FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and PHIPPS, P. J.
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 15, 2013
In the Court of Appeals of Georgia A12A1933. DOUGLAS ASPHALT COMPANY et al. v. LINNENKOHL et al.
ANDREWS, Presiding Judge.
Douglas Asphalt Company appeals after the trial court granted summary
judgment to Harold Linnenkohl based on OCGA § 50-21-25(a) which grants
immunity to State employees for acts within the scope of their employment. For
reasons that follow, we affirm.
The record shows that the Georgia Department of Transportation (DOT) hired
Douglas Asphalt to do asphalt paving work on certain highways in the state. It was
determined in testing done by Applied Technical Services (ATS) that there were lime
deficiencies in the asphalt on portions of the I-95 and I-75 projects worked on by
Douglas. Douglas Asphalt was declared in default on the projects, and subsequently filed suits in state and federal court against the DOT and ATS. In
the federal suit, filed against QORE, an engineering and materials testing company,
ATS, and several individual Georgia DOT officials, Douglas Asphalt claimed that:
none of the tests that QORE or ATS performed was capable of accurately quantifying the amount of hydrated lime in the asphalt samples; it also alleged that QORE, ATS, and the named GDOT officials were all aware of this before the completion of those tests. Douglas asserted that by performing what it called fraudulent tests and enabling GDOT to rely upon them to declare it in default on both projects, the defendants had violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. The complaint also contained state-law claims for negligent misrepresentation, fraud, and defamation against QORE and ATS.
Douglas Asphalt Co. v. QORE, 657 F.3d 1146, 1150 (11th. Cir. 2011).
In the case before us, Douglas Asphalt claims that Linnenkohl stated while he
was commissioner of the DOT that the atomic absorption test used by ATS was
reliable; but in 2009, Linnenkohl testified in the federal suit that he never considered
the atomic absorption tests to be reliable and that he did not rely on the absorption
tests. Douglas claims this was negligence, contending that Linnenkohl owed a duty
to Douglas not to employ flawed tests as a basis for placing it in default. Douglas is
2 also claiming fraud and deceit, contending that Linnenkohl misrepresented that the
atomic absorption tests were valid.
Linnenkohl filed a motion to dismiss, stating that he was employed by the DOT
for 39 years and served as commissioner of the DOT during the time that the actions
complained of were taken and that all actions complained of were within the scope
of his official duties. A hearing was set for March 30, 2011, on the motion to dismiss,
converted by the trial court into a motion for summary judgment. Douglas Asphalt
sent a notice for a video conference deposition of Linnenkohl for March 28, 2011.
Linnenkohl filed a motion for a protective order, arguing that the trial court gave the
parties 30 days from November, 5, 2010 to present all materials pertinent to a motion
for summary judgment; therefore, the notice of deposition was untimely because the
first request for deposition was filed outside the 30-day period. Linnenkohl also
stated that the deposition was unnecessary because plaintiffs had already taken two
depositions and cross-examined him at trial on this same subject in the federal case.
After the hearing, the trial court gave Douglas Asphalt the opportunity to set
out the matters that it intended to bring up at the deposition. The trial court
subsequently granted the motion for summary judgment based on immunity, and this
appeal followed.
3 1. In its first enumeration of error, Douglas Asphalt contends that the trial court
erred in granting summary judgment without allowing further discovery that would
show that Linnenkohl’s tortious activity occurred when he was no longer acting as
a State employee. OCGA § 9-11-26(c) provides: “Upon motion by a party or by the
person from whom discovery is sought and for good cause shown, the court in which
the action is pending or, alternatively, on matters relating to a deposition, the court
in the county where the deposition is to be taken may make any order which justice
requires to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense.” “The grant or denial of a motion for protective order
generally lies within the sound discretion of the trial court. We therefore will not
reverse absent an abuse of discretion. The trial court is in the best position to make
determinations on these issues, and we will not overrule its judgment if there is any
reasonable evidence to support it.” (Citations and punctuation omitted.) Anderson v.
Mergenhagen, 283 Ga. App. 546, 548 (642 SE2d 105) (2007).
Douglas Asphalt informed the court that it wanted to ask Linnenkohl about any
efforts made to review DOT records before testifying in federal court in September
2009; the date of his retirement from DOT; conversations or correspondence between
Linnenkohl and DOT after his retirement; and conversations or correspondence
4 between Linnenkohl and counsel for the testing company after his retirement. On
appeal, Douglas Asphalt does not argue specifically what this further questioning of
Linnenkohl could have revealed beyond what was already covered in its previous
depositions and cross-examination in the federal case; nor does it give any reason for
the untimely notice of deposition. Counsel for Douglas stated at the hearing that he
did “not have an answer of why we did not address this earlier.” Accordingly, we
conclude there was no abuse of discretion in the trial court’s grant of the DOT’s
motion for protective order. See Anderson, supra; Exxon Corp. v. Thomason, 269 Ga.
761, 763 (504 SE2d 676) (1998) (“It is well-settled that the conduct of discovery is
within a trial court’s broad discretion.”).
2. Douglas Asphalt also enumerates as error the trial court’s grant of summary
judgment to Linnenkohl under OCGA § 50-21-25. It once again reiterates that it was
not permitted discovery to show that acts taken after Linnenkohl retired were not
protected by sovereign immunity but fails to support the claim that Linnenkohl was
not entitled to sovereign immunity with any argument or citation to authority or facts
in support of this enumeration beyond a sentence stating that “[e]ven with the limited
evidence Appellants were able to put forth, consideration of the facts in the light most
5 favorable to the Appellants does not support a legal conclusion that sovereign
immunity applied.
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FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and PHIPPS, P. J.
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 15, 2013
In the Court of Appeals of Georgia A12A1933. DOUGLAS ASPHALT COMPANY et al. v. LINNENKOHL et al.
ANDREWS, Presiding Judge.
Douglas Asphalt Company appeals after the trial court granted summary
judgment to Harold Linnenkohl based on OCGA § 50-21-25(a) which grants
immunity to State employees for acts within the scope of their employment. For
reasons that follow, we affirm.
The record shows that the Georgia Department of Transportation (DOT) hired
Douglas Asphalt to do asphalt paving work on certain highways in the state. It was
determined in testing done by Applied Technical Services (ATS) that there were lime
deficiencies in the asphalt on portions of the I-95 and I-75 projects worked on by
Douglas. Douglas Asphalt was declared in default on the projects, and subsequently filed suits in state and federal court against the DOT and ATS. In
the federal suit, filed against QORE, an engineering and materials testing company,
ATS, and several individual Georgia DOT officials, Douglas Asphalt claimed that:
none of the tests that QORE or ATS performed was capable of accurately quantifying the amount of hydrated lime in the asphalt samples; it also alleged that QORE, ATS, and the named GDOT officials were all aware of this before the completion of those tests. Douglas asserted that by performing what it called fraudulent tests and enabling GDOT to rely upon them to declare it in default on both projects, the defendants had violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. The complaint also contained state-law claims for negligent misrepresentation, fraud, and defamation against QORE and ATS.
Douglas Asphalt Co. v. QORE, 657 F.3d 1146, 1150 (11th. Cir. 2011).
In the case before us, Douglas Asphalt claims that Linnenkohl stated while he
was commissioner of the DOT that the atomic absorption test used by ATS was
reliable; but in 2009, Linnenkohl testified in the federal suit that he never considered
the atomic absorption tests to be reliable and that he did not rely on the absorption
tests. Douglas claims this was negligence, contending that Linnenkohl owed a duty
to Douglas not to employ flawed tests as a basis for placing it in default. Douglas is
2 also claiming fraud and deceit, contending that Linnenkohl misrepresented that the
atomic absorption tests were valid.
Linnenkohl filed a motion to dismiss, stating that he was employed by the DOT
for 39 years and served as commissioner of the DOT during the time that the actions
complained of were taken and that all actions complained of were within the scope
of his official duties. A hearing was set for March 30, 2011, on the motion to dismiss,
converted by the trial court into a motion for summary judgment. Douglas Asphalt
sent a notice for a video conference deposition of Linnenkohl for March 28, 2011.
Linnenkohl filed a motion for a protective order, arguing that the trial court gave the
parties 30 days from November, 5, 2010 to present all materials pertinent to a motion
for summary judgment; therefore, the notice of deposition was untimely because the
first request for deposition was filed outside the 30-day period. Linnenkohl also
stated that the deposition was unnecessary because plaintiffs had already taken two
depositions and cross-examined him at trial on this same subject in the federal case.
After the hearing, the trial court gave Douglas Asphalt the opportunity to set
out the matters that it intended to bring up at the deposition. The trial court
subsequently granted the motion for summary judgment based on immunity, and this
appeal followed.
3 1. In its first enumeration of error, Douglas Asphalt contends that the trial court
erred in granting summary judgment without allowing further discovery that would
show that Linnenkohl’s tortious activity occurred when he was no longer acting as
a State employee. OCGA § 9-11-26(c) provides: “Upon motion by a party or by the
person from whom discovery is sought and for good cause shown, the court in which
the action is pending or, alternatively, on matters relating to a deposition, the court
in the county where the deposition is to be taken may make any order which justice
requires to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense.” “The grant or denial of a motion for protective order
generally lies within the sound discretion of the trial court. We therefore will not
reverse absent an abuse of discretion. The trial court is in the best position to make
determinations on these issues, and we will not overrule its judgment if there is any
reasonable evidence to support it.” (Citations and punctuation omitted.) Anderson v.
Mergenhagen, 283 Ga. App. 546, 548 (642 SE2d 105) (2007).
Douglas Asphalt informed the court that it wanted to ask Linnenkohl about any
efforts made to review DOT records before testifying in federal court in September
2009; the date of his retirement from DOT; conversations or correspondence between
Linnenkohl and DOT after his retirement; and conversations or correspondence
4 between Linnenkohl and counsel for the testing company after his retirement. On
appeal, Douglas Asphalt does not argue specifically what this further questioning of
Linnenkohl could have revealed beyond what was already covered in its previous
depositions and cross-examination in the federal case; nor does it give any reason for
the untimely notice of deposition. Counsel for Douglas stated at the hearing that he
did “not have an answer of why we did not address this earlier.” Accordingly, we
conclude there was no abuse of discretion in the trial court’s grant of the DOT’s
motion for protective order. See Anderson, supra; Exxon Corp. v. Thomason, 269 Ga.
761, 763 (504 SE2d 676) (1998) (“It is well-settled that the conduct of discovery is
within a trial court’s broad discretion.”).
2. Douglas Asphalt also enumerates as error the trial court’s grant of summary
judgment to Linnenkohl under OCGA § 50-21-25. It once again reiterates that it was
not permitted discovery to show that acts taken after Linnenkohl retired were not
protected by sovereign immunity but fails to support the claim that Linnenkohl was
not entitled to sovereign immunity with any argument or citation to authority or facts
in support of this enumeration beyond a sentence stating that “[e]ven with the limited
evidence Appellants were able to put forth, consideration of the facts in the light most
5 favorable to the Appellants does not support a legal conclusion that sovereign
immunity applied.
“We review de novo a trial court’s ruling on a motion to dismiss based on
sovereign immunity grounds, which is a matter of law. Factual findings are sustained
if there is evidence supporting them, and the burden of proof is on the party seeking
the waiver of immunity.” (Citations and punctuation omitted.) Ga. Dept. of Transp.
v. Smith, 314 Ga. App. 412, 413 (724 SE2d 430) (2012).
OCGA § 50-21-25(a) provides: “This article constitutes the exclusive remedy
for any tort committed by a state officer or employee. A state officer or employee who
commits a tort while acting within the scope of his or her official duties or
employment is not subject to lawsuit or liability therefor. However, nothing in this
article shall be construed to give a state officer or employee immunity from suit and
liability if it is proved that the officer’s or employee’s conduct was not within the
scope of his or her official duties or employment.”
OCGA § 50-21-21(b) provides in pertinent part that:
the proper functioning of state government requires that state officers and employees be free to act and to make decisions, in good faith, without fear of thereby exposing themselves to lawsuits and without fear of the loss of their personal assets. Consequently, it is declared to be the
6 public policy of this state that state officers and employees shall not be subject to lawsuit or liability arising from the performance or nonperformance of their official duties or functions. (c) All of the provisions of this article should be construed with a view to carry out this expression of the intent of the General Assembly.
Here, in the complaint and at the hearing, the claims of negligence and fraud
concerned allegations that Linnenkohl lied while he was commissioner of the DOT
and as a result Douglas Asphalt was defaulted on its contracts. Further,
the record shows that Linnenkohl’s deposition testimony in the federal case was taken
on May 27, 2007, when he was still DOT commissioner. His testimony at trial was
on September 30, 2009 based upon actions taken while he was commissioner.
Accordingly, the trial court properly granted summary judgment to Linnenkohl based
upon his immunity for acts taken within the scope of his official duties.
Judgment affirmed. Doyle, P. J., and Phipps, P. J., concur.