author: Ray, Judge.

text:
    A15A0146.
    GILLESPIE v. THE STATE. COLLINS v. THE STATE.
    A15A0149.
    (774 S.E.2d 255)
   Ray, Judge.

Larry Daymond “Mon” Gillespie and Legregory Collins, along with other co-defendants, were indicted for armed robbery, aggravated assault, and aggravated battery. Following a jury trial, Gillespie was convicted on August 9, 2011, of armed robbery and aggravated assault. He was acquitted of aggravated battery. Collins was convicted of armed robbery, aggravated assault, and aggravated battery. Both men moved for new trials, and the trial court granted those motions, in part, as to sentencing issues. Collins and Gillespie now appeal from the partial denial of their motions for new trial.

In Case No. A15A0146, Gillespie contends that the trial court erred in allowing the State to introduce evidence of the circumstances of his arrest, in denying his motion for mistrial, and in admitting his booking photograph over objection. He also argues that his constitutional rights were violated because he was not present at bench conferences during jury selection. In Case No. A15A0149, Collins mirrors Gillespie’s enumerations as to the admission of his booking photograph and his absence from bench conferences during voir dire. The two appeals are consolidated for our review. For the reasons that follow, we vacate and remand as to Gillespie in Case No. A15A0146, and we reverse and remand for a new trial as to Collins in Case No. A15A0149.

Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that on February 16, 2010, Athens-Clarke County police were called to the scene of an armed robbery at an apartment where Bryan Baker and Damion Scott James lived. Several friends of Baker’s and James’s also were there. A young woman named Heidi Elrod called Baker to ask if he had any marijuana for sale because her friend, Nikki Hancock, a co-defendant in the case, had contacted her trying to find some. Elrod had previously been on a three-way call with Hancock and another co-defendant, Robert Gresham, who said he also wanted to buy marijuana. She arranged a meet-up at Baker’s apartment. Gresham got a ride from his cousin, and they picked up Collins and Gillespie along the way. Gresham testified that he told Collins that he was planning to steal the marijuana, and Gresham obtained a pistol from another individual. Gillespie had his own gun, which he later gave to Collins.

When they got to the apartment, Elrod, Gresham, and Collins went in and were shown “about a pound and a half of reefer.” Gresham wanted four pounds, so Baker retrieved additional marijuana in plastic bags. Gillespie then entered and sat down at the table to negotiate price, although the plan was still on to steal the drugs. Gresham testified that he and Collins then “pulled our guns out” and ordered the occupants of the apartment onto the ground. Collins was holding Gillespie’s gun when the victims were ordered to the ground. Collins struck Baker across the face with his gun, injuring him.

Gresham testified that he gave his gun to Gillespie, and one of the victims testified that he and the other occupants of the apartment were then held at gunpoint by a man with “twists” in his hair. Another victim testified that a tall black man with “braids” grabbed his guitar and acted as if he would hit him with it. Mug shots of the co-defendants show that only Gillespie had twists or braids in his hair; Collins and Gresham’s photographs show close-cropped hair. The defendants took cash, marijuana, a camera, and a handgun from the apartment.

Surveillance video from the apartment parking lot showed that the car in which the defendants were riding both arrived at and left the apartment complex. Collins’s cousin, who drove the vehicle, testified that she dropped the defendants off so they could “purchas [e] some weed” and waited in her vehicle for them. She later saw them “running” to her vehicle. Collins, Gillespie, and Gresham all got in her car, and they fled the scene. The robbers later divided up the marijuana. Neither Collins nor Gillespie contests the sufficiency of the evidence.

Both Collins and Gillespie argue that the trial court erred because they were not present at bench conferences during jury selection at which several potential jurors were discussed and excused, and one potential juror was questioned and discussed.

It is true that “the constitutional right to be present does not extend to situations where the defendant’s presence would be useless” — for example, during bench conferences dealing with logistical or procedural matters or questions of law about which a defendant presumably has no knowledge. (Citation and punctuation omitted.) Heywood v. State, 292 Ga. 771, 774 (3) (743 SE2d 12) (2013). However, our Supreme Court has unequivocally held that a defendant is entitled to be present during discussions that involve “whether to replace the prospective jurors.” Id. at 774-775 (3), citing Zamora v. State, 291 Ga. 512, 518 (7) (b) (731 SE2d 658) (2012) (holding that the defendant “clearly had a constitutional right to be present during the proceedings at which one of the jurors trying his case was removed”) (citation omitted); and Sammons v. State, 279 Ga. 386, 387 (2) (612 SE2d 785) (2005) (“Proceedings at which the jury composition is selected or changed are a critical stage at which the defendant is entitled to be present”) (footnote omitted).

“Although counsel may waive a defendant’s presence, in order for the waiver of counsel to be binding on the defendant, it must be made in his presence or by his express authority, or be subsequently acquiesced in by him.” (Punctuation and footnote omitted.) Sammons, supra at 387 (2). In this context, a defendant’s presence means that he can “see and hear” the proceedings. Zamora, supra at 518 (7) (b). Any denial of the right to be present under the Georgia Constitution is not subject to harmless error review on appeal and is presumed prejudicial. Peterson v. State, 284 Ga. 275, 279 (663 SE2d 164) (2008).

For reasons of convenience, we will address Case No. A15A0149 first and Case No. A15A0146 second.

Case No. Al SAO 149

1. (a) Collins. At the motion for new trial hearing, Collins’s counsel testified that his client was not present during the bench conferences; he did not believe that he told his client that there was a right to be present; that while “in a general sense” Collins’s counsel was familiar with cases discussing a defendant’s right to be present during jury selection, he had never thought about or researched whether his client had a right to be present and could not recall ever advising a client of the right to be present during bench conferences for jury selection. He also did not recall telling Collins what occurred at the bench conferences.

Collins testified that although he was in the courtroom, he could not hear what was said and that his lawyer did not tell him about his rights in this context or tell him what was discussed. Collins’s counsel testified that he attempted to speak in a voice that could not be heard by others in the courtroom during the bench conferences, and counsel for the State twice mentioned that the lawyers were whispering during the conferences.

The State argues, inter alia, that Collins had no knowledge that would have assisted his trial counsel during the bench conferences, and the trial court’s order on motion for new trial determined:

[T]he [c] ourt does not find that the Defendant himself or through counsel sought to participate, and does not find that counsel failed to inform the Defendant after the bench conferences what had transpired. The [c]ourt also does not find that, had the Defendant participated, he would have had any knowledge, thoughts or input that could have assisted his counsel or his case. Because there is no evidence of any meaningful relationship between the Defendant’s presence or absence at these bench conferences, which focused on essentially legal argument, and the Defendant’s opportunity to defend against the charges against him, the [c]ourt concludes that the motion fails on this ground.

As an initial matter, the above-referenced determination indicates that the trial court disbelieved either Collins or his trial counsel or both. While credibility determinations are, without question, for the trial court, see Finch v. State, 287 Ga. App. 319, 321 (1) (b) (651 SE2d 478) (2007), even in the face of such disbelief there must be some evidence supporting the trial court’s views. Russell v. State, 236 Ga. App. 645, 650 (2) (512 SE2d 913) (1999) (trial court’s findings of fact must be affirmed unless clearly erroneous); Gravitt v. State, 301 Ga. App. 131, 133 (1) (687 SE2d 150) (2009) (clearly erroneous test is the same as any evidence test). The burden rests upon the State to supply evidence of waiver. McKinney v. State, 251 Ga. App. 896, 902 (5) (555 SE2d 468) (2001). The State indicates in its appellate brief that Collins waived his right to be present. However, Collins’s trial counsel testified that he did not believe he told Collins — or had ever told any client — of a right to be present. Collins’s trial counsel stated that he did not recall telling Collins what took place during the bench conferences. Such statements do not suffice as evidence to satisfy the State’s burden. Rather, they show nothing more than counsel’s inability to recall what happened, which amounts to an absence of evidence. No action or statement by Collins himself showed a waiver of his rights. Given that the trial court did not immediately excuse the juror (apparently because it did not want to influence other jurors who might attempt to evade service by also claiming hardship), we fail to see how Collins could have acquiesced in a decision he did not even know was taking place.

Further, as noted above, where a bench conference deals with legal argument about which a defendant has no knowledge, his right to be present is not violated if he is absent from such conferences. Heywood, supra. However, contrary to the trial court’s determination, the record clearly shows that at least one of the bench conferences at issue did not consist of merely legal argument of which Collins would have had no knowledge. Juror Solomon testified at voir dire that if required to serve, he would suffer financial hardship, his lights would be cut off, and he would be very distracted. The trial court made the discretionary decision to excuse him from service for hardship reasons. OCGA § 15-12-1.1; accord Dorillas v. State, 224 Ga. App. 336, 337 (1) (b) (480 SE2d 351) (1997). See also OCGA §§ 15-12-163; 15-12-164 (challenges for cause). In this instance, we cannot say that Collins would have been unable to offer his counsel a meaningful opinion as to whether the juror should be excused. Nor does counsel’s failure to recall whether Collins’s opinion would have been useful alter this determination. Collins’s conviction must be reversed, and he is entitled to a new trial.

(b) Collins also argues that the trial court erred in allowing the admission of his booking photograph, over his objection, because it improperly placed his character at issue. He argues, inter alia, that there was no testimony as to the date on which the booking photograph was taken.

It is well settled that mere admission into evidence of a “mug shot” of the defendant does not indicate that the defendant was guilty of any previous crime and does not place his character in issue. Neither does reference to such a photograph impermissibly place a defendant’s character in issue.

(Footnotes omitted.) Clark v. State, 285 Ga. App. 182, 184-185 (3) (645 SE2d 671) (2007).

When the State sought to admit the booking photographs of Collins and the other defendants, the prosecutor explained outside the presence of the jury that, inter alia, the purpose was to show how the defendants appeared “on the date they were booked into evidence in the Clarke County jail records It is for purposes of identification as to how they appeared close in time to the robbery as we can.”

We disagree with Collins’s contentions that the photograph is prejudicial because it is undated and could indicate a prior arrest. Where, as here,

the jury could not figure out from [the] testimony whether the photograph was related to this offense or a previous arrest [,].. .the booking photograph in no way suggested that [Collins] was guilty of any previous crimes, [and] the trial court did not abuse its discretion in admitting it.

(Footnote omitted.) Clark, supra at 185 (3). See also Mobley v. State, 198 Ga. App. 497, 499 (4) (402 SE2d 100) (1991) (where jury had no way to discern that a mug shot was made during a prior arrest, photo was admissible). Compare Roundtree v. State, 181 Ga. App. 594, 594 (353 SE2d 88) (1987) (photo not admissible where caption revealed that photo was taken on a date prior to the offense in question, thereby indicating a previous arrest of the accused and putting his character in issue).

The State points us to no evidence in the record, nor do we find any, indicating that there was testimony that Collins’s appearance had changed between the time the photograph was taken and the time of the crime. However, because the photograph was undated, “the photograph’s admission did not suggest that [Collins] was guilty of any previous crime or otherwise inflame the jury.” (Citation and punctuation omitted.) Hunter v. State, 273 Ga. App. 52, 53 (1) (614 SE2d 179) (2005). Because, for the reasons outlined in Division 1 (a), we are reversing Collins’s conviction and affording him a new trial, any error in the admission of the photograph was harmless. See id.

Case No. Al SAO 146

2. (a) Gillespie. Gillespie was represented at trial by counsel. At the motion for new trial hearing, Gillespie’s counsel testified that he was “very aware” that his clients have a right to participate in bench conferences, and while he did not recall discussing that right with Gillespie or asking that Gillespie be given headphones so he could listen, Gillespie’s counsel testified that he “typically would tell my client that they have a right to come up[.]” He also did not recall telling Gillespie what happened during bench conferences, but testified that “if I didn’t I would be extremely surprised because, I mean, obviously ... I would tell him just as a matter of course what’s going on.”

Gillespie testified that his counsel never told him his rights as to bench conferences, that he never signed anything waiving his rights, and that he never told his lawyer he did not want to approach the bench. He said if he had known he could go up to the bench, he would have. He also testified both that he did not remember his attorney telling him what happened during bench conferences and that his attorney did not tell him what happened.

First, as discussed in Division 1 (a), not all of the jurors were excused for legal reasons. As a result, contrary to the State’s argument, we cannot say that Gillespie would have had no knowledge or ability to assist his counsel in determining whether to argue that the aforementioned juror should be excused or retained.

The basis of our analysis, however, turns on a different aspect of the trial court’s determination in its order on the motion for new trial. The trial court found

insufficient credible evidence to support that trial counsel failed to inform the Defendant of his right to be present during bench conferences and failed to inform the Defendant of the bench conference discussions about jurors and jury selection immediately after discussions ended. ... In this case, even had trial counsel not informed the Defendant, the Court finds and concludes that there is no evidence that, had the Defendant participated, he would have had any knowledge, thoughts, or input that could have assisted his counsel or his case.

Because the trial court’s order appears to describe only what Gillespie has failed to show, we are unable to discern with certainty whether the trial court is casting the burden of proving waiver on Gillespie or on the State. While Gillespie bears the burden of showing that he was denied the right to be present at bench conferences, see Gosnell v. State, 247 Ga. App. 508, 508-509 (1) (544 SE2d 477) (2001), the State bears the burden of showing that Gillespie waived that right. McKinney, supra at 902 (5). Because the trial court’s order is unclear, we must vacate Gillespie’s conviction and remand the case for the trial judge to reconsider whether the State has met its burden to show waiver.

(b) Gillespie next contends that the trial court erred in admitting his booking photograph, over his objection, because it improperly placed his character at issue. We disagree.

It is well settled that mere admission into evidence of a “mug shot” of the defendant does not indicate that the defendant was guilty of any previous crime and does not place his character in issue. Neither does reference to such a photograph impermissibly place a defendant’s character in issue.

(Footnotes omitted.) Clark, supra at 184-185 (3).

Here, witnesses testified that the perpetrators were black males, and several of the witnesses testified that two of the perpetrators were large and similar in height, and that one had “dreads” or “braids” or “twists” in his hair. A third perpetrator was a smaller or shorter black man. At trial, when the State sought to admit booking photographs of Gillespie and the other two defendants, the prosecutor explained to the court, outside the presence of the jury, that the purpose was to show how they appeared

on the date they were booked into evidence in the Clarke County jail records.... It is for purposes of identification as to how they appeared as close in time to the robbery as we can. . . . Moreover, as the testimony has been, Mr. Gillespie had dreads back then. He does not have dreads in court now, but at the time of his arrest, the photo depicts dreads.

A detective who was on site when Gillespie was arrested was asked to identify Gillespie in the courtroom. The detective did so, describing the outfit Gillespie was wearing. The State then asked, “Does he appear to be the same today as he was when you saw him back on [the arrest date of] February 24th?” To which the detective replied, “No____On that day he had longer hair. His hair was in twists or braids style.”

The photograph was relevant because it was admitted to identify Gillespie, based on the witness testimony as outlined above, and to show how his appearance had changed since his arrest as evidenced by the officer’s testimony. “A determination by the jury of whether or not [Gillespie] met this description thus was crucial to the [S]tate’s proof. The photograph was admissible for that purpose.” (Citation omitted.) Duckworth v. State, 246 Ga. 631, 635 (6) (272 SE2d 332) (1980) (where witnesses testified as to defendant’s appearance, admission of “mugshot” taken at time of arrest was admissible).

Gillespie contends that the photograph was prejudicial because no testimony indicated whether it was taken at the arrest in the instant case or a prior arrest. The photograph in the record before us is undated. As noted above in Division 1 (b), where, as here, the jury would not know from the testimony whether the photograph was from the instant offense or a prior offense, and the photograph did not indicate that Gillespie was guilty of any prior crimes, there was no abuse of discretion in its admission. Clark, supra at 185 (3). See also Mobley, supra. Compare Roundtree, supra.

(c) Gillespie argues that the trial court erred in allowing the State to introduce evidence of the circumstances of his arrest, specifically, that marijuana was located near his person when he was arrested. He contends that the marijuana was not connected to the crimes at issue and that the arrest was too remote in time to be sufficiently related to the offenses charged.

The crimes at issue occurred on February 16,2010. Gillespie was arrested eight or nine days later, on February 24 or 25, 2010, when he was found hiding in a water heater closet at a different location from the scene of the crime. Police found 58.5 grams of marijuana in the closet where he had been hiding. In admitting the marijuana into evidence, over obj ection, the trial court found that the discovery of the marijuana was relevant to the crimes. We agree.

In general, the circumstances connected with a defendant’s arrest are admissible, even if such circumstances incidentally place the defendant’s character in issue. Benford v. State, 272 Ga. 348, 350 (3), n. 2 (528 SE2d 795) (2000). The evidence still must be shown to be relevant, and circumstances connected with a defendant’s arrest are not automatically relevant. Id. at 350 (3).

Rather, such evidence is subject to the same standard of relevancy and materiality applicable to other evidence. Thus, the admission or exclusion of this evidence lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.

(Citation and punctuation omitted.) Id.

As Gillespie points out in his appellate brief, he was charged with theft of money, not marijuana. However, in a case where the defendant was on trial for rape and aggravated sodomy, this Court held that evidence of his possession of a misdemeanor amount of marijuana at the time of his arrest was admissible. Burdette v. State, 197 Ga. App. 881, 882 (3) (399 SE2d 745) (1990). “The mere fact that the evidence may have incidentally implicated defendant in the commission of an unrelated crime does not render the evidence inadmissible.” (Citation omitted.) Id.

Here, while the marijuana was not found on Gillespie’s person, but rather in the small closet where he was hiding, the marijuana bore a logical relation to his arrest in that the crimes at issue arose out of a plan to steal marijuana by first pretending to want to buy it from an unwitting seller. Hanes v. State, 294 Ga. 521, 522 (1), 524 (3) (755 SE2d 151) (2014) (ammunition and pistol similar to murder weapon that were “found within [defendant’s] reach” at time of arrest were admissible); Roker v. State, 262 Ga. 220, 221 (1), n. 2, 222 (6) (416 SE2d 281) (1992) (in shooting crime involving an unidentified .45 caliber pistol and a Glock 9mm pistol, evidence that an automatic weapon, not identified by the Court as one involved in the crime, was found near closet where defendant was hiding was admissible as a circumstance of arrest). Further, there was testimony that “a pound” of marijuana was stolen and divided between the robbers, including Gillespie. Marijuana played a role in the events leading to the crimes, and the evidence in the instant case was relevant. Benford, supra (finding no error in admission of testimony that crack cocaine was found in defendant’s possession at time of arrest where crack cocaine played a role in the events leading up to a murder and where the jury could draw a reasonable inference that defendant’s motive in murdering the victim was to obtain the victim’s drugs or money to purchase the drugs from others).

Further, the lapse of eight or nine days between the crime and Gillespie’s arrest with the marijuana nearby does not render the incident so remote in time that admissibility is barred. Manuel v. State, 315 Ga. App. 632, 633 (1) (727 SE2d 246) (2012) (gun which was not used in the crime and was in defendant’s possession during arrest 19 days after shooting was not too remote in time to be admissible); Nealy v. State, 246 Ga. App. 752, 752-753 (1) (542 SE2d 521) (2000) (admission of bulletproof vest worn by defendant at time of arrest, where crime involved a shootout 26 days earlier, not too remote in time).

Finally, even if the trial court’s action could be deemed erroneous, any error was harmless given the overwhelming evidence of Gillespie’s guilt. Benford, supra at 350 (3).

(d) Gillespie contends that the trial court erred in denying his motion for a mistrial after the State introduced a videotaped statement in which Gresham, a co-defendant who pled guilty, told a police officer that Gillespie sold “weed.” The trial court denied the motion for mistrial, but gave a limiting instruction to the jury.

During the taped interview, Gresham told the police officer that he was setting up a ride to go get marijuana. Gillespie, who is also known as “Mon,” was with him. “Mon, he sell weed, too. Usually Mon have weed,” Gresham told the officer, explaining that when he asked Gillespie, “Do you want some more weed?” Gillespie “was like, “Yeah, I need to get me some, too.’ ” At trial, Gillespie’s counsel agreed that the portion of the videotape in which Gresham states that Gillespie said he also wanted marijuana was admissible, but took issue with the statement that his client sold marijuana.

Under OCGA § 24-2-2, which was in effect at the time of Gillespie’s trial, “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” The admission or exclusion of such evidence is within the trial court’s sound discretion, which we will not disturb absent clear abuse. Benford, supra at 350 (3).

Decided July 16, 2015 —

Reconsideration denied July 30, 2015 —

Jessica I. Benjamin, John W. Donnelly, for appellant (case no. A15A0146).

Michael N. Brooks, for appellant (case no. A15A0149).

Kenneth W. Mauldin, District Attorney, Jon R. Forwood, Assistant District Attorney, for appellee.

Our Supreme Court has determined that even if motive is not essential to proving the crimes charged,

the State is entitled to present evidence to establish that there was a motive, and evidence that [Gillespie at times sold or possessed drugs] is relevant to prove that he had a motive for committing the crimes and is not rendered inadmissible by the fact that it incidentally puts his character in issue.

(Citations omitted.) Thornton v. State, 292 Ga. 87, 88-89 (3) (734 SE2d 393) (2012). Here, evidence that Gillespie used and sold marijuana was properly admitted, “given the role that drugs ... played in the events leading up to the crimes and the reasonable inference that the jury could have drawn from the evidence that [Gillespie’s] motive in [robbing] the victims was to obtain . . . drugs or [their] money[.]” Bryant v. State, 288 Ga. 876, 889 (10) (a) (708 SE2d 362) (2011) (evidence that defendant used and dealt drugs properly admitted to show his motive to murder victims in order to obtain drugs or money for a drug transaction). We find no error.

Judgment vacated and case remanded in Case No. A15A0146. Judgment reversed and case remanded in Case No. A15A0149.

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

       At the hearing on motion for new trial, Collins’s counsel testified that he could not recall whether his client had any “personal knowledge” that he would have sought to elicit which could have been helpful during voir dire.

       See generally Keller v. State, 231 Ga. App. 546, 548 (4) (499 SE2d 713) (1998) (“The cases we have found requiring reversal involve clear indications of arrests before the charged offenses occurred, and usually contain more definite references to other crimes”) (citation omitted).

       As we discuss in Division 2 (b) of this opinion, however, there is testimony that co-defendant Gillespie’s appearance had changed; thus, the admission of Collins and Gillespie’s booking photographs at trial was relevant to allow the jury to identify the perpetrators of the robbery and distinguish between them based upon the witnesses’ physical description of them at the time of the crime.

       The record contains conflicting information as to Gillespie’s date of arrest. Police involved in the arrest testified that it occurred on February 24, 2010, but the arrest/booking report and affidavit for arrest are dated February 25, 2010.

       OCGA § 24-2-2 was repealed by Ga. L. 2011, p. 99, § 2, effective January 1, 2013, when Georgia’s new Evidence Code went into effect.


source: Caselaw Access Project

author: Ellington, Presiding Judge. MCFADDEN, Judge, DlLLAED, Judge,

license: Public Domain

text:
    A15A0223.
    FUCIARELLI v. McKINNEY et al.
    (773 S.E.2d 852)
   Ellington, Presiding Judge.

The Superior Court of Fulton County dismissed claims brought by Alfred Fuciarelli under the Georgia Taxpayer Protection Against False Claims Act (“the TPAFCA”), OCGA § 23-3-120 et seq., on the ground that Fuciarelli lacked the required written approval of the Attorney General of the State of Georgia prior to bringing the claims, citing OCGA § 23-3-122 (b) (1). Pursuant to a granted application for interlocutory appeal, Fuciarelli argues that the trial court erred in finding that his claims required the Attorney General’s approval. For the reasons that follow, we affirm the judgment in part and reverse in part.

“We review a trial court’s ruling on a motion to dismiss de novo, viewing all allegations in the complaint as true. Thus, we owe no deference to a trial court’s ruling on questions of law and review such issues de novo under the ‘plain legal error’ standard of review.” (Citations and punctuation omitted.) Laskar v. Bd. of Regents of the Univ. System of Ga., 320 Ga. App. 414 (740 SE2d 179) (2013). So viewed, the relevant facts are as follows.

Fuciarelli is employed by the Board of Regents of the University System of Georgia as a tenured faculty member at Valdosta State University (“VSU”). As he admits in his brief, he is a public employee. He served as an assistant vice president for research and as dean of the graduate school. In his roles as vice president and dean, Fuciarelli recommended that VSU implement an electronic research administration system to better manage its grants and research programs and their funding sources. Although VSU initially approved the system, it removed Fuciarelli as the system’s budget manager and it later declined to fund the system. Fuciarelli complained to the administration about VSU’s “noncompliance with laws, rules, and regulations,” he expressed concerns that VSU’s lack of research administration tools exposed VSU to liability, and he complained about his exclusion from certain internal audits. Ultimately, VSU terminated Fuciarelli’s contract as assistant vice president and dean, which ended his administrative duties. He remained a tenured faculty member, but his salary and benefits were reduced. Fuciarelli appealed VSU’s decision to terminate his administrative duties to the Board of Regents, but the Board affirmed VSU’s decision.

On July 11, 2013, after exhausting his administrative remedies, Fuciarelli filed a complaint asserting causes of action against these defendants: the Board of Regents, including its unit institution VSU; William McKinney, in his individual capacity and in his official capacity as president of VSU; and Karla Hull, in her individual capacity and in her official capacity as the former acting vice president for academic affairs at VSU. Against each defendant, Fuciarelli asserted a claim for “False Claims Whistleblower Retaliation” under the TPAFCA, citing OCGA § 23-3-122; and a claim for “Public Employee Whistleblower Retaliation,” citing OCGA § 45-1-4.

The defendants moved to dismiss Fuciarelli’s TPAFCA claims, asserting, in pertinent part, that claims against McKinney and Hull in their official capacities and the Board of Regents are barred by sovereign immunity and that McKinney and Hull are not proper defendants to those claims in their individual capacities. After the parties had briefed these issues, the trial court issued an order directing the parties “to submit supplemental briefs on whether Fuciarelli must obtain written approval from the Attorney General [prior to bringing claims under the TPAFCA] as required by OCGA § 23-3-122 (b) (1).” Fuciarelli does not contend that he obtained the Attorney General’s approval before filing his claims, and the record contains no evidence that he sought or was given that approval prior to filing the instant lawsuit.

On December 9,2013, the trial court ruled, in pertinent part, that Fuciarelli’s claims pursuant to OCGA § 23-3-122 (1) are barred by his failure to obtain written approval from the Attorney General. The trial court denied the defendants’ motion to dismiss Fuciarelli’s remaining claims brought pursuant to OCGA § 45-1-4, which prohibits retaliation against a public employee who discloses noncompliance with state law. On appeal, Fuciarelli contends that the trial court erred in dismissing his TPAFCA claim on the basis that he lacked Attorney General approval, arguing that “a retaliation civil action belongs exclusively to the party bringing the claim and does not require Attorney General approval.”

1. Pretermitting whether there is any merit to Fuciarelli’s argument with respect to the Board of Regents, VSU, and Hull and McKinney in their official capacities, the trial court nevertheless properly dismissed the OCGA § 23-3-122(1) retaliation claims against these governmental defendants. As the defendants argued below in their original brief supporting their motion to dismiss in the trial court, the General Assembly did not intend for the state or any of its political subdivisions to be subject to retaliation claims brought pursuant to the TPAFCA. Nothing in the TPAFCA expressly or impliedly waives the government’s immunity from suit. Consequently, we must affirm the trial court’s order with respect to these defendants under the “right for any reason” rule.

“Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability, and, therefore, whether a governmental defendant has waived its sovereign immunity is a threshold issue.” (Citations omitted.) McCobb v. Clayton County, 309 Ga. App. 217, 217-218 (1) (a) (710 SE2d 207) (2011). Except as otherwise provided in the Georgia Constitution, “[t]he sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. 1983, Art. I, Sec. II, Par. IX (e). See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 597-598 (2) (755 SE2d 184) (2014). “In this regard, implied waivers of governmental immunity should not be favored.” (Citation and punctuation omitted.) Colon v. Fulton County, 294 Ga. 93, 95 (1) (751 SE2d 307) (2013). The state’s sovereign immunity extends to the Board of Regents. Wilson v. Bd. of Regents of the Univ. System of Ga., 262 Ga. 413, 414 (3) (419 SE2d 916) (1992). And “[s]uits against public employees in their official capacities are in reality suits against the state and, therefore, involve sovereign immunity.” (Punctuation and footnote omitted.) Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001). “The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver[.]” (Citation omitted.) Bonner v. Peterson, 301 Ga. App. 443 (687 SE2d 676) (2009). Fuciarelli cannot meet that burden.

The TPAFCA does not expressly provide that it waives the state’s sovereign immunity. Moreover, it does not set forth circumstances demonstrating an implied waiver of sovereign immunity. The TPAFCA does not create a cause of action against the state nor does it provide that an aggrieved party may collect money damages from the state. See Colon v. Fulton County, 294 Ga. at 95-96 (l). In fact, the thrust of the TPAFCA is to authorize the State of Georgia, through the Attorney General or a designee, to bring civil actions to recoup losses that the state or a local government has suffered as a result of false claims presented to the state or a local government by others. For example, OCGA § 23-3-121 (a) sets forth a scheme by which those who present false or fraudulent claims for public funds as defined by the TPAFCA “shall be liable to the State of Georgia for a civil penalty of not less than $5,500.00 and not more than $11,000.00 for each false or fraudulent claim, plus three times the amount of damages which the state or local government sustains because of the act of such person.” (Emphasis supplied.) To the extent that a private person may also bring such a claim, the TPAFCA expressly provides that such a claim shall be in the government’s name and with the government’s approval. Moreover, under certain circumstances, the government has the right to intervene in the litigation, including the right to settle or dismiss the suit without the private person’s consent. OCGA § 23-3-122 (c). Aprivate person’s qui tarn recovery in such a civil action is limited to a percentage of the proceeds paid to the government. OCGA § 23-3-122 (h). And the “state or local government shall not be liable for expenses which a private person incurs in bringing a civil action under [the TPAFCA].” OCGA § 23-3-122 (k).

Considered within this context, we conclude that OCGA § 23-3-122 (1) (1) does not create a retaliation cause of action against the government such that sovereign immunity is waived. That Code section provides, in pertinent part:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of a civil action under this Code section or other efforts to stop one or more violations of [the TPAFCA].

OCGA § 23-3-122 (1) (1) (emphasis supplied). This Code section clarifies that, in addition to any qui tarn recovery, a whistleblower is also entitled to all the relief necessary to be made whole from the entity that retaliated against him or her. In the context of the TPAFCA, that entity is not the governmental entity, but, rather, the “person, firm, corporation, or other legal entity” responsible for submitting the false claim to “the state or local government.” See OCGA § 23-3-120 (1) (defining a claim); OCGA § 23-3-121 (defining those who may be liable for submitting a false claim). Construing OCGA § 23-3-122 (1) (1) to allow a retaliation claim against the government would be contrary to the law enforcement purpose of the statute, which is to recoup public funds. For these reasons, we hold that the General Assembly did not waive the state’s sovereign immunity when it enacted the TPAFCA. Consequently, the trial court did not err in dismissing Fuciarelli’s retaliation claim made pursuant to OCGA § 23-3-122 (1) (1) against the governmental defendants.

2. The trial court, however, erred in dismissing Fuciarelli’s OCGA § 23-3-122(1) retaliation claims against Hull and McKinney in their individual capacities on the ground that Fuciarelli failed to obtain Attorney General approval prior to filing his suit alleging retaliation claims under the TPAFCA. Attorney General approval is not required for retaliation claims, which are personal to the plaintiff.

The TPAFCA provides: “Subject to the exclusions set forth in [OCGA § 23-3-122], a civil action under this article may also be brought by a private person upon written approval by the Attorney General.” OCGA § 23-3-122 (b) (1) (emphasis supplied). The use of the word “article” in this context was intended to embrace civil actions brought in the name of government; applying it to retaliation claims was not intended and would lead to absurd results.

In construing a statute, our goal is to determine its legislative purpose. In this regard, a court must first focus on the statute’s text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remembering at all times that the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes. If the words of a statute, however, are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words. If, on the other hand, the words of the statute are ambiguous, then this Court must construe the statute, keeping in mind the purpose of the statute and “the old law, the evil, and the remedy.” OCGA § 1-3-1 (a).

(Punctuation and emphasis omitted.) Rite-Aid Corp. v. Davis, 280 Ga. App. 522, 524 (1) (634 SE2d 480) (2006).

In the context of OCGA § 23-3-122 (b) (1), the “civil action” referenced is an action brought “in the name of the State of Georgia or local government[.]” Id. This Code section provides that, with Attorney General approval, a private person “may also” bring such a claim. Thus, the subsection is itself an exception to the general rule that only governments may prosecute TPAFCA claims. The subsection is intended to apply the prerequisite of Attorney General approval to any action under the TPAFCA that a private person brings in the name of the government for the benefit of the government. Retaliation claims, however, are personal to the plaintiff and are meant to afford proper plaintiffs with all relief necessary to make them whole. Because Fuciarelli was not required to obtain the Attorney General’s approval prior to filing his TPAFCA retaliation action, the trial court erred in dismissing Fuciarelli’s claims against Hull and McKinney in their individual capacities.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Phipps, P. J., concur. McFadden, J., concurs fully in Division 1 and concurs fully and specially in Division 2. Dillard, Ray and McMillian, JJ., concur fully in Division 1 and dissent in Division 2.

MCFADDEN, Judge,

concurring fully.

I concur fully in the majority opinion. I write separately as to Division 2 to emphasize that the majority’s construction of OCGA § 23-3-122 (1) is faithful to the text of the statute. As the majority correctly holds, subsection (1) creates a cause of action that is personal to the plaintiff, distinct from the cause of action addressed in the rest of OCGA § 23-3-122, and not subject to the notice requirement of OCGA § 23-3-122 (b).

The dissent implies that we are simply presented with a syllogism that “could not be more clear” and merely leads to an unpalatable result. But contrary to the dissent, the question before us is whether there is a controlling distinction between actions under subsection (1) of OCGA § 23-3-122 — which are personal to the plaintiff- — ■ and other civil actions under that Code section as a whole — which are on behalf of the state. The text of the statute does draw such a distinction, and it is controlling. OCGA § 23-3-122 (1) is distinct from the rest of OCGA § 23-3-122 and is likewise distinct from the rest of the article of which that statute is a part.

That article, Title 23, Chapter 3, Article 6, deals with false or fraudulent claims made against state and local governments. See OCGA § 23-3-120 (1) (defining “Claim”). That statute, OCGA § 23-3-122, addresses the procedures for bringing civil actions under Article 6. As the Solicitor-General explained at oral argument, “The purpose of th[at] statute is to recover state moneys.”

But OCGA § 23-3-122 (1), the final subsection of a lengthy statute, addresses a distinct type of action. The subsection refers repeatedly to an “action under this subsection” and sets out rules related to such actions, distinguishing them from an “action under this Code section,” as a whole.

It is significant that the text of subsection (1) distinguishes “an action under this subsection” from “a civil action under this Code section.” As Justice Scalia and Professor Garner note, “where the document has used one term in one place, and a materially different term in another, the presumption is that the different term denotes a different idea.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170 (Presumption of Consistent Usage) (1st ed. 2012). And subsection (1) explains the relationship between these two different ideas. A cause of action under subsection (1) arises when a person suffers retaliation as a consequence of “lawful acts done ... in furtherance of a civil action under this Code section” as a whole. OCGA § 23-3-122 (1) (1).

It is true that OCGA § 23-3-122 also uses the phrase “civil action under this article.” OCGA § 23-3-122 (a), (b) (emphasis supplied). But the point of that usage is that the civil actions authorized in subsections (a) and (b) are for the purpose of vindicating the government interests addressed throughout the article. Consequently the subsequent references throughout the statute to “action [s] under this Code section” refer to the same type of actions. As the majority notes, there is no other sensible reading.

This analysis is reinforced by the rule that Scalia and Garner call the Scope-of-Subparts Canon, which provides, “material contained in unindented text relates to all the following or preceding indented subparts.” Scalia & Garner, supra, at 156. Neither subsection (b), which contains the notice requirement, nor subsection (1) is indented. They are of equal rank in the statutory structure.

DlLLAED, Judge,

concurring in part and dissenting in part.

Although I fully concur in the majority’s opinion as to Division 1 that OCGA § 23-3-120 et seq. does not waive the state’s sovereign immunity, I do not agree with the majority’s holding in Division 2. To the contrary, the plain language of OCGA § 23-3-122 (b) (1) unequivocally requires written approval of the Attorney General to bring a retaliation claim under OCGA § 23-3-122 (1). Thus, I respectfully dissent as to this division of the majority opinion.

In interpreting any statute, we necessarily begin our analysis with familiar and binding canons of construction. And in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” Thus, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,”* and seek to “avoid a construction that makes some language mere surplusage.” Importantly, when the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must “construe the statute accordingly.”

Here, the plain meaning of OCGA § 23-3-122 (b) (1) could not be more clear. Prior to bringing a civil action under Article 6 (Taxpayer Protection Against False Claims) of Chapter 3 (Equitable Remedies and Proceedings Generally) to Title 23 (Equity) of the Official Code of Georgia, a private person must obtain written approval from the Attorney General:

Subject to the exclusions set forth in this Code section, a civil action under this article may also be brought by a private person upon written approval by the Attorney General. A civil action shall be brought in the name of the State of Georgia or local government, as applicable. The civil action may be dismissed only if the Attorney General gives written consent to the dismissal stating the reasons for consenting to such dismissal and the court enters an order approving the dismissal.

And in the case sub judice, Fuciarelli did not obtain written approval from the Attorney General before bringing his claim under OCGA § 23-3-122 (l) and, accordingly, the trial court properly dismissed his action.

Decided July 16, 2015 —

Reconsideration denied July 30, 2015 —

Hornsby Law Group, D. Brandon Hornsby, Graham R. Scofield, for appellant.

Samuel S. Olens, Attorney General, Annette M. Cowart, Christopher A. McGraw, Senior Assistant Attorneys General, for appellees.

Judge McFadden gamely attempts to rehabilitate Division 2 of the majority opinion, but these efforts are no more convincing than the majority’s refashioning of the statute. The plain meaning of OCGA § 23-3-122 (b) (1) makes it abundantly clear that the requirement imposed on “a private person” to obtain “written approval by the Attorney General” prior to initiating a “civil action under this article” means exactly what it says, that this statutory requirement applies to the entirety of the statutory article (i.e., Title 23, Chapter 3, Article 6). Try as he might, there is simply no textual justification for Judge McFadden’s assertion that “OCGA § 23-3-122 (1) is . . . distinct from the rest of the article of which that statute is a part,” when OCGA § 23-3-122 (b) (1) explicitly states the exact opposite.

Thus, while I fully concur with the majority in Division 1, I respectfully dissent from Division 2 because, for all of the foregoing reasons, the trial court properly granted the defendants’ motion to dismiss.

I am authorized to state that Judge Ray and Judge McMillian join in this opinion concurring in part and dissenting in part.

       VSU is not a separate or distinct legal entity from the Board of Regents and, therefore, cannot be sued. See McCafferty v. Medical College of Ga., 249 Ga. 62, 65 (1) (287 SE2d 171) (1982), and Bd. of Regents of the Univ. System of Ga. v. Doe, 278 Ga. App. 878, n. 1 (630 SE2d 85) (2006) (both holding that the power to sue and be sued is vested in the Board of Regents, not in individual member institutions).

       The gist of Fuciarelli’s complaint appears to be that VSU, in declining to implement Fuciarelli’s research management tools, had misused or was at risk of “misusing government funds in many of its sponsored [research] programs,” and that when Fuciarelli complained to the administration about those matters, the administration retaliated by demoting him. It is unclear from the complaint whether a false claim was submitted to the State of Georgia. However, it is clear that Fuciarelli is not pursuing a qui tarn action based upon a specific false claim. In a qui tarn action, a private individual participates in a prosecution or a civil action on behalf of or for the benefit of a government and may receive all or part of any penalty imposed against the offending party. See, e.g., Stalley v. Orlando Regional Healthcare System, 524 F3d 1229, 1233 (II) (11th Cir. Fla. 2008) (“ ‘Qui tarn’ is an abbreviation for qui tam pro domino rege quam pro seipso, which means ‘he who as much for the king as for himself.’ ”) (citation and punctuation omitted; emphasis in original).

       Georgia appellate courts may apply the “right for any reason” rule when reviewing de novo certain judgments. See City of Gainesville v. Dodd, 275 Ga. 834, 835 (573 SE2d 369) (2002) (“Under the ‘right for any reason’ rule, an appellate court will affirm a judgment if it is correct for any reason, even if that reason is different than the reason upon which the trial court relied.”) (citation omitted). See also Craigo v. Azizi, 301 Ga. App. 181, 187 (3) (687 SE2d 198) (2009) (dismissal of complaint affirmed under right for any reason rule). A summary judgment “must he affirmed if it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.” Anderson v. Jones, 323 Ga. App. 311, 312, n. 2 (745 SE2d 787) (2013). Because the issue of sovereign immunity was presented in defendant’s motion to dismiss and because Fueiarelli had an opportunity to respond, the application of the “right for any reason” rule is appropriate. See Abellera v. Williamson, 274 Ga. 324, 326 (2) (553 SE2d 806) (2001).

       By comparison, the Supreme Court of Georgia concluded that the General Assembly, in enacting OCGA § 45-1-4, which authorizes certain retaliation claims against public employees, waived sovereign immunity. The court reasoned:
      [W]here, as here, the Legislature has specifically created a right of action against the government that would otherwise be barred by sovereign immunity, and has further expressly stated that an aggrieved party is entitled to collect money damages from the government in connection with a successful claim under the statute, there can be no doubt that the Legislature intended for sovereign immunity to be waived with respect to the specific claim authorized under the statute.

        Colon v. Fulton County, 294 Ga. at 95-96 (1).

       OCGA § 23-3-122 (b) (1) provides, in relevant part:
      Subject to the exclusions set forth in this Code section, a civil action under [the TPAFCA] may also be brought by a private person upon written approval by the Attorney General. A civil action shall he brought in the name of the State of Georgia or local government, as applicable. . . .

       See also OCGA § 23-3-124, pertaining to venue of TPAFCA civil actions. Defendants are described as those having submitted “a false or fraudulent claim to the state or local government.” (Emphasis supplied.)

       See, e.g., OCGA §§ 23-3-122 (b) (6) (“To effectuate the law enforcement purposes of [the TPAFCA] in combating fraud and false claims directed at the public’s funds, it is the public policy of this state that private persons be authorized to take actions to provide to the Attorney General or local government such information and evidence.”); 23-3-126 (b) (The TPAFCA “shall be broadly construed and applied to promote the public’s interest in combating fraud and false claims directed at the public’s funds.”).

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (punctuation omitted); see Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013) (same).

        See Deal, 294 Ga. at 172 (1) (a) (“To that end, we must afford the statutory text its plain and ordinary meaning.” (punctuation omitted)); State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies)....”); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 16 (1st ed. 2012) (“Textual-ism, in its purest form, begins and ends with what the text says and fairly implies.”).

        See Arizona v. Inter Tribal Council of Arizona, Inc.,_U. S._,_(II) (B) (133 SCt 2247, 186 LE2d 239) (2013) (“Words that can have more than one meaning are given content, however, by their surroundings.” (punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”); see also OCGÁ § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words____”); Scalia & Garner, supra note 2, at 167 (“Context is a primary determinant of meaning.”).

        Deal, 294 Ga. at 172-73 (1) (a); accord Martinez, 325 Ga. App. at 273.

        In the Interest of L. T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014) (punctuation omitted); accord Holcomb v. Long, 329 Ga. App. 515, 518 (1) (765 SE2d 687) (2014); see also Scalia & Garner, supra note 2, at 174 (“The surplusage canon holds that it is no more the court’s function to revise hy subtraction than by addition.”).

        Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013) (punctuation omitted); accord Chase v. State, 285 Ga. 693, 695 (2) (681 SE2d 116) (2009); Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

       OCGA § 23-3-122 (b) (1) (emphasis supplied). Cf. 31 USC § 3730 (b) (1) (providing that under the federal False Claims Act, private persons may bring a civil action, but only requiring written approval from the Attorney General prior to dismissal for any such action, not prior to initiation).

        See OCGA § 23-3-122 (1) (1) (“Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of a civil action under this Code section or other efforts to stop one or more violations of this article.”).


text:
    A15A0297.
    STEPHENS et al. v. ZIMMERMAN.
    (774 S.E.2d 811)
   Ray, Judge.

Joshua Zimmerman sued the mayor and the aldermen of the City of Savannah (the “City”) and Samantha Stephens, a police officer/ detective trainee with the Savannah-Chatham Metropolitan Police Department, raising State law claims of false imprisonment, false arrest, and malicious prosecution. He amended his complaint to allege a violation of 42 USC § 1983. These claims arise from Zimmerman’s contention that he was wrongfully arrested and prosecuted for crimes related to an incident of vandalism to vehicles in a downtown Savannah parking garage. The trial court granted in part and denied in part the City and Stephens’s motions for summary judgment as to their respective immunities. The City and Stephens appealed. For the reasons that follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Punctuation and footnotes omitted.) Taylor v. Campbell, 320 Ga. App. 362, 362 (739 SE2d 801) (2013).

In brief, the underlying basis for Zimmerman’s claims is that some witnesses told police that one of several perpetrators was a black male. Zimmerman is white. He argues, inter alia, that he was wrongfully arrested and prosecuted because Stephens failed to perform an adequate investigation, ignored facts, and testified falsely. The City and Stephens counter that, under the applicable legal standard, Stephens had probable cause to arrest Zimmerman and that there is no evidence of actual malice triggering a waiver of their respective sovereign and official immunities.

Viewed most favorably to Zimmerman as the nonmoving party, the record reveals that some, but not all, of the witnesses to the crimes at issue identified the suspects as two white males, a Hispanic male, and a black male. Other witnesses only mentioned three suspects, none of whom was black. Three suspects, Michael Martin, Remijio Botello, and Seth Stratton eventually tendered guilty pleas. Martin and Stratton are white; Botello is Hispanic.

The record shows that at approximately 2:20 a.m. on June 25, 2011, a group of men damaged five vehicles and a motorcycle in a Savannah parking garage. Officer Amir Delic with the SavannahChatham Metropolitan Police Department completed a police report on the damage and possible suspects, and handled initial witness interviews. Stephens then began investigating the case.

Delic and Stephens both filed reports. Delie’s report states that eyewitness Matthew Socienski saw four men — two white men, one Hispanic man, and one black man — damaging multiple vehicles in the garage. Socienski saw the men leave the scene in a gray Chevrolet Trailblazer with Georgia license tag number BIG 2415. Stephens did not interview Socienski.

Delie’s report states that eyewitness Megan Neary, whose car was damaged, told him that she saw three men — two white men and a Hispanic man — damaging vehicles, and that they left the scene in a dark gray sport utility vehicle with the license plate BIG 2415. By contrast, Stephens’s report says Neary saw four men get on a garage elevator, then she heard smashing noises. Neary went to another floor to look for her car, saw two men damaging a vehicle and a third in the driver’s seat of a Trailblazer with the BIG 2415 tag. Stephens’s report says Neary stated that “all three subjects who were damaging the vehicle” (emphasis supplied) then got into the Trailblazer. She described the driver as white and one passenger as Latino, but could not describe the person who got in the back seat.

Delie’s report states that Christina Birchfield, the garage attendant, saw a dark sport utility vehicle leaving the garage around the time of the incident. She mentioned three men — the driver, who was white; and two passengers, one white and one Hispanic. Stephens’s report indicates that Birchfield described the men as “army guys” with whom she was familiar, and that she had seen one of the suspects who later pled guilty, Martin, arguing with people in another vehicle. Stephens’s report does not mention the ethnicity or the number of men Birchfield observed.

Delie’s report indicates that he was then advised to contact Sean Young, who owned the motorcycle that had been damaged during the incident. Young was not an eyewitness. Young told Delic that he spoke with the parking attendant, Birchfield, and based on that discussion believed he knew the perpetrators. Young was a bouncer at a local club and said he saw the suspects most weekends. He identified them as Martin, Botello, and Stratton — the men who eventually pled guilty. He also said he saw a black man with them at the club, but did not know that man’s name. Stephens’s report states that Young told her the men had been in the club that night, had left together, and that “they had gotten drunk before and had done stupid stuff like that.” Young also said he had called one of the men, Martin, who denied involvement but admitted that his tag number was BIG 2415. Young described Martin as a white male with tattoo “sleeves,” Stratton as a “possibly white Latino male,” Botello as a Latino male, and the fourth suspect as “black.”

Stephens also interviewed the four suspects. Stratton denied damaging any vehicles, but acknowledged that he was out with Martin, “Ray” Botello and “Josh” Zimmerman on the night in question.

Martin told Stephens that although he was at the garage, he was intoxicated and did not remember seeing his friends damage anything. He said he was with Stratton and “Josh Zimmerman,” whom he believed lived together, and that he was also with “a Mexican kid named Ray.”

Botello told Stephens that he had been with Martin, and with “Seth” and “Josh” whose last names he did not know. He said he knew about the damage but could not remember well enough to know if he was involved. He later admitted that he and the men he was with “kinda went crazy in the garage,” that he smashed a windshield, that “Josh” and “Seth” pushed over a motorcycle and that the three of them were “running around destroying stuff,” but that Martin did not do anything. Stephens’s report does not indicate that Botello said anything about the ethnicity of the men he was with.

Using social media and other resources, Stephens found and interviewed Zimmerman, who said he was not in downtown Savannah on the night in question. He said his roommate could vouch for his being at home. He denied knowing suspects Martin, Stratton, and Botello, or the victim Young, and said he had never been to the club where Young worked.

According to Stephens’s report, Zimmerman later called her to say that he did know Stratton because Stratton had been in a fight with his roommate, that he’d seen Stratton the day he got a tattoo, and that Stratton was framing him because of the fight with Zimmerman’s roommate. In his deposition, however, Zimmerman stated that he looked up Stratton and Martin on Facebook and recognized them from the tattoo parlor. However, he said he never told Stephens he knew Stratton from an altercation with his roommate, but rather that he told her his roommate had a prior altercation with the tattoo artist.

Stephens obtained warrants for the suspects’ arrest, after consulting with her superior. Only after Zimmerman was arrested did Stephens contact Zimmerman’s roommate, who confirmed his alibi.

1. The City and Stephens argue generally that the trial court should have found Zimmerman’s claims barred by sovereign immunity as to the City and official immunity as to Stephens. We agree.

(a) Applicable cause of action.

The trial court granted summary judgment to Stephens and the City on Zimmerman’s claim of false imprisonment, leaving, as to his State law claims, only the issues of false arrest and malicious prosecution. Our case law distinguishes between these remaining torts: “false or malicious arrest, which is detention ‘under process of law’ (OCGA § 51-7-1); and ... malicious prosecution, which is detention with judicial process followed by prosecution (OCGA § 51-7-40).” Ferrell v. Mikula, 295 Ga. App. 326, 329 (2) (672 SE2d 7) (2008). The distinction is important because “[mjalicious prosecution and malicious arrest are mutually exclusive; if one right of action exists, the other does not.” (Citation and punctuation omitted.) Perry v. Brooks, 175 Ga. App. 77, 78 (3) (332 SE2d 375) (1985).

Where, as here, there has been an arrest pursuant to a warrant, the remedy depends on whether the accused was prosecuted. “If after the arrest [,] the warrant is dismissed or not followed up, the remedy is for malicious arrest. But if the action is carried on to a prosecution, an action for malicious prosecution is the exclusive remedy, and an action for malicious arrest will not lie.” (Citation omitted; emphasis supplied.) Garner v. Heilig-Meyers Furniture Co., 240 Ga. App. 780, 781-782 (1) (525 SE2d 145) (1999).

Zimmerman was arrested pursuant to a warrant. He was jailed and released about two days later after an initial video appearance before a judge. He was charged with false statements and writings and with four counts of criminal damage to property.

After a preliminary hearing on July 14,2011, before the Chatham County Recorder’s Court, the charges were dismissed. An inquiry before a “committing court” is a required element of a malicious prosecution claim. OCGA § 51-7-42; see Renton v. Watson, 319 Ga. App. 896, 899 (1) (739 SE2d 19) (2013). The Chatham County Recorder’s Court is authorized to take and entertain pleas of guilty and nolo contendere in misdemeanor cases. Pough v. State, 162 Ga. App. 63, 64 (1) (290 SE2d 300) (1982). As the Recorder’s Court is a committing court, Zimmerman’s only claim is for malicious prosecution. Perry, supra.

(b) Malicious prosecution.

The City and Stephens argue that the trial court erred in finding a fact question as to whether Stephens had probable cause to arrest Zimmerman in the context of the malicious prosecution claim. See Renton, supra at 898 (1) (defining the six elements of a malicious prosecution claim). We agree.

Zimmerman essentially argues there was no probable cause and that this, coupled with evidence of actual malice, necessitates the trial court’s denial of the City and Stephens’s motion for summary judgment. To successfully prosecute a tort claim for malicious prosecution, “a plaintiff must show that the defendant acted both without probable cause and maliciously[.]” (Citations omitted.) Anderson v. Cobb, 258 Ga. App. 159, 160 (2) (573 SE2d 417) (2002).

Malice is an element of malicious prosecution and may be inferred by a total lack of probable cause. Our initial inquiry, however, is not whether [Stephens] acted maliciously for purposes of the tort of malicious prosecution, but whether she acted with actual malice that would exempt her from official immunity. Official or qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. In Georgia, a public officer may be personally liable ... for discretionary acts performed with malice or an intent to injure.

(Punctuation and footnotes omitted; emphasis in original.) Marshall v. Browning, 310 Ga. App. 64, 67 (712 SE2d 71) (2011). Stephens acted with discretionary authority in investigating and obtaining arrest warrants. See Anderson, supra at 160 (2).

In the context of official immunity, “[a]ctual malice requires a deliberate intention to do wrong[.] ... Ill will alone is insufficient to establish actual malice; [Zimmerman] must show that [Stephens] acted with the deliberate intent to commit a wrongful act or with the deliberate intent to harm [him].” (Citation omitted.) Anderson, supra at 160 (2). Deliberate intent does not mean “merely an intent to do the act purportedly resulting in the claimed injury” and “[a]ctual malice does not include implied malice or the reckless disregard for the rights and safety of others.” (Footnotes omitted.) Marshall, supra at 67-68.

Zimmerman argues that Stephens should have investigated further before arresting him, and should have questioned witnesses and suspects about the race of the fourth suspect. He also alleges that she made inconsistent, possibly untrue, statements.

However, without more, “such actions do not show a deliberate intent to commit a wrongful act or to harm [Zimmerman].” Anderson, supra at 160-161 (2). We find no evidence that Stephens was motivated by personal malice toward Zimmerman. Further, Stephens sought arrest warrants based on information that included statements from one eyewitness who said four men were involved — two white men, a Hispanic man, and a black man, and two other eyewitnesses who reported seeing only two white males and a Hispanic male. The other person who told officers a black male might be involved was not an eyewitness. Further, one perpetrator told Stephens he was with “Josh Zimmerman” on the night in question and the other two suspects said they also were with “Josh.” Stephens testified that she could not find a black Josh Zimmerman, and that she discussed her findings with her supervisor, who concurred in her decision to arrest Zimmerman.

When Stephens interviewed Zimmerman, she noted that just as the other suspects had done, he initially denied involvement. He also initially said he did not know the other suspects, but later called Stephens to say he did know one of them. As Stephens testified:

[T]he fact that Josh, just as the three of them tried to clear themselves, Josh first denied knowing who any of them were, then had some sort of relationships with Seth Stratton, would only make me believe that, you know, just as they tried to disassociate themselves with things that occurred, why wouldn’t he?

This Court has found that if a jury could reasonably infer that police officers arrested the plaintiff despite knowing that the plaintiff did not commit the crimes at issue and, thus, that the officers deliberately intended to do a wrongful act, the officers were not entitled to summary judgment. Bateast v. DeKalb County, 258 Ga. App. 131, 132-133 (572 SE2d 756) (2002). However, we also have determined that

where an officer’s decision to seek warrants might be characterized as “misguided” there was nevertheless no evidence that the actions were taken with actual malice for purposes of official immunity. Similarly, absent malice or intent to injure, no liability attaches to the officer’s exercise of [her] lawful discretion even when the decision to effectuate the arrest is flawed.

(Citations and punctuation omitted.) Marshall, supra at 69.

Based upon the foregoing, we further find that the City has not waived its sovereign immunity. OCGA §§ 36-33-1 (b); 36-33-3. See Crisp County School System v. Brown, 226 Ga. App. 800, 804 (2) (487 SE2d 512) (1997). For the foregoing reasons, the trial court erred in denying the City’s and Stephens’s motion for summary judgment.

2. Zimmerman alleged that his due process rights were violated under 42 USC § 1983 because he was arrested without probable cause. Stephens and the City argue that Zimmerman raised this claim only against the City and not Stephens in her individual capacity. As a result, they argue, the trial court erred in denying their motion for summary judgment as to Stephens on this point.

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as ifthey had been raised in the pleadings.” OCGA § 9-11-15 (b). Because the appellants did not include transcripts of the summary judgment hearing in the appellate record, we have no way of knowing what matters or objections were raised. We must assume the trial court had authority to consider the issue. See Johnson v. Ware, 313 Ga. App. 774, 776 (1) (723 SE2d 18) (2012).

To survive the City and Stephens’s bid for summary judgment in a § 1983 action, Zimmerman bears the burden of proof in showing that genuine issues of material fact exist as to whether Stephens’s “acts or omissions, performed under color of [S]tate law, resulted in the deprivation of a right, privilege, or immunity protected by the United States Constitution or the laws of the United States.” (Citations omitted.) Means v. City of Atlanta Police Dept., 262 Ga. App. 700, 705 (2) (586 SE2d 373) (2003).

In the context, as here, of a § 1983 claim predicated on a lack of probable cause, “[t]he Supreme Court has held that a police officer will be liable under Section 1983 if [s]he applies for a warrant and ‘a reasonably well-trained officer . . . would have known that [her] affidavit failed to establish probable cause and that [s]he should not have applied for the warrant.’ ” Franklin v. Consolidated Govt. of Columbus, Ga., 236 Ga. App. 468, 471-472 (2) (512 SE2d 352) (1999), citing Malley v. Briggs, 475 U. S. 335, 345 (III) (106 SCt 1092, 89 LE2d 271) (1986).

Zimmerman argues that Stephens’s investigation leading up to his arrest was constitutionally deficient because she elected not to pursue easily ascertainable information regarding the ethnicity of the fourth suspect, there was conflicting information as to the fourth suspect’s residential address, and because she failed to interview his alibi witnesses until after he was arrested. While in the § 1983 context the Eleventh Circuit has found that “an officer may not choose to ignore information that has been offered to him or her . . . or elect not to obtain easily discoverable facts[,]” Kingsland v. City of Miami, 382 F3d 1220, 1229 (III) (A) (2) (11th Cir. 2004), that Court also recognized that police officers “are not required to perform error-free investigations” or “investigate every proffered claim of innocence.” (Citation omitted.) Id. at n. 10.

Probable cause exists if the facts and circumstances within the officer’s knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed ... an offense. However, the appropriate inquiry for qualified immunity is not whether there was probable cause, but whether there was “arguable” probable cause to arrest. In other words, we must determine whether reasonable officers in the same circumstances and possessing the same knowledge as the Defendants could have believed that probable cause existed to arrest.

(Citations and punctuation omitted; emphasis omitted.) Pickens v. Hollowell, 59 F3d 1203, 1206 (II) (A) (11th Cir. 1995). As outlined in Division 1, given the information before her at the time of the arrest, we cannot say that no reasonable officer in the same circumstances and with the same knowledge Stephens possessed could have believed he or she had probable cause to arrest Zimmerman. Further, while Stephens’s investigation was less than perfect, “[i]nadvertent errors, honest mistakes, agency confusion, even negligence in the performance of official duties, do not warrant redress under [42 USC § 1983].” (Citation and punctuation omitted.) Forney v. Purvis, 190 Ga. App. 192, 194 (1) (378 SE2d 470) (1989).

3. Given our determinations in Divisions 1 and 2, we need not reach appellants’ remaining contentions of error.

Judgment reversed.

Barnes, P. J., concurs. McMillian, J., concurs fully in Divisions 2 and 3 and in judgment only in Division 1.

Decided July 14, 2015 —

Reconsideration denied July 30, 2015.

Weiner, Shearouse, Weitz, Greenberg & Shawe, Malcolm Mackenzie III, C. Helen Bacon, Anthony R. Casella, for appellants.

Duffy & Feemster, Dwight T. Feemster, for appellee.

       The appellants requested, that transcripts not be included in the record on appeal.

       Although Zimmerman’s complaint uses the term “false arrest,” he in fact cites to and states a claim under OCGA § 51-7-1, the statute addressing malicious arrest. The torts of false arrest and malicious arrest are different. False arrest contains no malice element. Zimmerman clearly averred that Stephens “maliciously caused” his arrest. See Drug Emporium v. Peaks, 227 Ga. App. 121, 128-129 (2) (d) (488 SE2d 500) (1997) (where there was no averment as to malice, complaint did not allege malicious arrest but rather alleged false arrest).

      3 See Joseph v. Home Depot, 246 Ga. App. 868, 871-872 (2) (542 SE2d 618) (2000) (“Want of probable cause is the gravamen of an action for malicious prosecution; and there can be no recovery by the plaintiff when there was any probable cause for the prosecution, even though it may appear that the prosecutor was actuated by improper motives”) (citations and punctuation omitted).

       We note that probable cause does not mandate absolute verification, but the officer must act with a certain level of reasonableness in beginning the prosecution. “The [officer] is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so.” (Citations and punctuation omitted; emphasis supplied.) Joseph, supra at 872 (2).


author: Miller, Judge. DILLARD, Judge,

text:
    A15A0311.
    CHANDLER et al. v. LIBERTY MUTUAL FIRE INSURANCE COMPANY.
    (773 S.E.2d 876)
   Miller, Judge.

Collie Chandler and Sharon Milbry-Chandler, along with their daughter (collectively, “the Chandlers”), were injured in an automobile accident after their car was struck by another driver, Evans Johnson III, who was insured by Liberty Mutual Fire Insurance Company (“Liberty Mutual”). After the Chandlers settled their claims against Johnson, Liberty Mutual, who was also their insurer, denied their claims under Milbry-Chandler’s uninsured motorist policy (“the UM policy”). The Chandlers then filed suit against Liberty Mutual for breach of contract and bad faith based on its denial of their UM claims. During discovery, Liberty Mutual refused to produce certain relevant documents relating to the settlement of other claims under Johnson’s liability policy. After the Chandlers subpoenaed those documents, the trial court ordered Liberty Mutual to produce them for an in camera inspection. After reviewing the documents in camera, the trial court denied the Chandlers’ request to produce and then granted summary judgment to Liberty Mutual on the ground that the Chandlers failed to exhaust the limits of Johnson’s liability policy. The Chandlers appeal, contending that the trial court erred: (1) in refusing to order Liberty Mutual to produce the documents in question, and (2) in granting summary judgment to Liberty Mutual. For the reasons that follow, we agree and reverse.*

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the evidence shows that on April 5, 2010, Collie Chandler was driving north on Forest Parkway. With Chandler in the car were Milbry-Chandler, their daughter, and his brother. Chandler proceeded through a green light and was hit from the side by a vehicle driven by Johnson.* The Chandlers and Chandler’s brother were injured in the accident, and the Chandlers’ vehicle was damaged. Attorney Paula McGill represents the Chandlers, and she initially represented Chandler’s brother as well, although Chandler’s brother retained other counsel in 2010.

The limits of Johnson’s liability policy with Liberty Mutual were $25,000 per person and $50,000 per accident for bodily injury claims. Milbry-Chandler’s UM policy, also provided by Liberty Mutual, had coverage of $100,000 per person and $300,000 per accident. During settlement negotiations, Liberty Mutual informed McGill that any damages that were not covered by the liability policy would be paid under the UM policy.

On March 24, 2011, McGill sent a demand letter to Liberty Mutual on behalf of the Chandlers. Under Johnson’s liability policy, the Chandlers demanded $15,250 to settle Collie Chandler’s claim; $13,250 to settle Milbry-Chandler’s claim; and $9,000 to settle their daughter’s claim. In the same letter, the Chandlers sought to settle their remaining claims under the UM policy for $241,000.

On April 15, 2011, Liberty Mutual accepted the Chandlers’ demands under Johnson’s liability policy and issued checks to the Chandlers in the total amount of $37,500. McGill held the Chandlers’ settlement checks for several months while awaiting confirmation that Chandler’s brother had also settled under the liability policy. After Liberty Mutual advised her that the limits of Johnson’s liability policy had been exhausted, McGill deposited the settlement checks on June 22, 2011.

Thereafter, the Chandlers sought to recover under the UM policy, but Liberty Mutual would not proceed because it contended that the limits of Johnson’s liability policy had not been exhausted. The Chandlers then filed the instant lawsuit, alleging that Liberty Mutual waived the requirement of exhaustion of the limits of the liability policy by promising to pay the claims under the UM policy or, in the alternative, that Liberty Mutual purposely misled the Chandlers as to their intent to pay the UM claims.

During the discovery period, the Chandlers requested that Liberty Mutual disclose any documents in its possession relating to the settlement negotiations between Liberty Mutual and Chandler’s brother. Liberty Mutual objected to the request, arguing that the documents were neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The Chandlers then served Liberty Mutual with subpoenas to produce all documents relating to settlement negotiations with Chandler’s brother, as well as a designee to testify to the date and amount of any settlement. Liberty Mutual filed an emergency motion to quash the subpoenas.

Following a hearing on the emergency motion, the trial court ordered Liberty Mutual to disclose all documents related to any settlement between Liberty Mutual and Chandler’s brother for in camera review so that the trial court could determine if the limits of Johnson’s liability policy had been exhausted. Liberty Mutual produced the file on Chandler’s brother’s claim. Upon review, the trial court found that nothing in the file was “discoverable” and denied the Chandlers’ request to produce. This appeal followed.

1. Under the Civil Practice Act, all relevant documents must be produced pursuant to a valid discovery request. In several related arguments, the Chandlers contend that the trial court erred in finding that Liberty Mutual’s claim file was not discoverable. We agree.

We review a trial court’s rulings on discovery matters for abuse of discretion. See R. J. Reynolds Tobacco Co. v. Fischer, 207 Ga. App. 292, 293-294 (2) (427 SE2d 810) (1993).

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party[.]

OCGA § 9-11-26 (b)(1). Relevance should be interpreted “very broadly to mean [any] matter that is relevant to anything that is or may become an issue in the litigation.” (Citation and punctuation omitted.) Bowden v. The Medical Center, 297 Ga. 285, 291 (2) (a) (773 SE2d 692) (2015). “[T]he discovery procedure is to be construed liberally in favor of supplying a party with the facts.” (Citation omitted.) Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206,210 (2) (538 SE2d 441) (2000). “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” (Citation and punctuation omitted.) Bowden, supra, 297 Ga. at 290 (2) (a).

The Chandlers timely requested production of the file within the discovery period. This should have resolved the matter. The trial court instead undertook an in camera review. In doing so, the trial court was required to determine whether any of the documents contained in the claim file were relevant to anything that is or may become an issue in the instant litigation.

Generally, plaintiffs may pursue UM claims only after an insurer offers and the plaintiffs accept an amount equal to the limits stated in the liability policy and the plaintiffs execute a limited release in accordance with OCGA § 33-24-41.1. See Thompson v. Allstate Ins. Co., 285 Ga. 24, 26 (1) (673 SE2d 227) (2009); Holland v. Cotton States Mut. Ins. Co., 285 Ga. App. 365, 366 (646 SE2d 477) (2007). The insurer, however, can also waive conditions precedent to recovery where the insurer has led the insured to believe that it will pay the claims, either through the insurer’s actions during settlement negotiations or by direct promises to pay. See Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 66, 69 (1) (b) (363 SE2d 303) (1987). Moreover, an insurer may not, in bad faith, refuse to pay a covered uninsured motorist claim. See OCGA § 33-7-11 (j).

As set forth above, we must construe the discovery procedure liberally in favor of supplying the Chandlers with the facts. See Tenet Healthcare, supra, 273 Ga. at 210 (2). It appears that the trial court, in reviewing Chandler’s brother’s insurance file, took a narrow view of relevance and concluded that, since there were no documents showing exhaustion of the limits of the liability policy, the file was not discoverable. The fact that none of the documents in Chandler’s brother’s claim file show exhaustion does not mean that the file is not relevant to the Chandlers’ claims, particularly in the broad discovery sense.

The Chandlers asserted alternate theories in support of their claims for breach of contract and bad faith: either Liberty Mutual promised to pay the UM claims regardless of exhaustion or Liberty Mutual misled the Chandlers by representing that the limits of liability had been exhausted. Moreover, McGill averred that Liberty Mutual promised to pay any damages not covered by Johnson’s liability policy. Our review of the file shows that it contains evidence that in May 2011, before McGill deposited the checks settling the Chandlers’ claims under the liability policy, Liberty Mutual considered Chandler’s brother’s claim settled for an amount sufficient to exhaust the limits of Johnson’s liability policy. This evidence corroborates the Chandlers’ claims that Liberty Mutual informed McGill that the limits of Johnson’s liability policy had been exhausted and the Chandlers would be able to recover under the UM policy. See Jones, supra, 185 Ga. App. at 69 (1) (b) (question of fact existed as to whether UM insurer waived condition precedent that insured first obtain judgment against uninsured driver); see also U. S. Fidelity & Guaranty Co. v. Lockhart, 124 Ga. App. 810, 811-812 (2) (186 SE2d 362) (1971), aff’d, 229 Ga. 292 (191 SE2d 59) (1972) (affirming denial of summary judgment to insurer where there was evidence that insurer told insured that he would not have to file suit and thus may have waived condition precedent).

The insurance file appears reasonably calculated to lead to the discovery of admissible evidence regarding representations made by Liberty Mutual to McGill, which could raise a genuine issue of material fact as to whether Liberty Mutual waived the exhaustion requirement or negotiated in bad faith. Accordingly, the trial court abused its discretion when it ruled that the Chandlers were not entitled to discovery of Chandler’s brother’s insurance file and denied the Chandlers’ request to produce.

2. The Chandlers also contend that the trial court erred in granting summary judgment to Liberty Mutual because genuine issues of material fact exist as to the timing and amount of Chandler’s brother’s settlement.

On appeal, we need not determine whether Liberty Mutual committed breach of contract or acted in bad faith in denying the Chandlers’ claims under the UM policy. The trial court’s discovery order, which in effect denied the Chandlers’ request to produce, deprived the Chandlers of their right to discover relevant evidence and “of an opportunity to develop proof which may well give rise to triable issues of fact” as to their claims for bad faith and breach of contract. (Citation omitted.) Shipley v. Handicaps Mobility Systems, 222 Ga. App. 101, 102 (473 SE2d 533) (1996). Accordingly, the trial court’s grant of summary judgment to Liberty Mutual was premature. See Erickson v. Hodges, 257 Ga. App. 144, 146 (570 SE2d 420) (2002) (grant of summary judgment premature where party has not been able to obtain discovery); see also Dodson v. Sykes Indus. Holdings, 324 Ga. App. 871, 876 (1) (752 SE2d 45) (2013) (trial court should not grant summary judgment while a motion to compel discovery is pending “unless it can be determined that the disallowed discovery would add nothing of substance to the party’s claim”). Here, the disallowed discovery would have added substance to the Chandlers’ claims and, had the relevant discovery been produced, the parties might have been able to resolve the case. We therefore vacate the grant of summary judgment to Liberty Mutual and remand the case to the trial court for further proceedings consistent with this opinion.

Decided July 16, 2015 —

Reconsideration denied July 30, 2015 —

Paula J. McGill, for appellants.

Judgment reversed and case remanded.

Barnes, P. J., and McFadden, J., concur. Ellington, P. J., concurs in judgment only. Andrews, P. J., Dillard and Branch, JJ., dissent.

DILLARD, Judge,

dissenting.

Having carefully examined the documents inspected by the trial court in camera, it is evident that their production to the plaintiffs would not have created a genuine issue of material fact as to whether “either Liberty Mutual promised to pay the UM claims regardless of exhaustion or . . . misled the Chandlers by representing that the limits of liability had been exhausted.” Moreover, there was nothing included in these documents that appears “reasonably calculated to lead to the discovery of admissible evidence.” Thus, even when these documents and the McGill affidavit are construed in the light most favorable to the plaintiffs, there is simply no evidence that Liberty Mutual made any representations of the nature alleged by plaintiffs. The trial court did not err, then, in granting Liberty Mutual summary judgment on plaintiffs’ claims.

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

Isenberg & Hewitt, Brent J. Kaplan, Hilary W. Hunter, for appellee.

       After the clerk of the superior court transmitted the record on appeal, Liberty Mutual filed a motion to dismiss the Chandlers’ appeal on the ground that they had failed to file the transcript within 30 days of filing their notice of appeal (OCGA §§ 5-6-42; 5-6-48). Since the motion to dismiss the appeal was filed at the trial court after the record was transmitted to the Court of Appeals, and no objection was made prior to transmittal, Liberty Mutual’s motion to dismiss is denied. See Court of Appeals Rule 20; Shepherd v. Shepherd, 141 Ga. App. 855, 856 (1) (234 SE2d 689) (1977) (party waives failure of the appellant to comply with the provisions of the Appellate Practice Act relating to the filing of the transcript unless objection is made and ruled upon by the trial court prior to transmittal).

       Johnson was later convicted of driving under the influence.

       In endorsing the checks, McGill wrote that the Chandlers were not waiving their right to recover under their UM policy.

        Tyson v. Old Dominion Freight Line, Inc., 270 Ga. App. 897, 900 (1) (b) (608 SE2d 266) (2004) (punctuation omitted).

        See Garden City v. Herrera, 329 Ga. App. 756, 758 (766 SE2d 150) (2014) (noting that summary judgment is appropriate when “the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case” (punctuation omitted)).

        See Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 66, 69 (1) (b) (363 SE2d 303) (1987) (explaining that insurance “provisions and conditions precedent to recovery upon the policy are waived where the insurer has led the insured to believe that the insured will be paid without suit by its actions in negotiating for settlement or direct promises to pay” (punctuation omitted; emphasis supplied)).