text:
    A11A2000.
    BIRDSONG v. THE STATE.
    (718 SE2d 549)
   Barnes, Presiding Judge.

A jury found Barry Birdsong guilty of two counts of aggravated assault, one count of simple battery, and one count of possession of a firearm during the commission of a crime. The trial court denied his motion for new trial. On appeal, Birdsong contends that during the charge to the jury at the close of the case, the trial court erred by giving a curative instruction concerning witness testimony about the victim’s sexual history. Discerning no error, we affirm.

The record reflects that after Birdsong’s alleged physical and sexual attack of his estranged wife, a grand jury indicted him on one count of kidnapping with bodily injury, one count of rape, three counts of aggravated assault, one count of aggravated battery, one count of making terroristic threats, one count of possession of a firearm during the commission of a crime, and one count of family violence battery. The case was originally brought to trial in May 2008. However, during the cross-examination of the victim, defense counsel specifically inquired about her sexual activities after the alleged rape, leading the trial court to grant a mistrial. Before the case was brought to trial a second time, Birdsong filed a plea in bar based upon a claim of double jeopardy. The trial court denied the plea, and on appeal to this Court, we affirmed, concluding that defense counsel’s question to the victim regarding her sexual activities violated the Rape Shield Statute, OCGA § 24-2-3, and created a manifest necessity for the mistrial. See Birdsong v. State, 298 Ga. App. 322, 325-327 (2) (680 SE2d 159) (2009).

The case was brought to trial for a second time in February 2010. The victim testified that she and Birdsong had been married for several years but had separated in October 2006. On January 1, 2007, she went to Birdsong’s house to retrieve their son’s video game system. According to the victim, after she entered the house, Birdsong demanded that she move back in with him, but she responded that she was not returning and was planning on getting a divorce. The victim testified that Birdsong then slapped her in the face and stated that she was going to come home “or else.” She related that when she asked Birdsong what he meant by “or else,” he began grabbing and clawing at her neck and face, dragged her up the stairs, down the hall, and into the master bedroom on the upper level of the house. The victim further testified that once in the bedroom, Birdsong threw her on the bed and began choking her; retrieved a shotgun and poked her in the chest and stomach with it while threatening to kill her; cracked one of her teeth by striking her in the mouth with the shotgun; and forced her to have sexual intercourse with him. According to the victim, after Birdsong forced her to have sexual intercourse, he released her but warned her that she had one hour to retrieve her belongings and move back into the home.

The victim’s son, who was outside the house in his mother’s car at the time of the attack, testified that when his mother exited the house, she looked like she had been crying and seemed “really scared.” A sheriffs deputy who responded to a 911 call made by the victim similarly testified that she appeared “terrified” when he encountered her shortly after the attack, and he observed that she had a chipped tooth. Additionally, an analyst from the crime lab testified that DNA obtained from vaginal swabs collected from the victim as part of a rape kit examination matched Birdsong’s genetic profile.

Birdsong’s defense was that the victim was not credible and that any sexual encounter between them had been consensual. To support this defense, Birdsong’s counsel cross-examined the victim about her sexual history with Birdsong and elicited a concession from her that she repeatedly had consensual sexual intercourse with him after their separation and had one such encounter only a few days before the alleged attack. Defense counsel also pointed to a prior statement by the victim indicating that the last consensual encounter between them had occurred the day before the alleged attack.

While Birdsong himself did not testify, the defense called several witnesses, two of whom divulged information about the victim’s alleged sexual history with other men. One defense witness, the victim’s sister-in-law, testified on direct examination that the victim had been having an affair during her marriage to Birdsong; that the victim had stayed out all night with a boyfriend two days after the January 1 incident; and that the victim would walk around naked in front of other men who came over to her home and was neither shy nor modest. Another defense witness, when asked by defense counsel about the victim’s “reputation,” testified that he had “heard that she was promiscuous.”

After the defense rested, the prosecutor argued that as in the first trial, defense counsel had violated the Rape Shield Statute by eliciting testimony about the victim’s sexual activities with other men. The prosecutor stated that he was not requesting a mistrial because of the stress that would be engendered in the victim and her children by conducting a third trial. He further argued that a curative instruction given immediately after the offending testimony would have only served to accentuate the impermissible testimony to the jury and make the situation worse. Instead, the prosecutor argued that the trial court ought to give a curative instruction as part of its charge to the jury at the close of the case. The prosecutor stated that it was his “hope . . . that a thorough and curative instruction given during a larger body of instructional law at the close of the case [would] help the jury understand that this kind of business is irrelevant and shouldn’t enter into their deliberations at all.”

The trial court admonished defense counsel for the offending testimony and ultimately agreed to give a curative instruction rather than grant a second mistrial. As part of its closing jury charge, the court instructed:

A woman’s past sexual behavior with anyone other than the defendant shall not be considered by the jury in a case of this type. Any questions or testimony you may have heard relating to the past sexual history of the victim in this case including evidence of the victim’s marital history, mode of dress, general reputation for promiscuity, or sexual mores contrary to community standards are not admissible. You shall disregard them entirely, disabuse your minds of them entirely, and give them no consideration whatsoever in reaching your verdict in this case.

Defense counsel objected to the giving of the instruction on several grounds, including that the instruction should have been given at the time of the offending testimony rather than as part of the closing jury charge.

The jury subsequently found Birdsong guilty of two counts of aggravated assault, simple battery as a lesser included offense of aggravated battery, and possession of a firearm during the commission of a crime. The jury acquitted him of kidnapping with bodily injury, rape, one of the aggravated assault counts, terroristic threats, and family violence battery.

On appeal, Birdsong argues that the trial court erred by including the curative instruction relating to the victim’s sexual history in its charge to the jury at the close of the case. He maintains that the curative instruction, which he does not dispute was an accurate statement of the law, was improper because the prosecutor’s request for the instruction was untimely, given that no objection was made immediately after the improper testimony was elicited. He further maintains that even if the prosecutor did not waive his objection to the testimony, a curative instruction only would have been proper if given immediately after the offending testimony was elicited rather than as part of the closing jury charge.

Birdsong’s argument is without merit. “The trial court has broad discretion in fashioning a remedy to alleviate a problem created by the utterance of inadmissible evidence, and its exercise may not be reversed unless abused.” (Citations and punctuation omitted.) Clay v. State, 216 Ga. App. 310, 312 (2) (454 SE2d 198) (1995). As an initial matter, a trial court has the inherent authority to instruct the jury to disregard inadmissible testimony, even if there was no timely objection to the testimony. Cf. Ranson v. State, 198 Ga. App. 659, 662 (8) (402 SE2d 740) (1991) (trial court was authorized to charge the jury on the concept of parties to a crime, given that it was pertinent to the legal and factual issues raised in the case, although there was no proper and timely request for the charge by the State). And a trial court does not err by giving a curative instruction in its closing jury charge rather than contemporaneous with the introduction of the improper testimony, when there was no request for such an instruction at the time the testimony was elicited. See Mobley v. State, 235 Ga. App. 151, 152 (508 SE2d 778) (1998). Furthermore, after hearing the prosecutor’s concern that the giving of a curative instruction in isolation would only emphasize the error, we cannot say that the trial court acted outside its broad discretion in determining that the most subtle way of dealing with the improper testimony was to give a curative instruction embedded within the closing jury charge. See Clay, 216 Ga. App. at 312 (2) (noting that “there are instances where curative instructions would serve only to emphasize the alleged error”) (citations and punctuation omitted).

Additionally, even if the giving of the curative instruction as part of the closing jury charge constituted error, “[a] conviction in a criminal case will not be reversed when it is highly probable that [the] erroneous jury instruction did not contribute to the verdict.” (Citation and punctuation omitted.) Nesbitt v. State, 296 Ga. App. 139, 140 (2), n. 6 (673 SE2d 652) (2009). Given that Birdsong does not dispute that the curative instruction was an accurate statement of the law, and given that he was acquitted of the rape charge, it is highly probable that the curative instruction did not contribute to the verdict in this case. See, e.g., Knox v. State, 290 Ga. App. 49, 54 (3) (658 SE2d 819) (2008) (any error in jury charge was harmless, given that the charge related to a count on which the defendant was acquitted).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

Decided November 1, 2011.

Mary Erickson, for appellant.

David McDade, District Attorney, James A. Dooley, Jeffrey L. Ballew, Assistant District Attorneys, for appellee.

       A lawyer may be held in criminal contempt for purposefully introducing “character evidence of the victim’’ in contravention of a prior court ruling. In re Longino, 254 Ga. App. 366, 368 (1) (562 SE2d 761) (2002). Furthermore, a lawyer has an ethical duty under Rule 3.1 of the Georgia Rules of Professional Conduct not to “conduct a defense” or “take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another,” such as the alleged victim in a rape case. The trial court did not hold Birdsong’s counsel in contempt for eliciting the improper witness testimony regarding the victim’s sexual history with other men. But the trial court admonished counsel for not, at the very least, instructing his witnesses to refrain from answering the open-ended questions posed to them in a manner that divulged the victim’s alleged sexual history.

       None of the other charges contained in the indictment included factual allegations of sexual misconduct by Birdsong.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A11A0904.
    WILLIAMS v. COBB COUNTY FARM BUREAU, INC. et al.
    (718 SE2d 540)
   Andrews, Judge.

Charles Williams appeals from the trial court’s grant of summary judgment to Cobb County Farm Bureau, Inc., Russell Smith, and Georgia Farm Bureau Mutual Insurance Company. Williams sued Georgia Farm Bureau Mutual Insurance Company for age discrimination under the Age Discrimination in Employment Act (ADEA); sued Russell Smith for intentional infliction of emotional distress, invasion of privacy, and tortious interference with employment relations; sued both Cobb County Farm Bureau and Georgia Farm Bureau Mutual Insurance Company as vicariously liable for the acts and omissions of defendant Smith; and sued for punitive damages against all defendants. After reviewing the record, we conclude that defendants were entitled to summary judgment on Williams’s claims and affirm.

The record shows that Williams was a district sales manager for Georgia Farm Bureau Mutual Insurance Company (“company”). Russell Smith is a radio broadcaster and a farmer. He serves as a volunteer member of the board for Cobb County Farm Bureau. Cobb County Farm Bureau is a not-for-profit corporation that provides various services to Georgia Farm Bureau Mutual Insurance Company. The company pays a fee to Cobb County Farm Bureau in exchange for office space, management and clerical support.

This case arose when Williams was asked to help develop a plan to increase the sale of life insurance policies for the company. A meeting to present the plan was scheduled and was attended by representatives from the different Georgia Farm Bureaus around the State. Russell Smith attended as a representative from Cobb County Farm Bureau. George Hoyle, one of Williams’s co-workers, made the presentation. After the presentation, several people expressed displeasure with the life insurance plan.

There was testimony that Smith stated that “all we’re doing is laundering money through Southern Farm Bureau.” According to Hoyle’s affidavit and Williams’s deposition, however, Smith accused the people responsible for the plan of being “crooks” and “money launderers.”

After the meeting, Williams sent an e-mail from his company e-mail address to his 14 agency managers, the company’s director of sales, and the sales staff in the company’s Macon office. The e-mail stated in pertinent part:

We have a lot of outside meddling and a couple of people with axes to grind and one radical %$#%$%&% sending emails to our leadership trying to do us damage. If we have to call on the KKKI think several of you know where we can find some poles already soaking and ready to burn and I have several volunteers who have ski mask [sic] and a few pick ax handles they are read [sic] to limber up!

Williams admitted that he was referring to Smith as the “one radical %$#%$%&%.” Williams was suspended with pay the Monday morning after he sent the e-mail and was fired one week later.

Williams filed this suit, and all defendants moved for summary judgment. The trial court granted the motions, and this appeal followed.

Summary judgment is proper when the evidence, construed in the nonmovant’s favor, shows that no issue of material fact remains and the movant is entitled to judgment as a matter of law. A defendant may prevail on summary judgment “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We review the trial court’s grant or denial of summary judgment de novo. See Carter v. Parish, 274 Ga. App. 97 (616 SE2d 877) (2005).

1. In his first enumeration of error, Williams contends that the trial court erred in granting summary judgment on his age discrimination claim against the insurance company. Williams has submitted no evidence, however, to support his claim of age discrimination beyond the fact that he was 67 years old, was fired, and was replaced by a younger employee.

The current law is that to support a claim of age discrimination a plaintiff must show that, but for his age, he would not have been fired. Moreover, the burden never shifts to the employer to prove a non-age related reason for the firing. See Gross v. FBL Financial Svcs., 557 U. S. 167 (129 SC 2343, 2351, 174 LE2d 119) (2009). The undisputed deposition testimony was that management agreed that there was no choice but to terminate Williams after he sent the offensive e-mail from his company e-mail address.

Further, Williams’s argument on appeal in support of this enumeration that Smith somehow influenced the company to fire Williams after he sent the e-mail, contributes nothing in support of an age discrimination claim. Accordingly, there is no merit to this enumeration.

2. Next, Williams claims that the trial court erred in granting summary judgment to Smith on Williams’s claims for intentional infliction of emotional distress, false light invasion of privacy, and tortious interference with Williams’s employment relationship. In support of these claims, Williams submitted George Hoyle’s affidavit stating that Smith got up at the meeting and referred to Williams, Hoyle, and others responsible for the plan to increase life insurance sales as being guilty of “money laundering.” The affidavit also stated that it was announced at a Georgia Farm Bureau meeting that Williams was fired because Smith threatened to go public with Williams’s e-mail if the company did not fire Williams.

(a) Intentional infliction of emotional distress. In order to support this claim, a plaintiff

must show that [he] suffered severe emotional distress as a result of intentional or reckless conduct that is extreme and outrageous. The alleged conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Whether conduct rises to the requisite level of outrageousness to sustain a claim is a question of law.

(Punctuation and footnotes omitted.) Law v. Harris, 295 Ga. App. 628, 628-629 (673 SE2d 14) (2009).

Williams has submitted no evidence that would support this claim. As appellees point out, Smith never mentioned Williams by name when he allegedly referred to the group in favor of this life insurance plan as “crooks” performing “money laundering.” Moreover, Williams has failed to submit any evidence showing that he suffered any emotional distress. In his deposition, Williams testified that he was in an “okay mood” after the meeting and nobody ever came up to him after the meeting and said they thought he was a crook or was laundering money. In fact, Williams’s only claim of distress was “I told you, I didn’t sleep good and focused on the situation continually. I think that’s damage enough.”

That is not sufficient to show “severe emotional distress.”

[E] motional distress includes all highly unpleasant mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that liability arises. The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it.

(Citation and punctuation omitted.) Peoples v. Guthrie, 199 Ga. App. 119, 121 (404 SE2d 442) (1991). See also Martin v. North American Van Lines, 226 Ga. App. 187, 190 (485 SE2d 815) (1997), holding that stomach aches, indigestion, fatigue, and irregular sleep were not sufficient because “[ljiability for intentional infliction of emotional distress clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Punctuation omitted.) Id. at 190 (2) (c). Thus, the trial court did not err in granting summary judgment on this claim.

(b) False light invasion of privacy.

To establish a claim of false light [invasion of privacy], a plaintiff must show the existence of false publicity that depicts the plaintiff as something or someone which he is not. Next, the plaintiff must demonstrate that the false light in which he was placed would be highly offensive to a reasonable person.

(Citation and punctuation omitted.) Blakey v. Victory Equip. Sales, 259 Ga. App. 34, 37 (576 SE2d 288) (2002). The claim of disclosure of embarrassing private facts requires that “(a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; and (c) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.” (Punctuation omitted.) Nelson v. Glynn-Brunswick Hosp. Auth., 257 Ga. App. 571, 578 (571 SE2d 557) (2002).

First, we note that Williams does not support this claim of error with any specific argument as to each element of the claim or citation to the record; nor does he cite to us any authority on point. As previously stated, when Smith allegedly made these statements, he was responding to a presentation made by Hoyle, not by Williams. Further, there does not appear to be any disclosure of “private, secluded or secret facts.” Williams himself stated at his deposition that Smith was referring to the “agency force” when he made these comments. The trial court found that this claim was in essence a claim for defamation which would be precluded by the one-year statute of limitation. See OCGA § 9-3-33.

Finally, Williams cannot support this claim because he has not shown that the false information about which he complains was distributed to the public at large. See Blakey, supra at 38 (no public disclosure of doctor’s blood test results when limited to employer, hospital administrator, and staff). See also Peacock v. Retail Credit Co., 302 FSupp. 418, 423 (N.D. Ga. 1969) (publication requirement had not been met when a credit reporting agency distributed allegedly false information to its clients, as this was a limited disclosure and not the type of public disclosure required to establish invasion of privacy). Accordingly, the trial court did not err in granting summary judgment to Smith on this claim.

(c) Tortious interference with employment relationship.

[I]n an action for tortious interference with an employment relationship that is terminable at will, the plaintiff must show that a party with no authority to discharge the employee, being activated by an unlawful scheme or purpose to injure and damage him, maliciously and unlawfully persuades the employer to breach the contract with the employee. Malice plus injury to business of itself does not, however, constitute the tort of wrongful interference with business. Rather, an independent wrongful act is required as well as an injury.

(Punctuation omitted.) Gunnells v. Marshburn, 259 Ga. App. 657, 659-660 (578 SE2d 273) (2003).

In this case, management testified that their sole consideration for firing Williams was the offensive e-mail that he sent to other employees. Williams claims that he was told that Smith was demanding his firing and was threatening to publish the e-mail.

Williams submits no evidence, however, that Smith committed an independent wrongful act. “Since the tort was first recognized in the employment context, necessary ingredients include that the interference must be malicious and unlawful or wrongful.” Rose v. Zurowski, 236 Ga. App. 157, 159 (511 SE2d 265) (1999). In Rose, this Court held that “divulging truthful information and expressing critical personal opinions about a co-employee’s work are not wrongful or unlawful acts.” (Punctuation omitted.) Id. The court stated that “instructing a fellow employee to commit perjury and then threatening him when he refuses” constitutes a wrongful act, but “accurately informing an employee’s superiors that he owes money to the corporation does not.” Id. Here, Williams has failed to allege that Smith’s actions were unlawful or wrongful. The trial court correctly granted summary judgment on this claim.

3. In light of our holdings in Divisions 1 and 2 above, we need not address Williams’s claims for vicarious liability for Smith’s alleged tortious acts and for punitive damages.

Decided October 14, 2011

Reconsideration denied November 2, 2011.

Dennis, Corry, Porter & Smith, George H. Connell, Jr., for appellant.

James, Bates, Pope & Spivey, Duke R. Groover, Marty K. Senn, Downey & Cleveland, Joseph C. Parker, Kelley E. Webb, for appellees.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.


text:
    A11A1122.
    GOSPEL TABERNACLE DELIVERANCE CHURCH, INC. et al. v. FROM THE HEART CHURCH MINISTRIES, INC. et al.
    (718 SE2d 575)
   Andrews, Judge.

From the Heart Church Ministries, Inc. and From the Heart Church Ministries — Atlanta, Inc. (collectively referred to as From the Heart) sued Gospel Tabernacle Deliverance Church, Inc. (Gospel Tabernacle), Wiley Jackson II, and Rodney B. Jackson, the Bishop and the Pastor of Gospel Tabernacle, respectively, claiming that the Jacksons made negligent misrepresentations about real property which induced From the Heart to purchase the property from Gospel Tabernacle. The suit alleged that, prior to the purchase, the Jacksons misrepresented that the property, on which a church was located, included adjacent land on which part of the parking lot used by the church was located. After the purchase closed, From the Heart discovered that the adjacent land was not owned by Gospel Tabernacle and was not part of the purchased property. While affirming the property purchase, From the Heart sought damages resulting from the misrepresentation. A jury rendered a verdict in favor of From the Heart for negligent misrepresentation and awarded damages in the amount of $50,400. Gospel Tabernacle and the Jacksons appeal claiming that the trial court erred by denying their motions for a directed verdict and for judgment notwithstanding the verdict made on the basis that the evidence showed, as a matter of law, that From the Heart failed prior to the purchase to exercise due diligence to discover the true boundaries of the property. We agree. For the following reasons, we find that the evidence was insufficient to sustain the verdict because From the Heart failed as a matter of law to exercise due diligence. Accordingly, we reverse the judgment entered on the verdict and direct that judgment be entered by the trial court in favor of Gospel Tabernacle, Wiley Jackson II, and Rodney B. Jackson. OCGA §§ 9-11-50 (e); 5-6-36; Aldworth Co. v. England, 281 Ga. 197 (637 SE2d 198) (2006).

The parties entered into a purchase agreement prepared by Gospel Tabernacle’s real estate agent which provided that the property to be purchased was described in an attached survey, or, if no survey was attached, then as described in deed book 36523, page 449 maintained by the Clerk of the Fulton County Superior Court and made a part of the agreement by reference. The attached survey showed not only the property owned and sold by Gospel Tabernacle pursuant to the purchase agreement but also an adjacent tract of land not owned by Gospel Tabernacle which was used for additional parking by the church located on the property. The survey showed lines with directions and distances which encompassed the property owned by Gospel Tabernacle and on which the church buildings were located. One of these lines was described on the survey as a “deed line” which separated an area within the Gospel Tabernacle property labeled “asphalt parking” from the adjacent land not owned by Gospel Tabernacle also labeled “asphalt parking.” In contrast to the property owned by Gospel Tabernacle, the survey lines encompassing the adjacent land did not show distances and directions. Nothing on the survey specifically stated that the adjacent land was not owned by Gospel Tabernacle and was not part of the property offered for purchase.

The purchase agreement provided for a period of due diligence prior to closing to allow From the Heart an opportunity to “inspect, survey, examine, and test” the property and to terminate the agreement if From the Heart determined that it was not desirable to proceed with the purchase. During the due diligence period, From the Heart requested that Gospel Tabernacle provide another survey of the property to be purchased. John Cherry, the Episcopal Pastor and founder of From the Heart, testified that he requested the survey “to be certain ... of what I was purchasing.” Pursuant to this request, Gospel Tabernacle provided a second survey of the property to From the Heart. Like the survey attached to the purchase agreement, the second survey also showed the property owned by Gospel Tabernacle (encompassed by lines with directions and distances) and showed the portion of the Gospel Tabernacle property labeled “asphalt” separated by one of those lines from the adjacent land, also labeled “asphalt,” which was not owned by Gospel Tabernacle. But the second survey contained additional information not contained on the survey attached to the purchase agreement. The second survey stated specifically that it was a boundary survey of the Gospel Tabernacle property, and it contained a written paragraph on the face of the survey captioned “Legal Description” which set forth a metes and bounds description of the surveyed property following the directions and distances of the lines encompassing the property owned by Gospel Tabernacle. This metes and bounds description did not include the adjacent land shown on the second survey which was not owned by Gospel Tabernacle. Moreover, the second survey specifically described the adjacent land as being an area 70 feet over the surveyed property line. When shown the second survey on cross-examination, Pastor Cherry admitted that it contained a legal description of the property that did not include the adjacent land and that it showed on its face that the adjacent land was 70 feet over the property line. During the due diligence period, From the Heart also obtained a commitment for title insurance on the property to be purchased from Gospel Tabernacle. The title insurance commitment contained the same metes and bounds description of the property that was shown on the second survey and that excluded the adjacent land. Pastor Cherry also admitted that the survey attached to the purchase agreement showed a line described as a “deed line” which separated the Gospel Tabernacle property from the adjacent land. Furthermore, Pastor Cherry testified on direct examination that, without the portion of the parking lot located on the adjacent land not owned by Gospel Tabernacle, the Gospel Tabernacle property purchased by From the Heart had only 35 to 40 parking spaces. Pastor Cherry’s estimate of the available parking spaces was consistent with a report provided to From the Heart during the due diligence period which showed that the property it was purchasing from Gospel Tabernacle had only 36 parking spaces.

In addition to receiving the above items during the due diligence period, Pastor Cherry testified that, prior to closing, he learned from a tenant who had occupied the church building that Gospel Tabernacle did not own the adjacent land on which a portion of the parking lot used by the church was located. After learning this, Pastor Cherry testified that he contacted Pastor Jackson who assured him that Gospel Tabernacle owned the entire parking lot. The record also shows that, at From the Heart’s request, Gospel Tabernacle re-paved the entire parking lot during the due diligence period. According to Pastor Cherry, he relied on these assurances from Gospel Tabernacle that it owned the entire parking lot and closed the purchase without further inquiry. When the purchase of the property closed, the warranty deed from Gospel Tabernacle to From the Heart contained the same metes and bounds description of the property that was contained in the second survey; in the title insurance commitment; and in deed book 36523, page 449 as referenced in the purchase agreement — and none of these property descriptions included the adjacent land not owned by Gospel Tabernacle. The Jacksons testified that, during the five years Gospel Tabernacle owned the church property before selling it to From the Heart, the church used the entire paved parking lot, including the paved portion located on the adjacent land, and that they mistakenly thought Gospel Tabernacle owned the adjacent land. Nevertheless, it is undisputed that Gospel Tabernacle never owned the adjacent land; that it was not part of the church property that Gospel Tabernacle previously acquired by recorded deed; and that the true ownership of the adjacent land was shown by recorded deeds maintained by the Clerk of the Fulton County Superior Court.

As with a fraudulent misrepresentation claim, justifiable reliance upon the false information is an essential element of a claim asserting negligent misrepresentation. Anderson v. Atlanta Committee for the Olympic Games, 261 Ga. App. 895, 900 (584 SE2d 16) (2003); Hardaway Co. v. Parsons, Brinckerhoff Quade & Douglas, Inc., 267 Ga. 424, 426 (479 SE2d 727) (1997). Accordingly, where the evidence shows the plaintiff has failed as a matter of law to exercise due diligence to discover the truth, this shows an absence of justifiable reliance which bars recovery on a negligent misrepresentation claim. Artzner u. A & A Exterminators, 242 Ga. App. 766, 771-772 (531 SE2d 200) (2000). “[A] directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict. OCGA § 9-11-50 (a).” St. Paul &c. Ins. Co. v. Meeks, 270 Ga. 136, 137 (508 SE2d 646) (1998). Where the record shows as a matter of law the lack of any evidence sufficient to support an essential element of the non-movant’s claim, a directed verdict is demanded. Parsells v. Orkin Exterminating Co., 178 Ga. App. 51, 52 (342 SE2d 13) (1986). Because the evidence, construed in favor of From the Heart, shows as a matter of law that From the Heart failed to exercise the required due diligence, Gospel Tabernacle and the Jacksons were entitled to a directed verdict.

The record shows that, prior to closing, From the Heart learned from a tenant who had occupied the church building that there was a dispute about whether Gospel Tabernacle owned land adjacent to the church property on which part of the parking lot used by the church was located. Prior to closing, From the Heart also received: (1) a survey of the church property which clearly showed by metes and bounds description that the church property it was about to purchase did not include the adjacent land on which part of the parking lot was located; (2) a title insurance commitment containing the same metes and bounds description as the survey which confirmed that the adjacent land was not part of the church property; and (3) a report on parking spaces available on the church property which showed that the church property did not include the extra parking spaces available on the adjacent land. Despite having this information about the property, From the Heart closed the purchase claiming reliance on mistaken and false assurances from Gospel Tabernacle that the adjacent land was part of the purchased property. Unless a purchaser of real property is fraudulently prevented from examining the property, or an examination would not have disclosed the falsity of a misrepresentation — neither of which was shown in this case — the rule is that “one cannot be permitted to claim that he has been deceived by false representations about which he could have learned the truth of the matter and could have avoided damage.” (Citations and punctuation omitted.) Lester v. Bird, 200 Ga. App. 335, 338 (408 SE2d 147) (1991). Here, an examination of documents in possession of From the Heart prior to closing would have revealed that the adjacent land was not included within the boundaries of the purchased property. Except in plain and indisputable cases, whether a plaintiff could have protected himself from false information by the exercise of due diligence is for the jury. Klusack v. Ward, 234 Ga. App. 178, 179 (507 SE2d 1) (1998); Lester, 200 Ga. App. at 338. We find that the evidence is plain and indisputable that From the Heart failed as a matter of law to exercise due diligence to discover the true boundaries of the purchased property. Id. at 179-180.

Decided November 2, 2011.

Emory A. Schwall, Robert S. Wayne, for appellants.

Stephen D. Apolinsky, Patrick J. Stubbs, for appellees.

Judgment reversed with direction.

Phipps, P. J., and Adams, J., concur.


text:
    A11A1584.
    NEWS PLACE DEVELOPERS, LLC v. REESE.
    (718 SE2d 578)
   Andrews, Judge.

On appeal from the trial court’s grant of summary judgment to plaintiff John S. Reese on his claim to recover earnest money for a condominium he had agreed to purchase, defendant News Place Developers, LLC, argues that a material issue of fact remains as to whether Reese’s rescission was effective. We disagree and affirm.

On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998).

So viewed, the record shows that on June 27, 2007, Reese entered into an agreement to reserve a Savannah condominium unit offered by News Place and paid $10,000 to secure that reservation. On February 15, 2008, Reese executed a purchase agreement concerning Unit A-2. The purchase agreement provided that Reese had “at least” 14 days after News Place provided Reese with certain documents required by the Georgia Condominium Act, OCGA § 44-3-70 et seq., to rescind the agreement, and that if no rescission took place, Reese would then pay the remainder of the purchase money, amounting to $19,200.

On March 15, 2008, a News Place representative mailed the required documents, known as a “disclosure package,” to Reese’s post office box in Savannah. As News Place concedes, two of these documents, including the declaration, were not finalized, and it never received any acknowledgment from Reese that he had received the disclosure package. Despite this, Reese paid the remaining earnest money more than a year later, on April 15, 2009. A week later, News Place’s attorney sent Reese a letter notifying him that the closing would take place in June 2009.

Reese sent News Place an e-mail on August 4, 2009, rescinding the agreement and demanding the return of his earnest money due to “lack of documentation and other issues.” On December 3, 2009, Reese’s attorney sent News Place a letter to the same effect. When News Place refused, Reese brought this action for breach of contract. The trial court later granted Reese summary judgment on the ground that he was never provided all of the documents specified in the purchase agreement.

In three related enumerations of error, News Place argues that Reese’s rescission was not effective because News Place substantially complied with the requirements of the Georgia Condominium Act. We disagree.

The Georgia Condominium Act requires that as to “the first bona fide sale of [a] residential condominium unit for residential occupancy by the buyer,” a contract to buy “shall be voidable by the buyer until at least seven days after the seller has furnished to the prospective buyer the documents specified in this subsection,” including copies of the floor plan, the declaration, the articles of incorporation and bylaws, and other documents. OCGA § 44-3-111 (a), (b). Subsection (c) also specifies that “[tjhis subsection may not be waived” and that the contract “shall contain within the text the following legend in boldface type or capital letters” specifying the required documents to be transmitted to the buyer, and also that “ ‘A DATED, WRITTEN ACKNOWLEDGMENT OF RECEIPT OF ALL SAID ITEMS SIGNED BY THE BUYER SHALL BE PRIMA-FACIE EVIDENCE OF THE DATE OF DELIVERY OF SAID ITEM.’ ” OCGA § 44-3-111 (c) (1). (Capitals in original.)

The purchase agreement signed by Reese expanded the buyer’s rights and the seller’s responsibilities beyond those required by OCGA § 44-3-111 (c) (1) in two relevant ways. Specifically, the agreement provided:

THIS CONTRACT IS VOIDABLE BY PURCHASER UNTIL AT LEAST FOURTEEN (14) DAYS AFTER ALL OF THE ITEMS REQUIRED UNDER CODE SECTION 44-3-111 OF THE “GEORGIA CONDOMINIUM ACT”, TO BE DELIVERED TO PURCHASER, HAVE BEEN RECEIVED BY PURCHASER. . . .
SELLER SHALL SUBMIT ALL OF THE REQUIRED ITEMS TO PURCHASER IN ONE PACKAGE AND SHALL OBTAIN FROM PURCHASER A DATED, WRITTEN ACKNOWLEDGMENT OF RECEIPT OF ALL SAID ITEMS IN SUCH PACKAGE, AND SUCH ACKNOWLEDGMENT SIGNED BY PURCHASER SHALL BE PRIMA-FACIE EVIDENCE OF THE DATE OF DELIVERY OF SAID ITEMS[,] AND THE DAY IMMEDIATELY FOLLOWING THE DATE OF SUCH ACKNOWLEDGMENT SHALL BE THE FIRST DAY IN SUCH 14-DAY RESCISSION PERIOD.

(Capitals in original; emphasis supplied.) The agreement thus granted two benefits to the buyer beyond those required by the statute: extending the time for rescission from seven days to fourteen days after the receipt of the disclosure package; and requiring that the seller obtain a “dated, written acknowledgment of receipt” of all items in that package from the buyer.

We have seen no Georgia law barring parties subject to the Georgia Condominium Act from reaching a bargain which imposes disclosure responsibilities more stringent than those required by the Act on a condominium seller. See, e.g., Bradford Square Condo. Assn. v. Miller, 258 Ga. App. 240, 247 (573 SE2d 405) (2002) (enforcing contractual term that condominium association was not responsible for providing security measures). Although the agreement required it to do so, News Place has not provided any written acknowledgment from Reese that he received the disclosure package. Even if it had, moreover, News Place concedes that it never provided Reese with final versions of some of the required documents, and the Act provides that its disclosure requirements “may not be waived.” OCGA § 44-3-111 (c) (1). It follows that the trial court did not err when it granted Reese summary judgment concerning his rescission of the agreement to buy the condominium at issue here.

Decided November 2, 2011.

Glover & Davis, Nathan T. Lee, Clifton M. Sandlin, for appellant.

Donald E. Dyches, Jr., for appellee.

Judgment affirmed.

Phipps, P. J., concurs. McFadden, J., concurs in the judgment only.


author: McFadden, Judge.

text:
    A11A1858.
    GROSS v. THE STATE.
    (718 SE2d 581)
   McFadden, Judge.

A jury found Joseph Gross guilty of aggravated assault and battery. The trial court ruled that the battery merged into the aggravated assault, and sentenced Gross to serve six years in confinement and fourteen years on probation for the aggravated assault. Gross appeals, claiming that his trial counsel was ineffective; that the trial court erroneously charged the jury on aggravated assault; and that the trial court, rather than merging the battery into the aggravated assault, should have merged the aggravated assault into the battery. Because trial counsel’s performance was not deficient, because Gross helped induce the trial court into giving the aggravated assault jury charge about which he now complains and the charge as a whole was not erroneous, and because the felony of aggravated assault did not merge into the misdemeanor battery, we affirm.

Construed in favor of the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that on November 11, 2006, Gross and Salvatore Barone got into an altercation in the parking lot of a DeKalb County restaurant. The fight ended when several people separated the men. As Barone bent over to pick up a shoe that had come off during the fight, Gross stepped forward and violently kicked Barone in the head, causing him to fall and hit his head on the concrete parking lot. Barone lost consciousness, began bleeding from his nose, mouth and ears and suffered brain damage.

1. Gross claims that the trial court erred in charging the jury that “[a] person commits the offense of aggravated assault when that person assaults another person with any object [which] when used offensively against a person is likely to or actually does result in serious bodily injury.” Gross maintains that the inclusion of the “actually does” language was improper because the accusation did not include that language and instead charged him with aggravated assault for “mak[ing] an assault on the person of [Barone] with his foot, an object which when used offensively against said person was likely to result in serious bodily injury.”

Gross, however, filed a written request that the trial court give a jury charge on aggravated assault that was virtually identical to the charge given and that included the “actually does” language which he now complains was improper. At the charge conference, Gross told the court that he would withdraw his written request as long as the court gave the Code section definition of aggravated assault. The trial court agreed and the charge that was given indeed tracks the definition of aggravated assault set forth in OCGA § 16-5-21 (a) (2), which provides that “[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith . . . any object . . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Under these circumstances, “[e]ven assuming any error in the trial court’s charge, a party cannot complain about errors he helped induce. [Cit.]” Jones v. State, 287 Ga. 770, 772-773 (4) (700 SE2d 350) (2010).

Furthermore, the argument made by Gross has already been rejected in similar cases. As we previously explained,

the trial court did not charge the jury on the entire aggravated assault statute, but charged the jury on only that part of the statute relating to the allegations of the [accusation]. The trial court’s use of the language “actually does” was extraneous, as the trial court also [sent the accusation out with the jury for deliberations], which excluded any reference to “actually does,” and instructed the jury [that the accusation states the exact offenses charged so they should read it carefully, and] that the State had the burden of proving every material allegation of the accusation and every essential element of the crimes charged beyond a reasonable doubt. Under the circumstances, the charge, when considered in its entirety, fairly instructed the jurors that they could convict the defendant only of the offense with which he was charged in the [accusation]. Accordingly, we find no reversible error.

(Citation and punctuation omitted.) Jackson v. State, 288 Ga. App. 432, 436 (2) (654 SE2d 232) (2007). See also Gibson v. State, 283 Ga. 377, 381 (7) (659 SE2d 372) (2008) (holding that inclusion of the phrase “actually did” in aggravated assault jury charge was not error even though that phrase did not appear in the indictment).

2. Gross contends that his trial counsel was ineffective in failing to object to the aggravated assault charge discussed above and in failing to request a jury charge on “assault” as a lesser included offense of aggravated assault. For Gross to prevail on his claims of ineffective assistance of counsel, “he must show not only that his trial counsel’s performance was deficient but also that such deficiency worked to his prejudice so that a reasonable probability exists that, but for counsel’s errors, the outcome of his trial would have been different. [Cits.]” Boatright v. State, 289 Ga. 597, 602 (7) (713 SE2d 829) (2011).

With regard to counsel’s failure to object to the aggravated assault jury charge, Gross can show neither deficient performance nor prejudice. As explained above in Division 1, the charge was based on the applicable aggravated assault Code section and the charge as a whole was not erroneous. See Gibson, supra; Jackson v. State, supra. “Failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.” (Citation and punctuation omitted.) Vaughn v. State, 301 Ga. App. 55, 60 (5) (a) (686 SE2d 847) (2009).

As for counsel’s failure to request a jury charge on what Gross refers to as “assault” as a lesser included offense of aggravated assault, we note that Gross has not indicated precisely what jury charge should have been requested. Presumably, he is referring to a charge based on OCGA § 16-5-20 (a), which sets forth alternative methods of committing the offense of simple assault. Regardless of which simple assault charge Gross now believes his counsel should have requested, his defense to the aggravated assault charge was justification. During his trial testimony, he admitted that he stepped forward and kicked Barone, but claimed that he did so because he thought that Barone was going to attack him.

That defense concedes that the defendant’s act was intentional, but was committed for an excusable reason, such as self-defense. Accordingly, [Gross] was either guilty of aggravated assault as charged or not guilty by reason of justification. Pretermitting whether [simple assault] was a lesser included offense of the aggravated assault charge[ ], where, as here, the evidence establishes either the commission of the completed offense as charged, or the commission of no offense, the trial court is not authorized to charge the jury on a lesser included offense.

Decided November 2, 2011.

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Hudson v. State, 296 Ga. App. 692, 695 (2) (675 SE2d 578) (2009). Consequently, the failure to request a jury instruction on simple assault as a lesser included offense of aggravated assault “cannot support a claim of ineffective assistance where as here the evidence does not reasonably raise the issue that [Gross] may be guilty only of the lesser crime. [Cits.]” Chancey v. State, 258 Ga. App. 319, 321 (4) (a) (574 SE2d 383) (2002). See also Burnette v. State, 291 Ga. App. 504, 509 (1) (f) (ii) (662 SE2d 272) (2008) (physical precedent only) (ineffective assistance claim based on failure to request lesser included offense charge failed where appellant did not specify which charge should have been requested and did not show that she might be guilty only of lesser crime).

3. Gross’ argument that the trial court should have merged the aggravated assault felony into the misdemeanor battery has already been rejected by this court. See Kelley v. State, 248 Ga. App. 721, 723 (1) (548 SE2d 357) (2001) (even if merger of battery and aggravated assault were required, “court would have been authorized to merge the misdemeanor into the felony, rather than vice versa”). As we previously held in a similar case, Gross “has cited no cases supporting the proposition that a felony may merge into a misdemeanor, and we decline to adopt such a proposition.” Helmeci v. State, 230 Ga. App. 866, 870 (3) (498 SE2d 326) (1998).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


author: Mikell, Judge.

text:
    A11A1055.
    SITTON v. PRINT DIRECTION, INC. et al.
    (718 SE2d 532)
   Mikell, Judge.

Larry Sitton was fired from his job after his employer discovered, from e-mails on the computer Sitton used at work, that he was taking part in a competing business on the side. After his discharge, Sitton sued his former employer, Print Direction, Inc. (“PDI”), and its president and chief executive officer, William S. Stanton, Jr. (collectively “appellees”), for invasion of privacy and for computer theft and trespass in violation of OCGA § 16-9-93. Appellees counterclaimed on several grounds. Following a two-day bench trial, the trial court entered judgment against Sitton and awarded appel-lees $39,257.71 in damages. Sitton appeals, contending that the trial court erred in rejecting his claims under OCGA § 16-9-93 and for common law invasion of privacy; in the admission of evidence; in finding for appellees on their counterclaim for breach of duty of loyalty; and in the calculation of damages. We affirm the judgment.

“On appeal from the entry of judgment in a bench trial, the evidence must be viewed in the light most favorable to the trial court’s findings of fact,” and we apply the following standard of review:

[F] actual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. OCGA § 9-11-52 (a). The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.

Properly viewed, the record reflects that PDI operated a commercial printing business and that Stanton was responsible for PDFs operations. PDI hired Sitton as an exclusive outside salesperson in January 2005 and employed him as an at-will employee until he was discharged in September 2008. As an outside salesperson, Sitton sold PDFs printing services and was required to bill all sales through PDFs accounting department, in order for the commission to be shared between PDI and Sitton.

When he was first hired, Sitton received a copy of PDFs Employee Manual, which provided that “[ejmployees may not take an outside job . . . with a customer or competitor of PDI.” Nonetheless, during his employment by PDI, and without informing PDI or Stanton, Sitton brokered more than $150,000 in print jobs through Superior Solutions Associates LLC (“SSA”), a print brokerage business which Sitton’s wife started in October 2007 and of which Sitton served as manager. Sitton’s work for SSA was in competition with PDI and continued through the date of his discharge from PDI. By brokering print jobs through SSA, Sitton was able to keep all the profit on the job rather than share the profit with his employer, PDI.

PDI provided Sitton with a laptop computer for use in connection with his work for PDI. However, Sitton chose to use his own computer, which he brought to his office at PDI, connected to PDFs system network, and used for PDI work. Sitton also used this computer for SSA work. When Stanton “caught wind” that Sitton was competing with PDI, he entered Sitton’s office, moved the computer’s mouse, clicked on the e-mail listing which appeared on the screen, and printed certain e-mails from Sitton relating to a job for Apex Printing Company. These e-mails, which were on a separate e-mail address from Sitton’s PDI-issued e-mail address, confirmed that Sitton was using SSA to compete with PDI. Stanton subsequently terminated Sitton as an employee of PDI.

1. Sitton contends that the trial court erred in determining that Stanton’s viewing and printing the incriminating e-mails found on Sitton’s personal computer did not constitute computer theft, computer trespass, or computer invasion of privacy under OCGA § 16-9-93. The court found that Stanton’s use of Sitton’s computer was not “without authority” within the meaning of the statute. We find no error.

The criminal offenses of computer theft, computer trespass, and computer invasion of privacy are set forth in OCGA § 16-9-93, which also provides for civil liability and a civil remedy. Computer theft is committed by one “who uses a computer or computer network with knowledge that such use is without authority and with the intention of” taking, obtaining, or converting property of another. Similarly, a person commits computer trespass when he “uses a computer or computer network with knowledge that such use is without authority and with the intention of” deleting any computer program or data; obstructing or interfering with use of a computer program or data; or altering, damaging, or causing to malfunction a computer, computer network, or computer program. A person commits computer invasion of privacy when he uses a computer or computer network “with the intention of examining any employment, medical, salary, credit, or any other financial or personal data relating to any other person with knowledge that such examination is without authority.”

It can be seen that these three computer offenses include at least the following elements: that the proscribed actions be taken “with knowledge” that the use of the computer or the examination of the other person’s data was “without authority” and that the actions be taken with the requisite intent.

We first note that the evidence fails to show that Stanton’s use of Sitton’s computer was “with the intention of” performing any of the acts forbidden by the statute. Stanton did not, nor did he intend to: take, obtain, or convert Sitton’s property (computer theft); delete any computer program or data, obstruct or interfere with a computer program or data, or alter or damage a computer, computer network, or computer program (computer trespass); or examine Sitton’s personal data (computer invasion of privacy). Thus, Stanton’s actions do not fall within the scope of subsections (a), (b), or (c) of OCGA § 16-9-93.

Another element of these offenses — lack of authority — is also absent. The term “without authority” is defined to include “the use of a computer or computer network in a manner that exceeds any right or permission granted by the owner of the computer or computer network.” In the case at bar, Stanton found the incriminating e-mails on the computer Sitton used to conduct business for PDI. This computer was located in PDFs offices but was actually owned by Sitton. The trial court found that Stanton had authority to inspect this computer pursuant to the computer usage policy contained in PDFs Employee Manual, which Sitton had agreed to abide by when he started work with PDI.

Contrary to Sitton’s contention, PDFs computer usage policy was not limited to PDI-owned equipment. The policy adverted to the necessity for the company “to be able to respond to proper requests resulting from legal proceedings that call for electronically-stored evidence” and provided that for this reason, its employees should not regard “electronic mail left on or transmitted over these systems” as “private or confidential.” The trial court, acting as finder of fact, found that Stanton looked at an e-mail on the screen of Sitton’s computer at PDI. Whether the e-mail was stored there permanently or only temporarily, the e-mail was subject to review under the company’s computer usage policy. Even if the e-mail was “stored” elsewhere, the company’s policy also stated that “PDI will. . . inspect the contents of computers, voice mail or electronic mail in the course of an investigation triggered by indications of unacceptable behavior.”

Sitton’s reliance on Pure Power Boot Camp v. Warrior Fitness Boot Camp is misplaced. In that case, a former employer hacked into its former employee’s e-mail accounts without authorization. In the case before us, the trial court did not find evidence of hacking. Instead, the court found that, when Stanton moved the mouse, the e-mail account appeared on the screen of Sitton’s computer. Sitton challenges this finding, but because there is evidence to support it, we will not disturb it on appeal. Because Stanton’s actions were not taken “without authority,” the trial court did not err in denying Sitton’s claim under OCGA § 16-9-93.

2. Sitton contends that the trial court erred in ruling for appellees on his claim for common law invasion of privacy based upon an “intrusion upon [his] seclusion or solitude, or into his private affairs.” We disagree.

“The ‘unreasonable intrusion’ aspect of the [tort of] invasion of privacy involves a prying or intrusion, which would be offensive or objectionable to a reasonable person, into a person’s private concerns.” In order to show the tort of unreasonable intrusion, a plaintiff must show “a physical intrusion which is analogous to a trespass”; however, “this ‘physical’ requirement can be met by showing that the defendant conducted surveillance on the plaintiff or otherwise monitored [plaintiffs] activities.” In the case before us, no such surveillance took place.

Even if Stanton’s review of Sitton’s e-mails could be seen as “surveillance,” it still does not rise to the level of an unreasonable intrusion upon Sitton’s seclusion or solitude, because Stanton’s activity was “reasonable in light of the situation.” Stanton acted in order to obtain evidence in connection with an investigation of improper employee behavior. In the case before us, as in Yarbray, “the company’s interests were at stake.” Stanton had every reason to suspect that Sitton was conducting a competing business on the side, as in fact he was. As our Supreme Court has noted, “[T]here are some shocks, inconveniences and annoyances which members of society in the nature of things must absorb without the right of redress.” The trial court correctly found that Stanton’s perusal of Sitton’s e-mail on Sitton’s computer, which Sitton used in conducting business for PDI, did not constitute such an unreasonable intrusion as to rise to the level of invasion of privacy.

3. Sitton argues that the Employee Manual was actually a contract, to which the rules for construction of contracts should be applied. Sitton has failed to show this Court that he raised this argument below, that the trial court ruled on it, or that he preserved the alleged error for our consideration. Therefore, this enumeration of error presents nothing for appellate review. “[An] appellate court will not consider an issue raised for the first time on appeal, because the trial court has not had the opportunity to consider it.”

4. Sitton asserts that the trial court erred in admitting into evidence an e-mail and the PDI Employee Manual. This enumeration of error fails.

(a) Sitton contends that the trial court erred in admitting into evidence an incriminating e-mail which he sent to Debbie Burkett at Apex Printing on September 7, 2008, and which Stanton subsequently found on Sitton’s computer at PDI. Sitton contends that the e-mail was not admissible because Stanton obtained it in violation of OCGA § 16-11-62 (3), a statute concerning unlawful eavesdropping or surveillance.

OCGA § 16-11-62 (3) makes it unlawful for anyone “to go on or about the premises of another or any private place . . . for the purpose of invading the privacy of others by eavesdropping upon their conversations or secretly observing their activities.” This statute, by its plain language, is not applicable to the situation at bar. First, the evidence does not show that Stanton went “on or about the premises of another or any private place.” On the contrary, Stanton went into Sitton’s office at PDI. This office was owned by the business of which Stanton was the chief executive officer and was used by an employee, Sitton, who was under Stanton’s authority. There is no evidence that Stanton eavesdropped on Sitton’s conversations or secretly observed his activities. The trial court did not err in admitting the disputed e-mail.

(b) Sitton contends that the trial court abused its discretion in denying his motion to strike PDFs Employee Manual from evidence. Sitton argues that appellees did not admit the Employee Manual into evidence at trial and that the Manual was not in compliance with the “best evidence” rule.

This enumeration is not supported by the record. Sitton himself introduced the Employee Manual into evidence, without objection from appellees, during the motion in limine phase of the trial. Sitton did not request that the Manual be admitted for a limited purpose at that time, and it was admitted into evidence without limitation. During his case-in-chief, Sitton testified on direct, based in part on the Employee Manual. During appellees’ case-in-chief, appellees’ counsel asked Sitton on cross, “Have you looked at the [Employee Manual] that’s been admitted into evidence in this case?” Sitton did not object at that time or during the subsequent testimony concerning the Employee Manual; in particular, Sitton did not object on “best evidence” grounds. Several months after the trial, Sitton filed a motion to strike evidence relating to the Employee Manual. The trial court denied this motion.

In light of the fact that Sitton himself introduced this evidence, relied on it in his case-in-chief, and failed to object when Stanton’s counsel described it as having been admitted into evidence in the case, he has waived any purported error in the denial of his motion to strike. Sitton “cannot now complain on appeal of alleged error which [he] induced and in which [he] specifically acquiesced.” Self-induced error does not provide ground for reversal.

5. In his fifth enumeration of error, Sitton challenges the trial court’s entry of judgment against him on PDI’s counterclaim for breach of duty of loyalty. We find no error.

Sitton first asserts that he was an independent contractor, not an employee, of PDI, but he has failed to support this argument by citation to the record or to authority. This claim of error is therefore deemed abandoned. Even had the alleged error not been abandoned, however, it is without merit. Ample evidence in the record supports the trial court’s finding that Sitton was an at-will employee of PDI, hired as an exclusive outside salesperson; that he reported to Stanton, who had the authority to control the time, manner, and method of Sitton’s performance of his duties; that Stanton had the authority to fire him; and that, pursuant to the Employee Manual, he was subject to rules or policies which PDI might adopt in the future. Moreover, there was evidence that Sitton had authority to solicit business on PDFs behalf and to bind PDI for certain obligations, which authorized the trial court to find that Sitton, as PDFs agent, owed a fiduciary obligation to his employer, PDI.

Sitton next asserts that he owed no duty of loyalty to PDI, but he does not address this argument in his brief. Instead, he argues that appellees “failed to meet their burden of establishing entitlement to relief for misappropriation of a business opportunity.” This argument is misplaced. Appellees did not assert, and the trial court did not rule on, this ground. Sitton’s brief gives no indication whether this argument was raised below. For the reasons stated in Division 3 above, we cannot consider this argument on appeal.

As to Sitton’s unsupported argument that he did not owe any duty of loyalty or fiduciary duty to his employer PDI, we conclude that it is without merit. Although an employee does not breach the fiduciary duty owed to his employer simply by making plans, while he is still employed, to enter a competing business at a future time, “[h]e is not. . . entitled to solicit customers for a rival business before the end of his employment nor can he properly do other similar acts in direct competition with the employer’s business.” Here, the trial court found that competition against PDI by its employees was specifically prohibited by the terms of PDFs Employee Manual; that Sitton agreed to abide by the Employee Manual; and that Sitton engaged in a rival business through SSA while he was employed by PDI. Thus, the trial court’s finding that Sitton breached his duty of loyalty to PDI was supported by some evidence and will not be disturbed on appeal.

Decided September 28, 2011

Reconsideration denied November 3, 2011.

Stephen M. Katz, Victor S. Roberts, for appellant.

6. Without citing authority, Sitton asserts error in the trial court’s calculation of damages. This enumeration fails.

The trial court found that PDFs loss of business to SSA caused PDI damage and resulted in layoffs of employees. Evidence adduced at trial showed the total amounts Sitton billed for SSA’s print services while he was still employed by PDI. The trial court treated these amounts as gross sales lost by PDI due to Sitton’s breach of loyalty and fiduciary duty. The court then multiplied the 2007 and 2008 totals by PDFs profit percentage experienced during those respective years to arrive at the total net profit lost by PDI due to Sitton’s diversion of this business to SSA. That the amount the court awarded exceeded the amount of commissions SSA paid to Sitton during this time period is irrelevant. The question of damages is ordinarily one for the jury. The trial court, acting as finder of fact, issued an award well within the range of evidence and testimony presented at trial.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

Fisher & Phillips, Burton F Dodd, for appellees.

       This statute is part of the Georgia Computer Systems Protection Act, OCGA § 16-9-90 et seq.

       (Citation omitted.) Realty Lenders v. Levine, 286 Ga. App. 326-327 (649 SE2d 333) (2007).

       (Citations and punctuation omitted.) Sam’s Wholesale Club v. Riley, 241 Ga. App. 693 (527 SE2d 293) (1999). Accord Lifestyle Home Rentals v. Rahman, 290 Ga. App. 585 (660 SE2d 409) (2008).

       OCGA § 16-9-93 (g) (1).

       OCGA § 16-9-93 (a) (l)-(3).

       OCGA § 16-9-93 (b) (l)-(3).

       OCGA § 16-9-93 (c).

       See DuCom v. State, 288 Ga. App. 555, 562-563 (4) (654 SE2d 670) (2007) (evidence sufficient to show computer theft where defendant employee copied employer’s data without authority); Stargate Software Intl. v. Rumph, 224 Ga. App. 873, 879-880 (6) (482 SE2d 498) (1997) (jury issue as to whether defendant had knowledge that its use of plaintiffs computers was without authority).

       OCGA § 16-9-92 (18). “ ‘Computer network’ means a set of related, remotely connected computers and any communications facilities with the function and purpose of transmitting data among them through the communications facilities.” OCGA § 16-9-92 (2).

       587 FSupp.2d 548, 555 (I) (A), 559 (I) (D) (S.D.N.Y. 2008) (applying the Stored Communications Act, 18 USC § 2701 et seq.).

       Id. at 552.

        Brannon v. Perryman Cemetery, 308 Ga. App. 832, 833 (709 SE2d 33) (2011) (“appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them”) (citation omitted).

       (Footnote omitted.) Cabaniss v. Hipsley, 114 Ga. App. 367, 370 (151 SE2d 496) (1966) (listing four types of invasion of privacy, one of which is intrusion).

       (Citations omitted.) Yarbray v. Southern Bell &c. Co., 261 Ga. 703, 705 (1) (409 SE2d 835) (1991).

       (Citations and punctuation omitted.) Anderson v. Mergenhagen, 283 Ga. App. 546, 550 (2) (642 SE2d 105) (2007).

       Id.

       Id. at 551 (2).

       See id. (“Reasonable surveillance is recognized as a common method to obtain evidence to defend a lawsuit”).

        Yarbray, supra.

       (Citation and punctuation omitted.) Id. Accord Udoinyion v. Re/Max of Atlanta, 289 Ga. App. 580, 584 (657 SE2d 644) (2008).

       See discussion of “unreasonable intrusion” tort in Benedict v. State Farm Bank, 309 Ga. App. 133, 137 (1) (a) (709 SE2d 314) (2011) (defendant’s annoying calls to plaintiff did not amount to actionable intrusion where no surveillance, physical trespass, or physical touching was alleged).

       See Court of Appeals Rule 25 (a) (1).

       (Citation and punctuation omitted.) Thompson v. Princell, 304 Ga. App. 256, 259 (a) (696 SE2d 91) (2010).

       Sitton and the trial court both misstated the date of this e-mail as September 15, 2008.

       Under OCGA § 16-11-67, evidence obtained in violation of OCGA § 16-11-62 is not admissible.

       The trial court’s ruling on the motion in limine addressed only the admissibility of the September 7, 2008, e-mail (which, as noted above, the trial court mistakenly referred to as the September 15 e-mail).

       (Footnote omitted.) Cherokee Nat. Life Ins. Co. v. Eason, 276 Ga. App. 183, 187 (2) (622 SE2d 883) (2005).

        Harper v. Hurlock, 281 Ga. App. 265, 266 (635 SE2d 874) (2006).

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

       See Davis v. Beasley Timber Co., 241 Ga. App. 706, 707-708 (1) (527 SE2d 221) (1999), citing Ross v. Ninety-Two West, Ltd., 201 Ga. App. 887, 891-892 (3) (412 SE2d 876) (1991) (contract describing party as “independent contractor” does not control if at the same time it provides that he shall be subject to any employer rules adopted in future).

       See Hilb, Rogal & Hamilton Co. of Atlanta v. Holley, 295 Ga. App. 54, 58 (2) (670 SE2d 874) (2008). See also Physician Specialists in Anesthesia v. Wildmon, 238 Ga. App. 730, 735 (3) (521 SE2d 358) (1999) (“a cause of action against an employee for breach of loyalty must be based upon a fiduciary duty owed by the employee and must rise and fall with any claim for breach of fiduciary duty”) (footnote omitted).

        Hanson Staple Co. v. Eckelberry, 297 Ga. App. 356, 358 (1) (677 SE2d 321) (2009).

       (Citation and punctuation omitted.) Nilan’s Alley, Inc. v. Ginsburg, 208 Ga. App. 145 (1) (430 SE2d 368) (1993). Accord Instrument Repair Svc. v. Gunby, 238 Ga. App. 138, 140 (1) (518 SE2d 161) (1999). See also OCGA § 10-6-25 (“The agent shall not make a personal profit from his principal’s property”).

       Compare Vernon Library Supplies v. Ard, 249 Ga. App. 853, 855 (3) (550 SE2d 108) (2001) (judgment for employee following bench trial affirmed where some evidence supported conclusion that employee did not directly compete with employer before the end of his employment).

       OCGA § 51-12-12 (a).

       See T. C. Property Mgmt. v. Tsai, 267 Ga. App. 740, 741 (600 SE2d 770) (2004).