City of Atlanta v. Victor Bennett

• Court: Court of Appeals of Georgia
• Decided: July 9, 2013
• Docket: A12A2063
• Status: Published

Opinion

THIRD DIVISION ANDREWS, P. J., DILLARD AND MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

July 9, 2013

In the Court of Appeals of Georgia A12A2063. CITY OF ATLANTA v. VICTOR BENNETT et al.

DILLARD, Judge.

Following a trial by jury and the return of a verdict by special interrogatory in

this class-action lawsuit brought by City of Atlanta firefighters (“the appellees”), the

Superior Court of Fulton County entered a judgment against the City of Atlanta (“the

City”), adopting the jury’s finding that a 2010 firefighter promotional examination

was tainted by cheating and issuing a permanent injunction related to any promotions

that would be made in the aftermath.1 On appeal, the City argues that (1) the trial

court erred by excluding the testimony of a City witness, (2) the trial court erred by

denying the City’s motion for directed verdict, (3) the jury’s verdict was not

1 We note that the Supreme Court of Georgia recently vacated portions of the trial court’s injunction order in Barham v. City of Atlanta, 292 Ga. 375 (738 SE2d 52) (2013). authorized by the evidence, (4) the trial court’s injunction was not supported by

evidence, and (5) the trial court erred in submitting the appellees’ claim for OCGA

§ 13-6-11 fees to the jury when they failed to give ante-litem notice. Because we

agree with the City that the trial court abused its discretion in excluding the testimony

of a City witness, we reverse and remand for a new trial.

This case arose when the appellees filed a class-action complaint in July 2010,

contending that the City of Atlanta Fire-Rescue Department’s 2010 lieutenant

promotional examination was tainted by cheating. Based on the appellees’ contention

that the City failed to conduct a fair administration of the promotional examination,

the lawsuit (1) alleged violations of statutory obligations, breach of contract, and

equal protection on behalf of firefighters who “did not cheat,” and (2) sought

equitable relief in the form of an injunction and OCGA § 13-6-11 attorney fees.

When the case proceeded to trial, the appellees’ evidence of cheating included

the fact that among the 173 test takers, five of the eight highest scorers were in the

same study group; the study group in question had close connections to high-ranking

fire-department officials, one of whom was involved in vetting the multiple-choice

exam questions and answers, and maintained computer access to same prior to the

exam’s administration; and expert testimony regarding statistical data that showed the

2 improbability of the 2010 score array based on, inter alia, the highest scores in past

exam years, the 2010 high scorers’ significantly lower scores on previous exams, and

comparisons between the 2010 high scorers’ outstanding results on the written

multiple-choice portion of the exam and their much poorer results on the oral portion

of the test.

In the course of the trial, one theory of cheating suggested by the appellees was

that the test takers accused of cheating could have accessed the exam questions and

answers electronically via a document maintained by a high-ranking fire-department

official who assisted in vetting the questions for the 2010 examination. The evidence

at trial also focused on the differences between exam development and security in

previous years, when the human-resources department was responsible for such

matters, and exam development and security in 2010, when the job was outsourced

to Booth Research Group in Colorado.

Following the presentation of evidence by both sides, the jury returned a

verdict in the appellees’ favor, and the trial court entered judgment on that verdict.

This appeal by the City follows, in which it makes the arguments enumerated supra.

3 1. First, the City contends that the trial court abused its discretion by excluding

from trial the testimony of the owner of Booth Research Group, the company that

developed the 2010 promotional examination. We agree.

At the outset, we note that the admission of evidence is “within the sound

discretion of the trial court and appellate courts will not interfere absent abuse of that

discretion.”2 Likewise, the issue of the admissibility or exclusion of expert testimony

“rests in the broad discretion of the court, and consequently, the trial court’s ruling

thereon cannot be reversed absent an abuse of discretion.”3 Nevertheless, we reiterate

that “[e]vidence having a tendency to establish facts in issue is relevant and

admissible, and no matter how slight the probative value, our law favors admission

of relevant evidence.” 4

In the case sub judice, the record reflects that after the appellees rested their

case, the City sought to call Dr. Walter Booth as a witness to rebut the appellees’

criticisms of the security surrounding development of the 2010 exam, particularly the

2 Am. Petroleum Prods., Inc. v. Mom & Pop Stores, Inc., 231 Ga. App. 1, 7 (3) (497 SE2d 616) (1998) (punctuation omitted). 3 Levine v. Suntrust Robinson Humphrey, __ Ga. App. __, __ (3) (740 SE2d 672) (2013) (punctuation omitted). 4 Am. Petroleum Prods., 231 Ga. App. at 7 (3) (punctuation omitted).

4 suggestion that cheating could have occurred by accessing the electronic document

maintained by a high-ranking fire department official after the exam questions and

answers were vetted by three subject-matter experts from the department. The

appellees objected to the admission of Booth’s testimony on the basis that he was an

undisclosed expert witness, but the City disagreed with the appellees’ characterization

of Booth’s expected testimony as being that of an expert and noted that Booth had

been listed in the pretrial order as a “may call” witness.

Following argument by the parties, the trial court disallowed Booth’s testimony

and took issue with both what it deemed a delayed identification of the witness in the

pretrial order and the City’s potential use of Booth as an expert when the City never

identified him as one. The City then requested an opportunity to make a proffer of

Booth’s proposed trial testimony, which the court allowed outside the jury’s presence.

Thereafter, Booth testified that his company was primarily involved in

“promotional written tests, assessment centers, and oral interviews for police and fire

departments across the nation” and that the company developed the 2010 lieutenant

and captain firefighter promotional examinations for Atlanta. Booth then explained

how test bank questions are generally sent to departments for review, detailing that

test items are sent under password protection; that more items will be sent for review

5 than will actually appear in the final exam, and the department “never knows which

items will be actually used on the final exam”; that the question numbers and order

change between review by the department and creation of the final exam; that the

multiple-choice-answer letter designations will switch on many items between review

by the department and creation of the final exam; and that, in Atlanta, because the

lieutenant and captain exams were based on the same source material, some items

were moved between the two exams with the company making “the final

determination of which items would appear on which test.” Finally, Booth testified

that other than his staff, no one is allowed to see a final version of a test prior to exam

administration and that the company never had any problems with breaches, hacking,

or leaks.

The trial proceeded without the jury hearing Booth’s testimony. But at a later

recess, the court expressed reservations about the decision to exclude the testimony,

with the judge acknowledging that she “had some concerns about the ruling at the

time” and was “afraid that it’s reversible error for me to exclude . . . probative[,]

relevant evidence even if it’s a clear discovery violation.”

6 In voicing her concern, the trial judge cited this Court’s decision in Hart v.

Northside Hospital,5 in which we held that although a party had inexcusably failed

to “faithfully engage in discovery in compliance with the extended discovery

deadline”6 and, thus, had failed to timely identify expert witnesses, “the trial court

abused its discretion in granting [a] motion in limine seeking to exclude testimony

from the . . . two experts who were identified.”7 Indeed, we noted that “[t]he only

appropriate remedy for [the] alleged failure to update [the] discovery responses . . .

was postponement of trial or a mistrial.”8 Based on this precedent, the trial court in

the case sub judice indicated that it would reverse its own ruling and permit Booth’s

testimony, and the City offered to make Booth available to the appellees for a

deposition later that evening.

But in response to the trial court’s new decision, the appellees argued that Hart

was distinguishable based on footnote 9 of that opinion, which emphasized that the

case was not one in which “a party violated a court order explicitly directing the party

5 291 Ga. App. 208 (661 SE2d 576) (2008). 6 Id. at 209 (1) 7 Id. at 210 (1). 8 Id. (punctuation omitted).

7 to identify an expert witness for trial, nor did the order at issue warn parties of

potential sanctions for failure to meet deadlines, such as the exclusion of evidence or

the dismissal of the action.”9 In light of that fact, we “limit[ed] our holding to the

specific issue before us, and [did] not purport to limit a trial court’s authority to issue

such orders.”10 Thus, the appellees thereafter maintained that Booth was an expert

witness who had never been identified as such despite repeated scheduling-order

deadlines and extensions by the trial court to allow for the identification of expert

witnesses. And hearing this argument, the trial court again changed course and

determined that, “[i]n light of having three orders saying you need to identify these

people and you all failing to identify Booth, I will stick to my original order.”

Although the City repeated its assertion that Booth was not being presented as an

expert, the trial court disagreed and determined that “the areas of technology and

security do rise to the level of expertise . . . .”

On appeal, the City contends that the trial court’s decision to exclude Booth’s

testimony as being that of an expert witness who was unidentified in violation of

court orders was an abuse of discretion because Booth was presented as a fact

9 Id. at 210 (1) n.9. 10 Id.

8 witness, not an expert. The appellees, however, still argue that Booth was an expert

witness and that the City violated successive court orders in failing to identify him

as such. But because we agree with the City that Booth’s proffered testimony was not

that of an expert, we likewise agree that the trial court abused its discretion by

excluding Booth’s testimony on the basis that he was undisclosed as an expert in

violation of successive orders.

In Georgia, when “scientific, technical, or other specialized knowledge will

assist the trier of fact in any cause of action to understand the evidence or to

determine a fact in issue,”11 a witness who is qualified as an expert “by knowledge,

skill, experience, training, or education may testify thereto in the form of an opinion

or otherwise”12 if (1) the testimony is based on sufficient facts or data admitted into

11 Former OCGA § 24-9-67.1 (b), repealed by Ga. Laws 2011, Act 52, § 2 (effective Jan. 1, 2013). OCGA § 24-7-702 (b), which became effective January 1, 2013, contains language identical to that quoted above from former OCGA § 24-9- 67.1, but the provisions of Georgia’s new evidence code “apply to any motion made or hearing or trial commenced on or after” January 1, 2013. Ga. Laws 2011, Act. 52, § 101. Because the relevant trial occurred before this date, the prior evidence code applies in the case sub judice. 12 Former OCGA § 24-9-67.1 (b).

9 evidence, (2) the testimony is the product of reliable methods and principles, and (3)

the witness applied the methods and principles reliably to the relevant facts.13

Here, despite the appellees’ contentions to the contrary, Booth’s testimony was

very clearly that of a fact witness with personal knowledge of his company’s general

operating procedures in developing promotional exams for review and eventual

administration by police and fire departments.14 And although that testimony touched

on basic security features in the manner of password protection and scrambling

answers, this testimony was based upon observable facts and was not the sort of

testimony that could reasonably be characterized as an expert opining as to the

sufficiency or insufficiency of security measures.15 Accordingly, the trial court abused

13 See id. 14 Cf. Jones v. Scarborough, 194 Ga. App. 468, 470 (3) (390 SE2d 674) (1990) (holding that trial court erred in prohibiting discovery or testimony from a witness it deemed an expert when appellant merely sought to discover facts that were observed by the witness). 15 Cf. Raines v. Maughan, 312 Ga. App. 303, 308 (2) (c) (718 SE2d 135) (2011) (physical precedent only) (explaining that expert witness “was allowed to opine that the security measures at the complex were inadequate and deficient”); Birge v. Dollar Gen. Corp., No. 04-2531 BP, 2006 WL 5179319, at *3 (II) (W.D. Tenn. 2006) (excluding proffered expert testimony when witness did not “have any expertise or training that qualifie[d] him to provide expert testimony concerning the deterrent effect of security measures on criminal defendants”); Bethea v. Bristol Lodge Corp., No. CIV.A. 01-612, 2002 WL 31859434, at *5 (II) (A) (E.D. Pa. 2002) (excluding

10 its discretion by determining that Booth was an expert witness who had never been

identified as such in violation of the scheduling orders. And based on this

misapprehension, the trial court excluded material testimony that cast doubt on the

appellees’ theories of cheating.16

Additionally, pretermitting whether Booth could even be deemed a “surprise”

factual witness when he was listed in the pretrial order,17 if the trial court believed

proffered expert testimony regarding alleged deficiencies in security measures when witness “cite[d] to no industry standard for his opinions on the requisite necessities for adequate security” and did not “provide any explanation that could be tested or subjected to peer review as to how he has reached these opinions”); Newell v. Best Sec. Sys., Inc., 560 So2d 395, 397 (Fla. Dist. Ct. App. 1990) (upholding exclusion of expert testimony as to “propriety of security measures taken in light of prior criminal activity in the area” when the opinion was not based upon valid underlying data). 16 See Ga. Bldg. Servs., Inc. v. Perry, 193 Ga. App. 288, 290 (1) (a) (387 SE2d 898) (1989) (holding that trial court erred in excluding material testimony when court misapprehended party’s awareness of witness). 17 See id. (holding that trial court abused its discretion by excluding the testimony of a witness who was listed as a “may call” witness in pretrial order because appellees “could no longer claim they were surprised by appellants’ decision to call” the witness); see also Foster v. Morrison, 177 Ga. App. 250, 250-51 (2) (339 SE2d 307) (1985) (holding that trial court properly denied motions for continuance and mistrial when counsel was notified of new witnesses within five days of trial as specified by pretrial order); Kamensky v. Stacey, 134 Ga. App. 530, 532 (1) (215 SE2d 294) (1975) (“[When] the complaining party cannot legitimately claim surprise, either because he knew of the existence of the witness or had equal means of knowing, it is not error to fail to invoke the sanctions of postponement, mistrial, barring the witness, etc.”). Cf. Malley Motors, Inc. v. Davis, 183 Ga. App. 599, 600

11 that the City failed to properly comply with discovery, the only appropriate remedy

was postponement of trial or a mistrial.18 Indeed, exclusion of probative trial evidence

is “not an appropriate remedy for curing an alleged discovery omission.”19 Because

the trial court’s failure to allow Booth’s material testimony was an abuse of

discretion, we are constrained to reverse for a new trial.20

2. The City also contends that the trial court erred by submitting the issue of

OCGA § 13-6-11 fees to the jury when the appellees failed to provide ante-litem

(1) (359 SE2d 394) (1987) (holding that trial court abused its discretion in permitting the testimony of a witness who was not listed in the pretrial order, and no reason was given for the failure to list the witness). 18 See Hunter v. Nissan Motor Co. Ltd. of Japan, 229 Ga. App. 729, 730 (1) (494 SE2d 751) (1997) (“The only appropriate remedy for [the] alleged failure to update [appellant’s] discovery responses or her expert witness’ deposition testimony in the case sub judice . . . was postponement of trial or a mistrial.”). 19 Id. at 729 (1). But see Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 480 (6) (491 SE2d 909) (1997) (“Exclusion of a witness is proper only where there has been a deliberate suppression of the witness’ name.” (punctuation omitted)). 20 See Ga. Bldg. Servs., 193 Ga. App. at 290 (1) (a) (“We find the failure of the trial court to allow the witness to testify constituted an abuse of discretion requiring reversal and a new trial.”); see also Skating Clubs of Ga., Inc. v. Hayes, 153 Ga. App. 857, 858 (2) (267 SE2d 285) (1980) (“No matter how competent evidence might be, a new trial will not be granted merely because evidence has been excluded. It must appear that the excluded testimony was material and the substance of what the material evidence is must be called to the attention of the trial court at the time of its exclusion.” (punctuation omitted)).

12 notice pursuant to OCGA § 36-33-5. Specifically, the City argues that the court

should have granted its motion for summary judgment on this issue. Because the

question of OCGA § 13-6-11 fees will likely reoccur,21 we address this enumeration

of error and hold that the trial court did not err in denying the City’s motion for

summary judgment when, as a matter of law, the City was not entitled to ante-litem

notice.

To begin with, OCGA § 36-33-5 specifies that “[n]o person, firm, or

corporation having a claim for money damages against any municipal corporation on

account of injuries to person or property shall bring any action against the municipal

corporation for such injuries, without first giving notice as provided in subsection (b)

of this Code section.” 22 And OCGA § 13-6-11 provides that, although “[t]he expenses

of litigation generally shall not be allowed as a part of the damages,” when “the

plaintiff has specially pleaded and has made prayer therefor and [when] the defendant

21 See Weir v. Kirby Constr. Co., 213 Ga. App. 832, 836 (4) (446 SE2d 186) (1994) (“[When] the verdict is reversed [and] the case is remanded for new trial . . ., [i]f the denial of summary judgment is enumerated as error, OCGA § 5-6-34 (d) requires us to address that enumeration if it will affect the proceedings below.” (emphasis omitted)).

22 OCGA § 36-33-5 (a) (emphasis supplied).

13 has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff

unnecessary trouble and expense, the jury may allow them.”23

The City argues that because the appellees failed to provide ante-litem notice

as required by OCGA § 36-33-5, they should be barred from recovering OCGA § 13-

6-11 fees. In support of this argument, the City relies upon this Court’s decision in

Dover v. City of Jackson.24 But this Court recently overruled the relevant holding in

that case, determining that Dover “improperly concluded” that ante-litem notice was

required for OCGA § 13-6-11 claims.25 Indeed, this Court has now held that,

consistent with the plain language of OCGA § 36-33-5,26 a plaintiff is not required

to give ante-litem notice on a claim for attorney fees and costs pursuant to OCGA §

13-6-11.27 Accordingly, this enumeration of error is without merit, and trial court did

23 OCGA § 13-6-11. 24 246 Ga. App. 524 (541 SE2d 92) (2000). 25 See Greater Atlanta Homebuilders Ass’n, Inc. v. City of McDonough, Case No. A12A0225, 2013 WL 3336655, at *2 (1) (Ga. App. July 3, 2013). 26 See City of Statesboro v. Dabbs, 289 Ga. 669, 670 (1) (a) (715 SE2d 73) (2011) (“As is clear from the plain text of this statute, it applies to tort claims regarding personal injury or property damage . . . .”). 27 See Greater Atlanta Homebuilders Ass’n, 2013 WL 3336655, at *2. Cf. Dabbs, 289 Ga. at 670 (1) (holding that ante-litem notice statute did not apply to claims for violations of the Open Meetings Act); City of Atlanta v. Benator, 310 Ga.

14 not err in denying the City’s motion for summary judgment and submitting this issue

to the jury.

3. The City’s final three enumerations of error all focus on the sufficiency of

the evidence in the trial below. However, because we have determined that a new trial

is necessary, we do not address these remaining enumerations of error.28

Accordingly, for all the foregoing reasons, the trial court’s judgment is reversed

and the case is remanded for a new trial.

Judgment reversed and case remanded with direction. Andrews, P. J., and

McMillian, J., concur.

App. 597, 602 (3) (714 SE2d 109) (2011) (holding that ante-litem notice statute did not apply to claims for unjust enrichment, money had and received, and breach of city code “because they are not claims for injury to person or property”); Neely v. City of Riverdale, 298 Ga. App. 884, 886 (1) (681 SE2d 677) (2009) (“[T]he ante litem notice requirement of OCGA § 36-33-5 is not applicable to suits for breach of contract.”). 28 See King v. Baker, 109 Ga. App. 235, 238 (14) (136 SE2d 8) (1964) (physical precedent only) (“In view of the fact that this case is being reversed and the evidence may be different and the verdict of the jury may be different upon another trial of the case, it is not necessary to determine whether the evidence presents sufficient data upon which the jury could have based the verdict for special damages, or whether there was sufficient evidence to sustain the verdict for the amount of general damages found, or whether the amount of punitive damages was excessive.”); Atlantic Coast Line R.R. Co. v. Clinard, 93 Ga. App. 64, 66 (6) (90 SE2d 923) (1955) (“Since the case is to be reversed on special grounds, we will not pass upon the general grounds, since, if the case is tried again, the evidence may be different.”).