text:
    A91A1136.
    FOX v. RAVINIA CLUB, INC. et al.
    (414 SE2d 243)
   Cooper, Judge.

This appeal arises out of an action for intentional infliction of emotional distress and breach of contract brought by plaintiff against her former employer, Ravinia Club, Inc. (“Ravinia”), its parent company, Club Corporation of America, Inc. (“CCA”), and Charles Cow-art (“Cowart”), the manager of Ravinia. Plaintiff contends the trial court erred in granting summary judgment to defendants.

In August 1986, plaintiff began working for Ravinia as a membership secretary, and several weeks later Cowart became the manager of Ravinia. Plaintiff’s primary responsibility was to sell memberships to Ravinia, a new dining/health club which was scheduled to open in April 1987. Plaintiff contends that starting around the end of 1986, Cowart began inviting her to lunch and dinner, during which he would discuss intimate details about his personal life and his relationships with other women. At a corporate meeting in January 1987, an employee of CCA suggested to plaintiff that she might enjoy dating Cowart, and plaintiff stated that she had no interest in developing a personal relationship with Cowart. Following that meeting, Cowart became very cold and indifferent toward plaintiff, and on more than one occasion, he called her a “cold northern bitch” and said that she should “give us southern boys a chance.” Plaintiff contends that Cow-art began to treat her in a disrespectful manner by making sexually derogatory comments and by telling sexually explicit jokes in her presence. Plaintiff testified in her deposition that she complained on several occasions to Monica DeLaTorre, one of the corporate officers of CCA, but that no action was taken against Cowart. Soon after plaintiff complained, Cowart began telling her that she was not loyal to him, that no one liked her, that she had emotional problems and that she should seek professional help. In April 1987 shortly after the club opened, plaintiff became very emotional and began crying so badly that she could not remain at work. Shortly thereafter, at the insistence of Cowart and his superiors, plaintiff consulted with a psychologist, who she continued seeing through July 1987. Approximately two weeks before her termination, plaintiff and several other female membership secretaries made a joint complaint to Ms. De-LaTorre about Cowart’s behavior. On August 3, 1987, plaintiff was terminated from her employment at Ravinia, and on August 2, 1989, she filed the subject action for intentional infliction of emotional distress. Defendants filed a motion for summary judgment on the ground that plaintiff’s action was barred by the applicable two-year statute of limitation because all of the allegations of intentional infliction of emotional distress took place prior to plaintiff’s termination on August 3, 1987. While defendants’ motion for summary judgment was pending, plaintiff amended her complaint to allege that during her termination conference, Cowart spoke to her in a “hostile, intimidating and abusive manner” and that in a telephonic unemployment compensation hearing, Cowart gave false reasons for plaintiff’s termination and “laughed at [her] in a taunting fashion.” The trial court found that plaintiff suffered a cognizable injury in April 1987, when she began seeing a psychologist; therefore, the statute of limitation for plaintiff’s action expired in April 1989. The trial court also found that the allegations in plaintiff’s amended complaint were not sufficient to state a cause of action for intentional infliction of emotional distress.

Plaintiff contends that the trial court erred in failing to consider the totality of the circumstances and the continuing nature of the tort. Specifically, plaintiff argues that the trial court should not have viewed the allegations in the amended complaint as isolated events but should have considered them as continuing acts of intentional infliction of emotional distress. The trial court’s order reflects that the judge considered the cumulative nature of the defendants’ actions which began near the end of 1986. However, even taking into account the cumulative effect of defendants’ actions, we conclude that those actions culminated in April 1987, when plaintiff was required to seek psychological consultation for work-related stress. “ “The test to be applied in determining when the statute of limitations begins to run against an action sounding in tort is in whether the act causing the damage is in and of itself an invasion of some right of the plaintiff, and thus constitutes a legal injury and gives rise to a cause of action. If the act is of itself not unlawful in this sense, and a recovery is sought only on account of damage subsequently accruing from and consequent upon the act, the cause of action accrues and the statute begins to run only when the damage is sustained; but if the act causing such subsequent damage is of itself unlawful in the sense that it constitutes a legal injury to the plaintiff, and is thus a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, however slight the actual damage then may be.’” [Cits.]” Adams v. Emory Univ. Clinic, 179 Ga. App. 620, 622 (347 SE2d 670) (1986). Although plaintiff continued to work at Ravinia until August 3, 1987, she does not allege that any acts of intentional infliction of emotional harm occurred between April 1987 and August 3, 1987, other than those actions alleged in her amended complaint. Thus it appears that defendants’ alleged unlawful acts resulted in damage to plaintiff in April 1987 and at that time, plaintiff’s cause of action for intentional infliction of emotional distress accrued. See Hickey v. Askren, 198 Ga. App. 718 (1) (403 SE2d 225) (1991). More importantly, the record reflects that plaintiff did not suffer any damages after April 1987. Consequently, that is the last day on which plaintiff’s cause of action could have accrued. See Adams v. Emory Univ. Clinic, supra at 622. With respect to the acts alleged by plaintiff to have occurred after April 1987, we agree with the trial court that those acts were not sufficiently outrageous and egregious to constitute the tort of intentional infliction of emotional distress. Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 773 (324 SE2d 593) (1984). Accordingly, the trial court correctly found that plaintiff’s claims were barred by the applicable two-year statute of limitation.

Decided October 16, 1991

Reconsideration denied December 13, 1991

Whicker, Gandy & Rice, L. Spencer Gandy, Jr., for appellant.

Alston & Bird, Forrest W. Hunter, Arnall, Golden & Gregory, Charles L. Gregory, for appellees.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A1281.
    INTERNATIONAL MULTIFOODS CORPORATION v. NATIONAL EGG PRODUCTS.
    (414 SE2d 253)
   Andrews, Judge.

International Multifoods Corporation (“Multifoods”) appeals the granting of appellee’s cross-motion for summary judgment arising from the following facts. Multifoods manufactures baked good mixes and uses free-flowing egg yolk as a main ingredient in such mixes. National Egg Products, a division of Hudson Foods (“NEPCO”) manufactures and sells free-flowing egg yolks. Multifoods and NEPCO had a continuing relationship for the purchase of free-flowing egg yolk from October 5, 1977 until December 30, 1988.

In 1977 NEPCO provided a guarantee to Multifoods in which NEPCO guaranteed that none of the food sold to Multifoods would be adulterated at the time of delivery. Neither party disputes that such guarantee remained effective through December 1988.

In June 1988 Multifoods and NEPCO contracted for the sale of 75,000 pounds of egg yolk to be shipped at the direction of Multifoods between June and December 1988. In this regard, a confirmation of sale, the same document which the parties had used since March 1977, dated June 3, 1988 for the 75,000 pounds contained the following salmonella guarantee: “The Seller, National Egg Products guarantees that all products covered under this sales confirmation have been sampled by appropriate sampling techniques and have been tested by the recommended Food and Drug Administration testing methods and found to be salmonella negative by test. The buyer has ten days from the date of receipt of the products to test for salmonella and to accept it or notify the seller that all or any part of the shipment is rejected. If the seller has not received notice within ten days that any part of the shipment is rejected, absence of such notice shall be construed by both parties as final acceptance of the product. In any event, when any of the product covered by this confirmation has been used with any other ingredient, such use shall signify final acceptance of such product since the seller exerts no control over any other such ingredient.”

On November 14, 1988, the specific transaction underlying- this appeal occurred when Multifoods purchased 25,000 pounds of the egg yolk. On November 15, 1988 pre-shipment samples, which Multifoods required for the purpose of pre-manufacturing testing, were sent to Multifoods’ quality assurance supervisor. Accompanying the samples was a letter which stated: “This letter covers pre-shipment samples of Egg Yolk Solids Free Flow being forwarded under separate cover to you for Functional Properties and Viscosity evaluation only.” Multifoods was also sent a “Quality Assurance Certificate,” dated November 22, which analyzed and found no salmonella in the sample lot.

NEPCO concluded its testing of the entire lot on November 21, 1988, and a subsequent quality assurance certificate verifying that no salmonella was present in the product was signed on December 1, 1988. The product left NEPCO on the same date and was received by Multifoods on December 5. There is a discrepancy in the record as to whether Multifoods took samples for salmonella testing from the lot on this date or on December 9. In any case, on December 8, before any salmonella test results had returned, Multifoods began adding portions of the lot to its mixes. On December 15, tests were returned which indicated that the lot did contain salmonella. Multifoods advised NEPCO on December 16, 1988, that the lot was adulterated.

After receiving notice that the lot was adulterated, NEPCO requested that the remaining, unmixed portion of the lot be shipped back to it and Multifoods was given credit for the portion which was returned.

Multifoods filed a seven-count complaint for breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, negligence, negligent misrepresentation, breach of contract, and violation of the Georgia Food, Drug & Cosmetic Act. Multifoods claimed damages for the product itself and for the consequential damages it claimed to have incurred by mixing the contaminated egg yolk. NEPCO counterclaimed, alleging that Multifoods was responsible for the losses because of its failure to test prior to mixing, and claimed that Multifoods owed damages for the mixed portion of the product. The parties filed cross-motions for summary judgment. In granting NEPCO’s motion, the superior court stated that “[i]f the Court accepts Multifoods’ argument that NEPCO’s confirmation of sale only deals with Multifoods’ acceptance or rejection of NEPCO’s tender, then the question of whether or not Multifoods discovered the breach as soon as it should have becomes a dispositive issue under O.C.G.A. Sec. 11-2-607 (3) (a).” The trial court concluded that Multifoods did not discover the breach as soon as it should have. The trial court then concluded that the confirmation of sale put Multifoods on notice that once the product was combined with other ingredients, it was deemed acceptéd.

1. Although Multifoods’ sole enumeration of error is that the trial court erred in granting summary judgment, the company sets forth five arguments concerning the trial court’s alleged error in this regard, which we will address separately. In its first argument, Multifoods claims that the trial court overlooked NEPCO’s limitation on the uses to be made of pre-shipment samples when it found that Multifoods should have discovered the contamination from pre-shipment samples. This argument is without merit. It is clear from a reading of the letter accompanying the pre-shipment samples that the statement that such samples were being sent for functional property testing and viscosity use “only” was not a limitation on the uses to which Multifoods could put the samples, but was language used to protect NEPCO. From both evidence in the record and from the letter itself, it is apparent that the meaning of the letter was to distinguish the sample product from that which was sent for other uses.

2. In its second contention, Multifoods argues that the ten-day limitation within which to reject the product in the confirmation of sale constituted a material additional term which did not become part of the contract. This argument is also without merit. Pretermitting the question of whether the provision, which had been used by the parties for 11 years, was part of the contract, there is no indication that the superior court’s decision was based upon this provision. Although the superior court’s order mentioned the limitation, the court’s decision did not hinge on that provision and any alleged error would necessarily be harmless. See generally Merrill v. Eiberger, 198 Ga. App. 806 (403 SE2d 91) (1991).

3. In its third argument, Multifoods claims that the terms of the confirmation of sale do not limit or negate the express warranties given by NEPCO to Multifoods. Again Multifoods’ argument is without merit since it misconstrues the basis of the superior court’s ruling. The trial court’s conclusion regarding the warranty was based on the fact that Multifoods did not give notice within a reasonable time after it should have discovered the breach. The court reached this conclusion without regard to the confirmation of sale, to which it referred regarding acceptance. Accordingly, this contention is without merit.

4. Multifoods argues that its notice of breach to NEPCO was reasonable under OCGA § 11-2-607, or is, at least, a question of fact for the jury. At the outset we note that Multifoods admits that it accepted the product and despite the arguments raised here regarding revocation and rejection, these issues are not dispositive of whether notice of the breach of warranty was timely. See OCGA §§ 11-2-606; 11-2-607; 11-2-608. “OCGA § 11-2-714 applies where a buyer claims breach of contract regarding accepted goods.” Wolfes v. Terrell, 173 Ga. App. 835, 836 (2) (328 SE2d 569) (1985). “Absent an explicit contract term so providing, even explicit acceptance does not foreclose buyer’s suit for breach of warranty.” White & Summers, Uniform Commercial Code, (3d ed.), § 8-2, p. 392.

The narrow issue presented here is whether Multifoods gave reasonable notice under OCGA § 11-2-607 of the breach of warranty claim so as to permit its recovery. OCGA § 11-2-607 (3) (a) provides that when a tender has been accepted the buyer must, within a reasonable time after he discovers or should have discovered the breach, notify the seller of it or be barred from remedy. Here, the trial court concluded that because, as a matter of law, Multifoods did not exercise due diligence in discovering the breach, its notice to NEPCO was untimely.

We have been unable to find a Georgia case regarding the requirement of timely notice under OCGA § 11-2-607 (3) (a) in the context of a perishable good. See generally Hudson v. Gaines, 199 Ga. App. 70 (2) (403 SE2d 852) (1991); Ohoopee Prod. Credit Assn. v. Aspinwall, 183 Ga. App. 306 (358 SE2d 884) (1987); Economy Forms Corp. v. Kandy, 391 FSupp. 944, affirmed 511 F2d 1400 (N.D. Ga. 1974). Nevertheless, “[t]he requirement that notice be given within a reasonable time is important, especially when the alleged breach concerns perishables. The purpose of the rule, as stated in the comment to the UCC, is to defeat commercial bad faith. If the seller is notified of a breach within a reasonable time he has opportunity to ascertain for himself the nature and extent of the breach by taking advantage of UCC § 2-515 which gives either party upon reasonable notification to the other, the right to inspect, test and sample the goods ... for the purpose of ascertaining the facts and preserving evidence.” A. C. Carpenter, Inc. v. Boyer Potato Chips, 7 UCCRS 493, 495 (1969).

The question of reasonableness of notice is ordinarily a factual one, although summary adjudication is appropriate if the uncontroverted facts establish that a plaintiff is not entitled to recover. Griffith v. Stovall Tire &c., 174 Ga. App. 137, 139 (329 SE2d 234) (1985). Here we conclude that the trial court’s grant of summary judgment was proper because of the following undisputed facts. See OCGA § 11-2-204 (2). First, the warranty provided that the egg yolk would be free of salmonella at the time of delivery. Given the limited terms of the warranty and the perishable nature of the product being shipped, the corresponding time period for notice in this commercial context was necessarily brief. Without reaching questions regarding the binding nature of the ten-day time limitation in the confirmation of sale, the existence of this clause alone should have alerted Multifoods to the fact that only a short period was available within which to give notice. Further, Multifoods required pre-shipment samples of the yolk, and despite a previous policy of testing the ingredient, chose not to test the sample for salmonella. When the product shipment arrived, Multifoods again chose to forego testing it and mixed the product before learning if salmonella was present. Given all of these factors, the trial court’s conclusion that Multifoods’ notice to NEPCO was not, as a matter of law, within a reasonable time after it should have discovered the breach was proper. Compare Blommer Chocolate Co. v. Bongards Creameries, 635 FSupp. 919 (N.D. Ill. 1986), on rehearing 644 FSupp. 234 (1986).

Decided November 20, 1991

Reconsideration denied December 17, 1991

Robins, Kaplan, Miller & Ciresi, R. Dennis Withers, Lisa L. Heller, for appellant.

Strauss & Walker, John T. Strauss, Rebecca P. Dally, for appellee.

Multifoods’ argument that the trial court’s determination regarding due diligence had no bearing on the other counts of the complaint is not argued as an enumeration of error and will not be addressed.

5. Finally, Multifoods argues that Federal Food & Drug Administration regulations allow Multifoods to meet its duty to use only pure ingredients by purchasing ingredients under supplier’s guarantee or certificate. Multifoods cites no authority for the proposition that the federal requirement allows a manufacturer/buyer to maintain a breach of warranty claim in the instant factual situation, nor does the regulation itself support this contention. Therefore, this contention is without merit.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

       From the evidence presented below, it appears that the question of proximate cause in this case may be a factual one, although we make no determination here regarding this issue. In this regard see United States v. 1200 Cans Pasteurized Whole Eggs, 339 FSupp. 131 (N.D. Ga. 1972).


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A91A1372.
    CHAPMAN v. THE STATE.
    (414 SE2d 240)
   McMurray, Presiding Judge.

Defendant Chapman appeals his conviction of the offense of aggravated assault. Held:

1. Defendant’s first enumeration of error questions the sufficiency of the evidence to authorize his conviction. The evidence, viewed in the light most favorable to the verdict, shows that the victim’s wife was driving the victim home when a white van pulled up extremely close behind them. The van followed closely for a distance flashing its lights and sounding its horn. When the vehicle in which the victim was a passenger stopped for a red light, the van pulled alongside. Defendant cursed and threatened the victim, invited the victim to get out of his automobile, and pointed a handgun at the victim from a distance of only one foot. The victim testified that he was scared and thought the defendant was going to shoot him. The victim remained in his automobile and the defendant, after pulling on the handle of the victim’s automobile door, slammed the door of the van against the victim’s automobile five or six times. When the light changed, the white van again followed the victim’s automobile. The victim and his wife found a police officer at a nearby convenience store and reported the incident to the officer and pointed out the van. The officer followed the van and pulled it over. As defendant stepped from the van, he immediately volunteered that “they ran me off the road.” There was also evidence that the victim’s automobile was pulled alongside the van and that damage on the two vehicles was consistent with the victim’s account of the incident.

Defendant denied striking the victim’s vehicle or pointing a gun. No gun was found in defendant’s possession. The defendant and his female companion testified that he did not have a gun while the victim and his wife testified as to defendant’s pointing the gun at the victim.

The resolution of conflicts in the evidence is a matter for the jury. McClendon v. State, 187 Ga. App. 666, 668 (371 SE2d 139). A rational trier of fact could reasonably have found from the evidence adduced at trial proof of the defendant’s guilt beyond a reasonable doubt. Lewis v. State, 198 Ga. App. 808, 810 (7) (403 SE2d 233).

2. Pursuant to OCGA § 5-6-41, the trial transcript was supplemented to show that “during the closing agreement [sic] of the state, the Prosecutor stated to the jury that the Defendant stated that you heard the officer testify that the Defendant stated that he was not driving because he had a suspended driver’s license. . . . That the Defense attorney objected to the statement during closing and moved the court for a mistrial. . . . That the motion for Mistrial was denied. . . . That no curative instructions were asked for. . . . That the motion for Mistrial was renewed at the conclusion of the charge of the Court.” The renewal of the motion for mistrial reveals that the basis of defendant’s motion was that the prosecutor’s statement improperly placed his character in evidence. While the trial court’s ruling and following colloquy shows that the prosecutor and trial court believed that the statement made by the prosecutor reflected the testimony given by the officer, such was not correct. The officer’s testimony only shows that defendant stated he did not have a driver’s license.

Although no specific crime is associated with the statement regarding the suspension of defendant’s driver’s license, the reference to the suspension is alone sufficient to identify the defendant as having a prior record of criminal offenses. OCGA § 40-5-50 et seq. Stanley v. State, 250 Ga. 3 (1), 4 (295 SE2d 315). Compare Lancaster v. State, 189 Ga. App. 149 (2) (375 SE2d 281). “[W]here the defendant had not placed his general character in issue, proof of prior offenses or convictions was not admissible unless offered for some proper purpose. . . .” Jones v. State, 257 Ga. 753, 754 (1), 757 (363 SE2d 529). The information contained in the prosecutor’s argument was not admitted into evidence and there was no proper purpose for the admission of such information. Since the statement improperly placed defendant’s character in issue and no remedial action was taken in response to defendant’s motion for mistrial, we must conclude that the trial court abused its discretion. Jones v. State, 257 Ga. 753, 760 (2), supra; Lancaster v. State, 189 Ga. App. 149 (2), supra.

Judgment reversed.

Sognier, C. J., Birdsong, P. J., Carley, P. J., Pope and Cooper, JJ., concur. Andrews, J., concurs in part and dissents in part. Beasley, J., concurs in the result of the dissent as to Division 2.

Andrews, Judge,

concurring in part and dissenting in part.

While I concur fully in Division 1 of the majority opinion, I must respectfully dissent as to Division 2 because I do not believe the objected-to reference placed the defendant’s character in issue. Richardson v. State, 199 Ga. App. 10, 12 (403 SE2d 877) (1991) (Andrews, J., dissenting). Even if it could be said to have done so, I do not believe the statement merited a mistrial.

While defendant did not tell the officer, as erroneously stated by the prosecutor in the closing argument, that his license was suspended, he did say that he did not have a driver’s license. The majority’s assumption that the only reason for suspending or revoking a driver’s license relates to criminal wrongdoing is inaccurate. A person may be incapacitated by reason of disease, mental or physical disability to a degree making them incompetent to drive without any criminal connotations. OCGA § 40-5-57 (a) (2). (Now codified as OCGA § 40-5-59 (b), effective Jan. 1, 1991.)

There was no “placing in evidence” of the character of the accused since the incorrect statement was made as a part of the prosecutor’s closing argument, which, as the jury was correctly instructed, is not evidence. The only violation would have been of OCGA § 17-8-75. As acknowledged by defendant, there was no objection made which would have necessitated a rebuke of counsel and instructions to the jury. He instead sought to have a mistrial granted and contends here that failure to grant it was an abuse of discretion. As ackowledged by the majority, both the court and the prosecutor were under the misimpression that “suspension” had been mentioned in evidence.

In addition, even if suspension of a license had been in evidence, there was nothing to indicate that the reason for suspension, if a result of a criminal prosecution, was anything other than an ordinary misdeameanor traffic violation, not resulting in imprisonment upon conviction or involving “moral turpitude,” as required to place one’s character in evidence. Jones v. State, 257 Ga. 753, 755 (1) (363 SE2d 529) (1988); Franklin v. State, 251 Ga. 77, 81 (303 SE2d 22) (1983); Giles v. State, 71 Ga. App. 736, 740 (c) (32 SE2d 111) (1944).

I do not believe the statement was so prejudicial as to require a mistrial. Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982); Garner v. State, 199 Ga. App. 468 (405 SE2d 299) (1991).

Decided October 9, 1991

Reconsideration denied December 17, 1991.

Warren A. Sellers, John A. Beall IV, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.


author: Judge Arnold Shulman. Carley, Presiding Judge,

text:
    A91A0732.
    DEPARTMENT OF TRANSPORTATION v. GEORGE.
    (414 SE2d 307)
   Judge Arnold Shulman.

The Department of Transportation (DOT) condemned approximately 0.08 acres of land owned by the appellee and acquired both a permanent slope easement and a construction easement on her remaining property, all for the purpose of expanding Highway 42 in Henry County. The appellee operated a western supply business on the property and also maintained residential and office space there which she leased to others. Before the taking, vehicular access to the property was unlimited both along Highway 42 and along Lane Road, an intersecting street. After the taking, the appellee’s front parking lot was virtually eliminated, and access to and from Highway 42 and Lane Road was impaired by curbing. The appellee appealed to a jury on the issue of compensation, and the jury awarded her $280,000. The DOT brings this appeal from the judgment entered thereon.

1. The DOT contends that the trial court erred in refusing to declare a mistrial based on the conduct of the appellee’s counsel in revealing to the jury the amount which the DOT had paid into the registry of the court at the time of the taking. This occurred during cross-examination of the DOT’s appraiser, who had testified on direct examination that the value of the property taken was $114,500 but who had previously executed an affidavit in connection with the declaration of taking valuing the property at $103,000. The DOT objected to the appellee’s questioning the witness regarding this discrepancy; and during the ensuing colloquy, the appellee’s counsel defended this line of cross-examination on the ground that the DOT had based its original estimate of compensation on the appraiser’s affidavit.

The questioning itself was clearly permissible, it being well settled that “the return of an appraiser in a condemnation case which is contradictory of his testimony on the trial may be introduced for the purpose of impeaching him though it is generally inadmissible.” State Hwy. Dept. v. Raines, 129 Ga. App. 123, 128 (199 SE2d 96) (1973). See also Atlanta Recycled &c. Co. v. Tri-Cities &c. Co., 152 Ga. App. 259 (1) (262 SE2d 554) (1979). While the remark concerning the amount paid by the department into the registry of the court at the time of the taking may not have been proper, we note that up until only a few years ago such information was allowed to go out with the jury. See Department of Transp. v. Gunnels, 175 Ga. App. 632 (4) (334 SE2d 197) (1985), rev’d on other grounds, 255 Ga. 495 (340 SE2d 12) (1986). See also Aiken v. Dept. of Transp., 171 Ga. App. 154 (1) (319 SE2d 58) (1984). Considering all of the circumstances, we do not consider this isolated remark to have been so prejudicial as to have demanded the declaration of a mistrial. See generally Department of Transp. v. 590 Acres of Land & Bryan, 174 Ga. App. 589 (3) (330 SE2d 738) (1985).

2. The DOT contends that the trial court erred in denying its motion to strike certain testimony concerning business losses which the appellee had sustained during the period of construction. “[E]vidence of any business losses which result in a diminution of the value of a condemnee’s business is admissible. However, evidence of temporary loss of business is admissible not for the purpose of recovering for the temporary loss of business but for the limited purpose of demonstrating fair market value of the land not taken immediately after the taking.” Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825, 827 (387 SE2d 877) (1990). “It is up to the trier of fact to determine whether the business losses suffered as a result of a temporary easement were a mere inconvenience or whether they resulted in a diminution of the value of the condemnee’s interest in the land not taken.” Id. Accordingly, the trial court did not err in admitting this evidence.

3. The DOT contends that because it was established without dispute that the appellee had continued to operate her business at the same location after the taking, the trial court erred in giving the following charge: “If you find that there will be a total destruction of the business at its present location and that the property is unique, then you would be authorized to determine the amount of just and adequate compensation for business losses. This amount would be separate from and in addition to the actual damages and the consequential damages, if any.”

If a business is not totally destroyed but continues to operate on the remaining property, business losses cannot be recovered as a separate item of damage but may be considered in determining the fair market value of the remainder. See Buck’s Svc. Station v. Dept. of Transp., supra; Department of Transp. v. Dent, 142 Ga. App. 94 (3) (235 SE2d 610) (1977). If the business is totally destroyed, evidence of the resulting loss can be considered by the jury as a separate item of damages, provided the property is unique and the business was operated by the property owner. See Bowers v. Fulton County, 221 Ga. 731, 739 (146 SE2d 884) (1966); Department of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314 (265 SE2d 10) (1980).

There was at least some evidence in this case that the appellee’s property was uniquely suited to the purposes for which she was utilizing it; and there was also evidence that because of the changes resulting from the taking, she would be unable to continue in business at that location unless she demolished the existing building and constructed a new one so as to provide adequate space for customer parking. A business analyst testified that before the taking the business was earning between $22,000 and $56,000 per year but that during the seven months immediately after the taking it had lost in excess of $25,000. The appellee testified that she had continued to operate the business at the same location subsequent to the taking on a temporary basis, in hopes of recovering sufficient funds in the present proceeding to enable her to start construction of a new building. There was evidence that construction of a new building would take approximately one year, that the business would cease to operate during that period, and that it would take an additional year for the new business to become profitable. We conclude that this evidence was sufficient to support a finding by the jury that the appellee’s existing business was totally destroyed as a result of the taking, and we accordingly hold that the trial court did not err in giving the charge in question. We note, however, that the jury’s verdict could not, in any event, have included an award of damages for total destruction of the appellee’s business as an “amount separate from and in addition to the actual damages and the consequential damages,” for the appellee’s financial expert testified that her business was worth $280,000 before the taking, and by the DOT’s own reckoning the land taken was worth $114,500. Thus, the charge in question would not appear to have been harmful to the DOT.

4. The DOT contends that the trial court erred in allowing its project engineer to be cross-examined about the size of a neighboring driveway. However, the witness’s response was that he was unfamiliar with the dimensions of the driveway in question and therefore could not answer the question. Consequently, this questioning, if improper, was harmless.

5. The DOT contends that the trial court erred in admitting evidence regarding the changed access to the property and in charging the jury that the appellee could be compensated for her loss of access. “The right of access, or easement of access, to a public road is a property right which arises from the ownership of land contiguous to a public road, and the landowner cannot be deprived of this right without just and adequate compensation being first paid.” MARTA v. Datry, 235 Ga. 568, 575 (220 SE2d 905) (1975). There was evidence that the appellee had unlimited access both to Highway 42 and to Lane Road before the taking and that such access was critical to her business because her customers often drove tractor-trailer trucks or horse trailers requiring extensive room to maneuver. The evidence further established that after the taking the appellee’s access to Highway 42 and to Lane Road was limited to a 20-foot driveway. This evidence was admissible under MARTA v. Datry, supra, and the court’s charge on the issue of impairment of access was therefore authorized. See also DeKalb County v. Glaze, 189 Ga. App. 1 (1) (375 SE2d 66) (1988).

6. The DOT contends that the trial court erred in admitting into evidence a tape measure which the appellee’s attorney had utilized during the trial to illustrate certain points. As it is not apparent how this evidence could possibly have harmed the department, this enumeration of error establishes no ground for reversal.

7. The appellee has moved this court for imposition of a penalty against the DOT pursuant to OCGA § 5-6-6 for pursuing a frivolous appeal. While we have determined that the appeal is not meritorious, we cannot agree that it was so palpably without merit as to demand the conclusion that it was filed for purposes of delay only. Consequently, the appellee’s motion is denied. See Great Atlantic &c. Co. v. Burgess, 157 Ga. App. 632 (4) (278 SE2d 174) (1981).

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Beasley and Cooper, JJ., concur. Carley, P. J., and Andrews, J., dissent.

Carley, Presiding Judge,

dissenting.

The majority, finding no reversible error, affirms the judgment in this condemnation action. In my opinion, numerous errors mandating a new trial were committed by the trial court. Accordingly, I must respectfully dissent.

1. In Division 1, the majority finds no reversible error in the refusal to grant a mistrial when counsel for appellee-condemnee revealed to the jury the amount which appellant-condemnor had paid into the registry of court at the time of the taking. The record shows that, at trial, condemnor’s expert testified that, in his opinion, the value of the property was $114,500. If condemnor’s expert had previously reached an opinion as to value which was higher than $114,500, then his previous opinion would clearly be admissible to impeach his trial testimony that the value of the property was only $114,500. See State Hwy. Dept. v. J. A. Worley & Co., 103 Ga. App. 25, 28 (4) (118 SE2d 298) (1961); Georgia Power Co. v. Hudson, 46 Ga. App. 206 (3) (167 SE 206) (1932). However, that is not what occurred in the instant case. Condemnee revealed to the jury that the amount of estimated just and adequate compensation that condemnor had previously paid into the registry of court was less than the opinion as to value expressed by condemnor’s expert at trial. That the original amount of estimated just and adequate compensation was $103,000 is certainly not relevant as impeaching of the trial testimony of condemnor’s expert that the property had a higher value of $114,500. Its only effect would be to prejudice condemnor, tending to intimate an attempt to have secured condemnee’s property for less than its true value. Under these circumstances, it is my opinion that the prejudicial reference to the amount of estimated just and adequate compensation warranted the grant of a mistrial: “ ‘ “An appeal (in a condemnation by declaration of taking) is a trial de novo on the question of compensation, and it is the function and duty of the jury to pass upon the issues independently of the (estimate of just and adequate compensation). [Cit.]” [Cit.]’ [Cit.]” Department of Transp. v. Gunnels, 175 Ga. App. 632, 636 (4) (334 SE2d 197) (1985), rev’d on other grounds, 255 Ga. 495 (340 SE2d 12) (1986). “There was no reason why the [amount of estimated just and adequate compensation] should have been before the jury. The question submitted to them for solution was to be determined by them independently of the antecedent action of the [condemnor]. The jury had to ascertain, under the evidence submitted to them, the value of the land and the amount of damages. The [amount of estimated just and adequate compensation] could not have been evidence for their consideration.” Atlanta, Birmingham &c. R. Co. v. Smith, 132 Ga. 725, 727 (1) (64 SE 1073) (1909). “Placing the [amount of estimated just and adequate compensation] in evidence on a trial before the jury is impermissible. [Cits.] This [comment by condemnee’s counsel], not warranted by the evidence, constitutes an impairment of the right to a fair trial, nothing else appearing. [Cits.]” State Hwy. Dept. v. Cantrell, 119 Ga. App. 241, 242-243 (lb) (166 SE2d 604) (1969). “Nothing else appearing” in the instant case, such as curative instructions, it follows that condemnor was denied a fair trial and that the judgment must be reversed. Compare Gate City Terminal Co. v. Thrower, 136 Ga. 456, 470 (71 SE 903) (1911); State Hwy. Dept. v. Cantrell, supra at 243 (1b).

2. In Division 2, the majority finds no error in the denial of condemnor’s motion to strike certain testimony concerning business losses which condemnee had sustained during the period of construction. As the majority notes, it is a correct principle of law that “evidence of temporary loss of business is admissible not for the purpose of recovering for the temporary loss of business but for the limited purpose of demonstrating fair market value of the land not taken immediately after the taking.” (Emphasis supplied.) Buck’s Svc. Sta tion v. Dept. of Transp., 259 Ga. 825, 827 (2) (387 SE2d 877) (1990). In the instant case, one of condemnee’s other witnesses did give an ultimate opinion of the fair market value of the remainder of condemnee’s property after the partial taking. Accordingly, I agree that the testimony as to temporary business losses was admissible for the “limited purpose” of demonstrating the fair market value of the remainder immediately after the taking.

In Division 3, however, the majority finds that a charge on the recovery of business losses as a separate element of compensation was also authorized. “When the business belongs to the landowner, total destruction of the business at the location must be proven before business losses may be recovered as a separate element of compensation. [Cit.]” (Emphasis supplied.) Department of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10) (1980). The undisputed evidence of record shows that condemnee’s business was not totally destroyed. Department of Transp. v. Kendricks, 148 Ga. App. 242, 244 (1) (250 SE2d 854) (1978); Department of Transp. v. Dent, 142 Ga. App. 94, 95 (3) (235 SE2d 610) (1977). Accordingly, business losses were clearly not recoverable as a separate element of compensation and a charge on that issue should not have been given. Since condemnee’s business was damaged but not destroyed, she was limited to recovering for the diminution in the fair market value of the remainder. Buck’s Svc. Stat. v. Dept. of Transp., supra at 827 (2). “[T]he charge was not supported by evidence since the business continued to operate at the same location. . . . Because it was not adjusted to the evidence, the jury instruction was erroneous. [Cit.]” Department of Transp. v. Dent, supra at 95 (3).

3. In Division 4, the majority holds that, if improper, cross-examination of condemnor’s witness regarding a driveway on neighboring condemned property was harmless. Since, in my opinion, the instant case must be reversed, I would hold that the questioning was improper and if, upon retrial, condemnee again attempts to pursue that irrelevant topic, an objection to the relevancy thereof should be sustained.

4. In Division 6, the majority finds no error in admitting into evidence the tape measure that condemnee’s expert had used to illustrate certain points during his testimony. However, the tape measure itself was not relevant to any issue at trial and, insofar as condemnor did not seek to admit any irrelevant measuring devices, the jury may have been given the erroneous impression that the testimony of condemnee’s expert was more credible simpiy because it had been “corroborated” by tangible evidence in the form of the tape measure. The erroneous admission of this irrelevant evidence may not be an independent ground for reversal. However, since, in my opinion, the instant case must be reversed, I would hold that if, upon retrial, an objection to the admission of the irrelevant tape measure is raised, that objection should be sustained.

Decided December 4, 1991

Reconsideration denied December 19, 1991

Michael J. Bowers, Attorney General, Bolton & Park, Jack L. Park, Jr., for appellant.

Smith, Welch & Studdard, A. J. Welch, Jr., J. Mark Brittain, for appellees.


author: Cooper, Judge.

text:
    A91A0831.
    AMERICAN INTERNATIONAL ADJUSTING COMPANY et al. v. DAVIS.
    (414 SE2d 292)
   Cooper, Judge.

In August 1988, appellee was examined by Dr. Don Robinson, a pulmonary disease specialist, after experiencing chest pains and difficulty in breathing. Appellee was exposed to kaolin dust in the course of his employment and stopped working on September 3, 1988. After a series of tests, Dr. Robinson advised appellee, on September 9, 1988, that in his opinion, appellee contracted work-related pneumoconiosis and was totally disabled. Appellee then informed his employer that he would be out of work. The personnel clerk with responsibility for administering group health benefit plans provided appellee with the paperwork necessary for coverage, which appellee completed and returned on October 14, 1988, along with a statement from Dr. Robinson reporting his diagnosis. Shortly thereafter, appellee began receiving group disability benefits. The employer referred appellee to Dr. William Rawlings for a second opinion, and after examining appellee on October 14, 1988, Dr. Rawlings confirmed the kaolin pneumoconiosis diagnosis but concluded that appellee was not totally disabled and could work at tasks free from kaolin exposure. On October 17, 1988, Dr. Rawlings advised the employer’s nurse that appellee be given tasks with mild or moderate activity free from exposure to kaolin dust. On October 27, 1988, appellee retained legal counsel for assistance in making a claim for workers’ compensation benefits. Beginning on November 3, 1988 until January 9, 1989, appellee saw Dr. Ram Puri, who agreed that appellee was totally disabled, but Dr. Puri also concluded that appellee could work in another area away from kaolin dust. The employer filed its first report of injury and notice to controvert payment of compensation with the board on December 2, 1988, and the following day, counsel for appellee notified the employer of his representation of appellee and requested medical records. On October 4, 1989, appellee filed a claim for workers’ compensation benefits with the board. An attorney fee contract submitted to the ALJ revealed that appellee had new counsel who began working for appellee on October 2, 1989.

Appellants, the employer and its insurer, moved for a dismissal of appellee’s claim on the ground that the claim was time-barred. After conducting a hearing, the ALJ granted the motion, and appellee appealed to the full board. The full board adopted the ALJ’s findings of fact and conclusions of law, and the case was appealed to the superior court where it was reversed. We granted appellants’ application for discretionary appeal to determine whether the trial court erred in reversing the board’s dismissal of appellee’s claim for benefits.

1. In their first five enumerations of error, appellants contend the superior court committed legal error and acted in excess of its authority in reversing the ruling of the board that appellee’s claim was time-barred by OCGA § 34-9-281 (b) (2) and in determining that OCGA § 34-9-82 (a) was the applicable statute of limitation.

(a) In its order, the superior court ignored the determination of the board that OCGA § 34-9-281 (b) (2) was the applicable statute of limitation and declared that OCGA § 34-9-82 (a) controlled. However, implicit in the board’s adoption of the former statute as the applicable statute of limitation was its determination that appellee’s pneumoconiosis satisfied the statutory definition of an occupational disease which is “[a disease] which arise[s] out of and in the course of the particular trade, occupation, process, or employment in which the employee is exposed to such disease, provided the [following is proven]: (A) A direct causal connection between the conditions under which the work is performed and the disease; (B) That the disease followed as a natural incident of exposure by reason of the employment; (C) That the disease is not of a character to which the employee may have had substantial exposure outside of the employment; (D) That the disease is not an ordinary disease of life to which the general public is exposed; (E) That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.” OCGA § 34-9-280 (2). A review of the record shows that there was ample evidence to support the determination that appellee’s pneumoconiosis was an occupational disease; therefore, the specific statute of limitation applicable to occupational diseases as set forth in OCGA § 34-9-281 (b) (2) should control, instead of the statute generally applicable to compensable injuries found in OCGA p 34-9-82 (a). “ ‘(T)he findings (of the board) are conclusive and binding (OCGA § 34-9-105 (c)) and neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.’ [Cits.] The superior court, when sitting as an appellate body, is bound by the ‘any evidence’ standard of review and is not authorized to substitute its judgment as to weight and credibility of the witnesses. [Cit.]” Maddox v. Elbert County Chamber of Commerce, 191 Ga. App. 478 (1) (b, c) (382 SE2d 150) (1989). By adopting OCGA § 34-9-82 (a) and ignoring the Board’s determination, the superior court became a factfinding body, substituting its own judgment of the evidence for the judgment of the Board.

OCGA § 34-9-281 (b) (2) provides, in pertinent part, “an employer shall be liable for compensation under this article only where . . . [t]he claim for disablement is filed within one year after the date the employee knew or, in the exercise of reasonable diligence, should have known of the disablement and its relationship to the employment. . . .” (Emphasis supplied.) The record establishes, by appellee’s own testimony, that on September 9, 1988, Dr. Robinson informed him that he had contracted pneumoconiosis due to exposure to kaolin dust at work. Therefore, appellee’s claim should have been filed within one year of September 9, 1988, and his filing on October 4, 1989 was beyond the statutory period. Appellee is incorrect in his contention that he should not be charged with knowledge of his disability until Dr. Rawlings provided the second opinion because this opinion, rendered at the behest of the employer, provided notice of his disability to the employer. The focus of the statute is on the employee’s knowledge. Moreover, Dr. Rawlings’ opinion served to confirm Dr. Robinson’s initial diagnosis. Hence, under the “any evidence” rule, the Board was correct in dismissing the claim as time-barred.

(b) However, even if OCGA § 34-9-82 (a) were applicable, the result would be the same. That statute provides, “[t]he right to compensation shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits.” Notwithstanding specific findings of the Board to the contrary, the superior court found that benefits in accordance with the statute had been paid; that Drs. Robinson, Rawlings and Puri provided remedial treatment; that Dr. Puri’s remedial treatment occurred as late as December 6, 1988; and that appellee’s claim was timely filed. In contrast, the Board found that such treatments were diagnostic, not remedial; that the employer’s group medical insurance carrier paid for the medical services rendered by Drs. Robinson and Puri; and that such payments made under the employer’s group medical insurance coverage were not workers’ compensation payments which tolled the statute of limitation. Leavell v. Life Ins. Co. of Ga., 165 Ga. App. 770, 773 (302 SE2d 623) (1983). We agree with the board. Furthermore, the payments did not represent “weekly benefits ... on account of the injury” as they were not made “in lieu of compensation.” Harper v. L & M Granite Co., 197 Ga. App. 157 (2) (a) (397 SE2d 739) (1990). In addition, the board’s determination that the treatments provided by the physicians were diagnostic is fully supported by the evidence. See generally Owens-Illinois, Inc. v. Childers, 160 Ga. App. 566, 568 (288 SE2d 11) (1981). “The superior court was required to construe the evidence in the light most favorable to the employer as the party who prevailed before the Full Board. [Cits.]” Department of Public Safety v. Boatright, 188 Ga. App. 612 (1) (373 SE2d 770) (1988). OCGA § 34-9-200 (a) provides in pertinent part, that “[t]he employer shall furnish the employee entitled to benefits under this chapter such medical. . . care . . . which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.” (Emphasis supplied.) The superior court again erred in substituting its judgment for the fully supported findings of the board. Boatright, supra at 615.

The superior court’s reliance on Georgia Institute of Technology v. Gore, 167 Ga. App. 359 (306 SE2d 338) (1983) for the proposition that Dr. Puri’s treatment was remedial is misplaced. In Gore, this court held that when an employer fails to post a panel of physicians in violation of OCGA § 34-9-201 (b), medical treatment rendered on account of an employment-related injury is deemed remedial, for statute of limitation purposes. However, there is no factual or legal parallel between Gore and the instant case. Appellee has not alleged that the employer failed to post a panel of physicians, and there is no evidence in the record of such a violation by the employer, nor a finding of a violation of any other Board Rule. The Board found that no remedial treatment had been rendered which would toll the statute of limitation and that the nature of appellee’s visits to the physicians was diagnostic. The superior court cited no evidence to the contrary. There also was no finding either by the ALJ, the board or the superior court that the employer wrongfully controverted appellee’s right to compensation. Moreover, in its order, the superior court stated that the employer “cut off” appellee’s medical benefits while the record demonstrates and the board specifically found that all medical bills for services provided by Dr. Puri were paid by the employer’s group carrier.

(c) Appellee contends that appellants are estopped from asserting the statute of limitation as a defense because the notice to controvert was not timely filed (OCGA § 34-9-221 (d)). However, according to Raines & Milam v. Milam, 161 Ga. App. 860, 862 (289 SE2d 785) (1982), failure to timely file a notice to controvert does not estop the employer from defending against a claim.

Decided December 3, 1991

Reconsideration denied December 19, 1991

Jones, Cork & Miller, Rufus D. Sams III, James M. Elliott, Jr., for appellants.

Carter & Butt, Eugene D. Butt, for appellee.

In further support of his argument that appellants are estopped from asserting the statute of limitation as a defense, appellee alleges that the employer’s personnel clerk, in October 1988, deliberately filed his claim as a group claim when it was apparent that he had sustained a compensable work-related injury and the clerk fraudulently assured him he was being taken care of, thereby inducing him not to file a claim within the one-year period. The board specifically found that assurances of payment under the group plan and appellee’s completion of the paperwork for those benefits did not induce appellee to refrain from filing for workers’ compensation; that appellee retained legal counsel to pursue a workers’ compensation claim as early as October 27, 1988; that counsel requested appellee’s medical records from the employer on December 2, 1988; that the statute of limitation commenced on September 9, 1988; that there was no plausible reason for appellee’s counsel’s failure to file a claim on appellee’s behalf until after the statute had run; and that appellants were not estopped from asserting the defense. We agree. “Under these facts, there is no basis for a conclusion that the employer induced the claimant to allow the statute to run by leading [him] to believe that benefits would be paid voluntarily.” Owens-Illinois, supra at 568.

Based on the foregoing, we conclude that the superior court erred in reversing the board’s dismissal of appellee’s workers’ compensation claim.

2. In their sixth and seventh enumerations of error, appellants contend the superior court acted in excess of its authority in finding appellants responsible for payment of treatment rendered by Dr. Puri in the absence of the requisite findings of fact by the board pursuant to OCGA § 34-9-200 (a) and as to the actual amount of such charges. Inasmuch as we have determined that appellee’s claim was barred by the statute of limitation, we need not consider these enumerations.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.


author: Cárley, Presiding Judge.

text:
    A91A0862.
    S. HAMMOND STORY AGENCY, INC. v. BAER.
    (414 SE2d 287)
   Cárley, Presiding Judge.

Alleging that appellee-defendant had breached a restrictive covenant ancillary to the sale of a business in which he had been a minority shareholder, appellant-plaintiff brought an action for breach of contract and tortious interference with business relations. The trial court granted appellee’s motion for summary judgment and subsequently awarded appellee OCGA § 9-15-14 attorney’s fees. Appellant appeals only the award of attorney’s fees pursuant to this court’s grant of its application for discretionary appeal.

Appellee urged that, although he had participated in the sale of the business, he had given the covenant only in his capacity as a post-sale employee of appellant and that, as written, the covenant would be unenforceable against him. Appellant did not contest that the covenant would be unenforceable against appellee in his capacity as a post-sale employee. Instead, appellant urged that appellee had given the covenant in his capacity as a seller of the business and that, as “blue penciled,” the covenant would be enforceable against him. Both appellee and appellant acknowledged that the controlling legal principle for construction of the covenant was the following: “[W]here a trial judge is asked to determine the enforceability of a noncompetition covenant which the buyer of a business contends was given ancillary to the covenantor’s relinquishment of his interest in the business to the buyer, and not given solely in return for the covenantor’s continued employment, the judge must determine the covenantor’s status. If it appears that his bargaining capacity was not significantly greater than that of a mere employee, then the covenant should be treated like a covenant ancillary to an employment contract, and ‘(a)s such, it should be enforced as written or not at all.’ [Cit.]” White v. Fletcher/Mayo/Assoc., 251 Ga. 203, 208 (303 SE2d 746) (1983). The trial court found that appellee’s bargaining capacity was no greater than that of a “mere employee” and that appellant’s contentions to the contrary warranted the imposition of OCGA § 9-15-14 attorney’s fees.

In determining that the covenantor in White had a bargaining capacity no greater than that of a “mere employee,” the Supreme Court considered several factors to be relevant. When those same factors are considered in light of the evidence adduced in the instant case, appellee’s bargaining power was certainly no greater than that of the “mere employee” in White. Appellant urges that even if appellee’s unilateral bargaining power was no greater than that of a “mere employee,” he, unlike the “mere employee” in White, had enhanced his limited bargaining power by delegating it to the two controlling shareholders. However, appellant suggests no reason why appellee “could [not] reasonably have assumed that if he did not do as [the controlling shareholders] wished he would be stigmatized as not being a team player, thereby jeopardizing his career prospects with [appellant].” White v. Fletcher /Mayo /Assoc., supra at 207. Accordingly, the delegation of appellee’s limited bargaining capacity to those who were already the controlling shareholders would certainly not be inconsistent with his status as a “mere employee.” Furthermore, there was no probative evidence of any delegation by appellee of his bargaining capacity. Although appellee admitted that he had accepted the controlling shareholders’ portrayal of the merger as extremely profitable, he specifically denied ever having delegated his bargaining capacity to the controlling shareholders. Hearsay evidence of any representation purportedly made by the controlling shareholders that appellee had delegated his bargaining capacity to them would be inadmissible and non-probative of their agency. See Booth v. Watson, 153 Ga. App. 672, 674-675 (1) (266 SE2d 326) (1980).

Decided December 2, 1991

Reconsideration denied December 19, 1991

Schulten & Ward, W. Scott Schulten, Mark S. Izenson, for appellant.

Wimberly & Lawson, Scott J. Fuller, Martin H. Steckel, for appellee.

Unless White v. Fletcher/Mayo/Assoc., supra, was distinguishable, that decision clearly controlled adversely to appellant’s claim. The trial court was authorized to find that appellant made no attempt to distinguish that controlling authority such as would foreclose the assessment of OCGA § 9-15-14 attorney’s fees. “The trial court awarded [only those] attorney[’s] fees and expenses of litigation [incurred after appellee requested appellant to dismiss the action,] on the basis of both OCGA § 9-15-14 (a) and (b). OCGA § 9-15-14 (a) provides for a mandatory award. The standard of review for this section is the ‘any evidence’ rule. OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion. Under both standards the record supports the trial court’s award.” Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4c) (360 SE2d 566) (1987).

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.


author: Pope, Judge.

text:
    A91A0889.
    PETERSON v. BAUMWELL et al.
    (414 SE2d 278)
   Pope, Judge.

Appellee Roberta Steen and appellant Tommy Peterson decided to purchase a piece of residential real estate located at 468 Greenwood Avenue in Atlanta, Georgia. The parties intended to renovate the dwelling on the property and use it as rental property. Peterson, who had previously been involved in similar projects, was in charge of renovating the property. Steen agreed to live on the property and manage it. In order to cover mortgage payments and other expenses, the parties determined they would need four rental units plus the one occupied by Steen. The parties believed the property had been used as multi-family rental property in the past but realized they needed to get the proper zoning authorization from the City of Atlanta (the “City”) prior to closing. Peterson suggested that they get Jed Baumwell, whom Peterson had been partners with on similar renovation projects, to obtain the necessary documentation from the City.

Shortly before closing Peterson obtained a letter from Baumwell entitled “Verification of Zoning Classification.” This letter appeared to have been issued by a zoning review officer for the City and indicated that, based on prior non-conforming use, the property legally could be used as a five-unit building. Soon after closing on the property Steen learned that the letter was a forgery and that the property was legally zoned for use as a one or two family residential dwelling. Because the parties could not use the property as originally intended, renovations were never completed. The parties became delinquent in their mortgage payments, and the lender subsequently regained the property through foreclosure proceedings.

Steen and Peterson filed suit against Baumwell seeking damages and other relief based on their reliance on the fraudulent zoning letter in purchasing the property. At that time both Steen and Peterson were jointly represented by Louis Polonsky, Esq. Baumwell answered, asserting, inter alia, that the action against him was barred by the Clean Hands Doctrine. Based on this and other information, Steen became suspicious that Peterson had knowledge of the fraudulent nature of the letter from the beginning and notified Polonsky that she no longer wished for him to represent her. Polonsky filed a motion to withdraw as counsel for both parties, which was granted by the trial court. Steen obtained new counsel and amended her complaint to include a cross-claim against Peterson based on her contention that he and Baumwell had acted in concert in procuring the fraudulent zoning letter, as well as a claim against both Peterson and Baumwell under the Georgia RICO Act based on their alleged procurement of fraudulent zoning letters on other properties. Peterson answered and also filed a cross-claim against Steen, contending, inter alia, that she breached the parties’ agreement to renovate the property.

The parties proceeded to conduct discovery in the case. At the beginning of Polonsky’s deposition, Peterson’s attorney invoked the attorney-client privilege on his client’s behalf and Polonsky, relying on the privilege, refused to answer numerous questions posed by Steen and Baumwell. The questions Polonsky refused to answer were certified and Steen subsequently filed a motion to compel answers to these certified questions. The trial court granted Steen’s motion and ordered Polonsky to respond to the certified deposition questions concerning his communications with Steen and Peterson. We granted Peterson’s application for interlocutory appeal and Peterson timely filed his notice of appeal to this court on November 5, 1990. Held:

1. Peterson first challenges an earlier order of the trial court directing Peterson to answer questions about a document entitled “Baumwell’s Trail of Zoning Verification Letters,” which Peterson prepared during the time that Polonsky represented both he and Steen, on the basis that such document was not protected by the attorney-client privilege. Although Peterson did not seek to appeal that order at the time it was entered, he argues that upon the grant of his application for interlocutory review such order also became subject to review by this court pursuant to OCGA § 5-6-34 (d). That Code section, however, also provides that the appellate courts of this state are not required to pass on moot questions. The record here shows that Peterson complied with the trial court’s order compelling him to respond to questions concerning the Trail of Zoning document, thereby rendering the issue of the applicability of the attorney-client privilege to testimony concerning that document moot. See In the Interest of J. B., 199 Ga. App. 593 (405 SE2d 574) (1991). We thus decline to address the merits of this enumeration.

2. Peterson next contends that the trial court erred in ordering Polonsky to give deposition testimony about matters which Peterson contends are protected from disclosure by the attorney-client privilege. “ ‘Our Code recognizes certain privileges, including the attorney-client privilege, and prohibits the evidentiary use of communications protected by the privilege. See OCGA §§ 24-9-21; 24-9-24 and 24-9-25.’ [Cit.] ‘Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.’ (Emphasis supplied.) [Cits.]” Southern Guaranty Ins. Co. v. Ash, 192 Ga. App. 24, 25 (383 SE2d 579) (1989). However, as Peterson concedes, a well-recognized exception to the exclusion of evidence based on attorney-client privilege exists in those situations in which the attorney jointly represented two or more clients whose interests subsequently become adverse, such as in the case at bar. Thus, “ [i]f two or more persons jointly consult [or retain] an attorney the communications which either makes to the attorney are not privileged in the event of any subsequent litigation between the parties. In such situations it is considered that the attorney does not have an attorney-client relationship with either of the joint parties.” Gearhart v. Etheridge, 232 Ga. 638, 640-641 (208 SE2d 460) (1974), citing Green, Georgia Law of Evidence, § 185 (1957). See also Atwood v. Sipple, 182 Ga. App. 831 (3) (357 SE2d 273), cert, denied, 484 U. S. 944 (108 SC 330, 98 LE2d 357) 1987).

Applying this exception to the case at hand, it is clear, as Peterson concedes, that the communications he and Steen made to Polonsky during the time they were jointly represented are admissible, and hence discoverable, in this subsequent litigation between them as to matters pertaining to the joint representation. Peterson argues, however, that the trial court erred in applying the “joint-attorney” exception in this case because the effect is to allow Baumwell, a third party, access to the otherwise privileged communications. As is discussed more fully below, we find this argument to be unpersuasive under the facts of this case.

First, it is axiomatic that the privilege belongs to the client, not the attorney, see Gilbert v. State, 169 Ga. App. 383 (1) (313 SE2d 107) (1984), and the burden is on the client, here Peterson, to prove that his communications to counsel were privileged and thus not subject to discovery. Southern Guaranty, supra at 29. “Where evidence is objected to, the burden is upon the objecting party to show where the evidence is inadmissible. [Cit.]” Parker v. Wellons, 43 Ga. App. 721, 724 (160 SE 109) (1931). The record shows that although Peterson asserted the privilege at the beginning of Polonsky’s deposition, he failed to file a response to Steen’s motion to compel Polonsky’s answers to the certified deposition questions and failed to present any argument when the motion was orally argued to the trial court, except to indicate to the court that he did not waive the privilege. Indeed, his attorney made the statement during oral argument that he was there “just [as] amicus.” In our opinion, and especially in light of the fact that it is the burden of the client, and not the attorney, to prove the applicability of the privilege, Peterson’s failure to offer any opposition to Steen’s motion in the court below constitutes an “acquiescence by silence” to the trial court’s subsequent ruling and, consequently, a waiver of his right to appeal that ruling to this court. See Horan v. Pirkle, 197 Ga. App. 151, 152 (1) (397 SE2d 734) (1990). “ ‘ “One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.’” [Cit.]” Id.

Moreover, we do not believe that the presence of Baumwell as a party to this litigation mandates that an “exception” to the joint-attorney exception should be made in this case. The gist of Steen’s complaint against Peterson was that he and Baumwell acted in concert to perpetuate a fraud against her. If the allegedly privileged communications to Polonsky show- this to be the case, then this information is presumably already known to Baumwell, a party to the alleged “conspiracy.” If the evidence fails to support or is irrelevant to Steen’s claims against Peterson, then that evidence would also tend to be irrelevant to Peterson’s and Baumwell’s claims against each other, or, if relevant, would tend to support Peterson’s denials about his involvement in the procurement of the fraudulent zoning letters. Thus, under the circumstances here, we fail to see how the disclosure of the evidence to Baumwell will result in irreparable harm to Peterson, as he contends on appeal.

Moreover, other courts have applied the joint-attorney exception in situations in which the information revealed would be unfavorable to the former client vis-a-vis his position to another party in the litigation who is a stranger to the former attorney-client relationship. In Hoffman v. Labutzke, 289 NW 652 (Wis. 1940), a wrongful death case, the insured and the insurer had been jointly represented both before and throughout the trial. Following trial, the insured informed the attorney that he had lied at trial about the circumstances surrounding the accident giving rise to the wrongful death action. The insurer sought a new trial on the basis, inter alia, that the insured’s statement showed a breach of a condition of coverage under the policy, and asserted that the statement should not be protected by attorney-client privilege. Id. at 655. Although not discussed by the appellate court, it is obvious that in addition to providing the insurer with a possible coverage defense, the attorney’s testimony concerning the insured’s after trial statement also would have shown that the insured, who had also filed a motion for new trial, fabricated his defense against the wrongful death action. Nevertheless, the Supreme Court of Wisconsin, applying the joint-attorney exception to the attorney-client privilege, deemed the privilege had been waived and allowed the attorney to testify about the insured’s statement. In reaching this result the court reasoned that “when one party consents [to joint representation], his privilege under the statute ‘is waived.’ . . . Each [party] waived the privilege of the statute as to reporting his communications to the other whenever those communications affected the interest of the other, . . . and if each so waived it for like reason each waived it as to testifying in court as to such communications.” Id. at 657.

We think the court’s analysis in Hoffman is instructive as to the resolution of the issues presented in the case at bar. If, by consenting to joint representation, Steen and Peterson waived the attorney-client privilege as to communications affecting the interests of the other, then such communications should be discoverable by each one of them against the other. The fact that there is present in this litigation a third party who will gain access to these communications does not change the fact of the initial waiver. For these reasons, the trial court did not err in ordering Polonsky to answer the certified deposition questions.

Decided November 27, 1991

Reconsideration denied December 19, 1991

Edward J. Bauer, for appellant.

Theodore L. Marcus, Starkey, Land & Crowley, Carl A. Crowley III, Gambrell, Clarke, Anderson & Stolz, James L. Paul, Rubin, Winter & Rapoport, S. Richard Rubin, for appellees.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

       See also Rule 6.2 of the Georgia Uniform Superior Court Rules which provides that, unless otherwise ordered by the trial judge, each party opposing a motion shall file a response not later than 30 days after service of said motion. (Emphasis supplied.)


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A0901.
    TURNER et al. v. W. E. PRUETT COMPANY, INC. et al.
    (414 SE2d 248)
   Carley, Presiding Judge.

Appellant-plaintiff’s wife was killed in a vehicular collision. In his individual capacity and in his capacity as his wife’s administrator, appellant filed suit against appellee-defendants. The case was tried before a jury and a verdict in favor of appellees was returned. Appellant appeals from the judgment entered on the jury’s verdict and from the denial of his motion for a new trial.

1. Although appellant enumerates as error the giving of one of appellees’ requests to charge, the record shows that the only objection that he ever raised in the trial court was an assertion that he “would most strenuously except to the giving of [the charge].” The specific basis or bases upon which appellant “would most strenuously except” were not set forth. “This exception constituted a mere general objection insufficient under Christiansen v. Robertson, 237 Ga. 711 (229 SE2d 472) (1976). [Cit.]” F.A.F. Motor Cars v. Childers, 181 Ga. App. 821, 822 (2) (354 SE2d 6) (1987). Since the giving of the charge did not constitute “substantial error” within the ambit of OCGA § 5-5-24 (c) (see generally Henderson v. Glen Oak, Inc., 179 Ga. App. 380, 382 (4) (346 SE2d 842) (1986)), this enumeration of error presents nothing for review.

2. The instant lawsuit was not filed by appellant until shortly before the applicable statute of limitation had run and, at no time did appellees ever contend that the lawsuit had not been timely filed or served. Appellant filed a pretrial motion in limine which asserted that the timing of the filing and service of the lawsuit was irrelevant and sought to preclude appellees from pursuing that topic before the jury. Appellees opposed the motion, their counsel asserting that the topic was relevant and that he “may not bring it up in the opening statement but it may well come out. It may come out in the cross-examination and certainly goes to the credibility of witnesses.” The trial court denied appellant’s motion in limine and this ruling is enumerated as error.

The length of time that has passed between an allegedly actionable occurrence and the giving of an eyewitness’ account of that occurrence may be relevant to the credibility of that eyewitness’ account. The memory of any eyewitness, whether for the plaintiff or the defendant, can fade over time. However, the length of time that has passed between an allegedly actionable occurrence and the filing of a lawsuit based upon that occurrence has absolutely no arguable relevancy whatsoever to the credibility of the plaintiff’s eyewitnesses. A lawsuit is initiated only by the plaintiff, not by his eyewitness, and the timing of the initiation of a lawsuit is relevant only to the plaintiff’s right to seek a recovery, not to the credibility of those eyewitnesses upon whom he may rely in support of his effort to obtain a recovery. If the plaintiff has not filed his lawsuit within the applicable statute of limitation he is barred from recovering regardless of the credibility of his eyewitnesses. If, however, the plaintiff has filed his lawsuit within the statute of limitation, he is entitled to seek to recover without having to address the irrelevant issue of why he failed to institute the litigation earlier. The law only requires that a plaintiff file his lawsuit within the applicable statute of limitation. Therefore, the only “delay” in filing a complaint that has any legal relevancy whatsoever is that which renders the complaint untimely, not that which merely renders the complaint nearly untimely. The timing of the filing of the instant complaint is no more relevant to any issue of appellant’s right to recover than the timing of the filing of the instant answer is relevant to any issue of appellees’ liability. So long as appellees filed their answer within the statutorily mandated 30 days after Service, they are entitled to defend without having to address the irrelevant issue of their “delay” in failing to have filed an earlier answer. Accordingly, the trial court erred in ruling that appellees’ counsel would be allowed to pursue the clearly irrelevant topic of the timing of the filing of appellant’s complaint.

The fact that it was appellant’s own counsel who had first introduced the topic before the jury in his opening statement is irrelevant to our disposition of the instant case. As noted, in opposing appellant’s motion in limine, appellees’ counsel had unequivocally stated that the timing of the filing of appellant’s complaint was “a pertinent issue in this case. I may not bring it up in the opening statement but it may well come out. It may come out in the cross examination and certainly goes to the credibility of witnesses.” Since appellees’ counsel had indicated his intent to pursue the issue of the timing of the filing of appellant’s complaint and since the trial court had sustained appellees’ right to do so by denying appellant’s motion in limine, appellant clearly did not “open the door.” In mentioning the issue in his opening statement to the jury, appellant’s counsel was merely reacting to the erroneous denial of the motion in limine. It was the erroneous ruling on the motion in limine that opened the door and forced appellant’s counsel to attempt to explain to the jury in his opening statement the timing of the filing of the complaint.

Moreover, the erroneous ruling was not harmless. Appellees’ counsel used the erroneous ruling as a vehicle for making the following prejudicial argument: “I don’t know why [appellant’s counsel] told you [in his opening statement] that [the suit was not filed until the statute of limitations had almost run] other than I guess he thought if it came out you would think [appellant] didn’t have much confidence in [his] claim in this case. I don’t know why it wasn’t filed until the two year deadline. It had almost arrived. But it suggests to me that, and we know they were investigating this thing. . . . long before two years had come up. I don’t know why he brought that up except it does seem to me there was a lot of doubt about this case from the beginning.” Of course, the only reason that appellant’s counsel had broached the topic was that he had been forced to do so in an effort to respond to the erroneous evidentiary ruling that appellees had secured on the motion in limine. This argument by appellees’ counsel that the timing of the filing of the complaint was somehow suggestive of appellant’s lack of confidence in his claims demonstrates that the trial court’s erroneous denial of the motion in limine was harmful. Accordingly, the judgment must be reversed and a new trial held.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Pope, Cooper, JJ., and Judge Arnold Shulman concur. Sognier, C. J., Beasley and Andrews, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent because the law does not require a new trial.

Division 2 of the majority opinion addresses the denial of appellant’s motion in limine to preclude as not pertinent defense counsel’s revealing to the jury that the suit was not filed until immediately prior to the running of the statute of limitation. Appellant argues that this is not relevant to liability inasmuch as the statute of limitation was not affirmatively pled as a defense, and since it was unavailable plaintiff was forced to defend against a false issue.

The issue, initiated by plaintiff, must be considered in the particular context of this case. At the beginning of trial, when the court heard argument on plaintiff’s written motion in limine, the plaintiff expanded his requests orally to seek the exclusion of additional matters. As to this matter, plaintiff’s counsel stated: “Your honor, we filed this case two years after the wreck and just before the statute ran. I’ve had that come up in opening statements before. That’s not pertinent to any issue.” Defense counsel responded that it was a pertinent issue but stated: “I may not bring it up in the opening statement but it may well come out. It may come out in the cross-examination and certainly goes to the credibility of witnesses.” The court denied the motion on this basis, plaintiff not having offered any specific authority supporting the argument that it was not material. Witness credibility, of course, is to be decided by the jury. OCGA § 24-9-80. Defendants did not mention the subject in their opening statement, which followed that of plaintiff.

Plaintiff, on the other hand, introduced the subject to the jury in his opening statement: “There’s also going to be some talk about, we’ve heard, about the fact that this suit was not filed until almost two years after the wreck. That’s my fault, partially and Turner’s, partially. If Turner went to one lawyer and then later on came to us and after he came to us we were busy and we fiddled around and it took a while to file the suit, it has nothing to do with this case because the evidence will be clear, immediately after this wreck happened Mr. Turner sought to find out what happened and did find out what happened.”

The fact was not evidenced during the course of the trial in cross-examination or otherwise. Thus, the mention of it by defendant in closing argument merely countered the explanation of a fact disclosed by plaintiff. Moreover, plaintiff raised no objection to this portion of defendant’s closing argument. Instead, in his own subsequent final closing argument, he brought up again the fact of when suit was filed.

Even assuming that plaintiff, by himself calling attention to and explaining the time delay in opening statement, did not open the door for the comments by defense counsel in closing argument, denying the motion and allowing defendants to pursue the matter if they chose to was not error.

Liability was hotly contested, the focus of which was “who ran the red light?” Both sides produced eyewitnesses with opposed versions of what transpired at the intersection. Defendants contended that the credibility of several of appellant’s eyewitnesses was affected by the length of time it had taken them to come forward and relate their recollections of what had occurred. The delay in filing suit arguably supported these contentions. See the reasoning expressed in the analogous case of McBride & Co. v. Macon Telegraph &c. Co., 102 Ga. 422, 425 (3) (30 SE 999) (1897). See also Adkins v. Flagg, 147 Ga. 136 (2a) (93 SE 92) (1917), in which it was held: “Counsel should have ample latitude to argue what has transpired in a case from its inception to its conclusion, and the conduct of the party or his counsel with respect to the case is the subject of legitimate comment, and the range of such comment is necessarily in the discretion of the trial judge; and unless it can be shown that such discretion has been abused and some positive injury done by the remarks of counsel, the discretion of the trial judge will not be controlled. [Cits.]”

Decided November 19, 1991

Reconsideration denied December 19, 1991

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Charles F. Overby, Ashenden & Boren, Thomas J. Ashenden, for appellants.

Carter & Ansley, Tommy T. Holland, Anthony J. McGinley, for appellees.

No reversible error is shown.

I am authorized to state that Chief Judge Sognier and Judge Andrews join in this dissent.