DOUGLAS ASPHALT CO. v. LINNENKOHL No. A12A1933.
741 S.E.2d 169 (2013)
320 Ga. App. 427
DOUGLAS ASPHALT COMPANY et al., v. LINNENKOHL et al.
Court of Appeals of Georgia.
March 15, 2013.
Kenneth E. Futch Jr. , Waycross, Sherri Naomi Watts , Brent J. Savage , Savannah, for Appellants.
Thurbert E. Baker , Atlanta, Samuel S. Olens , Joan Gale Crumpler , Kathleen M. Pacious , Loretta L. Pinkston , for Appellees.
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.
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 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.
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 S.E.2d 105 (2007).
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 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 S.E.2d 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:
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.
DOYLE, P.J., and PHIPPS, P.J., concur.
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