McRae v. Hogan

• Decision Date: 05 October 2012
• Docket Number: A12A1286.,Nos. A12A0912,s. A12A0912
• Parties: McRAE v. HOGAN et al. (two cases).
• Court: Georgia Court of Appeals

317 Ga.App. 813

732 S.E.2d 853

McRAE

v.HOGAN et al. (two cases).

Nos. A12A0912, A12A1286.

Court of Appeals of Georgia.

Oct. 5, 2012.

Margie McRae, pro se.

Brown, Readdick, Bumgartner & Carter, Terry Lee Readdick, Steven G. Blackerby, Brunswick, for Appellees.

ADAMS, Judge.

At about 1:00 a.m. on September 23, 2005, Margie McRae, a retired surgeon from California, was pulled over while driving 25 mph in a 35 mph zone on the way to her vacation home on St. Simons Island. She contends she was the target of racial profiling, and in October 2007, she filed suit in the Superior Court of Glynn County against the arresting officer, other officers, the chief of police, and several Glynn County commissioners. As part of an extended and convoluted procedural history, summary judgment was granted in favor of the defendants. McRae, acting pro se, appeals that and other rulings. Additional motions remain pending below.

The record shows that on September 21, 2007, McRae filed a complaint for damages, raising four claims, which, in her own words, are (1) racial profiling; (2) negligent supervision; (3) negligent retention; and (4) harassment. She asserts that Officer Barbara Hartman “profiled and stopped” her based on her race and without reasonable suspicion of wrongdoing; that even though Hartman had determined that McRae had a valid license, she gave McRae a verbal warning for an invalid license; and that she filed a false police report. McRae alleges that the other defendants are liable because they failed to properly supervise Hartman; their response to McRae's complaint shows bias and “a pattern of lack of objectivity in responding to concerns”; and they “engaged in a course of conduct that has driven plaintiff away from her home on St. Simons Island.” In support she alleged several prior incidents have occurred between her and the various defendants.

After the defendants answered, McRae filed two motions for partial summary judgment. In response, the defendants relied solely on McRae's testimony and did not introduce evidence of their own; and they objected to the authenticity of documents that they appear to have generated. In April 2008, the judge denied McRae's motions. On June 12, 2008, the defendants moved for summary judgment, again relying solely on McRae's testimony, and on July 22, 2008, the court granted summary judgment in their favor on the ground that McRae had failed to respond to the motion. At about the same time, the court granted the defendants' motion for a protective order regarding McRae's attempt to notice certain depositions, for the reason that discovery had expired. In response, McRae simultaneously moved to vacate the court's orders, moved for an extension of discovery, and, on August 21, 2008, filed a notice of appeal. Although the reason is unclear, in October 2008, the case was returned to the superior court pending resolution of the motion to vacate summary judgment. The case remained in that posture for three years with no activity in the trial court.

On October 24, 2011, McRae moved to recuse the judge. On November 2, while the motion to recuse was pending, the judge issued an order denying McRae's motion to vacate the summary judgment order. McRae then moved for reconsideration and for a change in venue, but she also filed a notice of appeal regarding the November 2 order and all prior orders. Thereafter, McRae's original appeal was finally docketed in this Court as Case No. A12A0912, and her new appeal was docketed as Case No. A12A1286. We have consolidated the two cases for review.

Meanwhile, twelve days after McRae filed her latest notice of appeal, the judge recused herself from the case, and she later resigned. In response to the recusal, McRae moved in the trial court to vacate all orders previously entered by the judge. The newly assigned judge entered an order noting that McRae's notice of appeal serves as a supersedeas ¹; accordingly he held that he lacked jurisdiction to act on McRae's motions.

In the combined cases, McRae asserts the trial court erred (1) by granting summary judgment against her by default; (2) by granting the defendants' motion for a protective order; (3) by denying her multiple motions for partial summary judgment; (4) by not following required procedures to address her motion to recuse; (5) and by not voiding all orders entered by the original judge. In another enumeration, she argues that because the trial court has not ruled on her motion to void all orders entered by the original judge, the case is not ripe for appeal. We will address these issues in a different sequence.

1. We first address McRae's contention that the trial court erred by denying her two motions for partial summary judgment. 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 S.E.2d 564 (2003). Thus, in connection with McRae's motions, we construe the facts in favor of the defendants, while, in considering the defendants' motion, we will construe the facts in favor of McRae. Because McRae's motions are so narrowly focused and because the related facts must be construed in favor of the defendants, we will address only the facts pertinent to McRae's motions in this division, and will provide a more complete recitation of the facts of the traffic stop in addressing the defendants' motion below.

(a) In her first motion, McRae attempted to establish as a matter of law and undisputed fact that Hartman performed the traffic stop without reasonable suspicion. McRae acknowledges that Hartman claims that she was weaving within her lane of travel, which McRae disputes. McRae contends the video of the incident refutes this claim. But the defendants objected to admission of the video for purposes of summary judgment,² and McRae failed to attempt to authenticate the video; moreover it is unclear from the trial court's order denying McRae's motion what action it took, if any, in response to the defendants' objection. Nevertheless, our own viewing of the video leads us to conclude that there is an issue of fact, anyway, which is material and relevant to the determination of whether Hartman had reasonable suspicion to make the stop. “The police can stop drivers who engage in erratic driving behavior, even if it is simply weaving within a lane.” (Citations and punctuation omitted). Veal v. State, 273 Ga.App. 47, 50, 614 S.E.2d 143 (2005). We conclude the trial court did not err by denying McRae's first motion for partial summary judgment.

(b) In her second motion, McRae attempted to establish as a matter of law and undisputed fact that Hartman gave her a warning for driving on an invalid license even though Hartman had learned that McRae's license was valid during the stop by communication over the “TTY”; thus, McRae contends, Hartman gave a false warning. She argues that Hartman and her superiors who ratified the act engaged in an intentionally false act and that because they did not know the law, their behavior was unreasonable and indefensible. But McRae has not introduced proof of the “TTY” communication. Nor has she explained how the allegation is material to her claims. Thus we cannot conclude that summary judgment on this point was improperly denied based on the record available at the time.³

2. Turning next to the defendants' motion for summary judgment, we hold that the initial judge erred by ruling on McRae's “Motion to Vacate Summary Judgment Granted Defendants”—a motion addressing the merits of the case—while the motion to recuse was pending. See Uniform Superior Court Rule 25.3. ⁴ Although under other circumstances we might review the motion to recuse de novo and determine whether to uphold the order entered pending the motion,⁵ here the issue is moot because the judge in fact recused herself stating that she “[had] determined that it is necessary that she recuse herself from hearing or ruling in the above captioned matter.” ⁶ We therefore cannot avoid the implication that she granted McRae's motion to recuse and had reasonable grounds to do so. Accordingly, we conclude that the decision on McRae's motion to vacate summary judgment is invalid and of no effect. See Propst v. Morgan, 288 Ga. 862, 864, 708 S.E.2d 291 (2011) (“if ... it is later determined that the judge should have been disqualified to act in the case, all proceedings after the filing of the motion to recuse are ‘invalid and of no effect.’ [Cits.]”) (emphasis supplied).

3. Next, the trial court's original order granting summary judgment in favor of the defendants was based on an erroneous legal theory. The order itself makes clear that the decision was based on the fact that McRae failed to timely respond to the motion.⁷ See, e.g., Robertson v. Wheeler, 208 Ga.App. 68, 69(1), 429 S.E.2d 714 (1993) (order plainly stated that court found no issue of fact because defendants failed to respond to motion for summary judgment). But “[t]here is no such thing as a default summary judgment.” (Punctuation omitted.) Milk v. Total Pay & HR Solutions, 280 Ga.App. 449, 450–451, 634 S.E.2d 208 (2006). Rather, the effect of failure to timely respond “waives the opponent's right to present evidence in opposition to the motion. [Cits.]” Landsberg v. Powell, 278 Ga.App. 13, 15, 627 S.E.2d 922 (2006).⁸

[317 Ga.App. 818]4. Under these circumstances—where the trial court relied on an erroneous legal theory—we have discretion either to perform an independent de novo review of the record that was properly before the trial court in order to determine whether summary judgment was appropriate for another reason or to return the case to the trial court for further proceedings. City of Gainesville v. Dodd, 275 Ga. 834, 838–839, 573...