author: Ruffin, Judge.

text:
    A96A0682.
    RICE v. HUFF et al.
    (472 SE2d 140)
   Ruffin, Judge.

Sherry Rice sued Lamar Huff, Jr., individually and as an officer of Starship Enterprises of Atlanta. She claimed that while working for Starship on December 14, 1992, Huff falsely imprisoned her in his office for eight hours and attempted to sexually assault her. The trial court granted Huff summary judgment based on a release Rice signed. After examining the language of that release, we affirm the trial court’s decision.

Prior to bringing this action, Rice filed a workers’ compensation claim covering the December 14 incident, but the administrative law judge denied her benefits. Rather than appeal, she entered into a settlement with Starship through which she received $27,500 in exchange for the release in question. Rice released any further claim for workers’ compensation benefits and agreed not to appeal the denial of benefits. The release also stated: “In further consideration for the payment of said sum . . . SHERRY L. RICE[ ] does hereby release and forever discharge STARSHIP ENTERPRISES and COMPANION PROPERTY AND CASUALTY INSURANCE COMPANY, their successors, executors, administrators, agents, employees, servants, and assigns, all other persons, firms, or corporations liable, or who might be claimed to be liable under the workers’ compensation laws of Georgia, . . . from any and all claims, demands, damages, actions, causes of action or suits of whatsoever kind or nature and particularly with relation to or in consequence of the alleged injury sustained by [Rice] on or about 12/14/92.”

The standard for a grant of summary judgment is found in Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). The moving party must “demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Id. Rice, like many other appellants and appellees before her, erroneously cites pre-Law’s standards. “ ‘On appeals from grants of summary judgment, it is this court’s function to examine the record and determine whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains. Our review is de novo.’ [Cit.]” Stinson v. Lumpkin Lumber Co., 217 Ga. App. 880, 882 (1) (460 SE2d 846) (1995) (physical precedent only). Like other contracts, this release is interpreted by the court using the applicable rules of construction. Campos v. Williams, 217 Ga. App. 296, 298 (3) (457 SE2d 243) (1995).

By its unambiguous language, the release in question covers Rice’s allegations of intentional tort. “ ‘[WJhere the terms of a written [release] contract are clear and unambiguous, the court will look to the [release] contract alone to find the intention of the parties.’ [Cit.]” McDowell v. Lackey, 200 Ga. App. 506, 507 (2) (408 SE2d 481) (1991), rev’d on other grounds, 262 Ga. 185 (415 SE2d 902) (1992). This release covers “any and all claims, . . . causes of action or suits of whatsoever kind or nature ... in consequence of the alleged injury sustained by [Rice] on or about 12/14/92.” See Darby v. Mathis, 212 Ga. App. 444, 445 (1) (441 SE2d 905) (1994). “The fact that the scope of the [release] is broad does not make [it] ambiguous. . . .” Citadel Corp. v. Sun Chem. Corp., 212 Ga. App. 875, 876 (2) (443 SE2d 489) (1994).

Contrary to Rice’s argument, the principle of ejusdem generis does not apply. That principle limits the interpretation of broad language in a series, such as “all other people,” to the class of the defined terms preceding it, such as “employees, agents, and servants.” Rice seeks to turn the concept on its head and would have the general term “all other persons . . . who might be claimed to be liable under the workers’ compensation laws of Georgia” to limit the foregoing specific terms “employees” and “agents.” See generally Dept. of Ed. v. Kitchens, 193 Ga. App. 229, 231 (2) (387 SE2d 579) (1989).

While the release does refer to the workers’ compensation action, it does not limit itself to that claim or to those types of damages. See Aetna Cas. &c. Co. v. W G. Lothridge Contracting Co., 163 Ga. App. 731 (296 SE2d 83) (1982). Workers’ compensation benefits are released in one paragraph, and other claims are released in a separate paragraph which begins with the language, “In further consideration. . . .” If, as Rice contends, this paragraph also was intended to release workers’ compensation claims, this additional language would be superfluous. “However, the law requires that in interpreting a contract we ‘give a reasonable, lawful and effective meaning to all manifestations of intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect. [Cits.]’ [Cits.]” Whitmire v. Colwell, 159 Ga. App. 682, 683 (285 SE2d 28) (1981). This release covers the claims made in Rice’s suit.

2. Huff may claim the benefit of the release because, as an employee, agent, or servant of Starship, he is named in it. Although a release discharges only those named, a description will suffice so long as it “leaves no question of the identity of the party released.” Lackey v. McDowell, 262 Ga. at 186, n. 3. Huff presented affidavits showing he was an employee of Starship on the date of the incident Rice describes and on the date she signed the release. Rice produced no evidence to the contrary. Her suit itself alleges Huff is the “officer” of the corporation, and thereby its agent, who assaulted her on December 14, 1992. Because Rice has pointed to no evidence countering Huff’s showing that he falls under the definition of those persons covered by the release, and because we find no such evidence, the trial court properly granted Huff summary judgment. See Lau’s Corp., supra.

Decided May 30, 1996.

Hazleton & Sullivan, William L. Hazleton, for appellant.

Wood & Perry, Jere F. Wood, Jeffrey C. Hamling, for appellees.

3. In an enumeration of error not addressed by our holding above, Rice contends the trial court erred by finding Huff to be covered by the policy of workers’ compensation insurance issued to Star-ship by Companion Property and Casualty. The record reveals no such finding. If the trial court so held, that finding would be immaterial to the issue of whether the unambiguous release in question discharges Huff. See Lackey, 200 Ga. App. at 507 (2).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A96A0730.
    NOBLES et al. v. PREVOST.
    (472 SE2d 134)
   McMurray, Presiding Judge.

Plaintiffs Michael Nobles and Lisa Nobles filed this medical malpractice action in their individual capacities, and on behalf of their minor child Ryan Nobles, who was alleged to have been injured by the negligence of defendant Prevost. The complaint alleged that plaintiffs “have been forced to file their claim within ten (10) days of the running of the statute of limitations, and are therefore unable to attach an expert’s affidavit to this complaint at this time. Such affidavit will be attached by amendment pursuant to applicable law.” Plaintiffs amended their complaint ten days after the original filing of their complaint. While the amended complaint stated that the affidavit of plaintiffs’ expert was attached, whether this statement was correct at the time the amended complaint was filed with the clerk of superior court has become the controlling issue in the case sub judice.

Defendant answered and moved to dismiss or in the alternative for summary judgment. The superior court entered an order granting defendant’s motion to dismiss and also defendant’s motion for summary judgment. The superior court order stated a number of alternative grounds, but we need consider only one.

Decided May 30, 1996.

Melnick, Moore & Elliott, David R. Moore, for appellants.

Jones, Cork & Miller, Thomas C. Alexander, Sharon H. Reeves, for appellee.

An alternative basis for the grant of defendant’s motions was a finding that the affidavit requirement of OCGA § 9-11-9.1 had never been met because no affidavit had been filed. The record of the case sub judice as originally docketed in this Court contains plaintiffs’ amended complaint but does not contain an affidavit of plaintiffs’ expert. Two weeks after the docketing of this appeal, plaintiffs filed a motion in the superior court requesting that the expert’s affidavit be made a part of the record. Plaintiffs’ motion to add the expert’s affidavit was denied by the superior court. Held:

First, we note that even after the case was docketed in this Court, the superior court retained jurisdiction to add additional record and is the final arbiter as to any differences concerning preparation of the record. Smith v. State, 213 Ga. App. 536, 537 (3) (445 SE2d 341). The superior court’s resolution of any conflicts in the evidence on plaintiffs’ motion to supplement the record is dispositive and not subject to our review. Id. at 537 (2).

We add that OCGA § 5-6-41 (f) is not an instrument for supplying fatal deficiencies after the fact. Nixon v. Rosenthal, 214 Ga. App. 446, 447 (3) (448 SE2d 45). Nor are OCGA § 9-11-9.1 (e) and (f) applicable to the circumstances in the case sub judice.

It follows that we must affirm the grant of defendant’s motions to dismiss and for summary judgment since the evidence of record fails to show that an expert affidavit as required by OCGA § 9-11-9.1 was filed prior to the grant of summary judgment in favor of defendant. ABE Engineering v. Griffin, Cochran & Marshall, 212 Ga. App. 586 (443 SE2d 1). The judgment of the superior court is affirmed.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0522.
    SIKES v. THE STATE.
    (472 SE2d 101)
   McMurray, Presiding Judge.

Hershel Leonard Sikes, who was found not guilty of theft by shoplifting by reason of insanity, appeals from an order denying a petition for his release from involuntary commitment to the Georgia Department of Human Resources (“DHR”). In so ruling, the trial court recognized that Sikes suffers with a permanent mental disability which, without treatment, manifests the sort of behavior which led to Sikes’ insanity plea and determined that “the safety net and compulsion of a court order [is necessary] to mandate [the treatment Sikes requires].” We affirm because the trial court’s ruling is authorized by the evidence as well as OCGA § 17-7-131 (e) (5) (B).

On December 3, 1992, the trial court accepted Hershel Leonard Sikes’ plea of not guilty of shoplifting by reason of insanity, finding that Sikes’ criminal behavior was the result of organic brain damage which occurred during surgery to remove a “brain tumor . . . from the frontal area of his brain in 1979.” The trial court ordered Sikes to “remain in the custody of [DHR] to continue his involuntary inpatient treatment for such amount of time recommended by [DHR].” Sikes was thereafter confined and treated at Georgia Mental Health Institute (“GMHI”).

On June 2, 1994, the trial court entered an order releasing Sikes from GMHI, conditioned upon restrictions prescribed in a comprehensive treatment plan developed by health care professionals at GMHI. This treatment plan resulted in Sikes’ placement in a personal care home and a “weekday” treatment program at a county health care facility. In a letter dated November 4, 1994, a GMHI “Staff Psychiatrist” and a GMHI “Forensic Services Coordinator” notified the trial court that “Mr. Sikes was sent back to GMHI on September 12, 1994 after he had been aggressive with a peer in the day treatment program (he squeezed her arm hard after some provocation) and had an incident in a store (he threw a plastic bottle which bounced and hit the clerk).” This letter further provides: “Upon his return to GMHI, [Sikes] exhibited the same level of stable behavior observed before he left on conditional release. He was granted grounds privileges but left the hospital without permission on September 16 and was returned here the following day. He had gone to Underground Atlanta and told someone he was on a pass from GMHI. They were suspicious and called the hospital leading to his return. Given the level of bráin damage that occurred as the result of Mr. Sikes’ brain tumor many years ago, some degree of impulsive behavior is to be expected. It is our opinion that he can safely be returned to conditional release status, in which he is living in a personal care home and attending day treatment. However, Mr. Sikes’ recent AWOL is behavior not previously presented to the court. We are therefore requesting your authorization to return him to conditional release. If you are in agreement with this plan, please indicate by checking the appropriate line below and signing.”

In a letter dated August 10, 1995, the GMHI health care professionals, who reported Sikes’ “aggressive” behavior and impulsive excursion to “Underground Atlanta,” urged the trial court to release Sikes from commitment to DHR. This letter provides as follows: “This letter constitutes a petition for the full release of Hershel Sikes. . . . Mr. Sikes has done quite well on conditional release. He required rehospitalization on one occasion, (September, 1994) when he became angry and combative at the personal care home. Although he briefly went AWOL, he exhibited no aggressive behavior while in the hospital and was returned to the same out-patient program. He attends the day treatment program five days per week and takes seizure medication. He is not receiving any psychiatric medications and has been free of threatening, violent or criminal behavior. ... It is our opinion that Mr. Sikes no longer meets either the inpatient or outpatient commitment criteria of OCGA 37-3 or 37-4. We therefore request that Mr. Sikes be fully released. He will continue in the same treatment program after release.”

In opposition to the petition for Sikes’ release from commitment to DHR, the State’s attorney addressed the following letter to the trial court: “GMHI proposes that Mr. Sikes be completely released from their custody. They state he will ‘continue in the same treatment program after release.’ I must state that I am very concerned by the GMHI letter. Who will make sure that Mr. Sikes continues in his treatment? Why can’t GMHI maintain custody of Mr. Sikes to ensure that he remains in the personal care home and receives his outpatient treatment? Why is it necessary to release Mr. Sikes from GMHI custody? . . . Until I know the answers to these questions, my position will be to object to GMHI’s request and suggest a hearing is in order. I do not mean any disrespect to GMHI and will perhaps agree completely with their recommendations once these issues are addressed. Lacking any information which indicates how Mr. Sikes will be monitored if fully released, other than us having to go through this procedure again if there are further problems, I must respectfully suggest that the Court deny the request to release this defendant.”

The evidence adduced at a hearing on the petition for Sikes’ release from DHR reveals that Sikes continues to suffer with the mental disability which led to his 1992 insanity plea; that Sikes “had several admissions [to health care facilities] and a number of arrests” before his 1992 insanity plea; that these difficulties were the result of inadequate treatment of Sikes’ mental disorder; that Sikes did not receive appropriate or stable care and treatment for his mental disability until after his commitment to DHR and that Sikes’ mental deficiency, if untreated, will likely result in the sort of criminal behavior that led to his 1992 insanity plea. The trial court also heard proof that Sikes has been enthusiastic, happy and productive under the court-mandated treatment plan; that the structure and care provided under this plan is the best means for combating the effects of Sikes’ mental disability; that outbursts of violence and aggression by Sikes while on conditional release from hospitalization resulted in Sikes’ return to GMHI in September 1994; that Sikes wandered away from GMHI during this period of hospitalization after being granted “ground privileges” at the hospital; that GMHI was compelled to return Sikes to the hospital after this episode (which involved a trip to Atlanta, Georgia) and that Sikes was unaware, until the hearing on the petition for his release, that “he was under mandate of court[, thinking instead that] he came to [DHR’s treatment] program on his own.” The trial court later entered an order denying the petition to release Sikes from commitment to DHR, concluding that “the safety net and compulsion of a court order [is necessary] to mandate [the treatment Sikes requires].” This appeal followed. Held:

1. Sikes first contends the trial court erred in denying his application for release from commitment to DHR, arguing that he successfully completed all requirements under the conditional release plan and that, as a result, OCGA § 17-7-131 (e) (5) (B) requires his discharge from commitment to DHR. This contention is without merit.

OCGA § 17-7-131 (e) (5) (B) provides that, “[i]f the defendant successfully completes all requirements [under an involuntary treatment plan] during this period of conditional release, the court shall discharge the individual from commitment at the end of that period.” This Code subsection further provides, however, that “[t]he court may require the individual to participate in outpatient treatment or any other services or programs authorized by Chapter 3, 4, or 7 of Title 37.” While these phrases may appear conflicting when read in isolation and out of context of the statutory scheme, harmony is found when OCGA § 17-7-131 (e) (5) (B) is read in its entirety and examined with an eye toward the purpose of commitment of the criminally insane, i.e., “ ‘to treat the individual’s mental illness and protect him and society from his potential dangerousness.’ Jones v. United States, 463 U. S. 354, 368 (103 SC 3043, 77 LE2d 694) (1983).” O’Neal v. State, 185 Ga. App. 838, 839 (365 SE2d 894). See Houston v. Lowes of Savannah, 235 Ga. 201, 203 (219 SE2d 115). From this perspective, we find that OCGA § 17-7-131 (e) (5) (B) provides trial courts with authority for extending involuntary outpatient treatment in any case where a defendant appears to require further “outpatient treatment or any other services or programs authorized by Chapter 3, 4, or 7 of Title 37.” OCGA § 17-7-131 (e) (5) (B). The only limitation this subsection appears to impose is requiring restrictive hospitalization where (according to the trial court) a defendant has successfully responded to outpatient treatment. See OCGA § 37-3-1 (12.2). Consequently, since it is undisputed that the denial of Sikes’ petition for release does not require treatment of Sikes in a hospital setting and since there is no question that the mental disorder which is the basis of Sikes’ insanity plea requires highly structured outpatient treatment, the trial court did not err in denying Sikes’ petition for release from commitment to DHR.

2. Sikes challenges the trial court’s denial of his petition for release, arguing that he is not subject to involuntary “outpatient treatment” under Chapter 3 of Title 37 because his mental impairment is the result of a “traumatic brain injury” and OCGA § 37-3-1 (16.1) excludes “outpatient treatment” for mental disorders that are the result of a “traumatic brain injury.” This assertion is without merit. Sikes was adjudicated mentally ill as defined in OCGA § 17-7-131 (a) (2), not as defined in OCGA § 37-3-1 (11). And as a consequence, the “traumatic brain injury” exclusion in OCGA § 37-3-1 (16.1) does not preclude Sikes’ “involuntary treatment” for the mental impairment which is the basis of his insanity plea. To hold otherwise not only ignores the statutory scheme for treating the criminally insane, but is contrary to the goal of protecting the criminally insane “ ‘and society from [such person’s] potential dangerousness.’ Jones v. United States, 463 U. S. 354, 368[, supra].” O’Neal v. State, 185 Ga. App. 838, 839, supra.

3. Sikes challenges the trial court’s finding that “the safety net and compulsion of a court order [is necessary] to mandate” the care and treatment prescribed for controlling his mental disorder, arguing that he has wilfully complied with the guidelines set by GMHI’s outpatient treatment plan.

Even though there is proof that Sikes performs well under the guidance and structure of outpatient treatment, it is undisputed that Sikes continues to suffer from a mental disorder which subjects him to outbursts of violence, criminal acts and aimless wanderings; that Sikes strayed away from GMHI when he was given “ground privileges” at the hospital on September 16,1994, and that Sikes’ commitment to DHR resulted in his return to GMHI after this episode of noncompliance. These circumstances, and the presumption of insanity which attached when Sikes was adjudicated not guilty of shoplifting by reason of insanity, authorize the trial court’s findings, by a preponderance of the evidence, that Sikes suffers with a permanent mental disability which, without treatment, manifests the sort of behavior which led to Sikes plea of insanity and that “the safety net and compulsion of a court order [is necessary] to mandate [the treatment Sikes requires].” See Nagel v. State, 262 Ga. 888, 892 (427 SE2d 490). Accordingly, the trial court did not err in denying the petition for Sikes’ release from involuntary commitment to DHR.

Decided May 14, 1996

Reconsideration denied May 31, 1996

Marcus & Cullen, Frances E. Cullen, Jill L. Anderson, James C. Bonner, Jr., Debra J. Blum, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

       Neither the GMHI “Staff Psychiatrist” nor the GMHI “Forensic Services Coordinator” who endorsed this letter has authority to petition for Sikes’ release from commitment to DHR. OCGA § 17-7-131 (f) (1) provides that such petitions may be made only by the defendant or the superintendent of the state hospital in which the defendant is detained. Nevertheless, the trial court’s authority to consider the health care professionals’ request for Sikes’ release from commitment to DHR is not dispositive of the case sub judice since Sikes’ court-appointed attorney endorsed the request for Sikes’ release and thereby ratified the GMHI health care professionals’ efforts to relinquish DHR’s responsibility for Sikes.

       Chapters 3, 4 and 7 of Title 37 authorize services and programs for examination, hospitalization, habilitation or treatment for mentally ill persons or for any person for whom such treatment is sought. See OCGA § 37-3-1 (13).


author: Judge Harold R. Banke.

text:
    A96A0532.
    NICHOLS v. THE STATE.
    (473 SE2d 491)
   Judge Harold R. Banke.

A jury convicted Gaines Frank Nichols of rape, aggravated sodomy, and incest. On appeal, he enumerates fifteen errors, most of which attack evidentiary rulings on similar transaction testimony by two of Nichols’ daughters.

The State’s evidence from Nichols’ trial showed that Nichols sexually assaulted his teenage stepdaughter from his third marriage on four occasions and once orally sodomized her. The incidents occurred intermittently over several months. Nichols always consumed alcohol before the assaults and often insisted that the victim accompany him on drives down deserted roads where he committed the offenses. The victim testified that she did not report the assaults immediately because she feared Nichols would harm her mother and sister, having witnessed Nichols strike her mother and put a gun to her head. Several days after the last assault, the victim told her mother, who called the police and took the victim to be physically examined. Held:

1. We reject Nichols’ argument that there was a fatal variance between the indictment on the incest charge, which stated that the victim was his daughter, and the evidence, which showed she was his stepdaughter.

Not every variance between the allegations in an indictment and the evidence presented at trial is fatal. Battles v. State, 262 Ga. 415, 417 (5) (420 SE2d 303) (1992). “The general rule that allegations and proof must correspond is based upon the requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense. [Cit.]” Talbot v. State, 198 Ga. App. 636, 637 (402 SE2d 366) (1991). Because the indictment correctly named Nichols’ stepdaughter as the victim and the incest statute prohibits sexual intercourse between father and stepdaughter, we find Nichols was sufficiently informed of the charges. OCGA § 16-6-22 (a) (1). By its nature, the technical variance at issue could have no effect on future prosecutions for the same offense. Accordingly, the variance was not fatal.

2. The trial court’s refusal to strike a juror for cause because he admitted to feeling biased against the accused due to general media coverage of sexual violence and child abuse was not reversible error. The juror subsequently agreed that he could decide the case based on the evidence, but then expressed doubts about the effect that “heartfelt testimony” would have upon him.

The fact that a potential juror may have some doubt about his impartiality or complete freedom from all bias does not demand as a matter of law that the juror be excused for cause. Greenway v. State, 207 Ga. App. 511, 513 (3) (428 SE2d 415) (1993). Because the record does not demonstrate that the juror’s opinion was “so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence,” we cannot say that the trial court abused its discretion in declining to strike the juror for cause. (Citations and punctuation omitted.) Id.

3. We reject Nichols’ argument that the similar transaction testimony given by two daughters from his former marriages was improperly admitted. Both daughters testified that Nichols had repeatedly sexually assaulted them as teenagers, 24 and 27 years previously. They both testified that the assaults occurred after Nichols had consumed alcohol, often after he had driven them to a deserted road, and he had threatened to hurt their mothers if they told. The record shows that Nichols thoroughly cross-examined these witnesses about the time lapse and their motives for testifying against their father.

The rules regarding the use of similar transaction evidence are construed most liberally in cases involving sexual offenses. Wells v. State, 208 Ga. App. 298, 303 (2) (b) (430 SE2d 611) (1993). The lapse of time between the charged offense and the similar transaction must be considered when deciding whether to admit evidence of independent crimes; however, particularly in cases involving the sexual exploitation of young family members over generations, the remoteness in time is not wholly determinative, but goes to weight and credibility. Bryson v. State, 210 Ga. App. 642, 643 (437 SE2d 352) (1993); Hall v. State, 204 Ga. App. 469 (1), 471 (419 SE2d 503) (1992). Under the circumstances of this case, we find that the time lapse did not render the evidence inadmissible. Compare Gilstrap v. State, 261 Ga. 798, 799 (410 SE2d 423) (1991) (evidence inadmissible after 31-year lapse).

We also reject Nichols’ argument that the trial court improperly placed his character into issue by allowing the similar transaction witnesses to testify that he beat and threatened to kill their mothers. The record shows that this evidence was admitted to show method of operation and course of conduct, i.e., Nichols’ method for ensuring that his daughters and the victim did not report the sexual assaults. See Williams v. State, 251 Ga. 749, 755 (4) (312 SE2d 40) (1983). This evidence is therefore substantially relevant and admissible for a permissible purpose rather than to show bad character. Id.

Further, the witnesses’ alleged retaliatory motives for testifying would not bar their testimony. Such motives, which Nichols thoroughly explored on cross-examination, are for the jury to weigh in determining the witnesses’ credibility. See Self v. State, 208 Ga. App. 447, 448 (3) (431 SE2d 126) (1993); and Rouse v. State, 204 Ga. App. 845 (1), 846 (420 SE2d 779) (1992).

4. The trial court did not commit reversible error by granting the State’s motion in limine to restrict the cross-examination of one of the similar transaction witnesses. Nichols was not permitted to ask one of his daughters whether, in denying any sexual acts with him, she had stated at age 13 that she would rather sleep with the black man over the hill than with her father. Only the racial reference was excluded. Inasmuch as the issue of race was irrelevant to this case, the trial court did not abuse its discretion in prohibiting the reference. Hood v. State, 216 Ga. App. 106, 108 (4) (453 SE2d 128) (1995); see Kornegay v. State, 174 Ga. App. 279, 282 (329 SE2d 601) (1985).

Nor did the trial court abuse its discretion in restricting Nichols’ cross-examination of this daughter regarding his family’s previous lifestyle. Whether this daughter was permitted to have friends visit when she lived with him over 20 years earlier was irrelevant and beyond the scope of the direct examination. Hood, 216 Ga. App. at 108 (4); Spivey v. State, 165 Ga. App. 820, 821 (2) (302 SE2d 729) (1983).

We further reject Nichols’ argument that the trial court improperly restricted his cross-examination of this daughter by directing him to proffer any questions about whether she was a troublemaker to assure that the foundation was sufficient. Nichols failed to demonstrate both error and harm from this ruling. Durham v. State, 129 Ga. App. 5, 6 (3) (198 SE2d 387) (1973).

5. The trial court did not err in prohibiting Nichols from asking the victim’s mother whether she believed her daughter’s statements about the offenses or could tell her daughter was lying from her body language. Determining a witness’s credibility is exclusively within the jury’s province. OCGA § 24-9-80; Nichols v. State, 177 Ga. App. 689, 692 (2) (340 SE2d 654) (1986). Because Nichols in effect sought to solicit the mother’s opinion about the victim’s testimony on the ultimate issue in this case, granting the State’s motion in limine to prevent the inquiry was not error. OCGA § 24-9-65; compare Yebra v. State, 206 Ga. App. 12, 14 (3) (424 SE2d 318) (1992).

6. The State’s failure to preserve a rape kit purportedly containing evidence from the physical examination of the victim did not deprive Nichols of due process. Assuming that pathology tests were run on the evidence from the rape kit and they showed the absence of sperm and Nichols’ pubic hair, the facts that the assaults had commenced several months earlier and several days had passed between the final sexual assault and the examination rendered the exculpatory value of this evidence negligible. Walker v. State, 264 Ga. 676, 680 (3) (449 SE2d 845) (1994). In the absence of evidence that the undisclosed evidence was material and that the State acted in bad faith in failing to preserve the evidence, we reject Nichols’ assertion that his constitutional rights were violated. Id. Furthermore, in light of the inculpatory evidence presented and the time span between the assault and the examination, we find no reasonable probability that the admission of the rape kit would have altered the trial’s outcome. Cato v. State, 195 Ga. App. 619 (1), 620 (394 SE2d 413) (1990).

7. The trial court did not err in permitting the State to recall the victim’s mother in order to lay a foundation for impeaching her with prior inconsistent statements about Nichols’ physical ábuse of her. “[T]he witness may be recalled at any time” to lay a foundation for impeachment. OCGA § 24-9-83.

8. In closing, the State argued that Nichols would have been willing to “play house with” his 14-year-old natural daughter, who testified that shortly after Nichols’ arrest he asked her to run away and cook and clean for him. Pretermitting the propriety of this argument, the record shows that when the State made this statement, Nichols failed to object, thus failing to preserve the issue for review. Jacobs v. State, 207 Ga. App. 714, 717 (4) (429 SE2d 256) (1993).

Decided May 10, 1996

Reconsideration denied June 3, 1996

Tony H. Hight, for appellant.

Lewis R. Slaton, District Attorney, William F. Riley, Jr., Leonora Grant, Assistant District Attorneys, for appellee.

Because the remaining enumerations are not supported by argument or citation of authority, they are deemed waived. Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       The jury could not reach a verdict in Nichols’ initial trial.

       The victim’s mother testified that a detective gave them a rape kit to take to the hospital and a doctor performed the procedures it required and stated that it would be sent to a laboratory.


text:
    A96A0593.
    APAC-GEORGIA, INC. v. DEPARTMENT OF TRANSPORTATION.
    (472 SE2d 97)
   Ruffin, Judge.

This complex suit over construction of Atlanta’s downtown connector comes before us a second time. In its first appearance, Dept. of Transp. v. APAC-Georgia, 217 Ga. App. 103 (456 SE2d 668) (1995), we held that special contract specification 105.07 imposed on the Department of Transportation (“DOT”) a duty to coordinate and control the work of its prime contractors, which included APAC-Georgia (“APAC”), and that material questions of fact remained as to whether DOT had breached that duty. Id. at 105 (1).

On remand the trial court granted DOT partial summary judgment, holding that APAC could claim no damages for delays on numerous specific components of its work, including designated walls and ramps. Regarding these items, the trial court determined that APAC had not complied with two sections of the contract requiring written notice of delay (§ 108.07) and of claims for additional compensation (§ 105.13), and it considered such notice a condition precedent to APAC’s claims. The trial court also rejected any claims APAC had for delay damages resulting from design errors and omissions.

We reverse the trial court’s rulings on the issue of notice. Section 105.13 is inapplicable to this case, and a jury should decide whether APAC complied with § 108.07 or, in the alternative, whether DOT waived that notice requirement. Although the trial court correctly rejected any claims resulting from design errors and omissions, we remand that ruling with instruction to clarify the scope of damages which APAC may seek.

1. The trial court erroneously found APAC’s compliance with provision 105.13 to be a condition precedent to the contractor’s claims for delay damages. That provision reads in relevant part: “Claims for Adjustments and Disputes: In any case where the Contractor believes that extra compensation is due him, the Contractor shall notify the Engineer in writing of his intention to claim such extra compensation before beginning The Work on which said claim is based. If such notification is not given, in writing, before such work is begun, then the Contractor hereby agrees that no extra compensation is due and waives all rights to claim extra compensation for said Work .... If the claim ... is found to be just, it will be paid as Extra Work, as provided in 109.05 for Force Account Work.” (Emphasis supplied.) Section 109.05 describes the procedures for payment of materials, labor, and some overhead used in additional work and requires written authorization for this extra work before the Contractor begins it.

This particular contract provision does not expressly apply to damages for delay. Its language requires a contractor to give notice that he will seek extra compensation for extra work before beginning that work. APAC’s claim stems from its inability to do the work called for in the contract because of DOT’s acts and omissions. This provision mirrors a specification found in a manual entitled “Guide Specifications for Highway Construction,” published by the American Association of State Highway and Transportation Officials. An article discussing this standard provision makes clear it is intended to address compensation for unforeseen “change orders” in highway contracts, not damages for delay. Vance, 3 Selected Studies in Highway Law, “Enforceability of the Requirement of Notice in Highway Construction Contracts,” 1524-N1.

As urged by DOT, APAC’s failure to comply with this clause would cause APAC to forfeit any claim for damages caused by DOT’s own breach of its duty to coordinate this project. But “[t]he settled public policy of this state is that forfeitures are not favored. While forfeitures are not unlawful, the law does not favor them, and all ambiguities in a contract are to be resolved against their existence. [Cit.]” (Punctuation omitted.) A. L. Williams & Assoc. v. Faircloth, 259 Ga. 767 (1) (b), 768 (386 SE2d 151) (1989). An alternate legitimate construction, limiting this requirement of notice to claims for extra work, prevents the forfeiture. Roland Well Drilling v. Murawski, 193 Ga. App. 38, 40 (386 SE2d 872) (1989).

2. The notice requirement of provision 108.07 does apply to APAC’s claims for delay damages. Holloway Constr. Co. v. Dept. of Transp., 218 Ga. App. 243, 247 (8) (461 SE2d 257) (1995). The trial court erred, however, in finding as a matter of law that APAC failed to comply with this provision, which reads in part: “E. Extension of Contract Time:... If the normal progress of The Work is delayed for reasons beyond his control, the Contractor shall, with (sic) fifteen days after the start of such a delay, file a written request to the Engineer for an extension of time setting forth therein the reasons and providing complete documentation for the delay which he believes will justify the granting of his request. ... If the Engineer finds that The Work was delayed because of conditions beyond the control and without the fault of the Contractor, he may extend the time for completion in such amount as the conditions justify.”

In support of its motion on this issue, DOT personnel averred they had received no request for an extension of time on 90 specific items of work, including such items as “Wall Q,” “Tie-back Wall 15C,” and “Mainline Cleveland to Fair including Lakewood Interchange.” In response, APAC produced over 50 letters between its personnel and DOT supervisory personnel, written between 1984 and 1988, giving notice of delays and the need for extensions.

Although these letters may contain no specific mention of the 90 listed items, many of the letters indicated that the specified delays would cause “domino-effect” delays on the entire project. In a letter dated March 25, 1985, for example, APAC requested an extension of time on the entire project and informed DOT that current delays would directly affect other intermediate completion dates and the final completion date. DOT acknowledged this letter and responded, “[w]hen all problems are resolved in this area . . . please re-evaluate your delay and submit your request specif[y]ing what delays you had, and any time extension or other compensation you feel is justified by these delays.”

APAC also presented the affidavit of its president, who stated that APAC wrote DOT monthly with updates showing every delay to the project and the amount of delay. “It is undisputed that APAC received time extensions from DOT through the actual completion date, and no contractual liquidated damages were charged to APAC for failure to complete the project on time.” APAC, 217 Ga. App. at 104. This evidence creates material questions of fact both as to whether APAC complied with the notice provision and whether DOT waived the requirement.

Notice requirements must be reasonably construed. Batson-Cook Co. v. Loden & Co., 129 Ga. App. 376, 378 (1) (199 SE2d 591) (1973). The key issue is whether DOT had actual notice of the delays for which APAC seeks damages. State Hwy. Dept. v. Hall Paving Co., 127 Ga. App. 625, 629 (194 SE2d 493) (1972). The evidence APAC presented appears to be “in the spirit” of the contract provision, presenting the factfinder with a question of whether that notice was sufficient to reasonably comply with § 108.07E. Id. at 628-629.

These facts also present a jury issue as to whether DOT, through its conduct, waived the notice provisions. Biltmore Constr. Co. v. Tri- State Elec. Contractors, 137 Ga. App. 504, 508 (1) (224 SE2d 487) (1976). “It is . . . well recognized that a party to a contract may waive contractual provisions for his benefit. [Cits.]” (Punctuation omitted.) Cho v. South Atlanta Assoc., 200 Ga. App. 737, 739 (2) (409 SE2d 674) (1991). “ ‘Courts will readily seize upon any fact or circumstance growing out of the conduct of the parties, tending to show a waiver of strict compliance, and will seek to avoid the forfeiture and to leave the actual merits of the case open to investigation.’ [Cit.]” Hall Paving, supra at 629. A jury may determine that DOT, by granting the extensions without request, by assessing no liquidated damages despite APAC’s alleged failure to request extensions, and by sending acknowledgment letters such as the one noted above, waived any right it had to insist on APAC’s strict compliance with § 108.07E. See Marathon Oil Co. v. Hollis, 167 Ga. App. 48, 50 (1) (D) (305 SE2d 864) (1983); Hall Paving, supra; State Hwy. Dept. v. Hewitt Contracting Co., 115 Ga. App. 606, 609 (3) (155 SE2d 422) (1967); OCGA § 13-4-4.

3. APAC also appeals the trial court’s order granting the DOT summary judgment on “damages resulting from design or plan errors and omissions.” Because this ruling has created some confusion, we take the opportunity to appropriately clarify its scope.

DOT argues, and the trial court properly concluded, that under provisions 102.05 and 104.03 of the contract, APAC had an independent duty to examine the original plans and DOT had the right to change the plans. Although APAC could claim additional compensation for extra work necessitated by plan changes, DOT bore no responsibility to pay damages to APAC based on errors in or changes made to the original plans. See State Hwy. Dept. v. Hewitt Contracting Co., 113 Ga. App. 685, 690 (1) (149 SE2d 499) (1966). “In the absence of a contractual duty, there can be no breach of contract.” Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821 (1) (426 SE2d 905) (1992) (no guarantee as to timeliness of other contractors’ work). That limitation does not, however, prevent APAC from claiming damages associated with any breach of the DOT’s duty to coordinate either design changes or correction of design errors.

The “duty to coordinate” means the duty to coordinate worksite activities among prime contractors to ensure timely progress. It is basically a duty to use reasonable measures to ensure all contractors cooperate to meet scheduling goals. See Goldberg, 28 Emory L. J. 377, 386 (1979), “The Owner’s Duty to Coordinate Multi-Prime Construction Contractors, A Condition of Cooperation.” “The contracting authority has the duty to invoke its contractual rights to compel cooperation among contractors. Abutting contractors [such as APAC] enter into contracts . . . with the expectation that [the DOT will exercise] supervisory authority ... to insure cooperation. [Cits.]” Shea-S&M Ball v. Massman-Kiewit-Early, 606 F2d 1245, 1251 (D.C.Cir. 1979); see also Paccon, Inc. v. United States, 399 F2d 162, 170 (Ct. Cl. 1968) (once owner notified of problem, owner must “direct or require the necessary cooperation from the contractor whose activities were hurting the plaintiff”). Because this duty arises from the owner’s duty to allow the contractor access to the worksite, Goldberg, supra at 379, it is logically limited to coordinating worksite activities.

Decided May 13, 1996

Reconsiderations denied June 3, 1996

Smith, Currie & Hancock, Robert B. Ansley, Jr., Fredric W. Stearns, Joseph P. Henner, Frederick L. Wright II, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, Lawson, Davis & Pickren, G. Thomas Davis, Alison H. Price, Greenfield, Bost & Kliros, John W. Greenfield, Sutherland, Asbill & Brennan, William R. Wildman, for appellee.

Although DOT had a duty to coordinate the work of its prime contractors, that duty did not create any warranty as to the quality of those contractors’ work. But when design errors or alterations made changes in the project necessary, DOT’s duty to coordinate those changes took effect. As soon as contractors brought problems associated with design changes to DOT’s attention, DOT had to use reasonable efforts to compel timely resolution of those problems to ensure that other contractors’ work would not be unreasonably delayed. Thus, to the extent APAC seeks damages for delays caused by the defective plans and designs themselves, or for delays necessitated simply by project alterations, those claims are barred. But if APAC can show that DOT unreasonably failed to coordinate the correction of problems associated with design changes, APAC may recover damages for delay resulting from DOT’s failure.

Judgment affirmed in part, reversed in part, and remanded with instruction.

McMurray, P. J., and Johnson, J., concur.

       This contract contained a provision expressly placing on DOT the duty to coordinate, but it also contained the standard “no damages for delay” clause discussed in Holloway Constr. Co., 218 Ga. App. at 244 (1), and Dept. of Transp. v. Fru-Con Constr. Corp., 207 Ga. App. 180, 181 (427 SE2d 513) (1993). Because no express provision overrode the “no damages” clause, APAC cannot claim delay damages stemming from a source other than DOT’s breach of its duty to coordinate. See Holloway, supra.


author: Beasley, Chief Judge. Blackburn, Judge,

text:
    A96A0850. A96A0852, A96A0853. A96A0854, A96A0855. A96A0856, A96A0857.
    COTTON et al. v. MED-COR HEALTH INFORMATION SOLUTIONS, INC. SMITH et al. v. PMSI, L. P.; and vice versa. YARBROUGH et al. v. PMSI, L. P.; and vice versa. LAWRENCE et al. v. SMART PROFESSIONAL COPY CORPORATION; and vice versa.
    (472 SE2d 92)
   Beasley, Chief Judge.

Plaintiffs were patients at various Atlanta area hospitals. Through their attorney or directly, they requested copies of their medical records from the hospitals. Defendants are corporations engaged in the business of providing photocopying and related services for hospitals. They had business relationships with the hospitals under which they were given access to patients’ records in order to provide copies of the records to authorized persons requesting them. Defendants did so for plaintiffs and submitted invoices to them imposing charges ranging from $1.04 to $7.60 per page.

After paying the invoices, plaintiffs brought these class action complaints, asserting that the charges were imposed in violation of the Health Records Act in that they exceeded the statutory limit of the reasonable costs of copying and mailing the records. OCGA § 31-33-3 (a). Both individually and on behalf of the proposed class, plaintiffs sought partial refunds under theories of breach of statutory duty, unjust enrichment/restitution, and breach of implied contract. They also sought injunctive relief.

Defendants filed motions to dismiss. They argued, among other things, that the Health Records Act does not impose any duty on them and that any recovery by plaintiffs is barred by the voluntary payment doctrine. In an effort to avoid application of this doctrine, plaintiffs amended their complaints by adding allegations that defendants practiced an artifice on them and that they made the payments as a result of misplaced confidence, mistake, and/or neglect.

The cases were consolidated and, after hearing, the trial court accepted defendants’ arguments and granted the motions. The court did find, however, that their charges for copying and mailing plaintiffs’ medical records were unreasonable and thus excessive.

Appeals were taken to the Supreme Court of Georgia and transferred to this Court pursuant to order stating that the equity issues were ancillary to the legal issues and that the constitutionality issues involved “the construction of well-settled principles of law.”

In Case Nos. A96A0850, A96A0852, A96A0854, and A96A0856, plaintiffs appealed the dismissal of their complaints. In Case Nos. A96A0851, A96A0853, A96A0855, and A96A0857, defendants cross-appealed the court’s finding that the charges were excessive. We dismissed the cross-appeal in Case No. A96A0851 because of the defendant’s failure to file its enumeration of errors and brief in a timely manner. The other cases are consolidated for decision.

In Division 1, we conclude that the court did err in holding that the Health Records Acts does not apply to the defendants. In Division 2, we hold that the trial court did not err in dismissing plaintiffs’ complaints under the voluntary-payment doctrine. The remaining issues in the main appeals are moot, as are the cross-appeals, which are dismissed.

1. In the order appealed from, the trial court determined on the basis of the pleadings that plaintiffs’ complaints are subject to dismissal for failure to state a claim upon which relief can be granted. See OCGA § 9-11-12 (b) (6); Yates v. Trust Co. Bank &c., 212 Ga. App. 438 (442 SE2d 293) (1994).

“[W]hen the sufficiency of a complaint is questioned, the pleadings must be construed in the light most favorable to the plaintiff. . . . But ... a complaint will be dismissed where no claim is stated, or where the facts alleged show that plaintiff cannot recover. [Cits.]” Massey v. Perkerson, 129 Ga. App. 895, 896 (1, 2) (201 SE2d 830) (1973). “ ‘ “For the purposes of the (motion for judgment on the pleadings), all well-pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not admitted. Judgment on the pleadings may be granted only if, on the facts so admitted, the moving party is clearly entitled to judgment.” . . . (Cits.)’ [Cit.]” Yates, supra.

The Health Records Act governs the furnishing of the record of a patient by a “provider.” OCGA § 31-33-1 et seq. Under the Act, a “provider” is defined as meaning all hospitals and other specified entities providing health care services. OCGA § 31-33-1 (2). Upon written request from the patient, the provider having custody and control of the patient’s record is required to furnish a copy of that record to the patient or to any other person or provider designated by the patient. OCGA § 31-33-2 (a), (b). OCGA § 31-33-3 (a) states that the party requesting the patient’s records shall be responsible to the provider for the “reasonable costs of copying and mailing the patient’s record.”

The trial court held that the Act by its plain language applies only to health care providers and not to entities such as defendants which supply photocopying services for such providers even though such entities may be acting as the providers’ agents. This holding was error under principles of statutory construction and agency law.

“It is, of course, fundamental that ‘the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.’ [Cit.]” City of Jesup v. Bennett, 226 Ga. 606, 608 (2) (176 SE2d 81) (1970).

As we interpret the Health Records Act, the intent of the legislature was to ensure that patients have access to medical records in the custody and control of health care providers without being charged more than the reasonable costs of copying and mailing them. This intent would be completely defeated through a construction of the Act that would allow patients to be charged more than the reasonable copying and mailing costs if the providers hire others to perform the task of supplying the records.

Moreover, “the [defendants], being [agents] of the [hospitals], could not be clothed with greater power or authority than [their] principalis]. The [hospitals] cannot do by indirection that which [they] could not do directly, for there can be conferred upon an agent no greater power than that possessed by the principal. [Cits.]” Tippins v. Cobb County Parking Auth., 213 Ga. 685, 688 (100 SE2d 893) (1957).

2. The voluntary payment doctrine is codified at OCGA § 13-1-13: “Payments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule prescribed in this Code section.”

Essentially three conditions must be met before recovery of a payment is barred by the doctrine. First, the payment must have been made through ignorance of the law or where all the facts are known. “ ‘(T)he party seeking recovery must prove that the payment was not voluntarily made because certain material facts were not known at the time of payment or a valid reason existed for failure to determine the truth. (Cit.)’ [Cit.]” Rod’s Auto Finance v. The Finance Co., 211 Ga. App. 63 (1) (438 SE2d 175) (1993). Second, the payment must not have been induced by misplaced confidence, artifice, deception, or fraudulent practice on the part of the person to whom the money is paid. Lowe v. Presley, 86 Ga. App. 328, 332 (71 SE2d 730) (1952). Third, the payment must not have been made under an urgent necessity or for the other reasons specified in the statute. Compare Strachan Shipping Co. v. Mayor &c. of Savannah, 168 Ga. 309 (147 SE 555) (1929), with Rose v. Mayor &c. of Thunderbolt, 89 Ga. App. 599 (80 SE2d 725) (1954).

It is uncontested that when plaintiffs made the payments, all material facts were known by them. At most, they made the payments through an unexcused ignorance of law.

They maintain that defendants practiced an artifice on them by providing the records which the hospitals had a duty to provide and then billing them for excessive and illegal amounts which the hospitals could not impose. To the extent that this practice by the defendants may have constituted some sort of artifice, it does not appear that it in any way induced the plaintiffs into making the payments they seek to recover.

The plaintiffs have also alleged that they made the payments through misplaced confidence, mistake, and/or neglect. Again, however, plaintiffs have alleged no facts from which any of these excuses could be found. Compare Gulf Life Ins. Co. v. Folsom, 256 Ga. 400 (349 SE2d 368) (1986), in which it was uncontested that plaintiff made the payment to defendant as the result of a computer mistake. Therefore, these were not the type of sufficiently pleaded factual allegations which the trial court was required to accept as true.

Plaintiffs also claim they made the payments because they would have otherwise risked collection action and impairment of their credit. This does not constitute an urgent necessity within the meaning of the voluntary payment doctrine. See Strachan Shipping, supra. It does not escape the bar of the doctrine.

Nor is it avoided by reason of the fact that the charges were imposed on plaintiffs by defendants in contravention of a statute. See Henson v. Columbus Bank &c. Co., 144 Ga. App. 80 (240 SE2d 284) (1977); see also City of Norcross v. Taylor, 153 Ga. App. 836 (267 SE2d 255) (1980). “[B]y [their] voluntary payment of the [invoices] . . ., [plaintiffs] cannot demand return of the [money] based upon an alleged breach of contract.” Henson, 144 Ga. App. at 82 (3). Further, a party is not entitled to the recovery of restitutionary damages for unjust enrichment where there has been a voluntary payment of the money received. See Ginsberg v. Termotto, 175 Ga. App. 265, 266 (1) (333 SE2d 120) (1985); compare Jennings v. Stewart, 106 Ga. App. 689, 690 (3) (127 SE2d 842) (1962).

For the foregoing reasons, the court did not err in dismissing the various counts of plaintiffs’ complaints, as well as their requests for injunctive relief. It follows that it was not error to refuse to grant class action certification to these cases. See Williams v. Cox Enterprises, 159 Ga. App. 333, 335 (5) (283 SE2d 367) (1981).

3. Although we dismiss defendants’ cross-appeals as moot, we note that, for the purpose of ruling on defendants’ motions to dismiss, the trial court was required to accept as true plaintiffs’ allegations concerning the unreasonableness of defendants’ charges. See Yates, supra.

Judgments in Case Nos. A96A0850, A96A0852, A96A0854, and A96A0856 affirmed. Appeals in Case Nos. A96A0853, A96A0855, and A96A0857 dismissed.

Birdsong, P. J., concurs. Blackburn, J., concurs specially.

Decided May 9, 1996

Reconsiderations denied June 3, 1996

Carr, Tabb & Pope, David H. Pope, Timothy W. Wolfe, Victor Alexander, Jr., for appellants.

Arnall, Golden & Gregory, Karen B. Bragman, Henry M. Perlowski, Hunter, Maclean, Exley & Dunn, Timothy N. Toler, Arnold C. Young, Nelson, Mullins, Riley & Scarborough, Robert W. Foster, Jr., B. Shane Clanton, for appellees.

Blackburn, Judge,

concurring specially.

I agree with the majority that plaintiffs failed to allege sufficient facts in their complaints to avoid the voluntary payment doctrine. See OCGA § 13-1-13. However, the fact that plaintiffs were provided with the requested documents prior to making the complained-of payments is essential to the application of the voluntary payment doctrine. Had the defendants withheld the requested documents until payment was made, plaintiffs might have shown that their payments were made pursuant to an urgent necessity. I further note that the trial court was correct in determining that the defendants’ copying charges were unreasonable.


author: Smith, Judge.

text:
    A96A0262, A96A0263.
    SOUTHERN GENERAL INSURANCE COMPANY v. WAYMOND et al.; and vice versa.
    (472 SE2d 325)
   Smith, Judge.

This case arose out of a motor vehicle accident between a log truck and trailer insured by Southern General Insurance Company (Southern General) and an automobile driven by David Waymond, Jr. Waymond was killed, and his mother, Sylvia Waymond, brought this wrongful death action against the driver of the truck, the owner of the truck, and Southern General. Prior to trial, Waymond voluntarily dismissed the driver and the owner without prejudice. Southern General moved for dismissal or summary judgment on the ground that Waymond could not maintain a direct action against it. The trial court denied the motion, and the case proceeded to trial before a jury. At the conclusion of Waymond’s evidence and again at the conclusion of Southern General’s evidence, Southern General unsuccessfully moved for directed verdict. The jury found in favor of Waymond and awarded her $1.2 million. The trial court denied Southern General’s motions for new trial and judgment notwithstanding the verdict, and this appeal ensued.

Although Southern General raises several enumerations, the central issue is whether Waymond could bring a direct action against Southern General. Southern General contends that Waymond could not maintain such an action for two reasons: (1) the log truck was exempt from suit under OCGA § 46-1-1 (7) (C) (x) and (xi); and (2) even if not exempt, Waymond failed to prove the essential elements of her right to proceed directly. We agree with the latter contention and reverse.

OCGA § 46-7-50 et seq., the “Motor Carrier Act of 1931,” identifies “the conditions and regulations under which motor carriers for hire, other than common carriers and private carriers, are permitted to operate over the highways of this state.” OCGA § 46-7-50. To operate, a motor contract carrier is required to obtain a certificate of public convenience and necessity from the Public Service Commission. OCGA § 46-7-53 (a). To obtain such a certificate, the motor carrier must “give bond, with adequate security, for the protection ... of the passengers and baggage carried and of the public against injury proximately caused by the negligence of such motor carrier, its servants, or its agents.” OCGA § 46-7-58 (a). In its discretion, the PSC may permit a motor carrier to file a policy of indemnity insurance, approved by the PSC in lieu of bond. OCGA § 46-7-58 (c). Only when such a bond or policy of indemnity insurance has been given by the motor carrier may a direct action be brought against the motor carrier’s insurer; OCGA § 46-7-58 (e) provides that an individual may “join in the same action the motor carrier and its surety, in the event a bond is given. If a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action, whether arising in tort or contract.” (Emphasis supplied.) This statute, in derogation of the common law prohibiting direct actions against insurers, must be strictly construed. See Nat. Indem. Co. v. Tatum, 193 Ga. App. 698, 700 (388 SE2d 896) (1989) (construing identical language of OCGA § 46-7-12 (e)).

The trial transcript reveals that no certificate of public convenience and necessity was ever issued by the PSC to the carrier, Richard A. Murray, or to Richard Murray d/b/a Murray Trucking. Further, the PSC’s director of compliance and safety testified that she found no evidence in PSC records that an insurance policy issued by Southern General had been filed.

The facts and issues addressed in Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (359 SE2d 351) (1987) are similar to those here. In Glenn McClendon, plaintiff brought a direct action against a motor carrier and its insurer. The insurer had provided a liability policy to the motor carrier, but the policy had neither been filed with the PSC in lieu of bond nor approved by the PSC. This court construed OCGA § 46-7-12 (e), a provision in the Motor Carrier Act relative to “common carriers” identical to OCGA § 46-7-58 (e). Reversing the denial of the insurer’s motions for directed verdict and j.n.o.v., we stated: “Evidence merely that the alleged tortfeasor had secured a policy which provided liability coverage would show only the existence of a policy which indemnified the alleged tortfeasor himself against loss for his own liability. Such proof would fail to show that the injured party was a third-party beneficiary who had a direct pre-judgment cause of action in contract against the insurer itself. Unless the applicability of OCGA § 46-7-12 is shown by evidence of the existence of a policy issued with the approval of the Public Service Commission, the general rule, that an insurer may not be joined as a party defendant with its insured where there has been no judgment previously obtained against the insured, is applicable.” (Citation and punctuation omitted; emphasis supplied.) Id. at 509-510.

Under the unambiguous terms of the statute, as construed in Glenn McClendon, a plaintiff must prove that a policy was filed and approved by the PSC in order to maintain a direct action against the insurer of a motor contract carrier. Accord American Motorists Ins. Co. v. King Shrimp Co., 199 Ga. App. 847, 849 (1) (406 SE2d 273) (1991); compare Progressive Cas. Ins. Co. v. Scott, 188 Ga. App. 75, 76 (371 SE2d 881) (1988) (physical precedent only) (some evidence presented of filing and approval, so summary judgment to insurer denied).

Here, Waymond did not present any evidence that an insurance policy was filed with and approved by the PSC. The only evidence presented was that no such filing and approval had occurred. Consequently, Southern General was not subject to a direct action under the plain language of OCGA § 46-7-58 (e).

Waymond urges adoption of a rule that when an insurer knows or should know that a motor carrier is subject to PSC regulation, the insurer should be subject to a direct action. She contends that Southern General should have known that Murray Trucking was subject to PSC regulation because it issued three certificates of insurance on behalf of Murray Trucking. These certificates, according to Waymond, indicate that Southern General had knowledge that Murray Trucking was not exempt from regulation under OCGA § 46-1-1 (7) (C) (x) or (xi) and should be subject to a direct action. She attempts to distinguish Glenn McClendon on this ground.

We do not reach the issue of whether Murray Trucking was exempt from regulation by the PSC under OCGA § 46-1-1 (7) (C) (x) or (xi). Assuming arguendo, however, that Murray Trucking was subject to PSC regulation and that Southern General had knowledge of this fact, neither the direct action statute nor Glenn McClendon provides an exception when the insurer had or should have had such knowledge. We find nothing in this Court’s holding in Glenn McClendon that authorizes an exception to the rule that an essential element of proof is evidence of filing with and approval of a policy by the PSC. Waymond is attempting to impose a responsibility on Southern General not provided for by the statute, a statute that must be strictly construed. This responsibility of filing a bond or insurance policy in lieu of bond is with the motor carrier, not the insurer. OCGA §§ 46-7-53 (a); 46-7-58 (a).

Decided June 3, 1996

Glover & Blount, Percy J. Blount, Groover & Childs, Denmark Groover, Jr., for appellant.

Kirwan, Parks, Chesin & Remar, Walter H. Beckham III, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Preyesh K. Maniklal, for appellee.

Hugh B. McNatt, Dye, Tucker, Everitt, Wheale & Long, A. Rowland Dye, Gray & Gilliland, T. Cullen Gilliland, amici curiae.

Because Waymond failed in presenting evidence of an essential element of proof, the trial court erred in denying Southern General’s motion for directed verdict. Southern General’s other contentions, as well as those raised by Waymond in her cross-appeal, are moot in light of this holding.

Judgment reversed.

Pope, P. J., and Andrews, J., concur.


text:
    A96A0279.
    MOORE et al. v. GRAHAM.
    (472 SE2d 152)
   Judge Harold R. Banke.

Jennifer Moore, Sheila Fussell, and Suprena Eady (collectively “Moore”) sued Jennifer Graham for injuries allegedly sustained when their vehicle was struck by Graham’s vehicle. After the jury rendered a defense verdict, the trial court denied Moore’s motion for new trial. On appeal, Moore enumerates eight errors primarily challenging the trial court’s evidentiary rulings.

The trial evidence was as follows. As Eady was driving with her two sisters, Moore and Fussell, as passengers, their vehicle was hit by Graham’s car as Graham changed lanes. From about a half block away, a police officer, Sergeant Ramon Harper, witnessed the low-speed collision. Sergeant Harper testified that after the bumper of one car struck the left fender of the other car, both vehicles pulled over. Eady and Fussell immediately exited their vehicle and were cursing Graham when he arrived, but then reentered their vehicle. Graham informed him she was unhurt but Moore, Eady and Fussell all claimed their necks and backs hurt. At their request, Sergeant Harper summoned an ambulance. Although he had witnessed Graham’s lane change, he did not issue a citation to either driver. Five days after the accident, Eady, Moore, and Fussell all began treatment with the same chiropractor, Dr. John Moffet. One of the sisters indicated that she selected Moffet upon her attorney’s recommendation. Held:

1. Moore failed to show a manifest abuse of discretion in the trial court’s exclusion of Exhibits 13, 15 and 16. See Friedman v. Friedman, 259 Ga. 530, 532 (3) (384 SE2d 641) (1989). Exhibits 15 and 16, repair estimates for damage to the vehicle Eady was driving which belonged to a non-party, were properly excluded as hearsay. Moore failed to show through the testimony of a witness familiar with the repair estimates that they were records which were made and kept in a timely manner, in the regular course of business. OCGA § 24-3-14; Suarez v. Suarez, 257 Ga. 102, 103 (2) (355 SE2d 649) (1987). Because Moore failed to lay the requisite foundation, the exhibits were properly excluded.

Exhibit 13 consisted of Sheila Fussell’s medical records from Dr. Moffet at Coffee Chiropractic Clinic, P.C., as well as inadmissible documents including Dr. Moffet’s correspondence with an attorney, an attorney’s lien from a prior accident, and two Automobile Accident Questionnaires including one concerning an earlier automobile accident. After the trial court deemed the entire proffered exhibit inadmissible, Moore failed to excise the inadmissible documents from the medical records which were likely admissible under OCGA § 24-7-8. Because the exhibit contained hearsay and irrelevant information, the trial court did not abuse its discretion in rejecting the exhibit in its entirety. See Giles v. Taylor, 166 Ga. App. 563 (305 SE2d 154) (1983).

2. The trial court properly restricted Dr. Moffet’s testimony on direct. Because Moffet’s testimony was often redundant, verbose, and unresponsive, the trial court did not err in encouraging Moffet to confine his testimony to relevant matters. Nor are we able to find that the witness was subjected to badgering by defense counsel.

3. The cross-examination of Dr. Moffet, no novice to courtroom appearances, did not exceed the statutory bounds entitling Graham to a “right of a thorough and sifting cross-examination.” OCGA § 24-9-64.

Decided June 3, 1996.

Franklin D. Hayes, for appellants.

Walker & Sweat, Bruce M. Walker, Lowendick, Speed & Donahue, Craig R. White, for appellee.

4. Even assuming arguendo that the trial court erred in admitting Sergeant Harper as an expert witness in accident reconstruction/investigation, the error was harmless, because Harper witnessed this particular accident and testified about what he saw based on his firsthand observation. Further, Moore failed to establish both the trial court’s harm and error with its ruling. See Miller Grading Contractors v. Ga. Fed. Sav. &c. Assn., 247 Ga. 730, 734 (3) (279 SE2d 442) (1981).

5. The trial court did not err by permitting Sergeant Harper to offer his opinion that appellants exaggerated their injuries, because “any witness may swear to his opinion or belief, giving his reasons therefor.” OCGA § 24-9-65. “ ‘The question of whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is for the trial court.’ (Cit.)” Peterson v. RTM Mid-America, 209 Ga. App. 691, 693 (1) (434 SE2d 521) (1993). Because Harper had extensive experience in accident investigation and also had firsthand knowledge of this accident, we are not able to find an abuse of discretion by the trial court.

6. The trial court did not commit reversible error by permitting Moore to testify that if she had been wearing a seat belt she would not have been injured. Even if the court’s ruling was error, Moore failed to show both error and harm. OCGA § 9-11-61; Miller Grading Contractors, 247 Ga. at 734.

7. We cannot say that the trial court improperly admitted evidence of Eady’s conviction for possession of cocaine with intent to distribute because Moore failed to raise a proper objection. Moore cannot raise for the first time on appeal an objection that this exhibit was improper character evidence. Errors not raised at trial will not be considered and ruled upon on appeal. Brown v. Thomas, 257 Ga. 68, 69 (1) (354 SE2d 830) (1987).

8. The trial court properly denied Moore’s motion for a new trial because there was evidence to support the jury’s defense verdict. Building Materials Wholesale v. Reeves, 209 Ga. App. 361, 364 (2) (433 SE2d 346) (1993); Williamscraft Dev. v. Vulcan Materials Co., 196 Ga. App. 703, 704 (2) (397 SE2d 122) (1990).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

       Moore claims that Exhibit 12 was improperly excluded but the transcript shows it was tendered and admitted without objection.


text:
    A96A0665.
    VOXCOM, INC. v. BODA.
    (472 SE2d 155)
   Ruffin, Judge.

This is the second time this case has come before us on appeal. See Voxcom, Inc. v. Boda, 213 Ga. App. 257 (444 SE2d 164) (1994). In the underlying action, Stephen Boda sued Voxcom, Inc. for breach of the severance pay provision in the parties’ employment contract. The jury returned a verdict in favor of Boda for $52,000 principal and $11,527 interest. After the jury was dismissed, Boda moved the court to amend the verdict to include additional interest. Boda argued the parties stipulated that interest, if awarded, should have been calculated at seven percent from the date of the breach, totaling $23,053. The trial court granted the motion and added $11,527 in interest to the jury’s verdict. Voxcom appeals from that order, and for reasons which follow, we reverse.

The sole issue for consideration here is whether the trial court erred in amending the verdict to include the additional interest. In its order, the trial court found that according to its charge, “interest was to be calculated based on three stipulated factors: (1) the principal sum ($52,000), (2) the date of breach if any was found and (3) the appropriate rate of interest (7%) [totaling $23,053].” Likewise, both parties contend in their appellate briefs, without citation to the transcript, that the court charged that the jury could award interest at seven percent from the date of breach. The parties further contend that the court charged the jury that it “may consider and determine from what date there has occurred a breach of contract, and whether you will include a recovery of interest in your award. . . .” Boda asserts in his brief, again without citation to the record, that the trial court ruled that the breach occurred on a certain date and that the seven percent interest could only be awarded from that date to the date of the verdict. We find, however, that none of these assertions is supported by the record.

We have thoroughly reviewed the court’s entire charge and find only the following language concerning damages: “If you find that [Voxcom] breached its contract with [Boda], the proper measure of damages would be one year’s severance pay, whatever you determine the severance pay to have been as determined by the contract between [Voxcom] and [Boda]. Should you find in favor of Mr. Boda . . . you may award [him] damages for Voxcom’s alleged breach of contract. The maximum amount of damages you may award against Voxcom is the sum the parties have stipulated to as one year’s severance pay, that is $52,000, plus interest of $23,053, for a total of $75,053.” (Emphasis supplied.)

Because the charge conference was not recorded, we cannot account for the discrepancy between the court’s and' the parties’ recollection of the jury charge and the transcript. While the additional instructions stated in the parties’ briefs may have been requested or even agreed upon, “[w]e are bound to decide the case upon the record as it comes to us and not upon the briefs of counsel. . . .” Anderson v. Oakley, 133 Ga. App. 758, 760 (212 SE2d 875) (1975). Likewise, Boda’s failure to cite that portion of the record where the court purportedly ruled regarding the date of the breach, renders that contention meritless. Under Court of Appeals Rule 27 (b) (1), Boda was required to cite that part of the transcript if he believed Voxcom’s facts were incomplete. In the absence of such citation, Boda is deemed to consent to a decision based on Voxcom’s statement of facts. Id. We will not cull the record on Boda’s behalf. Saffar v. Chrysler First &c., 215 Ga. App. 239 (1) (450 SE2d 267) (1994).

Based on the record, we conclude the trial court was not authorized to amend the verdict. “A verdict may be amended in mere matter of form after the jury has dispersed. However, after a verdict has been received and recorded and the jury has dispersed, it may not be amended in matter of substance either by what the jurors say they intended to find or otherwise.” OCGA § 9-12-7. See also Force v. McGeachy, 186 Ga. App. 781, 783 (1) (368 SE2d 777) (1988). A jury’s verdict is presumed to be valid and should, if possible, be construed as such. Parks v. Parks, 89 Ga. App. 725, 728 (1) (80 SE2d 837) (1954).

In this case, it is clear that the jury intended to award interest, but found that Boda was entitled to less than the maximum amount the court charged could be awarded. Although Boda asserted in his appellate brief that the trial court ruled the breach occurred on a certain date, as noted above, this assertion was not supported by reference to the transcript. It is possible that the jury decided that the breach occurred at a later date, thereby accounting for the reduction in interest. Such a finding is certainly authorized under the rules governing construction of verdicts. See id. After the jury dispersed, the trial court was without authority to add additional interest; the verdict was valid, and there is no indication the jury intended to award the maximum amount of interest. See McGeachy, supra; Aston Mills v. Suntek Indus., 190 Ga. App. 217 (378 SE2d 399) (1989). “Accordingly, the judgment is reversed with direction that a new judgment be issued in conformity with the jury’s verdict. [Cit.]” Hoffman v. Clendenon, 150 Ga. App. 98, 99 (2) (256 SE2d 676) (1979).

Decided June 3, 1996.

Webb & Lindsey, Richard P. Lindsey, for appellant.

Zimring, Ellin & Miller, Martin L. Ellin, for appellee.

Judgment reversed and remanded with direction.

McMurray, P. J., and Johnson, J., concur.

       Although the verdict was stated as an aggregate sum of principal and interest in the amount of $63,527, the record shows that the parties stipulated the amount of principal to be awarded, if any, was $52,000, leaving the balance to be attributed as interest. See Mock v. Wrigley, 178 Ga. App. 660 (344 SE2d 482) (1986); Bentley v. Phillips, 171 Ga. 866 (5) (156 SE 898) (1930). The issue of whether such an aggregate award is in error is not before us. See id.


text:
    A96A0705.
    BRADLEY v. BRITISH FITTING GROUP, PLC et al.
    (472 SE2d 146)
   Ruffin, Judge.

British Fitting Group, PLC, Harben, Inc., and British Flowplant Group, Ltd. (collectively “BFG”), executed a release agreement with Martin Bradley to settle Bradley’s claim that he was wrongfully terminated from BFG’s employment. In this action, BFG sued Bradley for breach of contract and fraud arising from Bradley’s alleged breach of the release agreement. Bradley counterclaimed, inter alia, that BFG was liable to him for intentional infliction of emotional distress. The trial court granted BFG’s motion for summary judgment and denied Bradley’s cross-motion for summary judgment. Bradley appeals from the trial court’s order, and for reasons which follow, we affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Many of the material facts in this case are undisputed. British Fitting Group and British Flowplant Group are United Kingdom corporations. Both corporations previously employed Bradley in England pursuant to an employment agreement. Under an addendum to the employment agreement, Bradley was subsequently transferred to Georgia to work for a subsidiary, Harben, Inc. On October 9, 1992, BFG terminated Bradley’s employment. To settle Bradley’s contention that he was wrongfully terminated, BFG paid him $26,558.69 and the parties executed a mutual release agreement on January 25, 1993. In its complaint, BFG alleged that after signing the release, Bradley filed a claim against it in the United Kingdom Industrial Tribunal (“Industrial Tribunal”) seeking compensation under United Kingdom law for his allegedly unfair dismissal. In support of its motion for summary judgment, BFG cited to the release agreement’s language and portions of Bradley’s deposition testimony.

1. In his first enumeration of error, Bradley asserts that the trial court erred in granting summary judgment because it lacked subject-matter jurisdiction. In support of his contention, Bradley cites a paragraph in his employment agreement with BFG which provides that “the parties submit to the exclusive jurisdiction of the English Courts.” (Emphasis supplied.)

As a preliminary matter, we note that the superior court clearly had jurisdiction to decide the contract and tort issues before it. See Ga. Const, of 1983, Art. VI, Sec. IV, Par. I; OCGA § 15-6-8. See also Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208 (1) (367 SE2d 43) (1988). Furthermore, Bradley has not shown that the jurisdiction clause in the employment contract governs the superior court’s jurisdiction over a dispute concerning the release agreement. Moreover, the employment contract provision does not purport to address subject-matter jurisdiction, but rather personal jurisdiction. The provision’s clear language speaks to jurisdiction over the parties, not the subject matter. Had the provision addressed subject-matter jurisdiction, it would have been invalid because parties cannot determine a court’s subject-matter jurisdiction by contract. Apparel Resources Intl. v. Amersig Southeast, 215 Ga. App. 483 (1) (451 SE2d 113) (1994). Accordingly, because the provision Bradley relied on did not deprive the trial court of subject-matter jurisdiction, we find no error.

2. Bradley asserts that the trial court erred because BFG’s claims were barred by the principles of res judicata and collateral estoppel. Bradley argues that the trial court in this case was bound by the Industrial Tribunal’s award, which did not recognize the validity of the release under its own laws. Bradley’s argument fails for two reasons.

First, res judicata and collateral estoppel do not apply because Bradley failed to introduce certified copies of the Industrial Tribunal proceedings. “In order to prove res judicata or collateral estoppel, a litigant must introduce those portions of the prior proceeding, duly certified, which are necessary to prove the defense. [Cit.]” Roberts v. Porter, Davis &c., 193 Ga. App. 898, 901 (2) (389 SE2d 361) (1989).

Second, neither the causes of action nor the issues in the two actions were the same. “Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.” Waldroup v. Green County Hosp. Auth., 265 Ga. 864, 866 (1) (463 SE2d 5) (1995). In this case, we reach only the first prerequisite in concluding that res judicata does not apply. Even if we could rely on the uncertified copies of record, they show that Bradley’s cause of action before the Industrial Tribunal was for damages based on his unfair dismissal. In the instant case, BFG asserted causes of action for breach of the release agreement and fraud. Accordingly, the causes of action in each proceeding were different.

Similarly, the issues in the two actions were not identical. Collateral estoppel, which precludes the re-adjudication of an issue, requires in part that the same issue was actually litigated and decided in the previous action. Id. at 867. The issue Bradley asserts was decided in the previous action, whether the release agreement is valid under United Kingdom law, is not an issue in this case. The release plainly states that it is to “be construed under the laws of the state of Georgia.” Therefore, the validity of the release must be determined according to our laws. Manderson & Assoc. v. Gore, 193 Ga. App. 723 (1) (389 SE2d 251) (1989). Bradley does not argue or point to any evidence showing that the United Kingdom tribunal decided the validity of the release under Georgia law. Because that issue was not previously adjudicated, collateral estoppel does not apply.

3. Bradley asserts that the trial court erred in granting BFG summary judgment on its breach of contract claim because the release agreement was void and not legally binding. Here again, Bradley erroneously relies on United Kingdom law in support of his arguments. As we found in Division 2, the release agreement in this case is to be construed under Georgia law. And, although Bradley cites to the public policy of several federal and state laws concerning unemployment and workers’ compensation, he has not shown how any of those laws are applicable in this case. There is no evidence in the record that Bradley sought benefits under these laws, or that he was even entitled to such benefits. Accordingly, we turn our attention to Georgia’s laws concerning the construction and validity of release agreements.

“ A release or settlement agreement is a contract subject to construction by the court. It is governed by state law applicable to contracts in general. The cardinal rule of construction is to determine the intention of the parties. But no construction is required or even permissible when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.’ [Cit.] Darby v. Mathis, 212 Ga. App. 444, 445 (1) (441 SE2d 905) (1994).

The release agreement in this case provides that “the parties . . . desire to compromise and settle all claims which exist, whether known or unknown, between [BFG] and Bradley upon the terms hereinafter set forth.” Under the agreement, Bradley released BFG “from all claims, demands, actions, causes of action, known or unknown, of every kind and nature, statutory of (sic) otherwise, in contract or in tort, at law or in equity, and, particularly and without limiting the generality of the forgoing, shall have no claim directly or indirectly as a result of the [employment] Agreement ... or otherwise as a result of his employment relationship with [BFG].” The release reflects that Bradley executed it voluntarily, that he fully understood it, and that he “EXPRESSLY RECOGNIZES THAT [IT] IS A FULL AND GENERAL RELEASE.”

In his answer, Bradley admitted to filing a claim in the Industrial Tribunal against BFG for his unfair dismissal. If Bradley desired to reserve his claim before the Industrial Tribunal, he should have specifically stated such a reservation in the release agreement. See id.; Ingram v. Star Touch Communications, 215 Ga. App. 329, 330 (1) (450 SE2d 334) (1994). “[Settlement is, in and of itself, generally construed to be a final disposition of any claim against a party to settlement by a party to the settlement arising out of the subject incident, unless remaining claims are specifically reserved by any of the parties. [Cit.]” Id. Such compromises are “ ‘upheld by general policy, as tending to prevent litigation, in all enlightened systems of jurisprudence. [Cits.]’ [Cit.]” Herring v. Dunning, 213 Ga. App. 695, 696 (446 SE2d 199) (1994).

Because Bradley has not shown that the release was invalid or that he made any reservation to preserve the claim at issue, the plain and unambiguous language of the release controls, and any and all causes of action Bradley may have had against BFG were barred. Darby, supra at 445. The trial court did not err in granting summary judgment to BFG on its claim for breach of contract. See id.

4. Bradley asserts that the trial court erred in granting BFG summary judgment on its fraud claim because he did not misrepresent a material fact to BFG that induced it to execute the release agreement. Here again, Bradley erroneously relies on his contention that the release agreement was invalid under United Kingdom law. Because we have already concluded that the release is valid under Georgia law, and further find that Bradley executed it with the intent not to comply with its terms, we find no error.

“The general rule is that actionable fraud cannot be predicated upon promises to perform some act in the future. Nor does actionable fraud result from a mere failure to perform promises made. Otherwise any breach of a contract would amount to fraud. An exception to the general rule exists where a promise as to future events is made with a present intent not to perform or where the promisor knows that the future event will not take place.” (Citations and punctuation omitted.) Hamilton v. Advance Leasing &c., 208 Ga. App. 848, 850 (2) (432 SE2d 559) (1993).

In this case, BFG presented evidence showing that at the time Bradley executed the release, he fully intended to proceed with his claim against BFG in the Industrial Tribunal. In his deposition, Bradley acknowledged that prior to executing the release, he discussed it with his United Kingdom counsel. He further acknowledged that counsel informed him he could sign the release and later proceed with his claim in the United Kingdom. Bradley admitted that he then executed the release, took the money, and subsequently proceeded with his claim for more money in the Industrial Tribunal. Under the exception stated in Hamilton, Bradley’s actions constituted fraud.

Bradley also contends that there was no evidence that BFG relied on him not proceeding with his Industrial Tribunal claim. We disagree. The release agreement states that the parties desired to settle “all claims which exist, whether known or unknown, between [BFG] and Bradley. . . .” BFG paid Bradley substantial consideration to settle all such claims. In addition, BFG’s supporting affidavit shows that the release was intended “to include any claims in the Industrial Tribunal of the United Kingdom.” Because Bradley has not pointed to specific evidence giving rise to a triable issue, we find no error. Lau’s Corp., supra at 495.

5. In his final enumeration of error, Bradley asserts that the trial court erred in granting BFG summary judgment on his claim for intentional infliction of emotional distress. Bradley argues that after BFG terminated him, it intentionally withheld money due to him under his employment contract. He claims that during the three and one-half months between his termination and the parties’ settlement, he was unable to obtain other employment due to visa restrictions or care for his family. Bradley cites a letter from BFG concerning his termination as one example of outrageous conduct. That letter stated that Bradley would receive formal written notice of his termination from BFG’s offices in the United Kingdom. The letter requested that Bradley call to arrange a convenient time to visit the office to collect his personal effects, and that he “please return any keys, company credit cards, or other items that are the property of Harben.” Bradley argues that this letter “was such as would naturally humiliate and embarrass to an egregious extent someone in [his] position.”

“ ‘The tort of intentional infliction of emotional distress is recognized in this state, where the defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass, or frighten the plaintiff.’ [Cit.] ‘The law intervenes only where the distress inflicted is so severe that no reasonable person could be expected to endure it.’ [Cit.] ‘There is no occasion for the law to intervene in every case where someone’s feelings are hurt.’ [Cit.]” Carroll v. Rock, 220 Ga. App. 260, 262 (2) (469 SE2d 391) (1996). “ ‘It is for the court to determine whether on the strength of the evidence severe emotional distress can be found. [Cit.]’ [Cit.]” Southern Gen. Ins. Co. v. Holt, 200 Ga. App. 759, 767 (5) (409 SE2d 852) (1991), rev’d in part on other grounds, 262 Ga. 267 (416 SE2d 274) (1992).

Decided June 3, 1996.

Patricia A. Buttaro, for appellant.

Gleaton, Scofield, Egan & Jones, E. Gleaton Scofield III, Marla M. Eastwood, Peter M. Lynch III, for appellees.

The record in this case shows that approximately two weeks after Bradley’s termination, BFG offered him a severance package. After BFG’s offer, Bradley retained counsel who wrote to BFG demanding significantly more compensation. Thereafter, the parties negotiated settlement terms which were eventually memorialized in the release agreement. Bradley has not pointed to any evidence showing that BFG’s conduct in negotiating the settlement amounted to intentional infliction of emotional distress. And, even if Bradley could show that BFG’s failure to settle at an earlier date was in bad faith, such conduct by itself would be insufficient to support his claim. See id. “ ‘Even construing the evidence as we must, in favor of [Bradley] as the nonmoving party, an exhaustive review of the record in this case reveals no actions directed against [him] by [BFG] that amount to “the kind of egregious conduct necessary to state a claim for the intentional infliction of emotional distress.” [Cit.]’ [Cit.] Therefore, the trial court correctly granted summary judgment in favor of [BFG] on this issue.” Anderberg v. Ga. Elec. Membership Corp., 175 Ga. App. 14, 16 (3) (332 SE2d 326) (1985).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.