OKLAHOMA GAMING VENTURES, INC.
PCT HOLDINGS, LLC.
DILLARD, P. J., REESE and BETHEL, JJ.
Gaming Ventures, Inc. appeals from the final judgment entered
against it following a bench trial. In its final judgment,
the trial court ordered Oklahoma Gaming to pay amounts
past-due and owing under contract and to remove PCT
Holdings' software from its gaming machines. The trial
court also found PCT Holdings' termination of that
contract proper. Oklahoma Gaming argues that the trial court
should have found that PCT Holdings waived the applicable
contractual payment provision through its conduct, and
therefore the trial court erred in finding PCT Holdings'
termination of the contract justified. We disagree and affirm
because under the evidence, the trial judge was authorized to
find that the requirements of a mutual disregard of the
contract were not present.
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." Realty Lenders,
Inc. v. Levine, 286 Ga.App. 326, 326-27 (649 S.E.2d 333)
(2007). So viewed, the trial record reflects that PCT
Holdings owned a specific type of gaming software, which had
originally belonged to its predecessor-in-interest, Kodiak
Gaming Ventures. Kodiak Gaming entered into agreements with
Oklahoma Gaming that permitted Oklahoma Gaming to use Kodiak
Gaming's slot machine software and to place machines
loaded with the software at various locations. Disputes
between Oklahoma Gaming and Kodiak Gaming eventually arose,
which led the two parties to sign a settlement and release
agreement in 2009. The parties later began feuding once more
- this time over payments and other alleged defaults -
culminating in Kodiak Gaming demanding full payment of
past-due amounts and instructing Oklahoma Gaming to stop
using its software. Several months later and after not
receiving the requested amounts due, Kodiak Gaming terminated
the agreements with Oklahoma Gaming. After acquiring the
assets of Kodiak Gaming, PCT Holdings brought suit against
Oklahoma Gaming. Oklahoma Gaming made a partial payment of
the amount due, and the claims brought by PCT Holdings were
eventually dismissed without prejudice, and then refiled, and
consolidated with the initial action. In the consolidated
action, PCT Holdings contends that Oklahoma Gaming breached
the contract between the parties, prompting PCT Holdings to
terminate the contract, and operated the machines for a
broader period of time than had initially been disclosed to
PCT Holdings so that additional revenue was due to PCT
Holdings. PCT Holdings further argued that to the extent
Oklahoma Gaming operated the machines outside of the license
agreement, they were entitled to an injunction forcing
Oklahoma Gaming to stop using PCT Holdings' software.
trial court awarded $4, 910.55 to PCT Holdings for the
additional months Oklahoma Gaming had operated the software,
and found that although PCT Holdings accepted late payments
from Oklahoma Gaming, there was no mutual departure from the
terms of the contract specifying the time for payment.
Rather, PCT Holdings regularly requested timely payment. The
trial court also awarded injunctive relief to PCT Holdings,
ordering Oklahoma Gaming to remove PCT Holdings' software
from its machines. This appeal followed.
Gaming argues that the trial court should have found that the
parties mutually disregarded the payment provisions of the
applicable contract because the record is devoid of evidence
showing that PCT Holdings insisted on timely payment. In
support of its argument, Oklahoma Gaming relies on OCGA
§ 13-4-4 provides that
[w]here parties, in the course of the execution of a
contract, depart from its terms and pay or receive money
under such departure, before either can recover for failure
to pursue the letter of the agreement, reasonable notice must
be given to the other of intention to rely on the exact terms
of the agreement. The contract will be suspended by the
departure until such notice.
a departure from the terms of a contract to be sufficient to
require notice by one of the parties of his or her intention
to insist upon strict compliance with the contract, the
departure must be mutual and intended, such that the parties
have essentially entered into a new agreement concerning the
requirements of the original contract." Duncan v.
Lagunas, 253 Ga. 61, 62 (316 S.E.2d 747) (1984). Whether
there has been a mutual departure from the terms of a
contract is a question for the fact- finder. See
Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 11
(195 S.E.2d 417) (1973); Pierre v. St. Benedict's
Episcopal Day School, 324 Ga.App. 283, 286 (1) (750
S.E.2d 370) (2013); First Union Nat. Bank of Ga. v.
Davies-Elliott, Inc., 215 Ga.App. 498, 504 (2) (452
S.E.2d 132) (1994).
testimony before the trial court established that while PCT
Holdings sometimes accepted late payment, the company also
complained of their untimeliness and insisted on regular
payments. Thus, under the evidence, the trial judge was
authorized to find that the requirements of a mutual
disregard of the contract were not present. See Phoenix
Air Conditioning Co. v. Towne House Developers, Inc.,
124 Ga.App. 782, 785 (186 S.E.2d 429) (1971).
Dillard, P.J., and Reese, J., concur.