author: DOYLE, Presiding Judge.

text:
    A13A1465.
    BROWN v. THE STATE.
    (750 SE2d 453)
   DOYLE, Presiding Judge.

Johnny L. Brown was convicted of terroristic threats, six counts of aggravated assault, possession of a firearm during the commission of a felony, and criminal damage to property in the second degree. After the trial court denied his motion for new trial, Brown filed this appeal, arguing that (1) his trial counsel was ineffective; and (2) the evidence was insufficient. For the reasons that follow, we affirm.

Viewing the evidence in the light most favorable to the verdict, the record shows that about two weeks prior to the incident in question, Shanteria Miller and Brown had ended their relationship, angering Brown. At the time, Miller was living with her parents, sister, and her young daughter at 2285 Burdett Ridge Drive. Although the two had not seen each other since the break-up, Miller and Brown continued to be in contact via phone calls and text messages, including on the evening in question.

In the early morning hours of November 8, 2007, Miller received numerous phone calls from Brown, and after initially avoiding his calls, she finally answered. Miller testified that Brown wanted to know if she was at home, which she denied, and he then told her he was going to kill her and was on the way to her house. Miller got dressed, dressed her young daughter, and left to go to her brother’s house without telling her mother or sister because she believed that Brown would not injure them if she was not at home.

Miller then called her across-the-street neighbor, Diane Pritchett, and asked her to watch her house and make sure that Miller’s mother left to go to work without incident. She also warned Pritchett to look out for Brown’s car, which she described as a yellow and brown Ford LTD. Pritchett called Miller back to confirm when she should be watching for Miller’s mother and was on the phone with Miller and looking out her window when she saw the car described by Miller drive up to Miller’s house and saw the driver firing a gun from the vehicle. Miller told Pritchett to call 911, which Pritchett did.

Miller continued to her brother’s house, but on the way, she called her house to check on her mother and sister; when she arrived at her brother’s house and explained the situation, they both returned to the scene to check on their family. When they arrived, Miller saw holes in the house and emergency personnel were on the scene. While Miller was standing outside surveying the scene, she received numerous text messages from Brown, some of which were apologetic and some of which were threatening; so she showed the phone to police.

Miller’s mother, Sheryl, testified that she and her six-year-old daughter were at 2285 Burdett Ridge Drive on the morning in question, and she had gone downstairs to the kitchen to prepare breakfast; before she could return upstairs, the shooting began. Sheryl was unsure what was happening at first, and she was frightened by the popping sounds, debris, and smoke from the bullets; she called her husband, who instructed her to call 911, which she did. Miller’s brother testified that his mother was crying when he arrived and that spent firearm shells were everywhere. A police officer who arrived at the scene testified that multiple gunshot holes were in the side of Miller’s home. Another officer testified that the shell casings were from an AK-47 assault rifle.

Sharon Johnson, who was babysitting at a nearby home during the incident, heard the gunshots and came out to find that her vehicle, which was parked on the street, had been hit by a car that left yellow paint in the damaged area, and her car alarm was sounding off.

Miller testified that she and Brown reunited as a couple after the incident because she thought it would protect her family from further harm. She testified that she talked to him repeatedly while he was in jail awaiting trial, and he tried to get her to convince the witnesses to refuse to testify.

After trial, the jury found Brown guilty of all counts, and he filed a motion for new trial, which was later amended. The trial court denied the amended motion after a hearing, and this appeal followed.

1. Brown contends that the evidence was insufficient to support the verdict.

(a) First, Brown contends that the evidence was insufficient to support his convictions because the evidence did not exclude every reasonable hypothesis except for guilt. We disagree.

In support of this, Brown cites to Miller’s testimony in which she states that another ex-boyfriend had threatened to kill her because he did not want her to date someone else. Miller, however, testified that the individual did not know that she was dating Brown until after the incident in question and did not make the death threat until after the incident. Brown also cites to the facts that the car was never found, no firearm was recovered, and no one at the scene could visually identify the shooter. He also points to his testimony, the testimony of his father, and the testimony of his friend, who all contended that Brown was not the shooter.

Nevertheless, the evidence as stated above was sufficient to support the jury’s verdict that Brown committed the acts in question. Pritchett testified that a vehicle fitting the description of Brown’s car was driven by the shooter, and Miller testified that Brown had threatened to come to her house and kill her earlier that morning. Furthermore, Miller received text messages from Brown later that morning apologizing “for what happened,” which supports Miller’s version of events. Under these circumstances, the jury was authorized to believe Miller and to conclude that Brown was the shooter. Accordingly, the evidence was sufficient to support the verdict.

(b) Next, Brown argues that the evidence was insufficient to support his conviction for criminal damage to property in the second degree because there was no evidence that the damage to the neighbor’s vehicle was intentional.

“OCGA § 16-7-23 (a) (1) . . . provides that a person commits criminal damage to property in the second degree when he intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00.”

[A] person is not presumed to act with criminal intent. [Nevertheless,] the factfinder may consider the circum- • stances surrounding the act for which the accused is being prosecuted in determining whether the requisite intent is manifested by the circumstances, and this court will not disturb that factual determination unless it is contrary to the evidence and clearly erroneous.

Brown contends that even assuming he was the driver of the car that struck Johnson’s vehicle while it was parked on the side of the street, the State failed to submit any evidence to support a finding that the damage to the vehicle was other than accidental. Nevertheless, the jury was properly charged on the offense of criminal damage to property, including that the requisite intent, and the facts presented support the verdict because the jury was authorized to find that as a result of his flight from his intentional criminal actions of firing a firearm into the Millers’ home, he damaged Johnson’s vehicle.

(c) Finally, Brown argues that the evidence was insufficient to support his conviction for terroristic threats because the State failed to present corroborating evidence. We disagree.

Brown contends that because no one besides Miller heard his alleged threat to come to her house and kill her on the morning of the incident, the State failed to present sufficient evidence to support his conviction for terroristic threats.

A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence with the purpose of terrorizing another. The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize. But no person shall be convicted of the offense of terroristic threats based on the uncorroborated testimony of the person to whom the threat was communicated. OCGA § 16-11-37 (a). Nevertheless, it is well established that the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged.

In this case, the threat was corroborated by Pritchett’s testimony that a vehicle fitting the description of that owned by Brown was the vehicle driven by the shooter and Brown’s text messages to Miller after the incident. “ ‘Slight circumstances may be sufficient for corroboration^] and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this [Cjourt will not go behind the jury verdict and pass on its probative value.’ ”

2. Brown also contends that trial counsel was ineffective.

To establish ineffective assistance of counsel under Strickland v. Washington,[] [Brown] must prove (1) that [his] trial counsel’s performance was deficient, and (2) that counsel’s deficiency so prejudiced [his] defense that a reasonable probability exists that the result would have been different but for the deficiency. The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous. Additionally, a court is not required to address the performance portion of the inquiry before the prejudice component or even to address both components if the defendant has made an insufficient showing on one.
The decisions on which witnesses to call, whether and how to conduct cross-examination, which jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of counsel after consultation with the client. Trial counsel’s strategic decisions made after thorough investigation are virtually unchallengeable. They provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.

(a) First, Brown argues that trial counsel was ineffective because he seated an unqualified juror. Specifically, Brown contends that Juror 21 answered affirmatively when trial counsel asked the venire to indicate “if you have such strong feelings about the use of guns that it would overrule your ability to be fair and listen to the evidence in this case . . . .” Juror 21 indicated that she had such feelings, and Brown contends that trial counsel’s failure to further voir dire or rehabilitate Juror 21 before seating her on the jury constituted ineffective assistance of counsel because she was admittedly unable to render a fair verdict when she was placed on the jury. We disagree.

It is axiomatic that a verdict rendered by an illegally constituted jury must be set aside. ... In the absence of a strategic motive, a defendant whose attorney fails to attempt to remove biased persons from a jury panel is prejudiced. Moreover, even without a showing of actual bias, prejudice may be implied in certain egregious situations.

Even presuming that trial counsel performed deficiently by failing to inquire further or to rehabilitate Juror 21, Brown has failed to establish prejudice under Strickland. It is true that Juror 21 answered affirmatively to the question; however, she did not answer affirmatively when asked if she had formed or expressed an opinion as to Brown’s guilt or innocence, did not answer affirmatively when asked if she had any prejudice or bias for or against Brown, and did not indicate otherwise than that her mind was perfectly impartial between the State and Brown.

The question raised to the venire was whether the potential jurors’ feelings about guns would affect their ability to be fair, and although the crime involved the use of a gun, there was no testimony regarding Brown’s ownership or possession of guns generally, and his defense was that he denied being the shooter. Moreover, many of the cases cited by Brown in which prejudice is presumed based solely on the juror’s statements during venire include relationships that would constitute a for-cause strike, such as Kirkland v. State, in which the Supreme Court of Georgia presumed prejudice with regard to stockholders of the victim company who were seated on the jury. In any event, based on the record in this case, we decline to hold that Juror 21’s affirmative answer to this question falls into the same category as a juror who is related to a party or who has a pecuniary interest in a party. Because Brown failed to sufficiently show prejudice at the motion for new trial hearing, he has failed to establish ineffective assistance of counsel as to this issue.

(b) Brown also argues that counsel was ineffective for failing to object to the testimony of a domestic violence expert because the testimony was irrelevant and prejudicial. We disagree.

Brown’s defense centered on his contention that he did not commit the acts in question, and he attacked Miller’s truthfulness on the stand by eliciting testimony regarding her continued relationship with him after the events in question. The domestic violence expert testified about how cycles of violence occur in such relationships and explained why Miller could have continued to be in a relationship after the incident if she indeed believed that Brown was the perpetrator. While Brown contends that trial counsel should have objected because the State failed to lay the proper foundation to admit the expert testimony, Miller had testified that the two engaged in physical violence and verbal abuse, even if those episodes were not extensive. “[E] xpert testimony is admissible to explain the behavior of a domestic violence victim who does not report abuse or leave the abuser.” Brown attacked Miller’s credibility, and therefore, because the evidence was admissible to counter Brown’s credibility attack, and “counsel’s failure to make a meritless objection [to the admission of this expert testimony] does not constitute deficient performance.”

(c) Finally, Brown argues that counsel was ineffective for failing to object to the State’s “future dangerousness” argument. We disagree.

During argument, the State contended that Miller was “trying to get into that honeymoon phase [with Brown] however she can. She wants to be out of that attention phase, because he’s all attention. When the explosion happens, we saw what happened. He shoots up the house. What’s going to happen next time?” Trial counsel did not object to this statement, and the State moved on to argue why Brown’s contention that another individual committed the acts was not believable and how various pieces of evidence corroborated Miller’s testimony that Brown threatened her.

Our Supreme Court has repeatedly condemned argument about a defendant’s future dangerousness during the guilt-innocence phase of a trial because it simply is irrelevant to the question of whether, under the facts introduced into evidence, the defendant is guilty beyond a reasonable doubt of the crime charged.

Decided November 8, 2013

Reconsideration denied December 3, 2013

Sheueli C. Wang, Margaret E. Flynt, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

Pretermitting whether the evidence against Brown was overwhelming, the trial court correctly denied the motion for new trial on this ground. The prosecutor’s remark was an isolated comment during his explanation of the cycle of violence within Brown’s and Miller’s relationship. The State’s single, off-hand comment does not rise to the level of egregiousness necessary to establish prejudice under Strickland.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-11-37 (a).

       OCGA § 16-5-21 (a) (2), (3).

       OCGA § 16-11-106 (b) (1).

       OCGA § 16-7-23 (a) (1).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
      On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia[, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)]. This same standard applies to our review of the trial court’s denial of [the defendant’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
      (Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

       The State introduced numerous recordings of phone calls between Brown, Miller, and other parties, but the recordings were not included in the record on appeal.

        See Jones v. State, 318 Ga. App. 26, 29 (1) (a) (733 SE2d 72) (2012) (holding that evidence was sufficient even if the witnesses’ testimonies, which constituted the bulk of the evidence against the defendant, were inconsistent because “any alleged inconsistencies in the evidence and issues of the witnesses’ credibility ‘were for the jury, not this Court, to resolve’ ”). Compare with Patterson v. State, 287 Ga. App. 100, 103 (2) (650 SE2d 770) (2007) (reversing conviction because no testimony regarding the identity of the alleged male driver of a car apart from registration listing defendant’s sister as the owner and both sister and defendant were unknown to the driver).

       (Punctuation omitted.) Youmans v. State, 270 Ga. App. 832, 837 (2) (608 SE2d 300) (2004).

        Burden v. State, 187 Ga. App. 778, 779 (1) (371 SE2d 410) (1988).

       See Helton v. State, 216 Ga. App. 748, 749 (455 SE2d 848) (1995) (upholding conviction of defendant who claimed accident when he hit various cars while attempting to evade police). “Every person is presumed to intend the natural and probable consequences of his conduct, particularly if that conduct [is] unlawful and dangerous to the safety or lives of others.” Keye v. State, 136 Ga. App. 707, 708 (1) (222 SE2d 172) (1975).

       (Citation and punctuation omitted.) Schneider v. State, 312 Ga. App. 504, 506 (1) (718 SE2d 833) (2011).

       See, e.g., Wilson v. State, 291 Ga. App. 263, 264 (1) (661 SE2d 634) (2008) (testimony that a gun was recovered from the area corroborated victim’s testimony of threats).

       Id.

       466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).

       (Punctuation and footnotes omitted.) Simons v. State, 311 Ga. App. 819, 821 (2) (717 SE2d 319) (2011), quoting Jackson v. State, 284 Ga. App. 619, 627-628 (11) (644 SE2d 491) (2007).

       (Punctuation omitted.) Abernathy v. State, 278 Ga. App. 574, 586 (3) (b) (630 SE2d 421) (2006).

       During Juror 21’s individual voir dire, she indicated that she had two very good friends who were police officers, but she did not believe her relationship with them would affect her ability to be fair.

       (Citations and punctuation omitted.) Kirkland v. State, 274 Ga. 778, 780 (2) (560 SE2d 6) (2002).

       See OCGA § 15-12-163 (b).

       See Kirkland, 274 Ga. at 780 (2).

       Compare with id.; Titel v. State, 981 S2d 656, 659 (Fla. Ct. App. 2008) (persuasive authority).

        Alvarado v. State, 257 Ga. App. 746, 748 (2) (572 SE2d 18) (2002).

       (Punctuation omitted.) Russell v. State, 322 Ga. App. 553, 557 (3) (c) (745 SE2d 774) (2013). See also Parrish v. State, 237 Ga. App. 274, 277 (2) (i) (514 SE2d 458) (1999) (because defendant placed victim’s credibility at issue, expert testimony regarding abusive relationships was relevant).

       (Punctuation omitted.) Williams v. State, 261 Ga. App. 511, 516 (3) (583 SE2d 172) (2003). See also Reed v. State, 291 Ga. 10, 16 (4) (b) (727 SE2d 112) (2012).

       See Hambrick v. State, 278 Ga. App. 768, 771-772 (3) (629 SE2d 442) (2006). Compare with Williams, 261 Ga. App. at 517-518 (3).


source: Caselaw Access Project

author: MCMILLIAN, Judge.

license: Public Domain

text:
    A13A1613.
    STC TWO, LLC v. SHULMAN-WEINER et al.
    (750 SE2d 730)
   MCMILLIAN, Judge.

STC Two, LLC appeals the trial court’s grant of summary judgment to Irma Fox Shulman-Weiner (“Weiner”) and Susan Tessel (“Tessel”), as co-trustees of the Irving Shulman Trust (the “Trust”), and Staircase Old National, LLC (“Staircase”) (collectively “Appellees”) on STC’s complaint arising out of a purported agreement to modify a longstanding lease agreement.

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). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) 685 Penn, LLC v. Stabilis Fund I, L.P., 316 Ga. App. 210, 210 (728 SE2d 840) (2012).

So viewed, the evidence shows that the Trust and Staircase jointly own real property in south Fulton County (the “Property”). Weiner, co-trustee of the Trust, and Stanford Shulman (“Shulman”), the sole member and registered agent for Staircase, have had an ownership interest in the Property for over 50 years. On June 27, 1997, Weiner and Shulman, in their individual capacities, entered into a “PCS Site Agreement” (the “Lease”) with Sprintcom, Inc. (“Sprintcom”). Under the terms of the Lease, Sprintcom rented a portion of the Property (the “Site”), upon which it constructed towers and other wireless communication structures. The Lease provided for four automatic renewals of the original five-year lease term and thus was slated to expire on June 27, 2022. At the time this dispute arose, Sprintcom and/or STC, as Sprintcom’s assignee, had exercised the option to renew the lease for two five-year renewal terms.

The record reflects three subsequent amendments to the Lease, and it appears that the first two amendments to the Lease also may have been signed by Sprintcom and by Weiner and Shulman in their individual capacities. The record contains a signed copy of a “First Amendment to PCS Site Agreement,” which Appellees produced in discovery. This amendment was signed by Sprintcom and Weiner and Shulman in their individual capacities. The record also contains an unsigned copy of a “Second Amendment to PCS Site Agreement,” apparently from 2001, also produced by Appellees in discovery. That document, too, contains signature lines for Sprintcom and for Weiner and Shulman in their individual capacities. But the “Third Amendment to PCS Site Agreement,” executed in February 2010, was signed by STC on the one hand and Weiner and Tessel, as co-trustees of the Trust, and by Shulman on behalf of Staircase on the other. The recitals to the third amendment reflect that Staircase and the Trust were representing that they were the owners of fee simple title to the Lease Site and further reflect that Sprintcom had assigned its interest under the Lease to STC, which in turn had subleased the Site to a third party. The parties apparently agree that we should consider STC to be the lessee and the Trust and Staircase to be the lessors under the Lease.

Subsequently, in April 2011, Chris Felder (“Felder”), a senior land acquisition specialist for Crown Castle, an affiliate of STC, began contacting Weiner to discuss the possibility of modifying the Lease to incorporate additional renewal periods. Based on these discussions, STC proffered to Weiner and Shulman a letter agreement dated April 7, 2011, which proposed adding six additional lease terms, with a final expiration date of June 26, 2052, in exchange for $50 in consideration. This proposed letter agreement defined the term “Lessor” to mean Weiner and Shulman, individually, without referencing the Trust, Staircase or Tessel, Weiner’s co-trustee. The signature lines also listed Weiner and Shulman in their individual capacities. The letter agreement further contemplated that these parties would later enter into a formal amendment to the Lease. An accompanying e-mail from Felder stated that “we are only proposing to modify the length of time on the [Lease], and as such, the other provisions of the [Lease] are not addressed in the letter.”

In response, Weiner and Shulman proposed a change to the $50 consideration in the April 7 letter. Instead of a one-time $50 payment, they proposed either payments of $250 per year for each year the extension was granted or a one-time payment of $7,500. STC countered this offer with a revised letter agreement dated May 26, 2011 (the “Revised Agreement”), which retained the $50 in consideration, but added the following provision:

[STC] agrees to pay [Weiner and Shulman] the sum of Seven Thousand Five Hundred Dollars ($7,500.00) for executing and delivering the Letter Agreement to [STC] by no later than June 1, 2011, and executing and delivering the Lease Amendment to Lessee within ten (10) days of receipt of the executable document(s) (the “Expedite Fee”). [Weiner and Shulman] understand[ ] time is of the essence and if the signed Lease Amendment is not delivered to [STC] within the specified time period, [Weiner and Shulman] forfeit [ ] the Expedite Fee. [Weiner and Shulman] further agree[ ] that if the Lease Amendment is not fully executed for any reason, [Weiner and Shulman] forfeit [ ] the Expedite Fee. The Expedite Fee is a one-time payment due and payable within sixty (60) days of the full execution of the Lease Amendment.

The Revised Agreement retained the same definition of “Lessor” and the same signature lines in Weiner’s and Shulman’s individual capacities. It, too, made no reference to the Trust, Tessel, or Staircase.

After a series of e-mails and letters from Felder prompting Weiner and Shulman to sign the letter agreement, they finally executed and returned the Revised Agreement on June 1, 2011. However, on or around June 27 and/or June 29, 2011, Weiner and Shulman appear to have notified STC that they were terminating the Revised Agreement on the ground that STC was in default by failing to pay the Expedite Fee and by failing to deliver a proposed lease amendment by June 1, 2011. Subsequently, on July 6, 2011, counsel for Weiner and Shulman returned to STC as untimely and insufficient, two checks totaling $50 made payable to Weiner and Shulman. The counsel’s cover letter indicates that although the checks were dated June 15, 2011, they were received only a few days earlier.

At some point, STC forwarded a proposed “Fourth Amendment to PCS Site Agreement,” proposing to amend the agreement to add additional renewal terms extending the lease term through June 26, 2052 (the “Proposed Amendment”). The Proposed Amendment, however, defined the term “Lessors” to mean Weiner and Tessel as co-trustees of the Trust and Staircase, and included signature lines for Weiner, Tessel and Shulman in their respective representative capacities. Although the Proposed Amendment added six additional five-year terms with a final expiration of June 26, 2052, it did not specifically address the rent to be paid under those extensions. Rather, it provided that all other terms of the Lease, as amended, would remain in full force and effect, which effectively proposed that the lease amounts set forth in the Lease, as amended, also would remain in effect during the renewal periods.

When Weiner, Tessel, and Shulman failed to sign the Proposed Amendment, STC filed the complaint in this action seeking declaratory relief, specific performance and damages. The parties subsequently filed cross-motions for summary judgment, and following a hearing and further briefing, the trial court granted the Appellees’ summary judgment motion and denied STC’s motion. The order further declared that the original renewal term of the Lease remained in effect, and the Lease would terminate on June 27, 2022. This appeal followed.

1. STC first argues that the trial court erred in granting summary judgment to the Appellees because they failed to present sufficient evidence to refute the validity and enforceability of the Revised Agreement. Stated another way, STC asserts that Weiner’s and Shulman’s individual execution of the Revised Agreement and its own tender to them of $50 and a proposed lease amendment are sufficient to bind the Trust and Staircase to a 30-year extension of the Lease. But Appellees argue that the Revised Agreement was not binding in this regard because, inter alia, it failed to contain any consideration for the extension of the Lease term and the parties lacked mutual assent as to the essential terms of any such extension. We agree.

To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate. A contract is unenforceable where there is no meeting of the minds between the parties regarding a material element thereof. And all essential elements, including the element of consideration, must be certain.

(Citations and punctuation omitted.) Graham v. HHC St. Simons, Inc., 322 Ga. App. 693, 695 (2) (746 SE2d 157) (2013). Moreover,

[a] provision for the renewal of a lease must specify the terms and conditions of the renewal with such definite terms and certainty that the court may determine what has been agreed on, and if it falls short of this requirement it is not enforceable. It must be certain and definite both as to the time the lease is to extend and the rent to be paid.

(Citation omitted.) Smith v. Huckeba, 232 Ga. App. 374, 375 (1)

(501 SE2d 877) (1998).

It is not necessary, however, that the renewal option specifically list these terms. It is sufficient if it provides a definite method for determining the amount of the rent and the duration of the renewal lease. The renewal provision is unenforceable only if these terms are not specified and no method is provided by which they can be determined.

(Citation omitted.) Asian Square Partners, L.P v. Cuong Quynh Ly, 238 Ga. App. 165, 166 (518 SE2d 166) (1999).

Although the Revised Agreement contains two forms of consideration, it is apparent from the face of that agreement that neither of these two payments was intended as consideration for the proposed 30-year extension of the Lease. The first consideration, the $50 payment, was in exchange for Weiner’s and Shulman’s agreement to enter into the Revised Agreement itself, as the agreement provides, “[f]or and in consideration of Fifty Dollars ($50.00) paid by Lessee to Lessor, the parties agree” to the terms listed in the Revised Agreement. STC’s subsequent tender of $50 to Weiner and Shulman following their execution of the Revised Agreement and before they signed any lease amendment indicates that STC’s intent in drafting that language was to provide consideration for the execution of the Revised Agreement alone. In any event, the payment was tendered to Weiner and Shulman, individually, and thus cannot be considered as consideration flowing to the Trust or to Staircase, which STC proffered as signatories to the Proposed Amendment. See generally Milk v. Total Pay and HR Solutions, Inc., 280 Ga. App. 449, 451-452 (634 SE2d 208) (2006) (member of a limited liability company is considered separate from the company); Soley v. Dodson, 256 Ga. App. 770, 772 (569 SE2d 870) (2002) (“a person’s individual and representative capacities may not be substantially identical”). And Tessel, the Trust’s other co-trustee, received no consideration.

The Revised Agreement also provides that STC would pay Weiner and Shulman $7,500 “for executing and delivering the [Revised] Agreement to [STC] hy no later than June 1, 2011, and executing and delivering the Lease Amendment to [STC] within ten (10) days of receipt of the executable document(s) (the ‘Expedite Fee’).” But as the Revised Agreement makes clear, this payment would be forfeited if Weiner and Shulman did not abide by the stated deadlines because “time [was] of the essence.” Thus, if Weiner and Shulman had executed the Proposed Amendment on the 11th day after receiving it, they would have forfeited the $7,500 payment. Accordingly, as the term “Expedite Fee” indicates, this payment was in consideration for completing the transaction in an expedited manner and was not intended as rent or any other payment in consideration for a 30-year extension of the Lease. And once again, this consideration was to be paid to Weiner and Shulman in their individual capacities, not to the Trust and Staircase. Accordingly, we find that the Revised Agreement contains no consideration flowing to the Trust and Staircase in exchange for extending the Lease for 30 years.

Turning next to an examination of the terms to which Weiner and Shulman agreed in executing the Revised Agreement, we note that the agreement provided that STC, Weiner and Shulman “will enter into an amendment to the Lease (‘Lease Amendment’) wherein the term of the Lease will be modified.” The agreement then stated that the lease will be amended “to provide six (6) additional five-year Renewal Terms, or a total of eight (8) remaining Renewal Terms with a final expiration date of June 26, 2052.” But the Revised Agreement does not address the rent to be paid during those extensions, nor does it provide a method for calculating this rent. Additionally, it fails to state that the Lease’s existing terms, rental or otherwise, would remain in effect following the proposed modification. Thus, pretermitting whether the signatures of Weiner and Shulman could bind the Trust and Staircase to the Revised Agreement, nothing in that agreement binds anyone to any rental amount and certainly not to the rental rate contained in the Lease, as amended, as indicated in the Proposed Amendment. Rather, the Revised Agreement is completely silent as to any rent or other consideration to be paid by STC for the six additional extensions of the Lease term.

Accordingly, even if the parties agreed in principle that the term of the lease would be modified, the Revised Agreement fails to reflect any agreement on the essential rental amount for any such lease modification. Thus, the Revised Agreement does not contain an enforceable agreement to extend the term of the Lease. AMB Property, L.P. v. MTS, Inc., 250 Ga. App. 513, 515 (551 SE2d 102) (2001) (pricing provision that is undisputably vague or indefinite is not ambiguous; it is unenforceable). “In this instance, the amount of rent to be paid was not agreed upon and was subject to future negotiations----The question is whether that proposal was enforceable, and under the law of Georgia, it is not.” Ins. Indus. Consultants, Inc. v. Essex Investments, Inc., 249 Ga. App. 837, 843 (2) (549 SE2d 788) (2001). See also Patellis v. 100 Galleria Parkway Assocs., 214 Ga. App. 154, 154-155 (1) (447 SE2d 113) (1994) (failure of rent renewal agreement to state the amount of rent or to provide a method for computing it renders agreement unenforceable for uncertainty); Jackson v. Easters, 190 Ga. App. 713, 715 (1) (379 SE2d 610) (1989) (“Unless all the terms and conditions are agreed on, and nothing is left to further negotiations, a contract to enter into a contract in the future is of no effect. An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.”) (citations and punctuation omitted).

Decided October 30, 2013

Reconsideration denied December 3, 2013.

Burr & Forman, Harry Z. Rippeon III, Jack G. Kowalski, for appellant.

Quirk & Quirk, Agnes K. Gibby, Brendan H. Parnell, for appellees.

2. Because we have found that the Revised Agreement is unenforceable, we need not reach STC’s argument with regard to whether the Appellees established that Weiner lacked unilateral authority to bind the Trust to its terms.

3. Similarly, given our holding in Division 1, we find no error in the trial court’s denial of STC’s motion for summary judgment in its entirety.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

       We note that Appellees represented below and also represent on appeal that all prior Lease amendments were signed by Staircase and by Weiner and Tessel as co-trustees on behalf of the Trust, but in support of this assertion, they cite only to the third amendment. However, the copies of the other amendments produced by Appellees in discovery appear to belie this representation.

       The recitals to the third amendment reference a second amendment to the Lease dated August 21, 2001.

       Crown Castle and STC generally will be referred to jointly herein as “STC.’

         The letter actually reads “on timely and insufficient in amounts,” but this appears to be a typographical error. (Emphasis supplied.)

       The trial court gave no basis for this decision, although in a December 12, 2012 e-mail, the trial judge’s law clerk stated that the trial court “has received the supplemental letter briefing in the case and is persuaded that the [Appellees] are correct.” That letter briefing specifically addressed a provision in the will establishing the Trust that requires the signatures of both co-trustees to bind the Trust. But our review of the issues on appeal is de novo, and “a summary judgment ruling that is right for any reason — particularly a ruling that involves construction of a contract — must be affirmed.” (Citations omitted.) Monitronics Intl., Inc. v. Veasley, 323 Ga. App. 126, 134 (2) (746 SE2d 793) (2013).

       Even if Weiner’s and Shulman’s counteroffer to the April 7, 2011 letter agreement could he considered a proposal for a one-time payment of $7,500 as consideration for extending the term, STC rejected that offer and instead counteroffered the $7,500 as an “Expedite Fee.”

       We are aware that under the terms of the Revised Agreement, Weiner and Shulman represented that they had the full authority to enter into the Revised Agreement, to perform all obligations thereunder, and to deliver all documents, including a Lease Amendment, required by the Agreement. But this provision does not alter the fact that the stated consideration flowed to them in their individual capacities, rather than to the Trust or Staircase, nor does it alter the fact that the Agreement provides no consideration for extending the Lease term.

       Even if we were to consider the Revised Agreement as ambiguous, any such ambiguity must be construed against STC as the agreement’s drafter. OCGA § 13-2-2. In any event, the record contains no parol evidence to fill in the rental term. Although Felder’s e-mail and letter correspondence indicate that STC was “only proposing to modify the length of time on the lease, and as such, the other provisions of the lease are not addressed in the letter,” Felder’s correspondence never specified that the existing rent amounts would remain in effect during the six lease extensions, nor did he specify another rent amount. And although Felder stated in his deposition that he believed the Revised Agreement contained all the necessary terms and that no further negotiations would ensue, he did not state that he ever discussed the rent amount for the modified extension period with Weiner or Shulman.


author: McMillian, Judge.

text:
    A12A0773.
    SPECTERA, INC. v. WILSON et al.
    (752 SE2d 448)
    Decided December 3, 2013.

      Balch & Bingham, Michael J. Bowers, Malissa A. Kaufold-Wggins, for appellant.

      Elliott, Blackburn, Barnes & Gooding, Walter G. Elliott II, for appellees.
   McMillian, Judge.

In Spectera, Inc. v. Wilson, 294 Ga. 23 (749 SE2d 704) (2013), the Supreme Court affirmed in part, reversed in part, and vacated in part this Court’s opinion in Spectera, Inc. v. Wilson, 317 Ga. App. 64 (730 SE2d 699) (2012). Therefore, our earlier judgment is vacated insofar as it was reversed or vacated, and the opinion of the Supreme Court is adopted in its stead. And the judgment of the trial court is affirmed in part and reversed in part for the reasons stated in the judgment of the Supreme Court.

Judgment affirmed in part and reversed in part.

Phipps, C. J., and Ellington, P. J., concur.


author: MCFADDEN, Judge.

text:
    A13A1103.
    CASAS-RODRIGUEZ v. COSMOPOLITAN ON LINDBERGH CONDOMINIUM ASSOCIATION, INC.
    (749 SE2d 371)
   MCFADDEN, Judge.

Luisa F. Casas-Rodriguez appeals the final order awarding damages to Cosmopolitan on Lindbergh Condominium Association, Inc. and allowing the association to foreclose its lien on her condominium unit. She argues that the trial court erred when it awarded the association attorney fees incurred before she filed a bankruptcy petition; that the association should have pursued relief in her bankruptcy proceeding, rather than waiting until the bankruptcy had ended; and that the trial court erred by denying her claim for attorney fees and punitive damages for the association’s alleged violation of the bankruptcy automatic stay. We conclude that the trial court correctly calculated the amount of the association’s lien to include pre-petition attorney fees; that the association was not required to seek relief in the bankruptcy proceeding; and that the Bankruptcy Code preempts Casas-Rodriguez’s claim for alleged violations of the automatic stay. We therefore affirm.

Casas-Rodriguez owned a unit in the Cosmopolitan on Lindbergh Condominiums. On July 23, 2010, she filed a Chapter 7 bankruptcy petition. On January 21, 2011, she was granted discharge. On May 31, 2011, the association filed the instant complaint, seeking a judgment against Casas-Rodriguez personally for condominium assessments, late fees, interest and attorney fees. It also sought to foreclose on its statutory lien. See OCGA § 44-3-109 (a) (creating liens in favor of condominium associations for sums lawfully assessed against units and unit owners). Casas-Rodriguez answered and filed a counterclaim, alleging, among other things, that the association violated the automatic stay of her bankruptcy.

The association moved for summary judgment, seeking judgment against Casas-Rodriguez personally for $13,049.35 in amounts incurred after the filing of her bankruptcy petition. It also sought to foreclose its lien, which it valued at $20,995.49. The trial court granted the association partial summary judgment, but ruled that it would conduct a hearing on damages. After conducting a hearing at which the association presented evidence, the trial court entered judgment for the association in the amount of $8,211.77 against Casas-Rodriguez. It ruled that the association could foreclose its lien, which the trial court valued at $15,342.36. Casas-Rodriguez then filed this appeal.

“We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.” Hall v. Town Creek Neighborhood Assn., 320 Ga. App. 897 (740 SE2d 816) (2013) (citation and punctuation omitted). “And on appeal from a bench trial, we apply a de novo standard of review to questions of law decided by the trial court.” Antonios v. Gwinnett Clinic, 294 Ga. App. 101, 102 (1) (668 SE2d 531) (2008).

1. The trial court did not err by including pre-petition attorney fees in its calculation of the amount of the association’s lien.

Casas-Rodriguez argues that the trial court erred when it awarded the association pre-petition attorney fees. The trial court’s judgment expressly awarded only post-bankruptcy attorney fees against CasasRodriguez personally. But its calculation of the amount of the statutory lien included pre-petition attorney fees. This was proper.

The bankruptcy discharge had no impact on the association’s right to enforce its lien. “[Bankruptcy discharge extinguishes only one mode of enforcing a claim — namely, an action against the debtor in personam — while leaving intact another — namely, an action against the debtor in rem.” Johnson v. Home State Bank, 501 U. S. 78, 84 (111 SCt 2150, 115 LE2d 66) (1991).

A discharge in bankruptcy “voids any judgment ... to the extent that such judgment is a determination of the personal liability of the debtor.” 11 U.S.C. § 524 (a) (1). However discharges in bankruptcy do not affect liability in rem. Thus, liens on property remain enforceable after discharge unless avoidable under the Bankruptcy Code[, which CasasRodriguez does not argue].

Holloway v. John Hancock Mut. Life Ins. Co., 81 F3d 1062, 1063, n. 1 (11th Cir. 1996) (punctuation omitted.) And the condominium documents expressly provide that “[a]ll assessments and charges, together with interest . . . late charges as determined by Board resolution, costs, and reasonable attorneys’ fees, shall be the personal obligation of each Owner and a lien upon each Unit until paid in full.” (Emphasis supplied.) They also provide that “the [association shall have an automatic lien against each [u]nit to secure payment of delinquent assessments as well as interest, late charges, and costs of collection (including attorneys’ fees and court costs).” Likewise, OCGA § 44-3-109 (b) (3) of the Georgia Condominium Act provides:

To the extent that the condominium instruments provide, the personal obligation of the unit owner and the lien for assessments shall... include ... [t]he costs of collection, including court costs, the expenses of sale, any expenses required for the protection and preservation of the unit, and reasonable attorney’s fees actually incurred^]

Consequently, under the condominium documents and the statute, the trial court did not err by including pre-petition attorney fees in calculating the amount of the lien, an obligation that was not discharged in bankruptcy.

2. The association was not required to pursue its claim in the bankruptcy proceeding.

Casas-Rodriguez argues that the association should have acted in the bankruptcy proceeding to foreclose its lien instead of waiting until after her discharge, in order to minimize the amount of assessments and attorney fees she had to pay. The only authority she cites, Roche v. Pep Boys, 361 BR 615 (N.D. Ga. 2005), does not stand for the proposition that a creditor must pursue its claim in the bankruptcy proceeding. Instead, that case concerned whether a creditor’s failure to dismiss a pre-petition bank garnishment wilfully violated the automatic stay. “The law of this state is well settled that a secured creditor is vested with an election of remedies and may, either consecutively or concurrently, pursue any number of consistent remedies to enforce the payment of a debt until it is satisfied.” Reese Developers, Inc. v. First State Bank, 306 Ga. App. 13, 14 (701 SE2d 505) (2010) (citation and punctuation omitted).

Decided September 30, 2013

Reconsideration denied December 4, 2013.

Cory P. Sims, for appellant.

Lueder, Larkin & Hunter, David C. Boy IV, for appellee.

3. Casas-Rodriguez’s claim for the alleged violation of the automatic bankruptcy stay.

Casas-Rodriguez argues that she is entitled to recover attorney fees and punitive damages due to the association’s wilful violation of the automatic bankruptcy stay. The trial court implicitly denied her counterclaim for such. See Loveless v. Conner, 254 Ga. 663, n. 2 (333 SE2d 586) (1985).

Pretermitting whether the association took any action in violation of the automatic stay, the bankruptcy code “preempts [CasasRodriguez’s] state law claims against [the association] for the actions they [allegedly] took in violation of [her] bankruptcy stay.” Smith v. Mitchell Constr. Co., 225 Ga. App. 383, 386 (2) (481 SE2d 558) (1997).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


author: ANDREWS, Presiding Judge.

text:
    A13A1097.
    LAPOLLA INDUSTRIES, INC. et al. v. HESS et al.
    (750 SE2d 467)
   ANDREWS, Presiding Judge.

This appeal arises from a claim made by Lapolla Industries, Inc. that a competing business, Premium Spray Products, Inc., and Maclean Hess (on behalf of Premium) hired, or were attempting to hire, five former employees of Lapolla in violation of noncompete covenants in employment agreements between Lapolla and the former employees. In response to Lapolla’s demand letter that Premium and Hess cease this activity with respect to the former employees, or face legal action for alleged tortious interference with the employment agreements, Premium and Hess filed a declaratory judgment action against Lapolla seeking a declaration that they were not tortiously interfering with Lapolla’s contractual relations with the former employees because the noncompete covenants in the agreements were void and unenforceable.

The trial court entered an order granting a motion by Premium and Hess for a partial final judgment on the pleadings as to Count 2 of the complaint (which sought a declaratory judgment as to the noncompete covenants), and pursuant to OCGA § 9-11-54 (b) the court entered a partial final judgment on Count 2. The court found that, because the pleadings showed that the noncompete covenants in Lapolla’s employment agreements with the former Lapolla employees were void and unenforceable as a matter of law, Premium and Hess were entitled to a declaration that any activities in violation of the noncompete covenants “are not tortiously interfering with and cannot tortiously interfere with Lapolla’s contractual relations with the former Lapolla employees.” The trial court denied a motion by Lapolla and Kramer to dismiss or stay the suit. Lapolla and Kramer appeal from these rulings, and for the following reasons, we affirm in part and reverse in part.

1. Lapolla and Kramer contend that, because Premium and Hess were not parties to the employment agreements between Lapolla and the former Lapolla employees, they had no standing to seek a declaratory judgment with respect to the noncompete covenants in the agreements.

A superior court is authorized under OCGA § 9-4-2 (a) and (b) to enter a declaratory judgment “to declare rights and other legal relations of any interested party’ petitioning for a declaration “in cases of actual controversy’ under subsection (a), and in “any civil case in which . . . the ends of justice require that the declaration should be made” under subsection (b). The declaratory judgment statute is liberally construed; applies where a legal judgment is sought that would control or direct future action; and requires under subsection (a) or (b) the presence in the declaratory action of a party with an interest in the controversy adverse to that of the petitioner. Famble v. State Farm Ins. Co., 204 Ga. App. 332, 333-334 (419 SE2d 143) (1992); Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 17 (413 SE2d 450) (1992).

We find under the circumstances of this case that the requirements for application of the declaratory judgment statute have been met. Similar circumstances were present in Enron Capital & Trade Resources Corp. v. Pokalsky, 227 Ga. App. 727 (490 SE2d 136) (1997), where an individual and his current employer were uncertain as to the legal right to continue their employment relationship in the future in light of restrictive covenants contained in an employment agreement between the individual and a former employer. Id. at 728-730. We found under those circumstances that the current employer and the individual were entitled to bring a declaratory judgment action under OCGA § 9-4-2 against the former employer seeking a declaration as to the legal effect of the covenants on the current employment relationship. Id. Similarly, in light of the non-compete covenants between Lapolla and the former Lapolla employees in the present case, Premium and Hess were uncertain as to their legal right to continue attempts to hire (or continue to employ) the former Lapolla employees. Under these circumstances, Premium and Hess had standing to bring a declaratory judgment action under OCGA § 9-4-2 against Lapolla to seek a declaration as to the legal effect of the noncompete covenants in the employment agreements. Enron, supra.

2. Lapolla contends that the trial court erred in granting a declaratory judgment on the pleadings as to Count 2 declaring as a matter of law that the noncompete covenants contained in the employment agreements between Lapolla and its former employees were void and unenforceable.

[A] motion for judgment on the pleadings is authorized where the undisputed facts that appear from the pleadings establish that the movant is entitled to judgment as a matter of law. All well-pleaded facts are to be accepted as true. However, the trial court is not required to adopt a party’s legal conclusions based on those facts.

Novare Group v. Sarif, 290 Ga. 186, 191 (718 SE2d 304) (2011) (citations omitted); OCGA § 9-11-12 (c). In others words, “[t]he granting of a motion for judgment on the pleadings under [OCGA § 9-11-12 (c)] is proper only where there is a complete failure to state a cause of action or defense.” Pressley v. Maxwell, 242 Ga. 360 (249 SE2d 49) (1978). In considering a motion for judgment on the pleadings, a trial court may consider exhibits attached to and incorporated into the pleadings, including exhibits attached to the complaint or the answer. Raysoni v. Payless Auto Deals, 323 Ga. App. 583, 586, n. 5 (753 SE2d 313) (2013); Shreve v. World Championship Wrestling, 216 Ga. App. 387, 388 (454 SE2d 555) (1995); OCGA § 9-11-10 (c).

In the present case, the complaint for declaratory judgment alleged that all five of the Lapolla former employees at issue had noncompete covenants in their employment agreements with Lapolla that were void and unenforceable under Georgia law. The complaint attached and incorporated a letter from Lapolla’s attorneys to Premium and Hess regarding the “Employment Agreements and Restrictive Covenants Contained Therein between Lapolla Industries, Inc. and Ted Medford, Troy Herring, Carl McKettrick, Vincent Majewski, and Moody Ozier.” The letter stated that attempts by Premium and Hess to hire any of the former employees (or actual employment of the former employees) violated noncompete covenants in their employment agreements with Lapolla; demanded that Premium and Hess cease any such activity; and stated:

The Non-Compete language for each employee is set forth as follows:
During the Employment Period and for a period of two (2) years after the termination of Employee’s employment with [Lapolla] for any reason (collectively the “Restriction Period”), the Employee shall not, either directly or indirectly, for himself or any third party, anywhere within North America: (a) engage in or have any interest in any activity that directly or indirectly competes with the business of [Lapolla] or any of its affiliates as conducted at any time during the Employment Period, including without limitation, accepting employment from or providing consulting services to any such competitor, owning any interest in or being a partner, shareholder or owner of any such competitor, (b) solicit, induce, recruit, or cause another person in the employ of [Lapolla] or its affiliates or who is a consultant or independent contractor for [Lapolla] or its affiliates to terminate his employment, engagement or other relationship with [Lapolla] or its affiliates, or (c) solicit or accept business from any individual or entity which shall have obtained the goods or services of, or purchased goods or services from, [Lapolla] or its affiliates during the two year period immediately prior to the end of the Employment Period or which otherwise competes with or engages in a business which is competitive with or similar to the business of [Lapolla] or any of its affiliates, (d) call on, solicit or accept any business from any of the actual or targeted prospective customers of [Lapolla] or its affiliates (the identity of and information concerning which constitute trade secrets and Confidential Information of [Lapolla]) on behalf of any person or entity in connection with any business competitive with the business of [Lapolla], nor shall the Employee make known the names and addresses of such customers or any information relating in any manner to [Lapolla’s] trade or business relationships with such customers, other than in connection with the performance of Employee’s duties under this Agreement.

In response to the complaint, Lapolla and Kramer filed an answer which admitted that the letter attached to the complaint was a true and correct copy of the letter sent by Lapolla. The answer also attached as an exhibit a copy of one of the five employment agreements at issue (Ozier’s agreement) which contained the exact “non-compete” covenants referred to in Lapolla’s letter as “the Non-Compete language for each employee.”

Lapolla and Kramer argue for the first time on appeal that the trial court erred by ruling on the motion for judgment on the pleadings because the court should have allowed discovery with respect to the employment agreements with the former employees. Lapolla contends for the first time on appeal that it “does not have a copy of the complete agreements and never had an opportunity to seek them in discovery.” According to Lapolla, it attached a copy of Ozier’s employment agreement to its answer merely as an example of an agreement containing the “non-compete” language contained in its letter to Premium and Hess, and was forced to “trust that the remaining agreements were identical.”

As stated above, the record shows to the contrary that Lapolla conceded in its answer that the letter it sent to Premium and Hess (attached to the complaint) set forth in “the Non-Compete language for each employee,” and Lapolla’s answer attached as an exhibit an employment agreement containing the same “non-compete” language set forth in the letter. Moreover, Lapolla’s subsequent motion to dismiss or stay the proceedings also conceded that the pleadings set forth the “non-compete” language contained in all the agreements. Lapolla’s motion states:

All of the facts are taken from Plaintiffs’ Complaint, documents attached to Plaintiffs’ Complaint, and the Agreements between Lapolla and its former employees referenced in Plaintiffs’ Complaint and attached to Defendants’Answer. This Court is permitted to refer to the Agreements because they are part of the pleadings in this case, and are central to Plaintiffs’ claims.

In the same motion, Lapolla again refers to the letter it sent to “Hess and Premium advising them that the Former Employees were acting in competition with Lapolla in violation of the Agreements.” Finally, Lapolla’s Brief on Appeal recognizes that

Lapolla entered into employment agreements (the “Agreements”) with its now-former employees, including Ted Med-ford, Troy Herring, Carl McKettrick, Vincent Majewski, and Moody Ozier (the “Former Employees”), all of which contained covenants not to compete (the “Restrictive Covenants”).

In support of this statement in its appellate brief that all five employment agreements contained the “non-compete” covenants, Lapolla’s brief cites in the record to the “non-compete” language contained in the employment agreement attached as an exhibit to its answer.

Nothing in the record shows that Lapolla or Kramer sought or was denied the opportunity for discovery with respect to Lapolla’s employment agreements with its former employees. Rather, the record shows that, in responding in the trial court to the motion for partial judgment on the pleadings, Lapolla conceded that the “non-compete” language set forth in the pleadings was the same in all five of its employment agreements with its former employees. “Issues never raised at trial will not be considered for the first time on appeal.” Amerireach.com v. Walker, 290 Ga. 261, 263 (719 SE2d 489) (2011) (citations and punctuation omitted). Lapolla and Kramer also contend for the first time on appeal “that discovery would likely have shown that at least some, if not all, of the restrictive covenants in question were ancillary to the sale of a business to Lapolla, which changes the analysis under Georgia law as to whether the restrictive covenants were valid.” Again, neither Lapolla nor Kramer made this contention or sought discovery on this issue in the trial court. A party cannot ignore an alleged injustice in the trial court, take the chance on a favorable ruling, and then complain for the first time on appeal. Alexandrov v. Alexandrov, 289 Ga. 126, 127 (709 SE2d 778) (2011). Lapolla and Kramer waived this contention. Id.

In ruling on the motion for judgment on the pleadings, the trial court properly considered the exhibits attached to the complaint and the answer as establishing the language set forth in the “non-compete” covenants contained in the employment agreements between Lapolla and its five former employees. The trial court also correctly ruled under applicable Georgia law that the restrictive covenant considered by the court was void and unenforceable on its face.

Because the pleadings show that the restrictive covenants at issue arise out of employment agreements, the trial court correctly applied “strict scrutiny’ in its consideration of restrictions on competition contained in the covenant. Gordon Document Products v. Service Technologies, 308 Ga. App. 445, 447 (708 SE2d 48) (2011); American Control Systems v. Boyce, 303 Ga. App. 664, 667 (694 SE2d 141) (2010). Whether the restrictions on competition contained in the “non-compete” covenants were reasonable, and therefore legal, was a question of law for the trial court. Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 139 (287 SE2d 546) (1982).

Although facts may be necessary “to show that a questionable restriction, though not void on its face, is, in fact, reasonable,” a covenant containing sufficiently indefinite restrictions “[can]not be saved by additional facts” and is “void on its face.” Koger Properties v. Adams-Cates Co., 247 Ga. 68, 69 (2) (274 SE2d 329) (1981); see also Uni-Worth Enterprises v. Wilson, 244 Ga. 636, 640-641 (261 SE2d 572) (1979) (affirming grant of interlocutory injunction when the enforceability of restrictive covenants “was a legal question which could be determined by looking solely to the language of the restrictive covenant”).

Global Link Logistics v. Briles, 296 Ga. App. 175, 177 (674 SE2d 52) (2009). Moreover, where strict scrutiny applies to a noncompete covenant in an employment agreement, Georgia does not use the “blue pencil” doctrine of severability — the rule is that the court will not sever or “blue pencil” an unenforceable noncompete covenant and enforce reasonable restrictions in other noncompete covenants, but will declare all the noncompete covenants unenforceable. Advance Technology Consultants v. Roadtrac, LLC, 250 Ga. App. 317, 320-321 (551 SE2d 735) (2001); Paramount Tax & Accounting v. H & R Block Eastern Enterprises, 299 Ga. App. 596, 602 (683 SE2d 141) (2009).

But the rule that unenforceable noncompete covenants will not be severed or “blue-penciled” does not apply equally to all types of covenants restricting competition. As to the five restrictive covenants set forth in the “non-compete” language at issue in the present case (see note 2, supra), the nonseverability rule applies to three of those covenants: the covenant restricting employment with a Lapolla competitor (subparagraph (a)), the covenant restricting solicitation of business from entities doing business with or competing with Lapolla (subparagraph (c)), and the covenant restricting solicitation of Lapolla customers (set forth in a portion of subparagraph (d)). Sunstates Refrigerated Svcs. v. Griffin, 215 Ga. App. 61-62 (449 SE2d 858) (1994). As to those three noncompete and nonsolicitation covenants, all are treated as noncompete covenants for purposes of the nonseverability rule — if any one is unenforceable, all three are unenforceable. Id.; Uni-Worth Enterprises, 244 Ga. at 638-640; Ward v. Process Control Corp., 247 Ga. 583-584 (277 SE2d 671) (1981); Roadtrac, 250 Ga. App. at 320. As to the remaining two covenants, which restrict solicitation and hiring of current Lapolla employees (subparagraph (b)) and restrict disclosure of Lapolla trade secrets and confidential information (set forth as part of subparagraph (d)), those covenants are analyzed separately. Sunstates, 215 Ga. App. at 61-62. In other words, the latter two covenants do not automatically fail under the nonseverability rule if any one of the other three fail. Id.; Wiley v. Royal Cup, 258 Ga. 357, 359-360 (370 SE2d 744) (1988); Lane Co. v. Taylor, 174 Ga. App. 356, 359 (330 SE2d 112) (1985).

In ruling on the motion for declaratory judgment on Count 2, the trial court considered the restrictive covenant set forth in subparagraph (a) of the “non-compete” language. The covenant set forth in subparagraph (a) provides that the former Lapolla employees shall not

engage in or have any interest in any activity that directly or indirectly competes with the business of [Lapolla] or any of its affiliates as conducted at any time during the Employment Period, including without limitation, accepting employment from or providing consulting services to any such competitor, owning any interest in or being a partner, shareholder or owner of any such competitor.

This language contains no reasonable limit on the kind, character, or scope of work restricted and effectively restricts the former employees from working for a Lapolla competitor in any capacity. A noncompete covenant is too broad and indefinite to be enforceable where it contains no limit on the work restricted and effectively prohibits an employee from working for a competitor in any capacity. McNease v. Nat. Motor Club of America, 238 Ga. 53, 56 (231 SE2d 58) (1976); Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 184(236 SE2d 265) (1977); Arnall Ins. Agency v. Arnall, 196 Ga. App. 414, 416-418 (396 SE2d 257) (1990); Russell Daniel Irrigation Co. v. Coram, 237 Ga. App. 758, 760 (516 SE2d 804) (1999). Moreover, the restriction on acting as a partner, shareholder, or owner of a competitor is overbroad and unenforceable because, by definition, it prohibited activities beyond the scope of those performed for Lapolla by its former employees. Wright v. Power Industry Consultants, 234 Ga. App. 833, 834-835 (508 SE2d 191) (1998), overruled on other grounds, Roadtrac, 250 Ga. App. at 321; Ceramic & Metal Coatings Corp. v. Hizer, 242 Ga. App. 391, 393-394 (529 SE2d 160) (2000).

Accordingly, the trial court correctly found that the pleadings show the restrictive covenant set forth in subparagraph (a) was void on its face and unenforceable as a matter of law. Under the nonseverability rule, the trial court also correctly found that the restrictive covenant set forth in subparagraph (c), and the covenant restricting solicitation of Lapolla customers (as set forth in a portion of subparagraph (d)) are also unenforceable as a matter of law. The trial court did not separately consider the enforceability of the two restrictive covenants set forth in subparagraph (b), and in the portion of sub-paragraph (d) dealing with restrictions on disclosure of Lapolla trade secrets and confidential information. As set forth above, these two restrictive covenants do not automatically fail under the nonseverability rule, so the trial court erred by applying the nonseverability rule to find that these covenants were unenforceable as a matter of law. It follows that the trial court’s declaratory judgment order, and partial final judgment on the pleadings, on Count 2 of the complaint is affirmed in part (to the extent it declared that no tortious interference can be alleged for a violation of the three restrictive covenants it correctly found to be nonseverable and unenforceable), and reversed in part (to the extent it erroneously applied the nonseverability rule and declared that no tortious interference can be alleged for a violation of the remaining two restrictive covenants).

3. Lapolla and Kramer contend that the trial court erred by refusing to grant their motion to dismiss the action on the basis that the employment agreements contain forum selection clauses requiring that “venue for any action brought hereunder shall be exclusively in Harris County, Texas.”

The employment agreements also contain choice of law clauses which provide that they “shall be governed by and construed in accordance with the laws of the state of Texas.” Accordingly, if enforced together, the forum selection and choice of law clauses in the employment agreements would require that the present action be brought before a Texas court applying Texas law. The record shows that Premium is a Georgia corporation with its principal place of business in Georgia, and that Hess is a Georgia resident. Lapolla is a Delaware corporation with its principal place of business in Texas, and Kramer is a resident of Texas. The trial court denied the motion to dismiss and refused to enforce the forum selection and choice of law clauses on the basis of Georgia public policy.

The enforceability of the forum selection clauses is a procedural issue which, under the rule of lex fori, requires application of the law of Georgia (where suit was filed), even though the employment agreements also contain choice of law clauses requiring application of Texas substantive law. Brinson v. Martin, 220 Ga. App. 638-639 (469 SE2d 537) (1996). A forum selection clause in a contract is prima facie valid and will be enforced unless the opposing party establishes a compelling reason that enforcement would be unreasonable under the circumstances. Iero v. Mohawk Finishing Products, 243 Ga. App. 670, 671 (534 SE2d 136) (2000). “[P]ublic policy may afford a compelling reason to avoid a forum-selection clause, at least to the extent that proceedings in the selected forum are likely to produce a result that offends a settled public policy of Georgia.” Carson v. Obor Holding Co., 318 Ga. App. 645, 648 (734 SE2d 477) (2012) (citation and punctuation omitted); Iero, 243 Ga. App. at 671. A similar rule applies to enforcement of the choice of law clauses in the agreements — “the law of the jurisdiction chosen by parties to a contract to govern their contractual rights will be enforced unless application of the chosen law would be contrary to the public policy or prejudicial to the interests of this state.” CS-Lakeview at Gwinnett v. Simon Property Group, 283 Ga. 426, 428 (659 SE2d 359) (2008).

As set forth in Division 2, supra, the lack of any limit on the scope of the restricted work rendered the noncompete covenant considered by the trial court unenforceable under Georgia law, and Georgia law rejecting application of the “blue pencil” rule of severability rendered that covenant and two additional restrictive covenants unenforceable. These rulings enforced Georgia public policy with regard to restrictive covenants in employment agreements under the Georgia law applicable to the agreements entered into prior to May 11, 2011. White v. Fletcher/Mayo/Assoc., 251 Ga. 203, 204 (303 SE2d 746) (1983); Hostetler v. Answerthink, Inc., 267 Ga. App. 325, 328 (599 SE2d 271) (2004); Bunker Hill Intl. v. Nationsbuilder Ins. Svcs., 309 Ga. App. 503, 508 (710 SE2d 662) (2011); Convergys Corp. v. Keener, 276 Ga. 808 (582 SE2d 84) (2003); Holton v. Physician Oncology Svcs., 292 Ga. 864, 870, n. 4 (742 SE2d 702) (2013).

In support of their contention that the trial court should refuse to enforce the forum selection and choice of law clauses, Premium and Hess made the necessary showing that a Texas court would likely apply Texas law to enforce the covenants in a manner contrary to applicable Georgia public policy. Carson, 318 Ga. App. at 653. Generally, contractual choice of law clauses are enforced in Texas if the chosen state has a substantial relationship with the parties and their transaction, and no countervailing public policy of the forum demands otherwise. SAVA Gumarska In Kemijska Indus. D. D. v. Advanced Polymer Sciences, 128 SW3d 304, 314(Tex. App. Dallas 2004); DeSantis v. Wackenhut Corp., 793 SW2d 670, 677-678 (Tex. 1990). In DeSantis, the Texas Supreme Court considered the enforceability of a Florida choice of law clause in a noncompete agreement between a Texas employee and a Florida employer. Id. at 675. The court found that Texas law controlling noncompete agreements expressed fundamental Texas public policy, and declined under the circumstances to enforce the choice of Florida law in contravention of Texas law. Id. at 681. Considering Texas’s relationship to the parties and the transaction in the present case, and that state’s expressed interest in enforcing its own public policy controlling noncompete agreements, it is likely that a Texas court would enforce the choice of law clauses in the employment agreements and apply Texas law. Moreover, the application of Texas law would enforce the covenants in a manner contrary to Georgia public policy. Although a Texas court would likely agree with applicable Georgia law that the noncompete covenant considered by the trial court lacked a reasonable limit on the scope of restricted work (Tex. Bus. & Com. Code Ann. § 15.50; Butler v. Arrow Mirror & Glass, 51 SW3d 787, 794 (Tex. App. Hous. 2001); Peat Marwick Main & Co. v. Haass, 818 SW2d 381, 386-388 (Tex. 1991)), Texas law would, nevertheless, require that the covenant be reformed (or blue-penciled) to eliminate the unreasonable restriction and make the covenant enforceable. Tex. Bus. & Com. Code Ann. § 15.51 (c); Butler, 51 SW3d at 794, 796. Because it is likely that a Texas court applying Texas law would enforce covenants in this case that are unenforceable under applicable Georgia law and public policy, the trial court did not err by refusing to enforce the forum selection and choice of law clauses and dismiss the complaint.

Decided November 15, 2013

Reconsideration denied December 5, 2013

Robbins, Ross, Alloy, Belinfante & Littlefield, Heather H. Sharp, for appellants.

Berman, Fink & Van Horn, Benjamin I. Fink, Collin L. Freer, Neal F. Weinrich, Kristin N. Zielmanski, for appellees.

Judgment affirmed in part and reversed in part.

Dillard, J., concurs. McMillian, J., concurs in Divisions 1 and 2, and concurs in judgment only as to Division 3.

       Although the trial court inadvertently referred to Count 1 of the complaint in the order and partial judgment, it is undisputed that the court actually ruled as to the noncompete covenants set forth in Count 2. In addition to the claim for a declaratory judgment brought by Premium and Hess against Lapolla related to the noncompete covenants (Count 2), the suit, as amended, includes separate claims for declaratory judgments brought by Hess against Lapolla seeking declarations that Hess (also a former Lapolla employee) was not violating nonsolicitation and nondisclosure covenants in his employment agreement with Lapolla because those covenants were also void and unenforceable (Counts 3 and 4). The suit also names as a defendant Douglas Kramer, the president and chief executive officer of Lapolla, and includes a count brought by Hess against Kramer alleging defamation (Count 1). This appeal concerns the trial court’s rulings on Count 2 on the noncompete covenants. The claims set forth in Counts 1, 3, and 4 of the complaint remain pending in the trial court.

       This language, referred to by the parties and the trial court as “non-compete” covenants, sets forth five covenants restricting activity by Lapolla’s former employees. Subparagraph (a) restricts engaging in competition with Lapolla; subparagraph (b) restricts solicitation of current Lapolla employees, consultants, or independent contractors; subparagraph (c) restricts solicitation of business from entities which purchase goods or services from Lapolla or which otherwise compete with or are similar to Lapolla; and a portion of subparagraph (d) restricts solicitation of Lapolla customers. The fifth covenant, which is also set forth as part of subparagraph (d), restricts disclosure of Lapolla’s trade secrets and confidential information. The above language setting forth these restrictive covenants is collectively referred to in this opinion as the “non-compete” language or covenants.

       By this claim, Lapolla contends for the first time on appeal that, if discovery showed that the employment agreements contained “non-compete” covenants that were ancillary to the sale of a business to Lapolla, the trial court would have applied a lower level of scrutiny than the “strict scrutiny” applied to covenants ancillary to employment contracts, and would have blue-penciled the covenants to sever over-broad or illegal provisions. See Jenkins v. Jenkins Irrigation, 244 Ga. 95 (259 SE2d 47) (1979).

       The 2011 act revising Georgia law related to restrictive covenants in contracts (OCGA § 13-8-50 etseq.) does not apply to contracts entered into before May 11,2011. Ga. L. 2011, p. 399, § 5; Holton v. Physician Oncology Svcs., 292 Ga. 864, 870, n. 4 (742 SE2d 702) (2013). Because it is undisputed that the employment agreements at issue were entered into prior to May 11, 2011, OCGA § 13-8-50 et seq. does not apply in this case. The trial court correctly applied Georgia law relating to restrictive covenants in employment contracts as it existed prior to the revisions in OCGA § 13-8-50 et seq.

       Lapolla makes no argument on appeal that these restrictive covenants are valid under Georgia law.