author:
Banke, Presiding Judge.
      Beasley, Judge,

text:
    76813.
    PALMER et al. v. MITCHELL COUNTY FEDERAL SAVINGS & LOAN ASSOCIATION.
    (377 SE2d 4)
   Banke, Presiding Judge.

The appellants sued the appellee savings and loan association to recover $24,031.07 in insurance proceeds which the appellee had received from a casualty insurer. These proceeds had been paid in accordance with the terms of a policy of hazard insurance the appellants had purchased covering certain real property which was subject to a security deed held by the appellee. Prior to receiving the insurance benefits, the appellee had acquired ownership of the property through the exercise of the power of sale provisions contained in the security deed. This appeal is from an order granting the appellee’s motion for summary judgment and denying the appellants’ motion with respect to the relief sought in the complaint.

As required by the terms of the security deed, the appellants had designated the appellee as primary loss-payee under the insurance policy, by virtue of its status as secured lender. The security deed specified that in the event the appellee acquired the property by foreclosure, it would also acquire “all right, title and interest of borrower in and to any insurance policies and in and to the proceeds thereof resulting from damage to the property prior to the sale or acquisition ... to the extent of the sums secured by this deed immediately prior to such sale or acquisition.” Also, the insurance contract itself contained what is known as a “New York standard” or “union” mortgage clause, providing, in pertinent part as follows: “Loss, if any, under this policy, shall be payable to the mortgagee . . . , and this insurance as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated ... by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property. . . .”

In August of Í985, during the term of the policy, the property was damaged by fire. In September of 1986, a foreclosure sale was conducted at which the appellee acquired ownership of the property by bidding in the amount of the appellants’ remaining indebtedness, which was at that time $46,022.46. Several months later, the casualty insurer paid the appellee the $24,031.07 which is the subject of the present action. The appellee ultimately resold the property for $59,252.16, but only after expending $39,044.55 on repairs and improvements. Thus, the total amount expended by the appellee to acquire the property and prepare it for resale exceeded the sum of the sale price and the insurance proceeds by approximately $1,784. The appellants nevertheless contend that they, rather than the appellee, were entitled to the insurance proceeds. Held:

It is well settled that a “New York standard” or “union” mortgage clause such as the one appearing in the insurance policy at issue in this case “ ‘create [s] a separate and distinct contract on the [secured lender’s] interest and . . . give[s] it an independent status.’ ” Cherokee Ins. Co. v. First Nat. Bank of Dalton, 181 Ga. App. 146, 147 (351 SE2d 473) (1986). See also Ins. Co. of North America v. Gulf Oil Corp., 106 Ga. App. 382 (1) (127 SE2d 43) (1962); 5A Appleman Ins. Law & Practice § 3403, p. 302 (1970); 5 Couch on Ins., §§ 29:76-29:78 (2d Rev., 1984); 8 Couch on Ins., § 37A:743 (2d Rev., 1985). However, it is also well settled that the secured lender’s interest in the property exists only to the extent of the indebtedness secured thereby and that he is consequently under an obligation to account to the borrower for any surplus received upon foreclosure. See Pindar, Ga. Real Est. Law, Vol. 2 § 21-88, p. 372 (3rd ed.), and cases cited therein.

A majority of those jurisdictions which have addressed the issue have held “that if subsequent to the [casualty] the mortgagee has had its debt satisfied by purchase at foreclosure either by the mortgagee or a stranger, even by its bidding in of the outstanding debt, the mortgagee’s rights under the [casualty insurance] policy are terminated.” Whitestone Savings &c. Assn. v. Allstate Ins. Co., 28 NY2d 332 (270 NE2d 694, 696 (2)) (1971). This rule is premised on the principle that the secured lender’s acquisition of the property by bidding in the amount of the remaining indebtedness at the foreclosure sale constitutes a complete satisfaction of the debt, thereby extinguishing its interest in the insurance proceeds. In Calvert Fire Ins. Co. v. Environs Dev. Co., 601 F2d 851 (5th Cir. 1979), the United States Court of Appeals for the Fifth Circuit ruled that this rule also obtains under Georgia law. Accord Mid-State Homes Inv. Corp. v. Wiggins, 217 Ga. 372 (3) (122 SE2d 106) (1961) (foreclosure not permitted where insurance proceeds received by mortgagee were sufficient to satisfy indebtedness on property). Compare Fed. Nat. Mtg. Assn. v. Hanover Ins. Co., 243 Ga. 609 (255 SE2d 685) (1979), and Nat. Security &c. Co. v. Eureka Fed. Savings &c. Assn, 188 Ga. App. 693 (373 SE2d 811) (1988) (both holding mortgagee entitled to insurance proceeds where foreclosure occurred prior to fire).

In the present case, the appellee lender contends that, notwithstanding the general principles of insurance law which might otherwise apply, it acquired an absolute contractual right to the insurance ■ proceeds as the result of the express statement in the security deed that its interest in such proceeds would survive foreclosure “to the extent of the sum secured by this deed immediately prior to such sale or acquisition.” We note that the “New York standard” or “union” insurance clause contained in the insurance policy similarly purported to give the appellee an absolute right to the insurance proceeds irrespective of whether the indebtedness on which its insurable interest was based had already been satisfied, yet that clause was unenforceable to the extent that it conflicted with the policy of the law limiting the secured lender’s interest in the insurance proceeds to the balance owed on the indebtedness. See Calvert Fire Ins. Co. v. Environs Dev. Co., supra. Thus, it is at best questionable whether a similar provision appearing in the security deed would be enforceable to the extent that it conflicted with this policy of the law. However, regardless of whether, in theory, the security deed at issue in this case could be enforced in such a manner as to afford the appellee a windfall over and above the full satisfaction of the appellants’ loan indebtedness, we hold that the trial court was correct in ruling that the appellants were not entitled to any recovery, for the reason that the appellants have failed to advance any theory under which the appellee (as opposed to the insurer) could be held liable to them for the benefits due under the policy. Compare Calvert Fire Ins. Co. v. Environs Dev. Co., supra, which was a declaratory judgment action filed by the insurer.

While it is true that an action for money had and received will lie against a defendant to recover funds received by him from a third person which ought in equity and good conscience to have, been paid to the plaintiff, the plaintiff’s right of recovery in such an action is predicated on his ability to show that the defendant would be unjustly enriched if allowed to retain the money. See generally Bob Parrott, Inc. v. First Palmetto Bank, 133 Ga. App. 447 (4) (211 SE2d 401) (1974). The appellee in this case has conclusively negated any allegation of unjust enrichment by presenting uncontroverted evidence that it suffered a net loss on its acquisition and resale of the property, even after application of both the insurance proceeds and the full amount of its foreclosure bid. Under such circumstances, we ' are aware of no basis üpon which the appellants might be entitled to recover those proceeds in an action against the appellee; and we consequently hold that the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

Birdsong, C. J., concurs and Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I cannot concur in that portion of the opinion related to the theoretical viability of an unjust enrichment claim.

As shown by the complaint as amended, the theory of the Palmers’ suit is that they are entitled to the insurance proceeds which the mortgagee scheduled in the policy received from the insurance company from which the Palmers purchased the policy.

The policy includes the New York standard Mortgage Clause which is quoted in pertinent part in the majority opinion. Certain provisos follow, such as that the premium must be kept up, notice of hazard changes must be given, and the. insurer has the right of subrogation to claims of the mortgagee against the mortgagor or owner to the extent of payment to the mortgagee.

The mortgagee’s interest must be determined as of the date of the loss, August 4, 1985. Pacific Ins. Co. v. R. L. Kimsey Cotton Co., 114 Ga. App. 411, 416 (3) (151 SE2d 541) (1966). At that time, the mortgagee was entitled to the proceeds ultimately paid because the value of the lender’s security had been diminished due to fire, a covered peril.

This entitlement was not waived or forfeited by later foreclosing on the security (the entire property, not just the buildings) when the borrowers defaulted in payments on the debt. The deed to secure debt, containing the provision quoted in the majority opinion, constituted a contract between the parties to this case and governs the entitlements of each.

Thus, according to their agreement, the passage of the insurance proceeds was already in contemplation of the parties, at foreclosure, as the fire had already occurred. That provision was part of the security required by the lender for its loan. Calvert Fire Ins. Co. v. Environs Dev. Co., 601 F2d 851, 855 (5th Cir. 1979), alludes to this when it says that “[lender’s] status as loss-payee gives it no less a separate contractual remedy than would an additional security deed on other property.”

By the plaintiffs’ own hand, they agreed that the lender’s right to the insurance proceeds would remain after foreclosure, at least in the amount of the debt existing before foreclosure. That amount being $46,022.46, and the insurance proceeds being $24,031.07, plaintiffs’ claim fails as a matter of law.

Although the foreclosure extinguished the debt for which the property in its undamaged state was security in the first place, paying it off with the loan association’s funds, the acquisition of the property in its damaged state carried to the lender as purchaser the right to the insurance proceeds because of the provision in the security deed. Acquisition by the lender did not extinguish its right to the insurance proceeds but rather preserved it. This was foreclosure by sale and not strict foreclosure. That is, transfer of the property itself did not extinguish the debt, because the property was paid for by the purchaser. The damaged condition of the property diminished its value and had no effect on or relationship to the amount of the debt, which stayed the same, and that is precisely what the lender sought to protect itself against by the provision in the security deed.

Decided October 25, 1988 —

Rehearing denied December 15, 1988

Frank C. Vann, for appellants.

Kirbo & Bridges, Bruce W. Kirbo, Randall E. Chew, for appellee.

Although it is not relevant to its right to the insurance proceeds, the loss payee demonstrated that this contractual arrangement did not result in unjust enrichment or “double payment.” It showed that it had to expend not only the insurance proceeds but more to sell the property in an effort to recoup the funds it had paid out to extinguish the loan debt, resulting in a net loss. So as it turned out, the amount of the debt, which was the price paid for the property at foreclosure, was higher than the restored value of the property. This, of course, would not occur if someone other than the lender acquired the property at the foreclosure, and that is why the security deed limits the lender/forecloser’s right to pre-foreclosure insurance proceeds to instances in which the lender is the purchaser.

The policy, which is a contract between plaintiffs here and their insurance company, and the security deed, which is a contract between plaintiffs and their lender, are in tandem. In both contracts, the plaintiffs agreed that the lender would be entitled to the insurance proceeds even if it acquired the property by purchase at foreclosure after the peril occurred.

       Not a true mortgagee, because the deed to secure debt expressly stated the conveyance was a deed passing title and not a mortgage, but the insurance policy refers to the lender as mortgagee or trustee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    77231.
    HOLTZCLAW v. CITY OF DALTON.
    (377 SE2d 196)
   McMurray, Presiding Judge.

Plaintiff Holtzclaw filed this declaratory judgment action against defendant City of Dalton. The controversy between these parties centers on guaranty agreements executed by plaintiff for the purpose of inducing defendant to furnish utility services to Value Finishing, Inc., a carpet finishing business of which plaintiff is the sole shareholder. The most recent of the guaranty agreements, dated October 13, 1986, begins with the following two paragraphs: “IN CONSIDERATION of the sum of One ($1.00) Dollar and other valuable considerations, receipt and sufficiency whereof is acknowledged, and for the purpose of inducing THE CITY OF DALTON, acting by and through its Board of Water, Light and Sinking Fund Commissioners, (herein termed City), to furnish utility services and extend credit therefor to Value Finishing (herein termed Principal), at premises known as 3540 Corporate Dr, Terrell Holtzclaw, (herein termed Undersigned), and each of them, jointly and severally, bind themselves and agree to pay to City, its successors and assigns, any indebtedness or obligations incurred by Principal for the furnishing of such services; and, if any such indebtedness or obligations are not paid, when due, by the Principal, the Undersigned will immediately pay the same upon demand.

“The obligations covered by this agreement include all obligations express or implied and whether or not in writing of the Principal to pay money to the City for utility services furnished, whether now existing or hereafter coming into existence, and any extensions, in whole or in part, of any of the same, together with all damages, losses, costs, interests, charges and expenses of every kind, nature and description suffered or incurred by the City arising in any manner out of or in any way connected with, said indebtedness of the Principal to the City.”

A second guaranty dated November 11, 1985, used the same preprinted form and was identical to that set forth above, except that the premises of Value Finishing, Inc., was set forth as “2018 S. Hamilton St., Section H, Dalton, Ga.”

Defendant gave notice to plaintiff that the account of Value Finishing, Inc., was in arrears and demanded payment pursuant to the guarantee. Plaintiff filed this action alleging that he was not indebted to defendant under the guaranty agreements.

Defendant, relying upon the language contained in the second paragraph of the contracts, contends that plaintiff is liable for all obligations of Value Finishing, Inc., to pay money to defendant for utility services. Plaintiff contends that the first and second paragraphs of the contract are in conflict. Plaintiff reads the first paragraph as providing a guaranty of payment for utilities provided at the named premises.

The superior court found that “[t]he first paragraph deals with the consideration provided for the contract, while the second paragraph defines the extent of the obligation undertaken by the Plaintiff.” Based on its holding that plaintiff had guaranteed any and all utility obligations of Value Finishing, Inc., the superior court granted defendant’s motion for summary judgment. Plaintiff appeals, enumerating as error the superior court’s construction of the guaranty agreement. Held:

Decided December 2, 1988 —

Rehearing denied December 16, 1988

As we find error in the superior court’s construction of the guaranty agreement, we must reverse. The first paragraph of the contract clearly sets forth the consideration provided by plaintiff, a promise “to pay to [defendant] . . . any indebtedness or obligations incurred by [Value Finishing, Inc.] for the furnishing of such services . . .” (Emphasis supplied.) The word “such” modifying the word “services” can only be viewed as a reference to the services induced by the contract, that is, the utility services provided to the premises stated in the contract. Thus, the first paragraph of the guaranty agreement obligates plaintiff only in regard to utilities provided at the listed premises.

A limited or specific provision of a contract will prevail over one that is more broadly inclusive. Hearn v. Old Dominion Freight Lines, 172 Ga. App. 658 (1), 659 (324 SE2d 517). “Further, we note that the law in Georgia remains that the first of two contradictory contract clauses will prevail.” Joseph Camacho Assoc. v. Millard, 169 Ga. App. 937, 938 (1a) (315 SE2d 478). Thus, the contract language making plaintiff liable for the utilities at the listed premises prevails over language providing that plaintiff must pay any and all obligations of Value Finishing, Inc., to defendant for utility services.

We note that our reading of the contract does not render meaningless the second paragraph or any portion of the remainder of the guaranty agreements. The second paragraph must be read as relating to time, rather than location.

The evidence shows that payment for utilities was current at the premises listed in the guaranty agreements of October 13, 1986, and November 11, 1985. There was an outstanding balance of charges for utility services furnished by defendant to Value Finishing, Inc., at 1009 Ellis Street. Also, there was a third guaranty agreement dated October 10, 1979 (using a different form than the later agreements), whereby plaintiff agreed to be responsible for gas furnished to heat the building at the Ellis Street location. However, there was no evidence that any of Value Finishing, Inc.’s outstanding balance at Ellis Street consisted of gas for heating the building. It follows that genuine issues of material fact remain as to the existence and amount of any indebtedness of plaintiff to defendant. The superior court erred in granting a summary judgment in favor of defendant and against plaintiff.

Judgment reversed.

Pope and Sognier, JJ., concur.

Mitchell, Coppedge, Wester, Bisson & Miller, James H. Bisson III, for appellant.

Carlton C. McCamy, R. Kevin Silvey, for appellee.


text:
    77322, 77323.
    FEIFER et al. v. RELIANCE KITCHENS, USA, INC.; and vice versa.
    (377 SE2d 28)
   McMurray, Presiding Judge.

Reliance Kitchens, USA, Inc. (“plaintiff”) brought an action against Mr. and Mrs. Bernard Feifer (“defendants”) to recover damages stemming from defendants’ alleged refusal to pay for materials and services provided by plaintiff at defendants’ home. Plaintiff also sought attorney fees, alleging that defendants are “being stubbornly litigious” and that defendants “dealt with the Plaintiff in bad faith. . . .” Defendants denied the material allegations of the complaint and counterclaimed, alleging that plaintiff breached a home improvements contract entered into between the parties. Defendants sought breach of contract damages, exemplary damages, and attorney fees, alleging that plaintiff tortiously breached the construction contract by performing the contract in a deficient manner.

After a period of discovery, plaintiff amended its complaint and alleged that defendants fraudulently induced it to perform services and install materials at defendants’ home by executing a home improvements contract which defendants never intended to honor. Over two and a half years later, defendants amended their counterclaim and alleged that “[representatives of the Plaintiff have made numerous successive hang-up calls to the Defendants’ home between the hours of 12:00 o’clock midnight and 5:00 o’clock, a.m.” Defendants sought “punitive and exemplary” damages for this “private nuisance.”

The case was tried before a jury and the evidence authorized a finding that defendants failed to pay plaintiff for materials and services provided by plaintiff at defendants’ home. The trial court did not allow plaintiff to present evidence on its fraud claim and precluded defendants from presenting evidence on their amended counterclaim for the “hang-up” telephone calls. Neither plaintiff nor defendants presented evidence as to attorney fees; however, the parties stipulated after the close of evidence that attorney fees were “approximately $29,000 for each side.” The jury returned a verdict in favor of plaintiff in the amount of $9,949.80 on its breach of contract claim and against defendants on their counterclaim. Plaintiff was also awarded $29,000 in attorney fees. Defendants filed an appeal after the denial of their motion for new trial in Court of Appeals Case No. 77322. Plaintiff cross-appealed in Court of Appeals Case No. 77323. Held:

Case No. 77322

1. Plaintiff’s motion to dismiss defendants’ appeal is denied.

2. In their first enumeration of error, defendants contend that “[a] stipulation regarding the amount of attorneys’ fees was not properly admitted into evidence. ...” This argument is without merit. It was unnecessary for the stipulation to be entered into evidence at trial.

“A stipulation is ‘any agreement made by attorneys respecting business before the court.’ 24 EGL 305, Pleading & Practice, § 136 (1974). It is binding on the parties and may not be disproved. Goolsby v. Allstate Ins. Co., 130 Ga. App. 881 (1) (204 SE2d 789) (1974). ‘(P)arties to stipulations and agreements entered into in the course of judicial proceedings will not be permitted to take positions inconsistent therewith in the absence of fraud, duress or mistake.’ Thompson v. Thompson, 237 Ga. 509 (228 SE2d 886) (1976).” McDaniel v. Oliver, 172 Ga. App. 109, 110 (322 SE2d 1).

In the case sub judice, the record clearly shows that defendants’ attorney and plaintiff’s attorney stipulated that attorney fees were “approximately $29,000 for each side.” This “stipulation of fact which had not been withdrawn constituted a solemn admission in judicio and is conclusive so as to preclude either party from introducing evidence to disprove or contradict. Code § 38-114 [now OCGA § 24-4-24]; U. S. Fidel. &c. Co. v. Clarke, 187 Ga. 774 (3) (2 SE2d 608).” Holland-American Line v. United Co-operatives, 124 Ga. App. 375 (1) (183 SE2d 620).

3. Next, defendants argue that the trial court erred in failing to instruct the jury as to their counterclaim for tortious breach of contract.

During the charge conference, the trial court ruled out defendants’ “tort claim for [plaintiff’s alleged] failure of a duty to properly design and install [the] work.” “However, there were no requests for such a charge, and there were no objections to the trial judge’s failure to so charge. Under these circumstances, we find no reversible error. See Code Ann. § 70-207 [now OCGA § 5-5-24]; Pearlman v. Pearlman, 238 Ga. 259 (2) (232 SE2d 542) (1977) and cits.” Herring v. McLemore, 248 Ga. 808, 809 (3) (286 SE2d 425).

4. Lastly, defendants contend the trial court erred in sustaining plaintiff’s objection to testimony relevant to their amended counterclaim regarding the “hang-up” telephone calls.

Defendants’ amended counterclaim was for an alleged tort committed after defendants’ original counterclaim was served upon plaintiff. “A claim which either matured or was acquired by the pleader after serving his pleading máy, with the permission of the court, be presented as a counterclaim by supplemental pleading.” OCGA § 9-11-13 (e). “Permission of the court is a necessary prerequisite to the supplemental pleading of a counterclaim under Code Ann. § 81A-113 (e) [now OCGA § 9-11-13 (e)] and the decision to grant or deny the motion is totally within the trial court’s discretion.” Jenkins v. Martin, 142 Ga. App. 573, 575 (236 SE2d 542). In the case sub judice, defendants failed to obtain leave to file their “after-acquired” counterclaim. Consequently, the claim was not properly before the trial court and any ruling excluding evidence relating thereto was harmless. See 6 Wright & Miller, Fed. Practice & Procedure, § 1428.

5. Plaintiff’s motion for frivolous appeal pursuant to OCGA § 5-6-6 is denied. See Harrell v. Thompson, 182 Ga. App. 470, 473 (6) (356 SE2d 69).

Case No. 77323

6. Plaintiff contends the trial court erred in refusing to allow it to present evidence relevant to its fraud claim.

“The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issues so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand, the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accordance with the judgment on the special verdict.” OCGA § 9-11-49 (a).

In the case sub judice, the trial court submitted a special verdict form to the jury requiring specific written findings upon various issues of fact. The special verdict form did not include a determination as to plaintiff’s fraud claim and plaintiff raised no objection to the special verdict form. Consequently, any issue relating to plaintiff’s fraud claim was deemed waived. See Frostgate Warehouses v. Cole, 244 Ga. 782 (262 SE2d 98). It therefore follows that any error relating to the omission of evidence relevant to plaintiff’s fraud claim was harmless.

Decided December 2, 1988 —

Rehearing denied December 16, 1988.

Mark J. Radish, James J. McGinnis, for appellants.

Clifford J. Steele, for appellee.

7. Other issues raised in plaintiff’s cross-appeal are rendered moot by our holding in Division 6 of this opinion.

Judgments affirmed.

Pope and Benham, JJ., concur.


author: Banke, Presiding Judge. Birdsong, Chief Judge, Beasley, Judge,

text:
    76405.
    HOLSEY v. HIND.
    (377 SE2d 200)
   Banke, Presiding Judge.

Appellant Holsey filed an action for damages against appellee Hind, the District Attorney of Dougherty County, Georgia, alleging that Hind’s office had caused him to be held in jail for 40 days without cause by failing to notify him or his attorney that certain criminal charges against him had been dead-docketed. Holsey appeals from the grant of Hind’s motion for summary judgment.

The appellant was arrested on May 23, 1985, based on warrants charging him with arson and murder. The following day, an assistant district attorney in the appellee’s office presented a written motion to a Dougherty County superior court judge asking that the charges be placed on the “dead docket” (see generally OCGA § 15-6-61 (4) (G)), for the stated reason that there was “insufficient evidence to convict at this time.” The trial judge granted the motion, but neither the jail officials, the appellant, nor his criminal defense attorney became aware of this development until July 3, 1985, on which date the appellant’s criminal defense counsel learned that the charges were no longer pending and immediately obtained the appellant’s release from custody.

The appellant contends that the district attorney’s office was under a statutory duty pursuant to OCGA § 17-1-1 to serve him or his attorney with a copy of the motion and order dead-docketing the charges but that it was the appellee’s custom and practice not to require his assistants to comply with this statutory duty. The appellee denies these allegations but asserts that even if they are true, he is insulated from liability for any resulting injury to the appellant pursuant to the doctrine of prosecutorial immunity. Held:

1. “ ‘The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties.’ Im bler v. Pachtman, 424 U. S. 409, 422 (96 SC 984, 47 LE2d 128) (1976). Prosecutors, like judges, should be free to make decisions properly within the purview of their official duties without being influenced by the shadow of liability. Therefore, a district attorney is protected by the same immunity in civil cases that is applicable to judges, provided that his acts are within the scope of his jurisdiction. Smith v. Hancock, 150 Ga. App. 80, 81 (256 SE2d 627) (1979). (Emphasis supplied.)

Not all actions undertaken by the district attorney in carrying out the functions of his office are considered “within the scope of his jurisdiction” as the prosecuting officer of the court. It appears to be well-settled that “ [although a prosecutor enjoys absolute immunity when engaging in quasi-judicial functions, he has only a qualified immunity when carrying out administrative or investigative functions.” Kadivar v. Stone, 804 F2d 635, 637 (11th Cir. 1986), citing Marrero v. City of Hialeah, 625 F2d 499, 504-05 (5th Cir. 1980). Thus, our initial concern in this case is within the threshold question of whether the alleged breach of duty involved a “quasi-judicial” or merely an administrative function of the district attorney’s office.

This issue cannot be resolved merely by inquiry into whether the alleged breach of duty involved an exercise of judgment or discretion on the part of the appellee or his assistants. No one, for example, would seriously contend that a decision by a prosecutor on such a matter as hiring or firing a secretary would be anything other than administrative, although such a decision would obviously involve an exercise of judgment or discretion connected with the duties of his office. The determining factor instead appears to be whether the act or omission is “ ‘intimately associated with the judicial phase of the criminal process.’ ” Barbera v. Smith, 836 F2d 96, 99 (2d Cir. 1987), citing Imbler v. Pachtman, supra, 424 U. S. at 430-431.

Pursuant to this rationale, we conclude that although the failure to serve the appellant or his counsel with a copy of the motion and order resulting in the dead-docketing of the charges may not have involved the exercise of any prosecutorial discretion or judgment, such conduct, being intimately associated with the judicial phase of the criminal process, was nevertheless within the scope of the appellee’s absolute prosecutorial immunity. Accord Atkins v. Lanning, 556 F2d 485 (10th Cir. 1977) (holding district attorney immune from liability for mistake in causing wrong person to be named in arrest warrant). We accordingly hold that the trial court did not err in granting the appellee’s motion for summary judgment.

2. The appellant’s remaining enumeration of error, involving the trial court’s grant of a protective order preventing discovery in the case, is rendered moot by the foregoing.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Sognier, Pope and Benham, JJ., concur. Birdsong, C. J., Carley and Beasley, JJ., dissent.

Birdsong, Chief Judge,

dissenting.

Appellant Holsey sat in jail for 40 days because the appellee, for reasons known to him, failed to authorize the appellant’s release.

The majority of this court thinks he has no redress for this under our system of American jurisprudence.

The majority decision states the district attorney had no duty to prevent this unauthorized imprisonment, notwithstanding the mandatory provisions of OCGA § 15-18-6 (10) making it his special duty to perform the notification duties required by law at § 17-1-1. The majority in its decision states the appellee is immune from any action for his having allowed Holsey to remain in jail for 40 days as this clearly was “intimately associated with the judicial phase of the criminal process. [Cit.]” This finding ignores one of the law’s basic precepts, “ignorantia eorum quae quis scire tenetur non excusat. Ignorance of those things which one is bound to know excuses not.” Black’s Law Dictionary.

How can this be? How can it be said that to imprison a man for 40 days without cause in direct violation of a statutory mandate which would have prevented this incarceration, is an act “intimately associated with the judicial process?” If the criminal prosecution is ended, then there is no “judicial process” pending. For 40 days there was no judicial process of prosecution against Mr. Holsey. There is no acceptable excuse for this injustice, and there is no law or rule of law which gives a prosecutor the insidious power to do this sort of thing by shielding him with immunity.

I have no quarrel whatever with the principles of sovereign, and particularly, judicial immunity, for acts of judicial discretion and acts “intimately associated with the judicial process”; but this was not one of them.

“It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that ‘where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority.’ These discretionary acts ‘lie midway between judicial and ministerial ones. The name of the public officer or officers is immaterial, and the question depends on the character of the act. If the act done for which recovery is sought is judicial or quasi-judicial in its nature, the officer acting is exempt from liability.’ ” Hennessy v. Webb, 245 Ga. 329, 330 (264 SE2d 878); quoting Partain v. Maddox, 131 Ga. App. 778 (206 SE2d 618); and see Nelson v. Spalding County, 249 Ga. 334 (290 SE2d 915).

This rule serves a good public policy. While the Georgia courts have not dealt much with the peculiar nature of prosecutorial immunity, the federal courts, particularly in the realm of suits filed under 42 USC § 1983, have done so. The principles and policies underlying each are the same; but in matters of indicted or prosecutorial nature, the freedom to act with independent discretion is the refining element.

In Imbler v. Pachtman, 424 U. S. 409 (96 SC 984, 47 LE2d 128), the United States Supreme Court established that among the “reasons for absolute immunity” is the overriding public policy necessity that the prosecutor, like judges, be completely free to perform his duties without the concerns of harassment and influence. “ ‘The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? . . . The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded and we would have moved away from the desired objective of stricter and fairer law enforcement.’ [Cit.]” Id., pp. 423-424.

The policy objects announced in Imbler are not only good, but are essential to the integrity of police power in a free society, so much so that it is a part of the State Constitution that “District Attorneys shall enjoy immunity from private suit for actions arising from the performance of their duties.” Constitution of the State of Georgia, Art. VI, Sec. VIII, Par. I. (Emphasis supplied.) With this provision I firmly agree. But the district attorney is given no constitutional or other protection from the non-performance of his statutory, mandatory, non-discretionary acts which are not judicial or quasi-judicial in character. Imbler held only “that in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages. . . .” (Emphasis supplied.) Id., p. 431.

The appellee argues that the decision to dismiss a case is not a ministerial function but is a judiciál act or, at least, a quasi-judicial act entitled to qualified, good-faith immunity. But in this case the decision to dismiss had already been made and no more discretion remained. Only the ministerial act of releasing the prisoner remained. The inquiry underlying the issue of immunity depends upon the “functional nature of the activities rather than [the prosecutor’s] status.” Imbler, supra, p. 430; Marrero v. City of Hialeah, 625 F2d 499, 504 (5th Cir. 1980). Thus, the mere status of being district attorney gives no immunity for non-performance of his statutory mandatory duties, notwithstanding anything given to him by the Georgia Constitution for the “performance of his duties.” The status of the officer is immaterial; “the question depends on the character of the act.” Hennessy, supra at 330-331. Hence, the critical issue is whether the act was judicial or quasi-judicial (discretionary) or ministerial (not discretionary.)

As Marrero, supra, makes clear, it is only the overriding public policy which necessitates and allows prosecutorial immunity in the first place, and “although the Imbler [absolute immunity] umbrella may be necessary to shield a prosecutor from a rain of private suits challenging the performance of his quasi-judicial duties, there simply is no reason to construct a canopy to cover a prosecutor’s activities which lie outside his role as advocate.” (Emphasis supplied.) Id., p. 510.

In all due respect to the majority’s opinion, it cannot possibly be said that the unlawful imprisonment of Holsey, by reason of the appellee’s failure to perform the statutory, ministerial, mandatory non-discretionary act of notifying him that he was no longer charged with any crime, was an act “intimately associated with the judicial phase of the criminal process.” There was no more “judicial phase.” There was no more “criminal process.” The discretionary, judicial or quasi-judicial act of deciding whether to drop criminal charges had already been done.

There was no more discretion to exercise in the matter, as there was in the cases cited by the majority. The law demanded Holsey’s release from jail. The public policy that provides absolute or qualified immunity for judicial and quasi-judicial acts is the good public policy of ensuring the independence of the jurisprudential process, and the integrity of police powers in our society. But there is no conceivable good public policy, lurking in the guise of such immunity, that could give the prosecution the power to imprison a citizen when there is no criminal action pending against him.

The only result of contrary thinking is the destruction of the integrity of the police power in this State, and in the jurisprudential system. No good can come of it. It is wrong. To deny immunity for unlawful imprisonment resulting from failure to perform a statutory, non-discretionary act, does not make the slightest scratch on the face of the good policy which allows immunity for a discretionary judicial or quasi-judicial prosecutorial act. Particularly in this case, denying immunity does not threaten that good policy. It strengthens it by leaving its integrity undiluted by false notions that a public officer’s mere status sets him above the law. The majority conclusion posits an interesting question. If a district attorney “forgets” to authorize the release of a prisoner, where charges have been dismissed or not processed for a period of three or four or five years, would we reach the same result? If not, why not? The legal principles remain the same.

With full respect for the opinion of the majority, I say the statutory, mandatory non-discretionary requirement to notify Holsey that there was no criminal prosecution against him, is entitled to no prosecutorial, governmental, judicial, or quasi-judicial immunity whatsoever; and further, to say that the act of leaving the appellant in jail for 40 days is entitled to some immunity, places an ineradicable blotch upon the integrity of the entire public policy underlying government and judicial immunity, by placing the judicial officer or prosecutor above the law, by reason of his status alone.

I therefore respectfully, but strongly, dissent.

Beasley, Judge,

dissenting.

I respectfully join the dissent in the conclusions that the failure to perform a statutory administrative duty is involved, that the district attorney cannot escape responsibility by delegation of performance to a subordinate, and in the conclusion that the summary judgment was error. I cannot concur in the application of federal immunity doctrine or with the conclusion that the inactions complained of are outside the prosecution of a case.

First we must determine the nature of the tort claimed and its requisites, or we apply the wrong immunity doctrine. The defendant did not contend that Georgia law does not encompass a cause of action covering plaintiff’s complaint, so that issue is not before us and we must assume for the purpose of this decision that it does.

Plaintiff alleges that it is the custom and practice of defendant not to serve dead docket motions or the orders entered thereon on criminal defendants or their attorneys, as required by OCGA § 17-1-1 (a), that the failure to do so in plaintiff’s case resulted in his unauthorized continued incarceration for 40 days, and that he was damaged in the amount of $2,000 per day for loss of liberty and emotional distress.

In this case, then, the tort alleged is the violation of a public duty because it is a duty imposed by a valid statutory enactment of the legislature. OCGA § 51-1-1; Sutker v. Penn. Ins. Co., 115 Ga. App. 648, 651 (155 SE2d 694) (1967). The requirements of OCGA § 17-1-1 were added to the statutes in the Code of 1981. Prior to that, this provision apparently did not exist and the duties prescribed therein were not mandated by statute. The code provision defining tort, OCGA § 51-1-1, recognizes that a tort may be the violation of a public duty “if, as a result of the violation, some special damage accrues to the individual.”

The essence of plaintiff’s complaint is that he lost the value of his liberty and suffered compensable emotional distress because the district attorney did not serve his attorney with the dead docket motion or order. He does not claim that the inaction was reckless, or willful and wanton; he does not expressly claim that it was negligent or deliberate. He claims merely that it was a customary practice and occurred in his case. Defendant, in moving for summary judgment, offered no proof to contravene these two factual allegations.

The code provides that “When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” OCGA § 51-1-6. Violation of a statute is per se a tort if “ ‘the injured person falls within the class of persons it was intended to protect and . . . the harm complained of was the harm it was intended to guard against. [Cits.]’ ” Central Anesthesia Assoc. v. Worthy, 173 Ga. App. 150, 153 (325 SE2d 819) (1984) [affirmed 254 Ga. 728 (333 SE2d 829) (1985)].

Thus, plaintiff asserts a claim under state law, and it is clear that he does not assert a cause of action under 42 USC § 1983. That makes the federal cases cited by the majority, and other cases grappling with the question of prosecutorial immunity from civil rights claims under that provision, non-controlling. They are dealing with an immunity granted by federal case law, and we are not. Instead, we are dealing with a state cause of action, assuming there is one, and the degree of immunity, if any, which the state as sovereign chooses to grant to the state’s prosecutor. Federal cases construing and applying federal immunity may be instructive and persuasive, but they do not govern the issues here.

The distinctions between federally-provided immunity in federal suits and immunities recognized by Georgia in state suits are discussed in Thompson v. Spikes, 663 FSupp. 627, 640 (2) (S.D. Ga. 1987). The two doctrines take different approaches and contain different categories. Thus, the Imbler v. Pachtman, 424 U. S. 409 (96 SC 984, 47 LE2d 128) (1976), immunity analysis is inapplicable except to the extent that it may have been adopted in Georgia’s governmental immunity law. Imbler is a case brought under 42 USC § 1983, as are later cases involving good faith immunity such as Davis v. Scherer, 468 U. S. 183 (104 SC 3012, 82 LE2d 139) (1984), reh. den. 468 U. S. 1226. As to the qualified immunity in federal suits, see also Harlow v. Fitzgerald, 457 U. S. 800, 817-818 (102 SC 2727, 73 LE2d 396) (1982).

The absolute versus qualified immunity doctrine which is part of federal law was recently applied in Marx v. Gumbinner, No. 87-5449, 11th Cir., September 20, 1988. It is in that context that the dichotomy between prosecutorial and non-prosecutorial functions is made. Such a division, which relates to whether the complained-of action occurred “in connection with either the initiation of a prosecution or with activities undertaken in following up a prosecution,” Marrero v. City of Hialeah, 625 F2d 499 (5th Cir. 1980), cert. den., 450 U. S. 913 (101 SC 1353, 67 LE2d 337) (1981), is unnecessary under the Georgia doctrine of immunity. If it was a duty outside a prosecution, it would still be within the scope of his official duties. See Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980).

Whether the failure to act occurred in the course of a case prosecution or not is not determinative of Georgia immunity. If it were, there is no doubt that the violations complained of here were in the course of prosecution. Service comes as párt of the procedure of a criminal case, as the majority points out. The prosecution has not “ended” so as to fall outside the judicial process and into the sphere of prosecutorial activities which constitute non-judicial functions, such as campaigning for office or speaking to private or public groups. OCGA § 17-1-1 by its nature and scope encompasses actions to be performed, and the steps to be taken, in connection with criminal cases. It is a provision within the code title specifying the procedure to be followed in criminal cases.

The duties of the district attorney with respect to a case are not concluded when the “dead docket” order is entered. They continue, at least for the moment, until he has served notice. That is the whole point of plaintiff’s lawsuit. His quasi-judicial function is not past the final point in this regard. For one thing, the case is not finally disposed of because the presiding judge can still call it for trial at his pleasure. OCGA § 15-6-61 (4) (G). But the law imposes a duty to perform a ministerial act within that prosecutorial function, for the district attorney is to make service as a “party” to the penal action. OCGA § 17-1-1. It is “the character of the act” which is determinative. Hennessey v. Webb, supra at 331.

We must only determine whether the State law grants an absolute immunity, for that was the basis of summary judgment. Of course, if it does, it nearly swallows up the cause of action entirely, for a damage suit brought for non-compliance of OCGA § 17-1-1 would always be against the public prosecutor except when brought against the defendant’s own attorney.

I agree that the State does not grant an absolute immunity to the prosecutor from the suit as alleged and in the current state of the record. In Smith v. Hancock, 150 Ga. App. 80 (256 SE2d 627) (1979), the Court recognized the existence of a quasi-judicial immunity for prosecutors, stemming from the need to protect the prosecutor’s decision-making process from the fear of civil liability. This need is considered greater than the need to provide redress for harmful error. Considering the rationale for the immunity, it would not apply to statutorily-mandated acts because there is no room for validly deciding not to comply. No discretion is allowed. No prosecutorial judgment enters in. Such acts are not “quasi-judicial.” The code says do it; the freedom to make an untrammeled determination has been removed by the law itself, i.e., the enactment of OCGA § 17-1-1. “[A] suit may be brought against a State officer or agent where he acts illegally and in an unauthorized manner.” Cannon v. Montgomery, 184 Ga. 588 (2) (192 SE 206) (1937).

While it is true that the district attorney has complete discretion on whether1 to seek dead docketing, and such a decision would be absolutely immune, the same is not true regarding service of the motion and any order entered thereon. The latter two, which require merely ministerial acts, are the focus of plaintiff’s complaint.

Although OCGA § 17-1-1 never once states who is to serve the motion and the order, it is obvious that as in other cases, the obligation to serve the motion would be the movant’s. But the motion would not secure defendant’s release. It is the judge who has control of whether or not a case shall be so treated. OCGA § 15-6-61 (4) (G) provides for the dead docket, “to which cases shall be transferred at the discretion of the presiding judge and which shall only be called at his pleasure.”

The judge’s order would thus constitute the authority of the jailer to release the defendant, and the court could compel obedience to that order. OCGA § 15-1-3 (3). Although a mandatory duty to notify the attorney of the order lies also with the judge, OCGA § 15-6-21 (c), the scheme laid out in OCGA § 17-1-1 must be construed to impose a duty of service of “every order not entered in open court” on the party procuring it. That would be the district attorney in this case. The party is the State, and it can act only through its representative. Thus there was a duty; causal connection is a separate element which plaintiff must prove. See Central Anesthesia Assoc., supra, 254 Ga. at 730.

There is no absolute immunity provided by Georgia for this ministerial act. As to Georgia’s doctrine and the dichotomy between discretionary and ministerial acts which controls the application of immunity, see Hennessey v. Webb, supra; Nelson v. Spalding County, 249 Ga. 334, 336 (2) (a) (290 SE2d 915) (1982); Gray v. Linahan, 157 Ga. App. 227, 228 (276 SE2d 894) (1981); Shuman v. Dyess, 175 Ga. App. 213, 215 (2) (333 SE2d 379) (1985).

I have found no case acknowledging the existence of a qualified or limited immunity which would apply to a prosecutor’s ministerial acts. Instead, assuming he failed to comply with the notice duty imposed by a law aimed at the orderly and due administration of criminal cases, then the reasons he did not serve the motion and the order may be relevant to a defense.

Decided December 5, 1988 —

Rehearing denied December 19, 1988

James N. Finkelstein, for appellant.

Michael J. Bowers, Attorney General, John C. Joneg, Daryl A. Robinson, Senior Assistant Attorneys General, for appellee.

In any event, the grant of summary judgment on the basis of absolute immunity was at best premature.


text:
    76448.
    SENASE v. THE STATE.
    (377 SE2d 921)
    Decided December 5, 1988 —
    Rehearing denied December 19, 1988

      Thomas C. Blaska, Jonathan J. Wade, Robert A. Meier IV, for appellant.

      Darrell E. Wilson, District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant appeals from his conviction for trafficking in cocaine. Held:

Initially, defendant asserted four enumerations of error, challenging the constitutionality of OCGA § 16-13-31. He later included a fifth enumeration of error, arguing that “[t]he trial court erred in convicting and sentencing [him] under OCGA § 16-13-31, as the statute requires actual possession, as opposed to constructive possession, to support a conviction for the offense of trafficking in cocaine.” However, defendant did not raise these issues in the trial court. Consequently, he “has forfeited the right to raise them on appeal. Arp v. State, 249 Ga. 403 (1) (291 SE2d 495) (1982).” Senase v. State, 258 Ga. 592 (372 SE2d 809). See Tolbert v. State, 180 Ga. App. 703, 704 (2, 3) (350 SE2d 51).

Judgment affirmed.

Pope and Benham, JJ., concur.


author:
McMurray, Presiding Judge. Carley, Judge,
      Benham, Judge,

text:
    76940.
    FLETCHER et al. v. FORD et al.
    (377 SE2d 206)
   McMurray, Presiding Judge.

Fran Ford and Walter Ford filed this medical malpractice action and alleged that their infant son died because of Dr. Fletcher’s negligent failure to advise them to take the child for emergency medical treatment. Dr. Fletcher denied liability and subsequently moved for summary judgment.

During the early evening of July 25, 1984, the Fords’ infant son began displaying signs of illness. The child’s body temperature was elevated, he was lethargic and the infant displayed signs of nausea. The Fords responded by administering cool baths and Tempra drops. However, the child’s condition worsened and “at approximately 8:00 o’clock p.m.” Mrs. Ford called the child’s pediatrician’s office. She was told by personnel at the doctor’s answering service that the office was closed, that Dr. Fletcher was on call and that he would return her call. About an hour elapsed, the child’s condition continued to deteriorate and Dr. Fletcher did not return Mrs. Ford’s call. “At approximately 9:10 p.m.,” Mrs. Ford again called her child’s doctor’s office and was told by personnel at the answering service “that Dr. Fletcher is just getting ready to pick up his calls and that he would call . . . shortly.” About “five minutes later,” an unidentified woman called the Ford home, stated that she was calling on behalf of Dr. Fletcher and advised the Fords to continue treating the child with cool baths and Tempra drops. The unidentified woman suggested that the child had a stomach virus and also recommended that the Fords administer “Gatorade.”

The next morning, Mrs. Ford brought her son to the pediatrician’s office for treatment. The doctor immediately recognized that the child was suffering from meningitis and rushed the infant to the hospital. Two days later the Fords’ son died.

From this and other information surrounding their child’s death, Jonathan D. Winner, “a physician duly licensed to practice medicine in the State of Georgia,” deposed that the Fords’ child would have probably survived if “appropriate antibiotic therapy ...” had been applied at the time the Fords received a response to their emergency telephone call. Dr. Winner further deposed that “the [unidentified] woman caller . . . failed to exercise good and adequate medical judgment and failed to meet the [appropriate] standard of care by not advising Mrs. Ford to have the child seen by a doctor as soon as possible.” Dr. Winner concluded that “whoever allowed [the unidentified woman] to return Mrs. Ford’s call also failed to meet the standard of care by permitting such a person to give medical advice concerning ill infants.”

In opposition, Dr. Fletcher testified that he never received a message from the Fords and that he was totally unaware of the child or the child’s illness until his return from a vacation which began the morning after the Fords received the call from the unidentified woman. Dr. Fletcher also testified that no one was authorized by him on that occasion to pick up messages or to call patients on his behalf. However, the night shift supervisor for the pediatrician’s answering service testified that she examined a message slip which reflected the Fords’ emergency telephone call and observed that the message slip “was stamped out and initialed as being given out. . .” shortly after the message was received. The night shift supervisor further testified that the Fords’ emergency message was dispatched to Dr. Fletcher along with “several other messages. . . .”

From this and other evidence, the trial court denied Dr. Fletcher’s motion for summary judgment. This interlocutory appeal followed. Held:

1. Dr. Fletcher contends that the statements made by the unknown woman to Mrs. Ford were inadmissible hearsay.

“ ‘As a fundamental rule, the definition of hearsay does not include out-of-court statements which are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made. Assuming that the proof is limited to merely showing that the statement was made and not as evidence of the truth of the fact asserted in the statement, the statement is admissible as original evidence and does not concern the hearsay rule.’ Green, Ga. Law of Evidence, (2d ed.), 369, § 218.” Walker v. State, 187 Ga. App. 631, 633 (1) (371 SE2d 199). In the case sub judice, Mrs. Ford was not testifying as to the validity of the substance of the unidentified woman’s statements, but as to her utterances and the time they were made. To this, Mrs. Ford is qualified to testify. See 5 Wig-more on Evidence 2, § 1361 (2) (Chadbourn rev. 1974).

2. “ ‘On motion for summary judgment the evidence is viewed in a light most favorable to the respondent, and the respondent is given the benefit of every doubt.’ Lorie v. Standard Oil Co., 175 Ga. App. 308 (333 SE2d 110). The movant has the burden to prove the nonexistence of any genuine issue of material fact (OCGA § 9-11-56), and in so determining, the court will treat the respondent’s paper with considerable indulgence. Butler v. Terminix Intl., 175 Ga. App. 816 (334 SE2d 865).” Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339). In the case sub judice, it is undisputed that Dr. Fletcher was “on call” at the time Mrs. Ford placed the emergency telephone call and that he was then to be available for the Ford child’s medical care. It is also undisputed that the pediatrician’s answering service dispatched the Fords’ emergency telephone call shortly after it was received. This evidence, along with Mrs. Ford’s testimony that she twice contacted the pediatrician’s answering service and that an unidentified woman returned her call on behalf of Dr. Fletcher, was sufficient to challenge Dr. Fletcher’s testimony that he did not receive the Fords’ emergency call. The trial court did not err in denying Dr. Fletcher’s motion for summary judgment.

Judgment affirmed.

Deen, P. J., Banke, P. J., Sognier and Pope, JJ., concur. Birdsong, C. J., and Carley, J., concur specially. Beasley, J., concurs in the judgment only. Benham, J., dissents.

Carley, Judge,

concurring specially.

While I concur in the judgment affirming the denial of the motion for summary judgment, I cannot agree with the majority’s conclusion in Division 1 that Mrs. Ford’s testimony concerning the telephone call from an unknown individual purportedly calling on behalf of Dr. Fletcher was admissible and probative. In this connection, I completely agree with Division 2 of Judge Benham’s dissent.

However, there is additional evidence in the record which makes it clear that Dr. Fletcher’s summary judgment was properly denied. Ms. Sharon Bryan, a corporate executive with the answering service, testified that after the incident she talked with Dr. Fletcher who told her that “he felt the situation was an unavoidable one.” More importantly, Dr. Fletcher stated to Ms. Bryan that “he had done everything he could as a doctor.” This is certainly some evidence of appellant’s involvement at the time of the relevant communications between the appellees, the answering service and the anonymous caller who gave medical advice. “[W]hile a party may not admit liability, as a mere conclusion of law, where the facts positively show the absence of any liability [cits.], a party may admit the existence of facts which would give rise to liability.” Rossville Fed. &c. Assn. v. Ins. Co. of N. America, 121 Ga. App. 435, 440 (2) (174 SE2d 204) (1970). This admission against interest by Dr. Fletcher is some evidence of his having received the message and, therefore, it was not error to deny the motion for summary judgment.

I am authorized to state that Chief Judge Birdsong joins in this special concurrence.

Benham, Judge,

dissenting.

Implicit in the majority’s statement of the case is a holding that Dr. Fletcher’s liability for negligence depends, as a threshold matter, on the fact that he or someone authorized by him to do so received notification from the answering service of Mrs. Ford’s calls. I agree fully with that holding, but being of the opinion that the evidence does not support a finding that Dr. Fletcher or an agent of his got the message, I must file this dissent to the majority’s judgment.

1. My first disagreement with the majority opinion concerns its recitation of testimony that “the Fords’ emergency message was dispatched to Dr. Fletcher along with ‘several other messages. . .’ ” That statement gives the erroneous impression that there was direct evidence that the message was given to Dr. Fletcher. Although the majority does partially explain in a footnote the inconclusiveness of the testimony cited, the erroneous impression remains. The answering service supervisor’s testimony made clear, however, that the witness had no way of knowing to whom the message was given. The witness did not testify that there were no indications on the message slip concerning the identity of the recipient of the message, only that she did not remember seeing anything on the slip at the time she reviewed it other than the stamps showing when it was received and when it was given out. The message slip itself is no longer in existence and there is no record of which answering service employees took in and gave out the message.

2. My next disagreement spans both divisions of the majority opinion. While I agree with the quotation in the first division concerning hearsay, I cannot agree that Mrs. Ford offered the testimony only for the purpose of showing that she received such a call, and not for the purpose of establishing that since someone returned the call for Dr. Fletcher, he or an agent of his must have gotten the message. If, however, Mrs. Ford’s testimony was offered solely to show that she got a telephone call, then the majority’s reliance on it in the penultimate sentence of its opinion is misplaced: the testimony cannot be ruled admissible for the limited purpose of showing that a telephone call was received, then used for the purpose of establishing the truth of the contents, i.e., that the caller was calling on Dr. Fletcher’s behalf.

That the unknown woman caller’s assertion that she called on Dr. Fletcher’s behalf has no probative value is established by the holding in Price v. State, 208 Ga. 695 (1) (69 SE2d 253) (1952): “The testimony of one person to a conversation had with another person over a telephone, in which the person testifying did not know the other person or recognize the other’s voice, had not at that time even heard the voice, and had never heard it since, and the identity of such other person is not established otherwise than by what was said in the conversation itself, is hearsay. . .”

Decided December 5, 1988 —

Rehearing denied December 19, 1988

Allen & Ballard, William L. Ballard, Edward D. Flynn III, for appellants.

Harold D. Corlew, for appellees.

3. While tragedies such as the apparently preventable death of appellees’ son touch us all, our responsibility to the law requires that our decisions be made on the hard facts in the record before us. The pertinent evidence in the present case consists of Dr. Fletcher’s testimony that he did not receive the Fords’ message, that he had authorized no one to receive messages for him, and that he did not authorize anyone to call the Fords on his behalf; countered by the Fords’ evidence that they called their pediatrician’s office, that a message was taken by the answering service, that Dr. Fletcher was on call, that the Fords’ message was given out by the answering service, that no one remembers or can establish to whom the message was given, and that an unknown person who purported to be calling for Dr. Fletcher returned Mrs. Ford’s call.

Without establishing a relationship between the unknown caller and Dr. Fletcher, the Fords are left with no evidence other than that their message, intended for Dr. Fletcher, was given to someone whose identity has not been established, and that the call was returned by someone whose identity has not been established. Those facts are not inconsistent with Dr. Fletcher’s denial of receipt of the message.

When a movant for summary judgment produces, to establish a fact, the positive, uncontradicted testimony of an unimpeached witness, the opposing party’s production of circumstantial evidence which is npt inconsistent with the movant’s positive evidence is not sufficient to create a question of fact and prevent the grant of summary judgment. Fletcher Emerson &c. Co. v. Davis, 134 Ga. App. 699 (4) (215 SE2d 725) (1975); Helms v. Young, 130 Ga. App. 344 (2) (203 SE2d 253) (1973). See also Myers v. Phillips, 197 Ga. 536 (4) (29 SE2d 700) (1944). The direct, positive, and uncontradicted testimony of Dr. Fletcher that he did not receive the message and that no one was authorized to receive messages for him, countered only by the Fords’ showing that their message was given to someone whose identity is unknown, a showing entirely consistent with Dr. Fletcher’s testimony, demanded the grant of summary judgment to Dr. Fletcher. I would, therefore, reverse the trial court’s judgment.

       Tempra is a “trademark for preparations of acetaminophen.” Dorland’s Illustrated Medical Dictionary (25th ed.), p. 1547. Acetaminophen is a compound “used as an analgesic.” Id. at 11.

       More specifically, Dr. Winner deposed that “[t]he type of bacterial meningitis which [the Fords’ child] had, hemophilus influenza meningitis, has a mortality rate of less than 10%, with some more recent studies showing the mortality rate to be less than 5%.”

       Personnel of the pediatrician’s answering service testified that the custom of the answering service was to indicate on message slips to whom a message was directed unless it was given to the person to whom it was directed. The night shift supervisor for the answering service testified that she could remember nothing about the message slip documenting the Fords’ emergency call other than the time the message was received and the time it was given out.


author: Carley, Judge. Beasley, Judge, Deen, Presiding Judge,

text:
    77370.
    THE STATE v. HUGHES.
    (377 SE2d 192)
   Carley, Judge.

Officer J. R. Barner, while off-duty and operating his own vehicle, was forced off the road by the erratic driving of appellee. Officer Barner followed appellee’s vehicle and observed appellee commit numerous traffic offenses. When appellee eventually pulled into the parking lot of an apartment complex and stopped, Officer Barner followed and pulled in behind appellee’s vehicle. Officer Barner approached appellee and identified himself as a police officer. Officer Barner was asked to produce his identification and he complied. At the request of Officer Barner, by-standers telephoned 911 to relay the report that an officer was in need of assistance in the parking lot of the apartment complex and, within three or four minutes, other officers arrived at the scene. During those few minutes before the other officers arrived, Officer Barner asked appellee for his driver’s license and he engaged appellee in general conversation. At one point, appellee suggested he was simply going to drive away, but Officer Barner informed him that he would not be allowed to do so. Officer Robert Littler, who had arrived at the scene in response to Officer Barner’s request for assistance, asked appellee to perform field sobriety tests. Based upon appellee’s performance of those tests and the information supplied by Officer Barner, Officer Littler placed appellee under formal arrest for driving under the influence. At no time prior to this formal arrest by Officer Littler was appellee ever advised of his Miranda rights.

Prior to trial, appellee filed a motion to suppress and a motion in limine. The trial court conducted a hearing and concluded that Officer Barner had “effected an arrest of [appellee] when he informed [appellee] that he could not leave the scene of the initial stop.” Because appellee had not been given his Miranda rights at that time, the trial court granted appellee’s motions, precluding the introduction at appellee’s trial of any testimony concerning the conversation between appellee and Officer Barner which had occurred prior to the formal arrest and of any evidence of the field sobriety tests which had been conducted by Officer Littler prior to the formal arrest. The State appeals from this order of the trial court.

According to Officer Barner, he had followed the vehicle only to investigate the cause of appellee’s erratic driving behavior and at no point had he arrested appellee. “[A] police officer may make ‘an intrusion short of arrest’ where he has ‘specific and articulable facts’ which reasonably warrant such intrusion.” Radowick v. State, 145 Ga. App. 231, 233 (1) (244 SE2d 346) (1978). It is clear that Officer Barner had “specific and articulable facts” which warranted an investigation of appellee’s erratic driving behavior. The trial court con-eluded, however, that, notwithstanding Officer Barner’s testimony, the investigation had become an arrest when appellee was informed that he would not be allowed to drive away from the scene. This conclusion is erroneous. A detention of appellee was obviously necessary in order that the investigation of his erratic driving behavior could be conducted. The authority to investigate “specific and articulable facts” without the authority to detain would be meaningless. “Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment.” (Emphasis supplied.) State v. Misuraca, 157 Ga. App. 361, 364 (276 SE2d 679) (1981). Accordingly, the mere fact that appellee was detained from driving away from the scene of the authorized investigation of his erratic driving behavior would not authorize the conclusion that he was under arrest. “Although it is obvious that every arrest includes detention, not every detention is an arrest. . . .” Radowick v. State, supra at 238 (3). See also Franklin v. State, 143 Ga. App. 3, 5 (2) (237 SE2d 425) (1977), holding that “[a]n investigatory stop is not automatically an arrest simply because an officer is armed with a shotgun. [Cits.]”

The relevant inquiry is whether the detention to which appellee was actually subjected exceeded the limited scope of the detention to which the officers were authorized to subject him. “Although the original ‘seizure’ in the instant case was ‘an intrusion short of arrest’ ([cit.]), [we must determine whether] the subsequent actions of the police overreach[ed] the minimal intrusion authorized and converged] the legal stop into an illegal arrest[.]” Radowick v. State, supra at 236 (3). Under the circumstances, Officer Barner was clearly authorized to effectuate “a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification, licensing of [the] driver and [the] vehicle if appropriate, a protective ‘pat-down’ of the outer surface of clothing for weapons if [he had] reasonable apprehension that [appellee was] armed or dangerous, and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop. [Cits.]” Radowick v. State, supra at 237 (3). The undisputed evidence of record shows that, at no point prior to appellee’s formal arrest, was his detention converted into an illegal arrest. The mere fact that appellee was detained by Officer Barner for three or four minutes pending the arrival of the on-duty officers did not result in an arrest. See generally Green v. State, 168 Ga. App. 558 (309 SE2d 687) (1983). The officer who initiates an investigation is obviously in the best position to determine whether the circumstances confronting him warrant the presence of other officers. This is especially true where, as here, the officer is not on duty and may lack both the means and the official authority to effect a formal arrest should that prove to be necessary. Moreover, appellee was not merely physically detained during the brief three or four minute period. Officer Barner used that period of time to identify appellee, to investigate appellee’s driver’s license and to engage in general conversation with appellee rather than to interrogate him. Such activities are clearly authorized during the brief investigatory stop of a motorist whose prior erratic driving could have been because of intoxication or could have been the result of a medical emergency or some other cause. Upon the arrival of Officer Littler, he took over the investigation and appellee was subjected to field sobriety tests. Such tests were reasonably related to those circumstances which had justified the initial detention of appellee. It was only after appellee had failed to pass the field sobriety tests and intoxication had been confirmed as the probable explanation for his erratic driving that he was formally arrested.

“When a violator is placed in custody or under arrest at a traffic stop the protection of Miranda arises; however, roadside questioning at a routine stop does not constitute such a custodial situation. [Cit.]” Lebrun v. State, 255 Ga. 406, 407 (339 SE2d 227) (1986). The undisputed evidence of record shows only that appellee was subjected to a routine momentary detention for the purpose of investigating a possible traffic violation. As a result of the ensuing investigation, appellant was formally arrested for driving under the influence. It follows that the trial court erred in granting appellee’s motions to suppress the introduction of the evidence which the State had acquired in full compliance with all applicable constitutional principles.

Judgment reversed.

McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Beasley, J., concurs specially. Birdsong, C. J., Deen, P. J., and Sognier, J., dissent.

Beasley, Judge,

concurring specially.

I agree with the result reached by the majority but by a different route.

The trial court did not grant defendant’s motion in limine and motion to suppress entirely but did suppress “all reference to the field sobriety tests ... as well as the contents of all discussions between [the uniformed officer] and the defendant with the exception of the implied consent warnings and the defendant’s response thereto.” The basis was that defendant had not been advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The State challenges the suppression.

The ruling as to “statements” could only have related to the defendant’s faulty performance of the alphabet field sobriety test, in which he could not recite the alphabet all the way through. There was no evidence of any other incriminating statement made by defendant. Barrier testified that the only thing defendant spoke was a challenge to Barner’s identity as a police officer and that he was going to leave. Littler did not testify about anything that defendant said other than what was expressly not suppressed and what defendant said in the alphabet test. So the question is reduced to whether the Miranda rights must be given before field sobriety tests are administered.

Not all in-custody statements are subject to Miranda. A volunteered statement, which is not the product of interrogation or its functional equivalent, would not be suppressible on this ground. Rhode Island v. Innis, 446 U. S. 291 (100 SC 1682, 64 LE2d 297) (1980). Or a statement may not have been incriminating. Hoffman v. United States, 341 U. S. 479, 485-487 (71 SC 814, 95 LE 1118) (1951); Axson v. Nat. Surety Corp., 254 Ga. 248, 250 (327 SE2d 732) (1985). The trial court would have had to know what the statement was and the circumstances under which it was made, to suppress it from introduction at trial. If some statement was in fact made but is not yet evidenced of record, then the ruling was premature.

As to the field sobriety tests, Officer Littler testified that in addition to the alphabet test, he gave several physical dexterity tests in which defendant was asked to perform specific movements using certain members of his body. Since he failed, these produced incriminating evidence.

As authority for his motions, defendant cited only Berkemer v. McCarty, 468 U. S. 420 (104 SC 3138, 82 LE2d 317) (1984). Thus his Miranda challenge was based on the federal constitution alone. It would not reach the field sobriety tests, because only statements, and not acts, are subject to the warnings in order to be admissible under Fifth Amendment standards. Schmerber v. California, 384 U. S. 757, 761 (86 SC 1826, 16 LE2d 908) (1966).

As to the “statement” made in response to Officer Littler’s request that he “recite the alphabet all the way from A through Z as clearly and plainly as possible,” an application of Berkemer leads to the conclusion that the federal right against self-incrimination was not violated. Although Berkemer dealt with roadside questioning of a motorist detained pursuant to a traffic stop rather than the administration of a field sobriety test which involved speech, the rationale is fundamentally the same. It is the nature and the purpose of the detention and of the questions asked by the officer which primarily govern.

The Court stated; “It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’ ” Supra at 440. The Court recognized the distinction between the period of detention after the initial stop and the point at which the person is “subjected to restraints comparable to those associated with a formal arrest.” Supra at 441. “[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Supra at 441. In determining that question, the Court noted that the police officer asked some questions and requested the suspect to perform a simple balancing test. Thus the fact that a field sobriety test is administered does not render the detention one of “custody” or arrest.

The Georgia Supreme Court relied on Berkemer in concluding that, under federal law, “roadside questioning at a routine stop does not constitute such a custodial situation [as to require Miranda warnings]” Lebrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227) (1986). In its analysis in VanLoo v. State, 187 Ga. App. 290 (370 SE2d 44) (1988), this Court regarded the field tests to have been performed prior to arrest. That is logical, since the field tests are an investigatory tool and their results may lead to a termination of the detention.

Under Georgia law, the affirmative acts requested of defendant as well as the alphabet statement would be subject to suppression if compelled. 1983 Ga. Const. Art. I, Sec. I, Par. XVI; OCGA § 24-9-20. A proper application of these provisions and the cases construing and applying them would not lead to suppression here either. As analyzed in Montgomery v. State, 174 Ga. App. 95, 96 (1) (329 SE2d 166) (1985), “OCGA § 24-9-20 is inapplicable . . . because appellant was not a person charged in a criminal proceeding at the time he attempted to complete the [field sobriety tests].” Nor was there in Montgomery any violation of the state constitutional right against self-incrimination. The factors found wanting in that case are also absent here.

There was thus no basis in law to suppress the evidence.

Deen, Presiding Judge,

dissenting.

Because the majority opinion either substitutes its factual determination for that of the trial court or reaches an erroneous legal conclusion that the off-duty police officer had not effected an arrest of the appellee, I must respectfully dissent.

At the hearing, the police officer testified on cross-examination as follows: “A. He said, ‘I’m going to get back in my vehicle and leave.’ And I said, ‘No, sir. You’re not going to do that.’ If that’s an arrest; that’s an arrest. Q. Okay. Fine. So my question is as far as you were concerned he had broken the law; is that right? A. Yes, sir. He had broken the law. Q. He was not free to leave, was he? A. No, sir. I wouldn’t have let him leave. Q. So for all intents and purposes, he was under arrest except you hadn’t said the magic words. Is that basically what it amounted to? A. That is correct.”

The majority opinion considers this case to be one merely involving a permissible investigatory stop. However, there appears to be little question that the off-duty police officer had concluded that the appellee had committed certain offenses for which he should be arrested, and had summoned other police officers to complete the arrest process. In short, at the point in time when the off-duty police officer indicated that the appellee could not leave, his investigation was over.

Decided December 1, 1988 —

Rehearing denied December 19, 1988

Patrick H. Head, Solicitor, Beverly M. Hartung, Assistant Solicitor, for appellant.

Melvin S. Nash, Mary A. Stearns, for appellee.

If something looks like an arrest, sounds like an arrest, and acts like an arrest, it probably is an arrest, regardless of whether or not one uses the magic word itself. See Chilivis v. Turner Communications Corp., 140 Ga. App. 648, 650 (231 SE2d 415) (1976) (“act, quack, and look like ducks”). The trial court’s conclusion under its broad discretion that the off-duty police officer arrested the appellee is a realistic conclusion drawn from the evidence, and it is not clearly erroneous. Since a trial court’s factual determinations after a suppression hearing must be accepted by the appellate courts where they are not clearly erroneous, State v. Louis, 185 Ga. App. 529 (364 SE2d 896) (1988), the trial court’s order in this case should be affirmed.

I am authorized to state that Chief Judge Birdsong and Judge Sognier join in this dissent.


author: Sognier, Judge. Banke, Presiding Judge, Carley, Judge, Beasley, Judge,

text:
    76508.
    BOATWRIGHT v. MAYOR & COUNCIL OF FLEMINGTON.
    (377 SE2d 1)
   Sognier, Judge.

Larry Boatwright brought suit against the mayor and council of the city of Flemington, Georgia, alleging the city had improperly denied him a business license for the continued operation of a garage on leased premises within the city. The trial court granted the defendants’ motion to dismiss the complaint for failure to state a claim, and Boatwright appeals.

The record reveals that appellant previously had been denied a business license temporarily for being in violation of city ordinances, and that the reason given for the instant denial of a business license to operate the garage was appellant’s failure to remedy violations of city ordinances despite repeated requests to do so. The ordinances in question prohibit the storage of inoperative vehicles on the property in excess of 30 days and the parking of vehicles within 20 feet of the public intersection. Although mention is made of appellant’s failure to provide sanitary facilities on the property, that failing was properly directed to the owner of the property leased by appellant, and is not listed by appellees as a reason for the denial of the business license in their answer to appellant’s interrogatories.

1. We note that although, as appellees correctly point out, the complaint initially sought to compel the city to issue to appellant a 1987 business license, stating a claim in the nature of mandamus, the record shows that under the pretrial order, which supersedes the complaint, OCGA § 9-11-16 (b), the plaintiff sought only damages for the failure to issue the license, thereby bringing this appeal within the jurisdiction of this court. Accordingly, we do not address any of the parties’ contentions regarding the superseded claim.

2. Appellant contends the trial court erred by dismissing his complaint for failure to state a claim because the city’s actions amounted to an inverse condemnation and a taking of property without just compensation. This contention is meritless. The ordinances in question are within the municipality’s police power. See OCGA § 36-60-9. “ ‘The police power is that inherent and plenary power in the state over persons and property, when expressed in the legislative will, which enables the people to prohibit all things inimical to the comfort, safety, health, and welfare of society, and is sometimes spoken of as the law of overruling necessity.’ [Cit.] ... It is not to be confused with the power of eminent domain, under which property is acquired for the making of public improvements upon condition that the owner be compensated for the taking or damaging of his property. ‘This police power or the law of overruling necessity is not controlled by the constitutional limitation that private property shall not be taken for public use without compensation, which was not designed for, and should not be extended to such cases.’ [Cits.] . . . ‘Uncompensated obedience to a regulation enacted for the public safety under the police power of the State is not a taking or damaging without just compensation of private property . . .’ [Cit.]” McCoy v. Sanders, 113 Ga. App. 565, 566-567 (148 SE2d 902) (1966).

3. Appellant also maintains that his alleged violations of the ordinances had been previously known and permitted, and thus the allegations of ordinance violations were pretextual, in an effort to drive him out of business. Although the issuance of a permit or license is a governmental function, see City of Thomson v. Davis, 92 Ga. App. 216 (1) (88 SE2d 300) (1955), which would render appellees immune from liability from its performance when acting in good faith within the scope of their duty, “[t]his immunity is not extended to them when they do things not authorized by law, or act in a wanton or malicious way and with intent to injure the property of another. In the latter case, they are responsible for a violation of their duty. [Cit.]” Hodges v. Youmans, 122 Ga. App. 487, 491 (177 SE2d 577) (1970). “Good faith, like conspiracy is always a question for the jury. Even though the party may swear he acted in good faith, the jury may decide he acted in bad faith from consideration of facts and circumstances in the case.” (Emphasis omitted.) Hodges v. Youmans, 129 Ga. App. 481, 483 (3) (200 SE2d 157) (1973).

While it may eventually appear, in the course of this case, that the only true object of appellant’s allegations is the city itself, as urged by the dissent, such a finding by this court at this time would be premature. Appellant has styled his complaint against the mayor and the council. Under Georgia law, we have notice pleading and we cannot now say whether appellant can show facts which support his claim against these parties. We are here reviewing the trial court’s grant of appellees’ motion to dismiss the complaint for failure to state a claim, and it is well established that a “ ‘pleading should not be dismissed for failure to state a claim unless it appears beyond a doubt that the pleader can prove no set of facts in support of his claim which would entitle him to relief.’ [Cit.]” Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 114 (2) (351 SE2d 513) (1986). In the case at bar, it is not outside the realm of possibility that appellant could prove a set of facts supporting his allegation that appellees acted in bad faith. Such facts, if proven, would support a cause of action for damages. Consequently, the trial court erred by dismissing the complaint for failure to state a claim.

Judgment reversed.

Birdsong, C. J., and McMurray, P. J., concur. Banke, P. J., and Benham, J., concur specially. Deen, P. J., Carley, Pope and Beasley, JJ., dissent.

Banke, Presiding Judge,

concurring specially.

I agree with Judge Carley that the mayor and members of the city council were sued solely as the governing authority of the city and not as individuals. None of them are identified by name in the complaint; and although the mayor was served, it is clear under the circumstances that he was served only as agent for service of the governing authority. Both the complaint and the pre-trial order entered in the case consistently refer to the defendant as either “the city” or “the governing authority of the city,” and the pre-trial order further specifies that “the names of the parties as shown in the caption . . . are correct and complete and there is no question by any party as to the misjoinder or nonjoinder of any parties.”

Nevertheless, I agree with the majority that the complaint should not have been dismissed. The gist of the appellant’s claim, as summarized in the pre-trial order, is that the city acted arbitrarily and capriciously in refusing to issue him a business license. I believe such an allegation is sufficient to state a claim for relief under 42 USC § 1983. Although a municipality cannot be held liable for damages under § 1983 on a respondeat superior theory, it may be sued under § 1983 “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflict the injury” for which relief is sought. Monell v. New York City Dept. of Social Svcs., 436 U. S. 658, 694 (98 SC 2018, 56 LE2d 611) (1978). See also Martinez v. California, 444 U. S. 277, 284 (100 SC 553, 62 LE2d 481) (1980) (holding that state immunity law affords no defense in a § 1983 action); Owen v. City of Independence, 445 U. S. 622, 650 (100 SC 1398, 63 LE2d 673) (1980) (holding that a municipality sued under § 1983 cannot acquire qualified immunity from liability by asserting the good faith of its officials as a defense); Patsy v. Bd. of Regents of Fla., 457 U. S. 496 (102 SC 2557, 73 LE2d 172) (1982) (holding that exhaustion of state administrative remedies is not an absolute prerequisite to bringing a § 1983 action). Thus, although the city may easily be able to establish in the present case that it did not act arbitrarily or capriciously in failing to issue the appellant a business license, I would hold that complaint is not subject to dismissal at this juncture for failure to state a claim.

I am authorized to state that Judge Benham joins in this special concurrence.

Carley, Judge,

dissenting.

I fully concur in Divisions 1 and 2 of the majority opinion. However, I cannot agree with Division 3 of the majority opinion, nor with the reversal of the order dismissing the complaint for failure to state a claim. In order to place this case in its proper perspective with respect to the doctrine of sovereign immunity, it must be emphasized that the underlying action was against the City of Flemington. Although the defendant was styled as “Mayor and Council of the City of Flemington,” the only defendant is the city, and neither the mayor nor members of the council were joined as defendants. Thus, I respectfully submit that the majority has misplaced its reliance upon Hodges v. Youmans, 122 Ga. App. 487 (177 SE2d 577) (1970). In Hodges, the plaintiff “filed suit. . . against Fred Wessels, Jr., Elinor Jackson, and 21 other defendants, alleging a conspiracy on their part to injure and damage him respecting his construction of a trailer court.” Likewise, in Vickers v. Motte, 109 Ga. App. 615 (137 SE2d 77) (1964) upon which Hodges relied, Mr. Vickers was joined as a party defendant on the basis of allegations that he had improperly acted “under the color of his office.” Vickers v. Motte, supra. The only averments of the complaint in this case are that the city has acted improperly vis-a-vis the plaintiff. “Accordingly, from the allegations of the [complaint] it appears that the [city] in doing the acts complained of here was engaged in the exercise of its police power, although in an improper manner, which power is one of its governmental functions. [Cits.]” (Emphasis supplied.) City of Thomson v. Davis, 92 Ga. App. 216, 218-219 (88 SE2d 300) (1955).

Notwithstanding the only operative averments of the complaint as above pointed out, the majority concludes that “we cannot now say whether appellant can show facts which support his claim against these parties.” (Emphasis supplied.) (Majority opinion, page 678) The record unequivocally shows that there are no other “parties.” The city was collectively sued as “Mayor and Council of the City of Flemington.” The only party designated to be served and the only party served was O. C. Martin, Jr., the Mayor of the City of Flemington. However, even Mayor Martin was not named as a defendant to the civil action. Accordingly, contrary to the majority’s conclusion, I believe that it is “outside the realm of possibility that appellant could prove a set of facts supporting his allegation that [any individual defendant] acted in bad faith.” (Majority opinion, page 678) This is so simply because there are no individual defendants.

I also cannot agree with the portion of the special concurrence which would find that a claim has been stated on the basis of 42 USC § 1983. The special concurrence states: “The gist of appellant’s claim, as summarized in the pre-trial order, is that the city acted arbitrarily and capriciously in refusing to issue him a business license.” (Emphasis supplied.) (Special concurrence, p. 678) There was no pre-trial order entered in this case. A proposed pre-trial order was filed the day before the court granted the motion to dismiss, but that “proposed” order was not signed by the court.

However, even if the language in the “proposed” order were to be considered, there still would be absolutely no hint of a § 1983 claim in this case. “In order to state a claim under 42 USC § 1983 the plaintiff must allege that the defendant is a person who deprived him of a constitutional right while acting under color of state law or custom.” Davis v. City of Roswell, 250 Ga. 8, 9 (295 SE2d 317) (1982). “We interpret 42 USC § 1983 to create a cause of action, cognizable by the courts of this state, based upon acts which are in implementation of an intentional policy, adopted or ratified by the governing body of a public agency, which acts work deprivation of a constitutional right.” (Emphasis in original.) City of Cave Spring v. Mason, 252 Ga. 3, 4 (310 SE2d 892) (1984). The complaint does not even attempt to state a claim upon which relief can be granted on the basis of 42 USC § 1983.

Therefore, the trial court correctly determined that the complaint failed to state a claim upon which relief could be granted. Murphy v. ACLU of Ga., 258 Ga., 637, 638 (4) (373 SE2d 364) (1988). The judgment of the triál court should be affirmed, and I respectfully dissent.

I am authorized to state that Presiding Judge Been and Judge Pope join in this dissent.

Decided September 6, 1988 —

Rehearing denied December 20, 1988

John E. Pirkle, for appellant.

James W. Smith, for appellees.

Beasley, Judge,

dissenting.

I respectfully dissent as it appears that we do not have jurisdiction of this appeal. As my brother Judge Carley notes, the pretrial order was not entered. So whatever relevancy it would have to the claim had it been entered, it is of no significance in consideration of the allegations of the unamended complaint, which the trial court concluded failed to state a cognizable claim against “Mayor and Council of the City of Flemington,” the defendant as styled by plaintiff.

That leaves us with the complaint. It alleges in part that plaintiff “has no remedy at law and prays that the Court require that the City issue him a business license, so that he can conduct his business.” In his prayer for relief, he repeats the demand “that the City be required to give him a business license and stop harassing him.”

Thus, plaintiff clearly seeks equitable relief as well as money damages. “Unless otherwise provided by law, the Supreme Court of Georgia “shall have appellate jurisdiction of . . . All equity cases; . . . .” Ga. Const. 1983, Art. VI, Sec. VI, Par. III. No law provides us with jurisdiction of this type case, and it should be transferred lest we exceed our powers.