                               FIFTH DIVISION
                               DILLARD, P. J.,
                            REESE and BETHEL, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   February 1, 2017




In the Court of Appeals of Georgia
 A16A1573. OKLAHOMA GAMING VENTURES, INC. v. PCT
     HOLDINGS, LLC.

      BETHEL, Judge.

      Oklahoma 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.1

      “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.” Realty

Lenders, Inc. v. Levine, 286 Ga. App. 326, 326-27 (649 SE2d 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


      1
       PCT Holdings filed a motion to dismiss this appeal, arguing that it was
untimely under OCGA § 5-6-38. We disagree and deny that motion.

                                         2
Oklahoma Gaming. After acquiring the assets of Kodiak Gaming, PCT Holdings

brought suit against Oklahoma Gaming.2 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.

      The 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


      2
        We will refer to Kodiak Gaming Ventures as PCT Holdings for the remainder
of this opinion.

                                           3
PCT Holdings, ordering Oklahoma Gaming to remove PCT Holdings’ software from

its machines. This appeal followed.

      Oklahoma 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.

      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.


      “For 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 SE2d 747) (1984). Whether there

has been a mutual departure from the terms of a contract is a question for the fact-


                                          4
finder. See Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 11 (195 SE2d 417)

(1973); Pierre v. St. Benedict’s Episcopal Day School, 324 Ga. App. 283, 286 (1)

(750 SE2d 370) (2013); First Union Nat. Bank of Ga. v. Davies-Elliott, Inc., 215 Ga.

App. 498, 504 (2) (452 SE2d 132) (1994).

      The 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 SE2d 429) (1971).

      Judgment affirmed. Dillard, P. J., and Reese, J., concur.




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