text:
    A97A0583.
    ENRON CAPITAL & TRADE RESOURCES CORPORATION v. POKALSKY et al.
    (490 SE2d 136)
   Johnson, Judge.

Enron Capital & Trade Resources Corporation is in the business of buying, selling, and supplying energy sources. Enron also trades energy commodities. Southern Electric International, Inc. is in the business of providing engineering and consulting services to power and other electric utility companies.

While employed by Enron in Texas, Joseph Pokalsky helped Enron develop procedures for trading energy commodities. Pokalsky eventually resigned his position at Enron and accepted employment with Southern in Georgia. On the day he resigned from Enron, he and Southern filed an action in Georgia seeking a declaratory judgment that the restrictive covenants contained in the employment agreements between Pokalsky and Enron were unenforceable. The agreements provided, in part, that the employee will not, at any time after employment, make any unauthorized disclosure of any confidential business information or trade secrets of Enron or its affiliates or make any use thereof; the employee will not, for one year after the termination of employment, engage in any business competitive with the business conducted by the employer, render any advice or services to, or otherwise assist any other person, association, or entity who is engaged in any business competitive with the business conducted by the employer, in any geographic area or market where Enron conducts any business, which may limit the employee’s ability to engage in certain businesses “anywhere in the world.” As part of the action, Pokalsky and Southern sought a temporary restraining order to enjoin Enron from seeking to enforce the restrictive covenants, from taking any other actions to preclude Pokalsky and Southern from engaging in an employment relationship, and from benefiting in any other fashion from the enforcement of the restrictive covenants. The court issued a temporary restraining order against Enron, prohibiting Enron from seeking to enforce the. non-competition obligations, acting to preclude Pokalsky and Southern from engaging in an employment relationship, and benefiting from the enforcement of those provisions.

Soon thereafter, Pokalsky and Southern moved for an interlocutory injunction to enjoin Enron from engaging in the same conduct until a final judgment was entered. At about the same time, Enron filed a lawsuit in Texas against Pokalsky and Southern seeking to enforce certain obligations contained in the same agreements.

A few days later, Pokalsky and Southern amended their motion for interlocutory injunction seeking to enjoin Enron from seeking to enforce the non-disclosure or fiduciary obligations contained in the agreements, taking any action to preclude Pokalsky and Southern from engaging in employment relationships, benefiting from the enforcement of the non-disclosure provisions, and seeking to preclude Pokalsky from using information contained in his mind. Pokalsky and Southern also filed a motion for contempt against Enron for filing the Texas action in violation of the temporary restraining order. In addition, Pokalsky and Southern filed a motion to temporarily restrain Enron from seeking to enforce the non-disclosure covenants. Finally, Pokalsky and Southern amended their motion for interlocutory injunction to enjoin Enron from pursuing, prosecuting, seeking discovery, or otherwise pursuing the Texas action.

In a detailed order, the court granted the motion for interlocutory injunction as amended, denied the motion for contempt, and ordered Enron to dismiss and cease pursuing the Texas action. Enron appeals.

1. Enron contends the trial court erred in entertaining the action because it does not present a justiciable case or controversy. Specifically, Enron argues that a justiciable case or controversy is presented for a declaratory judgment when a plaintiff needs judicial direction in order to decide what action to take in the future, not when he seeks confirmation of the propriety of action he has already taken. See Chattahoochee Bancorp v. Roberts, 203 Ga. App. 405, 406 (416 SE2d 875) (1992). Additionally, Enron maintains, there must be two interested parties asserting adverse claims. See Action for a Clean Environment v. State of Ga., 217 Ga. App. 384 (457 SE2d 273) (1995). Enron claims there were not, since Pokalsky had already taken the job and Pokalsky and Southern could only speculate as to what Enron’s position might be.

(a) Declaratory relief is available where a legal judgment is sought that would control or direct future action. Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 17 (413 SE2d 450) (1992). The declaratory judgment statute is construed liberally. Id. At the time the lawsuit in this case was filed, Pokalsky and Southern were uncertain whether their employment could legally continue into the future. This is not an improper use of the declaratory relief procedure. See generally Jackson & Coker, Inc. v. Hart, 261 Ga. 371, 372 (1), 373 (2) (405 SE2d 253) (1991); Beckman v. Cox Broadcasting Corp., 250 Ga. 127, 128 (296 SE2d 566) (1982).

(b) Moreover, while OCGA § 9-4-2 (a) is limited to “actual controversies,” OCGA § 9-4-2 (b) additionally authorizes superior courts to entertain declaratory actions where it appears that the ends of justice require that such a declaration be made. Courts merely require the presence in the declaratory action of a party with an interest in the controversy adverse to that of the petitioner, which Enron has had. See Famble v. State Farm Ins. Co., 204 Ga. App. 332, 333-334 (2) (419 SE2d 143) (1992).

2. Enron argues that the trial court erred in enjoining it from proceeding with its Texas action or initiating any other action anywhere else against Pokalsky because the two cases involve different provisions of the agreements and the “anywhere else” restriction amounted to an abuse of discretion. We disagree.

Both actions involve the same parties, facts and agreements. Although the non-disclosure and fiduciary duty issues were not part of the motion for interlocutory injunction as originally filed, those issues were added when the motion was amended. The trial court properly ordered the Texas action to be dismissed. See Tennessee Farmers &c. Ins. Co. v. Wheeler, 170 Ga. App. 380 (2), 381 (317 SE2d 269) (1984). In addition, the Texas action was properly ordered dismissed as its filing violated the court’s temporary restraining order.

The court’s order prohibiting Enron from filing an action “anywhere else” did not preclude Enron from bringing its claims as counterclaims in the Georgia action. Indeed, such claims would be compulsory counterclaims. See generally OCGA § 9-11-13; Oh v. Bell, 221 Ga. App. 276, 278 (470 SE2d 807) (1996).

3. The trial court did not err in finding that Georgia law, rather than Texas law, controls the enforceability of the covenants not to compete and not to disclose in the agreement. Contrary to Enron’s argument, the choice of Texas law provision contained in the agreements is not controlling. Although the parties may have chosen the law of a foreign jurisdiction to govern, a Georgia court will not enforce the contract if it is “particularly distasteful.” See generally Commercial Credit Plan v. Parker, 152 Ga. App. 409, 414 (1) (263 SE2d 220) (1979). The non-competition provisions in this case were “particularly distasteful” because they prohibited a former employee from competing anywhere in the world in any capacity. Such covenants have been held to be unenforceable in Georgia. See Nat. Settlement Assoc. &c. v. Creel, 256 Ga. 329, 332 (3) (c) (349 SE2d 177) (1986). Moreover, the non-competition restriction is unenforceable as geographically overbroad, since it prohibits Pokalsky from working in an area where Enron has done business in the past 12 months or anywhere it currently conducts business; “area” is not defined. See generally Koger Properties v. Adams-Cates Co., 247 Ga. 68 (1) (274 SE2d 329) (1981). Moreover, the non-disclosure covenant is unenforceable in Georgia because it contains no time limitation. See Stahl Headers v. MacDonald, 214 Ga. App. 323, 324 (447 SE2d 320) (1994). “The law of the jurisdiction chosen by parties . . . will not be applied by Georgia courts where application of the chosen law would contravene the policy of, or would be prejudicial to the interests of, this state. Covenants against disclosure, like covenants against competition, affect the interests of this state, namely the flow of information needed for competition among businesses, and hence their validity is determined by the public policy of this state.” (Citations omitted.) Nasco, Inc. v. Gimbert, 239 Ga. 675, 676 (2) (238 SE2d 368) (1977). We find no error.

4. The trial court did not enter final findings of law of fact or issue a permanent injunction, after only a motion and hearing for an interlocutory injunction. Instead, the order specifically states that the court is granting an interlocutory judgment. This enumeration is therefore without merit.

Decided July 14, 1997

Reconsideration denied July 29, 1997

Alston & Bird, G. Conley Ingram, James C. Grant, Alston D. Correll III, Powell, Goldstein, Frazer & Murphy, Elmer A. Simpson, Jr., V. Robert Denham, Jr., for appellant.

Bondurant, Mixson & Elmore, Emmet J. Bondurant, Dirk G. Christensen, Troutman Sanders, Stephen W. Riddell, Robert F. Webb, Harold G. Clarke, for appellees.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A97A0675.
    A97A0676.
    J & C POULTRY v. REYES-GUZMAN. CRIDER COMPANIES/CRIDER POULTRY et al. v. REYES-GUZMAN.
    (489 SE2d 853)
   McMurray, Presiding Judge.

The Crider Companies/Crider Poultry (“Crider”) and J & C Poultry Company (“J & C”) filed these appeals from a superior court order reversing the appellate division of the State Board of Workers’ Compensation’s finding that Juan Reyes-Guzman is ineligible for workers’ compensation benefits because his job as a poultry worker places him within OCGA § 34-9-2 (a)’s “farm laborers” exemption. The superior court concluded that this exemption does not apply because Guzman’s work — gathering, boxing and loading chickens — was more akin to trade and commerce than to the cultivation of chickens. We affirm because Guzman’s status as an employee of an independent contractor, not a chicken farmer, retained by the processor only to catch, box and transport chickens in the processor’s trucks, does not place him within OCGA § 34-9-2 (a)’s “farm laborers” exemption.

OCGA § 34-9-2 (a) provides that the Workers’ Compensation Act shall not apply to “farm laborers.” While many reasons have been given to explain this exemption, the common object seems to be exclusively for the protection of farmers. See Larson, Law of Workmen’s Compensation, 1C § 53.30. The term “farm laborers,” as used in OCGA § 34-9-2 (a), has therefore been given its ordinary signification. See Oft v. Sims, 142 Ga. App. 9 (235 SE2d 41). That is, farm labor includes all direct and incidental activities involving the cultivation of agricultural crops and the growing, feeding and management of “livestock . . . chickens, turkeys, swine, etc.” Ga. Power Co. v. Fletcher, 113 Ga. App. 559, 561 (2), 562 (2) (a) (148 SE2d 915). The question then, in the case sub judice, is whether Juan Reyes-Guzman (as a matter of law) was so employed.

“Sometimes intensive specialization, if carried too far, is enough to transform agriculture to commerce.” Larson, Law of Workmen’s Compensation, 1C § 53.34. And this is why “exclusivity of the employer’s operations may be used to determine whether a worker who performs a non-farming [or farming] function is [or is not] doing work incidental to farming. . . . Glen Oak’s, supra; Culpepper v. White, 52 Ga. App. 740 (1) (184 SE 349) (1936). The focus of the exemption is the status of the employee, not the total activities of the employer.” Lumber City Egg Marketers v. Piercy, 217 Ga. App. 584, 585 (458 SE2d 364). From this perspective, we observe, in the case sub judice, that Guzman was not working for a chicken farmer when he was injured. He was employed by a company which had nothing, to do with chicken growing, feeding or management. J & C specialized in capturing, boxing and loading animal freight for Crider, a chicken processor which purchased chickens from chicken farmers. Under these circumstances, we cannot say the superior court erred in finding that Guzman’s job was more akin to trade and commerce than to the cultivation of chickens, and concluding that Guzman was not, as a matter of law, a farm laborer within the meaning of OCGA § 34-9-2 (a). Saying otherwise would place the “farm laborers” exemption beyond the scope of its intended object, i.e., the economic welfare of farmers. See Larson, Law of Workmen’s Compensation, 1C § 53.30.

Since the controlling issue in the cases sub judice (whether compartmental sub-contracting of farming activities affects OCGA § 34-9-2 (a)’s “farm laborers” exemption) has not been addressed in this state, we cannot say Crider and J & C acted unreasonably in defending against Guzman’s claim for workers’ compensation benefits. Such borderline cases over the scope of the farm labor exemption have been the subject of controversy in Georgia as well as other jurisdictions. See Hiers & Potter, Ga. Workers’ Compensation — Law & Practice (2nd ed.), § 2-2.2; and Larson, Law of Workmen’s Compensation, 1C § 53.30 et seq. Accordingly, the trial court erred in assessing attorney fee damages against Crider and J & C pursuant to OCGA § 34-9-108 (b) (1). This part of the trial court’s judgment is hereby reversed.

Decided June 16, 1997

Reconsiderations denied July 29, 1997

Tillman, McTier, Coleman, Talley & Newbern, George T. Talley, for appellant (case no. A97A0675).

Brown & Livingston, Charles H. Brown, Jeffrey S. Akins, for appellants (case no. A97A0676).

Evans & Brantley, William V. Evans, for appellee.

Judgments affirmed in part and reversed in part.

Beasley and Smith, JJ, concur.

       Neither turpentine producers, Pridgen v. Murphy, 44 Ga. App. 147 (160 SE 701), nor truck farmers who are also engaged in “buying, selling, and hauling farm products and other articles of merchandise, and employing trucks and men to operate and care for them, ... as to this portion of [their] business, [are] exempt from the provisions of the [workers’] compensation act.” Ballard v. Butler, 45 Ga. App. 837, 838 (2) (166 SE 220). See also “Utica Mut. Ins. Co. v. Winters, 77 Ga. App. 550 (48 SE2d 918) (1948) (employer engaged in the automobile business, the gasoline business and farming); Free v. McEver, 79 Ga. App. 831 (54 SE2d 372) (1949) (employer engaged in meat packing business as well as agriculture).” (Emphasis omitted.) Glen Oak’s Turf v. Butler, 191 Ga. App. 840 (383 SE2d 203).


author: Johnson, Judge.

text:
    A97A1701.
    HENRY v. THE STATE.
    (494 SE2d 175)
   Johnson, Judge.

A jury found Witfield Matthew Henry guilty of trafficking in cocaine. He appeals from the judgment entered on the jury’s verdict, asserting the trial court erred in denying his motions for directed verdict and new trial because the evidence was insufficient to support a conviction.

“The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” (Citations and punctuation omitted.) Carter v. State, 222 Ga. App. 397 (1) (474 SE2d 228) (1996). At trial, a Gwinnett County investigator testified that with the help of a female confidential informant he arranged to purchase a half-kilogram of cocaine for $13,000. He and the informant traveled to the parking lot of a restaurant off Jimmy Carter Boulevard where they waited for approximately 20 minutes until they saw Clifton Davis walking toward the car. The informant got out of the car, hugged Davis and spoke with him for a few minutes until bringing him over to introduce him. Davis wanted to count the “paper” (money) and take it to another location where “the man” had “the thing” (cocaine). This plan was unacceptable to the investigator, who testified that he wanted the informant and Davis to go see the cocaine and, after the informant verified that it was good, come back and exchange the money for the drugs. Davis called someone on a cellular telephone and explained the arrangements, after which he and the informant walked off. About five minutes later, a white car drove into the parking lot and parked next to the investigator’s car. Davis, the informant, and Henry were in the car. As soon as the informant got out of the white car, the investigator signaled to the arrest team. The investigator walked over to the car and saw a bag containing cocaine on the floorboard of the car next to Henry’s feet.

Decided July 29, 1997

Hester & Hester, Prank B. Hester, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

Henry testified on his own behalf. He stated that Davis had come to his home and suggested they take a ride to Jimmy Carter Boulevard. He did not know why they were going there. They parked in a restaurant parking lot, and Davis got out of the car and left him sitting in the car. Davis returned with a woman, and they went to the trunk of the car. Davis had a bag in his hand and told Henry to drive across the street. They did not speak in the car. Henry further testified that he did not think that any of these activities were suspicious and has no idea how the bag containing cocaine got on the floorboard near his feet.

Although Henry’s account differs from that of the investigator, “[o]n appeal, the presumption of innocence no longer prevails, we view the evidence in the light most favorable to the verdict and we do not speculate which evidence the jury chose to believe or disbelieve. [Cit.]” Toney v. State, 225 Ga. App. 228 (483 SE2d 627) (1997). We do not agree with Henry’s argument that the failure of the state to introduce cellular phone billing records to prove that Davis called Henry to arrange the transaction was fatal to its case. The evidence presented at trial was sufficient to enable a rational trier of fact to find Henry guilty of trafficking in cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Lowe v. State, 223 Ga. App. 172 (477 SE2d 341) (1996); Cody v. State, 222 Ga. App. 468, 469-470 (1) (474 SE2d 669) (1996).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A0203.
    A97A0204.
    EFSTATHIOU v. REISS et al. EFSTATHIOU v. REISS et al.
    (490 SE2d 426)
   Johnson, Judge.

Rudiger Reiss, Dimitra Reiss, and Reiss Enterprises, Inc. sued Dimitra Reiss’ brother, Leo Efstathiou, and his wife, Ekaterini Efstathiou, for breach of contract, fraud and conversion. The suit alleged that the Efstathious, who live in the United States, contacted the Reisses, who live in Germany, asking them to send money so they could make certain investments on the Reisses’ behalf. The Reisses complied, and Mr. Efstathiou established Reiss Enterprises, Inc. and two bank accounts for handling the Reisses’ funds and transactions. The Reisses sent a total of $391,000. Unbeknownst to the Reisses, the Efstathious used the funds to purchase real property other than that agreed upon, contributed less of their own money to the investments than they represented they would, did not manage the property or pay property taxes as promised, did not disburse payments received from the investments as promised, and ultimately filed Chapter 11 bankruptcy on behalf of Reiss Enterprises.

The case was tried to a jury, which returned a verdict in favor of all three plaintiffs, although it awarded damages only to Reiss Enterprises. The verdict form indicated that Leo Efstathiou was liable to Reiss Enterprises in the following amounts: $71,000 on the fraud claim, $71,000 on the breach of contract claim, $71,000 on the conversion claim, and $20,000 in attorney fees. The form also indicated that Ekaterini Efstathiou was liable to Reiss Enterprises in the same amounts. The award also provided that the “Plaintiffs” (unspecified) were entitled to recover $95,000 in punitive damages. When questioned by the court as to the jury’s intent in returning the verdict in these particular amounts, the jurors stated that they intended to hold the Efstathious responsible for a total of $426,000 for fraud, contract and conversion damages, but divided the total into six parts in order to fill in the spaces on the verdict form. The trial court entered judgment on the verdict against the Efstathious, jointly and severally, for $426,000 on the conversion, fraud or contract claims, alternatively; $40,000 in attorney fees; and $95,000 in punitive damages. Mr. Efstathiou and Mrs. Efstathiou each filed motions for new trial and motions for j.n.o.v. The trial court granted Mrs. Efstathiou’s motion for j.n.o.v. on the breach of contract and conversion claims, but denied her motion for j.n.o.v. on the fraud claim. The trial court denied Mr. Efstathiou’s motion for j.n.o.v. and denied both parties’ motions for new trial. Mrs. Efstathiou appeals in Case No. A97A0203. Mr. Efstathiou appeals in Case No. A97A0204.

Case No. A97A0203

1. Mrs. Efstathiou contends the trial court erred in denying her motion for directed verdict on the issue of fraud because Reiss Enterprises, through its president and sole shareholder Dimitra Reiss (“Mrs. Reiss”), ratified the Efstathious’ acts, was not justified in relying on her representations, and was equitably estopped by the acts of Mrs. Reiss.

(a) The evidence in this case did not demand a finding that any reliance on Mrs. Efstathiou’s representations was not justified. Where a confidential relationship exists, one party is justified in relying upon representations made by the other party. See Capriulo v. Bankers Life Co., 178 Ga. App. 635, 637-638 (2) (344 SE2d 430) (1986); Sanders v. Looney, 247 Ga. 379, 381 (3) (276 SE2d 569) (1981). There was evidence that a confidential relationship existed between the Efstathious and the Reisses. In addition to being closely related to the Reisses by blood and marriage, the Efstathious lived in this country and represented to the Reisses, who lived in Germany, that Mr. Efstathiou had expertise in real estate and had been very successful in real estate and other investments here. In light of this evidence, the jury was authorized to find that the Efstathious were required to act with the utmost good faith and to deal fairly with the Reisses. See generally Sutton v. McMillan, 213 Ga. 90, 94-95 (3) (97 SE2d 139) (1957). There was also some evidence that the Reisses exercised due diligence. The Reisses met with the Efstathious regarding the investments and went to see the investment property when they visited the United States. Because the evidence did not demand a particular verdict on this issue, a directed verdict would not have been proper. Compare Simmons v. Fanello, 223 Ga. App. 213, 215 (2) (477 SE2d 334) (1996).

(b) The evidence did not demand a particular verdict on the issue of whether Reiss Enterprises ratified the Efstathious’ acts. For example, as soon as the Reisses learned that the Efstathious purchased property other than that agreed upon, they protested and told the Efstathious they wanted the property sold. The Reisses sent additional funds to repair the kitchen in one of the houses purchased because Mr. Efstathiou told them the house could not be sold without the repairs. And they sent money to pay delinquent taxes and mortgage payments so that the money already spent would not be lost due to foreclosure, though the property was eventually foreclosed upon. Under these circumstances, the evidence did not demand a finding that Reiss Enterprises ratified the unauthorized acts, and the trial court did not err in denying the motion for directed verdict. See generally Norfolk Southern Corp. v. Smith, 262 Ga. 80, 83-84 (2) (414 SE2d 485) (1992).

(c) The trial court did not err in submitting the issue of estoppel to the jury. Contrary to Mrs. Efstathiou’s contention, there is evidence that the Reisses complained of the Efstathious’ acts once they discovered them and did not acquiesce in or ratify the acts. See generally Dunaway v. Parker, 215 Ga. App. 841, 848-849 (3) (453 SE2d 43) (1994).

2. The trial court did not err in charging the jury regarding the duties of a real estate broker because, contrary to Mrs. Efstathiou’s claim, there was testimony that Mr. Efstathiou was a real estate broker. The charge was pertinent and adjusted to the facts of the case. See generally Moore v. Green, 129 Ga. App. 268, 269 (2) (199 SE2d 317) (1973).

3. It was not error to deny Mrs. Efstathiou’s motion for mistrial when counsel for the Reisses asked Mr. Efstathiou if his real estate license had been revoked. Counsel for the Efstathious asked the court for a mistrial or, in the alternative, for curative instructions. The court gave the jury curative instructions, the witness resumed testifying, and at the end of the day, counsel asked the court for further curative instructions regarding the revocation question. Counsel did not renew the motion for mistrial. Therefore, the issue is waived. See Hester Enterprises v. Narvais, 198 Ga. App. 580, 582 (2) (402 SE2d 333) (1991). We note that Mrs. Reiss’ attorney asked Mrs. Reiss earlier if Mrs. Efstathiou told her that Mr. Efstathiou’s real estate broker’s license was revoked, to which she replied negatively. No objection was made to this question. Therefore, we see no harm. See generally Frey v. Sinkola, Inc., 196 Ga. App. 106 (2) (395 SE2d 324) (1990).

4. Mrs. Efstathiou’s argument that the trial court erred in allowing testimony of settlement negotiations into evidence is without merit. Mrs. Reiss’ attorney explained that he asked Mrs. Reiss if she remembered coming to his office to try to settle the case only because he was attempting to bring her attention to that point in time. The trial court found the explanation plausible based on the witness’ earlier difficulty in responding to questions. The trial court has broad discretion concerning the examination of witnesses. See generally Stephen W. Brown Radiology &c. v. Gowers, 157 Ga. App. 770, 784 (11) (278 SE2d 653) (1981); OCGA § 24-9-63. We find no abuse of that discretion.

5. We disagree with Mrs. Efstathiou’s contention that the evidence does not support the amount of the verdict. There was evidence that the Reisses invested a total of $391,000, and that neither they nor Reiss Enterprises received the investment funds back or the $23,400 rent owed on the investment properties, or approximately $24,000 in accrued interest. The verdict was within the range of the evidence. See generally Reed v. Williams, 160 Ga. App. 254, 256 (3) (287 SE2d 47) (1981). Where the trial judge approves the jury’s verdict, the sole question for determination is whether there is any evidence to authorize it, with a view toward not upsetting it. We will not substitute our judgment based upon a cold record for that of enlightened jurors who heard the evidence and saw the witnesses. Cox v. Cantrell, 181 Ga. App. 722, 725 (7) (353 SE2d 582) (1987).

6. Mrs. Efstathiou is correct that the record does not support an award of attorney fees. “An attorney cannot recover for professional services without proof of their value. Generally, a party will proffer the opinion testimony of his present counsel as well as that of other attorneys in an effort to show what constitutes a reasonable attorney fee in light of the litigation history of the case. An award of attorney fees is unauthorized if appellee failed to prove the actual costs of the attorney and the reasonableness of those costs.” (Citations and punctuation omitted.) Fiat Auto U.S.A. v. Hollums, 185 Ga. App. 113, 116 (5) (363 SE2d 312) (1987). Here, no evidence was presented regarding the actual costs incurred by Reiss Enterprises or of the reasonableness of the costs. Because the award of attorney fees is not supported by sufficient evidence, the case is remanded to the trial court with direction that that portion of the judgment be stricken. See City of College Park v. Pichon, 217 Ga. App. 53, 56 (4) (456 SE2d 686) (1995).

Case No. A97A0204

7. In enumerations of error 1 through 6 and 8, Mr. Efstathiou raises the same arguments we found to be without merit above. They are likewise without merit in his appeal.

8. Similarly, Mr. Efstathiou’s contention that the evidence did not authorize an award of attorney fees is meritorious for the reasons discussed in Division 6, above. The case is remanded with direction that the fee award be stricken.

9. Mr. Efstathiou argues that the trial court erred in failing to instruct the jury on the method of computing damages under a conversion theory. Our review of the record does not reveal that he requested such a charge. In any event, he cannot now complain because he failed to object to the failure to give such a charge before the jury returned the verdict. See Barney v. Morris, 168 Ga. App. 426, 427 (1) (309 SE2d 420) (1983). Moreover, the court’s failure to include the charge, if error, was not so harmful as to require reversal. See generally Wisenbaker v. Warren, 196 Ga. App. 551, 555 (5) (396 SE2d 528) (1990).

10. There is no merit to Mr. Efstathiou’s contention that his motion for new trial should have been granted because Reiss Enterprises failed to elect its theory of recovery before the judgment was entered. Although the election of remedies should occur before judgment is rendered, there is no reversible error in failing to require the plaintiff to . do so where there is no risk of double recovery. See All Risk Ins. Agency v. Belk, 191 Ga. App. 576, 577 (1) (382 SE2d 361) (1989). Here, the judgment specifically provided that any recovery was in the alternative and that there could be but one recovery. There was no reversible error.

Decided July 14, 1997

Reconsideration denied July 30, 1997

Ekaterini Efstathiou, pro se.

Leo Efstathiou, pro se.

Furlong & Franco, Walter W. Furlong, Leonard L. Franco, for appellees.

11. Because there is evidence that the Reisses demanded return of their property, Mr. Efstathiou’s argument that the conversion claim was not supported by any evidence is without merit. A motion for new trial on this ground was not authorized. Compare Pritchett v. Wellington Plaza, 166 Ga. App. 430 (304 SE2d 743) (1983).

Judgments affirmed in part and reversed in part; cases remanded with direction.

Pope, P. J., and Blackburn, J., concur.


author: Andrews, Chief Judge.

text:
    A97A0207.
    SLAUGHTER v. THE STATE.
    (490 SE2d 399)
   Andrews, Chief Judge.

Douglas Slaughter appeals from his conviction of one count of arson in the first degree and one count of arson in the second degree. The conviction of one of his co-defendants, Helton, was affirmed in Helton v. State, 219 Ga. App. 826 (466 SE2d 690) (1996).

1. Slaughter first contends that the evidence was legally insufficient. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; moreover[,] an appellate court does not [weigh] the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) [(1991)]; King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) [(1994)].” Dolphus v. State, 218 Ga. App. 565 (462 SE2d 453) (1995).

So viewed arid as reflected in Helton, supra, Helton and Powell, who pled guilty and testified against Slaughter and Helton, set fire to a house rented by Virginia Hill around 1:00 a.m. on September 10, 1994. Hill’s car, which was parked outside the residence, also was set afire. Shortly prior to the time of the fire, Helton and Powell had been taken to a gas station where they bought gasoline and were then dropped off several blocks from the Hill residence with the plastic jug of gas.

A week prior to the fire, Slaughter had an altercation with Hill’s son Kelvin, in which Slaughter had been beaten up. Hill testified that three days prior to the fire, Slaughter, accompanied by Jones, who had witnessed the earlier fight, approached her in her class at Thomas Homes School and told her she “needed to tell them to let it go,” and to “just tell them.” When she asked who “they” were, Jones told Slaughter “man, you need to go talk to Papoose [Kelvin’s nickname] yourself.” Slaughter said he was going to “do what he had to do” and “take them one by one.” Although Hill tried to get Slaughter and Jones to follow her to her house, and talk to her son, they declined.

Powell testified that Helton needed money and told him that Slaughter would pay them $500 for burning up Hill’s car. Powell further testified that hé and Helton went to the Hill residence with the jug of gasoline and set the car on fire. An expert in fire investigation testified that the vehicle fire never went beyond the hood of the car and that the house fire was of separate origin. Additionally, there was a strong odor of gasoline around both the car and the front porch of the house. He further opined that, based on the rapidity of the fire and its large surface area, an accelerant was most likely used to advance the house fire. Helton, supra.

After the fire, Powell and Helton went to Slaughter’s house to receive payment. Helton went in while Powell sat on the front steps. Powell could hear Helton and Slaughter talking inside the open front door. Powell heard Slaughter say “for real you did it” and then laugh and say he would be “through there before two o’clock for payment.” Powell saw Slaughter put something in Helton’s hand and, as he and Helton walked away from Slaughter’s house, Helton showed Powell two pieces of cocaine and said, “he gave us this for right now.” Helton and Powell went to Helton’s house to await payment from Slaughter. When Slaughter did not come, Helton went to Slaughter’s house and, when he returned to his home, he gave Powell $100.

There were six people asleep in the house when the fire started.

Slaughter’s argument is that the testimony of his accomplice Powell was inadequately corroborated as required by OCGA § 24-4-8. That section provides that, although testimony of a single witness will generally establish a fact, when, in a felony case, “the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness. . . .”

“While such corroborating evidence must do more than merely ‘cast on the defendant a grave suspicion of (doubt),’ it may consist entirely of circumstantial evidence, or evidence of an accused’s conduct before and after the crime that infers he participated therein. The sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to a crime, even if it is circumstantial, it is legally sufficient.” Edmond v. State, 267 Ga. 285, 287 (2) (476 SE2d 731) (1996). See Hefner v. State, 224 Ga. App. 612, 613 (1) (481 SE2d 599) (1997); Moore v. State, 224 Ga. App. 797, 798 (1) (481 SE2d 892) (1997).

There was sufficient corroborating evidence of Slaughter’s participation, beginning with his assault by Kelvin and his talk with Hill and ending with his discussion with Helton in Powell’s hearing after the incident. Whitton v. State, 178 Ga. App. 862, 865 (1) (344 SE2d 703) (1986); Whitfield v. State, 159 Ga. App. 398, 400 (6) (283 SE2d 627) (1981).

Additionally, there was adequate proof of the conspiracy which allowed the admission of the two co-conspirators’ statements against Slaughter. Cromwell v. State, 218 Ga. App. 481, 482 (2) (462 SE2d 388) (1995).

2. Slaughter’s second enumeration is that the court failed to charge OCGA § 24-4-8, even though none was requested by Slaughter.

No such written request having been made below, there was no error. Campbell v. State, 207 Ga. App. 902, 905 (4) (429 SE2d 538) (1993); Jackson v. State, 205 Ga. App. 452, 453 (2) (422 SE2d 304) (1992). Even had one been requested, failure to give it was not error. See Ladson v. State, 248 Ga. 470, 476 (9) (285 SE2d 508) (1981); Smith v. State, 193 Ga. App. 208, 210 (5) (387 SE2d 419) (1989).

3. Finally, Slaughter contends that his trial counsel was ineffective.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990); see also Hayes v. State, 211 Ga. App. 801, 802 (1) (440 SE2d 539) (1994). A conviction will not be reversed on the basis of ineffective assistance of counsel unless “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Carter v. State, 176 Ga. App. 632, 633 (337 SE2d 413) (1985), quoting from Strickland v. Washington, 466 U. S. 668, 669 (104 SC 2052, 80 LE2d 674) (1984).

(a) One of the grounds alleged for ineffective assistance is trial counsel’s failure to request a charge under OCGA § 24-4-8. As discussed in Division 2, supra, however, even with such a request, it is not reversible error not to give it.

Decided July 8, 1997

Reconsideration denied July 30, 1997

Wolfe & Steel, Larry D. Wolfe, for appellant.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Assistant District Attorney, for appellee.

(b) Appellate counsel also contends that trial counsel’s withdrawal of his motion to sever Slaughter’s trial from co-defendant Helton’s trial and his failure to assert a Bruton violation regarding Powell’s testimony were errors rendering his representation ineffective.

Regarding the motion to sever, trial counsel testified at the motion for new trial hearing that he withdrew the motion to sever because he “knew we were maintaining a plea of not guilty and that . . . Helton, was maintaining a not guilty plea as well. I opted to go ahead from a strategic standpoint to go forward that way knowing that the State’s witness was going to be Mr. Powell.”

Such a tactical decision does not equate with ineffective assistance of counsel. Hammond v. State, 264 Ga. 879, 882 (4) (452 SE2d 745) (1995); Riser v. State, 222 Ga. App. 348, 349 (474 SE2d 632) (1996); Williams v. State, 218 Ga. App. 785, 788 (3) (463 SE2d 372) (1995).

(c) Bruton applies to situations where there is the “admission in a joint trial of a non-testifying co-defendant’s statement incriminating the defendant [thereby] violating] the defendant’s right to confront and cross-examine the co-defendant. There is no Bruton violation unless the non-testifying co-defendant’s statement, standing alone, clearly implicates the defendant. [Cit.]” (Emphasis supplied.) Griffeth v. State, 224 Ga. App. 462, 465 (3) (480 SE2d 889) (1997). Since Powell testified and was subject to cross-examination, there was no error. See Moore v. State, supra at 798 (2).

Judgment affirmed.

Beasley and Smith, JJ, concur.

        Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).


author: Pope, Presiding Judge.

text:
    A97A0229.
    SPEARS v. MACK & BERNSTEIN, P.C. et al.
    (490 SE2d 463)
   Pope, Presiding Judge.

Gilda F. Spears appeals from the trial court’s dismissal of the claims she asserted in a complaint against the law firm of Mack & Bernstein, P.C. (“M & B”) and one of its shareholders, Curtis Mack, following the entry of a default judgment in her favor in the case. Concluding that the trial court should not have dismissed Spears’ claims, we reverse.

Spears is an attorney who entered into an employment agreement with M&B. Her employment under the agreement was to extend from approximately April 15, 1989, until April 30, 1991. The agreement, however, provided that it could be terminated with cause by either party giving 90 days written notice to the other, or by M&B upon theft, dishonesty or serious neglect on Spears’ part. The agreement also provided for the prospect of Spears becoming a shareholder in the firm and stated that she would be considered for such status six months prior to expiration of the agreement. In the event the firm decided to grant shareholder status to Spears, she would be required to make a capital contribution, but if it was decided not to grant shareholder status to Spears, the agreement provided for its renewal for a mutually agreeable term or termination by either party.

After being terminated on or about April 17, 1991, allegedly without prior notice and for no apparent reason, and after allegedly having been told she would be made a shareholder six months before the agreement’s termination date, Spears filed her initial lawsuit against M&B and two of its shareholders, Curtis Mack and Ira Bernstein. In her complaint, she alleged that under the agreement she was entitled to be made an equity partner and to the compensation and division of the firm’s profits commensurate with such status. In the alternative, Spears claimed she was entitled to breach of contract damages from the firm and Mack and Bernstein individually. She also alleged that M&B and Mack and Bernstein had violated a duty of good faith and fair dealing they owed to Spears due to the relationship existing between them, and that she was entitled to damages in tort for breach of that duty, including punitive damages. Additionally, she claimed that Mack and Bernstein individually were liable to her for intentional infliction of emotional distress and interference with contract.

At trial, M&B and Mack and Bernstein moved for a directed verdict and subsequently obtained a judgment dismissing Spears’ claims against Mack and Bernstein individually for intentional infliction of emotional distress and interference with contract, as well as Spears’ claim that she was entitled to be made an equity partner in the firm. It is undisputed that the jury did not reach a verdict as to the remainder of Spears’ claims, and subsequently she dismissed those claims without prejudice.

Thereafter, pursuant to OCGA § 9-2-61 (a), Spears filed the present action against M&B and Mack and Bernstein individually, reasserting her claims for breach of contract and for tortious breach of an alleged duty 'of good faith and fair dealing. Spears’ complaint was properly served on M&B and Mack. She failed, however, to properly serve Bernstein, and for that reason it is undisputed that he is no longer involved in the case. The firm and Mack both failed to timely answer Spears’ refiled complaint, and the case went into default. When the default was not opened, the trial court entered a default judgment against M&B and Mack. In its order granting the default judgment, however, the trial court specifically noted that Spears would not be allowed to recover for the claims that were dismissed in the previous filing of her suit. And for purposes of clarification, Spears filed a motion dismissing any claims in the refiled action that might be construed as asserting a cause of action regarding the matters previously dismissed in her prior lawsuit. The case was then set for hearing before a jury on the issue of damages only.

Immediately prior to the damages hearing, the trial court allowed M&B and Mack to argue that all of Spears’ contract claims against them in the refiled suit were precluded by the trial court’s judgment in the previous case and by the motion to dismiss that Spears filed in the present action. M&B and Mack also were allowed to present argument that Spears’ claim for breach of good faith and fair dealing should be dismissed because Georgia did not recognize such a tort. Thereafter, the trial court dismissed all of Spears’ claims against M&B and Mack.'

1. Spears contends that the trial court committed reversible error in allowing such argument on oral motion from M&B and Mack in light of the default judgment entered in the case. We cannot agree. Oral motions of the type at issue here, made prior to a hearing or in this case a trial concerning damages only, are proper under OCGA § 9-11-7 (b) (1). And as M&B and Mack point out in their appellate brief, a “default operates to admit ‘only the well-pleaded allegations of the complaint and the fair inferences and conclusions of fact to be drawn therefrom.’ Stroud v. Elias, 247 Ga. 191, 194 (275 SE2d 46) (1981). Thus, [a defendant] is not precluded by operation of the default from showing that no claim exist[s] which [w]ould allow [a plaintiff] to recover from [the defendant]. Id. at 193[-194 (2)]; Williams v. Appliances, Inc., 91 Ga. App. 608 (86 SE2d 632) (1955); Thigpen v. Bituminous Cas. Corp., 67 Ga. App. 367, 368 (20 SE2d 213) (1942).” Weldon v. Williams, 170 Ga. App. 589, 591 (3) (317 SE2d 570) (1984). Accordingly, argument regarding whether Spears was entitled to any recovery was appropriately considered by the trial court prior to the damages only trial.

2. Acknowledging the above, we now turn to Spears’ contention that the trial court erred in dismissing all of her claims in the case pursuant to M&B and Mack’s oral motion. In doing so, we note that contrary to M&B and Mack’s assertion, neither the judgment filed in the prior lawsuit nor any dismissal filed by Spears in this case constitutes a bar to all of the breach of contract claims alleged in the current action. And upon review of the allegations in the refiled complaint, we conclude that the trial court should not have dismissed Spears’ breach of contract claim regarding M&B’s failure to comply with the 90-day notice requirement found in the employment agreement. The well-pleaded allegations of the refiled complaint clearly set forth that Spears was not terminated for any cause that would waive the 90-day notice requirement. And the allegations further set forth that she was terminated while the agreement was still in effect without any prior notice. As such, she was entitled to have the issue of any damages she may have suffered as a result of this breach submitted to a jury.

The well-pleaded allegations of the complaint, and a review of the agreement itself, also support Spears’ claim that M&B breached the agreement by considering Spears for shareholder status, as required by the agreement, and thereafter purportedly informing her six months before the contract term was to end that she would be made a shareholder without giving her any advance notice that in actuality it had been decided she would not be made a shareholder. Thus, Spears .also was entitled to have her claim for damages she may have suffered from this breach submitted to the jury.

We also agree with Spears’ contention that the trial court improperly dismissed her alleged tort claim against M&B and Mack for breaching an alleged duty of good faith and fair dealing. While it is true that in this State, “ ‘a tort action cannot be based on the breach of a contractual duty only, ... it can be based on conduct which, in addition to breaching a duty imposed by contract, also breaches a duty imposed by law. Commercial Bank &c. Co. v. Buford, 145 Ga. App. 213 (243 SE2d 637) (1978).’ Unified Svcs. v. Home Ins. Co., 218 Ga. App. 85, 87 (4) (460 SE2d 545) (1995).” Young v. W. S. Badcock Corp., 222 Ga. App. 218, 219 (1) (474 SE2d 87) (1996). “[Wjhere private duties arise . . . from relations created by the contract, express or implied, [one may] pursue a tort action for damages flowing from the exercise or failure to exercise that duty.” (Citations and punctuation omitted.) Unified Svcs. v. Home Ins. Co., 218 Ga. App. at 87 (4) (a).

In this case, the agreement specifically states that Spears was to be treated as some sort of partner in the firm during her employment. As such, we conclude that M&B and Mack had some fiduciary duty, as specifically alleged in Spears’ refiled complaint, to treat Spears fairly and in good faith. And the default judgment prevented them from claiming that they had complied with this duty. Consequently, plaintiff was entitled to submit her claim for damages in tort against M&B, including punitive damages, to a jury.

Decided July 16, 1997

Reconsideration denied July 30, 1997

Gilda F. Spears, pro se.

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, Dan B. Wingate, for appellees.

Judgment reversed.

Blackburn, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A0281, A97A0282.
    KENERLY v. BRYANT; and vice versa.
    (490 SE2d 454)
   Pope, Presiding Judge.

Plaintiff Daniel B. Kenerly, who is a real estate broker, and defendant William T. Bryant, who is a real estate developer, were involved in numerous real estate transactions in the Atlanta area from late 1960 until the mid-1970s. As a result of a number of these transactions, Bryant signed at least 12 promissory notes payable to Kenerly. Some of these notes were signed by Bryant individually, and other notes were signed jointly with other individuals.

After not transacting any business with each other for a number of years, in 1985 Kenerly and Bryant began to engage in real estate transactions under the name of “K” Properties. The transactions involving “K” Properties centered around the assemblage of real estate in the area of the proposed Ronald Reagan Parkway in Gwinnett County, Georgia, in the hopes of later making a profit from the sale of such real estate. “K” Properties’ hopes, however, did not come to fruition due to problems, including a sewer moratorium in the area.

It is undisputed that Bryant was the owner of an individual tract of property near the proposed Ronald Reagan Parkway prior to the formation of “K” Properties. After Gwinnett County purchased a portion of that property for approximately $329,000, Kenerly claimed that he was entitled to 50 percent of the proceeds Bryant received under an oral agreement existing between the parties. When Kenerly and Bryant were unable to reach an agreement regarding this matter, Kenerly filed suit against Bryant claiming entitlement to his portion of the proceeds and asking that an equitable trust be set up regarding his alleged interest in the remainder of the tract of land. In his complaint, Kenerly also demanded payment on nine promissory notes. Later he amended his complaint so as to demand payment on 12 notes.

Bryant answered the complaint denying liability, and the case was eventually tried before a judge without a jury. At the conclusion of the trial, the trial court determined that no oral agreement existed between Kenerly and Bryant that would entitle Kenerly to part of the remaining land Bryant owned prior to the formation of “K” Properties, or to any portion of the proceeds Bryant had received from the sale of part of the land. As to the promissory notes, the trial court determined that collection on the earliest of the 12 notes was barred by the applicable statute of limitation. The trial court also determined that two of the other notes had been paid by Bryant, but that the remaining nine notes had not, thus entitling Kenerly to payment on those nine notes. The trial court further concluded, however, that the doctrine of laches barred Kenerly from recovering any interest called for in the nine notes that accrued prior to his filing of the lawsuit.

Kenerly and Bryant both appeal the trial court’s judgment in the case. Kenerly’s appeal was docketed in this Court as Case No. A97A0281. Bryant’s appeal was docketed as Case No. A97A0282.

Case No. A97A0281

1. Kenerly’s contention that the trial court erred in its determination that two of the twelve promissory notes had been paid by Bryant is meritless. In cases like this, where the trial court sits as the trier of fact, its findings of fact will not be set aside unless they are clearly erroneous. OCGA § 9-11-52 (a). James F. Nelson, Jr. Family Limited Partnership v. Miller, 267 Ga. 466, 467 (479 SE2d 737) (1997). And the trial court’s factual findings and credibility determinations will be upheld on appeal if there is any evidence to support them. Id.; Dudley v. Snead, 250 Ga. 804, 805 (301 SE2d 480) (1983). In this case, the two notes in question were executed in favor of Kenerly with the payors listed on the notes as Kenerly, Bryant and another party. At trial, Bryant and this other party both testified to the effect that the notes had been paid or satisfied. And the only evidence Kenerly presented to rebut such testimony was his assertion that the notes had not been paid. Under such circumstances, we cannot say as a matter of law that the trial court’s determination was clearly erroneous.

2. Kenerly contends that the trial court erred in applying the doctrine of laches thereby limiting the amount of interest Kenerly could recover on the nine notes the trial court determined were enforceable against Bryant. We agree. Kenerly’s action to recover on the nine notes constitutes an action at law. “ ‘The equitable doctrine of laches is not applicable to [actions] at law. . . . (E)ven if the doctrine of laches could be invoked in [such actions], it could not be invoked during the period during which a statute of limitation would be applicable.’ Columbus Bank &c. Co. v. Dempsey, 120 Ga. App. 5, 6 (169 SE2d 349) (1969).” Virgil v. Kapplin, 187 Ga. App. 206, 208 (4) (369 SE2d 808) (1988). Pursuant to OCGA § 9-3-23, actions to enforce notes under seal of the type at issue here may be brought within 20 years after the right of action accrues. In this case, Kenerly’s action to collect on the nine notes in question was filed within the applicable period of limitation. And those notes all provide for interest from a set date at a set amount. Accordingly, we conclude the trial court erred in denying Kenerly’s recovery of any interest on the notes accruing prior to the filing of his complaint.

3. Kenerly’s contention that the trial court erred in determining that there was no enforceable oral contract between the parties which woiild entitle Kenerly to a portion of the proceeds from the sale of the land in Gwinnett County which Bryant owned prior to the formation of “K” Properties, or to a portion of the' remainder of the property itself, is without merit. Such an agreement is unenforceable at law because it violates the Statute of Frauds. OCGA § 13-5-30 (4). And even if it could be enforced in equity, the trial court specifically found that no oral agreement existed in fact because there was no meeting of the minds between Kenerly and Bryant. See OCGA § 13-3-2. In this case, we see no clear abuse of discretion as to the trial court’s finding of fact on this issue in light of Bryant’s testimony that no oral agreement existed and Kenerly’s own inability to provide specifics as to any alleged agreement. Absent any clear abuse of discretion, the trial court’s judgment that no oral agreement existed and that no equitable trust could be imposed must be affirmed. Miller, 267 Ga. at 467.

Case No. A97A0282

4. Because the trial court’s determination that Kenerly was entitled to recovery on the nine notes mentioned above was supported by the undisputed existence of the notes themselves, and by Kenerly’s testimony that the notes were for realty commissions that had never been paid, it cannot be said as a matter of law that there was no evidence to support the court’s determination. And contrary to Bryant’s contention, the trial court properly precluded Bryant from introducing parol evidence concerning his contention that the parties had agreed orally that the notes would not be enforced. Although the terminology “for value received” in the notes creates an ambiguity that would support the admission of parol evidence regarding the existence of consideration, see Building Assoc. v. Crider, 141 Ga. App. 825, 827 (3) (234 SE2d 666) (1977), in this case, the parol evidence Bryant sought to have admitted did not contest Kenerly’s claim that the notes were executed in lieu of Kenerly’s real estate commissions, but rather sought to demonstrate the existence of contemporaneous oral agreements to the effect that the notes would never be enforced. The use of parol evidence for such a purpose is improper. See C & S Trust Co. v. Johnson, 201 Ga. App. 464, 465 (411 SE2d 543) (1991). Accordingly, the trial court’s determination that Kenerly was entitled to recovery on the nine notes in question was proper. Miller, 267 Ga. at 467. Bryant’s attempt to demonstrate payment of the notes through the introduction of numerous checks written to Kenerly does not demand a different conclusion in light of the fact Bryant failed to specifically tie any such checks to the notes in question.

Decided July 16, 1997

Reconsideration denied July 30, 1997

Gray don W. Florence, Jr., for appellant.

Thompson & Sweeny, Virgil L. Thompson, Jr., for appellee.

5. In light of our holding in Division 2 of this opinion, we find no merit to Bryant’s assertion that the trial court erred in failing to apply the doctrine of laches to bar Kenerly’s recovery as to all the notes.

Judgment affirmed in part and reversed in part.

Johnson and Blackburn, JJ., concur.

       Kenerly does not contest the trial court’s determination that collection on the earliest of the promissory notes is barred by the statute of limitation. Therefore, the trial court’s judgment as to that note is not at issue here.


text:
    A97A0658.
    A97A0659.
    A97A0660.
    A97A0661.
    BROWN v. STARMED STAFFING, L.P. DeKALB MEDICAL CENTER, INC. v. BROWN. SIMMONS v. BROWN. ATLURI v. BROWN.
    (490 SE2d 503)
   McMurray, Presiding Judge.

These four appeals arose from the same medical malpractice action. About 8:30 p.m. on October 20, 1992, James R. Brown was admitted to the emergency room at DeKalb Medical Center, Inc. (“the hospital”). His tongue was swollen, and he had difficulty swallowing. Emergency room personnel medicated Mr. Brown and called his regular physician, Alan O. Feingold. The physician handling Dr. Feingold’s after-hour calls, Revati Atluri, arrived at the emergency room two and one-half to three hours later and determined that Mr. Brown had more than likely experienced an allergic reaction to his blood pressure medication. Dr. Atluri ordered intensive care and directed Mr. Brown’s “wife[, Willie W. Brown,] to [go home and] call [the nurses’ station] with his blood pressure medicines, names, and doses. . . .” Dr. Atluri then entered the term, “NPO,” on Mr. Brown’s hospital chart. To medical professionals, this notation means to give the patient nothing by mouth.

Mrs. Brown went home, retrieved all of her husband’s medicine, returned to the hospital and gave the medication to a nurse at the nurses’ station. Mrs. Brown then returned to the emergency .room waiting area. A few hours later, at about 4:00 a.m., Emergency Room Nurse Michael Simmons gave Mr. Brown the blood pressure medicine that Dr. Atluri thought may have caused Mr. Brown’s allergic reaction. According to Nurse Simmons, Dr. Atluri verbally directed him to give Mr. Brown his regular doses of blood pressure medicine.

Later that day (about 12:00 p.m. on October 21, 1992), Dr. Feingold arrived at the hospital and examined Mr. Brown. Dr. Feingold informed the Browns that Mr. Brown’s allergic reaction was probably caused by a blood pressure medication Mr. Brown was taking, “Zestril.” Mrs. Brown informed Dr. Feingold that the hospital had given Mr. Brown “Zestril” earlier that morning and asked if this dose would harm her husband. Dr. Feingold told Mrs. Brown, “he’ll be all right, see me in the morning.” Dr. Feingold then took Mr. Brown’s “Zestril,” scheduled him for an office visit the next morning and discharged Mr. Brown from the hospital. Mr. Brown never made it to Dr. Feingold’s office the néxt morning.

Mr. Brown experienced another allergic reaction at 5:00 in the morning on October 22, 1992. Mrs. Brown woke up when she heard her husband gagging for breath. Unable to revive Mr. Brown, Mrs. Brown called for emergency medical assistance. But it was too late. Mr. Brown had choked to death on. his grossly swollen tongue.

Willie W. Brown, individually and as administratrix of her husband’s estate, brought a medical malpractice action against Alan O. Feingold, M.D., Alan O. Feingold, M.D., PC., Revati Atluri, M.D., DeKalb Medical Center, Inc., Michael Simmons, R.N. and StarMed. Staffing, L.P. (“StarMed”), the medical personnel staffing service that contracted with the hospital for Nurse Simmons to work in the hospital’s emergency room. Mrs. Brown pertinently alleged the reckless administration of “Zestril” to Mr. Brown, while Dr. Atluri and Nurse Simmons were aware that “Zestril” may have caused Mr. Brown’s allergic reaction, was a proximate cause of her husband’s death. Mrs. Brown alleged Dr. Feingold was negligent in failing to immediately treat Mr. Brown for an allergic reaction after learning that his patient had recently ingested (at the hospital) the suspected allergen, “Zestril.” Mrs. Brown asserted that the hospital and StarMed are responsible for Nurse Simmons’ alleged negligence based on the doctrine of respondeat superior.

The trial court granted StarMed’s motion for summary judgment based on a finding that the doctrine of respondeat superior does not cover StarMed because Nurse Simmons was the hospital’s “borrowed servant” at the time of the nurse’s alleged negligence. The trial court denied the hospital’s motion for summary judgment and also denied Nurse Simmons’ and Dr. Atluri’s motions for partial summary judgment as to punitive damages. Mrs. Brown filed a direct appeal in Case No. A97A0658. The hospital filed a cross-appeal in Case No. A97A0659. Nurse Simmons filed a cross-appeal in Case No. A97A0660. And Dr. Atluri filed a cross-appeal in Case No. A97A0661. Held:

Case No. A97A0658

1. Mrs. Brown contends the trial court erred in granting StarMed’s motion for summary judgment, arguing that the three-prong test for establishing that Nurse Simmons was a “borrowed servant” was not met. “The definitive test for determining whether an employee is a borrowed servant’ was set forth in U. S. Fidelity &c. Co. v. Forrester, 230 Ga. 182, 183 (196 SE2d 133) (1973). The evidence must show that ‘(1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant.’ Id. In Six Flags Over Ga. v. Hill, 247 Ga. 375, 377-378 (1) (276 SE2d 572) (1981), the Supreme Court further refined this test by indicating that all three prongs of the test must focus on ‘the occasion when the injury occurred’ rather than the work relationship in general.” Stephens v. Oates, 189 Ga. App. 6, 7 (1) (374 SE2d 821). We are compelled to apply this narrow standard in the case sub judice.

Although StarMed paid Nurse Simmons’ wages, provided him with health insurance and workers’ compensation coverage, and required Nurse Simmons to abide by its rules, the hospital’s rules as well as all applicable professional standards, it is undisputed that the hospital had complete supervisory control over Nurse Simmons while he was watching over Mr. Brown and that the contract between StarMed and the hospital provided the hospital with exclusive right to discharge Nurse Simmons if his “performance does not meet the standards established for all professionals in the Hospital’s employ.” StarMed’s contract with the hospital provides only that the “[h]ospital will forward to [StarMed] documentation of [any such] termination.” Mrs. Brown, nonetheless, argues that Nurse Simmons was not the hospital’s “borrowed servant” when he gave Mr. Brown the allegedly fatal dose of “Zestril” because there is proof that Dr. Atluri — not the hospital — ordered Nurse Simmons to administer this medication. This assertion is without merit because the critical undisputed fact (with regard to StarMed’s vicarious liability) is that StarMed did not control Nurse Simmons’ conduct when he administered “Zestril” to Mr. Brown.

Under the law set forth by the Supreme Court of Georgia in Six Flags Over Ga. v. Hill, 247 Ga. 375, 377 (1), supra, the undisputed circumstances in the case sub judice reveal that Nurse Simmons was the hospital’s “borrowed servant” at the time of his alleged negligence. The trial court therefore did not err in granting StarMed’s motion for summary judgment.

Case No. A97A0659

2. Citing Hoffman v. Wells, 260 Ga. 588, 589 (397 SE2d 696), and Parker v. Hosp. Auth. of the City of Bainbridge &c., 214 Ga. App. 113, 114 (2) (446 SE2d 766), the hospital contends the trial court erred in denying its motion for summary judgment based on the “borrowed servant” doctrine because Nurse Simmons was Dr. Atluri’s “borrowed servant” at the time of the nurse’s alleged negligence. These assertions are without merit because, unlike the circumstances in Hoffman and Parker, there is evidence in the case sub judice that Nurse Simmons was not acting under the direction and control of Dr. Atluri when he gave Mr. Brown the allegedly fatal dose of “Zestril.” Apparently conceding this factual distinction, the hospital cites Moore v. Carrington, 155 Ga. App. 12 (1) (270 SE2d 222), alternatively urging that it cannot be liable for Nurse Simmons’ alleged negligence because he exercised professional judgment in deciding — on his own — to give Mr. Brown blood pressure medication.

In Moore v. Carrington, 155 Ga. App. 12, supra, this Court held that a “ ‘hospital is liable for the negligence of its nurses, orderlies and other employees, in the performance of mere administrative or clerical duties which, though constituting a part of the patient’s prescribed medical treatment do not require the application of specialized technique or the understanding of a skilled physician or surgeon and which duties are not performed under the direct supervision of the attending physician.’ Porter v. Patterson, 107 Ga. App. 64 (1) (a) (129 SE2d 70) (1962). See also Su v. Perkins, 133 Ga. App. 474 (211 SE2d 421) (1974); Miller v. Atkins, 142 Ga. App. 618 (236 SE2d 838) (1977).” Id. at 12-13 (1). There is no conclusive evidence in the case sub judice answering why Nurse Simmons gave Mr. Brown blood pressure medication at 4:10 a.m. on October 21, 1992. Indeed, the current state of facts in the case sub judice may authorize a jury’s finding that Nurse Simmons exercised no judgment at all when he gave Mr. Brown his daily dose of blood pressure medication. To this extent, there was no clear prohibition in Mr. Brown’s hospital chart not to give Mr. Brown his normal daily dose of blood pressure medicine. Dr. Atluri only noted the term, “NPO,” on this document. While it is undisputed that medical professionals consider this notation to mean “nothing by'mouth,” there is proof (in Dr. Atluri’s deposition) indicating that such a notation — without more specific reference — may be taken to refer only to food and drink, not medication. With this evidence, proof that Nurse Simmons administered Mr. Brown’s blood pressure medicine from containers bearing a physician’s order or prescription for daily doses of the medicine and evidence that Nurse Simmons carried out these orders during the early morning hours of his shift, we cannot say — as a matter of law — that Nurse Simmons was exercising professional judgment when he gave Mr. Brown the allegedly fatal dose of “Zestril.” Summary judgment is appropriate only when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Since genuine issues of material fact remain in the case sub judice as to why Nurse Simmons gave Mr. Brown his daily dose of blood pressure medication, the trial court did not err in denying the hospital’s motion for summary judgment.

The hospital, citing Vulcan Life &c. Ins. Co. v. United Banking Co., 118 Ga. App. 36, 37 (4) (162 SE2d 798), also argues that it cannot be liable under the doctrine of respondeat superior because Nurse Simmons was acting outside the scope of his authority when he gave Mr. Brown the regulated medication, “Zestril.” The hospital specifically reasons that Nurse Simmons could not have been acting within the scope of his authority when he gave Mr. Brown “Zestril” because hospital policy, as well as OCGA § 43-26-3 (6), prohibited any nurse from administering the medication without a physician’s order. We cannot accept such a position — as a matter of law — in the case sub judice because there is proof that Mr. Brown’s blood pressure medication was administered by Nurse Simmons from containers indicating a physician’s prescription or order for the medication. We therefore cannot discount the possibility that a jury may determine that Nurse Simmons was acting within hospital policy, as well as OCGA § 43-26-3 (6), when he gave “Zestril” to Mr. Brown. See Lau’s Corp. v. Haskins, 261 Ga. 491, supra.

3. Citing Matthews v. DeKalb County Hosp. Auth., 211 Ga. App. 858 (440 SE2d 743), the hospital contends that regardless of any negligence on its part, Dr. Feingold’s intervening negligence in prematurely discharging Mr. Brown from the hospital was an intervening act of negligence constituting the sole proximate cause of Mr. Brown’s death.

In Matthews, “Mrs. Matthews came to the DeKalb General emergency room complaining of a pain in her chest. The triage nurse recorded her history, obtained her vital signs and made an assessment. Matthews indicated that she was not in pain, and the triage nurse classified her condition as non-life threatening and told her that it would be a long wait. After four and a half hours of waiting, a social services representative told Matthews that the doctor would see her next. Matthews stated that she had waited too long and was leaving. The social services representative pleaded with Matthews to stay, but she left nonetheless, and died two days later. This court affirmed the superior court’s grant of DeKalb General’s motion for summary judgment, finding that Matthews’ voluntary termination of her relationship with the hospital severed any causal relationship with DeKalb General’s actions.” South Fulton Med. Center v. Poe, 224 Ga. App. 107, 108 (1), 109 (480 SE2d 40).

Unlike the circumstances in Matthews, there is evidence in the case sub judice of negligence by Nurse Simmons at the time Mr. Brown was under the hospital’s care. “The proximate cause of an injury may be two separate and distinct acts of negligence acting concurrently in causing the injury. [Cits.] While the causal connection between an act of negligence and a resulting injury is not broken by an intervening act which immediately causes the injury where this act can, in the exercise of due care, be foreseen by the original wrongdoer, the negligence in the intervening act may concur with the negligence of the original wrong-doer in causing the injury, and the perpetrators of both acts may be joint tortfeasors.” Allyn & Bacon Book Publishers v. Nicholson, 58 Ga. App. 729 (1) (199 SE 771).

In the case sub judice, there is evidence that the hospital’s emergency room staff — knowing that Mr. Brown had been administered “Zestril” a few hours earlier — summoned Dr. Atluri (and then Dr. Feingold) to the hospital to discharge Mr. Brown. Dr. Atluri testified that “they [the hospital personnel] could not find a bed in the ICU, and they wanted Dr. Atluri to come and evaluate him in the emergency room because he feels fine, evaluate for possible discharge.” Under these circumstances, we cannot say — as a matter of law — that Dr. Feingold’s act of discharging Mr. Brown from the hospital’s emergency room, with knowledge that Mr. Brown had ingested “Zestril” during his stay at the hospital, was an unforeseeable intervening cause of Mr. Brown’s death. “As we have previously noted [under such circumstances], proximate cause is generally an issue for the jury, and there may be more than one proximate cause of an injury. Church's Fried Chicken v. Lewis, 150 Ga. App. 154, 158 (1) (B) (256 SE2d 916) (1979)." Keith v. Beard, 219 Ga. App. 190, 192 (2), 193 (464 SE2d 633). See Medi-Clean Svcs. v. Hill, 144 Ga. App. 389, 390 (1), 391 (241 SE2d 290).

Decided July 16, 1997

Reconsideration denied July 30, 1997

Hart & McIntyre, George W. Hart, Bonnie M. Wharton, Thomas W. Thrash, Jr., for Brown.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Stephen R. Chance, for StarMed Staffing and Simmons.

Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., for DeKalb Medical Center, Inc.

The trial court did not err in denying the hospital’s motion for summary judgment.

Case Nos. A97A0660 and A97A0661

4. Dr. Atluri and Nurse Simmons contend punitive damages are not available for their alleged reckless administration of “Zestril” to Mr. Brown, arguing that punitive damages are authorized only when clear and convincing evidence shows that a defendant’s conduct exhibits “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b).

“[R]ecovery of punitive damages may be authorized where the circumstances of the tort show an entire want of care and an indifference to consequences. Wilful and intentional misconduct is not essential. Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173 (355 SE2d 104) (1987).” Hoffman v. Wells, 260 Ga. 588 (1), supra. In light of the grave factual dispute, in the case sub judice, as to whether Nurse Simmons, Dr. Atluri or both were responsible for Mr. Brown’s fatal dosé of “Zestril,” we cannot discount the possibility that punitive damages may be authorized in the case sub judice. Accordingly, we cannot say the trial court erred in denying Nurse Simmons’ and Dr. Atluri’s motions for partial summary judgment.

Judgments affirmed.

Beasley, J., concurs. Smith, J., concurs in the judgment only.

Gleaton, Scofield, Egan & Jones, Frederick N. Gleaton, Marla M. Eastwood, for Atluri.

       Although Dr. Atluri denies that she gave any such verbal order, she admitted during her deposition that — sometime after she treated Mr. Brown — she initialed a section in Mr. Brown’s hospital chart indicating that the patient had been given his regular doses of blood pressure medication at 4:10 a.m. on October 21, 1992.


author: Beasley, Judge.

text:
    A97A0665, A97A0666.
    SCREVEN v. DRS. GRUSKIN & LUCAS, P.C. et al.; and vice versa.
    (490 SE2d 422)
   Beasley, Judge.

In Case No. A97A0665, plaintiff Shirley Screven appeals the court’s grant of summary judgment to defendant Lucas and his professional corporation, Drs. Gruskin & Lucas, P.C. (“Doctors”), as to all of her medical malpractice claims. In Case No. A97A0666, Doctors and Lucas appeal the court’s amended order which denied summary judgment to them on one of Screven’s claims.

The following facts are undisputed. In 1985, oral surgeon Lucas implanted a Proplast-Teflon device in Screven’s jaw to correct a dysfunction of her temporomandibular joint (“TMJ”). She last consulted with Lucas in 1986. On February 29, 1993, Lucas sent a letter to Screven, dated December 31, 1992, advising her to see an oral surgeon. He enclosed a public health notice from the federal Food & Drug Administration (“FDA”) concerning fragmentation and degeneration problems with her type of TMJ device. The FDA notice was dated September 1991. Lucas explained the delay between the FDA notice and his letter to Screven as resulting from the difficulty in discerning which patients had received Proplast implants, his investigation to make certain further action was warranted, and his office’s administrative processing. There were earlier notices sent to oral surgeons from the FDA and the implant manufacturer, but Lucas deposed he had not seen them.

Screven filed suit against Lucas and Doctors on February 15, 1994. Lucas and Doctors moved for summary judgment based on the two-year statute of limitation and the five-year statute of repose found in OCGA § 9-3-71 (a) & (b). The court analyzed and ruled on Screven’s claims in three categories: claims related to the 1985 surgery were barred by the statute of repose; the claim for a failure to warn of the degenerative condition of the implant before the FDA issued warnings was barred by the statute of limitation, which was not tolled by fraud, see OCGA § 9-3-96; and the claim for failure to warn arising after the FDA’s warnings was barred by the statute of limitation, as evidence showed she had knowledge of the FDA warnings in May 1991. Based thereon, the court granted summary judgment to Lucas and Doctors on all grounds.

Nearly a month later, the court amended its order to readdress the claim for failure to warn after the FDA notices were issued. Originally, the court ruled that Screven’s testimony that she had no notice of the recall until she received Lucas’ letter was contradictory to other statements she made and construed that contradiction against her. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). In doing so, the court looked to testimony by a nurse at Kaiser Permanente to the effect that on May 31, 1991, Screven stated she knew of the TMJ recall, which countered Screven’s own testimony that she did not know of the recall. See Bridgestone Firestone v. Green, 198 Ga. App. 858, 860 (2) (403 SE2d 442) (1991) (physical precedent). Screven denies such a statement and also denies making any contact with Lucas’ office in June 1991 with questions about her implant, as Lucas had averred. The court, recognizing that this created a factual dispute, a conflict in the evidence, reinstated Screven’s claim for failure to notify her after Lucas received the FDA notice.

Lucas and Doctors applied for interlocutory review of the amended order, which we granted. See OCGA § 5-6-35 (b). We address their appeal first.

Case No. A97A0666

1. Screven .filed her notice of appeal the day before the court entered its amended order. “[TJhe filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.” Brown v. Wilson Chevrolet-Olds, 150 Ga. App. 525, 531 (2) (258 SE2d 139) (1979). Accord Anaya v. Brooks Auto Parts, 208 Ga. App. 491, 493 (1) (430 SE2d 825) (1993). See OCGA § 5-6-46 (a). The amended order is void.

Case No. A97A0665

2. Although the court addressed Screven’s claims in three categories, on appeal she argues only that the third category, the claim for failure to notify after Lucas received the FDA notice, should survive summary judgment.

OCGA § 9-3-71 (a) requires suit “within two years after the date on which an injury” occurs as a result of a negligent or wrongful act or omission. The limitation period “begins to run on the date on which an injury arising from an act of malpractice occurs and physically manifests itself, rather than when the plaintiff discovers the causal relationship between the injury and the defendant’s breach of duty. [Cit.]” Oxley v. Kilpatrick, 225 Ga. App. 838, 839-840 (486 SE2d 44) (1997).

Screven counts the limitation period as beginning the day she received Lucas’ letter concerning the TMJ in February 1993. Her February 15,1994 suit would then be timely filed. Lucas and Doctors contend the period began to run, at the latest, in September 1991 when Lucas received the most recent FDA notice about the implants and failed to immediately notify his patients. Lucas and Doctors argue that at that time, Screven was experiencing pain and related symptoms from her implant and, as her injuries were physically manifested then, she had until September 1993 to file suit, which she did not do.

Defendants’ position fails. Although Lucas and Doctors point to Screven’s testimony that, as early as 1986, she suffered the same symptoms she suffers now, there is no evidence these symptoms are the result of a degenerating Proplast implant. She suffered headaches both before and after her surgery, and she has since experienced eye problems, chronic infections, respiratory and sinus problems, nausea, fatigue, allergies, and pulmonary problems. Screven is also under treatment for epilepsy. Although defendants point to the fact Screven consulted other doctors and dentists, see Bryant v. Crider, 209 Ga. App. 623, 627 (3) (434 SE2d 161) (1993), she has no recollection of seeing an oral surgeon since her last examination by Lucas in 1986.

Moreover, the fact that Screven may have suffered the same symptoms prior to receiving Lucas’ letter is not dispositive of her failure to warn claim. Rather, it supports the conclusion that this injury did not manifest itself before the letter arrived. The injury here is any exacerbation caused by the delay in notifying her; the failure to warn claim does not relate to the original surgery or to any negligence in choosing the Proplast implant. Between 1991 and receiving Lucas’ letter in 1993, Screven “suffered no further symptoms,” Whitaker v. Zirkle, 188 Ga. App. 706, 707 (1) (374 SE2d 106) (1988), and therefore no manifestation of the injury of the degeneration of the implant. Lucas’ letter did not cause her injury; she had a degenerating implant all along but did not know it. Viewing the evidence in her favor, it was not until she received the letter that anything changed about the information she held. The evidence is in dispute whether she knew in 1991 of the recall.

The questions are: when did Screven’s injury occur, and when did she know of it? See Whitaker, supra at 707-708. Although she was theoretically injured in September 1991 when Lucas failed to warn her, she had no knowledge of that. Commencing the limitation period in September 1991, as Lucas and Doctors would do, would put upon Screven the responsibility to initiate suit based on an event that gives her no notice. When Lucas received the FDA notice, nothing changed in Screven’s ken; she felt nothing different from what she already felt. Before September 1991, she had a deteriorating implant. After September 1991, she continued to have a deteriorating implant, with no change in her symptoms. Simply noting that a condition existed before then, and that Screven was aware of that condition, does not address notice of injuries caused by the delay.

Decided July 11, 1997

Reconsideration denied July 30, 1997

Alexander J. Repasky, David M. Toolan, Michael A. Cole, for appellant. ,

Webb, Carlock, Copeland, Semler & Stair, Douglas W. Smith, David D. Cookson, for appellees.

“When an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered. [Cit.]” Whitaker, supra at 708 (1). That was February 1993, and Screven’s suit for failure to warn after Lucas received the FDA notice is timely. It was error to grant summary judgment on that claim. To the extent that Screven can show an injury arising from the delay in notifying her, such as that it is now inoperable, she presents an issue for a jury.

In Allen v. Belinfante, 217 Ga. App. 754, 756 (3) (458 SE2d 867) (1995), the rule of Zechmann v. Thigpen, 210 Ga. App. 726, 728 (3) (437 SE2d 475) (1993), cert. denied, 210 Ga. App. 903 and Whitaker v. Zirkle, supra at 708 (1), did not apply. That is to say, the injury did not occur “subsequent” to the dates of the medical treatment so as to begin the statute of limitation from the date the injury was discovered. Instead, in Allen the injury which was alleged occurred at the time of the failure to warn. Allen asserted that fraud tolled the statute, but there was no evidence of such. Screven asserts that the injury developed after the failure to warn; she does not depend on a tolling of the statute by fraud.

Judgments reversed.

McMurray, P. J., concurs. Smith, J., concurs in judgment only.

       The court ruled that Mr. Screven’s loss of consortium claim was not completely barred by the statute of limitation, see OCGA § 9-3-33, and he is not a party to Screven’s appeal.


text:
    A97A0801.
    ZIELINSKI v. CLOROX COMPANY et al.
    (490 SE2d 448)
   Pope, Presiding Judge.

Plaintiff Gary Zielinski sued his former employer, defendant Clorox Company, and one of its plant supervisors, defendant Castle-berry, for false light invasion of privacy after Castleberry made statements at an all-plant meeting allegedly implicating plaintiff in a criminal scheme to defraud Clorox. Plaintiff also sued Castleberry for tortious interference with plaintiff’s employment relationship after Castleberry subsequently recommended to Clorox’s upper management that plaintiff be fired. At trial, the court directed verdicts in favor of Clorox on the invasion of privacy claim and in favor of Castleberry on the tortious interference claim. It then submitted the invasion of privacy claim against Castleberry to the jury, which returned a defense verdict. Contending that the trial court committed reversible error, plaintiff appeals from both the directed verdicts and the jury’s verdict.

1. In his first enumeration, plaintiff argues that the trial court committed reversible error when it prevented plaintiff from introducing into evidence the transcript of a meeting between Castleberry, two other Clorox management employees involved in the investigation of the purported scheme to defraud the company, and Clorox’s corporate counsel, which occurred prior to the all-plant meeting. Specifically, plaintiff claims that the transcript should have been admitted because it contained statements made by Castleberry that impeached his testimony at trial that he had never stated to anyone that he thought plaintiff was implicated in the criminal scheme. We disagree.

It is undisputed that the statements at issue were made by Castleberry to management and corporate counsel in furtherance of Clorox’s internal investigation of the criminal activity and thus were made directly to those with a need to know. As such, due to Castle-berry’s position as a plant supervisor, the statements were made in the performance of a private duty Castleberry owed to Clorox and were privileged, unless made in bad faith. OCGA § 51-5-7 (2); Haezebrouck v. State Farm &c. Ins. Co., 216 Ga. App. 809, 813 (4) (455 SE2d 842) (1995). Upon review, we find no record evidence of bad faith on Castleberry’s part in making any statements concerning his beliefs or suspicions at this meeting.

We also find no merit to plaintiff’s contention that any privilege was waived when Clorox turned the transcript of Castleberry’s meeting with management and corporate counsel over to the district attorney’s office. The dissemination of such information by Clorox cannot be deemed to have waived a privilege belonging to Castle-berry. Moreover, in the absence of bad faith, Clorox’s dissemination of such information in furtherance of a criminal investigation also was privileged. OCGA § 51-5-7; Zielinski v. Clorox Co., 215 Ga. App. at 101 (4).

2. In his second enumeration, plaintiff contends that the trial court’s charge to the jury, wherein it directed the jury to return a defense verdict in favor of Castleberry regarding plaintiff’s false light claim if it found Castleberry’s statements at the all-plant meeting were not the proximate cause of plaintiff’s injuries, constituted a substantial error which was harmful as a matter of law. We agree. In essence, the above instruction limited the jury’s consideration of damages that might be awarded on plaintiff’s false light claim against Castleberry to those plaintiff could prove were actually caused by Castleberry’s statements, or in other words, special damages. See OCGA § 51-12-2 (b). As in cases of slander per se, however, cases involving claims of false light invasion of privacy, especially those based on the imputation of criminal activity to another, by their very nature involve injury to feelings, sensibilities or reputation and, as such, do not require any proof of special damages. OCGA § 51-5-4 (a) (1) and (b); Flanders v. Daley, 124 Ga. 714, 715-717 (52 SE 687) (1906); Cabaniss v. Hipsley, 114 Ga. App. 367, 378 (4) (151 SE2d 496) (1966). And in such cases, general damages, which are presumed in law, are recoverable. Id.; OCGA § 51-12-2 (a).

Because the abovementioned charge logically could lead a jury to believe that they could not award any damages to plaintiff on his false light claim against Castleberry unless special damages were proved, the charge was harmful as a matter of law. Flanders, 124 Ga. at 717. Accordingly, plaintiff is entitled to a new trial regarding his invasion of privacy claim against Castleberry.

3. In light of our holding in Division 2, and because the situation is unlikely to arise again upon retrial, we need not address plaintiff’s third enumeration of error, wherein he claims he is entitled to a new trial on his false light claim against Castleberry based on the trial court’s failure to adequately recharge the jury in response to a jury question involving that claim.

4. In his fourth enumeration, plaintiff contends the trial court committed reversible error in directing a verdict in favor of Clorox regarding plaintiff’s false light invasion of privacy claim. We disagree. A directed verdict is proper only when “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .” OCGA § 9-11-50 (a). Here, a review of the record evidence shows that the false light claim against Clorox was premised on slanderous utterances Castleberry allegedly made at the all-plant meeting as Clorox’s agent. A corporation, however, cannot be held liable for any slanderous utterances made by one of its agents, even if the agent was acting honestly for the benefit of the company and within the scope of his duties at the time the utterance was made, unless the plaintiff can prove that the corporation expressly ordered and directed the agent to say the very words in question. WMH, Inc. v. Thomas, 260 Ga. 654, 656 (398 SE2d 196) (1991); Church of God v. Shaw, 194 Ga. App. 694, 695 (391 SE2d 666) (1990). And in this case, the record shows that plaintiff failed to meet the abovementioned burden at trial. Thus, the directed verdict in favor of Clorox on the false light claim was proper.

5. In his last enumeration of error, plaintiff contends the trial court improperly granted a directed verdict to Castleberry on plaintiff’s tortious interference claim. We agree. The evidence presented at trial construed most favorably to plaintiff as the party opposing the motion for directed verdict showed that Castleberry did not have the authority to terminate plaintiff on his own and therefore was not immune from liability for tortious interference. Favors v. Alco Mfg. Co., 186 Ga. App. 480, 484 (4) (367 SE2d 328) (1988). Additionally, the evidence showed that even though he supposedly believed plaintiff was not involved in any criminal activity or scheme to defraud Clorox, Castleberry nonetheless went to his superiors and requested plaintiff’s termination after the illegal scheme was discovered. While he explained at trial that he did so for performance-based reasons, the jury could have discredited this explanation in light of plaintiff’s recent favorable performance evaluations and Castleberry’s own recent recommendation of plaintiff for promotion. The jury also could have concluded that Castleberry’s efforts to have plaintiff terminated were both improper and malicious because the jury could have concluded from the evidence that such efforts were motivated by Castle-berry’s desire to save his own job, as demonstrated by his statement to one witness that his job was on the line and that he was not going to take the fall for the criminal scheme.

Accordingly, based on the above, as well as plaintiff’s termination shortly after Castleberry’s meeting with his superiors at Clorox, there clearly was some evidence from which the jury could have found each of the requisite elements of plaintiff’s tortious interference claim against Castleberry. See Green v. Johnston Realty, 212 Ga. App. 656, 659 (4) (442 SE2d 843) (1994); Favors, 186 Ga. App. at 484 (4). Consequently, there were material issues to be resolved by the jury regarding that claim. Thus, the trial court’s directed verdict in favor of Castleberry as to plaintiff’s tortious interference with contract claim was improper, and plaintiff is entitled to a new trial concerning that claim.

Decided July 16, 1997

Reconsiderations denied July 30, 1997

Bondurant, Mixson & Elmore, M. Jerome Elmore, Frank M. Lowery IV, Vincent R. Lauria, Murray Z. Kahn, for appellant.

Arrington & Hollowell, Gary W. Diamond, Mark W. Wortham, Joni C. Hamilton, for appellees.

Judgment affirmed in part and reversed in part.

Johnson and Blackburn, JJ, concur.

       Plaintiff’s complaint also set forth several other claims against Clorox and Castle-berry. Such claims, however, were summarily dismissed by the trial court whose actions were affirmed by this Court in a previous appeal. Zielinski v. Clorox Co., 215 Ga. App. 97 (450 SE2d 222) (1994). Additionally, plaintiff set forth several claims against another Clorox employee, Lora Cecere, but these claims are not at issue in this appeal.