Leathers v. Timex Corp.

• Decision Date: 11 March 1985
• Docket Number: No. 69725,69725
• Citation: Leathers v. Timex Corp., 330 S.E.2d 102, 174 Ga.App. 430 (Ga. App. 1985)
• Parties: LEATHERS v. TIMEX CORPORATION.
• Court: Georgia Court of Appeals

Page 102

330 S.E.2d 102

174 Ga.App. 430

LEATHERS v. TIMEX CORPORATION.

No. 69725.

Court of Appeals of Georgia.

March 11, 1985.

Rehearing Denied April 1, 1985.

Turner Leathers, pro se.

R. Byron Attridge, L. Joseph Loveland, Jr., Robert D. Hayes, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

The appellant, Turner Leathers, appeals pro se from the grant of a motion for judgment on the pleadings to defendant, Timex Corporation. Leathers was an employee of Timex. His complaint alleges that on or about April 1, 1975, he retired from his employment with defendant. He avers that at that time he received "assurances" from the executive vice-president of Timex that although he was retiring in April 1975 his pension would be computed under the new pension plan which was to go into effect on January 1, 1976. Leathers said he was not familiar with the amount of money he should be receiving but had been told it would be $9,600 per year and he was receiving only $6,900 per year. He made inquiry of Timex for a period of two years to determine what was the basis for his pension and it was not until July 1977, that he received an explanation and discovered that he was not being paid under the pension plan which went into effect on January 1, 1976, but was paid under the old and less favorable pension plan in effect on the date of his retirement in 1975.

Plaintiff filed this action on March 11, 1983. His attorney consented to an indefinite extension of time to Timex to answer because they needed to research records dating back from five to fifteen years. Leathers dismissed his counsel before the judge in chambers and Leathers' discharged counsel advised Timex that the trial court had directed defendant's answer be filed within 30 days. Timex timely filed its answer, including inter alia, the defense that plaintiff's claim was barred by the statute of limitations. Timex later moved for judgment on the pleadings on the basis that plaintiff's claim was barred by the four-year statute of limitations on oral contracts under OCGA § 9-3-25. The trial court granted defendant's motion and plaintiff brings this appeal pro se. Held:

1. Appellant, in his brief, attaches the affidavits of the Regional and District Sales Managers of Timex, specially made and presented for inclusion in this appeal. The record does not contain these affidavits. "The burden is on the party alleging error to show it affirmatively by the record." Shepherd v. Shepherd, 225 Ga. 455, 457, 169 S.E.2d 314. A brief cannot be used in lieu of the record for adding evidence to the record. Lowery v. Horn, 147 Ga.App. 880, 251 S.E.2d 840; Finley v. Franklin Aluminum Co., 132 Ga.App. 70, 71, 207 S.E.2d 543; Maloy v. Dixon, 127 Ga.App. 151, 154, 193 S.E.2d 19. We are required to take our evidence from the record and not from the brief of either party. Testimony of these affiants will not be considered.

2. Facts alleged in the complaint "are constructive admissions in favor of the defendant.... The plaintiff by introducing them in his bill, and making them a part of the record, precludes himself from disputing their truth, whether they be true or false. The allegations and admissions of the complainant's bill are, therefore, evidence against him. [Cits.]" Reynolds v. Estate of Reynolds, 238 Ga. 1, 3, 230 S.E.2d 842, cert. den. 430 U.S. 968, 97 S.Ct. 1651, 52 L.Ed.2d 360. Plaintiff's complaint admitted he retired on April 1, 1975. This action was filed on March 11, 1983, more than seven years and seven months after his retirement. Plaintiff alleged that his entitlement to be retired under the 1976 pension plan was based on an oral contract of the Timex Vice- President. The statute of limitations for bringing an action on an oral contract is four years. OCGA § 9-3-25 (formerly Code Ann. § 3-706); Piedmont Life Ins. Co....