author: Dillard, Judge.

text:
    A10A1814.
    MASTER CRAFT FLOORING et al. v. DUNHAM.
    (708 SE2d 36)
   Dillard, Judge.

In this workers’ compensation action, claimant Michael Dun-ham sought a resumption of disability benefits from his former employer, Master Craft Flooring, and its insurer, Companion Property & Casualty (collectively, “Master Craft/Companion”), alleging that he had suffered a change in condition for the worse. The administrative law judge (“ALJ”) issued an award granting Dun-ham’s claim, which the appellate division of the State Board of Workers’ Compensation (the “Board”) reversed. The superior court then reversed the Board and reinstated the ALJ’s award, and this Court then granted Master Craft/Companion’s application for discretionary review. And because the superior court applied the incorrect standard of review in reversing the Board’s award, for which we conclude there was at least some evidence to support, we are constrained to reverse.

Our case begins in November 2004, when Dunham, a construction worker, was involved in a motor vehicle accident while working for Master Craft. Dunham sustained a compensable injury to his neck, for which Master Craft’s former insurer was liable. After missing approximately six weeks of work, Dunham returned to light-duty work with Master Craft, which was conditioned upon the restriction that he not lift more than 20 pounds. In May 2007, while Master Craft was insured by Companion, Dunham suffered a second work-related neck injury, and shortly thereafter resigned from Master Craft. He was subsequently hired by a new employer, the Tub Doctor.

Following a hearing in December 2007, the ALJ determined that Dunham’s May 2007 injury was a compensable aggravation of the pre-existing November 2004 injury, and ordered Master Craft/ Companion to (1) provide medical treatment until the aggravation resolved, and (2) pay temporary total disability (“TTD”) benefits for the brief period of time that Dunham was directed by his doctor not to work. The ALJ further concluded that Dunham’s resignation from Master Craft’s employ was voluntary and otherwise unrelated to his neck injury. The Board accepted the ALJ’s award in all respects.

In September 2008, Dunham filed a new notice of claim, prompting the ALJ to conduct a second hearing in April 2009. Dunham alleged that he had since been laid off from the Tub Doctor in January 2008, but apparently did not seriously contest that his termination was unrelated to his injury. He nonetheless asserted an economic change in condition for the worse, contending that he was being denied suitable employment elsewhere because of the May 2007 aggravation of his injury. Specifically, he sought resumption of TTD benefits from June 2008 and continuing thereafter. Master Craft/Companion contested Dunham’s claim on the grounds that the May 2007 aggravation for which it had been liable had subsided, and that any current disability suffered by Dunham was due either to his initial November 2004 injury or an aggravation of that injury arising out of his subsequent employment, neither of which would render Master Craft/Companion liable. In support of this defense, Master Craft/Companion submitted a video recording filmed by a private investigator, which it contended showed Dunham working without limitation on March 18, 20, and 25, 2009.

In June 2009, the ALJ issued an award in which it concluded that (1) Dunham had undergone a change in condition for the worse when he ceased working for the Tub Doctor in January 2008, and (2) Dunham was still suffering from the limitations resulting from the May 2007 neck injury, which the ALJ inferred had not returned to its pre-aggravation condition. While acknowledging some conflicts in the evidence, the ALJ based its conclusion primarily on the medical evidence, specifically noting a March 2009 report from one of Dunham’s doctors who opined that Dunham “has not returned to his pre-accident baseline.” The ALJ further determined that Dunham had engaged in a diligent job search, crediting Dunham’s testimony that he looked for work “every day,” but was denied suitable employment because of his aggravated injury. Based upon the videotaped evidence (filmed more than a year after Dunham’s lay-off date), however, the ALJ deduced that Dunham had “a full change in condition for the better” as of the March 18, 2009 video. The ALJ therefore awarded Dunham TTD benefits paid by Master Craft/ Companion from January 2008 through March 18, 2009.

Upon reviewing the ALJ’s award, however, the Board concluded that the ALJ’s findings of fact and conclusions of law were not supported by a preponderance of the evidence and substituted its own factual findings. The Board determined Dunham’s testimony to be “vague, evasive, and contradicted” by other evidence, and focused specifically on the videotaped evidence, which it concluded showed Dunham engaged in physical labor while “ exhibit [ing] virtually no physical restrictions.” The Board further weighed heavily the fact that Dunham’s supervisor at the Tub Doctor testified that he was unaware that Dunham was injured or operating under any physical limitations, as well as Dunham’s own testimony that he was under no restrictions in 2008 greater than the 20-pound lifting limitation that had first been imposed on him following his original 2004 injury. The Board also disregarded the March 2009 doctor’s report that the ALJ found persuasive, after concluding that it was “problematic at best” due to the doctor’s “ambivalent” responses as to whether Dunham’s current physical condition related to the original November 2004 injury or the May 2007 aggravation of that injury. Based upon this assessment of the evidence, the Board concluded that Dunham’s neck injury had returned to its pre-aggravation physical condition. Finally, the Board rejected Dunham’s testimony that he looked for work “every day,” pointing specifically to the fact that Dunham offered no evidence concerning where or for what jobs he had applied, the suitability of those jobs, or the outcome of those applications.

On appeal, the superior court reversed the findings of the Board after concluding that “the award of the [ALJ] is supported by a preponderance of competent and credible evidence contained within the records.” Master Craft/Companion now challenges the superior court’s order, asserting that the court did not give proper deference to the Board’s findings. We agree, and reverse the superior court’s order.

In Georgia, a workers’ compensation claimant who has previously received income-disability benefits for a compensable job-related injury can institute a proceeding to modify a prior final decision due to “a change in condition,” which includes “a change in the wage-earning capacity, physical condition, or status of an employee . . . after the date on which the wage-earning capacity, physical condition, or status of the employee . . . was last established by award[.]”

In the case of a claimant who seeks to resume compensation benefits due to a change in condition after his employment has been terminated for reasons unrelated to his job-related injury, that claimant must prove, by a preponderance of the evidence, that he “suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination.” After receiving the evidence, the ALJ may, in its discretion, draw reasonable inferences that, “despite the claimant’s good-faith efforts, his . . . inability to obtain suitable employment was proximately caused by the continuing disability.”

Thereafter, the Board—in reviewing an ALJ’s grant or denial of workers’ compensation benefits—is authorized “to vacate an ALJ’s findings of fact and conclusions of law as unsupported by a preponderance of the competent and credible evidence, and to substitute its own alternative findings.” In doing so, the Board is likewise authorized “to assess witness credibility, weigh conflicting evidence, and draw different factual conclusions from those reached by the [ALJ] who initially heard the dispute.” Finally, the Board is also permitted to disregard factual inferences drawn by the ALJ and to substitute its own in place of those inferences.

In contrast, “neither the superior court nor this Court has any authority to substitute itself as a factfinding body in lieu of the [Board].” As a reviewing court, our role is not to return to the findings of the ALJ and examine whether that decision was supported by a preponderance of the evidence, but is instead to review the Board’s award for the sole purpose of determining whether its findings are supported by any record evidence. If we answer this question in the affirmative, the Board’s findings are conclusive and binding, regardless of whether we would have reached the same result if given the opportunity to weigh the evidence in the first instance.

Decided March 16, 2011

Saveli & Williams, Mark S. Gannon, Andrea G. Meucci, for appellants.

Robert L. Crowe, for appellee.

Within the context of this narrow legal framework, it is clear that the superior court erred in reversing the Board’s award based upon its determination that the ALJ’s findings were supported by a preponderance of the evidence. And while we may not disagree with the superior court’s conclusion in that regard, that is not the inquiry facing this Court, nor is it one we are authorized to consider. Instead, the only issue before us is whether there is any record evidence to support the Board’s award. To this question, we are constrained to answer yes. Accordingly, the judgment of the superior court is reversed.

Judgment reversed.

Barnes, P. J., and Blackwell, J., concur.

       Pursuant to OCGA § 34-9-1 (4), a compensable injury “shall include the aggravation of a preexisting condition by accident arising out of and in the course of employment, but only for so long as the aggravation of the preexisting condition continues to be the cause of the disability; the preexisting condition shall no longer meet this criteria when the aggravation ceases to be the cause of the disability.”

        See generally Beers Constr. Co. v. Stephens, 162 Ga. App. 87, 89-91 (2) (290 SE2d 181) (1982) (discussing the assessment of liability when a claimant has worked for more than one employer).

       The record does not explain the discrepancy between Dunham’s notice of claim, in which he sought TTD benefits beginning in June 2008, with his actual lay-off date, which occurred on January 30, 2008. The ALJ did, however, acknowledge Dunham’s testimony that he had earned approximately $3,000 from working odd jobs, and instructed Master Craft/ Companion to deduct the same from Dunham’s TTD benefits.

       The ALJ also acknowledged this discrepancy but concluded that even if Dunham’s supervisor was unaware of his impaired condition, that alone did not counter the existence of his condition, which the ALJ found was otherwise established by the medical evidence.

       OCGA § 34-9-104 (a) (1).

        Maloney v. Gordon County Farms, 265 Ga. 825, 827-28 (462 SE2d 606) (1995) (“The requisite economic change in condition exists when the employee is able to demonstrate that, as a proximate result of his previous work related injury, he is unable to secure suitable employment elsewhere.” (citation and punctuation omitted)).

        Id. at 828. In adopting the standard set forth supra, our Supreme Court overruled prior case law which had imposed upon a claimant the additional burden of proving that he was refused employment specifically because of a continuing disability. Id.

        Owens-Brockway Packaging u. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495) (1997); see OCGA § 34-9-103 (a) (“The findings of fact made by the [ALJ] in the trial division shall be accepted by the [Board] where such findings are supported by a preponderance of competent and credible evidence contained within the records.”); Bankhead Enters, v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997) (“ [I]f after assessing the evidence of record, the [Board] concludes that the award does not meet [OCGA § 34-9-103 (a)’s] evidentiary standards, the [Board] may substitute its own alternative findings for those of the AU, and [may] enter an award accordingly.”); Logan v. St. Joseph Hosp., 227 Ga. App. 853, 858 (2) (490 SE2d 483) (1997) (“Evaluating the competency and credibility of the evidence, the [Board] performs a hybrid review function and decides whether the greater weight lies with the ALJ’s findings.” (punctuation omitted)).

        Lowndes County Bd. of Comm’rs v. Connell, 305 Ga. App. 844, 844 (701 SE2d 227) (2010); see Bankhead Enters., 267 Ga. at 508 (“The [Board] is clearly authorized under [OCGA § 34-9-103 (a)] to make findings of fact and conclusions of law.” (citation and punctuation omitted)); L.C.R Chems. v. Strickland, 221 Ga. App. 742, 743 (472 SE2d 471) (1996) (“The Board is the sole judge of the evidence, of the credibility of the witnesses, and as to what evidence it will credit as the basis for an award.” (citation and punctuation omitted)).

        Medders v. Smith, 245 Ga. App. 323, 325 (1) (537 SE2d 153) (2000) (“The [Board] is a factfinder, and as such, it is authorized to draw a different inference from that of the ALJ.”); Eisner v. Bulk Equip. Mfg., 229 Ga. App. 529, 531 (494 SE2d 304) (1997) (“[T]he [Board] is a factfinder and, as such, may draw inferences by virtue of this role.”) (Beasley, J., concurring specially).

        Medders, 245 Ga. App. at 326 (1) (footnote omitted); Worthington Indus, v. Sanks, 228 Ga. App. 782, 783-84 (2) (492 SE2d 753) (1997) (“The superior court and this Court must strongly construe [factual] inferences to uphold the award of the [Board].”); see Logan, 227 Ga. App. at 859 (3) (“It is axiomatic that the findings of the [Board], when supported hy any evidence, are conclusive and binding, and that neither the superior court nor this [C]ourt has any authority to substitute itself as a fact finding body in lieu of the Board.” (citation and punctuation omitted)).

        Owens-Brockway Packaging, 227 Ga. App. at 111 (“If the [Board’s] reweighing of the evidence led to a conclusion different from that reached by the ALJ, the superior court is obligated to affirm it if there is any evidence to support it.”); see Risner, 229 Ga. App. at 531 (“[W]hether or not a later appellate court would view the ALJ’s findings as supported by a preponderance, the [Board’s] substituted findings must be accepted if there was evidence to support them.” (citation and punctuation omitted)) (Beasley, J., concurring specially).

        Georgia-Pacific Corp. v. Wilson, 240 Ga. App. 123, 124-25 (1) (522 SE2d 700) (1999) (“When supported by any evidence, findings of fact by the Board are conclusive and binding on reviewing courts, and judges lack authority to set aside an award based on disagreement with the Board’s conclusions.”); United Family Life Ins. Co. v. Sasser, 224 Ga. App. 871, 871 (482 SE2d 491) (1997) (“Regardless of what our findings would be if we were the factfinders, upon appeal to the superior court and this Court, the evidence will be construed in a light most favorable to the party prevailing before the [B]oard, and every reasonable factual inference and presumption of validity of award should be indulged in by the reviewing court.” (citation and punctuation omitted)).

        See generally Risner, 229 Ga. App. at 531 (“The [Board] was authorized to draw a different inference [than the AU] from the evidence of [claimant’s] physical condition and unsuccessful job search.”) (Beasley, J., concurring specially); Fulton County Bd. of Educ. v. Taylor, 262 Ga. App. 512, 514-15 (2) (586 SE2d 51) (2003) (Board’s determination that claimant had failed to conduct a diligent job search was binding on superior court and should have been affirmed); Sasser, 224 Ga. App. at 872 (1) (superior court erred by failing to construe the evidence in the light most favorable to the Board’s award that claimant’s change in economic condition was not caused by her compensable injury); T. V. Minority v. Chaffins, 223 Ga. App. 495, 496 (1) (479 SE2d 373) (1996) (superior court erred by substituting its judgment for that of the Board and rejecting the Board’s findings that claimant had not engaged in diligent job search); L.C.P. Chems., 221 Ga. App. at 743-44 (in the face of conflicting evidence, superior court was not authorized to draw inferences different than those drawn by the ALJ/Board as to the diligence of claimant’s job search); see also Lockheed Missiles &c. Co. v. Bobchak, 194 Ga. App. 156, 158 (1) (390 SE2d 82) (1990) (superior court cannot substitute its judgment for that of the Board when the evidence will support two different conclusions).


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A10A1868.
    WRIGHT v. VIF/VALENTINE FARMS BUILDING ONE, LLC et al.
    (708 SE2d 41)
   Adams, Judge.

In this dispute over a property line that involves the location of two different alleged “hog wire” fences, J. B. Wright brought suit alleging trespass against three groups of defendants associated with the neighboring property: the prior owners, the alleged trespassers who developed the property, and the subsequent purchaser/occupant. Wright appeals three orders entered by the trial court: summary judgment in favor of the prior owners; Spoliation Order No. 1, in which the court dismissed all claims against the current occupant of the property; and Spoliation Order No. 2, in which the court sanctioned Wright by requiring the jury be instructed on a rebut-table presumption arising from spoliation in his claim against the developers.

1. We begin with Wright’s appeal of summary judgment in favor of the prior owners of Wright’s neighboring property. 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). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

The basic facts can be summarized. For many years, Dr. Herbert E. Valentine, Jr., and the Wright family owned large contiguous tracts of rural land in Jackson County, with the Wrights located to the east of the Valentines. It is not disputed in this litigation that roughly 1,300 feet of the boundary has a meandering hog wire fence that runs somewhat north-to-south and somewhat straight from Wayne Poultry Road to a certain beech tree stump. In dispute is the position of the boundary running from the beech tree stump to an agreed southern endpoint. The appellees contend the boundary continues on a precisely straight line for 717.10 feet from the beech tree stump to the southern endpoint, and that, as late as the 1990s, a hog wire fence existed along this line. Wright alleges that errors in the Valentine chain of title and associated surveys fail to reflect that beginning at the beech tree stump, the property line runs along or parallel to a different hog wire fence built by his father in the 1950s that curved to the west, carving out a 0.86-acre, crescent-shaped area ending at the southern endpoint, and that this fence existed until the defendants destroyed it, which precipitated this litigation. The first 470 feet or so of the line is the border claimed by current occupant; the remainder is still claimed by Valentine-related interests. Thus the piece of property in dispute is somewhat triangular in shape.

It is undisputed that in 1992, Dr. Valentine sold all of his property to Possum Creek Properties, L.P (“PCP”), a limited partnership controlled by Valentine family members, which eventually decided to create an industrial park on the property. In that regard, in July 2004 PCP agreed to sell a 60.85-acre tract to Grove Street Partners, LLC (“GSP”). The tract at issue did not recognize and extended past the hog wire fence asserted by Wright as the boundary. The sales agreement was later assigned to Valentine Farms Land, LLC (“VFL”). Thus, in April 2005, PCP conveyed the tract to VFL, which, in turn, conveyed its interest to VIF/Valentine Farms Building One, LLC (“VIF”). These three entities — VFL, VIF and GSP — will be collectively referred to as the “Warehouse Development Interests,” and despite their names, none are related to or controlled by the Valentine family. Thus, as of April 2005, neither Dr. Valentine nor the Valentine family owned or controlled any interest in the relevant 60.85-acre tract, although PCP retained parts of Dr. Valentine’s original property. Wright notes that Dr. Valentine signed a “Seller’s Affidavit” in connection with the sale in which he swore that “the lines and corners of the Property are clearly marked and there are no disputes concerning the locations of the lines and corners.”

Construing the disputed facts in favor of Wright, the record shows that beginning on November 2, 2005, in connection with the development of the 60.85-acre tract into a massive warehouse distribution facility, contractors operating on behalf of the Warehouse Development Interests, acting over Wright’s immediate protests, breached and destroyed the hog wire fence claimed by Wright as the southern end of the common boundary, as well as another “zig-zag” fence and trees and other vegetation in the roughly triangular-shaped disputed area. Wright filed suit immediately against VFL, and sought injunctive relief, ejectment, and trespass damages. The court granted a temporary restraining order preventing further cutting or alterations, but, following an evidentiary hearing on November 21, 2005, the court dissolved the temporary order and denied an interlocutory injunction. The court made a preliminary finding that the entire disputed area was part of VIF’s property. The court held, therefore, that “there is not sufficient prospective irreparable damage to warrant the issuance of an interlocutory injunction.” The court ruled that Wright had an adequate remedy at law — damages. Finally, the court forbade Wright from disturbing the disputed area:

During the pendency of this action, the Court hereby ORDERS that the parties adhere to the following guidelines . . . [Wright] shall not traverse across or otherwise disturb Defendant’s property, which is deemed to encompass, for purposes of this Order, the disputed property.

In October 2007, Wright dismissed the action without prejudice but refiled on December 28, adding claims and defendants. He sued all three Warehouse Development Interests, as well as PCR and Dr. Valentine. Wright alleged that after VIF acquired the property from VFL, it continued to grade, backfill, and improve the disputed property, eventually building a warehouse that encroaches upon his property. Wright later added the end user/current occupant of the property — First Industrial Investment, Inc., to which VIF had conveyed the relevant tract on December 28, 2007, after the second lawsuit was filed. Wright alleged that First Industrial was continuing the “trespassory actions” of its predecessors in title. Finally, Wright alleged that Dr. Valentine and PCP were equally liable for the trespasses even though they had sold the property before the trespasses occurred.

Dr. Valentine and PCP moved for summary judgment on the ground that they were not the alleged actual trespassers, that they had relinquished title and control of the property before the trespass, that the alleged actual trespassers were not their agents, and that they could not be liable for the actions of their successors in title. The trial court agreed and granted summary judgment in their favor on May 14, 2009. On appeal, Wright contends the trial court failed to follow controlling precedent and that it rendered “gratuitous findings on disputed material facts. ...”

Wright argues that the movants are subject to liability under Whitaker Acres v. Schrenk, 170 Ga. App. 238 (316 SE2d 537) (1984). In that case, Whitaker Acres, Inc. sold the same property twice, allegedly because of an inadvertent oversight. After the second purchaser graded and excavated the property, Schrenk, the first purchaser, brought suit against the second purchaser and against Whitaker Acres, which argued that it could not be liable because the second purchaser caused the trespass. Id. at 239 (1). This Court held that Whitaker Acres was subject to liability for trespass based on the following law:

“One who procures or assists in the commission of a trespass, or does any act which ordinarily and naturally induces its commission, is liable therefor as the actual perpetrator.” Burns v. Horkan, 126 Ga. 161 (3) (54 SE 946) (1906). Where the trespass results as the consequence of a conveyance purporting to grant an interest in the property to the actual trespasser, “the maker of the instrument might be sued in trespass, because ‘he is the causa causans, the prime mover of the damage to the plaintiff.’ . . . the maker (is) liable in trespass with the actual perpetrator, upon the theory that the maker has put in motion the thing which subsequently induced the party to commit the trespass. The execution of the conveyance amounts to an assertion of the maker’s right to use the property, and is equivalent to counseling and directing the grantee or lessee to commit the trespass.” Burch v. King, 14 Ga. App. 153, 156 (80 SE 664) (1913).

Id.

In this case, the trial court held that Wright’s reliance on Schrenk amounted to a “misreading and overextension” of that decision. The court contended that Wright relied on the theory that “a grantor, by that status alone, may ipso facto be held liable in tort for the trespasses of his grantee (or subsequent grantees).” But Wright did not rely on the simple fact that Dr. Valentine and PCP were merely the predecessors in title to the actual trespassers, and Schrenk does not stand for this proposition. Rather, as shown below, Wright presented unrebutted allegations and evidence that, when construed in his favor for purposes of summary judgment, create an issue of fact as to whether Dr. Valentine and PCP knew or should have known that there were disputes regarding the lines and corners of the southeast corner of the property, both when Dr. Valentine sold his property to PCP and when PCP sold it to VFL, including that it did not include a small sliver of land, part of the disputed property, located right along the boundary with Wright’s property. Thus an issue of fact was raised as to whether Dr. Valentine and PCP knew or should have known that they were conveying property that did not belong to them. Selling property that one does not own to others who then trespass on that land is the basis for liability established in Schrenk. The fact that Dr. Valentine swore in the April 2005 Seller’s Affidavit that the lines and corners were not in dispute merely creates an issue of fact in this regard.

First, Wright alleged that his father and he have had record title to the disputed area since 1940 through their own chain of title. Other than surveys of the Valentine property prepared on behalf of Dr. Valentine and the subsequent owners of his property, all of which allegedly include a critical error, we find no evidence that the appellees have pierced this allegation regarding Wright’s record title. So at a minimum, with regard to the disputed property, Wright has alleged a “claim of right” — i.e., “some claim of title in the sense that the possessor claims the property as his own.” (Citation and punctuation omitted.) Simmons v. Community Renewal and Redemption, 286 Ga. 6 (1) (685 SE2d 75) (2009).

Second, Wright has consistently testified that there has never been a fence south of the beech tree stump along the straight line asserted as the boundary by the Valentines. Moreover, Wright has testified that for many years, including at the time Dr. Valentine acquired his property, he and his father openly and notoriously cleared and cultivated at least part of the disputed area and that, in the 1990s, he dug a drainage ditch on part of the disputed area, all without any permission from Dr. Valentine or PCE And even Dr. Valentine alleges that Wright tore down the alleged Valentine fence without asking permission. Finally, the property corner claimed by the appellees, which was newly established when PCP subdivided its property, falls in the field cultivated by Wright. Thus, there is an issue of fact as to whether Valentine and PCP were on notice of an adverse claim by Wright to the disputed area. See generally Simmons, 286 Ga. 6 (1) (adverse possession claimant “must show possession not originated in fraud that is public, continuous, exclusive, uninterrupted and peaceable, and accompanied by a claim of right”); McDonald v. Taylor, 200 Ga. 445, 451-452 (1) (37 SE2d 336) (1946) (regarding evidence required to put one on notice of an adverse claim).

Third, in 1969, shortly after acquiring his property, Dr. Valentine quitclaimed to Liza Wright 7.38 acres of land, including part of the area in dispute in this case, located on what Dr. Valentine considered to be his side of the property line. Dr. Valentine’s property was resurveyed following this devise, and the new survey reflects the loss of the 7.38 acres; it also shows a different direction on the final survey call in the disputed area. Later, when Liza Wright passed away, Dr. Valentine attempted to purchase her property, including the 7.38 acres. But, allegedly because of another error, he allegedly failed to purchase a small portion of the property located along the Valentine-Wright boundary. And there is no evidence that Dr. Valentine or PCP ever reacquired that portion of the property. Yet PCP purports to have sold this land to the Warehouse Development Interests based on a resurvey of the boundary line. Highlighting this point, the Warehouse Development Interests now claim this sliver of land both by conveyance and, in the alternative, by way of Dr. Valentine’s and their own adverse possession of this area, “particularly, that sliver.” Moreover, the various surveys obtained by either Dr. Valentine or PCP show the last survey call for the boundary in at least three different positions, some ending at an iron pin and one not doing so.

In summary, construed in favor of Wright, there is some evidence that Dr. Valentine and PCP sold land that they did not own. Liability can attach regardless of whether Dr. Valentine and PCP relied on professional surveys. Although reliance on a survey may eliminate a claim of wilful trespass and punitive damages, it does not absolve the trespasser from damages for trespassing on his neighbor’s property. See Lanier v. Burnette, 245 Ga. App. 566, 570 (3) (538 SE2d 476) (2000) (defendant liable although he used surveyor to determine where to build fence). See also Page v. Braddy, 255 Ga. App. 124, 126 (564 SE2d 538) (2002) (person causing trespass liable even though he believed himself to be the owner of the land as a result of a surveyor’s mistake).

Accordingly the trial court erred by granting summary judgment in favor of Dr. Valentine and PCP

2. Wright contends the trial court erred with regard to both spoliation orders. He contends there was no competent evidence to support the court’s findings; that the trial court abused its discretion in finding him guilty of spoliation; and that the court abused its discretion with regard to the sanctions awarded. “Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” (Footnote omitted.) Bridgestone/Firestone North American Tire u. Campbell, 258 Ga. App. 767, 768 (574 SE2d 923) (2002). “Where a party has destroyed or significantly altered evidence that is material to the litigation, the trial court has wide discretion to fashion sanctions on a case-by-case basis.” AMLI Residential Properties v. Ga. Power Co., 293 Ga. App. 358, 361 (667 SE2d 150) (2008). “Moreover, we will uphold a trial court’s finding of wilful discovery abuse if there is any evidence to support it.” Bouvé & Mohr, LLC v. Banks, 274 Ga. App. 758, 762 (1) (618 SE2d 650) (2005).

(a) The claim of spoliation arose during the renewed action. On March 22, 2008, during the pendency of the second action, Wright was seen using a backhoe in the disputed area; moving dirt; and hauling hog wire fence to a debris pile.

Following a hearing on the claim of spoliation, the court found that Wright had been ordered, in the first action, not to disturb the disputed area, which placed him on notice that destruction of evidence was prohibited; that Wright disturbed the area; that First Industrial was served with process in the action after the spoliation; that Wright knew that the existence and location of the hog wire fence asserted by the appellees, as well as the existing vegetation and natural features and contours of the property, were important evidence regarding the boundary dispute; that Wright’s actions were wilful and intentional; that First Industrial was prejudiced because it did not have an opportunity after being sued to inspect the property; and that the prejudice to First Industrial could not be cured.

In a separate order, the court made similar findings with regard to the Warehouse Development Interests. In addition to those mentioned above, the court found that removal of any hog wire fence from the disputed area would be crucial to the case; that alteration of the physical features of the property was also relevant to the Warehouse Development Interests’ claim of adverse possession; that Wright removed hog wire fence from the area near the border as well as underbrush and vegetation; and that the Warehouse Development Interests were prejudiced as a result.

The evidence shows that Wright admitted working in part of the disputed area and admitted that his activities were contrary to the court’s order in the original action forbidding him from disturbing that area. He contends that his testimony showed that he did not alter the area in a significant manner and that he did not alter material evidence. But the appellees presented evidence and admissions by Wright to show that he was carrying hog wire fence in the backhoe; that tracks from the backhoe showed it had driven across the disputed area; that Wright was putting hog wire fence in a debris pile along with other hog wire fence taken from other locations; that there had been a hog wire fence along Valentine’s asserted property line at some time in the past; and that Wright may have buried part of that fence in the 1990s. Further, Wright has acknowledged in an affidavit that he learned as early as November 2005 that the defendants claimed there used to be a fence along their asserted line and that he had buried it.

Accordingly, there was some evidence supporting the trial court’s order. It was the trial court’s job to resolve issues of fact regarding the hotly contested issue of spoliation, and we cannot conclude that the finding of spoliation was clearly erroneous.

(b) With regard to the remedies fashioned by the court, we also find no abuse of discretion. As a sanction for spoliation, the trial court dismissed all claims against First Industrial; with regard to the Warehouse Development Interests, it ordered that the jury be instructed as to a rebuttable presumption that the existence of the underbrush, vegetation and hog wire fence would have been harmful to Wright in connection with the Warehouse Development Interests’ defenses. Trial courts have wide latitude to employ remedies such as these, “on a case-by-case basis, considering what is appropriate and fair under the circumstances.” (Punctuation and footnote omitted.) Wal-Mart Stores v. Lee, 290 Ga. App. 541, 545 (1) (659 SE2d 905) (2008).

Wright argues that the court abused its discretion because (1) the defendants already had the opportunity to examine the disputed property during two-and-a-half years of litigation because they were in possession and control of the area; (2) none of the appellees had ever suggested that there was a hog wire fence on the relevant section of their asserted boundary line; (3) his own “innocent” activities on the disputed property were caused by the appellees’ activities on the same property; (4) First Industrial “was the least sympathetic party from the standpoint of any latent equities . . .’’in part because First Industrial bought the property “with its eyes wide open”; (5) First Industrial had owned the land for six months before the alleged spoliation yet failed to inspect the property or dig for old alleged hog wire fencing; and (6) the entire lawsuit began with a massive act of deliberate spoliation by the appellees of the boundary fence claimed by Wright, and that, therefore, it is unfair to penalize him so harshly for his minor actions in the disputed area.

The applicable law provides:

[Wjhen key evidence has been destroyed, exclusion of evidence or dismissal of a case may be warranted. In determining whether such a severe sanction is warranted, the trial court must consider: (1) whether the defendant was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the plaintiff acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.

Decided March 16, 2011

George E. Butler II, John T. Brown, for appellant.

Smith, Gilliam, Williams & Miles, Steven B Gilliam, Roger B. Hatcher, Jr., Orr, Brown & Johnson, E. Wycliffe Orr, Sr., Spence Johnson, McLain & Merritt, M. David Merritt, Blasingame, Burch, Garrard & Ashley, E. Davison Burch, Thomas F. Hollingsworth III, for appellees.

(Footnotes omitted.) Bridgestone!Firestone, 258 Ga. App. at 768-769.

Wright’s own affidavit shows that he knew in 2005 that the appellees contended that a fence existed along their asserted line and that he had buried it. Wright was also on notice not to disturb the disputed area. And the court found that a hog wire fence had existed along the appellees’ asserted boundary at some point in the past. Yet, on May 22, 2008, Wright intentionally disturbed the area and removed pieces of hog wire fence and caused other changes that could not be cured. The court considered the critical nature of the spoliated evidence — evidence of a fence supporting appellees’ claims and evidence of adverse possession of the disputed area. The court distinguished the effect on First Industrial from the effect on the Warehouse Development Interests. The court considered that First Industrial purchased the property in December 2007 with notice of the “adverse rights now or hereafter claimed by J. B. Wright,” but that it was not served in the suit until May 27, 2008, five days after the spoliation events. The court considered that the Warehouse Development Interests had been involved in the litigation and the corresponding discovery for some time and therefore had more of an opportunity to develop their case than First Industrial. Accordingly, the court chose different remedies for each.

We conclude the trial court properly considered the relevant requirements for applying sanctions and weighed the prejudice to the defendants against Wright’s culpability. We conclude that the court imposed sanctions which correspond to its findings. We therefore find no abuse of discretion. See generally Wal-Mart, 290 Ga. App. at 542 (1).

Judgment affirmed in part and reversed in part.

Ellington, C. J., and Mikell, J., concur.

       Dr. Valentine also signed the Limited Warranty Deed from PCP to VFL as the president of the general partner of PCP

       The court made clear, however, that the order “[did] not constitute a final judgment on the merits of any claim made by the parties in this action. Plaintiff and Defendant retain the right to present evidence as to title to the disputed property in accordance with Georgia law.”

       The court described the disputed property as the portion of land lying between the last 470.14 feet of the boundary asserted by the appellees as shown in a certain survey, “and the jagged fence running onto and across the southeastern corner of Defendant’s property on the same survey.”

       Dr. Valentine died on January 6, 2009, during the second suit, and his estate was substituted as a party in his place.

       In their answer, the Warehouse Development Interests asserted, among other things, that title of the disputed area had, alternatively, been acquired by adverse possession.

       The associated limited warranty deed included a “Permitted Exception” of “Adverse rights now or hereafter claimed by J. B. Wright as evidenced by [the Original Action,] now dismissed.”

       Wright admitted that he was in the disputed area with the backhoe digging in a 70-foot area where a ditch is located, in another grassy area in the disputed area, and in a third place in the disputed area where he removed a beaver dam. He also admitted that he put some hog wire fence in a nearby debris pile along with the debris from digging in the ditch.


text:
    A10A1883.
    GORDON DOCUMENT PRODUCTS, INC. v. SERVICE TECHNOLOGIES, INC. et al.
    (708 SE2d 48)
   Adams, Judge.

Appellant Gordon Document Products, Inc. (GDP) brought suit against Service Technologies, Inc. (STI), Jeffrey Layne, Rufus Mosley and Floyd Carr, Jr., d/b/a Service Technologies (hereinafter collectively referred to as defendants) asserting claims for tortious interference, breach of fiduciary duty, breach of employment agreements, defamation, libel and slander per se. The trial court granted summary judgment to defendants on all of GDP’s claims, and GDP appeals.

GDP and STI are competitors engaged in the business of marketing, installing and servicing business machines and related supplies, equipment and merchandise. Layne and Mosley are former GDP employees who left GDP and began working for STI on March 17, 2008, several days after they resigned from GDP While they were employed at GDI] both Mosley and Layne executed employment agreements which contained noncompete restrictive covenants, and the alleged violation of these covenants is the basis of Count 2 of GDP’s complaint. GDP also asserted a claim for tortious interference with contractual relations against STI, alleging that it induced Layne and Mosley to breach their employment contracts with GDP Additionally, GDP alleged that Layne breached his fiduciary duties to GDP by soliciting employees to leave their employment with GDP to work at STI and that STI aided and abetted Layne in this breach. GDP also asserted separate claims for tortious interference with business relations and employment relations, alleging that Layne, individually or on behalf of or in conjunction with STI, induced certain employees to terminate their employment with GDP and used confidential information in order to solicit customers and employees of GDP Lastly, GDP asserted defamation, libel and slander claims against Layne.

1. We will first address GDP’s fifth enumeration of error, which challenges the grant of summary judgment on its claims for breach of employment agreements.

(a) Mosley Agreement. Mosley began working at GDP as a sales representative in August 2003; during his employment with GDP he executed a sales representative employment agreement which contained a noncompete restrictive covenant. Section (5) (c) of the agreement provides in relevant part that

for a period of two (2) years after termination of employment in the Territory, whether such termination is at the instance of the Company or Employee, Employee will not directly or indirectly, on Employee’s own behalf or for others, demonstrate or sell in the Territory any products or services that are competitive with the Products [carried by the company]; . . .

“Territory” is defined in the agreement as “the geographical area served by the Company, such area consisting of the following Map(s) and/or Description(s) in the state of Georgia: See Exhibit ‘A’, pages 1 and 2 attached.” A map of Georgia with 31 counties highlighted is attached as Exhibit A to the agreement; there is no page 2 to Exhibit A. Further, the agreement defines “Products” as

the following product lines, and related supplies and services, carried by the Company: Copiers, fax machines, printers, color systems and multifunction (copy, fax, print) devices, duplicators, services and supplies related to the foregoing products, and document management hardware and software.

(b) Layne Agreement. Layne began working for GDP as a “color” specialist or manager, assisting sales representatives with color sales, in August 2004. A little over three years later on October 22, 2007, he executed a Gordon Document Products Sales Manager Employment Agreement containing a noncompete restrictive covenant. In pertinent part the agreement provided: “for a period of two (2) years after termination of employment in the Territory, . . . Employee will not directly or indirectly, on Employee’s own behalf or for others, demonstrate or sell in the Territory any products or services that are competitive with the Products [carried by the Company];...” The definition of products contained in the Layne agreement was substantially similar to that contained in the Mosley agreement. Layne’s agreement defined “Territory” to “mean the geographical area served by the Employee, such area consisting of the following Map(s) and/or Descriptions in the state of Georgia: as shown on Exhibit ‘A’.” Two pages are attached to the agreements as Exhibit A. Page 1 of the exhibit shows a map with shaded counties and the following text: DeKalb, Fulton, Newton and Rockdale counties as described on Exhibit “A” Page “2” and the notation “The entire counties.” Page 2 of the exhibit contains a list of thirty-one counties, including the four listed on page 1, but no description of those counties. And page 2 of the exhibit includes Madison County, but Madison County is not shaded on page 1; however, Oconee County is shaded on page 1, but is not listed on page 2 and it is unclear whether Greene County may be partially shaded on page 1 — it is not listed on page 2.

GDP produced documents labeled GDP sales list in response to defendants’ discovery requests to identify the areas where Layne and Mosley were involved in sales on behalf of GDP The trial court concluded from this evidence that Layne and Mosley were not involved in sales in many of the counties restricted by their respective agreements, and that the noncompete covenants were thus overly broad and unenforceable.

Because the covenants in this case arise out of employment agreements, they are subject to strict scrutiny. Dent Wizard Inti. Corp. v. Brown, 272 Ga. App. 553, 555 (1) (612 SE2d 873) (2005).

Courts will enforce a restrictive covenant in an employment contract only if: “(1) the restraint is reasonable; (2) founded upon valuable consideration; (3) is reasonably necessary to protect the party in whose favor it is imposed; and (4) does not unduly prejudice the interests of the public.” (Citation omitted.) Hostetler v. Answerthink, Inc., 267 Ga. App. 325, 328 (a) (599 SE2d 271) (2004). Moreover, “(s)uch restriction must be strictly limited as to time, territorial effect, capacity in which the employee is prohibited from competing, and as to overall reasonableness.” (Citation omitted.) Id. “Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court, which considers the nature and extent of the trade or business, the situation of the parties, and all other circumstances.” (Punctuation and footnote omitted.) Habif, Arogeti & Wynne v. Baggett, 231 Ga. App. [289, 292 (2) (498 SE2d 346) (1998)].

Id. at 555-556 (1). Coleman v. Retina Consultants, 286 Ga. 317, 320 (1) (687 SE2d 457) (2009).

Turning to the territorial restrictions at issue here, it appears that these two employees participated in sales activities in some of the counties which were listed in their respective employee agreements, but that their lists also included counties where GDP may have done business but these employees did not. On appeal, GDP does not contend that the employees made actual sales in all the included territories, but argues that

the restricted territory outlined in the covenants is sufficiently limited under Georgia law because it only consists of a discrete portion of North Georgia and is limited to GDP’s sales territory. The employment agreements only included areas where GDP sold products on a consistent basis.

As we have previously explained:

While this Court will accept as prima facie valid a territory where the employee worked and the employer does business, a territory that is only where the employer does business but the employee did not work is overly broad on its face, absent strong justification for such protection, other than the desire not to compete with the former employee. Hulcher Sues v. R. J. Gorman R. Co., 247 Ga. App. 486, 491 (4) (543 SE2d 461) (2000).

Dent Wizard Intl. Corp. v. Brown, 272 Ga. App. at 556 (1). E.g., W R. Grace &c. v. Mouyal, 262 Ga. 464, 466 (422 SE2d 529) (1992); Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 139 (1) (287 SE2d 546) (1982).

In this case, GDP has offered no specific business justification for including these other counties, other than the assertion that the employees “were responsible for undertaking efforts to sell the products listed in these territories,” and pointing to the fact that they were responsible for “cold calling” or otherwise developing business from potential customers in the area where GDP did business. First, we note that GDP does not assert that the two employees actually “undertook efforts” to sell products in these territories, but merely that they “were responsible” for such efforts. And even if this allegation had specific support in the record, GDP does not point to any specific potential customers that the employees may have “called on” but not made sales to, or to any “potential” customer list that they may have “worked” or cultivated. In essence, to read this provision as GDP suggests, a customer who specifically rejected the employees’ efforts, and who indeed may have been receiving services from a competitor, could be included in this calculation. This clearly would be overbroad and unreasonable. Based on the foregoing, we find no error in the trial court’s grant of summary judgment on Count 2 of the second amended complaint.

2. Turning now to GDP’s first and second enumerations of error, GDP contends that the trial court erred in granting summary judgment to Layne and STI on GDP’s claims for tortious interference with employee relations and tortious interference with business relations.

Tortious interference claims, whether asserting interference with contractual relations, business relations, or potential business relations, share certain common essential elements: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant 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) the defendant’s tortious conduct proximately caused damage to the plaintiff.

(Citation omitted.) Kirkland v. Tamplin, 285 Ga. App. 241, 243 (1) (645 SE2d 653) (2007). Sommers Co. v. Moore, 275 Ga. App. 604, 605 (621 SE2d 789) (2005).

In this context, “improper conduct means wrongful action that generally involves predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, abusive civil suits, and unwarranted criminal prosecutions.” (Punctuation omitted.) Disaster Svcs. v. ERC Partnership, 228 Ga. App. 739, 741-742 (492 SE2d 526) (1997). American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 348-349 (2) (392 SE2d 860) (1990); Kirkland, 285 Ga. App. at 244 (1); Sommers, 275 Ga. App. at 606.

GDP contends the trial court erred in granting summary judgment on these claims because the evidence showed that Layne and STI tortiously procured the defection of former GDP employees Mosley, William Griswell, and Kelly Edge and tried to drive GDP out of business. Although GDP did not point to any specific evidence in its initial brief on appeal, referring generally to its statement of material facts, it appears to rely primarily on the following incidents and facts to support this claim: an after work meeting that several GDP employees attended in November or December 2007, a “tour” of STI which several GDP employees attended in early March 2008 and the testimony of two GDP employees concerning Layne’s alleged solicitation of employees.

As is pertinent to these claims, the record shows the following: In November or December 2007, a group of GDP employees went to a bar after work. Craig Rizk, a former GDP employee who is not a party to this litigation, testified in his deposition that he asked Layne and others to attend and that Layne, Andrew Daly, Kelly Edge, Marty Calkins, Jeremy Chick and one or two others attended. Rizk prepared a document with “bullet” points for conversation about dissatisfaction with the company, and it was disseminated at the meeting. The general tone of the meeting was dissatisfaction with the company and a possible walkout if demands were not met, but nothing came of that “plan.”

Several months after the meeting, in late January 2008, Layne first contacted STI by calling its president Lee Carr, for whom he had previously worked. Over the course of the next six or seven weeks, Layne and Carr exchanged phone calls and e-mails and met at either STI or public venues to discuss, among other things, Layne’s potential employment with STI.

Layne accepted employment with STI and signed an employment contract on or about March 12 or 13, 2008; he gave notice to GDP on or about March 14, and started working at STI on March 17.

Layne testified that “right before” he made his decision to leave GDP he told Chick, Daly, Mosley and Edge that he was leaving because he “just . . . couldn’t ... do this anymore.” Layne testified that these four were also his friends and that he believed they had probably begun looking for other employment even before he did.

The evidence also showed that Mosley, Chick and Daly made a tour of the facilities at STI in early March 2008, and GDP presented evidence that Layne made remarks encouraging the others to come to work there. Mosley, who was the only GDP employee on the tour who subsequently came to work at STI, testified that at that point “everybody” in the office was looking for a job and he was looking for an opportunity to leave GDI] a decision he had made months before following several incidents in which he felt he had been treated unfairly.

In addition to Mosley, Edge also left GDP and started working at STI. Edge testified that he visited STI with Daly while they were out at lunch one day, but that he was not part of the “group” tour. Edge testified that he did not find out where Layne was going until right around his departure from GDP and that he had not heard of STI before then. He further testified that Layne explained to him the differences between how GDP and STI operated, but that Layne did not tell him he wanted him to come to work at STI, although he knew he was the type of sales representative that Layne would want to employ.

In June 2008, Bill Griswell, a long-time service technician at GDE left GDP and went to work at STI. Both Layne and Griswell testified that Griswell contacted Layne at STI on his own initiative after he had a conversation with some former GDP technicians who worked for another company, not STI. Griswell further testified that although he had worked for GDP for many years and had a good relationship with GDP’s president, John Gordon, he decided to look elsewhere after he was told in a performance review conducted in the summer of 2007 that he had gone as far as he could go as a technician with the company, and should consider going into IT. But GDP did not offer him any training for that position and by the end of the year he was considering looking elsewhere. He further testified that he never told Layne he was dissatisfied at GDP or that he wanted to change jobs before Layne left GDP and that Layne never mentioned to him that he should come to work at STI. Griswell testified that although Layne told him he was going to work at STI before he left, he could not remember Layne telling him why or that he was upset at the way things were at GDP or with Gordon. He also testified that he toured STI before he went to work there, but it was with one of the people he was interviewing with, not Layne. Mosley, Edge and Griswell all testified that their compensation at STI was either comparable or less than what they received at GDP

Lastly, although several employees of GDP testified that they thought employees left GDP and went to STI because Layne solicited them by making disparaging statements about GDP and Gordon, the portions of their statements that were based on hearsay or were speculative were struck by the trial court, and GDP has not challenged that ruling. Moreover, the meeting in late 2007 cannot form the basis for GDP’s claims since that meeting occurred before Layne contacted Carr at STI about coming to work there. And, as to the March tour of STI, the only employee who attended the tour of STI who came to work there was Mosley, and he testified that he had made up his mind to leave GDP months before that and was just looking for the right opportunity. Moreover, Griswell contacted STI because of former employees of GDP who did not work at STI and not because of anything Layne said or did, and Edge also initiated the contact with Layne and STI and had made up his mind to seek other opportunities prior to Layne leaving GDP To summarize, it appears that there was prevalent employee dissatisfaction at GDP and that Layne reaching out and procuring employment with this former boss merely provided the opportunity that others had already been seeking. But even then only two other salespersons left to go to work at STI (others did leave GDI] but did not join STI), and the third employee, a technician, was not a part of this dissatisfied group and decided to leave GDP only because he had been individually told that he had no prospects for advancement in his current position there. Thus, as the trial court found, there was no evidence that Layne acted improperly to induce GDP employees to leave and come to work at STI. And, even if he did, there is no evidence that STI acted in such a way so as to defeat the protection of the privilege of fair competition. Gresham & Assoc, v. Strianese, 265 Ga. App. 559, 562-563 (2) (595 SE2d 82) (2004). Likewise, there is no evidence to show that Layne and STI were trying to drive GDP out of business. The trial court properly granted summary judgment to Layne and STI on these claims, and GDP’s first two enumerations of error are without merit. American Bldgs., 260 Ga. at 348-349; Kirkland, 285 Ga. App. at 244 (1) (a), (b); Sommers, 275 Ga. App. at 606-607; Contractors’ Building Supply v. Gwinnett Sash & Door, 199 Ga. App. 38, 39 (2) (403 SE2d 844) (1991).

3. Because it is somewhat related to the above, we next address GDP’s sixth enumeration of error. Citing Carroll Anesthesia Assoc, v. Anesthecare, 234 Ga. App. 646, 647-648 (507 SE2d 829) (1998), GDP makes the unparticularized argument that the trial court erred by granting summary judgment on its “claims for tortious interference with employment contracts and business relations as they related to customers and employees and defined product sales in the defined territories” because the evidence shows STI knew about and had reviewed GDP’s employment agreements, and that the facts, which it did not specify, demonstrated that there remained issues of fact for jury resolution on the essential elements of those claims. First, unlike Carroll Anesthesia Assoc., as we held in Division 1, this case does not involve enforceable employment agreements. Moreover, as STI points out, mere knowledge that an employee has a noncompete agreement is insufficient to create a claim for tortious interference as there must also be evidence to show that STI acted maliciously to induce the breach. Williams v. Rio Grande Fence Co., 221 Ga. 633, 635 (2) (146 SE2d 630) (1996).

Moreover, to the extent that GDP is asserting a claim for wrongful interference with customer relations, the evidence shows only that three former GDP customers bought products from STI after Layne started working there. GDP did not present any evidence from these customers concerning these purchases and did not present any evidence concerning the circumstances surrounding these sales. See Pendley Quality Trailer Supply v. B & F Plastics, 260 Ga. App. 125,126-127 (578 SE2d 915) (2003) (directed verdict proper when company did not offer testimony from customers as to why they left the company). Moreover, Layne testified that Carr instructed STI employees not to make sales calls or sales attempts to GDP customers “from day one” after he started working there, and Griswell testified that he had not performed any service calls on GDP customers since he left the company. This enumeration thus also presents no basis for reversal.

4. GDP argues that the trial court erred in granting summary judgment on its claim against Layne for breach of fiduciary duty. Again we find no error.

Fiduciary duties and obligations are owed by those in confidential relationships, i.e., relationships “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” OCGA § 23-2-58.

Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 606 (1) (503 SE2d 278) (1998).

Although it is undisputed that Layne was not a GDP principal, officer or director and for that reason many of the cases GDP relies on are unavailing, GDP argues that the trial court erred by finding that Layne did not have the authority to bind GDP

An agency relationship arises “wherever one person, expressly or by implication, authorizes another to act for him. . . .” OCGA § 10-6-1. In order for [Layne] to serve as [GDP’s] agent, [he] had to be more than the employee delegated by [GDP] to look after certain accounts — [he] had to be “vested with authority, real or ostensible, to create obligations on behalf of [GDP], bringing third parties into contractual relations with [GDP].” Southeastern Fidelity Ins. Co. v. Heard, 123 Ga. App. 635 (3) (b) (182 SE2d 153) (1971).

Atlanta Market, 269 Ga. at 606 (1) (a).

Section 2 (c) of Layne’s employment agreement provided specifically that “Employee will not, without the specific written direction of the Company, have authority to bind the Company for any debt or obligation and will not, through any words or actions, indicate otherwise to any person, firm, or corporation.” But despite this clear and unequivocal language, GDP urges that Layne did in fact have the authority to enter into contracts with its customers, and that, therefore, the trial court erred by finding that no question of fact existed as to his authority to bind the company. GDP also argues that the trial court erred by refusing to consider parol evidence, i.e., Gordon’s testimony, that this provision was intended to simply limit Layne’s ability to bind GDP to obligations other than customer contracts and employee relations, such as binding GDP to debts and loans from banks. But this provision was clear and unambiguous and its terms cannot be varied by parol evidence. OCGA § 24-6-1. “(W)here the terms of the contract are clear and unambiguous, the court looks only to the contract to find the parties’ intent.” (Citation and punctuation omitted.) In re Estate of Belcher, 299 Ga. App. 432, 435 (1) (a) (682 SE2d 581) (2009).

Moreover, even assuming that Layne had the authority to bind GDP with respect to customer contracts, the breach of fiduciary duty alleged here concerned Layne’s alleged solicitation of his co-workers at GDI] and there is no evidence he had the authority to bind the company on employment matters or relations. Thus, although Layne may have owed GDP a fiduciary duty with respect to the customer contracts he entered into on its behalf, there is no evidence he occupied a similar confidential relationship with respect to employee relations. See Atlanta Market, 269 Ga. at 607 (1) (b) (Although “[t]he employee-employer relationship is not one from which the law will necessarily imply fiduciary obligations . . . the facts . . . may establish the existence of a confidential relationship . . . concerning a particular transaction, . . .”) (emphasis supplied).

Based on the foregoing, the trial court did not err in granting summary judgment to Layne on this claim.

5. In light of our holding in Division 4 above, the trial court’s grant of summary judgment to STI on GDP’s claim that STI aided and abetted Layne’s breach of fiduciary duty is also affirmed.

6. Lastly, GDP contends that the trial court erred in granting summary judgment to Layne on GDP’s claims for defamation, libel and slander per se.

GDP points to three statements that it contends Layne published to GDP employees and others to support this claim: that GDP lied to its customers; that GDP was looking for a buyer; and that GDP was beefing up its books to make a sale go through. GDP further contends that because these statements concerned GDP’s business, they constitute defamation per se and thus damages are inferred. OCGA § 51-5-4 (a) (3).

A court looks to the plain import of the words spoken in order to ascertain whether the words constitute slander per se. To be slander per se, the words are those which are recognized as injurious on their face — without the aid of extrinsic proof. Should extrinsic facts be necessary to establish the defamatory character of the words, the words may constitute slander, but they do not constitute slander per se. Thus, the court may not hunt for a strained construction in order to hold the words used as being defamatory as a matter of law, and the negative inference a hearer might take from the words does not subject the speaker to liability for slander per se. Furthermore, when words are defamatory per se, innuendo — which merely explains ambiguity where the precise meaning of terms used in the allegedly slanderous statement may require elucidation — is not needed.

Bellemeade, LLC v. Stoker, 280 Ga. 635, 637-638 (631 SE2d 693) (2006). Zarach v. Atlanta Claims Assn., 231 Ga. App. 685 (2) (500 SE2d 1) (1998).

As to the first statement, the record shows that during their negotiations, Layne told Carr that he could not keep his promises to GDP customers and that he later wrote in an e-mail to Carr that “I don’t want to lie to my customers] anymore.” But Layne never stated that GDP or Gordon lied to customers, or directed him to lie to customers, only that he could not keep his promises to his customers. As the trial court noted, these statements were not defamatory or libelous per se.

As to the other two statements, Jeremy Chick testified in his deposition that Layne told him that Gordon was trying to sell the company and that “they were trying to beef up the company, so that they could make the books look good to sell it.” But a statement that a company is looking for a buyer and that it is trying to make itself more attractive to potential buyers is not, in and of itself, damaging or derogatory.

As the trial court correctly concluded, in the absence of evidence of statements or writings that were defamatory per se, GDP was required to demonstrate its entitlement to special damages. There was no evidence of special damages in this case; therefore, summary judgment was properly granted to Layne on this count as well.

DeCided March 16, 2011.

Parker, Hudson, Rainer & Dobbs, J. Marbury Rainer, Linda G. Carpenter, for appellant.

Ford & Harrison, Rachel R. Krause, Valeria R. Cometto, John L. Monroe, Jr., Davis, Matthews & Quigley, Matthew R. Thiry, Robert O. McCloud, Jr., for appellees.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       Additionally, GDP alleged that Layne breached GDP’s conflict of interest policy and procedures, and the trial court granted summary judgment on this claim on the basis, inter alia, that GDP did not respond, either in writing or at the hearing, to Layne’s motion for summary judgment on this count. GDP does not enumerate this ruling as error.

       It appears that Layne was a specialist in the area of color copiers, and that his primary role at GDP was to educate and support other sales representatives in that area.

       These documents indicate that Mosley was involved in sales in only ten or eleven counties between 2006-2008 and that Layne was involved in sales in twenty-four counties (or less) between 2005 and 2008.

       The trial court also found the agreements were overbroad as to scope and were indefinite, either of which would also be fatal to the enforcement of the agreements. However, we find it unnecessary to consider whether the trial court correctly ruled on these provisions, since the “blue pencil theory of severability” is not applicable here, and “[tlherefore, if any of the sub-paragraphs of the restrictive covenant are invalid, the entire covenant must fall.” (Citation and punctuation omitted.) Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 141 (1) (287 SE2d 546) (1982).

       Our analysis in this case is unaffected by any recent legislative proposals or changes. See OCGA § 13-8-2.1 (a) and applicability date contained in Ga. L. 2009, p. 231, § 4; Cox v. Altus Healthcare & Hospice, 308 Ga. App. 28 (706 SE2d 660) (2011).

       Layne testified that he was not a sales representative and thus was not bound to any territory and that he believed that John Gordon, the president of GDEJ simply highlighted the areas where the company sold.

       E.g., Fine a Communication Trends, 305 Ga. App. 298, 299 (699 SE2d 623) (2010) (employee was a corporate vice president and the main contact for company major clients); Gresham & Assoc., 265 Ga. App. at 560 (employee was a vice president in charge of a department of the company); E. D. Lacey Mills, Inc. v. Keith, 183 Ga. App. 357 (359 SE2d 148) (1987) (employee owned five percent of the stock of the company with an option to purchase more).


author: BARNES, Presiding Judge.

text:
    A10A1932.
    HARRIS v. THE STATE.
    (707 SE2d 878)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Wakenya Harris appeals his armed robbery conviction. Harris contends that the evidence was insufficient, and that he was denied effective assistance of counsel during the preparation of his case and during the trial. Upon our review, we affirm.

1. Harris contends that the evidence was insufficient to authorize a guilty verdict of armed robbery. He asserts that his conviction was based solely on the uncorroborated testimony of an alleged accomplice. We do not agree.

We view the evidence in the light most favorable to support the jury’s finding of guilt, and the defendant no longer enjoys a presumption of innocence; moreover, this Court gives due regard to the jury’s opportunity to judge witness credibility, and we do not weigh the evidence or determine witness credibility. Sheppard v. State, 300 Ga. App. 631 (686 SE2d 295) (2009). “It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.” (Citation omitted.) Thompson v. State, 281 Ga. App. 627, 629 (1) (636 SE2d 779) (2006). As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, this Court will uphold the jury’s verdict. Parnell v. State, 260 Ga. App. 213, 218 (6) (581 SE2d 263) (2003).

So viewed, the evidence establishes that at approximately 1:35 a.m. on October 7, 2007, the victim, an assistant manager with McDonald’s, closed the restaurant and went to a local bank to make the night deposit. She was accompanied in her car by another employee and her son. Another employee, his girlfriend, and a third employee followed them in a separate car. When the victim exited her car she was carrying one deposit bag in her purse. When she reached into her car to retrieve a second deposit bag, a man in a red mask approached her from behind, slammed her head on the top of the car and placed a gun to her face. He said, “Bitch, give me the money. I’ll kill you.” A second male stood nearby “nudging [the first man] into [her].” The victim could not recall if the second man had also worn a mask, but believed he had. She testified that she could not see the men’s faces but was certain they were African-American because she could see part of their arms and because of their “demeanor.”

After the men got the money, they ran away, and two of the men with the victim chased them. The victim drove to a nearby convenience store and called the police. An investigator with the Coving-ton Police Department met the victim and the witnesses at the scene of the crime and questioned them about the incident. During this same period, another officer who was responding to the robbery dispatch received tips from citizens in the area that they had observed three males running toward an address at a nearby street. One of the witnesses said that one of the three men he saw running lived at the address.

The officer went to the house and observed that three men were there. He did not question the three, but waited for the investigator to arrive. The investigator questioned the three suspects who were identified as Harris, Torique Sanders (Harris’s brother), and Quinton Collins. The three were transported to the station for questioning, and Harris’s mother gave police permission to search the house. Police recovered money from under a chest of drawers, underneath a speaker, from inside a shoe, and inside a bathroom.

Collins admitted to police that he was involved in the robbery and implicated Harris and Sanders as his accomplices. At trial, he testified that Harris had helped plan the robbery, positioned himself across the street from the bank, and whistled to let the other two know when the victim arrived. Collins testified that he and Sanders wore red masks and that after robbing the victim, the three ran away and placed their clothing in a trash can at “Cookie’fsJ” house. Police recovered items, including a BB gun, blue jeans, red bandanas, a red sock cap, and a dark shirt from the trash can. Witnesses had described the robbers as wearing dark shorts and pants, and “red type hoodies.” Collins testified that Harris got $800 from the robbery, and he and Sanders got $500 each. The victim testified that she knew Collins because he had worked at the restaurant with her for approximately two years, and that Harris had interviewed for a job there about six months before the robbery, but was not hired.

Sanders pled guilty to the robbery. Although he had implicated Harris in the robbery in an earlier statement to police, at trial he testified that police had threatened him into implicating his brother, and that Harris was not involved. He testified that the robbery was Collins’s idea and that he had helped Collins commit the robbery.

Harris testified at trial and admitted that Collins and Sanders talked with him about their plans, but denied being involved. He also denied being a look-out on the night of the crime, and testified that he discouraged the two from committing the robbery because he had recently served “a little time.”

It is generally true that while

a defendant may not be convicted solely upon the uncorroborated testimony of an accomplice, even slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. The corroborating evidence can be circumstantial so long as it tends to connect the accused to the crime, and a determination of its sufficiency is a matter for jury resolution.

(Citations and punctuation omitted.) Richardson v. State, 305 Ga. App. 850, 852 (700 SE2d 738) (2010).

Here, in addition to the testimony from Collins, police recovered a substantial amount of hidden cash from the house where Harris lived with his mother and brother; similar clothing to that worn by the suspects and a toy gun were recovered in a trash can near the house; and Harris implicated himself in a recorded telephone conversation with his girlfriend when he told her to “keep the money.” Harris’s girlfriend also testified that, contrary to the alibi he provided police, Harris was not with her until later on the night of the crime. Harris’s mother testified that he told her that Collins was “snitching” on them, and that she was surprised that her sons had large amounts of money in their rooms because they were unemployed.

This independent evidence was sufficient to corroborate the testimony given by Collins, and the cumulative evidence was sufficient for a rational trier of fact to find Harris guilty of the crime charged. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

2. Harris also contends he received ineffective assistance of trial counsel before trial and during his trial. Harris contends that trial counsel did not adequately prepare him to testify on his own behalf, and was ineffective in not requesting that the jury be charged on accomplice corroboration. We do not agree.

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), “a convicted defendant must show that counsel performed defi-ciently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.” (Citation omitted.) Coleman v. State, 286 Ga. 291, 297 (6) (687 SE2d 427) (2009). “A court need not determine whether trial counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiency.” (Citation, punctuation and footnote omitted.) Frazier v. State, 278 Ga. App. 685, 690 (3) (629 SE2d 568) (2006), overruled in part on other grounds by Schofield v. Holsey, 281 Ga. 809 (642 SE2d 56) (2007). We will not reverse a trial court’s findings regarding either the deficiency or prejudice prong of the Strickland test unless clearly erroneous. Rose v. State, 258 Ga. App. 232, 234-235 (2) (573 SE2d 465) (2002).

Regarding Harris’s assertion that he was not adequately advised or prepared before testifying, “whether or not to testify in one’s own defense is considered a tactical decision to be made by the defendant himself after consultation with his trial counsel.” Burton v. State, 263 Ga. 725, 728 (6) (438 SE2d 83) (1994). Trial counsel testified at the motion for new trial hearing that he advised Harris about the risk associated with testifying and that Harris said that he wanted to testify to tell the jury the truth about where he got the cash police found in his home. It was the function of the trial court at the hearing on the motion for new trial to determine witness credibility and to resolve any conflicts in the testimony between Harris and his trial counsel. Mobley v. State, 264 Ga. 854, 856 (2) (452 SE2d 500) (1995). As the trial court’s denial of an ineffectiveness claim based on conflicting evidence is not clearly erroneous, we find no merit in this claim. See Noble v. State, 220 Ga. App. 155, 157 (1) (469 SE2d 307) (1996).

Although Harris also contends that trial counsel was ineffective for failing to request a charge on accomplice corroboration,

[g]iven that the State did not rely solely upon accomplice testimony in securing [Harris’s] conviction but rather adduced ample evidence wholly sufficient to warrant the verdict (independent of the accomplice’s testimony), the failure of his trial counsel to request a charge on accomplice testimony did not constitute deficient performance.

Hayes v. State, 281 Ga. App. 749, 751 (1) (637 SE2d 128) (2006).

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Decided March 16, 2011.

Teresa L. Smith, for appellant.

W. Kendall Wynne, Jr., District Attorney, Layla H. Zon, Assistant District Attorney, for appellee.


author: Doyle, Judge.

text:
    A10A1935.
    AMAYA v. THE STATE.
    (708 SE2d 28)
   Doyle, Judge.

After a jury trial, Ricardo Amaya was found guilty of rape (Count l), false imprisonment (Count 3 — as a lesser included charge of kidnapping with bodily injury), aggravated assault (Count 5), kidnapping (Count 6), and family violence battery (Count 7). Amaya appeals, arguing that the trial court erred (1) by failing to excuse a juror for cause; (2) by denying the motion for directed verdict on the Count 6 kidnapping charge for lack of evidence sufficient to show asportation; (3) by overruling his objection to the State’s closing argument related to the Count 6 kidnapping charge; (4) by overruling his objection to the State’s closing argument as to the issue of force on the rape charge; and (5) by incorrectly charging the jury on the issue of punishment, thereby injecting the court’s opinion into deliberations. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of the witnesses, but only determines whether the adjudication of guilt is supported by sufficient competent evidence.

Viewed in this light, the record establishes that on March 1, 2009, Amaya’s girlfriend, R. E, exited his truck when the pair returned to the trailer at which they were living with several other individuals. Amaya grabbed her around the neck and dragged her away from the truck; he then threw her on the ground and began beating her in the head. Amaya then dragged R. F. further into the back yard near some trees, threw pinestraw and dirt in her face, and verbally taunted her. When he finished beating her, Amaya picked up R. F. and carried her to the trailer.

On March 5, 2009, Amaya woke R. F. during the night and attempted to have sexual intercourse with her. R. F. refused because she did not want to and did not want their roommates to hear, and Amaya forcibly rolled R. F. onto her back and inserted his penis into her vagina. R. F. testified that she told him no, but he did not stop, and she rolled over and cried quietly after the event.

After awaking the next morning, Amaya demanded breakfast, which R. F. refused to cook, and Amaya grabbed her by the hair, holding her over a hot fryer, and then dragged her to the bedroom. Amaya beat and threatened R. F. Later that day, the two left the trailer together, and while they were out, R. F. sought assistance from a police officer at a local fire station, who testified that R. F. had a number of bruises and was badly injured. Amaya was arrested, and R. F. was taken to a hospital for treatment.

A sexual assault nurse testified that R. F.’s demeanor at the forensic examination was upset and tearful, and R. F. was covered in bruises. The nurse also testified that the vaginal examination was painful for R. E, who had an abrasion on her vagina and a large reddened area on her right labia.

Finally, the State presented the videotaped interview of Amaya in which he admitted fighting with R. F, admitted dragging her from the truck on March 1 and throwing her down in the yard, admitted beating her with an extension cord, and admitted having sexual intercourse with R. F. on the night of March 5, 2009.

The jury returned guilty verdicts on Count 1, rape; Count 3, false imprisonment as a lesser included charge of kidnapping with bodily injury; Count 5, aggravated assault; Count 6, kidnapping; and Count 7, family violence battery. Amaya appeals, and we affirm for the reasons that follow.

1. First, Amaya argues that the trial court erred by failing to excuse a juror for cause; specifically, he contends that her work as a sexual assault counselor who had worked with hundreds of rape victims should have led the trial court to strike her.

“The trial court has broad discretion in evaluating a prospective juror’s impartiality, and its ruling on the matter will not be reversed absent manifest abuse of that discretion.” Amaya contends that the trial court here abused its discretion when it failed to strike for cause Juror 243, who had been the victim of a rape approximately 30 years prior to the case and who had begun volunteering at a rape crisis center in response to the attack. During voir dire, the juror explained that she thought the parties would assume that she would not be capable of hearing the case fairly based on her background, but her background made her more aware of the gravity of false accusations. The juror stated that she was “not going to automatically assume somebody [was] lying or telling the truth if [she didn’t] know the particulars of the case.”

Amaya principally relies on Garduño v. State, and Park v. State, to argue that the trial court abused its discretion by failing to strike this prospective juror because despite her answering during voir dire that she could render an impartial verdict, her personal experience as a victim of rape and violent crime, her background as a sexual abuse counselor, and her training to always believe sexual abuse victims established her bias in favor of the victim in this case. In Garduño, however, the juror at issue stated that she was trained to always presume a child victim of sexual assault was telling the truth and that she was biased toward the State’s key witness, and the juror in Park admitted that he was racially biased against the defendant and presumed that the defendant committed the crime. Juror 243 never expressed a presumption in favor of the victim in this case nor did she indicate a firm or fixed bias against Amaya. Accordingly, the trial court did not abuse its discretion by declining to strike for cause Juror 243.

2. Amaya also argues that the trial court erred by denying the motion for directed verdict of acquittal on the kidnapping charge for lack of evidence sufficient to show the element of asportation.

When determining the sufficiency of the evidence of asportation, the test articulated by the Supreme Court of Georgia in Garza v. State is considered. That test assesses four factors in determining whether the movement at issue constitutes asportation: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

For a showing of asportation to be made, it is not necessary that all the elements of the Garza test favor the State.

Here, it was not error for the trial court to deny Amaya’s motion for a directed verdict of acquittal on the kidnapping charge. During the March 1, 2009 incident, as R. F. exited Amaya’s truck, he grabbed her by the neck and moved her away from the more public area near the truck into the back yard, and after beating her in that location, moved her deeper into the back yard toward the treeline. When Amaya finished beating R. E, he picked her up and carried her to the trailer, avoiding the windows. Although the movement here was not extensive, the facts of this situation assessed under the Garza test and the majority opinion in Flores v. State militate in favor of the State. Amaya did not beat R. F. beside his truck in the immediate vicinity of the trailer; instead, he moved her away from the area before he began the beating, which was not necessary to the battery and independently increased her danger and prevented her from making an escape, calling for help, or being spotted by witnesses.

3. Next, Amaya contends that the trial court erred by overruling his objection to the State’s closing argument related to the kidnapping charge. Although confusing, it appears that Amaya is arguing that the trial court improperly overruled his argument to the State’s closing argument that “the fourth criteria is whether the movement itself presents a significant danger to the victim independent of other crimes. ... I want you to consider whether it was movement that isolated [the victim].”

As an initial matter, Amaya has failed to support his enumeration of error with citation to authority, and he has therefore abandoned this enumeration. Nevertheless, we note that “the jury is to receive the law from the court, not from counsel. However, counsel have every right to refer to applicable law in argument; it is law that the court will not charge the jury that counsel is prohibited from presenting.” Below, Amaya contended that the State was arguing an incorrect statement of the law; however, the State’s closing argument comported with the trial court’s charges to the jury and to the law on kidnapping at the time of trial.

Decided March 16, 2011.

Larry L. Duttweiler, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

4. Amaya also contends that the trial court erred by overruling his objection to the State’s closing argument as to the issue of force on the rape charge. Specifically, he contends that the sexual assault nurse could not testify that based on an abrasion discovered on R. F.’s vagina, the March 5 intercourse was forcible. Again, Amaya presents no citation to authority to support his contention, and we therefore deem his enumeration abandoned.

5. Finally, Amaya argues that the trial court erred by incorrectly charging the jury that “[y]ou are only concerned with the guilt or innocence of the defendant. You are not to concern yourself with punishment” because the instruction improperly injected the court’s opinion as to Amaya’s guilt. “The charge is an accurate statement of the law,” and this argument is without merit.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       OCGA § 16-6-1 (a) (1).

       OCGA § 16-5-41 (a).

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-5-40 (a).

       OCGA § 16-5-23.1 (a), (f). Amaya was found not guilty of aggravated sexual battery under OCGA § 16-6-22.2 (b) (Count 2) and received a directed verdict of acquittal on one charge of aggravated battery under OCGA § 16-5-24 (a) (Count 4).

       (Punctuation omitted.) Wilson v. State, 256 Ga. App. 741 (1) (569 SE2d 640) (2002).

        Garduño v. State, 299 Ga. App. 32, 34 (2) (682 SE2d 145) (2009).

       Id.

       260 Ga. App. 879 (581 SE2d 393) (2003).

       See Garduño, 299 Ga. App. at 33-35 (2).

       See Park, 260 Ga. App. at 880-881 (1).

       Compare with Garduño, 299 Ga. App. at 34-35 (2).

       284 Ga. 696 (670 SE2d 73) (2008).

       (Punctuation and footnotes omitted.) Leverette v. State, 303 Ga. App. 849, 850 (1) (696 SE2d 62) (2010). “Subsequent to Garza, the legislature amended the kidnapping statute; because the amendment applies to crimes committed on or after the revision’s effective date of July 1, 2009, it is inapplicable here, and Garza’s standard applies.” (Punctuation omitted.) Id. at 850 (1), n. 4.

       See id. at 850 (1).

       298 Ga. App. 574 (680 SE2d 609) (2009).

       The State also charged Amaya with family violence battery in connection with the March 1, 2009 incident, while the other indicted charges stemmed from the March 5, 2009 incident.

        See Brashier v. State, 299 Ga. App. 107, 110-111 (2) (681 SE2d 750) (2009) (because no other crime occurred during the movement, it could not have been an inherent part of another offense, and the movement across the basement, while slight, created an additional danger to the victim, independent of the assault); Flores, 298 Ga. App. at 576-577 (1) (movement of victim from front to rear of the home’s curtilege was not necessary to the sexual assault and increased the danger to the victim, preventing her location and rescue).

       See Court of Appeals Rule 25 (c) (2).

       (Punctuation omitted.) Reedman v. State, 265 Ga. App. 162, 168 (11) (b) (593 SE2d 46) (2003).

       See Leverette, 303 Ga. App. at 850 (1).

       Court of Appeals Rule 25 (c) (2).

        Roberts v. State, 276 Ga. 258, 260 (4) (577 SE2d 580) (2003).