305 Ga. 523 FINAL COPY
S18A1231. WYNO v. LOWNDES COUNTY et al.
BETHEL, Justice.
In this case, Jason Wyno challenges the constitutionality of former
OCGA § 4-8-30, a portion of the former Dangerous Dog Control Law which
purports to exempt local governments and their employees from liability
arising from their enforcement of, or failure to enforce, that law and local
dog-control ordinances. Wyno argues that this statute impermissibly extends
the official immunity of local government employees provided in Article I,
Section II, Paragraph IX (d) of the Georgia Constitution of 1983 (“Paragraph
IX (d)”) because former OCGA § 4-8-30 is not “a State Tort Claims Act.”
However, we do not reach that constitutional question in this case
because we determine that the trial court erred in its preliminary
determination that the relevant duties imposed by the former Dangerous Dog
Control Law and the Lowndes County Animal Control Ordinance in effect at the time of the incident giving rise to this suit were ministerial in nature. We
determine instead that the record before us demonstrates that the relevant acts
of the County Employees were discretionary. Moreover, because the record
before us does not contain evidence that the individual defendants acted with
malice or intent to injure, they are protected from Wyno’s lawsuit by the
official immunity provided by Paragraph IX (d). We therefore affirm the
grant of summary judgment in favor of the defendants, although for reasons
different than relied upon by the trial court.
1. Background
On December 8, 2011, Misty Wyno was attacked and killed by a dog
owned by one of her neighbors. In the years leading up to the attack,
numerous complaints about dogs at the neighbor’s address had been filed
with the Lowndes County Animal Control office.
Following Misty Wyno’s death, Jason Wyno brought a wrongful death
action against the dog’s owners, Lowndes County, and four individual
Lowndes County Animal Control employees — Weyman Bozeman, Eric
Sharp, Emanuel Shaw, and Linda Patelski (“County Employees”) — in both
their official and individual capacities. The complaint alleged that Lowndes
2 County and the County Employees negligently failed to perform ministerial
duties, negligently failed to provide police protection, negligently created and
failed to abate a nuisance, were negligent in their control of allegedly
dangerous dogs, and were negligent per se by violating several provisions of
the Lowndes County Animal Control Ordinance. The complaint also made a
demand for punitive damages and alleged that Lowndes County and the
County Employees “acted with actual malice and/or an intent to injure in
repeatedly refusing to investigate or take any action with regards to the
dangerous dogs[.]”
Lowndes County asserted the defense of sovereign immunity both for
itself and for its employees in their official capacities. The trial court
dismissed Lowndes County and the County Employees on that basis.
Additionally, Lowndes County and the County Employees asserted that
they were immune from liability due to the provisions of the Dangerous Dog
Control Law in effect in 2011, specifically former OCGA § 4-8-30.1 The trial 1
At all times relevant to this appeal, former OCGA § 4-8-30 provided: It is the intent of the General Assembly that the owner of a dangerous dog or potentially dangerous dog shall be solely liable for any injury to or death of a person caused by such dog. Under no circumstances shall a local government or any employee or official of a local government which enforces or fails to enforce the provisions of this article be held liable for any damages to any person who suffers an 3 court dismissed the suit against the County Employees in their individual
capacities, finding that former OCGA § 4-8-30 barred the action against any
party except the dog’s owners.
The Court of Appeals affirmed the dismissal of the action against
Lowndes County and the County Employees in their official capacities. See
Wyno v. Lowndes County, 331 Ga. App. 541 (771 SE2d 207) (2015).
However, the Court of Appeals reversed the dismissal of the action against
the County Employees in their individual capacities, noting that the trial
court had failed to rule specifically on Wyno’s constitutional challenge to
former OCGA § 4-8-30. Wyno, 331 Ga. App. at 546 (3) (b).
Following remand for that purpose, and after the parties conducted
discovery, the trial court denied the County Employees’ motion for summary
judgment. In so doing, it determined that the County Employees’ duties
injury inflicted by a dog that has been identified as being a dangerous dog or potentially dangerous dog or by a dog that has been reported to the proper authorities as being a dangerous dog or potentially dangerous dog or by a dog that a local government has failed to identify as a dangerous dog or potentially dangerous dog or by a dog which has been identified as being a dangerous dog or potentially dangerous dog but has not been kept or restrained [as provided by law] or by a dangerous dog or potentially dangerous dog whose owner has not maintained insurance coverage or a surety bond as required [by law].
4 relevant to this action were ministerial in nature, thus subjecting them to
personal liability for negligence. However, in a later order, the trial court
found former OCGA § 4-8-30 to be constitutional and again dismissed each
claim against the County Employees in their individual capacities.
Here, we treat the order of dismissal in favor of the County Employees
as a ruling on a motion for summary judgment. We do so because, although
the trial court dismissed the suit based on assertions in the pleadings of
Lowndes County and the County Employees regarding the effect of former
OCGA § 4-8-30, it would not have reached that question had it granted the
County Employees’ motion for summary judgment. Such motion, in the first
instance, prompted the trial court to consider matters outside the pleadings,
including depositions given by Wyno and each of the County Employees
relevant to the question of whether the duties imposed by the Lowndes
County Animal Control Ordinance were discretionary or ministerial in
nature. See Johnson v. RLI Ins. Co., 288 Ga. 309, 310 (704 SE2d 173)
(2010).
2. Official Immunity for Ministerial and Discretionary Acts
5 Whether a public employee is afforded immunity is governed in part by
whether the act in question is ministerial or discretionary. As this Court has
previously discussed:
[U]nder the English common law, although the government was cloaked with sovereign or governmental immunity, public officials and employees were personally liable for torts they committed in the performance of their duties. However, over the years in this country the trend has been in the opposite direction. As a result, there has developed what has become known as qualified immunity or official immunity for public officials and employees. The doctrine of official immunity, developed primarily in Georgia through case law, provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority.
Gilbert v. Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476) (1994).
On November 6, 1990, the people of Georgia ratified an amendment to
the 1983 Constitution which incorporated the concept of official immunity
for discretionary and ministerial acts and provided the General Assembly
with a means of varying that immunity by legislative act. The resulting
provision, Article I, Section II, Paragraph IX (d), provides:
Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or
6 its departments and agencies[2] may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.
That provision took effect in 1991, and, “[w]ith passage of the 1991
amendment, the immunity enjoyed by public officers and employees was
made part of the State Constitution.” Gilbert, 264 Ga. at 752 (6). Such
immunity, as we have previously held, “looks a lot like” the body of
decisional law on official immunity that predated the 1991 amendment.
Lathrop v. Deal, 301 Ga. 408, 440 (III) (C) (801 SE2d 867) (2017).
3. The Relevant Duties Imposed by the Lowndes County Animal Control Ordinance are Discretionary
In this case, following remand from the Court of Appeals, the trial
court ruled that the relevant sources of law imposed ministerial duties on the 2
` We have previously held that the phrase “state or any of its departments or agencies” in Article I, Section II, Paragraph IX (a) also includes counties. See Gilbert, 264 Ga. at 747 (2). We have more recently noted that the immunity afforded by Article I, Section II, Paragraph IX (d) also “applies to county employees.” Ridley v. Johns, 274 Ga. 241, 243 (552 SE2d 853) (2001). 7 County Employees and that the negligent performance of (or failure to
perform) such duties subjected the County Employees to personal liability.
We disagree with that determination.
Whether, under the relevant facts, the County Employees are entitled to
official immunity is a question of law for the court to decide. Keenan v.
Plouffe, 267 Ga. 791, 793 (1) n.1 (482 SE2d 253) (1997), overruled on other
grounds by Shekhawat v. Jones, 293 Ga. 468 (746 SE2d 89) (2013). Because
we consider this determination following the denial of the County
Employees’ motion for summary judgment, we must view the evidence, and
all reasonable inferences drawn therefrom, in the light most favorable to
Wyno, the nonmovant. Johnson Street Properties v. Clure, 302 Ga. 51, 52 (1)
(805 SE2d 60) (2017).
Pertinent to this inquiry,
a ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.
8 (Citation and punctuation omitted.) Austin v. Clark, 294 Ga. 773, 774 (755
SE2d 796) (2014). “[T]he term ‘ministerial act,’ as it applies to the waiver of
an individual’s official immunity under [Paragraph IX (d)], is defined by the
character of the specific action taken by the government official or employee
and the amount of discretion and judgment applied in executing a specific
duty.” City of Atlanta v. Mitcham, 296 Ga. 576, 582 (2) (769 SE2d 320)
(2015).
A ministerial duty may be established by evidence such as a written policy, an unwritten policy, a supervisor’s specific directive, or a statute. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite[,] and certain as merely to require the execution of a relatively simple, specific duty.
(Citations and punctuation omitted.) Roper v. Greenway, 294 Ga. 112, 114-
115 (751 SE2d 351) (2013).
The trial court’s determination that the duties at issue here are
ministerial in nature turned primarily on its reading of Section XIII (a) of the
Lowndes County Animal Control Ordinance, which provides:
Upon receiving a report of a dangerous dog or potentially dangerous dog . . . an Animal Services Officer shall make such investigations, inquiries[,] and classifications of a dangerous dog
9 or potentially dangerous dog[3] with regard to such report or investigation as may be necessary to carry out the provisions of [the ordinance relating to Dangerous Dog Control].
Additionally, the court relied on explanations of these duties by the County
Employees in their depositions in ruling that the duties imposed were
ministerial in nature. 3
Section III (a) (16) of the Lowndes County Animal Control Ordinance defines “dangerous dog” as “any dog that, according to the records of an appropriate authority, inflicts a severe injury on a human being without provocation on public or private property, or which aggressively bites, attacks, or endangers the safety of humans without provocation after the dog has been classified as a potentially dangerous dog and after the owner has been notified of such classification.” Section III (a) (32) defines “potentially dangerous dog” as “any dog that, without provocation, bites a human being on public or private property or acts in a threatening or aggressive manner towards a person that places said person in reasonable apprehension of immediately receiving a violent injury.” Section III (a) (36) defines “records of an appropriate authority” as “records of any state, county, or municipal law enforcement agency; records of any federal or state department of agriculture; records of any county or municipal animal control agency; records of any state, county[,] or municipal board or department of health; records of any federal, state, or local court; or records of an Animal Services Officer, or of a dog control officer provided for in Georgia’s Dangerous Dog Control Law provided for in this ordinance.” Section III (a) (39) defines “severe injury” as “any physical injury that results in broken bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery or a physical injury that results in death.” Section III (a) (46) defines “vicious dog” as a “dog which, without provocation, has bitten or attempted to bite any person or another animal.” Section III (a) (48) defines “without provocation or unprovoked” to mean “that the animal at issue was not or had not been assaulted, teased, tormented, or abused by the person or domestic animal which was the subject of the act by the animal at issue, or that the animal at issue was not coming to the aid of or defending its young or was not acting against a person who was willfully trespassing or committing another willful tort or criminal act on the premises of such animal at issue’s owner or custodian.” 10 Statements in those depositions established that each complaint made
to Lowndes County Animal Control is recorded on a complaint form by a
dispatcher and passed along to an animal control officer. Such complaints
note the behavior of a dog that the complainant seeks to have addressed by
Lowndes County Animal Control. It is then up to the assigned animal control
officer to assess the problem (including, when possible, by speaking to the
complainant) and make some determination as to what remedy, if any, is
appropriate. That process involves an initial determination by the animal
control officer as to whether the complained-of dog meets the ordinance’s
definition of a “dangerous dog,” a “potentially dangerous dog,” or a “vicious
dog.” If the animal control officer determines that the dog in question is
“dangerous” or “potentially dangerous,” the officer is to report that
determination to a supervisor. The responding officer also has the authority
to impound the complained-of dog, issue a citation to the owner of such a
dog, or issue a verbal or written warning to the owner. Once a report is
provided to the supervisor that a dog should be classified as “dangerous” or
“potentially dangerous,” the supervisor determines whether the complaint
should be presented to the county Animal Control Board. If the investigating
animal control officer can confirm that the dog is properly confined and the 11 complainant does not request additional action, a complaint is not forwarded
to the Animal Control Board.
If the animal control officer cannot locate the owner of the dog when
investigating the complaint, the general practice is to leave a “door hanger” at
the owner’s residence notifying the owner that a complaint had been filed
and that the owner should contact the animal control officer promptly. The
record established that sometimes the animal control officer would follow up
with the dog’s owner after leaving a door hanger. However, if the officer
found the dog to be confined when initially responding to the complaint, the
officer had the discretion not to follow up and sometimes did not do so.
Although the record established that the animal control supervisor had
instructed the officers to conduct follow-ups, there was nothing in the animal
control ordinance or any written procedure that required such a follow-up.4 In
his deposition, Officer Eric Sharp stated that “we have so many calls,
sometimes it’s hard to follow up on some. You have to pick and choose
which ones you’re going to follow up on a lot of times[.]” Likewise,
Lowndes County Director of Animal Services Linda Patelski stated in her 4
The record reflects that, in addition to the Lowndes County Animal Control Ordinance, the animal control office created a standard operating procedure that was in effect at the time of the incident in which Misty Wyno was killed. 12 deposition that whether an officer follows up “depends upon what the officer
feels it warrants” and that it is “up to the officer’s discretion whether they felt
it was warranted or not to do a follow-up.”
As with many law enforcement duties,5 the duties described above are
discretionary in nature. Although the ordinance directs animal control
officers to make investigations and inquiries upon receiving a complaint,
such investigation is for the purpose of determining whether the report they
have received describes a dog that is vicious, dangerous, or potentially
dangerous, as described in the Animal Control Ordinance. This initial
determination necessarily requires the exercise of judgment and the
application of a legal standard to specific facts before determining that
further action is required. See Grammens v. Dollar, 287 Ga. 618, 620-621
(697 SE2d 775) (2010) (“Where the written policy requires the public official
to exercise discretion in the implementation of the written policy, the policy
does not require the performance of a ministerial duty.”).6 Then, even if the 5
See, e.g., Campbell v. Goode, 304 Ga. App. 47, 49 (1) (695 SE2d 44) (2010) (police officer’s decision whether to investigate suspicious activity is a discretionary act). 6
Compare Nelson v. Spalding County, 249 Ga. 334, 336 (2) (a) (290 SE2d 915) (1982) (“[Employee’s] duty in regard to stop signs is merely to replace those that are missing or to erect new signs where others determine it is necessary. The act of replacing and repairing signs is ministerial and not discretionary in its nature. Once 13 officer determines that a dog is “dangerous” or “potentially dangerous,” the
officer has a range of enforcement options at his or her disposal, including
issuing warnings, writing citations, or seizing the complained-of animal.
Thus, the responding officer has significant discretion with regard to the
handling of each complaint.
Moreover, although evidence in the record established that animal
control officers were directed informally to report complaints regarding
dangerous or potentially dangerous dogs to a supervisor, such duties only
arose if, as an initial matter, the animal control officer determined that the
complaint pertained to a dangerous dog or a potentially dangerous dog. Thus,
although internal policy set forth the subsequent steps to be followed in the
handling of any such complaints, determining whether a complaint required
reporting up the chain of command and further investigation was, in the first
instance, based on the judgment and analysis of the animal control officer
investigating the complaint and his or her determination as to whether a dog
was vicious, dangerous, or potentially dangerous, as described in the
ordinance. See Grammens, 287 Ga. at 621 (“Because the [policy at issue]
[the employee] is notified that a sign is missing his duty is to replace it; this duty does not involve the exercise of a discretion on his part.” (emphasis supplied)). 14 required the [employee] to perform a discretionary act to determine if the
policy was applicable, the policy did not impose a ministerial duty upon the
[employee].”).7
Based on the foregoing, we determine that the relevant duties imposed
on the animal control officers here were discretionary in nature. But “the
distinction between discretionary and ministerial acts does not completely
foreclose [the County Employees’] potential liability; [they] may be held
liable if [the] discretionary act was malicious” or taken with an intent to
injure Jason or Misty Wyno. Roper, 294 Ga. at 116.
In the context of Georgia’s official immunity doctrine, “‘actual malice’
requires a deliberate intention to do wrong.” Merrow v. Hawkins, 266 Ga.
390, 391 (467 SE2d 336) (1996). It “does not include ‘implied malice,’ i.e.,
the reckless disregard for the rights or safety of others.” Murphy v. Bajjani, 7
Compare Meagher v. Quick, 264 Ga. App. 639, 641-644 (1) (594 SE2d 182) (2003). In that case, the Court of Appeals determined that the Family Violence Act established a ministerial duty on the part of law enforcement officers to issue a Family Violence Report “whenever an incident of possible family violence is investigated by police . . . whether founded or unfounded[.]” Id. at 643 (1). The statute at issue in that case, OCGA § 17-4-20.1 (c), provides in relevant part that “[w]henever a law enforcement officer investigates an incident of family violence, whether or not an arrest is made, the officer shall prepare and submit . . . a written report of the incident entitled ‘Family Violence Report.’” The statute goes on to specify thirteen items that any such report must include.
15 282 Ga. 197, 203 (4) (647 SE2d 54) (2007). Instead, actual malice requires
more than “harboring bad feelings” or “ill will” about another; “rather, ill
will must also be combined with the intent to do something wrongful or
illegal.” Adams v. Hazelwood, 271 Ga. 414, 415 (2) (520 SE2d 896) (1999).
Moreover,
[t]he phrase “actual intent to cause injury” has been defined in a tort context to mean an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury. This definition of intent contains aspects of malice, perhaps a wicked or evil motive.
(Citations and punctuation omitted.) Kidd v. Coates, 271 Ga. 33, 33 (518
SE2d 124) (1999).
The record established that a number of complaints were filed
regarding dogs located at the address where Misty Wyno was killed. The first
such complaint was filed on November 25, 2010. Animal Control Officer
Bozeman responded to this complaint but found no owner at home. Officer
Bozeman left a door hanger at the residence alerting the owner that a
complaint had been made about a dog, that it needed to be confined, and that
the owner should contact Officer Bozeman. Officer Bozeman spoke with
three witnesses who reported that a dog from that address had behaved
16 aggressively. When he came to the residence, he noted that the dogs were not
running loose but were inside the residence. After responding to the
complaint, Officer Bozeman determined that the dogs were potentially
dangerous but did not report this to his supervisor.
Officer Bozeman responded to a second complaint the following day,
November 26, 2010, that dogs from the residence were running loose. Officer
Bozeman found no one at home and again left a door hanger asking the
owner of the dogs to contact him. Although he once again felt the dogs could
be deemed “potentially dangerous,” he did not report this to his supervisor.
A third complaint about dogs from that address was made on March 3,
2011. The animal control officer who responded to the complaint, Officer
Eric Sharp, left a door hanger at the residence and noted in his report that no
one was home and that the dogs at the residence were confined. Another
complaint was filed regarding dogs at the same residence on August 16,
2011. As with the March 3 complaint, the responding officer, Officer Sharp,
found no one at home and left a door hanger at the residence. A fifth
complaint was filed on September 20, 2011. Officer Bozeman responded to
that call and issued a verbal warning to the dog’s owner.
17 Officer Bozeman also responded to calls on October 20, 2011,
regarding a dog at the same address. That day, Officer Bozeman spoke to the
complainant but could not locate the owner, so he left a door hanger at the
residence. After responding to that call, he determined that the dog
complained of was potentially dangerous, but he did not report this to his
supervisor. The owner of the dog contacted Officer Bozeman and assured
him that her dog had been confined.
Officer Bozeman later responded to a call at that address on November
7, 2011. The report from the complainant noted that it had been a “repeat
problem,” Officer Bozeman again determined that the dog complained of was
a potentially dangerous dog, and again left a door hanger at the residence
when he could not locate the owner. The owner of the dog again contacted
Officer Bozeman and again assured him that her dog had been confined.
Animal Control Officer Emanuel Shaw responded to a later complaint
on November 15, 2011, at the same address. He could not locate the owner,
but noted that the dog at the address was confined indoors. Officer Shaw left
a door hanger at the residence.
18 Linda Patelski served as the Director of Animal Services throughout
this period. However, she was not the responding officer on any of the calls
noted above. The record does not indicate she had any contact with either
Jason or Misty Wyno.
As summarized above, the record before us is devoid of any evidence
that any of the County Employees acted with malice or intent to harm Jason
or Misty Wyno. In his deposition, Jason Wyno indicated that he did not
know any of the County Employees. Jason Wyno also stated that neither he
nor Misty Wyno nor anyone they knew had ever made any complaints to any
of the County Employees regarding the dog that attacked Misty Wyno.
Moreover, nothing in the record established that any of the County
Employees harbored any ill will or malice toward Jason or Misty Wyno or
that they intentionally conducted their investigations of dog complaints in a
manner so as to harm them.
Thus, because Wyno has not satisfied his burden of demonstrating in
the record that any of the County Employees engaged in malicious conduct
or intended to harm Jason or Misty Wyno, the immunity provided by
Paragraph IX (d) bars his action against the County Employees. We
19 therefore affirm the trial court’s grant of summary judgment in favor of the
County Employees.
Judgment affirmed. All the Justices concur.
20 NAHMIAS, Presiding Justice, concurring.
The Court concludes that the appellees — four county employees —
have official immunity from Wyno’s lawsuit under Article I, Section II,
Paragraph IX (d) of the Georgia Constitution of 1983 as amended in 1991.
As explained in footnote 2 of the Court’s opinion, that conclusion is premised
on the proposition that Paragraph IX — which addresses the sovereign and
official immunity of “the state,” its “departments and agencies,” and “officers
and employees of the state and its departments and agencies” — applies to
counties and their employees. That proposition is supported by decisions of
this Court, and we have also held that Paragraph IX applies to municipalities
and their employees.
As the Georgia Municipal Association discusses in its amicus curiae
brief, however, the foundational precedents for those holdings were sharply
divided. See Nelson v. Spalding County, 249 Ga. 334 (290 SE2d 915)
(1982) (counties under 1974 constitutional amendment); Toombs County v.
O’Neal, 254 Ga. 390 (330 SE2d 95) (1985) (counties under 1983
Constitution); Hiers v. City of Barwick, 262 Ga. 129 (414 SE2d 647) (1992)
(municipalities under 1983 Constitution); City of Thomaston v. Bridges, 264
1 Ga. 4 (439 SE2d 906) (1994) (municipalities under 1991 constitutional
amendment). See also Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476)
(1994) (less-divided opinion as to counties under 1991 constitutional
amendment). And these holdings seem to render nugatory another provision
of our Constitution that speaks expressly of the immunity of counties and
municipalities and gives the General Assembly wider authority to regulate
such immunity. See Ga. Const. of 1983, Art. IX, Sec. II, Par. IX (“The
General Assembly may waive the immunity of counties, municipalities, and
school districts by law.”). It may be appropriate to reconsider some or all of
these precedents at some point, but the parties have not asked us to do so in
this case, and there is no need to, because if Paragraph IX (d) of Article I,
Section II does not apply to county employees, there would be no question
that former OCGA § 4-8-30 of the former Dangerous Dog Control Law
precludes Wyno’s lawsuit.8 With that said, I can join the Court’s opinion in
This would be true whether former OCGA § 4-8-30 gave local government employees official immunity from suit (as has previously been assumed in the litigation of this case) or simply made clear that the former Dangerous Dog Control Law did not authorize a tort cause of action against local government employees for violation of their duties created by the Law (as the appellees argue in a supplemental brief).
2 full.
I am authorized to state that Justice Blackwell, Justice Boggs, and
Justice Peterson join in this concurrence.
Decided February 18, 2019 — Reconsideration denied March 13, 2019.
Dangerous Dog Control Law; official immunity. Lowndes Superior
Court. Before Judge Hardy.
O. Wayne Ellerbee; John G. Edwards, for appellant.
Elliott, Blackburn & Gooding, James L. Elliott, for appellees.
Rusi C. Patel, Susan J. Moore; G. Joseph Scheuer, Kelly L. Pridgen,
Larry W. Ramsey, Jr., amici curiae.