author: MCMILLIAN, Judge.

text:
    A14A1020.
    GODWIN v. MIZPAH FARMS, LLLP et al.
    (766 SE2d 497)
   MCMILLIAN, Judge.

Walter P. Godwin appeals the trial court’s grant of summary judgment on his claims, inter alia, for fraud, breach of fiduciary duty, and breach of contract against Mizpah Farms, LLLP (‘Mizpah Farms”); his son, Bobby I. Godwin; and his grandchildren, John Godwin, Summer Godwin Hall, and Casey Godwin on the ground that the claims are barred by the applicable statutes of limitation. We affirm the trial court’s order of summary judgment in part and reverse in part, as set forth below.

This Court reviews the grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmovant. See Whitfield v. Tequila Mexican Restaurant No. 1, Inc., 323 Ga. App. 801, 802 (2) (748 SE2d 281) (2013). So viewed, the evidence shows that Walter began farming his family’s land around 1949 and eventually accumulated over 600 acres of land in Grady and Decatur Counties. And as early as 1967, Walter’s son, Bobby, began farming alongside his father, growing primarily corn and peanuts. They farmed in partnership until 1992, when Walter retired “on paper.” Despite this “retirement,” Walter continued to help Bobby with the farm until 2009.

After the death in April 2000 of Maggie Godwin, Walter’s first wife and Bobby’s mother, Walter and Bobby consulted legal counsel in connection with planning Walter’s estate. On counsel’s advice, Walter, Bobby, and the Grandchildren formed Mizpah Farms, LLLP, as Walter explained, “[t]o help on estate taxes.” Walter signed the Mizpah Farms limited partnership agreement (the “LLLP Agreement”) as both the sole general partner and a limited partner, and the others signed as limited partners.

According to both Bobby and Dale Davidson, Walter’s tax attorney, Mizpah Farms was formed to hold real estate and the only income to the partnership was rental income from the land. Although Walter said in his deposition that he thought the farming operations also were to be run through the partnership, he concedes on appeal that the farming operations and Mizpah Farms “are distinct and separate entities, each with [its] own federal tax ID.”

To fund Mizpah Farms, Walter signed a deed dated November 21, 2000, conveying his interest in ten parcels of land to the partnership. Additionally, Walter signed an assignment dated November 21,2000, transferring all of his “Limited Partnership Units and Partnership Rights in [Mizpah Farms]” to Bobby and the Grandchildren, effective December 31, 2000, “in consideration of the love and affection among [Walter, Bobby and the Grandchildren] ... as a gift” (the “Assignment”). The Mizpah Farms partnership documents reflect that as of November 20, 2000, Walter held 811,395 partnership units, while Bobby and the Grandchildren each held 10,000 partnership units. After the Assignment, however, as of December 31, 2000, Walter’s partnership certificate was stamped “cancelled” and his partnership units were divided among the Grandchildren with each receiving 270,465 units. Bobby retained his original 10,000 partnership units.

Walter now asserts that he did not understand the partnership documents and that he was tricked into signing them. However, the attorneys who prepared the documents and witnessed Walter’s signatures stated that they explained the legal import of the documents to Walter and believed that Walter understood them before he signed them. As one of the attorneys explained, the limited partnership arose out of a “discussion over a period of time. This didn’t just happen in one day or one moment.”

The record demonstrates that Walter began to have questions about Mizpah Farms in 2003, when he became concerned that he was not receiving any farming income from working alongside Bobby on the farm. In his verified complaint, Walter said that he asked Bobby why he was not receiving any farming income, and Bobby told him that the farm was not making money after the payment of all the bills and expenses of farming. At his deposition, Walter testified that he did “nothing” in response to his concerns about the farming income because he “had too much trust in [his] son, . . . that he’d make it right.” However, Walter acknowledged that he had access to documentation at the Farm Service Agency (the “FSA”) of the United States Department of Agriculture (the “USD A”), where he continued to sign documentation relating to the farming business. He also had access to records at the Bank, where he was a signatory on the farm account. Yet, Walter took no steps to investigate these financial records at the time, and he conceded that he “didn’t chase it down like [he] should have.”

Around the same time period, however, Walter asked Davidson a series of questions about Mizpah Farms and other farming-related matters. He also asked whether it was a conflict of interest for Davidson “to represent BOTH general partners in a business contract, or any other partners?” In response, Davidson wrote Walter a letter dated January 23, 2004, explaining, inter alia, that the only property in Mizpah Farms was the real estate; that according to the LLLP Agreement, Walter was the sole general partner of Mizpah Farms; that Bobby and the Grandchildren were the limited partners; that the partnership could not act except through Walter as the general partner; and that Davidson did not believe a conflict existed because he was under “the distinct impression that the partners, both General and Limited, are ‘on good terms’ ” but if he were mistaken in that impression Walter needed to let Davidson know “immediately.”

Additionally, in January 2004, Walter, Bobby, and the Grandchildren entered into an agreement giving Walter the right to collect all proceeds from the sale of timber on the land owned by Mizpah Farms (the “Timber Agreement”). The Timber Agreement identifies Walter as the general partner of Mizpah Farms, but not as a limited partner, and identifies Bobby and the Grandchildren as limited partners.

In July 2010, Walter again began to have concerns about Mizpah Farms, and he once again went to Davidson for information and partnership documents. Subsequently, on December 17, 2010, Walter filed an “Application for Decree of Dissolution” of Mizpah Farms (“First Application”). And on March 30, 2012, Walter filed a “Verified Second Amended Application & Complaint” (“Second Amended Application”), asserting claims against the individual Appellees in addition to the request for dissolution of Mizpah Farms. Walter testified that his primary goal in this litigation is to get his land back.

The Appellees subsequently filed a motion for summary judgment, asserting that Walter’s claims were barred by the applicable statutes of limitation and that Walter lacked standing to seek dissolution of the partnership as he had divested all of his partnership interests in 2000. Following a hearing, the trial court granted the motion for summary judgment as to all of Walter’s claims. The trial court found that “any claim of right would have to have been brought within the applicable statute of limitation from December 31, 2003, when Walter Godwin began to question his lack of income and inclusion in partnership activities,” and “that all partnership shares are vested in the names” of the Appellees and thus Walter had no standing to seek dissolution of the partnership.

1. Walter first asserts that the trial court’s July 22, 2013 summary judgment order was premature, because five months earlier, in an order dated February 11, 2013, the trial court had allegedly reserved ruling on certain discovery. However, Walter designated only portions of the trial court record for inclusion in the record on appeal, and the February 11, 2013 order was not among the designated documents. As a result, he is unable to show the existence of any outstanding discovery issues. “In order for an appellate court to make a determination about the correctness of a judgment at issue, it is the appellant’s duty to include in the record on appeal the items necessary for the appellate court to objectively review the evidence and proceedings giving rise to the judgment.” Kirkendall v. Decker, 271 Ga. 189, 191 (516 SE2d 73) (1999). Accordingly, “[ijnthe absence of the relevant information, and there being a presumption in favor of the regularity of court proceedings,” we must presume that the summary judgment issues were ripe for the trial court’s consideration. See id.

Moreover, the record contains no indication that Walter asked the trial court for a continuance of the summary judgment hearing or a delay in its ruling until the alleged discovery issue could be resolved. Thus, Walter did not present this issue to the trial court for its consideration. It is axiomatic that “our appellate courts are courts for the correction of errors of law committed in the trial court. . . . Therefore, absent special circumstances, an appellate court need not consider arguments raised for the first time on appeal.” (Citation and punctuation omitted.) Safe Shield Workwear, LLC v. Shubee, Inc., 296 Ga. App. 498, 500-501 (2) (675 SE2d 249) (2009). See also 915 Indian Trail, LLC v. State Bank and Trust Co., 328 Ga. App. 524, 534-535 (3) (759 SE2d 654) (2014) (physical precedent only) (rejecting argument that trial court prematurely ruled on summary judgment motion in light of pending motion to compel discovery, where party seeking discovery failed to meet the requirements of OCGA § 9-11-56 (f)).

2. Walter also argues that the trial court erred in making certain findings of fact in its summary judgment order because the record contains conflicting evidence on those issues. We agree that the trial court erred to the extent that it acted as a finder of fact to resolve conflicting issues in response to the Appellees’ motion for summary judgment, instead of construing the evidence in favor of Walter as the nonmovant. See Whitfield, 323 Ga. App. at 802 (2). Nevertheless, a trial court’s order of summary judgment, including any findings of fact, “enjoy[s] no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). Accordingly, this Court will consider the evidence of record de novo in accordance with the well-established summary judgment standard.

3. Walter next asserts that the trial court erred by finding as a matter of law that the statutes of limitation for Walter’s causes of action accrued on December 31, 2003, and in failing to consider his argument that the limitation periods would be tolled under OCGA § 9-3-96 due to the confidential and/or fiduciary relationship between Walter and Bobby.

“In determining whether the statute of limitation provides a bar to this action the court must decide when the statutory period began to run.” (Citation omitted.) Contract Furniture Refinishing & Maintenance Corp. of Ga. v. Remanufacturing & Design Group, LLC, 317 Ga. App. 47, 50 (1) (730 SE2d 708) (2012). And

[i]t has been long recognized and is well established that a statute of limitation begins to run on the date a cause of action on a claim accrues. In other words, the period within which a suit may be brought is measured from the date upon which the plaintiff could have successfully maintained the action.

(Citation omitted.) Id. at 50-51 (1). See also Hoffman v. Ins. Co. of North America, 241 Ga. 328, 329 (245 SE2d 287) (1978) (“When the question is raised as to whether an action is barred by a statute of limitations, the true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.”) (citation and punctuation omitted). Because Walter’s claims arise from various alleged actions on the part of the Appellees and allege varying damages, the limitation periods for all the claims in this case do not necessarily begin to run from the same date. Accordingly, we will address the claims according to the underlying actions alleged and the damage allegedly suffered.

We must also determine whether we should calculate the applicable limitation periods using the date of Walter’s First Application, filed on December 17,2010, or the Second Amended Application, filed on March 30, 2012, which requires a determination of whether the claims in the second pleading relate back to the first. Georgia courts have held that

the question of relation back of the amendment turns on fair notice of the same general fact situation from which the claim arises. It is apparent that the strict rule of no relation back of the amendment to the time of filing the original complaint because of the assertion of a new cause of action is no longer applicable unless the causes of the action are not only different but arise out of wholly different facts.

(Citation, punctuation and emphasis omitted.) Jensen v. Engler, 317 Ga. App. 879, 883 (1) (b) (733 SE2d 52) (2012). Again, because the determination of this issue depends upon the allegations of a particular claim, the pleading used will not necessarily be the same for each claim. However, we need not determine whether a claim relates back to the First Application if we find that the statute of limitation ran before it was filed on December 17, 2010.

(a) Claims to recover land — The gist of Walter’s claims of fraud (Count I), undue influence (Count II), lack of consideration (Count III), and mistake (Count IV) is that Bobby and the Grandchildren initiated a fraudulent plan to deprive him of his land through the formation of Mizpah Farms. In support of these claims, Walter alleged that Bobby initially induced him to engage in estate planning with small distributions of his land. Walter believed that Mizpah Farms was created “to give the farm a name,” but he understood that he retained a 96% ownership in the partnership. And in the prayer for relief as to these claims, Walter seeks to rescind, cancel, set aside, and void “any and all of the documents, papers, deeds, certificates of organization, partnership certificates, partnership agreement and all amendments thereto which relate to Mizpah Farms, LLLP, including but not limited to the deeds described or referenced therein, and all assets of Walter P. Godwin be restored to him.”

The transfer of Walter’s interest in the land to Mizpah Farms occurred on November 21, 2000, and the transfer of Walter’s partnership units to Bobby and the Grandchildren was effective as of December 31, 2000. Walter claims that he did not understand the documents he was signing and that he relied on his son Bobby in signing them. “[0]ne signing a document has a duty to read it and is bound by the terms of a document he does not read,” although a party to a confidential or fiduciary relationship may rely upon representations made by the other party. Trulove v. Woodmen of the World Life Ins. Society, 204 Ga. App. 362, 365 (1) (419 SE2d 324) (1992). Walter asserts that as his son and business partner, Bobby had a confidential relationship with him. Even so, Walter did not identify any misrepresentations by Bobby regarding the content of the documents or the purpose of Mizpah Farms. Although Walter states that he understood that he would maintain a 96% ownership interest in Mizpah Farms and remain as general partner, he could not recall who may have made any such representation to him.

Moreover, Walter never stated that he did not read the documents or that Bobby somehow prevented him from reading the documents before he signed them. In fact, Walter testified that he has never had any problems with his cognitive abilities, that he had the ability to handle his financial affairs in 2000, and that he always made his own decisions and did his own thinking. Additionally, Walter has not directly disputed the testimony of his lawyers asserting that they explained the import of the documents to him. Walter’s conclusory statements that he was “tricked” into signing the documents or had a “gut feeling” that he was “swindled” do not overcome the lack of any evidence showing fraud on the part of Bobby (or anyone else) that prevented him from reading or understanding the documents he signed in conjunction with Mizpah Farms. See Georgia Cas. & Sur. Co. v. Salter’s Indus. Svc., Inc., 318 Ga. App. 620, 623 (734 SE2d 415) (2012).

Thus, we conclude that Walter discovered or reasonably could have discovered the transfer of his interest in the land to Mizpah Farms and his assignment of his partnership interests to his Grandchildren, by December 31, 2000, at the latest. Accordingly, even if we apply the seven-year statute of limitation for actions seeking cancellation of a deed, the longest limitation period applicable, we find that Walter’s claims under Counts I, II, III and IV expired on December 31, 2007, almost three years before he filed the First Application. Summary judgment was proper as to such claims.

(b) Claims for partnership proceeds and Walter’s removal as general partner — Walter’s claims for breach of fiduciary and confidential relationships (Count VI), aiding and abetting breach of fiduciary duty (Count VII), breach of contract (Count X), and breach of fiduciary duty for freezing Walter out of the partnership (Count XI) arise from allegations that Bobby and the Grandchildren breached their duties to Walter as fellow partners, breached the LLLP Agreement by failing to adhere to their assigned roles or the purposes of the agreement, and took partnership income for their own gain.

“Under OCGA § 9-3-24, an action for breach of a written contract must be brought within six years of the breach.” Hamburger v. PFM Capital Mgmt., Inc., 286 Ga. App. 382, 384 (1) (649 SE2d 779) (2007). “The discovery rule is not applicable to a cause of action based on breach of contract; with respect to a breach of contract claim, the statute of limitation runs from the time the contract is broken rather than from the time the actual damage results or is ascertained.” (Citation and punctuation omitted.) Id. at 385 (1).

In contrast, Georgia has no specific statute of limitation for breach of fiduciary duty claims. Instead, we examine the injury alleged and the conduct giving rise to the claim to determine the appropriate statute of limitation. See Reaugh v. Inner Harbour Hosp., Ltd., 214 Ga. App. 259, 260 (1) (447 SE2d 617) (1994). In this case, Walter alleges that Bobby, aided and abetted by the Grandchildren, diverted income owed from the partnership and overstepped their duties as limited partners, all in violation of the LLLP Agreement. Accordingly, we find that the six-year statute of limitation for breach of simple contracts under OCGA § 9-3-24 applies to these breach of fiduciary duty claims. See Cochran Mill Assocs. v. Stephens, 286 Ga. App. 241, 244 (1) (648 SE2d 764) (2007) (applying six-year contract limitation period to claims of fiduciary duty arising out of a real estate partnership); Crosby v. Kendall, 247 Ga. App. 843, 849 (2) (c) (545 SE2d 385) (2001) (applying a six-year limitation period to a claim of breach of fiduciary duty arising in connection with an escrow agreement). See also Charles R. Adams III, Ga. Law of Torts § 18:2 (h) (2013-2014 ed.). In applying the limitation period, we must also remain mindful that “[t]he statute of limitation for a cause of action for breach of fiduciary duty is triggered by a wrongful act accompanied by any appreciable damage.” Hendry v. Wells, 286 Ga. App. 774, 779 (1) (650 SE2d 338) (2007). Moreover, each act of alleged breach of fiduciary duty that causes damage creates a new cause of action for that specific act. See Smith v. SunTrust Bank, 325 Ga. App. 531, 545 (2) (754 SE2d 117) (2014) (each alleged improper income distribution by fiduciary constituted a separate cause of action for breach of fiduciary duty); Mayfield v. Heiman, 317 Ga. App. 322, 329 (4) (b) (730 SE2d 685) (2012) (court must “[look] to each of the beneficiary’s specific claims of acts of mismanagement to determine when her causes of action accrued”); Hamburger, 286 Ga. App. at 387 (2), n. 19 (noting that a “cause of action for breach of fiduciary duty accrues each time defendant commits a wrongful act that causes appreciable damage”).

Additionally, because Walter alleges a number of breaches of fiduciary duty over a range of time, we also must determine whether to use the First Application or Second Amended Application in calculating the limitation period. We find that these claims relate back to the First Application, which sought dissolution of the partnership, in part, based on allegations that although Walter was listed as the general partner in the LLLP Agreement and a 96% owner of the partnership in tax returns, he was not consulted on decisions concerning Mizpah Farms and was not involved in its management. These allegations were sufficient to give the Appellees fair notice that Walter might assert additional claims arising out of their alleged failure to act in accordance with the LLLP Agreement. Accordingly, we find that any claims under these counts accruing on or before December 17, 2004 are barred by the applicable statute of limitation.

Walter asserts, however, that the limitation periods did not begin to run until 2010, when he stopped receiving rental income, because the statutes of limitation on these claims were tolled by his relationship with Bobby. “On motion for summary judgment, the movant has only the burden of proof as to the affirmative defense of the running of the statute of limitation and not to establish the absence of facts showing a tolling.” (Citation and punctuation omitted.) Smith, 325 Ga. App. at 539 (1). Once the movant has presented evidence that the claim is time-barred, “[t]he burden of persuasion then shifts to the nonmovant to present some evidence showing that an issue exists that the statute has not run but has been tolled.” (Citation and punctuation omitted.) Id. Because the Appellees have presented evidence indicating that the claims accruing before December 17, 2004 are untimely, Walter has the burden to present evidence supporting his tolling argument.

Walter contends the limitation periods were tolled by the fiduciary relationship between Bobby and him, as family, tenants in common, partners in Mizpah Farms, and Bobby’s status as Walter’s agent under a power of attorney he signed in connection with the farming operation. However, it is well settled that “a confidential relationship cannot, standing alone, toll the running of the statute. Rather, a confidential relationship means only that the plaintiff has cause to rely upon, and place confidence in, the defendant.” Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844, 847-848 (1) (507 SE2d 411) (1998). To toll a statute of limitation, Georgia law requires proof of “fraud by which the plaintiff has been debarred or deterred from bringing an action, [and] the period of limitation shall run only from the timeofthe plaintiff’s discovery ofthe fraud.” OCGA § 9-3-96. In order to establish such fraudulent concealment, a plaintiff must prove:

(1) actual fraud involving moral turpitude on the part of the defendant; (2) [that] the fraud . . . conceal[ed] the existence of the cause of action from the plaintiff, thereby debarring or deterring the knowing of the cause of action; and (3) [that] plaintiff exercised reasonable diligence to discover the cause of action, notwithstanding the failure to discover within the statute of limitation.

(Citation omitted; emphasis supplied.) Heretyk v. P. M. A. Cemeteries, Inc., 272 Ga. App. 79, 80-81 (1) (611 SE2d 744) (2005). Thus, the existence of a confidential relationship

affects only the extent of (a) the defendant’s duty to reveal fraud, and (b) the plaintiff’s corresponding obligation to discover the fraud for herself. Where a confidential relationship exists, a plaintiff does not have to exercise the degree of care to discover fraud that would otherwise be required, and a defendant is under a heightened duty to reveal fraud where it is known to exist.

(Footnote omitted.) Hunter, McLean, 269 Ga. at 848 (1). Nevertheless, “the fraud itself — the defendant’s intention to conceal or deceive — still must be established, as must the deterrence of a plaintiff from bringing suit.” Id. See also Warnock v. Warnock, 206 Ga. 548, 550 (57 SE2d 571) (1950) (statute not tolled “where no facts are alleged to show fraud on the part of the defendant preventing discovery by the plaintiffs within the statutory period”) (citation omitted). And “[ujnder Georgia law, fraud that gives rise to a cause of action does not necessarily establish the fraud necessary to toll the statute of limitation.” (Citation and punctuation omitted.) Hendry, 286 Ga. App. at 780 (1).

Walter has failed to point us to evidence indicating an intent to conceal or deceive on the part of Bobby. Although Walter notes Bobby had a heightened duty to disclose any fraud, he fails to identify any specific instances of “fraud” that were not revealed to him. The record shows that he signed documents and tax returns in the capacity of general partner, which showed the income the partnership had earned, and the evidence demonstrates that Bobby (and Davidson) thought Walter was the general partner until this litigation arose. He also acknowledged that the Mizpah Farms tenants paid their rent directly to him until 2010 and he received timber profits on the land until that time. Moreover, Walter identifies only one representation to support his tolling argument. He asserts that Bobby told him at some point in 2003 that Walter was not receiving farming income because the farm was not making any money at the time. But he has not pointed us to evidence indicating that this representation was even false, much less to evidence indicating that it was fraudulently intended to debar him from bringing suit.

Accordingly, we find that the trial court properly granted summary judgment as to any claims under Counts VI, VII, X, and XI to the extent they accrued on or before December 17,2004, but to the extent they accrued after December 17, 2004, such claims are not time-barred, and the trial court erred in granting summary judgment on them.

(c) Claim for peanut and tobacco quotas and assignments — Under Count VIII, Walter asserts a separate claim for breach of fiduciary duty under a power of attorney he signed on September 27, 2002, appointing Bobby as his agent for all purposes with the FSA office in Grady County. See Wright v. Apartment Investment and Mgmt. Co., 315 Ga. App. 587, 592 (2) (a) (726 SE2d 779) (2012) (“Where an agency relationship exists, the agent has a fiduciary duty to his principal.”). Walter asserts and presented evidence that Bobby used his authority under the power of attorney to misappropriate “hundreds of thousands of dollars in payments” from peanut and tobacco quotas and assignments paid by the USDA and the FSA between 1995 and 2010.

“As a general rule, a power of attorney merely authorizes another agent to do what the grantor principal could do with respect to the recited subject matter.” (Citation and punctuation omitted.) Harris v. Peterson, 318 Ga. App. 382, 384 (734 SE2d 93) (2012). And “Georgia law prohibits agents such as those acting under a power of attorney from benefiting from their position to the principal’s detriment. Indeed, an agent may not profit from the agency to the detriment of the principal.” (Citations and punctuation omitted.) Id. See also OCGA § 10-6-21 (“The agent shall act within the authority granted him, reasonably interpreted. . . .”). Thus, although the power of attorney defines the limits of the agency relationship between Walter and Bobby, any breach of fiduciary duty thereunder is determined by statutory and common law and not the terms of the power itself. Because Walter is seeking to recover damage to his personalty arising from the breach of common law and statutory duties, we apply the four-year statute of limitation under OCGA § 9-3-31 to such claims.

We also find that this claim does not relate back to the filing date of the First Application, which sought only the dissolution of Mizpah Farms. The claim under Count VIII arises out of a completely different set of facts, and nothing in the First Application would have put Bobby on fair notice of such a claim. See Jensen, 317 Ga. App. at 883 (1) (b). Accordingly, in determining whether the limitation period on this claim has run, we use March 30, 2012, the date the Second Amended Application was filed.

Bobby admitted that he held and used Walter’s power of attorney at the FSA until Walter revoked it in March 2011. However, Walter also held Bobby’s power of attorney at the FSA until Bobby revoked it in 2011, and Walter admitted that he had access to the FSArecords regarding the farm operations. Under these circumstances, we find that Walter cannot show that Bobby fraudulently concealed information about the peanut and tobacco quotas and assignments, and as Walter admitted, he “didn’t chase [the issue] down like [he] should have.” Therefore, no issue of tolling arises as to this claim.

Accordingly, we find that any claims under Count VIII accruing on or before March 30, 2008 are time-barred. However, any claims accruing thereafter are not untimely, and the trial court erred in granting summary judgment as to any such claims.

(d) Dissolution of Mizpah Farms — In Count V, Walter seeks dissolution of Mizpah Farms under OCGA § 14-9-802 on the ground that it is not reasonably practical to carry on the business of the partnership in conformity with the LLLP Agreement. Walter also seeks dissolution on the ground that if Bobby is determined to be the general partner, his misconduct has prejudicially affected the partnership. Such a claim refers to the state of the partnership as of December 17, 2010 and after; thus, it is timely.

However, an application to dissolve a limited partnership under OCGA § 14-9-802 may be filed only by or on behalf of a partner of a limited partnership, so Walter’s ability to pursue these claims turns on a determination of whether he was a partner on December 17, 2010. We find that material issues of fact remain on that issue.

The Appellees argue that Walter became disqualified as General Partner when he transferred all of his partnership units to Bobby and the Grandchildren as of December 31, 2000, when the Assignment became effective. They contend that the Assignment constituted Walter’s withdrawal from the partnership, and under the terms of the LLLP Agreement, Bobby became the successor general partner when the Assignment went into effect. They also note that Walter’s only partnership certificate was cancelled on December 31, 2000.

Decided November 21, 2014.

However, Walter asserts that the LLLP Agreement prohibits withdrawal by a general partner and that he, in fact, never withdrew. Walter also notes that the LLLP Agreement contemplates the issuance of general partnership units. Walter argues that he still has an interest in Mizpah Farms and he can seek dissolution of the partnership because he still holds general partnership units. Although the record contains no partnership certificate relating to general partnership units, other documents in the attorney’s file indicate that Walter may have received at least a two percent interest in general partnership units over and above the shares reflected on his partnership certificate and that he may have retained such units even after the Assignment became effective. Moreover, the record demonstrates that Bobby, Davidson, and Walter all believed that Walter remained as general partner until this lawsuit arose. And evidence shows that for ten years or more, he continued to act in the capacity of general partner for at least some purposes, including signing tax returns and other documents, without objection from Bobby or the Grandchildren.

We find that this evidence presents an issue of fact for the jury as to whether Walter had assigned away all his partnership interests in Mizpah Farms, and the trial court erred in resolving this issue on summary judgment.

(e) Other claims — We find that Walter’s claims under Counts IX, XII, XIII, and Count XIV seeking equitable and declaratory relief, as well as punitive damages and attorney fees, are based on the same factual allegations as his other claims and are barred except to the extent that they relate to the claims under Counts V, VI, VII, VIII, X, and XI that we have found to be timely. See Plyman v. Glynn County, 276 Ga. 426, 427 (578 SE2d 124) (2003) (“courts of equity usually act in obedience and in analogy to the statutes of limitation, in cases where it would not be unjust and inequitable to do so”) (citation and punctuation omitted).

Judgment affirmed in part and reversed in part.

Phipps, C. J., and Ellington, P. J., concur.

Whitehurst, Blackburn & Warren, R. Bruce Warren, MaliaPhillips-Lee, for appellant.

Robert D. Howell, for appellees.

       Because the individual parties in this case are all members of the same family, most sharing the same last name, for ease of reference, we will refer to them individually by their first names. Additionally, appellees John Godwin, Summer Godwin Hall, and Casey Godwin will be referred to collectively as the “Grandchildren,” and all the appellees will be referred to collectively as the “Appellees.”

       The partnership units were valued at approximately $1 per unit with the valuations taken from the estimated values assessed on the land by the Grady County Tax Assessors Office.

       His attorney stated at the hearing on the motion for summary judgment, however, that he did not believe that Walter was “tricked” into signing any deed; rather, his counsel believed the deeds were signed under “undue influence.”

       Davidson is not a party to this lawsuit, and Walter has pointed us to no evidence indicating that Davidson was acting on behalf of Bobby or the Grandchildren in writing this letter.

       Walter consequently has not provided us a record citation to that order.

        See Evans v. Dunkley, 316 Ga.App. 204, 207 (1) (728 SE2d 832) (2012) (seven-year statute applies to equitable action to action for accounting and cancellation of deed); Lockridge v. Smith, 298 Ga. App. 428, 431 (2) (a) (680 SE2d 501) (2009) (same). We note that the Appellees argue that the four-year statute of limitation for injuries to personalty under OCGA § 9-3-31 applies.

       We will affirm a grant of summary judgment if it is “right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.” Anderson v. Jones, 323 Ga. App. 311, 312, n. 2 (745 SE2d 787) (2013).

       We note that our Court has applied the four-year statute of limitation for injury to personalty to breach of fiduciary duty claims that involve misrepresentations. See Hendry v. Wells, 286 Ga. App. 774, 779 (1) (650 SE2d 338) (2007) (applying four-year statute of limitation to breach of fiduciary duty claims alleging fraud by general partner); Kothari v. Patel, 262 Ga. App. 168, 174 (3) (585 SE2d 97) (2003) (applying four-year statute of limitation to claims of breach of fiduciary duty and fraud claims arising in connection with a promissory note and stock subscription agreement).

       Further, although Bobby apparently retrieved the original partnership documents from Davidson, either in 2000 or 2002, and put them in a safe deposit box, no evidence exists that Walter asked to see either the original or copies of these documents or financial records prior to 2010 or that he was denied access to the documents in the interim. Where a party is on notice of the true contents of partnership documents, from which he could have discovered the truth, no tolling occurs. Hendry, 286 Ga. App. at 780 (1). Accordingly, Walter has failed to show that the Appellees’ actions tolled the statute of limitation.

       In support of his claims, Walter has produced evidence that in 2010, Bobby directed that all rental income for Mizpah Farms would no longer go to Walter, and the Appellees later attempted to oust him from the partnership. Thus, these claims are timely. Appellees, on the other hand, assert that Walter’s claims for breach of fiduciary duty arose, if at all, well before 2004 when Walter began questioning why he was not receiving income from the farming operations, which he thought at the time were included in the partnership. The Appellees argue that any subsequent failures to pay Walter stemmed from this initial breach and thus are time-barred. Again, we reiterate that any causes of action accruing under Counts VI, VII, X, and XI after December 17, 2004 are timely. In contrast, any causes of action accruing before that date are untimely, even where the underlying breach resulted in damages occurring after December 17, 2004.

       Walter did not cite us to a copy of the 2002 power of attorney in the record, although we located copies of a power of attorney signed March 2, 2009.

       Section 7.2 of the LLLP Agreement provides, “If Walter Godwin should die or become unable or unwilling to act as a General Partner for any reason, Bobby Godwin shall be appointed as a successor General Partner.”


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A1165.
    ONE BLUFF DRIVE, LLC et al. v. K. A. P., INC.
    (766 SE2d 508)
   Branch, Judge.

A jury returned an award of $400,000 to a contractor on its claims against certain homeowners for failure to pay the contractor in full for a major house renovation; the jury also awarded $112,221 of attorney fees for bad faith, stubborn litigiousness or causing the contractor unnecessary trouble and expense. Following the denial of the homeowners’ motion for new trial, the homeowners appeal. The homeowners do not challenge the sufficiency of the evidence. Instead, they contend the trial court erred by charging the jury on quantum meruit and by denying their two motions that attempted to limit the contractor’s possible damages. For the reasons stated below, we affirm.

On appeal following a jury verdict and judgment, this Court “must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.” Harris v. Tutt, 306 Ga. App. 377, 378 (1) (702 SE2d 707) (2010) (citation and punctuation omitted).

So construed, the evidence presented at trial relevant to the claims on appeal shows that in 2006, K. A. R, Inc. (“KAP”), a general contractor, through its owner/president, John Kicklighter, entered into an agreement with One Bluff Drive, LLC and its sole member, Kenneth R. Hardigan, to supervise the construction of improvements to the bottom floor of Hardigan’s residence located at 1 Bluff Drive in Savannah. After KAP commenced work, Hardigan fired the architect, hired a replacement, and significantly revised the scope of the project, including adding the second floor to the scope. In response, KAP prepared a two-page, “Main Summary Base Bid” showing a $1,092,943 estimated cost to complete the project as of September 5, 2007; the detail supporting documents were attached thereto.

The Base Bid document is a table of values for the different aspects of the project; it does not contain any contractual provisions or a projected completion date. It was an estimate based on information that was limited at the time because Hardigan had changed architects and the second architect had yet to prepare specifications or a schedule for completion. KAP presented the Base Bid to Hardi-gan that evening, and the parties added a “contingency” of $107,057 to bring the total estimate to $ 1.2 million; it was understood, however, that any changes to the scope of the project reflected in the Base Bid would change the cost of the project. Thus, Kicklighter testified, the project was to be billed on a time and materials basis. In meetings with representatives of KAP, Hardigan acknowledged that he understood the nature of the Base Bid. The Base Bid also reflects that KAP chose not to charge for any overhead or profit; Kicklighter testified that he did so because of his friendship with Hardigan and because the two had worked together on several other projects. The following day, KAP delivered a letter to Hardigan that referenced their meeting on the prior evening “with regards to the budget number we met about last night.” The letter continued, “The 1.2 million budget (worked on a time and material basis) for KAP was based upon the newly acquired renovation drawings from [the second architect].”

After work continued on the project, Hardigan increased the scope of the work “many times,” including changes that required ripping out work already performed. KAP presented evidence that because of additions and changes to the scope of the work, the total cost of time and materials for the project exceeded $1.5 million. Given that the parties stipulated that Hardigan ultimately paid KAP $1,102,479.30, KAP presented evidence that Hardigan owed KAP in excess of $459,000. At one point toward the end of the project, Hardigan contacted KAP and asked, “I need a number from you to complete this house. I don’t know what the number is, but could you give me the number that it’s going to take to finish this house?” Hardigan intended to borrow additional funds to complete the project based on that number. Based on the information available at that time, KAP projected the remaining costs to be $300,000, and Hardi-gan sought and obtained an additional loan of $350,000 but did not use it to pay KAP. KAP finished the project, obtained a certificate of occupancy, and submitted the final two invoices totaling $511,243 to Hardigan. Hardigan moved into the house and lived there for three years but never paid KAP the total amount due.

On September 29, 2009, KAP filed suit to foreclose on a lien it filed in May 2009. On December 28, 2010, the appellants moved for partial summary judgment, arguing that KAP’s Base Bid represented a fixed-sum contract and, therefore, that the amount of damages KAP could recover was limited to the costs of the extras and changes beyond the scope of the original contract. On June 17, 2011, the trial court denied the motion, rejecting the argument that the parties entered into an agreement as to the maximum amount that could be charged for changes to the Base Bid. On November 14, 2011, the appellants moved in limine to prohibit KAP from introducing evidence of the total costs of the project. The trial court denied the motion. The case was tried before a jury in September 2013.

1. The appellants contend the trial court erred by charging the jury on the law of quantum meruit because KAP never raised a claim under that theory and that KAP was required to plead quantum meruit in a separate count. We hold that the appellants’ arguments are baseless as a matter of fact and law.

“Atrial court has a duty to charge the jury on the law applicable to issues which are supported by the evidence. If there is even slight evidence on a specific issue, it is not error for the court to charge the jury on the law related to that issue.” Jones v. Sperau, 275 Ga. 213, 214 (2) (563 SE2d 863) (2002). “Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998). We therefore review the issue de novo. See Jordan v. State, 322 Ga. App. 252, 256 (4) (a) (744 SE2d 447) (2013).

The essential elements of a claim of quantum meruit are that the provider performed services valuable to the recipient that were requested by or knowingly accepted by the recipient, that the recipient’s receipt of the services without compensating the provider would be unjust, and that the provider expected compensation at the time the services were performed. Hollifield v. Monte Vista Biblical Gardens, 251 Ga. App. 124, 128-129 (2) (a) (553 SE2d 662) (2001). See also OCGA § 9-2-7 (“Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.”). And, even if there is an express contract,

if services not contemplated by the original agreement become necessary to achieve the contractual objective and are rendered and accepted, the law implies and enforces performance of a promise to pay for such extra services.

Puritan Mills, Inc. v. Pickering Constr. Co., 152 Ga. App. 309, 310 (1) (262 SE2d 586) (1979) (citations omitted).

In its complaint, which does not contain specific counts, KAP alleged that it entered into a contract to supervise the construction of improvements to Hardigan’s residence but that “[throughout the duration of the project, [appellants] ordered several additional improvements and further extensive renovations to be made to the residence”; that appellants “altered the scope of the project”; that “additional labor was required to remove improvements [already] complete [d] or in progress as well as to rebuild according to [appellants’] newly modified designs”; and that “[appellants] also significantly increased the scope of the project.” The complaint also alleges that appellants “were fully aware of any and all changes to the estimates previously provided”; that appellants “approved the changes and agreed to any and all ensuing changes to the originally agreed-upon price”; and that KAP remained uncompensated for the “reasonable value of [its] work.”

The Civil Practice Act, which has been effective since September 1,1967, “abolished ‘issue pleading,’ substituted in lieu thereof ‘notice pleading,’ authorized the pleading of conclusions, and directed that ‘all pleadings shall be so construed so as to do substantial justice.’ ” Nee v. State Farm Fire & Cas. Co., 142 Ga. App. 744, 745 (236 SE2d 880) (1977) (citation omitted). Thus, “a complaint is not required to set forth a cause of action, but need only set forth a claim for relief.” Oliver v. Irvin, 230 Ga. 248, 249 (1) (196 SE2d 429) (1973). See also Webb v. Bank of America, 328 Ga. App. 62 (761 SE2d 485) (2014). Accordingly, it has been held under the CPA that even a two-paragraph complaint that alleged damages arising out of the provision of services but that “contain[ed] no claim for quantum meruit and no details outlining such a claim,” raised “a fair inference” of a claim of quantum meruit. Gosule v. Bestco, Inc., 227 Ga. App. 863, 866 (2) (a) (490 SE2d 532) (1997). Likewise, a complaint that alleged

that on a given date “plaintiff at the request of the defendant . . . performed certain work, labor and services and furnished certain steel materials” etc., and that by reason thereof “defendant agreed to and became obligated to pay plaintiff the sum of $32,507.49” [and] that $32,507.49 “was the reasonable worth and value of the services performed and material furnished”

was sufficient to raise claims of both breach of contract and quantum meruit. G. E. C. Corp. v. Southern Fabricators, 122 Ga. App. 452, 455 (3) (177 SE2d 497) (1970). The allegations in the complaint in the present case, as well as the assertions in the amended pretrial order, are obviously sufficient to raise a claim of quantum meruit in addition to a claim of breach of contract.

Moreover, the case law cited by the appellants to the effect that KAP was required to plead quantum meruit and breach of contract in two separate counts of the complaint has been superseded by the CPA; the two cases either pre-date the adoption of the CPA or rely on such case law. See Stowers v. Hall, 159 Ga. App. 501, 501 (1) (283 SE2d 714) (1981) (physical precedent only) (relying on case law from 1960 for the proposition that claims of breach of contract and quantum meruit must be pled separately “in a two-count petition”) (citation omitted); Franklin v. Gwinnett County Public Schools, 200 Ga. App. 20, 25 (2) (407 SE2d 78) (1991) (relying on a 1946 case for the proposition that a party should assert different theories of recovery in separate counts in one suit); Brannen v. Lanier, 97 Ga. App. 30 (2) (102 SE2d 96) (1958); Spence v. Erwin, 200 Ga. 672, 673-674 (2), (3) (38 SE2d 394) (1946).

Finally, although a plaintiff is estopped to recover in quantum meruit where the parties have an express agreement “for the same thing existing at the same time between the same parties,” a party “is entitled to the reasonable value of services he performed which were . . . outside the scope of the written agreement” and “[t]he reasonable value of extra work performed in addition to what the contract contemplated can be recovered in quantum meruit.” Gerdes v. Russell Rowe Communications, 232 Ga. App. 534, 537 (3) (502 SE2d 352) (1998) (citation and punctuation omitted). Thus, where a jury is presented with conflicting evidence “regarding whether the additional work was included in the original agreement,” the contractor is “entitled to assert a claim in quantum meruit.” Biederbeck v. Marbut, 294 Ga. App. 799, 803 (3) (670 SE2d 483) (2008) (citation omitted). Compare Kwickie/Flash Foods v. Lakeside Petroleum, 246 Ga. App. 729, 730 (541 SE2d 699) (2000) (recovery in quantum meruit not authorized where plaintiff’s claim of quantum meruit is based on “the contract between the parties alone”); American Teleconferencing Svcs. v. Network Billing Systems, 293 Ga. App. 772, 777 (3) (b) (668 SE2d 259) (2008) (recovery under quantum meruit not allowed where claim sought the same “monies that were due under [the contract]”) (citation and footnote omitted).

In this case, KAP clearly raised the issue whether all of KAP’s services were covered by the Base Bid or whether the appellants requested and received additional services beyond the scope of that agreement. The amended pretrial order shows that the additional services issue was the central issue in the case. In the pretrial order, KAP asserted that the $1.2 millionBase Bid “represented the entirety of the work then contemplated,” hut “almost immediately after KAP began work according to . . . the Base Bid, Defendant Hardigan proceeded to increase the scope of the work significantly by ordering several additional improvements, renovations, fixtures, and changes to materials to be used in the Project.” (Emphasis supplied.) The appellants, on the other hand, asserted that the Base Bid was a “fixed price contract” that included “ ‘$100,000 of cushion’for upgrades and changes made during the construction process,” and that KAP never “submitt[ed any] written change orders or suggested that changes had been made which increased the contract price.” The entire trial concerned how much more, if any, KAP was entitled to recover than the amount specified in the Base Bid.

Because a claim of quantum meruit was raised in the pleadings and pretrial order, the jury was presented with evidence regarding that claim, and the law supports a claim of quantum meruit under KAP’s version of the facts, the trial court did not err by charging the jury on quantum meruit. See, e.g., Llop v. McDaniel, Chorey & Taylor, 171 Ga. App. 400, 402 (3) (320 SE2d 244) (1984) (trial court authorized to charge jury on law of quantum meruit where plaintiff hired attorney, attorney performed services of a stated reasonable value, plaintiff accepted the services but refused to pay, and as a result, the plaintiff was unjustly enriched).

2. The appellants next contend the trial court erred by denying their motion for partial summary judgment. In their motion, the appellants asserted that KAP’s damages should be limited to “the amount of the extras or changes to the amount of the Base Bid.” The appellants relied on Kicklighter’s deposition testimony to the effect that there were only thirteen categories of changes to the Base Bid contract; they argued that KAP sought to recover only the costs associated with those changes; and they alleged that those costs amounted to $379,536.53 and not $459,109.83 as KAP sought at trial. This issue is clearly moot.

Generally, after verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case. Where a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict (judgment) on that issue, any error in overruling the motion for summary judgment is harmless.

Legacy Academy v. Mamilove, LLC, 328 Ga. App. 775, 779 (1) (761 SE2d 880) (2014) (citation and punctuation omitted.). The only exception to the rule is that

if the legal issues raised and resolved in denying the motion for summary judgment were not considered at trial, then the denial of the motion is not rendered moot by the verdict and judgment. Under such circumstances, a party may appeal the denial of summary judgment as part of the party’s direct appeal from the final judgment, and the denial will be reviewed and determined by this Court.

Coregis Ins. Co. v. Nelson, 282 Ga. App. 488, 489 (1) (639 SE2d 365) (2006) (citations and punctuation omitted).

Here, the issue of KAP’s damages, including whether they should be limited, was raised and considered at trial. The trial court denied the appellants’ motion in limine to exclude testimony or evidence of KAP’s “total costs” of performing the contract thereby allowing the issue to be presented to the jury (see Division 3); Kicklighter testified at trial regarding the “changes to the project over the base bid”; appellants cross-examined Kicklighter on the method of calculating damages and about how the same issue was raised on summary judgment; KAP introduced invoices for the extra work performed; and even appellants’ own expert testified about the reasonableness of each and every expenditure by KAP whether contemplated by the Base Bid or contained in a request for additional work. Accordingly, because the legal issue raised and resolved in denying the motion for summary judgment was considered at trial, this enumeration of error is moot.

3. Finally, the appellants contend the trial court erred by denying their motion in limine to exclude testimony or evidence of KAP’s “total costs” of performing the contract. We review the trial court’s decisions on the admissibility of evidence, including a denial of a motion in limine, for an abuse of discretion. Forsyth County v. Martin, 279 Ga. 215, 221 (3) (610 SE2d 512) (2005); Toler v. Ga. Dept. of Transp., 328 Ga. App. 144, 145 (761 SE2d 550) (2014). And motions in limine should only be granted with great care and when there is no circumstance under which the evidence at issue could be admissible at trial:

By its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.

Decided November 21, 2014.

McCorkle & Johnson, Mathew M. McCoy, Catherine M. Bolger, Tawny D. Mack, for appellants.

Weiner, Shearouse, Weitz, Greenberg & Shawe, George P. Milmine II, Malcolm M. Mackenzie III, for appellee.

Andrews v. Wilbanks, 265 Ga. 555, 556 (458 SE2d 817) (1995) (citation omitted). The appellants have not shown an abuse of discretion in this case.

In their motion in limine, the appellants asserted that the $1,092,943 Base Bid represented the “contract price for the agreed scope of the work on the project”; that KAP admitted in a deposition that the total amount it spent on the changes/extras amounted to $379,536.53; that in addition to this amount, “[KAP] also intends to introduce evidence or testimony regarding the total costs of this project”; and that “this amount is separate and exceeds the total of the contract price plus the costs of the changes/extras.” KAP argued that this “total cost” evidence was irrelevant and would confuse the jury. The trial court denied the motion without elaboration. On appeal, the appellants argue that this Court should adopt federal jurisprudence that holds that the “total cost method” should be used only “when actual costs for the change are unavailable and there is no acceptable estimate of the costs involved in the change.” United States v. R. M. Wells Co., 497 FSupp. 541, 545 (S.D. Ga. 1980).

What the appellants miss, however, is that KAP presented evidence that the parties agreed that KAP would be compensated on a time and materials basis, which was explained to the jury to mean that KAP would receive payment for any labor and any material used in performing the work. Thus KAP was authorized to introduce all evidence of labor and material costs incurred on the project. Accordingly, the trial court did not abuse its discretion by denying the appellants’ motion in limine.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       The pretrial order and the amended pretrial order also contain straightforward assertions that significant work was performed in addition to that contemplated by the 2007 version of the agreement between the parties, that the appellant requested and accepted the work, and that KAP expected compensation for the work.

       The appellants also argue that the allegations in the complaint and the assertions in the pretrial orders fail to claim the correct measure of damages for a claim of quantum meruit. But again, under notice pleading, KAP was not required to set forth a perfect cause of action to put the appellants on notice of its claims.

       KAP’s portion of the amended pretrial order asserts the parties agreed that the entire project would be billed on a “time and materials” basis.


author: Phipps, Chief Judge.

text:
    A14A1200.
    MATTHEWS v. THE STATE.
    (766 SE2d 515)
   Phipps, Chief Judge.

Jamahl Matthews appeals his convictions for trafficking in cocaine, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He contends that the trial court erred by denying his motion to suppress, arguing that the arresting officer violated his Fourth Amendment rights by imper-missibly detaining and questioning him after the officer had “returned Mr. Matthews’ documents to him and given him a warning[, and the] traffic stop was over at that point.” We agree, and reverse.

“On appeal from a denial of a motion to suppress, this Court must construe the evidence most favorably to uphold the ruling of the trial court. . . . [T]he trial court’s application of law to facts which are undisputed is subject to de novo review.”

The record showed the following. In May 2009, the trial court held a hearing on Matthews’s motion to suppress. A sergeant with the criminal interdiction unit of the Georgia State Patrol was the only witness at the hearing. The officer testified that he had 15 years of law enforcement experience, and that he taught an interdiction program on the state and federal levels. He testified that he had received training “as far as travel patterns pertaining to drugs,” where drugs may be coming from, and the routes taken to transport drugs; he added that Atlanta was the “number three [drug] distribution center in the United States,” and that Interstate 20 was a major drug corridor. The officer testified that “borrowing somebody else’s car” was an occurrence “we see quite frequently” in the drug trade, permitting “the plausibility of saying, well, it’s not my car, so therefore, what’s in [the] car doesn’t belong to me.”

The officer testified that on July 7, 2008, around 4:00 p.m., he was patroling the eastbound lanes of Interstate 20 in Morgan County when he observed a Toyota Camry vehicle being driven with the “tag bracket. . . covering up the expiration and the name of [the] state.” The officer stopped the vehicle; Matthews was the vehicle’s sole occupant. The officer asked Matthews to exit the vehicle so that he could show Matthews the tag obstruction. As they conversed, Matthews informed the officer that he did not own the vehicle, and that it belonged to his mother-in-law. As the officer asked Matthews for his license, registration, and insurance, he observed that Matthews appeared “extremely nervous,” exhibiting a “tick of rubbing his head,” and that the “underling of his eye... [was] just trembling.” The officer testified that Matthews was “unusually nervous.”

Matthews told the officer that he had traveled to Atlanta to visit a cousin, and that he had been there for three days. The officer did not see any luggage in the vehicle, and he asked Matthews about that. Matthews told him that he had left his clothes in Atlanta, explaining that he was thinking about returning to Atlanta the following weekend. The officer testified:

[I]n and of itself it’s not a crime that he left his luggage in Atlanta, but... he first of all basically tried to deny it in the fact that he had the same clothes on for a period of time and when he saw that I did not believe I said you wore those same clothes for three days? He changed his story to I left my clothes in Atlanta. . . . And that’s where it started going downhill for me to disbelieve his itinerary.

Matthews had told the officer that he worked in South Carolina, and the officer testified that he had become suspicious that Matthews was on a “turnaround trip,” that he was “coming out of Atlanta and has not spent a great deal of time up there.” In the officer’s experience, it was “not plausible that someone would travel six and a half, seven hours, visit three days with a cousin, and leave all their clothes, toothbrush, and everything in Atlanta to come back and stay in South Carolina for an undetermined period of time.”

The officer walked back to his vehicle, called a K-9 handler who was located less than five minutes away, and ran a check on Matthews’s driver’s license and tag registration. The officer then exited his vehicle, and gave Matthews “all of his items back, his driver’s license, and... wrote him a warning for his improper tag display.” The officer affirmed that “the traffic stop was over at that point.” However, the officer continued to detain Matthews and told him that he suspected that Matthews was lying about his itinerary, that Matthews had driven to Atlanta that morning, and that he had drugs in the vehicle. The officer asked Matthews for permission to search the vehicle, but Matthews did not consent. The officer told Matthews that a K-9 was en route, and within moments, “the K-9 car arrived.”

The K-9 officer deployed the dog around the vehicle, and the dog gave a positive alert. During the positive alert, Matthews told the officer who had stopped him that he had cocaine in the vehicle. The officer searched the vehicle and located in the center armrest approximately 55 grams of cocaine, a loaded pistol, and digital scales. The officer arrested Matthews.

The officer testified that during his initial conversation with Matthews, based on the following facts, he believed that he had developed reasonable suspicion to detain Matthews beyond the conclusion of the investigation that warranted the stop: (1) Matthews was driving a borrowed vehicle; (2) Matthews was driving on Interstate 20, which the officer believed to be a major drug corridor; (3) Matthews was traveling six-and-a-half, seven hours but had no luggage in the vehicle; (4) Matthews’s claim that he had been “away from his family’1’ for three days was implausible; (5) Matthews’s claim that he had left his luggage in Atlanta was “not something that a prudent person would do”; and (6) Matthews was extremely nervous. The trial court denied Matthews’s motion to suppress.

Claims that [an investigative] detention was unreasonably prolonged are of two sorts. In some cases, a detention is prolonged beyond the conclusion of the investigation that warranted the detention in the first place [.] ... In other cases, the detention is not prolonged beyond the conclusion of the investigation that originally warranted the detention, but it is claimed that the investigation took too long, perhaps because the officer spent too much time inquiring about matters unrelated to the investigation.

Matthews does not question the efficacy of the stop, and the State concedes that the investigation that warranted the stop had ended after the officer had returned Matthews’s documents and issued a warning citation. Therefore, we do not determine those issues here. Matthews questions the propriety of his detention after the officer had returned his documents to him and issued a warning citation. Matthews argues that because these latter acts ended the investigation that had justified the stop, at that point in time, the officer had no right to detain him any longer, ask him questions, or search the vehicle, as the officer lacked any “particularized and objective basis to further investigate for illicit drug activity.”

“[T]o justify additional questioning of a driver and the search of his vehicle following a routine traffic stop, an officer must have reasonable suspicion of criminal conduct.”

To satisfy this “reasonable suspicion” standard, the officer’s investigation must be justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity. Although this suspicion need not meet the higher standard of probable cause, it must be more than a mere caprice or a hunch. In sum, when a traffic stop has been completed and the officer questions and detains a suspect for other reasons, he must have reasonable suspicion of other criminal activity.

A police officer may lengthen the detention for further questioning beyond that related to the initial stop if he has an “objectively reasonable and articulable suspicion illegal activity has occurred or is occurring.”

To determine whether a reasonable articulable suspicion exists, courts must look to the totality of the circumstances. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. Among the circumstances for the court to analyze are objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers.

“The State bears the burden of proving that the search of the car was lawful, and to carry this burden, the State must show that it was lawful to detain [Matthews] until the time the drug dog indicated the presence of drugs.”

In this case, the State did not meet its burden. The officer stated that he believed that he had developed reasonable suspicion to detain Matthews beyond the conclusion of the investigation that warranted the stop because, among other things, the officer observed that Matthews was extremely nervous, was driving a borrowed vehicle, and was traveling out of state but had no luggage. But this court has held that similar facts did not provide “a particularized and objective basis for suspecting that [a driver] was, or was about to be, engaged in criminal activity.” And although Interstate 20, like any other route, may be traveled upon to transport illegal substances, many law-abiding citizens routinely utilize that major thoroughfare for legal purposes, such as travel to school and work; there was no testimony that Matthews’s destination, like the city of his origination, was a known drug source. Moreover, as Matthews told the officer that he had visited a cousin in Atlanta, Matthews had not been “away from family,” and the officer’s contrary conclusion was not supported by the evidence.

The evidence also showed that when Matthews was explaining the absence of luggage in the vehicle, he initially told the officer that he had worn the same clothes for three days, but he later stated that he had left his clothes in Atlanta. But as this court has held, “[m]eaningless inconsistencies in answers to police questions ... do not give rise to reasonable, articulable suspicion.” In Ward v. State, although the driver had lied to police about the reason for her presence at a certain location, this court held that the mere fact that the driver had told the lie did not give rise to reasonable, articulable suspicion of criminal activity. Even if Matthews did wear the same clothes for three days, or make a decision (that the officer believed was unwise) to leave his clothes in Atlanta with a relative; and even if Matthews’s statements to the officer about his clothing were inconsistent; that behavior and those statements did not constitute either illegal or sufficiently unusual conduct that provided any objectively reasonable basis for suspecting that Matthews was, or was about to be, engaged in criminal activity. Accordingly, the officer was not authorized to detain Matthews beyond the conclusion of the investigation of the traffic infraction.

Decided November 21, 2014.

Darel C. Mitchell, for appellant.

FredricD. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.

Under the totality of the circumstances, the evidence seized in the ensuing search of Matthews’s vehicle should have been suppressed by the trial court, and Matthews’s conviction, which was based on the illegally seized contraband, must be reversed.

Judgment reversed.

Ellington, P. J., concurs. McMillian, J., concurs in judgment only.

        Jones v. State, 253 Ga. App. 870 (560 SE2d 749) (2002) (citations and footnote omitted).

        Rodriguez v. State, 295 Ga. 362, 369 (2) (b) (761 SE2d 19) (2014) (citation omitted).

       See, e.g., State v. Allen, 328 Ga. App. 411 (762 SE2d 111) (2014) (determining that investigation that justified traffic stop had ended after officer had completed a written warning citation even though officer had not immediately given the completed warning citation to the driver; at that point, officer had not formed any reasonable articulable suspicion of other criminal activity to justify further detention or questioning of driver, yet officer continued to detain driver and began a drug investigation).

        Padron v. State, 254 Ga. App. 265, 268 (1) (562 SE2d 244) (2002) (citation and footnote omitted).

        State v. Whitt, 277 Ga. App. 49, 50 (625 SE2d 418) (2005) (citation and emphasis omitted).

       Id. at 49 (citation omitted).

        State v. Thompson, 256 Ga. App. 188, 189-190 (569 SE2d 254) (2002) (citations and punctuation omitted).

        Dominguez v. State, 310 Ga. App. 370, 372 (714 SE2d 25) (2011) (citation omitted).

        Payne v. State, 244 Ga. App. 734, 743 (5) (536 SE2d 791) (2000) (driver’s nervousness combined with fact that he was driving a rental car, that car had been rented out of Florida by another individual, and that driver had no luggage, did not support a reasonable suspicion of drug activity) (citation omitted).

       See, e.g., Thompson, supra at 190 (“Although laundry detergent and dryer sheets can be used to mask the odor of an illegal substance, they are themselves legal substances that can be used for a legal purpose and thus do not justify the officer’s further detention of [appellant]” where such odor was coupled with extraordinarily nervous and defensive behavior).

       Compare Giles v. State, 284 Ga. App. 1, 2 (1) (642 SE2d 921) (2007) (“red flag” indicators that appellant was engaged in drug smuggling criminal activity included, inter alia, a trooper’s training and knowledge that Interstate 20, where appellant was stopped, was a “known drug route,” and that the appellant’s city of origination (Houston) and city of destination (Atlanta) were known drug sources).

        Ward v. State, 277 Ga. App. 790, 793 (627 SE2d 862) (2006) (footnote omitted).

       Supra.

       Id.; cf. Jones v. State, 259 Ga. App. 849, 852 (578 SE2d 562) (2003) (reasonable, articulable suspicion of criminal activity existed where driver exhibited nervous behavior in addition to police officer’s clear observation that driver appeared to be hiding something under vehicle seat and driver denied this behavior).

       See generally Ward, supra; Migliore v. State of Ga., 240 Ga. App. 783, 786 (525 SE2d 166) (1999).

       See Ward, supra; Migliore, supra.

       See Ward, supra; Payne, supra; Migliore, supra.


author: Phipps, Chief Judge. ELLINGTON, Presiding Judge,

text:
    A14A1220.
    ALBERS v. GEORGIA BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.
    (766 SE2d 520)
   Phipps, Chief Judge.

On November 19, 2009, Christopher Albers was given written notice that he would be terminated from his position as chief of police at Georgia Perimeter College (“GPC”). Asserting a wrongful termination claim under the Georgia Whistleblower Statute,* Albers sued the Georgia Board of Regents of the University System of Georgia, GPC, and GPC’s president. The defendants moved for summary judgment, arguing that the facts did not support a whistleblower claim and that the applicable statute of limitation barred the action. The trial court granted the motion, and Albers appeals. For reasons that follow, we reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmoving party.

So viewed, the record shows that Albers began working for GPC as chief of police in March 2005. In this role, he served as chief executive of GPC’s department of public safety, overseeing security services, police procedure, parking control, homeland security, and other security matters. According to Albers, his supervisor, Executive Vice President Ronald Carruth, had never criticized his performance prior to November 2008. That changed, however, following an incident in late October of that year.

On October 28,2008, a GPC student reported to the public safety department that his laptop was missing from a classroom. GPC officers investigated, concluded that another student had taken the computer, and obtained a warrant for her arrest. In the meantime, the suspect’s mother contacted the school, complaining about how her daughter had been treated by GPC officers. After this complaint, several college administrators, including the dean of student services and director of human resources (“HR”), instructed Albers to speak with the district attorney about having the charges against the student reduced or dropped. Albers refused, telling Carruth: “[I]t would be inappropriate and unethical for me to try and influence the DA in any way as to how he would handle this case.”

At some point, the HR director commenced her own investigation into the laptop incident. Albers and his deputy chief objected to the HR inquiry, asserting that it interfered with their ongoing criminal investigation and obstructed justice. Albers discussed the concurrent HR investigation with an assistant district attorney, who indicated that HR’s inquiry was improper. Following this conversation, Albers informed Carruth that GPC should not attempt to influence the outcome of the criminal prosecution, and he continued to object to the administration’s interference in the police investigation.

The record further shows that Albers’s interference objections were not limited to the laptop incident. According to Albers, the administration “repeatedly inserted] itself improperly into criminal investigations.” On one occasion, for example, Anthony Tricoli, the president of GPC, told Albers how to proceed with a criminal investigation involving a student and instructed him to work directly with the dean of student services. When Albers objected that Tricoli had overstepped his bounds and was interfering with a police inquiry, Tricoli responded, “I’m the President.”

By the spring of 2009, the relationship between the college administration and the public safety department “was extremely strained,” and Albers believed that his job was in jeopardy. According to Albers, Carruth was undermining his authority, and the HR director was overtly hostile toward him. Also during this period, an audit revealed that Albers had used a GPC warehouse to receive and store large amounts of grain that he needed for his “home brewers” beer-making club. Although GPC’s director of logistical services had given Albers permission to use the warehouse, Carruth and Tricoli asserted that Albers had exercised poor judgment in having beer grain delivered to the campus.

On June 16, 2009, GPC issued a written reprimand and one-day suspension to Albers in connection with the beer grain deliveries. A few days later, on June 19, 2009, GPC suspended Albers indefinitely after concluding that he had violated a direct order not to discuss certain matters with his staff.

Carruth met with Albers on June 25, 2009, and told him that he should resign or he would be terminated. Albers initially agreed to resign, and Carruth indicated to Albers that he was in a “transition period,” which Albers understood to mean a “transition out the door.” Over the next few months, Albers performed special projects for Carruth, but he no longer functioned as the GPC police chief and had no authority within the GPC public safety department. At that point, Albers knew his employment would be ending. He also “felt that [he] was being retaliated against for . . . upholding] the law.”

In August 2009, Carruth asked Albers to sign a “Letter of Understanding” that outlined, among other things, his limited responsibilities and duties going forward at GPC, as well as an agreement that he submit his resignation. The letter further stated: “[I]t is estimated that your last day with GPC will be December 31, 2009, or whenever you find employment, whichever comes first.” Albers refused to sign the letter, did not agree to its terms, and told Carruth that he had decided not to resign from his position.

On November 19, 2009, Carruth issued a termination letter to Albers, which provided: “You will be terminated from your position effective December 11,2009 for unsatisfactory job performance.” Less than one year later, on November 10, 2010, Albers filed this suit, asserting that his termination constituted improper retaliation under the whistleblower statute. The defendants subsequently moved for summary judgment. The trial court granted the motion, finding that (1) Albers did not engage in protected whistleblowing activity; (2) even if Albers had engaged in protected activity, no causal connection existed between that activity and his termination; (3) Albers was terminated for legitimate business reasons; and (4) Albers’s claim was barred by the statute of limitation.

1. Under Georgia’s Whistleblower Statute, a public employer may not retaliate against a public employee for disclosing “a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency” or for “objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.” The term “retaliate” refers to

the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action taken by a public employer against a public employee in the terms or conditions of employment for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency.

To establish a claim under the statute, a public employee must demonstrate that (1) he was employed by a public employer; (2) he made a protected disclosure or objection; (3) he suffered an adverse employment action; and (4) there is some causal relationship between the protected activity and the adverse employment action. The parties do not dispute the trial court’s finding that Albers was a public employee employed by a public employer. The question on appeal is whether he offered evidence supporting the other elements of his claim.

(a) The defendants argue, and the trial court found, that Albers never engaged in protected whistleblowing activity. Albers, however, objected to the administration’s directive that he speak with the district attorney about having the charges against the suspected laptop thief dropped or reduced. He also took exception to the HR laptop investigation, relaying to Carruth his understanding from an assistant district attorney that the investigation was improper and that “it is illegal for any entity to try and influence the outcome of a criminal case in any way.”

The trial court dismissed these objections, finding that they “were about potential, speculative, or nonexistent violations ... none of which constitute protected activity under [OCGA § 45-1-4].” But the Whistleblower Statute protects a public employee who objects to employer-related activity that he reasonably believes violates the law. And particularly given Albers’s communication with the assistant district attorney, at least some evidence supports the conclusion that Albers opposed specific, ongoing activity by GPC’s administration that he reasonably believed obstructed justice. The trial court, therefore, erred in granting summary judgment on this ground.

(b) The trial court also found summary judgment appropriate on the issue of causation. According to the court, the substantial delay between the alleged whistleblowing activity and Albers’s termination undermined any causal link between the events as a matter of law. We disagree.

The causation element in a whistleblower case “is construed broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.”* It is true that timing may be important in the causation analysis. As we have noted, a retaliation claim fails “[i]f there is a substantial delay between the protected expression and the adverse action in the absence of other evidence tending to show causation.” In this case, however, other evidence raises a question of fact as to causation.

Carruth testified that one of the underlying reasons for Albers’s termination was the inability of the public safety department and the HR department to work as a team. He explained that the relationship between these departments deteriorated during the laptop investigation, as Albers continually objected to the HR inquiry and his deputy chief threatened to arrest the HR director for involving herself in the criminal investigation. Based on such testimony, a jury could conclude that Albers’s handling of the laptop incident, his expressed objections to the concurrent HR investigation, and the concerns he raised about administrative interference factored into the termination decision. Accordingly, the record contains some evidence of a causal connection between the alleged whistleblowing activity and the termination.

(c) The trial court also found that GPC terminated Albers for legitimate business reasons — including insubordination, failure to effectively manage his subordinate employees, and his involvement with the beer grain deliveries — rather than for participating in protected whistleblowing activity. Again, however, there is some evidence that the bad relationship between the HR and public safety departments, which deteriorated during the laptop investigation, was a catalyst for the termination decision. As explained by Carruth, “the wheels came off of the Public Safety car” with the laptop incident.

Although the defendants offered other reasons for the termination, a jury could find that Albers’s continuing claims of administrative impropriety during the laptop investigation undermined the public safety-HR relationship and drove the termination decision. Under these circumstances, a factual issue remains as to whether the defendants dismissed Albers based on protected whistleblowing activity.

2. Finally, the trial court concluded that Albers’s claim was barred by the applicable statute of limitation. Under OCGA § 45-1-4 (e) (1), a public employee must institute a whistleblower claim “within one year after discovering the retaliation or within three years after the retaliation, whichever is earlier.” Albers filed his claim on November 10, 2010, less than one year after receiving the November 19, 2009 termination letter. The trial court, however, found that Albers discovered the retaliation much earlier, rendering his claim untimely.

In reaching this decision, the court relied on Stokes v. Savannah State University, a federal decision that addresses when a cause of action accrues under OCGA § 45-1-4. The Stokes court noted that, under federal anti-discrimination law,

the accrual date of the cause of action for limitations purposes is the date on which the adverse employment action is communicated to the plaintiff, even if the plaintiff continues working for a period of time or if there is an internal appeals procedure.

Applying this reasoning to the Whistleblower Statute, the Stokes court found that its claimant became “aware of the alleged retaliation when he received [an] initial letter of termination.” Similarly, in Tuttle v. Bd. of Regents of the Univ. System of Ga., a case recently decided by this court, we held that a whistleblower’s claim accrued when he received verbal and written notice that he was to be terminated on a particular date. Upon receiving the notice, the claimant “discovered the retaliation in question.”

Citing Stokes, the trial court determined that the adverse employment action was communicated to Albers on several occasions in the summer of 2009, including on June 25, 2009, when Carruth told him that he needed to resign or would be terminated, and in August 2009, when Albers reviewed a “Letter of Understanding” that addressed his anticipated resignation. In the trial court’s view, the limitation period likely began in June, but commenced no later than August 2009.

Again, we disagree. Both Stokes and Tuttle are distinguishable from the situation here. The claimants in those cases received notice explaining an upcoming adverse employment action. The statute of limitation commenced at that point — when the plaintiffs learned that their employers had made a definitive decision to take adverse action against them.

In contrast, there is no evidence that Albers was informed before November 19, 2009, that he was actually being terminated. Undoubtedly, the defendants had threatened termination during the summer, and Albers suspected that his employment would be ending. He also believed that the defendants were retaliating against him. But he was not terminated at that point. And although the defendants asked Albers to sign a Letter of Understanding in August 2009 through which the parties would have agreed to a December 2009 end-date for his employment, Albers refused to enter the agreement, and he rejected all efforts to secure his resignation. Finally, despite the dissent’s assertion that there was no evidence that Carruth’s decision communicated to Albers on June 25, 2009 was less than final, the HR director testified that the defendants did not make a final termination decision until “right before [Albers] was actually terminated” via the November 19, 2009 letter.

As we noted in Tuttle, “the true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.” Prior to November 19, 2009, Albers had not been terminated or provided with any definitive statement that he would be terminated as of a certain date. He did not resign, he refused to sign the Letter of Understanding regarding his employment status, and he continued to work at GPC. The situation was in flux, and, according to the HR director, no final decision was made until just before Carruth issued the termination letter. Given these circumstances, at least some evidence shows that the alleged retaliation about which Albers now complains — his termination from GPC — had not yet occurred and thus could not have been discovered before November 19, 2009. The trial court, therefore, erred in granting summary judgment to the defendants on their statute of limitation defense.

Judgment reversed.

Barnes, P. J., andMcFadden, J., concur. Ray, J., concurs in Division 1 and concurs in judgment only as to Division 2. Andrews, P. J., Ellington, P. J., and McMillian, J., dissent.

ELLINGTON, Presiding Judge,

dissenting.

In my view, the trial court correctly ruled in this case that Albers failed to file his claim for wrongful termination within the time allowed. Accordingly, I respectfully dissent.

OCGA § 45-1-4 (e) (1) provides:

A public employee who has been the object of retaliation in violation of this Code section may institute a civil action in superior court for relief. . . within one year after discovering the retaliation or within three years after the retaliation, whichever is earlier.

Under Georgia law, “when the question is raised as to whether an action is barred by a statute of limitation, the true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.” (Citation and punctuation omitted.) Sandy Springs Toyota v. Classic Cadillac Atlanta Corp., 269 Ga. App. 470, 471 (1) (604 SE2d 303) (2004). Accordingly, as we held in another whistleblower case, a public employee’s cause of action accrued and the one-year limitation period began to run on the date when the employee first discovered the retaliation in question, in that case, when he was advised that his position was to be eliminated. Tuttle v. Bd. of Regents of the Univ. System of Ga., 326 Ga. App. 350, 353-354 (1) (756 SE2d 585) (2014) (physical precedent only) (period was not tolled until the employer’s former supervisor advised him that employer had retaliated against him).

In this case, Albers testified that he was aware that his employment was being terminated when his immediate supervisor, Ron Carruth, told him on June 25, 2009, that he needed to resign or be terminated. Further, Albers testified that, from that date, he believed “[he] was being terminated unjustly and without cause” and “in retaliation] against. . . upholding] the law” (Emphasis supplied.) He began to take action to protect his interests in anticipation of potential litigation, including secretly tape-recording meetings with his supervisors and other college officials. Although the record shows that Carruth did not memorialize his decision in writing until the November 19, 2009 letter cited by the majority, Albers failed to identify any evidence that Carruth’s decision, communicated on June 25, 2009, was less than final. Significantly, within a week or two of this communication, Albers surrendered his badge, gun, and official vehicle, stopped reporting to his office, and stopped carrying out the duties of the chief of police. Thus, although Carruth left open for some months the issues of the formal mechanism of Albers’ separation (voluntary resignation versus involuntary termination) and the last day he would be on the payroll, it is undisputed that Albers discovered the alleged retaliation by June 25, 2009. Accordingly, his complaint, filed on November 10, 2010, was filed outside the one-year statutory limit. Tuttle v. Bd. of Regents of the Univ. System of Ga., 326 Ga. App. at 354-355 (1) (physical precedent only).

Decided November 21, 2014

Billips & Benjamin, Matthew C. Billips, for appellant.

Samuel S. Olens, Attorney General, Shelley S. Seinberg, Assistant Attorney General, for appellees.

For these reasons, I would affirm the ruling of the trial court.

I am authorized to state that Presiding Judge Andrews and Judge McMillian join in this dissent.

       See OCGA § 45-1-4.

       See Caldon v. Bd. of Regents of the Univ. System of Ga., 311 Ga. App. 155 (715 SE2d 487) (2011).

       See id.

       OCGA § 45-1-4 (d) (2), (3).

       OCGA § 45-1-4 (a) (5).

       See OCGA § 45-1-4 (d); see also Forrester v. Ga. Dept. of Human Svcs., 308 Ga. App. 716, 722 (1) (a) (708 SE2d 660) (2011) (physical precedent only) (setting forth elements of prima facie case under OCGA § 45-1-4).

       See, e.g., Brathwaite v. Fulton-DeKalb Hosp. Auth., 317 Ga. App. 111, 115 (2) (729 SE2d 625) (2012) (physical precedent only) (affirming grant of summary judgment to defendant where disclosures supporting whistleblower claim involved potential illegal activity that might occur in future).

       OCGA § 45-1-4 (d) (3).

       See OCGA § 16-10-24 (a) (“[A] person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.”); Kendrick v. State, 324 Ga. App. 45, 46 (1) (749 SE2d 45) (2013) (whether defendant’s conduct constituted obstruction of a law enforcement officer “was for the trier of fact to decide”).

       See OCGA § 45-1-4 (d) (3). We express no opinion as to whether any other objections or disclosures by Albers might support his claim under OCGA § 45-1-4.

        Freeman v. Smith, 324 Ga. App. 426, 431 (1) (750 SE2d 739) (2013) (citation and punctuation omitted); see also Forrester, supra at 726 (1) (a) (iv) (“plaintiff can establish such a causal connection by showing that the decision-maker was aware of the protected disclosure and that the disclosure and action were not wholly unrelated”) (physical precedent only).

        Freeman, supra (citation and punctuation omitted).

       Compare id. at 433 (whistleblower defendant entitled to summary judgment where substantial delay existed between whistleblowing activity and adverse employment action and plaintiff offered no evidence of a causal link).

       See Jones v. Bd. of Regents of the Univ. System of Ga., 262 Ga. App. 75, 81-82 (4) (585 SE2d 138) (2003) (trial court erred in granting summary judgment to defendant on whistle-blower claim where plaintiff presented circumstantial evidence that he was terminated in retaliation for making protected disclosure); compare Caldon, supra at 160 (defendants in whistleblower case entitled to summary judgment where they offered legitimate reasons for termination and plaintiff “failed to point to any other evidence that would establish a fact question for the employer’s motive”).

       2007 U. S. Dist. LEXIS 90120 (S.D. Ga. Dec. 7, 2007), aff’d, 291 Fed. Appx. 931 (11th Cir. 2008).

       Id. at *4 (citations omitted).

       Id.

       326 Ga. App. 350 (756 SE2d 585) (2014) (physical precedent only).

       Id. at 354 (1) (a).

       Id.

       We note that neither Stokes, which is a federal decision, nor Tuttle, which is physical precedent only, are binding on this court. See Court of Appeals Rule 33 (a); Baskin v. Ga. Dept. of Corrections, 272 Ga. App. 355, 359 (3) (612 SE2d 565) (2005) (“Decisions of federal courts are not binding authority on this court, but their reasoning may he persuasive.”).

       Although other adverse actions were arguably taken against Albers — such as stripping him of his duties as police chief— he does not allege a retaliation claim based on these actions. He complains only that he was wrongfully terminated.

        Tuttle, supra at 353 (1) (a) (citation and punctuation omitted).

       See OCGA § 45-1-4 (e) (1); see also Orquiola v. Nat. City Mtg. Co., 510 FSupp.2d 1134, 1152 (N.D. Ga. 2006) (“[Njumerous courts have concluded that verbal reprimands and threats of termination do not constitute adverse employment actions.”) (citation and punctuation omitted).

       See also Stokes v. Savannah State Univ., 291 Fed. Appx. 931, 932 (11th Cir. 2008) (employee discovered retaliation on the date he received his supervisor’s letter of termination, or at the latest on the date the president of the university affirmed the decision to terminate).