author: Johnson, Judge.

text:
    A95A2354.
    CITY OF WARNER ROBINS v. HOLT.
    (470 SE2d 238)
   Johnson, Judge.

The City of Warner Robins appeals a jury’s verdict in favor of plaintiif Mark Holt, as well as the denial of its motions for new trial and judgment notwithstanding the verdict.

On appeal, we are required to construe the evidence to support the jury’s verdict. When so construed, the evidence at trial shows as follows:

In 1977, the City of Warner Robins closed a landfill which it had previously operated. Several years later a residential subdivision was developed adjacent to the landfill site. Mark Holt purchased one of the houses in that subdivision. In 1987, the Georgia Environmental Protection Division (“EPD”) detected low levels of methane gas on one of the lots in the subdivision. Holt’s property was tested as well, but no methane gas was detected there at that time. An engineering firm hired by the city submitted a report in 1989, however, which concluded that a portion of the closed landfill was encroaching on lots in the subdivision, including Holt’s. The fill material was generating methane gas which could threaten the homes. Because the removal of the fill material is costly, the engineer recommended that the fill material be left intact, rendering the houses uninhabitable. Alternatively, the firm proposed the installation of a barrier trench and venting wells which would vent the methane gas into the atmosphere. When engineers hired by Holt found methane gas on his property in 1990, Holt moved out of his house and filed suit against the city asserting claims of trespass, abatable and permanent nuisance, emotional distress, and seeking to recover litigation expenses. The case was tried before a jury.

On a specially drafted verdict form, the jury awarded Holt: (1) $59,000 for diminution of market value of his house, which the jury indicated represented the full market value of the property; (2) $22,000 for the lost rental value of the house; (3) $77,000 for Holt’s attorney fees and expenses of litigation; and (4) $52,000 for emotional distress or for loss of peace, happiness, or enjoyment. The trial court entered judgment on the jury’s verdict. This appeal follows the denial of the city’s post-trial motions.

1. The city contends the trial court erred by submitting to the jury Holt’s claim for litigation expenses and attorney fees.

(a) The city asserts that because it is a governmental entity, it is immune from any claim for attorney fees and expenses of litigation. However, it is well-settled law that when warranted, attorney fees and expenses of litigation are recoverable against a municipality. See City of Columbus v. Myszka, 246 Ga. 571, 573 (5) (272 SE2d 302) (1980); City of Dublin v. Hobbs, 218 Ga. 108, 110 (5) (126 SE2d 655) (1962). See also City of Atlanta v. Murphy, 194 Ga. App. 652, 653-654 (2) (391 SE2d 474) (1990).

(b) The city further contends that governmental entities are not subject to awards which are intended to penalize or punish, and that the award of litigation expenses here was designed to punish. The city’s reliance on MARTA v. Boswell, 261 Ga. 427 (405 SE2d 869) (1991) is misplaced. MARTA involved an award of punitive damages, not an award of attorney fees and expenses of litigation. The Georgia Supreme Court has repeatedly allowed recovery of attorney fees and expenses of litigation from municipalities. See City of Columbus v. Myszka, supra; City of Dublin v. Hobbs, supra. Though awards of litigation expenses and attorney fees may often have a somewhat punitive effect on the party against whom they are awarded, to punish or penalize is not their purpose. Rather, in those limited circumstances under which such awards are authorized by law, the purpose is to compensate an injured party, in order that such parties are not further injured by the cost incurred as a result of the necessity of seeking legal redress for their legitimate grievances.

(c) Next, the city argues that even if attorney fees and expenses of litigation are authorized against a municipality, they are not warranted here because a bona fide controversy existed between the parties. Even when a bona fide controversy exists, a party may be liable for attorney fees under OCGA § 13-6-11 where the party sought to be charged has acted in bad faith. Latham v. Faulk, 265 Ga. 107, 108 (2) (454 SE2d 136) (1995); Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219, 224-225 (312 SE2d 386) (1983). Construed to support the verdict, the evidence at trial showed that the EPD, an engineer hired by the city, and Holt’s engineers all found that methane gas was migrating from the landfill, yet the city failed to take remedial measures to protect Holt’s property. Though this evidence was contradicted by evidence produced at trial by the city, it nevertheless constitutes evidence from which the jury could have concluded that the city acted in bad faith. Where there is at least some evidence to support a claim for attorney fees under OCGA § 13-6-11, the trial judge is bound to submit the issue to the jury to decide. It is not for this Court to determine or to question how the jury resolved any apparent conflicts or uncertainties in the evidence. The standard of review of an award of attorney fees under OCGA § 13-6-11 is whether there is any evidence to support the award. See C & S Trust Co. v. Hicks, 216 Ga. App. 338, 340 (2) (454 SE2d 207) (1995). Because there was at least some evidence in this case to support a jury’s finding that the city acted in bad faith, the award of attorney fees must be upheld.

2. The city contends the trial court erroneously permitted double recovery when it charged the jury it could award Holt damages on both the issue of permanent nuisance and abatable nuisance. We agree, and reverse as to the award of damages to Holt for lost rental value of his property.

What constitutes the proper measure of damages recoverable by the owner of real property damaged by a nuisance turns upon the issue of whether the nuisance is permanent or abatable. If the nuisance is permanent, the measure of damages is the diminution of fair market value of the property. If the nuisance is abatable, the measure of damages is lost rental value for so long as the nuisance is allowed to continue. See Piedmont Cotton Mills v. General Warehouse No. Two, 222 Ga. 164, 168 (3) (149 SE2d 72) (1966); Ledbetter Bros. v. Holcomb, 108 Ga. App. 282 (132 SE2d 805) (1963); Burleyson v. Western &c. R. Co., 91 Ga. App. 745 (87 SE2d 166) (1955); see also Cobb and Eldridge, Ga. Law of Damages (3rd ed.), § 31-5, pp. 573-574.

Here, the evidence presented a jury issue concerning whether there was a nuisance, and, if so, whether it was permanent or abatable. Depending upon its determination of the character of the nuisance, a jury may award an injured property owner either lost rental value or diminution of fair market value, but it cannot award both. If the jury awards damages on both alternatives, the trial court must adjust the judgment to reflect damages for only one of these mutually exclusive claims. The greater subsumes the lesser, and, in this case, it is the lesser claim for lost rental value which should not have been included in the judgment.

We do not agree with the city’s contention that there was no evidence of a permanent nuisance. The jury had before it evidence that the city’s first engineer recommended removal of the house as a way to solve the problem Holt and others had encountered because of methane infiltration from the closed landfill. The jury also had before it evidence that the installation of a barrier and ventilation system would itself render Holt’s property unmarketable. Though contradicted by other evidence, this evidence was sufficient to allow the jury to conclude the nuisance is permanent. Holt’s suggestion that the nuisance here changed character from abatable to permanent over time is without merit given that the evidence shows measures available to end the methane infiltration onto his property would themselves render his property unmarketable.

There is sufficient evidence to support the jury’s finding that the value of Holt’s property had been reduced by $59,000. However, for the reasons set out above, the award of an additional $22,000 for lost rental value cannot stand.

Upon remand, the trial court is directed to amend the judgment by deleting the $22,000 awarded by the jury for lost rental value.

3. The city contends that the jury award to Holt for emotional distress was excessive. “The measure of damages for ‘discomfort, loss of peace of mind, unhappiness and annoyance’ of the plaintiff caused by the maintenance of a nuisance is for the enlightened conscience of the jury. [Cit.]” City of Columbus, supra at 573 (6). “The court has no power to review the finding of the jury because their verdict is claimed to be excessive, unless it appears that their finding was due to prejudice or bias, or was influenced by corrupt means. [Cit.]” Wilson v. Dunaway, 112 Ga. App. 241, 247 (8) (144 SE2d 542) (1965). There being nothing in the record to show prejudice or bias by the jury, and the verdict having the approval of the trial judge, we are not authorized to set it aside as excessive. Id.

4. The city contends the trial court erred in failing to instruct the jury that Holt could recover damages for emotional distress only if they found the city’s actions were malicious, wilful, and wanton. The court charged the jury as follows: “Also, if you find from a preponderance of the evidence that the city trespassed, and that the same was willful, wanton and intentional rather than merely negligent, and that the city could reasonably have foreseen that mental pain and suffering would be the natural and proximate result of such conduct, then mental pain and suffering is a legal item of damages for you to consider. In that connection I charge you that the measure is that enlightened conscience of fair and impartial jurors. Questions of how much the Plaintiff has suffered is for you to decide. Anxiety, shock and worry are examples of what might be included under mental pain and suffering.”

Decided February 26, 1996

Reconsideration denied March 19, 1996

Jones, Cork & Miller, Hubert C. Lovein, Jr., Robert C. Norman, Jr., for appellant.

Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, for appellee.

Walter E. Sumner, amicus curiae.

The city concedes this is a proper charge, but complains that the trial court improperly limited this instruction to the trespass count. We have examined the charge, the context in which it was given, and the objection which appellant’s counsel raised to the charge at trial. We find no error. The charge is complete and accurate, and was not improperly limited as the appellant suggests. The objection raised at trial was the court’s failure to give an additional charge on intentional infliction of emotional distress, and an expression of concern that the jury might be confused unless they were charged that “before awarding any money damages for emotional or mental distress they must find that the conduct of defendant is intentional, or malicious, willful, and wanton.” The charge complained of told the jury exactly that.

5. Finally, the city contends the trial court erred in allowing into evidence current solid waste regulations regarding landfill buffers which were not in effect when the landfill in question closed in 1977. Holt’s expert was allowed to read into evidence current regulations and requirements for buffers around landfills which went into effect in 1990 and were not retroactive. The city’s objection asserted that current regulations are not relevant. Pretermitting whether the testimony was relevant, questions of relevancy are within the domain of the trial court, and objections solely based on the irrelevancy of evidence are insufficient to show reversible error. See Shaw v. Ruiz, 207 Ga. App. 299, 301 (5) (428 SE2d 98) (1993).

Judgment affirmed in part, reversed in part, and case remanded with direction:

Birdsong, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A95A2368.
    TOPEKA MACHINERY EXCHANGE, INC. v. STOLER INDUSTRIES, INC.
    (470 SE2d 250)
   Birdsong, Presiding Judge.

Topeka Machinery Exchange, Inc., appeals the judgment, based upon a jury verdict, in favor of defendant Stoler Industries, Inc., on Topeka Machinery’s claims against Stoler Industries and for $22,000 on Stoler Industries’ counterclaim against Topeka Machinery. The claims arose from the sale of equipment that was to be installed in Stoler Industries’ plant. These claims were tried jointly with the claims of Avtech Engineering, Inc., against Stoler Industries because the plaintiffs’ claims arose from the same transaction, i.e., Avtech Engineering installed the equipment that Topeka Machinery sold. Ultimately, the jury returned a defense verdict on Topeka Machinery’s claims and a verdict in favor of Avtech Engineering on its claims. Subsequently, however, the trial court granted a new trial in the Avtech Engineering case.

Topeka Machinery contends the trial court erred by excluding evidence concerning the usage of the trade that limited the warranties given; by prohibiting the admission of evidence that Topeka Machinery offered a full refund and invoked its rights to repair the equipment; by admitting, allegedly without proper foundation, Stoler Industries’ collective exhibit of 71 pages of bills, invoices, and other documents; by admitting opinion evidence regarding the value of the mill; and by denying Topeka Machinery’s motion for a new trial. The warranty in question stated that “Topeka Machinery Exchange will warrant the mill, drive, and motor for six months after delivery, or 60 days after start up.” Held:

1. Topeka Machinery’s first enumeration alleges the trial court abused its discretion by excluding evidence that usage in the trade limited the warranties given in this case to providing parts and labor to bring the item to satisfactory standards of performance and, if this was unsuccessful, to take back the item and refund the purchase price. The trial court excluded this evidence because it believed that under OCGA § 11-2-719 any modification or restitution on the remedy available for a breach of warranty must be in writing. We disagree. Under OCGA § 11-2-202 (a), Topeka Machinery could explain or supplement the warranty by parol evidence showing the usage of the trade (OCGA § 11-1-205 (2)). We find that the evidence which was excluded was therefore admissible. OCGA § 11-2-316 (3) (c). Apex Supply Co. v. Benbow Indus., 189 Ga. App. 598, 600 (376 SE2d 694). Accordingly, we find that the trial court erred by excluding this evidence; as we cannot say this error was harmless, the judgment must be reversed.

2. Because the evidentiary issues raised in the appeal may occur at retrial, we will address them here in the context of judicial economy.

Decided March 5, 1996

Reconsideration denied March 19, 1996

Ben B. Blackburn, Patrick J. Gibbs, for appellant.

Minor, Bell & Neal, Robert G. McCurry, Rickie L. Brown, for appellee.

(a) As the evidence regarding a refund and repair, which Topeka Machinery wished to introduce, was contained in an offer of compromise, the trial court did not abuse its discretion by excluding this evidence. OCGA § 24-3-37; Gibson v. Talley, 162 Ga. App. 303 (291 SE2d 72).

(b) Topeka Machinery also alleges the trial court erred by admitting a collective exhibit of 71 pages of bills, invoices, and other documents because a proper foundation was not laid. As this is in essence a contention that Stoler Industries did not show the evidence was relevant and issues concerning the relevancy of evidence are also committed to the discretion of the trial judge, we find no error. American Assn. of Cab Cos. v. Egeh, 205 Ga. App. 228, 229 (421 SE2d 741); Sleeth v. State, 197 Ga. App. 349 (3) (398 SE2d 298). The documents in question were sufficiently connected to the expenses incurred to repair and remedy the equipment at issue. Nevertheless, we perceive no utility in making the jury sift through duplicate copies of the documents, and, therefore, would expect that at retrial the duplicates would be removed.

(c) We also find no error in the admission of testimony concerning the value of the mill Topeka Machinery sold and Avtech Engineering installed. One of the witnesses who testified on this point was an expert on the subject, and the testimony was clearly admissible. OCGA § 24-9-66. As the second witness was the owner of the mill and a foundation was laid for his testimony, this testimony was also admissible. Schoolcraft v. DeKalb County, 126 Ga. App. 101 (189 SE2d 915).

Judgment reversed.

Johnson and Smith, JJ., concur.


author: Blackburn, Judge.

text:
    A96A0568.
    BETHEA v. THE STATE.
    (470 SE2d 328)
   Blackburn, Judge.

Dexter Pernell Bethea appeals his conviction for possession of cocaine with intent to distribute and obstruction of an officer. Pursuant to OCGA § 16-13-30 (d), he received a life sentence on the distribution charge with a one-year sentence on the obstruction charge to run concurrently.

Bethea asserts that the evidence was not sufficient to support his conviction. Viewing the evidence in the light most favorable to the verdict, two agents of the Lowndes-Valdosta Drug Task Force observed Bethea standing near a white pickup truck engaged in what appeared to be a drug transaction; however, they witnessed no money or drugs change hands. As the agents approached the truck, Bethea turned and began walking away. The agents then exited their vehicle and Bethea began to run. The occupants of the white pickup truck sped off and were not stopped or questioned. Officer Bob Kukua ran after Bethea and followed him into a nearby boarding house. Officer Kukua, who had been approximately six feet behind Bethea during the chase, caught Bethea inside a bedroom attempting to throw a solid white substance that appeared to be “half a cookie of crack cocaine” under the bed. An expert testified that the substance, consisting of 13 rocks, was indeed cocaine. Bethea struggled as Officer Kukua attempted to handcuff him even though Officer Kukua had identified himself as a police officer. On the evening in question, Officer Kukua was wearing the uniform customarily worn by members of the drug task force that included a badge star, a utility belt carrying a gun and handcuffs, and a hat that identified him as a “drug agent.”

1. The facts supporting the possession with intent to distribute conviction are virtually identical to those of a matter recently decided by this Court. See In the Interest of D. S., 216 Ga. App. 67 (453 SE2d 114) (1995). In that case, like the present matter, authorities observed the defendant standing next to a car, engaged in what they thought appeared to be a drug transaction although no money or drugs were seen changing hands. As the officers approached, they witnessed the defendant drop the cocaine on the ground. The defendant was arrested, but the occupants of the vehicle were not questioned. We found this evidence insufficient to permit a jury to infer the defendant’s intent to distribute the drugs stating that “[t]o support a conviction for possession of cocaine with intent to distribute, the State is required to prove more than mere possession.” Id. at 68.

Recently, this Court surveyed a number of different decisions addressing sufficiency issues in order to determine what evidence, in addition to possession, will permit a jury to infer a defendant’s intent to distribute drugs. James v. State, 214 Ga. App. 763 (449 SE2d 126) (1994). “We have reviewed several previous decisions of this court which have addressed the issue of the sufficiency of the evidence of the intent to distribute element of the offense, in an effort to ascertain what has been deemed to be sufficient evidence to support a conviction of possession with intent to distribute cocaine. In [Wright v. State, 154 Ga. App. 400 (268 SE2d 378) (1980)], a scale, plastic bags, coin envelopes and cash found on the appellant’s dresser were held to be sufficient indicia of intent to sell marijuana. In Williams v. State, 199 Ga. App. 544 (405 SE2d 539) (1991), cocaine was divided between more than 30 small glassine or clear plastic packages, this court held that the manner of packaging authorized an inference that appellant intended to distribute the contraband. In Sams v. State, 197 Ga. App. 201 (397 SE2d 751) (1990), evidence was presented regarding previous sales of cocaine made by appellant on the day of his arrest. Scales, drug paraphernalia, baking soda for cutting the cocaine, and a large amount of cash primarily in $20 bills were also found in appellant’s possession. Finally, in Davis v. State, 200 Ga. App. 44, 45 (2) (406 SE2d 555) (1991), evidence of a prior conviction of possession of cocaine with intent to distribute was introduced as a similar transaction. Additionally, the arresting officer in Davis was qualified as an expert witness on the ‘uses and activities of drugs on the street and how they are dealt.’ As an expert he was allowed to give his opinion [that the amount of cocaine found in the appellant’s possession] would generally be for distribution, as opposed to personal use. In all of these cases, competent evidence was offered which linked the possession of the cocaine to the enterprise of [the] sale.” James, supra at 764.

No such competent evidence exists in this case. No drug paraphernalia or large sums of money were found on Bethea. The cocaine did not appear to be packaged in any special manner for distribution. In fact, Officer Kukua noted that, at the time of the arrest, the solid cocaine was crumbling in Bethea’s hands and that it generally would be broken into smaller rocks for sale. Officer Kukua testified that the street value of the cocaine easily exceeded $500, but the State offered no evidence as to whether the amount of cocaine found in Bethea’s possession generally suggests a drug dealer as opposed to a drug user. See Davis v. State, 209 Ga. App. 572, 574 (434 SE2d 132) (1993) (expert evidence generally required to determine the amount of drugs one might normally possess for personal use or the amount that customarily evidences distribution). While the State did introduce evidence of Bethea’s prior guilty pleas for possession with the intent to distribute cocaine and sale of cocaine, this evidence was offered to impeach Bethea when he took the stand, not as evidence of similar transactions offered pursuant to the protections afforded a defendant by Uniform Superior Court Rule 31.3 whereby the jury could infer similar motive or bent of mind. See Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982) (“Evidence which is admissible for impeachment purposes only cannot serve as evidence in support of an essential factual contention.”) While the evidence in this case would clearly support a conviction on a charge of cocaine possession, it is not sufficient to support Bethea’s conviction of intent to distribute and thus, the conviction must be reversed.

Decided March 20, 1996.

Samuel F. Greneker, for appellant.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

2. We find the evidence sufficient to support the obstruction conviction pursuant to the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, Bethea’s conviction on that count is affirmed.

Judgment affirmed in part and reversed in part.

Beasley, C. J., and Birdsong, P. J., concur.


author: Judge Harold R. Banke.

text:
    A95A2095.
    GRISWELL et al. v. COLUMBUS FINANCE COMPANY.
    (470 SE2d 256)
   Judge Harold R. Banke.

Danny Zelinski appeals from the denial of his motion for new trial. His sole enumeration of error is that the court erred in granting a writ of possession as to a certain mobile home.

“In all proceedings in which the trial court sits without a jury, its findings of fact will not be disturbed on appeal if there is any evidence to support them. Collins v. Brayson Supply Co., 157 Ga. App. 438 (278 SE2d 87) (1981); [Cit.]” Arnold v. Farmers Bank of Union Point, 195 Ga. App. 328, 329 (393 SE2d 486) (1990). Reviewing the evidence in that light, the record shows the following. After Zelinski and the co-borrower, his mother, Jeanette Griswell, defaulted under the terms of a consumer installment note, Columbus Finance Company (“Columbus”) filed a petition for personal property foreclosure on the security. Pursuant to OCGA § 40-3-50, Columbus had a perfected security interest in a car and two mobile homes (a 1987 Cadillac Deville, a 1974 Checkmate mobile home and a 1985 Adventure mobile home). The certificates of title show Zelinski and Griswell as co-owners of the car and Griswell as sole owner of the two mobile homes. The trial court granted Columbus’ writ of possession and denied Zelinski’s motion for new trial.

1. We reject Zelinski’s spurious contention that the mobile home at issue was his principal dwelling and therefore not subject to personal property foreclosure. Except for mobile homes permanently attached to realty, mobile homes are personal property, not real property, and are governed by OCGA § 40-3-1, the Motor Vehicle Certificate of Title Act and OCGA § 11-9-101, the Uniform Commercial Code. See Wooden v. Michigan Nat. Bank, 117 Ga. App. 852 (162 SE2d 222) (1968).

Decided March 8, 1996

Reconsideration denied March 25, 1996.

Banks & Stubbs, Rafe Banks III, for appellants.

Richard B. Maner, David G. Crockett, for appellee.

Although Zelinski claims that the mobile home served as his principal residence and that he was required by the terms of the loan agreement to execute a deed to secure debt in favor of Columbus, the only evidence he offered that the mobile home was his principal dwelling and not subject to OCGA § 40-3-50, was the fact that he was served with the writ of possession at the same address listed on the installment loan for the mobile home at issue. Zelinski failed to provide any other evidence that the mobile home was his principal dwelling or that it was permanently affixed to real estate or even that he had any ownership interest in it at the time of the loan application. It follows that Zelinski could not have executed a deed to secure debt on property he did not own. The certificate of title to the mobile home in question reflected Griswell’s ownership and Columbus’ lien and by operation of law placed Zelinski on notice of Columbus’ lien and interest in the vehicle. See Anderson v. Kensington Mtg. &c. Corp., 166 Ga. App. 604 (305 SE2d 128) (1983). Therefore, Zelinski could not obtain any right, title or interest in the mobile home until the owner, Griswell, or Columbus delivered title properly executed. Anderson, 166 Ga. App. at 606.

Because the record shows Columbus had a perfected security interest in the mobile home at issue, Zelinski defaulted and Columbus was entitled to the security, the evidence supports the trial court’s decision. Collins, 157 Ga. App. at 438.

2. The evidence before the trial court showed Columbus had a perfected security interest in the subject mobile home, Zelinski defaulted on the terms of the loan and had no valid defense. This appeal has no merit and is totally frivolous. Therefore, we grant Columbus’ motion for sanctions and fine Zelinski $1,000, pursuant to Court of Appeals Rule 15 (b).

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


author: Beasley, Chief Judge.

text:
    A95A2292.
    SAXTON v. COASTAL DIALYSIS & MEDICAL CLINIC, INC.
    (470 SE2d 252)
   Beasley, Chief Judge.

1. On February 24, 1995, Coastal Dialysis & Medical Clinic, Inc. brought a complaint against Dr. Saxton to enforce a two-year non-compete covenant in the employment contract which had otherwise governed the parties’ relationship until Dr. Saxton’s resignation was accepted as of July 1, 1994. Coastal Dialysis sought interlocutory and permanent injunctions against breach of the covenant, damages in the alternative, and attorney fees and costs of litigation under OCGA § 13-6-11. At that time, the covenant had remaining 16 months of potential life.

The trial court held two hearings, received evidence and argument, and issued an interlocutory injunction on March 26, 1995. It ordered that the terms of the injunction were to remain in effect until further order but in no event later than June 30, 1996, when the covenant would expire. The court provided a certificate of immediate review pursuant to OCGA § 5-6-34 (b), which was filed April 3, and Dr. Saxton filed an application for interlocutory review in the Supreme Court of Georgia.

By order on April 20, the Supreme Court transferred the application to this Court on the basis that “the grant of equitable relief was merely ancillary to an underlying issue of law, i.e., whether the trial court properly construed the employment agreement, [so that, in the opinion of the Supreme Court] jurisdiction is properly in the Court of Appeals.” The Court cited its 1993 case of Pittman v. Harbin Clinic &c., 263 Ga. 66 (428 SE2d 328) (1993). That was a different kind of action, one that is entitled to direct appeal, a declaratory judgment action brought by several doctors who sought a declaration that the restrictive covenants were unenforceable. The trial court found the covenants valid and enforceable against two doctors and invalid and unenforceable against the other two doctors. Pittman v. Harbin Clinic &c., 210 Ga. App. 767 (437 SE2d 619) (1993). Direct appeals were taken by the losing parties and consolidated. Upon transfer of the appeals to this Court, it affirmed the judgment of the trial court on the merits and dismissed the cross-appeals. Id.

In this case, on April 24, immediately after the transfer of the application, Dr. Saxton filed a notice of direct appeal to this Court from the order on the interlocutory injunction, citing Pittman. While direct appeal was awaiting preparation of the record in the court below, this Court dismissed the application for interlocutory review on May 22 on the ground that the grant or denial of an interlocutory injunction is directly reviewable under OCGA § 5-6-34 (a) (4). The court cited Pizza Hut of America v. Kesler, 254 Ga. 360 (1) (329 SE2d 133) (1985), in which the Supreme Court applied OCGA § 5-6-34 (a) (4) and held that the grant of even a temporary injunction is directly appealable. The Supreme Court had jurisdiction of that case because it was an “equity case,” Ga. Const., Art. VI, Sec. VI, Par. Ill (2), and apparently, in the Supreme Court’s judgment, drew into question the validity of the injunction. Actually, the issue was whether the court could at the same time find appellants in contempt and fine the corporate defendant, not whether the injunction was proper.

The aspect of Dr. Saxton’s case which was directly reviewable, i.e., the grant of interlocutory injunction, was found by the Supreme Court to be “merely ancillary to an underlying issue of law, i.e., whether the trial court properly construed the employment agreement.” By transferring the application to this Court, the Supreme Court eliminated from review the foundation for direct appeal status under OCGA § 5-6-34 (a) (4), that is, the injunctive nature of relief granted. It also left for this Court the question of whether an application was the proper path for appeal. This Court held that it was not, for the very same reason the Supreme Court had used in concluding that it did not have jurisdiction of the matter. Thus we have the puzzle: the action is not an equity case for the purpose of invoking appellate jurisdiction because the issue raised on appeal is a legal one. That is the Supreme Court’s view, the reason given for transfer. On the other hand, the action was ruled to be an equity case for the purpose of access to appellate review by direct appeal to the Court of Appeals, even though the Court of Appeals does not have jurisdiction of “equity cases.” That was this Court’s view in ruling on the application. We are bound by it because it is the law of this case. OCGA § 9-11-60 (h); Jebco Ventures v. City of Smyrna, 259 Ga. 599, 601 (1) (385 SE2d 397) (1989). That is so even though the application and this direct appeal are technically two separate cases. We cannot close our eyes to the reality that they are in fact the same appeal.

However, in the future we will follow Auto Cash v. Hunt, 216 Ga. App. 239 (454 SE2d 162) (1995), which held that since this Court only had jurisdiction over the efficacy of the summary judgment denials and not over the equitable relief, compliance with the interlocutory appeal procedure was required under OCGA §§ 5-6-34 (b) and 9-11-56 (h). That direct appeal, which had been transferred to this Court by the Supreme Court, was dismissed on that basis.

Although the trial court’s ruling on the validity of the non-compete covenant was expressly interlocutory, requiring application to appeal, we must now proceed with the direct appeal because this Court had earlier dismissed the interlocutory application. We cannot rule that both paths are the wrong ones, leaving appellant with no avenue for appellate review for want of jurisdiction in the Supreme Court and in the Court of Appeals by any of the paths provided by statute. In accordance with Auto Cash, supra, future potential appellants must follow the method for appealing the ruling complained of. Until and unless the Supreme Court changes its view of the scope of the Constitution’s coverage of “all equity cases,” the nature of the order containing the underlying contested issues of law will govern the appellate path in the Court of Appeals.

2. The direct appeal was docketed in this Court on July 10, 1995, with almost one year of life left for the non-compete covenant which Dr. Saxon sought to have rejected as legally unenforceable. Oral arguments were requested and heard on September 8. We consider the merits of the appeal in its turn, there having been no motion to expedite the decision, despite the running of the clock. The interlocutory injunction has been in force in the interim, because OCGA § 9-11-62 (a) provides: “Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction . . . shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal.” See Howard v. Smith, 226 Ga. 850 (178 SE2d 159) (1970), which explains that this is an exception to the automatic supersedeas provisions of OCGA § 5-6-46. Because of the lumbering process which has tortured this appeal by dragging it along and bouncing it from court to court, the issues have nearly become moot. There are only four months left for the non-compete covenants to have any effect, if they are valid.

3. We turn, finally, to those questions.

Coastal Dialysis is a corporation operating a dialysis treatment facility in Savannah for kidney patients who have chronic renal disease. Saxton is a nephrologist who was employed by the corporation on a part-time basis as Assistant Medical Director and Assistant to the Chief Executive Officer, in addition to his primary profession and livelihood, practicing medicine. His medical office was in a different location than that of Coastal Dialysis. In theory, a patient of Saxton who needed dialysis could choose to obtain that service at Coastal Dialysis or at any available competing facility. In practice, the majority of Saxton’s patients over the years chose to obtain their treatment at Coastal Dialysis.

Dr. Saxton’s 1987 employment contract with Coastal Dialysis contained the following non-competition provision: “[D]uring the term of this Contract and a period of two (2) years following the termination of Employee’s employment under this Contract for any reason whatsoever (other than willful misconduct on the part of the Clinic), Employee shall not, in exchange for any financial consideration, benefit, directly or indirectly, (i) own, manage, operate, or control, (ii) participate in the ownership, management, operation, or control of or (iii) be employed in a medical or managerial capacity by, any clinic, facility, program or unit (other than that of Physician’s Health Care Services, Ltd., a Georgia corporation) which provides dialysis services and/or supplies to persons suffering from renal disorders. The geographical area in which the foregoing prohibition shall apply shall be limited to that area which is within a sixty (60) mile radius of City Hall, Savannah, Chatham County, Georgia.” Some patients receiving treatment at Coastal Dialysis come from outside the 60-mile radius, and there are other competing clinics located within the region.

The agreement expressly allows Dr. Saxton to practice medicine and even to be on staff at a hospital which provides dialysis services. He is free to refer and admit his patients at that hospital so long as his salary or compensation does not exceed $25,000 per year in exchange for his services or expertise in connection with the operation or management of the hospital’s renal disorder clinic.

At no time was he a shareholder or director of Coastal Dialysis but, by agreement, he did serve as the interim Chief Executive Officer and Physician Director for Coastal Dialysis a little less than a year. As the CEO, Dr. Saxton implemented all management decisions of the board of directors and was party to all management discussions.

After Dr. Saxton resigned effective July 1, 1994, he began taking several significant actions with a goal towards opening his own dialysis clinic in spring 1995. The suit and interlocutory injunction resulted.

Each of the arguments that Saxton has briefed in this Court was generally addressed by the trial court in its order. Saxton first argues the trial court erred in enforcing the non-compete clauses because they violate the rule of cases such as Puritan/Churchill Chem. Co. v. Eubank, 245 Ga. 334 (265 SE2d 16) (1980). It holds that a non-competition agreement will not be enforced when it restricts the scope of a former employee’s activities with a future rival employer more broadly than is necessary, the rationale being that the agreement should be no more restrictive than necessary to protect the legitimate business interest of the employer. Id. at 335. Although the court found Saxton’s contract to be drafted as broadly as possible, it also determined that “[i]n the unusual circumstances of this case, the court finds that the unusually broad and iron-clad restrictions are reasonable,” because the “shareholders entrusted all aspects of their business to Dr. Saxton. . . . Because of that experience, and the information and expertise gained thereby, it was reasonable, in terms of the interests to be protected, to prohibit him temporarily from any employment (or ownership) in any capacity with a local competitor.” This finding is fully supported by the record and the law. See Johnson v. Lee, 243 Ga. 864, 866 (257 SE2d 273) (1979).

Decided March 7, 1996

Reconsideration denied March 25, 1996

Saxton also argues that, contrary to the court’s factual finding, he had access to no confidential information. The record shows otherwise.

He next argues that the geographic boundaries are unreasonable, in that it was beyond the legitimate business interest of Coastal Dialysis to have the restrictive covenant govern an area greater than Savannah. However, the evidence presented at the hearing indicated that Coastal Dialysis attracted patients from throughout the restricted area.

Dr. Saxton contends the court erred in refusing to find that Coastal Dialysis breached the employment agreement by not paying Saxton beyond May 25, 1994 to July 1, 1994. But the uncontroverted evidence at the hearing was that Saxton told Coastal Dialysis’ general counsel that he only wanted to be paid through May 25, 1994.

He also argues that the duration of two years is “questionable,” in that the public’s interests in having convenient dialysis centers requires that the covenant be as short as possible. This argument was expressly rejected in Rash v. Toccoa Clinic Med. Assoc., 253 Ga. 322, 326 (3) (320 SE2d 170) (1984).

Saxton maintains that Coastal Dialysis had an adequate remedy at law, although he does not include it among his enumerations of error. However, an injunction will lie in restrictive covenant cases even where damages are also sought. Nat. Settlement Assoc. of Ga. v. Creel, 256 Ga. 329, 332 (4) (349 SE2d 177) (1986).

Finally, Dr. Saxton urges that the employment contract was illegal. OCGA § 13-8-1. He cites no legal authority or facts to support this contention, other than Dr. Saxton’s testimony that it constituted “fraud and abuse.” This enumeration is also without merit.

Enforcement of the covenant is not error.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

Royal & Vaughan, J. Scott Vaughan, for appellant.

Ellis, Painter, Ratterree & Bart, Paul W. Painter, Jr., for appellee.

       He also filed a notice of appeal to the Supreme Court pursuant to OCGA § 5-6-34 (a) (4), which allows direct appeals from the grant or denial of interlocutory or final injunctions, resorting to the application method “out of an abundance of caution” because the trial court had issued a certificate for immediate review of an interlocutory ruling.

       In the meantime, Coastal Dialysis filed an application for finding of civil contempt on June 9, 1995, in which it contended that Dr. Saxton had violated and was continuing to violate the injunction. Th'e application was denied by the trial court after an evidentiary hearing, the order was certified for immediate review, application for interlocutory appeal was made to and denied by this Court, and the Supreme Court denied a petition for certiorari.


text:
    A96A0067.
    THE STATE v. GOLUB.
    (470 SE2d 331)
   Birdsong, Presiding Judge.

Appellee Joseph Golub, Jr. is charged with one count of DUI in violation of OCGA § 40-6-391 and one count of driving without headlights in violation of OCGA § 40-8-20. The State appeals the trial court’s order granting appellee’s motion in limine to suppress evidence of appellee’s refusal to submit to a state-administered chemical breath test. Appellee’s motion was grounded upon a claim that he was not properly advised of his implied consent rights pursuant to OCGA § 40-5-67.1. The trial court relied upon Martin v. State, 217 Ga. App. 860 (460 SE2d 92), which held that the April 1995 statutory amendment to OCGA § 40-5-67.1 (requiring the reading of precise implied consent language at the time a chemical test or tests are requested) was to be applied to all cases pending at the time the amendment was approved by the governor, that is, April 21, 1995. However, by further statutory amendment, effective August 18, 1995, OCGA § 40-5-67.1 was modified to provide inter alia that the new implied consent warning requirement would apply only as to “an offense committed on or after April 21, 1995.” Held:

In State v. Martin, 266 Ga. 244 (466 SE2d 216), our holding in Martin v. State, supra, was reversed and the provisions of the August 18, 1995 amendment were found to be valid. Therein the Supreme Court determined that while the Martin opinion was correct at the time it issued, the subsequent August amendment was retroactive and should be applied.

Specifically, the August amendment was found (1) not to violate federal or state ex post facto constitutional provisions; (2) not to violate the uniformity provisions of the Georgia Constitution; (3) not to violate state constitutional provisions prohibiting special laws relating to the rights or status of private parties; and (4) not to violate federal or state equal protection rights. State v. Martin, supra at Divisions 3-6.

As the trial court based its grant of the motion in limine suppressing the evidence at issue on this Court’s holding in Martin v. State, supra, judgment must be reversed and the case remanded for further consideration by the trial court consistent with the holding in State v. Martin, supra. See also Howard v. State, 219 Ga. App. 228 (465 SE2d 281). In reconsidering this issue, the trial court is to be guided by the law applicable to implied consent warnings in situations where the request for testing is made regarding an offense occurring before April 21,1995, including inter alia that a suspect is not entitled to a warning which tracks the exact language of the implied consent statute; the sufficiency of the warning is to be judged by its content and not its form; and the warning must inform the suspect that he could have an additional test by a qualified person of his own choosing. Howard v. State, supra at 230, and cases cited therein.

Decided March 25, 1996.

Kenneth W. Mauldin, Solicitor, Tracy D. Stephens, Assistant Solicitor, Ethelyn N. Simpson, for appellant.

Joel N. Shiver, for appellee.

Judgment reversed and case remanded.

Beasley, C. J., and Blackburn, J., concur.


text:
    A95A2026.
    SEIBERS et al. v. DIXIE SPEEDWAY, INC.
    (470 SE2d 452)
   Judge Harold R. Banke.

V. Edward Seibers and M. Sue Seibers sued Dixie Speedway, Inc. (“Dixie”) for negligence after the former sustained head injuries at the racetrack. They appeal the trial court’s grant of summary judgment to Dixie, enumerating nine errors.

The evidence, viewed in the light most favorable to the Seibers, shows that Edward Seibers struck his head against a wall and temporarily lost consciousness after engaging in horseplay which apparently escalated into a fight with third-party defendant Rusty Craig. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Several off-duty uniformed deputies working security for Dixie monitored the gathering crowd and took Craig to another part of the track. After paramedics administered first aid, Seibers regained consciousness, but he had difficulty sitting and speaking, his eyes dilated, and his head began to swell. Paramedics and others advised the deputies that Seibers needed immediate medical attention, but they purportedly threatened to arrest Seibers and his friends and refused to let Seibers leave. Holding Seibers by each arm, the deputies eventually escorted Seibers to another area where he and Craig shook hands. At that point, Seibers’ friends convinced the deputies to release him. The record shows that Dixie had a policy or practice of trying to get those involved in altercations to resolve their disputes before leaving the raceway. The record also shows that the deputies may have detained Seibers for as long as two hours before he and Craig shook hands. Seibers subsequently required emergency brain surgery, lapsed into a coma, and is presently unable to work.

The gravamen of the complaint is that Dixie’s employees negligently prevented Seibers from seeking immediate medical care, thereby exacerbating his injuries. The trial court based its decision to grant Dixie’s motion for summary judgment on findings that (1) the deputies were independent contractors; (2) Dixie did not proximately cause the injury; (3) Seibers assumed the risk of injury; (4) comparative negligence barred the action; and (5) a release and waiver of liability Seibers signed before participating in a race prior to his injury barred the action.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the non-movant, warrant summary judgment as a matter of law. Lau’s Corn., 261 Ga. at 491. Held:

1. The trial court erred in finding that no issues remained to be tried on the independent contractor issue. Although as a general rule, employers are not responsible under the theory of respondeat superior for the torts of independent contractors, if an employer controls the time, manner, and method of executing the work, an employer-employee relationship exists and liability will attach. McDaniel v. Peterborough Cablevision, Ltd., 206 Ga. App. 437, 438 (425 SE2d 424) (1992). In cases involving off-duty police officers working for private employers, however, the employer escapes liability if the officer was performing police duties which the employer did not direct when the cause of action arose. Pounds v. Central of Ga. R., 142 Ga. 415 (83 SE 96) (1914).

Genuine issues of fact remain to be tried on the extent to which Dixie controlled the off-duty deputies’ actions. The record shows that Dixie’s head of security told the deputies what to wear, when to report, where to stand, what to do, and the deputies received W-2 tax forms from Dixie. Furthermore, the record raises the issue of whether some of Dixie’s in-house security personnel who were not off-duty deputies were involved in this incident.

Questions also remain as to whether the officers were performing official police functions during the entire period at issue — the officers made no arrests and by the time they arrived the fighting had stopped; Seibers was obviously injured and unable to continue the altercation, and Craig had backed away. Facilitating apologies between combatants is not necessarily acting within the realm of police functions, particularly when it purportedly prevents one from receiving medical treatment. Furthermore, issues of fact remain as to whether the cause of action arose while the deputies were implementing Dixie’s own policy of resolving altercations before those involved left the premises.

2. Notwithstanding the trial court’s finding on the proximate cause of Seibers’ initial injury, that issue is irrelevant to this action. The controlling issue is whether the alleged delay in treatment caused by the deputies or Dixie’s other security personnel’s involvement worsened the existing injury. In light of the severity of Seibers’ symptoms, Dixie’s employees purported knowledge of his need for medical attention, and the deputies’ alleged threats to arrest Seibers’ friends for begging to take him to the hospital, a jury must decide whether it was reasonably foreseeable that further harm would result from such a delay.

3. The trial court also erred in its finding on assumption of the risk. That theory would not foreclose liability arising from the alleged unforeseeable delay in treatment caused by Dixie’s employees. “Assumption of the risk . . . means that a plaintiff ‘has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk.’ [Cit.]” Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 116 (3) (c) (372 SE2d 265) (1988). The record contains no undisputed proof of such consent or that Seibers knew or could have known that he faced the risk of delayed treatment due to the deputies’ actions.

4. Nor is Seibers’ claim precluded under a comparative negligence theory. The evidence on the length, cause, foreseeability, and reasonableness of the delay in treatment is conflicting. Because such disputed issues of fact remain to be tried, we find Dixie failed to satisfy its burden of proof on this defense. Issues of negligence and assumption of the risk ordinarily are not susceptible to summary adjudication. Sapp v. Effingham County Bd. of Ed., 200 Ga. App. 695, 696 (409 SE2d 89) (1991).

5. The trial court further erred in finding that a release and waiver of liability Seibers allegedly signed before he participated in a race on the evening he was injured barred this action. Because none of the five releases included in the record is dated August 30, 1992, the night the injury occurred, and Seibers has no memory of signing a release, the evidence is insufficient to support summary judgment. Moreover, the record includes testimony that drivers were not always required to sign such releases.

6. In light of these findings, we need not reach the Seibers’ remaining enumerations. Accordingly, this case is reversed and remanded for proceedings consistent with this opinion.

Judgment reversed and case remanded.

McMurray, P. J., and Blackburn, J., concur.

Decided March 11, 1996

Reconsideration denied March 26, 1996

Steven L. Beard, for appellants.

Drew, Eckl & Farnham, Robert L. Welch, John P. Reale, Peter A. Law, for appellee.

       Seibers explicitly abandoned his claim that Dixie negligently allowed the assault.


author: Smith, Judge.

text:
    A95A2263.
    FLOWERS v. THE STATE.
    (468 SE2d 199)
   Smith, Judge.

Johnny “Tico” Flowers was indicted on two counts of child molestation, OCGA § 16-6-4 (a), three counts of aggravated child molestation, OCGA § 16-6-4 (c), one count of incest, OCGA § 16-6-22, and two counts of sodomy, OCGA § 16-6-2. He was convicted of three counts of sexual battery, one count of fornication, and three counts of aggravated child molestation. (This trial was the second trial, the first ending in a mistrial due to a hung jury.) His motion for new trial was denied, and he appeals.

1. Flowers contends the evidence was insufficient to enable the jury to convict him of the crimes for which he was convicted. We disagree. Construed to support the verdict, evidence was presented that when J. R., the victim and Flowers’s stepdaughter, was around age ten, Flowers rubbed her “bottom,” breasts, and vagina, an act that occurred frequently over the next years, both before and after J. R. reached the age of fourteen. J. R. testified that vaginal intercourse began when she was around age 11 and continued until after she reached age 14, and that anal intercourse and sodomy with Flowers began when she was 13 or 14 and continued until after age 14.

While J. R. admitted she did not report the alleged incidents at home, school, or church until April 1992, some time after the alleged events occurred, her delay in reporting the incidents affects only her credibility. Similarly, testimony of the physician who examined J. R. that he found no pelvic abnormalities or evidence of scarring or tearing around the vagina or rectum and that J. R. had been “sexually active” affects only J. R.’s credibility. Although Flowers challenges J. R.’s credibility on appeal, “the weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the triers of fact to determine to what evidence [they give] credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.” (Citations and punctuation omitted.) Royal v. State, 217 Ga. App. 459, 460 (1) (458 SE2d 366) (1995). As in Roberson v. State, 214 Ga. App. 208 (447 SE2d 640) (1994), the evidence adduced at trial, though not overwhelming, was sufficient to authorize a rational trier of fact to find Flowers guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. While we find sufficient evidence existed to enable a rational trier of fact to find Flowers guilty beyond a reasonable doubt under the standard of Jackson v. Virginia, we find the trial court erroneously admitted expert testimony that improperly bolstered the victim’s testimony. We therefore must reverse.

One of the State’s witnesses, a former child and adolescent counselor, described the “credibility enhancement technique” used to substantiate allegations of sexual abuse. She testified that a determina-, tion regarding the truthfulness of an alleged abuse victim depended on whether she observed the presence of five criteria as a result of interviewing the victim: (1) evidence that multiple sexual incidents had occurred over time; (2) observations that a progression of sexual activities had occurred; (3) observations that the incidents were kept secret; (4) observations that coercion was involved with the incidents; and (5) provision by the alleged victim of explicit details of sexual behavior. She stated, “If an allegation meets all five of the criteria, then we say that meets all of the information that we have that says, yes, sexual abuse did occur.” She then described her observations regarding each of the criteria. Although she did not directly state she believed J. R. to have been truthful, the witness did testify that all five criteria were met by J. R. The witness’s testimony thus established that she believed J. R. to have been telling the truth. A witness’s credibility cannot be bolstered by another’s testimony that the witness is telling the truth. “An expert witness may not testify as to his opinion of an ultimate issue of fact unless the inference to be drawn from the evidence is beyond the ken of the jurors. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury. OCGA § 24-9-80. An expert witness may not testify as to his opinion of the victim’s truthfulness.” (Citations and punctuation omitted.) Roberson v. State, 214 Ga. App. at 210 (4), supra. See also Smith v. State, 259 Ga. 135, 138 (2) (377 SE2d 158) (1989). Because the essence of the expert’s testimony was that she believed J. R. to be telling the truth, her testimony was impermissible.

We recognize that in Stamey v. State, 194 Ga. App. 305 (390 SE2d 409) (1990), we found testimony regarding “credibility patterns” of a young sexual abuse victim to be “offensive” but not “a significant addition to [the expert’s] main testimony, so as to displace the jury’s minds on the issue and usurp their authority.” Id. at 306. Stamey, however, was a decision by a single three-judge division of this Court with two of those judges concurring specially. For that reason, it is a physical precedent only, and we are not bound by it. Court of Appeals Rule 33 (a). Also, this case differs in a substantive way from Stamey. In Stamey, the evidence against the defendant was overwhelming. See also Moss v. State, 216 Ga. App. 711, 713-714 (455 SE2d 411) (1995) (challenged testimony, even if objectionable, would not have changed guilty verdict). Here, as noted in Division 1, the evidence against Flowers, like that in Roberson, “was not overwhelming and credibility of the witnesses was a key issue in the case.” 214 Ga. App. at 210. Moreover, unlike Stamey, testimony regarding the “credibility enhancement technique” was not merely an insignificant addition to the expert’s main testimony as to J. R.’s credibility but was a major focus of her testimony. The trial court erred in admitting evidence of the “credibility enhancement technique” and in denying Flowers’s motion for new trial on this basis.

3. Because other errors enumerated by Flowers may recur on retrial, we address them here. Flowers was not present at the hearing on admission of similar transactions, and his trial counsel stated at the hearing, “I’ll waive his presence.” The trial court made no further inquiry about Flowers’s absence. Because a similar transactions hearing may be evidentiary, Flowers’s presence will be required, unless Flowers himself expressly waives his presence at the hearing. See generally McGinnis v. State, 208 Ga. App. 354, 357 (4) (430 SE2d 618) (1993).

4. Flowers contends a videotape of J. R.’s statement was erroneously admitted under the Child Hearsay Statute, OCGA § 24-3-16. It is undisputed that J. R. was 16 when she made the statement and that the Child Hearsay Statute applies to statements made by a child under 14, provided certain criteria are met. The statute therefore is inapplicable. Without ruling on the admissibility of the tape, we note that hearsay concerns about the videotape may be satisfied if J. R. is under oath and subject to cross-examination regarding her statement. See Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).

5. Flowers complains of the trial court’s refusal to admit testimony regarding sexual conduct of the victim “which would have presented an alternative explanation . . . that there was sexual penetration.” Such evidence is inadmissible under OCGA § 24-2-3, unless the evidence falls within the narrow confines of subsection (c) of that provision.

Decided February 20, 1996

Reconsideration denied March 26, 1996

Peters, Townsend, Wilson & Roberts, R. Stephen Roberts, J. M. Raffauf, for appellant.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.

6. Flowers complains the trial court failed to properly recharge the jury after the jury asked for “clarification of lesser charges, sexual battery and fornication.” The court recharged the jury that a lesser included offense of child molestation and incest was fornication and defined the offense of fornication. The court also charged that a lesser included offense of all counts was sexual battery and defined sexual battery. This charge was incorrect. Sexual battery is not a lesser included offense of child molestation. Shepherd v. State, 217 Ga. App. 893 (459 SE2d 608) (1995) (but see special concurrences arguing that sexual battery is a lesser included offense of child molestation). The charge should not be given upon retrial. See also Perkins v. State, 212 Ga. App. 225, 227 (441 SE2d 511) (1994); Duck v. State, 210 Ga. App. 205, 207-208 (4) (435 SE2d 725) (1993).

7. Flowers contends the State failed to prove that the crimes occurred within the applicable statutes of limitation, that the trial court entered a conviction despite this failure of proof, and that the trial court erroneously failed to charge on the applicable statutes of limitation. On retrial, it will be the State’s burden to prove that the charged crimes occurred within the applicable limitation periods. If the evidence raises statute of limitation issues, the trial court should charge the applicable law regarding the appropriate limitation periods. See generally Blankenship v. West Ga. Plumbing Supply, 213 Ga. App. 275, 277 (444 SE2d 596) (1994): “It is the duty of the trial court to charge the jury on the law applicable to the issues where there is any evidence on which to predicate the instructions.” (Citations and punctuation omitted.)

8. Flowers’s contentions regarding effectiveness of counsel are moot in light of our holding in Division 2.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

       We make no ruling here whether the alleged similar transactions are admissible, as that determination depends on the evidence adduced at the hearing conducted by the trial court in accordance with Uniform Superior Court Rule 31.3 and Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). But with regard to Flowers’s contention about the availability of a child witness, if the trial court determines similar transaction evidence is admissible, we note that “a child witness is ‘available’ for purposes of the Child Hearsay Statute as long as the child is physically available to appear at trial. [Cits.]” Gibby v. State, 213 Ga. App. 20, 22 (2) (d) (443 SE2d 852) (1994).


author: McMurray, Presiding Judge.

text:
    A95A2461.
    MORRIS v. THE STATE.
    (470 SE2d 458)
   McMurray, Presiding Judge.

Defendant Morris appeals his conviction of the offenses of trafficking in cocaine and of giving a false name to a law enforcement officer. Held:

This drug case involves an airport arrest of an in-transit airline passenger and the subsequent search of his baggage. The three enumerations of error complain of the denial of defendant’s motion to suppress the contraband seized in the search of the baggage.

After receiving information that an individual traveling on a one-way cash ticket from a drug source city (Los Angeles) would be changing airplanes at the Atlanta airport, agents of the drug task force made plans to meet that individual’s flight. The agents obtained a copy of the passenger name record and called the Los Angeles callback number given by passenger Timothy Johnson, getting an answering machine. The agents later discovered that the voice of the passenger traveling as Timothy Johnson did not sound like the voice on the recording.

After defendant deplaned and asked for directions to his connecting flight, he was approached by two special agents who showed their credentials and asked to speak to him. Defendant consented to speak to the agents and pursuant to their request presented his ticket in the name of Timothy Johnson. In response to an agent’s query, defendant also stated that his name was Timothy Johnson.

One of the agents inquired as to the purpose for the trip, asking whether the trip was for business or pleasure, and was told that the purpose of the trip was business. Further inquiry revealed that the purpose of the trip was to visit a sick grandmother. The State maintains that the clarification amounts to a contradiction of the original statement that the trip was for business rather than pleasure. Indeed, one of the special agents testified at the motion to suppress hearing that he viewed a trip to visit a sick grandmother as a pleasure trip. But we question whether the semantics employed by the special agent are universally or even generally accepted.

In response to the agent’s inquiries, defendant stated that he did not have any identification on his person and that he had left his identification at the airport in a car. The State takes great care to note that in one instance the special agent testified that the defendant had stated that he left his identification in “his” car and cites this as a reasonable basis for the agent understanding this to be an indication that defendant had driven himself to the airport. The agent then perceived another contradiction in defendant’s statements when defendant responded to further questions that he had never had a driver’s license and that a friend had driven him to the airport. But almost immediately thereafter and in a sentence containing substantially the same phrases he had used before, the agent testified that the defendant said he left his identification in “the” car. Despite the attempts of the prosecuting attorney in his argument to the superior court to emphasize the version of this testimony more favorable to the State, there was no attempt to resolve this conflict in the agent’s testimony concerning the words used by defendant.

After this conversation, the agents explained their purpose in attempting to stop the drugs from coming through the airport and asked permission to search his person and bag. Defendant denied this permission, telling the agents that they could search only if they had a search warrant. Based on this lack of cooperation and the information they had at that time, the agents decided to detain defendant’s baggage in order to permit a drug dog to sniff it. At the time this was explained to defendant, the consensual nature of the transaction between defendant and the drug agents must be viewed as having terminated and the question arises as to whether the agents had that articulable suspicion which would authorize a seizure pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889).

The articulable suspicion which will authorize a Terry stop has been defined as whether under the totality of the circumstances the law enforcement officer has “ ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).” Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474). Apart from the jousting with regard to semantics at the motion to suppress hearing, the evidence established that defendant was traveling on a one-way cash ticket from a drug source city, had little baggage in relation to the distance of his journey and the intended length of his stay, lacked any identification, and was stern and nervous when approached by the officers. None of this is a crime, but taken together it provided the agents with a reasonable suspicion that defendant was transporting contraband. State v. Grant, 195 Ga. App. 859, 862 (2) (394 SE2d 916). We also acknowledge defendant’s reliance on the recent decision in United States v. Torres, 65 F3d 1241, holding that a seizure of the baggage of a train passenger under similar circumstances was unconstitutional, but conclude that this federal case is not persuasive here because predicated in part upon the unexplained proposition that paying in cash for a train ticket for a trip of the length from New York to Burlington, North Carolina is not inherently suspicious as might be paying in cash for an airline ticket for a trip of the same length.

Although this articulable suspicion authorized a brief seizure of defendant, the agents expressed intent at this point was to seize only defendant’s baggage, an unchecked middle-sized overnight bag. While defendant argues that seizure of the bag under these circumstances was equivalent to a seizure of the person, we need not decide the merits of that argument since, assuming it to be correct, the agents did not exceed their authority arising from the articulable suspicion that defendant was carrying contraband.

Decided March 12, 1996

Reconsideration denied March 26, 1996

David S. West, Bruce S. Harvey, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

An agent proceeded to question defendant concerning his birthday and social security number and when defendant was unable to accurately repeat the numbers given in the first response to these questions, defendant was arrested for giving a false name to a law enforcement officer. Contrary to defendant’s assertion we find that the defendant’s failure to accurately repeat the birthday and the social security number was sufficient evidence of a false identity as to provide probable cause for this arrest. Nor do we find any evidence requiring a conclusion that the arrest was pretextual. Stanley v. State, 213 Ga. App. 95, 96-97 (443 SE2d 633).

Rather than immediately conduct a search of defendant’s bag, the agents waited until a drug dog alerted on the bag during a “lineup” of luggage and used that information along with the above factors prompting the use of a drug dog in an affidavit to obtain a search warrant for the bag. Defendant’s final enumeration of error maintains that there was insufficient probable cause established before the magistrate for the issuance of the search warrant. But we need not address this issue since the uncontroverted evidence shows that even in the absence of the search warrant, the contraband would have inevitably been discovered via an independent and proper source, a custodial inventory of the bag. Davis v. State, 262 Ga. 578, 583 (4) (422 SE2d 546); Dorsey v. State, 212 Ga. App. 479, 481 (2) (441 SE2d 891); State v. Wright, 204 Ga. App. 382, 383 (2) (419 SE2d 334).

Judgment affirmed.

Andrews, J., concurs. Blackburn, J., concurs in the judgment only.


author: Andrews, Judge.

text:
    A95A2492.
    RODGERS v. FIRST UNION NATIONAL BANK OF GEORGIA.
    (470 SE2d 246)
   Andrews, Judge.

First Union National Bank of Georgia (“First Union”) sued Patrick St. E. Rodgers, the guarantor of two notes, when the corporation of which he was president defaulted on its payments. The trial court granted summary judgment in favor of First Union on the issue of liability but determined that First Union failed to prove the exact amount Rodgers owed. For the reasons that follow, we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows the following. Rodgers formed a corporation, Maitland Grove, Inc. (“Maitland”) to develop certain real property into a subdivision. As president of Maitland, Rodgers executed a note and security agreement in favor of First Union in the principal amount of $1,950,000. Rodgers later executed a second note to First Union for $300,000. Rodgers executed an unconditional personal guaranty for the payment of all debts owed to First Union by Maitland including both notes. After Maitland defaulted on both notes, First Union demanded Rodgers make repayment, plus interest and attorney fees. At foreclosure, First Union acquired the real property for $1,700,000, resold the property for less than the foreclosure price, and then sued Rodgers for the deficiency.

In his answer, Rodgers admitted that he had “not tendered any amount to Plaintiff per its demand.” Rodgers raised no counterclaims but offered four defenses: failure to state a claim, estoppel, a contention that OCGA § 44-14-161 precluded the suit because the confirmation order was not final, and an alleged violation of 15 USC § 1691 et seq. and 12 CFR § 202.7 (d).

1. Rodgers contends the trial court erroneously granted summary judgment because the guarantor contract was void, First Union illegally took control of the development project prior to foreclosure and First Union “chilled the market” causing the destruction of Maitland.

Rodgers’ admissions that he executed the two notes and had not paid First Union the amount it demanded established First Union’s prima facie right to the judgment sought, and Rodgers then had the burden of establishing any claimed defense. Brooks v. McCorkle, 174 Ga. App. 132 (329 SE2d 214) (1985). “When signatures [on a negotiable instrument] are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” OCGA § 11-3-307 (2). Because the evidence indisputably shows that First Union established a prima facie right to the judgment it sought on the notes, we need examine only whether Rodgers raised any defense to preclude summary judgment.

(a) First we address whether as a matter of law the guaranty could be deemed void due to the violation of applicable federal laws and regulations. Rodgers specifically argues that First Union’s requirement that he personally guarantee Maitland’s notes while failing to make a preliminary determination of the creditworthiness of Maitland was racially discriminatory.

Rodgers executed the guaranty in December 1988, and in June 1992 invoked an alleged violation of 15 USC § 1691, the Equal Credit Opportunity Act (“ECOA”), and 12 CFR § 202.7 (d) as a general defense to First Union’s suit. Even if this defense had factual support, it was barred as a matter of law for procedural and statute of limitation reasons. An alleged violation of 15 USC § 1691 et seq. and 12 CFR 202.7 (d) (1) cannot be asserted as an affirmative defense to void a guaranty, but only as a compulsory counterclaim. See CMF Virginia Land, L.P. v. Brinson, 806 FSupp. 90, 93 (E.D. Va. 1992) (holding the ECOA, 15 USC § 1691 et seq., is not properly asserted as an affirmative defense to liability and cannot, as a matter of law, render a debt void); and Diamond v. Union Bank & Trust, 776 FSupp. 542 (N.D. Okla. 1991) (holding no authority in statutory language or case law, for the proposition that a violation of the ECOA renders an instrument void).

Even if Rodgers had asserted an alleged violation of the ECOA as a counterclaim, such claim was barred by the applicable statute of limitation, under 15 USC § 1691e (f), “[n]o . . . action shall be brought later than two years from the date of the occurrence of the violation.” Rodgers had two years from December 1988 when he signed the guarantor agreement to file a complaint. Rodgers argues an exception to the two-year limit was permitted in Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F3d 28 (3rd Cir. 1995) (holding exception to two-year statute of limitation possible where guarantor spouse raises violation of the ECOA at her first opportunity as defense to recoupment). However, this Court is not bound by decisions of other states or federal courts except the United States Supreme Court, and we do not find the reasoning in Silverman persuasive. T. G. Stegall Trucking Co. v. Tower Lines, 135 Ga. App. 286, 288 (5) (217 SE2d 488) (1975). Thus, the trial court correctly determined that as a matter of law the guaranty was not void.

(b) Rodgers contends that there is an unresolved issue of material fact as to whether First Union’s requirement that he personally guarantee Maitland’s notes was racially discriminatory.

In support of its summary judgment motion, First Union offered evidence showing that it treated Rodgers exactly the same as any other individual pursuing a real estate development project. First Union’s vice president of its special assets division, who oversaw problem credits like Maitland, testified that in her mind, “Rodgers was Maitland.” In fact, when Rodgers initially applied for the nearly $2 million loan, he listed himself as the borrower d/b/a Maitland Grove, Inc. First Union’s manager of its real estate credit administration division testified that most real estate development projects, like Maitland, are usually formed for the limited purpose of acquiring property and usually do not have proven track records or retained earnings. He testified that it was First Union’s standard banking practice to require a personal guaranty from the primary player or the main individual behind a corporation undertaking such a real estate development project.

To avoid summary judgment on this issue, Rodgers could not rest on his pleadings but had to come forward with some evidence. Yet Rodgers offered not a shred of evidence that he was discriminated against by being required to personally guarantee the money he wanted to borrow for his corporation. In fact, 12 CFR § 202.7 (d), upon which he relies, allows a creditor to require a personal guaranty where necessary to support the extension of credit.

At summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to the evidence in the record, as First Union did here, that there is an absence of evidence to support at least one essential element of the non-moving party’s case. Lau’s Corp., 261 Ga. at 495. Accordingly, we are unable to find merit to this enumeration.

(c) Rodgers claims that First Union tortiously interfered with Maitland by undertaking an active role in the subdivision development project and thereby became liable for the less than desirable results. Rodgers contends that First Union prematurely revealed to area builders that his project was in financial trouble, thereby impeding Maitland’s prospective sales. We note that Rodgers failed to raise this claim as a counterclaim and merely listed it as a general defense and offers no authority for doing so.

Moreover, in opposition to summary judgment, Rodgers presented no evidence other than his own affidavit that First Union tortiously interfered in the operation of his business or “chilled the market.” To prove tortious interference with business relations, Rodgers would have to prove that First Union acted improperly and without privilege, acted purposely with malice and the intent to injure, induced a third party or parties not to enter into or continue a business relationship with Maitland, and thereby caused some financial injury. Life Care Ambulance v. Hosp. Auth. of Gwinnett County, 202 Ga. App. 864, 868 (415 SE2d 502) (1992).

Decided March 6, 1996

Reconsideration denied March 26, 1996

Albert A. Chapar, Jr., for appellant.

Glass, McCullough, Sherrill & Harrold, R. Phillip Shinall III, Bryan A. Downs, for appellee.

The evidence shows that Maitland ran over budget, was delayed due to abnormally heavy rains, and experienced problems with the county releasing building permits due to Maitland’s maintenance deficiencies and Maitland’s failure to make certain repairs. None of these problems was in any way due to any action of First Union. Prior to foreclosure when Maitland was experiencing problems, First Union’s officials tried to aid Rodgers and deliberately delayed foreclosure in an effort to arrange some assistance for Rodgers. Even assuming that Rodgers could supply evidence of First Union’s interference with the operation of Maitland, and we note he has failed to do so, the record shows that Rodgers did not set forth the elements of any cognizable claim. Certainly, he failed to provide any evidence of malice or an intent to harm Maitland. Life Care Ambulance, 202 Ga. App. at 868.

2. Rodgers contends that the trial court erred by finding the contract provided for attorney fees of 15 percent of the total amount because the guaranty provides only for the reasonable attorney fees actually incurred by First Union.

The guaranty at issue provides the following, “Guarantor [Rodgers] expressly hereby agrees to pay all legal expenses and the reasonable attorneys’ fees actually incurred by First Union National Bank. Guarantor hereby stipulates and agrees that 15% of the total amount(s) due hereunder and remaining unpaid shall be deemed to be the ‘reasonable attorneys’ fees.’ ” Rodgers contends that only the first sentence is applicable and that he is responsible, if at all, for only the reasonable attorney fees actually incurred by First Union. First Union counters that the second sentence is binding and seeks to recover 15 percent of the total balance. We agree with First Union and do not find the two sentences ambiguous when construed together. OCGA § 13-1-11 (a) (1) authorizes the recovery of attorney fees not in excess of 15 percent of the principal and interest owing on a note, and First Union does not seek to recover more than the statute permits.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Pope, Presiding Judge.

text:
    A95A2605.
    MAYO v. FULTON COUNTY et al.
    (470 SE2d 258)
   Pope, Presiding Judge.

Fulton County Sheriff Jacqueline Barrett terminated Deputy Sheriff Melvin Mayo after Mayo tested positive for cocaine during a random drug test. Mayo appealed to the Fulton County Personnel Board, which upheld the termination. We granted Mayo’s application for discretionary appeal following the Fulton County Superior Court’s affirmance of the Board’s decision. Concluding that the superior court did not err, we affirm.

1. Mayo contends that the superior court erred in finding that Barrett had the authority to promulgate the random drug testing program. He does not argue that the random drug test was unconstitutional, but rather that it constituted a personnel regulation, and as such, had to be approved by the Board, the County Manager and the County Commissioners pursuant to the Fulton County Civil Service Act (Civil Service Act). See Ga. L. 1982, pp. 4896-4909. Mayo contends that without the approval of these three entities, the drug testing program was invalid, and that the results of his test cannot be used against him. We find no merit to this contention.

Sheriff Barrett is a duly elected, constitutional officer. See Ga. Const, of 1983, Art. IX, Sec. I, Par. Ill (a). Her statutory duties are defined in OCGA § 15-16-10, and include those duties which “necessarily appertain to . . . her office. . . .” These duties include the duty to protect the lives, persons, property, health and morals of the people. Elder v. Camp, 193 Ga. 320 (18 SE2d 622) (1942). They also include the duty to provide for the protection and well being of those inmates in her custodial care. In order to fulfill her duties, Barrett must have the inherent authority to implement certain public safety policies. One such public safety policy is the random drug screening of personnel who are authorized to carry weapons. Clearly Barrett has a compelling reason for randomly testing these employees because drug use by them undermines public confidence in the integrity of the Sheriff’s Office and poses a danger to fellow employees, inmates and the public at large. See City of East Point v. Smith, 258 Ga. 111, 113 (365 SE2d 432) (1988); Nat. Treasury Employees Union v. Von Raab, 816 F2d 170, 178 (5th Cir. 1987). Accordingly, the superior court did not err in finding that Barrett was authorized to promulgate and implement the drug testing policy in question.

Even if we concluded that Barrett lacked the inherent authority to promulgate and implement a drug testing policy, she was nevertheless authorized to promulgate and implement such a policy in accordance with the Fulton County Personnel Regulations, which were enacted pursuant to the Civil Service Act. While those regulations do not expressly provide for the random drug testing of employees, the regulations do authorize “Appointing Authorities” to institute policies. An “Appointing Authority” or “Department Head” is defined as “the person or persons authorized by law or delegated authority to make appointments to fill positions and who is the executive head of a department directly responsible for formulating and executing policies with discretion as to actions.” Fulton County Personnel Reg. PR 1900 (4). Because Barrett clearly falls within the definition set forth above, she is authorized to formulate and execute policies in accordance with the Fulton County Personnel Regulations.

The regulations specifically forbid employees from “[Reporting for duty or being on duty while using or under the influence of intoxicating liquors or drugs.” Fulton County Personnel Reg. PR 1800-2, Art. 5 (A). As an authorizing authority, Barrett therefore could promulgate and implement a drug screening policy as a means of enforcing this specific prohibition. Thus, her promulgation and implementation of a random drug testing policy was authorized by and in accordance with the Fulton County Personnel Regulations.

We reject Mayo’s contention that this case is governed by the Georgia Supreme Court’s holding in Dept. of Corrections v. Colbert, 260 Ga. 255 (391 SE2d 759) (1990). That case is distinguishable from the case at bar. Unlike Barrett, the Warden of the Georgia State Prison in Colbert did not have the inherent authority that Barrett has as a duly elected, constitutional officer. The Warden’s authority was derived solely from the Board of Corrections. And unlike the Fulton County Personnel Regulations, there is no indication that the rules promulgated by the Board of Corrections expressly addressed or prohibited drug use by employees. Moreover, unlike the Department of Correction Rules, the Fulton County Personnel Regulations do not limit a department head’s authority to simply directing and managing employees, but instead give department heads the authority to formulate and execute policies with discretion as to actions.

2. We also reject Mayo’s contention that the trial court erred in finding that Mayo had received adequate notice of the random drug testing policy. The record demonstrates that Barrett issued two memos to all employees advising them of implementation of the policy. In the second of these memos, Barrett specifically advised all sworn employees whose duties required the use of firearms, that dismissal was mandatory if they tested positive for drugs as set forth in Personnel Regulation PR 1800-2, Art. 5. Mayo admitted during his hearing before the Board that he had received these two memos. Therefore, we conclude that he had adequate notice of the random drug test policy.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

Decided March 8, 1996

Reconsideration denied March 26, 1996.

Marcia E. Fishman, Brenda A. Raspberry, for appellant.

Paula A. Morgan, for appellees.


text:
    A95A2332.
    METLIFE et al. v. WRIGHT. FOWLER v. WRIGHT.
    A95A2333.
    (470 SE2d 717)
   McMurray, Presiding Judge.

Plaintiff Wright was recruited and hired in 1987 as president and chief executive officer of defendant Metlife Financial Acceptance Corporation (“MFAC”), a newly formed consumer finance subsidiary of defendant Metlife and defendant Metropolitan Property & Liability Insurance Company. But within two years, a change in Metlife management brought a decision to terminate the consumer finance subsidiary. In August 1989, Wright entered into a settlement agreement which provided for the termination of his employment and mutual releases of any claims between himself and the corporate defendants.

The present action was filed in March 1993. Claims were stated against the three corporate defendants and against four individuals, Nagler, Schwartz and Reed, who were employees of Metlife, and Fowler, an employee of MFAC. The complaint relied upon stated theories of breach of contract, defamation, trespass, invasion of privacy, and intentional infliction of emotional distress.

On opposing motions for complete or partial summary judgment, the state court granted partial summary judgment in favor of the individual defendants on plaintiff’s claim for breach of contract. The motions for summary judgment were denied as to the remaining issues. The defendants, with Fowler acting separately, then sought and obtained permission for interlocutory appeals from the denial of summary judgment on the remaining portions of plaintiff’s claims. All of the defendants, except Fowler, appeal in Case No. A95A2332, while Fowler appeals in Case No. A95A2333. Held:

1. The state court erred in failing to grant a summary judgment in favor of defendants on plaintiff’s defamation claims. The applicable statute of limitation for injuries to one’s reputation is only one year. OCGA § 9-3-33. While plaintiff maintains that, under the circumstances of the case sub judice, the running of this period was tolled, we do not agree.

Plaintiff’s ignorance of the facts constituting a cause of action does not prevent the running of the statute of limitation. Priest v. Exposition Cotton Mills, 86 Ga. App. 301, 305 (71 SE2d 743). Plaintiffs reliance upon the discovery rule of King v. Seitzingers, Inc., 160 Ga. App. 318 (287 SE2d 252) is misplaced since that rule has been confined to cases of bodily injury which develop only over an extended period of time. See Hanna v. McWilliams, 213 Ga. App. 648, 649 (2) (446 SE2d 741).

Nor is there any evidence of such fraudulent concealment as will toll the running of the statute of limitation. Since the gravamen of plaintiff’s action is other than actual fraud and there was no relationship of trust and confidence between the parties, mere silence is not sufficient to toll the statute, there must be a separate independent actual fraud involving moral turpitude which debars and deters the plaintiff from bringing his action. Shipman v. Horizon Corp., 245 Ga. 808, 809 (267 SE2d 244); Curlee v. Mock Enterprises, 173 Ga. App. 594, 596 (2), 597 (327 SE2d 736). Plaintiff has failed to present evidence of such circumstances, therefore no jury question is presented as to a tolling of the statute of limitation. Edmonds v. Bates, 178 Ga. App. 69, 72 (342 SE2d 476).

Plaintiff failed to present evidence of actionable defamation within the period of the statute of limitation. Of the instance of alleged libel and slander identified by plaintiff as occurring within the one-year period, not only were they clearly not related to the incidents alleged in plaintiffs complaint, they also were either privileged statements made in the context of litigation, not in fact defamatory, or statements of other persons not attributable to defendants.

2. The state court also erred in failing to grant summary judgment in favor of the corporate defendants on plaintiff’s breach of contract claim. Under the terms of the settlement agreement, the corporate defendants agreed “to release, acquit, and forever discharge Mr. Wright from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts and expenses or any claims based on negligence or intent of any nature whatsoever, known or unknown, suspected or unsuspected, which the Company has, owns, holds, or heretofore had, owned, or held or claimed to have, own, or hold, arising out of any claims based on negligence or intent of a nature within the scope of Mr. Wright’s employment by the Company.” While plaintiff maintains that the “release, acquit, and forever discharge” phrase served to prohibit any disparaging statement by defendants concerning plaintiff’s management of MFAC, we do not find any such requirement of silence to be within the parameters of a reasonable construction of this contractual language which is clearly intended to bar the corporate defendants from suing plaintiff for his negligence or intentional malfeasance while employed by MFAC. The parol evidence relied upon by plaintiff to support his construction of this phrase could not have been properly considered. Paige v. Jurgensen, 204 Ga. App. 524, 525 (1) (419 SE2d 722).

Decided March 15, 1996

Reconsideration denied March 27, 1996.

Smith, Howard & Ajax, John A. Howard, David K. Whatley, Brooks W. Binder III, for Metlife.

F. Glenn Moffett, L. Prentice Eager III, for Fowler.

Fisher & Phillips, William F. Kaspers, Cashin, Morton & Mullins, Harry L. Cashin, Jr., Richard W. Gerakitis, for Wright.

Since there was no contractual duty upon defendants to avoid comment upon plaintiff’s management of MFAC, there was no viable claim arising from any such statements so long as they were truthful. Of course, insofar as any untruthful statements were made concerning plaintiff’s management of MFAC, the gravamen of the resulting claim would be defamation which is governed by the one-year statute of limitation and by our holding in the first division of this opinion.

3. We have examined the record, with aid from the references thereto contained in the briefs, seeking some factual predicate for plaintiff’s remaining claims, but found none. It follows that summary judgment should have been granted in favor of defendants as to all of the remaining issues.

Judgment reversed.

Andrews and Blackburn, JJ., concur.