-1604.

        Riser v. Genuine Parts Co., 150 Ga. App. 502, 505 (2) (258 SE2d 184) (1979) (construing predecessor to OCGA § 14-2-1604); see also McLean v. Turtle Cove Property Assn., 222 Ga. App. 709, 711 (2) (475 SE2d 718) (1996).

       See Stewart v. Bank of Lumber City, 193 Ga. App. 188, 189 (1) (387 SE2d 366) (1989).

       Parker argues that the judge should not have considered an affidavit submitted by CLRA’s lawyer in opposition to his application. Among other things, the affidavit discusses Parker’s first lawsuit against CLRA. According to Parker, the affidavit cannot be based on personal knowledge because the lawyer only recently began representing CLRA. Pretermitting whether the affidavit is based on personal knowledge, the pleadings in the first lawsuit are a matter of public record. Moreover, as the same judge presides over both cases, she is already familiar with the proceedings in the first case. Thus, even if the judge’s failure to strike the affidavit was error, such error was harmless.

       OCGA § 14-3-1602 (a) (5) requires that nonprofit corporations keep “[t]he minutes of all meetings of members and records of all actions approved by the members for the past three years.”


text:
    A00A0378.
    SWAN KANG, INC. v. TAE SANG KANG (YI).
    (534 SE2d 145)
   Ruffin, Judge.

Swan Kang, Inc. sued Tae Sang Kang (Yi) for breach of a contract to purchase a liquor store. Swan Kang claimed that Yi owed it $20,000 in liquidated damages under the contract, as well as attorney fees under OCGA § 13-6-11. The trial court granted summary judgment to Yi on the ground that the liquidated damages provision in the contract was an unenforceable penalty. We disagree and reverse.

To prevail on summary judgment, a defendant must show that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the plaintiff, warrant judgment as a matter of law. We review a grant of summary judgment de novo.

Swan Kang owned and operated a liquor store in Lilburn. Acting through a broker, Yi offered to purchase the store for $1.07 million. The offer was in the form of a proposed contract and was signed by Yi and the broker, with a blank for the seller’s signature. The contract provided that Yi would pay the broker $20,000 in earnest money, which would be applied toward the purchase price at the closing. The contract also provided that if “this contract is not consummated by reason of Buyer’s refusal or inability to perform, then such earnest money shall be paid to Seller as liquidated damages for Buyer’s breach.”

The broker delivered the offer to Thomas Kang, an officer of Swan Kang. Kang made several handwritten changes to the contract which Swan Kang admits were material, and then Kang signed it. The broker then returned the modified contract to Yi. According to the broker, Yi reviewed the changes, said that they were acceptable, and then gave the broker a $20,000 check for the earnest money. Yi, however, testified that she never approved Kang’s changes and, in fact, was not even aware of them until this litigation ensued.

The broker deposited Yi’s check into an escrow account. A day or two later, the bank notified the broker that the check had been returned for insufficient funds. The broker contacted Yi, but she never corrected the problem. Shortly thereafter, Yi told the broker that she wanted to cancel her offer because she had just discovered that there was another liquor store nearby. Yi then sent Kang a letter titled “Notice of Cancellation of Offer” explaining that she was canceling her offer because she had not been told about the other store, and she did not want to compete with it.

Swan King sued Yi for $20,000, plus attorney fees. Yi sought summary judgment on four grounds: (1) there was no meeting of the minds and thus no contract; (2) the earnest money provision was an unenforceable penalty; (3) the contract failed to describe the real property to be conveyed; and (4) Yi properly exercised her right to cancel the contract. The trial court ruled that the earnest money provision was not a valid liquidated damages provision, but an unenforceable penalty, and granted summary judgment to Yi. The court did not address the other grounds raised in Yi’s motion for summary judgment.

1. Swan Kang contends that the trial court erred by concluding that the liquidated damages provision was an unenforceable penalty. We agree.

Georgia law allows parties to provide for liquidated damages in their contract. Such provisions are enforceable if (1) the injury caused by a breach of the contract is difficult or impossible to estimate accurately; (2) the parties intended to provide for damages rather than a penalty; and (3) the stipulated sum is a reasonable estimate of the probable loss. The party who defaults under the contract bears the burden of proving that the liquidated damages clause is an unenforceable penalty. The enforceability of such a clause is a question of law for the court. Applying these principles here, we find that Yi has failed to show that the liquidated damages-clause at issue is an unenforceable penalty.

First, Yi presented no evidence that the damages resulting from a breach of the contract could be calculated easily and accurately. In Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., the Supreme Court addressed the enforceability of a liquidated damages provision in a real estate sales contract that was worded almost identically to the one in this case. The Court noted that:

the ordinary measure of damages in this type of case is the difference between the contract price and the market value of the property at the time of the buyer’s breach. Market value at the time of the breach would be subject to the varying opinions of experts, who would have to reconstruct a past market when making their evaluation.

In light of this difficulty, the Court concluded that the first- requirement for an enforceable liquidated damages clause was satisfied. The same reasoning applies here.

As for the second requirement, we ascertain the intent of the parties by first looking to the language of the contract. Although the words used by the parties are not conclusive, they are a significant factor in determining the parties’ intent. In Liberty Life, the Supreme Court held that there was “no question the parties intended to provide for liquidated damages” in part because “the damages clause was denominated as liquidated by the parties.” Here, the contract specifically states that the seller may retain the earnest money as liquidated damages in the event of the buyer’s breach, indicating that the parties intended to provide for liquidated damages and not for a penalty. Moreover, as this language first appeared in an offer drafted by Yi, it is construed against her.

Finally, the stipulated sum appears to be a reasonable estimate of probable loss. In Liberty Life, the Supreme Court found that a $37,000 earnest money payment which represented ten percent of the purchase price was reasonable. Here, the $20,000 earnest money payment represents approximately two percent of the purchase price. In the absence of any evidence to the contrary, we find that this figure is reasonable.

As Yi failed to carry her burden of proving that the liquidated damages provision was an unenforceable penalty, the trial court erred in granting summary judgment in her favor on that ground. However, we affirm a grant of summary judgment if it is right for any reason. Thus, we must consider the other grounds that were raised in Yi’s motion but not addressed by the trial court.

2. Yi asserted that there was no contract because the parties never reached a meeting of the minds. According to Yi, Kang’s material changes to her offer to purchase the business constituted a counteroffer, not an acceptance. This is correct, because “[a] subsequent communication by one party to the alleged contract that varies even one term of the original contract is a counteroffer; a counteroffer rejects an offer and terminates the offeree’s power of acceptance.” Yi argued that she did not accept the counteroffer or even learn of its existence until the litigation began. The broker, however, averred that he showed Kang’s changes to Yi and that she agreed to them and then gave him a check for the earnest money deposit. Accordingly, there is a factual dispute as to whether Yi accepted Swan Kang’s counteroffer and thereby created a contract between the parties, which precludes summary judgment on this ground.

3. Yi argued that the contract was not enforceable because it contained a legally insufficient description of the property to be conveyed. Again, we disagree.

To satisfy the statute of frauds, a contract for the sale of property must contain a clear and definite description of the property. A perfect description is not required, but the contract:

must furnish the key to the identification of the land intended to be conveyed by the grantor. If the premises are so referred to as to indicate his intention to convey a particular tract of land, extrinsic evidence is admissible to show the precise location and boundaries of such tract. The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that its identification is practicable.

A description will fail if it “is so indefinite that no particular tract of land is pointed out,” but even a vague description will suffice “if by competent parol evidence its precise location is capable of ascertainment and its identity can thus be established.” The legal sufficiency of a description is a question of law for the court.

The contract in this case described the property to be conveyed as “that certain business known as Depot Package Store, located at 4280 Lawrenceville Hwy, N.W.[,] Lilburn, the County of Gwinnett, State of Georgia 30247.” The contract neither contained nor referenced any tax plat, deed, or other detailed description of the property’s boundaries. Nevertheless, the property’s postal address was a legally sufficient description because it referred to a definite parcel whose boundaries presumably could be established through extrinsic sources. We note that Yi does not argue — much less present any evidence showing that — there was any confusion regarding which property was being sold or what its boundaries were. We also note that Swan Kang did not seek specific performance of the contract. Thus, to survive summary judgment, Swan Kang was not required to present parol evidence of a more precise description of the land. It is enough that the postal address in the contract identified the tract such that parol evidence could, if necessary, define its boundaries with more precision.

Decided April 21, 2000

David W. Graybeal, Jr., for appellant.

Michael Kessler, for appellee.

4. Finally, Yi argues that she properly exercised her right to cancel the agreement because the store’s sales volume was less than Swan Kang had represented. Pretermitting whether the provision Yi cites would allow her to cancel the contract for that reason, there is a factual dispute as to why she chose to cancel. In her affidavit, Yi states that she had observed the store for two days and determined that “there was no way the sales represented by the plaintiff could be accurate.” But the notice she sent to Kang said that she was concerned about a competing business; it said nothing about Swan Kang’s sales volume. Because a jury could conclude that Yi never actually verified Swan Kang’s sales volume, Yi is not entitled to summary judgment on this ground.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       OCGA § 9-11-56; AAA Truck Sales v. Mershon Tractor Co., 239 Ga. App. 469 (521 SE2d 403) (1999).

        Murray v. Fitzgerald Convenient Centers, 239 Ga. App. 799 (521 SE2d 915) (1999).

       Kang made no changes to the earnest money provisions.

       OCGA § 13-6-7.

        Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976).

        Joyce’s Submarine Sandwiches v. Cal. Pub. Employees’ Retirement System, 195 Ga. App. 748, 749-750 (2) (395 SE2d 257) (1990).

        Jamsky v. HPSC, Inc., 238 Ga. App. 447, 449 (519 SE2d 246) (1999).

       See Joyce’s Submarine Sandwiches, supra at 751 (defaulting party failed to carry burden of showing that liquidated damages provision was a penalty where it “presented no evidence on whether the injury caused was difficult or impossible to estimate accurately”).

       258 Ga. 808 (375 SE2d 222) (1989).

       The provision in Liberty Life stated as follows: “In the event buyer elects not to close this contract on or before the specified closing date, then in such event the earnest money will be forfeited as full liquidated damages to seller.” Id.

       Id. at 809.

        Daniels v. Johnson, 191 Ga. App. 70, 72 (1) (381 SE2d 87) (1989).

        Liberty Life, supra at 809.

        Bell v. Sasser, 238 Ga. App. 843, 844 (520 SE2d 287) (1999).

        Gill v. B & R Intl., 234 Ga. App. 528, 531 (1) (b) (507 SE2d 477) (1998).

       See, e.g., Hennessey v. Froehlich, 219 Ga. App. 98, 101 (464 SE2d 246) (1995) (summary judgment inappropriate where evidence conflicts as to whether there was a meeting of the minds).

        McCumbers v. Trans-Columbia, 172 Ga. App. 275, 277 (322 SE2d 516) (1984).

        Crawford v. Verner, 122 Ga. 814, 816 (1) (50 SE 958) (1905).

       Id.

        McCann v. Miller, 177 Ga. App. 53, 54 (2) (338 SE2d 509) (1985).

       The contract stated that “[s]eller agrees to sell and purchaser agrees to purchase all that certain tract or parcel of land as more particularly described in Exhibit ‘A’ attached hereto and by this reference made a part hereof.” Exhibit “A,” however, was not attached to the contract, and in fact, there is no evidence that Exhibit “A” ever existed.

       See Romanik v. Buitrago, 153 Ga. App. 886 (267 SE2d 301) (1980) (description of property was adequate even though it identified condominium to be sold only as “3200 Clairmont Drive,” which was the address for the whole complex).

       Compare Plantation Land Co. v. Bradshaw, 232 Ga. 435 (207 SE2d 49) (1974).

       See Romanik, supra at 887-888.

       The provision is as follows: “Purchaser’s verification of annual sales [of] $1.30 million should be allowed by the seller. The period of the verification would be within two weeks after the date of acceptance of the agreement.”

       See Re/Max Exec. v. Vacalis, 234 Ga. App. 659, 661 (2) (507 SE2d 235) (1998).


text:
    A00A0445.
    KERSEY v. THE STATE.
    (534 SE2d 428)
   Ruffin, Judge.

A jury found Teresa Marie Kersey guilty of driving under the influence, obstruction of a law enforcement officer, fleeing to elude a police officer, no proof of insurance, and failure to stop at a stop sign. Kersey challenges the sufficiency of the evidence. She also contends the trial court erred in denying her motion in limine. For reasons that follow, we affirm in part and reverse in part.

1. In three enumerations of error, Kersey challenges the sufficiency of the evidence. On appeal from a criminal conviction, Kersey no longer enjoys a presumption of innocence, and in reviewing her challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to support the jury’s verdict. We will affirm the convictions as long as there is some evidence, even though contradicted, to support each element of the State’s case.

So viewed, the evidence demonstrates that, while on patrol on May 1, 1999, Dalton Police Officer Michael Neil saw Kersey driving a van and he recognized her as a habitual violator whose driver’s license had been revoked. Neil radioed for assistance and was joined by Officer Greg Bates, who had trainee Mick Holsenbeck in his patrol car. Both Neil and Bates pulled behind the van in their patrol cars, and Neil turned on his flashing lights for Kersey to pull over.

Kersey kept driving, and both Neil and Bates turned on their sirens. Still driving, Kersey motioned for the officers to pass her, and Neil pulled in front of the van. Neil slowed down in an attempt to stop Kersey, but when she almost rear-ended his patrol car, he pulled behind the van again.

As Neil followed Kersey, he watched her drive through two stop signs. Kersey reached her house and pulled into her driveway, and Bates pulled in behind her. Kersey put the van in reverse and rammed Bates’ patrol car. She then continued to the top of her driveway and parked.

Neil and Bates followed on foot and ordered Kersey to exit the van. Kersey began cursing at the officers, telling them that “she hadn’t done anything.” When the officers opened the van door, they noticed a “very strong” odor of alcohol. An alco-sensor test showed that she had alcohol in her system. Neil asked Kersey if she had been drinking, and she responded that she was not drunk, but was on medication. According to the officers, Kersey’s speech was slurred, and her eyes were bloodshot.

Neil read Kersey her implied consent rights, and she consented to chemical testing. She was handcuffed, put in the back of Neil’s patrol car, and taken to a hospital. At the hospital, Kersey refused to provide urine or blood samples for testing. According to nurse Lynn Richardson, Kersey, who smelled of alcohol, hurled obscenities at the officers and threatened them. Neil testified that Kersey threatened “to kick [him] in the nuts.” Sheriffs Deputy Patrick Hayes, who was working at the hospital as a public safety officer, also testified that Kersey “was using profane and abusive language, [and] making threats toward the police officer.” Following this incident, Kersey was indicted for two counts of aggravated assault for ramming the patrol car that Bates and Holsenbeck had exited; two counts of obstruction of a law enforcement officer for ramming the car; driving under the influence; fleeing to elude a police officer; habitual violator; no proof of insurance; and two counts of failing to stop at a stop sign. Kersey pled guilty to the habitual violator charge. The trial court directed a verdict on one count of failure to stop, and the jury found Kersey guilty of one count of obstruction, driving under the influence, fleeing to elude, no proof of insurance, and the other failure to stop charge. The jury acquitted her of the remaining charges.

(a) On appeal, Kersey contends that the evidence was insufficient to support the jury’s guilty verdict on obstruction of a law enforcement officer. We disagree. The evidence that Kersey backed her van into Bates’ patrol car is sufficient to sustain her conviction for obstruction. At trial, Kersey testified that the poor condition of the van caused it to roll backward and that she did not intentionally ram the patrol car. Thus, she asserts that she cannot be convicted of obstruction. The jurors were aware of Kersey’s assertion and the evidence supporting it, but obviously disbelieved it, and we will not reweigh the evidence on appeal.

(b) Kersey also contends that the evidence was insufficient to support her driving under the influence conviction. Again, we disagree. The evidence that Kersey ran a stop sign, failed to stop her car until she reached her house, ran into Bates’ patrol car, smelled of alcohol, and was belligerent toward the arresting officers amply supports the jury’s verdict.

(c) Kersey contends that the evidence was insufficient to sustain her conviction for no proof of insurance. The burden is on the State to prove beyond a reasonable doubt each element of the offense charged. Accordingly, under OCGA § 40-6-10, the State bears the burden of proving that Kersey did not have proof of insurance coverage in her van. We agree that the evidence was insufficient to prove this offense.

The record does not indicate that any law enforcement officer ever asked Kersey about insurance. We have held that OCGA § 40-6-10 “does not require that an officer ‘request’ an insurance card in order to prosecute a driver for no proof of insurance.” But there must be some evidence from which it can reasonably be inferred that the person charged did not have proof of insurance. Here, there is no such evidence. Although Neil testified that he found an empty prescription bottle in Kersey’s purse and a full 12-pack of beer in the van, nothing in his testimony suggests that he was looking for proof of insurance when he found these items or that Kersey ever declined to provide such proof. Accordingly, Kersey’s conviction for no proof of insurance cannot stand.

Decided April 21, 2000.

Avrett, Ponder & Withrock, William B. Barnwell, for appellant.

Kermit N. McManus, District Attorney, Dixon A. Lackey III, Assistant District Attorney, for appellee.

2. Kersey maintains that the trial court erred in denying her motion in limine. Shortly before trial, Kersey pled guilty to the habitual violator charge. She then moved to exclude any evidence that she had been charged with being a habitual violator and to have the indictment redacted to remove that charge. The State argued this charge in the indictment was admissible as part of the “res gestae.” The trial court agreed with the State and refused to redact the indictment. On appeal, Kersey argues that presenting the unredacted indictment to the jury was so prejudicial as to warrant reversal.

Pretermitting whether the trial court should have redacted the indictment, we find no cause for reversal. Neil, who testified that he attempted to stop Kersey because he recognized her as a habitual violator, was clearly authorized to testify about this because his testimony explained his conduct. Indeed, although Kersey initially moved to exclude Neil’s testimony on this point, she does not challenge its admission on appeal. Under these circumstances, we fail to see how Kersey was prejudiced by the habitual violator charge in the indictment as any such evidence was cumulative of Neil’s testimony.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Ellington, J., concur.

        Enloe v. State, 239 Ga. App. 513 (1) (520 SE2d 925) (1999).

        Kellibrew v. State, 239 Ga. App. 783 (1) (521 SE2d 921) (1999).

       See Miller v. State, 226 Ga. App. 133, 134 (2) (486 SE2d 368) (1997).

        Havron v. State, 234 Ga. App. 413, 414 (1) (506 SE2d 421) (1998).

       See Moore v. State, 234 Ga. App. 332, 334 (3) (c) (506 SE2d 685) (1998).

       OCGA § 16-1-5.

        Moore, supra at 333 (2).

       Compare id.

       See Barnes v. State, 163 Ga. App. 62 (1) (293 SE2d 717) (1982) (“circumstances connected with am arrest are admissible as a part of the res gestae”).

       See Lewis v. State, 179 Ga. App. 121, 123 (4) (346 SE2d 70) (1986).


author: McMurray, Senior Appellate Judge.

text:
    A00A0880.
    MERRITT v. CITY OF WARNER ROBINS et al.
    (534 SE2d 149)
   McMurray, Senior Appellate Judge.

Appellee-defendant City of Warner Robins, by and through its Mayor and Council and John H. Lucas (the “City”), approved a request to annex and rezone a parcel of real property owned by Lucas. Appellant-plaintiff Lamar M. Merritt thereafter brought this action for injunctive relief seeking to “prohibit[ ] and prevent[ ] the City and Lucas from acting upon or enforcing any permits or rights granted by virtue of the annexation and rezoning.” The superior court later granted summary judgment to the City finding that the plaintiff whose property was contiguous to the Lucas property lacked standing to challenge the City’s rezoning decision in that he failed to demonstrate that he met the “substantial interest-aggrieved citizen” test for standing to challenge. See Dunaway v. City of Marietta, 251 Ga. 727, 728 (1) (308 SE2d 823); Macon-Bibb County Planning &c. Comm. v. Vineville Neighborhood Assn., 218 Ga. App. 668, 669 (1) (462 SE2d 764).

In granting summary judgment to defendant, the superior court recognized that any zoning action necessarily changes the character of a neighborhood in some degree, but nonetheless found that the evidence showed only that the “damages complained of are an unavoidable result of normal, urban development.” See Lindsey Creek Area Civic Assn. v. Consolidated Govt. of Columbus, 249 Ga. 488, 491 (292 SE2d 61). Noting that the plaintiff offered his own testimony alone to support his claim that the rezoning of the Lucas property from R-l to R-3 would disturb the property’s initial character, the superior court found that plaintiff had not supported his predictions as to increased traffic and crime by “any expert testimony or proffer that he will ‘bear the brunt of the changed condition.’ AT&T Wireless PCS, Inc. v. Leafmore Forest Condominium Association of Owners, 235 Ga. App. 319, 321 [(1) (509 SE2d 374)] (1998).” The court also pointed out: (1) that a homeowner’s sole opinion as to diminished property value standing alone does not satisfy the “aggrieved citizen test for standing[,] Lindsey Creek Area Civic Association v. Consolidated Government of Columbus, Georgia, 249 Ga. [at] 492, [supra]”; and (2) that Georgia law does not recognize a claim for special damages based only upon traffic congestion. Dunaway v. City of Marietta, 251 Ga. at 728 (1), supra. While we find no grounds to reverse the superior court’s findings, Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), we are unable to reach them for lack of jurisdiction even if such grounds for reversal existed.

The plaintiff filed the instant direct appeal under OCGA § 5-6-34 (a), contending that he appealed from the final judgment of the superior court. Thereafter, the City moved to dismiss, arguing the plaintiff appealed from a decision of the superior court in a zoning case as to which an application is required. Trend Dev. Corp. v. Douglas County, 259 Ga. 425-426 (1) (383 SE2d 123) (zoning case appeals require application for discretionary review for status, in effect, as court decisions reviewing administrative agency decisions within the meaning of OCGA § 5-6-35 (a) (1)).

Decided April 21, 2000.

Phillips & Phillips, Arthur L. Phillips, for appellant.

James E. Elliott, Jr., Roy W. Griffis, Jr., for appellees.

Because plaintiff joined his action for injunctive relief with an appeal from a zoning decision, we conclude that the trial court’s order comes within the purview of OCGA § 5-6-35 (a) (1), requiring the grant of an application for discretionary appeal under OCGA § 5-6-35 (b) in order to confer this Court’s jurisdiction in the case sub judice. Id.; compare Harrell v. Little Pup Dev. & Constr., 269 Ga. 143, 144 (1) (498 SE2d 251) (direct appeal lies from suit in superior court seeking enforcement of zoning decision rather than review thereof). Where, as here, the discretionary appeal procedure provided in OCGA § 5-6-35 is applicable, “we have no jurisdiction to consider [the] appeal. Botts v. Givens, 223 Ga. App. 139 (476 SE2d 816); Boyle v. State of Ga., 190 Ga. App. 734 (380 SE2d 57).” Serpentfoot v. Salmon, 225 Ga. App. 478 (483 SE2d 927). Though we note that the City withdrew its motion to dismiss without objection at oral argument, subject matter jurisdiction cannot be conferred by the consent of the parties. OCGA § 15-1-2; Langston v. Nash, 192 Ga. 427, 429 (2) (15 SE2d 481). A discretionary appeal not having been sought as required, the instant appeal must be and is dismissed for want of jurisdiction.

Appeal dismissed.

Johnson, C. J., and Phipps, J., concur.


author: Andrews, Presiding Judge.

text:
    A00A0389.
    KIRKLAND v. PIONEER MACHINERY, INC. et al.
    (534 SE2d 435)
   Andrews, Presiding Judge.

Richard Kirkland appeals from the trial court’s grant of summary judgment to Pioneer Machinery, Inc. and Richard Harrelson. Kirkland claims the trial court erred because a jury question remains as to whether Kirkland justifiably relied on Harrelson’s fraudulent representations that he was not going to be fired. Because the promises upon which Kirkland claims he relied were unenforceable, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

This case arose when Kirkland, who was a service manager at Pioneer, went to Harrelson, his supervisor, to request time off to close on a house he was buying. Kirkland states that he asked Harrelson, “How am I doing?” because he did not want the financial obligation of a house if he were going to be fired from his job. Kirkland admits that Harrelson did not assure him that he would be able to continue working for Pioneer but points out that Harrelson did not tell him he would not be working there.

Kirkland closed on the house and was fired a little over three weeks later, on July 24, 1997. Contrary to the assertions in Kirkland’s brief, we find no evidence in the record that Harrelson knew Kirkland would be fired when he talked to him on June 30. The only evidence in the record, excepting the allegations in Kirkland’s complaint, is Harrelson’s deposition testimony that he “had no intentions of letting him go on the 30th.” Moreover, Harrelson stated that he interviewed Kirkland’s replacement about 15 days before Kirkland was fired on July 24, 1997, which would have been after the conversation on June 30, and Kirkland has come forward with no evidence to rebut Harrelson’s deposition testimony.

In any event, even if Kirkland can show that Harrelson kept silent in spite of his knowledge that Kirkland was going to be fired, he still has no claim against Pioneer and Harrelson. The law in Georgia is well settled that the employer is entitled to summary judgment when the employee raises a claim of fraud.

Although actionable fraud cannot be based on statements and promises as to future events, there is an exception to this proposition, which is that fraud may be predicated on a promise made with a present intention not to perform. Wheeling v. Ring Radio Co., 213 Ga. App. 210, 211 (444 SE2d 144) (1994). That is what Kirkland argues here, that Harrelson kept silent in response to his questions, knowing that Kirkland would be fired.

But, this exception cannot be applied in this case because the promises upon which Kirkland claims he relied were unenforceable even absent any fraud at the time of their utterance because the underlying employment contract, being terminable at will, is unenforceable. Ely v. Stratoflex, 132 Ga. App. 569, 571-572 (208 SE2d 583) (1974).

Decided April 25, 2000.

Rodney L. Allen, for appellant.

Kirbo & Herndon, Thomas L. Kirbo III, for appellees.

In Ely, the employee claimed fraud because the employer made several promises to him which the employer knew, at the time they were made, would not be fulfilled. Id. at 571. Ely and its progeny have consistently held that this type of fraud claim in an employer-employee relationship must fail. See, e.g., Wheeling, supra at 211 (summary judgment granted to employer on fraud claim even if employee could show that employer knowingly misrepresented to employee that he was guaranteed employment for three years); Alston v. Brown Transport Corp., 182 Ga. App. 632 (356 SE2d 517) (1987) (summary judgment granted to employer on fraud claim even if employer did not intend to honor assurances that dockworkers would be promoted after 90 days); Jacobs v. Ga.-Pacific Corp., 172 Ga. App. 319 (323 SE2d 238) (1984) (employer’s oral promise that employment would be permanent did not afford the employee a remedy in fraud because the underlying employment contract was terminable at will).

Kirkland attempts to argue that this situation is different and Pioneer was equitably estopped from firing him because of the intentional misrepresentations of Harrelson as to Kirkland’s current employment status. But, there is no contention that Kirkland was not still employed at Pioneer at the time of the conversation. Moreover, Kirkland cites to no case law on point in support of this proposition, and we find none.

Thus, Kirkland’s argument that equitable estoppel under OCGA § 24-4-27 applies must fail. “Estoppel ... is not a cause of action under Georgia law. . . . Without some proper legal cause of action, establishing all the elements of equitable estoppel will not entitle plaintiff to relief.” (Citations and punctuation omitted.) Wilson v. Keheley & Co., 177 Ga. App. 769, 770 (2) (341 SE2d 245) (1986). As discussed above, even assuming fraudulent misrepresentation by Harrelson, there is no cause of action because the underlying contract was terminable at will and, therefore, unenforceable. Ely, supra at 572.

Accordingly, there was no error. The trial court properly granted summary judgment to Pioneer and Harrelson.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.