text:
    A15A0711.
    TUGGLE v. ROSE et al.
    (773 S.E.2d 485)
   McFadden, Judge.

Harriet Tuggle, a teacher at a Fulton County middle school, appeals the denial of her motion for summary judgment on official immunity grounds in this assault and battery action brought by a former student, P. R., and his parents. Tuggle argues that because the plaintiffs have presented insufficient evidence to rebut her direct evidence of a lack of malice, she was immune from suit and entitled to summary judgment. We agree and therefore reverse.

1. Factual background.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.

Griswold v. Collins, 318 Ga. App. 556, 557 (734 SE2d 425) (2012) (citation omitted). Viewed most favorably to the plaintiffs, the evidence shows that, in 2012, P. R. was a student in a seventh-grade language arts class taught by Tuggle. In February 2012, P. R. asked Tuggle a question about a project he was working on. Tuggle answered him, and he returned to his seat. P. R. approached Tuggle again, while she was checking work at another student’s desk, because P. R. felt she had not answered his question. Tuggle became angry and said, “Oh, my God, child. Just follow me.” She grabbed P. R. and put him in a “headlock”: she extended her arm all the way around his neck, resting her hand on the back of his neck, so that his head was under her arm. Tuggle walked P. R. around the room as she continued to go desk by desk, checking the work of other students. P. R.’s head was in front of Tuggle’s body, his body was behind, and he was forced to hunch over as she walked him through the rows of desks. Initially, Tuggle’s grip was pretty loose, but it became tighter as they walked between the rows of desks, until it became “pretty tight.” It did not become so tight that Tuggle pulled P. R. over.

When she grabbed him, Tuggle handed P. R. his clipboard with his paper and told him to work. P. R. tried to complete his homework for the next day, but he could only hold the clipboard in front of him with one hand and read the assignment. According to P. R., Tuggle let him go when she was “finished” and he walked back to his seat. He did not have any way of knowing how long she held him because he did not look at a clock, but it “felt like forever.” Afterward, P. R.’s neck felt “a bit weird.”

Tuggle described the interaction as her putting her arm around P. R. because she did not want him to leave her presence until she could answer his question. She testified that she held P. R. less than 30 seconds. She denied intending to embarrass P. R. or to hurt him.

Tuggle moved for summary judgment on the ground that she was entitled to official immunity. The trial court conducted a hearing, at which Tuggle reasserted an objection she had made in her reply to the plaintiff’s brief in opposition to summary judgment. Specifically, Tuggle objected on hearsay grounds to the plaintiffs’ reliance on summaries of statements from P. R.’s classmates that were included in an investigative report prepared by a school district investigator. At the hearing, she also objected to the consideration of P. R.’s affidavit testimony that the incident lasted 20 minutes, arguing that the affidavit testimony contradicted his deposition testimony on the issue. The trial court denied the motion for summary judgment but did not specifically address these objections.

2. Evidentiary objections.

Tuggle reasserts the evidentiary challenges she raised in the trial court. The plaintiffs rely on that evidence to show the duration of the headlock, which, they claim, is circumstantial evidence of Tuggle’s malice. We agree with Tuggle that neither piece of evidence is admissible to show the duration of the encounter.

In his affidavit, P. R. testified that Tuggle restrained him for approximately 20 minutes. In his deposition, he testified that he did not have any way of knowing how long she held him because he did not look at a clock, but it “felt like forever.”

It is well established that on summary judgment a party’s self-contradictory testimony, if unexplained, must be construed against the party-witness, even when the party-witness is the respondent rather than the movant. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).

Walker v. Brannan, 243 Ga. App. 235, 237 (533 SE2d 129) (2000). P. R.’s affidavit testimony that the headlock lasted 20 minutes contradicts his deposition testimony that he did not have any way of knowing how long Tuggle held him, and he has not offered any reasonable explanation for the contradiction. See Prophecy, supra, 256 Ga. at 30 (2). Therefore, we must construe his testimony against him and reject his testimony that the headlock lasted 20 minutes.

The plaintiffs rely on the statement of another student to support the contention that Tuggle restrained P. R. for 20 minutes. The school district investigator prepared a report about the incident, which included summaries of statements made by P. R.’s classmates. The report was attached to the investigator’s affidavit, which Tuggle filed with her motion for summary judgment. In the summary of the statement of one of the students, the investigator reported that the student described Tuggle restraining P. R. for about ten minutes. (Although the plaintiffs refer generally to the students' statements, only one of the summaries of the classmates’ statements includes any information about the duration of the headlock.)

The plaintiffs argue that the student’s statement is admissible under OCGA § 24-8-803 (6), the business records exception to the hearsay rule. But hearsay within hearsay is admissible only if “each part of the combined statements conforms with an exception to the hearsay rule.” OCGA § 24-8-805. Assuming without deciding that the investigator’s report attached to her affidavit was admissible under the business records exception, that exception only overcame one layer of hearsay. See In the Interest of D. E., 313 Ga.App. 414, 415 (721 SE2d 627) (2011). The plaintiffs do not cite any other exception to overcome the second layer of hearsay, the summary in the report of the student’s statement to the investigator. Thus, the student’s statement is not admissible.

3. Official immunity.

The parties agree that Tuggle is entitled to official immunity unless she acted with

actual malice or with intent to cause injury. 1983 Ga. Const., Art. I, Sec. II, Par. IX (d). “Actual malice,” as that term is used in the constitutional provision, denotes “express malice,” i.e., “a deliberate intention to do wrong,” and does not include “implied malice,” i.e., the reckless disregard for the rights or safety of others. A “deliberate intention to do wrong” such as to constitute the actual malice necessary to overcome official immunity must be the intent to cause the harm suffered by the plaintiffs.

Murphy V. Bajjani, 282 Ga. 197, 203 (4) (647 SE2d 54) (2007) (citation omitted). Our Supreme Court has set a high bar for demonstrating actual malice so as to overcome a defendant’s entitlement to official immunity. D. H. v. Clayton County School Dist., 52 FSupp.3d 1261, 1297-1298 (III) (B) (6) (N.D. Ga. 2014).

Relying on Griswold v. Collins, supra, 318 Ga. App. 556, the plaintiffs argue that Tuggle’s holding P. R. in a headlock for a substantial period of time, in front of other students, while knowing that her actions violated Fulton County policies, supports an inference that she had an intent to harm P. R. and they point to what they characterize as her later denials and equivocations as evidence that she knows she committed a wrongful act.

First, we observe that the plaintiffs have presented no evidence that Tuggle’s actions violated Fulton County policies. Although they reference a Fulton County policy against corporal punishment, they concede that Tuggle’s motivation was not disciplinary. Nor have they cited to any record evidence of denials and equivocations. To the extent that they argue that Tuggle “refus [ed] to acknowledge any incident at all until pressed by her principal,” and that this is evidence of her intent, we disagree. Tuggle explained at her deposition that when questioned by her principal and assistant principal a couple of weeks after the incident, she did not recall it. She thought about it and later that day told them about touching P. R., “the only incident [she] could come up with.” In sum, the only evidence of malice the plaintiffs have presented is that Tuggle held P. R. in a headlock for a period of time that “felt like forever,” in front of other students. We do not believe that this evidence creates a jury question on the issue of malice or intent to harm.

In Griswold, we found that questions of fact as to a teacher’s entitlement to official immunity precluded her from summary judgment on a second-grade student’s assault andbattery claims. 318 Ga. App. at 556. We held that the evidence, viewed most favorably to the plaintiff, showed that as the student was returning to her seat, the teacher summoned her and struck her bare leg with two rulers, leaving a red mark or bruise; that when the student approached the teacher with some schoolwork, the teacher told the student that her answer to one of the problems was incorrect and then grabbed the girl’s shirt collar and pulled it tight, choking her and leaving red marks on her neck; and that the teacher made the student stand in a corner for a “time out” after the girl began dancing in class, and at the end of the “time out,” the teacher grabbed the girl’s shirt collar, twisted it, and pulled the girl forward, choking her, snapping her necklace and leaving red marks on her neck. Id. at 557 (1). We determined that

[w]hile a jury would not be compelled to accept [the student’s] version of the events or to find that the nature of those actions reflected actual malice or wilfulness on [the teacher’s] part, given the girl’s depiction of [the teacher’s] behavior, a jury could find that she deliberately intended to do wrong or to injure the girl.

Id. at 559 (2) (a) (emphasis in original). In other words, we found that the very nature of the acts as described by the plaintiff — the unprovoked choking and striking with rulers of a second-grader, sufficient to leave visible injuries — was circumstantial evidence of the teacher’s intent to deliberately hurt the student. We do not find that the nature of the acts described by P. R. is circumstantial evidence of Tuggle’s malice or intent to deliberately hurt him. According to P. R., Tuggle held him in a headlock for a significant period of time, but her grip was initially “pretty loose,” although it got tighter but not tight enough to pull him over; and Tuggle told P. R. to work on his schoolwork while they walked around the room, indicating that she did not believe she held him in a way that immobilized him; P. R. was even able to read the assignment; P. R. was not injured, although his neck felt a “bit weird.”

Decided July 7, 2015 —

Reconsideration denied July 27, 2015 —

Nelson, Mullins, Riley & Scarborough, Neeru Gupta, Brandon O. Moulard, for appellant.

Detling Cole, Chalmer E. Detling, Mackenzie C. Cole, for appellees.

We find that this case is more akin to Butler v. McNeal, 252 Ga. App. 68 (555 SE2d 525) (2001), than to Griswold. In Butler, we concluded that the record lacked evidence showing that the teacher acted with actual malice or that she intended to injure the student, even though we accepted as true the student’s account that the teacher purposefully pulled the student’s chair out from under him, causing the student to fall to the ground. 252 Ga. App. at 68-70. See also Jordan v. Blackwell, No. 5:06-cv-214, 2008 U. S. Dist. LEXIS 75046, at *33 (III) (B) (2) (M.D. Ga., Sept. 29,2008) (applying Georgia law to determine that school resource officer’s actions of putting fighting student in a choke hold and walking her to principal’s office did not give rise to a showing of actual malice, as no evidence suggested that he intended the harm that may have resulted to the student). Here, as vsxButler, the ambiguous behavior within the classroom is not circumstantial evidence of malice or an intent to deliberately harm that would contradict Tuggle’s direct evidence that she did not act with malice or an intent to deliberately harm. Although the evidence may demonstrate Tuggle’s “frustration, irritation, and possibly even anger [, that] is not sufficient to penetrate official immunity.” Tittle V. Corso, 256 Ga. App. 859, 862 (1) (569 SE2d 873) (2002) (citation and punctuation omitted). Accordingly, Tuggle is entitled to summary judgment.

Judgment reversed.

Ellington, P. J., and Dillard, J., concur.


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A15A0120.
    ANDERSON ANESTHESIA, INC. v. ANDERSON.
    (776 S.E.2d 647)
   McMlLLIAN, Judge.

Anderson Anesthesia, Inc. (“AA”), an Alabama corporation, appeals the trial court’s order dismissing its petition filed pursuant to the Uniform Interstate Family Support Act (the “UIFSA”), OCGA § 19-11-100 et seq., to stay enforcement of an “Income Assignment Order” (the “Income-Withholding Order”) issued by a Louisiana court and served on Premier Anesthesia, LLC (“Premier”), a Georgia limited liability company, seeking to withhold a portion of AA’s income. We affirm for the reasons set forth below.

“On appeal, we review a trial court’s decision to grant or deny a motion to dismiss de novo.” Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423 (762 SE2d 138) (2014). And “[i]n reviewing the grant of a motion to dismiss, an appellate court must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant’s favor.” (Citation and punctuation omitted.) Ewing v. City of Atlanta, 281 Ga. 652, 653 (2) (642 SE2d 100) (2007).

This matter arises out of the divorce of Anne E. (“Anne”) and Warren Jeff Anderson (“Warren”). The Income-Withholding Order recites that Anne was awarded support in the divorce and that Warren became delinquent in making support payments. The order directs that Premier withhold 50% of any disposable income, “including but not limited to, wages, salary, commission, [and] compensation as an independent contractor,” from the income Premier owes to Warren or AA *to satisfy Warren’s ongoing support obligations and support arrearages.

After the Income-Withholding Order was served on Premier, AA filed a petition to stay its enforcement, asserting that the Louisiana court lacked authority or a legal basis to issue an order seizing its income because the court never obtained personal jurisdiction over AA. In response, Anne, a Louisiana resident, filed a special appearance answer, denying that the Georgia trial court had personal jurisdiction over her. Anne also moved to dismiss the petition on the ground that it failed to state a claim upon which relief can be granted and argued in her briefing in support of the motion to dismiss that the Georgia trial court lacked both subject matter jurisdiction over the matter and personal jurisdiction over her.

Following a hearing, the Georgia trial court issued an order on February 21, 2014, in which it questioned whether AA met the UIFSA’s requirements for contesting the Income-Withholding Order in Georgia (the “First Order”). Under the UIFSA, “[a]n obligor may contest the validity or enforcement of an income-withholding order issued in another state and received directly by an employer in Georgia ... in the same manner as if the order had been issued by a tribunal of Georgia.” (Emphasis supplied.) OCGA § 19-11-155 (a). For purposes of the UIFSA, the term

“[o]bligor” means an individual or the estate of a decedent that:
(A) Owes or is alleged to owe a duty of support;
(B) Is alleged but has not been adjudicated to be a parent of a child;
(C) Is liable under a support order; or
(D) Is a debtor in a proceeding under Part 7 of this article.

(Emphasis supplied.) OCGA § 19-11-101 (17). The Georgia trial court noted that “the entity contesting the validity of the income assignment order is an Alabama [Corporation[,] not an individual,” and stated that because no cases had addressed this issue, it was “reluctant to expand the definition of an obligor to also include corporations.”

The First Order also stated that the Georgia trial court nevertheless attempted to confer with the Louisiana court that issued the Income-Withholding Order pursuant to the provisions of the UIFSA, OCGA § 19-11-136, but was unable to reach the Louisiana judge presiding over the matter. As a result, the Georgia trial court chose to stay the case for a period of two weeks to allow AA to file “appropriate [m]otions in the Louisiana [c]ourt to have the [Income-Withholding Order] set aside since it claims that the Louisiana [c] ourt was without jurisdiction to enter the order against it in the first instance.” But if AA failed to file such motions within that period, the Georgia trial court stated it would dismiss AA’s petition to stay enforcement of the Income-Withholding Order.

Four months later, on June 19, 2014, the Georgia trial court issued a final order dismissing AA’s petition, noting that AA had failed to provide the court with any evidence “that it has initiated any motion or made any type of submission to the Louisiana [c]ourt seeking to have the [Income-Withholding Order] set aside” (the “Final Order”). In reaching this judgment, the Georgia trial court made no further findings of fact or conclusions of law.

On appeal, AA asserts that the Georgia trial court erred (1) in concluding that it had no subject matter jurisdiction to inquire whether a Louisiana income support order qualified for full faith and credit in Georgia; (2) in concluding that it had no personal jurisdiction over a Louisiana resident attempting to enforce an illegal foreign support order in Georgia; and (3) in entering a final order without any supporting evidence.

We note, however, that the Georgia trial court never expressly concluded that it lacked subj ect matter jurisdiction to consider whether the Income-Withholding Order was entitled to full faith and credit in Georgia. Rather, in the First Order, the Georgia trial court questioned whether AA had standing to contest the Income-Withholding Order in Georgia under the UIFSA, and in the Final Order, the Georgia trial court dismissed AA’s petition after it failed to establish that it had taken action in Louisiana to contest the Income-Withholding Order.

We find that the Georgia trial court was correct to question AA’s standing to file the petition in this case. Under Georgia’s UIFSA, only an individual or an estate meeting the stated criteria may petition a Georgia court to contest an income-withholding order issued by another state. AA expressly filed its petition under the UIFSA, but the allegations of the petition demonstrate that AA does not fall within the statutory definition of an obligor under the Act. That definition specifically uses the term “individual” and in construing the statute, “we must presume that the legislature’s use of that term was a matter of considered choice.” (Citation and punctuation omitted.) Lakeview Behavioral Health System, LLC v. UHS Peachford, LP, 321 Ga. App. 820, 823 (1) (743 SE2d 492) (2013). If the legislature had intended the term “obligor” to include something other than an individual human being, it could have used the term “person,” which the UIFSA defines as “an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.” OCGA § 19-11-101 (19). Accordingly, we find that the term “obligor” under the UIFSA does not include a corporation.

AA asserted in its original petition to stay and the two subsequent amendments to that petition that it is an Alabama corporation and “an independent legal entity.” And, in fact, AA asserted in its “2nd Amended Petition to Stay Enforcement of Foreign Order and Set Aside Foreign Order” that it “is neither the ‘obligor’ nor bis ‘estate,’ ’’citingOCGA § 19-11-101. Therefore, although Warren would qualify as an “obligor” under the Act, with standing to contest the Income-Withholding Order in this case, AA, a self-styled “independent” corporation, does not. Accordingly, the Georgia trial court did not err in dismissing AA’s petition because even when taken as true, the allegations in the petition, as amended, establish that AA lacks standing to contest the Income-Withholding Order under the UIFSA. See, e.g., Jurden v. HSBC Mortgage Corp., 330 Ga. App. 179, 180 (1) (765 SE2d 440) (2014) (dismissal proper where allegations of complaint show plaintiff lacked standing) (physical precedent only); Wylie v. Denton, 323 Ga. App. 161, 167-168 (1) (746 SE2d 689) (2013) (same).

AA argues that the Georgia trial court nevertheless should have considered the validity of the Income-Withholding Order under OCGA § 9-12-16 and/or the provisions of the Uniform Enforcement of Foreign Judgments Law (“UEFJL”), OCGA § 9-12-130 et seq. However, AA expressly invoked the provisions of the UIFSA in filing all three versions of its petition. And because AA filed the petitions without standing, the Georgia trial court had no jurisdiction over them and no basis to consider the validity of the Income-Withholding Order. Cf. Perdue v. Lake, 282 Ga. 348, 348 (1) (a), 349 (2) (a) (647 SE2d 6) (2007) (“As a general rule, standing must be determined at the time at which the plaintiff’s complaint is filed in order to place an actual case or controversy within the purview of the court,” and the Georgia trial court had no jurisdiction over complaint filed without standing); Julian v. Brooks, 269 Ga. 167, 167 (495 SE2d 569) (1998) (where appellants lack standing to invoke the jurisdiction of the court, dismissal was proper). Moreover, we note that Anne never sought to enforce the Income-Withholding Order under the provisions of the UEF JL, but rather served the order on Premier under the provisions of the UIFSA.

Decided June 9, 2015 —

Reconsideration denied July 28, 2015.

David E. Oles, Sr., for appellant.

Boyd Collar Nolen & Tuggle, Brooke M. French, Connie PL. Buffington, for appellee.

Judgment affirmed.

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

       This is the second appearance of this case before this Court. This Court dismissed an earlier appeal by AAbecause the Georgia trial court had not issued a final order in the case and AA had failed to follow the procedures for an interlocutory appeal; thus, this Court lacked jurisdiction to consider the appeal. See Order dated May 20, 2014, Case No. A14D0344.

       Although the parties submitted affidavits and other documentation in briefing the motion to dismiss, the Georgia trial court’s order does not indicate that it considered such evidence in ruling on the motion; rather, it states that it based its ruling on the pleadings and arguments of the parties. Thus, we review the Georgia trial court’s order as a ruling on a motion to dismiss.

       For clarity, we will refer to the Andersons, individually, by their first names.

       The record indicates that Warren formed AA for tax purposes to receive income he earned as an independent contractor.

       The Georgia trial court also found that the mere filing by Anne of an income assignment order in Georgia did not give the court personal jurisdiction over her, citing OCGA § 19-11-133 (a). That provision states that “[p] articipation by a petitioner in a proceeding under this article before a responding tribunal, whether in person, by private attorney, or through services provided by the support enforcement agency, does not confer personal jurisdiction over the petitioner in another proceeding.” But given our holding in this case, we need not reach this issue.

       AAalso submitted affidavits signedby Warren, averring that it is a “business corporation, with a separate identity and existence” and that it has no arrearage of child support to Anne. However, the Georgia trial court need not have considered this affidavit in dismissing AA’s petition.

       Although Anne’s briefing in support of her motion to dismiss does not expressly raise the issue of standing under the UIFSA, the transcript of the hearing on that motion indicates that the issue was raised hy the Georgia trial court and addressed by the parties at that time. Additionally, in an affirmative defense, Anne asserted that AA failed to comply with the requirements of the UIFSA in bringing the action.


author: Boggs, Judge.

text:
    A15A0265.
    BROWN v. DeKALB COUNTY et al. LITTLE et al. v. DeKALB COUNTY et al.
    A15A0267.
    (777 S.E.2d 23)
   Boggs, Judge.

Quintez Brown and Kimberly Little, individually, and as legal guardian and natural parent of her three minor children, filed personal injury actions against DeKalb County (“the Count/’) and others as a result of a collision involving a DeKalb County fire truck. On appeal, they contend that the trial court erred by granting summary judgment in favor of the County. For the reasons explained below, we disagree and affirm.

On appeal from the denial 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.

(Citation and punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010); see OCGA § 9-11-56 (c).

So viewed, the evidence shows that on May 3, 2011, Brown was driving a car in which Little and her three children were passengers when it collided with a DeKalb County Fire Department truck. Brown and Little testified that they never saw or heard the fire truck before the collision. The driver of the fire truck never saw Brown’s car before the collision, while two fire truck passengers saw it just before the impact and had no time to give a warning.

The testimony conflicts as to whether the car driven by Brown struck the fire truck as Brown entered the intersection with a green light or whether the fire truck struck Brown as it entered the intersection against a red light. Brown and Little claim the fire truck struck them, while all other witnesses stated that the car driven by Brown struck the fire truck. Little testified that the car was at a standstill immediately before the impact, while Brown testified that he had just started to proceed when the fire truck struck his car. According to the driver and two passengers of the fire truck, the fire truck entered the intersection with its lights and siren activated when all traffic was stopped and the intersection was clear. An accident reconstruction expert averred in an affidavit that, based upon data retrieved from Brown’s car, it traveled at a constant speed of 29 mph for 213 feet without any braking immediately prior to impact.

It is undisputed that at the time of the accident, the fire truck was responding to an emergency call and was blowing an air horn at the time it entered the intersection. Two firefighters averred in an affidavit that the flashing red emergency lights on the fire truck “were visible from a much greater distance than 500 feet” at the time of the accident. Witnesses disagreed about how hard it was raining at the time of the accident. Brown and Little both testified that it was “pouring down raining,” while the fire truck driver testified that it was “slightly raining.”

Evidence regarding the speed of the fire truck at the time of the impact also conflicts. Occupants of the fire truck and an independent witness testified that the fire truck was moving at a slow rate of speed at the time of the impact. While Little did not see the fire truck before the impact, she testified that she was “guesstimating” that it was traveling 60 to 70 mph based upon how the impact felt and the fact that the car’s air bag deployed. She did not see the damage to the fire truck after the collision and acknowledged that she did not have any training in engineering or accident reconstruction and had never before been hit by a vehicle traveling 60 to 70 mph.

Brown and Little contend on appeal that a jury should be allowed to decide the following issues: (1) “whether it was reasonable for the emergency vehicle to have entered the intersection when the light was red when there was a torrential rain at the time of the collision”; (2) “whether the DeKalb County fire truck entered the intersection with their audible signal and flashing red lights”; and (3) whether the “fire truck was authorized to enter [ ] the intersection when the light was red based upon the exception provided under... OCGA § 40-6-6.” We disagree.

We start our analysis with a well-established principle: “That an accident occurred and a plaintiff suffered injury establishes no basis for recovery unless the plaintiff comes forward with evidence showing that the accident was caused by the defendant’s negligence.” (Citations and punctuation omitted.) Morton v. Horace Mann Ins. Co., 282 Ga. App. 734, 736 (1) (639 SE2d 352) (2006). In order to examine whether appellants presented evidence that the driver of the fire truck was negligent, we must examine the following provisions of OCGA § 40-6-6:

(a) The driver of an authorized emergency vehicle or law enforcement vehicle, when responding to an emergency call, when in the pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this Code section.
(b) The driver of an authorized emergency vehicle or law enforcement vehicle may: ... (2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation; . . .
(c) The exceptions granted by this Code section to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal and use of a flashing or revolving red light visible under normal atmospheric conditions from a distance of 500 feet to the front of such vehicle. . . .
(d) (1) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons.
(3) The provisions of this subsection shall apply only to issues of causation and duty and shall not affect the existence or absence of immunity which shall be determined as otherwise provided by law.

The direct evidence before the trial court shows that the fire truck was responding to an emergency call while using an audible signal and flashing red emergency lights visible from a distance of 500 feet at the time of the accident. Brown and Little assert that their testimony that it was “pouring down raining” and that they failed to see or hear the fire truck before the collision creates genuine issues of material fact regarding whether the privilege afforded by OCGA § 40-6-6 could be exercised. Again, we disagree.

In ruling on a motion for summary judgment, a finding of fact that may be inferred from, but is not demanded by, circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists, provided that the circumstantial evidence may be construed consistently with the direct evidence.

(Citation and punctuation omitted.) Brown v. GeorgiaCarry.Org, Inc., 331 Ga. App. 890, 894 (770 SE2d 56) (2015). The fact that Brown and Little did not see or hear the fire truck before the collision and that it was raining provides circumstantial evidence to support an inference that the fire truck may not have been using an audible signal and flashing red lights, but this inference is not demanded from their testimony. Because Brown and Little’s testimony can be construed consistently with the direct evidence that the fire truck was using an audible signal and flashing red lights visible from a distance of 500 feet, it is insufficient to create a genuine issue of material fact on the applicability of OCGA § 40-6-6. See id. at 895. Moreover, “[n]egligence is not to be presumed, but is a matter for affirmative proof. In the absence of [some] affirmative proof of negligence, we must presume performance of duty and freedom from negligence.” (Citation and punctuation omitted.) Purvis v. Steve, 284 Ga. App. 116, 118 (1) (643 SE2d 380) (2007).

Little’s testimony that the fire truck was traveling 60 to 70 mph at the time of impact also fails to create a genuine issue of material fact as to negligence on the part of the County. Lay opinion lacking a proper foundation cannot be considered when ruling upon a summary judgment motion. Jordan v. Atlanta Replex Corp., 228 Ga. App. 670, 674 (a) (492 SE2d 536) (1997) (physical precedent only). OCGA § 24-7-701 (a) (1) provides that a lay “witness’s testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are . . . [r]ationally based on the perception of the witness.” Here, Little’s testimony that the fire truck was traveling 60 to 70 mph could not be rationally based on her perception of how the impact felt. She acknowledged that she had never before been hit by a car traveling at that speed and that she was not an expert in accident reconstruction.

In a case decided under Ga. Code § 38-1708, recodified in 1981 as OCGA § 24-9-65, this court noted that “[e]vidence as to speed based only on the feeling of impact has been held inadmissible. [Cit.]” Boatner v. Sims, 115 Ga. App. 284, 286 (5) (154 SE2d 282) (1967). We therefore held that a plaintiff’s testimony about speed formed solely from the force of the impact lacked a proper foundation and could not be considered. Id.

Decided July 28, 2015.

Nathaniel J. Middleton, James O. Greason, for appellants.

Levy & Pruett, Susan J. Levy, for appellees.

While lay opinion testimony about the speed of a vehicle is generally “quintessential Rule 701 opinion testimony,” Asplundh Mfg. Div. v. Benton Harbor Engineering, 57 F3d 1190, 1197 (II) (A) (3rd Cir. 1995), superseded on other grounds, Estate of Knoster, 200 Fed. Appx. 106, 111, n. 3 (3rd Cir. 2006), such testimony is nonetheless “inadmissible absent an adequate factual foundation demonstrating a rational link between the witness’ observations and her ultimate testimonial conclusions.” Felton v. Felton, 1999 U. S. App. LEXIS 12081 at *7 (II) (4th Cir. 1999). Here, no rational link exists between Little’s perception of the force of the impact and her testimony about a particular speed for a fire truck that she never saw in motion.

Based upon the direct evidence that the fire truck was authorized under OCGA § 40-6-6 to enter the intersection against the red light and the absence of any evidence showing negligence on the part of the fire truck operator, we affirm the trial court’s grant of summary judgment to the County.

Judgment affirmed.

Doyle, C. J., and Phipps, P. J., concur.

       This former Code section provided: “Where the question under examination, and to he decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor.”

       Our opinions in Western & Atlantic R. v. Thompson, 38 Ga. App. 599 (144 SE 831) (1928), and Rentz v. Collins, 51 Ga. App. 782, 783 (3) (181 SE 678) (1935) do not mandate a different result as they are factually distinguishable. In Western & Atlantic R., the lay witness saw the train after it struck him and observed “the distance the train ran after striking him before stopping.” 38 Ga. App. at 599. In Rentz, the witness’s testimony was based upon more than just how the force of the impact felt. Specifically, that the witness’s estimate of speed was based upon his familiarity with the speed of automobiles when he saw them running, the weight of his car which was struck by the defendant’s car, and the way the defendant’s car “dragged” his car after the collision. 51 Ga. App. at 783. In contrast, here, Little’s testimony was based solely upon how the collision felt in her chest.


author: McMillian, Judge.

text:
    A15A0381.
    SHELNUTT et al. v. THE MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH et al.
    (776 S.E.2d 650)
   McMillian, Judge.

Christopher Shelnutt and 49 other firefighters (the “Firefighters”) from the City of Savannah appeal the trial court’s grant of a motion to dismiss and motion for judgment on the pleadings filed by the Mayor and Aldermen of the City of Savannah (the “City”) and Stephanie Cutter, the Savannah city manager, as to their claims for breach of contract. The Firefighters asserted in their “First Amended and Recast Complaint” that the City’s written “Pay Policy” created a contract between the City and the Firefighters and that the City breached that contract by paying them less than they were owed under the terms of the Pay Policy.

In considering the trial court’s decision on a motion to dismiss and/or a motion for judgment on the pleadings, we apply a de novo review and thus “owe no deference to the decision of the court below.” Pryce v. Rhodes, 316 Ga. App. 523, 523 (729 SE2d 641) (2012) (motion for judgment on pleadings). See also Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423 (762 SE2d 138) (2014). Moreover, we must consider all well-pled material allegations on the Firefighters’ complaint as true, with all doubts resolved in their favor. Ewing v. City of Atlanta, 281 Ga. 652, 653 (2) (642 SE2d 100) (2007) (motion to dismiss); Early v. MiMedx Group, Inc., 330 Ga. App. 652, 654 (768 SE2d 823) (2015) (motion for judgment on the pleadings). “We may also consider any exhibits attached to and incorporated into the complaint and the answer, also construing them in the appellant’s favor.” Stafford v. Gareleck, 330 Ga. App. 757, 758 (769 SE2d 169) (2015) (motion to dismiss). See also Early, 330 Ga. App. at 654 (motion for judgment on the pleadings). Nevertheless, a court should not grant a motion to dismiss unless “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 [.]” (Citation omitted.) Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014). And “[a] motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment.” (Citation and punctuation omitted.) Sherman v. Fulton County Board of Assessors, 288 Ga. 88, 90 (701 SE2d 472) (2010).

The complaint alleges that the Firefighters are all supervisors with the City’s Bureau of Fire and Emergency Services, some of whom are classified as “exempt” for pay purposes and some of whom are classified as “non-exempt.” The City’s Pay Policy includes provisions outlining changes in compensation for employees when promoted to a higher position, and those provisions have undergone a number of revisions since 1998. From 1998 to November 2009, the Pay Policy provided, in pertinent part, that “[a]n employee promoted to a higher classification shall receive an increase of five percent above his/her current pay,” and “[w]hen the present rate of the promoted employee is five percent or more below the minimum of the new pay grade, he/she will receive the minimum of the new pay grade.” And during the same time period, the Pay Policy also provided that an individual promoted to an “exempt” supervisory position “shall receive an increase of 7.5% above his/her current pay,” with the qualification that if “the present rate of the promoted employee is 7.5% or more below the minimum of the new pay grade, he/she will receive the minimum of the new pay grade.” As of November 2009, the percentage pay increase for employees “promoted to a higher classification” was raised to ten percent “up to the maximum of the new pay range,” and the language providing for a 7.5% pay increase for “exempt” supervisory positions was deleted.

Additionally, as of July 2005, the Pay Policy was amended to include a provision that mandated a one-time promotional pay increase for an employee promoted to a supervisory position, whether exempt or nonexempt, to “a minimum of 5% above the highest paid employee to be supervised at the time of the promotion.” This language was removed from the Pay Policy in the November 2, 2009 revision but was reinserted in the September 8, 2013 revision of the Pay Policy.

The Complaint, as amended, alleges that each of the 50 Firefighters has received a promotion since 2002 but did not receive the pay increases outlined in the City’s Pay Policy. They assert that Cutter, or her designees, failed to enforce the City’s pay requirements as required by the Pay Policy, but rather “determine [d] pay based on personal favoritism and bias.”

In response, the City and Cutter rely on language that appears in all versions of the Pay Policy, which provides that “[e]xceptions to or interpretation of these rules and policies will be referred to the Human Resources Director and/or City Manager for resolution. The City Manager has the authority to make exception to these policies as deemed necessary.” They assert that this language demonstrates that the policies are discretionary and not enforceable contract terms.

The City and Cutter also cite disclaimer language found in the December 2004, the November 2006, and the January 2014 editions of the “City of Savannah Employee Handbook” (the “Handbook”), which they attached to their answer. Each version of the Handbook contains a “NOTICE TO ALL EMPLOYEES,” stating that the Handbook is

only a general guide to the City’s employment policies and to some of your benefits____It is informational only. From time to time, the City reviews its policies, procedures, and benefits and makes revisions based on the need for or desirability of changes. Thus, any policy, procedure, or benefit outlined in this handbook maybe modified, decreased, eliminated or increased at any time with or without advance notice. In addition, the City remains free to decide in all cases whether to apply the policies expressed herein to any particular set of circumstances.

The Handbook further provided that it “does not constitute an expressed or implied contract. The employee may separate from his/her employment at any time; the City of Savannah reserves the right to do the same.”

However, the December 2004 and November 2006 versions of the Handbook do not include or expressly incorporate the City’s Pay Policy. Rather, the Handbooks list a number of employment-related topics and for “specific information,” refer the employee to the City’s Pay Policy, which “[could] be found on the City’s P: drive,” as well as the Fair Labor Standards Act Handbook, which “[could] be found on the City’s Intranet or obtained through [the employee’s] department director.” The City and Cutter have not pointed us to any provision in either the 2004 Handbook and/or the 2006 Handbook expressly incorporating the Pay Policy into its terms, and we have found none. Moreover, none of the versions of the Pay Policy from November 2, 2002 through June 28, 2012 expressly incorporate or reference either the Handbook or its disclaimer language. However, the January 2014 version of the Handbook contains the September 8, 2013 version of the Pay Policy in full and no longer refers employees to the City’s P: drive for specific information.

1. In granting the City’s motion, the trial court treated the Pay Policy and the Handbook as one document, finding, for example, without citation or analysis, that the provision of the Pay Policy granting a promoted employee a raise of five percent above the highest paid employee to be supervised “was first incorporated into the ... Handbook” as of July 2005. Thus, the trial court relied on the disclaimer language of the Handbook in finding that “throughout the policy the City makes clear that this is not a contract, that the City remains free to decide whether to apply the policies to a particular set of circumstances and may modify, decrease, eliminate or increase any policy or benefit at any time without advance notice.” (Emphasis supplied.) And the trial court concluded that “the instant pay policy and employee manual are not a binding contract.”

However, we find no basis for treating the Pay Policy as part of the Handbook prior to January 2014, when the Handbook was expanded to include the Pay Policy within its terms. Prior to that time, the Handbook merely directed employees to refer to a digital version of the Pay Policy on the City’s hard drive for more information. Nor do we see any basis in the text for treating the Handbook and its disclaimers as part of the Pay Policy as neither document expressly incorporated the other. Thus, we conclude that the Handbook and the Pay Policy in this case must be considered separately, and we find that while the Handbook contains disclaimer language and states that it “does not constitute an express or implied contract,” the Pay Policy is not subject to these disclaimers. See Fulton-DeKalb Hosp. Auth. v. Metzger, 203 Ga. App. 595, 596-597 (2) (417 SE2d 163) (1992) (handbook in effect at the time of hiring controls, and disclaimers added to later version of the handbook do not alter the result).

2. We therefore must turn to the Pay Policy to determine whether the Firefighters can assert a contractual claim against the City based on its terms. The City asserts that the Pay Policy cannot constitute a contract because it does not involve “additional compensation” such as vacation pay, disability pay, severance pay, insurance, or retirement benefits, but instead addresses the City employees’ basic salary or pay, which it asserts can never give rise to a contractual claim. We disagree. The test in this case is not whether the Pay Policy addresses “additional compensation” as opposed to salary or wages. Rather, the test is whether the language of the particular Pay Policy at issue could give rise to a contractual claim by the Firefighters, or stated in the alternative, whether the allegations of the complaint disclose with certainty that the Firefighters would not be entitled to relief under any provable facts they could assert in support of their contractual claim.

From the documents provided in the record, it appears that the Firefighters’ employment with the City is terminable at will.* ***** The Handbook provides that an “employee may separate from his/her employment at any time; the City of Savannah reserves the right to do the same.” And the Pay Policy does not provide for a definite term of employment. Where no evidence shows that an employee was hired for a definite term, his or her employment is at-will. See Goddard v. City of Albany, 285 Ga. 882, 885 (3) (684 SE2d 635) (2009).

Although terminable-at-will employment does not give an employee a contractual right to remain employed, an at-will employment relationship can give rise to certain contractual rights. See Walker Elec. Co. v. Byrd, 281 Ga. App. 190,192 (635 SE2d 819) (2006); Brazzeal v. Commercial Cas. Ins. Co., 51 Ga. App. 471 (180 SE 853) (1935). “In a terminable-at-will employment contract the original terms for compensation are enforceable for that work actually performed under the contract.” (Citation and punctuation omitted.) Biven Software, Inc. v. Newman, 222 Ga. App. 112, 115 (2) (473 SE2d 527) (1996). “[UJnder such circumstances, the plaintiff [has] a right of action under the contract for the amount of earned [compensation] due him in accordance with the agreement.” (Citation and punctuation omitted.) Walker Elec., 281 Ga. App. at 192. And although in an at-will relationship, a promise of a future change in compensation generally “is unenforceable since neither party is bound to continue performance under the contract at all,” this rule does not apply to a promise of future compensation made at the beginning of the employment relationship. Such a promise “is enforceable, though it would not be if made pending the term or after performance was complete.” (Citation and punctuation omitted.) E. D. Lacey Mills, Inc. v. Keith, 183 Ga. App. 357, 361 (5) (359 SE2d 148) (1987) (holding that employer’s oral promise to pay an annual pre-tax bonus of a certain percentage of profits made at the beginning of employment was not unenforceable on the ground that it was an executory promise of future compensation, but was unenforceable because it violated the Statute of Frauds). The Supreme Court of Georgia has explained that “[t]o be enforceable, a promise of future compensation must be made at the beginning of the employment. However, the promise of future compensation must also be for an exact amount or based upon a formula or method for determining the exact amount of the [compensation].” (Citation, punctuation and emphasis omitted.) Arby’s, Inc. v. Cooper, 265 Ga. 240, 241 (454 SE2d 488) (1995) (finding that promise of future compensation for at-will employee was unenforceable where the amount of the bonus was based in part on a formula and in part on company president’s discretion). Moreover, this Court has held that a promise to pay made at the beginning of employment conditioned on a future event may be enforceable in a terminable-at-will contract. See Transkey, Inc. v. Adkinson, 225 Ga. App. 457, 460 (1) (484 SE2d 30) (1997) (finding jury issue as to whether condition precedent to payment of bonus existed and whether it was definite enough to be enforceable).

Applying these principles, we cannot say that the complaint discloses with certainty that the Firefighters could not be entitled to contractual relief under any state of provable facts. The complaint alleges that each of the 50 Firefighters was promoted to a supervisory position beginning in 2002 but did not receive the increase in salary provided for in the Pay Policy. Each version of the Pay Policy, at least beginning in 1998, provided for an automatic increase at a definite percentage upon promotion to a supervisory position. Thus, each firefighter may be able to point to the version of the Pay Policy in effect at the time he or she was hired and show that it provided for a definite percentage pay increase conditioned on promotion to a supervisory position. And taking the allegations of the complaint as true, each firefighter may be able to show that the condition precedent for the increase in salary was met when he or she was promoted to such a position. Thus, each firefighter may be able to assert a contract claim to receive compensation at the higher rate for work actually performed as a supervisor following his or her promotion.

3. The City asserts, however, that the Pay Policy cannot be considered a binding contract because it grants the City Manager authority “to make exception to these policies as deemed necessary.” We disagree that this determination can be made at this juncture in the proceedings.

It is well settled that “[w]hen the terms of a written contract are clear and unambiguous, the court is to look to the contract alone to find the parties’ intent.” (Citations and punctuation omitted.) Advanced Technology Svcs., Inc. v. KM Docs, LLC, 330 Ga. App. 188, 194 (2) (767 SE2d 821) (2014). Moreover,

[t]he terms and phrases contained in a contract must be given their ordinary meaning. It is equally well settled that no construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation. In such an instance, the language used must be afforded its literal meaning and plain ordinary words given their usual significance ....

(Citations and punctuation omitted.) Unified Government of AthensClarke County v. McCrary, 280 Ga. 901, 903 (635 SE2d 150) (2006).

Under the terms of the Pay Policy, the City Manager is given authority to make “exception” to the policy where “deemed necessary.” The term “exception” is commonly defined to mean “something that is excluded from a rule’s operation,” “a person or thing that... does not follow a rule,”* or “a case where a rule does not apply.” These definitions necessarily imply the existence of a rule that is generally followed, from which the exception deviates. And, in fact, the Pay Policy uses mandatory language in setting the pay increases, providing that promoted employees “shall receive” or “will receive” the specified raise in pay. Thus, we interpret this language to mean that the City Manager should apply the salary increase specified in the Pay Policy unless she determines that an exception is “necessary.” Compare Johnson v. Fulton County, 235 Ga. App. 277, 279 (1) (509 SE2d 355) (1998) (personnel policy stating that salary increases “may be granted” to an employee upon the recommendation and approval of county employees does not require that the county pay raises to all employees, but rather gives county the discretion whether to award raises).

The term “necessary” has been defined as “absolutely needed,” and “[n]eeded to be done, achieved, or present; essential.” Accordingly, we do not interpret the language of the Pay Policy as granting the City Manager unfettered authority to ignore the policy’s requirements for pay raises. Rather, we find that she must apply the policy unless, in the exercise of her discretion, she determines that an exception is essential or needed. Thus, we find that the language of the policy requires the exercise of such discretion in each particular case of promotion.

In addition, where “the manner of performance is left more or less to the discretion of one of the parties to the contract, [that party] is bound to the exercise of good faith.” (Citation and punctuation omitted.) Rogers v. Farmers & Merchants Bank, 247 Ga. App. 631,633 (545 SE2d 51) (2001). See also Rigby v. Boatright, 330 Ga. App. 181, 184 (1) (767 SE2d 783) (2014); Ameris Bank v. Alliance Investment & Mgmt. Co., LLC, 321 Ga. App. 228, 234 (3) (a) (739 SE2d 481) (2013). Thus, we find that the Pay Policy requires the City Manager to exercise his or her discretion in good faith.

And in Georgia,

[a] decision that is made for arbitrary or capricious reasons, is based on an improper pecuniary motive, or is predicated on dishonesty or illegality is not made in good faith. Furthermore, a decision can be so grossly erroneous, as where there is a total absence of any factual evidence to support it, that it creates an inference of bad faith and dishonest judgment. Whether a party exercises good faith and honest judgment in the performance of a contract is a question of fact[.]

Decided June 18, 2015 —

Reconsideration denied July 28, 2015 —

Karsman, McKenzie & Hart, Jeremy S. McKenzie, for appellants.

W. Brooks Stillwell III; Hunter, Maclean, Exley & Dunn, Shawn A. Kachmar, for appellees.

(Citations and punctuation omitted; emphasis supplied.) Rigby, 330 Ga. App. at 185 (1). The complaint, as amended, asserts that Cutter determined pay “based on personal favoritism and bias,” and we cannot say at this early pleading stage of the litigation that the Firefighters will be unable to present evidence demonstrating that Cutter failed to exercise her discretion or that she did not act in good faith in exercising her discretion. Accordingly, the discretionary language of the Pay Policy does not demand dismissal as a matter of law.

For these reasons, we reverse the trial court’s order granting the City’s motion to dismiss and/or for judgment on the pleadings.

Judgment reversed.

Barnes, R J., and Ray, J., concur.

       The trial court also granted the City’s and Cutter’s motions as to the Firefighters’ claims for promissory estoppel and attorney fees, but they do not contest the grant of judgment as to those claims on appeal.

       These categories relate to an employee’s classification under the Fair Labor Standards Act.

       Copies of the Pay Policy attached to the “First Amended and Recast Complaint” reflect that since 1998, the policy was revised on January 1,2001, November 2,2002, January 1,2005, July 25,2005, August 21, 2006, January 1,2007, November 2,2009, June 28,2012, September 8, 2013, and possibly on March 30, 2010.

       Both the complaint and the answer were amended, and the Handbooks were attached to the most recent answer filed on behalf of the City and Cutter.

       At oral argument, counsel for the Firefighters stated that the claims in this case were not based on the Pay Policy found in the 2014 Handbook; accordingly, we do not address that policy in this case.

       In support of this argument, the City relies on this Court’s decision in Tackett v. Georgia Dept. of Corrections, 304 Ga. App. 310, 312 (1) (696 SE2d 359) (2010), and cases cited therein. In that case, the Court drew a distinction between employment policies relating to “additional compensation plans, such as retirement benefits or insurance plans,” which have been found to create binding contracts, and “personnel manuals stating that employees can be terminated only for cause and setting forth termination procedures are not contracts of employment; failure to follow the termination procedures contained in them is not actionable.” (Citation and punctuation omitted.) Id. The policy at issue in Tackett listed three bases on which an employee’s salary “may be” reduced, and the Court held that the policy did not create a contract between the parties, citing a case holding that promotion policies in a manual did not create a contract. But Tackett does not hold that a policy, like the one in this case, setting forth the specific amount of an employee’s compensation at the time of promotion can never constitute a contract. Rather, we interpret Tackett as holding that the permissive policy at issue in that case was more akin to policies setting forth certain procedures to he followed in connection with employment decisions than to policies providing for additional amounts or kinds of compensation.

       We note that the City asserted at oral argument that the Firefighters were employed on an at-will basis.

       Nothing in this opinion should be interpreted as holding that the Pay Policy is legally sufficient to create an implied contract for a definite term of employment. See, e.g., Goddard, 285 Ga. at 885-886 (3); Ellison v. DeKalb County, 236 Ga. App. 185, 186 (1) (511 SE2d 284) (1999).

       (Citation and punctuation omitted.) Biven Software, 222 Ga. App. at 115 (2). See also E. D. Lacey Mills, Inc. v. Keith, 183 Ga. App. 357, 361 (6) (359 SE2d 148) (1987).

       Black’s Law Dictionary (10th ed. 2014).

       Oxford Advance Learner’s Dictionary, online at http://www.oxforddictionaries.com/ definition/english/exception.

       Merriam-Webster’s Online Dictionary, http://www.merriam-webster.com/dictionary/ exception.

       Merriam-Webster’s Online Dictionary, http://www.merriam-webster.com/dictionary/ necessary.

       Oxford Advance Learner’s Dictionary, online at http://www.oxforddictionaries.com/ defmition/english/necessary.

       We note that we address only the issue ruled upon by the trial court below and argued by the parties on appeal, and we expressly do not address any other defenses or arguments raised by the City and Cutter below.


author: Dillard, Judge.

text:
    A15A0040.
    HALL v. PROSERO, INC.
    (774 S.E.2d 216)
   Dillard, Judge.

Lawrence W. Hall appeals the trial court’s grant of summary judgment to Prosero, Inc., formerly known as FacilityPro.com Corp. (“Prosero”), on Prosero’s suit to recover on a promissory note executed by Hall. Hall contends on appeal that the trial court erred in granting summary judgment to Prosero when genuine issues of material fact remain as to whether the note suffered from a partial failure of consideration. For the reasons set forth infra, we affirm.

At the outset, we note that summary judgment is proper only when no genuine issue of material fact exists and “the moving party is entitled to judgment as a matter of law.”* And when ruling upon a motion for summary judgment, the opposing party must be given “the benefit of all reasonable doubt, and the evidence and all inferences and conclusions therefrom must be construed most favorably toward the party opposing the motion.” Thus, when we review the grant or denial of summary judgment, we conduct a de novo review of the law and evidence.

Viewed in the light most favorable to Hall (i.e., the nonmovant), the record reflects that Hall joined Prosero in 2001 as the president and COO when the company was struggling in the aftermath of the dot-com market crash of the early 2000s. Due to the sudden decline in stock prices, and concurrent with Hall’s arrival, the company decided to abandon its software-development operations and shift its focus instead to outsourced equipment-procurement operations. Within six months of his arrival, Hall was promoted to CEO of Prosero.

Although the company continued to operate at a loss, the board of directors decided to incentivize Hall through increased compensation. And following a compensation meeting (in which Hall did not participate), the board offered Hall a $50,000 raise (to a salary of $250,000) and stock options of 500,000 shares exercisable at $1.25 per share. Then, in order to obtain potentially more favorable tax treatment via capital gains rather than income tax, Hall exercised (on January 16, 2002) nonqualified stock options contemporaneously by executing a full-recourse promissory note for $625,000, which was backed by the 500,000 shares of stock. The note provided that Hall would pay interest on the original principal amount at the Wall Street Journal prime rate plus 1/4 percent, contained an original maturity date of January 15, 2007, and included an acceleration clause that required full payment due within 30 days of Hall’s termination by Prosero.

In May 2004, Hall’s employment with Prosero was terminated and, in connection with his departure, the parties executed a separation agreement that, inter alia, extended the maturity date of the note to January 15,2010, and deleted the acceleration provision. Hall also executed an amendment to the note, acknowledging that the “entire outstanding principal and all accrued interest shall be due and payable in full on January 15, 2010.”

In January 2007, majority ownership of Prosero changed, and in 2010, the new management sought to collect upon Hall’s unpaid note. Then, on March 17, 2010, Prosero filed suit against Hall for breach of contract and sought an award of attorney fees and costs. Hall raised several affirmative defenses in response, including partial failure of consideration.

Prosero subsequently filed a motion for summary judgment, which the trial court denied in January 2012. This Court and the Supreme Court of Georgia both declined to review an interlocutory appeal by Prosero. Then, in May 2014, and in anticipation of trial, Prosero filed two motions in limine. The trial court, in an order dated June 11, 2014, recast these motions as a “Collective Motion for Reconsideration” of the court’s denial of Prosero’s motion for summary judgment. The court then granted summary judgment to Prosero, concluding that the agreement between Prosero and Hall was unambiguous and that “full consideration was given to the Secured Promissory Note when Hall exercised his option to purchase Prosero’s 500,000 shares of common stock for the aggregate purchase price of $625,000.” This appeal by Hall follows, in which he contends that the trial court erred in granting summary judgment to Prosero when there is a genuine issue of material fact as to whether the note suffered from a partial failure of consideration. And as this Court explained in Greene v. Johnson, the burden of sustaining the defense of total or partial failure of consideration falls upon the one asserting the defense.

Initially, we note that Hall spends much of his brief relating the financial and business history of Prosero before, during, and after his employment with the company in order to question the board’s methodology and valuation of the stock at $ 1.25 in January 2002. And ultimately, he contends that there is a genuine issue of material fact as to his defense of partial failure of consideration because, according to his expert witness, the fair-market value of the Prosero stock on January 16, 2002, was the nominal value of $0.01 per share and not $1.25 per share. We find this argument unavailing.

Here, the evidence shows that Hall received full consideration because he executed a promissory note for $625,000 to purchase 500,000 shares of Prosero stock at $1.25 a share. Indeed, Hall himself testified that the shares had some value at the time he executed the note, and even his expert’s testimony that the shares were worth $0.01 is evidence that the shares had at least a nominal fair-market value. Accordingly, there is not a complete failure of consideration in this case.

Likewise, there is no evidence of a partial failure of consideration in the case sub judice. Indeed, while the defense of total failure of consideration requires a defendant to “show that the goods were wholly without value,” a partial failure of consideration is demonstrated by showing the extent of such failure “with such particularity and certainty that the jury (or judge) could, without guesswork or speculation, arrive at the amount.”* This, Hall cannot do.

Specifically, Hall argues that a genuine issue of material fact exists as to whether there is a partial failure of consideration for the promissory note when, according to his expert, the 500,000 shares of stock he received were worth $0.01 at tender and execution, not $1.25. But contrary to Hall’s characterization, this is actually an argument that the consideration was inadequate. And inadequacy of consideration is not, in and of itself, a defense to an action on a contract. That said, it is certainly true that inadequacy of consideration, if substantial, “is a strong circumstance to evidence fraud” and, in a breach-of-contract action, the inadequacy of consideration will “always enter as an element in estimating the damages.” But Hall does not include fraud as an affirmative defense and he has not filed a counterclaim based on fraud. As a result, the trial court correctly granted summary judgment to Prosero because Hall cannot show a partial failure of consideration when there was no consideration wholly valueless as to any part of the note but, instead, as alleged by Hall, the consideration was simply inadequate in point of actual total value to the note.

Decided July 10, 2015 —

Reconsideration denied July 29, 2015 —

Friedman, Dever & Merlin, H. Michael Dever, Genevieve H. Dame, for appellant.

Troutman Sanders, Vincent C. Bushnell, Alan W. Bakowski, for appellee.

For all of the foregoing reasons, we affirm the trial court’s grant of summary judgment.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.

        Merritt v. Marlin Outdoor Advertising, Ltd., 298 Ga. App. 87, 87 (679 SE2d 97) (2009) (punctuation omitted).

        Id. (punctuation omitted).

        Id.

        See id.

       It is undisputed that Hall has not paid upon the note.

        See OCGA § 13-5-9 (total or partial failure of consideration may be pleaded as a defense to enforcement of a promise). Cf. Merritt, 298 Ga. App. at 87 (holding that a partial failure of consideration can support a claim for breach of contract).

       170 Ga. App. 760 (318 SE2d 205) (1984).

        Id. at 761; accord West v. Diduro, 312 Ga. App. 591, 594 (718 SE2d 815) (2011) (physical precedent only).

        See Herrmann & Henican v. De LaPerriere, 47 Ga. App. 541, 543 (1) (171 SE 232) (1933) (“The fact that the stock was intrinsically worthless when the contract was made does not amount to a total failure or want of consideration, if it had a market value when sold. It must, on the day of the sale and on the day it was tendered, have had neither a market value nor an intrinsic value, to be a defense on the ground of a total failure or want of consideration.” (emphasis supplied)); see also Coast Scopitone, Inc. v. Self, 127 Ga. App. 124, 126 (1) (192 SE2d 513) (1972) (“Where it appears from the evidence that the goods have some value, a plea of total failure of consideration has not been sustained____” (citations omitted)); Anchor Sign Co. of Ga., Inc. v. PS Heating &Air Conditioning Co., 125 Ga. App. 207, 207 (186 SE2d 892) (1971) (“The evidence showed that there had not been a total failure of consideration because the defendant had attained a benefit from the use of the air-conditioning unit. Therefore, the defendant’s only defense would have been a partial failure of consideration.”); Herrman & Henican v. De LaPerriere, 56 Ga. App. 749, 751 (194 SE 42) (1937) (“The defendant would also be entitled to a verdict in his favor if it appeared from competent evidence and to the satisfaction of the jury that the stock was worthless both at the time of the sale and at the time of the tender, or, in other words, that the sale was without consideration.”). See generally 17 Williston on Contracts §51:18 (4th ed.) (discussing the defense of failure of consideration for the sale of securities and noting that, “[i]f the parties are dealing at arm’s length... and neither buyer nor seller is guilty of fraud, the defense of failure of consideration will not, by the weight of authority, prevail, unless the stock or other security had neither a market value, nor an intrinsic value both on the day of the contract and on the day of tender”).

        Coast Scopitone, 127 Ga. App. at 126 (1); see also Jones v. Dixie O’Brien Div., O’Brien Corp., 174 Ga. App. 67, 68 (1) (329 SE2d 256) (1985) (holding testimony that, inter alia, “paint at issue was defective and of no value whatsoever” was “sufficient evidence that the consideration had totally failed” (punctuation omitted)); Fagala v. Morrison, 146 Ga. App. 377, 377 (1) (246 SE2d 408) (1978) (holding, when defendant raised affirmative defense of total failure of consideration, that even assuming the acquired stock “became worthless, the worthlessness of the stock did not constitute a failure of consideration” when, in exchange for note, defendant received “2,500 shares of stock ... , as well as all the rights, privileges, and benefits of a shareholder, director, and officer” (emphasis supplied) (punctuation omitted)).

        Pepsico Truck Rental, Inc. v. E. Foods, Inc., 145 Ga. App. 410, 411 (1) (243 SE2d 662) (1978) (quoting Coast Scopitone, 127 Ga. App. at 126 (1)); see also Anchor Sign Co. of Ga., 125 Ga. App. at 208 (“The proof offered must substantiate to what extent the consideration has failed so that it would be possible for the jury or for the court to determine the extent of failure of consideration. Absent such proof, the defense of partial failure of consideration must fail.”); Hall v. S. Sales Co., 81 Ga. App. 392, 393(58 SE2d 925) (1950) (noting that “in order to authorize a recovery by the defendant under a plea of a partial failure of consideration... the defendant must establish by the evidence some data by which a jury could determine not only that there was a partial failure of consideration, but the extent of the failure, that is, the amount allowable to the defendant on account of this partial failure of consideration”).

       When a defendant is able to show that there has been a partial failure of consideration, he or she is then entitled to abatement of the purchase price to the extent the consideration may have failed. See Coast Scopitone, 127 Ga. App. at 126 (1) (“While a plea of total failure of consideration includes a partial failure, upon proof of which the defendant is entitled to an abatement of the purchase price to the extent the consideration may have failed, the burden of proof in establishing either is on the defendant.” (citations omitted)).

        Compare OCGA § 13-3-46 (“Mere inadequacy of consideration alone will not void a contract”) with OCGA § 11-3-303 (b) (“ ‘Consideration’ means any consideration sufficient to support a simple contract. The drawer or maker of an instrument has a defense if the instrument is issued without consideration. If an instrument is issued for a promise of performance, the issuer has a defense to the extent performance of the promise is due and the promise has not been performed. If an instrument is issued for value as stated in subsection (a) of this Code section, the instrument is also issued for consideration.”).

        See Littlegreen v. Gardner, 208 Ga. 523, 523 (2) (67 SE2d 713) (1951) (“[T]he mere inadequacy of consideration alone will not avoid the contract.”); Merritt, 298 Ga. App. at 89 (1) (same); see also Bonem v. Golf Club of Ga., Inc., 264 Ga. App. 573, 577 (1) (c) (591 SE2d 462) (2003) (“We note that inadequacy of consideration is not in and of itself a defense to an action on a contract.”). See generally Colonial Funeral Homes, Inc. v. Gilmore, 1994 WL 521254, at *4 (Tenn. Ct.App. 1994) (“ ‘Inadequacy of consideration’is, as the term implies, a consideration not adequate or equal in value to the thing conveyed, and where the parties contract with a knowledge of what they are doing inadequacy of consideration is no ground for avoiding the contract.”); 12AFletcher Cyclopedia of the Law of Corporations § 5574 (“A distinction should be made between want or failure of consideration, which is a defense to an action between the parties, and inadequacy of consideration, which does not constitute a legal defense.”).

       OCGA § 13-3-46.

        Id.

        See Griffin v. Simmons, 61 Tenn. 19,23 (1872) (“In the case we are considering, the note was given upon one entire consideration — that is, one thousand dollars in depreciated hank papers — and this consideration went to the whole note at the time it was made. There was no consideration wholly valueless as to any part of the note. It is not therefore a case of partial want of consideration, but is a case where the consideration was not adequate in point of actual value to the note given by the plaintiffs in error to the testator of the defendants in error.”); Parish v. Stone, 31 Mass. 198, 208 (1833) (“Had the note been taken for two distinct liquidated sums, consolidated, and the consideration hadbeen wholly wanting, or wholly failed as to one, it seems quite clear, that according to well established principles, supported by authorities, the note, as between the original parties, and all those who stand in such relation, as to allow the defence [sic] of want of consideration, it would be competent to the Court to apportion the note, and consider it good in part, and void in part, and to permit the holder to recover accordingly.”). Cf. Bollen v. Harkleroad & Hermance, P.C., 217 Ga. App. 4, 6 (1) (456 SE2d 73) (1995) (“It is clear that defendant’s defense in this case is one of partial rather than total failure of consideration, in that he challenges only some of the [legal] fees [he was charged] as excessive.”); Christopher v. Griffin, 185 Ga. App. 499, 500 (364 SE2d 892) (1988) (defense of partial failure of consideration authorized in action for payment on certain repair and paint work performed); Brown v. Commercial Credit Equip. Corp., 172 Ga. App. 568, 571-73 (2) (323 SE2d 822) (1984) (finding material conflicts in evidence on defense of partial failure of consideration in contract for the purchase of airplane when a portion of the payment included a disputed trade-in); Greene, 170 Ga. App. at 761 (opining that defense of partial failure of consideration was still available, despite inability to prove total failure, in case concerning sale of accounting business that involved two promissory notes and execution of covenant not to compete).


author: McFadden, Judge.

text:
    A15A0055.
    McCUMBER et al. v. PETROLEUM SERVICES GROUP, LLC. McCUMBER et al. v. K. C. PETROLEUM, INC.
    A15A0056.
    (773 S.E.2d 802)
   McFadden, Judge.

These cases arise out of leakage of fuel from underground storage tanks on the property of Coastal Retail Management, LLC — which is owned by appellants Andrew McCumber and Rajendra Patel. Coastal’s claims arising out of that occurrence have been resolved in earlier litigation. In these cases, McCumber and Patel now seek personal damages arising out of the same occurrence. The trial court granted summary judgment against McCumber and Patel on the basis of collateral estoppel, and they appeal.

As to the claims resolved in the earlier litigation against Coastal, we agree with the trial court that McCumber’s and Patel’s claims are barred by collateral estoppel. As to the negligence claim resolved in favor of Coastal, we pretermit the issue of collateral estoppel and hold that McCumber and Patel have shown no duty owed to them as individuals. We therefore affirm.

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. OCGA § 9-11-56 (c). On appeal from a grant of summary judgment, we apply a de novo standard of review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the record shows that Coastal filed a lawsuit in the Superior Court of Screven County, Georgia, against K. C. Petroleum, Inc. and Petroleum Services Group, LLC, seeking damages arising from the leakage of fuel from underground storage tanks on Coastal’s property. The suit asserted claims of negligence and fraud against K. C. Petroleum, which had installed the tanks, and negligence against Petroleum Services, which had monitored the tanks. The case proceeded to a non-jury trial, after which the trial court entered judgment finding that Petroleum Services was not liable for negligence, that K. C. Petroleum was not liable for fraud, but that K. C. Petroleum was liable for negligence in the amount of $425,170. Coastal appealed, and this court affirmed the judgment in an unpublished opinion. Coastal Retail Mgmt. v. K. C. Petroleum, 326 Ga. App. XXV (2014) (Case No. A13A1664).

In the meantime, McCumber and Patel, the owners of Coastal, filed a separate lawsuit in Liberty County, Georgia against K. C. Petroleum, its employee Loy Sanders, and Petroleum Services, seeking personal damages arising from the leaking fuel tanks. The complaint set forth claims of negligence and fraud against K. C. Petroleum, fraud against Sanders and negligence against Petroleum Services. K. C. Petroleum, Sanders and Petroleum Services moved for summary judgment on the grounds of res judicata and collateral estoppel based on the final judgment from the Screven County lawsuit. The trial court granted the motions, issuing one order granting summary judgment to Petroleum Services and another order granting summary judgment to K. C. Petroleum and Sanders. These appeals followed: in Case No. A15A0055, McCumber and Patel challenge the summary judgment order in favor of Petroleum Services; and in Case No. A15A0056, they challenge the summary judgment in favor of K. C. Petroleum and Sanders.

Case No. A15A005S

1. Negligence claim against Petroleum Services.

Contrary to the arguments of McCumber and Patel, their negligence claim against Petroleum Services is barred by collateral estoppel. That doctrine

precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim —■ so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim.

Coffee Iron Works v. QORE, Inc., 322 Ga. App. 137, 139 (1) (744 SE2d 114) (2013) (citation and emphasis omitted).

Here, the issue of Petroleum Services’ liability for negligence was previously litigated and adjudicated in the Screven County action, with the trial court finding that Petroleum Services was not liable and this court affirming that finding on appeal. Although McCumber and Patel were not parties to the Screven County action, they are the sole owners and privies of Coastal, the plaintiff in that prior suit who litigated the same legal claim of negligence now asserted by McCumber and Patel in this suit. Consequently they are in privity with Coastal.

Aprivy is generally defined as one who is represented at trial and who is in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right.... There is no definition of “privity” which can be automatically applied to all cases involving the doctrines of res judicata and collateral estoppel, since privity depends upon the circumstances. Privity may be established if the party to the first suit represented the interests of the party to the second suit.

Id. at 141 (3) (citation omitted).

McCumber and Patel contend that they are not privies of their corporation because the Screven County trial court issued an order noting their separate lawsuit in Liberty County and prohibiting Coastal from seeking damages pertaining to them individually in the Screven County action. That order was appropriate because McCumber and Patel were not parties to the Screven County suit; it is irrelevant for purposes of collateral estoppel analysis. The fact remains that Coastal asserted and litigated the same claim of negligence against Petroleum Services that McCumber and Patel alleged in their separate action. Thus, McCumber and Patel are so connected in law and have such an identity of interest with their corporation that they are in privity with Coastal. Because the issue of Petroleum Services’ liability for negligence was determined in the previous action and there is identity of the parties, that issue may not be re-litigated and the trial court therefore correctly granted summary judgment to Petroleum Services.

Case No. A15A0056

2. Fraud claims against K. C. Petroleum and Sanders.

The issue of liability for fraud by K. C. Petroleum and Sanders was also previously decided in the Screven County action and is thus barred by collateral estoppel. After the bench trial in Screven County, the trial court expressly found as part of its judgment that there was no liability for any alleged acts of fraud by employees of K. C. Petroleum. Although Sanders was not a party to that first action, his alleged acts of fraud were in issue and were actually litigated in the prior case. Indeed, on appeal, this court reviewed the evidence pertaining to the claim of fraud by Sanders and K. C. Petroleum, and we concluded that “the trial court’s judgment in favor of [K. C. Petroleum] on that claim was authorized.” Accordingly, since the issue of liability for fraud was determined in the previous action and there is identity of the parties, collateral estoppel “preclude [s] re-litigation of the same issue here. [Cit.]” See Minnifield v. Wells Fargo Bank, 331 Ga. App. 512, 517 (3) (771 SE2d 188) (2015).

3. Negligence claim against K. C. Petroleum.

McCumber and Patel argue that they cannot be estopped from pursuing the same negligence claim against K. C. Petroleum that was litigated in the previous action since K. C. Petroleum was actually found liable for negligence in that prior suit. But pretermitting the issue of collateral estoppel is the fact that McCumber and Patel have not shown any duty owed to them, as individuals, by K. C. Petroleum which would support their negligence claim. On the contrary, the only duty identified in their complaint was the duty owed by K. C. Petroleum to Coastal to properly install the fuel tanks on Coastal’s gas station site.

Decided July 14, 2015 —

Reconsiderations denied July 29, 2015

Savage & Turner, Brent J. Savage, Kathryn H. Pinckney, for appellants.

Rouse & Copeland, Christopher L. Rouse, for appellee (case no. A15A0055).

Hunter, Maclean, Exley & Dunn, Christopher W. Phillips, Nicholas J. Laybourn, for appellee (case no. A15A0056).

“The threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care.” City of Rome v. Jordan, 263 Ga. 26, 27 (1) (426 SE2d 861) (1993) (citation and footnote omitted). Absent a duty owed by K. C. Petroleum to McCumber and Patel, they have not shown a viable negligence claim against K. C. Petroleum for any purported indirect injuries. See Crittenton v. Southland Owners Assn., 312 Ga. App. 521, 524 (2) (718 SE2d 839) (2011) (indirect injuries to a corporate member or director resulting from direct injury to the corporation do not give rise to a direct action); Dunn v. Ceccarelli, 227 Ga. App. 505, 509 (1) (a) (489 SE2d 563) (1997) (physical precedent).

That threshold issue controls our decision today. “A grant of summary judgment must be 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.” Georgia-Pacific v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013) (citations, punctuation and emphasis omitted). Here, K. C. Petroleum raised this very issue of lack of evidence of duty in a prior summary judgment motion, which the trial court denied before later granting the renewed motion for summary judgment. Under these circumstances, the issue was properly raised in the trial court, and even though not the stated reason for the trial court’s eventual grant of summary judgment, it mandates affirmance of the summary judgment ruling. See McPherson v. City of Ft. Oglethorpe, 200 Ga. App. 129, 131 (1) (407 SE2d 99) (1991) (absent evidence of duty, essential element of negligence is missing and trial court properly granted summary judgment to defendant).

Judgments affirmed.

Dillard, J., concurs. Ellington, P. J., concurs in judgment only.