Hightower v. Kendall Co.

• Decision Date: 12 February 1997
• Docket Number: No. A96A2147,A96A2147
• Citation: 483 S.E.2d 294,225 Ga.App. 71
• Parties: , 97 FCDR 613 HIGHTOWER v. KENDALL COMPANY.
• Court: Georgia Court of Appeals

Page 294

483 S.E.2d 294

225 Ga.App. 71, 97 FCDR 613

HIGHTOWER v.KENDALL COMPANY.

No. A96A2147.

Court of Appeals of Georgia.

Feb. 12, 1997.

Reconsideration Denied March 4, 1997.

Certiorari Dismissed June 27, 1997.

David T. Hightower, pro se.

Fisher & Phillips, Charles Kelso and Anderson B. Scott, Atlanta, for appellee.

SMITH, Judge.

Pro se plaintiffDavid Hightower filed this action for wrongful discharge against his employer, Kendall Company.He also claimed that Kendall made "mean spirited," false and misleading statements to the Georgia Department of Labor in order to deny him unemployment benefits.Summary judgment was granted in Kendall's favor, and Hightower appeals.

Construed in Hightower's favor, evidence was presented that he was employed as a truck loader at Kendall's warehouse for approximately eight years before he was discharged.He did not work pursuant to a contract but was paid hourly wages as an at-will employee.His supervisor, Joiner, testified via affidavit that Hightower was suspended without pay and then fired following an investigation because Hightower loaded pallets onto outgoing trucks contrary to Joiner's instructions and established company policy.

1.Hightower raises several arguments as to why his termination was wrongful.These arguments are immaterial."Employment in Georgia is terminable at the will of either party[cit.] so an employee has no entitlement to a certain term of employment unless a contract exists therefor."Golden v. Nat. Svc. Indus., 210 Ga.App. 53, 435 S.E.2d 270(1993).It is undisputed that Hightower did not work pursuant to a contract and that his employment was terminable at will.Consequently, it was Kendall's prerogative to discharge Hightower "with or without cause and regardless of its motives ... without liability."(Citations and punctuation omitted; emphasis in original.)Bendix Corp. v. Flowers, 174 Ga.App. 620, 330 S.E.2d 769(1985).See alsoJohnson v. Hames Contracting, 208 Ga.App. 664, 666, 431 S.E.2d 455(1993).Hightower therefore has no claim for wrongful termination.

We note Hightower's contention that Joiner's affidavit was "invalid."Disagreement with another's affidavit testimony does not render that testimony invalid.Additionally, if Hightower wanted to dispute facts, it was his burden on summary judgment to do so in the trial court.See generallyLau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474(1991).Hightower also contends the trial court erroneously failed to conduct a hearing on the motion for summary judgment.Neither party requested oral argument, however, and the trial court consequently did not err in granting the motion without a hearing.Weir v. McGill, 203 Ga.App. 431, 433-434(4), 417 S.E.2d 57(1992).

2.The alleged statements by Kendall to the Georgia Department of Labor likewise provide no basis for liability.They were "absolutely privileged and shall not be made the subject matter or basis for any action for slander or libel in any court of the State of Georgia."OCGA § 34-8-122(a).

3.Hightower's notice of appeal and brief contain new allegations of slander not raised in Hightower's complaint and an extended discussion of the law of libel.He appears to argue that he was libeled by prior warning letters to him, which were attached to Joiner's affidavit.He also alleges that Kendall wrongfully told other employees that he was discharged for theft and dishonesty.These claims were not raised below, and we will not consider them here.SeeLong v. Marion, 182 Ga.App. 361, 362, 355 S.E.2d 711(1987), aff'd, 257 Ga. 431, 360 S.E.2d 255(1987).Moreover, any argument that the affidavits served as a basis for a libel claim is foreclosed by OCGA § 51-5-8, which states, "All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged.However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous."As for Hightower's additional claim that a negligence claim remains pending, we note simply that although the complaint does mention negligence, Hightower's claim is for wrongful discharge, which is intentional in nature.

4.Hightower contends the trial court's failure to compel Kendall to answer "post judgment" interrogatories rendered its grant of summary judgment premature.The only interrogatories appearing in the record are a set of 54 interrogatories, erroneously styled "in Fi.Fa." served by Hightower on Kendall about six weeks after Hightower filed his complaint.Those interrogatories inquired into several aspects of Kendall's business activities, including pallet handling policies, employee turnover rates and the downsizing of Kendall's other plants.Kendall objected to all but one of these interrogatories on the ground that they were ...