text:
    A98A1694, A98A1695.
    FULTON COUNTY TAX COMMISSIONER v. GENERAL MOTORS CORPORATION; and vice versa.
    (507 SE2d 772)
   Eldridge, Judge.

General Motors Corporation, plaintiff (“GM”) leased motor vehicles manufactured by it which were subsequently reacquired by GM and held such vehicles at the Atlanta Auto Auction in Fulton County in tax years 1993 and 1994, pending sale and shipment out-of-state. GM contended that it was entitled to freeport exemption as to such property from ad valorem taxation. However, the Fulton County Tax Commissioner (“Tax Commissioner”) demanded that GM pay $510,379.99 in 1993 ad valorem tax on such returned property. GM paid the ad valorem taxes on such property. Subsequently, GM sought a refund for 1993 and 1994 and sued the Tax Commissioner under OCGA § 48-5-450. In the suit, GM also sought a declaratory judgment that it was entitled to freeport exemption in the future for such personal property.

The Tax Commissioner answered, but did not raise an OCGA § 9-11-19 defense of indispensable parties or the wrong defendant, in the Fulton County Board of Tax Assessors, either in the answer or in an OCGA § 9-11-12 (b) (6) or (7) motion.

GM moved for partial summary judgment with supporting affidavits that the Tax Commissioner wrongfully denied GM freeport exemption from ad valorem taxes on the motor vehicles held at Atlanta Auto Auction for sale out-of-state. The Tax Commissioner presented no evidence in opposition and consented to the entry of partial summary judgment determining that GM was entitled to such freeport exemption.

The case came on for trial on the issue of a refund for 1993 and 1994, and the parties announced in open court on February 7, 1995, that the case was settled. By trial court order, the case was removed from the trial calendar to effect settlement within 30 days. On March 23,1995, the trial court entered a consent judgment refunding/granting a credit against future taxes based on certain ad valorem taxes for 1993 and 1994, and the Tax Commissioner was ordered to grant to GM freeport exemption from ad valorem taxation upon proper application for all motor vehicles at the Atlanta Auto Auction sold out-of-state in the future.

On March 23, 1996, GM filed its freeport exemption application with the Fulton County Board of Tax Assessors pursuant to OCGA § 48-5-48.1 (a). However, on October 29, 1996, the Fulton County Board of Tax Assessors gave notice of an ad valorem tax assessment on such property that GM contended was exempt under the consent judgment. Notwithstanding either the consent summary judgment or the consent judgment, the Tax Commissioner billed the ad valorem taxes upon such property, and GM paid the tax bill under protest.

On April 11, 1997, GM brought an ancillary motion under the original complaint to enforce the consent judgment and for the award of attorney fees, with supporting affidavits. Subsequently, the Tax Commissioner raised by motion to set aside the judgments the issue that Fulton County could not be bound by the settlement, because the attorneys for the Tax Commissioner had no authority to enter into a settlement binding Fulton County. The Tax Commissioner, for the first time, raised the issue that he was the wrong party and that the Fulton County Board of Tax Assessors was the correct party.

On October 13, 1997, the trial court entered an order of enforcement as to the binding effect and enforceability of the consent judgment as to the Tax Commissioner and denied the award of attorney fees to GM.

The Tax Commissioner filed his application for discretionary appeal; the notice of appeal was filed on November 7, 1997, in A98A1694 when leave was granted. On November 12, 1997, GM filed its cross-appeal in Case No. A98A1695.

Case No. A98A1694

The Tax Commissioner enumerates as error that the trial court granted GM’s motion to enforce the consent judgment. We do not agree.

1. After 1992, the Fulton County Board of Tax Assessors were made the officials with whom the application for freeport exemption was required to be filed. See OCGA § 48-5-48.1; Ga. L. 1992, p. 2482, § 1. For purpose of motor vehicles, their role in receiving the application is only ministerial as agents for the Tax Commissioner, who is the only official authorized to collect ad valorem taxes and to determine which property is exempt for the tax digest. See OCGA § 48-5-103 (9); see generally Levetan v. Lanier Worldwide, 265 Ga. 323, 324 (1) (454 SE2d 504) (1995).

In Fulton County, the Tax Commissioner has the combined duties of the office of tax receiver, OCGA § 48-5-103, and of tax collector, OCGA § 48-5-127. In pertinent part, the Tax Commissioner has the ultimate discretion and authority to determine what property goes on the tax digest that he must prepare and submit to the State Revenue Commissioner for approval, and in doing so, he must ultimately decide what property shall receive ad valorem tax exemption on the tax digests. See OCGA § 48-5-103 (9). The Fulton County Board of Tax Assessors acts as the agents for the Tax Commissioner in processing the freeport exemption.

In appealing the wrongful assessment of motor vehicles, GM used the proper procedure against the Tax Commissioner to contest the assessment. See East West Express v. Collins, 264 Ga. 774, 775 (449 SE2d 599) (1994); Blackmon v. Scoven, 231 Ga. 307, 309-310 (2) (201 SE2d 474) (1973). The Tax Commissioner stands in the shoes of the State Revenue Commissioner regarding assessment and valuation of motor vehicles. See Ga. L. 1967, pp. 91, 94, § 2A; Ga. L. 1978, pp. 309, 491-492, § 2; OCGA §§ 48-5-450; 48-5-475.

Fulton County Board of Tax Assessors’ ministerial duties in processing the freeport application as to motor vehicles are: (1) to determine if the application for freeport exemption was timely filed; and (2) to determine if the applicant falls into one or more categories for exemption. See Ga. Const. of 1983, Art. VII, Sec. II, Par. Ill (a); OCGA §§ 48-5-48.1; 48-5-48.2; Apollo Travel Svcs. v. Gwinnett County Bd. of Tax Assessors, 230 Ga. App. 790, 792 (4) (498 SE2d 297) (1998); Committee for Better Govt. v. Black, 216 Ga. App. 173, 174-176 (2) (453 SE2d 772) (1995). OCGA § 48-5-450 provides that appeals from assessments as to motor vehicles are from the Tax Commissioner. See Apollo Travel Svcs. v. Gwinnett County Bd. of Tax Assessors, supra. Further, where the Fulton County Board of Tax Assessors denied freeport exemption as to motor vehicles held for shipment out-of-state, this resulted in an assessment, and GM had the right of appeal directly to the superior court under OCGA § 48-5-450, which it did in the form of a motion to enforce the consent judgment. “ ‘Any owner who contests the value assessment of a motor vehicle . . . may appeal such assessed value as provided for in Code Section 48-5-311. . . .’ OCGA § 48-5-450. In subsection (e) of § 48-5-311, provision is made for the county board of tax assessors to review the valuation of personal property and, in the event the challenge to the valuation is rejected, . . . [sjubsection (f) of that section provides for an appeal to the superior court by the taxpayer[.] . . . Once that showing [of freeport exemption] is made, the taxing authority must make an appropriate [grant of exemption if the conditions of timeliness of the application and eligibility exist]. . . . [I]t is initially the county board of tax assessors and, in the event of continued disagreement, the [superior court] who must consider the taxpayer’s showing and make appropriate [grant of freeport exemption if all conditions are satisfied].” East West Express v. Collins, supra at 775-776. “[I]t is the local taxing authority to whom motor vehicle owners must demonstrate [freeport exemption].” Id. at 777.

The State Revenue Commissioner by law determines fair market value of all motor vehicles state-wide for “uniformity evaluation of all motor vehicles” and sets the assessment; the State Revenue Commissioner in turn sends such prepared lists to the respective county tax collectors for collection, i.e., the Tax Commissioner. OCGA §§ 48-5-442; 48-5-442.1. “The statutory scheme for ad valorem taxation of motor vehicles provides that every vehicle owned in this state on January 1 is subject to ad valorem taxation (OCGA § 48-5-471); that the State Revenue Commissioner shall prepare a uniform evaluation of vehicles for use as the taxable value of the vehicles (OCGA § 48-5-442); and that the tax shall be at the assessment level and mill rate levied by the taxing authority for the previous calendar year. OCGA § 48-5-443.” East West Express v. Collins, supra at 775 (1). Therefore, a county board of tax assessors has no function or duty in assessing motor vehicles under OCGA § 48-5-299, because this is done by the Revenue Commissioner state-wide. The only duty a county board of tax assessors has under OCGA § 48-5-299 is to investigate and to determine if motor vehicles are returned, returned in the correct county, returned in the correct state, or to apportion the ad valorem tax between states where the vehicle is used in interstate commerce. See East West Express v. Collins, supra; OCGA §§ 48-5-299; 48-5-444 (a) (2); 48-5-451. None of such duties were applicable under the facts of this case. See OCGA §§ 48-5-299; 48-5-444 (a) (2); 48-5-451. Therefore, the Fulton County Board of Tax Assessors had no duties in this case under OCGA § 48-5-299 in the original action in superior court.

An assessment of personal property made in the manner prescribed by statute is indispensable to any proceedings to enforce the collection of ad valorem taxes. See Colvard v. Ridley, 218 Ga. 490 (128 SE2d 732) (1962); Hutchins v. Howard, 211 Ga. 830 (89 SE2d 183) (1955). “[Assessment when used in connection with the subject of taxation, includes all of the steps necessary to be taken in the legitimate exercise of the power to tax.” Georgia R. &c. Co. v. Redwine, 208 Ga. 261, 266 (66 SE2d 234) (1951). Thus, later, in sending the October 29,1996 notice of tax assessment, the Fulton County Board of Tax Assessors acted ultra vires, because such ministerial function was placed in the hands of the Tax Commissioner by the State Revenue Commissioner by statute, and valuation and assessments were made by the State Revenue Commissioner. See OCGA §§ 48-5-442; 48-5-445; 48-5-450.

OCGA § 48-5-450 procedure provides a direct appeal to the superior court, avoiding the normal, slower appeal procedure for contested ad valorem assessments that now goes through the county board of equalization before going to the superior court, which factor of speed is a consideration in determining the applicability of tax appeal procedure. See OCGA § 48-5-311; Ga. L. 1967, pp. 91, 93-94, § 2A; OCGA § 48-5-450; Gwinnett County Bd. of Tax Assessors v. Gwinnett I Ltd. Partnership, 265 Ga. 645 (458 SE2d 632) (1995). The normal appeal procedure under OCGA § 48-5-311 is too slow going through the county board of equalization before going to the superior court at first term, as compared to a direct appeal to the superior court to be heard at first term under OCGA § 48-5-450, because the contested portion of tax does not have to be paid until final resolution of the appeal, and such non-payment would prevent the use of the motor vehicle until final resolution of the assessment dispute, since the issuance of a tag or decal would not occur until payment of all the ad valorem tax, absent the statute. Ga. L. 1967, pp. 91, 92-93, § 2; OCGA §§ 48-5-450; 48-5-473; 48-5-474; G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 222 Ga. App. 118, 119 (2) (473 SE2d 253) (1996), rev’d on other grounds 268 Ga. 327 (486 SE2d 810) (1997); see generally as to speed of procedure Gwinnett County Bd. of Tax Assessors v. Gwinnett I Ltd. Partnership, supra. The affidavit of illegality makes the tax collector, i.e., the Tax Commissioner, the proper party against whom to contest the assessment instead of the county board of tax assessors. See Ga. L. 1967, pp. 91, 94, § 2A; Ga. L. 1978, pp. 309, 491-492, § 2; OCGA §§ 48-5-450; 48-5-475.

While OCGA § 48-5-441 classifies motor vehicles and mobile homes as separate classes of tangible property for ad valorem purposes, the General Assembly did not intend to exclude such class of tangible property from the ambit of OCGA § 48-5-48.2 for purposes of freeport exemption. The language of OCGA § 48-5-48.2 (a) (1) and (b) (3) carefully uses the all-encompassing descriptive term “inventory of finished goods,” instead of “tangible property,” because the General Assembly intended to include all classes of tangible property under the constitution without enumerating each so that there would be equal treatment to avoid constitutional implications as to equal protection, rational purpose, and disparate treatment. Ga. Const. of 1983, Art. I, Sec. I, Par. II and Art. VII, Sec. I, Par. Ill (a), (b) (1), (2); U. S. Const., Amendment XIV; Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., 186 Ga. App. 723, 724 (368 SE2d 326) (1988); Novak v. Redwine, 89 Ga. App. 755, 757 (81 SE2d 222) (1954). Further, since manufacturers of motor vehicles in Georgia are foreign corporations, to exclude motor vehicles as a separate class of tangible property from the freeport exemption provisions of OCGA § 48-5-48.2 might deny such non-resident corporations the same privileges accorded Georgia citizens. See U. S. Const. Art. IV, Sec. II. The purpose of the freeport exemption from ad valorem taxation, both as a constitutional provision and as to local referendum, was to promote and to keep local employment and economy high through maintaining or increasing manufacturing and commerce within Georgia counties. Therefore, the exclusion of motor vehicle manufacture and wholesaling from freeport exemption, which industry historically has been a major industry in the metro Atlanta area with substantial employment and impact on the local economy, was not the intent of the General Assembly. With the many downsizings or closings of auto plants around the country, the ad valorem exemption was intended to induce the continued presence of such industry. Thus, the plain language of the freeport exemption was to be inclusive of all classes of tangible personal property, now or in the future. See Apollo Travel Svcs. v. Gwinnett County Bd. of Tax Assessors, supra at 791-792 (1); see generally Coalson, Freeport Exemption from Property Taxes for Inventory Stored in Georgia But Destined for Shipment Out-of-State, 28 Ga. St. B. J. 108 (1991).

Further, OCGA §§ 48-5-48.2 and 48-5-450 are to be construed in pari materia, so that the Tax Commissioner was the proper party in the action below and not the Fulton County Board of Tax Assessors. “[Sjtatutes are not to be construed in a vacuum, but in relation to other statutes of which they are a part, and all statutes relating to the same subject-matter are to be construed together, and harmonized wherever possible. Ryan v. Commrs. of Chatham County, 203 Ga. 730 (1) (48 SE2d 86) (1948).” East West Express v. Collins, supra at 775. Further, OCGA § 48-5-445 requires that returns for motor vehicles be filed with the tax collector, i.e., the Tax Commissioner, and not the county board of tax assessors.

“[T]he legislature is presumed to enact statutes with full knowledge of the existing law. Henry v. Wild Pines Apts., 177 Ga. App. 576 (340 SE2d 233) (1986).” G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, supra at 119 (2). OCGA § 48-5-440 et seq. is more specific than OCGA § 48-5-299 (and even OCGA § 48-5-48.1), and “a specific statute governs over a more general statute where they are in conflict. [Cit.]” Ga. Mental Health Institute v. Brady, 263 Ga. 591, 592 (2) (436 SE2d 219) (1993).

Since the Tax Commissioner was the proper party under OCGA § 48-5-450 and since the partial summary judgment became a final judgment upon the entry of the consent judgment on March 23,1995, (OCGA §§ 5-6-34; 9-11-54 (b); 9-11-56 (h); 9-11-58), then the factual and legal basis for GM’s freeport exemption under OCGA § 48-5-48.2 for 1993 and 1994 became res judicata as to what had been litigated, and collateral estoppel applied on such issue of exemption as to the Fulton County Board of Tax Assessors on all future, annual applications unless there was a substantial factual change.

OCGA § 9-12-40 provides that: “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” See Mitcham v. Blalock, 268 Ga. 644, 645-646 (2) (491 SE2d 782) (1997); Fowler v. Vineyard, 261 Ga. 454, 455 (405 SE2d 678) (1991); Alford v. Smith, 224 Ga. 802, 804 (164 SE2d 781) (1968). Thus, res judicata applied to the tax exemption for 1993 and 1994 and the tax refund.

“The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. . . . Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.” Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (1995).

This case presented an “adjudication on the merits” in a court of competent jurisdiction, because “it is only where the merits were not and could not have been determined under a proper presentation and management of the case that res judicata is not [applicable]. If, pursuant to an appropriate handling of the case, the merits were or could have been determined, then [res judicata] is valid.” (Emphasis in original.) Piedmont Cotton Mills v. Woelper, 269 Ga. 109, 110 (498 SE2d 255) (1998); see also Gamble v. Gamble, 204 Ga. 82, 88-89 (1) (48 SE2d 540) (1948).

“Collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim. Furthermore, collateral estoppel only precludes those issues that actually were litigated and decided in the previous action, or that necessarily had to be decided in order for the previous judgment to have been rendered. Therefore, collateral estoppel does not necessarily bar an action merely because the judgment in the prior action was on the merits. Before collateral estoppel will bar consideration of an issue, the issue must actually have been decided.” Waldroup v. Greene County Hosp. Auth., supra at 866-867. Collateral estoppel applies to the years 1995 and 1996 as to the freeport exemption for such years based upon substantially the same facts.

Under the statutory ad valorem taxing scheme, as a matter of necessity, the Fulton County taxing authority, the Tax Commissioner, and the Fulton County Board of Tax Assessors are in privity to avoid the relitigation of the same tax year at the time of assessment and of collection; in fact, the Supreme Court repeatedly refers to them collectively as “local taxing authorities,” or “tax officials.” Southern Tax Consultants v. Scott, 267 Ga. 347, 348 (478 SE2d 126) (1996); East West Express v. Collins, supra at 775-776; Container Corp. of Am. v. Charlton County, 259 Ga. 389, 391 (1) (383 SE2d 105) (1989); North By Northwest Civic Assn. v. Cates, 241 Ga. 39, 43 (2) (243 SE2d 32) (1978); see also Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 211 (367 SE2d 43) (1988). The reason that the taxing authorities must be privies is that “it is imperative that these appeals be heard promptly so that the governing authority can rely on the revenue collected based on the values established for taxable property for each year. In contrast to condemnation or probate matters [cits.] where the issue in the appeal is in general in need of one-time resolution, the question of tax assessment occurs annually and is inextricably bound up with the public interest.” Haldi v. DeKalb County Bd. of Tax Assessors, 178 Ga. App. 521, 525 (2) (344 SE2d 236) (1986); see also Gwinnett County Bd. of Tax Assessors v. Gwinnett I Ltd. Partnership, supra.

The consent judgment stated: “[p]rovided that General Motors Corporation properly applies for freeport exemption pursuant to applicable state and county law, all motor vehicles held by General Motors Corporation at the Atlanta Auto Auction at 1900 Buffington Road, Red Oak, Fulton County, Georgia on January 1 of each year which are to be sold to out-of-state destinations are exempt from ad valorem taxation under the freeport-exemption provided under OCGA § 48-5-48.2 and Code of Fulton County, § 26-2-11.”

There is nothing in such consent judgment that collateral estoppel from the summary judgment did not already bind the Fulton County Board of Tax Assessors to do. Waldroup v. Greene County Hosp. Auth., supra at 866-867. Under the unified taxing statutory scheme, since the local taxing authorities are privies, then the consent judgment also bound the Fulton County Board of Tax Assessors. The Fulton County Board of Tax Assessors was precluded only from relitigating the basis for GM’s freeport exemption and not any substantial factual change.

Further, GM’s claim for freeport exemption was meritorious and, under the undisputed facts in the record, mandated the grant of partial summary judgment and final judgment, because GM was the manufacturer, had merely leased the vehicles, and held them as “inventory of finished goods” for “resale purposes” for shipment out-of-state and not for sale and “shipment to its retail customers,” which it did not have. OCGA § 48-5-48.2 (a); Apollo Travel Svcs. v. Gwinnett County Bd. of Tax Assessors, supra at 793.

“[I]t is a cardinal rule in the construction of grants of exemptions from taxation, whether such grants be by statute or the constitution, that such exemptions should be strictly construed in favor of the public, and that nothing passes by implication.” Lowry v. McDuffie, 269 Ga. 202, 204 (2) (496 SE2d 727) (1998) (quoting Salvation Army v. Strickland, 253 Ga. 758, 759 (325 SE2d 147) (1985), in turn quoting City of Columbus v. Muscogee Mfg. Co., 165 Ga. 259 (1) (140 SE 860) (1927)). “On the other hand, if the language of a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.” (Punctuation omitted.) Lowry v. McDuffie, supra at 204 (quoting Garrard v. Hicks, 266 Ga. 181, 182 (465 SE2d 665) (1996), in turn quoting Rayle EMC v. Cook, 195 Ga. 734, 735 (25 SE2d 574) (1943)). “Therefore, looking to the real intent and meaning of the statute [cit.] and reading the statute according to the natural and most obvious import of its terms [cit.], we find that [GM] is . . . entitled to a freeport exemption for these [motor vehicles]. Accordingly, under these circumstances the superior court did not err in [granting GM’s] request for a freeport exemption.” Apollo Travel Svcs. v. Gwinnett County Bd. of Tax Assessors, supra at 793.

2. Under the motion to set aside the prior judgments under OCGA § 9-11-60 (a), Division 1 controls adversely to the Tax Commissioner that the judgment is not void on its face. “[T]he Supreme Court has expressly limited judgments void on their faces under subsection [OCGA § 9-11-60 (a)] to ‘those judgments which lack either personal or subject matter jurisdiction.’ Murphy v. Murphy, 263 Ga. 280, 282 (430 SE2d 749) (1993).” Utica Mut. Ins. Co. v. Mitchell, 227 Ga. App. 830, 831-832 (490 SE2d 489) (1997). Neither defense was raised in this case. See Alford v. Smith, supra.

The Tax Commissioner seeks to set aside the consent judgment by going outside the record before the trial court on grounds that his lawyers had no authority to enter such settlement. On this motion to set aside the judgments of the trial court, the Tax Commissioner failed to submit any evidence under oath to prove his allegations that his counsel had no authority to enter into the consent judgment, that he was not aware of the settlement, that he did not authorize the settlement, and that he did not ratify such settlement. The record is also silent as to whether or not the Tax Commissioner or one of his agents was present in open court when his attorneys made the “distinct and formal admission[] of fact . . . made for the express purpose of dispensing with formal proof” at the motion for summary judgment that the Tax Commissioner had no evidence in opposition to the grant of the motion and consented to its grant, because the facts authorized the grant of the motion. National Assn. for the Advancement of Colored People v. Pye, 96 Ga. App. 685, 686 (101 SE2d 609) (1957); see also Whatley v. State, 189 Ga. App. 173, 175 (4) (375 SE2d 245) (1988); McCoy v. McSorley, 119 Ga. App. 603, 604 (2) (168 SE2d 202) (1969).

“If [the Tax Commissioner’s motion] should be treated as a motion to set aside the verdicts and judgment for matters not appearing upon the face of the record, it is fatally defective for the want of. . . evidence. [Cits.]” Johnson v. Johnson, 188 Ga. 800, 802 (4 SE2d 807) (1939). “The burden of proof below was on the [Tax Commissioner] to prove the allegations of [his] motion to set aside, i.e., that [his attorneys had no authority to enter into the consent judgment], and on the record we have, [he] did not sustain that burden.” Gainesville Fin. Svcs. v. McDougal, 154 Ga. App. 820, 823 (270 SE2d 40) (1980); see also American Liberty Ins. Co. v. Sanders, 122 Ga. App. 407, 410 (3) (177 SE2d 176) (1970); Lewis v. Termplan, 124 Ga. App. 507, 508 (184 SE2d 473) (1971).

Therefore, we never reach the issues raised by the Tax Commissioner’s allegations, because he failed to submit any evidence to make the cases of City of Atlanta v. Black, 265 Ga. 425 (457 SE2d 551) (1995) (“Black”) and Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (2) (308 SE2d 544) (1983) applicable. Both cases dealt with issues outside the record and the lack of authority of a party’s attorney to settle and, in both cases, the movants perfected the record by evidence on such issue. Black, supra at 425; see also Black v. City of Atlanta, 35 F3d 516 (11th Cir. 1994); Brumbelow v. Northern Propane Gas Co., 169 Ga. App. 816 (315 SE2d 11) (1984).

Case No. A98A1695

GM’s enumeration of error is that the trial court erred in denying it attorney fees under OCGA §§ 9-15-14 and 13-6-11. We agree.

The trial court held that OCGA § 9-15-14 could not apply because the underlying action had become a final disposition without a request by GM within 45 days of the entry of judgment. Such is correct as to attorney fees regarding the original action up to and including the consent judgment. See Fairburn Banking Co. v. Gafford, 263 Ga. 792, 793 (439 SE2d 482) (1994); Gist v. DeKalb Tire Co., 223 Ga. App. 397 (477 SE2d 616) (1997). However, such cases do not deal with ancillary proceedings to enforce the judgment, which by the very nature of the proceeding must come after the final disposition of the action and to which attorney fees apply exclusively to the ancillary action caused by conduct after the final disposition. See Little v. General Motors Corp., 229 Ga. App. 781, 782 (495 SE2d 572) (1997).

The motion to compel enforcement of the consent judgment was substantially a new OCGA § 48-5-450 appeal to the superior court as to the tax year 1996. As a separate and distinct dispute between the same parties, this proceeding was not a final disposition; the order of October 9, 1997, was a final disposition as to the tax year 1996 and the issue of enforcement. See OCGA § 9-15-14 (b); Wright v. Stuart, 229 Ga. App. 50, 51 (494 SE2d 212) (1997); Thompson v. Pulte Home Corp., 209 Ga. App. 558, 559-560 (434 SE2d 89) (1993).

Decided September 18, 1998

Vernitia A. Shannon, Jacqueline S. Groover, William R. Turner, for appellant.

King & Spalding, Nolan C. Leake, Ciaría D. Horn, for appellee.

Such expenses under OCGA § 9-15-14 would only apply to attorney fees and expenses of litigation incurred since the entry of the consent judgment. OCGA § 9-15-14 does not authorize the trial court to award expenses and attorney fees before an appellate court proceeding. Bankhead v. Moss, 210 Ga. App. 508, 510 (2) (436 SE2d 723) (1993); Castro v. Cambridge Square Towne Houses, 204 Ga. App. 746 (420 SE2d 588) (1992).

OCGA § 13-6-11 is also applicable if GM can show bad faith of the Tax Commissioner in entering into the consent judgment or subsequently in refusing to obey the judgment of the trial court. See Toncee, Inc. v. Thomas, 219 Ga. App. 539, 543 (466 SE2d 27) (1995); accord Stone v. King, 196 Ga. App. 251, 253 (396 SE2d 45) (1990). When a party has to resort to litigation to enforce an agreement, such circumstances may authorize an award of litigation expenses under OCGA § 13-6-11. See Clayton v. Deverell, 257 Ga. 653, 656 (362 SE2d 364) (1987); Stone v. King, supra.

The real significance as to which statute to apply on remand is that the language of each statute is different. OCGA § 9-15-14 does not authorize the award of appellate litigation expenses, while such issue has never been raised under OCGA § 13-6-11.

Judgment affirmed in Case No. A98A1694. Judgment reversed and remanded in Case No. A98A1695.

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


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A1958, A98A1959, A98A1960.
    HEAD et al. v. HEAD (three cases).
    (507 SE2d 214)
   Eldridge, Judge.

Sidney A. Head, Sr. (“Ward”) is an incapacitated adult, suffering dementia caused by Alzheimer’s disease, who lived in Georgia until Alan L. Head, his son, under his durable health care power of attorney, moved the Ward from a nursing home in Georgia to a nursing home in Arizona. The Ward was totally demented and incompetent at least by November 10, 1992. Martha Dean Head (“Fiduciary”) is the Ward’s second wife, who married the Ward in 1978, who is a Jackson County resident, and who was made the guardian of the person and property of Sidney A. Head, Sr.; the petition was filed on November 15, 1993, and she was appointed on March 25, 1994. Sidney A. Head, Jr., Alan L. Head, Jenelle H. Eager, and Laura K. Head (“Head Children”) are the adult children of the Ward by his first wife, who are all residents of western states, i.e., Montana, Arizona, and California.

The Head Children contend that the Ward commingled his assets with theirs, so that the assets could not be easily separated; however, there is nothing in the record to substantiate such claim.

From November 10, 1992, through November 15, 1993, prior to becoming guardian, the Fiduciary received $37,258.13 in assets of the Ward or of the assets jointly held by the Ward and the Fiduciary as wife or with a Head Child and the Ward; after becoming Fiduciary, there was no accounting for such monies. From November 15, 1993, until March 25, 1994, while the guardianship petition was pending, the Fiduciary received and has not accounted for $21,020.55 in assets, of which at least $17,806.17 went into the Fiduciary’s personal account; however, there was a failure to show that such funds were not used to meet the joint needs of the Ward and Fiduciary. After being appointed fiduciary on March 25, 1994, and before March 25, 1997, the Fiduciary received $5,839.38 without making an accounting.

The Head Children and the Fiduciary entered into a settlement agreement on March 25, 1994, to resolve the issue of the Ward’s' funds, commingled funds, and funds of the Fiduciary, which was a settlement between the Ward, the Head Children, and the Fiduciary. However, the Fiduciary sought to declare the settlement invalid. In a declaratory judgment action between the Fiduciary and the Head Children, the trial court held that the settlement agreement was valid; however, the record is silent as to the exact terms of such agreement. The trial court also declared that the durable health care power of attorney granted by the Ward in 1991 to Alan L. Head, a resident of Arizona, took priority over the guardianship regarding health care decisions. The trial court’s ruling of February 21, 1997, prompted the Fiduciary and the Head Children to enter into a second settlement agreement on March 12, 1997, as to all the parties’ present and future claims and to terminate all costly litigation. Such agreement was approved on May 22,1997, by the trial court, and was approved on July 28, 1997, by the probate court.

On May 19, 1998, the Fiduciary filed with the probate court her “final return” as guardian under the settlement agreement. The probate court on July 28, 1997, entered an order of dismissal of the guardian and approval of the final accounting submitted by the Fiduciary after considering it. The Head Children filed a notice of appeal from the probate court’s order of July 27, 1997, to the superior court on August 27, 1997.

The March 12, 1997 settlement agreement provided for the resolution of the health care needs of the Ward. It also provided that the Fiduciary resign as guardian and provided that Sidney A. Head, Jr., be appointed as successor guardian. It also provided for the liquidation of the Ward’s estate. It provided that the Head Children receive a minimum of $815,000 and any sums in excess of $1,040,000, if the estate was worth that sum. The agreement provided for the Fiduciary to present to the probate court a final accounting for assets that came into her hands as fiduciary, which would be approved after audit by a CPA selected by the Head Children. The agreement provided that any loans to the Fiduciary or the Fiduciary’s relatives from the Ward’s estate would have to be repaid or charged against the Fiduciary’s share.

The 1997 annual report did not account for pre-guardian assets that either the Head Children or the Fiduciary, individually, received and only accounted for assets remaining in the Ward’s estate. Subsequently, when the CPA conducted the audit after the 1997 annual report, he found $66,861.82 which went primarily into the Fiduciary’s personal account prior to guardianship, but $18,681.20 of this went to the Ward and a Head Child. The Fiduciary submitted the 1997 annual report to the Jackson County Probate Court as the final accounting; the probate court accepted and approved the annual return as the final accounting on July 28,1997, notwithstanding that these simas disbursed prior to the guardianship had not been reported or accounted for in the return.

The CPA’s investigation covered a period from January 1, 1991, until March 31,1997, which encompassed 27 months when there was no fiduciary and such periods were not covered by the final accounting under the settlement agreement. The Head Children contend that the CPA’s audit showed $5,839.38 came within the guardianship and was unaccounted for, while $58,278.68 was unaccounted for prior to the guardianship, of which $18,681.20 went to a Head Child and $48,180.62 went to the Fiduciary. The Head Children wanted these assets included in the Ward’s estate' for purposes of the settlement agreement.

The Head Children filed a motion for contempt to enforce the May 22, 1997 order approving the settlement agreement by compelling the inclusion of the unaccounted for assets under the final accounting and to remove the Fiduciary for breach of her fiduciary duties to the Ward. The Fiduciary filed her own contempt motion against the Head Children in the declaratory judgment action regarding the March 25,1994 settlement and the durable health care power of attorney. The Fiduciary successfully moved to dismiss the appeal from the final accounting on the basis of approval by the probate court of the 1997 annual report under the settlement agreement. The basis for the Head Children’s motion for contempt was the failure to pay over on demand the unaccounted for funds of the Ward prior to the guardianship, which would swell the Ward’s estate for purposes of calculation of the settlement distribution and which in effect was an action to enforce the consent judgment. The Fiduciary’s contempt action against the Head Children was that they improperly withheld their approval of the final accounting, which in effect was an action to enforce the consent judgment.

All motions were heard by the trial court on December 16, 1997. The trial court ruled against the Head Children and for the Fiduciary and excluded the unaccounted for assets from the estate, which meant that $66,861.82 of the Ward’s assets were retained by the Fiduciary or the Head Child. Further, the Head heirloom family silver had not been located and the trial court would not hold the Fiduciary in contempt for not delivering it.

The Head Children filed their notices of appeal on January 30, 1998, in each case. The Head Children’s briefs and enumerations of error are identical for each of the appeals: A98A1958; A98A1959; and A98A1960. Therefore, they will be treated as a unitary whole.

1. The first enumeration of error is that “the trial court erred in its decisions regarding the motions, due to its erroneous construction of the term of art within the settlement agreement, ‘final accounting’ of the guardian, which results in the breach of fiduciary duty by the guardian by failing to account for the assets of the ward.” We do not agree in this case under the peculiar facts and circumstances of the settlement agreement.

“Final accounting” is generally a legal issue. However, in this case, the parties, through the two settlement agreements and the various actions in probate and superior court, have caused “final accounting” in this case to become a mixed question of law and fact.

Despite the Head Children’s attempt to have these appeals reviewed on a plain error of law standard, the standard of appellate review of civil contempt cases is “any evidence.” “The decision of the trial court will not be disturbed by an appellate court absent abuse of discretion. If there is any evidence from which the trial court could have concluded that its order had been violated, this court is without power to disturb the judgment. Williams v. William L. Lampkin & Co., 53 Ga. 200 (4) (1874); see also Durham v. Spence, 228 Ga. 525 (3) (186 SE2d 723) (1972); Patten v. Miller, 190 Ga. 152 (5) (8 SE2d 786) (1940).” Ponder v. Ponder, 172 Ga. App. 372 (323 SE2d 210) (1984). Thus, the trial court had the right to rely upon the settlement agreement and the probate court’s approval and discharge of the Fiduciary on evidentiary or legal reasons in excluding the unaccounted for preguardianship assets from the “final accounting,” and accepting the last annual report as the substantial equivalent of the “final accounting”; such was some evidence before the trial court on the hearing for contempt.

Thus, the trial court was presented with evidence that the probate court had treated the last annual return of the guardian as the final accounting and had thereby excluded the pre-guardianship unaccounted for assets from the Ward’s estate. The probate court determined unreported assets that went to the wife or the children prior to the guardianship did not have to be accounted for to the probate court immediátely prior to discharge of the Fiduciary and substitution of Sidney A. Head, Jr., as the guardian.

A problem inherent in this case, and all other guardianship of the person and property of a spouse, is that the role of fiduciary and spouse automatically become blurred; their financial interests are inseparable as a matter of law, and there exists an inherent conflict of interest. See Dowdy v. Jordan, 128 Ga. App. 200 (196 SE2d 160) (1973).

In this case, the Fiduciary, individually as spouse, had legitimate past, present, and future potential claims against the Ward’s estate, either in life or at death, as spouse, joint tenancy with right of survivorship, gift, and widow. See OCGA §§ 19-3-9; 19-6-1; 19-6-4; 19-6-7 through 19-6-9; 29-2-3 (3); 53-3-1 et seq.; 53-4-2; Stokes v. Stokes, 246 Ga. 765, 771 (273 SE2d 169) (1980); see also Thomas v. Thomas, 259 Ga. 73 (377 SE2d 666) (1989); Halpern v. Halpern, 256 Ga. 639 (352 SE2d 753) (1987).

Thus, the Fiduciary, in her individual capacity as spouse, has an unascertained financial interest in the Ward’s estate that cannot be readily determined by an accounting or audit, because such determination of legal and equitable interests must be made by the finder of fact. Without an appreciation of such actual and potential claims upon the Ward’s estate by the Fiduciary in her legal relationship as spouse, there can be no determination of what conduct, if any, violated a fiduciary duty. Thus, the settlement between the stepmother and children was in the best interest of the Ward, as well as the parties. Further, the Head Children seek to hold the Fiduciary accountable for funds that she received or that they received prior to the guardianship in the amount of $61,022.44 and accountable for $5,142.50 that she received individually between March 25, 1994, and March 25, 1995. The trial court and the probate court correctly excluded or ignored such sums as being a part of the Ward’s estate under the settlement agreements. If it had been the intent of the parties, mutually agreed upon, that such assets then outside the Ward’s estate be included in the Ward’s estate (these assets were not at the time of settlement, in the estate and were merely a chose in action of the estate at best), then the agreement should have plainly stated such mutual intent. Because the second settlement did not specify that such pre-guardianship, unaccounted for assets shall be included in the Ward’s estate for final accounting purposes, then, as part of the settlement, these unaccounted for pre-guardianship assets were mutually intended to be excluded; the Fiduciary, probate court, and superior court all reached such conclusion. In the face of the absence of evidence to the contrary and the meager evidence that is in the record, we agree.

OCGA § 29-2-24 requires that a fiduciary determine and marshal the assets of a ward and make such inventory to the probate court in the same manner as an administrator within four months of qualifying. See Ga. L. 1996, p. 504, § 4; OCGA § 53-7-75. It would appear that, if the $61,022.44 in pre-guardianship assets that were removed from the Ward’s estate must be accounted for, then such claims or choses in action should come under the guardian’s initial inventory of the Ward’s estate. “It is a well-settled principle of law, both in this State and other States, that it is the duty of a guardian to take possession and preserve for the benefit of [her] ward all property, real and personal, within [her] knowledge, that belongs to [her] ward. ... At common law the guardian is required to take possession of [her] ward’s property, and is therefore liable not only for what actually comes into [her] hands, but for such property as [she] might have taken possession of by the exercise of diligence, and without any wilful default on [her] part. The guardian should charge [herself] for all the estate of the ward that came to [her] hands at any time, whether inventoried or not, in so far as [she] has not already accounted for the same; and is liable for all estate of [her] ward, that [she] might have collected or reduced to possession by the exercise of proper diligence and prudence.’ [Cit.]” (Emphasis in original.) Ray v. Andrews, 46 Ga. App. 676, 677-678 (168 SE 906) (1933). See also Short v. Mathis, 107 Ga. 807, 808-809 (1) (33 SE 694) (1899); Beavers v. Brewster, 62 Ga. 574, 578 (1879). Thus, absent the settlement, the Fiduciary had a duty to account for such claims against her in her individual capacity or the Head Child for funds of the Ward received prior to guardianship in the initial inventory of the estate. After becoming guardian, “the deposit of the ward’s funds to the individual account of the guardian, and failure to account therefor, are per se a breach of the bond.” Hawes v. Standard Accident Ins. Co., 54 Ga. App. 776, 781 (3) (189 SE 59) (1936).

OCGA § 29-2-44 provides for annual reporting of the assets, income, and expenses for the estate for the preceding year or the appropriate period to show “with a note or memorandum of any other fact necessary to the exhibition of the true condition of the estate.” OCGA § 29-2-44 (a). “The return thus allowed and recorded shall be prima-facie evidence in favor of the guardian of its correctness.” OCGA § 29-2-44 (c).

OCGA § 29-2-72 provides the procedure for the replacement of a guardian voluntarily; “[i]f the judge is satisfied that the change of guardians will not be detrimental to the interest of the ward and no good cause is shown against it, the judge shall grant the prayer of the applicant, discharging him from his trust, on condition that he forthwith deliver all property and pay all money held by him as guardian, upon a fair settlement of his accounts to his successor. Upon the filing of the evidence of the settlement and of the receipt in full by his successor, the guardian shall be discharged from his trust.” OCGA § 29-2-72.

The settlement agreement, approved by the consent judgments of the superior court and probate court, cut off the statutory remedy of reopening the final settlement within five years and requiring an accounting for unreturned assets or choses in action and terminated the statutory and common law safeguards. See OCGA §§ 29-2-74; 29-2-76. The final settlement proceedings by a guardian require the probate court "to examine all the returns and accounts of the guardian, to hear all evidence which may be produced by either party, and to make a full, fair, and final settlement between the guardian and his ward. A full record of the final settlement shall be made by the court.” OCGA § 29-2-78 (a); Poullain v. Poullain, 76 Ga. 420 (4 SE 92) (1886); Henson v. Jones, 66 Ga. App. 22 (16 SE2d 886) (1941). When the unaccounted for pre-guardianship choses in action are excluded from the Ward’s estate, as done by both the probate and trial judges, the final annual report and the final accounting became substantially the same, because all other assets of the Ward are included and accounted for by the Fiduciary to the probate court.

Once the probate court accepted and approved the last annual report as the final accounting, as well as the prior inventory and annual reports, such dismissal and approval became final, i.e., res judicata, unless or until set aside by the probate court. OCGA §§ 9-11-60; 9-12-40; 9-12-42; Malpass v. Graves, 111 Ga. 743 (36 SE 955) (1900). The trial court correctly dismissed the appeal from the probate court as one of the statutory rights implicitly waived by the settlement agreement, because the settlement expressly contemplated finality of all litigation, and a de novo appeal from the probate court was inconsistent with that stated intent of the agreement. Thus, the judgment of the probate court became the final adjudication as to the issue of the final accounting by the Fiduciary to the probate court.

Such July 28, 1997 judicial determination of the probate court, along with the second settlement agreement, was some evidence that the superior court could consider in determining whether, as a mixed question of law and fact, the Fiduciary had fully complied with the settlement provision that she file a final accounting that was approved by the probate court. See Rolfe v. Rolfe, 15 Ga. 451 (1854). Therefore, the trial court did not err in finding that the Head Children were in contempt of the March 22,-1997 consent judgment and finding the Fiduciary was not in contempt.

2. The second enumeration of error is that “the trial court erred in its decisions regarding the motions, due to its erroneous construction of the term, ‘loan’ within the Settlement Agreement, and in the context of unaccounted for assets of a ward by a fiduciary, which results in the breach of fiduciary duty by the guardian by failing to account for the assets of the ward.” We do not agree.

The alleged “loans,” which is another label that the Head Children seek to attach to the assets that were unaccounted for during the period prior to the guardianship, are unsupported by any evidence that they were in reality loans; therefore, Division 1 controls. Further, the settlement agreement did not describe “loans” in such a fashion that such unaccounted for assets were required to be treated as loans.

Further, if any assets in the way of a loan had existed, uncollected, and were owed by the Fiduciary to the Ward’s estate, then any action in the form of an accounting had to be brought in the probate court only, because it alone had subject matter jurisdiction; subject matter jurisdiction was not in the superior court. See OCGA §§ 29-2-74; 29-2-76; 29-2-79; Moon v. Moon, 215 Ga. 110 (109 SE2d 39) (1959). The superior court, in approving the terms of the settlement agreement, could not be vested by the parties with subject matter jurisdiction over probate matters in the guise of power to enforce the settlement agreement. See in general Smith v. Smith, 248 Ga. 268 (282 SE2d 324) (1981); Williams v. Fuller, 244 Ga. 846 (262 SE2d 135) (1979). The settlement agreement provided that any final accounting occur in the probate court and be approved by the probate court. Thus, the parties agreed that the probate court would determine what was or was not an asset and to require accounting for such asset and were estopped to contest such final determination by the probate court adverse to them.

There was no evidence of any loan within the meaning of the settlement agreement, the final accounting, or the CPA’s report. In approving the final accounting, the probate court found no loan. “A guardian who before [her] qualification as such occupies the relation of debtor to [her] ward will, upon [her] appointment, be presumed to have paid such debt to the estate of the ward, and upon an accounting to the ward will be held liable. . . .” Ray v. Andrews, supra at 676 (2); accord Henson v. Jones, supra at 23. Thus, if the probate court found that loans were outstanding or money was due the estate by the Fiduciary, then the probate court would have ordered such sum paid by the Fiduciary. The trial court did not err in ruling that the Fiduciary was not in contempt by failing to repay a loan and that the Head Children were in contempt.

3. The third enumeration of error is that “the trial court erred in its decision regarding the motions, by placing the burden upon the Head Children to demonstrate failure by the fiduciary to locate the Head family silver, in that the fiduciary has the mandatory fiduciary duty to affirmatively account for the assets of the Ward.” We do not agree in this case under the peculiar facts and circumstances of the settlement.

The settlement agreement provided: “In that the heirlooms of the Head family should remain with the blood relatives of Sidney A. Head, Sr., the heirlooms of the Head family shall be provided to the Head children by Martha Dean Head, at the time of disbursement of the funds pursuant to paragraph 10 of this Agreement. These heirlooms are specifically as follows:. . . the initialed silver with the letter “H”, to the extent they can he located. . . .” (Emphasis supplied.)

Whatever the statutory and common law duties the Fiduciary may have had to turn over to a successor the tangible personalty of the Ward’s, the settlement agreement changed such duties in regard to the Head family’s monogrammed silver, i.e., “to the extent they can be located.” The Fiduciary has a continuing duty to find and to turn over the silver; if the silver is discovered by her in the future, then it must be turned over to the Head Children. However, for purposes of proving that the Fiduciary is in contempt for failure to do so, the Head Children, as the movants for the contempt citation, have the burden of proof that either the Fiduciary has the silver and will not or cannot turn it over to them or that the Fiduciary has made no good faith effort to “locate” the silver. The Head Children, for purposes of their contempt motion, failed to carry their burden of proof.

The burden of establishing the fact of contempt is on the party asserting contempt. See OCGA § 15-1-4 (a) (3); Colley v. Tatum, 227 Ga. 294 (180 SE2d 346) (1971); Martin v. Waters, 151 Ga. App. 149 (259 SE2d 153) (1979).

4. The fourth enumeration of error is that “the trial court erred in denying to the Head Children their costs and attorney fees pursuant to OCGA § 9-15-14, due to the Head Children having to seek compliance by the guardian with her mandatory fiduciary duties and per se breach of these duties.” We do not agree under the peculiar facts and circumstances in this case under the settlement agreement.

The Head Children have had the probate court, the superior court, and now this Court rule against them on the same issues in Divisions 1 through 3; under OCGA § 9-15-14 (b) they are not entitled to recover costs and attorney fees, as ruled by the trial court. The grant or denial of attorney fees and costs under OCGA § 9-15-14 (b) is discretionary; therefore, the standard of review is abuse of discretion. Haggard v. Bd. of Regents, 257 Ga. 524 (360 SE2d 566) (1987); Griffiths v. Phenix Supply Co., 192 Ga. App. 651 (385 SE2d 789) (1989).

Decided September 18, 1998.

Hulsey, Oliver & Mahar, R. David Syfan, for appellants.

Minkan & Snyder, Michael J. King, G. Brian Raley, for appellee.

Only when the “asserted . . . claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact” is the award mandated. OCGA § 9-15-14 (a). Only under such facts supporting an award under OCGA § 9-15-14 (a), where the “trial court’s decision denying the motion is not supported by the evidence” and had no factual merit or presented no justiciable issue of law, will this Court reverse a denial. Harkleroad & Hermance, P. C. v. Stringer, 220 Ga. App. 906, 908 (3) (472 SE2d 308) (1996); see also Moore v. Harris, 201 Ga. App. 248, 249 (410 SE2d 804) (1991). The trial court did not err in denying the Head Children’s motion.

5. Appellee’s motion for imposition of a penalty for frivolous appeal pursuant to Court of Appeals Rule 15 (b) is denied.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A98A1272.
    HORTON v. THE STATE.
    (507 SE2d 221)
   Beasley, Judge.

Convicted and sentenced on three counts of armed robbery (OCGA § 16-8-41) and one count of theft by taking (OCGA § 16-8-2), Vershorn Horton enumerates three errors: (i) the court found he did not establish a prima facie case of race discrimination in the State’s exercise of its peremptory jury challenges; (ii) the court improperly intimated he was guilty when it informed the jury that a co-indictee had pled guilty and had been sentenced; and (iii) he was denied effective assistance by counsel’s failing to move for a mistrial when the court spoke of the co-indictee’s guilty plea.

1. Horton is of a minority race, and the jury venire of thirty-four persons included six members of that race, two of whom were stricken by the State in exercising six peremptory strikes. Horton struck another, and the remaining three members of his race served on the twelve-person jury.

After jury selection, Horton objected under Batson v. Kentucky and asked the court to require the State to identify the reasons for striking the two. The court found he had not established a prima facie case of purposeful race discrimination and denied the request.

A Batson challenge is not only to protect a defendant’s right to a trial by his peers. Since Strauder v. West Virginia, the United States Supreme Court has “recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminate^] against the excluded juror. [Cits.]” Moreover, “[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. [Cits.]” Thus there are three values to be served by assuring race-neutral jury selection. Consequently, racially-motivated exclusion of members of the majority race is also prohibited.

“A Batson challenge initiates a three-step process requiring first that the party challenging the strikes establish a prima facie inference that the strikes were exercised with racially discriminatory intent. If a prima facie case of racial discrimination is established, under the second and third steps, the burden of production shifts to the proponent of the strikes to give race-neutral reasons for the strikes, and the trial court then considers the reasons given and decides whether the challenger has proven discriminatory intent. During this process, the burden of persuasion as to discriminatory intent does not shift from [but] remains with the challenger.” The court did not reach the second and third steps because it ruled that Horton failed to establish a prima facie case of racial discrimination.

Showing a prima facie case of discrimination is a necessary first step. Otherwise every peremptory strike could be challenged on grounds óf race discrimination and the prosecutor then required to articulate her race-neutral grounds for exclusion. Every juror has a race societally burdened with stereotypical barnacles, and a defendant, regardless of his own race, has standing to challenge a prosecutor’s strike of a juror as racially motivated and to require an explanation. Yet “peremptory” means “arbitrary; not requiring any cause to be shown.” A “peremptory challenge” is “[t]he right to challenge a juror without assigning a reason for the challenge.” A constitutionally prohibited reason, however, is race, and it must be excised lest it infect the process with racial prejudice. But the striking of any person does not give rise to a presumption of race-based exclusion. Absent a prima facie showing of racial discrimination, requiring a party to articulate those reasons defeats the purpose of peremptory challenges, which challenges are a “historical privilege” viewed as “one means of assuring the selection of a qualified and unbiased jury [cit.].”

Batson emphasized that showing that a member of defendant’s race was stricken from the jury is alone insufficient to meet the prima facie threshold. The trial court begins with the presumption that the prosecutor, like all oath-bound officers of the court, exercised the State’s challenges lawfully. Thus, “the burden is ... on the defendant who alleges discriminatory selection of the venire to prove the existence of purposeful discrimination.” Beyond showing that jurors of a particular race were stricken, “defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.”

Batson outlined various avenues available to make such a showing. “For example, a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. [The United States Supreme Court expressed] confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.”

Horton chose to pursue the avenue of showing a statistical pattern of discrimination. Such a prima facie showing is manifest in a “total or seriously disproportionate exclusion” of a race from the jury venire. Because of Horton’s choice, we focus on percentages in evaluating whether he met the prima facie threshold.

Horton’s sole evidence was that the State used 33 percent of its strikes to remove members of his race from the 34 person venire which contained 18 percent of his race. Had the State used only one of its strikes (seventeen percent) in this manner, Horton indisputably would have shown no prima facie case. It is the State’s use of an additional strike on which Horton rests his claim of purposeful race discrimination. Where the State uses less than 50 percent of its allotted strikes against members of a race, and more than 50 percent of such persons on the venire remain, the variance of one strike from strict percentage calculations does not alone constitute prima facie purposeful racial discrimination. “It did not result in the total or even the disproportionate exclusion of black venire on account of their race, nor is this single strike such an overwhelming application of peremptory challenges as to authorize the inference of intentional racial discrimination.”

The 15-point differential between the percentage of such jurors in the venire (18 percent) and the percentage of peremptory strikes used against them (33 percent) does not approach the differential found in cases where a prima facie case has been established. Since Horton presented no other relevant circumstances in support of his claim, and we find none, the trial court correctly held he failed to make a prima facie case of discrimination under Batson.

2. The court explained to the jury, after reading the indictment, that the named co-indictee “has previously [pled] guilty and been sentenced by this Court and therefore you are not required to reach any verdict as it relates to him. The only person on trial before you today is Vershorn Horton.” Horton contends this violated OCGA § 17-8-57 by improperly intimating he was guilty.

Horton did not object to this comment in the trial court nor move for a mistrial on this basis. Horton is estopped from raising the issue on appeal because he failed to preserve it.

Decided September 21, 1998.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

3. Horton claims he was denied effective assistance when his counsel failed to move for a mistrial at the time the court mentioned the guilty plea and sentence. But Horton can show no harm from the comment of the court. In its final charge, the court instructed the jury that “[b]y no ruling or comment which the Court has made during the progress of this trial has the Court intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant.” Furthermore, without objection two witnesses, including the co-indictee himself, testified that he was serving a sentence for his role in the robbery. Because the co-indictee was subject to cross-examination, harm if any from the court’s comment was cured and gave no grounds for a mistrial. Moreover, neither in the pleadings nor at the hearing on his amended motion for new trial did Horton’s new counsel raise the failure to object to these comments of the court as specific grounds for finding ineffective assistance, and thus this argument has been waived.

Judgment affirmed.

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

       476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       100 U. S. 303, 308 (25 LE 664) (1880).

        Batson, supra, 476 U. S. at 87.

       Id.; see Georgia v. McCollum, 505 U. S. 42, 48-49 (112 SC 2348, 120 LE2d 33) (1992); Powers v. Ohio, 499 U. S. 400, 406-407 (111 SC 1364, 113 LE2d 411) (1991).

        Coker v. State, 207 Ga. App. 482, 485 (428 SE2d 578) (1993) (Beasley, J., concurring specially).

        Chandler v. State, 266 Ga. 509 (2) (467 SE2d 562) (1996), illustrates the application of this principle. It was held that the striking of whites was not shown to be racially discriminatory.

       (Citation omitted.) Griffeth v. State, 224 Ga. App. 462, 463 (2) (480 SE2d 889) (1997); see United States v. Stewart, 65 F3d 918, 924-926 (11th Cir. 1995).

        Powers, supra, 499 U. S. at 416; Peters v. Kiff, 407 U. S. 493, 504 (92 SC 2163, 33 LE2d 83) (1972).

       Black’s Law Dictionary, p. 1023 (5th ed. 1979).

       Id.

        Batson, supra, 476 U. S. at 91.

       (Citations and punctuation omitted.) Id. at 93.

       Id. at 96.

       Id. at 97.

       Id. at 93; see Cantrell v. State, 217 Ga. App. 641, 643 (3) (459 SE2d 564) (1995).

        Cantrell, supra, 217 Ga. App. at 643 (3).

       See Smith v. State, 263 Ga. 224, 226 (4) (430 SE2d 579) (1993) (67-point differential — State used 100% of its strikes against blacks from a venire that was 33% black); Davis v. State, 263 Ga. 5, 7 (10) (426 SE2d 844) (1993) (37-point differential — State used 80% of its strikes against blacks from venire that was 43% black); Griffeth, supra, 224 Ga. App. at 464 (2) (30-point differential — State used 50% percent of its allotted strikes against blacks in selecting from a venire that was 20% black); Staples v. State, 209 Ga. App. 802 (1) (434 SE2d 757) (1993) (31-point differential — State used 50% of its strikes against blacks from venire that was 19% black).

       See Brown v. State, 261 Ga. 184, 185 (3) (402 SE2d 725) (1991).

        Garrett v. State, 173 Ga. App. 292 (1) (325 SE2d 911) (1985); see Freeland v. State, 223 Ga. App. 326, 327 (2) (477 SE2d 633) (1996) (“[i]ssues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court”) (citation and punctuation omitted).

        Cantrell v. State, 201 Ga. App. 184 (410 SE2d 208) (1991); see Barnes v. State, 269 Ga. 345, 354 (15) (496 SE2d 674) (1998); cf. OCGA § 24-3-52.

       See Keanum v. State, 212 Ga. App. 662, 663 (1) (442 SE2d 790) (1994) (specific grounds for ineffective assistance not raised in pleadings or at hearing are waived).


text:
    A98A0851.
    RAYBURN v. THE STATE.
    (506 SE2d 876)
   Beasley, Judge.

A jury convicted Sherilyn Rayburn of driving a motor vehicle while under the influence of alcohol (OCGA § 40-6-391 (a) (1)) and of making an improper left turn (OCGA § 40-6-120). She alleges three errors: (i) the court charged the jury that her refusal to submit to a chemical test was admissible against her; (ii) the court admitted oral testimony of horizontal gaze nystagmus (“HGN”) test results even though the State failed to comply with Rayburn’s discovery request; and (iii) the court allowed a voir dire question concerning whether potential jurors felt a blood alcohol test was required for a conviction and struck a juror who answered affirmatively.

1. The court charged the jury directly from OCGA § 40-6-392 (d): “In any criminal trial the refusal of the defendant to permit a chemical analysis to be made of her blood, breath, urine or other bodily substances at the time of her arrest shall be admissible into evidence against her.” Evidence showed Rayburn had refused an intoxilyzer breath test requested by police.

She contends this instruction mandated the jury to infer guilt from this refusal. Mandatory inferences or presumptions in criminal cases invade the province of the jury and unconstitutionally shift the burden of proof to defendant. The instruction contains no language regarding any inferences or presumptions, let alone mandatory ones. It merely informs the jury that it may consider the fact. As before, we uphold the giving of this instruction.

The refusal to submit to a chemical test “may be considered as positive evidence creating an inference that the test would show the presence of the prohibited substance.” We note that although “[a] conviction for driving . . . under the influence, of intoxicants may be based on circumstantial evidence,” it has recently been held in Brinson v. State that refusal to permit a chemical analysis will not alone sustain a conviction. Rayburn does not raise any issue in this regard.

2. Rayburn made a timely written demand for scientific reports under OCGA § 17-16-23, and the court directed the State to produce all such reports. The State redacted the preprinted section of the police report in which the arresting officer handwrote the results of the HGN test (a field sobriety test) on Rayburn. That section called for seven pieces of information: (a) whether the suspect wore hard contacts, which was marked “no”; (b) whether the test was positive, negative, or refused, which was not marked; (c) whether there was lack of smooth pursuit by the suspect’s eyes, which was marked “both”; (d) whether there was distinct nystagmus at maximum deviation, which was marked “both”; (e) whether there was nystagmus onset before 45 degrees, which was marked “both”; (f) whether the suspect would not hold her head still, which was unmarked; and (g) a comment space, which was left blank.

The court characterized the redacted section as a scientific report which should have been produced and ruled the written report inadmissible under OCGA § 17-16-23 (c). Nevertheless it allowed the officers to orally testify to their observations and interpretations of Rayburn’s performance of the test. The court reasoned that Rayburn was fully and properly notified of this oral testimony because the officers had testified similarly in a pretrial hearing in Rayburn’s presence some months earlier and she had received a written transcript of that hearing.

“In all criminal trials the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant . . .” upon defendant’s reasonable written demand. Failure to furnish the report to the defendant at least ten days prior to trial “shall result in such report being excluded and suppressed from evidence in the prosecution’s case-in-chief or in rebuttal.” This excludes not only the written report itself, but also any oral testimony as to the results of the scientific examinations or experiments referenced in the report.

The HGN test is a scientific test. The question then is whether the handwritten notes of the officer in the police report constituted a written scientific report under OCGA § 17-16-23 (a).

The common element of scientific reports is the inclusion of “the examiner’s findings based on scientific analysis or his or her opinion.” Checklists, expert’s notes, work product, recordation of data, internal documents, and graphs do not fall in this definition. Nor do individual test results that do not include any expression of the expert’s conclusions or opinion.

The court correctly found that the HGN test results constituted a scientific report discoverable under OCGA § 17-16-23. The findings as to the lack of smooth pursuit, the distinct nystagmus at maximum deviation, and the nystagmus onset before 45 degrees were not merely data recordation or notes; they were findings based on a scientific analysis of Rayburn’s performance of a recognized test. Oral communication of the results to Rayburn and even the “open file” policy of the prosecutor did not relieve the State of its burden to furnish the written report to Rayburn. The law required exclusion of not only the written report but also the selfsame oral testimony.

Nevertheless, “[t]he burden is upon the defendant[ ] not merely to show error, but to show harmful error. . . .” Rayburn is unable to vault this barrier.

The officers’ testimony of the HGN results was “merely cumulative” of the unimpeached testimony of her intoxication and thus its admission was harmless. The officers testified that (a) Rayburn turned left into a lane for oncoming traffic and drove there for several car lengths, (b) once in a proper lane she slowly drifted toward a neighboring lane and straddled the lanes for some distance, (c) when she exited her vehicle she swayed and was sluggish in her motor skills, (d) she smelled strongly of alcohol and admitted having recently consumed some, (e) she sought to hide her intoxication by placing a nickel in her mouth in the belief it would absorb the smell of alcohol, (f) she spoke with slurred speech and had bloodshot eyes, (g) the alcosensor detected alcohol in her system, (h) she refused to do the heel-to-toe test, started then stopped the one-leg-stand test, and refused to submit to the intoxilyzer breath test to show the blood alcohol level, and (i) an experienced officer gave his opinion, based on observation, that she was intoxicated to the extent it was less safe for her to drive.

“[I]t is evident that the HGN evaluation was only one of a series of observations which caused the officer to form the belief that the appellant was under the influence of alcohol. In the context of the overwhelming evidence of guilt in this case, the admission of the testimony in question must be considered harmless.” Compare Wester v. State and Alexander v. State, where the error was deemed harmful because the erroneously-admitted scientific evidence was the only evidence supporting an essential element of the crime.

3. The State asked jurors during voir dire: “Is there anyone here who believes that we must present a blood alcohol test result in order for you to find the defendant guilty? Is there anyone here who cannot find the defendant guilty without a blood test or a breath test showing her blood alcohol level?” Rayburn objected on the ground the query asked the jurors to prejudge the case. The court sustained the objection as to form and allowed the State to rephrase the question to: “Do any of you believe that the State must present the results of a blood alcohol test before the defendant can be convicted?” A juror responded affirmatively and, after stating she was unsure whether she could set those feelings aside upon the court’s charge, was dismissed for cause.

Decided September 11, 1998

Reconsideration denied September 22, 1998

Jamie S. Wingler, for appellant.

Barry E. Morgan, Solicitor, Lawton W. Scott, Assistant Solicitor, for appellee.

Rayburn contends the question improperly sought prejudgment of the case. OCGA § 15-12-133 allows voir dire questions as to “any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action. . . .” Where the State had no blood alcohol test results to present because of Rayburn’s refusal to take the test, the State could properly uncover whether a juror would close her mind to the evidence of the case upon learning blood alcohol test results were not available. Because such was not a prejudgment of the case, the court did not abuse its discretion in allowing the question.

Nor did the court err in excusing the juror for cause. A potential juror having an opinion so fixed and definite that she is unable to set the opinion aside and decide the case based upon the court’s charge on the evidence, is excusable for cause.

Judgment affirmed.

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

       See Francis v. Franklin, 471 U. S. 307, 317 (105 SC 1965, 85 LE2d 344) (1985); Stepic v. State, 226 Ga. App. 734, 735 (1) (487 SE2d 643) (1997).

        Wyatt v. State, 179 Ga. App. 327, 329 (4) (346 SE2d 387) (1986); Mathews v. State, 176 Ga. App. 394 (3) (336 SE2d 259) (1985).

        Brooks v. State, 187 Ga. App. 194, 195 (1) (369 SE2d 801) (1988).

        Posey v. State, 215 Ga. App. 565, 566 (451 SE2d 463) (1994).

       232 Ga. App. 706 (503 SE2d 599) (1998) (physical precedent).

       OCGA § 17-16-23 (b).

       OCGA § 17-16-23 (c).

        State v. Madigan, 249 Ga. 571, 572-573 (1) (292 SE2d 406) (1982).

        Manley v. State, 206 Ga. App. 281 (424 SE2d 818) (1992).

        Madigan, supra, 249 Ga. at 574, fn. 2; see Durden v. State, 187 Ga. App. 154, 157 (1) (369 SE2d 764), aff’d 258 Ga. 720 (375 SE2d 610) (1988).

        Roberts v. State, 196 Ga. App. 450 (396 SE2d 81) (1990); Durden, supra, 187 Ga. App. at 156-157.

        Roberts, supra, 196 Ga. App. at 451.

        Walls v. State, 169 Ga. App. 80, 82 (1) (311 SE2d 243) (1983); Luck v. State, 163 Ga. App. 657, 658-659 (2) (295 SE2d 584) (1982).

       See Madigan, supra, 249 Ga. at 572-573.

       (Citation omitted; emphasis in original.) Moon v. State, 194 Ga. App. 777, 779 (3) (392 SE2d 19) (1990).

        Odom v. State, 248 Ga. 434, 437 (3) (283 SE2d 885) (1981).

       See OCGA § 40-6-392 (d) (refusal to permit chemical analysis is admissible against defendant); Brooks v. State, 187 Ga. App. 194, 195 (1) (369 SE2d 801) (1988) (“refusal itself may be considered as positive evidence creating an inference that the test would show the . presence of the prohibited substance”) (citations omitted).

        Ross v. State, 192 Ga. App. 850 (1) (386 SE2d 721) (1989). See generally Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976) (no harmful error where it is “ “highly probable that the error did not contribute to the judgment’ ”) (citation omitted).

       260 Ga. 228, 229 (391 SE2d 765) (1990).

       203 Ga. App. 375, 376 (416 SE2d 762) (1992).

       See Shields v. State, 202 Ga. App. 659 (1) (415 SE2d 478) (1992).

       Id. at 659-660 (“the ‘control of the voir dire examination is vested in the sound legal discretion of the trial judge and will not be interfered with by this court unless the record clearly shows an abuse of that discretion’ ”) (citations omitted).

        Johnson v. State, 262 Ga. 652, 653 (2) (424 SE2d 271) (1993).


author: Ruffin, Judge. Pope, Presiding Judge,

text:
    A98A0860.
    MILES v. EMMONS.
    (507 SE2d 762)
   Ruffin, Judge.

William L. Emmons appealed to the Glynn County Superior Court from the Georgia Department of Public Safety’s (“DPS”) cancellation of his Georgia driver’s license. The trial court ordered DPS to return Emmons’ Georgia driver’s license to him. Sidney Miles, the DPS Commissioner, filed an application for discretionary appeal with this Court, which we granted. Because Miles failed to file an enumeration of errors, the appeal must be dismissed.

The Appellate Practice Act, OCGA § 5-6-30 et seq., “shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points therein, except as may be specifically referred to in this article.” OCGA § 5-6-30. The Appellate Practice Act provides that an appellant “shall file with the clerk of the appellate court, at such time as may be prescribed by its rules, an enumeration of the errors which shall set out separately each error relied upon. . . . The appellate court, by rule, may permit the enumeration to be made a part of the brief.” (Emphasis supplied.) OCGA § 5-6-40.

This Court does not permit the enumerations of error to be made part of the brief, but clearly requires a separate filing. Court of Appeals Rules 22 (a) and 26 (a). See also Lewis v. State, 226 Ga. App. 344, 345 (487 SE2d 533) (1997) (Beasley, J., concurring specially). This Court and the Supreme Court of Georgia have made clear that failure to file an enumeration of érrors requires dismissal of an appeal, and that arguments raised in the appellate brief are not made issues on appeal unless they are properly enumerated as error. See Lee v. State, 265 Ga. 112, 116 (8) (454 SE2d 761) (1995); Lowery v. Smith, 225 Ga. 814 (171 SE2d 500) (1969); Lewis, supra; DeKalb County v. Beacon Indus., 187 Ga. App. 370, 373 (3) (370 SE2d 191) (1988).

In this case, Miles failed to file an enumeration of errors, and his appeal is therefore dismissed.

Appeal dismissed.

Pope, P. J., and Beasley, J., concur specially.

Pope, Presiding Judge,

concurring specially.

I agree that this case should be dismissed due to Miles’s failure to file an enumeration of errors. Not only did Miles fail to file a separate enumeration of errors as required by Court of Appeals Rule 22 (a), he also neglected to include an enumeration of errors in his brief as required by Court of Appeals Rule 27 (a) (2). This is not a case, therefore, where a party enumerated errors for the Court in his brief, but simply forgot to file the enumerations as a separate document. No enumerations of error have been identified. While it is preferable that this Court address the merits of cases before it, in this instance where an appellant has ignored the requirements of OCGA § 5-6-40, dismissal is appropriate. Lewis v. State, 226 Ga. App. 344, 345 (487 SE2d 533) (1997) (Beasley, J., concurring specially).

Decided August 19, 1998

Reconsideration denied September 22, 1998.

Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Carol A. Callaway, Neal B. Childers, Senior Assistant Attorneys General, for appellant.

William L. Emmons, pro se.

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


author: Judge Harold R. Banke.

text:
    A98A0869.
    DARNELL v. HOUSTON COUNTY BOARD OF EDUCATION et al.
    (506 SE2d 385)
   Judge Harold R. Banke.

Seeking damages for incidents occurring during and after he officiated a school basketball game, Lowell E. Darnell sued the Houston County Board of Education (“Board”), James Snyder, as Tabor Middle School principal and individually, along with James Money-penny, Robert Davis, and Reginald West. Enumerating three errors, Darnell appeals the summary judgment awarded to the defendants.

The evidence, when viewed most favorably toward Darnell, was as follows. Bird v. Kmart Corp., 229 Ga. App. 630 (494 SE2d 541) (1997). During a middle school boys’ basketball game, after Coach Moneypenny of Tabor Middle School became upset with an officiating call, Darnell gave him a technical foul. Moneypenny then continued to berate Darnell and the other referee claiming they were “blind,” “stunk,” and were “chicken sh — .” According to Darnell, Moneypenny slammed his body into him and bumped into him. Darnell then gave Moneypenny a second technical foul and ejected him from the game. Feeling that he had been unduly threatened, Darnell began inquiring into the process for obtaining an assault warrant against Money-penny.

At the conclusion of the game, Principal Snyder instructed a security officer, Deputy Davis, who was assisted by Officer West, to remove Darnell for security reasons from the gymnasium. According to Snyder, he feared the possibility of trouble triggered by the intense rivalry between the two schools. When Darnell refused to leave and resisted, the officers escorted him out anyway. According to Darnell, he had intended to await the arrival of a police officer to discuss possible criminal charges against Moneypenny and had not completed his post-game officiating duties.

Darnell brought suit against Moneypenny, the Board, Snyder, and the two police officers who escorted him out. Darnell sued Moneypenny for being verbally abusive and for bumping him. He sued Snyder for failing to ensure his safety and for having him forcibly removed. Darnell asserted that the Board, through its agents, Moneypenny and Snyder, failed to ensure his safety and failed to properly instruct its agents and employees. Darnell brought claims for false arrest, use of excessive force, and 42 USC § 1983 against the two officers. Although Darnell asserted that he was “humiliated, embarrassed and traumatized,” he admitted that he never sought any counseling for any mental or emotional complaints, depression, or anxiety. Nor did he seek any other medical attention. Darnell conceded that he was fully compensated for his officiating work. Held:

1. In order to consider Darnell’s contention that material issues of disputed fact precluded summary judgment, we must separately consider his claims against each defendant.

Sovereign immunity extends to the State and all its departments and agencies unless it is waived by a legislative act. Gilbert v. Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994). Thus, the Board, as an entity of the State, in the absence of any applicable exception or statutory waiver, was shielded by sovereign immunity, and Darnell could not proceed against it. Davis v. Dublin City Bd. of Ed., 219 Ga. App. 121, 122 (464 SE2d 251) (1995). See Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995); accord Woodward v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995).

Nor could Darnell prevail against the Board on his claims asserted under 42 USC § 1983 for alleged deprivation of federal rights under color of state law. In order to impose liability under 42 USC § 1983, Darnell had to show a nexus between a policy of the Board and the alleged violation of his federally protected rights. Tillman v. Masten, 216 Ga. App. 3, 4 (453 SE2d 85) (1995). This he failed to do. Darnell offered no evidence that the Board intentionally or deliberately promulgated or tolerated any impermissible policy. Tillman, 216 Ga. App. at 4. See Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (1) (434 SE2d 488) (1993) (party seeking waiver of immunity bears burden of proof).

Further, because Snyder had official immunity in these circumstances, he was entitled to summary judgment. State law imposes a duty upon every principal to exercise control over school buildings and grounds to prohibit the presence of persons who do not have a legitimate need to be on the school premises. OCGA § 20-2-1180. Even assuming for the sake of argument only that Snyder improperly exercised his discretion by having Darnell removed from the gymnasium, he and the Board were entitled to immunity. Hemak v. Houston County School Dist., 220 Ga. App. 110, 114 (469 SE2d 679) (1996).

As to the claims lodged against Davis and West, Darnell failed to offer evidence that their actions were wilful, malicious, or corrupt or undertaken in reckless disregard for his safety. Alford v. Osei-Kwasi, 203 Ga. App. 716, 721 (2) (418 SE2d 79) (1992). The officers did not place Darnell under arrest and Darnell admitted that they did not inflict any injury which necessitated medical attention. Even assuming arguendo that Davis and West acted negligently in the manner in which they escorted Darnell, as law enforcement officials, they were entitled to qualified immunity for discretionary acts performed in a negligent manner. Banks v. Patton, 202 Ga. App. 168, 169 (2) (413 SE2d 744) (1991); Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). See Christensen v. State of Ga., 219 Ga. App. 10, 14 (7) (464 SE2d 14) (1995).

The sole remaining question is whether summary judgment was improvidently granted to Moneypenny. A cause of action for assault and battery can be supported by even minimal touching. Jarrett v. Butts, 190 Ga. App. 703, 705 (4) (379 SE2d 583) (1989). See Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 672 (1) (347 SE2d 619) (1986) (“unlawful touching” includes offensive touching which proceeds from anger or rudeness). OCGA § 51-1-14. The test “ ‘is what would be offensive to an ordinary person not unduly sensitive as to his dignity.’ ” Newsome, 179 Ga. App. at 672, quoting Prosser, Law of Torts, § 9, p. 37 (4th ed. 1971).

Here, although Moneypenny claimed that he did not touch Darnell, West testified that he saw what appeared to be physical contact. Moreover, according to Darnell, as a referee with more than 20 years experience, he had absorbed his share of criticism from coaches and fans, but it was his opinion that Moneypenny’s conduct was abusive and highly improper. In light of the disputed evidence concerning Moneypenny’s remarks and whether Moneypenny intentionally slammed into Darnell and bumped him backwards, a jury must determine whether this conduct constituted wilful or malicious actions falling outside the reach of immunity. Coffee County, 216 Ga. App. at 296. See Teston v. Collins, 217 Ga. App. 829, 830 (1) (459 SE2d 452) (1995) (nature of the lawsuit determines applicability of immunity not defendant’s job title).

2. Darnell’s claim that the trial court erred in entering judgment without first unsealing and considering certain depositions was rendered moot by our holding in Division 1. In any event, Darnell failed to sustain his evidentiary burden of showing harm by providing specific citations to the record. Diffley v. Marshall’s, 227 Ga. App. 343, 345 (489 SE2d 123) (1997) (appellate court will not cull the record in search of error). Court of Appeals Rule 27 (c) (2). To claim “error” without precisely pointing to the harm is not sufficient. Id.

Decided August 18, 1998

Reconsideration denied September 22, 1998

Pamela Richards-Greenway, for appellant.

Daniel, Lawson, Tuggle & Jerles, William R. Jerles, Jr., Chambers, Mabry, McClelland & Brooks, Virginia J. Reed, for appellees.

3. Having determined that four of the five defendants were entitled to judgment as a matter of law and that summary judgment must be reversed as to the remaining defendant, we find that Darnell’s remaining enumeration of error is now moot.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Smith, J., concur.

       Darnell asserted claims for breach of contract and tortious interference with contract against various defendants, contending that a contractual duty to provide him with a safe working environment had been breached. However, on appeal, he failed to support these claims with specific citations to the record.