author: DOYLE, Presiding Judge. BOGGS, Judge,

text:
    A12A2331.
    MILLER v. CITY VIEWS AT ROSA BURNEY PARK GP, LLC et al.
    (746 SE2d 710)
   DOYLE, Presiding Judge.

Tramaine Miller appeals from the grant of summary judgment to City Views at Rosa Burney Park GP, LLC (“City Views”), Ambling Management Company (“AMC”), and Kelly Bunch (collectively “Defendants”) in his suit against them based on an incident in which he was shot by an off-duty police officer providing security at City Views apartments. Miller contends that the trial court erred because fact questions remain as to (1) whether the Defendants were vicariously liable for the actions of the off-duty officer, (2) whether the Defendants negligently provided security at the apartments, and (3) whether punitive damages are available. For the reasons that follow, we affirm in part and reverse in part.

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. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that City Views owned an apartment complex and contracted with AMC to manage the property. Kelly Bunch, an AMC employee, worked as the on-site property manager for City Views apartments. Paul Kennon, an owner of Kennon Properties, which in turn held a stake in City Views, was aware of criminal activity on the property, so he contacted a supervisor at the local city police department for recommendations about hiring off-duty officers to provide security services at the City Views apartments. The supervisor put Kennon in contact with Bryan French, an active city police officer, and Kennon requested French to provide 12 hours a week of patrol time. Kennon was aware of potential gang activity on the property, and he wanted to increase patrols to address poor security conditions at the apartments. For a period of time, French worked at the apartments by himself along with employees of a private, unarmed security firm. After an unrelated shooting, Ken-non requested French to arrange additional officers to increase the patrol hours on the property, and French agreed to find additional officers to work at the apartments. French had authority to select the officers for hire and to terminate them if they did not perform adequately.

One of the additional officers French invited to patrol the City Views apartments was Reginald Fisher, who served with French at the city police department. Fisher first came to the apartments and met with Bunch, who showed Fisher the property and discussed the crime problems occurring at the apartments. Bunch also discussed items he wanted Fisher to pay attention to, such as doing a visual access card check on people entering the apartments. Fisher was paid by French with funds provided by City Views.

On Fisher’s first day working security at the apartments, he arrived, in his police uniform and armed with his service weapon, around 6:00 p.m. and patrolled the apartments until approximately 9:00 p.m., at which time he sat in his personal vehicle and ate dinner as he watched the apartment buildings. He saw Miller drive up, park in a handicap spot, and enter an apartment building. Fisher got out of his car to check Miller’s vehicle, which did not have a handicapped parking permit, and then returned to his car. Shortly thereafter, Miller returned, and Fisher exited his car to speak to Miller about keeping the handicap parking spots clear and to inquire about his reason for entering the building. Fisher deposed that Miller did not respond but entered his vehicle, locked the doors, and retrieved something from the center console and put it in his mouth. Fisher, believing it to be crack cocaine, knocked on the window and unsuccessfully ordered Miller to stop as Miller backed out. Miller had to reposition the car to exit the parking space, and Fisher attempted to block Miller with his body, continuing his orders to stop. Ultimately, when Miller did not heed Fisher’s warnings, Fisher broke Miller’s window with his baton, and as Miller reached for what Fisher believed to be a weapon, Fisher fired his service weapon, hitting Miller in the face. It was later determined that Miller, who was actually unarmed, had been at the apartments to assist his disabled aunt with her medications.

Based on these events, Miller sued City Views, AMC, Bunch, and Fisher, alleging claims for assault; battery; intentional infliction of emotional distress; false imprisonment; invasion of privacy; wrongful retention, supervision, hiring, entrustment, and training; premises liability; failure to warn; and punitive damages. Following discovery, City Views, AMC, and Bunch moved for summary judgment, and after a hearing, the trial court granted the motion as to Miller’s claims for vicarious liability; negligent hiring, retention, entrustment, and supervision; premises liability; and punitive damages. Miller now appeals.

1. Miller contends that the trial court erred by ruling that summary judgment was proper as to Miller’s vicarious liability theory of recovery. We agree.

(a) At the outset, we note the procedural posture of the case. “It has been generally held to be a question of fact for determination by a jury, whether, when a [police] officer performed the acts for which the master is sought to be held liable, he was acting in his capacity as servant, or in his capacity as a public officer.” “It is not the role of this Court, but is the role of a jury to sort through the evidence, resolve conflicts, and make findings of fact based on the evidence it finds credible.” Therefore,

[w]hen [a court rules] on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion.

(b) We now turn to the substantive legal principles applicable here.

Although as a general rule, employers are not responsible under the theory of respondeat superior for the torts of independent contractors [such as Fisher],[] if an employer controls the time, manner, and method of executing the work, an employer-employee relationship exists [,] and liability will attach. In cases involving off-duty police officers working for private employers, however, the employer escapes liability if the officer was performing police duties which the employer did not direct when the cause of action arose.

Therefore, liability for the torts of a hired off-duty officer does not extend to his private employer simply because it occurred at the private employer’s premises during the officer’s employment with the private employer.

[I]f [the officer] commits a tort merely as a police officer, the company would not be liable, unless it was done at the direction of the company. The mere fact that a [private] company pays for the services of a certain police officer, who does nothing but perform the duties of a police officer proper, does not make the company liable.

But an officer “may occupy a dual position of exercising functions for the public and the company; in which case, where he is in the discharge of duties for the company, and the tort is committed under such circumstances as not to justify it, the company is liable.” In light of this rule, we must determine whether there is any evidence to support a finding that Fisher was discharging any duties directed by City Views rather than merely performing police duties during his off-duty employment. Miller points to portions of the record showing that City Views had a security policy of engaging individuals who parked in handicap parking spots without a permit to keep the spots clear for authorized users, enforcing evictions, and checking identification and limiting access of people entering or exiting the high rise apartment tower. The off-duty officers working at City Views pursued these policies, and Fisher deposed that at the specific time he approached Miller, he had a blended purpose of “let[ting] him know that there is security here. We can’t allow anybody to park in the handicap parking spots anymore. And then also [I] was going to raise a question [as] to what made him [enter and leave] the apartment building.” Thus, while Fisher was inquiring about a potential handicap parking violation, arguably a police function, he also had the purpose of enforcing City Views’s policy of approaching people who were not necessarily engaged in any suspected criminal activity to verify their proper access to the apartments. This latter purpose was not strictly a police function; rather, it was performed in furtherance of City Views’s policy to regulate access to the apartments. Therefore, viewing the record in the light most favorable to Miller, we conclude that there is some evidence to support a finding that Fisher was performing a security function directed by City Views, instead of merely performing police duties that City Views did not direct. Accordingly, summary judgment is not appropriate on the vicarious liability issue at this time.

In so holding, we find distinct the cases cited by the appellees in which employers were not vicariously liable for torts allegedly committed by off-duty police they hired. For example, in Page v. CFJ Properties, the off-duty officer acted on his own to arrest a shoplifter he witnessed taking merchandise from the employer’s store. We held that the undisputed facts showed that the employer did not direct the officer’s actions, so vicarious liability did not attach. Likewise, in Hyatt Corp. v. Coofe, this Court reversed the denial of summary judgment to Hyatt when an off-duty officer, paid by Hyatt, arrested a patron for disorderly conduct after the officer was notified by Hyatt bar staff that there was a problem at the bar and the patrons were ignoring requests to leave at closing time. Even though the off-duty officer was responding to his private employer’s report of a problem on site, the officer was simply performing a police function when he arrested the patron while managing an unruly bar crowd.

Here, by contrast, the officer who shot Miller testified that he never intended to arrest Miller, and that he was, at least in part, implementing City Views’s policy of regulating access to the apartments when he engaged Miller. “Such evidence [would authorize] the jury to conclude that [Fisher] confronted [Miller] in order to enforce [City Views’s] policy, rather than to [only] perform a police duty.” Accordingly, the trial court erred by granting summary judgment as to Miller’s claim for vicarious liability.

(c) Although the trial court did not address each defendant individually in its order, we note that, on appeal, each defendant argues against vicarious liability based on its own particular involvement in the facts of the case. Based on our conclusions above, it is clear that summary judgment as to vicarious liability is not appropriate for City Views because there is evidence that it set the policy, and through communications between Kennon and French, it directed the officers to implement security policies it deemed necessary. Likewise, with respect to AMC, there is evidence that it participated in the implementation of the security policies and the directions given to the officers, so summary judgment was not appropriate for AMC. Nevertheless, with respect to Bunch, it is undisputed that his role was solely as an agent of AMC, and he was not, in his individual capacity, engaged in the direction of the officers such that they were his personal employees, contractors, or agents for the purpose of vicarious liability. Accordingly, the trial court correctly granted summary judgment to Bunch with respect to vicarious liability.

2. Miller also contends that the trial court erred by entering summary judgment on his premises liability claim. Specifically, he argues that a factual dispute exists as to whether City Views, AMC, and Bunch negligently provided security services at the City Views apartments. We disagree.

Miller’s argument essentially asserts that the directions and security policies of City Views and AMC were “reckless” and directed officers to engage and arrest individuals without legal justification. Nevertheless, there is nothing in the record to suggest that the defendants directed, condoned, or encouraged reckless or unlawful behavior by the off-duty officers. Miller points to no portion of the record showing that officers were directed to act without legal justification, and, to the contrary, the record uniformly shows that the policies were an attempt to provide greater safety. City Views had authority to exclude evicted tenants and other unauthorized visitors, and directing officers to actively patrol the parking lots and engage visitors was not without legal justification because police officers are authorized to engage and speak to citizens (without detaining them), even absent any reasonable suspicion, and they do not violate visitors’ rights by doing so. Accordingly, Miller’s argument affords no grounds for reversal as to the premises liability claim based on negligently providing security.

3. Finally, Miller argues that the trial court erred by granting summary judgment as to punitive damages. The trial court ruled that Miller’s claim for punitive damages failed as a matter of law because his other claims failed. But in light of our ruling in Division 1, we must reverse this ruling “because we have found that other claims survive which would authorize the imposition of punitive damages if the jury were to find that the . . . defendants acted with a wanton disregard of the rights of [Miller].”

Punitive damages may be awarded in tort actions in which clear and convincing evidence proves that a defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. A conscious indifference to consequences relates to an intentional disregard of the rights of another. Wilful and intentional misconduct is not essential.

Further,

employers or principals may be vicariously liable for punitive damages arising from the acts or omissions of their employees or agents if such tortious conduct is committed in the course of the employer’s or principal’s business, within the scope of the servant’s or agent’s employment, and is sufficient to authorize a recovery of punitive damages under OCGA§ 51-12-5.1.

Here, there is evidence that Miller, who was unarmed, was shot by an off-duty police officer while delivering medicine to his aunt. While there is evidence of circumstances mitigating Fisher’s conduct in shooting Miller, the record before us does not resolve the issue of punitive damages as a matter of law.

Actions arising to a conscious indifference to consequences may authorize a finding of punitive damages. Whether the tort was sufficiently aggravating to authorize punitive damages is generally a jury question, and a jury may award punitive damages even where the clear and convincing evidence only creates an inference of the defendants’ conscious indifference to the consequences of their acts.

Accordingly, we reverse the grant of summary judgment as to punitive damages.

Judgment affirmed in part and reversed in part.

Phipps, C. J., Barnes, P. J., Ellington, P. J., and McFadden, J., concur. Boggs and Branch, JJ., concur in part and dissent in part.

BOGGS, Judge,

concurring in part and dissenting in part.

I fully concur in the portion of the majority opinion affirming the trial court’s grant of summary judgment on Tramaine Miller’s premises liability claim under OCGA § 51-3-1, as well as its statement of the standard of review (Divisions 1 (a) and 2). I respectfully dissent from the majority’s reversal of the trial court’s order granting summary judgment to City Views at Rosa Burney Park, LLC (“City Views”), and Ambling Management Company (“AMC”) on Miller’s vicarious liability claims and on his claim for punitive damages (Divisions 1 (b) and 3). The undisputed evidence shows that Officer Fisher thought Miller was trying to conceal illegal drugs and was armed with a gun, and that he shot Miller while he was trying to stop and arrest him for drug possession. Because the evidence shows that Officer Fisher took these actions solely as a police officer performing public duties, not within the scope of his employment at the apartments, the trial court correctly concluded as a matter of law that Miller could not hold City Views, AMC, or property manager Kelly Bunch vicariously liable for damages caused by Officer Fisher’s actions.

Miller brought suit for damages (including punitive damages) caused by Officer Fisher’s actions. He sought to impose individual liability on Officer Fisher, and vicarious liability on City Views, AMC, and Bunch, for Officer Fisher’s alleged intentional torts of assault, battery, intentional infliction of emotional distress, false imprisonment, and invasion of privacy. Miller and Officer Fisher gave different accounts of the facts underlying these intentional tort claims. Nevertheless, the facts on which there was no disagreement show that, at the time of the alleged torts, Officer Fisher was performing police duties and was not being directed or acting within the scope of his private employment.

Miller testified that he drove to City Views apartments at night to deliver medication to his aunt who lived there, and parked his car in the handicap space in front of the apartments. Miller was not handicapped and did not have a handicap sticker, but said he commonly parked there when visiting his aunt because the handicap restriction had never been enforced. Miller said that, after visiting with his aunt, he exited the apartment building, walked to his car, got in and started the car and placed the car in reverse. At that point, he heard a voice ordering him to put up his hands. Miller put up his hands while holding a cell phone in his left hand. At the same time, Miller saw a hand break the driver’s side window next to him followed closely by a gunshot which struck him in the face.

Officer Fisher testified that, on the night at issue, he was employed off-duty to provide security at City Views apartments, located in an area known for illegal drug sales. He was wearing his City of Atlanta police uniform and was carrying his police-issued baton and firearm. He saw Miller exit the apartment building and walk toward his car which was parked illegally in a handicap space. There was evidence that Bunch had specifically directed Officer Fisher to keep the handicap space open for those who were authorized to use it.

The officer said that he approached Miller with the initial intention to advise him not to park in the handicap space, and that he had no intention at that point to arrest him. Miller did not respond to the officer’s requests to stop, but instead entered his car and locked the doors. At that point, the officer approached the car, tapped on the window, and asked Miller to exit the car. Officer Fisher testified that as Miller started to back the car up, it struck him, and that at the same time he saw Miller reach into his pocket and place an object in his mouth about the size of a rock of crack cocaine. Because the officer thought that Miller was trying to conceal an illegal drug, and because Miller was obstructing him by refusing to exit the car and bumped him with the car, he decided at that point to arrest Miller for those reasons.

After the officer made the decision to arrest Miller, he used his baton to break out the driver’s side window intending to reach in to open the car door to get Miller out of the car. According to the officer, when he broke the window, he saw Miller reach under the seat and his hand come up with what appeared to him to be a gun. The officer then drew his service handgun and fired one shot which struck Miller in the face.

Officer Fisher’s undisputed testimony was that he was trying to arrest Miller because he believed he was in possession of illegal drugs, and that he shot Miller while attempting to make the arrest because he thought Miller had a gun. The officer conceded that, after he shot Miller, no drugs were found and no gun was found on Miller or in his car. Officer Fisher also testified that, although Bunch discussed with him that the use and sale of illegal drugs was a security problem at the apartments, he was given no directions about how to deal with the problem. Rather, Officer Fisher testified that he used his training as a police officer when he observed what he thought to be crack cocaine in Miller’s possession, and when he made the decision to arrest Miller.

On these facts, the trial court correctly ruled that when Officer Fisher attempted to stop and arrest Miller, and shot him while doing so, he was acting solely as a City of Atlanta police officer and not within the scope of his off-duty employment at the apartments. Regardless of whether Officer Fisher was hired to provide off-duty security at the apartments as an employee subject to direction and control, or as an independent contractor not subject to direction and control, no vicarious liability can be imposed on City Views and AMC for alleged intentional torts which arose out of Officer Fisher’s actions taken solely as a police officer.

Except as to negligence set forth in OCGA § 51-2-5, an employer is generally not vicariously liable for the negligence of an employee hired as an independent contractor who “is not subject to the immediate direction and control of the employer.” OCGA § 51-2-4. “Those statutory provisions, however, pertain to an employer’s liability for the negligence of the independent contractor or employee, and thus are inapplicable to... cases which involve intentional torts.” Peachtree-Cain Co. v. McBee, 170 Ga. App. 38, 39 (316 SE2d 9) (1984), affirmed, 254 Ga. 91 (327 SE2d 188) (1985). As to intentional torts committed by security personnel employed as independent contractors by a property owner or manager, the rule is that vicarious liability may be imposed for those torts, committed within the scope of employment, against invitees on the property. Id.

As applied to an off-duty police officer employed to provide private security, however, the rule is that, if the officer was performing police duties at the time of the alleged tort, and was not being directed by the employer or acting within the scope of the private employment, then the employer cannot be held vicariously liable for the tort. Beck v. Paideia School, 191 Ga. App. 183-184 (1) (381 SE2d 132) (1989).

If at the time the alleged tort was committed the police officer was performing public duties, not at the direction of the private master, the master is not liable. . . . [The employer of an off-duty police officer] incurs no vicarious liability as a result of acts performed by the policeman in furtherance of his public duties.

(Citations omitted.) Id.; Page v. CFJ Properties, 259 Ga. App. 812, 813-814 (578 SE2d 522) (2003) (off-duty police officer employed for private security by store was performing police duties when he made shoplifting arrest based on his training and experience as a police officer — employer was not vicariously liable for alleged wrongful arrest).

By contrast, when the evidence shows that the off-duty police officer was acting within the scope of his private employment at the time of the alleged tort, the employer may be held vicariously liable. For example, in Seibers v. Dixie Speedway, 220 Ga. App. 811 (470 SE2d 452) (1996), after Seibers was injured in a fight at the Speedway, off-duty officers employed to provide private security refused to let Seibers leave to get obviously needed medical attention, but instead detained him (without making an arrest) for about two hours during which his serious brain injury worsened. Id. at 811-812. Evidence showed that the officers detained Seibers until he “shook hands” with the other combatant to implement a Speedway policy of resolving altercations before those involved left the Speedway. Id. at 811-812. Because there was evidence that, at the time of the alleged tort, the officers were acting within the scope of their private employment to implement a private policy, a jury issue was presented as to whether the Speedway was vicariously liable. Id. at 812-813 (1).

In the present case, undisputed facts show that, at the time of the alleged intentional torts, Officer Fisher was performing police duties, outside the scope of his private employment, which were not directed by City Views, AMC, or Bunch. Even if there was evidence that Officer Fisher’s initial approach to Miller about parking in the handicap space was directed by Bunch or within the scope of his private security employment, there is no evidence that the officer was acting at the direction of City Views, AMC, or Bunch, or within the scope of his private employment, when he took discretionary police action by attempting to arrest Miller for drug possession and shot Miller during the attempted arrest. “[A]ll law enforcement officers have the general duty to enforce the law and maintain the peace. They carry this duty twenty-four hours a day, on and off duty.” (Citation and punctuation omitted.) Stryker v. State, 297 Ga. App. 493, 494 (677 SE2d 680) (2009). Thus, Officer Fisher was engaged in the discharge of his official duties when he took action to make a warrantless arrest of Miller — even if the officer operated on the mistaken belief that an arrest was appropriate. There is no evidence that City Views or AMC trained or directed Officer Fisher as to the approach or apprehension of persons on the premises suspected of possessing illegal drugs, or how to respond to persons the officer believed to be armed. Rather, the evidence showed that, at the time of the alleged torts, Officer Fisher was acting based on his police training and his own discretion.

Decided July 16, 2013

Reconsideration denied July 31, 2013

Cochran, Cherry, Givens, Smith & Sistrunk, Hezekiah Sistrunk, Jr., Shean D. Williams, Mawuli M. Davis, Robert O. Bozeman, M. Gino Brogdon, for appellant.

Hall Booth Smith, John E. Hall, Jr., James W. Standard, Jr., Duane L. Cochenour, Drew, Eckl & Farnham, Chad E. Jacobs, Douglas K. Burrell, Bruce A. Taylor, Jr., for appellees.

On this record, City Views and AMC cannot be held vicariously liable for the intentional torts allegedly committed by Officer Fisher against Miller. We should therefore affirm the trial court’s grant of summary judgment in favor of City Views and AMC on these claims. Beck, supra.

I am authorized to state that Judge Branch joins in this opinion.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Miller’s appellate brief does not challenge the trial court’s grant of summary judgment as to his claims for negligent hiring, retention, entrustment, and supervision.

        Massachusetts Cotton Mills v. Hawkins, 164 Ga. 594, 596 (1) (139 SE 52) (1927).

        Montgomery v. Barrow, 286 Ga. 896, 898 (1) (692 SE2d 351) (2010).

        Hyatt Corp. v. Cook, 242 Ga. App. 542, 543 (529 SE2d 633) (2000), citing Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       It is undisputed that Fisher was not an employee of any defendant.

       (Citation omitted; emphasis supplied.) Seibers v. Dixie Speedway, 220 Ga. App. 811, 812 (1) (470 SE2d 452) (1996), citing Pounds v. Central of Ga. R. Co., 142 Ga. 415 (83 SE 96) (1914).

       See Pounds, 142 Ga. at 418.

       Id.

       Id.

        See American Multi-Cinema v. Walker, 270 Ga. App. 314, 315-316 (605 SE2d 850) (2004) (finding no error in the denial of a directed verdict to a movie theater employing an off-duty officer because there was evidence that the officer was checking ticket stubs to enforce the theater’s policy against loitering when the officer allegedly committed the tort against a movie theater patron); Seibers, 220 Ga. App. at 812 (1).

       259 Ga. App. 812 (578 SE2d 522) (2003).

       See id. at 812.

       242 Ga. App. 542.

       See id. at 545.

        American Multi-Cinema, 270 Ga. App. at 315 (1) (a). See also Seibers, 220 Ga. App. at 812-813 (1) (reversing the grant of summary judgment because a question of fact remained as to whether an off-duty officer was enforcing the private employer’s policy).

       See generally Matheson v. Braden, 310 Ga. App. 585, 586-587 (713 SE2d 723) (2011) (“When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master.”).

       We note that the case relied upon by Miller, Jackson v. Post Properties, 236 Ga. App. 701, 704 (5) (513 SE2d 259) (1999), involved an allegation that Post failed to provide enough security and is therefore inapposite here.

       See, e.g., Bacallao v. State, 307 Ga. App. 539, 541-542 (705 SE2d 307) (2011) (“It is well established that an officer’s approach to a stopped vehicle and inquiry into the situation is not a ‘stop’ or ‘seizure’ but rather clearly falls within the realm of the first type of police-citizen encounter. Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search — as long as the police do not convey a message that compliance with their requests is required.”) (punctuation omitted).

       See Nelson v. Glynn-Brunswick Hosp. Auth., 257 Ga. App. 571, 580 (5) (571 SE2d 557) (2002).

        Todd v. Byrd, 283 Ga. App. 37, 47 (9) (a) (640 SE2d 652) (2006), overruled on other grounds by Ferrell v. Mikula, 295 Ga. App. 326, 333 (2) (672 SE2d 7) (2008).

       (Citations and punctuation omitted.) Tyler v. Lincoln, 272 Ga. 118, 120 (1) (527 SE2d 180) (2000).

        Fowler v. Smith, 237 Ga. App. 841, 843 (2) (516 SE2d 845) (1999).

       See Todd, 283 Ga. App. at 47 (9) (a).

       (Punctuation and footnotes omitted.) Weller v. Blake, 315 Ga. App. 214, 219-220 (3) (726 SE2d 698) (2012).

       The majority’s statement that “the officer who shot Miller testified that he never intended to arrest Miller” is not supported by the record. The officer testified only that when he initially approached Miller, he planned to merely “counsel him about not parking in the handicap spot,” but he subsequently decided to arrest Miller for a different reason during the course of their encounter.

       I agree with the majority’s conclusion in Division 1 (c) that the trial court properly granted summary judgment in favor of Bunch on the issue of vicarious liability.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A13A0337.
    JACKSON v. THE STATE.
    (742 SE2d 519)
   Miller, Judge.

Curtis Jackson, pro se, appeals from the trial court’s dismissal of his emergency motion to modify and vacate a void sentence pursuant to OCGA § 17-10-1 (f). Jackson contends that the trial court improperly dismissed his motion as untimely, that his sentence is null and void because it exceeds the statutory maximum, and that his sentences should not have been imposed consecutively. Further, in his second enumeration, he contends that, at his sentencing, the trial judge was biased and invoked his personal emotions against him.

The record shows that a jury found Jackson guilty of two counts of receiving stolen property (OCGA § 16-8-7 (a)), and one count of operating a vehicle without a valid license plate. Jackson was sentenced to ten years on each theft by receiving count, to be served consecutively to one another. Jackson filed an appeal of the trial court’s denial of his motion for an out-of-time appeal, which was affirmed by this Court in Jackson v. State, 313 Ga. App. 483 (722 SE2d 80) (2011). Jackson applied for a writ of certiorari, which was denied by the Supreme Court of Georgia on October 1,2012. Jackson v. State, 313 Ga. App. 911 (2012). Prior to this, however, on July 16, 2012, Jackson filed in the trial court his emergency motion to modify and correct sentence, which the trial court dismissed on August 16, 2012 as untimely. The remittitur from this Court was issued to the trial court on January 8, 2013.

1. Jackson contends that the trial court incorrectly dismissed as untimely his motion to modify and vacate sentence. We agree. Under OCGA § 17-10-1 (f), a court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010); Burg v. State, 297 Ga. App. 118 (676 SE2d 465) (2009).

Therefore, as shown by the chronology set out above, the trial court’s dismissal of Jackson’s motion to modify and correct sentence as untimely was error.

2. Jackson contends that the trial court erred in imposing consecutive sentences. We agree. As correctly concededby the State in its brief, the separate counts of theft by receiving stolen property may merge as a matter of fact, and Jackson cannot be sentenced for two consecutive ten-year terms.

“[W]ith respect to receiving or concealing stolen property ... [if] articles stolen at different times from several persons [are] received and concealed by the same act . . . then there is but one offense.” (Citations and punctuation omitted.) Hardin v. State, 141 Ga. App. 115, 118 (4) (232 SE2d 631) (1977); see also Westmoreland v. State, 151 Ga. App. 850, 851 (2) (261 SE2d 761) (1979).

Therefore, this case must be remanded to the trial court for resentencing consistent with this opinion.

3. We are unable to consider Jackson’s contentions that the trial court was biased and invoked his personal opinion against Jackson during his sentencing hearing, because these questions of whether the sentence was fair do not bear on whether a sentence was void and subject to a sentence modification under OCGA § 17-10-1 (f). See Mosley v. State, 301 Ga. App. 47, 49 (686 SE2d 833) (2009) (dismissing direct appeal of motion to vacate sentence based on claims asserting procedural defects). Any allegations of unfairness or bias relating to his sentence should have been raised in Jackson’s first appeal, and he cannot raise these issues on his second appeal. See id. In any event, we have examined the transcript of that hearing and find no evidence of bias on the part of the trial court.

Decided May 2, 2013

Reconsideration denied July 31, 2013.

Curtis Jackson, pro se.

Richard G. Milam, District Attorney, Lauren A. Love, Assistant District Attorney, for appellee.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Ray, J., concur.

       Jackson’s first appeal was filed untimely, and we dismissed his appeal. See Jackson, supra, 313 Ga. App. at 483-484. He filed a motion for an out-of-time appeal with the trial court. Id. at 484. The trial court denied his motion, and we affirmed the trial court’s ruling. Id.


author: McFadden, Judge. DOYLE, Presiding Judge,

text:
    A13A0399.
    RADIO PERRY, INC. v. COX COMMUNICATIONS, INC.
    (746 SE2d 670)
   McFadden, Judge.

Radio Perry, Inc., the operator of a local commercial television station, WPGA, and cable operator Cox Communications, Inc. are engaged in a dispute about whether and on what terms Cox must carry WPGA’s signal on its cable system. This dispute has resulted in proceedings before this court, the Superior Court of Bibb County, the federal district court, and the Federal Communications Commission (FCC). In the instant case, Radio Perry sought a declaratory judgment that a contract between it and Cox had “been cancelled for material and substantive breach on the part of Cox,” that Cox therefore had no basis under the contract to terminate carriage of WPGA, and that Cox must continue to carry WPG A on its system. The trial court granted Cox’s motion to dismiss Radio Perry’s complaint. It also denied Radio Perry’s motion for continuing injunctive relief, finding that it lacked jurisdiction to grant the relief requested.

We find it possible that Radio Perry could introduce evidence within the framework of its complaint entitling it to the declaratory judgment. Accordingly, we reverse the trial court’s dismissal of that complaint. We further find that the trial court erred in concluding that it lacked jurisdiction to grant Radio Perry the injunctive relief it sought. Accordingly, we vacate the trial court’s denial of the request for a continuing injunction and remand for it to consider whether such relief is appropriate.

1. Motion to dismiss.

We review de novo the trial court’s ruling on a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6). See North-way v. Allen, 291 Ga. 227, 229 (728 SE2d 624) (2012). The motion

should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

Scouten v. Amerisave Mtg. Corp., 283 Ga. 72, 73 (1) (656 SE2d 820) (2008) (citations omitted).

In this case, Radio Perry attached exhibits to and incorporated the exhibits into its complaint, and Cox did the same with its motion to dismiss. The trial court was authorized to consider these exhibits in ruling on the motion to dismiss, and we may consider them in our appellate review as well. See Stendahl v. Cobb County, 284 Ga. 525, 526 (1), n. 2 (668 SE2d 723) (2008); Infinite Energy v. Pardue, 310 Ga. App. 355, 356 (1) (713 SE2d 456) (2011); Bakhtiarnejad v. Cox Enterprises, 247 Ga. App. 205, 207-208 (1) (541 SE2d 33) (2000).

(a) Facts and background as alleged in the complaint and shown in the incorporated exhibits.

Radio Perry has broadcast as a television station in the Macon and middle Georgia area since 1995. Cox carries WPGA’s signal on its cable system. The Cable Television Consumer Protection Act (the Cable Act) and implementing FCC rules required Radio Perry to elect either “must carry” status or “retransmission consent” status. See 47 USC §§ 325, 534; 47 CFR § 76.64 (f). Generally, “must carry” status requires a cable system to carry a local commercial television station in its entirety, 47 USC § 534 (a), while “retransmission consent” status does not, 47 USC § 325 (b), and local commercial television stations are required to elect their status for three-year cycles. 47 CFR § 76.64 (f) (2). Prior to 2008, Radio Perry elected “must carry” status, but it failed to make a status election for the 2009-2011 cycle by the election deadline, October 1, 2008. See 47 CFR § 76.64 (f) (2). By default, this failure operated as an election of “must carry” status for the 2009-2011 cycle. See 47 CFR § 76.64 (f) (3).

Radio Perry and Cox then entered into the contract at issue in this case. Radio Perry did so at Cox’s request, to ensure that Cox would have the right to broadcast WPGA’s digital signal during the interim between the expiration of a previous contract between the parties and the date when, under federal law, WPGA would stop broadcasting an analog signal. Radio Perry explains in its appellate brief that its president mistakenly thought that the contract governed only high definition carriage. Instead, under the terms of the contract, Radio Perry elected “retransmission consent” status for the 2009-2011 and 2012-2014 election cycles. The contract provided that Cox would carry WPGA’s digital signal “without interruption or alteration” but it further provided that Cox would not be required to carry the signal if WPGA ceased to be a “Top-4” station (defined as a station primarily affiliated with one of four national television networks).

Radio Perry decided to end its affiliation with a “Top-4” network when that network significantly raised the cost Radio Perry would have to pay for the programming; the termination of this affiliation was effective January 1,2010. When Cox learned of this, it sent Radio Perry a letter stating that on January 1, 2010, it would stop carrying WPGA on its local cable system. Radio Perry filed an action in the Superior Court of Bibb County for declaratory and injunctive relief, seeking a ruling that Cox was required to carry WPGA’s signal notwithstanding its lack of “Top-4” station status under another provision of the contract and that Cox would violate the contract if it ceased carriage. Finding that the contract (which Radio Perry had attached to its complaint) unambiguously allowed Cox to terminate carriage, the superior court dismissed the complaint for failing to state a claim. We affirmed that dismissal without opinion pursuant to Court of Appeals Rule 36. Radio Perry v. Cox Communications, 309 Ga.App. XXII (2011).

Meanwhile, in March 2010, Radio Perry filed a complaint with the FC C alleging that it had “must carry” status by virtue of its failure to make an election by the October 1, 2008 deadline, despite the contrary terms of the subsequent contract. Radio Perry also asked the FCC to make other rulings pertaining to terms of the contract. The FCC, in an order dated July 16, 2010, agreed with Radio Perry that the contract terms could not modify Radio Perry’s earlier default election of “must carry” status for the 2009-2011 cycle. The FCC, however, declined to rule on other contract terms, noting that its rules “[did] not prohibit stations that have elected or defaulted to must-carry from making side agreements with cable operators that can [a]ffect the terms of their carriage.”

On June 15, 2011, Cox sent Radio Perry a letter stating that it would stop carrying WPGA on July 28, 2011. Cox cited the contract and the prior rulings of the FCC, the Bibb County Superior Court, and this court as its grounds for terminating carriage. Viewing this act to violate the “spirit and letter” of the FCC’s ruling that it had “must carry” status, Radio Perry brought an action in federal district court to enforce the FCC’s ruling and to stop Cox from terminating carriage. Cox subsequently “announced that it would no longer seek to terminate” but would await the outcome of a petition for emergency relief that Radio Perry filed with the FCC on July 27, 2011.

On September 23, 2011, Radio Perry sent Cox’s counsel a letter that it now characterizes as a “rescission notice.” Therein, Radio Perry pertinently stated:

This letter is intended as formal notice of termination of the “Retransmission Consent and VOD License Agreement” (the “Contract”) effective January 1, 2009 between Radio Perry, Inc. (“Radio Perry”) and Cox Communications, Inc. (“Cox”). The termination is not based upon any express provision in the contract, but is based upon the fact that Cox has materially and substantially breached the contract based upon the events briefly described below.

The letter described the facts and procedural history set forth above, which Radio Perry characterized as constituting breaches “substantial, material, and fundamental to the contract,” pointing specifically to a provision of the contract that subjected the parties’ obligations to “all applicable federal, state and local laws, rules and regulations, including, but not limited to, the [Cable Act] and the FCC Rules.” It then concluded:

[B]ased upon these material and substantial breaches by your client [Cox], Radio Perry takes the position that the contract referred to above is terminated and at an end. See Mayor & City of Douglasville v. Hildebrand, 175 Ga. App. 434 [(333 SE2d 674)] (1985) [(physical precedent only)]. We do not believe that it is necessary to offer to restore the parties to their original position since we are terminating a contract. However, we also reserve our right to damages and these will more than offset any claims of “restoration.” Also, if your client is providing any services to my client under the Contract, they should he hilled separately and not set off against any “credit.” We do expect your client to continue carrying WPGA-TV on the cable as a “must carry” local broadcaster.

A few days later, on September 27,2011, Radio Perry notified Cox that it was electing “must carry” status for the 2012-2014 cycle. Cox responded by letter on October 5, 2011, rejecting Radio Perry’s notice of termination and noting that Radio Perry had failed to follow the procedure for termination set forth in the contract.

In a December 5, 2011 opinion, the FCC declined to find that Radio Perry had elected “must carry” status for the 2012-2014 cycle. The FCC ruled instead that, under the terms of the contract, Radio Perry “became a retransmission-consent station for the 2012-2014 carriage cycle.” It did not address Radio Perry’s argument that the contract had been terminated, finding that question to be outside its purview.

On December 15, 2011, Cox sent Radio Perry a letter stating its intent to end carriage of WPGA on January 17, 2012. Radio Perry then filed the instant action in the Superior Court of Bibb County, seeking to enjoin the termination of carriage and seeking a declaration that the contract “has been cancelled for material and substantive breach on the part of Cox, and that therefore, Cox has no basis to terminate and that Radio Perry remain[s] a ‘must carry’ local broadcaster which Cox must carry.” It also obtained an interlocutory injunction, and it requested a continuing preliminary injunction. Cox answered and moved to dismiss the action for failure to state a claim under OCGA § 9-11-12 (b) (6). It also argued that the trial court lacked jurisdiction to award continued injunctive relief, because that jurisdiction rested with the FCC.

In the order on appeal, the trial court denied Radio Perry’s request for a continuing preliminary injunction, concluding that it lacked jurisdiction to award the relief, and it granted Cox’s motion to dismiss. However, the trial court entered a separate order reinstating the earlier-granted interlocutory injunction and instructing Radio Perry to move this court to continue that injunction pending appeal. Radio Perry so moved, and we left the injunction in place.

(b) Evidence could be introduced within the framework of the complaint to show that Radio Perry unilaterally rescinded the contract.

Radio Perry’s complaint in this case rests on its allegation that it rescinded the contract after Cox took actions that constituted a material breach. Georgia law allows equitable rescission of a contract for nonperformance under OCGA § 13-4-62. Lanier Home Center v. Underwood, 252 Ga. App. 745, 746 (1) (557 SE2d 76) (2001). The remedy of rescission for nonperformance “is appropriate when the breach is so substantial and fundamental as to defeat the object of the contract.” Yi v. Li, 313 Ga. App. 273, 277 (721 SE2d 144) (2011) (citation and punctuation omitted). Radio Perry has alleged facts that could constitute such a breach — namely, that despite the FCC’s determination that Radio Perry had “must carry” status entitling it to carriage on Cox’s system for the 2009-2011 cycle pursuant to the Cable Act and FCC rules, and despite the contract provision subjecting the parties’ obligations to those statutory requirements and rules, Cox nevertheless attempted to terminate carriage before the end of the 2009-2011 cycle.

Cox argues that Radio Perry was not entitled to rescission under OCGA § 13-4-62 because it did not offer to restore Cox to its precontract position. OCGA § 13-4-62 provides: “A party may rescind a contract without the consent of the opposite party on the ground of nonperformance by that party but only when both parties can be restored to the condition in which they were before the contract was made.” As Cox argues, this means that “[t]he parties must be returned as nearly as possible to the status quo ante.” Southern Prestige Homes v. Moscoso, 243 Ga. App. 412, 417 (4) (532 SE2d 122) (2000) (citation omitted).

Radio Perry’s failure to offer restoration, however, does not defeat its rescission claim as a matter of law. There are circumstances under which a party need not offer restoration in order to rescind a contract, such as “where nothing of any value is received by the party seeking to rescind; and where the amount received under the contract sought to be rescinded may be less than the amount actually due the party seeking to rescind.” Metter Banking Co. v. Millen Lumber & Supply Co., 191 Ga. App. 634, 637-638 (2) (a) (382 SE2d 624) (1989) (citations omitted). Moreover,

[t]he rule that he who desires to rescind a contract must restore whatever he has received under it is one of justice and equity and must be reasonably construed and applied. The object of the rule is theoretically to place the parties in statu quo; but the rule is equitable, not technical, and does not require more than that such restoration be made as is reasonably possible and such as the merits of the case demand.

Intl. Software Solutions v. Atlanta Pressure Treated Lumber Co., 194 Ga. App. 441, 442 (390 SE2d 659) (1990) (citation, punctuation and emphasis omitted). In accord with this principle, we have held that “OCGA § 13-4-62 contains no express statutory requirement for restoration as a condition precedent to rescission for nonperformance.” Id.

It is hard to discern from the contract exactly what restoration would have placed Cox in its pre-contract position. Before entering the contract, Radio Perry had “must carry” status requiring Cox to carry WPGA’s signal. When Radio Perry sought to terminate the contract, it still had “must carry” status, as determined by the FCC. Consequently, at the time Radio Perry sought to terminate the contract, the contract had effected no change in the parties’ obligations regarding carriage. Their positions at that point remained the same.

The trial court, in granting the motion to dismiss, read the contract to demonstrate that Cox had paid Radio Perry $120,000 during the course of the contract and that Radio Perry should have restored these payments. Cox argues in its appellate brief that it paid this amount to Radio Perry, but it cites to nothing in the record to support this statement. And the section of the contract on which the trial court relied for this finding does not show that Cox paid Radio Perry anything; it merely provided that Cox was obligated to make certain license payments to Radio Perry if it remained a “Top-4” station. Moreover, the contract contains a discrepancy regarding the period during which any such payments would be made. The language of the contract creates doubt concerning what, if any, payments Cox made to Radio Perry thereunder, and what value, if any, Cox got in return. At the motion to dismiss stage this doubt must be resolved in Radio Perry’s favor. See Scouten, 283 Ga. at 73 (1).

Construing the allegations of the complaint most favorably to Radio Perry, especially under notice pleading, it is possible that Radio Perry could introduce evidence within the framework of the complaint excusing it from making restoration as a requirement for rescinding the contract under OCGA § 13-4-62. For this reason, Radio Perry’s failure to offer restoration does not warrant dismissal of its declaratory judgment action. See Scouten, 283 Ga. at 73 (2); Kaplan v. Sanders, 237 Ga. 132, 134 (1) (227 SE2d 38) (1976).

We are not persuaded by Cox’s other arguments in support of the dismissal of the declaratory judgment action. Cox argues that, under the principle of res judicata, the rulings in the earlier proceedings bar this action. None of those earlier proceedings, however, addressed the issue of whether Radio Perry’s September 23, 2011 letter effected a unilateral rescission of the contract under OCGA § 13-4-62. Cox also argues that Radio Perry waited too long to try to rescind the contract. But the alleged breach upon which it bases its claim of rescission occurred in June 2011, only three months before Radio Perry notified Cox that it was terminating the contract.

Radio Perry’s characterization of its September 23,2011 letter as a “termination” rather than a “rescission” does not require a different result. Our decision in Southern Prestige Plomes, 243 Ga. App. 412, does not hold that a letter that uses the word “termination” cannot be a unilateral rescission of a contract. Rather, in finding no unilateral rescission in that case, we also cited the fact the letter “plainly indicate[d] that the subject of rescission was under negotiation.” Id. at 417 (4). It is true, as the dissent points out, that the decision in Mayor & City of Douglasville, 175 Ga. App. 434, recognizes a distinction between terminating a contract and rescinding a contract. But that decision, which is physical precedent only, also recognizes that these terms are commonly used in place of each other. Id. at 436 (1), n. 2. The terms “rescission” and “termination” could be co-extensive under certain circumstances, such as when no payment has been made that could be restored. Given our equitable, rather than technical, application of the restoration requirement, see Intl. Software Solutions, 194 Ga. App. at 442, we cannot say, at this point in the litigation, that Radio Perry would be incapable of presenting evidence that such circumstances obtain here.

We acknowledge, as Cox argues, that “[rescission, as a forfeiture of rights under an otherwise valid contract, is not favored under the law.” Lehman v. Keller, 297 Ga. App. 371, 373-374 (2) (677 SE2d 415) (2009) (citation and punctuation omitted). But it is also true that

it is the rare case in which a motion to dismiss for failure to state a claim, as opposed to a motion for summary judgment, will provide an appropriate procedural device for securing summary adjudication of the issues raised in a complaint, given that in order to prevail on a motion to dismiss the defendant must show that the plaintiff could not possibly introduce evidence within the framework of his complaint sufficient to sustain a grant of the requested relief.

Consolidated Govt. of Muscogee County and/or Columbus v. Williams, 184 Ga. App. 815, 818 (363 SE2d20) (1987) (citation and punctuation omitted) (on motion for rehearing). Because Cox has not met this burden, we must reverse the grant of the motion to dismiss.

2. Continuing injunctive relief.

Radio Perry argues that the trial court erred in not granting its request for a continuing injunction (although the trial court subsequently did grant its request for an injunction pending appeal). The trial court based its ruling on its conclusion that, “even if ‘rescission’ were authorized under the facts alleged in the Complaint, any such rescission of the [contract] would not give [the trial court] authority to order Cox to keep Radio Perry on its system.” The trial court reasoned that the injunctive relief sought by Radio Perry would require the trial court to interpret federal “must carry” regulations, something outside the trial court’s jurisdiction.

The trial court, however, has the jurisdiction to continue the injunction prohibiting the enforcement of the contract provision allowing Cox to terminate carriage while the parties litigate the declaratory judgment action concerning the contract’s validity. Such a ruling would not require the trial court to determine the impact of rescission on Radio Perry’s “must carry” or “retransmission consent” status. To the contrary, as the FCC made clear, matters regarding the contract’s validity and the enforcement of its terms fell outside of the FCC’s purview. Accordingly, we vacate that portion of the order denying the continuing injunctive relief and remand the case for the trial court to determine whether such relief is appropriate, in light of our opinion.

Judgment vacated in part and reversed in part, and case remanded.

Phipps, C. J., Barnes, P. J., and Ellington, P. J., concur. Doyle, P. J., Boggs and Branch, JJ., dissent.

DOYLE, Presiding Judge,

dissenting.

The majority reverses the trial court’s order dismissing Radio Perry’s complaint for declaratory judgment, concluding that Radio Perry could introduce evidence within the framework of the complaint sufficient to support its claim for rescission under OCGA § 13-4-62. Because I do not believe that Radio Perry made a timely attempt to rescind the contract, I respectfully dissent.

1. “A breach of a contract as to a matter so substantial and fundamental as to defeat the object of the contract may authorize a rescission of the contract by the opposite party.’ ” “As a general rule, rescission must occur prior to, and as a condition precedent to, the bringing of an action; it is too late to claim rescission by asserting it for the first time in the pleadings.”

The September 23, 2011 letter from Radio Perry to Cox specifically states that it “[was] intended as formal notice of termination of the [contract]” based on Cox’s substantial and material breach thereof. The letter further states that

Decided July 16, 2013

Reconsideration denied July 31, 2013

James, Bates, Brannan & Groover, Thomas C. James III, G. Grant Greenwood, for appellant.

Dow Lohnes, Thomas M. Clyde, Martin Snow, Robert R. Gunn II, for appellee.

you are notified that based upon [your] material and substantial breaches ... Radio Perry takes the position that the contract referred to above is terminated and at an end. See Mayor & City of Douglasville v. Hildebrand. [] We do not believe that it is necessary to offer to restore the parties to their original position since we are terminating a contract. However, we also reserve our right to damages and these will more than offset any claims of “restoration.”

Radio Perry unequivocally and explicitly stated that the letter was intended to operate as a termination, and at no point does the letter even mention rescission. Further, Radio Perry cites therein to Mayor & City of Douglasville, a case which recognizes the distinction between terminating a contract that has been substantially performed, as had the contract at issue in this case, and rescission. Therefore, Radio Perry’s argument that it can pursue a claim for rescission fails, and I would affirm the trial court’s order granting Cox’s motion to dismiss.

2. Because I would affirm the trial court’s dismissal of Radio Perry’s complaint, I would also affirm the denial of Radio Perry’s request for a continuing injunction.

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

        Mayor & City of Douglasville v. Hildebrand, 175 Ga. App. 434, 436 (1) (333 SE2d 674) (1985) (physical precedent only).

        Wender & Roberts, Inc. v. Wender, 238 Ga. App. 355, 361 (5) (518 SE2d 154) (1999).

       (Emphasis supplied.)

       175 Ga. App. at 436 (1).

       (Emphasis supplied.)

       See Southern Prestige Homes v. Moscoso, 243 Ga. App. 412, 416-417 (4) (532 SE2d 122) (2000) (holding that a letter stating that parties “have agreed to terminate the contract. . . cannot be said, as a matter of law, to be a unilateral recission”).

        Mayor & City of Douglasville, 175 Ga. App. at 436 (1), n. 2.