author: Branch, Judge.

text:
    A14A1996.
    BARRON v. WELLS FARGO BANK, N.A.
    (769 SE2d 830)
   Branch, Judge.

The trial court granted summary judgment in favor of Wells Fargo Bank, N.A., in the bank’s suit to reform the legal description of property securing a debt owed to the bank by appellant Mickey J. Barron. The bank argued that the security deed mistakenly identified only part of Barron’s single parcel of real property. The trial court based its ruling on judicial estoppel, finding that in his personal bankruptcy proceeding, Barron declared that he owned only one parcel of real property, not two, as he now contends. The trial court also granted summary judgment in favor of the bank on Barron’s counterclaims. Barron appeals both decisions. We 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). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

Construed in favor of Barron, the record shows that on December 16, 1996, Barron purchased property located at 1610 Chattahoochee Run Drive in Suwanee through a recorded warranty deed; the property, which is Lot 85 of the Chattahoochee Run subdivision, is located on a corner of Chattahoochee Run Drive and Waterton Lane. Barron financed the purchase and executed a security deed in that regard. On June 28, 2001, Barron refinanced the debt and executed another security deed on the same property. The original warranty deed and both security deeds describe the secured property with the identical language: The referenced plat will be referred to herein as the “1995 Plat.” Barron constructed a house on Lot 85 and occupied the home in 1997.

All that tract or parcel of land lying and being in Land Lot 239 of the 7th District of Gwinnett County, Georgia, being lot 85, block B, Chattahoochee Run Subdivision, Unit 1-C, as per plat recorded in Plat Book 70, Pages 142 & 143, Gwinnett County records, which said plat is incorporated herein and made a part hereof by reference.

In 2002, Barron decided to purchase most of the vacant lot adjoining the back of his property so that he could build a pool; the lot is known as Lot 94 and is located on Waterton Lane. Barron admits that to execute the property transfer, the owner/developer of Lot 94 redefined or “re-parceled” Lot 85 and the portion of Lot 94 that Barron sought to purchase by merging the sought-after portion of Lot 94 (hereinafter “Lot 94”) with Lot 85 and issuing Barron a quitclaim deed to the redefined Lot 85. Thus, on April 26, 2002, John Wieland Homes issued to Barron, who paid cash in exchange, a quitclaim deed that described the property as Lot 85 as shown on a different plat:

All that tract or parcel of land lying and being in Unit 1-C, Chattahoochee Run subdivision, Land Lot 239 of the 7th District, Gwinnett County, Georgia, and being Lot 85 as per Plat Book 91, Page 43, Gwinnett County, Georgia, records, which recorded plat is incorporated herein by reference.

The referenced plat, the “2001 Plat,” shows the now enlarged Lot 85. After the purchase, Barron took down a fence that separated the two lots, rebuilt the fence around the now-combined parcel, and eventually constructed a swimming pool on the newly acquired property.

In May 2004, Barron again sought to refinance his residential purchase money debt, which was then held by Washington Mutual Bank, FA (WaMu), and he eventually executed a security deed in that regard. During the relevant negotiations, Barron requested and received WaMu’s assurance that only the original property would be used as security for the refinanced debt. The legal description of the property given in the relevant May 5, 2004 security deed identifies the correct property address and tax parcel number, and it refers to the 1995 Plat, not the 2001 Plat:

All that tract or parcel of land lying and being in land lot 239 of the 7th District of Gwinnett County, Georgia, being Lot 85, Block B, Chattahoochee Run Subdivision, Unit 1-C, as per plat recorded in Plat Book 70, pages 142 & 143, Gwinnett County records, which said plat is incorporated herein and made a part hereof as reference.

The 1995 Plat, of course, shows the original Lot 85 that Barron purchased in 1996. Other evidence shows that unlike Lot 85, Lot 94 was not originally a part of “Block B” of the development but rather, “Block E.” Thus, Barron argues, the reference to Block B in the May 2004 security deed lends further support to his argument that that deed referred only to the original Lot 85. In connection with the refinancing, Barron signed a promissory note for $269,520. On April 3, 2007, WaMu assigned the debt and related documents to Wells Fargo Bank, N.A.

By 2011, Barron was “deeply in debt” and in default on the note to Wells Fargo. On February 4, 2011, apparently on the eve of a foreclosure by Wells Fargo, Barron filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy Code. On Schedule A of his Bankruptcy petition, where he was required to “list all real property in which the debtor has any legal, equitable, or future interest,” Barron declared under penalty of perjury that he owned a single parcel of real property; he identified this property as “1610 Chattahoochee Run Drive,” valued the property at $250,000, and stated that the “amount of the secured claim” was $270,000. On Schedule D, where he was required to list “all entities holding claims secured by property of the debtor,” Barron declared that Wells Fargo held a secured claim against him, and he indicated that the secured property was valued at $250,000, that the amount of the claim was $260,000, and that the unsecured portion of the claim was $10,000. On other schedules, Barron declared over $2.6 million of unsecured debts. Also, Barron did not list in the bankruptcy schedules that he had a claim against Wells Fargo or WaMu. On May 19, 2011, Barron was discharged in bankruptcy, which included being absolved of all of the unsecured debt. Wells Fargo, however, retained a right to proceed against the secured property after Barron’s discharge.

On January 20, 2012, an employee of a title agency filed in the Gwinnett County property records an “affidavit of scrivener’s error” in which the employee averred that “someone” at the title agency caused the May 5, 2004 security deed to be filed with an incorrect legal description in that it referenced the 1995 Plat instead of the 2001 Plat. Within three weeks, Barron, too, filed a scrivener’s error affidavit in which he averred that he had specifically negotiated with WaMu to exclude from the secured property the portion of his property that he purchased in 2002 and that, accordingly, the legal description in the May 5, 2004 security deed accurately reflected the intent of the parties to that document.

On August 20, 2012, Wells Fargo filed the present suit for an equitable reformation of the 2004 security deed, arguing that the deed’s failure to reference the 2001 Plat was a mutual mistake between the parties. Wells Fargo sought to reform the deed so that it could foreclose on the entire property located at 1610 Chattahoochee Run Drive. Barron answered and counterclaimed to quiet title, for damages for slander of title and intentional interference with property rights, and for declaratory relief. The court granted summary judgment in favor of Wells Fargo on its claims and Barron’s counterclaims. The court held that Barron was judicially estopped from claiming ownership of the portion of Lot 94 that he purchased in 2002 free and clear of Wells Fargo’s claim of a security interest. The trial court held that Barron failed to disclose to the bankruptcy court the existence of the allegedly unencumbered portion of his property, that he admitted that he considered the property to be “one exempt parcel for the purposes of the bankruptcy,” and that he is therefore barred from asserting that he owns Lot 94 free and clear of any security interest.

1. Barron contends the trial court erred by concluding that he was judicially estopped. We disagree.

The common law equitable doctrine of judicial estoppel provides that a party may not assume a position in a legal proceeding, succeed by maintaining that position, then assume a contrary position “ ‘especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.’ ” Roberts v. State, 278 Ga. 610, 612 (604 SE2d 781) (2004), quoting New Hampshire v. Maine, 532 U. S. 742, 749 (II) (121 SCt 1808, 149 LE2d 968) (2001) (citation omitted). “It is most commonly invoked to prevent bankruptcy debtors from concealing a possible cause of action, asserting the claim following the discharge of the bankruptcy and excluding resources from the bankruptcy estate that might have otherwise satisfied creditors.” Period Homes v. Wallick, 275 Ga. 486, 488 (2) (569 SE2d 502) (2002) (citation omitted). Judicial estoppel “is invoked by a court at its discretion, and intended to prevent abuse of the judicial process. The circumstances under which it is appropriate are not reduced to any general formula or rule.” Id. (citation omitted). Georgia courts have followed the United States Supreme Court, however, in considering “three factors pertinent to the decision whether to apply the doctrine in a particular case”:

(1) the party’s later position must be “clearly inconsistent” with its earlier position; (2) the party must have succeeded in persuading a court to accept the party’s earlier position; ... absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

IBF Participating Income Fund v. Dillard-Winecoff, LLC, 275 Ga. 765, 766-767 (573 SE2d 58) (2002) (citation and punctuation omitted). We review a lower court’s application of judicial estoppel for abuse of discretion. Klardie v. Klardie, 287 Ga. 499, 502 (2) (697 SE2d 207) (2010); Pew v. One Buckhead Loop Condo. Assn., 305 Ga. App. 456, 460 (1) (b) (700 SE2d 831) (2010).

(a) Clear Inconsistency. Barron claims his assertion that he has title to Lot 94 free and clear of Wells Fargo’s security interest is not inconsistent with his bankruptcy court declarations because he in fact listed his interest in Lot 94 on Schedules A and D when he “listed $10,000 of the Property’s value as being unsecured.” Barron continues: “Mr. Barron listed the $10,000 figure to identify [Lot 94], Wells Fargo did not contest Barron’s claim that $10,000 of the property’s value was unsecured.” (Emphasis supplied.) This argument has no merit. The only place that Barron wrote the figure “$10,000” on either Schedule Aor D was on Schedule D, where Barron declared that Wells Fargo had a secured claim against him and that the “unsecured portion” was $10,000. The official bankruptcy form itself, especially when read in light of the bankruptcy form advisory committee notes, shows that this column required Barron to declare the unsecured portion of Wells Fargo’s claim, not the portion of Barron’s property that was unsecured. See supra, n. 1. Barron offers no citation of authority for his interpretation of the official Schedule D form, and it defies the plain reading of the form. We conclude that the trial court acted within its discretion by holding that Barron did not declare Lot 94 as an unsecured parcel of property in his bankruptcy filing.

Barron also averred that he “discussed” Lot 94 with the bankruptcy trustee and told the trustee “what he was going to do.” But Barron did not testify that he told the trustee that Lot 94 was unsecured; that Barron would not be listing Lot 94 as an item of real property, as required, on Schedule A of his bankruptcy filings; or that he would be placing a value in a column on Schedule D that is meant to contain the portion of the creditor’s claim that is unsecured while harboring the secret intent to convey a different meaning. Moreover, Barron admitted under oath in this case that he considered Lot 85 and Lot 94 “to be one exempt parcel for the purposes of the bankruptcy.” Again, the trial court did not abuse its discretion in concluding that Barron failed to disclose his claim that he owned Lot 94 free and clear of any security interest.

(b) Success in Bankruptcy Court. The facts also show that Barron successfully convinced the bankruptcy court that he did not have an unsecured piece of real estate. The bankruptcy court discharged Barron based on “a report of no distribution,” “meaning that he had located no nonexempt assets that could be liquidated for the benefit of creditors.” In re Sullivan, 2015 WL 780261 (Bankr. E.D. Cal. 2015); In re Kran, 760 F3d 206, 209 (2d Cir. 2014) (where trustee “concludes that no non-exempt property exists to be collected on behalf of creditors, he or she files a ‘No Asset’ report or a ‘Report of No Distribution’ ”).

(c) Unfair Advantage. Finally, the trial court was authorized to conclude that Barron would derive an unfair advantage if not estopped in that he would have failed to disclose an asset that might have been available to creditors if he had declared it in his bankruptcy filings. See Pappacoda v. Palmetto Health, 2014 WL 4417559 (D.S.C. 2014) (after trustee issued report of no distribution, debtor judicially estopped from asserting claim that she failed to disclose in bankruptcy proceedings).

We conclude that the trial court did not abuse its discretion in applying judicial estoppel to bar Barron from taking advantage of the possibility that he continues to own Lot 94 following his discharge in bankruptcy. See, e.g., Battle v. Liberty Mut. Fire Ins. Co., 276 Ga. App. 434, 436 (623 SE2d 541) (2005) (homeowner judicially estopped from recovering insurance proceeds for fire damage to his home because he failed to declare the house as an asset in his earlier successful bankruptcy; there is no requirement “that a party raising the defense of judicial estoppel must show that it was directly affected by its opposing party’s prior inconsistent successful position”). See generally Cannon-Stokes v. Potter, 453 F3d 446, 448 (7th Cir. 2006) (“All six [federal] appellate courts that have considered this question [as of 2006] hold that a debtor in bankruptcy who denies owning an asset, including a chose in action or other legal claim, cannot realize on that concealed asset after the bankruptcy ends.”) (citations omitted).

2. Barron makes four additional arguments as to how the trial court erred in granting summary judgment on Wells Fargo’s equitable claim to reform the deed based on mutual mistake and his counterclaims, even if judicial estoppel is applicable.

(a) Barron contends Wells Fargo is not entitled to summary judgment because it failed to present evidence to show that the parties made a mutual mistake on the May 5, 2004 security deed. But based on judicial estoppel, the trial court held that Barron was “barred from asserting that he did not intend to encumber the entire Property.” Because we have affirmed the trial court’s ruling on judicial estoppel, Barron is barred from asserting any facts to contradict the trial court’s holding. Because it has now been established that Barron intended to encumber the entire property, which Wells Fargo also asserts, it is now undisputed that the May 5, 2004 security deed encumbered the combined Lot 85 and 94. Barron’s argument therefore fails.

(b) Barron contends the trial court erred by granting summary judgment because Wells Fargo failed to produce an OCGA § 9-11-30 (b) (6) witness prior to the hearing on the motion for summary judgment. Barron contends that he was therefore “deprived [of] the opportunity to depose Wells Fargo on any evidence it possessed relating to mutual mistake and its position on Mr. Barron’s contention that there has been no mutual mistake.” The application of judicial estoppel — which has established that Barron intended to encumber his entire property — defeats Barron’s argument.

In general, “this Court does not condone the grant of summary judgment while a motion to compel discovery is pending, unless it can be determined that the disallowed discovery would add nothing of substance to the party’s claim.” 915 Indian Trail v. State Bank & Trust Co., 328 Ga. App. 524, 535 (3) (759 SE2d 654) (2014) (citation and punctuation omitted; emphasis in original). Here, Barron is barred by judicial estoppel from contradicting that the parties intended to encumber the entire property at issue in this case, the sole issue raised by Wells Fargo’s complaint. Thus, a deposition of Wells Fargo can add nothing of substance to the claim or any defenses thereto. We find no error.

(c) Barron contends that Wells Fargo’s complaint was untimely. “An action to reform a written document maybe brought within seven years from the time the cause of action accrues.” Haffner v. Davis, 290 Ga. 753, 756 (3) (725 SE2d 286) (2012) (citation omitted). “As a general rule, the statute of limitation does not commence to run against an equitable action for reformation of a written instrument based on mutual mistake or fraud until the mistake or fraud has been, or by the exercise of reasonable diligence should have been, discovered.” Id. (citation and punctuation omitted). Here, Wells Fargo was first assigned an interest in the property on April 3, 2007, and it filed suit on August 20, 2012; thus, Wells Fargo filed suit approximately five years and four months after it reasonably could have been expected to discover an error regarding the May 2004 security deed. Moreover, “[t]here is an exception that permits the grant of [equitable] relief [in the form of contract reformation] even in cases of negligence when the other party has not been prejudiced.” Id. Here, Barron cannot be prejudiced by the contract reformation because he is judicially estopped from asserting an unencumbered interest in the property. Thus Wells Fargo’s complaint was timely.

Decided March 26, 2015

Reconsideration denied April 14, 2015.

Mickey J. Barron, pro se.

Baker Donelson Bearman Caldwell & Berkowitz, Scot H. Michalove, Daniel P. Moore, for appellee.

(d) Barron contends that the trial court failed to consider his submission of material facts as to which there exists a genuine issue. But the trial court’s application of judicial estoppel controls all material issues of fact regarding Wells Fargo’s claims.

3. Barron has not argued or cited authority in support of his counterclaims and, accordingly, has abandoned any claims of error in that regard. See Court of Appeals Rule 25 (c) (2). Moreover, all of Barron’s counterclaims are dependent on the same issue resolved by way of judicial estoppel. For all of the above reasons, the trial court did not err by granting summary judgment in favor of Wells Fargo on its claims and on Barron’s counterclaims.

4. Barron’s assertion in his reply brief that his original counsel was ineffective is not grounds for reversal. “[T]he constitutional right to effective assistance of counsel does not extend to participants in a civil dispute.” Mathes v. Mathes, 267 Ga. 845 (483 SE2d 573) (1997) (citation omitted). Moreover, this Court will not consider arguments raised for the first time in a reply brief. Vann v. Finley, 313 Ga. App. 153, 154, n. 2 (721 SE2d 156) (2011).

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       These figures are shown on an official form Schedule D, and the value for the unsecured portion of the claim is shown in a column entitled “UNSECURED PORTION, IF ANY.” The Advisory Committee Notes for the official form explain that this column shows “the amount of any unsecured portion of the claim,” i.e., “amounts that exceed the value of the collateral.” Fed. R. Bankr. P. OFFICIAL Form B 6, “1991 Enactment” and “2006 Amendment.” (Emphasis supplied.)


source: Caselaw Access Project

author:
DOYLE, Presiding Judge.
      Miller, Judge,

license: Public Domain

text:
    A14A2105.
    TUCKER v. PEARCE et al.
    (771 SE2d 495)
   DOYLE, Presiding Judge.

Tammy Pearce (“the Plaintiff”), individually and as administrator of the estate of her husband, Christopher Pearce (“Pearce”), filed a wrongful death suit against Glynn County Police Officer Henry Tucker after Pearce committed suicide while in the custody of the Glynn County Police Department. Officer Tucker filed a motion for summary judgment, and, following a hearing, the trial court denied in part Officer Tucker’s motion. Officer Tucker appeals, contending that the trial court erred by denying his motion for summary judgment because any negligent acts on his part were discretionary and because there was insufficient evidence that his acts proximately caused Pearce’s death. For the reasons that follow, we reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

On appeal from a denial of a motion for summary judgment, we conduct a de novo review of the evidence.

So viewed, the evidence shows that Pearce suffered from major depressive disorder. On Sunday, October 26, 2008, Hugh Harrison, Pearce’s pastor at the People’s Liberty Baptist Church, noticed that something was bothering Pearce. Pearce told Harrison that Harrison had been a good friend to him, and Harrison thought it was odd that Pearce used the past tense.

Later that night, at around 9:45, Pearce rang the doorbell at Harrison’s home. Harrison looked out of the peephole, and when he observed that Pearce was holding a gun, Harrison retrieved and loaded his own gun. Meanwhile, Harrison’s wife called 911 and reported that Pearce had a gun and was possibly on medication. A few minutes later, Pearce again rang the doorbell of Harrison’s home and knocked on the door with the butt of his gun.

At approximately 10:15 p.m., Officer Tucker and Officer Tomlin-son arrived at Harrison’s home in response to the 911 call. Pearce was walking down Harrison’s driveway toward the officers as they arrived. The officers stopped their cars, got out, and approached Pearce, who had tucked his gun in the back of his waistband. The officers then drew their weapons. On Officer Tucker’s orders, Pearce put up his hands and got down on his knees, and Officer Tomlinson took Pearce’s gun.

Officer Tucker handcuffed Pearce, and the officers placed Pearce in the back of Officer Tucker’s patrol car. Other than indicating that his shoulder hurt, Pearce did not say anything to the officers, and he had a blank look on his face. Pearce was cooperative, but his silence and “weird look” struck Officer Tucker as odd.

While still at the Harrisons’ residence, Officer Tomlinson retrieved Pearce’s driver’s license, which was wrapped in two notes. The first note read, “Tammy and kids, [not] your fault. I love you and always will.” The second note, which was signed “Chris,” read, “[Too] much PAIN. [Too] much [RIDICULE], NO UNDERSTANDING. NO MORE PAIN. FORGIVE ME!” Although Officer Tomlinson stated in his supplemental police report that he and Officer Tucker reviewed the notes, at his deposition, Officer Tomlinson testified he believed he shared them with Officer Tucker at some point, but could not remember if it was at the Harrisons’ or back at the station; he did not recall discussing the notes with Officer Tucker at all. Officer Tucker could not recall whether he read the notes. Nonetheless, Officer Tomlinson testified that he did not perceive the notes to be suicide notes.

After placing Pearce in the car, the officers went inside the Harrisons’ house. Harrison told the officers that Pearce was not acting like himself at church that day or evening and that Pearce seemed upset. Harrison also told police that Pearce had previously been in prison. Officer Tomlinson recalled that Harrison told him that Pearce “had been suffering from problems with his shoulder and had been in a lot of pain.” Harrison did not mention that Pearce might have been on medication, nor did he indicate any concern regarding Pearce’s mental health.

Officer Tomlinson called ahead to Glynn County Police Department headquarters and requested a criminal history report on Pearce to determine whether Pearce was a convicted felon. Officer Tucker then transported Pearce to police headquarters to detain him there pending a review of his criminal history.

When Officer Tucker arrived at headquarters shortly before 11:00 p.m., he got Pearce out of the car and walked him inside. Pursuant to standard procedure and not because of any concerns regarding the possibility of Pearce harming himself, Officer Tucker had Pearce remove his shoes, belt, tie, and the contents of his pockets. Officer Tucker then patted down Pearce and placed him in a holding cell, which contained a video camera. Officer Tucker advised dispatch that there was a detainee in the holding cell so that dispatch could monitor the cell through the connected video feed.

Officer Tucker also filled out a holding cell property receipt for Pearce’s personal property and had Pearce sign the receipt, which was stapled to a holding cell medical screening form that, pursuant to police department policy, officers were required to complete prior to placing an individual in a holding cell. The form was not completed, nor was it submitted to the on-duty supervisor, as required by police department policy. According to Officer Tucker, who was responsible for completing the medical screening form, he forgot to do so for Pearce. Officer Tucker later testified, however, that he did not believe that Pearce “was in any danger of hurting himself.” Instead, based upon his observations of Pearce, including his possession of a gun and the Harrisons’ statements to police, Officer Tucker believed that Pearce had gone to the Harrisons’ home to inflict harm upon them.

After leaving Pearce in the holding cell at approximately 10:54 p.m., Officer Tucker went to his sergeant’s office, where he was joined by Officer Tomlinson. At 11:01 p.m., another officer checked on Pearce, who appeared to be fine. At approximately 11:15 p.m., Officer Tomlinson left the sergeant’s office and discovered Pearce in the corner of his holding cell, with little color in his face. Officer Tomlin-son yelled for assistance, and Officer Tucker and the sergeant ran to the holding cell. Officer Tucker opened the holding cell door and saw Pearce slumped in the corner between the door and the wall, blue in the face. Officer Tucker performed CPR until emergency medical personnel arrived, and Pearce was transported to the emergency room, where he was pronounced dead at approximately 11:45 p.m. Surveillance footage of the holding cell showed that Pearce had committed suicide by tying together his socks and hanging himself from a door hinge. At most, 21 minutes elapsed from the time Pearce was placed in the holding cell and when officers discovered him not breathing in his cell; no more than 14 minutes elapsed between when Officer Rainey checked on him and officers noticed him not breathing.

On appeal, Officer Tucker argues that the trial court erred by denying his motion for summary judgment on the ground of official immunity and because there was insufficient evidence that his acts proximately caused Pearce’s death. Pretermitting whether official immunity bars the plaintiff’s claims against Officer Tucker, the trial court erred by denying him summary judgment because there is no justiciable issue of causation.

The issue here is whether Officer Tucker’s failure to medically screen Pearce “was the proximate cause of [Pearce’s] suicide or whether the suicide was an unforeseeable act that was not caused by [Officer Tucker’s] failure to [act].”

From a legal point of view, proximate cause means that the suicide must have been a foreseeable result of the negligence of the tortfeasor. Negligence is not actionable unless it is the proximate cause of the injury. A wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience. Generally, suicide is an unforeseeable intervening cause of death which absolves the tortfeasor of liability. Although, there is an exception to this general rule: Where the tortfeasor’s wrongful act causes the injured party to kill himself during a rage or frenzy, or in response to an uncontrollable impulse, the wrongful act is considered to be the proximate cause of the suicide.

In Harvey v. Nichols, the plaintiff filed a wrongful death action against the sheriff, the jail manager, and two detention officers after 17-year-old Thomas Reagin hanged himself with a bed sheet in a holding cell. During booking, Reagin revealed that he had “some” psychiatric problems as a child and had undergone anger management, but according to a county officer,

Reagin did not appear to be a danger either to himself or others, and ... he gave no indication of unusual behavior. However, because of Reagin’s age and the seriousness of the crime with which he was charged, [the officer] wrote on the intake form that Reagin should be placed in an observation cell “due to high risk.”

Later, after meeting with Reagin for 30 to 45 minutes, reviewing the nurse’s notes, and speaking with a detective regarding his impressions of Reagin, the jail manager reassigned him from an observation cell to a holding cell at approximately 4:00 p.m. Detention Officers Ledford and Gardner were responsible for monitoring the holding cells. There was conflicting evidence regarding whether Ledford and Gardner took Reagin his dinner at 5:30 p.m. or 7:30 p.m., and although Ledford claimed to have checked on Reagin between 8:00 p.m. or 8:15 p.m, there was no corresponding entry made in the log book. At 9:13 p.m., Ledford found Reagin hanging in his cell.

We concluded that “[t]he actions of Ledford and Gardner, dictated as they were by established procedure and requiring merely the execution of a specific duty, were ministerial in nature,” and because there was some evidence that they failed to monitor Reagin “on a regular basis and were thus negligent in performing their duties,... the trial court erred [by] granting summary judgment to [them] on official immunity grounds.” We also concluded, however, that

there was no evidence that Reagin’s suicide was a probable consequence of the detention officers’ failure to monitor his cell. All of the jail personnel who encountered Reagin testified that he acted in a normal fashion, was outgoing and under control, and readily spoke with the officers. Nothing about his behavior suggested anything out of the ordinary or that he might be a danger to himself. Reagin was not placed on suicide watch. Nothing in the record before this Court suggests that, if the surveillance protocol had been followed, Reagin would not have been able to take his own life. Any assertion that Reagin’s attempt at suicide would have been unsuccessful if procedure had been followed is pure speculation.

Accordingly, we affirmed the grant of summary judgment to Ledford and Gardner because “as a matter of law,” their “failure... to observe Reagin on a regular basis was not the proximate cause of Reagin’s [suicide].”

Here, as in Harvey, “[t]here is no evidence that [Pearce] was in a rage or frenzy or had an uncontrollable impulse when he took his life. On the contrary, [Pearce] was calm and controlled and appear [ed] to have known what he was doing.” Accordingly, the exception does not apply, leaving the general rule regarding suicide and proximate cause that “suicide is an unforeseeable intervening cause of death which absolves [Officer Tucker] of liability.” Viewed in favor of the plaintiff, there is no evidence that Pearce would have been unable to commit suicide if Officer Tucker had medically screened him before placing him in the holding cell. The plaintiff’s argument that during such a screening Pearce would have offered information or acted in a manner indicating that he was a suicide risk or that Officer Tucker would have concluded that Pearce was a suicide risk is purely speculative. And “uninformed speculation^] which raises merely a conjecture or possibility [,] is not sufficient to create even an inference of fact for consideration on summary judgment.” Pearce’s suicide was an unforeseeable intervening act for which Officer Tucker was not liable, and therefore, the trial court erred by denying Officer Tucker’s motion for summary judgment.

Judgment reversed.

Phipps, C. J., Andrews, P. J., Ellington, P. J., Dillard and McMillian, JJ., concur. Miller, J., dissents.

Miller, Judge,

dissenting.

Every day, our police officers do excellent work in the tough job of protecting and serving citizens and communities throughout the state of Georgia. Their work, often under difficult circumstances, is commendable. When a police officer, however, fails to follow his own department’s policies and procedures, this Court cannot condone such actions, especially where, as here, simply following his department’s policy may have prevented injury or death.

To prevail at summary judgment under OCGA § 9-11-56, Officer Tucker must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to Pearce, warrant judgment as a matter of law. See Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). Where there are outstanding issues of material fact to be decided, summary judgment is not proper. See id. at 245 (2). For this reason, I would affirm the trial court’s ruling.

On the night of Sunday, October 26, 2008, Christopher Pearce went to his pastor’s home with a gun. The pastor had noticed that something was bothering Pearce earlier that day at church service. Obviously concerned, the pastor called 911, and Glynn County Police Department Officers Tucker and Tomlinson responded and took Pearce into custody and down to the police station. Less than an hour after being taken to the police station and having been placed in a holding cell, Pearce was dead.

Police officers’ discretionary actions are covered by official immunity. See McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009). This protection is essential so that they can confidently and expeditiously do their jobs. Police officers, however, have certain routine acts that are ministerial in nature. See id. (a ministerial act is one that is simple, absolute, and definite, requiring merely the execution of a specific duty). These acts are part of the routine duties that police officers are trained to perform each and every day. After taking someone into custody and placing him in a holding cell, Glynn County Police Department officers must, among other things, inquire into a detainee’s health, fill out a medical screening form and submit the completed form to their on-duty supervisor. Glynn County Police Department Order 22.16.3 (E) provides:

The officer must fill out the screening form noting and inquiring as to: 1. The current health of the detainee[;] 2. Medications taken by detainee [;] 3. Behavior, including state of consciousness and mental síaíi¿s[;] and 4. Body deformities, trauma markings, bruises, lesions, ease of movement, etc.

The majority does not address the threshold issue of official immunity. The acts of inquiring into the detainee’s health, completing the medical screening form and giving the form to the on-duty supervisor were simple, absolute, definite, and mandatory acts, governed by clear Department policies and procedures. These were unquestionably ministerial acts.

Viewing the record in the light most favorable to Pearce, there were numerous red flags that would have alerted a reasonable person that Pearce was suicidal. In this case, Pearce went to his pastor’s home with a gun; Pearce was carrying two suicide notes, stating that he was in too much pain and seeking forgiveness; it was reported to police that Pearce was possibly on medication; and Officer Tucker undeniably knew that Pearce was acting abnormally. Despite all these red flags, Officer Tucker failed to complete the medical screening form.

Contrary to the majority’s contention that the policy did not require Officer Tucker to talk to Pearce before completing the medical screening form, the policy specifically states that the officer must “inquire” as to the detainee’s health, behavior, medications, and markings. An inquiry is required by both the form and the policy on its face. Here, there is no evidence that the officers investigated, inquired into or asked about any of these factors. Inquiring into Pearce’s health could have revealed his suicidal intentions.

The department’s medical screening policy is in place specifically to determine whether a person being detained has any physical or emotional problems that need medical attention. Given all the evidence in this case, Officer Tucker’s failure to fulfill his ministerial acts raises genuine issues of material fact for the jury as to whether Officer Tucker was negligent and whether the simple acts of inquiring into Pearce’s health, completing the medical screening form and notifying the on-duty supervisor would have alerted the officers to provide some care that could have prevented Pearce’s death. See Meagher v. Quick, 264 Ga. App. 639, 644 (1) (594 SE2d 182) (2003) (where officers failed to fulfill the ministerial duty of completing a report, there was a genuine issue of material fact as to whether their failure to do so resulted in a child’s death).

Decided March 30, 2015

Reconsideration denied April 14, 2015

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Terry Readdick, Richard K. Strickland, Steven Blackerby, Aaron W. Mumford, for appellant.

The majority’s assertion that Pearce’s theory of causation is speculative and that the medical screening would not have revealed that Pearce was suicidal is misguided. This is not a plain and undisputed case where this Court can say, as a matter of law, that Pearce’s suicide could not have been prevented. It is not for this Court to usurp the place of the jury and determine causation. See Ogletree v. Navistar Intl. Transp. Corp., 245 Ga. App. 1, 3 (1) (535 SE2d 545) (2000) (issues of causation are for the jury to resolve and should only be determined as a matter of law in plain and undisputed cases). Harvey v. Nichols, which the majority relies upon, is not this case, on the facts or the law. Moreover, Georgia has rejected the notion that suicide is per se an intervening act. See Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 116 (3) (b) (372 SE2d 265) (1988).

Officers cannot ensure the safety of everyone in custody, and this case will not open the floodgates of litigation against them. Officers can, however, ascertain whether a detainee is at risk and take the necessary precautions. Public safety cannot stop at the jail house door, and police officers are not free to ignore the clear and specific requirements mandated by their department’s policies and procedures. Contrary to the majority’s opinion, this suicide might have been prevented if Officer Tucker had fulfilled his simple ministerial acts, which were intended to prevent exactly the type of harm that occurred here. Accordingly, this case cries out for a closer look by a jury.

Bowen Painter, W. Andrew Bowen, Paul W. Painter III; Brennan Wasden & Painter, W. Richard Dekle, for appellees.

       The plaintiff also named Glynn County and Officer William Tomlinson as defendants. The trial court granted summary judgment to Glynn County and Officer Tomlinson, and it granted partial summary judgment to Officer Tucker on the basis that some of his acts were discretionary, entitling him to official immunity as to those acts. The plaintiff does not appeal those orders.

       (Citation and punctuation omitted.) Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

       See id.

       Officer Tucker also does not recall whether the 911 dispatcher advised him that Harrison’s wife mentioned that Pearce might have been on medication.

       Glynn County Police Department Order 22.16.3 (E) provides: “The purpose of the screening is to determine whether medical attention is required of the person to be detained.” The form includes blanks for basic information including the date, the officer’s identifying information, and the detainee’s name and address, as well as boxes with space to provide information in the following four categories: “Health condition,” “Medications,” “Behavior,” and “Body (Cuts, Bruises, Etc.)” The form does not provide the methodology officers should use when gathering the information to complete the form, nor does it specifically require an officer to assess a detainee’s suicide risk. With the exception of inquiring regarding medication, officers are not required to make verbal inquiries of a detainee when completing the form and may instead simply note their observations.

       Officer Tucker was disciplined for failing to complete the medical screening form.

        Harvey v. Nichols, 260 Ga. App. 187, 193 (2) (581 SE2d 272) (2003).

       (Punctuation omitted; emphasis supplied.) Id., quoting Dry Storage Corp. v. Piscopo, 249 Ga. App. 898, 900 (550 SE2d 419) (2001).

       See Harvey, 260 Ga. App. at 189-190.

       Id. at 188.

       See id. at 188-189.

       See id. at 189. The “[j]ail had established policies and procedures which governed the surveillance of inmates. All prisoners were to be observed on a regular basis, the frequency of observation depending on whether the prisoner was housed in an observation cell, a holding cell, or the general population.” Id. at 192 (1) (b).

       See id. at 189.

       See id.

       Id. at 192-193 (1) (b).

       Id. at 193-194 (2).

       Id. at 194 (2). We also noted that “[t]he exception to the general rule regarding proximate cause and suicide does not apply.” Id.

       Id.

       (Punctuation omitted.) Id. at 193 (2).

       The plaintiff argues that Pearce’s suicide would have been prevented if the medical screening had resulted in a determination that Pearce was suicidal and he was transported to a hospital. Given the department policy that individuals exhibiting signs of mental distress should be transported to the hospital after consultation with the watch commander and that Pearce committed suicide in the less than 22-minute window in which he was in the holding cell, this argument is also speculative.

       (Punctuation omitted.) Id. at 194 (2), quoting Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996).

       See Harvey, 260 Ga. App. at 194(2); Appling v. Jones, 115 Ga.App. 301, 307 (2) (154 SE2d 406) (1967) (physical precedent only).

       See Clark v. Prison Health Svcs., 257 Ga. App. 787, 793-794 (4) (a), (b) (572 SE2d 342) (2002) (alerting shift supervisor of detainee’s mental health referral and performing mental health assessment were ministerial acts); see also 1983 Ga. Const. Art. I, Sec. II, Par. IX (d).

       Suicide warning signs include: making statements about suicide; getting the means to commit suicide, such as obtaining a gun; and withdrawing from social contact. See Mayo Clinic, Suicide and suicidal thoughts, Symptoms, http://www.mayoclinic.org/diseases-conditions/ suicide/basics/symptoms/con-20033954 (visited March 26, 2015).

       Here, the evidence showed that Officer Tucker and Officer Tomlinson reviewed the suicide notes and knew that Pearce was possibly on medication. Although the majority states that there is conflicting evidence as to these issues, any conflicts in the evidence certainly raise material issues of fact for the jury.

       Inquire means to ask for information, or to search into. See Merriam-Webster, http://www. merriam-webster.com/dictionary/inquire (visited March 30, 2015). Nothing in the policy suggests that the officers’ inquiry is limited to medications. In fact, the policy explicitly states that the officers must inquire into all four areas.

       In Harvey, this Court noted that, “[a]ll of the jail personnel who encountered [the decedent] testified that he acted in a normal fashion, was outgoing and under control, and readily spoke with the officers.... [The decedent] was calm and controlled and appears to have known what he was doing.” (Citation omitted.) Harvey v. Nichols, 260 Ga. App. 187, 193-194 (2) (581 SE2d 272) (2003). Given all the red flags in this case, Pearce’s demeanor, which Officer Tucker described as abnormal, is not determinative here.


author: Phipps, Chief Judge.

text:
    A14A2119.
    A14A2120.
    STATE OF GEORGIA v. SUN STATES INSURANCE GROUP, INC. REGULATORY TECHNOLOGIES, INC. v. STATE OF GEORGIA.
    (770 SE2d 43)
   Phipps, Chief Judge.

The State of Georgia, on the relation of the Commissioner of Insurance, Ralph T. Hudgens, served as liquidator of International Indemnity Company (“IIC”), an insurance company in liquidation pursuant to the Insurers Rehabilitation and Liquidation Act (the “Act”). Regulatory Technologies, Inc. (“Reg Tech”) assisted in the liquidation of the IIC estate. Sun States, Inc. (IIC’s sole shareholder) sought relief from the trial court requiring the liquidator to be liable for money that Sun States alleged was wrongfully taken out of the IIC estate, and requiring the liquidator to pay its attorney fees.

In Case No. A14A2119, the State of Georgia on the relation of the Commissioner of Insurance, Ralph T. Hudgens, as liquidator of IIC, appeals the trial court’s denial of its motion to dismiss on the basis of sovereign immunity. In Case No. A14A2120, Reg Tech joins in the appeal filed by the State of Georgia. For the reasons set forth below, we affirm the judgment in part, reverse the judgment in part, and remand the case.

“We review de novo a trial court’s denial of a motion to dismiss based on sovereign immunity grounds, which is a matter of law. However, factual findings by the trial court in support of its legal decision are sustained if there is evidence authorizing them.”

Pursuant to the Act, in January 2001 the Commissioner of Insurance of the State of Georgia, then John W. Oxendine, was appointed by the superior court as the liquidator of IIC. The liquidator then appointed a deputy liquidator (Donald Roof) and an assistant deputy liquidator (Harry Sivley) to act for him in the liquidation of the IIC estate. Sivley was the co-founding principal and chief executive officer of Reg Tech, and according to Sivley, Reg Tech was an “integrated financial services company formed to assist in the supervision, conservation, rehabilitation and liquidation, of financial institutions and insurance companies.” Reg Tech assisted in the liquidation of IIC.

After the liquidation of IIC was concluded, in March 2008 the State of Georgia on the relation of the liquidator (hereinafter “state/ liquidator”) sought an order from the trial court approving the final accounting of the assets and expenses of the liquidated estate and discharging the liquidator, deputy liquidator and assistant deputy liquidator. Sun States, the sole shareholder of IIC, objected to the application for discharge, to the extent of “any other distributions to [Sivley] or [Reg Tech] or their affiliates.” Sun States complained about, inter alia, administrative expenses charged to the IIC estate, and asked the court to appoint an independent auditor to review “the change and allocation of administrative costs by Reg Tech and its affiliates and contractors to the IIC Estate.”

The court appointed an auditor, and almost sixteen months later (in February 2010), the auditor submitted a report to the court. The state/liquidator filed a modified accounting and application for discharge, incorporating some, but not all, of the credits (in the amount of $210,260.24) the auditor opined were due the IIC estate. In response, the trial court ordered the liquidator to provide certain explanations and additional data to the auditor, and ordered the auditor to supplement his report if he deemed it necessary based on the additional information. In February 2012, as ordered, the state/ liquidator supplemented its modified accounting and application and provided additional information to the auditor, and further agreed that additional credits should be made to the IIC estate (in the amount of $433,569.71). But the state/liquidator continued to refute allegations that the IIC estate had been charged excessive administrative expenses in the form of contract compensation, payroll, or overhead expenses for Reg Tech. The state/liquidator asserted that Reg Tech and/or Sivley had drawn funds directly from the IIC estate during the liquidation process to cover the costs of administration expenses, and that it had been done with little or no oversight from the liquidator. The auditor’s supplemental report, however, continued to raise issues as to these administrative expenses (payroll expenses, overhead expenses and contractual compensation expenses).

In August 2012, a joint pretrial order was entered. Therein, Sun States stated that it sought an order “surcharging” the liquidator, deputy liquidator, assistant deputy liquidator, and Reg Tech for excessive overhead expenses, over-allocation of contractual compensation, and excessive salary and benefits to Reg Tech personnel — matters identified in the audit. Sun States also sought attorney fees. The state/liquidator then moved to join Reg Tech as an indispensable party to the litigation; the trial court granted the motion, designating Reg Tech as a “respondent to the pending objection by shareholder [Sun States] to the Liquidator’s Modified Accounting.” Approximately nine months later (in June 2013), the state/liquidator moved to dismiss Sun States’s claims against it, asserting that they were claims for a money judgment against the state; the state/liquidator asserted that the claims were barred by the doctrine of sovereign immunity.

The trial court ruled that the State of Georgia, through the Act, had waived sovereign immunity to the extent that the court could order the liquidator to “repay,” or in other words to put back into, the liquidation estate any administrative expenses that were excessive or had been improperly removed from the IIC estate. The trial court also ruled that it had the authority to award attorney fees to Sun States (and thus, would permit evidence on the issue of attorney fees at trial).

Case No. A14A2119

1. The state/liquidator contends that the trial court erred by denying its motion to dismiss and in finding that sovereign immunity was waived by the Act. We agree.

“[Sovereign immunity protects from tort liability the State itself, including its agencies and instrumentalities^]”

Suits against public employees in their official capacities are in reality suits against the state and, therefore, involve sovereign immunity. The doctrine of sovereign immunity, also known as governmental immunity, protects all levels of governments from legal action unless they have waived their immunity from suit.
Article I, Section II, Paragraph IX (e) of the Georgia Constitution provides that “[t]he sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” In this regard, implied waivers of governmental immunity should not be favored. This does not mean, however, that the Legislature must use specific “magic words” such as “sovereign immunity is hereby waived” in order to create a specific statutory waiver of sovereign immunity.

A government waives sovereign immunity when an Act’s language provides both that sovereign immunity is waived, and the extent of any waiver.

Even assuming that the trial court was correct that the Act impliedly provided that sovereign immunity was waived by the provisions of the Act which give the supervising court “wide” powers in reviewing expenses and permit the court to audit the books of the estate in liquidation, provide that the results of any such audit are to be filed with the court, mandate that at the end of the liquidation the liquidator shall apply to the court for discharge, and authorize the supervising court to grant the discharge and make any other orders as may be deemed appropriate, the Act fails to state the extent of any waiver except where the damage, loss, injury or liability claimed was caused by the intentional or willful and wanton misconduct of the receiver or an employee of the receiver, which exception this opinion addresses in Division 2, infra.

In this case, the trial court relied, in part, on Colon v. Fulton County, to conclude that sovereign immunity was waived by the Act. In Colon, the Supreme Court of Georgia held that where, as in that case, the legislature had

specifically created a right of action against the government that would otherwise be barred by sovereign immunity, and ha[d] further expressly stated that an aggrieved party was entitled to collect money damages from the government in connection with a successful claim under the statute, there can be no doubt that the Legislature intended for sovereign immunity to be waived with respect to the specific claim authorized under the statute.

In Colon, the statutory provision that granted a public employee the right to bring an action against his employer for retaliation specifically provided that the waiver was limited to injunctive relief, reinstatement of the employee to employment, reinstatement of fringe benefits and seniority rights, compensation for lost wages, benefits, other remuneration, and any other compensatory damages allowable at law. In City of Atlanta v. Barnes, upon which the Supreme Court relied in Colon, a tax statute which provided the right to bring an action for a tax refund against a governmental body established that the extent of the waiver was the amount of the refund, and thus, sovereign immunity was waived. And in William son v. Dept. of Human Resources, another case upon which the Supreme Court relied in Colon, the Fair Employment Practices Act (“FEPA”), which created a right of action against the state, as an employer, for discrimination on the basis of an employee’s disability, provided that such action could result in a judgment for, inter alia, hiring, reinstatement, or upgrading of employees with or without back pay; the extension of the full and equal enjoyment of the advantages, facilities, privileges, and services of the respondent; and restoration of employment benefits not otherwise specified in the Code section. The FEPA also provided that any monetary award ordered shall be for actual damages only. Thus, the state by legislative act had specifically waived its sovereign immunity to the extent of the action authorized by the FEPA.

In this case, none of the provisions of the Act upon which the trial court based its judgment that the state had waived sovereign immunity, either independently or collectively, provide the extent of any such waiver of sovereign immunity, i.e., any specific relief recoverable by an aggrieved party, such as the right to collect money damages from the government in connection with a successful claim under the Act. Therefore, the trial court’s order is reversed to the extent of its judgment: (1) that the government waived sovereign immunity pursuant to the specified provisions of the Act; (2) that those specified provisions authorized the trial court to order the liquidator to repay the liquidation estate administrative expenses that were allegedly wrongfully removed from the liquidation estate; and (3) that attorney fees may be awarded to Sun States under the specified provisions.

2. The state/liquidator contends that the trial court erred by finding that OCGA § 33-37-8.1 (b) did not apply to an application for discharge. However, the trial court made no such finding.

After concluding that the State, through the specified “statutory framework” of the Act, waived sovereign immunity, the trial court turned to a specific provision of the Act, OCGA § 33-37-8.1 (b). Without concluding that the statute was not applicable in the case, the court stated that “even if OCGA § 33-37-8.1 (b) were applicable to objections regarding a Liquidator’s application for discharge, it provides no immunity ‘for any damage, loss, injury, or liability caused by the intentional or willful and wanton conduct of the receiver or any employee.’ ”

The court concluded that (during the course of the hearing on the liquidator’s request for discharge) evidence could be introduced to show that the intentional or wanton conduct of the liquidator or his deputies permitted the payment of excessive or improper administrative expenses of the IIC estate. The court cited the following as a basis for its ruling: the close and longstanding relationship between the former Insurance Commissioner (who was the liquidator) and Reg Tech (whose principal was Sivley, the assistant deputy liquidator); Sivley’s company, Reg Tech, had been permitted to charge millions of dollars against the IIC estate pursuant to what was “essentially” an oral business arrangement; Sivley and Reg Tech had been provided “great latitude” to charge expenses against the IIC estate with little or no contemporaneous review from the liquidator as to the propriety of the charges or their amounts; the record suggested that the books involving this liquidation were in disarray; it took a lengthy time to complete the court-ordered audit, in part, because key records were lacking; and, years after seeking a discharge, the liquidator continued to discover significant new expenses and accounting issues related to the IIC estate.

We construe the court’s language concerning the applicability of OCGA § 33-37-8.1 (b) as the court reaching an alternative basis upon which to deny the state/liquidator’s motion to dismiss, not as a ruling that OCGA § 33-37-8.1 (b) did not apply to this matter. The state/ liquidator opposed Sun States’s argument that OCGA § 33-37-8.1 did not apply. Accordingly, the trial court’s ruling that it would consider further evidence in connection with the applicability of OCGA § 33-37-8.1 (b) to this matter is affirmed, and we remand this case to the trial court for consideration of Sun States’s objections related thereto and to the relief Sun States seeks in accordance with OCGA § 33-37-8.1 (b).

Case No. A14A2120

3. In light of the conclusions reached in Divisions 1 and 2 in Case No. A14A2119, we need not address Reg Tech’s arguments in Case No. A14A2120; Reg Tech had joined in the appeal filed by the State of Georgia. The judgment of the trial court is affirmed in part, reversed in part, and the case is remanded as set forth in Case No. A14A2119.

Decided March 27, 2015

Reconsideration denied April 14, 2015

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, Daniel S. Walsh, Jeffrey W. Stump, Senior Assistant Attorneys General, for State of Georgia.

Barnes & Thornburg, Thomas J. Gallo, for Sun States Insurance.

Robbins Ross Alloy Belinfante Littlefield, Richard L. Robbins, Alexa R. Ross, Alexander F Denton, for Regulatory Technologies.

Judgment affirmed in part and reversed in part, and case remanded in Case No. A14A2119.

Ellington, P. J., concurs. McMillian, J., concurs in Division 1 and concurs in judgment only as to Division 2. Judgment affirmed in part and reversed in part, and case remanded in Case No. A14A2120. Ellington, P. J., and McMillian, J., concur.

       Ga. Dept. of Corrections v. James, 312 Ga. App. 190, 193 (718 SE2d 55) (2011) (punctuation and footnote omitted).

       See OCGA § 33-37-1 et seq.

       During the pendency of this matter in the lower court, Ralph T. Hudgens became the Commissioner of Insurance for the State of Georgia (in January 2011), and by operation of law, Hudgens was substituted for Oxendine as a party to this action. See OCGA §§ 33-37-17 (a); 9-11-25 (d).

       See OCGA § 33-37-17 (a).

       See OCGA § 33-37-20 (a).

       See OCGA § 33-37-45 (a), pertinently providing, “When all assets justifying the expense of collection and distribution have been collected and distributed under this chapter, the liquidator shall apply to the court for discharge.”

       Sun States moved to intervene, but the motion was not granted or otherwise ruled on.

       The statutory provision for the priority of distribution of claims identifies nine classes of claims, of which the “[cjosts and expenses of administration during rehabilitation and liquidation” is the first class in the order of distribution of claims, and “shall be paid in full or adequate funds retained for such payment before the members of the next class receive any payment.” OCGA § 33-37-41.

       See OCGA § 33-37-48.

        Shekhawat v. Jones, 293 Ga. 468, 470 (1) (746 SE2d 89) (2013) (citation omitted).

        Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001) (punctuation and footnote omitted).

        Colon v. Fulton County, 294 Ga. 93, 95 (1) (751 SE2d 307) (2013) (citations and punctuation omitted).

       See Ga. Dept. of Corrections, supra at 194 (1), n. 17.

       OCGA § 33-37-48.

       Id.

       OCGA § 33-37-45 (a).

       Id.

       See OCGA § 33-37-8.1 (b), which provides:
      The receiver and his or her employees shall have official immunity and shall be immune from suit and liability, both personally and in their official capacities, for any claim for damage to or loss of property, personal injury, or other civil liability caused by or resulting from any alleged act, error, or omission of the receiver or any employee arising out of or by reason of their duties or employment, provided that nothing in this provision shall be construed to hold the receiver or any employee immune from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of the receiver or any employee.
      Pursuant to OCGA § 33-37-8.1 (a) (2), the term “employees” means “all present and former special deputies and assistant special deputies appointed by the Commissioner and all persons whom the Commissioner, special deputies, or assistant special deputies have employed to assist in a delinquency proceeding under this chapter.”

       Supra.

       Id. at 95-96 (1) (citations omitted).

       Id. at 96 (1); OCGA § 45-1-4 (e).

       276 Ga. 449 (578 SE2d 110) (2003), overruled on other grounds as stated in Sawnee Electrical Membership Corp. v. Ga. Dept. of Revenue, 279 Ga. 22, 25 (3), n. 1 (608 SE2d 611) (2005).

       Supra at 95 (1).

        City of Atlanta, supra at 451 (3) (pertinent tax statute provided: “Any taxpayer whose claim for refund is denied by the governing authority of the county or municipality or whose claim is not denied or approved by the governing authority within one year from the date of filing the claim shall have the right to bring an action for a refund in the superior court of the county in which the claim arises.”).

       258 Ga. App. 113 (572 SE2d 678) (2002).

       Supra at 95 (1).

       See OCGA § 45-19-20 et seq.

       OCGA §§ 45-19-21 (a) (3); 45-19-36 (b).

        Williamson, supra at 116 (1); OCGA § 45-19-38 (c).

       OCGA § 45-19-38 (d).

        Williamson, supra.

       See Colon, supra at 95-96 (1); City of Atlanta, supra; Williamson, supra.

       Supra.